R v MC

[2021] NSWDC 239

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MC [2021] NSWDC 239

Hearing dates:

22, 23 and 25 February 2021

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Count 1 – Not Guilty

Count 2 – Guilty

Count 3 – Not Guilty

Count 4 – Guilty

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >14 <16

CRIMINAL PROCEDURE — Trial — Judge alone

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act1986 (NSW)

Evidence Act1995 (NSW)

Category:

Principal judgment

Parties:

Regina (Crown)
MC (Accused)

Representation:

Counsel:
Ms V Morgan (Crown)
Mr M King (Accused)

Solicitors:
Ms E Somerville (Legal Aid NSW)
Mr S Baumgarten (Office of the Director of Public Prosecutions)

File Number(s):

2016/00218094

Publication restriction:

Statutory non-publication order in relation to the identity of the complainant

Judgment

1. On 22 February 2021 MC, the accused, appeared before Wagga Wagga District Court for trial. 

2. The accused elected to be tried by judge alone.  The Crown did not consent. 

3. On 20 November 2020 His Honour Judge Lerve made an order that the trial proceed as a judge alone trial.

4. The accused was arraigned on an indictment in the following terms:

Count 1

Between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales did have sexual intercourse with T, a person then under the age of 16 years, namely of the age 15 years, without her consent and knowing that T had not consented to the sexual intercourse, the said T being at the time under the authority of MC by reason of MC being the father of her boyfriend (an offence pursuant to s 61D(1A), Crimes Act 1900 (NSW)).

In the alternative, Count 2

Between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales did have sexual intercourse with T without her consent and knowing that T had not consented to the sexual intercourse (an offence pursuant to s 61D(1), Crimes Act).

Count 3

Between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales did have sexual intercourse with T, a person then under the age of 16 years, namely the age of 15 years, without her consent and knowing that T had not consented to the sexual intercourse, the said T being at that time under the authority of MC by reason of MC being the father of her boyfriend (an offence pursuant to s 61D(1A), Crimes Act).

In the alternative, Count 4

Between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales did have sexual intercourse with T without her consent and knowing that T had not consented to the sexual intercourse (an offence pursuant to s 61D(1), Crimes Act).

5. The accused pleaded not guilty to each count. 

6. Ms Morgan, Crown Prosecutor, appeared for and on behalf of the Director of Public Prosecutions.  Mr King of counsel appeared for and with the accused. 

7. The trial proceeded on the following days: 22, 23 and 25 February 2021.

The Crown case at trial

8. The alleged offending occurred between 30 and 31 years ago, that is between 12 April 1990 and 16 March 1991 when T, the complainant, was 14 or 15 years old and in Year 9 or 10.  The complainant is now 45 years old.

9. At the time of the alleged offending the complainant was in a relationship with the accused’s son, G, who was 18 years old.  It is alleged by the Crown that on the second occasion that the complainant stayed at the accused’s house in XX that the accused entered the bedroom where she was sleeping, placed a hand over her mouth and then forcefully digitally penetrated her vagina (Counts 1 and 2) before having penile/vaginal intercourse with her (Counts 3 and 4).

10. The Crown case is that very shortly after the alleged sexual acts the complainant complained to her boyfriend, G, who was sleeping in the lounge room.  The Crown case is that G’s mother, C, was also in the lounge room and G told C what had happened.  The complainant then spent the night at the premises before returning to her home the next morning.

11. The Crown case is that there were two further complaints made by the complainant.  Firstly, a complaint made in late 1991 or early 1992 during a family holiday to Dalmeny where G, the accused and other family members were present, and secondly, a complaint made to the complainant’s older sister, J, in early 1992 after the family holiday to Dalmeny.

12. The complainant did not provide a statement to police until 17 December 2013, 22 to 23 years after the alleged offending, when she was 38 years old.

13. The accused was arrested on 19 July 2016.  He participated in a record of interview with police.  During the record of interview, he denied the allegations.  The accused did not give evidence in the trial and there was no evidence called on behalf of the accused at trial.

The evidence called in the Crown case at trial

14. The following witnesses were called to give evidence in the Crown case at trial:

1. T, the complainant;

2. C, the accused’s wife;

3. G; and

4. J, the complainant’s sister.

15. The following exhibits were tendered in the Crown case at trial:

1. Exhibit A - A plan of the house;

2. Exhibit B - The birth certificate of the complainant;

3. Exhibit C - The record of interview with the accused on 19 July 2016;

4. Exhibit D - A statement of Detective Senior Constable Noye, the officer in charge, dated 19 July 2016;

5. Exhibit E - A statement of Tanya Madison, the deputy principal of the High School T attended; and

6. Exhibit F - A plan of the house prepared by the accused during his record of interview with police.

16. The following exhibit was tendered on behalf of the accused at trial:

1. Exhibit 1 - A family tree.

General directions

17. In compliance with ss 133(2) and 133(3), Criminal Procedure Act1986 (NSW), I remind myself of the following principles of law.

18. As the accused has pleaded that he is not guilty to the counts on the indictment and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of each count and return my verdict according to the evidence that I have heard.

19. It is for me to assess the various witnesses and decide whether they are reliable.  I note that the reliability of any witness depends upon two quite different but sometimes overlapping considerations.  One is the witness’s honesty.  The other is the witness’ 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.

20. I have heard and received final submissions from the Crown and Mr King.  I have considered those submissions that have been made in the addresses and give those submissions such weight as I think they deserve.  In no sense are those submissions evidence in the trial.

21. I note that 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 that I have very important matters to decide in this case, important not only to the accused but also the whole community.  I must act impartially, dispassionately and fearlessly.  I must not let sympathy or emotion sway my judgment.  As the sole judge of the facts, I must not act capriciously or irrationally.

22. I am obliged to determine in all relevant issues of fact according to the evidence that has been presented during the course of the trial.  That evidence includes the oral evidence of the various witnesses called and the various exhibits including the statements of numerous witnesses not called to give oral evidence tendered either in the Crown or the defence case.

23. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness.  I may, if I think fit, accept part and reject part of the same witness’ evidence.

24. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence.  Inferences may be valid or invalid, justified or unjustified, correct or incorrect.  I may only draw an inference from proven facts if such inference is the only reasonable inference that can properly be drawn from the proven facts.

25. I now direct myself in relation to the onus of proof.  This is a very important direction.  This is a criminal trial of a most serious nature and the burden of proof of the guilt of the accused is placed upon the Crown.  That onus rests upon the Crown in respect of every element of the charge.  There is no onus of proof on the accused at all.  It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt.

26. I warn myself that suspicion is no substitute for proof beyond reasonable doubt.  It is, and has always been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.  Unless the Crown succeeds in proving each and every one of the essential elements of the charges beyond reasonable doubt then the accused must be found not guilty of the charges.

27. The words ‘beyond reasonable doubt’ are ordinary everyday words and that is how I understand them.  If at the end of my deliberations having taken into consideration the evidence for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of the essential matters beyond reasonable doubt, that it is my duty to bring in a verdict of not guilty because the Crown will have failed to do what the law requires it to do.

