R v Howard (a pseudonym) - [2023] NSWDC 210

District Court

New South Wales

Medium Neutral Citation: R v Howard (a pseudonym) [2023] NSWDC 210
Hearing dates: 21 March 2023 – 25 March 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Verdicts of not guilty with respect to each matter.

Catchwords:
CRIME — Sexual offences — Indecent assault of a child
CRIMINAL PROCEDURE — Trial — Judge alone
EVIDENCE — Witness evidence — Corroboration — Delay — Reliability — Prior sexual conduct

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438
Fleming v R (1998) 197 CLR 250
Liberatov The Queen (1985) 159 CLR 507
R v Murray (1987) 11 NSWLR 12

Category: Principal judgment
Parties: Rex
Richard Howard (a pseudonym) (Accused)
Representation:
Counsel:
V Morgan (Crown)
C McGorey (Accused)
Solicitors:
NSW Director of Public Prosecutions (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2021/265159
Publication restriction: Non-publication order for the accused, the complainant and any matters identifying the complainant including the names of related persons.

Index to Pseudonyms

John Bush	Complainant and alleged victim
Richard Howard	Complainant’s step father; the accused
Helen Bush	Complainant’s mother
Margaret Wren	Former partner of the accused, Richard Howard and subsequent partner of Steven Pearce
Steven Pearce	Former partner of the complainant’s mother, Helen Bush and subsequent partner of Margaret Wren
David Patient	Complainant’s father
Harriet Bush	Complainant’s older sister
Michael Howard	Complainant’s step-brother
Frieda Howard	Complainants step- sister
Uncle Sonny Bush	Complainant’s mother’s brothers
Uncle Calvin Bush	Complainant’s mother’s brothers
Aunt Dorothy	Complainant’s mother’s sister
Barney Bush	Complainant’s grandfather
Uncle Wyatt Earp and Ruth	An apparent uncle and his partner who cared for the complainant and his sister in 2015
Aunt Hilda Clarke	Complainant’s mother’s first cousin and permanent carer of the complainant and his siblings
Aunt Tess Clarke	Aunt Hilda’s daughter
Harry Little	Complainant’s grandmother’s brother and uncle to the complainant’s mother
Elsie Bush	Complainant’s grandmother
Gary and Annabelle Bridgestone	Foster carers of the complainant and his step-sisters during 2016
Peter Simpson	Complainant’s teacher at Moree East Public School

VERDICT

Richard Howard stood trial in the District Court at Moree with respect to five counts on an indictment, each of which alleged an indecent assault on a young child contrary to the provisions of s 61M(2) of the Crimes Act 1900 (NSW).
The complainant was between the ages of four and seven years of age and accordingly there is a statutory non-publication restriction with respect to any identification of that person (s 578A(2) of the Crimes Act 1900).
Such prohibition extends to aspects of the evidence which might tend to identify the complainant. Accordingly, this published version of the judgment has substituted pseudonyms for the complainant and numerous related persons. Other details which might lead to the identification of the complainant have been varied or redacted. Substitutions in place of redactions of locations and dates appear in square brackets.
On 20 March 2023 an application for a ruling in advance of the commencement of the trial was made with respect to the proposed cross-examination of the complainant in relation to various allegations of sexual impropriety towards him by nominated persons other than the accused. I gave judgment on the morning of 21 March 2023 permitting such cross-examination and the introduction of relevant evidence pursuant to s 294CB(4) of the Criminal Procedure Act 1986.
Application was also made for the trial to proceed as a judge-alone trial. The Crown consented to this course and as such the Court had no discretion but to proceed as a judge-alone trial (s 132 Criminal Procedure Act 1986).

TRIAL BY JUDGE ALONE

Section 133 of the Criminal Procedure Act 1986 provides for a trial by a judge alone. Subsection (2) requires that the judge must include in his or her judgment the principles of law that the judge has applied and the findings of fact on which the judge relies. The requirements of a trial judge sitting alone as to the giving of reasons were considered by the High Court in AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438. A trial judge is required to summarise the crucial arguments of the parties, to formulate the issues for decision, and to resolve any issues of law and fact that need to be determined. To comply with ss 133(2) and 133(3) of the Criminal Procedure Act and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250 I remind myself of the following principles of law.

FUNCTION

As the accused has pleaded not guilty and elected to proceed to a trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of each of the charges and return my verdict according to the evidence. As the tribunal of fact I am required to make findings of fact from the evidence that has been presented and then apply the relevant legal principles to those findings of fact. The findings of fact must be drawn only from the evidence that has been presented. There can be no intrusion into that finding by considerations of sympathy, bias, prejudice or any other emotion.

BURDEN AND STANDARD OF PROOF

It is convenient to start with some general principles.
The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt.
The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before I can convict the accused of any of the separate counts in the indictment. It is vitally important to remind myself that the accused must not be found guilty if any one of the essential ingredients or elements of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such element or ingredient, even though I might suspect the accused of that matter, the accused is entitled to the benefit of that doubt and I must in such circumstance find him not guilty.
The accused is being tried jointly with five counts in the indictment. The joinder of these five counts is a matter of convenience. There are five identified incidents of alleged misconduct in respect of which the trials are being held jointly. The evidence with respect to an individual count must be considered separately notwithstanding that there is a substantial amount of commonality required to be considered with respect to the evidence.
In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused with respect to an individual count beyond reasonable doubt? If the answer is “Yes” the appropriate verdict is guilty; if the answer is “No” the verdict must be not guilty.
Although an accused person is entitled to give or to call evidence in a criminal trial there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute.
The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged. Therefore it follows that the accused is entitled to say nothing and to make the Crown prove his guilt to the high standard which is required.
In the present trial the accused did not give evidence. The decision of the accused not to give evidence cannot be used against him in any way at all in my determination of the verdict. The decision not to give evidence cannot be used as amounting to an admission of guilt. I cannot draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. That fact cannot be used to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
In the present matter the accused was arrested and cautioned by police. There was a formal recorded interview conducted with him.

INFERENCES

I may in my role as the judge of the facts draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can properly be drawn from those facts. The present case is fundamentally a direct evidence case relying as it does upon the evidence of the complainant.

RELIABILITY AND DELAY IN COMPLAINT

The Crown case largely depends upon an acceptance of the reliability of the complainant. That being so, unless I am satisfied ultimately beyond reasonable doubt that he is both an honest and accurate witness in the account that he has given about the individual counts in the indictment, I cannot find the accused guilty. It will be necessary to examine the evidence of the complainant very carefully in order to satisfy myself that it is both honest and reliable with respect to the particular counts which are alleged in the indictment.
The Crown also relies upon evidence of complaint. If I find that complaint was made in the ways alleged by the complainant and his Aunt and second cousin, in particular, and by the other evidence, I can use evidence of what was said in the complaint as some evidence that the incident the subject of the particular charge being considered did occur. I remind myself that the law says that because of the circumstances in which a complaint was made the tribunal of fact is entitled to use what was said in that complaint as some evidence of the truth of what the complainant alleges against a person. The tribunal of fact is entitled to consider whether a complaint was made at a time and in a manner that would indicate that the allegation was reliable.
If the complainant has not acted in a way that would be expected that a child might act after being indecently assaulted as he has described, then that might indicate that the allegation is false or otherwise unreliable.
The defence, of course, asserts that the complaint evidence cannot be used in the above fashion because of the considerable delay in particular, and that the delay is such that the complainant is, at the very best, a highly unreliable witness.
The fact that the complainant did not complain about the accused on the numerous prior occasions identified in the evidence, does not necessarily indicate that the allegations are false or unreliable. I remind myself that there may be good reasons why a victim of sexual assault or indecent assault may hesitate in making or may, in fact, refrain from making a complaint about the details of an assault.
However, the fact of the delay in making the particular complaints is a matter which I may take into account in assessing the credibility of the complainant’s evidence as to what he subsequently said that the accused had done. The accused argues that the delay in making complaint is inconsistent with the conduct of an honest and reliable person who had been indecently assaulted. It is submitted that I should regard this as indicating that his evidence is in fact unreliable. These are matters which I will be required to consider carefully.

