R v CP

[2022] NSWDC 125

District Court

New South Wales

Medium Neutral Citation:

R v CP [2022] NSWDC 125

Hearing dates:

14 July 2021; 1, 18, 19, 20, 21 January 2022; 21, 22 February 2022; 4, 5 April 2022; 22 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

I find the accused guilty of count 1 on the indictment. I find him not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment.

Catchwords:

Judge alone trial - Sexual intercourse- Indecent assault–– Consent – Historical offending during the course of marriage- Tendency evidence

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

Greenaway v R [2021] NSWCCA 253

R v Bauer [2018] HCA 40

Category:

Principal judgment

Parties:

Regina (Crown)
CP (Defendant)

Representation:

Ms S Beaumont (Crown)
Mr M Coroneos (Defence)

File Number(s):

2019/111137

Publication restriction:

Suppression order with respect to the names of the complainants or information that might identify them

Judgment

1. The accused is charged with one count of indecent assault upon ML contrary to section 61L of the Crimes Act 1900, six counts of sexual intercourse without consent upon SJ contrary to section 61I of the Crimes Act 1900 and one count of indecent assault upon SJ contrary to section 61L of the Crimes Act 1900.

2. The indictment reads as follows:

CP, between 12 June 1994 and 2 December 1996, at Hazelbrook in the State of New South Wales, assaulted ML and at the time of the assault committed an act of indecency on ML contrary to section 61L of the Crimes Act 1900 (Count 1).

CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 2).

CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900. (Count 3)

CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 4).

CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 5).

CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 6).

CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 7).

CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, assaulted SJ and at the time of the assault committed an act of indecency on SJ contrary to section 61L of the Crimes Act 1900 (Count 8).

3. The allegations relate to a time during the 1990s when the accused was the brother-in-law of ML and the husband of SJ. The accused and SJ separated in February 1999 and divorced in about 2000. Counts 1, 2, 3 and 7 are alleged to have taken place at the accused’s and SJ’s marital home. Counts 4, 5, 6 and 8 are alleged to have taken place at the accused’s sister’s home.

4. The accused was born in Poland in 1963. He emigrated to Australia in about 1981 and met SJ at Penrith Panthers nightclub the following year when he was aged 19 and she was aged 16. They married in January 1988. They had three children, a son born in 1989, a daughter born in 1991 and a son born in 1994. They had an active sex life throughout their marriage, which broke down acrimoniously. There were very bitter family law proceedings thereafter. The accused and SJ had very little to do with one another in the years that followed, although they could both attend the wedding of their son. Both remarried. SJ did not complain about the events alleged to constitute counts 2 to 8 until about 2019, and then to police, more than 20 years after the alleged sexual assaults.

5. I note that this matter was postponed on several occasions because of the Covid-19 pandemic. For similar reasons, the trial took place on several days, interrupted by long periods. I express my thanks to Ms Beaumont on behalf of the Crown and Mr Coroneos on behalf of the accused who have navigated the difficulties with good humour, and for the collaborative manner in which they conducted the proceedings.

6. For the purpose of considering the elements which the Crown must prove, in the context of this case, the elements have been agreed between Ms Beaumont and Mr Coroneos. The elements of each offence are found at Annexure “A” of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt.

7. The Crown case with respect to count 1 is that on one night when ML had been babysitting the accused’s children, and whilst she was in a spare bedroom with her own daughter, the accused walked into the room, placed his hand under the blanket and placed his hand onto ML’s vagina resting his hand on top of her underwear for a few seconds without her consent.

8. The Crown case with respect to count 2 is that on one occasion during their marriage, SJ was asleep and woke to find the accused’s erect penis which he was pushing into her mouth. She then pushed the accused away.

9. The Crown case with respect to count 3 is that on one occasion during their marriage, SJ was asleep and was woken by the accused’s penis penetrating her anus. She pushed the accused away and screamed at him. She alleges that she had previously told the accused that she never wished to have anal sex.

