R v GM - [2024] NSWDC 134

District Court

New South Wales

Medium Neutral Citation: R v GM [2024] NSWDC 134
Hearing dates: 6 March 2024 – 11 April 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The accused, GM, is found not guilty of Counts 1 – 45

Catchwords:
CRIMINAL LAW – Child sex offences -Multiple Counts- Four Complainants-Verdict – Judge alone trial

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)

Cases Cited:
Fleming v The Queen (1998) 197 CLR 250
The Queen v Bauer [2018] HCA 40

Category: Principal judgment
Parties: Rex (Crown)
GM (Accused)
Representation: Counsel:
Ms F Vella (Crown)
Ms M Cusack (Accused)
Solicitors:
Ms K Palenzuela (Crown)
Ms T Randall (Accused)

File Number(s): 2021/00112985; 2021/00348381; 2022/00057816
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material, that identifies, or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes.

JUDGMENT

On 6 March 2024, the accused GM was arraigned before the Sydney District Court and pleaded “not guilty” to the following counts, namely, that he,

between 30 April 2008 and 26 December 2008, at [redacted] in the State of New South Wales, did assault AR and at the time of that assault committed an act of indecency on AR, she being then under the age of 10 years, namely, 6 years of age, contrary to s 61M(2) Crimes Act 1900;

In the alternative to Count 1, between 30 April 2008 and 26 December 2008, at [redacted] in the State of New South Wales, committed an act of indecency with AR, a child then under the age of 10 years, namely, 6 years of age, contrary to s 61O(2) Crimes Act 1900;

between 30 April 2008 and 26 December 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with AR, a child then under the age of 10 years, namely, 6 or 7 years of age, contrary to s 66A Crimes Act 1900;

between 30 April 2008 and 26 December 2008, at [redacted] in the State of New South Wales, did have sexual intercourse with AR, a child then under the age of 10 years, namely, 6 years of age, contrary to s 66A Crimes Act 1900;

between 31 March 2009 and 1 June 2009, at [redacted] in the State of New South Wales, did assault AR and at the time of that assault committed an act of indecency on AR, she being then under the age of 16 years, namely, 7 years of age, contrary to s 61M(2) Crimes Act 1900;

In the alternative to Count 5, between 31 March 2009 and 1 June 2009, at [redacted] in the State of New South Wales, committed an act of indecency with AR, a child then under the age of 10 years, namely, 7 years of age, contrary to s 61O(2) Crimes Act 1900;

between 1 April 2009 and 25 December 2009, at [redacted] or elsewhere in the State of New South Wales, committed an act of indecency with AR, a child then under the age of 10 years, namely, 7 years of age, contrary to s 61O(2) Crimes Act 1900;

between 31 March 2009 and 26 December 2009, at [redacted] or elsewhere in the State of New South Wales, did assault AR and at the time of that assault committed an act of indecency on AR, she being then under the age of 16 years, namely, 7 years of age, contrary to s 61M(2) Crimes Act 1900;

between 31 March 2009 and 26 December 2009, at [redacted] or elsewhere in the State of New South Wales, did assault AR and at the time of that assault committed an act of indecency on AR, she being then under the age of 16 years, namely, 7 years of age, contrary to s 61M(2) Crimes Act 1900;

In the alternative to Count 9, between 1 April 2009 and 25 December 2009, at [redacted] or elsewhere in the State of New South Wales, committed an act of indecency with AR, a child then under the age of 10 years, namely, 7 years of age, contrary to s 61O(2) Crimes Act 1900;

between 1 December 2008 and 31 December 2008, at [redacted] in the State of New South Wales, did assault LP, and at the time of such assault, did commit an act of indecency on LP, a child then under the age of 10 years, namely, 6 years, contrary to s 61M(2) Crimes Act 1900;

between 1 December 2008 and 31 December 2008, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely, 6 years, contrary to s 66A Crimes Act 1900;

between 1 December 2008 and 31 December 2008, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 6 years, contrary to s 66A Crimes Act 1900;

between 1 December 2008 and 31 December 2008, at [redacted] in the State of New South Wales, did assault LP, and at the time of such assault, did commit an act of indecency on LP, a child then under the age of 10 years, namely, 6 years, contrary to s 61M(2) Crimes Act 1900;

between 24 December 2008 and 6 January 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely, 6 years, contrary to s 66A Crimes Act 1900;

between 24 December 2008 and 6 January 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely, 6 years, contrary to s 66A Crimes Act 1900;

between 24 December 2008 and 6 January 2009, at [redacted] in the State of New South Wales, did assault LP, and at the time of such assault, did commit an act of indecency on LP, a child then under the age of 10 years, namely, 6 years, s 61M(2) Crimes Act 1900;

between 24 December 2008 and 6 January 2009, at [redacted] in the State of New South Wales, committed an act of indecency towards LP, a child then under the age of 10 years, namely 6 years, contrary to s 61O(2) Crimes Act 1900.

between 1 January 2009 and 1 April 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 6 years in circumstances of aggravation, namely, at the time LP was under the authority of GM, contrary to s 66A(2) Crimes Act 1900; (amended on 11 April 2024)

In the alternative to Count 19, between 1 January 2009 and 1 April 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 6 years, contrary to s 66A(1) Crimes Act 1900; (amended on 11 April 2024)

between 1 January 2009 and 1 April 2009, at [redacted] in the State of New South Wales, did have sexual intercourse LP, a child then under the age of 10 years, namely 6 years, in circumstances of aggravation, namely, at the time LP was under the authority of GM, contrary to s 66A(2) Crimes Act 1900; (amended on 11 April 2024)

In the alternative to Count 21, between 1 January 2009 and 1 April 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 6 years, contrary to s 66A(1) Crimes Act 1900; (amended on 11 April 2024)

between 1 January 2009 and 1 April 2009, at [redacted] in the State of New South Wales, did commit an act of indecency towards LP, then a child under the age of 10 years, namely, 6 years, contrary to s 61O(2) Crimes Act 1900; (amended on 11 April 2024)

between 1 April 2009 and 19 November 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 7 years, in circumstances of aggravation, namely, at the time LP was under the authority of GM, contrary to s 66A(2) Crimes Act 1900; (amended on 11 April 2024)

In the alternative to Count 24, between 1 April 2009 and 19 November 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 7 years, contrary to s 66A(1) Crimes Act 1900; (amended on 11 April 2024)

between 31 October 2009 and 1 December 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 7 years in circumstances of aggravation, namely, at the time LP was under the authority of GM, contrary to s 66A(2) Crimes Act 1900;

In the alternative to Count 26, between 31 October 2009 and 1 December 2009, at [redacted] in the State of New South Wales, did have sexual intercourse with LP, a child then under the age of 10 years, namely 7 years, contrary to s 66A(1) Crimes Act 1900;

between 31 October 2009 and 1 December 2009, at [redacted] in the State of New South Wales, did attempt to have sexual intercourse LP, a child then under the age of 10 years, namely 7 years, contrary to s 66B Crimes Act 1900;

between 18 April 2009 and 19 April 2010, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, 7 years, contrary to s 61M(2) Crimes Act 1900;

between 18 April 2009 and 19 April 2010, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, 7 years, contrary to s 61M(2) Crimes Act 1900;

between 18 April 2009 and 19 April 2010, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, 7 years, contrary to s 61M(2) Crimes Act 1900;

between 18 April 2009 and 19 April 2010, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, 7 years, contrary to s 61M(2) Crimes Act 1900;

between 18 April 2009 and 19 April 2010, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, 7 years, contrary to s 61M(2) Crimes Act 1900;

between 19 April 2011 and 18 April 2013, at [redacted] in the State of New South Wales, did have sexual intercourse with BF without the consent of BF, knowing she was not consenting and in circumstances of aggravation, namely, that at the time of the offence BF was under the age of 16 years, namely, aged between 9 and 10 years, contrary to s 61J(1) Crimes Act 1900;

In the alternative to Count 35, between 19 April 2011 and 18 April 2013, at [redacted] in the State of New South Wales, had sexual intercourse with BF, a child then above the age of 10 years and under 14 years, namely between 9 and 10 years, contrary to s 66C(1) Crimes Act 1900;

between 25 May 2010 and 4 February 2014, at [redacted] in the State of New South Wales, did assault BF and at the time of such assault committed an act of indecency on BF, a child then under the age of 16 years, namely, between the ages of 8 to 11 years, contrary to s 61M(2) Crimes Act 1900;

between 18 April 2009 and 4 February 2014, at [redacted] in the State of New South Wales, did have sexual intercourse with BF without the consent of BF, knowing she was not consenting and in circumstances of aggravation, namely, that at the time of the offence BF was under the age of 16 years, namely, aged between 6 and 11 years, contrary to s 61J(1) Crimes Act 1900;

In the alternative to Count 37, between 18 April 2009 and 4 February 2014, at [redacted] in the State of New South Wales, had sexual intercourse with BF, a child then above the age of 10 years and under 14 years, namely between 6 and 11 years, contrary to s 66C(1) Crimes Act 1900;

between 14 March 2012 and 15 March 2017, at [redacted] in the State of New South Wales, did assault MC and at the time of such assault committed an act of indecency in the presence of MC a child then under the age of 16 years, namely, between 9 and 14 years, contrary to s 61M(2) Crimes Act 1900;

between 14 March 2012 and 15 March 2017, at [redacted] in the State of New South Wales, did commit an act of indecency towards MC, a person under the age of 16 years, namely, between 9 and 14 years, contrary to s 61N(1) Crimes Act 1900;

between 14 March 2012 and 14 March 2016, at [redacted] in the State of New South Wales, did commit an act of indecency towards MC, a person under the age of 16 years, namely, between 9 and 13 years, contrary to s 61N(1) Crimes Act 1900;

between 1 January 2014 and 31 January 2015, at [redacted] in the State of New South Wales, used a carriage service, namely, 'Snapchat' to transmit a communication to MC, and the communication included indecent material, and at the time the accused was over the age of 18 years and MC was under 16 years of age, namely between 10 to 11 years, contrary to s 474.27A(1) Criminal Code;

between 14 March 2014 and 15 March 2017, at [redacted] in the State of New South Wales, did assault MC and at the time of the assault committed an act of indecency on MC a child then under the age of 16 years, namely, between 11 and 14 years, contrary to s 61M(2) Crimes Act 1900; (amended 26 March 2024)

between 14 March 2014 and 15 March 2017, at [redacted] in the State of New South Wales, did have sexual intercourse with MC without the consent of MC, knowing she was not consenting, and in circumstances of aggravation, namely, that at the time of the offence MC was under the age of 16 years, namely, between 11 and 14 years, contrary to s 61J(1) Crimes Act 1900; (amended 26 March 2024) and;

In the alternative to Count 44, between 14 March 2014 and 13 March 2017, at [redacted] in the State of New South Wales, had sexual intercourse with MC, a child then above 10 years and under 14 years, namely, between 11 and 13 years, contrary to s 66C(1) Crimes Act 1900 (amended 26 March 2024).

General Directions

In accordance with s 133 of the Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law:

A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

I remind myself of the requirement to state findings on the main grounds critical to the contest between the parties and on which the verdict rests. In this trial, the critical issue is whether the complainants were accurate and reliable witnesses.
In my role as the judge of facts, I am able to draw inferences from the direct evidence from experiences had in my own life. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. Noting the requirement to be satisfied beyond reasonable doubt of the guilt of the accused, there is an additional requirement, among other things, to be extremely careful about drawing any inference. Any possible inference will be examined to ensure that it is a justifiable and rational inference in the circumstances.
I now direct myself to the burden of proof of the guilt of the accused. To prove the accused guilty of each count, the Crown must prove beyond reasonable doubt each of the elements of the offence in each count. That burden is placed squarely on the Crown and is in respect of every element or essential fact that makes up the offence charged. There is no stage where that burden is shifted to the accused to prove any fact or issue that is in dispute.
Beyond reasonable doubt are ordinary words that carry their everyday meaning, and that is how I understand them. If, at the end of my deliberations after considering the evidence and submissions made by the parties, I am not satisfied beyond reasonable doubt as to any one or more of the elements for a particular count, a verdict of not guilty must be returned.
I direct myself to the presumption of innocence. The accused is presumed innocent unless the Crown satisfies me that the accused is guilty beyond reasonable doubt.
The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I am satisfied the prosecution has proved each critical element of the offence charged beyond reasonable doubt. If the prosecution fails to meet that high onus, if I have doubts about their case on a count, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.
The accused gave evidence in this trial. He did not have to do that as he bears no onus, but the fact that he gave evidence does not alter the burden of proof. The Crown must prove the necessary elements of each offence and prove them beyond reasonable doubt. I will treat his evidence the same way as I treat the evidence of other witnesses. I can accept part of it and reject part of it.
Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a reason in the evidence for that outcome. If I entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that doubt must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally and when deciding whether or not there was a reasonable doubt about their evidence with respect to other counts.
As the prosecution depends on the accuracy and reliability of each complainant, I must carefully consider what each said and how it relates to the other evidence.
It would be wrong of me to conclude that the complainants are telling the truth because there is no apparent reason, in my view, for them 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. I cannot be satisfied that the complainants are telling the truth merely because there is no reason for them to have made up these allegations. There might be a reason for them to be untruthful that nobody knows about.
I direct myself in accordance with s 293A and s 294 of the Criminal Procedure Act 1986 (NSW).

Elements

Counts 1,5,8,9,11,14,17,29,30,31,32,33,36,39, and 43: Indecent assault person under the age of 16 years, s 61M(2) Crimes Act 1900

The Crown must prove beyond reasonable doubt three elements:

The accused assaulted the complainant named in the respective count; and,

at the time of that assault committed an act of indecency on the complainant named in the respective count; and

the complainant named in the respective count was under the age of 16 years.

Counts 2,6,7 and 10: committing act of indecency with another person under 10, s 61O(2) Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused committed an act that involved the complainant named in the respective count (AR) and that act was indecent; and

that AR was under the age of 10 years.

Counts 18 and 23: committing act of indecency towards another person under 10, s 61O(2) Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused did an act directed towards the complainant named in the respective count (LP) and that act was indecent; and

That LP was under the age of 10 years.

Counts 3, 4, 12,13, 15,16, 20,22,25 and 27: sexual intercourse with child under 10, s66A/s66A(1) Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused had sexual intercourse with the complainant named in the respective count; and,

that the complainant named in the respective count was under the age of 10 years.

Counts 19,21, 24 and 26: aggravated sexual intercourse with child under 10 under authority, s 66A(2) Crimes Act 1900

The Crown must prove beyond reasonable doubt three elements:

The accused had sexual intercourse with the complainant named in the respective count; and

that the complainant named in the respective count was under the age of 10 years; and

that the complainant named in the respective count was under the authority of the accused at the time.

To establish this, the Crown must prove the complainant was under his care, supervision or authority [whether generally or at the time of the offence].

Count 28: sexual intercourse with child under 10, s 66B Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused attempted to have sexual intercourse with the complainant LP; and

that the complainant LP was under the age of 10 years.

Counts 34,37 and 44: aggravated sexual assault, complainant under the age of 16, s 61J(1) Crimes Act 1900

The Crown must prove beyond reasonable doubt four elements:

The accused had sexual intercourse with the complainant named in the respective count; and

that the sexual intercourse occurred without the consent of the complainant named in the respective count; and

that the accused knew or was reckless as to the lack of consent of the complainant named in the respective count, and

that the complainant named in the respective count was under the age of 16.

Counts 40 and 41: commit act of indecency towards a person under the age of 16, s 61N(1) Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused committed an act of indecency towards the complainant named in the respective count; and

the complainant named in the respective count was under the age of 16 years.

Counts 35,38 and 45: sexual intercourse with a person between the age of 10 and 14, s 66C(1) Crimes Act 1900

The Crown must prove beyond reasonable doubt two elements:

The accused had sexual intercourse with the complainant named in the respective count; and

the complainant named in the respective count was then between the ages of 10 and 14 years.

Count 42: adult use carriage service to communicate indecent material to a person under 16, S 474.27A(1) Criminal Code Act 1995 (Cth)

The Crown must prove beyond reasonable doubt four elements:

The accused used a carriage service to transmit a communication to MC; and

that communication included indecent material; and

the accused was aged over 18; and

the recipient is someone who is, or the sender believes to be, under 16 years of age.

Indecent means indecent according to the standards of ordinary people

For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:

the recipient is someone who is under 16 years of age.

DEFENCES

Offences involving transmission of communication—belief that certain persons at least 16 years of age.

It is a defence to a prosecution for an offence against section 474.26, 474.27 or 474.27A if the defendant proves that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

13.4 A legal burden of proof on the defendant must be discharged on the balance of probabilities.

Agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW)

For the purposes of these criminal proceedings, the accused, upon the advice of his lawyer, and the Crown have agreed upon the following facts pursuant to s 191 of the Evidence Act 1995 (NSW):

The accused’s daughter is AM, born 12 June 2002.

In 2008, AM was a kindergarten student at [the local public school].

In 2015, she moved to [the local public high school] for year 7 and attended there until the end of 2017.

In January 2008, AR’s family purchased a house at [redacted address].
The family renovated the property and then moved into the house in May 2008. At the time, the accused was residing next door to AR’s house, with his wife, KG, and his daughter AM.
While AR’s family were completing their renovations, they became friends with the accused and his wife, KG, and AR became friends with the accused’s daughter, AM.
In 2008, AM, AR and LP were in the same combined Kindy/Year 1 class at [the local public school]. AR was in year 1, while AM and LP were in kindergarten.
At the end of 2009 just before Christmas, AR’s family and the accused’s family had a major falling out. AR never went back to the accused’s home after that.

In late 2008, LP was a kindergarten student at [the local public school] after moving schools from [another school].
In early 2011, LP started year 3 at a [different school] after she moved from [the local public school] at the end of year 2.

The complainant’s mother, KF/KS, and the accused’s wife, KG, had been close friends since they were 17 years old. In 2002, both KF/KS and KG were pregnant with their daughters at the same time.
BF, KF/KS, and her other children frequently socialised at the accused’s home on weekends and the families took holidays together.
In 2009, BF was in year 2 at [a different school to the local public school]. She was 7 years old.

In 2008, MC was a kindergarten student at [the local public school].
From 13 October 2008 until 27 April 2012, MC attended the [local public school].
In April 2012, she moved to [another public school].
In 2015, MC commenced at [the local high school], as did AM.

In 2016 TB’s father GB became aware of a Snapchat image sent to his daughter by the accused.
On 19 June 2017, GB was a participant in a meeting about the Snapchat message at [the local high school] with the then school principal and police officer Ashley Underhill who was stationed in their town at the time.
Officer Underhill noted that the incident was said to be at the end of school in 2016 and involved the accused sending a Snapchat post displaying an image of a penis to a group on Snapchat of which TB was a participant. TB told her mother shortly after.
At the time TB and her family did not want any further action taken and no statement was obtained.
It was indicated to Officer Underhill that the picture had been deleted due to the nature of the Snapchat application.
TB had no further contact with the accused subsequent to receiving the Snapchat post.

Accused

The accused resided at [redacted address] with his wife, KG and his daughter from around 2005. The accused and KG also had another daughter, SM, born 26 May 2010.
On 31 March 2009, there was significant flooding in their region. Both the accused’s property and AR’s family were located on the river in this region.
The accused’s house was affected by the floodwaters, causing him and his family to move out temporarily to accommodation near the local golf club.
In 2017, the accused’s residence at [redacted], burned down.
Shortly after, the accused and his family moved to Gold Coast.
The accused’s mobile phone number was [redacted] from 2015 until the time of his arrest in 2021.

Arrest

On 22 April 2021, the accused was served with a court attendance notice in relation to the allegations made by AR.
On 12 December 2021, the accused was arrested at his home in Queensland on an extradition warrant in relation to the allegations made by LP. He was bail refused at the Southport Magistrates Court and was extradited to NSW.

THE CROWN CASE

Evidence of AR

AR was born on 24 January 2002 and was 22 at the time she gave evidence in the trial. In 2007 she commenced at [the local public school]. She lived with her father, mother, older sister and brother. The family renovated their house before moving in. The accused lived next door. AR knew the accused’s daughter from school and would stay at her house before and after school. The accused would drive AR and his daughter to and from school. She would sit in the front seat.
One day, while at the accused’s house, he put the TV on. He then took her into his room. He began to touch her and got her to touch his penis. He got her hand and placed it on his penis. The accused’s daughter was still watching TV. After refreshing her memory from paragraph 7 of her statement dated 27 July 2020, she said that his penis was erect; (Count 1 and the alternative Count 2).
On another occasion, AR was sleeping over the accused’s house. She was asleep with AM in her bed. She woke up and the accused was between her legs. His head was in her genitals. He had his mouth on her vagina. He was moving his tongue around in her vagina. She rolled over and pretended she was asleep. AM remained asleep; (Count 4).
After refreshing her memory from paragraph 8 of her statement, she gave evidence that on one occasion she went to the accused’s bedroom. He touched her vagina on the bed. She did not recall what she was wearing. The accused removed her clothing. He tried to put his fingers in her vagina. She felt pain. His fingers were inside her vagina. She said stop. He stopped. She felt sore (Count 3).
AR recalled there was a flood on 31 March 2009. The accused and his family had to move out of their house because of the floods and go to alternate accommodation. At this new accommodation, on a weekday, she was playing in the living room with AM when the accused asked AR to go into the shower. He was outside the bathroom. She went to the bathroom, and he asked her to wash him. She washed his penis using her hand. His penis was erect; (Count 5 and the alternative Count 6).
Before the floods the accused’s family went away twice. The first time was a family trip to the Gold Coast. Her family was staying in a different hotel to the accused. On the first night she stayed with the accused, his wife and AM at their accommodation. AR and AM slept on separate single beds. AR woke up to a vibrating sensation on her vagina. She saw the accused kneeling next to her bed. It was a vibrator. It was small, the size of a lip balm. She was wearing pyjamas and undies. The vibrator was inside her underpants. She took it out of her undies. The accused took it off her and left the room. This is context evidence.
She stayed the next night with her parents at their accommodation.
There was a second trip to the south of their town. The accused, his wife, AM, her brother and other adults and children from the accused’s family went. She remembers staying in a cabin with other kids, including AM. It had bunk beds. She gave evidence that the accused woke her up and took her out of the cabin. She was not sure what happened. After refreshing her memory from her statement, she recalled the accused touched her vagina below her clothing and got her to touch him on the outside of his clothing. She could feel his penis. This happened outside; (Count 7 and the alternative Count 8).
There was an outdoor spa. She was in the spa with the accused and AM. It was daytime. The accused put her hand on his board shorts. She felt his erect penis. She tried to act normal because AM was in the spa. She did not want anyone to know she was embarrassed. Later on, the accused told her, “not to tell anyone and I would hate him when older”; (Count 9 and the alternative Count 10).
In 2009, AR and AM were in the shower. The accused asked them to get out. They did not. He got angry. He took AR out of the shower and told her she was a spoilt brat. She walked home crying. AR told her parents what happened in the shower. They (her parents) went over to talk to the accused. When they returned, they said she would not go over there again, and she did not.
The first person she told was her boyfriend, TC, in 2018. She was 16. She told him briefly, “things happened when I was little with my next-door neighbour”.
She told her sister, LR in more detail when she was 17. LR picked AR up from their parents’ house and told her about some of the incidents. They discussed it briefly at her sister’s house. It was more about how to tell her parents. They drove back to her parents. She went into her room and LR told her parents in the lounge room. Her parents came into her room, said sorry and her dad gave her a hug. She said it was not their fault. She says they did not speak about what happened to her in her room. It was only sometime after that her parents asked little bits about what happened.
She decided to go to the police, and tried, but she was not ready. She made a statement on 27 July 2020. She has made two further statements.
She gave evidence regarding a pretext call (Exhibit 2, 29 January 2021) and 22 pages of Snapchat messages (Exhibit 3) with the accused. No admissions were made by the accused in the pretext call.
At page 11 of Exhibit 3, the accused says:

“I have a lot of answers for you if we can get you to come up here at some point, I’ll pay for everything of course.”
She responded, “I don’t think I’d be comfortable to do that. I’m struggling now as it is, I just want to move on and get over it. Can you just tell me why you did it?”
The accused said, “sorry like I said I’m not sure who I’m even speaking to ATM and there’s legality issues if it will be more comfortable for you I can have them contact you and get that part of it sorted [emoji] again I have no animosity towards anyone especially you [emoji] the legals will supply you with a sum of money and a form to sign and this is a new account hence my saying I’m not sure who I’m talking to [emoji] but like I said only want to help you [emoji] .”

AR then sent the accused a photograph of herself. He opened the photograph and responded:

“I understand you want to clear things up and hopefully I can put something in place to clear it all up for you [emoji] nice pic [emoji].” He went on to say “can’t clear it up until the other parts sorted [emoji] sorry but have faith the future looks brighter. Oh eyebrows are on point [emoji].”
The accused in his next message says, “the money is just a helping hand, and the signature is so I can give you all the answers your after [emoji] like I said no animosity here just want to help and hopefully [emoji] we can all move forward.”

Cross-examination by Ms Cusack

She said that AM was a diabetic and either her mother or father tested her during the daytime. AR said she was not aware of KG testing AM at night time. AM was in kindergarten, and she was in year one.
She was dropped off at the accused’s house most mornings and would be taken back to their house from school most afternoons but not all afternoons. She specifically remembered some instances of the accused taking her to his room and asking her to touch him, not just general recollections or a jumble of incidents. She agreed AM has a big princess bed positioned flush to the wall. AM would always sleep on the outside of the bed.
She confirmed that she went away twice with the accused’s family. Once to the Gold Coast and the second occasion was somewhere south of where they lived. On the second occasion she stayed in a room with bunk beds. The accused’s sister was there with her foster children. She agreed with Ms Cusack that she could not remember anything happening in the cabin and that it was “jumping up and very disorientated,” and agreed that her memory was refreshed by her statement. She repeated that she had been woken up from sleep and touched on the genital region outside the cabin. In cross-examination AR initially repeated her evidence that the touching occurred outside the cabin. She then said she remembered telling police she was taken from the cabin to another room, and that was where the touching happened.
She remembered LP and BF being at the accused’s house, but she did not stay overnight when they were there.
She was asked about the Gold Coast trip. She said that she went there but was unsure what the occasion was for. She agreed her parents were staying at a different hotel but on the first night of the trip, she stayed with the accused’s family. It was put to her that she went there twice in that year, 2009. She disagreed. She did not recall going to the Gold Coast a second time, without her parents, with BF and the accused’s family, including AM. She could not recall going to Sea World or seeing LP on this trip.
She was shown a number of photographs (Exhibits A, B, C, D, E and F) and it was put to her that she went to the Gold Coast for a four-day holiday in October 2009 without her parents. She did not recall that happening. She was shown a photograph with her on a toy penguin. She maintained she did not have any recollection of the trip. She did not remember a trip without her parents. When asked why she could not remember this second trip, she said, “well, it’s a big thing when something happens to you one of the trips. And that’s the only trip I can remember.”
She was asked about her contact with LP. She said that she saw her in passing in their town and said hello but did not speak about what happened and denied discussing the case at all. She said she has had no contact with LP in the period after she disclosed the allegations to her parents and sister and before making her statement.
She denied being spoken to by her parents about bullying AM, the accused’s daughter. She denied being spoken to about telling other kids at school that AM was wearing pullups. She denied spreading the rumour that AM was wearing pullups. She told the parents that she was not saying that. She said, “I don’t even believe she was wearing a pull-up. I’m unsure about where that even came from.”
When asked about BF and LP having sleepovers around the same time frame as her, she said she remembered them being there sometimes, but did not recall them there when the ‘incidents’ occurred.
It was put to her that the spa was not working because the previous guests did something to it, and it needed to be cleaned out. She said, “no. I don’t remember that, because I remember myself in the spa.”
She was asked why she forgot one of the incidents when she gave evidence earlier. She said, “well, when you’re sitting in this room, talking about something that’s very emotional, it’s hard to remember everything.” She went on to say, “it’s very stressful in this situation. I’m not going to remember every fine detail.”
When Ms Cusack put to her that it appeared that she was using the floods as a timeline to remember the events, she conceded, “I’m just putting it in a timeframe because I don’t remember the exact dates.”
It was put to her that she complained to her boyfriend, TC in circumstances where they were at a party, and he was hanging around with his mates and not paying any attention to her. She said that they were not at a party, and she only told him briefly about what happened. The same year that she told her sister, LR. Initially she did not want the police to contact TC because she felt very uncomfortable about the situation.
AR said she did not tell her parents about what the accused was doing to her even after she told them about the shower incident, because she was very scared of what would happen. She said it is a very hard thing to tell your parents. She was asked about the delay in complaining to her sister, and said it was because she was petrified and scared.
In re-examination, AR said that she remembered going outside the cabin, and going into a room and she assumed that it was the accused’s family’s cabin. In that room, the accused touched her on the vagina and made her touch him on his genitals. She was asked why it was that she did not tell her parents. She responded, “because it’s embarrassing, and I don’t want to hurt their feelings.” She said she did not tell her sister for the same reason.

Evidence of LP

LP was born on 24 February 2002 (agreed facts) and was 21 at the time she gave evidence in the trial. When she was 6, in 2008, she was in kindergarten at [the local public school]. She lived at [redacted]. She left [the local public school] at the end of year 2 and moved to [another school] for year 3. When she was at [the local public school], she was in class with the accused’s daughter, AM. AR was in year 1, but was in their same composite class. LP became close with AM. They hung out during class, lunch and recess, but did not hang out outside of school until the end of kindergarten.
When they started to hang out outside of school, it would consist of LP’s mum or dad dropping her off at AM’s house. AM was a diabetic and could not come over to LP’s house. They may have had play dates in the morning, and she would leave in the afternoon. She said that in the school holidays, just before Christmas of 2008, she started staying overnight at AM’s house – either on a Friday or Saturday night. LP saw AM’s mother and father as having a guardian role over her when she stayed at their house. They would act as her mother and father, giving her food, or medicine if she needed it.
At AM’s house, there was a game room with a Wii console that they would play with a lot. They would also spend time in the garden, on the boat and fishing on the boat. Her, AM, and the accused would be on the boat.

2008 Christmas holidays

She recalled being at the accused’s house in the 2008 Christmas holidays, and the accused watching a football rematch at a bar they had outside. Her and AM were sitting in the lounge room watching a movie, and then they went to sleep in AM’s room. LP drew a diagram of AM’s room which became Exhibit 4. AM had a double bed. She gave evidence that it was in 2008, before Christmas, that the first incident occurred.
She remembers it happened before Christmas of 2008 because afterwards, she went to the accused’s house for Christmas, which was in the middle of the week, with her mum, dad and brother, BP. Her family left but she stayed at the accused’s house. She remembered being asleep in bed with AM. She was wearing a nightie dress and underwear. She woke up to the accused pretty much lying on top of her right up near her shoulder. His whole body was on one of her legs. He started to pull down her underwear. She asked him not to and tried to pull her underwear back up. He told her “I don’t know how you sleep with your underwear on it’s unhealthy.”
He then started inserting his fingers in and out of her vagina, which caused quite a level of discomfort, and kissing her on the neck area, including her chin and cheek. She does not know what was happening when he was inserting his finger in and out of her vagina; (Count 11 and the alternative Count 12). He then pulled down her underwear to her knees, went down and used his tongue on her vagina. He licked and stroked her vagina with his tongue; (Count 13). He then stood up and undid the laces on his shorts which she says were of a board short type material. She said that “his penis was, hard, like, erect.” He used his penis to rub the outside of her vagina; (Count 14). She tried to wake AM up and started to cry. The accused got up and said, “please don’t cry this is normal for boys and girls.” He then did the laces on his shorts, she pulled her pants up, and he kissed her and AM on the lips and then left.
The following morning, AM’s mother came and took AM outside the room to do her daily blood sugar test. The accused came into the room and told her not to tell anyone about this, because “you won’t have a mum and dad.” She did not say anything to her parents because she was afraid that she would lose her mum and dad, because of what the accused said.

Weekend after 2008 Christmas holidays

The second incident occurred when she was staying overnight at AM’s house. Her and AM played, swam in the pool and then did their usual night time routine, which was showering, having dinner, and then going to bed. She slept on the wall side of AM’s bed. She woke up to the accused on top of her. He pulled her underwear down to her knees and inserted 2 or 3 fingers in her vagina, moving them in and out; (Count 15) He then licked her vagina for what felt like 3-5 minutes; (Count 16). He pulled down his shorts, took out his penis and started rubbing it on the outside of her vagina; (Count 17). She said he only ever pulled down his pants enough to take his penis out. He then knelt on the end of the bed and rubbed his penis back and forth. He ejaculated into a towel that he brought with him. She saw a liquid like substance come out of his penis that night, which went into the towel; (Count 18). She tried to wake AM by tapping her shoulder, but the accused would grab her arm and put it back to her side. He eventually got up went back to his room.
She saw AM take a tablet before bed at night.
When she was staying overnight at AM’s house, sometimes BF was also sleeping over. When they were both sleeping over, either LP or BF would sleep on a single bed that was pulled out from under AM’s bed. LP says none of the incidents involving her occurred when BF was in AM’s room.

