R v CEM - [2020] NSWDC 537

District Court

New South Wales

Medium Neutral Citation: R v CEM [2020] NSWDC 537
Hearing dates: 19, 20, 21, 24, 25 26, 27, 28, 31, August and 1 and 2 September 2020
Date of orders: 16 September 2020
Decision date: 16 September 2020
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
See at [265]

Catchwords:
CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14

Legislation Cited:
Evidence Act 1995 (NSW)
Crimes Act 1900 (NSW)
Crime Sentencing Procedure Act 1999 (NSW)

Cases Cited:
ARS v R [2011] NSWCCA 266 High Court in Fleming-v-R (1998) 197 CLR 250 R v Markuleski (2001) 52 NSWLR 82 R v O’Toole [2020] NSWDC 423 Pell v The Queen [2020] HCA 12

Texts Cited:
Nil

Category: Principal judgment
Parties: Regina (Crown)
Accused (CEM)
Representation: Counsel:
Oliver, Crown Prosecutor
Carty for the Accused

File Number(s): 2018/00373255
Publication restriction: Unrestricted
Note: s578A Crimes Act 1900 (NSW) and;
Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Contents

JUDGMENT

Introduction and nature of the charges

Counts 2 to 11

General Directions

Sexual Assault Directions

Factual findings Directions

Inferences
Failure to call and recall witnesses
Markuleski / multiple counts
Reliability warning
Accusatory statements in the presence of the accused
Forensic disadvantage

Complaint evidence

Complaint Direction

Going to the truth of the facts asserted
Going to credit

Tendency evidence

The elements of the offences

Count 1: s66EA(1)
Counts 3, 7 and 8: act of indecency under 61N(1)
Alternative verdicts to counts 3, 7 and 8

Count 5: aggravated indecent assault under s61M(1)
Alternative verdict to count 5

Count 6: aggravated sexual intercourse without consent; s61J(1)
Alternative verdict for count 6

Count 9: sexual intercourse with a person above the age of 10 and under the age of 14; section 66C(1)
Alternative verdict re s66C

The evidence

Generally
Count 1.
Counts 2, 4, 10 and 11
Count 3
Count 7
Count 8
Count 9
Count 6
Count 5
The last time
Complaint evidence
To K (though not remembered by K)
Jack
Pam (and X)
Susan
To her father
To her mother

Tendency evidence
Y
Chrissy

Pell v The Queen [2020] HCA 12

Conclusions

Matters to be considered
Complaint and tendency evidence
Frequency of X sleeping over at 1 Canada Street
How often was the accused at 1 Canada Street? The availability argument
Concoction
Police reconstruction
No evidence of counts 2, 4, 10 and 11.
The last time
Timing
No witnesses of any inappropriate behaviour at all by the accused

The reliability of the evidence of X

Generally
Count 5 (mattresses allegedly on floor)
Count 9 (allegedly on top bunk with Fiona)
Count 6 (allegedly on bottom bunk with K)
Count 3 (allegedly exposes penis from verandah)
Count 7 (alleged exposure when Fiona leaves room)
Count 8 (alleged exposure when sitting in daughter’s room)
Statutory alternatives
Count 1

Result

VERDICTS

JUDGMENT

Introduction and nature of the charges

The accused stands trial on an indictment of one count of contravening section 66EA of the Crimes Act, which alleges that he, as an adult, maintained an unlawful sexual relationship with a child, the complainant. The date range pleaded in the indictment for count 1 is between January 2007 and 31 December 2010. The complainant was born on 7 August 1998, so that she was aged between 8 and 12 in this period. The accused at all times was over the age of 18, so that there is no dispute that the elements of count 1 of “adult” and “child” are relevantly made out.
As at 1 January 2007 the complainant (variously referred to hereafter as “the complainant” or “X”, with no disrespect to her; all names and locations have been anonymised in these reasons) resided at C St, Smalltown with her parents and siblings having moved to that address some years before. Their house backed on to 1 Canada St Smalltown, where there lived as at 1 January 2007 (and had lived there prior to the complainant’s family moving in to C St), the accused, his partner and their children, and a child of the accused’s wife from an earlier relationship. One of the children of the accused, K, was a year younger than the complainant, and they had become firm friends by this time. This extended to each of the complainant and K sleeping over at the others home. The case for the Crown is that on some of the occasions the complainant slept over at K’s home (that is, at 1 Canada Street) the accused committed a range of sexual offences against the complainant, though it was alleged sexual offending also occurred at times when the complainant walked through the accused’s backyard, which provided a shortcut to her family’s horses, which she watered.
The actual alleged “unlawful sexual acts” (to use the words of count 1 under s66EA) were identified in count 1 itself as being “1. touching his own penis in the presence of [the complainant]. 2. Touching [the complainant] on the vagina. 3. Digital-vaginal sexual intercourse with [the complainant]”. Also pleaded in the indictment were 10 alternative charges. The Crown emphasises a dual role played by these alternative charges. One role is to particularise the offending relied upon to make out count 1. Section 66EA(2) provides an “unlawful sexual relationship” is a relationship in which an adult engages in 2 or more “unlawful sexual acts” with a child, though to establish such a relationship more than the required unlawful sexual acts needs to be proven. The Crown allege that this aspect of the “unlawful sexual relationship” is made out by establishing 2 or more of the 10 alternative counts, with the proviso that in so far as count 1 is concerned, the relevant unlawful sexual act can be made out without the finder of fact being satisfied of the particulars of that act that it would have to be satisfied of when the act was charged as a separate offence; s66EA(5)(b). This is especially relevant in the present case in terms of the date range of the alleged alternate counts (or “instances” so far as s66EA is concerned), for it became clear that some of these instances, if established, may well have occurred outside the asserted date range. If that is the case, it does not prevent such unlawful acts relevantly being an unlawful act capable of making up the element of s66EA in that regard. It would be legitimate for an indictment alleging a count under s66EA to simply set out particulars of the unlawful sexual acts relied upon without alleging alternate charges, in the manner seen in ARS v R [2011] NSWCCA 266, although that case additionally adopted the approach of alternate charges as has been done here. It is important to note, as the Crown made clear, that proof of two unlawful sexual acts, without more, is insufficient to make out count 1. The Crown needs to also establish a relationship, and that it was maintained. The second role of the alternate charges is to be true charges in the alterative, which to be made out need to satisfy the finder of fact of the particulars of the relevant conduct in the manner required for a separate offence.
The “unlawful sexual acts” as pleaded in count 1 have been set out above. Although the particulars of these alleged unlawful sexual acts do not need to be wholly satisfied, it remains necessary for the Crown to establish beyond reasonable doubt that they did occur; that is, for example, if the allegation was of digital vaginal sexual intercourse and the evidence established sexual touching without penetration, then the alleged unlawful sexual act has not been made out, and, in the absence of a relevant allegation of sexual touching, nor has an unlawful sexual act for the purposes of satisfying that part of the s66EA charge (leaving aside possible statutory alternatives).
That this is the correct approach is supported by ARS at [115], and I note particularly the last 3 lines of that par and the cited par (b). What was said there was that it is unnecessary to prove beyond reasonable doubt when the alleged offending occurred, but “it must be proved beyond reasonable doubt that the nature of the alleged foundational act answers the description which is itself stated with reasonable precision in the indictment”. It is for this reason that it is not sufficient for the Crown to prove in the course of the trial some previously non particularised unlawful sexual act, even if it did fall within the 3 categories of conduct pleaded in count 1. Those 3 categories serve to identify the type of conduct being alleged, but they could not be said to state the “foundational acts” with reasonable precision. Notably it is acts of the type described by those categories which make up the alternative counts, and as I understood the Crown case throughout the trial, the alternative counts were intended to have the dual purpose described above, a view which is supported by the discussion in submissions at T683.25 – T685. I make this observation because as noted below at [249] the Crown did ultimately make a submission that some unlawful sexual act, neither particularised nor pleaded as an alternative count, could constitute one of the necessary “unlawful sexual acts” if it fell within the 3 categories pleaded in count 1. For the reasons given here, and at [6], [7] and [249] below, I reject that submission.
Section 66EA has been amended since ARS was decided. Having considered the current section, applicable to this case, my view is that the requirement to prove the “instance” of an unlawful sexual act still extends to proving the unlawful sexual act that has been particularised. The provisions of the current s66EA (4) and (5) impact on the need to allege and prove particulars; they do not impact on the need to prove the type of unlawful sexual act being alleged that needs to be stated with reasonable precision in the indictment.
Counts 2 to 11 inclusive are charges of sexual offending. The date range of these charges does not in each instance match that of count 1. The beginning date of the range is 1 January 2007, and the end date (in respect of counts 10 and 11) is 6 August 2011, the day prior to the complainant’s 13^th birthday but beyond the end date of count 1 of 31 December 2010. The potential significance of this is that if it was found that this conduct did occur, but after 31 December 2010, then that conduct without more would not support the s66EA charge as being part of the two or more unlawful sexual acts required. As it happens nothing turns on this as there was no evidence of counts 10 and 11, but it does demonstrate that whilst s66EA permits latent duplicity (see ARS at [115]), it is not a section free of any requirement of particularity.

