R v AB

[2011] ACTSC 204

R v AB [2011] ACTSC 204 (16 December 2011)

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

Crimes Act 1900 (ACT) ss 26, 56, 61, 62(1), 92EA, 92K, 92L
Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40, 43, 46, 51, 52, 53
Supreme Court Act 1933 (ACT) s 68C
Criminal Procedure Act 1986 (NSW), s 33(2)

DF v The Queen [2011] ACTCA 11
Fleming v The Queen (1998) 197 CLR 250)
Leonard v The Queen (2006) 164 A Crim R 374
Papakosmas v The Queen (1999) 196 CLR 297
R v CH and JW [2010] ACTSC 75
Williams v The Queen (2000) 119 A Crim R 490

Odgers S, Uniform Evidence Law (9th ed, Thomson Reuters, 2010)
Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)

No.  SCC 427 of 2008

Judge:             Penfold J
Supreme Court of the ACT

Date:              16 December 2011

IN THE SUPREME COURT OF THE     )
  )          No.  SCC 427 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R

v

AB

ORDER

Judge:  Penfold J
Date:  16 December 2011
Place:  Canberra

THE COURT FINDS THAT:

1.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of, the complainant, a boy under the age of 10 years, namely seven years old – the accused is guilty.

2.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son – the accused is guilty.

3.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused assaulted the complainant – the accused is guilty.

4.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of, the complainant, a boy under the age of 10 years, namely seven years old – the accused is guilty.

5.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son – the accused is guilty.

Introduction

1. The accused was arraigned before me on six counts, the first five of which were as follows:

   Count 1:        That between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of,  the complainant, a boy under the age of 10 years, namely seven years old.

   Count 2:        That between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son.

   Count 3:        That between 1 December 1998 and 15 January 1999 at Canberra, the accused assaulted the complainant.

   Count 4:        That between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of, the complainant, a boy under the age of 10 years, namely seven years old.

   Count 5:        That between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son.

2. Count 6 was:

   That between 1 December 1998 and 15 January 1999 at Canberra, the accused, then being an adult, maintained a sexual relationship with a young person, namely the complainant.

3. The incidents to which Counts 1 to 5 related were particularised in the case statement that was accepted as the opening of the prosecution case.

1. The indictment as amended at the beginning of the trial identified Count 6 as an alternative to the five other charges, but in his written submissions the prosecutor said that Count 6 was in fact an alternative to Counts 1 to 4.  As it turned out, the status of Count 6 has not become relevant.  The charges arose under provisions of the Crimes Act 1900 (ACT), currently numbered as ss 26 (common assault), 56 (maintaining a sexual relationship with a young person), 61 (acts of indecency with young persons) and 62(1) (incest). All relevant provisions in their forms as at the offence period specified in the indictment are set out in Appendix A – Relevant legislation to this judgment.

1. The accused pleaded not guilty to all charges.

Judge-alone trial

1. The accused elected to be tried by judge alone.

1. Section 68C of the Supreme Court Act 1933 of the ACT specifies the procedures to be followed for a trial by judge alone. 

1. The judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts (s 68C(1)).

1. The judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case (s 68C(3)). Since November 2010, s 68C(3) has also required the judge to take account of directions and comments that would have had to be given or made to a jury, and has applied to warnings, directions and comments under the Evidence Act 1995 (Cth) as well.

1. The judge must provide a judgment setting out the principles of law he or she applied and the findings of fact on which he or she relied (s 68C(2)).  In Fleming v The Queen (1998) 197 CLR 250), the High Court considered s 33(2) of the Criminal Procedure Act 1986 (NSW), which was in relevantly identical terms to s 68C(2), and said at [28]:

... whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

1. In DF v The Queen [2011] ACTCA 11, the Court of Appeal (Gray P and Rares J, Teague AJ dissenting) indicated that too specific an analysis of evidence given on behalf of an accused, and in particular any explanation of the impact of that evidence on the Crown case, may be interpreted as demonstrating a reversal of the onus of proof. The judge must not approach “the assessment of the evidence so as to fragment it inappropriately” (at [11]). There is a fine line to be trodden between, on the one hand, exposing the reasoning process justifying the findings and the verdict and, on the other hand, inappropriately fragmenting the assessment of the evidence.

1. As noted, in a judge-alone trial the judge must now give herself certain directions equivalent to those that would be given to a jury.  Those directions include general directions relating to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and specific directions that may be required in the particular trial; the directions I have given myself in this trial are set out in Appendix B.

Evidence identifying complainant

1. This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act), involving a child and his father. Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.

1. In these reasons, therefore, I do not refer to the name of the complainant or of his father the accused, or to the names of witnesses who gave evidence, or other family members mentioned in the trial, if the publication of those names might identify the complainants.  I have added an appendix to these reasons (Appendix C) which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.

Background to the charges

1. The following outline reflects undisputed evidence. 

1. The complainant C was born on 16 January 1991.  In 1996, his mother H was in a serious car accident which left her in hospital for several weeks and on crutches for somewhat longer.  While H was in hospital and then in a rehabilitation facility, C’s father, the accused AB, took C away from Canberra, and AB and C moved around country New South Wales for the next two years.  In late 1998 AB and C returned to Canberra.  For some time they lived in a flat in Gowrie Court.  H discovered they were living in Canberra, and shortly before C’s eighth birthday in January 1999 she tried to take him away from AB.  Her first attempt was unsuccessful but in mid-February 1999, having obtained authority from a court, she collected C from his school, and he did not thereafter return to live with AB.

1. Some months after C went to live with his mother H and her partner R, a complaint was made to police about alleged sexual abuse of C by AB.  C took part in a taped record of interview, and H and R made statements.  C was examined by a doctor with relevant expertise. 

1. H died in 2006.  AB was not located by police until 2008 and he was proceeded against on indictment dated 4 February 2009.

The witnesses

1. Evidence was given by C, his late mother’s partner R, the original informant Detective Superintendent Michael Chew (DS Chew), Dr Suzanne Packer from the Child at Risk Health Unit at The Canberra Hospital, and the accused AB.

Failure of defence witnesses to appear

1. Two other witnesses were subpoenaed by the accused.  They failed to attend as required on 9 April 2010, and the matter was adjourned.  Fresh subpoenas were issued.  Again the witnesses failed to answer the subpoenas, and on 6 May 2010 I agreed to issue arrest warrants. 

1. One of the witnesses, AB’s adult daughter E, was arrested on 19 May 2010 and brought to court.  She was bailed to attend court later to give evidence, and in due course a medical certificate dated 24 May 2010 from Dr Peter Sharp at the Winnunga Nimmityjah Aboriginal Health Service was received in evidence as follows:

This is to certify that [E] has been a patient of mine since 1997.  [E] has suffered from Epilepsy and developmental delay since soon after birth.  She is on regular anti epileptic medication but has required regular hospital admission for many years

[E] has difficulty with communication.  She has difficulty understanding proceedings that she is not used to.  Her verbal skills are poor and she requires the support of a close and trusted family member when dealing with health professionals and others.

1. In these circumstances, counsel for the accused did not seek to call E to give evidence, and she was excused and discharged from bail.

1. The second witness CJ, the partner of E, was not located before 28 May 2010, at which point defence counsel closed his case, and I discharged the arrest warrant naming CJ.

Credibility of civilian witnesses

1. Detailed assessments of the credibility of C and AB are respectively at [143]-[186] and [0]-[198] below.  At this stage I note that R, the only other civilian witness, who maintains a relationship with C and still thinks of C as his step‑son, impressed me as both a decent person and a truthful witness.

Expert witness—Dr Suzanne Packer

1. Dr Suzanne Packer works at the Child at Risk Health Unit (known in 1999 as the Child at Risk Assessment Unit) at the Canberra Hospital.  Dr Packer has Bachelor of Medicine and Bachelor of Surgery degrees, has been a paediatrician since 1972 and a Fellow of the Royal Australian College of Physicians since 1974, and has received an AM for her work in paediatrics and child protection.  Since 1990 she has examined in the order of 5,000 children, including at least several hundred young males, and she has regularly conducted professional development training, including three-day workshops on sexual abuse, physical abuse and court reports, and her work has involved almost exclusively the area of abuse of children (including physical, sexual and emotional abuse and neglect).   

Effect of delay in bringing matter to trial

1. Although this trial took place 11 years after the alleged offences, the initial complaints were made quite quickly, and the delay in bringing the matter to trial was largely caused by the disappearance of AB shortly before the police became involved.  The significant consistency between C’s complaints made 11 years earlier and the evidence he gave at trial is one of the reasons why I have found his evidence convincing.

Evidence

1. The evidence before me consisted of oral evidence from C, R, DS Chew, Dr Packer and AB, and exhibits comprising C’s birth certificate, a variety of documents from ACT Housing, and C’s school records from his brief period as a pupil at Narrabundah Primary School.

Evidentiary issues

1. A number of evidentiary matters were raised in the trial, including:

(a) the admissibility of the statement made to police by C’s now-deceased mother H (at [29]-[36] below);

(b) the significance of evidence of C’s original complaint (at [37]-[51] below);

(c) the admission of evidence of uncharged acts (at [52]-[58] below); and

(d) the admissibility of evidence of sexual activities of a complainant (at [59]‑[66] below).

Statement of deceased mother

1. Because C’s mother H had died, the prosecutor sought to have her 1999 statement to police put in evidence by the police officer concerned in reliance on an exception to the hearsay rule. 

1. If the police officer had been permitted to give evidence of H’s police statement (her “previous representation” for the purposes of (s 62(1) of the Evidence Act), that evidence would have been evidence that C had made a relevant complaint to her (the “asserted fact”).

1. In the event, I excluded the statement on the basis that it did not satisfy any of the criteria in s 65(2) of the Evidence Act for the admission of first-hand hearsay where the maker of the representation (in this case H) is not available to give evidence.

1. In particular, H’s representation could not be said to have been made “when or shortly after” the asserted fact, being C’s complaint, occurred (s 65(2)(b)). In Williams v The Queen (2000) 119 A Crim R 490, the Full Federal Court at [48] relied on an explanation of that test as requiring the representation to have been:

made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact.

1. That test as explained by the Full Federal Court does not in my view describe the usual situation of making a police statement, and it did not describe the situation in which H made her police statement.

1. Nor could H’s representation be said to have been made in circumstances that made it “unlikely to be a fabrication” (s 65(2)(b)), given the scope, and alleged motive, for a report of a complaint of the relevant kind to have been fabricated by H and R in collusion with C (see [148] below).  For the same reasons, the complaint could not be said to have been made in circumstances that made it “highly probable” to be reliable (s 65(2)(c)).

1. In asserting that H’s representation was “unlikely to be a fabrication”, or was “highly probable” to be reliable, the prosecutor referred to the fact that the statement was made to a police officer and that H had acknowledged that a false statement might expose her to prosecution. It would be nice to think that such an acknowledgement would make it unlikely that the maker of such a statement would fabricate a story, and would make it likely to be reliable, and there may be cases in which such faith would be justified. However, even if such a circumstance may sometimes be relevant in the application of s 65(2)(b) or (c) of the Evidence Act, as to which I express no view, I was not satisfied that the making of H’s representation, in a police statement complete with acknowledgement, was sufficient in the circumstances of this case to make a fabricated representation unlikely or to make the representation highly probable to be reliable.

