R v DLW (No. 4) - [2020] NSWDC 284

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DLW (No. 4) [2020] NSWDC 284
Hearing dates: 25-29 May 2020, 01-02 June 2020
Date of orders: 09 June 2020
Decision date: 09 June 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 276-277

Catchwords:
CRIMINAL LAW – trial by judge alone – child sex offences – sexual intercourse with a person under the age of 10 years – whether complainant credible and reliable witness – complaint evidence – whether accused told lies and whether this manifested a consciousness of guilt – whether Crown can disprove alibi defence

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HA, 66A
Criminal Procedure Act 1986 (NSW), ss 133, 281, 293A, 306U, 306W, 306X
Evidence Act 1995 (NSW), ss 139, 165

Cases Cited:
R v Winner (1995) 79 A Crim R 528
Fleming v The Queen (1998) 197 CLR 250
GBB v R [2019] NSWCCA 296

Category: Principal judgment
Parties: Director of Public Prosecutions
Mr DLW
Representation:
Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr S Schaudin for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
David Kelly Lawyers for the accused

File Number(s): 2017/134016
Publication restriction: Non Publication Order on the names of the complainant, any members of the complainant’s family, the accused, and any members of the accused’s family or any information that may identify any of them. Pseudonyms have been used for the names of the complainant, the complainant’s family and the accused.

BACKGROUND

PRINCIPLES OF LAW

General Directions

ELEMENTS OF THE CHARGES

“Sexual intercourse”

PROOF OF THE CROWN CASE

Overview
The complainant’s evidence
Evidence in Chief
Cross-examination

Evidence of “complaint”
The complainant’s brother (BAW)
Cross-examination of BAW (by the Crown)
Cross-examination of BAW (on behalf of accused)

Evidence of the complainant’s step-mother (TW)
Evidence of the complainant’s father (CW)
Significance of evidence of complaint
Warning: complaint evidence as hearsay
Warning – effect of delay
Other evidence
Evidence of the complainant’s mother (DJ)
Evidence of the complainant’s grandmother (MJ)
Cross-examination
Re-examination

Evidence of Kylie Harman
Evidence of the accused’s uncle (Shane)
Cross-examination

Evidence of the accused’s brother (Dwayne)
Cross-examination

Other documents relied upon by the Crown
Lies and consciousness of guilt
Warning regarding admissions
Directions about the use of evidence
Evidence to disprove alibi evidence

DEFENCE CASE

Election not to give evidence
Good character
Alibi evidence

SUBMISSIONS

The Crown’s submissions
The accused’s submissions

FINDINGS ON CREDIT

The complainant
Demeanour
Reliability

Other witnesses called by the Crown
BAW
TW
CW
DJ
MJ
Kylie Harman
Shane
Dwayne

‘COMPLAINT’ EVIDENCE

LIES AND CONCIOUSNESS OF GUILT

WHEN THE OFFENDING CONDUCT COULD HAVE OCCURRED

Many social functions at 101 M Road – second half of 2009

IDENTIFYING THE ACCUSED AT THE BARBECUE

GOOD CHARACTER

SUMMARY OF FINDINGS TO DATE

THE PARTICULARS OF THE SEXUAL ASSAULTS

VERDICT

Judgment

BACKGROUND

The accused is charged, on an indictment (as amended), that between 23 July 2009, and 22 July 2010 in Budgewoi, he:

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act 1900 (NSW);

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act1900 (NSW); and

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act1900 (NSW).

This is a trial by judge alone. Section 133(1) of the Criminal Procedure Act1986 (NSW) relevantly provides that I may make any “finding” that could have been made by a jury on the question of the accused’s guilt – that is, whether the accused is guilty or not guilty on the subject counts. I am required to state the principles of law I have applied and the findings of fact on which I have relied (s 133(2)). Section 133 does not, however, require me to state all the matters which necessarily would have had to be stated to a jury, or even all of the matters I have taken into account in determining the question of guilt [1] . To the extent that the law would have required a warning to a jury in any such case, I am required to take the warning into account in dealing with the matter (s 133(3)). The relevant principles to be applied – and particularly those pertaining to how mandatory warnings are to be taken into account – are those referred to in Fleming v The Queen (1998) 197 CLR 250. What needs to be taken into account is the subject matter of any warning and the particular reasons why a particular matter may be unreliable; and once the source of unreliability has been identified, consideration needs to be given to the weight accorded to the evidence[2] .

PRINCIPLES OF LAW

1. R v Winner (1995) 79 A Crim R 528.

2. GBB v R [2019] NSWCCA 296 at [33].

General Directions

Sitting alone, it is pertinent to remind myself of the following general matters which, if there was a jury, would have been the subject of direction by me to the jury.
As the accused has pleaded that he is "not guilty" to all counts and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of these charges and to return my verdicts according to the evidence that I have heard.
The Court notes that the evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count.
I have heard and received final submissions from the Crown and Mr Schaudin of Counsel for the accused. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. In no sense are those submissions evidence in the case.
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 must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. This is particularly pertinent, having regard to the nature of the offences with which the accused is charged.
As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the video and audio recordings and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the accused.
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 from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.
I now direct myself on the onus of proof. The burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the accused must be found "not guilty" of the charges.
The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by each of the Counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against the accused for each count.

ELEMENTS OF THE CHARGES

“Sexual intercourse”

This is a broadly defined expression under s 61HA of the Crimes Act 1900 (NSW). It is common ground that each of the alleged acts in the respective counts on the indictment, as particularised, satisfies this definition.
It will be noted that there is no fault element to this offence. The offence is made out upon proof of sexual intercourse being engaged in with a child under the age of 10.
The Crown tendered a birth certificate (Exhibit H) to prove that the complainant was aged 7 years at the time of the alleged conduct. It is not disputed that between 23 July 2009 and 22 July 2010 the complainant was under the age of 10.
That means that the only issue, in relation to each count, is whether the alleged acts of sexual intercourse occurred. As will be seen, bound up in that is the question whether, because of alibi evidence, the accused was in a position to engage in those acts.

PROOF OF THE CROWN CASE

Overview

The Crown relies, primarily, upon the evidence of the complainant to make out each count. For this purpose, I note that the complainant identified the perpetrator as “Damien”. For the balance of these reasons, where a witness for the Crown has identified or referred to “Damien”, that should not, by itself, be taken to be a reference to the accused. The Crown also relies upon the content of the complainant’s complaint (or what I later characterise as a ‘report’) to his father and step-mother, which occurred in May 2016. Implicitly, part of the evidence of the complainant’s step-mother and father involves a report of the events supplied by the complainant to his brother. The Crown called other witnesses who, the Crown contends partially provides additional corroboration for the complainant’s account and reinforces his credibility and reliability. The Crown also relies upon two statements made by the accused in June 2017 which the Crown says were lies and which manifested a consciousness of guilt. Finally, the Crown relied on evidence to disprove the accused’s alibi notice.

The complainant’s evidence

Evidence in Chief

The complainant’s evidence in chief was comprised of two records of interview given to Detective Senior Constable Catherine Hayward, on 3 June 2016 and 9 February 2017, respectively. Video recordings of those interviews were played for the Court (with transcripts marked for identification, as aide-memoires).
The complainant also participated in a ‘drive around’ on 14 July 2016. This was principally intended to enable the complainant to identify the home where he said he was sexually assaulted and also the home that he was staying with his (biological) mother, in the same street. A video and sound recording of that drive around was also played.
This evidence was admissible pursuant to the provisions of Division 3 of Part 6 of the Criminal Procedure Act. I draw no inference adverse to the accused that the complainant’s evidence was given in this way (per s 306X of the Criminal Procedure Act).
The complainant’s evidence, as it emerged, was as follows.
In 2009 and 2010, the complainant and his brother periodically visited their biological mother, who was at the time living in 58 M Road, Budgewoi (the street name has been redacted).
At some point in 2009, which he thought occurred during the December school holidays, the complainant (having turned 7 years of age in July), his brother and his biological mother visited the premises at 101 M Road, Budgewoi (the street name has been redacted). He recalled that he was in Year 4 at the time the incident occurred. I will refer to his brother as “BAW” and his biological mother as “DJ”.
These premises were occupied by “Damien”, who the complainant understood was DJ’s boyfriend, for only a week. He had not met or seen “Damien” prior to that. The complainant, DJ and BAW walked to the premises.
The complainant understood that he was going to “a party”. He later told the police that he thought it was a birthday for the accused, but he did not actually know this: he surmised this because of the age of other attendees at the party. It was not clear from his evidence whether he recalled what day of the week the party occurred. He recalled that the “party” was at night-time.
The complainant understood that they arrived at about 7:00pm in the evening. He later said that his recollection of this time for arrival was based upon what DJ told him. He recalled that the weather was sunny and warm; even possibly hot. He was wearing elastic shorts. He recalled that the accused was wearing jeans and a t-shirt. The complainant said that at the party, he watched a DVD of cartoons on the television and had eaten different foods in the kitchen. He recalled having talked to his younger brother and DJ.
The complainant said that he was about to get a drink in the kitchen before a man, who he identified as “Damien”, grabbed him by his neck, with one hand and dragged him away. Although he recalled biting and kicking Damien, he could not resist Damien. Damien grabbed him and took him to a bedroom. A sketch that the complainant drew (Exhibit A.3) indicates that the bedroom was close to the kitchen, towards the opposite end of the house; from where the front door was located. The complainant said that the attendees at the party were mainly located in the front section of the home near or on the driveway outside the front door.
Once inside the bedroom, the complainant recalled that Damien pushed and tripped the complainant so that he fell to the floor. The complainant hit his head. Damien locked the door. The complainant recalled that the room was lit. The blinds were drawn. Damien turned the complainant from his side so that he was lying on his belly. The complainant said that there was a mirror in the bedroom against a window (Exhibit A.2). He said that Damien ripped (in the sense of pulled) down the complainant’s shorts and underpants and threw them on to the ground. He then got on top of the complainant. The complainant said he saw through the mirror that Damien pulled down his own pants and underpants to his legs, lay on the complainant’s back and proceeded to insert his penis into the complainant’s anus and thrust it backwards and forwards. The complainant recalled telling him to stop, but he kept on doing it.
The complainant recalled that at some point he stopped. He then said that Damien grabbed him, pulling him by his hair and got him to kneel on his knees. The complainant said that Damien “shoved his dick in my face”. Damien was holding the complainant’s head. The complainant said that Damien made him “suck his dick”.
The complainant recalled that he stopped. The complainant got up. The complainant thought that he was allowed to go and was walking to the door. But Damien pushed him on his chest with his hands so that he fell back on to the bed. The complainant was lying on his back, with his legs hanging off the bed. The complainant’s clothes were still on the floor and Damien’s clothes were still around his legs. Damien took the complainant’s penis into his mouth. The complainant said that Damien “sucked my dick”. The complainant told him to stop and was kicking Damien. When he was about 14, in his interview with the officer in charge, the complainant identified on a sketch diagram where the penis was on the male body (Exhibit A.1).
The complainant recalled hearing sounds at the door. The complainant recalled, as he was leaving the room, at about the point he opened the door, Damien telling him to “keep it to yourself or I’ll kill you”.
The complainant recalled running home. In cross-examination, he said he ran from the house down the street to the intersection of M Road and I Street. Thereafter he stopped. DJ and BAW caught up with him. Thereafter he walked home.
About half an hour later, the complainant recalled that Damien visited his home at 58 M Road. He recalled the door was unlocked and heard his mother welcoming him in the home. At this point, the complainant was playing his X-Box game in the loungeroom. But when he saw and heard Damien, he raced to his bedroom and locked himself inside. He recalled that Damien was only at the home for about 15 minutes, but in that period, Damien approached the door to his bedroom and asked the complainant to open it. The complainant refused. Damien left without further incident.
It was only in May 2016 that the complainant said he first told his step-mother and father about what had occurred. About 4 months before his record of interview with the police (in June 2016), the complainant recalled hearing a discussion between his step-mother and her parents about the Facebook account for Damien.
In his record of interview, he recalled that Damien drove a black Holden ute. He saw another black vehicle at the place at 101 M Road when the complainant did the drive around, but the complainant said that it was a different vehicle. The complainant did not notice the number plates on either car.