Counts 2 to 11

The Crown opened by outlining that the relationship of the accused and the complainant was alleged to be that of neighbour and father of her close friend and that they had regular contact. The unlawful sexual acts relied upon to found the unlawful sexual relationship were said to be exposing himself and indecently and sexually assaulting the complainant. It was said this occurred many times.
The opening given as to counts 2 to 11 was brief, but serves to give some essential character to the matters alleged, and allows a meaningful comparison with the evidence later adduced. The opening in respect of each count was as follows:

Count

Charge

Opening

2

61O(2); aggravated act of indecency < 10

In colder months of 2007: D exposed himself from verandah as complainant walked through property

3

61N(1); act of indecency < 16

2008 when complainant 10: D calls her to verandah re phone and exposes himself

4

66C(1); sexual intercourse bw 10-14

Summer 2008 when complainant 10; Digital vaginal intercourse whilst in K’s bed with K and K asleep

5

61M(1); agg indecent assault (<16)

2008 when complainant 10; D rubs her vagina while she in lounge room with K and other children after birthday party

6

61J(1); agg sexual assault (<16)

Not long after count 5 when complainant 10, after swimming at Bellwood Creek, digital as she lay in K bed; C kicks out

7

61N(1); act of indecency < 16

Weekend day late 2008 or early 2009 D masturbates himself while C plays Nintendo on a double bed

8

61N(1); act of indecency < 16

Soon after count 7 D exposes himself whilst the complainant plays Nintendo with D’s children on the floor

9

66C(1); sexual intercourse bw 10-14

On the same day as count 8 D has digital vaginal intercourse with the complainant while she in a bed on her own in K’s room, awake and D knew she was awake

10

66C(1); sexual intercourse bw 10-14

Late 2010 when complainant aged 12 digital vaginal intercourse in K’s room and exclusive use of that bed and that room for the night

11

66C(1); sexual intercourse bw 10-14

Next morning after count 10 in the same bed D has digital vagina intercourse with complainant again

General Directions

In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.
I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.
The Court has heard the submissions of both the Crown Prosecutor and of Counsel for the accused. The Court will consider those submissions and give to them such weight as it thinks they deserve. The Court notes that in no sense are those submissions evidence in the case.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness’s evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness’s evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
I note that the accused has a right to remain silent when spoken to by police and that the evidence of the officer in charge, DSC Richardson was that the accused exercised this right. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told the accused when he was asked if he wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.
In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the accused’s silence cannot be used against him in any way at all.
The accused in this matter did not give evidence. I remind myself that he has, as we all do, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence.
I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do. In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offences charged or any one of them.
I direct myself, as a matter of law, that the accused’s silence in court cannot be used against him. His silence does not constitute an admission and no such inference can be drawn from that fact. Nor must his silence be used by me to fill gaps in the Crown’s case or to make up for what I might regard as deficiencies or defects in the Crown’s case. I must not speculate about what might have been said in evidence if the accused had given evidence.
This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.
The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge/s.

Sexual Assault Directions

I warn myself pursuant to s294 of the Criminal Procedure Act that the absence of, or delay in complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint.
I warn myself pursuant to s 306ZI regarding the use of CCTV equipment during the trial, and pre recorded evidence (namely the first statement of Y) and played in the Court on this trial before me, that these procedures have been introduced to facilitate the taking of evidence and that I should give no more weight to the evidence given by such means than I would had it been given “live” in open Court and I note that the accused is not to be prejudiced in any way by the use of such procedures. I note a number of witnesses, including the complainant, appeared by AVL, and I give myself a warning to that same effect in respect of that evidence.

In this case there are differences in the accounts given by the complainant of the alleged conduct of the accused. In such circumstances s293A permits me to warn the finder of fact, that is myself, that experience shows people may not remember the details of a sexual offence in the same way each time, that trauma may affect the way people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences, and that it is up to the trier of fact to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.
I note section 294AA, which prohibits the giving of a warning to a finder of fact as to complainants as a class are unreliable witnesses. The approach I must take is to consider the complainant’s evidence for what that evidence is, without heightening or tainting it because of the fact it is the evidence of the complainant.

Factual findings Directions

Inferences

Sometimes in a criminal trial, the evidence relied upon by the Crown to prove its case beyond reasonable doubt is what is called “direct evidence”. Direct evidence is a witness saying that he or she saw the accused do something or heard the accused say something, or it might be an admission by the accused that he did or said something.
Sometimes, however, proof of one or more of the elements of a particular offence and thereby proof of the guilt of an accused person relies upon the drawing of inferences from direct evidence of proven facts.
I may draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it, consciously or otherwise, in our everyday lives.
In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In the present case, the Crown relies upon direct evidence from the complainant and the Crown also relies upon drawing inferences. An example in this case is the issue of whether the accused resided at Canada Street throughout the indictment period, save for a period in late 2008. The Crown asks that inferences be drawn based on bank records, and the observations of neighbours, a work colleague and a school teacher to determine this issue, as well as the direct evidence of the accused’s partner at that time.
I am obliged to act only upon the evidence that is before me in the trial and nothing else. That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence. I must not engage in speculation as to what that absent evidence might have established, if anything.

Failure to call and recall witnesses

The accused seeks a direction addressing that certain witnesses were not called by the Crown. The direction sought is that in respect of these witnesses, I can take the fact that there was no evidence from that witness/es into account when deciding whether the Crown has proved the guilt of the accused. This does not mean I can guess or speculate what each of those witnesses would have said if they had been called, for I must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is reasonable doubt about the accused’s guilt. The witnesses concerned were Pam, Jan, Fiona, DP and DC Ridgeway. It is also argued to relate to Chrissy, the mother of Y, who was not recalled to give evidence in relation to exhibit N, which the Crown later relied on to argue for a date for the complaint made by Y to Chrissy that was different to the evidence of Chrissy.
My view is that it is appropriate to give this direction, and I do so. The basis for this view is that, in relation to Jan and Fiona, they are, on the Crown case, actually present or nearby when some of the alleged offending occurs. That there is no evidence from them is in the circumstances a matter to be added to all the other considerations on the issue of the accused’s guilt. As to Pam, there is no evidence as to what complaint may or may not have been made by X to her, again something which should be taken into consideration. Similarly with DP, in respect of the issue of what Chrissy may have known about X’s complaint and when. As to DC Ridgeway, there is no evidence from him as to why the investigation into X’s complaint was suspended in July 2019. Lastly, I give this direction as to the failure to recall Chrissy, who gave no evidence as to what became exhibit “N” and the time at which Y was at a particular school. That document was only obtained by the Crown after Chrissy had left the witness box, and so that document has not been tested by asking Chrissy about it, and, in line with the above, the position is there is no evidence of Chrissy about it.

Markuleski / multiple counts

There was argument as to this direction also. With respect to the Crown, I cannot see how as a matter of logic this direction should not be given, albeit that it needs to be viewed in the context of a s66EA charge, as set out above.
There are 10 counts in the alternative to count 1. As outlined above, to make good count 1 there needs by definition (section 66EA(2)) two or more unlawful sexual acts engaged in by the accused with or towards the complainant. In this case, the Crown relies on the alternate counts as being the particularised instances of those required unlawful acts (see the reference to submissions at [5] above). The Crown suggests that as there is only one charge under s66EA, then Markuleski is not an appropriate direction. Yet to make out s66EA two or more instances must be made out, and I would add, beyond reasonable doubt, (but as qualified by s66EA(5)) for without them the element of the offence cannot be made out. In my view in considering whether the instances/alternate charges are made out, a Markuleski direction should be given and I note such a direction was given in the matter of O’Toole [2020] NSWDC 423 per Mahony DCJ. Accordingly I direct myself that if I was to find the accused not guilty on any of the alternate charges (or, viewed as part of the s66EA charge, if I was not satisfied beyond a reasonable doubt as to any of those “instances” occurring (but as qualified by s66EA(5))) particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts / instances.
The direction continues that if I find the complainant’s evidence in relation to one or more of the counts lacks cogency or reliability, such that I am not satisfied beyond a reasonable doubt as to that count being made out, then before I could be satisfied as to another of the counts, there would need to be something about the evidence concerning those other counts that makes it different to the earlier count of which I am not satisfied.

Reliability warning

In respect of the complainant I must examine carefully her evidence and determine whether or not she is a reliable witness. That is that she is an honest witness and a witness who is accurate in vital respects. I must examine and evaluate her evidence in light of any criticisms that have been made of it. It is only after such careful scrutiny and evaluation that if I am satisfied, beyond reasonable doubt, that that evidence is reliable, that I could consider verdicts of guilty. This direction follows from the high onus and high standard of proof that is placed upon the Crown. I could not find the accused guilty of the offences unless I am satisfied, beyond reasonable doubt, that the complainant is an honest and reliable witness.
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 logical reason for that outcome.
If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.
In considering the complainants’ evidence and whether it does satisfy me of the accused’s guilt, I should of course look to see if it is supported by other evidence.

Accusatory statements in the presence of the accused

The parties agreed this direction should be given in light of the evidence of Chrissy, who said she confronted the accused by saying “Why the fuck did you touch my daughter” with the accused allegedly replying “I don’t know”.
What one person says to another is not normally relevant evidence. Here the evidence is being led because the Crown asserts that the response by the accused to the statement made to him in his presence is an admission by the accused that what was contained in the statement was true. It would be different had the accused denied the allegation made or had given some innocent explanation to rebut the allegation. The evidence is only relevant if I find that the accused’s response when confronted with the allegation amounted to an admission that it was true.
Take an example away from the facts of the present case. Assume that a man has been the driver of a motor vehicle which has struck a child, causing serious injuries. Assume that the mother of the injured child immediately after the accident approaches the driver and says to his face, “This is your fault you are always driving too fast around this street ignoring the children playing on the road”. If the driver says nothing to that allegation, a jury could find that the failure to respond amounted to a silent acceptance of the truth of what was said because the driver had nothing to say in defence to the allegation made to him.
In that case, the statement made by the mother would not, of itself, be relied upon by the Crown as evidence that what she asserted was true. Before any part of that statement made in the presence of the driver could be used as evidence against him, a jury would have to be satisfied that the statement was made; that the driver heard it; and that he had the opportunity to respond to it but did not respond because he accepted the truth of what was said. There may be an alternative explanation for the driver not responding. It may be that he did not hear what the mother said, or that he heard it but was too upset to respond. Or it could be the case that he treated the allegation of the mother as unworthy of a response.
In the present case, I need to first decide whether I accept that Chrissy made the statement to the accused; whether the accused heard it; and whether he had an opportunity to respond. I also need to decide whether I accept that the accused did not respond or did respond. If I do accept the evidence about each of those things, I then need to consider whether I accept that by his response the accused had acknowledged that what Chrissy had said was, either in whole or in part, true.
It is really a matter for me to apply my common sense and experience of life and what I might expect a person in the position of the accused to do or say when faced with such an allegation, although I should also consider that people do not always act predictably in certain situations. Here I am considering the conduct of the accused, and not the conduct of some hypothetical person his position. I must also consider whether there is an alternative explanation for the accused’s response other than that he accepted the truth of what Chrissy said. In this case it has been put that this alleged conversation did not occur.
If I accept this alternative explanation then this part of the evidence would not advance the Crown case at all and may be put completely to one side. However, if after considering all of the circumstances I have mentioned, I am satisfied that the accused did acknowledge, either in whole or in part, the truth of what Chrissy said, then this is something I can take into account along with all of the other evidence in the case in my assessment of whether the Crown has proved the guilt of the accused beyond reasonable doubt.