1. My conclusion that H’s statement was not admissible under s 65(2)(b) or (c) of the Evidence Act did not reflect any view on my part that H’s statement was likely to be a fabrication, only that for the purposes of its admission under s 65(2), the prosecution had not established that the circumstances of its making made the statement either:

(a)    unlikely to be a fabrication; or

(b)   highly probable to be reliable. 

Other evidence of C’s complaints

1. Oral evidence of the complaints C made in 1999 was given by C but also by R, DS Chew and Dr Packer. 

1. At one point there was preliminary argument about whether complaint evidence, was admissible, despite the hearsay rule, under s 66(2) of the Evidence Act as evidence of a representation of an asserted fact that was fresh in C’s mind when he made the representation. However, like the argument in relation to C’s deceased mother’s statement (at [29]‑[36] above), this argument was on its face directed to the possible admissibility of police statements rather than of direct evidence to be given at trial (in particular the statement made by R in which he described C’s original complaint).

1. After some argument, the prosecutor conceded that the police statements provided no specific evidence of any of the charges (with the possible exception of Count 6, the alternative count of maintaining a sexual relationship), and were relevant only to C’s credibility. As such, he conceded, the admissibility of the police statements should be determined under s 108 of the Evidence Act. 

1. The admissibility of these police statements was in fact not raised again, and they are accordingly not in evidence.

1. As mentioned at [38] above, there was no explicit objection, either during the hearing or in written submissions, to the direct evidence of complaints provided by R, DS Chew and Dr Packer. It was, however, implicit in some of defence counsel’s argument about the police statements that he did not concede the admissibility of the direct evidence of C’s complaints, because of the requirement under s 66(2) that the relevant asserted facts (generally, that AB had sexually assaulted C) were fresh in C’s memory when the complaints were made.

1. Unfortunately, there was no return to this argument either when the relevant witnesses were called or in the written submissions made after the parties had closed their respective cases. 

1. It is therefore necessary for me to indicate the basis on which that direct evidence of complaints has been received, namely that the evidence is relevant, and was admitted under s 66(2) of the Evidence Act as an exception to the hearsay rule.

1. I am satisfied that evidence of C’s complaints of repeated sexual interference by AB is relevant to the facts in issue in this trial, namely whether AB committed specified acts on C as alleged in the indictment.  C’s complaints as reported by those to whom they were made did not provide details of particular incidents as charged in Counts 1, 2, 4 and 5, but the making of the complaints at all, and their general consistency with C’s specific evidence, could rationally affect my assessment of the probability of the existence of the specified facts alleged in the indictment (Evidence Act s 55(1)). In Papakosmas v The Queen (1999) 196 CLR 297 the possible relevance of complaint evidence in sexual offence proceedings was accepted. For instance, Gaudron and Kirby JJ noted at [49] that this was recognised by the common law:

Further, evidence that a statement was made may counter an inference that could otherwise be drawn.  Thus, the common law permits evidence of early complaint in sexual cases to counter an adverse inference that might be drawn with respect to the complainant’s credit “because of the tendency of people to assume ... that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false”. (citations omitted) (ellipses in original)

1. The current case is clearly one in which the absence of complaint at an appropriately early point might have been relied on for an inference that the complaint had been fabricated.

1. As to whether the relevant events were fresh in C’s memory when his complaints were made (s 66(2)), s 66(2A) permits such a determination to be made taking account of:

(a)the nature of the event concerned; and

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

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

1. First, the events, described by C among other things as causing “really excruciating pain” (at [114] below), were likely to have made a significant impression on him. In taking that view, I note the summary in Odgers S, Uniform Evidence Law (9th ed, Thomson Reuters, 2010) (Odgers) at [1.3.2320] of the reference in Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) to psychological research about the proper approach to determining whether a memory was “fresh”, which includes the following:

·   Contrary to the view that “negative emotion, stress and anxiety generally hinder memory function”, the research tends to show that “the significant central actions of an emotionally arousing event are likely to be better remembered than ordinary non-emotional events, even if peripheral details cannot be recalled” (paras 8.88-8.98).

·   “Traumatic memory” has its own features distinct from memory for emotional events (paras 8.109-8.111).

·   The proposition that memory is likely to be lost rapidly after an event is less true for a “remarkable event” than for an unremarkable memory –   “how quickly something is forgotten depends upon its subjective significance, both at the time the event was witnessed, and in the days, weeks and months following the event” (paras 8.99-8.104).

1. Secondly, it is true that C was only seven years old at the time of the alleged abuse, turning eight immediately thereafter, but the evidence of the recipients of his complaints (which I consider for this purpose as given on a voir dire) about the contents of those complaints and the way they emerged suggests to me:

(a)    that his recall of the relevant events was clear; and

(b)   that the gradual emergence of the complaints did not reflect the revival of an otherwise fading memory but the development of a situation in which he recognised both the need to explain his own behaviour and the scope for doing so safely.

1. Finally, the evidence is that C’s initial disclosures were made no more than about two months after the sexual abuse ceased; I see no basis for assuming that the kind of conduct he reported in 1999 and gave evidence of at trial would have faded from his memory in such a period.

1. Accordingly, I am satisfied (on the balance of probabilities – Evidence Act s 142(1)) that the complaints made by C in the first half of 1999 to R and subsequently to DS Chew and Dr Packer were of events that would have been fresh in C’s memory when the complaints were made, and therefore that the evidence of C’s complaints given by R, DS Chew and Dr Packer is admissible under s 66(2) of the Evidence Act. No application was made under s 135, 136 or 137 for that evidence to be excluded or for its use to be limited, or under s 165 for me to warn myself about the reliability of the evidence. 

1. Evidence of C’s 1999 complaints is therefore available to me as evidence of the truth of the facts asserted by C and also as evidence in support of C’s credibility.

Evidence of uncharged acts

1. C’s evidence of uncharged acts was admitted by consent as evidence only of the context in which the charged acts were said to have taken place.

1. The evidence from C was to the effect that the two acts of anal intercourse he described, particularised by reference to how each incident began, were not the only ones, and that similar incidents had happened on several other occasions.  In cross‑examination the following evidence was given:

So just in relation to days, I’m just trying to get some perspective about this.  There’s an incident with your father that you told us about, Justin ...‑‑‑Yes.

And then the second one with your father?‑‑‑Yes.

Well how far apart are they?‑‑‑Well there was more than just two occasions that he done it to me on.

Well I’ve confined my question to Gowrie Court and you understand what I was asking you, is that right?‑‑‑Yes, yes.

And you’ve told us there were two incidents at Gowrie Court with your father?‑‑‑Yes.

Is that correct?‑‑‑Yes.

Then you said something about Goulburn and Taree?‑‑‑Yes.

I’m only confining my questions to Gowrie Court?‑‑‑Okay.

Do you have any difficulty with understanding my question about Gowrie Court?‑‑‑No.

So I’ll ask you again.  You’ve told us of two incidents at Gowrie Court with your father?‑‑‑Yes.

Is that right?‑‑‑Yes.

Only two?‑‑‑There was more than two but I’ve only talked about two.

1. In re‑examination C gave this evidence:

Now [C], you’ve just said that it happened maybe four or five more other times?‑‑‑No, four, five times all up, sir, sorry, I didn’t say exact‑ ‑ ‑

What is it exactly that happened four or five times all up?  Can you describe what it is that happened?‑‑‑Just masturbating him and having anal sex with me.

Right.  And that happened on four or five times all up while you were in Gowrie Court?‑‑‑Yes.

And that as you’ve described touching his penis?‑‑‑Yes.

And his putting his penis in your bottom, is that correct?‑‑‑Yes.

...

Just in relation to those four or five incidents you’ve described happen in Gowrie Court, are you able to recall the first time that something happened?‑‑‑No, sorry, I can’t.  I can’t exactly remember from the first time to the last time.

1. As to the significance of that evidence of uncharged acts, I note the comments of Hodgson JA in Leonard v The Queen (2006) 164 A Crim R 374 at [55], quoted in Odgers at p 463 in the context of an assessment of the prejudicial and probative value of such evidence:

If the evidence is of a generalised nature by the complainant alone, it would not in my opinion have [a prejudicial effect outweighing its probative value].  It can easily be made clear to the jury that the evidence is only to show that the complainant’s account of the assaults charged is not implausible because they would not have happened in that way if they were isolated incidents, and that there is no greater reason to accept the complainant’s evidence that there were other incidents than to accept her evidence that the charged assaults occurred:  the two generally stand or fall together.

1. In this case, given the brief period during which the charged acts were said to have occurred, there would be nothing particularly surprising about there only having been the two incidents reflected in the charges.  Thus the more general evidence is not of much significance in excluding implausibility.  On the other hand, the general evidence has no independent prejudicial effect beyond that of C’s evidence of the charged acts; in Hodgson JA’s words, the two aspects of C’s evidence “stand or fall together”.

1. Given the basis on which C’s evidence of uncharged acts was admitted (see [52] above), I have directed myself that the evidence must not be used to show a tendency or propensity on AB’s part, and have borne in mind Hodgson JA’s comments quoted at [55] above. The evidence of uncharged acts could, at best, address any question about why AB had only acted as charged on the two occasions alleged, but as noted this is not a question that appears to arise in this case. Nor could the evidence, even accepted beyond reasonable doubt, enhance or assist C’s evidence about the two specific incidents charged. This presumably explains why the evidence was not objected to as “context” (or “relationship”) evidence.

1. The admission of evidence of uncharged acts as “context” or “relationship” evidence raises a question in my mind about the possible significance of the evidence in relation to the alternative charge of maintaining a sexual relationship; however as already noted, that charge does not in the event need to be considered.

Prior sexual activity

1. Sections 51-53 of the Miscellaneous Provisions Act are set out in Appendix A.  They restrict the admissibility in sexual offence proceedings of certain evidence of other sexual activities of the complainant.

1. Both counsel applied for leave under s 52 to adduce evidence about certain sexual activities of C.

1. The prosecutor sought leave to adduce evidence of C’s masturbation by way of an explanation for the questions asked of C by his mother and her partner R, which in due course elicited C’s complaints of sexual abuse by AB. 

1. Defence counsel sought leave to cross-examine C about another sexual assault that C claimed had taken place during the same period as the assaults with which the accused is charged.

1. Neither application was opposed.

1. I am satisfied that evidence of C’s masturbation has substantial relevance to the facts in issue (namely whether he was sexually assaulted by his father) to the extent that it is part of the explanation for the making of C’s complaints against his father. 

1. In R v CH and JW [2010] ACTSC 75 at [42] I expressed the view that a sexual assault of a victim would not fall within the expression “sexual activities of [the victim] with [the assailant]”; similarly in this case I consider that an alleged sexual assault on C by a third party is not properly described as a “sexual activity of” C. However, if it is caught by the description, then I am satisfied that in this case the possibility of a sexual assault on C, during the same period as and of a similar nature to the assaults he alleges against his father, has substantial relevance to the fundamental issue of whether his father committed any such assaults, especially in relation to assessing both the contents of C’s complaints and the evidence of the doctor who examined C several months after the alleged assaults.

1. Accordingly, leave was given in accordance with each application. Section 53(4) of the Evidence (Miscellaneous Provisions) Act requires the Court to provide written reasons for giving such leave.  Paragraphs [59] - [65] above are those reasons.

The evidence

C’s birth date and parentage

1. C’s birth certificate was tendered.  It showed C’s date of birth, being 16 January 1991, and C’s parents, being H and AB. Both parents are listed as “informants” on the certificate.

