R v SW

[2022] NSWDC 2

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SW [2022] NSWDC 2

Hearing dates:

29 November 2021
30 November 2021
1 December 2021
2 December 2021
3 December 2021
7 December 2021
8 December 2021
9 December 2021
1 February 2022

Date of orders:

1 February 2022

Decision date:

01 February 2022

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Count 1 – Not Guilty

Count 2 – Not Guilty

Count 3 – Not Guilty

Count 4 – Not Guilty

Count 5 – Not Guilty

Count 6 – Not Guilty

Count 7 – Not Guilty

Count 8 – Not Guilty

Exhibits are to be returned to the Parties 

Catchwords:

CRIME — Sexual offences — Indecent assault

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M(2), 61O(2), 66DC(a), 61HC

Criminal Procedure Act 1986 (NSW) ss 133(2), 133(3)

Evidence Act 1995 (NSW) s 136

Cases Cited:

Cawthray v R [2013] NSWCCA 105

Douglas v R [2012] HCA 34

Eades v DPP (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241

Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v R (1998) 197 CLR 250

Harkin v R (1989) 38 ACrimR 296

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77

Mahmood v Western Australia (2008) 232 CLR 397

R v Jones [2011] QCA 19

R v VHP (unreported Court of Criminal Appeal NSW, 7 July 1997)

Reg v Dossi (1918) 13 CrApR 158

S v The Queen (1989) 168 CLR 266; [1989] HCA 66

The Queen v Phillips (1971) 45 ALJR 467

Category:

Principal judgment

Parties:

Regina
SW, Accused

Representation:

Counsel:
Emma Curran, Counsel for the Crown
Robert Webb, Counsel for the Accused

Solicitors:
Samantha Velcic, Solicitor for the ODPP
Aslan Cambaz, Solicitor for the Accused

File Number(s):

2020/69370

Publication restriction:

Non-Publication Order regarding identities of the accused and complainants.

Judgment

1. The accused was arraigned before me on 29 November 2021 on 8 Counts. To all counts he pleaded that he was “not guilty”. The specific Counts allege that the accused:

1. Between 28 September 2009 and 27 September 2012, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years of age, and at the time of such assault did commit an act of indecency upon the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

2. Between 28 September 2009 and 27 September 2012, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years of age, and at the time of such assault did commit an act of indecency upon the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

3. Between 28 September 2012 and 27 September 2014, at Bidwill in the State of New South Wales, did commit an act of indecency toward SR a person then under the age of 10 years, namely, between the ages of 7 and 9 years of age; contrary to section 61O(2) Crimes Act 1900 (NSW)

And further

4. Between 28 September 2013 and 27 September 2015, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 8 and 10 years of age, and at the time of such assault did commit an act of indecency on the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

5. Between 28 September 2013 and 27 September 2015, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 8 and 10 years of age, and at the time of such assault did commit an act of indecency on the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

6. Between 28 September 2015 and 27 September 2016, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, 10 years of age, and at the time of such assault did commit an act of indecency on the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

7. Between 13 February 2017 and 12 February 2020, at Bidwill in the State of New South Wales, did assault CB a person then under the age of 16 years, namely, between the ages of 7 and 9 years of age, and at the time of such assault did commit an act of indecency on the said CB; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

8. Between 25 December 2019 and 12 February 2020, at Bidwill in the State of New South Wales, did carry out a sexual act with or towards, CB, a child who is of or under the age of 10 years; contrary to section 66DC(a) Crimes Act 1900 (NSW)

JUDGE ALONE TRIAL

2. As this is a Judge alone trial, section 133(2) of the Criminal Procedure Act 1986 (NSW) requires me to state the principles of law I apply and the findings of fact on which I rely. Section 133(3) requires that I am to take into account any warning to be given to a jury, were this to be a jury trial, in dealing with the matter.

3. I approach these statutory obligations in accordance with the statements of principle made in Fleming v R (1998) 197 CLR 250 and Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52].

4. The accused is entitled to the presumption of innocence unless and until I determine that I am satisfied to the standard of beyond reasonable doubt of his guilt in relation to any or all Counts. The Crown alone bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the accused. The accused bears no onus to prove anything in the trial. It is not enough for the Crown to satisfy me to the level of suspicion of guilt or to satisfy me that the evidence demonstrates the accused is probably guilty. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offences. However, the Crown is not required to prove the truth and reliability of every disputed fact nor is it required to answer every question that might be posed concerning the evidence in the trial.

5. The evidence is the answers given to questions and not the questions asked by barristers. The exhibits also form the body of evidence. I have, as I am required to do, considered the whole of the evidence impartially and dispassionately. There is a great deal in this case, including that each of the complainants is a child and that the accused is a person of substantial intellectual deficit, that could invoke sympathy or emotion. I have determined the verdicts, as I am required to do, maintaining my judgment, assessment of the witnesses and the evidence generally, without sympathy, emotion or personally held views of the subject matter.

[Initial style pseudonyms used for the accused, both complainants and all witnesses related by family or friendship to the complainants and the accused]

BACKGROUND CIRCUMSTANCES

6. The accused was described by his niece, the complainant SR, as different to “normal” people in that he is obviously intellectually very slow and simple in his functioning. She said he is unable to cook, make toast or pretty much do most things. Because of his level of intellectual functioning, he spends most of his time within his house, which in these reasons is referred to as his mother DW’s house. He is not able to cope with people socially, does not drive a car, and is not able to perform tasks such as shopping. In DW’s house, his sisters JW and EW share a bedroom, his brother AW has his own bedroom, and his mother, DW, has her own bedroom. The accused does not have a bedroom. He sleeps on the couch in the lounge room of the home. He does not have a cupboard. He wears the same clothes for weeks at a time. His second cousin, the complainant CB, thinks that he probably showers weekly. There is evidence that he does not wear underwear. CB said that he smells stale.

7. DW’s house is situated about 7km from SR’s home. DW’s house is within a few minutes travel from CB’s home.

8. The accused is the maternal uncle of SR. He was born on the 17^th of March 1992 and SR was born on the 28^th of September 2005, making the accused 13 and ½ years older than SR. CB was born on the 13^th of February 2010, making the accused nearly 18 years older than her. Because of the evidence describing his deficits and behaviour, I do not assume that these differences of age provide the measure of comparative differences of behaviour or cognitive maturity between him and either complainant.

9. The accused is the second in line of age amongst his siblings. His brother AW is 5 years older than him, his sister EW is one year younger than him and his sister JW is four years younger than him.

10. The families of DW, the accused, SR and CB were, at the time of the events the subject of each Count, very close including frequent sleepovers of children in each other’s houses. The families of JR, SR’s mother and LM, CB’s mother, visited the accused’s home, DW’s house, virtually daily. DW is referred to by CB and SR as “Nan” in the evidence. LM referred to DW as “Aunt”. The accused was the exception to this interaction in that he was not included in sleepovers to LM’s house, at least for 7 years prior to the trial. He generally stayed within DW’s house. CB ceased visiting DW’s house following her making her complaints to her mother LM. Otherwise the families remain close. SR and her siblings continue to attend DW’s house at which the accused still lives, virtually daily, before or after school. SR avoids being alone with the accused.

11. DW is in fact the grandmother of SR and her siblings, older brother AR and her younger sister ABR.

12. DW’s daughter, JR who deceased on 5 November 2019, was the mother of SR, AR and ABR.

13. LM was JR’s cousin but she described their relationship as very close, as if sisters. LM’s male partner is SB. LM has six children including the complainant, CB.

14. On a date of which SR is uncertain, but which she estimated as 2013, (in the evidence SR recalled that years ago DW had said she had been living in her house for 7 years) but which was reliably shown to be 2009 on the evidence of WW, DW and Detective Sergeant Frost, Officer in Charge, DW moved from their home at Warwick Farm to the DW house. WW, DW’s husband and the father of the accused and his siblings, remains living at Warwick Farm. He is referred to as “Pop” in the evidence of SR.

15. LM said that until CB complained to her in January 2020 she did not turn her mind to any problems with the accused’s behaviour.

16. When SR stayed over at DW’s house, she stayed in the bedroom shared by EW and JW, the accused’s sisters. SR’s brother AR would share the accused brother, AW’s, bedroom.

CIRCUMSTANCES LEADING UP TO COMPLAINTS

17. In mid-2018 SR told her mother JR that the accused had touched her (2015 – 2017 SR – Exhibit A (MFI 7 at 286-287; but because SR was a poor historian, prefer LM at T 159.29-45). She did not tell her mother any more detail than that. When her mother looked shocked, and enquired of what she meant, SR told her nothing had happened. JR informed LM of “something” (not better described in the evidence) about SR and the accused. LM asked SR if what her mother JR had said about the accused was true. SR answered in the negative and LM informed JR that it was not true. These reasons return to LM’s evidence of that discussion.

18. In cross-examination SR agreed that when she had this opportunity to complain to her mother JR and aunt LM, she was aware that each of them was a responsible adult who would protect her. She agreed that it was after all of the “bad things” of which she complains had finished happening. She confirmed her good relationship with her mother and her aunt. Her evidence was (T49.27-50.27):

Q. When you told your mum that nothing had happened, was that at a time after the last thing that you've indicated that [the accused] did to you, the last bad thing had finished or happened?

A. Yes.

Q. Ma'am, I think was it the case that at around this time you also spoke with your aunty or [LM]?

A. Yes.

Q. Can I just ask you this question. In relation to your mum, did you have a good relationship with your mum?

A. Yes, I did.

Q. You knew that your mum [JR] loved you and you knew that your mum would always take steps to protect you or look after you?

A. Yes.

Q. Is that true?

A. Yes, it is true.

Q. You also knew, or you believed, that Aunt [LM] was the same? That is she was a person who would look after you and protect you as a responsible and mature adult? An older person. Is that fair?

A. That is fair.

Q. At about the time that you said some things to your mum [JR] about [The accused] not doing anything bad to you, at around that time, I think you spoke with [LM]?

A. Yes.

Q. Your aunty [LM] was very specific or direct and he (sic) said to you, "Look, if anything happened with you and Uncle [the accused], you have to speak up. You have to say something". Do you agree with that?

A. Yes.

Q. Do you agree that Aunt [LM], she said to you, "So you have to tell us if something did happen"? Do you agree with that?

A. Yes.

Q. Do you agree that you said to your Aunt [LM], "No, nothing happened"?

A. Yes, because I was scared.

Q. I appreciate that you were scared, but do you agree that after you had spoken to your mum [JR] and said, "Nothing's happened', you'd told Aunt [LM] when she asked you, you said, "No, nothing had happened". Is that fair?

A. Yes.

Q. I think it's the case that you went on to say to [LM], "All he was doing was being an uncle, giving us a kiss on the cheek, giving us hugs". Do you remember saying that to [LM]?