Forensic disadvantage

The accused sought a direction as to the forensic disadvantage that may be said to arise due to the time that has passed since the alleged offending. The Crown pointed out s165B of the Evidence Act which provides that significant forensic disadvantage is not established by mere existence of the delay. The accused argued that had the allegations been brought earlier, the recollections of X would have been clearer, and thus more readily able to be checked. The clear example in this case where this applies is in seeking to determine just how often X had a sleep over at Canada Street. The Crown pointed out that a significant number of the witnesses going to the issue of where the accused lived were available, to assert there was no disadvantage there. That of course is a different point to the main one argued by the accused, and in any event, two of the people that the accused says he lived with are now dead, so the Crown’s point only goes so far.
The accused’s main point here was as to the issue of when X slept over. Prima facie, I would accept some disadvantage here, but it has not really been evidenced, and the argument really is little more than saying delay in a different way. For example, if X was able to say definitively when she slept over, there is nothing relied on by the accused to enable him to say that he was elsewhere at that time. The only definitive times of absence where specific dates can be given are the period in rehab and the slightly earlier period in Queensland. So if X was able to say a certain date, there is nothing in the evidence by the accused that suggests he is at a disadvantage now as to then in showing he was not there on that date. For example, there was no submission relying on bills or correspondence. There was however, which tends against the accused argument, other documents that were subpoenaed that did assist him. On balance I decline to give this direction in light of s165B(6).

Complaint evidence

Complaint evidence refers to what the complainant told others of the allegation. In this case, the evidence of this type that the Crown relies upon comes from X herself, of what she told Pam, who did not give evidence, and of what she said she told K, from K, who says she was told something by Pam, but does not remember being told anything by X, from Jack, Susan and X’s parents. The substance of this evidence is set out below.

Complaint Direction

Going to the truth of the facts asserted

It is for me to decide whether the complaints were made and what the contents were.
In determining that question I am entitled to take into account a number of factors including the circumstances in which the complaint was made, the details of the complaint, any inconsistencies between the complaint evidence and the evidence given in court, and any inconsistencies I may find, generally, in the evidence of the complainant.
The law says that a fact finder may use what was said in the complaint as evidence of the truth of what the complainant alleges. Depending upon the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. There may be other matters that can also be taken into account, such as if it be the case, the distressed condition of the complainant. On the other hand, it may be the complaint evidence does not support the allegations due to some deficiency about it, such as being too vague, or some other matter.

Going to credit

Secondly, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends that the fact that the complainants raised the allegation against the accused at the time and in the manner she did would lead me to accept the evidence she gave in the witness box (pre recorded). In other words, it may make her evidence more believable than had she not raised the allegation/s as she did.
Again, it is for me to decide whether the complaints were made. If I think that the complainant has done what you would expect someone in their position to do, that may support the Crown case because I find that there is a consistency between the complainant’s conduct and the allegation/s she makes against the accused.
On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as they described, then that may indicate that the allegation is false or otherwise unreliable. But I bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.
Of course, 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 occasion(s).

Tendency evidence

The accused is charged only with the offences stated in the indictment. I have before me evidence that the Crown relies upon asserted to establish that he committed those offences. However, there is also evidence before me that the Crown relies on to assert that the accused committed “other acts” involving Y.
Those alleged acts are of touching Y on her “boobs” and in the genital region whilst, or soon after, waking her up. This is alleged to have happened in about 2015 when Y was about 8.
The Crown says that evidence reveals that the accused had a sexual interest in young pre-pubescent girls and acted on that interest with Y as set out above, thus making it more likely he committed the offence/s charged in the indictment.
The evidence suggesting that the accused had the asserted tendency can only be used by me, in the way the Crown asks me to use it, if I make two findings. The first finding is that one or more of those acts occurred. In making that finding I do not consider each of the acts in isolation but consider all the evidence and ask myself whether I find that a particular act or acts relied upon actually took place. If I find that none of the acts occurred, then I must put aside any suggestion that the accused had the tendency advanced by the Crown.
In determining whether or not any of the other acts or other matters on the indictment are established for the purpose of tendency evidence, I do not need to be satisfied of it beyond a reasonable doubt. The standard of proof has been expressed as to be “generally satisfied”.
If I do find that one or more of those acts occurred, then I go on to consider whether, from the act or acts that I have found occurred, I can conclude that the accused had the tendency the Crown alleges. If I cannot draw that conclusion, then again I must put aside any suggestion that the accused had the tendency alleged.
So, if having found one or more of the acts attributed to the accused occurred and I also conclude that the accused had the tendency alleged I may use the fact of that tendency, or state of mind, in considering whether the accused committed the offence(s) charged.
I should bear in mind that this is just one part of the evidence relied upon by the Crown. I should give it what weight I think it deserves in the context of all of the evidence before me.

The evidence of other acts must not be used in any other way. It would be completely wrong to reason that, because the accused has committed one crime or more acts of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offence/s charged. I cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charge/s in the indictment. That is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot use it in any way against the accused unless I accept the Crown’s argument that it discloses a tendency and therefore makes it more likely that the accused committed the offence/s charged against him.
Even if I accept that the accused has a tendency as alleged, I need to consider whether or not he acted in the ways as alleged in the indictment.
The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have acted and thought. I must be careful to avoid allowing any emotional response to distract me from a calm and objective assessment of this issue.
I must not substitute the evidence of the other acts led by the Crown to prove that the accused had that tendency for the specific allegations in the indictment. I am concerned with the offending alleged in the charges. If I find that the accused had the tendency or state of mind alleged by the Crown it may indicate that the particular allegations are true, but I must remember I am required to find that each specific charge is proved beyond reasonable doubt before I can find the accused guilty of that charge.

The elements of the offences

Before an innocent person can be found guilty of an offence the Crown must prove each element of the offence beyond reasonable doubt. The essential elements or ingredients that the Crown must prove beyond reasonable doubt are set out below. The failure to prove any element beyond reasonable doubt would mean that the accused is not guilty of that offence.

Count 1: s66EA(1)

The elements of count 1, the charge under s66EA are as follows (taken from [5] of O’Toole):

That the accused being an adult;

Maintained an unlawful sexual relationship with X;

Who was a child.

An adult is a person of or above the age of 18 and a child is a person under the age of 16.
“A relationship” is a way of describing the nature of the connection between two or more people. Here, it is whether there was a relationship between the accused and the complainant. In determining whether the relationship was an unlawful sexual relationship, the Court must also be satisfied beyond reasonable doubt that the accused committed two or more unlawful sexual acts with or toward the complainant during the period identified in the Indictment. Section 66EA (4) and (5) should be noted.
“Maintained” has its ordinary everyday meaning. That is, carried on, kept up or continued.

Counts 3, 7 and 8: act of indecency under 61N(1)

Each of these counts is an allegation that the accused committed an act of indecency towards X, at a time she was under the age of 16.
The Crown must prove, in respect of each of these counts, the following elements beyond reasonable doubt:

That between [the dates as per the indictment], at [Smalltown] in the State of New South Wales:

The accused committed an act of indecency;

Towards X;

That X was under the age of 16 at the relevant time.

“Act of Indecency”: an act which right-minded persons would consider to be contrary to community standards of decency.

Count: 3 The alleged act is that the accused exposed his penis to X

Count: 7: The alleged act is that the accused masturbated in view of X.

Count 8: The alleged act is that the accused exposed his penis to X.

I note that by s77 Crimes Act a lack of consent is not an element of this offence.

Alternative verdicts to counts 3, 7 and 8

By section 344A, any person who attempts to commit any offence for which a penalty is provided under the Act shall be liable to that penalty.
The next count is count 5.

Count 5: aggravated indecent assault under s61M(1)

The Crown must prove, in respect of a count of aggravated indecent assault, the following elements beyond reasonable doubt:

That [DATE as per indictment], in [Smallville] in the State of New South Wales:

The accused did assault X; and

At the time of that assault, the accused did commit an act of indecency on X; and

The assault occurred in circumstances of aggravation, namely that at the time of the assault X was under the authority of the accused; and

I note by s80AE that consent is no defence to this charge under s61M(1), so that lack of consent is not an element of this offence.

“Assault”: an assault is the deliberate and unlawful touching of another person. In this count the allegation is that the assault and the act of indecency are the same act.

“Act of Indecency”: an act which right-minded persons would consider to be contrary to community standards of decency.

The alleged act is that the accused deliberately and unlawfully rubbed X’s vagina with his hand on the inside of her pants, skin on skin.

Alternative verdict to count 5

By section 61Q an alternative verdict is available of an offence under sections 61L, indecent assault. Further by section 344A, any person who attempts to commit any offence for which a penalty is provided under the Act shall be liable to that penalty. The alternative verdict of “attempt” is available to either section 61M or 61L.
Next is count 6.

Count 6: aggravated sexual intercourse without consent; s61J(1)

The Crown must prove the following elements beyond reasonable doubt:

That on [DATE as per indictment], in [Smalltown] in the State of New South Wales, the accused:

Had sexual intercourse with X;
In a circumstance of aggravation, namely that X was under the age of 16; and
Without X’s consent; and
Knowing that the second complainant did not consent.

“Sexual intercourse”: Relevantly to this case, sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person. Sexual intercourse includes sexual connection occasioned by the penetration by a finger of a female’s vagina, which is what the Crown alleges, and the accused denies, occurred in this case.

“Consent”: The accused does not have to prove that the complainant consented; it is for the Crown to prove beyond reasonable doubt that she did not.

A person consents to sexual intercourse if they freely and voluntarily agree to have sexual intercourse with another person.

Consent can be given verbally or expressed by actions.

Absence of consent does not have to be in words; it also may be communicated in other ways, such as the offering of resistance.

However, the offering of resistance is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.

If the Crown fails to prove that the complainant was not consenting, the accused is not guilty of this charge.

If I am satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainant, and also that she did not consent, then I must go on to consider the third element: knowledge.

“Knowledge”: The Crown must also prove beyond reasonable doubt that the state of mind of the accused at the time of the alleged sexual intercourse was that he knew that the complainant did not consent to sexual intercourse.

The accused can know the complainant does not consent because of what the complainant says or does at the time of, or prior to, intercourse.

To prove that the accused knew that the complainant did not consent to sexual intercourse the Crown must prove one of three things:

That the accused did not honestly believe that the complainant was consenting, or
That he was reckless as to whether the complaint consented, or
That, if he did have an honest belief the complainant was consenting, he had no reasonable grounds for that belief.

“Recklessness”: To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either:

a. That the accused’s state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse, or

b. The accused’s state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not.

But in considering what the accused did in this regard I cannot take into account the fact that he was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol.

“Reasonable Grounds”: if I am not satisfied that the accused actually knew the complainant was not consenting I should consider whether the accused might have believed, wrongly, that the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. The Crown must prove one of two facts before I can find the accused guilty.

Either:

that the accused did not honestly believe that the complainant was consenting; or
that, if he did have an honest belief the complainant was consenting, that he had no reasonable grounds for that belief.

It is the accused’s actual state of mind which I am concerned with, not what I may have realised, thought or believed in the circumstances nor what a reasonable person would have realised, thought or believed.

In considering whether or not the Crown has proved that the accused knew that the complainant was not consenting or that he was reckless about it or that he did not have an honest belief that she was consenting or, if he did, he had no reasonable grounds for that belief, I must consider all of the circumstances of the case, including any steps he took to work out if the complainant was consenting, including what consideration he gave to the complainant’s actions as he saw, heard and perceived them.

But, I must not have regard to any self-induced intoxication of the accused.

If the Crown has established each element beyond reasonable doubt then the verdict would be guilty.

If I am not satisfied beyond reasonable doubt of any one of these elements then you would find the accused not guilty of the count on the indictment.

Alternative verdict for count 6

By section 80AB (and formerly s61Q) a person may be convicted in the alternative under section 61I where the act of aggravation is not made out. Further by section 344A, any person who attempts to commit any offence for which a penalty is provided under the Act shall be liable to that penalty. The alternative verdict of “attempt” is available to either section 61J or 61I.
Next is count 9.

Count 9: sexual intercourse with a person above the age of 10 and under the age of 14; section 66C(1)

The Crown must prove the following elements beyond reasonable doubt:

That on [DATE as per the indictment], in Smalltown in the State of New South Wales, the accused:

Had sexual intercourse with X;

At that time, X was of or above the age of 10 and under the age of 14.

I note by s77 a lack of consent is not an element of this offence.

Alternative verdict re s66C

By s66D any person who attempts to have sexual intercourse with a child between 10 and 16, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence.

The evidence

Generally

As is often the case with allegations of sexual assault, the only direct evidence of the actual offending conduct at trial is the evidence of the complainant. Commonly this is due to this style of offending occurring when the only people present are the accused and the complainant. That is not the situation in respect of all the counts on the present indictment. The offending alleged in respect of counts 7, 8 and 9 is alleged to have occurred when others were present and awake, albeit for count 9 Fiona was out of the room at the alleged crucial moment. The offending alleged in respect of counts 6 and 5 is said to have occurred when another person was present, albeit asleep.
In this case X was aged between 8 and 12 in the time range of the indictment, and was aged 22 at the time she gave her evidence, and 20 at the time of her first statement to police. There was evidence from X that she had made remarks separately to both K and X’s friend Pam at the time of some of the alleged offending, albeit not in very specific terms (see below). Beyond those few remarks, there is no evidence X said anything to anybody prior to June of 2018, when she spoke to a man named Jack.
I remind myself of the directions made above in relation to sexual assault allegations and in particular that a lack of corroboration or a delay in complaint does not of itself form a basis to doubt what is being stated by a complainant.
In addition to the evidence of X, the Crown relied on photographs (exhibits B and C) to demonstrate some aspects of the house and backyard of 1 Canada Street, and to evidence the time at which X was spending time with the children of 1 Canada Street. Some of the photos also went to showing the accused with his family, which is relied on to counter the case put by the accused that in the period of the alleged offending he was largely absent from the family home, “the availability argument”. In addition to this the Crown relied on complaint evidence and tendency evidence, which I consider below.
A significant amount of time in the trial was spent addressing whether the accused was available at 1 Canada Street to have been able to offend in the manner alleged. The case being put by the accused was that from late 2007, if not earlier, he spent decreasing time at 1 Canada Street. This was supported by an AVO document which records his former partner (“Susan”) saying they separated in December 2007. That AVO was made in February 2008, and part of that order prohibited the accused from residing at 1 Canada Street. This is significant because according to the opening, counts 3 and 5 occurred in 2008 when X was 10, (and count 6 “soon after” count 5) so that it was from 7 August 2008 (X’s birthday). The accused was in rehab from 22 July to 25 November 2008, and it is likely that on release he initially, for some unclear period of time, stayed with his brother at New Town. Even allowing for that period to be as short as a week, the result is that based on the opening the date range for counts 3 and 5 (and probably count 6) shrinks from 5 months to 1 month, December 2008. There was no evidence linking any of the offending to Christmas, or of them all occurring at the same time, albeit possibly “soon after”. The same problem for the Crown exists with counts 7, 8 and 9 as these were said to have occurred in late 2008 or early 2009.
The significance of this is that, by the opening, what was meant to be offending occurring over a 4 year period as part of a relationship that needs to be proven, and proven also to have been maintained, is in fact one where the six counts for which there was evidence occur in late 2008 and early 2009 period, which happens to be the period of time where the evidence is strongest that the accused was less frequently at Canada Street, to the point that for all but December 2008 it is really not in dispute that he was not there in the relevant part of 2008.
Evidence from the Crown as to this issue came from a neighbour, KA, X’s parents (also neighbours), Susan, a work colleague, a relative and a school teacher. The Crown also put forward a documentary case based on bank records showing activity on the accused’s card occurring in Smalltown at relevant times. The evidence of the accused’s former partner, Susan, included an assertion that the accused provided Centrelink with addresses different to 1 Canada Street so that they could, according to her, receive separate benefits. Documents were tendered from the RMS, Centrelink, and Medicare showing addresses different to 1 Canada Street. Police records showed the accused’s address variously as 1 Canada Street or at one of the other addresses the accused maintained was his residence at different times.
The prospect that there was some fraud of Centrelink occurring is in my view a real one, based on Susan’s evidence. Yet I note that the RMS records show a change of address to the accused’s brother’s address in Smalltown on 12 December 2008, shortly after the accused left rehab, which is in some way consistent with Susan’s evidence of the accused being there for a short time after rehab, and would suggest it lasted beyond the first week. On this evidence there is a real prospect the accused was not at Canada Street at the time of the offending alleged by counts 3 and 5, and possibly 6, and also that it would have the same effect on counts 7, 8 and 9 to the extent they are alleged to have occurred in 2008.
In considering the evidence it assists to set out the variations in dates across the evidence, the opening, the indictment and so far as it was evidenced, the statements of X. This is shown in the following table:

*Count*	*Indictment*	*Opening*	*Evidence*	*Statement*
3	1 January 2008 to 6 August 2009	A day in 2008 when X is 10	1 September 2004 (or maybe Jan 2005) to December 2010; see [104] below	T104; when 10 in 2008 “a bit estimated”
When X 8, so before 7 August 2007; see [110] below
5	1 January 2008 to 1 January 2009	2008 when X is 10	About 11; T57, so Aug 2009-2010; could also be 10, Aug 2008-2009 also
6	1 January 2008 to 6 August 2009	Not long after count 5, when X is 10	Maybe 10; so Aug 2008- Aug 2009	2008; T138
7	1 July 2008 to 1 July 2009	Late 2008 to early 2009	1 September 2004 to December 2010;	Late 2008 / early 2009
8	7 August 2008 to 1 July 2009	Soon after count 7	(inferentially as for count 9)
9	7 August 2008 to 1 July 2009	Same day as count 8	Year 3 or 4, so 2007 or 2008; though in XX she adhered to statement	Late 2008 or early 2009

Count 1.

As discussed in the introduction, the evidence to support the necessary “unlawful sexual acts” to make count 1 is the evidence going to the alternative counts, though for the purposes of count 1 those matters are more properly considered “instances”. They are instances of alleged unlawful sexual acts, two of which must be established to make out count 1, though without the need to be particularised as discussed above. This aspect of count 1 will therefore be considered below with the other counts. But there is more to count 1 than establishing 2 unlawful sexual acts. There needs to be established the fact of a relationship and the maintenance of that relationship. The nature of the relationship was said to be that of neighbour and father of a close friend, K. There was very little evidence going to this issue; rather, it appears the Crown relies on the Court drawing an inference of such a relationship by reason of the fact that the accused is indeed the father of K, and was at times a neighbour, and on X’s evidence of habitual abuse, which I refer to below. My view is the section would clearly catch such a relationship, if established. Yet the degree of absence of the accused from 1 Canada Street, if established, leaves open the possibility of the element of relationship not being established, and that at the highest for the Crown, what this case is about is of one or more sexual offences occurring at different times. I will consider this aspect further as needs be subject to the findings on the other counts.

Counts 2, 4, 10 and 11

As set out in the introduction to these reasons count 2 was alleged to be an offence of indecent assault by way of the accused exposing his penis to X as she walked across the backyard. This was said to happen many times. But X was able to give an account of it occurring on only one occasion, set out below in respect of count 3. There was no evidence of count 2.
Counts 4, 10 and 11 are each counts of sexual intercourse in contravention of s66C(1). With counts 6 and 9, they make up 5 counts alleging sexual intercourse.
The significance of X giving no evidence on 4 charges out of 10 has a potential impact beyond the fact that they cannot constitute instances to be relied on for count 1, nor of being able to be made out as alternative charges. Given that 3 of them were charges of the most serious kind of offending being alleged in this case, it raises real concerns about the reliability of X, even if she largely appeared to be a measured and honest witness when giving evidence. It raises the prospect that perhaps her allegations have been partly born of the influence, no matter how well meaning, of others, or of her memory, for no sinister reason, conflating and distorting events. Perhaps, as X’s mother said X had said to her, it was simply a case that the accused stared at her and “creeped her out”. In my view, that X was unable give any evidence on 3 of the charges of sexual intercourse gives me, in all the circumstances of this case, significant reason to pause before accepting her other evidence as reliable.

