R v Mm

[2018] NSWDC 181

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v MM [2018] NSWDC 181
Hearing dates:	29 January to 19 February 2018
Date of orders:	09 March 2018
Decision date:	08 March 2018
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	See Appendix 1
Catchwords:	CRIMINAL LAW – Judge-alone determination – Child sexual assault - six complainants and multiple charges – 77 counts – grandfather – step-grandfather – assault filmed – grooming - supply drugs to groom child – ongoing abuse – blackmail victims – indecent assault “with” or “towards”
Legislation Cited:	Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Crimes Act 1900 Eades v DPP (NSW) [2010] NSWCCA 241; (2010) 77 NSWLR 173; (2010) 203 A Crim R 136 Fleming v The Queen (1998) 197 CLR 250 McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527 R v Chonka [2000] NSWCCA 466 R v Manson (NSWCCA, 17 February 1993, unreported) R v Nelson [2016] NSWCCA 130 R v Orsos (1997) 95 A Crim R 457 at 460 R v Page (unreported, NSWCCA, 25 November 1991)
Texts Cited:	Queensland Criminal Code
Category:	Principal judgment
Parties:	Regina (Crown) MM (Accused)
Representation:	Counsel: DPP: Mr Michael Fox of Counsel Accused: Ms Linda McSpedden of Counsel   Solicitors: Douglas & Ford Criminal Law
File Number(s):	2015/00181812, 2015/00220576, 2015/00220588, 2015/, 2015/00220622, 2015/00223091, 2016/00049614
Publication restriction:	Non-publication order re accused’s name, the identity of each of the complainants or any matter which is likely to lead to the identification of such complainants, and the identity of various family members and relatives of the complainants. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials.

Judgment

1. HIS HONOUR: At the outset of today’s proceedings, I wish to make a number of observations. These are remarks and an explanation of the reasons for my deliberations and verdicts in a judge-alone trial. As will become clear, there are 77 counts in the indictment which was presented and there are complaints emanating from six separate complainants.

2. A very substantial deal of material was tendered in the course of the prosecution case which, although voluminous in both text and in listening time so far as recordings were concerned, was not ultimately the subject of any detailed submissions. This has necessitated a considerable attention to detail in the course of deliberations in order to address detail which had not been specifically addressed during the course of the trial. There were, and in some cases remain, a considerable number of defects in the original indictment which was presented. This required a substantial number of amendments being sought and leave being granted for such amendments. Other defects in the indictment have remained even in its now amended form.

3. As will become clear, charges have been preferred with regard to some allegations which require consideration of legal concepts of consent, notwithstanding that the allegations relate to a child under the age of legal consent. These, and other issues, have created complications in my deliberations regarding the question of the guilt of the accused with respect to the various accounts and have, accordingly, led to a judgment which is anything but succinct.

4. Despite the time which has elapsed since the finalisation of submissions and subsequent legal argument regarding the indictment, the court is not in a position to simply provide a summary judgment and to hand down reasons in a form ready to be published. I provide these introductory remarks by way of explanation for the fact that my remarks and reasons will take a longer period to deliver than might be viewed as desirable.

5. Before I proceed, I should remind the press that there are non-publication orders in place. I do not propose to anonymise the names in the course of delivering the judgment. I will read the full names.

6. On 29 January 2018, MM was arraigned in the District Court at Wollongong in respect of 77 counts in an indictment alleging a variety of different acts of sexual activity with numerous children, as well as ancillary conduct relating to the production and possession of child pornography or child abuse material, namely video and audio recordings and still photographic images. With respect to each of the 77 counts in the indictment, the accused pleaded not guilty. The accused had elected for a judge-alone trial and because of the graphic nature of the video recordings which were intended to be tendered, the Crown consented to such election. In that circumstance, there was no judicial discretion to be exercised and the trial thereafter proceeded as a judge-alone trial before me until 19 February 2018.

7. Thereafter, and in the course of my deliberating with respect to returning verdicts, the hearing was relisted on 27 February 2018 in order to hear submissions from both parties regarding a number of apparent defects in the indictment. It was also relisted for the purpose of clarifying the relevant contents of a DVD disc (Exhibit Y) which had been tendered and which contained additional images to those which had been referred to in the course of the trial and submissions.

8. On 27 February 2018 the situation with respect to the evidence which had been admitted was clarified and I heard submissions with respect to a substantial number of amendments to the original indictment which were then sought by the Crown. Some of these were opposed. Ultimately, the Crown was granted leave to amend the indictment in the various respects which were sought. My reasons for granting that leave and permitting the amendments are set out in my judgment of 27 February 2018.

9. With respect to the counts in the indictment which involved a prescribed sexual offence, the identity of each of the complainants or any matter which is likely to lead to the identification of such complainant is prohibited from publication by virtue of the provisions of s 578A of the Crimes Act 1900. The circumstances of the nature of the relationships and the connection with the accused by the various complainants is such that identification of the accused or his wife by name is a matter which is likely to lead to identification of the various complainants. In such circumstances, his identity is thereby also prohibited from publication, and absent the application of any of the subsections set out in s 578A(4), unless and until any of those applications are made, his identity is similarly not to be published. Subject to any further order, such restrictions on publication will extend to the various family members and relatives of the complainants.

TRIAL BY JUDGE ALONE

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

ROLE AS A TRIBUNAL OF FACT

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

BURDEN OF PROOF

12. It is convenient to start with some general principles. The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. In a criminal trial there is only one ultimate issue: has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty.

13. Although an accused is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the specific offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute. The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged.

14. In the present trial the accused did give evidence. That does not alter the onus of proof which rests upon the Crown throughout the trial. The alternative explanation for some aspects of the evidence in the trial which was advanced by the accused does not in any sense raise an onus or burden upon him. It remains for the Crown to negative exculpatory explanations which have been advanced by the accused and to negate such possible explanations beyond reasonable doubt.

INFERENCES AND CIRCUMSTANCE OF EVIDENCE

15. I may in my role as the judge of the facts draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such an inference is a reasonable inference that can properly be drawn from those facts. The present case rests variously on direct evidence from the complainants with respect to most counts in the indictment. However, there are surrounding circumstances from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence, I remind myself of some fundamental principles.

16. How convincing and reliable a circumstantial inference may be depends upon the number and nature of the basic facts relied upon by the Crown when considered as a whole. The question as to whether all of the evidence in a particular respect leads to an unavoidable conclusion requires careful consideration. In the present matter the Crown relies upon circumstances relating to the existence of facts in support of the direct evidence of the complainants. It also relies upon a combination of circumstances in support of identified tendencies. I remind myself of the need to be satisfied beyond reasonable doubt of the existence of any fact or circumstance which is critical to a finding of guilt.

17. Other circumstances may be relied upon, in combination with other established facts, in determining the ultimate question as to whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused beyond reasonable doubt with respect to any particular count.

WITNESSES

18. It is for me to assess the witnesses called in the trial and to decide whether they are reliable. Reliability depends upon two 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 the witness has made on me in my capacity as the tribunal of fact.

COMPLAINT

19. The Crown seeks to rely upon evidence of complaint with respect to the individual complainants. If I find the complaint was made in the ways alleged by the Crown, I can use evidence of what was said in the complaint as some evidence that the incident, the subject of the particular charge being considered, did occur. That is, I can use it as some evidence independent of the evidence given by the individual complainant. A tribunal of fact is entitled to consider whether a complaint is made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by a complainant and is more likely to be accurate. Ultimately, it is a matter for me as to whether I draw that conclusion in this trial with respect to any particular allegation. If complaint evidence is used as some evidence in relation to a specific count, what weight is to be given to the evidence is a matter for the tribunal of fact.

CONTEXT AND TENDENCY EVIDENCE

20. In the course of the trial the Crown led evidence of other acts of alleged misconduct by the accused in addition to the acts relied upon in direct proof of the counts in the indictment. The evidence of other acts in some regards was led to place the allegations in what is said to be a realistic and intelligible context. Context in this regard refers to the history of the conduct by the accused towards a particular complainant. Context evidence does not thereby establish a tendency. One must not reason that because the accused may have done something wrong or improper to a particular complainant on another occasion, that he therefore must have done so on the occasions alleged in the indictment.

21. However, the Crown does seek in a number of respects to establish a pattern of behaviour that would reveal that the accused has certain specified and identified tendencies. Evidence suggesting that the accused had a particular tendency can only be used if I make two findings. The first finding is that one or more of the acts occurred. That finding can only be made if I am satisfied beyond reasonable doubt that it did occur. In making that finding I am entitled to consider all of the evidence rather than the acts in isolation. If I am satisfied beyond reasonable doubt that the acts occurred, I am entitled to go to a second consideration, namely whether from that act or acts that I have found proved I can conclude beyond reasonable doubt that the accused had the particular tendency that the Crown alleges. If I cannot draw that conclusion beyond reasonable doubt, I must put aside any suggestion that the accused had the claimed tendency.

22. If I find that an identified tendency exists beyond reasonable doubt, I may use the fact of that tendency in determining whether the accused has committed any of the particular offences charged. I should give such weight as I think the tendency deserves in the context of all of the evidence before me. It would be wrong to reason that because the accused had committed one crime or other acts of misconduct, that he is therefore generally a person of bad character and for that reason must have committed the offence or offences charged. In a trial of the nature of the trial before me, I must not substitute any finding with the accused had a sexual interest in one or other complainant for the evidence of the specific allegations contained in the indictment. The Crown is not charging a course of misconduct, but is charging specific allegations. I am required to consider whether each specific charge is proved beyond reasonable doubt before any verdict of guilty can be returned.

BACKGROUND

23. The accused MM was born in Germany in 1947. He is now 70 years of age. He came to Australia with his parents in 1953 and married his first wife in 1966 at about 19 years of age. After approximately 16 years of marriage the accused and his first wife separated.

24. In 1984, the accused married his second wife. At the time of this second marriage both the accused and his second wife each had children from their respective first marriages. The accused and his first wife had two children, a son (S1) and a daughter (D1). The accused’s second wife had three daughters from her first marriage, SD1, SD2 and SD3. When the accused and his second wife married in 1984 the three girls of his new wife were approximately 16, 14 and 10. They lived together with their mother and the accused, and grew up as the stepdaughters of the accused.

25. A number of the allegations brought in relation to the accused relate to his dealings and interaction with the two daughters of his own son, S1. Each of those girls, Complainant 2 and Complainant 3, are his biological grandchildren. A third complainant is another biological granddaughter, Complainant 5. Complainant 5 is a daughter of the accused’s own daughter, D1.

26. Two additional complainants, Complainant 1 and Complainant 4, are respectively the daughter and son of SD2, one of the accused’s stepdaughters. Whilst strictly described as his step‑grandchildren, they have grown up to all extents and purposes as his grandchildren and were treated as such. They referred to the accused as ‘Opa’, similar to his other grandchildren, that being the German affectionate name for “Grandpa”.

27. The sixth complainant was also, effectively a relative, by marriage. Complainant 6 was a niece of the accused’s stepdaughter, SD1. Complainant 6 was a daughter of SD1’s brother-in-law (BL1).

28. The evidence at trial clearly established that all relevant times the accused lived with his second wife at a home on the NSW South Coast. His son, D1, and D1’s wife lived together with their children, Complainant 2 and Complainant 3, in central west New South Wales. Complainant 2 was born in 1994 and her sister, Complainant 3, in 1996.

29. SD2 and her husband lived together with their children at a township to the south of Wollongong. Complainant 1 was born in 1999 and her brother, Complainant 4, in 2001.

30. D1 and her husband resided in Wollongong, together with their children. Their third eldest, Complainant 5, was born in 2003.

31. BL1 was the brother-in-law of the eldest step-daughter of the accused (SD1). BL1 and his wife lived with their children in the western suburbs of Sydney. Their eldest daughter, Complainant 6, was born in 2001.

32. The alleged conduct of the accused towards each of the complainants is said to have occurred at different times and in a variety of different locations. The accused was evidently an interactive grandfather who took his various grandchildren boating and fishing, as well as camping and on other holidays. He and his second wife regularly had Complainant 1 and her brother, Complainant 4, stay at their home, both on ordinary weekends and for extended periods of time during school holidays. It would appear that both of the parents of Complainant 1 and Complainant 4 worked, and while the estimates as to the regularity of visits varied somewhat, it is clear that Complainant 1 and Complainant 4 spent many extensive periods of time at their grandparents’ home whilst their parents were working.

33. The accused owned a caravan, which was established on the evidence to be worth in the vicinity of $30,000 at the time discussions regarding its sale were held in 2015. It was of sufficient substance to have not merely sleeping facilities but also to have its own shower and toilet. Various diagrams were drawn in the course of the trial regarding the layout of the caravan although no photographs of its interior were tendered in evidence. I am of the impression that it was a modern and well-equipped caravan. It featured as a location with regard to numerous of the complaints made regarding the conduct of the accused.

23. The allegations ultimately brought against the accused included allegations regarding the supply of cannabis and prescription drugs, frequently against the background of the supply of alcohol to his grandchildren. (I should note in this regard that I use that term in these remarks as also including his step-grandchildren).

24. A deal of evidence was led in the course of the trial which was intended to provide contextual background evidence as to the nature of the relationship enjoyed by the accused with each of the complainants as well as more specific evidence which was sought to be relied upon as proving a tendency to act in a variety of ways. The identified tendencies included activities which would fall within the broad categorisation of “grooming” including the provision of money, material goods, drugs and alcohol to the children as well as informing some of the children that he would take photos of them to facilitate their introduction to a modelling agency.

25. The Crown case also sought to paint a picture of the accused as making sexually explicit and/or inappropriate comments to and about the children with regard to their bodily development. I will come to the detail in due course, but the evidence also revealed the fact of a large number of communications by SMS messaging from persons referred to as “Bob”, “Toey” and “Lyn”, and whether or not those persons are real or fictitious is an issue which will need to be determined.

26. Some of the evidence that was led regarding comments and actions by the accused historically might be viewed in some respects as revisionary in the sense that some comments or activities which might have been perceived to, in effect, be “harmless” at the time they were originally made may have been retrospectively viewed somewhat differently in light of the subsequent allegations raised with respect to the accused’s conduct. This possibility will need to be carefully considered in due course.

CHRONOLOGICAL OVERVIEW

38. Whilst it is necessary to go to the individual complaints which form the basis of the specific counts in the indictment, a chronological overview provides a contextual background to the allegations which may not be immediately evident when focusing on the individual complainants.

39. The first allegation of sexual impropriety chronologically relates to his step-granddaughter, Complainant 1. She dates her first sexual interaction with her step-grandfather at a time prior to her commencing school. Complainant 1 commenced school in 2005 at the age of 5. She told police in June 2015: “Before I started school (MM) only ever touched me by putting a finger in my vagina or rubbing my vagina…” Allegations of either sexual assault or intercourse by virtue of digital penetration at a time prior to the child commencing school do not form the basis of any count in the indictment as presented. This evidence was led and admitted without objection as context and tendency evidence.

40. Complainant 1 also told police of an incident that she remembered in 2005 once she had started school where she was taken in her grandfather’s boat to a place referred to as ‘the Basin’ where she was taken into the bushes and her vagina was touched. This particular incident which she specifically described is also not the subject of a count in the indictment and was again relied upon as context and tendency evidence.

41. Complainant 1 also described an action where her grandfather would lift her up onto his shoulders and spin her around and blow hot hair between her legs. As with the above circumstances, this act was not relied upon as the basis for a count in the indictment.

42. In due course, the allegations raised by Complainant 1 included assertions regarding the taking of videos on a camera which her grandfather possessed, of her engaging in sexual activity with her grandfather. Whilst I will come to the detail of the allegations regarding video filming of activity later in these deliberations, there was no specific evidence adduced from Complainant 1 as to the earliest occasion on which she claimed videoing to have occurred.

43. However, if accepted, indirect evidence of the filming of Complainant 1 when she was at a very young age was adduced from the accused’s granddaughter, Complainant 2, the elder daughter of his own son. Complainant 2 gave evidence of the accused showing her a movie in which she could observe Complainant 1 lying naked on a bed in the accused’s caravan. The accused came into view in the movie and was observed by Complainant 2 to be naked with an erect penis. Complainant 2 described further detail of what she saw in those video images but significantly expressed the opinion that Complainant 1 appeared to be only about 4 or 5 years of age and was still sucking her thumb in the recorded vision. If the assertion of Complainant 2 as to Complainant 1’s age is accepted, from the events described the recording would have been made sometime between about August 2003 and August 2005.

44. Complainant 2 claimed to have been shown the video depicting Complainant 1 when she, Complainant 2, was around 11 or 12 years of age. Complainant 2 also described interaction with her grandfather which, if accepted, might be perceived as grooming or enticing her to participate in sexual activity. These occurrences, if accepted, occurred in the period between about 2006 and 2008.

45. Complainant 2’s younger sister, Complainant 3, who was born in 1997, claims to have been shown a photo of a naked female child with her vagina exposed and being told that she could earn money if she posed in a similar position. Complainant 3 said that she was 8 or 9 years of age when that event occurred and that whilst she remained clothed, her grandfather had manipulated her arms and legs in different poses as an example of what she might do whilst naked. These events are said to have occurred during either 2005 or 2006. I note in passing that photographs depicting Complainant 1 in a strikingly similar position to that described by Complainant 3 were ultimately recovered by police from a digital memory card in the possession of the accused.

46. Another allegation of Complainant 2 of herself being photographed naked whilst in her grandfather’s motor vehicle was said to have occurred in circumstances which would place the event in January 2008.

47. Complainant 1 asserts the first time that her grandfather had what she described as “full intercourse” with her was, if the surrounding circumstances and her recollection of time is accurate, in the first half of 2009. She gave a detailed description of intercourse in her grandfather’s first white Nissan Patrol motor vehicle and, if her evidence in that regard is accepted, the events took place prior to the disposal of that motor vehicle in May 2009. (I note that the accused owned two white Nissan Patrol motor vehicles and I will come to that detail in due course).

48. In around 2008 or early 2009, a further grandchild alleges sexual interaction with the accused. Complainant 4 (the younger brother of Complainant 1) subsequently claimed that when he was about 7 years of age, his grandfather had made him grab his grandfather’s penis and move his hand up and down for a short period on an occasion that they were both in the accused’s caravan.

49. In 2009, a specific allegation regarding the alleged conduct of the accused was raised by Complainant 5. This was the first complaint actually raised by any of the grandchildren. She was 6 years of age at the time and in circumstances which I will details later in these deliberations, she complained that her grandfather had licked her on her private part which she described as her “wee wee”. That allegation was recorded in an interview by police with the child in 2009. It would appear that no charges were laid at that time and there is no evidence as to what, if any, investigation ensued.

50. Sexual activity involving both Complainant 1 and Complainant 4 is alleged to have occurred repeatedly on occasions between about 2008 and 2011. Some of the events described are said to have taken place in a bush area near Nowra in the accused’s motor vehicle. Complainant 4 was about 9 years of age and his sister, Complainant 1, was 11 or 12 years of age. According to the complaint made by Complainant 4, the accused gave him, that is a 9-year old boy, a Viagra tablet and he was then required to film sexual intercourse between his sister and the accused.

51. In addition to sexual activity being described as having occurred in the motor vehicle, both children, Complainant 1 and Complainant 4, gave detailed descriptions regarding sexual interaction with their grandfather in an attic area at their grandparents’ house. I will come to the detail of those specific allegations in due course. A substantial number of counts in the indictment relate to such allegations. Both children gave evidence of the sexual activity being recorded on camera and in due course a video recording was recovered by police in the course of their investigation which, subject to some observations which I will make in due course, appears to depict sexual intercourse between the accused and his step-granddaughter as well as sexual interaction involving Complainant 4.

52. It is the Crown case that the video recordings were likely made in approximately June 2012, although the ambit of the counts as pleaded in the amended indictment is somewhat wider. According to Complainant 1, filming and photographs were also taken at other locations between about 2013 and 2015.

53. During a period in either 2013 or 2014, there is also said to have been a degree of interaction between the accused and another child, Complainant 6. Complainant 6 was, as I have described earlier in these observations, the niece of one of the accused’s stepdaughters. The accused had been involved in carrying out renovations at her parents’ home and various interactions and discussion between the accused and Complainant 6 at a time when she was approximately 12 years of age are said to have a sexual connotation and they form the basis of additional counts in the indictment.

OVERVIEW OF DEFENCE CASE

54. In his defence, the accused has advanced a positive case. He gave evidence and was cross-examined. As I have reminded myself in the directions which I am required to give myself, the fact that the accused elected to give evidence does not create any onus upon him. It remains for the Crown to negative exculpatory matters raised by the accused and the onus rests upon the Crown to establish the guilt of the accused with respect to the elements of the various counts beyond reasonable doubt. It is appropriate, however, to outline, at least in a general overview sense, the nature of the defence raised by the accused.

55. With respect to the vast majority of allegations raised by the various complainants other than Complainant 1 and Complainant 4, the accused denies that any activities of a sexual nature took place whatsoever with regard to the children. With respect to some specific actions, for example asking for a photograph of Complainant 6 in a bikini, he concedes that the act relied upon by the Crown did occur but asserts that it had no sexual connotation.

56. With respect to the allegations raised by Complainant 1 and her brother Complainant 4, the accused denies that any such activities took place other than acts of intercourse initiated by Complainant 1 when she was 14 or 15 years of age. Any sexual activity prior to 2015 (or 2014 in some respects in his evidence) with relation to Complainant 1 and/or her brother Complainant 4, the accused denies having occurred. His case was that he was effectively “forced” to have sex with Complainant 1 as a result of her demands and her effectively imploring him with “those sad eyes” and telling him “you’ve got to”. His case was that he only did what she wanted him to do and that which she had initiated. With respect to SMS messages received by Complainant 1 and Complainant 4, the detail of which I will turn to later in these remarks, the accused claimed that they came from third parties to whom he had lent mobile phones. He denied that he was the author of any of those messages.

SPECIFIC COUNTS

57. Against the background of the above general overview, I now turn to the specifics of the criminal acts which are alleged in the indictment. I do not propose to do so either in a chronological order or in the order in the indictment, but rather in what appears to me to be a logical fashion derived from the evidence.

COUNTS 28 TO 61 (COMPLAINANTS 1 AND 4)

58. The high point of the Crown case derives from the discovery by police of three video files contained on a digital SD memory card which was seized during a search of the accused’s vehicle. The digital recording of those three video files forms the basis of some 33 counts (28 to 61 inclusive) in the indictment. The accused’s case concedes that video was filmed in the attic space at his home on an occasion when he had sexual intercourse with his step-granddaughter, Complainant 1. The Crown case, however, alleges that the activities depicted in the video recordings took place when Complainant 1 was under the age of 14 years, most likely in about June 2012 when she was still only 12.

59. The case for the accused is that the video was recorded in 2015 or, as he suggested in some parts of his evidence, possibly 2014. The significance of this difference is that it is asserted by the accused that Complainant 1 was 15 years of age and hence intercourse with her would constitute a different offence than that charged, namely an offence under s 66C(3) or s 66C(4) if in circumstances of aggravation. Notwithstanding the use of the terminology by the accused of having been “forced”, it was conceded by Ms McSpedden, who appeared for him at trial, that such “forcing” could not approach any legal definition of duress.

60. In the event that the Crown fails to establish an element of the offence which has been charged, namely that Complainant 1 was under the age of 14 years, the Court would inevitably find the statutory alternative pursuant to s 66E of the Crimes Act 1900 made out and the accused would be found guilty of that statutory alternative. A major question for determination is, therefore, when the video file recordings relied upon by the Crown were in fact made.

61. A related question arises from the assertions by the accused in the course of his evidence that he believed that the video recordings had been “doctored”. He specifically gave evidence that he believed that the appearance of the children had been doctored to make them look younger than they were and, whilst conceding that he had had intercourse with Complainant 1 in the attic of his home and that the activities viewed in the video had taken place, at one stage in his evidence he asserted that whilst the head and face in the video was indeed of himself, the physical body was not his and the vision of the penis was similarly not him. He claimed, with respect to the vision of the penis, that he was “not that big”.

62. I am of the view, beyond reasonable doubt, that the passing suggestions of any doctoring of the video images are entirely baseless. On all of the available evidence, I am satisfied that the video recordings, found on the SD card in the motor vehicle of the accused, are genuine recordings which provide immutable evidence of his physical activity with and in the presence of his two step-grandchildren, Complainant 1 and Complainant 4.

63. I am satisfied beyond reasonable doubt that the suggestion that the videos were anything but genuine is a gratuitous suggestion made by the accused in an attempt to deal with conclusions as to the obvious youth of the children as observed in the video. The similarly gratuitous suggestion in the course of his cross-examination that the images of the penis and of the torso were not of himself were, in my view, disingenuous attempts to “muddy the waters.”

64. In addition to being satisfied of the genuine and unaltered state of those video images, I make the following finding of fact in respect of which I am satisfied beyond reasonable doubt. First, the vision was shot in the attic space of the roof of the accused’s home. Second, the images were filmed on an occasion which preceded 16 February 2013. That date is significant because of objective evidence in the trial and also a concession by the accused himself in the course of his evidence.

65. Prior to 16 February 2013 each of Complainant 1 and Complainant 4 were regularly in attendance at their grandparents’ home. Concerns had been raised prior to that date within the extended family of the accused at earlier times because of allegations and complaints which had surfaced within the family regarding others of his granddaughters. I will come to the detail of those complaints in due course. However, despite those concerns being held by SD2 (Complainant 1 and Complainant 4’s mother), the children had still been permitted to continue to visit the home of their grandmother and the accused.

66. However, on 14 February 2013, an incident occurred at Complainant 1’s school, following which she and her brother went with the accused to his home on the South Coast on 15 February 2013. The following day, 16 February 2013, SD2 and her husband went to collect their children from the grandparents’ house and to take them home. There was some form of confrontation, including physical interaction, between the accused and SD2’s husband prior to the children being removed from their grandparents’ home and departing with their parents.

67. Following the physical interaction to which I have referred, the accused made a complaint to local police about what he described as the safety of the children in the custody of their own parents. That complaint led to an attendance upon the family home of SD2 by officers of the NSW Police. The upshot of those circumstances was that Complainant 1 and Complainant 4 were never again permitted by their parents to go to their grandparents’ home.

68. The accused, in his evidence, conceded that the children never again physically attended his home after this incident to which I have referred. This inevitably created a logical conundrum in the case advanced by the accused regarding when the video had been filmed. He steadfastly maintained that it was filmed in 2015 (or, as I have earlier indicated, possibly in 2014), a fact and assertion which would be impossible once one accepts that it was filmed in the attic of his home and that the children had never attended that home after February 2013. Confronted with documentation that unarguably established that the incident following which the children did not attend his home had in fact occurred in February 2013, the accused could offer no explanation. I am on that basis alone satisfied beyond reasonable doubt that the filming of the images in the three videos tendered (Exhibit Y) must have taken place prior to 16 February 2013. It can be noted that as at that date, Complainant 1 was 13 years of age and did not turn 14 until August 2013.

69. However, the evidence does not simply rest on that date alone. Evidence was led in the Crown case, both from Complainant 1’s mother and also objectively through dental records and photographs taken by her orthodontist, that the child had previously had a substantial overbite and a prominent gap between her front teeth. This was the subject of remedial orthodontic treatment which commenced when she was 12 years of age and concluded after she had turned 14. Photographs had been taken and were tendered into evidence of Complainant 1’s face with her lips apart and smiling on 31 August 2011 when she had just turned 12. Close-ups were also taken of her teeth, which clearly demonstrated the prominent overbite and also the substantial gap that she had at that age between her front teeth.