10. Counts 4, 5, 6 and 8 allegedly occurred on the same night. The Crown case with respect to count 8 is that a few weeks before separating (for a time) in September 1998, SJ and the accused attended a party at the accused’s sister’s house in Hinchinbrook. The accused and SJ stayed overnight on separate lounges in the rumpus room at the back of the house. SJ recalled wearing a nightie. After falling asleep, she woke and saw the accused standing to her right and felt his penis on her mouth as he was masturbating. She moved her head to the left and pretended to be asleep (count 4).

11. The Crown case with respect to count 5 is that the accused then pushed his penis into SJ’s anus. She laid on her back to prevent this happening again and pretended to be asleep.

12. The Crown case with respect to count 6 is that the accused then inserted more than two fingers into SJ’s vagina and began moving them in and out whilst rubbing her clitoris. She pretended to be asleep.

13. The Crown case with respect to count 7 is that the accused then put his penis into SJ’s vagina and laid on top of her and pushed his penis in and out of her vagina. She pretended to be asleep.

14. The Crown case with respect to count 8 is that on another occasion during their marriage the accused rubbed SJ’s clitoris and placed his fingers into her vagina whilst she was asleep. She woke up but pretended to be asleep.

Judge Alone Trial

15. Pursuant to section 133 of the Criminal Procedure Act 1986, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings on fact on which I rely.

16. In Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 the High Court stated that it is necessary for a judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached.

17. I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law.

Onus of Proof

18. Having brought the charge, it is the Crown who bears the onus of proving the charge. The accused is presumed by law to be innocent of the charges brought against him unless, and until the evidence satisfies the tribunal of fact that each and every element of the offence has been proved beyond reasonable doubt. If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements of the offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally without acting capriciously. It is necessary to bring into account when assessing the evidence, the common sense of the court and to deliver any verdict according to the evidence. The abovementioned principles of law must be applied to the facts as I find them to be.

Presumption of Innocence

19. It is, and it always has been, a fundamental part of our system of justice that persons tried in our courts are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is known as the “presumption of innocence”.

20. The expression “proved beyond reasonable doubt” is an ancient one. It has been deeply ingrained in our criminal law in this State for about 200 years and it needs no further explanation.

21. CP has been referred to by both his name and as “the accused”. That is all he is – the accused. I must now consider whether the Crown has established its case beyond reasonable doubt on the basis of all the evidence in relation to the charges against him and to render my verdicts accordingly.

AV Link/Support Person

22. The complainants ML and SJ gave evidence in this case by AVL. There was also a support person with SJ when she gave evidence. These are standard procedures in cases of this type.

23. The parents of the complainants, MB and MA also gave evidence by AVL in the trial. This too was standard procedure.

24. I must not draw any inference against the accused or give the evidence of SJ, ML, MB or MA any greater or lesser weight simply because their evidence was given in this manner or because SJ had a support person present. I must assess the evidence of each of these witnesses in the same way that I would assess any other witness. If I find it necessary in my fact finding task that I consider the demeanour of one of more of these witnesses important, and I find it difficult to assess that person’s demeanour by reason of the practical restrictions or limitations placed upon that task because of the AVL rather than that witness giving evidence in the courtroom, then that should not rebound against the accused.

Transcript

25. A transcript of the accused’s record of interview was provided and was marked for identification. I remind myself that what I saw and/or heard from CP during his interview is the evidence. The transcript is only an aide memoire. If there are differences between what I saw and/or heard and the transcript, what I saw and/or heard prevails.

Exhibits and Witnesses

26. The following were tendered as exhibits in the case:-

1. Photograph with the inscription “Merry Christmas” 1998 signed by SJ on 13 March 2019;

2. Recording of a telephone conversation between SJ and the accused on 4 April 2019, which was played in court;

3. Policy schedule noting a diamond ring for the year 1997/1998;

4. Pretext call explanation document dated 4 April 2019;

5. Recorded interview with the accused on 9 April 2019;

6. Agreed Facts in Sentence signed by the accused on 3 November 2020; and

7. Agreed Facts pursuant to section 191 of the Evidence Act 1995 signed by the parties on 5 April 2022.

27. The following persons gave evidence in the proceedings:-

1. SJ;

2. ML;

3. MA;

4. MB;

5. GL;

6. CP;

7. CY; and

8. YD.

Essential Witness

28. The Crown case depends upon my acceptance of one witness who is central to count 1 - and that is ML. The Crown case with respect to counts 2 to 8 depends upon my acceptance of the evidence of SJ. In this respect I must carefully consider each of their evidence. Before I could convict the accused I would have to be satisfied they were truthful and reliable witnesses as to those matters I consider important as to whether the accused is guilty beyond reasonable doubt of the offences charged against him. If I am not so satisfied then I must acquit the accused.

29. The Crown case with respect to ML is buttressed by evidence of complaint and tendency. The Crown case with respect to SJ is buttressed by tendency evidence.

Delay

30. Mr Coroneos submitted that I should warn myself pursuant to s165B of the Evidence Act because of the delay in bringing the proceedings, as the events the subject of the charge took place about twenty five years ago or more, and (as will be seen) the accused says that he has no memory of these events occurring in the manner described by SJ.

31. There is a warning I must give myself relating to this issue of the delay and in the absence of any complaint being made by the complainant SJ until 2019 when the events the subject of these proceedings had then taken place more than 20 years previously.

32. It is most important that I appreciate fully the effects of delay on the ability of CP to defend himself by testing the prosecution evidence and bringing forward evidence in his own case to establish a reasonable doubt about his guilt.

33. In this regard, I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution and in adducing evidence in his own case; all documents that had been marital property would have been destroyed; the delay itself in instituting the prosecution; the possibility of distortion in human recollection; the nature of the allegations; and the failure of SJ to complain to any person until 2019.

34. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, both in testing the prosecution evidence, and in bringing forward evidence himself to establish a reasonable doubt about his guilt.

35. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.

36. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainants’ memory for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainants’ inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on particularly SJ’s evidence by pointing to circumstances which may contradict her. Had the accused learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant SJ.

37. Another aspect of the accused’s disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.

38. I should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence that may have contradicted some of the background evidence adduced by the Crown.

39. Because the accused has been put into this situation of significant disadvantage he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I can convict the accused I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just mentioned— the fact that SJ’s evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support his defence.

Witnesses

40. As I have said, in this case, the Crown case in relation to the charge is based entirely on the evidence of the complainants ML and SJ subject to one other body of evidence being tendency evidence, and in ML’s case, complaint evidence as well.

41. My function in deciding what evidence I accept as proved and what is not, involves making an assessment of the witnesses who I observed, including the complainants. In making an assessment of whether I accept evidence is established by a particular witness’s account, I need to bear in mind that what I am concerned with is not just the honesty of the witness, but the reliability of the witness. Of course, I may well decide not to rely on the evidence of a particular witness if it appeared to me that the witness was not giving evidence honestly. However, I must also bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation, errors in the witness’s recall of events or a witness’s inability to accurately describe what it is he or she saw or heard. I bear in mind that I do not have to accept everything that a witness said or reject everything that that witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, but equally it is open to accept certain parts of what the witness said as reliable evidence that I can act upon, but I am not prepared to accept that witness about other parts of the evidence that he or she gave.

42. In making my assessment of witnesses I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

43. I acknowledge that reliability depends upon two quite different but overlapping factors. One factor is the witness’s honesty and the other is the witness’s accuracy. There are many factors which can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness strike me as being objective and impartial or did the witness strike me as appearing to be colouring his or her evidence in some way?

44. Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that a witness may be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. Demeanour and impression alone do not determine the honesty or accuracy of the witness’s evidence.

45. If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness’s accuracy. A witness can be perfectly honest and accurate or perfectly honest, but completely or partly inaccurate. To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic or fear that might have impacted their powers of observation and/or the laying down of an accurate memory? Are there issues relating to drug dependency or mental illness? How important to the witness were surrounding details of an incident or event such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event?

40. Judges do not have the ability to discern if a witness is telling the truth by only observing their demeanour. It is for that reason that the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above.

Inferences

47. I come now to the question of inferences. If inferences are to drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference, and I should not draw such an inference unless it is the only rational inference in the circumstances.

