R v Garay (No 3)
[2021] ACTSC 215
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Garay (No 3) |
Citation: | [2021] ACTSC 215 |
Hearing Dates: | 7-9, 11, 15-18, and 21-25 June 2021 |
Submissions Last Received: | 8 July 2021 |
DecisionDate: | 31 August 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [838] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – historic child sexual offences – act of indecency on young person – sexual intercourse with a young person – temporally confined dates of some allegations – motive to lie – no case submission |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 62B, 66B, 92E, 92K Crimes Act 1958 (Vic) ss 47A, 47(2) Supreme Court Act 1933 (ACT) ss 68B, 68C |
Cases Cited: | Binns v R [2017] NSWCCA 280 De Silva v The Queen [2019] HCA 48; 375 ALR 1 Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 |
Parties: | The Queen (Crown) John Paul Garay (Accused) |
Representation: | Counsel S Jerome (Crown) M Jones (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 117 of 2020 SCC 118 of 2020 |
| CONTENTS | |
| Introduction | 4 |
| General Directions | 4 |
| Counts and Further Specific Directions | 5 |
| Elements of the offences | 7 |
| The Prosecution Case | 8 |
| The Accused | 10 |
| Evidence / Summary of Evidence | 10 |
| Applications and objections | 43 |
| Tendency Evidence | 81 |
| Prosecution closing submissions | 89 |
| Closing submissions for the accused | 113 |
| Consideration: Directions | 143 |
| Assessment of the evidence of the complainant | |
| Assessment of the evidence of other prosecution witnesses | |
| Assessment of the evidence of the Informant | |
| Accused’s Evidence | |
| Demeanour | |
| Complaint evidence | |
| Tendency evidence | |
| Motive to lie | |
| Evidence in relation to timing | |
| Section 66B Crimes Act | |
| Consideration: Conclusion | 153 |
| Orders | 158 |
LOUKAS-KARLSSON J:
Introduction
This is a judge-alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) after John Garay (the accused) signed an election to be tried by judge alone.[1]
[1] 15 February 2021.
The accused is charged with sixteen counts of committing an act of indecency upon the complainant, being a person of or above the age of 10 years but under the age of 16 years in contravention of s 92K(2) of the Crimes Act 1900 (ACT) (Crimes Act) on an Indictment dated 26 November 2020 (Counts 1 – 13, 15, 17, and 18 on the Indictment).
The accused is charged with a further two counts of sexual intercourse with the complainant, being a person of or above the age of 10 years but under the age of 16 years in contravention of s 92E(2) of the Crimes Act on the Indictment dated 26 November 2020 (Counts 14 and 16).
All eighteen counts are particularised on the Indictment to have occurred on a date unknown between 28 January 1986 and 5 December 1988 at Canberra.
The accused was arraigned on 7 June 2021 and pleaded not guilty to the offences.
During the course of the trial and upon the application of the accused, I directed that an acquittal be entered in relation to Count 7 on the Indictment. This is discussed further below.
General Directions
Section 68C(2) of the Supreme Court Act 1933 (ACT) requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a Territory law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52]. I adopt the following directions.[2]
Onus and Standard of Proof
[2] See R v Mulcahy [2010] ACTSC 98 (Mulcahy), R v DM [2010] ACTSC 137, R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 [6]-[18]; R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)).
A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
The prosecution bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the accused has committed a criminal offence, therefore the prosecution must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
The level or standard of proof required in a criminal trial is proof beyond reasonable
doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is
guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable
doubt of his guilt, then he remains presumed to be innocent and the appropriate
verdict is not guilty.
Judge of Facts and Law
In addition to the fundamental rules which govern a criminal trial, the following rules have been developed. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view the evidence clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
General Directions on Witnesses
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered
logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly
or to reject a witness wholly. I can accept everything that a witness has said if I
consider all of it worthy of acceptance, or I can reject everything that a witness has said
if I consider none of it worthy of acceptance, or I can accept that part of what a witness
said that I consider worthy of acceptance and reject the rest of what that witness said
as I consider it unworthy of acceptance.
I adopt the foregoing directions in the present case and discuss further specific directions.
Counts and Further Specific Directions
To prove a charge beyond reasonable doubt, the prosecution must prove each legal element of the relevant offence beyond reasonable doubt. The prosecution need not prove each disputed fact beyond reasonable doubt (unless proof of that fact is essential to proof of a legal element).
In total, there are fifteen allegations of sexual abuse particularised by the complainant.
Fifteen counts of Act of Indecency with a young person pursuant to s 92K(2) Crimes Act 1900 (Counts 1-6, 8-13, 15, 17, and 18). There were 16 counts prior to the accused’s no case application, referred to at [6].
All the acts of indecency of a young person (except for count 13), involve the same allegation that the accused’s hand touched the complainant’s penis, skin on skin until ejaculation. Count 13 alleged that the accused touched the accused’s penis, skin on skin without ejaculation.
Counts 14 and 16 allege sexual intercourse with a young person pursuant to s 92E of the Crimes Act. The allegations involve penile penetration of the complainant’s anus.
Counts 1 to 6, 8 to 12, and Count 18 are of 12 different occasions where the same type of offending is alleged – the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation.
Directions concerning the complainant
In this trial, the complainant’s evidence was given by an audio-visually recorded police interview and by audio-visual link from a room that was remote from a courtroom and that was recorded. In relation to the pre-trial evidence, a support person, a support dog, and intermediary were present. These are usual practice. The Court should draw no inference adverse to the accused and accord the complainant’s evidence no greater or lesser weight because these practices were followed: see ss 4AF, 64, 101 Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).
As the complainant was the critical prosecution witness and the only prosecution witness capable of giving direct evidence of the central events in question, the Court must examine his evidence carefully before deciding whether the Court will accept the key aspects of his evidence beyond reasonable doubt: R v Murray (1987) 11 NSWLR 12 (Murray) at [19].
Although each charge must be considered separately, the verdicts must be consistent. Consequently, if the Court doubts the evidence of the complainant (the critical prosecution witness) on one charge, the Court must consider whether that doubt causes doubt about his evidence on other charges: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski); Sgardelis v R [2006] NSWCCA 338.
Inferences
I may, in my role as a judge of the facts, draw inferences from the direct evidence.
Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
In a criminal trial, 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.
In the context of a criminal trial I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
Elements of the offences
Sections 92K and 92E of the Crimes Act have been repealed since the offences were alleged to have occurred. As at 28 November 1985 those sections relevantly provided as follows:
Section 92K Crimes Act 1900
Acts of indecency with young persons
(1) A person who commits an act of upon, or in the presence of, another person who is under the age of 10 years in guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2) A person who commits an act of indecency upon, or in the presence of, another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(3) It is a defence to a prosecution for an offence under sub-section (2) if the defendant establishes that –
(a) he or she believed on reasonable grounds that the person upon whom the offence is alleged to have been committed was of or above the age of 16 years; or
(b) at the time of the alleged offence, the defendant was not more than 2 years older than the person upon whom the offence is alleged to have been committed, and that that person consented to the committing of the act of indecency.
Section 92E Crimes Act 1900
Sexual intercourse with young person
(1) A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years.
(2) A person who engages in sexual intercourse with another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3) It is a defence to a prosecution for an offence under sub-section (2) if the defendant establishes that –
(a) he or she believed on reasonable grounds that the person upon whom the offence is alleged to have been committed was of or above the age of 16 years; or
(b) at the time of the alleged offence, the defendant was not more than 2 years older than the person upon whom the offence is alleged to have been committed, and that that person consented to the sexual intercourse.
In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
The elements of an act of indecency with a young person are:
· The accused commits an act;
· The act is indecent according to the standards of morality and decency held by ordinary members of the community;
· The act is committed on, or in the presence of, a young person;
· The young person is 10 years of age or over, and under 16 years of age.
The elements of sexual intercourse with a young person are:
· The accused engages in sexual intercourse with a young person;
· The young person is 10 years of age or over, and under 16 years of age.
Dates in charges are not material unless a date is “an essential part of the alleged offence”: WGC v The Queen [2007] HCA 58; 233 CLR 66 (WGC) at [155]-[157]:
It is undoubtedly good practice to frame a count in an information with "all such specificity as to time" as circumstances permit so as to clearly identify for the accused the charges with which he or she needs to deal.
However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence". The terms of s 49 were consistent with the general rule.
Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material.
The Prosecution Case
Broadly, the prosecution case was that the accused committed sixteen acts of indecency and two acts of sexual intercourse without consent upon the accused over the almost three-year period between 28 January 1986 and 5 December 1988. As mentioned above, count 7 was the subject of a successful no case to answer application. Each act was alleged to have occurred during, or following, particular events, which were described by the prosecution as set out in the table below.
| Count | Charge Description | Particulars |
| 1 | “Kiss of the Spider Woman” Movie | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 2 | Cousin Ms SD’s 21st Birthday Party | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 3 | Pancake Restaurant | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 4 | “Talking Heads” Movie | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 5 | Accused fought with Ms LM | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 6 | Thredbo Ski Day Trip 1 | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 7 | Thredbo Ski Day Trip 2 No case to answer on count 7 | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 8 | Spa Visit | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 9 | Black Mountain | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 10 | “They Call Me Bruce” Movie | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 11 | Complainant’s Surprise Birthday Party | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 12 | Night After the Complainant’s Surprise Birthday Party | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 13 | Spare Room and Asian Movie | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin. |
| 14 | Spare Room and Asian Movie | The prosecution alleged that the accused penetrated the complainant’s anus with the accused’s penis. |
| 15 | Spare Room and Asian Movie | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 16 | “Hot Dog the Movie” | The prosecution alleged that the accused penetrated the complainant’s anus with the accused’s penis. |
| 17 | “Hot Dog the Movie” | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
| 18 | Attempted Wake Up Time | The prosecution alleged that the accused’s hand touched the complainant’s penis, skin on skin, until ejaculation. |
The accused lived at three residential addresses over the period of the alleged offending. These locations were with his parents at Flowerdale Road and Webster Road in Liverpool, NSW, and at his own address at Illingworth Street in Wanniassa, ACT. It is at the ACT address where each of the charged offences are alleged to have occurred.
