R v YY No. 1

Case •

[2016] NSWDC 362

•

19 October 2016

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v YY No. 1 [2016] NSWDC 362
Hearing dates:4 October 2016 to 10 October 2016
Date of orders: 19 October 2016
Decision date: 19 October 2016
Jurisdiction:Criminal
Before: A Haesler SC DCJ
Decision:

GUILTY - s 61M(2) x 8 - counts 1,2,3,4,6,8,9,13

GUILTY - s 61O(2) x 2 - counts 5,7

GUILTY - s 66C(2) x 2 - counts 11,12

NOT GUILTY - s66C(2) x 1 - Count 10

Catchwords: Judge Alone Trial; sexual intercourse child; Acts of indecency toward child; indecent assault; grandfather; tendency; general admissions; exculpatory ERISP; accused silence; delay; no concoction; good character; compelling account by complainant.
Legislation Cited: s 61M(2); s 61O(2); s 66C(2 Crimes Act 1900
s 294 Criminal Procedure Act 1986
s 144; s 165B Evidence Act 1995
Cases Cited: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
IMM v The Queen [2016] HCA 14
Longman v The Queen (1989) 169 CLR 79
Category:Principal judgment
Parties: YY (accused)
Director of Public Prosecutions (Crown)
Representation:

Counsel:
Mr M Fox (for the ODPP)
Ms C Davenport (for the accused)

    Solicitors:
Ms M Aresh (ODPP)
Ms J Hall (for the accused)
File Number(s):2015/87400
Publication restriction:The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

Judgment

INTRODUCTION

  1. A person accused of a serious crime can, after receiving legal advice, waive their right to a trial by jury and elect for a trial by judge alone. YY made such an election. The Director of Public Prosecutions consented to that course.

  2. On 4 October 2016 an Indictment was presented at Wollongong District Court containing 13 Counts. The offences are said to have occurred at Berkeley, Warrawong and Kembla Grange. The complainant, AA, was born on 21 November 1996. The accused is her maternal grandfather.

  3. Counts 1, 2, 3 & 4 allege that the accused assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her. The offences are said to have occurred between 21 May 2004 and 21 November 2005: s 61M(2) Crimes Act 1900.

  4. Count 5 alleges the accused committed an act of indecency on AA then a child aged 8 - 9, during the period 20 November 2004 to 21 November 2006: s 61O(2) Crimes Act 1900.

  5. Count 6 alleges that the accused assaulted AA then a child aged 9, and at the same time committed an act of indecency on her. The offence is said to have occurred between 20 November 2005 and 21 November 2006: s 61M(2) Crimes Act 1900.

  6. Count 7 alleges the accused committed an act of indecency on AA, then a child aged 9, during the period 20 November 2005 to 21 November 2006: s 61O(2) Crimes Act 1900.

  7. Count 8 alleges that the accused assaulted AA, then a child aged 10, and immediately after committed an act of indecency in her presence. The offence is said to have occurred between 20 November 2006 and 21 November 2007: s 61M(2) Crimes Act 1900.

  8. Count 9 alleges that the accused assaulted AA, then a child aged 10 - 11 and, at the same time committed an act of indecency on her. The offence is said to have occurred between 1 January 2006 and 31 December 2007: s 61M(2) Crimes Act 1900.

  9. Counts 10, 11 and 12 allege that the accused had sexual intercourse with AA, then a child aged 10 - 11. The offences were aggravated by her being under his authority. The offences are said to have occurred between 21 November 2006 and 21 November 2008: s 66C(2) Crimes Act 1900.

  10. Count 13 relates to a further allegation that the accused assaulted AA then a child aged between 7 and 10 and at the same time committed an act of indecency on her: s 61M(2) Crimes Act 1900. It is said to have occurred between 21 May 2004 and 30 April 2007 and to have been witnessed by a school friend, AFB.

  11. At various times during the trial the Indictment was amended, without objection, to correct typographical errors and revise dates to accord with the evidence led.

  12. The principle prosecution witness was AA. Her mother CD, her sister, and friends, AFB, CE and NS, also gave evidence. So too did the Officer in Charge, Detective Senior Constable Fort. Exhibits, including a Listening Device recording of a conversation between the accused and the complainant and the accused's recorded interview with police were tendered: Exhibits C and K.

  13. There was a defence case. The accused did not give evidence. He called his daughter, VB, his granddaughters, DB and SB, and two gentlemen from his golf club, Mr C and Mr D. In addition to evidence directly relevant to facts in issue each defence witness spoke of the accused's good character.

  14. As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and how they operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined, so as to justify the verdicts reached.

ELEMENTS

  1. The prosecution must prove each element of an offence.

  2. Here place was not put in issue.

  3. The Prosecution specified certain time periods during which it is said that the events the subject of each Count occurred. Some of those times were varied. The only critical time element for an offence is that it occurred when: for Counts 5 and 7 that AA was aged under 10; for Counts 10, 11 and 12 that she was aged under 14 and for the remaining Counts 1, 2, 3, 4, 6 ,8, 9 and 13 that she was aged under 16.

  4. Apart from the specific age limits which are elements of a Count, the Prosecution do not have to prove beyond reasonable doubt an allegation in a Count occurred strictly within the time period set out in the indictment. However, the defence have used these dates to prepare for trial and to respond to the allegations. An allegation that a specific event, the subject of the Count, occurred within the time periods initially specified is later modified is a guide to my assessing of the evidence, in particular the accuracy and reliability of the complainant's account in relation to that Count.

  5. "Age of complainant":   There is no dispute that AA was born on 21 November 1996. She was 7 or 8 years old between 20 May 2004 and 21 November 2005, 9 years old between 20 November 2005 and 21 November 2006 and 10 years old between 1 January 2006 and 31 December 2007.

  6. "Assault": includes the deliberate striking, touching or the application of force to the complainant, without her consent and without lawful excuse. The slightest touch is sufficient to amount to an assault. It does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. The assault can involve the same action as the act of indecency. Here consent, accidental touching and lawful excuse have not been put in issue, except in relation to Count 13. The defence case is that what occurred there was ordinary play between a grandfather and granddaughter. So far as the remaining Counts are concerned the issue is whether there was any touching at all.

  7. "Indecent": The word indecent means contrary to the standards of ordinary and, therefore, respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. It is for me to determine and apply the standards prevailing in our community.

  8. "Sexual intercourse": Sexual intercourse includes the penetration, to any extent, of a complainant's genitals by the penis or finger or fingers of the accused. The term 'genitals' includes, but is not limited to, the vagina. It includes any part of the female body's external reproductive organ capable of penetration.

  9. "Under authority": "A person is under the authority of another if the person is in the care or under the supervision or authority, of the other person": s 61H(2) Crimes Act 1900.

  10. While I must independently determine what evidence I accept relating to each Count, as I understand it, it is not contested that if each event occurred; and occurred as AA said it did, the elements of Counts 1-9 and 11 and 12 would be proved. As to Count 13, if the events occurred as AFB described them the elements of that offence would also be satisfied. There was no prosecution evidence about Count 10 other than the accused's denial of the allegation in his police interview. YY must be acquitted of that Count.

KEY DIRECTIONS

Onus

  1. The most important direction in any criminal trial is this: the accused has no onus of proving anything. He is presumed to be innocent.

