R v Maguire (No. 1) - [2022] NSWDC 92

District Court

New South Wales

Medium Neutral Citation: R v Maguire (No. 1) [2022] NSWDC 92
Hearing dates: 09–12, 15–19, 22–24, 26, 29, 30 November 2021, 01–03, 06–10, 13, 17 December 2021
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
The accused is found guilty of each count on the indictment

Catchwords:
CRIME — Child sex offences — Child abuse material — Production
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Sexual offences — Act of indecency
CRIMINAL PROCEDURE — Trial — Judge alone
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:
CrimesAct1900
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No. 33
Criminal Procedure Act 1986
Evidence Act 1995
Evidence (Tendency and Coincidence) Act 2020 No 8

Cases Cited:
Ewen v R [2015] NSWCCA 117
Fleming v R (1998) 117 CLR 250
GG v R [2010] 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230; BC201007553
Liberato v The Queen 1985 159 CLR 507
R v Asst Record of Kingston 1969 2QB 58
R v Chonka [2000] NSWCCA 466
R v Eade [2002] NSWCCA 257
R v Markuleski (2001) 52 NSWLR 82
R v Massie [1999] VR 542
R vMurray (1987) 11 NSWLR 12
Young v Cassels (1914) 33 NZLR 852
Yuen v R [2015] NSWCCA 117
Zoneff v The Queen (2000) 200 CLR 234

Texts Cited:
Hansard Legislative Assembly 25 February 2020

Category: Principal judgment
Parties: Regina (Crown)
Raymond John Maguire (Accused)
Representation:
Rosheehan O’Meagher (Crown Prosecutor)
Emanuell Conditsis (Solicitor Advocate for the Accused at trial)
Michal Mantaj (Solicitor Advocate for the Accused for judgement)
Director of Public Prosecutions (NSW) (Crown)
Conditsis Lawyers (Accused)

File Number(s): 2018/00080289 & 2018/00264850
Publication restriction: Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained

REVISED JUDGEMENT

This is the judgement following the Judge Alone Trial of Raymond John Maguire.

INTRODUCTION

On Tuesday 9 November 2021, Raymond John Maguire represented by Mr Conditsis appeared for trial in the District Court, Sydney upon an indictment alleging 15 offences in respect of three complainants. I shall refer to the complainants by their initials to protect them from identification.

AMENDMENTS TO COUNTS 1, 8, 10 AND 11

Upon arraignment before me, the accused pleaded not guilty to each count and thereafter the matter proceeded with arguments upon pre-trial issues. In due course, the trial proceeded as a judge alone trial during which certain counts were amended by an adjustment of the range of dates in which it was alleged the misconduct occurred, though the allegation of misconduct upon which the charges were formed remained constant.
The amendments sought and made were not opposed by the accused.
The first amendments were sought on 23 November 2021 for counts 1 and 8, at trial transcript p 291 and following. Without objection, I gave leave to amend the indictment to reflect the time in which the complainant alleged the misconduct occurred. Count 8 also required amendment to vary the complainant’s ages within the timeframe described. I provided my ex tempore judgement on that day.
The second amendments were sought on 13 November 2021 for counts 10 and 11, at trial transcript pp 613 and following. The age of the complainant in counts 10 and 11 was also amended. I provided my ex tempore judgement that day.
The accused was re-arraigned upon the amended counts and continued his pleas of not guilty.

THE OFFENCES

The offences upon which he was tried with the amendments made by consent were, that the accused:

Count One

Between 1 September 2009 and 30 June 2012, at Wyee in the State of New South Wales, did produce child pornography.

S 91H(2) Crimes Act 1900

Count Two

Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, did being an adult, engage in conduct that exposed RH, a child under the age of 14 years, namely, 10, 11 or 12 years of age, to indecent material, with the intention of making it easier to procure RH for unlawful sexual activity with Raymond Maguire.

S 66EB(3) Crimes Act 1900

Count Three

Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, did have sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11 or 12 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire.

S 66C(2) Crimes Act 1900

Count Four

Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11 or 12 years, in circumstances of aggravation, namely, at the time of the offence, RH was under the authority of Raymond Maguire.

S 66C(2) Crimes Act 1900

Count Five

Between 1 January 2010 and 30 June 2012 at Wyee in the State of New South Wales, did have sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11, 12 or 13 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire.

S 66C(2) Crimes Act 1900

Count Six

Between 1 January 2010 and 6 June 2013, at Wyee in the State of New South Wales, did incite RH, a child then under the age of 16 years, namely, 10, 11, 12, 13 or 14 years, to commit an act of indecency towards Raymond Maguire, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire.

S 61O(1) Crimes Act 1900

Count Seven

Between 1 January 2010 and 6 June 2013, at Wyee in the State of New South Wales, did incite RH, a child then under the age of 16 years, namely, 10, 11, 12, 13 or 14 years, to commit an act of indecency towards Raymond Maguire in circumstances of aggravation, namely, at the time of the offence, RH was under the authority of Raymond Maguire.

S 61O(1) Crimes Act 1900

Count Eight

Between 1 January 2011 and 6 June 2013, at Wyee in the State of New South Wales, had sexual intercourse with RH, a child above the age of 10 years and under the age of 16 years, namely, 11, 12, 13 or 14 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire.

S 66C(4) Crimes Act 1900

Count Nine

Between 1 January 2011 and 31 December 2011, at Wyee in the State of New South Wales, did produce child abuse material.

S 91H(2) Crimes Act 1900

Count Ten

Between 1 June 2012 and 30 June 2013, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 10 or 11 years, in circumstances of aggravation, namely, that at the time of the offence AH was under the authority of Raymond Maguire.

S 66C(2) Crimes Act 1900

Count 11

S 66C(2) Crimes Act 1900

Count 12

Between 5 June 2014 and 30 June 2015, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 12 or 13 years, in circumstances of aggravation, namely, that at the time of the offence AH was under the authority of Raymond Maguire.

S 66C(2) Crimes Act 1900

Count 13

S 66C(2) Crimes Act 1900

Count 14

Between 2 November 2015 and 18 August 2017, at Wyee in the State of New South Wales, did being an adult, engage in conduct that exposed SC-A, a child under the age of 14, namely 8 or 9 years, to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with the said Raymond Maguire.

S 66EB(3) Crimes Act 1900

Count 15

Between 2 November 2015 and 18 August 2017, at Wyee in the State of New South Wales, did commit an act of indecency towards SC-A, a person then under the age of 10 years, namely 8 or 9 years.

S 61O(2) Crimes Act 1900

TRIAL BY JUDGE ALONE

The proceedings continued from 9 November 2021 for the determination of pre-trial issues. On 10 November 2021 Mr Conditsis announced that he sought orders that the trial proceed before a judge alone and presented a notice of motion and affidavit in support. The Crown needed time to finalise the Crown’s position in response to the application. On 11 November 2021 the Crown announced that it consented to the application for the trial to proceed before a judge alone. The parties did not wish to be heard against my continuing with the matter.
Section 132A(1) Criminal Procedure Act 1986 proscribes an application for a judge alone trial if made within 28 days of the commencement of the trial except with the leave of the Court. To clarify, the period is 28 days before the commencement of the trial.
Section 132 of the Act provides that the Court must order the trial to proceed as a trial by judge alone when the parties are joined in the application, upon the Court being satisfied that the accused has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. I was and remain satisfied that the accused had advice from Mr Conditsis upon those matters.
I was also satisfied that it was appropriate to continue with the pre‑trial issues and thereafter to hear the evidence and determine the trial as the judge alone notwithstanding the time when the application was presented. There was no good reason identified for any further delay in the proceedings. To adjourn the matter to resume before another judge 28 days hence would clearly be wasteful of resources, of the parties and the Court and there could not be any suggestion that the accused had embarked upon the application in the hope of having a judge of his choice hear the matter. Accordingly pursuant to s 132A Criminal Procedure Act1986 I ordered that the accused have leave to file out of time his application for the trial to proceed before a judge alone and that upon the concession by the Crown that the matter should proceed in that fashion and the position taken by the parties that the trial continue in my Court forthwith, pursuant to s 132 of the Act I ordered that the accused be tried before me as a judge alone.
In the circumstances of the current pandemic the Criminal Procedure Act1986 provides, in s 365, that a Court may, on its own motion order that an accused person be tried by judge alone but only if:

the accused person is content to be tried by a judge alone, and

if the Prosecutor does not agree to the accused person being tried by a judge alone the Court considers it is in the interest of justice for the accused person to be tried by a judge alone, and

the Court is satisfied that the accused has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a judge alone.

This section applies despite any other provisions of this Act including s 132 and s 132A. Considering the application brought, it was not necessary to resort to that provision. The wisdom of this course in the trial was patent. It provided the opportunity for the more expeditious resolution of the charges the accused faced against the risk that after the determination of a significantly large number of pre-trial issues requiring the Court to consider a substantial quantity of material a trial before a jury would not be completed in the weeks available before the conclusion of the law term shortly before Christmas and New Year.

GENERAL DIRECTIONS

To comply with s 133(2) and s 133(3) Criminal Procedure Act1986 and as required by the decision of the High Court in Fleming v R (1998) 117 CLR 250 I remind myself of the following principles of law.
As the accused pleaded not guilty and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return my verdicts according to the evidence. It is for me to assess the witnesses and decide whether they are reliable. I note that reliability depends upon two quite different but sometimes overlapping considerations.
One is the witness’s honesty and the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say but also the impression that the witness made upon me. I accept that the complainants were not before the Court knowingly giving untrue evidence, but I must be satisfied of the accuracy of their evidence implicating the accused in the commission of these offences.
If there are questions about the accuracy of their assertions sufficient to leave me with a reasonable doubt, in consequence thereof I must return verdicts of not guilty to these charges. I have the benefit of submissions from the Crown and the accused’s counsel. I will consider them and give such weight as I think they deserve. I note that they are not evidence in either case.
As the Tribunal of Fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge the importance of matters I must decide, not only for the accused but also for the whole community. I must act impartially, dispassionately, and fearlessly. I must not let sympathy or emotions sway my judgement. I must not act capriciously or irrationally.
This direction is important. The complainants were children placed in foster care after removal from their birth families because of the challenges they faced there. The birthdates of the complainants are uncontroversial. Sympathy that one might feel for children such as these in their circumstances should not be permitted to infect the proper judicial determination of these charges according to the evidence relevant to them.

THE JOINT PROCEEDINGS

The accused is being tried jointly upon 15 counts brought upon alleged misconduct against three complainants. This course was taken as a matter of convenience. There are multiple episodes of alleged misconduct for which the accused faces contemporaneous trials.
Generally, there is nothing in law or as a matter of common sense that requires the same verdict in respect of all counts presented in an indictment, if at the end of the day the evidence proves guilt in respect of one or more counts but not in respect of others. One must not in such a case take a global approach to all the instances of alleged misconduct.
If the accused is found guilty or not guilty of one offence the Court must not say that the accused is therefore guilty or not guilty of another or other offences on the indictment. Accordingly, I must consider each charge with regard to the evidence relevant to it and will be required to return a separate verdict in respect of each.
However, because of the way in which the case was presented and contested in this trial a verdict of not guilty in respect of any of counts 1 through 8 must not be overlooked when considering each of the other counts concerning RH. Similarly, a verdict of not guilty in respect of any of counts 9 through 13 must not be overlooked when considering each of the other counts concerning AH; and a verdict of not guilty in respect of either counts 14 or 15 must not be overlooked when considering the other count concerning SC-A. If my verdict is not guilty in respect of misconduct alleged of the accused by a complainant because of my doubts about the truth or accuracy of the evidence of that complainant I must consider the impact of that upon my consideration of the other events alleged by that complainant.
In each case the issue joined is whether the Crown has established that the accused engaged upon the misconduct alleged. The accused denies that he did so. It is not suggested that the conduct alleged of the accused if accepted does not amount to the offences charged. It remains however, that I must also be satisfied that the evidence, if accepted, establishes the elements of the offences.

THE BURDEN OF PROOF

This is a criminal trial. The Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges. The accused denies that the offences occurred; the Crown must prove that they did. It is not for the accused to disprove these charges but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond a reasonable doubt. The words beyond reasonable doubt are ordinary everyday words and that is how I understand them.
If at the end of my deliberations I am not satisfied that the Crown has established beyond reasonable doubt that the accused engaged upon the conduct alleged of him, or of the elements or essential facts which combine to create an offence alleged, having taken into consideration the evidence both for the Crown and for the accused and after also taking into consideration the submissions made to me by the Crown and the accused's representative, then it is my duty to bring in verdicts of not guilty because the Crown would have failed to do what the law requires it to do.
It is vitally important that I clearly understand that the accused must be found not guilty if the alleged misconduct has not proven to have been committed by him, or if some misconduct is proven, any of the essential ingredients of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to the occurrence of the misconduct or any essential ingredients, even though I might suspect that the accused so engaged, the accused is entitled to the benefit of that doubt, and I must find him not guilty.
I remind myself that the Crown does not have to prove every single fact arising from the evidence in the case beyond reasonable doubt and I am not required to resolve every conflict arising from the evidence. The onus which rests upon the Crown is to prove the ingredients of the offences and that they were committed by the accused.

INFERENCES

I remind myself that I may in my role as judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified, or unjustified, correct, or incorrect, I may draw an inference adverse to the accused from proven facts only if such an inference is the reasonable inference that can properly be drawn from the proven facts.
This is a criminal trial and as I have already noted I must be satisfied of each of the essential ingredients beyond reasonable doubt and that the accused committed the offences before he may be found guilty. Amongst other things this means that I should be extremely careful about drawing any inference; I should examine any possible inference to ensure that it is a justifiable inference in the circumstances. I should not draw any inference from the direct evidence as to the existence of an essential ingredient or as to the guilt of the accused unless it is the only rational inference in the circumstances.

THE ACCUSED DID NOT GIVE EVIDENCE

The accused did not give any evidence in response to the Crown's case although documents were tendered and became exhibits and he relied upon evidence from his wife and a friend to prove he is of good character.

As I have already pointed out the Crown bears the onus of satisfying the Court beyond a reasonable doubt that the accused is guilty of the offences charged, the accused bears no onus of proof in respect of any fact that is in dispute.
Although the accused was entitled to give or call evidence there was no obligation to do so. He is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty; therefore, it follows that the accused was entitled to say nothing and make the Crown prove his guilt to the high standard required.
The accused's decision not to give evidence cannot be used against him in any way; that decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that might exist in the evidence tendered by the Crown. It cannot be used in any way of strengthening the Crown case or in assisting the Crown to prove its case beyond a reasonable doubt.
I must not speculate about what might have been said in evidence if the accused had given evidence or another person speaking to the relevant matter had been called by the accused as a witness in the trial.

THE ACCUSED’S INTERVIEW

The accused participated in an interview with the police.
I remind myself that all of us in the community have the right to refuse to answer questions put to us by the police, but in this instance the accused participated in the interview; he did so alone, and he responded to extensive questions put to him by the investigating police.
The accused's exculpatory assertions are thus before the Court in evidence upon the Crown's tender of the video recording. This was not sworn evidence or testimony, was not against the accused's interests, and was not tested by cross-examination, although the interview was of some length and the interviewers went into detail when asking about background and when putting specific allegations.
The weight to be attributed to the accused's responses is to be determined in the light of the whole of the evidence. Bringing these matters to bear, the denials given by the accused in the interview and the information he provided in response to the questions probing the circumstances traversed must be given consideration, and if the responses leave a reasonable doubt in respect of the allegations made against him dealt with in the interview or any one of them he is entitled to the benefit of the doubt and consequently a verdict of not guilty must be returned to the count in respect of which the doubt is established.
However, if I have not been persuaded that the responses leave a reasonable doubt it does not follow that the accused must be found guilty. It is not the case that I must accept his assertions before he is entitled to be acquitted; nor is it the case that the responses must leave a doubt in my mind as to their veracity before the accused is entitled to acquittal. If I reject entirely his responses it remains that the Crown cannot succeed in this prosecution unless I am satisfied by the evidence in the Crown case that the accused is guilty. If I do not accept what the accused said to the police, I simply put that to one side and decide whether the evidence in the Crown case proves the accused’s guilt; if it does not then he must be found not guilty.

THE ESSENTIAL ELEMENTS

The accused is charged with 15 counts, although as I note below the accused does not suggest that the alleged conduct, if accepted, does not satisfy the elements of the offences charged in each instance. He vigorously denies that he engaged upon any of the misconduct alleged by each of the complainants.

COUNT 1

Count 1 is an offence of producing child pornography, contrary to s 91H(2) Crimes Act 1900 as it stood between 1 January 2009 and 16 September 2010, after which s 91H was amended to provide for offences in respect of child abuse material. This offence is alleged to have occurred between 1 September 2009 and 30 June 2012 when the complainant was in primary school, during which period there was a change in the law.
The Crown reminds me of s 80AF Crimes Act 1900 which provides:

This section applies if--

it is uncertain as to when during a period conduct is alleged to have occurred, and

the victim of the alleged conduct was for the whole of that period a child, and

there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and

because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period.

In such a case, a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred.

(2A) In prosecuting an offence referred to in subsection (2)--

any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and
any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period.

In this section--

‘Child’ means a person who is under the age of 16 years.

‘Sexual offence’ means the following offences regardless of when the offence occurred--

an offence under a provision of this Division or Division 10A, 10B, 15 or 15A,

an offence under a provision of this Act set out in Column 1 of Schedule 1A,

an offence (whether under section 344A or otherwise) of attempting to commit any offence referred to in paragraph (a) or (b),

an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c).

This is an offence within Division 15A, the complainant was a child within the meaning given to that term here provided, and the maximum penalty for the misconduct caught by s 91H within the entire period specified in count 1 is imprisonment for ten years. There was therefore no impediment to the Crown prosecuting this offence upon the allegation that the accused produced child pornography.
Section 91H(1) Crimes Act 1900 provided:

Child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:

engaged in sexual activity, or
in a sexual context, or
as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Produce child pornography includes:

film, photograph, print or otherwise make child pornography, or

alter or manipulate any image for the purpose of making child pornography, or

enter into any agreement or arrangement to do so.

Count 1 is in respect of RH. The Crown case is that on the occasion she alleges this to have occurred:

the accused asked her to get undressed and bend over,

she pulled down pants and underwear and the accused took photographs of her naked vagina,

this occurred in the games room, which was converted into a bedroom,

when the complainant was in primary school, she thinks Year 5.

The Crown must prove in respect of this allegation that the accused photographed the complainant's vagina in the circumstances she described. It is not suggested on behalf of the accused that such conduct does not satisfy the meaning of the term “Produce”. The subject of the photograph was alleged to be the exposed vagina of the complainant, a child at the time. Such a photograph of a child taken in the circumstances would cause offence to reasonable persons, taken as it is alleged to have in a sexual context. I find that such a photograph is within the meaning of the term “Child pornography”.

COUNTS 2 AND 14

Count 2 and count 14 are offences alleging the accused engaged in conduct as an adult that exposed a child under 14 years of age to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with him, contrary to s 66EB(3) Crimes Act 1900. Count 2 is in respect of RH and count 14 is in respect of SC-A.
Section 66EB Crimes Act 1900 provides relevantly:

Definitions

In this section:

Adult person means a person who is of or over the age of 18 years.

Child means a person who is under the age of 16 years.

Conduct includes:

communicating in person or by telephone, the internet or other means, or
providing any computer image, video or publication.

Unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or...

Procuring children...

(2A) Meeting child following grooming...

Grooming children

An adult person:

who engages in any conduct that exposes a child to indecent material..., and
who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence.

The provision then specifics the maximum penalties.

In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity.
Fictitious children...
The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence.
It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child.
Alternative verdict...
1. The allegation by RH is that in the shed at the rear of the accused's home he showed her pornography and touched her vagina. At the time the accused was an adult and the complainant a child under the age of 14 years. The conduct alleged was the showing of a video and image of pornographic material. The Crown case is that the only inference to be taken from the conduct including that the accused touched the complainant's vagina beneath her clothes, is that he did so with the intention of making it easier to procure the complainant for unlawful sexual activity with him.
2. It is not suggested on behalf of the accused that the conduct alleged would not be within the terms of the provision creating this offence.
3. The allegation in respect much SC-A is that in the lounge room of his home the accused showed her pornographic material on an iPad immediately before he exposed his penis. At the time the accused was an adult and the complainant was a child under the age of 14 years. The Crown case is that the only inference to be taken from the conduct including that the accused exposed his penis is that he did so with the intention of making it easier to procure the complainant for unlawful sexual activity with him.

COUNTS 3, 4, 5, 10, 11, 12 AND 13

In these counts the accused is alleged to have had sexual intercourse with the complainants RH and AH when they were over the age of ten years but under the age of 14 years, in the circumstance of aggravation that they were under the accused's authority, contrary to s 66C(2) Crimes Act 1900, the circumstance of aggravation specified in s 66C(5)(d).
This summary provided is sufficient to identify the elements of these offences. There is no issue that the children were in the age range at the times specified in the charges or correspondingly that they were children.
Counts 3, 4 and 5 are in respect of offences alleged by RH. Count 3 is in respect of an alleged act of digital penetration on the complainant's vagina whilst the accused showed a pornographic video. Count 4 is in respect of an allegation of penile-vaginal penetration. Count 5 is in respect of an alleged act of penile-vaginal penetration.
Section 161HA Crimes Act 1900 provides:
For the purposes of this decision sexual intercourse means,

sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

any part of the body of another person, or

any object manipulated by another person,

Except where the penetration is carried out for proper medical purposes, or

sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
cunnilingus, or
the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

Thus, for the purposes of these offences sexual intercourse includes digital penetration; penetration of the genitalia to the slightest degree is sufficient. It is not necessary to prove ejaculation. If the complainant is accepted in her description of these events the elements of these offences are established.
Counts 10, 11, 12 and 13 are respect of offences alleged by AH. Count 10 is in respect of an allegation that the complainant when doing homework was directed to lie on a bed and the accused pulled down her pants and digitally penetrated her genitalia.
Count 11 is in respect of an allegation that the accused cornered AH in the dining room against a bookshelf, put his hands into her shorts and underwear and digitally penetrated her genitalia.
Count 12 is in respect of an allegation that the accused digitally penetrated AH's genitalia in her bedroom.
Count 13 is in respect of an allegation that after he digitally penetrated AH's genitalia, he said he wanted to try something new and penetrated her genitalia with his penis.
With reference to s 61H Crimes Act 1900 quoted above, if the complainant is accepted in the evidence asserting these facts, the sexual intercourse by way of digital penetration and penile penetration alleged by AH is proven.

COUNTS 6, 7 AND 15

Counts 6 and 7 are in respect of the complainant, RH, and count 15 is in respect of the complainant SC-A. The accused is alleged in counts 6 and 7 to have incited the child, then under the age of 16 years, to commit an act of indecency towards him in circumstances of aggravation, that at the time of the offence the child was under his authority, contrary to s 61S(1) Crimes Act 1900, and in contravention of s 61S(2) in count 15 of having committed an act of indecency towards SC-A, a person then under the age of ten years, namely eight or nine years.
Before it was repealed and during the periods charged s 61O Crimes Act 1900 provided:

Any person who commits an act of indecency with or towards a person under the age of 16 years or incites a person under that age to an act of indecency with or towards them or another person in either case in circumstances of aggravation is liable to imprisonment for five years.

(1A) ...

Any person who commits an act of indecency with or towards a person under the age of ten years or incites a person under that age to an act of indecency with or towards them or another person is liable to imprisonment for seven years

(2A) ...

For the purposes of subs (1) and (1A) circumstances of aggravation mean circumstances in which

..., or

the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender or

..., or

…

The term incitement is not defined in the Crimes Act but there is an authority from the Court of Criminal Appeal which provides guidance. In R v Eade [2002] NSWCCA 257 Smart AJ wrote:

“In Young v Cassels (1914) 33 NZLR 852 Stout CJ...said: ‘The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.’
“In R v Massie [1999] VR 542 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of ‘incite’ common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’ or ‘authorise’.”
It was pointed out in R v Asst Record of Kingston 1969 2QB 58 of 62 that with the offence of incitement it is merely the incitement which constitutes the offence and it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all: Young v Cassels...”

The Crown must also prove that the accused incited the complainant to commit an act of indecency towards him. The word indecent means contrary to the ordinary standards of respectable people in the community. It is for the Court to determine the standards prevailing in that community when deciding whether the Crown has proven beyond reasonable doubt that the act alleged was indecent. To be indecent it must have a sexual connotation, for example if the act proposed was such as to clearly give rise to a sexual connotation, that is, sufficient to establish that the conduct was indecent, for example touching the genitalia or anus.
There was no issue raised as to the age of these complainants at the material times or as to the circumstances of aggravation that they were under the accused’s authority when the conduct alleged occurred, nor as to the circumstances of aggravation that RH was under the accused’s authority if it be found that the conduct alleged occurred.
The conduct alleged in respect of count 6 is that when the accused and RH were alone in a car, he asked her to insert lollies into her vagina which she did, after which he ate them and commented that they tasted good.
The conduct alleged in respect of count 7 is that the accused entered the bathroom when RH was in the bath and asked her to put a shampoo bottle in her vagina.
The conduct alleged in respect of count 15 is that the accused exposed his penis to SC-A and touched it in her presence.
The evidence describing the conduct alleged in respect of counts 6 and 7 if accepted as true and correct beyond reasonable doubt, the offences charged are proven and so too in respect of count 15 in which it is not alleged that the complainant was under the accused’s authority.

COUNT 8

Count 8 alleges that between 1 January 2011 and 6 June 2013 the accused had sexual intercourse with RH who was above the age of ten years and under the age of 16 years, namely 11, 12 or 14 years, when she was under his authority. The Crown charged this offence as contrary to s 66C(4) Crimes Act 1900. This count is expressed in its amended form as I discussed earlier. Section 66C(4) Crimes Act 1900 provides:

“Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.”

However, after amendment of count 8 the age of a complainant is alleged to have been either 11, 12, 13 or 14 which attracts consideration of s 66C(2) of the Act with a maximum penalty of 20 years. There was no amendment of these provisions within the time frame adopted in the amended count 8.
Once more the Crown reminds the Court of the terms of s 80AF Crimes Act 1900 quoted earlier in this judgement. There is no challenge to the operation of this provision in respect of count 8. There is a measure of uncertainty about precisely when the offence is said to have occurred. The complainant was a child within the definition of that term throughout the whole of the period. The provision specified that the offence charged provides for the lesser penalty. If accepted that the offence occurred upon the evidence the prosecution can establish that the offence was contrary to s 66C(4) Crimes Act 1900 in force during that period; the evidence is the complainant was between 14 and 16 years of age during that period and the offence is found within Division 10 of Part 3 of the Act.
The conduct alleged of the accused for count 8 is that he had penile/vaginal sexual intercourse with the complainant on a coffee table in the upstairs of his home. If the complainant is accepted as truthful and accurate in the evidence given about this conduct the elements of this office are established.

COUNT 9

Count 9 alleges that between 1 January 2011 and 31 December 2011 the accused produced child abuse material contrary to s 91H(2) Crimes Act 1900.
Following amendment, the offence created by this provision was in respect of child abuse material whereas within the period specified in count 1 before the amendment took effect the offence created was in respect of child pornography. Relevant to count 9 the section provides:

In this section –

“produce” child abuse material includes -

film, photograph, print or otherwise make child abuse material, or
alter or manipulate any image for the purpose of making child abuse material, or
enter into any agreement or arrangement to do so.

A person who produces disseminates or possesses child abuse material is guilty of an offence.

Proceedings from an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.

Section 91FB provides:

In this division child abuse material means material that depicts or describes in a way that reasonable persons would regard as being in all the circumstances offensive

…, or

A person who is, or appears to be or is implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

…, or

The private parts of a child who is, appears to be, or is implied to be a child.

The matters to be taken into account in deciding whether reasonable persons regard particular material as being, in all the circumstances offensive include:

the standards of morality, decency and propriety generally accepted by reasonable adults, and

the literary, artistic or educational merit (if any) of the material, and

the journalistic merit (if any) of the material being the merit of the material as a record or report of a matter of public interest, and

the general character of material (including whether it is of a medical, legal or scientific character).

Material that depicts a person or the private parts of the person includes material that a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subs (1)).

The private parts of the person are:

That person’s genital area…, whether bare or covered by underwear, or

…

The allegation of AH leading to count 9 is that when she was laying on her bed doing her homework the accused came to her, removed her shorts and underwear, and photographed her vagina. If the evidence asserting these facts is accepted as truthful and accurate beyond reasonable doubt the elements of this offence are proven.
If the evidence is accepted the photograph would have depicted material that I accept reasonable persons would regard as being in all the circumstances offensive. The complainant was a child who, as described, was engaged in a sexual pose. The image if captured would depict the private parts of the complainant, a child. I have brought to bear my perception of the standards of morality, decency, and propriety I find would generally be accepted by adults. No question of literary, artistic, educational merit or journalistic merit or medical or legal or scientific character arises

THE TRIAL

The trial came before me on 9 November 2021 for mention with estimates given that it would continue for four weeks including pre-trial issues which were to be agitated before the selection of a jury. As noted earlier, in the initial stages of the proceedings the parties elected the alternative of the trial before a judge alone. The parties indicated many pre-trial issues and presented an array of folders relevant, it was said, to the rulings to be sought.
Notices of motion were filed after the accused was arraigned and pleaded not guilty to the 15 counts as formulated prior to the amendments discussed earlier in this judgement. The folders of material provided were marked as exhibits on the voir dire. I made orders allowing access to subpoenaed material and adjourned the matter to the following day for argument.
On 10 November 2021 the prospect of a judge alone trial was indicated. There were discussions regarding outstanding material sought by subpoenae and consideration was then given to the arguments advanced on the admission of challenged material. This process continued until 17 November 2021 when the Crown and defence provided opening addresses.
The trial proceeded as a judge alone trial. The evidence concluded on 10 December 2021. Addresses followed on 13 December 2021 and 17 December 2021, the final day of the law term in that year and the proceedings were thereafter adjourned for judgement in 2022.

THE CROWN CASE

The Crown cases began with the evidence given by the complainants. The Crown case in respect of each count depends upon the evidence of the complainant with the support provided by evidence of tendency, context, complaint, and coincidence. Ultimately whether the accused is guilty of an offence depends upon the Court accepting as truthful and accurate the evidence of the complainant in each case.
The admissibility of evidence for tendency purposes and coincidence was argued before Wilson SC DCJ who delivered judgement on 8 April 2021. The decision was made upon an indictment alleging 15 counts in respect of the three complainants. The cover page of the copy of the judgement provided on the Court file erroneously refers to there being 14 counts.
The indictment before his Honour is read subject to the amendments dealt with earlier in this judgement. Moreover count 5 in the indictment before his Honour appears at count 6 in the indictment in this trial.
This was achieved with the variation whereby former count 5 became count 6 and former count 6 became count 5. I include below a table prepared by the Crown providing columns whereby comparisons can be made between the structure adopted in the indictments.

Trial Indictment (version #37.2)

Indictment considered by Judge Wilson (version #9.2)

Complainant RH

Count 1

S91H(2)
Produce child pornography

Count 1

S91H(2)
Produce child pornography

Count 2

S 66EB(3)

Groom child under 14

Count 2

S 66EB(3)

Groom child under 14

Count 3

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 3

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 4

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 4

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 5

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 5 (trial Count 6)

S 61O(1)

Aggravated incite act of indecency child under 16

Count 6 (pre-trial Count 5)

S 61O(1)

Aggravated incite act of indecency child under 16

Count 6

S 66C(2)

Aggravated sexual intercourse child 10-14

Count 7

S 61O(1)

Aggravated incite act of indecency child under 16

Count 7

S 61O(1)

Aggravated incite act of indecency child under 16

Count 8

S 66C(4)

Aggravated sexual intercourse child 14-16

Count 8

S 66C(4)

Aggravated sexual intercourse child 14-16

Complainant AH

Count 9

S 91H(2)
Produce child abuse material

Count 9

S 91H(2)
child abuse material

Count 10

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 10

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 11

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 11

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 12

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 12

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 13

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Count 13

S 66C(2)

Sexual intercourse child 10-14 (under authority)

Complainant SC-A

Count 14

S 66EB(3)

Groom child under 14

Count 14

S 66EB(3)

Groom child under 14

Count 15

S 61O(2)

Commit act of indecency child under 10

Count 15

S 61O(2)

Commit act of indecency child under 10

At the outset I was informed that the judgement delivered by his Honour was not one of the pre-trial issues to be resolved: voir dire transcript at p 10.
The submissions made on behalf of the accused at the close of the evidence and after the Crown spoke to the written submissions it provided, did not challenge the use of the evidence allowed by his Honour for tendency and coincidence reasoning. However, upon the terms used in the orders dealing with evidence for coincidence purposes and the reading of his Honour’s judgement overall, there was some concern about whether his Honour might be understood to have blended the concept of tendency with the evidence he allowed for use as coincidence evidence, and thus, to avoid the risk that the Crown might be thought to be seeking to rely more expansively upon evidence upon which it relied for coincidence purposes, written submissions were provided to confirm the scope of the Crown’s reliance drawing upon his Honour’s judgement: voir dire transcript p 12 at p 244 and following.
The Crown acknowledged that upon the entirety of his Honour’s judgement the Crown has leave to use certain pornographic material as coincidence evidence in respect of then count 5, now count 6, and count 7 respectively but not as tendency evidence.
The Crown relies upon the pornographic material as coincidence evidence in respect of count 6 and 7 consistent with his Honour’s rulings and alleges that the pornography in the accused’s home and the allegations made by the complainant RH about the conduct in counts 6 and 7 are not coincidental. The Crown does not reagitate for the use of that pornographic material for tendency purposes for which use it had argued before his Honour.
His Honour’s ruling upon the Crown’s application to rely upon evidence for tendency and coincidence drawn from JusticeLink were as follows. Herein his Honour’s reference to count 5 should be read as related to count 6 in the present indictment.

A. Tendency

First Ruling

In respect of the eight counts relating to RH leave is granted to the Crown to use her evidence on each count as tendency evidence in respect of the other counts on the indictment related to RH in an attempt to prove:
I. The accused’s tendency to have a particular state of mind, namely a sexual interest in RH, and
II. The accused’s tendency to act on that sexual interest by engaging in sexual conduct with RH.

Second Ruling

In respect of the five counts relating to AH leave is granted to the Crown to use her evidence on each count as tendency evidence in respect of the other counts related to AH in an attempt to prove:
I. The accused’s tendency to have a particular state of mind, namely a sexual interest in AH, and
II. The accused’s tendency to act on that sexual interest by engaging in sexual conduct with AH.

Third Ruling

Leave is granted to the Crown to rely upon the evidence of each of the complainant on the indictment as tendency evidence in respect of the counts relating to each of the other complainants in an attempt to prove:
I. The accused’s tendency to have a particular state of mind, namely a sexual interest in young teenage and pre-teenage girls and
II. The accused’s tendency to direct on that sexual interest by engaging sexual conduct with young teenage or pre-teenage foster children placed in his care at times when he was the only adult in the presence of those female children.
Leave for the third ruling is conditional upon the following questions and/or answers being deleted from the JIRT interview of SC-A on 1 February 2018.
i.  A 64;
ii.  Q 65;
iii.  A 210;
iv.  Q 211;
v.  Q and A 216;
vi.  Q and A 217;
vii.  Q and A 218;
viii.  Q and A 219; and
ix.  Q 226.

Fourth Ruling

In respect of each of the counts on the indictment, leave is refused to rely upon the accused’s possession of pornography (table 1) to the Crown’s submission (MFI #1), and the use of it for tendency purpose. That is to establish that the accused had a tendency to have a particular state of mind, namely a sexual interest in young teenage and pre-teenage female children.

B. Coincidence

Fifth Ruling

Leave is refused for the Crown to rely upon coincidence reasoning in respect of the following two events:
I.   The complaint about the accused by RH and AH (first event) and
II.   The complaint about the accused by FCA (the second event) ...

Sixth Ruling – Counts 1 and 9

7. Leave is refused to rely upon coincidence reasoning in respect of the following events:

I.   That between August 17 and March 18, RH and AH each made a complaint about the accused, taking photographs of their vaginas in the particular manner specifically that
1.   the photograph was taken of their exposed naked vagina;
2.   the accused took the photograph in a very close proximity; and
3.   the photograph only depicted their vaginas and not their face of the room/surroundings; and

II.   That on 12 August 2018, several USB drives containing pornography were found at the home of the accused and the images of those USB drives included at least 156 images that were photographs:
1.   depicting an exposed naked vagina (without pubic hair);
2.   that appeared from the image to have been taken in a very close proximity and
3.   the only depicted close-up image of a vagina and not the subject’s face or surroundings.

Seventh Ruling - Count 5 (Count 6 in the present indictment)

8. Leave is granted to rely upon coincidence reasoning in respect of the following events:

I. that the accused asked RH to insert food (specifically lollies) into her vagina and after she had done so he ate it and indicated taste good; and
II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused and that the pornography included the images and videos of females inserting food (including chocolate Easter eggs, cherry tomatoes, cucumbers, courgettes, pumpkins) into their vagina or anus.

9. The Crown relies upon that evidence to show that the accused:

I. Did a particular act, namely the act alleged in count 5 on the indictment (count 6 in the present indictment); and
II. Had a particular state of mind, namely a sexual attraction to the insertion of foods into vaginas.

10. I note that the Crown relies upon the evidence brought in support of its case on count 5 (now count 6) alone.

Eighth Ruling

11. Leave is granted to rely upon coincidence reasoning in respect of the following events:

I. that on one occasion the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath; and
II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused, and that pornography included multiple images of videos of females inserting bottles into their vaginas or anus (including but not limited to: moisturiser bottles, plastic soft drink bottles, tomato sauce bottles, various glass bottles and various bottles of alcohol).

12. That evidence is to be tendered in an attempt to prove that the accused:

I. Did a particular act, namely the act alleged in count 7 on the indictment and
II. Had a particular state of mind, namely a sexual attraction to the insertion of bottles into vaginas.

The Crown relies upon the evidence in support of its case on count 7.

Ninth Ruling - Count 7 (Household items)

14. Leave is refused to rely upon coincidence reasoning in respect of the following events:

I. that on one occasion the accused asked RH to insert everyday household objects, being two shampoo bottles, into her vagina while he was watching in the bath; and
II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused and that pornography included multiple images of video of females inserting ordinary household items (including but not limited to garden hose, remote control, metal aerosol can, mobile phone, moisturiser bottles, tomato sauce bottle, grass condiment container, assorted soft drink or alcohol bottles into the vaginas or anus) save for images 3WF and 4XF in respect of which leave is granted.

15. The evidence was sought to be tendered in an attempt to prove that the accused:

I. did a particular act, namely the act alleged in count 7 on the indictment; and
II. had a particular state of mind, namely a sexual attraction to the insertion of ordinary household items into the vaginas.

16. I note that the Crown sought to rely upon the evidence in support of its case on count 7.

Conditions of Grant of Leave – Counts 5 (now Count 6) and 7

17. The leave granted above is conditional upon pornography evidence tendered by the Crown being alluded to the following:

I.   In respect of count 5 ((now count 6) (the seventh ruling) - inserting food), to the material referred to in para 102 of MFI #1;
II.   In respect of count 7 (the eighth ruling - bottles) to the material referred to in para 113 of MFI #1, save for images B23 (17 May 2012), which is not pressed by the Crown and
III.    Images 3WF and 4XF in paras 119 of MFI #1.

18. I confirm that the trial date of 8 November 2021 with an estimate of three to four weeks.

TENDENCY EVIDENCE - COINCIDENCE EVIDENCE

The Crown relies upon evidence of alleged misconduct of the accused as tendency evidence and coincidence evidence. I must bring to mind the principles to be applied.
Effective from 1 March 2021, s 161A Criminal Procedure Act provides:

A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.

If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt but only to the extent that it is adduced as proof of the element or essential fact.

Subs (1) does not apply if the Court is satisfied –

there is a significant possibility that the jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and

evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.

DIRECTIONS RELEVANT TO TENDENCY EVIDENCE

The Evidence Act1995 provides for tendency evidence in s 97 which is in the following terms:

Evidence of...a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of a person’s character or otherwise) to act in a particular way, or have a particular state of mind unless –

the party seeking to adduce the evidence gave reasonable notice in writing to each other party if the party’s intention to adduce the evidence, and

the Court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence have significant probative value.

Subsection (1)(a) does not apply if –

the evidence is adduced in accordance with any direction made by the Court under s 100, or

the evidence is adduced to explain or contradict tendency evidence adduced by another party.

From 1 July 2020 the Evidence Act1995 included s 97A. This applies to proceedings other than those, the hearing of which had commenced before that date. It provides the presumption of the significance of the probative value of the proposed tendency evidence in proceedings involving child sexual offences. Judge Wilson SC did not refer to this in his judgement.
In the second reading speech for the Evidence (Tendency and Coincidence) Act 2020 No 8, which commenced from 1 July 2020, the Attorney General said with respect to the transitional provisions in cl 28 of schedule 2 of the Act (Hansard Legislative Assembly 25 February 2020):

“...the intent of the transitional provisions is that, first, in a case of summary proceedings, the reforms will not apply to matters in which a court attendance notice was filed prior to the commencement of the reforms; and, secondly, in the case of a trial heard on indictment, the reforms will not apply to matters in which an indictment has been presented and the accused person has been arraigned prior to the commencement of the reforms. The reforms will apply in circumstances where a court attendance notice has been filed in respect of an offence that will be heard on indictment but where the indictment has not yet been presented and the accused person has not been arraigned. I note that this intent is consistent with a decision of the Court of Criminal Appeal in GG v R [2010] 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230; BC201007553. In that decision, which considered the 2007 transitional provisions, the Court of Criminal Appeal held:

There is no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial.
The purpose of the transitional provisions is to prevent the reforms impacting a proceeding, the hearing of which has already commenced. The text at proposed cl 28 sub-cl (1), which provides that an amendment made to the Evidence Act by the bill “does not apply in relation to proceedings the hearing of which began before the commencement of the amendment”, is intended to mean that the amendments to the bill will not affect Court proceedings that have commenced, first, in the Local Court in the case of summary hearing; or, second, in the District or Supreme Court in the case of a trial on indictment”

In GG v R ibid the meaning of the phrase “proceedings the hearing of which began before the commencement of the [Provision or Act]” Beazley JA with whom the other members of the Court agreed wrote at para [102]:

“..., the Evidence Act is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, I am of the opinion that, on its proper construction, it is referring to the hearing of a particular proceeding, in this case, trial on indictment”.

I need not consider whether the attribution to the Court of Criminal Appeal in the second reading speech is a fair reflection of the careful and thorough analysis for the conclusions reached by Beazley JA. Neither is there need for me to consider the effect of 97A of the Act in this case, for I have come to the view that the decisions reached by Judge Wilson regarding the probative value of the evidence of tendency and coincidence purposes are sound and I agree with them. Moreover, the application of this provision to these proceedings has not been the subject of argument before me, and it did not inform his Honour’s decisions which the parties have not sought to reagitate. As noted, Mr Conditsis has not made submissions against the use of the evidence for the purposes of the tendency rule and the coincidence rule in accordance with his Honour’s judgement.
I do not overlook however that implicit in Mr Conditsis’s defence of the accused is the proposition that the evidence upon which the Crown relies for the tendency rule and the coincidence rule, regardless of the probative value that it has alone for admission under s 97 and s 98 respectively, and upon consideration of s 101 Evidence Act1995, is not sufficient to support the allegations by the complainant to which it is relevant, and in combination with the balance of the evidence, that the Crown case does not prove beyond reasonable doubt the accused’s guilt.
The Crown submits that the Court would be satisfied the accused had the tendency for which it contends, as expressed in the rulings given by Judge Wilson SC because of his conduct as described by his Honour. I need not repeat the tendency and conduct for which the Crown contends here.
The Crown says this conduct reveals the accused had the tendency there described which makes it more likely he committed the offences charged in the indictment.
I must consider the evidence relating to the alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so I do not consider each of the acts in isolation. I shall consider all the evidence and decide what conduct I am satisfied occurred.
If I decide that all, or at least some of the conduct occurred, I then must consider whether it enables the inference to be drawn that the accused had the tendency for which the Crown contends.
I note the care that must be applied to the drawing of inferences; that I must consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I must bear in mind those directions when considering this part of the evidence.
If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In those circumstances I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown case.
If I find the accused did have the tendency for which the Crown contends then I can use that in considering whether it is more likely that he committed the specific offences with which he is charged. It is essential that I consider in relation to each charge whether the accused acted in a particular way and had the particular state of mind alleged on that specific occasion.
Finding the accused to have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on many of the occasions that are the subject of the charges. That is the only way the accused’s tendency may be used.
Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown provided I am satisfied it has been established.
When considering whether a charge has been proved, I must decide whether the Crown has proven the essential elements in the charge.

DIRECTIONS RELEVANT TO COINCIDENCE EVIDENCE

As part of its case against the accused, consistent with the rulings of Judge Wilson SC, the Crown has led evidence that the accused asked RH to insert food (specifically lollies) into her vagina and after she had done so, he ate it and indicated it tasted good, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused that included images and videos of females inserting food, including chocolate Easter eggs, cherry tomatoes, cucumbers, courgettes, pumpkins into their vaginas or anus. The Crown relies upon that evidence in support of its case on count 6 alone, to show that the accused did the act alleged and had a sexual attraction to the insertion of foods into vaginas.
The Crown has also led evidence in support of its case in count 7 that on one occasion the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused which included multiple images of videos of females inserting bottles into their vaginas or anuses to prove that the accused did the act alleged in count 7 on indictment, and had a sexual attraction to the insertion of bottles into vaginas.
The Crown, in accordance with his Honour’s ninth ruling, also led evidence that the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused including the images identified as 3WF and 4XF, permitted by his Honour Judge Wilson SC to prove that the accused did the act alleged in count 7, and had a sexual attraction to the insertion of ordinary household items into vaginas.
As noted above listed, lest it be thought from the language used by his Honour that the Crown was endeavouring to rely upon this evidence for tendency purposes, the Crown has made it clear that the Crown relies upon the pornographic material as coincidence evidence in respect of count 6 and 7 on the indictment, consistent with his Honour’s rulings, and alleges that the finding of the pornography in the accused’s home and the complaints made by the complainant about the conduct in counts 6 and 7 were not a coincidence.
I note that the pornographic material found in the accused’s home and relied upon as coincidence evidence is agreed between the parties and appears in the agreed facts tendered during the trial.
This evidence is tendered in support of the contention by the Crown that there is such a strong similarity between acts founding counts 6 and 7 respectively, and the possession of the pornographic material found in the circumstances described, that the Court would be satisfied that the accused had that material and must have done the acts charged, that is to say, there is such a significant similarity between the two acts, namely, those charged, and the possession of the material, that it is highly improbable that the events occurred simply by chance or coincidence. The improbability of two or more events occurring by chance or coincidentally may lead to a conclusion that the accused committed the acts, the subject of the charges.
The Crown says that the Court would be satisfied the accused possessed the pornography, that it depicted conduct such as the accused had the complainant engage on alleged counts 6 and 7, and that it was also so similar to the acts alleged in counts 6 and 7 that the Court would conclude beyond reasonable doubt that the accused must have committed the offences with which he has been charged in counts 6 and 7.
The evidence of the pattern of behaviour can only be used in the way the Crown asks if I find, first, that the accused did have possession of the pornography depicting the images as described and, secondly, that the depictions are so similar to the acts giving rise to the charge, that I find it is highly improbable both acts were unrelated. If I accept those two matters, then I can use that evidence together with the other evidence in the Crown’s case to be satisfied beyond reasonable doubt that the accused committed the acts giving rise to the offences charged in 6 and 7.
This is the only way I can use the evidence of other acts. I cannot reason that because the accused may have had possession of pornographic material that he is the type of person who will commit criminal activity generally or that he is a person who is likely to have committed the offences charged. The evidence is not before me for that type of general reasoning. I cannot punish the accused for the possession of the pornography attributed to him by finding him guilty of the charges on the indictment.

CONTEXT EVIDENCE

There are several important directions I must bear in mind regarding the evidence of context that the Crown relies upon.
Before the accused may be found guilty of any charge on the indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred as alleged by the complainant.
The Crown led evidence of other acts of alleged misconduct by the accused towards the complainants, RH and AH. These other acts are not the subject of the charges.
The evidence of other acts alleged by RH was:

The accused would take her back to the shed in the rear yard of the property and touch her vagina and breasts beneath her clothing;

In the shed he showed her a video pornography depicting multiple males having sex with a woman;

In the shed he had penile vaginal sexual intercourse with her;

In a car he touched her vagina and breasts beneath her clothing after netball training.

The evidence of other acts alleged by AH was:

Digital penetration of and playing with her vagina after lowering her pants and underpants at least once a week including in her room;

Digital penetration of her vagina after lowering her pants and underpants twice in the loungeroom;

In the upstairs lounge room showing images of females with dildos and females and males having sex; and

Digital penetration of her vagina in the spare room when on a bed after the accused lowered her pants and underpants.

This evidence was admitted solely for the purpose of placing the evidence of each of these complainants towards proof of the charges into what the Crown says is a realistic and intelligible history of the conduct by the accused toward the complainant in each case as she alleges it took place.
The Crown advances this evidence upon the argument that without the evidence of these other acts one might wonder about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstances to link them in any way. Without the evidence of the other acts, the Crown would submit that the complainants’ evidence was less credible. The evidence is only to answer questions as might otherwise arise about the allegations in the charges on the indictment.
The Crown submission is that with the particular acts charged placed in wider context of what the complainants allege was an ongoing history of the accused’s conduct toward them in each case, what might appear to be a curious feature of the complainants’ evidence that they did not complain about what was done to them on a particular occasion would then disappear.
Thus, the law permits a complainant to give an account of the alleged sexual history between herself and an accused person in addition to the evidence given in support of the charges on the indictment to avoid artificiality or unreality in the presentation of the evidence from the complainant and allows the complainant to more naturally and intelligibly explain their account of what allegedly took place.
The Crown can therefore lead evidence of other acts of a sexual nature between the accused and the complainant to place the charges into the context of the complainants’ account of the whole of the accused’s alleged conduct.
However, when this evidence is put before the Court for this purpose only as in this case, I must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainants made other allegations against him. If admitted for context purposes only, the evidence has that very limited purpose and it cannot be used for any other purpose or as evidence that the allegations contained in the charges have been proved beyond reasonable doubt.
I must not substitute the evidence of the other acts for the evidence of these specific charges on the indictment. The Crown is not charging the course of misconduct by the accused but has charged particular allegations arising in what the complainants say was a course of sexual misconduct. I am concerned with a particular and precise occasion alleged in each charge.
I must not reason that because the accused may have done something wrong to a complainant on some other occasion, he must have done so on the occasions alleged in the indictment. I cannot hold the accused accountable for other acts attributed to him by finding him guilty of the charges in the indictment. This would amount to a misuse of the evidence.

COMPLAINT

The Crown relies upon what the complainants said to others about the alleged conduct by the accused as evidence that such did occur. Section 66(2) Evidence Act 1995 provides for such evidence.
This evidence is then available to the tribunal of fact called upon to decide whether the complaint was made and in what its contents were.
If the complaint was made substantially to the effect of what the complainant alleges, the evidence of what was said in the complaint can be used as some evidence independent of the evidence given by the complainant that such conduct did occur. It thus may be used as evidence of the truth of what the complainant alleged. The Court would be entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was less likely to have been fabricated and more likely to be accurate. Other matters that can also be considered include evidence of distress.
The Crown also contends that the fact that the complainants raised their allegations against the accused at the time and in the manner they did, would lead one to accept their evidence as more believable than if they had not raised the allegations as they did.
If satisfied that complaint was made, the question is did the complainant act in the way one would expect if they had been the subject of the alleged conduct. Is what they did the sort of conduct one would expect of a person who has been treated in that way. If the complainant has done what one would expect someone in their position to do that may support the Crown case because of consistency between the complainant’s conduct and the allegation against the accused.
On the other hand, if the complainant has not acted in the way one would have expected someone to act and after being assaulted as described, then that may indicate that the allegation is false. But one must bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged conduct and that a failure to do so does not mean that the allegation must be false.
The fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate; a false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
Offences contrary to s 61O, 66C and s 66EB Crimes Act 1900 are prescribed sexual offences as defined in s 3 Criminal Procedure Act1986.
Section 293A Criminal Procedure Act 1986 provides:

This section applies if, on the trial of a person for prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.

In circumstances to which this section applies, the Judge may inform the jury –

that experience shows –

people may not remember all the details of a sexual offence or may not describe the sexual offence in the same way each time, and

trauma may affect people differently, including affecting how they recall events, and

it is common for there to be differences in accounts of a sexual offence, and

both truthful and untruthful accounts of a sexual offence may contain differences, and

that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

In this section difference in an account includes –

a gap in the account, and

an inconsistency in the account, and

a difference between the account and another account.

This provision was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No. 33 which has been effective since 1 December 2018. This amendment was introduced after the commencement of the proceedings against the accused. JusticeLink records that the accused was charged with the first series of offences on 12 March 2018 and additional charges on 20 November 2018.
Section 294 Criminal Procedure Act 1986 provides relevantly for this trial:

This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest –

an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

delay by that person in making any such complaint.

In circumstances to which the section applies, the judge –

must warn the jury that absence of a complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

And AH agreed she gave the accused and PM a hug to greet them

AH could not recall saying to Pauline “I should never have left” but importantly conceded she may have said it – and AGREED when Ray left that she gave him a hug but denied telling Ray she loved him – 604.35 – 606

Submission: Implausible these things would have occurred if AH’s or RH’s allegations were true

Warning

Speaking to Police [Bidner] on 27 January 2017 and Lead-Up to AH Statements

Recalls local copper Dan – 606.20

Recalls Dan speaking with parents and R and AH and all present – and that RH made allegations against Ray – 606-607

Agreed AH told Dan she didn’t know anything about R’s allegations

Submission: Would have been a perfect time for AH to support her sister if the allegations were true – by saying something like “yest it’s true and he did it to me too”

Warning

AH agreed she told Dan she had not been touched - BUT told the court that denial wasn’t true

Submission:

Self-serving evidence when caught out

That she would deny the abuse at that time and in those circumstances because she didn’t want to upset her parents further is implausible

Warning

607.32 – AH said she didn’t tell Dan because mum and dad were already worked up

When asked why didn’t ask to speak to Dan later – AH said her mum would have caught on

Submission:

Demonstrates AH had an answer for everything

Would she have seriously considered at that time – that she could tell Dan but if she did her mother would catch on?

Her evidence was being made up on the run

Told mum couple of months after Dan – 608.6

AH Taken to SC Bear Conversation on 4 August – 608.15

She couldn’t recall saying to him the sexual assaults started when she was 13 – however – SC Bear’s evidence was clear as to what AH told him at her home on 4 August 2017 – the same day Mr Haggarty later attended her home – when he was taken to his statement and agreed relevantly it read:

“I entered the premises and had a conversation with A where she disclosed to me that she had been sexually assaulted by Raymond Maguire, which started in 2013.”

[At 702.41]

AH Taken to MFI 13 – Statement dated 16 August 2017

Taken to para 6 as to her saying it happened lots of times but recalled an incident when about 13 and then went on in paras 7, 8 and 9 to talk about count 11 – dining room and being cornered against bookshelves – and agreed this is the only incident that the statement talks about – 608-609

AH agreed that her statement made no mention of:

Any photos taken of her by the accused

Watching any porn with the accused

Penile vaginal penetration

Any fingering in lounge room – or any sex for that matter [in the lounge room]

Didn’t say to Tolhurst – there is stuff “I don’t want to talk about”

Didn’t say to Tolhurst that she would provide more detail mater

Agreed when talking to Tolhurst, she was doing her best to tell him everything!!!! 609.47

But then somewhat watered down at 610.2 and said: “A. No. I just didn’t want to tell him too much, because I felt extremely uncomfortable.

Submission:

The omissions in her first statement are breathtaking given the content of her second statement

The omissions together with the content of her second statement – about 9 months after RH’s first statement strongly infers collusion as between AH and RH

Warning

AH Second Statement 21 March 2015 – MFI 14

Much more detail and includes important matters left out in first statement– 610.15

Between her first and second statements – living with RH – 610

annexure c

ANNEXURE “C”

SCA

DEFENCE DOT POINTS NOTES OF EVIDENCE

THURSDAY 2 DECEMBER

CHIEF

739.37 – saw both her ROI’s and both true

749-750 – Taken specifically to first ROI and said “true”

And at 750 – same with second ROI

[And confirmed in cross examination both were true and correct 758.32]

754.35 – taken to being shown penis in lounge room – Pauline Maguire [PM] not there

756.4 – Disclosure to Pauline

Didn’t believe me

“Pretty sure” told her when she got home [from Canberra] and unpacked

756.18 SCA said she told PM: “Ray did something really bad, and I don’t know what to do. He showed me his penis, and then I was scared.”

756.40 – SCA said would have used the word “dick”

756.50 – SCA said that PM said “I don’t believe you. He will never do that” – PM said nothing else so far as she knows

757.10 – nor did SCA say anything more she can recall

Submission: It is unlikely that the conversation, even on SCA’s version would have ended as stated

No Disclosures in First ROI and Child Fantasy

757.15 – SCA response as to why not make disclosures in first ROI – because as to her fear and that she did not feel safe

Submission:

SCA’s evidence appeared rehearsed and unrealistic

That is because SCA in her first ROI was making very serious allegations of violence anyway and there was no sense of fear by SCA in that ROI and it appeared she was relishing in it – perhaps encouraged by the OIC’s expression of “wow”

AND significantly, SCA told MF at school the very day she was removed from care in August 2017 that she wanted to stay with the accused and PM and was observed by MF to have been upset

SCA’s first ROI was with respect no more than child fantasy

The lack of disclosure and her apparent enthusiasm to advance the fantasies of violence are consistent with what accused told police in his ERISP – as to SCA making false allegations of violence whilst living with them and also the evidence of PM and MF

The significance of the fantasy lies in SCA’s first ROI cannot be understated – aggravated by no disclosure in the face of significant leading by the OIC

Warning

Friends with AH

759.5 – got on fine with AH and were friends

SCA taken through Contact Visits with Mum, Dad and Jacqui and MF – 759.22

Started with mum, then dad , then Jacqui

Mum was once a month – day visits

Good thing spending time with mum – 759.38

Spoke to mum about stuff

Didn’t remember if discussed Ray and PM with mum – 760.5

SCA agreed there were lots of allegations of violence in her first ROI and said it started probably after couple of months and she said the same thing in cross examination – 769.8

Agreed would see Mark Fitzsummons [MF] about 1 a month and that he enquired how she was – that he was a good guy – 761.12

SCA said she did her best to be accurate and honest with MF - 761.36

SCA said she was being hit [by accused and PM] when she was seeing her mum and MF – 761.48

SCA agreed if afraid or scared of anything she could have told MF – 765.1

As to dad – 762.20 - and felt she could talk to him about anything and that he would protect her if could – 764.30

Would see dad more often than mum 762.38

Stayed overnight with dad but not with mum

Often stayed overnight with dad – 2-3 consecutive nights 763.5

“Pretty good” relationship with dad and sometimes sister Jacqui was there and good relationship with her too – Jacqui 7 years older – SCA would speak to her about school and who she liked and didn’t like – and about teachers and dance - 763.15 – 764.5

And SCA said she spoke to Jacqui about Ray and PM and felt could talk about anything with her – 764.24 and that Jacqui would protect her if could – 764.37

SCA said if afraid of anything she would have told dad and Jacqui – 764.42

SCA said she ‘probably’ also could have told mum if afraid – 764.47

Not know how to use Landline – Minimising knowledge of How to use phone – 765.35

SCA said didn’t know how to use landline

SCA said prior to Ray’s only used sister’s phone to take photos 765.50

BUT then agreed when pressed she had used a mobile phone before going to Rays’ - 766.27 and more than once but not more than 10 times – 767.37

Submission: SCA may have sought to minimise her knowledge of how to use a landline in anticipation of being asked why she didn’t call anyone when the violence was happening

SCA then said she had spoken to someone using a landline – and that the other person called her - 766.50 – 767

SCA said she would have known how to call off a mobile but not of a landline 767.45

Spoke to on Phone to Dad and Jacqui

Spoke to dad and Jacqui on PM’s mobile phone – PM or dad would call and hand phone to SCA – and SCA agreed she could say what wanted to dad and to Jacqui – 768

Very Vague and Uncertain as to when hitting stopped

SCA didn’t know if still being hit by Ray and PM when taken away from placement – and when asked if it stopped at some time said “I guess” – then when asked whether she knew if hitting stopped said “I don’t remember” - 769.34 –

Pressed on this and asked when was the last time she recalled being hit - said “I really don’t know” 769.45

Submission:

Extraordinary that SCA wouldn’t know whether the violence had stopped and if so approximately when - relevant to her leaving placement - if true AND

Inconsistent with what MF said SCA said to him at school on the day she was removed from placement and thereafter for a time – as to wanting to go back to Rays’ and Paulines’

Warning

SCA Knew it to be Wrong to be hit by adult – past experiences – 772.5

Taken to page 8 at Q 100 to Q 111 of her first ROI – re being hit by step-father [Chad Stein] – 772.49

Asked was Chad doing the hitting and SCA said I think so - 773.20

SCA knew it was wrong for Chad to hit her and that police would want to know - 773.27

Submission: Knowing it was wrong to be hit by accused and PM – it is very unlikely if not implausible she would not have told her father or Jacqui about the violence

Warning

When asked as to whether told anyone other than police – SCA asked for a Break – 775.1

SCA asked for a break when she was asked as to whether she had told anyone other than police.

Submission: It is open to the court to find or at least suspect the break was sought because SCA knew she was being asked questions difficult to credibly answer

SCA said didn’t know why she didn’t tell mum, dad, Jacqui or MF about the violence – 775

Her Own Tablet – Technology – 776.12

SCA was taken to her first ROI and she asked to read Q60 – Q 73

SCA knew iPad and tablet were the same thing and whether a device was an ‘Apple’ or not

SCA said she was ‘getting good at it” – using iPad – but this was after she had left Rays’ – 776.49

Initially SCA said she did not recall having a tablet with Ray and PM but when asked to take a moment and think about it - then said – ‘yeah I remember now’ 778.22

Submission: Care to be exercised in accepting SCA’s first responses

It was a tablet used for education purpose - for school – used it and was getting better at it

SCA said her tablet had internet and Ray and PM connected it – 779

SCA said she only used the internet for games - 780.35

SCA said her tablet was auto connected to Wi-Fi

SCA said no-one was watching over her shoulders as to what she was doing when using tablet – other than her sister watching her play games - 781.10

SCA recalls PM and Ray having a tablet – and their phones - not laptops or computers – 782

Exhibit L wrong – as to bedrooms – 783.25

SCA said initially that her marking of her bedroom was not wrong but then agreed – it was wrong and was as put to her - 783.50

Knew would be talking to Police re First ROI – 784.31 - 786

Taken to page 11 of her first ROI – at Q 145 – as to being asked why she was there – to talk to police about Ray [and PM]

Submission: SCA likely assumed that police suspected that accused and PM did something wrong

SCA taken to her telling OIC in ROI that she said to Ray and PM ‘stop stop stop…’ and was then taken to page 9 of her ROI when she had also told the OIC that that is what she said to Chad when he was hitting her - and SCA was asked if when she answered that the she told the accused and PM “stop, stop, stop” whether she was thinking of what Chad was doing to her – however SCA said no

Submission: It is instructive observation and the possibility of transference of violence by Chad to SCA to the accused and PM looms large – due not only to this evidence but also to the extreme fantasy demonstrated in SCA’s first ROI – that PM would have sat by and laughed and watched the accused hit and kick SCA and then join is quite frankly, unbelievable

As to dance and who would take – ‘bit of both’ – 764.13

As to Ray and Pauline taking here to dance

Matter adjourned to Friday 3 December

As to SCA’s Anger – 799 - 810

SCA got legal advice from Liz Moran earlier in the morning

SCA agreed would get angry

When asked about throwing things said didn’t want to answer and HH gave a s.38 certificate - 799

SCA said threw objects to protect herself – 799.32

Submission: Calculated answer and fanciful – very problematic as to her credibility and reliability

Warning

Took SCA through throwing things and hitting Ray and photos of damage to walls and doors and ‘fucking dog cunt’ – many times – and towards Pauline as well ETC – the thrust of her answers being that she was acting in self defence - 800.14

Submission: Contrast what told MF told the court as to his observations of SCA and lack of complaint to anyone about violence

Damage to walls – because she was unsafe in that house – and seeing Ray’s penis – then when asked if the damage was done after seeing his penis – SCA said “I’m pretty sure, yes” 803 – 804

Submission: SCA may be young but she is not naïve and her answers were at times seeking to minimise her actions/conduct and particularly, when on the evidence of the accused, PM, MF and Klyde Morris – SCA’s outbursts were typical of her behaviour from the start of her arrival in placement at the home of the accused and PM

There was then this exchange as to damage to a wall – Submission: whilst regrettable as to her feelings – it illustrates her feelings at commencement of living with Ray and PM - 805.20:

Q. Why did you kick it?

A. Because he hurt me, and I wanted him to feel hurt like he hurt me.

Q. When you say he hurt you, how did he hurt you?

A. He always grabs me, always hurt me, always like threatening me, always like pushing me - yeah.

Submission: This evidence is of course about striking back – not even about sexual activity – SCA is here only referring to the fanciful physical assaults – demonstrative of her overall hurt because of her past and perhaps transferring onto the accused and PM the hurt caused to her by others in her past

Then SCA clarified her evidence and said the accused did not say anything but showed her his fist - 806.15

SCA said she didn’t think the accused had ever punched her [but contra her first ROI with police] - 806.25

The video of SCA stomping on a toy was then played to her – MFI 29 USB – 808

Then at 810.3 this exchange [SCA not sure if before or after seeing Ray’s penis and not know if afraid at the time]:

Q. Why did you do that?

A. I don’t know. I was young. I don’t know what the heck I was doing half the time.

Submission: A truthful answer – regrettably such was her anger and hurt from her past – her emotional state when not knowing what she is doing - must impact on at least her reliability

Denied telling MF and FACS that she wanted to go back and live with Ray and PM

Outright denial at 813.5

Submission:

SCA didn’t admit to saying these things but not true

It is possible SCA doesn’t recall saying these things

But likely SCA won’t concede she said these things knowing that she did – to be contrasted with the very fair evidence of MF – a very capable and well-meaning case worker doing a very difficult job

OIC saying “wow” during first ROI – 813

Taken to a number of Q&A’s – 185, 212, 213,

Agreed she was encouraged to tell him more – “yeah I guess so” – 814.47

Pauline Watching and laughing

Even in oral evidence stood by her ROI as to this – 815.30

Submission: It has already been submitted that this is extreme child fantasy but regrettably, with a sinister intent – to get an innocent person into trouble because of the “hurt” felt by SCA – hurt caused by other, not the accused or PM

AS to MF coming to School

SCA was taken to Q 217 of her ROI – meeting with MF and Kelly at school - 815.41

SCA said she thought the meeting was when she was leaving placement – which is consistent with MF’s evidence – when he attended her school to collect her – 816.31 and 816.49

SCA did not recall telling MF and Kelly that she did not want to leave Ray and PM – and denied saying she wanted to go back and live with Ray and PM - 817.2

Submission:

MF’s evidence was strong as to his notes of SCA being upset and SCA saying those things to him and Kelly

Likely SCA was not being truthful and seeking to distance herself from what she knew she had said to MF and Kelly

This has a significant adverse impact on her credit

Warning

And later in XXN at 843 – SCA said she was pretty sure MF asked her if she was happy living with Ray and Pauline but then said didn’t recall her response

Submission – SCA’s evidence was erratic and at times made up on the run

Warning

Agreed MF would ask her if happy and any concerns – 843

Denied telling anyone wanted to return to living with ray and Pauline

Submission: Again – contrast the credible evidence of MF – 843 – 844.5

First ROI – page 19 – Q 235 – what not like about Ray

SCA was taken to same and she confirmed correct that that was what she didn’t like – that is – trying to frighten me and hurt me – and then throwing shoes - 817.5

Submission: Perfect occasion to tell police about the porn, rubbing his penis and showing his penis BUT didn’t

Knew to ring Police if Ray/PM did something wrong and telling OIC told MF

SCA knew to ring 000 and DOCS - 818

Then taken to her answer as to not calling police and she then said - she thought she told Mark – at Q’s 240-241

At 822.34 – 823.32 SCA was taken to her prior evidence as to not telling anyone – it was read out to her that she had not told her father, Jacqui, mum or Mark

Submission: Clearly on the evidence SCA didn’t tell Mark and she was either being untruthful or her evidence is at best unreliable as to having told Mark

Ray removed her bedroom door to stop her from slamming it

SCA agreed that Ray had removed her bedroom door to stop her from slamming it - 825.49

Stood by description in her ROI of and that Ray choked her

Q’s 376-379 in ROI – as to hand movements and choking – she stood by it – 826

Submission: Childhood fantasy

Taken to Second JIRT ROI

Sexual Activity Only happened Once

Second ROI with detective Harrison – SCA told her Ray showing penis only happened on one occasion – and same with porn on iPad – only once – and SCA agreed with that in her evidence

Ray at Door and I knew he would ask me or something

Taken to what she said at Q 41 - asked what she meant and said I don’t know – 827.43

Taken to Q 55 when she said that Ray said he was going to show her something “and I knew what it was” – and then this exchange at 828.30

Q. What did you mean by the words, “And I knew what it was”?

A. Because he was rubbing on his penis.

This then started lengthy XXN as to what Ray did at the door and established SCA did not tell police that he had rubbed his penis at the door – 828

At 829.10 asked how she “knew” and she said “I don't know. I just thought about it, I guess. I don’t know.”

Then at 831 taken to Q 112 at page 11 of ROI – when SCA said that Ray asked her to come out and he would show her something – then she was asked what he did and she said he had a smile – a good smile like a plan that’s going on – and she was asked what she meant – like a plan that was going on – and she said like he was going to make a plan and when the officer said “Yeah” – SCA said “That and I probably knew what he was going to show me.”

And when asked how she knew that is the first time SCA said – he was rubbing his penis in front of me – 831.23

Then SCA was taken to the rest of her answers in ROI – undies up the butt ETC including Q’s 124 -132 inclusive and Q 335 – when Jones asked how SCA knew undies on if had shorts on - and SCA answered “I don’t know but I think”

But in cross examination, then asked was that answer correct and SCA said:

“A. I think so, because I don’t remember, I was young.”

Then when SCA was asked if she saw what he did – SCA said moving his penis in front of me – but she agreed that’s not what she said to police 831-833

Crown Submission as to Rubbing Penis

The Crown submitted that SCA in her second ROI did offer a 10 years old explanation for seeing the accused rub his penis at her doorway.

Submission

That submission should be rejected

SCA demonstrated in her first ROI, let alone her second ROI that she was more than capable of explaining herself in the context of what she saw happening

It would not have been difficult for SCA to have said simply what she said in oral evidence she saw, namely that she saw the accused “rub” or “rubbing” his penis and she had numerous opportunities to do so

That is because police kept coming back to the same topic because her evidence was confusing [see for example Q 335] – not because SCA was speaking like a qo years old but because she was making things up on the run

Experienced JIRT police officers clearly did not form the view that the Crown did and the Crown submissions on this point should be rejected.

SCA Complaint to Pauline – 840

SCA was taken over her evidence in chief - [in chief at 756.16] and SCA said “pretty sure” PM said “That’s a serious thing to be saying. You shouldn’t say it if it’s not true” - at 840.8 – 841.50

SCA denied telling PM that what she had said was not true 842.40

Submission:

The manner in which PM’s evidence fell out had a real sense of believability about it

That when SCA admitted to PM that her allegation was untrue – PM told SCA that she would have to tell MF and that is when SCA became upset, cried and pleaded with PM not to tell MF because of her fear she would be removed from placement with the accused and PM

The emotion on PM was evident as PM was giving her evidence

PM said she relented and agreed not to tell MF because SCA was so upset

With the benefit of hindsight it may not have been the right thing to do but nonetheless understandable given what must have been a very emotional situation

PM’s evidence should be accepted

Photos of Walls/Door to House – 844 .20

At 844.20 – 846 and SCA largely blamed what Ray did for her actions

Submission: The problem with that evidence from SCA is that there is ample evidence of SCA’s outbursts from the commencement of her placement with the accused and PM

SCA’s Explanation for Non-Disclosure in her first ROI

SCA said she didn’t make any relevant disclosure in her first ROI in November 2017 - because she didn’t feel safe

Submission:

That evidence should be rejected

SCA had been living with Ms McCarten between August and November 2017 – 830.9

There is no evidence of any contact with the accused in that period

When the evidence of MF as to what SCA said to him back in August 2017 on the day she was removed as to wanting to live with the accused and PM and being upset at not being returned to them – is also considered – the suggestion that as at November 2017 SCA was fearful [by inference fearful of the accused] is not credible and should be rejected.

**********

Endnote

Decision last updated: 01 April 2022

Medium Neutral Citation:	R v Maguire (No. 1) [2022] NSWDC 92
Hearing dates:	09–12, 15–19, 22–24, 26, 29, 30 November 2021, 01–03, 06–10, 13, 17 December 2021
Date of orders:	18 February 2022
Decision date:	18 February 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	The accused is found guilty of each count on the indictment
Catchwords:	CRIME — Child sex offences — Child abuse material — Production CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Sexual offences — Act of indecency CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
Legislation Cited:	CrimesAct1900 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No. 33 Criminal Procedure Act 1986 Evidence Act 1995 Evidence (Tendency and Coincidence) Act 2020 No 8
Cases Cited:	Ewen v R [2015] NSWCCA 117 Fleming v R (1998) 117 CLR 250 GG v R [2010] 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230; BC201007553 Liberato v The Queen 1985 159 CLR 507 R v Asst Record of Kingston 1969 2QB 58 R v Chonka [2000] NSWCCA 466 R v Eade [2002] NSWCCA 257 R v Markuleski (2001) 52 NSWLR 82 R v Massie [1999] VR 542 R vMurray (1987) 11 NSWLR 12 Young v Cassels (1914) 33 NZLR 852 Yuen v R [2015] NSWCCA 117 Zoneff v The Queen (2000) 200 CLR 234
Texts Cited:	Hansard Legislative Assembly 25 February 2020
Category:	Principal judgment
Parties:	Regina (Crown) Raymond John Maguire (Accused)
Representation:	Rosheehan O’Meagher (Crown Prosecutor) Emanuell Conditsis (Solicitor Advocate for the Accused at trial) Michal Mantaj (Solicitor Advocate for the Accused for judgement) Director of Public Prosecutions (NSW) (Crown) Conditsis Lawyers (Accused)
File Number(s):	2018/00080289 & 2018/00264850
Publication restriction:	Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained