R v Clarke

[2020] NSWDC 881

District Court

New South Wales

Medium Neutral Citation:

R v Clarke [2020] NSWDC 881

Hearing dates:

28, 29, 30 April 2020 & 01, 04, 05, 06 May 2020

Date of orders:

14 May 2020 & 13 August 2020

Decision date:

14 May 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

The accused is found guilty of count 1, 2 and 3

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Child sex offences — Sexual intercourse with child <16

CRIMINAL PROCEDURE — Trial — Judge alone

CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:

Crimes Act1900

Criminal Procedure Act 1986

Evidence Act 1995

Evidence Audio and Audio Visual Links) Regulation 2015

Cases Cited:

Abbott v The Queen [2017] NSWCCA 148

Decision Restricted v R [2019] NSWCCA 234

Edwards v The Queen (1993) 178 CLR 193

Ewen v R [2015] NSWCCA 117

Fleming v R (1998) 197 CLR 250

GM v R [2017] NSWCCA 78

Hughes v The Queen (2017) 344 ALR 187

IMM v The Queen (2016) 257 CLR 300

Mahmoud v Western Australia (2008) 232 CLR 397

R vBauer (a pseudonym) [2018] HCA 40

R v Murray (1987) 11 NSWLR 12

Regina v Markuleski [2001] NSWCCA 290

Zoneff vTheQueen (2000) 200 CLR 234

Category:

Principal judgment

Parties:

Regina (Crown)

Darrell Charles Clarke (accused)

Representation:

Donna Daleo (Crown Prosecutor)
Taran Ramrakha (counsel for the accused)

Director of Public Prosecutions (NSW) (Crown)
Pope & Spinks (accused)

File Number(s):

2017/00121873 & 2016/00321508

Publication restriction:

Statutory non-publication order for the identity of the complainants and a further order made in Court that there is to be no publication of the names of the complainants or of any information which may enable their identities to be ascertained

REVISED JUDGEMENT

1. I find the accused guilty of the offences set out in count 1 that he, between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did have sexual intercourse with TO, a child then under the age of ten years, namely, six or seven years.

2. I find the accused guilty of count 2, that he between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did assault TO and at the time of that assault committed an act of indecency on TO, a child then under the age of 16 years, namely, six or seven years.

3. I find the accused guilty of count 3, that he between the 23rd day of October 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did have sexual intercourse with SO, a child then under the age of ten years, namely four years.

4. I am therefore not required to return a verdict in respect of count 4 which was placed in the alternative to count 3. In each case the accused is convicted.

5. I will now commence my reasons for the decisions that I have reached and I will, at a point in the presentation of this material, cease the delivery of the judgement until the next occasion.

Introduction

6. On Monday 27 April 2020, Darrell Charles Clarke appeared for trial in the District Court at Sydney to be presented upon an indictment alleging four offences. These were charged in the following terms.

Count 1: Between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did have sexual intercourse with TO, a child then under the age of ten years, namely, six or seven years.

Section 66A(1) Crimes Act 1900.

Count 2: Between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did assault TO and at the time of that assault committed an act of indecency on TO, a child then under the age of 16 years, namely, six or seven years.

Section 61M(2) Crimes Act1900.

Count 3: Between the 23rd day of October 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did have sexual intercourse with SO, a child then under the age of ten years, namely, four years.

Section 66A(1) Crimes Act1900.

Count 4: In the alternative to count 3, between the 23rd day of October 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did assault SO and at the time of that assault committed an act of indecency on SO, a child then under the age of 16 years, namely, four years.

Section 61M(2) Crimes Act1900.

7. To each of the charges the accused pleaded not guilty.

The Trial

8. The accused elected to have the trial conducted before a judge alone pursuant to s 132 Criminal Procedure Act 1986, to which the Director of Public Prosecutions agreed. The election form signed by the accused and on behalf of the Director was filed on Tuesday 28 April 2020, the second day the matter was listed before me. It had been indicated in the week before this that the parties wished the trial to proceed in this fashion, but the preparation of the election document, including the signature by the accused and on behalf of the Director of Public Prosecutions, could not be completed because of the remote location of the accused. This was remedied and the document was ready to be filed on the second day.

9. It is also necessary to note that the accused consented to his presentation at the trial by audio visual link from where he is presently held in custody. The accused’s consent was necessary, for the Court had no power to compel his appearance for trial other than in the courtroom: Regulation 4A Evidence Audio and Audio Visual Links) Regulation 2015.

10. Since the parties sought a judge alone trial, the Court was mandated to that course by force of s 132(2) Criminal Procedure Act 1986, subject to the accused having sought and been given advice by an Australian legal practitioner: s 132(6) Criminal Procedure Act 1986. I am satisfied that the accused was given advice by his counsel upon this question.

11. The application for an order under s 132 of the Act was not lodged until 28 April 2020 and therefore within the period of 28 days preceding the date fixed for the trial. Neither party opposed an order that the trial continue forthwith. The accused was anxious for the trial to commence.

12. This is a retrial after he was found guilty by a jury and successfully appealed to the Court of Criminal Appeal which remitted the proceedings to the District Court: Decision Restricted v R [2019] NSWCCA 234. The judgement is restricted pending the determination of the re-trial.

13. Due to the restrictions upon the business of the Court because of the difficulties arising from COVID-19, a trial before a jury was unlikely until, at the earliest, late in 2020, notwithstanding the delay which has elapsed and that the accused is in custody in respect of this matter only. On 11 May 2020 the Chief Judge announced the intention to resume jury trials on 15 June 2020, but the availability of Courts with facilities to accommodate the strategies against the risk of transmission of infection from this disease will limit the number of Courts available for juries.

14. It was appropriate for the trial to proceed forthwith. There could not be any suggestion of the parties taking advantage of the deployment of judges, for it was announced in the preceding week that a trial by judge alone was sought when it could not be known which of the judges in the Downing Centre in the week commencing 27 April 2020 would be allocated the proceedings.

15. The accused was arraigned on the first day to allow the resolution of pre‑trial issues that were to be agitated. Some of these were resolved quite quickly and I was able to deliver ex tempore judgements dealing with them, but there were some matters that required more time for judgement and upon consideration of the questions before me I announced my decision with reasons to follow. I shall incorporate those reasons in this judgement.

16. The accused was arraigned once again for the purposes of the trial and, after the opening the Crown case, the evidence was presented.

General Directions

17. To comply with s 133(2) and s 133(3) Criminal Procedure Act 1986 and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.

18. The accused pleaded not guilty and elected trial by judge alone. Thus it became my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return my verdicts according to the evidence. It was for me to assess the witnesses and decide whether they were reliable.

19. I note that reliability depends upon two quite different but sometimes overlapping considerations. One is the witness’s honesty and 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. This is an important consideration in this case, for though I am satisfied that the witnesses were not attempting to deceive or mislead the Court, there is scope to find that some of the evidence given might be mistaken.

20. I have the benefit of submissions from the Crown and the accused’s counsel. I have considered them and given them such weight as I think they deserve. I note that they are not evidence in either case.

21. 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 the importance of the matters I must decide, not only for the accused, but also for the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotions sway my judgement. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence presented during the course of the trial. This includes the oral evidence of the witnesses and exhibits. I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of a witness’s evidence.

The Burden of Proof

22. This is a criminal trial. The Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges. It is not for the accused to disprove those elements, but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.

23. The words “beyond reasonable doubt” are ordinary, everyday words and that is how I understand them. If at the end of my deliberations I am not satisfied that the Crown established any of these essential matters beyond reasonable doubt, having taken into account the evidence both for the Crown and for the accused, and after also taking into consideration the submissions made to me by the Crown and the accused’s counsel in their addresses, then it is my duty to bring in verdicts of not guilty because the Crown would have failed to do what the law requires it to do. It is vitally important that I clearly understand that the accused must be found not guilty if any one of the essential ingredients of the charges was not proven to my satisfaction beyond reasonable doubt.

24. It follows that if I was left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such essential ingredient, even though I might suspect that the accused engaged in the conduct upon which the charges are brought, the accused is entitled to the benefit of that doubt and I must find him not guilty.

25. I remind myself that the Crown does not have to prove every single fact arising from the evidence in the case beyond reasonable doubt, and I am not required to resolve every conflict arising from the evidence. The onus which rests upon the Crown is to prove the ingredients of the offences.

Inferences

26. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference adverse to the accused from proven facts, if such inference is a reasonable inference that can be properly drawn from the proven facts.

27. This is a criminal trial and, as I have already noted, I must be satisfied of each of the essential ingredients beyond reasonable doubt before he may be found guilty of a charge. Amongst other things, this means that I must 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 as to the existence of an essential ingredient or as to the guilt of the accused unless it is the only rational inference in the circumstances.

The Accused did not Give Evidence

28. The accused did not give evidence. The accused has not given any evidence in response to the Crown’s case although there were documents tendered on his behalf in the course of the trial. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation to do so. The accused’s decision not to give evidence cannot be used against him in any way in my deliberations upon the essential elements that the Crown must prove.

29. I must not use that decision as an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I must not use that fact to fill any gaps that I might find exist in the evidence tendered by the Crown in proof of the essential matters that it must establish. I must not use it in any way to strengthen the Crown case or to assist the Crown to prove the matters required of it beyond reasonable doubt. I must not speculate about what might have been said.

Character

30. The accused’s character was not raised as an issue in this trial. The Court is aware that he was found guilty in the first trial, but in the Court of Criminal Appeal the convictions that followed were set aside and the matter remitted for retrial. The error found was that the trial judge did not intervene to deal with submissions by the Crown to the jury as to answers in the accused’s interview with police said to be lies. The earlier verdicts are of no significance in this trial.

31. In the interview, the accused referred to a motor vehicle collision in which his friend was killed. The information he gave is not entirely clear and it was not explored by the detectives further, but it carries the implication of some wrongdoing. He referred to the punishment he suffered. This, too, is irrelevant to this trial. The accused did not put his character in issue and therefore I have put to one side that evidence, except to the extent that it might be relevant to the accused’s asserted limited memory articulated in the interview in which he participated with police, which he attributed to excessive alcohol consumption and injuries he suffered in the collision. There is no other evidence regarding any such injury before me.

The Accused’s Interview

32. The accused gave a version of events in the recorded interview with investigating police. The accused was entitled to rely upon that account and ask that I take it into consideration with the other evidence called by the Crown. The accused was not required to prove that the account is true.

33. The Crown, in discharging its obligation to prove the accused’s guilt, must satisfy me that it is a version of events that could not reasonably be true. The interview was limited to the allegations made by SO, of which the police were aware at the time. There was no complaint at that point made by TO.

34. On 27 October 2016 the accused participated in the interview with investigating police and an edited version of that was tendered in the trial. The interview concerned, as I said, only the allegations made by SO. As I said, the accused is entitled to rely upon that account and ask the Court to take it into consideration with other evidence called by the Crown; he was not obliged to prove that the account is true. The Crown’s obligation was to prove that the version given in respect of SO could not reasonably be true.

