R v Neil Duncan

[2024] NSWDC 435

District Court

New South Wales

Medium Neutral Citation:

R v Neil Duncan [2024] NSWDC 435

Hearing dates:

3, 4, 5, 6, 7, 11, 13, 14 June 2024;
5, 26 July 2024.

Date of orders:

9 September 2024

Decision date:

09 September 2024

Jurisdiction:

Criminal

Before:

McGuire SC DCJ

Decision:

Multiple verdicts of guilty. For verdicts see [376]. For orders see [377].

Catchwords:

CRIME — Child sex offences — judge alone — complaint evidence — tendency evidence.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Bauer v R [2018] HCA 40

Fleming v The Queen (1998) 197 CLR 250

Gilham v R [2012] NSWCCA 131

Jovanovic v R (1997) 42 NSWLR 520

Liberato v The Queen (1985) 159 CLR 507

R v Markuleski (2001) 52 NSWLR 82

Waldron v R [2023] NSWCCA 128

Category:

Principal judgment

Parties:

Rex (Crown)
Neil Duncan (Accused)

Representation:

Counsel:
Crown: Mr W Martin (Solicitor Advocate)
Accused: Ms T O’Rourke
Solicitors:
Crown: Office of the Director of Public Prosecutions (NSW)
Accused: Aulich Lawyers

File Number(s):

2020/317451

Publication restriction:

There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainant referred to as RN or other witnesses referred to as OO, HU, SC, KB, PN, MM, ES, Z or L.

JUDGMENT

Introduction

1. The accused, Neil Duncan, is charged with two counts of offences alleged to have been committed on the complainant RN. The accused, a horse enthusiast, is alleged to have committed the offences against RN, who was 13 or 14 years old at the time, while horse riding and camping in the Kosciuszko National Park in 2019.

2. The matter, which proceeded before me as a judge alone trial, is a re-trial of the two counts following a trial in the District Court sitting at Queanbeyan. At the first trial, which related to offences alleged by RN and four other complainants, the accused was acquitted in relation to two offences alleged by RN (the “acquittal counts”) and the jury was hung in relation to two other offences alleged by RN. It is those two other offences in regard to which the accused is being re-tried.

3. On 3 June 2024 the accused pleaded not guilty to the following two counts on the indictment.

Count 1:   Between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, did intentionally touch sexually RN, being a child then between the age of 10 and 16 years, namely 13 or 14 years old. [s 66DB(a) of the Crimes Act 1900]

Count 2:   Between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, did intentionally touch sexually RN, being a child then between the age of 10 and 16 years, namely 13 or 14 years old. [s 66DB(a) of the Crimes Act 1900]

Directions of law

4. The legal directions which I have given myself are attached to this judgment and marked Annexure A, which are also MFI 40 in the trial.

The evidence

5. Evidence in the trial was received in various forms. Police Joint Investigation and Response Teams (JIRT) interviews with child witnesses were played into evidence, the previous evidence given by various witnesses in the first trial was tendered and played into evidence, documents were tendered including some Agreed Facts pursuant to s 191 of the Evidence Act1995 and oral evidence was given by a number of witnesses including further oral evidence by the complainant RN.

6. The Crown case was that at some time in 2019 when the accused went on horse riding and camping trips in the Kosciuszko National Park with RN and (redacted) he sexually touched RN on her breasts (Count 1) and sexually touched RN through her clothes on her genitals (Count 2). It is alleged that the offending occurred at some time in 2019, the date of which RN was unable to give evidence about precisely.

7. It was an agreed fact that RN was born on 8 March 2005. Accordingly she had her 14th birthday on 8 March 2019.

8. Part of the investigative and procedural history of this matter was also the subject of agreed facts including the following:

1. on 23 March 2019 JIRT received a referral in relation to HU;

2. on 11 November 2019 SC made a complaint to the police which was referred to JIRT on 14 November 2019;

3. on 6 November 2020 the accused was arrested and charged with sexually touching SC;

4. on 10 December 2020 JIRT received a referral in relation to RN;

5. on 15 December 2020 OO made a complaint to the police which was referred to JIRT on 31 December 2020;

6. on or about 7 January 2021 the accused was charged with sexually touching OO;

7. on or about 4 March 2021 the accused was charged with sexually touching HU;

8. on or about 20 May 2021 the accused was charged with sexually touching RN; and

9. on 2 June 2022 the accused was acquitted of two counts of sexually touching RN. Those counts, which are the same counts I have previously referred to as the acquittal counts, related to allegations of the accused sexually touching RN whilst she was sitting near a campfire on the same night and shortly before the allegations for which the accused is presently being tried.

RN’s evidence

The JIRT interview

9. RN was interviewed by JIRT on 9 February 2021. At that time she was 15 years old.

10. During that interview RN told the police that she was there to talk to them about a sexual assault on her by the accused.

11. She told the police during that interview about her interest in horse riding. RN told the police during the interview that her mother PN and the accused were friendly. It was an agreed fact that RN was a member of a local pony club and that (redacted) Z and L, as well as the complaint witness OO, were members of that same club.

12. During the JIRT interview RN told the police that the accused taught her a lot about horse riding and gave her a lot of amazing opportunities to ride horses. She explained that the accused would take her, often with (redacted) camping and horse riding in the Kosciuszko National Park. She particularly mentioned to the police camping at a place called Pinch River. It was an agreed fact that Pinch River camping ground is approximately a 200 km drive from the accused’s residence in Bega and approximately a 60 km drive from Jindabyne. RN described the camp site at Pinch River as quiet with two camping areas, one of which she described as being about 800 metres up the road from the other and enclosed with trees. She told the police that when she went camping there with the accused he would usually take her to the more enclosed area.

13. She told the police that she and the Duncans would go to that camp ground with the accused’s horses and would ride horses through the bush, have barbecues and stay the night in swags. She described that initially she had “heaps of fun” during these camping and riding excursions. She said that the accused allowed her to do amazing things including taking her to horse riding competitions, allowing her to ride his horses and taking her into the bush to get new experiences. She described that initially she thought that the accused was somebody she could trust, “kind of like a friend” and that she could talk to him whenever she wanted.

14. The camping and horse riding excursions started in 2017 and continued until 2019. RN described that the accused would drive his LandCruiser from Bega to Pinch River, which she said was just out of Jindabyne, and that she sometimes sat in the front of the car and (redacted) sometimes sat in the back. She described that at some stage the accused started holding her hand as he drove to the camp site and that when he did that she froze and let it happen.

15. RN told the police that during 2017 the accused started touching her and brushing his body past hers. She said that there were occasions when the accused would touch her on the back, shoulders, stomach, bottom and sometimes try to hold her leg. RN told the police that they would go camping in the bush every weekend or every second weekend when there were no horse riding competitions.

16. RN said that on that last occasion she sat in the front of the accused’s car and that he held her hand as they drove to Pinch River. She said that during that journey (redacted), who she said she was pretty sure on that last occasion was Z, was sitting in the back of the car. She said that at that time Z was probably 10 years old and that L was 7 or 9 years old.

17. RN described the setup of the camp. She said that three swags were set up next to one another underneath a tarpaulin which was attached to the accused’s trailer. She described the swags as being pretty close together and that her swag would usually be in the middle, the accused’s swag on her right and (redacted) swag on her left. She said that there was often little room between the swags. The accused brought swags for himself and (redacted). RN said that she brought her own swag.

18. RN said that after dinner, just as it was starting to get dark, she, the accused and Z were sitting around the camp fire when she said he stood up and put his hand down her shirt and massaged or played with her breasts. She said that she got up to get a drink and that the accused then pulled her chair closer to him and then massaged her breasts and stomach (the acquittal counts). She said that the accused’s hands were underneath her shirt and her sports bra and moved in circular motions around her breasts and nipples. She said that Z was also sitting around the camp fire, but could not remember what Z was doing at the time.

19. Later that same night when RN, Z and the accused were in their swags RN said the accused put his hand into her swag and massaged her breasts, bum and around her genitals on the outside of her underpants. She described that she was wearing a pink shirt, blue tracksuit pants, a sports bra and underpants at the time. She stated that she was lying flat and felt the accused put his hand inside her swag, massage her breasts (conduct relevant to Count 1) and then she stated that his hand went down to her “V line” which she described as leading to her vagina (conduct relevant to Count 2). In describing how he touched her bottom, RN said that the accused’s hand was on the outside of her clothes and was moving “kind of like drawing, I guess with his finger on my bum”. In describing how the accused touched her genital area, RN said the accused’s hand was on the outside of her tracksuit pants and underpants and was moving very slowly and softly. RN said that she felt uncomfortable and that she was too scared at the time to tell him to stop. She said that he stopped after “maybe about an hour or so”. She explained that she was very scared and cornered when the accused was touching her in the swag and said that she felt like she was being treated like a toy and not a human being. RN also described that when the accused touched her she felt confronted and frightened and told the police she did not know what to do. She said that the Pinch River campsite was out of mobile telephone service so she could not talk to anyone.

20. RN told the police that the next day the accused tried to touch her and was always trying to be around her which she said she found scary. RN said that the accused asked her once or twice if she liked it when he touched her and she said “Yes” because she felt that she could not say no and she then walked away from him. She also told the police that the accused had often told her “What happens in the bush, stays in the bush”. RN said that at the time of the interview she understood that to be a reference to what the accused did to her.

21. On the drive on the way home from Pinch River on that last occasion she again sat in the front seat and she said that on the drive home the accused held her hand and rubbed his thumb on her hand.

22. She said that the accused touched her on the breasts frequently when she went camping with him, describing it as “lots of times” but that he would not touch her when other people were there. She said that as she got older and after the last occasion she realised what the accused was trying to do and thought it was “gross”. She said that the accused made her disgusted in herself, feel like she needed to scrub his touch off her and that she decided that she needed to get away from all that and start over. She said that she then decided that she did not want to go to the bush anymore. RN said that the last occasion that she went camping with the accused was in 2019 and that she decided not to go to the bush any more in the middle of 2019. She said that she thought that she would continue to ride his horses at his house and at competitions.

