R v Foster

[2021] NSWDC 725

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Foster [2021] NSWDC 725

Hearing dates:

16/8/21-23/8/21, 27/8/21

Date of orders:

27/8/21

Decision date:

27 August 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

I find counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt and I convict the accused of those matters

Catchwords:

Crime – Judge alone trial – Verdict – Sexual touching of person with cognitive impairment - Sexual act towards person with cognitive impairment – Sexual intercourse with person with cognitive impairment

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Cases Cited:

Elomar & Ors v R [2014] NSWCCA 303

Jiang v R [2010] NSWCCA 277

R v Markuleski [2001] NSWCCA 290

Category:

Principal judgment

Parties:

NSW DPP – Crown
Paul Douglas Foster - Accused

Representation:

Counsel:
Mr R Munro for Crown
Mr S Ryan for Accused

File Number(s):

2019/260738

Publication restriction:

Non-publication order in relation to the identity of the complainant

Judgment on verdict

1. The accused, Mr Paul Foster, is charged with eight offences, five being offences of sexual touching of a person with a cognitive impairment under s 61KD of the Crimes Act 1900, one alleged offence of committing a sexual act towards a person with a cognitive impairment, that being under s 61KF of the Crimes Act, and two charges of sexual intercourse with a person with a cognitive impairment, those being under s 66F of the Crimes Act 1900. On 12 August 2021 I made an order by consent for the accused’s trial to be conducted by judge alone and on that day he was arraigned and his trial commenced.

2. The allegations involve one complainant, Ms P, who, at the relevant time, was a patient at Kaoriki House where she had been admitted from 12 March 2018 until 2 April 2019. Kaoriki House is a 12 bed psychiatric inpatient ward within Morisset Hospital, and the accused was a senior nurse there at the time.

3. In this judgment I record my verdicts and reasons for reaching those verdicts. In reaching my verdicts I must take into account any warning, direction or comment which, by law, would be required to be given or made to a jury.

ONUS AND STANDARD OF PROOF

4. The Crown bears the onus of proving the charges beyond reasonable doubt. The accused is presumed innocent unless or until the Crown satisfies me beyond reasonable doubt of his guilt in relation to any particular charge. Beyond reasonable doubt is, of course, the highest standard of proof known to our law. In assessing the evidence and in determining whether the Crown has satisfied me of the guilt of the accused, I must approach the task with an open and unbiased mind, act logically, rationally and not capriciously. Although in carrying out that task I should apply common sense, my verdict must be based only on the evidence called in the trial.

EVIDENCE BY AVL

5. The complainant gave evidence by audio visual link from a remote room. That is a standard procedure in matters of this kind and I must not approach the evidence any differently or give it any greater or lesser weight, nor do I draw any adverse conclusion against the accused by reason of the evidence being given in this way.

COMPLAINT EVIDENCE

6. The Crown relies in this case on evidence of complaint made by the complainant to various people. It is a matter for me as to whether I am satisfied that such complaints were made. I direct myself that I am entitled to use that evidence in either or both of two ways.

7. Firstly, the evidence of complaint made to others is some evidence that the alleged offences did occur. In other words, I can use the evidence as going to the truth of what the complainant said. If I do use the evidence as going to the truth of the allegations then the weight that I attach to it is a matter for me. I also direct myself that whether or not I treat the evidence of complaint in this way I am entitled also to use it for a second purpose, namely, that the fact that the complainant made the complaints at the time and in the manner that she did may lead me to conclude that her evidence is more believable than if she had not raised the allegations as she did.

8. However, 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 more than once.

SECTION 294 CRIMINAL PROCEDURE ACT

9. I note that in this case there have been some periods of delay between the sexual offences alleged by the complainant and the complaint to others. In accordance with s 294 of the Criminal Procedure Act 1986 I warn myself that the absence of complaint or delay in complaining does not necessarily indicate that any of the allegations are false. I am conscious that there may be good reasons why a victim of sexual assault may hesitate or refrain from making a complaint.

CONTEXT EVIDENCE

10. The complainant has given evidence to the effect that, in addition to the four incidents that are the subject of the counts in the indictment, the accused assaulted her in the form of some type of sexual touching on other occasions. This evidence was admitted for a limited purpose. It was admitted solely for the purpose of placing the complainant’s evidence into what the Crown says is a realistic and intelligible context. In other words, to set out a more realistic and accurate history of the conduct that the complainant alleges against the accused. It is to avoid any artificiality or unreality in the presentation of the complainant’s evidence. However, I remind myself that I must not use this evidence for any other purpose. I must not use it as establishing any tendency in the accused to commit offences of the type charged against him. I cannot act on the basis that the accused is likely to have committed the offences in the indictment because of these additional allegations made by the complainant. Also I must not substitute the evidence of these other acts for the proof of the specific charges in the indictment. I must not reason that just because the accused has done something wrong to the complainant on some other occasion he must have done so on the occasions alleged in the indictment. Put another way, I cannot punish the accused for other acts by finding him guilty of any of the charges in the indictment. Rather, I must give separate consideration to each and all of the counts in the indictment.

ESSENTIAL CROWN WITNESS

11. Although the allegations by the complainant are given support by other parts of the evidence to which I must have regard, the complainant is an essential witness in relation to each of the allegations. That is because in each case it is alleged that only the complainant and the accused were present and in a position to observe what, if anything, took place. In those circumstances, while I do not need to be satisfied beyond reasonable doubt of every word uttered by the complainant, I do need to be satisfied beyond reasonable doubt of the essence of the allegations that she makes concerning the alleged offences.

MARKULESKI DIRECTION

12. As I said, I must give separate consideration to each count in the indictment. It is also necessary that I give myself a direction of the kind discussed in R v Markuleski [2001] NSWCCA 290. In other words, given that the complainant is an essential witness, if I have a reasonable doubt about her evidence in relation to any particular count, I must take that into account in deciding whether such a doubt translates to a reasonable doubt in relation to any other count.

EXPERT EVIDENCE

13. Expert evidence has been called in this trial. That evidence came from neurologist, Dr Pepper; psychiatrist, Dr Keighran; and FASS scientist, Ms Wedervang. However, there has been no challenge to the expertise of any of those witnesses nor as to the opinions that they have expressed. Rather, and as the parties agreed, it is a matter of what I make of that evidence when considered in the context of the trial as a whole.

INFERENCES

14. I am entitled to draw inferences of fact from other facts that I find proved. However, I must be very careful in drawing inferences and I must not do so unless the inference is reasonable and rational in the circumstances. Furthermore, and because of the onus of proof on the Crown and the very high standard of proof, beyond reasonable doubt, I must be extremely careful before drawing any inference of guilt. Before doing so, I must carefully examine any such inference and satisfy myself that it is the only rational inference available in the circumstances.

TENDENCY EVIDENCE

15. In a tendency notice dated 2 August 2021 the Crown seeks to rely on what it calls "tendency evidence and reasoning". In that notice the Crown sets out at para 2 its assertion that the accused has a tendency to have a sexual interest in the complainant. At para 3 it asserts, further, that the accused has a tendency to act in a particular way, namely, to act upon his sexual interest in the complainant by manufacturing circumstances where he can be alone with the complainant and then to engage in sexual activity with the complainant. After the accused has engaged in sexual activity with the complainant, he attempts to buy her silence by gifting her additional cigarettes. It is noted in para 4 of the tendency notice that the Crown seeks to have the tendency used in particular ways.

16. Firstly, the tendency evidence sought to be relied upon relates to charged offences in the indictment which are grounded in the complainant’s evidence and the observations of witness, Helen Duggan. Secondly, the Crown seeks to rely upon tendency reasoning, that is, each count is cross admissible when considering each other count in the indictment. For example, if the tribunal of fact finds count 8 proved and accepts that the accused has a tendency to have a sexual interest in the complainant and to act upon that sexual interest by engaging in sexual activity with her, then the tribunal of fact can use that tendency of the accused when considering the other seven remaining counts in the indictment.

17. I have had regard to the contents of the Crown’s tendency notice and to submissions made to me about it. However, in my view, the content of the tendency notice is not a correct characterisation of the evidence. If I was to find that the accused had an actual sexual interest in the complainant which he acted on, for instance, in committing the offence set out in count 8, then his actions in doing so are, in my view, more correctly categorised as evidence of an actual state of mind, namely, a sexual interest in the complainant which he, in fact acted on, rather than as being a "tendency": see Jiang v R [2010] NSWCCA 277 at [45]-[47]; Elomar & Ors v R [2014] NSWCCA 303 at [361]-[372].