35. He provided qualified responses to the questions which alerted him to the offences for which he was then being investigated. The Crown relied upon these for purposes that I shall deal with when considering the evidence. Ultimately, however, he made express denials of wrongdoing towards this child toward the end of the document.

36. If I were to accept these denials it would follow that the accused must be found not guilty in respect of the charges brought upon allegations made by SO, for it would follow that I was not satisfied to the requisite standard that the accused engaged upon the conduct alleged of him in respect of her.

37. On the other hand, if I do not accept what the accused said regarding those allegations, though there are responses upon which the Crown relies in the case it presents against the accused, it does not follow that they are sufficient, standing alone, to ground the finding that the accused is guilty of either count 3 or count 4. It remains that I must examine the Crown case and the evidence upon which the Crown relies, to determine whether it proved to the standard beyond reasonable doubt the elements of an offence charged in respect of SO.

38. The investigation of the offences alleged in respect of TO was not conducted at the same time as the investigation of the offences alleged in respect of SO. When given the opportunity to be interviewed about the further allegations, the accused declined. He bears no burden for having done so. He was entitled to remain silent upon all the allegations put to him, that he did so in respect of the allegations made on counts 1 and 2 on the indictment does not give rise to any presumption against him, and there is no adverse inference to be drawn against him from exercising the opportunity that he had to remain silent.

The Essential Elements

39. The allegation brought in count 1 in the indictment is that between 1 January 2016 and 26 October 2016 at Leumeah, the accused had sexual intercourse with TO, a child then under the age of ten years, namely, six or seven years. The allegation in this count is of digital penetration of the child's genitalia, conduct that is included in the definition of sexual intercourse in the Crimes Act at s 61H which at the time relevantly provided:

1. For the purposes of this Division, “sexual intercourse” means:

1. sexual connection occasioned by the penetration to any extent of the genitalia ... of a female person or the anus of any person by:

1. any part of the body of another person, or

2. ..., or

2. ...

3. the continuation of sexual intercourse as defined in paragraph (a), ...

40. The Crown must prove that the accused inserted his finger in the child’s genitalia. The Crown does not have to prove that full penetration occurred or that the accused ejaculated or that the sexual intercourse was for the accused’s sexual gratification.

41. The offence charged in count 2 is that the accused, between 1 January 2016 and 26 October 2016 at Leumeah, assaulted TO and at the time of the assault committed an act of indecency on her, a child under the age of 16 years, namely, six or seven years. The Crown case is that the accused pulled down the child’s underpants and touched her buttocks with his finger. The offence is alleged in contravention of s 61M(2) Crimes Act 1900, which provided at the material time,

“Any person who assaults another person and, at the time of, or immediately or before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for ten years, if the other person is under the age of 16 years.”

42. The Crown must prove beyond reasonable doubt,

1. that the accused assaulted the complainant and

2. that the assault was indecent.

43. The Crown must first prove that the accused deliberately and unlawfully touched the complainant. The slightest touch is sufficient to amount to an assault and it does not have to be hostile or aggressive or one that caused the complainant to feel pain. The Crown must prove that the assault was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in this community. It is for the Court, as the tribunal of fact, to determine the standards prevailing in our community when deciding whether the Crown has proven that the act alleged in this case was indecent. For an assault to be indecent it must have a sexual connotation or overtone. If the accused touched the complainant in a way which clearly gives rise to a sexual connotation, that is sufficient to establish that the assault was indecent.

43. It is not suggested that the conduct alleged of the accused, if it occurred, would not amount to an assault with a sexual connotation or overtone. The Crown may rely upon the same act as amounting to both the assault and the act of indecency; that is what the Crown alleges here.

44. The offence charged in count 3 is that between 23 October 2016 and 26 October 2016 at Leumeah, the accused had sexual intercourse with SO, then under the age of ten years, namely, four years. This allegation is of digital penetration and the instructions I have taken for count 1 apply with equal force here.

45. The offence charged in count 4, in the alternative to count 3, is that between 23 October 2016 and 26 October 2016 at Leumeah, the accused assaulted SO and at the time of the assault committed an act of indecency on SO, a child then under the age of 16 years, namely, four years.

46. The alternative is offered in this instance to meet the possibility that the Court would not accept that there was penetration of the child’s genitalia, in which case the conduct would be relied upon in support of the alternative fourth count. All that I have said regarding the second count applies equally here. It is not said that touching the genitalia of a child in the circumstances alleged by the Crown would not amount to an indecent assault.

47. It was also necessary for the Crown to prove beyond reasonable doubt the respective ages of these children within the time frame that is alleged. There was no issue raised in this trial with regard to that and there is no question to be determined with regard to the ages of the children within that period, although it is a matter of which the Court must be satisfied to the requisite standard before a verdict of guilty can be returned. I am satisfied, I should say, that the ages of the children as alleged were as specified within the time frames included in the charges.

The Crown Case

49. The Crown presented an indictment with the first two counts charged in respect of the child TO and the third and fourth counts charged in respect of SO. This, however, is in the reverse to the notification of the offences by the complainants. SO was the first to complain against the accused and later made her complaint.

50. The Crown provided an opening address in which she advanced the following points:

1. In 2016 the accused Darrell Clarke lived in unit 5 of a block of flats in Leumeah on the upper floor and Leone, the grandmother of the children, lived in unit 3 on the ground floor.

2. The accused and Leone became friends. He was a regular visitor to her unit and would sometimes bring meals he had prepared. They would sit together on her balcony where the accused smoked and often consumed alcohol.

3. Leone had visits from her family including her mother, Anne, her sister Janet, her daughter Anne‑Marie and her grandchildren.

4. Anne-Marie had four children, R, TO, SO and J.

51. I will pause here to note that I refer to these adults using their given names only to maintain the confidentiality of the identities of the children.

1. TO was born early in 2009 and SO late in 2011.

2. In October 2016 Leone’s mother Anne and her daughter Anne‑Marie and her grand-daughters SO and J came to stay. Leone’s sister, Janet, was also staying with her.

3. During their stay the accused came to visit Leone and met her family including SO. He had met Anne-Marie during a prior visit in 2016.

4. During their stay the accused placed SO on his lap a number of times in the lounge room and on the balcony. He also took SO to his unit and gave her lollies.

5. On one occasion during their stay and whilst he and SO were alone in a room in Leone O’s unit the accused put his hand down SO’s underwear and penetrated her genitalia, rubbing it with his hand.

6. It is this alleged conduct which gives rise to the charge of sexual intercourse with a child under ten, count 3 on the indictment, with count 4 in the alternative alleging an aggravated indecent assault. [1]

   1. Interview with SO questions 236 to 288.

7. Anne-Marie visited her mother from time-to-time and would stay when she attended doctor’s appointments in Sydney. She first met the accused during a visit to her mother in September 2016 when her daughter TO was staying with her mother.

8. In October 2016 Anne-Marie lived in Muswellbrook and on 23 October travelled to Leumeah with her grandmother Anne and SO and J then aged one.

9. During Anne-Marie’s visit the accused came to Leone’s unit daily and brought food. He had been drinking. He would bring beer with him. The accused was friendly to Anne-Marie and SO.

10. Anne-Marie attended a number of appointments during her stay and was away from the unit for several hours each day. On one occasion when she saw SO and the accused on the balcony with SO on the accused’s lap, she heard her grandmother Anne tell SO to get off him and she complied.

11. One day she returned to her mother’s unit after a doctor’s appointment. Her mother said that SO had gone to the accused’s unit whilst she had been baking a cake.

12. On one occasion SO was having a bath in Leone’s unit when Anne‑Marie heard her scream. Anne-Marie went to the bathroom and SO told her that she had put shampoo in the bath and it had gone into her “rude part”. The accused followed her to the bathroom, stood to the doorway and she told him to go. He said, “Just give me a look; I used to be an ex-nurse.” Anne‑Marie said “No”. She told him to go and close the door.

13. During her visit Anne-Marie was in the lounge room with SO who told her “that man upstairs rubbed my minnie”. The word “minnie” was used by SO to refer to her genitalia. Anne-Marie rang triple-0.

14. Leone, the complainants’ grandmother, to whom they refer to as Nanny O, was anticipated to describe an occasion during the visit in October when she was baking a cake and as she put it in the oven she saw the accused sitting on the balcony with SO on his lap. She returned to check the cake and when she looked out onto the balcony SO and the accused were gone and nowhere in the unit. She went to the accused’s unit and knocked. He opened the door. SO was inside with lollies in her hand. Leone took SO back to her unit.

15. The great-grandmother, Anne, saw SO on the accused’s lap on a number of occasions and told her to get off. SO told her she had been in the accused’s unit.

16. Janet, the complainants’ great-aunt, was in her room when SO came and said, “Aunty Janet, that naughty man touched me”. Janet then spoke to Anne-Marie and asked her if she knew about this, and Anne‑Marie told her she had called the police.

17. The police attended Leone’s unit about 6pm on 26 October 2016.

18. The following day, 27 October, SO was taken to Liverpool Hospital by her mother and her great-grandmother. While Anne was sitting with SO waiting for her to be seen by a doctor, SO told her “The man had flashed his doodle”. Anne conveyed this to Dr Tran from the Sexual Assault Service. Dr Tran took a history from SO and family members and conducted an examination, the results of which were neutral.

19. By agreement, the Court was to receive a transcript of the evidence of Dr Tran from the last trial and she would then be made available for cross‑examination.

20. After SO was seen by Dr Tran she was interviewed by Detective Beckett from the Liverpool Child Abuse Squad. She told Detective Beckett that the accused had put his hand inside her underpants and that he had rubbed the inside of her “minnie”. She said that this happened in a room in her Nanny O’s house and that there was no-one else in the room. She said that the accused had got his doodle out.

21. About 6pm on 26 October 2016, Detectives Hasler and Beckett attended the accused’s work premises, identified themselves and placed the accused under arrest for the alleged sexual assault of SO. He was cautioned and taken to Narellan police station where he participated in an ERISP commencing at 7.50pm.

22. He told police that he and Leone were close friends, that he had met some of her family, that he had met Anne-Marie about three months ago, that he had met SO during the last three or four days. He said he would sometimes take food to Leone, including when her family were visiting. He said that whilst Leone’s family was visiting, Leone had tried to make some cakes but had burned them.

23. He said that while SO was at Leone’s house she sat on his lap when he was on the verandah with Leone and that SO had also cuddled him on an occasion in the lounge room. He said he was in the unit when SO complained about hurting herself in the bath. He went to the bathroom with her mother and SO told him she had hurt her “minnie”.

24. He told police he was an alcoholic and drank a lot during the visit from Leone’s family, “I was pretty drunk every day”, a reference to his three days off, Sunday 23, Monday 24 and Tuesday 25 October 2016, coinciding with the family visit. He said, “It’s just on me days off. I smash me self”. He said he feared going to gaol. When asked why and what was he saying he had done, he replied, “I don’t know what I’ve done”.