Cross-examination

It was put to the complainant that the person he understood as “Damien” was not this accused. This was denied. The main aspects of the cross-examination centred upon propositions that:

the complainant had not corrected the police officer when she indicated her understanding that the assaults had happened at a party at his home. In re-examination, he said that when the question was asked, he did not understand whose house was being referred to. His intent was to indicate that the assaults occurred at a party at the accused’s home;

contrary to his evidence, in his testimony and in his drive around on 14 July 2016, when he identified the black car as being the same one driven by the accused on the day of the alleged assaults, (T24.13, T61.30), the complainant had given inconsistent evidence of the vehicle being subsequently sold (prior to 14 July 2016) (T64.4 – 64.25). This meant that the vehicle he saw in 2009 could not have been the same vehicle as he saw on 14 July 2016. In re-examination, the complainant accepted that he had not seen the number plates on the black car either at the party or on the drive around;

the complainant had been over to the place at 101 M Road previously to the party, for the purposes of having a swim. The complainant said he did not recall this;

around June or July 2009, someone may have come around to his place, at 58 M Road, to bring a couch around to the home. The complainant said he did not recall this;

at Q110-117 and Q124-128 during the interview on 3 June 2016, when he was asked what happened, the complainant omitted to refer to the act the subject of count 3 (Damien performing fellatio upon him). The complainant said that his answers at A110-116, were directed to his understanding as to what his penis was used for. His account at A124-128 was only a partial description of the acts done to him;

the complainant gave different answers (A161-167) in the same interview, as to the day of the week that the alleged conduct occurred when he was just guessing. The complainant accepted that he was unsure what particular day that it was. He was only sure that it occurred in when he was 7 years old;

the complainant had given evidence that he did not see anyone as the accused was holding him by the back of neck and dragging him to the bedroom (A368-380), whereas he later said that he heard his mother telling him “Don’t worry about it” (A563-565). The complainant said that there was a distance of about 10m from where his mother was and where the kitchen was. He heard her say these words as she was walking back outside;

there was no mirror in the room. The complainant maintained that there was. Later, in re-examination, the complainant said that the mirror in the bedroom was in a standing position; leaning against the wall. It was not affixed. He could see himself through the mirror, on an angle;

although he said that he was able to punch the accused in the face and bite him on the hands, as Damien had his hand around his neck and was dragging him away, it was curious that the complainant was not able to yell to the others in the front of the home. In re-examination, the complainant said that the music was loud and he repeated that the accused had his hand on the back of the complainant’s neck so that he could not talk over the top of the music;

the complainant had given evidence, for the first time in cross-examination, of hearing a person asking where he was at the time when Damien was engaging in anal sex with the complainant, that the accused responded “I haven’t seen him” (whilst covering the complainant’s mouth) and that it was 20 minutes later that the assaults stopped;

if his evidence was that Damien stopped assaulting him after someone’s voice emerged from outside the door (as conveyed by A295-303) and if that voice emerged during the anal sex, then the other sexual assaults he alleged (at A195) occurred could not have happened. Under cross-examination, the complainant said he “did not know”. In re-examination, the complainant indicated he “did not know” what was being meant by the question. He again set out the sequence of events: he said that he heard the voice outside the door after the anal sex and when the accused had the complainant’s penis in his mouth. It was about 20 minutes after hearing the voice, he estimated, that the accused unlocked the door and he was able to run out;

at any rate, he had the opportunity to cry out to whoever was calling out from outside the bedroom door. The complainant said that he could not because Damien put his right hand over his mouth;

when he later saw Damien attend his own home, and after he left the party, he had the opportunity to complain to his mother (and also his grandmother) about what had earlier occurred. In re-examination, the complainant said that his mother was on drugs and he did not think that she would believe him. He explained that he did not tell his grandmother since she was really sick and he did not think she would believe him. He added that at about midnight, he was collected by his father at 58 M Road;

the complainant may have complained to his brother about what had occurred. The complainant denied that he did;

the complainant had made up the allegations against Damien merely to provide a reason to stay away from DJ’s place; given that his mother had mistreated him and he preferred to stay with his father and step-mum. He said in re-examination that although (as he had said in cross-examination) he loved his real mother, he would not lie to protect her;

the complainant had never identified the accused in an array or by photograph. The complainant accepted that he had not; and

the complainant had never heard anyone identify the accused by his surname. The complainant also accepted this.

Evidence of “complaint”

The complainant’s brother (BAW)

In 2009, BAW was 5-6 years old. When he gave a recorded interview with the police on 4 August 2016, he was 12 years old. Subject to an important qualification, that recorded interview constituted his evidence in chief. The qualification is that, over the objection of the accused, the Crown was granted leave to cross-examine him, on the ground that evidence in that record of interview was unfavourable to the Crown.
I will deal, first, with the main parts of his evidence in chief before considering the Crown’s cross-examination of BAW, and then the cross-examination by Counsel for the accused.
The main parts of BAW’s evidence as they emerged from the record of interview were that:

BAW understood that the reason why he was being interviewed was that his brother, the complainant, had been ‘raped’ by a person known as ‘Damien’.

this occurred at DJ’s home at 58 M Road, Budgewoi;

this occurred at a party, at night-time, when the weather was cold and it was in winter;

‘Damien’ was known to him in a number of ways: being ‘mum’s friend’, ‘mum’s friend’s dad’ (this aspect was later corrected by him in re-examination), ‘mum’s friend’ and ‘dad’ (which his mother referred to him as being);

he had met ‘Damien’ when his mother had urged him (and the complainant) to go and swim in the pool at “Damien’s” place. He understood that his mother had met ‘Damien’ at the shops;

at his mother’s party, he went to bed at 8:00pm. He recalled that this was on a Sunday because that morning, he and the complainant had to go to his father’s place to take them to school the following morning;

he and the complainant shared a room at his mother’s home. They also shared a bed;

he recalled that he and the complainant went to bed at about the same time; only that the complainant stayed up to watch movies on the laptop situated in the bedroom. He recalled that ‘Damien’ was out the back of the house at the point. BAW recalled he was wearing pyjamas, but could not recall whether the complainant was;

he recalled that ‘Damien’ came in and started to pull down his pants and put his “rude part” (“Damien’s doodle”) into the complainant’s “bum”. He described where the complainant was positioned when this occurred and identified that ‘Damien’ had entered the room (which he said had been closed by his mother) and that it was dark;

he recalled hearing the complainant yell out to his mother, but his mother did not hear him. BAW thought that she was too busy talking. This happened whilst ‘Damien’ was in the bedroom;

BAW then told the interviewing officer that he did not know that ‘Damien’ was in the room. He also said, later, that he did not hear the complainant saying anything during the time of the alleged assaults. He said he did not hear him yelling out, since he was asleep. It was the complainant who told him the following morning, whilst they were in the lounge room and after they had breakfast. This occurred in the context of the complainant asking him whether he, BAW, had come through the (bedroom door): at times BAW got up to go to the toilet through the night. In response to this question, BAW said “No it wasn’t” and the complainant then said to him “I think (thought) it was Damien that was coming in”. He recalled the complainant telling him that Damien had raped him. BAW recalled that the complainant appeared upset. Later in the interview, BAW said that he did not recall the complainant telling anyone else about what had happened to him;

at the time of this interview, BAW did not recall mentioning the incident to their biological mum; but did recall mentioning it to their dad a couple of months before;

he recalled that when these incidents occurred, he was in Year 3;

he recalled going to Damien’s place for a party on one occasion, to celebrate someone’s birthday. He recalled that he and the complainant were just having dinner. This ended up with someone getting involved in a fight. He identified that his mum was involved in the fight. He understood that that it was because someone was criticising his mother as to how she looked after BAW and the complainant. He understood that someone came up and hit his mum;

he recalled that he and the complainant went over to the house next door to Damien’s house when this fighting had occurred. That was Kylie’s house. Throughout this particular night, being the time when the party was at Damien’s place, he recalled that he and the complainant spent the whole time together;

he thought that the party at his mum’s place (where he understood the assaults occurred) took place before the party at Damien’s house. He estimated that there was a long time between the two parties: Damien’s party occurred during the school holiday. He recalled that as occurring at night-time; after the complainant’s birthday;

he recalled that Damien drove a black Holden Ute;

he could not remember what Damien looked like; and

he recalled visiting Damien’s home twice – once for the party and once to swim in the pool at Damien’s house. He recalled swimming in the pool; which was in the front of the house. He recalled that Damien threw him and the complainant in the pool (after putting a life jacket on both of them).

Cross-examination of BAW (by the Crown)

As indicated, the Crown sought and obtained the Court’s leave to cross-examine BAW for giving unfavourable evidence. The Crown elicited the following further evidence from BAW under cross-examination:

Damien had been to his mum’s place 5 or 6 times. On one occasion he let himself in when their mum was home;

it was on the occasion when Damien let himself in that he was referring to when he told the police, in his record of interview, that Damien assaulted the complainant;

although he had told the police certain circumstances about the assault, he himself did not see them, as he was asleep; and he only found out about them the next morning. He understood that there was a big difference between telling the police what he saw and what he was told had happened;

when he gave his account to the police, when he was aged 12 years old, he had nothing to guide him in his recollections as to what had occurred in 2009 or 2010: he took no notes and kept no diary record. He himself did not tell anyone about his conversation with the complainant which he said occurred the following morning. When he spoke to the police, this was the first time he had spoken to anyone about what had occurred; and

he accepted that when he told the police the assault occurred at his mum’s place, he could not recall the date – he mentioned a Sunday, but was not sure about that day.

Cross-examination of BAW (on behalf of accused)

In the course of cross-examination by the accused’s Counsel, BAW said, in effect:

unlike many other conversations he might have with friends or his brother about ordinary topics, a conversation with his brother about his being raped was likely to be important and therefore likely to stick in his mind;

what he told the interviewing officer was likely to be correct, because he felt safe with her; and she was easy to talk to. He also understood the importance of telling her the truth and that it was a bad thing to tell lies;

when he went to Damien’s place for a swim, the complainant was with him;

on the night that they went to the party at Damien’s place, he, the complainant and their mother walked there, and they left together. It was only the one occasion that he attended a party at Damien’s place;

he was in Year 3 at the time;

he recalled that music was playing loudly. He did not recall what the complainant was wearing;

he acknowledged telling the interviewing officer (Q245) that he and the complainant spent most of the time together at the party at Damien’s place;

he did not recall any incident after they got home. He went to sleep, but not, (as usual) in the shared bed with the complainant. He slept in his mother’s bed;

at the time that the complainant gave an account of what had happened to him, they were in the lounge of their mum’s place at 58 M Road. The conversation was just between the two of them. MJ (their grandmother) was asleep;

his ‘family’ (his dad, step-mum and the complainant) moved to a place in Toukley. This occurred when he was in Year 3;

it was suggested to BAW, but he did not recall, that a conversation occurred as between himself, his dad, his step-mum and the complainant along the lines of BAW saying “It was probably what Damo did”; to which his step-mum and dad said “What”, to which he responded “Damo was in the bed” before the complainant said “No it wasn’t”;

asked what it was that the complainant reported to him, BAW reaffirmed his earlier evidence that the next morning, the complainant asked him whether it was he, BAW, who had come through the door last night; and that when BAW said it was not him, the complainant said “it must have been Damien”;

BAW was asked whether he had since spoken to the complainant about what occurred, including even the complainant’s giving evidence at this trial. Though he saw the complainant the night after the latter gave evidence at trial, they did not speak about it. In re-examination, BAW said he could not recall any conversations with the complainant about Damien otherwise than in connection with the alleged assaults; and

although he said that he saw Damien at his mum’s place 5 or 6 times, he cannot now recall what he looks like. He was not invited by the police to look at photos for the purpose of trying to identify who Damien was.

Evidence of the complainant’s step-mother (TW)

TW is married to the complainant’s father (CW). They began dating in July 2009. They later married in September 2012. She said that CW was staying at a place in Toukley in about August 2009. She later said, under cross-examination, that TW stayed at that place, on and off, from December 2009 until a point where she had moved in. By that point, CW’s relationship with the complainant’s biological mother, DJ, had, of course, well and truly broken down. By arrangement, the complainant and BAW would see DJ on weekends each fortnight; although over time, up until early January 2011, that access had dwindled to being as little as once a month. So, through late 2009 and throughout 2010, TW performed a significant role as carer for the complainant and BAW, assisting the children’s father in that capacity.
TW recalled that the complainant and BAW last saw their biological mother, DJ, on 31 December 2010. It was soon after that, in early January 2011, that TW recalled a conversation with the complainant, BAW and their father (her then partner) in the kitchen at the place in Toukley. The context, as TW recalled it, was that she and her partner were trying to bathe the children. They noticed bruises on the complainant’s body. She recalled that the complainant appeared “stand-offish”. TW asked him what was wrong, but he would not say. She recalled the conversation continuing as follows:

BAW said: “Damo did something (to the complainant).”
She (and CW) said: “What’s that?”
The complainant said: “No. Nothing happened”.

Under cross-examination, TW was referred to part of a police statement she had signed (in June 2016) in which she referred to a similar conversation. It was suggested, and TW did not disagree, that there may have been two such conversations.
TW recalled no further conversation that day, but she recalled a later point when she was discussing with CW whether something might have happened to the complainant. CW mentioned the name of what she understood was the biological mother’s boyfriend. She said that she might have heard of that name.
Then in 2016, a very unpleasant event occurred within the family. TW was attending her baby daughter and heard the boys mucking around. She went in the boys’ bedroom and saw the complainant “on top of” BAW. She demanded that they separate, before calling the Children’s Helpline.
This event triggered a conversation between TW, the complainant and BAW. She asked the complainant how he knew “what to do with” his brother, and, if so, if that had happened to him. The complainant denied that this was so, but BAW said words to the effect “Well, it’s what happened to you”. The complainant then ran off and “shut down”.
The next time she spoke to the complainant on this topic was after she and CW had spoken to the Joint Investigation Response Team (‘JIRT’). Eventually, a point was reached when she had to explain to the complainant that he could not stay in the house with BAW. After this, the complainant explained that he was trying to do to BAW what Damien had done to him. He elaborated, though not to any significant degree, that he had been in bed with Damien, that Damien had touched him and made him do certain things. No further details were discussed at that time. It was TW who took the complainant to the police for his interview in June 2016. She could not recall whether she had spoken to the complainant about the incident since. Later in cross-examination, she said she stated how proud she was of the complainant after his police interview, but there was no discussion about what the complainant told the police.
Under cross-examination, TW denied that there was any ‘family discussion’ about removing the children from the care of their biological mother, DJ. She said that CW had already done this. It was also suggested to, but denied by, TW that she may have had a grievance against “Damien” because she understood that a friend of his had smashed into her car. She responded that no one had ever smashed into her car.

Evidence of the complainant’s father (CW)

The complainant’s father, CW, gave evidence of the status of his relations with the complainant’s biological mother, DJ, and the development of his relationship with his step-mother, TW. At a point where his relationship with DJ broke off, DJ went to move in with her mother (MJ) at 58 M Road, Budgewoi. He started a relationship with TW in 2009. The arrangement for access rights for DJ to see the two boys was that she would see them fortnightly, on weekends. This, however, dwindled to once a month. She stopped seeing them altogether by the end of 2010.
CW recalled an incident, towards the end of 2009, when the children were picked up (from their mother’s place). CW noticed that the complainant was very withdrawn and defensive. He did not wish to exhibit physical affection towards his dad. I infer that he had previously been physically affectionate with CW, prior to this episode. These behaviours were noticed again through 2010. His progress through his schooling also became unsettled. CW recalled that after noticing this behaviour, the boys did not wish to “go back” (to DJ’s place at 58 M Road).
CW recalled that in 2016 TW had reported to him an episode where the complainant had tried to pull BAW’s pants down in the boys’ bedroom. CW did not see this himself, but he heard TW have a conversation with the boys. At this point, CW recalled saying to the complainant words to the effect that “boys don’t do that to other boys, and especially their brothers”. He recalled that the complainant said nothing. The boys were promptly separated and then went to school. After this, the Children’s Helpline was rung.
CW recalled another conversation, not long afterwards. This was when the boys were taken to the JIRT office at The Entrance. He recalled saying to the complainant that what he had done (to BAW) was “not wrong, but not right” to which the complainant responded that he had done “nothing wrong”. The complainant provided no further information at this time.
CW recalled these conversations as having occurred prior to the complainant being interviewed by the police in June 2016. Between June 2016 and February 2017, when the complainant had his second interview with the police, there was another conversation in the bedroom. This was directed to TW, but CW was present in the room. The context here was that the boys were to be separated (the complainant being removed from the house) and CW and TW were explaining to the complainant and BAW why that was so. In the process of providing that explanation, CW recalled the complainant saying “Why mum? It happened to me too. Damien done it to me too”. CW elaborated that this was said amid discussion of his trying to pull down BAW’s pants.

CW recalled asking the complainant who ‘Damien’ was and the complainant responded “Mother’s boyfriend”. CW had not himself met ‘Damien’.

Significance of evidence of complaint

If the reports were made substantially to the effect recalled by BAW, and the complainant’s parents, then I can use them as some evidence, independent of the evidence given of the incidents described by the complainant, when giving evidence. I am entitled to use what was said in that or those reports, as evidence of the truth of what the complainant alleged against the accused, general though that was. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. It is a matter for myself whether that conclusion in the case of the complainant should be drawn. It would be open for me to so treat the particular complaint as evidence of the alleged misconduct by the accused, in addition to the evidence that has been given about it during the trial. If I do use it as some evidence of the misconduct, that is the subject of the charge, then what weight I give it is, again, a matter for me.
Secondly, the evidence of reports has another purpose. The Crown contends that the fact that the complainant reported, albeit in general terms, that he had been, to paraphrase, sexually interfered with by the accused at the time and in the manner that he did would lead me to accept the evidence he gave. In other words, it makes the evidence of the complainant more believable than if he had not reported the allegations as he did.
If I am satisfied that the reports were made, then the question I must ask myself is, did the complainant act in the way I would expect him to act if he had been assaulted as he said he was? Is what he did the sort of conduct I would expect of a person who has been assaulted in that way? If I thought that the complainant had done what I would expect someone in his position to do, that may support the Crown case because I might find that there is a consistency between the complainant’s conduct and the allegations that he makes against the accused.
On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as he described, then that may indicate that the allegation is false. But I bear in mind, when considering this issue, that there may be good reasons why the complainant did not raise or report the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false. In this regard, I refer to the complainant’s evidence that he was threatened by Damien after the alleged assaults had occurred.

Warning: complaint evidence as hearsay

I said that the evidence of complaint could be used as evidence of the truth of what was complained about. However, it is the experience of the law that evidence of out of court statements, such as complaints, or reports, may be unreliable for a range of reasons, including that: it is not possible for me to assess the credibility of the person making complaint or report at the time the complaint was made, so I cannot know whether or not he was being honest; the process of repeating a statement compounds any weakness of the people involved, such as imperfect perception, memory or sincerity; the person making the complaint may have been subject to pressures that caused him or her to make a false statement, which I do not know about; and the statement was not made in a court environment, on oath (or affirmation) and subject to cross-examination.
Counsel for the accused did not identify any particular aspects of the report made by the complainant to his parents in 2016 which was especially unreliable.

Warning: effect of delay

If I did not have regard to what the complainant said to BAW on the morning after the barbecue, the complainant did not expressly complain or report about what he claims that the accused did to him until he told his father and step-mother in 2016.
The delay in making a complaint or report about the alleged conduct of Damien does not necessarily indicate that the allegations 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. I refer to earlier comments above.
However, the delay in making a complaint is a matter that I may take into account in assessing the credibility of the complainant’s evidence as to what he said Damien did. Damien has not, in terms, argued that the delay in making a complaint or report is inconsistent with the conduct of a truthful person who has been sexually assaulted and so I should regard this as indicating that the complainant’s evidence is false.
But there are some practical effects of delay which I should bear in mind regarding the issue of the delay in any complaint being made by the complainant to his parents about what had occurred to him in 2009. I need to fully recognise the effects of delay of complaint on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
In this regard, although no specific reference was made by the accused’s Counsel to the matter, I refer to the following difficulties typically encountered by the accused in testing the evidence of the prosecution, as I see them:

the delay in instituting the prosecution, being many years after the alleged events occurring;

the possibility of distortion in human recollection;

the nature of the allegations is such that (disregarding BAW’s initial evidence) only the complainant said he did the things attributed to the accused;

although he did identify potential witnesses in an alibi notice to say where he was for some parts of 2010, the delay meant that he might have been at a disadvantage in gathering other evidence of his movements in 2009. For example, in 2019, his father, Garry died. His father might have had something to say about the accused’s movements in 2009 and relations between the accused and the complainant’s mother. In saying this, I note that in June 2019, Officer Hayward had spoken to Garry and he took the opportunity to say that the accused ‘wasn’t at the party’ and did not want to get involved. It is possible that he may have been more forthcoming if the complaint had been brought to the police’s attention earlier; and

the prosecution case is substantially based upon the evidence of the complainant.

These difficulties may put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence to establish a reasonable doubt about his guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant’s memory for details would have been clearer. This may have enabled his evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainant’s inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on his evidence by pointing to circumstances which may contradict him. 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.
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.
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 find the accused guilty, 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 been speaking about — the fact that the complainant’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.
I accept, as Counsel for the accused reminded me, that there were at least two instances where the complainant denied to his parents being assaulted by the accused.

Other evidence

Evidence of the complainant’s mother (DJ)

The complainant’s mother, DJ, said that after her separation from CW, she moved into premises with her own mother (MJ) at 58 M Road, Budgewoi. Initially, she lived in a caravan leased on those premises but when the lease over that caravan expired, she moved into the home situated on that land. She confirmed that at a point after the separation, by arrangement, her sons visited her infrequently.
DJ said she met ‘Damien’ at a point when she was helping his father, Garry, who lived at 101 M Road. Garry had another son, Dwayne, who she said lived with ‘Damien’ at the same premises. She was helping Garry to cope with his grief after the death of Garry’s wife, which occurred in June 2009. She recalled visiting Garry a couple of times; and that ‘Damien’ was sometimes there when she did. She denied that she was in a relationship with ‘Damien’ – they were just friends.
When she was cross-examined, with leave, by Madam Crown, DJ said that she attended a birthday celebration for ‘Damien’s’ brother, Dwayne, at 101 M Road. She thought ‘Damien’ was in attendance on that occasion. This was before the two occasions she took her sons to that home that I will now turn to.
She recalled taking her sons to 101 M Road on two occasions. During the course of cross-examination by Madam Crown, who had been granted leave, she indicated that prior to the swim at the pool, she had previously attended the premises – but not with her children – to attend a birthday party for Dwayne. When she said in her police statement (19 September 2017) that she went back home after a party at 101 M Road, and then later returned, she explained that it was this party – to celebrate Dwayne’s birthday – that she was referring to.
The first occasion when she recalled taking her sons to that address was to take them over for a swim. In relation to that visit, she recalled that Dwayne was in the pool and had thrown the children, playfully, into the pool with flotation devices. On this occasion, she recalled that apart from herself, her children and Dwayne, there were two other visitors, a woman named ‘Joanne’ and her own mother, MJ. On this occasion, DJ said that she saw ‘Damien’ as she went to go to the toilet, but he was in his bedroom, on his computer. She did not see him interacting with anyone else, including her children. She recalled that the visit did not last long.
The second occasion was a barbecue. She did not recall when this occurred, or the time of the year. At best, her recollection was that it occurred in 2009 or 2010. But she was somewhat equivocal when she said this: it may have been not long after the swim. She did not recall whether it was for a particular occasion. She said, initially, that she arrived at about 5:30pm. She and her sons had walked there. She later said, under cross-examination by Madam Crown, that she was guessing about the time they arrived there.
Under cross-examination, she was referred to a statement she made to the police suggesting that the barbecue was for Dwayne’s birthday party and had occurred in 2009 or 2010.
In re-examination, DJ confirmed that her evidence concerning a barbecue was about a different event to her evidence of attending Dwayne’s birthday party. It was at the barbecue when she assisted in acting as a ‘bar lady’.
DJ gave evidence that she was unaware that her children knew ‘Damien’, or had met him before, or even were aware that ‘Damien’ was a friend of hers.
She recalled that there were a range of adults on this occasion. One of them, Wayne, and his wife, had a baby. Otherwise, she recalled no other children, other than her own, being there. She said that she saw ‘Damien’, but only saw him in his bedroom. She recalled going to his room to take him a drink; although she accepted that she had not referred to this circumstance in her police statements. Later in re-examination, she said she recalled that she gave him the drink in her capacity in acting as the “bar lady”. She said she did not see him in any other area of the house. After leave had been granted to Madam Crown to cross-examine her, she was referred to a statement she had previously made to police to the effect that she saw him in the vicinity of the toilet where she, and the complainant, encountered ‘Damien’ and ‘Damien’ said to the complainant that he was going to ‘smack him in the mouth’. DJ thought the complainant had been ‘mucking around’, in the sense of being ‘cheeky’, when ‘Damien’ said this in front of the complainant. As it was, when ‘Damien’ said this, she did nothing and said nothing. This encounter occurred near ‘Damien’s’ bedroom door. Later, when cross-examined on the accused’s behalf (upon her recall), she could not actually recall that conversation.
Confronted with this previous statement of Damien’s encounter with the complainant, DJ said that she thought that she told Damien about her two sons and that she thought Damien knew of them at least as at the time of the barbecue. She thought that it was at the barbecue that Damien met the complainant, but she could not actually recall introducing them. Asked to explain why she did not introduce them, DJ said she was only being protective of the complainant and she thought that Damien was preoccupied. She said that the complainant and BAW were with her during the party, though she recalled that they were eating. She herself had a couple of drinks.
It was put to her on behalf of the accused that the accused was not at the birthday party for Dwayne that she referred to. DJ responded that she did not know. DJ was referred to the circumstance of her giving the police no less than three police statements. In none of them did she give the police an account of any event involving the accused and complainant at a party. When it was suggested to her that there was no conversation between the accused and complainant, she said she was not sure on that. Ultimately, it was suggested to her, and she agreed, that her memory of what had occurred at the barbecue had faded.
She recalled leaving around 11:30pm or 12:30am, but accepted that it could have been earlier. She later accepted that this was just a guess. All she recalled was that they left at night-time, since it was dark. Under cross-examination by the Crown, she was referred to her previous statement to the police that she left at 7:00pm or 8:00pm. She said that this was a guess as well. She could not explain why she gave this time estimate to the police.
Before she left, she recalled being involved in a physical altercation with another one of the adults at the barbecue, “Cindy”. This was a reference to Cindy Wall. DJ recalled that it related to Cindy’s opinion that she was leaving her young children out at night-time. She thought that Cindy had overstepped the mark in telling her how to bring up her kids. It was the altercation which, she said, prompted her to leave. She said she was sure that this altercation occurred on the night of the barbecue; not on the occasion of the swim; or the (earlier) occasion of Dwayne’s birthday party.
Later, in cross-examination, the concept of her protectiveness towards her children was explored further. She had, as noted, sought to explain why she had not introduced her children to the accused at the party on account of a sense of trying to protect them. Counsel for the accused asked her to hypothesise her reaction, given how “protective” she was, of her children when being ticked off by Cindy, of what she would have done if she became aware that her son, the complainant, had been grabbed by the neck by anyone. She agreed (in effect) that, on this (bare) hypothesis, her reaction would have been violent.
She recalled arriving home at about 1:00am, but that could have been incorrect. When she gave that estimate, she did so with the qualification that she was not good with times. They arrived home 20 minutes, or so, after leaving the barbecue. She recalled that she had allowed the boys to stay up to watch television. This was, as far as she was concerned, a ‘one off’. She was referred to her statement to the police which recorded her describing that the boys appeared ‘happy and fine’ after getting home and watching television.
She said that her place at 58 M Road had a deadlock, at the front and back doors. She maintained that she always locked the place. She recalled the boys going to bed. She said that she, herself, did not sleep that night. She recalled having coffee with MJ. Under cross-examination, she said that it was not long before the boys went to bed. Other than MJ and her children, she said she did not see anyone else come into the home.
She said she stayed home and did not return to the barbecue. When in cross-examination by Madam Crown, she was referred to an earlier statement about returning to 101 M Road, she said that this was properly a reference to the time she attended those premises earlier, for Dwayne’s birthday celebration, which was the occasion at 101 M Road that the children did not attend.
She said that when she was living at 58 M Road, she sometimes had parties, but often. They were not “big”.

Evidence of the complainant’s grandmother (MJ)

This witness is DJ’s mother and the maternal grandmother to the complainant and to BAW. She confirmed living at 58 M Road, Budgewoi in 2009 and 2010 and confirmed DJ moving into a rented caravan for a time after her break up from CW; and her eventual move into the home. She also confirmed receiving visits from her grandchildren, in visits to DJ, she thought, every second weekend before they reduced to a month; and then not at all (from about December 2010).
On the occasions when the complainant and BAW did visit 58 M Road, to be with DJ, MJ recalled that they generally slept in DJ’s room. DJ stayed on a couch in the lounge room. There was no fold-up bed.
MJ said that she was friends with Garry, the owner of the premises at 101 M Road. MJ met them though a friend (Cindy). After the death of Garry’s wife, Loreena, MJ used to go there and briefly socialise.
MJ recalled taking, or being with, the complainant and BAW at 101 M Road on two occasions. The first was for a swim. This event occurred after DJ had moved into the home at 58 M Road – it might have been a couple of weeks after; she was not sure. On that occasion, she recalled that Garry, his son Dwayne, DJ and her kids, and she were there. She said that “Damien” was not there. At that point, she “sort of” knew who Damien was. She recalled that Damien had been there at times when she visited Garry (without her grandchildren) but that he was either in his bedroom or out the back, with friends.
The second occasion she went, with her grandchildren, to 101 M Road (which occurred after the swim) was when she, DJ and the children went there for a barbecue. She recalled that they arrived at about 5:00pm. She recalled that they had walked from their place at 58 M Road. Later, under cross-examination, she said she thought that the weather was warm.

MJ recalled that Damien was there: she saw him out the side, near where the barbecue was. She recalled speaking to Damien: Damien had come out to say hello to her and he suggested that she and “the boys” should have something to eat. MJ recalled that the boys were running around in the driveway. MJ confirmed that he was there at the barbecue.
MJ recalled that later in the evening, on the day of this barbecue, an incident occurred between DJ and Cindy. She recalled Cindy mentioning, or suggesting to DJ, that as it was getting dark, DJ might want to consider taking her sons home. DJ was not happy with this suggestion and MJ recalled that an argument ensued; though she did not recall any physical altercation between them.
At MJ’s suggestion, she recalled that DJ took the boys home. She thought that was around 8:00pm or 9:00pm, though she was not sure of the time. She followed not long after. She recalled that when they got home, the boys stayed up. They were in the lounge room with DJ watching television. She recalled seeing them go to bed.

Cross-examination

It was suggested, and MJ agreed, that it was not until June 2019 that she turned her mind to the events occurring virtually 10 years’ before and those events were personally insignificant to her: taking her grandchildren to a swim and a barbecue in a place in the neighbourhood.
The limitations in her recollections were revealed when she said she did not recall when she had left 58 M Road (as her residence); and could not recall when Garry’s wife had passed away.
Counsel for the accused read out to her an account she had given to the police in her interview in which she had recalled to the police that the purpose for the barbecue was to go over to celebrate the sale of Garry’s house, at 101 M Road. It was suggested that this might have occurred in 2011, but MJ was unsure. MJ said that this reference to the sale of the house as being the occasion for the barbecue was wrong. She meant to say that the occasion for the barbecue was the celebration of Dwayne’s birthday. Counsel for the accused put to MJ that Damien was not at any barbecue to celebrate Dwayne’s birthday but MJ said he was.
She was asked about the argument (purely verbal as she recalled it) between DJ and Cindy. She did not know what the complainant and BAW were doing.
When they got home to 58 M Road, she repeated her evidence that the kids and DJ were in the lounge room. She also said that her door was such that she could hear, within the house, when it opened and shut. From the time she got home, she did not hear it open or close. So far as she was concerned, the boys were asleep in DJ’s room and they, DJ and she were the only people she saw and heard in the house that night.

Re-examination

MJ was asked about the mix-up in the information she gave to the police. She clarified that her position that, insofar as she recalled, the times that she was with her grandchildren at 101 M Road was (a) the swim; and (b) the barbecue. At the latter event, she saw Damien and said hello to him. She reiterated her evidence in chief that Damien had suggested that she and the boys have something to eat. MJ did not see Damien with the boys at the barbecue.

Evidence of Kylie Harman

In 2009 and 2010, Kylie Harman lived next door to 101 M Road. She had lived there for a long period; only moving out in 2014 or 2015.
Ms Harman knew Garry’s deceased wife (or partner), Loreena. She recalled that Loreena passed away on 18 June 2009. She was unchallenged on that evidence. Indeed, it precisely accords with a death certificate for Loreena which the Crown later tendered.
She also said she knew the accused. She said that they shared an interest in taking marijuana. She took a lot of marijuana at this time. She also said that she knew DJ. That was also because of marijuana.
She recalled that after Loreena’s passing, the incidence of parties at 101 M Road increased. She recalled going to one such party for the purpose of getting marijuana from Damien. She said she understood that it was a party for Dwayne. She was challenged on this evidence under cross-examination: it was put to her that Damien was not at 101 M Road on the occasion of celebrating Dwayne’s birthday. She maintained that she acquired marijuana that night and that she saw Damien there at the party; at least at the early stages of the evening.
She said that she recalled a party late one afternoon or early evening, after Loreena’s death. She did not know whether DJ was there. She understood that DJ had two children, but she said that she did not see them. She said she had her own child at the time.

Evidence of the accused’s uncle (Shane)

Shane is the accused’s uncle: he was the brother of Loreena, now deceased, who was Garry’s wife (or partner).
Shane recalled attending a number of parties at 101 M Road, but said he was hardly there after Loreena’s passing.
He recalled attending a celebration for his other nephew, Dwayne’s birthday. He recalled that Dwayne’s birthday fell on 18 March. Asked (by me) why he was so specific, he pointed out the remarkable co-incidence that this was also the birthday of his own mother and father.
He said he recalled that the celebration occurred either on the Saturday before or the Saturday after 18 March; he could not precisely recall which one.
He could not recall children being in attendance at this party; other than, perhaps, Wayne’s child. He recalled no altercation between attendees. To his recollection, it was one of the “quietest” 21st birthday parties he had attended. He added that he had not been back here ever since.
He said he could not recall Damien being there on the occasion of the 21st birthday celebration. He also explained that whilst he thought that Damien was working in Mackay (presumably Queensland), Dwayne had told him that Damien had been ‘locked up’ in custody at Silverwater (correctional centre).
He estimated being there on about 4 occasions for barbecues, from the time the property was purchased until the time of the celebration of Dwayne’s 21st. The only barbecue at 101 M Road he recalled Damien being in attendance at occurred in 2006, at a time when Shane was with a former girlfriend. However, he acknowledged that he was an interstate (presumably) bus driver, spending weekdays in Melbourne or Brisbane. This required him to leave Sydney on Sunday afternoons, or Monday mornings.

Cross-examination

This was brief. Shane said that he visited the accused in jail about 7 months ago when his father (Garry) died. He also spoke with him briefly after this mother’s burial. He has visited him on other occasions.
With reference to dates, and particularly Loreena’s death, Shane thought that the sale of 101 M Road was completed around the middle of 2010.

Evidence of the accused’s brother (Dwayne)

This witness is the accused’s brother. He gave evidence of having a celebration of his 21st birthday party at 101 M Road, Budgewoi. Given that he was born in March 1989, this placed the birthday celebration as occurring in March 2010. He recalled that it was a Friday night. What triggered this recollection was that on that day, he was helping a friend of his late father move home. That friend brought him home and helped to assist with setting up the party. He also said that this was the one and only celebration of his birthday that he could recall.
As at March 2010, Dwayne said that his father was living there. This occurred after his mother had died in June 2009. He thought that the place was sold in about November 2009. He recalled that there were other barbecues at this place.
Dwayne recalled that, from the time his mother had died, the accused did not live there, but he recalled the accused visited the place before June 2009. He could not recall him being there after their mother had passed away: he recalled that he did visit after he had been let out of gaol.
Asked about the 21st birthday party, Dwayne recalled that there were no kids and he recalled the presence of a stripper. He did not recall any fight.
He recalled certain people in attendance. The list of people did not include the accused. Nor did it include DJ. He knew DJ through the latter’s elder sister. He was aware that DJ and the accused were friends in 2009. He recalled being at 101 M Road when DJ was there. She had come around, on average, a couple of times a week after his mother passed away in June 2009. Dwayne could not recall the accused being there when she did, at least until the point after the sale of the house occurred (which he recalled occurring in November 2009).
He said that he did not recall DJ bringing her kids around to 101 M Road for a swim, though he accepted that she might have.