18. However, if I am wrong in categorising the evidence in this way and it is, indeed, tendency evidence, then I direct myself as follows. If I am satisfied that one or more of the acts relied upon by the Crown did occur, then I should go on to consider whether, based on that act or those acts, I am satisfied that the accused had the tendency which the Crown alleges. If I decide that I cannot draw the conclusion that the accused had that tendency then I must put aside or ignore any suggestion that the accused had the tendency asserted by the Crown. If I am satisfied from any acts I find did occur that the accused did have the tendency asserted by the Crown then I may use that tendency in considering whether I am satisfied beyond reasonable doubt of any of the other offences in the indictment.

19. However, even if I do find that the accused had the tendency alleged by the Crown, that fact alone is not enough to prove the accused’s guilt of any offence in the indictment, but it may provide support for other evidence in the Crown case, and that is the only way in which I can use any finding of the alleged tendency. Of course, before I can find the accused guilty of any count on the indictment, I must first be satisfied beyond reasonable doubt that the evidence given by the complainant in relation to the count I am considering is truthful and accurate and that the specific act alleged in that count occurred. It is important to note that I cannot find the accused guilty of any count in the indictment based only on a finding that he had the tendency alleged by the Crown.

20. The only way in which evidence of the alleged tendency can be used in support of the Crown case is as I have set out. I must not substitute evidence of some other act or some tendency as being sufficient to prove any of the charges in the indictment. As already explained, before I can find the accused guilty of any count I must be satisfied beyond reasonable doubt of the particular allegation in that count and of the elements that apply to that count. Also I must not reason that if the accused committed one or more acts of misconduct he is for that reason a person of general bad character and so must have committed one or more of the alleged offences in the indictment.

RIGHT TO SILENCE

21. The accused was arrested on 21 August 2019 and, after being told of the allegations, he exercised his right to silence. The fact that accused exercised his right to silence cannot be used against him in any way at all, nor can it be used to assist or support the Crown case or to fill any gaps in the Crown case if I consider there to be gaps.

EVIDENCE OF THE ACCUSED

22. The accused chose to give evidence in the trial and also called a character witness to give evidence. There was no obligation on him to do either of those things. The fact that the accused gave and called evidence does not shift the burden of proof, which remains always with the Crown.

23. In his evidence the accused denied the offences. If I accept his evidence in that regard with respect to any or of all of the allegations then I must find him not guilty. If I think that his evidence is probably true or that there is a reasonable possibility that it is true or might be true then, again, I must also find him not guilty of the particular count that I am considering. Although the accused put forward a case in his defence he bears no onus of proof. The onus remains on the Crown. Suspicion, even the gravest suspicion, is no substitute for such proof. If I do not accept any of the accused’s evidence I must simply put it aside and return to the question of whether the Crown has proven any or all of the charges beyond reasonable doubt.

MOTIVE TO LIE

24. The accused in his evidence said he thought that the complainant might have targeted him in relation to sexual suggestions or propositions, specifically in relation to the idea of filming them having sex and then suing the hospital for damages and that she may have felt emboldened in this regard by reason of his evidence that on Christmas Eve the complainant flashed her breasts at him. While I take into account this suggested motive to lie, the fact that it has been raised does not shift the onus of proof from the Crown, nor does it mean that the accused takes on any onus to prove the suggested motive. Therefore, while it is a matter that I must take into account, if ultimately I am not satisfied that any of the allegations do arise out of a motive to lie, I must put aside the suggested motive and return to the question of whether the Crown has satisfied me beyond reasonable doubt of any or all of the allegations.

CHARACTER EVIDENCE

25. The accused has led evidence of his good character. I am entitled to use that evidence in either or both of two ways. I am entitled to use it firstly by reasoning that a person of prior good character is unlikely to have committed any of the alleged offences. Secondly, I can use the evidence to support the credibility of the versions that the accused gave in his evidence in court. Whether I use the evidence in either or both of these ways is a matter for me. However, good character is not, of course, a defence.

THE CROWN CASE

26. I turn then to consider the evidence called in the trial.

27. Dr Elizabeth Pepper is a neurologist who gave evidence about the nature of the disease or syndrome that the complainant apparently suffers, which is known as Pantothenate Kinase-Associated Neurodegeneration, which has been referred to in this trial by the letters P-K-A-N or PKAN. Although the signs and symptoms of that condition vary from person to person, a person with that condition may have difficulty in articulating words clearly, may have very slow, muffled or strangled speech or a tendency to repeat syllables or words over and over very rapidly. A sufferer may also have involuntary movements and cognitive impairments including in their executive functioning.

28. The complainant, Ms P, gave evidence over two days. She said that she commenced living at Kaoriki House in about March 2018 and stayed there for about a year. The complainant told the Court that she has schizophrenia, for which she takes a tablet morning and night, and that, although she had previously been on methadone because of an earlier heroin problem, she had been off the methadone now for about a year. She said, however, that she was on methadone while she was at Kaoriki House. The complainant said that one of the rules at Kaoriki House was that cigarettes had to be surrendered but that patients could have one cigarette about every three hours.

29. The complainant was shown a diagram, exhibit 2, and explained that the "open courtyard" on that diagram was an area where patients would hover around, smoke cigarettes and where occasionally on Fridays they would have a barbeque. She said that sometimes there were a lot of nurses on duty in Kaoriki House but most of the time it was probably two on the floor. The complainant met the accused at Kaoriki House where she believed he was head nurse. She said that he used to say that she was a "pretty girl".

30. The Crown case involves four incidents. The first incident is the subject of count 1. The complainant gave evidence relevant to this count that on Christmas Eve 2018 there was a barbeque and that the accused was doing the cooking. She said that after everyone had gone and cleaned up the accused pulled her into a little "hidey-hole" spot which was "like a corner where no-one could see you". She said that it was late afternoon, she was standing up and that the accused was touching her breasts and also "fondling himself" and that he put his hand under her shirt and bra and said, "Jeez, you’ve got nice tits", and that when she said, "Paul, leave me alone. I don’t want to do it. I’m uncomfortable", the accused replied, "Don’t worry about it." She said this went on for a couple of minutes and that she was too doped up on medications to walk off but that the incident eventually ended when she "dawdled off".

31. The second incident relied upon by the Crown is the subject of counts 2 and 3 in the indictment. The complainant said that there were many physical interactions with the accused, however, in relation to counts 2 and 3, the Crown relied on the following evidence from the complainant. She said that on another occasion when she was in the same open courtyard area she was sitting down but was placed in front of the doors and the accused approached her and started playing with her breasts. She said that the accused was in a position where he could be in front of her and "see if anyone was coming". She said that the accused was playing with her breasts on the inside of her clothing using circular motions with his hands and that he also put his hand down her skirt and into her underpants where he was "fingering" her vagina.

32. She said that this went on for a few minutes, maybe five minutes at the most, and that the accused kept saying, "You’re my favourite. You smell like berries and you taste like sweet red wine", or similar. She said she began to cry and that, after she started crying, the accused left her alone and she went to her room where she continued to cry. She was asked whether this second incident was before or after the incident which occurred in the "hidey-hole" area but said that "It happened two or three times, each thing, over a year, the year I was there."

26. The third incident relied upon by the Crown is the subject of counts 4 and 5 in the indictment. The complainant described another occasion which she said occurred "in the courtroom" at Kaoriki House. On this occasion she said the accused took her to this location through a locked door and once inside he sat on the edge of a table and was fondling his penis and fondling her breasts. She said he asked her to suck his penis but she said no and that she wanted to go but the accused pulled her back by the arm and said, "Don’t worry about it." She said that the accused pulled her in front of him while he fondled her breasts, although she could not recall whether this was on top of her clothes or underneath. This incident she said stopped when she started crying again as she was scared.

27. The complainant said there were also occasions earlier in 2018 where she would wake up "with semen all over my body" but could not remember the night or days before and did not know what was happening. However, she said that several times she did become partially conscious and saw the accused "on top of me". She was challenged on this in cross examination and it was suggested that she may have been dreaming or that her mind was playing tricks on her but the complainant denied these suggestions.

