R v Allen (a pseudonym)

[2024] NSWDC 64

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Allen (a pseudonym) [2024] NSWDC 64

Hearing dates:

4 – 7 March 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Counts 1 to 7: Not guilty

Count 8: On the limited evidence available, the defendant committed the offence charged

Catchwords:

CRIME — Child sex offences — Indecent assault person under 16 years of age — Multiple counts —Three complainants

CRIMINAL PROCEDURE — Judicial directions — Tendency — Complaint evidence – Long delay — Absent witnesses — Significant disadvantage because of delay and incapacity — Good character — Assessment of evidence — Application of principle

MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment —Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Alleged offences against three children — Accused too ill to be present and excused — Defendant unfit to be tried — Principles to be applied

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW); s15A

Crimes Act 1900 (NSW); ss 61A, 61D, 61E, 66C, 77, 294 and 578A

Criminal Procedure Act 1986 (NSW); ss 292A, 292B, 292C and 293A

Evidence Act 1995 (NSW); ss 144, 161A and 198

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW); ss 54, 58(8) and 59

Cases Cited:

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300

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

The Queen v GW [2016] HCA 6; (2016) 258 CLR 108

TO v R [2017] NSWCCA 12

W v R [2014] NSWCCA 110

Category:

Principal judgment

Parties:

Gerald Allen (the accused – a pseudonym)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
L Fernandez (for the accused)
C Todd (for the Crown)

Solicitors:
S Nedwich, Kennedy & Cooke Solicitors
(for the offender)
A Edye for the Public Prosecutions (NSW) (Crown)

File Number(s):

2021/113016; 2021/158389

Publication restriction:

Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used

JUDGMENT

Pseudonyms

1. Pseudonyms have been used for the names of the defendant and the complainants, who were at the relevant times children, to whom he was related. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material, that identifies, or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes.

Introduction

2. Mr Allen is nearly 90 years old. He has dementia and other health problems. He has been charged with a number of offences against three children; his granddaughters Debbie and Cara and his step-grandson Miller. The offences are said to have occurred between betwen1984 and 1992.

3. Mr Allen is represented by Mr Fernandez of counsel and Ms Nedwich solicitor. Mr Allen’s dementia is a cognitive disorder: s 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘MHCIFP Act’). Given Mr Allen’s state of health he was not present at the hearing: s 58(8) MHCIFP Act.

4. On 1 June 2023, Mr Allen was found unfit to be tried by Judge Pickering SC: MHCIFP Act. His Honour determined that Mr Allen would not become fit to be tried within 12 months.

5. The Director of Public Prosecutions (‘DPP’) then advised that further proceedings would be undertaken against Mr Allen: MHCIFP Act, s 54.

6. On 4 March I allowed the prosecution to leave to amend the earlier indictment and add an alternative Count 6. That then required I consider the question of the defendant’s fitness to be tried on that alternative count. After a short hearing I found he was unfit and that he would remain unfit. As expected, the DPP then advised that further proceedings would be undertaken against Mr Allen on alternative Count 6.

7. In accordance with Part 4 Division 3 of the MHCIFP Act a special hearing had to be conducted by this Court.

8. On 4 March 2024 that special hearing commenced in Bega District Court. The evidence concluded on 7 March 2024. I have to determine whether on the limited evidence available, Mr Allen was guilty or not guilty of seven serious charges and one alternate charge.

9. Counts 1 and 2 allege acts of indecency against both Debbie and Cara. They are charged pursuant to s 61E(2) Crimes Act1900 (as it then was). They are said to have occurred at a south coast town between 10 June 1984 and 9 June 1988. Counts 2 and 3 are related charges of inciting acts of indecency against both girls at the same time. They are also s 61E (2) allegations. Count 5 and alternative Count 6 relate to Cara alone and come from an allegation that cunnilingus was performed on her. Count 5 is an allegation of sexual intercourse with a child without her consent, charged pursuant to s 61D(1) Crimes Act 1900 (as it then was). Alternative Count 6 is an assault and act of indecency allegation: Crimes Act1900, s 61E(1) (as it then was). That incident is also said to have occurred at the same south coast town between 10 June 1984 and 9 June 1988. Count 7 is another allegation pursuant to s 61E(2) against Cara said to have accompanied the cunnilingus incident.

10. The remaining Count 8 relates to Miller. It is an allegation of sexual intercourse with a child aged under 16 years, while under authority, charged pursuant to s 66C(2) Crimes Act1900 (as it then was). It is said to have occurred at the same south coast town between 20 October 1989 and 16 March 1991.

A special hearing

11. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

12. The fact that the defendant has been found unfit to be tried for an offence is presumed not to be an impediment to the person’s representation. Mr Allen is represented by Mr Fernandez of counsel and Ms Nedwich, solicitor.

13. A special hearing must not prejudice the defendant any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include:

1. To ensure that justice is done, as best it can be in the circumstances, to the defendant person and the prosecution, and;

2. To give a defendant person an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.

14. At a special hearing the defendant is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which a defendant may enter a plea of either guilty or not guilty.

15. I must reach my verdict on what the MHCIFP Act describes as “the limited evidence available”. The verdicts open to me are:

1. Not guilty of the offence charged;

2. That on the limited evidence available, the defendant committed the offence charged: MHCIFP Act, s 59(1)(a), (c)

16. If I find Mr Allen not guilty then that will be the end of the matter. If, however, I find that on the limited evidence available, he did commit an offence or offences charged, I must then decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what term would have been appropriate. Other non-custodial options are available.

17. If I nominate an appropriate term of imprisonment the Mental Health Review Tribunal will continue to review him and make appropriate recommendations. My duty at present is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that Mr Allen committed the offences charged.