28. I remind myself that it is vitally important that I clearly understand that the accused must be found not guilty if his guilt has not been proven to my satisfaction beyond reasonable doubt.

29. It follows from this of course that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter the accused is entitled to the benefit of that doubt and I must find him not guilty.

The accused gave a police record of interview

30. On 19 July 2016 the accused participated in a record of interview with police (Exhibit C). The accused denied the allegations. 

31. I direct myself that if I accept the account relied upon by the accused in his interview with police then I must find him not guilty. If I find it difficult to accept the account relied upon by the accused in his interview with police, but I think it might be true, then I must find him not guilty. If I do not believe the accused's account relied upon in his record of interview with police, then I should put it to one side. 

32. Nevertheless, the question remains whether the Crown upon the basis of the evidence that I do accept has proved the guilt of the accused beyond reasonable doubt.

The accused did not give evidence in the trial

33. The accused has not given any evidence in the trial in response to the Crown’s case. There are a number of important directions of law in relation to that fact. I remind myself that although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so.

34. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of each of the offences charged. The accused bears no onus of proof in respect of any fact that is in dispute.

35. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore it follows that the accused is entitled to say nothing in the trial and make the Crown prove his guilt to the high standard required.

36. I direct myself as a matter of law that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. 

37. 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 I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.

Complaint evidence

38. The Crown relies upon what the complainant said to G at Dalmeny and also to C about the alleged sexual assault by the accused upon her as evidence that such an assault occurred.

39. It is for me to decide whether any complaint was made and what its contents were. If I find that any complaint was made substantially to the effect that the complainant was sexually assaulted by the accused, then I can use evidence of what was said in the complaint as some evidence that such an assault did occur.

40. The law says that because of the circumstances in which the complaint was made I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against the accused.  I am entitled to find that the complaint was made at a time and in a manner that would indicate the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate.

41. It is a matter for me whether I draw that conclusion in this case and so treat the complaint as evidence of the alleged sexual assault by the accused, in addition to the evidence that has been given about it in the trial.  If I do use it as some evidence of the assault, that is the subject of the charges, then what weight I give it is again a matter for me.

42. Secondly, the Crown asserts that the evidence of complaint has also another purpose.  The Crown contends that the fact that the complainant raised the allegations against the accused at the time and in the manner she did would lead me to accept her evidence.  In other words, it makes her evidence more believable than if she had not raised the allegation as she did.

43. Again, it is for me to decide whether the complaint was made. But if I am satisfied it was, then the question I should ask myself is did the complainant act in the way I would expect her to act if she had been assaulted as she said she was?  Is what she did the sort of conduct I would expect of a person who had been assaulted in that way?  If I think that the complainant has done what I would expect someone in her position to do, that may support the Crown case because I may find there is a consistency between the complainant’s conduct and the allegation she makes against the accused.

44. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as she described then that may indicate the allegation is false.  Of course, 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 occasion.

The differences in the complainant’s account

45. The defence case is that there were differences and inconsistencies between the various complaints by the complainant concerning the alleged conduct of the accused which would mean that I would not be satisfied beyond reasonable doubt that the Crown has established its case.

46. It was submitted by Mr King on behalf of the accused that there were differences between the various complaints made by the complainant to G, J and her handwritten notes and statement to police.

47. I direct myself that experience shows that people may not remember all the details of an event, including a sexual offence, in the same way each time they recount that sexual offence.  Trauma may affect people differently and may affect how they recall events and sometimes there are differences in an account of a sexual offence and both truthful and untruthful accounts of an event including a sexual offence may contain differences.  In this regard, a difference in account of a sexual offence includes a gap in the account and/or an inconsistency in the account and/or a difference between the account and another account.

48. It follows that any difference I find in the accounts given by the complainant does not necessarily mean that I should reject the evidence of the complainant.  It is a matter for me as the judge of the facts to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability.  In making that assessment, I should take into account the evidence of the complainant when she was asked about those differences.

Use of CCTV by the complainant and AVL link by G

49. The complainant gave her evidence by way of CCTV and G gave his evidence via audio visual link.  Each witness was entitled as a matter of law to give their evidence in that way.  I remind myself that I must not draw any adverse inference against the accused because each witness gave their evidence in that way.  Also, I must not give their evidence any greater or lesser weight because of the manner in which it was given.  I must assess their evidence in the very same way I would have if they had given their evidence in Court.

Separate counts

50. I direct myself that I need to consider each count separately and that separate verdicts will be required for each count, however if I have a reasonable doubt about the truth, accuracy, and reliability of the complainant in respect of one count on the indictment, then I should take that fact into account in determining whether I am satisfied about the remaining counts beyond reasonable doubt.

Context evidence

51. Context evidence has been led in the Crown case, namely evidence of other alleged sexual conduct by the accused towards the complainant. 

52. I remind myself that I must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged.  Also, I must not reason that just because the accused may have done something wrong to the complainant on some other occasion he must have done so on the occasion alleged in the indictment.

The evidence of C

53. C gave evidence during the trial that in relation to the allegation, she knew the accused “wouldn’t do something like that” [T 88.3 23/2/21] and further she gave evidence, “I know in my heart he didn’t do anything” [T 88.33 23/2/21]. 

54. Mr King, on behalf of the accused, does not rely upon this evidence as good character evidence relevant to the likelihood of the accused having committed the offences.

The limited relevance of the evidence concerning allegations made by the accused granddaughters.

55. Evidence has been led in the trial relating to allegations made against the accused by two of his granddaughters, E and K. 

56. This evidence was led for a very limited purpose, namely to establish a motive for J and G to be untruthful in circumstances where K is J’s daughter and G is the uncle of each granddaughter. 

57. I direct myself that I am only to rely upon this evidence for that very limited purpose.  I remind myself that I must not use this evidence of other allegations as establishing a tendency on the part of the accused to commit the offences of the type charged.

Delay

58. I remind myself of the following warning relating to the issue of delay in complaint being made by the complainant to police.  It is most important that as the tribunal of fact I appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt.

58. In this regard, I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution.  Firstly, there is the possibility of distortion in human recollection because of the passage of time.  Secondly, I should give consideration to the age of the complainant at the time, namely 14 or 15 years.  Thirdly, I should also give consideration to the absence of witnesses that may have otherwise been available to give evidence.  Here, such a witness is H.

59. These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or bringing forward evidence himself to establish a reasonable doubt about his guilt or both.  The delay means that evidence relied upon by the Crown cannot be as fully tested as otherwise might have been.  Had the allegations been brought to light and the prosecution commenced much sooner it would be expected that the complainant’s memory for details would have been clearer.  This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify or disprove it. 

60. The complainant’s inability to recall precise details of the circumstances surrounding the incident makes it difficult for the accused to throw doubt on her evidence by pointing to circumstances which may contradict her.  Had the accused learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainant.

61. Another aspect of the accused’s disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case or both.  He may have been able to recall with some precision what he was doing and where he was at the particular time on the particular date and had been able to bring forward evidence to support him.