28. The fourth incident relied upon by the Crown is the subject of counts 6, 7 and 8 in the indictment. The fourth incident is said to have taken place in what the complainant described as a locked room, which she identified on exhibit 2. She said the accused took her by the hand and walked her there "past the staff and everyone". At the time she said it was just before the last cigarette break and that the staff were putting out supper food, which usually happened around 7 to 8pm. She said the accused had a key to the room and once inside he "took my clothes off and lied me on the bed" and that the accused took off all his own clothes.

29. She said that the accused placed his penis into her vagina and then placed his penis in her mouth and that, after this, he put his penis between her breasts until he ejaculated on her breasts. The complainant said she was looking for her clothes that were on the ground and used her T-shirt to wipe the semen from her chest. The whole incident she said lasted about ten to 12 minutes or 15 minutes at the most. The complainant said that after this the accused told her that if she ever spoke about the assault she would lose her house or be moved to another hospital where she would not get the house for which she had been on a waiting list.

30. The complainant said that she first told her daughter about the accused’s actions about one or two days before this last incident. She said that on that occasion she rang her daughter after she found her mobile phone, which she said had been missing for many months. Evidence was led through the complainant of an interview recorded by police on 30 January 2019 and that recording is exhibit 4. In that interview the complainant said that on Christmas Eve 2018 the accused approached her and said, "Come with me", and that she went with him, although she could not recall where, and that he gave her three cigarettes, told her to keep her mouth shut and played with her breasts.

31. In her interview she said that "it" had happened three or four times after that and that "the night before last night", in other words 28 January 2019, the accused had taken her to "the dark room" where he stripped naked, pulled her pants down and "began to have sex" with her. Later in the interview she said that the accused had "got on top of me and started penetrating me…and then moved his body up over the top of mine and starting using his penis around my breasts and putting my breasts together…to actually make love to my breasts". She further said, "and that’s when he ejaculated over my breasts". She said she did not notice any tattoos or other markings on his body but that the room was dark.

32. The complainant told police that she did not get naked but her shirt was pulled up and she was pretty sure that she had a skirt on. She said that the accused told her not to tell anyone as he would get in trouble and that she was his favourite. She said that because she thought no-one would believe her and would think she was delusional, she used her brown-coloured top to wipe off the accused’s ejaculate for the purposes of DNA and placed a pink lipstick mark on the shirt to indicate where the DNA was. She said she sent the top to her daughter via post and had called her daughter, Kirsty, and told her what was happening.

33. She told police that the room was next to the kitchen and was a vacant bedroom that was "Sandy’s old room". The complainant said that after this event she had a shower and went to her room and cried. When asked during this interview whether she would agree to being medically examined, the complainant declined. However, I note that she did later agree to an examination, which was done at John Hunter Hospital. In evidence in this trial the complainant also said that each time the accused would touch her sexually he would give her extra cigarettes, sometimes three and at other times told her to take as many as she needed.

34. The complainant was cross-examined and agreed that while at Kaoriki House her mental health varied and she would have good days and bad days. She said that when her mental health was good she would sometimes hear and see fairies and angels but that when it was bad she would feel like the walls were caving in on her and she would see, feel and smell spirits who would sometimes be hurting people and would also see spirit animals. The complainant was also cross-examined about cigarette smoking and said that, on her recollection, she was generally only allowed to smoke every three hours, although she agreed that at times she would ask the nurses for a cigarette outside those times but, if refused, would not ask again.

35. It was put to her that if her evidence about the accused giving her extra cigarettes was true then she would have run out of cigarettes more quickly, to which she said that this had, in fact, happened on occasion. It was suggested to her that on Christmas Eve she had approached the accused at the nurses’ desk and flashed her breasts to him quickly and that the accused had given her one cigarette. However, she disagreed with the suggestion that she exposed her breasts. She was cross-examined about the occasion when she gave her first statement to police, which was on 5 February 2019 and she agreed that she told police in relation to the events on 28 January 2019, which has been referred to as the incident in the spare room, that she heard a witch cackling at her who had told her to wipe up the sperm as she would need it. The complainant agreed that this was the case and said that she was very ill at that time.

36. It was somewhat unclear on the evidence as to what exactly the complainant meant by "at that time", in other words, whether it was on the occasion that she had first spoken to police on 30 January or on 5 February when she gave her first written statement. In relation to her evidence that the accused had told her "You smell like berries and you taste like sweet red wine", the complainant agreed in cross-examination that she had not told this to police but said that she had not told police a lot of things as she was still under the influence of prescribed drugs and that she had been given electric shock therapy just days before that and that this had affected her memory.

37. The complainant agreed that she had first referred to electric shock therapy in a statement made about two weeks before the commencement of this trial and that the electric shock therapy happened in her room for four to five days where she was strapped down by three or four staff and she said that this was not a delusion or hallucination. It was also put to the complainant that some time before Christmas 2018 she had approached the accused and said that they should use her phone to film them having sex and that the complainant would then sue the hospital for $2 million and that she would share half the money with the accused. The complainant said that this conversation never took place.

38. It was also put to the complainant that on the night of 28 January she had approached the accused at the nurses’ desk and said, "Paul, I want you to blow on my tits", or words to that effect and that, after this, they went to a spare room where she squatted down and masturbated the accused’s penis until he ejaculated onto her breasts. The complainant, however, did not accept this version of events. The complainant was also cross-examined about a number of assertions attributed to her in the clinical notes, including references to paedophiles, her ex-husband hurting her and her lipstick being stolen, but she did not recall saying any of those things.

39. Evidence was given by the complainant’s daughter. She said that she had regular phone contact with her mother while she was in Kaoriki House. On the night of 28 January, sometime around 7.30, her mother called her and sounded very upset and scared, which was not her usual behaviour. In that call the complainant told her daughter that the accused had been sexually molesting or assaulting and/or having sexual intercourse with her and that this had been an ongoing thing. The daughter said that she, that is, the daughter, became upset and raised her voice at her mother as she could not understand why her mother had not mentioned this earlier.

40. She also told her mother to report the matter but the complainant said she could not do this until a particular trusted nurse came on shift. The daughter said she received another call from her mother that same night at about 10pm and that in this call her mother was crying and whispering and that she might have been hiding under the bedsheets. The daughter said the complainant did not go so much into details but did say that the accused had just assaulted her again and that his "bodily fluids" were still on her. The daughter told the complainant to take off the shirt she was wearing and send it to her. The next day the complainant called her to say she had sent the shirt, which arrived at the daughter’s house on 30 January.

41. The shirt was subsequently taken by her to Mascot Police Station. She gave evidence that it took many months after the first disclosure for her mother to give her any details of what had happened but eventually her mother said she had been fondled and groped and raped and that it had started with her being given extra cigarettes. In cross-examination she said that in the weeks leading up to 28 January the complainant’s mental health seemed fairly consistent although she sounded like she was on stupefying heavy drugs. On the night of 28 January when the complainant called she said that the accused had "jerked off on my breasts and there is stuff on my shirt". It was put to the daughter that the complainant had a tendency to embellish things in the past and she agreed that she said something about this in her police statement. However, she added that her mother had never previously made an allegation of this type.

42. Social welfare worker, Helen Duggan, gave evidence about her work with the complainant at Kaoriki House. She said that within a few months of the complainant’s admission the New South Wales Trustee was appointed to manage the complainant’s finances but that the complainant would receive a small quantity of spending money each week. On the morning of 30 January she said the complainant asked to speak to her in private and then said that something huge was going to happen this afternoon but that she could not say what it was. She said that she noticed the complainant was restless and a bit anxious and that she also asked whether she would still be going to the house at Thornton that had been discussed and wanted to be reassured that she would not be sent to another hospital.

43. Ms Duggan also described an occasion a couple of weeks earlier, which she said was unusual, in which the accused had given the complainant extra cigarettes and that when Ms Duggan asked why he had done so he said that he "wanted to have a quiet shift". The witness also explained that she had noticed the complainant had started to argue with nurses about wanting extra cigarettes and Ms Duggan also said this was unusual as the complainant appeared really settled in the hospital. In relation to the events of 30 January, she said that shortly after the accused and others were told that allegations were being made by the complainant, the accused said words to the effect of "She’s dangerous."