Count 3

X began her evidence in chief perhaps somewhat inauspiciously. At T24 she was asked that she was here to tell the Court some things that happened between herself and K’s father over a period of time to which she said yes. She was then asked “How did that start”. That is a four word question referring to things that allegedly happened between her and K’s father which she had just readily agreed she was here to tell the Court about. Yet her response to that simple question was “Could you maybe rephrase that for me”. When asked what was the first thing she remembered happening between herself and the accused she said “him showing me his private areas” and then said “he would show me his penis and touch it. Sometimes when I was at the house or sometimes passing through the yard”. When asked to give specific examples of this she said:
A. Yes, there was the morning that I was going to do my horses water, and I was walking through the yard and he called me over to his veranda, where he was sitting, and he called me over to look at a phone of his, and when he passed it down to me he pulled his penis out the side of his shorts, 'cause he was above me, and he played with it and making it very known that it was there
She went on to say that she saw him hold his penis and play with it making it visible to her out the side of his shorts. When asked what time of day it was she said it was probably morning before school. She was not sure if it was a weekday or a weekend, despite having just said it was probably before school. She was not sure what time of year it was. When asked how old she was or what school year she was in she said “I believe it was at school I’m not sure on the age” and then when asked which school primary or high school said primary school.
We know from Exhibit A that X finished primary school in year 6 in 2010. The evidence at T92 was that X started primary school in kindergarten at St Mary’s School on 1 September 2004. Accordingly the time in which this event is alleged by X’s evidence to have occurred is anywhere between those two dates of 1 September 2004 (or January 2005 if year 1 is considered the start of primary school) and the end of the school year in 2010, so December. The indictment pleads that this event occurred between 1 January 2008 and 6 August 2009. On this evidence it is very possible that the event the subject of the evidence occurred either before or after the time alleged by the indictment.
X did give evidence of the state of the veranda rail as consisting of only a top rail and a middle rail and of not having vertical palings. Part of exhibit B showed the veranda with vertical palings in 2019. In exhibit C, photo 5 showed the railing as only with a top and middle rail, and with K in the photo aged according to her mother (Susan) about 7 or 8. This would age X as about 8 or 9. Just when the vertical palings were installed is not clear on the evidence. Susan said they were installed about 10 years ago, so about 2010, and when X was aged about 12. I consider the evidence of the state of the railing as supporting the evidence of X in respect of count 3.
At T27 X described how she was called over towards the verandah by the accused who asked her to look at his phone because it was broken and whilst she did so he kept “like, playing with his penis in his pants and saying my name so when I look up I would be able to see, I’d see his penis hanging out of his pants and when I gave the phone back he continued to, like, keep his hand there and make it visible”.
When asked when in relation to giving her the phone did the accused start touching his penis she said that as he was handing it to her he had his hand on it and it “sort of didn’t didn’t remove it until I gave the phone back”. A few questions later at T28 she said that he started to touch his penis just afterwards when he stood up. Prior to that when asked whether he did anything regarding his penis when he crouched down to give her the phone she said she could not remember.
My impression when hearing this evidence was that the complainant had a memory or was sincerely stating to the court what she believes to be a memory, of an occasion the essential parts of which were being called over by the accused to the backyard veranda as she walked to her horses and of her then noticing the accused’s penis and with his hand down his shorts. She said these shorts were blue football shorts. She said they were loose fitting and went halfway down his thigh with a drawstring and that he touched his penis down the waistband and saw the penis because she was below him looking up.
The account of the complainant in the paragraph before last is capable of three different interpretations as to when the accused touched his penis. It was either from the very beginning of the interaction, after the accused stood up having given X the phone or at a time X doesn’t remember. The account details referred to in the immediately above paragraph allow for an interpretation of an adult male early in the morning wearing football shorts and thoughtlessly scratching himself. Whilst this may not be considered terribly likely by some, I consider it far from a fanciful scenario, and certainly possible. It goes without saying that the presumption of innocence applies and the factfinders mind must be kept open.
In cross examination it was put to X that she did not have horses when she was 7 to which she said that she had always had horses since she was very young. This adds to the prospect of this matter falling outside the timeframe in the indictment. When asked how old she thought she was she said maybe 8 which would include the period ending 6 August 2007 and again outside the indictment timeframe which commences 1 January 2008.
Three significant matters arose in cross examination. The first was that in addition to estimating her age as 8 as noted above she agreed that she in fact told police this event happened in 2008 when she was 10 years old, which explains the indictment. She said in this regard she was not certain and that what she said in a statement was “a bit estimated”. When she was asked whether that is what she told the policeman, that it happened in 2008 she said “No. We pieced together some information and memories that I had and that was our rough year, estimate”. She then frankly conceded that it may have happened earlier in 2007.
To my mind this puts an end to this count as an alternative count but not necessarily as an instance of sexual offending for the purposes of section 66EA. I find it also disturbing that it seems so plainly to have been a joint effort of reconstruction. This is not gratuitous criticism, for the compiling of statements of complainants concerning alleged sexual abuse must be very difficult, but that should not become a hybrid reconstruction of police suggestion and incomplete memory. The prospect of injustice arising as a result is plain.
Next it became apparent that X told the police the accused’s hand reached up his shorts from the bottom of the leg to grab his penis as opposed to descending from his waistband as she had said in chief, a version she never gave in the statement. Later at T106 X said that he had changed positions by the time she gave the phone back and his hand was then up inside the shorts instead of down through the waistband. Whilst I generally considered X to be frank I found this answer tending towards the creative in explaining her inconsistencies.
Lastly from cross examination X offered that “it was sort of very normal for him to have his hand down his pants”. This suggests some kind of habit for the accused to have his hand in his shorts. To my mind that kind of behaviour is consistent with the possibility of the accused simply scratching or adjusting himself and the memory with the passing of the years has become something quite different.
Limiting myself to the evidence in chief I had concerns about the ability of the evidence to establish count 3. The additional matters that arose in cross examination add to those concerns. I will consider all of the evidence before reaching any final conclusion on this and the other counts.

Count 7

Having given evidence as to count 3 X was asked if she could tell the Court about any other occasion that she saw the accused’s penis. The evidence that followed is agreed to go to count 7. X said there was an occasion when she was lying on a bed with Fiona both on their stomachs playing the DS game console. Fiona went to the bathroom and the accused then entered the room, stood in front of X, put his hands down his pants and made his penis visible “and I suppose you could say masturbated himself in front of me”. When asked to describe this again X said at T30:
Well he stood in front of me and I didn’t look up at this point but his hands went down his pants and he said my name a few times to look up and he was making his penis visible and stroking it back and forth saying my name, wanting me to like look up at it and when I looked up, like I seen what I seen and I looked back down and he’d say my name again to look up and he just stood there stroking it and just making it visible for the duration that his daughter was out of the room.
X said the accused put his hands down and sort of slid it out the side so it was visible meaning the bottom of the leg on the shorts. She said he was just moving them back and forward stroking them, which she then clarified to be “it” which she clarified to mean stroking his penis. When Fiona returned he “pretty much just took his hand straight out and turned around and was like it never happened”.
As with count 3 there was a difficulty in dating this event. X did not know what school year she was in save that it was primary school. She did not remember what year it occurred. She did not remember how old she was when it occurred. She did not remember what day of the week it was. She did not know if it was a weekday or a weekend.
As with count 3 this thus allows for the possibility of this event occurring at some point between 1 September 2004 when X commenced primary school (or January 2005) and December 2010 when she finished primary school. This evidence gives no indication as to whether this event occurred before or after count 3.
In cross examination this vagueness with dates was confirmed and the witness was then taken to her statement where she said it occurred on a weekend day in late 2008 or early 2009. She confirmed she thought it was a weekend because she did not spend much time there during school days. She was then asked that if when she told the police the date was late 2008 or early 2009 was that a guess and she said “yes I guessed what age I would have been considering they just got the DS consoles and they had only come out sort of the year before so it made sense to me”. This was the extent of the cross examination.
The description of this event by X I find believable, a view assisted my general overall view (though with some significant exceptions) of X as a witness. Whether this instance has been made out will turn on the additional considerations discussed below under the headings “Conclusions” and “Matters to be considered”.

Count 8

In X’s evidence in chief immediately after her evidence of count 7 she was asked whether there were any other occasions she could remember when she saw K’s father’s penis and she said yes and gave the following evidence:
A. There was an occasion where we were all sitting in one of his daughter’s rooms. We were all sort of sitting in a circle type of manner all playing DS consoles and it was me and one of his daughters and [the accused] was in the room and I think [Len] the youngest brother was in the room. We were all sitting in a circle, we were cross legged but [the accused] had, sort of had one leg outstretched and I was sitting sort of opposite to him and he would tap my leg with his foot, with his outstretched leg to get my attention and as I’d look in his direction he was in a position that he could like have his penis visible out of the bottom of his shorts but in a way that no one else could see it but me.
X continued to describe the shorts the accused was wearing as being football shorts and the same sort of loose style drawstring football shorts. She confirmed that she could see his penis. She said he would tap her leg with his foot and when she looked to him he would grab his penis but did nothing else with it. Initially she said he grabbed “it”, his penis, a few times, but then when asked directly in chief whether it was one touch or more, said “I think I remember him touching it once at the same time he was sort of touching – like, tapping my leg…”. She said he moved his mouth, and then his head like up and down. This was interpreted by her as meaning for her to look at his penis (and it was not suggested by the Crown to indicate some other act of indecency); see T34. She said when this was happening the two other children did not take their heads off the game they were playing. She could not say whether the accused was wearing underwear or not.
Like with count 7, I found this evidence of X in chief to be plausible. The reservation I have is that the evidence favours an interpretation of the accused only touching his penis once, and not a repeated stroking or touching. Being limited to once allows for a greater possibility that the incident was an innocent one.
In cross examination X agreed that she was mistaken to say that Len was present on this occasion. Further she stated she believed it was Fiona who was in the room whereas in chief she did not name who that other person was. Further again she agreed that in her statement she had said that it was Fiona and Jan in the room. Thus the versions have gone from Fiona and Jan, (per the statement), a daughter and Len, (evidence in chief) to Fiona and one other person of whom she is unsure.
It was then put to X that the accused exposing himself as she described would have been obvious to other people in the room which was agreed was the room shown by photo 11 in exhibit B although the furniture was different. X rejected this suggestion.
X was then asked to describe what the accused did with his penis and she described it as putting his hand up the inside leg of his shorts and then with slight movements his hand was going up and down the shaft of his penis. It was again put that this would be obvious and X said the others would not have noticed because their heads were in the game.
In my view the mixup in who was actually present does not in all the circumstances fatally damage the acceptability of the complainant's evidence on this charge, though it does raise a concern of X possibly presenting an amalgam of different occasions. The photograph of the room shows it to be, in my view, of large enough dimensions for some surreptitious conduct of the type described to occur. More concerning is that the evidence in chief was of one touch of the penis, which became in cross examination up and down movements suggestive of masturbation.