The Accused
The accused denied the complainant’s evidence regarding the conduct constituting the offences.
The accused accepted that some of the events and activities detailed in the complainant’s evidence occurred, or may have occurred. In particular, it was accepted by the accused that the visit to the pancake restaurant,[3] the fight with Ms LM,[4] attending the “Talking Heads” movie,[5] and the surprise birthday party occurred or were likely to have occurred.[6]
[3] T604.28-605.5; T723.44-46.
[4] T605.28-36.
[5] T605.7-26.
[6] T575.40-576.11; T654.6-25.
However, the accused denied that some of the events described by the complainant in his evidence could possibly have occurred, for example, the accused denied that the model train set existed during the relevant period as recalled by the complainant and denied that the related incident in the accused’s garage occurred or could have occurred.
Evidence / Summary of Evidence
Evidence in Chief Interview of the Complainant
Police conducted an evidence in chief interview (EICI) with the complainant on 8 March 2018. An audio-visual recording of the EICI was viewed in its entirety during the course of the trial and formed Exhibit 3. Part 1 of the EICI was conducted between 9:07am and 12:08pm on 8 March 2018. Part 2 of the EICI was conducted between 12:34pm and 2:28pm on 8 March 2018. A transcript of the EICI was marked for identification.
The complainant began by recounting that the accused had been a friend of his family since he was born. An association has existed in some form between the complainant and the accused since that time. The complainant’s uncle and the accused were in the same year at school and had a strong friendship. The accused and the complainant’s uncle at some point invested in two properties together at Flowerdale Road in Liverpool, and in Enmore, NSW.[7]
[7] EICI p5.
The complainant recalled that as a child of 6 to 8 years of age he would on occasion spend time at the accused’s home. He would either going there himself, or the accused would come to pick him up and bring him there.
The complainant recalled that he would play computer games at the accused’s home, and that the accused had a dark room for developing photographs.[8] The complainant provided a recollection of the interior layout of the accused’s home at Flowerdale Road as it was when he was a child.[9] The complainant recalled that the accused later moved to an address at Webster Road in Liverpool where the accused lived with his parents for a time, and provided a recollection of the details of this address.[10] The complainant detailed the allegations of the uncharged indecent assaults at these two addresses which form part of the prosecution’s tendency allegations.
[8] EICI p6-7.
[9] EICI p7-9.
[10] EICI p12-13.
Throughout the course of the EICI, the complainant recalled the particular events that he believed he could directly associate with particular assaults. These events were linked to movies or significant occasions which the complainant believed he could recall in sufficient detail.
The complainant recalled that the accused later moved to a home in the ACT, and that the complainant began visiting this home two or three times per year during school holiday periods, for at least one week.[11] The complainant stated that on every night that he spent at the accused’s Canberra address, he would sleep with the accused in the accused’s bed, and that with the exception of one occasion, that the accused would sexually assault him.[12] The complainant also recalled details relating to the layout and contents of the accused’s home, particularly where items such as the television, Beta cassettes, and other electronic video and audio equipment were located throughout the house.[13]
[11] EICI p18.
[12] EICI p18.
[13] EICI p22-27; 52-53.
The complainant recalled that the accused would have a similar modus operandi on the occasion of each assault. For example, the complainant recalled that in the evening after the accused had taken him to see the movie “Kiss of The Spider Woman” both the complainant and the accused were in the accused’s bed. The complainant recalled sleeping on the left side of the bed, and the accused on the right-hand side. The complainant recalls that the accused reached around him and removed the complainant’s penis from the opening in the front of his pyjama pants, would play with it until it became erect, and would masturbate the complainant until ejaculation. The complainant recalls that the accused would use something wet, which the complainant suspects may have been saliva to lubricate his penis. The complainant recalls that no ejaculate was produced following ejaculation on any of the occasions alleged due to his development and age at the time.[14]
[14] EICI p32-33; 75.
On the occasion which involved a surprise birthday party for the complainant at the accused’s home, the complainant recalls catching the train to Canberra, being picked up from the train station by the accused, and being driven to the accused’s home.[15] The complainant recalled that he would travel to Canberra either by train, or by car by way of the Hume highway, with one exception, an occasion where the accused took them by car on a detour via the coast near Batemans Bay, so that the accused could visit a specialty store which sold parts for model train sets.[16]
[15] EICI p66.
[16] EICI p92-93.
The complainant provided his recollection of events relating to additional events, after which he recalled the accused either masturbating him, or on two occasions, engaging in sexual intercourse by using his penis to penetrate the complainant’s anus through his pyjama bottoms as they viewed a movie together in the accused’s home. These incidents included the “Talking Heads” Movie Incident,[17] the two Thredbo Ski Trip Incidents,[18] the Spare Room / Train Set and Angry John Incident,[19] the “Hot Dog the Movie” Incident,[20] the Asian Movie Incident,[21] the Attempted Wake-up Incident,[22] the “They Call Me Bruce” Movie Incident,[23] the Fight with Ms LM Incident,[24] the Spa Incident,[25] the Black Mountain Incident,[26] Ms SD’s 21st Incident,[27] and the Pancake Restaurant Incident.[28]
[17] EICI p68.
[18] EICI p72.
[19] EICI p83-84.
[20] EICI p86-87.
[21] EICI p85.
[22] EICI p89-91.
[23] EICI p94.
[24] EICI p98-99.
[25] EICI p107-108.
[26] EICI p108-109.
[27] EICI p110-115.
[28] EICI p116-117.
The complainant was in some cases uncertain of the temporal relationship between certain events or incidents. For example, the “Hot Dog the Movie” and “Spare Room and Asian Movie” events were said to have occurred during the same visit to the accused’s home, however the complainant was unsure whether this visit was before or after his cousin’s 21st birthday.[29] In contrast, the complainant was certain that the “They Call Me Bruce” movie incident occurred prior to the “Hot Dog the Movie”.[30]
[29] EICI p89-90.
[30] EICI p95.
The complainant also recalled a man named Paul, who was living with the accused during some of the complainant’s visits to Canberra, who would leave and stay elsewhere whenever the complainant would stay.[31]
[31] EICI p101-103.
Additionally, the complainant recalled prior occasions when he had complained to or confided with others about the accused’s behaviour. The complainant recalled that the first time he spoke about the accused’s behaviour was when he was between thirteen or fourteen years of age while on a camping trip with Mr HL.[32] The second complaint was made to the complainant’s wife a number of years later.[33] The third occasion of complaint recalled by the complainant was to his mother, four or five years prior to the EICI, when she was temporarily residing with him while recovering from a stroke.[34]
Evidence of the Complainant at Trial
[32] EICI p122.
[33] EICI p125.
[34] EICI p126.
The complainant gave evidence during the course of a pre-trial evidence hearing which took place on 15 October, 22 October, and 23 October 2020. The audio-visual recording of this evidence was played at the trial and formed Exhibit 4 in the proceedings.
Complainant’s Evidence in Chief
The complainant was born in December 1973 and began Kindergarten in 1979. He recalled attending St Mary’s Primary School in Liverpool, NSW until Year 4 and then Patrician Brothers for Years 5 and 6. The complainant began Year 7 at Mt Carmel High School, transferring to Liverpool Boys Highschool after about half of that year, and remaining there until he completed his schooling after completing Year 10.[35] The complainant affirmed that he has known the accused for his entire life, considering him to be almost part of the family. The most recent time he had seen the accused was in 2017 at a relative’s funeral.
[35] Pre-trial evidence T39-40.
The complainant identified himself and others in a number of photographs which were marked by the complainant and later tendered at the trial proper. Those photos included the complainant, at various ages, photographs of the accused, the complainant’s uncle, sister, cousin ‘S’, cousin ‘M’, and other items such as a model train set belonging to the accused.[36]
Complainant’s Cross-examination
[36] Pre-trial evidence T49-59.
The complainant stated that he was “pretty sure” that all of the indecent assaults and the abuse which he alleges against the accused occurred prior to his commencement at Liverpool Boys High School, as he recalled that his first camping trip with his friend Mr HL, had taken place in the Christmas holidays between Years 7 and 8.[37] Later in cross-examination this was revised to sometime during the Year 8 period.[38] It was on this camping trip that the complainant had learned that both the accused and his uncle were gay.[39]
[37] Pre-trial evidence T65.23-30.
[38] Pre-trial evidence T179.1-15.
[39] Pre-trial evidence T66.4-6.
The complainant described a difficult relationship with his mother and father throughout his upbringing. The complainant stated that any suggestion that he had a strong relationship with his mother “would be very, very inaccurate”. Instead, the complainant stated that his strongest relationships had been with his grandmother, and his grandfather, though the latter passed away when the complainant was nine years old.[40] The complainant described his relationship with his uncle Mr PN as “not that close”, he stated that his uncle’s relationship with the complainant’s sister was comparatively “very strong”.[41] The complainant recalled that his mother and father would often leave him and his sister in their grandmother’s care on Friday nights and weekends, and that he had no doubt that some of these times were also spent with the accused. The complainant recalled that his older sister Mrs IH had recently told him that the reason why they were left with their grandmother on these occasions was because their mother and father were “swingers”.[42]
Cross-examination – Flowerdale Road
[40] Pre-trial evidence T69.
[41] Pre-trial evidence T69.40-46.
[42] Pre-trial evidence T69.30-35.