23. When asked if she could say when in 2019 that last camping trip occurred RN responded “not off the top of my head” but then said that she would have been 13 and she thought that it was after her birthday. She had some photographs in her phone on Snapchat taken by her and Z or L which showed what they were doing.

Complaint evidence – complaint by RN to KB

24. RN said that the first person she complained to was KB. She said that she knew that KB had started riding with the accused.

25. RN complained to KB in 2018 or 2019. RN said during the interview that she thought that the complaint to KB was before the last occasion the accused touched her. (It is to be noted that during cross-examination in the present trial RN said that the reference in the interview to the complaint occurring before the last occasion was incorrect.)

26. RN said that she and KB were hanging out at KB’s house and talking about having fun on the weekend and whether or not they could stay over at one another’s houses when KB said “As long as you’re not going to the bush”. In response to that RN said that she did not want to go to the bush anymore because she did not like being there with the accused. She said she then told KB that the accused touched her on her breasts and on her bum.

Complaint evidence – complaint by RN to OO

27. RN and OO knew one another through school and because OO also rode some of the accused’s horses.

28. The JIRT interview records that RN said that she believed that she complained to OO in 2018 after the last occasion when the accused touched her. (It is to be noted that during cross-examination in the present trial RN said that the reference to 2018 in the interview was incorrect, and should have instead been 2019.) She also said that the complaint was after the first time that OO went to Pinch River with the accused.

29. RN said that she was “pretty sure” that she asked OO if the accused put his hand in her swag and touched her. She said that OO said that he did and that RN then told OO that the accused massaged her breasts, touched her bum and stomach and held her hand.

Complaint evidence – complaint by RN to PN

30. RN said that shortly after she first reported the matter to the police she complained to her mother, PN.

31. RN said that she told her mother that the accused had touched her and that when her mother made her explain in more detail she then said that he had touched her breasts, held her hand, and massaged her stomach, V-line and bum.

RN’s evidence during the first trial

32. RN gave evidence at the first trial in May 2022. She was 17 years old at the time.

33. Her JIRT interview was tendered and played as her evidence in chief and she was then cross-examined by the senior counsel who then appeared for the accused.

34. In cross-examination RN said that the three swags were all close together on the last occasion when the accused touched her. She then said that she thought that the accused was lying in the middle and that she was on one side of him and (redacted) Z on the other side. She said that she believed her swag was on his right. She said that the swags may have been overlapping a little and that there was not much gap between them because they tried to get them as close as possible in case of rain.

35. When cross-examined about the zippers on the swags, RN said that she believed that there was a zipper on both sides of her swag. She said that she was in her own swag which she brought herself. When RN was shown photographs of swags that were said to have been brought on the camping trips, she said that the swags shown in the photographs were not hers and repeated that she had brought her own.

36. RN said that inside her swag was a blanket and sheets. When asked about sleeping bags she said that she used to leave the zipper of her sleeping bag undone and use it like it was a doona.

37. When cross-examined about her and Z’s ages she said that she was 12 or 13 years old at the time and she thought Z was 11.

38. In relation to the acquittal counts RN said in cross examination that the accused was initially standing and reaching down the front of her shirt to touch her breasts and stomach and that when she came back after getting a drink she could not recall if the accused was then standing or sitting. She said at that time it was just starting to get dark. She said that while the accused was touching her breasts that he was talking to (redacted) Z about what they were all going to do the next day and where they were going to ride. She also said that Z was talking back. RN agreed with the proposition that Z would have seen the whole incident occur around the campfire but added that she was young and may not have known what was going on. She said that there was no conversation between her and Z during the incident around the campfire.

39. In relation to how long the touching inside the swag occurred for, she was reminded that she told the police in the interview that it went on for an hour. She responded “Yes, that’s what it felt like, an hour.” RN was then taken to her statement of 3 June 2021 in which she said she did not recall how long the touching went on for in the swag. When it was suggested to her that she was making things up she denied it and became upset and started crying. She said she told the police that it went for maybe an hour or so because that’s what it felt like to her when he was doing it. She rejected propositions put to her that the accused did not touch her breasts, that he did not touch her in her swag and that he did not touch her at any time.

40. As RN’s cross examination continued she continued to become visibly upset and was crying, prompting the trial judge in the first trial to give her a break from evidence. After RN’s cross examination resumed she said that the swags were set up with her swag on the outside and the accused’s swag in the middle from what she could remember.

41. RN said that she could not remember exactly how many times she went camping and horse riding with the accused to Pinch River between 2017 and 2019, adding that there were a lot of times. When it was put to her that she told the police in her interview that it was every weekend or every second weekend she said that they went often and she could not give a number but said that it was most weekends. Senior counsel then appearing for the accused then put to RN that there were only three times that she went camping with only the accused and (redacted) at Pinch River between 2017 and 2019. RN denied that suggestion saying that there were more than three times and that they went quite a few times. When cross-examined about when in 2019 the last incident occurred, RN said that she thought it was around June 2019 but added that there were dated Snapchat photographs and that she believed those photographs were from a different trip at a place other than Pinch River. RN said that she had sent screenshots of those Snapchat photographs to the police after her interview. She said that she was mistaken about those photographs being at the correct time and place when she spoke of the photographs during the interview.

42. RN said that she could not recall the date on which the last trip happened and the last occasion when the accused touched her and said that she could only remember that it was in the year 2019.

43. When cross-examined about there being no mobile coverage at Pinch River she said that if she did have coverage she would have telephoned her mother or her father. She said that she was so young she did not have any idea what the accused was doing or why it was happening.

32. On the topic of her complaint to her mother, RN said during cross-examination that she told her mother that the accused had sexually assaulted her when they were in the bush and told her that he had massaged her breasts, her stomach and that in her swag he had done the same thing. RN said that she told her mother after she told the police because she did not know how to explain it or what to say to her mother.

33. When cross-examined on the topic of her complaint to OO she said that they had known one another for 9 or 10 years through primary school and through the pony club and that she was aware that in 2019 OO was competing on one of the accused’s horses named Dynamite. RN agreed with the proposition that OO was upset when the accused told her that she could no longer ride Dynamite and that Z would be riding that horse instead. She also agreed that OO had told her that she had wanted to purchase Dynamite or have it purchased for her. She agreed that OO complained to her that the accused gave her horses to train and that once trained he would then give them to (redacted) to ride. RN agreed that during her complaint to OO that she told OO “most things” that the accused had done to her.

34. Towards the end of her cross-examination she was asked questions about her complaint to KB. She agreed that the complaint to KB was not until March 2020. RN denied the proposition that she and OO got together and decided to make up stories about the accused inappropriately touching them. In response to that proposition RN said “no, definitely not.”

RN’s further evidence during this trial

47. In further oral evidence during the present trial RN said that she chose to first complain to KB because they had become really close and she felt comfortable bringing it up with her. She said that at the time she felt overwhelmed with what was happening to her. RN said that she had known KB at the time for possibly six months or a little longer.

48. RN said that she chose to tell OO because OO had just started riding with the Duncans and she thought that OO had just gone to Pinch River the weekend before. RN said that she was worried that what the accused had done to her would also happen to OO. She said that she felt that she needed to tell OO because she was a good friend and she would need to know if she went to the bush with the accused.

49. RN described having told her two closest friends she felt like a weight had been lifted off her shoulders, but that what the accused had done to her was still lingering in her head.

50. RN said that after telling KB and before telling OO that she would have gone on a trip or two with the accused, but that after she told OO and once OO started riding with the accused RN stopped going. She said that she continued going on trips with the accused after telling KB because the accused had previously told her that she was in a safe place and told her that she was like a daughter to him. She said that the accused had made her feel loved and comfortable and that she treated him like a father figure. She described feeling that although she thought she could trust the accused and felt loved by him, she felt like she was in a very grey area, adding that it was hard not to feel loved by him but also thinking “why is this happening to me?”

51. RN said that she reported the matter to the police after she had spoken to a counsellor at Headspace and that, through counselling, she felt comfortable to report the matter. She said that she was in her counsellor’s room at Headspace, she believed OO was also there at the time, when she made an online report to the police over a computer.

52. She said that she decided to tell her mother after the police rang her following the online report because they told her that they would pursue her complaint. She said that she previously did not know how to tell her mother because she was friends with the accused’s wife but that having reported it to Headspace and the police she built up the courage to be able to tell her mother.

53. In relation to the Snapchat photographs RN said those photographs were taken in late 2018 on a different camping and horse riding trip that she had gone on with the accused and Z. She said that the date shown on that photograph, 22 December 2018, and the details showing that it was taken in the Snowy Mountains in New South Wales were correct.

54. In cross examination RN said that she believed that she stopped going on horse riding trips with the accused at about the same time when OO started going with him. She said that she thought that that was after her birthday on 8 March 2019 and about the middle of the year in 2019.

55. When cross-examined about the frequency of the trips with the accused, RN clarified that in the interview the reference to every second weekend or every weekend was in the context of the earlier statement to the police that it was on weekends when there were no competitions and nothing else to do. She explained in cross examination that she would attend pony club competitions, zone competitions, Gymkhanas and school competitions and go to Pinch River with the accused and Z on weekends when there were no competitions. RN was then shown a folder of photographs showing her, often in the company of the accused and one or other of (redacted), at various competitions and Gymkhanas during 2019 and various other dated photographs in 2019. When it was put to RN that she attended certain competitions and Gymkhanas on certain weekends she often agreed, sometimes said she was unsure and occasionally disagreed about attendance at a particular place on a particular date. The bundle of those photographs became Exhibit 5 in the proceedings.

56. When cross-examined on the topic of the acquittal counts around the campfire, RN agreed that at about the time of the allegations relating that to those acquittal counts it was starting to get dark but was still mostly daylight. She said that the campfire was lit at the time. She agreed with the proposition that in the Kosciuszko National Park, in wintertime, the sun sets at around 5 o’clock or 6 o’clock in the evening. When RN was shown her statement dated 29 May 2024 she agreed that in that statement she described that at the time of the incident around the fire it was not dark and that the fire had only just been lit. RN stated that the fire had only just been lit and that it was lit before it started to get dark so that when it was dark the fire was warm and they could sit around it.

57. When cross-examined about the position of the swags, RN said that when she said in the interview that her swag was always in the middle that that was incorrect. She described that the position of the swags changed from visit to visit that she was not always in the middle and she was not always on the outside. She said that the accused’s sleeping bag was usually in the middle. RN agreed that she understood what the word “always” meant.

58. RN gave evidence that she was unaware of the accused getting out of his swag in the middle of the night to stoke the fire. She said that as far as she was aware the fire would go out overnight and the accused would start it again in the morning. RN said that she was unaware of the accused getting up multiple times during the night.

59. RN disagreed with the suggestion in cross examination that there was no overlapping between her swag and the accused’s swag and agreed that the tarpaulin underneath which their swags were set out was about 6 meters x 9 meters. She said that she had drawn the diagram, exhibit O, to show the relative positions of the swags not to show the overlapping. She described that the accused’s swag was on top of hers but was just overlapping. When shown photographs and a video of the Duncans’ swags RN said that she would use their swags only occasionally if she had not brought hers. She described her swag as having zippers on both the left and right sides and that it came with poles that could be used to build it up, saying that she did not use those poles.

60. RN restated that on the last occasion when the accused touched her, her swag was on the right and the accused’s swag was in the middle. RN said that she had zipped up the zippers on her swag but had left the sleeping bag unzipped and was using it like a doona. When cross-examined about her statement of 29 May 2024 it was drawn to her attention that in that statement she said that the accused had unzipped her sleeping bag and that she had always zipped up the sleeping bag. RN agreed that that statement was inconsistent with her evidence about using the sleeping bag like a doona. She said both were true and explained that she had been on so many trips to the bush with the accused that she got that mixed up. When cross-examined about her understanding of the word “always” RN said that she uses that word for a lot of things and that that was just how she said things. She said that she often uses the word “always” when she means “like nine times out of 10”. At that stage of the cross examination RN became upset and was visibly crying requiring the court to adjourn. RN agreed that during the JIRT interview she did not tell the police that the accused had unzipped the sleeping bag and that she did not say that during the first trial. She rejected the proposition that she did not previously say that the accused had unzipped her swag because it was untrue.

61. When cross-examined about SC (one of the witnesses later called by the Crown relevant to tendency) RN said that she knew her through other friends and their common interest in horse riding. RN said that she and SC were friends in 2019 and 2020. Initially RN gave evidence that she first became aware that SC made allegations about the accused touching her just before or around the time she went to court for the first trial. When it was put to her that she became aware of that part of SC’s allegation that the accused had unzipped her swag RN responded that she had no idea of any detail of what had happened between SC and the accused. RN said that she was not even aware that SC had gone to the bush with the accused much before the first trial. When she was cross-examined about telling a counsellor at Headspace in December 2020 that she believed that the accused had assaulted SC, RN said that she did not remember saying that.

62. In relation to her complaint to KB, RN confirmed that KB was the first person that she had told. When it was pointed out to her that in the police interview she told the police that she complained to OO in 2018 RN stated that that reference to 2018 was incorrect and that she spoke to OO in 2019.

63. RN then said that it was incorrect that her complaint to KB was before the last occasion when the accused touched her during a camping trip. RN said that she believed that she spoke to KB after this incident. RN repeated that she told KB before she told OO and before she told a counsellor at Headspace.

64. In relation to her complaint to OO, RN said in cross examination that she spoke to OO about all the allegations concerning the accused including the last occasion when he touched her in her swag.

65. RN agreed that she, (redacted) and the accused attended Gymkhanas, sporting events and other riding carnivals regularly on weekends throughout the year. RN agreed that the accused was the president of one of the pony clubs near where she lived in 2019 and into 2020, that the accused’s wife Angela Duncan was the treasurer and that RN’s mother, PN, was the secretary of that club.

66. It was suggested to her that there were not any weekends in 2019 where there were any camping trips involving just her, the accused and Z at Pinch River. RN rejected that proposition saying “you’re wrong”. RN said that the trip when the accused touched her in the swag for the last time was probably at the start of 2019. She disagreed with the proposition that her evidence on that topic was untrue.

67. In re-examination RN said that she had repeated year 10 at school and then left school at the end of year 10 to become a childcare worker.

68. She said that before she gave the statement on 29 May 2024 she was not given an opportunity to refresh her memory by reading her previous statement or the previous evidence. She also said that before giving her evidence at the first trial she did not have an opportunity to read the transcript of her JIRT interview with the police or to watch the video of that interview.

69. When re-examined on the topic of when the last trip with the accused occurred in 2019 RN said that would have happened before the serious riding competitions had started, adding that the serious competitions started in about March of each year. She said that the trip when the accused touched her in the swag on the last occasion would have happened before the start of those serious competitions and at the start of 2019.

Evidence of KB

70. KB gave evidence in the first trial on 5 May 2022, at which time she had known RN for 5 years. She said that she and RN had a conversation in early March 2020 at Cobargo Park during which RN told KB that she had to tell her something. KB asked RN what was happening and RN told KB “about a camp she went on”. KB said that during this conversation RN “told me that Neil had touched her under her shirt and on her lower stomach near her V line”. KB said that she pushed for RN to tell someone about the incident. KB said that she and RN spoke again in early 2021 at KB’s house after school where RN told KB that she had told her mother about the incident. KB told RN that that was a big step and RN told her that she had cried, but felt better after talking about it. KB later received a Snapchat from RN saying that the police were getting involved with the situation with the accused and KB responded telling RN that she was proud of her.

Evidence of OO

The JIRT interview

71. OO was interviewed by JIRT on 15 December 2020. At that time she was 15 years old.

72. During her interview OO told the police that she was there to talk to them about being sexually assaulted by the accused. She said that it happened in 2019, stating that she thought the two occasions were on 10 February 2019 and 8 June 2019. She described those as the two major interactions. She said that each of them occurred at Pinch River.

73. OO said that on 10 February 2019 there had been plans for her and all of the Duncan family to go horse riding in the Kosciuszko National Park. She said that at the last minute it changed to being just the accused, (redacted) and OO. She said that when they got to Pinch River campsite the accused set up the swags, putting her swag in the middle. OO said that when they went horse riding that day the accused put his hand on her knee while she was riding and that later that night he put his hand in her swag. OO said that the accused’s hand went up her shirt, he lifted her bra, he put his hand inside her bra and touched her breasts. She said that the accused had his hand in her swag and under her shirt touching her breasts for approximately five minutes. She said that when she told him to stop his response was “Oh, I don’t bite” and then put his hand under her shirt and then started moving it towards her breasts. She said that she told him again to stop, that she felt uncomfortable and then went to the bathroom. OO said that she did not have mobile telephone service, otherwise she would have probably called somebody because she felt scared.

74. OO said that on 8 June 2019 the same thing happened. She said that initially the whole of the Duncan family was supposed to go to Pinch River and it ended up just being her, the accused and (redacted). She said that the trip on 8 June 2019 was for two nights away. She said that on the first night the accused did the same thing with the swags and that he had alcohol. OO told the police that she refused alcohol, explaining she was 13 years old at the time. OO said that when she refused the accused said “oh, you know, it’s just a bit of fun” or something like that and she again refused. She said on that first night the accused stuck his hand in her swag again and touched her breasts, making her feel uncomfortable. OO said that she then zipped up her swag and went to sleep.

75. OO said that on the next night the accused again offered her alcohol. She described that she accepted and drank alcohol that evening. OO described that on that second night when she was in her swag the accused again touched her in her swag, touching her breasts and that his hand was moving down to her pants and was “feeling around down there” causing her to feel uncomfortable. She told the police that she started crying, told him that she was not comfortable and then got into the (redacted) swag and slept the rest of the night with (redacted).

76. OO explained that she had previously met the accused through (redacted) and their common interest in horse riding. She said that she met (redacted) at the pony club in 2017 or 2018, following which they offered for her to ride on their horses. OO said that she rode on a few of their horses and the accused would always try to touch her leg and do random things that she thought were really inappropriate and really gross. She said that the accused would try to get her to go to the bush with him and that she came up with excuses because she did not feel comfortable. OO explained that the accused trained the horses and that she and (redacted) would ride them. She said that she went to the state championships on one of the accused’s horses and the accused also taught her how to ride the horses.

77. OO stated the accused got her to assist in “training up” a few of his horses. She explained that she got sick of him putting her on good horses, having her train them, then give that horse to (redacted) and give OO another horse, which she described as a “crap horse” to train up.

78. OO said that she started riding horses at the accused’s house at the end of 2018 and 2019. She said often that she would stay the night at the accused’s house after she had been riding their horses in the afternoon and evening.

79. OO said that she was able to give the dates for trips with the accused to Pinch River because she had photographs taken at the times.

80. OO said that she also went camping with the accused and her cousin she believed in January 2019 and she thought that that camping trip was to the same campsite. She said that on that occasion the accused was touching her hand a lot which she described as like drawing circles on her hand.

81. OO said that in the car the accused said to her “What happens in the bush, stays in the bush”. She said that he used to say that to her all the time, which she said she later understood was to encourage her not to tell her mother.

82. OO said that 2 months after the accused touched her breasts she told her best friend RN. She explained that she did not really tell her the extent that the accused did it but said that she told RN that the accused tried sticking his hand in her swag.

83. OO said that she had told her mother that the accused stuck his hand in her swag but had not told her all the details.

84. In relation to 8 June 2019 OO said that she remembered that they travelled to Pinch River on a Friday, stayed overnight, rode on Saturday, stayed on Saturday night, rode horses and then returned home on Sunday. OO said that on that occasion there was a friend of the accused who was also at the campsite with his own car and trailer whose name she could not remember. She said that on the first night in June the accused touched her breasts and she then told him to stop. On the second night she said that she felt intoxicated and he touched her breasts and then he tried to put his hand down her pants and was touching down there and she moved away. She described that when the accused had his hand on her breasts under her bra, he fiddled his fingers around and she said it felt gross and uncomfortable. She said that conduct again continued for about five minutes. OO told the police that on that Saturday night she felt intoxicated because the accused had given her a few Vodka Cruiser drinks and that she felt a bit wobbly and woozy. She told the police that the accused had given her the Vodka Cruiser drinks commencing at about 7 o’clock and that she probably had five or six of them before she went to bed that night. She said that that was at about 10 o’clock. She describes when the accused touched her on that second night that he touched her breasts, he then put his hands down her pants, pulling her pants down as she was pulling them back up and holding them up. She said the accused was sticking his hand under her underpants, tried to touch her “down there” and that she felt really uncomfortable and then got into L’s swag and slept the rest of the night with L. When asked by the police if the accused touched her genitals she said that he did for probably about three minutes underneath her underpants.

71. OO said that on the following day, the Sunday, they rode horses and then went home. OO said that when she got home she told her mother that the accused had offered her alcohol and that he stuck his hand in her swag.

72. OO said that she then refused to go back to the bush with the accused and that after the state championships which she said were on 30 September 2019, she stopped riding with him. OO said that she rode on the accused’s horse named Dynamite at the time of the state championships in September 2019.

73. OO said that she only went to the bush with the accused three times and the last time was on 8 June 2019.

Evidence of OO at the first trial

88. OO was 16 years old when she gave evidence during the first trial in May 2022.

89. She gave evidence that she had by that time known RN for possibly seven or eight years.

90. There were a few occasions when she had conversations with RN during which they shared with one another that they thought the accused was “creepy”. OO said that she did not know any details as to what had happened to RN and said that she had not told RN any of the details as to what happened to her, just that the accused was “kind of creepy”. OO added that she could not say with 100% certainty what words were said between her and RN. OO said that she recalled that the conversation was in the context that she had told RN that the accused had invited her to go to the bush and OO then said to RN “Don’t worry, I don’t want to go anyway. I get uncomfortable up the bush.” OO said that RN responded “Yeah, I do too. I didn’t like it.” OO said that she then said to RN “Yeah, Neil’s creepy” and RN replied “Yeah, he is”.

91. When OO was cross-examined by the senior counsel then appearing for the accused in the first trial about the incident on 10 February 2019 OO said that she was scared and uncomfortable and told the accused to stop. She said that if there had been mobile phone coverage she believes she would have telephoned her mother. When asked why she did not then tell her mother when she got home OO became emotional and said that she was scared and embarrassed and felt like she had allowed the conduct to happen. OO rejected the assertion that the accused never put his hand in her swag.

92. She stated that she continued to visit the accused’s house to ride horses after the February trip because she felt comfortable at their house because there were other people around. She said that following the February 2019 trip she stayed over at the accused’s family house in one of the spare bedrooms on some occasions after she had been riding horses at the property.

93. When it was put her that she continued riding the accused’s horses at his house and that she went camping again with the accused in June 2019 OO became emotional. She said that after the June 2019 trip she thinks that she stayed overnight on occasions at the Duncan house, but that she did it much less often than previously.

94. OO said that the swag that she slept in during the camping trips with the accused had been supplied by him. She said she was unsure if there was a zipper down one side or both but said that she did recall that the swag had a zipper. She said she also had a blanket, sleeping bag and a pillow. She was unable say that the sleeping bag had a zipper only on the right-hand side when lying face up in it.

95. OO said she was unsure as to whether her swag was zipped up before the accused touched her on the second trip, but said that she would assume that it was. She said that after the accused touched her on that second trip she zipped it up again and described that as “taking myself further away”.

96. When it was put to her that if the swag had been zipped up the accused would have had to unzip it before he could put his hands into it, OO said that the headpiece at the top of the swag was unzipped and that his hand went in through the top of the swag. She added that she did not remember entirely what the swags looked like and that she could not recall whether the swag was zipped or unzipped. Senior counsel for the accused put to OO that the accused would have to reach out of his own swag, into the top of her swag and then down far enough inside her swag in order to touch her breasts. In response OO said “is that so hard to believe? That he stuck his hand in the top of my swag? I don’t really get what you’re saying.” She then added that her breasts were near the top of her swag so all the accused had to do was reach through the top and go under her shirt in order to touch her breasts. She repeated that her swag and the accused’s were right next to each other.

97. OO said that on the second trip the accused was able to reach as far down into her swag to enable him to touch her underpants and genital area. OO said that she could not recall if L was awake when OO joined her in her swag or whether she tapped her awake before climbing into her swag. OO added that she definitely would have made L aware that she was coming into her swag before she did so. She said that L did not ask her what she was doing at the time. OO rejected the proposition that she never got into L’s swag, explaining that was tight and a bit squishy for both of them to fit in there but that she slept there the rest of that evening to get as far away from the accused as she could.

98. When cross-examined on the issue of the accused supplying alcohol she rejected the proposition that she helped herself to the Vodka Cruisers having seen them in an esky, stating that L was given Coca-Cola by the accused and that the accused offered her, OO, Vodka Cruisers. She restated that the accused offered her five or six Vodka Cruisers, which she drank, on the second night of the June 2019 trip.

99. OO rejected the proposition that the accused never held her hand or drew circles on her hand and she rejected the proposition that he never put his hand on her thigh or her knee when they were riding. She said that the accused touched her in that way both in public and in private saying that it happened everywhere. When giving that evidence she became visibly upset.

100. OO agreed that she started riding the accused’s horse named Dynamite several times a week and said it was possible that she commenced riding that horse in around June 2019. OO also agreed that when the Duncans were away Dynamite stayed at her family’s property and that they took him for her to ride at a Gymkhana. She said that although she was unsure of the dates that it could have been around July 2019. Senior counsel for the accused then put to OO that she liked Dynamite and wanted to buy him. OO admitted that she loved that horse and if her family had had the money she would have liked to have bought him. She rejected the proposition that she asked the accused if she could buy Dynamite saying that she did not remember ever asking to buy him and did not believe that that conversation had happened. When was it put to her that she said to the accused words to the effect of “If I send you to jail you won’t need him and I can buy him cheap” OO became visibly upset and was crying and responded “What?” in an incredulous tone. She added that she would never have said that and that she would never have chosen to confront the accused like that. She added that she did not believe that the conversations put to her had ever happened. OO agreed that she stopped riding the Duncan’s horses because she was getting annoyed because she loved Dynamite so much and had been chucked off him and put on one of the younger horses. She said however that she accepted that because it was their horse it was their decision.

101. In relation to the mutual complaint between her and RN, when senior counsel for the accused put to OO that she had decided to make up stories about the accused touching her OO became visibly upset and said in an incredulous tone “Why would that ever be something that I would make up?” When senior counsel for the accused suggested the motive was that she was sick of him giving her crap horses to ride OO said “This thing has put me through hell” and that it made no sense and that the proposition was absolutely ridiculous. OO rejected the proposition that in 2020 she thought that she could get what she wanted by complaining to people saying that what was being suggested was not correct and that she found it “quite insulting”. During this stage a cross examination OO was visibly upset.

102. OO agreed that that she did not tell her mother how many times the accused put his hand in her swag, that he touched her breasts or that he touched her genital area. OO explained that she did not want to tell her because she felt embarrassed and did not know how she would react. She said she was not ready to speak about the details at the time. OO said she still had not told her mother exactly what had happened to her because it was not something she felt comfortable talking to her about.

103. When asked if she told those details to her friend RN, OO said not that she could recall.

104. OO said that she was aware that RN had been riding horses at the Duncan’s house before she had started and said that she believed that there was a little bit of overlap with her also riding at the Duncans’ house. OO confirmed that the contents of the statement to the police where she said that she thought RN and her both knew that something had happened to them but that they did not want to discuss it with each other and never did, was the truth. She rejected the proposition that RN told her everything that she said the accused had done to her. OO said she did not remember having a conversation with RN where she said those details.

105. OO denied that she contacted RN to try to get her to make a statement. She said that she believed she told RN that she, OO, had made a statement about the accused and that if anything had happened to RN she would not be alone if she also made a statement. OO said it’s possible that they had a conversation to the extent that RN may have asked her if he touched her and put his hand in her swag but said that it was not something that she could recall or give evidence about with any certainty. When it was put to OO that she was lying in a police statement that she never discussed the detail with RN she again became visibly upset and answered, with an incredulous tone in her voice “I wasn’t lying. That was the truth as far as I knew as far as I remembered.” OO added that she was not going to make up a conversation that happened between her and RN and said that she would not lie about her and RN talking to one another about the accused. She responded to the proposition that she and RN had got their heads together and decided to make up stories about the accused with the following answer “What benefits me by doing that?”.

Evidence of TO

106. OO’s mother TO gave evidence at the first trial. TO stated that OO became a member of a pony club at the beginning of 2015. TO said that she knew the accused and his wife through the pony club, having seen them at events from around 2017 or 2018.

107. TO gave evidence that OO began riding the accused’s horses in 2019. TO remembered OO going away with the accused’s family in January 2019 to ride horses in the Snowy Mountains, but said that OO brought her own horse with her on that occasion. After that trip, OO started riding at the accused’s house, which TO would arrange with Angela Duncan. The Duncans would pick OO up from school in Bega to take her to the Duncans’ house to ride horses and TO would pick OO up from the Duncans’ house afterwards.

108. TO said that the second camping trip OO went on was in February 2019 with OO’s cousin, the accused, and (redacted) L. OO then went on a camping trip in June 2019 with the accused and (redacted) L.

109. TO gave evidence that she picked up OO after the camping trip in June 2019. At some time after that trip, OO and TO had a conversation at the bus stop where OO got the bus to go to school. TO said that OO “had always said that Neil was a bit handsy but she always felt like she could deal with it, and then she sort of said that he’s offered her alcohol. And I said “what do you mean?” and she said “Well, he brought Cruisers and he offered me a Cruiser.””. TO asked OO if she drank the Cruiser, and OO told her that she did not. OO then told TO “he tried to touch me but I moved into L’s swag”. TO asked OO if she wanted to make a report, to which OO responded “No, I’m not going through that”. TO said that she then told OO that she should remember what she had told her and record the information in case it came up again later. TO’s evidence was that she did not ask her further about what happened specifically as she “didn’t know how to unpack that” and she “didn’t know how to deal with it”. She said that OO was about to get on the bus to school at that stage and TO did not “want her breaking down”.

110. TO said that after OO told her about the incident with the accused, OO only went away with the accused when Angela Duncan was also present.

111. In cross examination, TO said that after the February 2019 trip OO told her that the accused was “creepy” and “handsy” but that “she felt she could deal with it”. She said that OO did not make a complaint to her about anything specific that happened during the February 2019 camp. She also said in cross examination that OO made multiple excuses to not go away with the Duncans when invited between the February and June 2019 trips. TO agreed that in her statement to police she said that OO went camping in February 2019 and that she had no conversations with OO about what occurred on the February 2019 trip.

112. In cross-examination TO agreed that OO rode at the Duncans’ house after the June 2019 trip. She said that OO rode until the State Championships which took place from 30 September to 1 October 2019.

113. TO said that OO “possibly” rode one of the Duncans’ horses on 27 October 2019. She was asked whether OO rode one of the Duncans’ horses again on 3 November 2019. TO said that she did not know of those dates, but that she possibly would have continued riding with the Duncans when Angela Duncan was present.

114. TO said that she did not know whether OO stayed at the Duncans’ house after June 2019, and that she may have done so on occasion. She said that when OO stayed overnight at the Duncans’ house she would share a bedroom with L.

115. TO said that in 2019 she did not allow her daughter to have an alcoholic drink while at home and had no recollection of allowing OO to drink alcohol in 2019. She said that OO never asked her whether she could drink alcohol.

116. TO was asked whether OO told her after the June 2019 trip that the accused had put his hand in her swag, to which she responded that OO had “alluded to it”, then saying that “she did say his hand in her swag”. TO agreed that OO had told her that she moved into L’s swag to get away from the accused and that she had been offered alcohol.

117. TO agreed that there were several occasions when OO competed on one of the Duncans’ horses named Dynamite between June and October 2019.

118. TO agreed that OO camped with the Duncans on occasions in October and November 2019 when away for competitions, adding that Angela Duncan was also present on those occasions.

119. It was put to TO in cross-examination that she would not have let OO have anything to do with the accused if she thought that OO was in any kind of danger. TO said “I thought she was safe when Angie was there” and “she’s old enough to make the decision to go to the gymkhanas”. She further responded that “if [OO] thought she was in danger and told me she was in danger when Ange was there, then she would not have been going”. She said that she would not let OO be in a position where she believed she was unsafe.

120. TO agreed that she had texted Angela Duncan throughout 2019 through Facebook messenger. She agreed that they texted each other hundreds of times between 10 June 2019 and 24 October 2020.

Evidence of HU

The JIRT interview

121. HU was 10 years old, and almost 11, when she was interviewed by JIRT on 23 March 2019.

122. HU told the police that she was there to tell them about what the accused had done to her.

123. She said that she knew the accused because (redacted) was one of her best friends at school and that the accused’s wife had offered to do pony club with them. She said that pony club was something that she had always wanted to do. HU said that her mother would take her to the accused’s house to go horse riding. She explained that she had only just learnt how to trot.

124. HU described an incident which she said occurred two days before the interview with the police, on Thursday, 21 March 2019. HU had slept at the accused’s family house on the Wednesday night prior. She said that she was at the accused’s house for horse riding lessons and was near the shed feeding the horses before she and L had to leave for school. HU said that at the time she and L were feeding the horses she saw that the accused was working on the horse float nearby. She said that he was 25 to 50 meters away. HU described (redacted) picked her and L up in her car to drive them to school and that she was sitting in the car.

125. HU said that the accused first asked L for a hug and then told HU to give him a hug as L was running off towards the car. HU said that she was pretty sure that the accused swiped across her breasts with his right arm and right hand, that his arm made circles and then he dragged his arm down and then touched her right breast. She said that his hand moved around in circles like he was trying to feel her breast and then went down and squeezed it. She said that that conduct occurred for only two seconds. HU described that at the time she felt “very uncomfortable” and then after the hug the accused told her to have a good day. At the time, HU was wearing a school uniform with a crop top underneath and the touching was on the outside of her clothing.

126. HU then marked on a diagram where she said the accused touched her that morning placing a circle on the right breast area, on her waist area and around her stomach area. HU described that that touching all occurred on the outside of her school uniform.

127. HU said that she told two of her schoolfriends, MM and ES. She said that she believed that she told them during recess that same day and that after she told her friends she reported to a teacher. HU told the police during the interview that she told her friends that the accused “started getting touchy on me” and that they told her that she needed to report that to a teacher or her parents. She said that they went and told a teacher Mr Shannon at recess on that same day. HU recalled that she told Mr Shannon that the accused “started getting touchy on me” and that Mr Shannon told her to stay away from the accused and to tell her parents.

128. When HU was then questioned by the police about the next incident and the timing of her complaints, she then said that her complaint to her friends and the teacher was on the Friday, the day after the incident.

129. HU said that after school on the Thursday she and L went back to the accused’s family house and got on a quad bike to get horses from the paddock. She said that at that time she had changed out of her school uniform and was wearing jodhpurs and a T-shirt. HU said that L was driving the quad bike, she was sitting behind L and the accused was sitting next to her on her left hand side. HU said that on the way back from the paddock the accused put his arm around her and put his hand up her shirt. At that part of the interview HU pointed to her lower rib area. HU said that the accused’s hand went inside her shirt and touched her on the skin near her waist. She marked on a diagram which became part of exhibit E where she said the accused touched her on that occasion. HU said that when he did that with his hand under her shirt, she told him to stop and he responded “It will be alright (H), it’s fine.” HU said that she continued to tell him to stop but he did not until they both got off the quad bike. HU said that she wanted the accused to stop touching her because she did not feel comfortable.

121. HU also told the police that she had been invited by the accused’s wife to go camping and horse riding with the accused in the bush that weekend. HU said that the invitation was made before the accused started touching her and that after the accused touched her she told her mother that she did not want to go to the bush anymore. She said that she understood that the people that were to go on that trip that weekend were the accused, L, her and a guy whose name she could not remember. HU said that when L asked her why she was not going anymore HU told the police that she said that her mum had to talk to (redacted) about why she was not going.

HU’s evidence at the first trial

131. At the time she gave evidence in the first trial, HU was 14 years of age. In her evidence HU said that she had no doubt that the accused had hugged her and touched her in the way she described. She denied the proposition that the accused’s hands were greasy because he had been working on the horse float at the time. She said after she had been hugged and touched by the accused there was no dirt or grease on her uniform.

132. HU denied propositions put to her that the accused did not hug her or L.

133. HU said that she complained first to schoolfriends MM and ES and they reported it to a teacher Mr Shannon the following day Friday, 22 March 2019. She said that she had initially got her days mixed up when she told the police that it had been reported to the friends and the teacher on the Thursday. HU said that when she spoke to Mr Shannon she had a good memory of the hug and that she told Mr Shannon that the accused had hugged her from behind and rubbed one of her breasts. HU said she did not think that Mr Shannon was writing down what she told him at the time. She said that she told Mr Shannon everything. She also said that she told ES and MM what the accused had done and that she told them both at the same time. HU rejected the suggestion that she did not tell MM and ES about the hug. She disagreed with the suggestion that she only told MM that the accused had tried to touch her breast.

134. When cross examined about the incident on the quad bike, HU rejected the proposition that the accused was sitting behind her. She said that she was sitting behind L with both her legs on the right side of the bike and the accused was on her left hand side with his legs on the left side. HU rejected the suggestion that the accused reached around her in order to hang on as they were going over a bump, stating instead that the accused put his hand up her shirt. HU then added that she tried to pry his hand away but he would not move it. She agreed that that was the first time she told anyone that she had tried to pry his hand away. HU agreed that in May 2019 she telephoned (redacted) and asked if she could speak to the accused. She said that she then spoke to the accused. She rejected the suggestion that during that conversation she said to the accused that she wanted to apologise for what she had said and asked if she could come back. HU said that she telephoned and asked to speak to the accused to apologise because of an incident that occurred one day when they were riding and a horse ran off, saying that she felt responsible because she did not try to stop it.

135. HU agreed that in April 2020 she texted (redacted) asking if she could go over to the Duncan family house and that that visit did not occur because it was during the COVID lockdowns. HU agreed that she contacted (redacted) again in September 2020 asking if she could come over and ride (redacted) because the lockdowns had ended.

136. Photographs of the quad bike were tendered by the accused and became exhibit 4. Those photographs show large foot wells on each side and wheel arches over each of the rear tyres and a seat and metal rack at the back of the bike. One of the photographs shows Z and L sitting side-by-side towards the back of the quad bike, one with both of her legs over the left wheel arch into the left foot well and the other with both of her legs over the right wheel arch and into the right foot well.

Evidence of MM

MM’s JIRT Interview

137. MM participated in a JIRT interview on 17 April 2019. In that interview, MM told police that she was in the same class in school as HU and that they were friends. MM said that she had a conversation with HU about HU going to the accused’s house for riding lessons, in which HU told her that the accused had tried to touch her breast and that later that day when they were on the quad bike the accused put his hand up her shirt and started to touch her. MM said that HU told her that she asked the accused to stop but he did not and that he told her that it was okay. MM said that HU then started to cry. MM said that she and ES told HU that it was not acceptable and they then told a teacher Mr Shannon about the incident.

Evidence of MM at the first trial

138. In cross examination MM did not agree with the suggestion that during the conversation in which HU told her and ES about the incident with the accused, she only told them about the incident on the quad bike and that she did not tell them about the accused “touching her boob”.

JIRT interview of ES

139. ES participated in a JIRT interview on 17 April 2019. In that interview ES told police that she attended the same school as HU and that they were in the same class in year 6 at the time. ES said that on a Thursday during recess HU told her that when she and the accused were on the quad bike he put his hand up her shirt, she told him to stop and then the accused said, “It’s okay”. ES said that HU had told her that this had occurred when she stayed at the Duncans’ house the day before, on the Wednesday night. She said that this conversation took place in March 2019, around two or three weeks before the end of the school term.