After the floods in March 2009

After the floods which took place between 31 March and 1 April 2009, the accused’s family had to stay at cabins at the local golf club. Sometimes she stayed overnight at the cabins and she would go over for play dates.

Sleepover for AM’s birthday in 2009

She believed AM’s family moved back to their house just before AM’s birthday in 2009, which she believed to be in July. She remembers celebrating AM’s birthday that year by sleeping over at AM’s house on Thursday, Friday and Saturday night. AM had asked her to stay. Her mother dropped her off at school on Thursday. The accused and KG picked her up from school and took her to their house. There, they swam, went up the river, checked on some crab pots and found some crabs which they ate for dinner. LP could not eat the crab because of her shellfish allergy, which made the accused agitated and angry. LP and AM were sent to bed early.
On Friday morning, KG packed lunch for her and AM. She remembered there was a sandwich, box of juice, packet of chips and muesli bar. She did not eat all her lunch because she was not hungry. When the accused picked AM and LP up from school, AM told him LP did not eat all her lunch. LP said she was not hungry. The accused said something to the effect that he would deal with LP later. When they got home, they played and swam in the pool and then went to sleep in AM’s bed. LP woke up to the accused crawling onto the bed. He tried pulling her underwear down. She tried to pull it back up, but he told her to stop being disrespectful. She felt scared. The accused inserted 3 or 4 fingers in her vagina; (Count 24 and the alternative Count 25). She felt quite a bit of pain and discomfort. She told him to please stop or that she did not like it. He did not respond. She told him that it was hurting her. He did not stop or reply. She says that this went on for about 5 minutes. Then the accused got up, told her that she will learn not to be disrespectful or rude, and left. She was crying and distressed. She pulled her underwear back up. The next morning, she felt quite a bit of pain and felt a burning or stinging pain when she urinated.
Saturday was AM’s birthday party. She recalled there was a number of kids from school, including AR and BF. She was one of the last kids to leave. Her parents picked her up. LP did not speak to the accused.

Gold coast trip

LP remembered going to Queensland with her mum, dad, brother and the accused’s family in the first week of October. She recalls only one trip to the Gold Coast. She recalls KG, AR and BF also being there. LP’s family was staying in a different hotel to AM’s family. AR and BF were staying with AM’s family (cf AR’s evidence that AR’s family were in their own hotel – and she only stayed the first night with the AM). She recalls going to Sea World and the Australian Zoo twice with AM’s family and then going to Movie World only with her family. LP provided a bundle of photographs of this trip which became Exhibit 5. LP said she got these photos from her mother and father’s computer by saving them on a hard drive and giving them to Detective Wallace.
LP’s mother and KG would take photos and exchange photos via text messages, post photos and share each other’s photos on Facebook.

November 2009 – last time sleeping over at accused’s house

She recalls an incident occurring on a Saturday in November 2009, before her mother’s birthday on 19 November. LP gave evidence her father dropped her off on his motorbike to the accused’s house. She felt motion sickness after this ride and was still sick at dinner. She and BF were staying overnight. Her, BF and BF’s two brothers were watching a movie in the loungeroom.
Because there was not much room, the accused set up a blowup mattress in the middle of the loungeroom. LP and the accused were lying together on the blowup mattress watching a movie, and everyone else was on the large L-shaped lounge. She says she fell asleep and remembered waking up to the accused standing next to the mattress, taking his pants off. He pulled her shorts and underwear down to her ankles and pushed her legs apart forcefully with his hands. His penis touched the outside of her vagina; (Count 28). He was holding it and trying to put it in her vagina. He did not insert it into her vagina. She told him to stop and that she felt sick. A light came on down the hallway and the accused jumped off the mattress, put his clothes back on and walked away.
She thought he went to the ensuite bathroom in his and KG’s bedroom. She pulled her underwear and pants back up and went to KG’s room. She told KG she was sick and wanted to go home. KG asked her why and she said she felt like she was going to spew. KG contacted LP’s mother. LP’s mother and father came to pick her up and took her home. She says she spewed all through the back of the car. She does not recall sleeping over at AM’s house after this incident.

January 2010

She recalled spending a day at the accused’s house after her biological father, who was living in Darwin, died in January 2010. She says at some stage that day, her and the accused were in AM’s bedroom alone and the accused told her she no longer had a dad to protect her.

Complaint

The first person LP told about the allegations was her mother, in October 2021. Her mother called her while she was on a break at work and asked when her next day off would be. She asked why, and her mother told her that two detectives needed to talk to her. When she asked why, her mother said it was in relation to the accused. She asked what about the accused. Her mother said she could not say. LP began to cry and told her mother that she had let her mother and father down and her mother would be disappointed in her, because they were very close and used to talk about everything. She believes her mother asked her if the accused ever did anything with his penis and she responded “no.” When she got home, they did not speak about details, and she just gave her mum a hug. They said they were there for her, and her mother told her the detective, Amanda, needed to organise a day for LP to come in. She did not speak to anyone else about the incidents before she made her statement on 27 October 2021. She had a support person present when she made her statement.

After Christmas 2008 and before the floods in March 2009 – BF present during incidents involving LP

LP later gave evidence that she did remember BF being present during one of the incidents. She remembers sleeping on a single bed on the floor of AM’s room after Christmas and before the floods. BF and AM were sleeping on AM’s bed. She woke up to the accused on top of her. He kissed her neck and then inserted his fingers in and out her vagina; (Count 19 and the alternative Count 20). He then used his tongue on her vagina; (Count 21 and the alternative Count 22). He then got up and left, but then after refreshing her memory from her statement, her evidence was that the accused got up, rubbed his penis back and forth with his own hand and ejaculated into a tissue that he got from AM’s beside table; (Count 23).
LP also recalled an occasion where the accused smacked her on the bottom. Someone had clogged the toilet that night. The accused came over, grabbed her arm, dragged her into the main bathroom and told her that this was her fault. He turned her around, smacked her on the bottom and told her to go back to AM. This is uncharged context evidence.

Cross-examination of LP

LP was asked about the pictures from the Gold Coast trip (Exhibit 5). She agreed AR was in each of the pictures, and that AR was staying with the accused when they were at the Gold Coast.
Regarding the photographs on her mother’s computer, she agreed there were thousands. Her mother has different folders for each iPhone backed up on the computer – iPhone 1 and iPhone 2. It was difficult to find them. Her evidence was that on the first day of making her statement, 26 October 2021, which took two days to make, she told Amanda (Detective Wallace) that she had school photos and photos from the holiday, and Amanda told her to bring them in the next day, and she did. She denied the suggestion that she gave the photos to Detective Wallace on the first day of the statement.
She was then shown Exhibit 5 and taken to the first photograph which was taken on or about 28 March 2009, which she said in her statement had been taken after she stayed in the accused’s golf club cabin. It was put to her that the flood occurred on 31 March 2009, so she could not have been at the cabin. She agreed.
She said what she told police about staying at the cabin more than once was correct, and that her and BF had only stayed together at the cabin on one occasion.
She agreed she had no problems telling her mum about the accused scaring her in the car but said she did not tell her mother what was going on because she was 7 and did not know what was going on. She agreed she did not like what the accused was doing, and that she felt scared, but said she was more scared of the accused’s threat that she would not have a mum and dad anymore. She only told her mother about the driving because she thought the accused was going to be angry at her mother.
It was put to her that none of the events recited in her evidence in chief occurred. She said they did.
When her and AM were in kindergarten, she would not associate with AR (who was a year older but in their composite class), but AM would. She did not recall AR staying over at the accused’s house often. She agreed BF and her mother would be there, often on weekends. She did not have a memory of AR staying over, but remembered BF’s family staying over, including her two brothers.
Ms Cusack then took LP to her statement where she said she would sleep on a trundle bed if AR and BF were also staying, in light of her evidence that she had no memory of AR staying. LP then said that when she made her statement in 2021, she remembered AR staying over with her on 2 occasions. She said BF would only stay through the week. She disagreed with the proposition that BF would mostly stay on the weekend, at the same time as her.
She said she never went to AM’s house before school, but sometimes her mother would drop her off to AM’s house after school. Organised play dates were always on a Friday or Saturday.
LP said she only stayed overnight at the accused’s cabin after the flood once, but she went there multiple times for play dates. It was put to her that AM’s birthday party happened in 2008. She denied the suggestion and said that she remembered AM getting a lot of new things for her room because they just had the flood and she lost everything. She said the accused’s family moved back to their house after the flood roughly around the time of AM’s birthday. She was not invited to a birthday party the previous year. There was only one birthday party which included a lot of kids.
LP said she pulled back from her relationship with AM after they came back from the Gold Coast holiday in October 2009, but before November 2009. She started to make friends with other people and did not see her as often on weekends, whereas before she was at the accused’s house virtually every weekend. She started to become friendly with AR after pulling back from AM. She also agreed she was close to AR at the beginning of 2009 and that she was still friendly with AM in January 2010.
She did not see AR at AM’s house after the Gold Coast holiday. She could not recall seeing AR at the cabin at all (after March 2009). The only occasion she saw AR at the accused’s house was at AM’s birthday party after the floods.
It was put to her that she had described an incident to police where BF was present, and it was fairly significant that she did not remember BF being present initially when giving evidence (she later recalled after viewing her statement) to which she agreed. Ms Cusack suggested she did not remember because the incident did not happen. She said that it did happen. She also disagreed with Ms Cusack that there was no pull-out bed in AM’s room when she stayed over.
It was put to her that she only became friends with AM and began to stay overnight at her house at the end of 2009, not 2008. She said, “It was 2008. I was in kindergarten.” She agreed that she had not found any photographs of her or AM during 2008.
She agreed she was friends with AR on social media but has not seen her around town or said hello. She knows what AR looks like from social media. She has never directly messaged AR on social media, and they have not spoken about the allegations. She says she does not know anyone involved (in this matter), and the police officer (Detective Wallace) told her she was not allowed to ‘name names.’ She said police asked her if anyone else stayed at the accused’s house, and she told them she had met two girls (AR and BF) while staying there.
When asked about ejaculation, she said she was generalising because the second time the accused ejaculated, he used a tissue and the first time, either a tissue or a towel. She was then referred to her statement where she had said the second time, he had used a towel, and the first time, a tissue or a towel. She said that the first time she made her statement, she could not remember whether the accused used a towel or tissue the second time he ejaculated and agreed a number of her allegations were generalised.
She said she has had no contact with BF, including social media and no contact with the complainant MC.
In re-examination she was referred to what she told police about the accused ejaculating into a tissue or a towel. She said she now had a memory of the accused using a towel.