MURRAY DIRECTION

In addition to those directions I remind myself of the appropriate direction where there is one witness essential to a Crown case. Accordingly I give myself a so-called ‘Murray’ direction and remind myself that unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness, in the account he has given, I cannot find the accused guilty. Before I can convict the accused I must examine the evidence of the complainant, John Bush, very carefully to satisfy myself that I can safely act upon that evidence to the high standard that is required in a criminal trial. The need for particular caution arises because of the onus and standard of proof placed upon the Crown. I am of course clearly entitled to convict the accused based on the evidence of the complainant provided I have carefully examined and satisfied myself that it is reliable beyond reasonable doubt. In considering whether the complainant’s evidence does satisfy me to the requisite standard I should, of course, look to see if it is supported by other evidence.

MULTIPLE COUNTS

Given that there are multiple counts in the indictment, I remind myself that I must give separate consideration to the individual counts. However, I am entitled to bring in a verdict or verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that decision. However, if I were to find the accused not guilty on any individual count, particularly if that was because I had doubts about the reliability of the complainant’s evidence regarding that count, I would have to consider how that conclusion affected my consideration of the remaining counts.

LIBERATO DIRECTION

The last direction that I must remind myself about is a ‘Liberato’ direction. As will become clear, the accused provided a voluntary recorded interview with police. That interview contains denials regarding the allegations brought against him. The accused relies upon those denials without giving additional evidence in the course of the trial.
Whilst the fact that he chose not to give evidence in the trial cannot be used against him, he is entitled to rely on the account of events and his denials which are contained in the interview with Police. The onus and standard of proof which remain upon the Crown leads to the conclusion that if I accept and believe the accused’s account in his interview with the Police, I must acquit. However, if I have difficulty accepting the account in the recorded interview but think that it might be true, I similarly must acquit.
However, and further, if I do not accept or believe the account relied upon by the accused in his police interview, then I should put it to one side. In such circumstance the question will remain as to whether the Crown has, upon the basis of the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt.
After reminding myself of the relevant directions which I would have given to a jury, and accordingly have given to myself, I turn now to the elements of the charges brought against the accused.

CHARGES

In short, there are alleged to be five identifiable acts of, in effect, sexual touching which occurred on three separate occasions. Each count is preferred pursuant to an alleged contravention of s 61M(2) of the Crimes Act 1900 (NSW), namely assault with an act of indecency on a person under the age of 16 years. In each case the complainant was said to be four, five, six or seven and that the identified assault occurred during the period of 1 January 2012 and 31 December 2014.
As will become clear from the summary of the evidence, the first count in the indictment relating to what I will describe as the “broken cup” incident is alleged to have taken place in the complainant’s bedroom; the second and third counts relate to alleged conduct in the lounge room whilst watching a movie while the complainant was allegedly wearing a nappy; and the fourth and fifth allegations relate to alleged circumstances in the bathroom when the complainant was allegedly being made ready for a bath by the accused. Following the presentation of the indictment on 21 March 2023, the accused pleaded not guilty to each of the counts.

AGREED FACTS

The somewhat convoluted family and related-persons “tree” was clarified to a considerable extent by the tendering of an Agreed Statement of Facts (Exhibit 3). The Crown also handed up as an aide-memoire a draft family tree and a draft timeline. These have been placed in the Court file.
The Agreed Facts set out the detail of the birth of the various children.
John Bush was born [in] 2007 to Helen Bush and David Patient.
Harriet Bush was born [in] 2005 to the same parents.
Michael Howard had been born [in] 2007 to Margaret Wren and Richard Howard.
Frieda Howard was born [in] 2015 to Helen Bush and Richard Howard.
[In] 2021 Helen Bush passed away.
Other aspects of various relationships became clear in the course of the trial.
Additional chronological facts and circumstances were also set out in the statement of Agreed Facts. It will be appropriate to set them out after dealing with the complainant’s evidence.
Prior to the trial commencing, evidence regarding other alleged sexual conduct by others towards the complainant John Bush was ruled to be admissible pursuant to s 294CB(4) of the Criminal Procedure Act 1986. A schedule of the relevant evidence derived from specific questions and answers in four of the recorded interviews with the complainant was tendered in the trial as Exhibit 11.

EVIDENCE OF THE COMPLAINANT

The complainant, John Bush, was the first witness called. He was fifteen years old at the time of giving evidence, having been born [in] 2007.
A recorded interview with the complainant on 27 April 2021 provided the basis for each of the five counts alleged in the indictment. The recorded interview was played as the child’s evidence-in-chief.
John was thirteen years of age at the time of that interview. He described to the police that some things had happened in the past and that he “had it hidden all these years” and that he “didn’t want to be that kind of kid”. He said that there were a number of people that he was going to talk about and named the present accused, Richard Howard, and two other men he identified as Wyatt Earp and Steven Pearce. The interview thereafter proceeded with the focus on the accused, Richard Howard.
John indicated that the incidents that happened with Richard Howard occurred at their home in [redacted] Street, Moree. He described what had happened as: “He touched me inappropriately.” By reference to when his Nan had died in 2012, and when he and his sister were separated from their mother in 2015, he described these identified dates as the period during which he was touched inappropriately by the accused.
He described the first incident as occurring when he had accidentally broken a cup. He said he was “pretty sure” that he had been sent to his room and the accused followed him and came into the room and started touching him. He was asked what happened and he said: “Well, touched my ass.” The description of this incident constituted the allegation in count 1.
He recalled his older sister Harriet running through the house. John said that Richard Howard told his sister to stay out of the room and he went on to say that he had subsequently been sent outside to play with the other children.
The complainant then described, later the same day, watching a movie at their home. He described his mother Helen Bush, another lady described as Aunty Marg, his younger brother Michael and his older sister Harriet watching the movie. He explained that Aunty Marg was Margaret Wren, who was Richard Howard’s ex-partner.

The child was asked to explain the detail of the furniture in the lounge room. He went on to describe his mother Helen Bush, Margaret Wren, and the other two children leaving to go and pick something up. He said that he stayed behind with the accused. He said that he was pretty sure that it was just him and the accused.
John said they stayed watching the movie and then the accused came over and sat next to him and started touching him. The complainant described the accused putting his arm over his shoulder. He described the accused starting to touch him.
The interviewing detective said, at Q136: “And you said he reaches for your dick” to which the complainant responded “yeah”. I am constrained to observe in passing that the basis for that leading question is not clear. No such description had been proffered by the complainant in the course of the interview up to that point.
The complainant went on to describe being in a nappy at the time and he described the accused: “slips his hand underneath the nappy”. The complainant described at Q144: ”We were all just in nappies and then Mum was getting Harriet dressed to go get tea, and Margaret was getting Michael dressed”.
The complainant went onto describe that the others had gone to get tea at the time he got touched. He was pretty sure it was ‘KFC’ and he thought that the movie was ‘Fast and Furious 6’. Despite some confusion as to how old he was at the time of the alleged conduct the complainant ultimately settled on the proposition that it was the year his “grandfather” had died, which he recalled was in 2012. I should note that the reference to his “grandfather” may be a transcription error and the reference should be to his “grandmother” who had died in 2012.
John also said that the incident was seven years previous to the time of the interview. He was 13 at the time of the interview and accordingly he would have been six years of age at the time of the alleged incident. If this was accurate it must have been 2013 or 2014 given his date of birth in May 2007.
In the course of the interview the police officer returned to the detail of the alleged touching in the bedroom. The complainant was asked to give some more detail about what the accused had done exactly. He described “the side of my ass” being rubbed or stroked. He said that the accused said that he was “sorry” and then “kind of stops himself and told me I had to go play with the kids”.
The interview then moved to a description of the last time that something allegedly happened between the complainant and Richard Howard. The complainant described getting undressed to get into the bath when Richard Howard came in and touched his “dick” again and his “ass”.
He described Uncle Sonny coming to visit at that moment and the accused leaving the house with a “knife” and walking towards Uncle Sonny and threatening to kill him if he came anywhere near the house.
The complainant described the accused coming back into the house and having seen the complainant “peeking” at what had occurred with Uncle Sonny, he then started hitting him. The complainant described the accused taking his belt off and hitting him three times with the belt. He claimed to have received a bruise on his leg as a result and telling his teacher at the Moree East Primary School about what had happened.
The complainant also described an act of violence between Richard Howard and the complainant’s mother. He said that while Richard was “beating up” his mother one day the neighbour from across the road came to see if the kids were alright. He then described Richard Howard grabbing the neighbour by the throat and throwing him out of the house face first onto the ground.
The complainant described the incident in the bathroom with some more detail and claimed that the accused had tried to put his “fingers up my ass”. He was asked whether the accused was successful in putting his fingers inside and he said “I can’t quite remember”.
The complainant was then taken back to the incident where he claimed to have been struck by the belt. He described tripping back and hitting his head on the wall. The complainant said that he started bleeding on the back of his head.
The complainant described that this was the first time that they had involvement with the Department of Community Services (DOCS).I should make the observation that references by different witnesses to either the Department of Community Services (DOCS); the Department of Family and Community Services (FACS) or the Department of Communities and Justice (DCJ) were used interchangeably in the course of the trial.
With respect to the involvement of DOCS, John described ‘Pop’ having been on the phone and the complainant was crying. He thought that ‘Pop’ believed that Howard had done something to the children and rang the police. He described being taken by the police.
He said “we stayed there for a week”, although where they stayed was not described. He said that they then went back to their mother’s before being pulled back out of his mother’s place by DOCS and placed with Uncle Wyatt (Earp) and his girlfriend Ruth. The complainant described staying at Wyatt’s place for three months.
The complainant went on to describe his movement to a variety of different places and his perception of the nature of the ongoing relationship between his mother and Richard Howard. The complainant described the detail of the older Christian couple (the Bridgestones) that he and his sister were placed with for a year and his ultimate return to Moree. He told police in the interview:

“and by this time, like, half the people that knew Richard knew what he’d done to me, but…
Q.358 “In what sense, the physical stuff or the touching, the sexual stuff?
A. All of it
Q.359 They knew all of it. yeah?
A. And, ‘cause I used to talk to my teacher about it.”

The teacher was identified as Mr Simpson at Moree East Public School. The complainant described in some detail having had Mr Simpson in year 2 and year 3. In the ordinary course children will be likely to turn eight in year 2 and nine in year 3.
The complainant then clarified that he did not tell Mr Simpson about the sexual stuff:

“I just told him about, like, him beating me up and him beating up Mum.” (Q376)

He described the very first person he told about the sexual allegations was his Aunt Tess who was his Aunt Hilda’s daughter. The sexual allegations, described in the record of interview, each of which would constitute an act of indecency, comprised the five counts on the indictment as described earlier in this judgment.
The complainant also described an uncharged act where the accused allegedly pushed him causing John to hit his head on the corner of the TV cabinet and be knocked unconscious. The complainant claimed that when he was pushed he was wearing shorts that were up but when he woke up his pants and undies were down near his ankles. He said that this incident occurred in either 2012, 2013 or 2014.
In additional evidence-in-chief the Crown referred the complainant to an interview conducted with him by police in 2013. He was in year 1 at school at the time of that interview. Although not tendered in the trial, that interview of 21 February 2013 had been provided to the defence and was the subject of the pre-trial ruling with respect to cross-examination as to its relevant contents. The complainant indicated that he did not remember the interview at all but remembered watching the video of it.
The complainant then described in additional detail the stroking on his hip area regarding the first occasion in the bedroom when he had broken the cup. He described trying to move the accused’s fingers because it felt uncomfortable and gave a more detailed account of the movements of the accused’s hand.
The second described incident, while wearing a nappy and watching a movie, was suggested by the Crown as being described in the interview as having happened in 2014. The complainant agreed with that date “roughly”. He added “it would’ve been whenever time we moved in, to the time we left”, referring to the time in [redacted] Street.
The clear inconsistency between the first described incident in the bedroom having occurred in 2012, the year his grandmother died, and the second incident, being the lounge room and nappy incident, initially being described by the complainant as having happened later the same day, and the different suggestion that it had in fact occurred some years later in 2014 was never clarified nor pursued in his evidence.
With respect to this second incident John described the nappy as being a disposable nappy and he gave more specific detail of the accused’s hand being in the area of his penis on the outside of the nappy, before moving underneath the nappy and gripping his penis.
This description gave rise to counts 2 and 3.
The Crown next took the complainant to the third incident in the bathroom. He described the various other persons that were in the home at the time. He said that when the accused came into the bathroom he knelt down and started to touch the complainant’s penis. He described that: “He stroked it and… gripped it and covered his hand with it.” He agreed that if someone had walked past the bathroom door which was open, they would have been in a position to see what was happening.
He then described the accused trying to put his fingers up the complainant’s bottom.
These descriptions gave rise to counts 4 and 5.
The complainant confirmed that after being hit and bruised by the belt, he had told his teacher Mr Simpson about a week later. He went on to describe the first person to whom he complained about the alleged sexual touching, Aunt Tess.
The complainant was then cross-examined by Mr McGorey, counsel for the accused. The first topic was the bedroom incident following the claimed broken cup. The complainant agreed that his description to the Crown Prosecutor included detail which had not been mentioned in the interview with police. He agreed that his recollection of putting his hand on the accused’s hand and moving it away was a more recent memory. He said that he had experienced flashbacks in recent times. He said that he first remembered the incident around the time of speaking to his Aunt Tess.
With respect to the bathroom incident he said that it occurred on the same day that the accused had pulled a knife on Uncle Sonny.
In relation to the lounge room incident he said that he was 100% sure that he had been wearing a nappy. He said he remembered having a nappy because he remembered looking down as the accused was putting his hand “down there”. He agreed that he was going to school at that stage five days a week. He agreed that he did not wear nappies at school and said: “it was usually just nappies out of school and undies in school”.
With respect to the statement that all the children were wearing nappies he agreed that Harriet would have been about seven but claimed that she could have been still wearing nappies. He claimed that neither he nor Michael were properly toilet trained at that time.
The complainant was then asked about the time that he lived with the Bridgestones, that is the Christian couple as he referred to them, in 2015. He was cross-examined about having described “kind of forgetting” about the incidents while he was living with them. He was asked:

“Q. When you say ‘I kind of forgot about it’ are you saying there that while living with them you didn’t have a memory of Richard doing these things to you?
A. While I was distracted, yes; I didn’t have a memory”

He was asked specifically regarding the bathroom incident:

“Q. Your memory about Richard touching you came back to you after you left the Bridgestone’s care?
A. Yes.”

