R v Whitby

[2010] NSWDC 119

New South Wales

District Court

CITATION:	R v WHITBY [2010] NSWDC 119
HEARING DATE(S):	15 June 2010 - 24 June 2010 28 June 2010 30 June 2010
JUDGMENT DATE:	1 July 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	I find the accused guilty on all 120 counts on the indictment.
CATCHWORDS:	CRIMINAL LAW - Judgment and Verdict - Judge only trial - Identification - Accused alleged to have videotaped child sexual assaults
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown David Shane Whitby
FILE NUMBER(S):	DC 2009/00160346
COUNSEL:	M Tedeschi QC - Crown P Young SC with N Mikhaiel - Accused
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

JUDGMENT

Introduction

1 On 15 June 2010 the accused David Shane Whitby was called for trial. He
was arraigned on a lengthy indictment which contained 120 charges. He

pleaded not guilty to each of those charges.

Trial by Judge Alone

2 Well before the day listed for the accused’s trial he had elected for trial by
judge alone. An election signed by the accused and containing consent by
the Director of Public Prosecutions had been filed some time ago. I viewed
that election and satisfied myself, through making enquiry of the accused,
that he had received appropriate legal advice before choosing to have his

trial heard by a judge rather than a jury.

The Charges

3 The charges faced by the accused can be conveniently grouped as

follows:

4 Count one concerned an allegation of persistent sexual abuse of a child,
that child being LW1. The evidence regarding that count primarily came
from the complainant herself in oral evidence in court, although the Crown
relied, if necessary, on tendency evidence as well.

5 The Crown demonstrated that, in accordance with S 66EA Crimes Act, the necessary approval for a prosecution under that section had been granted.

6 Counts 2 – 114 related to sexual conduct depicted in a series of video
recordings. Those recordings showed, for each count, a particular sexual act
occurring between an adult male and a child. In total there were 8 children
shown in the videos. There was no dispute that the events occurred. What
was in dispute was whether the accused was the adult male depicted in the

various video recordings.

7 Counts 115 - 119 were allegations that the accused used named children
for the purposes of pornography. These charges were also based on the
DVD recordings which show children being used for the purposes of
pornography. Once more the issue for those counts was whether it was the
accused depicted in the video recordings.
8 The final count, count 120, was an allegation that the accused possessed
child pornography. It related not only to his alleged possession of the video
recordings I have already mentioned but also a further recording entitled

“Kiddie Porn”, the nature of which is obvious from its title.

The Crown Case against the accused.

9 I will outline the case against the accused. On 13 March 2008 LW1, then
14 years old, told her stepmother that for many years she had been
sexually molested by the accused. Later she was interviewed by a police
officer and she made allegations of having been sexually abused by the
accused over a lengthy period of time. LW1 had a brother, LW2. Their
mother, DW, was a long time friend of the accused.

10 A few days after LW1 had spoken to the police, the police also spoke to LW2. As a consequence of what the children told police, on 26 September 2008 Detective Shepherd and others went to a residence where the accused

lived with a person named GH. The premises are a duplex, with a unit
upstairs and a unit downstairs. The accused and GH lived upstairs. The
accused may not have spent every night there, but he had his own bedroom

and received at least some of his mail there.

11 Police went to this upstairs unit and knocked on the door. It was
answered by the accused. GH was at home at the time and he observed
what happened. The police told the accused that they were looking for Mr

David Whitby, but the accused denied that that was who he was. He said

“He lives downstairs.” The police were a little bit puzzled because they

thought that this was the accused but they thought they should first check
downstairs. So they then went downstairs to the bottom unit. GH’s evidence
was that after they had gone, the accused went into his bedroom and

returned with a plastic bag which he put into the rubbish bin in the kitchen.

12 Meanwhile the police had realised that they had been misled. They went made by LW1. By 2.30pm that afternoon, the interview with the accused had been concluded, and the accused was informed that he was going to be charged.

back upstairs and arrested the accused, telling him that this was for the
sexual assault of LW1. The accused was then taken to the Camden Police
13 The Crown case is that the accused then became concerned that he may
be bail refused in relation to those charges, and that what he had put into
the rubbish bin might be thrown out by GH. It is agreed by the accused that
at 5.27pm he made a telephone call from Camden Police Station to GH, who
was working at the time. It is the Crown case that the accused told him not

to throw out the garbage.

14 When GH got home from work he first relaxed by watching TV, but, his was the name of one of the sons of his partner, Ms KW. He placed that DVD into a DVD player and saw a video recording of what he believed to be the accused sexually abusing LW3.

evidence was, the conversation he had had with the accused was playing on
his mind. He therefore went to the kitchen garbage bin and saw the same
plastic bag that he had seen the accused put into the bin. He opened up the
plastic bag and saw a number of DVDs and a video cassette. On one of the
15 He then looked at another DVD and saw a video of another of his
partner’s sons, NW, also being sexually abused by the accused.
16 The phone attached to the premises was not working so he went to the
hotel where he worked and used the phone there. He rang GW, and they
took the plastic bag and its contents to the Camden Police Station. The
officer in charge of the accused’s matter was at home asleep when this
happened. He was woken up by a phone call but, quite understandably, did
not immediately jump out of bed to go back to work to review the material
which had been handed in.

17 All this occurred on a Friday. The following day, which was Saturday the 27th September 2008, the accused got bail and went home. There he met GH who was not at all pleased to hear that it was a condition of the

accused’s bail that he live at the home they shared. So he headed off to the police station to raise that issue with them. So did the accused. It was GH’s evidence that when they met up there GH said to him “You sick fuck, what

are you doing here?” to which the accused replied “I know I’m sick.”

18 Two days later, that is on Monday the 29th, at about 11.30am, the

accused returned to the unit to get some of his belongings.

19 GH and a police officer who had turned up to interview him then saw the
accused bashing his head against a brick wall. He was restrained by the

police and taken to Hospital.

20 Later that same day the police went to the accused’s home and searched
it. There they found a number of items in various locations – in the
accused’s bedroom in a shed and later also in a brown suitcase which had
been put in the backyard. Some of those items are of particular significance

in ways I will later describe.

21 The police then undertook the lengthy task of viewing the DVDs handed
to them by GH. The DVDs, or copies of them, became exhibits 82, 83 and 84

in this trial.

22 Exhibit 82 contains a large number of DVDs which in turn contain video
files in which an adult male is seen to commit acts of sexual abuse on a
number of children, seven or eight of whom have been identified (there is
some doubt as to the identity of one of the children). Some of the children
are only seen being abused on one occasion. Others are seen being abused
on multiple occasions over many years. The Crown case is that the accused

had access to those children through his friendships with their parents.

23 When reviewing the discs the police also discovered a video file entitled

“Kiddie Porn” which showed what appeared to be commercially, but illicitly,

available child pornography.

24 I should mention at this stage, that along with the video files showing children being sexually abused, when police viewed the DVDs they found video files of an adult male having what appeared to be consensual sex with

a number of adult females, two of whom, Ms DW and Ms GW gave evidence
in this trial, as well as video files showing an adult male in innocent social
occasions. Exhibit 83 contained some of the video files of consensual sex
between adult females and an adult male and exhibit 84 contained video
files of an adult male in social situations. I will return to the significance of

that evidence later.

The Defence Case

25 As far as almost all the counts on the indictment are concerned there is
but a single issue for me to determine: is the accused the adult male shown
abusing the children, or more accurately of course, for each count on the
indictment, am I satisfied beyond reasonable doubt that the person shown
performing the acts depicted in the video files is the accused?
26 The accused does not dispute that the video files show an adult male
committing the offences alleged in counts 2 – 119. He admitted that a
summary prepared by the police (exhibit 81) was accurate – except insofar
as it attributed the acts to the “accused” rather than “an adult male”. This
relieved me of the need to watch all of the sexual acts being performed. I
did however spend more than a day watching extracts shown to me,
primarily in order that I could determine the single issue in dispute which I
repeat was: am I satisfied beyond reasonable doubt that the accused was
the adult male shown on each of the video files which were the subject of a
count on the indictment. This required me to do more than simply look at
the appearance of the adult male, on many occasions what he was shown to
be doing (or having done to him), and what he and others were shown to be

wearing was of particular relevance.

27 Mr Whitby gave evidence in the trial. His case was that the man shown in
the video files perpetrating abhorrent acts on many children was not him,
but a former acquaintance of his, “David Haines”. He gave evidence that he
and Mr Haines looked similar and in fact when shown exhibit 84, which
contained video files of an adult male in social situations, the accused said
that he was unable to determine whether that person was him or Mr Haines.
He was also unable to say whether it was him or Mr Haines seen having
consensual sex with GW or DW in the relevant video files in exhibits 82 and
83.

28 He explained how Mr Haines would be able to sexually assault eight children with whom the accused had a relationship, and do so in three premises where the accused had lived, by saying that Mr Haines had access

to almost every part of the accused’s life. Despite this he was unable to
nominate anyone who knew Mr Haines who was neither too sick to come to
court (his mother) nor dead (a Mr Green, a Mr Simeon and the accused’s
step-father). The accused did not know, and had never known, Mr Haines’
address. The accused did not know, and had never known his phone
number. The accused had never had any way of contacting him. The only
person the accused could nominate who was not dead or too sick to come to
court who knew David Haines was named “Peter”, but the accused was not
able to further identify “Peter”. He agreed that “Peter” was not an unusual
name. Further, despite being something of an avid user of a handycam (the
police found 3 handycams when they searched the accused’s bedroom) not

a single image of “David Haines” was produced by the accused.

29 He acknowledged that the vast majority of the things found in his
bedroom or in other parts of the home he shared with GH, or in a suitcase
found hidden in the back yard (many of which can be seen on the videos)
are items with which he had an association, but explained his connection
with them by saying that they were either left over by “lady friends” of his
who went home leaving their underwear behind, were used during dressing
up parties which he either organised or attended, or were used during

consensual sex with adult women.

30 He denied sexually molesting LW1 in any way either before or after her

tenth birthday.

31 It was his evidence, that after an argument over some money in which
the accused said that he didn’t want to take GH to court, GH said “we’ll see

who ends up in court”, went into his bedroom and removed a plastic bag full

of items, and headed off towards the police station. Although he could not
say that what GH handed over to police was definitely the discs which
comprise exhibit 82 the obvious inference from his evidence was that that
was what GH took to the police station, having removed it from his, that is

GH’s bedroom after an argument with the accused.

32 The accused denied that he ever said “I know I’m sick” to GH. The
accused also denied that he had deliberately bashed his head against a
brick wall but claimed that the repeated contact between his head and a

brick wall was accidental.

33 The accused did not offer any explanation as to why it would be that GH
would have in his possession a number of DVDs showing David Haines
sexually abusing children and, if it is him, having consensual sex with adult

females with whom the accused said he had also had sex.

34 The accused also gave evidence that because of an injury he had
suffered, his movements were restricted, as was his ability to obtain and
maintain an erection. The relevance of that evidence was clearly that the
adult male in the video files in exhibit 82 was able to obtain an erection and
showed no restrictions in his movements. No medical or other evidence was
adduced to support what the accused said and his evidence as to the
number of items of underwear left behind by “lady friends” rather suggested

a successful sex life.

35 I should note also at this stage that there were some problems in the
acceptance of other areas of the accused’s evidence and indeed some
aspects of what the accused said were incapable of belief. This has affected
the weight which I give to the unsupported word of the accused concerning

many matters, including the conditions from which he said he suffered.

36 Since I have just mentioned the topic, it is a convenient time to discuss

two particular problems with the accused’s evidence.

37 As I mentioned above the accused gave evidence that GH stormed out of
the house after an argument, taking a package which must have contained
the DVDs to the police station. However the accused’s evidence was that
this occurred on a Saturday afternoon after the accused had endured a
lengthy trip by public transport when released on bail. The evidence of GH
and Ms KW, as well as police officers and the contemporaneous record
(namely the exhibit book) showed that the accused’s evidence was
incapable of being accepted because by the time the accused returned to
his home on the Saturday, the discs were already in the hands of the police.

This is not a matter where the accused could simply be mistaken.

38 Another significant aspect of the accused’s evidence concerned a note
written on an envelope found in the accused’s bedroom when they

searched the premises which he occupied with GH. The note read “DISCS IN

BIN”. That is clearly capable of having an incriminating flavour, tending to

support GH’s evidence that the accused placed the discs, exhibit 82, in the when he had been released from police custody he would remember to retrieve the discs from the garbage bin.

garbage bin when the police were downstairs. The inference which the
39 However the accused attempted to give an innocent explanation. He said

that the word “bin” is used by people in the disc jockey trade to refer to

“speakers” (this terminology is accepted by the Crown) and that the note
was written by him sometime in 2007 for a roadie with whom he worked, to
alert the roadie to the fact that audio discs used in the accused’s DJ
endeavours could be found within the speakers. However, unbeknownst to
the accused, when he gave that evidence the envelope contained within it a
bank statement which was dated such that it would not have been available
to the accused at any time in 2007 for him to write the note that he said he
wrote in that year. The accused’s attempt to innocently explain that note
failed. Once more this is not a matter that the accused could have made a

mistake about. To the contrary it shows deliberate deception.

Fundamental Principles

40 What I will do now is state some fundamental principles which I have applied. They are matters I would have directed a jury about, had there been one.

I have decided the case according to the evidence presented in court

41 The first principle is that I will determine all relevant issues of fact
according to the evidence which has been placed before me. I have made
no private enquiries of any kind about anything that has come up in the

course of this trial.

42 If I were hearing this case with a jury I would instruct them that they are
to ignore any emotions that they may have felt in deciding whether or not
the accused is guilty of the charges that he faces. Judges are not immune
from emotion. The actions depicted on the DVDs were horrible. It was very

difficult to watch them.

43 But emotions of course have to be put to one side. I must decide this
case from a totally dispassionate point of view. The extreme nature of some
of the actions pictured on the DVD is logically unconnected with the issue as
to whether it was the accused who was the person performing those
actions. It is undeniable that a terrible thing has happened to the children

who appear on the DVDs and there may be a tendency to think that

“someone must pay”. I have put such thoughts aside – again because the

issue for me to decide is not whether “someone” did those terrible acts but

whether I am satisfied beyond reasonable doubt that it was the accused.

The onus and standard of proof

44 I have just mentioned that I have to be satisfied “beyond reasonable

doubt” that it was the accused who performed the acts shown in the DVDs.

The most important and fundamental principle of law which I will apply concerns the onus and standard of proof. Because this is a criminal trial the burden of proving the guilt of the accused is placed firmly upon the Crown. The accused started this trial from the position that he is assumed to be innocent, and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty, if the Crown is able to do that.

45 What the Crown must prove and prove beyond reasonable doubt are the
ingredients or essential facts contained in the charges arising from the
indictment. I will indicate what the ingredients or essential facts arising from

the charges on the indictment are in a little while.

46 The Crown does not have to prove the identity of any of the complainants
who it says appear in the videos the subject of counts 2 – 119. As it turns
out it may be that one or even two of the children have not been correctly
identified, but the identity of complainants is not an element of the offence,
it is only a particular. What the Crown does have to prove is that each of the
children depicted in the videos are within the relevant age range specified
in the appropriate count. Although there may have been some doubt as to

the particular identity of some of the children involved, there is no issue
that the various children were within the relevant age range for each count
on the indictment. The ages of the children were proved by: exhibit 81
(which consisted of written synopses of the video recordings); admissions by
the accused; oral evidence from those who knew the children as they were
growing up; and by the appearance of the children themselves in the
videos.

I do not have to resolve all areas of dispute

47 Were I directing a jury I would tell them what the Crown has to prove,
and prove beyond reasonable doubt of course are the elements of each
offence. I would direct the jury that it is not necessary that they accept
every word spoken by every one of the Crown’s witnesses. Nor is it
necessary for them to resolve every dispute that arises on the evidence and
it may be that there are areas in the evidence where it is not necessary for
them to make a finding as to whether they accept particular pieces of
evidence. As it is not necessary for a jury to do that, nor is it necessary for
me to make findings of fact regarding every aspect of the evidence put

before me.

Hearsay Warning

48 The Crown relied on hearsay evidence regarding an allegation that the
accused had attempted to hide his brown suitcase containing incriminating
items. Mr Green, the downstairs neighbour was said to have told GH, that he
had seen the accused with the suitcase. That evidence may be unreliable

and I need to exercise caution before I accept it.

49 Firstly what Mr Green allegedly said to GH was not on oath and was not reason that the evidence might be unreliable is because Mr Green could clearly not be cross examined by Mr Young. I therefore did not get any opportunity to see his evidence tested.

said in the solemn and serious atmosphere of a Court room. Secondly
because I did not hear Mr Green himself, the possibility of
miscommunication is increased. When I heard GH give evidence about what

Exercise of the right to silence

50 I heard evidence that the accused had declined to be interviewed by
police regarding the DVDs handed to them by GH. I will of course draw no
adverse inference from the fact that the accused exercised his right to

silence in that way.

Delay in complaint

51 Mr Young questioned some witnesses regarding the lack of complaint
made by the children shown in exhibit 82. This lack of complaint has to be
seen in the context of the issues which arise in this trial, including those
which concern count 1. It is common ground that the children were sexually
abused by someone and the fact remains that they made no complaint at
all. The significance of the lack of the complaint is much less than in other
cases where the issue is whether the children were abused in the first place.
52 As far as count one is concerned, although there may be good reasons
why Ms LW1 failed to complain until she spoke to Ms H and that does not
necessarily mean that her evidence is false, I do have to consider whether
the absence of complaint until then affects LW1’s credibility. Once more
though, this matter has to be looked at in the context of the issues in
dispute as far as count one is concerned. Ms LW1’s credibility was not really
challenged. Instead she was asked in cross examination:

Q. “I need to put to you that you are mistaken about the person who sexually abused you…over the years that you have mentioned, that in fact it wasn't Mr Whitby, that it was another David. What do you

have to say about that?

A. No, I disagree”

53 At the Crown’s request I will not use the evidence of LW1’s complaint to

Ms H as evidence of the truth of what she said.

54 It is also the case that, for all the matters on the indictment, the accused
is now facing trial for matters allegedly done by him many years ago. He is
thus in a forensic difficulty in meeting the Crown case. Because of the delay
the accused has been unable to properly meet the allegations raised
against him and he has by reason of the delay lost the opportunity of
perhaps calling evidence to test the allegations and the evidence of those
who gave evidence in the Crown case. The delay would have meant that the
accused has had difficulty answering the Crown case by properly and
adequately preparing his defence and difficulty in testing and challenging
the Crown case through cross-examination and through calling of the
evidence. In particular the deaths or serious illness of people who the

accused said knew Mr Haines presented him with an obvious difficulty.

55 Of course the accused does not have to call evidence nor does he have
to prove anything. It is for the Crown to prove the charges against him
beyond reasonable doubt but his ability to test and challenge the Crown
evidence has been made harder because of the delay. The passage of time
must also have made everyone’s recollections less accurate, less certain,
and for those reasons less valuable. Although this applies generally, in
particular LW1 was less able to provide details which, if they had been
provided, may have exposed the unreliability of her evidence.

56 In the context of a criminal trial where the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, I must take into account that it is much harder to be satisfied to that high level where delay has diminished the accuracy of recollections and the ability of the accused to expose those recollections as unreliable.

Single Witness

57 There is one particular principle of law which I must take into account
regarding count one on the indictment. The prosecution case for that count
is based largely on the evidence of a single witness, LW1. I must therefore
warn myself that I should exercise caution before convicting the accused on
that count because the Crown case depends on me accepting the reliability
of a single witness. Unless I am satisfied beyond reasonable doubt that LW1
is both an honest and accurate witness in the account she had given I

cannot find the accused guilty on count one.

58 I must therefore examine her evidence very carefully in order to satisfy
myself that I can safely act upon that evidence to the high standard
required in a criminal trial. I am entitled to convict the accused upon the
evidence of LW1 but only after I have carefully examined the evidence and
satisfied myself that it is reliable beyond reasonable doubt.

Evidence by CCTV

59 LW1 gave her evidence by way of closed circuit television. In accordance
with section 294B Crimes Act I remind myself of the direction I earlier gave
myself, namely that it is standard procedure to give evidence via CCTV, and
that I must not to draw any adverse inference against the accused and must
not give the evidence any greater or lesser weight because it is given by

means of CCTV.

Lies by the Accused

60 The Crown says that the accused told lies regarding a number of

matters:

His identity when police knocked on his door,
The existence of David Haines, and.

The circumstances in which the DVDs were taken to the police.

61 I do not need to decide whether the first and second of those were lies,
and there is an element of circularity in the Crown relying on the
circumstances in which the DVDs were taken to the police as demonstrating
a consciousness of guilt. So I do not rely on anything said by the accused as
demonstrating a consciousness of guilt. Although I am satisfied he has lied
about the circumstances in which the DVDs were taken to the police and
may well have fabricated the existence of David Haines, I specifically state
that I do not think that just because a person is shown to have told a lie

about something, that is evidence of guilt.

Motive to lie

62 While I am dealing with lies, let me refer to one aspect of the accused’s

case that many people have told lies to incriminate him.

63 As I have explained the accused does not have to prove anything in this
trial and that includes a reason that a witness would lie. Just because I
cannot see a motive for a witness to lie, that does not necessarily mean that
the witness is telling the truth. After all, there might be a motive to lie which
no-one knows about. The Crown must still prove to me that the accused
committed these offences beyond reasonable doubt.

64 I must remember that the absence of evidence of a motive for lying is not proof that there was no motive for lying. Absence of evidence as to a motive to lie is irrelevant and adds nothing to the reliability of the witnesses

or evidence in the Crown case.

65 The accused can’t be expected to see into the mind of the witnesses and
be held accountable for failing to discover whatever motive there may be

for him or her to tell a false story.

Other acts

66 The Crown case contained evidence of many many acts of sexual assault
which were not the subject of charges. Even though the indictment
contained 120 Counts that represented only a small proportion of the
individual offences shown on exhibit 82. Except insofar as the Crown relied
on some aspects of the evidence for tendency and coincidence purposes, I
must not use this evidence of other acts as establishing a tendency on the
part of the accused to commit offences of the type with which he has been
charged. I must not simply reason that because the accused may have done
something wrong on one or more occasions, he must therefore necessarily
be guilty of every offence with which he has been charged.
Rejecting the Accused’s case does not mean that he is guilty

67 There is no onus of proof on the accused. That applies to his evidence as to the identity of the man in exhibit 82 just as much as it applies to all other aspects of what he said. The accused does not have to prove that the real

perpetrator is “David Haines”, it is for the Crown to prove that that evidence
should be rejected if it can.

68 If the Crown does satisfy me beyond reasonable doubt that the accused’s evidence should be rejected it doesn’t follow that I must necessarily convict him. I will not assume that, if the David Haine’s version

is rejected, then the accused must be guilty.

Separate Consideration

69 The 120 counts on the indictment are interlinked in various ways, but
that does not mean that its is a case of “guilty of one – guilty of them all”.

Each count must be given separate consideration.

Elements

70 I turn now to the elements of each offence. The Crown must establish
each of the elements beyond reasonable doubt before I can convict the
accused. However, I repeat, there is no dispute that the offences occurred –
the only question being the identity of the person who committed them. So I
will simply state the elements before returning to a consideration of the

central issue in the trial.

Count 1

The accused engaged in conduct in relation to Ms LW1
constituting a sexual offence;
On three or more separate occasions occurring on separate
days; and

The victim was under the age of 18 years.

Counts 2, 63, 64, 65 and 102

The accused assaulted the victim; and
That assault was accompanied by an act of indecency on the
victim which occurred at the time of the assault; and

The victim was under the age of 16.

Counts 10, 28, 37, 40 and 93

The accused assaulted the victim; and
That assault was accompanied by an act of indecency on the
victim which occurred at the time of the assault; and

The victim was under the age of 10 years.

Count 25

The accused committed an act of indecency towards the victim;
and
The victim was under the age of 16 years

Counts 26 and 27

The accused committed an act of indecency towards the victim;
and

The victim was under the age of 10 years.

Count 6

The accused incited a person to commit an act of indecency
with the accused; and

The victim was under the age of 10 years.

Counts 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 31, 32, 34, 35, 36,

38, 39, 41, 42, and 43

The accused had sexual intercourse with the victim; and

The victim was under the age of 10 years.

Counts 29, 30 and 33

The accused attempted to have sexual intercourse with the
victim; and

The victim was under the age of 10 years.

Counts 3, 4, 19, 20, 21, 22, 23, 24, 44, 45, 46, 47, 48, 49, 50, 51,
53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 66, 67, 68, 69, 70, 71, 72, 73,
74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91,
92, 94, 95, 96, 97, 98, 99, 100, 101, 103, 104, 105, 106, 107, 108,

109, 110, 111, 112, 113 and 114

The accused had sexual intercourse with the victim; and the age of 14 years.

Count 52

The accused attempted to have sexual intercourse with the the age of 14 years.

victim; and

Counts 115, 116, 117, 118 and 119

The accused used a child for pornographic purposes; and

The child was under the age of 14 years.

Count 120

The accused had child pornography in his possession.

71 As far as counts 29, 30, 33 and 52 are concerned, to establish that the
accused attempted the relevant act the Crown must establish, first, that the
accused intended to perform that act, secondly, that the accused did some
act towards that act which was immediately (rather than remotely)
connected with committing that crime, and which cannot reasonably be

regarded as having any purpose other than to commit that particular crime.

72 I have not set out the various definitions which I must apply such as

“sexual offence” in section 66EA, “sexual intercourse” in section 61H,
“pornographic purposes” in section 91G, and “child pornography” under

section 91H. For all counts I have of course applied the relevant definitions as they were in force at the time of the conduct the subject of the charges.

Identification Evidence

73 The fundamental issue for me to decide in this case, at least as far as counts 2 – 119 are concerned, is whether it is the accused who is shown abusing children on the videos to be found on the discs which make up

exhibit 82. As part of this determination I also have to consider whether it is
the accused depicted on other videos in exhibits 82 and 83 – these are
videos showing an adult man having consensual sex with adult women -

and videos in exhibit 84 which show an adult male in social settings.

74 It may also be that the issue of identification arises in count one as well. as was suggested in cross examination, that may because she has misremembered who it was, or it may be that she mistakenly identified who it was at the time it was occurring. The determination as to the identity of the adult male in exhibit 82, where those videos show sexual assaults upon LW1, is also relevant to count one if I rely on that evidence on a tendency basis.

75 Were there a jury determining these matters I would have to give them a
direction in which I warned them about the dangers of identification
evidence. That warning becomes no less important simply because it is a

judge determining whether the accused is guilty or not.

Special need for caution

76 There is a special need for caution which I have to exercise before I draw
the conclusion which the Crown asks me to draw, namely that it is the
accused depicted on every one of the relevant DVDs and that Ms LW1 has
correctly identified the accused as far as count one is concerned. This is
because the experience of the law is that mistakes concerning identification
are often and easily made.

77 This direction is consistent not only with my experience as a judge in the criminal courts, but also with my experience of life generally. I have myself made mistakes regarding the identity of people in my everyday life. Perhaps

I notice these mistakes more than someone not involved in the criminal law, because every time I make a mistake, I reflect upon the directions that I give juries in identification cases. I am well aware that mistakes concerning identification are often and easily made.

78 In fact in this case itself, I heard evidence which demonstrated that part of the video from which the photograph had been taken. DW immediately identified that child as being her daughter and she was not challenged by the accused on that matter. That DW would be unable to identify her daughter from a photograph shown to her demonstrates, yet again, how easy it is that mistakes regarding identification are easily made.

mistakes can be made. Ms DW was shown a photograph taken from a video
which was part of exhibit 82. The Crown case was that it was a photograph
of DW’s daughter LW1 when she was much younger than she is today. But

79 There is further evidence of this too. There was evidence given in the Crown case from police officers that they recognised Ms JK in some of the videos. Yet when her mother was shown photographs taken from the videos,

then part of the videos themselves, she said that they did not depict her
daughter. (I do not have to decide whether the police were right, or as was
perhaps more likely, EK is right because it is not an element of any offence
that the identity of the particular child be proved. As I have mentioned
above all I have to be satisfied beyond reasonable doubt about is that the
child falls into a relevant age range).

80 The identification warning is appropriate to the present case. The Crown seeks to identify the adult male in exhibit 82 as the accused in a number of ways.

Evidence concerning the identity of the adult male in exhibit 82

81 Firstly, the Crown called evidence from a number of lay witnesses who
knew the accused. They were shown still images from exhibit 82 (as well as
other images which the Crown alleged were also of the accused). They each
identified the adult male in the images as being the accused. These
witnesses included people who had known him for a very long time as well
as people who had seen him naked (some of the images shown to the
witnesses were of the adult male when naked). The following witnesses

gave such evidence:

Mr GH, who had known the accused for 30 years,
Ms Ann Shaw, who had known the accused since 1975 and was
either in a relationship with him or married to him for 16 years,
Ms Margaret Aldridge, who met the accused in 2002, was in a
romantic relationship with him for 2 ½ years, and after a break
remained friends with him until his arrest,
Mr Adam Kloens, who knew the accused many years ago but
who had had no contact with him for some time, and
Ms Camille Kloens, who was in the same position as her husband
Adam.

82 In addition to those 5 witnesses, Ms GW, who first met the accused in 1996 and was in a de-facto relationship with him for 3 years, recognised both herself and the accused in still images taken from a video which was

also part of exhibit 83. And DW, a long term friend of the accused, also
recognised the accused in stills taken from a video showing her dressed as

a schoolgirl and having consensual sex with him.

83 Secondly the Crown called evidence from police officers. They gave accused and the voice of the adult male through repeated exposure. It was the evidence of those witnesses that they could identify the adult male as the accused through both his appearance and his voice.

evidence that although they did not know the accused before his arrest,
they had become familiar with his appearance since then, both in real life,
and as he appeared in an ERISP video, and in handycam videos of the
accused at karaoke performances (both of which recordings I did not see).
84 Thirdly the Crown asked me to perform my own assessment and
compare the appearance of the accused in court, with the appearance of

the adult males in exhibits 82, 83 and 84.

85 None of the witnesses in either the first or second categories I have experience here, is sometimes difficult to admit that you are wrong and that a conclusion initially reached is not necessarily the correct one. The second specific matter which affects any conclusion I might draw is the problem identified with any dock identification.

mentioned above would admit to any doubt at all as to the correctness of
their acts of identification. The honesty of their expressions of opinion are
not challenged by the accused. He accepts that those witnesses genuinely
believe that they have not made a mistake. What I have to consider is the
possibility that they have made a mistake. I have to be very careful because
evidence given by honest identification witnesses can have a seductive
quality. Because such witnesses are, as in this case, giving honest evidence,
what they say can appear to be more powerfully persuasive than it truly is.
86 I have also to apply a similar scepticism to any conclusion that I might
draw. I have to consider also whether I might be honestly mistaken in any
conclusion I reach. There are two further factors which affect me which do
not affect witnesses in the first and second category I have set out above.

Specific matters concerning the identification evidence

87 As well as the general problems with identification evidence which I have
already mentioned, the identification evidence in this case was affected by

a number of specific matters.

88 Firstly most acts of identification were performed by the witness looking
at still images, although on a few occasions witnesses were shown short
extracts from videos and asked whether they could identify particular
people in those videos. It is much harder to identify a person from a
photograph, or even a moving video, than it is to identify a person in real

life.

89 Of course this difficulty does not arise as far as far as count one is
concerned because Ms LW1 was not identifying the man molesting her
through photographs or videos – instead she was with the man for some
time on each occasion and had a good opportunity to determine whether
the man who was molesting her was the accused whom she had known for
many years.

90 The second specific difficulty which arises in the case of counts 2 - 119 is that the images, whether video or still, were certainly not of award winning standard. The video images appear to have been degraded, and taking still images from those videos appeared to involve a further loss of quality.

91 Thirdly some witnesses identified images which were in black and white

rather than colour.

92 Fourthly, the circumstances in which images were shown to some
witnesses were much less than ideal. For example GW gave evidence by
way of video link and when the Crown wanted to show her the two
photographs taken from the video I mentioned earlier, GW had to view
those images over the audio/visual link. This involved a police officer
standing on a chair in the dock holding up the particular images in front of

the video camera which was transmitting pictures to GW.

93 Fifthly, I turn to one of the most significant matters concerning the
identification of the accused as being the adult male in the video files by
witnesses who were shown still images taken from those video files. It
concerns the circumstances in which those witnesses were asked to express
their opinion. The witnesses clearly knew that the accused had been
arrested for child sexual assault matters. They clearly knew that they were
going to be asked whether they could identify the accused in material
shown to them. In some cases the first photographs shown to them were
definitely of the accused, taken of him by police either at the time of his
arrest or from his ERISP. In those circumstances there would be a natural
tendency on the part of the witnesses to identify photographs of a person
who merely looked like the accused as being the accused.
94 A further problem affecting the evidence of such witnesses is that they
were only shown photographs of the one person (the Crown case) or two
people (the defence case) with no other images known by police to be of
people unrelated to this case used to test the ability of the lay witnesses to
correctly select photographs of the accused from a number of males of
similar appearance.
95 Sixthly, I turn to a matter concerning Sgt Tinney. He gave evidence that
he was able to identify the adult male as the accused through both his
appearance and voice. His opinion as to the identity of the adult male
suffers from the fact that at the time he gave his evidence he never had
face to face contact with accused until quite recently, by which time the
accused had grown a full faced beard. On the other hand he has viewed
images of the accused on the ERISP tape two or three times and his
repeated viewing of exhibits 82, 83 and 84 discs puts him in a good position
to be able to compare the male person on the ERISP tape (which obviously
shows the accused) with the male person in exhibits 83, 84 and, of much

more importance of course, 82.

Voice Identification

96 I should also mention some extra factors which arise where voice

identification is relied on, as it is in the present case.

97 The dangers of accepting visual identification are also present in the that people are regularly able to correctly identify the voices of those familiar to them.

case of voice identification. Mistakes regarding the identification of someone
by their voice are known both to me as a lawyer and me in every day life.
98 Voice identification presents particular problems over and above those of
visual identification. Most people, and most witnesses, are able to describe
in words particular features of a person’s appearance which they have used
in identifying that person. Thus their opinions as to the identity of the
person they see can be tested through cross-examination. However when
describing a person’s voice most people, perhaps linguists aside, are forced
to resort to generalities - making the testing of their opinions much more

difficult.

99 As it turns out I did not rely on any aspect of voice identification in this

case.

Conclusion Regarding Identification Evidence Warning

100 So the weight to be given to the identification of the accused as being
the adult male in exhibit 82 (counts 2 – 119) and as the adult male who
molested Ms LW1 in the period following her tenth birthday (count 1) is
affected by the specific matters arising in this case which I have mentioned
above as well as the general problems relating to identification evidence
which are present in any case in which the Crown relies on such evidence. I
have borne both these matters very firmly in mind in determining whether I

am satisfied beyond reasonable doubt that the accused is guilty.

101 I have also kept in mind that multiple separate acts of identification do
not guarantee that the accused has been correctly identified. As I have
explained, the accused has been identified as being the adult male in
exhibits 82 and 83 by a large number of people. But it must be remembered
that that adult male is either the accused (the Crown case) or someone who
looks so like him that the witnesses are mistaken (the accused’s case). In
those circumstances I have to consider the possibility that the various
witnesses have just made the same mistake.
102 On the other hand the identification of the accused as being the adult
male is confirmed by a significantly large number of other aspects of the

evidence which I will set out below.

My Identification of the Accused as being the Adult Male.

103 I will now discuss my assessment of the appearance of the accused in
court as compared with the adult male (or males of course) whom I have

seen:

abusing children on exhibit 82
having consensual sex with adult females in exhibits 82 and 83,
and

in social settings in exhibit 84.

104 When arrested the accused was clean shaven, but for the first 4 days of
the trial before me he had a large bushy beard covering a substantial
portion of his face. This of course limited my ability to compare the
appearance of the accused in court with the appearance of the adult male in
exhibits 82, 83 and 84. However this did not prevent me from drawing some
conclusions. In particular the accused’s eyes, and the area of his face
surrounding his eyes remained visible to me. I was able to compare what I
could see with the eyes and the area around the eyes of the adult male on
the DVDs. I was satisfied that I could discern no difference at all between
the area of the accused’s face which I could see and the same area of the

face of the adult male in the DVDs.

105 Part way through the trial the accused shaved his beard off so that I
could see his full face unhidden by any facial hair. In court, I saw the
accused’s face from all angles during the trial over a lengthy period. He
gave evidence over a number of hours and my attention was focused on
him for that period. Whilst in the witness box he was quite close to me, and
although he was usually facing the bar table, and thus I saw mainly his left
profile, on occasions he turned to face me, especially when I asked him

questions to clarify his evidence.

106 Because the man in the DVDs is, on occasions, naked, at my request
the accused showed me his bare chest and stomach area. He had fairly

sparse hair from his chest to his belt line.

107 The playing of the discs in exhibit 82 and 83 took some time, even
though large parts of the discs were skipped with the Crown and Mr Young
for the accused content for me to rely on the descriptions of the contents of
the discs – exhibit 81. However, appropriately, the Crown did play to me
significant portions of the discs, in particular those portions which could be
used to assist me to determine the identity of the adult male. On many
occasions the face of that person was occupying most of the screen, such as
when he was close to the camera or when the camera was zoomed in. I
therefore became very familiar with the face of the adult male. I also

became familiar with his chest and stomach area.

108 Further, the videos were recorded over a significant number of years.
The same children appear on occasions and the change in their appearance
as they aged suggests that I was seeing the face and body of the adult male
at different times of his life.
109 I therefore consider that I was able to become quite familiar with the
appearance of the adult male in the video recordings. On the other hand I
certainly did not engage in the repeated viewing that the police officers who
prepared exhibit 81 undertook. I can say however that my viewing enabled
me to draw what I believe is an accurate and reliable opinion as to the
fundamental issue in this trial, namely was it the accused who was the adult
male shown abusing children in exhibit 82?
110 In court the accused’s hair was combed differently when compared to
both the adult male in exhibit 82, and the male as depicted in the social
videos exhibit 84, nevertheless, despite this difference in hair style I can tell
that the accused as he appears in court has the same male pattern

baldness as the adult male in exhibit 82.

111 After shaving off his beard I also saw the cleft in his chin which had
been apparent on the face of the adult male. There were many other
features of the accused’s face which matched the face of the adult male,
which I have not specifically mentioned. What is more important than my
ability to describe the similarities is the similarities themselves, which are
immediately apparent when a comparison is made between the accused
and the adult male in exhibit 82.

112 On my assessment, the similarity between the accused and the adult male shown abusing children in exhibit 82 was immediately apparent, that similarity being such that, allowing for the passage of time, the accused and

the adult male were identical. Although I primarily relied on the identical facial appearance, I should also mention that the torso of the accused is identical to the torso of the adult male.

The identity of the male in Counts 2 - 119

113 So, as far as the identification of the accused is concerned I have:

My assessment of identical appearance of the accused in court (making allowances for the passage of time and the change in hair style) and the adult male in exhibit 82,

The evidence of those 5 people who knew the accused well over
many years who recognised him as being the adult male in
exhibit 82,
The evidence of the police officers who recognised the accused
in exhibit 82 from their repeated interaction with either him or
video recordings of him, and
The common acceptance of the parties that it was the same
man depicted in every one of the videos relevant to counts 2 –
119.

114 I also take into account the sworn evidence by the accused in which he denies that he did what the video recordings depict, and that just because I didn’t believe him when he gave evidence about the note on the envelope, or when he gave evidence of GH taking something to the police after they argued over money, that does not mean that I should reject everything the accused said.

115 Even taking into account the accused’s sworn evidence and the
warnings I have discussed above concerning identification evidence, I am
absolutely certain, well beyond any reasonable doubt, that the accused has
been correctly identified as being the adult male in those videos which form

the basis for counts 2 – 119 in the indictment.

Count 1 on the Indictment

116 Let me turn to count one. Ms LW1 gave evidence that the accused had repeatedly committed various forms of sexual assault upon her over many years. For reasons which I will now explain, count one focused on that

period of LW1’s life between her tenth and thirteenth birthdays. Count one

alleges an offence of ongoing sexual abuse of a child under section 66EA

Crimes Act. That section requires that the Crown proves three or more

different incidents occurring on different days. Any incident which is the the subject of other proceedings and can be taken into account when determining whether count one has been proved beyond reasonable doubt.

subject of other proceedings cannot be taken into account in determining
whether the offence under s 66EA has been proved. The Crown case was
the videos which showed LW1 did not show any sexual abuse of her after
she turned ten. I accept that that is the case based on the appearance of
the complainant in the videos as well as the evidence of her mother, Ms DW.
117 There was no challenge to LW1’s evidence that she had been sexually
assaulted on a number of occasions after her tenth birthday. What was
challenged was whether that was the accused.

118 I am satisfied beyond reasonable doubt that LW1’s evidence should be accepted when she nominated the person who was sexually abusing her as the accused. Even if, as the accused suggested in his evidence, there exists in the world a person who looks so similar to him that even he, the accused, cannot identify from photographs and videos whether it is he or that other

person depicted in the images, it is fanciful to suggest that LW1 might make
a mistake about who was sexually assaulting her. After all she had known
the accused for many years and was not identifying him merely through
photographs. She was able to work out who was sexually assaulting her at

the time it was occurring.

119 The other significant matter the Crown needed to prove beyond about the nature of questions asked of them, focusing as they did on what would appear to be an arbitrary distinction between the events of LW1’s life before she was ten and the events after she turned ten. It has to be said also that their evidence was in some respects contradictory but I don’t have to be satisfied beyond reasonable doubt exactly how many times it occurred. All I have to be satisfied beyond reasonable doubt is that it occurred three or more times on separate days. That is a low number indeed given the nature of the evidence adduced by the Crown. I note also an appropriate concession by Mr Young. I am satisfied beyond reasonable doubt that relevant acts occurred on at least three occasions on separate days. Indeed it is most likely that the correct figure exceeds double figures.

reasonable doubt was that relevant acts occurred three or more times since

120 I am able to find the accused guilty on count one without resorting to any tendency and coincidence evidence which I will discuss in more detail later in this judgment. However I should say at this stage that such

evidence was powerfully probative of the accused’s guilt in any case. I have before her tenth birthday. That strongly suggests that LW1 has correctly remembered that it was the accused who sexually assaulted her after her tenth birthday

seen him sexually abusing LW1, before she was ten in various ways. The
accused demonstrated a clear tendency to sexually assault a particular
person and there is no reason at all to think that the accused would act
differently after LW1 turned ten. For reasons I have explained elsewhere in
this judgment I am satisfied beyond reasonable doubt that it is the accused
who has been correctly identified in all the videos to be found in exhibit 82.

Count 120 on the Indictment

121 Count 120 is an allegation of possession of child pornography. It
concerns the videos which form the basis of counts 2 to 119 as well as
another video entitled, eloquently of its contents, “Kiddie Porn”. Those
videos were all in the same location and, as I have found, almost all of
them, apart from the one entitled “Kiddie Porn”, depicted the accused
performing sexual acts upon a child. The video files which relate to counts 2

to 119, and the video file entitled “Kiddie Porn” are clearly “child

pornography” as that term was defined at the relevant time.

122 The accused denied ever being in possession of any of the discs handed
to police by GH, but given that what is depicted on those videos is serious
criminal activity which would lead the perpetrator of the crimes to spend a
very lengthy time is custody, (a matter recognised by the accused when he
told GH that his actions had given him a “life sentence”) the number of
people whom the accused would have allowed to possess such items is

limited indeed.

123 I accept GH’s evidence beyond reasonable doubt that the discs were in
the possession of the accused when he took them from his bedroom and put
them in the garbage bin while the police were looking for the accused

downstairs. In this regard I take into account the writing on the envelope

“DISCS IN BIN” which is clearly a reminder to the accused of what he had

done.

Access to the children

124 Of course the accused could not be guilty if he did not have access to
the children depicted in Exhibit 82, that is, if he did not have the
opportunity to do what the various videos depict the adult male doing. But
the evidence clearly establishes such access. This evidence is also relevant
to the accused’s assertion that the person who has really been filmed
abusing the children is David Haines. It would be a remarkable coincidence
if Mr Haines had access to the same children to whom the accused had
access – especially given that some of the mothers of these children
specifically denied knowing anyone of that name.

125 I have taken the following outline from the Crown’s final address which accurately summarised the evidence and which was not contradicted by Mr Young in his address. The identity of the children, with one exception

relating to Count 28, was either admitted by the accused or proved by oral
evidence, supported by the names written on the discs in exhibit 82 (for

example the name “TW” is written on disc 7 in exhibit 82).

LW3

126 The accused had access to LW3 through his flatmate, GH. GH was in a relationship with KW, LW3’ mother, from approximately 2001. The accused moved in with GH to Xxxxx Road in approximately 2003. It was through

Xxxxx Road, Camden and GH that the accused had access to LW3, as KW would visit with her two younger sons, NW and LW3. The accused then formed a friendship with LW3, and LW3 would visit Xxxxx Road at least once a week. Ms KW gave evidence that she would leave LW3 in the accused’s care about once or twice a week, sometimes for six to seven hours at a time and sometimes overnight.

NW

127 The accused had access to NW in the same way that he had access to NW’s brother, LW3. GH gave evidence that NW would spend time with the accused. KW also gave evidence that she would leave both LW3 and NW in the accused’s care, but that LW3 tended to go to Xxxxx Road more

frequently than NW.

LW1 and LW2

128 The accused had access to LW1 and LW2 through his friendship with occasion.

their mother, DW. DW first met the accused around the time LW1 was born.
DW gave evidence that she had known the accused for 15 years and classed
him as a ‘family friend.’ She gave evidence that from 2000 to 2008 she had
a close friendship with him and that he babysat her children, LW2 and LW1,
at both her place in Cartwright and his place in Camden. GH also gave
evidence that the accused maintained a relationship with DW while living in

129 DW, LW1 and LW2 also stayed with the accused and his then partner, GW at Xxxxx Place, Ingleburn for a few months in approximately 2000. DW gave evidence that on some occasions over this period she left her children with the accused.

130 DW’s evidence was that when she would go out to karaoke with the
accused, he would often go back to her house earlier than she would and

that he would then be alone in her house with her children.

HW

131 The accused had access to HW through his relationship with her
mother, GW. GW met the accused in approximately 1996 and formed a
relationship with him. The relationship lasted till approximately 2001, with
the accused residing with GW and HW at Xxxxx Place, Ingleburn for a period

of three years, from 1998 to 2001.

SD

132 The accused had access to children living in Xxxxx Place and the street in Xxxxx Place, Ingleburn with her children and that she would socialize with the accused and GW.

it adjoined, Xxxxx Place, when he was residing with GW at Xxxxx Place,

JK

133 JK’s mother, EK gave evidence that she lived in Xxxxx Place, Ingleburn

and that she was friends with GW.

TW

134 TW lived with her mother, SW at an address in Xxxxx Place, Ingleburn. There is evidence that the accused had sole access to TW on one occasion when he was living at Xxxxx Place, Ingleburn.

135 Video 7 in Exhibit 82 contains a recording of a single incident involving
that child. She must have been only 12 or 13 months old when she was
subjected to the horrible actions which make up counts 29 – 33. That this
occurred when the accused had access to her when he was living with GW is
confirmed by GW’s evidence that she recognised the bed on which these
terrible things occurred as being hers.
Access to locations

136 Similarly to the issue just discussed concerning the accused’s access to the children, the accused could not be guilty if he did not have access to the various locations depicted in Exhibit 82. But the evidence clearly establishes such access. And once more, in considering the accused’s case that the real perpetrator is David Haines, it would be an astounding coincidence if he had access to the same locations to which the accused has had access.

137 There was evidence in the trial that the accused either lived at, or at
the very least regularly stayed at, three addresses (Xxxxx Road, Xxxxx
Place, and Ingleburn), and that he regularly visited DW's address at

Cartwright.

138 Those 4 addresses are the locations shown in the following DVDs in Ex

82:

Xxxxx Road: DVDs 1, 2, 3, 11, 12, 13, (part of) 14, 15, 16, 17, location.

(part of) 18, 20, 21, 22, 23, 24 and 25 were filmed at this
location
Xxxxx Place, Ingleburn: DVDs (part of) 4, 7, 8 and (part of) 18
were filmed at this location
Xxxxx Place, Cartwright: DVDs 9, (part of) 14 were filmed at this
location

139 As far as the Xxxxx Road address is concerned, the accused may have
changed the address on his driver’s licence in early 2008, but he still had
mail addressed to Xxxxx Road, he still had ready access to the premises,
there is no evidence that he had returned his key (in any case the front door
was rarely locked) and the bedroom which he used was still available to
him. The accused himself gave evidence thatGH’s job kept him away from

the Xxxxx Road premises 4 or 5 times a week.

Other features of the evidence pointing to guilt

140 The findings above regarding every count on the indictment make it
strictly unnecessary for me to explain why there is a great deal of evidence
supporting the accuracy of the conclusions I have reached. But as there was
evidence which overwhelmingly demonstrated, independent of the
identification evidence, that the accused was guilty, I will discuss some

aspects of that evidence.

141 I have not mentioned all the incriminating evidence which the Crown
has relied on. For example I have not found it necessary to refer to
allegations that the accused harmed himself, or GW’s evidence that the
accused hid an incriminating VHS tape from her, or the contents of speaker

boxes found in the shed.

142 In my view the case against the accused had been proved beyond
reasonable doubt by various other aspects of the evidence which I have not
yet mentioned, or referred to only in passing. In particular, as I will discuss
below, Ms DW and Ms GW gave evidence that the man shown having
consensual sex with them was the accused, and given the intermingling of
those videos with videos showing a man who looks identical to the accused
sexually molesting a number of children, I would be satisfied on this
evidence alone of the accused’s guilt. There is also the discovery of
incriminating items, especially those found in the accused’s bedroom.
143 However as I have just said, I have not mentioned all the evidence
against the accused in this judgment. I have mentioned enough to explain
why it is that I am more than satisfied of the accused’s guilt beyond
reasonable doubt and to explain how that view has been reinforced time
and time again when various aspects of the evidence are considered. Given
the extent of the evidence against the accused it was simply not necessary

to mention all the evidence which points to the accused’s guilt.

144 The case against the accused is like an over-engineered bridge
constructed of high strength steel. Even if some pillars of the Crown case
are rejected, the case remains one in which the guilt of the accused is
proved beyond reasonable doubt. And in some areas of evidence, even if
the Crown case was based on that area of evidence alone, the guilt of the
accused remains clear, just as a perfectly safe bridge can be constructed
from a single but very strong beam.

145 With those remarks out of the way let me turn to a consideration of the evidence other than the evidence of visual or voice identification. As I do so it will be necessary for me to repeat, and expand on, aspects of the

evidence which I have already mentioned.

The Significance of Other Videos

146 Mixed in, in two senses as I will explain, with the DVDs showing the
adult male abusing children (exhibit 82) were videos showing consensual
sexual intercourse between an adult male and adult females (some videos
were on discs in exhibit 82 and some other such videos became exhibit 83).

Two of those adult females gave evidence.

147 The videos depicting the adult females having consensual sex with the
adult male were mixed in with the videos which show the adult male
sexually abusing the children in the following ways. Firstly it will be recalled
that GH handed to police a large number of DVDs in a plastic bag. Some of
those DVDs did not contain any videos of the adult male abusing children
but did contain videos of consensual sex between adults. Secondly some of
the individual DVDs had on them both video files showing the adult male

abusing a child and video files showing consensual sex between adults.

148 The Crown tendered, and played portions of, a number of those videos
showing the accused having consensual sex with adult females. Some of
those females could be identified and two of them gave evidence identifying
both themselves and the person with whom they were having consensual
sex. The Crown argument was that, if it is accepted that the adult male
having consensual sex with the adult females is the accused, then there are
a number of features of those videos which tend to suggest that the adult
male shown committing the many offences involving the sexual abuse of

children is also the accused.

149 Let me first determine whether the adult male having consensual sex
with the adult females is the accused and then return to the features of
those videos which tend to suggest that the adult male shown committing
the many offences involving the sexual abuse of children is also the
accused.
150 I am overwhelmingly satisfied that the adult male shown having
consensual sex with the adult females is the accused for the following
reasons:

151 Ms DW gave evidence that she had had sex with the accused on one occasion. Her evidence was that the accused videoed them, scripting and directing the action. She was then shown a series of still photographs taken

from exhibit 82. I had previously seen the video which showed a man
dressed as a school teacher, and a woman dressed as a school student,
performing what appeared to be consensual sexual activity. DW identified
the female as herself and the male as the accused. That aspect of her
evidence was challenged very faintly, with the cross examiner asking her if
she was sure she was correct when she said that the male person was the

accused. She said that she was.

152 The accused did not admit that he was the male person in that video,
but nor did he deny it. He said that it might have been him even though he
had no memory of participating in such a sexual encounter. That the
accused was unable to categorically deny or admit doing what the video
depicts the adult male doing is somewhat surprising given what, to me at
least, appears to have been a memorable activity. On the other hand, this is
one area where a jury of 12 people might have had a better idea of how

unusual, and therefore memorable, such activity is.

153 It is important to understand the significance of DW’s evidence. This is it was the only time that she had sex with the accused and she participated by playing role of a school girl having sex with her teacher because she had been promised that the video of the encounter could be sold and she needed money to pay for school excursions for her children. She knows it was the accused in the still photographs because it was him with whom she had the consensual sex depicted. Especially given the nature of the challenge to her evidence on this aspect, and the accused’s somewhat muted response, I have no hesitation at all in accepting that DW was right when she said that the people in the video recording were her and the accused.

not a case where DW is merely comparing the appearance of the man in the
stills taken from the video with her memory of what the accused looked like.
154 The video recording then becomes significant for another reason. The
video of DW and the accused having sex appears in one of the videos in
exhibit 82, immediately before a video showing an identical male person
sexually assaulting a child. In those circumstances the conclusion that it is
the same male person having sex with DW and sexually abusing the child is
almost inescapable. This means that DW’s evidence is powerful, indeed
almost overwhelming support for the Crown case that the accused is the
adult male depicted in exhibit 82.

155 But there is more. As I said earlier, two women shown having sex with the adult male gave evidence. The second was GW. GW was shown exhibit 113. This consisted of two still images showing an adult female and an adult

male having sexual intercourse. Although there were difficulties in showing the photograph to GW because she gave evidence by way of video link, she was able to identify the people in the photograph as being herself and the

accused. She relied, not only on the appearance of the people, but of course also on her memory as to the adult men with whom she had had sex with in the past. Once more this is not a case where GW is merely comparing the

appearance of the man in the stills taken from the video with her memory of
what the accused looked like because GW was able to use her memory of
her past life in saying that the person shown having sex with her is the

accused.
156 I accept that the person shown in the videos having sex with DW and
GW was the accused. Given the identical appearance of the adult male
having consensual sex with GW and DW when compared with the adult
male having consensual sex with other adult women in exhibit 82 and 83,
and given the circumstance that those videos showing the adult male
having consensual sex with unidentified women were in the same location
as videos showing the accused having sex with GW and DW, I am satisfied
that all videos depicting consensual sex between an adult male and an adult

female in exhibits 82 and 83 are of the accused.

157 So, having decided that it is the accused having consensual sex with
adult women in parts of exhibit 82 and in exhibit 83, let me return to a
consideration of the features of those videos which points towards the

accused’s guilt.

158 Firstly there is the similarity in appearance, to the point of being
identical, between the adult male in the videos involving consensual sex
with adult females and the adult male in the videos involving the sexual

abuse of children.

159 Secondly many of the items shown in the videos involving consensual
sex with adult females were similar, again to the point of being identical, to
items later found by police. The fact that he was in possession of such items
during the consensual sexual activity tends to suggest that he was also in
possession of such items at other times. This is a significant matter of
course because some of those items are shown in the videos involving the
sexual abuse of the children. It is important to note that this does not
involve tendency and coincidence reasoning – it is the fact of possession on
one occasion which tends to suggest possession on other occasions. The
tendency and coincidence aspects, that the accused has a tendency to use

such items during sex, are considered later in this judgment.

160 Those relevant items include:

A pink fairy outfit (exhibit 28) worn by the adult male in a video stockings during consensual sex. Similar items can be seen being worn by the adult male in DVDs 1, 2, 8, 12, 18, 21, 22, 23 and 25 of exhibit 82 and by LW3 in DVD 2 exhibit 82.

in exhibit 83 and also worn by LW3 in DVD 21 (exhibit 82).
A black pleated skirt (exhibit 40) worn by DW in DVD 7 and
worn by LW3 and the adult male in exhibit 82.
An item described as a paddle bat (exhibit 97) used during
consensual sex with an unidentified blonde female as well as
DVDs 13, 14, 16 and 18 in exhibit 82. Ms GW gave evidence of
using a ‘paddle bat’ during consensual sex with the accused.
A black mask is worn by the adult male in a video in exhibit 83,
during consensual sex with an unidentified blonde female. A
similar item is worn by the adult male in DVDs 1, 2, 8, 12 and 22
of exhibit 82 and by LW3 in DVDs 2 and 21 of exhibit 82. GW
gave evidence of wearing a ‘cat mask,’ provided by the
accused, during consensual sex with him.
A black body suit is worn by the adult male in a video in exhibit
83, during consensual sex with an unidentified blonde female. A
similar item is worn by the adult male in DVDs 2, 3, 8 and 15 of
exhibit 82 and also by LW3 in DVDs 1, 2 and 3 of exhibit 82.
Black high heels are worn by the adult male in videos in exhibit
83 showing consensual sex with an unidentified blonde female.
He is also wearing black high heels in DVDs 3, 12, 15, 21, 22, 23
and 24 in exhibit 82.

Tendency and Coincidence Evidence

161 If necessary, the Crown relies on tendency and coincidence evidence in
four particular ways. I say, “if necessary” because the Crown submission
was that I would find the accused guilty on every count without needing to
resort to any tendency and coincidence reasoning. That has proved to be
the case. Nevertheless, the tendency and coincidence aspects of the case
also point powerfully to the accused’s guilt so it is appropriate that I

mention them.

162 The four areas of evidence are these:

Firstly, the Crown says that if I am satisfied beyond a reasonable doubt that the adult male has been correctly identified as the accused in any one video then I can use tendency and coincidence reasoning in considering whether

the accused is also the person in the videos where the identity of the adult

male is less easy to discern.

163 The second way in which the Crown suggests I should use tendency
and coincidence reasoning concerns count one on the indictment. There is
no video of an adult male sexually assaulting LW1 after her tenth birthday,
but count one focuses on the period between when she was ten and when
she was thirteen. The Crown says that if I am satisfied beyond reasonable
doubt that on the videos to be found in exhibit 82 I see the accused sexually
assaulting LW1 before she turned ten, that is significantly probative of the
question as to whether it was him who was later sexually abusing her after

she turned ten.

164 The third way the Crown seeks to use coincidence and tendency and the adult females shows a tendency on the part of that adult male, to film sexual encounters, to dress up in clothing, and perform other unusual sexual practices and that therefore, that tends to suggest that the adult male shown having consensual sex with adult females is the same as the adult male shown sexually abusing children.

reasoning concerns the circumstance that, mixed in with the videos showing
the adult male sexually abusing children, are videos showing an adult male
having apparently consensual sex with a number of adult females. The

165 The final way the Crown seeks to rely on tendency evidence concerns a particular way in which he treated HW. She gave evidence that at one stage she was hogtied by the accused. On one of the DVDs, RH is shown hogtied

with other children around her. This is not a video in which any sexual coincidence reasoning would suggest it is more likely that the person who was doing that filming was the accused.

assault occurs but it is on a disc which has child sexual assault videos also
on it.So the process of reasoning is this; the accused has a particular
tendency to have children hogtied for innocent amusement, a person filmed
166 I should say at this point, that as the current view of the Court of
Criminal Appeal is that tendency and coincidence evidence must, at least in
sexual assault trials, be proved beyond reasonable doubt, I must determine,
to that high standard, whether I accept the evidence which the Crown relies
on for tendency and coincidence purposes.
167 Not only do I accept the tendency and coincidence evidence beyond
reasonable doubt, but, for reasons which are obvious, that evidence points
strongly to the accused’s guilt.

Handwriting

168 The writing on the disc covers and the discs themselves in exhibit 82 is
similar to writing which is undeniably the accused’s on many pieces of
paper in handycam tape cases recording karaoke performances (exhibits
101 and 102). It is similar in style and layout and was identified as looking
like the writing of the accused by someone who had known him for 30 years,
namely GH. Whilst this evidence would clearly not of itself establish the guilt
of the accused beyond reasonable doubt it significantly supports the Crown
case. In particular the way the letter “T” is written on both the discs and the
handycam labels is distinctive with the base of the vertical part of the letter

having a distinct upwards turn to the right.

The adult male in exhibit 82 is called “Dave”

169 On a number of videos in exhibit 82 the adult male is referred to by the

name “Dave”. For example, on DVD 2 the child says “what’s that yellow

sign there, Dave?” (this is not transcribed in exhibit 81 but is clearly heard).

The adult male is also addressed by the name Dave in videos connected with counts 48, 65, 66, 67, 87, 90. Of course the person nominated by the accused as being the adult male in exhibit 82 is also called “David” but I simply do not accept that such a person exists or, if he does exist, that he can be the adult male in any of the video recordings in exhibits 82, 83 and 84(see the discussion below regarding the two “Eddys”)

Particular evidence regarding it being the accused in exhibit 84

170 It will be remembered that exhibit 84 consists of videos showing social
situations in which there is an adult male who looks identical to the adult
male in videos showing child abuse. The accused was not prepared to admit
that he was the adult male shown on that video in exhibit 84 which was
entitled “L’s first birthday”. This was consistent with his evidence that he
and David Haines were so alike that even he could not tell whether the
video showed him or Mr Haines. However I have no hesitation at all in
accepting that it was the accused in exhibit 84 because of LW1’s evidence,
unchallenged, that it was the accused videoing her sister L at her first
birthday which prompted her to complain to Ms H about what the accused
had been doing to her, and which led, in turn, to this very trial. Ms LW1 said
that the accused was videoing L at her first birthday, I saw such a video
where I observed a man looking identical to the accused and therefore I am
satisfied, in fact satisfied beyond reasonable doubt, that it was the accused
in exhibit 84.

171 Another video in exhibit 84 was called “Phil’s Place”. Not only does the adult male in that video look identical to the accused and to the adult male in exhibits 82 and 83, but exhibit 102 (photographs of handycam tape

labels written by the accused) contains an entry “Phil’s Place + Kids

29.5.05”. A similar thing can be said about the video entitled “Christmas 1984” which shows Christmas Day at Ms DW’s place and the handycam

label, written by the accused, “2004 Xmas at DW’s”.

172 So there is clear evidence that the person who looks like the accused in
exhibit 84 videos is in fact the accused. That circumstance again points to
the accused’s guilt because of the identical appearance of the men in
exhibit 84 and exhibit 82, as well as the fact that those videos were kept
together in the one location.

Ms EK sees the accused making one of the videos

173 Ms EK gave evidence that on one occasion she went into Ms GW’s
kitchen and saw the accused on the floor filming the genital area of SD. The
circumstances in which she said that occurred were such that there might
be difficulties accepting her evidence except for one thing - I saw on exhibit
82 a video apparently filmed in Ms GW’s kitchen of SD in which her genitals
are exposed. In other words I saw a video, as part of exhibit 82, which

appeared to be the very video Ms EK said she saw the accused making.

174 It is important to understand that Ms EK told police about the incident
in Ms GW’s home before she knew that there was a video in existence of SD
taken in the kitchen at Xxxxx Place with her genitals exposed. Not
withstanding the unlikelihood of the accused doing what Ms EK said she saw

him doing, I accept that he did because I have seen the results.

Items linked to the accused are seen in exhibit 82

175 On many of the videos in exhibit 82 the doona cover which police found
on the accused’s bed can be seen being used as either a back drop or floor

covering.

176 On some of the videos showing the adult male sexually abusing
children, it can be observed that at the same time he was playing on a TV a
video showing adult pornography. A large collection of adult pornography
(both photographs and videos) was found by police during their search of
the accused’s bedroom (visible in the search warrant video exhibit 86) and
witnesses confirmed, without challenge from the accused, that he
possessed such material.

177 Highly incriminating items, including objects shown or used in the relevant videos, were found by police in the accused’s bedroom. Other items were found elsewhere in the premises, but nevertheless the accused

acknowledged an association with them.

178 More than 20 items of clothing, material or other paraphernalia were
found in his bedroom that are indistinguishable from items used during the
course of the sexual abuse as seen in exhibit 82.

179 An even greater number of items of clothing, material or other paraphernalia were found in the brown suitcase which the accused acknowledged belong to him. The accused has acknowledged that most of

these items had, to his knowledge, come into his home at Xxxxx Road.

180 The accused has acknowledged that the vast bulk of the 70 items found
in and around Xxxxx Road, the vast majority of which can be seen in the
child abuse videos in exhibit 82, either belonged to him or had been left at

Xxxxx Road by one of his former ladyfriends or partners.

The Two “Eddys”

181 At the beginning of the trial, after GH had identified the accused as
being the person in stills taken from exhibit 82, he was shown a handycam
tape in cross-examination. It depicted, amongst others, the accused and
another man. From other cross-examination we learnt that it was to be
suggested that that other man was known as “Eddy”. GH was asked what
he would say to the proposition that the person in stills taken from exhibit
82 was in fact Eddy. He said “no I don’t think so”.
182 Similar suggestions were made to other prosecution witnesses who had
identified the accused in stills taken from exhibit 82 and 83. It appeared to
be part of the accused’s case that he had been misidentified as Eddy, and
that the person who was shown in the various videos abusing various

children was not him but the “Eddy” shown in the handycam tape.

“Eddy”

183 On day 6 of the trial was called to give evidence. It turns out years ago. His evidence was that at the time that he knew him they shared a similar hairstyle and in fact on occasions he had been mistaken for the accused from behind. Importantly however, his evidence was that he had never been mistaken for the accused from front on due to the differences in their facial appearances.

that his real name was Adam Kloens but he was known almost universally as
184 I was able to see for myself what Mr Kloens looked like both now and in
the video tape of him taken many years ago. The accused and Mr Kloens

look, and looked, very different indeed.

185 Given the significance of the identity of the person shown in exhibits 82 the children shown in exhibit 82 and he said that he found the suggestion that he had sexually abused them as abhorrent. Mr Kloens gave evidence that he had not had sexual intercourse with either DW or GW. He also gave evidence, supported by his wife, that he had never been known as “Dave” or called “Dave”. Neither he nor his wife were cross examined to the contrary.

and 83 having sex with adult women known to the accused, Mr Kloens was
asked by the Crown what he would say to the suggestion that he had filmed
himself having sex with DW and GW and spliced films of himself having sex
with those women in amongst some child abuse tapes. Not surprisingly Mr

186 It was after this evidence that the accused gave evidence. He said that as soon as Mr Kloens entered the Courtroom he realised that he had made a mistake. He said that he now realised that the handycam tape did not show the Eddy whose real name was Adam Kloens, but showed instead another

person (coincidentally also with the nickname “Eddy”) whose real name was

David Haines.

187 I have already mentioned the very limited information which the
accused was able to give about Mr Haines, but it is worth repeating that
despite apparently being intimately involved in about every aspect of the
accused’s life for 15 years, there are, according to the accused, only four
persons whom he can name who have ever met Mr Haines. Three of these
are deceased, and the fourth is his mother who has a heart condition which
precludes her coming to court. Of course this is a particular area where the
accused was operating under a forensic disadvantage which I have kept in

mind.

188 But some aspects of the accused’s evidence were unaffected by the
forensic disadvantage. Despite being intimately involved in every aspect of
the accused’s life for 15 years, the accused was unable to say where Dave
Haines had ever lived or worked and claimed that he never had any
telephone number for him. Despite having plans to set up a business with
Dave Haines, he had no method of contacting him.
189 And despite the accused’s claim that Mr Haines had involved himself
with almost every aspect of the accused’s life not a single Crown witness,
including people who had known him for more than 30 years, one ex-wife
and two ex-girlfriends, gave evidence that they knew Mr Haines. This is
more remarkable given the accused’s evidence that he and Mr Haines
looked so alike that even he could not tell who was in the social videos,
exhibit 84. One might have thought that if one of the accused’s former
friends met his doppelganger, it might have made something of an
impression.

190 It was the Crown case that “David Haines” does not exist, being a fabrication of the accused. On the other hand a business card making reference to “David Haines” was tendered. The Crown case was it could

have been made by the accused whilst in custody, but Mr Young points to
the absence of the limitless resources of the Crown producing evidence that
the accused had access to the relevant facilities whilst in jail.

191 This is one matter which I don’t have to decide. I simply do not need to make a finding whether or not “David Haines” exists. He is either fictitious, or at the very least the accused does not want him found, probably because

if he were found it would prove that Mr Haines looks nothing like the

accused, or that he had limited involvement in the accused’s life, or both.

192 One of the ways of looking at whether the Crown has proved the guilt of
the accused beyond reasonable doubt is to consider whether there is any
rational alternative theory which explains the Crown case in a way which

does not mean that the accused is guilty.

193 The Crown, in his final address, described the accused’s defence as

“manifestly absurd” for the following reasons (which I have edited to take

account of the fact that I have not found it necessary to make some findings

on which the Crown relied):

“This man has somehow managed to do the following:

got access to the 4 premises the accused was living in at
the time without the accused knowing, namely: his
father's house, GW’ house, DW's house and Xxxxx Road,
Camden (the accused has acknowledged the last three
of these premises).
got access to the children of his partners (LW1 and LW2,
HW) or children of his roommate’s partner (LW3 and NW)
or neighbours (SD, TW, K kids) without anyone knowing
sexually abused those children in those premises over a
period of about 10 years and filmed that abuse without
anyone knowing
used 23 items of clothing, wigs, and objects etc during
that child sexual abuse that are identical to clothing,
wigs and objects that were found by police in the
accused’s bedroom at Xxxxx Road
come to the backyard of Xxxxx Road and hidden the
brown suitcase behind a wall in the neighbour’s yard
with 47 other items that were identical to items used
during the abuse of the children
got access to Xxxxx Road and left all the DVDs in Ex 82
of the abuse of children in the accused’s residence
written on the DVD covers in a very similar writing to the
accused's writing
had sex with the accused’s partner GW and filmed it
had sex with the accused’s friend DW and filmed it
spliced the DVDs of sex with DW and GW onto the DVDs
of child abuse”

Conclusion

194 I am conscious of the fact that the structure of this judgment suggests that I have started with a decision based on the identification evidence and then examined whether other evidence supports the accuracy of that

identification. However I could easily have started elsewhere and used the
evidence of identification to support a finding of the accused’s guilt.
Although it may look as though the evidence of the accused’s identification
is the cake and all other evidence I have referred to is the icing, it could
easily have been that I first discussed the evidence of GW and DW that stills
taken from exhibit 82 and 83 showed themselves having sex with the
accused, and that this alone was enough to demonstrate the accused’s guilt
before confirming my finding by looking at evidence regarding the
accused’s appearance to support the accuracy of that conclusion.

195 What I mean to say is that there are many pieces of evidence which individually would be enough to demonstrate the accused’s guilt beyond reasonable doubt, not simply the evidence regarding identification.

Verdict

196 For the foregoing reasons I find the accused guilty on all 120 counts on

the indictment.

**********

statutory provisions prohibiting publication that may apply to this judgment or decision.