A. Yes.

19. Despite the encouragement and reassurance given by LM that she should speak up freely, SR maintained only that she had been “touched”, that nothing inappropriate had happened and she made the positive statement to LM that the accused was being an uncle, giving kisses and hugs. She did not say to either SR or LM that anything sexual or indecent had happened.

20. In mid-2018 SR would have been 12 and approaching her 13^th birthday. I accept that she could have been confident of the protection of her mother and aunty, without reprisal if she spoke up, whilst at the same time being subjectively scared to complain of conduct toward her intellectually slow brother. SR explained that one reason she had not told people before LM raised with her CB’s complaint in January 2020, was that the family might hate her “because they favourite him”. Nevertheless, I find the balance of considerations of the seriousness of her allegations against the accused, weighed against her reluctance to report more than that he touched her with the affection of an uncle, in that environment of safety and reassurance is not, standing alone, evidence persuasive of an inference consistent with the truth that her allegations that are the subjects of Counts 1 – 6 had occurred. With a very nurturing and supportive opportunity to do so, she did not report any conduct of the accused of a sexually indecent nature. She cogently denied it.

21. Obviously, SR’s complaints made to police and maintained in oral evidence, being the incidents the subject of Counts 1 – 6 and the context “first” event, are opposite what she told her mother JR and her very close and trusted aunty, LM, in 2018.

22. In November 2019, during her hospitalisation and at about the time of JR’s death, there was “an incident” involving the accused at the hospital. The next day LM was telling SR about the incident and SR said that “something” was going to come out that people were not going to like. That “something” was not better described in the evidence, nor was the “incident” described. LM said that when she asked SR whether the something that was going to come out was related to what they had talked about in 2018, SR replied, as she had in 2018, that the accused had done nothing wrong that SR knew of (T161.10). SR was 14 years of age.

23. This was the second occasion on which SR, given opportunity and encouragement to complain by her trusted Aunt, who she knew would protect her, denied that the accused did bad things as SR says he did in these proceedings.

24. Less than 4 months later, on 1 March 2020, she provided her electronically recorded interview to police (Exhibit A). Again, obviously, SR’s JIRT interview complaints to police are opposite what she told LM in November 2019.

25. Between JR’s death on 5 November 2019 and CB making her complaint to LM sometime between Christmas 2019 and Australia Day 2020, LM continued to permit CB to stay over at DW’s house, where the accused continues to live.

26. When SR was asked what made her be able to speak out about what had happened (JIRT Exhibit A) one of the answers she gave was:

“I just don’t want to see him every day being proud and happy and having a good life, when he has made heaps of people unhappy.”

27. Another answer she gave, to which these reasons will come is that after hearing of CB’s complaint, SR made the complaints the subject of Counts 1 to 6 to support CB.

28. When SR visits the accused’s home, which is almost every day after school because she goes there to rendezvous with her siblings (it is closer to the school than her home), if DW and the other members of the household are out having left the accused alone inside, until her brother and sister arrive from school, SR sits out the front on a chair and waits. If they take too long she walks to her aunty LM’s house which is, “down the street”. She said that she knows that the accused won’t “do anything” in front of her sister. She described her sister as her “safety”.

29. SR said that she has never spoken to the accused about the allegations. She said that the whole time she doesn’t even acknowledge that he is present. When he tries to talk to her she just ignores him completely.

30. When the police officer asked if there was anything else that SR could think of, she answered:

“…After my mum past away I felt really mad at myself, because I regretted not telling her, because I knew that she would do something like this and make me talk about it, because she was very protective, of us kids…And [LM] told her mum, um, that [the accused] had done these things to me and [CB], that’s, I don’t think she knows about [ABR]. But she [LM] messages [the accused] and tells [the accused], I am going to tell everyone what you did and stuff, threatening him, and talks behind his back about him, because she thinks that it is not right that he’s still just living his normal life…And nothing is being done about it…and [LM] tells me that she is glad that she doesn’t stop doing that” because she is the only one doing something about it, “just trying to scare him.”

31. SR said that if the accused is “not scared then he will do it again.”

32. SR said and evidence of her sister ABR confirms that the accused had not conducted himself inappropriately toward ABR.

33. In cross-examination SR agreed that from her Year 7 school education (2018), when she was 13 years of age, she knew that she should report sexual misconduct. Whilst I accept her subjective fear of her family’s reaction; SR agreed that she was aware that if she spoke of it, her family and the accused’s family would have investigated it and that she knew that they would have protected her about it. During re-examination she was asked what she meant by the accused being “favourited” (T95.35), she answered: “They like, were always there for him.” When she gave that answer I was concerned for the possibility that she might hold a deep regret for what she feels has been an inequality in the treatment of herself and the accused within the very close greater family of these related adults and children who were very much occupied with each other almost daily within “her Nan”, DW’s house.

34. When I heard this evidence, I was impressed by the level of grievance or resentment displayed by SR. Whilst such emotion might understandably arise from a history of sexual assault inflicted upon her by the accused, it caused me concern for the possibility that there might be ill-sentiment born by SR against the accused arising from her resentment of favouritism shown to him by her family.

35. SR’s evidence, above quoted, disclosed that LM wants to inflict punishment on the accused. This no doubt arises from LM’s belief that he assaulted her daughter CB but SR spoke of what LM was doing, as if she approved of it.

31. SR frankly answered in cross-examination (T94.45) that she had brought the allegations to police because she was worried about CB and wanted to support her, after having spoken to LM and CB before going to the police interview. She expressed her guilt that had she told her mother JR, CB might not have experienced the events the subject of her complaints. Nevertheless, she insisted that the sexual assaults occurred. The accused points to SR’s want to give evidence to support CB as a motivation to lie.

INDICTMENT AND EVENTS - SR

37. SR was born on 28 September 2005. In her JIRT (Exhibit A) she described 8 events of which 6 are the subject of Counts 1 – 6 in the Indictment.

38. SR described a “first” event in time upon which the Crown relies as context evidence. The Crown does not rely on the evidence of the first event as evidence of propensity or tendency in relation to the incidents the subject of the Counts.

39. In the JIRT, SR said that she thought she was three years of age at the time, sitting on a two seater lounge in the lounge room watching TV when the accused touched her vagina, and got on top of her. She said that she was young and “I just don’t remember anything” but when the police officer asked her to explain in a bit more detail the touching, she answered that she “sort of” remembered “like, he just, he put his hand over, in between my legs, and just, like, like, rubbed.” She said that the contact was on the outside of her clothing. When the police officer asked that she explain a bit more his getting on top of her, she answered: “he told me to lay down” so she did and “he just, like, got up and got on top of me.” When the police officer asked what he did when he got on top of her, SR then answered “he went up and down”. When the police officer asked what else happened, she answered “I don’t remember”. She was unable to remember whether anything was said to her by the accused. She said that first event happened at her “Pop’s” house at Warwick farm.

40. When I heard this evidence I was concerned that SR went from saying that she could not remember anything, to then give detail of the even which was expansive for the memory of someone who was 3 years of age at the time,12 years beforehand. This including recalling that the accused told her to lie down. In none of the specific acts that are the subject of the Counts, is it alleged that the accused’s physical assault included vaginal rubbing.

41. SR turned three years of age on the 28^th of September 2008. The reliable evidence from the Officer In Charge, Detective Sergeant Frost, from police searches of records of public housing, is that DW moved with her children, into DW’s house on 2 November 2009. DW’s house is not in Warwick Farm. DW and WW gave not inconsistent evidence with that timing. WW said that he and DW separated in 2006/2007 and that DW originally moved out of their Warwick Farm house in July 2009. WW said that the accused was not living with the family at the Warwick Farm house but was in foster care until the age of 16. The accused’s 16^th birthday was on 17 March 2008. Whilst 16 years of age he lived with WW at Warwick Farm for about 7 or 8 months before moving to DW’s house when DW, JW, AW and EW were not living there. Those chronological goal posts indicate a limited window of time for the context event, alleged by SR to have occurred when she and the accused were at WW’s house at Warwick Farm when she was 3 years of age.

42. SR gave evidence of watching the accused play the video game Grand Theft Auto at the age of 3. The clear evidence of WW was that there was no video game playing or even a video game playing device in the house.

43. SR said that the accused’s inappropriate behaviour toward her wholly occurred between her ages of 3 years and being 10 years. She plainly described it as ongoing. She said the accused’s “sexual abuse” of her was:

“On and on, like always, every time I’d be in a room with him it would happen. Like, I’d go in and just want to watch TV or play a video game with him, so I’d sit on the lounge and then he’d just touch me, get on top of me, whisper to me.”

44. I consider this description of the accused’s conduct, to be significant. In response to the police officer’s invitation that she describe specific events, she described 8 events. The first of those was the context event just discussed. The 5^th event involved the accused whispering that he loved her whilst she and her siblings were playing a TV video game at her home and he was watching them play and acting as a time keeper. What she found inappropriate on that occasion was his whispering that he loved her. Her siblings were present, arguing about playing the game.

45. SR’s evidence describes her complaint of frequent, almost constant, conduct of the accused which she found and continues to consider gross and disgusting sexual abuse. She was during the JIRT and during her oral evidence remains, unable to reliably identify when the incidents the subjects of the Counts occurred. She agreed during cross-examination that they were incidents among a great number of events of what she considers to be the accused’s sexual abuse conduct.

46. I remain mindful of the matters to which I have made reference of her want to support CB; and possible resentment of his favouritism, and her want to stop the accused living the “good life” as well as her view that he has caused sadness to others, as thoughts which might risk her giving exaggerated accounts of the incidents or, recount of those incidents according to her interpretation of his conduct, coloured as it might be, by those thoughts.

47. Separately, the evidence of DW’s well-populated house, given the size of DW’s family, SR’s family and LM’s family, the frequency of visitation of cousins and friends, SR’s evidence of her speaking to her mother JR and aunty LM in 2018 and of speaking to her aunty LM again in 2019, and their having been unaware of the accused’s alleged conduct infers that none of those other people considered that which they observed of the accused’s conduct to be sexually abusive of prepubescent females. A background circumstance for this was his very low intellectual functioning being known to them.

COUNT 1

48. Between 28 September 2009 and 27 September 2012 at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years, at the time of such assault did commit an act of indecency on SR: s 61M(2) Crimes Act 1900 (NSW).

49. The specific act upon which the Crown relies is- at Bidwill that the accused lay on top of SR and moved up and down in her aunty’s room.

50. In the JIRT, SR said that the next event after the event at “Pop’s” house at Warwick Farm occurred at her Nan, DW’s house. SR said that she was 4 years of age. This would place the incident in the year following 28 September 2009.