The accused lived at the Flowerdale Road address, around the corner from the complainant’s grandmother’s home at this time.[43] The complainant stated that while he could not quantify the number of times he went to the accused’s home, when he was living at his grandmother’s house he would go to the Flowerdale Road house whenever he could.[44] The complainant denied that these visits could only have occurred on Sundays, stating that they would occur during school holidays, on weekends, and possibly during week days during this time.[45] The complainant stated that he was a young child, possibility as young as four years of age, when he began walking from his grandmother’s house to the accused’s.[46] The complainant’s memories of entering the Flowerdale Road home were via the back door to the house, the details of which he could not accurately recall.[47] The complainant then provided a recollection of the layout and the contents of the Flowerdale Road home, in particular his recollection of the ‘sunroom’ at the rear of the property, and the bedroom.[48] The complainant agreed that some details of his memory of the back sunroom could be incorrect.[49]
[43] Pre-trial evidence T73.10-15.
[44] Pre-trial evidence T74.19-20.
[45] Pre-trial evidence T74.43-45; 75.1-12.
[46] Pre-trial evidence T75.14-37.
[47] Pre-trial evidence T75.45;76.1-5.
[48] Pre-trial evidence T105-107.
[49] Pre-trial evidence T109.33-45;110.1-20.
The complainant recalled activities at the accused’s Flowerdale Road home including going inside a detached dark room which the accused would use to develop photographs and playing computer game using the computer in the accused’s bedroom.[50]
[50] Pre-trial evidence T116-117.
The complainant refuted the suggestion by the cross-examiner that the sexual activity that he had described occurring at the Flowerdale Road address never in fact occurred. The complainant recalled that it may have been during the day, but that he was not certain. [51] The complainant agreed that he had told the police that he thought that the alleged offence had occurred prior to the accused holidaying in the United States, however stated that he had become unsure about the timing of the events.[52] The complainant agreed that it was his recollection that the accused had brought him a present from the United States either sometime shortly before, or shortly after the alleged offence occurred.[53]
Cross-examination – Webster Road
[51] Pre-trial evidence T124.
[52] Pre-trial evidence T125.1-12.
[53] Pre-trial evidence T125.43-45.
The complainant stated, in comparison with the Flowerdale Road address, that he would only have been able to visit the accused’s Webster Road home if he had been taken there by someone, given the distance between that address and his grandmother’s home.[54] The accused could not remember how often he would have been to the Webster Road address, however he could remember a number of activities which occurred during the time that the accused lived there, including being taken to the movies at Fairfield, Australia’s Wonderland on several occasions, to a museum in Sydney on one occasion, and staying at the property and either renting or watching movies which the accused owned.[55] The complainant later agreed that it was possible that the trips to Wonderland could have in fact occurred at a time when the accused was not living at Webster Road, and was in fact living at his Canberra address.[56]
[54] Pre-trial evidence T109.20-30.
[55] Pre-trial evidence T127.25-40; 132-133.
[56] Pre-trial evidence T129.25-46.
In contrast to the Flowerdale Road address, the complainant stated that he would enter the Webster Road home through the front door. The complainant provided a description of the layout and contents of the Webster Road home, describing a rumpus room, containing a television and a lounge.[57] The complainant agreed that he would rarely spend time in the accused’s bedroom at Webster Road, instead spending most of his time in the rumpus room, recalling that there was a videotape player along with the television set in the room.[58]
[57] Pre-trial evidence T127.45-47; 128.1-20.
[58] Pre-trial evidence T128.21-24.
The complainant denied that he had described his recollection of the indecent assaults at the Flowerdale Road and Webster Road addresses in identical terms, stating that the former had involved the accused placing his hand down the complainant’s pants, and removing it when he woke up. The complainant recalled that the Webster Road indecent assault had involved the accused masturbating him until ejaculation.[59] The complainant would pretend to remain asleep during the course of the assault.[60]
Cross-examination – Complainant’s employment
[59] Pre-trial evidence T134.1-25.
[60] Pre-trial evidence T134.20-22.
The complainant was cross-examined in relation to his previous employment as a police officer and subsequent work as a lawyer specialising in criminal matters. The complainant agreed that he had qualifications relating to the investigation and management of adult sexual assault matters and qualifications relating to interviewing children in certain matters.[61]
Cross-examination – “Talking Heads” Movie
[61] Pre-trial evidence T137-139.
The complainant was not able to recall the title of the movie, however accepted that it was possible that he had seen the Talking Heads movie “Stop Making Sense” with the accused in August 1985 when it was showing in Canberra cinemas.[62] The complainant accepted that if the accused was the not living in Canberra at the time “then it’s possible that he took me to the movie and we didn’t go to his house, and he didn’t sexually abuse me that night, because he wasn’t living in Canberra, clearly”.[63]
Cross-examination – Accused’s home in Canberra
[62] Pre-trial evidence T141.1-5.
[63] Pre-trial evidence T142.5-8.
The complainant recalled arriving at the accused’s Wanniassa home and entering by being driven into the garage. The complainant stated that he could remember the accused’s train set being in the garage.[64] The complainant gave his recollection of the layout and contents of the accused’s home in Canberra.[65] The complainant was certain that the accused had a television set and video-recorder in both the lounge room and in his bedroom.[66] The complainant was also certain that the accused had a table in his garage set up with the model train set, and that he had been taken on the trip to the model train set shop, despite it being put to him that the model train set had not been built yet and that the model store trip did not happen.[67]
[64] Pre-trial evidence T143.
[65] Pre-trial evidence T144-151.
[66] Pre-trial evidence T152.30-47.
[67] Pre-trial evidence T156.19-30.
The complainant agreed that every night that he had stayed at the accused’s home in Canberra there had been an indecent assault or non-consensual sexual intercourse, with the exception of one night. The complainant denied, when it was suggested to him, that he did not have a memory of a particular, or specific sexual incident at the accused’s Canberra home.[68] The complainant was certain that he and the accused would not engage in more than one activity on a particular day.[69] The complainant denied the suggestion put to him that it was possible that it had in fact been his uncle who had taken him to see the “Kiss of the Spider Woman” movie.[70] The complainant rejected the suggestion that he had been given the spare room to sleep in from the first night that he had stayed with the accused, and that he had come to the accused’s bed and slept there two or three times until he had felt comfortable staying in the spare room.[71]
Cross-examination – Ms SD’s Birthday Party
[68] Pre-trial evidence T156.30-46; 157.1-5.
[69] Pre-trial evidence T158.25-32.
[70] Pre-trial evidence T173-174.
[71] Pre-trial evidence T191.40-46; 192.1-4.
The complainant stated that the visit to Canberra which included the alleged sexual intercourse offences, was the last occasion that he went to the accused’s home, with the possible exception of his cousin Ms SD’s birthday party.[72] The complainant recalls being in Canberra for the birthday party and staying at the accused’s house with a number of other people, including Mr HL.[73] The complainant could not remember his cousin’s date of birth, and accepted that his recollection could be off in respect of some of the dates. The complainant stated that if the birthday party had occurred after the alleged sexual intercourse offences, that he would have only returned to the accused’s home because he was not prepared to answer questions as to why he did not wish to attend.[74] The complainant stated that he did not want to find out the date of the 21st birthday party, or indeed what date any of the movies related to the incidents were released or made, so that the evidence he gave would be based upon his own free recall. The complainant accepted that this had led to mistakes in relation to the timing of matters in his evidence.[75] Photographs of the birthday party were shown to the complainant, who was able to identify attendees including the accused, Mr HL, the complainant’s cousins Ms SD and Mr MM, and others who the complainant could not recall, or only partially recall.[76]
[72] Pre-trial evidence T175.30-35.
[73] Pre-trial evidence T183.5-10.
[74] Pre-trial evidence T176-177; 178.1-5.
[75] Pre-trial evidence T181.1-15.
[76] Pre-trial evidence T181.18-46; 182.1-30.
The complainant stated that he could recall staying at the accused’s Canberra home following the birthday party, however he could not recall when the party took place, or when it occurred in relation to the other occasions that he stayed there. The complainant stated “Well, I don’t know if it’s just before the last occasion. I don’t – I don’t know when it happened. I don’t know when her birthday was. It could have been – it could have been a year before the last occasion, it could have been a year after the last occasion. I just don’t know”.[77] The complainant recalled that Mr HL had also stayed at the accused’s home that evening and that someone had slept in the accused’s spare room. The complainant accepted that it was possible that the other person who stayed at the accused’s home was his cousin Mr MM. The complainant recalled that he slept in the accused’s bedroom that evening, and that this would not have been regarded as unusual by the other guests.[78] The complainant rejected the suggestion that no sexual activity occurred between the accused and himself that evening.[79]
Cross-examination – The Thredbo Ski Trips
[77] Pre-trial evidence T182.35-47; 183.1-5.
[78] Pre-trial evidence T183.5-20.
[79] Pre-trial evidence T183.21-22.
The complainant recalled going skiing with the accused at Thredbo on two occasions in two different winter periods. The complainant maintained that this was his recollection when it was suggested by the cross-examiner that they had, in fact, taken only one trip to Thredbo, which had been evidenced by a photograph depicting the accused and an acquaintance named Mr DS.[80] The complainant did concede that there could have only been a single trip to Thredbo, despite his recollection of two trips.[81] The complainant made a similar concession with respect to who had come on the trip to Thredbo, recalling that it had only been himself and the accused, but conceded that this did not mean that others did not come along as well.[82] The complainant recalled a conversation at Thredbo between the accused and a man. The accused had told the complainant the man was the brother of ‘L’. ‘L’ was a friend of the accused and the complainant’s uncle and later married Mr HL for a period of time. The complainant could not recall ‘L’s’ surname, or whether he had met her brother.[83]
[80] Pre-trial evidence T183.24-32.
[81] Pre-trial evidence T183.34-36.
[82] Pre-trial evidence T183.40-45.
[83] Pre-trial evidence T184.35-46; 186.12-15.
The complainant recalled that on each occasion they had returned to the accused’s home in Canberra on the same day and had not done anything further aside from possibly having dinner, watching television, and going to bed.[84] The complainant rejected the suggestion that no sexual activity occurred between the accused and himself that evening, stating:[85]
Counsel: And you say then you went to bed and sexual activity occurred between [the accused] and yourself in [the accused’s] bed on each occasion – on that night after each of those events?
