R v NP

[2025] NSWDC 160

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NP [2025] NSWDC 160

Hearing dates:

7 – 8 April 2025 & 10 April 2025

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Count 1: a verdict of Not Guilty.

Count 2: a verdict of Not Guilty.

Catchwords:

Criminal Law — Special Hearing — section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — Defendant unfit to be tried — judge alone trial — sexual Offences — section 66DC(a) of the Crimes Act 1900 (NSW) — sexual act towards a child under the age of 10 years — section 66A(1) of the Crimes Act 1900 (NSW) — sexual intercourse with a child under the age of 10 years — section 293A of the Criminal Procedure Act 1985 (NSW) —  where Complainant states a lack of memory about alleged offending — where there are inconsistencies between Complainant evidence and complaint evidence

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Criminal Procedure Act 1985 (NSW)

Cases Cited:

Jones v Dunkel (1959) 101 CLR 298

Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Rex (Crown)
Defendant (name subject to Prohibition Order)

Representation:

Prosecution: Mr M. Paish (Counsel)
Defence: Mr M. McAuliffe (Counsel)

File Number(s):

2023/00027964

Publication restriction:

Prohibition Order – s 578A of the Crimes Act 1900 (NSW) applies – names anonymised

Judgment

1. A determination has been made pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) that the Defendant is unfit to be tried. It is common ground that he continues not to possess the ability to give meaningful instructions or to participate in this Special Hearing. By prior order, he was excused from attending due to the advanced state of his physical and mental incapacity. The trial proceeds by judge alone.

2. At the opening of the Special Hearing, the Crown did not concede that the manifestation of his mental health issues had occurred at the time of the offending. Nevertheless, no expert medical opinion was placed before the Court on this point.

OVERVIEW

3. The Defendant was born on 17 March 1945. At the time of the alleged offending, he was 77 years of age. He is presently 80 years of age. His second wife, who will be referred to in these reasons as “W”, died in 2009.

4. The Complainant was born on 15 August 2013. At the time of the alleged offending, she was 9 years of age. She is presently approximately 11 ½ years of age.

5. The Defendant is the Complainant’s grandfather. The Complainant’s father, who will be referred to in these reasons as “F”, is the Defendant’s son. F and his brother are the children of the Defendant and his first wife, and were stepchildren of W.

6. At the time of the alleged offending, the Complainant lived with F, her mother and her brother, who will be referred to in these reasons as “X”, as well as a cousin and a grandparent, a short drive from the Defendant’s residence.

7. The Defendant lived with his sister-in-law, who will be referred to in these reasons as “S”. S had resided with the Defendant from 2009. The house was a three-bedroom, freestanding, single-story residence with front and rear yards. At the front of the house, overlooking the front yard through a large window, was the lounge room, the front door and the Defendant’s bedroom. At the rear of the house was a sunroom overlooking the rear yard through large windows and a back door leading to an undercover space and a garage.

8. F regularly visited the Defendant’s property, not uncommonly more than once per week, to perform maintenance duties, including yard work. After completing the work, he would regularly sit with and speak to the Defendant whilst having a drink in the rear yard of the property. On these occasions, he would also check on the Defendant’s welfare. Every 2 to 3 weeks, F would mow the front and rear lawns.

9. F would invite his children, the Complainant and X, to accompany him to the Defendant’s house on those occasions. The limited accommodation of his utility motor vehicle meant that only one of them could usually go. The Complainant chose to go to the Defendant’s house with F more often than did X. When F performed the yard work, including mowing the lawns, the Complainant would generally spend time inside the house with the Defendant. It was customary for the Defendant to give the Complainant, or X, an ice cream and/or a soft drink when they attended his residence.

10. The offending is alleged to have occurred on two separate occasions, several weeks apart, in a period concluding on 29 November 2022. It is said that, on each occasion, when the Complainant and the Defendant were within the house, F was outside mowing.

COUNTS

11. Count 1: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did intentionally carry out a sexual act towards the Complainant, being a child then under the age of 10 years, namely 8 or 9; an offence against s 66DC(a) Crimes Act 1900 (NSW).

12. Count 2: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did have sexual intercourse with the Complainant, being a child then under the age of 10 years, namely 8 or 9 years; an offence against s 66A(1) Crimes Act 1900 (NSW).

ELEMENTS OF THE OFFENCES

13. The Count 1 alleged specific act is that some weeks or months after the alleged Count 2 offending, the Defendant, when in the living room of his home, lifted his shirt to show the Complainant his penis and “balls”. For the purposes of the alleged Count 1 offending, a “sexual act” means an act carried out in circumstances where a reasonable person would consider the act to be sexual. The Defendant did not contest that the act alleged was sexual, nor, if the Defendant committed the act, that it was intentionally carried out toward the Complainant.

14. The Count 2 alleged specific act is that the Defendant called the Complainant into his bedroom, pulled her pants down, pulled his own pants down, leaned over and stuck his penis in her vagina. For the purposes of the alleged Count 2 offending, the meaning of “sexual intercourse” includes the penetration to any extent of the genitalia of a person with any part of another person. The Defendant did not contest that the act alleged was sexual intercourse, nor, if the defendant committed the act, that it was intentional.

VERDICTS SOUGHT

15. The Defendant denies the occurrence of the acts that are the subjects of Count 1 and Count 2. The Defendant seeks verdicts pursuant to s 59(1)(a) of the Act; that is, that the Defendant is not guilty of the offence charged. The Crown seeks verdicts pursuant to s 59(1)(c) of the Act; that is, that on the limited evidence available, the Defendant committed the offence charged.

WITNESS INTERMEDIARY ASSESSMENT OF THE COMPLAINANT

16. At the Ground Rules Hearing, the expert report of Witness Intermediary, Ms Stein, provided the following assessments of the Complainant (which were not contested by either party):

• the Complainant was able to understand and answer questions and statements, including leading/suggestive questions;

• the Complainant was able to use language to clarify and refute statements;

• the complainant was able to understand higher level language e.g., idioms, prediction and inference;

• the Complainant was able to understand time concepts;

• the Complainant was able to concentrate and indicate if and when she felt nervous and monitor her arousal levels;

• the Complainant was able to read without difficulty; and

• the Complainant was able to answer questions putting a factual proposition and asking whether the proposition is true or false.

17. The rules for examination of the Complainant were agreed by the parties, the Witness Intermediary and the Court. In the trial, the Complainant gave oral evidence from a remote place via AVL with the presence of a Support Person and the Witness Intermediary. The trial was conducted in accordance with the Ground Rules.

18. It was my observation that the Complainant gave evidence without confusion concerning the questions that she was asked.

DIRECTIONS

Competence

19. At the commencement of the AVL link, and before she gave evidence, I asked the Complainant questions. From her answers, I determined that she was competent to give sworn evidence about facts: s 13 Evidence Act 1995 (NSW).

20. I direct myself that evidence of the Complainant, on account of her being a child complaining of events alleged to have occurred at the age of 9 and when giving evidence at age 11 ½, was not automatically unreliable on account of her age. She could give truthful and accurate answers to questions.

21. There must be an allowance made for her evidence, on account of her age, of her shorter attention span and limited sophistication compared to most adults. I must consider her personal characteristics which may bear on the issue of credibility amongst the whole of the evidence. In this evaluation, I am to bear in mind the expert opinion assessment of the Complainant’s capacity to give evidence.

Judge Alone Trial

22. As a Special Hearing, the trial is conducted as closely as possible to a jury trial: s 56(1) of the Act. I am to determine alone whether the Defendant, on the limited evidence available, committed the offence charged, or is not guilty: s 133 of the Criminal Procedure Act 1986 (NSW) (“CP Act”).

23. I am compelled to direct myself and am bound by the following directions of law as if I were a jury. However, s 133 of the CP Act does not require me to state all the matters which would have to be stated to a jury, or even all the matters which I have considered in determining my verdicts.

24. A Special Hearing must not prejudice the Defendant any more than his unfitness already may do. His legal representation may raise, on his behalf, any defences a fit person could raise in a normal trial. The Defendant did not give evidence, as would be his right not to do; regardless, he was unfit to testify.

25. At a Special Hearing, the Defendant is taken to have pleaded not guilty to the charges against him. This is unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty. Ultimately, the question for me to answer in relation to each Count is whether, on the limited evidence, the Defendant committed the offence charged at the criminal standard of proof beyond reasonable doubt: s 54 of the Act.

26. A verdict pursuant to s 59 (1)(c) of the Act, that on the limited evidence available the defendant committed an offence charged, constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates: s 62(a) of the Act.

27. I am aware of the consequences of a qualified finding of guilt, on the limited evidence available, pursuant to ss 63-68 of the Act.

Burden and Standard of Proof

28. It is the Crown’s burden to satisfy me beyond reasonable doubt of each element of each Count. Accordingly, I must comply with all principles of law applying to my treatment of the evidence and in my reaching factual findings by which I arrive at my verdicts. I must heed all warnings a jury would have been given had it been empanelled. The Defendant has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I must consider the evidence impartially. If the Crown fails to meet that high onus, the Defendant must have the benefit of any reasonable doubt, and I must return a verdict of not guilty.

Separate Counts

29. I must consider each of the Counts separately toward my verdict. I must bear in mind that the mere fact that I find that the defendant committed one of the Counts does not mean that he committed the other. Conversely, should I find the offence alleged not proved beyond reasonable doubt, that finding does not mean that the defendant is not guilty of the other offence charged.

Markuleski Direction

30. The credibility of the Complainant is the central issue for the Court, and I am mindful of the important substance of the Markuleski direction. If I am not satisfied that the Complainant’s evidence was credible, in that it was reliable, being both truthful and accurate in relation to either one of the Counts, I would have to consider how that conclusion affected my consideration of the other Count.

Central Witness

31. The Crown case is centrally based on the evidence of the Complainant. That is, the Crown case is centrally based on my acceptance that the Complainant gave reliable, truthful and accurate evidence in relation to each of the Counts. As for any case where there is a central witness, it is important that I employ my worldly experience and common sense when assessing my acceptance or otherwise of her evidence, in whole or in part, in relation to each Count. I must remove emotion from my consideration. I must be impartial and not be influenced by personally held views and values. It is irrelevant whether I liked or had sympathy for the Complainant.

32. Unless I am satisfied, on the whole of the evidence in the trial, beyond reasonable doubt, that the evidence of the Complainant in relation to either Count was an honest and reliable account, I cannot find the Defendant guilty on that Count.

Right to Silence

33. As for any accused person, the Defendant was under no obligation to participate in an interview with Police, to give evidence or call evidence in his own case. He was, of course, unfit to give evidence. In a Special Hearing, the Defendant is presumed to be innocent until the Crown has satisfied me beyond reasonable doubt, on the limited evidence, that he committed the offences alleged. That the Defendant did not give evidence or call evidence, other than character evidence, cannot be used against him in any way at all in my deliberations. I will not use that fact to fill any gaps that I might think exist, based on the evidence tendered by the Crown. That he did not give evidence in no way strengthens the Crown case or assists the Crown in proving its case beyond reasonable doubt. I will not speculate about what evidence the Defendant might have given, if at all.

Context Evidence

34. The Crown relies on the Complainant’s evidence of prior acts of sexual misconduct by the Defendant toward her. I bear in mind that the context evidence was admitted solely for placing the evidence of the specific facts alleged in each Count into a realistic and intelligent context. The Crown relies on the context evidence to dispel any wonder or concern I might have had about the likelihood of what would otherwise be apparently isolated acts occurring without any reason or any circumstances to link them in any way.

35. I warn myself that the context evidence was not led to establish a tendency on the part of the Defendant to commit offences of the type prosecuted in each Count. The context evidence does not make it more likely that the Defendant committed either of the offences. It has the very limited purpose I just stated and cannot be used as evidence of the allegation contained in the Counts toward proof beyond reasonable doubt. Further, the context evidence cannot be substituted for the evidence of the specific acts, which are the subject of each Count. I am to consider my verdict in relation to each Count not based on a course of conduct. I am concerned only the particular and precise allegation in each Count. The Defendant cannot be punished for acts otherwise attributed to him.

Inference

36. Drawing inferences does not take up a significant part of the reasoning in this judgement. Nevertheless, the parties have asked me to remind myself of this direction.

37. I remind myself that the evidence is the answers to questions given by witnesses, as well as the exhibits. From that evidence, inferences may be drawn. There is nothing extraordinary about the drawing of inferences from direct evidence to then rationally infer or conclude the existence of a further fact. This being a criminal trial, and the burden being upon the Crown to satisfy the Court beyond reasonable doubt of each element of each Count, means that I should be extremely careful about drawing any inferences.

Audiovisual Link and JIRT

38. Evidence of the Complainant was received by pre-recorded interview (“JIRT”) and orally from a remote place, presented on screens in the courtroom. Evidence of other witnesses was also received by the playing of their pre-recorded interviews.

39. I remind myself that these were standard procedures, and I do not give the evidence received in these fashions any greater or lesser weight than I would evidence received from a witness in the courtroom. I do not infer anything against the Defendant because the evidence was received in these ways.

Support Person and Witness Intermediary

40. The Complainant gave evidence whilst in the company of a Support Person and a Witness Intermediary. I remind myself that evidence given in this way is a standard procedure and I do not give the evidence any greater or lesser weight than I would evidence received by a witness in the courtroom. I do not infer anything against the Defendant because the evidence was received in this way.

Complaint Evidence

41. The Crown relies on the evidence of the Complainant having told three of her schoolfriends about alleged sexual abuse. It is for the Court to determine whether there was a complaint by the Complainant of the events that are the subject of Count 1 and/or Count 2. If the Court determines that a complaint was made, the following direction applies as to how it may be used.

42. The first direction is that the complaint can be regarded as additional evidence the Complainant was sexually assaulted in the way she described. So, not only would the Court have the Complainant’s evidence about the subject events, but it would also have the evidence of the complaint witness of what the Complainant said. The Defence says that the evidence of the Complainant was that she could not recall the description of the Defendant’s conduct, spoken by her to the complaint witnesses. Also, that the complaint witness evidence of what the Complainant said to her friends is so inconsistent with her JIRT that it cannot be accepted as evidence of the specific acts which are the subject of the Counts.

43. The second direction is that the evidence of complaint may be used as evidence of the truthfulness of the Complainant’s evidence in court. The Crown says that the fact that the Complainant did complain to her friends in the way she did makes it more likely that she was telling the interviewing police officer the truth during her JIRT about the specific acts. The Defence disputes this on the same bases as for the first direction.

44. I must bear in mind that just because a person says something on more than one occasion does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

THE CENTRAL ISSUE

45. The parties agree that the central issue in the trial is whether the Complainant’s evidence is credible such that the offending is proved beyond reasonable doubt. Because the Complainant is the central witness and the only witness to give direct evidence of the alleged offences, I must return verdicts of not guilty unless I am satisfied beyond reasonable doubt by her evidence when considered with the whole of the evidence in the trial.

46. I note that there were not only inconsistencies in the Complainant’s evidence, but her evidence bore inconsistencies with the evidence of the complaint witness provided by one of her friends, who I will refer to in these reasons as “Z”.

47. I also note the significance of the Complainant saying during her oral evidence that she could not remember the offending.

Section 293A of the Criminal Procedure Act 1985 (NSW)

48. The Crown relied on s 293A of the CP Act when putting forward its essential position in respect of the Complainant’s evidence in the trial. The Crown argued that the fact that the Complainant said in oral evidence that she could not remember either offence does not lead to a finding that her answers told to the police officer during the JIRT were unreliable, but only to a finding that she was answering only that she did not remember the events at trial that she otherwise remembered at the time of the JIRT.

49. Section 293A provides warnings to discount perceptions of untruthfulness or unreliability of a victim of sexual assault based upon them describing the event differently or inconsistently at different times. The section reminds us of the effects of trauma on victims of sexual assault and the difficulty of speaking the evidence of the event. The trauma would be expected to be even greater when the victim was a 9-year-old child who then gives oral evidence at 11 ½ years, but nothing in s 293A provides a basis for raising the assessment of credibility of a victim witness, such as by filling gaps or suggesting a discount to the witness’s statement that she does not remember the offending.

50. I was particularly mindful of the vulnerability of the child Complainant. The Witness Intermediary did not, and to my observation did not have cause to, seek a break, or intervene. In my view, Defence counsel’s cross-examination was conducted fairly. There was no re-examination on the topic of her inability to remember the alleged offending. As already recognised in these reasons, the expert Witness Intermediary report confirmed that the Complainant understood the concepts and was able to answer in respect of the concepts of truth and falsity.

51. Crown sought to find an explanation or reason behind the Complainant’s answers that she could not recall the offending by pointing to evidence that might be consistent with her wanting to protect F and his relationship with the Defendant. Crown pointed to the evidence of the Complainant having stopped one of her friends from telling F of what the Complainant had said to her other friends at school of sexual abuse, and to F’s evidence that, after speaking to police, the Complainant told F that she had not told him of the events earlier because she did not want to interfere with his relationship with the Defendant: T 63.18-20.

52. The Crown’s submission also rested on the Complainant’s answers that it was false to state that the Count 1 and 2 events never occurred.

53. There are 3 difficulties with these submissions in the context of the Crown bearing the burden of proving the Count 1 and 2 offending being beyond reasonable doubt. Firstly, it is illogical for someone who cannot remember an event to then answer what they earlier said about it was true or false. Secondly, only approximately 2 ½ years had passed from the time of the events to the Special Hearing, and one would normally think that an 11 ½ year old victim would remember such serious sexual offending after the passage of that time. Thirdly, whilst the Complainant answered a leading question during oral examination-in-chief that what she said in the JIRT was the truth (T 40.10), she did not give oral evidence at trial that she had a reliable and accurate recollection of the specific Count 1 and 2 events when answering questions of the police officer during the JIRT, nor, at the Special Hearing, was she asked, or did she give evidence, that she falsely stated she did not recall those events because she wanted to protect F’s relationship with the Defendant.

54. It is possible, of course, to say that the Complainant’s evidence in cross-examination that she could not recall the events of which she spoke in the JIRT might have been affected by some influence, such as wanting to protect F’s relationship with the Defendant. Other hypotheses, such as the Complainant having described events inaccurately which she did not really recall during the JIRT, or having given false answers during the JIRT or in oral evidence for a reason or reasons not identified in the evidence, are also possible. The Crown argument that one of the Complainant’s inconsistent answers (that she could not recall the event but that it was also false to say the event did not happen) is to be accepted raises the suggestion that the other answer was untruthful. People lie for reasons which are sometimes apparent, and sometimes not.

55. The question for determination is not whether the Complainant lied, but rather, whether her evidence, when considered with the whole of the evidence, was credible and satisfied proof of the specific events of the Counts beyond reasonable doubt. The Crown’s submission contains just some among many rival conjectures. In my view, the Crown’s submissions must fail because they invite a choice between guesses and provide no proper basis for overcoming the Complainant’s evidence that she did not recall the subject events of Count 1 and 2 occurring: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at page 305.

56. In my opinion, that the Complainant said during the trial that it would be false to say that neither of the Count 1 or 2 events occurred does not reasonably infer, even when considered with all the evidence submitted during the Special Hearing, that her evidence of not possessing a recollection of the subject events was falsely stated.

57. For the reasons I have set out, I disagree with the following submission put by the Crown (T 109.16-25):

A witness says that a recording of her is the truth. A witness at the time of giving evidence says they have no memory of the event of which the recording was concerned. The witness, when put to them, says the event happened, in other words, I deny that it did not happen. The inference is that whilst the witness cannot remember now what happened, the witness has seen her contemporaneous recording and is merely saying what I said then is the truth. I had no reason to lie, but I cannot remember that event today. This is against, and this isn’t a criticism, but your Honour strongly urged her to consider carefully before answering questions.

58. In the above quoted passage, the Crown was referring to my assurance to the witness that she would not get into trouble for anything she said in evidence. Although I was satisfied with the cross-examination and the performance by the Witness Intermediary, I assured the witness in this manner so that she would be comfortable to say whatever she thought to be the truth without fear of reprisal for the evidence which she might give.

59. I had spoken to the Complainant for some time before her oral evidence of events and with the Witness Intermediary present. My purposes in doing so were, firstly, to engage with the Complainant, attempting to provide a comfortable environment for her in which to give her evidence, and, secondly, to test the Witness Intermediary’s assessment, in order that I might assess her opinion myself.

60. Following the Complainant’s answer that she did not recall the Defendant sticking his penis in her vagina (Count 2), I had the following gently spoken exchange with the Complainant (T 49. 15-40):

Q. Your Pop has never stuck his penis in your vagina?

HIS HONOUR: Just stop for a second.

MCAULIFFE: Sorry, your Honour.

HIS HONOUR

Q. [Complainant].

A. Yeah.

Q. Just understand this, will you? That’s not a question. I saw the intermediary coming. I want you to listen to me, all right.

A. Okay.

Q. You will not be in trouble for telling the truth. You can tell the truth no matter what the truth is, you will not be in trouble. Do you understand?

A. Yeah.

Q. You just listen to the questions carefully and you tell the truth, okay?

A. Okay.

Q. I just want you to be comfortable and know that nothing that you say can get you in any trouble with anyone, okay?

A. Okay.

COMPLAINANT EVIDENCE

Context Evidence

61. The Crown case included that sexual behaviour, the subject of the context evidence, like the Count 1 and Count 2 offending, occurred whilst the Complainant was within the Defendant’s home with the Defendant, S was in her room and F was outside performing lawnmowing and yard duties. The Crown relied on the Complainant’s JIRT evidence of the Defendant’s prior sexual misconduct towards the Complainant to give context to the subject offending.

62. As given during the JIRT and whilst bearing in mind the Complainant’s then-age of 9 years, the Complainant’s evidence of prior sexual misconduct was sufficiently internally inconsistent to warrant serious consideration as to whether it was accurate and reliable. In relation to penile-vaginal intercourse, the Complainant at first said that it happened “lots”, about “10” times from when she was 6 or 7 years of age, but the evidence was then changed to the penile-vaginal intercourse having only happened “once” and “never ever happened any other time”. During cross-examination, the Complainant said that she could not remember any time when the Defendant put his penis in her vagina (see [66] below).

63. Whilst not requiring satisfaction beyond reasonable doubt, in my assessment the context evidence did not establish a prior history of the Defendant having exhibited sexualised behaviour toward the Complainant.

Count 1

64. The cross-examiner made plain to the Complainant, and she answered plainly that she understood, that he was questioning her about her answers given to the police officer during the JIRT. The Complainant had reviewed the JIRT shortly before the trial and she was able to see it again when it was played at the trial. In the below extract from the transcript, the Complainant stated that she remembered telling the police officer at the interview that the Defendant had shown her his penis and balls but then answered that she could not remember those events. I repeat, it is my view that the cross-examination was fairly conducted. This is especially so because the Complainant was provided with the transcript of her JIRT for her to be able to read the questions and answers; she had been assessed by the Witness Intermediary as capable of reading.

65. The cross-examination in respect of Count 1 went as follows (T 45.15-47.02):

Q. Do you remember telling [name] about a time when you were in the lounge room with your Pop, and he showed you his penis and his balls?

A. Yeah.

Q. I’m going to ask you some questions about that time, okay?

A. Okay.

Q. I’m just - the first thing I’m going to do is read something from the interview that we watched, okay?

A. Okay.

Q. You said this, all right?

A. Okay.

Q. “He would pull his pants down and show me his private parts and I tried running away, but he’ll follow me” did you hear that okay?

A. Yes.

Q. Can you remember that happening?

A. No.

Q. Can you tell me anything about that happening?

A. No.

WITNESS INTERMEDIARY: Can I just say something, sorry, your Honour? That, “That” can we just be more specific what, “That” refers to?

MCAULIFFE

Q. I’ll read again part of your interview, okay?

A. Okay.

WITNESS INTERMEDIARY: Is it possible for her to have it in front of her to follow along?

MCAULIFFE: Of course.

HIS HONOUR: Yes, give me a moment. I’ll indicate it is envelope A and we’re on p 6 of envelope A. The witness is shown MFI 1, p 6 with the agreement of the parties.

MFI 1 SHOWN TO WITNESS

MCAULIFFE

Q. Did you turn - can you turn to page 6 for me?

A. Yes.

Q. And can you see the number 67?

A. Yes.

Q. Underneath that, can you see an A?

A. Yes.

Q. I’m going to read that, and that’s - this is something that you said during the interview, okay?

A. Okay.

Q. “He would pull his pants down and show me his private parts and I tried running away, but he’ll follow me”?

A. Yes.

Q. Can you remember that happening?

A. No.

Q. Can you tell me anything about that happening?

A. No.

Q. Is the reason that you can’t tell me anything about it because it didn’t happen?

A. I don’t remember.

HIS HONOUR: Should I ask about what she doesn’t remember? You’ve been there two or three times; I’m not being critical.

MCAULIFFE: Yes, I can ask some follow up questions.

Q. Do you remember Pop pulling his pants down?

A. No, I don’t remember.

Q. Do you remember running away?

A. No.

Q. I’m going to ask you a question and you can tell me if you it is true or false, okay?

A. Okay.

Q. Your Pop has never shown you his penis or his balls. Is that true or false?

A. It’s false.

Count 2

66. In similar fashion, in relation to Count 2, the Complainant’s evidence was that she did not recall the offending. The cross-examination in respect of Count 2 went as follows (T 49.01-50.01):

Q. Do you remember just watching the video just now, the interview?

A. Yes.

Q. Do you remember a time when you were on your Pop’s bed at his house?

A. No.

Q. Sorry for the delay, [Complainant]. Do you remember a time when your Pop stuck his penis in your vagina?

A. No.

Q. I’m going to ask you a question and you can tell me if it’s true or false. I’m going to say something, and you can tell me if it’s true or false, okay?

A. Okay.

Q. Your Pop has never stuck his penis in your vagina?

HIS HONOUR: Just stop for a second.

MCAULIFFE: Sorry, your Honour.

HIS HONOUR

Q. [Complainant].

A. Yeah.

Q. Just understand this, will you? That’s not a question. I saw the intermediary coming. I want you to listen to me, all right.

A. Okay.

Q. You will not be in trouble for telling the truth. You can tell the truth no matter what the truth is, you will not be in trouble. Do you understand?

A. Yeah.

Q. You just listen to the questions carefully and you tell the truth, okay?

A. Okay.

Q. I just want you to be comfortable and know that nothing that you say can get you in any trouble with anyone, okay?

A. Okay.

HIS HONOUR: Yes, go ahead.

MCAULIFFE: Thank you.

Q. Okay, [Complainant], I’m going to ask - I’m going to say something and then you can tell me if it’s true or false, okay?

A. Okay.

Q. Pop [Defendant’s name] - sorry, your Pop has never stuck his penis in your vagina. Is that true or false?

A. False.

Observations – Complainant’s Stated Lack of Memory

67. In closing oral submissions, I said to the Crown that s 293A of the CP Act is a cautionary warning of what is in essence a commonsense and worldly proposition; people often do not remember all the details of an event in the same way when recounting the event at different times, and that this is more so when the event is a traumatic one such as sexual assault. This is different to a complete lack of recollection whatsoever, which the Complainant proffered in the Special Hearing. I put to the Crown at T 111.23:

You’re not talking about differences in account, you’re talking about whether or not it is recalled.

68. Crown responded on this issue in relation to application of s 293A of the CP Act and the context evidence to which I have referred. I extract from that multifaceted submission Crown’s specific response (T 111.34-4):

In the Crown’s submission, it must be seen as an inconsistency. But on the face of it, in the Crown’s submission, it can’t be seen as fatal. A 9-year-old says something happened; it’s contemporaneously recorded. When she’s 11, she’s shown it shortly before giving evidence in a Court of law. She says that what she said in that interview was the truth. When she’s asked contemporaneously, does she remember these events, and she says no.

For that to be fatal, one would then have to say I would expect a person in her position to have remembered. That’s the point, and that’s what the Crown is saying you wouldn’t do in the circumstances of this case. And that’s a central issue, I think your Honour said that before. I just want to finish on what she said in the interview, if accepted, would fulfil the elements of both counts. So, I’ve really identified the central issue.

69. Counsel for the Defendant fairly put in closing written submissions (MFI 7) that the Complainant’s inability to recall was entirely unexplained and cannot be explained by her age, that children are not presumed to be unreliable because of their age, that there is no psychological evidence explaining the alleged memory loss and that “the inability to recall the critical events raises a reasonable possibility that they were fabricated or were not a lived experience.”

70. In my assessment of the Crown’s submission that the circumstances of the case invite the Court to accept that the Complainant’s evidence in the JIRT was credible, I bear in mind my reasons stated at [45]-[60] above and the following features of her JIRT which I find are against my accepting of that submission:

1. the inconsistency in her account of the context evidence of the number of times the Defendant previously had penile-vaginal sexual intercourse with her;

2. the lack of detail in the Complainant’s evidence of her experience of the Count 1 offending, such that she did not impress me as conveying a lived experience, specifically:

1. there was no detail as to whether the Defendant said anything whilst his pants were down displaying his penis and scrotum; and

2. there was no detail as to whether the Defendant’s pants were around his knees or ankles or a description of how he was able to follow after her with his pants down;

3. her description of the Count 2 offending is almost devoid of detail, particularly:

1. the police interviewer attempted to elicit further detail of what happened when the Defendant called the Complainant into his bedroom, yet she repeated only her simple allegation that the Defendant pulled his pants down, leaned over and stuck his penis in her vagina;

2. when asked by the police interviewer how it made her feel, the Complainant only answered “weird”, and when asked “anything else?”, she responded with “that’s it”, and there was no description of the penetration being uncomfortable or painful or otherwise;

3. there was no description of the Defendant’s physical actions, or anything said by him during the 1 minute alleged penile-vaginal intercourse;

4. there was no detail other than “he leaned over” as to whether the Complainant was standing, lying or in some other position, or the position of the Defendant; and

5. the Complainant did not say whether the Defendant’s penis was erect or give any other description of his genitals.

The Complaint Evidence

71. At school, the Complainant met with friends in an area known as the “Forest”, described as containing trees and aboriginal works. The Complainant and her friends had recently undergone protective sexual assault education. The children had been taught to complain to a responsible adult in the event of an experience of inappropriate sexual conduct. The Complainant’s memory during her JIRT of what she could recall having said to her friends in respect of the allegations was extremely superficial. Importantly, the complaint witness evidence of what the Complainant said is not consistent with either the Count 1 or Count 2 allegations. Because of the inconsistency between the Complainant’s descriptions in the JIRT of the Count 1 and 2 offences and the evidence of what she shared with her friends, neither the context nor the contemporaneity of the complaint weighs in favour of finding it to be additional evidence of the allegations or evidence supporting the truth and accuracy of the JIRT.

72. During her JIRT, the Complainant said that all she could remember of what she said to her 3 friends was “what my pop does to me.” When the police officer asked again if she could remember what she said in words used, she answered “no” (Q and A 210-11). The Complainant said that her friends told her that it was “sexual abuse” (Q and A 216 – 218) because they had learnt “sexual abuse at school [that year]” (Q and A 219-220). In cross-examination, the Complainant confirmed that she could not remember the words she told her friends (T 47.50), and when it was put to her that she told them that the Defendant “licks” her private parts, the Complainant said that she was sure she had not told her friends that (T 48.01-14). She then gave the following evidence (T 48.15-16):

Q. If you said to your friends that your Pop licked your private parts, would that be a lie?

A. No.

73. This last answer conflicts with the Complainant’s evidence during the JIRT that the Defendant did not touch her body with any other part of his body (Q and A 248-249). Alternatively, it might be a refusal by an 11 ½-year-old to admit to a lie stated by her with reference to the Defendant when she was a 9-year-old. It conveys the same uncertainty regarding the credibility of her evidence as did her answers that it would be false to say that the Count 1 and the Count 2 events did not occur even though she said that she could not remember either of those events having ever happened.

74. Of the three friends to whom she spoke in the Forest, two gave evidence. Of them, one answered the police officer during the recorded interview that she did not want to say what the Complainant had spoken. She said that the Complainant was “not really upset” and just told them that she was being sexually abused (Q and A 91-92). The other, Z, said that the Complainant seemed a “bit nervous” and “wasn’t really happy.” Z recounted that the Complainant described the Defendant touching her private parts and licking them (Q and A 65), which the Complainant denied having told her friends (T 48.01-14). Z recounted the plaintiff having said this had occurred since she was a baby and every time the Defendant would change her nappy. It is common sense that no individual has a recollection of what occurred when they were so young as to be experiencing the changing of nappies.

GOOD CHARACTER OF THE DEFENDANT

75. The Defendant is a person of good character who has lived a full length of life in the community without conviction. He had not previously been the subject of a personal or domestic violence order. I weigh his good character when considering the likelihood of him acting in the way alleged. The Defendant’s other son, being the complainant’s uncle and F’s brother, and his now-adult daughter (who I will refer to in these reasons as “P”), gave evidence that the Defendant was generous, caring and kind to his children and grandchildren. Further, the evidence of P described her life experience of enjoying visiting the Defendant’s home from her early primary school years, including the times where she was the only child in his care. Her evidence described the Defendant as a committed grandfather who was never sexually inappropriate. I found her to be an impressive witness who gave evidence with a clear recollection, without exaggeration and with appropriate responsiveness to the questions asked.

76. Overall, the evidence of those witnesses amounts to the Defendant having been a sexually appropriate, caring and supportive grandfather, which is entirely out of step with the conduct described in the allegations made by the Complainant.

77. When the Defendant was served by police with the Apprehended Domestic Violence Order on the day that the Complainant made her allegations to police, the Defendant telephoned F and denied the allegations, before asking him to accompany him to court: T 64.10-15. By itself, that request would not be of much persuasive weight. But, with the evidence of good character, and the Complainant’s evidence in mind, I consider that it is an invitation a father would be unlikely to make to his own son should he be cognisant of his guilt of offending against said son’s daughter.

CONCLUSION

78. In Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72, Leeming JA (Bell CJ and Ball JA agreeing) said at [131]:

The “vividness” of the plaintiff’s account plainly drove the fact-finding process. There may in theory be occasions where one piece of testimonial evidence is found to have such cogency that it is determinative of all contested facts, especially where, as here, there was little by way of contemporaneous documentary evidence bearing upon the matter. Given the difficulty all people including judges have of distinguishing reliable testimony from sincerely believed but unreliable testimony, and from distinguishing either of those from false testimony, those occasions are apt to be rare. However, in such cases, it will be very important for the Court to explain why, if other evidence from that witness is demonstrably unreliable, nonetheless the portion of testimony relied on has the high level of cogency that is missing from the recollection of the same events by the same witness. It will also be very important for the Court to explain what it is about the witness’ evidence that gives it that quality of overwhelming cogency.

79. That was a civil case, where the standard of proof was satisfaction on the balance of probabilities. Nevertheless, the quoted passage services the difficulty in this case with accepting the Complainant’s evidence. While the Complainant’s evidence was available for acceptance without any corroboration or without the evidence of complaint witnesses being consistent with it, I find her description of the experience of the alleged specific acts, the subject of Counts 1 and 2, to be:

• unreliable on account of her oral evidence that she did not recall the events;

• well less than vivid;

• internally inconsistent as to the contextual history of alleged prior sexualised conduct;

• inconsistent with the complaint evidence;

• lacking the detail expected of a description of a lived experience from the evidence of a victim who was aged 9 at the time of sexual assaults;

• less likely to be true because of the Defendant’s good character.

80. I am not satisfied that the Complainant’s evidence demonstrates the reliability and accuracy necessary to satisfy a conclusion of cogency. I find that the alleged acts being the Count 1 and Count 2 offending are not proved beyond reasonable doubt.

ORDERS

81. Count 1: a verdict of Not Guilty.

82. Count 2: a verdict of Not Guilty.

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Amendments

29 May 2025 - Changed Leeming JJA and Ball JJA to Leeming JA and Ball JA

Decision last updated: 29 May 2025