AB takes C away from H

1. In 1996 AB, H and their two children M1 and C were living in Tumut.  They came to Canberra to visit AB’s uncle and H was involved in a serious car accident while in Canberra; AB said in evidence that she had “stolen” his car to go and get some grog.  H then stayed in Canberra for some time, first in hospital and then in a rehabilitation unit of some sort.  AB sent M1 to stay with his mother in Goulburn, but kept C with him.  AB and C stayed at relatives’ accommodation at the hospital for periods described variously by AB as two months, three weeks, four weeks and about a month, but when H moved into a rehabilitation unit, described by AB as “a single bedroom flat ... for sick people”, there was no room for AB or C.

1. AB took C and they left Canberra.  AB gave descriptions of the circumstances in which he left Canberra with C.  He gave the following evidence in chief:

That was a motor vehicle accident?---Yes.

As a consequence was [H] in hospital in Canberra for quite a lengthy period of time?---Yes.  Yes.

Where were you and the children then?---Well I sent [M1] - because we had nowhere to stay, I sent [M1] back to my mum’s in Goulburn and then me and [C], we stopped at the hospital - it’s a room for - - -

For relatives?---Yes.

And the hospital is the Woden Hospital?---Woden Hospital.

I think it’s now called Canberra Hospital.  How long did you stay there with [C]?---Gee, probably four weeks.

From there where did you go?---We went back to Goulburn.

With [C]?---Yes.

How long did you stay in Goulburn for?---Probably a month.

By this time was there any contact between you and [H]?‑‑‑No.

1. In cross-examination he said:

So, after the accident you and [C] left, didn’t you?---Yes.  About three weeks later, left the hospital.

Where did you go then?---We went to Goulburn to my mum’s place.

When you visited [H] in hospital was she conscious?---Yes.

Did you talk to her?---Yes.

Did you tell her you were taking [C] and leaving?---Well I said “I’d stay with you as long as we could”.

No, answer the question?---Yes.

Did you tell her that you were taking [C] and leaving?---No.

You didn’t?---No.

You just up and left with [C]?---No.  We stayed at the hospital.

I said when you left?---Left where, Canberra?

When you left the hospital in Canberra and took [C], did you tell

her ‑ ‑ ‑?---No, I never told her nothing.

Exactly.  So you just up and took your son and went?---Yes.

There was no more contact with his mother until February ‘99, is that correct?---That is right.

...

Okay.  So until June ‘96 it would be fair to say you were together?‑‑‑Yes.

Right.  And what caused the split up then?‑‑‑It wasn’t June in ‘96 when we split up.  We split up before that.

Well I’m asking you when it was?‑‑‑Well it was, like, after she came out of hospital is when we split up.  That’s when I took [C] to Goulburn and I’ve never ever been in contact with [H] ever since.

I think I just need to clarify because it’s not clear to me - I’ve maybe made an assumption that you split up when she was in hospital?‑‑‑No, after she got out.

Right?‑‑‑She was living in Condamine Flats in Condamine Street.

Right.  And what caused that split up?‑‑‑Nothing.  Because she was on crutches and she had to go to the doctor’s and everything every second day and that and we couldn’t stay in the flat with her because it was a single bedroom flat, it was for sick people.  Welfare people, you know, that can’t afford things.

So did you talk to her when you - - -?‑‑‑Yes.

- - - decided to leave - - -?‑‑‑Yes.

- - - with [C]?‑‑‑Yes.

Yes.  And what did you say to her?‑‑‑I said to her, well, we cannot stay here.  We are going over to my mum’s where we’re welcome.  That’s the words I said.  I said we cannot stay here because we’re not allowed in this place, you know.  It was just for her and for her only.

From that day you haven’t spoken to her?‑‑‑I have never spoken to her ever since.

...

I’m asking you questions now about 1996?‑‑‑Yes.

After the accident?‑‑‑Accident, yes.

When you took [C] and left?‑‑‑Yes.

Okay?‑‑‑Yes.

Now, I was asking you questions about that and why you left with [C] then?‑‑‑We had nowhere to live.

Right.  And so I’m saying to you what is it you said to [H] when you left with [C]?‑‑‑I said we’re going home to mum’s.  When you are better you can come and get the kids.  That’s the words I said to them.

1. That is, AB’s evidence was variously:

(a)    that he told H he was leaving and taking C to his mother’s place;

(b)   that when he left with C he had told H nothing about taking C and leaving;

(c)    that when he left with C he had told H she could come and get the kids when she was better; and

(d)   that he had never spoken to H since he left, and that C had no more contact with H until she found him in early 1999.

AB and C travel around NSW

1. C and AB both gave evidence about the period between 1996 when they left Canberra and 1998 when they returned (I note that both witnesses appeared to use “Sydney” and “Campbelltown” interchangeably in giving their evidence).

1. C was five years old when his mother H had the accident, and eight when she reclaimed him.  It is unsurprising that his account of where he and his father lived during that three-year period is not particularly specific.  He said that:

(a)    after the accident his mother could not look after him and AB took him and they went to Campbelltown;

(b)   later they lived in Goulburn and Taree;

(c)    at the beginning of 1998 he and AB were living “all over the place”, being Sydney, Goulburn and possibly Taree;

(d)   they moved back to Canberra in late 1998.

1. AB’s account of this period was as follows:

(a)    After H’s accident in 1996 he sent his daughter M1 to his mother’s place in Goulburn, and he and C went to Goulburn about a month later.

(b)   From Goulburn he and C went to AB’s daughter’s place near Campbelltown, where they stayed for two years, or perhaps 12 months.

(c)    From Campbelltown they went back to Goulburn briefly and then went to Taree.  

(d)   They returned from Taree to Goulburn in September or October 1998, because AB’s mother was dying.  AB said at one point that they were in Taree for three or four months in 1997, so there may have been an earlier stay in Taree as well as the one that ended because AB’s mother was dying. 

(e)    AB’s mother died shortly after they arrived in Goulburn in September or October 1998, and AB and C then went to Canberra.

1. R gave evidence of his travels with H in search of AB and C:

We went ‑ we went to several places, we went to Sydney, a place called Brungle near Tumut, Goulburn, Taree, and everywhere, we’ve travelled to find him.  He’s just left or nobody knew where he went.

1. The consistency between AB’s account and C’s account suggests that C, despite his youth, has quite a good memory of events from 1996 until he and his father returned to Canberra in late 1998. 

Where in Canberra did AB and C live?

1. AB and C both say that when they returned to Canberra in September or October 1998, they first lived in Bonython with AB’s cousin P and his wife S, who were security guards at Gowrie Court.  C went to school in Bonython until the end of the 1998 school year.

1. Late in December 1998 or early in January 1999 AB and C moved to a flat in Gowrie Court. 

1. AB gave evidence about the time he and C spent in Gowrie Court.  He said that he and C didn’t go to Gowrie Court in mid-December, because they had Christmas at Bonython, and they probably went to Gowrie Court in January.  He went on:

That’s when you bought [C] a bike?‑‑‑No.  I bought [C] a bike at Christmas time.

Yes for Christmas, that’s what I’m saying?‑‑‑Yes.

Yes?‑‑‑Yes.

Yes.  Okay, so you left there and went to Gowrie Court?‑‑‑To Gowrie Court.

Do you remember the approximate date in January you went to Gowrie Court?‑‑‑Well it was early.  It was probably about the 5th or the 6th or something like that.

Because it was before [C’s] birthday wasn’t it?‑‑‑Yes.

So early, maybe the first week in January?‑‑‑No, probably the second or third week in January, probably the second week [in] January.

Okay?‑‑‑Just before his birthday.

Right?‑‑‑I know that because I got a mate to make a didgeridoo for him - - -

Okay?‑‑‑for his birthday.

1. C remembered getting a bike for Christmas, but he did not remember being at the Bonython house for Christmas.  His initial evidence indicated a belief that he and AB went to Gowrie Court before early January 1999, but pressed in cross-examination he said that it could have been after Christmas 1998. 

Where in Gowrie Court?

C’s evidence

1. C said that the things his father did to him happened in a two-bedroom flat, flat 24 of block A in Gowrie Court in McIntyre Street, Narrabundah.  This was the only place in Gowrie Court he remembered living.  He said:

the morning that I left to go to school that my mum picked me up, I left from 24A.  I walked my bike down the stairs, I got on my pushbike and I rode it to school.

1. C’s reference to walking his bike down the stairs suggests it was not a ground floor flat. In describing his mother’s first attempt to reclaim him (at [103] below), he said “I went to go downstairs with my mum”. This is consistent with R’s evidence (at [103] below) that the flat he and H had visited in Gowrie Court was “upstairs, door on the left”.

1. C said that he and his father used to sleep on a mattress in the lounge room, although sometimes C stayed in one of the bedrooms, and there was a spare room.

1. C said he was not sure whose flat they were living in, but it wasn’t his father’s flat.  Only he and his father lived there.  In cross-examination, C did not agree that anyone else lived in the flat with them.  In particular he disputed that his father’s daughter E and her partner CJ also lived there with their two children.  C agreed that E was one of his half-sisters, but said that he never saw her living at Gowrie Court with her partner. 

1. C said he was not aware that AB got his own flat on 14 February 1999, saying he didn’t recall AB even having a flat and that he just knew that “we lived in somebody else’s flat”.  Asked about flat 38, C said that he didn’t ever live there, he only stayed in flat 24A.  He did not recall leaving flat 24A and moving to flat 38.  He thought that a flat on the bottom floor, which counsel seemed to have told him was flat 38, was occupied by another half-sister, M2.

1. DS Chew said that C told him that he stayed at Auntie S’s house for three or four months and then lived in Gowrie Court till Christmas, with his step-dad and step-sister and step-sister’s husband and daughter, in his step-sister’s flat that was a bit crowded.  C’s reference to AB as his step-dad and his reference to his step-sister were explained by his evidence that in 1999 he was calling R his dad, and using R’s surname, and was referring to AB as his step-dad because “I don’t like to think of him as my father”.  C said that he had only reverted to using his original surname when he found he could not get identification documents using R’s surname.  DS Chew said he did not go to the flats at Gowrie Court, and did not speak to the step‑sister or other relatives who lived in Gowrie Court.  

AB’s evidence

1. In evidence in chief, AB said that from P and S’s they moved to Gowrie Court to stay with AB’s daughter E in her two-bedroom flat upstairs on the top floor of a three-storey building.  He thought 24A might have been the number. 

1. At E’s flat, AB said, he slept on the lounge and C slept in the lounge room or in the bedroom.  E had two children but one child used to go to the grandmother’s house in the Causeway, within walking distance from Gowrie Court.  AB said he did not have his own room in E’s flat and that there was no broken chair in any bedroom in E’s flat.  In cross‑examination, AB initially said that flat 38D was his daughter’s flat, but then agreed that 38D was the flat shown in his lease document, and that he “took over” that flat on 14 February 1999.  Before that, he said, he and C were living in a flat in Gowrie Court that was upstairs in a three-storey building.  He did not now know the number of that flat, and could not remember whether the block he first stayed in was A or D, but he was positive that the first flat was on the third floor.  That flat, he said, was E and CJ’s flat, and had two bedrooms. He said that 38D described a flat on the third level of block D.  Flat 28, for example would be on the second level.  There was no spare bedroom in the flat they stayed in, so he and C slept in the lounge room until he went into his own place, just before C went with H after she picked him up from Narrabundah School. 

