R v RL (No 1) - [2016] NSWDC 162

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RL (No 1) [2016] NSWDC 162
Hearing dates: 1 August 2016 – 4 August 2016
Date of orders: 05 August 2017
Decision date: 05 August 2016
Jurisdiction: Criminal
Before: Berman SC
Decision:
The accused is found not guilty on counts 1,3,5 and 6 on the indictment
The accused is found guilty of count 7 on the indictment.,
The accused is convicted by his pleas of guilty on counts 2 and 4 on the indictment.

Catchwords: CRIMINAL LAW – Judgment - Judge alone trial - Historical sexual assault - Young boy alleged to have had carnal knowledge with his sister - Accused conclusively presumed to be incapable of committing offence - Crown concedes accused must be acquitted on one count - Count should never have appeared on indictment - Absence of specific evidence regarding issue of doli incapax
Legislation Cited: Crimes Act
Cases Cited: C (a minor) v DPP [1995] UKHL 15 at [38].
R v Waite [1892] 2 QB 600
Category: Principal judgment
Parties: The Crown
RL
Representation:
Counsel:
P Rosser QC - Accused
Solicitors:
Director of Public Prosecutions
Leanne Moystyn-Turner - Accused

File Number(s): 2014/00270745
Publication restriction: There is to be no publication of the name of the complainant and of any material which may identify the complainant. That would include the name of the accused.

Judgment

Introduction

On 1 August 2016 the Crown presented an indictment containing 7 counts against the accused RL.
The counts and the accused’s pleas to them were as follows:

Count 1 an allegation of carnal knowledge – plea of not guilty,

Count 2 an allegation of indecent assault laid in the alternative to count 1 - plea of guilty,

Count 3 an allegation of carnal knowledge – plea of not guilty,

Count 4 an allegation of indecent assault laid in the alternative to count 3 - plea of guilty,

Counts 5 and 6 were allegations that the accused incited two others to have carnal knowledge with the complainant - pleas of not guilty and,

Count 7 was an allegation of indecent assault – also a plea of not guilty.

It is I who will determine the appropriate verdicts in this trial, an election for trial by judge alone having been made by the accused and consented to by the prosecution.
There is to be no publication of any evidence which would identify or tend to identify the complainant in this matter. That would include publication of the name of the accused.

Summary of the evidence.

Complainant

The complainant, now 62, alleges that the accused committed a number of offences against her between when she was 5 and 15 years old. She is the younger sister of the accused. There is about 6 years between them. The complainant and the accused have 4 other brothers P, T, F (known as J) and R. The accused was the oldest of the siblings.
All the witnesses and the accused have the same family name. Without meaning any disrespect at all I will refer to the relevant participants in this trial as: “the complainant”, “the accused”, “T” or “T” and “P”. I will similarly use the given names of the other members of the family mentioned in this judgment.
In the early 1960’s FL the father of the accused and complainant was the postmaster of the XXX post office. There was a residence attached to the post office where the family, including F’s wife and the mother of the children, B, lived. The complainant shared a bedroom with one of her brothers while the accused had a bedroom of his own.
The complainant gave evidence that one day when she was 8 years of age the accused invited her into his bedroom so that they could play “doctors and nurses”. When they got there the accused pulled the complainant’s pants down to her ankles, did the same with his own pants and then lay on top of the complainant, both of them being on his bed, penetrating her vagina with his penis. The complainant said that she was lying on her back with the accused lying on top of her facing her.
This incident came to an end when the bedroom door opened and the complainant saw her brother T in the doorway. T appears to have seen what was going on because he yelled out “mum” and ran down the stairs. The complainant said that her parents came up the stairs and asked her “did xx do something to you?” to which she said “no, he didn’t do anything”. The complainant explained the reason that she told that untruth was because the accused threatened that she would never be included in anything to do with her family ever again if she told the truth.
That incident forms the basis of counts 1 and 2 on the indictment. As I’ve noted above the accused pleaded not guilty to count 1. As presented to the complainant in cross examination, it was suggested that while he had rubbed his penis near and indeed on top of the complainant’s genitals, no penetration ever occurred. The complainant would not accept that version of events but it explains the accused’s plea of guilty to count 2.
The next incident which the complainant recalls occurred when she was in the backyard with 3 of her brothers, including the accused. She said that she recalled this being at a time when she was 8 years of age but could not explain why she believes she was that age. (The date on which this incident occurred will become crucially significant for reasons explained later). Her memory was that the accused said something along the lines of “I can make you go wee wees” and she recalled being flat on her back on the grass with her underwear around her ankles while the accused was on top of her penetrating her vagina with his penis. Her two brothers T and P were looking at what was occurring and the accused said to them “come on you have a go”. They both refused the accused’s invitation.
What the accused did to the complainant forms the basis of counts 3 and 4 on the indictment and the invitation to T and P forms the basis of counts 5 and 6 on the indictment.
Once again the complainant did not tell her parents what had occurred. She explained that she had lied previously when she denied that anything untoward had happened earlier and she thought that if she made an allegation against the accused now she would not have been believed. Indeed it was her evidence that the accused told her that she would not be believed.
As before, the cross examination of the complainant about this incident in the paddock suggested that, as on the occasion in the bedroom, he had merely rubbed his penis on the complainant’s upper thighs and external genitals. Consistent with that version of events, and as I have already noted. he pleaded not guilty to count 3 and guilty to count 4. The complainant denied the proposition put to her in cross examination that the accused had never incited his brothers to perform an act of sexual intercourse upon her.
Count 7 was alleged to have occurred sometime later when the complainant was 15. By this stage the family had moved to a different home at XX the accused was not living there, but visiting regularly. The complainant gave evidence that on one occasion after she had gone into the bathroom to wash her hands the accused came in and held her tightly, rubbing his erect penis against her bottom. Although she struggled she could not get free. She managed to turn around and the accused at that stage was pushing his penis against her pubic area. Her evidence was that the accused asked her why she was struggling and she said “I don’t want to get pregnant”. In cross examination it was put to her that this incident did not occur. She would not accept that suggestion.

T gave evidence about 3 particular incidents of sexual misconduct by the accused towards the complainant. One of them was something he had remembered only the night before giving evidence and it is to be noted that the complainant did not give evidence of any sexual misconduct beyond that which was the subject of counts on the indictment.
T recalled an incident which matched the evidence of the complainant concerning the events which occurred in the accused’s bedroom and which formed the basis of counts 1 and 2 on the indictment. There were some differences of course. T said that he, P, the complainant and the accused had been playing a board game in the accused’s room when he and P were told to leave the room and not come back. He said that he re-entered the room a few minutes later and saw sexual intercourse occurring between the accused and the complainant and could actually see that the accused’s penis was inside the complainant’s vagina as he withdrew his penis upon becoming aware of his, T’s, presence in the room.
He told his parents what he had seen but was punished because, upon inquiry from their father, the complainant denied anything untoward had occurred. He said that this incident occurred when he was either 9 or 10 years of age. He later gave evidence that he associated this incident with his mother’s pregnancy when she was pregnant with his youngest brother R, he being born on 27 April 1962.
He also gave evidence in support of counts 3, 4, 5 and 6 on the indictment. He was unclear as to when this occurred and freely acknowledged that he gave contradictory evidence as to when it was. He said that he was younger than 12 or he may have even been 12 but also said that this incident occurred probably months after the incident in the accused’s bedroom when, it will be recalled, that he said that he was only 9 or 10, or at a time his mother was pregnant with R.
He described the incident occurring in a different location to the complainant but it was still in a grassed area at a location behind the post office where they all lived. He said that the complainant was naked and the accused said to his brother P something along the lines of “you do it with her” which invitation P refused. The accused then said “you do it T”. He clearly believed that he was being asked to engage in sexual intercourse with his sister. He said that he thus removed his pants and attempted to insert his penis into the complainant’s vagina but couldn’t get an erection. He said that the accused then said to him “you get out of the way and I will do it” so he left.
As I have mentioned he also described an incident which the complainant did not describe. He said that on one occasion, earlier than the bedroom incident, the accused grabbed the complainant, told P to pull her pants down and then he and P held the complainant down. She was too strong for him and so the accused told him to keep a look out. He saw his brother J, who would have been 3 or 4 at the time approaching so he told the accused, who didn’t react. When J saw what was happening he shouted “leave my sister alone”.

The other Crown witness was P. He is another brother of the complainant and the accused. He spoke of 2 specific incidents. As was the case in the evidence of the complainant, one incident occurred in the paddock at the rear of the house and the other in the accused’s bedroom. He said that the paddock incident was in 1960 and the bedroom incident in 1963.
His evidence was broadly supportive of the complainant’s evidence regarding counts 3 and 4 but, importantly, he gave no evidence of any encouragement or incitement from the accused to have sexual intercourse with the complainant in the paddock. He said that after he saw the accused get on top of the complainant, he and the others, including his brother J who was only 3 at the time, headed back to the house.
He said that the bedroom incident must have been when the accused was 15 because he could recall that this occurred after the accused had cycled from XXX where he was living during the week working at the XXX. He knew the accused left school when he was 14 years and 9 months and so was able to say that the accused would have been 15 at the time of the bedroom incident. He described an occasion when he went upstairs one Saturday morning to see the accused, but when he walked into his bedroom he saw the accused on his bed, lying on top of the complainant.

Relevant Principles of Law

At this stage I will set out some important matters of law. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused.
Many of these principles are of limited application to counts 1, 3, 5 and 6 because of the way in which I have reached a verdict on those counts. Nevertheless it is important that I state and apply the following principles of law.

Decide the case according to the evidence

I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial.

No emotion

I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charges he faces. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy.

Onus of Proof

The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty.
What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charges arising from the indictment. In this case 2 principles of law arose which required the Crown to prove things which went beyond the ordinarily understood elements of the charges on the indictment. Once those issues arose, it became the task of the Crown to prove the relevant matters of fact beyond reasonable doubt.

Not All Issues of Fact Need to be Resolved

The Crown does not need to prove that every word spoken by the complainant is true.
It is not necessary to find in favour of the Crown on every issue of fact which is disputed by the accused. Nor is it necessary to come to a finding one way or the other about many of the disputed aspects of the evidence.
For example I have not found it necessary to decide whether or not the complainant sent the emails in MFI 3 and MFI 4. Whether or not they were sent does not assist me to resolve the issues in dispute in this trial. Even if they were sent, as the cross examination suggests they were, they are in no way inconsistent with the allegations made by the complainant. I find nothing unusual in the idea that a woman who was sexually assaulted by her brother as a child would be prepared to have the contact with the accused which the emails in those folders apparently demonstrate.
And further, the accused admits that he indecently assaulted the complainant on 2 occasions, he says by rubbing his erect penis against the genitals of his sister. This is not a case where the dispute between the parties is whether there was any sexual assault at all - the only dispute is what form that assault took and how many times an assault occurred. In such circumstances whether or not the complainant sent emails to the accused which contained jokes of a sexual nature is of no real significance.

Delay – Credit

There was a delay between when the complainant said she was first sexually assaulted by the accused and when she complained about it, first to her father and then later to the police.
I have considered whether this delay has an impact on the credibility of the complainant. A failure of the complainant to tell anyone about what she says happened soon after she said it occurred, would not necessarily indicate that the evidence given by her is false.
There may be good reasons why any victim of sexual assault may hesitate to complain about it. I have already noted the evidence of the complainant as to why she did not make immediate complaint to her parents about what she says the accused did to her. I have no trouble at all in accepting that the complainant had good reasons for not telling anyone what the accused had done to her for many years.
The result is that while delay in complaining certainly effects the credibility of the complainant, that effect is moderated by the circumstances which explain in a wholly understandable way, why the complainant would delay in her complaint.
I also have to assess whether the delay in T saying anything to the authorities affects his credibility. His evidence was that he had told his parents about the bedroom incident, despite his fear of the accused, and was punished by his mother after the complainant denied that anything had occurred. This would explain his failure to complain about the incident where he said he was incited to have sexual intercourse with the complainant. I can easily accept why, in those circumstances, he would not say anything to his parents about a later incident.
P also said nothing to anyone about what he says he saw the accused doing to his sister until many years later. He gave no explanation for this but did say that the accused was in the habit of bullying him, even at one stage breaking his nose.
And once again it is important to note that the accused admits that he sexually assaulted the complainant on 2 occasions. So the delay in complaining by these 3 witnesses is of much less importance to resolving the dispute in this case that it would be when the defence case is that no sexual assault occurred at all.

Delay – Forensic Disadvantage

There is another aspect of the delay between when these offences were alleged to have occurred and the trial which is now being held many many years later.
Because of the delay between the time when these events are alleged to have occurred and the time when the allegations were brought to his notice, the accused has had difficulty in meeting those allegations. Of course these problems get worse the greater the time between when the events were alleged to have occurred and the trial in which we are now involved. In this case the allegations relate to offences in the 1960’s but the accused only learnt that allegations had been made to police, and that he would thus have to answer the allegations, many years later.
Because of the delay, I am prepared to accept that the accused has been unable to properly meet the allegations raised against him and he has by reason of the delay lost the opportunity of perhaps calling evidence to test the allegations and the evidence of the complainant. The accused said that there were other children present, and indeed participating, during the events which formed the basis of counts 3 and 4. If we assume that there is some truth to that claim, the accused was denied the opportunity of identifying who those children were and perhaps calling them to give evidence.
As will be obvious later, the age he was when he did what he admits doing to the complainant was of great significance in this case. By reason of the delay the witnesses are now unable to be in any way precise as to when the events occurred.
The passage of time must also have made everyone’s recollections less accurate, less certain, and for those reasons less valuable.
In the context of a criminal trial where the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt I must take into account in that it is much harder to be satisfied to that high level where delay has diminished the accuracy of recollections and the ability of the accused to expose those recollections as unreliable.

Right to silence

I heard evidence that the accused exercised his right to silence when he was spoken to by the police after he was arrested.
All of us in the community have a right to refuse to answer questions put to us by the police if we don’t want to. It’s a very important right that we all have.

When the accused was spoken to by police they told him about that right. It would be a very strange situation if having been told about the right and having exercised that right, when the matter came to trial the tribunal of fact used the fact that the accused exercised his right to silence against him. So I will not use the fact that the accused has said he didn’t want to answer police questions against the accused in anyway.

Silence in Court

The accused has given no evidence in this trial. Although at one stage I was told that he would give evidence, after the Crown closed its case, and I pointed out to the Crown the absence of evidence on the issue of doli incapax Mr Rosser QC advised me that there would be no evidence in the defence case.
I will briefly speak about the significance of the fact that the accused did not give evidence. It would be more accurate to say that I will speak about the lack of significance of the fact that the accused chose not to give evidence in this trial.
An accused person may give evidence at his or her trial, but there is no obligation to do so.
Although the accused could have given evidence himself, or called evidence on his behalf, he could have, and did in this case, equally elect to give no such evidence nor call any on his behalf. The accused was entitled to say nothing in evidence in court and make the Crown prove his guilt if it can.
Silence of the accused in court is not evidence against him. His election not to give evidence, or call evidence on his behalf, constitutes no admission by him and no such conclusion must be drawn from that fact. His election not to give nor call evidence must not be used to fill gaps in the Crown's case or to make up any deficiencies or defects in the Crown's case.

Good Character

Evidence was given in the trial, by way of a concession from the Crown that the accused has no criminal convictions.
A person who has not done this sort of thing either before or after these offences alleged against him is less likely to have committed the offences than a person who has a history of criminal behaviour, especially a history of committing sexual assaults upon a child.
A person who has never been convicted of any offence, especially an offence of sexually assaulting someone, is less likely to have committed these offences than a person who does have a history of sexual offending.
So the fact that the accused has no convictions may make it less likely that he would have committed this offence.
Having raised character however, I should mention some aspects of the evidence which would suggest that, as a boy, the accused did not have an unblemished character at all.
The Crown witnesses spoke of a boy who was violent and a bully. I accept that evidence for 2 reasons. Firstly, because it was a universal feature of the evidence of those of the accused’s siblings who gave evidence and secondly treating his siblings as subject to his will, dominance and desires is consistent with behaviour to which the accused has admitted.
Evidence of bad character can never be used as positive evidence of guilt but is to be taken account when assessing the extent to which the accused’s lack of convictions can be put.
There is one other feature of this case that should be mentioned. As I have repeatedly said, the main issue in this case is not “did the accused sexually assault his sister?”. It is “what form did the sexual assault take and how often did it occur?”. In such circumstances a lack of convictions, particularly a lack of convictions for having sexually assaulted a child, is of much less significance than would ordinarily be the case.

Separate consideration to charges on indictment

I want to next speak about the fact that the accused is facing more than one allegation in this trial. That is because the Crown alleges that the accused committed a number of different offences. I have given separate consideration to each of those allegations. The evidence relating to each allegation is different – in particular each concerns a different act which the Crown alleges took place.
And while, by his pleas of guilty to counts 2 and 4, the accused agrees that some of those acts took place, he denies the others. So I have not treated my task in a global fashion – I have considered whether the Crown has proved the guilt of the accused on each allegation where the accused has pleaded not guilty by looking at the evidence which relates to that count.
If I was to find that the Crown had not proved an allegation, in particular if that was because I had a reasonable doubt about whether I could accept what the Crown witnesses said about it, I would have to take that finding into account when I consider the remaining allegations.

The suggestion by the Reiki Therapist

I will now say something about one aspect of the complainant’s evidence. She told me that many of her memories have only come back to her of more recent times, especially after she underwent treatment for post-traumatic stress disorder. One particular memory, that she was aged 5 at the time of the incident which forms the basis of counts 1 and 2 on the indictment was prompted by a statement made by a Reiki therapist. The complainant explained that this therapist was able to wave her hands over the complainant’s body and, through some unexplained ability, to know things about the complainant even if the complainant didn’t know them herself.
I have placed no weight at all on the complainant’s memory as to her age when the first event occurred for obvious reasons. A hearsay statement apparently made by a person who professes psychic ability, where that person was not on oath nor cross examined, is no basis for proof of anything in a criminal trial.

Consideration

The resolution of counts 1 and 3.

Let me turn now to a consideration of whether the Crown has proved the offences to which pleas of not guilty were entered beyond reasonable doubt.
I will start, logically enough, with Counts 1 and 3.
Although counts 1 and 3 are simple allegations of “carnal knowledge” or what would in modern day terms be describes as “penile/vaginal intercourse” there is an important matter which arises because of the age at which the accused was alleged to have committed these offences.
That matter concerns the now repealed common law presumption that a boy under 14 years of age is incapable of sexual intercourse. That this presumption existed until as recently as 1988 is a matter of some surprise to many in the community – surprise which is entirely justifiable. The presumption had its origins in Roman Law which applied 14 as the age of puberty for the purposes of judicial proceedings. It was an irrefutable presumption too - in R v Waite [1892] 2 QB 600, Lord Coleridge CJ said that the common law rule was clearly that a boy under 14 is under “a physical incapacity” to commit the offence of rape, and that evidence to rebut that presumption could not be admitted. Thus even if a 13 year old boy had been seen having sexual intercourse by many reputable people, and had even admitted such conduct, the presumption that he could not do what he clearly had done still applied.
Despite its strange and potentially unjust consequences the common law rule was in existence at the time of the relevant events in this trial, the rule only being overturned by the insertion of 61S into the Crimes Act in 1988.
Thus, even assuming that the factual basis for counts 1 and 3 is proved beyond reasonable doubt, the Crown needs to prove also that the accused was 14 years or older at the time counts 1 and 3 occurred.
With the state of the law at the relevant time thus expressed, I will now apply the evidence to the law and turn to the evidence regarding the accused’s age.
Count 1 was alleged by the Crown to have occurred when the complainant was 5. If that is the case then the accused was under 14 at the time.
As I mentioned earlier T gave evidence at one stage that he was 9 or 10 at the time of the incident in the bedroom which would mean that the accused was 12 or 13. His later evidence that he associated the incident with his mother’s pregnancy is equivocal as concerns the age of the accused. The accused turned 14 2½ months before R was born and so his mother was clearly pregnant with R both before and after the accused turned 14.
The only other evidence to suggest that the accused was 14 years or older at the time of the bedroom incident came from P. He firmly believes that there was an incident in the accused’s bedroom occurred after the accused left school at the age of 14 years and 9 months. He gave reasons for his belief too – that he was excited to see his older brother who was working and living during the week at the XXX. Although there was some suggestion made in addresses that P was describing a different bedroom incident to that described by the complainant and T, the complainant gave no evidence of such an event.
The burden of proof is on the Crown to prove beyond reasonable doubt that the presumption of incapacity does not apply. To be satisfied of that matter to that standard would require me to reject the evidence of the complainant and the preponderance of the evidence of T, as to the age of the accused at the time of the bedroom incident as not being reasonably possible. While I have no doubt at all as to the genuine nature of P’s belief of the age the accused was at the time of a bedroom incident, even assuming that he was speaking about the same bedroom incident as his sister, I am not satisfied beyond reasonable doubt that his evidence in this regard is reliable.
The Crown quite properly conceded that it cannot prove beyond reasonable doubt that the accused was 14 years or older at the time of the events which formed the basis of count 1, and so conceded that I would find the accused not guilty on count 1.
Count 1 should never have appeared on this indictment as the Crown case was always doomed to fail as far as that count is concerned.
The Crown makes no such concession regarding count 3. The complainant gave evidence that she has a firm memory that the incident which formed the basis of count 3 occurred when she was 8. If that is correct then the accused was 14 or 15 and the presumption of incapacity would not apply. However the complainant was unable to assist in any way as to what it was that led her to believe that she was 8 at the time. In evidence in chief she explained that she couldn’t say why she distinctly recalled being 8 years old at the time and could only later say that it was embedded in her memory that she was 8. She was unable to explain how she formed the conclusion that she was 8.
Although she did not draw the connection, she did say that R was a baby at the time of the paddock incident. The accused had already turned 14 by the time of R’s birth.
I have already mentioned the contradictory nature of T’s evidence as to when the paddock incident (the subject of counts 3 and 4) occurred. On one version he said it took place when he “may have been 12” (when the accused would have been over 14). On another occasion he said it took place a period of months, rather than days, weeks or years, after the bedroom incident which took place when he was 9 or 10 (The accused would have turned 14 approximately 4 months after T turned 10) or at a time when his mother was pregnant with R. T openly acknowledged the contradiction in these versions but was unable to assist in resolving the conflict.
P put the paddock incident as being in 1960 which, if accurate, would have meant that the accused was under 14 when it occurred. The Crown submitted that this paddock incident was not the one that the complainant was referring to in her evidence, and said that what has happened is that the complainant has forgotten about the incident which P described.
I have no doubt that the complainant’s evidence was given honestly as regards her belief that she was 8 years old at the time of the relevant events, and that she genuinely believed that R had been born, but the issue remains as to whether she is accurate in that regard. Is there a reasonable possibility that her genuine belief that she was 8 years old is a mistaken belief and that in truth she was only 7 or even younger? I am satisfied that there is a reasonable possibility that that is the case.
The inability of the complainant to provide any evidence of any circumstances which would support the accuracy of her belief tends to undermine the significance of her evidence that R was born at the time.
This has to be coupled with the evidence of 2 of her bothers. The only independent support for the complainant’s belief as to her age came from one of the versions given by T, but there was no reason for me to prefer one of T’s versions over the other. If T was 9 then the accused had not turned 14. If he was 10 then the accused may have turned 14. If he was 12 then the accused must have turned 14. If the paddock incident came some months after the bedroom incident which was associated with his mother’s pregnancy then the accused may have been 14, but he may also have been 13. T’s evidence did not really assist me as to identifying the age of the accused at the time of the paddock incident.
And finally there is the evidence of P which cannot be ignored. Some features of his description of the paddock incident about which he spoke matched the incident about which the complainant gave evidence, in particular the location, although other matters did not.
For the accused to have been 14 or older at the time of count 3 the Crown has to demonstrate, amongst other matters of course, that it is reasonably possible that P was wrong about the paddock incident being in 1960, or that he was speaking about a different event, an event of some significance but which the complainant herself does not remember.
When I consider all of this evidence, I am not satisfied beyond reasonable doubt that the incident which formed the basis of count 3 on the indictment occurred when the accused was 14 or older. He may have been, but I am not satisfied beyond reasonable doubt that he was. He was thus conclusively presumed to have been incapable of doing something which the Crown must prove he did.
The result is that for those reasons I must find the accused not guilty on counts 1 and 3.
Those findings of course do not necessarily affect the complainant’s credibility. A finding that it is reasonably possible that she is mistaken, when she has a genuine belief as to the things she says, does not say anything at all about her honesty.
Having determined that the Crown has not proved beyond reasonable doubt that the accused was 14 years or older at the time counts 1 and 3 were alleged to have occurred, I do not need to decide whether I would have been satisfied beyond reasonable doubt that penile/vaginal intercourse actually occurred. However I am able to say that I have no doubts at all that the complainant honestly believed that such sexual activity did take place.
That brings me to counts, Counts 5, and 6, the incitement counts.

Counts 5 and 6 - Doli Incapax

As I have just found, I am not satisfied beyond reasonable doubt that the accused was 14 or older at the time he was alleged to have incited 2 of his brothers to perform penile/vaginal intercourse upon the complainant.
This brings into play another ancient legal rule concerning the criminal liability of children – the principle known as doli incapax.
It is not enough for the Crown to prove that the accused did what the Crown alleges he did. The Crown also has to prove that when he did it he knew that what he did was seriously wrong either as a matter of morality or according to the ordinary standards of reasonable people.
It’s not enough for the Crown to prove that the accused thought that what he was doing was just naughty or a bit of mischief. The Crown has to prove that he knew that it was seriously wrong for him to incite his brothers to have sexual intercourse with their sister.
I should emphasise a number of things about this test.

Firstly it’s a question about what this accused would have known, not what I would have known when I was that age. Nor is it a question of what a reasonable boy of that age would have known. The Crown has to prove that when these events occurred, this accused knew that what he was doing was seriously wrong.

Secondly, the Crown doesn’t have to prove that the accused knew that it was illegal, that it was against the law, to do what he did.

Thirdly, what the Crown has to prove is that at the time the accused incited his brothers to have sexual intercourse with their sister, the accused knew that what he did was seriously wrong either as a matter of morality or according to the ordinary standards of reasonable people.

Fourthly, there is a difference between knowledge that behaviour is naughty or mischievous and knowledge that behaviour is seriously wrong. Proof of the former is not enough for the Crown to succeed.

Fifthly, the Crown has to prove things beyond reasonable doubt.

Remarkably there was no specific evidence adduced from the Crown on this issue, even when this was pointed out to the Crown at the close of the Crown case. What evidence there was came almost accidentally as it was relevant to other issues in the trial. Thus I know that the accused went to school. I know that he was able to get a job in the XXX after he left school at 14 years and 9 months, but what his job involved I do not know. The uncontradicted evidence is that he threatened his sister in order to get her to remain silent about his conduct in the bedroom. He said to T “don’t tell mum” after he, T, saw him on top of their sister in his bedroom. He got T to act as a lookout on one occasion. He said to P “If you tell mum I’ll kill you” after he, P, walked in on the accused lying on top of their sister in his bedroom. Although I am not satisfied beyond reasonable doubt that he had turned 14, he must have been quite close to that age. That appears to be the extent of the evidence regarding the issue of doli incapax.
In discussions at the end of the Crown case, the Crown stated that its position was that counts 5 and 6 occurred when the accused was over the age of 14. The Crown did not apparently wish to adduce, as a fall back proposition in case I was not satisfied that the accused had reached the age of 14, any evidence from any other source, including his siblings who gave evidence on other matters, as to such things as the subjects the accused was taught at school, how well he did at school, the moral instruction which was given to the accused by his parents, and other evidence of relevance to the topic of what the accused knew about the wrongfulness or otherwise of his misconduct.
I will address the issue of doli incapax by examining the evidence before me.
I have already mentioned threats from the accused to his siblings to keep quiet about his sexual misbehaviour. These suggest knowledge of wrongdoing on the part of the accused, but say little about the accused’s appreciation as to how serious that wrongdoing was.
Then there is the nature of the criminal act alleged against the accused. He was inviting or encouraging his younger brothers to have sexual intercourse with their sister. Even accepting Mr Rosser’s submissions that the accused’s criminality is based on mere words, the nature of that act itself would suggest the likelihood that a 13 year old boy would know that this was seriously wrong. On the other hand, to prove a child’s guilty knowledge there must be more than mere proof of doing the act charged however horrifying or obviously wrong the act may be. See C (a minor) v DPP [1995] UKHL 15 at [38].
In some cases the circumstances of the offence will provide evidence which would tend to suggest that a child who committed the offence would have known that his or her conduct was seriously wrong. For example such a finding would be much easier to make when an accused child persisted in conduct which caused the victim of it great distress. But this is not a case where there was any evidence given that the complainant was screaming and crying, although there was some evidence that she was struggling. In any case, many acts of mere naughtiness involve one sibling causing another to cry and to struggle to get away from a mischievous older sibling.

There is no evidence that the brothers who were alleged to have been incited to have sexual intercourse with her exhibited signs of distress and indeed T’s evidence was that he attempted to do what he was encouraged to do by the accused, namely have sexual intercourse with his sister.
The Crown has to prove beyond reasonable doubt more than that the accused thought that what he was doing was naughty behaviour as part of childhood sexual experimentation.
There is clearly no bright line between a realisation that particular behaviour is simply naughty or mischievous and a realisation that it is seriously wrong.
Whilst I would be prepared to find beyond reasonable doubt that many, if not most boys of 12 or 13 would know that it was seriously wrong to incite their younger brothers to have sex with their sister, and whilst I will also be prepared to find beyond reasonable doubt that a reasonable boy of 12 or 13 would be of the same opinion, that is, as I have already emphasised, not the appropriate test. I have to be satisfied that this accused knew that his conduct was seriously wrong either as a matter of morality or according to the ordinary standards of reasonable people.
This is where the absence of specific evidence concerning the accused is important. As I said before, how do I know what moral instruction was given to the accused by his parents? I do not know whether and to what extent moral instruction was given to the accused by teachers at school, any religious figure, or a respected adult in the community such as a friendly police officer. I do not know to what extent the accused was exposed to the ordinary standards of reasonable people. I do not know whether the accused had the intellectual capacity to receive and understand any moral instruction he did receive.
It is not too much of an exaggeration to say that the Crown case on the doli incapax issue is reduced to a submission that all 12 or 13 year old boys who have attempted to hide their wrongdoing must have known in the early 1960’s that it was seriously wrong to incite their brothers to have sex with their sister. That is a finding I am not prepared to make beyond reasonable doubt.
The result is that the accused must be found not guilty on counts 5 and 6, not, I emphasise because of any problems with the credibility of the Crown witnesses, but because the Crown has not satisfied me beyond reasonable doubt that the accused had the requisite knowledge about the wrongfulness of the actions alleged against him in those counts.
Before I leave this topic I should say something about the interaction between the accused’s plea to Count 4 and the doli incapax issue. By his plea to count 4 the accused admits that he had either reached the age of 14 at the time of the paddock incident or, and this is consistent with the cross examination of the Crown witnesses, that he was still under 14 but he knew that it was seriously wrong to rub his erect penis on the external genitals of his sister. Could this amount to an admission that he would have known that it was also seriously wrong to incite his brothers to have penile/vaginal sexual intercourse with their sister? Could this plea be used as evidence relevant to doli incapax? The Crown was alerted to these issues during the course of the trial but made no submission in her final address that I could use the plea of guilty to count 4 in determining the doli incapax issue. I therefore did not ascribe any evidentiary significance to the plea to count 4 when I considered whether, for counts 5 and 6, the Crown had proved beyond reasonable doubt that the accused knew that the alleged conduct was seriously wrong.

Count 7

That brings me to a consideration of the remaining count, count 7.
Thus far I have decided verdicts as a result of the application of particular legal rules concerning the criminal liability of children which applied to this trial.

The accused will be acquitted on counts 1 and 3 because the Crown was unable to satisfy me that the accused was above the age of 14 at the time and thus the presumption of incapacity applied

The accused will be acquitted on counts 5 and 6 because the Crown was unable to satisfy me that the accused was above the age of 14 at the time. The principle of doli incapax thus arose and the Crown was unable to prove beyond reasonable doubt that the accused knew that his conduct was seriously wrong.

It is important to note for my consideration of count 7 that none of the acquittals on counts 1, 3, 5 and 6, was on the basis that I had any doubts at all about the credibility of any of the Crown witnesses.
Indeed, having carefully listened to the evidence and having watched the witnesses carefully, I was satisfied that each of them was doing his or her honest best to give evidence about what he or she could recall.
Of course there were differences in the evidence, some reasonably significant. For example

T spoke about 3 incidents where the accused was seen to lie on top of the complainant while the complainant herself only spoke of 2..

The complainant recalled that T and her brother declined the accused’s incitement to have sex with her, but T said that he tried to and failed.

P’s evidence was that there was no incitement either of him or T.

Clearly in some respects these witnesses contradicted each other. Because the complainant’s evidence stands alone as far as count 7 is concerned the relevance of these contradictions is that they may say something about the reliability of the complainant’s evidence when she said that the accused rubbed his erect penis against her body in the XXX residence.
In that regard it is important to note that, apart from the latest example I gave above, at no stage has the complainant said that something occurred which other evidence suggests did not occur. And I do not find it at all surprising that P would honestly not recall being invited to have sex with his sister when this invitation came about in the context of the accused appearing to be having sexual intercourse with his sister in a paddock.
The complainant’s evidence about her memory of the incident which gave rise to count 7 was clear and unambiguous. Unlike other aspects of her evidence there was no evidence that her memory of this event had ever left her, or that her memory was influenced by the reiki therapist.
The only evidence in this case regarding count 7 came from the complainant. There was no support for her in the evidence of P or T. There was no evidence from the accused in which he denied such behaviour. Because the accused exercised his right to silence when spoken to by the police there was no ERISP tendered by the Crown in which he denied indecently assaulting his sister in the XXX residence.
In that sense, the evidence is all one way. But that does not mean that the complainant’s evidence must necessarily be accepted. The Crown must prove to me beyond reasonable doubt that the complainant’s evidence is honest and accurate. That standard of proof is not diluted where, as is often the case in matters of alleged sexual assault, the alleged offence took place in private.
I recognise that it is much harder to be satisfied to that high standard where there is but a single witness relied upon by the Crown. Despite that circumstance I am satisfied beyond reasonable doubt that the accused did what the complainant said he did. I am satisfied that he held his sister tightly while, both being clothed, he rubbed his erect penis up against her bottom and, after she struggled, against her pubic area.
I make this finding primarily because of:

My impression of the complainant in the witness box as doing her honest best to tell the truth.

The absence of any suggestion that her memory of the relevant events was a “recovered memory”.

The fact that when giving evidence the complainant was prepared to make concessions where appropriate, for example conceding that she had no memory of any pain when she said the accused penetrated her vagina with his penis.

My conclusion that she has not in any way been shown to have fabricated any of her allegations against the accused.

The significantly reduced weight which I have given to the evidence of the accused’s good character, for the reasons I have earlier given.

There was no suggestion that it would be anything other than indecent for the accused to have done what the complainant described. Even without that circumstance I would have had no trouble at all in being satisfied beyond reasonable doubt that the accused’s actions were indecent according to the ordinary standards of respectable people in this community.

Conclusion

Before I formally announce my verdicts I should say something about the way in which this case has been presented.
The complainant is a person who, the accused admits and I have found, was the subject of his sexual predations. I have no doubt that her life has been significantly affected by that circumstance. She was entitled to look towards the prosecution in this case as an organisation which would present its case against the accused in a manner which did not add to her distress.
Yet, as I have noted above, the Crown presented an indictment which contained on it a count, count 1, which the Crown could never prove. The complainant is entitled to be concerned by the implicit suggestion made to her that the accused might be convicted of having had sexual intercourse with her in the accused’s bedroom, when that was never going to be the case.
Then we have the situation where the Crown adduced no evidence at all specifically relevant to the issue of doli incapax, a matter which it was required to prove beyond reasonable doubt in the event that I found that the accused was under the age of 14 at the time counts 5 and 6 were said to have occurred.
Not only did the Crown not adduce evidence from some source other than the complainant and her brothers T and P, the Crown did not even ask them any questions specifically of assistance to the doli incapax issue.
The Crown declined an opportunity to call specific evidence on the issue, even after the risk that I would not accept beyond reasonable doubt that the accused had reached the age of 14 at the relevant time was pointed out to her. It may be that there was no evidence which the Crown could adduce on this issue from any source at all. I simply do not know, but the Crown’s position was firmly that the accused had reached the age of 14, a proposition I have not found proved beyond reasonable doubt.
I want to therefore emphasise that the failure of the Crown to prove counts 1,3 5 and 6 beyond reasonable doubt is not because I do not believe the complainant. It is because of the operation of 2 legal rules, one now repealed, which govern the criminal liability of children, and the application of those rules to the evidence called in this trial by the Crown.

Verdict

I find the accused not guilty on Counts 1, 3, 5 and 6.
I find the accused guilty on Count 7
He is thus convicted by his pleas of guilty on counts 2 and 4 and by my verdict of guilty on count 7

**********

Addendum

Subsequently proceedings on Count 7 were stayed - R v RL (No 2) [2016] NSWDC 182.

Amendments

24 August 2016 - See addendum

24 August 2016 - Cover sheet amended to indicate judgment (No1)

08 August 2016 - Correction of spelling error

08 August 2016 - Spelling correction in catchwords

Decision last updated: 24 August 2016

Medium Neutral Citation:	R v RL (No 1) [2016] NSWDC 162
Hearing dates:	1 August 2016 – 4 August 2016
Date of orders:	05 August 2017
Decision date:	05 August 2016
Jurisdiction:	Criminal
Before:	Berman SC
Decision:	The accused is found not guilty on counts 1,3,5 and 6 on the indictment The accused is found guilty of count 7 on the indictment., The accused is convicted by his pleas of guilty on counts 2 and 4 on the indictment.
Catchwords:	CRIMINAL LAW – Judgment - Judge alone trial - Historical sexual assault - Young boy alleged to have had carnal knowledge with his sister - Accused conclusively presumed to be incapable of committing offence - Crown concedes accused must be acquitted on one count - Count should never have appeared on indictment - Absence of specific evidence regarding issue of doli incapax
Legislation Cited:	Crimes Act
Cases Cited:	C (a minor) v DPP [1995] UKHL 15 at [38]. R v Waite [1892] 2 QB 600
Category:	Principal judgment
Parties:	The Crown RL
Representation:	Counsel: P Rosser QC - Accused Solicitors: Director of Public Prosecutions Leanne Moystyn-Turner - Accused
File Number(s):	2014/00270745
Publication restriction:	There is to be no publication of the name of the complainant and of any material which may identify the complainant. That would include the name of the accused.