  2. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict on a Count if I have no reasonable doubt the prosecution has proved its case, that is; each element of an offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, YY must have the benefit of any reasonable doubt and I must return a verdict of not guilty.

Why lie?

  1. The defence case is that the complainant, her mother, her sister and friends have together manufactured a series of false allegations some of which picked up innocent incidents and twisted them. Ms Davenport, Senior Counsel for the accused, in opening and closing, and in cross-examination of the complainant and other witnesses suggested that they were lying and had a motive to lie; that is, to get back at the accused for stopping funds to CD, to extort money from him and or because of animosity toward him for taking up with another woman within weeks of his first wife's death. The accused also advanced reason why these lies would be made up in the conversation recorded on a listening device and his police interview: Exhibits C and K.

  2. I must note what to a judge is obvious. The accused does not have to prove anything. He bears no onus of proving fabrication or the existence of a motive for the fabrication of the allegations against him. What flows from this is where the defence directly assert a lie was told they do not have to prove the lie or that a witness had a motive to lie or what that motive might be. Further, it would be wrong to conclude that the complainant, or a witness who supports her, is telling the truth because there is no apparent reason for her to lie. People lie for all sorts of reasons. Sometimes it is apparent, sometimes it is not. Sometimes the reason is discovered, sometimes it is not. I cannot be satisfied that a witness is telling the truth merely because there is no apparent reason for her to have made up an allegation. There might be a reason for a complainant or other witness to be untruthful that nobody knows about.

The Accused's Silence

  1. YY did not give evidence. He had no obligation to do so. He is presumed to be innocent. As a matter of law, that election cannot be used against him. It constitutes no admission by him and no such inference must be drawn from that fact. His silence in court is not be used to fill gaps in the evidence and may not be used in assessing whether the prosecution has proved its case beyond reasonable doubt. I do not speculate about what he might have said in evidence.

  2. He did call evidence in his defence. Again, there was no obligation to do so. He assumed no obligation to persuade me to accept that evidence. I can use that evidence in determining whether or not the prosecution have proved its case.

  3. YY agreed to be interviewed by Detectives. His response to the allegations can be found in Exhibit K. In it he emphatically denied the allegations and put forward possible motives for false complaints being made against him.

  4. He was also subject to a covert police recording of a conversation with the complainant: Exhibit C. In it he emphatically denied the allegations and put forward possible motives for false complaints being made against him.

  5. I must consider what he said on both these occasions. I can accept or reject what he says. What he said may cause me to have a doubt about an allegation or allegations or it may not.

  6. I consider the police interview along with all the other evidence but I note his denials and his version of events were not made on oath and while in the police interview he was questioned by an experienced Detective his statements were not tested by cross-examination in court.

  7. If what was said in a recording leaves me with a reasonable doubt as to whether the Prosecution has made out its case in respect of any essential matter that it must prove then I am bound, in law, to bring in verdicts of "not guilty". But I do not have to believe that the accused is telling the truth before he is entitled to be acquitted.

  8. Here there is a conflict between the evidence of, and in support of, AA and what the accused said and his denials. It would be wrong if guilt or innocence turned upon a simple choice between two inconsistent versions. I do not decide which version I prefer. The Prosecution must satisfy me beyond reasonable doubt that I should reject the accused's denial and his version of events as a reasonably possible version of the facts. That is not the end of the matter however, as before I can convict, the prosecution must then prove each element of an offence beyond reasonable doubt.

Assessing the Evidence

  1. The evidence must be considered as a whole. Some evidence was not in dispute - some was hotly contested. As part of my fact finding process I am entitled to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including my life experiences as an individual in society and my training and experience as a lawyer and judge. That evaluation must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge set out in s 144 Evidence Act 1995 (NSW). And, unless the requirements in s 144(4) are complied with, so as to ensure a party is not unfairly prejudiced: see Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 at [68]-[69].

Assessing witnesses

  1. For most people giving evidence in a trial is not common and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables.

  2. I must take care. The manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. The impression made by a witness cannot replace formal evaluation of what is said by reference to all of the evidence and what was said by others. To this extent assigning too much probative value to "common sense" my experience of other situations; a witness' confidence; a witness' demeanour; or a witness' ability to survive cross-examination, can lead to error.

  3. I must assess each critical witness' credibility; in particular the witness' ability to observe or remember facts and events. Care must be taken to put aside biases and prejudices and to avoid pre-judgment. I must look to the evidence and inferences properly drawn from the evidence and ask: Does it rationally affect my assessment of the probability of the critical facts in issue in these trials?

  4. I must consider each Count separately by reference to the evidence that applies to it but if I have a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more Counts, that doubt must be taken into account in assessing the truthfulness or reliability of the complainant's evidence on other Counts.

Special arrangements

  1. When AA gave evidence CCTV was used. She did come into court; the court was closed and she had a support person with her. This is standard procedure. I do not draw any inference against the accused because these procedures were adopted nor do I give the evidence any greater or lesser weight because it was given and tested in this manner. I assess her evidence in the same way as I assess the evidence of every other witness in the trial.

Delay

  1. The complainant's delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation is false. There may be good reasons why a child victim of an indecent or sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. Here AA spoke of her young age, what the accused told her about possible breakup of the family and her fear she would not be believed.

  2. It is important that I also appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case. The restriction in s 165B (1) Evidence Act 1995 does not apply but the test would have been met in any event. I apply the common law caution: Longman v The Queen (1989) 169 CLR 79.

  3. The delay means that the complainant's evidence cannot be as fully tested as it otherwise might have been. The complainant's inability to recall precise dates and details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on her evidence by pointing to circumstances which may contradict her. Had the allegations been brought to light, and the prosecution commenced, much sooner, it would be expected that her memory for some details such as dates and places would have been clearer. This may have enabled her evidence to be checked against independent sources so as to verify it, or to disprove it.

  4. Had the accused learned of the allegations at a much earlier time he may have been able to recall relevant details, which could have been used by his counsel in cross-examination of the complainant; for example, what he was doing and where he was at particular times on particular dates. Had he learned of the allegations earlier he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. In particular two important witnesses his wife, PD and his later partner, PP, have died.

  5. As a result, I warn myself that before I could convict the accused I must give the prosecution case the most careful scrutiny, taking into account his situation of significant disadvantage and the consequence that he has been prejudiced in the conduct of his defence.

Tendency

  1. The prosecution rely upon the complainant's evidence in the other charges against the accused, if proved, and what he is said to have done to her sister NP and what was seen by AFB, to show not just what those facts may prove but also to show that the evidence reveals there is a pattern of behaviour by him. They say this evidence shows that his state of mind was to have a sexual interest in female children under 16 and he had a tendency to act in a particular way; by using familial circumstances to create opportunities to engage in sexual conduct with related female children, to engage in such conduct when out of the vicinity of other family members and to grab a child's breast from behind and rub his penis against the child's genitals and or buttocks: Tendency Notice: MFI 4.

  2. If the Prosecution establish the evidence proves this tendency; it may be used in proof of all the Counts. They rely first on what AA said about events which related to individual Counts. They submit that if I find one or more proved beyond reasonable doubt they could establish the tendency put forward. That proved tendency could, in turn, be used by me when considering whether other Counts have been proved beyond reasonable doubt. The High Court considered some relevant issues recently in IMM v The Queen [2016] HCA 14. That case was concerned with uncharged acts but what was said has applicability to charged acts, which rely solely on a complainant's evidence. In brief summary the majority joint judgment noted that:

Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

  1. Accordingly, unless there was a proved event which was corroborated or supported by evidence independent of the complainant I do not intend to rely upon what AA said to prove any asserted tendency.

  2. Here however, the Prosecution also relied on what her sister NP said was done to her. If accepted, it was substantially similar and occurring in similar circumstances to that which is now alleged by AA. They also rely on what was seen by her friend AFB.

  3. I could only use this evidence from sources independent of the complainant in the way the Prosecution asks if I make two findings beyond reasonable doubt: First, that I am satisfied beyond reasonable doubt that one or more of the acts alleged by NP and AFB occurred. In making that finding I must assess whether there is a real, not speculative, chance that the allegations were fabricated or concocted. If I cannot find that any of these acts is proved beyond reasonable doubt, then I must put aside any suggestion that the accused had the tendency advanced by the Prosecution.

  4. If I do find beyond reasonable doubt that one or more of those acts occurred, I then ask myself whether, from the act or acts that I have found proved, I can infer or conclude beyond reasonable doubt that the accused had the tendency that the Prosecution alleges. If I cannot draw that inference or conclusion beyond reasonable doubt, then again, I must put aside any suggestion that the accused had the tendency alleged.

  5. If both findings are made, I may use the fact of the accused's proved tendency and or state of mind in considering whether the accused committed the offences charged.

  6. The evidence must not be used in any other way. It would be completely wrong to reason that, because an accused has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences.

Context

  1. There is evidence of other acts of sexual misconduct by the accused toward the complainant other than those alleged. That evidence includes mention of an incident with a mobile phone camera in a car at Dapto; something happening under the house, and his showing her pornographic videos, including while AFB was present.

  2. I am required to indicate that I understand the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the complainant's evidence towards proof of the Counts into what the prosecution says is a realistic and intelligible context. By context I mean the history of the conduct by the accused toward the complainant she alleges took place. It enabled her to place the charged acts into a narrative and helped her explain what otherwise might be considered isolated acts occurring without any reason or any circumstance to link them. If the evidence had not been led the complainant's evidence may have seemed less credible because it was less understandable.

  3. I do not substitute evidence of other acts for a specific Count. I repeat, before I can convict the accused in respect of any charge in the indictment I must be satisfied beyond reasonable doubt that that particular allegation occurred. It would be completely wrong to reason that, because the accused has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences. That is not the purpose of the evidence at all.

Good character

  1. I intend to proceed on the basis that YY has no relevant criminal convictions given the time that has elapsed since his earlier contact with the courts. Friends and family spoke of his good character and upright behaviour toward others, particularly his grandchildren. I can take that evidence into account when considering the question of his guilt. It entitles me to consider the improbability of his having committed the offences alleged. Further, when considering his assertions he did not commit the offences, I must bear in mind that they were made by a person of good character.

  2. None of this provides the accused with some kind of defence. People of prior or otherwise apparent good character do commit offences and offences of this type. It is only one of the many factors that I take into account when determining whether I could be satisfied beyond reasonable doubt of his guilt.

Inferences

  1. As I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful about drawing any inference adverse to him. This includes any inference about his state of mind. I must carefully examine all the evidence in relation to all the relevant circumstances and examine any possible inference to ensure that it is a justifiable inference. I must not draw any inferences from the direct evidence unless it is the only rational inference in the circumstances.

Complaint

  1. The Prosecution relies upon what the complainant said after having been - as she said - sexually and indecently assaulted by the accused, as further evidence that such an assault did occur: In particular, the evidence that the complainant gave of her telling her mother about the accused's conduct. I need to consider the complaint in context noting what was said to whom and when the complaint was made.

  2. Ordinarily complaint evidence operates to show some consistency between conduct and the allegation now made against the accused. It can support the Prosecution case because it makes the evidence more believable. Inconsistency, opportunity to confabulate, the possibility of concoction, particularly if combined with unexplained delay, could conversely operate to damage her credibility. Given the challenges made to AA that caution applies here: s 294 (2) (c) Criminal Procedure Act 1986.

  3. I remind myself, particularly given AA's age and relationship to the accused, that there may be good reasons why she did not raise the allegation immediately. A failure to do so does not mean that the allegation is false: s 294 (1) Criminal Procedure Act 1986.

  4. What she said about the accused's conduct toward her can be used as some evidence of the truth of what she said: s 60 Evidence Act 1995. However, here the time delay is such that that factor could not add to the probative value of complainant's account as "truth."

  5. Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

  6. Here the evidence at trial and the challenges to it require that when I consider the complainant's account and its repetition I would have to consider whether it was invented or concocted, whether as part of a plan to defraud the accused or otherwise. If that possibility is reasonable and cannot be excluded her complaint would have no probative value.

Alleged admissions

  1. The Prosecution rely on evidence that the accused, by his conduct and words at the meeting at CD's house in April 2014, admitted he had sexually interfered with AA.

  2. Some reliance is placed on conversations with CD in September 2013.

  3. YY denies ever doing anything or saying anything of the sort.

  4. I will have to decide whether the admissions were made and if so what they convey. But when considering whether to accept them or not I must take into account that:

  1. The evidence is contested.

  2. There is no independent record of what was said such as a video or audio recording.

  3. That one witness, PP, is now deceased.

  4. That there is some conflict between prosecution witnesses as to whether NP was present at the 2014 meeting and able to see and hear what she deposed to.

  5. That not every account given exactly matches the other.

EVIDENCE - KEY WITNESSES

AA

  1. AA, now 19, told me of the incidents said to make up Counts 1 to 9, 11 and 12, and a number of incidents that could be Count 13 but which she did not particularise.

  2. What she described being done to her or in her presence were serious crimes. Challenge was made to her descriptions, in particular how the physical acts described could have occurred: Grabbing breasts that were unlikely to have been developing in one so young (counts 1, 2, 3); rubbing of her groin by the accused's genital area (Counts 4 & 6) and the acts in the bushes behind the golf course toilets (Count 9). Challenges were made to her accounts based on the improbability of events occurring: masturbation with real risk of discovery (Counts 7, 8 & 9).

  3. My impression as evidence was given was that no event described was implausible or impossible. AA was at times emotional but seemed genuine. She did not appear to be dissembling or attempting to embellish. She may have a capacity for invention but this was not apparent. While I can note these things I do not act on them alone.

  4. Before I could accept and act on her accounts I must reflect and consider her descriptions of what occurred evaluating what she said with and against other evidence: what I know from witnesses testimony and other exhibits, about the garage, the grandparent's home, the 4 x 4 Hilux and the golf club and who would or should have been present at the time. I have to give due consideration to the impact of delay on her account and the capacity of those appearing for both sides to get me information and witnesses who could inform me about 2004-2007. I have to give due consideration to YY's denials and evidence called and the case made for him.

  5. AA's recollection of events over 10 years ago was tested with precision. Ms Davenport sought some a rationale for why she kept going to her Pop's and why she spent time with him if these assaults were occurring. AA at times expressed herself in general terms, "I would" and "I would've" rather than "I did … He did". This is not unusual but it requires me to assess and discern whether this terminology illustrates her process of recollection - selecting a specific real event from the general - or reconstruction or invention.

  6. Ms Davenport made the point that this way of describing events showed AA was remembering her statement not real events. With respect, this was not obvious to me, rather AA seemed to be genuinely attempting to put events in sequence, some of which she has detailed in her statement, others she had mentioned in her complaints, including in the listening device conversation, and others that came to her as her memory was jogged by the process of giving evidence. Her recall of detail and how those details were recalled gave her account substance. As is not unusual, during cross-examination she became more focussed but her recall remained consistent. Her indignation at being accused of fabricating the allegations did not seem to be feigned.

AFB

  1. AFB, a friend of AA's, was a regular visitor to the accused's home when they were both in primary school. Her evidence was important. First, she said she saw pornographic videos being played when the accused was present. Secondly, she saw the accused on top of AA on a bed on occasions. Thirdly, she remembers one occasion when he was laughing and, using a term she has learnt since then, 'dry-humping' her. An event which, if accepted, would prove Count 13. Fourthly, Ms Davenport in cross-examination sought not to challenge that such events occurred but rather raise the possibility that what she had seen were accidental (the porn videos) or innocent (the bed incident).

  2. Acquired knowledge and experience allows us all to, on review, interpret our past. The question is has our recall been so influenced that accuracy is lost? Nothing AFB told me indicated concoction. In general terms she corroborates AA's recollections.

NP

  1. NP had a problem with the credibility of any account she gave. However, much of what she said about what occurred within her grandfather's, and her, family was consistent with other evidence and uncontroversial. Her past admitted lie was an elaborate fabrication. Her evidence about her grandfather's behaviour toward her did not appear to be. She mentioned some incidents, one in particular, but they were not embellished.

NS

  1. NS’s evidence about complaint could not add to the prosecution case except that portion of it where she spoke of AA's reason for raising complaint with her mother. This shows some consistency with AP's account and while it is possible she too was enlisted, perhaps unwillingly, in an elaborate ruse, it makes this defence scenario less likely.

CE

  1. While CE was far from "word perfect" in her account of the meeting at CD's house, she was in no doubt that YY's behaviour that day demonstrated contrition, not merely concern. She appeared to be doing her best. No hints of participation in a conspiracy against YY were given.

CD

  1. If there is a conspiracy to falsely accuse YY of terrible crimes, CD must be its instigator. However, I could not detect any instance where she sought to bolster her daughter's account by adding a detail. What details she added: for example: Count 11, the phone call, differed from her daughter's. Her account of how she came to hear of both daughters' complaints and what occurred during the meeting at her home again indicated consistency rather than invention.

The Accused – ‘YY’

  1. YY did not give evidence. He was no under any obligation to do so, but I have the benefit of two recordings, Exhibits C and K, in which he emphatically denies these allegations.

  2. Considerable time has elapsed since 2004 - 2007. Witnesses have died. In many respects, as Ms Davenport submits, there is little more he could have done.

  3. There was a marked change in attitude to AA from his version of the meeting at CD's, where he said he expressed concern to the dismissive tone demonstrated on the listening device recording.

  4. In his police interview his denials were accompanied by a few important details:

  1. He did not work on his car in the garage (Count 1): Question & Answer 48.

  2. The term 'spoof' (Count 5) is not one he has used or uses: Question & Answer 115.

  3. He has never used a condom (Count 8) Question & Answer 130

  4. He never took only one child to golf except with his wife (Count 8): Question & Answer 119.

  5. None of his shorts had zippers: Question & Answer 137.

  6. He did not carry a handkerchief: (Count 9) Question & Answer 140.

  7. He remembers the girls coming in when a porn movie was showing: Question & Answer 120.

  8. NP did spill butter on her shirt: Question & Answer 202; 213.

  9. There was no scrap bucket in the house (Count 3): Question & Answer 88.

  10. He rarely saw his family after his wife died. He did not know why: Question & Answer 150 &151

  11. Their grandmother "gave them everything - I give them nothing": Question & Answer 151.

  1. There is nothing in either the listening device recording or police interview that compels rejection of YY's denials. Some things said and the way they were said, such as, "never had a condom on my body in my life" had a ring of conviction. Others such as his denial he worked on his car in the garage, or never took a child to golf, did not. Nothing said in either recording undermined or caused me to doubt the complainant's account, but the accused, I remind myself was under no onus. I review what he said as part of my consideration of all relevant factors. Ultimately, I would have to reject his denials before I could consider whether a Count has been proved by all the evidence before me.

VB

  1. VB told me of her father only wearing one brand of shorts - with draw strings not zips. She said she always brought meals to her parents, not CD. She would do this in addition to caring for her own children and working split shifts as a cleaner. I found it hard to accept her account that she alone provided meals given her other commitments.

DB and SB

  1. VB’s daughters, DB and SB, gave what was in effect tendency evidence - that in his dealing with them the accused had not been anything other than a gentleman, a caring grandfather, who would act accordingly.

  2. I accept this is how YY behaved toward them. SB also told me she had gone to golf alone with him and had watched him work on his car in the garage.

Mr C and Mr D

  1. Two golfing friends, Mr C and Mr D, spoke of the accused's good character and their memory of the plants near the toilet block that featured in Count 9. There was a difference in their memory of the sort of shorts allowed to be worn on the golf course. Mr D said, as a former course staff member, that shorts such as Exhibit 1 would be allowed. Mr C as a regular patron, said that they would not meet club standards.

EVIDENCE - Counts

Count 1

  1. At TT 6-7 AA described how the accused came over to her in the garage and from behind, grabbed 'her boobs' over her clothes. She was in the garage getting an ice block from the fridge. He was working on his car. The accused denied the allegation: Exhibit K, Police Interview Question & Answer 45

  2. Three aspects of this event stand out:

  1. AA said her 'boobs' were just developing despite being 7 or 8 years old.

  2. YY told police he did not work on his car in the garage. SB said he did.

  3. AA says he said "your sister let me". Something she later disclosed to her mother.

Count 2

  1. At TT 7 and 8, AA told me a few days after the garage incident she went into her Nan and Pop's kitchen to get a chocolate and the accused put his arm around her and squeezed her boobs. She walked back outside to other family members. She said "I had to act normal". She didn't say anything - "I couldn't because I couldn't. I was a kid, he's not meant to do that, I didn't know what to say".

  2. YY denied the allegation: Exhibit K, Police Interview Question & Answer 70.

Count 3

  1. At TT 9, 10 AA said that soon after the previous incidents she was told to get scraps from the kitchen. She went to the shed where the dry dog food was kept. He shut the door and squeezed her 'boobs' from the front - she then said "get off me" and they went to feed the dogs.

  2. YY denied the incident: Exhibit K, Police Interview Question & Answer 97.

  3. He later said there was no scrap bucket, the children did not feed the dogs and that this shed did not have a door: Exhibit K, Police Interview Question & Answer 88-97.

  4. Other evidence cast some light on these matters - witnesses said children did not go into the dog cages but they did help get the feed. A number mentioned the kitchen scrap bucket. No evidence was given to support or contradict the proposition that the shed had a door.

Count 4

  1. This incident is said to have occurred in another shed on the property between the two dog cages: TT 10-14; see sketch, Exhibit A.

  2. AA says the accused, grabbed her boobs, she said "Pop, someone's going to come". He then turned her around and "rubbed his like hard… his penis, obviously, against my groin area". They then fed the dogs and sat by the frog pond.

  3. In cross-examination (TT 93) and later in submissions, Ms Davenport raised questions about how, given their relative sizes, the accused could have done what is alleged.

  4. YY denied the allegation: Exhibit K, Police Interview Question & Answer 100.

Count 5

  1. At Transcript 14 the allegation was made that the accused, while in the dog "Nudge's" cage, and while AA was in the backyard, masturbated the dog. He then lifted the dog up so it stood on its hind legs and continued to masturbate it to ejaculation, saying "I made him spoof".

  2. YY denied the allegation: Police Interview Question & Answer 115-116

  3. In cross-examination (TT 94-98) Ms Davenport closely challenged AA's account as being an invention and materially inconsistent with the account in her statement to Police.

Count 6

  1. AA's evidence at TT 57-58 relates to an allegation that when at her grandparent's house she walked into the kitchen and the accused grabbed her and pushed her on to the table. He then rubbed his groin on her - his "dick" was hard. He made an attempt to take her clothes off. She can't recall what she said.

  2. Again, YY denied this allegation: Exhibit K, Police Interview Question & Answer 125.

  3. Ms Davenport suggested that what happened in the kitchen was the complainant asked her grandfather for money - this suggestion was rejected: TT 103.

Count 7

  1. At a family gathering AA was watching the movie 'Shrek': TT 20. She was alone on the lounge. The accused came to the lounge-kitchen door: see sketch Exhibit D. He pulled down his pants, exposed his penis and masturbated to ejaculation. He wiped the ejaculate from the floor and left. Nothing was said. This incident was denied: Exhibit K, Police Interview Question & Answer 126.

  2. Ms Davenport, in cross-examination and later in submissions, questioned how this could have occurred given the risk of discovery and questioned why the complainant didn't leave: TT 111-112.

Count 8

  1. The evidence about this allegation can be found at TT 21-23 and the photograph Exhibit F. CD was unemployed at the relevant time but she did go to occasional job interviews. On one such occasion the accused drove her to a nursing home in Warrawong. It has a car park now: Exhibit F. AA came with them. When her mother went inside she sat in the front passenger seat of her Pop's 4x4 Toyota Hilux. She says he undid the zipper of the shorts he always wore, placed her hand on his penis and held it there making her pull it. He then let her hand go, masturbating himself until he ejaculated into a hankie.

  2. YY denied the allegation: Exhibit K Police Interview Question & Answer 137. He did however, recall taking AA and her mother to interviews: Question & Answer 131, but said they parked on the road: Question & Answer 134. He said he wore stubbies and stubbies don't have zippers: Question & Answer 137.

  3. Ms Davenport also questioned why would he take such a risk? Mr Crown countered; the risk was minimal given how high the cabin of the 4x4 Hilux was from the ground.

  4. Evidence was led at trial that YY wore shorts all the time and in all weathers. His shorts were the type issued by council - stubbies or rugger brand like those in Exhibit 1. His point was none of his shorts had zippers.

  5. There was evidence at trial that different brand shorts were worn by YY, but that his preferred brand "stubbies' do not have zips. A pair of 'ruggers' were tendered: Exhibit 1.

  6. While I can understand why this point was picked up. Given the lapse of time, it could not be critical either way whether AA was mistaken about the zipper or whether YY on occasions wore other dressier shorts that had a zip.

Count 9

  1. At TT 23-24 AA told me she would go to the golf course with her grandfather while he practised. On one occasion he has asked her to come behind the toilet block where there are bushes. He pulled down her pants. He then pulled his own pants down, put a condom on his penis and masturbated while looking at her. He threw the condom down and they went and continued to play golf. She could not relate this event to any other specific event that year.

  2. YY denied the incident: Exhibit K, Police Interview Question & Answer 137. He told police he was never at the golf course with one child alone. SB said she went with him and played only the 'back 9' where the toilets are: TT 294. Several times she went alone with him: TT 294 Line 2.

  3. The toilets are shown in more recent photographs: Exhibit 2. Their location was marked on Exhibit J. Mr D told me the land behind the block dropped away sharply and space was limited and at the relevant time the scrub and bushes were the same as those shown in Exhibit 2.

  4. The defence case put in evidence and in cross-examination (TT 113-118) is that there was then, and now, no space behind the block, because of the drop to the creek and weedy vegetation for this event to have occurred.

  5. I have examined the photographs. I accept there would have been vegetation there at the relevant time. I accept that the ground slopes away. I could not determine the extent of the vegetation in 2006- 2007 but even the modern photograph does not rule out the possibility that there may have been some space behind the block hidden from other patrons of the golf course.

Count 10

  1. Mr Crown opened and it was put to YY by police that immediately prior to what is described in the allegations that make up Counts 11 and 12 the accused put his hand down AA's pants and put his finger inside her vagina. She did not give this evidence.

Counts 11 and 12

  1. The last incident related, and last in sequence, is said to have occurred when AA took covered plates of food for her grandparent's dinner from her home to her grandparents: TT 28-31 and 33-34. Her Nan was not there. The accused, she said, told her to ring her Mum and say she would stay to feed the dogs. While she was on the phone he put his hands down her pants and stuck his finger into her vagina - it hurt - she said "ouch". He then pushed her into the lounge room, on to the lounge, pulled down her lower clothing, unbuttoned his shorts, pulled his shorts down, put his penis at the vagina hole and pushed achieving some partial penetration. She said "Pop stop". He stopped.

  2. CD recalled an incident when AA had taken food over and rang to say she was staying to watch a movie. During the call AA said "Ow Pop": TT 243.

  3. VB told me she made the meals, and she delivered them: TT 281 Line 26.

  4. YY denied these allegations: Exhibit K, Police Interview Question & Answer 148-150.

  5. Ms Davenport, in submissions, made the point that CD's version and AA's version did not sit together. In cross-examination she tested when, if at all, AA had delivered meals: TT 123-124

  6. She also questioned the simple mechanics of how an adult could have done the acts to a child, said to make up Count 12: TT 126-128

Count 13

  1. The Prosecution relied on the particulars of what was seen by AFB: TT 151-152. The accused was lying on AA on the main bed - moving up and down on her. AA was saying "get off Pop".

  2. AA did not supply these details. She recalls being chased into her sister's room - and one time "he was on top of me": TT 19.

  3. This allegation was not put to YY by police. In cross-examination of AFB, Ms Davenport put an alternative scenario, that AA had taken a pen and been chased by her Pop: TT 155-156. She did not concede this but she did say that in her statement she said he was laughing while she was saying "get off Pop": TT 157.

  4. Ms Davenport put the same alternative scenario to AA - that he was lying on top of her trying to get a pen and both were laughing. She rejected this suggestion: TT 107.

SUBMISSIONS

  1. Mr Crown concedes that whatever mention is made of an incident said to found Count 10 that Count could not be proved to the necessary high standard. He submits that otherwise, if the evidence called by the Prosecution is accepted, each element of each offence has been proved. Ms Davenport of Senior Counsel, who appears for YY, did not contend to the contrary.

Prosecution Submissions

  1. Mr Crown conceded that the dates given were broad but submitted they were sufficiently particularised by reference to a number of critical dates. The complainant's birthday on 21 November 1996; the death of her brother on 21 May 2004 and the death of the accused's wife on 8 December 2010: Exhibit E.