48. Part of my role involves drawing inferences from direct evidence. They are conclusions rationally drawn from a combination of proved facts. It is possible to draw inferences too quickly and to speculate. It is important that I do not rush to an inference too quickly and I must not speculate about matters. I must approach the evidence calmly, rationally and logically, applying my reasoning to it and considering the various possibilities as to the inferences that may properly be drawn from the evidence that I am satisfied has been established. I need to look carefully at the facts that I find established, and to consider cautiously the inference or inferences that I might draw from the particular facts with which I am concerned.

49. In some cases, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.

Agreed Facts

50. The following evidence is not in dispute (Exhibit 7):-

1. The accused CP was born in 1963.

2. The complainant SJ was born in 1965.

3. The complainant, ML is the younger sister of SJ.

4. The accused moved to Australia from Poland in 1981.

5. The accused met SJ in 1982 when SJ was about 16 years of age and the accused, 19.

6. The accused and SJ were married in 1988.

7. There are three children of the relationship: a son born in 1989, a daughter born in 1991 and a son in 1994.

8. SJ purchased a restaurant with her parents in 1989.

9. In 1990 SJ and the accused purchased a home where they lived until the end of the relationship.

10. In 1995 SJ, the accused, CY and YD purchased a restaurant.

11. ML babysat the accused and SJ's children from soon after the first son was born including 1994 to 1996.

12. Between June 1994 and December 1996 ML slept in the spare room at the accused’s and SJ's house when babysitting for the accused and SJ.

13. Sometime in the second half of 1998, the accused's sister, CY and her then husband, YD, held a party at their house.

14. The accused and SJ attended the party and stayed the night sleeping in the rumpus room.

15. In December 1998 the accused, SJ and the children went to Daydream Island.

16. In January 1999 the accused went to Germany.

17. By February 1999 the relationship between the accused and SJ had ended and they ceased living together.

Accused Gave Evidence

51. The accused gave evidence in this trial on affirmation. He was not obliged to do so. He could have said nothing at all. He chose to give evidence and thereby exposed himself to cross-examination. His choice to do that does not, of course, mean that the evidence that he gave was necessarily true. His evidence falls into the same category as the evidence of any other witness in this case and I will assess it in exactly the same way. By going into the witness box, CP made himself a witness like any other witness, and exactly the same principles apply as I evaluate his evidence. The same considerations relating to his truthfulness and to the reliability of his evidence apply. By taking the course that he did, he in no way altered the fundamental principle concerning where the onus of proof lies. It is not for the accused, CP, to satisfy me of his innocence - it is for the Crown to satisfy me of his guilt beyond reasonable doubt of the charges he faces.

52. CP denied the charges on the indictment with respect to SJ and said that all sexual activity he had with his wife was consensual. He denied that, save for one consensual attempt at anal intercourse with his wife early in their marriage, he ever had anal intercourse with SJ. He did not deny that he touched ML over her vagina, but he said that he believed that it was consensual.

53. During this trial, I also heard and observed the accused during his ERISP. He did not answer all questions put to him by police. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.

54. The accused bears no onus of proof in respect of any fact that is in dispute. Therefore, it follows that the accused was entitled to say nothing and make the Crown prove his guilt to the high standard required.

55. I direct myself, as a matter of law, that the accused’s decision not to answer some questions cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to answer some questions. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

56. I must not speculate about what might have been said in answer to those questions if the accused had answered them.

Liberato Direction

57. It is important that I understand that the accused must be found not guilty of the offences charged if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. The following propositions flow from this statement.

58. First, if I believe the accused’s accounts in his evidence in this trial and his ERISP, I must find him not guilty of the offences for which he has been charged. Later in this judgment, I deal with some of his answers with respect to these charges.

59. Second, if I find difficulty in accepting the accused’s account, but I think it might be true, then I must find him not guilty of the offences with which he has been charged.

60. Third, if I do not believe the accused’s account, then I must put it to one side. Then the question will remain: has the Crown, upon the basis of evidence that I do accept, proved on the evidence available, that the accused committed the offences charged beyond reasonable doubt?

Zoneff direction

61. It was suggested by the Crown, as will be seen, that the accused lied in his evidence before me. This is a matter for me to decide. To decide that a lie was (or lies were) told, I must be satisfied that the accused said something that was untrue and that at the time of making the statement he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie. In this particular case, English was not the accused’s native tongue. Although the accused has lived in Australia since 1981 and is fluent, he did not have an interpreter present during his ERISP or his evidence in court. I must take into account that if I find that the accused has said something untrue, it may have been because of a misunderstanding of the English language.

