R v JDS

District Court

New South Wales

Case Name:	R v JDS
Medium Neutral Citation:	[2021] NSWDC 579
Hearing Date(s):	5 October 2021 – 14 October 2021
Date of Orders:	27 October 2021
Decision Date:	27 October 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdicts of Guilty on Counts 1-5; Verdict of Not Guilty on Counts 6-7. For orders see [301].
Catchwords:	CRIME – Judge alone trial – historical child sex offending – aggravated indecent assault – aggravated sexual assault – sexual intercourse – sexual assault – assault & commit act of indecency - victim under 10 – victim under 16 years – under authority – tendency evidence – context evidence.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995 (NSW)
Cases Cited:	Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) JDS (Accused)
Representation:	Counsel: L. Lungo (Crown) J. Ellis (Accused)
File Number(s):	2020/20534
Publication Restriction:	S 578A of the Crimes Act 1900 applies to as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings

Judgment
Counts 1 and 2
Count 3
Count 4
Count 5
Count 6 and Count 7

Evidence in the Crown case
Evidence of DSE
Evidence of JE
The accused’s ERISP
Evidence of DE
Evidence of ME
Evidence of the Officer in Charge (“OIC”) Detective Harvey Cole
Evidence of Dr A McDonald

The accused’s case
Evidence of the accused, JDS
Evidence of LS

The Crown address
The accused’s address
Directions of law
Assessment of witnesses generally
Assessment of witnesses in the Crown case
Assessment of witnesses in the accused’s case
Findings of fact
Determination
Orders

JUDGMENT

JDS pleaded not guilty upon arraignment on an Indictment containing the following counts:
(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS.
(2)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS.
(3)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS.
(4)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between 5 and 7 years of age, being a person under the authority of JDS.
(5)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DSE, a child then under the age of 10 years, namely between 5 and 7 years of age.
(6)Between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS.
(7)Between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS.
By consent, the trial proceeded to be heard by Judge alone commencing on 5 October 2021. This judgment records my verdicts and my reasons for reaching those verdicts.
The elements of each of the offences are as follows:

Counts 1 and 2

(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales;
(2)Had sexual intercourse with DE;
(3)A person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age;
(4)Being a person under the authority of JDS.

Count 3

(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales;
(2)Incited DSE;
(3)A person then under the age of 16 years, namely between 5 and 7 years of age;
(4)Who was under the authority of JDS;
(5)To commit an act of indecency towards JDS.

Count 4

(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales;
(2)Assaulted DSE;
(3)And at the time of the assault, committed an act of indecency on DSE;
(4)A person then under the age of 16 years, namely between 5 and 7 years of age;
(5)Being a person under the authority of JDS.

Count 5

(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales;
(2)Had sexual intercourse with DSE;
(3)A child then under the age of 10 years, namely between 5 and 7 years of age.

Count 6 and Count 7

(1)Between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales;
(2)Assaulted JE;
(3)And at the time of the assault, committed an act of indecency on JE;
(4)A person then under the age of 16 years, namely between 2 and 5 years of age;
(5)Being a person under the authority of JDS.

The Crown bears the onus of proving each charge beyond reasonable doubt. That involves proving each of the elements listed above, beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of each of the charges beyond reasonable doubt. There is no onus whatsoever on the accused. The accused is presumed to be innocent unless and until the Crown proves each of the elements of all or any of the offences beyond reasonable doubt, so as to establish the guilt of the accused on any or all of the counts.
I am mindful that speculation cannot enter into my considerations, and inferences may be drawn from established facts only if such an inference is a rational inference.

Evidence in the Crown case

Evidence of DSE

The Crown called DSE who was born in July 1984. He gave evidence that he was between four and six years old when his mother first met the accused. At that time, the family were living in [M]. In about 1989, the family moved to a home in [A] and he attended primary school. He had two brothers, DE and JE. Plans of the townhouse at [A] became Exhibits A2 and A3.
When asked about his relationship with the accused, DSE answered “it was terrible. I was scared, frightened.”
DSE gave evidence of the accused physically assaulting him as follows:
“Q. Could you tell his Honour what happened?
A. Well, one day, on the certain day, he was feeding [AS] a can of food, baby food, and he walked out of the room and I was licking the lid, and he stuffed the lid in my mouth and pulled it out, and I’ve got scarring on either side of my mouth. I didn’t go to the doctors. It just self-healed. And, he just said,
“You little bastard” ..(not transcribable)... Another time I was in the shed. I can’t remember what I did wrong, but he picked me up by the scruff of the neck and threw me headfirst into the blue gravel.
Q. Just going back to the can in the mouth, how old were you at that time?
A. I would’ve been about five.
Q. When he threw you on the blue gravel, do you have a memory of your age when that happened?
A. In between five and six.”
He was then asked whether there were any other incidents that occurred. He gave the following evidence:
“A. Yeah, he wanted to play - called me into his and mum’s room one day and wanted to play a game of doctors and nurses, and he was laying on his stomach, and he asked me to massage his bum.
Q. Where did that happen?
A. In [A].
Q. Was it inside the house or outside of the house?
A. Inside the house in his and mum’s room.
Q. Do you have a memory of where your mum was?
A. No. She would’ve been out doing errands or something. I’m not sure.
Q. Did your mum work when your family was living at [A]?
A. Not that I’m aware of, no.
Q. Did [JDS] have any clothes on?
A. No, not at the time.
Q. What happened when he asked you to massage his bum?
A. I didn’t think anything of it, so I just done what he said. If not, I would’ve copped a flogging.
Q. Sorry, I missed that last bit.
A. If not, I would’ve copped a flogging.
Q. Why do you say that?
A. Because he always used to threaten me and beat me up all the time.
Q. When you said you did what he asked you, that is massaged his bum, what did you actually do? Could you tell the judge?
A. No, I didn’t - I haven’t really talked about it. Can you repeat the question? I forgot.
Q. Okay, that’s fine. You said that he laid down on the bed; is that right?
A. Yeah.
Q. And, that he didn’t have clothes on; is that right?
A. Yeah, but then later on he didn’t have any clothes on.
Q. How was he laying on the bed? Was he on the side, his back, his front?
A. On his stomach on the right-hand side of the bed.
Q. What did he say to you?
A. “Here, massage this”, and I didn’t think anything of it because I was scared and intimated, so I just did it.
Q. Can you tell his Honour, the judge, what you actually did?
A. Jumped onto the bed and with both my hands, massaged his bum.
Q. At that time, did he have any clothes on his bum?
A. No.
Q. How long did you massage his bum for?
A. It would’ve been about ten to 15 minutes.
…
Q. How did that end, do you recall?
A. I could hear mum pull up and open up the gate, and he said, “Don’t tell anyone, otherwise I’ll flog you, you little shit”.”
The Crown identified this as evidence of what the Crown relies on in relation to Count 3.
DSE then gave evidence of an event that occurred two or three days later. He gave the following evidence:
“Q. Can you tell the judge what happened on this occasion?
A. He called me into the room, said again we were going to play a game, doctors and nurses. And, he pointed to his penis and asked me to pull his penis and he showed me it.
Q. Just pause there. Sorry to stop you there. Firstly, what room was this?
A. In mum and [JDS]’s room, the first room on the left-hand side when you enter the house.
Q. Did [JDS] have any clothes on?
A. No.
Q. Can you just tell his Honour again what [JDS] said to you?
A. He pointed towards his penis and asked me to pull his penis. At the time, I didn’t think anything of it. I was just scared, frightened.”
The Crown submitted that was the evidence it relies on in relation to Count 4.
DSE was then asked:
“Q. What did you do?
A. I pulled his penis for about ten to 15 minutes, and then he - within that timeframe, he stuck his fingers in my bum.”
The Crown relied on this evidence in relation to Count 5.
DSE then gave the following evidence:
“Q. Were you still pulling his penis when he put his finger in your bum?
A. Yes.
Q. How long did that incident occur, that is of you pulling his penis and him putting--
A. About ten to 15 minutes.
Q. Did that include his putting his finger in your bum, that period?
A. Yes.
Q. How did that incident end, if you can recall?
A. I heard mum pull up at the gate again, so that’s how it ended, and he just said, “Shut up, don’t say anything. We were playing a little game”.
Q. You’ve told his Honour about the incident of you massaging his bum, and what you just have said then about pulling his penis and him putting his finger in your bum. Were they the only times that things of that sexual nature occurred between you and [JDS]?
A. That was the first time of the pulling the penis and the massage of the bum, but it went on for weeks, months, whenever no one was home until--
Q. Yeah, sorry.
A. I was going to say until I went to live with my uncles.”
DSE gave evidence that he did not tell his mother about what happened to him until about a year ago. When asked why he said:
“A. Because I was embarrassed, ashamed, felt like it was my fault, and I just didn’t want to face the fact that I was abused when I was a kid.
Q. An incident occurred with the skipping rope. Do you recall that?
A. I don’t know what I did wrong, but yeah, he hit me with a skipping rope a number of times in the backyard.
Q. Yeah, sorry?
A. The backyard.
Q. In the backyard, okay. Was there anyone else there at the time?
A. No, not that I’m aware of.
Q. How many times did he hit you with the skipping rope?
A. To tell you the truth, I don’t know.
Q. Do you recall that that lead to [JDS] being charged with hitting you with that
skipping rope?
A. I believe so, yes.
Q. How old were you at that time, do you recall?
A. Would’ve been the ages of four and six.”
DSE then identified photographs taken by police of bruising on his body following that incident. They were admitted over objection as Exhibit A4. The photos were relevant to the physical abuse meted out to the complainant, which was allowed as context evidence in a pre-trial ruling by Judge Harris. The objection was to relevance and the prejudicial effect of the evidence pursuant to s 137 of the Evidence Act 1995 (NSW). As there was no risk of misuse of the evidence, this being a Judge alone trial, the photographs were admitted.
DSE then gave evidence of an incident when the accused used a garden hose in the middle of winter to hose off his younger brother JE, who had defecated in his pants. He saw this occur on six or seven occasions when JE was aged about three or four years old.
DSE gave evidence that he made a statement to police on 21 December 2018. He had not spoken to either of his brothers DE or JE before making that statement. Nor did he speak to them before making a further one page statement on 12 November 2018.
In cross-examination, DSE confirmed that his sister AS was born in January 1991.
DSE was asked about the first time he disclosed the sexual acts that he alleged the accused had done to him. He first told a psychologist, Meg Perkins, that he used to massage the accused’s bum, that he was too embarrassed and ashamed to admit that the accused would get him to “pull” the accused’s penis and that the accused would stick his fingers in his bum. Ms Perkins had written a letter on his behalf and he had then spoken to Detective Edmonds on 15 November 2018.
It was put to DSE that before he spoke to Detective Edmonds on 15 November 2018, he had spoken to his mother. He gave the following evidence:
“Q. Your mother told you that things had happened to your brother [DE], and with your brother [JE], and with your brother [PS] as well?
A. No, I wasn’t disclosed by that. I got told in a letter through Meg, that mum sent to Meg, that [JE] and [PS] had been abused. But I was unaware that [JE] and [DE] was abused, or if they were.
Q. Do you accept that you told the detective on 15 November 2018 that similar things happened to my brothers, [DE], [JE] and [PS]?
A. I'm not sure on that. I can't remember what was said.
Q. How did you become aware of allegations made by [DE], [JE] and [PS]?
A. I had no idea with [JE] and [DE] about their allegations because we hardly ever talk. [JE] I talk to every couple of days but we don’t talk about past stuff. I seen a letter that mum had sent to Meg saying that [PS] had been tampered with in his bottom. That’s how I found out about that, I never found out through my mum.
Q. So this letter you say your mother wrote a letter to your psychologist. Is that correct?
A. No, it was a letter from the – I went to two doctors in Sydney. It wasn’t letter from my mum, it was a letter to my mum from what do they call them? Paediatricians.
Q. Have you seen yourself this letter from a paediatrician?
A. Yeah, it was Meg showed it to me a number of years ago.
Q. So the only person that showed you this letter was Meg Perkins?
A. That's correct.
Q. Have you ever seen this letter as a letter that was given to you by your mother has your mother ever given you this letter?
A. No, and she hasn’t spoken about it.
Q. So before you went to see Detective Edmonds, you said you had not spoken to your mother about the allegations of sexual acts?
A. No.
Q. Correct?
A. Yeah, correct. Never spoken about it to anyone, too embarrassed. Ashamed.
Q. When Meg prepared this letter on 12 November 2018, you had not spoken to your mum about sexual allegations?
A. No. I’ve only just told mum within the last 12 months or so.
Q. If you look at the document number 7 which is the statement that you signed on 12 November 2018?
A. Yeah.
Q. You said the statement was read to you before you signed it, correct?
A. Yeah, I believe so.
Q. I will read for you, this is the fourth paragraph from the bottom, and if you don’t understand I can repeat. “My mother has told me that my elder brother [DE] disclosed sexual abuse by [JDS] to treating psychologist.” Can you read this sentence?
A. Yeah.
Q. My question to you is, did you tell that to whoever was writing this statement?
A. No. The [DE] got I don't know, seen a psychologist or something, or psychiatrist in gaol. That’s, yeah, how I found out about that.
Q. I suggest to you that on the day this statement was signed, you had already spoken to your mother, and your mother had told you that [DE] had spoken to a psychologist in gaol about being abused. Do you agree or disagree?
A. I agree, but I wasn’t like, told what was said, and how he was abused.
Q. Do you agree that your mother, before you went to police, had told you that your brother was accusing [JDS] of sexual misconduct?
A. No, I I was the one that brought it all up, and then my brothers heard that I went and made a statement, so they went and made their own statements or
their own report.
Q. You say you’re the first one within the three who started talking?
A. Yes.
Q. Is that what you said?
A. Yes.
Q. But are you saying the first time you spoke about it is in November 2018?
A. Yeah.
Q. But at the time that you were discussing those sexual acts by [JDS], you had already been made aware that your brother had disclosed sexual acts on him. Do you accept that?
A. Yeah, I do, but I'm not sure what sexual acts. I was just told by mouth that he’d been assessed by somebody in gaol, and that’s where that went from there.
Q. Who told you that, that he had been assessed in gaol?
A. My mother, but she didn’t say what had happened, what was the outcome. What injuries, or whatever happened. She didn’t tell me anything, she just said that he’s seen a psychologist or a psychiatrist in gaol. That was about it. And me, I was the only that started it all, that went to the police first and wanted some justice. So.”
The document in tab seven of the defence bundle, being a letter prepared by the complainant’s psychologist and signed by DSE on 12 November 2018, became Exhibit 1.7.
DSE gave evidence that his mother sent other documents but that all the documents went through Meg Perkins to the police. It included a letter from Dr Andrew McDonald, a letter from Department of Community Services (“DOCS”) dated 29 July 1999 and a handwritten document from his mother (tabs 8, 9 and 10 in the defence bundle). A further letter from Dr McDonald was contained in tab 11. These documents became Exhibits 1.8 through to 1.11.
DSE gave evidence that in 2018 he was smoking marijuana and drinking alcohol on a daily basis. He gave evidence that “it was a way to help coping with the demons that go on in my head from all this stuff” (sic).
It was put to DSE that he had discussed the allegations made by his brother DE, which he denied. He gave the following evidence:
“Q. I suggest to you that you became aware of the type of allegations that [DE] had made against [JDS] when you gave a statement in November 2018.
A. I knew that he spoke to a psychologist or a psychiatrist, but I'm not sure what was - in, like, detail. So I wasn't sure what abuse went on with any of my brothers, we never spoke about it.
Q. I suggest to you that your mother told you that your brother disclosed similar sexual abuse from [JDS]. Do you agree on the word similar?
A. I'm not 100% sure.
Q. What I put to you is that you have had conversation with your mother before going to police and during this conversation, your mother had told you that what you're saying [JDS] did to you is similar to what [DE] says [JDS] did to him.
A. No.
Q. Do you agree or disagree?
A. I disagree. I only knew of the paperwork that was sent to Meg Perkins of what happened to [PS] when he was a baby.”

