R v Duffy

[2022] NSWDC 227

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Duffy [2022] NSWDC 227

Hearing dates:

25 May 2022 until 10 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [272] - In each of the 23 counts, the verdict is not guilty.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >10 <14 

CRIME — Child sex offences — Sexual intercourse with child >14 <16 

CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity

Legislation Cited:

Children (Criminal Proceedings) Act 1987 NSW

Crimes Act 1900 NSW

Criminal Procedure Act 1986 NSW

Evidence Act 1995 NSW

Cases Cited:

Fleming-v-R (1998) 197 CLR 250

Markuleski 52 NSWLR 82

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Regina (Crown)
WH (Accused)

Representation:

Dobraszczyk Counsel for the NSW Director of Public Prosecutions

Anderson Counsel for the Accused.

File Number(s):

2020/00336117

Publication restriction:

Unrestricted

Introduction

1. The accused, WH is charged by indictment with 23 counts of various sexual offending against PP, the complainant. The name of the complainant has been anonymised to abide with the provisions of section 578A of the Crimes Act and section 15A of the Children (Criminal Proceedings) Act. For the same reason the names of other people mentioned in these reasons have also been anonymised.
2. The charges are set out in the following table, with some very brief particulars provided to identify the nature of the relevant allegation.  The table also sets out the date range alleged for the different counts.

No	Sec	Charge	Date	Particulars
1	61M(2)	Indecent assault <16	27.6.14- 29.6.16 Maclean	Touched breasts
2	61M(2)	Indecent assault <16	27.6.14 - 29.6.16	Touched bottom
3	66EB(3	Expose indecent material to procure unlawful sexual activity <14	27.6.14 - 29.6.16	Porn video
4	61O(2)	Commit act of indecency towards child under 10	27.6.14 - 29.6.16	Masturbated
5	61M(2)	Indecent assault <16	27.6.14 - 29.6.16	Touched breasts
6	66B	Attempt SI <10	27.6.14 - 29.6.16	Attempted fellatio
7	61M(2)	Indecent assault <16	1.6.15- 31.7.18 Coutts Crossing	Touched vagina;
8	66C(2)	SI  with child 10 > <14 under auth	1.6.15- 31.7.18	Cunnilingus
9	66EB(3)	Exp ind mat to procure unlawful sex activ <14	27.6.14- 15.10.17 Maclean	Porn video
10	61O(1)	Commit act of indecency towards child under 16 under auth	27.6.14 - 15.10.17	Masturbated
11	61M(2)	Indecent assault<16	27.6.14 - 15.10.17	Touched vagina
12	66C(2)	SI <14 under auth	27.6.14 - 15.10.17	Cunnilingus
13	61M(2)	Ind assault <16	27.6.14 - 15.10.17	Touched vagina
14	66C(2)	SI <14 under auth	27.6.14 - 15.10.17	Cunnilingus
15	66D	Attempt SI <14	27.6.14 - 15.10.17	Attempted fellatio
16	61O(1)	Commit act of indecency towards child under 16 under auth	27.6.14 - 15.10.17	Naked shower
17	61M(2)	Ind assault <16	1.1.17 - 31.12.18	Touched vagina
18	61M(2)	Ind assault <16	1.1.17 - 31.12.18	Touched breasts
19	66C(2)	SI <14 under authority	1.1.17 - 31.12.18	Penile vaginal intercourse
20	61M(2)	Ind assault <16	1.11.18 - 31.12.18	Touched breasts
21	61M(2)	Ind ass <16	1.11.18 - 31.12.18	Licked breasts
22	61M(2)	Ind assault <16	1.11.18 - 31.12.18	Touched bottom
23	66C(1)	SI <14	1.11.18 - 31.12.18	Digital vaginal intercourse

3. There are 11 counts alleging a breach of s61M(2), the offence of aggravated indecent assault.  As each of these 11 charges is brought under section 61M(2), the circumstance of aggravation asserted in respect of each of these charges is that the complainant was under the age of 16.  There are other aggravated offences on the indictment where the circumstance of aggravation relied on is that the complainant was under the authority of the accused. Those charges are counts 8, 10, 12, 14, 16 and 19. 
4. In respect of each of the 23 charges, by reason of section 77 of the Crimes Act, at the relevant times, consent of the complainant is no defence if the complainant was under 16. The overall date range of the alleged offending is 27 June 2014 to 31 December 2018, and the complainant was born on 28 June 2006, so that the allegations all relate to a time the complainant was under 16. There is therefore no issue of consent in this case.
5. I note s133 of the Criminal Procedure Act (“CPA”) which requires that this judgment must include the principles of law applied by me and the findings of fact on which I rely, and also that I take into account any warning required by any Act or law to be given to a jury.
6. It is necessary to set out various directions below of which I remind myself.

General Directions

7. In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 (and s133 just mentioned) I remind myself of the following principles of law and set out the findings of fact on which I have relied.
8. I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.
9. The submissions of both the Crown Prosecutor and Counsel for the accused have been heard.  I will consider those submissions and give them such weight as I think they deserve.  I note that in no sense are those submissions evidence in the case.
10. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
11.  I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community.  I must, as a jury, act impartially, dispassionately and fearlessly.  I must not let sympathy or emotion sway my judgment.  I must not act capriciously or irrationally.  I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
12. It is for me to assess the various witnesses and decide whether they are reliable.  I note that the reliability of any witness’s evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy.  The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
13. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness.  I may if I think fit, accept part and reject part of that witness’s evidence.
14. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition).  I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
15. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence.  I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.  I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt.  Amongst other things, that means that I should be extremely careful about drawing any inference.  I should examine any possible inference to ensure that it is a justifiable inference.  I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
16. I note that the accused has a right to remain silent when spoken to by police.  The accused at the time of being arrested was asked to take part in an interview with police, which he declined.  I note that all people in this country have a right to silence — that is, to choose not to answer questions put to them by the police.  There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident.  But those exceptions do not apply here.
17. In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that.  It is important, therefore, that I bear in mind the accused’s silence cannot be used against him in any way at all.
18. The accused in this matter did not give evidence.  I remind myself that he has, as we all do, a right to remain silent.  I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence. 
19. I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do.  In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offences charged or any one of them. 
20. I direct myself, as a matter of law, that the accused’s silence in court cannot be used against him.  His silence does not constitute an admission and no such inference can be drawn from that fact.  Nor must his silence be used by me to fill gaps in the Crown’s case or to make up for what I might regard as deficiencies or defects in the Crown’s case.  I must not speculate about what might have been said in evidence if the accused had given evidence.
21. This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown.  That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all.  It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt.  I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
22. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.
23. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them.  If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
24. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt.  The onus, which rests upon the Crown, is to prove the elements of the charge/s.

Sexual Assault Directions

25. I warn myself pursuant to s294 of the CPA that the absence of or delay in, complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint.
26. I warn myself pursuant to sections 306X and 306ZI of the Criminal Procedure Act that the giving of evidence in the form of a recording made by an investigating officer and by use of CCTV equipment by the complainant during the trial, that I am not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the evidence being given in that way. These procedures have been introduced to facilitate the taking of evidence and the accused is not to be prejudiced in any way by the use of such procedures.
27. In this case it is alleged by the accused that in respect of some counts on the indictment there are differences in different accounts of those charges given by the complainant. In such circumstances s293A permits me to warn the finder of fact, that is myself, that experience shows people may not remember the details of a sexual offence in the same way each time, that trauma may affect the way people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences, and that it is up to the trier of fact to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.
28. I note section 294AA, which prohibits the giving of a warning to a finder of fact as to complainants as a class are unreliable witnesses. The approach I must take is to consider the complainant’s evidence for what that evidence is, without heightening or tainting it because of the fact it is the evidence of the complainant.

Factual findings directions

Inferences

29. Sometimes in a criminal trial, the evidence relied upon by the Crown to prove its case beyond reasonable doubt is what is called “direct evidence”.  Direct evidence is a witness saying that he or she saw the accused do something or heard the accused say something, or it might be an admission by the accused that they did or said something.
30. Sometimes, however, proof of one or more of the elements of a particular offence and thereby proof of the guilt of an accused person relies upon the drawing of inferences from direct evidence of proven facts.
31. I may draw inferences from the direct evidence.  There is nothing extraordinary about that.  We all do it, consciously or otherwise, in our everyday lives.
32. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.  In a criminal trial, because of the onus of proof being on the Crown to prove the accused’s guilt beyond reasonable doubt, I need to be very careful about drawing inferences from the facts that I find proven.  I must carefully examine any inference or conclusion I may draw and see whether it is a valid conclusion to draw from the evidence, whether it is justifiable on the evidence or whether there may be another explanation that is available which would prevent me from reaching that conclusion beyond reasonable doubt.  Speculation or suspicion, even grave suspicion can play no part at all in my deliberations.
33. I am obliged to act only upon the evidence that is before me in the trial and nothing else.  That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence.  I must not engage in speculation as to what that absent evidence might have established, if anything.

Markuleski / multiple counts

34. There are 23 charges on the indictment, and one complainant.
35. If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.
36. If I find that the complainant’s evidence in relation to one or more of the counts lacks cogency or reliability, such that I am not satisfied beyond a reasonable doubt as to that count being made out, then before I could be satisfied as to another of the counts, there would need to be something about the evidence concerning those other counts that makes it different to the earlier count of which I am not satisfied.

Reliability

37. In considering the complainant’s evidence, I must examine carefully her evidence and determine whether or not the complainant is a reliable witness.  That is that the complainant is an honest witness and a witness who is accurate in vital respects.  I must examine and evaluate the complainant’s evidence in light of any criticisms that have been made of it.  It is only after such evaluation that if I am satisfied, beyond reasonable doubt, that that evidence is reliable, that I could consider verdicts of guilty.  This direction follows from the onus and high standard of proof that is placed upon the Crown.  I could not find the accused guilty of the offences unless I am satisfied, beyond reasonable doubt, that the complainant is an honest and reliable witness.
38. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.
39. If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

Complaint evidence

40. Complaint evidence refers to what the complainant told others of the allegation.  In this case, the evidence of this type that the Crown relies upon is:
    1. The evidence of LM;
    2. The evidence of TN;
    3. The letters written by the complainant, being exhibits C, D and E.
41. This complaint evidence is set out later in these reasons.

Complaint Direction

Going to the truth of the facts asserted

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

Going to credit

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

45. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate.  A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).

Tendency evidence

49. Part of the Crown case is that the accused has 2 tendencies.  The alleged tendencies are to have a particular state of mind, namely to be sexually attracted to the complainant and secondly to to act on that attraction by engaging in sexual acts with her. 
50. The purpose of the following directions is to direct a fact finder as to what that means, and what the Crown needs to prove to establish a tendency, and if it is established, what use the fact finder can make of it in its reasoning when determining whether or not the Crown has met the high onus it bears of beyond reasonable doubt in respect of any and each of the charges.
51. The Crown says I would be satisfied the accused had these tendencies because of his conduct as alleged in each of the alleged offences on the indictment.  The Crown relies on the tendencies it says are established by all of the evidence in support of making out all of the charges.  So, for example  the Crown says in respect of count 1, it relies on the evidence concerning counts 2 to 23, to establish the relevant tendencies on which it relies in support of its case for count 1.
52. I will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges.  In doing so, I do not consider each of the acts in isolation. I should consider all the evidence and decide what conduct I am satisfied occurred.
53. If I decide that all, or at least some, of the conduct occurred, I then need to consider whether it enables the inference to be drawn that the accused had one or more of the tendencies stated above.
54. I recall the direction I gave about the care that needs to be applied to the drawing of inferences. I directed myself to consider whether there might be alternative explanations for the evidence. I directed that I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I should bear in mind those directions when considering this part of the evidence.
55. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances, I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown’s case.
56. If I find the accused did have the tendencies, or one or more of them as stated above, then I can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential I consider in relation to each charge whether the accused acted in that particular way and or had that particular state of mind on that specific occasion.
57. Finding the accused did have the tendency or tendencies the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way any of the alleged tendencies of the accused may be used.
58. Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will also include such of the tendencies alleged by the Crown, that I am satisfied has / have been established.  The Crown also relies on what is called complaint evidence, addressed above. 
59. Tendency evidence cannot be used other than in the way just described.  In particular, I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.   Put simply, I cannot and must not reason that because I find one of the charges established, therefore the accused committed some or all of the other charges alleged.  That is not a permissible way of reasoning.
60. The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved.  I must be careful to avoid allowing any emotional response or prejudice to distract me from a calm and objective assessment of this issue.
61. The Crown says that if I am satisfied of the accused acting as alleged in respect of the other counts, then the tendencies it asserts are established.  If I agree that evidence does establish those tendencies, and I need not be satisfied beyond reasonable doubt about that, but I do need to be satisfied that it occurred, then I can take that tendency into account in determining the likelihood of the accused committing the charge I am considering.
62. The accused says that I would not be satisfied that conduct occurred, so that the tendency is not established by that evidence.
63. There is one aspect of this tendency direction that needs careful attention.  In order to convict the accused of any of the charges (eg count 1), I need to be satisfied beyond reasonable doubt of the evidence of the complainant of the actual offending conduct for that count.  At the same time, when considering a count other than count 1, in order to rely on the evidence of count 1, taken with the other evidence, to be tendency evidence that may assist in determining whether eg count 2 occurred, I do not need to be satisfied beyond reasonable doubt, but I do need to be satisfied that it occurred.  One reason for this lesser standard when considering whether the matter can go to establishing a tendency as opposed to proving the offending is that the evidence of tendency cannot by itself prove the charge against the accused.  That is for the simple reason that it is not the charge that is being considered by me at that time.
64. In practical terms what this means is that if I were satisfied as to the tendency evidence establishing the tendency, when I then come to consider that same material as a charge, I would then need to apply the higher standard of beyond reasonable doubt. 
65. It is convenient here to direct myself as to what I cannot use the tendency evidence for.  Tendency reasoning has only been placed before me for the purpose of seeking to establish the tendency asserted by the Crown against the accused and such reasoning must never be used in any other way.
66. It would therefore be completely wrong to allow tendency reasoning to support a process of reasoning that because the accused committed one or more acts of a sexual or indecent nature towards the complainant that he is in some way a person of bad character and for that reason he must have committed the other offences charged. I cannot punish the accused for other conduct attributed to him by finding him guilty of the other charges in the indictment. That is not the purpose of tendency reasoning and I must not reason in that way. I cannot use tendency reasoning in any way prejudicial to the accused unless I accept the Crown’s argument that the evidence does disclose the tendency alleged and that it does make it more likely that the accused committed the offences charged against him.
67. Furthermore, evidence relied upon for the purpose of establishing a tendency on the part of the accused and in turn to provide the foundation for tendency reasoning, must not be used to reason in an automatic way, namely that the existence of the asserted tendency must mean that the accused acted in accordance with that tendency on the occasions alleged on the indictment. It may mean that he did but that is not an automatic result.  For each count I need to calmly and objectively consider whether or not the accused in fact acted in accordance with that tendency by committing the particular acts alleged.
68. I should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the accused. I must only give it such weight I think it deserves in the context of the evidence before me.

Character

69. The accused has adduced evidence to establish that he is a person of good character.  That evidence came in cross examination of the officer in charge (“the OIC”), who agreed that the accused had no adverse matters known to the NSW police, which I take to mean he has no criminal record in NSW. That evidence has not been challenged by the Crown. Therefore I should accept the fact that the accused is a person of good character.
70. The law provides that the finder of fact, be it a jury or a judge alone, is entitled to take evidence of an accused’s good character into account in favour of him on the question of whether the Crown has proved the accused’s guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offence alleged. I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I do reason in that way is a matter for me.
71. None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused.  What weight I give to the fact that the accused is a person of good character is completely a matter for me, but I should take that fact into account in the way I have indicated.

Section 165

72. Neither party sought a direction pursuant to section 165 of the Evidence Act (EA) for a warning that for some identified reason the evidence may be unreliable.
73. The major plank of the case for the accused is that the evidence of the complainant is unreliable. The details of that argument and the elements relating to it are set out below.  Two particular complaints of the accused are that, on the accused’s argument, much of the complainant’s evidence in chief was obtained by way of leading questions.  Having considered the evidence my view is that a warning in this regard is appropriate.  I am conscious that the parties have not addressed on this issue and would add two points. Firstly a jury might of its own accord treat such evidence as if it had been warned given its very nature without anybody being the wiser that it has been so treated.  Secondly, the giving of the warning in a judge alone trial is not ordinarily likely to alter the result, and in this case does not.  This is for the reason that it can be assumed in my view that a judge would be familiar with the nature and characteristics of a leading question and why evidence obtained that way may be less persuasive or reliable than evidence obtained in a non-leading way, and so would treat such evidence with caution, just as if a warning had been given.
74. I note the reference to s294AA CPA above. I remind myself that the fact that the evidence from the complainant of the alleged offending is uncorroborated by direct evidence of those alleged events (that is, putting aside the complaint evidence relied upon) is not of itself a reason to question the reliability of the complainant. In considering her reliability it will be necessary to consider the submissions of the accused.

Section 165A

75. I note also section 165A EA which prohibits the giving of a warning to a jury that children as a class are unreliable witnesses or their evidence is inherently less credible or reliable or requires more careful scrutiny than the evidence of adults.  Nor can a warning be given about the unreliability of a particular child’s evidence solely on account of the age of the child nor can a general warning be given to the fact finder of the danger of convicting on the uncorroborated evidence of a witness who is a child.
76. Section 165A(2) then provides that subsection (1) does not prevent the judge informing the jury (or him/herself) that the evidence of the particular child may be unreliable and the reasons why it may be unreliable and warning or informing the fact finder of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it if the party seeking such directions has satisfied the court that there are circumstances other than solely the age of the child particular to the child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information.
77. There were no submissions as to the operation of section 165A and its applicability to this case. The point is somewhat moot in circumstances where the case of the accused in broad terms is that none of the alleged offending conduct occurred and that the evidence of the complainant, a child, for a range of reasons other than her age, is unreliable. Given the conclusions I ultimately reach it is very likely that some direction under section 165A(2) may well have been given had it been sought. The reality is that it is the very basis of such a warning that is considered in these reasons to determine the reliability of the complainant. In the circumstances I do not consider a warning under section 165A(2) is necessary.

The elements of the offences

Counts 1, 2, 5, 7, 11, 13, 17, 18, 20, 21, 22 all allege indecent assault in contravention of section 61M(2).

78. In relation to these counts the Crown has to prove beyond reasonable doubt that:

(1)     in the period stated on the indictment, at the location stated in the indictment in the State of New South Wales, the accused did assault the complainant, and

(2)     at the time of, or immediately before or after, the assault, committed an act of indecency on or in the presence of the complainant; and

(3)     the complainant was under the age of 16 years.

79. “Assault”: an assault is the deliberate and unlawful touching of another person.  In this case the allegation is that the assault and the act of indecency are the same act.
80. “Act of Indecency”: an act which right-minded persons would consider to be contrary to community standards of decency.

Counts 3 and 9 are brought under s66EB(3).

81. In relation to counts 3 and 9, which allege exposing the complainant to indecent material (pornography) to procure sexual activity, the Crown has to prove beyond reasonable doubt that:

(1)     in the period stated on the indictment, at the location stated in the indictment in the State of New South Wales,

(2)     the accused was over the age of 18;

(3)     the accused intentionally exposed the complainant to indecent material;

(4)     with the intention of making it easier to procure the complainant for unlawful sexual activity; and

(5)     the complainant was under the age of 14.

82. “intention”: a person intends an event if they decide to bring it about by their act or omission.  A person also intends an event if they foresee that event as the inevitable consequence of their act or omission, even if that was not the purpose of their act.
83. “Procure” means to encourage, entice, recruit, or induce, whether by threats, promises or otherwise.
84. “Unlawful sexual activity” includes sexual assault and indecent assault.

Count 4 is a charge under s61O(2) of committing an aggravated act of indecency with or towards a person under 10

85. In order to establish these offences, the prosecution is required to prove beyond reasonable (remembering that consent is not a defence due to s77) doubt that:

(1)     The accused committed an act of indecency on or towards the complainant, or incited another person to do so; and

(2)     The complainant was under the age of 10 (which for this charge is the aggravating circumstance).

86. “Indecency”: has the same meaning as set out above in respect of the indecent assault counts.

Count 6 is brought under s66B and alleges attempted sexual intercourse with a person under 10 .

87. To establish the offence, the prosecution must prove beyond reasonable doubt that:

(1)     The Accused attempted to have sexual intercourse with a child under the age of 10, and that;

(2)     The Accused knew or was reckless as to whether the child was under 10, or had no reasonable grounds to believe the child was over 10.

88. ‘Sexual intercourse’ is defined as:

(1)     The penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person, or

(2)     The introduction of a penis into the mouth of another person, or

(3)     Cunnilingus, or

(4)     The continuation of any of these activities.

89. In relation to “attempt”, in order to prove that the accused is guilty of an attempt to commit the offence of sexual intercourse, first, the Crown must prove beyond reasonable doubt that the accused intended to commit the crime which the Crown alleges he attempted to commit.  In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which make those acts criminal. For this charge the physical element of the attempted sexual intercourse is the attempted introduction of the accused’s penis into the mouth of the complainant, which, apart from count 15, is part of the definition of sexual intercourse not relevant to the other charges of sexual intercourse referred to below.
90. Next, the Crown must prove beyond reasonable doubt that the accused did some act toward committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime. This may sound complicated but I must understand that the law does not generally punish a criminal intention without any accompanying physical act: it is not an offence to form the idea that you would like to rob a bank.  Nor does the law punish acts by a person that are done merely in preparation to committing a crime.  For example, it is not an attempt to commit a robbery merely if a person purchases a balaclava thinking that it might be used to rob a bank sometime in the future.
91. So, if I am satisfied beyond reasonable doubt that the accused intended to commit the crime alleged, the accused is not guilty of the crime of attempt unless the accused has with that intention committed an act that is more than mere preparation to commit the crime. The accused must have actually embarked upon the commission of the crime that the accused intends to commit. If I find beyond reasonable doubt that the accused had the required intention and committed acts with that intention in mind, I must then determine whether the acts that I find the accused committed were merely preparatory acts toward committing the crime.  If I form the view that they are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt.
92. The Bench Book gives the following example to illustrate what is required to make out a charge of “attempt”.  Assume that a young man gets into his motor vehicle with a bag containing a balaclava and replica pistol and has a map showing how to get to a particular hotel. If on the way he is stopped by a police officer for some traffic infringement and these items are found, a fact finder might well find that, although he intended to rob the hotel, his acts are merely in preparation for that offence. He might have committed some offence but not the offence of attempting to rob the hotel. On the other hand, if he arrives near the hotel, leaves his vehicle wearing the balaclava and carrying the pistol but is confronted by a police officer as he opens the hotel door, a jury might find that he has gone further than merely acting in preparation to commit the offence but has embarked upon it only to be frustrated by the presence of the police officer. In that situation, the fact finder might find that he has committed the offence of attempted robbery. It is a matter for me to assess the facts and determine whether beyond reasonable doubt the accused has proceeded so far in carrying out his intentions as to amount to an attempt to commit the crime intended.

Counts 8, 12, 14, 19 are brought under s66C(2) and allege aggravated sexual intercourse with a person under the age of 14.

93. In relation to counts 8, 12, 14 and 19 the Crown has to prove beyond reasonable doubt that in the period or dates alleged on the indictment at the place alleged the accused:

(1)     had sexual intercourse with the complainant; and

(2)     the complainant at that time was a child under the age of 14 years; and

(3)     at the time of the alleged conduct the complainant was under the supervision of the accused (being the circumstance of aggravation).

94. For the accused to be found guilty of counts 8, 12, 14 and 19, the Crown must prove the above 3 elements beyond reasonable doubt.  I remind myself of the following matters.
95. “Sexual intercourse”:  Relevantly to this case, sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person.  In respect of counts 8, 12 and 14 the alleged act is performing cunnilingus, and in respect of count 19 it is penile / vaginal intercourse.
96. A child under the age of 14.  There is no issue in this case on this element.
97. Statutory Alternative charge to counts 8, 12, 14 and 19 The alternative count is of a breach of s66D.  If I am not satisfied beyond reasonable doubt as to the issue of sexual intercourse, but am satisfied beyond reasonable doubt that the accused attempted to so act, then the accused is guilty of this charge.  I note the attempt directions set out above.

Counts 10 and 16 are charges under s61O(1) of committing an aggravated act of indecency with or towards a person under 16

98. In order to establish these offences, the prosecution is required to prove beyond reasonable (remembering that consent is not a defence due to s77) doubt that:

(1)     The accused committed an act of indecency on or towards the complainant, or incited another person to do so; and

(2)     The complainant was under the age of 16; and

(3)     The complainant was under the authority of the accused.

Count 15 is a charge under s66D of attempt sexual intercourse with a person under 14

99. The directions for this charge are the same as for count 6, save that the age requirement is under 14, rather than under 10.

Count 23 is brought under s66C(1) and alleges sexual intercourse with a person under the age of 14. 

100. The same directions apply as for counts 8, 12, 14 and 19, save that there is no alleged circumstance of aggravation.  The alleged act of sexual intercourse founding count 23 is digital penetration of the complainant’s vagina.

The particulars and evidence of the charges

Generally

101. As in many cases where allegations of the type made here are made the only direct evidence of the actual alleged event in question comes from the complainant.  I note this is the case here, even though JP was allegedly present on the occasion it is alleged counts 20 to 23 occurred.
102. I am very conscious of the directions made above in relation to sexual assault allegations and in particular that such lack of corroboration does not of itself form a basis to doubt what is being stated by a complainant.  I am also conscious of the provisions of section 165A as discussed above.  I have considered the evidence of the complainant very carefully as I hope is reflected in what follows.
103. The Crown also relied upon complaint evidence and evidence it said established a tendency on the part of the accused, firstly to be sexually attracted to the complainant and secondly to act on that attraction by engaging in sexual acts with her.  I address the complaint evidence below.  The tendency evidence relied upon for any particular charge is the evidence led in connection with the other charges, so my views and findings as to the tendency evidence will be apparent from the following consideration firstly of the evidence in chief of the 23 charges, and then of the challenges made to that evidence by the accused.