140. ES said that HU had told her earlier in the school term that she was going to the Duncans’ house three times a week to learn to ride horses, and that she was at their house to ride horses when the incident occurred.

141. ES said that HU was crying during the conversation about the incident. ES said that she and MM said to HU that she had to go with them to tell the teacher. ES said that HU told them that she did not want to tell anybody, but ES and MM then took her to the vice principal’s office, where Mr Shannon spoke to HU. ES said that while HU was speaking with Mr Shannon, she and MM also told their classroom teacher what HU had told them.

142. ES told police that HU did not tell her that anything else happened with the accused other than the incident on the quad bike.

John Shannon’s evidence at the first trial

143. John Shannon gave evidence on 9 May 2022. In his evidence, he stated that on 22 March 2019 he was approached by HU in the company of MM and ES after lunchtime. He said that he was in his office when HU, MM and ES asked to see the school principal, who was not on the premises, so they saw Mr Shannon.

144. Mr Shannon asked MM and ES to leave and spoke to HU alone in the principal’s office. HU told him that the accused was her horse-riding teacher and that he had done something inappropriate. Mr Shannon told HU that he would need to report this. Mr Shannon said that HU then told him that the day before she had been at the Duncans’ property on a quad bike. She said that she was at the front and the accused had put his hands inside her shirt and that he later asked for a cuddle and made HU feel uncomfortable.

145. Mr Shannon gave evidence that HU also told him that she was going to be invited to the Duncans’ house for a sleepover or a party and she did not know what to do about it.

146. In relation to the quad bike incident, Mr Shannon further described that HU told him the accused put his hands on her sides. She did not give any further details about either incident.

147. Mr Shannon then told HU that he would need to tell her mother about this and he would need to make a report. Mr Shannon and HU met with HU’s mother to tell her that HU had made a disclosure to him which he would need to report, and that she should speak to HU to decide what to do about the upcoming party she had been invited to by the Duncans. Mr Shannon then informed the school principal that he would need to make a mandatory report, and called the Child Protection Hotline. He was contacted a few days later by a detective, and some time later he made a statement.

148. In relation to HU’s demeanour when making the complaint, Mr Shannon said that she was “pretty agitated”.

149. In cross examination Mr Shannon agreed that he was aware of his mandatory obligations to report any allegations of child mistreatment. He agreed that he made notes in a notebook straight after the event which reflected what HU told him. The notes also reflected that HU told him she was invited for a camp-out sleepover.

SU’s evidence at the first trial

150. SU gave evidence on 5 May 2022. SU said that she is HU’s mother and that in 2019 HU was school friends with (redacted). She said that HU went to (redacted) house in early March 2019 for horse riding lessons. SU picked HU up from these lessons at the Duncans’ house on occasion, which was when she first met the accused and his wife. SU exchanged text messages with Angela Duncan relating to HU learning how to ride horses and going to pony club.

151. SU gave evidence that she arranged for HU to sleep over at the Duncans’ house on Wednesday 20 March 2019. At that time, she also exchanged messages with Angela Duncan about HU going on an overnight trail ride and camping in the Snowy Mountains with the Duncans. SU said that she believed the sleepover on 20 March 2019 was HU’s first overnight stay at the Duncans’ house. HU brought a bag with her to school for the sleepover on Wednesday morning and was picked up after school on Wednesday by Mrs Duncan. HU stayed at the Duncans’ house on Wednesday night, and was to go horse riding before school. HU was to then go back to the Duncans’ on Thursday afternoon to do more horse riding. SU picked up HU from the Duncans’ house on Thursday afternoon. SU gave evidence that when she picked up HU from the Duncans’ house on Thursday, HU said to her that she did not want to go on the upcoming trail ride with the Duncans as she had a scare with a horse.

152. SU gave evidence that she picked HU up from school on Friday 22 March 2019. SU said that on this occasion, HU got into the car and told her “Mum, I have to tell you something. You know how I went to (redacted) house on Wednesday? Well, (the accused) did something to me on the Thursday”. SU stated that HU proceeded to tell her that in the morning, the accused requested a hug from her and his arm brushed against her breast during the hug and that during the afternoon when they were on a quad bike the accused put his arm around HU and put his hand under her shirt. SU said that her daughter told the accused to stop but he did not. SU and HU then spoke to Mr Shannon.

SC’s evidence at the first trial

153. SC was 15 years old when giving evidence at the first trial.

154. SC gave evidence that she recalled going camping with the accused and (redacted) L between 7 and 10 November 2019. SC said that they went camping to Pinch River. SC said that they left for Pinch River on Friday 7 November and that they travelled in the accused’s car with his horse float and horses.

155. SC said that when they arrived they unloaded the horses and put their swags out underneath a tarpaulin. She said at first her swag was set up on the outside but that the accused told her and L to move the swags so that SC’s swag was in the middle.

156. SC said that after they had set up camp it started to rain so they went for a drive in the accused’s car. SC said that they drove on a rough road to a cabin and that L had to get out of the car to open a gate to get to the cabin and that when she was out of the car the accused reached behind the driver’s seat and touched and rubbed SC’s leg. She said that he touched her leg with his hand in a rocking motion between her ankle and her knee and that that conduct lasted for about a minute and that when L got back into the car the accused stopped touching her leg.

157. SC gave evidence that later that day after they had dinner around the campfire she and L went to bed into their swags. She described the swag she was using as one that had been supplied by the accused. She said that she understood that the one she slept in was the one that belonged to the accused’s wife. She said that it had a zip on the left-hand side. SC described her swag as in the middle of the three with L’s swag on her right and the accused’s swag on her left.

158. She said that at about 8 o’clock that evening the accused got into his swag. She said that at the time it was dark. She said that after he had got into his swag he then unzipped hers. She described that he unzipped it halfway down and then put his hand inside her swag and underneath her shirt. She said that the accused’s hand initially went onto her stomach, then his hand moved up, his fingers went underneath her bra and touched her breasts. SC said that after about 20 seconds she rolled over onto her right hand side to stop the accused touching her. She said that after she had rolled over the accused zipped her swag back up and that she did not get any sleep that night.

159. The following day SC said that the accused apologised and said “I hope you are mature enough to keep this between you and I”. She said that she nodded her head in response. After that conversation SC said that she, the accused and L had breakfast, saddled horses and then went for a ride through the bush. She said that ride took the whole day and that when they returned to the campgrounds some friends of the Duncans were also at that same campground. She described the friends as being a boy named Toby and his father. SC said that that evening the accused told her that he had wanted to give her a pink drink but said that he could not give it to her then because there were other people around. She said that she did not understand at the time what he was talking about.

160. SC said that after dinner at the camp fire they sat around the fire for a bit on their phones. She said that they had eaten dinner at about 6 o’clock because it was starting to get dark and that after dinner she rugged the horses and she and L went to bed at about 8 o’clock. She said that the friend of the Duncans had their own camp site and a horse crate which was about 20 meters away.

161. SC said that the accused and his friend stayed up a bit longer drinking around the campfire. She said that the accused went to bed at about 9:30 pm and that she was awake at the time because she and L had been playing on their phones. She described that they were playing games but that she did not have any telephone service.

162. SC gave evidence that when the accused went to bed he got into his swag, which was on her left hand side, then unzipped her swag from the top to about halfway down, he then placed his hands inside her swag and she gave evidence that he then rubbed her “private area” through her jeans. When asked if she could say what the private area was she said “I’d rather not” but then described it was at the front of her body, on the bottom half of her body and that he was rubbing the outside of her jeans. She said that that continued for about 10 minutes and that the accused was using up-and-down and circular rubbing motions. SC said the while that was occurring L was in her swag on SC’s left hand side and that as far as SC could tell L could not see what was going on.

163. SC said the next day she, the accused, L and the friends all had breakfast together then all went for a ride which lasted the whole day. After they returned from that ride she said that the accused drove her and L back towards Jindabyne. She said that was at about 4 o’clock in the afternoon. SC said that when she got to Jindabyne she texted her mother to arrange to be picked up.

164. SC said that the accused touched her in the same place, which she described as her “private parts”, on both nights of that camp. SC marked a circle on a diagram to indicate where on her body the accused had touched her. That diagram, which became exhibit L, was marked by SC with a red circle around the genital area.

165. During cross-examination SC said that she was sure that the accused rubbed her leg in his car before the first time he stuck his hand into her swag. SC’s attention was then drawn to some notes which she had made before she first spoke to the police in which she said that the accused put his hand into the swag under her shirt and rubbed her private area and that he apologised the next day and that it was after that they went for a drive in the rain and the accused rubbed her leg.

166. SC denied the suggestion that there was no rubbing of her leg in the car.

167. It was suggested to her in cross examination that the pink drink that was referred to was a raspberry flavoured drink. She said that she did not drink raspberry flavoured soft drink. She agreed that she told the accused that she was not allowed to drink Coca-Cola. When she was asked if she was allowed to drink alcohol she responded “I was 12, so, no.” SC rejected the suggestion that the accused had referred to bringing raspberry soft drink for her and L, stating instead that he referred to “pink drinks”. She said the accused did not offer her any raspberry flavoured soft drink on the camp. She said that she did not recall later telling her mother that the accused told her that he had brought raspberry for the girls to drink. She also said that she did not remember saying to her mother that she drank raspberry soft drink all the time. She said she did not remember her mother saying to her that the raspberry drink might have had alcohol in it. SC said she had told her mother about the accused offering her a pink drink and then mentioning that he could not give it to her because other people were around.

168. SC said in cross examination that on the morning after the accused put his hand in her swag on the first night she got out of her swag in the morning, went to the toilet and that when she came back she was crying. She said that when she came back crying L did not say to her what’s wrong with you or why have you been crying and L did not ask her if she was okay.

169. SC agreed that she told her mother that she was terrified after the accused touched her and when asked if she remained terrified for the rest of that weekend she answered “for the rest of my life”. SC said that she had never told L what the accused had done to her.