Evidence of MC

MC was born on 14 March 2003 and was 20 when she gave evidence in the trial. She attended kindergarten at [the local public school] in 2008. She was in class with AM. They were friends. The friendship extended outside of school when they started doing tennis lessons together, maybe around year 2. She began going over to AM’s house for play dates around year 1 or year 2. The accused picked them up after school.
She started staying overnight in year 2 or 3, usually on a Friday night right after school. She met BF who also stayed over AM’s house. MC would sleep in AM’s bed in the position closest to the wall and AM would sleep closest to the bedroom door. When BF stayed with them, BF, MC and AM would all sleep in AM’s bed. MC recalled AM’s younger sister, SM was born at the time she started sleeping over at their house.
MC drew a diagram of AM’s bedroom which became Exhibit 7. She also spent time in the garage of the accused’s home, which had a fairly large bed and couches. The diagram MC drew of the garage became Exhibit 8.

In year 4 MC moved from [the local public school] to [another school].
She would usually sleepover at the accused’s house on the weekend and her mother would pick her up on a Sunday. She would catch the bus to AM’s school and then she would be picked up or get dropped off near AM’s house.

Count 39 and 40

She recalled the accused coming into AM’s bedroom where she was sleeping. She was asleep on the wall side of the bed. He stood with one foot in between the gap of the bed and the wall, and his other leg was on the bed. He was pleasuring himself, stroking his penis. She believes there was a bathroom light on or some light towards the hallway. He continued touching himself for about 5 minutes. It did not stop so she turned around and pretended to be asleep. He touched her leg, and she turned around. AM was still asleep next to her.

Count 41

MC gave evidence she was seated on the edge of AM’s bed, facing the door, which was opposite to the bathroom. The bathroom was open enough for her to see inside. She saw the accused stroking his penis and videotaping it. she thought this was gross and shut AM’s bedroom door.

Context evidence

MC and BF were in the garage. MC says the accused walked in and said, “you guys should kiss”. She felt compelled to kiss BF because the accused was an adult and she saw it as just a kiss. MC and BF pecked on the lips. The accused saw this from the stairs. He was laughing. He said “No, stop, like a real kiss.” MC and BF then tongue kissed. After they pulled away the accused stood there then walked away. They did not tell AM about the kiss.

Count 42

When Snapchat came out, the accused sent her a friend request. She was in year 3 or 4. One night, she was staying at AM’s house, and the accused was in the bathroom when she received a video depicting him stroking his penis in the shower. She was able to identify this as the accused because of his big gold bracelet, a watch on his left hand, and multiple rings on his fingers and the shower layout. She responded to the video, saying it was gross. He said it was normal.

Count 43

MC recalled an incident where the accused was picking her and AM up under the arms and throwing them into the deep end of the pool at the accused’s house. They would have their backs to him when he was throwing them. She said that when he was lifting her up, the accused went inside her swimmers, near her bottom and vagina. She said as he was throwing them, his hands would go lower to have more momentum when throwing them.
When he would throw her, he would start from her armpits and then make his way down her body, to her hips and then throw her. As he was throwing her, he went inside her swimmers and touched her bottom and vagina. He put 2 fingers inside her vagina. This hurt her. The other hand was on her hip when his fingers were in her vagina. He removed his fingers and launched her into the pool. She swam to the other end and got out. Her mother picked her up that afternoon. Her vagina and the area around it felt sore. She thought she may have been getting her period for the first time. After refreshing her memory from her statement, she remembered she was bleeding which also made her think she got her period.

After the incidents

She still stayed over the accused’s house after this incident but not as much as before. When she slept overnight and BF was also there, she would sleep in the middle of AM and BF because she did not know what else the accused would do.
MC knew FH, who went to school with her after she moved from [the local public school]. MC introduced FH to AM. MC and AM went to the same high school. She knew AR, who was AM’s next-door neighbour, but was not in any classes with her and believed she was a year older. She knew LP but did not spend time at AM’s house when LP was there. MC did not spend time at AM’s house when AR was there.
She was shown a picture taken in Sydney of herself, her brother and her cousins, which became Exhibit 11. She provided the picture to police and said that it was taken after the incident with the accused in the bathroom; (Count 41) and the first incident in the bedroom; (Counts 39 and 40).

Complaint

The first person MC told about what happened at AM’s house was a detective in 2020. She told her roommate CW that the accused touched her when she was young, but she could not remember what she said word for word and did not explain the details. This conversation occurred right before the second COVID lockdown. CW encouraged her to tell her mother and police. She did not tell her mother because MC was living in Sydney and her mother was still living in their town, and she believed this was a conversation to have face to face.
Her evidence initially was that she spoke to police prior to speaking to her mother. She refreshed her memory from her statement, and then said that she spoke to her mother prior to police. Her mother called her and asked if there was anything she needed to tell her. MC realised right away that CW had told her mother. She told her mother that the accused touched her when she was younger. She had not made a decision to tell police, but they contacted her, and she assumed her mother had told them something.
MC gave evidence that around October 2017, AM’s house burnt down, and after that the family moved away from the town. A few months before the house burnt down, she was not speaking to AM at school much and was not speaking to her online. It was probably May 2017 that MC stopped visiting her at her home.

Cross-examination of MC

She agreed that she went on two cruises with the accused’s family in 2014 and 2016. The cruises were with her family. She did not remember BF’s family being on the cruise.
MC said that the first time she remembers something happening with the accused was after AM’s sister SM had been born.
She had a recollection of BF’s brother sleeping overnight at the accused’s house once or twice. She did not have a recollection of BF’s mum staying overnight.
MC was taken to paragraph 20 of her statement where she had said “[the accused] was on my side of the room between the wall and the bed. He was kneeling on the floor and had his right leg up”. It was put to her that she did not mention to police that the accused was standing on the side of the bed, with his leg on the bed, as she had in her evidence. She agreed that she described him as kneeling to police, and went on to say, initially, whether he was standing or kneeling, it was dark and either way he did have one leg up. She also said, “maybe he was lying onto the bed, maybe I misworded what I had wrote on the statement, but he definitely had his leg up on the bed.”
She was asked whether she had a clear recollection or a “hazy, dream-like memory” of that particular bedroom incident. MC answered, “no, I do remember waking up feeling quite startled because I haven’t had that happened before. There was a light from the hallway where I think it was the hallway or the bathroom, but I could see what was happening”.
She disagreed with the suggestion that she did not start staying overnight until year 6, saying it was definitely during primary school.
Regarding the bathroom incident, she disagreed with the suggestion that she could not see the bathroom door from AM’s bedroom, only a bit of the door, but not the actual bathroom itself. MC said that it was, “straightaway directly opposite. The door was wide open, I could see what was in the bathroom,” which was the accused masturbating himself for about 2 or 3 minutes.
Regarding the Snapchat video, MC said it was sent between 2014 and 2015. She recognised it as the accused because he was the ‘sender’ and also because of his jewellery. It was put to her that the accused had sent a rude meme to a number of people on Facebook in 2016. She did not recall receiving it. She disagreed that the only time she received an inappropriate video from the accused was on Facebook in 2016.
MC confirmed that as of June 2016, she was not really friends with AM anymore, and it was around that time that the pool incident occurred. After this incident she stopped going around and nothing else happened. She said that by around 2017, when the accused’s family moved, she was no longer friends with them.
MC agreed the pool incident occurred in 2016, when she was 13, turning 14. When asked if she had her period when she was 10 or 11, she said she had it when she was quite young, but she could not remember the exact age. MC was taken to her statement where she had described putting her feet on the accused’s knees, and him launching her into the pool from there. Later in evidence, MC said she was standing on the ground. She went on to say that it was “hard to say because I was always swimming in different ways. But from what I can remember I was standing on the ground.” When asked why she told police she was on the accused’s knees, she responded that at that time, she was still thinking about what happened, and maybe had misspoken when she gave her statement. She was not thinking about whether she was sitting or standing. It was put to her she made up the business about standing. She disagreed and said she had just forgotten the minor details of whether she was standing or sitting.
Regarding the kissing incident in the garage, she agreed that she had not mentioned to police that the accused asked them to do a ‘real kiss.’ She disagreed with the suggestion that she had just added this detail in her evidence, but agreed the day she gave her evidence was the first time she mentioned or remembered he told them to go further. MC said that the accused definitely told them to kiss and did go further by asking them to make out, which was not mentioned in her statement. She said it had been 2 years since she made her statement and since then she has had time to think about situations. She agreed she was confused about what happened. She said, “I guess it just felt wrong, but I wasn’t sure. I was young.”
She did not tell her friends about what happened even when they were telling her about their first sexual experiences, because she felt embarrassed and scared.
She agreed the accused made no threats. She agreed she had a close relationship with her mother. She agreed she had counselling before she made her statement in February 2022.

Evidence of BF

BF was born on 19 April 2002 and was 21 when she gave evidence in the trial. She attended another public school from AM from kindergarten to year 6, and then went to [the local high school] with AM. She knew the accused’s family since she was a baby through her mother’s friendship with KG. She was 3 months apart from AM (2 months in the agreed facts). She would spend almost every weekend with the accused’s family.
She was 6 or 7 when the sleepovers started. She would mainly sleep in AM’s bedroom, but they would also sleep in KG and the accused’s bedroom or the playroom. When BF slept in AM’s bed, she would always sleep closest to the wall. There was a gap of about 30cm between the bed and the wall.
Before SM was born her bedroom was a playroom. After SM was born, they turned the garage into a playroom. BF drew a diagram of AM’s room which became Exhibit 13. Her diagram of the accused’s house became Exhibit 14.
FH would also have sleepovers at AM’s house when BF was there. BF was about 14 or 15 when FH slept over.
The accused’s dining room had a long table with 6 chairs. One half of the dining table was used for the kids to eat on, and the other half had two computers, one for the accused and one for KG, which they would play with. BF said her and AM were also able to play on the computers.

Count 29, 30 and 31

BF said she went to bed in AM’s room, wearing a blue Cinderella nightie. AM later woke her up to go sleep in the accused and KG’s room, and they did. BF was sleeping in the middle next to the accused, AM was next to her, and KG was on the other side. The accused was wearing a white robe and Bulldogs boxer shorts. She woke up to the accused pressing his penis against her bum area; (Count 29). The accused guided her hands towards his penis and had her masturbate his penis without ejaculation; (Count 31). She did not recall how the episode ended. She just went to sleep. She went between KG’s legs and curled up into a foetal position.
She later refreshed her memory from paragraph 15 of her statement dated 21 December 2021, and gave evidence that the accused rubbed her vagina before moving her hand to his penis. She could not remember whether the rubbing was over or underneath clothing; (Count 30).

BF relation to other complainants

BF knew AR. AR would also stay at AM’s house when BF was there, and all 3 of them would sleep in AM’s bed. She did not recall anything happening when AR was there.
BF knew LP through the accused and KG. LP was also there when BF was sleeping over, and they would all sleep in the playroom or in AM’s bed.
BF recalls going on the trip to the Gold Coast with KG, AM and the accused. She stayed at a hotel with AM’s family and AR. She did not recall her mother or brothers being there. She remembers LP on the trip, but LP did not stay with the accused’s family. She said nothing happened to her on the Gold Coast trip.

Count 32 and 33

BF was using KG’s computer. KG had gone to bed. On this occasion she believed she was about 7 or 8. The accused asked her to sit and look at his pets (a computer game) on the computer. The accused rubbed her chest area, above her clothing; (Count 32). He rubbed her vagina above her clothes; (Count 33). This occurred more than once, and there was one specific occasion where the accused touched her below the clothing.