DSE was then taken to paragraph 21 of the statement he made on 21 December 2018, which read “mum has told me that my brother [DE] disclosed similar sexual abuse”. He accepted that that is what he told the Detective and he was asked:
“Q. I suggest to you that in December 2018 you were made aware, you knew what [DE] had said about [JDS], that it was similar to what you were saying?
A. No, it was similar, but mum never told me exactly what went on. She just said it was a similar case.
…
Q. What I suggest to you is that by that time you had told your mother what you said [JDS] had done to you?
A. Yeah.
Q. So you’ve already had a conversation with your mother about what you said [JDS] did to you?
A. Yeah.
Q. During that conversation your mother told you that [DE] had disclosed the same sort of sexual abuse. Correct?
A. Yeah, but she didn’t say what specifically type of sexual abuse, she just said it was similar. And I haven’t seen any documents or anything at all, been told anything on what happened with [DE].”
DSE then gave the following evidence:
“Q. Do you agree that when you met with Detective Edmonds, you said to Detective Edmonds similar things happened to my brothers, [DE], [JE] and [PS]. Do you agree or you don’t remember?
A. I agree.
Q. How did you come to know the allegations made by [JE], [DE] and [PS]?
A. Well, I didn’t know what allegations they had made, but only my own. It was never spoken about, we don’t talk about that stuff. [DE], I haven’t had any contact with for about six years, seven years, and [JE], we keep regular
contact on the phone, but we don’t talk about anything that were past. We just talk about general daily stuff, like going fishing and stuff.
Q. How did you come to say to Detective Edmonds that what [JE], [PS] and [DE] were saying was similar to what you were saying?
A. I wasn’t sure, made aware of that. I was only made aware of what had happened to [PS].
Q. What is that that happened to [PS]?
A. With the warts that he had on his bum, that were burned off.
Q. Who told you about warts?
A. It was in the letter that was given to Meg from my mum, from the paediatrician from Dr McDonald.
Q. You became aware of that when you were an adult. Correct?
A. Yes.”
DSE gave evidence that he went to live with his uncle PE first and then his uncle RE. He was not sure if he lived with them after the skipping rope incident. He gave evidence that the physical abuse from the accused occurred before his siblings PS and AS were born. The physical abuse started in [M] and continued when they lived in [A], however, the sexual abuse started in [A].
DSE was questioned about the circumstances in which he was hit with a skipping rope by the accused. As a result of that incident, DOCS were notified. He gave the following evidence:
“Q. Do you remember speaking to anyone working at DOCS?
A. Yeah. They asked me had I been abused sexually and I said no cause I was still scared of what would happen if I said yes. And they just - basically, their therapy was draw a picture of the mean, nasty man, screw it up and throw it in the bin. That was their way of therapeutic practice. But, no, I didn't say anything about the abuse because I was too scared of what would happen when I got home.
Q. Are you saying that you did not disclose any sexual abuse to DOCS because
A. That's right.
Q. Yes. So is that your evidence, that when you were assaulted with the skipping rope, you had already been sexually abused by [JDS]?
A. Yeah, as far as I know.”
In respect of Count 3, the first incidence of alleged sexual abuse, DSE gave the following evidence:
“Q. Is it your evidence that the first incident that you describe as sexual is the massage of [JDS]’s bum?
A. Yes.
Q. Your evidence was that you're not sure whether your mother was there for this particular incident, correct?
A. No, no one was home. It only ever happened when no one was in the house.
Q. Is that your evidence that it happened in the bedroom of [JDS] and your mother?
A. Yes.
Q. Are you sure there was no one else in the house at that time?
A. Would have been only [AS] cause she was a little baby, or would've been [PS] cause he was a little baby. So it would've been either one in the house.
Q. Are you guessing now or you have no recollection?
A. No, I'm not guessing, I'm just not sure which child was in the house at the time, whether or not [AS] had been born or [PS]. But being so close together, cause they're only a couple years apart, one of them would've been home.
Q. But you're not sure?
A. No, but [AS] or [PS] would've been there because that's what I recall cause I used to try and hide underneath the cot to get away from him.
Q. Are you saying it could be [AS] or it could be [PS] or it could be both of them or it could be no one? Is that what you're saying?
A. It's one of the siblings, either [AS] or [PS].”
DSE was then referred to paragraph 8 of his statement dated 21 December 2018, where he told police that at the time of that alleged offence, “[AS] was in her bed”.
It was put to DSE that the skipping rope incident occurred in December 1990, at a time when AS was not yet born.
The defence case was put to DSE as follows:
“Q. I suggest the reason why you’re getting confused is that this never happened, [JDS] asking you to massage his bottom when [AS] was there, or no one was there?
A. Yeah, it did happen, and it’s scarred me for life.
Q. What I suggest sorry?
A. I was even now, like it’s I get flashbacks and memories of it, and it’s yeah, horrific.
Q. Of massaging [JDS]’s bottom?
A. And the beatings, and also the masturbation of him, and him putting his fingers in my bum.
Q. What I suggest to you is that at times [JDS] asked you and all the other children to massage his back, his lower back. Do you accept?
A. No.
Q. At times he asked even to walk on his back?
A. No, not that I’m aware of, no.
Q. That when you and the other kids massaged his back there was nothing sexual. You accept?
A. No, I don’t, cause it was sexual. It was he was on the bed naked when it happened. Then a few days later after that, it was when the sexual abuse started with the him showing me how to pull his penis, or play with his penis, and the fingers in the bum.
Q. So when you say that you went to massage the backside of [JDS], it’s your evidence, isn't it, that [JDS] was completely naked. Correct?
A. Yes. Yes.
Q. Do you accept that you didn’t tell police that [JDS] was completely naked?
A. I’m pretty sure I did. I thought I did.
Q. You said his pants were off?
A. Yeah, well, that’s pretty much naked, isn't it?
Q. Is that daytime? This is happening during daytime, right?
A. During daytime, yes, correct.
Q. You said that at that time there’s another child in the bedroom?
A. Yeah. Well, I think it was [AS], but it would have been [PS].
Q. And that [JDS] is completely naked in the house?
A. Yes.
Q. And he’s calling you to come to him. Correct?
A. Yes. To come in the room.
Q. You’re saying your two other brothers were gone, [DE] and [JE]?
A. Yeah, they were out.
Q. Where is your mother?
A. I’m not sure. Doing errands. I’m not sure what she was up to, but she was out.
Q. That’s the first time ever, is it, that you say you saw [JDS] completely naked?
A. No, because I seen him completely naked the first time when I had to massage his bum.
Q. Well, I’m talking about the massage of the bum. That’s why I’m saying that’s the first time you ever see your stepfather naked; correct?
A. Yes.
Q. And, he’s calling you.
A. Not that day. That day was just massaging of the bum. About two or three days later, that’s when it got really serious with the masturbating and the fingers in the bum.
Q. It was your evidence, wasn’t it, that when he called you to massage his bottom, he was completely naked; correct?
A. Yes.
Q. So, that’s the first time you ever see him naked.
A. When I massaged his bum, yeah.
Q. You’re saying that you massaged his bum, and then you were interrupted because you heard the gate; correct?
A. Yeah, which was my mum getting home from wherever she had been for the day.
Q. That’s your recollection today of what happened.
A. Yes.”
DSE was then referred to his statement and asked as follows:
“Q. Can you look at your statement? Do you agree that paragraph 8 or 9, you never said your mother was coming and that she interrupted the massage of the bottom? So, if you look at the bottom of paragraph 9, you said, “I massaged his backside with both hands, and that was it for that day. Mum was out. I don’t know where she was”.
A. Yeah, that’s right.
Q. So, are you getting it confused, or is it by convenience that you are repeating the same story so that your story is straight?
A. No, I’m telling the truth, and telling my own story. Why would I try and say someone else’s story? I’m here to tell what’s happened to me when I was a kid. It’s embarrassing and I’m ashamed of it, but I’ve got to get it out because I’ve been dealing with this for 30 odd years, and--
Q. But, sir, if that’s the first time that you ever see your stepfather naked, and he’s forcing you to touch his bottom, which is - so, you were, what, four years old, six years old?
A. In between four and six years old, yeah.
Q. So, that must have been something that you would remember as something traumatising; correct?
A. Yeah, I remember a lot of the beatings and the abuse, sexual, physical and mental.
Q. So, if that’s the first time ever, I suggest to you today that you should have a clear recollection of who was in the bedroom at the time. Do you agree with that?
A. I’d agree with that, but as I said, it would’ve been [PS] or [AS] because they were only toddlers at the time.
Q. Yes, but you didn’t say neither [AS], neither [PS] to Mr Crown when he asked you details about this incident; correct?
A. No, I said [AS] was in the rocker because I thought [AS] wasn’t born then, but--
Q. No, you didn’t say it, sir. You didn’t say [AS]. You did it because I showed you your statement.
A. I’ve had the same statement with me that got sent out.
Q. Do you also agree that when you tried to remember this first instance where you were allegedly sexually abused by [JDS], you said that what interrupted the massage of the bottom was that your mother came and you heard the gate; correct?
A. Yeah. Anytime we’d hear the gate ..(not transcribable).. - pardon?
Q. But, that’s not what you told police.
A. Well, it is what happened.
Q. So, is that your recollection today now? You do remember clearly that when you were massaging the bottom of [JDS] when your brother or sister was in the room and [JDS] was naked, you had to stop the massage because you heard the gate. Is that your evidence?
A. Yeah, I heard the gate. It could’ve been anyone that was getting home, Mum or [DE].
Q. So, did [JDS] say anything to you?
A. Yeah, he said, “It’s our little secret. Don’t say anything, otherwise I’ll flog you”.”
DSE then gave the following evidence:
“Q. So, he said that before you give the massage or after you give the massage?
A. After. He said - first, he said we're going to play a game, doctors and nurses, that was at, like, the start before anything occurred. And then after that he said, "Don't - it's our little secret, don't say nothing or I'll flog you".
Q. Do you accept that what you told police is that first, [JDS] called you in and told you you're going to play a game and not to say anything or you would have a flogging
A. He didn't say - he didn’t
Q. --then you gave him a massage - sorry?
A. He didn't say anything about a flogging until after it had finished.
Q. I suggest to you that that's not what you told police. Can you look at paragraph 8 and tell me whether you agree or disagree?
A. Yeah.
…
Q. Sir, what I'm saying is you did not tell police that after the massage, when you heard the gate, that [JDS] told you, "It's our secret, don’t tell anyone or I'll give you a flogging". Do you agree?
A. Yes.”
DSE was then cross-examined on what occurred two or three days later, after the first incident of alleged sexual abuse. He gave the following evidence:
“Q. Your evidence to Mr Crown earlier was that it was only you, [JDS] and [AS] for the second incident two or three days later. Do you remember?
A. Yes.
Q. Your recollection today is that [AS] was already born, correct?
A. I'm not sure if it was [AS] or [PS] at the time.
Q. How can you confuse your baby brother and your baby sister when one is older than the other and one is a boy, one is a girl?
A. Cause I don’t - like, even still today, I don’t even know how old they are.
Q. But you told Mr Crown about four hours ago that it was [AS]. So is that your memory that [AS] was there?
A. Yes.
Q. So [AS] was already born, correct?
A. I assume so, yes. I'm not sure if it was [AS] or [PS] in the room
Q. Do you agree with me that if [AS]
A. --because of the dates.
Q. Sorry?
A. I said because of the dates.
Q. If [AS] was born for the second incident, do I take it that she was born for the massage on the bottom?
A. No, not that I'm aware. I'm not sure whether it was [PS] or [AS] because the skipping rope incident, whenever that happened in whatever year, the abuse started before then with the massage of the bum. So I'm not sure on the date.
Q. Do you
A. And there's ..(not transcribable).. sorry.
Q. Do you agree at paragraph 10, you did not tell police that [AS] was present ..(not transcribable).. the incident where you said you masturbated [JDS]’s penis?
A. Yeah, he pointed to his penis and told me to play with it and that was that. And throughout that time, he'd put his fingers in my bum for about ten, 15 minutes. And then I heard the gate, it was either [DE] or my mum. At that time, it was my mum.
Q. You said to police that your mother was out and your brothers were out as well, correct?
A. Yeah, [DE] would've been out playing in the street, playing handball or something with his friends. [JE] would've been with mum cause he was only small.
…
Q. [JDS] called you and asked you to play doctor and nurses?
A. Yes, again, for the second time.
Q. And your evidence was that [JDS] had no clothes on, correct?
A. No, not at that time, no, he was completely naked.
Q. Do you agree you did not say that to police either?
A. I did say that to police, pretty sure I did.
Q. Do you accept that it is not recorded in your statement at paragraph 10? You said just that he was in his bedroom, he called you in.
A. Yeah.
Q. I suggest to you you didn’t say that to police, you just made it up today because
A. No.
Q. it’s consistent the other evidence you said about the massage?
A. I definitely didn’t make any of this up, this is my life story, and this is what I’ve had to battle every day of me life.
Q. That’s the first time ever, correct, that you’re saying that you had to touch
the penis of your step father. So do you accept that this is a very important memory?
A. It’s more than important, it scars me every day, to, like, even now. But I did report it to the police when I made this document in 2021, December 2018.”
DSE gave the following evidence of the incident:
“Q. You said that [JDS] put a finger into your bottom?
A. Yes.
Q. How many fingers you said he put in your bottom?
A. I'm not sure at the time.
Q. You said this went on for ten to 15 minutes. Correct?
A. Yes, that was the first time it happened. And it just happened on random other times when no one else was around.
Q. But you said [AS] was around?
A. Adults, I mean. That witness stuff.
Q. The ten to 15 minutes, is that also a coincidence that you said the massage lasted ten to 15 minutes?
A. It’s just a roughly, rough time estimated, that I feel that was in there.
Q. I suggest to you, sir, that this never happened?
A. It did. I swear on my life.”
The defence case was put as follows:
“Q. I suggest to you that you have made up this allegation to support your brothers’ allegation?
A. No, that’s not true at all.
Q. And you have been feeding information by your brothers and your mother?
A. No. I only have contact with my brother [JE] and my mum. I don’t have contact with [DE], so I don’t see how the similarities in the stories when I hadn’t been told what had happened to them. I’d only just been told that they had made statements. I don't know what was in what’s the word, enclosed in the statement. What was said, I don't know. But I’m not making any of this up, this is my life, this is what I’ve had to deal with constantly, it’s been a battle, day in, day out.”
It was put to DSE that from 1992 he could have told his teacher or any of his uncles what had happened to him. He gave the following evidence:
“A. No, because I didn’t feel happy inside. It was terrible, and I still didn’t want to say anything because I was in fear.
Q. You were in fear of what?
A. Of [JDS] in general. He knew where we lived. He knew what school I went to. Yeah, so I was just constantly in fear. It was only just within the last three or four years that I built up the courage to face the demons that’ve been inside with what’s going on and what has gone on. I suffered from night trauma, daily flashbacks, heavily medicated. Mum had DSP because of this.
Q. Sorry, I want to put a proposition to you, that when your mother and [JDS] separated, your mother started making allegations about [JDS] doing things to your sister [AS] and to [PS]; correct?
A. I’m not sure. I’ve only seen documentation on [PS], not [AS].
Q. Some allegations were made well after [JDS] and your mother separated. Are you aware of that?
A. No.”
The statement of DSE dated 21 December 2018 was marked for identification as MFI#1. A further statement dated 24 February 2020 was marked for identification as MFI#2. DSE was then asked:
“Q. I suggest to you that when you're talking about nightmare and that one you've been going through is, I suggest, a very difficult childhood where you were confronted with domestic violence and some physical violence against you by [JDS]. Do you agree or disagree?
A. No, it was mental, physical and sexual.
Q. I suggest to you there was never any sexual violence against you or any of your brothers.
A. I don’t know about my brothers but to me, yes, there was. [PS] I'm made aware of, but my other brothers, I'm not 100% sure because we don’t speak about it.
Q. What you've witnessed is [JDS] being violent towards your mother and that at times, because you were witness, you were involved in some of the brawls between your mother and [JDS].
A. Yeah, I would stand between them so my mum didn't cop a flogging, it would be me.
Q. [JDS] was actually tough with you and your brothers, physically tough?
A. I assume so.
Q. He would sometimes grab you by the ear. Do you remember that?
A. By the ear or the scruff - by the - who, sorry?
Q. Do you remember that, grabbing you by the ear?
A. Yeah, either there or by the scruff of the throat.
Q. And there was some slap happening sometimes?
A. Yeah, slap, openhand or fist closed, skipping rope or jump cord, whichever he could get his hands on or a thin
Q. I suggest to you - sorry?
A. Or a thin bit of stick ..(not transcribable)..
Q. I suggest to you there was no fist.
A. There was. Why are you doubting me for?
Q. Sir, I'm asking the question. Did you get any bruise from [JDS] hitting you with his fist?
A. Yes, but it was always below the shirt or from the knees upwards so you could hide the bruises.
Q. So he would hit you with his fist only on the parts where it would not show, is that what you're saying?
A. Yes. From time to time I did cop a clip around the ears, I was slapped in the head. But that didn’t bruise, it'd only red up, like, just go red.
Q. [JDS] used to slap you and smack you, and he did beat you with a skipping rope after you escaped the house through the window. That's the extent of the physical violence against you personally?
A. No.
Q. I suggest to you that the incident you have described with the tin being pushed into your mouth never happened.
A. It did happen, I've still got the scars from it.
Q. But did you do that to yourself by falling or by being pushed by your brother?
A. No, no, not at all. Happened by [JDS] cause I was licking the lid of the tin of baby food and he walked in and he seen me. And he goes, "What are you doing, you little shit", and he forced it in my mouth and pulled it out.”
In respect of the incident where DSE alleged the accused pushed a lid of a tin can into his mouth, it was suggested to him that that incident never occurred. He said it did happen. The following proposition was then put to DSE:
“Q. Was the reason why you went to police and lodged a complaint because someone had put in your head that you could get some money out of a claim against [JDS]?
A. No. Money doesn’t make anything different. I’ve still got to fight with the demons in my head and everything that has happened on a regular basis.”

He was then asked about a letter prepared by Meg Perkins (Exhibit 1.7). He gave the following evidence:
“Q. I’m saying to you the reason why you prepared this statement is that you wanted to seek some advice to see whether [JDS] could be charged.
A. Well, that’s why I made a statement, yeah, so he can get punished for the things that he done wrong to me and my brothers, or mainly to me. I’m here - I’m, like, representing myself, and just want some justice out of it because you can’t treat kids like that.
Q. Sir, the reason why you have your psychologist preparing a letter like that, and especially the last paragraph is that you want some sort of compensation or reparation for what you alleged happened to you; correct?
A. No, I don’t want any compensations or anything. I just want the justice system to do right and find him guilty as he is. Compensation, if that happens, that happens, but my main focus and goal is that he be held accountable for what he has done to myself.”
DSE was asked about his evidence that the sexual abuse occurred on a weekly basis. He agreed he told police that it occurred when his mother or the other kids were not around. It was put to him that this was inconsistent with his evidence that AS was around, or maybe PS. He gave the following evidence:
“A. There was other kids around, it was just [PS] or [AS], but mum and my older brother and my younger brother [JE], they weren’t present. But, there was a child present. Whether or not I got it mixed up or not, which obviously I have. But I was trying to go around the timeframes that I - trying to work out from when I was four to six years old, like, it's hard to do.”
DSE was asked about the document written by his mother which became Exhibit 1.12. It was put to him that his mother had given him the document to give to police when he met with Detective Edmonds in November 2018. DSE could not remember that. He was asked whether he had told his uncle RE about being abused by the accused and said “no”. His statement to police dated 14 January 2021 was marked for identification as MFI#3. He was then asked:
“Q. Just because you said those instances of masturbation and a finger in your anus happened on numerous occasions - that's what it is, correct?
A. Pardon?
Q. You said that the masturbation of [JDS] and the fact that he was putting a finger in your bottom, you said this happened on a weekly basis, correct?
A. Yeah, it happened on a regular basis, whenever there was no adults or anything around, or my brothers.
Q. And you said it was always the same, it was always you masturbate him and he puts his finger into your bottom?
A. Yes, it was either massaging his bum or playing with his penis or he would be sticking his finger in my bum.
Q. And he never ejaculated, correct?
A. No. Well, at the time I didn't even know what ejaculation was so, no, not to my knowledge.
Q. You've never seen anything that would now make you believe that he did ejaculate, correct?
A. No.”
In re-examination, DSE was asked about the cross-examination about his evidence of the skipping rope incident. He was asked:
“Q. It was suggested to you, she suggested to you that you jumped the fence and [JDS] asked you what had happened, and you told him that you were going to go and burn the school down. Do you recall that being suggested to you?
A. No, not at all. Cause I loved school, it was yeah, like, get away.
Q. But what I’m just getting at firstly is, do you remember Ms Ellis saying that to you, putting that to you that that’s what you said to [JDS]?
A. I remember Ms Ellis saying that, but I didn’t say that to [JDS], no.
Q. I think you said in your evidence when she asked you that that you loved going to school?
A. Yeah.”
He confirmed in his police statement dated 21 December 2018 (MFI #1) that he had told police that he loved going to school.

Evidence of JE

JE gave evidence that he was born in May 1987. The accused came to live with his family when they were living at [A]. He described his relationship with the accused when he was living with the family as “very poor”.
JE gave evidence that he was physically abused by the accused:
“A. He used to bite my cheek. I’m left with a scar on my right cheek. He used - when I was a baby, he used to hose me off as a child when I used to dirty my nappy and stuff like that. He used to do it—
…
Q. Was it always the right cheek?
A. Yes, because I’m left with a faint scar there and I can’t grow hair there at all now. I can only grow hair in patches.
Q. How many times did be bite you on the right cheek?
A. Numerous times.
…
Q. You also said something about you, and I don’t know if you used these words, but you pooed your pants.
A. Yes, I did. I was doing that right up until the age of seven because I was scared for my life around any males until I went to live with my grandmother.
Q. What did [JDS] do in relation to you pooing your pants?
A. He would take me outside in the middle of a thunderstorm, whether it was sunny. It didn’t matter what time, day or night, weather. He would hose me off like an animal.
Q. Did you have your clothes on when he hosed you down?
A. No, no.
Q. Did anything else happen to you physically - I’m talking about the physical now, rather than the sexual - apart from the biting on the cheek and the hosing down?
A. He used to hit us. He used to throw us around like we were ragdolls.
Q. Just pause there. When you say, “He used to hit us”, are you talking about just you, or did you see him do that--
A. No, all of us. All of us. He used to flog us all.
Q. How would he hit you?
A. Open hands, sometimes back hands.”
JE gave the following evidence:
“Q. In relation to what you referred to as the sexual abuse, can you recall firstly when that started?
A. No, I can’t.
Q. Are you able to tell his Honour the sorts of things that happened; that is the type of sexual abuse that you referred to?
A. He used to make us - he used to make me sit on his lap, and he used to rub my inner thigh. Sorry, I just - yeah. And, he used to make us - make me touch his privates.
Q. When you say privates, what do you mean by that?
A. His penis.
Q. Was this just on one occasion or more than one?
A. No, more than one.
Q. Anything else?
A. Not that I can recall, no.
Q. Do you recall an incident when you were on a bed?
A. Yes.
Q. Firstly, if I can ask you, where did this happen?
A. Elizabeth Way.
Q. At Elizabeth Way?
A. Yes.
Q. Was that at [A]?
A. Yes, it was.
Q. Can you say how old you were?
A. I honestly can’t, no, because I was such - at a young age.
…
Q. Where were you? Were you on a bed?
A. Mattress on the floor.
Q. Where did that occur?
A. Either in a loungeroom or a bedroom.
Q. Who else was present?
A. No one.
Q. Well, it was you and who else?
A. That was it. Just me and [JDS].
Q. What happened on that occasion?
A. We were in the room. I can’t exactly recall what I was doing. And he’d come in and wanted me to sit on his lap. So I ‑ and then yeah, he’d start rubbing my leg, like my inner leg and stuff like that.
Q. Did anything else happen on that occasion?
A. I’m not sure.
Q. Did you say that this incident occurred on a mattress?
A. Yes.
Q. Can you recall what room?
A. No, I can’t.
Q. When you say he rubbed you on the leg, whereabouts on your leg?
A. Like the top ‑ top of your thigh, your inner thigh sort of part. In towards your groin sort of thing.
Q. How long did he rub you near the groin?
A. I can't remember. I can't remember.
Q. Do you recall what clothes you had on, if anything?
A. No. I literally cannot recall.
Q. Can you recall the time of the year?
A. No. It was… I know it would have been probably late 80s, probably 90s.”
This is the evidence the Crown relies on in relation to Count 7.
The complainant was given leave to refresh his memory from a statement made on 10 March 2020. He was then asked:
“Q. On this particular occasion what do you recall happening when you were on a bed?
A. He he got one of my hands to start playing with him.
Q. When you say start playing with him, what do you mean?
A. Playing with his penis.
Q. Did he have any clothes on?
A. Yes.
Q. When you’re playing with his penis, was it on top of clothing, or how did that happen?
A. On top and underneath.
Q. When you were playing with his penis was it on skin or not?
A. Sometimes it was skin, yes.
Q. On this occasion, can you recall?
A. No, I can’t.”
This is the evidence the Crown relies on in relation to Count 6.
JE gave evidence that the sexual abuse stopped when his mum separated from the accused. He then went to live with his grandmother. He was about three or four years of age. He was asked:
“Q. When this was happening, the sexual abuse that you’ve told his Honour about, did you tell your mum what was going on?
A. No. Because I was scared as a child that no one would believe me.
Q. Since then when you became an adult, did you tell anyone like your mum or
A. No.
Q. – your two brothers?
A. No, I haven’t told anyone. I’ve just tried to keep it to myself. That was part of the reason why me and my wife had split up, because I never told her. I’m I’m a person that I can’t talk about my problems.”
In cross-examination, JE gave evidence that he did not remember the accused working when he lived in [A]. When he was aged two, he remained in the care of his mother but went to live with his grandmother when he was three, as his mother couldn’t handle him.
When JE received a telephone call from a police officer in 2019, he was told that the police officer had received statements from his two brothers, DE and DSE. He agreed that he was asked whether the accused had touched him sexually. That was the first time he had ever told anyone about what the accused had done to him. He was not aware that DE had spoken to a psychologist a year before. JE gave evidence that he had reconnected with DSE in around 2019. DSE had not told JE that their mother had told him that DE had spoken about things the accused was doing to him.
JE gave evidence that he told his ex-wife that he had been sexually abused three months before she left him. That was in mid-2015. He denied that he had been pressured by his mum to go and talk to the police. He was then asked:
“Q. Have you had a recent conference with Mr Crown on 21 September, which is about two, three weeks ago, you had a conference?
A. Yes.
Q. Have you said to Mr Crown, “Mum kept pressuring me to open up”?
A. She wants me to open up, but that’s all she’s saying. She wants me to open up, so I don’t keep it in anymore because I suffer from mental health issues and suicide. I’ve tried to kill myself multiple times to try and stop me from opening up to people about all of this. I’ve been on my death bed several times because of trying to forget and trying not to open up to people. Like, I’ve been with my new partner now on and off for three or four years now, and I’m still not opened up to her.
Q. So, you haven’t told your current partner about what you say [JDS] did to you?
A. She’s starting to find out things now. She has - she’s known that something like this was going to come up over the last couple of years. But, I’ve tried to keep her out of it, but she wants to stay involved, but I keep putting a wall up to shut her out because that’s all I know how to do.
Q. My question to you was that your mum kept pressuring you to open up, and your answer was, part of your answer, “Yes, she did pressure me, so I don’t keep it in anymore”. What do you say is “it”? “I don’t keep it”--
A. In.
Q. “In anymore”. What are you referring to, the “it”?
A. Everything with [JDS], the sexual assault, the mental and physical abuse. My partner is too scared to sleep next to me at night because - sorry.
Q. If you can just, sir, sorry, when I ask you a question, just listen to my question and just answer the question.
A. Yes, she has pressured me to open up to people and to see a psychologist, but I keep shutting her down because as I told my mum, it doesn’t matter how much you pressure me to see a psychologist, I said, “It’s not going to stop with the memories, the flashbacks, the nightmares, all that sort of stuff”. It’s not going to stop. I said, “Yes, it’s going to relief some pressure off my shoulders, but it’s not going to get rid of the future pain that I’ve got live with”.
Q. So, what I suggest to you, sir, is that your mother has pressured you to speak to police about [JDS]. Do you agree or disagree?
A. Yes.”
JE agreed that what he had been traumatised by over the years was the violence that he had witnessed as a child, namely, physical violence that he had witnessed and been a victim of as a child. He also agreed that his mother hadn’t been there for him when he was a child, that he had been placed in the care of DOCS and that as a child he was very difficult.
It was put to JE that the accused did not bite his cheek to the extent that it drew blood, to which he denied. He was then asked:
“Q. I suggest to you that what [JDS] used to do to all of the kids is to bite all of you on the cheek in a playful manner. What he used to call sweet bites. Do you agree or disagree?
A. I disagree.
Q. How often do you say he would bite you on the cheek?
A. I can't recall.
Q. If you had the blood on the cheek obviously it would have - it would draw people’s attention to your , wouldn’t it?
A. As far as I know, yes. But as I say, I was too young, so I I wouldn’t know.
Q. Has your mother told you that [JDS] bit you to the cheek to draw blood?
A. Pardon?
Q. The blood reference, is that something that your mother told you that she remembers [JDS] was doing?
A. No, I remember. I remember him doing it, because it used to be excruciating pain.”
JE was questioned about physical violence he was subjected to. It was put to him that it was not true what he had told police, namely, that he had been held against the wall by the throat and flogged with a strap. He said it was all true. He was asked about his evidence that the accused had grabbed his penis and made him touch the accused’s genitals:
“Q. That’s the extent of what you said [JDS] did to you, is rub your groin area, and make you touch his penis. Is that what you said?
A. Yes.
Q. The thing that you remember after reading your statement was an occasion of… (not transcribable).. Correct?
A. Yes.
Q. You’re not able to say where was the bed, correct?
A. No, I can't recall.
Q. You can’t recall who was in the house at the time?
A. No.
Q. When you were giving evidence about a mattress, you cannot say where the mattress was?
A. No. I’ve I’ve lived on mattresses my whole life. You know, around different places, it’s hard to speculate where it where they where it was.
Q. But that’s your first memory of [JDS]
A. Yeah.
Q. touching you, right?
A. Yes. On a mattress.
Q. A very clear memory of your mind, correct?
A. (No verbal reply)
Q. And that’s most traumatising ..(not transcribable).. you remember?
A. Yes.
Q. Is on the mattress that he rubbed your upper thighs where the groin is, between the ..(not transcribable).. groin area?
A. Yes.
Q. The most traumatising memory you have. Correct?
A. No. I’ve had a everything, everything really. The sexual, the physical and emotional.
Q. But of the sexual that you can remember today is being on a mattress and you said [JDS] was rubbing your groin area?
A. Yes.
Q. And then it’s a bed where you said he started playing with his penis?
A. Yes.
Q. That’s it. Nothing that you can recall?
A. No.”
JE was then asked:
“Q. If he had ever done a blow job on you, you would remember that?
A. Yes.
Q. And he never did that?
A. On me? He – he gave me oral.
…
Q. If something like that had happened to you, you would remember. You agree or disagree?
A. Agreed.
Q. If [JDS] had penetrated your anus, you’d remember that?
A. Yes.
Q. But you don’t have any memory of this happening to you. Correct?
A. I don’t have any memory of it, no, but I get flashbacks.”
The defence case was put to JE as follows:
“Q. Sir, you told police that [JDS] used his mouth on your penis and that this happened on numerous occasions. Do you remember saying that to the police?
A. I do remember saying that, yes.
Q. I suggest to you that this is not true?
A. It is true. It is true.
Q. If this is true, how can it be that today the only thing you remember is [JDS] rubbing your thighs and making you playing with his penis?
A. Because I go by the flashbacks that I have that I have on a regular basis.
Q. This is quite a traumatising sort of act that you would remember your whole life. Do you agree or disagree?
A. I agree.
Q. Yet today, when asked if you could recall anything that happened with [JDS], you said no. Do you agree or disagree?
A. Agree.
Q. When you went to police did you have a lot of flashbacks at the time?
A. Yes, I did. I spent the majority of the time in there crying.
Q. So in the police station you had a lot of flashbacks?
A. Yes.
Q. How did you come to have those flashbacks, did you go to see a psychologist, or?
A. No. I don’t talk about my problems, I always keep them bottled up. My partner’s trying been trying to pressure me to see a psychologist and to try and get and help for all of this. Because my partner now is too scared to sleep next to me, because I scream and I throw punches in my sleep. Because of the flashbacks.
Q. And today when you’re in Court you don’t have any flashbacks, other than the rubbing of the groin, and playing with [JDS]’s penis?
A. As I said, as I think when we first started, I’ve got too much stuff going on right now. With my partner and our personal life, and her mother that’s getting ready to pass away. Yeah, and, my head’s all over the shop at the moment.”
JE then gave the following evidence:
“Q. Sir, as of 2019 when you gave your statement, were you using any drugs?
A. No. I had been clean for 12 months, and then I relapsed when I went back to Newcastle. And, then I was on ice again for another 12 months, I think it was, and then I gave it up again, cold turkey, when I moved back to Queensland. And, I’ve been clean off ice for about 18 months now, nearly two years.
…
Q. What I suggest to you, sir, is that everything you have described to police and in Court today about the sexual acts against you when you were two years old is just fantasy.
A. No. I disagree.
Q. I suggest to you that you have been brainwashed by your mother since you were a young boy, and by the--
A. By who? By my mum?
Q. Your mother.
A. No. I’ve been out of home since I was a young age. I moved out of - I fully moved out of home when I was 13 years old.
Q. Do you remember that your mum and [JDS] separated in 1992?
A. I wasn’t there. I wasn’t there when I separated. I was already living with my grandmother.
Q. Are you aware of your mother notifying DOCS in 1993 that you had been sexually abused?
A. Not that I know of. I didn’t have much connection with my mum back then.
Q. Has your mum ever told you that, that when you were a young boy, she had notified DOCS of sexual abuse in 1993?
A. I knew of something along those lines back in the 90s, but I was too young to realise what was going on.
…
Q. I suggest to you that your mother started making allegations and using you and your brothers against [JDS] when she separated. Do you agree, disagree or you don’t know?
A. I disagree. If anything, it was the best thing my mum ever did - was leave him.
Q. Was to leave him?
A. That was the best thing she ever did - was leave him.
Q. Do you know why she left him?
A. Because of all the domestic violence and the sexual abuse.
Q. Because of the sexual abuse in 1992? Do you say your mother knew that there was some sexual abuse happening?
A. I don’t know. I don’t know. As I said, I wasn’t living with my mum then. I was with my nan.
Q. What I put to you is that [JDS] had an affair with a lady called Christine. Are you aware of that?
A. No.”
JE then gave evidence that his grandmother had told him when he was roughly nine or ten years of age that he had been sexually abused as a child, and physically and emotionally abused. He understood that she was referring to the accused. He gave further evidence that he could not remember disclosing any of the sexual abuse when he saw a counsellor in the 1990s whilst in the care of the State.
In re-examination, JE gave evidence about having flashbacks about numerous things. He was also asked about his grandmother telling him he had been sexually abused as a child when he was 10. He was asked:
“Q. The evidence you’ve given today to his Honour about what you say [JDS] occurred to you, is that what happened or what your grandmother told you happened?
A. No, that’s what I told - no, my grandmother hadn’t told me anything other than I was sexually abused, emotionally and physically.”

JE’s statement dated 30 December 2019 was marked for identification as MFI#4 and his statement dated 10 March 2020 was marked MFI#5.
The agreed facts were tendered and became Exhibit A1. They provided as follows:
(1)In September 1981, DE was born.
(2)In July 1984, DSE was born.
(3)In 1987, DE attended Kindergarten.
(4)In May 1987, JE was born.
(5)In 1988, the accused and ME met.
(6)In November 1988, the accused and ME married.
(7)In late 1988, ME, her three sons and the accused moved into premises at [M].
(8)In 1989, DSE attended kindergarten.
(9)In September 1989, PS, child of the accused and ME, was born.
(10)In 1990, the accused, ME and the children move to [A].
(11)In May 1990, JE turned 3.
(12)In July 1990, DSE turned 6.
(13)In September 1990, DE turned 9.
(14)AS, child of the accused and ME, was born in January 1991.
(15)In May 1991, JE turned 4.
(16)In July 1991, DSE turned 7.
(17)In September 1991, PS turned 2.
(18)In September 1991, DE turned 10.
(19)In 1992, JE commenced Kindergarten.
(20)In January 1992, AS turned 1.
(21)In April 1992, the accused and ME filed consent orders relating to the custody of PS and AS.
(22)In July 1994, the accused and ME divorced.
(23)On 1 March 1995, DE attended Orange Police Station and provided a statement in relation to the accused.
(24)In April 1995, the accused acquired Australian citizenship.
(25)In August 2018, DE disclosed to a trauma counsellor at Parklea Gaol that he was sexually abused by the accused.
(26)On 12 November 2018, DSE prepared an informal statement.
(27)On 15 November 2018, DSE attended Tweed Heads Police Station and disclosed that he was sexually abused by the accused to Detective Senior Constable Kurt Edmonds.
(28)On 21 December 2018, DSE made his first statement to police.
(29)On 1 February 2019, Detective Senior Constable Cole commenced an investigation in relation to allegations made by DSE,
(30)On 17 September 2019, Detective Cole made contact with DE and asked him if he wished to make a statement.
(31)On 29 October 2019, DE made a statement to Detective Cole at the Orange Police Station.
(32)On 17 December 2019, Detective Cole had a conversation with JE and informed him that DSE and DE both supplied statements to police.
(33)On 30 December 2019, JE made a statement to Detective Cole at the Macquarie Fields Police Station.
(34)On 21 January 2020, the accused was arrested and charged.

The accused’s ERISP

The accused’s ERISP interview taken on 21 January 2020 was played in court. The transcript of the interview was marked for identification as MFI#6 and the disk became Exhibit A6. In the interview, the accused denied any sexual abuse of DE, DSE or JE when the police put the allegations of each of the complainants to him.

Evidence of DE

DE gave evidence that he was born in September 1981. He was the eldest child of his mother, ME, and had two younger brothers, DSE and JE. He was approximately seven years of age when the accused moved into the family home at [A].
DE gave evidence that the accused drank alcohol and on occasions became very violent, bashing his mother as well as DE and the other boys. As the eldest, he gave evidence that he would stand in front of his mother and the children and try and protect them. In terms of physical violence, he gave evidence that the accused would flog him with “belts, the belt strap, his fists and other things”. He gave further evidence that he had seen DSE get bashed with a skipping rope and JE get hosed down after he had pooed his pants. He also gave evidence that the accused would bite the kids’ cheeks.
When asked about the accused biting kids on the cheek, DE gave evidence that he only saw him bite JE, not DSE.
DE gave evidence that the accused touched him on the penis occasionally. He then gave evidence that the accused would come into his room and have sexual intercourse with him. He gave the following evidence:
“Q. Can you recall when - and we’ll refer to this as sexual activity - can you recall when it first started?
A. The touching, about six months after he moved in. Six - yeah, around there. It wasn’t very long after.
Q. How often would that occur, the touching of your penis?
A. It was daily for a while, until he done what he done.
Q. Daily for a while. Okay. And was it--
A. ..(not transcribable)..
Q. And when that occurred, that is, the touching on the penis, where did that happen, the touching on the penis?
A. In my room, the shower, his bedroom, just around.
Q. When you say touching on the penis, was that on top of the clothes or under the clothes, on your skin?
A. No. On top of the clothes at the start.
Q. On top of--
A. And then it was--
Q. --the - yes?
A. On top of the skin.
Q. You mentioned something else happened apart from that; can you tell his Honour any occasion that something else happened of a sexual nature?
A. I didn’t get that, sorry?
Q. You said that sometime after [JDS] came into the family, that he started touching you on the penis, started on top of the clothes and then it progressed to being on the skin?
A. Yeah.
Q. I think you mentioned - you did mention that he did other things to you before; what was that?
A. He said “suck my penis”.
Q. Are you able to tell his Honour about that particular incident when he sucked you on the penis? Where you were and what happened?
A. It was in his room. It happened in [AS]’s room, our - my room. Is that what you mean?
Q. I’m just asking if you can just tell us about one incident that occurred - a particular incident when you say he sucked you on the penis?
A. Yeah. That was in his bed.
Q. What happened? How did you come to be in his bed?
A. I was massaging him.
Q. How were you massaging him?
A. Like a massage. You rub their skin. And then I - around the side, I was touching his - I touched his penis. He touched mine, and then - yeah.
…
Q. Just pause there. I just want to talk about this occasion first, okay? You don’t know how you got into his bedroom; is that right?
A. Yeah.
Q. And you said before that you were massaging him?
A. Yeah.
Q. How were you doing that? What part of his body?
A. I was rubbing his back, his feet, his legs, his bum. Just massage.
Q. Did he have clothes on at that time?
A. Yeah.
Q. What happened after that?
A. He rolled on the side and then sucked my dick.
Q. Did you have clothes on?
…
Q. Did you have clothes on at that time?
A. I did at the start. At the start, yes.
Q. When you say he sucked your dick, did you have clothes on then?
A. No, he pulled my pants down.
Q. Do you remember what sort of pants you had on?
A. No, I couldn’t recall that. No.
Q. How long did that go on for, the sucking of the dick?
A. On and off for - like, what?
Q. No, just this time. I’m just asking about--
A. That was a quick - it was quick.”
That was the evidence relied on by the Crown in relation to Count 1 on the Indictment. DE then gave the following evidence:
“Q. Did something happen after that?
A. A few months after it, he done other stuff.
Q. I’m sorry, I missed that. A few months after.
A. He done other things.
Q. A few months after - let’s just take it one step at a time - where were you and him?
A. In our room - my room.
Q. Was there anyone else in there apart from you and [JDS]?
A. I can’t recall. No, I don’t - I’m not sure. I don’t know if I shared a room or didn’t share a room. It was a while ago.
…
Q. What happened on this occasion, a few months after the time you said he sucked your dick, and you were in your room? What happened on that occasion?
A. He rolled me on my side and penetrated me.
Q. Did you have clothes on?
A. Yeah, I did. I had a pair of undies on.
Q. When you say he penetrated you, you’ll have to tell the judge how that happened. It could mean a number of things.
A. He came into the room, he rolled me on my side. I was playing with his penis, he rolled me on my side, and then he put his penis where it shouldn’t go, in my anus. I wish I didn’t years ago, but I didn’t because I ..(not transcribable)..
Q. Did you still have your underpants on when he did that?
A. No.
Q. Are you able to say whether his penis was erect or not at that time?
A. Yeah, it was. I can tell you what his penis looks like.
Q. How long did he have his penis in your anus, do you know?
A. A few minutes, five minutes. Not long.
Q. How did you feel at that time?
A. Like I needed stitches. I don’t know. It was hurting. It wasn’t right.
Q. Did you feel any pain?
A. Yeah, I felt like I got ripped.
Q. Did he do anything other than put his penis in your anus?
A. He sucked my penis first before we had done anything.”
That is the evidence that the Crown relied on in relation to Count 2 on the Indictment.
DE then gave the following evidence:
“Q. Did this type of sexual activity continue or not after this incident in your room where you say he put his penis in your anus?
A. No. He did try later on, but it didn’t happen again. It happened again, but it didn’t happen again because I said no, that it hurt.
Q. Are you able to say how long after the incident you’ve just spoken about that happened in your bedroom that the next incident happened where you said it didn’t finish?
A. Yeah, there was like about two - it was - I was still sore because about two weeks after, the soreness went away. It didn’t go away, but it sort of went away. I had a scab there. Is that what you’re asking?
Q. Yes. How long after the first time did he try that again?
A. Two weeks, and then a month after that.
…
Q. Where did this happen when he tried again?
A. In the house.
Q. Are you able to recall what room?
A. I’m pretty sure it was his room at this time. I’m not sure.
Q. What happened on that occasion?
A. I told him no. He tried touching me again, and I said no.”
DE gave evidence that he had, over the years, used a lot of drugs but stopped using drugs seven years ago when he went to gaol. He was asked whether he told his mother and gave the following evidence:
“Q. Did you tell your mum, while [JDS] was still living in the house, did you tell your mum what--
A. I tried to tell her. I tried to tell mum, but mum had her own issues. Mum was getting hit herself. She didn’t believe me.
Q. Was [JDS] still living with the family when you said you tried to tell her mum?
A. I did. Yeah, he was.
Q. Can you remember what you said to her and what she said to you?
A. I said - no, I can’t - all I know, I said he hurt me, that’s all I said. I didn’t say what he actually done. I said he hurt me.”
DE then identified a statement he had made at the Orange Police Station in 1995 which became Exhibit 1.3 (formerly MFI#7) and a statement he made to police on 29 October 2020, which was marked for identification as MFI#8.
In cross-examination, DE gave evidence that he did not remember the accused working when they lived at [A]. He gave evidence that he was six or eight years of age when the accused started touching him and when asked what class he was in at the time said it would have been “like, five or four – three, I’m not sure”. DE also gave evidence that he didn’t remember his mother working when they lived at [A].
DE agreed that he had told police that the accused started to sexually abuse him when he was in about Year 3 or Year 4 at school. He agreed that the accused was violent towards his mother, himself and his brothers, but when it was put to him that the accused’s violence was in terms of “discipline”, he disagreed, saying that the accused would punch them. He disagreed that the only time the accused used an implement was when he lost his temper with DSE. He confirmed that the accused had used a skipping rope to strike DSE in the backyard. He did not know the reason why DSE had been punished on that occasion.
DE was asked about the accused biting the children on the cheek. He said that he had seen the accused doing it and leaving bite marks on both cheeks, but not to DSE.
It was put to DE that the accused had never touched him on the penis, with which he disagreed. It was put to him that he had no recollection of any individual incident of that kind occurring, but he disagreed.
DE agreed that there were two incidents that he could recall with the accused. On the first occasion, the accused had sucked his penis and on the second occasion, in his bedroom the accused had penetrated his anus. He was then asked:
“Q. Now, do you agree that when you went to police, you said that the first time that [JDS] sucked your penis, he also, at the same time, placed his penis in your anus?
A. Yes.
Q. Do you accept that this is a different version of what you have told the court today?
A. No.
Q. Do you accept that when you spoke to police about that [JDS] sucking your penis, you never told police that you massaged him before that?
A. I didn’t think it was relevant.
Q. Today, when you were asked any details about if there was anyone around in the house, you said there was no one else; correct?
A. Yeah.
Q. Do you accept that what you told police was that, in your house all your - all the other kids were there?
A. Outside playing.
Q. So, that’s your memory today, that the first time ever that [JDS] put your penis in his mouth, the other kids were playing outside; correct?
A. No.
Q. What’s your memory, sir?
A. My memory is the kids were outside and he was touching me.
Q. So, it was daylight?
A. Yeah.
Q. Where was your mum?
A. Mum would have been at Joanne’s.
Q. Do you accept that you told police that this first time [JDS] put your penis in his mouth, it was at night-time?
A. I don’t know if it was daytime or night-time. It was - he was touching my penis. He sucked my penis of a night-time, daytime. I’m about to walk out..(not transcribable)..
Q. Are we talking about the first time ever, that your step-father is interfering
with your body, touching your private--
A. Yeah. So it was in the bedroom.”
DE was asked about the statement he made to police on 29 October 2020 (MFI#8). It was put to him that he had given a different version to police at paragraph 12 thereof, by describing the first occasion as both fellatio and penetration of his anus. He gave the following evidence:
“Q. I asked you whether you agree that the incident you’ve described to police is very different from what you have described in court; do you agree or disagree?
A. I disagree. I disagree.
Q. Do you agree that you reported to police that [JDS] penetrated your anus once only?
A. Yes.
Q. And this occurred immediately after he sucked on your penis?
A. Yes.
Q. Do you accept that what you told the court is that there was first an incident where he sucked your penis?
A. Yes.
Q. And that a few months later, without him sucking your penis, he came into your bedroom and penetrated your anus?
A. Yes.
Q. I’m suggesting to you the reason why you gave a different version today is that you are making up those allegations? Can you hear me?
A. Yeah.
…
Q. I’m suggesting you’re making up the allegations?
A. I disagree.
Q. I suggest to you that you have never told anyone that you had given massage to [JDS] in his bedroom on your own; do you agree or disagree?
A. Sorry, can you say that again?
Q. You’ve never told anyone that you gave a massage to [JDS], just you and [JDS] on his whole body; do you agree or disagree?
A. I disagree - I agree, I mean, sorry.”
DE was then asked as follows:
“Q. So, sir, what do you say happened? Was the fellatio at the same time of the penetration of your anus or was the fellatio some months prior to being penetrated in your anus?
A. It started with touching me and then it went to sucking penis and then it was sucking the penis and then penetration. That’s how it went.
Q. So two different incident?
A. Two different times.
Q. Why did you say something different to police?
A. Was probably on drugs. I don’t know. What did I say to police?
Q. I showed you in your statement what you said to police?
A. I know what happened.
Q. I’ll ask you another question. So this thing about [JDS] coming to your bedroom and waking you up in the middle of the night, that was a lie, wasn’t it?
A. No. No, it wasn’t.
…
Q. Do you agree that when Mr Crown asked you, you did not say it was the middle of the night and [JDS] woke me up; you agree?
A. I agree.
Q. And later on, in cross-examination, you actually said that this happened when the other kids were playing outside and it was daytime?
A. That was a different occasion.
Q. I submit to you that this never happened, sir; it’s in your head?
A. Yeah.
Q. Do you agree or disagree?
A. I disagree. I know what happened. I felt that pain. You didn’t feel the pain.
Q. I suggest to you, sir, this is not the first time you’re making up allegations against [JDS]; do you accept that?
A. No, I don’t.
Q. Or disagree?
A. I disagree.”
DE was asked about the statement he made to police in 1995 at Orange Police Station. He was then 13 years of age but had no recollection of making the statement. It was put to DE that the content of the statement referring to his sister AS was a lie, which he denied. It was put to DE that this was a perfect opportunity for him to tell police that the accused had done things to him, but he responded, “I didn’t want to do this. I wanted to keep this dark.” DE denied that someone put something in his head when he went to the police station to make allegations against the accused.
It was put to DE that what he told police in 1995 was a lie and a complete fantasy. He disagreed.
DE was asked about a statement he made to police in May 2021, where he referred to the content of his statement in 1995. In the latter statement, he had said that there was more than one incident. It was put to DE that he was making his evidence up, with which he disagreed. His statement dated 25 May 2021 became Exhibit 2.
DE gave the following evidence:
“Q. I suggest to you that on more than one occasions, [JDS] did ask you and your brothers to massage his lower back, never his bumcheek.
A. That’s like he’s got not no foreskin, either, hey. He’s got foreskin. Same thing, Ms. He asked me to--
Q. This is not responsive. I’m asking your Honour to ask the witness to limit his answers.
A. Yes, he asked me to rub his cheeks and my brother - his cheeks, his everything other than his penis at that time.”
DE gave evidence that he told his uncle RE about the accused assaulting AS, but when asked why he didn’t tell his uncle about the accused doing anything to him, he gave the following answer:
“A. Because I didn’t want no one to know about me. I was scared. I was in - I was scared. Like, you want me to go and tell my Uncle [RE] that bashes me that I got raped by my fucking - sorry - by my ex - my mum’s ex-boyfriend? I’m not gonna go and tell anybody.
Q. Did you tell [CA]? Did you tell [CA]? Well, did [CA] bash you?
A. [CA] didn’t bash me. My uncle [RE] bashed me..(not transcribable)..bashed me. [CA] didn’t bash me.
Q. So you could have told [CA], because at the time in 1995 you were living with [CA]; correct?
A. Yes, but I didn’t tell [CA].”
DE was asked about the first incident about which he gave evidence and whether there was any conversation between him and the accused. He said:
“A. No. Just, “Don’t tell - don’t - don’t tell anyone.”
Q. So he did--
A. “It’s our little secret.”
Q. It’s our little secret?
A. Yeah.
Q. And why--
A. “Or mum will get hurt.”
Q. Why you didn’t say that to police when you gave your statement?
A. I didn’t think it was relevant at the time.
Q. And did [JDS] threaten you in any way?
A. Sorry?
Q. Did [JDS] threaten you? Did he say to you something along the lines, “If you tell it, you know, I’ll flog you” or--
A. I - I just told you that.
Q. You said he told you, “Don’t tell anyone. It’s a secret”?
A. Yes. I just told you, “Or I’ll bash” my mum or bash the kids. The same thing.
Q. What did he say? “I’ll bash the kids” or “I’ll bash your mum”?
A. Bash mum and the kids. “I’ll hurt them.”
Q. You’re just making this up, aren’t you?
A. Yeah. You’re making it up, too.”
In respect of the second incident, DE was asked whether the accused ejaculated and he gave evidence that he did. He gave further evidence that the accused did not say anything to him on that occasion.

Assessment of witnesses generally

My function as the tribunal of fact involves deciding what evidence I accept as proved and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of what evidence I accept as established by a particular witness’ account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in the witness’ recall of events or a witness’ inability to accurately describe what it is he or she saw or heard.
In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, equally, it is open to me to accept part of the evidence and reject other parts of that witness’ evidence. In making that assessment, I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

Assessment of witnesses in the Crown case

My assessment of the witnesses who gave evidence at trial must acknowledge that they are giving evidence about events that occurred more than 30 years ago, with the attendant impact on memory and powers of recollection that must necessarily flow from the effluxion of such a long period of time.
Each of the three complainants gave evidence in a straightforward fashion. Each had been exposed to domestic violence and alcohol abuse from a very early age and each had been subjected to violence directly at the hands of the accused at very young ages, when they were under his authority as their stepfather. That each at times became emotional in recounting their past lives was entirely understandable.
The context evidence is important evidence in this case, in that it provides a prism through which the background to the allegations brought by the complainants may be readily understood. It is not in dispute that the accused was an alcoholic and was physically violent towards the three complainants. I am careful not to substitute this context evidence as evidence of the specific allegations contained in the charges on the Indictment, however, it provides a realistic background against which the individual allegations brought by the complainants may be assessed. An example is the evidence concerning the assault by the accused with a skipping rope upon DSE, resulting in the accused’s conviction on a charge of assault occasioning actual bodily harm and being sentenced by way of a term of imprisonment to be served by periodic detention for six months. The photographs in Exhibit A4 amply demonstrate the extent of the violence inflicted by the accused on DSE when he was a young child. It is further corroborated by the report of Dr McDonald dated 7 December 1990 referred to above (Ex 1.11).
DE first disclosed his allegations of sexual abuse by the accused to a prison psychologist in August 2018. There is no evidence to support the contention put on behalf of the accused that DE did this so that his application for parole would be treated favourably. I find that he gave his evidence in a straightforward and somewhat laconic fashion and was not prone to embellishment. That he became emotional during cross-examination is not unusual in a case of this type, and did not in my view undermine his evidence or its probative value. Also, his evidence concerning his consumption of prohibited drugs and interactions with the criminal justice system are not unusual matters for the court to assess in a case of this type. Likewise, since the Royal Commission into Institutional Responses to Child Sexual Abuse, the courts have considerable experience in both the delay in complaints being made of child sexual abuse and the profound harm caused by such abuse, including drug and alcohol abuse.
DSE also gave his evidence in a straightforward and unembellished fashion. Whilst it is clear that at the time he made his first disclosure to Ms Perkins he must have had knowledge that DE had made a disclosure a few months prior, I accept that he did not have any knowledge of the detail of DE’s disclosure.
JE was a more labile witness than the other two complainants and his evidence clearly did not come up to proof, given the way in which the Crown opened the case against the accused involving JE. The fact that he was also reliant upon flashbacks rather than independent memories of events must be taken into account, together with the fact that he was, at the time of the alleged offending, very young, namely three years or younger. Whilst I accept that the time of making a statement to police he knew that both DE and DSE had made statements, as Detective Cole told him that, I find that he did not know the details of the allegations brought by them against the accused.
Whilst it is clear that the complainants’ mother, ME, became aware of the disclosure made by DE to the prison psychologist, and provided Ms Perkins with some information about that to assist her in counselling DSE, I find that ME was doing her best to assist the court and was both an honest and reliable witness. I am not satisfied that she was aware of the details of each of the three complainants, nor did she inform them of the content of the individual allegations the others made against the accused.

Assessment of witnesses in the accused’s case

The accused denied the allegations both in his ERISP and in his evidence. In his ERISP, he denied using a skipping rope to assault DSE and his explanation was that after 30 years he could not remember whether he used a belt or a skipping rope. He denied ever punching the complainants when they were children, but did discipline them with an open hand. He also gave evidence that he would bite the young children on the cheek, but it was done out of love (“a sweet bite”) and he did not ever bite JE to the point of drawing blood. He denied having any sexual interest in young boys. In cross-examination he admitted to often getting angry and to having a bad temper. In respect of hosing JE down when he was a baby, the accused gave evidence that ME would give the child to him in order to wash him and that was the only purpose of the hosing.
I am satisfied that the accused has experienced a significant forensic disadvantage in being confronted with allegations of criminal offending approximately 30 years after the events were said to have occurred. I have taken into account that disadvantage as outlined in the directions above, which include the following considerations:
(1)The delay has meant that the accused has lost the opportunity of making inquiries and exploring the alleged circumstances close to the time of the alleged offences, which may have uncovered additional evidence, throwing doubt on the allegations made against him;
(2)Had the trial taken place closer to 1991, the complainants might have had better recall of the incidents of sexual misconduct and the context in which they took place;
(3)The effluxion of 30 years has meant that the witnesses’ recall of the events have inevitably been impacted upon by other life events;
(4)There may have been records available including employment records and school records upon which to test the complainants’ evidence.
LS gave evidence that was honest and largely reliable. She confirmed that the accused was in employment at relevant times and also corroborated other evidence that the accused was a regular drinker of alcohol and had a volatile relationship with ME. I accept her evidence that the accused’s temper was bad when he was drinking and that the marriage ended when he met another woman.

Findings of fact

In addition to the agreed facts in Ex. A1 set out in [67] above, I make the following findings of fact:
(1)At all relevant times when the accused was married to ME, he had a problem with alcohol and drank alcohol on a daily basis.
(2)At all relevant times the accused was quick to anger and had a bad temper.
(3)The accused was often physically violent towards ME, and towards the complainants DE, DSE and JE.
(4)I accept each of the complainants’ evidence as to the physical violence meted out to them. In the case of DSE, that included being belted numerous times with a skipping rope so as to cause bruising to the legs and back as depicted in the photos in Ex A4, when DSE was six years of age. In the case of JE, it included being hosed off after dirtying his nappy, in the backyard when he was an infant aged two or three years. In the case of DE, it included corporal punishment and at times being struck when he stepped in to protect either ME or the other children.
(5)I find that each of the complainants were exposed during the relevant times to domestic violence directed by the accused to their mother ME.
(6)I find that although both the accused and ME worked in 1990 and 1991, it was probable that ME worked on a part-time basis, particularly when she became pregnant with AS.
(7)I find there was ample opportunity for the accused to be left alone with the children, either individually or together, during the period May 1989 to December 1991.
(8)As set out above, and consistent with the agreed facts, I find that ME became aware of the disclosure by DE to a prison psychologist in August 2018 of sexual abuse by the accused. I further find that ME was not aware of the detail of the abuse but forwarded the information known to her to Ms Perkins, the counsellor of DSE. At the time of the making of the statement dated 12 November 2018, DSE was aware DE had made allegations of a sexual nature about the accused, but not the details of those allegations.
(9)On all of the evidence, I am not satisfied that there was any collusion between the three complainants in the making of their separate allegations to the police about the conduct of the accused. There could be no finding of contamination of the evidence of each of the complainants. Rather, to the extent that the allegations may contain similarities, that is more likely to reflect on the modus operandi of the accused and his conduct towards the three stepsons, rather than any collusion between them.
(10)I am also not satisfied that each of the complainants were motivated to make allegations against the accused so as to ground claims for compensation. Each of the complainants denied this was the case and there was no evidence whatsoever upon which the claim could be made out.
(11)Nor am I satisfied that DE disclosed the allegations of sexual abuse to a prison psychologist in order to have his parole approved. There is no evidence on which that claim is based.

Determination

In determining whether the Crown has proved beyond reasonable doubt each of the elements of each of the seven counts on the Indictment, I note the following definitions:
(1)Act of indecency
An act of indecency is one which right-minded persons would consider to be contrary to community standards of decency.
Where the act has unequivocal sexual connotations, it is unnecessary for the Prosecution to prove the purpose of providing sexual gratification, the purpose of the indecent act, such as being artistic or political, is relevant for a consideration as to whether it was in fact indecent although not decisive of that question.
(2)Assault
Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. In this case, in respect of each allegation, the assault is constituted by touching.
(3)Incite
Is defined by the Macquarie Dictionary as:
“To urge on; stimulate or prompt to action.”
(4)Sexual intercourse
“Sexual Intercourse” means, in law:
(a)(a) Sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by:
(i)Any part of the body of another person …
The Crown does not have to prove that full penetration occurred or that the sexual intercourse was for the accused’s sexual gratification.
I have given careful consideration to the evidence of the accused, both in his ERISP interview (Ex A6) and at trial. I find that in his ERISP, the accused minimised his violence towards the three complainants. His evidence that he hit DSE and his denial that he ever used a skipping rope on one of the children was clearly false. Even with the effluxion of thirty years, the accused must have known that he had been convicted of a serious criminal offence, assault occasioning actual bodily harm, and sentenced to a term of imprisonment to be served by weekend detention, in respect of it.
The accused also minimised the violence he directed to the other children. He denied hitting them regularly and said when he did hit them it was “a smack on the bum”. He further minimised his consumption of alcohol and level of intoxication and denied hitting the children either when he was intoxicated or using implements such as “belts, cords and, on an occasion, a skipping rope.” He also minimised his punishment of the children in his evidence, confining it to times when they were fighting each other and he had to discipline them, or, when they did not do their homework. He further denied ever using a strap or belt to hit them.
I further find that the accused tailored some of his evidence to meet the Crown case, for example, his evidence that he would ask the children to massage his back by asking them to walk on his back. Another example was his evidence minimising the effect of biting the children on the cheek by describing it as a “sweet bite”. I further find that the accused minimised the occasions upon which he used a hose on JE to clean him when he had dirtied his nappy.
These matters cast considerable doubt over the honesty and reliability of the accused’s denials of each of the allegations in the Indictment. Having regard to the totality of the evidence, I do not accept the accused’s bare denials of each of the allegations in respect of each count on the Indictment. In accordance with the direction that I have given myself above, I therefore put the evidence of the accused to one side and, proceed to determine on the whole of the evidence whether the Crown has proved each of the elements of each count on the Indictment beyond reasonable doubt.
In respect of Count 1, I accept the evidence of DE as honest and reliable that on an occasion more than six months after the accused moved into the family home, DE was taken to the bedroom of the accused and when after giving the accused a massage, the accused pulled DE’s pants down and sucked on his penis. It was not in dispute that DE was between seven and eleven years of age, nor was it in dispute that as the accused was his step-father, DE was a person under the authority of the accused.
I am therefore comfortably satisfied beyond reasonable doubt that each of the four elements of Count 1 has been established beyond reasonable doubt by the Crown.
In respect of Count 2, I also accept the evidence of DE that a few months after the incident in Count 1, the accused came into DE’s bedroom, rolled him on his side and inserted his erect penis into DE’s anus. I am comfortably satisfied that each of the four elements of Count 2 on the Indictment have been proved by the Crown beyond reasonable doubt. There was no issue that DE was between seven and eleven years of age and that he was a person under the authority of the accused, who was his step-father.
Having found the offences in Count 1 and Count 2 established beyond reasonable doubt, I infer that the accused had a sexual interest in DE and was willing to act upon that interest. I am therefore able to take that tendency into account in considering whether the accused had that particular state of mind, namely, a sexual interest in DE, DSE and JE in determining whether the accused committed any of the acts on the Indictment. The fact that the accused had that tendency is not enough to prove any of the remaining charges of itself. It may, however, make it more likely that the accused conducted himself in the way the Crown alleges in respect of each of the subsequent charges on the Indictment. I will bear this in mind in determining whether each of the following counts on the Indictment have been proved beyond reasonable doubt by the Crown.
In respect of Count 3 on the Indictment, I accept the evidence of DSE as honest and reliable that on an occasion within the relevant period, the accused was lying on his bed when he told DSE to massage his naked buttocks and DSE did so for 10 to 15 minutes. I am satisfied that the accused incited DSE to commit an act of indecency. Again, there was no issue that DSE was under the authority of the accused who was his step-father. I am therefore satisfied the elements of the offence in Count 3 have all been established beyond reasonable doubt.
I am satisfied that on a subsequent occasion, the accused called DSE into his bedroom and told him they were going to play a game of doctors and nurses. On that occasion, the accused pointed towards his penis and asked DSE to pull his penis. DSE did that for about 10 or 15 minutes. I am comfortably satisfied that each of the elements of Count 4 have been established beyond reasonable doubt and what occurred was an act of indecency on DSE.
I accept the evidence of DSE that during the time-frame of the assault in Count 4, the accused inserted his finger in the anus of DSE. I am satisfied that each of the elements of Count 5 have been proved beyond reasonable doubt and that the placement of the accused’s finger in the anus of DSE constituted sexual intercourse.
I am fortified in finding the elements of each of the offences in Counts 3, 4 and 5 established by the evidence that the accused had a tendency to have a sexual interest in each of the complainants and was prepared to act on that tendency. I also accept the evidence of DSE that because the accused had perpetrated a number of acts of violence on him, he did what he was told by the accused out of fear of further physical violence directed towards him.
Whilst there were some differences in the accounts given by both DE and DSE to the police and in their evidence in court, for example, in the case of DSE whether the baby present in the room was AS or PS, those differences were not so significant so as to either impugn the complainants’ credit or cast doubt on the veracity of the substantive evidence they gave in respect of each count. Similarly, experience has demonstrated that complaints made by persons of historical child sexual assaults are often made many years after the event and that the complainants often express feelings of shame and embarrassment about what has happened to them. This does not mean that allegations are necessarily falsified or fantasised about. Rather, each complaint must be assessed on the totality of the evidence and in the context of the particular complainant’s life.
The context evidence is important here, in that the violence meted out to the complainants does explain why they did not complain earlier in time, and also why, at the time of the offences, they complied with the demands of the accused.
Having regard to the totality of the evidence in respect of Counts 1 to 5, I am not satisfied that there is any reasonable conclusion open on the whole of the facts that is inconsistent with the conclusion that each of the offences has been proved beyond reasonable doubt. Having considered and weighed all of the evidence, directions of law and submissions made on behalf of the parties, I find there is no inference consistent with the innocence of the accused reasonably open to be drawn on that evidence in respect of those counts. I therefore find that the Crown has proved its case against the accused beyond reasonable doubt in respect of Counts 1 to 5 on the Indictment and there will be verdicts of Guilty in respect of each of those counts.

The evidence the Crown relied on in respect of Counts 6 and 7 involved JE, who at the time of the alleged sexual assaults, was three years or younger. The evidence the Crown relied upon in respect of Count 7 on the Indictment was that JE recalled being on a mattress when the accused rubbed on the top of his thigh, the inner thigh, in towards his groin, “sort of thing”. When asked about detail of the incident, JE could not remember how long he rubbed near the groin, what clothes he had on if anything, where the mattress was, or the time of year. Notwithstanding the tendency evidence referred to above, and my findings in relation thereto, and the context evidence concerning violence perpetrated on JE from time to time as a very small child, the Crown has not proved each of the elements of Count 7 beyond reasonable doubt and the accused will be found not guilty on that count.
JE was unable to give evidence of any other incident without first refreshing his memory from his statement dated 10 March 2020. Having done so, JE gave evidence that on an occasion when he was on a bed, he remembered the accused rubbing his thigh. He indicated the top of his right leg, near the groin, and gave evidence that the accused got one of JE’s hands to start playing with his penis. JE then played with his penis on top of the clothing and underneath, and at times, it was skin on skin. However, on this occasion, he could not recall whether it was on skin.
The Crown opened its case on the basis that Count 6 was an occasion when JE was sitting on his bed when the accused came into his room. The accused then sat next to JE and used one of his hands to rub JE’s penis.
At no time thereafter did JE tell his mother about the alleged sexual assaults. He told his ex-wife in around 2016 and gave evidence that he was reluctant to discuss it with his present partner. He agreed in cross-examination that he had been traumatised as a child by virtue of the physical violence that he had both witnessed and been a victim of. JE gave evidence that he had a difficult childhood.
JE further gave evidence that he had suffered a severe head injury when he was 21 years old and that he had no memory of certain sexual acts, but that he had flashbacks. He also gave evidence that he started using prohibited drugs at a very young age and had overdosed on speed at the age of 11. When he was 19, he started using ice, which he used for over 15 years. JE gave further evidence that his grandmother had told him, when she was alive, that he had been sexually abused as a child, and physically and emotionally abused. She did not, however, say who he was abused by. Having regard to all of those matters, together with the Markuleski direction I have given myself in respect of the unreliability of JE’s evidence in respect of Count 7, I find that the Crown has not established each of the elements of Count 6 beyond reasonable doubt and there will be a verdict of not guilty in respect of Counts 6 and 7 on the Indictment.
I do not accept the submission made on behalf of the accused that having found the evidence of JE unreliable, in accordance with the Markuleski direction set out above, I would have to consider how that conclusion affected my consideration of Counts 1 to 5, as those counts concerned different complainants, namely, DE and DSE – see Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290.

Orders

I hereby order as follows:
(1)In respect of the offence in Count 1, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS, there will be a verdict of Guilty.
(2)In respect of Count 2, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS, there will be a verdict of Guilty.
(3)In respect of Count 3, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS, there will be a verdict of Guilty.
(4)In respect of Count 4, that JDS, Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between 5 and 7 years of age, being a person under the authority of JDS, there will be a verdict of Guilty.
(5)In respect of Count 5, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DSE, a child then under the age of 10 years, namely between 5 and 7 years of age, there will be a verdict of Guilty.
(6)In respect of Count 6, that JDS, between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS, there will be a verdict of Not Guilty.
(7)In respect of Count 7, that JDS, between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS, there will be a verdict of Not Guilty.
**********

Amendments

29 October 2021 - Removed potential identifiers of complainants

[2021] NSWDC 579

27 October 2021