62. I should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from H in relation to the alleged complaint at Dalmeny.

63. Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence.  As a result, I warn myself that before I convict the accused I must give the prosecution case the most careful scrutiny.  In carrying out that scrutiny I must bear in mind the matters I have just been speaking about, the fact that the complainant’s evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it or support his defence.

Elements of the offences

65. In relation to Counts 1 and 3, the Crown must prove beyond reasonable doubt that:

1. The accused had sexual intercourse with the complainant;

2. Without the consent of the complainant;

3. Knowing that the complainant has not consented;

4. That the complainant was under the age of 16 years, namely 15 years; and

5. That at the time the complainant was under the authority of the accused by reason of the accused being the father of her boyfriend.

66. In relation to the alternative Counts 2 and 4, the Crown must prove beyond reasonable doubt that:

1. The accused had sexual intercourse with the complainant;

2. Without the consent of the complainant;

3. Knowing that the complainant had not consented; and

4. That the complainant was under the age of 16 years, namely 15 years.

67. Sexual intercourse relevantly includes sexual connection occasioned by the penetration of the vagina of any person by any part of the body of another person.

Consent

68. It is for the Crown to prove beyond reasonable doubt that the complainant did not consent. 

69. Consent involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused.  Consent can be given verbally or expressed by actions. 

70. Similarly, absence of consent does not have to be in words.  It also may be communicated in other ways such as offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not by reason only of that fact to be regarded as consenting to the sexual intercourse.

Knowledge

71. The Crown must prove beyond reasonable doubt that the accused knew that the complainant did not consent. 

72. The Crown asked that I infer or conclude from other facts which it has set out to prove that the accused must have known and that he did indeed know that the complainant did not consent.  In a situation where the complainant does not in fact consent, the accused’s state of mind at the time of the act of intercourse might be that he actually knew that the complainant was not consenting.  That is a guilty state of mind. 

73. If the Crown satisfies me beyond reasonable doubt that that was the state of mind of the accused at the time of the act of intercourse, then the third element of each charge has been made out.

The age of the complainant

74. The Crown must prove that the complainant was under 16 years of age at the time.  There is no dispute in the trial that during the period alleged in each count the complainant would have been either 14 or 15 years of age.

Under authority

75. In relation to Counts 1 and 3, the Crown must prove that the complainant was in the care or under the supervision or authority of the accused (see s 61A(5), Crimes Act as enacted during the relevant period).

The evidence of T

76. The complainant is now 45 years old, having been born in 1975. 

77. As at 1990/91 she was 14 or 15 years old.  She was living with her parents. 

78. She came to know the accused in circumstances where her older sister J began a relationship with the accused’s son, C.  At that stage the accused and his family were living at XX.  XX is a small village approximately 20 minutes drive west of Wagga Wagga.  The accused and his family lived in a converted service station.

79. The complainant met the accused’s son, G, at a family event sometime before G’s 18^th birthday in April 1990.  At this stage, the complainant was 14 years old, turning 15 in May 1990. 

80. On or about 12 April 1990 the complainant was invited to G’s 18^th birthday party.  She began a relationship with G at his 18^th birthday party.  She stayed over at his home after the party.

81. The second occasion she stayed over at the family home was about a month after G’s 18^th birthday party.  When she stayed over at G’s house she was not allowed to sleep together with G. The arrangement was that she would sleep in G’s room and he would sleep on a mattress in the lounge room.  The layout of the house at XX is shown in Exhibit A.  The accused and his wife C’s bedroom was opposite G’s bedroom.

82. On the second occasion when she stayed at G’s house in his bedroom, the complainant gave evidence that after getting into bed she started to doze off then she heard what she assumed was the accused leaving his bedroom and walking along the hallway before returning to his bedroom.

83. She then gave evidence that she started dozing off again and was almost asleep when she felt a hand on her shoulder.  She was then rolled onto her back and saw that it was the accused.  She then gave the following evidence:

“He put his hand over my mouth and then - sorry - he said don’t - something along the lines of ‘don’t make a noise or I’ll hurt you’ and then he - with his hand on my mouth he put his other hand under the blankets.  I’m not sure if he put the blankets off me or just put his hand under the blankets and then he put his hand in - I can’t remember whether he pulled my pants down or just had his hand in my pants and then he began to put his fingers inside my vagina really hard and I don’t know how long it went on for but it hurt and I just froze.  I was crying but I couldn’t move.”  [T 13.10 – 13.17 22/2/21]

84. She described that whilst the accused’s fingers were in her vagina it was “hard and it was very painful” [T 14.21 22/2/21].  She described that the accused had his thumb under her chin and during her evidence she demonstrated the position of his thumb.  She described that the pressure on her mouth was “quite firm” [T 13.49 22/2/21] and was pushing her into the pillow.

85. She gave evidence she was shocked, she did not know what was going on and was crying.  She also remembered that the rain on the roof was so loud by this stage.  She said “I couldn’t move, I froze” [T 14.5 22/2/21].

86. She gave evidence that when the accused first put his fingers in her vagina, “He told me not to move and I can’t remember exactly but basically he would hurt me and I remember thinking to myself, this hurts so much already what else can he do” [T 14.34 – 14.36 22/2/21].

87. The complainant gave evidence that the next thing that happened was that the accused reached across and pulled a pillow over her face.  She was not able to breathe.  She recalled crying so much that tears ran into her ears.  She also remembered the weight of the pillow on her face [T 14.46 – 15.4 22/2/21].

88. She then gave evidence that the following occurred, “He climbed on top of me and that’s when he put his penis in my vagina and then just started thrusting so hard” [T 15.8 – 15.9 22/2/21].  She described that he said something similar to, “Don’t say anything to [G] because if you do I’m going to tell him it was your idea” [T 15.13 – 15.14 22/2/21].

89. The complainant said the sexual intercourse continued until the accused ejaculated.  As that was happening the accused said to her, “No wonder my son likes you, you’re good at this” [T 15.21 22/2/21].

90. The complainant then went to the laundry/toilet area to clean herself.  She described that she vomited in the toilet before scrubbing her vagina and legs.  She gave the following evidence, “I wanted to make myself clean even though it was hurting, I just couldn’t stop cleaning myself” [T 15.39 – 15.40 22/2/21].

91. She then came out and spoke to G.  Initially, she told him she had a bad dream.  She explained that the reason why she said that was because she “just didn’t know what else to say, I was in shock of what had just happened” [T 16.19 22/2/21].

92. After G’s mother C insisted that she go to bed she told G “roughly” [T 16.24 22/2/21] what happened.  G told his mother that the accused had been in the room and “done stuff to her” [T 16.27 22/2/21].  C said, “Stop making up lies” [T 16.28 22/2/21] and told her to go to her room.

93. The complainant returned to G’s room where she stayed awake until the following morning.  She got up early the next morning and told G to take her home.  She gave evidence that she did not discuss the matter with G.  She said, “The first person that I had told and then he told his mother who didn’t believe me so I thought who is going to believe me so I didn’t bring it up again with him” [T 16.43 – 16.45 22/2/21].  She did not tell her parents because they had issues with drinking and were “not the type of parents you would go to with an issue” [T 16.49 – 16.50 22/2/21].