62. If I decide that a lie (or lies were) told, I cannot use that fact or facts in support of a conclusion that the accused CP is guilty. A lie cannot prove his guilt. Neither can a lie be used in conjunction with the other evidence that the Crown relies upon to prove his guilt.

63. The only use I can make of the fact that he told a lie (or lies) is in my assessment of his credibility. If I am satisfied that he did lie, then that may be considered by me as having a bearing upon whether I believe the other things that he said.

Complaint Evidence

64. The Crown relies upon evidence of complaint to support its case with respect to count 1. It is not in dispute that on the day or so following the accused’s alleged assault upon ML, she told her mother and SJ about the incident. Both MB and SJ gave evidence consistent with being told that the alleged incident occurred.

65. The first issue for me to decide is whether I accept the evidence of complaint. It was not disputed by the accused. I therefore accept it.

66. The following directions apply to how it may be used.

Section 60 use

67. The first way in which the evidence may be relevant is that it can be regarded as additional evidence that the complainant was assaulted in the way she described. So, not only would I have the complainant having given evidence about having been assaulted by the accused. I would also have the description of the assault that was given to MB and SJ.

68. I should have regard to all of the circumstances relevant to the making of the complaint. In considering using the evidence for this purpose I should consider how consistent the complaint is with the evidence the complainant gave in court. If there are discrepancies, I should consider why that may be so and whether that has a bearing upon whether I should treat the complaint evidence as additional evidence of the complainant having been assaulted.

Credibility Use

69. The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainant’s evidence in court. The Crown says the fact that she complained when she did makes it more likely she is telling the truth about having been assaulted by the accused.

70. A matter I might consider in relation to using the evidence for this purpose is whether the complainant’s conduct was consistent with the allegation. In other words, did she act in the way I would expect her to act if she had been assaulted as she claims? Things I might think about in relation to this are the timing of the complaint, in relation to when the assault is said to have occurred.

71. In considering whether there was consistency between the alleged assault and the complainant’s conduct in complaining, I might bear in mind that different people have different personalities. In a given situation they might not all behave in the same way. In this case I am being asked to consider the complainant and the way she reacted to the experience she says she had.

72. Another matter I should consider is that just because a person says something on more than one occasion does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

73. This direction applies only to count 1 with respect to ML.

Section 293A   

74. This direction applies with respect to counts 2 to 8 (SJ). Mr Coroneos in his cross-examination and his address suggested that SJ was not telling the truth, that there were gaps in the accounts she gave, and that there were differences and inconsistencies between her accounts given to police and in evidence in this court.

75. Experience shows that people may not remember all the details of an event including a sexual offence or describe it in the same way each time, that trauma may affect people differently and may affect how they recall events including sexual offence, that sometimes there are differences in an account of an event including a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences.

76. It is my job as judge of the facts, to decide whether or not any differences in the SJ’s account are important in assessing her truthfulness and reliability.

Section 294

77. This direction also applies only to counts 2 to 8 concerning SJ.

78. I have heard evidence that SJ did not complain about what she claims the accused did to her until she complained to police more than 20 years later in early 2019.

79. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation that the offences were committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.

80. However, the delay in making a complaint is a matter that I may take into account in assessing the credibility of SJ’s evidence as to what she said the accused did. The accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so I should regard this as indicating the complainant’s evidence is false. SJ was adamant that her allegations were not false.

81. This is matter for me to consider.

Tendency Evidence

82. The Crown relies on two Tendency Notices.

83. As to the first Notice dated 20 October 2020, part of the Crown case is that the accused had a tendency to act in particular ways, namely to engage in sexual acts with the complainants without their consent, and the Crown relies upon the evidence with respect to each count as being cross-admissible as tendency evidence. Common features are alleged to be that the accused has a familial relationship with the complainants, that the offending occurred in a familial home and that the accused initiated sexual acts with the complainants when they were asleep.