General directions

A special hearing

18. As a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, I must record all of the principles of law applied and each of the factual findings relied upon in reaching my verdicts, paying heed to all of the warnings that a jury would be given had it been empanelled.

Onus

19. The prosecution must prove each element of the offence beyond reasonable doubt. Mr Allen has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fails to meet that high onus, if I have doubts about their case on a count, the defendant must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

20. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a reason in the evidence for that outcome. If I entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that doubt must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally and when deciding whether or not there was a reasonable doubt about his or her evidence with respect to other counts.

21. As the prosecution depends on the accuracy and reliability of each complainant, I must carefully consider what each said and how it relates to the other evidence.

Elements

22. The counts in the Indictment are said to have occurred between 1984 and 1992. Other more serious child abuse provisions were introduced during that period. They were not charged here. Miller was possibly aged under 10 years making the defendant potentially liable for a more serious offence. I focus on the charges before me, no other.

23. Where the date ranges cover multiple potential; offences under s 80AF Crimes Act provides that “a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred.”

24. There is no dispute that if an incident occurred, it occurred at addresses in the nominated small town within the time period alleged. The age of the complainants at the relevant times is not in dispute. If the acts are proved to have occurred, the age related element of the offence will be established. It is not an issue that if the event occurred as alleged for Count 8 Miller would have been under the authority of his grandfather.

25. For all but Count 5, no issue about consent arises, as a child under the age of 16 cannot consent to sexual intercourse, an act of indecency, indecent assault or incitement to indecency: Crimes Act, s 77 (as it then was). Consent and knowledge of absence of consent is however an element of Count 5. Given the age of the child and her relationship to the defendant, no issues about consent or knowledge of lack of consent were raised. While not an issue at the special hearing, I must determine whether each element has been proved beyond reasonable doubt.

26. Accordingly, before Mr Allen can be found guilty (on the limited evidence) of Counts 1 and 2, alleging an act of indecency toward a child I must be satisfied beyond reasonable doubt of each element but in particular that:

1. He committed an act of indecency towards a complainant.

27. Before the defendant can be found guilty (on the limited evidence) of Counts 3 and 4, I must be satisfied beyond reasonable doubt he incited the act of indecency.

28. Before the defendant can be found guilty (on the limited evidence) of Count 5, I must be satisfied beyond reasonable doubt that he:

1. Had sexual intercourse, here cunnilingus, with the complainant;

2. Without her consent;

3. Knowing she was not consenting.

29. If I have doubts in relation to Count 5, I am required to consider the alternative Count 6. Before the defendant can be found guilty (on the limited evidence) of Count 6, I must be satisfied beyond reasonable doubt that he:

1. He assaulted the complainant;

2. The assault was indecent.

30. “Incite” means to urge on, stimulate or prompt to action.

31. “Assault” includes, relevantly, the deliberate touching or the application of force to the complainant, without her consent and without lawful excuse. No issue about consent or lawful excuse arises from the facts of this case. The assault can involve the same action as the act of indecency.

32. “Indecent” means contrary to the standards of ordinary and respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. It is not in dispute that if the incidents occurred as alleged by the prosecution, they would be contrary to the standards prevailing in our community.

33. At the relevant times “sexual intercourse” included cunnilingus or the introduction to any extent of the mouth of the accused by the penis of a complainant: Crimes Act, s 61A (1)(b),(c) (as it then was).

Delay

34. The events in relation to Cara and Debbie are said to have occurred between 1984 and 1988. Cara was able to fix on an incident that occurred at the time of the alleged offending during a hospital visit that can be verified to have occurred in January 1985.

35. Miller was able to fix on possible dates between 1989 and 1992 by reference to when he was in his last two years at primary school. He told a school friend he had been abused when he about 13. He did not give details.

36. Debbie and Cara both said they must have discussed what had occurred as children. But they could not remember any details of these discussions. Debbie recalls an event at a local restaurant when she and her sister had a “flashback" about the abuse. Her mother told me Cara confirmed with her that the same thing had happened to her as to her sister. In cross-examination she agreed, “What [Debbie] said happened, that happened to me as well.”: Tcpt, 5 March 2024, p 97. Her then boyfriend says she said something to him at this time. Cara has no memory of making a complaint.

37. When she was 14 or 15 Debbie told a school friend she had been molested by her grandfather. She told her mother when she was 17. Her mother arranged for her to see a counsellor. Cara said she tried to “block out” the events: Tcpt, 5 March 2024, p 107. Cara would not discuss Debbie’s revelations with her parents at the time.

38. Debbie first went to police in November 2020. Cara and Miller only made a complaint after being approached by police: Trial Exhibit F.

Delay in complaining

39. The prosecution rely upon what Debbie and Miller said after having been – as each said – indecently assaulted or sexually assaulted by the defendant, as further evidence that the acts alleged did occur. There is no doubt some complaints were made but the question I must ask is: Does it support the prosecution case because it makes a complainant’s evidence more believable?

40. Although, I can use what a complainant said about Mr Allen’s conduct toward them as some evidence of the truth of what a complainant said – that is, as evidence that he did sexually or indecently assault a complainant in the way they allege he did – caution is required here, as the complaints lacked detail.

41. The complaint evidence is important here as it enables an assessment of the consistency, or otherwise, of each complainant’s account.

42. The complaint evidence was hearsay, that is it involved the witness repeating what another had said to them. Care is always required in such cases as it is rare, particularly after a long delay, to remember and then recount accurately, everything another told you.

43. Further, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions. I need to consider the complaints in context noting what was said, to whom it was said, and when the complaints were made.