Cross-examination

Dwayne drew a diagram (Exhibit 2) of the home at 101 M Road. Relevantly, the diagram depicted a row of bedrooms on the left side of the house (from the point of entry). He slept in one room and, on the occasions he visited, the accused slept in another. They were next door to each other. Dwayne’s room had a sliding door enabling access to the pool outside. Looking at the diagram (from the front), he identified his room as being the most ‘upper’ room on the left side. The accused’s bedroom had windows from which the pool could be seen. “Damien’s bedroom” was in the centre on the left side of the diagram. There were curtains over the windows in the accused’s bedroom. With reference to the complainant’s sketch of the layout of the home (Exhibit A.3), the bedroom in which the complainant said he was assaulted was in Dwayne’s room; not Damien’s bedroom.
Other points that emerged from the cross-examination were Dwayne’s evidence:

of the accused living in Mackay in the 3 years leading up to his mother’s passing (in June);

that he lived at 101 M Road until it was sold – he thought – around November 2010;

on the night of his 21st birthday party, he went to bed, in his own bedroom, around midnight;

prior to going to bed, and aside from walking through it to gain access to the pool area, he did not recall being in his bedroom;

he was in and out of the house during the party; and

when he ended up going to bed, he recalled that his bedroom was in a tidy state.

Other documents relied upon by the Crown

The Crown tendered through the officer-in-charge, Detective Senior Constable Hayward, the following documents:

an architectural drawing of 101 M Road, Budgewoi, indicating the positioning of a pool on the left side of the main building, as one looks front on to the entrance (Exhibit C);

a Land Registry Services extract indicating the transfer of 101 M Road, Budgewoi on about 16 March 2011 (Exhibit D);

lease documents relating to DJ’s rental of a caravan. This included a tax invoice indicating rental due in the period from 24 July 2009 to 7 August 2009 (Exhibit G);

birth certificates for:

the complainant (Exhibit H);

the accused (Exhibit I); and

Dwayne (Exhibit J),

death certificates for:

the accused’s mother, being 18 June 2009 (Exhibit K);

the accused’s father, being 5 October 2019 (Exhibit L), and

a (redacted version of a) document produced by the NSW Department of Corrective Services containing a record in relation to the accused (Exhibit M). The document appeared to indicate that the accused was admitted to a correctional centre on 11 January 2010 and was released (for bail) on 15 April 2010.

Officer Hayward also gave evidence about her inquiries of the cars identified by the complainant at 101 M Road. Officer Hayward found that registration details indicated that the accused was a user of a blue or grey Holden Commodore Sedan. His late father was identified as the primary owner. Officer Hayward also gave evidence that on 3 January 2010, the accused had been identified by police as driving a different vehicle, a blue Holden Commodore.

Lies and consciousness of guilt

On 6 June 2017, during the course of the process of extraditing the accused to New South Wales, the Crown says that the accused made statements to Officers Hayward and Rawling. The context for this was that the Officers explained to the accused why they were there and asked him whether he consented to being extradited. He consented to this course. The order for extradition was made later that day. But after the accused indicated his position, Officer Hayward foreshadowed that if the order for extradition was granted, they would speak with him further in New South Wales.
It was after this that the accused allegedly said to the two police officers that: (a) he was not in Budgewoi in 2009 and; (b) he did not know the complainant.
It was put to Detective Senior Constable Hayward that in response to the question raised by the accused whether he consented to extradition, the accused said to the officer “I know a (then he stated the name of CW), but don’t know (then he stated the name of the complainant)”. Officer Hayward did not recall him saying this to her.
The Crown relies upon these statements as implied admissions. They were implied admissions in the sense that they were lies or evinced a consciousness of guilt.

Warning regarding admissions

I approach the evidence of Officers Hayward and Rawling of these statements by the accused with caution. This is because the circumstances in which it is alleged that the suggested admissions were made may make the evidence unreliable. I do not say that such evidence is inherently unreliable. The reliability of the evidence is a matter for me to decide. I must, however, be cognisant of the possibility that evidence of this kind may be unreliable and to consider why that is so. There are a number of reasons why the evidence may be unreliable. Generally, it is easier for police officers to fabricate their evidence than it is for the accused to have evidence available to challenge what they have said.
First, although Officers Hayward and Rawling had a notebook and the capacity to record what they said to the accused, and what, if anything, he had said, they did not use it. Even if I accepted their explanation for not recording the statements – that they were not made during the course of “official questioning” of him – the fact remains that there is no confirmation that those admissions were made independent of the officers who say that they were made by the accused.
Second, there was no-one present during this conversation in Rockhampton except the accused and the police officers. That state of affairs is not improper. The police officers were perfectly entitled to ask any questions of the accused alone. What this means, however, is that there was no independent person present who might have been able to support the accused’s challenge to the police evidence.
Another matter I take into account is that the accused had no opportunity to make any note of his conversation with the police officers at the time of that conversation. A note made by the accused at the time might have enabled him to challenge the evidence of the police officers more persuasively.
All of these matters mean that the evidence of the police as to the disputed admissions may be unreliable. For this reason, it is necessary for me to approach their evidence with caution in deciding whether to accept it and what weight, or significance, I should give to it.
As I have said, there are two matters for me to decide. The first question for me to decide is: were the admissions made?
The second question for me to decide is whether, on the basis that I accept that the statements were made, what use I can make of them?
Separately, and in addition to the direction I have given myself as to the reliability of the statements attributed to the accused by the police officers, I note that the accused’s counsel submitted that pursuant to s 165(1)(f) of the Evidence Act1995 (NSW), I should also warn myself about the reliability of oral evidence of questioning by the police officers, to the accused in Rockhampton in June 2017. In my reasons for admitting into evidence the alleged admissions of the accused to the officers, I observed that the expression ‘questioning’ in s 281 of the Criminal Procedure Act bore the same meaning as ‘questioning’ under s 139 of the Evidence Act. So, too, in my opinion, does it carry the same meaning as ‘questioning’ under s 165(1)(f). In my earlier ruling on admissibility of evidence of the statements, I held that such question, or questions as Officers Hayward and Rawling raised of the accused in Rockhampton in June 2017 did not constitute questioning. There is no occasion, therefore, to direct myself further to the question of the reliability of the police officers’ evidence.

Directions about the use of evidence

The Crown says that each statement was a lie because there were facts which showed that the accused was in Budgewoi in 2009 and also knew of the complainant. There are a number of matters about which I need to direct myself.
First, I must recognise what a lie actually is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made the statements I have just referred to, and find each of them was a lie, I may take the lies into account as evidence of the accused’s guilt, but can only do so if I find two further things which I will refer to shortly. They can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told lies that this finding can prove the guilt of the accused by themselves.
Apart from the fact that the accused (a) made the statements and (b) that they amounted to deliberate lies, before I can use the lies as some evidence of the accused’s guilt, I must find two further matters proved.
First, I must find that what the accused said that amounts to lies relates to an issue that is relevant to the offence the Crown alleges that the accused committed. It must relate to some significant circumstance or event connected with those alleged offences. The Crown says it is relevant because the Crown says that facts in issue are the place of the offences (being a property in Budgewoi) and identification that it was the accused (rather than, say, some other ‘Damien’) who knew of the complainant.
Second, I must find that the reason the accused told these lies is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
The Crown says I would be satisfied of that because the only reason for him making these statements was to throw police ‘off the scent’.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, then the lies cannot be used as evidence of the accused’s guilt. If that is the case, I must put them to the side and focus my deliberations upon the other evidence in the case.

His evidence needs to be treated with considerable caution unless it is corroborated, or consistent with objectively provable facts or logic. Thus, for example, I place weight upon his evidence of the complainant reporting to him what had occurred, having regard to the evidence of the complainant, TW and CW.

TW

I was impressed with TW as a witness. Although she sometimes answered in a way that went beyond the question that was raised, my impression was that she was doing so not to advance the Crown’s cause, but that she was trying to track in her mind the question in the sense of verbally mulling it over, in her mind, how she recalled a certain event. I note that her cross-examination was brief. I also note that Counsel for the accused relied upon the correctness of her recollection of the complainant’s reporting of what occurred when cross-examining the complainant and BAW. There was, in fact, very little challenge to her credit. She did not exaggerate and without reservation indicated when she could not recall something occurring. I have no reservation in accepting her truthfulness and her reliability.

CW

I have no doubt regarding CW’s honesty. I considered that he struggled, somewhat, with dates, which was unsurprising in the circumstances. He was scarcely challenged about the substance of his account; which I also regard as reliable.

DJ

The Crown submitted that DJ was an unimpressive witness. I agree. In fairness to her, she accepted that her recollections of timeframes and events going back to 2009 and 2010 were “unclear”. That soon became apparent when she commenced giving her evidence. During the course of her evidence, the Crown sought and was granted leave to cross-examine her in relation to prior inconsistent statements she had made to the police; specifically in relation to the times that she arrived and left the barbecue at 101 M Road. When she was referred to her earlier statement (dated 19 September 2017) she indicated that the sequencing of the paragraphs in the statement were out of order, notwithstanding that she had read and represented to police that its contents reflected her understanding and recollection, with the result that the parts of the statement she was referred to concerned a different social function. More troublesome was her admission that she had recourse to a diary, prior to her giving evidence, when she had the opportunity to provide it to the police at the time she was giving her evidence. She did not deliver it to police because of her sense of privacy as to the content of the diary; irrespective of the possibility that it might contain important information relevant to serious criminal offences allegedly perpetrated against one of her sons. In the end, the diary was produced, but not tendered, but the conduct showed a willingness to put considerations relating to self ahead of allowing for the discovery of information which might disclose the truth of what occurred.
Then, in reference to a written statement she signed (in June 2019) in which she had previously stated that the accused and the complainant had been in each other’s vicinity when she took the complainant to the bathroom, and when her evidence was that this was the first time she recalled that the complainant had met ‘Damien’, she explained that she did not feel the need to introduce the complainant to Damien since Damien “had a lot on his mind”. I regarded that evidence as implausible; if not evasive.
In fairness to her, I note that there were occasions which, because of her recollection of certain distinctive features, she was able to render assistance to the Court as to the happening of certain events. Nevertheless, it is not an overstatement to say that there was a great deal of what she indicated to the police in her multiple police statements which she renounced under cross-examination. For much of her evidence, I considered that she was simply guessing. I would be very cautious in accepting her evidence unless corroborated or it is consistent with other objectively provable facts, or the logic of events.