1. AB said he had applied for his own flat while living at E’s flat.  ACT Housing records were in evidence, showing that on 31 January 1999 AB made an application for government housing for him and his son, indicating that a friend would put them up for a few days, and giving P and S’s address for correspondence.

1. ACT Housing records showed that on 11 February 1999 AB signed a lease for flat 38D in Gowrie Court.  AB initially said that he moved in on 16 February, but then said that it was Monday 14 February 1999 “when I moved in, when I collected the keys”, and that C went with him.  He agreed that official records showed that his tenancy of flat 38D finished on 5 May 1999 and he owed $550 in unpaid rent.

Comparison of evidence

1. C’s evidence that the flat he lived in with his father was 24A is consistent with his own evidence, and R’s evidence, that the flat was an upstairs flat.  C’s certainty that the flat was not AB’s flat is consistent with the ACT Housing evidence that the only flat officially assigned to AB was flat 38D, which he was assigned in mid-February.

1. C’s failure to remember flat 38D (at [85] above) is unsurprising, since AB’s tenancy officially began on 14 February 1999, only two days before C was removed from AB’s care. Given that until then, AB and C had been living in Gowrie Court accommodation provided by relatives, and given AB’s reference to collecting the keys on 14 February and his initial report of moving in on 16 February, it is possible that the process of moving into flat 38D had not in fact been completed before 16 February.

1. C’s evidence at trial about occupying the flat with only his father, and his report to DS Chew about sharing a flat with relatives, are not easy to reconcile, but may have reflected nothing more than the fairly fluid accommodation arrangements already hinted at in AB’s evidence and C’s evidence.  At different points AB said that in the flat they shared with E, he and C slept in the lounge room, or that he slept on the lounge and C slept in the lounge room or one of the bedrooms.  C’s evidence about the flat they lived in was similar, namely that he and his father sometimes shared a mattress in the lounge room and sometimes C slept in one of the bedrooms.

1. AB’s evidence at trial about the flats he occupied was internally inconsistent; at different points in the trial he made the following statements:

(a)AB and C first stayed in a flat on the third floor.

(b)Flat 38D would be a flat on the third level of block D.

(c)Flat 38D was his daughter’s flat.

(d)Flat 38D was the flat assigned to him in February 1999.

(e)24A might have been the number of his daughter E’s flat, upstairs on the top floor of a three storey building.

1. C’s evidence about where he believed he lived may not be completely accurate, given the apparent inconsistency between his comments to DS Chew in 1999 and his evidence at trial.  However, that apparent inconsistency, which may reflect nothing more than a failure of C’s memory as it related to peripheral matters, does not in my view detract in any significant way from the credibility of his evidence generally. 

1. AB’s evidence, on the other hand, operated, whether intentionally or not, to obfuscate the truth about where he and C lived before he was assigned his own flat. 

1. The comparison between the evidence of C and AB is particularly notable. C was giving evidence, 11 years later, of things he experienced at the age of eight, whereas AB was a mature adult both in 1999 and when he gave evidence, and as an adult may be assumed to have had some direct involvement in arranging accommodation for himself and C.  In short, it seemed to me that while C was doing his best to describe where he and AB had lived in Gowrie Court, AB was doing his best to confuse that issue.

Absence of evidence from defence witnesses

1. The prosecutor submitted that it could be inferred from the defence’s failure to call two witnesses said to have lived in the Gowrie Court flat with AB and C that the evidence of those witnesses would not have been reliable.  I reject this submission; whether or not it would have been sustainable in other circumstances, the fact is that the defence subpoenaed the two witnesses and there was in each case another possible explanation for the fact that the witness did not ultimately give evidence.

1. The witness E produced the medical certificate quoted at [21] above. In the case of the witness CJ, who failed to answer his subpoena on two occasions, it seemed that he might have had reasons unconnected with this matter for not wanting to appear at court. Whether or not that was the case, I cannot see that the defence’s failure to provide evidence from a witness who failed, twice, to answer a subpoena can be seen as indicating a weakness in the defence case.

1. Accordingly, I accept the defence submission that no adverse inference can be drawn from the defence’s failure to call the two witnesses.  However, this does not seem to require any finding that the prosecution’s failure to make other enquiries about the living arrangements at Gowrie Court undermines the prosecution case.

Finding

1. I find that AB did not occupy a flat in Gowrie Court as an ACT Housing tenant until 14 February 1999, but that he and C stayed in a flat in Gowrie Court for some weeks before that, beginning in early January 1999 at the latest.

C’s mother takes him back

1. R gave evidence of forming a relationship with H in 1996, having met her first in the 1980s.  She told him she had two children, and that AB had taken them to Goulburn while she was in hospital.  R promised that they would get the children back.  After searching for some time (see [75] above), H and R discovered where AB was living, and shortly before C’s birthday on 16 January 1999 they went to Gowrie Court. 

1. C said that around the time of his birthday in 1999, he was in the flat with AB, and his mother came to the door with R and said that she was taking C for his birthday.  C’s mother told him to pack some of his stuff because he was coming to have his birthday with them.  R gave evidence of going to a flat which he described as being upstairs on the first level, with the door on the left, but said he did not go inside the flat.  R said that C said he wanted to come to their place for the weekend, and AB said that would be all right, but as they were walking down the stairs AB yelled out “run” and C took off and they didn’t find him that night.  C also said that his father told him to run, which he did.  H chased him and AB chased H.  C said that in the stairwell, AB smashed a flagon bottle on the railing and was going to stab H in the face with it, until R arrived.  C said that the police came; when they arrived C hid at someone else’s house until they were all gone and then went back up to the flat, where he found only AB. 

1. R said that after this he and H went to the police and to the Children’s Court, and in due course they got a letter telling them to take C out of school at Narrabundah, after which they went to the school.  R described them showing a teacher the piece of paper they had from the court and being taken to the school principal.  The principal also read the paper, and C was brought to them.  They put C in the car and drove back to R’s place.  R said that C had no belongings with him, because what he had was back at the Gowrie Court flat, and neither C nor H wanted to go near there.

1. H and R took C to live with them in Belconnen.  After that, C said, he went to school in Belconnen, and did not see his father again for years. 

1. The events of 16 February 1999 are described in Education Department records that were in evidence as follows (at several points, the author of this note used the same initial to refer to both AB and C, but the ambiguities have been resolved by reference to the context): 

Tuesday [sic]: 16.2.99

Sequence of events.

-visit by [H] at 9.30 am, mother of [C]:  Diana Roe present, stated that she had been searching for [C] for 3 years, that father ([AB]) had taken him while she was in hospital and that she had been searching for him ever since. 

Said that she had been informed of [C’s] whereabouts by [AB’s] sister, [SL].  She gave me the name and tel. no of a police officer she had been to see – Sgt. Murray Tesk

-rang to confirm above:  told by Sgt. Tesk that she was going to court today for restraining order and that a conference was set for Friday:  said he hadn’t been able to serve appropriate papers to [AB] because address unknown:  asked me to inform him if father appeared.

-[H] informed me that she was going to take [C] to court with her.

-I checked [C’s] school file – no court orders

-Rang Industrial and Legal and was informed that I had no choice but to allow [C’s] mother to take him.

-When confident that [H] was indeed [C’s] mother – recognition, kiss etc) I told [C] that his mum would be taking him out of school:  he was very concerned because he had been told by dad never to go with his mum.  Told [H] that I would need to let father know what had happened.

-rang no. on file:  answered by woman – told her who I was and that I would contact later (“[AB] not home”)

-[C] went with mother and adult male at 10.00 am.

-phone from father asking what was going on:  when told, very distraught and said he was coming down.

-rang Sgt Tesk and asked for his presence.

-father arrived, very emotional, v. demonstrative:  he asked for police presence

-rang Sgt Tesk again – said he would be over immediately

-Sgt Tesk talked to [AB] and adult female about the circumstances, the court proceedings and suggested Aboriginal Legal Aid Service would be appropriate.

Sgt Tesk gave [AB] and partner lift back to Gowrie Court 10.30 am.

[signed] 11.30 am 16.2.99

C’s complaints come to light

1. C said that at some point after he went to live with H and R, R found C lying in the lounge room masturbating.  R gave evidence to the same effect.  C said:

at first he just asked me why I was doing it, and I didn’t say nothing but then he let it go and then he caught me again.

1. The occasion when C was “caught” again was up to a couple of weeks after the first occasion in the lounge room.  R went and got H and they both spoke to C.  They asked C why he was masturbating, and he said “because I used to have to do it when I was out there with me father”.  R said that initially C didn’t say too much at all, but after another two or three occasions they asked him again and:

he just looked away and he looked down and he said “the sort of thing he used to make me do”. 

All right, now that’s, doing the best you can, the words he used?‑‑‑The words he used “The thing he used to make me do” and I didn’t know who he was talking about at the time.  And his mother looked at me and I ‑ you know, she ‑ I think [H] always had suspicions but that as far as she went with me, she didn’t say anything else to me.

All right.  What happened after that, did you explore with him what he mean by that?‑‑‑Well no, that’s ‑ no, like, that’s what he used to make me do and then he sort of went all quiet, he clamped up and I wasn’t going to force him or you know, try and push him to say anything else, so we just left him.

1. Over time C opened up to R about what had happened.  R described how he had built a relationship with C, and C said in evidence:

And then when I come to know him and like, like get ‑ you know, how do I say it like, got fond of him, like you know, I knew that he was like a nice person and that, and I started talking to him.  And then I just started telling him things like he was asking me questions, like “Did that man ever touch you and all this sort of stuff?”  And I started telling him stories and that about what happened.  Not stories.  I started telling him what happened to me.

Now was that, what happened all at the one time or was over a ‑ ‑ ‑?‑‑‑No, like he caught me masturbating once and didn’t think nothing of it, then the second time and he caught me and me mum and that really ‑ I can’t, because I love me mum so much and I didn’t want to be a disappointment like ....(indistinct).... and then so I just, and she didn’t want to know about it and then I just started telling [R] little bits and pieces here and there and he started asking me questions, like you know, did he touch you and that, did he ever do anything to you.  And I told him.

Did you tell him what it was that happened to you, I mean, exactly what it was?‑‑‑Little bits at a time, I didn’t tell him all straight out at one time, you know, because I didn’t really trust like anybody at that time.

1. R described a later conversation about masturbation, in which he had told C that at his age he shouldn’t be doing it.  C had said “but the thing used to make me do it” and had then talked about being made to look at dirty pictures “while [AB] was doing it”, “while [AB] was putting it in”.  R said that he, R, had never told H “the things like about when, you know, he’d read the dirty books and putting things in his back side”.

1. C said that he felt that he could never talk to his mother about these matters because it would have “hurt her too much”, but he talked to R and R talked to H.  At some point R asked if C wanted to talk to the police about it and C agreed.  C spoke to then Constable Chew, and to Dr Packer who did medical examinations on him.  He also spoke to Constable Chew sometime later.

1. C denied that he had been embarrassed when R discovered him masturbating, and said that he had been distressed while giving that evidence in court because he was talking about his mum who’s dead.

Evidence of sexual acts

Evidence of C

1. C gave evidence of several sexual acts involving him and his father.

1. C said that in early 1999, in the Gowrie Court flat they lived in, he and his father were looking at “dirty magazines, like naked women magazines”.  His father asked C to play with his penis, showed him how to do it, and then told C to do it. His father’s penis got hard:

And what happened then?‑‑‑Then he asked me to give him oral sex.

And well, do you remember the words he used?‑‑‑No, he said “suck my dick,” I think.

“Suck my dick”?‑‑‑I’m pretty sure he said “suck my dick,” yes.

Right?‑‑‑Or “doodle” or something like along those lines.

Either dick or doodle?‑‑‑Yes.

...

Yes, and he asked you to suck his dick or doodle, what.  Did you know what he meant by that?‑‑‑Yes, put my mouth on his penis.

Did something happen after that?‑‑‑Yes, he told me to get up and walk ‑ and there used to be a chair in the room and it was broken with the back off it and it used to sit up against the cupboard, and he told me to stand on the chair with my head towards the cupboard and then stuck his fingers in my bum and then it was wet and then ‑ ‑ ‑

...

So did he ask you to hop onto that, or did he tell you, or what happened?‑‑‑He said “Stand on the chair”.

And you did that?‑‑‑Yes.

And did you still have your shorts on at that stage?‑‑‑I had undies but he told me to ‑ I took them off.

So you took them all off, your undies and your shorts?‑‑‑Yes.

And which way were you facing?‑‑‑With my head towards the cupboard.

So your back was towards your father?‑‑‑Yes.

And what did he do then?‑‑‑Then he stuck his fingers in my bum and then ‑ ‑ ‑

Yes, all right, now stop there.  I need to ask you about that.  How did that feel?‑‑‑It hurt.

Did you say something to your father about that?‑‑‑I couldn’t really say anything.

Right.  And do you remember him saying anything to you?‑‑‑No.

And then what happened?‑‑‑And then he put his penis in my bottom, my arse, whatever you call it.

You say that he put his fingers in your bottom, how do you know it was his fingers that he put in your bottom?‑‑‑Because I could sort of see.  Like I turned around.

Yes?‑‑‑And then I looked back towards the cupboard and then his fingers come out and then he put his penis in there.

How did you know it was his penis?‑‑‑Because his penis is a lot bigger than his fingers.

Yes?‑‑‑And it couldn’t have been nothing else.

All right, now how did that make you feel when that happened?‑‑‑Really hurting, really excruciating pain.

Did you say anything or do anything?‑‑‑No, I just said it hurt.

And did he respond to that, did he say anything to that?‑‑‑He just told me to shut up.

And how long did that go on for?‑‑‑About 15 minutes, half an hour.  About half an hour.

1. C was “pretty sure” that his father did not ejaculate, although at the time he did not know what ejaculation was.  After a while his father stopped and left the room.  C went to the toilet because he was bleeding from his behind.  He used toilet paper to clean himself.  His bottom was sore.  At the time, he didn’t know what was going on.

1. C described another incident also in Gowrie Court.  He had come home late and was hit by AB on his back, head and shoulders.  Then he had to go to the room he normally slept in, and was asked by AB to play with him.   

What do you mean by “He asked me to play with him.”?‑‑‑Like to play with his penis.

And whereabouts in the room were you, and he?‑‑‑He was laying on the bed and I was sort of laying next to him.

Right, and did he have any clothes on?‑‑‑Yes, he had no shirt on but he had shorts and underpants on.

What did he do with his shorts and underpants when he asked you to play with him?‑‑‑Pulled his shorts down.

Yes?‑‑‑And then his penis was out and then I had to ‑ and then I ‑ because I already knew from before what to do, so I just started playing with his penis and ‑ ‑ ‑

How did you start playing with his penis?‑‑‑Like grabbed it and started masturbating it.

And what happened when you did that?‑‑‑It got hard.

Yes.  And did anything else happen after that?‑‑‑Yes.

What happened after that?‑‑‑I got told to go to the chair.

Now that’s the same chair without the back that you spoke about before?‑‑‑Yes.

And do you remember what clothes you had on that day?‑‑‑I just had a pair of undies on.

And what happened when you went to the chair?‑‑‑He come up behind me and put his hands on my shoulders and then ‑ I’m not sure if he put his fingers in my bum or put his penis in, I can’t remember.

So he put his both hands on your shoulders?‑‑‑Yes, for a moment and then one of them was on my side and one was on my shoulder.

Right.  And he put, you think, his penis in your bottom?‑‑‑Yes.

And what did he do?‑‑‑Started like, I don’t know how to explain it, started having sex with me.

Well was he standing still or was he moving?‑‑‑He was moving.

And is that the same as he did before the other time you mentioned?‑‑‑Yes.

And approximately how long do you think that went on for?‑‑‑Probably about 20 minutes, half an hour.

1. He could not recall if his father ejaculated that time.  After his father had finished, C went to the toilet and wiped his bottom.  There was a bit of blood, but not as much as before, and the experience had not hurt “as much as the first couple of times”.

1. C described one other similar incident of anal sex that he said took place at his nan’s house in Goulburn; he said it still hurt, but not as much.  He said that this incident was interrupted by someone else coming back to the house.  He said the Goulburn incident had happened before he and AB moved to Canberra.

1. C said he thought that while he and his father were in Taree he “had had to do stuff once ... like masturbating him, oral sex and that’s it”.

1. Apart from his evidence of specific incidents, C said there had been incidents of anal sex on four or five occasions in Gowrie Court.  He thought the first time was December 1998 or January 1999.  C said that the occasions of anal sex in Gowrie Court had happened before his birthday, and that nothing happened to him after his mum showed up.

Evidence of DS Chew

1. DS Chew, who in 1999 was an investigator attached to the Sexual Assault and Child Abuse Team in the AFP, gave evidence of dealing with C’s complaints. 

1. On 30 May 1999 he spoke to H about C’s allegations, and arranged for C to be examined by Dr Packer on 31 May.  On 1 June he conducted a taped record of conversation with C, who made allegations concerning sexual acts between him and his father.  On 8 June he received Dr Packer’s written report, and on 22 June 1999 he took statements from H and R. 

1. DS Chew did not recite the detail of C’s complaints to him, but he said:

(a)that C “made allegations concerning sexual acts as between him and his father”;

(b)that C “spoke about penises, acts that occurred to him, which had significant clarity about those statements”; and

(c)that C’s demeanour when DS Chew spoke to him “was quite understanding of what had occurred.  He was unable to provide detailed specifics of when and where the offences allegedly occurred but he seemed to understand what had occurred to him ...”.  

1. DS Chew recalled a mention of pornographic magazines at some stage, but could not recall when or how that came out, and whether it came from C or someone else.  DS Chew agreed that when talking to R he would have “zealously written down” anything relevant to his inquiries, but the absence of any reference to pornography in any of the statements did not shake his belief that pornography had been mentioned.  He did not recall any mention of oral sex by C.  

Evidence of Dr Packer

1. Dr Packer reported on the examination she conducted on 31 May 1999.  C had come to see her with H and R. H first gave Dr Packer a family history while C and R waited outside.

1. Dr Packer said that C gave “a very bleak account of a very unhappy time living with his father”, and that H told Dr Packer that C had to be treated for scabies when he first came into her care.

1. C told Dr Packer that AB “hit me real hard with a stick” and used to put his “private part up my bottom”.  C said this happened a lot of times, and he said he would also “have to touch [AB’s] private parts for a long time pulling it up and down”.  He did not mention ejaculation.  C said this had happened on many occasions, naming his nan’s house at Goulburn and Gowrie Court in Narrabundah.  Dr Packer was asked to elaborate:

Did he say anything else?---No, he didn’t make any mention of ejaculation.  He did - I then asked him more about the touching and the things that he next said were of more medical significance.  Well he firstly said that this had happened on many occasions and he gave two locations in his nan’s house at Goulburn and in - where he lived with his father in Gowrie Court in Narrabundah.  And he told me that it used to hurt when his father had his penis in his bottom and it sometimes hurt afterwards.  And sometimes he noted blood on the paper at the toilet.  And he told me of one occasion when he thought he was “having runny poo” but he - and again in his words “I looked in the toilet and saw it was blood”.

Again, those words, “thought it was runny poo” are they his words?‑‑‑Yes, they’re his words.

Thank you?---And he also told me that after the anal intercourse his bottom would sting when he had a bath or a shower.  And he also told me at times he’d have blood on his underpants.  He said his father never said anything about the blood on the underpants.  His father sometimes did the washing ... and his father had told him to keep these things a secret.

1. Dr Packer said that the physical examination showed C to be a normal young boy apart from some tooth decay and aspects of his anogenital region.  Her evidence about that was as follows:

He was uncircumcised and his penis and the testes appeared normal and there was no evidence of any hernias.  I examined his anus using a video colposcope.  My comment at the time was that he had quite a deeply funnelled anus but the anal margin appeared normal and he had some anal soiling with faeces.  And I noticed two very small erythematous lesions on the right side of the anus but otherwise the appearances were within normal limits. 

Just in relation to that funnelling, is that something that’s unusual?---This is where the length of time between this examination and coming to court now is probably of some significance.  At the time the report was done, we were really undecided about that which was one of the reasons I recorded it.  Now we place less emphasis on it than we did at that time.  But I have reviewed the video and I’m quite comfortable with the findings I made then.

So there is nothing unusual about the funnelling?---Probably not.

In relation to the two small lesions is there anything unusual about those?‑‑‑On - it’s - they’re not uncommon and on reviewing the video I think they were possibly more likely to be related to his fairly poor anal hygiene.  Again, they’re not diagnostic of anything, you couldn’t say they were or were not a consequence of the abuse.

Following your examination you’ve - can you describe your findings then?‑‑‑Basically an eight year old boy who gave a spontaneous and clear disclosure of repeated episodes of anal intercourse and he identified that this was with his father whilst living with him.  Between May 1996 and when he returned to his mother’s care in February 1999 and the incidents he described to me were having his father’s penis in his bottom and having to masturbate his father.  He described the penis in his bottom as being painful and he had noted blood subsequent to these episodes on several occasions.

Sexual act alleged against Justin

1. C agreed that in his second police interview, in 2000, he had named another person who had also had anal sex with him, whom he believed was called Justin.  There had been one incident with Justin, which took place during the time C lived at Gowrie Court.  Justin had pulled C’s pants down and put his penis in C’s behind.  Pressed about how long this had continued, C gave this evidence:

You don’t recall?‑‑‑No, I don’t know how long, probably 10 minutes, 15 minutes, I’m not sure.  I don’t count time when I’m getting raped up the arse, mate.

1. C said that this had happened during the daytime and must have been on a weekend.  C believes he told R about this incident as well.  C did not mention the person referred to as Justin to Dr Packer, and R did not recall having heard Justin mentioned either.

1. C said that the incident with Justin happened probably before Christmas, behind the bushes and behind a brick wall at Gowrie Court.  It happened in between C’s experiences with his father—it was painful, but not excruciatingly painful because he was used to that sort of thing happening to him.

AB’s knowledge of his relationship with C

1. As noted at [67] above, AB is not only identified on C’s birth certificate as C’s father but also as one of the “informants” about the birth, which I take to indicate that AB was involved in identifying himself as C’s father.

1. There is also no evidence to rebut the presumption set out in s 92L(6) of the Crimes Act (at Appendix A) about an accused’s knowledge of his relationship to the alleged victim of an incest offence under s 92L.

Evidence of beatings

1. C said that during the time he was with his father, his father sometimes hit him with a stick, which he described as follows:

it was green and you get it off the tree and peel it back .... [f]or it to dry, and it gets really hard.  It was about a metre long.