The evidence of the complainant

104. The Crown’s opening and closing addresses were very similar, which may have been expected given this is a case where the evidence in chief was largely given by recorded interviews. The Crown in its opening was referring to the evidence it knew would be played by way of the recorded interviews. In closing the Crown took the court helpfully to those parts of that material which the Crown relies upon to support each of the 23 counts. The Crown then sought to counter the anticipated criticisms of the evidence of the complainant. Curiously given my reference to section 165A above reference was made in the submissions by the Crown to the fact of the complainant being a young person; that is whilst a young person cannot be considered to be unreliable and therefore to be given more careful scrutiny by virtue solely of being a child, the Crown says that because the complainant is a child any inconsistencies should be more readily overlooked. There is a disconnect in the logic of that submission yet at the same time I accept that there should be some allowance to the complainant for the fact that she was giving evidence in a criminal trial, albeit from a remote witness room, and like any person unfamiliar with that process may have been, and in my view to some extent was, somewhat daunted by that process.
105. The Crown provided a Crown case statement dated 12 May 2022 in response to the Court’s request for a document giving the reference to the complainant’s evidence in chief said to make out the various charges. That document was taken as an aide memoire or a form of submission without objection. The document from page 6 provides the assistance the Court sought and it is gratefully received.
106. The Crown case is that the 23 counts of offending occurred most likely over 7 or possibly 6 different occasions.  In order of their alleged occurrence counts 1 and 2 were referred to as the “itchy blanket incident” and occurred at the home of the accused. Counts 3, 4, 5 and 6 are referred to as the “first porn incident”, again at the home of the accused.  Counts 7 and 8 are said to have occurred whilst the accused was carrying out his job on a post run. Counts 9 through to 15 are also said to be on one occasion,again in the home of the accused.  Count 16, also alleged to be in the accused’s home, was said by the Crown to be a separate occasion, though the accused submitted it should be viewed as allegedly occurring at the time of counts 9-15.  Counts 17, 18 and 19 are again said to occur in the accused’s home.  Finally counts 20 to 23 inclusive are said to have occurred whilst the complainant’s mother, AG and younger brothers, JP and AL, were in the accused’s house in late 2018 and is referred to as the “last incident”.   This last incident is said to have occurred at the accused’s residence at Salen Street Maclean, whereas the earlier counts alleged to have occurred at his home were at a different residence at Riverwood Terrace Maclean, though the Crown argues the date range on the indictment means counts 20-23 may have occurred in either residence.  On the agreed facts as to where the accused lived, that is true, but it should be noted that is a submission that accommodates the variable evidence of the complainant as to whether those alleged offences occurred at the “first” or “second” house.
107. This means there is alleged to be 6 separate occasions of offending occurring in a residence of the accused, or 5 on the accused suggestion that count 16 should be interpreted as being alleged to have occurred at the time of counts 9-15.  In evidence was exhibit I which was a record of the Queensland police said to be based on what the police had been told by the complainant. This included at page 8 of that document the following note: “the victim child stated that she had been offended against multiple other times by the same suspect (usually every few weekends) but she cannot recall any further specific times in detail”. The indictment range is from 27 June 2014 to 31 December 2018, a period of 4 ½ years.  Based on exhibit I and interpreting “few” as “three”, this would mean there were in excess of 50 occasions on which the complainant had been at the offender’s residence and been offended against.  If “few” is interpreted to mean 6, it would mean more than 25 occasions of offending.  Yet this asserted number of occasions of offending, be it 25 or 50, is significantly different from what emerged from a total of 4 interviews of the complainant; (1).  
108. Before referring to the evidence of the case in chief, I note that the Crown case is drawn from four different interviews. The first record of interview on 14 April 2020 purportedly reveals only 10 counts, with a further 13 counts emerging in the second and third interviews of 11 August 2020 and 1 February 2022.  One complaint of the accused was that the additional material was drawn out in a leading fashion, with the result that the evidence should not be accepted.  As a blanket statement I do not accept that but there are certainly examples in each of the interviews 2, 3, and 4 where that can be clearly seen.  Examples of this are given below.

The letters

109. Before referring specifically to the 4 records of interview of the complainant reference should be made to exhibits C, D and E.  Those documents are relied upon as complaint evidence and it is not disputed, predate the first attendance on police which was 1 January 2020.  What is a matter of controversy is exactly when and where they were created.  The Crown case is that preceding any of the notes in evidence was the so called “KFC” note, written on some kind of KFC wrapping or packaging, and which none of the complainant, AG or the police had looked for, despite AG saying it may have been in storage with her things following the move to Loganlea at the end of 2018.  That in itself is remarkable, that such a key piece of complaint evidence can be sitting somewhere for more than 3 years without those who assert its existence looking for it actively enough to enable it to be said whether or not it is in storage, and more than 2 years since police became involved.  It is a further concern that the only evidence of what it says was given by AG from memory, in terms that mirrored to an alarming degree what is said in exhibit D, and where AG stated she did not read all of the note.  AG’s evidence of what the note said was:

Q.  Can you remember the words on it?

A.  Yeah, she said, "Sorry mum, I know you thought somebody had done something.  It wasn't Darren, it was Warren.  He touched me and I'm sorry I didn't tell you before but he told me not to say anything because he didn't want to go to gaol."

110. Exhibit D is headed “To mum” and is in the following terms:

Mum I am so sorry that I didn’t tell you this sooner but I was scard and I was only about 9 when he started but the last time he did it to me I was 12 and six months and it was scary but yes you did get it right it was Warren and he would touch me evrytime I went to work with him and evrytime I stayed at his house and I was so dumb that I didn’t tell you I am so so sorry mum and the resson that I didn’t tell you sonner was because he told me not to otherwise he would be in a lot of trouble and you would have got angry with him and he would have went to jail.

111. This comparison and the underlined words shows that apart from the reference to Darren the evidence of AG as to what is in the KFC note can be found entirely in exhibit D.
112. I consider the failure to look with any sense of urgency or thoroughness for such a piece of evidence by AG to be a strong indicator that it does not exist, which casts a strong pall over her evidence, and that of the complainant; (2).  Further whilst it can plainly be the case that there will be similar things said in the purported KFC note and a later note my concerns are heightened by the similarity of the reported KFC note and exhibit D as demonstrated above, as it suggests to me that AG is adopting the words of exhibit D to enhance the likelihood of a finding of the KFC note existing; (3).
113. Exhibit C is written on what is self-evidently a diary page which was not disputed as being a page from the diary of the complainant from her school St Andrews which she attended when in Grafton in 2018. Exhibit C in its top right corner bears a box of the dates of July 2018; common knowledge might suggest that some diaries bear the corresponding month of the year before or after the actual year in this fashion, but the way the trial was conducted assumed that this was a reference to the actual year of the diary, something supported by the fact that the reverse or back of the front page of exhibit C shows the 30th of the month to be a Monday consistent with what is on the front right corner of exhibit C.  Exhibit C was tendered by the Crown in support of counts 20-23. It depicts JP and the complainant on a bed and then a stick figure beyond the right hand side of the bed with what could be its hands extending to the breast and genital area of the complainant and what appears to be the tongue extending to the complainant’s breasts. That the stick figure is representing the accused is made clear by the words underneath the picture, which are “Warren was touching my breast and liking (sic) my breast and he put his index finger in my vagina and I was unconfortable”.  On the back of that page are the words “To mum truth”.
114. On the Crown case offences 20-23 occurred in late 2018.  It may be that the words on the July 2018 page of the diary were written well after July 2018.  The matter is further complicated by the fact that other evidence may suggest it was written about six months before the family left Grafton, so about July 2018, and other evidence may suggest it was written in mid 2019.  On the former possibility the problem is it is therefore written before the matter it purports to complain about actually occurred, and on the latter possibility raises queries as to why, when now at a new school, and in a new year, the complainant is using the previous years diary of the old school.  That latter possibility is more easily explained than the former.  That there are such various possibilities, and that they each have issues in themselves, also causes reliability concerns; (4).