25. He told police Leone called him and said he had touched SO inappropriately and had touched her “minnie”. He replied, “What are you talking about?” He told police, “I don’t recall ever doing that.” When asked if he had ever put his hand in SO’s shorts he replied, “Not that I know of anyway,” and when asked, “Not that you know of?” he replied, “I don’t know. I, I couldn’t believe I’d do something like that.” The police said, “You don’t know?” and he replied, “I was drinking all day and all night, but I don’t believe I did anything like that.” When asked if he rubbed the outside of her vagina the accused replied, “I don’t know.” He went on to say:

“I haven’t got a clue what I’m doing by the afternoon. I start drinking at 5 or 4 or 5 in the morning as soon as I wake up. I can’t say yes or no, I just don’t believe I could, I could do anything like that.”

26. When asked if he had exposed his penis to SO he replied, “I don’t know” and in relation to the allegations went on to say,

“I don’t believe I could do something like that, but I honestly can’t say that I did or didn’t. I don’t even recall doing anything like that. God almighty, I must have been drunk, I don’t know”.

27. The accused was charged with the matters before the Court in relation to SO.

28. A month later, in November 2016, Anne-Marie was at home in Muswellbrook when TO came to her and said, “Mummy, I need to tell you something, but don’t get angry at me”. Her mother told her she would not get angry. TO said Darrell took her to the shop, gave her $5, and, “on the way back pulled out his dick and told me to touch it”. Anne-Marie called Family and Community Services helpline and told them what TO had said. She did not ask TO anything further.

29. On 3 February 2017, TO was interviewed by Detective Swaddling from the Newcastle Child Abuse Squad. TO told police she was visiting her Nanny O and a man put his hands down her pants, she was trying to stop him and he touched her on the inside of her rude part with his fingers. She said that she told him to stop but he kept doing it. She told police this happened upstairs in the man’s unit and that he lived upstairs from her Nanny O who was downstairs having a shower when it happened during school holidays.

30. This conduct grounds the first charge in the indictment. [2]

31. TO told police of an occasion when she was inside the man’s unit and was having a drink of cordial and he was trying to pull down her pants. She said, “Stop, Stop”, but he kept doing it and pulled down her undies and touched her on the bum with his finger.

    2. TO’s interview at qq 95 to 148

52. That gives rise to count 2 on the indictment. [3]

    3. TO’s interview at qq 165 to 185

53. TO told police that she saw the man’s rude part and that his pants were pulled down to his knees. She told him to pull his pants up, but he did not, and she went downstairs to her Nanny O’s. She said she thought the man’s name started with a D, saying “I think it is Darrell”.

1. Janet recalls an occasion when she went looking for TO and found her inside the accused’s unit with a handful of lollies. She asked TO where she got them and TO told her from Darrell’s fridge.

2. The accused was charged with the offences relating to TO and exercised his right to silence.

3. The Crown relies upon tendency evidence as raised in the first trial, relying upon the ruling of her Honour Judge Noman SC who was trial judge in those proceedings. The Crown relies upon the evidence of each complainant in support of the counts charged in respect of the other, upon the premise that the evidence revealed the accused’s tendency to have a sexual interest in young girls under the age of ten and to act upon that by sexually assaulting them.

54. I have included the Crown opening in such detail because the evidence that was given by the mother, grandmother and great-grandmother, upon which the Crown relies, did not in all respects come up to the outline provided by the Crown. I do not find, however, in this trial, that the women were endeavouring to mislead or were untruthful.

55. As I will explain in due course upon the analysis of the evidence, including my observations of two of the witnesses and their challenges in life, the most critical comment that can be made of them is that they were simply mistaken in their recollection of events upon which they were being called to speak some years after the occasions that are the subject of this prosecution.

The Accused’s Case

56. The accused did not provide an opening address, but it was made clear during the trial that the accused denied all charges against him and that these allegations were untrue.

57. The evidence referred to another person, Wendy, not called in the trial. She had allegedly seen the accused behaving inappropriately towards SO and screamed out, thereby informing Leone who, at first instance, did not believe her because of the perceived propensity of that woman for unreliability. In due course Leone accepted what she had been told.

58. The defence case includes the proposition that this catalytic event involving Wendy provided the foundation for the allegations, in the pursuit of which the children were aided in the creation of the allegations by way of the mother, grandmother or great-grandmother, or by all of them complicit in fabrication and its perpetuation. [4]

The Summary of the Proceedings So Far [5]

4. At this point judgement was adjourned to 13 August 2020

5. Judgement resumed on 13 August 2020

59. On 14 May 2020 I commenced this judgement with my announcement at the outset that I found the accused guilty of count 1, count 2 and count 3. I was therefore not required to return a verdict for count 4.

60. I thereupon embarked upon my judgement dealing with the principles upon which I was required to instruct myself including the onus and standard of proof upon the Crown, the drawing of inferences, the decision by the accused not to give evidence, the question of character which was not relevant to my task, my approach to the interview in which the accused participated with the police, the essential elements of the charges, and I summarised the Crown case and the case I gleaned on behalf of the accused.

61. I noted that my judgement included a detailed outline of the Crown opening before I intended to proceed to the analysis of the evidence because some of that did not come up to expectations. I found that the witnesses were doing their best to provide a truthful recollection of events but there were questions regarding their accuracy arising from the challenges that two of them demonstrated and the passage of time which had been some years since the events upon which the prosecution was brought.

62. I summarised the accused’s case which was quite brief. He had made clear during the trial that he denied all charges against him, by way of the manner in which the trial was conducted and the nature of the cross‑examination that was delivered to the Crown witnesses. The case presented on his behalf included reference to a person named Wendy, not called in the trial, who had allegedly seen the accused behaving in a way thought by her to be inappropriate toward SO, screamed out and thereby informed Leone, who at first instance did not believe her because of the perceived propensity that the person had for unreliability. In due course, however, Leone accepted what she had been told; the defence case included the proposition that this catalytic event arising from the representations by Wendy provided the foundation for the allegations in the pursuit of which the children were aided in the creation of the allegations by their mother, grandmother and great-grandmother, and thus were complicit in the fabrication and its perpetuation.

63. I will in due course refer to the evidence, particularly of the complainants in some detail, but with lesser detail when I come to address what was said by the other witnesses called in the case in light of what were thorough submissions by the Crown and on behalf of the accused, to which I have given close attention.

64. There was insufficient time on 14 May 2020 for me to conclude this lengthy judgement and I adjourned it until 2 July 2020, the first available date meeting the convenience of counsel and the Court. After my judgement is complete in its presentation, the hearing for the determination of sentence is to commence and it was anticipated that two days would be required overall to complete this task, and have presented evidence relevant to the determination of sentence and conclude with a judgement upon the topic.

65. I made orders for the preparation of a sentence assessment report and noted that counsel needed to clarify instructions upon whether a psychological assessment would be sought from Justice Health. The Crown undertook to serve any victim impact statement in good time before the sentence proceedings. I required the filing and service of the offender’s health records if they were to be relied upon and that any further documents including those relevant to medical or psychological health and character were to be filed and served well before the next listed date to allow the Crown to consider its position. The parties were left with liberty to apply in the meantime.

66. On 2 July 2020 I was presiding in a relatively substantial trial of charges of sexual assault upon a child which had suffered delays.

67. I note that the Crown in this matter was the Crown prosecuting in that other trial.

68. Because of fears arising from the COVID-19 virus, one of the first jurors selected made themselves unavailable after exhibiting symptoms requiring testing, after which, although they were clear of the illness, left them with ongoing anxiety such that they would not provide further service. In the circumstances they were unsuitable to offer further service if burdened with levels of anxiety such that it would be challenging for them to focus upon the evidence and the important questions that were for them to resolve.

69. A second jury was selected from which one member was discharged after the sudden and unexpected death of their father, and another was kept absent for some days toward the end of the trial when they were exhibiting symptoms and submitted to testing, the results of which took more than a day to be received. Rather than further disrupt that trial once it could resume, with the interposition of this matter, it was adjourned to 6 August 2020 but then could not proceed because of my unavoidable admission to hospital. The hearing was vacated until 13 August 2020, today.

70. Counsel for the offender sought that the matter be delayed until 2020 to allow time to gather the material he wished to tender on sentence. Thus the sentence proceedings were listed for 1 October 2020 with the balance of this judgement upon the question of guilt to be delivered today.

71. In the interim, Reporting Services Branch provided in draft the judgement delivered so far. I have revised that and shall add the balance to it when it is returned to me for revision. In that process, I once again read the principles there described and have had them available to me to ensure that they are in mind as I proceed through this analysis including of the evidence.

59. The Crown prepared the bundle upon which it relies for the proceedings on sentence but I have asked that the tender be withheld until I complete this task to obviate the risk that material there might infect the expression of my reasons upon which I came to the conclusion that the accused was guilty of the offences charged from count 1, count 2 and count 3.

Each Count and the Evidence Relevant to It

73. The accused was tried upon four counts jointly as a matter of convenience. The offences charged in respect of TO were in respect of two separate instances of alleged misconduct, whereas in the case of SO, there was one alleged incident for which there were alternative charges. Generally there was nothing in law or as a matter of common sense that required that the accused be found guilty of all three instances of misconduct set forth in the charges presented in the indictment if at the end of the day the evidence proved guilt in respect of one or some counts but not the remainder. The Court could not in such a case take the global approach; if the accused was found guilty or not guilty of one offence, the Court could not say that the accused was therefore guilty or not guilty of another offence or the other offences on the indictment. The Court was required to consider each charge with regard to the evidence relevant to it and return a separate verdict in respect of each.

74. The issue joined in respect of each complainant is whether the conduct occurred. To be more accurate, does the Court accept beyond reasonable doubt the evidence of the complainant described in the conduct and if so, does the evidence establish each of the elements of the offences charged. There was nothing said in the course of the presentation of the matter in terms that if the evidence was accepted, it did not establish the elements of the charges preferred.

Tendency Evidence

75. The Crown relies upon tendency evidence upon which her Honour Judge Noman SC ruled on 5 February 2018 in the first trial. The evidence upon which her Honour made a decision, with which I agree, was presented in this trial by way of the interviews in which the children participated and their evidence before the jury recorded at the time and admitted without further examination or cross‑examination in this trial. The evidence was before the jury from each complainant alleging what had befallen her. Her Honour’s ruling was upon the use to which the Crown might put the evidence as tendency evidence. The accused’s counsel did not seek to agitate against the Crown’s use of the evidence proposed for tendency purposes in accordance with her Honour’s ruling.

76. Her Honour’s judgement is succinct. I have the revised version provided by consent for my consideration. Ultimately her Honour concluded with her proposal to direct the jury on tendency reasoning. On p 1, her Honour said with reference to the tendency notice:

“Although not specified, the evidence discloses that the type of sexual activity relied upon is similar entailing opportunistic touching the children to the genital or bottom area”.

77. Her Honour summarised the evidence and referred to three authorities, IMM v The Queen (2016) 257 CLR 300, Hughes v The Queen (2017) 344 ALR 187 and GM v R [2017] NSWCCA 78, and a fourth authority Abbott v The Queen [2017] NSWCCA 148. To that I would add the High Court judgement of R vBauer (a pseudonym) [2018] HCA 40.

78. As her Honour observed, s 97 and s 101 Evidence Act 1995 were of application; there was no issue with regard to notice. The question that arose for her consideration was whether the evidence had appropriate probative value and whether the probative value was substantially outweighed by prejudice upon the accused. The concept relevant was whether the prejudice was an unfair prejudice in the sense that the evidence might be misused. I have, as I said, come to the view that her Honour was correct in her assessment of the matter and the application of the authorities that she cited. With the additional guidance provided by the High Court in Bauer ibid, I have reminded myself of the principles relevant to tendency evidence and as required I shall now direct myself upon those principles.

79. The accused was charged with two offences in respect of TO and two, one of which was in the alternative to the other, in respect of SO. I have the evidence that the Crown relied upon as directly establishing that the offender engaged upon each episode of misconduct. The Crown once more asks the Court to allow the evidence to be taken into account for tendency purposes, that is to say, that the evidence of each complainant when considering the case concerning the other be received as tendency evidence upon the premise that the evidence shows that the accused had a particular state of mind, namely a sexual interest in such young girls under the age of ten years, and a tendency to act upon that interest in a particular way, namely by engaging in sexual activity with girls under the age of ten years including the touching of their genitalia.

80. I have reviewed the notice of tendency which is before this Court as exhibit E. The Crown relies upon the evidence to show that the accused had the sexual interest alleged and was willing to act upon it in the way alleged. The Crown submitted that the Court would be satisfied that the accused had the sexual interest alleged on the basis of the conduct of a sexual nature committed against each complainant and that because he had this sexual interest, the Court would find it more likely that he committed the offences charged in the indictment.

81. Before the Court could use the evidence in the way for which the Crown contends, there are required two findings.

82. The first one is that those acts occurred, and in making that finding, the Court does not consider each act in isolation but in the light of all of the evidence, and then asks whether it finds that a particular act relied upon actually took place.

83. If the Court found that the acts against the complainants occurred, then the next question is whether from the act or acts found to have occurred, the Court can infer that the accused had a sexual interest as alleged. If the Court could not draw that inference, then it must put aside any suggestion that the accused had the sexual interest alleged. If having found one or more of the acts attributed to the accused to have occurred and from the acts inferred or concluded that the accused had the sexual interest alleged, the Court was then permitted to use that fact in determining whether the accused committed the offences charged.

84. The evidence could not be used for any other purpose. That is to say, it would be completely wrong for the Court to reason that because the accused committed one offence or was guilty of one episode of misconduct, he must therefore generally be a person of bad character and for that reason must have committed the offences charged. That was not the purpose of the evidence, and the Court was not permitted to reason so. The Court could not use the evidence in any way prejudicial to the accused unless it accepted the Crown’s argument that it showed that the accused had a sexual interest as alleged and therefore made it more likely that the accused committed the offences charged against him.

85. The Court was not permitted to substitute the evidence of the acts alleged to prove that the accused had the alleged sexual interest for the evidence of a specific allegation contained in the charges in the indictment. That is to say, one could not take the evidence of one episode of misconduct and transpose that to prove that the offence committed in another specific allegation was established. There was no course of conduct charged in this case. The accused was charged with particular allegations drawing upon what the complainants said. The Court was concerned with the particular and the precise occasion alleged in each charge and if the Court found that the accused had the sexual interest alleged, it may indicate that the particular allegations made by a complainant were true. This analysis reflects the requirement that the Court be satisfied beyond reasonable doubt before the accused might be found guilty of any offence.

86. As I indicated, I am satisfied that the requirements of s 97 and s 101 Evidence Act1995 were satisfied and upon the application of the authorities to which I referred, this evidence was available for the use for which the Crown contended, and I have brought it into account within that context and upon the application of these principles.

The Aspect of Complaint

87. The Crown relies upon evidence of complaint and this may be relevant in two ways. In this case there is something of a challenge with regard to this evidence to which I shall come because of the inconsistencies that were identified between the adults called in this case and the complainants upon the content of what was said by these children.

88. The Court has the task of deciding whether a complaint was made and what the content of the complaint in each case was. On behalf of the accused, it is said that the complainants’ evidence ought not to be accepted. The essence of the submission is that the Court could not be satisfied that this was not an instance whether intentional or otherwise of a combination between those called in the Crown case to falsely accuse the offender of these episodes of misconduct.

89. There was complaint made by these children. The fact of complaint is not the subject of challenge but the terms have been the subject of submissions. Upon finding that a complaint has been made, a Court could use evidence of what was said in the complaint as some evidence that the offence alleged did occur. It is therefore in such circumstances received as some evidence independent of the evidence given of the incident by a complainant. The law says that because of the circumstances in which a complaint was made, the Court is entitled to use what was said in a complaint as evidence of the truth of what the complainant alleges against an accused. The Court is 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.

90. Secondly, the Crown contends that the fact that there was a complaint raised by the complainant making the allegation against the accused at the time and in the manner that they did would lead the Court to accept the evidence given. The evidence would be thus more believable than if there had been no allegation raised in the manner described.

91. Once again, the Court must decide whether a complaint was made but if satisfied that it was, then the question is did the complainant act in the way one would expect of her if she had been assaulted as alleged? Was the response what one would expect of a person who has been assaulted in that way? If the complainant has done what one would expect of someone in their position that could support the Crown case because there is a consistency between the complainant’s conduct and her allegation. On the other hand, if the complainant has not acted as one would have expected someone to act after being assaulted as described, that might indicate that the allegation was false.

92. The Court must not overlook that there may be good reasons why a complainant did not raise an allegation immediately following an alleged sexual assault and that a failure to do so does not mean that the allegation must be false. This proposition resonates with argument presented by counsel for the accused, particularly with regard to the complainant SO and rhetorical questions advanced in the course of submissions regarding her apparent awareness that what occurred was wrong, and if she did have such a state of knowledge, why did she not immediately bring the misconduct to the attention of a responsible adult. I paraphrase the submission but that is the effect of what was put to me.

93. The propositions advanced with regard to complaint against the children and on behalf of the accused engage the guidance for which parliament introduced s 294 Criminal Procedure Act 1986 to which I shall make further reference.

94. Consideration of these questions includes the complainants’ ages at the time of the alleged offences, their accompanying lack of sophistication and immaturity, all of which were patent according to my assessment of their presentation.

95. The fact that a person says something on more than one occasion though does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

96. I find that the children responded to these events as one might expect them to do in the circumstances including their age, their sophistication or lack of it and their immaturity. I have not overlooked that there are inconsistencies in the recollections of what was communicated by the complainants in coming to this decision.

97. The next topic I want to deal with is the motive to lie.

Motive to Lie

98. The defence case was pitched in terms that the complainants, their mother, their grandmother, and great-grandmother, were not truthful in their evidence.

99. It was said in the case of SO that the Court could not exclude the possibility that she was simply repeating or reciting allegations that her mother and great grandmother had in effect fed her. I confirmed that the essence of the submission was that the Court could not accept beyond reasonable doubt that what was seen of the children making their allegations in the course of their interview, presented to the Court by way of an electronic recording, and could not be accepted beyond reasonable doubt because there is the prospect that they were programmed or coached into making those assertions to the investigators in the course of those interviews. This it was said might have occurred even unconsciously.

100. As noted earlier, the onus of proof of the essential elements of the offences rests with the Crown. The accused bears no onus to prove a motive to lie and rejection of the motive asserted does not necessarily, of itself justify a conclusion that the evidence of the witness in either case was truthful. The accused bears no onus of proving the existence of a motive for the fabrication of the allegations against him and if I reject the motive advanced, which I make clear that I do, I must not overlook the possibility of a motive unknown to the accused who cannot be expected to look into the minds of the witnesses including the complaints to ascertain what motive there might be.

101. The next topic I want to deal with is lies.

Lies

102. The first trial resulted in convictions which were successfully challenged in the Court of Criminal Appeal because of submissions made by the then Crown to the jury about responses by the accused in the course of his interview with police, which the jury were invited to consider were lies. The Court of Criminal Appeal noted that her Honour Judge Noman SC expressed her reservation about that approach and looked for guidance and assistance from counsel appearing in the trial to dissipate any implicit unfairness in what occurred, but counsel chose not to ask the Court to intervene. Their Honours noted the disadvantage suffered by the trial judge in those circumstances and when the matter was agitated in the appellate court, the opportunity presented resulted in the convictions being set aside and the trial remitted to this Court for retrial. The parties elected the trial to be conducted before a judge sitting alone as I earlier discussed.

103. The representations from the accused in the course of the interview, at the moment speaking of them in more general terms, were with regard to his inability to remember events and not provide clear and unequivocal denials that he engaged upon any such misconduct. His responses were qualified.

104. The Crown does not rely upon those representations as lies for the purposes of consciousness of guilt or as evidence of consciousness of guilt in accordance with the decision in Edwards v The Queen (1993) 178 CLR 193. The Crown does invite the Court to consider those responses as impacting upon the accused’s credibility in accordance with what the High Court said in the decision of Zoneff v The Queen (2000) 200 CLR 234. At the very least, the Crown submits, the Court would come to the view that the accused if he is to be accepted in those representations is not in a position to refute the allegations that are made against him.

105. If that submission is correct, and I believe that it is, that does not end the matter. The fact that I do not accept the accused’s credibility upon his denials or I act upon the submission that the accused by reason of the information advanced is not in a position to deny the misconduct alleged by the children, it remains that I must put that material to one side and consider the evidence in the Crown case to answer the question, has the Crown in respect of each charge proved beyond reasonable doubt the elements of the offence.

106. There was reference to the decision in R v Murray (1987) 11 NSWLR 12 which once required courts to instruct juries that in cases where the Crown sought to establish guilt largely or exclusively upon a single witness, appropriate scrutiny was required of the evidence led. The consideration of such matters was the topic of an appeal in the decision Ewen v R [2015] NSWCCA 117 in the course of the consideration of the arguments agitated there.

107. I accept that ultimately the case brought in respect of each complainant depends upon the reliability of the evidence of the complainant, but I find it is supported by the evidence of complaint such as it is and the tendency evidence upon which the Crown relies. If I were not satisfied beyond reasonable doubt that the complainant in each case was both honest and accurate in their account, I accept that I could not find the accused guilty, and that I would therefore be required to consider their evidence carefully to ensure that it met the high standard required in a criminal trial.

108. I am satisfied that I have done so when considering the thorough submissions made on behalf of the accused when taken to aspects of the interview in which SO participated. I took the time to review the transcript of that interview and to view the presentation of the complainant.

109. I have also reviewed the presentation of the complainant TO in her interview with reference to the transcript provided as an aide memoire.