1. The stick, C said, was kept mostly under the bed or beside the bed, and he would be hit if he didn’t come home at a certain time or didn’t do something his father asked him to do, or sometimes for nothing.  At one point C described the beatings as floggings, giving this evidence:

What do you mean by a flogging?‑‑‑Like with a stick, hit me, slap me, sometimes hit me with the sticks.  Most of the time he’d use sticks on me for when I did stuff wrong like backchat or I wasn’t home on the right time or I didn’t do what he asked me to do, like clean up or something like that.

1. C also said that he had bruises all over his body although not on his face.

1. C could remember being hit on one occasion while living in the flat in Gowrie Court because he came home late.  His father was drunk and hit him “on me back and on me head, around the shoulders and near me head”.  C said that this beating had preceded one of the occasions of anal sex (see [116]-[117] above).

1. R reported C telling him about an occasion on which C had cooked the last egg in the house and eaten it and AB had beaten C with a stick when AB came home.  In re‑examination R said that his police statement did not mention the egg incident but did refer to C’s telling him about beatings he got from AB.

1. C said that the period when the beatings had occurred included the time he was at Narrabundah Primary School. School records relating to C’s time at Narrabundah Primary School, which ran from 2 February 1999 until 16 February that year (after the period specified in the indictment), were in evidence. As well as the file note quoted at [106] above, the records show one absence during the two weeks that C was enrolled at Narrabundah Primary School, and a note written by the Deputy Principal, dated 16 February 1999 (the day C’s mother took him away from the school) as follows:

To Whom It May Concern

[C] (D.O.B. 16.1.91) was enrolled at Narrabundah Primary School by his father, [AB] on the 2^nd of February, 1999.  He had previously been enrolled at Bonython Primary School.  On enrolment, [AB] approached the Principal of the school to say that he was the sole guardian.  The Principal informed [AB] that the school could only recognise this fact with appropriate documentation and suggested that, if it existed, this be presented to the school to put on file.

[AB] introduced himself to [C’s] class teacher and was seen to be very encouraging with [C], reminding him that his teacher was in charge and to be cooperative.

[C’s] attendance rate has been highly satisfactory, with one day of absence since his enrolment.  In the short time that he has been here, [C] has appeared to be very happy at school and has fitted into the class routine very well.

[signed]
Deputy Principal
16.2.99

1. The school records contained no reference to bruises or other signs of beatings.  Defence counsel relied on these notes to suggest that C “did not fear his father”.  I am not convinced that the Deputy Principal’s note lends any particular support to the claim that C did not fear his father, although it certainly does not support any claim that he did.  However, the question whether C feared his father does not seem to be in issue, given that C did not in his evidence claim to be in fear of his father; on the contrary he gave the following evidence about his relationship with his father while he was living with him:

I loved him, he took me everywhere, did stuff with me, like took me places, did everything, like, I loved him, like he was my world and then to do them sort of things, like I didn’t know it was wrong back then, I was only young, I didn’t know any difference.

1. I note also that C’s evidence of beatings (at [134] and [135] above) did not suggest that he saw the beatings as anything unusual.

1. AB categorically denied having beaten C at all:

Did you in [E’s] flat keep a stick, about a metre‑long stick?---Never.

Did you at [E’s] flat regularly hit your son with that stick?---I’ve never hit my son in his life.

...

Did you hit your son so that he’d be bruised from being hit by you?---No.

Assessment of the evidence

The complainant

1. C is an intelligent young man, who gave his evidence generally in a matter-of-fact way and with considerable composure, except in two circumstances. 

1. First, C was obviously distressed when speaking about his late mother. 

1. Secondly, C lost some of his composure when he was accused of lying.  He reacted angrily to defence counsel’s suggestion that his story was untrue, saying:

I’m not lying, mate.  I wouldn’t come to court and do all this and that if my dad didn’t do that to me.  Why would I be coming here making ‑ if I ‑ if I ‑ if nothing actually happened to me?  Do you think I like sitting here telling you guys—about five different people, a judge, you, him, him, her—do you think I like talking about that in front of you.  Do you think I like coming to court and making up all these lies?  You think, yes, if I lied about it back then do you think I’d still be coming to go through with it today?

1. Despite his anger, C was not shaken in cross-examination about any aspect of his evidence.  C’s evidence also showed a mature ability to distinguish between what he had known or understood as a seven-year-old and what he now, as an adult, knew or understood.

Specific challenges to complainant’s credibility

1. As well as explicitly accusing him of lying, the defence challenged C’s credibility in various other ways. 

Relevance of custody dispute?

1. Defence counsel submitted that C’s allegations were made “against the backdrop of animosity between the parents”.  C and R were cross‑examined about whether C’s complaint had initially been made in the interests of strengthening H’s position in a dispute with AB over the custody of C and his sister M1. 

1. AB said that he never heard from H after she took C to live with her, but that in 1999:

[H] used to come across to Goulburn.  [H and R] used to meet at Collector, [M1] used to come across, they used to do every second weekend.

1. R gave evidence that there were no Family Court proceedings between H and AB after C came to live with them, but that when they went to the Children’s Court H had obtained full custody of C, and there was “a thing where [AB] couldn’t go near either him or [M1] until they were 18 years old”.

1. C conceded that when he went to live with his mother and R, they bought him lots of things such as new clothes and computer games, but that it didn’t bother him whether he got toys or not, he was just happy to be with his mum, noting “They’re just objects”.  C agreed that when interviewed by Constable Chew as he then was, he had said that he liked living with his mother and R because they bought him “everything” and that his sister would “be spoilt like me” when she came to live with them.

1. C said that until his mother came to Gowrie Court shortly before his birthday, he had not known that she had been looking for him during the time he was with his father.  He had not initially wanted to go with her, but when she had explained to him what was going on and why she had come to get him, he wanted to be with his mum.  C was asked whether he had known that it would be easier for his mother to have him and his sister if they could get AB in some sort of trouble.  He pointed out that he was already living with his mother and that his sister was staying with them for weekend visits.  He also recalled that “they went for a custody battle and me mum ended up with custody of [M1]”.   He denied knowing the law when he was eight years old, and said:

I didn’t know that if [AB] got into in trouble with the police that it would be easier for me mum to get custody of [M1].   

1. C said that he did understand this now that he was a teenager.

1. There is evidence before me that there was some kind of custody dispute between AB and H.  However, that evidence suggests that the dispute was resolved separately from C’s complaint against AB, and possibly even before his complaints were made.  The absence of any reference to a custody dispute by either DS Chew or Dr Packer also suggests at least that the making of the formal complaints did not play any role in the resolution of the custody dispute.

1. There was evidence of animosity to H by AB, as indicated in his several explanations for taking C and leaving Canberra after H’s accident (at [69] and [70] above), and in his evidence that the accident had occurred after H (who was then living with him as his partner) had “stolen” his car to go and get some grog.  There was no evidence of animosity towards AB on H’s part, and there was nothing relevant to such a possibility in R’s evidence.

Relevance of compensation claim?

1. C was asked whether his complaint had been made with a view to getting financial compensation.

1. In cross‑examination C denied having told his sister M1 that he would get some money, or some compensation, out of making these allegations.  C confirmed that he did not see M1 much, and said that he had never spoken to her about these matters, saying:

[M1’s] the one who apparently makes statements saying that [AB] assaulted her, indecently did this and that and this and that to her years ago.  When my mum was alive she went in and made a statement and now she’s there on his side letting him in the house and that.

1. There is no evidence before me either that C has any current thought of compensation or that he had any concept of that possibility at the age of eight when his complaint was first made.

Failure to complain of oral sex

1. C’s credibility was challenged on the basis that at trial he embellished his evidence by mentioning oral sex, although this had not been mentioned in his two police interviews.

1. There is no mention of oral sex in the case statement that was relied on as the prosecutor’s opening. The first mention of oral sex apparently came in C’s evidence at trial, quoted at [114] above.

1. That is, C said, in describing events leading up to an incident of anal sex, that his father had asked him for oral sex.  C was not asked, and he did not volunteer, that oral sex had in fact taken place.  

1. Defence counsel, however, put the matter of oral sex to C rather differently: 

Now you told us today that on the first occasion at Gowrie Court your father asked you to start playing with his penis and then asked you to give him oral sex.  Do you recall saying that to us?‑‑‑Yes, this morning, yes.

And you said you did give him oral sex, or what you now understand to be oral sex?‑‑‑Yes.

1. In fact, as noted, C did not say that oral sex had taken place, only that it had been requested.

1. Pressed in cross‑examination, C gave the following response: 

But did you tell that to Constable Chew when you were first interviewed in June 1999?‑‑‑I don’t recall.

Have you seen a copy of that transcript of that interview, police interview?‑‑‑Yes, but I didn’t ‑ I didn’t read the whole thing.

Why not?‑‑‑Because I don’t like reading what happened to me, like I don’t like reading about them sort of things.

So what part did you read?‑‑‑Just like when we was at the flat and what happened and ‑ ‑ ‑

And when you read what happened at the flat, is there any mention of you telling the police that your father made you give him orals sex?‑‑‑I think ‑I’m pretty sure.  I don’t ‑ I can’t remember, I can’t remember.

What did you read?‑‑‑I can’t say that I remember when I don’t remember.

Well, let me ask you this, did you see at that interview any mention by you that your father made you give him oral sex?‑‑‑Not that I recall.

Can I suggest to you there’s nothing in that interview about your claim that your father made you give him oral sex?‑‑‑Yes.

Do you agree, sorry?‑‑‑Sorry, you said that ‑ say that again sorry?

All right, I’ll put it another way.  I suggest to you you did not tell Constable Chew that you had to give your father oral sex.  Do you agree?‑‑‑I might not have told him, no.

And the reason I suggest to you that you might not have told him that is because there was no oral sex.  Is that correct?‑‑‑Maybe not on that occasion.  It happened to me more than once, maybe not on that occasion.  He didn’t make me give him oral sex every time.

Well, is there any mention by you to Constable Chew on 1 June 1999 that your father made you place his penis in your mouth?‑‑‑No.

And I suggest to you there isn’t any reference ‑ sorry I suggest to you that’s because it never happened?‑‑‑On that occasion, or at all?

At all?‑‑‑Well how would you know, you weren’t there?  Only I was there, of course he’s going to say it never happened.  I know what you’re saying, but sir, that I didn’t say it in the transcript.  Is that what you’re trying to say?

Yes, yes.  Did you tell the police?‑‑‑Yes, yes.  I might not have said it in that transcript, but it did happen.

Not what you might not have said to the police, I’m saying to you, you did not tell the police that your father made you give him oral sex?‑‑‑Yes.

You agree with that?‑‑‑Yes.

And indeed, in the second interview a year later, you did not tell the police that your father made you give him oral sex?‑‑‑Yes.

Do you agree with that?‑‑‑Yes, yes.

And what, 10 years later, 11 years later, you suddenly have this recall of oral sex?‑‑‑Yes, because I didn’t say anything in the interview doesn’t mean that it didn’t happen, sir.  Do you know how hard it is to talk about that sort of stuff?  I didn’t want to go into every little grimy little detail.

1. C’s response makes sense as the response of a witness who, while not convinced that he had earlier asserted that oral sex had taken place, trusted counsel to have reported his evidence accurately, and then tried to make sense of something that did not exactly fit his recollections. 

