R v Poudel

[2022] NSWDC 472

District Court

New South Wales

Medium Neutral Citation:

R v Poudel [2022] NSWDC 472

Hearing dates:

27 September 2022 – 5 October 2022

Date of orders:

12 October 2022

Decision date:

12 October 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Verdicts of Not Guilty on both counts

Catchwords:

CRIME - sexual intercourse without consent – sexual touching - Judge-alone trial – pre-trial issues concerning admissibility of accused’s ERISP and deceased complainant’s recorded police statement

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72

Harris v The Queen (2005) 158 A Crim R 454; [2005] NSWCCA 432

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Prasad v R [2020] NSWCCA 349

Priday v R [2019] NSWCCA 272

R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386

R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61

R v Fernando & Anor [1999] NSWCCA 66

R v Markuleski (2001) 52 NSWLR 82

R v Plevac (1995) 84 A Crim R 570

Sio v The Queen [2016] 259 CLR 47; [2016] HCA 32

The Queen v Dickman (2017) 261 CLR 601; [2007] HCA 24

Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868

Youkahna v The Queen [2013] NSWCCA 85

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
Prayash Poudel (Accused)

Representation:

Crown Counsel:
F. Jowett

Defence Counsel:
D. Petrushnko

File Number(s):

2020/306474

Publication restriction:

Pursuant to s7 Court Suppression and Non-Publications Orders Act 2010, no publication of the complainant's name or of any material that may lead to the identification of the complainant.
Pursuant to s578A of the Crimes Act 1900 it is an offence to publish any material which identifies the complainant or any matter which is likely to lead to the identification of the complainant.

VERDICT on judgment

Crown evidence on the Voir-Dire

Evidence of Professor T Rosenfeld

Evidence of Dr J Obeid

The Crown’s submissions in relation to admissibility of the ERISP

The Accused’s submissions in relation to admissibility of the ERISP

Determination

Crown submissions on whether the recorded interview of NH is admissible pursuant to s65 of the Evidence Act

The accused’s submissions in relation to the complainant’s statement

The applicable legislation

Relevant legal principles

Determination

Whether the recorded statement should be excluded pursuant to s137 of the Evidence Act

The Crown evidence at trial

Evidence of Bindiya Maharajan

Evidence of Ms Nikita Guatam-Poudel

Evidence of Dr EV Freedman

Evidence of Prabina Chhetri

Evidence of Annastacia Wainaina

Evidence of Dr P Walker

Evidence of Ms Lee Carissa

Evidence of Detective Senior Constable Sutton

Evidence in the accused’s case

Directions of law

Count 1

Count 2

Sexual assault consent knowledge direction

Sexual Intercourse

Consent

Knowledge

Direction pursuant to s293A of the Criminal Procedure Act 1986 – differences in complainant’s accounts

Complaint evidence direction

Expert witness evidence direction

Section 292C of the Criminal Procedure Act 1986 direction

Markuleski multiple counts direction – R v Markuleski (2001) 52 NSWLR 82

Right to silence direction

Failure of accused to give evidence direction

Liberato direction in respect of the accused’s evidence

Lies used at evidence of consciousness of guilty direction

Good character direction

Direction pursuant to 165(1)(a) & (c) of the Evidence Act 1995

Findings of fact

Determination

VERDICT on judgment

1. On 27 September 2022 the accused pleaded not guilty upon arraignment to two counts on the Indictment as follows:

1. On 28 February 2020, at Neutral Bay in the State of New South Wales, he had sexual intercourse with NH without her consent and knowing that NH was not consenting.

This was an alleged offence pursuant to s61I of the Crimes Act 1900.

2. On 28 February 2020, at Neutral Bay in the State of New South Wales, he intentionally sexually touched NH, without her consent, and knowing that NH was not consenting.

This was an alleged offence pursuant to s61KC(a) of the Crimes Act 1900.

2. There were two pre-trial issues to be determined before the commencement of the trial proper. They concerned the following matters:-

1. The admissibility of the ERISP interview of the accused by Police on 26 October 2020; and

2. Whether the Crown be allowed to adduce into evidence the statement of NH recorded on 2 March 2020 pursuant to s65 of the Evidence Act 1995.

3. Following the hearing as to these preliminary issues the parties agreed that I would deliver my decision in respect of each issue on 30 September 2022, and so as to allow the trial to proceed expeditiously, I would publish my reasons for so deciding in my verdict on judgment, it being a judge alone trial.

4. On 30 September 2022 I made the following orders:-

1. That the ERISP interview of the Accused by Police on 26 October 2020 be admitted into evidence save for Q54-A66.

2. That the Crown be allowed to adduce into evidence the statement of NH recorded on 2 March 2020 pursuant s65(2)(b) or (c) of the Evidence Act 1995.

5. What follows is a summary of the evidence on the voir-dire, and my reasons for those orders.

Crown evidence on the Voir-Dire

6. The evidence relied on by the Crown on the voir-dire comprised the following. Exhibit A was a bundle which included copies of the submissions relied on by the parties, the s67 notice dated 15 March 2022 (which was not in issue), a transcript of the police interview of the complainant NH recorded on 2 March 2020, and four reports from Adjunct Professor Tuly Rosenfeld dated 19 November 2021, 23 November 2021, 5 February 2022 and 15 February 2022.

7. Exhibit A also included a transcript of the ERISP interview of the accused on 26 October 2020 and a copy of a hand-written letter of the accused addressed to his supervisor at the Lansdowne Gardens Nursing Home (“LGNH”) dated 29 February 2020.

8. Exhibit B was a bundle of additional witness statements which the Crown intended to rely upon at trial.

9. Exhibit C was the disk of the accused’s ERISP interview on 26 October 2020 which was played in court.

10. Exhibit D was the disk of the recorded interview of the complainant NH with police on 2 March 2020 which was also played in court.

11. Exhibit E on the voir-dire were two CT brain scans of the complainant taken on 19 November 2018.

12. The accused relied on a bundle of documents on the voir-dire which became Exhibit 1. It comprised Exhibit 1.1 to Exhibit 1.17 and included records produced on subpoena from the LGNH in respect of the complainant which were referred to as “Progress Notes”. It also included an Incident Log (Exhibit 1.16) and a report of Dr John Obeid, consultant physician and geriatrician dated 19 July 2022.

13. Exhibit 2 was an Assessment Summary generated on 18 July 2018 relating to the complainant NH.

14. Exhibit 3 was a document headed “Clinical Frailty Scale”.

15. The evidence of Professor Rosenfeld and Dr Obeid was relevant to the second issue on the voir-dire, namely, whether the statement of the complainant recorded on 2 March 2020 was admissible pursuant to s65 of the Evidence Act.

Evidence of Professor T Rosenfeld

16. In his first report, Professor Rosenfeld was asked for his opinion on whether NH had a diagnosis of cognitive impairment, and if so the categorisation of such impairment, it’s severity and whether that impairment had any impact on her ability to recall and/or convey information about recent events, events that occurred around February 2020 or historical events. He examined NH on 17 November 2021 and took a medical history which he described as “disjointed and at times disconnected”. He described her as being consistent a number of times when she recounted the incident subject of the charges.

17. Professor Rosenfeld reviewed documents provided by Royal Prince Alfred Hospital (‘RPAH’) relating to a fall the complainant suffered on 30 May 2018. In that fall she suffered a head strike and a CT brain scan taken soon after her admission to hospital showed frontal lobe contusions, a small subarachnoid haemorrhage and non-displaced skull fractures. Surgical intervention was not required however she was discharged for inpatient rehabilitation on 4 June 2018.

18. Professor Rosenfeld noted that the complainant was admitted to Balmain Hospital from 12 July 2018 until 19 July 2018 when she was then moved to a transitional care unit. She was discharged to LGNH on 21 September 2018. No formal assessment of her cognitive function was documented.

19. Professor Rosenfeld opined that the complainant suffered from dementia most likely related to vascular brain disease associated with her diagnoses of cardiovascular disease, coronary artery disease and atrial thrombus heart disease. He opined that this condition was further complicated by a head injury with frontal and parietal contusion and subarachnoid haemorrhage. He opined that her dementia was of a moderately severe degree and that she was able to partially recall recent events. At the time of his examination her ability to recall the incident in February 2020 was “clouded and imprecise”.

20. Professor Rosenfeld opined that at as a result of cognitive impairment and dementia, she had “an impairment in her ability to understand and respond to questions in a manner that properly and consistently draws on her impaired recollections of occurrences and the sequence of events from the past”. Her reduced ability was due to the presence of brain disease associated with vascular brain disease as well as the effects of the brain injury suffered in the fall. Both affected the frontal lobe brain function. He noted a disparity in her ability to recall some events and not others. He opined, “a significant factor is that degree to which the experience was memorable because it was a major event, traumatic, or a major life event”. Professor Rosenfeld went on to set out measures that would reduce the impact of her cognitive impairments on her giving evidence.

21. The complainant died on 30 January 2022 and Professor Rosenfeld was asked to provide a supplementary report in which he was asked for his opinions as to whether it was possible to reliably diagnose a cognitive impairment such a dementia retrospectively, and if so the status of the complainant’s cognitive impairment in late February/early March 2020 and in March 2021 and her competence or capacity as at those dates. At the time of this report Professor Rosenfeld was qualified with the Progress Notes in Exhibit 1 and a number of witness statements. In a report dated 15 February 2022 he opined that it was likely that the complainant suffered from an underlying brain disease for a considerable period even prior to the fall and head injury from which she suffered. At the time of the alleged offences Professor Rosenfeld was of the opinion that the complainant was suffering from cognitive impairment and dementia associated with vascular disease that was likely of mild severity.

22. Professor Rosenfeld had reviewed the video of the complainant’s statement to police on 2 March 2020. He stated that in his opinion she was able to provide a reasonably clear and detailed account of the history and the events that took place. He noted that she was occasionally repetitive and on several occasions tangential in response to the questioning.

23. Professor Rosenfeld expressed the following opinion in respect of the complainant’s recorded police interview:-

“In my view, having seen the video interview, the clinical notes, the affidavit supplied by the nurses that attended her, it is more likely than not that [NH] provided an accurate account of the events that occurred during the incident. The account that she provided is likely to have described real events that occurred to her – that [NH] suffered from a dementing illness makes it less likely, in my opinion, that the events that she recounted were not based in her experiences at that time.

That she recounted those events to attending nurses soon after and then recounted those events to others, the doctor and the interviewer not long after, more likely than not indicates that they occurred and the veracity of her recollections of those events.”

24. Professor Rosenfeld gave evidence that his first report was concerned with primarily his opinion as to whether or not the complainant had competence to give evidence at trial. His supplementary report dated 15 February 2022 addressed more fully the issues around her cognitive state and level of impairment in March 2020. Professor Rosenfeld gave evidence that between her interview on 2 March 2020 and when he examined her in November 2021 her dementia had developed and as at 17 November 2021 she suffered what he described as “moderately severe impairments”. She had for example scored poorly on the Mini-Mental State Examination (‘MMSE’). He was asked to explain his opinion that as at 2 March 2020 her cognitive function and severity of her dementia was mild. He gave the following evidence:-

“Well, she was able in that interview, as I explained, she was clear and provided a detailed account of the events that took place. She was occasionally repetitive and occasionally she was tangential. In other words, she would go off and keep on talking about a number of things that weren’t directly related to the original question and I noted that the interviewer, the police person that was doing the interview, had to repeat questions and obtain clarification, the history, but I thought at that time that her evidence, and that reflects her cognitive process, was consistent and it had clarity around details on the incident. So, my conclusion was that even though she was likely suffering from cognitive impairment, problems with memory and thinking, she was still able to clearly outline the history that she was providing in response to the questions.”

25. Professor Rosenfeld was asked about the two brain scans taken on 19 November 2018 (Exhibit E on the voir-dire). He gave evidence that the scans did not correlate directly with cognitive status and did not inform the functioning of the brain, rather the scans were an extra test to determine what the underlying pathology or brain disease state was, which may explain findings on clinical assessment. The main features shown on the scan were the blocking of the small blood vessels in and around the brain. Professor Rosenfeld was asked whether the scans informed the opinions he expressed in his report about whether or not the complainant had an underlying vascular disease causing some cognitive impairment. He gave the following evidence:-

A. It - it informs me strongly that she does have underlying vascular brain disease as I've outlined in my report, she has risk factors for that, and I see - in fact, every patient that I see, I actually visualise the brain scans and the - it's entirely consistent with the presence of vascular brain disease.

Q. In relation to the second scan, can you inform the Court what it is that you see on that scan, and what it tells you - noting what you've said earlier about cognitive state, I'll ask you what it tells you about any underlying disease that this scan informs you of?

A. The - the - you're talking about the one that says, "Frontal lobe atrophy shrinkage"?

Q. That's the one, yes.

A. Yep. So, that scan is taken through – it’s a different view, so in this case, it's looking through the brain as though you're looking up through the head from the feet upwards. So it's looking through an axial - a transverse cut across the brain in that plane, and again, the white on the outside is the skull, anything that's black is the cerebrospinal fluid which is not only with the inside part of the brain, but also around the outside, the black areas around the outside are the sulci or the crinkle - the wrinkles of the brain, and so they look black, as well. And the brain itself is the - the grey material that is brain itself.

And so, the features - the main features that I'm seeing in this scan is the - what I would consider quite marked or enormous enlargement of the ventricles, which is the part of the black material on the inside of the brain, and so, they would normally, in a well unaffected person be far smaller, and not as blown up - they look like two balloons in this picture, and the reason that they're like that is because the brain has shrunken around the ventricles and the ventricles have basically filled with CSF to replace the - the space. It - the other feature is that it's apparent that you can see the front part or the top part of the brain where I've highlighted "frontal lobe atrophy or shrinkage".

The - the shrinkage is more prominent in that part of the brain, and again, that shows the presence of shrinkage in parts of the brain that undertake executive - think - higher level judgment and executive function, it's the front part of the brain called the frontal lobes, and in my view, that part of the brain is slightly more shrunken than other parts, and you can see that there's some space, black material, in the front of the - or the top of the picture, although one has to take into consideration that if a patient is lying on their back in the scanner, the - the brain will tend to fall - fall down to the back, obviously, because of gravity, and so that space is usually enlarged more than the back. But in this case, it's enlarged more so than I'd expect, there's more space and the shrinkage of the brain is greater than I would accept as normal.

26. Professor Rosenfeld was asked about his commentary in his first report about a brain scan report of Dr Brunacci in May 2018 which informed his opinion that the complainant suffered mild atrophy and chronic vascular disease. The features described by Dr Brunacci are what he referred to as “a shrinkage chronic vascular disease”.

27. Professor Rosenfeld adhered to his opinion that the complainant was consistent in describing the events that are the subject of the alleged offences upon her assessment on 17 November 2021 with what she had told police in March 2020. He was asked as follows:-

Q. Is it unusual to go from a mild cognitive impairment to a moderately severe cognitive impairment in a timespan from 2 March 2020 through to 17 November 2021 when you saw her?

A. Yes. Yes, it depends on the nature of the underlying problem. However, I know that [NH] suffered from a number of risk factors for heart blood vessel disease, and in fact she had previously been on what are called anticoagulant medications which reduce the likelihood or risk of little strokes in people who are so predisposed because of heart and blood vessel disease. One of the problems with anticoagulants, which are blood thinners, is that if you fall while you're on a blood thinner or particularly if you hit your head, there's a real risk of having bleeding or haemorrhages into the brain, and that's exactly what happened to [NH], she had recurring falls and haemorrhages in the brain, and in fact in my re-reading of my notes, it seems that one of the things that happened during her hospitalisation was that those anticoagulants were stopped and so, in answer to your question, it's more likely than not that she continued to have little blood vessel events and strokes between the time of her hospitalisation and later because she was no longer on a medication that may have helped, not completely extinguished but may have helped to reduce the likelihood of little strokes occurring. Not only that, but even in Alzheimer's disease there is a continuing progression of brain disease and in my experience in many, many of these patients so suffering a progression over a year or two is par for the course, it's very, very common. Particularly, I if I might say, when you start the observations, so when she was first seen and had brain scans, she was already suffering from significant brain disease. So, the change from then to only six months of a year later, you've already passed the threshold of having significant disease. Every little bit of extra little stroke or progression of Alzheimer's disease has a much greater effect.

28. He was subsequently asked:-

Q. Did her ability to give you a history consistent with what you saw in the recording of March 2020 inform you at all about her ability to recall accurately events in March 2020?

A. Yes, I think in March 2020, soon after the events, she was able to provide a clear history and that those - that recollection and her recall of the events was - was consistent with what she described when I saw her, if that answers the question.

Q. The fact that consistency existed despite a worsening of her cognitive impairment, does that inform you at all about her cognitive impairment in regards to memory of those events?

A. I would have expected that after a year her memory of those events would have been less clear because of the - the almost year that would have gone from one to the other, however, they were consistent to the point where her memory had been retained.

29. Professor Rosenfeld was also asked whether the opinions expressed by Dr Obeid in his report dated 19 July 2022 caused him to change his opinions to which he replied “No”. He gave the following evidence:-

Q. If he were correct, that her cognitive impairment was due to traumatic brain injury as opposed to her vascular disease causing progressive degeneration, would your assessment, having viewed the video that was recorded in March 2020, that there's a mild severity of cognitive impairment change at all? To rephrase, if he's correct as to the nature of the cause of the cognitive impairment, would your distinction as to how severe the impairment was change?

A. No. Well, yes, if - if he - if Professor Obeid was correct in that she, at the time of the event, suffered from only cognitive impairment due to trauma, I would not have expected that there would have been such a significant change in her overall function, in her cognitive function, and her ultimate death. She has suffered from a progressive degenerative neurological disease, and that is not consistent with purely the effects of the traumatic brain injury, and neither would it be consistent with the changes evident on the brain scan.

Q. Do you agree with Dr Obeid's opinion that it was not vascular dementia but entirely as a result of the brain injury that she suffered cognitive decline?

A. Strongly no.

30. Professor Rosenfeld was asked about Dr Obeid’s opinion that the complainant’s police statement could have represented a fixed delusion or falsely recalled memory as follows:-

Q. He comments on your opinion that [NH] provided an accurate account of events that occurred during the incident on your opinion of having watched the video, that it could have represented a fixed delusion or falsely recalled memory rather than an accurate account. Are you able to comment on that?

A. A delusion is a very specific type - it's a description of a very specific psychiatric or mental problem, and a delusion is - is a false belief that is held despite evidence to the contrary, and to call her evidence a delusion would require that she had some other delusional behaviours and it would require that she had a psychiatric illness or an illness that - that - that had other types of delusions, and it's very easy to say that somebody's deluded by - by just dismissing their - their ideas, but in this case it doesn't meet the criteria of a delusion in my view because there's no clear indication that - that it couldn't possibly have happened. So, a delusion would be if she was saying somebody did something when they weren't even in the vicinity or in the country. So, a delusion is when you think the FBI is listening in on you and there are microphones in your home. It just doesn't have that character of a psychiatric delusion. So, yes, you can pull that out of the blue, but I don't see any reason to propose that as a reasonable explanation.

31. In cross-examination Professor Rosenfeld was asked about a number of entries in the Progress Notes from LGNH. He was asked about an incident on 13 March 2021 in which it was reported that another resident kicked her in the dining hall. The complainant reported she had been kicked in the leg however review of CCTV by staff established that she was not kicked. Professor Rosenfeld gave the following evidence:-

A. My comment is that [NH] suffered from a dementing illness and it's the nature of dementing illness that there are ups and downs, and some days are worse. I think you mentioned before that she had suffered a urinary tract infection and so there are a range of factors from day to day that make people worse.

So for instance, in people with dementing illness, there's this syndrome called sundown, so at the end of the day they become a bit less oriented, more confused, sometimes belligerent and difficult, and that's when they may see inappropriate things or have hallucinations as you've referred to.

But those abnormalities, the hallucination - hallucinations or even delusions about other people "Going to come in and attack me" or something, they come and go, and when the fictional - when it's the light of day comes, they disappear and so it's almost - it's - it's very common, it's almost the norm that people suffering with dementia have good days, bad days, and pretty much anything that upsets the balance makes them worse.

It's not - it doesn't, it - that really, all those things you're just talked about confirm that [NH] suffered with a dementing illness and that those behaviours were part and parcel of that illness, and the ups and downs were part of that. What I saw in the interview, there was no indication that [NH] was delirious as - as in suffering an acute disruption of her orientational alertness.

So she was there and present and able to give an account of the situation and she wasn't distracted and confused, and so at the time I saw her and what I witnessed in the interview, she wasn't suffering from hallucinations or delusions or - or an abnormality in her - her - in her alertness which would suggest the presence of an acute delirium.

But those episodes, to the extent that they are well-documented and true, if they are, then those episodes will be very consistent with a dementing person who is suffering episodes of delirium. I can't explain why the CCTV didn't show an abnormality, but it's not - I mean, in my experience over many years, it's not uncommon for an older person to have a - a remembrance, a recall of an event that actually did happen, and people around them say it didn't because of the circumstances and the timing was a little bit different.

Again, if somebody is suffering from dementia, their ability to interpret and recall the - the details of when something happened may have been slightly different and so she may have been kicked or kicked and it wouldn't have come out on the CCTV because it may have occurred in a different place, so I can't explain specifically because I wasn't there.

32. Professor Rosenfeld was referred to a further matter noted in the Progress Notes where the complainant claimed another resident had stolen some jewellery from her. The jewellery was found by staff in her bathroom. He was asked:-

Professor, it turns out that the necklace was not missing. How do you explain, in your opinion, [NH] being one hundred percent sure that another resident stole that necklace?

A. Forgetting where you've put things, losing things, blaming other people for it is very common. In fact, it's such a common finding and it causes enormous frustration for carers and family, and so the - the - it's called - it's - it's called paranoid beliefs. It's not really paranoid, it's really that you've forgotten where you've put something and the only way you can figure it out in the disordered, impaired brain is to construct a reason for that, and - and so if there's - if there's some possible explanation, then you blame other people.

So it's a very common finding and it's - it's - it's - you see that so often because one of the earliest features of dementing illness is that you tend to forget things and lose things, and because there's no obvious explanation, you come up with all sorts of alternatives and start blaming the cleaner and putting things away and locking up the doors and locking up. So it then leads to a whole lot of other irrational behaviours.

So it's not at all uncommon in a person such as [NH] living in the nursing home to be exhibiting those sorts of behaviours, blaming other people and misplacing things, and misinterpreting and forgetting what's actually going on, and so that's - to me, that's quite different to constructing a very elaborate, clear picture of an event, so that's quite distinct from [NH] saying, "I actually saw Mrs Smith come into my room last night. She went through my things, picked out a necklace, and left with it." So that's very different, in my mind to the situation we're talking about. It's just there's a distinction, but those symptoms - I suppose that's why I didn't, in my report, go through and basically rewrite the Progress Notes and pick out every single event. To me, it's part and parcel of a progressive dementing illness.

33. Professor Rosenfeld was then asked about a further matter reported in the Progress Notes where the complainant accused another resident of stomping on her toe. Again, CCTV footage revealed no physical altercation occurred. When asked about that incident Professor Rosenfeld gave the following evidence:-

A. That's the same - my interpretation is similar in that she misinterpreted the other lady touching or standing or moving onto her feet and that it was exaggerated into her misinterpretation of the event. That's all. Yeah, that's what I think.

Q. But an exaggeration is based on something occurring. Wouldn't you agree?

A. Yes.

34. Professor Rosenfeld was asked about another incident in which the complainant reported an injury on her right knee caused by a fall in the TV Room. Investigation of the CCTV by staff revealed that no fall took placed. Professor Rosenfeld was asked:-

So, Professor, we have here an incident that [NH] recalls about another resident "who did not even sit near the TV room". Does that fall into your definition of delusion?

A. Again, it's not a fixed recurring belief. So, not really a delusion but a misinterpretation, a false information. She doesn't know how - presumably there was actually an abrasion on her knee and she can't explain it. So, she recalled another event or she - I don't know where it came from, but I presume there was - no, there was an abrasion there and we don't know how it occurred. I was going to say it's almost - again, such a common thing that an older person will come in with even a fracture or an injury and they will completely deny that they've had a fall or ever had an injury and they say, "There's nothing wrong with me". So, that's why we rely so much on witnesses. We don't usually have CCTV of every fall, but you can't rely, because of the dementia, on the history provided by such a person so suffering and so, if I had to describe all the incorrect information that I'm provided daily by older people, I'd be calling everyone delusional and we don't.

We say they're cognitively impaired, demented. They don't know or don't understand or can't properly recall what occurred and, yes, another possibility is, as you're alluding to, that she has recurring delusions that, again, for it to become a recurring delusion - for it to become a delusion I would expect that those - that same belief would be a recurring thing. So, everyday she would say that, "Mrs Smith knocked into me and hit me and the reasons that I'm here is because," so that would become a recurring fixed delusion and then I would call it a delusion, but if somebody says that something happened and then when you check, it didn't actually happen, that's misinformation. That's dementia. That's lack of recall. That's lack of understanding, misinterpretation of events, not necessarily a delusion.

Q. But, Professor, in this case, the incident that I just outlined to you, we have a narrative here that has been given to the staff that she rolled to her right side so that she would be on her back, and she was able to grab onto something and was able to stand up. What is that an exaggeration of?

A. In my experience, it's more likely that at some point such an event occurred.

Q. You're saying that this event may have occurred at some other time?

A. Yes.

Q. Not necessarily on this particular day?

A. Correct.

35. Professor Rosenfeld was questioned about the symptoms of frontal lobe damage as follows:-

Q. Now, I want to ask you, Professor, about frontal lobe damage. The symptoms of frontal lobe damage, Professor, would you agree with me they are individuals being aggressive?

A. Yes.

Q. Confabulations?

A. Not characteristically, but confabulation is more a symptom of severe memory impairment.

Q. Irrational behaviour?

A. Yes.

Q. Impulse control issues?

A. Yes.

Q. Wouldn't the instances that I just outlined with you, wouldn't they also fit into the same category as symptoms of frontal lobe damage?

A. Yes, they could be associated with frontal lobe damage.

Q. At the very least, what we can say - you can agree or disagree with me, Professor - is that these instances that were outlined by [NH] to the staff members at Lansdowne Gardens were inaccurate?

A. Yes.

Q. It did not happen at that particular time that [NH] said it happened?

A. Probably, yeah.

Q. At that particular time that [NH] said it happened?

A. Probably, yeah.

Q. Wouldn't there be a possibility given this is the pattern of behaviour of [NH], that the allegations that she's made on 28 February 2020 also fall into that category?

A. It - it's a possibility, although it wasn't my impression from the interview and the clarif - the clarity which - with which she spoke about it.

…

Q. It seems that the incidents that was outlined that I just outlined to you, they were very clear in terms of the notes of what [NH] was alleging? Wouldn't you agree?

A. They're not as clear as the history that she provided me.

Q. And would these instances that I just outlined to you, they turned out to - there's no independent evidence to support it, such as CCTV; correct?

A. Correct.

36. Professor Rosenfeld was cross-examined on Exhibit 2, the assessment summary generated on 18 July 2018. He disagreed that the content of that report indicated that at that time the complainant was functioning “ok”.

37. It was put to Professor Rosenfeld that the frontal lobe atrophy shown in the scans (Exhibit E on the voir-dire) were consistent with the injuries resulting from the complainant’s fall on 30 May 2018. He gave evidence that the frontal lobe atrophy was not caused by the fall but would have been worsened by the injury caused in the fall. Professor Rosenfeld disagreed that the pathology shown on the scans demonstrated frontal lobe damage which resulted in the complainant’s confabulations and behavioural disorder. He gave the following evidence:-

A. I - I - in my view, the - the confabulations, the behavioural disorders, the - the impairments in cognitive function and their worsening was due to the progression of dementia, and that the frontal lobe damage would have the - the injuries and the frontal lobe damage would have worsened that to a degree at that time when she came into hospital, but that those - the - the damage caused by the frontal lobe injury would have improved - and it did, that's why she went to rehabilitation at Balmain Hospital - and so, she was temporarily or impermanently worsened by the fact that she had a head injury, but she was admitted to hospital very sick with those injuries, and then, she was finally discharged home.

And so, she had a - a reduction in her functioning in her cognition with the injuries, and then, she would have improved as people do when they have injuries. But I've given my view that underneath all that, there was underlying brain disease, atrophy, shrinkage, and that that was something the - particularly the rest of the atrophy in the rest of the brain and the enlarged ventricles that are demonstrated on the scan, that was unlikely - I can't conceive that that was caused by the frontal lobe injury.

38. Professor Rosenfeld was also questioned about a change in the complainant’s MMSE scores namely 21/30 in January 2021 and 23/30 on 18 November 2021. He disagreed that this was a significant improvement. He agreed that the MMSE did not test function of the frontal lobes.

39. Professor Rosenfeld was cross-examined on his evidence that the matters in the Progress Notes could have happened at another place or time because of her cognitive problems. He gave the following evidence:-

Q. I asked you that it's possible, is it not, that the allegations that [NH] set out on 28 February 2020 are also inaccurate?

A. Of course it's possible and having interviewed thousands and thousands of older people over 40 years, that's certainly a consideration, but I came to the view, having seen her directly and asked her about it, that it wasn't such.

Q. Is it possible that what [NH] said occurred to her on 28 February could've happened to her maybe at some other time or some other circumstance?

A. Yes, it's possible.

Q. She presented it to the staff as occurring on 28 February 2020?

A. Yes, possible.

40. Professor Rosenfeld agreed with Dr Obeid’s opinion that the complainant would have understood an obligation to be truthful. He was then asked:-

Q. And then Dr Obeid moves on and says:

"The difficulty for her would not be in terms of understanding to be truthful, but rather inaccurately recalling or understanding complex situations and/or differentiating them from delusional thoughts."

Do you agree with that?

A. Yes.

41. In re-examination Professor Rosenfeld gave evidence that the errors or mistakes of the complainant set out in the Progress Notes did not change his opinion that the complainant was more likely than not able to give an accurate account in her police interview. He was asked:-

Q. Given that, do you still maintain that [NH] was able to accurately recall the events that she alleged occurred on 28 February 2020?

A. The nature and manner in which she related them shows me that she was able to recall that - those events.

42. By leave Professor Rosenfeld gave the following further evidence in cross-examination:-

Q. Professor Rosenfeld, just one final question. Is it uncommon for experts like yourself to comment on cognitive impairment and cognitive functioning with, of course, the necessary materials in front of you, without seeing the individual?

A. Yes, it's very - well, I don't know about other clinicians, but I think it's generally very - the most important aspect in assessing somebody, making a diagnosis is the history, the symptomatology, the history of problems that are usually provided by witnesses, carer, care givers, documents, Progress Notes et cetera. And as I said before, most of the patients that I see in front of me, they will say there's nothing wrong with me, and so, you have to always find further information from other people, witnesses, and documents, but on the other - there is one aspect and talking to a person and actually testing them is a very useful thing to do. But again, that can be provided through notes and the clinical observations of others, provided that those others are appropriately trained.

Evidence of Dr J Obeid

43. Dr Obeid provided a report dated 19 July 2022. In that report he summarised the complainant’s medical history from hospital records, particularly following her fall on 30 May 2018 when she was admitted to RPAH.

44. In respect of the recorded police interview on 2 March 2020 Dr Obeid noted the following:-

1. “NH was unable to recall when she moved into the Nursing Home (instead only repeating the suggestion made by her daughter). She was however able to recall her room number and how she chose that particular one and that she later moved to room 202.

2. NH’s report of the incident on the video statement appears consistent with what she told staff, as recorded in the incident report on page 6 of the bundle labelled “Incident forms”… however it is likely that there was a very short time delay between the video statement and the report to staff (likely on the morning of 29 February 2020).

1. On one occasion NH appeared to lose track of what it was she was attempting to say, but overall she was quite fluent.

2. She was repetitive at times during the interview, suggesting a perseverative pattern of thinking.”

45. Dr Obeid set out a number of matters relied on by Professor Rosenfeld in coming to his opinions. He opined that the head injury suffered by NH in the fall in May 2018 was moderately severe, evidenced by the fact that the fall led to her admission to hospital. He opined:-

1. It caused a fracture of the skull.

2. It caused multiple “contrecoupe” injuries including bilateral subarachnoid haemorrhages and a left frontal lobe cerebral contusion.

3. It may have caused an additional subdural haemorrhage discovered at a later time during the RPAH admission, though this may have been due to subsequent falls she had during the admission. This was suggestive of ongoing damage which may have occurred due to further brain injury and intercranial bleeding.

4. It caused a new onset of cognitive deficits, with onset immediately, or soon after the brain injury. Dr Obeid opined that there was no preceding history of evidence of cognitive impairment, relying on the ACAT assessment (Exhibit 2 on the voir-dire).

46. Dr Obeid was of the opinion that the fall on 30 May 2018 and the resulting traumatic brain injury was of such severity it could have caused her to provide false and misleading information, albeit unintentionally. He opined:-

“The damage to the frontal lobes in particular can cause an inability to:

1. Appreciate or interpret the exact nature of events occurring around or to her;

2. Perseverate on a false recollection of events, or cause such events to merge with other events from the past;

3. Differentiate delusional thoughts from reality.”

47. Dr Obeid disagreed with Professor Rosenfeld’s opinion that NH’s cognitive impairment or dementia was “most likely associated with vascular brain disease”. His reasons for the disagreement were as follows:-

1. The CT and MRI scans undertaken during her 2018 hospitalisation referred to any vascular pathology as being mild.

2. Around 3.5 years prior to the assessment undertaken by Professor Rosenfeld, NH’s cognition, “from all reports was completely normal”… it was unusual for a patient to progress from completely normal with minimal radiological changes to a moderately severe dementia in such a short period of time.

3. A much more likely diagnosis than a vascular or Alzheimer’s dementia was the traumatic brain injury. Dr Obeid stated that the diagnosis of vascular or Alzheimer’s disease was “speculative and clinically unlikely”.

4. Dr Obeid found it unusual that Professor Rosenfeld concluded “the degree to which previous head injury has contributed to cognitive impairment is unclear”.

5. Dr Obeid was of the opinion that NH’s recall of some (or many) events was false and completely misleading. He based this opinion on the events subsequent to the alleged offences.

6. Dr Obeid did not agree with Professor Rosenfeld’s statement that “the most prominent and traumatic events are more likely to be retained with clarity”. He stated that people with significant brain impairment (especially frontal impairment) “are capable of well systematised delusions and confabulations. This may appear to represent “clarity” in that it is consistently repeated, but that does not make such repetitions factual”.

7. In respect of Professor Rosenfeld’s opinion as to NH’s retained memory and understanding Dr Obeid stated:-

“Whilst I agree that the presence of dementia would not impact on the truthfulness of a person’s statement, in the case of dementia the issue is about the impact of the person’s cognitive recall abilities and frontal lobe function, not about whether the person is being truthful.”

8. In respect of Professor Rosenfeld’s opinion that it was more likely than not that NH provided an accurate account of events that occurred during the incident to police Dr Obeid stated:-

“This is not necessarily correct. My colleague has not explained why NH’s recall of the event could not have represented a fixed delusion or falsely recalled memory, such as occurred with her numerous disagreements with other residents”

9. Dr Obeid opined that at the time she made her police statement NH did not have dementia but rather she suffered the effects of a significant brain injury which was objectively moderately-severe. This was evidenced by her inability to continue to live at home, her inability to recall personal medical facts and her propensity to have behavioural disturbances and delusional thoughts.

10. However, Dr Obeid went on to state that he did not doubt that NH would have at all times understood her obligation to be truthful. He stated:-

“The difficultly before her would not be in terms of understanding to be truthful, but rather in accurately recalling or understanding complex situations and/or differentiating them from delusional thoughts”

48. In his evidence in chief Dr Obeid gave evidence about the two brain scans taken on 19 November 2018. His evidence was that the more prominent finding on the scans was how shrunken the frontal lobes are compared to other shrinkage in the brain. He considered that to be consistent with the frontal lobe damage suffered by NH as a result of the fall in May 2018.

49. Dr Obeid gave evidence that dementia is a gradually progressive neurodegenerative disease resulting in a decline in function over many years. It can not be diagnosed from radiological images but would depend on the history of the person, the progression of symptoms, Mini-Mental State testing and more cognitive testing combined with radiological images.

50. Dr Obeid did not have the opportunity to examine NH. He gave evidence that it was always preferable to assess and examine a patient. However, in this case he did not believe that his diagnosis would change unless there was significantly different information that he had not been provided with.

51. Dr Obeid was asked about [1.10] of his report where he referred to some of the instances recorded in the Progress Notes. He was asked his opinion and answered:-

A. There appear to be a pattern of cognitive and behavioural issues with the late [NH] in which she appeared to have difficulty recalling the exact nature of events that had occurred. Some of these events were events that appear on more objective features that - it appears that they did not occur and then other things she appears to have forgotten that had occurred. So, that to me suggests a pattern of cognitive and behavioural issues that seem to span from prior to the incident of the alleged assault and ongoing, and I did form the opinion that these features would be consistent with the frontal lobe injuries that she suffered during the fall that occurred in May 2018.

Q. You just mentioned frontal lobe injuries. What are the symptoms for frontal lobe injuries, Doctor?

A. Well, the frontal lobes are very important parts of the brain, of the front part of the brain obviously with the name frontal. They're just behind the frontal area of the skull. They're responsible for a lot of our social cognition and behaviour that occurs, not so much memory, but more to do with motivation, planning, executive functions, social behaviour, regulating emotions, personality and being able to inhibit, if you like, our base instincts. They're the parts of the brain that stop us from just blurting out things that we might be thinking and, you know, trying to keep things in check in a social environment as well as, I guess, really is sort of organising oneself and being able to cope in a - on your own and undertake all the activities and planning that one would need to do in order to live independently and function well in society.

52. Dr Obeid agreed with Professor Rosenfeld’s evidence that it was possible that some of the incidents may have happened at another point in time.

53. In relation to the increase in NH’s Mini-Mental Score from 21 to 23 out of 30 over a period of 10 months in 2021 Dr Obeid stated that it was “quite unusual in someone with dementia of any sort to have a stabilisation or an improvement” in their score over time. There was agreement between the experts that the MMSE does not specifically test frontal lobe functions.

54. Dr Obeid gave evidence that he disagreed with Professor Rosenfeld’s opinion that NH suffered from underlying brain disease for a considerable period of time even prior to the fall and head injury. He stated that there was no significant evidence in any of the material that he was provided with to support that opinion.

55. Finally, Dr Obeid was asked in chief:-

Q. Doctor, I asked you earlier about those instances that you've listed on page 5, 6 and 7 of your report and I think your answer was that you agreed with Professor Rosenfeld that it's quite possible those instances happened at another place or time. With the allegations that have been made against Mr Poudel on 28 February 2020, could they also be instances that may have happened in another place or time?

A. Yes, or - or indeed, may - may not have occurred. May have been a - what we would call in medical terms a confabulation.

56. In cross-examination Dr Obeid adhered to his opinion that NH suffered a brain injury that led to a decline in her function. It was his opinion that she did not have a dementia, a vascular dementia or any other neurodegenerative dementia. He gave further evidence that NH was still suffering the residual effects of her traumatic brain injury in 2020 and 2021.

57. Dr Obeid also adhered to his opinion that dementias generally develop over many years and that there was no evidence of dementia in 2018.

58. In relation to NH’s recorded interview in March 2020 Dr Obeid gave the following evidence:-

Q. In that interview, did you form the opinion that [NH] was able to answer questions that were posed to her?

A. She - she certainly did answer questions, yes.

Q. And at times, if she became repetitive or tangential in her answer, if she was brought back to the question, it appeared that she understood that and went on to answer the specific question?

A. Yes.

Q. And give responsive answers although a question may need to be repeated for that to occur?

A. Yes - yes, that was evident.

Q. She also, during that interview, made some concessions that she couldn't recall if one or two fingers were used, do you remember that?

A. Yes.

Q. And also, she indicated that she could not recall if an actual shower occurred?

A. Yes, I do - I recall that that's what she said.

Q. Are those sorts of concessions something that you would expect in a fixed delusion about an event?

A. Do - do you mean the - the uncertainty about whether it was one or two fingers--

Q. Yes.

A. --or - it - it wouldn't necessarily be inconsistent with it. Often - often, they are fairly systematised, so the person's usually consistent with what they say each time. I mean, I - I wouldn't be able to say whether it would be - you know, whether they would have to only say one finger or two fingers all the time, but certainly, her explanation of it did appear to be quite well systematised.

59. In relation to the brain scans in Exhibit E, Dr Obeid agreed that there was no direct relationship between changes shown on the scan and cognitive dysfunction. It was put to Dr Obeid that the scans demonstrated underlying vascular brain disease to which he replied “there are – yeah, I’d say that would be, there are mild vascular changes are there”.

60. Dr Obeid gave the following evidence about the frontal lobe atrophy as depicted on the scans:-

Q. Would you agree that the frontal lobe atrophy could be - as seen on the scans in 2018, I think it's November of 2018 - a combination of the injury from the fall and an underlying vascular disease?

A. I guess it would be possible, although it seems like the frontal lobe atrophy is out of proportion to the atrophy in other areas. So, I mean one is limited somewhat by the fact that there's only two pictures being presented here, so that's not an entire brain scan. One would normally like to look at all the cuts in the brain to make a firm judgment, but on the cuts that I've been given the frontal lobe seems significantly disproportionately atrophied compared to the other areas. So you can trace around the whiteness of the skull and look at the brain volume in all of the other areas, and in all the other areas the brain matter goes to the periphery of the skull. Whereas in the frontal lobes there's a good centimetre or two that it's shrunken away from the skull, which suggests that the frontal lobes are disproportionately atrophic. If it was due to a general process like vascular disease, you would expect all of the areas to be atrophic to a similar extent.

61. Dr Obeid was asked about the difference in his opinion from that of Professor Rosenfeld in relation to frontal atrophy as follows:-

Q. If we refer to perhaps given the difference in opinion in relation to the frontal atrophy, I understand what you've just said. In relation to the other vascular changes do you also think that that could be the case or may they have been there before the fall?

A. Yes, the vascular changes were likely to be there well-before the fall. These are things that usually develop over many decades and people with high blood pressure or other vascular risk factors like cholesterol or smoking or diabetes.

Q. You indicate that from the time of the fall there would've maybe been a spike in cognitive impairment that then became static level. Do I take it that you then believe that from the time of the fall onwards there would've been issues with accuracy in recalling events?

A. Which events? Distant events or near term events?

Q. Near term events?

A. I guess in general that we do often find the people with a brain injury in the acute stage will have some amnesia, which can event be tested using well-validated scales.

Q. What about confabulation, would that be something that you would expect to see from the point of the injury onwards?

A. In my experience it usually develops a bit later on. I think in the first instances of the brain injury often the person is not well, they might have issues with speech and thinking clearly, and they wouldn't often have confabulations as such. They're often found a little bit later when the person settles down. From the acute stage of the injury.

62. Dr Obeid was taken to entries in the Progress Notes which demonstrated a lack of memory at times for NH. He gave the following evidence:-

Q. You would agree that not recalling is an issue of memory?

A. Yes.

Q. And that is different to confabulation?

A. Yes, it is, yeah, confabulation is usually a positive thing.

Q. Did I also understand your evidence earlier to be that the frontal lobe is not so much responsible for memory?

A. Yes, not - certainly not compared to the temporal lobes or the hippocampus.

Q. So how is it that a lack of recall or a lack of memory helps to inform you that is a frontal lobe atrophy cause?

A. Some - the frontal lobes do have a role in memory but it's - it's a different sort of role. So frontal type memory deficits tend to occur due to a concentration problem as opposed to a recall problem, so someone with frontal lobe disease, if they don't - if they don't spend enough time sort of getting the information in, then they can sometimes not recall it, but things that they - the memories that are laid down are usually well recalled after that.

Whereas people with Alzheimer's disease, as hard as they try to remember something, they can't remember it. So, it's true that frontal lobe problems are not characteristically characterised by memory issues, but there is a frontal type memory deficit and it tends to be more of that tension, concentration sort of problem as opposed to the - as opposed to true recall of information that was previously learnt.

In fact, the neuropsychologists specifically call the - the Alzheimer's type problem a hippocampal memory deficit, in other words, it's due to the hippocampus of the temporal lobes whereas they might call this a frontal - frontal memory deficit. I - I do understand where you're coming from and it's - it's true that memory is not primarily the function of the frontal lobes, but there can be some frontal lobe impact there in - in terms of a person being able to correctly interpret or understand what's going on and concentrate enough to be able to make sense of what's going on as opposed to the - just memory recall.

Q. You indicated that somebody might recall a memory that's laid down. By that do you mean a memory prior to an injury that's caused it that's significant, for example, family members and those sorts of things; or do you mean a memory that's significant and laid down because of its importance?

A. It - it could - you're talking about in frontal lobe damage?

Q. Yes.

A. Yes, it could indeed be both. The long term memory is usually reasonably good but if it's - you know, if they try really hard and they've spent time sort of laying down that memory, they - they can recall it later as well.

Q. So if, for example, something traumatic happens to a person and they spend some time thinking about that, then that can create an accurate memory?

A. I guess that's possible, yes.

63. On the issue of NH becoming aggressive at times Dr Obeid was asked as follows:-

Q. In regards to [NH]'s presentation, the incidences after 28 February 2020 which is the date we're concerned about in this courtroom, the Progress Notes indicate that she is becoming aggressive in May to June of 2020. Is that also different to confabulation?

A. Well, yes, aggression is different. Aggression is a physical or verbal behaviour, whereas confabulation is just the - the false - the false statement of a fact that's assumed to be true by the person.

Q. And the development of someone becoming aggressive, is that something that is a symptom of dementia?

A. Yes, that - that is a possible symptom.

64. Dr Obeid agreed, on the basis of a Progress Note dated 25 January 2021, that the staff at LGNH had noted a change in NH’s behaviour as at that date, and that she had changed her behaviour somewhat significantly. He also noted that she thereafter had a confirmed diagnosis of dementia on 2 February 2021. Dr Obeid stated that he would like see the reasoning for that and on what basis that determination was made before he would accept another person’s assessment. Dr Obeid was taken to the following Progress Note on 12 February 2021:-

“Both residents have a diagnosis of dementia. OPMHT called for follow up as ongoing client in her cognitive impairment noted and have since shown increased stress and is negatively impacting the other residents”

65. He gave the following evidence:-

Q. Firstly, do you have the same answer in terms of whether or not you accept the diagnosis of dementia given it's from the same team?

A. That would be reasonable evidence that dementia is developing. Some people with frontal lobe damage can get some progressive deficits as well later on. So, that's another possible explanation, but I would be - that would be reasonable evidence that a dementia is developing.

Q. Now, you indicated before you like to be aware of the qualifications of the team before you consider whether or not you'll accept their assessment. You're aware of Doctor Rosenfeld's qualifications?

A. Yes, very much so.

Q. You're aware that he observed the same video recording that you did taken in February 2020?

A. Yes.

…

Q. You did not have the benefit of interviewing [NH] but he did and he was able to take from her a history of the incident?

A. Yes.

Q. And he indicated that she was consistent in the history she gave him to what he saw on the video?

A. Yeah, that was certainly his opinion, yes.

Q. He indicated yesterday when he was giving evidence, otherwise he noticed a significant difference in her presentation from the woman he saw on the video to the person he interviewed in November 2021. Would you accept his opinion that that demonstrates a progression in cognitive impairment?

A. I probably need more information…

66. Dr Obeid gave further evidence that the recorded police statement on 2 March 2020 was consistent with what NH told staff because there was a short time delay between the video statement and the report to staff. He was asked:-

Q. Do you agree that if she's able to repeat consistently again over a year later that that's not a consistency that's able to be explained by a short time delay?

A. Yes, that's correct, it - I guess, the other explanation would be a - a systemised delusion. So something more - you know, that's - I guess, like I just said, it - it's either explicable by a systematised delusion or very good recall, one of the two.

Q. If one has a systematised delusion, would you expect that the details of that delusion included the - for example, details like whether or not there was a shower, or how many fingers there were used?

A. Yes, that would be a systematised delusion.

67. It was put to Dr Obeid that Professor Rosenfeld’s opinion that NH’s recall of events in her recorded interview was more likely than not to be an accurate account was because it was a memory laid down in the brain of a traumatic event, he gave the following evidence:-

Q. Is it, however, a situation where it is possible that it's a recollection of an actual event?

A. I'm just having difficulty fitting that in to someone who's got moderately severe dementia. So, I guess it's theoretically possible, but it would be - would have to be most unusual.

68. Dr Obeid gave evidence that common symptoms in mild dementia include forgetting the details of a recent event, though still remembering the event itself. He gave the following evidence:-

Q. So if [NH] suffered from a mild dementia in February of 2020, then it would be possible for her to remember an event but forget details around it?

A. Yes, they - they would - they might sort of remember in vague terms, and not be able to recall the - the significant details of it, but they certainly might be able to remember something about that event. But it'd be unusual for them to describe it in very good detail.

69. In re-examination Dr Obeid explained what he meant by the word “systematised”. He gave the following answer:-

A. Where it's repeated with - like, you know, significant detail that seems to describe the event very well, I guess systematic is - is another word that could be used. It's - it's relayed in significant detail with you know, all - all the minutiae of the events like you know, for example, in the video that was recorded where [NH] was asked to spread her legs and then was given an examination and the exact wording that was given, which is, I have to do this examination, I've been specially trained, it's in order to make you clean, so all of those very specific details, to me suggests that it's - you know, there's a systematic component to it, and the fact that it was recalled in the same way later on, seems to suggest that you know, that was - was a very fixed confabulation or delusion.

The Crown’s submissions in relation to admissibility of the ERISP

70. The Crown relied on a written outline of submissions in which it was submitted that the interview should be admitted for the following reasons:-

1. Section 122 LEPRA was complied with (the requirement for the Custody Manager to caution, and give a summary of Part 9 LEPRA to the accused).

2. The accused was not considered to be a ‘vulnerable person’ for the purposes of s28 LEPRA. He participated in the ERISP by speaking English and his communication skills indicate that he is proficient in that language. There is other evidence of this (including the hand-written letter he wrote to his employer dated 29/02/2020).

3. The accused was asked if he wished to partake in an electronically recorded interview to which he agreed – [206] statement of DSC E Sutton

4. During the interview, after the accused stated he wished to remain silent (A8) he was asked if he agreed to the recording being made and he replies “Yes” (A12).

5. A further full caution was then given by the interviewing officer at A15-A17. Defence have argued that a caution was not given in regards to the recording being used in court, however it was given at Q17. At Q19 police confirm that he was previously cautioned as well.

6. The accused exercised his right to silence in response to some questions, but chose to answer other questions. Where he chose to exercise his right to silence, the interviewing officers did not persist with their questioning in relation to those matters. E.g. see A105, A129, A130 and A131. He also exercised his right not to sign the document that he agreed he had given to the nursing home.

7. At the end of the interview, the independent officer asked the accused if he made the interview of his own free will and he said “Yeah” (A184). He said that no one made him do it and he wanted to do it (A185). He said that there had not been any threat, promise or inducement held out to him to give answers (A186). He said he did not have any complaints to make about the manner in which he had been interviewed (A187).

8. The admissions made during the interview were not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind – ref s.84 Evidence Act 1995.

71. The Crown submitted that it was always a matter of degree as to whether police questioning has gone too far recognising the duty of the investigating police officer on the one hand and the right of a suspect on the other, relying on R v Fernando & Anor [1999] NSWCCA 66 at [32]. Merely because a suspect said that he did not wish to answer any further questions does not render inadmissible answers to further questions which are answered provided that the questions are fair and proper and the answers are otherwise admissible, relying on R v Plevac (1995) 84 A Crim R 570 at 580.

72. Here the persistence of the questioning by the investigative police was of a low-degree. When the accused said that he did not want to answer questions the police moved on to a different topic. No complaint was made to the independent officer at the conclusion of the interview by the accused who participated in the interview by speaking English and at no stage did he say that he did not understand any questions. Rather the accused displayed an awareness of his right to silence by choosing to exercise it when the specific details of the allegation were put to him.

73. In her oral submissions the Crown conceded that the Crown did not rely on that part of the interview referred to in the transcript as Q54-A66. Otherwise, the Crown rehearsed the written submissions submitting that the accused knew and acknowledged his right to silence, that he understood the questions and spoke in the English language, that at times he corrected the police officer and when he did not understand he said so, for example by saying “I didn’t get that”. He also declined to sign the document identified by him during the interview and had clearly worked in an English-speaking environment. When asked what admissions the Crown relied on in the ERISP, the court was informed that that related to the fact that on 28 February 2020 the accused showered the complainant at LGNH. That was not a fact in dispute in the trial proper.

The Accused’s submissions in relation to admissibility of the ERISP

74. The accused by his Counsel also relied on a written outline of submissions in relation to the admissibility of the ERISP. It was submitted that before his arrest police were aware that the accused had no criminal record and no dealings with police, that English was not his first language and that he was a relatively new arrival to Australia. It was submitted that police were conscious of the accused’s lack of familiarity with police powers and the justice system and notwithstanding that they conducted an interview against the accused’s legal rights and expressed wishes.

75. The accused acknowledged that he was explained his rights at the police station and exercised those rights. At the commencement of the interview he acknowledged that the rights had been explained to him and he stated that he did not wish to answer questions whilst it was submitted that no caution was administered in the interview, (i.e. “that anything you say may be used in court”), that was not in fact the case.

76. It was submitted that questions during the interview which had a focus upon an internal aged care report (Q32-Q72) should be excluded because an inference may be drawn that this prior non-police investigation had found him guilty whereas that was not in fact the case. It was submitted that the police officers acted deliberately unlawfully in obtaining the interview, that they knew the accused was a vulnerable person by way of little knowledge of the justice system and police powers and the court could not condone such an abuse of power. It was also noted that the accused did exercise his right of silence in relation to a number of questions asked of him.

77. In his oral submissions Counsel for the accused, who did not draft the written outline of submissions, informed the court that the submissions were drafted at a time when there was going to be a jury trial. He properly conceded that the fact that a judge alone trial had been agreed took “the sting” out of the accused’s submissions. It was conceded, properly in my view, that the accused spoke English and understood the questions. Regardless of that the accused did make a specific request that he would just like to remain silent and ignoring that the interview continued. Counsel conceded, again properly in my view, that on an objective viewing of the ERISP there was no suborning of him by the police officers.

Determination

78. Having viewed the ERISP I find that the accused was explained and understood his rights and exercised his right to silence during the ERISP. At no time did the investigating police suborn the accused as conceded by his Counsel. Further, the accused made no admission of wrongful conduct, clearly understood the questions he was being asked in English and answered those questions he chose. He was not a “vulnerable person” as he clearly understood his rights and exercised them. I find that the ERISP was relevant and had some probative value. I also find that the accused participated in it voluntarily and exercised his right to silence whenever he wanted to during the interview. At no time did the police officers suborn the accused or demonstrate persistence which crossed the line so as to render the evidence unfair. Further, as this is a judge alone trial, I can properly instruct myself as to the fact that the accused declined to answer questions could not be used against him in any way – see Priday v R [2019] NSWCCA 272 at [58]-[65]. For those reasons I allowed the Crown to adduce the ERISP into evidence in the Crown case.

Crown submissions on whether the recorded interview of NH is admissible pursuant to s65 of the Evidence Act

79. The Crown also relied on an outline of written submissions, relying on s65(2)(b) and (c) to have the recorded interview admitted. It was submitted that there was no issue that the complainant was not available given that she is deceased. The issue was whether s65(2)(b) or (c) applies to the recorded interview which took place on 2 March 2020 “shortly after the asserted fact” occurred. The main question for the court was whether the statement was made in circumstances that make it “unlikely that it was a fabrication” or was made in circumstances that make it “highly probable” that the representation is reliable.

80. The Crown submitted that s65(2)(b) was the more appropriate application in the circumstances here.

81. The Crown submitted that the question posed in s65(2)(b) is whether the statement was made in circumstances that make in “unlikely” that it was a fabrication. The test is not whether the statement is reliable beyond reasonable doubt, which was a question for the finder of fact in the trial, should the evidence be admitted.

82. At issue was the competence of the complainant to give evidence at the time she made the statement to police. The Crown submitted that the prejudice relied on by the accused appears to be whether or not the complainant was able to accurately recall a situation or differentiate reality from delusional thoughts.

83. The particular assertions relied on by the Crown in the statement were identified as the assertions of the alleged sexual conduct of the accused whilst showering the complainant on 28 February 2020. On a copy of the transcript of the recorded interview the Crown highlighted the particular representations relied on. The Crown noted that the complainant could not be cross-examined on her statement but submitted that there is a public interest in prosecuting serious crimes which was not outweighed by the danger of unfair prejudice to the accused as submitted by the accused’s Counsel, relying on Prasad v R [2020] NSWCCA 349.

84. The Crown also relied on Priday v R [2019] NSWCCA 272 where the principles were applied to statements made by the complainant of a sexual assault who had died but had made statements to a doctor and police officer on the day of the alleged offences. The statements were admitted as exceptions to the hearsay rule pursuant to s65(2)(b) noting that the court must be satisfied here that s61 of the Evidence Act does not operate so as the exclude the evidence. The Crown submitted the considerations here were extremely similar to those in Priday.

85. The Crown submitted that the court will prefer the opinions of Professor Rosenfeld over the opinions of Dr Obeid. Professor Rosenfeld had opined that at the time of the alleged offences the complainant suffered dementia of mild severity. The Crown relied upon the evidence Professor Rosenfeld gave as follows:-

1. “NH was able to provide a reasonably clear and detailed history of the events that took place.”

2. “The account NH provided was however consistent with clarity about the details of the incident.”

3. “In my experience individuals with dementing illness… are usually able to give a reasonable and accurate account of recent events particularly in the case of memorable and traumatic events.” He goes on to state “a traumatic event is more likely to be recalled in greater detail and for a longer period than a transient, insignificant occurrence or memory”

4. “It is more likely than not that NH was able to recall and provide an accurate account of recent events that had occurred especially those events that had been memorable and traumatic for her”

5. “The account that she provided is likely to have described real events that occurred to her – that NH suffered from a dementing illness makes it less likely, in my opinion, that the events that she recounted were not based on her experiences at that time. That she recounted those events to attending nurses soon after and then recounted those events to others, the doctor and the interviewer not long after, more likely than not indicate that they occurred and the veracity of her recollections of those events.”

86. Professor Rosenfeld also gave evidence that it was more likely than not that NH understood the concept of truthfulness and believed the statements that she was provided were truthful.

87. The Crown submitted that if the court accepts the opinions of Professor Rosenfeld set out above then the statement made by the complainant shortly after the asserted fact occurred and those circumstances, made it unlikely that her representations were a fabrication. She made complainants to the nursing staff, her doctor, the medical officer who conducted the SAIK and the police within the same time period of two days. She also acted in a manner consistent with someone who had suffered the alleged sexual offending.

88. The Crown submitted that s61 of the Evidence Act would not operate to exclude the exception to the hearsay rule found at s65(2). In that case, there was no danger of there being an unfair prejudice to the accused which would outweigh the probative value of the evidence, on the basis of the competency of the complainant. The Crown submitted here that the evidence was at the highest level of probative value as without it the prosecution has no evidence other than the complaint evidence of the alleged offending. The Crown relied on both Prasad v R and Priday v R, supra, to submit that the evidence is not of a sort where the danger of unfair prejudice outweighs the probative value of the evidence. Further, there was less danger of unfair prejudice to the accused in a judge alone trial where appropriate directions will be given and the trial judge was required to provide reasons for any findings.

89. In her oral submissions the Crown rehearsed the written submissions. It was submitted that it was clear from both viewing the video itself and also from the opinions of both Professor Rosenfeld and Dr Obeid that NH was competent for the purposes of s61 of the Evidence Act as at 2 March 2020. Both doctors indicated that she was able to understand the questions asked of her and answer them. The Crown relied on s65(2)(b) of the Evidence Act for admissibility of the statement which was made shortly after the alleged events in circumstances which it submitted made it unlikely to be a fabrication. Under subsection 2(b) no finding as to reliability of the representations was required. Whilst Professor Rosenfeld had made a concession in cross-examination that it was a possibility that the statement was confabulation by NH, he indicated that in his opinion that it was not but rather she was recalling events which occurred to her. It was submitted that Professor Rosenfeld had greater experience over a longer period of time and had the advantage of meeting the complainant. He also took the brain injury into consideration from the outset.

90. The Crown submitted that by the time of the ACAT assessment (Exhibit 2) in November 2018, NH was suffering a mild cognitive impairment. The Crown referred to evidence of the changes in NH’s behaviour throughout late 2020 and into 2021 which were acknowledged by Dr Obeid. Dr Obeid initially did not accept that NH suffered dementia as a result of vascular disease however he altered his opinion “albeit slightly” when presented with evidence of some indicators of change in behaviour and symptomatology.

91. The Crown submitted that if the statement of NH made on 2 March 2020 is to be admitted then the evidence of complaint should also be admitted at trial. The statement was evidence that was clearly of significant probative value and whilst it was prejudice to the accused by his inability to cross-examine the complainant, there was no danger of unfair prejudice that outweighs the probative value of the evidence. In a judge alone trial, directions would be given and reasons for any findings of fact.

The accused’s submissions in relation to the complainant’s statement

92. Counsel for the accused also relied on a written outline of submissions objecting to the statement being admitted pursuant to s137 of the Evidence Act which he submitted was a mandatory provision, namely that the court must “refuse to admit the evidence if it’s probative value is outweighed by the danger of unfair prejudice.” The accused referred to R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61 in which Sheller JA noted that the task set by s137 is analogous to the exercise of a judicial discretion.

93. The accused set out the opinions of Professor Rosenfeld and in particular that the complainant suffers with “moderately severe cognitive impairment and dementia most likely associated with vascular brain disease. The degree to which previous head injury has contributed to cognitive impairment is unclear. Brain imaging has not been done.”

94. The accused submitted that Professor Rosenfeld had also stated that the brain injury resulting from her fall would have resolved within months of the trauma however there were long term effects. The degree to which her current cognitive impairment is related to the injury versus the underlying vascular disease is “uncertain”. The accused also set out the opinions of Dr Obeid as summarised above. They include his opinion that NH could not reliably have been able to recall information about events in February 2020 at any time let alone in March 2021.

234. In this trial the Crown relies upon evidence of what the complainant said to other people about the alleged assaults, that such an assault did occur. The evidence the Crown relies upon falls into two categories. They are:

1. The complaint made by NH to Prabina Baniya Chhetri and Nikita Guatam Poudel on 29 February 2020.

2. The complaints made by NH separately to Annastacia Wainaina, Dr Eleanor Freedman and Dr Peter Walker on 29 February 2020.

3. The complaint made by NH to Detective Senior Constable Emma Sutton and Detective Sergeant Gladwin on 29 February 2020.

4. The further complaint, in the form of a recorded statement, made by NH to Detective Senior Constable Emma Sutton and Detective Sergeant Gladwin on 2 March 2020.

235. I do not intend to go over all of that evidence. It is for me to decide whether the complaints were made and what their contents were.

236. If I find that the complaints were made substantially to the effect that each witness gave evidence of, then you can use evidence of what was said in the complaint as some evidence that such an assault did occur. The law says that because of the circumstances in which the complaint was made, a decider of fact is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against a person, namely, the accused. I am entitled to find that the complaints were made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegations are less likely to have been fabricated by each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion in this particular case and so treat the complaints as evidence of the alleged sexual assault by the accused in addition to the evidence that has been given about it in this courtroom. If I do use it as some evidence of the sexual assault, that is the subject of the charge, then what weight I give it is again a matter for me.

237. Whether I do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that the Complainant raised the allegations against the accused at the time and in the manner that she did, would lead you to accept the evidence given by the Complainant in her recorded statement. In other words, it makes the evidence of the Complainant more believable if she had not raised the allegations as she did

238. Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should ask myself is, “Did the Complainant act in the way I would expect her to act if she had been assaulted as she said she was?” “Is what she did the sort of conduct that I would expect persons who have been assaulted in that way?” If I think that the Complainant has done what I would expect someone in her position to do, that may support the Crown case because I may find that there is a consistency between the complainant’s conduct and the allegations that she made against the accused Prayash Poudel.

239. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted, as she described, then that may indicate that the allegations are false. But I must bear in mind when considering this issue that there may be good reasons why the Complainant did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegations must be false.

240. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion.

Expert witness evidence direction

241. In this case, Dr Tuly Rosenfeld, Dr John Obied, Dr Eleanor Freedman and Dr Peter Walker have been called as expert witnesses. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion within his or her particular area of expertise. Other witnesses may speak only as to the facts, that is, what they saw or heard and are not permitted to express their opinions.

242. Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where the opinion is based on that witness’s specialised knowledge.

243. Expert evidence is admitted to provide me with medical information relating to the complainant’s mental condition and as to any potential brain injuries or diseases that the complainant may have had, and an opinion on that particular topic was within both Dr Rosenfeld and Dr Obied’s expertise.

244. Further expert evidence was admitted to provide me with medical information regarding the likelihood of NH having visible injuries as a result of the alleged incident and an opinion on that particular topic was within Dr Freedman’s expertise.

245. The final expert evidence that was admitted was by Dr Walker who was the complainant’s GP and he provided me with medical information regarding the general health and condition of the complainant, this information was within Dr Walker’s expertise. It is likely that all of the above expert evidence is outside the experience and knowledge of the average lay person.

246. The expert evidence is before me as part of all the evidence to assist me in determining whether the complainant’s evidence is compromised as a result of her mental condition or whether she was competent and capable of giving reliable evidence, and whether there should have been physical injuries sustained as a result of the alleged assault because of the complainant’s psoriasis condition. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of Dr Rosenfeld, Dr Obied, Dr Freedman or Dr Walker then I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my commonsense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

Section 292C of the Criminal Procedure Act 1986 direction

247. It is important that I give myself a direction regarding the lack of physical injury found on the complainant. It is agreed that there were no physical injuries found on the complainant. People who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and the absence of injury or violence, or threats of injury or violence, does not necessarily mean that the complainant was not telling the truth about the alleged sexual intercourse and sexual touching.

Markuleski multiple counts direction – R v Markuleski (2001) 52 NSWLR 82

248. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome.

249. If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainant’s evidence, I would have to consider how that conclusion affects my consideration of the remaining count.

250. If I have a reasonable doubt about the complainant’s credibility in relation to either of the counts, I might believe it difficult to see how the evidence of the complainant could be accepted in relation to the other count.

Right to silence direction

251. All people in this country have a right to silence – that is, to choose not to answer questions put to them by the Police. That is what the Police Officer told the accused when he was asked if he wanted to answer their questions.

252. There are some exceptions to this right, for example, when a Police Officer asks the legal owner of a car, who was driving it at the time of a traffic offence. But those exceptions do not apply here.

253. In this case, it would be quite wrong if Mr Poudel, having listened to what the Police said, and having decided to exercise his right of silence, later found that a Judge was using that fact against him. I must not do that.

254. Mr Poudel gave an ERISP interview. His evidence is to be assessed like that of any other witness. There is no onus on him to prove anything. The onus remains on the Crown at all times to prove the elements of each charge beyond reasonable doubt.

255. If I do not accept the evidence of Mr Poudel, it does not mean the Crown have proved its case against him. In that event, I put to one side the evidence of Mr Poudel and determine on the basis of all other evidence whether the Crown has proved each charge against him beyond reasonable doubt. If it has, my verdict will be guilty. If not, my verdict must be not guilty.

Failure of accused to give evidence direction

256. The accused has not given any evidence in response to the Crown’s case.

257. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.

258. The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

259. I direct myself, as a matter of law, that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by myself as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

260. I must not speculate about what might have been said in evidence if the accused had given evidence.

Liberato direction in respect of the accused’s evidence

261. The accused gave an account of events in his letter to the nursing home. That account is to the effect that he did shower the complainant but that he did not digitally penetrate or sexually touch the complainant. He agreed in his ERISP interview that he did shower the complainant, but made no admission of wrongdoing.

262. It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations.

263. It follows from this:

1. First, if I believe the accused’s evidence, obviously I must acquit.

2. Second, if I have some difficulty accepting the accused’s evidence, but think it might be true, then I must acquit.

3. Third, if I do not believe the accused’s evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

264. As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charges which it brings against the accused, and there is no onus on the accused to prove that he is not guilty.

Lies used at evidence of consciousness of guilty direction

265. The next direction I must give myself concerns the evidence relied on by the Crown of the words written by the accused on 29 February 2020 in his handwritten report of event prepared for LGNH. The Crown says that the accused lied because that evidence was inconsistent with what the complainant told multiple witnesses including the police in her recorded interview, about the alleged sexual assault.

266. First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.

267. If I find that the statement written by the accused was a lie, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has. I may take this lie into account as evidence of the accused’s guilt but I can only do that if I find two further things which I will refer to shortly. When I say I can take it into account as evidence of the accused’s guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told a lie that this finding can prove the guilt of the accused by itself.

268. Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before I can use the lie as some evidence of the accused’s guilt I must find two further matters proved.

269. First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed. It must relate to some significant circumstances or events connected with the alleged offences. The Crown says it is relevant because it amounts to a complete denial that the offences took place, whereas the accused declined to answer any questions regarding any wrongdoing, in doing so not denying or confirming that the offences took place.

270. Secondly, I must find that the reason the accused told this lie was because he feared that telling the truth might reveal his guilt in respect of the charges he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.

271. I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling lies, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.

272. If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, then it cannot be used as evidence of the accused’s guilt. If that is the case, I should put them to one side and focus my deliberations upon the other evidence in the case.

273. Let me summarise what I have just said. Before I can use what the accused wrote on the 29 February 2020 after the alleged offences as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lies related to some significant circumstances or events connected with the alleged offences. I must find that the reason the accused lied was because he feared that the truth would implicate him in relation to the commission of the offences for which he is now on trial.

274. The defence case in relation to this issue is that he did not lie in his statement and the assaults did not occur.

Good character direction

275. The Accused relies on evidence from police to establish that he is a person of good character in a particular respect. That evidence was to the effect that Prayash Poudel is a person of good character namely:

1. That he has no criminal history, having never been charged with, or convicted of, any offence in New South Wales or Nepal.

276. The law provides that a Judge is entitled to take evidence of an accused’s good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Mr Poudel is a person of good character in those respects is relevant to the likelihood of him having committed the offences alleged. I can take into account Mr Poudel’s good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for myself.

277. Further, a Judge can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, either in his handwritten statement of events or in giving an account of the events in answer to questions asked by the Police. Whether I reason in that way is a matter for me to determine.

278. None of this means, of course, that good character provides Mr Poudel with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of Mr Poudel. What weight I give to the fact that the accused is a person of good character in these two respects is completely a matter for me, but I should take that fact into account in the way I have indicated to myself. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time.

Direction pursuant to 165(1)(a) & (c) of the Evidence Act 1995

279. I now give myself a direction concerning the evidence of the complainant, NH. I direct myself that the evidence of the complainant may be unreliable for the following reasons:

1. That the evidence relied on by the Crown, being NH’s interview with police conducted on 2 March 2020 is hearsay evidence, and

2. That this evidence relied on by the Crown may be affected by age, ill health (whether physical or mental), injury or the like.

280. As such I should scrutinise the evidence of the complainant with care and approach her evidence with considerable caution before I act upon it.

Findings of fact

281. In addition to the agreed facts in Exhibit A I am required to set out my findings of fact based on the totality of the evidence in the trial. In doing so, I am mindful not only of the directions of law set out above but also that the evidence of the complainant in her recorded interview has not been tested by cross-examination. That evidence is critical to the Crown case in that unless I find it to be reliable the Crown cannot establish proof beyond reasonable doubt of the essential elements of the offences. I am also mindful, in accordance with the directions of law I have given myself that if I accept the statement made by the accused, or think it might be true, then I must acquit the accused on both counts. The issue to be determined is whether the alleged sexual assault and sexual touching took place. If I find that it did in relation to both counts, there is no issue between the parties that it occurred without the consent of NH and knowing that NH was not consenting.

282. On the whole of the evidence I make the following findings of fact:

1. On 30 May 2018 NH fell, suffering a traumatic brain injury involving a fracture to the occipital bone, contrecoupe cerebral damage and intracranial haemorrhages.

2. Prior to that fall NH was a 91-year-old widow, independent in personal care but requiring some assistance from family with daily tasks including shopping, cleaning, transport, some meals and her finances.

3. When assessed two months after the fall she was found to have some slight cognitive impairment.

4. A brain scan taken by Dr Brunacci on 30 May 2018 showed frontal lobe contusions, a small sub-arachnoid haemorrhage and a non-displaced skull fracture.

5. There was no evidence of cognitive testing of NH whilst she was hospitalised.

6. After being admitted to a transitional care unit NH moved into LGNH on 29 September 2018.

7. Brain scans taken on 19 November 2018 demonstrated significant frontal lobe atrophy as well as wide-spread chronic vascular disease.

8. I find that NH’s cognitive impairment deteriorated over time. When assessed by Dr J Wright, a psychiatrist with a speciality in assessing the elderly, on 20 April 2021, she was diagnosed with “moderately severe dementia, likely mixed vascular and Alzheimer’s dementia”.

9. I find that her deterioration in cognitive function was caused by both her brain disease (dementia) and also by her traumatic brain injury (but to an uncertain extent), in that both materially contributed to her cognitive impairment.

10. Progress Notes confirmed the decline in NH’s cognitive function following her admission. The incident reports referred to above include incidents of physical and verbal aggression, as well as reports by NH of events which had not occurred (for example a fall not seen on CCTV, her allegation of stolen jewellery and also an allegation concerning a bus trip that did not take place). These events may properly be categorised as delusional. A number of the allegations were also made by her, like the allegation of sexual assault against the accused, at 0300 hours.

11. I find NH suffered a significant frontal lobe impairment and accept Dr Obeid’s opinion that persons suffering such impairment are capable of well systematised delusions and confabulations. That was demonstrated in NH’s case within a short time of the alleged assault. Professor Rosenfeld agreed that symptoms of frontal lobe damage include individuals being aggressive, exhibiting irrational behaviour and impulse control issues. When asked whether confabulations were such a symptom he answered “not characteristically, but confabulation is more a symptom of severe memory impairment.” He did however agree that the instances outlined in the Progress Notes could be associated with frontal lobe damage.

12. Importantly Professor Rosenfeld also agreed with Dr Obeid’s opinion that “the difficulty for her would not be in terms of understanding to be truthful, but rather inaccurately recalling or understanding complex situations and/or differentiating them from delusional thoughts”. Just as importantly, Professor Rosenfeld conceded that it was possible that the allegations made by NH were inaccurate.

13. I find that the impact of the lockdown caused by the COVID-19 Pandemic resulted in adverse effects on the mental health of older frail people in aged care facilities.

14. I find that accused is a man of good character who was well regarded in his role as a carer and team leader as a good hard working staff member, who had no criminal convictions in NSW or Nepal and I take his good character into account.

Determination

283. In assessing the reliability of the evidence of the complainant, particularly as it was untested by cross-examination, I must have regard to other evidence, particularly as there is no objective evidence in support her allegation of sexual assault in Count 1, ie, that there was no DNA detected following investigation and analysis.

284. The uncontested evidence of Ms Maharajan was that she was present during the whole of the conversation that took place between the accused and NH in which NH gave consent by nodding her head and saying “Ok” when the accused asked her if he could shower her. That was completely at odds with the version given by NH to nursing staff, to Dr Freedman, and to the police thereafter. I therefore find that NH gave consent to the accused to shower her. Later after finishing her other duties, Ms Maharajan went to NH’s room and said goodnight to her to which NH responded without saying more.

285. Although Professor Rosenfeld placed significance on the fact that the complainant was describing a traumatic life event in coming to his opinion that she was giving an accurate account, he also acknowledged that she was occasionally repetitive and occasionally tangential during her police interview. He also agreed that it was a possibility that the allegations she made were inaccurate, and both Professor Rosenfeld and Dr Obeid agreed that it was possible the allegations occurred at another time or in other circumstances.

286. Also relevant was the complainant’s statement that she could not remember the shower, and that she “would not even know whether it was one finger or two fingers” (in respect of Count 1). These are matters that lead me to a conclusion that, notwithstanding the impression that NH was doing her best to be truthful in her recorded interview, her evidence could not be regarded as reliable and accurate.

287. I must also have regard to the good character of the accused. As submitted by the Crown, I could only find that the accused lied in his statement (Exhibit F) so as to give rise to a consciousness of guilt, if I accept NH’s evidence as reliable and accurate. Having regard to the whole of the evidence I find that it is a reasonable possibility that the account given by NH, untested by cross-examination, was a fixed delusion or a falsely recalled memory notwithstanding that it was repeated in substantially the same terms a number of times to nursing staff, to Dr Freedman and the police within a short period of time. Given that reasonable possibility, there is no basis upon which I could find that the accused lied in his statement so as to give rise to a consciousness of guilt. As outlined above, if I find that the version given by the accused in Exhibit F might be true, which I do find, then he must be acquitted.

288. On the whole of the evidence, I am not satisfied that the elements of both Count 1 and Count 2 have been established beyond reasonable doubt, and there is a reasonable inference arising from all of the evidence consistent with the innocence of the accused.

289. For those reasons I find the accused Not Guilty of both counts on the Indictment.

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Decision last updated: 12 October 2022