84. As to the second Notice dated 19 May 2021, part of the Crown case is that the accused had a tendency to act in a particular way, namely to approach females while they are asleep in bed and engage in sexual acts with them, without their consent. To establish that tendency, the Crown relies on Agreed Facts on Sentence, which is exhibit 6 in the proceedings and concerns the accused’s admissions to indecently assaulting his stepdaughter on three occasions in the years 2012, 2015 and 2016.

85. The Crown says that I would be satisfied that the accused had the alleged tendencies which makes it more likely that he committed the offences charged in the indictment.

86. I will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so, I do not consider each of the acts in isolation. I should consider all the evidence and decide what conduct I am satisfied occurred.

87. If I decide that all, or at least some, of the conduct occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendencies as alleged by the Crown. I remind myself that care needs to be applied to the drawing of inferences. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I should bear this in mind when I am considering this part of the evidence.

88. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendencies can be inferred. In these circumstances, I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown’s case.

89. If I find the accused did have the tendencies alleged, then I can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential that I consider with respect to the charges, whether the accused had the state of mind alleged and acted upon it on that specific occasion.

90. Finding the accused did have the tendencies the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. Proof of the tendencies is a step to proving by way of inference that the accused acted in this way on the occasions the subject of the charges. It is a means of proving by deduction that the accused acted in a particular way when there is no direct evidence of that conduct on the occasion the subject of the charge. That is the only way the accused’s alleged tendencies may be used.

91. Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to the charge. Relevantly, this is the evidence of the complainants. It will include the tendencies alleged by the Crown, provided I am satisfied they have been established. Ultimately, I will have to decide whether the Crown has proved the essential elements of the charges the accused faces.

92. I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove the particular charge.

93. I note section 161A of the Criminal Procedure Act 1986, which provides:-

161A   Direction not to be given regarding tendency or coincidence evidence

(1)  A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.

(2)  If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.

(3)  Subsection (1) does not apply if a court is satisfied—

(a)  there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and

(b)  evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.

94. This section reflects the common law as set out in R v Bauer [2018] HCA 40, and see Greenaway v R [2021] NSWCCA 253. In my opinion, the tendency evidence does not have to be proved beyond reasonable doubt.

ML – Count 1

95. I deal first with count 1.

96. ML’s evidence was that at a time when she had been babysitting for SJ and the accused at their home in Hazelbrook, she was in bed with her daughter, who was born in 1994 and was likely aged 2 when the accused came into the bedroom where she was sleeping. The lights were off. She alleges that he came in, put his hand under the blanket and put his hand on her pubic area on top of her underwear for about 2 seconds. She told him to “fuck off”, and he left the bedroom.

97. The accused’s evidence on this topic was materially identical, and indeed he admitted the conduct and the aftermath in his evidence and by his admissions to MB, MA, SJ and ML. He also made admissions in the pretext call (exhibit 2). I find beyond reasonable doubt that there was an assault and that it was accompanied by an act of indecency. There is no doubt that ML did not consent. The issue with respect to count 1 is whether or not the accused knew or was reckless as to consent.

98. There was an issue at trial as to whether or not the accused and ML had a sexual interaction some weeks prior to the event the subject of count 1. This was denied by ML, and there is evidence that at about the time ML complained immediately after the event, the accused said that he and ML had “a thing”, which she then (and continued) to deny. In any event, on the accused’s account, that interaction took place when ML was drunk.

99. I am unable to make a positive determination on the evidence as to whether or not there had been a previous sexual encounter between the accused and ML. However, in my opinion, even if there had been a previous sexual encounter between the two, the Crown has proved that the accused was reckless as to consent such that he failed to consider whether or not the complainant was consenting at all, and just went ahead with the indecent assault, even though the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if he had turned his mind to it, and that the accused’s state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. There was no reasonable basis for the accused to believe that ML was consenting to the act of indecency in my view.

95. I therefore find the accused guilty of count 1. In coming to this conclusion, I do not rely on the tendency evidence.

SJ – count 3

101. SJ’s evidence was that the accused tried to push his penis into her anus, that she woke up because it hurt and that she screamed at him to stop.

102. The accused denied that he engaged in anal intercourse with SJ without her consent. It was his evidence that they discussed it early in their relationship and both agreed to try it. He said that she was not interested and so they never did it again.