Counts 1 and 2

115. The date range of the indictment for these counts is between 27 June 2014 and 29 June 2016.  The complainant was born on 28 June 2006 so this is alleging that the offending occurred when she was aged in effect 8 or 9.
116. The evidence was that AG and the accused first met in 2012, and that AG’s relationship with DL (with whom AG had a son, AL, born on 7 December 2012) began in 2011; T260-261.  The evidence discloses no interaction between the accused and the complainant or her 2 brothers prior to the range of dates on the indictment.  Possibly this supports what could otherwise be doubted about the relationship of AG and the accused being somewhat secretive.
117. In the first interview, the complainant is asked why she has come to the police to talk and says “my mum’s best friend sexually assaulted me”. She is then asked to tell everything about that and “just start at the beginning”.  The complainant then talks of a post office person and that she would go on his runs and he’d want me to go to his house. She said she went to his house the first couple of times and wanted to go more to play the PlayStation.  She then says that one night he just “tried to like touch me and stuff” and “tried to have sex with me and but I was only like 9 or 10”.  She says she pushed him away and then didn’t go as much and then just stopped going altogether.  She then names the accused.  She said her mother described him as her soulmate.  She said that when she found out what happened the mother had not talked to him (I infer meaning the accused) since.   Pausing there AG’s evidence did not match this.  AG said that when she learnt of the allegations she stopped the children staying at the accused’s house, and did not say she had stopped talking to him.  The mother dated the cessation of the children staying at the accused’s house by reference to a trip by the accused to Thailand which she had said in her statement to police was in 2018.  In cross examination AG accepted that trip was in 2015.  In her statement AG said it was after this trip that she did not let the kids stay at his house.  Additionally the mother told the police that the accused had sex with lady boys when he was in Thailand.   Unpicking this:
     1. The response of AG to learning of allegations of the complainant about the accused differs between AG and the complainant; (5);
     2. The timing of AG learning of the allegations, and on her version, the timing of the children no longer staying at the accused’s house varies between 2015 and 2018; (6);
     3. The dating of the Thailand trip by reference to ladyboys is an example of AG’s evidence being inaccurate;
     4. AG has made gratuitous reference to the sex activity of the accused to police, which has no relevance to the investigation; (7), a matter which is further referred to below.
118. The complainant then says in the first interview that she told her mother when they first moved up here. That is a reference to moving to Queensland at the end of 2018. That would mean that the KFC letter was given to the mother when they were in Queensland.  At T271 AG says she was given the KFC note in December 2018.
119. At A43 the complainant refers to a night that she said he (the accused) tried to touch her and referred to having an itchy blanket. She says he suggested she share a blanket with him and that he kept getting closer to her and put his arms around her and started touching her.  She says that she then went to the lounge room and he followed her and that she slept in his son’s bed because the son used to sleep over and visit him.  Pausing there I infer that on this version the son was not there on this occasion whereas other evidence suggests that the times that she stayed over were mostly occasions when the son was present.  If the number of times she stayed over at the accused’s is 4 or 3 as other evidence suggests but the offending only occurs when she is alone then this suggests that the son was present for some of those, say, four times reducing further the opportunity for the offending to occur.  At T348.50 AG gave evidence the effect of which was that the complainant had stayed with the accused by herself without her brothers maybe three times, and this was to give her a chance to play with the accused’s son by herself.  In other words AG’s evidence is of no occasions of when the accused was alone with the complainant; (8).
120. The Crown refers to the first two counts as the itchy blanket incident. The complainant at A45 says that the accused moved closer and she went to sleep and woke up and was on his bed and “I don’t know what happened that night but”; in other words beyond the general reference to him putting his arms around her and touching her there is no better evidence in this first interview of counts 1 and 2; (9).  The Crown allegation is that there was touching of the breasts and touching of the bottom and there is no evidence in this interview of that occurring.  There were some further questions asked about this particular night and she was asked who was there and said just me and him and went on to say and then every now and then my brother would come over but he (the accused) would do nothing when my brother was there.
121. It is unsatisfactorily unclear as to just how many times the complainant attended the house of the accused and on the occasions that she attended, how many times her brother or brothers went with her and on how many occasions was the accused’s son there.  If a working number of four is meant to be a total then the prospects of all of the allegations occurring, apart from the mail run counts becomes improbable; (10).  The complainant said that on this occasion her brother did not come with her and it was just her and the accused in the house which she described in a way that identifies Riverwood Terrace.

115. Relevant to the timing or dating of the letters at A64 the complainant says she wrote a letter she thinks half a year after when it all finished. She says she was pretty sure she “wrote one later on it”. It is unclear what that means but accepting the first statement she is saying that the KFC letter, which I infer is the first letter, was written in 2019 as the last occasion being alleged is December 2018.  This is inconsistent with the evidence concerning the KFC note.  Further if it was written at that time it would not so likely be in storage, as the reference to storage is connected to the move of possessions to Queensland from Grafton. The whole premise of the document being in storage is that it was created before the move in late 2018. But that also creates a greater likelihood of it being before the so-called last time of December 2018 and counts 20-23.  Further damaging the complaint evidence case, when asked at Q408 what she had written and what she remembered that she had written she said “probably everything that I told you” which on the Crown case is only 8 of the 23 counts now being alleged if it accepted that the first interview discloses no basis for counts 20 and 21. The evidence is quite strong that the complainant is saying that exhibit D was given to her mother halfway through 2018; see A415 in addition to the above references.  She then adds that she did make a letter while she was “up here” meaning Queensland.  At A409 she is clear that she did write letters before the last time. She then says at A420 that she gave them to her mother in Grafton and then the last one she is pretty sure she made up in the unit in Loganlea in Queensland. Unravelling this it seems that what is being said is that the KFC note, if it existed, and exhibits C and D but not exhibit E were written and given to the mother in Grafton. This poses some problems because if this bundle of letters given in Grafton includes exhibit C then it is not very likely that exhibit C is referring to the last time in that note. That then is further confused by the following questions and answers commencing at Q421 where she says she drew a picture on one of them which was a letter of the last one which contrary to the above suggests exhibit C was created in Queensland.  She could not remember whether the first lot of letters or the second had the picture which can be seen on exhibit C unless of course there is some other unlocated letter though that was not suggested.
116. Trying to interpret this as favourably as possible to the complainant it would seem that the alleged KFC note and exhibit D were given to AG in Grafton. It is more likely that the letters were given prior to December 2018 particularly given the complainant’s own reference to 6 months before the “last time”.  Exhibit C and exhibit D would appear to have been given to AG in Queensland when the complainant was 13; A432 so no earlier than 28 June 2019; (11).
117. Even on this favourable interpretation of conflicting evidence it means that once the mother knew of the complainant’s allegations as the Crown asserts, she was still prepared to stay at the house of the accused with the children and also sleep with him. There is no dispute that on the so-called last occasion the Crown case is that she slept in his bed. Whilst it is not inconceivable that could occur once knowing of the abuse allegations, it does in common experience appear somewhat unlikely. The fact that the mother did not read all of these letters, on her account because she felt unable to do so, does not rule out that, and I find she had read enough to be disturbed because she knew the contents referred to sexual activity between the complainant her daughter and the accused. It is also consistent with her own assertion that once she found out she did not let the children go to the accused place on his own.  On another view, that AG was prepared to stay with the accused in December 2018 was because she had no basis for any concern about doing so; (12).
118. Also in this first interview the complainant said that she had told one person and not two. She said she had told LM.  She did not say that she had told TN, who was called to give complaint evidence.
119. At Q470 the complainant is asked whether there is anything else she wants to tell the police of any other times that she best remembers and answered “I don’t know. I don’t remember”.
120. Also in the first interview at A72 the complainant says that the first time she went there the accused’s son was there.  At A77 in reference to this first time she says she went with him that morning to do the post office run and was invited back as the son was visiting. It is not alleged that any offending behaviour occurred on this occasion. Curiously though it talks of doing the post office run in the morning (see A77) and then refers to after doing the run going back to his place to play with the accused’s son. It is then said to be about 5.30 or 6 o’clock; A115.  On one view it has taken as much as 12 hours to complete a mail run of about 280 km at its maximum which appears pretty unlikely though possibly they had been playing for a significant time before lying in bed.
121. At A125 is a further attempt to describe “the itchy blanket incident”.  The complainant starts by saying she cannot remember.  She says her blanket was itchy, so the accused let her “go under his blanket”, and she described the accused getting close to her, so ultimately she returns to the bed of the accused’s son.  When pressed as to what happened, the complainant says at A131 that she just fell asleep in the accused’s son’s bed, and when she woke up was in the accused’s bed. In other words she is making allegations about things she cannot remember and on her version of events, despite not being able to remember them, occurred when she was unconscious; (13).
122. The complainant placed this occasion about eight weeks after her birthday after having turned 8 which would mean it was 2014 in approximately August and therefore within the indictment range.  She put the occasion of counts 3-6 as being 2 weekends after the itchy blanket time.  She also said at A240 that she used to go over there “like every weekend”.
123. The second interview with police was carried out by the OIC, who is from the New South Wales police force, the first interview having been carried out by Queensland police. The second interview occurred on 11 August 2020. The Crown does not rely on any part of that interview to support counts 1 or 2.
124. It is the third interview, again conducted by the OIC, which occurred on 1 February 2022 that is relied on to support these counts.
125. There had been an objection taken to the whole of his interview on the basis that the questions in them were leading so as to invalidate the answers given.  That objection was rejected, though that is not to say the evidence obtained in that fashion is to be accepted.
126. The methodology of the interview was for reference to be made to the first interview and to repeat to the complainant what the question and answer had been and then seek further detail about that subject matter.  I infer that the officer was well aware that there was no evidence to support counts 1 and 2. The concluding part of question 51 is “so just in relation to that those couple of questions and your answer you said he touched me. Can you tell me where he touched you or what happened”.
127. The answer given was “he touched me on my boob and he tried finger me but I moved away”.  The complainant then said “and then he tried to touch my arse”. Those answers give a basis for count 1 but not count 2.  Count 1 was confirmed by Q63 albeit in a totally leading fashion. The inference I draw from questions 66 and 67 is that the touching was above the clothing.  The complainant repeated her assertion that the accused “tried to finger” her at A67.  When that was followed up at Q75 she said that “he tried to put his hands down there” and then said “and then he was moving over towards my vagina and then he started to try and take my undies off and then that’s when I walked out”.  She then demonstrated his hand on her hip and said it went down meaning his hand towards her thighs and finally at A80 she says for the first time “and then he was like touching my arse and then yeah and then he went towards like the front bit but like through my legs at the back”.  This is the first evidence of count 2 and as can be seen needed to be rather tortuously extracted; (14).  I note also the description of his hand between her legs is strikingly similar to the allegation concerning count 23; (15).  The complainant continued at A83 and A84 that he was going through her legs from the back and he got close “to my vagina hole and then I pushed him away and I left”.
128. It does add some integrity to the answers given in the interview that the questions that then followed were prompting an answer that the accused actually touched the complainant’s vagina and her answer was “not quite. Like he almost did” and “but not quite” and I take this into account favourable to the Crown case.  The same comment applies to the more egregious leading question at Q91 again suggesting touching the vagina but a suggestion which was not accepted by the complainant. This touching however plainly supports count 2 though there is about this evidence a concerning repetition of the word “try” and “tried”; (16).