170. SC agreed that in the swag that she had borrowed the zipper was on the left. She agreed that inside her swag was a blanket and also a sleeping bag and that she was inside the sleeping bag, which was inside the swag, on both of the nights of the camp. When shown photographs and a video of swags owned by the Duncans, SC said that she did not remember if the swags shown in those items were the swag that she slept in.

171. SC said that the sleeping bag which was contained inside her swag was not zipped up because she did not like being in confined spaces. SC also said in cross examination that the accused set his own swag up at the start of the camp and told her to put hers in the middle. SC disagreed that L was lying on the swag next to the accused on both nights, stating instead that the accused was on one side of her and L was on the other side.

172. On the second night of the camp SC said that the accused unzipped her swag, put his hand inside her swag, and touched her for about 10 minutes. She said that she tried turning to get away from him but that he kept touching her. She said as far as she was aware L was not awake at the time. When it was put to her that she had told the police that L was on her phone the whole time playing games, SC said that she could not remember. She admitted that when the accused was touching her she did not try to get L’s attention.

173. SC rejected the proposition that the accused never put his hand in her swag and that he never touched her.

310. It was accepted that it would not take much of an effort for an adult male, of the accused’s approximate height, to reach over the swag of a child and undo a zip on the opposite side or that it would not take much of an effort for an adult male to reach down into the top of a swag and a sleeping bag. It was submitted that the position of zips was relevant only if RN or one of the tendency witnesses was using both one of the Duncans’ swags and one of the Duncans’ sleeping bags on the basis that Mrs Duncan’s evidence established that the zippers on their swags and sleeping bags were on opposite sides of one another. It was submitted that that would require an unzipping on opposite sides first of the swag and then of the sleeping bag. It was conceded however that the defence were not submitting that it was physically impossible for the accused to have placed his arm and hand inside any of the swags, regardless of the number or position of the zippers.

311. It was submitted that there was a significant inconsistency between SC’s evidence and L’s evidence in that SC said that the morning after the alleged sexual touching she was crying and yet L gave evidence of never being aware of her crying. Although counsel for the accused accepted that SC’s evidence was not that she cried in front of L, it was submitted that L did not see any physical signs of crying at any time.

312. It was submitted that even if the court were satisfied that the evidence of OO, SC and HU established the tendencies asserted by the Crown, any finding of those tendencies was insufficient to cure the deficiencies in RN’s evidence.

313. It was submitted that the jury in the first trial must have entertained concerns about the reliability and credibility of RN’s evidence in order to acquit the accused of those acquittal counts. Accordingly it was submitted that this court, in giving the accused the full benefit of the acquittals, and applying the legal directions set out in annexure A, would not be satisfied beyond reasonable doubt as to RN’s reliability or credibility in relation to the counts on the indictment.

314. It was submitted that the court would have reasonable doubts in relation to the commission of both of the offences and the accused accordingly should be found not guilty of each offence.

The directions of the law

338. In considering the evidence and the submissions summarised above I remind myself of the legal directions which I have given myself, a copy of which is attached to this judgment and marked annexure A.

Assessment of witnesses

339. I find that HU was an honest and reliable witness. Despite her youth I am satisfied that her recollection was accurate in significant respects. She impressed me as sweet, innocent and not prone to exaggeration or embellishment. She gave her evidence in a compelling fashion.

340. SC impressed me as an intelligent, honest and straightforward witness. I found her to be measured when giving evidence even of a confronting and traumatic nature and I found her not to be prone to embellishment. I found her reluctance to describe the parts of her anatomy, which she initially described as her “private area” and later described by marking the genital area on an illustration of the female body, as consistent with her innocence and age. Her description that the accused’s conduct caused her to feel terrified, not just on that camp, but for “the rest of my life” was compelling.

341. My assessment of OO was that she was a reliable, accurate and honest witness. She gave her evidence in a measured and reserved fashion and made appropriate concessions. She gave no indication that she was prone to embellishment. Her emotional responses at various points in her evidence were appropriate and understandable in light of her age and the confronting nature of many of the propositions put to her. I found that her evidence of her immediate reaction to the conduct alleged in becoming emotional, crying, scared, embarrassed and feeling as though she was somehow responsible is entirely consistent with common features of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by such a victim.

342. I find that RN was an honest and reliable witness. Despite some issues with her recollection of some details and despite some inconsistencies in her evidence, I am satisfied that her recollection was accurate in significant respects. She gave her evidence in a compelling fashion and with an understandable degree of emotion. That emotion is understandable in the context of her age when the alleged incidents occurred and the nature of the conduct alleged.

343. Each of the witnesses who gave evidence in the nature of complaint evidence as outlined above, KB, MM and ES did so in an honest and straightforward manner. I find that each gave evidence to the best of their recollection as to complaints made to them.

344. Turning to witnesses called in the defence case.

345. I accept that L and Z each gave evidence honestly concerning their recollections. However, their evidence did not greatly assist, particularly in relation to events that occurred when L was absent and at night when Z was likely to be asleep.

346. In relation to the accused’s wife Angela Duncan I find that she made appropriate concessions and that she did not deliberately give false evidence. However, her evidence had significant limitations largely because she was not present at any of the relevant camping or horse riding weekends and because she was unqualified and unable to explain the Telstra telephone and data records.

347. I find that, although the accused’s mother-in-law Mrs Treadwell did not deliberately give false evidence, her evidence of her recollections that she did not recall seeing anything unusual during an unremarkable morning when she picked up HU and L and drove them to school does not greatly assist the court.

Determination and findings of fact

348. I have carefully considered the evidence given by the accused. I take into account the directions I have given myself contained in annexure A in relation to assessing witnesses, including the accused and the proper approach to assessing the evidence of an accused witness.

349. The accused’s account which is summarised above and in annexure A, effectively are denials of sexually touching RN in the way she alleges, denials of saying to RN “What happens in the bush, stays in the bush”, and denials of being a sexually interested in RN. I found his evidence to be unsatisfactory and unconvincing. His evidence that it was impossible for him to have touched RN in her genital area because his arm was not 2 meters long was particularly unimpressive and impacted negatively on his credibility. I found it equally telling against his credibility that he gave evidence that it was impossible for him to have touched the bottom of a young girl at about the same time he is alleged to have touched her genital area because she must have been lying on her back and that would have been impossible, or so he said in his evidence, for him from that position to have also touched her bottom. It defies credibility that an adult man’s hand could not easily slip underneath the small of a young girl’s back in order to then touch her bottom even when she was lying on her back.

350. The accused’s evidence in relation to denials that he touched RN in her swag because of the position of and the number of zips that he would have needed to have undone also impacted negatively on his credibility. His evidence that he never hugged children including (redacted) and the later change in that evidence as reflected in the pretext telephone calls with SC’s parents also impacted negatively on his credibility. His assertion that he never said to RN “What happens in the bush, stays in the bush”, can also not be accepted. His denial of saying that to her flies in the face of the evidence that he said it regularly and frequently including to other children and in the absence of any evidence suggesting that RN may have heard that expression from any other source.

351. I found the accused’s evidence to be unsatisfactory and unbelievable in numerous other respects, including his evidence in relation to the tendency witnesses. The only aspects of his evidence which I find in his favour are in relation to the acquittal counts, in relation to which I give him the full benefit of his acquittals and his evidence that he went camping with RN and Z in 2019 because that evidence is supported by and consistent with other evidence.

352. It follows from my rejection of the accused’s evidence as honest or reliable that I must therefore put his evidence to one side. It remains that I must still examine the evidence in the Crown case to determine whether or not I am satisfied that the Crown has established the accused’s guilt beyond reasonable doubt of either of the counts.

353. Having separately considered the evidence of each of the tendency witnesses OO, HU and SC, I find that any inconsistences in their accounts were not of such significance for me to doubt the reliability or accuracy of any of them. I am satisfied that their evidence was true and unaffected by contamination or collusion. There was no evidence that any discussions amongst any of the tendency witnesses and RN contained such detail that it would contaminate them to enable them to give such detailed and varied accounts. To the extent there were inconsistencies or vagueness in some of their evidence, they were on topics that were not of significance and tangential to proof of the charges and not such as to impact on their credibility or reliability. Given their ages at the relevant times, it is entirely understandable that each remembered specific details about the sexual touching, but not tangential details. Their delays in complaining, or in not providing details when they did complain, are common features of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by such a victim. That is particularly so in this case because of the power imbalance and the age disparity between the accused and each of the tendency witnesses and RN, and because each of them was reliant on the accused to be able to continue to engage in the horse riding opportunities which the accused offered them and which they each enjoyed so much.

354. Accordingly, I find on the basis of the evidence of OO, HU and SC that the accused had the following tendencies:

1. a tendency to have a particular state of mind, namely a sexual interest in female children; and

2. a tendency to act on that in a particular way namely by sexually touching female children.

355. I have considered the evidence of the complaint witnesses KB and OO.

356. I am satisfied that evidence has established that RN complained to KB. I find that RN’s complaint was prompted by KB saying “as long as you’re not going to the bush” and that RN responded with some detail including that she did not want to go to the bush anymore because she did not like being there with the accused and then telling KB that the accused had touched her on her breasts and on her bottom. The absence of any detail in that complaint about the accused touching her on her genital area is unsurprising in the context of RN’s age at the time and her reluctance to talk about the topic and is not such that causes me to doubt the accuracy or reliability of the complaint evidence.

357. I also accept that evidence has established that RN complained to OO. Notwithstanding the inconsistencies in the account of OO compared with the account of RN I am satisfied that the complaint was made. Differences in recollection of those two witnesses are entirely understandable in the context of their ages and the subject matter of the conversation. OO’s response to propositions put to her in cross examination in the first trial that she was making up stories in conjunction with RN, during which she became visibly upset and incredulous, was entirely believable and supported her honesty, reliability and credibility.