70. The report regarding her orthodontic treatment (Exhibit EEE) indicated that what was described as a twin-block appliance was fitted on 12 October 2011. The evidence established that this plate, or mouth block, was able to be removed. However, what were described as full-fixed appliances (or braces) were fitted by the orthodontist on 16 August 2012. Those braces on her teeth were not removed until 13 November 2013. Photographs showing Complainant 1 able to close her lips as a consequence of the overbite being dramatically rectified and also showing her smiling, with the gap between her front teeth completely absent, were taken on 29 November 2013 after she turned 14 in August of that year.

58. Clearly evident in the videos seized by police, still images of which were recorded and separately tendered, are images of Complainant 1 in the course of the sexual activity with her grandfather, in which the prominent gap in her front teeth is clearly visible. There is no full-fixed orthodontic appliance (braces) present on her teeth during the time that the video was recorded. I would, accordingly, be satisfied beyond reasonable doubt that not only was the video recorded prior to 16 February 2013 for the reasons that I have expressed above, but by reference to the orthodontic evidence, I would be satisfied beyond reasonable doubt that the video was filmed at least prior to 16 August 2012. As it happens, 16 August 2012 was just days after Complainant 1’s 13th birthday.

59. In addition to the orthodontic evidence, there was opinion evidence led from both the child’s mother and also from the police officer in charge of the investigation as to their respective estimates as to the ages of the children, as depicted in still photographs extracted from the video files. SD2 gave evidence that the box plate was worn when Complainant 1 was in year 6 and year 7 at school and that she got braces after that. She estimated the age of her daughter in the photograph that was shown to her in evidence - which was a slightly edited version without showing the pornographic or genital area of the images - and SD2 identified that image of her daughter as being prior to the orthodontic procedure. She thought that in the photo she was shown Complainant 1 looked around about 9 or 10 years of age and that therefore Complainant 4 would have been about 8. That recollection coincided in broad terms with the calculations that might be made from the precise dates provided by the orthodontist.

60. An opinion expressed by Detective Senior Constable Prior from the Child Abuse Squad of the NSW Police, who had 11 years’ experience working for both the NSW Police and the Australian Federal Police in cases involving allegations of child abuse material and also extensive experience in viewing such material, was that the children in her opinion appeared to be respectively about 12 years of age and about 10 years of age. That opinion accords with my own perception from having seen the images of the children in the video.

61. In addition to those opinions and estimates, digital data was able to be recovered from thumbnail images with respect to each of the three videos on the SD memory card. With respect to each of the video files, to which I will give more attention to detail in due course, an image of the opening scene of each video is automatically stored as a still image, described as a thumbnail. Those thumbnail images had digital properties recorded indicating the date and time at which the videos were taken, according to the date put into the camera. Whilst such dates are capable of manual manipulation and alteration by the operator of a camera, the dates recorded in the properties, namely, 23 and 24 June 2012, are entirely consistent with the other objective evidence and the opinion evidence as to the ages of the children. The timing of the second and third videos, recorded as being ten minutes apart were, in the properties, completely consistent with the vision itself and with the length of the second video.

62. I am satisfied beyond reasonable doubt that the recordings were made when Complainant 1 was under 14 years of age, and for the reasons that I have set out in detail above, I would be satisfied beyond reasonable doubt that she was either 11 or 12 years of age. Her younger brother was of course 18 months younger than her, and such an age is consistent with his physical appearance in the video, including his lack of any pubic hair. Against the background of these factual findings, I now turn to the specific counts which rely upon the vision in the video files.

63. A detailed description of what can be observed in the three video files is set out in a summary document which was tendered in the trial and became Exhibit Z. Those summary descriptions were tendered as an aid to following the videos and I remind myself that the conclusions as to what one can observe remain a matter for me as the tribunal of fact. That having been said, having perused the videos in the course of my deliberations, as well as in court, there is nothing in the typed summaries with which I would disagree.

64. The observation is subject to one qualification namely with respect to the summary which had a portion blacked out and in respect of which agreement had obviously not been able to be reached in which it had been asserted that the accused was giving directions or instructions in the course of the video recording. I am of the view that those descriptions could well have remained in the summary document. In my view, the accused was clearly directing actions which should take place and giving instruction as to the positioning of bodies, ensuring the action was being recorded, and giving directions to Complainant 4 with regard to the actual filming of the physical sexual activity which was occurring in his presence.

65. I note that in addition to the vision that was being recorded on a fixed position camera, throughout the taking of the first video, other vision was being filmed, some at extremely close range, on a second camera being held mostly by Complainant 4. In the light of other evidence it is not insignificant that the second video being taken simultaneously with the actions recorded by the first camera was never recovered in any of the police searches.

VIDEO FILE 1 (CONTAINED ON EXHIBIT Y)

COUNT 28

79. Count 28 is a charge pursuant to s 61O(2A) of the Crimes Act 1900. The charge as amended pleads that between 17 September 2010, just one month after Complainant 1’s 10th birthday and 16 August 2012, the date on which the permanent fixed braces were put in place by the orthodontist, the accused incited Complainant 1, then being a person under the age of 16, to an act of indecency with himself, he knowing that the act was being filmed for the purposes of the production of child abuse material.

80. For the reasons I have expressed above, I am satisfied beyond reasonable doubt that the acts in the vision which was recorded did occur within the dates pleaded. I am satisfied that the filming occurred in the attic area of the accused’s home in the State of New South Wales. I am satisfied that the actions particularised, namely the child lying naked on her side adjacent to the accused, who was also naked, and her being viewed to masturbate the accused constitutes an act of indecency with the accused who clearly knew that the act was being filmed. Clearly the filming was for the purposes of the production of child abuse material.

81. The actions thus described were clearly, in my view, encouraged or incited by the accused. I am satisfied beyond reasonable doubt that he incited Complainant 1 to an act of indecency with himself; that he knew the act was being filmed; that it was being filmed for the production of child abuse material and accordingly I return a verdict of guilty with respect to that count.

COUNT 29

82. Count 29 is a charge pursuant to s 66C(2) of the Crimes Act 1900 namely having sexual intercourse with a child above the age of ten years and under the age of 14 in the circumstances of aggravation, namely that she was under the authority of the accused. This count relates to the next sequence of vision of some 14 seconds in duration during which time Complainant 1, under the direction of her grandfather, the accused, sucked his erect penis. This act of fellatio falls within the statutory definition of sexual intercourse. Consistent with my findings regarding the age of the complainant, as I have expressed earlier, I find that she was 11 or 12 years of age at the time. I am further satisfied beyond reasonable doubt that Complainant 1 was in the care and under the supervision of her grandfather and accordingly was under his authority. With respect to the allegation in Count 29, there will be a verdict of guilty.

COUNT 30

83. This count is similarly brought pursuant to the provisions of s 66C (2) of the Crimes Act 1900. Following the acts which give rise to Count 29, Complainant 1 was repositioned onto her back with her legs open. The accused is observed to roll onto his stomach and to put his head between her legs. He can then be clearly seen to be licking her vagina with his tongue for approximately 30 seconds.

84. This act of cunnilingus is clearly depicted and falls within the definition of sexual intercourse under the Crimes Act 1900. For the reasons already articulated, I am satisfied that the complainant was under 14 years of age and under the authority of the accused. With respect to Count 30 in the indictment, I find the accused guilty.

COUNT 31

85. This count is also brought pursuant to s 66C(2) of the Crimes Act 1900. Following the acts I have described above, the accused then physically repositioned Complainant 1 closer towards him. He reached behind her to obtain a cushion and then placed it underneath her backside to elevate her slightly. He then commenced to have penile/ vaginal intercourse over a period of approximately two minutes. He can be observed to be pushing forcefully and Complainant 1 can be observed to flinch. During the sexual intercourse, a second camera being held by Complainant 4 can be observed filming in close proximity to the genitalia of the accused and also his sister. During the intercourse both the accused and Complainant 1 appear to give instructions to Complainant 4 to obtain a tube of lubricant which can be seen to be handed to Complainant 1. The complainant used the lubricant and appears to rub it in her own vagina as well as on the accused’s penis. Thereafter the sexual intercourse continued. The hands of Complainant 4 can again be seen moving to take close up images of the act of intercourse. I am satisfied of the elements of the aggravated act of sexual intercourse pleaded in Count 31 and I find the accused guilty with respect to that count.

COUNT 32

86. This count is again brought for an offence contrary to s 66C(2) of the Crimes Act 1900. It relates to the next discrete sexual activity which took place following a further repositioning. Complainant 1 is observed to get on all fours facing away from the accused who has sexual intercourse with her from behind. This is described as “doggy-style” in the summary of observations in Exhibit Z. During the course of this intercourse, Complainant 4 comes fully into view and continues to film the sexual activity on the second camera. He again places the second camera close to the genitalia of the accused and his sister in order to take close-up vision. The sexual intercourse in this position continues for approximately 1 minute 20 seconds. I am satisfied beyond reasonable doubt that the elements of the charge pleaded of aggravated sexual intercourse with a person under 14 years and under the accused’s authority is clearly made out. There will accordingly be a verdict of guilty with respect to Count 32.

COUNT 33

87. This count is brought with respect to an offence under s 66C(2) of the Crimes Act 1900. It alleges a further separate act of aggravated sexual intercourse. The accused is observed to lie on his left side whilst Complainant 1 lies effectively at right angles away from him with her body facing away from the accused’s head and towards the direction of his feet. Her legs are apart and her right leg effectively straddles the torso and right leg of the accused. In this position the penis of the accused is openly visible to the angle being filmed by the camera, as his penis enters the vagina of the complainant. The arm of Complainant 4 can clearly be seen holding the second camera in close proximity. Intercourse in this position continues for approximately one minute and the accused can be observed thrusting his penis at a rapid rate. I am satisfied beyond reasonable doubt of the elements with regard to Count 33 and I find the accused guilty with respect to that count.

COUNT 34

88. This count is again an allegation contrary to s 66C(2) of the Crimes Act 1900. After the intercourse described with respect to Count 33, the accused is clearly seen to give instructions and to roll away from Complainant 1 and lie on his back. At his obvious direction, she straddles him facing towards the camera and away from his face and inserts his erect penis into her vagina. She is then seen to lean forward in such a position as to provide a clear view to the accused of his penis entering her. In that position the accused takes the second camera from Complainant 4 and can be seen filming his penis in the act of sexual intercourse from close proximity whilst he holds the second camera himself. The sexual intercourse in this position again continues for a period of time approaching one minute. The accused can be observed to return the second camera to Complainant 4 and appears to give him further instruction regarding filming. Following that instruction, he can also be seen giving clear direction to Complainant 1 to sit upright whilst continuing to engage in intercourse and holding on to the rafters in the roof above her head so as to fully expose the front of her body to the fixed camera which was filming.

89. The act of intercourse relied upon in respect of this count in the indictment is clearly established as are the other requisite elements and I am satisfied beyond reasonable doubt of the guilt of the accused with respect to Count 34.

COUNT 35

90. This count is yet a further count under s 66C(2) of the Crimes Act 1900. Following the above activity, the accused clearly instructs Complainant 1 to stand up. She turns and faces the accused who remains lying flat on his back. In this yet further position she is seen to hold his penis and to insert it into her vagina. After approximately 40 seconds of quite vigorous sexual intercourse, Complainant 1 is observed to get off the accused and sit on her backside, looking down at her vagina. I am satisfied beyond reasonable doubt of the essential elements of the allegation in Count 35 and I find the accused guilty with respect to that count.

91. Counts 28 to 35 which I have described above and in respect of which I have found verdicts of guilty in each case, encompass the sequence of physical acts depicted in the Video File 1 commencing with the inciting, and followed by seven separate acts in different positions of sexual intercourse with Complainant 1. Notwithstanding the detailed activities described above during the filming of the approximate eight minutes of video file one, and the activities of Complainant 4 in filming it, there does not appear to be any specific count in the indictment, as presented, relating to the sexual activity occurring in the presence of Complainant 4, nor relating to him being used as a cameraman. There is a procuring count embracing the first two video files, counts 60 and 61, to which I will come in due course.

92. In the circumstances of the existence of the physical video and the clear images of Complainant 4’s involvement in a filming of the sexual activity which are in evidence by virtue of a fixed camera, the involvement of Complainant 4 in what can clearly be seen in video file one forms part of the material with respect to tendency evidence relevantly to be considered with respect to other charges, and relevantly with respect to allegations brought by Complainant 4.

VIDEO FILE 2 (ALSO CONTAINED ON EXHIBIT Y)

93. I turn now to the second video file which, based on the properties recorded with respect to the thumbnail images, would appear to have been filmed a little less than 24 hours after the vision in Video File 1. Complainant 1’s hair is arranged in a hair elastic slightly differently than in the first video.

COUNTS 36 TO 37

94. Video File 2 commences with vision of Complainant 4 lying naked, flat on his back with an erect penis. The vision clearly reflects Complainant 1 looking towards the camera and towards the accused before then commencing to place her brother’s erect penis into her mouth. She continues with this act of fellatio for a short period of time while the accused moves clearly into camera view and lies down beside Complainant 4. The accused is, as he had been in the first video file, completely naked. This first portion of vision on Video File 2 forms the basis for Count 36 and Count 37 in the indictment.

95. Count 36 charges the accused with inciting Complainant 1 to have sexual intercourse with Complainant 4, he being between the ages of 10 and 14, and in circumstances of aggravation, namely that Complainant 4 was at the time under the authority of the accused. This is a charge brought pursuant to the provisions of s 66C(2) and s 80G of the Crimes Act 1900. Count 37 is in identical terms relating to the inciting of Complainant 4 to have sexual intercourse with Complainant 1, she similarly being between the ages of 10 and 14, and in circumstances of aggravation, namely that Complainant 1 was at the time under the authority of the accused.

96. These two counts focus on the inciting of a person to have sexual intercourse with another person. The victim in a crime thus pleaded is, in my view, the person with whom the sexual intercourse takes place, not, as a matter of legal principle, the person incited. Accordingly, the relevant age regarding the commission of the offence is the age of the “victim” and the fact that the “victim” was the person under the authority of the accused is the relevant aggravating element. This understanding of the legal principles by me led to amendment of the original indictment as to which my judgment of 27 February 2018 relates. I am satisfied that the elements of these two offences are established beyond reasonable doubt and there will accordingly be verdicts of guilty with respects to Count 36 and Count 37.

COUNT 38

97. This count is preferred pursuant to s 66C(2) of the Crimes Act 1900 in circumstances of aggravation. Video File 2 next depicts Complainant 1 committing fellatio upon the accused while keeping her left hand on her brother’s penis. Her brother and the accused are lying side-by-side with Complainant 1 in between them. This action continues for a short period of time until the accused gesticulates that Complainant 1 should turn around and straddle his body in such a fashion as to enable him to proceed with an act of cunnilingus, while she performs fellatio upon him.

98. This initial period of fellatio between Complainant 1 and the accused is the basis of the aggravated sexual intercourse charged against the accused pursuant to s 66C(2) and comprising Count 38 in the indictment. I am satisfied beyond reasonable doubt of the elements of that offence including that she was under the authority of the accused. He is found guilty of Count 38.

COUNTS 39 AND 40

99. The accused having indicated that Complainant 1 should turn around in the fashion I have described above, Count 39 relates to the ensuing act of cunnilingus of the accused upon her while Count 40 relates to the simultaneous act of fellatio by Complainant 1 upon the accused.

100. Each of those simultaneous acts of what are legally defined as sexual intercourse are clearly established beyond reasonable doubt, as is the aggravating circumstance that she was under his authority. The accused is found guilty in respect of both of those counts.

COUNTS 41 AND 42

101. These counts are brought under s 66C(2) and s 80G of the Crimes Act 1900. Following the above actions, the accused can then clearly be seen to indicate by pointing that Complainant 1 should move across and participate in a similar act of mutual cunnilingus and fellatio with her brother. Complainant 1 then stands up and moves across and positions herself on her brother, Complainant 4, who is still lying on his back alongside his grandfather. She positions herself on top of her brother such that she can perform fellatio upon Complainant 4 whilst he is performing cunnilingus upon her.

429. She gave evidence about receiving many texts from him in which he described the friend of his being involved as a modelling agent and that the friend, in fact, owned a modelling agency. Complainant 6 was told by the accused in these messages that she could make a lot of money. In due course, she had endeavoured to retrieve the text messages from her phone to show to police. However, she had not been able to do so as she had changed both SIM cards and the phone by that stage. She said that she felt very uncomfortable about the request for a bikini photo. She had discussed it with a girlfriend at school and had not sent such a photo to the accused. She said that she had told her parents about the text messages and also the request for the bikini shot after she had been told about the arrest of the accused.

430. A photograph was retrieved, amongst others, from a memory card in the possession of the accused which depicted Complainant 6 wearing a black singlet top and shorts. She was shown this photograph and indicated that the photograph was taken on an occasion when the accused came in and took a photo of her in her bedroom. It was tendered and became Exhibit LLL. I note that the properties attached to the thumbnail image of that photograph indicate that it was taken on 16 October 2014 at approximately 3.22pm. The timing and date of that photograph coincides with the evidence from BL1 (her father) regarding the 21st birthday celebrations in October 2014. That thumbnail may also tend to suggest that as at that date at least, the time and date in the relevant camera must have been set accurately.

431. The request by the accused via an SMS message to Complainant 6 for her to send a photo of herself in a bikini was corroborated by evidence called from a school friend. The school friend of Complainant 6 had been shown the message while they were at school. She recalled the description of somebody who was someone’s stepdad doing renovations at Complainant 6’s home and she saw the message, which she said was along the lines of: “Hey (Complainant 6), just wondering if you could send some bikini photos, a friend of mine is, like, a model person.” The school friend told Complainant 6 that she should tell her mother about the request and she observed her friend to delete the messages from the phone. The school friend maintained that one of the text messages she saw said: “Don’t tell your mum.”

432. Complainant 6’s mother was also called to give evidence. She confirmed that the renovation and rebuilding of the carport area was in about February 2013. Her recollection was that the renovations went for a period of about two months until early April. She had not heard any suggestions of a complaint from her daughter Complainant 6, prior to finding out about the arrest of the accused in June 2015.

433. Following the allegations against him being made public, she then asked both of her daughters about their relationship with the accused. It was at that time that Complainant 6 made complaint about having received the numerous text messages on her mobile phone number after the accused had advised Complainant 6 that her parents had said that it was okay for her to provide her mobile number. I interpolate that they had, it would appear, given no such permission.

434. The accused, according to the complaint that Complainant 6 made to her mother, had asked to take a picture of her which was subsequently retrieved as a contact picture for use in his phone. She told her mother of the request to send a photo of herself in a bikini and about the messages about him having connections with a modelling agency. She also told her mother of the offer of beer on occasions when she had been in the caravan.

435. It is appropriate to note in passing that, elsewhere in the course of the trial, Complainant 1 and 4’s father gave evidence of an occasion when he had the opportunity of looking through images on the accused’s phone. On that occasion he said that he had seen an image of Complainant 2 in a bikini on the mobile phone of the accused. He had subsequently remonstrated with the accused regarding the inappropriateness of having such an image of one of his granddaughters.

436. With respect to the above evidence, I am satisfied that the accused took steps to cultivate a relationship with Complainant 6 in the circumstances she has outlined, particularly in consideration of other tendencies which I have found established in the course of the trial. Such conduct might well fall within a general understanding of the term “grooming” and, as I have indicated, may well fall within the broad concept of that description in other legislation, for example, the Commonwealth Criminal Code.

COUNT 6

444. I am satisfied that a running and jumping game of the kind described by Complainant 6 did occur in the caravan. However, even accepting at full blush her description, teased out by police over very many questions, of a physical interaction and the juxtaposition of her body vis-á-vis the accused, I am not satisfied to the requisite standard that such activity amounts to an assault or to an act of indecency. Count 6 alleges an assault and an act of indecency derived from those circumstances. Accordingly, there will be a verdict of not guilty with respect to Count 6.

COUNT 7

445. Count 7 alleges that between October and December 2014, the accused incited Complainant 6, then being a person under the age of 16, namely 13 years, to commit an act of indecency with him. The facts relied upon in support of that count are the request which he forwarded to her for her to take and send a picture of herself in a bikini to him. In considering the elements of this count and the factual circumstances relied upon, I am satisfied beyond reasonable doubt that the request for a photograph of Complainant 6 to be taken and sent to the accused was, in fact, a request which he made. In considering whether or not the taking of a photograph by a child of herself wearing a bikini and sending it to another person constitutes “an act of indecency.” As Gleeson CJ (with whom Clarke JA and Sully J agreed) in R v Manson (NSWCCA, 17 February 1993, unreported) said:

“An indecent act is one which right-minded persons would consider to be contrary to community standards of decency.”

446. In determining the question of whether or not an act is capable of being construed as an act of indecency, surrounding circumstances including the sexual nature of any text messages, the intention and purpose of the accused, and the ages of the complainant and the accused are all relevant factors to be considered in determining whether a particular act is an act of indecency. The state of mind of the person charged with inciting can also obviously be relevant. As Basten JA said in Eades v DPP (NSW) [2010] NSWCCA 241; (2010) 77 NSWLR 173; (2010) 203 A Crim R 136 at [9]:

“In the present case the applicant was properly charged with incitement, as the act of photographing and communicating the photograph was that of the victim, not of the applicant. However, the purpose of the inciter can be relevant, and may be critical, in characterising the act as indecent or otherwise. For example, an adult male who asks a girl to undress may not be involved in any act of indecency if he is a medical practitioner and she is a patient. On the other hand, even in that circumstance, it would be possible for him to incite an act of indecency if his real motive were not professional, but personal, involving sexual gratification.”

447. In the present matter, the request for a photograph to be taken of Complainant 6 in a bikini and to be forwarded to the accused occurred in the latter months of 2014. The accused, at that time, was approximately 67 years of age and the child from whom he was seeking the photograph of her wearing a bikini, was but 13 years of age. His communications with her were deceptive in the sense that they were communications which commenced and were being undertaking without the knowledge or consent of her parents. She, in fact, had been asked to conceal the fact of the communication from her parents. Together with similar evidence elsewhere in the trial and finding beyond reasonable doubt, a tendency of the accused to act in a sexual way towards young persons, I am satisfied beyond reasonable doubt that the request was indeed an incitement to commit an act of indecency in the sense that that terminology should be understood. In this respect I have had regard to the discussion with respect to what constitutes incitement in the various judgments in R v Chonka [2000] NSWCCA 466.

448. However, a further element of the charge alleged in Count 7 is that it was an incitement to commit an act of indecency with the accused. The terms of section 61N(1) of the Crimes Act 1900 proscribe committing or inciting a person under the age of 16 to an act of indecency with or towards another person. In R v Page (unreported, NSWCCA, 25 November 1991), Campbell J, with whom Gleeson CJ and Mahoney JA agreed, said (at p. 4):

“…the word "with", in a section which is not relevantly different to the one being considered here, involved the participation of two people and that for the act of indecency merely to be directed "against" or "toward" a non-participating person was not sufficient for it to be said that it was committed "with" him."

449. Similarly, in R v Orsos (1997) 95 A Crim R 457 at 460, Grove J, with whom Priestley JA agreed, said:

“…there is a distinction between “with” and “towards”. To commit an act of indecency “with” a person involves two participants whereas logically and grammatically one person may commit an act of indecency “towards” another. It is not necessary in this case to define the limits of activity which might be comprehended by the expressions as the question raised is only concerned with whether there is a distinction between them.

The section therefore in my view establishes different offences and to charge them in a single count would render the count bad for duplicity.”

450. I note that Hulme J in that case reached a contrary view. His Honour was of the view that section 61N(1) creates but one offence. However, the majority decision of Grove and Priestley JJ remains the law in New South Wales.

451. The situation, therefore, in my opinion is this. The directions of law which I must give to myself, as if I were a jury, regarding the distinction between an act being “towards” or “with” an offender requires a clear distinction. Despite the considerable latitude which was permitted earlier in the course of the deliberations which I interrupted to resume the court on 27 February for the Crown to make numerous amendments to the originally-presented indictment as a consequence of the variations and defects contained with it, both as to terminology and pleadings and as to dates, no amendment was sought to Count 7.

452. Consequently, and dealing with the count as pleaded, and despite my findings factually with respect to the actions of the accused being an incitement to commit an act of indecency, I cannot be satisfied that a request to send a photographic image to the accused constitutes an act “with” the accused. In accordance with numerous cases involving similar factual circumstances that would be an act “towards” the accused, I return a verdict of not guilty with respect to Count 7.

Mr Crown, unless I have overlooked something I think that deals with all of the counts in the indictment.

CROWN PROSECUTOR: Yes, your Honour, that seems to be all the counts on the indictment.

HIS HONOUR: Where do we go from there?

CROWN PROSECUTOR: Your Honour, the only other matter is a date for sentence.

DISCUSSION AS TO SUITABLE DATES

ADJOURNED TO FRIDAY 8 JUNE 2018 FOR SENTENCE

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APPENDIX 1 – TABLE OF VERDICTS

COUNT	VERDICT
Count 1	Guilty
Count 2	Guilty
Count 3	Guilty
Count 4	Guilty
Count 5	Guilty
Count 6	Not Guilty
Count 7	Not Guilty
Count 8	Guilty
Count 9	Not Guilty as charged; Guilty on statutory alternative under s. 66C(2)
Count 10	Not Guilty as charged; Guilty on statutory alternative under s. 66C(2)
Count 11	Not Guilty as charged; Guilty on statutory alternative under s. 66C(2)
Count 12	Guilty
Count 13	Guilty
Count 14	Guilty under s. 61O(1)
Count 15	Not Guilty
Count 16	Guilty
Count 17	Guilty
Count 18	Guilty
Count 19	Guilty
Count 20	Guilty
Count 21	Guilty
Count 22	Guilty
Count 23	Guilty
Count 24	Guilty
Count 25	Not Guilty
Count 26	Guilty
Count 27	Guilty
Count 28	Guilty
Count 29	Guilty
Count 30	Guilty
Count 31	Guilty
Count 32	Guilty
Count 33	Guilty
Count 34	Guilty
Count 35	Guilty
Count 36	Guilty
Count 37	Guilty
Count 38	Guilty
Count 39	Guilty
Count 40	Guilty
Count 41	Guilty
Count 42	Guilty
Count 43	Guilty
Count 44	Guilty
Count 45	Guilty
Count 46	Guilty
Count 47	Guilty
Count 48	Guilty
Count 49	Guilty
Count 50	Guilty
Count 51	Guilty
Count 52	Guilty
Count 53	Guilty
Count 54	Guilty
Count 55	Guilty
Count 56	Guilty
Count 57	Guilty
Count 58	Guilty
Count 59	Guilty
Count 60	Guilty
Count 61	Guilty
Count 62	Guilty
Count 63	Guilty
Count 64	Guilty
Count 65	Guilty
Count 66	Guilty
Count 67	Guilty
Count 68	Guilty
Count 69	Guilty
Count 70	Guilty
Count 71	Guilty
Count 72	Guilty
Count 73	Guilty
Count 74	Guilty
Count 75	Guilty
Count 76	Guilty
Count 77	Guilty

Amendments

31 July 2018 - paragraph [26] - changed "Complainant 2" to "Complainant 4"

Decision last updated: 31 July 2018