44. I note that, given each complainant’s age, personal history and relationship to the defendant, there may be good reasons why they did not raise the allegation immediately or for some time thereafter. A failure to do so does not mean that the allegation is false: Criminal Procedure Act1986, s 294.

45. While this direction is of considerable importance there is also a countervailing consideration of relevance here that must be considered as it has relevance to assessing the credibility of each complainant’s evidence about what they said the defendant did. While Mr Fernandez did not argue that the absence or delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually or indecently assaulted, it is submitted that the long delay has impacted on each complainant’s credibility, that is, the believability of their accounts, making what they said potentially unreliable: Criminal Procedure Act, s 294(c).

46. There must be sufficient evidence to justify such a direction. There must be:

“… A perceptible risk [requiring such a warning] arises when there is a feature of the evidence which may adversely affect its reliability, and which may not be evident to a lay jury”: The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 at [50].

47. The long period of time between when the events are said to have occurred and complaint in circumstances where memories are said to have been recovered or perceived as “flashbacks” require this additional direction so far as the two female complainants are concerned.

Delay – Impact on defence

48. Both the delay of itself, and the subsequent decline in Mr Allen’s cognitive capacity, has impeded the ability of those appearing for Mr Allen to defend him by testing the prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt. He has been unable to give detailed instructions to his legal team. He is now unable to give an account of events.

49. Evidence about the premises and the caravan is no longer available. There is limited evidence about when he resided at various locations and his work commitments and recreational habits at the time.

50. His wife, who was present at the homes where the events are said to have occurred, died early this century. His wife’s mother who lived at a flat at the home is also deceased.

51. The long delay means that evidence cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that a complainant’s memory for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it.

52. The complainant’s inability to recall precise details of the circumstances surrounding the incidents makes it difficult for Mr Allen to throw doubt on her evidence by pointing to circumstances which may contradict her. Had Mr Allen learned of the allegations at a much earlier time he may have been able to recall relevant details or find items of evidence that might have either contradicted the complainant and or supported his case which could have been used by his counsel in cross-examination of a complainant. Records that would have been made at the time of the allegations are now unavailable. It would also have been possible to check whether records that would ordinarily have been made had a complainant’s account been accurate where in fact in existence and drawn conclusions from their absence. That reasoning process is unavailable to the defendant.

48. Mr Allen has thus been put into a situation of significant disadvantage which have here prejudiced the conduct of his defence. As a result, I must give the prosecution case the most careful scrutiny, bearing those cautions in mind.

Other important direction

Tendency

54. The prosecution, by notice, asks that evidence given by the respective complainants be admissible in the trial relating to the others. Ordinarily where counts relating to multiple complainants are heard together the evidence in relation to one is not able to be used and is inadmissible in the case of the other. And, I would have to take great care not to allow a finding in relation to one complainant to influence my determination in relation to the other by a process of false reasoning that – because a defendant did something to one complainant, he must have done something to another.

55. Two exceptions to that general rule apply here. The first is where, the events described are said to have occurred in the presence of both complainants.

56. The second is where, as here, after proper notice is given the prosecution allege a tendency in Mr Allen to act in a particular way or have a particular state of mind: Trial MFI 11. And that tendency and state of mind was manifest when a count or related but uncharged event occurred.

57. The prosecution ask that any tendency revealed by the evidence of a complainant be admissible intra-complainant so far as the counts relating to them alone are concerned. This is technically possible: The Queen v Bauer [2018] HCA 40; (2018) 266 CLR 56.

58. Mr Fernandez asks that before I apply tendency reasoning intra-complainant, I first satisfy myself that the evidence relied on be established on beyond reasonable doubt: Criminal Procedure Act 1986, s 161A(2). I accept that submission.

59. Given Counts 1 to 4, 5 and 7 relate to single incidents and what is said depends on that complainant’s account, intra-admissibility could have little, if any, probative value here. There are no special features of a complaint’s account in relation to one specific part of an incident that adds probative value to what he or she said about other parts of that incident. I cannot conclude his or her account is truthful just because he or she gave an account that Mr Allen exhibited similar sexual interest in him or her during the same incident, for the reason noted in IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [62] - [63].

60. The alleged tendencies are:

1. A tendency of the accused to have particular state of mind namely a sexual interest or attraction to pre-pubescent children aged between 5 and 12.

2. A tendency of the accused to act in a particular way, namely, to act on that sexual interest or attraction by engaging in sexual activity with or toward each complainant whilst those children were under his authority or care as grandparent in/near his caravan and when the opportunity arose.

61. The defence accepted that at law such evidence is cross admissible between complainants. Their response however is that it would not assist in my determination of the issues.

62. Where there is no direct evidence about either the alleged tendency or state of mind on a specific occasion, I can have regard to all the other evidence in the trial to reason by way of inference or deduction. If the tendency is proved it may assist in resolving doubts in relation to an offence.

63. If there are other reasonable explanations available these must be considered. Further, even if I accept one or more allegations it would be wrong to reason that just because Mr Allen has done some things that he is therefore generally a person of bad character and thus more likely to have committed the offences charged.

64. The prosecution say that I will be satisfied Mr Allen had this sexual interest and acted on it as alleged, making it more likely that he committed each of the offences charged in the indictment.

65. However, if nothing happened there can be no evidence capable of showing the state of mind alleged or any alleged tendency. The suggestion is a distraction, an allegation, nothing more. I don’t work backwards and presume a tendency. Rather, I go to the evidence, examine it carefully or scrutinise it carefully. Before I can use the evidence of other proved counts in the way the prosecution asks, I must make two findings:

1. That one or more of those acts actually occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon actually took place.