Count 9

When X was asked how count 8 had ended she said she was not really sure and went on to say that later that night the accused came back into that same room. At T35 X says firstly that “we were all back in that room” then says that it was just herself and Fiona in the one sentence. She described the room as one of the girl’s bedroom and as being the first bedroom as you walk in the front door to the left. She said she and Fiona were laying on one of the top bunks when the accused entered the room. X was closest to the wall. Both she and Fiona were facing the same direction and Fiona was playing a game on her DS and X was watching her play. They were both on their stomachs. She could not remember if she stayed the night on this occasion. As with counts 3 and 7 and I would infer count 8 given this event (count 9) allegedly follows on the same evening as count 8, X could not remember how old she was when this happened but said it was in primary school. Unlike counts 3 and 7 she was able to say it was probably in year 3 or 4 in terms of the school year, which in accordance with exhibit A would mean 2007 or 2008.
X then described that as the accused spoke to her and Fiona the lights were off and he stood on the side of the bunk closest to Fiona but put his hand across her and put his hand on her legs, that is X’s legs, and pushed his hand up towards the inner side of her thighs. Soon after X gave this evidence starting at T37:

Q. What happened then after you say his hands went up to the inner sides of your thigh?

A. He pushed his hands on the inside of my pants and pushed my underwear to the side and proceeded to put his fingers in my vagina and rub it and touch it and occasionally he tried to put his finger inside of me just while I was laying there next to his daughter.

Q. I didn’t quite catch what you said, what did you say about [the accused’s]’ finger and the inside of your vagina?

A. He tried to push one of his fingers inside of my vagina.

Q. Are you speaking about on this occasion that you’re describing when you’re lying on the top bunk bed?

A. Yes.

Q. Did he succeed in getting a finger into--

A. No, no. I sort of tried to tense my legs and move them a little bit.

X said while this was occurring Fiona continued to play her game. X said it was “sort of the first time that he touched me while I was awake”. X said Fiona shut the DS lid and the accused then moved his hand away and there was no further physical interaction. X said that his hand was under her underwear which he pushed aside.
Again I find this description credible on first consideration. As with all the counts I reserve my final determination to having considered the issues and the “Conclusions” and “Matters to be considered” set out below and also of course in light of the cross examination to be considered next. Immediately however there is a difficulty in this evidence in chief because this evidence just recounted plainly at best evidences an attempt at digital intercourse for the complainant expressly rejects the suggestion of the finger of the accused entering her vagina.
The Crown submits that this is impacted by some later evidence of the complainant in chief. That evidence came at the conclusion of her evidence concerning count 6. In describing what she felt on the occasion of the alleged count 6, X was asked when she had felt that before and she answered at T45 “on another on the other occasion where he’d he’d put his finger in my vagina before”. This was said to be a reference to count 9. I do not consider that to be quite so clear and certainly it was not evidence given in express reference to count 9.

KA gave evidence, which I accept, the effect of which was that in 2011 the accused worked in her garden and that it seemed to her that he was living at 1 Canada Street, which was the house next to hers. She had moved to that address in 2005. She based this on seeing him regularly, and she also said she occasionally noticed the accused was absent for a few weeks at a time. In cross examination she agreed she did not know that the accused lived next door, that it was not something anyone told her, it was her impression. She did not know if he spent some nights a week elsewhere. She was unaware of his time at rehab but was aware there were times he was not around. She gave evidence of an occasion of hearing Susan crying and people coming to support her, after which she did not see the accused at the house, so she concluded that was the time of their separation and which she said was after the gardening, so after 2011. She agreed she did not know the accused and his family well, and all she could say was that she saw him a lot up to 2011 and could not actually say if he was living there or not.
KK was a school teacher at the local school where the accused’s children went. She saw the accused working on a building job there in about 2009, 2010. She never met the accused. Through KK the school registration of K (exhibit 2) as starting in year 3 in 2008 was established. This meant that the change of schools occurred at that time.
RG was a site manager of a construction company which did work on schools. The accused worked on these jobs as a labourer for about 9-10 months in the period 2009-2010. His evidence was that the accused worked mainly on a language centre and not the gym, which had been completed earlier. He said on two occasions he dropped the accused off at the Canada Street house. He saw Susan bring the kids lunch on occasion and also for the accused once, which in cross examination became “a couple of occasions”; he was not 100% but pretty certain. He said it was possible he gave the accused a lift to New Town but never to the address of the accused’s brother. He never picked him up from “home”; if he gave the accused a lift to work they may have met at Old Town.
The net effect of these various witnesses is opaqueness. None of them have a direct basis for being able to say where the accused lived. The bank records relied on by the Crown show that in the period in question virtually all the cash withdrawals were from ATMs in Smalltown. That too is to at least some degree inconclusive. The alternate places the accused may have lived included places in Smalltown. To add another layer of grey, other documents from Centrelink and the RMS showed the accused did change his address, albeit according to Susan, falsely with respect to Centrelink. Further still, in the AVO documents, completed on the information given by Susan, it is recorded that the accused and Susan separated in February 2007, and also includes an address other than Canada Street (see exhibit 3 re incident of March 2008) and includes an order that he not reside at Canada Street from February 2008.
The conclusion I come to is that certainly by late 2007 all was not well in the relationship of Susan and the accused, based on Susan’s own history of the separation. I do not find that was a final separation. The comings and goings of the accused from 2008 to at least 2011 when he was working next door on the garden, persuade me that at the least he was a reasonably regular attendee of Canada Street, though query in what capacity, that is, as a frequent visitor or as a resident who was often absent. Numerous witnesses described Susan and the accused as good parents or otherwise spoke well of them (X’s parents, KK, KA) and I have no reason not to think that in the main the accused and Susan did their best for the children in circumstances that at least at some times were strained. It seems likely to me there were occasions when the accused was out west for a week or so, or stayed with his brother (RR’s evidence allows for this at New Town), or at some other of the various locations mentioned.
I therefore find on this “availability argument” that whilst throughout the period of the indictment the accused spent significant time at the Canada Street address, he was also regularly absent from that address. Such absences on the evidence could stretch for weeks, eg when he was in Queensland and when he was off working at times. In particular, and it is not in dispute, he was not at Canada Street for the period 22 July to December 2008. In light of the cross examination, and the AVO between the parties, I consider that the absences were more frequent than Susan’s evidence would suggest, though I do accept that the AVO was probably honoured in the breach.
This finding and the finding as to the frequency of the sleep overs means I have found there is quite a different factual background to this case than was contended for by the Crown. The Crown has not established the circumstances contended for as to count 1, though that in and of itself is not fatal to the Crown case. It is however a relevant factor to take into account, and I do, in my assessment of the evidence overall.

Concoction

I do not accept the accused’s argument as to concoction, at least not so far as it would affect the complaints of X, but the basis for this argument is understandable. The concoction theory involved two streams with each stream having as its fountainhead an ex-partner of the accused. In terms of the complaint of X, Susan made a complaint to police when on the evidence she did not know what happened (though exhibit G is more in line with the ultimate complaint, and was based on her report; just how she gained that information between seeing X and going to the police was not explored by either side). The sequence for “word” of the complaint to get to Susan was: X mentions to Jack that she was abused with no detail; Jack does not tell Susan’s new partner, but asks about the accused; Susan at about the same time hears something from KG, the source of which is unknown, and X gives no real detail to Susan, and it is with that state of knowledge Susan attends the police on 11 June.
The other stream has Chrissy at its head. S, Susan’s brother, tells DP, Chrissy’s new partner, about the complaint of X. DP I infer tells Chrissy, despite her denials. S must know very little, given the state of Susan’s knowledge. Chrissy then tells Y that the accused is a bad man who touched a girl in Smalltown.
Ultimately, none of this much matters; it may have been of more impact had the complaint of Y been tried. So far as it impacts on the complaints of X, I am satisfied that there was no concoction on the part of Susan. Just why she would go to the police when she considered X was not yet ready to go to the police remains a question, but not one that I consider negatively impacts on her. I formed a favourable view of Susan, who appeared to be sincerely concerned for X.

Police reconstruction

I commented on this at [112] above. I consider this a significant matter for the reasons there stated and it is something that I take into account.

No evidence of counts 2, 4, 10 and 11.

There was simply no evidence of counts 2, 4 and 10 and 11.
I find this concerning. The offending was presented as being ongoing. It was described as escalating in frequency and in kind; T1. It was said to have occurred many times; T2. According to the indictment, it occurred in the period 1 January 2007, through to 6 August 2011, or 31 December 2010 if only count 1 is considered. Yet X was able only to recount 6 instances of alleged sexual offending, and in a manner inconsistent with the presentation of the Crown’s case. By that I am referring to the fact that the Crown opened its case in a manner clearly suggesting the counts of the indictment, although of overlapping dates, were sequential. For example, count 6 was said to occur not long after count 5, and count 8 was said to occur soon after count 7. This is consistent with the Crown opening that the offending was escalating, as the last three counts on the indictment were of sexual intercourse. Yet the order of the offending as per the evidence is counts 3, 8, 9, 6, 5 and 7, though 7 in evidence was said to occur in primary school, which was established for X as being from 1 September 2004 to December 2010, and therefore could appear anywhere in this order. Like the evidence concerning the frequency of sleep overs and the presence of the accused, the evidence came out much differently than expected and in a way that causes doubt.

The last time

As noted above, the relationship that was opened on as extending for 4 years may in fact have been 9 months, for in respect of conduct alleged to have occurred over four years, there is only evidence of any particularity at all for this much shorter period. That is sufficient to make out the charge, but plainly has an impact in considering the evidence overall.

Timing

As shown by the table above at [97], the evidence was of the alleged offending occurring as follows:

Count 3: 3 possibilities of varying degrees of particularity were offered; 1. whilst in primary school; 2. When X was 8, so 2006-2007; and 3. As per X’s statement where she said in late 2008. I have discussed the six year span above. The estimate of being 8 was new in the evidence in chief. The third option of late 2008 is on one view the most considered answer, as it was given in her police statement, and compiled in consultation with the police, which in itself has problems identified above, but is also what perhaps was the most thought about answer. Yet in late 2008 (in 2008 when X 10), we know the accused was at rehab from July to 25 November, and most likely spent the first week or so thereafter with his brother at New Town. The 4 month period of possibility becomes a one month opportunity. There is a lesser period for the alleged offending to have happened as when X says it did.

In terms of count 5, the evidence was variable but included that it could be 2007, 2008 or 2009. The timing problem here does not go so far as to prevent the alleged offending to have occurred at all, but the case is less persuasive.

Counts 7, 8 and 9 are all alleged to have occurred (at least on one view of the evidence) in the late 2008 early 2009 period. This is the period where the accused was most evidently not at Canada Street for a large period, it being the period of rehab and then at his brother’s albeit briefly.

Of course, it is this difficulty with particularity that the nature, and legislative intent, of s66EA is designed to overcome. The problem in this case for the Crown is that the failures of the evidence to come up to the particulars is so broad reaching, that it impacts on my view of the reliability of the evidence overall.

No witnesses of any inappropriate behaviour at all by the accused

These offences (but for count 3) were allegedly committed in the presence of others, sometimes awake, at other times asleep. It needs to be remembered that the case is this offending was happening far more often than the 10 occasions set out in the indictment. Yet the only evidence of anybody witnessing anything was not an occasion on the indictment, and was not conduct considered inappropriate. I am referring to the evidence of K that she saw her father crouching over X on one occasion and thought that he was checking on them because they were sleeping with a fire on. This was agreed to be an occasion different to any of counts 2 to 11. But it is telling, because the evidence of K was that she thought the accused was checking on them, an impression supported by the fact of the two girls being in the lounge room with a fire going. Rather than acting like a sexual predator, this evidence is open to the interpretation of the accused acting like a responsible parent.
In addition to the foregoing, I note also the direction as to the failure to call witnesses, discussed above at [37], and I take that into account accordingly.

The reliability of the evidence of X

Generally

As already stated, I found X to be a witness who presented well in the witness box, and who, to a large extent, sought to give frank and honest evidence, and to a large extent did so. That said, the occasions where her evidence was not impressive, as discussed at [210] above, were significant.
As is indicated from the range of matters just considered in the foregoing conclusions, there are however a number of matters which raise concerns as to X’s reliability. For the reasons discussed above, the following matters raise concerns as to X’s reliability:

I find that X did not sleep over at K’s home as often as once per week, which was one possibility allowed for by X. Rather, the frequency, which I find cannot be stated with great precision, could be as frequent as fortnightly at some times, and at others, more than a month apart (in accordance with K’s evidence of the last sleepover for 2007 being in a colder month).

The manner of preparing her statement with the police is a real concern. I find that it involved reconstruction to a degree that impugns the reliability of the evidence. As will be noted below, in respect of one count X expressly conceded that she may have been confused and was mixing two different events together as one. The result on the facts of this case is that must give rise as to uncertainty as to what it is that X was giving evidence about. The concern is to what extent this permeates the whole of her evidence.

The fact that X was unable to give evidence as to 4 of the 10 “instances” on which the Crown relies. The concerns this raises as to her reliability is heightened by the fact that 3 of the 4 matters of which there was no evidence were allegations of sexual intercourse, the most serious of the allegations made.

The fact that X’s evidence allowed for the relationship being alleged between her and the accused, which the Crown must establish beyond reasonable doubt, to be far different to that as contended for by the Crown. Rather than weekly or almost weekly visits overnight by X to the home of the accused where he was present 9 times out of 10 (Susan’s evidence), it turns out that her visits were not so regular, on my findings, and that, in my view, in light of the evidence as to the accused’s various addresses, the acknowledged periods in which he was not at Canada Street, the existence of AVO’s and other matters discussed above, the accused was most likely not present for far more of X’s sleep overs that one out of 10.

Further in this regard, I have real doubts as to this relationship as alleged being maintained for the period asserted by count 1, being 1 January 2007 to 31 December 2010. As discussed above, the allegations on one view of the evidence can be contained to a period of late 2008 to August 2009. This, along with the previous point, is a state of affairs far different that what was being alleged.

Despite the favourable view I have of X as a witness, there were three notable parts of her evidence which showed her in a less favourable light. I noted these at [210] above.

In addition to those matters going directly to the evidence of X, my discussion of the “matters to be considered” set out above, show they are matters which do not assist the Crown. This is so for both the complaint and the tendency evidence (which extends to concerns as to concoction), and that the evidence does not support the Crown case of the offending escalating over time. I note also that there were no witnesses at all to any inappropriate behaviour, at any time, by the accused towards or involving X.
With the above considerations and determinations in mind, I now turn to my conclusions on the evidence relied on as to the actual alleged offending, which I have set out above commencing at [98].

Count 5 (mattresses allegedly on floor)

For the reasons discussed at [147] et seq above, I find the evidence going to this count is inherently unreliable.
Nothing of the further evidence as to the other aspects of the case assists in alleviating the difficulties created by this unreliable evidence. The Crown has not satisfied the onus it bears as to the happening of this alleged event, whether it is considered as an “instance” relied on to make out count 1, or as an alternative count. In so far as it is being considered as an alternative count, I note the date range of 1 January 2008 to 1 January 2009. The evidence allowed for this event to have occurred in either of 2007, 2008 or 2009, and also when X was “about 11”, and her 11^th birthday was in August 2009. It follows therefore that even if otherwise established, the alternative count on the indictment fails for not having been shown beyond reasonable doubt to have occurred within that date range.

Count 9 (allegedly on top bunk with Fiona)

I have discussed the evidence going to this charge at [129] above. My view is that the evidence fails make out the charge, for it so clearly allows for the possibility that, as expressly stated by X, the accused “tried” to penetrate her, and X’s express rejection of the question as to whether he succeeded in doing so. In my view the result, on all the evidence of this case, is that there remains reasonable doubt as to this event occurring. This is because of my concerns for the reliability of the evidence of X, specifically that in respect of a charge alleging penetration the evidence is to reject that assertion, but not before giving evidence suggesting it may have occurred. To this needs to be added the other matters discussed above under the heading “Conclusions” for consideration, and those matters add further to my concerns as to X’s reliability, for the reasons there discussed.
Further, I note my comments at [134] above, and have concerns that this evidence is possibly, like X said the evidence for count 5 was, a mixing up of two different occasions.

Count 6 (allegedly on bottom bunk with K)

The accused made a no case submission in relation to count 6. This submission was founded on X’s own evidence of what occurred being an attempt to penetrate her vagina digitally; see [141] above, where X said “I would call it an attempt”. X also referred to the conduct of the accused as “trying” to do it, that is, trying to penetrate her.
The Crown submitted that taking the Crown case at its highest, this is the evidence of a 10 year old girl “struggling to describe whether there is access to her vagina or not wont necessarily know what attempt means and if there is penetration to the slightest degree that constitutes intercourse”.
There is express evidence of X which amounts to saying there was no penetration, but an attempt to do so. It follows in my view that the no case submission is well made. I would note however that even if that was wrong, and, accepting the Crown argument, that the evidence was open to the interpretation contended for by the Crown, the ultimate result would be the same. This is for two reasons. One, that evidence does not satisfy me beyond reasonable doubt that the “attempt” was successful. Secondly, the evidence reads as if X herself is unsure as to whether there was penetration, and as was commented in submissions, if X is not sure, how can the finder of fact be sure to the necessary standard?
Unlike counts 2, 4, 10 and 11, there was some evidence as to this count, plainly supporting an attempt. Whilst the no case submission succeeds on the count charged in the indictment, my view is that it would be appropriate to leave the statutory alternative count under s 344A to be determined by the finder of fact. I deal with all of the statutory alternatives below.
This count gives an interesting example of the working of s66EA. As discussed above at [4] et seq above, my view is that to make good the unlawful sexual act required by s66EA, the evidence needs to establish the act the subject of the particulars provided, whether those particulars be provided by way of alternative charges, or particulars provided as such in the indictment or otherwise. Here, the charge of sexual intercourse fails, as does in my view the statutory alternative of attempting that offence. Query whether, had I been satisfied that albeit not an attempt at sexual intercourse, there was sexual touching, or an indecent assault, would that be available to constitute one of the necessary unlawful sexual acts? For the reasons discussed above, and based on [115] of ARS, I consider the answer to that question to be no. To be otherwise would mean an accused could end up being first aware of what it is that he is charged with upon receiving the verdict. I note the Crown submitted to the contrary in its submissions that were invited on this point. In doing so the Crown relied on the terms of count 1, which in its very terms particularised the unlawful sexual acts alleged as being, in summary, the accused touching his own penis, the accused touching X’s vagina, and digital vaginal intercourse. Arguably then, this evidence as to count 6 makes out an occasion of touching X’s vagina. The overall unreliability of X’s evidence has the result that I am simply not satisfied that such an occasion of an unlawful sexual act occurred. If necessary, I would further find that even if that was found, it could not make out a necessary unlawful sexual act for the purposes of count 1. This is because, whilst the act is described in count 1, it is not particularised at all, and as discussed above, a charge under s66EA is not free from any particularisation, as recognised by ARS. In my view, the Crown’s submission must be wrong, for it has the result stated above, that an accused person would not even know the nature and character of the unlawful sexual act alleged against him or her until the verdict. The reference to “particulars” in s66EA(4)(a) is a reference to the particulars of an unlawful sexual act that is being alleged. So whilst particulars are not necessary, it remains necessary to specify just what it is the accused is alleged to have done, and beyond a bare statement of the type seen in count 1.