Count 34 and 35

BF recalled that she was spending almost every day of the Christmas holidays with AM. On one occasion during this time, she was seated on the dining table watching the accused play Facebook games on the computer. He was wearing a white robe. He told her to come over. She sat between his spread legs, not on his lap. He started to rub her body. Eventually she felt his penis on her back. It was erect. He rubbed her vagina under her clothes and inserted his finger in it. She felt that he was doing a circular motion with his finger inside her vagina. This is the only time she recalls he inserted his finger into her vagina.

Count 36

BF gave evidence that her and AM were asleep in the garage, which was used as a playroom after SM was born. AM was asleep on one of the beds, and BF was asleep on one of the blue lounges. She was around 9. She woke up to the accused’s penis in her face. She was laying down and his penis was level with her head, just under her eye. His penis was erect, and he was naked. She turned over to face the back of the lounge and pretended to be asleep. She felt his penis on her back. BF says a woman came in and whispered, “what are you doing?” She believes it was KG, but never saw who it was.

Count 37 and 38

BF was in primary school when she had woken up in AM’s bed, possibly around the early morning. AM was not in her bed. She cannot recall if she was wearing undergarments. The accused was in the room, wearing a robe. He sat on the bed. He put his hand underneath the doona. The situation ended up with the accused licking her vagina, under the clothes. She felt the tip of his tongue on the outside of her vagina, not inside, going around in circles, a flicking sort of feeling.

After the incidents

The accused stopped touching her when she started high school, when she was aged 11 or 12.
There was an overlap of AR and LP staying at AM’s house. AR stopped coming over after SM was born, but she continued to see LP at the accused’s house. She knew MC. They slept over at the accused’s house together. MC was around the accused’s house for several years before she stopped visiting. She believes MC’s visits dropped off when MC and AM started high school.
BF last spoke to AM in January 2023. KG texted her for her 21^st birthday but she did not respond. She received a message from the accused in October 2021. The last contact was in October 2021, they exchanged affectionate messages. She described her feelings towards the accused in October 2021 in the following terms, “he’s been a father figure all my life. Besides everything, I did at that time love him like I would a father.” When asked if she had any other feelings about the accused at that time, she said:

“I have always had thoughts or sickening thoughts that I thought like that are sickening thought why are you having those thoughts where what I’m talking about today and I just thought there was something wrong with me of why I would think that about him.”
(Transcript 15 March 2024, p 315(26-19))

She went on to give her statement to police in December 2021.

Complaint

BF received a call from her mother when she was leaving the gym. Her mother asked her if she was sitting down, and that she had something to tell her. She thought it was about her Nan passing away. Her mother told her to promise not to tell anyone, but she did not promise. Her mother told her that the accused had been arrested for molesting a young girl, who was AR. Her mother told her the specific allegations (licking) by AR. Her mother asked her if she had been touched, and she burst into tears and said “maybe.” Her mother asked her why she said maybe. She responded, “because I was just so afraid that I was just I was just like maybe like I didn’t want mum to feel like it was her fault or anything like that.” She told her mother that:

“for so long I’ve had these disgusting thoughts in my head… These dreams and I just thought I was a sicko thinking that about my godfather and I said and it just feels like such a relief to know I’m not sick in the head and that those it was like validation that those weren’t just things that I thought happened like I know they happened and I had that validation.”
(Transcript 15 March 2024, p 316(29-36))

BF evidence regarding MC pool incident

BF recalls there was a family barbeque at the accused’s house. MC, FH, and AM were there also, playing in the pool. The accused came into the pool and the girls gravitated towards him to splash him and be silly. BF was at one end of the pool wearing goggles and she remembered the accused did a sort of backward swipe towards MC’s vagina.
BF had a specific memory of the accused groping her own vagina in the pool, over her swimmers. She had a specific memory of the accused groping MC also. BF was wearing goggles and saw the accused quickly groping MC’s vagina from the other side of the pool.

BF seeing the accused in the bathroom

BF said the bathroom in the accused’s house was directly across from AM’s room. The accused would always leave the door semi-ajar when they were in there and he was having a shower. He would get naked and stare at her and then close the door.

Cross-examination of BF

BF agreed that she sent an email to Detective Wallace on 3 January 2022 indicating that she tried to jog her memory and could only just remember vivid memories and nothing that could be used properly.
She believes that the Gold Coast holiday was for AM’s birthday, and that she was in primary school at the time. She did not remember a birthday party for AM with a number of kids in kindergarten.
She was asked, in relation to her dreams about the accused:

“Q. Was it like you had a dream? Like you thought they were dreams.
A. I thought they were dreams. I didn’t know if they were real or not.”
(Transcript 15 March 2024, p332 (20-21))

BF was asked about whether the licking of the vagina episode was like a flashback with some sort of dream-like sequence. She said that a flashback was a good way to describe it. She also said that she used the expression “I feel like this was happening” when describing the licking incident, not because she was not sure that the incident happened, which she was sure about, but because she was not sure about “the situation, or whether it was day or night.”

The accused said to her, “don’t tell anyone about this”, or “you can’t tell anyone about this, because you won’t have a mum and dad”. She did not tell her parents what happened, “because of what [the accused] said to me. I was afraid of losing my mum and dad” (Transcript 7 March 2024, p121-122).
In January 2010, LP’s biological father passed away. He was a police officer. She went to the accused’s house that day with her brother. She was in AM’s bedroom alone with the accused when he said to her, “you no longer have a dad to protect you anymore” (Transcript 7 March 2024, p143-144).
The complaint was delayed. I direct myself in accordance with s 294 of the Criminal Procedure Act that the delay in complaining does not necessarily indicate that the allegations are false. I consider that there may be good reason why a victim of a sexual assault may hesitate in making a complaint. The good reasons in this case are her age at the time of offending, the relationship she had with the accused’s daughter and what was allegedly said by the accused to her.
I consider the evidence of complaint in two ways. Firstly, it strengthens the credibility of the complainant and secondly it may be used in proof of an offence.

Criticism of LP’s evidence

LP was a child when the events took place. She was certain Christmas fell mid-week. Ms Cusack says children of that age when on holidays have no idea what day of the week it is. There is some merit in that submission. She makes further criticism of LP’s evidence. LP gave evidence of the contents of a lunch box packed by the accused’s wife, which consisted of a packet of chips, muesli bar, a sandwich and a pop-up. It was this lunch and the failure to eat all of it that resulted in the accused saying, “don’t’ be disrespectful” and Counts 24 and 25 occurring. Ms Cusack says a child years later would not be able to say precisely what was in her lunch box. This criticism fails to consider firstly, that this is the only time the accused’s wife packed a lunch for her and secondly, the failure to finish the contents resulted in digital penetration which hurt her, causing pain. In applying my common-sense I do understand how such a traumatic moment would result in recollection of what was in the lunch box.
She further criticised the complainant’s evidence as general and repetitive.

Counts 11,12,13 and 14: assault with act of indecency contrary to s 61M(2), sexual intercourse contrary to s 66A (digital), sexual intercourse contrary to s 66A (cunnlingus), assault and commit an act of indecency contrary to s 61M(2).

LP gave evidence the first time anything occurred was before Christmas 2008. She was in bed with the accused’s daughter AM. She went to bed with a nightie dress on and underwear. She woke up and the accused was lying on top of her. He started to pull down her underwear. She asked him not to and attempted to pull it back up. He said to her, “I don’t get how you sleep with your underwear on it’s unhealthy”. He then inserted his fingers in and out of her vagina and was kissing her on the neck area, up around the chin and on the cheek. She felt discomfort. On this same occasion, the accused then pull down her underwear further down to her knees. He then used his tongue on her vagina, licking and stroking it.
The accused then stood up and undid his laces on his board shorts. He used his erect penis to rub on the outside of her vagina. She started to cry, and the accused got up and said, “please don’t cry, this is normal for boys and girls.” He then got up, put pants on, kissed her on the lips, kissed his daughter on the lips, then left the room and closed the door.
The date range on the indictment is between 1 December 2008 and 31 December 2008. Ms Cusack has not submitted that the alleged dates are an element of the offence. The date range is a form of particularisation of the offence. The witness recalled the accused being at a home-made bar prior to this incident. Exhibit 11 is a photograph of the bar being constructed, dated 19 December 2009. The complainant’s evidence that the accused was at the bar prior to this incident happening is incorrect and calls into question her reliability. It was the evidence of the accused and KG, his former partner, that LP did not stay overnight until the end of 2009 and or the beginning of 2010. She had play dates before that time, but she did not sleep over until much later.
The complainant remembered this event happening before Christmas because she spent Christmas with the accused’s household. Ms Cusack submitted that it is unusual to have Christmas at someone else’s house if they are not a relative. The complainant said that her parents did not really celebrate Christmas, so AM asked her to come over and her family did. Ms Cusack said that would be something her mother might have remembered but TP did not. This calls into question the date range and reliability of the complainant.
There is evidence that AM had a class a birthday party in 2008 at her family’s house. Because of the floods in March 2009, they were unable to have a birthday party for her that year at the house. The house was under renovation from the flood damage. They had AM’s birthday that year at Movie World instead. I do not accept the complainant’s evidence that there was a birthday party in 2009 at AM’s home.
Several photographs were produced by LP and TP. It was the evidence of LP that her parents and AM’s parents exchanged photographs and they would get them on Facebook. There is not one photo from 2008 other than the school photographs. There are no photographs of LP and AM doing activities together or being together. The photographs come from late 2009 and early 2010 which is consistent with the evidence of KG about their relationship with TP and her family. KG in cross-examination gave the following evidence;

"Q. How long a period of time do you recall, in terms of weeks or months, it was that [LP] was staying the night at your place?
A. [LP] came over for many play dates, but she didn't sleep over that many times.
Q. Over what period of time did she sleep over? Can you remember?
A. Towards the end of 2009.
Q. I'm going to suggest to you that she started sleeping over before the Christmas of 2008.
A. No, I don't recall that.
Q. And at least one other time just before Christmas of 2008 and continued to do so through 2009.
A. No, I don't recall that.
Q. And, in fact, she stayed with you at one. For at least one night when you were staying away from your home because of the flood damage.
A. No, I don't recall that.
Q. Is it the case that you don't remember it, but it's possible? Or are you saying it didn't happen?
A. I specifically remember another person staying with us after the floods, but I don't recall it being [LP].
Q. who was the other person that you recall?
A. It was [AR]. "
(Transcript 9 April 2024, p 934 (8-34))

I accept the evidence of KG and reject the evidence of LP when she commenced to stay overnight at the house. The prosecution has specified certain time periods during which it is said that the events the subject of the counts under consideration occurred. Apart from the specific age limits, which are elements of a count, the prosecution does not have to prove beyond reasonable doubt an allegation in a count occurred strictly on or within the time period set out in the indictment. However, the defence have used these dates to prepare for trial and to respond to the allegations. An allegation that a specific event, the subject of the count, occurred within those time periods is an important guide in assessing the evidence and in particular the accuracy and reliability of the complainant’s account in relation to those counts. I am not satisfied that LP was an accurate and reliable witness in relation to Counts 11, 12, 13 and 14.
There are two other concerning aspects of the complainant’s evidence. Firstly, she said that there were two bathrooms at the house. She said the accused had an ensuite. There was no ensuite in the house. I reject the evidence of TP that the bathroom had two doors one from the hallway and one from the bedroom. Her evidence has the flavour of acting as an advocate for her daughter. Such advocacy is a natural reaction to a feeling of letting her daughter down and allowing her to be placed in the position she was. Secondly, she said that when she stayed in AM’s room, she slept on a single mattress that was pulled out from under the bed. No other complainants who stayed overnight with AM said that there was a single mattress in AM’s room. KG said there was no such thing.
I am not satisfied beyond reasonable doubt that Counts 11,12,13 and 14 occurred. The accused is found not guilty.