MJ

I accept MJ as a truthful witness, but she struggled significantly piecing together her recollections. She renounced evidence that she had given to the police about the reason for being over at 101 M Road on one occasion. To refer to her difficulties is by no means a criticism, given the significant lapse of time about events which, in retrospect, had little significance for her. Further, the preponderance of evidence suggests that there were a not insignificant number of social occasions at 101 M Road in 2009. There were snippets, however, where her recollection about certain things was stronger than others. For example, she was firm about her recollection that Damien was in attendance at a barbecue attended by her grandchildren. But overall, I am cautious in my assessment of the reliability of her evidence.

Kylie Harman

This witness was candid to the point of conceding that she had engaged in taking illicit substances many years ago. For this and other reasons, I had little doubt that she was trying to tell the truth. But, as Counsel for the accused fairly pointed out, at the time the material events occurred, she was at a generally difficult stage of her life and was drinking regularly and taking illicit drugs. So when in March this year, she reflected on events that occurred virtually 10 years before (if not longer), there was the added disadvantage of reflecting on events which, inherently she had viewed through a haze (metaphorically and perhaps literally). That said, there was little challenge to her recollection; other than when she identified Damien as being present at the birthday party for Dwayne.
In any contested factual issue, I am more inclined to accept her as reliable only when dealing with her general recollections and am reluctant to accept her evidence as to detailed matters, unless corroborated.

Shane

I consider that Shane was credible. He also had a firm recollection of certain events by reference to particular dates. He did not seek to conceal any absence of recollection of certain things, such as the presence of children at parties at 101 M Road.
Plainly, he is close enough to the accused, and is probably aware of the serious charges against him, but I did not gain the impression he was trying to push anyone’s barrow. I thought he was generally reliable.

Dwayne

I considered Dwayne gave his evidence honestly and his recollections were both plausible and reliable. As with Shane, I did not consider that he was in any way trying to advance the interests of the accused.

‘COMPLAINT’ EVIDENCE

I find that in the period between when the events occurred, in 2009, and 2016, when the complainant disclosed to his father and step-mother what had happened to him, he had previously reported, in a highly general sense, to his younger brother, BAW, that he had been assaulted by Damien.
I interpret BAW’s evidence in his record of interview as amounting to a disclosure of a report that he had received from the complainant. Though there were problems with the reliability of his recollections which I have alluded to, BAW referred, for example, to the complainant being the subject of penile-anal sex with ‘Damien’. That report could only have been provided to him by the complainant.
Then, in 2011 and in 2016, TW gave evidence of hearing BAW refer, in oblique terms, to things that ‘Damien’ had done to the complainant.
I find that the complainant had given this first report to BAW the following morning, although that was in very general terms – probably so general as to be unintelligible to a boy of BAW’s age. But BAW, even at this tender age, understood that the complainant was complaining that “Damien” had done something to him that was wrong. In this regard, I find that on the morning after the barbecue that the complainant did check with BAW whether BAW had come into the room, rather than Damien.
The more overt complaint, although again, it might be regarded as more of a ‘report’ than a ‘complaint’, occurred in 2016. It was this which triggered the police investigation. I accept the evidence of both TW and CW that the complainant had been observed engaging in ‘improper’ conduct towards BAW. When he was chastised, BAW noted that the complainant was only doing “what Damien did to him”. This set the hares running, including the involvement of the Children’s Helpline. When it was explained to the complainant that not long thereafter, he would have to be separated from his younger brother, he remonstrated that he was only doing to BAW “what Damien had done to him”. Unsurprisingly, this provoked further inquiry by TW and his father, which resulted in the complainant’s disclosure.
In this haphazard or unintended way, the complainant had reported a complaint that he had implicitly been interfered with by Damien, in a sexual way. It was not long after this that he had his first record of interview with Officer Hayward.
Having taken into account the warnings, and having regard to my observations of him as a witness and the evidence from the other witnesses, I reiterate the findings I made about the complainant’s reports. In my opinion, they are consistent with the complainant being a young man who was very reluctant to make complaint until he felt that circumstances were such that he felt he should do so: his separation from his younger brother which he evidently sought to prevent. I accept that the reports were not detailed. He started to provide detail when the police became involved, but that followed shortly after the disclosure to CW and TW in 2016.
I find that the complainant’s reports augment his credibility and reliability and the reports constitute some additional evidence which supports the Crown case that the accused engaged in the alleged acts.
Acceptance of the complainant’s credibility and reliability, enhanced by the evidence of his reporting or complaining about what occurred, is not conclusive, let alone sufficient, in establishing the accused’s guilt beyond reasonable doubt. I must consider the balance of the evidence before finally determining whether the Crown has discharged its onus of proving guilt.
I now turn to other evidence. The first is whether the accused told lies; the second is when the occasion for the alleged offending occurred and, thirdly, whether the Crown can exclude the reasonable possibility that the accused was not present on that occasion.

LIES AND CONCIOUSNESS OF GUILT

I refer to the directions I gave myself about this topic above. I find that the accused did say to Officers Hayward and Rawling in Rockhampton that he:

was not in Budgewoi in 2009; and

did not know the complainant.

As a foundational stone for a finding to be made about consciousness of guilt, I must find that the accused told deliberate lies.
I am not persuaded that when he said these things, he was telling lies.
The context is critical. The accused was provided with a copy of an arrest warrant. The warrant (Exhibit N) did not list the name of the complainant. It did not refer to Budgewoi (but rather Halekulani). It did, however, refer to the date of the offence being either 1 May or 31 December 2009 – clearly a long time ago, as of June 2017. I find that Officer Hayward mentioned both the complainant’s name and Budgewoi during the course of her paraphrasing the content of the arrest warrant as part of explanation to the accused why she and Officer Rawling were there. The accused was not legally represented. He was not questioned, in the sense of “official” questioning, and he was informed that if his extradition proceeded, he would be questioned by the officers.
As to the content of the statements he made, firstly, to say that he was “not in” Budgewoi in 2009 is inherently ambiguous. Does it mean he was not living in Budgewoi? Does it mean he was not working in Budgewoi? There was evidence of Dwayne that he was working outside Budgewoi but, for some part of the year, visited his father at Budgewoi.
The Crown points to other facts which establish, objectively, that he did live in Budgewoi at some point in 2009. A computer printout was relied upon for this purpose listing his addresses. However, there was evidence by Shane that although he was at 101 M Road on occasions in 2009, he was thought to be working in Mackay.
The statements were, to reiterate, made about a circumstance or circumstances occurring 6 or 7 years before. I cannot discount the possibility that, on the subject of the address, he underestimated the period he was living at 101 M Road. I note that the house was actually sold in March 2011 (Exhibit D). It is possible that the accused got his timing wrong.
As to the other statement, that he did not know the complainant, to repeat, it was Officer Hayward who mentioned his name – it did not appear in the arrest warrant.
There was evidence at the trial – which for reasons I will come to, I accept – that the accused had met and did know the complainant. There was also a vigorous contest as to when and how often the accused had met the complainant. I think it is not controversial to say that, at its highest, the Crown case was that the accused had met him twice and that the second time occurred on the date of the alleged offending. So, when the accused made the statement in 2017, he was making a statement about not meeting someone who, at most, he allegedly met twice six or seven years before.
Another aspect to this is his recollection of the complainant’s name. Suppose it is accepted that he might have remembered the complainant’s face or physical appearance. He might also have remembered that DJ, a friend of his 8 years before, had two (young) boys at the time. But he did not make a statement about the complainant’s appearance or what DJ had said. I consider that his statement could reasonably be understood as conveying that he did not know anyone by the name of the complainant; although even there, there may be some doubt. By saying that, there may be some ambiguity: if he said he did not “know” the complainant arguably he might have intended to convey that he had not “met” the complainant, but they are not the same thing.
There was no evidence to suggest that in making either of these statements, the accused had anything to resort to other than his own recollections, unassisted by documentation.
I have no doubt that the accused was, instinctively, perhaps impulsively (and without the benefit of legal advice) attempting to positively convey the state of his recollection. But I am not satisfied, to the requisite level of proof, that by doing so, he was making statements which he actually (and not constructively) knew were false at the time he made them.
This finding means that I reject the Crown’s submission that the accused told lies because he was fearful of what might occur if he told the truth.
As to the latter aspect, although it is unnecessary for me to finally consider it, it appears to me prima facie unlikely that the accused could have believed that, by making these statements, these police officers, who had travelled to Queensland for the purpose of extraditing him back to New South Wales, he might be able to throw them “off the scent” by knowingly making these false statements. If it is unlikely he held the belief, it makes it less likely that he could have intended to achieve that result. Madam Crown rhetorically asked why else would he have made the statements. But this neglects the context in which they were made. Although I had earlier determined, in my ruling on the admissibility of the statements, that the officers did not engage in “questioning” of the accused, that is an objective finding of fact. The relevant inquiry here is subjective: why the accused made the statements. I consider that it was at least possible that, in response to Officer Hayward paraphrasing the allegations, the accused – not then represented – felt impelled to respond to them, admittedly in a positive way, but doing so when unaided by anything other than his recollections.