94. The complainant was asked whether she spoke to anybody else other than G about what had happened.  She gave the following evidence in relation to a conversation that occurred whilst she was on a family holiday with the accused and other family members at Dalmeny:

“[G] and I were arguing and we went into the bedroom and I just said ‘I just can’t handle this anymore, I can’t be around him, I shouldn’t have come on the holiday’ and I yelled out at the top of my voice ‘[MC] is a rapist and all you guys need to know this” [T 18.8 – 18.12 22/2/21].

95. She indicated in evidence she was concerned for other young female family members.

96. After the holiday to Dalmeny, the complainant gave evidence that she also spoke to her sister J about what had happened.  Her sister was living in her parent’s garage.  She could not remember when this was or the detail of what she has said to her sister. 

97. She made a police statement on 17 December 2013 after being contacted by police.  At or about that same time she made detailed notes of the alleged conduct of the accused.  Those detailed notes were marked MFI 2 in the trial.

98. In cross-examination the complainant was asked whether she had spoken to her sister J about what she alleged happened to her since her first complaint to her.  The complainant denied that she had done so, indicating that she tries not to talk about the events.

99. She was asked whether her sister had reminded her of what she had said during the complaint.  She denied this.  She gave the following evidence, “I don’t like to talk about what happened to me, it’s not something that I want to bring up in conversation with anybody, even my sister” [T 24.42 – 24.44 22/2/21].

100. She was asked whether she had ever told anyone else excluding G, her sister, and the comment during the family holiday in Dalmeny.  She said, “Not that I can recall, no” [T 26.12 22/2/21] and “it’s not something I like to talk about” [T 26.1 22/2/21].

101. In relation to the conversation with her sister she was asked what she told her.  She said:

“I don’t remember the exact conversation…I just remember me telling her that something had happened between [MC] and I, that he had raped me. I don’t remember the exact words or how the conversation went but, yes, she just said he’s a creepy old man” [T 27.44 – 27.47 22/2/21].

102. She confirmed that she then told no one until speaking with police in 2013.  She took her notes (MFI 2) with her when she went to police.  She gave evidence she would have told police about telling her sister J.  She said that she did not know her sister had made a police statement but assumed she had because she was aware that she was travelling to Wagga Wagga to give evidence.  She denied ever seeing her sister’s police statement.

103. She was asked in cross-examination about whether there were other occasions she stayed at the accused’s house after the alleged incident.  She agreed there were a few times that she stayed at the house after she had moved in with G and on those occasions she slept in the same bedroom as G [T 32.41 – 32.43 22/2/21].

104. After the alleged incident she agreed that she would have been in the toilet for quite a while.  She was asked whether she was noisy and she said, “Perhaps yes” [T 33.37 22/2/21].  She was asked in cross-examination about what she told G after coming out of the toilet.  She gave evidence she could not remember exactly what she told him, but she may have used the word “rape” but was not sure [T 34.17 22/2/21]. She said she can’t exactly remember, she was emotional, upset and “can’t remember detail word for word” [T 34.43 – 34.44 22/2/21].

105. The complainant was then cross-examined about what she had recorded in the notes she had made when contacted by police in 2013 concerning what she had told G.  In the notes she had recorded “I finally got myself together to talk to G, I told him his dad had just come into my room and raped me and I could not sleep down there in a room with him so close” [T 35.19 – 35.21 22/2/21].

106. She was then asked in cross-examination:

“Q.  Those were the words that you used in 2013?

A.  Okay, yes.

Q.  Now you are not so sure, is that right?

A.  No, no, like I said details of what actually happened are ingrained in the mind and I have put this out of my mind for so long and then I had to bring it back up and it may not have been those exact words but it was something along the lines of that, yes”. [T 35.24 – 35.31 22/2/21]

107. In the notes she had then recorded the following:

“[G] didn’t get cranky or anything, he just asked if I was okay, I told him no, your father just raped me, and started crying again” [T 35.37 – 35.39 22/2/21].

108. In the complainant’s notes she recorded that G had said to C “[MC] had raped me” [T 36.26 22/2/21].  She agreed in cross-examination that she had never told G that the accused had touched her breasts [T 37.44 22/2/21] and that the accused had not grabbed her on the breasts on the night of the alleged offending [T 45.11 22/2/21].

109. She was then cross-examined about the contents of her police statement made on 17 December 2013 which stated as follows:

“[G] did not say anything.  I got a bit cranky because [G] didn’t say anything or ask me what happened.  I said ‘your dad came into my room and raped me’.  I do not know if I said the actual words ‘he raped me’ but I told him what [MC] had just done to me” [T 39.1 – 39.7 22/2/21].

110. The complainant agreed that that is what she had told the police officer that she had said to G.

111. She agreed in cross-examination that C had said to her, “If you don’t stop this nonsense [G] will put you in the car and take you home” [T 40.4 – 40.5 22/2/21]. 

112. She gave the following evidence:

“Yes, she did and then it was afterwards when she said ‘go to bed’ and then she said ‘come on, I’m going to bed now too’ and that’s when I felt a little more comfortable to go down that end of the house, knowing that she was going to be there” [T 40.6 – 40.9 22/2/21].

113. The complainant agreed in cross-examination that there was nothing stopping her from going home after the alleged offending.  She also agreed she made no complaint to her parents, to her school, or to police.

114. She was cross-examined about the events during the Dalmeny holiday.  She gave evidence that she told G she was uncomfortable with the accused rubbing her “and that kind of stuff” [T 42.18 22/2/21] and shouted out that MC was a rapist.  She said she was concerned about her young nieces.  She said no one responded to what she said.

115. The complainant agreed that she had not told police in her 2013 police statement that she had complained to her sister J.  She did not know why she had not told police about the complaint to her sister.

The evidence of C

116. C is the wife of the accused.  She has been married to him for 55 years.  She gave the following evidence.

117. She lived with the accused at XX between 1985 and 2002, a period of 17 years.  They have four sons.  She was unsure which of her four sons were living at home in the period 1990 to 1991.  She agreed her son G was 18 years old in April 1990.  She was unable to recall whether her son had an 18^th birthday party.  She confirmed that the complainant was in a relationship with her son G.  She thought he was 17 years old and the complainant was possibly 15 years old.  She did not know how long they were in a relationship but thought it was one to two years.

118. She was asked whether she recalled any occasion when the complainant stayed with G at their house in XX.  She recalled one occasion when the complainant came to stay at her house because her parents had told her to “get out”.  She rang and spoke to the complainant’s mother to tell her that the complainant was alright.  Her mother said the complainant could go home so G drove her home.  Once they arrived at the complainant’s home they saw her belongings on the footpath so G brought her back to their house to stay the night.  She gave evidence that the complainant slept in G’s room and G slept in the lounge room on a mattress on the floor.

119. She told the Court that the rule was that G was not allowed to sleep with the complainant.  This was a rule that applied to all C’s sons.  She gave evidence that on this occasion that the complainant stayed over she did not say anything about the accused and G did not say anything about the complainant telling him something.