2. If I do find one or more of those acts alleged as a count occurred, then I must go on to consider whether, from the act or acts I have found occurred, I can then infer Mr Allen had the tendency and state of mind alleged. If I cannot draw that inference, then I must put aside any suggestion that Mr Allen had a sexual interest in any or all of the complainants or a tendency to act on that interest.

66. That an inference could be drawn is not the test. If there are other alternatives or inferences reasonably available, inferences that are consistent with Mr Allen being innocent, then the prosecution has not proved its point. The evidence must not be used in any other way.

Assessing the evidence

67. The evidence must be considered as a whole. Some of the evidence is direct – some circumstantial as it involves drawing inferences from proved facts. I may not, as a matter of law, find the defendant guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than the guilt of the defendant.

68. As part of my fact finding process, I can make value judgments. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. During the hearing I raised matters of common knowledge, acquired during my time as lawyer and judge practicing in the locality and in child sexual assault matters. I gave the parties opportunity to make submissions to ensure that the party is not unfairly prejudiced: Evidence Act 1995, s 144.

69. Non-consensual sexual activity can occur in many different circumstances, and between different kinds of people who are related: Criminal Procedure Act, s 292A.

70. There is no typical or normal response to non-consensual sexual activity. People may respond to non-consensual sexual activity in different ways. These ways can include by freezing and not saying or doing anything. I must avoid making assessments based on preconceived ideas about how people may respond to non-consensual sexual activity: Criminal Procedure Act, s 292B.

71. People who do not consent to a sexual activity may not be physically injured or subjected to violence or threatened with physical injury or violence. The absence of injury or violence, or threats of injury or violence, does not necessarily mean that a person is not telling the truth about an alleged sexual offence: Criminal Procedure Act, s 292C.

72. There is always a danger that when attempting to recall events from many years ago that the recall is not of the events but of a later “memory” of the event; a memory that can be influenced by many factors, including what was said by others or other experiences. This is particularly so if one is trying to recall events from childhood, when at the time you had insufficient knowledge or experience to know what was happening or why. In such situations a witness can honestly believe what occurred is correct but be completely wrong in that belief.

73. I note that for most people giving evidence in a trial is not common and may be a stressful experience. Trauma may affect people differently. This means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not. The presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence: Criminal Procedure Act, s 292D.

74. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values, and life experiences.

75. There are many variables – I must take care – the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

76. I must ask myself whether the evidence discloses a real risk of contamination or concoction such that it gives rise to a doubt or deprives a complainant’s evidence of probative value or renders it inherently implausible or unbelievable. That said, the evidence of each female complainant is that they have not discussed the events since they were children and have not had contact for 20 years. The male complaint was aware a complainant had been made by his step cousins only after being spoke to by police.

Possible inconsistency

77. When assessing the evidence, I must consider whether or not any differences in each complainant’s account and between them (so far as the female complainant’s accounts are concerned) are important to my assessment of their truthfulness and reliability. But when I do so I must note that the experience of courts over many years has shown that; trauma, if it was suffered by a complainant, may affect people differently and that both truthful and untruthful accounts of a sexual offence may contain differences. This is because people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. It is thus relatively common for there to be differences in accounts of a sexual offence: Crimes Act 1900, s 293A.

78. I must decide whether or not any differences in the complainant’s accounts are important in assessing the complainant’s truthfulness and reliability. This direction is of considerable importance in this trial: See [81] below.

Context

79. Two complainants Cara and Miller gave evidence of incidents other than those set out as counts in the indictment. Miller and his younger sister also gave evidence of other possibly inappropriate behavior toward them by Mr Allen. This “context evidence", is before me for a limited purpose only.

80. It is not evidence that Mr Allen committed the offences specified in the indictment. I remind myself my task is confined to considering whether the prosecution can prove beyond reasonable doubt that Mr Allen did commit one or more of those specific offences.

81. Even if I accept other incidents occurred, I cannot substitute evidence of Mr Allen's alleged conduct on any other occasion for proof of his guilt of the specific counts. Nor can I use the "context" evidence as a general disparagement of his character. The "context evidence" may however help explain what may otherwise be puzzling or inexplicable and enable me to realistically understand the allegations made by a complainant; allegations that are in dispute. Here, for example, to explain that a complainant acquiesced to sexual activity because she had become conditioned to do so. It may also, if proved, as I have noted, be used for a tendency purpose: See above [78].

Character

82. There is evidence in the agreed facts (Trial Exhibit A) that Mr Allen has no criminal convictions for anything other than drink driving offence in 1988 and a non-conviction, s 558 dismissal for another driving offence in 1979.

83. I am entitled to take that evidence of good character into account in his favour when I consider whether the prosecution has proved his guilt beyond reasonable doubt. I must consider that good character when I come to consider his answers to question in his police interview of 10 March 2021: Trial Exhibit C.

84. I am entitled to reason that a person of good character is unlikely to have committed the offences charged. His good character does not provide any kind of defence. Persons of apparently good character can, and do, commit offences of the type alleged here. It is only one of the many factors which I take into account in assessing the evidence and determining whether I am satisfied beyond reasonable doubt a count or counts have been proved.

Uncalled witness

85. A very important person in both narratives of events was the defendant’s wife, and to a lesser extent her mother. Mrs Allen died in 2001.

86. Further we have not heard from Miller’s mother or father who were present at the homes where and when some events are said to have occurred.

87. I can take the fact that there has been no evidence from a person, who might have something relevant to say, into account when I decide whether the prosecution has proved the guilt of the defendant, however, I do not guess or speculate what they might have said if they had been called.

The evidence

Summary

88. The following evidence is admitted or not in serious dispute.

89. The defendant was born in 1934. He married and had three children. One daughter had two daughters, Debbie, and Cara. In 1985 they were both 6 years old. His son married a woman who already had two children, Miller, and his sister. Miller was born in 1980.

90. The families lived in towns on the NSW South Coast. At times Debbie and Cara would regularly visit their grandparents. Sometimes they spent the night at their grandparent’s home. A times their great grandmother lived in a flat under the home. Their aunt also lived there, and later when their great grandmother died, the aunt moved into the flat.

91. License and car registration records indicate the defendant and his wife lived at that home between 1982 and 1988. In 1989 they were living in another house in the same town. They later moved to another town by a river. A caravan was generally parked outside each home.

92. Miller and his family would visit the second home. Miller and his sister would also visit the house by the river and at times spent the night there being babysat by their step-grandparents. By this time the defendant’s wife was ill and need to take oxygen. She died in 2001.

93. The defendant now lives in a retirement facility in another town. He suffers from dementia and has other physical ailments. He was no able to attend the hearing because of his physical and mental incapacities.

94. Debbie told two high school friends she had been molested by her grandfather. One, the same time as the “flashback” at the restaurant when she was 17: Tcpt, 4 March 2024, p 54. She could have told the other at an earlier time: Tcpt, 4 March 2024, p 39. Or at the same time as the restaurant incident: Tcpt, 4 March 2024, p 54. That witness believes she was “maybe” 14 or 15 at the time: Tcpt, 5 March 2024, p 110.

95. In 1997, when she was 17, Debbie told her parents that the defendant had made both girls touch him ‘there’ (meaning his penis). Her mother referred Debbie to a counsellor. Her counselling notes were provided to the parties with Cara’s consent: Criminal Procedure Act, s 300; Evidence Act 1995, s 126C.

96. The notes say:

“[Debbie] disclosed that when she was approximately 8 years old, her and her… sister [Cara] were in their maternal grandfather’s caravan when he got them to touch his penis. [Debbie] said she only remembered late last year when her and [Cara] were out at … restaurant and they both remembered together.”: Trial Exhibit K.

97. Cara does not recall saying anything at that time.

98. At about this time the girl’s mother confronted her father accusing him of having her daughters touch his penis. She said he denied the allegations.

99. When he was about 13 or 14 Miller confided in a school friend, who had himself revealed, he had been abused that, “The same thing had happened to him from his step-grandpa.”: Trial Exhibit J.

100. In 2020 Debbie made a complaint to police and made a police statement. In March 2021 her allegations were put to the Defendant in a formal recorded interview: Trial Exhibit C. He emphatically denied them.

101. Later police approached both Cara and Miller and they made police statements.

102. Statements were taken from complaint witnesses and Miller’s sister. No statements were taken from Miller’s parents. The DPP made no requisition to police to obtain statements from those witness: Tcpt, 6 March 2024, p 201.

103. The defendant was brought before the Court following service of Court Attendance Notices.

Disputed evidence – summary

104. Debbie told the Court that she recalls an occasion when she and [Cara] were playing in the caravan outside her grandparent’s home: Tcpt, 4 March 2024, pp 32-37. She was aged 5, 6 or 7. She was asked to provide a copy of a photograph of her and her sister at the time. It was tendered as Trial Exhibit B2.

105. Her grandfather was on the bed in the caravan. He unzipped his brown trousers exposing his penis to her (Count 1) and her sister (Count 2). He then moved his hands up and down his penis. She thinks he said to rub his penis with your hand.

106. She saw his penis and lots of hair. She didn't think it was erect. Each of them did as they were asked and rubbed their hands up and down on his penis, like he showed them. Each of them rubbed it after the other one did. She saw Cara rub his penis. (Count 3, Debbie and Count 4, Cara).

107. Looking back now as an adult she can’t remember whether he ejaculated. Nor can she remember how it ended. She could not recall whether there was any smell of alcohol around that time. She said she knew it was wrong, “Cause I was a little kid and I was probably scared, cause he's a horrible man.”: Tcpt, 4 March 2024, pp 37-38.

108. The girls then left the caravan. No other incidents were recalled. She said, “I don't have any more memories.”: Tcpt, 4 March 2024, p 38.

109. Cara told the Court that she recalls an incident where she was on the bed in the caravan. Her grandfather had removed his and her clothing. He put his head between her legs on her private part (what she now described as her vaginal area) and made a slurping sound – like you do when you eat spaghetti. (Counts 5 and alternative Count 6).

110. He also touched her private parts and in doing so his watch scratched the top of her wrist (Count 7). She remembers her sister was there as she ran off to tell her grandmother about the scratch because her sister was still in the van with the defendant.

111. She said she did not tell her grandmother about anything other than the scratch and that she lied and made up a story as to how it had happened. She said there were other similar events and that she recalls them happening about the time she went to hospital as she remembers being scared of him at that time.

112. Cara told the Court she and her sister used to go down to the caravan and play and Mr Allen used to sleep in the caravan when he had too much to drink.

113. She focused on an incident she remembers – the time he scratched her with his watch. Her sister was present, “I just remember being on the bed with him and his mouth being down below my private area …. And then I just remember his fingers. And I remember seeing, like, his private part also. And I just remember him making a funny noise when he was down in that area.”: Tcpt, 4 March 2024, pp 68 - 69.

114. He took her clothes off and put his mouth down below. She said she has clear recollection but then said, “I wish I didn't.” She remembers his pants being off and remembers seeing his private part: Tcpt, 4 March 2024, p 72.