  2. He reviewed the evidence to highlight how AA had used key incidents to anchor each complaint, incidents that gave each allegation verisimilitude. Some were supported by others remembering important incidental matters such as: her mother remembering a cry while she was on the phone- Counts 11 and 12; AFB seeing the accused on top of the complainant in the bedroom - Count 13; the defence witness SB helping the accused use tools from the garage to fix his car- Count 1.

  3. Nothing AA described, he said, was impossible; to the contrary, each incident described was accompanied by sufficient detail to show it was real and not invented. He noted that memories of other events which time had dulled were openly volunteered in a manner that did not indicate invention or rote learning of a fabricated account.

  4. He drew my attention to the reasons given for delay in complaint in particular the accused's apparent assertion that, as has now eventuated, disclosure would “ruin the family".

  5. He said I could draw comfort from the evidence of NP which was reliable and credible. He said both she and AFB gave evidence that was independent of any conspiracy. Both corroborate the complaint's account of the accused's behaviour toward the complainant when the grandmother was absent.

  6. Similarly the evidence of CE who, although a friend, was able to accurately set out the accused's admissions by behaviour when he visited CD's home in 2014. He said the difference in minor detail in that account showed she too was independent of any conspiracy and what she saw and heard was damning.

  7. He said I would reject the accused denials in the listening device recorded conversation, suggesting by that time the accused was “wise to" the possibility it was being recorded. Highlighting a passage; "I'm gunna deny anything you say…:" Exhibit C, at page 15. And, NP's evidence that after touching her and her threatening to complain she said he said; "No one will believe you…:" TT 163 line 48.

  8. He noted things said by the accused in his police interview: Exhibit K. Some he said were contradicted by his own witness. He gave as an example, Question and Answer 48 - "Did you used to work on your car in the garage?" And the accused's answer: "No".

  9. Some other things he said could not be accepted, such as, the assertion he did not get down on his knee and put his hands together and ask for forgiveness, when he visited CD's home in April 2014: Exhibit K, Question and Answer 164-165.

  10. He suggested VB’s account was "overstated" and that while his friends and family saw one side, the good side; his granddaughters, the most deprived and vulnerable, saw another. He took me in some detail through the chronology of events which he submitted ruled out any reasonable possibility of invention. He highlighted what he said was AA's "credible account". This was in turn supported by her: agreement to wear a listening device; her sister's experience; AFB’s memories of what occurred in the home, and the accused's own admission and apology for improper conduct given in dramatic fashion when he visited CD's home.

Defence Submissions

  1. Ms Davenport, for YY, took me through the evidence that supported YY's version and which might raise doubts about the prosecution case. She used NP's history to illustrate how elaborate, persistent and damning lies could be told. She said it remained possible NP was now repeating what she was told to say and that so too was the complainant.

  2. She then took me to what might seem individually to be "small matters" but which when properly considered spoke of invention or in AFB's case, reconstruction - taking an innocent event and with hindsight giving it a criminal tone.

  3. She said the various versions of what occurred in CD's home in 2014 "did not sit together". So too the recollections of the reason for the phone call - Count 11.

  4. She said some offences alleged were "difficult to imagine". Examples being:

  • An adult rubbing his groin against a standing child - Counts 4 and 6.

  • The manner the complainant said the accused held the dog - Count 5.

  • Masturbation and use of a hankie in a car at a nursing home - Count 8.

  • The incident behind the golf course toilets - given its location and the supposed use of a condom - Count 9.

  1. She took me through what was happening at the accused's home when each event is said to have occurred; highlighting the improbability of the accused risking discovery when other family, including other grandchildren, were in close proximity.

  2. The evidence she submitted revealed, and certainly did not exclude the possibility, that following PD's death and the accused forming a relationship with PP "the family dynamic changed." While her mother was alive CD had depended on her mother for money to buy drugs. After her mother's death her father would not give her money, only food. The evidence she submitted did not exclude the possibility that in September 2013 CD asked him for $3,000, he refused, she threatened that a complaint would be made and she then carried out that threat by having her daughters speak to police.

  3. The accused, Ms Davenport submitted, was a man of good character - his other daughters and granddaughters supported him. He had responded to the allegations by appropriate denials that were not lies. His account supported what he is alleged to have done and said at the meeting. It does not sit with his denials recorded there or by the listening device: Exhibits C & K.

  4. She urged care and proper consideration of the delay and the unavailability of both PD and PP. She concluded by succinctly reviewing reasons why I would doubt the prosecution case or at the very least, given the conflict, not be able to resolve the conflicting accounts and therefore, as required, give YY the benefit of the doubt.

CONSIDERATION OF THE EVIDENCE

  1. AA was born on 21 November 1996. She was the accused's youngest grandchild. She lived in Berkeley with her Mother, Brother and Sister only a few minutes walk from her grandparents: see satellite image Exhibit G.

  2. Her grandfather, YY, worked for the local council. He finished work about 3.30pm each afternoon. He had two hobbies, golf and pig-hunting. He kept two hunting dogs, "Nudge" and "Skip" in cages in his yard.

  3. PD worked night shift at a bakery until made redundant in 2003 or 2004. She was then diagnosed with breast cancer. In 2007 she had a mastectomy- her health went up and down until her death in 2010. When she was ill her daughters VB and CD would bring meals to the parents. It was usual for the grandchildren to visit their grandparents - their garden had lots of play equipment. YY would take the children to the golf course, when he went to practice and 4x4 driving in his car.

  4. After PD’s death, YY formed a relationship with PP. She was in hospital at the time of YY's arrest in 2015 and died shortly after.

  5. CD's children were the least well-off in the family - her sons had been in goal. One died in a car accident in 2004. At times CD also had the care of her grandchildren. Until September 2013, YY and PP would bring food to CD.

  6. In April 2014 there was a meeting at CD's home. The complainant and CD were in one room with the accused and PP. CE and NP were also in the house.

  7. Later in April 2014 AA complained to police that YY had touched her or behaved indecently toward her from 2004 when she was 8 years old until 2008 when she was 10. The last allegation involved partial penile vaginal penetration.

  8. In 2015 police were given a warrant to record a conversation between YY and AA. That conversation took place on 3 March 2015: Exhibit C.

  9. On the 23 March 2015 the accused was arrested and interviewed by police: Exhibit K.

  10. So much is not in serious dispute.

History of Complaint- prosecution case

  1. In September 2013 AA asked her mother, CD, whether her deceased Nan "… knows everything?" She then told her mother "…that pop touched me before." TT page 38. She then told her "that NP allowed him too". Without getting details CD then rang NP who confirmed she too had been touched.

  2. Soon after AA told a similar story to her friend, NS. An attempt was made to speak to police but I was told the police did not follow it up. Soon after YY, following his usual practice, came to CD's to drop off a box of groceries. CD confronted him.

She said: "I know your dirty, fucking little secret."

He took a little step back, he said, "What?"

She said, "I know your dirty, fucking little secret and I'm telling the police."

He said, "I'll kill myself."

She said, "Well you're going to have to do whatever you're going to have to do then aren't you?" TT 210 - 212.

  1. Later that day YY rang CD said, "I'm sorry I did it": TT 214.

  2. Contact ceased.

  3. In mid-2014 AA saw her Pop driving a new car. NP was driving the car when the girls saw their Pop in his new car. She did not give evidence her sister first rang for PP's number but otherwise she corroborates her sister's account.

  4. AA said she rang her mother and got PP's number and rang and spoke to her. She also spoke to her Pop. She said, "I've told PP I've dobbed on you. You can't hide your little secret anymore because I'm going through the worst." TT 45.

  5. A meeting was arranged at CD's home. At the meeting PP spoke to AA and CD. CE was in an adjoining room; NP was in a bedroom up the hall. PP then went and got the accused. He came in, dropped to one knee and clasping his hands on his knee, apologised to AA; saying: "I'm sorry, AA," and "I don't know how I could do this." TT 48 line 26

  6. Accounts of the conversation vary but are relatively consistent, most recall: AA being upset; the accused on one knee with clasped hand or hands in prayer; the apology, and CD's abuse of her father; him mentioning his fear of goal and his saying that he was not getting sex from his wife. CD recalls he said, "I'm petrified of the police, I've always been petrified of gaol." TT 213.

  7. Soon after CD and AA went to the Police, statements were made. AA wore the listening device which resulted in Exhibit C, and the accused was arrested and interviewed.

Complaint - Accused's version

  1. It was put to CD that the street confrontation had a very different tenor and that she, having asked for $3000 and been refused, and threatened to fabricate a child abuse allegation. TT 237-238.

  2. In his police interview YY gave his account. He said he did give her $300 and she said, "How about if I tell your friends that you're touching my daughter." Exhibit K - Question & Answer 231.

  3. He does not deny heated things were said in April 2014 but in cross-examination of prosecution witnesses quite a different perspective was put about the April 2014 meeting: for example TT 133-136 & 248 -249.

  4. I do not speculate what PP may have said, but I do caution myself; delay has meant the accused is unable to call on her to support his version of events. I cannot draw anything from the fact she stayed with him. She may have disbelieved the allegations she may not. She was dying. She needed support. YY provided that support.

  5. In the listening device conversation, YY said he did say he was sorry during the April 2014 meeting, but not as any acknowledgement of guilt "... you were screaming and carrying on and I, I just felt sorry for you: Exhibit C page 6.

Complaint -Resolution of issues

  1. There is no evidence that CD ever sought a large sum of money from her father in September 2013 and no credible evidence she ever attempted to extort money from him by threatening a false child abuse complaint. The course of events after the street conversation does not support this; AA's conversation with NS does not support this; and YY’s attendance at the CD’s house in April 2014 does not support this.

  2. Despite testing, cross examination, the prosecution witnesses gave consistent accounts. Any inconsistencies could be readily explained by the emotional nature of the conversation and the passage of time. I have examined what each witness said. While there are similarities in their accounts, these similarities do not indicate concoction. Rather, they appear to be genuine attempts to recall and express what occurred.

  3. In particular there is nothing to indicate CE has lied or that her account is a product of confabulation. She did not see NP in the room with her. But if NP came in later she may not have noticed given what was happening in the adjoining room.

  4. A strong attack was made on NP. She has previously lied when under a duty to tell the truth. Anything she said must, as a consequence, be scrutinised with great care. She freely acknowledged her past. She had no choice. She knew the defence knew of it. Her accounts of what her grandfather did to her raise, because of its similarities, the question; was her account concocted to support her sister?

  1. There was however no obvious sign she had exaggerated or added details to emphasise these similarities. She gave a frank and relatively unadorned account that picked up on details which enabled the incident to be fixed in memory.

  2. The consistent history of complaint provides some support for the complainant's version. Her explanation for not coming forward as a child and her doing so at the time she did similarly does not diminish the probative value of her evidence.

Admissions -Prosecution case.

  1. CD says admissions were made in September 2013 in the street and over the phone - given their heated nature and the delay - they have limited probative value on their own.

  2. What the accused did at the April 2014 meeting could be construed as a general admission against interest; that is of sexual crimes against AA. If accepted, what he did and said acknowledges he had seriously wronged her in a sexual and criminal way. What he said was not recorded. This apparent acceptance of responsibility in April 2014 must be contrasted with the denials in the listening devise conversation in March 2015 and police interview; each of these was recorded.

  3. Care must be taken on a number of levels. I must ask what was done and said and why? I must, should I accept the prosecution version, ask myself what exactly was being admitted to. A general acceptance of bad behaviour could not provide proof of any specific allegation. Again, I remind myself delay has hampered the accused and deprived him of any opportunity of rebutting what is alleged except by denial.

Admission -Defence case

  1. The accused, through his counsel, put himself forward as concerned and compassionate; kneeling down to engage with a granddaughter who was upset and in need of care and support. He was sorry for the predicament his granddaughter was in, not for anything he had done to her: TT 133-136 & 248 -249

Resolution- Admissions

  1. I accept beyond reasonable doubt that the accused admitted to some sexual or indecent activity with AA during the April 2014 meeting. The prosecution witnesses' overall account is both consistent and believable. The accused's account put in cross-examination makes no sense. He was aware even on his own version of events of the first threat to make an allegation against him made by CD in September 2013, he was then, in April 2014, aware AA was making an allegation against him - the telephone conversations with PP and himself, which had led to the meeting.

  2. His asserted behaviour in April 2014 must be contrasted with his later attitude toward AA in March 2015. He says he responded out of concern for AA and that his actions were misconstrued. In the conversation recorded on the Listening Device he shows no such sympathy, concern or compassion for her. It is a harsh and complete rejection of his granddaughter.

  3. His version of the April meeting is also inconsistent with his assertion that an extortion threat was made by CD some months earlier.

Tendency - resolution

  1. AFB witnessed the accused having AA on a bed doing what she later knew to be "dry humping". She also saw the accused playing pornographic videos when AA was in the room with him.

  2. NP says her grandfather sexually assaulted her while she was alone with him and then of the same age as her sister.

  3. For reasons given in relation to other aspects of both witnesses' testimony, I accept this evidence.

  4. While the tendency notice is, with respect, too specific in its particulars, the accused's state of mind asserted has been proved to the necessary high standard. Accordingly, that at the time he had this state of mind helps to make explicable two things. Firstly, whether he did what is alleged and secondly, why he took the risk of exposure when he did so. The probative value of this evidence here lies in its capacity to support the credibility, and in AFB's case, also the veracity of the complainant's account.

  5. My acceptance of the prosecution on these points means little weight can be given to protestations or evidence of good character. It allows me to consider the evidence of AA and to some degree her sister NP, without the cloud of suspicion that what is alleged in a Count may be a total fabrication. It does not absolve me of responsibility for careful consideration of the evidence in respect of each Count.

  6. Does the failure to mention the events in Count 10 impact?

  7. Memory lapses do occur in the witness box. Lapses occur if scripts are memorised. Memory lapse occur when recounting real events. If AA was, as suggested, sticking to a prearranged script, more probably Count 10 would have been mentioned. If she was engaged in a genuine process of recollection the striking features of Count 11 - the phone call and the pain and Count 12 - the attempted penetration, would have assumed more importance than a vaginal touch immediately before. Her evidence in particular at TT 26 Lines 10 & 28, 33 & 34 leads me to the conclusion that she was speaking about digital penetration in general but focused only on the incident that caused her pain and occurred while she was on the phone - Count 11. There is nothing in that lapse that impacts on the probative value of her testimony in general.

  8. Her process of recollection was demonstrated when other events were recalled in part- the photograph in the car incident; something occurring under the house. That she could not in 2014 (time of complaint) or 2016 (time of trial) precisely recall detail does not diminish the probative value of her description of events she can now more accurately recall. If she was sticking to a script these would not have been added as defence counsel suggested as - "a little gloss to your story." TT p 136 line 35.

CONCLUSION

RESOLUTION OF ISSUES

  1. There was no evidence at all that the events described in Count 10 occurred. YY must be found not guilty of that Count.

  2. Allegations such as those made by AA are rarely capable of corroboration. Corroboration is not required but what is required is that each allegation made by her be carefully considered and be considered along with all the other evidence. Only if each element of an offence can be proved beyond reasonable doubt can a guilty verdict be returned. Where the allegations are denied any denial and its circumstances must be assessed along with all the other evidence. If the denials or any other evidence leave doubts the accused must have the benefit of any reasonable doubt.

  3. These allegations came after long delay. The accused was not given an opportunity to respond to them when the events would have been fresh in his mind. Two critical witnesses are now dead. Each witness' account, including that of the complainant, must have been influenced to some degree by the passage of time and later experiences. This process of recollection can impact on the reliability of a memory. This is particularly so with child witnesses. This is not because there is anything intrinsically unreliable about child witnesses. A child generally cannot have had the necessary experience at the time to fully describe events. Any later description particularly after years have passed must be influenced by later experiences.

  4. The allegations are extremely serious; so too the consequences of conviction but my obligations as a judge of the facts are clear. As I judge and lawyer I have heard acknowledgements of guilt in relation to, often strange, at times bizarre, crimes. I am no longer surprised by what adults can do to children. The incredible on close examination turns out to be neither fanciful nor preposterous. I am also aware that false complaints can and have been made and that innocent events can be given a sinister complexion. Memory is not fixed. It can be dimmed. It can be enhanced or altered by later supposition or confabulation. Past events can be misconstrued.

  5. In 2004-2007 YY was nearing the end of a long working life. He had children and grandchildren. Many lived nearby and would visit. His yard had play equipment and cages for his dogs and sheds. He would take the grandchildren to golf and 4 x 4 driving. He took SB and male grandchildren hunting and camping. He is respected by friends and family and considered to be of good character. Two granddaughters spoke of it to me. He enjoyed his golf and hunting with his dogs. His wife worked night shift. After she took redundancy she became ill. She died in 2010.

  6. Following his wife's death he formed a relationship with PP. She died in 2015.

  7. AA was YY's youngest grandchild. Her brothers were often in trouble. Her mother CD relied on her parents, particularly her mother. Loans would be given, some of these she used to buy cannabis. Of all the grandchildren her family had the least.

  8. The allegations are varied but have a general theme. There was prior touching of her sister NP; acts which did not lead to complaint. There was touching of AA in ways that could easily be explained away. There was some testing of her by the apparently accidental showing of pornographic videos; more blatant touching and rubbing followed. This behaviour in the home and public areas involved some risk of discovery but also occurred in circumstances where discovery could be avoided.

  9. If the prosecution could not remove the risk of joint concoction - that risk of joint concoction would deprive the evidence in their case of probative value. While a number of reasons for a false allegation were advanced none have any substantive support in the evidence. No threat to extort, if made, was carried through. None makes any sense. False accusations are made; stories can be invented but here the series of events described do not seem contrived. While not beyond all imagination they do not appear to be invented; details given do fit with known and acknowledged facts. Some allegations seem incredible or odd, such as the acts with the dog but they are not unfortunately outside my legal experience. Small details are missing or out of the ordinary; such as the allegation of condom use - vehemently denied and the reference to zippered shorts, when if worn at all, the evidence suggests this was rare. Sometime incidental details are critical to an evaluation of evidence's probative value at other times they may be ordinary lapses of memory. Here overall each allegation that founds a Count was clear and unambiguous. It was maintained under testing. The occasional questionable detail does not diminish its probative value.

  10. The evidence in support of each remaining Count was both plausible and fitted in with other known facts: The evidence of AFB and some things said by SB in particular. While every Count except 11 and 12 occurred at different times and was the subject of different evidence the allegations cannot and should not be distinguished, they are all proved or they are all not.

  11. AFB and NP's evidence was relevant. The probative value of this evidence lies in its capacity to support the credibility of a complainant's account. Here it had substantial probative value. It allows for finding beyond reasonable doubt that YY at the relevant time had a state of mind that he could touch his two granddaughters in a sexual way. That he did not do so with other granddaughters does not diminish the probative value of this evidence. That he did not exercise every opportunity to take advantage of NP or AA does not diminish the probative value of this evidence. NP and AA appear, given the family dynamics, to be the most vulnerable and least likely to complain and if they complained, to be believed.

  12. This is not a case where bare unsupported allegations are made years after the event. The accused's behaviour at the meeting at CD's house bears no reasonable explanation other than his acceptance that had committed sexual offences against her.

  13. There were reasons for the delay. The history of how AA came to complain and how the complaint was drawn first to her mother's and then the accused's attention is inconsistent with concoction. The prosecution has met its onus.

  14. The accused's recorded denials, Exhibits C and K, were clear and emphatic. Some denials raised small matters, which were contradicted by other accounts. They could be explained by delay or dissembling. Overall however, the denials when evaluated alongside all the evidence at trial were not convincing.

  15. Does his undoubted good character raise a doubt? Does the possibility of concoction raise a doubt? Given all the proved facts, applying the cautions noted and, above all, recognising the accused's presumption of innocence, the answer to both questions must be, "No".

  16. The evidence of AA of each complaint and evidence in support of her evidence has withstood close testing and scrutiny. What she says has support, some of which can be drawn from the accused's own conduct. I must find each offence, other than Count 10, proved beyond reasonable doubt.

VERDICT

  1. Count 1 that you assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her - guilty.

  2. Count 2 that you assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her - guilty.

  3. Count 3 that you assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her - guilty.

  4. Count 4 that you assaulted AA then a child aged 8 or 9, and at the same time committed an act of indecency on her - guilty.

  5. Count 5 that you committed an act of indecency on AA then a child aged 8 - 9 - guilty.

  6. Count 6 that you assaulted AA then a child aged 9, and at the same time committed an act of indecency on her - guilty.

  7. Count 7 that you committed an act of indecency on AA then a child aged 9 - guilty.

  8. Count 8 that you assaulted AA then a child aged 10, and immediately after committed an act of indecency in her presence - guilty

  9. Count 9 that you assaulted AA then a child aged 10 - 11 and, at the same time omitted an act of indecency on her- guilty

  10. Count 10 that you had sexual intercourse with AA then a child aged 10 - 11 while she was under your authority - not guilty.

  11. Count 11 that you had sexual intercourse with AA then a child aged 10 - 11 while she was under your authority - guilty.

  12. Count 12 that you had sexual intercourse with AA then a child aged 10 - 11 while she was under your authority - guilty.

  13. Count 13 that you assaulted AA then a child aged between 7 and 10 and at the same time omitted an act of indecency on her - guilty.

  14. The accused is convicted of each count.

  15. The Court directs that the proceedings stand over for submissions on sentence on 1 December 2016.

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Decision last updated: 19 January 2017

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Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
Longman v The Queen [1989] HCA 60
IMM v The Queen [2016] HCA 14