R v RAG (No.2)

[2024] NSWDC 411

District Court

New South Wales

Medium Neutral Citation:

R v RAG (No.2) [2024] NSWDC 411

Hearing dates:

20-23, 26-30 August, 2-5 September 2024

Date of orders:

11 September 2024

Decision date:

11 September 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs [440]-[441]

Catchwords:

CRIMINAL LAW – Accused not fit to plead because of mental or cognitive impairment – special hearing – whether Accused committed multiple ‘historical’ counts of indecent assault or sexual assault against daughter and granddaughter

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(1), 66C(2)

Criminal Procedure Act 1986 (NSW), ss 56(5), 133(2), 161A

Evidence Act 1995 (NSW), ss 662A, 165B

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), s 56

Road Transport Act 2013 (NSW), s 257

Cases Cited:

Choudhary v The Queen [2013] VSCA 325

DPP v Benjamin Roder(a pseudonym) [2024] HCA 15

Fitzgerald v Kennard (1995) 38 NSWLR 184

Maughan v R [2020] NSWCCA 51

Patrick v The Queen [2014] VSCA 89

R v Markuleski (2001) 52 NSWLR 82

R v O’Donoghue (2005) 151 A Crim R 597

R v Sorlie (1925) 42 W.N (NSW) 152

R v Winner (1995) 79 A Crim R 528

Rao v R [2019] NSWCCA 290

Reed v R [2006] NSWCCA 314

Restricted Decision [2023] NSWCCA 128

RM v R [2024] NSWCCA 148

The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56

The Queen v MMJ [2006] VSCA 226

Texts Cited:

Criminal Trials Bench Book

Category:

Principal judgment

Parties:

RAG (the Accused)
ODPP

Representation:

Counsel:
Ms E Curran (ODPP)
Mr W Tuckey (Accused)

Solicitors:
ODPP
Criminal Defence Lawyers Australia

File Number(s):

2019/00407883; 2020/0068861

Publication restriction:

Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

REASONS FOR JUDGMENT

Background

1. RAG, the Accused, is charged on indictment with multiple charges of indecent and sexual assault offences. The charges concern one of his children, and one of his grandchildren.

2. The case is conducted as a ‘special hearing’ under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (the ‘Act’). On 13 August 2024, Hanley SC DCJ found that the Accused was unfit to be tried in accordance with normal procedures.

3. The nature and conduct of a special hearing must conform to the requirements of s 56 of the Act. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding (s 56(1)). By reason of s 56(9), and in the absence of an election, the question whether the Accused committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.

4. By reason of s 56(5), the Accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged. In this case, the Accused was, as required (s 56(3)), represented; in this case, by Counsel who participated through cross-examination of Crown witnesses, tendering (expert opinion) evidence and supplying written submissions in support of the Accused’s defence.

5. By reason of the nature of the offences, the Accused and complainants’ names and witnesses whose names would likely directly, or indirectly, reveal the complainants’ names, have been anonymised in these reasons.

6. Because of the large number of charges, the interconnection between the complainants and the Accused and other witnesses, early in the hearing, I asked the Crown to provide a ‘family tree’ indicating the connections (MFI 3). An adapted version of that document is annexed (as Annexure ‘A’) to these reasons to assist the reader to understand the close familial relations of the witnesses in this case.

The Indictment

7. The charges on the indictment are set out in the following table. As indicated, I will refer to the complainant concerning charges 1 – 11 (incl) as ‘CG1’ and the complainant who features in charges 12 – 17 (incl) as ‘CG2’.

Charge	The alleged offending by the Accused	The offence
1	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused.	Crimes Act 1900 (NSW), s 66C(2)
2 (in the alternative to 1)	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(1)
3	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(1)
4	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused.	Crimes Act 1900 (NSW), s 66C(2)
5 (in the alternative to 4)	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(1)
6	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused.	Crimes Act 1900 (NSW), s 66C(2)
7 (in the alternative to 6)	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(1)
8	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused.	Crimes Act 1900 (NSW), s 66C(2)
9 (in the alternative to 8)	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(1)
10	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused.	Crimes Act 1900 (NSW), s 66C(2)
11 (in the alternative to 10)	Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused.	Crimes Act 1900 (NSW), s 61M(2)
12	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)
13	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)
14	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)
15	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)
16	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)
17	Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2.	Crimes Act 1900 (NSW), s 61M(2)

Elements and Interpretation of the Offences

8. In the way that the Accused conducted the special hearing, the defence to all of the charges was essentially that the alleged acts never happened. However, there was a qualification, insofar as the allegations of indecent assaults were concerned. Counsel for the Accused hypothesised, as one example, that I might find that the Accused kissed or cuddled the second complainant, CG2. Depending on the facts and circumstances, such conduct may or may not be ‘indecent’.

9. Counsel for the Accused did accept, however, that there was no contest about the essential elements of each of the charges regarding (a) the age range of the complainant; and (b) that the relevant complainant was under the Accused’s authority (generally or at the time of the commission of the offence).

10. It is pertinent to begin by identifying what all of those other essential elements are. I do so with reference to Ms Crown’s schedule (MFI 1) which the Accused’s Counsel did not dispute. There were three particular offences charged.

Charges 1, 4, 6, 8, 10

11. For the multiple charges of aggravated sexual intercourse with a child who was above the age of 10 but under the age of 16, the elements of the offence (under s 66C(2) of the Crimes Act 1900 (NSW) within the date range for the respective charges were:

1. the Accused having sexual intercourse with the complainant;

2. the complainant being over the age of 10 but under the age of 16 years; and

3. the complainant was (whether generally or at the time of the sexual intercourse only) under the authority of the Accused.

12. ‘Sexual intercourse’ includes the penetration, to any extent, of the genitalia of a female person by any part of the body of another person. The female genitalia involves the outer aspects of the female vaginal cavity. So the question is not whether the Accused penetrated, ultimately the vaginal cavity itself, but it is whether he penetrated the complainant’s genitalia to any extent by any part of his body.

13. The complainant will be ‘under the accused’s authority’ if the person was under their care, supervision or authority, whether generally or at the time of the sexual intercourse.

Charges 2, 3, 5, 7, 9, 11

14. For the multiple charges of aggravated indecent assault, the elements of the offence (under s 61M(1) of the Crimes Act1900 (NSW)), within the date ranges for the respective charges, were:

1. the Accused committed an ‘assault’ on the complainant;

2. the assault was accompanied by an act of indecency on or in the complainant’s presence occurring before or at the time of the assault; and

3. the complainant was under the Accused’s authority at the time of the assault.

15. The element of ‘assault’ requires proof of either deliberate physical contact (battery), however minimal, or a threat to the victim involving a reasonable apprehension of immediate and unlawful physical violence.

16. The word ‘indecent’ means contrary to the ordinary standards of respectable people in this community. For an assault to be ‘indecent’, it must have a sexual connotation or overtone. It must occur on or in the presence of the complainant. It will have the connotation of being ‘indecent’ where the touching (or threat) is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation. For example, the genitals or breast(s) of a female.

17. It is not essential that there be two independent acts: being an act of assault and an act of indecency. Any assault amounting to an act of indecency would suffice^[1] .

    1. R v Sorlie (1925) 42 W.N (NSW) 152; R v O’Donoghue (2005) 151 A Crim R 597 at [21]; Fitzgerald v Kennard (1995) 38 NSWLR 184 at 187, 202.

Charges 12-17 (incl)

18. All of these charges of aggravated indecent assault apply to CG2, for whom the Accused was the complainant’s maternal grandfather.

19. For this offence (under s 61M(2) of the Crimes Act1900 (NSW)), the essential elements of this offence within the date ranges for the respective charges, were:

1. the Accused committed an ‘assault’ on the complainant;

2. the assault was accompanied by an act of indecency on or in the complainant’s presence occurring before or at the time of the assault;

3. the assault occurred when the complainant was under the age of 16 years.

20. Elements (a) and (b) of this offence were described before.

Directions of Law (General)

21. Given that this special hearing is to be conducted as nearly as possible as if it was a trial, and that I am determining whether the Accused committed the charges alone, with reference to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW) (‘CP Act’), I will now direct myself as to certain matters of law. Section 133 does not require me to state all the matters which necessarily would have had to be stated to a jury, or even all of the matters which I have taken into account in determining the question of guilt^[2] .

    2. R v Winner (1995) 79 A Crim R 528.

22. I will initially address directions of a general nature. More specific directions (and warnings) relating to different types of evidence will be indicated when I deal with those types of evidence.

Nature and consequences of a special hearing

23. Hanley SC DCJ found that the Accused was unfit to be tried on the present charges in the normal way because he did not have the mental and/or cognitive capacity to understand the basic requirements of a fair and just trial. Consequently, the law requires the Accused be tried under a special procedure.

24. The Accused’s unfitness for a normal trial may or may not be apparent as the trial proceeds. That is because unfitness for trial, may arise for any one or more of several reasons. He may not understand the nature of the charges against him, or be able to decide whether he has a defence to them. He may not be able to make a rational decision about whether he is guilty or not guilty, or how to plead to the charge. He may not be able to understand, generally, the nature of the criminal proceedings and what their course and outcome may mean to him. The unfitness may be an unfitness to give his lawyers instructions about what his defence is or how the prosecution evidence is wrong, or should be questioned, or it may be an inability to apply himself to the proceedings in an informed or constructive way. Whether or not any one of these matters is apparent to me, I must accept that the Accused is unfit to be tried in a normal way because the law insists an accused have the mental capacity to do all of these things.

25. The conduct of a special hearing could be different in one or more of the ways to which I have referred, that is, in the way in which the Accused is able or unable to participate or contribute to his defence. In every criminal trial an accused may or may not choose to give evidence. That remains so in a special hearing such as this, but an unfit person may not be capable of making a reasoned decision about that, or indeed other matters concerning the hearing. At a special hearing the Accused is taken to have pleaded not guilty to the charges against him, unlike in a normal trial when they may enter a plea of either guilty or not guilty. The law is intended to ensure a special hearing does not prejudice the Accused any more than his unfitness already may do. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. He must, however, have legal representation and may not, as some mentally and/or cognitively fit accused persons do, choose to represent himself.

26. The purpose of a special hearing is to see that justice is done, as best it can be in the circumstances, to the Accused and the prosecution. The Accused is put on trial so that the case against him can be determined. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives the Accused an opportunity of being found not guilty, in which case the charges cease to hang over his head, and if he requires further treatment, it may be given to him outside the criminal justice system.

27. I will have to reach my verdicts based on the limited evidence available. There are various ways evidence at a hearing of this nature may be limited. For example, the Accused may be unable to give or call evidence, or unable to give adequate instructions to his lawyers about which witnesses might be called to assist his case, or, as to matters on which cross-examination could be based.

28. The verdicts I may give in this case are “not guilty”, “special verdict of act proven but not criminally responsible” or “the Accused committed the offence/s based on the limited evidence available”.

29. If I find the Accused not guilty (on all charges) then that is the end of the matter, and he will be free to go. If, however, I find that on the limited evidence available he did commit some or all of the charged offences, it is my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been sentenced to a term of imprisonment, and if so, the appropriate term. If I take the view a term of imprisonment would not have been appropriate, I may impose another penalty just as I might in the case of a person fit to be tried, such as a fine, a community correction order or a community release order.

30. If I nominate a term of imprisonment the Accused is referred to the Mental Health Review Tribunal, to decide whether he is still suffering from a mental health and/or cognitive impairment and whether he should be detained in a mental health facility for treatment. If the Accused should become fit to be tried before the period equivalent to any term of imprisonment I might nominate expires, the Accused may be tried in the normal way for the offence, but this would be a matter for the prosecuting authorities to decide.

31. Finally, if I return a special verdict of act proven but not criminally responsible, it will be my duty to decide whether the Accused will be held in custody or released, either with or without conditions. I will only release him if I am satisfied it will not seriously endanger his safety or the safety of any member of the public. If the Accused is not released unconditionally, he will be referred to the Mental Health Review Tribunal which may make an order about his detention, care, treatment or release. Again, the Tribunal will not release the Accused unless satisfied his safety and the safety of the public will not be seriously endangered.

23. I should emphasise that although I am referring to the legal and practical consequences of any verdict I may reach, my duty is presently confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the Accused committed the offences charged. The consequences of the verdict and what happens to the Accused afterwards are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court at a later date.

Overall duty and responsibility

33. As the Accused is deemed to have pleaded that he is not guilty to all counts (CP Act, s 56(5)) it is my duty and responsibility to consider whether he committed the offences for which he is charged and the appropriate verdicts.

Obligation to apply the law

34. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Separate consideration of charges

35. There were two complainants and seventeen charges. There were, in effect, multiple hearings which, for the sake of convenience, have been consolidated into one. Although there are multiple counts on the indictment, with a qualification, it is necessary that I give consideration to the counts individually, bearing in mind that the mere fact, for example, that I find that the Accused is guilty of one of the counts does not mean that he is guilty of all of the counts. The converse applies if I find him not guilty, or find the act was proven but the Accused was not criminally responsible. It is necessary that I consider the evidence with respect to each individual count and reach a conclusion with respect to each count.

36. The evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count. Certain matters arise from this general principle, in the circumstances that many of the charges involve only two complainants.

Markuleski direction^[3]

3. R v Markuleski (2001) 52 NSWLR 82.

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

38. However, if I was to find the Accused not guilty on any count, particularly if that was because I had doubts about the credibility or reliability of a particular complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts affecting the same complainant.

Alternative charges

39. The qualification which I referred to when discussing the separate consideration of charges concerns counts 2, 5, 7, 9 and 11 (alternative counts). These counts are alternatives to counts 1, 4, 6, 8 and 10 (the primary counts).

40. If I find the Accused guilty of those primary charges, it will be unnecessary for me to consider the question of his guilt for the alternative charges.

41. If I am not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal charges being 1, 4, 6, 8 and 10, then I must find the Accused not guilty of any or all of those charges. I may then consider whether the Crown has proved beyond reasonable doubt all the essential elements of the alternative charges, being 2, 5, 7, 9 and 11 which are open to me. As I have indicated, the essential elements of the principal charges and the alternative charges are not identical. If I find that the Crown has proved beyond reasonable doubt each of the elements of the alternative charges, then I may find the Accused guilty of the alternative charges.

Impartiality

42. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to either of the complainants sway my judgment.

43. Having regard to the inherently shocking nature of the offences for which the Accused is charged, I must also strive to avoid any prejudice against the Accused.

Evaluating the evidence

44. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, and the various exhibits that were tendered in the Crown case and on behalf of the Accused.

45. I am obliged to consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.

46. As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. A substantial part of my ‘experience’ is my career experience, first as a lawyer and secondly, as a Judge; with all the learning and observation of human affairs that comes with this. I must not act capriciously or irrationally.

Transcripts of video or audio-video recordings

47. During the course of the hearing, written transcripts of recordings were supplied to me.

48. I do not give the evidence of the transcript of the recordings more weight than they deserve because it was reproduced in written form and because I am, in effect, receiving that evidence a second time. It is important for me to recall the evidence as it was given during the trial and what, if anything, I thought about the reliability of the evidence as I saw and heard it.

Drawing inferences

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

Burden of proof

50. I now direct myself on the onus of proof. Section 54 of the CP Act provides that the Accused is to be acquitted unless the Crown can prove, to the required criminal standard of proof, on the limited evidence available, that the Accused committed the offence charged, or another offence available as an alternative to the offence charged.

51. The burden of proof of guilt of the Accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges, as those elements were identified earlier in these reasons. However, the Crown does not bear the onus of proving every disputed fact in issue. It is the essential elements for each offence that the Crown must prove to the criminal standard.

52. There is no onus of proof on the Accused at all. It is not for the Accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Accused does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

53. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential elements of the charges beyond reasonable doubt, then the Accused must be found "not guilty" of the charges.

Standard of proof

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

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

56. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the Accused is guilty of the offences charged. The Accused bears no onus of proof in respect of any fact that is in dispute. I say, again, that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.

Counsel’s submissions

57. I summarise these later in these reasons. I will consider the submissions that have been made and give them such weight as I think they deserve. In no sense do I treat those submissions as evidence in the case.

The case concerning complainant CG1

58. I will commence with the first complainant, CG1’s evidence. This relates to charges 1 – 11 (incl). Comprised within this account are 4 alleged incidents.

The complainant (CG1’s) evidence

59. CG1 was born in 1985. Her mother and the Accused married after being in a de-facto relationship.

60. They separated in 1997. CG1 was in Year 7 at school that year.

61. Following the parents’ separation, her mother moved to Glenmore Park. The complainant said that she continued to live with the Accused, along with her two younger siblings, at Gilda Avenue in South Penrith.

62. The complainant drew a sketch of the layout of her home (Exhibit A). She and her siblings had their own room, and the Accused had his room.

The First Incident

63. CG1 said in her evidence that the Accused came into her bedroom. She was lying on her bed, wearing her nightie and underpants. She said that the Accused used his hands to move her legs in such a way that they were left hanging off the side of the bed. He told her to ‘shush’. She said he told her to take off her underwear. He then told her to go into his bedroom and lay on his bed. She complied with this; explaining that she thought she would get into trouble if she did not.

64. They went into the bedroom together. No one else was present. She recalled that he was wearing shorts. She remembered certain bed lamps and recalled one was off and the other emitted a dim light. She said that the Accused told her to take her nightie off. After she had done so, he took his shorts off. They were both left naked.

65. She said she lay on the bed and he lay on top of her. She said he put his penis in the inside folds of her vagina and was making thrusting movements. She said she heard him grunting. She could not recall how long this occurred for; but recalled that after it stopped, they both got up and put their clothes on. She went back to her bedroom and went to bed; crying herself to sleep. She did not tell anyone what had occurred because she was scared of getting into trouble. This was the conduct the Crown particularised ^[4] as Counts 4 (and 5).

    4. When I refer to particulars of the charges, I do so by cross-referencing MFI 1.

66. She recalled being 12 years of age at this time. This recollection was tied to the incident occurring shortly after her parents’ separation, which she recalled occurring in 1997.

67. With the aid of an extract of her police statement to revive her memory (MFI 6), referring to this incident, CG1 said that the Accused had touched the whole of her vaginal area with his hand; rubbing it, the lips to her vagina and her clitoris. This was the conduct the Crown particularised as Counts 1 (and 2).

68. With her memory revived, CG1 also recalled that the Accused made her touch his penis in her bedroom, whilst she was sitting on her bed. She recalled that she was wearing her nightie. She recalled that he was wearing his shorts. But at the time she touched his penis, it was skin-to-skin contact. She described his penis as being very soft until it “tightened”. This was the conduct the Crown particularised as Count 3.

The Second Incident

69. In the lead up to this incident, CG1 recalled that one afternoon, she had been looking after her younger siblings (both of whom were in primary school at the time). The Accused was working. CG1 explained that there were certain house ‘rules’ decided by the Accused which, in his absence, she enforced.

70. She recalled that her siblings were in their pyjamas and had their dinner. Ordinarily, they should have gone to bed. But CG1 recalled trying to keep them both up; since she did not want to be left alone when the Accused returned home after work. However, on this occasion, her siblings had fallen asleep despite her endeavour.

71. She recalled that after he arrived home, the Accused told her to go to his bed. Her initial response was to say “No, I want to go to my own bed” but he demanded that she go to his bed. She recalled that he said this with an angry tone of voice whilst pulling a face at her. She compared his facial expression to that of a growling dog; which scared her. She went to his bed.

72. When she went into his bedroom, she noted that the situation with the bed lamps was the same as the ‘first incident’. She recalled lying on the bed. The Accused told her to take her nightie off. This time he took her nightie off; as well as taking off his shorts.

73. She recalled him lying on the top of her. She could not recall what she was thinking. She said she just felt numb. She explained that the Accused put his penis inside her vagina folds, before rubbing his penis against her clitoris, going back and forth. She did not recall how long this occurred for but did recall getting up, putting on her clothes and going to bed. This was the conduct the Crown particularised as Counts 6 (and 7).

74. She said she did not tell anyone since, as a student in high school at the time, it was embarrassing to her.

The Third Incident

75. CG1 recalled a separate occasion when she had been laying on a lounge in the lounge room (in the hearing she inserted the place of the lounge in the lounge room on Exhibit A). Her younger siblings were in their bedrooms. She said that the Accused came into the lounge room and told her to go to his bedroom now. She complied.

76. She recalled that the Accused took her clothes, her nightie and underwear, off. She remembered that he had just had a shower and was wet. She was lying on the bed. She remembered that the Accused lay on top of her, placing his penis against the inside folds of her vagina and making thrusting movements. She said she lay there numb. She did not say anything since she was too scared to. This was the conduct the Crown particularised as Counts 8 (and 9).

77. This occurred before she turned 13 (which was 27 May 1998 – an age chart for CG1 was Exhibit B). She specified that it occurred before Christmas 1997. She recalled seeing a Christmas tree in the living room, although not at the time of the incident.

78. She did not tell anyone because she was scared and embarrassed.

The Fourth Incident

79. CG1 described the ‘last occasion’ as being comparable to the earlier incidents. The Accused was on top of her; ‘pretending to have sex’. After it occurred, she went to bed, and cried.

80. As with the first incident, CG1 was permitted to revive her memory of the ‘last incident’ with reference to a limited part of her police witness statement (MFI 6).

81. Aided by the extract, she said she recalled that she was in the Accused’s bedroom; on his bed; wearing her nightie. She recalled that the Accused was wet over different parts of his body.

82. She said she recalled the Accused lying on top of her and putting his penis into the inside folds of her vagina, but without penetrating her. She did not recall how long this occurred. After this was over, she recalled dreaming of her mother, but she did not tell her mother about the incident; at least straight away. This was the conduct the Crown particularised as Counts 10 (and 11).

The Accused’s challenges to CG1’s evidence

Inconsistencies

83. Through the course of her cross-examination, certain inconsistencies in the CG1’s evidence were suggested.

84. Whereas in her evidence in chief she stated that the Accused had not touched her inappropriately in her bedroom, in her statement to police she stated that touching had occurred in his bedroom.

85. In her initial account of her evidence in chief, referring to the ‘first incident’, she stated that the Accused had not made her touch his penis; but, later in her evidence, she stated that he did this.

86. She said that all the incidents of abuse concluded before her 13^th birthday (27 May 1998), but when she disclosed to her mother abuse in February 1999, it was apparent that she identified the last episode occurring only a week before; when she was well past the age of 13.

s 293A(2) direction

87. I direct myself that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences.

88. It is for me, as the trier of fact, to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability.

Other conduct

89. In the context of CG1’s evidence of CG2’s complaint to her, it was put to CG1 that if what she recalled about living arrangements with her father was true, then throughout 2015 to 2017 she was willing to have the Accused in especially close proximity to herself and even her daughter. CG1 responded that it was her then partner, SL’s suggestion that the Accused live in the caravan, and she said that she thought that she had been the only person who endured abuse.

90. The implication, or insinuation of this submission, so it appeared to me, was that if CG1 told the truth of the child sexual abuse perpetrated upon her by the Accused, she would not have exposed her own daughter (CG2) to the risk of the Accused perpetrating child abuse upon CG2.

Direction^[5]

5. Ms Crown explained, when submitting that the direction should be made in these terms, that it is sourced in common law authorities including Rao v R [2019] NSWCCA 290 at [98] and Maughan v R [2020] NSWCCA 51 at [2], [13] and [99]. Counsel for the Accused did not object to a direction being made in these terms.

91. There is no typical or normal behavioural response to non-consensual ^[6] sexual activity. People may respond to non-consensual sexual activity in different ways, including by maintaining contact with the alleged perpetrator of non-consensual sexual activity after the alleged non-consensual sexual activity.

    6. Both Counsel indicated that in a context of historical allegations of child sexual abuse, the reference to the absence of consent is superfluous. It is included here since it is derived from the aforementioned authorities which did not concern underage sexual intercourse.

92. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault.

93. I must avoid making assessments based on preconceived ideas about how people are supposed or expected to respond to non-consensual sexual activity, including any misconception that a complainant would not continue to remain in contact with an accused after an allegation of non-consensual sexual activity.

Complaint evidence

CG1’s evidence

94. CG1 said she made a disclosure, of sorts, to her mother (GK) of what had occurred when the latter was still living in Glenmore Park but could not be more specific as to the time. She said she did not go into detail with her mother. She said she told her mother that she did not want to go back there and live with the Accused. She indicated that this occurred in 1999, by reference to the changes of school and the school year (Year 9). She remembered two police officers coming to Glenmore Park.

94. CG1 accepted that she had spent time with her mother in the period between the alleged offending (1997) and her disclosure to her mother (1999). CG1 said she did not recall whether, in the course of her disclosure with her mother in 1999, there was discussion about whether to press charges against the Accused. It was put to her, although CG1 disagreed, that the reason charges were not pressed was because to do so would likely catch her out in terms of telling lies about the Accused.

95. Later in these reasons, when considering the Crown case concerning alleged conduct against CG2, I refer to CG1’s conversation, amongst other people, with JG which primarily revolved around CG1’s reporting CG2’s complaint about what the Accused had done to her. Pertinently, CG1 gave evidence about that conversation with JG:

“Q. Did (JG) say anything to you after you told her you weren’t okay?

A. Well, she asked me how I was because of the like things that were mentioned years ago with me, so you know, she was – she asked me like, “How are you dealing with it all?”

Q. What did you say?

A. At first, I was kind of shocked myself because you know, hadn’t thought about it for so long, yeah, everything, everything, just – you know, years upon years of like pushing that shit down and just forgetting about it and just like, bang, come to the surface and it was, yeah, a lot.” (emphasis supplied)

GK’s evidence

97. CG1’s mother, GK, was called. GK had married the Accused in 1994. The family (including CG1) lived at Gilda Avenue in South Penrith. Their marital relationship broke down in 1997; after which GK moved out of Gilda Avenue and moved to a place in Glenmore Park.

98. GK explained that there was no need for any formal custody orders upon the breakdown of the marriage. She and the Accused had separated amicably.

99. Initially, in her evidence in chief, GK said:

1. she did not recall the content, or tone or even the location of any conversation she had with CG1 about alleged abuse perpetrated by the Accused upon CG1 when CG1 was younger; and

2. did not recall talking to police about what CG1 had told her (or taking any other step) after the conversation.

100. After this evidence, the Crown successfully (and without opposition) applied for leave to revive GK’s memory with reference to documents that became Exhibits F-H (incl). These documents indicate that on 19 February 1999, GK made a report to police, disclosing to the officers that:

• On the previous day (18 February 1999), she had received a report that CG1 had left a note indicating her intention to run away for the weekend.

• GK had collected CG1 from school that afternoon.

• In the course of speaking to her CG1 (about her running away), CG1 disclosed to her that the Accused had touched her indecently on a number of occasions; the most recent of which was one week ago;

• When GK asked CG1 for more details, CG1 told her that the Accused had touched her ‘sexually’; although “hadn’t been inside her”; and

• CG1 became upset and cried when disclosing this information to GK.

101. Under cross-examination by Counsel for the Accused, and after she had her memory revived, GK confirmed that she had no independent recollection of the conversation with CG1 about what the Accused had allegedly done to her.

Det Sgt Costello’s evidence

102. Detective Sgt Peter Costello received information from GK about CG1’s complaints. In 1999, he was serving with the St Mary’s Local Area Command. He had received a message (from Constable Fokes). Constable Fokes was attached to the Regentville Police station, a smaller police station, within St Mary’s Local Area Command. Det Sgt Costello thereafter attended GK’s residence at Glenmore Park on 19 February 1999. Det Sgt Costello later said that he was not aware of the source of information that Constable Fokes received.

103. Reviving his memory from the documents, Det Sgt Costello recalled speaking first to GK, separately. Then he spoke to GK in CG1’s presence. He took a note of what he was told in his Duty Book (the extract being Exhibit J, recording events he experienced between 3pm and 12am that day and into the early morning). He recorded an allegation that CG1 had been sexually assaulted by her father. The note also recorded that upon receiving that report, the officer returned to St Mary’s Police Station, contacted DOCS, and spoke to a Milo Zhofova. This was for the purpose of setting up a referral.

104. Det Sgt Costello explained that he relied upon the information in his notebook to prepare the substantial content in the COPS entry (Exhibit F), which he created at 12:18am on 20 February 1999. He said in cross-examination that the second paragraph in the narrative statement on Exhibit F was sourced from GK.

105. He further explained that under the sub-heading ‘Issues as described by the Notifier’ in Exhibit G, the content was sourced from a record that Ms Zhofova, of DOCS, made of what Det Sgt Costello had told her over the phone. Det Sgt Costello had notified DOCS of CG1’s complaint. He was referred in cross-examination to the second page of this document.

106. Pertinent entries included Det Sgt Costello’s record of GK informing him that CG1 had disclosed to her mother that the Accused had been ‘touching’ her ‘sexually’, although ‘he hadn’t been inside her’; that CG1 had been residing with the Accused for the last 12 months and the last incident of abuse had occurred ‘last week’. The police view at the time, apparently, was that the matter would be investigated by JIT Penrith and that there had not been ‘direct evidence of penetration’ at that point.

107. Det Sgt Costello indicated that the general purpose of his creation of these documents was to relay all relevant and important information for others to action.

Direction as to context/relationship evidence

108. Before I can convict the Accused in respect of any charge in the indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which each charge relates as alleged by the complainant.

109. In addition to the evidence led by the Crown specifically on the count/s in the indictment, the Crown relied upon evidence of other acts of alleged misconduct by the Accused towards the complainant. I shall, for the sake of convenience, refer to this evidence as evidence of ‘other acts’.

110. The evidence of ‘other acts’ is as I described it, from GK, Det Sgt Costello and certain documents (Exhibits F, G, H and J). In summary, I have referred to the evidence of GK (conveyed to Det Sgt Costello and recorded in those documents) about what occurred on 18 February 1999, regarding a complaint by CG1 about the Accused ‘touching her’ most recently within a week before.

111. Secondly, there was also evidence from CG1’s siblings, RG and SG regarding the Accused’s administration of discipline: RG and SG each described it as featuring certain acts of smacking. Their half-sister, JG, referred to the Accused yelling at her. I will return to this evidence later as it relates to certain arguments that the Accused, in particular, has marshalled in his defence.

112. It is important that I first identify the relevance of this evidence about alleged indecent conduct a week or so before and the Accused’s practices of disciplining CG1. This evidence was relied upon solely for the purpose of placing the complainant’s evidence towards proof of the charges into what the Crown says is a realistic and intelligible context. By context, I mean the history of the conduct by the Accused toward CG1 as she alleges it took place.

113. Without the evidence of these other acts, the Crown says, it may be wondered, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in any way. If I had not heard about the evidence of other acts, I might have thought complainant CG1’s evidence was less credible because it was less understandable. So, the evidence is placed before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges in the indictment.

114. If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant CG1 alleges was an ongoing history of the Accused’s abusive conduct toward her, then what might appear to be a curious feature of the complainant’s evidence – that she did not complain about what was done to her on a particular occasion – would disappear. It is for that reason the law permits a complainant to give an account of the alleged abusive history between herself or himself and an accused person in addition to the evidence given in support of the specific charges in the indictment. It is to avoid any artificiality or unreality in the presentation of the evidence from CG1. CG1’s account of other acts by the Accused allows her to explain her account more naturally and intelligibly of what allegedly took place.

115. The Crown can therefore lead evidence of other acts of an abusive nature or character between the Accused and CG1 to place the particular charges into the context of CG1’s account of the whole of the Accused’s alleged conduct.

116. However, I must give myself some important warnings with regard to the use of this evidence of ‘other acts’.

117. Firstly, I must not use this evidence as establishing a tendency on the part of the Accused to commit offences of the type charged. I cannot act on the basis that the Accused is likely to have committed the offence/s charged because the complainant made other allegations against him. Similarly, I must not use this evidence to establish that the Accused is of bad character; ie. in derogation of the character direction referred to in the Accused’s case later in these reasons.

118. These are not the reason(s) the Crown relied upon this evidence. The evidence has a very limited purpose as I have explained, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.

119. Secondly, I must not substitute the evidence of the other acts for the evidence of the specific charges in the indictment. The Crown is not charging a course of misconduct by the Accused but has charged particular allegations arising in what the complainant says, was a course of sexual misconduct. I am concerned with the particular and precise occasion alleged in each charge.

120. I must not reason that, just because the Accused may have done something wrong to the complainant on some or other occasion, he must have done so on the occasion(s) alleged in the indictment. I cannot punish the Accused for other acts attributed to him by finding him guilty of the charges on the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.

121. Returning now to GK’s evidence, on 2 July 1999, GK informed police, purportedly on CG1’s behalf, that CG1 did not wish to proceed with the allegation of sexual assault against the Accused (Exhibit H).

JG’s evidence

122. Later in these reasons, when setting out the Crown’s case featuring CG2’s allegations, I refer to two conversations between CG1 and JG in 2019.

123. The second of those conversations is most relevant here. The context for this was CG1 informing JG of CG2’s allegations of inappropriate touching against the Accused. In this conversation, two weeks after the first of the conversations, JG recalled ringing CG1 to determine whether CG2 was “okay”. In the course of this conversation, she recalled CG1 telling her that CG1 “believed what (CG2) had said because it had happened to her (CG1) when she was younger”.

124. JG initially said that when CG1 reported that CG1 had herself been a victim, she did not nominate the perpetrator

125. JG also said that, prior to 2019, she had no memory of anyone bringing sexual allegations about the Accused. However, leave was granted to the Crown to cross-examine JG about what she had said in her police statement.

Direction

126. I granted leave to the Crown to cross-examine JG acknowledging that in the usual case the party who calls a witness is not permitted to cross-examine the witness: that is, the party cannot seek to test the honesty or accuracy of the witness about the evidence given by her. In the usual case it is the opposing party who has the right to test a witness by cross-examination.

127. However, in relation to JG, I permitted the Crown to ask her questions about the conversations she had with CG1 in 2019. This was because it appeared to me that she had given unfavourable evidence, by which (a) she said she had no memory of whom CG1 said had perpetrated abuse upon her; and (b) she had denied CG1 disclosing to JG that she had been sexually abused by the Accused when they were much younger.

128. I direct myself that as with all witnesses, it is a matter for me to decide what, if any, of JG’s evidence I accept as honest and reliable.

129. I can conclude that, in spite of her initial evidence that was unfavourable to the Crown case, the evidence given by JG in Court after Ms Crown’s cross-examination of her should be accepted, either wholly or in part, and be used in reaching my verdicts.

130. On the other hand, I may, having regard to all the circumstances in which JG’s evidence was given during her cross-examination by the Crown, and with reference to her witness statement (MFI 12) was made, choose to accept it either wholly or in part instead of the evidence given by her in Court when giving evidence in chief. I can also choose to accept some part of what JG said in Court and what she said in the statement as long as I make my decision logically, rationally and by applying my common sense. I can also reject everything JG has said about this matter. It is up to me to decide what, if any, of JG’s evidence I accept as honest and reliable

131. After she was referred to part of her witness statement, JG acknowledged that CG1 had nominated the Accused as having perpetrated abuse upon her: JG recalled that, in 2019, CG1 told her that she (CG1) had believed what CG2 was saying about the Accused because the Accused “did it to (her) when (she) was little”. But JG maintained her denial that CG1 had much earlier (than 2019) disclosed to her that she, CG1, had previously been abused by the Accused.

132. However, when cross-examined by the Accused’s Counsel, and when implicitly referred to her initial evidence (not recalling CG1’s nomination of the Accused as perpetrating abuse against her), JG agreed that a revelation of that kind was not something that she would likely forget. Later under cross-examination, JG said she was shocked to learn about CG1’s reference to her being abused by the Accused and indicated her belief that she had a clear memory of disclosure.

Cross-examination by Ms Crown of GK on living arrangements

133. In the course of her evidence in chief, GK had said that after she had moved out in 1997, CG1, and her other children lived with her (at Glenmore Park) and had done so in 1997.

134. She also said that she remembered a time when CG1, and her siblings, moved with the Accused to Minchinbury and thereafter Londonderry. This was relevant evidence, not only because of the question whether the Accused had the opportunity to commit the alleged acts, but also to the general accuracy of CG1’s recollections, the motive(s) to lie that the Accused ascribed to CG1 and consequentially, the weight that could be given to the complaint evidence that the Crown relied upon.

135. Following this evidence, I granted leave to Ms Crown to cross-examine GK on these documents.

Direction

136. I granted leave to the Crown to cross-examine GK acknowledging that in the usual case the party who calls a witness is not permitted to cross-examine the witness: that is, the party cannot seek to test the honesty or accuracy of the witness about the evidence given by her. In the usual case it is the opposing party who has the right to test a witness by cross-examination.

137. However, in relation to GK, I permitted the Crown to ask her questions about CG1’s living arrangements concerning the evidence given by her in light of the reports she had made to police on 19 February 1999. This was because it appeared to me that there was some inconsistency between the evidence given initially by GK when called by the Crown, or unfavourable evidence to the Crown, from what GK had said in her statement to police.

138. I repeat the balance of the direction regarding the rationale and uses to which evidence the Crown adduces upon cross-examination of a Crown witness referred to earlier (at paragraphs [126]-[130], albeit adapted to this part of GK’s evidence.

139. The scope of the leave was to deal with CG1’s living arrangements. These documents disclosed that:

• By February 1999, CG1 had been living with her siblings and the Accused for just over 12 months. GK told police that the Accused had custody over CG1 and her siblings;

• In the period indicated, GK had access to CG1 approximately every second weekend;

• There was no formal custody arrangement, but the Accused and GK had agreed to the private arrangement.

• It was proposed that CG1 and her siblings reside with GK from this point on.

• GK was happy for CG1 to stay with her and CG1 was happy to stay with GK.

• On 2 July 1999, GK represented to police that CG1 was living in a ‘safe environment’ and was “no longer in contact with” the Accused.

Cross-examination on behalf of the Accused

140. Upon cross-examination by the Accused’s Counsel, GK accepted that she had told police in her police statement (MFI 12, paragraph 9) of 28 January 2020 that, when moving out in 1997, she “took all the kids with me” to Glenmore Park. She had also told police that the children had ‘switched’ between living with her and the Accused at Gilda Avenue in South Penrith. Specifically, she told police that she could not recall where, in 1997, they were living. Nevertheless, later in her cross-examination (for the Accused) she said her best guess was that the children were with her most of the time; although she later said that in 1997, she could not recall how long they were with her.

141. In her police statement (paragraph 12), GK told police that all the children had moved, with the Accused, from Gilda Avenue (South Penrith) to Minchinbury and, separately, Londonderry. When asked about that statement, she said she was unsure whether CG1 was included.

142. Counsel for the Accused referred GK to police documents (Exhibits F and G) and her implied representation to police that the children had lived with their father since at least the beginning of 1998 (being 12 months before her report to police in February 1999). GK was asked whether they had lived with their father much before that. GK said it was possible.

143. GK said she thought that by at least in 1996 (when CG1 was in Year 6), she was in the same school primary school that she had been in 1995. As was pointed out in re-examination, in 1996, GK was herself still living with the Accused.

144. Further, GK said she did not recall a scenario whereby CG1 had come to her and expressed a desire to live with her. GK was adamant that in the period up to February 1999, her children, including CG1, always had a choice to stay with her, instead of the Accused: she had no objection to them doing so and she had the space.

145. After February 1999, GK said she assumed that CG1 had returned to live with the Accused.

CG2’s evidence

146. CG2 gave evidence about a conversation she had with CG1 in connection with her disclosure to her mother about what the Accused had allegedly done to her. When she gave supplementary evidence at the hearing, CG2 recalled telling her mother that the Accused “touched me on my tootie” (ie vagina) and that she, CG2, had been “too scared” to tell her mother.

147. It was in this context that, virtually in passing, CG2 gave evidence of complaint made by CG1.

148. CG2 told police in her record of interview that CG1 had said to her that she believed her daughter ‘because it had happened to her too’.

“If someone has wronged you, you will cease having anything to do with them and if you continue to engage with them in the same way as you did prior to the wrongdoing, it is an indication that the wrongdoing did not happen. While the assumption may have some operation in other contexts (arms-length business dealings being a typical one), it would appear to be completely inapposite in a case such as the present.”

403. Another point raised on the Accused’s behalf is the written reference in the police documents to the reported absence of ‘penetration’ in the sexual activity complained about; or the alternative expression that the Accused “hadn’t been inside her”. By this, CG1 was referring to her vaginal cavity. The point was that this could be regarded as a legally accurate conclusion. I do not draw any inference adverse to CG1 about this. Indeed, if anything, it supports CG1’s credit. The physical description was in fact consistent with her accounts of the incidents when she gave evidence; which, themselves, accord with the pertinent legal definition of sexual intercourse, being penetration of “any part of” a female’s genitalia. The circumstance that CG1 (then a 13 year old girl) opined that there had been no ‘penetration’ carries no weight as proof of the legal conclusion that she had engaged in sexual intercourse with the Accused. Nor does Det Sgt Costello’s recorded impression in the ‘Action Taken’ section in Exhibit G take the matter any further. He was going by and relying upon the rather generalised report (mainly by GK) of what CG1 had told GK.

404. On balance, I am inclined to think that the complaint to GK does provide additional evidence in support of the Crown case that the offending occurred and also enhances CG1’s credibility.

405. I now address the Crown’s reliance upon tendency evidence. I do this in circumstances where I have found that the Accused was sexually attracted to CG2 (when CG2 was about 8 or 9 years of age) and acted upon that sexual attraction against her. A common feature of the offending giving rise to the three incidents affecting CG2 was the Accused’s own active role in removing CG2’s clothes. Another feature was the conduct occurring in a familial setting and its being committed in the privacy of the functional equivalent to the Accused’s bedroom (the caravan) when the Accused was alone with CG2. Finally, at least one of the incidents (the third) featured sexual touching of (although not inside) the vagina (with no penetration of the vaginal cavity).

406. CG1 was 11 or 12 years of age in 1997; the year she recalled the alleged incidents. A feature of CG1’s descriptions of the alleged incidents affecting her were the Accused’s coercive demands or even his own physical involvement in CG1’s removal of her clothes. Further features involved the conduct allegedly occurring in a familial setting and in the Accused’s bedroom (when the Accused was allegedly alone with the child). Finally, most of the alleged incidents featured touching of the vagina with no penetration of the vaginal cavity.

407. In my opinion, the rather striking resemblance between these features of the offending against CG2 and the alleged offending against CG1 are such that the conduct against the former is probative of the alleged offending against the latter ^[11] .

     11. Bauer at [58]

408. I accept the Crown’s submission as to the asserted tendencies of the Accused, in terms of a sexual attraction to young girls (in an approximate age range of between 7 and 13 years) and tendency to act on that attraction.

409. I recognise that the finding I have just made does not compel the conclusion that the Accused must have acted upon his sexual attraction to the complainants on the particular occasions with which he is charged. I am cautious, also, in not giving disproportionate weight to it. I eschew coincidence reasoning.

410. I now return to the evidence of the second of the pretext calls. I have referred to the statements by the Accused, but they of course need to be understood by reference to the context, including the statements made by CG1.

411. What is apparent from them is that in that second pre-text call, on several occasions (apparent in pp 4, 6, 9 and 10 of Exhibit C), CG1 was tying the report that she had received from her daughter, CG2, of the Accused inappropriately touching the latter, with an accusation regarding the Accused’s prior perpetration of sexual impropriety committed against her. At page 4, CG1 referred to the Accused having “take(n) away things from me when I was growing up”. At page 6, she said that she knew exactly how CG2 felt “because I went through something similar”. At page 9, CG1 said to the Accused “..you did it to me. So why shouldn’t I believe her?” At page 10, she said “ .. if you didn’t do what you did to me, maybe I wouldn’t believe her..”

412. I am conscious of the possibility that the Accused might have been confused of this linkage. The critical question is what the Accused understood. A striking feature of the Accused’s responses was his acknowledgment of past wrongdoing. I accept the Crown’s submission that this could only have been a reference to wrongdoing of a sexual nature that he inflicted upon CG1. I do not accept as a reasonable possibility that when admitting past wrongdoing (against CG1) the Accused was confining himself to a past statement of regret for only ever having inflicted harsh physical discipline against CG1 when she was much younger. It appears that he inflicted physical discipline on all of his children; not just CG1. To reiterate, the context for the conversation was discussion on the subject matter, or accusations, of sexual abuse. I am reinforced in that view by the Accused’s own reference, in conjunction with his admission that he had “done wrong in the past” with his going overseas to get help for his apprehended mental illness. There is nothing in the call that obviously ties the admitted mental illness as an explanation for his merely imposing harsh discipline upon CG1; although to be fair, the Accused alludes to (at p 14), or perhaps more accurately hints at, a difficult childhood.

413. Further, as the Crown submitted, another part of the context for assessing the argument about the Accused’s admissions was the separate evidence of the Accused attributing his past conduct to loneliness from his then wife’s separation from him. It is not obvious that meting out physical discipline to a young daughter is an antidote to loneliness.

414. Also relevant in this context is that, as at 20 November 2019, the Accused had no awareness of CG1 having ever brought a complaint against him for inappropriate sexual touching back in February 1999. From the events of 1997 that CG1 narrated, there had been not inconsiderable contact between her and the Accused; including right through to 2015 and 2016 when the Accused lived in a caravan out the back of a house in which CG1 lived. Ordinarily, it might be supposed, that a person in the Accused’s position would have no reason to suppose that, from 20 November 2019, it was likely that CG1 would complain about what the Accused had done to her. He might have had reason to anticipate that too much water had flowed under the bridge for him that made it unlikely that he might be investigated or prosecuted for any sexual misconduct he perpetrated against CG1 before the turn of the century. However, according to what he said (at p 11) that “what happened between you and me has always scared me, always worried me, always been at the back of my mind” suggested that he might well have had some appreciation that what he had done to CG1 in the past might come back to haunt him. Whatever be the reason for the statement however, in my view it decisively points to his appreciation that CG1 was referring him to his wrongdoing of a sexual kind.

415. I am not unmindful of the Accused’s disadvantages at work when making the statements; although in the case of pretext calls, it will almost invariably be the case that the person to whom accusations are made will be, as it were, caught off-guard and accusations are apt to naturally generate defensive reactions, viewed, as they commonly tend to be, by persons, be they innocent or otherwise, as rather shocking events. I accept, further, Mr Tuckey’s submissions that accusations of the type made in pretext calls did mix the vices of compound or leading questions that would not be expected to be allowed in a courtroom.

416. Nevertheless, the other side of the coin is that pretext calls may be probative precisely because of what they indicate is a person’s spontaneous or authentic response; and not a contrived or calculating response.

417. I reject the Accused’s submission that CG1 had deliberately omitted details in putting accusations. CG1 did not, with respect, strike me as a calculating type of person. It struck me from the sequence of topics discussed in the second pretext call that what she was primarily concerned about what the Accused had allegedly done to CG2; rather than herself. She had received no relevant guidance or instruction from the police officers as to what to say (Exhibit M) about the level of information or detail sought to be elicited from the Accused.

418. I now remind myself of the direction I referred to earlier. I have no difficulty accepting that the Accused heard the accusatory statements and that he said what the recording (and transcript) of the conversation indicated that he said.

419. I further observe that the accusations – and the answers to them – to the extent that they concern CG1, are at such a level of generality that they cannot be used as direct admissions directed to any particular count involving CG1.

420. I therefore place weight not only upon the circumstance that the Accused admitted past wrongdoing against CG1 which, in context, was of the nature of generalised sexual misconduct against her; but, in what amounts to something effectively similar, his omission, when presented with multiple opportunities to do so, to firmly deny that that he had ever engaged in (sexually) inappropriate conduct towards CG1.

421. I place weight upon this evidence as evidence of a past sexual relationship between CG1 and the Accused. I do not use it as a form of tendency reasoning; nor do I reason that because of a sexual relationship, the Accused necessarily must have engaged in the conduct alleged against him giving rise to any of the charges.

422. But the evidence weighs generally in favour of the Crown case and, in particular, enhances the credibility of CG1.

423. In the light of findings made in the Crown case concerning charges 12-17 (incl) I do not find that the Accused’s prior good character (in the limited respect identified) assists him. It also follows that I place no weight upon the express denials of wrongdoing the Accused made after he had been released from arrest (to the extent that they were directed to allegations concerning CG1). In doing so, I have considered the first and second limbs of the Liberato direction.

424. Returning now to my assessment of the discrete incidents involving CG1.

425. There is force in Mr Tuckey’s submission that there was no distinction in CG1’s accounts of the third and fourth incidents and, in particular, it was a feature of the complainant’s accounts of those incidents that the Accused was wet after taking a shower. My view is not that neither incident occurred. I am satisfied beyond reasonable doubt that on one occasion it did occur, and that occasion was the third of the occasions that the Crown alleged.

426. Consequently, I am not satisfied to the requisite standard that the conduct identified as occurring in the fourth incident, which sustains counts 10 and 11, occurred.

427. With reference to Markuleski, I do not accept that my doubt about the occurrence of the fourth incident because of CG1’s apparent conflation of the third and fourth incidents so impairs her general credibility or reliability as to be conclusive of verdicts on the other counts.

428. About the first incident, I agree with the Crown that the complainant could be forgiven if on details as to where the discrete incidents of offending within a singular episode (whether it was in her bedroom or his bedroom, wholly or partly) she was less than consistent. To repeat something I indicated earlier, I accept that CG1’s memories of the first time that the Accused used his penis to touch her vagina, the first time he used his hand to touch her vagina and the first time he used her hand to masturbate him were, even by 1 November 2019, vivid memories in her mind.

429. Taking all of the evidence into account, I am satisfied beyond reasonable doubt that the alleged conduct sustaining charges 1-5 (incl) occurred.

430. As I understood the position, it was not in contention that acceptance of CG1’s description of where the Accused had used his hand or penis to touch her vagina was such as to satisfy the definition of sexual intercourse in respect to these charges.

431. I am therefore satisfied beyond reasonable doubt that, with respect to the first of the alleged incidents, the charges 1, 3 and 4 are made out.

432. As to the second of the incidents, the Accused’s Counsel made no specific submissions as to that incident.

433. Having found that the conduct giving rise to charges 1, 3 and 4 was established, I find that in 1997, the Accused was sexually attracted to CG1. Sexual offending against a person the Accused found sexually attractive makes it more probable that, if given the opportunity, the Accused would commit offending of this kind again. The second incident CG1 complained of (concerning charges 6 and 7) reflected essentially the same conduct that gave rise to charges 4 and 5.

434. I am satisfied beyond reasonable doubt that the conduct concerning the second incident, which sustains charges 6 and 7 was established. I further find that what the Accused did constituted an act of sexual intercourse. I find that charge 6 is made out.

435. This leaves the third incident that the Crown alleges. I touched upon this earlier.

436. For this incident, I noted earlier CG1’s recollection that she was laying on a couch in the lounge room whilst her younger siblings were in bed. She even marked the place of the lounge (in Exhibit A). I find that she had a vivid recollection of the Accused coming out of the shower, dripping wet which, on the body of an adult male, would have left a firm impression upon a young girl (let alone the daughter of the male).

437. The conduct complained of was consistent also with other sexual incidents in respect to which the complainant’s account has been accepted.

438. I am satisfied beyond reasonable doubt that the conduct complained of for charges 8 and 9 occurred. I am further satisfied that the conduct satisfied the definition of sexual intercourse.

439. I find that charge 8 is made out.

VERDICTS

440. I return the following verdicts:

Count 1:   on the limited evidence available, guilty

Count 3:   on the limited evidence available, guilty

Count 4:   on the limited evidence available, guilty

Count 6:   on the limited evidence available, guilty

Count 8:   on the limited evidence available, guilty

Count 10:   on the limited evidence available, not guilty

Count 11:   on the limited evidence available, not guilty

Count 12:   on the limited evidence available, guilty.

Count 13:   on the limited evidence available, guilty

Count 14:   on the limited evidence available, guilty

Count 15:   on the limited evidence available, guilty

Count 16:   on the limited evidence available, guilty

Count 17:   on the limited evidence available, guilty

441. I will now hear from Counsel as to the next stage of the proceedings, involving consideration of the limiting term representing the best estimate of any period of imprisonment that the Court would have imposed on the Accused, or whether some other penalty would be appropriate, in accordance with s 63(2) and (3) of the Act.

ANNEXURE ‘A’

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Endnotes

Decision last updated: 11 September 2024