44. After this she travelled to the offices of Maitland Independent Disability Support Services (MIDSS) at Thornton where the complainant was being spoken to by police and she arrived part way through that interview. While at the MIDSS office she asked the complainant if this was the "something huge" that she had referred to earlier that day and the complainant said it was. She said the complainant eventually agreed to be medically examined and that Ms Duggan drove her to the hospital. On the way there the complainant told Ms Duggan that the accused had first started touching her breasts and would give her extra cigarettes and that a day or so before 30 January she went with him into a room where he took all his clothes off, which surprised her, placed her on the bed and put his penis in her vagina for a short time then into her mouth, which she did not like, and then between her breasts until he ejaculated.

45. The complainant had also confirmed to Ms Duggan that she had used her shirt to wipe semen from her breasts and had then sent the shirt to her daughter, marked with lipstick. It was put to Ms Duggan in cross examination that the complainant’s mental health varied a lot during her admission, however, she said that this was the case only during the first few months of her admission and, as far as she was aware, the complainant did not have a relapse in her mental health around January 2019 and did not appear to be experiencing delusions at that time.

46. Crystal Wells is a disability support worker who in 2019 was working for the MIDSS. She had been working with the complainant for about six months. By January 2019 she was seeing the complainant almost every day and had built up a good relationship with her. On 30 January 2019 she picked up the complainant from Kaoriki House and was driving her to some form of community activity. She said that the complainant appeared “down” and told Ms Wells that she wanted to tell somebody something but was afraid she would get someone into trouble.

47. After being reassured that she could trust Ms Wells, the complainant told her that a nurse named Paul had been having sex with her and had been taking her into a room and that on one of these occasions she had lost a cigarette lighter in the room. The complainant also told Ms Wells that the nurse had ejaculated onto a singlet, which the complainant had later sent to her daughter with a Christmas present. She said the complainant was very upset when describing these events and that she had never seen her like that before. The complainant said to Ms Well that it had been happening for a while, including before Christmas.

48. The complainant also said that the nurse had told her that if she told anyone she would not be able to move to the residence she was waiting on and would be kicked out of hospital and have nowhere to live. After this Ms Wells drove with the complainant to the MIDSS office where she informed her supervisor, and police were contacted. Ms Wells confirmed in cross examination that she had reported the allegations that morning and that there was no way she would have waited a number of days to do so.

49. Ms Catherine McGowan was employed as a sexual assault nurse examiner at John Hunter Hospital and on 30 January 2019 she took some background information from the complainant, which included a history that on Monday 28 January at approximately 8pm a male nurse took her into an empty single patient room, undressed himself, pulled her onto the bed by both shoulders and lay on top of her. The history included that the nurse had ejaculated between her breasts and that also "he put his penis into me" and also put his penis in her mouth and that the whole incident lasted about ten to 15 minutes.

50. Ms McGowan conducted a physical examination of the complainant, which included taking swabs and smears from various parts of her body, including her breasts and vagina. Ms McGowan also noted some injuries, which she documented in exhibit 6. Those injuries were on the right chest adjacent to the armpit - a round bruise 1.5 centimetres in diameter and on the left chest adjacent to the armpit, three round bruises, two of which measured 1 centimetre and one which measured 1.5 centimetres. In cross examination she agreed that there were no bruises on the complainant’s arms or shoulders and no injuries were observed to the complainant’s vagina or the surrounding area. She also agreed that no photographs were taken of the complainant and confirmed that the complainant reported suffering no pain after the alleged assault.

51. Ms Lisa Anne Wedervang is a scientist employed by the Forensic and Analytical Science Service who undertook an analysis of forensic samples taken from the complainant, the complainant’s singlet top, and from the accused. Her uncontested evidence was to the following effect. Firstly, on a swab taken from the left inner breast area of the complainant there was detected a sperm cell and the partial DNA profile recovered from the sperm fraction had the same profile as the accused. Secondly, the testing of the front chest area of the singlet detected the presence of semen, which was also found to have the same DNA profile as the accused. Ms Wedervang also conducted testing of various vaginal and vulval swabs and smears but concluded that no semen was present and that no male DNA was present.

52. Dr Rowan Keighran was the complainant’s treating psychiatrist from about November 2018. He said that Kaoriki House is a 12 bed psychiatric ward within Morisset Hospital and that he would visit there once a week on Tuesdays to review patients. He said that the complainant was initially admitted due to mental state decompensation and rationalisation of her medication. He referred to the complainant’s diagnoses of having PKAN and schizoaffective disorder (SAD). He said that SAD is somewhat similar to schizophrenia and is associated with psychotic symptoms, including hallucinations that wax and wane. When he took over her care the complainant was at a stage where, after various trials of medications, there had been some improvement although with some flare-ups.

53. He said that classically a flare-up would usually be brief and quickly attenuated and not cause overall too much distress compared with the patient’s overall history and would usually be far, far less severe and might last a matter of hours or perhaps day or two and that it might change moment to moment. In the event of a flare-up, Dr Keighran said that a patient would commonly be given PRN medication to help calm things down. Dr Keighran was taken to the evidence of the complainant’s daughter who said that at times her mother seemed drugged, almost unresponsive and unable to communicate properly. He said that these could be effects from some of the medications that the complainant was on and that this was something that the medical team would be trying to rationalise if it was happening. Dr Keighran also confirmed that electroconvulsive therapy (ECT) was not administered at Kaoriki House and that during his time in managing the complainant she did not received ECT.

54. In cross-examination Dr Keighran was taken to a number of pages of the clinical notes, which became defence exhibits A through to G, and agreed that some of these provided examples of flare-ups. Dr Keighran also stated that Rohypnol was never prescribed at Kaoriki House, to his knowledge, but that at times they would prescribe Serepax, ie, oxazepam. I note that this cross-examination arose out of some evidence of the complainant to the effect that she thought at times she was perhaps experiencing the effects of drugs of those kinds.

26. Detective Senior Constable Kevin Hoffman, who was the officer in charge of the investigation, gave evidence about the arrest of the accused and a number of investigative steps, including the taking of photographs of the spare room which, on 30 January 2019, contained a bed with no sheets on it. He also confirmed that on that bed he found a cigarette lighter with the name Allan Brown on it.

DEFENCE CASE

63. The accused gave evidence in his own case and did not dispute that an incident of a sexual nature took place on the night of 28 January 2019. He said that the forensic evidence collected from the complainant’s breasts and from her top had arisen from an incident in which he ejaculated onto the complainants breasts after she asked him to do so.

64. As I have already observed, if I accept that the accused’s version is true or might be true, or even if there is a reasonable possibility that it is true, then I must find the accused not guilty. The accused gave evidence that he was very rarely the complainant’s allocated nurse, that she was a female patient and this would have been against the normal practice. However, he said that he would have, at times, been required to check her blood pressure or blood sugar levels. He said that cigarettes were generally given to smoking patients at certain times of the day and usually up to seven cigarettes a day. He said that there were only two occasions where he gave the complainant additional cigarettes.

65. The first occasion he said was on Christmas Eve when he said the complainant approached him and asked for an extra cigarette and offered to "flash my titties if you do". He said that he told the complainant, "It doesn’t make any difference to me. I don’t care what you do", but that she did expose her breasts briefly and he gave her two cigarettes. He said he did not tell anyone about this incident and made no note of it as he did not see it as clinically significant. The second occasion he said was around mid January when the social worker, Ms Duggan, was present. He said the complainant asked for two cigarettes and he gave them to her as she had been pressuring staff a lot of the time for extra cigarettes and he did not want any trouble from her. He agreed that Ms Duggan had questioned him about it and that he replied that he wanted a quiet shift.

66. The accused said that he had never said, "Jeez, you’ve got nice tits", to the complainant, had never told her she was pretty or was his favourite and never said anything like "You smell like berries and you taste like sweet red wine". He said he was not attracted to the complainant "in any way whatsoever" and that "she is not pretty". He said he had never grabbed her breasts or touched her vagina or asked her to suck his penis. He denied ever being alone in the tribunal room with the complainant and had never been in the clinic room with her when the door was closed. However, the accused said that on the night of 28 January he was writing notes in the nurses’ room when the complainant approached him and said, "Paul, I want you to blow on my tits", and that when he asked her to repeat herself she said, "I want you to come on my tits."

67. He said he thought about the proposition, and decided he would do it and said, "Okay, Darlene." He said that from where he was seated he could see at the far end of the corridor about 50 metres away that there was an empty spare bedroom. He said he told the complainant to go and wait there while he locked up and then followed her to the room where she was waiting for him to open the door. Once he did that he said the complainant squatted down with her back against the bed and lifted her top to expose her breasts. He said he stood in front of her and they both undid his pants and that the complainant then masturbated his penis for about a minute but then became tired and so he took over and masturbated himself until he ejaculated onto her breasts.