Counts 3, 4, 5 and 6

136. This occasion is referred to by the Crown as the “first porn incident”. One investigation step the police did take was to do an “iask” search which is a search to determine whether there was any Internet connection to the relevant property.  That search is exhibit V.  Of the nine Internet providers covered by that search none of them provided an Internet connection to the property where this is alleged to have happened.
137. The first interview of 14 April 2020 identified the occasion alleged to be when counts 3, 4, 5 and 6 occurred.
138. At A133 the complainant said the next time she went to his house he got her to watch porn; count 3. This would appear to be the second time that she had been there without anyone else present and the third time overall. She said that he made her watch him ejaculate which would be count 4.  He then touched her breasts which is count 5, she then fell asleep.  The accused dropped her home the next day.  On that version there is no mention of count 6 which is particularised as attempted fellatio. When asked to describe porn and what she saw an appropriate description is given of people being naked having sex and with their dick going in the girl’s vagina; A154. She said the porn was off his laptop on his TV.  On a second asking she then says that after the porn being on TV the accused started playing with himself and tried to touch her tits again; A166.  She could not remember what he was wearing.  She described what she said was wanking and said she did not think the accused had any clothes on at that time (having just said she could not remember).  She was asked to draw the lounge which became exhibit A. That diagram, as put by the accused counsel, does bear a closer resemblance to the interview room than it does to the lounge of the accused as evidenced by Exhibit 4.  A point of the accused was that the diagram more accurately reflected where the complainant presently was because she was fabricating the allegations.  I do not consider that fanciful; (17).  The complainant says that whilst he was wanking he started to touch her tits, which is count 5.  She said he was squeezing her tits. He was still wanking. There is to this point no mention of count 6, the attempted fellatio and at A213 she says when asked then what happened “I can’t really remember”. However a few questions later she says he stood in front of her and that he wanted her to suck his dick but she said no.  She then said “so he stood in front of me and started coming in front of me”.
139. Significantly for count 6, particularly given the above directions about attempt, there is clear evidence that he stood in front of her and then at Q222 the question was “do you remember what words he used when you said he yeah” which I take to mean the asserted request to suck his dick and she said “not really”. Based on the aide memoire there is no other evidence the Crown relies upon to support this count. There is therefore no evidence of what words were spoken.
140. There was no submission as to whether this evidence is capable of making out this charge (and given my ultimate views it is moot), however in my view this evidence is insufficient to substantiate the attempt fellatio charge of count 6.  There is no evidence of what the accused said. The evidence is of him masturbating in front of the accused to the point of ejaculation which may amount to indecent assault / the charge of performing an indecent act towards another but does not equate to attempted sexual intercourse.  As to the need for there to be some act more than preparatory of the offence and some act taken towards the commission of the offence my view is that would be satisfied by the prior conduct of showing the pornography, if established and of the earlier sexual touching. The evidence however does not establish an intention on the part of the accused to have the complainant fellate him; (18).
141. When further asked about the time of him squeezing her breasts, count 5, she said he put his hands down her shirt and ultimately on her skin. Whilst no objection was taken to leading questions in this first interview it is notable that the ultimate assertion of the touching being underneath her crop top bra emerged from a leading question at Q254 which was “so he was touching underneath like of your skin”.
142. It follows that so far as the first interview is concerned there is evidence of counts 1, 2, 3, 4 and 5, at least up to question-and-answer 266 when reference is made to the last time which is the beginning of evidence relating to counts 20-23.  On one view this could be quite telling because after giving the evidence relied upon for counts 20-23 the complainant is asked some questions the effect of which is to identify what has been referred to as the last time, counts 20-23, what was referred to as the itchy blanket time, counts 1 and 2 of which there was no evidence from this first interview, and the porn time which gave evidence of counts 3, 4, and 5 but not evidence to substantiate count 6.  As noted below there was no evidence of counts 20 and 21 in this first interview.  In other words the number of offences identified in the first interview on the Crown view is 10 and on the findings I have made on that evidence, 5; (19).
143. That point having been reached, that is, in concluding an interview supporting only 5 of what was to become 23 charges, the question at Q380 having identified the itchy blanket time, the first porn incident and the last time was “tell me about another time you best remember” and the answer was “I don’t really remember that much”. The witness then offered “I don’t even remember what I had for breakfast this morning” which perhaps betrays an attitude similar to the way in which she gave her evidence in cross-examination at the trial, which is referred to below. She then said “I don’t know”.  Given that on AG’s evidence the complainant only went to the accused’s residence 3 times without her brothers, and when she apparently thought the accused’s son was there, one possible explanation for the lack of further complaints could be that there were no such other occasions or offending. 

Counts 7 and 8

144. This is referred to as the “mail run incident” as it allegedly occurred whilst doing the mail run. It is accepted by the Crown that there was no evidence of these counts in the first interview.
145. The Crown relies on the second interview to support these counts. That interview occurred on 11 August 2020. This interview, like the third interview, was subject to the overruled objection regarding leading questions.
146. In respect of count 7, which is a charge of indecent assault of touching the vagina, the complainant was told by the OIC that he did not want to talk about the “stuff” that the complainant had spoken to the Queensland police about but about other things that he had found out.  The OIC referred to a letter he was given and showed the complainant that letter which she said she remembered and said she wrote. This was exhibit C.  When asked if she remembered when she wrote it she said “I know I wrote some of it up here and some in Grafton” and then said that she had written the front page up here and the next page in Grafton.  I note that only exhibit C out of exhibits C, D and E has two pages, being a single sheet written on both sides.  At Q263 the question refers to the first page as having a picture drawn on it.  That is the one that the complainant says she wrote “up here”, meaning Queensland and so therefore no earlier than December 2018. None of this is leading. What does not make sense is how the complainant could have written something in Grafton and given it to her mother and then written on the same piece of paper on the other side later and given it to her mother. It can only be that she wrote the words “To mum truth” in Grafton and then on that diary or piece of paper wrote on her 2018 diary to write what is alleged to be words and a diagram about the last time. That frankly all sounds rather far fetched; (20).
147. It is then put to her at Q73 that the other three pages she wrote in Grafton and although no audible reply is recorded the following question suggests an affirmative answer. Query what the third page is as D and E are two pages in total though exhibit E could appear to be two pages as it is folded.
148. The evidence for these two charges emerges at Q115 with the officer reading parts of exhibit E where there is reference to the accused touching and licking the complainant. The complainant said she remembered the incident.  She was asked to state what she could about the accused licking her and said “I don’t remember when it was or anything” and “but I don’t know how to explain it”. She then with some further encouragement described being in the accused’s car going to work and making reference to Coutts Crossing and then at A123 “and he stopped the car and then he went around to my side and started playing with me and then he put his head down there and started licking it. And then he was waiting, watching to see if anyone was coming and then I got in the back”. This is therefore evidence for counts 7 and 8.
149. Also in the second interview she said that she did the mail run about four times and that was about it; A129 and 130. She then said she used to go every second week.  Question 134 is premised on her answer of going about four times and is not challenged by her. The evidence is therefore inconsistent.  But the more predominant answer is that it was about four times that she went with him on the mail run.  The evidence shows two of those occasions were in about mid 2014. So that she would have been about 8.  There are then numerous questions about what year she was in but nothing that really nails down the date.  Confusion arises at Q135 with the answer being that she thinks it was in primary school that it happened and then she was going to St Andrews which she only started when she was in high school, in year 7.  The questions are frankly confusing and then return to the incident in the car.  From A164 she describes the car pulling over, the accused walking around to the passenger seat and him then touching her on the vagina with his fingers under her clothing and that he then licked her down there on her vagina. At A174 she described the accused opening the front passenger door and telling her to hop in the back.   She said he was taking her pants off and she told him to stop.
150. I note the point of the accused that at at Q172 the touching of the vagina and the licking of the vagina can be seen to have occurred before she was in the back seat (something made even clearer by Q/A 164) yet by Q194 (and earlier, at Q174) those events are said to occur in the back and by Q196 the complainant gives a definite no to the idea of it happening while she was in the front. 