In due course he agreed that his memory about the bathroom and the accused touching him in the bathroom had come to him in about July or August 2016.
He was then asked questions regarding the time when Tess started living in the granny flat in [redacted] Street Moree. He agreed that it was clear that Tess did not like the complainant’s mother, in his words “because of everything that she put us through”. He agreed that Tess hated Richard Howard.
The complainant agreed that he would have visits from DOCS caseworkers. He agreed that he had told one of the caseworkers in about mid-2019 that he believed his mother was putting Richard ahead of her children. He understood that all she had to do was to get rid of Richard and the children could go back and live with their mother.
He agreed that he had strong feelings towards both his mother and the accused. He agreed that he felt that Richard was the reason that they couldn’t return to their mother.
The complainant had some difficulty in recalling which year he told his Aunt Tess. He agreed that it was possibly in 2019. He was asked if he had spoken to Tess in 2019 about sexual abuse, why was it that the police weren’t told until March 2021. He said he wouldn’t have a clue and it might have been later than 2019 that he told his Aunt.
He agreed that his Aunt Tess had probably suspected that something had happened in the past that he had not told to anyone. He denied that the word “hidden” or “hiding” was a word that had been used by Aunt Tess. He agreed that he had not told the case worker from DOCS about the alleged sexual touching.
He also agreed that when he was interviewed by police in February 2013, in which he spoke about being touched on the “rude parts” by various named persons, he did not make such an allegation about Richard Howard. He had been five years of age at the time of that interview. In the course of that interview he said that his brother had touched him on the “rude spot” and that it “wasn’t really my Uncle Calvin”. He also named a boy at his school who was “a brown boy” who also touched him on the “rude spot”. He had identified the “rude spot” on a schematic diagram of a male person.
In cross-examination he said he did not remember having told someone about being touched improperly by Uncle Calvin. The complainant agreed that at the time of the interview in 2013 he possibly did not have a memory of Richard Howard touching him. He agreed that he knew at that time that it was wrong for adults to touch your rude parts. He did not recall what had led up to him being interviewed by police at his school at that time.
He was then questioned about an incident in October 2013 at his grandfather’s cottage at [redacted]. He recalled the police being called to the house but could not recall a suggested occasion where his grandfather Barney had got angry because he would not get in the bath.
He agreed it was possible that there was an incident where his grandfather grabbed his shirt and tried to take it off to put him in the bath. The suggestion was put to him that the incident he described in the bathroom with Richard was possibly him remembering being manhandled by his grandfather to get into a bath. Although agreeing with that possibility he went on to say that he did not remember the event with Barney.
In cross-examination he was next taken to a further interview that he had with police in January 2016. At that stage he was eight, turning nine.
The complainant agreed that in the course of that interview police had asked him if he had ever told anyone that Uncle Calvin had touched him on the bottom. He agreed that his response was “No, cos I’m not sure if it was Uncle Calvin or Uncle Steven.” He agreed that at the time of the interview he possibly had a memory of either Steven or Calvin touching his bottom. He said that he no longer had a memory of what he was describing in the interview.
He agreed that he had been asked if anyone else had touched him in a way that made him feel uncomfortable and that he had answered “No. No one else.”
He agreed that he did not mention Richard Howard doing anything to him because he had no memory of that occurring. He agreed that the memory of Richard touching him was a memory that had come to him some time after the January 2016 interview.
In his continued cross-examination he agreed that it was possible that he had told the caseworker in mid-2019 that Richard Howard had flogged him. He agreed that he said that he had hit the side of his head on the corner of the lounge and that he had been knocked out. He agreed that he had described his mother, Richard Howard, Marg Wren and Steven all sitting on the lounge looking at him when he woke up.
It was put to him that he had told the caseworker that he was around three or four at that time. He agreed that his memories about the accused harming him and touching him had first come to him after he had been told things by Tess about his mother. He agreed that he was very angry at Richard Howard at that time and that he did not want his mother and Richard Howard in a relationship.
He did not accept that it was possible that those circumstances had impacted his memory of what he said Richard did.
He was next cross-examined about an interview with Police in May 2021 in which he had told police about two incidents in which Wyatt Earp had sexually touched him while he was living with Wyatt and Wyatt’s partner Ruth. He agreed that it was possible that he had described an incident in the bathroom but said that he did not now remember what he had said Wyatt had done. He did recall another incident in the kitchen which he described.
He became distressed at the suggestion that he had spoken about something happening at Wyatt’s home while he was having a bath or getting into the bath. In due course he agreed that he had possibly told police that Wyatt had touched him on the arse and on his dick when he was in the bath or getting into the bath. He said he no longer had a memory of that event.
He denied the possibility that he was mixing the memories up and blaming Richard Howard for what Wyatt Earp had done. He said that the bathrooms were completely different and had a different layout.
He was then asked about an incident in his bedroom with Wyatt Earp in which he claimed that Wyatt had tried to put his fingers between his arse and also touched his penis. John said that he didn’t exactly remember what he said in the interview but that he now has no memory of Wyatt ever touching his penis. He said that he did have a recollection of him touching his bottom.
He said that he was not mixing up a memory of Wyatt Earp with the occasion that he claimed Richard Howard had put his hand under the nappy. He said that was because when he was with Wyatt Earp they were not in nappies.
He agreed that he had also described accidentally breaking a cup while in Wyatt Earp’s home and that being an incident that could trigger Wyatt to anger. He denied that he was confusing that memory with the occasion of a broken cup with Richard Howard.
The cross-examination then turned to a further interview with police in 2021 in which he had described sexual touching by Steven Pearce. He had described Steven putting his hand near his arse and touching his penis. He denied mistaking that incident and effectively transposing it to Richard Howard.
He agreed that he told police that Steven Pearce had put his hand down his pants and denied confusing that incident and transferring it to Richard Howard.
With respect to the May 2021 interview regarding Wyatt Earp, John had told the police that he had told one of the Christians they were living with about the stuff that was happening with Wyatt but “they just didn’t do anything about it”. He was asked whether that meant he remembered about Wyatt when he was living with the Bridgestones. He replied that it was possible but that he did not remember telling “the Christians”.
He disagreed with propositions directly put to him that the accused had never touched him on the bum or on his penis. He disagreed with the proposition that he was toilet trained and that he was not regularly wearing nappies after they moved into [redacted] Street. Each of the discrete allegations was put to him in terms as not having happened. He did not accept those propositions.

In re-examination he clarified that when he said he did not have memories of the offences while living with the Bridgestones, the physical abuse and “some of the sexual stuff” had remained in the back of his mind.

EVIDENCE OF HILDA CLARKE

The next witness called was Hilda Clarke. She was the lady referred to as “Aunty Hilda” by the complainant. The complainant’s mother Helen Bush and Hilda Clarke were first cousins. Mrs Clarke had been living in Tasmania when the complainant was born but moved to [redacted] Street Moree when John was about two years old. She recalled her cousin, Helen Bush, living nearby on the corner of [redacted] Street and [redacted] Street, Moree.
Mrs Clarke recalled Richard Howard starting a relationship with Helen Bush when the complainant was three or maybe four years of age. She was aware that eventually they moved into a house together in [redacted] Street.
In due course, in October 2016, the complainant, John, his older sister Harriet, and his step-sister, Frieda, the child of Helen and Richard Howard, went into the care of Mrs Clarke. At that time she was still living in [redacted] Street but in due course moved into a house with a granny flat in [redacted] Street, Moree. For a period of about eight or nine months, Mrs Clarke’s daughter, Tess, lived in the granny flat at that house.
Mrs Clarke described an occasion when John had what she described as a “meltdown”. She said he had been seeing counselling and on this particular day he broke down and cried and had a cuddle with her. She said that John told her that “something” happened to him with John. Mrs Clarke said that she just looked at him and said “say no more” and then rang Moree Police Station. She took him into the police station that day and subsequently made a statement to police.
In cross-examination she agreed that she had said in her statement “I have never liked Richard Howard”. She agreed that John had said something to the effect that Richard did “stuff” to him and that his mother would just sit there on the lounge and “just watch and not say anything”. She agreed that although he didn’t specifically say what had happened, he mentioned the names of Wyatt Earp, Steven Pearce and Uncle Calvin.
Mrs Clarke agreed that she had had conversations and home visits with a departmental case worker named ‘Sarah’ but denied any recollection of Sarah having said that Mrs Clarke and Tess should be careful about statements made about Helen and Richard and others around the children.