68. After this he said the complainant seemed agitated and was trying to find where the semen had gone and that he pointed to the left side of her chest, after which the complainant used her singlet to wipe up the semen. The accused said that he did not give the complainant any cigarettes after this and she simply returned to her room. The accused was asked by his counsel why he had engaged in this sexual act. He said that he was having a bad day, his marriage was strained, he was angry and frustrated in his job and so he just said to himself, "Fuck it, I’m just gonna do it." The accused also claimed that this was not the first time that the complainant had acted out sexually towards him. He said that on Christmas Eve she had offered to "flash my titties" in exchange for a cigarette and that she did, in fact, briefly expose her breasts and that the accused gave her an extra cigarette on this occasion.

69. He said also that around 28 December 2018 she approached him and suggested that they have sex and film it so that she could sue the hospital but that the accused just laughed this off and told her it would not be a good idea.

70. The Crown in submissions pointed to a number of aspects of the accused’s evidence which he argued would lead me to reject it. The most compelling of these, in my view, is the accused’s answers to whether he was sexually interested in or attracted to the complainant. The accused was very forthright in his denials in this respect. He said, for instance, that "not in any way whatsoever" was he attracted to her and he said similar things at other points in his evidence. In addition he claimed that he was "indifferent" to seeing the complainant’s breasts when, according to him, she suddenly exposed them to him on Christmas Eve. This evidence of the accused, in my view, stands in stark contrast to his actions on the night of 28 January 2019. Leaving aside the evidence of the complainant and the accused as to what happened in the spare room that night, there is the undeniable fact demonstrated by the scientific evidence, that the accused’s semen ended up on the complainant’s bare breasts.

71. In my opinion, this undisputed fact supports the conclusion, on an objective basis, that the accused had a sexual interest in the complainant or at least in the complainant’s bare breasts on that occasion to the extent that he ejaculated onto her body. That is a powerful piece of objective evidence which points strongly to the existence of an interest of a sexual nature in the complainant or at least in her breasts and which contradicts the accused’s claim that he had no sexual interest whatsoever in the complainant and was "indifferent" to her naked breasts.

72. Furthermore, the fact that the accused was prepared to engaged in a sexual act of any kind with a patient, especially in a clinical setting where there was a significant risk of detection, are matters adding substantial support to the existence and strength of the accused’s sexual interest in the complainant and/or her breasts. The accused’s denial of a sexual interest in the complainant or her breasts is evidence that I do not accept. I also do not accept the accused’s evidence that the complainant had previously exposed her breasts to him and had suggested that they film themselves having sex.

73. Firstly, the accused made no notes of any such potentially significant events which, if they happened, had the capacity to seriously compromise him professionally and also compromise the hospital and its staff. Secondly, while a number of witnesses gave evidence and were cross-examined about the types of behaviour demonstrated by the complainant, none of the witness and none of the clinical notes admitted into evidence make any reference to sexualised behaviour of this or a similar kind. Counsel for the accused argued that the accused’s credit was bolstered by him being prepared to admit to these two other alleges incidents of a sexual kind and to having admitted his failure to document or report them. However, I do not accept this submission as, in my view, these two alleged events were inserted by the accused into his evidence in an attempt to support his exculpatory version of the events of 28 January 2019 by suggesting that this was not the first time that the complainant had acted out sexually towards him.

74. It follows from these findings that I do not accept any suggestion by the accused, which was implicit in parts of his evidence, that the complainant might have been trying to set him up and that she, therefore, had a motive to lie or manufacture false allegations against him. In accordance, therefore, with the direction I have previously given myself, I put aside any issue of a motive to lie and focus on whether the Crown has proved beyond reasonable doubt any of the charges.

75. In assessing the accused’s evidence, I have taken into account the fact that he is a person with no prior convictions and the evidence of his good character led from the witness, Mr Caldwell.

76. However, the evidence about the accused’s character is, of course, not a defence and, given the accused’s admission to having engaged in a sexual act with the complainant, the evidence certainly does not support the conclusion that he is "not the sort of person" to commit such an act. And, in relation to the second aspect in which evidence of good character can be used, in other words to support the accused’s credibility, I have given this as much weight as I can which, in the circumstances, is little. Given that I do not accept the accused’s evidence as to fundamental matters of the kind I have set out, I put aside his evidence and return to consider whether the Crown has proved beyond reasonable doubt any of the charges.

ELEMENTS OF THE CHARGES

77. The elements of the offences are agreed and they are set out in MFI 7, which I do not intend to read out in detail. However, in short, the elements of counts 1, 2, 3, 4 and 8 are the following: firstly, that the accused sexually touched the complainant, and I note that there is no dispute that any of the acts relied upon by the Crown, if they occurred, would amount to sexual touching; secondly, that the complainant had a cognitive impairment and there is no dispute as to this element; thirdly, that the accused knew the complainant had a cognitive impairment, and there is no dispute as to this element; and, fourthly, that the accused was responsible for the care of the complainant and in this regard there is no dispute that, by reason of his position as a nurse at Kaoriki House, the accused was "responsible for the care of" the complainant. There is no dispute that the Crown is not required to prove that the complainant did not consent to being sexually touched or to prove that the accused knew or believed that she did not so consent.

78. In relation to count 5, the elements the Crown must prove are as follows: firstly, that the accused carried out a sexual act towards the complainant and there is no dispute that the act alleged in relation to count 5, if it occurred, would amount to a sexual act; secondly, that the complainant had a cognitive impairment and this is not in dispute; thirdly, that the accused knew at the time of the sexual act that the complainant had a cognitive impairment and, again, this element is not in dispute. Fourthly, that the accused was responsible for the care of the complainant. As I have already noted, there is no dispute that, by reason of his position as a nurse at Kaoriki House, the accused was responsible for the case of the complainant, and there is no dispute that the Crown is not required to prove the lack of consent or any guilty mind of the accused in that regard.

79. For counts 6 and 7 the elements are as follows: firstly, that the accused had sexual intercourse with the complainant and I note that for count 6 the Crown relies upon penile/vaginal penetration and for count 7 upon oral penetration by the accused’s penis; secondly, that the complainant had a cognitive impairment, and this is not in dispute. Thirdly, that the accused knew at the time of the sexual intercourse that the complainant had a cognitive impairment and, again, this is not in dispute. Nor is there any dispute that the accused was a person responsible for the care of the complainant. And it is an agreed matter that there is no need under these charges for the Crown to prove that there was a lack of consent or any guilty mind of the accused with respect to the question of consent.

ANALYSIS

80. In summary, the only issue in relation to each of the charges is, in practical terms, whether the "sexual touching", "sexual act" or "sexual intercourse" alleged in the various counts has been proven beyond reasonable doubt to have occurred. As already noted, the Crown case relies in proof of the specific allegations on the evidence of the complainant. It is necessary then that I be satisfied beyond reasonable doubt of the essence of her evidence in relation to each or any of the allegations. This involves consideration of both her credibility and reliability. Having had the opportunity to observe the complainant giving evidence for a number of hours over two days, I formed the conclusion that, at that time, she was a logical, reasoned and quite articulate witness.

81. The complainant’s presentation as a witness was not at all consistent with what might have been expected, given the description of her brain and mental problems, which were described in other evidence. There was nothing about her demeanour, behaviour or her speech when giving evidence that caused me concern that she was intentionally being untruthful or deliberately seeking to embellish her evidence. In many ways her presentation as a witness was impressive, in that she was attentive to the questions and generally answered them in a clear and direct fashion and did not have any obvious tendency to add extraneous details or to be evasive.

82. She was also a witness who was prepared to acknowledge matters that might not put her in a good light. For example, she agreed that at times she experienced hallucinations, that most of the time her mental health was bad, that there were matters she had not mentioned to police, and that there were things that she could not recall. It is also true, I think, as the Crown submitted, that she did not appear to be a witness "hell-bent on throwing the accused under the bus at every opportunity". In her interview with the police, for example, she was complimentary about the accused’s physical appearance and corrected herself when she initially said at p 3 of MFI 4 that the accused told her to "shut your mouth", saying that he did not use those words but rather said, "Don’t tell anyone ‘cause you’ll get me in trouble." Also when asked in her evidence at trial how she got on with Paul, she said, "Good. He seemed like a nice man."