240. Another inconsistency pointed to was the fact that in the fourth interview the complainant gave evidence of what was said to be the only occasion of something sexual occurring between her and CP, namely her touching his penis after telling her mother he was trying to get her to do so.  That single event had the oddity of why would the complainant touch CP’s penis, having just successfully engaged her mother to stop it?  Putting that query aside, the mother then gave evidence of a different sexual event involving CP where he had tried to have sex with the complainant; this emerged from a further interview of AG on 25 May 2022.  In her interview with police on 23 May 2022 the complainant said this touching occasion was the only time anything happened between her and CP (the evidence in this regard commences at about T101).  She was then asked about the occasion of some other event referred to in the mother’s statement (who had not yet been cross examined).  The complainant agreed there was a second time.  The complainant said “Only because I just remembered that”, as she was sitting in the witness box. The complainant was unable to give much in the way of detail of this supposed event.  Although she said she had not spoken to her mother about it, based on my view of the conduct of AG and the complainant, I consider it obvious that they did discuss it; (43).
241. The accused made submissions seeking to clarify just how often the complainant actually went to the accused’s home. The accused’s counsel pointed to evidence that after what was possibly the second occasion she was at his home and he had “tried” to have sex with her that she went less often. There is other evidence that she went no more than three or four times, and I note at T265 the evidence of AG is that the complainant only went to the accused’s place by herself “only a couple of times”.  The complainant gives evidence of going a couple of times in the first month or so of going there the first time. If she first went there in 2014 it would seem possible on this evidence that it was not much later that she ceased to go there, which raises a query as to why there is such an extended date range on the indictment.  On the other hand the text messages passing between AG and the accused (exhibits 9-14) suggest a relationship between the accused and AG the children that extended well beyond 2014, and I note exhibit 25 bears a date of June 2016. The text messages show a great willingness of AG to rely on the accused to care for the children when needed and also suggest an affection of the complainant towards the accused.  Some of the texts are dated 2017. Curiously however whilst they suggest affection and familiarity they also suggest that the accused on the one hand and AG and the children on the other are somehow separated as the texts between AG and the accused include statements such as “I miss our chats your touch and you” and “hello time for our weekly chat” being texts from AG and the accused respectively (Exhibit 11).  Apart from this there was no exploration in the evidence at all on the Crown case of whether that meant there was periods of separateness.  It is very concerning that after so much evidence it cannot be sensibly discerned just how frequently the complainant was with the accused, let alone, alone with the accused.  I accept the Crown’s point in this regard that for the Crown to establish its case it need not be precise and in many cases you would not expect precision of events occurring over a period of years.  Yet the issue here is larger than that; it is just not a lack of precision but a lack of knowledge, or even a sound basis to allow for the broad range of the indictment.
242. On this point there was the “ladyboy” emails referred to by the accused.  The evidence of AG first suggested the time of the accused sleeping with a ladyboy or ladyboys was about 2018, and that it was after this the children went to his home less often if at all.  This allows obviously for the inference that the visits to the accused home continued up to that point. That was the way the Crown case was presented.  Yet the email evidence (exhibit 15) adopted by AG dates the occasion of the accused telling her of sleeping with ladyboys was in 2015.   This clearly contradicts this basis for the timeline.  The submission of the accused is that AG brought the occasion of the “ladyboys” to the attention of the police for the ulterior purpose to prejudice how the accused would be viewed.  That is, that it was a matter of irrelevance to this case introduced by AG in a deliberate effort to make the accused appear, unfairly, to be a person more likely to engage in sexual abnormality, including the abuse of a child.  Given the communications post dating 2015 referred to above, which include AG seeking the assistance of the accused to care for the children, and of course also the sleep over in December 2018, it is very clear AG had no concerns of the children being with the accused after 2015.  This, taken together with my other adverse findings concerning AG, result in me accepting that submission; (44).
243. One aspect of AG’s evidence which stood out as much as the lady boy evidence, concerned Dr Weerasena.  My impression overall of the manner and demeanour of AG in giving her evidence was that she appeared unsure, uncertain and unclear.  In stark contrast to that impression the one time she was very certain was when she was giving the evidence about what she said she had been told by the doctor concerning her daughter’s condition and it being likely due to sexual activity.  As noted above I accept the doctor’s version of that occasion and consider AG to be fabricating that part of her evidence. 
244. The accused made lengthy submissions arguing that the police investigation was inadequate.  The points made included the following:
     1. The failure to conduct any appropriate search, or any search at all, directly or through AG, for the KFC note.  The evidence concerning the creation of the KFC note, and the failure to look for it, and the sleep over at the accused’s in December 2018, results not only in my doubt that it exists at all, but to the point I consider it more likely to not exist than to exist. 
     2. In an effort to gain evidence to support the allegations of the watching of porn inquiries were made of nine Internet providers as recorded in exhibit V. That showed that there was no Internet service provided to the accused’s home which he leased at Riverwood Terrace Maclean. Whilst undoubtedly it is the case that there can be access to pornography other than by way of a Wi-Fi Internet connection, either through some other form of Internet connection, for example a hotspot of a phone, or even if it was on the hard drive of the computer, the fact is that there was no established Internet connection which is evidence against rather than in support of the Crown case, just as the failure to produce the KFC letter is a matter that is more against than in support of the Crown case.
     3. Nor was there any attempt by the investigators to seize the computers and other digital equipment of the accused.
     4. No attempt was made to obtain phone records. To be fair to the investigator there was no real suggestion of much telecommunication between the complainant and accused but I do note the assertion in the fourth interview of the complainant having been given a phone by the accused. The lack of phone records suggests that this had not been previously mentioned to the investigators by her. Whichever way this is viewed it does not aid the Crown case. That is the reference to a phone on the fourth interview was another dubious and likely fabrication by the complainant, or if there had been some earlier reference to it is another aspect lacking in the investigation.
     5. Nor was there any attempt to obtain social media records and what may have passed between the parties by way of Facebook and the like.
     6. There was a pretext call in which nothing inculpatory was said; to the contrary even accepting that the officer in charge did not receive the transcript of that phone call for some time, any consideration of it would reveal there was in that call words spoken between the accused and AG which indicated some non disclosure, such as the nature of their relationship, which might lead to some further investigation in that regard but that did not transpire.
     7. The accused had sought disclosure of the production of the police record of the complainant’s father. The point of that was to verify whether there was indeed some other reason to attend at the police station on 31 December 2019.  It was only produced shortly before the trial and has no entries which suggest support for the complainant’s / AG’s version of events concerning him that evening.  The record in fact suggests, albeit inconclusively, that he may have been elsewhere at that time.
     8. There was no attempt to narrow the date range of the indictment. There is evidence of the accused travelling overseas. The argument was that greater particularity may have allowed him to more easily rebut the allegations.
     9. The statements by AG of leasing property in early 2019 in Queensland were simply accepted in contrast to the investigation obtaining the leases of the properties of the accused.
     10. The apparent inconsistency of AG changing her telephone number to escape from DL and at the same time return from Queensland to assist him to sell his house. Nothing was done to clarify that possible inconsistency.
     11. The Crown was able to produce letters which became exhibit’s C, D and E.  Exhibit G and other documents created by the complainant were produced by the accused.  There was no explanation as to why there had not been any investigation so that those other documents might have been revealed or others if there are any similar to them.
     12. The assertion by AG that it was from the time of her knowledge of lady boys that she kept the children from attending at the home of the accused was not the subject of any investigation. It turned out that there was some two years between the time being asserted by AG and the time of the ladyboys. 
     13. So far as the trial revealed, nothing was done to seek to address the significant contradictions exposed by the evidence of Dr Weerasena, supported by her notes which the police did obtain, compared to that of AG on the medical issue.
     14. The use of leading questions as commented upon above was a basis for criticising the investigation. I adhere to my view already expressed that in broad terms the asking of leading questions based on a written record of a witness is a legitimate method.  There were however examples of very leading questions, where it was clearly inappropriate or at the very least a way of extracting evidence which will not result in much if any weight being placed on it. This is clearly more the case when the leading question is not premised by the witness’ earlier words.  The fourth interview with the complainant provided the most jarring examples of this. 
245. In my view, to varying degrees, each of these criticisms is valid.  The criticisms show when investigations were carried out which did not assist a prosecution, eg Dr Weerasena and the pretext telephone call, the matter was proceeded with and those defects were not tested or explored.  This is then added to by a lack of investigation into matters that may have assisted an objective view of the allegations.