1. As to the substance of C’s evidence, it left me with the impression that the specific request for oral sex he described had been overtaken by his father’s instructions to stand on the chair.  If that is a correct interpretation, it is not particularly surprising that oral sex was not mentioned in C’s complaints in 1999.  Indeed it may be that the trial was the first occasion when C had been asked to describe the unfolding of a particular incident step by step, rather than simply describing the various things that were done to him.  If in fact C was attempting to improve his evidence by adding in a reference to oral sex, it is surprising that he did not at that point go beyond reporting the request and report also that he had in fact had to perform oral sex on his father.  Nor is it clear to me that the reference to oral sex in fact “improves” C’s evidence, at least to the extent that it does not seem to make the evidence of anal sex any more credible than it would otherwise be.  It is possible that the evidence of a request for oral sex could have an inappropriately prejudicial effect, but this is not the basis on which defence submissions were made and in any case that issue should be of limited significance in a judge-alone trial. 

1. Counsel’s cross‑examination of C about his evidence relating to oral sex at best was based on one possible interpretation of ambiguous evidence‑in‑chief and at worst was misleading in (no doubt innocently) misrepresenting earlier evidence before any transcript was available.  C’s reference in evidence to a request for oral sex, and his response to cross‑examination about that evidence, do not in my view affect the credibility of his evidence more generally.

Absence of prior references to pornography

1. At trial C had mentioned looking at “dirty magazines, like naked women magazines” with his father before one of the incidents of anal sex (at [114] above). Defence counsel noted the apparent absence of any reference to pornographic magazines in the earlier reports of C’s complaint. The claimed absence seemed to be supported by DS Chew’s concession that although he could remember someone (either C or one of the witnesses) mentioning pornographic magazines, he had no recollection of where that evidence came from. DS Chew’s concession, made in the context of his evidence that he had reviewed the witness statements and the taped records of conversation, implied that DS Chew had found no mention of the pornographic magazines in any of that material.

1. R conceded that there was nothing in his police statement about C being shown “dirty pictures” by AB, but said that he had told the police about C’s claim and he could not understand why it was not mentioned in his statement.

1. I see no reason to doubt the evidence of DS Chew and R, both of whom appeared genuinely mystified about the absence of any earlier record of references to pornographic magazines, that there had been a reference to pornographic magazines in C’s original complaints.

Doubts arising from accommodation arrangements in Gowrie Court

1. In written submissions defence counsel pointed to C’s original description of where he lived in Gowrie Court, specifically, in a flat occupied not only by him and AB but also by one of AB’s daughters as well as her husband and daughter (at [86] above), and submitted that C’s description of where they lived:

would lead to a reasonable doubt on the complainant’s assertion that the accused committed sexual acts upon him and on occasions beat him leaving visible bruises while there were others living in the flat. 

1. I am not aware of any basis for the proposition that sexual abuse of children only takes place when the child and the perpetrator live together alone.  Nor can I see any basis for assuming that a person in AB’s position, being the patriarch of a large family, would have been challenged by any of his older children over how he chose to discipline one of their younger siblings. 

Comparison of C’s evidence of different incidents of anal sex

1. Defence counsel submitted that C’s evidence of the duration of the incidents of anal penetration alleged against AB compared with his relative vagueness about the duration of the alleged incident with Justin, and the police failure to pursue the allegation about Justin, made it reasonable to conclude that the incident was “made up”, and that this in turn raised questions about whether C’s evidence was “honest and accurate”.

1. I cannot see that C’s difficulties in estimating times have any significance.  All C’s estimates for the duration of incidents were vague—the only real difference was that C initially said he didn’t recall how long the Justin incident lasted.  For the first incident with AB, C gave this evidence:

And how long did that go on for?‑‑‑About 15 minutes, half an hour.  About half an hour.

1. For the second incident with AB, C said:

And approximately how long do you think that went on for?‑‑‑Probably about 20 minutes, half an hour.

1. For the incident with Justin, C’s evidence was:

And how long did he continue that activity with you?‑‑‑I can’t recall.

You don’t recall?‑‑‑No, I don’t know how long, probably 10 minutes, 15 minutes, I’m not sure.  I don’t count time when I’m getting raped up the arse, mate.

1. C’s initial inability to specify a time for the incident with Justin, and his subsequent response, do not seem to me a sufficient basis for suggesting that C had made up his story about Justin, let alone that all his evidence about his father is suspect.  Estimating the duration of any event, after the event, is often difficult without any external reference points, and is probably even more difficult for a young child than for an adult.  It may well be also that estimating the duration of any intensely physical event such as sexual intercourse, and especially any physically painful event, is particularly difficult. 

1. Furthermore, none of C’s time estimates, either in relation to his father’s alleged behaviour or in relation to Justin, seemed likely to be particularly accurate; however, for the reasons I have noted, there is no reason why they should be expected to be accurate, and any such inaccuracy does not in my view detract from C’s credibility more generally.   

1. Nor can I see that the police response to the “Justin” allegation, as such, is relevant to its truth; there may be circumstances in which the reasons for a particular police response have some relevance to the truth of a complaint, but in this case no such reasons were explored.

Analysis of C’s evidence

1. C’s descriptions of the incidents of anal sex were consistent with the contents of his original complaints, as described by R (at [108]-[110] above), DS Chew (at [122]-[123]) and Dr Packer (at [127]-[128]).

1. As well, the credibility of the original complaints was supported by R’s description of the circumstances in which the complaints came to be made, and by Dr Packer’s assessment of C’s description of events as “age-appropriate”.  I take Dr Packer’s description to signify, among other things, that C’s complaints did not give the impression of having been rehearsed at the instigation of an adult.

1. As to C’s demeanour, Dr Packer said:

Particularly given the circumstances where he’d only been with - back with his mother for about four months.  He was very trusting and obviously gave the impression of feeling very supported by the adults with him.

... He was quite willing to speak.  He did look to his mother and her partner for reassurance of their physical presence.  It’s difficult in a situation like this when the child has only been back with his mother for a matter of months.  Many eight year old children are the most reluctant to speak.  He was a child who was more independent, was obviously helped by having adults there with him but was quite spontaneous in what he said.  Did not need as much reassurance as most eight year old children would need.

Are you able to say anything about his use of language?‑‑‑His use of language was very age appropriate, in fact it was quite good for his age.

In relation to your response about age appropriate language are you able to expand what you mean by that some more, doctor?‑‑‑You would expect a child of eight to really give the sorts of descriptions he gave.  He spoke of things he didn’t really understand from his observations and conclusions from experiencing these things and seeing these things, yes.  In particular talking of things like the parts of his body touched and observing the blood and really being a little confused as to why there should be blood.  All of which is quite appropriate for a child of this age.

1. One peculiarity in C’s evidence must be noted.  Some of C’s evidence could suggest that the incident he described as taking place first in Gowrie Court was in fact the first such incident ever; for instance, he describes that Gowrie Court incident following this exchange with the prosecutor:

Now you’ve made some allegations that your father did some things to you?‑‑‑Yes.

Do you remember when it was, and I’ll come to what the things are in a moment, but do you remember when it was the things started?‑‑‑Yes in 1999.

1999?‑‑‑Yes.

1. If that is the import of his evidence, it is inconsistent with some other evidence, in particular his evidence of a similar incident at his nan’s house in Goulburn, which he said happened before he and AB had moved to Canberra (at [118] above). In fact C appeared to recognise the confusion about his evidence:

That was before you moved to Canberra?‑‑‑No, it was ‑ yes, sorry, yes, that was.  Oh, I can’t recall.  I’m not sure because we were moving around a lot.  Sometimes we’d be at Gowrie Court and then for a bit we’d stay there and then we’d leave for a little bit and go over here and then come back.

1. I do not regard this possible inconsistency as significant.  Given the form of the indictment and the fact that the trial was being conducted in an ACT court, C was presumably well aware that the trial was focussed on what happened to him in Canberra, not in Goulburn.  It is accordingly not surprising that when the prosecutor asked him about the allegations he had made and about “when it was the things started” he responded with evidence about the first incident in Canberra.  C’s comment that the incident in Goulburn “still hurt but not as much” may reflect either that the incident did happen after one or both of the Gowrie Court incidents or that the interruption meant that the anal penetration achieved had not been sufficient to cause serious discomfort.  The third possibility is that C is simply confused about the exact sequence of multiple occasions of anal intercourse—this does not in my view detract from the strength of C’s evidence about the two incidents in Gowrie Court. 

Conclusions about C’s credibility

1. I regard C as a witness of truth, while noting that his age at the time of the alleged offences and the time that has passed since then may have affected the reliability of peripheral aspects of his evidence.

The accused

AB’s evidence

1. Most of AB’s evidence has been considered in relation to specific issues dealt with above; it is however necessary to set out his evidence about the acts alleged against him by his son.

1. In his evidence-in-chief AB said:

Just excuse me, your Honour.  [AB], did you – whilst living at [E’s] flat – force your son to – do you understand masturbate - - - ?---Yes.

- - - masturbate your penis?---Never.

Or force him to perform oral sex on you?---No.

Or place your penis in his anus?---No.

Did you ever do any of those things to him?---Nothing, nothing like that nothing like that.

At Goulburn did you force him to do sexual acts on you?---No, no.

Or at Taree?---Never.

Did you hit your son so that he’d be bruised from being hit by you?---No.

1. In cross-examination AB gave the same denials:

I want to suggest this to you, [AB], that after 1996 when [H] had her accident - - - ?---Yes.

- - - and you took [C] - - - ?---Yes.

- - - you deliberately avoided contact so that [H] wouldn’t find you, didn’t you?---No.

And you kept that up for some time, didn’t you?---No.

I suggest this to you, [AB], that when you were in Goulburn- - - ?---Yes.

- - - not necessarily during that five or six days you spoke about, but when you were in Goulburn before you sexually - - - ?---No, no.

- - - interfered with your son - - - ?---No, I never I never touch my son in my life.  No, a simple no.

- - - and you made him masturbate you?---No.

And you then placed your penis into his bottom, didn’t you?---No.

And that continued, didn’t it - - - ?---It did not.

- - - when you came to Canberra?---No, it never.

Whilst you were in Gowrie Court?---No.

You made him masturbate your penis until it was erect?---No.

And he stood on a small wooden chair without a back - - - ?---No.

- - - and you placed your penis in his anus?---No.

I suggest to you, [AB], you’re not being honest today are you?---I am being honest.

And are you suggesting that you’re always honest?---Always, always.

Even when you obtain social security benefits while you’re cherry picking?---Yes.

Assessment of AB’s evidence

1. In giving evidence, AB was polite but assertive.  He appeared to have good recall of many of the facts about which he gave evidence, but also appeared to have serious difficulties in dealing with events in any kind of chronological order.  I could not initially be sure whether this reflected a difficulty in thinking in chronological terms, confusion caused by counsel’s initial failures to be very precise about the specific events being asked about (a particular problem since events of various kinds were, or seemed to have been, repeated on different occasions), or a deliberate disinclination to be pinned down to anything that might turn out to be important in the trial; for reasons set out below I am inclined towards the latter explanation. 

1. Apart from questions of chronology, there were other notable inconsistencies in AB’s evidence, most of them relating to issues of no particular significance but all of them combining to raise questions about the overall reliability of his evidence.  I formed the impressions that first, AB did not give precise evidence and secondly, he took advantage of his imprecision, and possibly even exaggerated it, to suit his position.  A dramatic example of this approach was his hasty adjustment of his recollection of when he and C moved to Gowrie Court:

Do you remember the approximate date in January you went to Gowrie Court?‑‑‑Well it was early.  It was probably about the 5th or the 6th or something like that.