Complainant: Yes. Every night that I stayed in [the accused’s] bed he sexually assaulted me.
Cross-examination – The Pancake restaurant
[84] Pre-trial evidence T184.18-26.
[85] Pre-trial evidence T184.9-16.
The complainant was certain that the accused’s meeting at the Canberra pancake restaurant had occurred at breakfast, rejecting the suggestion that it was possible that he was mistaken, and that the meeting was more likely to have occurred in the afternoon. The complainant understood the meeting to have been in connection with the accused’s employment at the time.[86]
Cross-examination – the Surprise Birthday Party
[86] Pre-trial evidence T186.17-34.
The complainant agreed that the surprise birthday at the accused’s home would have occurred approximately one month after the date of his actual birthday, in late December or early January. The complainant could not recall whether the party was to celebrate the accused’s birthday as well, or what the accused’s date of birth was.[87] When it was suggested by the cross-examiner, that the two men who the complainant referred to as ‘the Teacher’ and ‘the Student’ were not respectively a teacher or a student at the time, the complainant was certain that a conversation with a teacher and a student occurred.[88] The complainant recalled that Ms LM was also at the party, and was dating the accused.
Cross-examination – the accused’s boyfriend Paul
[87] Pre-trial evidence T187.1-10.
[88] Pre-trial evidence T188.10-44.
The complainant recalled that after Ms LM and the accused were no longer together, that the accused had a companion named Paul, who the complainant later learned was the accused’s boyfriend from Mr HL.[89] The complainant was unsure when he first met Paul, or much about him at all.[90] The complainant recalled meeting Paul at the accused’s home, that Paul had not been friendly towards him, and that he had slept in the spare room for the night that the complainant stayed. The complainant rejected the cross-examiner’s suggestions that the complainant did not stay at the accused’s home while Paul was present, that he had never met Paul, and that he was only aware of Paul because of what he had been told by Mr HL during their camping trip.[91] The complainant denied that he had ceased going to the accused’s home because he had learned that he was gay.[92]
Cross-examination – similarities in the EICI complaint evidence
[89] Pre-trial evidence T189.25-47.
[90] Pre-trial evidence T189.46-47; 190.1-5.
[91] Pre-trial evidence T190.20-45.
[92] Pre-trial evidence T191.
The complainant was taken to his accounts of the alleged indecent assaults in his EICI 1 at QA624-5, QA777-8, and QA826-8, which were in similar terms. At QA624-5 the complainant stated that after the surprise birthday party:
Um, so [Ms LM] would have left. They [the Teacher and Student] would have gone into the spare room, and then I would have gone – and then I went to bed… with [the accused] in his bed. Um, and the same thing happened that night, um, the same modus operandi. I, um, went to – went to bed and, ah, slept on – on the left side, [the accused] was on the right side. Um, I was either on my right side or on my – on my back. Um, I was either asleep or falling – in the process of falling asleep. Um, um he either awoke me or I pretended to remain asleep. He pulled my penis out of the – the slit in my pants, um, he fiddled with it until it was erect. Um, he lubricated it with something wet and masturbated me until I ejaculated, yeah…
At QA777-8 of the EICI 1 the complainant stated that in the evening following the “Talking Heads” movie:
And the – the same thing happened. The same modus operandi. Um, I would have slept on the same side of the bed – the left side of the bed. Um, I was either lying on my back or my right side. I was either asleep or pretending to be asleep or was partially asleep…
Um, so if I was asleep, he woke me up. If I wasn’t asleep, then I’d just pretend – pretended to be asleep. He, um, removed my penis from the slit in my pants. Um, if I was on my side, I would have rolled onto my back. Um, he played with it until it got hard, he lubricated it, and, um, masturbated me until I ejaculated. And then I rolled over onto my right side and – and actually went to sleep.
At QA826-828 the complainant, recalled that after the Thredbo trips:
Um, and that, um, on each occasion it was the same modus operandi. Oh, we’d go to bed. I’d go to the left side. He’d go to the right. I’d be lying on my right side or I’d be lying on my back. I’d either, I’d [be] falling asleep or I’d have my eyes closed, and he start touching me and I’d pretend to remain asleep…
Um, if I was on my side, I’d roll over onto my back. Um, he’d put his hand through the – the slit in my pyjama pants, um, pull my penis out, playing with it until it was hard, lubricate it, masturbate me until my – until I ejaculated…
And then I would roll over and – and go to sleep actually.
The complainant was then taken to his statement at EICI 1 QA668, regarding the second night that the complainant recalls the ‘Teacher’ and ‘Student’ staying with the accused:
Yes. Exactly the same thing happened. So that – that night that we went to bed, um, again it was the same modus operandi. I – I slept on the left side. He slept on the right side. Um I was either on my right side or on my back. If I was on my right side, then I’d roll over on my – onto my back once he started to play with me. Um, he put his hand through the slot in my pyjama pants, pulled out my penis, um, played with it until I was hard, ah, lubricated it and then masturbated me until I ejaculated. Um, and again it didn’t – ah, it didn’t take me long to – to ejaculate.
The complainant was asked whether the omission of the phrase “I was either asleep or falling or in the process of falling asleep. He either awoke me or I pretended to remain asleep” in his description of the incident at QA668, which had been included in his description of the other incidents, was an oversight or whether it reflected a memory that he had of the incident. The complainant affirmed that it was an oversight on his part and should have been included in his description of the incident.[93] The complainant agreed that he had recited words to that effect in describing each of the other alleged incidents of indecent assault.[94] The complainant confirmed that all of the sexual activity that he occurred between himself and the accused took place before he had developed to a stage that semen would be produced when he ejaculated, which he indicated began at about 13 or 14 years of age.[95]
Cross-examination – later contact with the accused and civil proceedings
[93] Pre-trial evidence T194.1-15
[94] Pre-trial evidence T194.16-17.
[95] Pre-trial evidence T196.15-26.
The complainant confirmed that after he ceased visiting the accused, there continued to be contact between his mother, Ms SD, Mr HL, and the accused. The accused also continued to attend some family functions. The accused sent the complainant a letter and they had a few conversations on the telephone.[96] Additionally, the complainant was shown an employment reference written by the accused and dated 31 October 1989. The complainant did not recall receiving or requesting the reference letter and could not understand why it would have been provided at this time given that he believed that he had already secured employment.[97]
[96] Pre-trial evidence T197.5-21
[97] Pre-trial evidence T197.30-47; 198.1-15.
The complainant confirmed that he had instructed solicitors to institute civil proceedings against the accused on the basis of the same alleged acts which form the basis of these proceedings. The complainant agreed that he had conducted a title search on the accused’s Canberra property following the arrest of the accused, and before the civil proceedings had commenced. The complainant rejected the suggestion that he was making false allegations against the accused in order to pursue the civil claim against him, stating that he was unaware when he had originally made the allegations that there was a possibility of civil redress in his circumstances.[98]
Re-examination – “Talking Heads” movie, civil proceedings, and suicide attempt
[98] Pre-trial evidence T198.28-46; 199.1-43; 200.1-30.
In re-examination the complainant stated that he had agreed that he had possibly seen the “Talking Heads” movie in 1985, as he could only recall the event occurring, and not exactly when it had occurred.[99] The complainant confirmed that he had instructed lawyers to institute civil proceedings against the accused after he had been arrested.[100]
[99] Pre-trial evidence T201.1-15.
[100] Pre-trial evidence T201.1-17.
The complainant confirmed that he had attempted to kill himself in February of 2017.[101] The complainant explained that this had occurred due to a deep depression, and a number of factors in his life, including the alleged acts of sexual abuse by the accused. The complainant stated that his initial written statements regarding the incidents had been composed while still recovering from the attempted suicide and his associated mental health issues.[102]
Evidence of Ms LM
Evidence in chief
[101] Pre-trial evidence T201.40-47.
[102] Pre-trial evidence T202-203.
Ms LM gave evidence on 7 June 2021. Ms LM gave evidence relating to her relationship with the accused at the time of the relevant offences. The complainant had recalled Ms LM around the time of the alleged offences. The complainant had also recalled in his evidence that the accused and Ms LM had been “dating”.
Ms LM has known the accused as a friend since approximately 1983 and stated that she knew the complainant through the complainant’s cousin, Ms SD.[103] Ms LM agreed that she had a friendship with the accused at the relevant time and visited his home in Canberra.[104] Ms LM identified herself, the accused, and the complainant in photographs at the accused’s Canberra home, although she could not specifically recall the event at which they were taken.[105]
Cross-examination
[103] T32.5-15.
[104] T32.23-26.
[105] T33.35-45.
Ms LM stated that she could vaguely recall the complainant’s cousin Ms SD’s 21st birthday party. She agreed that Ms SD was friends with the accused, and that Ms SD may have gone on an overseas trip with the accused. Ms LM disagreed with the suggestion that she began dating the accused after they met at the birthday party, instead describing the relationship as a friendship.[106] Ms LM agreed that she went to Bali with the accused, and to Sydney for a New Year’s Eve event, but could not recall the year.[107] Ms LM had no specific recollection of attending a winery with the accused.[108] Ms LM agreed that her friendship with the accused existed from some time after the birthday party for a period of about nine months until February in 1987.[109]
Re-examination
[106] T37.
[107] T37.45-46; 38.1-15.
[108] T38.
[109] T39-40.
In re-examination Ms LM recalled that her relationship with the accused had primarily involved social outings including others and had eventually petered out. Ms LM clarified that the relationship had been for a short period of time, 18 to 24 months at the most.[110]
Evidence of Mrs IH (the complainant’s sister)
Examination in chief
[110] T41-42.