EVIDENCE OF TESS CLARKE

The next witness called was Tess Clarke. She was the daughter of Hilda Clarke. She said that whilst growing up she had a lot of contact with the complainant’s mother who she called Helen. She also knew Margaret Wren who she had grown up around. Margaret lived at premises in [redacted] Street, Moree. Richard Howard had originally been in a relationship with Margaret Wren and lived with her at [redacted] Street together with their young son Michael. While Tess was still a teenager she would visit [redacted] Street regularly.
When Tess was around 18 years of age Helen started to visit the premises at [redacted] Street very regularly. When Helen Bush first started visiting those premises, Helen was still in a relationship with Steven Pearce. In due course, Helen Bush started a relationship with Richard Howard. His former partner Margaret Wren then started a relationship with Steven Pearce. All of them ended up living in the one house.
Tess Clarke described the house in detailed terms where there were piles of dishes, dirty clothes and other general rubbish everywhere through the house. Tess was not able to say at what stage Harriet and John became toilet trained. She recalled them still wearing nappies after they had started walking but she couldn’t recall how old they were. She couldn’t recall if they were still wearing nappies at [redacted] Street.
Tess described always being known as Aunty by the children even when she was only a teenager. She described Helen’s two brothers, Calvin and Sonny both sometimes visiting [redacted] Street. She described the children being permanently taken from their mother and being aware that they had stayed with the Bridgestones. She was also aware of them having stayed with Wyatt Earp and Ruth.
When the children were placed in the care of Tess’ mother, Hilda Clarke, in October 2016, Tess was, at that time, living in [redacted] in Queensland. She would visit her mother maybe every couple of months and on some other occasions Harriet and John went up to [redacted] to visit her.
At the end of 2018 Tess moved back to Moree and moved into the granny flat at her mother’s home in [redacted] Street. She described a conversation with John which, she was positive, had taken place in 2019.
Tess had the conversation with John in the granny flat because she described her mother having heard some inappropriate things. She had a conversation with John about his younger sister Freida. In due course John started crying and Tess told him that if anyone had done something to him he needed to speak up. John nodded and said that he did not want to upset his mother.
Tess said she would write down a list of names and all John needed to do was to say “yes” or “no” with respect to the names. The names she wrote down included Richard, Steven, Harry, Sonny, Calvin and Barney. She asked if there was anyone else and John added Wyatt. His response was “yes” with respect to Richard, Steven and Wyatt. He also said “yes” regarding Harry but “no” with respect to Sonny and Barney.
Harry, who had not been previously mentioned in the trial was Harry Little. He was the complainant’s grandmother, Elsie Bush’s brother. Tess Clarke said that she told her mother and step-father about what John had said. After a period of time in which she described John not being ready to talk, in March 2021 her mother rang her and said that John was now ready to report to police.
In cross-examination Tess agreed that she told John that his Mum was prioritising Richard over him and Harriet. She also told him that it was because she cared more about Richard than them that they did not go back into her care. She also agreed that she had told John that his nanna, Elsie Bush, did not just die of old age but that she had died of starvation. Elsie Bush had passed away in May 2012.
Tess said that she did not tell the children that their mother had not fed Elsie and was the cause of the starvation but she was aware that they had been told that by their Aunt Dorothy (referred to by other witnesses as [redacted] and [redacted] in the Family Tree which was handed up by the Crown).
Tess agreed that various things that she said to John would have impacted on his feelings towards his mother. She also agreed that she understood the comments would impact on the child’s feelings towards Richard Howard as well. However, she denied having wanted to achieve those outcomes.
Tess denied that the talk about Richard Howard doing things to John had come after the statements about his mother and Richard Howard. She claimed that the disclosure had occurred in the early months of 2019 and described her recollection as to time “because it was when my ex-wife came back, which I remember when she came back”. Tess Clarke agreed that there was a lapse of two years before John went to the police in March 2021. She agreed that she had not disclosed the allegations to any of the case workers and said that was because John asked her not to.
Tess agreed that the caseworker, Sarah Noakes, had raised concerns with Tess about her making negative statements about Helen or Richard either to the children or in their presence. Sarah Noakes had indicated her concern that it was impacting on the children’s feelings towards the parents. Tess agreed that she suspected that there had been abuse which was why she asked if anything had happened to him.
Tess said that she had discussed with her mother what the “yes” and “no” meant in respect of each of the named persons on the list . She said that John had described what he thought was not appropriate which included Michael getting his little sister to touch themselves inappropriately. John said he had always asked not to be bathed with Michael for that reason. He said that they made him anyway and that Michael did inappropriate things to him in the bathtub.
Cross-examination from Tess’ statement included John having told her that Richard Howard smacked him so hard that he passed out and woke up on the floor with his pants down. She agreed that he did not say that Richard had indecently touched him. She said that she expressly told her mother Hilda that Richard had hit the children hard. She claimed to have also brought it up with John’s mother, Helen.

EVIDENCE OF MARGARET WREN

Margaret Wren was the next person called. She described having been in a relationship with Richard Howard for four to five years. They had a son together, Michael.
After both couples and three children were all living in the house at [redacted] Street, Ms Wren was specifically asked”:

“Q. When Harriet and John arrived at [redacted] Street to live do you recall at that time whether they were wearing nappies or not.
A. No all children were in undies and bloomers I guess, for girls.”

At one stage when John was six or seven he went through a stage of having accidents where he was “pooing” his pants. She said that that went on for two or three months. She said “it wasn’t like we went through twenty pairs of undies a day but it was regular”.
Margaret said that the children were capable of bathing themselves and the door would be closed “because everyone is entitled to privacy”. She said they never fully opened the door but would poke a head in to check on them.
She said that there were no occasions where the children needed to be looked after by Richard Howard. Her evidence specifically was that during the entire time that John and Harriet were living there they were never looked after by Richard Howard. She said Richard never looked after the children alone.
She described Helen having never been taught cleanliness and described the house in broadly similar terms to Tess Clarke.
In cross-examination she agreed Michael had been diagnosed with Asperger’s. She said that Richard Howard was not someone she could depend on to look after Michael on his own. She said he made dinner most nights and was great in the kitchen. She said he was also great with cleaning and that the girls really didn’t have to do anything in the kitchen besides washing the dishes. She said in terms of clothes, looking after the kids directly, and bathing, Richard Howard did not assist.
She agreed that they had a practice of putting their head in at anytime if the children were having a bath.
She was asked specifically about neighbours in [redacted] Street and said that there were no issues with any of the neighbours. She described Richard Howard having a lot of good interaction with one particular neighbour and his family.
At some stage while John was having bowel accidents Margaret Wren became worried that it might point to the possibility that he had been abused. She spoke about it with her own mother who had worked in a hospital as a sexual assault and domestic violence project officer. She spoke directly with John and asked if anyone had touched him. He indicated that he had been touched on his bottom by Uncle Sonny. Sonny Bush was one of Helen’s brothers.
That assertion was communicated to both Helen and Richard Howard. Richard said that the child should be taken to the hospital to get that checked out and his bowel issue checked out. John was taken to Moree Hospital and was subsequently interviewed at school by police. This would appear to have been the interview which was conducted in 2013.
Ms Wren gave evidence that she had said in her police statement that she vaguely recalled an incident when John was playing with a Nintendo game console which involved moving the controller with your hands while the game was on the TV. In swinging the controller around in the game she believed that John had tripped and hit his head on the TV cabinet. She said that he had no injuries and cried a little bit and was consoled before continuing to play the game.
She recalled the occasion that John and Harriet stayed with Wyatt Earp. This was in the period before Freida was born. The children then went into her care for a period after being taken out of Wyatt Earp’s care. She thought it was longer than four to six weeks that they were with her.
Around Christmas she and Helen went to Sydney. They were then travelling to come back to Moree and stopped in Wyong where Helen and Richard were apparently living at the time.
An incident occurred in Wyong which culminated in Helen not allowing the children to go back to Moree with Margaret Wren. Ms Wren contacted DOCS who in due course removed the children from Helen who was heavily pregnant with Frieda at the time. It was after that removal that the children were placed with the Bridgestones.

EVIDENCE OF SONNY BUSH

Sonny Bush was the next witness. He was Helen’s brother and the complainant John’s uncle. He knew Richard Howard when Richard Howard was in a relationship with his and Helen’s cousin, Margaret Wren. Sonny Bush lives walking distance away from the [redacted] Street premises in [redacted] Street. He would visit every second weekend and walk to [redacted] Street and wait out the front. He did not go inside the house and wasn’t asked to. He thought that he would speak to either Helen or Richard at the front of their premises.
He agreed that he was specifically asked by police if there was any time that he had gone there and had an argument with Richard Howard. He said that he had never had an argument with Richard Howard and there was never a time that Richard Howard came out of the house angry and brandishing a knife. He also told police that he had never seen any injuries on John.

EVIDENCE OF DETECTIVE GALLAGHER

The officer-in-charge of the investigation, Detective Senior Constable Jayne Gallagher was then called.
In addition to conducting the interview with John Bush regarding the allegations against Richard Howard, she gave evidence that she subsequently interviewed Wyatt Earp and Steven Pearce with respect to allegations against each of them. She confirmed that neither Earp nor Pearce had been charged.
She gave evidence that Richard Howard was arrested on 16 September 2021 following which he participated in a recorded interview. The recording and a transcript were tendered as Exhibit 9 and 9A.
Howard indicated in that interview that he had legal advice not to speak to the Police but said that he was prepared to do so because, as he said, “I know for a fact that I am innocent.” Mr Howard indicated that he had brought allegations into the “limelight” previously when John had made allegations but that at that time his own name had never been mentioned.
He was asked about the children being left to be babysat by himself and he told the police: “It was more with Steven”. He indicated that he didn’t do things with the kids and that it was always their mother or Marg.
He also spoke about the occasion with the grandfather at the cottage at [redacted] when John refused to take his clothes off to have a bath. The physical exchange with Barney Bush was described as: “He put his hands around his throat.”
Richard Howard was asked about any issues with nappies regarding John. He responded that he and Helen were not together when John was still in nappies. He said that John was in first or second year of primary school when they were living at [redacted] Street.
He was then asked about any physical issues as John got older. Mr Howard described the bowel accidents which he said was the reason which had led them to question what was going on with the child. The accused said that the child was losing control of his bowel “a little bit” and he had been really worried about it because when he himself had been 13 years of age he had been sexually assaulted. He said he had been bleeding from his own bowel for his whole life ever since. He said he had gone out of his way to protect “these kids” from that.
He said that after speaking to Helen about it they had straight away organised to take him to the hospital and also advised police.
The accused was asked if he remembered an occasion in the lounge room when John was potentially running around and hit his head on the TV cabinet. Howard said that he did not remember that incident at all.
The specific allegations were then put to him. He was asked about the occasion with a broken cup and whether he would have punished the child by sending him to his room. He said he did not remember the particular incident but he might have sent the child to his room if such an incident had occurred. He was asked if he then went into the room and apologised to the child. Howard said that he would not be going to say sorry to the child if the child was the one that had done something wrong. The child would be the one that would be required to apologise. He was specifically asked about sliding his hand up and down the child’s hip and stroking his bottom while sitting on the bed. Howard replied: “That’s definitely a no, ‘cos I don’t even sit on their bed.”
He was then asked about an occasion of watching a movie with the child alone. He said that there were no times that he was left alone with the kids at all. He said “The girls would not let that happen because of my paranoia with my mental health.” He said if a movie was being watched then the whole family would have been there. He denied having been left alone in such a circumstance.
He was asked about touching the child’s penis when he was wearing a nappy and he again told the police that the child wasn’t even around him when he was still wearing nappies.
He was then asked about an occasion when he was allegedly preparing a bath for the child. The detail of the alleged indecent assault was described. Howard denied being involved in bathing the child and described the allegations as “A load of bogus crap”.
The death certificate of the complainant, John Bush’s grandmother, Elsie Bush, was tendered as Exhibit 7. It showed her date of death as [redacted] 2012. Of some note, amongst the multiple medical conditions identified as contributing to her death, starvation was not one of them.
The death certificate of John’s mother, Helen Bush was tendered as Exhibit 8 disclosing that she died on 22 December 2021.
Detective Gallagher then gave evidence that with respect to the incident described by John of Uncle Sonny turning up at the house on the occasion of the alleged incident regarding the bath and Richard Howard, she had taken a statement from Sonny Bush who did not recall any such incident.
With respect to the occasion described by John where a neighbour had come to the house making enquiries about the welfare of the children, the detective had undertaken a canvas of the houses in the vicinity of [redacted] Street and was not able to find anyone with any knowledge of such an incident.
In cross-examination by Mr McGorey, the detective confirmed that the type of allegation said to have been raised with the school teacher by John would fall within an expectation of mandatory reporting responsibilities. The enquiries revealed that the school teacher provided a statement to police. He had no recollection of any suspicious bruising or reporting of an assault and that no record had been located at the school or the Department of Education with respect to any such report.
The detective confirmed that the accused had never been charged with indecent or sexual type offending other than the present matters.

STATEMENT OF HELEN BUSH

A statement taken from the late Helen Bush was tendered as Exhibit 10. The statement was dated 16 September 2021 some three months before she passed away.

Helen Bush described living at an address in [redacted] Street, Moree between approximately 2010 and August or September 2012 after her mother had passed away.
She stated that whilst living at [redacted] Street, John had told Margaret Wren and Richard Howard, who were living at [redacted] Street, about having been interfered with sexually. He identified a kid named [redacted] and also that he had been touched by Helen Bush’s Uncle, Harry Little. She described having taken the child to Moree Hospital. She became aware that the child protection police from JIRT had spoken to John at his School.
Shortly after this time she moved into [redacted] Street with Richard Howard. Margaret Wren had commenced a relationship with Steven Pearce and they all lived in the one house. Helen Bush’s previous relationship with Steven Pearce had broken up in about December 2011 and she had regularly visited [redacted] Street Moree where Richard Howard had originally been living with Margaret Wren.
She described an incident having occurred around September 2012 in which DOCS had become involved as a consequence of a problem with her father Barney Bush at [redacted].
Her brother Calvin also lived at those premises. She confirmed that the only person she ever left her kids with by themselves was Steven Pearce.
She described John completely stopping using nappies by the time he was two to three years of age. She said that by the time they moved into the [redacted] Street premises both Harriet and John were toilet trained.
She said that at [redacted] Street either herself or Marg would run the bath for the children. She did not recall any occasion that Steven Pearce or Richard Howard would have run a bath for the children.
She said that Richard’s punishment for the children would be to send them to their room and that he did not hit the children. She described that the neighbours on both sides of where they lived in [redacted] Street were people they had good relationships with. She described the circumstances of the children going to live with Wyatt Earp in about March or April 2015. She said the children stayed with Wyatt and his partner Ruth for about six months. She was informed by her own sister [redacted] that Harriet had said that she saw a syringe in the bathroom at Wyatt Earp’s home. Helen Bush told DOCS about it and the kids were removed from those premises.
They were placed in Margaret Wren’s care temporarily. Helen Bush at that time was living in Wyong and Strathaven. She told Police that she had not suspected any sexual abuse towards John until he made disclosures to Richard Howard and Margaret Wren regarding allegedly being touched by other named persons. She said that John always called Richard ‘Dad’ and was happy to be around Richard Howard.
She described with hindsight not really feeling good about Steven Pearce, and being concerned that he paid more attention to the kids than you would normally expect. The first she knew about any alleged sexual abuse against Richard Howard was when an Apprehended Violence Order was issued by Police against Richard Howard. She was asked by Police of her memory of John ever breaking a cup. She said that she had a memory of him breaking a cup when he was about three when they were living at [redacted] Street. She had no memory of a cup being broken after they moved into [redacted] Street.
She was asked specifically about any memory of John or Richard Howard having fights or arguments. She said that she had no such memory and never caught them being angry at each other. She was asked about the assertion by John that Richard Howard had arguments with neighbours at [redacted] Street about the welfare of the children. She said that she had no memory of this ever happening.
She similarly had no memory of there ever being an argument between Richard Howard and any of her brothers. She also said she had no memory of John ever hitting his head on the corner of the TV cabinet but did recall an incident where he hit his head after falling off a trampoline. She had taken him to hospital after this incident which had occurred at the [redacted] at her father’s place, on an occasion before she and Richard Howard had got together.

STATEMENT OF GARY BRIDGESTONE

In addition to the statement of the complainant’s mother, the Crown tendered a statement by Gary Bridgestone (Exhibit 4).
Mr Bridgestone states that he and his wife Annabelle were respite foster carers from the end of 2014 until December 2020. They had been accredited by Family and Community Services (FACS) which subsequently went under the name Department of Communities and Justice (DCJ). Mr Bridgestone confirmed that Harriet and John came into the care of he and his wife in January 2015. They subsequently agreed to also take into their care the girl named Frieda Howard after she had been born.
Mr Bridgestone described the two older children as having signs of physical neglect including poor nutrition and other physical indications of neglect when they first came into their care.
In the course of having the children in the foster care of the Bridgestone’s, various conversations occurred which revolved around the children being asked about people that they did not like. Both of the children individually identified Uncle Sonny and Uncle Calvin, their mother’s brothers, as people they did not like. They also mentioned Wyatt (Earp) who had been their previous foster carer. John also indicated that he did not like Steven (Price). Mr Bridgestone said in these types of conversations the name of Richard Howard was not brought up. Both children spoke lovingly about their mother Helen and although not specifically discussing Richard Howard, they did not say anything negative about him.
Mr Bridgestone and his wife had been advised to be on the lookout for any sexualised behaviour in the children. Mr Bridgestone described one occasion when John was lying on top of his sister Harriet who was lying on her back on the concrete near a swimming pool in the backyard. John was moving his body in a “humping” motion. Mr Bridgestone’s recollection was that he dealt with the matter calmly and explained that it was inappropriate behaviour. He told the children that they might have seen adults doing something like that but that kids did not do it. The matter was brought up with the FACS counsellor. Following a session with the counsellor John brought up the name Steven. There were no other specific details.
In due course the Department of Communities and Justice made the decision that the children should live with their relative, Aunty Hilda Clarke, who was Helen Bush’s cousin.
Mr Bridgestone outlined his ongoing and occasional contact with Richard Howard and said that he had never seen any behaviour or heard of any behaviour regarding Richard Howard which he would find concerning.

STATEMENT OF PETER SIMPSON

A statement (Exhibit 5) was also tendered by the Crown from the school teacher identified by John, Mr Peter Simpson, who had been a teacher at Moree East Public School. Mr Simpson indicated that John had been one of the boys in his class during 2015 in Term 1 and part of Term 2. John had left the school during Term 2 in May 2015. Mr Simpson did not recall having any in-depth serious conversations with John about his home life or any issues in any other part of his life. He had no recollection of seeing any injuries on John or having any conversations about having been physically assaulted. Mr Simpson indicated his awareness of the mandatory reporting circumstances and said that had he received any such information from the child he would have gone to his supervisors and acted on it. He indicated that he had done so on other occasions and believed that he would have done so had John brought any such matter to his attention.