110. I am satisfied beyond reasonable doubt that they were truthful in their assertions and accurate upon the essential matters required of the Crown.

The Evidence

111. The evidence did not entirely match the points summarised in the opening address to which I referred on the last occasion. There were differences in the evidence given by the adults called from the complainants’ family. The evidence from the children, of course, consisted of the interview in which they participated with the JIRT officers and the evidence that they gave in the first trial, including cross-examination. That evidence insofar as this trial is concerned remained constant with what was presented from the children in the first trial.

112. I did not find any of the witnesses to be lacking credibility, but accuracy upon the detail of their respective memories might have suffered from the limitations burdening the mother and the grandmother and the usual vagaries of memory that will afflict every witness required to give their recollections of events that occurred after a significant passage of time. In this instance, these witnesses were required to recall events in their evidence led before me in April of this year addressing allegations made in 2016.

SO

113. Although she is the complainant in count 3 and count 4 alleged to have occurred within a timeline after the event alleged by TO, she was the first to complain. The Crown led her evidence first in the trial. The procedure followed was to play the first portion of her evidence in the previous trial and then play the recording of her interview with the investigators and then to play the balance of her evidence recorded from the first trial.

113. The interview was when she was aged four years. The recording was accompanied by a transcript for use as an aide memoire and diagrams representing a female and male child upon which the complainant made marks. It was exhibit B. I accept the evidence she gave that the accused penetrated her genitalia as she described and as she depicted in her interview.

114. As one might expect with a child of this age, her perception of time was limited. She knew her age to be four but did not know her date of birth, the day of the week, or where she was. She understood that if someone told a lie they would go to gaol and though she said she did not know what truth is, she understood that to say she had travelled to the location on a train was to her mind a lie because she travelled there with her mother and her nan. When asked, she said she did not know what she was there to talk about. She demonstrated apparent boredom and disinterest on occasions and restlessness as she lay over the lounge chair that she occupied. She spoke of wanting to do other things in the course of the questions to her. However, her answers to questions about her hair and her body and who touched her in those places were spontaneous and responsive. She identified her genitalia using the diagram before her and attributed to it the name “Minnie” which the evidence establishes is the term she used for it. She identified the purpose it had for urination.

115. After she told the detective that the doctor had touched her “Minnie”, she was asked at question 118, has anybody touched her “Minnie” to which she replied “No”. She attended the doctor for examination after the disclosure of the allegations before she attended for the interview.

116. At question 152 and following, she spoke of the attendance upon the doctor and the “two girls” which I accept to have been a reference to Dr Tran and the sexual assault counsellor at Liverpool Hospital. She spoke of the doctor hurting her “Minnie”. At question 177 and following, there were questions regarding her family in which the detective asked about her grandma. She said she did not have a grandma but that she came there with her Nan who lived at Muswellbrook. This I find was a reference to her great grandmother, Anne, who was at the time living at Muswellbrook.

117. Later in the interview she identified her grandmother as Nanny O which I find was reference to Leone. This apparent misunderstanding of these relationships in the mind of the detective was I find addressed in the answers given by SO in this sequence of questions. She referred to her sister Trisha in response to which the detective advanced the name Patricia. The child I find was referring to her sister TO and was simply misunderstood.

118. The following responses I quote.

Question 236:

“Do you know a boy named Darrell?

A. Mmm.

Question 237:

“Do you know a boy named Darrell?

A. Yeah.

Question 237:

“- or a man, a man called Darrell?

A. Yes.

Question 238:

“Yeah, tell me about Darrell? Who’s Darrell?

A. He, he did this to me.”

120. At this point she placed her left hand beneath the waistband of her shorts at the point of her left hip.

Question 239:

“He did what, what did he do to you?

A. He did this, under my...

Question 240:

“On your hip?

A. No, here. And under the undies.”

121. At this point she placed her right hand inside of her shorts at the front of her genitalia.

Question 241:

“Under the undies? Can you tell me what, tell me everything that happened from the beginning to the end?

A. And he got his doodle out, that’s all.”

Question 242:

“Okay. So tell me a bit more about when he, you just showed me that he, he put his hand in your pants, is that right?

A. Yes.”

Question 243:

“Yeah and was it under the clothing or was it on the outside of your shorts or the inside of your shorts?

A. Inside my shorts.”

Question 244:

“Okay and what about your underpants, was it on the inside or the outside?

A. Inside.”

Question 245:

“Inside and what did he use to touch your inside?

A. Mmm?”

Question 246:

“What did he use to touch your inside?

A. Hand.”

Question 247:

“His hand. Okay. And what did he do with his hand?

A. Rub it.”

Question 248:

“He rubbed it, yeah. And--

A. He rubbed last one...couldn’t do that.”

Question 249:

“That’s right, yeah?

A. That’s rude hey?”

Question 250:

“That’s very rude, yeah.

A. But that’s not the doodle.”

Question 251:

“No. Okay. So he put his hand in your pants and rubbed it, did he touch the inside?

A. Inside.”

122. She was then given the diagram and on it she marked where the accused touched her and the interview then continued at question 268:

“Okay. One more minute. So when you said Darrell touched you on your “Minnie”--

A. On my “Minnie”.

Question 268 again:

“--did he touch you on the inside of the “Minnie” or the outside of the “Minnie”?

A. Inside the “Minnie”.

123. She here demonstrated with both hands over her genitalia over the shorts.

Question 269:

“Inside the “Minnie”. And what, what did he put inside your “Minnie”?

A. His hand.”

Question 270:

“His hand. And what did he do with his hand?

A. Inside the “Minnie” and rub it”.

124. She here placed her right hand on her genitalia. She said this occurred inside Nanny O's house in Janet’s room and that there was no one else in there at the time. She said that others were out the back until “my mum’s gone out”.

125. At question 290 she described the accused exposing his penis.

Question 297:

“So you said to me that Darrell showed you his doodle, can you show me on the boy what you mean by doodle?

A. (No audible reply).”

126. When the recording was played, I did not understand the entirety of her response to this question but I heard her say “he do this” and about this point she demonstrated with her right hand held to the front and the left hand behind it in the area in front of her genitalia, consistent with the positioning and presentation of the penis on a male. In response to question 298, she answered:

“And he said touch it. I am like, I didn’t listen to him”.

127. At question 307 she was asked where on the diagram of the male child was “Darrell’s doodle?” and she marked on the diagram a line extending from crotch area toward the bottom of the edge of the page.

128. I have not overlooked that the description of this misconduct followed question 118 earlier in the interview when she said “No” to the question: ‘Has anybody else touched your “Minnie?” and the exchange at question 200 when she said nothing happened at her Nan’s house. But with the clarification of the confusion apparent in the mind of the detective regarding the family members, provided by SO whose “Nan” lived at Muswellbrook, where there was no suggestion of wrongdoing by the accused, and that her “Nanny O” lived at Leumeah, her answer to question 200 I find to be reliable.

129. I find the context in which she was asked question 118 was the examination at the hospital, and it is reasonable to conclude from those circumstances that she was responding to the question with regard to the examination and consultation by the doctor and to the sexual assault counsellor.

130. Moreover the terms of her description of the context of these events and the conduct with which the accused is charged, the manner in which she spoke, the spontaneity with which she described the accused’s conduct, and her demonstration of what she suffered leaves me in no doubt that her description of what occurred was both accurate and truthful and that what she said in the interview was the description of the penetration of her genitalia by the accused using his hand.

131. The proposition that she was in some way programmed or cajoled into making this representation in the interview I find untenable. It would require a measure of sophistication of the mother, grandmother and great-grandmother which I find simply did not exist, sufficient for them to combine in the nefarious purpose suggested of them and to coach and cajole a four year old child within a relatively narrow timeframe so that she could present such a compelling account of the misconduct she described.

132. I do not find that these women were more sophisticated than they appeared to me, such that they might be suspected to have the capacity to combine to achieve this purpose. I could not find that they did so when I consider the presentation of this four year old as she recounted these events. There was no hint of any characteristic in the child’s evidence to suggest that she ought to be doubted.

133. After the recorded interview was played, the Crown asked limited questions before surrendering the child for cross-examination, which was in due course deferred until the next sitting day. Overall it was quite brief occupying four pages only. The questions asked of her I would suggest could have been structured more carefully bearing in mind her age, which at the time of her evidence was six years. She was born late in 2011 and her cross‑examination was on 1 February 2018.

134. The case for the accused was put to the complainant in the following exchanges in the first trial transcript beginning at p 71 line 33 and 42 and p 72 beginning at line 37.

“Q. Darrell didn’t hurt you, did he?”

The question was rejected, properly.

“Q. Darrell didn’t touch you, did he?

A. Can’t remember.”

135. After the child was permitted to use the toilet, the questions resumed.

“Q. Did someone tell you to say Darrell touched you?

A. Yes.

Q. Who was that?

A. Darrell.

Q. Darrell told you to say that he touched you, is that right?

A. Yes.

Q. Did you ever tell someone that Darrell touched you?

A. No.

Q. That’s because Darrell didn’t touch you, is that right?

A. No.”

136. There was no effort to clarify the last of these questions, perhaps relying upon the context provided by those preceding it, but to the extent that it might be read as a denial of a proposition that Darrell touched her, I do not accept that her response intended to be a denial that he touched her in the manner upon which the Crown relies for this prosecution.

137. Although these questions were asked of the child on the day after her interview was played in circumstances where she could watch the presentation, the questions posed did not provide sufficient context to allow her to focus upon what circumstances the questions were intended to address. I have brought to account her age and the extent to which she was distracted from time to time in the interview and in the course of her evidence reflected in the transcripts of both and upon the visual presentation. Moreover, the questions as framed excited an answer that may be read as a denial of a proposition asked in the question. There is nothing in the cross‑examination to cause me to question my assessment of the complainant’s evidence which I accept proved the offence against her of which I find the accused guilty.

TO

138. TO participated in an interview with investigators on 3 February 2017 when she was aged eight years. She was born early in 2009 and had not long before the interview had her birthday. I found her credible. She presented without any hint of guile. Her answers were almost entirely spontaneous and on the two occasions when it appeared that she paused in her answer, it was brief and consistent with her considered response. Her answers were throughout responsive to the questions posed.

139. At p 3 of the transcript she was given information about the recording process including that the officer conducting the interview had assistance from another not present in the room but who could communicate with him through the earpiece he wore. I note the following exchange:

Question 33:

“She would be looking at you now, yeah. Is it okay if we just have a chat and it’s recorded?

A. Yeah.

Question 34:

“Okay.

A. But don’t show anyone.”

140. This on its face is an acknowledgement or understanding that what she might say in the interview was not to be shown to anyone else, but there is no indication of her understanding of why this should be or who guided her in that respect. It is consistent with the responses later in the interview about how she became aware that something had happened to her sister without any information of what that was.

141. At question 42 and following she provided answers which made clear her understanding of the obligation to be truthful and the consequences that would flow if she were not. At question 85 and following she was shown the front page of a representation of a female child naked. She identified body parts on that document including the genitalia to which she referred as her “rude part” which she used to go to the toilet. She referred to her stomach in earlier responses.

142. The following exchange occurred at question 98 and following:

Question 98:

“Go to the toilet, okay and does anyone touch you there?

A. Yes.”

Question 99:

‘Yeah. Who touches you there?

A. Hmm, I don’t know this boy’s name but it’s somebody...a boy.”

Question 100:

“A boy, okay. And do you remember what this boy looks like?

A. No.”

Question 101:

“Okay and is he, a short boy or a tall boy or something else?

A. He’s a dad.”

Question 102:

“He’s a dad. Okay. And what does this boy, does a dad look like?

A. I forgot a long time ago.”

Question 103:

“A long time ago. And where did you know this boy that’s a dad?

A. Mmm, ‘cause at...so I can’t, that was her friend like...and um--

Question 104:

“...was that your nan’s friend?

A. Yeah.

Question 105:

“Yeah?

A. Nanny O.”

Question 106:

“Nanny O?

A. Yeah.”

Question 107:

“Is that what you call nan, Nanny O?

A. Yeah. Yeah, but that’s the step nan”.

143. TO continued with responses that she was visiting the unit of her Nanny O. At the time Nanny O lived in a block of units. She could not remember the colour of the boy’s hair. He was bald and he had a beard, he was fat. When she understood what a tattoo was, she said:

“He did not have no pictures.”

144. Commencing at question 118, she described the offence upon which count 1 is charged:

145. Question 118:

“He had no pictures, okay. Okay. So I wasn’t there when this man that’s a dad touched you on the private part. Can you tell me everything about it and from the start to the finish?

A. Uh, yes.”

146. There was a slight pause before that answer and she raised her hands to her face momentarily.

147. Question 119:

“Yeah. So when it happened, did you have clothes on or off or something else?

A. Clothes on.

Question 120:

“Clothes?

A. On.”

Question 121:

“On?

A. Yeah.”

Question 122:

“Yeah. Okay. And then what happened?

A. And then um...then I was trying to stop him but he put down my pants.”

Question 123:

“Okay. You tried to stop him. Yeah. And what was he doing, what was he trying to put down your pants?

A. He touched my rude.”

Question 124:

“Sorry.

A. He touched my rude part.”

Question 125:

“He touched your rude part. And what was he using to touch your rude part?

A. His fingers.”

Question 126:

“His fingers. Okay. And was he touching your rude part on the outside of the clothes or on the inside of the clothes?

A. In inside of the clothes.”

Question 127:

“Okay. And do you remember what he was doing with his finger?

A. No.”

Question 128:

“Okay. And did he touch you on the rude part or, or not touch you on the rude part?

A. He touched me on the rude part.”

Question 129:

“Okay. Yeah. And can you remember what he was doing when he touched you on the rude part?”

148. There was no audible reply to that question but I noted that she turned her face away briefly.

Question 130:

Q. Did he say anything to you?

A. No.”

Question 131:

“No. Okay. Did you say anything to him?

A. No.”

Question 132:

“No.

A. But yes, I said, ‘stop’”.

Question 133:

“You said ‘stop’?

A. But he will keep doing it and doing it.”

Question 134:

“Keep doing it. And do you remember if his finger was on the outside of your rude part, on the inside of your rude part?

A. Inside.”

Question 135:

“Inside. And where was everyone else?

A. They were at home.”

Question 136:

“At home. In the unit in, in your Nanny O’s unit or somewhere else?

A. It was upstairs.

Question 137:

“Upstairs, okay?

A. In his house.”

Question 138:

“In his house. Did he live with your Nanny O in her unit or in another unit?

A. In another unit but it’s the same like unit but upstairs.”

Question 139:

“Yeah. Upstairs. Okay. So when you were in his unit and he was touching you on the rude part. Who else was home in his unit?

A. Um, Nanny O was having a shower downstairs.”

Question 140:

“Downstairs, okay. And was she having a shower in her unit or in his unit?

A. Ah, having a shower in her unit.”

Question 141:

“Okay and what made this stop?

A. I was trying to say stop.”

Question 142:

“Yeah. Yeah.

A. But he wouldn’t.”

Question 143:

“Yeah.

A. So I just went downstairs.”

Question 144:

“You went downstairs?

A. To Nanny O.”

149. She said that when she went downstairs she did not say anything to Nanny O. She said this happened on a couple of times. She said it was in the school holidays.

Question 156:

“So you know how you said you’re eight now?

A. Yeah.”

Question 157:

“Do you remember how old you were when this boy touched you on the rude part?

A. Ah, yes, seven.”

Question 158:

“Seven, okay. And how do you know that you were seven?

A. Because it wasn’t my birthday but when I got back from home, um, from Nanny O’s. I went home and then it was my birthday the next day.”

Question 159:

“Okay.

A. I’m...

Question 160:

“And you turned seven?

A. No, I turned eight.”

150. She did not have a birthday party because she had been in some way naughty and had hurt her mother’s feelings. At question 168 she was asked whether this person touched her anywhere else. The detective took the image of the naked girl and turned it over to show the image of the rear of a child. She identified the image of the “bum” and described what it was for and marked the diagram.

151. At question 167 before the diagram was turned over, she said that the person did not touch her anywhere else, but after she had marked the rear side of the diagram and identified the “bum” as she named it:

Question 170:

“...and did the boy who is a dad, did he touch you there?

A. Yes.”

Question 171:

“Yeah. And when, and how did he touch you there?

A. Cause, um, cause I was having a drink and then he tried to pull my pants down and I said, ‘stop, stop, stop’.”

Question 172:

“Yeah. So he tried to...keep doing it a couple of times.”

Question 173:

“Okay. And was the same time that we talked about when he touched you on the rude part there or a different time?

A. Ah, um, a different time.”

Question 174:

“A different time. And where were you this time?

A. I was still at Nanny O’s.”

Question 175:

“Nanny O’s, yeah?

A. I, sorry, came back--“

Question 176:

“Yeah.

A. --to Nanny O’s after my birthday.”

152. The word “after does not appear on the transcript but it is to be heard upon the playing of the recording.

Question 177:

“Yeah.

A. --and I...because she had presents for me.”

Question 178:

“Yeah, yeah.

A. I got a lot of presents.”

153. TO continued to describe this conduct in her responses from question 179 describing that she was having a drink of cordial when he pulled her pants down, that she tried to stop him but he wouldn’t, and that he pulled down the undies that she was wearing. He “touched her” with his finger: question 184.

154. She described having seen the person without clothes on. She saw his “rude part” when he had his clothes half off, his pants pulled down to his knees without a shirt on. She marked the “rude part” on a diagram of a male anatomy.

Question 192:

“Okay. And tell me what happened when you saw his rude part?

A. And then, um, he...I said, ‘no’, and I said, ‘don’t do that’ but he’s doing it, then I went downstairs.”

155. There was a portion of this answer that could not be heard on the recording but in the next question the missing representation appears to have been addressed:

Question 193:

“And he, did you say he poked it?

A. Yeah.”

Question 194:

“What was he doing with it?

A. He’s poking it out.”

Question 195:

“Poking it out. Okay. And did you touch his rude part?

A. No.”

Question 196:

“No. Okay. And what was he doing with his rude part when he was poking it out?

A. He was...um, I don’t know what he was going to...don’t remember, I can’t remember what he had done.”

Question 197:

“Okay. All right. And did his rude part that was poking out, did he touch you with that?

A. Um, no.”

156. She said that this occurred at a different time.

285. Counsel submitted that I must heed a number of warnings and directions in relation to the evidence to prove the offence in count 3. These did not include what is known as the “Murray direction”, which counsel submitted did not apply any longer in such as these proceedings.

286. Counsel turned to the JIRT interview conducted with SO described as the primary evidence upon which the Crown relies. Counsel submitted that I would need to be satisfied beyond reasonable doubt that the complainant was telling the truth, relating matters which in fact happened. Counsel submitted there were substantial problems with the evidence both internal to the evidence and external. Counsel noted that the interview was on 27 October 2016 and that the offence on the Crown case occurred on one or other of the preceding days. Counsel submitted that this was remarkable that with regard to such an event, for it must have been fresh in their mind at the time of the complainant’s interview. It was noted that she did not refer to the accused until question 236 when prompted with a question:

“Do you know a boy called Darrell?”

293. Counsel noted that by that stage in the interview, she had identified parts of her anatomy including her “Minnie” at questions 58 to 110, had been asked if anyone had touched her on the “Minnie” at question 112 and volunteered the answer:

“The doctor did.”

294. She did not mention the accused or anyone else at that point. She did not provide details of the complaint until question and answer 236 but did so then when she was prompted. She was asked if anyone else had touched her on the “Minnie” at 113, 117 to 118 and she said, “No”.

295. Counsel noted that she then gave an account of what the accused allegedly did with her demonstration and showed her his “doodle”. She did not know where she was when the accused allegedly touched her “Minnie” in her answer to question 274. She was asked the leading question from the officer at 281:

“And were you, what room were you in?”

296. It was said that the fact of that being in a room had not yet been established in the interview.

297. Counsel submitted I would direct myself upon the nature of this as a leading question administered to a very young child. The nature of the warning I would be required to give was not further explained as I recall though I expect it would have been suggested that I should attribute little weight to the response.

298. However, first I do not hold that this was a leading question. Moreover, the significance of the answer elicited and why I might attribute to it limited weight with regard to the room in which it is said the misconduct occurred is not clear.

299. The other criticism of the specific questions and answers and the point at which the complainant nominated the accused does not include reference to the significance of the age of the child and the care required when these trained investigators are eliciting what such a complainant has to say to ensure to the extent possible fairness and reliable responses from the subject of the interview; by that I mean fairness to the accused.

300. They were dealing with a young child who has not given and would not be expected to give a narrative of events as might an adult when speaking to the incident under consideration. The process followed, quite properly in my assessment, was to ask questions without suggesting answers to the subject regarding allegations. I have no criticism of the manner in which the interview in either case was conducted.

301. Counsel pointed to the question at 283:

“Who else was in the room when this happened?”

and her answer:

“I don’t know, mum and dad”.

Then she said at question 284:

“My mum, that’s all, and J.”

302. Counsel referred to the question when she was asked if she was inside or outside the house. She said: “Inside”. At question 326, counsel asserted that he might have also heard something to the effect of, “out the house”. Counsel noted that it is the recording that is the primary evidence.

303. I understand the submission to be consistent with the direction one must accept that the recording is the evidence and the transcript is an aide memoire, and that where there are differences one attends to the recording. Perhaps counsel was recalling what he heard at question 283 and following when SO said that there was no one in the room when the accused touched her and that they were:

“Out the back...till her mum’s gone out.”

304. Counsel referred to question 290 about seeing “the doodle” and her response, “I don’t know”. At question 301 she was asked but was unable to say what “the doodle” looked like. The answer to question 290 was not responsive upon its face; the reason for that is not clear from the transcript. There is no exchange that might demonstrate what SO’s perception of the question was. The criticism of her response and what she said in answer to question 301 was not illuminated in cross-examination or in the submissions to me. I understand it would be that her answers should be seen to be unreliable if not untruthful and inadequate for proof of the fact that the accused exposed his penis which is part of the Crown case.

305. Counsel submitted that more troubling was that the complainant did not know where “the doodle” was located on the diagram of the boy, reflected at question 304 to 311 in the course of which she nominated the “belly button” and circled and coloured that area. It was said that Senior Constable Beckett, the officer in charge of the investigation, confirmed this in her evidence and the transcript, exhibit G at p 172 to line 30 to 42.

306. I reviewed the diagram and the evidence. I do not accept the submission. The evidence simply notes what is marked on the diagram which includes not only the colouring of the belly button but also markings leading from that point down toward the feet on the diagram.

307. Counsel submitted that what was confusing was her account that “the doodle” was “the Minnie”. Counsel referred to question 309 of her interview. Counsel submitted that if the accused did show her his penis, if he did take it out and asked her to touch it, the complainant should have been able to nominate its location on the diagram of the boy, and it was said the fact that she could not do it would raise a reasonable doubt in the Court’s mind as to whether the offence occurred.

308. I do not accept the submission; that she did not know the name for a penis unsurprising at her age. In any case, her specification of the location in the manner followed in the interview is not necessarily inconsistent with the male anatomy when one considers the age of this child. Counsel noted that the evidence of Senior Constable Beckett in relation to the markings on the diagram was surprising; he said the only clear evidence in this case about what markings she made.

309. The decision of counsel not to ask questions of the complainant in the first trial on this point was perhaps forensically made as no doubt was the extent of the cross-examination of the police officer, which I would suggest does not bear comfortably the description of clear evidence upon this question when it is read with the questions asked. I note the following exchange at p 172 of exhibit G from line 30:

“Q. You asked SO to mark on that where the boy’s doodle was?

A. Mm-hmmm.

Q. She’s marked only the belly button, is that right?

A. There’s three marks on there. There’s the line that goes down there, there’s a mark there, there’s a mark there, so she has marked three.”

310. The questions that followed were with regard to the colouring of the belly button and that this was the only thing she was asked to mark. There was no further clarification sought regarding the other markings identified by the senior constable.

311. Counsel then noted what he said was a very peculiar quality to the account given by SO. At different points she said in effect that she knew what this person did was wrong and also in effect protested. At question 249 she said the act of touching her “Minnie” was rude. This is transcribed in the form of a question:

“That’s rude, hey?”

312. At question 312 she said that when the person touched her “Minnie”, she felt sad. At question 314 she said to this person, “You’re a naughty boy”. However, at question 317 she said that she did not say that. She said she did not look at this person when the alleged act occurred because she “closed all my eyes”. See questions 320 and 322.

313. Counsel then posed rhetorically the question “why?” He answered, because what he had allegedly done was wrong; that is the clear implication. The difficulty with this is that no such question was asked of the child. The question appears to be entertained by counsel, posed by him in terms of why would she want to close her eyes, the answer to which he opines must be that she knew what he was doing was wrong. Upon this hypothesis, counsel then asks how a four year old girl knows that any of the acts if they occurred were rude. Why was she sad? Why was the person, the accused, a naughty boy? Why would she close all her eyes as if to shield from some depravity that she knew was depraved.

314. Counsel then asks that if she knew this at the time, why then did she not make an immediate complaint, why did she not run to her mother or to her nan or Nanny O or Janet and say, “Darrell is a naughty boy...” or “Darrell did something rude.”

315. If these propositions were advanced to the complainant in cross‑examination, the evidence elicited would be met by s 294 Criminal Procedure Act 1986. This provides:

1. This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest—

1. an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

2. delay by that person in making any such complaint.

2. In circumstances to which this section applies, the Judge—

1. must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegations that the offence was committed is false, and

2. must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making¸ or may refrain from making, a complaint about the assault, and

3. must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

316. I do not recall that any of these propositions suggested rhetorically were put to the complainant when she was cross-examined in the earlier trial. To the extent that they are relied upon, the purposes of the provision are clear recognition of the circumstances which attend the victims of such misconduct and particularly so in the case of a child of the age of SO at the time of the alleged misconduct upon her.

317. In the course of submissions made toward the end of the day, the Crown also took me to s 293A Criminal Procedure Act and I shall give myself warning in terms of that provision when I respond to what was there said to me.

318. The submissions though might be read to have the purpose of suggesting that her answers were not credible or reliable because if she knew what was happening was wrong, which the Court would not accept in respect of a child of this age, why she did not immediately complain, and the fact that she did not provides a basis for the proposition that she did not know that this was wrong, with the consequence that her representations ought to be rejected.

319. This is a rather convoluted proposition and I do not accept it if it reflects the essence of the submission made, which appears to be so from what followed when counsel added:

• The complainant was a four year old girl, and

• If the facts of the sort alleged occurred, a girl of her age would not have appreciated the fact that what was done to her was wrong, and

• Would have no idea it was rude, and no idea that the person who did it was a naughty boy.

320. It was submitted that these are not concepts of a four year old girl and if these acts had occurred, an account would have been given without the commentary of rude, naughty and sad.

321. I noted that these representations were at the point of the interview when she made the assertions of wrongdoing in response to which counsel submitted that they excited a possibility that the ideas may not be her own and if that follows, then can the Crown exclude the possibility that she was not at least unconsciously reciting propositions that she agreed to in the series of questions asked.

322. In the course of the argument I suggested that there were two aspects to this. There is the argument that she was reciting propositions of misconduct, and also reciting her perception regarding such conduct. Counsel reminded me that the accused had no onus of proof and that is clearly correct. Then our discussion continued.

323. I noted that these representations were after the alleged events leading to notification to police, the police attending, and the child then taken to the JIRT office for the purpose of the interview in which the representations were recorded. The perception of wrongfulness was expressed at the time of the interview, not at the time of the event for which the interview was being conducted. Counsel submitted that one belonged to the other and that one does not close the other but opens the other possibility up. The idea that the accused had rubbed her “Minnie” it was submitted, was an idea provided to her at the same time that the act was shown to her to be naughty or wrong. Counsel said he would come back to further develop this point.

324. I find that there is no evidential basis for this reasoning, which rests upon conjecture that this child would have been programmed to present a description of misconduct, directly or by suggestion. It is advanced as a possible explanation, as I understand the submission, for a small child to have an understanding of such matters that one would expect in someone significantly older.

325. I am not satisfied that at her age she could have been programmed to present as persuasively and consistently as she did in her interview and the cross-examination in Court, limited though that was.

326. Counsel suggested the possibility that the mother and the great grandmother told the child what to say, even in light of the absence of sophistication in these witnesses to which I pointed, but there was also the possibility it was said that as such it was spontaneously wrong to hear the word “Minnie” and the allegation of rubbing it out of context in the course of the interview, which might suggest that she had spoken about that previously and wanted to get her ideas out as recorded at questions 305 to 307 in the interview. Counsel referred to the questions and answers but appears to have misquoted them. The exchange in the interview is transcribed in the following terms. Question 301:

“Q. Okay. And what did his doodle look like?

A. I don’t know.”

Question 302:

“Q. You don’t know. Okay. And what made it stop, what made everything stop?

A. I don’t know.”

Question 303:

“Q. You don’t know?

A. Red.”

This was a response about the colour of the pen or pencil for her use.

Question 304:

“Q. Red. So on the boy can you show me, what part Darrell showed you? You can use the purple one?

A. I want the pen.”

Question 305:

“Q. You want the pen?

A. I like the purple one.

Q. Okay. Well, you show me on the boy?

A. Okay.

Q. And what, what part of the, of Darrell did you see?

A. Minnie.”

Question 306:

“Q. The Minnie is what you call it?

A. And rub it.”

Question 307:

“Q. But you said that you saw Darrell’s doodle. Where on the boy is, was Darrell’s doodle?”

SO is then seen drawing lines on the diagram:

“A. I don’t know.”

327. The submission failed to refer to an earlier exchange relevant to this which followed a presentation to her of the diagram of the male child. Question 295:

“Q. This is, what is this a picture of?

A. A boy.”

Question 296:

“Q. A boy?

A. That can be my brother.”

Question 297:

“Q. That can be your brother. Yeah. So you said to me that Darrell showed you his doodle, can you show me on the boy what you mean by doodle?”

328. There was no audible reply. However, the child provided another demonstration, after I heard her say, “He do this”. She had her right hand forward and her left hand behind with the fingers on the right hand extended out and down from her crotch area consistent with where one would be expected to see an exposed penis.

Question 298:

“Q. Okay?

A. And he said touch it, I’m like, I didn’t listen to him.”

329. The exchange should be read with the answers by SO which show that she did not have a name for the penis other than the word “Minnie” which she used for her genitalia.

330. Careful reading of the transcript with the benefit of observing SO as she gave her answers leaves me in no doubt that she had not spoken of misconduct out of context at any point.

331. The submission continued in terms that the Court could not be satisfied that SO was telling the truth at this stage in her development and referred to the questions put to elicit her understanding of the concept of truth and lies. I have read the transcript and watched the recording in light of the submission. I do not accept it.

332. Counsel referred to SO’s evidence in Court, the transcript of which is exhibit A. It was said that the passage of time does not resolve the anomalous nature of her evidence, compared to the account she gave in the interview. Counsel reminded me that she was asked if she had told the truth when the police lady had asked her questions and that she then said she did not know why she was in Court. She had no memory of what she said to the police officer. I was taken to p 69 line 35 of that exhibit.

333. I was reminded that at first she did not reply when she was asked if she knew a man called Darrell but later said at p 70 line 1 that she knew a man called Darrell but could not describe Darrell, forgot his hair but could remember his skin. She said she was given jelly beans and lollies, consistent with what the accused said in his interview about what occurred when SO came upstairs. She could not remember if the accused had touched her, at p 71 line 44; she did not understand the expression “flashed his doodle” at p 72 line 26.

334. I do not understand the significance of the adverse remark counsel made about that response. It was said that she gave rather curious evidence at p 72 line 31 and when counsel read this part of her evidence, he acknowledged the ambiguity which I find was the product of the formulation of the cross‑examination delivered. I summarised this earlier.

335. The cross-examination of which I had the benefit of hearing included questions of this young child which were of questionable form interspersed with pauses, sometimes of length, which I find must have had an impact upon such a witness, of such tender years, describing events well after they were said to have occurred; this cross‑examination was 18 months after the event.

336. I invited submissions upon whether there was anything in her demeanour, leaving aside the text in either the interview or when she was giving evidence that would impact upon my assessment of her credibility. The submissions in response included that she really did not know why she was in Court when she gave evidence, which was a reference to the text. I again spoke of her presentation and whether there was some aspect of the way she presented, and reminded of the standard direction one gives a jury that they take note not only of what is said by a witness but how the witness presents in the course of evidence, particularly when being cross‑examined. I asked whether there was any aspect of her presentation either in the interview of in the course of the examination or cross‑examination that might inform the decision required about her credibility. Counsel sought the opportunity to process this and I invited counsel to return to the topic after the luncheon adjournment. Counsel acknowledged that this was a matter to be considered together with all of the evidence and said that if this misconduct occurred, the events would have been imprinted on the complainant’s mind.

329. I reminded counsel of the accused’s demonstration in the course of his interview where he showed where SO was on his lap, and how she tipped herself back he said, which he demonstrated by putting his arm out as if to catch her. The implication that could be drawn noting that he did not say so expressly, was that his arm had gone down between her legs, to catch her and support her so she did not fall. Counsel suggested the demonstration was to show that he had touched her in the area of her waistline. I reminded counsel how he demonstrated with his arm in a scooping action. Counsel reminded me that elsewhere he indicated that he might have touched her on the hip area and submitted that he was obviously trying to make sense of the allegations that had been made against him and that these responses were in no way admissions against his interest.

330. I said:

“But I’m just concerned with the acknowledgement that he offered in the interview and his demonstration which suggested that he had to prevent the child from falling, perhaps injuring herself - that’s the implication, I think - he scooped his arm down and took hold of her, which seemed to me to be a representation that his hand or arm had gone out underneath her to catch her to prevent her from falling.”

339. Counsel reiterated that this was not an admission that he touched her under her clothing.

340. I referred to the context of the submission about this being such behaviour that it would have been imprinted on SO’s mind, but added the context of what the accused said of interaction with the child taking hold of her in some circumstances. I invited counsel to consider what might be significant in the accused’s description of when he grabbed her so from falling, with regard to the child’s immediate reaction to the misconduct that she described, if there was such misconduct, and her response to it. The submission was that to fondle the child’s genitalia and insert his finger was of such moment that she would have it burnt into her memory and would not have forgotten it.

341. Counsel then reminded me that there was no dispute that SO remembered being in the accused’s unit, acknowledged by the accused in the interview. She remembered getting lollies and jelly beans, also consistent with what the accused said, and had a memory of seeing a female doctor on one day. Counsel then posed the question; did she remember seeing the lady doctor because of what had occurred at the hospital?

342. The submission continued, if these propositions were of mutual value in the assessment of her allegations, the question is how she came to the knowledge and understanding revealed in her interview. Counsel reminded me of the evidence of the interactions between the accused and the complainant observed by Leone and others, and that she saw SO and the accused sitting out on the balcony and told her to hop off but she did not do so. She observed that SO had her arms around him and confirmed also that she was showing him affection. The evidence from Anne included her seeing SO on his lap and that SO got off after the second time she had been told to get off.

343. Counsel submitted that the Crown was incorrect in submissions upon opportunity and continued that the issue did not turn upon whether Janet was always at the unit, for she might not have been there all the time, but upon whether Janet and other members of the family were present when the accused came downstairs to see Leone. Leone said that they were present at p 141 line 48 of the transcript. This was in reference to the unit where it was alleged that the offence occurred.

344. Counsel then summarised the evidence from Anne-Marie attending appointments, when she left her children in the care of Leone and Janet and her companion. Not entirely surprising it was said in view of her cognitive difficulties. Leone agreed that she went to Coles with the accused on Wednesday and indicated that SO did not go with them. SO was a four year old girl and would not have been left alone when Leone went to Coles with the accused.

345. The submission then continued, as I understand it, developing the proposition that upon what had been said the accused could not be shown to have come and gone to Leone’s house as he pleased. She acknowledged in her evidence that he did not have the run of her house and that each time he came he knocked at the door and she would admit him. Counsel said how could an offence of the nature described have occurred in those circumstances?

346. He then pointed to the body of evidence as he described it of the circumstances in which SO made the initial complaint against the accused and that this was how the idea had its genesis as I understand what he said.

347. It does appear, he said, to be the case that Wendy was the catalyst for all that followed, creating suspicion in the minds of the other adults which infected their perception and that the children in due course made their complaints and allegations.

348. He then asked me to apply the decision of Mahmoud v Western Australia (2008) 232 CLR 397 and referred to para [27] for the reason that Wendy was a witness who might have been expected to be called to give evidence and she was not called. This was not a proposition that burdened the accused because he had no onus of proof. The submission was made that I would take into account the absence of this witness when she had not been called by the Crown. I went directly to that proposition and said that upon any description that is available of these events, whether from the Crown case or from what the accused has said; there is nothing in what is attributed to Wendy or about her which suggests that there might be an exculpatory version of events available from her. Discussion followed upon this point.

349. The Crown Prosecutor reminded me of the inquiries made by the police officer to locate Wendy and the evidence given as to why she was not available to Court, but I continued with the following:

“What I am trying to say, I will direct myself about the absence of a witness. What I am going to direct myself about the witness who is not called, and from I have read, and from what I have heard from witnesses, including your client when he discussed her in the interview; it is not likely she is going to provide an exculpatory - there is no indication that she has exculpatory evidence to give; it is all likely to cause your client damage. So [I] do not attribute any weight to what she is suggested to have seen or said against your client. But how does it detract from the Crown case that she is not here?”

350. Counsel then reminded me that the accused was not party to the allegations but became aware of them. I then said:

“Mr Ramrakha, your point is this; I give myself a direction in accordance with the authority to which you have taken me; you have invited me to the paragraph in the bench book. There is a witness you might anticipate would have been called by the Crown, and that witness is not here. But what value would the witness mean in the proceedings (as I see), whether for the Crown or for the accused? The only evidence that I have regarding her is that she was a gossip, she wasn’t believed by Leone when she first became aware of what she said, but subsequently Leone accepted what she had to say. What she had to say suggested inappropriate behaviour by your client. And your client said in the interview that she was”--

and a little later:

“--a troublemaker and would visit some person in the complex just to get money from him or something to that effect.”

351. Counsel then asked me to consider that if she was called and did not say what was attributed to her, her presence might have some significance.

352. The Crown correctly in my view said that I could direct myself upon this authority but really to no avail because on any view what was attributed to Wendy was no more than inadmissible hearsay and in any case had no probative value in regard to the issues that are before the Court insofar as the interests of the accused were concerned.

353. I again returned to the authority and noted that no comment could be made about the failure of the defence to call the witness and that I was not permitted to embark upon conjecture to determine what this witness might have said had she been called, noting that as the matter stood, the evidence could not be presented in admissible form in the witness’s absence if it had any relevance in the proceedings. Counsel acknowledged that it was not known what the witness might say if she was called.

354. Ultimately as I understood what was said to me, I summarised the accused’s position with the proposition that if she was called, she might be more definitive as to when she saw and what she said she saw and when she called out and when she spoke about it to other people. Counsel responded, “Yes, and she might say it didn’t happen, I made it up but I said it at Tuesday night.” The Crown Prosecutor correctly submitted that I would be falling into error if I were to embark upon this direction in the terms proposed. I agree with that submission and I put that proposition to one side.

355. Counsel addressed me on the terms of what SO was alleged to have said. There was reference to evidence by witnesses who could not remember how many questions SO was asked. It was said that there was sufficient before me to conclude that there were leading questions posed that would detract from the reliability and accuracy of the allegations that SO made, with reference to the various pages of transcript of those witnesses, identified in light of their evidence.

356. I was asked to give myself a warning in relation to the evidence of complaint because it was elicited in response to leading questions. It was said that this was relevant to the possibility that SO was reciting the substance of questions that had been put to her. I was reminded of the triple-0 call made by Anne-Marie and when it was made and what had occurred previously prompting the need to call the police through the emergency line, which it is said stood in stark contrast to Anne-Marie’s memory of events.

357. It was submitted I should not accept the evidence generally of Anne. It was suggested she fabricated parts of her evidence. I do not accept that proposition. I accept that she was mistaken about aspects of it, though I do not find that she embarked upon fabrication in what she told the Court identified in what were thorough submissions which I do not intend to rehearse in their entirety.

358. Counsel pointed to aspects of evidence given by each of these witnesses from which it was said the Court would come to the view that it was at the very least possible that the accused was charged with these offences as a result of the misrepresentation and untruthfulness of the allegations made by these children. I do not accept that submission.

359. Ultimately I have decided this case accepting that there are aspects of the evidence given by the adult members of this family that challenge the accuracy of all they have to say, but which does not detract from my assessment of the credibility of the complainants who made their allegations against the accused. As I indicated, I found them truthful, and accurate with regard to the elements that the Crown must prove, and I do not accept that they were engaged upon the exercise for which counsel for the accused contends.

360. The proposition was put that I should warn myself in accordance with s 165 Evidence Act 1995. I was asked to direct myself in terms of Regina v Markuleski [2001] NSWCCA 290 in relation to counts 1 and 2 and also with regard to motive to lie.

361. I have already dealt with the proposition that I must decide the case with regard to the evidence relevant to each charge to determine whether that evidence establishes each charge to the criminal standard beyond reasonable doubt. I note the Crown submission that there is something of conflict between the Markuleski direction and the Court’s resort to tendency reasoning in accordance with the judgement by her Honour Judge Noman SC but on close analysis I do not believe that is so. The Markuleski direction does not detract from the opportunity that the Court has to consider the evidence relevant to each charge including the evidence of tendency that is available in the way that I have earlier described.

Conclusion

362. It is for these reasons that I have come to the view that the accused is guilty of the offences I earlier identified. The differences between the evidence led in the trial, and evidence led in the previous trial and statements provided by the witnesses in the course of investigation, subject to cross-examination and submissions, are unsurprising. As I noted, the mother, grandmother and great-grandmother are not sophisticated people. The grandmother, Leone, exhibited her limitations in her presentation as did Anne-Marie. All three exhibited emotion as the evidence was led from them, Leone and Anne‑Marie more than the great-grandmother. Their distress required the Court from time to time to adjourn to allow them to compose themselves.

363. The difficulties that arose were anticipated by way of an application by the Crown for their evidence to be adduced from locations remote from the courtroom.

364. As I said, ultimately the Crown case depends upon the findings to be made in respect of the evidence given by the children describing these events. I find that the children are credible, I accept as truthful in their core allegations made against the accused. I am satisfied beyond reasonable doubt that they were speaking truthfully and accurately when describing misconduct upon which the charges were brought.

Verdicts and Orders

365. I find the accused guilty of the offences as set out hereunder.

366. Count 1, between the first day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did have sexual intercourse with TO a child then under the age of ten years, namely six or seven years.

367. Count 2, between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did assault TO and at the time of that assault committed an act of indecency on TO a child then under the age of 16 years, namely six or seven years.

368. Count 3, between the 23rd day of October 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales [he] did have sexual intercourse with SO, a child then under the age of ten years, namely four years.

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Endnotes

Decision last updated: 07 April 2021