103. The Crown submitted that I would reject the accused’s evidence because it was inconsistent with his answers to police in his ERISP and in particular that he never engaged in anal intercourse with SJ and that he did not recall the complainant saying that she did want anal intercourse or discuss it with him.

104. The accused’s ERISP took place at a time when he was first confronted with this allegation, and when he was first trying to recall an event more than 20 years ago. I do not consider that it is necessarily inconsistent with his evidence before me.

105. SJ’s evidence on this topic, and indeed with respect to each of the counts which related to her was often imprecise, vague and lacking in detail. She clearly was struggling to recall particular instances which she alleged occurred in the context of, on her own admission, a highly sexualised relationship with her then husband over the course of many years, including the last years when she said that she needed “to put out more” so that he would not “wander”.

106. CP adamantly denied that he had anal intercourse with SJ without her consent. I found CP to be a compelling witness who did his best to recall events truthfully. He wept in court when recalling the good years of their marriage. Indeed, in my view, taking into account the limitations of demeanour, I cannot discount his version of this event, or indeed all events which form the charges on the indictment concerning SJ.

107. In this case, it is SJ’s word against CP’s word. After careful scrutiny of SJ’s evidence which the Crown must prove beyond reasonable doubt, and even allowing for the tendency evidence, I think CP’s evidence might be true. Therefore, I find him not guilty of the count 3 on the indictment, the Crown not having proved the elements beyond reasonable doubt.

SJ – counts 4, 5, 6 and 8

108. The Crown relies on the evidence of SJ that she attended a party at the accused’s sister’s house for a Serbian Saint’s Day which was celebrated by her sister in law’s husband in late 1998 at time when her marriage was failing. SJ said that they stayed over at her sister-in-law’s home for the night and slept on two lounges in the rumpus room put together in an “L” shape. She says that she borrowed a nightie from her sister-in-law.

109. SJ’s evidence was to the effect whilst asleep (or pretending to be asleep) the accused put his penis onto her mouth. She turned her back to the accused. He then put his penis into her vagina and she rolled onto her back continuing to pretend to be asleep. The accused then put his fingers into her vagina and then his penis into her vagina and she pretended “to be dead”.

110. The Crown submitted that answers given in the accused’s ERISP were effectively admissions that he had engaged in sexual activity whilst she was asleep, and that he believed that she was consenting so long as she did not push him away. I do not agree with this submission. First, before me, the accused adamantly denied that the event occurred. Second, my understanding of his ERISP was that he often worked late and would initiate sexual contact with his then wife when he came to bed, and which (on his evidence) always resulted in consensual sexual activity.

111. In my opinion, SJ was an unsatisfactory witness with respect to these allegations. She appeared to be searching her memory of events long past and was easily confused. She was inconsistent in her recounting of the events and could provide little detail. The accused, on the other hand, was in my view a much more reliable witness on this and other topics and in my opinion searched his memory in order to answer counsels’ questions. I found CP to be a compelling witness who did his best to recall events truthfully.

112. Furthermore, I accept the evidence of the accused’s sister CY and her ex-husband YD, that this event was not a Saint’s Day celebration (which is close to Christmas Day and to which the family were never invited) but rather was their daughter’s birthday party in September. I also accept CY’s evidence that she did not have a nightie to lend SJ who slept in her clothing, and CP and SJ’s children slept at the foot of the “L” shaped lounges.

113. After careful scrutiny of SJ’s evidence which the Crown must prove beyond reasonable doubt, and even allowing for the tendency evidence, I think that CP’s evidence might be true. Therefore, I find him not guilty of the count 4, 5, 6 and 8 on the indictment, the Crown not having proved the elements of the charges beyond reasonable doubt.

SJ – count 2

114. Count 2 is the allegation that at a time between mid-1995 and December 1998 the complainant woke to the accused’s penis in her mouth. Her first evidence was that it was “in her face”. She then said that “she woke up with his penis in her mouth”, and later repeated that evidence. She said that she pushed him off and that she believed that he had then masturbated.

115. Like all the allegations, SJ did not in my opinion have a significant or accurate recall of the events of which she complained. Indeed, they appeared to be generic complainants that were reconstructed from memories long ago.