Mrs IH gave evidence on 15 June 2021. Mrs IH is the older sister of the complainant by about 18 months.[111] She recalled having known the accused since about four years of age, as he would visit quite often as a friend of her and the complainant’s uncle.[112] Mrs IH recalled that as a child the complainant would go to visit the accused at the accused’s home in Canberra when Mrs IH was around 10 years of age.[113] She recalled that the accused would come to their home to pick up the complainant and take him to Canberra during the school holidays.[114] The only occasions that Mrs IH could recall going anywhere with the accused was on one occasion to the movies, and a visit to Wonderland on another occasion, trips which also included the complainant.[115] Mrs IH would visit the accused in Canberra when she would go there with her cousin Ms SD over a span of time between Year 5 into High School.[116]
[111] T116.1-2.
[112] T114-115.
[113] T115.39-47.
[114] T116.10-11
[115] T116.16-24.
[116] T116.25-30.
Mrs IH recalled the 21st birthday party, that she had stayed at Ms SD’s house afterwards, and that the complainant had stayed at the accused’s home. She recalled that the sleeping arrangements had been discussed as a family before they had left for Canberra.[117]
Cross-examination
[117] T120.5-15.
Mrs IH confirmed that she would have turned ten years of age in 1982. The complainant would have been eight or nine years of age.[118] Their younger sister was also born in November 1982.[119] Mrs IH confirmed that their parents had an ‘on again / off again’ relationship, sometimes cohabiting and sometimes living separately. She confirmed that they had lived walking distance from the accused’s Flowerdale home, but then had moved four suburbs away to Macquarie Fields, after which a car trip was required to travel to the accused’s home. Mrs IH recalled that her uncle Mr PN, Mr HL, and the accused were all friends, having met at High School.[120] Mrs IH recalled a number of trips to Canberra for her cousin’s engagement and wedding parties.[121] These were the main family events which Mrs IH recalls taking place in Canberra.[122] She could not recall whether the complainant travelled to Canberra with his grandmother in 1985.[123]
[118] T121.25-41.
[119] T122.
[120] T123.
[121] T127-128.
[122] T129.1-5.
[123] T126.42-43.
Mrs IH agreed that when she had originally provided a statement to police in relation to this matter, that she had unintentionally and partially overheard her mother providing her own statement.[124] Mrs IH confirmed that she was aware at the time that the complainant had made a complaint to the police in relation to the accused, and that it related to sexual acts which had occurred in Canberra.[125]
[124] T125.39-46; 126.1-4.
[125] T129.5-18.
The complainant had not said anything to Mrs IH regarding Ms SD’s 21st birthday prior to the police interview.[126] Mrs IH agreed that it had been the police officers conducting the interview who had raised the 21st birthday party, and had asked where the complainant had stayed on that occasion.[127] Mrs IH affirmed that the complainant would have stayed at the accused’s home, as she recalled that he had not stayed at Ms SD’s home and there was nowhere else that he would have stayed.[128] Mrs IH resisted suggestions by the cross-examiner that this was not an accurate memory, and that she could not in fact recall who had stayed where with any accuracy.[129]
[126] T129.24-25.
[127] T130-131.
[128] T131.45-47; 132.1-2.
[129] T132-134; 135.1-10.
Mrs IH denied any knowledge of her parents being ‘swingers’, or that being the reason why she and her siblings would be left at their grandmother’s home on weekends. She did recall that when she was five or six years of age they would be left on their own or with their grandmother on weekends.[130] Mrs IH could not recall her mother ever presenting her with a bill associated with the costs of raising her.[131]
[130] T135.44-47; 136.1-30.
[131] T136.46-47; 137.1-2.
Mrs IH could recall going to the accused’s Flowerdale Road address on a number of occasions but could not remember any visits specific to or associated with any photographs of her which were taken there.[132]
Re-examination
[132] T137-138.
Mrs IH explained that on the night of the 21st birthday party she would have been unaware of anything occurring between the complainant and the accused, as they had been seated at different tables and did not stay at the same home afterwards. Mrs IH affirmed that the complainant had not provided any details to her of the alleged abuse other than that the accused had sexually abused him in Canberra.[133]
Evidence of Mr HL
[133] T139-140.
Mr HL gave evidence on 16 June 2021 via audio-visual link. Mr HL is a personal friend of both the complainant and the accused and gave evidence in relation to a complaint regarding the accused made by the complainant when he was 12 or 13 years of age.
Evidence in chief
Mr HL became friends with the complainant’s uncle, Mr PN, from early primary school, and with the accused in High School. All three were in the same High School cohort. Mr HL met the complainant through his friendship with the complainant’s uncle Mr PN.[134] Mr HL confirmed that he attended the 21st birthday party, however he incorrectly recalled that it took place in Sydney, rather than in Canberra.[135] Mr HL was unsure where he stayed on the night of the birthday party, or whether it took place in Sydney or Canberra.[136]
[134] T147.
[135] T148.1-4.
[136] T149.1-8.
Mr HL recalled visiting the accused at his home in Canberra at some time in the early 1980s, and that the accused had a flatmate at the time whose name he could not recall.[137]
[137] T149.20-25.
Mr HL initially stated that that he had not ever seen the complainant at the accused’s Flowerdale Road address.[138] He then recalled that both the complainant and the accused were interested in photography, and the three of them would use the accused’s dark room at the Flowerdale Road property during the holidays to develop photographs. Mr HL recalled that this studio was a little shed in the back yard of the property.[139] Mr HL then recalled that the complainant had never entered the dark room, and that it had only been himself, the accused, and the complainant’s uncle Mr PN.[140] Mr HL reaffirmed that he had never seen the complainant at the Flowerdale Road address.[141]
[138] T150.1-4.
[139] T150.5-10.
[140] T150.6.
[141] T150.40-45.
Mr HL recalled that the complainant was attending martial arts classes at the age of about 14 or 15, and that at this time his relationship to the complainant was as a ‘semi-uncle’, he would encourage the complainant to train and would see him when he attended classes as he worked nearby.[142]
[142] T155.40-47.
Mr HL recalled that he went camping on two occasions with his nephews and the complainant when the complainant was about 14 or 15, once in Bathurst, and on another occasion in central NSW. Mr HL recalled that the complainant had spoken to him about the accused not at one of the camping trips but at a later date, and that the complainant had described the accused as a “psycho weirdo” and told Mr HL that the accused had “fondled on his genitals in the middle of the night”.[143] When asked to clarify his specific recollection of what the complainant had said, Mr HL stated:[144]
Well, [the complainant] said that he used to stay with - with [the accused] and then he'd stay in his - in his room, in his double bed, which at the time didn't seem strange because when [the complainant] said he used to stay with his uncle, too, in the same bed, because he was about 10 or whatever. And then he said - and then, you know - you know, when you're young and then you sleep, you know, you have an erection in the middle of the night and then he woke up and then [the accused] was fondling him through his pyjamas and then he was sort of half asleep and didn't know what was going on and then when he realised what was going in, he sort of moved away and - and then [the accused] sort of said nothing or did nothing and then [the complainant] then said, like, you know, the next morning, it was - you know, it was really, really awkward, you know.
…
Well, I think the exact words were something, you know - you know, 'He was trying to rub my cock through the pyjamas,' something more crude, if you like, sorry to say it, and then he said when he - when he got up in the morning, he said, you know, it was like his - he'd had a fight with his girlfriend or something and John was in a really bad mood and didn't want to talk to him and - - -
[143] T156.30-40.
[144] T156.41.47; 157.8-13.
Mr HL recalled that the complainant had said that this incident had occurred in Canberra. He did not ask the complainant whether there had been more than one incident of this occurring, or recall the complainant speaking about the incident on any other occasion.[145] Mr HL described the complainant’s demeanour at the time as being “a bit like an emotional release or whatever, or you know, trying to discharge some guilt or whatever”.[146] Mr HL recalled that this conversation occurred sometime between 1993 and 1995, near to the time of the murder of state politician John Newman.[147]
Cross-examination
[145] T157.15-21.
[146] T157.26-27.
[147] T157.33-40; 158.5-6.
Mr HL recalled that the complainant had been living with him in Cabramatta at the time that he reported the incident involving the accused.[148] Mr HL agreed that his understanding at the time was that there had only been one incident, and that the complainant had provided quite a lot of detail about how the incident had occurred.
[148] T158.13.
Mr HL agreed that it was possible that he had been on more than two camping trips with the complainant, and that it was possible that the first could have occurred when the complainant was 13 years of age. Mr HL recalled that one of the trips was definitely during the summer holidays.[149] Mr HL confirmed that he had no memory of the complainant speaking to him about the accused during a camping trip and denied having spoken to anyone about the possibility of that having occurred prior to giving his evidence.[150]
[149] T159.25-47.
[150] T160.
Mr HL confirmed that he had initially been reluctant to provide evidence in relation to this matter, due to his concern that it would attract negative publicity for him in his home town. He confirmed he had spoken on the telephone with the complainant, who had assured him that his name could be suppressed so that this would not occur.[151] Mr HL denied that this conversation had influenced the content of his evidence.[152]
[151] T165.
[152] T166.
After being informed by counsel for the accused that the 21st birthday party took place in Canberra, Mr HL remained unable to recall where he had stayed afterwards. He assumed that it would have either been at Ms SD’s home, or at the accused’s home, and that he would not have stayed at a hotel, but did not have any specific memories of where he stayed or how he had travelled to Canberra.[153] Mr HL could not recall staying at the accused’s home at the same time as the complainant on any occasion, or any occasion when the complainant was sleeping at the accused’s home and in the accused’s bed.[154] Mr HL stated that, hypothetically, in 1986 and in circumstances where there were enough guests at the accused’s home that he and others were sleeping on mattresses on the floor, it would not have raised any concerns that the 12 year old complainant would be sharing a bed with the accused.[155]
[153] T167.40-45; 168.1-7.
[154] T168.20-25.
[155] T169.7-20.
It was suggested to Mr HL that he had visited the accused’s home with his partner in 1992, and on three occasions in 1993. Mr HL could not recall these visits, however he accepted, after viewing them, that there were photographs and video recordings of him there at that time.[156] He accepted that his recollection of visiting the accused in 1987 could have been incorrect, given the passage of time.[157]
Evidence of Ms SD (the complainant’s cousin)
Examination in chief
[156] T170-171.
[157] T172.1-2.
Ms SD gave evidence on 16 June 2021. She is the first cousin of the complainant’s mother and has resided in Canberra all her life. She recalled visiting the complainant’s mother and uncle at her aunts’ home in Liverpool every school holiday period. She recalled that Mr HL was friends with her cousin Mr PN, and confirmed that she was friends with the accused, who at the time lived nearby at the Flowerdale Road address.[158] Ms SD’s birthdate is the 24th of May 1965. She is approximately eight years older than the complainant.[159]
[158] T174.45-46; 175.1-20.
[159] T175.21-25.
Ms SD recalled her 21st birthday party. She could not recall all of the attendees, however she did recall that the complainant, the accused, and Mr HL had been in attendance. She was unable to specifically recall who had stayed at her home afterwards but stated that her family members from Liverpool would have done so. Ms SD’s wedding was in 1994 and the engagement party two years prior. She recalled that the Sydney family would have also been at these events.[160] She recalled that both the complainant and the accused had attended her wedding, however she could not recall whether either had attended her engagement party.[161]
Cross-examination
[160] T176.29-46.
[161] T177.1-8.
Ms SD agreed that she would have ceased travelling to visit the complainant’s family during the school holidays in Sydney from 1983 when she turned 18 but would continue to visit on occasions such as Christmas, Easter, and birthdays. She agreed that she became good friends with the accused when she was in her early twenties.[162] Ms SD identified herself in a number of photos which were taken by the accused however could not recall them being taken. She did recall that the accused had a dark room at his Flowerdale Road home and would regularly take photos of family events.[163]
[162] T177.19-46; 178.1-21.
[163] T179; 180.1-6.
Ms SD confirmed that she was unable to recall specifically where the guests at her 21st birthday party stayed in Canberra.[164] Ms SD agreed that the complainant contacted her in relation to the possibility of her giving evidence about her recollection of her 21st birthday party, and that he had told her about the nature of the allegations that he was making against the accused.[165] Ms SD could not recall telling the complainant that she remembered going out after her birthday party and the possibility that there might be photographs. Ms SD stated that she did not have photographs of going out after the party and could not recall what had happened on that date. She stated that she had not spoken to anybody further about the events after the party.[166]
Evidence of the complainant’s wife
[164] T181.45-46; 182.1-4.
[165] T182-183.
[166] T185-186.
The complainant’s wife gave evidence on 16 June 2021 in relation to a complaint made to her by the complainant about the alleged offences. There was an objection in relation to this evidence by the defence, and as such the evidence which was subject to objection proceeded and was received on the voir dire.[167] The objection is dealt with in these reasons below at [208-223].
Evidence in Chief
[167] T197.10-35.
The complainant and his wife met in 1990 and were married in 1996. She met the accused through the complainant and his extended family. The complainant’s wife recalled a conversation between herself and the complainant which occurred while they were driving. The complainant’s wife recalls that during course of a conversation regarding the death of a friend’s father in approximately 2001, the complainant disclosed that the accused “used to touch me” or “used to fondle me when I went and stayed with him” when he was younger. The complainant indicated to her that his parents were unaware of this.[168]
[168] T199.20-40.
The complainant’s wife recalled that the accused had attended a number of family events over the years, including their wedding in 1996, and the wedding of the complainant’s older sister in 2006. She recalled that the accused had been the MC of the 2006 wedding of the complainant’s older sister, and that the complainant had not wanted this to occur but did not object as he did not want to provide a reason for the objection.[169] The complainant’s wife recalls that she and the complainant spent a lot of time at the wedding attempting to avoid having conversations with the accused.[170] The complainant’s wife also recalled another significant occasion in 2012 or 2013 where there had been an interaction between the complainant and the accused when they had both been visiting the complainant’s mother in hospital. The complainant’s wife recalled that there had been a short polite conversation before excuses were made to leave, and that the interaction had left the complainant “incredibly distressed”.[171]
Cross-examination
[169] T200.10-15.
[170] T200.15-17.
[171] T200.21-37.
The complainant’s wife was unable to recall when exactly between 2001 and 2006 that the conversation in which the complainant disclosed the alleged abuse took place. She was aware from previous conversations that he used to stay with the accused in Canberra. The complainant had not disclosed the abuse in those previous conversations.[172]
[172] T201.15-45.
The complainant’s wife answered further questions which touched on the complainant’s employment as a police officer, his suicide attempted in 2017, his PTSD and workers compensation claims, and his civil claim against the accused. She denied that they had ever experienced any financial stress as a result of their circumstances.[173]
Evidence of First Constable Middlemiss (the Informant)
Evidence in chief
[173] T203-206.
The informant gave evidence on 17, 18 and 21 June 2021. The investigation of the accused was transferred to the informant by the original investigating officer who conducted the EICI.[174] The informant gave evidence outlining the nature of the investigation that was undertaken on the basis of the complainant’s EICI, including investigations of documents and materials taken during the search conducted at the accused’s home. These documents included birth certificates of the complainant, the accused’s flight records, extracts from the accused’s diaries and ledger books, and electricity and water records relating to the accused’s Canberra home which were potentially relevant to the investigation of the incidents the subject of the complainant’s allegations.[175] These records and extracts were tendered and form Exhibits 11-12.
[174] T245.
[175] T246-250.
The informant also conducted investigations of the newspaper archives at the National Library in an attempt to identify and locate when the movies that the complainant had mentioned had been showing in Canberra theatres.[176] The informant was able to identify movie advertisements in the Canberra Times for the Talking Heads’ movie “Stop Making Sense” and for “Kiss of the Spider Woman” on dates in 1985 at the ‘Electric Shadows’ theatre.[177] Clippings containing these advertisements were tendered and form part of Exhibit 11. The informant’s investigations revealed that the release dates for the movies “They Call Me Bruce” and “Hot Dog… The Movie” were 5 May 1983 and 28 June 1984 respectively. Whether this was the cinema release date or release on video tape could not be determined.[178]
[176] T251.
[177] T254-255.
[178] T257.35-45.
The informant was asked to identify a number of photographs taken during the execution of the search warrant at the accused’s home, as well as the drawing produced by the complainant during his EICI. These were tendered and formed Exhibits 13 and 14.[179] Further extracts of the accused’s diary from 1986 formed Exhibit 15. This diary had entries relating to the accused’s work meetings, including notations such as “9am meeting Pancakes” on August 13, and “Black Mountain Rest” on October 14.[180]
[179] T262-267; 275-276.
[180] T279-280.
An audio recording of the execution of the search warrant at the accused’s home was played in court and formed part of the trial evidence. The accused cooperated with the police as they executed the warrant in relation to providing access to computers, hard drives, and associated electronic and video recording equipment. The accused also made admissions in relation to the child exploitation material which was detected on a USB memory stick in the accused’s bedroom, which is discussed further in these reasons in respect of Tendency Two at [372], [392]-[394], [397]-[399], [422]-[426].
The informant stated that he had made several attempts to contact persons identified in relevant photographs, however conceded that he had encountered some difficulties in contacting them. A number of those who were contacted declined to make a statement, and the complainant’s uncle, Mr PN, was deceased before the investigation began.[181] Inquiries were not made with other persons because they were not deemed relevant to the investigation. A Mr DS, identified by the accused as being depicted in a photograph of the Thredbo ski trip was not contacted due to limited resources and timeframes associated with travelling from Canberra to Sydney.[182]
Cross-examination
[181] T298.
[182] T299-300.
The informant agreed that Mr DS had been identified by the accused during the execution of the search warrant and that he would have been an important witness. The informant stated that he had conducted searches of the electoral roll and other databases in an attempt to contact him.[183] The informant agreed that there were some identified persons that did not provide statements, but could not recall whether these persons declined to give statements.[184] There were some individuals who were identified such as the complainant’s male cousin, however no enquiries were made in relation to those individuals.[185] The informant agreed that the accused had no criminal convictions, nor had he been charged with a criminal offence prior to the present charges.[186]
[183] T299.30-47; 300.1-33.
[184] T301; 377-379.
[185] T381-383.
[186] T323.6-9.
The informant provided further evidence in relation to the files which were found on the accused’s hard drive, and in particular the digitised photographs. The informant stated that there were over 315,000 files on the accused’s hard drive, many of them which were not relevant to the investigation.[187] The informant stated that he had attempted to narrow his search to those photos which were relevant to the time periods associated with the investigation.[188]
[187] T303-305.
[188] T306-308.
The informant agreed that he had not made an attempt to interview the accused’s mother, conceding that this was an oversight on his behalf. The informant also made no attempt to interview the accused’s brother or to make enquiries into matters such as the floor plans of the Sydney residences, or when Wonderland opened in Sydney.[189] The informant also provided further information in relation to the way in which the interviews and investigation involving the complainant’s sister, mother, and cousin, and the investigation more broadly, had been conducted.[190]
[189] T309.
[190] T310-323.
The informant was cross-examined further regarding the conduct of the investigation and the execution of the search warrant in relation to the accused’s model train set, and the photographs of the train set which were identified in the accused’s photo albums.[191] The informant was also questioned in relation to photographs of the train set which were included on the accused’s hard drive but were not included in the brief of evidence.[192]
[191] T328-331.
[192] T336-337; 356-365.
The informant agreed that he had conducted a review of newspapers in order to ascertain when there had been showings of the “Talking Heads” movie in Canberra theatres. A review was conducted of the time period between August 1985 and mid-1987. He was able to identify a number of dates within that time period.[193] The informant confirmed that a similar search was conducted in relation to the “Kiss of the Spider Woman” movie.[194]
[193] T348-349.