Counts 15, 16, 17 and 18: sexual intercourse contrary to s 66A (digital), sexual intercourse contrary to s 66A (cunnilingus), assault with act of indecency contrary to s 61M(2) and act of indecency towards contrary to s 61O(2).

The date range for the offences are between 24 December 2008 and 6 January 2009. I accept the evidence of KG and reject the evidence of LP when she commenced to stay overnight at the house. The prosecution has specified certain time periods during which it is said that the events the subject of the counts under consideration occurred. Apart from the specific age limits, which are elements of a count, the prosecution does not have to prove beyond reasonable doubt an allegation in a count occurred strictly on or within the time period set out in the indictment. However, the defence have used these dates to prepare for trial and to respond to the allegations. An allegation that a specific event, the subject of the count, occurred within those time periods is an important guide in assessing the evidence and in particular the accuracy and reliability of the complainant’s account in relation to those counts.
LP says that on a weekend after Christmas 2008, she slept over at the accused’s house. She slept on the wall side of AM’s bed. She woke up and the accused was on top of her. He pulled her underwear down to her knees. He then put two or three fingers in and out of her vagina. On this same occasion he then used his tongue to lick her vagina for what felt like 3 to 5 minutes. He was wearing boxer style shorts which he pulled down to his knees. He took out his erect penis and rubbed it on the outside of her vagina. He then used his own hand to rub his penis back and forth. He knelt on the end of the bed as he did this. He then ejaculated into a towel that he brought into the room with him. This type of incident happened more than once. He would always use his fingers and then his tongue. He would sometimes use one finger and sometimes two or three.
I have previously stated that it is more likely than not that LP did not commence overnight stays until late 2009 at the earliest. I am not satisfied that LP was an accurate and reliable witness in relation to Counts 15, 16, 17 and 18.
I am not satisfied beyond reasonable doubt that Counts 15, 16, 17 and 18 occurred. The accused is found not guilty.

Counts 19,20,21,22 and 23: sexual intercourse contrary to s 66A(2)-under authority (digital), in the alternate sexual intercourse contrary to s 66A(1). Sexual intercourse under authority contrary to s 66A(2)(cunnilingus), in the alternate sexual intercourse contrary s 66A(1). Act of indecency towards contrary to s61O(2).

The Crown amended the dates of the indictment to read 1 January 2009 and 1 April 2009.
Before the floods and after Christmas, LP had a sleepover in AM’s room. She slept on a single bed on the floor and BF slept in AM’s bed with AM. She woke up to the accused on top of her. He kissed her neck and inserted his fingers in and out of her vagina. On the same occasion, he then used his tongue on her vagina. He got up and walked out of the room and left. She could not recall if he did anything before leaving the room. She refreshed her memory from paragraph 40 of her statement and said that he got up and rubbed his penis back and forth with his own hand. He then got a tissue from AM’s bedside table and ejaculated into the tissue.
The incident may have happened in the date range alleged. However, the complainant asserts that she slept on a single bed on the floor and BF slept in AM’s bed with AM. No witness including the other complainants support LP’s evidence that there was a single pull-out bed in AM’s room. This points to unreliability on the part of the complainant. She was unable to give evidence of Count 23 until her memory was refreshed from her statement. This also points to unreliability on her part. In coming to this conclusion, I have taken into account and directed myself in accordance with s 293A of the Criminal Procedure Act.
I am not satisfied beyond reasonable doubt that Counts 19, 20, 21, 22 and 23 have been made out. I find the accused not guilty.

Counts 24 and Count 25: sexual intercourse under authority contrary to s 66A(2) (digital), in the alternate sexual intercourse contrary to s 66A(1).

The complainant says that she stayed 3 nights at the accused’s house for AM’s birthday in 2009 on Thursday, Friday and Saturday night. I do not accept this evidence. AM’s birthday party took place on the Gold Coast in 2009. KG gave evidence that LP did not stay over on a school night or for 2 nights in a row. I rejected the evidence of TP that there was a second birthday party that year. She says that the accused took her and AM out on the boat to check crab pots on Thursday. They all had crab for dinner. She could not eat it as she is allergic to shellfish. The accused became agitated and angry. The following Friday morning, KG packed lunch for her and AM. KG took them both to school. The accused later picked them up. She did not eat all her lunch. The accused found out and said to her something along the lines of, “I will deal with you later.”
She woke up that Friday night to the accused crawling onto the bed. She slept on the right-hand side of the bed near the wall. He crawled on her side of the bed up to her waist area. He lifted her nightie dress up and then tried to pull her underwear down. She tried to put them back up. He then said angrily, “don’t be so disrespectful”. She felt scared. He inserted 3 or 4 fingers in and out of her vagina. She felt pain and discomfort. She said, “please stop” or “I don’t like it”. He did not respond. She then said, “it’s hurting me”. She felt that he did this for 5 minutes. He got up and said to her something along the lines of, “you’ll learn not to be disrespectful” and then left. She felt pain and was crying after he left. She said AM had something like a party on Saturday, it was a large and there were a number of kids from school. She still felt pain in the vagina that day.
The alleged incident is triggered around 3 matters. Firstly, a large birthday party held on the Saturday in 2009. I have rejected this evidence. Secondly, KG packing a lunch for her on the Friday, and LP not eating all of it. I have previously rejected the criticisms made by Mr Cusack in relation to the complainant’s memory of precisely what was packed in the lunch. I did so as a matter of common sense namely that because of what occurred due to her failing to eat the packed lunch, it was something that stood out in her memory. KG in cross-examination did not recall making lunch for LP but said, “it’s possible, but I don’t recall. It was such a long time ago.” Thirdly, that crab was served for dinner which she could not eat. TP gave evidence that her daughter had an iodine allergy. In cross-examination KG was asked,

“Q. do you recall a dinner when LP was there where crabs were cooked up, but she couldn’t eat them because she had an allergy?
A. Not specifically, but it’s possible.”

I do not accept that LP stayed over for three nights on Thursday, Friday and Saturday in 2009 when AM had a birthday. On balance I accept that KG may have made a school lunch for her and that crabs may have been served for dinner, although the accused denied serving crabs to children, but he did keep crab pots and had a boat to retrieve those pots.
On balance I accept LP’s evidence that she was digitally penetrated by the accused.

Count 26 and Count 27

I have at the request of the Crown directed not guilty verdicts.

Count 28: attempted sexual intercourse contrary to s 66B.

On a Saturday in November 2009, LP was dropped off to the accused’s house on her stepfather’s motorbike. BF was also staying overnight. After dinner her, AM, BF and BF’s two brothers watched a movie on the lounge. She sat on a blowup mattress in the middle of the lounge room with the accused. She shared a blanket with the accused. She fell asleep during the movie and woke up to the accused taking his pants off. He stood next to the mattress. The TV was still on, and the other four kids were sleeping. He pulled her shorts and underwear down to her ankles. She was lying on her back on the mattress. He forcefully pushed her legs apart with his hands. He held his penis and tried to insert it into her vagina. He touched the outside of her vagina. She said, “please stop. I feel sick”. A light or a door came open in the hallway. He jumped off the mattress, put his pants on and walked away into the bedroom. After this incident, she went down to KG’s room and said she wanted to go home and felt sick. Her parents then came and picked up in their Nissan Navarra. On the way home she vomited in the back of the car.
TP gave evidence that her partner took the complainant to the accused’s house on a motorbike. This evidence supports part of the narrative given by the complainant. TP gave evidence that she received a telephone call from AM’s mother indicating that LP was unwell. Arrangements were made for LP to be picked up by TP’s partner. It was LP’s evidence that she had to clean up vomit in the car. This evidence is supportive of the complainant.
SJ, the accused’s sister, gave the following evidence:

Q. You indicated that there were times where you would sleep in the lounge room.
Yes.
Q. As at the lounge room where there were some leather lounges, but also the open area with the dining table?
A. That’s right.
Q. And you and the kids would sleep in the lounges; is that right?
A. No, I would sleep on the lounge, the kids would be on a bed.
Q. Where would that bed be?
A. In the lounge room.
Q. On the floor in front of the lounge.
A. Like the lounge room/dining room. They were camping beds. There was two big ones; two double ones.”
(Transcript 9 April 2024, (1-17))

The above evidence is supportive of the complainant that the incident took place on a mattress in the lounge room. I’m satisfied on the balance of probabilities that this incident occurred.

Complaint

The first person MC told was her friend/roommate CW in 2021. She told her that something had happened between her and the accused when she was young. She said the accused had touched her but did not explain details. She was asked if she had a conversation with her mother after telling CW. She said no. Her memory was refreshed on paragraphs 40-41 of her statement. She then said CW had disclosed what she told her to her mother. Her mother called her asking if she had anything to tell her. She felt upset and a bit angry at CW for telling her mum, but also relieved. She told her that the accused touched her when she was younger. Her mother told her to tell the police. She did not speak to the police until they contacted her to make a statement. Police contacted her to make a statement and she immediately called her mother to ask if she had told them anything. She felt really upset and angry thinking that her mother had contacted the police.
The complaint was delayed. I direct myself in accordance with s 294 of the Criminal Procedure Act that the delay in complaining does not necessarily indicate that the allegations are false. I consider that there may be good reason why a victim of a sexual assault may hesitate in making a complaint.

I consider the evidence of complaint in two ways. Firstly, it strengthens the credibility of the complainant and secondly it may be used in proof of an offence.

Criticism of her evidence

Ms Cusack submits that the pool episode has to be viewed with some scepticism in terms of the mechanics of what MC said happened. The launching into the air occurred with his hands under her armpits. His hands would never be near her vagina. She talked about launching from his knees. In another version she talked about standing on the ground and not on his knees. Ms Cusack submits that it is improbable that you could launch someone from the ground with your hands underneath their arms and then quickly slide your hands down underneath her swimmers. She further submits BF’s evidence about seeing something happening in the pool was equally vague in terms of what she said she saw because she described MC on the accused’s back.
In relation to the allegation of the accused sending an image of him masturbating to MC, Ms Cusack submits that her mother monitored her communications. The accused was aware that MC’s mother monitored her communications. She asked rhetorically, why would the accused send an image of himself when he knows there is a probability someone might see it? She submits MC did not complain to her mother or her close friend about this incident. It was only after some to-ing and fro-ing with the police that it came to light.

Counts 39 and 40: assault committing an act of indecency contrary to s 61M(2), commit an act of indecency towards MC contrary to s 61N(1).