83. However, there are a number of other important pieces of objective evidence that I need to take into account and which raise questions as to the credibility and the reliability of the complainant’s evidence.

WARNING UNDER SECTION 165 EVIDENCE ACT

84. Given the matters to which I am about to refer, it is appropriate, in accordance with s 165 of the Evidence Act 1995, that I give myself a warning that the complainant’s evidence may be unreliable by reason of her mental health issues and, in particular, the fact that she was, at times, delusional and exhibited beliefs in matters such as demons and fairies and her belief that she was given ECT which were clearly imagined or incorrect. I warn myself of the need for caution in determining whether to accept the complainant’s evidence and as to the weight I attach to it.

85. First, there is the fact that the complainant had been diagnosed with SAD and PKAN, which is a rare degenerative disorder that affects the brain. PKAN is a condition which can involve cognitive impairment, including a person’s executive function, especially the ability to organise oneself and regulate emotions. However, and as neurologist, Dr Pepper, explained, the extent to which these problems will be present in a particular individual depends on the severity of the disease in that person. Also, and as Dr Pepper explained, it may be difficult to distinguish between the effects of SAD and PKAN, but those effects may include depression and psychosis, although psychosis is rarely associated with PKAN and is commonly associated with SAD and may include auditory and visual hallucinations.

86. Secondly, there is evidence that on occasions reasonably proximate to the alleged offences the complainant was exhibiting signs and symptoms consistent with a flare-up of a psychosis. On 31 December 2018 and 1 January 2019 she was noted to be responding to unseen stimuli and laughing and chatting to herself, although she denied hearing voices (see exhibit G). On 4 January and 5 January 2019 it was noted (see exhibit F) that she appeared to be relapsing into psychosis and responding to unseen stimuli and was delusional, speaking about fairies and spirits, although she denied hallucinations. Similar observations were made of her on 6 January 2019 where it was noted that the complainant continued to decompensate and was talking about angels and yelling loudly (see exhibit E).

87. On 13 January 2019 she remained psychotic with themes of witches, killing children, demons and angels, visual and auditory and tactile hallucinations although managing fairly well most of the time (see exhibit A). On 14 January 2019 notes were made again about auditory, visual and tactile hallucinations with themes of killing children, evil witches and evil people controlling her thoughts (see exhibit D). On 15 January she was again noted to be experiencing visual and auditory hallucinations with themes of distress regarding men manipulating her and reference to witches and angels (see exhibit C). And, on 28 January 2019, the complainant was noted to be distracted by "thoughts observed subjectively" although she denied auditory hallucinations. It was also noted that day that there had been a severe increase in her cigarette obsession, with the complainant commencing to stand at the door of the office up to 45 minutes before designated smoking times (see exhibit B).

88. The complainant was cross-examined about some of these matters and she agreed that, while at Kaoriki House her mental health had good periods and bad periods. She also agreed that, even when her mental health was good, she sometimes saw or heard fairies and angels. She denied, however, that she saw or heard demons or that she spoke about paedophiles or people hurting children. When her mental health was bad she would see and feel spirits, including spirit animals walking the floors. There is also the fact that the complainant remained resolute that, as asserted in her second police statement made about two weeks before the trial, she had been strapped down and given electroshock therapy at Kaoriki House over four to five days. The evidence of other witnesses is that this did not happen and I am satisfied that it is a delusional belief that was referred to by the complainant only relatively recently.

89. Another matter pointed to by counsel for the accused is that the complainant said she held a belief at one stage while in Kaoriki House that the accused might have had a hand in the death of her sister. The complainant explained, however, that she had not mentioned this to police as she came to the realisation that this could not be true, and at the time she had been thinking all sorts of thoughts. Nonetheless, it is an example of the disordered nature of her thinking at least at some points in time.

90. Counsel for the accused argued that, because of these and other matters, I could not be satisfied beyond reasonable doubt of any of the charges, fundamentally because the Crown case rises and falls on the evidence of the complainant, and there is a very possibility that she has either made up these allegations and/or they are a product of fantasy, delusion or hallucinations. He pointed to various other inconsistencies or problems in the complainant’s evidence. For example, she said the accused’s eyes were blue whereas they are brown, that she said she was pretty sure the bed in the spare room had sheets on it on 28 January, whereas the photos taken on 30 January showed no sheets, and also her evidence that she thought the accused had turned off the light in the spare room whereas, in cross-examination, she said it was probably not “on” in the first place.

84. Counsel for the accused described these as minor inconsistences, a description with which I generally agree, but they are, nonetheless, matters that I take into account in assessing the complainant’s evidence. Counsel for the accused argued also that if the accused was, indeed, giving the complainant extra cigarettes, it is likely that her weekly supply would have run out rather quickly and that this would be noticed by others. The complaint said, however, that, at times her cigarettes did not last the entire week even though they were meant to. I have had regard to this submission although, in light of the complainant’s answer, it does not, in my view, carry great persuasive weight.

85. There is also the fact that, as the accused had some control over all of the patients’ cigarettes, it would have been a simple matter to have borrowed from another packet or, indeed, purchased a packet himself with which to replenish supplies. The complainant was also under the firm belief that her finances were not being managed while she was at Kaoriki House, which is contradicted by Ms Duggan’s evidence. There are also the apparent inconsistencies in the complainant’s evidence about whether or not a lock had been on her bedroom door and her evidence that, while at Kaoriki House, she did not wear earrings, which she appears to have been wearing on the body worn video with the police on 30 January 2019.

86. The accused argues also that the complainant’s evidence that the accused stripped completely naked in the spare room is improbable, given her evidence that she saw no markings such as tattoos or jewellery on his body. This is contrary to the unchallenged evidence of the accused who said he has a large tattoo on his left arm and a pierced left nipple. I have had regard to this submission but the significance of the complainant’s failure to notice or recall matter of this kind is not, in my opinion great, given that the events apparently took place in a darkened room. The more significant thing, in my view, is the complainant’s assertion in the body-worn video recording that she thought it was strange that the accused had taken off all of his clothes given the risk that someone might walk in. This recollection or thought has, to my mind, the "ring of truth" about it.

87. Another inconsistency pointed to by the accused is that, when the complainant was describing her evidence of the first alleged offence, in other words count 1, she said that the accused was fondling himself at the same time as he was fondling her breasts. It was submitted that this was a “recent invention” and had not previously been alleged. I have had regard to this apparent difference in the complainant’s account but, in accordance with s 293A of the Criminal Procedure Act, I direct myself in relation to this and any other differences in the complainant’s account that people may not remember all the details of a sexual offence or may not describe such an offence the same way each time.

88. I direct myself that it is common for there to be such differences and that trauma may affect people differently, including in how they recall events. Both truthful and untruthful accounts of a sexual offence may contain differences and it is a matter for me to decide whether or not any differences are important in assessing the complainant’s truthfulness and reliability. Another suggested difference is between the version reported by the complainant’s daughter, Kirsty, who recalls the complainant saying that the accused had "jerked off on my breasts", which is different to what the complainant reported in the body worn video interview, which is exhibit 4 and, furthermore, that, according to Ms Clarke, her mother told her in the phone call of 28 January that the accused had just been in her room again and had assaulted her and had just left.

89. The complainant’s evidence also showed some inconsistency as to the state of her own clothing. In this regard there were some differences between what the complainant described in exhibit 4, being the body-worn video interview, and also in what she said in evidence. I have taken into account these differences in assessing the complainant’s evidence and I accept that there was some uncertainty as to exactly what she was wearing, particularly on her lower half. However, the essence of the complainant’s evidence remained fairly consistent as to her breasts having been exposed and her underpants having been removed or pulled down.

90. There is also the fact that, on the complainant’s own evidence, she was hearing the voice of a witch immediately after the incident in the spare room and that it was the witch who told her to collect the semen using her shirt. As counsel for the accused submitted, this suggests that the complainant was manifesting some signs of mental illness at the time of this incident. It does, as the accused argued, tend to contradict to some degree the evidence of Ms Duggan and some other witnesses to the effect that the complainant was generally fairly well around this time.

91. Another inconsistency with regard to the complainant’s evidence is that she said she believed she made no calls on the night of 28 January whereas her daughter gave clear evidence of her mother having called her more than once that night. Also, the complainant said that she told Crystal Wells of MIDSS what was happening with the accused "a couple of days before" 30 January, whereas the evidence of Ms Wells was that she reported the matter as soon as she was told, which is on the morning of 30 January 2019. These differences or inconsistencies were argued by the accused to support a conclusion that the complainant is unreliable as a witness.