358. Because I am satisfied that the evidence established that RN complained to KB and OO, in accordance with the directions in annexure A, I must then consider the way in which that evidence can be used. In the circumstances of the complaints I am satisfied that the evidence is relevant as additional evidence that RN was sexually touched in the way that she described and I accept that evidence as relevant to the truthfulness of RN’s evidence of the sexual touching that she gave in court. The complaint evidence makes it more likely that RN is telling the truth about having been sexually touched by the accused. In so finding I am satisfied that RN acted in a way that I would expect her to act if she had been touched in the manner she alleges. The timing of RN’s complaints, what she said, the circumstances in which she said those things and the way she appeared when making the complaints are all relevant matters which I have taken into account.

359. In addition I take into account the evidence of complaint to KB and OO as relevant to support the truthfulness of RN’s evidence. I find the fact that RN complained when she did and in the circumstances in which she did makes it more likely that she is telling the truth about having been sexually touched by the accused in the manner alleged. As I have already indicated I consider that any differences between RN’s account and the evidence of the complaint witnesses are not so significant that they adversely impact on RN’s truthfulness, accuracy or reliability.

360. Turning to the evidence of whether the accused had an opportunity to offend as alleged in the period set out in the indictment, I have very carefully considered the evidence of Mrs Duncan and the evidence tendered through her of telephone records and data records. I accept the submission made on behalf of the accused that those records do not rise to the level of impossibility. That submission was correctly made because of the absence of expert evidence explaining those records. I also accept as correctly made the concession by counsel for the accused that the telephone and data records do not amount to evidence of alibi.

361. My finding in relation to whether the accused had an opportunity to offend during the period referred to in the indictment can be summarised as follows.

362. The accused gave evidence at the first trial in 2022, which was played in this trial, that he did attend Pinch River with RN and Z in 2019, although he could not say when in 2019. It is relevant in my view that when he gave that evidence in 2022 it was only three years after the alleged events occurred in 2019. Angela Duncan gave evidence in the first trial that she knew that RN went camping with her husband and (redacted) during 2017, 2018 and 2019, although she said that she was unaware of the precise dates when those camping trips occurred. Mrs Duncan also gave evidence that she was aware that camping trips involving only her husband, RN and (redacted) occurred at Pinch River.

363. Mrs Duncan’s review of calendars, photographs, phone records and other data and her colour-coded calendar which became exhibit W do not amount to alibi evidence for the whole of 2019. Notwithstanding her work in compiling that calendar, Mrs Duncan herself accepted that there were times in 2019 when her husband could have been camping with RN and Z and she conceded that it was possible that they did so. As the Crown’s summary of phone records in exhibit V establishes, there were three weekends in 2019, namely between 1 and 3 February 2019, between 14 and 16 June 2019 and between 9 and 11 August 2019 when there were considerable periods of time during which there is a complete absence of telephone calls made or received or text messages made or received by the accused or Z. Mrs Duncan conceded that she was unable to explain the absence of phone and text communications for those periods and she conceded that it was possible that for those periods the accused and Z were out of phone service at Pinch River. Mrs Duncan was unqualified and completely unable to explain what the defence submitted were patterns arising from data downloads and uploads on the mobile telephone over those same periods. In addition I find that the accused’s opportunity to engage in the offending conduct during the indictment period is supported by the evidence of RN in relation to the photographs of 22 December 2018, namely they were not taken at Pinch River and the occasion at Pinch River when RN alleges the accused touched her was the last time that she went camping with the accused. I accept that that evidence, which I find to be honest and reliable, establishes that the occasion relevant to the present allegations of sexual touching must have occurred after 22 December 2018.

364. I also accept RN’s evidence that the last occasion she went camping with the accused, and the occasion when she alleges he sexually touched her, roughly coincided with when OO commenced going into the bush with the accused which she said commenced in February 2019.

365. Further support for the accused having an opportunity to offend as alleged during the indictment period comes from the evidence of Z who gave evidence at the first trial that to the best of her recollection she went camping with the accused and RN at some time in 2019.

366. In light of those findings and the substantial and significant limitations on the data evidence obtained from Telstra by Mrs Duncan, I am satisfied that the Crown has established the accused had an opportunity to engage in the offending conduct as alleged during 2019 and in particular on one of the three date ranges in 2019 referred to in exhibit V.

367. Turning to the evidence of RN I take into account the directions in annexure A relating to the evidence of a critical witness.

368. In considering RN’s evidence and in giving the accused the full benefit of the acquittal counts, I find that the acquittals establish that the jury in the first trial could not have been satisfied of RN’s allegations relevant to those counts beyond reasonable doubt. However, the jury’s failure to be satisfied beyond reasonable doubt of those acquittal counts does not cause me to doubt the credibility or reliability of RN’s evidence in respect of the charges on the present indictment.

369. In relation to RN’s evidence of uncharged acts, admitted for the limited purpose of context evidence, I take that evidence into account on the limited basis set out in annexure A as providing a basis upon which the court can better understand the evidence of the alleged touching relevant to the counts on the indictment and to establish that the allegations did not come out of the blue, had been ongoing for some time and had escalated in seriousness over time. I accept the context evidence on that basis. I also accept that that evidence goes some way to explain RN’s delay and reluctance to complain.

370. I have examined the evidence of RN very carefully and having done that I am satisfied beyond reasonable doubt that RN was a credible, reliable and truthful witness and I have satisfied myself that I can safely act upon her evidence to the requisite standard.

371. I have also satisfied myself that the evidence of RN is unaffected by contamination, concoction or collusion and that her evidence is not unreliable.

372. On the basis of RN’s evidence as supported by other evidence in the trial I find the following facts:

1. In 2019, when she was 13 or 14 years of age, RN was an enthusiastic horse rider. She knew the accused and his family through her mother, a shared interest in horse riding and membership of the same pony club.

2. The accused befriended RN and provided her with opportunities to ride horses including in the Kosciuszko National Park.

3. The accused took RN and (redacted) on camping and horse riding trips to Pinch River at various times in 2017, 2018 and 2019.

4. On numerous of those trips the accused engaged in physical contact with RN including holding her hand, brushing his body past hers and touching her back, shoulders, stomach, bottom and leg.

1. On the last occasion RN went camping with the accused they went to Pinch River with (redacted) Z and during the car journey the accused held RN’s hand.

2. The accused’s swag was next to RN’s swag on the last occasion they camped together at Pinch River and during the evening the accused put his hands into her swag and intentionally touched her breasts, stomach and bottom.

3. The accused engaged in that intentional touching for his own sexual gratification.

4. At that same place and on the same evening the accused intentionally touched RN’s genitals through her clothing.

5. The accused engaged in that intentional touching for his own sexual gratification.

6. The accused’s sexual touching of RN caused her immediately to feel scared, uncomfortable, unable to tell the accused to stop and unsure of what to do.

7. The next morning the accused told her “What happens in the bush, stays in the bush”, and in doing so he was pressuring her to remain quiet and to not complain about his conduct.

8. During the drive home from Pinch River the accused held RN’s hand and rubbed his thumb on her hand.

9. The offending conduct did not come out of the blue, in that the accused had touched RN on a number of previous occasions when camping together.

10. The last occasion on which RN went camping with the accused was in 2019 and was the same occasion when he sexually touched her relevant to the counts on the indictment.

11. The accused’s conduct in sexually touching RN caused her to not go to the bush with him again.

12. I find that RN complained to KB and OO and that those complaints were unaffected by collusion or contamination. I take them into account in the way indicated above. I also find that RN was a somewhat reluctant complainant, that her first complaint to any adult in authority was to a counsellor at Headspace, that RN then reported the accused to the police and that, although she did not initially tell her mother because she was embarrassed, she then complained to her mother after the report to the police because they told her that there was likely to be an investigation.

13. I am satisfied that RN’s reluctance to complain, and that her first complaint to any authority figure was to a counsellor at Headspace, are consistent with the way I would expect her to act in circumstances where she was young, frightened and uncertain and in circumstances where the accused had established a relationship of trust with her.

14. To the extent that there are any inconsistencies or vagueness in RN’s evidence I find that those inconsistencies or vagueness are not on matters of any significance and do not adversely impact on my findings that RN was a credible and reliable witness.

15. Although issues such as the position and the number of zips, the precise location of the swags and the duration of any touching are, in my view inconsequential matters that do not impact on my findings above, I am nevertheless satisfied on the basis of RN’s evidence as supported by Z’s evidence that RN was in her own swag at the relevant time, not in a swag supplied by the accused. As I expressed numerous times during the trial the amount of time and attention devoted to tangential and insignificant issues such as the number and location of the zippers and the colour of the swags was disproportionate to the importance of those issues.

16. On the topic of RN’s evidence as to how long the touching occurred for, I accept RN’s evidence that it felt like an hour to her at the time. That evidence was entirely understandable in circumstances where she was frightened and confused while the touching continued.

17. In relation to RN’s use of the word “always” I find that her use of that word does not adversely impact on her credibility or reliability. Rather, I accept her explanation as to her use of that word as indicating something less than 100%. That explanation is entirely understandable and believable in the context of a youthful tendency for inaccurate use of language and hyperbole.

18. My findings of her credibility, reliability and truth were also supported by the appropriate degree of emotion that RN displayed in the witness box and her demeanour generally.

373. I have no doubt that the elements of the count 1 offence have been proved beyond reasonable doubt. I have no doubt that the elements of count 2 offence have been proved beyond reasonable doubt.

374. In relation to count 1, I find that between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, the accused intentionally touched RN, by touching RN on her breasts whilst she was in her swag at the Pinch River campsite, the touching was sexual and RN was then a child between the age of 10 and 16 years, namely 13 or 14 years old.

375. In relation to count 2, I find that between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, the accused intentionally touched RN, by touching RN through her clothes on her genitals whilst she was in her swag at the Pinch River campsite, the touching was sexual and RN was then a child between the age of 10 and 16 years, namely 13 or 14 years old.

376. Accordingly, having regard to the whole of the evidence and taking into account the various directions of law which I am required to take into account and taking into account the extensive submissions by the Crown and the defence, I find the following verdicts:

Count 1:   Guilty.

Count 2:   Guilty.

377. The accused is convicted of both counts.

Annexure A (189821, pdf)

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Decision last updated: 19 September 2024