One night during a sleepover at the accused’s house, MC was asleep on the right side of AM’s bed. He came in and stood in the gap in between the wall and AM’s bed. He stood with one leg up on the bed and stroked his penis with his hands. She noticed this continue for about five minutes. He tried to touch her leg and once he did this, she turned around and pretended to be asleep. AM was asleep next to her.
It was the evidence of the accused that the bed was against the wall and there was no gap. This conflicts with KG’s evidence that during the period from when AM was in kindergarten to high school, there were times when her bed was against the wall and times where there was a bit of a gap. (Transcript 9 April 2024, p 936(48))
I am satisfied on the balance of probabilities that the incident took place.

Count 41: commit an act of indecency towards MC contrary to s 61N(1).

There was another occasion where she sat on the edge of AM’s bed facing the door, and the accused would be opposite the hallway, in the bathroom. The bathroom door was slightly open. She could see the accused stroking his penis while naked and videotaping himself. She thought it was gross and shut AM’s bedroom door.
It was my understanding of the evidence that if one sat on the end of AM’s bed, then one could see some of the bathroom if the bathroom door was open. The accused in cross-examination agreed that he would masturbate in the bathroom, but he said he did so with the door closed.
I am satisfied on the balance of probabilities that the incident took place.

Count 42: transmit indecent material contrary to s 474.27A(1) Criminal Code Act 1995.

The accused added MC on Snapchat around 2012 or 2013, and she accepted. She used Snapchat to communicate with the accused when she was not staying at their place. She recalled a time when she was staying at the accused’s place. He was in the bathroom, and she received a video on Snapchat of him stroking his penis in the shower. She recognised his big gold bracelet on his right hand and gold watch on his left, his multiple rings and the shower layout. The Snapchat had a silly emoji attached to it. She responded saying it was gross, and he replied saying it is normal. She was in year 3 or 4 at the time.
MC’s mother, SB monitored her social media applications. There was no evidence from SB that she saw this video. The accused was aware that SB monitored her daughter’s social media applications. There is no supportive evidence of the complainant. This allegation did not form part of the complaint to her mother or best friend.
Even with these deficiencies I am satisfied on the balance of probabilities that the incident occurred.

Count 43: assault committing an act of indecency contrary to s 61M(2).

On one occasion, the accused was in the pool with MC, AM and BF. He played in the pool with her by lifting her up and throwing her into the deep end. Her back would be facing him as he did this. He held her at her armpits and then his hands went down to her hips to throw her. As he picked up, his hands went inside her swimmers, and he touched her between her bottom and her vagina.
I accept Ms Cusack’s argument that the complainant gave different versions about how she was launched into the air. One version revolved around launching from the ground and the other version revolved around launching from his knees. On either version it is improbable that he would have been able to place his hands under her swimmers during the launch process.
I am not satisfied beyond reasonable doubt that this incident occurred, accordingly I find the accused not guilty of Count 43.

Count 44 and 45: sexual intercourse aggravated contrary to s 61J(1) (digital penetration), alternate sexual intercourse contrary to s 66C(1)

On the occasion referred to in Count 43, she said that she squirmed out of his hands when he touched her bottom before he could push herself out of the water. She went back and he then inserted a finger or two fingers inside her vagina. While he did this, his other hand was on his hip. His fingers were inside for about 2 or 3 seconds. She felt this hurt. He then removed his fingers and launched her into the water. She swam to the end and got out. She felt very sore in around her vagina. Her mum then came and picked her up. She thought she might have been getting her period for the first time as she was very sore.
There is evidence that MC developed early and had her first period when she was 10 years of age. The date range of the indictment is 14 March 2014 and 15 March 2017, whereby the complainant would be between 11 and 13 years of age at the time of this incident.
The criticism made by Ms Cusack in relation to Count 43 applies with the same force to Counts 44 and 45. Although she says that after he touched her bottom, she squirmed out and then returned where he placed his fingers in her vagina, it does not accord with the launch process that she described whereby his hands were under her armpits. However, it is open on one view of the evidence that after she had moved away and returned, his hands were still under the water, and he had not proceeded to the launch position. It is in those circumstances, he may have placed his fingers in her vagina. Therefore, on the balance of probabilities I accept that this incident occurred.

Context evidence

MC was playing in the garage with AM and BF. AM left the room. The accused walked into the room and said to BF and her, “you guys should kiss.” She felt compelled to do so. Her and BF pecked on the lips as the accused stood on the stairs laughing. After they kissed, he laughed and said, “no. Like a real kiss.” She and BF then proceeded to kiss with their tongues. He stood there last and walked away.
BF did not give any evidence of a kiss taking place in the garage. I reject MC’s evidence that such a kiss took place.

Conclusion

The accused’s evidence

It is important that I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to any reasonable doubt that I have at the end of my deliberations.
The accused has given evidence. If I believe his evidence, I must acquit. If I find difficulty accepting his evidence but I think it might be true, then I must acquit.
If I think the accused probably did what is alleged, then that is not proof beyond reasonable doubt. Proof beyond reasonable doubt is the highest standard of proof known to the law. I may suspect that the accused has done what is alleged but, suspicions form no part in the criminal law.
A verdict of not guilty does not mean a finding of innocence.
Ms Crown in her final address identified several reasons why I should reject beyond reasonable doubt the evidence of the accused. I take those matters into account in assessing the evidence of the accused.
There were two troubling aspects of the accused’s evidence. On 29 January 2021, AR telephoned the accused. The call was recorded and became Exhibit 2. Part of the conversation is as follows:

AR: I just want to know why you picked me? Why did you do it to me?
Accused: I don’t know what you’re talking about. What are you talking about?
AR: when I was little, why did you torment me like that?
Accused: I didn’t torment ya
AR: yes you did.
Accused: not at all.
AR: why not anyone else?
Accused: I don’t know what you’re talking about.
AR: you know exactly what I’m talking about.
Accused: I have no idea.

The accused terminated the call. The accused made a denial. The accused had the telephone number of the caller. On 4 February 2021, he sent several Snapchat messages to that number which were photographed and became Exhibit 3. The final message sent from the accused phone reads, “I was in love with you back then and just could not be around you even tho I liked it so much hence our eventual split.” The accused says that he sent the messages in this exchange over a 3-hour period except the final message.
In summary, the accused’s evidence was that he did not know who he was sending the message to. He was trying to fish out whether he was being scammed. He had been scammed before on social media. He understood scams to mean when “people pretended to be someone they’re not and down the track they want you to invest money.” When he sent the messages he was working as a cabdriver. Between 7:40pm and 8:27pm he was with customers. He did not know who he was talking to and was seeing if it was somebody trying to blackmail him. They could have been blackmailing about anything, he just did not know. He agreed that he had seen the picture sent of herself on Snapchat. He was not convinced it was her. He was asked why he offered money as a helping hand. He responded, “just to see if someone was trying to scam me.” He was talking to fellow taxi drivers at the hospital and showed them the picture and explained that he thought someone was trying to blackmail him. He was asked about the message at 9:36pm which says, “I was in love with you back then and just could not be around you even tho I liked it so much hence our eventual split.” He denied sending this message. He said he thought it was sent by a man called Grubb who worked with him also as a cab driver. Grubb was listed in his contacts on his phone. He had given his phone to the other cab drivers, and they were checking out the photo that AR sent of herself. He did not check to see if they had written anything on his phone. He found out about the message when he was served with the paperwork from the police.
In cross-examination he denied that the photograph of AR on page 15 of Exhibit 3 was the one that was sent. He believed that the picture she sent was a full-body picture of herself wearing a pink silk nightie. None of this was put to AR. He showed the photograph of AR in the pink nightie to a group of guys at the cab rank, and they ogled over it. He denied knowing it was AR in the early part of the conversation. He denied offering her a helping hand to keep her quiet. He was asked about his reference to legality issues. He said, “because I don’t know it’s the kid next door. I’m presuming someone is trying to blackmail me.” He agreed that he was the first person in the conversation to offer money. He said that his reference to a form for AR to sign was him fishing. He strongly suspected he was talking to AR’s mother. He was asked about him saying, “the money is a helping hand.” He denied it was a bribe to shut AR up. He said he was still fishing.
The Crown relied upon these messages as partial admissions made by the accused. Ms Cusack submitted, “you may not think that his evidence is particularly plausible in relation to why he was contacting this person, however, the messages don’t flow continuously and as pointed out, there is a block of time in between the last message and the message before that where he says he’s going off to get a customer and then there is a break of about 40 minutes which he says he didn’t see.” She submitted that the image sent of a young girl wearing a dressing gown was provocative and it is plausible that the accused showed it to his friends.
Even if I accept that evidence, I find it implausible that ‘Grubb’ or another person sent the final message. It enlivens my suspicions about the accused. The Crown says that his denial of sending the final message goes to his credit and a general sense of wrongdoing. The Crown said, “I’m not pointing to it as a consciousness of guilt of a particular element…” (Transcript 11 April 2024, p 995(21)).
I set the accused’s evidence to one side. However, I must still assess the denials made by the accused to the offences. It does not follow that although I find his explanation of the Snapchat messages with AR (Exhibit 3) to be implausible, that I should reject all of his evidence. The accused is like any witness, I may reject part of his evidence and accept part of his evidence, if that evidence is worthy of acceptance.
Exhibit 32 was a recording showing the accused sitting on the same chair directly behind BF. In cross-examination he said the girls would sit beside him, not in front of him, on the same chair. Later in his evidence, he said he believed the evidence he gave about never having the girls in front of him on the chair was true before he was shown the video. In light of that evidence, I could not be satisfied that it was a deliberate lie.
He denied he knew about the video before he gave evidence in the trial. There was a break in proceedings and then he admitted he was made aware of the video recently. It is a matter of credit. It does not mean that I should reject his denials.
The accused has denied the offences. His denials were tested in cross-examination. He maintained those denials.
To find the accused guilty I would have to reject his denials beyond reasonable doubt.
Did the accused probably commit the offences? Yes. Am I highly suspicious of the accused? Yes. One must bear in mind that proof beyond reasonable doubt is the highest standard of proof known to the law. I have found difficulty accepting the accused’s evidence, but I think it might be true. In coming to that conclusion, I am obliged to find the accused not guilty.

ORDERS

Verdicts of not guilty are entered to Counts 1 to 45.
The accused is to be released immediately.

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Decision last updated: 26 April 2024

Medium Neutral Citation:	R v GM [2024] NSWDC 134
Hearing dates:	6 March 2024 – 11 April 2024
Date of orders:	26 April 2024
Decision date:	26 April 2024
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The accused, GM, is found not guilty of Counts 1 – 45
Catchwords:	CRIMINAL LAW – Child sex offences -Multiple Counts- Four Complainants-Verdict – Judge alone trial
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW)
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250 The Queen v Bauer [2018] HCA 40
Category:	Principal judgment
Parties:	Rex (Crown) GM (Accused)
Representation:	Counsel: Ms F Vella (Crown) Ms M Cusack (Accused) Solicitors: Ms K Palenzuela (Crown) Ms T Randall (Accused)
File Number(s):	2021/00112985; 2021/00348381; 2022/00057816
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material, that identifies, or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes.