R v Williams - [2023] NSWDC 490

District Court

New South Wales

Medium Neutral Citation: R v Williams [2023] NSWDC 490
Hearing dates: 23, 24, 25 October 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [308] – [309]

Catchwords:
CRIMINAL LAW – trial by judge alone – alleged historical sex offences in late 1970s and early 1980s – two complainants - serial incidents of alleged indecent assault - buggery - Crown reliance upon tendency evidence – lies as consciousness of guilt

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B
Crimes Act 1900 (NSW), ss 97, 97A
Criminal Procedure Act 1986 (NSW), ss 16, 161A, 293A, 294
Evidence Act 1995 (NSW)
Victims’ Rights and Support Act 2013 (NSW), ss 35, 36, 39

Cases Cited:
Arizabaleta v R [2023] NSWCCA 217
DPP v Knight [2006] NSWSC 646
Haile v R [2022] NSWCCA 71
JJB v R [2006] NSWCCA 126
JS v R [2022] NSWCCA 145
Park v R [2023] NSWCCA 71
PWB v R [2011] NSWCCA 84
R v Bauer (2018) 266 CLR 56
Robinson v R (No.2) (1991) 180 CLR 531
Schoffel v R [2023] NSWCCA 88
W v R [2014] NSWCCA 110

Category: Principal judgment
Parties: Rex (Crown)
Karl Williams (accused)
Representation:
Counsel:
Mr B Queenan for the Crown
Ms R Court for the accused
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Benjamin Leonardo – The Defenders (accused)

File Number(s): 2021/330971
Publication restriction: Non-publication of names of complainants and tendency witness

REASONS FOR VERDICTS

Introduction

Mr Karl Williams (the accused) is charged on indictment of the following offences:

Count 1

Between 8 March 1977 and 8 March 1978 at Swansea in the State of New South Wales, he did assault a female, namely KA, who was then under the age of 16 years, namely 8 years and, at the time of that assault, committed an act of indecency upon her contrary to s 76 of the Crimes Act 1900 (NSW).

Count 2

Count 3

Between 8 March 1977 and 8 March 1979 at Swansea in the State of New South Wales, he did assault a female, namely KA, who was then under the age of 16 years, namely 8 or 9 years and, at the time of that assault, committed an act of indecency upon her contrary to s 76 of the Crimes Act 1900 (NSW).

Count 4

Between 8 March 1979 and 8 March 1980 at Swansea in the State of New South Wales, he did assault a female, namely KA, who was then under the age of 16 years, namely 10 years and, at the time of that assault, committed an act of indecency upon her contrary to s 76 of the Crimes Act 1900 (NSW).

Count 5

Count 6

Between 22 May 1978 and 22 May 1979 at New Lambton in the State of New South Wales, did assault a male person, namely, RR (formerly WS) and at the time of that assault, committed an act of indecency upon him, contrary to s 81 of the Crimes Act 1900 (NSW).

Count 7

Between 1 April 1979 and 31 July 1979 at Belmont in the State of New South Wales, did assault a male person, namely, RR (formerly WS) and at the time of that assault, committed an act of indecency upon him, contrary to s 81 of the Crimes Act 1900 (NSW).

Count 8

Count 9

Between 1 April 1979 and 31 July 1979 at Belmont in the State of New South Wales, being a male person, did procure the commission of an act of indecency with another male person, namely RR (formerly WS), contrary to s 81A of the Crimes Act 1900 (NSW).

Count 10

Between 1 December 1979 and 31 January 1980 at Belmont in the State of New South Wales, did assault a male person, namely, RR (formerly WS) and at the time of that assault, committed an act of indecency upon him, contrary to s 81 of the Crimes Act 1900 (NSW).

Count 11

Count 12

Between 1 December 1981 and 28 February 1982 at Blacksmiths in the State of New South Wales, did assault a male person, namely, RR (formerly WS) and at the time of that assault, committed an act of indecency upon him, contrary to s 81 of the Crimes Act 1900 (NSW).

Count 13

On 22 May 1982, at Belmont in the State of New South Wales, did assault a male person, namely, RR (formerly WS) and at the time of that assault, committed an act of indecency upon him, contrary to s 81 of the Crimes Act 1900 (NSW).

Count 14

Count 15

On 22 May 1982, at Belmont in the State of New South Wales, did commit an act of buggery with RR (formerly WS) contrary to s 79 of the Crimes Act 1900 (NSW).

Count 16

After the Crown closed its case, an application was made, jointly between the Crown and the accused, for the Court to direct acquittals in relation to charges 1 (concerning KA) and 7 and 8 (concerning RR). I acceded to that application and, on 25 October 2023 directed acquittals on those respective counts on the indictment.

Elements of the remaining charged offences and interpretation of the elements

Notwithstanding the relative simplicity of the accused’s position, to be elaborated, it is appropriate to tease out the elements of the remaining contested charges. This is necessary for a trial by judge alone even if satisfaction of certain elements of an offence are not disputed and even if the trial judge indicates that the elements have been made out: Schoffel v R [2023] NSWCCA 88 at [74], [79].

The s 76C(1) offence (Counts 2-5)

The elements for this offence are:

the accused assaulted the complainant;

the complainant was a female;

at the time of the assault, the accused committed an act of indecency.

‘Assault’. In order to establish this offence, the Crown must first prove beyond reasonable doubt that the accused by his act assaulted the complainant. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. There is no suggestion in the present case that, if the accused touched the complainant as the Crown alleged he did, the touching was lawful.
‘Act of indecency’. The Crown must prove beyond reasonable doubt that the assault was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in this community. It is for me, as trier of fact to determine the standards prevailing in our community when deciding whether the Crown has satisfied me beyond reasonable doubt that the act alleged in this case was indecent.
For an assault to be indecent it must have a sexual connotation or overtone. If the accused touches the complainant’s body or uses his body to touch the complainant in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent. For example, touching the genitals or anus of a male or the genitals or breast of a female.
The Crown must also prove beyond reasonable doubt that at the time of the assault, the accused committed an act of indecency on the complainant. Although a reading of the charge in the indictment might suggest that the Crown must establish two separate acts, that is, an act that amounts to an assault and a separate act which it alleges was indecent, this is not necessarily so. The Crown can rely upon the same act as amounting to both the assault and the act of indecency. That is what the Crown alleges in this case.
The complainant must also have been a female.

The s 81 offence (counts 6, 10-14 & 16)

The elements of this offence are:

the complainant was a male;

the accused committed an assault upon the complainant;

at the time of the assault the accused also committed an act of indecency upon the complainant.

The expressions ‘assault’ and ‘act of indecency’ have already been referred to.

The s 81A offence (count 9)

The elements of this offence are:

the accused was a male person;

the complainant was a male person;

the accused procured the complainant to commit an act of indecency with another male person.

‘Procure’ is not a defined word. It carries its ordinary meaning. It carries the connotation that the Accused intentionally took steps to ensure something; in this case the particular result that an act of indecency was committed with another male person.
The meaning of an ‘act of indecency’ is described above.

The s 79 offence (count 15)

The elements of this offence are:

the accused committed an act of buggery;

the act of buggery was committed with the complainant.

‘Buggery’ meant penile - anal intercourse with another male.

Directions of law - general

With regard to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW), I will now direct myself as to certain matters of law. In this section of these reasons, I will direct myself as to certain general matters. I will direct myself as to further matters of law concerning the uses or usages of evidence and applicable warnings when referring to the types of evidence referred to by the parties at trial.

Obligation to apply the law

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

Separate consideration of charges

There were two complainants. The first complainant was concerned in charges 1-5 (incl). The second complainant was concerned in charges 6-16 (incl).
It is necessary that I give consideration to the counts individually, bearing in mind that if I were to find that the accused guilty of one of the counts, this does not necessarily mean that he is guilty of all of the counts. The converse applies if I find him not guilty. It is necessary that I consider the evidence with respect to each individual count and reach a conclusion with respect to each count.
The evidence relating to each count may be different and the Court in considering each count is only to consider the evidence that is admissible on each count.
Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

Markuleski direction

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

Impartiality

I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to the complainants, which was manifested at certain points throughout their evidence, sway my judgment. Having regard to the nature of the offences for which the accused is charged, in particular, I must strive to avoid any prejudice against the accused. I must set aside any sense of prejudice, bias or prejudgment against him. Thus, for example, I do not take the circumstance that the tendency witness, AA, obtained compensation against the accused as proof (either because of an order or because of an admission) against the accused in relation to her allegation of abuse as a tendency witness in this trial.

Form of evidence

One of the two complainants, RR and the tendency witness (AA) both gave evidence by CCTV. (By contrast, KA gave evidence in Court). This was standard procedure in cases of this type. I do not draw any inference against the accused or give the evidence of those particular witnesses any greater or lesser weight simply because they gave their evidence in this manner. I assess their evidence in the same way as I assess the evidence of any other witness in the case.

Evaluating the evidence

I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the accused.
I am obliged to consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.
In discharge of her duties to her client and in accordance with rules of practice directed to basic fairness, Counsel for the accused put a number of questions, suggestions or propositions, to the complainants, which were denied. I note that a question, which a barrister asks of a witness, is not evidence itself. It is the answer, taken with the question, that is the evidence. Even where propositions are forcefully or repeatedly put to a witness by an advocate, unless the witness agrees with the proposition there is no evidence, in the exchange of question and answer, that the proposition is true. I am not however, precluded from rejecting a witness’ denial of a proposition where there is reason to do so.
As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I must not act capriciously or irrationally.
Unavoidably, it seems to me, my ‘experience’ is indelibly shaped by my experience and learning accumulated as both Judge and as a legal practitioner before that and necessary exposure to the law. Those occupations expose me to information not frequently encountered by laypersons. To take one example, I am familiar with the judicial view, expressed in JJB v R [2006] NSWCCA 126 per Spigelman CJ at [7], that even at the time of that decision (and prior to the Royal Commission into Institutional Abuse), there was a substantial body of psychological research indicating that children, even very young children, give reliable evidence (a view that was later followed in PWB v R [2011] NSWCCA 84 per Beazley P (as her Excellency then was – albeit in dissent, in the outcome, at [14]-[15). I am familiar with the statement in a unanimous High Court decision that “People of ordinary intelligence and experience are in the habit of questioning the accuracy of childhood recollections. But the likelihood of an adult having a precise recollection of an extraordinary or shocking event that occurred at the age of about four or five years is by no means so improbable that it is bound to be rejected”: R v Bauer (2018) 266 CLR 56 at [66]; another judicial observation not necessarily known by lay people. Another example includes my capacity, where necessary, to ascertain what the law is (for example, requirements for the exercise of statutory rights to bring actions for compensation or damages). It seems to me that when an accused elects to have a trial by judge alone, he must take the trier of fact as he finds him.