Because it was before [C’s] birthday wasn’t it?‑‑‑Yes.

So early, maybe the first week in January?‑‑‑No, probably the second or third week in January, probably the second week [in] January.

Okay?‑‑‑Just before his birthday.

1. This struck me as a deliberate attempt to rescue an initially honest answer (“Well it was early”) and replace it with an answer that put the move “[j]ust before [C’s]  birthday”, which was the time of H’s initial attempt to reclaim C and the point that, according to C’s evidence, marked the end of AB’s sexual abuse of him.

1. It is possible that AB’s imprecision was partly or even largely a reflection of a poor memory, but unlike many people with poor memories, his difficulty in giving a consistent account of events did not seem to cause him any embarrassment, and he gave no indication that he recognised the problems with his evidence and was struggling for accuracy.  In this respect his evidence contrasted with that of his son C, who frequently conceded that given his age at the time of these events and the passage of time since the events, he could not be sure about particular details. 

1. There were many other significant inconsistencies in AB’s evidence.  As noted, some of them involved dates, and it may be unfair to assume that this reflects anything more than general confusion about relevant dates (rather than confusion, or dishonesty, about the sequence of events, as already discussed).  However, one example of this confusion must be mentioned.  AB was cross‑examined about why he had taken C and left Canberra after H’s accident:

Yes.  And what did you say to her?‑‑‑I said to her, well, we cannot stay here.  We are going over to my mum’s where we’re welcome.  That’s the words I said.  I said we cannot stay here because we’re not allowed in this place, you know.  It was just for her and for her only.

From that day you haven’t spoken to her?‑‑‑I have never spoken to her ever since.

See what I want to suggest to you [AB] is that is a lie isn’t it?‑‑‑Why is that?

Well, you’re asking her Honour to believe that – you had no reason to leave your partner with your son did you?‑‑‑Yes.

What was the reason?‑‑‑Because she took my son away from me, away from the school and I did not want nothing else to do with any of them because they broke my heart by taking my son.  My son meant everything to me.

When did she take your son?‑‑‑In 1990 – whenever it was she took him.

Well I’m talking about in 1996?‑‑‑Well she took him in 1996 didn’t she?  1998.

HER HONOUR:  Mr Lundy, it might be better if you were to refer

to  - - -?‑‑‑If you explain it to me.

Yes?‑‑‑Yes.  It’s getting me confused.

I think we’re getting a little bit confused?‑‑‑I am.

Okay.  The evidence so far is, is that [H] came to the Narrabundah school in 1999 - - -?‑‑‑Yes.

- - - and took [C] away?‑‑‑Yes.

Okay, do you understand that?‑‑‑Yes.  That was in February ‘99.

February 1999.  I’m asking you questions now about 1996?‑‑‑Yes.

After the accident?‑‑‑Accident, yes.

When you took [C] and left?‑‑‑Yes.

Okay?‑‑‑Yes.

Now, I was asking you questions about that and why you left with [C] then?‑‑‑We had nowhere to live.

Right.  And so I’m saying to you what is it you said to [H] when you left with [C]?‑‑‑I said we’re going home to mum’s.  When you are better you can come and get the kids.  That’s the words I said to them.

1. AB’s confusion about specific dates (for instance his suggestion that H took C away in 1996) may reasonably be ignored.  AB’s attempt to suggest that he left Canberra with C after H had her accident because H had previously taken his son away from him by taking him away from school is untrue by reference to all other evidence given (including his own).  There is no doubt that H took C away (by removing him from his school) after AB took C away, not before.  More significantly, AB’s reference to not wanting anything else to do with any of them “because they broke my heart by taking my son.  My son meant everything to me”, is a manipulative gloss on that untruth that cannot in my view be dismissed as merely reflecting the confusion of a person with an apparently poor memory. 

Challenge to AB’s credibility

1. As indicated at [189] above, AB’s credibility was challenged by the prosecutor on the ground that AB admitted in evidence to having inappropriately obtained Centrelink payments during periods of some weeks while he was also doing casual fruit-picking work and, in the case of what was referred to as a “sole parent pension”, while H was living with him.

1. I reject the prosecution’s approach to this issue.  AB’s admission that he had received Centrelink benefits inappropriately may have general implications for his honesty.  However, a willingness to accept welfare benefits to which one is not entitled (especially when one is not financially secure) strikes me as entirely irrelevant to a willingness or inclination to sexually abuse one’s child, and no more than remotely relevant to a willingness to lie about having sexually abused one’s child.  Therefore, AB’s possibly inappropriate conduct in relation to his Centrelink entitlements does not in my view have any significance in a determination of his general credibility or of whether he is innocent or guilty of the current charges.

Conclusions about AB’s credibility

1. I consider that AB made no attempt to give a consistent account of events from 1990 until 1999, that where it mattered he did not hesitate to give whatever evidence seemed in his own best interests irrespective of its truth, and that on occasions he deliberately attempted to obscure or confuse the facts by making a series of inconsistent statements, often in quick succession.  It must be said that there was no apparent confusion or prevarication in AB’s firm denials of having sexually interfered with or beaten his son, but having regard to his evidence as a whole I do not accept him as a witness of truth.

Delay in giving judgment

1. Judgment in this matter has been unfortunately delayed for reasons relating to the workload of the Supreme Court.  Delays are particularly undesirable in trials where the credibility of witnesses is significant to the outcome of the trial.  However, despite that delay I retain a clear memory of my impressions of C, AB and indeed R formed at the trial, and my recollections have been confirmed by a careful and detailed review of all the evidence over the several months since I began writing this judgment. 

Elements of the offences

1. Having regard to the evidence outlined above, and to the impressions I formed of the key witnesses, I have reached the following conclusions.

1. I am satisfied beyond reasonable doubt:

(a) that on two occasions between 1 December 1998 and 15 January 1999 while AB and C were living in Gowrie Court, AB penetrated C’s anus, on one occasion with his fingers and his penis (Count 2, being the occasion described in C’s evidence set out at [114] above) and on the other occasion with his penis (Count 5, being the occasion described in C’s evidence at [116] above); and

(b)     that C at that time was to AB’s knowledge his lineal descendant, specifically his son.

1. I am also satisfied beyond reasonable doubt that on each of those two occasions described at [201] above, the sexual penetration was preceded by an act of indecency constituted by AB requiring C to play with AB’s penis (Counts 1 and 4).

1. Finally, I am satisfied beyond reasonable doubt that at some point between 1 December 1998 and 15 January 1999, before the incident of anal intercourse referred to in Count 5, AB beat C with a stick without lawful excuse (Count 3).

1. Accordingly, I find AB guilty of the offences in Counts 1, 2, 3, 4 and 5 on the indictment.  Having found AB guilty of each of the offences charged in Counts 1 to 5, I do not need to reach a verdict on the alternative count, Count 6.

Orders

1. Verdicts of guilty are entered on each of Courts 1, 2, 3, 4 and 5.

   I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:
   Date: 16 December 2011

Counsel for the Crown:  Mr J Lundy

Solicitor for the Crown:  ACT Director of Public Prosecutions

Counsel for the accused:  Mr J Sabharwal

Solicitor for the accused:  ACT Legal Aid Office

Date of hearing:  23, 24, 25 March, 28 May 2010

Date of judgment:  16 December 2011

Appendix A – Relevant legislation

Crimes Act 1900 (ACT) [as in force 1 December 1998–15 January 1999]

26.      Common assault

A person who assaults another person is guilty of an offence ...

92.      Interpretation

In this Part—

“sexual intercourse” means—

(a)the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except where that penetration is carried out for a proper medical purpose or is otherwise authorised by law;

...

(c)the introduction of any part of the penis of a person into the mouth of another person;

92EA.  Maintaining a sexual relationship with a young person

(1)       In this section—

“adult” means a person who has attained the age of 18 years;

“sexual act” means an act that constitutes an offence under this Part but does not include an act referred to in subsection 92E (2) or 92K (2) if the person who committed the act establishes the matters referred to in subsection 92E (3) or 92K (3), as the case may be, that would be a defence if the person had been charged with an offence against subsection 92E (2) or 92K (2), as the case may be;

“young person” means a person who is under the age of 16 years.

(2)       A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence.

(3)       For the purposes of subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions.

(4)In proceedings for an offence under subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred.

92K.Acts of indecency with young persons

(1)       A person who commits an act of indecency upon, or in the presence of, another person who is under the age of 10 years is guilty of an offence ...

92L.Incest and similar offences

(1)       A person who engages in sexual intercourse with another person, being a person who is under the age of 10 years and who is, to the knowledge of the firstmentioned person, his or her lineal descendant, sister, half‑sister, brother, half‑brother or stepchild, is guilty of an offence ...

...

(6)       A person charged with an offence under this section shall, unless there is evidence to the contrary, be presumed to have known at the time of the alleged offence that he or she and the person with whom the offence is alleged to have been committed were related in the manner charged.

Evidence (Miscellaneous Provisions) Act 1991 (ACT) [as in force 1 January 2010–30 May 2010]

51       General immunity of evidence of complainant’s sexual activities

(1)Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.

(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

52 Application for leave under s 51

Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) in a sexual offence proceeding must be made––

(a)       in writing; and

(b)if the proceeding is before a jury––in the absence of the jury; and

(c)in the absence of the complainant, if an accused person in the proceeding requests.

53 Decision to give leave under s 51

(1)The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) unless satisfied that the evidence—

(a)       has substantial relevance to the facts in issue; or

(b)       is a proper matter for cross-examination about credit.

(2)Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.

(3)Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

(4)If the court gives leave under section 51, it must give written reasons for its decision.

(5)       In this section:

proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 1995 (Cwlth), section 102 does not apply to the evidence because of that Act, section 103 (Exception: cross‑examination as to credibility).

Appendix B – Directions for judge-alone trial

General directions

1. The general directions that I have given myself for the purposes of AB’s trial are set out below.

1. The prosecution has brought this charge and the prosecution bears the burden of proving it.  Guilt must be proven.  The accused does not have to prove innocence.  The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence.  He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.  To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.

1. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty.  On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.

1. If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation.  It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

1. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence.  I am not obliged to accept the whole of a witness’s evidence.  I may, if I think fit, accept part and reject part of the same witness’s evidence.

1. The accused has given evidence and his evidence is to be treated by me in exactly the same way as any other witness called to give evidence and his evidence should be taken into account by me in exactly the same way.

1. There is no need for all the verdicts to be the same.  Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?”  If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I will find the accused not guilty of that offence.

Other directions

Evidence given by audiovisual link

1. The complainant in this matter was seven years old at the time of the alleged offence and 19 years old at the time of the hearing.  

1. Division 4.3 of the Miscellaneous Provisions Act applies to evidence in sexual offence proceedings as defined, and s 43 of that Act required the evidence of the complainants in this case to be given by audiovisual link from a place outside the courtroom unless the court otherwise ordered.

1. There was no request that I order otherwise, and the evidence was accordingly given by the complainant by audiovisual link from a place other than the courtroom. 

1. Section 46 of the Miscellaneous Provisions Act requires the jury to be warned that an inference adverse to an accused should not be drawn from the fact that a witness is giving evidence from a place other than the courtroom, so I give myself an equivalent warning.