Conclusion

263. At the outset of this judgment, reference was made to the assessment of the reliability of any witness’s evidence depending on the witness’s honesty and the witness’s accuracy.  It is not just a question of determining if the witness is truthful.  A witness may be entirely honest, and yet be unreliable, or inaccurate, as may be demonstrated by evidence which conflicts with the witness’ evidence.
264. I note the directions given above based on sections 294 and 293A CPA. Those directions highlight that delays and inconsistencies in complaint of sexual offending occur in cases where the offending has occurred. That does not of course mean that inconsistencies and delays mean that the offending has occurred; the inconsistencies and delays remain open to form part of the reasoning for why it may be that the heavy onus on the Crown has not been satisfied. Each case of course is decided upon its own facts and circumstances. In this case there has been a number of inconsistencies, as well as a range of other matters, which when taken together dictate that the fact finder would be very cautious in accepting the allegations of the complainant.
265. I note the Markuleski direction given above. 
266. At the risk of repeating some of the matters and findings made above, I should also note that in my view the demeanour of the complainant changed from what it was in examination in chief, to become something quite different in cross examination.  The evidence in chief was largely in the form of recorded police interviews.  There were further questions asked which the complainant answered from the remote witness room.  The change in demeanour being referred to is of the complainant’s evidence given “live” from the remote witness room, not from the recorded interview.  The change could be described as the complainant becoming very non committal.  A great many questions were answered by saying “I don’t know” or “I don’t recall” or “I don’t remember”, or “I don’t think so”.  The manner in which the complainant gave her evidence in cross examination gave the appearance, which I find was the case, that she was not adequately trying to give her evidence on many occasions, and indeed was trying to provide as little information as possible.  A good example of this is her answers to questions about whether she wrote certain notes that became exhibits.  These notes, and other notes of the complainant, became a feature of the trial and one theme of response of the complainant when asked if she had written a letter or note, was to say she did not remember.  When asked if it was her writing she would say in effect “I do not remember writing that”, and when pressed, would say words to the effect of “It is probably my writing”.  The complainant seemed to adopt a methodology that if she did not remember actually doing something, such as writing a note, then she would not admit it.  In some circumstances this may not be damaging, but here, with the notes admitted to be likely her writing, and their contents peculiarly of subject matter referable to the complainant, the effect was, and I find, that she was seeking to not assist, but rather to evade any consequences that any concessions may bring.
267. To compound this adverse impression, there were at least two occasions where the complainant, in giving answers, gave a little grin or smirk that was far from appropriate, and which I interpreted as an acknowledgment of having been caught out. The second of these occasions is at about T176, where the complainant was being challenged about the accuracy of a drawing she made which became exhibit A where it was suggested to her that the diagram she drew which was meant to be the accused’s lounge room was in fact a depiction of the room in which she was being interviewed; see [138] above.
268. For the reasons detailed above, the Crown is not assisted by the complaint evidence.  Nor on my findings does tendency reasoning aid the Crown case, because the evidence relied upon to support the tendencies, which need not be established beyond reasonable doubt, has not been established to my satisfaction sufficiently to allow it to be taken into account.
269. I have already referred to the appendix to this judgment, which now notes 44 different matters adverse to the Crown case.  Those matters include findings that the complainant, perhaps without herself fabricating but nevertheless went along with her mother in a what I found was a fabrication (concerning her consultation with Dr Weerasena), and that she was repeatedly evasive in answering questions, and that she is a person who conflates reality into fiction; see [223], [249], [252] and [255].  The evidence on one view does not even establish the complainant being at the alleged place of the alleged offending enough times for all, if any, of the allegations to have occurred.  In relation to AG, the findings made included the making of deliberate falsehoods, including, the statements falsely attributed to Dr Weerasena, and of seeking to affect adversely how the accused may be viewed, and I have serious doubts in relation to the alleged KFC note.  The total confusion as to exhibits C, D and E, which in effect are the foundation of the Crown case is due to the evidence of AG and the complainant.
270. All of the above matters lead me to conclude the evidence of the complainant cannot be relied upon.  The various findings relating to particular charges impacts not only on those particular charges, but in line with the Markuleski and reliability directions, there would need to be some aspect or characteristic about the complainant’s evidence in respect of any other particular charge to persuade me that particular charge should be viewed differently.  In this case, there is no such other aspect or characteristic in respect of any other charge, save for those matters on which favourable comment was made.  In my view, the favourable views expressed of the complainant in these reasons are comprehensively outweighed by the adverse matters identified, and do not give a basis for a favourable finding for any particular charge.  I note that of the matters set out in the appendix, a matter can be found relating to each of the occasions of offending, and with numerous of the matters relating to the allegations generally, and so strengthening the conclusion just expressed.

Verdicts

271. It follows from the foregoing that the outcome of the case is abundantly clear.  Having determined the outcome, prior to delivering the verdicts, I would like to mention one matter.  It is an impermissible line of reasoning in determining the case to ask why would the complainant say the things that she is saying, and I have not reasoned in that way.  The outcome may well be traumatic for the complainant.  It is outside the function of this judgment, yet I feel compelled to note the difficulties that would appear to have been facing the complainant and her family.  The evidence showed the complainant to be part of a household where her father on the evidence was a lifelong criminal with drug issues and DL was a man of violence towards her mother.    Consideration should be given to providing some assistance if appropriate to the complainant and JP.  Lastly, JP is to be commended for his strength of character in admitting that he was saying things to assist his sister.
272. In each of the 23 counts the verdict is not guilty.

Appendix

Matters adverse to the Crown case

1. Inconsistency between Crown case and exhibit I, with the complainant the source both times.
2. Failure to look for KFC note.
3. Similarity between exhibit D and AG evidence of what KFC note said.
4. Uncertainty about the time of the creation of exhibit C.
5. AG and the complainant differ as to what AG’s response was to learning of the allegations;
6. AG’s timing of learning of the allegations varies;
7. AG makes gratuitous reference to “ladyboys” to police.
8. On evidence of AG, there were in fact no occasions when the complainant was alone with the accused overnight at his residence.
9. There is no evidence in the first interview of the complainant to support counts 1 and 2.
10. The evidence suggests very few occasions of the complainant staying overnight at the accused’s; the Crown case is it was enough to allow 5 occasions of offending, and it is not said the offending occurred on each overnight visit, so it must be more than 5, yet, as stated at 8 above, on one view there were no occasions, and on another view, at best 4.  That is, the evidence does not establish to my satisfaction enough occasions for all of the offending to have occurred.  Contrary to this evidence, exhibit I, and [129] above show the complainant asserting a great many more weekends visiting the accused residence.  See further [258] of the judgment.

1. The confusion in the evidence of when the alleged KFC note and exhibits C, D and E were created.  On one view, the note said to be referring to “the last occasion”, counts 20-23, was written before the events occurred, though another interpretation allows for it to be after the event.
2. Staying with the accused in December 2018 suggests AG had no concerns as to doing so.
3. The complainant in her first interview made allegations as to matters occurring when she was unconscious.
4. The evidence relied on for count 2, obtained in the third interview, was obtained after repeated leading questions.
5. The evidence so gained for count 2 is strikingly similar to evidence concerning count 23, of the accused assaulting the complainant digitally from behind.
6. The frequent use of “try” and its derivatives by the complainant in connection with count 2.
7. The drawing by the complainant of what is said to be the lounge room where counts 3-6 are alleged to have occurred resembles more closely the interview room she was in.
8. No evidence of count 6 in the first interview.
9. The first interview, which makes reference to the itchy blanket incident, the first porn incident and the last time, which catches 10 charges, only has evidence that could support 5 charges.
10. The possibility of exhibit C being written in two locations is far fetched.
11. The confusing characteristics of exhibit E.
12. The failure of the accused to provide answers in her interview according with what is said, in respect of some counts, in exhibit E, eg the digital vaginal example.
13. The evidence of Dr Weerasena, which I find results in the evidence given by the AG as to the complainant’s vagina “hanging out” to have no factual basis.
14. AG’s evidence, which I find to be false, as to the doctor’s consultation, and her then relaying that false information to the police.
15. That it is likely the complainant repeats the baseless assertions of AG.
16. The evidence of JP does not assist the Crown, and is in fact another example of a Crown witness shown to have given false evidence, in this case by “guessing”.
17. The unlikelihood of the accused acting as alleged with the TV remote immediately after offending, re counts 22 and 23.
18. The use of leading questions to draw information concerning counts 20 and 21, about which the complainant said nothing in her first interview.
19. Another example of the evidence of the complainant coming from AG.
20. Recent invention in the fourth interview by the complainant concerning phones.
21. Recent invention in fourth interview as to the facts of calling the accused “dad” and of the accused telling her not to tell anyone.  The reference in exhibit D as not telling anyone and going to jail is noted, but it had not been said in an interview previously.  Similarly as discussed at [251] there is evidence from the accused’s exhibits to “dad” but not in the Crown case, and not to people other than the accused.
22. The contents of the fourth interview undermine totally what may have been left of the credibility of the complainant.
23. The at least exaggerated evidence of physical abuse told to LM by the complainant.
24. The stark change in willingness of the complainant to adopt exhibit G.
25. Discussion between AG and the complainant whilst complainant under cross examination.
26. The evasive way the complainant gave her evidence, particularly when confronted with documents that seemed very likely to be written by her.
27. Exhibit E could be characterised as a story; that, and its “omnibus” nature as explained, and lack of particularisation add weight to that view.
28. The conflation argument of the accused gains weight due to exhibits 1 and 2; and I find exhibit 1 shows the complainant to be a writer of sexual fiction.
29. My ultimate finding as to LM’s complaint evidence is that it does not assist the Crown case.
30. The evidence showed at least one, and possibly two, other occasions of the complainant making up stories and telling them to a person in authority, her teachers.
31. The complainant’s clear evidence is that she never made any complaint about the accused to TN.
32. The complainant conflates reality with fiction, and is an unreliable witness.
33. I find the complainant and AG discussed matters concerning Cody during the trial, and the complainant denied this.
34. AG raised the topic of ladyboys deliberately to unfairly prejudice the accused; this finding goes beyond my first reference to this matter at [117.4].

Amendments

01 February 2023 - corrected paragraph numbering

Decision last updated: 01 February 2023