Count 3 (allegedly exposes penis from verandah)

I found the account given by X to be credible. Yet at the same time, in a case where this style of conduct was said to have occurred many times, this was the only occasion involving the backyard and verandah which emerged from the evidence with any detail, or in any meaningful way. The other pleaded count, count 2, was simply not evidenced at all.
The issue is really in circumstances where I consider X overall to be honest (but noting my concerns expressed at [210] above in connection with some particular pieces of evidence), is X reliable?
I have found in my assessment of counts 5, 6 and 9, that the version of events given by X is unreliable. The Markuleski direction needs to be considered here. Further, on this count I find that the evidence falls outside the date range, and considerably so. In her evidence she allowed that this event may have occurred when she was 8, so no later than 6 August 2007, yet the beginning of the time frame in the indictment is 1 January 2008. On another version of her evidence the best she could say was it was when she was at primary school, a period of more than six years, being 1 September 2004 to December 2010. For these reasons of the dates I consider that this count as an alternative count cannot be made out.
The count could however arguably still be made out for the purposes of count 1. A further issue arises in terms of the application of s66EA, as to whether the provisions of s66EA as to particulars are without limit. By that I mean, if an event was alleged to have occurred in 2009, but was proven to have occurred in 2008, then clearly it would be caught as an instance of one of the acts required by s66EA. But say instead the evidence showed the event occurred, but in 1989, or 1999, is that event still able to satisfy one of the unlawful sexual acts for s66EA? The answer I consider likely to be dependent on the facts of each particular case and on whether it can be said, within the constraints of s66EA, that the accused has had a fair opportunity, as in the sense of a fair trial, to understand the case being put against him and to meet it. In this case the 6 year span extends roughly to 3 years each side of the date on the indictment. The accused’s case is it simply did not happen. My view is that the date issue here does not prevent this count becoming an instance of one of the two necessary unlawful acts required to make out the offence under s66EA.
The ultimate question then is has the Crown satisfied me beyond reasonable doubt that the event alleged as count 3 occurred? After considerable consideration the answer is that I am not. The unreliable nature of the evidence of the other counts, in particular counts 5, 6 and 9, and the concerns I have generally as to the other evidence in the case, discussed above, including as to the reconstructed nature of important parts of X’s evidence, which the evidence of X clearly expressly allowed for in respect of this count 3, and also the inability of X to be able to state with some degree of proximity when the event occurred, all contribute to this conclusion. Whilst dates need not be proven for s66EA, that does not mean that an inability to be any more precise than X was here cannot add to a fact finder’s concerns as to the happening of an event. Nor should the three different possibilities allowed for by X’s evidence as to when it was that the accused allegedly touched his penis be forgotten, something I find unpersuasive for the Crown case. As discussed above, there was also the inconsistency as to whether the accused’s hand was “down” his shorts or “up” his shorts, and the unconvincing evidence of X seeking to explain this inconsistency.
These matters lead me to have reasonable doubt as to count 3. This doubt extends beyond the particulars of the time at which it occurred, and to the actual happening of the event. Accordingly I do not find that it is an event that satisfies an unlawful sexual act for the purposes of s66EA, and further there will be a verdict of not guilty on this alternative count.

Count 7 (alleged exposure when Fiona leaves room)

In dealing with the evidence of this count above, I indicated that I accepted X’s evidence as being honest. Yet a review of that recounting, starting at [116], shows just how vague the evidence is for this count. In light of the range of matters considered above which have led me to conclude that on numerous counts X is unreliable, together with the other matters discussed above at [238] and just discussed at [254], I am not satisfied the Crown has satisfied me beyond reasonable doubt as to this count, either as an “instance” or as an alternative count.

Count 8 (alleged exposure when sitting in daughter’s room)

My conclusion as to count 8 is largely as for count 7. That is, I consider that X is honest in recounting her recollection of this event. The other matters detailed above however erode the positive impact of that honesty. Further, the evidence of this particular charge was not free from difficulty; there was the differing accounts given as to who was present at the time of the alleged offending, which again raised the spectre of whether X was recalling a mixture of recollections. Further, the evidence as to the actual touching of the penis by the accused varied from suggesting it occurred numerous times, to occurring on just one occasion, a variation which, when considered amongst all the other evidence, caused me concern. I therefore am not satisfied beyond reasonable doubt as to this matter, either as an alternative count, or as an “instance” relied on for s66EA.

Statutory alternatives

In relation to counts 5 and 6, which allege aggravated offences, there is available a statutory alternative verdict of the offence without aggravation, being indecent assault (s61L) and sexual intercourse without consent (s61I) respectively.
Due to my findings about the reliability of the evidence of X, I come to the same conclusions as to these alternatives as were reached in respect of the aggravated offences.
Further, in respect of each of the above 6 charges there is a statutory alternative verdict possibility of attempting to commit the offence relied on by the Crown. I have set out the legislative provisions above. For two reasons I am not satisfied as to these alternatives either. Firstly, for the same reason as to the unreliability of the evidence. Secondly, even if a finding could be made as to what factually the accused was doing, on the evidence of this case I am not satisfied beyond reasonable doubt that he was attempting to commit the offences on the indictment. For example, count 5 is on X’s evidence possibly an amalgam of two occasions; my view, as indicated above, is that results in a possibility that what has been evidenced is an event that simply never occurred. The same can be said as to count 9. Further, given the evidence of K, who on some other occasion had the impression the accused was checking on the children, I am not satisfied beyond reasonable doubt that the accused was attempting such serious offending, even allowing for my overall (but with notable exceptions) favourable view of X as a witness.

Count 1

In the absence of an unlawful sexual act being established, it follows that count 1 cannot succeed. I would further note that there was very scant evidence of either a relationship or of any relationship being maintained by the accused with X. Had the alleged “instances” of unlawful sexual acts been made out, and had it been established that this conduct occurred many times, as was the Crown case, then arguably those elements could have been inferred. Yet those acts were not established, and there was no evidence of any interaction between the accused and X of any significance. The evidence did not support the closing submissions of the Crown in this regard, which were to the effect of the house at Canada Street being a drawcard for X, and with the necessary relationship thereafter being maintained. The evidence does not make out the offending, let alone the asserted “habituality” of offending (see T525). Nor, on the evidence in this case, am I prepared to accept the Crown’s submission comparing ongoing sexual abuse (which I consider has not been established) to a routine drive through an intersection on the way to work. That analogy may have some traction in other circumstances, but here, with the range of concerns outlined above, it does not. The height of the evidence in this regard is arguably at T89, relied upon by the Crown in submissions, where X gives evidence in the very imprecise terms as to being touched “probably” once a week, over a period “probably the four or five years that I constantly stayed at their house”, “generally” during the night when she was asleep, in a bedroom in a bed. The analysis of the evidence shows that it is unlikely to have been once a week, and indeed, without reversing any onus, it seems likely to have been far less frequent than that, nor were X’s visits “constant”, and the evidenced allegations relied on to support the indictment showed her more often to be awake than asleep. My view is this evidence adds weight to, rather than detracts from, the conclusions I have reached.
Further, given the doubts that exist as to just how often the sleep overs occurred when the accused was in the house (and the evidence of Susan supporting the Crown on this point is acknowledged, but then again the evidence of K detracts from this), I would not find on this evidence that the accused maintained a relationship with X. Further support for this view is if the photographs of exhibit C are relied on as strongly as argued for by the Crown, which in my view tend to mislead, then there are none in which both the accused and X appear together.

Result

The range of factors considered under the heading “Conclusion” above are significant. Consideration of the individual counts raises further matters of concern. The overall result is that even though I considered the complainant honest in most respects, ultimately I was not satisfied that the evidence overall was reliable enough so that it could be said the alleged instances of unlawful sexual acts had been proven beyond reasonable doubt. That is, there remains reasonable doubt as to the factual events occurring, which allows the matters to be determined favourably to the accused without any need to further consider the various elements of the instances / offences alleged. I have reached this conclusion even though by s66EA(5) I am not required to be satisfied of the particulars of those alleged instances. Further in my view, those matters causing such doubt remain prevalent enough to cause that doubt to remain even if what is being considered is an attempt at the relevant unlawful sexual act. In overview without being exhaustive, the dates on some charges are not made out, evidence of 4 counts of 10 is wholly missing, there is no evidence to support a fifth charge, there is evidence of reconstruction, counts 5, 9 and 6 have serious elements of unreliability, and there was scant evidence going to the necessary relationship. With the greatest respect to the Crown’s presentation of the case which was done with much care, that case is simply not made out.

VERDICTS

Count 1 Not guilty
Count 2 Not guilty
Count 3 Not guilty
Count 4 Not guilty
Count 5 Not guilty
Count 6 Not guilty
Count 7 Not guilty
Count 8 Not guilty
Count 9 Not guilty
Count 10 Not guilty
Count 11 Not guilty
The exhibits may be returned.

**********

Decision last updated: 17 September 2020

Medium Neutral Citation:	R v CEM [2020] NSWDC 537
Hearing dates:	19, 20, 21, 24, 25 26, 27, 28, 31, August and 1 and 2 September 2020
Date of orders:	16 September 2020
Decision date:	16 September 2020
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See at [265]
Catchwords:	CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14
Legislation Cited:	Evidence Act 1995 (NSW) Crimes Act 1900 (NSW) Crime Sentencing Procedure Act 1999 (NSW)
Cases Cited:	ARS v R [2011] NSWCCA 266 High Court in Fleming-v-R (1998) 197 CLR 250 R v Markuleski (2001) 52 NSWLR 82 R v O’Toole [2020] NSWDC 423 Pell v The Queen [2020] HCA 12
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Regina (Crown) Accused (CEM)
Representation:	Counsel: Oliver, Crown Prosecutor Carty for the Accused
File Number(s):	2018/00373255
Publication restriction:	Unrestricted Note: s578A Crimes Act 1900 (NSW) and; Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Count	*Charge*	*Opening*
2	61O(2); aggravated act of indecency < 10	In colder months of 2007: D exposed himself from verandah as complainant walked through property
3	61N(1); act of indecency < 16	2008 when complainant 10: D calls her to verandah re phone and exposes himself
4	66C(1); sexual intercourse bw 10-14	Summer 2008 when complainant 10; Digital vaginal intercourse whilst in K’s bed with K and K asleep
5	61M(1); agg indecent assault (<16)	2008 when complainant 10; D rubs her vagina while she in lounge room with K and other children after birthday party
6	61J(1); agg sexual assault (<16)	Not long after count 5 when complainant 10, after swimming at Bellwood Creek, digital as she lay in K bed; C kicks out
7	61N(1); act of indecency < 16	Weekend day late 2008 or early 2009 D masturbates himself while C plays Nintendo on a double bed
8	61N(1); act of indecency < 16	Soon after count 7 D exposes himself whilst the complainant plays Nintendo with D’s children on the floor
9	66C(1); sexual intercourse bw 10-14	On the same day as count 8 D has digital vaginal intercourse with the complainant while she in a bed on her own in K’s room, awake and D knew she was awake
10	66C(1); sexual intercourse bw 10-14	Late 2010 when complainant aged 12 digital vaginal intercourse in K’s room and exclusive use of that bed and that room for the night
11	66C(1); sexual intercourse bw 10-14	Next morning after count 10 in the same bed D has digital vagina intercourse with complainant again