115. She can't recall if he said anything. Later she spoke to her nan. She must have been holding her wrist, “Cause that hurt.”: Tcpt, 4 March 2024, p 76. “She asked me what had happened, and I just made something up. I didn't tell the truth.” Tcpt, 4 March 2024, p 72. She said, “I'm pretty sure I would've been frightened, absolutely frightened.”: Tcpt, 4 March 2024, p 75.

104. She said she had a clear memory and that it happened more than once. At least four or five times when she was “about aged seven maybe.”

105. She said, “I – to be honest with you – never told anyone. I would've went to the grave. I wouldn't have said this, told anyone. I did have some problems with my mental health, and I did go and speak to a counsellor and that was the only time I've brought it up, was in that counselling session. … Maybe 2017, 2018.” Tcpt, 4 March 2024, p 79.

106. When asked why she had spoken up she said, “In the beginning I was too frightened. Honest to goodness, I was so frightened … I just didn't want to see him.” But she changed her mind because, “After a while I thought about it and, like, I've got two adult children and I thought if that happened to them, I would want them to speak out, so that played a big part in it.”: Tcpt, 4 March 2024, p 81.

107. She never mentioned it to parents, but her sister did: Tcpt, 4 March 2024, p 80. She had no recollection of an occasion at a restaurant. But so far as the incident itself, she said in cross-examination, “I've always remembered that.” Tcpt, 4 March 2024, p 99.

108. I asked her about the gap between the caravan incident and the revelation when she was 17, during which time she continued to see her grandfather. She said, “I've always pushed it back cause I don't want to remember it, but it always comes to the forefront. I'm very good at pushing it back.”: Tcpt, 4 March 2024, p 99.

109. In cross-examination Debbie was asked about this incident: Tcpt, 4 March 2024, pp 50 - 51. She said she did not remember, seeing the defendant “[Gerald] using his mouth on [Cara]” or hearing “[Gerald] making any funny … slurping noises.” She noted her disgust at what was put to her. Further she said she did not see him doing anything with his fingers to Cara. She said that she can't remember his watch scratching her at all.

110. Miller told me that when he visited Mr Allen “on greetings or goodbyes, he would awkwardly give us elongated hugs, sort of wet kisses, and also he'd be groping us and telling – like, whispering in our ears that he loved us, which was sort of weird…”: Tcpt, 5 March 2024, p 165.

111. Miller told the Court that he recalls a family visit to the second home on the south coast. His step-grandfather asked his parents if he could take Miller outside to lock up the caravan, which was parked out the front. He said:

“Well, we got out to the caravan, we got to the front door of the caravan. Because of the position of the caravan, it was quite, quite dark. There was a streetlight opposite the caravan on the street, but it cast a fair bit of shadow. Once we reached the shadow area, [Mr Allen] turned to me and grabbed me by the shoulders, leaned down and started telling me that he loved me. He said that a couple of times trying to reassure me or something and then he got down lower, unzipped my pants and he began sucking my penis. This lasted for a few minutes, and I believe he was – he kept stopping and reassuring me saying ‘I love you; I love you’, and, and that's when I became a bit hazy and I sort of went into shock, and I don't really know how long that lasted for. But after that happened, I remember us walking back inside and, and after that, my recollection of the night gets pretty fuzzy.”: Tcpt, 5 March 2024, pp 171 - 172.

124. He then took Miller inside. Miller said he said something about not feeling well to excuse his discomfort. He has never told his parents about the incident.

125. He did however tell a school friend that his grandfather had molested him. This conversation took place a few years later. Miller did not tell his parents. They were not interviewed and can neither support nor contradict his version of events.

126. Under cross-examination Miller said that he never said anything to his mother shortly after it happened and from then onwards because of, “Fear of embarrassment and I was just – like I said, I'm a shy person. I don't like confrontation, so there was no way I was going to bring that up. I was way too scared [about] having my penis sucked by a man.” And a feeling that what happened was something that was wrong: Tcpt, 5 March 2024, pp 182 - 183.

127. He did say that on later visits after the Allens had moved to the house by the river the defendant would try to and otherwise touch him. His sister confirmed that type of behaviour did occur. Noting that at the time their nan was not well or mobile as she used an oxygen machine.

Disputed evidence discussion

128. It is not in serious dispute that if I accept what each complainant said to the beyond reasonable doubt standard, each element of each offence would be proved on the limited evidence available. There are some issues with each complainant’s account. They must be reviewed. This review has been informed by the comprehensive submissions from each party.

129. The Crown’s submission is that I would accept that Miller gave clear concise evidence supported, so far as possible, by his sister’s recollection of the defendant’s behaviour and his complaint of abuse while still a child.

130. So far as each Cara and Debbie are concerned, he submits that I could comfortably conclude that each event occurred and the fact that each witness cannot now remember what the other describes does not mean the events did not occur. Nor, he said, do their different recollections impact on their credibility.

131. In his written (Trial MFI 19) and oral submissions Mr Fernandez set out detailed reasons why the evidence of each complainant should not be accepted. Noting that if traumatic events of the type described occurred and were in fact witnessed, they would not be forgotten, even by a child aged as young as 5.

Police investigation

132. Detective Senior Constable Ware, in evidence, and through tender of his statements and the agreed facts, took me though the progress of his investigation and the responses of the complainants to his questions: Trial Exhibits A, F, G, K and H.

133. He accepted that Cara had told him, “But because old memories that I have consciously buried to protect my emotional wellbeing are still coming to me, there may be more memories that come to me after making this statement.”

134. Detective Ware interviewed Mr Allen on 10 March 2021. Detective Ware put Debbie’s allegations to him and received emphatic denials. Mr Allen however had great trouble remembering any details from the 1980s.

135. The other complainants had not yet been interviewed. On legal advice Mr Allen declined a further interview. That was his right and no negative inferences can be drawn from his exercise of that right.

136. Detective Ware was able to marshal some of the times and dates events occurred and these were incorporated into the Agreed Facts documents: Trial Exhibits A and K.

Application of principle and direction

Prejudice

137. Mr Allen unfitness has prejudiced his defence. The procedures adopted in the special hearing are designed to minimise, but they cannot not eliminate, that prejudice. The fact of prejudice must be factored into my assessment of the evidence. But it does not relieve me of the task of determining the issues on the basis of the evidence before the Court. Other than drawing available inferences from proved facts I cannot speculate about material that is not before the Court as evidence.

138. Delay has caused prejudice to both parties. That prejudice must be addressed in different ways. Fundamental to that difference is that the prosecution has at all times the onus of proof and that the standard of proof, so far as the elements of an offence are concerned, is beyond reasonable doubt.

139. I appreciate that a complainant who has been indecently assaulted by their grandfather may be reluctant to come forward and complain. Confusion, fear, lack of knowledge and understanding can all influence a decision to not come forward. A child’s reasoning process is not the same as that of a mature adult, but an adult can also experience similar emotions. The fact of delay does not necessarily indicate that the allegation that the offence was committed is false. Delay of itself does not undermine a complainant’s credibility: Criminal Procedure Act 1986, s 294.

140. Further, both truthful and untruthful accounts of a sexual offence may contain differences. Delay will increase the risk that differences may emerge. Few, if any of us, have perfect recall. An event is rarely recalled and recounted in the same way each time a memory is accessed. People may not remember all the details of an event or may not describe an event in the same way each time. It is relatively common for there to be differences in accounts of a sexual offence. And, over time the risk of difference is accentuated. Differences in accounts of the same incident do not necessarily mean an allegation is false. They can be entirely understandable.

141. Similarly, where one event amongst many similar events is recalled the possibility that some facts may be misremembered and melded does not necessarily indicate an event did not occur.

142. But and it is important ‘but,’ where the event is said to found a criminal charge that must be proved beyond reasonable doubt, an inability to recall and recount with accuracy what happened during that event may be critical to any assessment of whether the heavy onus placed on the Prosecution has been met.

Evidentiary impact of the delay

143. The delay has meant that material that might have been available to support or corroborate a witness’ account is no longer available. There are here, understandable reasons, given the lapse of time, why records that might support the prosecution case or that raised by the defence cannot be found or produced.

144. But the absence of evidence should not be protective of the interests of the prosecution. Further, the absence of evidence must be taken into account when I consider the capacity of the defendant to test the prosecution’s case because of extraordinary delay: See above at [48] – [58].

145. It is not in dispute that given a delay of 30 years (Count 8) and over 40 years (Counts 1 to 7) potential evidence has been lost or is otherwise unavailable and every witness’ recall must have been affected. It is not in dispute that the delay has meant the defendant now has a cognitive impairment that did not exist at a time when the allegations are said to have occurred. And, that that cognitive impairment has impacted on his capacity to recall or rebut what others recall of events from 1981 to 1985. That delay has created a significant forensic disadvantage for the defendant. I need to take into account the nature of that disadvantage when considering the evidence before me: TO v R [2017] NSWCCA 12 at [167]; Evidence Act, s 165B applies; W v R [2014] NSWCCA 110; Criminal Procedure Act, s 133.

146. I cannot speculate about what might have been called. I remind myself again where the onus of proof lies at all times.

147. The defendant has no obligation to prove anything and must be given the benefit of any reasonable doubt held by the judge. His inability to obtain documents or other evidence that might support a defence or enable him to challenge a complainant’s account must be considered and given weight. They are considerations relevant to my evaluation of the evidence.

Tendency

148. Evidence of each complainant’s allegations were admitted as tendency evidence in proof of the other complainant’s counts: The Queen v Bauer. However, while admissible I still have to consider what weight I give the evidence.

Debbie’s account

149. Cara displayed obvious anger and resentment toward the defendant. What she says he did to her and her sister and her belief her parents did nothing still impact on her. This is despite the fact her parents did do something as soon as she revealed the allegations to them when she was 17.

150. While one school friend says she was told while the girls were 14,15 or 16 the weight of evidence is that the revelation only occurred after an incident when aged 17, Debbie had a “flashback” recalling one incident in the van where both girls were made to touch the defendant’s penis.

151. She had no recall of any other incidents. Her account of the incident itself however was detailed and believable.

Cara’s account

152. Cara appeared to be a thoughtful and considered witness. She was not overly emotional, except when made to recall the acts themselves and the noise allegedly made by the defendant.

153. She gave me the impression when recounting the incidents that found each count that she was doing her best as a mature adult to explain how she reacted to incidents that occurred when she was a child; a child without any true understanding of what or why Mr Allen was doing things she said he did to her. There was no obvious exaggeration or sign of fabrication in her accounts; which if accepted would prove each element of the Counts relating to her.

154. There were no apparent embellishments or attempts to portray the defendant in a worse light than that revealed by her descriptions of what he was alleged to have done. However, little other detail was provided that might have enabled the accuracy and reliability of her account to be tested. When challenged on such details her reactions were defensive. It was evidence that whatever memories she had had been buried deeply and that each attempt to recall the events was distressing to her.

155. Her reluctance to discuss the incidents in any detail or take it to police until after they had initiated proceedings, do not diminish the power of her accounts. Her accounts of each allegation were believable.

156. She recalls other similar incidents, indicating the defendant’s continued interest in the girls.

157. The events she described also involved her sister. What she described however was materially different than the account Debbie gave.

158. Both sisters describe the caravan and the defendant being on the bed. Both describes seeing his penis. Otherwise, they describe very different events indeed.

Miller’s account

159. Miller impressed me as calm and thoughtful witness. He did not embellish. He focussed on describing what occurred. His account was clear did not seem damaged by the passage of time or careful cross-examination by Mr Fernandez. He did tell someone a few years after the event, although no details were given.

160. His account of later incidents (falling short of criminal behaviour) was corroborated by his sister. This indicated the defendant’s continuing interest in him and his sister, consistent with the tendency alleged.

Other evidence

161. Miller’s account received some support from his sister. She too spoke of the defendant’s habit of being “touchy feely” and grabbing, touching her on her bottom when greeting her or as the opportunity presented. She and her brother were however able to rebuff the defendant.

162. The defendant’s denial and apparent disgust at being accused by Debbie must be considered. So too must his good character. While he was a drinker there is nothing in his long life other than these allegations to suggest he committed such serious offences against children in his care.

Consideration

163. Those conclusions do not, however mean I must convict Mr Allen. I have to consider a number of other important factors.

164. Although this is a special hearing that must be determined on the limited evidence available, the defendant is entitled to a presumption of innocence and a requirement that each count be proved beyond reasonable doubt before finding an offence is proved can be made. His good character and denials must be taken into account. So too must be the extremely prejudicial impact of such a long delay.

165. Mr Allen had an opportunity to commit each offence. Sadly, in my experience, as lawyer and judge, none of the events described was incomprehensible or absurd – such incidents occur rarely but regularly. I am unable to accept Mr Fernandez’s submission that risk of discovery was too great to make the allegations plausible; again, experience shows that offender’s do acts that risk discovery.

166. Mr Allen denied any offending in his police interview. He could in the circumstances do no more.

167. The long delay has meant that Mr Allen is not in a position to challenge, to any significant degree, what was alleged by reference to work, school or hospital records and other documents. His late wife, a critical witness as to what was occurring at the time, is unavailable. Miller’s parents may have had important things to say. They were not called.

168. In 2024 after a delay of over 40 years, for Count 1 to 7, and over 30 years, for Count 8, there are now few contemporary materials produced and few facts can be objectively established. Rather, I must assess the subjective accounts of multiple witnesses.

169. Long delay can lead to memories being lost. Once lost memories can be reconstructed. If reconstructed their reliability may suffer. Human memory is a very fallible thing. It is often impossible to know whether you are remembering what happened or your memory of the remembering an event. That is why, while it is not necessary or required, a trier of facts looks to other evidence and accounts, or indeed anything, that might lend support to a complainant’s account.

170. The defendant had the opportunity to commit each offence. Each complainant believes the events occurred. They were honest witnesses doing their best to recount events that occurred many years before when they were each very young, Debbie and Cara more so than Miller.

171. Both Debbie and Cara, aged 17 in 1996, said something had happened in the caravan. Given the contemporaneous hospital record and the photographs (Trial Exhibit B2) this would have been when they were aged only 5. Remembering what occurred when so young is far from impossible, remembering exactly what occurred is more difficult, particularly if conscious or unconscious forgetting then occurred.

172. Debbie gave details similar to what she now says happened. She said the details had come to her in a “flashback”, but that while she must have discussed it with her sister, she had no memory of doing so. Cara did not go into details in 1996 and only recently has she tried to bring the memories up. Both women told me; where the events occurred, who was present, and when the events occurred, but their respective descriptions of what occurred cannot be reconciled.

173. If they were describing the same event their descriptions are critically different. If they were describing different events, each has forgotten or not been able to draw from memory something that would have been expected. Both accounts give me ‘who’, ‘where’, ‘when’ an event occurred, but leave me unable to discern ‘what’ occurred.

174. Where a criminal offence is alleged, the prosecution is obliged to prove each critical element beyond reasonable doubt. If I cannot say what occurred, it is not enough to say I believe something criminal occurred, each element alleged must be proven to a very high standard. While I am quite confident something sexual occurred between the defendant and the girls, I am not at all confident about what exactly occurred.

175. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. And here, I cannot do so. The defendant must have also the benefit of that doubt on each of Counts 1 to 7.

176. Miller’s evidence about Count 8 was clear. It was believable. He was about 8 when the events described occurred. He told a friend he’d been abused a few years later. He gave an account of other behaviour by the defendant that was supported by his sister. His parents may have been able to support or contradict his account, but their absence, while important, as the prosecution have the onus of proof, is not decisive. I believed his account. It was as I have noted, not implausible.

177. My finding in relation to something sexual having happened in the caravan with the girls establishes the defendant did have the sexual interest alleged and a tendency to act on it. That assists me incoming to the conclusion I do about the elements of Count 8.

163. I accept that defendant was not in any position because of delay and infirmity to contradict Miller’s account, and appropriate allowance must be made for those facts, but on the limited evidence that is available to me I find Count 8 was proved beyond reasonable doubt.

Verdict

179. On the limited evidence available:

1. Count 1: Not guilty.

2. Count 2: Not guilty.

3. Count 3: Not guilty.

4. Count 4: Not guilty.

5. Count 5: Not guilty.

6. Alternative Count 6: Not guilty.

7. Count 7: Not guilty.

8. Count 8: On the limited evidence available, the defendant committed the offence charged.

Orders

180. The Court makes the following Orders:

1. Counts 1 to 7: Not guilty of the offence charged.

2. Count 8: On the limited evidence available, the defendant committed the offence charged.

3. Count 8 stood over to Friday, 3 May 2024 for further submissions regarding penalty at Wollongong District Court at 9.30am.

**********

Amendments

15 March 2024 - Amended typographical error.

Decision last updated: 15 March 2024