Considering the evidence of witnesses

It is for me to assess the various witnesses and decide whether they are telling the truth. I have seen each of the witnesses as they have given their evidence. It is a matter for me entirely as to whether I accept what was said in that evidence.
What I must consider in relation to the evidence of a particular witness, is whether I think it sufficiently reliable such that I can act upon it.
Reliability depends upon two quite different, but overlapping, factors. One factor is the witness’s honesty. The other factor is the witness’s accuracy.
There are many factors that can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. For example, did a particular witness impress me as someone doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive, or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness concede that he or she had lied in their evidence?
Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply to prosecution and defence witnesses alike, for a multitude of different reasons. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’s evidence.
If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to a witness’s accuracy. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.
To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event, or the matter, about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic, or fear, or by an intoxicating substance, such as alcohol, which might have impacted their powers of observation and/or laying down of an accurate memory?
How important to the witness were the surrounding details of an incident, or event, such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence, or parts of the evidence, of a particular witness unreliable?
I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness’ evidence. The fact I do not accept a portion of a witness’s evidence does not mean I must necessarily reject the whole of their evidence. I could accept the remainder of their evidence if I think it is worthy of acceptance.
Ultimately, I remind myself that how I assess what a witness has said, and what weight I give to the witness’s evidence, is a matter for me.

Drawing inferences

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

Burden of proof

For all the counts, in respect to the essential elements of the charges, the burden of proof rests upon the Crown. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. Insofar as the essential elements of all of the charges are concerned, the accused does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

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

Standard of proof – “beyond reasonable doubt”

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

Right to silence

The officer in charge indicated that the accused declined to participate in an ERISP shortly after his arrest after being advised of his rights.
All people in this country have a right to silence. It would be quite wrong if the accused, having listened to what the police said, and having decided to exercise his right to silence, later found that the trier of fact used that fact against him. I must not do that. I bear in mind that the accused’s silence, in that particular respect, cannot be used against him in any way at all. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him.

How the Crown seeks to prove its case

Agreed facts (Exhibit A)

These facts set out background and, in particular the relations or connections between the relevant persons in this trial and their date of births. It is agreed that:

the Accused was born on 24 August 1950;

MS:

is the father of WS;

brother of PA;

the son of JB; and

knew the Accused since they were both children and attended school together for a period of time.

WS changed his name to RR on 29 December 2008.

RR (formerly WS) was placed in foster care when she was very young with her paternal grandmother JB and the latter’s partner GB.

JB died in February 2003.

PA is the mother of:

KA; and

AA

KA and AA are biological sisters.

PA died in September 2004.

The dates of birth of these persons (who are still alive) are:

MS was born on 16 July 1950;

KA was born on 8 March 1969;

AA was born on 4 March 1974;

RR (formerly WS) was born on 22 May 1975.

Although not an agreed fact, KA also gave (unchallenged) evidence, which I accept, that her brother, WA, was born on 10 April 1970.

The complainants’ evidence

KA (charges 1 – 5)

Although I directed an acquittal on charge 1, it remains necessary for me to consider the complainant’s evidence on this charge, and all the other charges concerning her. Amongst other reasons, her evidence on this (and the other charges concerning her) was relied upon by the Crown to support the Crown’s case on tendency evidence to be considered below.

Charge 1

From about 8 years of age, KA lived at Caves Beach. KA knew the accused as ‘Uncle Karl’. She recalled meeting him when she was about 8. He came around to her place once or twice a month. She recalled that he came around to the place to collect Chinese food (and specifically recalled getting fried rice). She said that she and her brother, WA, regularly went with him.
The complainant recalled that at a time when she was 8 years of age, she was in a car driven by the accused, which was white or light-coloured Toyota station wagon. She also recalled that her younger brother WA was also in the car. She recalled that her brother was about 7 years of age.
She recalled that takeaway Chinese food had been collected and the vehicle was travelling home. She recalled a tennis court near a pit road. She said that the accused, who had control of the pedals, allowed her to drive the vehicle, whilst she sat on his lap. She said she was driving slowly.
For this charge, Mr Crown opened on the supposition that the complainant would say that the accused sat her on his lap, for his sexual gratification, with an erect penis. As indicated this allegation was not made out in her evidence.

Charge 2

The complainant recalled being told (by her mother) to go with the accused into a car. This was another time when they went to get Chinese food. She indicated that she was reluctant to go with him. She recalled that WA was present again.
The complainant recalled that she was wearing her yellow ‘Bambi’ pyjamas. She said that the accused used his right hand to touch her vagina on the outside of her pants. This happened for a few minutes, before they went home.

Charge 3

The complainant recalled an incident when she was aged either 8 or 9. Again, she was driving the accused’s car. Her brother was in the car as well. She recalled that the car travelled to a road near at tennis court after having collected the takeaway food.
She recalled sitting on the accused’s knee and, on this occasion, the accused rubbed his erect penis on the outside of her underpants, around her vagina area.

Charge 4

The complainant recalled that when she was 8 or 9 she and her brother were inside the car. She was sitting on the accused’s knee again. This was again near tennis courts after takeaway food was collected. She said the accused put his hands inside her underpants and rubbed her vagina with his fingers in an up and down motion for a few minutes. She also recalled feeling his penis was erect.

Charge 5

The complainant recalled another incident when she was in a motor vehicle with the accused connected with obtaining Chinese takeaway food. On this occasion, she was by herself. She recalled that she was a little younger than 9 years old. She said that she had been made to go with the accused. She believed that the incident occurred when they were returning from the Chinese restaurant.
She recalled sitting on the accused’s knee. She said the accused pulled aside her underpants that she felt the motion of the accused’s erect penis rubbing on her vagina whilst she was steering the car. This was skin on skin contact. She recalled the contact occurred until “it was all wet” in her vagina area.
After she had moved to Gateshead, when she was about 15, she did not see him again.

The Accused’s challenge to KA’s evidence

The accused’s Counsel put to KA that the accused never did anything sexual towards her. KA denied the proposition. There was no challenge otherwise to details of the complainant’s account of what had occurred.

RR (charges 6-16)

RR was born as a biological male with the name WS. The name change occurred in December 2008.
All of the incidents about which the complainant gave evidence occurred when the complainant was named WS and, I infer, on occasions when the complainant was of the male gender. Notwithstanding this, in deference to the complainant’s expressed pronoun preference, for the remainder of these reasons, unless indicated otherwise, I propose to use the female pronoun when recounting this complainant’s evidence of the incidents which the Crown relied upon even though the events she was recounting occurred when she was a biological male.
The complainant recalled being placed into foster care by her mother at an especially young age. The foster carers were her grandmother, JB and GB. She recalled moving homes at certain times. She lived initially and went to school in New Lambton until year 2. She then went to live at Bayview Caravan Park in Belmont, where she lived for 4 years before moving to Chain Valley Bay Caravan Park when 8 years of age.
RR recalled seeing the accused once or twice a week when she lived at New Lambton. She recalled him coming over alone.

Charge 6

The complainant said that there was a swimming pool at her place in New Lambton. She recalled an incident in 1978, when she was 3 years old. It was summer time and in the middle of the morning. The complainant was in the swimming pool, with her two sisters and the Accused. Her foster father was at work. Although her foster mother was in the vicinity, the complainant recalled that the latter was an alcoholic.
The complainant said that the Accused took to playfully throwing her, along with her sisters in the pool. But on this occasion, whilst holding her up, she said she felt the accused touching the complainant’s genital area, but over the complainant’s ‘speedo’ costume. The complainant also recalled feeling his erect penis on her back.
In cross-examination, it was put to RR that there was no pool at the house in New Lambton. RR disagreed.
She was also challenged on her estimate that that she was three years of age at the time of the incident. She maintained that she was three, tying her recollection to the incident occurring a few months after a celebration of her third birthday, when her family were all in the pool in the backyard.

Charges 7-9

In reference to charges 7 & 8, Mr Crown opened on the basis that the event giving rise to these charges occurred at Belmont Caravan Park. For charge 7, Mr Crown opened on the basis that the accused put his hand down the complainant’s pants and rubbed the complainant’s penis. For charge 8, the Crown opened on the basis that the accused put the complainant’s hand on his penis and had the complainant rubbing it up and down. The complainant did not, however, come up to proof on these allegations.
The complainant said in her evidence that when she was 3, or just about to turn 4, she was in her room at New Lambton. The complainant was in her bedroom. She heard the accused asking her foster mother about the complainant’s whereabouts.
The complainant said that the accused came in and sat on the bed beside the complainant. The complainant recalled that the accused pulled out his erect penis and asked her if she would like to kiss it. This evidence aligned with the Crown’s case for charge 9. This the complainant did. She recalled this incident occurring in summer time.
The complainant recalled another incident in summer whilst she lived at New Lambton. She recalled playing on the floor in her room. The complainant recalled the accused coming inside. The accused presented with an erect penis. The complainant recalled the accused rubbing the complainant’s thigh or leg. The accused grabbed the complainant’s hand causing her to pull the accused’s erect penis, up and down, for 1 or 2 minutes before taking the complainant outside to play.

Charge 10

The complainant’s evidence for this charge centred, again, at New Lambton as the location. She said that the accused came into the complainant’s bedroom. His penis was already erect. The complainant said that he pulled his penis out of his pants, put the complainant’s head on it and moved the complainant’s hand up and down to rub the accused’s erect penis.

Charge 11

The complainant recalled an incident when the complainant was 3 or 4 years of age in the complainant’s bedroom at New Lambton.
The complainant recalled that the accused stood up and put the head of his penis into the complainant’s mouth and was masturbating at the same time on the complainant’s bed. This occurred for a couple of minutes.

Charge 12

The complainant recalled that shortly before her 6^th birthday, the accused took the complainant, with Tammy and Tracey, to Blacksmiths’ Beach. This was during summer time. The complainant recalled being at the beach for many hours during the day through to the afternoon. The complainant recalled asking to go to the bathroom and that the Accused insisted on accompanying the complainant. This was around 4pm.
The complainant recalled getting undressed and that the accused got undressed. This was in the shower cubicle which, the complainant later accepted in cross-examination, was visible to people within the toilet block.
The complainant recalled the accused touching the complainant before touching himself on his flaccid penis. This was before the accused masturbated himself for about 10 minutes before ejaculating on the complainant’s face and chest. The complainant recalled that during this episode the accused took the complainant’s hand on to the complainant’s penis.
In cross-examination, Counsel for the accused effectively suggested that RR had embellished her account of the incident occurring later in the afternoon because she was conscious that if such evidence was accepted, it might remove the inference that could be otherwise drawn that if the offending occurred as she said it had, it was likely to have been seen by others entering into the toilet block; thereby rendering her account improbable. RR adhered to her evidence of when the event occurred.

Charges 13 - 16 (incl)

The complainant recalled that on the complainant’s 7th birthday, the accused took her out. The complainant took her to Red Rooster or KFC (the complainant recalled that it was a chicken shop) and thereafter to Timezone. Later in cross-examination, when it was pointed out that the Timezone shop had not yet come into being, the complainant said that the reference to Timezone was to a place in an arcade which had games.
After this, the complainant said that the accused took her back to the caravan park in which the complainant resided but whilst on route, drove off onto a dirt track in a little brown car that the complainant recalled the accused was driving.
The complainant recalled that whilst deep in the bush, the accused used his hand to rub the complainant’s leg and thigh. The complainant then said that the accused pulled out the complainant’s penis and began to lick and kiss it (this was in relation to charges 13 and 14, respectively).
The complainant said that the accused asked the complainant to get out of the car. The complainant walked to the front of the car. The accused asked her to get on the bonnet. By this stage both the complainant and the accused had their pants down. The accused inserted his penis into the complainant’s anus and thereafter moved his penis in and out for a couple of minutes (this was charge 15). The complainant recalled that this caused her excruciating pain.
The complainant recalled that the accused then pulled his penis out and ejaculated on her back and buttocks (this related to charge 16). This episode featured the first time that penetrative sex had occurred and the accused retrieved some nappy wipes before wiping the complainant. They got dressed and returned to the car. The complainant recalled the accused asking “Did you enjoy that?” or “Was that good?”.
Later that day, the complainant noticed pain in her stomach and observed blood in her underpants. The complainant referred to pain to her grandmother the next day but according to the complainant, was told to take some tablets for constipation.
Counsel for the accused challenged RR’s evidence linking the incident the subject of these charges to other details. She was referred to a police statement in which she had told police that she had been taken to Red Rooster on her 7^th birthday, when in her testimonial evidence, she had referred to being taken to Red Rooster or KFC and otherwise indicated that it was a chicken shop.
To the extent that there was an inconsistency in this regard (a matter I will return to in my later analysis), I direct myself that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, that trauma may affect people differently, including how they recall events, and it is common for there to be differences in accounts of a sexual offence and both truthful and untruthful accounts of a sexual offence may contain differences; and that it is up to me, as trier of fact, to decide whether differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.
When it was pointed out to RR that there was no such thing as ‘Timezone’ in 1982, RR said that when she referred to that name (both in her evidence and her police statement) she was intending to convey that she was referring to a place like (the current) Timezone, being in an arcade, at the time.
The complainant said that the next time she saw the accused again was when she was 10 years old. She explained that her father, MS, brought the accused into the house. Upon seeing the accused, the complainant said she left the house.

RR’s accusations to the accused

After the Crown had obtained a telecommunications search warrant, on 6 and 8 January 2022, RR had telephone conversations with the accused, which I will refer to for other purposes a little later in these reasons (Exhibit B1 - 3).
For present purposes, in the first of two conversations with the accused on 6 January 2022 (Exhibit B1), one exchange was as follows:

“The Accused: … Hey, can I ask you something if it’s all right?
RR:   Yeah
The Accused:   Yeah, um, I’m over in South Australia so I’ve lost contact with a lot of people, did you say – have I been intimate with you or not?
RR:   Pardon?
The Accused:   Have I been intimate with you or not?
RR:   At one stage, yes.
The Accused:   I’ve been intimate with you?
RR:   Yes
The Accused:   Gees, I must have been drunk. No.
RR:   Yeah.
The Accused:   No. When was this at?
RR:   This happened um, on a few occasions actually. It happened at the caravan park where [GB] and [JB] used to look after me. And it happened at [MS]’s point at dad’s house one night when youse were all drinking um, while [GB] and [JB] were there. Dad was there.
The Accused: Mate, when I get back from um, I’m, I’m down Adelaide way, I’d love to catch up with you and, and sort that one out ‘cause I can’t, I can’t recall ever being intimate with you. [MS] was saying something about that” (emphasis supplied)

Direction

What one person says to another is not normally relevant evidence. Here the evidence was being led under the apprehension that the Crown might have asserted that the content of the response by the accused to the statements made to him constitutes an admission by the accused that what was contained in the statements by RR was true. It would be different had the accused denied the allegation made or had given some innocent explanation to rebut the allegation. On the premise apprehended by the accused, the evidence would only be relevant if I found that the accused’s lack of response, or its content, when confronted with the accusations amounted to an admission that it was true.
However, the Crown did not expressly or squarely rely upon this particular exchange as an admission that the accused did engage in the conduct he was specifically accused of: the Crown rather relied upon it for the different purpose of establishing that the accused had lied, or perhaps more accurately, minimised his association with WS (as RR then was). Notwithstanding the Crown’s expression of intent, but upon prompting by me, Counsel for the accused requested this direction and out of an abundance of caution, I now give it.
Given that the statements were in recorded (audible) form, I accept that RR made the statements to the accused; that the accused heard them and that he had the opportunity to respond to them. I further accept that the accused responded in the way indicated. I then need to consider whether by reason of the content of his response to RR’s statements, the accused had acknowledged that what she had said was, either in whole or in part, true.

In doing so, I apply my common sense and experience of life and what I might expect a person in the position of the accused to do or say when faced with such an allegation, although I should also consider that people do not always act predictably in certain situations. Here I am considering the conduct of the accused, and I must not consider the conduct of some hypothetical person in his position. I must also consider whether there is an alternative explanation for the content of the accused’s response, other than that he accepted the truth of what RR said in this particular exchange.
The accused did not provide an explanation for why he responded as he did in this exchange, but could not, by that omission, be taken to have accepted that he admitted the statements RR made.
Counsel for the accused did, however, ask RR why, during the course of this exchange, she did not raise other incidents involving abuse by the accused, being in the pool at New Lambton or at Blacksmith’s Beach (RR having told police in her statement that it was at Blacksmith’s Beach that she first saw the accused’s semen). RR explained, in effect, that she deliberately chose to mention only some things, as she was just trying to elicit information from the accused, as police had requested of her.

Delay or absence of complaint

In his closing address, Mr Crown requested that I give myself a direction in accordance with s 294(2) of the Criminal Procedure Act, in relation to both complainants. Counsel for the accused did not oppose the request in relation to either complainant.
Accordingly I direct myself that delay, or absence of complaint by both complainants, KA and RR does not necessarily indicate the allegations the offences were committed are false. There may be good reasons why alleged victims of sexual assault or indecent assault may hesitate in making, or may refrain from making, a complaint about such an assault.

Forensic disadvantage direction

It was ultimately common ground that I should accede to the accused’s application to give myself a direction conformably with s 165B of the Evidence Act1995 (NSW) (it matters not for this purpose that I sat without a jury^[1]). It was also common ground that potential witnesses, PA and JB (the ‘missing witnesses’) had either died or were not available to give evidence (s 165B(7)(a)). I am satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay.
1. W v R [2014] NSWCCA 110 at [126]–[127], [130].
I note however that Counsel for the accused did not submit as to the specific difficulties encountered by the accused beyond those which would ordinarily be expected from the circumstance that the missing witnesses had either died or were otherwise unavailable to give evidence. Nor was it suggested in what, if any specific, way the accused lost the opportunity to call evidence in his own case.
I appreciate the effects of delay, or absence of complaint on the accused’s ability to defend himself by testing prosecution evidence, or possibly adducing favourable evidence from the missing witnesses, in his own case, to establish a reasonable doubt about his guilt.
In this regard, I refer to the following specific difficulties encountered by the accused in testing the evidence of the Crown witnesses by reason of:

the delay in instituting the prosecution

the possibility of distortion in human recollection^[2]

the nature of the allegations (including the locations and date ranges in which events were said to have occurred)

the age of the complainant at the time of the allegations having regard to the current and previous forms of ss 165A and 165B Evidence Act

the prosecution case, aside from the tendency evidence and evidence of lies and consciousness of guilt, remains fundamentally confined to or focussed upon the evidence of the complainants,
2. Noting recent observations by Leeming JA (albeit in dissent in the outcome, but not on the observations) in Arizabaleta v R [2023] NSWCCA 217

These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainants’ memories for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainants’ inability, or limited ability, to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict the complainants. Had the accused learned of the allegations at a much earlier time the accused may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainants.
Another aspect of the accused’s disadvantage is that had the accused learned of the allegations at a much earlier time the accused may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. The accused may have been able to recall with some precision what the accused was doing and where the accused was at particular times on particular dates and to have been able to bring forward evidence to support the accused.
Because the accused has been put into this situation of significant disadvantage the accused has been prejudiced in the conduct of his defence. As a result, I direct myself that before I convict the accused I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about — the fact the complainants’ evidence has not been tested to the extent that it otherwise could have been.

Tendency evidence

The tendency witness: AA

As indicated, AA is one of KA’s sisters. She knew of the accused since childhood, when she referred to him as ‘Uncle’, although she later came to understand that he was a friend of her mother. She could not recall precisely how old she was when she first saw him.
She recalled that the accused came to her home sporadically. She recalled he drove a white, light blue, or silver coloured station wagon. She recalled he came over to her place in the late afternoon or early evening and often took one of the kids in her family to get takeaway food in a Chinese shop in Swansea at night-time. She recalled going with him on occasions and that her younger sister, R, joined them on one occasion.
AA recalled incidents of the accused sexually abusing her in that vehicle; once in the front seat and more often in the back. She recalled that she was living at Gateshead West at the time of the abuse. She indicated that she had lived there since she was 8 or 9.
This sometimes occurred when his vehicle was stationary in the driveway to her home, at Gateshead West, but it also occurred on occasions after collecting the takeaway food. She said the conduct went on for years until she started high school, at the age of 12 or 13 when she received sex education classes. From then she learnt that what he was doing was wrong and on one occasion, when in her mother’s home, she told the accused that she “knew that what he was doing was wrong and wasn’t going to cop it anymore”.
AA cited specific incidents of alleged abuse. She recalled the accused running his hand up her legs and putting his hands down her knickers. She recalled him touching her breasts and at the same time touching her vagina (above her clothing), although on one occasion, when she was in the back seat of the car, she said he tried to touch her vagina under her clothing with his fingers.
She said that the accused told her that if she said anything, she would not be believed and had threatened her and her family.
She recalled seeing the accused again when she was aged about 19 or 20. This would have been about 1993 or 1994. She narrated an episode where she apprehended that the accused was going to rape her but, on this occasion, her Auntie N had come in. She said she did not see him again.
It was put to AA in cross-examination that the accused had never engaged in anything sexually with her and she denied that.
AA accepted that in 2008 she had been convicted of the offence of fabricating false evidence with the intention of misleading a judicial tribunal. This was, essentially, the provision of a false alibi to police. AA explained that this was for an ex-partner’s friend. It was put to AA, but she rejected the proposition, that she suggested to KA that the latter fabricate a false complaint against the accused. When AA remonstrated that she would not do that, Counsel for the accused retorted that she had made things up in 2008. To this, AA explained that she had done so for being in fear of a third person who had bullied and threatened her.
She accepted that she did not pass that threat on to police because she did not want to be known as a ‘dobber’. AA rejected the unqualified proposition that she would do anything to help KA.
In re-examination, AA said she thought that she had pleaded guilty for the 2008 charge. At any rate, she did not recall any witnesses appearing when she appeared at the hearing.
She also said that whilst she remained angry, to some extent with the accused, her feelings were more to do with her sense of being violated.
She did not recall encouraging RR to make a complaint against the accused for the purpose of obtaining compensation.

Admissibility of tendency evidence

With the parties’ consent, I indicated I would provide reasons for admitting the tendency evidence in these reasons for the verdicts.
The Crown served notice of its intention to rely upon tendency evidence (MFI 5). No point was taken that the extent of timing for the notice was unreasonable (per s 97(1)(a) of the Evidence Act 1995 (NSW)). Nor was any point taken that the proceeding concerned allegations of ‘child sexual offences’, as that expression is defined in s 97A(6) of the Evidence Act.
Particulars of the tendency evidence, and the substance of the evidence, appear in the notice. As is apparent on the face of the notice, the Crown alleged that the tendency evidence related to the accused’s having had a sexual interest in children and associated tendency to act upon it. As s 97A(3) indicates, it is immaterial whether the asserted tendencies were specifically directed against the complainants in the proceeding (although the Crown did allege that they were) or not.
The accused did not contest that the evidence of the complainants (on the counts respectively concerning them) and the uncharged conduct concerning AA was capable of demonstrating the tendencies that the Crown alleges against the Accused. That being so, it is presumed that the evidence has ‘significant probative value’ for the purposes of s 97(1)(b) of the Evidence Act.
There being no other basis suggested for why the evidence would be inadmissible, I find that the tendency evidence that the Crown relies upon is admissible.

Directions about tendency evidence

Part of the Crown case is that the accused had a tendency to have a particular state of mind and a tendency to act in a particular way. Each of these tendencies are relied upon as circumstances relevant to the accused’s guilt of all offences. The Crown identified these tendencies as (a) having a state of mind, namely, a sexual interest in children generally aged between 3 and 13, who were in vulnerable family positions, viz a viz the accused, and in respect of whose parent or carer was a friend of the accused; (b) specific sexual interests, respectively in WS (now RR) when that complainant was aged between 3 and 8 and KA, when that complainant was aged between 8 and 11, and (c) a tendency to act upon those sexual interests on numerous occasions, when alone with the child at their home or in a motor vehicle. The Crown says proof of these tendencies makes it more likely he committed the offence(s) charged in the indictment.
I cannot consider evidence of the accused’s alleged tendencies as a relevant circumstance in the Crown’s case unless I make several findings. First, I must find that one or more of the acts relied upon by the Crown to establish the tendency evidence actually occurred as an act of the accused. In determining whether I should make that finding, I need not consider each of the acts in isolation, but should consider all of the evidence to determine whether each of the acts relied upon actually occurred.
In this regard, part of the conduct that the Crown relies upon to establish these tendencies is the charged conduct complained by the two complainants itself. But part of the evidence the Crown relied upon to prove the alleged tendencies concerns the incident[s] alleged to have occurred in relation to the Crown witness, AA, that are not the subject of any charge in the indictment. As to that part of the Crown’s case on tendency, if I am not satisfied that those incidents occurred, then the evidence relating to them should be put aside. To the extent that the Crown relies upon evidence of uncharged conduct, I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.
If I decide that all, or at least some, of the conduct (charged or uncharged) occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendencies as they are alleged by the Crown. That is, I will have to determine whether the acts which I am satisfied occurred prove that the accused had the tendencies asserted by the Crown.
I remind myself about what I said earlier regarding the care that needs to be applied to the drawing of inferences. I have to consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In such circumstances, I must put the whole issue of tendency to one side and confine myself to considering the other parts of the Crown’s case.
But if I am satisfied that the acts relied upon to sustain the alleged tendencies have been proved and that the tendencies posited by the Crown have been proved, then I can use the proven tendencies when considering whether the Crown has proved the accused’s guilt beyond reasonable doubt.
However, I bear in mind that just because a person has a tendency to have a particular state of mind or to act in a particular way, does not mean that he must have had the state of mind, or must have acted in that particular way, on the occasion in issue. I also keep in mind that I should not give disproportionate weight to the tendency evidence.
In short, finding the accused did have the tendency or tendencies which the Crown alleges is not enough to prove the accused’s guilt. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. That is the only way the alleged tendencies, if proven, may be used.
Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon all the evidence relevant to each of the charges. This includes the evidence of each of the complainants about what the accused did. It will also include the tendencies alleged by the Crown, provided I am satisfied it has been established in the circumstances I have described.
The evidence the Crown relies upon to establish that the accused had this tendency or tendencies is of a type that might provoke some people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. Though a Judge and lawyer by training, I remind myself to be careful to avoid allowing any emotional response or prejudice to distract myself from a calm and objective assessment of this issue.

Context evidence

RR gave evidence of multiple incidents beyond the evidence the Crown relied upon for specific charges. Thus, she gave evidence of similar misconduct by the accused: in the swimming pool at her house in New Lambton (T 46.16, 47.50 & 48.11), (masturbation) by the accused towards him (T 53.45 – 53.49) and penile-anal intercourse (T 55.44 – 55.32).

Direction as to use of context evidence

This evidence was admitted solely for the purpose of placing the complainant’s evidence towards proof of the charges into what the Crown says is a realistic and intelligible context. By context I mean the history of the conduct by the accused toward the complainant as she alleges it took place.
Without the evidence of these other acts the Crown says, it may be wondered for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in anyway. If I had not heard about the evidence of other acts, I may have thought the complainant’s evidence was less credible because it was less understandable. So the evidence is placed before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges in the indictment.
If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant alleges was an ongoing history of the accused’s conduct toward her (when she was WS), then what might appear to be a curious feature of the complainant’s evidence — that she did not complain about what was done to WS (as she then was) on a particular occasion — would disappear. It is for that reason the law permits a complainant to give an account of the alleged sexual history between herself or himself and an accused person, in addition to the evidence given in support of the charges in the indictment. It is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. The complainant’s account of other acts by the accused allows RR to explain her account more naturally and intelligibly of what allegedly took place.
The Crown can therefore lead evidence of other acts of a sexual nature between the accused and the complainant to place the particular charge/s into the context of the complainant’s account of the whole of the accused’s alleged conduct.
However, I must give myself some important warnings with regard to the use of this evidence of other acts.
Firstly, I must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainant made other allegations against him. This is not the reason the Crown placed this evidence before me. The evidence has a very limited purpose as I have explained, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
Secondly, I must not substitute the evidence of the other acts for the evidence of the specific charges in the indictment. The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising in what the complainant says, was a course of sexual misconduct. I am concerned with the particular and precise occasion alleged in each charge.

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

Evidence of discussions between the complainants and the tendency witness

KA’s evidence

KA said that the first person she complained to about the accused’s conduct was her mother. She said she told her mother that the accused was hurting her, but her mother took no action. She gave evidence of complaining during the period of the alleged offending.
She later referred to what the accused had allegedly done to her when speaking with RR and her psychologist.
The tendency witness and sister to KA, AA, told KA that she had recovered compensation against the accused before KA reported the alleged conduct to police.
It was put to KA, but the latter denied, that she was only making up her allegations against the accused to enable her to make her own claim for compensation. It was also put to the complainant, but again denied by her, that it was AA who suggested she make a statement to police and encouraged her to make a claim for compensation against the accused.
KA also gave evidence of speaking with the other complainant, RR, as well as AA and MS. It was at this time that KA recalled that she first met WS (as RR then was named). KA learnt that WS (as RR then was) had lived in a caravan up the road from her earlier. This was at AA’s house. This was at about the time that MS had been released from jail. KA had travelled from Tamworth and stayed a couple of nights. RR also stayed for a few nights.
KA recalled RR complaining of bleeding from the buttocks when WS (as RR then was) was 3 years old.

AA’s evidence

AA gave evidence of seeing RR, about 6 years ago. She recalled having some contact with WS (as RR then was) whilst they were young, but their connection was revived 6 years ago. She recalled a discussion with RR in which she told RR that the accused had abused her and RR said that the accused had abused her.
AA also said that, between 3 or 5 years ago, she had told her sister, KA, about being sexually abused by the accused; though this discussion was general in nature. She recalled that KA told her that the accused had abused her as well.
Specifically, AA recalled that in June 2021, KA had told her that she had made a statement to police. That included reference to the accused. KA informed her that she had given police AA’s contact details. This did not make KA happy as she had refrained from contacting police; though in due course AA gave a statement to police.
AA said she received two compensation payouts; partly from the accused. She said that after receiving the payouts, she spoke to KA and told her about receiving the compensation. She thinks she revealed this to KA before KA had confided in her KA’s allegations about the accused. She did not recall ever suggesting to KA that the latter might obtain compensation if she complained about the Accused and did not recall whether she had passed on to KA the contact details of the law firm that had helped AA obtain the payouts.

RR’s evidence

This complainant acknowledged that KA, AA and WA were cousins, but said that she did not see them often as she grew up. She said she sees KA more frequently now.
The complainant said she recalled watching television with KA on one occasion. She said that she saw something about paedophiles, specifically referring to the ‘Hey Dad’ actor (Robert Lindsay Hughes) who was convicted of sexual offences against children, and who reminded her of the accused. They had an exchange which RR recalled went along the following lines:

KA: “You’re not talking about Uncle Karl are you?”
RR: “Yes”

RR recalled mentioning to KA that ‘stuff’ had happened to her when she was young and that KA had said that the accused had done things to her when she was younger.
Under cross-examination, RR said that her conversation with KA preceded RR’s statement to police.
RR did not recall AA informing her that the latter had brought a compensation claim against the accused, or that this had occurred before RR provided her statement to police. RR denied the propositions that AA or KA had encouraged her to fabricate, or that she otherwise decided to fabricate, complaint about sexual abuse against the accused to bring a compensation claim or otherwise to support KA.

Motive to lie direction

A common feature of the cross-examination of both complainants was the suggestion that they fabricated complaints against the accused.
If I accepted that KA and/or RR lied about the accused offending, I need to direct myself about this and it flows from my earlier direction to myself that the accused bears no onus of proof of any matter in this trial.
It would be natural for me to ask myself why KA and/or RR would make up serious allegations against the accused. However, I must not reason in that manner. I direct myself in the following manner.
If I accept that KA and/or RR had a motive to lie, then that is something that I would take into account when assessing their (respective) credibility and whether I can be satisfied beyond reasonable doubt of their accounts.
However, it is not for the accused to prove that KA and/or RR lied in their respective accounts, or for the accused to prove that they had any reason to lie about him.
As previously stated, the essential elements of the offence must be proved by the Crown beyond reasonable doubt before I could find the accused guilty. If I do not find that those essential ingredients or elements are proved beyond reasonable doubt, then I must find the accused not guilty.
If any element turns on the evidence of the respective complainants, I must be satisfied beyond reasonable doubt that they have told the truth and their respective evidence is reliable in that regard. It is my duty to decide whether I accept the evidence of a witness, wholly or in part. The complainants are no exception to that.
It would be wrong to conclude that KA and/or RR told the truth, because, for example, there is no apparent reason in my view for them to lie. It would be wrong to conclude that they told the truth because I do not accept that the complainants made up the allegations.
People lie for all sorts of reasons. Sometimes it is apparent, sometimes it is not. Sometimes the reason can be discovered, sometimes it cannot. I cannot be satisfied that KA and/or RR were telling the truth merely because I believed there to be no apparent reason for them to make up the allegations. There might be a reason for them to be untruthful and nobody knows what that reason is. I am not to speculate about that.
Before I move on, I note that Counsel for the accused eschewed any additional direction about the risks of concoction or collaboration beyond what I have directed myself about a motive to lie in the complainants.

Lies or consciousness of guilt

Three sound recordings of conversations between RR and the accused in early January 2022 were played in Court (Exhibits B1-B3). RR identified the accused’s voice as one of the interlocutors.
The Crown also relied upon sound recordings of conversations between the accused and KA in December 2021 (Exhibit D1 – D2)
By this time, RR had given a police statement. Also by this time, a telecommunications service warrant had been issued for the accused’s mobile phone number.
The Crown additionally relied upon parts of the evidence of the Accused when he elected to give evidence in Court.
From this evidence, the Crown identified lies having been told by the accused.

in his conversation with KA (which was before he was served with the provisional AVO), he denied knowing PA, when, in his evidence in Court, he was able to identify specific occasions of meeting up with PA at her house for a few times over the years and at other public places (such as a bus stop);

he lied (in his evidence in Court) when he said he first was aware of allegations brought by KA and RR was when the police served the provisional AVO (on 11 January 2022) when, respectively, he had already spoken to KA (in December 2021) and when he indicated to RR (on 6 January 2022) that he had learnt about allegations brought by RR from MS. It was this awareness that led the Accused to ask RR (in the same conversation on 6 January) the curious question “have I been intimate with you or not?”;

he lied when he told RR (in his telephone conversation with her on 6 January 2022) that RR had confused him with someone else when RR asserted she (as WS) had grown up with her with him around her;

he lied when he told RR (in his telephone conversation with her on 8 January 2022) that the person RR was ringing (on what was proven to be the accused’s mobile phone number) was someone else, ie CF;

he lied when he told police in a bodycam interview (Exhibit E1) that did not know of either KA or AA and also lied to police when in another bodycam interview upon his arrest (Exhibit E2), he said that he had “nothing to do” with any of the complainants and AA, when he had given evidence in Court that he had been around to the [family] house on multiple occasions when KA and AA were children and had even taken the girls to the local beach on two occasions (separated by a year).

In relation to asserted lies (1) and (4), the accused explained that the reason he lied was that he was not on oath at the time and in the light of past experiences with prior acquaintances of his, he did not want them turning up at his place and ‘bludging’ off him.

Directions

There are several directions I give myself about this evidence. First, it is necessary to be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what they said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made the statement I have just referred to, and find that they were actually lies, I direct myself about the care with which I must approach the task of deciding what significance, if any, it has. I can take this lie or lies into account as evidence of the accused’s guilt but can only do so if I find two further things. When indicating that I can take it into account as evidence of the accused’s guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown did not suggest that if I found the accused told a lie that this finding can prove the guilt of the accused by itself.
Apart from the fact that the accused made the statement(s) and that it or they amounted to a deliberate lie or lies, before I can use the lie or lies as some evidence of the accused’s guilt I must find two further matters proved.
First, I must find that what the accused said that amounts to a lie or lies relates to an issue that is relevant to the offences the Crown alleges that the accused committed. It or they must relate to some significant circumstance or event connected with that alleged offence(s). The Crown says it is relevant because at the time he lied, the accused was on notice of allegations having been brought against him and was seeking to distance himself from association with the complainants (and Ms AA).
Second, I must find that the reason the accused told the lie or lies is because he feared that telling the truth might reveal his guilt in respect of the charges he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
I remind myself however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lie or lies may have been told for some reason other than to avoid being implicated in the commission of the offence(s) for which the accused is now on trial, then it or they cannot be used as evidence of the accused’s guilt. If that is the case, I should put the lie or lies to one side and focus my deliberations upon the other evidence in the case.
The defence case in relation to this issue is that the accused had been consistent in explaining why he admitted to telling lies: that he was at liberty to tell lies since he was not on oath and was concerned from prior experience that if he admitted to past associations with the complainants (or AA) they could turn up on his doorstep and ‘bludge’ off him; and that such explanation should be accepted. That being so, it could not be said that any lie or lies he told police or out of court to others were told because he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.

The Accused’s Case

The accused’s case is that none of the alleged incidents occurred.
There was no suggestion, in particular, that if I found that the alleged acts were proven, then they did not constitute ‘assaults’ or could not be characterised as ‘acts of indecency’ committed at the time of the assaults. Nor, in relation to charge 15 specifically, was there any dispute that if the act was proven beyond reasonable doubt, it would constitute ‘buggery’.

Out of court exculpatory statements

In the course of the Crown’s case, there were certain out of court exculpatory statements to which I now make reference. To a small degree I have touched upon them in the section above concerning ‘lies and consciousness of guilt’. Be that as it may, little reference was made to them in the closing addresses but in my view, it is appropriate to consider them if they might assist the Accused’s defence.
In the first and third of his conversations with the complainant (Exhibit B1 and B3), the accused denied being homosexual.
On 11 January 2022, DSC Dean served the accused with a provisional apprehended violence order. The officer indicated that the provisional orders were intended to protect the complainants, KA and RR, and also the tendency witness, AA.
In the course of this interview (Exhibit E1), the Accused said that he had seen one of these people, probably once in his life, about 15 years ago, but did not know the other people. He later said that he had not seen those ‘characters’ for about 20 years, probably 2002.
On 8 February 2022, in the company of two other unidentified police officers, DSC Dean arrested the accused at his home. He identified to the accused that he was arrested:

“.. for the sexual assault and indecent assault of RR, formerly known as [male nickname for WS], [KA] and [AA]…”

After DSC Dean administered a caution to him, the accused stated that “those things didn’t happen at all”. The accused asserted that RR had “contradicted herself”. The accused went on to assert:

“ …. She [RR] was brutally knocked around and then finds herself in my car at a further time down the, ah, down the line. Right. So he, ah he or she was brutally bloody knocked around by me. And then further in time, she’s in the car riding around with me. She had her siblings with her, or with him”.

The interview (Exhibit E2) indicates that the accused wanted to know whether police had questioned RR’s siblings. After DSC Dean administered another caution, the accused went on to say:

“I didn’t know these people. I just didn’t know these people. Apart from delivering their mother home on two or three occasions, I had nothing to do with them till, till, oh 1987 or thereabouts”.

Ex-partner’s statement in police interview

Within the second set of agreed facts (Exhibit F), there was reference to the police interviewing the accused’s former wife, Margaret Wasiak. One of the agreed facts (number 4) was effectively the ex-wife’s statement to police that she and the accused had multiple children, and that none of those children had disclosed to her that the accused had acted in a sexually inappropriate way towards them.

The accused’s election to give evidence

The accused elected to give evidence. Before I turn to the substance of his evidence, I remind myself that it is important to recognise that just because the accused has the greatest interest in the outcome of the case does not mean that I am to evaluate his evidence on the basis of his interest in the outcome of the case. That would be unfair^[3]. Nevertheless, simply because he exercised his right to give evidence in Court does not, by itself, mean that I should great place greater or lesser weight then I would when treating the evidence on its weight in comparison with other witnesses.
3. Robinson v R (No.2) (1991) 180 CLR 531 at 535-6
The accused’s evidence in chief consisted simply of denials that he had done anything sexual towards the complainants or AA. The accused was thereafter cross-examined for the predominant purpose of establishing that he had told lies (as indicated in the section above concerning the Crown case) but also for the incidental, but nonetheless, important, purpose of discharging the Crown’s obligation to put to the accused his engaging in sexual misconduct towards the complainants (and AA).

Other evidence

The accused relied upon an affidavit from a lawyer for the franchisor of the product brand ‘Red Rooster’ (Exhibit 1) for the purpose of establishing that there was no Red Rooster store that had opened in Newcastle in 1982. In fact, the first Red Rooster stores were opened in Bass Hill and in Penrith on 13 May 1982. This evidence was directed to the last of the alleged incidents concerning charges 13-16 (incl). Counts 13 – 16 on the indictment concerned conduct allegedly occurring at Belmont.

Liberato direction

The accused positively denied any sexual impropriety towards the complainant. Although he did not specifically give a version, or versions of events concerning details about the individual incidents alleged by the complainants (or AA)^[4], it is common ground that I should give myself a Liberato direction.
4. Haile v R [2022] NSWCCA 71 per Bell CJ at [2]
I remind myself about the onus and standard of proof I referred to earlier. The accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows from this that:

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

Second, if I find difficulty in accepting the accused’s evidence but think it might be true^[5], then I must acquit.

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

5. The emphasised parts of this direction are intended to reflect the observations in Park v R [2023] NSWCCA 71 per Kirk JA (Sweeney J agreeing) at [103]

Findings on remaining contested charges (ie after the directed acquittals)

I propose to conduct my separate analysis of the charges out of sequence, for reasons that will shortly become apparent.

Charge 2

Mr Crown opened on the basis that KA was expected to say that for this incident she was a front seat passenger and that the accused had reached across to rub her vagina over her pants on a couple of occasions (T 1.50 – 2.2). The Crown expected her to say that her brother WA was seated on the accused’s lap (T 1.48) in the driver’s seat. This was different to the Crown case on charge 1 which posited that she was sitting on the accused’s lap in the driving seat.
But in her evidence relating to charge 2, the complainant did not give evidence distinguishing where she sat at the time of the sexual touching from the first incident she gave evidence about. The Crown fairly accepted that this omission was material.
I harbour a reasonable doubt that the conduct and circumstances the Crown relied upon to sustain this charge is established beyond reasonable doubt.

Charge 4

For this charge, and also charge 5, the Crown opened on the basis that both charges related to an incident occurring at the same time. Moreover, the Crown case was that the incident occurred when the complainant was 10 or 11 years of age (T 2.10 – 2.12). (The indictment indicated 10 years in both cases)
The Crown opened on this charge on the expectation that the complainant would say that the accused rubbed her vagina on the outside of her pants (T 2.15). But in her evidence of the complainant relating to charge 4, the complainant said that the accused put his hands inside her underpants. Moreover, she estimated that she was between 8 or 9 years of age at the time of this incident.
As Mr Crown accepted in his closing address, these were material differences (leaving aside the question of whether the complainant was narrating a different episode in relation to charge 5; a question I will very shortly turn to).
I have a reasonable doubt whether the conduct and circumstances sustaining this charge occurred.

Charge 5

I noted a moment ago how the Crown opened on the basis that the conduct and circumstances sustaining this charge was part of the same episode relating to charge 4. One such circumstance that the Crown relied upon, to repeat, reflected on the face of the charge in the indictment, was that the complainant was 10 years of age.
For charge 5, the Crown opened on the basis that it expected KA to give evidence that the accused had re-positioned her in the car, removed his pants and turned her to face him (so she was straddling him), before placing his hands on her buttocks and moving her body up and down so that his erect penis rubbed against her vagina (T 2.16 – 2.19).
But when the complainant gave evidence, she estimated that she was 9 years of age (T 16.9) and her evidence, fairly read, suggested that she was likely referring to a separate incident to that which gave rise to charge 4. Further, she indicated that instead of facing and straddling the accused, as the Crown had contemplated, she was facing in the direction of the car which was travelling.
These differences are again material. I am not satisfied that the Crown has established its case in relation to this charge beyond reasonable doubt.

Charge 3

I have considered the complainant’s evidence (T 13). Unlike some of the other charges I have considered involving KA, there is correspondence between the Crown case, in the way it was opened, and the complainant’s account of what occurred.
Nevertheless, in my view, and applying Markuleski, my doubts in relation to the other charges about which this complainant gave evidence, which turned upon a doubt about the reliability of her recollections as to material matters of detail, necessarily cause me to harbour a doubt about the accuracy of her evidence in relation to charge 3 as well. The circumstances affecting this charge were substantially similar to the circumstances affecting the other charges for which an acquittal was directed or in respect to which I have found the accused not guilty.
In reaching the conclusion I have, I am not to be taken to suggest that KA was not honest when she gave her evidence. To the contrary, I find that she was genuine and did her best to give an honest account of what occurred. This finding is consequential when I consider the matter of tendency evidence later in these reasons.
I am not however, satisfied that the Crown has discharged its burden of proof in relation to this charge.

Charge 9

In my view, it is a short step to conclude from the acquittal of the accused in relation to charges 7 & 8, that the accused should also be found not guilty of the conduct of charge 9. Although for charge 9 (unlike charges 7 & 8) RR’s evidence aligned with the particulars of the misconduct which Mr Crown opened upon, this obscures the point that the Crown case effectively treated the conduct comprising each of charges 7, 8 and 9 as a single episode, all of which the Crown contended occurred at Belmont Caravan Park (T 2.41- 2.43).
But fairly read, the complainant’s evidence (T 48-49) relating to the accused’s alleged request to the complainant to kiss his penis was linked to RR’s then house at New Lambton, no differently to her evidence about the location for the incidents the subject of charges 7 & 8, which the Crown had tied to occurring in the Belmont Caravan Park.
It being accepted by the Crown that the location of the offending was material, I harbour a reasonable doubt that the conduct the Crown alleged in the circumstances it relied upon.

Charge 10

For this charge (and charge 11), the Crown opened on the basis that there was a single incident giving rise to this charge; that it occurred when RR was 4 years old and when RR resided at Belmont Caravan Park (T 3.20 – 3.24).
However, fairly read, the complainant’s evidence (T 49-50), following on from her description of the conduct giving rise to charge 9 (forced kissing of the accused’s penis) located the incident occurring in his bedroom in New Lambton.
I find that there is a reasonable doubt as to whether the conduct and circumstances alleged in relation to his charge occurred.

Charge 11

Although the conduct giving rise to this charge was different to charge 10 (placing his penis into the complainant’s mouth rather than the accused touching the complainant’s penis) the same material difference between the Crown case on location and the complainant’s evidence of location (T 57.32 – 58.10) applied.
I am not satisfied that the Crown has discharged its burden of proof in relation to this charge.

Charge 6

On the indictment, this charge was particularised as occurring when the complainant was 3 years of age ie on some date between 22 May 1978 and 22 May 1979. RR gave some evidence, which was not very strong in its conviction, that the offending occurred in summer time and at the pool at New Lambton and that the offending occurred in 1978 (T 46.27). If this evidence was true, then putting both items of evidence together, the alleged offending would likely have occurred in the summer of 1978-79.
But under cross-examination, the complainant associated the incident as occurring a couple of months after celebrating her third birthday (T 66.36). That third birthday occurred in May 1978. On the basis of this particular memory, the incident would have occurred in the winter of 1978; not the summer of 1978-1979.
Further, although RR gave some limited evidence on peripheral details such as who observed the incident, as became apparent when she was cross-examined specifically in relation to the incident, there was nothing distinctive that she recalled in relation to the celebration of her third birthday than that which occurred in relation to other birthdays. By this line of questioning, it was clear that the Accused was purporting to make time an essential ingredient for the offence.
As will become apparent later in these reasons, these circumstances were in contrast to the complainant’s evidence relating to charges 13-16 (incl).
I am unable to accept that the Crown has proven this charge beyond reasonable doubt.

Charges 12, 13-16 – general issues

This then leaves for consideration the alleged incidents at Blacksmiths Beach (charge 12) and the incidents alleged to have occurred on RR’s 7^th birthday (charges 13-16).

The credibility and reliability of RR’s evidence

Markuleski

As occurred with the complainant KA, I must consider whether my acquittals of the accused on charges 6, 9, 10 and 11, following the directed acquittals for charges 7 and 8, for reasons of doubt associated with the accuracy of RR’s evidence in relation to those charges, means that I should also harbour a doubt about the complainant’s evidence in relation to the remaining counts (2, 12, 13-16).
My rejection of charges 9 – 11 was largely based upon the complainant’s misplacing the location where the alleged offending occurred. Count 9 itself was effectively a derivative result from the directed acquittals for charges 7 and 8. My rejection of charge 6 had to do with time.
But unlike the position of the complainant KA, there was evidence from RR of other uncharged conduct which was relied upon as context evidence.
Also, although I have expressed my doubt about the occurrence of the specific incidents concerning charges 6 & 9 – 11 (incl), it does not follow that it was unlikely that some abuse occurred. Confining myself, for the moment, to the effect of Markuleski, I note that when RR spoke to the accused on 6 January 2022 (Exhibit B1) RR’s accusations included that abuse had occurred in a caravan park and ‘at dad’s house’. The effect of this other evidence was that it is likely that RR was referring (respectively) to the Belmont Caravan park and the house at New Lambton, the latter being the earliest place that she could recall living in (T 44).
Further, by the time of the alleged conduct the subject of charges 12, and 13-16, WS (as RR then was) had become older. Compared to the complainant’s age at the time of the first alleged incident (charge 3), RR said she was 6 years and 6 months of age by the time of the alleged incident giving rise to charge 12 and, as she recalled, 7 at the time of the alleged incident giving rise to charges 13-16 (incl). I accept Counsel for the accused’s submission in closing address that:

“It does appear that throughout the course of the evidence in chief, that as she says she got older that the clarity with which remembered places and dates seems to become increasingly more clear” (T 125.38 – 125.41)

The separate events that RR narrated in relation to charges 12 and 13 -16 (incl) were distinct in their nature: an alleged episode in a shower block at a beach and an alleged episode coinciding with particular activities associated with a birthday celebration.
Considering the circumstances of my acquittals of other charges concerning RR on the basis of an insufficiency of proof or material discrepancies between the Crown case and her evidence, by reason of the matters referred to, I do not consider that any lack of reliability in RR contributing to the acquittals on those other counts logically precludes me from reaching a different outcome in relation to the remaining charges if I am satisfied on the whole of the evidence that different outcomes are justified.

Motive to lie

Whilst I acknowledge that it is not for the accused to prove that the complainants lied, or the reasons why the complainants would lie, it remains the case that his Counsel expressly advanced a motive why each of the complainants would lie: to assist themselves or the other to advance a claim for compensation; and that to that end, it was necessary to make a report to police in order to advance such a claim. It is necessary for me to consider that suggested motive.
In my view, the suggested motive simply does not stack up.
I take into account the complainants’ denial of the proposition. In this regard, I also note that whilst the accused ultimately submitted that although both the complainants were unreliable in stating their recollections, she did not submit that they were not credible. The suggestion of having a motive to lie jars against the suggested motive.
I also take into account the inherent implausibility of the suggestion. In this respect, all that was known about AA’s receipt of compensation payouts were the circumstances that, with the assistance of a law firm, she received payouts and the quantum of the payouts. There was nothing to indicate by what legal route she obtained a payout; when it may be surmised that the invocation by the parties of Court processes might have indicated the legal basis for the claim for AA’s compensation claim.
It struck me that that there was no necessary barrier to making a claim for compensation without making a police report. The most that can be said was that a claimant might face a practical forensic difficulty in bringing a compensation claim without a police report as an example. From my brief perusal of the Victims’ Rights and Support Act 2013 (NSW), it appears that the complainants in this trial might have brought a claim for (at least) a ‘category D recognition payment’ for the purposes of ss 35(4) and 36 of that legislation. Alternatively, it appeared to me that, especially in the light of s 6A of the Limitation Act 1969 (NSW) there was no impediment to RR bringing a common law action for damages for injury notwithstanding the age of the alleged misconduct. A common law action might be especially attractive since the limitations upon the recovery of damages under the Civil Liability Act 2002 (NSW) would not apply to intentional criminal conduct of the wrongdoer (s 3B(1)(a)).
In the former case, I acknowledge the indication in s 39(2) of the Victims’ Rights and Support Act 2013 (NSW) that a claimant would be expected to produce documentary evidence to support a claim and that legislative provision instances a police report. But the same legislative provision alternatively instances a medical report (and there was some evidence, contemporaneous to some of the incidents the subject of complaint, of RR seeing a medical practitioner and KA seeing a psychologist) and, conceivably, that medical or psychological report would be based upon a claimant’s instructions without a police report. The absence of a police report might be relevant to a claimant’s credit in a common law claim, but its absence was not necessarily definitive; still less a precondition to the statutory claim.
At any rate, the argument founders since it is not apparent that even after report was made to the police by the complainants (which appears to have occurred at some point in 2021) that either of them have subsequently taken the additional course of bringing a claim for compensation.
There is no foundation to support the view and I do not find that either complainant had a motive to lie or, indeed, lied at all.

Absence of complaint

Acknowledging the direction under s 294(2) of the Criminal Procedure Act, I do not place any weight upon the complainants’ not complaining. It struck me, with no disrespect to either of the complainants that, perhaps to different degrees, that they came from dysfunctional family backgrounds. Moreover, I consider that times have changed in terms of the expectations of complainants of child sexual abuse and understanding of why they may delay in making complaint or bringing complaint.
I found persuasive the evidence of the tendency witness, AA, who gave evidence of the accused telling her that she was unlikely to be believed if she spoke up. Although the complainants did not directly give evidence to that effect, using my common sense and life experience, I find that this was not an uncommon view within adult society at the time and that many children would have been conscious of this preconception. More importantly, I take into account the significant difficulty that persons who allege that they have been sexually abused as children have in speaking up, even in more contemporary times; and partly because of the deep sense (however unwarranted) of shame and distress associated with the events that they allege.

Assessing the accused’s evidence

I accept the Crown’s submission that the accused lied, in the multiple instances identified earlier in these reasons.
I find that he had been ‘tipped off’ by MS about allegations RR had made about him even before police served the provisional AVO (which occurred on 11 January 2022). There was no other rational reason why he would have asked the complainant as he did, whether he had been intimate with WS (as RR then was).
It was revealing that during the first of his conversations with RR that he adopted the stratagem of trying to ‘sweet-talk’ or placate RR, by feigning interest in catching up with her, who he described as ‘mate’ and whom he referred to in later parts of the conversation as ‘[male nickname for WS]’. In the conversation, he even referred to his recollection of receiving a report – from ‘[male nickname for WS]’ - about ‘[male nickname for WS]’’s activities at the Wall around Kings Cross (although RR responded that she did not recall telling the accused about this). I also find significant the accused’s statement on 8 January 2022 about his belief that ‘[male nickname for WS]’ had been knocked around.
This evidence of a familiarity and association with WS (as RR was formerly known) presented a striking contrast of his posture which featured his attempt to disassociate himself from ‘[male nickname for WS]’ when he told police, as he did on 11 January 2022, of only having met RR once in his life.
Thereafter, probably realising the inefficacy of the strategy to placate RR, he took other evasive steps including the frankly ludicrous attempt to suggest that he was someone else in his third conversation with RR (on 8 January 2022) even after earlier conversations (using the same mobile number) with her made it plain that he was the person formerly known as Karl Wasiak.
When referring to this evidence of what the accused said to RR in the course of the conversation on 6 January 2022, it will be self-evident that I am not treating the accused’s responses to RR’s accusations as an admission that he committed the acts the subject of her accusations. Rather, it is his responses to the accusations that relate (adversely) to his credibility.
Mindful of the care needed when drawing inferences adverse to the accused, I have considered the explanation that he gave in Court. It was thoroughly implausible. The first part indicated that the accused was a person who could switch on and off their capacity to tell the truth, depending on a particular occasion (ie whether or not he was ‘on oath’). The second part, regarding a concern about past persons bludging off him was, as I indicated to his Counsel, fanciful. There was nothing that was said by either complainant that could have rationally led him to think that they wanted any on-going association with him; let alone any on-going financial association.
I have considered the possibility that he lied for other unstated reasons (other than the one contended for by his Counsel), such as panic or a desire to avoid an unjust accusation, or the kinds of reasons identified in my earlier direction. I note in particular that the lies were spread out over a period from December 2021 to early February 2022 as various events unfolded, including the conversations with the complainants, the service of the provisional AVO and his arrest. They cannot be regarded as impulsive. I am satisfied that the accused told the lies he did because he was aware that if he told the truth, it may implicate him in the commission of the offences for which he is now charged.
Further, I do not accept that the accused was a witness of credit.
I have considered some of the prima facie exculpatory statements made out of court, and especially the out of court statements in which he disclaimed homosexual tendencies, but attach considerable caution to those statements. They come from a person who, on his own evidence, apparently attaches little value to truth-telling when not on oath.

In a sense, the disclaimer about homosexual tendency proved too much. In this regard, it was curious that in his first conversation with RR, it was the accused who instigated, or first raised, discussion about being intimate with ‘[male nickname for WS]’. It was also revealing that when RR answered that he had, his response was ‘Gees, I must have been drunk’. It was only later in the course of the same conversation that the accused denied homosexual tendency. The statement of denial was something of an afterthought, or at least a delayed statement, in which the accused was searching his mind for reasons why he could not have engaged in intimate conduct with WS. I found most unconvincing his explanation, when he gave evidence, that this was a deliberately ‘parochial’ or ‘laughing’ way of expressing a denial (T 84-85).
Of course, WS was a young child at the time of the events alleged (or the events referred to in her accusation to the accused). She was not close to being an adult in terms of his physical maturity as a male.
Having considered the evidence, I do not consider that the accused’s account that he could not have committed the offences against RR when she was younger might be true.
I also take into account the agreed fact that the accused’s former wife had told police, in the form of an out of court statement, that her children had not complained to her about being abused by the accused.
I give no weight to this evidence, substantially amounting to second-hand hearsay; particularly in circumstances where (a) the representations were made by the ex-wife when a criminal investigation into the accused was on foot; and (b) nothing was known about the conditions in which representations were made by the children to her. I note that no reference was made to this evidence in the accused’s Counsel’s closing address. I simply address it for completeness.
Also for completeness, and as I foreshadowed with Counsel for the accused during closing address, I find that his conduct when challenging officer Dean about what police were doing in the course of their investigation (ie challenging the extent of inquiries of RR’s siblings), upon his arrest, also did him no credit. He was aggressive and intimidating. Indeed, when considering the content of what he said to police, it tended to further reveal a capacity to recall dealings with RR, and even RR’s siblings, that was inconsistent with his other attempts to minimise his past association with RR; thereby further undermining his credibility.

Has the Crown discharged its burden of proof?

Consistent with the Liberato direction I gave myself, I now consider the third part of the direction: whether the Crown has proven the charges 12, 13 to 16 (incl) against the accused beyond reasonable doubt.
I have addressed Markuleski and reiterate that findings of not guilty on other counts does not derogate from my general acceptance of RR’s reliability (her credibility not being directly challenged).
I have also indicated that the accused’s conduct evincing a consciousness of guilt which assists the Crown in its endeavour to prove the remaining charges beyond reasonable doubt.

Tendency evidence

As indicated, the Crown relied upon the evidence of each complainant in relation to the conduct on the counts, as well as the evidence of AA, as tendency evidence.
As the Crown submitted and as Counsel for the accused properly acknowledged, simply because KA’s evidence on the specific charges concerning her did not suffice to establish the accused’s guilt did not mean that her evidence can be altogether discarded. Tendency is proven on the balance of probabilities^[6]. I accept the Crown’s submission that KA was doing her best to recall events occurring about 30 or 40 years before but that some details were beyond her reliable recall.
6. Criminal Procedure Act 1986 (NSW), s 161A(1). In JS v R [2022] NSWCCA 145, it was held (at [47]) that this provision not only applied to uncharged acts but also charged acts which were cross-admissible on a tendency basis.
I have already recorded that I found both complainants to be witnesses of credit.
AA stuck me as being a straightforward witness. She was scarcely challenged on the accuracy of the detail of the events of abuse she described beyond the generalised proposition put to her (which she rejected) that no sexual abuse occurred.
Her answers to the two main lines of inquiry in cross-examination, denying suggestions that she had encouraged the complainants to fabricate a complaint to assist them to make compensation claims and acknowledging her own conviction in 2008 - were plausible (and the former evidence in this regard was corroborated, separately by KA and RR). She confessed to the earlier conviction without embarrassment and gave an explanation for her conduct which, whilst it provided no excuse, could be reasonably be regarded as somewhat mitigatory. The cross-examiner did not challenge the correctness of that explanation.
I find her to be a credible and reliable witness.
There was substantial similarity in the recall of KA and AA of certain details surrounding the complaints that they made about the accused, although not so much as to invite scepticism as to whether they had collaborated in the preparation of their evidence, or that one witness’ version had contaminated another’s. On balance, AA’s recall of detail struck me as superior to KA.
But they both gave evidence, separately, of details surrounding the accused’s misconduct. They gave similar descriptions of the car utilised by the accused, the association of the occurrence of misconduct with the accused collecting takeaway food and both gave some evidence of the geographical location. The nature of the sexual contact was also similar, involving touching of the vagina; although there were some differences in that. Whereas KA believed that she was abused when she was aged between 8 and 10, AA also estimated that she was between 8 & 9 when she was abused (T 27.43, T 31.14). Given their not insubstantial age differential, this placed the alleged abuse in a broader period of the late 1970s to about 1983.
KA gave some peripheral detail in some instances, which gave me confidence in what she said. Thus, for the first incident she recalled the style of pyjamas she wore. For some of the instances, she recalled the place where the alleged misconduct occurred, by association with a tennis court. She gave evidence of her age when events occurred. She was not challenged on her evidence when she descended to detail.
I find that she was a credible and, on the whole, generally reliable witness.
I find, on balance, that the accused did engage in acts of sexual touching of the KA and AA. In relation to KA I consider on the probabilities that the accused engaged in the act identified in charge 3 occurred.
WS (as RR then was) was about a year younger than AA. WS was ranged between 3 and 7 when the alleged (charged) conduct was perpetrated upon him. I am conscious that in this age range, at this stage of WS’s life, the complainant was a young boy. All of the complainants were pre-pubescent when the alleged incidents occurred.
I find that on the balance of probabilities, the alleged acts identified in charges 9, 10 and 11 occurred even if not proven to the criminal standard.
Considering the asserted tendencies in the Crown’s notice, I also find that the acts which I have identified have been probably committed establish the asserted tendencies, although I have noted a slight differential between the Crown’s articulation (in its notice) of the age range of the complainants and my own.
I recognise the importance of not giving tendency evidence disproportionate weight. As chronicled in these reasons, there were some differences in the circumstances as between the complainants (and AA). I also recognise that just because I have found that the accused had the tendencies at the time of the offending, this does not automatically mean that they were acted upon on the occasions in question.
But I consider that the evidence makes it more likely that on the remaining counts that I am presently considering, (charges 12-16), the tendencies make it more likely that the accused conducted himself in the way the Crown alleges on those particular occasions.
Further, or alternatively, I accept RR’s evidence of other uncharged conduct in connection with the context direction that I gave myself. This places her evidence about the contested charges in the context of a relationship of abuse. Especially probative, in this regard, is that some of the uncharged conduct complained of featured the accused masturbating towards and ejaculating upon the complainant, and engaging in penile-vaginal intercourse.

Conclusions about remaining contested charges

In relation to charge 12, RR’s evidence was very detailed and coherent. To RR, the incident was memorable for at least the reason that it was the first time she had seen the accused’s ‘soft’ penis (T 53.15). She was unshaken when she rebuffed the suggestion that she self-consciously inserted the detail about the event occurring at 4pm in the afternoon. It was not suggested, for example, that this detail amounted to a recent invention.
There is, however, one matter I need to address in relation to this charge. The complainant estimated that it occurred not long before the complainant’s 6^th birthday (T 52-53). The complainant’s estimated date fell outside the date range in the charge as framed (1 December 1981 to 28 February 1982).
After closing addresses at the hearing, I alerted the parties to the contrast between the date range on the count in the indictment and the complainant’s evidence estimating when this conduct occurred and invited them to make supplementary submissions on what significance I should place on the contrast. That message and the parties responses’ appear in MFI 6. The Crown submitted that the complainant’s statement of time did not constitute a ‘defect’ (per s 16(1)(g) of the Criminal Procedure Act) and that time was not made to be essential ingredient. Counsel for the accused argued, with reference to the authority of DPP v Knight [2006] NSWSC 646 (at [29]-[30]). that the complainant had ‘narrowed the date of the offence to one specific occasion’.
I disagree. Unlike the situation for charges 13-16 (considered further below) when the complainant manifestly did tie the incident to a particular date and a particular occasion, RR did not do this in relation to her description of the incident at Blacksmiths Beach. She was simply asked to give a time estimate for the offending, which she did by reference to how old she was. There was no conspicuous reference to a specific occasion. Further, no point had been taken by Counsel for the accused, through her cross-examination of the complainant or through evidence in the accused’s own case that time was an essential ingredient in respect to this charge. No prejudice was identified in the requisite sense. It is not unfair for the Crown in the circumstances to depart from the width of the timeframe on the charge.
Further, and contrary to the accused’s submissions, the complainant’s attribution or estimate of an approximate date (which was that the complainant purported to provide), when set against the complainant’s detailed recitation of other circumstances that the complainant gave, did not substantially impair the complainant’s reliability.
The accused’s primary point in his defence centred upon the improbability of the accused wishing to expose himself to the risk of detection by engaging in abusive conduct in a public place, being Blacksmith’s Beach. The suggestion of an improbable allegation was not developed in any real way. As trier of fact, I know nothing about the extent to which the suburb of Blacksmiths was generally populated or more specifically Blacksmiths’ Beach was populated when the offence allegedly occurred, either in the course of a summer day, or more specifically, the time of the day (4pm), when the complainant recalled feeling cold, when the offending was alleged to have occurred.
To repeat, I give weight to the complainant’s context evidence of the accused masturbating himself on other uncharged occasions, and the tendency evidence I have referred to.
I take into account that amongst the accusations the complainant levelled at the accused in the complainant’s telephone conversation on 6 January 2022, the complainant did not refer to an incident at Blacksmith’s Beach. But I accept as plausible the complainant’s explanation that it was not her intention, in that conversation, to exhaustively catalogue all of her complaints about abuse.
I have also considered the forensic disadvantage that the accused labours under because of delayed complaint. Given the detailed nature of the complainant’s account of this incident, it is not easy to see that she could have been any more detailed than if she had complained earlier than she did, or perhaps reasonably should have (although the accused did not nominate when she should reasonably have complained). There is nothing that PA or GB could hypothetically have said that would assist the accused’s case in relation to this charge (or the remaining charges). I take into account the possibility of a distortion of recollection adverted to recently by Leeming JA (in his dissenting judgment) in Arizabaleta, but draw confidence from the detailed and logical nature of the complainant’s recollections. I recognise the possibility of the accused’s own memories being diminished with the passage of time, but note also that such specific disadvantage is not of any real moment given my finding that he is not a witness of credit.
I am satisfied beyond reasonable doubt that the accused assaulted RR (formerly WS, and at the time of the offence, a male person) by his conduct in masturbating himself for a period which also coincided with him causing RR to touch his penis, before ejaculating on to RR’s chest. This assault occurred at the same time as he committed an act (or acts) of indecency.
Charge 12 is proven.
Although of course, I treat them separately, for analytical purposes, it is convenient (initially) to group charges 13 – 16 (inclusive) together since they are all alleged to arise from the same alleged episode.
RR’s evidence ascribed a definite date and a definite occasion: the offending coincided with the celebration of her 7^th birthday. The complainant pinpointed two birthday activities involving the accused and the complainant: lunch at a takeaway restaurant and entertainment.
The circumstance that RR was equivocal in her evidence about whether the restaurant was KFC or Red Rooster was in my view, neither here nor there. Even in the prior statement to police, where she made reference only to Red Rooster, she did not purport to state that her recollection was certain. The clear connotation in her evidence in Court, as it was in her police statement, was that the accused took the complainant to a takeaway (or eat-in) chicken store.
In reaching this view, although I have considered the application of s 293A, I would not have found that any difference in this detail materially affected her reliability in any event.
As to the associated challenge to RR’s reference to Timezone, again, I place little weight upon that aspect of her evidence. The complainant was partly associating the offending with an entertainment activity. Although Timezone, a currently thriving franchise was not in existence in May 1982, RR’s evidence of attending an entertainment facility that resembled what is now Timezone was inherently plausible. It is a common experience of people when utilising a service, such as a facility (like an entertainment service) to later misstate the brand of service. Common experience shows that this can be affected by the power of advertising as an agent on the human mind. RR’s reference to Timezone was neither here nor there.
The complainant’s evidence in respect to the acts making up each charge within this group was detailed. It was inherently memorable (leaving aside the recollections of the associated birthday activities): involving fellatio upon the complainant and, penile-anal intercourse. It is not apparent that these types of sexual acts had previously occurred. After the penile-anal intercourse, the complainant then gave further detailed evidence of the aftermath, in which she recalled (unsurprisingly) the pain in the complainant’s buttocks, observed blood in the complainant’s underpants, recalled the advice the complainant received from the complainant’s grandmother to rectify under the (uninformed) belief that the complainant was only experiencing constipation and attended a family doctor to receive a prescription (T 55-56).
I again take into account the forensic disadvantage that the accused was placed under. But I reach the same conclusion about the significance of this factor as I did in relation to charge 12, for the same reasons.
I am satisfied that the Crown has proven beyond reasonable doubt each of the acts constituting charges 13, 14, 15 and 16 respectively. That is to say, I am satisfied beyond reasonable doubt that:

the accused pulled the complainant’s penis out of the complainant’s pants (charge 13);

the accused started to lick and kiss the complainant’s penis (charge 14);

the accused inserted his penis and penetrated the complainant’s anus (charge 15); and

the accused ejaculated over the complainant’s back and buttocks (charge 16).

As indicated, there was not dispute that if these acts occurred, as I have found them to have occurred, they were all assaults, and for the purposes of charges 13-14 and 16, also constituted acts of indecency and that for these charges, the complainant was a male. There was also no dispute that that for charge 15, the act constituted an act of buggery with (the corollary of its being committed against) a male complainant.
All of charges 13-16 inclusive are proven.

Verdicts

Mr Williams, please stand.
Following the directed acquittals in relation counts 1, 7 & 8 previously made on 25 October 2023, the verdicts on the remaining counts on the indictment are respectively as follows:

For count 2, I find that the accused is not guilty.
For count 3, I find that the accused is not guilty.
For count 4, I find that the accused is not guilty.
For count 5, I find that the accused is not guilty.
For count 6, I find that the accused is not guilty.
For count 9, I find that the accused is not guilty.
For count 10, I find that the accused is not guilty.
For count 11, I find that the accused is not guilty.
For count 12, I find that the accused is guilty.
For count 13, I find that the accused is guilty.
For count 14, I find that the accused is guilty.
For count 15, I find that the accused is guilty.
For count 16, I find that the accused is guilty.

The Accused is convicted on counts 12 – 16 (inclusive) on the indictment.

**********

Endnotes

Decision last updated: 16 November 2023

Medium Neutral Citation:	R v Williams [2023] NSWDC 490
Hearing dates:	23, 24, 25 October 2023
Date of orders:	27 October 2023
Decision date:	27 October 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [308] – [309]
Catchwords:	CRIMINAL LAW – trial by judge alone – alleged historical sex offences in late 1970s and early 1980s – two complainants - serial incidents of alleged indecent assault - buggery - Crown reliance upon tendency evidence – lies as consciousness of guilt
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3B Crimes Act 1900 (NSW), ss 97, 97A Criminal Procedure Act 1986 (NSW), ss 16, 161A, 293A, 294 Evidence Act 1995 (NSW) Victims’ Rights and Support Act 2013 (NSW), ss 35, 36, 39
Cases Cited:	Arizabaleta v R [2023] NSWCCA 217 DPP v Knight [2006] NSWSC 646 Haile v R [2022] NSWCCA 71 JJB v R [2006] NSWCCA 126 JS v R [2022] NSWCCA 145 Park v R [2023] NSWCCA 71 PWB v R [2011] NSWCCA 84 R v Bauer (2018) 266 CLR 56 Robinson v R (No.2) (1991) 180 CLR 531 Schoffel v R [2023] NSWCCA 88 W v R [2014] NSWCCA 110
Category:	Principal judgment
Parties:	Rex (Crown) Karl Williams (accused)
Representation:	Counsel: Mr B Queenan for the Crown Ms R Court for the accused Solicitors: Office of the Director of Public Prosecutions (Crown) Benjamin Leonardo – The Defenders (accused)
File Number(s):	2021/330971
Publication restriction:	Non-publication of names of complainants and tendency witness