116. CP was adamant that he did nothing of the sort and that he only had consensual sexual activity with his wife during the course of their marriage. He denied that this event occurred. I found CP to be a compelling witness who did his best to recall events truthfully.

117. After careful scrutiny of SJ’s evidence which the Crown must prove beyond reasonable doubt, and even allowing for the tendency evidence, I think that CP’s evidence might be true. Therefore, I find him not guilty of the count 2 on the indictment, the Crown not having proven the elements of the charge beyond reasonable doubt.

SJ – count 7

118. Count 7 is the allegation that at a time between mid-1995 and December 1998, the complainant woke to the accused’s fingers in her vagina. SJ gave brief evidence of it occurring. She said that she pushed CP away when it occurred.

119. Like all the allegations, SJ had little recall of the events surrounding the allegation and could not provide detail.

120. CP was adamant that he never engaged in any sexual activity without SJ’s consent and could not recall any occasion such as that described by SJ. I found CP to be a compelling witness who did his best to recall events truthfully.

121. After careful scrutiny of SJ’s evidence which the Crown must prove beyond reasonable doubt, and even allowing for the tendency evidence, I think that CP’s evidence might be true. Therefore, I find him not guilty of the count 7 on the indictment, the Crown not having proved the elements of the charge beyond reasonable doubt.

Conclusion

122. I find the accused guilty of count 1 on the indictment. I find him not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment.

ANNEXURE “A”

ELEMENTS

There are two types of offences on the indictment which can be described in short form as:

• Indecent assault (s 61L Crimes Act 1900) and

•   Sexual intercourse without consent (s 61I)

The elements for indecent assault are:

1. The accused assaulted the complainant; and

2. The assault was accompanied by an act of indecency on or in the presence of the complainant which occurred before, after or at the time of the assault.

In this case the assault and the act of indecency are the same, in that the Crown says that the accused touched the complainant, and the touch was indecent.

The elements of the offence of sexual intercourse without consent are:

1. The accused had sexual intercourse with the complainant;

2. The complainant did not consent to the sexual intercourse; and

3. The accused knew that the complainant did not consent to the sexual intercourse or was reckless as to whether the complainant consented

Definition of sexual intercourse

1. Sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by any part of the body of another person or any object manipulated by another person except where the penetration is carried out for the proper medical purpose or sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or cunnilingus.

Consent

1. The complainant did not consent:

   a.   Consent involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused. It can be given verbally or expressed by actions. Similarly, the absence of consent does not have to be in words, if also may be communicated in other ways such as offering resistance although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

Knowledge

1. The accused knew that the complainant was not consenting:

   a.   It is the accused’s actual knowledge of the lack of consent with which the finder of fact is concerned. This may be inferred or concluded from other facts that the accused must have known and that he indeed knew that the complainant was not consenting.

   b.   In a situation where a complaint does not in fact consent, the accused’s state of mind at the time of the act of intercourse might be that he actually knew that the complainant was not consenting. That is guilty state of mind for this offence.

   c.   On the other hand, on the basis of the evidence led in the trial that he might have believed that the complainant was consenting to the intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly believed it and if so whether the crown has proved beyond a reasonable doubt that there were no reasonable grounds for that belief.

Recklessness

1. If the accused was reckless as to whether the complainant consented to the sexual intercourse, then the accused will be taken to know that the complainant did not consent to the sexual intercourse.

2. To establish that the accused was acting recklessly, the Crown must prove, beyond a reasonable doubt that either:

   a.   The accused’s state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if he had turned his mind to it; or

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

Indecent

1. The word “indecent” means contrary to the ordinary standards of respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. If the accused touches the complainant’s body in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent. For example, touching the genitals or anus of a male or the genitals or breast of a female.

S 61H Crimes Act 1900

(1)  For the purposes of sections 61H–66F, sexual intercourse means:

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

(i)  any part of the body of another person, or

(ii)  any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b)  sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c)  cunnilingus, or

(d)  the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

S 61R

Consent

1. For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

2. For the purposes of sections 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:

   d)   a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

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Decision last updated: 02 May 2022