51. The event and specific allegation was described by her as occurring when the accused was piggybacking her in a game. She had seen him playing with her sister and after she asked if he would give her a turn, she got on his back and he took her up the stairs into the bedroom her aunties JW and EW usually occupied. He then laid her on the bed and “started, like, moving on top of me.” She said the specific act lasted for about 10 seconds. Both SR and the accused were wearing clothes. The accused told her that it was their secret and not to tell anybody. He then took her downstairs and SR did not want to be piggybacked anymore. She did not tell anyone.

52. SR’s evidence of asking the accused to give her a turn and playing piggyback with him is contrary to her evidence that she wouldn’t play any games with him if she had the choice (T63.48). That answer followed immediately her evidence that the accused had done “bad things” to her for as long as her memory could go back (T63.29). Her evidence immediately following that answer was that when she said she had played the video game Grand Theft Auto with him, that was when she was 3 (which participation she later clarified to have been watching) and that she never played GTA with the accused again (T64.40).

53. SR described the accused moving up and down when on top of her in the Context and Count 2 events. She did not describe the up and down movement in relation to Count 1. A similarity is that whereas in Count 1 she said she was taken by the accused into the bedroom of EW and JW, in Count 2 she said she was taken by the accused into the bedroom of AW.

54. The Count 1, specific act is therefore, laying on top of her for 10 seconds whilst moving. There is no more detailed evidence of what the accused was doing. There is no evidence of any sexual reaction of his body parts. Specifically, there is no evidence that the accused’s movement was up and down as described by the Crown in its identification of the specific act relied upon for Count 1.

COUNT 2

55. In the same period as relied upon the Crown for Count 1, between 28 September 2009 and 27 September 2012, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years of age, and at the time of such assault did commit an act of indecency on SR: s 61M(2) Crimes Act 1900 (NSW)

56. After she described the second event, the subject of Count 1, the police officer asked her of the next time she can remember. SR responded, “I remember, I’m not sure when, or what, like, how old I was or anything, but the next time I remember was…”

57. The specific act upon which the Crown relies is – at Bidwill that the accused lay on top of SR and moved up and down in her uncle’s room.

58. She said that whilst at her Nan, DW’s, house she went to the bathroom at night time and when walking past her Uncle AW’s bedroom door, the accused opened the door and pulled her in. She said that the light was on. She said that there were people there but that “I don’t remember seeing their faces”. It was a normal size bedroom with a bed.

59. She said that she did not know if one was her uncle AW but that there were two people other than the accused in the room. In cross examination SR said that she was not sure but that the two people in the room may have been her Uncle AW and his friend Jonah. Jonah was frequently in attendance at the house when she was there.

60. In the JIRT she described the incident as the accused laid her on the floor “like, in front of them” and he just got on top of her “again and he went up and down, did movements” for 10 seconds. She said that she was facing the “roof”. When asked by the police officer what then happened, she said “I remember getting up and going out of the room” and when asked if anything else happened, she said no.

61. When the police officer asked what SR could remember of what it looked like in the room, she answered: “so I didn’t see anything in the room, I just saw, like, shadows on the wall.” When the police officer asked what made her aware that there were at least two people in addition to the accused in the room, she answered that it was because she heard people talking and laughing but she did not know what they were saying. She did not remember where the other people were situated in the room and she told the police officer that she could not remember who they were. When the police officer asked whether they were members of her family or other people, SR answered that she was not sure… “But I’m pretty sure [AW] had Jonah over at the time, like, when they were younger.” She said Jonah was a friend of both her uncle AW and her brother AR. AR is two years older and AW is five years older than SR. She could not remember “definitely” whether or not Jonah was there.

62. She did not tell anyone. She just went downstairs and acted normal because “I thought that was normal”.

63. When the police officer asked if the accused had said anything to her, SR said that he whispered “I love you” and “this is our little secret, don’t tell nobody”.. This was said, “During him moving”. SR said that she was not sure whether the accused did anything with his body parts or his clothing.

64. In cross-examination SR confirmed that the light was on in AW’s bedroom and when asked what it was that made it difficult for her to know whether or not AW was there she answered that it was because she was in shock of the accused being on top of her (T52.04). Her evidence that Jonah was present, was based on assumption, he being AW’s friend who was so frequently at the house. She conceded that she did not recognise Jonah at the time (T52.35). She further conceded that she couldn’t really say whether Jonah was there at all (T52.44) and that she wasn’t sure whether AW was there in the room at all (T53.15).

65. SR conceded that she had told another person that her “eyes just went dark” so she couldn’t see (T53.30) and when asked how she knew the light was on, she answered she saw it when she was pulled into the room. She said she was laying on her back on the floor. When she was asked, in those circumstances, “how did you know it was [the accused]?”, she answered “Because had previously been doing that.”(T53.45). If “doing that” included reference to saying “I love you”; SR did not say so. She was not challenged as to how she knew the accused had pulled her into the room.

66. The accused makes the not unreasonable argument that the accused saying that he loved her, that his laying on top of her and moving up and down was their secret, and that SR was not to tell anyone, is “unlikely” if in the immediate presence of the other 2 familiar persons.

67. In association with her inability to otherwise describe her recognition of the person on top of her as the accused, or AW or Jonah, the evidence makes it, in my opinion, hard to accept that SR has a reliable memory and gave credible evidence of the alleged Count 2 event. Whilst ABR said that SR had told her that her eyes went dark; SR’s evidence of being in front of the other persons when she was on the floor and of seeing shadows is not consistent with such a blind unawareness. Whilst the evidence did not go to it, common sense forces difficulty with accepting that without sight SR could have found the door knob, or the doorway to manoeuvre out of the room. Common sense forces difficulty with accepting that SR could not recognise the voices of persons so familiar to her.

68. The incident described alleges the accused, who she did not recognise during the specific act, laying on top of her and moving up and down for 10 seconds without her noticing anything about him doing, or any part of his body doing anything else. There is no evidence of any sexual reaction of the body of the person laying and moving on top of her. The specific act, again, was for only 10 seconds before she just got up and left.

69. There is no evidence explaining why the two familiar people, who she believes were her Uncle AW and Jonah did not do or say anything or otherwise react to what the Crown charges was an indecent sexual assault being committed in front of them.

70. On the whole of SR’s evidence of the Count 2 I am not persuaded beyond reasonable doubt, that SR gave reliable evidence based on a real memory of the Count 2 allegation.

COUNT 3

71. Between 28 September 2012 and 27 September 2014, at Bidwill in the State of New South Wales, did commit an act of indecency towards SR a person then under the age of 10 years, namely, between the ages of 7 and 9 years of age: s61O(2) Crimes Act 1900 (NSW).

72. The specific act upon which the Crown relies is – at Bidwill the accused masturbated in the presence of the complainant when she was under the age of 10 years.

73. In the JIRT when the police officer asked, when was the next incident that SR could remember after the Count 2 incident (which is the fourth event described), SR answered that it was when she felt sick at school. When asked how old she thought she then was, she answered “around eight, or seven”. She said that she was attending the local public school (name of school not published), but in cross examination she explained that she attended both primary and secondary education there. She was unable to tell the police officer which grade at school she was attending at the time.

74. SR said that it might have been her teacher Ms Farah who gave her the note to go to the sick bay office at school. When she said it might have been Ms Farah, SR was plainly searching her memory, paused before responding with her unsure answer. She said that she had a sore belly. She was not sure of the time but said that she thought it might have been around 11 AM to noon when her Great Aunty KW who had picked her up from school, delivered her to her Nan, DW’s, house and left her there alone with the accused. During cross examination she said that it was some time after school started but did not know that time.

75. Exhibit G is a collection of [her local public school] sickbay referral notes relating to SR, in the year 2014. She was in Year 3. Exhibit H is a collection of [her local public school] class rolls recording SR’s attendances, part attendances, sick days, leave days, and late attendances during 2014 only. Ms Macky, the present School Principal, gave oral evidence assisting with interpretation of the entries in the roll call and sick bay referral notes. She was not at the school in 2014. Exhibit G contains several entries of SR being referred to sickbay, 2 of which record for a sore belly or sore tummy. Neither of these record that she was collected and taken from school. An entry dated 21 November 2014 records that SR was sick but does not describe the nature of the ailment. Ms O’Grady who was a member of the administrative staff and not a teacher, signed the form. She also signed the morning roll call sheet in Exhibit H for the day. There is no writing of Ms Farah’s or reference to Ms Farah on the note. The sick bay referral note records that at 10:30 SR’s mother was to collect her “but will be 30 min”.

76. In closing the Crown did not refer to this evidence but the accused did. The 21 November 2014 sick bay referral note is not consistent with SR’s evidence concerning Count 3. Read with the Exhibit H roll call for that day, it does not record that her teacher Ms Farah participated in either the morning roll call or the sickbay referral. SR’s evidence is that her mother could not be contacted because she was at Bingo, whereas the note strongly infers, that her mother was contacted and had told the school that she would collect her, but would be 30 minutes. The entry makes no mention of Great Aunty KW picking her up. On 21 November 2014, SR was 9 years of age, whereas in her JIRT evidence, she answered that she was around 7 or 8 years of age.

77. SR turned 9 years of age on 28 September 2014. Exhibits G and H, as explained by Ms Macky, contain objective evidence positive of the inference that the event described by SR as the subject of Count 3 did not occur during 2014, including most of her age 8 and part of her age 9 schooling.

78. An essential element of Count 3, an offence under s 61O(2) is that SR was under 10 years of age at the time of the specific act relied upon by the Crown..

79. During cross-examination, SR confirmed her evidence that she was upset, crying and begged her Great Aunty KW not to leave her at DW’s home. She said that she did pretty much everything she could to get her Great Aunty KW to not leave her including speaking words to the effect of “don’t leave me, don’t leave me”, but her Great Aunty did leave her alone with the accused because she had to attend her animals at home.

80. Great Aunty KW was not called in evidence. Detective Sergeant Frost, the Officer in Charge, said that, to the best of his understanding of the police file, police had not pursued inquiries with Great Aunty KW.

81. Of the subject incident, SR said that after Great Aunty KW left, SR sat across the room, as far as she could from the accused, at the dining table, near the back window. She said that she cried but she did not let him hear her crying. She said the accused “pulled out his penis” and “he told me to go over there. He kept trying to get me to go over there, but I didn’t want to make eye contact with him, I didn’t want him to know that I was, like, scared… Then he just started wanking… I was crying and I didn’t know what to do. And then he, he kept trying to get me to go over there, telling me that he loved me, and then my mum got back from bingo, and then he ran into the kitchen and washed his hands.” She described the accused’s position as sitting in the middle of the lounge, about 4 m away. She could see everything. She described “there was quite stuff” in relation to the accused’s penis. She also said that the accused spoke words like: “come over here, look at this, come and touch it”.

71. SR did not tell anyone.

72. SR’s evidence of the specific act the subject of Count 3 describes conduct of the accused which is very different to the conduct described in any of the other 7 Counts. Those differences are:

1. Her description of his “wanking” and of “white stuff” inferring ejaculation, is the only evidence of physical signs of the accused being sexually aroused and specifically of his penis being aroused in the whole of the evidence of the trial; and

2. His alleged spoken invitation that SR go over to him and inviting her to touch his penis, is the only evidence in the whole of the evidence in the trial of the accused inviting or encouraging participation by the complainant or any other person in the conduct complained of.

84. SR’s evidence is, and I come to it in more detail later in these reasons, that LM told SR that CB had informed LM of the accused asking CB to masturbate him (SR JIRT Exhibit A – MFI 7 transcript 326 is accurate). However, in the trial there is no evidence that CB touched, or was invited by the accused to touch, his penis.

85. Personal sexual gratification is not an element of Count 3 or of any other Count. I am referring only to the description of the act alleged to have been performed by the accused and its connotation for the purposes of later consideration of the essential element to the Count of indecency. I did the same in relation to Counts 1 and 2.

86. As I heard SR’s evidence of the Count 3 allegation, I was concerned that the unlikely surrounding circumstance of Great Aunty KW leaving a begging child, SR’s inability to place the allegation of the specific act in time or circumstance, the description of highly aroused sexual act not found elsewhere in the whole of the evidence and the risk that her memory and evidence might have its essence in LM’s allegation of the accused’s conduct with CB; give rise to a real possibility that she was not giving credible evidence of a reliable memory.

87. The fifth event of which SR gave evidence by JIRT was described by her following the question by the police officer “what about the next one?” This event is not the subject of a Count. This event is not relied on by the Crown as either context evidence or tendency evidence.

88. SR said that at her home, on an evening when her mother and stepfather SB had gone out to a club, the accused “was watching us” and she and her sister ABR (2 years younger than SR) and her brother AR (2 years older than SR) were playing the video game “GTA” (Grand Theft Auto) on the PlayStation 2. In cross examination SR said that they were at her house not DW’s house. The accused was behind SR and her sister. He was setting the timers for the game. SR was standing. She said the accused was whispering “like, across the room that he loved me and I didn’t like it”. She said that she didn’t want to go anywhere so she just stayed there “so he couldn’t do anything. I just let him whisper.” SR said that ABR and AR were present when the accused was whispering. They were sitting on the lounge arguing about who was playing the game.

89. The police officer introduced the word “babysat”, when asking SR about what time the accused was, to use SR’s words “watching us”. She answered that it was for over two hours.

90. When the police officer asked whether or not SR could remember how old she was or what grade of school she was in, she responded “ Uh, I could have been seven or eight “. SR did not say which grade of school she was in.

91. In some of her answers, SR adopted the police officer introduced description of the accused “babysitting”. The evidence of the whole trial is strongly that he is a person of such serious intellectual deficit that the practice was to assign babysitting to EW, or DW when at DW’s house, and to some extent JW. On the whole of the evidence I am not satisfied that on any occasion, including at DW’s house or at SR’s home, the accused was in a position of authority over or of responsibility for SR or CB or other children.

92. That SR included the accused whispering to her that he loved her amongst the selection of 8 events she described to the police officer in the JIRT is an indication of her disgust with the accused’s conduct even when it did not involve physical contact. That she was so repulsed by it to report it to the police officer when she was not even alone with the accused in the room at the time, demonstrates her evaluation of what level of the accused’s conduct, in the context of all of his conduct, was seriously inappropriate and disgusting to her.

TIMING

93. During cross-examination of SR concerning this 5^th event identified by her as the event next following Count 3, she conceded that she is not able to say with confidence when any sexual assaults upon her by the accused happened. SR maintained that she had been sexually assaulted by the accused for as long as she could remember. The first event identified in the JIRT, she said, occurred at about the age of 3 years. In cross-examination (T62-63) she said that she could not recall what age she was, but at some point when she was very young she remembered what happened (T63.35). SR said that she could not remember the first time because she was so young but she could remember it “like happening”.

94. That uncharged first context event, she said occurred when she sat on the lounge and the accused touched her, got on top of her and whispered to her. She told the police officer that between the ages of 3 and 10 that she was sexually assaulted “over 10 times” and in answer to another question, she said between 10 and 20 times. As already observed, she also said that the sexual assaults happened whenever she was in a room with the accused. She thought the first event occurred when she was 3 because she “sort of” remembered going to the lounge room where the accused was watching TV. She also said of that first time “but I don’t remember anything at all, because I was so young”. Nevertheless, in response to the police officer’s questions seeking detail she gave an account of her being rubbed on the outside of her clothes at her vagina and the accused getting on top of her and moving up and down. In the end and as already observed, despite her statement of no memory of it, SR gave at least as much detail of that first, uncharged event, as she did of the incidents the subject of the Counts, with perhaps the exception of Count 3. When asked when the most recent sexual assault event occurred, SR said that she remembered being 10. But her other evidence concedes that she does not have a recollection of her age when the offences, she alleges, occurred.

95. Her evidence of that “most recent” event is relied upon by the Crown for Count 6.

96. During cross-examination concerning the uncharged 5^th event, SR maintained that the accused did sexual things to her a lot over a long period and explained that that is a reason why she finds it very difficult to say, “just when things happened” (T59.20). In oral evidence, at T59.34-41, she said of all events recounted in her JIRT:

“Q: When you talked about how old you were when something happened, you’d sometime say “I was around a certain age” or something, kind of, approximate? Is that fair?

A: Yes

Q: Is that because you are not really able to say with confidence just when something happened or how old you may have been?

A: Yes”

At T60.01-07 she gave the following evidence:

“Q: Is it the case that you could only really say when something happened in a pretty approximate or general way?

A. Yes.

Q. By that I mean you might have been older or you might have been younger, but you can't say for sure just when it happened: is that fair?

A. Yes”

97. SR answered that because of the similarity between the bad things that the accused did to her over the years it is a lot harder for her to say when something happened. As already observed, at T61.09 she said that DW moved from Warwick Farm to Bidwill in 2013. In that the year she turned 8 years of age, but the evidence of DW, WW and Detective Sergeant Frost, the Officer In Charge, is that DW moved from Warwick Farm into DW’s house on 2 November 2009, when she was just 4 years of age.

98. Ultimately, SR conceded that she does not know in what order the charged events she described in the JIRT or the other uncharged but similar to the charged offences experienced by her happened. Her evidence at T72.26 to 36 was:

“Q. And Ma'am, the question that I would like to ask you is when you say, "Um, there was a time", what you are doing is you are describing an event, but you don't know what order in time these events fit into: correct?

A. Yes.

Q. And that's why when you were asked, "Right, what about the next one," you say, "Um, there was a time," because you're speaking about an event but you don't know what order that has in the events, the other bad things you've talked about, or when it happened?

A. Yes.”

And at T88.05-11

“Q. Ma'am, when you gave your record of interview to the police; do you agree that you indicated that the particular events that you spoke to them about had happened on other occasions as well?

A. Yes.

Q. Is it the case that you tell his Honour that the same things happened on other occasions, but you're not sure when?

A. Yes.”

99. As I heard this evidence, it was plain to me that SR said that she does not know the chronological order of the 8 events of which she spoke of in the JIRT, 6 of which are subject of the Counts and she did not know the period in which the events fit. Her evidence is of continuing events she strongly describes as gross, disgusting and inappropriate sexual conduct, to have commenced when living at Warwick Farm when she was 3 and then at DW’s house to have continued. When the police officer during the JIRT asked her about the next incident and she commenced to describe Count 3, described something she said occurred when she was 10 years of age. But she does not give reliable evidence of her age. At one point SR agreed that did not know when it occurred (T78.40).

100. The evidence of SR, considered with the whole of the evidence in the trial does not satisfy me beyond reasonable doubt that the alleged specific act the subject of Count 3 occurred when SR was under 10 years of age.

COUNT 4

101. Between 28 September 2013 and 27 September 2015, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 8 and 10 years of age, and at the time of such assault did commit an act of indecency on the said SR: s61M (2) Crimes Act 1900 (NSW).

102. The specific act upon which the Crown relies is – at Bidwill squeezed SR’s bottom on the outside of her clothing.

103. This is the sixth event described by SR in the JIRT. When the police officer asked “what’s the next thing you remember?” SR said that it occurred when she was sleeping on the lounge with her Aunty JW at DW’s house. She said she was eight or nine years of age. She was laying on her Aunty JW’s belly, who was asleep on the lounge. SR woke up during the night and the accused was “like, watching TV, and he noticed that I was awake and he touched my bum. UM, he was watching WWE”. SR said that she was facing down to Auntie JW’s face. SR was clothed. She first said that the accused just touched her backside. She twice demonstrated his touch with an open hand, palm down. When the police officer pursued more details of how the accused moved his hand, she described the accused’s touch of her “arse” with the words: “like, he would, like, move his hand around and, like, squeeze. When the police officer asked if the accused said anything, SR answered that he told her that he loved her and that it was their little secret.

104. This description of active hand movement by the accused preceded with “like, he would, like” which speech does not describe an actual recollection of that happening on that occasion, is also inconsistent with her demonstration. The event, whatever it was, was insufficient to wake JW or to cause SR to leave and sleep upstairs.

105. SR said that she went back to sleep because she was too scared to get up.

106. I would not be satisfied beyond reasonable doubt that the specific act alleged involved more than the accused placing his flat palmed hand on SR’s buttocks area and telling her that he loved her, if it occurred.

COUNT 5

107. Between 28 September 2013 and 27 September 2015, at Bidwill in the State of New South Wales, did assault SR a person under the age of 16 years, namely, between the ages of 8 and 10 years of age, and at the time of such assault did commit an act of indecency on the said SR: s61M(2) Crimes Act 1900 (NSW).

108. The specific act upon which the Crown relies is - at Bidwill the accused touched the vagina of SR on the outside of her clothing.

109. SR’s description of this seventh event in the JIRT followed the police officer asking “what about the next one?”. SR said that on an occasion when her Auntie EW had her friend Jade at DW’s house, the accused, EW, Jade and SR’s brother AR were watching TV at night. EW and Jade went upstairs leaving SR, AR and the accused sitting on the lounge. SR gave her opinion that they went upstairs because the accused was staring at Jade. The accused’s staring is described in the evidence of CB as attributable to his intellectual deficit. He stares straight at people. CB said that at sometime she came to realise that he was not really staring at her, when she thought he was; but past her. CB described the accused’s staring was “weird”.

110. SR told AR that she was going upstairs. She did this because she was scared. She said that the only way for her to go upstairs was to walk past the accused. As she walked past him he put his hand out and touched in the middle of her legs and when she felt this she ran upstairs. When the police officer asked whereabouts in the middle of her legs, SR answered “um, my vagina” and confirmed that she meant that the accused touched her vagina outside her clothing. AR remained on the lounge and was within view of the incident.

111. The specific act described is the accused’s hand reaching out as SR was in motion, walking past and momentarily touching between her legs at her vagina whilst in full view of her immediately nearby brother AR.

112. To further questioning from the police officer, she said that the accused did not say anything. When asked how old she thought she was, she answered “um, eight or nine.” (Exhibit A, MFI 7 Q259)

113. At this point, in her evidence SR gave further evidence of the 2018 complaint event involving her mother, JR, and trusted aunty LM, CB’s mother, to which I have made reference. SR told the police officer, that when she told “him”, she was referring to her brother AR. They made an agreement that SR would tell their mother, JR. In the JIRT she said that on her way to tell her mother upstairs, she told AR that she did not want to and that she was scared but he encouraged her. She whispered in her mother’s ear to come downstairs and then whispered into her mother’s ear that the accused had “touched me”. She said that her mother was in shock and asked “What? What did you say?” When she repeated that the accused had touched her, her mother asked her what she meant by “touch”.

114. SR then said that she was regretful and said “Don’t worry” because she was scared that her mother would “hate me or something”. SR said that later that night, LM came to the house and up to the bedroom and asked SR if anything had happened between SR and the accused. LM told her that she had to speak up:

“So you have to tell us if something did happen”.

115. As already mentioned in these reasons, SR answered “No, nothing happened, all he was doing was being an uncle, giving us a kiss on the cheek, giving us hugs.”

116. The police officer then asked when this conversation occurred. SR answered “Um, when were about 10, 11?” The officer then repeated “You were 10 or 11?” to which SR answered in the affirmative. SR then said that her brother AR was 12 and the officer then put “12 or 13?” to which SR agreed. This evidence is inconsistent with SR’s answer to the police officer that she was 8 or 9 years of age and her answers that the last event happened when she was 10 years of age. Count 6 is identified by her in the JIRT as following this Count 5 incident. SR was 15 years of age at the time of the JIRT. The range of her ages that she gave for the Count 5 event were between 8 and 11 years of age.

117. In mid-2018 SR was 12 years of age. She turned 8 years of age on the 28^th of September 2013. Therefore the age range to dates she gave was after 28 September 2013 and before her 12^th birthday on the 28^th of September 2017.

COUNT 6

118. Between 28 September 2015 and 27 September 2016, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, 10 years of age, and at the time of such assault did commit an act of indecency on the said SR: s 61M(2) Crimes Act 1900 (NSW).

119. The specific act upon which the Crown relies is – at Bidwill, the accused touched SR in the vicinity of her (Crown Case amended see MFI 4 and MFI 11) vagina on the outside of her clothing.

120. It follows from the discussion of Count 5, plainly this Count 6 incident did not occur when SR was 10 years of age.

121. Whilst this is the eighth event described by SR in the JIRT, she spoke of it early in the recorded interview when asked to talk about the most recent event. She said that she went to the bathroom when she, her brother AR and sister ABR were playing hide and go seek. The accused was watching them play. They were hiding downstairs. SR said that she went to the bathroom which was upstairs. Whilst in the bathroom she heard a knock on the toilet door. She did not know who knocked but she was scared that it was the accused. When she exited the bathroom, the accused was sitting on the stair and when she went to walk past him, “he tried to touch my vagina. And I hit his hand away and I threatened him and I said, I’m gunna tell on you, and that was the last time that he did it to me.”

122. She did not tell anyone.

123. There is no evidence that the accused did touch SR during this event. There is no more detailed description of what the accused did from which SR says she perceived he “tried” to touch her in the location of her vagina. At the conclusion of the interview concerning this event, SR told the police officer that there were “no other times”, meaning events.

124. In closing the Crown argued that the Crown does not need to prove a separate assault if the act of indecency was committed upon SR. The Crown’s proposed element sheet (MFI 4 and MFI 11), particularises that assault is an essential element of the offence. If the Crown intended by closing arguments to put that the act of reaching and SR’s perception that the accused was attempting to touch her vagina was an “assault”; then plainly assault does not necessarily involve physical contact with the person assaulted. Such physical contact, if it occurs, is an element of the assault: The Queen v Phillips (1971) 45 ALJR 467 per Barwick CJ at 472. However, in order for the accused to have assaulted SR, her interpretation that he was trying to touch her vagina when he reached must, beyond reasonable doubt, have been a fear based on reasonable grounds that she was in that danger. In the absence of evidence of the manner of his reaching toward her and of a detailed description of that reaching, the evidence does not satisfy me beyond reasonable doubt of a menacing fashion of reach by which SR reasonably apprehended that the accused tried to touch her in that location. There is not for incidence, evidence of measure of the proximity of his hand to the location of her vagina, nor even of proximity to her body. The evidence does not satisfy me beyond reasonable doubt that the accused intentionally, or recklessly, caused SR to apprehend that he was trying to touch her vagina.

125. In these observations I do bear in mind my earlier expressed caution when considering the evidence of SR characterising or interpreting an act of the accused. I have referred to her resentment of his favouritism and to the risk of her giving exaggerated accounts of incidents and interpretation of his conduct. These concerns are advanced in further consideration of the complaint evidence, later in these reasons. SR’s interpretation that he tried to touch her vagina is evidence in which I find to be of insufficient persuasion to satisfy the standard of beyond reasonable doubt proof of the assault alleged. Nor am I satisfied beyond reasonable doubt on the evidence that the accused’s conduct when reaching was intentional or reckless and that he realised SR might fear that she would be subject to the unlawful touching suggested and nonetheless went on and took that risk.

INDICTMENT AND EVENTS - CB

126. CB gave evidence in chief by JIRT (Exhibit B) and short oral evidence. She was cross-examined. CB was born on 13 February 2010. She was just 10 years of age on 1 March 2020 when her JIRT interview with police was recorded and 11 years of age when she gave oral evidence.

127. CB was a composed witness who gave her evidence in a calm manner. Her demeanour and the answers she gave including concessions she made during the JIRT and in oral examination, showed her, in my assessment, to be a witness attempting to give accurate evidence.

128. CB was able to temporally locate the Count 8 incident as having occurred well after the preceding Christmas but before her 10^th birthday. That birthday was her temporal post. This evidence well matched the recollection of CB’s complaint to her mother LM, the next day. LM placed that complaint as between Christmas and Australia Day 2020. CB’s answers in cross-examination that the incident the subject of Count 8 could have occurred in any of January, February or March when considered with all of her evidence and the evidence of LM does not leave me with a reasonable doubt as to the timing of the event. This is significant because an essential element of Count 8, under section 66DC(a) Crimes Act 1900 (NSW) which the Crown must prove beyond reasonable doubt, is that the offence occurred when CB was under the age of 10 years. Her 10^th birthday was on the 13^th of February 2020. CB’s JIRT occurred less than 3 weeks after her 10^th birthday. Her recent event memory, of which she told the police officer she was confident, was with her. I am satisfied beyond reasonable doubt that CB was 9 at the time of the incident the subject of Count 8. The incident occurred a few weeks before she achieved the age of 10 years.

129. CB gave imprecise evidence of when the Count 7 event occurred. She was not sure of her then age but estimated it at 5 or 6. That would be 4 or 6 years before her JIRT. She thought she might have been in school grades 2, 3 or 4 and then refined that range to grades 2 or 3.

130. I was surprised that when the police officer, during the JIRT, asked her, after reference to the accused being her uncle and after saying his first name (omitted here), CB was unable to tell the police officer, the accused’s family name. The exchange was:

“Police Officer: Yeah. Okay. So do you know your uncle’s [the accused’s first name stated] last name?

Answer: Um, [the accused’s first name stated], wait it’s, um, I only knew him by, like…

Police Officer: It’s okay if you can’t remember.

CB: No, I can’t remember.”

131. The circumstances being that CB was 10 years of age at the time of the JIRT, a very frequent visitor in DW’s home, including sleepovers, in an environment of what was described by her mother LM as a “close unit” between the families and the accused being within DW’s house virtually all of the time because he didn’t go out; her inability for her to recall his family name which was the same surname as the other occupants of the house and her “Nan” DW, occurred to me to portray CB to possess not more than a modest intellectual ability for a 10 year old. I gained the same impression from her inability to recall the year of her birth, when speaking of her very recent 13 February 2020, 10^th birthday.

132. None of these observations discount my earlier stated assessment that CB was a truthful witness who tried to provide accurate answers to questions asked of her. Her JIRT was conducted by a Child Sexual Abuse specialist police officer in the appropriately relaxed and informal environment. Her oral Court testimony including cross-examination was conducted in an appropriate, non-intimidatory manner.

COUNT 7

133. Between 13 February 2017 and 12 February 2020 at Bidwell in the State of NSW, did assault CB a person then under the age of 16 years, namely, between the age of 7 and 9 years of age and at the time of such assault did commit an act of indecency on the said CB: s 61M(2) Crimes Act 1900 (NSW).

134. The specific act upon which the Crown relies is – at Bidwell, touched CB’s vagina.

135. CB introduced the incident the subject of Count 7, as occurring when she was of an imprecisely stated young age, probably 5 or 6 years of age in grade 2 or 3 at school. It was at the end of night, she described the timing as “a bit morning and then a bit dark”. This description is an example of her conscientious attempt to be accurate whilst, a young person not of sophisticated thinking, or memory and of modest vocabulary for her age range. An example of the latter is that when giving oral evidence, at age 11 years, she did not know the meaning of the word “event” or of the word “incident”.

136. CB’s evidence was that she left as soon as she perceived the accused’s Count 7 conduct to be “inappropriate”. When asked the open question of this first “inappropriate incident”, the subject of Count 7, in the JIRT CB said:

“Police Officer: Okay. Can you tell me about that time?

CB: Well, when, when, like, we were laying on a, laying on a couch…we were laying on the couch and I was really cold and then he told me, um, to go under the blankets with him. And then, um, and then he was, like, he was, like, wait, oh, he was, like, um, really stale in that place and he, he was touching my, um, my veejay and, um, I got up ‘cause I told [the accused], I was lying that, um, I had to get a drink because I had to go away from him.”

137. That this was a description of the Count 7 incident and not the Count 8 incident, in the sometimes chronologically disordered description of events in the JIRT, is plain for many reasons on a detailed viewing and listening to her JIRT. Obviously one of those reasons is that at the time of the of the Count 7 event it was cold. I have already explained that I am satisfied that the Count 8 incident occurred in summer after Christmas 2019 and before CB’s birthday on 13 February 2020.

138. Her continuing answer to that open question included that she was at the kitchen counter when the accused came to check if she was okay because she had been there a long time [from Exhibit B, insert “long” after “‘cause, I’d been there, like” JIRT MFI10, A93]. She told the accused that she was okay. She said that she was scared and went upstairs and “went to sleep straight away ‘cause I was tired”.

139. CB was clear in her evidence that the Count 7 event occurred at DW’s house.

140. The police officer then asked questions exploring detail of CB’s above quoted statement that the accused was touching her vagina. There is no dispute that CB’s reference “veejay” meant vagina. She was asked to draw on the child body depiction handed to her by the police officer, “where your veejay is?” and “can you tell me where your veejay is?”. That diagram is Exhibit C. She has circled on the frontal portrayal the location of the top of the join of her legs. The officer wrote “VJ”. CB was not asked to draw on the diagram the location of the accused’s hand. She gave the appropriate answer for what she used her veejay for as “Like, peeing”. CB was referring knowingly to her vagina.

141. Repeatedly, CB stated that they were both clothed. She referred to her wearing shorts that she used to wear to school, which no longer fitted her at the time of the JIRT. She was wearing underwear.

142. When the police officer again returned to questioning of the touching, CB was careful in her repeated answers that the accused did not touch her vagina. She was not in these answers referring only to the fact that he touched on top of her clothes. She was careful, using her level of sophistication of expression at the time of the JIRT, when describing the location relative to her anatomy that the accused touched on top of her clothing. Her answers were:

“Police Officer: Yep. And when you said he touched you on your veejay, um, wh…

CB: Not, like, it was, like, he didn’t really touch it, he went, like, he went over my clothing and then, yeah. Just above my clothes.

…

Police Officer: Above your, on top of your clothes?

CB: Yep.

Police Officer: But on that area?

CB: Yeah. But not on the area.

Police Officer: Okay.

CB: It was just my shorts.

Police Officer: Okay. Can you describe to me what he was doing with his hand?

CB: He was, like, putting, like, when he was on, on top of my pant, uh, my shorts…

Police Officer: Yep.

CB: …um, I had to get up because, um, it was really disgusting and it felt really just”

143. When giving this last answer CB used her hands to demonstrate disgusting but not demonstrate a location of her body that was touched. In the above answers when CB referred to the area, the Exhibit C diagram was not on the table in front of her. She was not referring to the diagram. The police officer had removed it from the table and put it on the floor several questions before hand.

144. The police officer then put the suggestion that CB meant that the location she was touched on her clothes was actually on her vagina and CB did not accept that suggestion. The evidence was:

“Police Officer: …but he did, he touched you on the veejay?

CB: Not, like, under. Just, like on top. Like…

Police Officer: On top.

CB: …this is my shorts and then…

Police Officer: Yep.

CB: …that, that’s my hand…”

During this collection of questions and answers, CB demonstrated by putting one hand palm down and she said “this is my shorts” and the other hand palm facing down and a bit arched on top of the first hand. Fingers of her top hand were touching the back of her lower hand above the clefts of the joins of her fingers.

145. The answers during the JIRT, and the demonstration given by CB, do not clearly indicate that the touch was on her clothes at her vagina. The JIRT evidence is at least equally, and in my opinion properly to be understood as, the accused’s hand touching her anatomy at or above her pubic symphysis. That the accused did not touch the location of her vagina was settled by CB’s oral evidence during cross-examination “near my private area” (T126.49).

146. I am not satisfied beyond reasonable doubt that the accused touched her actually on the location of her vagina.

147. I am mindful that the touching occurred under the blanket and therefore out of sight of the accused. CB described and demonstrated the touch as momentary and located at the front top of her legs (T127.23-29).

148. CB confirmed that the incident the subject of Count 7 was the first time the accused had done anything “inappropriate” to her. Elsewhere in her evidence she confirmed that the incidents the subject of Counts 7 and 8 were the only events of what she considered the accused’s conduct toward her to have been “inappropriate”. She said that other than those two events “‘cause he never done that to me ever”. She also said “‘cause I never even talked to him, like, that much.”

COUNT 8

149. Between 25 December 2019 and 12 February 2020, at Bidwell in the State of NSW, did carry out a sexual act with or toward CB, a child who is of or under the age of 10 years contrary to s 66DC(a) Crimes Act 1900 (NSW).

150. The specific act upon which the Crown relies is – at Bidwell, masturbated in front of CB.

151. CB said that she was playing on her computer, the game Roblox, having come down stairs “by myself, no one beside me” to sit on the couch in the lounge. The accused was sitting on that couch (She did not in the JIRT, Exhibit B, say “where” the accused was sitting as appears in MFI10 JIRT Transcript A53). She quietly played her game Roblox whilst the accused was playing a video game which she described as a “racing” game. A temporal post used by her in her evidence for the incident is the point in his game when the accused went into “action mode”. She did not use the words “action mode” as a descriptive of the accused’s conduct.

152. She said that he was “looking at me weird” whilst telling her about the game. After watching him for a “bit of an hour” she started playing her own game Roblox whilst sitting on the couch that the accused was sitting on playing his game and talking to her about “action mode”.

153. CB said the accused was “reaching out for something next to me or I am sitting on something”. She thought it might be a jacket. She was sitting with her legs up and to her side. She said that she did not know what he wanted and she asked him what he wanted. He was telling her something “really in a low voice” [Exhibit B - substitute “low” for “weird in MFI10 JIRT Transcript A54] and she never got to hear what he was saying. Whilst CB said that he was looking at her “weird” her earlier evidence makes plain that he looked at her in that same way from when she first entered the room. As already observed, his staring was described during her oral evidence is not properly considered to infer the accused’s thinking associated with his actions at the time of the alleged incident.

154. CB interpreted his movement as “I noticed that he tried to grab my, my bum and I backed up a little bit because, and, and he told me again and then I told him, um, what do you want?”. The accused responded “never mind” and resumed playing his video racing game.

155. CB’s perception based opinion that the accused “tried” to touch her bum is to be considered with her demonstration of reaching for a toy bear during the JIRT. Her hand does not place on the bear’s backside. It goes to the bear’s hip. There is a real possibility that CB’s evidence is influenced by her general apprehension of the accused. To her he was a person of weird and gross manner of behaviour and poor hygiene.

156. In other answers in the JIRT, CB said that she was “confused” as to what the accused was reaching for and that it was when she noticed that there wasn’t a jacket or anything that, she perceived he was reaching for her “bum”. Her evidence was “but then I noticed it wasn’t anything, so I knew that he was reaching for my bum”.

157. CB included at the time of that evidence a demonstration which placed the offender at least 1m from her. He was far enough away, that in her demonstration she stood and leaned to her right and reached out with her right hand. She commented that his arm “is really long”. She also detailed that he invited her to watch his playing of the racing game because he was “goin’ to do a drift ‘cause, it’s like, every time it would rain, and this he had to do, like 7 or 15 drifts.” That was a description of the game’s “action mode”. It preceded very shortly her demonstration of his reach using the teddy on the couch.

158. CB said that the accused continued to speak in such a low, whispering, voice that she did not get to hear what he was saying. She demonstrated with her hand, the accused waving her to come closer as “he said come here”. She demonstrated his action by cupping her hands around her mouth and making a whispering noise which was not in discernible words.

159. The evidence is not inconsistent with a real possibility that the accused’s reaching toward her was him beckoning for her to watch him performing the racing car drifts in his video action game. It is not only consistent with his reaching toward her to touch her. Having considered her perception that he was reaching for her “bum”, I am not satisfied, beyond reasonable doubt, that his reaching was of sexual purpose associated with the specific act relied upon by the Crown.

160. CB said that then what happened was “um, he was just sitting there and I was just sitting there playing Roblox and he, he, like, touched where his D was.”

161. As he went into action mode with his video racing game, CB described the accused as leaning over but that he wasn’t really getting close to her [Exhibit B, substitute “wasn’t” for “was” JIRT transcript MFI 10, A85]. Nevertheless she did not like him in that proximity. She wanted more space from him. Again this evidence is to be considered in the context of her evidence of her general feeling of being uncomfortable in proximity of the accused.

162. It is not disputed in the evidence that CB’s references to “D” are to the accused’s penis. CB wrote “Dick” on the Exhibit C diagram.

163. CB provided an unprompted description of the incident the subject of Count 8 when she flowed into description of “inappropriate stuff”. Her open answer was:

“So he had pants on and then he went, like, really close to his pants and then, like, where his D was, um, right there. [no demonstration provided by CB] He pulled his, his pants, like, not all the way done but when he pulled it a little bit, um, I knew he wasn’t undies which was disgusting and, um, and he was really lookin’ at me weird and I told him, um, Yuck you’re weird, and then I went upstairs. Um, I was crying and then I went to [EW] and then told her, um, [the accused] is being really weird. And then she was, like, maybe he’s sleepwalking. And I was, like, no he’s eyes were open and she was, like, no maybe was actually sleepwalking. And I was, like, I went crying on the bed in the corner because I was scared he would come up.”

164. CB said that she closed the door because it made her feel safer and eventually went to sleep. In the morning, when her mother LM arrived to pick her up, she was crying when she was outside DW’s house because she didn’t want to go there. That CB cried when LM arrived is corroborated by DW and EW.

165. Before the police officer returned to investigate the detail of the incident further, it can be seen from the above quoted description, that CB did not describe anything of the accused’s penis other than that he put his hand on his pants in the location of where she understood his penis would be. In another answer she said “near” that location. He pulled his pants down a little bit.

166. When the police officer asked about CB’s earlier answer that the accused had touched the location of where his penis would be, CB answered:

“CB: ‘cause he pulled his pants down a little bit and then I knew he wasn’t wearing any undies so, um

Police Officer: Yep.

CB:…yeah, that’s when he brought his D out”

The police officer then asked questions introducing what boys use their penis for. CB answered “peeing”. CB said that she could see the accused’s penis but no questions were asked of her nor did she give any evidence of how much of his penis she saw or whether it was flaccid or erect, for instance. CB’s evidence was that she immediately got off the couch and said to the accused “Ew you’re disgusting” and went upstairs.

167. When the police officer asked what the accused was “doing” with his penis, CB answered that the accused pulled his penis out and looked at her in a way that she thought was “really damn weird” and then CB demonstrated what the accused was doing. She moved her left hand out in front with the palm up and fingers closed like a half fist, in a single motion. There was no, moving of her hand up and down, as if a demonstration of penis stimulating action. She said “and then what boys normally do when they’re alone” but there is no evidence of the meaning of what CB understood that boys do when alone.

168. The police officer then asked about when the accused did that and twice, in this set of questions, the officer raised her hand in front of herself in a vertical (thumb side up) position with a partially closed hand such as a hand might go around a pole or a penis. This was not the position of the hand demonstrated by CB. CB confirmed that the accused was touching his penis and when the officer said “Okay. So he had that hand…”, CB answered “yeah, he was masturbating himself.”

169. What CB understood of the meaning of the word “masturbating” was not explored, any more than was her understanding of what boys “normally do” when they are alone. I raised this with counsel for the parties and neither of them sought to pursue that investigation (T150.03-35). I informed counsel that “masturbation” was a big word for CB who did not know the meaning of the words “event” or “incident”.

170. During cross-examination, CB agreed that perhaps because of the accused’s lack of hygiene including that he stayed in clothes for ages, she would notice him scratching himself in the area of his penis. She considered that to be really gross (T147.05-24). She then gave the following evidence specifically related to the incident the subject of Count 8 (T149.01-14):

269. At [44] his Honour referred to the High Court Judgment in Douglas. In my opinion what was said by the High Court in Douglas v R [2012] HCA 34 of the approach taken by the trial judge (sitting without a jury) in relation to the credibility of the complainant and the summary of the approach of the Court of Criminal Appeal is of assistance here. The High Court summarised the approach of the Court of Criminal Appeal as follows (omitting references):

“[43] The Court of Criminal Appeal agreed with the trial judge that CD’s initial denials and the inconsistencies between her statements in the interview and on later occasions were explicable on the basis of CD’s young age. However, the Court was not prepared to place the same weight on the 2 factors on which the trial judge relied that CD was truthful. Doyle CJ, who gave the leading judgment, was not confident that the allegation was one that a 3 year old child was unlikely to make up. Nor was Doyle CJ confident that he would have given as much weight to CD’s firmness in cross examination as the trial judge had done. Nevertheless Doyle CJ considered that it had been open to the trial judge to accept CD’s account and to rely on it to reach a finding of guilt. In reaching that conclusion, Doyle CJ said this:

‘One cannot simply say that because [CD] was a 3 year old one could discard any difficulties with her evidence, accepting and acting on her evidence of the alleged offence. But equally one cannot say that [CD’s] evidence should be assessed in the same way as one would assess the evidence of an adult. Nor could one say that [CD’s] evidence was inherently unreliable because of her age. However, having regard to [CD’s] age, it was open to the judge to decide that she was truthful and reliable during the interview by the psychologist, which became her evidence, despite the problems with that evidence that [the appellant accused’s counsel] identified.’”

In consideration of this reasoning the High Court said:

“[46] In the passage set out earlier in these reasons, the Court of Criminal Appeal said that one could not discard any difficulties with CD’s evidence simply because she was a 3 year old. In the same passage, the Court went on to say that having regard to CD’s age it had been open to the judge to decide she was truthful and reliable despite the problems with her evidence. The Court did not explain how the two propositions were to be reconciled. How was the Judge to arrive at a state of satisfaction beyond reasonable doubt as to the reliability of CD’s statements in the interview given that the limited detail of the allegation was supplied in response to leading questions and only after initial denials? Those statements were the only evidence of the commission of the offence.

[47] In later statements CD gave inconsistent accounts of the scene of the offence. It is understandable that CD may have been confused when she was shown a plan of her Great-Grandmother’s property and asked to identify the shed. Nonetheless the fact that CD gave 3 different accounts of the scene of the offence cannot be dismissed in any assessment of her reliability as a historian.

[48] The criminal standard of proof is a designedly exacting standard. A different, lesser, standard is applied by Courts dealing with contested issues involving the care and protection of children. This was not such a proceeding. In the circumstances of this trial, it was an error of the Court of Criminal Appeal to hold that it had been open to the trial judge to have been satisfied of the reliability of CD’s statements in the interview and to reason from that, despite the appellant’s denial, to a conclusion that his guilt had been proved beyond reasonable doubt.”

270. In my opinion, when considering SR’s evidence of the specific act relied upon by the Crown in relation to each Count, it is to be borne in mind that she gave her evidence in the JIRT, at the prompting of the police officer as to the next event and often as to more detail, when on the whole of her evidence, SR described the accused committing similar offences occurring with great frequency. She complained of his charged and uncharged conduct which she considered gross and disgusting sexual abuse, in terms of “on and on, like always, every time I’d be in a room with him it would happen. Like, I’d go in and just want to watch TV or play a video game with him, so I’d sit on the lounge and then he’d just touch me, get on top of me, whisper to me.” She was during the JIRT and during her oral evidence remains unable to reliably identify when the incident the subject of each Count occurred. She agreed during cross-examination that her memory was that these were incidents among a great number of sexual abuses. She included in the 8 events of which she described for the police officer, the accused whispering to her that he loved her whilst she and her siblings were playing a video game in her home, as sufficiently abhorrent to be included. Also in relation to each Count, in my opinion, it is important to remain mindful of the impression of her resentment of favouritism shown by the family toward the accused, that she made her complaints to police to support CB and that she gave the impression of being prone to support LM’s approach of threatening the accused and believing that scaring him, such as in the prosecution of these proceedings, will stop him.

271. Whilst mindful of the resentment to which a victim of sexual abuse would understandably be entitled, I have found it a real possibility that her evidence might also be coloured by a broader resentment that the accused is living “the good life” whilst he has caused sadness to others. Whilst aware that victims of sexual abuse and particularly child victims do not always speak up at or near the time of the offence and that concern for how her family might view her if she did speak up could be a reason for SR having delayed speaking up; that she in 2018 to her loving and supportive mother JR and Aunty LM and then again in 2019 to LM cogently denied that the accused had been sexually inappropriate with her; but then, only 4 months later made the subject allegations to police in order to support CB in what LM in exaggerated terms informed her the accused had done to CB, is not a course of complaint persuasive of the truth of the subject matter of the complaints.

272. Further, her complaints to TW when in year 7 at school and in the weeks and days immediately preceding the JIRT to KC and TB described events not consistent with any of the specific acts upon which the Crown relies as the subject of a Count. Those complaints to her school friends were of sexual abuse of a level exaggerated above the allegations the subject of the Counts and of any other part of her evidence in the proceedings of sexual abuse.

273. Not of less significance is the appearance of SR’s willingness during the JIRT to describe serious sexual abuse conduct by the accused in relation to time, when in cross-examination she conceded that she could not recall incidents in parameters of time. The context event is an obvious example of this. Having told the police officer “I just don’t remember anything”, of an event which she initially timed as occurring when of age 3 years and being recounted 12 years later; she then proceeded to give detail of serious sexual offending in response to the police officer asking for details. Then in cross-examination, she agreed that she did not even know that she was three years of age when the sexual assault occurred.

274. The defence not unreasonably submitted that entrenched temporal posts upon which SR relied were proven to be wrong. She said that that first event, occurred at WW’s Warwick Farm home, at which she lived until 2013 when she would have been about 8 years of age. The evidence of DW, WW and most helpfully of the OIC was that she did not reside at WW’s Warwick Farm home after 2 November 2009 when she would only have been 4 years of age. She temporally located the events with watching of TV and in particular the playing of video games; but she was wrong when saying that she played with or observed the accused playing video games at WW’s Warwick Farm house. There was not even a video game playing device at that premise.

275. I have found that I am not satisfied beyond reasonable doubt of her evidence of the Count 2 event, that it happened. I have observed that there is a real possibility that the evidence she gave in relation to the Count 3 allegation of masturbation was influenced by that which was told to her (wrongly) by LM of what the accused had done with CB. SR’s statement to the police officer during the early part of the JIRT, that in effect, she was sexually assaulted every time she was in a room with the accused, I am concerned, is an expression of her belief or otherwise of the accused’s offending, both charged and uncharged, over time; but expressed at an unreal frequency, particularly given the circumstances of him living in the communal lounge room of the home and the presence of other people. On the whole of the evidence, the conclusion to which I have arrived is that there is a real possibility of confabulation pervading the evidence of SR.

276. So far as whether or not respectable members of the community would assess the acts alleged to be indecent, when considered separately in relation to each Count 1 – 6, the specific act is now to be assessed while bearing in mind the accused’s patent lowered function as an obvious surrounding circumstance. It was known to SR, CB, DW, LM and all members of the close unit of families. It was observable to reasonably attentive, respectable members of the community. His actions, as alleged, are not properly characterised as actions of another male of the maturity of his age at the time of each alleged incident. The evidence strongly infers that the age difference between him and each complainant is not an accurate measure for evaluation of indecency of each specific alleged act.

277. It is convenient to address Counts 2 and 3 first.

COUNT 2

278. In relation to this incident, SR could not recall when in time it occurred. Her evidence does not satisfy me beyond reasonable doubt that she identified the accused as the person laying on top of her as would be expected of a real and accurate memory. That the person told her that it was their secret and that she was not to tell anyone, is unconvincing of her having a real recollection. It does not seem plausible that the person on top of her would say that when in very close proximity to two other persons very familiar with the accused and SR. She alleges that the incident occurred right in front of persons she thought most likely to have been her uncle AW and his friend Jonah but they did not do or say anything in reaction. Generally, SR’s evidence of the lights being on, her eyes going dark, seeing shadows, being able to get up and exit the room and yet not having a recollection of having seen who was in the room, is not persuasive beyond reasonable doubt of being a recount by reliable evidence of a real memory of an incident. I am not satisfied from her evidence of Count 2, that SR is possessed of a reliable and accurate memory of the specific incident charged to be satisfied to the high standard required of beyond reasonable doubt.

279. In relation to Count 2, I find the accused not guilty.

COUNT 3

280. I have found that when considered with the whole of the evidence, SR’s evidence of Count 3 does not satisfy me beyond reasonable doubt that the alleged specific act occurred when she was under the age of 10 years. That being an essential element of Count 3, the accused is not guilty of Count 3.

281. SR’s evidence of Count 3, as I have examined it in these reasons, added to my concern that her evidence might not be of a real and accurate recollection. Her association with being alone in the presence of the accused in DW’s house because she was delivered there by her Great Aunty KW from school on account of her being sick, I found to be not persuasive. SR was unable to place the Count 3 allegation in time. Bearing in mind the Mahmood direction, nevertheless, I considered it a real possibility that her Great Aunty would not leave her begging not to be left at DW’s home, because of the relatively unimportant competing task of attending to her animals. The accused bears no obligation to prove anything and specifically not to prove a motive to lie. Bearing that in mind, I am concerned that this allegation of masturbation to ejaculation is of a display of full sexual arousal and activity not found in any other charged or uncharged incident. This allegation arose only following LM wrongly informing SR that the accused had involved CB in his masturbation activity. SR concedes that she spoke to police in the prosecution of these allegations in order to support CB and because of what she believes the accused had done to CB. Whether or not SR truly believes in her recollection of the Count 3 incident, I am not satisfied beyond reasonable doubt that her evidence is accurate of a reliable recollection.

282. In relation to Count 3, I find the accused not guilty.

COUNT 1

283. In relation to Count 1, SR is not able to place the alleged incident in time. The surrounding circumstance of her having asked the accused if she could participate in the piggy backing game is inconsistent with her other evidence that she would not play games with the accused if she had a choice. The description of the incident is general without the detail which might be expected of an accurate memory of a specific incident. In relation to her not making a contemporaneous complaint, she explained that the accused told her that it was their secret and not to tell anybody. Her description is that the accused lay on top of her and moved but there is no description of his bodily action or reaction consistent with sexual arousal.

284. SR gave a more detailed account of the Count 2 allegation. That Count also was of the accused laying on top of her in a bedroom. Given the real possibility that SR gives a recount not based on reliable evidence of real recollection of the specific act upon which the Crown relies for the Count, there is no logical reason to find the accused guilty of Count 1. I am not satisfied beyond reasonable doubt that the specific act occurred.

285. In relation to Count 1, I find the accused not guilty.

COUNT 4

286. SR cannot place the Count 4 allegation in time. In relation to Count 4, I bear in mind my concern for the accuracy and reliability of recollection of SR and my concern for her interpretation of events she describes from her memory. On her evidence, I have found that I am not satisfied beyond reasonable doubt that the specific act, if it occurred, involved more than the accused placing his flat palmed hand on SR’s buttocks area and telling her that he loved her. Given the real possibility that SR gives a recount not based on reliable evidence of real recollection of the specific act upon which the Crown relies for the Count, there is no logical reason to find the accused guilty of Count 4.

287. In relation to Count 4, I find the accused not guilty.

COUNT 5

288. My review of SR’s evidence showed that she could not place this alleged act in time. As I understood her evidence, (and despite what I observed of the chronological and age inconsistencies) this is the incident which SR associated temporally with her firstly telling her mother JR that the accused had touched her and then telling her mother that nothing untoward had happened and informing LM of that. As I have explained, they were cogent denials. Even taking the incident described at its worst, it was a momentary touching when the accused’s hand went between her legs as she walked past him in front of the couch. There is no description of his manner of reaching to putting his hand out such that it came into that contact. The evidence does not dissuade me from the real possibility of mere accident, if it occurred. SR says it occurred in full view of her brother AR who was immediately present. On the whole of the evidence I am not satisfied beyond reasonable doubt that SR has given an accurate description based on reliable memory of the specific act relied on by the Crown for the Count. Given the real possibility that SR gives a recount not based on reliable evidence of real recollection of the specific act upon which the Crown relies for the Count, there is no logical reason to find the accused guilty of Count 5.

289. In relation to Count 5, I find the accused not guilty.

COUNT 6

290. A particular of the assault upon which the Crown relies for Count 6 is that the accused touched SR in the vicinity of her vagina on the outside of her clothing. Plainly SR’s evidence does not include that he touched her. Further, the Crown relies upon SR’s perception of what the accused was trying to do when his arm reached out as she walked by. The concerns which I have expressed in relation to SR’s evidence render her description of interpretation of that reach to not be persuasive for me to be satisfied to the standard of beyond reasonable doubt. I have addressed sentiments and motivations for her evidence which cause me to accept the possibility that she has exaggerated and places a sexual interpretation to what might be an innocent act of the accused. In relation to Count 6 there is no description otherwise of his reach which explains the basis of her expressed opinion that he was trying to touch her vagina. Given the real possibility that SR gives a recount not based on reliable evidence of real recollection of the specific act upon which the Crown relies for the Count, there is no logical reason to find the accused guilty of Count 6.

291. In relation to Count 6, I find the accused not guilty.

COUNT 7

292. I have found from the evidence of CB that I am not satisfied beyond reasonable doubt that the specific act upon which the Crown relies for Count 7 occurred.

293. In relation to Count 7, I find the accused not guilty.

COUNT 8

294. I have found that the incident relied upon occurred before CB’s 10^th birthday. Masturbation is a sexual act for purposes of s 66DC(a). I have found from the evidence of CB that I am not satisfied beyond reasonable doubt that the specific act upon which the Crown relies for Count 8 occurred.

295. In relation to Count 8, I find the accused not guilty.

INDECENCY

296. My above verdicts make it unnecessary for me to determine the question of indecency in relation to Counts 1 – 7. For completeness I deal briefly with the essential element of indecency in Counts 1 – 7:

In relation to Count 1, a post pubescent male of 13 years advanced maturity laying on top of a prepubescent female and moving will generally be a sexual assault which, by its description and without more, is indecent. The evidence does not describe the accused’s use of his body parts or arousal of his penis which would establish sexual connotation beyond reasonable doubt. That he was not of intellectual maturity according to his age but of some lesser level of function which the Crown does not establish on the evidence is a relevant consideration. Within that his described deficits with social interaction, hygiene and function such that he would not competently make toast indicate a patent level of very low function for consideration in the question of indecency. He and SR were engaged in the physical activity of the piggy back game. He piggy backed her before and after the alleged 10 second act. The accused submitted that, given his functional deficits, there is a real possibility that his actions were innocent. SR told her mother JR and trusted Aunt LM in 2018 and 2019 that the accused’s behaviour of contact was characteristic of him being her uncle. That cogent denial was spoken from her understanding of his functional and behavioural deficits to her mother and aunt who were aware of them. I am not satisfied, beyond reasonable doubt, that respectable members of the community would, in the special circumstances of this case, regard the accused’s conduct to offend the standards of decency in our community.

In relation to Count 2, I consider the special circumstances and 2018 and 2019 denials of other than uncle appropriate touching just discussed in relation to Count 1. I, whilst noting that for Count 2 SR said the accused did move up and down which act would be characteristic of sexual connotation; I have observed that the immediately present persons who were close to SR and aware of the accused’s deficits did not by action or word intervene or react. Again the event was for a brief 10 seconds.

Having taken into account that without more the act described between a post pubescent male and a pre-pubescent female will generally be a sexual assault; for reason of the same special circumstances, I am not satisfied beyond reasonable doubt as to the element of indecency.

In relation to Count 3, the act of masturbation performed by a post pubescent male in view of a pre-pubescent female is an indecent act offensive to the standards of decency in the minds of respectable members of our community. His invitation to the victim to participate would be an aggravating factor. The same special circumstances do not, change the position that such an act is indecent.

I am satisfied beyond reasonable doubt that the specific act relied upon by the Crown in relation to Count 3 would, if proved, satisfy the element of indecency of the offence.

In relation to Count 4, SR gave some evidence of the accused squeezing her buttocks. I was not satisfied that her evidence described other than a flat palm placed on her buttocks. Without more, a post pubescent male squeezing the buttocks of a pre-pubescent female would be an assault of sexual connotation and indecent. An uncle touching his niece momentarily, with a flat palmed hand in appropriate uncle confronting fashion might be equivocal as to sexual connotation.

Given consideration of the same special circumstances, including SR’s description to her mother and aunt of uncle type touching in the context of their shared awareness of his special circumstances, I am not satisfied beyond reasonable doubt of the element of indecency on the evidence in relation to Count 4.

In relation to Count 5, generally, and without more, a post pubescent male deliberately touching a pre-pubescent female above her clothes at the location of her vagina will be an assault of sexual connotation and indecent. The Crown relies on the location of contact and not more. I am not satisfied beyond reasonable doubt on the paucity of evidence of the action of the accused’s reach, that the momentary touch of the moving SR at her vagina was deliberate. I am not satisfied beyond reasonable doubt that attentive respectable members of the community would find the element of indecency in relation to Count 5.

In relation to Count 6, again a post pubescent male assaulting a pre-pubescent female by deliberately or recklessly causing her fear that he was to touch her vagina, would, generally and without more, be an assault of sexual connotation and indecent. However, SR’s evidence does not describe the accused’s action of reaching such that it was beyond reasonable doubt a deliberate or reckless reach for her vagina. On the evidence I am not satisfied beyond reasonable doubt that her apprehension of touch of her vagina was a reasonable one.

I am not satisfied on the evidence that the incident relied upon by the Crown is proved beyond reasonable doubt to have involved an indecent act.

In relation to Count 7, again generally a deliberate touch by a post pubescent male of a pre-pubescent female above her clothes at her vagina, would be an assault of sexual connotation and indecent. However, if that act occurred, the touch was of short duration and at the location unseen by the accused. CB’s body and the accused’s hand were beneath a blanket. There is no evidence, for instance, of the accused’s hand searching for her vagina. The alleged touch occurred in the midst of him beckoning CB, including by arm and hand movements to watch him in action mode on the game.

I am not satisfied beyond reasonable doubt, on the basis of CB’s evidence, that the touch at vagina alleged by the Crown (not found by me) was a deliberate action. I am not satisfied beyond reasonable doubt that respectable members of the community would regard the conduct proved on the evidence, as offending against the standards of decency in our community absent being satisfied of some intention on the part of the accused to obtain sexual gratification. The surrounding evidence of his game and that CB’s body was unseen, is not consistent with his bearing such purpose at the time.

TENDENCY

297. I have not overlooked the Crown’s argument of propensity on the basis of the tendency evidence. However, I am not satisfied that any of the conduct the Crown relies upon, that being the conduct the subject of Counts 1 – 8, occurred. On the whole of the evidence in the trial, I am not satisfied that the tendency evidence makes more likely that the accused conducted himself in the way the Crown alleges on any of the occasions of Counts 1 – 8. I have dealt with SR’s evidence in detail because if it were credible and without more, her evidence describes the subject acts. I have not found CB’s evidence, beyond reasonable doubt, to describe the acts the subject of Counts 7 and 8 upon which the Crown relies but that the acts were not what the Crown alleges. Therefore, CB’s evidence does not support either the propensity or tendency to act which otherwise would make it more likely the accused committed the specific offences in the Counts.

ORDERS

298. I make the following Orders:

1. In relation to Count 1 on the indictment I find the accused Not Guilty.

2. In relation to Count 2 on the indictment I find the accused Not Guilty.

3. In relation to Count 3 on the indictment I find the accused Not Guilty.

4. In relation to Count 4 on the indictment I find the accused Not Guilty.

5. In relation to Count 5 on the indictment I find the accused Not Guilty.

6. In relation to Count 6 on the indictment I find the accused Not Guilty.

7. In relation to Count 7 on the indictment I find the accused Not Guilty.

8. In relation to Count 8 on the indictment I find the accused Not Guilty.

9. Exhibits be returned to the parties.

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Amendments

04 February 2022 - Amendment to ensure compliance with the non-publication order.