92. A further example of this suggested unreliability is the complainant’s evidence of other earlier incidents where she says the accused would pull up her top and look at and/or touch her breasts in the medicine or clinic room. The complainant said this happened a number of times and that the accused locked the door. It was argued on behalf of the accused that this was improbable given the evidence of other witnesses to the effect that this room was quite busy at times.

93. To my mind, it is not at all implausible that the accused could have, while in the clinic room, lifted the complainant’s top and looked at or touched her breasts without others being present and noticing such an event. While there is evidence that the clinic room would sometimes be busy, Kaoriki House was a small facility with a maximum of only 12 patients and sometimes apparently only two nurses on duty. It is likely there would have been quiet times when few people were in or around the clinic room when events such as the complainant alleges could have taken place. I do however accept that the suggestion that the accused locked the door of that room while he and the complainant were inside is improbable, given the suspicion that this might attract and I also have taken this aspect into account in assessing the complainant’s evidence.

94. In relation to the complainant’s evidence concerning counts 2 and 3 where she says that the accused fondled her breasts and vagina in the courtyard, it was submitted that I would not accept that the accused would be so brazen as to assault the complainant in the open where anyone could have stumbled onto the situation. I note, however, that the complainant’s evidence was that the accused had positioned himself so that he could see if anyone was approaching. The accused argued that this was an instance of the complainant tailoring her evidence so as to make it more credible. The persuasive force of the submission about "brazen behaviour", however, is, to my mind, limited by reason of the accused’s own admission that on 28 January 2019 he was prepared, while other staff and patients were milling around, to accompany a female patient to a room within the facility, close the door and engage in a sexual act with her.

95. I also take into account the argument by counsel for the accused that the accused’s version of a quick encounter of one or two minutes on 28 January where he ejaculated on the complainant’s breasts is far more believable than the complainant’s version in which she said that the event lasted up to 15 minutes. It was submitted that the complainant’s version was unlikely given the evidence that other patients and staff were milling around while supper was being served.

96. I turn then to consider the events of 28 January 2019, those being the subject of counts 6, 7 and 8. The fact that a sperm cell or cells were found on the complainant’s breast area and on her top and that DNA samples from those areas were consistent with the accused’s DNA is a significant piece of corroborative evidence of the complainant’s allegation about that event.

97. There are a number of other matters that provide support for the complainant’s evidence about what happened during that event. First, there is the fact that she had the foresight, albeit after hearing a voice she described as that of a witch, to use her top to collect the semen. This is more consistent, in my view, with an unwanted assault rather than an encounter which the complainant herself invited from the accused.

98. Second, there is the fact that the complainant made almost immediate complaint to her daughter by the two phone calls that Ms Clarke received. In one of those calls in which the complainant was crying and sounded scared, she told Kirsty that the accused’s bodily fluids were still on her, which, indeed, they were. As the Crown submitted, the content of this call is not consistent with a psychotic flare-up. There was no talk of witches or fairies or supernatural matters which were the complainant’s usual themes.

99. Third, there is the fact that the day after the incident the complainant had the clarity of thought to follow up on the idea of having her top analysed by posting it to her daughter, having placed a mark with lipstick as to where the DNA was located. The fact that the complainant had the intelligence and foresight to do this, and also to disguise her real purpose by using the shirt as padding to protect a glass bell, saying it was a gift for her daughter, is another matter which, in my view, demonstrates considerable good sense and clear thinking by the complainant at that time.

100. Fourth, there are the entries in the mental health review form, exhibit B, which were made on either 28 or 29 January 2019, which note that, although the complainant was "distracted by thoughts", she denied auditory hallucinations and expressed frustration at being here and not at her new home. These entries can be contrasted with some observations made in other parts of her clinical notes, exhibits A, C, D, E, F and G, which demonstrate the kind of behaviours shown by the complainant when she had a "flare-up". The exhibit B review form also notes a "severe increase in cigarette obsession", which provides some additional support for the complainant’s evidence that the accused would supply her with extra cigarettes to buy her silence.

101. Fifth, there is the evidence that, on the morning of 30 January 2019, the complainant was, according to social worker Ms Duggan, acting restless and spoke to her in private, saying that "something huge was going to go down this afternoon". Theriwas also the evidence of Ms Wells that on that same morning the complainant was very upset and disclosed the matters which led to Ms Wells reporting the matter to her supervisor.

102. Sixth, there is Ms Duggan’s evidence that on the morning of 30 January 2019 the complainant asked her whether she would definitely still be going to the house at Thornton and mentioned that she thought she might be sent to another hospital. The complainant in her police interview on 30 January 2019 made a similar comment (see p 12 of MFI 4) that the accused had told her, "Don’t say anything ‘cause I’ll get in trouble and you’ll lose your house." The fact that the complainant mentioned these concerns to Ms Duggan and to police is consistent with the complainant’s evidence that after the incident on 28 January the accused said that, if she told anyone what had happened, she would lose her house and be moved to another hospital.

103. Seventh, there is the contents of the video recording, exhibit 4, in which the complainant was interviewed by police. In that interview the complainant does not present as deluded or thought disordered. On the contrary, the recording shows her to be rather lucid and logical. An example of this is her statement at the bottom of p 3 of MFI 4 of "thinking that people wouldn’t believe me, think I’m delusional. I used the top to wipe his ejaculation up for DNA." Another example is her explanation at p 5 that she wrapped the shirt with the semen on it around a glass bell so that no-one would ask her what the shirt was for and that she placed a line of lipstick on the shirt to mark where the DNA was.

104. Eighth, there are the bruises found by the sexual assault nurse depicted in exhibit 6. The unusual location of these bruises and their configuration are consistent with what the complainant described in the exhibit 4 video where she said that the accused "started using his penis around my breast and putting my breasts together…to actually make love to my breasts". In making this observation I have not overlooked that the sexual assault nurse noted "Darlene stated no pain during or after assault" and that the nurse also recorded no bruises to the arms, whereas the complainant thought the nurse had seen and photographed bruises on her arms. It seems to me, however, that the complainant was simply mistaken as to the exact location of the bruises observed by the nurse and, in my opinion, this is a minor discrepancy, given that bruising was, in fact, recorded by the nurse in or near an area of the complainant’s body where she says she was assaulted. The relatively minor bruising detected by Ms McGowan, the nurse, close to the sides of the complainant’s breasts and depicted on exhibit 6 is, as I have said, consistent with an act involving the accused squeezing the complainant’s breasts together while rubbing his penis between them.

105. Ninth, and another matter that provides some general support for the complainant’s version, is the evidence that the accused did, at times, give the complainant extra cigarettes. The accused agreed in evidence that there were two such occasions, one of which was observed by the social worker, Ms Duggan. Ms Duggan gave evidence that allowing patients to smoke was a contentious issue. This is confirmed by the fact that a couple of weeks before 30 January 2019 Ms Duggan challenged the accused when she saw him give extra cigarettes to the complainant. Ms Duggan said this was "most unusual" because "I always found Paul to want to be consistent with the patients around messaging and the rules". She said that when she queried him saying, " What are you doing giving her extra cigarettes?" he said, "I just want to have a settled shift." Ms Duggan also said that some of the nurses were saying that the complainant was starting to argue with them and requesting more cigarettes and that this was "so unusual because Darlene had really settled into the hospital routine". This observation is supported by the mental health review notes of 28/29 January 2019, which are exhibit B, which refer to "severe increase in cigarette obsession. Commenced standing at door of office for up to 45 minutes pre designated times".

106. There is no doubt on the evidence that the accused was aware that cigarettes were an attractive form of "currency" for the complainant, which provides supportive context for her allegations that he would give her extra cigarettes as a form of hush money. Related to this is the evidence of Ms Wells who says that on the morning of 30 January, when describing what the accused had been doing to her, the complainant said that "on one of these occasions she had lost a lighter in the room". This is consistent with the evidence given by the complainant in cross-examination where she said that, after the incident in the spare room on 28 January, the accused came to her room with a lighter and cigarettes because she had said to him, "I left my lighter in the room, I need a lighter", and that the lighter she was given by the accused had the name of another, "Allan", on it.

107. Also, on 30 January when Detective Hoffman inspected the spare room, he found a blue lighter with the name Allan Brown on it, which was located on the bed in that room, which is precisely where the complainant says that assaults happened.

FINDINGS IN RELATION TO THE INDICTMENT

115. Having regard to all of the evidence and the directions and analysis I have set out, I am satisfied beyond reasonable doubt as to the essence of the complainant’s version in relation to count 8. I reject the accused’s version about that allegation. I am satisfied beyond reasonable doubt that the accused sexually touched the complainant by rubbing his penis between her breasts until he ejaculated. I find him guilty and I convict him of that offence.

116. As I have already stated, I am satisfied that the accused had a sexual interest in the complainant and I am further satisfied that his commission of the offence alleged in count 8 occurred as a result of that sexual interest.

117. Counts 6 and 7 are alleged to be part of the same incident as count 8 and I have already accepted beyond reasonable doubt the complainant’s version of what is alleged in count 8. However, I must give separate consideration to the question of whether I am satisfied beyond reasonable doubt of the essence of what is alleged in counts 6 and 7, which each involve alleged acts of sexual penetration. In contrast to count 8, there is no forensic evidence which supports counts 6 and 7, which rely solely on the credibility and reliability of the complainant and, while I am satisfied beyond reasonable doubt about the complainant’s evidence concerning count 8, the allegations in counts 6 and 7 are of a different nature to that in count 8.

118. Also, there is the evidence of the accused to the effect that he would not have penetrated the complainant’s vagina or mouth because she was "Hep B" positive and that he would not have taken the risk of being infected with that virus. It is noteworthy, I think, in assessing the weight to be given to this suggestion, that it was never put to the complainant or to any other witness that the complainant had such an infection. It is also noteworthy that the accused said nothing about the complainant having any kind of hepatitis in his evidence in chief. It was not until the Crown was cross-examining him about the allegations in counts 6 and 7 that he for the first time volunteered the suggestion that he would not have put his penis into her vagina or mouth because he believe she had Hepatitis B.

119. Subsequently, however, exhibit H was tendered and admitted as evidence for the accused, which is a clinical note made on 12 March 2018 that the complainant was "Hep C pos". This is relied on by the accused as providing some foundation for his claimed belief that the complainant had Hepatitis B.

120. Although no expert evidence was led about the difference between Hepatitis B and Hepatitis C, the parties accepted that it was appropriate for me to take judicial notice under s 144 of the Evidence Act of the following summaries, which are taken from facts sheets on the website of the New South Wales Department of Public Health.

121. Firstly, "Hepatitis B can be transmitted during birth, during sex and through blood to blood contact." Secondly, "Hepatitis C is a viral infection that affects the liver. It is transmitted through blood to blood contact." As I have just noted, there is a significant difference between Hepatitis B and Hepatitis C in the sense that Hepatitis C, which the complainant may have had, is a disease that is usually transmitted through blood to blood contact whereas Hepatitis B, which the accused claims he thought the complainant had, can be transmitted also during sexual contact. However, the relevant question is not whether the complainant had one or other of those viruses. The relevant question is the state of mind of the accused.

115. If he, in fact, had the belief that the complainant had "Hep B" then that adds some weight to his assertion under cross-examination that he would not have put his penis into the complainant’s vagina or mouth because of the risk of infection. Exhibit 8 contradicts the accused to some extent by suggesting that the complainant may have had Hepatitis C and not the sexually transmissible Hepatitis B. However, exhibit H does provide some support for the accused’s asserted belief that the complainant had a potentially transmissible disease.

116. In relation to counts 6 and 7 there is also the fact that there is no forensic evidence in the form of sperm or male DNA or physical trauma to corroborate the allegations of vaginal and oral penetration. In addition, there is the fact that the evidence of the complainant is somewhat less consistent and clear in relation to the allegations of penile/vaginal and oral penetration. In the body worn video recording, exhibit 4, the complainant said at p 3 that the accused "pulled my pants down and began to have sex with me" and at p 11 "He got on top of me and started penetrating me". To my mind, the words "began" and "started" in relation to vaginal penetration are more equivocal than the complainant’s description of the incident where the accused was "putting my breasts together to actually make love to my breasts and that’s when he ejaculated over my breasts".

117. Furthermore, in relation to the allegation of fellatio that is the subject of count 7, there is the fact that the complainant made no mention of this in the born-worn video recording. In relation to this omission, the complainant said in her evidence that she did not mention it because she was ashamed. I have given close consideration to this evidence and to the complainant’s evidence as a whole. Having done so, and while remaining satisfied beyond reasonable doubt of the complainant’s version in relation to count 8, I am left with a reasonable doubt in relation to the penetration alleged in both counts 6 and 7.

118. That doubt arises from a combination of factors, being the more equivocal nature of the complainant’s initial report to police about these matters, along with the evidence given by the accused that he would not have penetrated the complainant due to his belief that she had a Hepatitis virus. Nonetheless, I am satisfied that it is very highly probable that the incident on 28 January 2019 occurred in the manner that the complainant alleges and that the accused did penetrate her vagina and mouth before ejaculating on her breasts but, given the need for me to assess and apply the criminal standard of proof to each allegation, the matters to which I have referred leave me with a reasonable doubt as to whether the penetrations alleged in counts 6 and 7 occurred. I, therefore, find the accused not guilty in relation to counts 6 and 7.

119. I turn finally then to consider counts 1 to 5 which relate to what have been called incidents 1, 2 and 3. In considering the remaining counts I have taken into account the fact that I have acquitted the accused on counts 6 and 7 given the existence of a reasonable doubt on those counts. In other words, I have applied the directions earlier set out relating to the principles in R v Markuleski.

120. Count 1 is alleged to have occurred in an external courtyard on Christmas Eve when the accused is said to have touched the complainant’s breasts. It is alleged by the complainant that this occurred in an alcove, which she referred to as the "hidey-hole". The agreed facts document, exhibit 7, confirms that the accused was on duty that day. Also, the accused agreed in evidence that there was a place in the courtyard that could be described as a “hidey-hole”, although he disputed the extent to which it was actually private, and suggested that staff simply turned a blind eye when patients used it, for example, to have an illicit cigarette. Nonetheless, the existence of such a location provides some support for the complainant’s version of this event. In addition, there is the concession by the accused that on Christmas Eve he did give the complainant an extra cigarette, and that this occurred after her breasts had been exposed, although, on the accused’s version, which I do not accept, it was the complainant herself who exposed her breasts.

121. Also, as I have already observed, I am satisfied that the accused had a sexual interest in the complainant, which he acted on, in committing the offence set out in count 8. I have had regard to this sexual interest in considering count 1, along with all of the evidence relating to this count. Having done so, I am satisfied beyond reasonable doubt of the complainant’s evidence in relation to the allegation in count 1, in other words, that the accused sexually touched the complainant’s breasts and I find this offence proved beyond reasonable doubt.

122. Counts 2 and 3 are said to have occurred in the same open courtyard sometime between 24 December 2018 and 27 January 2019 and I note that the agreed facts document, exhibit 7, shows that, apart from a two week holiday period from 27 December 2018 to 13 January 2019, the accused was on duty on numerous days within the period charged in the indictment. The complainant says that on this occasion the accused fondled her breasts and "fingered" her vagina. I have had regard to all of the evidence relating to this allegation and I have also taken into account my earlier conclusion that the accused had a sexual interest in the complainant which he acted on. Having done so, I am satisfied beyond reasonable doubt of the complainant’s evidence in relation to these two counts and I find these offences proved beyond reasonable doubt.

123. Counts 4 and 5 involve respectively, an allegation of sexual touching and an allegation of committing a sexual act toward the complainant, which is said to have taken place in the tribunal room, somewhere between 24 December 2018 and 27 January 2019. As I have already observed, there were numerous days within this period when the accused was on duty at Kaoriki House. On this occasion the complainant says that the accused took her to the tribunal room and that once there, he fondled her breasts, which is count 4, and masturbated his penis, which is count 5.

124. I have considered all of the evidence and arguments put to me in relation to these counts. I have also taken into account my conclusion that the accused had a sexual interest in the complainant which he acted on. I am satisfied beyond reasonable doubt of the complainant’s evidence in relation to these two counts and I find them proved beyond reasonable doubt.

125. In conclusion, I find counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt and I convict the accused of those matters.

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Amendments

03 February 2022 - Minor typo.

Decision last updated: 03 February 2022