[194] T376.12-40.
The informant was questioned further in relation to the photographs located on the accused’s hard drive that he had, and had not viewed, during the course of the investigation. The informant conceded that he had been exaggerating, or mistaken, when he had previously indicated that he had viewed all of the photographs in the relevant folders on the hard drive.[195] The informant was questioned further regarding his decision to omit certain photographs relating to the model train set from the brief of evidence, and whether those photographs were relevant to the investigation of the allegations against the accused.[196]
[195] T370.
[196] T371-375.
The informant agreed that he had spoken with the person who had been identified by the complainant as ‘the Teacher’, but had not asked him whether he was a teacher in 1986 or 1987.[197] The informant had taken notes of the conversation indicating that this person was friends with the accused and had visited his home shortly after the accused had moved to Canberra, as well as his recollection of the sleeping arrangements at the time and of details regarding the complainant.[198]
[197] T379.40-47
[198] T380-381.
Counsel for the accused was granted leave to ask the informant a further question, being whether there was a folder in the accused’s hard drive containing a folder titled “1990 train bits and pieces”. The informant could not recall whether this was the case.[199] Later in the trial counsel for the accused tendered four photographs which were viewed by the informant in a folder titled ‘Train bits 19900900’, and a file named ‘IS train bits’. The viewed photographs became Exhibit 23.[200]
Witness not called by the prosecution
In Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 at [27] the High Court held that in a criminal trial:
... where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.
See Louizos v R, R v Louizos [2009] NSWCCA 71; 194 A Crim R 223 at [57]. See also VP v R [2021] NSWCCA 11.
The accused made the following submission, that Mr DS, Mr MM, Mr SB and the accused’s mother have not been called by the prosecution to give evidence. I can take the fact that there was no evidence from a number of witnesses into account when I decide whether the prosecution has proved the guilt of the accused.
The prosecution made the following submission, that Mr IB, Mr DS, the accused’s mother (Mrs HG), Mr IS, Mr DD, Mr PH, Mr PN, Mr SB and Paul were not called by the prosecution to give evidence. The Court can take the fact that there was no evidence from those witnesses into account when deciding whether the prosecution has proved the guilt of the accused.
I am not able to speculate what those witnesses would have said if they had been called. But in a criminal trial, where the prosecution must prove that the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused's guilt.
The submissions of the accused are as follows:
Mr MM was identified during cross-examination of the complainant in October 2020 as being a person who stayed with the accused on the night of Ms SD’s 21st birthday party. He was therefore an important witness. The evidence of the informant is that no enquiries were carried out to track Mr MM down.
Mr DS was identified by the accused during the execution of the search warrant on 21 December 2019 as the person who is in the Thredbo photos with the accused and the complainant. He was therefore a relevant witness and could have given evidence about what occurred following the skiing trip. The accused has given evidence that he does not believe the complainant stayed with him after skiing. Mr DS may have been able to shed light on that aspect of the evidence.
Mr SB was identified by the accused during the execution of the search warrant on 21 December 2019 as one of the people in attendance at the surprise birthday party. No attempts were made by the informant to contact him. He may have been able to give evidence in relation to the events of that evening.
Mrs HG is the mother of the accused. She was present when the police attended the accused's premises on 21 December 2019. She has not been asked to provide a statement. The accused lived with her during the alleged events in Sydney. She may have been able to give evidence in relation to whether or not she saw the complainant attend the premises at Flowerdale Road Liverpool and Webster Road Leumeah.
Unreliable Evidence Warning
The warning applies if there is a jury: s 165(2). Pursuant to s 68C of the Supreme Court Act, a judge hearing a trial without a jury must take any warning, direction or comment into account in considering the verdicts.
It was submitted by counsel for the accused that there be an unreliable evidence warning in relation to the evidence given by the complainant’s mother: s 165(1)(a) Evidence Act - hearsay evidence; and s 165(1)(c) Evidence Act - reliability affected by age, mental ill health.
In my view, the evidence of the complainant’s mother does not require a warning under s 165.
Tendency directions
I will include this direction for completeness as it was part of the submissions made by the parties. It is no longer relevant.
The accused is charged only with the offences stated in the indictment. The prosecution has also led evidence that goes to other acts said to have been committed by the accused which do not relate to the charged counts.
The prosecution says there are two distinct patterns of behaviour that reveal that the accused has a tendency to act in two particular ways:
· Tendency One: To have a sexual interest in the complainant and acted on that sexual interest by masturbating the complainant’s penis when laying down together, for his own sexual gratification.
· Tendency Two: To have a sexual interest in male children and acted on that interest by acquiring and watching visual recordings depicting male children engaging in sexual acts, for his own sexual gratification.
The tendency evidence can only be used to establish this tendency if the court makes two findings.
(1) The first finding is that one or more of those acts occurred. In making that finding the court does not consider each of the acts in isolation but considers all the evidence, in order to determine whether a particular act or acts actually took place. If the court finds that none of the acts are proved by the prosecution, then the court must put aside any suggestion that the accused had the tendency advanced by the prosecution. If it is found that one or more of those acts occurred, then the court can go on to consider the second finding.
(2) The second finding is whether, from the act or acts that the court found proved, the court is satisfied that the accused had the tendency that the prosecution alleges. If the court cannot draw that conclusion, then again the court must put aside any suggestion that the accused had the tendency alleged.
However, if it is concluded that the acts are proved and that they establish that the accused had the tendency to act in the particular way alleged, the court may use the fact of that tendency in considering whether the accused committed the offences charged. The court must bear in mind that this is just one part of the evidence relied upon by the prosecution and give it the weight that the court thinks it deserves in the context of the evidence.
The evidence of other acts must not be used in any other way. The court cannot reason that because the accused has committed these other acts that he is therefore generally a person of bad character and for that reason must have committed the offences charged. The court cannot punish the accused for other conduct attributed to him by finding him guilty of the charges in the indictment. The court cannot use the evidence in any way prejudicial to the accused unless the prosecution’s argument is accepted that it discloses a tendency and therefore makes it more likely that the accused committed the offences charged against him. Even if it is accepted that the accused has a tendency to act in the way alleged, it needs to be considered whether or not he acted in that way on the occasion when the prosecution alleges.
It must be recognised that the evidence led by the prosecution to prove that the accused had a tendency to act in a particular way is separate from the specific allegations in the indictment. The evidence led by the prosecution to prove that the accused had that tendency cannot be substituted for the specific allegations in the indictment. The court is concerned with the particular and precise occasion alleged in each of the counts on the indictment. If the court finds that the accused had the tendency alleged by the prosecution it may indicate that the particular allegations are true, but the court is required to find that each specific charge is proved beyond reasonable doubt before a guilty finding.
I have indicated at [422]-[426] I do not take into account as tendency evidence Tendency Two. I have also indicated that I do not take into account as tendency evidence Tendency One. This evidence does not form part of the evidence of my reasoning in this case.
I underline that I have included the above direction merely for completeness as directions proposed by the parties.
Good character
In this case, there was evidence of the good character of the accused prior to this investigation. The court must take the good character evidence into account in two ways.
First, in relation to whether the accused committed the offences, the court must consider whether the evidence of good character means that it is unlikely that he committed such offences.
Second, the court must take the good character evidence into account when considering the truth of the statements that the accused made to police and in evidence. The court could rely upon the limited good character evidence to reason that it is unlikely that a person of such prior good character would have lied to the police or given false evidence.
I have directed myself in relation to good character in the following terms.
The accused has called evidence to establish that he is a person of good character in that there is an absence of relevant prior convictions. That evidence has not been challenged by the prosecution. Therefore, I should accept the fact that the accused is a person of good character, in that he has no prior relevant convictions.
The law provides that a finder of fact is entitled to take this into account in favour of the accused on the question of the whether the prosecution 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 prosecution. Whether I do reason in that way is a matter for me as a finder of the facts.
The accused has made exculpatory statements in his police record of interview and in evidence.
I can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account in giving an account of the events in answer to questions asked by the police. Whether I reason in that way is a matter for me to determine.
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 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 as the finder of the facts, but I should take that fact into account in the ways I have indicated.
Evidence was led from the informant that the accused has no criminal convictions. I note that the police located child exploitation material on a USB stick in the accused's bedroom during the execution of the search warrant at his premises on 21 December 2019. This evidence was not contested, nor was the evidence of the police office setting out the contents of that material.
The accused seeks a good character direction in relation to the good character of the accused up to the possession of the child exploitation material.
I additionally direct myself in relation to good character. I must take the accused’s good character into account in his favour in two ways as stated above. Firstly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not the prosecution has proved his guilt beyond reasonable doubt. Secondly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not to accept what the accused has said about the prosecution’s allegation against him. The accused’s good character and reputation does not provide him with a defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence.
The extent I can take into account the previous good character of the accused is limited to that period prior to being found in possession of child exploitation material.[612]
Final Directions
[612] See also s 104 and s 110 of the Evidence Act.
I direct myself in accordance with R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315. I direct myself that the complainant’s evidence should be scrutinised with care see earlier para [24].
I direct myself in accordance with Longman v The Queen [1989] HCA 60; 168 CLR 79.
I direct myself in accordance with R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1 at 521-522 (R v Jovanovic). See also Sperling J at 542:
Whilst it may not be necessary to give a particular direction in every case involving complainant evidence, the following would, in my view, be a suitable direction:
“It would be natural to ask yourselves why the complainant, X, would make up such serious allegations against the accused. I give you the following directions about that question:
1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns on the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.
2. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.
3. It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.”
I direct myself in accordance with R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186. I direct myself that, if I have any reasonable doubt about the evidence on a count on the indictment, I must ask whether that doubt causes me to have reasonable doubt about evidence on the other counts.
Consideration: Conclusion
Assessment of the evidence of the complainant
In my view, the complainant was a highly credible witness.
There was, in my view, nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence.
He made appropriate concessions as to the limits of his knowledge and memory. There was no tendency towards embellishment. His evidence was detailed. He was, in my view, an impressive witness. The submissions of the prosecution accord with my view of the complainant’s evidence: he was frank in his answers, his evidence had a ring of truth, and he withstood cross-examination.
As far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable.
Assessment of the evidence of other prosecution witnesses
Ms LM, Mrs IH, Mr HL, and Ms SD were all credible and reliable witnesses. In my view, individually they were doing their best to tell the truth.
Similarly, the complainant’s mother and the complainant’s wife were credible and reliable witnesses doing their best as individuals to tell the truth.
Assessment of the evidence of the Informant
Constable Middlemiss was a credible and broadly reliable witness who frankly conceded that there were aspects to the investigation that could have been better.
Accused’s Evidence
The accused was not an impressive witness. He appeared, to me, to tailor his evidence in the trial in a manner that detracted from his credibility and reliability.
I nevertheless remind myself of the matters concerning demeanour outlined below.
I have directed myself in the terms of Liberato and De Silva outlined above at [582]-[586], [737]-[738].
Furthermore, I have directed myself in relation to good character as outlined above at [779]-[791].
Demeanour
In discussing the demeanour of the complainant and other witnesses, including the accused, I have borne in mind the observations of Weinberg JA in Pell v The Queen [2019] VSCA 186: see [917]-[924].
In particular, I note at [917]-[919]:
Clearly, it is important to be aware of the risk of giving too much credence to matters such as demeanour, when evaluating the evidence of a witness. In the past, there has been a great deal of misplaced confidence in the capacity of a judge, or any other decision-maker, to discern the truth, on the basis of demeanour alone.
The High Court has observed that it can be dangerous to place too much reliance upon the appearance of a witness, rather than focusing, so far as possible, upon other, more objectively reliable matters. These might include, for example, contemporary documents, clearly established facts, scientifically approved tests, and the apparent logic of the events in question.
Empirical evidence has cast serious doubts upon the capacity of any human being to tell truth from falsehood merely from the observations of a witness giving evidence. That is particularly so in the artificial and stressful circumstances of a courtroom. There is today a substantial body of scholarly writing which cautions against giving too much weight to demeanour when assessing the probative value of evidence.
(footnotes omitted)
I also note that a positive assessment of credit in relation to the complainant cannot replace an analysis of the evidence.[613]
Complaint evidence
[613] Hall v The Queen [2021] SASCFC 16 at [174].
The prosecution relies on complaint evidence as further evidence that the offences occurred.
The question I must ask in accordance with the complaint directions set out above at [712]-[729], is do the complaints support the prosecution case. I must consider consistency. I must also consider the complaints in context noting what was said to whom and when.
In my view, the complaint evidence of the complainant’s mother and Mr HL supports the evidence of the complainant.
Tendency evidence
As referred to at [422]-[426], I will not be taking into account tendency evidence in my reasoning and determination of this case.
Tendency One involves an allegation concerning the same complainant and the same accused. I do not rely upon the incidents as tendency evidence, as discussed earlier.
Tendency Two is reliant on a significant time gap of approximately three decades and I therefore do not reply upon that evidence as tendency evidence.
On reaching my conclusion, I have not relied upon tendency reasoning. Tendency reasoning is not necessary and would add little to the strength of the prosecution case.
Motive to lie
It was suggested in cross-examination and submissions that the complainant had a financial motive to lie.
Where the defence assert a lie was told by the complainant, the defence do not have to prove a motive to lie or what the motive might be. The onus never shifts.
It is not permissible to invite a jury, or fact finder, to bolster a complainant’s credibility with an argument that there is no apparent reason for the complainant to lie, as truthfulness is not to be inferred from the absence of any apparent motive to lie: see R v Jovanovic and Palmer v The Queen [1998] HCA 2, 193 CLR 1.
Evidence in relation to timing
In WGC at [156]-[157] Crennan J stated:
However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence" …
Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material.
(Footnotes omitted)
In Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 at [14] the Victorian Court of Appeal stated:
There may, of course, be cases where the specification of the day, although not an element of the offence, is “material to the integrity of the criminal process”. This may be true, for example, where the accused has given notice of an alibi defence with respect to the alleged date(s).
“Material to the integrity of the criminal process” is a reference to the judgment of Mulligan J (with whom Perry and Debelle JJ agreed) in R v H (1995) 83 A Crim R 402 at 411; see also R v Masina (No 3) [2020] ACTSC 154. Mulligan J quoted from the Judgment of Derrington in R v Jacobs [1993] 2 Qd R 541, who said that it was going too far to say that the time alleged in the indictment may become an element of the offence:
Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.
Section 56 and 66B Crimes Act
As referred to by counsel for the accused, the accused was not charged under s 66B as referred to at [225], [572]. This section was inserted by the Royal Commission Justice Legislation Amendment Act 2018 (ACT). This section permits the inclusion of multiple child sexual offences in a single charge. Section 66B(7) makes it clear that “it is not necessary to prove an incident with the same degree of specificity as to the date, time, place, circumstances or occasion as would be required if the person were charged with the child sexual offence constituted only by that incident”.[614]
[614] Royal Commission Criminal Justice Legislation Amendment Bill 2018 Explanatory Statement, 22.
As explained in the Explanatory Statement,
Section 66B(5) notes that the charge does not need to include particulars of specific incidents of the offence, nor do the particulars need to distinguish any specific incident of the offence from any other. This ensures that the purpose of the new section is preserved. If specific incidents of the offence or specific distinguishing factors exist, it is proper to charge a separate offence. The purpose of the course of conduct offence is to recognise the overwhelming body of evidence about the effects of child sexual abuse on memory recall.[615]
(emphasis added)
[615] Royal Commission Criminal Justice Legislation Amendment Bill 2018 Explanatory Statement, 22.
In this case, the prosecution charged eighteen specific counts as opposed to a single charge of multiple offences.
The Court must therefore carefully examine each incident with the specificity required as to date, time, place, circumstance and occasion: see KRM at [96], S v The Queen, see also R v JT [2017] NSWCCA 272.
There is an issue with the specificity as to the date the movie “Kiss of the Spider Woman” was playing in Canberra. It is therefore appropriate that I record a verdict of not guilty on Count 1 which has been tied, in the prosecution case, to the viewing of that film.
Similarly, there is an issue with the specificity as to dates concerning Count 3, the pancake restaurant, Count 4, the “Talking Heads” movie, Count 5, the fight with Ms LM, Count 6, Thredbo day trip, Count 8, Spa visit, Count 9, Black Mountain, Count 10, “They Call Me Bruce”, and Count 18 “Attempted wake up”.
It is therefore appropriate that I record verdicts of not guilty on these respective counts. These counts having been tied in the prosecution case to various specific occasions.
There is, in my view, no issue with the specificity required as to date, time, place, circumstance and occasion concerning Count 2, Counts 11 and 12, and Counts 13 to 17.
In accordance with Markuleski, I must direct myself if I have any reasonable doubt about the evidence on a count in the indictment, I must ask myself whether that doubt causes me to have reasonable doubt about evidence on the other counts. It does not.
In relation to the remaining counts, I direct myself, as I have earlier, again concerning the following warnings and directions:
· Scrutinising the evidence carefully: Murray, above at [24].
· That it is dangerous to convict unless after the evidence is scrutinised with great care, and considering the circumstances relevant to its evaluation and paying heed to the warning, I am satisfied of its truth and accuracy: Longman, above at [24], [680]-[682], [751]-[753], [792].
· A delay and significant forensic disadvantage: s 165B Evidence Act, above at [740]-[755]. See also Binns v R [2017] NSWCCA 280.
· Jones v Dunkel, above at [756].
· In relation to witnesses not called by the prosecution, above at [757]-[766].
· Liberato and De Silva, above at [582]-[586], [737]-[738], [805].
· R v Jovanovic, above at [794].
· Good character, above at [779]-[791].
· The prosecution case depends on one witness.[616]
[616] Robinson v The Queen [1999] HCA 42; 197 CLR 162.
In relation to Count 2, I am satisfied beyond reasonable doubt that the complainant slept in the accused’s bed after the 21st birthday party and that the offence was committed.
In relation to Count 11, it was conceded the complainant slept in the accused’s bed. I am satisfied beyond reasonable doubt that the offence was committed.
In relation to Count 12, it was not conceded that the complainant slept in the accused’s bed. I am nevertheless satisfied beyond reasonable doubt that the offence was committed, in the accused’s bed.
The critical attack on Counts 13 to 17 involved the evidence concerning the model train set. I have very carefully considered the evidence concerning the model train set. The evidence is set out in this judgment, see in particular [640]-[658]. I find that the evidence concerning this issue does not leave me with a reasonable doubt. In other words, I am persuaded beyond reasonable doubt on the evidence in the prosecution case that the accused committed the offences alleged. In my view, the evidence was compelling.
In conclusion, in my view, all the elements of Counts 2 and Counts 11 to 17 have been proved beyond reasonable doubt.
Orders
I return the following verdicts:
· The accused is not guilty of Count 1.
· The accused is guilty of Count 2.
· The accused is not guilty of Count 3.
· The accused is not guilty of Count 4.
· The accused is not guilty of Count 5.
· The accused is not guilty of Count 6.
· The accused is not guilty of Count 7.
· The accused is not guilty of Count 8.
· The accused is not guilty of Count 9.
· The accused is not guilty of Count 10.
· The accused is guilty of Count 11.
· The accused is guilty of Count 12.
· The accused is guilty of Count 13.
· The accused is guilty of Count 14.
· The accused is guilty of Count 15.
· The accused is guilty of Count 16.
· The accused is guilty of Count 17.
· The accused is not guilty of Count 18.
| I certify that the preceding eight hundred and thirty eight [838] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Madeline Lehmann Date: 1 September 2021 |
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