WHEN THE OFFENDING CONDUCT COULD HAVE OCCURRED

Madam Crown accepted that the offending conduct could not have occurred between 11 January and 15 April 2010. I also find that it was in this particular interval that there was a celebration for Dwayne’s 21st birthday at 101 M Road. Madam Crown submitted, more than once, that the Crown did not contend that the offending could have occurred at Dwayne’s 21st birthday celebration, since no children (other than perhaps a baby) were either invited or attended. I find that this this occurred in March 2010. It might be added that, to the extent that Officer Hayward made inquiries of the persons listed on the accused’s alibi notice, and obtained any substantive response, at its highest for the accused, it appeared that they informed the Officer that the accused did not attend ‘the’ party, being a reference to Dwayne’s 21st birthday party.
Madam Crown kept open the possibility, however, that the occasion for an assault may have occurred from 16 April 2010 to 22 July 2010. In my opinion, there is no evidence, and certainly not to the requisite standard of proof, that the offending conduct could have occurred during that particular time interval.
I reject the submission advanced by the accused’s Counsel that the conduct could only have occurred between March 2010 and July 2010. The implied premise for that submission was acceptance of BAW’s estimate as to when it occurred (being after his own birthday, relative to the date of the complainant’s birthday). As noted, I generally found BAW’s evidence to be unreliable.
The Crown case therefore requires my finding that the offending conduct occurred from 23 July 2009 to no later than 10 January 2010.

Many social functions at 101 M Road – second half of 2009

I find that there were a range of social functions at 101 M Road in the second half of 2009. This, I note, was after the accused’s mother, Loreena, had passed away.
In this regard, there were a range of witnesses who said they attended social functions in this period. I accept that the reliability of each of these witnesses may not be impeccable, but in my view, the circumstance that they all gave evidence to similar effect collectively gives weight to their evidence in this particular respect.
DJ gave evidence of many social functions at 101 M Road in this half of the year. This was corroborated by Dwayne, who recalled DJ going over there, on average, a couple of times a week. It was in this half of the year, that DJ came to be close to Garry, the owner of the property, and through whom she developed (at least) a friendship with the accused. Kylie Harman gave evidence about a pick-up in social occasions at the premises after Loreena’s death. MJ and Dwayne also referred to the social occasions.
The complainant said that he thought that the barbecue – or what he understood was a ‘party’ – occurred in December 2009. He thought it may have been 16 December. This estimate was based upon the thought that it occurred in school holidays. This recollection was based upon a further recollection of his receiving presents – apparently from DJ – before the function. Though he naturally could not be definite about this, I regarded this evidence as probative and reinforced the likelihood of the event occurring towards the end of 2009. He said he wore shorts to a party that was intended to go into, at least, the early evening. He recalled that it was warm. MJ also thought that the weather was warm. The adults were mainly gathered in the driveway during the evening which also tends to indicate that the weather was at least mild at night-time and (presumably) warmer earlier in the afternoon.
DJ said that she thought that the barbecue followed the swim by a few days.
BAW thought, in his interview that the weather was cold. His evidence was, in many ways, something of an outlier when it came to this and other events.

I do not consider that it is necessary to be definitive as to a date. There were many social functions at 101 M Road in the second half of 2009. I think it is more likely than not that the barbecue occurred there towards the end of 2009.

IDENTIFYING THE ACCUSED AT THE BARBECUE

The Crown relied not simply upon the recollections of witnesses, but at least other things or documents to establish the likelihood of the accused being present at a barbecue at 101 M Road in 2009.
First there was the record of the accused’s addresses (Exhibit O). This linked him to 101 M Road as at 2009. As the Crown submitted, there was no suggestion that any ‘Damien’ at the premises at 101 M Road was any Damien other than the accused.
Secondly, the complainant gave a description of the accused’s physical appearance to the police in 2016 (Q&A 541-555). He was not challenged on the accuracy of that description. This included an account of what the accused was wearing. In this regard, I agree with the submission of Madam Crown that if the accused had engaged in the conduct that the complainant said he did, the description was likely to be etched in his mind.
Thirdly, whether or not there was any formal ‘introduction’ on the night of the barbecue, as I have indicated, notwithstanding that she later expressed doubt about it, and as I have previously stated, I consider it more likely than not that DJ did witness an encounter between the complainant and the accused outside the toilet. A feature of that encounter, as DJ conveyed it to Officer Hayward, was the complainant being ‘cheeky’ towards the accused. This is what prompted her recollection of the accused’s ‘smack you in the mouth’ retort to the complainant. The circumstance that the complainant was ‘cheeky’, however, suggested that he was, at that time, comfortable with the accused; however long he had known him for.
Fourthly, in 2009 (to BAW) and later in 2016, to CW and TW, the complainant identified his assailant by name, as “Damien”. Contrary to DJ’s evidence that the kids had never met Damien, nor heard of his name before the barbecue, I consider it more likely that (as the complainant recalled) DJ had described or referred to Damien to them as being her “friend” before the barbecue, and, at least before the alleged assaults had occurred.
Fifthly, when giving his account of the assaults, the complainant said that he could see the accused through the mirror. There was no real challenge to that evidence.
Sixthly, there was evidence from DJ identifying him as being there. She recalled giving him a drink whilst performing her role as “bar lady” on the occasion of the barbecue.
Seventhly, there was evidence from MJ who the accused knew well enough to suggest that she, and DJ’s kids, might take care to have something to eat.

GOOD CHARACTER

I have taken into account the evidence of the accused’s good character in the respect articulated in determining whether the Crown has discharged its onus. The circumstance, however, that he has not previously been convicted of sexual offences has very limited weight. At the time of the offending, he was only a young man, being 21 years of age. Further, the circumstance that a person is regarded as being of good character may explain why s/he is in a position to commit offences of this kind. Here it assisted him to the extent that DJ took her children to 101 M Road (as she previously had for a swim) under the assumption that the accused was of good character in this respect. Finally, for any offender, there will always be a time when that person was regarded as being of prior good character in relation to the offence(s) for which the person has been convicted.

SUMMARY OF FINDINGS TO DATE

It might assist the reader at this point if I summarise the essential findings as I have determined so far in these reasons:

I generally regarded the complainant to be a credible and reliable witness; notwithstanding some inconsistencies and conflicts with the evidence other evidence which might, in some particular respects, be preferred to the complainant’s evidence;

his evidence was, in material respects, corroborated by a range of other witnesses;

his credibility was enhanced further by reports he gave of the assaults to his brother, and later, his father and step-mother;

there were other indications in the evidence supporting his reliability;

I did not regard any delay in informing his father and step-mother about Damien’s assault as conduct which was not consistent with what might have been expected of him;

the social occasion at which the complainant said the offending conduct occurred was not Dwayne’s 21st birthday party in March 2010;

the alleged assaults could not have occurred in the period 11 January 2010 – 15 April 2010;

the social occasion did not occur in the period from after March 2010 but before 23 July 2010;

there were many social occasions at 101 M Road in the second half of the calendar year in 2009;

on one of those occasions, towards the end of 2009, there was a barbecue. At this occasion, DJ, MR, the complainant and BAW attended;

the accused was also in attendance at this barbecue. Records showed that he lived at the premises at the time;

the complainant identified the accused at such barbecue before the offending conduct occurred; and

there was no other ‘Damien’ who, it could reasonably be said, was at this barbecue.

THE PARTICULARS OF THE SEXUAL ASSAULTS

I have considered closely the evidence for each count. It is fair to acknowledge that at different times throughout his evidence, extending back to his records of interview, and his evidence at trial, there has been some difference in the complainant’s recollection of when he heard a voice from the door, in terms of the sequence of the offending conduct.
Nevertheless, a close perusal of the evidence as a whole, which contains multiple descriptions of the acts the subject of each separate count, leads me to find that the complainant has identified each of the particulars of the sexual assaults for each separate count.
Having regard to the evidence as a whole, I am satisfied that the Crown has proven beyond reasonable doubt the element, for each count, as particularised, that the accused had sexual intercourse with the complainant in the period 23 July 2009 – 22 July 2010, with the complainant. It being accepted that the complainant was under the age of 10, it follows that the Crown has established that the offence in each count occurred, beyond reasonable doubt

VERDICT

I find, therefore that:

On Count 1 of the indictment, that between 23 July 2009 and 22 July 2010 in Budgewoi, the accused had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act 1900 (NSW), I find the accused guilty.

On Count 2 of the indictment, that between 23 July 2009 and 22 July 2010 in Budgewoi, the accused had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act 1900 (NSW), I find the accused guilty.

On Count 3 of the indictment, that between 23 July 2009 and 22 July 2010 in Budgewoi, the accused had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A of the Crimes Act 1900 (NSW), I find the accused guilty.

Further, at the Crown’s request, and without objection from the accused’s legal representative, I formally convict the accused on Counts 1, 2 and 3 on the indictment.

**********

Endnotes

Amendments

11 June 2020 - Correction of minor typo.

29 June 2020 - Minor deletions to remove potential identifying information (to reflect publication restriction).

Decision last updated: 29 June 2020

Medium Neutral Citation:	R v DLW (No. 4) [2020] NSWDC 284
Hearing dates:	25-29 May 2020, 01-02 June 2020
Date of orders:	09 June 2020
Decision date:	09 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 276-277
Catchwords:	CRIMINAL LAW – trial by judge alone – child sex offences – sexual intercourse with a person under the age of 10 years – whether complainant credible and reliable witness – complaint evidence – whether accused told lies and whether this manifested a consciousness of guilt – whether Crown can disprove alibi defence
Legislation Cited:	Crimes Act 1900 (NSW), ss 61HA, 66A Criminal Procedure Act 1986 (NSW), ss 133, 281, 293A, 306U, 306W, 306X Evidence Act 1995 (NSW), ss 139, 165
Cases Cited:	R v Winner (1995) 79 A Crim R 528 Fleming v The Queen (1998) 197 CLR 250 GBB v R [2019] NSWCCA 296
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr DLW
Representation:	Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused
File Number(s):	2017/134016
Publication restriction:	Non Publication Order on the names of the complainant, any members of the complainant’s family, the accused, and any members of the accused’s family or any information that may identify any of them. Pseudonyms have been used for the names of the complainant, the complainant’s family and the accused.