STATEMENT OF DETECTIVE SERGEANT GREG RYAN

A statement was also tendered from Detective Sergeant Greg Ryan (Exhibit 6). His statement replicated a notebook statement following a meeting with Hilda Clarke and John Bush at Moree Police Station on 6 March 2021. Mrs Clarke had contacted the Police Station by telephone and had advised Sergeant Ryan that John had disclosed to her about times he said he had been molested and abused by his mother’s ex-boyfriends.
In the course of a conversation with the child by Detective Sergeant Ryan, John had nominated Richard Howard, Steven Pearce and Wyatt Earp as having sexually abused him.

CHRONOLOGY FROM AGREED FACTS

The narrative of Agreed Facts (Exhibit 3) includes the following:

On 11 February 2013 John Bush was taken to Moree Hospital by Helen Bush and Richard Howard. They reported that John had recently been incontinent with faeces including as recently as the previous night. John had reported having been touched on his private parts. Nothing of medical significance was observed during an examination and John was discharged the same day.

On 15 February 2013 David Patient attended Moree Police Station and reported that he had visited John at the [redacted] Street premises on Tuesday and that John, without prompting, had told him that Uncle Calvin had touched him on the groin while they were in the lounge room and his mother was outside having a smoke. David Patient also reported that in the preceding two weeks John had had difficulty going to the toilet and had the bowel accidents.

On 21 February 2013 John was interviewed by JIRT. I note in passing this was the interview in which he identified his “rude spot” in the diagram; described being touched by his brother; and also described being touched by the other schoolboy. In addition, he said in this interview: “it wasn’t really my Uncle Calvin”.

At approximately 8:15pm on 15 October 2013, police were called to attend at [redacted] in relation to an incident at the caretaker’s cottage. This was the residence of the complainants grandfather, Barney Bush.

Police did not attend on the evening of 15 October 2013, but did attend the caretaker’s cottage at 7:30am the following morning. The grandfather, Barney Bush, advised police that his daughter Helen and the two children, Harriet and John, had been at his premises the night before. He told police that when Helen wanted to leave to go home, the children did not want to leave and a verbal argument ensued between himself and Helen.

Later that day Police spoke with Helen Bush. She told them that there had been a verbal argument and that it had commenced because Barney Bush had been trying to get John to have a bath. John did not want to have a bath and Barney struggled with his grandson trying to take John’s shirt off. In the course of the struggle, John’s shirt had got caught around the child’s neck. Helen said she was going to take John to the doctors later that day.

Police asked to see the child and did not observe any marks or redness to his neck.

For a period of about 6 months between approximately May 2014 and November 2014, John and his sister Harriet stayed with Wyatt Earp and his partner Ruth in [redacted], a small town a short distance [from] Moree. Neither the children’s mother Helen, nor Richard Howard, stayed with the children during that period.

For approximately two months between about November 2014 and early January 2015, the two children, John and Harriet, stayed with Margaret Wren at her residence in Moree.

In January 2015, Helen Bush signed a Temporary Care Agreement for both of her children, John and Harriet, with FACS.

This Agreement provided for the Department to make arrangements for the care of the children. The recorded reasons for the Agreement being entered into included “homelessness and the imminent arrival of sibling Frieda”.

The children were consequently placed into the care of foster carers, Jeff and Annabelle Bridgestone, on about 12 January 2015.

On [redacted] 2015, Frieda Howard was born to Helen Bush and the accused, Richard Howard.

The newborn child, Frieda, was removed from the care of his mother and placed in the care of the Secretary of the Department. In early February, Frieda was placed with the same foster carers as her step-siblings.

In due course, all three children were placed under the care of the relevant Minister.

On 6 January 2016, John was interviewed by police. At that time, he and his siblings were still in the care of the Bridgestone's.

Between approximately August 2016 and October 2016, all three children were moved from the care of the Bridgestone's and placed into the long-term care of Hilda Clarke. Mrs Clarke was the first cousin of Helen Bush. Tess Clarke was her daughter.

Between 2018 and 2021 a number of caseworkers from FACS, subsequently renamed the Department of Communities and Justice (DCJ), conducted home visits on the children at the residence of Hilda Clarke.

One of the assigned caseworkers, Sarah Noakes, was engaged in monthly home visits from approximately September 2018 until the latter part of 2019. This included periods of time when Tess Clarke was also living at the premises.

During home visits in January 2019 Sarah Noakes made notes with respect to Tess Clarke having moved in and “her influence over the feelings” which the children had about their parents, namely Helen Bush as their mother, and Richard Howard, who was still her partner. The caseworker recorded in her notes about the importance of the children being supported regarding feelings towards the parents. She noted that Tess Clarke had stated that she “knows she can get a bit vocal sometimes and knows that might need to be toned down a bit.”

At a subsequent visit by the caseworker in July 2019 John told her that he was remembering times when he had been living with his mother Helen and Richard Howard when Richard Howard had physically hurt him. He described Richard “flogging” him and an occasion when his head hit the side corner of the lounge and he was knocked out. The caseworker kept detailed notes of this conversation which included John saying: ”I remember when I woke up I saw everyone was sitting on the lounge all around me looking.” He went on to describe those present as including his mother and Richard, Margaret Wren, and Steven Pearce.

The complainant also described another occasion when he said Uncle Sonny had stepped in to stop Richard from flogging him. The caseworker recorded having subsequently spoken to both Hilda Clarke and Tess Clarke about the conversation with John. Hilda Clarke indicated that memories of these physical assaults had previously been disclosed to herself and Tess.

In a subsequent conversation with the caseworker, John described his mother as being “pathetic” for having chosen Richard Howard over the children.

At no time prior to Moree Police being contacted by Hilda Clarke in March 2021 was there any report to the departmental caseworkers from either Hilda Clarke or Tess Clarke that John had disclosed or suggested any indecent or sexual assault on him by Richard Howard.

On three occasions, 27 April 2021, 19 May 2021 and 2 June 2021 John Bush was interviewed by NSW Police. The Agreed Facts concluded with a summary of portions of a police interview with Harriet Bush conducted on 29 June 2021. These included Richard Howard hitting John and sometimes throwing items at him. She described having been left alone on some occasions with Steven Pearce. Harriet also confirmed that John had never said anything to her prior to March/April 2021 about Richard Howard indecently assaulting him. Similarly, she had not witnessed any apparent sexual or indecent interaction by Richard Howard with John when they lived together at [redacted] Street.

At the conclusion of the Crown case it was indicated that the accused relied upon the denials in his record of interview and was not intending to go into evidence.

CROWN SUBMISSIONS

The learned Crown Prosecutor commenced her closing submissions with reference to a matter about which she submitted there was no controversy, namely, that the complainant’s life had been nothing short of unimaginably tragic. She described him having been failed by his mother, his father, the adults who lived under the same roof as him, and the Department of Community Services, and, to some extent, the community at large in that nobody saw anything, not a neighbour, not a teacher.
She correctly identified the major point of dispute being whether, against the tragic background and given the number of different people who allegedly offended against the child, his evidence might be at a standard that it could be relied upon beyond reasonable doubt. She described him as intelligent, articulate and courageous. She described the cross-examination of him by Mr McGorey of counsel as enormously fair and measured. She said that the question that was squarely posed was whether the complainant’s evidence could be relied upon in circumstances where there was a history of abuse and a history of other alleged perpetrators.
She acknowledged that there was an issue about potential contamination of his evidence by Aunt Hilda or by Tess Clarke. In the Crown’s submission that potential contamination was explained by the complainant himself.
However, she accurately identified the real issue that attended his evidence was the lack of corroboration, more so than any potential issue of memory or contamination.
The learned Crown also identified a further issue with respect to the delay in complaint. She accepted that in the various interviews conducted by Police historically, there had been specific opportunity to raise complaint about the alleged conduct of the current accused and that notwithstanding allegations being raised about the conduct of others, the complainant had made no such complaint about Richard Howard.
The Crown acknowledged, that notwithstanding the Court directing itself in terms of s 294 of the Criminal Procedure Act, in the circumstances of the current matter, the opportunity to complain had not been availed of. The Crown acknowledged that a similar circumstance attended the complaint confined to physical assaults which had been made to the DOCs caseworker, Sarah.
The Crown pointed to what she described as a great degree of detail in relation to the complainant’s versions of each of the counts and also a lack of embellishment. With respect to one area of, not simply a lack of corroboration but contradiction by a not insubstantial preponderance of evidence, namely whether nappies were being worn during the time at [redacted] Street, the Crown submitted that there were reasons for some of those witnesses to have effectively given an account which placed themselves in a better light. The Crown relied on what she submitted was the complainant’s “really clear recollection of being there in the nappy.”
With respect to Counts four and five, the learned Crown Prosecutor acknowledged that the Crown had “particular difficulties.” She acknowledged that the evidence of Uncle Sonny with respect to the incident with the knife and the lack of corroboration from the school teacher, Mr Simpson, highlighted these difficulties.
The Crown acknowledged that the extent to which evidence amounted to contradiction of the complainant and more than just a lack of support, was the reason that the Crown acknowledged this area as creating the “biggest difficulties” for the Crown.
The learned Crown Prosecutor, it must be said in the best tradition of fairness by the Crown, acknowledged that the complainant must at least be mistaken about having told his school teacher Mr Simpson about being physically assaulted at his home. The Crown accepted the difficulty in terms of the complainant’s recollection with respect to that issue.
With respect to the record of interview with the accused, the Crown submitted that the variety of mental health issues referred to in that interview would require viewing his evidence with a level of circumspection. The Crown pointed to the portrayal of the cleanliness of the house and the denial of physical disciplining as being matters that the Court would not accept.

The Crown ultimately submitted that the question of whether the Crown evidence was reliable in the circumstances which she had described, or whether there was a doubt as to whether the child being confused or the evidence being tainted, or whether the issue of the lack of corroboration meant there must be a reasonable doubt. Ultimately, the Crown said that they relied upon the evidence of the complainant and his clarity.

SUBMISSIONS FOR THE ACCUSED

Mr McGorey, counsel for the accused, submitted that the experience of the Court showed that honesty in itself was not a guarantee of reliability. Similarly, it was submitted that the ability to provide precise detail about the layout of premises and of related items, is similarly, not a guarantee of reliability. Mr McGorey referred to the Crown submission relying on the details given by the complainant and submitted that what was more significant than an ability to provide such detail was the complete lack of corroboration from other witnesses with respect to the specific details.
With respect to Uncle Sonny being threatened with either a sword or a knife there was no apparent reason why Uncle Sonny would either forget about it or lie about it, nor had it been suggested to him that he would have any reason to lie about it.
Similarly, with respect to the tendered statement of the school teacher Mr Simpson, there was actual evidence that what was described by the complainant had not occurred.
Mr McGorey submitted that a doubt created in relation to those details could not be quarantined and must flow to a consideration of the other events.
The defence submitted that questioning about having been touched from an early time in the complainant’s life had the potential to impact on the clarity of his recollections. It was submitted that it would be remarkable if the complainant was not vulnerable to either suggestion or a possible conflation of memories.
Mr McGorey highlighted what he referred to as a striking absence of corroboration with respect to the question of nappies being worn at the time of the incidents in the lounge room.
The positive impression of the complainant’s attitude towards Richard Howard as described by Gary Bridgestone was referred to as highlighting a lack of consistency in complaint regarding the accused.
The defence pointed to circumstances of what might be viewed as false memories. Mr McGorey also pointed to the differences between the evidence of Tess Clarke and Hilda Clarke both as to timing and what had been disclosed.
It was submitted that with respect to previous allegations regarding the conduct of Wyatt Earp, Steven Pearce and Uncle Calvin, the inability of the complainant to recall the earlier memories that he had reported to Police must lead to the possibility of conflating different memories.
The defence submitted that the conduct of the accused and the complainant’s mother in taking him to hospital because of a concern that he may have been sexually touched was completely inconsistent with the accused himself being an abuser. Taking the child and placing him into the hands of professionals who would ask questions of him was submitted to be entirely consistent with the conduct of an innocent person.
The defence oral submissions were supplementary to detailed written submissions which I have marked for identification and placed with the file. In addition to the matters to which I have already referred, it was submitted that the denials by the accused in his recorded interview should be positively accepted. Further, and at the very least, the possibility of the truthfulness of those denials had not been excluded when one considered the entirety of the evidence in the trial.

CONSIDERATION

This trial, including the detailed examination of evidence during the pre-trial ruling, occupied some five days. I have subsequently had the opportunity of reviewing in detail the recorded evidence and the transcript of the trial itself.
There is little reason to doubt the honesty of the complainant. However, as accurately identified by both parties, the critical question is the reliability and accuracy of his apparently honestly held recollections.
There are clearly some critical issues in respect of which there is not only an absence of corroboration, but positive evidence which has the effect of contradicting the described recollection of the complainant. These include the denial by his Uncle Sonny of any incident involving anger, hostility or more particularly a knife or a sword, between himself and the accused as had been described by John.
This specific evidence of his Primary School teacher being told about physical assaults is implicitly contradicted by the careful and detailed statement obtained by police from Mr Simpson.
The precise detail and purported specific recollection of looking down at the nappy he was wearing during the alleged incident in the lounge room is totally unsupported by any of the many witnesses who provided statements or were specifically asked in this regard. These include each of the adults who were asked about this topic including the accused himself, Tess Clarke and Margaret Wren.
Of particular significance was the statement taken from the complainant’s mother at a time when she was ill with cancer and at a time when the significance of the questioning about the nappies would not necessarily have been evident to her.
These three incidents of, in my view, contradiction, create a serious doubt about the reliability of the complainant’s testimony on those various counts.
His assertions regarding conduct towards him of other persons and the subsequent asserted absence of memory about his prior complaints in those regards, also creates a serious question regarding the reliability of his memory from time to time. It is significant that the asserted “flashbacks” of memory regarding the accused, and the absence of memory about sexual misconduct by the accused at the time of earlier interviews, provides a significant contrast with the asserted recollection of assault by others at an earlier point in time, and the subsequent loss of those memories.
The delay in complaint, which might otherwise have many different explanations, is difficult to accept in circumstances where the child was prepared to discuss sexual touching or misconduct by others. He was on more than one occasion in a situation with the case worker from the Department and during the extended period of foster care with the Bridgestone's where the opportunity for disclosure was consistently available. The complainant did not mention any of the current allegations against Richard Howard in the various earlier interviews with police, despite making allegations of sexual impropriety allegedly committed by other named persons.
The perception by Mr Bridgestone of the complainant’s attitude towards Richard Howard during the extended period of foster care stands in stark contradistinction to the attitude displayed towards Richard Howard by the complainant following the return to Moree of Tess Clarke.
The likely influence of the complainant’s attitude towards his own mother and to Richard Howard was the subject of specific notation by the caseworker from FACS. The clear suggestibility of the child and hence the possibility of the contamination of his “memory” cannot be excluded. The possible conflation of numerous of the identified prior incidents provides yet a further matter of concern.
In all of the circumstances I am comfortably satisfied that there exist numerous reasons to entertain a reasonable doubt with regard the guilt of the accused with respect to each of the alleged incidents.
There will accordingly be a verdict of not guilty with respect to each matter.

Decision last updated: 30 June 2023

Medium Neutral Citation:	R v Howard (a pseudonym) [2023] NSWDC 210
Hearing dates:	21 March 2023 – 25 March 2023
Date of orders:	16 June 2023
Decision date:	16 June 2023
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Verdicts of not guilty with respect to each matter.
Catchwords:	CRIME — Sexual offences — Indecent assault of a child CRIMINAL PROCEDURE — Trial — Judge alone EVIDENCE — Witness evidence — Corroboration — Delay — Reliability — Prior sexual conduct
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	*AK v Western Australia* (2008) HCA 8; (2008) 232 CLR 438 *Fleming v R* (1998) 197 CLR 250 *Liberatov The Queen* (1985) 159 CLR 507 R v Murray** (1987) 11 NSWLR 12
Category:	Principal judgment
Parties:	Rex Richard Howard (a pseudonym) (Accused)
Representation:	Counsel: V Morgan (Crown) C McGorey (Accused) Solicitors: NSW Director of Public Prosecutions (Crown) Legal Aid (NSW) (Accused)
File Number(s):	2021/265159
Publication restriction:	Non-publication order for the accused, the complainant and any matters identifying the complainant including the names of related persons.