120. She was asked whether she recalled a time when the complainant made an allegation about the accused sexually interfering with her.  She gave evidence that whilst they were on a family holiday in Dalmeny in the summer of 1991 the complainant had been playing a game with the accused and C’s mother, H. 

121. At some stage, the accused said he did not want to play and C gave the following evidence in relation to what occurred:

“[T] and my husband and my mother were sitting around the table playing a game of some sort, I don’t know what, and he said that he didn’t want to play anymore and she just jumped up and ran up to the bedroom and she was yelling, ‘He sexually assaulted me’ and my mother just said, ‘Don’t be so silly he didn’t do anything of the sort’.” [T 75.34 – 75.38 23/2/21]

122. C said she did not know where G was when that was said.

123. The Crown was granted leave pursuant to s 38, Evidence Act1995 (NSW) to cross-examine C.

124. During cross-examination, C conceded that it is possible that the complainant could have stayed over on other occasions that she does not remember.

125. In relation to the disclosure at Dalmeny, C described that “in a fit of temper she did” make an allegation of sexual assault [T 84.28 23/2/21].

126. It was suggested to C in cross-examination that on an occasion when the complainant had stayed over, G had said to her, “She’s here because dad did something to her” [T 86.21 – 86.22 23/2/21] and that C replied, “Stop making up lies and go to bed” [T 86.37 – 86.38 23/2/21].  C denied that each of those conversations had occurred.  She said, “If [G] had said something to me like that I would remember. I would have done something about it there and then” [T 86.37 – 86.38 23/2/21].

127. She agreed in cross-examination by the Crown that she had not done anything when the allegation had been made in Dalmeny.  She understood at the time from what the complainant was saying that she was accusing the accused of sexually assaulting her.  She said, “Nobody took her seriously” [T 87.36 – 87.37 23/2/21].

128. In cross-examination on behalf of the accused, C agreed that when the allegation was made at Dalmeny, she thought the complainant was alleging the accused had done something “there and then” [T 91.2 23/2/21].

129. She was asked whether it was possible that on an occasion when the complainant stayed over at XX that G had said to her, “[T] has just said that dad touched her on the breasts” [T 93.1 – 93.2 23/2/21].  She denied that that had occurred.  She agreed that it was not possible [T 93.9 23/2/21].

The evidence of J

130. J is the complainant’s older sister.  She is married to CC, the accused’s son. 

131. She gave evidence that she first became aware of the complainant’s allegation concerning the accused in November/December 1991 or January 1992.  She was heavily pregnant with her second child.  He was born in March 1992.  At that stage she was living in a shed attached to her parent’s home.

132. She gave evidence that the complainant had been on a family holiday down the coast and when she returned she told her they needed to talk.  She said the complainant told her MC had raped her.  She did not believe her and asked her why she was causing trouble.  She explained that at this time they were not getting along.

133. J gave evidence that the complainant started crying and told her:

“She said that [MC] had raped her out at XX.  She came out to [G] who was in the lounge room at that stage.  [C] was in bed and she said she run out to [G] in the lounge room at XX, that she was upset.  She hadn’t at that stage told him what happened.  [C] came out and said ‘you’re not sleeping out here, get back to [G]’s room’.  They weren’t allowed to sleep in the same room [G] said.  She told me then that [G] had told [C] that she’s upset and she said ‘I don’t care, get to bed’.  [T] said she got up.  She didn’t go to bed, she went to the bathroom and couldn’t stop scrubbing herself” [T 99.3 – 99.11 23/2/21].

134. J said that she had made a police statement in 2017 concerning the complaint made by the complainant. 

135. In cross-examination, she gave evidence that the police had approached her in 2011 about another matter involving the accused, that is, in relation to her daughter K.  She asked the police to contact the complainant. 

136. She said that in 1991/1992 when her sister complained to her she did not believe her because she didn’t have a good relationship with the complainant.  She said, “I did not like her and she did not like me and we both liked to cause trouble for each other” [T 102.34 – 102.35 23/2/21].

137. She gave evidence that she reconnected with her sister about 12 months ago in 2020 and they have remained in contact.  She had no contact with the complainant prior to 2020.  She did not know where she lived.  She said they had been told not to talk about court. 

138. She had last spoken to the complainant on Sunday, that is two days before giving evidence.  She said, “Nothing was said about the case, she was upset and I said it’s okay, just tell the truth” [T 100.45 – 100.46 1/6/21].

The evidence of G

139. G gave evidence that he had previously been in a relationship with the complainant.  The relationship had begun in 1989.  He thought the complainant was 17 years old.  I note that the complainant would have been 13 turning 14 in 1989.

140. At the time, he was living with his parents at XX.  He gave evidence that the complainant had stayed at his house.  She slept in his bed and he slept in the lounge room.

141. He recalled an occasion when the complainant stayed in 1990/1991 when she came into the lounge room about half an hour after she had gone to bed.  He was lying on a bean bag watching TV and C was ironing.

142. He gave evidence that the complainant leant down next to him and whispered “she’d been touched on her breast” [T 111.45 23/2/21].  She said it was his father.  He did not recall what he said to the complainant.  He described her as “a little bit upset” [T 112.45 23/2/21].  He thought she may have had tears.  He thought the complainant repeated what she had said to him to his mother.  His mother then told the complainant “don’t be silly…go back to bed” [T 112.47 23/2/21].  He thought this was the only night the complainant had stayed.  He did not discuss it with the complainant after that evening.

143. In relation to the family holiday to Dalmeny, he gave evidence that he was there with the complainant and other family members including the accused.  He was asked whether the complainant said anything about his father during the holiday at Dalmeny.  He said “no” [T 119.39 23/2/21]. He gave evidence that he had been estranged from his parents for 10 or 11 years. 

144. The Crown was granted leave to cross-examine the witness G pursuant to s 38, Evidence Act.  It was suggested to him that the complainant had said that she had been raped.  He denied that.  It was further suggested that he said to his mother, “She’s here because dad did something to her” [T 118.9 23/2/21].  He said in evidence, “I just told her what she said, I just repeated it” [T 118.14 23/2/21].

145. He agreed he was first asked about the conversation with the complainant in 2013, that is 22 or 23 years after the alleged incident.  He said the conversation stood out because it was unusual.  It was suggested to him that during the Dalmeny holiday the complainant had yelled out “[MC] is a rapist and everyone needs to know that” [T 122.43 23/2/21].  He said he did not remember that [T 122.44 23/2/21].

146. In cross-examination on behalf of the accused, G agreed that the estrangement from his parents was a consequence of his father being charged with offences concerning his niece, E, in December 2013.  He said in cross-examination that when he spoke to police in 2013 with respect to his niece, E, he raised with police that he recalled an incident with the complainant.

147. He agreed that in his police statement he told police the following:

“I asked her what happened and she told me that he had come into her room and sat on the end of the bed to say goodnight and grabbed her on the breast” [T 125.44 – 125.26 23/2/21]. 

148. He further agreed that in his police statement he had recorded:

“Even though this was such a long time ago, that memory of what [T] has said and my mum’s reaction is still clear in my mind” [T 126.20 – 126.23 23/2/21].

The evidence of Detective Senior Constable Noye

149. A statement of Detective Senior Constable Noye was tendered in the trial (Exhibit D).  Detective Senior Constable Noye arrested the accused on 19 July 2016.  The accused was cautioned.  He replied “yes this is bullshit, do I need a lawyer”.  He participated in a record of interview with police later that same day.

150. During the record of interview the accused told police that he knew the complainant because she was going out with his son.  At this time he lived on the Sturt Highway at XX.  He told police that the complainant stayed over “numerous times” and slept with G (Answer 43 and 44).

151. He was asked whether he ever recalled patting the complainant on the backside.  He told police, “I did it to everybody mucking around like that” (Answer 108).  He also admitted probably kissing the complainant on her lips.  He told police, “Like her sisters, my daughters-in-law, they all kiss on the lips” (Answer 109).

152. He was asked about the incident at Dalmeny.  He told police:

“She accused me of doing something I didn’t do and my mother-in-law was alive then, my mother-in-law said ‘no he didn’t do it’, she just made something up to get me in trouble” (Answer 118).

153. The accused told police:

“It was something stupid and she just started an argument, went to [G] and told [G] I’d done something which I didn’t do, to get us fighting” (Answer 131).

154. Police outlined the allegations of the complainant to the accused during the interview.  He denied the alleged offending.  He told police, “I deny the lot of it, it’s all made up” (Answer 187).

155. During the interview the accused prepared a plan of the house (Exhibit F).

The evidence of Tanya Louise Madden

156. The statement of Ms Madden was tendered in the trial (Exhibit E).  Ms Madden is the Deputy Principal of the High School T attended. 

157. The school records disclose that the complainant was enrolled in Year 7 on 2 February 1988.  Her enrolment ceased on 10 March 1992 when she was in Year 11.

Crown closing address

158. The Crown submitted that the Court would accept beyond reasonable doubt the truthfulness, accuracy and reliability of the complainant.  The Crown conceded a level of inconsistency in the evidence but submitted it related to surrounding events and was not unexpected given the passage of time.  It was submitted there were not irreconcilable conflicts in the evidence.

159. The Crown submitted that the complainant was an impressive witness.  She was able to give a detailed version of the events.  She also recounted thought processes during the alleged offending and also recounted conversations with the accused which the Crown submitted lends cogency to her version of events.

160. The Crown submitted that the complainant also made a number of concessions.  For example, she agreed that the logical thing to do after the alleged offending would have been to leave the house, which she did not do.  She explained in evidence that she felt comfortable once C was down the same end of the house as her.

161. The Crown submitted that her recount of the conversations between herself and the accused at the time of the alleged offending are also consistent with a truthful recall of events, rather than a fabricated version.  Specifically, the Crown relied upon the following words, “don’t make a noise or I’ll hurt you” [T 13.11 22/2/21], “don’t say anything to [G] because if you do I’m going to tell him it was your idea” [T 15.13 22/2/21], and “no wonder my son likes you, you’re good at this” [T 15.21 22/2/21].

162. Despite the passage of time the Crown submitted that the Court would accept the evidence of the complainant in relation to when she began the relationship with G, given that it was on his 18^th birthday party in April 1990, and her evidence that the alleged offending occurred within a month after that date.

163. In relation to the timing of the holiday in Dalmeny, the Crown submitted that the Court would likely find it occurred in late 1991 or early 1992, having regard to the evidence of J.  She told the Court she was heavily pregnant at the time so could not attend the family holiday and that her son was born in March 1992.

164. In relation to the complaint evidence, the Crown submitted as follows.  In relation to the complaint to G, the Crown conceded there is obvious inconsistency in relation to his version of the alleged complaint in that he asserts the complainant complained of being touched on the breast rather than being raped.  The Crown submitted that G is mistaken as to his recollection of this conversation.  The Crown submitted it is clear from his evidence that the complainant did make a complaint and was in a state of upset.

165. In relation to the complaint made during the Dalmeny holiday, the Crown submitted that the Court would accept that the Dalmeny complaint occurred in circumstances where both C and the accused agreed that the complainant did make a complaint of a sexual allegation at that stage.

166. The Crown submitted that the most compelling complaint is to J in late 1991 or early 1992.  The Crown submitted that the Court would accept the evidence of J because of the detail she provided of the complaint made.  The Crown submitted it was not controversial that the complainant and J were not getting along at the time of the complaint and remained estranged until at least 2018 according to the complainant’s evidence, or 2020 according to J.  Importantly, the Crown submitted that either date was after J had made her police statement in 2017.

167. The Crown submitted that I would accept the evidence of the complainant beyond reasonable doubt and reject the denials made by the accused in his record of interview with police.  The Crown submitted that if I do accept the evidence of the complainant beyond reasonable doubt then the Court would accept that the accused had sexual intercourse with the complainant in the manner alleged.

168. Further, the Crown submitted that the Court would be satisfied that it was without the consent of the complainant and that the accused had actual knowledge of the absence of consent, having regard to the nature of the relationship between the accused and the complainant, that is, the complainant was 15 years old and was the girlfriend of the son of the accused, that there was no discussion beforehand in relation to the sexual intercourse, and that the sexual intercourse was forceful and the accused made threats to her at that time.

169. In relation to establishing that the complainant was “under the authority” of the accused in relation to Counts 1 and 3, the Crown conceded that the state of the evidence is that it was C who set the rules in respect of the complainant and that the only evidence of the accused exercising authority over the complainant is inferred from all the surrounding circumstances.  I assume that is a reference to her age and the circumstance in which she was staying at the accused’s house.

Defence closing address

170. It was submitted on behalf of the accused that in relation to Counts 1 and 3 the Crown could not establish beyond reasonable doubt that the complainant was “under the authority” of the accused.  It was submitted that there was no direct evidence of supervision by the accused and that the evidence established that any supervisory role was carried out by C.

171. In relation to the alternative Counts 2 and 4, it was submitted that there was only one witness in the Crown case and no independent evidence.  It was further submitted that the Court would need to be mindful that the complainant is giving evidence 29 years after the alleged events occurred.  Further, she is giving evidence as a mature adult which may make the evidence more believable.  Also, the Court should be mindful of distortion of memory in circumstances where the Court is relying upon the complainant’s recollection.

172. It was submitted on behalf of the accused that even if the Court found that the complainant was an impressive witness, impressive witnesses are not always reliable witnesses. 

173. In relation to the evidence of the complainant, it was submitted that the Court would take into account the following matters in assessing her reliability: 

1. That it was not until 2013 that she recorded in the police statement what had happened, a period of 23 years since the alleged events. 

2. That the offence occurred when C and G were present in the house which renders the events less likely. 

3. That the complainant did not shout out during the commission of the alleged offences. 

4. That the complainant did not ask to be taken home, notwithstanding that C indicated that G would take her home. 

5. That it is illogical that she felt comfortable staying in the house once C went to bed, even though on her account she had been violently sexually assaulted. 

6. That on one view relying upon the evidence of G no immediate complaint was made.

174. It was conceded on behalf of the accused that the Court might well prefer the evidence of G and the complainant to that of C concerning a complaint being made immediately after the alleged offending.  It was submitted however, that even if the Court preferred the evidence of G and the complainant, there was still an issue as to what the initial complaint was.

175. It was submitted that if the Court accepts there is a reasonable possibility that there was a complaint made as recounted by G, that is, that the accused had touched the complainant’s breasts, then there would be a reasonable doubt about the complainant’s version of the events in circumstances where the complainant has repeatedly given a version that she told G immediately after the alleged offending that his father had raped her.  It was submitted on behalf of the accused that this inconsistency in the immediate complaint is a fact that is central to the allegations.

176. In relation to the complaint allegedly made by the complainant during the family holiday to Dalmeny, it was submitted on behalf of the accused that there are very different versions of those events.  Firstly, G has no recollection of any complaint at Dalmeny.  Secondly, the complainant indicated that she was arguing with G when she called out “[MC] is a rapist” [T 18.11 22/2/21].  Thirdly, C indicates that the complainant was playing a game with the accused and her mother when she jumped up and said “he sexually assaulted me” [T 75.37 23/2/21].

177. It was submitted that there is a significant forensic disadvantage to the accused because his mother-in-law, H, is now deceased and unavailable to give evidence.  It was submitted that if the Court finds that C’s version is a reasonable possibility then this undermines the reliability of the evidence of the complainant.

178. In relation to the complaint by the complainant to J, it was submitted on behalf of the accused that the complainant had not disclosed to police in her police statement that she had complained to her sister.  She gave evidence that she did not know why she did not mention it to police. 

179. It was submitted on behalf of the accused that it was highly suspicious that there had been collusion between J and the complainant despite their evidence to the contrary, in circumstances where it was submitted it was highly improbable that J would give such a detailed version of the complaint 25 years after the conversation, in circumstances where she did not believe the complainant at the time the complaint was made. 

180. It was submitted that one might expect J’s memory to fade if the complaint had been rejected.

181. Ultimately, it was submitted that the Crown case relies on one witness who has said different things to different people over the years and in those circumstances the Court would not be satisfied beyond reasonable doubt of each offence.

Consideration

Assessment of the credibility of the complainant

182. I am satisfied that throughout the complainant’s evidence she was making every effort to provide a full and frank account of the alleged offending. 

183. She gave cogent evidence and she presented as genuine in her account.  At times during her evidence she became emotional, consistent with someone who was recounting events that actually happened.  

184. She gave a very detailed account of the alleged offending.  The account included not only the physical acts that constituted the alleged offending but also her thoughts at the time and other contextual facts.  For example, she gave evidence that when the accused had his fingers in her vagina and after he told her not to move and that he would hurt her that she remembered thinking to herself “this hurts so much already what else can he do” [T 14.35 – 14.36 22/2/21].

182. She also described her reaction after the commission of the first alleged offence in the following way, “I was shocked. I didn’t know what was going on. I was dozing off and woke to that and I was crying and I can just remember the rain on the roof was so loud at this stage and I was just crying. I couldn’t move, I froze” [T 14.3 – 14.5 22/2/21].  This reaction is what might reasonably be expected if the complainant had been sexually assaulted as she alleges.

183. In relation to the detail provided in her account, the complainant gave the following evidence, “Something like that is always engraved” [T 34.26 22/2/21].  She continued, “It was something that happens to you that awful is particular things stay in the mind so things that you don’t want to happen to you physically you remember certain details and perhaps not a date or a time but particular details stay in the mind and still do to this day” [T 34.37 – 34.40 22/2/21].

184. The complainant also gave evidence of matters that whilst not directly related to the sexual acts, are in my view highly supportive of the truthfulness of her account.  Two examples are as follows.  Firstly, the complainant gave evidence that at the time of the alleged offending she was crying so much that the tears were filling up in her ears.  Secondly, she also gave evidence that when the offender had his hand over her mouth his thumb was underneath her jawline pressing underneath her chin.  She demonstrated the position of the accused’s thumb on her chin as she was giving evidence.  This evidence is consistent with her recounting a genuine recollection of an event that occurred.

185. The complainant’s account also included words spoken by the accused, including the words, “No wonder my son likes you, you’re good at this” [T 15.21 22/2/21], which the complainant alleged the accused said after he had ejaculated.  This alleged comment by the accused is particularly offensive in circumstances where on the complainant’s version she had just been violently raped.  I regard it as highly improbable that the complainant would fabricate such a humiliating and degrading comment about herself.  This evidence in my view strongly supports the credibility of the complainant.

Complaint evidence

189. The complainant gave evidence that she complained to G very shortly after the accused left the room.  She then remained at the house that night before being taken home by G the following morning.

190. I accept that the complainant’s account of the complaint made is inconsistent with G’s evidence that what was complained of was a touching of the breast. I also accept that the account of the complaint given by the complainant is inconsistent with the evidence of C who gave evidence that no complaint was made.

191. In relation to G, I do not consider his evidence adversely affects the reliability of the complainant’s evidence in circumstances where his memory has been demonstrated to be unreliable in a significant respect. 

192. Specifically, he has no recollection of any subsequent complaint being made during the family holiday at Dalmeny.  The complainant gave evidence that she was arguing with G and they were in the bedroom when she yelled out at the top of her voice, “[MC] is a rapist and all you guys need to know this” [T 18.11 – 18.12 22/2/21].

193. The accused in his record of interview supports the complainant’s account that G was present when the allegation was made at Dalmeny.  The accused was asked the following questions by police:

“Q117.  Have you ever had a cross word or argument with TT?

A.  I think so.  We had a fight down the coast with her.

Q 118. What was that about?

A.  Oh, she accused me of doing something I didn’t do and my mother-in-law was there, my mother-in-law said ‘no he didn’t do it’, she just made something up to get me into trouble.”

194. Further, the accused told police the following:

“Q 131.  And you are unable to recall?

A.  No, I don’t even know what it was for but it was for something stupid and she - she just started an argument, went to [G] and told [G] I done something which I didn’t do to get us fighting.”

195. Having regard to the evidence of the accused which is supportive of the complainant concerning G’s presence during the complaint at Dalmeny, I do not regard G as a reliable witness and for that reason I do not regard his evidence concerning the complainant’s immediate complaint as undermining the evidence given by the complainant which I have otherwise found to be truthful and reliable.

196. Further, whilst I accept that the complainant has given different accounts of the complaint she made to G shortly after the incident, I consider those differences are explicable given the passage of time since the commission of the alleged offences.  They do not cause me to reject the evidence of the complainant that she complained to G immediately after the alleged offending.

197. The complainant explained as follows:

“Like I said, details of what actually happened are ingrained in the mind and I have put this out of my mind for so long and then I had to bring it back up and it may not have been those exact words but it was something along the lines of that, yes” [T 35.28 – T 35.31 22/2/21].

198. In relation to the evidence of C, I do not consider her evidence is reliable in relation to the question of the absence of the complaint shortly after the alleged offending in circumstances where both the complainant and G each gave evidence of her being told of alleged conduct of the accused even though there are different accounts of what she was told.

199. In relation to the evidence of C concerning the complaint at Dalmeny, I am not satisfied that her evidence is irreconcilably different to that of the complainant concerning the circumstances in which the complainant made a complaint of sexual assault.  C gave evidence that the complainant “jumped up and ran up to the bedroom and she was yelling ‘he sexually assaulted me’” [T 75.36 – 75.37 23/2/21].

200. The complainant gave evidence that she was arguing with G and they went into the bedroom and she yelled out, “[MC] is a rapist and all you guys need to know this” [T 18.11 – 18.12 22/2/21].

201. Having regard to such evidence, I am not satisfied that any difference concerning the circumstances that proceeded the allegation being made by the complainant undermines the reliability of the complainant. 

202. Further, I am not satisfied that the absence of the evidence of H creates any reasonable doubt about the circumstances in which the complaint at Dalmeny occurred given the general consistency of the evidence which is also supported by the accused’s account in his record of interview with police.

203. I accept the evidence of the complainant that she did complain about a sexual allegation during the family holiday at Dalmeny.

204. I am satisfied that the complaint made at Dalmeny in late 1991 is strongly supportive of the complainant’s account of the alleged offending.  This is particularly so because the complaint is made many years before the complainant makes a formal statement to police in 2013.

The complaint to J

205. The complainant gave evidence that she complained to her sister J after she had been on the family holiday in Dalmeny.  The complainant did not remember the exact conversation with her sister, however did remember telling her “[MC] raped me”.  The evidence of J supports the complainant’s account that she did complain to her in late 1991/January 1992.

206. J first disclosed to police that something may have happened to her sister in 2011 in the context of being spoken to by police about another complaint involving the accused.  This was at a time when she was estranged from her sister.  She provided a statement to police in 2017 concerning the complaint made to her by the complainant.  At this time she was still estranged from her sister.

207. Whilst it was submitted on behalf of the accused that it is highly suspicious that there had likely been collusion between the complainant and J (in circumstances where the complainant did not include in her police statement in 2013 that she had complained to J), in circumstances where J provided her version of the complaint to police at a time when she was estranged from the complainant, I am satisfied that there is no reasonable possibility of collusion between her and the complainant in relation to the complaint. The complaint outlined in the evidence of J is generally consistent with the complainant’s account of the alleged offending. 

208. I am satisfied that J presented as genuine in her account and I accept her as a truthful witness.  I am satisfied that the complaint made to J is strongly supportive of the evidence of the complainant in relation to the alleged offending in circumstances where there is significant consistency in the account.

209. I have had regard to the lengthy delay between the date of the alleged offending and when the matter was reported to police and the effects of that delay on the ability of the accused to defend himself and I have given the prosecution case the most careful scrutiny.

210. I accept that there was a high risk of the accused being detected at the time of the commission of the offences in circumstances where G and C were in the house at the time and this supports a submission made on behalf of the accused that this renders the events unlikely. 

211. I also accept the submission made on behalf of the accused that logically one would expect that the complainant would not have wanted to remain at the house after the alleged offending and would have accepted C’s suggestion that G take her home.

212. I also accept that the complainant did not shout out during the commission of the offences. I do not accept that the absence of shouting renders the events unlikely.  It is well understood that people react differently to traumatic events and it is not uncommon for people to describe themselves as paralysed with fear.  This is precisely how the complainant described her reaction.

213. Whilst I accept that each of these matters is relevant to my consideration of the likelihood of whether the events happened in the way alleged by the complainant, such matters must be considered having regard to the totality of the evidence.

214. Having considered the available evidence, I accept the evidence of the complainant as being truthful and reliable in circumstances where I am satisfied she is very strongly supported by the immediate complaint made and also the complaints made at Dalmeny and to J.

215. I reject the denials of the accused in his record of interview.

Evidence in relation to the complainant being under the authority of the accused

216. The facts relied upon by the Crown to establish that the complainant was under the authority of the accused are as follows:

1. That at the time of the commission of the alleged offence the complainant was 14 or 15 years of age; and

2. That the complainant was staying at the accused’s house and the accused was the father of her boyfriend.

217. In order to find that the complainant was under the authority of the accused, the Court would need to draw an inference having regard to those facts.

218. There is no direct evidence of any supervisory role of the accused in relation to the complainant.  The complainant was not asked any questions about whether she was supervised by the accused when she was staying at his house.  There was direct evidence of supervision by C in circumstances where she directed the complainant not to sleep in the same room as G.

219. In order to be satisfied beyond reasonable doubt that the complainant was under the authority of the accused, the Crown must establish that the inference the Crown asked the Court to draw is the only rational inference. 

220. In my view, the available evidence does not exclude the possibility that it was C who undertook the supervisory role in relation to the complainant to the exclusion of the accused.

221. In those circumstances, I am not satisfied beyond a reasonable doubt in relation to Counts 1 and 3 that the complainant was under the authority of the accused at the time of the commission of the alleged offences.

Conclusions in relation to other elements of the offences

222. I am satisfied beyond reasonable doubt that between 12 April 1990 and 16 March 1991 the accused had sexual intercourse with the complainant being an act of digital penetration (Count 2) and a further act of penile/vaginal intercourse (Count 4).

223. I am further satisfied beyond reasonable doubt that each act of sexual intercourse was without the consent of the complainant having regard to the evidence of the complainant concerning her reaction to the intercourse and the degree of force used including the accused placing his hand over her mouth and the force used during each sexual act.

224. I am further satisfied beyond reasonable doubt that the accused knew the complainant had not consented to the sexual intercourse having regard to both the degree of force used before and during each sexual act and also the words spoken by the accused to the complainant during a sexual act, “don’t make a noise or I’ll hurt you” [T 13.11 22/2/21].

225. I am satisfied beyond reasonable doubt in relation to each count that at the time of the complaint the complainant was under 16 years of age, being 14 or 15 years old.

226. Accordingly, my verdicts are as follows:

1. In relation to Count 1, that between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales that the accused did have sexual intercourse with T, a person then under the age of 16 years, namely 15 years, without her consent and knowing that T had not consented to the sexual intercourse, the said T being at the time under the authority of MC by reason of MC being the father of her boyfriend, I find the accused not guilty.

2. In relation to Count 2, that between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales the accused did have sexual intercourse with T without her consent and knowing that T had not consented to the sexual intercourse, I find the accused guilty.

3. In relation to Count 3, that between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales the accused did have sexual intercourse with T, a person then under the age of 16 years, namely the age of 15 years, without her consent and knowing that T had not consented to the sexual intercourse, the said T being at the time under the authority of MC by reason of MC being the father of her boyfriend, I find the accused not guilty.

4. In relation to Count 4, that between 12 April 1990 and 16 March 1991 at XX in the State of New South Wales the accused did have sexual intercourse with T without her consent and knowing that T had not consented to the sexual intercourse, I find the accused guilty.

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Amendments

22 June 2021 - Further anonymisation.

Decision last updated: 22 June 2021