Re RW - [2018] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RW [2018] WADC 116
CORAM:   VERNON DCJ
HEARD:   7 FEBRUARY 2018
DELIVERED          :   21 SEPTEMBER 2018
FILE NO/S:   APP 60 of 2017
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: RW
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H L PORTER
File Number             :   CI 782 of 2016

Catchwords:

Criminal injuries compensation - Appeal from assessor's decision to extend time to make application - Alleged sexual abuse by father - Father not charged - Adequacy of evidence - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 1985 (WA)
Criminal Injuries Compensation Act 2003 (WA), s 3, s 9(1), s 17(2), s 17(4), s 50(1), s 55(1), s 55(4), s 56(1), s 56(2)
District Court Rules 2005 (WA), s 51(4)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr D M Harrop on behalf of the Chief Executive Officer of the Department of Attorney General

Solicitors:

Appellant	:	Not applicable
Amicus Curiae	:	State Solicitor's Office

Case(s) referred to in decision(s):

Annetts v McCann (1990) 170 CLR 596
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Clayton v Aust (1993) 9 WAR 364
Dos Santos v Dos Santos [2000] WADC 256
Gleeson v Lee (1996) 18 SR (WA) 353
Gullelo v Halloran [2008] WADC 145
R v Eishauer (1997) 96 A Crim R 489
Re ATS [2017] WADC 92
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re RT (2006) 47 SR (WA) 197

VERNON DCJ:

Introduction

On 5 March 2016 the appellant lodged an application for criminal injuries compensation, for injuries allegedly suffered as a result of her father sexually abusing her between 1975 and 2001. The appellant also sought an extension of time to lodge the application.
The father has not been charged with any of the alleged offences.
On 12 October 2016, the Chief Assessor of Criminal Injuries Compensation advised the appellant in writing that the assessor was inclined to refuse the application, as she was not satisfied that the alleged offences had been committed.
By email dated 4 April 2017 the appellant wrote to the assessor making additional allegations against the father.
By letter dated 11 April 2017 the assessor formally refused the application for an extension of time within which to make the application. The assessor said that she had considered the additional allegations and the assessor said that she remained of the opinion that she was not satisfied that the alleged conduct had occurred. The assessor, therefore, decided that there was no utility in granting an extension of time.
By notice dated 21 July 2017 the appellant appeals the decision of the assessor. The appellant also seeks an extension of time to lodge the appeal.

The parties to the appeal

The father was initially named as the respondent to the appeal, but was not served with the appeal notice, as required by r 51(4) of the District Court Rules 2005. The appellant sought an order that she not be required to serve the father, for reasons which were identified in the application.
On 7 November 2017, orders were made that service on the father be waived and that the notice of appeal be amended to delete reference to him as respondent to the appeal. This order was made on the basis that, because there is no right of recovery against the father under the Act, the father did not have an interest in the outcome of the appeal.[1]
[1] Only a person who is convicted of an offence can become liable to pay an amount to the state under a compensation reimbursement order made pursuant to s 50(1) of the Act.
Given the very serious nature of the allegations against the father, it might be argued that the father has an interest in the outcome of the appeal despite not having a financial interest in that outcome, namely an interest in protecting his reputation: Annetts v McCann (1990) 170 CLR 596. However, given the appellant's identity has been suppressed and these reasons have been drafted with a view to ensuring the appellant and the father are not identified, the orders made were appropriate.

Compensation applications

An application for criminal injuries compensation must be made within three years after the last of the offences to which it relates has been committed, unless an assessor[2] thinks it is just to allow an application to be made after that time: s 9(1) of the Criminal Injuries Compensation Act 2003 (the Act).
[2] Or the court on appeal: s 56(2) of the Act.
Where no person has been charged with an offence the assessor must not make an award unless satisfied that the claimed injury and the claimed loss have occurred, and that they occurred as a consequence of the alleged offence: s 17(4) of the Act.
'Injury' is defined as meaning bodily harm, mental or nervous shock, or pregnancy and 'alleged offence' is defined as meaning a crime, misdemeanour or simple offence of which no person has been convicted: s 3 of the Act.
An applicant may appeal against an assessor's decision to refuse to make a compensation award within 21 days of the date of the decision, or a further time if it is just to do so: s 55(1) and s 55(4) of the Act.
The court must determine the appeal afresh on the evidence and information that was in the assessor's possession, and any fresh evidence or information the court decides to receive: s 56(1) of the Act.
It is appropriate to have regard to the assessor's reasons. However, the appellant does not need to demonstrate error on the assessor's part in order to succeed: Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
In determining the appeal, the court has the power to extend the time to make an application for compensation, confirm, vary or reverse the assessor's decision in whole or in part, and make any other order the assessor could make under the Act: s 56(2) of the Act.
In order to succeed in the appeal the appellant must satisfy the court, on the balance of probabilities, in other words that it is more probable than not, that the alleged offences, or any of them, occurred: Dos Santos v Dos Santos [2000] WADC 256 [13] (Jackson DCJ). Given the serious nature of the allegations, the evidence in support of the alleged offences having occurred must be scrutinised with care: Re ATS [2017] WADC 92 [114] (Herron DCJ).
The appellant also bears the onus of satisfying the court, on the balance of probabilities, that it is just to extend the time to lodge the application: Re McHenry [2014] WADC 92 [15] (Herron J).
The limitation period for filing an application for compensation is a substantive provision of the Act and not merely a procedural time limit imposed by rules of court. The applicant must make a substantial case for it being just and proper to extend the time: Clayton v Aust (1993) 9 WAR 364, 366 (Malcolm CJ, Rowland & Franklyn JJ agreeing).
The factors the court may take into account in determining whether it is just to extend the time to make an application include:
(a)the reason for, and length of, the delay in bringing the application: Re Jackamarra [2014] WADC 9 [23] (Schoombee DCJ) and Re McHenry [20], [25]; and
(b)the strength of the claim, although generally this will be only be material to the exercise of discretion in hopeless or vexatious claims: Re RT (2006) 47 SR (WA) 197 [33] (Goetze DCJ).
The fact that the refusal to exercise the discretion to grant an extension of time will prevent the appellant from pursuing her claim altogether is not, by itself, enough to warrant an extension of time: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549 (Toohey & Gummow JJ).
In determining whether to allow the appellant an extension of time to lodge the appeal the court will generally have regard to the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the extent of any prejudice to the respondent: Gleeson v Lee (1996) 18 SR (WA) 353, 354 - 355 (Hammond CJ).

Extension of time to appeal

As the assessor's decision was made on 11 April 2017, the appeal should have been filed on or before 2 May 2017.
The appellant relies on her affidavit dated 27 October 2017 in support of her application for leave to appeal out of time. The appellant says, in effect, that she had attempted to lodge the notice of appeal by post, registered post and fax, from a rural post office, and was unaware for some time after each failed attempt that that attempt had failed.
It was not clear from the appellant's affidavit when the first attempt was made. However, counsel for the amicus curiae informed me at the hearing on 7 February 2018 that the State Solicitor's Office file records receiving a faxed copy of an appeal notice on 1 May 2017, within the time limit.
In the circumstances I will allow the appellant an extension of time to file the appeal notice to 21 July 2017, being the date it was accepted for filing.

Extension of time to bring the application

The appellant claims that the last occasion on which the father sexually abused her was in about August 2000. Accordingly, the appellant should have filed an application before the end of August 2003.
The appellant first reported the matter to police in May 2002. She gave the police signed statements on 31 July 2002 and 16 December 2002.
The appellant sought an extension of time to make the application on the basis that the case was being investigated by police. She said that she had been informed that she could not make a claim for criminal injury compensation until that investigation was complete.
Counsel for the amicus curiae confirmed that the police investigation was not concluded until July 2015. As is apparent from the contents of the Office of the Director of Public Prosecutions' (the DPP) file, that the investigation was lengthy, with a large number of people being interviewed over time.
Whilst the applicant could have made a claim before the conclusion of the investigation, contrary to the advice she says she received, it seems likely that the determination of the claim would still have been delayed pending the outcome of the investigation. In particular, the provision under which a claim is made and determined differs according to whether the offence is a proved offence, an alleged offence where there has been an acquittal of the person charged, and where no person has been charged.
In my view, the issue of whether the extension of time to grant properly turns on the determination of the merits of the substantive application, which are considered below.

Merits of the application

Evidence of conduct constituting the alleged offences

The majority of the evidence before me is contained in the DPP file, which contains the prosecution brief from the police.
There are 25 signed and draft statements on the DPP file. The police appear to have attempted to interview every potential witness the appellant identified, and did interview those they were able to contact.
In order to avoid potential identification of either the appellant or the father, I have identified the people interviewed by their relationship with the appellant, rather than by name.
I have considered the following:
(a)The contents of the DPP file including:
(i)the appellant's statements to police dated 31 July and 16 December 2002, and email correspondence with police, detailing allegations against the father;
(ii)the police incident report running sheet;
(iii)a transcript summary prepared by police of the appellant's diary entries during the period the offences are alleged to have occurred;
(iv)statements from potential witnesses as follows:
1.the appellant's sister dated 29 January 2003;
2.the appellant's brother dated 29 October 2002;
3.the appellant's mother dated 10 June 2002;
4.the appellant's former boyfriend, dated 19 December 2002;
5.one of the appellant's step-brothers, who is a son of the father's second wife (step-brother A), which statement is unsigned, but obtained on 27 June 2002;
6.another of the appellant's step-brothers, who is a son of the father's second wife (step-brother B), dated 13 March 2013;
7.step-brother A's former wife (sister‑in‑law), dated 11 August 2011;
8.the appellant's aunt, who is the father's sister, dated 24 August 2012;
9.one of the appellant's cousins, who is the aunt's daughter (cousin A), dated 17 September 2012;
10one of the appellant's cousins, who is the aunt's son (cousin B), dated 8 February 2013;
11.one of the appellant's cousins, who is the mother's nephew (cousin C), which statement is unsigned;
12.one of the father's cousins (relative A), dated 11 March 2013;
13.relative A's wife (relative B), dated 11 March 2013;
14.the daughter of relative A and relative B (relative C), dated 15 March 2013;
15.a neighbour, who lived next door to the appellant's family until she was about 11 years old (neighbour A), dated 16 January 2012;
16.neighbour A's brother, who lived next door to the appellant's family until he was about 10 years old (neighbour B), dated 7 October 2013;
17.an adult neighbour of the appellant's family (neighbour C), dated 16 January 2012;
18.a neighbour who spent time working with the father in his shed when the neighbour was 10 to 14 years old (neighbour D), dated 22 September 2011;
19.a friend of the appellant when she and the appellant were about 8 years of age through high school (friend A), dated 8 December 2011;
20.a friend of the appellant when she and the appellant were 14 and older (friend B), dated 17 February 2003;
21.a friend of the appellant when she was aged about 9 to 12 and the appellant was a year younger (friend C), dated 17 September 2012;
22.a friend who worked with the appellant at a fast food outlet for about five months when they were 14 (friend D), dated 27 March 2013;
23.a work colleague of the appellant's father, dated 2 October 2013;
24.a friend of the appellant's brother (GR), which statement is unsigned; and
25.a psychologist who had seen the appellant in 2001 and 2002, dated 20 July 2009.
(iv)a record of interview with the father on 4 April 2012 and a letter authored by the father in March 2011;
(b)correspondence between the assessor and the appellant including:
(i)the assessor's letter dated 12 October 2016;
(ii)the appellant's email dated 4 April 2017; and
(iii)the assessor's letter dated 11 April 2017.
(c)the appellant's affidavits filed in these proceedings dated 27 October 2017 and 4 January 2018; and
(d)reports of two psychologists:
(i)EC, consulted by the appellant in 2011 to 2015, whose report is dated 10 February 2015; and
(ii)LH, consulted by the appellant in 2015 to 2016, whose report is dated 18 February 2016.
I have also considered oral submissions made at the hearing on 7 February 2018, by the appellant and counsel for the amicus curiae, and the written submissions filed on behalf of the amicus curiae, dated 2 February 2018.
At the hearing, counsel for the amicus curiae provided me with an aide memoire, summarising the information in the various statements. This document had been provided to the appellant before the hearing and she made oral submissions in relation to the evidence referred to in aide memoire at the hearing.

Assessor's reasons

The assessor's reasons are set out in her letters dated 12 October 2016 and 11 April 2017.
In the letter of 12 October 2016, the assessor said that she had reached a provisional determination that she must refuse the application because she was unable to be satisfied to the required standard that the alleged offences occurred as the appellant alleged. As the determination was provisional, the assessor gave the appellant the opportunity to make further submissions.
The assessor said in that letter:
You are of course aware that there are significant difficulties with evidence which appear to be memories 'recovered' after having reportedly been repressed from the time of the happening of the incident. Whilst it may be accepted that such memories may be reliable, the difficulties which have been raised mean that it is necessary to look to the surrounding circumstances to try to find sufficient corroboration of the allegations. A particularly high standard of satisfaction is needed for allegations of such a serious nature. The law requires that I take into account the seriousness of the allegations when considering whether I am satisfied that the events occurred.
I accept that you assert that some of the memories you have were always available to you, however, the presence of so called recovered memories included amongst the allegations creates significant difficulties. In addition material collected by the police presents a further difficulty, in that the corroboration one would expect would be available has not been forthcoming. Further, the material indicates that your relationship with your father continued in an apparently normal way until well into your adulthood, as evidenced by the contents of your diaries, emails and other communications with him prior to the point where you and your sister began to question each other about your memories of your childhood. At this time you left Australia and it is alleged that you misappropriated funds and sold shares belonging to your father before you left. Further it appears that you have collaborated with your sister in the process of recovering some of your memories of your childhood. All these circumstances create significant difficulties in the assessment of the reliability of your complaints.
The appellant responded to that letter by email dated 4 April 2017, in which she identified additional incidents which she said she had always remembered.
In her letter of 11 April 2017, the assessor said that the same difficulties that she had outlined in her first letter existed in relation to the additional material and she remained of the opinion set out in her letter of 12 October 2016.

Issues on appeal

The appellant represented herself at the appeal, appearing by telephone at her request. The sole ground of the appeal was stated to be that the decision was based on incorrect information.
The appellant filed an affidavit sworn 4 January 2018 in support of the appeal. In that affidavit the appellant elaborated on the grounds of appeal saying:
I am appealing on the basis that the information cited [by the assessor] to sufficiently challenge my allegations (therefore creating doubt that the allegations do meet the standards for evidence under section 17) is incorrect on a number of points.[3]
[3] Appellant's affidavit sworn 4 January 2018 at par 2.
In oral submissions, the appellant confirmed that she relied on the allegations of sexual abuse by the father, in support of the application for compensation.
It is, accordingly, clear that the basis of the appeal is that the assessor ought to have been satisfied on the evidence that the alleged incidents of sexual abuse of the appellant by the father had occurred.
As I have said, however, it is not necessary for the appellant to show that the assessor erred in some way. I must decide the application afresh.
There is no doubt that, if I were to find that the appellant has proved to my satisfaction, on the balance of probabilities, that the alleged incidents of sexual abuse had occurred, the father has committed offences against the appellant within the meaning of the Act.
In her written submissions the appellant asked that her case be referred to an expert in dissociative amnesia.
After the hearing I advised the appellant that, in my view, it was neither possible nor appropriate for the court to take that course. The appellant was, however, invited to provide additional information if she wished to do so. By emails dated 15, 26 and 28 August 2018 the appellant advised that she relied on the reports of the psychologists, EC and LH, referred to in [36(d)] above. She also provided me with the following additional information:
(a)Extracts from a report commissioned by the Royal Commission Into Institutional Responses to Child Sexual Abuse entitled 'Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainant's Evidence' by Jane Goodman‑Delahunty, Mark A Nolan and Evianne Van Gijn‑Grovenor dated July 2017.
(b)An online reference to the report of the Royal Commission itself.
(c)References to 'Disassociate Amnesia' in DSM‑5[4] and in 1CD‑10.[5]
(e)An article entitled 'Dissociative Amnesia' by Angelica Staniloiu and Hans J Markowitch.[6]
[4] Being the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
[5] The World Health Organisations' International Statistical Classification of Diseases and Related Health Problems.
[6] Published in Lancet Psychiatry on 2 July 2014.

Approach to the evidence

The proof of the allegations rely largely on the appellant's own evidence. There are some specific allegations where the appellant and the sister say that they were both present. The brother claims to have been present during one incident which neither sister recalls.
As has been noted the appellant distinguishes between those events that she says she remembered for the first time in or after July 2001, having suppressed those memories, and those events she says that she has always remembered. She does, however, rely on her memory of all events in support of her application.
In my view, the appellant's evidence of all the events she alleges must be assessed in the same way. After considering the evidence as a whole, I must be satisfied that it is more likely than not that the events complained of occurred, scrutinizing the evidence with special care in light of the seriousness of the allegations that have been made and the substantial delay in reporting the events complained of.
This involves an assessment of all the allegations the appellant has made, the circumstances in which they were made, the consistency of the allegations, and any evidence that supports a finding that the alleged events occurred.
The allegations of events that do not go directly to the allegations of sexual abuse are relevant to the extent that they either support or undermine the credibility of the appellant's evidence: that is not just whether the appellant has been truthful about what she says she recalls but whether her evidence is also reliable and accurate.

Dissociative amnesia

The appellant relies on this condition as explaining the fact that she had no memory of the serious allegations of sexual abuse until she was 29 years old.
The appellant refers to dissociative amnesia as being the same as recovered memories. Dissociative amnesia is defined in ICD-10 as having 'the main feature of loss of memory, usually of important recent events, that is not due to organic mental disorder, and is too great to be explained by ordinary forgetfulness or fatigue. The amnesia is usually centred on traumatic events, such as accidents or unexpected bereavements, and is usually partial or selective'.[7] Accordingly, it is the state that exists before memory is recovered.
[7] ICD-10 version: 2016 at F44.0.
The report referred to in [51(a)] above said 'it is possible, temporarily, to entirely forget an experience of child sexual abuse or aspects of the abuse. Dissociation and complete forgetting were significant among a sample of victims whose age at the onset of the abuse was in early childhood. The abuse may have been so severe that stress interfered with the encoding and recall of these experiences.[8]
[8] Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants Experience, page 89.
The article, 'Dissociative Amnesia', referred to in [51(e)] above, says that term refers to a group of disorders and says:
In some cases diagnosed as dissociative amnesia, patients are believed to have amnesia for an entire traumatic event such as childhood sexual abuse, while nonetheless maintaining normal autobiographical memory for other aspects of their lives. It is often claimed that such individuals can later recover the formerly inaccessible memory of the traumatic event. This latter postulated form of dissociative amnesia remains highly controversial, which some authorities suggesting that it is common, and others suggesting it is devoid of empirical support.[9]
[9] Vol 1 August 2014, page 228.
That paper goes on to say:
No systematic studies have been done on the propensity for false memories … in patients with dissociative amnesia. The hypothesis that dissociation renders individuals prone to fantasy, and subsequently leads to false memories of trauma after the recovery from amnesia has no robust empirical support.[10]
[10] Vol 1 August 2014, page 228.
In R v Eishauer (1997) 96 A Crim R 489 the New South Wales Court of Criminal Appeal considered a criminal case based on evidence of recovered memory, where the trial judge had formed an assessment the witness was honest. The question was then whether her evidence was reliable. Sperling JJ said:
Ostensible memories may be characterised as true memories, false memories and fabricated memories. By true memories I mean memories that are correct. They would include memories which have been lost and which have later been recovered. By false memories I mean memories which the subject believes to be correct but which are incorrect. By fabricated memories I mean purported memories which are not memories at all. They are knowingly false. Fabricated memories in this sense is not an option in this case because finding which should not be disturbed are against it. As to false memory, it is common experience people remember things in ways that suit them. False memories are common knowledge … The corollary is that the mere fact that someone honestly experiences the memory of an event is no guarantee the event occurred that way or even that it occurred at all …
The contrast for the present case is with true memories, which (as I have said) would include memory lost for a time and then recovered. That is common knowledge. People may have forgotten altogether about something until the memory is triggered by a thought or experience or by something someone says …
Common experience does not enable one to say that a memory of a painful event, absent for a long time and later experienced, is more likely to be a revived true memory than an honestly experienced, false memory. I do not accept as common knowledge that, in the case of children, memory of abuse is frequently lost and later reliably recovered. The content of the ostensible memories in this case is beyond common experience. There is no common knowledge on which to draw for guidance. To generate false memories of this kind is not commonplace. To lose memories of this kind for ten years or so and then to recover them is not commonplace. The case is remote from common experience …
It is reasonably possible that MH's memories were true, recovered memories. But it is also reasonably possible that they were honestly experienced, false memories.
With respect to the Royal Commission Report, referred to at [51(b)] above, the appellant submitted 'a significant number of complainants stated they had recovered their previously unavailable memories and there is good evidence to substantiate these claims and some abusers even admitted their crimes. The Commissioner has catered for, and accepted, recovered memory'.
However, those stories which refer to recovered memories that I have identified on the website of the Royal Commission carry the express disclaimer that they do not constitute a finding of the Royal Commission.
For the purpose of these reasons, I conclude that:
(a)It is possible for a person who suffers sexual abuse as a child to completely suppress the memory of that abuse and, essentially, not remember that abuse until years later.
(b)As with any other person recounting a memory of an event that has occurred long ago, a person alleging that they have suffered from dissociative amnesia, may be truthful and accurate in their recounting of the event, or they may be telling what they believe to be true, but about which they are mistaken, or they may not be telling the truth.
(c)This reinforces my views expressed at [54] to [56] above, as to the special care that must be taken in considering the evidence as a whole.

Facts which do not appear to be in dispute

There appears to be no dispute about the following:
1.The appellant was born in 1972.
2.The appellant lived with her family at the home where it is alleged much of the sexual abuse took place (the first home).
3.The first home had a garage which was built in about 1973, which the father used as a workshop, and where he kept his tools including power tools. The workshop had a pit.
4.The father owned a collection of guns and liked to use them.
5.The family went to a house on an island in Yunderup on at least one occasion when the appellant was young. There was a dingy on the jetty near the house.
6.The family went on holiday to Rottnest when the appellant was young.
7.The father and the mother went through an acrimonious divorce in 1984, when the appellant was about 12.
8.After her parents' separated, the appellant, the sister and the brother lived with the mother for about a year in the first home.
9.After an argument with the mother, the appellant, the sister and the brother went to live with the father and his new partner, who became his second wife, at another address (the second home). The brother later returned to live with the mother.
10.After the divorce settlement the father, his second wife, the appellant and the sister returned to live in the first home. The brother continued to live with the mother.
11.The brother had little contact with the father after about December 1988, when he was 18 years old.[11]
12.In June 1986, when the appellant was 14 years of age, she was caught shop lifting. When the father was told about this that evening, he hit her hard at least twice on her bottom with a wooden pole.[12]
13.The appellant did not tell anyone that the father had sexually abused her until in or about July 2001, when she told the sister and, soon after, the boyfriend.[13] She was then 29 years old.
[11] Letter written by the father dated March 2011, on the DPP file.
[12] The father refers to this event in his interview with police on 4 April 2013.
[13] Appellant's statement dated 31 July 2002 par 148.
The appellant alleges that the sexual abuse began from the time of her earliest memories and occurred regularly, at least a couple of times a month, when she was living at home, usually on weekends or in the middle of the night.[14]
[14] Appellant's statement dated 31 July 2002 par 11.
The appellant says that she did not remember the alleged abuse prior to July 2001, other than the incidents which were set out in her letter of 4 April 2017. The details given of those allegations are as follows:
(a)at midnight in 1988, when she was 16 years old, the appellant walked in on the father masturbating, and he continued to do so in her presence smiling at her;[15]
(b)when the appellant went to work at a fast food outlet she would return and find the father naked in her bed leaving it sweaty;[16]
(c)when she was 4 and in the shower with the father, he bounced his erect penis on her head and urinated in her face and hair;[17]
(d)the father said she turned him on and told her details of his sex life and what he liked;[18]
(e)the father rubbed his genitals in front of her over and under his pants;[19]
(f)the father showed her pornographic pictures;[20]
(g)the father exposed his penis to her on numerous occasions;[21]
(h)the father watched her in the shower and using the toilet; and
(i)the father touched her breasts and bottom, pretending it was an accident, and kissed her open mouthed.
[15] Appellant's statement dated 31 July 2002 par 158; appellant's email to police dated 21 July 2005.
[16] The appellant's statement dated 31 July 2002 par 154.
[17] Appellant's email of 4 April 2017; email to police dated 21 July 2005.
[18] Appellant's email of 4 April 2017.
[19] Appellant's email of 4 April 2017.
[20] Appellant's email of 4 April 2017.
[21] Appellant's email of 4 April 2017.
The specific incidents that the appellant alleges that she first remembered in or after July 2001 are as follows:
(a)When she was 5 years old the father anally penetrated her with his penis while on a dingy at Yunderup, forced her to have oral sex,[22] masturbated and ejaculated on her face and hair and then threw her in the water.[23]
[22] The allegation of oral sex was first mentioned in the appellant's statement dated 16 December 2002.
[23] Appellant's statement dated 31 July 2002 pars 34 – 62.
(b)When she was in kindy, the father raped her in the pit in the garage.[24]
[24] Appellant's statement dated 16 December 2002 pars 78 – 82.
(c)When the appellant was in Grade 1 the father anally raped her in the vacant house next door,[25] and on another occasion, forced her to have oral sex with him when she had just had her tonsils out.[26]
[25] Appellant's statement dated 16 December 2002 pars 87 – 90.
[26] Appellant's statement dated 16 December 2002 pars 99 – 102.
(d)When the appellant was in Grade 2, the father anally raped both the appellant and the sister in a fort built around a peppermint tree in their back yard.[27]
[27] Appellant's statement dated 16 December 2002 pars 103 – 108.
(e)On a holiday in Rottnest the father anally raped the appellant on a bike ride looking for the guns at Oliver Hill, when they became separated from the family.[28]
(f)When the appellant was in Grade 7 the father put his penis in her mouth as she was recovering from having some teeth removed.[29]
(g)On one occasion the appellant was with the sister in the garage, on her knees. The father pointed a gun at them. He put his penis in her mouth, and tortured her with power tools.[30] The appellant gave additional detail about this event in her second statement, saying it occurred in 1986 (when she was 14), the day before an outing with the mother to Penguin Island. She said the father took her into the garage and penetrated her anus with a welding rod. She defecated and he wiped faeces onto her face. The father then brought the sister into the garage, put his penis into the appellant's mouth, and then raped the sister.[31]
(h)In a separate incident in 1986, the appellant said her father used his drill on her ribcage and broke her skin, leaving a scar.[32]
(i)When the appellant was working in a fast foot outlet between the ages of 14 and 17, in 1986 to 1989 she would return home at about 3.00 am and find the father naked in her bed. He would then have sex with her.[33]
(j)In 1987 when the appellant was 15, the father put the appellant's head in a vice, took her pants down, whipped her bottom and then raped her vaginally. During this attack the sister came to the door.[34]
(k)Between 1986 and 1989, the father sexually assaulted her during driving lessons in his work car, in the middle of the night.[35]
(l)After she was caught shop lifting in 1986, the father came to her room, put a gun to her head, wrapped a belt around her throat, dragged her around the room on all fours, put her onto the bed, and penetrated her anus and her vagina with his penis, alternating between the two.[36]
(m)When the father had a heart attack, in 1999, when the appellant was 27, the appellant visited him in hospital. During the visit the father exposed his penis to her.[37]
(n)When she was 28 years old the father visited the appellant where she was living and working outside Perth. They went to collect firewood. On the way he told her to stop the vehicle she was driving, on a track. He threatened her with a crowbar. He had a gun and threatened to kill her. He put his penis in her mouth and ejaculated. Subsequently they drove onto collect the wood. The father spent the night with the appellant and the boyfriend. The father told the appellant he would kill the boyfriend if she told him.[38]
[28] Appellant's statement dated 16 December 2002 par 109.
[29] Appellant's statement dated 16 December 2002 pars 111 – 117.
[30] Appellant's statement dated 31 July 2002 pars 75 – 82.
[31] Appellant's statement dated 16 December 2002 pars 142 – 161.
[32] Appellant's statement dated 16 December 2002 pars 218 – 224.
[33] Appellant's statement dated 16 December 2002 pars 228 – 231.
[34] Appellant's statement dated 16 December 2002 pars 264 – 272.
[35] Appellant's statement dated 16 December 2002 pars 305 – 323.
[36] Appellant's statement dated 31 July 2002 pars 84 – 110.
[37] Appellant's statement dated 16 December 2002 pars 349 – 356.
[38] Appellant's statement dated 31 July 2002 pars 118 – 144.

The father's interview with police

The police notes of the interview with the father dated 4 April 2013 record that he denied the allegations of abuse.
The father said that he had lived with the mother until 1984. The children initially stayed with the mother. They then decided that they wanted to live with the father and moved in with him. They turned up on a Saturday and a court action was commenced on the Monday. The father was granted custody, based on the children's wishes.

Evidence which supports the appellant's version of events

Independent evidence of sexual abuse by the father

The only evidence other than that of the appellant, the sister and the brother that the father had sexually abused anyone, is the evidence of the brother's friend (GR), in a draft statement to police, which he refused to sign. GR told police on 4 August 2011 that he had not returned the draft because it affected him emotionally, and there were things he wanted to change.[39] Police did not receive a response to attempts to follow up.
[39] Running sheet page 23 of 31, 4 August 2011.
GR told the police that his brother (AB) has told GR that the father had sexually abused AB. This was allegedly said on a number of occasions when AB was, himself, sexually abusing GR, when GR was 11 to 15 years old. AB died when he was 17 years old.
GR said he did not see the father sexually abusing anyone.
GR's evidence might be said to evidence of a propensity by the father to sexually abuse young boys. However, it might equally have been something that AB said to deflect responsibility for his own sexual abuse of GR. It is also possible, given GR told police he wanted to change the statement, that he wished to retract that allegation entirely.
In any event, it does not evidence sexual abuse of the appellant by the father.

The sister's statement

The sister alleges, in her statement dated 29 January 2003, that she and the appellant had both been physically and sexually abused by the father.[40]
[40] Sister's statement dated 29 January 2003 pars 7 – 8.
The sister said she and the appellant shared a bedroom until 1985, when the appellant was 13. The sister said that the father came to their bedroom regularly and forced the appellant to have anal or oral sex. He would then force the sister to have anal or oral sex.[41]
[41] Sister's statement dated 29 January 2003 pars 11 - 12 and 14 – 30.
The only instances where the appellant refers to the father abusing both the appellant and the sister on the same occasion are alleged to have occurred in the garage and the fort.[42]
[42] See pars 66(d) and 66(g).
The sister describes an incident in the fort which is consistent with the appellant's version.[43]
[43] Sister's statement dated 29 January 2003 pars 39 - 47 and pars 40 – 50.
The sister also describes the alleged incident in the garage in largely consistent terms, although she says the scarring of the appellant's ribcage occurred on the same occasion.[44]
[44] Appellant's statement of 29 January 2003 pars 90 – 114.
The sister also said:
1.She had seen the appellant on one occasion in the garage with the father, with her head in the vice and her pants pulled down, consistently with the appellant's allegation.[45]
2.They were both anally raped by the father in Rottnest and hit on the bottom with a stick, in 1976 and 1977 (when the appellant was 4 and 5 years of age). In the appellant's version, she was alone with the father when the sexual assault occurred.
[45] Sister's statement of 29 January 2003 pars 125 – 128.
The sister's statement makes no mention of alleged incidents having been recently remembered. On the appellant's version of events, however, there is no doubt that the sister's allegations were also based on memories first remembered in or after July 2001.

For reasons which I detail below, I do not accept in the sister's evidence to be credible in the sense of being both honest and reliable.

The brother

The brother is older than both his sisters. He said, in his statement dated 29 October 2002, that he remembered an incident in 1975 when he was 5 years of age. He said he saw his sisters lying naked on their backs on the floor of a room in the house they all lived in. Their father was pointing a rifle at the 'private parts' of one of the two girls.[46] Neither the appellant nor the sister say that they remember this event, which is alleged to have happened when they were very young. However, this incident, if it occurred, falls short of the very serious allegations of ongoing sexual abuse the appellant makes against the father.
[46] Brother's statement dated 29 October 2002 pars 6 – 19.
The brother said that he recalled, on one occasion when they were at Yunderup, the appellant came into the house, all wet, and with the father.[47] This is obviously capable of an innocent explanation.
[47] Brother's statement dated 29 October 2002 par 36.
The brother alleges that on 1 March 1986, his father had anally penetrated him after giving him a cordial with a funny taste that caused him to become numb and unable to move. Afterwards his father said he had got off easy compared to what the father had done to his sisters the day before.[48] It appears that the brother alleges this event occurred the day before they went to Penguin Island with the mother.[49]
[48] Brother's statement dated 29 October 2002 pars 39 – 42.
[49] Running sheet page 20 of 31, 5 December 2011.
If that event occurred it might be evidence of a propensity of the father to sexually assault his children, which might in turn, support other evidence of abuse. It might also amount to an admission of the offending that the appellant and the sister refer to as having occurred the day before they went to Penguin Island. This accusation has not been prosecuted, and was not reported to police prior to the brother making his statement.
However, for the reasons referred to in [150] below, I also do not accept the brother's evidence to be reliable.

The mother

The mother said, in her statement dated 10 June 2002, that in the last year of their marriage, the father had been violent towards her. She had, on repeated occasions, woken to find his hands on her throat. On one occasion the father had gripped and twisted her arm.[50] On another occasion, in front of the three children, the father had shot at her, deliberately missing her, but wanting to scare her.[51]
[50] Mother's statement dated 10 June 2002 at pars 7 and 9.
[51] Mother's statement dated 10 June 2002 at par 8.
The mother said there were many examples of the father's threatening and bizarre behaviour, but she was not aware that he had directed his behaviour towards the children.[52]
[52] Mother's statement dated 10 June 2002 at par 16.
The mother's statement does not provide any support for the allegations of sexual abuse against the appellant, or the sister, or the brother.

Allegations of murder

In an email to police dated 24 August 2013, the appellant referred to details of allegations that her father had murdered a number of men, and claimed to have been a witness to two. She claimed to have a memory, at age 15, of her father forcing her to get a decapitated head out of a bin of water. She says another young man was killed at the same time.
In a statement to police dated 29 January 2003 the sister alleged that the father had committed 5 murders, and claimed to have been a witness to four of them.
The sister said that:
(a)When she was 9, the father anally raped her in the garage with a young man watching. The father then shot the man with a rifle and anally raped the man while he was dead.[53]
(b)When she was 13, she heard a shot in the night. The next day she went with the father to a remote spot and he made her help him bury the chopped up body of a young man.[54]
(c)When she was 15, the father showed her the body of a dead man in the garage.[55]
(d)When she was 16, the father took her into the garage where he had sex with her with another man watching. He then made her give the man oral sex. The father then killed the man with an axe and put the body in the car boot. The father then made the sister clean the garage.[56]
[53] Sister's statement dated 29 January 2003 pars 22 – 25.
[54] Sister's statement dated 29 January 2003 pars 26 – 32.
[55] Sister's statement dated 29 January 2003 pars 35 – 36.
[56] Sister's statement dated 29 January 2003 pars 37 – 42.
The sister also said that, when she was between 5 and 7 years old, she had overheard the father telling the woman who became his second wife that he had shot an aboriginal man in the head and buried him beside the road near Kalbarri. The man had been involved in the theft of a safe from a pub, and was on a fishing boat with the father and the father's colleague.[57]
[57] Sister's statement dated 29 January 2003 pars 19 – 21.
There are other versions of this last allegation. The mother says that the father told her in 1982 that he had murdered someone who she believed to be aboriginal, up north.[58] The aunt said that, in the 1980s, she had been told by another brother that the father had accidentally hit an old aboriginal person with his car while driving his vehicle up north and killed him, and that the appellant's father had buried the man in a shallow grave. The aunt said that the father had denied this.[59]
[58] Mother's statement dated 10 June 2002 par 11.
[59] Aunt's statement dated 24 August 2002 pars 11 – 12.
The colleague said that, although there had been a theft of a safe on a work trip he was on,^[60] he had never heard the story about the father having shot and killed an aboriginal man, and had certainly not witnessed it.[61] The colleague referred to one incident where, on a work trip with the father, the father had stopped the car they were in, retrieved a gun from the boot and undertaken some target practice.[62]
[60] Colleague's statement dated 2 October 2013 pars 8 – 9.
[61] Colleague's statement dated 2 October 2013 pars 19 – 20.
[62] Colleague's statement dated 2 October 2013 pars 11 – 12.
It is inherently unlikely that the father could have carried out the murders as alleged, or any of them, and for those to have been entirely undiscovered, as alleged.[63] It is also difficult to accept the appellant and the sister had no memory of these events until 2001, particularly those which are alleged to have occurred when they were 15 and 16 years old, even accepting the possibility of dissociative amnesia.
[63] A liking of guns does not evidence a propensity to kill people, let alone any actual murder.
The appellant submits that the allegations of murder are irrelevant to her claim and should be disregarded. However, in my view, the making of these inherently incredible allegations very seriously undermines the credibility of both the appellant and the sister in relation to the allegations of sexual abuse against the father.

Evidence which contradicts the appellant's version of events

The appellant, and the sister, provided the police with details (over the years) of seven events which involved witnesses other than the sister, or the brother and one where the boyfriend was present on the weekend when an event is alleged to have occurred.
In each case where police were able to obtain statements or draft statements from the other people involved, those people either did not support the version of events given by the appellant, or the sister, or denied what is alleged to have occurred. These are detailed below.

Sexual assault by relative A

The most serious of these allegations concerns relative A and relative C.
The appellant claimed for the first time in an email to police dated 25 September 2008, and elaborated on in an email dated 11 June 2011, that she was sexually assaulted by relative A, while relative C was present and that the appellant was present when relative C was sexually assaulted by the father.
In their statements to police:
(a)Relative A (relative C's father) denied this happened.[64]
(b)Relative B (relative C's mother) said that relative C was never alone with the father, as relative B was always there.[65]
(c)Relative C said that this event did not happen.[66]
[64] Relative A's statement dated 11 March 2013 par 5.
[65] Relative B's statement dated 11 March 2013 par 14.
[66] Relative C's statement dated 15 March 2013 par 8.
This evidence, in particular of relative C, casts serious doubt on the credibility of the appellant's account in relation to this incident and generally. Further doubt arises, in my view, as a result of the appellant's failure to report this apparently significant event until six years after she first reported the father's sexual abuse to police in 2002 and seven years after she says she had recovered memories of that abuse in 2001.

Sexual assault in neighbour B's backyard

In an email from the sister dated 15 November 2002, which the appellant forwarded to police, the sister said that the father sexually assaulted her, the appellant, and another girl in an old car in the backyard of the home of neighbours A and B. The sister said that neighbour B came up to them whilst this was happening, and the father hit neighbour B and told him to go away.
The appellant did not tell police that she had a memory of this event, although she forwarded the email to them, apparently endorsing it.
Police were unable to locate the girl the sister had identified as having been assaulted by the father.
Neighbour A, says that she lived in the house next door until she was 11, in about 1977 (when the appellant was about 5 years old). Neighbour A cannot recall a car being in their backyard, although she could recall play equipment. [67]
[67] Neighbour A's statement dated 6 January 2012 par 17.
Neighbour B who was about 10 when they moved, said that he did not remember the event described happening, the other girl said to have been involved, that there was ever an old car in his backyard, or the father ever hitting him or telling him to go away.[68]
[68] Neighbour B's statement dated 7 October 2013 pars 10 – 14.
The evidence of neighbour A and neighbour B serves to undermine the credibility of the sister's account in relation to this incident and generally.

Incident with sister-in-law's daughter

In an email dated 21 July 2005, the appellant told police that the sister‑in‑law had walked in on the father, who was babysitting the sister‑in‑law's daughter, and found the daughter sitting naked on the father's face with a 'huge gash on her vagina'.
In an email to police dated 6 September 2011 the appellant referred to this incident in different terms. She said the sister‑in‑law saw the father lick the sister‑in‑law's 3‑year‑old daughter's anus and vagina. The appellant said that she (the appellant) had a memory of the father licking semen and poo from the child's anus and genitals.
The sister‑in‑law said, in her statement dated 11 August 2011, that on one occasion she had left her 3‑year‑old daughter with the father and his second wife overnight. When she returned she found the father lying on a bed in his underpants with the daughter sitting in his lap in her knickers. The wife was not home.[69]
[69] Sister-in-law's statement dated 11 August 2011 pars 25 – 31.
The sister‑in‑law was certainly concerned about this incident. However, she did not see either version of what the appellant alleged had happened. She also said that the father would often walk around the house in his underwear.[70]
[70] Sister in law's statement dated 11 August 2011 par 17.
The sister-in-law's statement falls significantly short of the appellant's allegations. Those allegations also changed, and increased in seriousness, between July 2005 when first reported, and the later report in 2011. These discrepancies again serve to seriously undermine the appellant's credibility generally.

Incident with step-brother B's daughter

In her statement to police dated 16 December 2002, the appellant said that in 1987 the father had threatened to put her face in a moving fan, tied her up and raped her.[71] Later on the same day step-brother B was at the house with his wife and two children. The appellant alleges one of the children, who was about 2 1/2 years old, pulled the fan on top of herself. The fan was moved to another room. Later the appellant alleges step-brother B told the appellant that he had heard his daughter scream and went in to see the father and the child with the fan on top of her again.
[71] Appellant's statement dated 16 December 2002 pars 285 – 289.
In an email to police dated 2 September 2015 the appellant made a more serious allegation about this event, saying she had:
specific memories of [Step-brother B's daughter] being violently raped with her head put into as [sic] giant fan which accidentally fell on her TWICE, the parents came running to her screams.
(original emphasis)
Step-brother B said that he had no recollection of an incident where a fan had fallen on his daughter. He said he thought he would have remembered it.[72] This statement was given before the allegation was made that his daughter had been raped on this occasion.
[72] Step-brother B's statement dated 13 March 2013 pars 20 – 21.
Again, the change, and increasing seriousness of the appellant's allegations, from the first statement to the email in 2015, coupled with step-brother B's denial of the event, serves to undermine the appellant's credibility not only in relation to this event, but generally.

Incident concerning cousin C

In an email to police, dated 25 September 2008, the appellant said that she had seen cousin C being raped by the father in Bunbury in 1978.
The police prepared a draft statement based on an interview with cousin C on 13 June 2011. This records that he told police that he had never been sexually abused by the father nor witnessed any abuse.
Cousin C's draft statement does refer to an occasion in Bunbury when he was about 8 or 10 years old when the father had twisted his arm for no reason until he started crying.[73]
[73] Cousin C's unsigned draft statement par 6.
The DPP file indicates cousin C declined to sign the draft statement prepared by police. The record of his email to that effect says that he wanted as little to do with the matter as possible and would rather not sign.[74] He said at the time of the interview that he was reluctant to assist the investigation due to fears of repercussions by the father.[75] There is, however, nothing to suggest that he resiled from the statement that he had not been sexually abused by the father.

Incident of friend D

[74] Running sheet page 25 of 31, 28 June 2011.

[75] Running sheet page 27 of 31, 13 June 2011.

In an email to police dated 17 June 2011, the appellant referred to an incident where she was late home from work because she was hanging out with friend D. The appellant said that the father grabbed friend D, shook her violently against a car bonnet, and 'backhanded' her.
Friend D says that police had told her about this allegation and it was not true.[76]
[76] Friend D's statement dated 27 March 2011 par 14.
The appellant said in her oral submissions to me that she had recorded this event in the diaries that she kept at the time. The reference to this event in the transcript summaries of the diaries on the DPP file reads as follows:
My Dad came up & grabbed hold of [friend D] & shook her and blasted her (what a bastard, bloody hell it's none of his business or his kid to tell off).
Accordingly, the contemporaneous diary entry supports the conclusion that the father shook friend D and told her off, but not that he hit her, consistent with friend D's statement, and inconsistently with the appellant's recollection. Again this undermines the appellant's credibility generally.

Incident with friend C

In an email to police dated 18 September 2008 the appellant said that friend C had told her that, when she was 12, a man took her into a garage, shut the door, hurt or scared her, and let her go.
Friend C said this event did not happen.[77]

Sexual assault at age 28

[77] Friend C's statement dated 17 September 2012 par 10.

In relation to the last sexual assault the appellant complains of, referred to at [69(n)] above, the boyfriend said in his statement that he recalled an occasion when the father had come to stay with the appellant at her place outside of Perth. The appellant had told him that the father was coming, and the boyfriend had intended to leave them alone to catch up. However, the appellant rang him and asked him to come over. He said that, after the father left, the appellant seemed happy and talked about getting a load of firewood.[78]
[78] Boyfriend's statement dated 19 December 2002 pars 4 and 28 – 30.
It is difficult to accept, had the incident the appellant alleges occurred, that she would have appeared unaffected by it as the boyfriend's recollection suggests.

Incidents allegedly reported to friends

The appellant said in her first statement to police that she had mentioned some of the things she referred to in her statement to friend A when she was 16 years old (in 1988) and to friend B when she was 17 years old (in 1989). In her second statement the appellant said that she had told friend A of having the father waiting for her in bed when she got home, and about unfair treatment, but did not tell her about the sexual abuse.[79] The appellant also said that had told friend B of her father being in her bed, but not of the sexual abuse.[80]
[79] Appellant's statement dated 16 December 2002 pars 447 – 448.
[80] Appellant's statement dated 16 December 2002 pars 449 – 450.
Friend A said that neither the appellant nor the sister ever mentioned they were being sexually abused by the father.[81]
[81] Friend A's statement dated 8 December 2011 par 10.
Friend B said that she recalled one occasion when the appellant told her that she had to wash her sheets because the father had slept in her bed and made the sheets all sweaty. She did not understand the appellant to have been in the bed at the same time.[82]
[82] Friend B's statement dated 17 February 2003 par 21.
Again this falls short of supporting the appellant's allegations.

The appellant's discussions with the sister and the brother and therapy

The appellant submitted in her affidavit of 4 January 2018 that:
3.Firstly, I did not collaborate with other victims, including my sister. After independently recovering our own memories we later corroborated our recollections. We went to lengths to independently recount and record out individual abuse and I did so without professional help, as I was told that this could result in my statement not being admissible in Court, due to possible contamination from leading questions from a psychiatrist for example. I did all in my power, with great unsupported suffering to produce my own authentic recounts.
4.Much later my brother and step brother confirmed and added to the allegations. This was the first time my brother ever discussed being sexually abused, and it was consistent with my sister and my accounts.
The appellant said, in her second statement, that when she discussed the abuse with the sister in July 2001, she did not tell the sister specifics 'but we discussed it like "Can you remember …" '.
The appellant went onto say:
I started to remember the sexual abuse after talking to [the sister]. My sister rang me up in [a place]. [The sister] said she must speak to me face to face about [the father].
The appellant said that there was then a brief discussion about the father and guns, and the appellant,
was going to ask, 'Did he do sexual stuff to us too' but I didn't. I already knew and I didn't want to go into it in front of [the boyfriend].[83]
[83] Appellant's statement dated 16 December 2002 pars 406 and 408.
In an email to police dated 21 July 2005, the appellant said that:
My memories came up independent of any help or input from [the sister's] stories or therapists. I wanted to know it was real, as even me- I was sceptical having no idea about trauma response and what was happening to me. So I did it alone to share later with [the sister] to see how accurate it all was. ...[The sister] and I did collaborate later about stories to get a bigger picture then [the brother] told me that he always remembered being raped by [the father] and that it was his dark secret he never shared.

The boyfriend said that from August 2000, the appellant was living outside Perth and he would stay with her every night.[84] The sister rang the appellant and the appellant went to visit her in Perth.[85] Soon after the sister called him, very distressed, and told him that the appellant was also distressed. He then drove to Perth.[86] The sister told the boyfriend that she had seen a counsellor and had undergone therapy whereby repressed memories were brought out by re-enactments.[87] The boyfriend spoke to the appellant and she told him that the father had been raping her and the sister for years.[88]
[84] Boyfriend's statement dated 19 December 2002 pars 5 – 6.
[85] Boyfriend's statement dated 19 December 2002 13.
[86] Boyfriend's statement dated 19 December 2002 pars 14 – 15.
[87] Boyfriend's statement dated 19 December 2002 par 18.
[88] Boyfriend's statement dated 19 December 2002 par 19.
The mother said that the appellant first told her she had been abused in July 2001. The mother said that the appellant then went for therapy in July and August and subsequently told the mother that she had been sexually and physically abused.[89]
[89] Mother's statement dated 10 June 2002 at par 17.
Friend B said that in 2001 the appellant had told her that the appellant and the sister had seen a counsellor who had induced a regressed state and they had gone back into their childhood where their father had sexually abused them.[90]
[90] Friend B's statement dated 17 February 2003 at pars 27 – 32.
The appellant did not, apparently, recall the incidents she now says happened when she was 27 and 28, when she first recalled the abuse in about July 2001. In relation to the latter incident, in an email dated 4 November 2001, sent to friend A, the appellant says 'I fear he got to me when I was [outside Perth] because of my memory blackout and his weird demeanour'. In an email to the aunt dated 28 June 2002 the appellant said she 'had a loving father even thru [sic] 29 years of this false belief. It took only a month to fully realise I have no love or admiration of any speck for this man', and then refers to childhood abuse but not the alleged incidents as an adult.
The counsellor said, in her statement dated 20 July 2009, that she first saw the appellant on 13 July 2001. She said the appellant attended the counsellor for therapy on 19 and 26 July 2001, 18 June 2002, 18 December 2002, and 8 January 2003. The therapy consisted of 'talking, listening, reflective listening, no interpretation and showing [the boyfriend] how to hold her when she was having flashbacks/nightmares to bring her into the present.' In June 2002 the appellant came to learn how to breathe when giving a statement to police, so she could remain in control.
The counsellor denied using any techniques or therapies to induce any memories. She said that, at the time she saw the appellant, the appellant was 'having partial explicit memories, a gun, a patch of blood and incidents of abuse. They were fragmented memories'.
In my view, it is apparent, from the statements and emails referred to in [143] to [148] above, that the process of remembering the alleged events, either with the counsellor, or using techniques obtained from the counsellor by the sister, was more extensive than the appellant has been, or is now, prepared to admit. Some further evidence of this appears from the contents of the sister's email to the father referred to at [163] below.
It is also apparent that the appellant's memories of sexual abuse began only after she spoke to the sister, and that those memories have increased over time after conversations with the sister and the brother. This undermines the credibility of the evidence of all of them.

Other evidence of the father and his relationship with the appellant

The descriptions of the father and his relationship with the appellant vary widely depending on who is describing him. A number of witnesses described the father in positive terms, or said they had not observed inappropriate behaviour.[91]
[91] Relative B statement dated 11 March 2013 pars 111 – 112; relative C statement dated 15 March 2013 pars 6 – 7; friend C statement dated 17 September 2012 pars 4 – 6; step-brother B's statement dated 13 March 2013 pars 14 – 15; cousin B's statement dated 8 February 2013 pars 7 – 9 and 15; neighbour B's statement dated 22 September 20011 par 111; friend A's statement dated 8 December 2011 pars 12 – 14.
Of those who spoke of the father in negative terms or said they had observed inappropriate behaviour:
(a)The sister‑in‑law said that the father was arrogant and rude towards the appellant and the sister, and would belittle them in front of others.[92]
(b)The sister‑in‑law said she had seen the father come out of the sister's bedroom on a couple of occasions after being told by the appellant that the sister had her boyfriend in her room. The sister‑in‑law said that the father appeared awkward and there was tension on these occasions.[93] She also says that she saw the sister come out of the garage on more than one occasions shaking uncontrollably and crying.[94]
(c)The aunt recalled that on at least two occasions, when the sister was about 12 years old, the aunt visited them unexpectedly and found the sister and the father in the same bedroom. The father looked annoyed and the sister looked upset.[95]
(d)Step-brother A described his step-father as 'very controlling'.[96] He described one incident where he came home in the middle of the day and found the front door locked. He looked through a window and saw the father walking out of his bedroom, naked, with a rifle slung over his shoulder.[97]
(e)Cousin A said that she found the father to be a bit scary and thought he looked at her in an inappropriate way.[98] She said, however, he had never sexually or physically abused her.[99]
(f)Cousin C said that he was scared of the father, who would bully, threaten or intimidate him and the other children.[100] As I have already said, however, cousin C said that he had never witnessed any sexual abuse by the father nor been abused by him.[101]
(g)Neighbour A said that she remembered being scared of the father.[102]
[92] Sister in law's statement dated 11 August 2011 par 10.
[93] Sister in law's statement dated 11 August 2011 pars 14 – 15.
[94] Sister in law's statement dated 11 August 2011 par 18.
[95] Aunt's statement dated 24 August 2012 par 14.
[96] Step-brother A's draft statement obtained on 27 June 2002 par 8.
[97] Step-brother A's draft statement obtained on 27 June 2002 pars 10 – 13.
[98] Cousin A's statement dated 17 September 2012 par 12.
[99] Cousin A's statement dated 17 September 2012 par 19.
[100] Cousin C's unsigned statement par 5.
[101] Cousin C's unsigned statement par 11.
[102] Neighbour A's statement dated 16 January 2012 par 11.
The observations referred to in [152(b)], [152(c)] and [152(d)] above are clearly capable of innocent explanation. They do not evidence sexual impropriety, let alone the allegations of sexual abuse. Neither do the negative recollections support the appellant's allegations of sexual abuse. Although it may be accepted it is strange to walk around the house naked with a gun, the father apparently believed he was alone. Although he may have appeared creepy, or scary, to some children, this is not evidence he behaved inappropriately towards them, let alone sexually abused them, or the appellant.

Correspondence between the appellant, the sister, and the father

The letters and other correspondence on the DPP file between the appellant and the father before 2001 do not hint at the abuse now alleged. They are in affectionate terms.
On 25 July 2001 the appellant apparently sent an email to the father, again in affectionate terms. It would appear any recollection of abuse came later. However, the terms of this email, and the other correspondence, are inconsistent with the events the appellant now alleges she had a constant memory of, referred to in [68] above.
The emails between the sister and the father between January and 25 July 2001, may fairly described as being in chatty, friendly terms. Again the contents of those emails give no hint of any issues between them.
On 5 and 8 August 2001, the father sent the appellant emails to the effect that he was worried that he could not get in touch with her. Accordingly, it appears the recollections or some of them, that the appellant now claims to have occurred in a very short period between 25 July and 5 August 2001.
On 9 August 2001, the appellant and her sister jointly replied to the father's email and said that,
there are very valid reasons for why we have both made some recent decisions, and if you think about it, I am sure you can understand exactly what these are. By the way, have you ever thought about setting up your own Hotmail account.
This last appears to be a reference to the father using his partner's email address.
Later on 9 August 2001, the father emailed the appellant in response and asked her why she had sent him 'this odd message', and asking whether he had done something or whether it was something to do with his relationship with his partner (who was not the mother or his second wife). He asked her to call him.
About an hour later, the father emailed the appellant again and asked her why she had sold 'his shares', which he said were bought using his money.
Later on 9 August 2001, the appellant emailed the father and said that they had no issue with the father's partner and said:
Yes it is about our upbringing. Ps as for your share money, that is not a grain of sand on the expanse of Australia's coastline for compensation for what you put us through.
On 10 August 2001 the father responded, expressing dismay at the email. The father also emailed the sister asking her if she could shed light on the appellant's comments.
On 14 August 2001, the sister emailed the father and said that she had started counselling about what she had thought was anxiety, but was diagnosed with severe post‑traumatic stress disorder by her GP and psychotherapist. She thought this was due to her seeing the father being violent and intimidating towards the mother when she was younger. However, the sister went on to say:
After my last phone call with you I had flashbacks of the extreme things that were done to me and I can never forgive this. [The appellant] too has been in counselling – which has cost a lot of money for us both. My memory keeps on churning things out and now I know that [the father] is far too toxic a person from me to have in my life. [The appellant] and I need to do whatever it takes to heal, and [the appellant] needed to pay to get counselling and have distance, understanding and support.
The father then sent both the appellant and the sister email letters to the effect that he had reflected on their childhood and thought their upbringing was pretty normal, although the divorce from the mother was unnecessarily acrimonious.
The father also refers to the shoplifting incident and says 'I still regret the punishment but at the time I didn't know how else to stop you doing it again.' He then says:
As I said to [the sister], I will let the matter of the shares pass for now. However taking my LSL was dishonest, whatever your excuse you had a fiduciary duty not to steal from me. Believing you did the right thing is an attitude that could land you in gaol.

The appellant's diaries

The DPP files contain a typed summaries of the contents of diaries that the appellant kept between 1985 and 1999. I have already commented on some of the contents of these summaries. Other entries appear inconsistent with the events the appellant says she has always recalled, let alone the ongoing extreme sexual abuse she says she now recalls. None of the incidents, whether those now claimed to be continuous, or discontinuous, memories, are mentioned in those diaries, as far as is recorded in the summaries.
With respect the shoplifting incident, the appellant recorded that the father hit her on the bottom with a stick twice. He also slapped her across the face. She recorded 'I have never been so scared on in pain [sic] in my whole life'.
The appellant records two assaults when she was 17 and 18 by the father's second wife. The appellant also records an argument in 1992 when she disclosed the father's wife's assaults to her father. During a second argument about this, when the wife admitted slapping the appellant, the appellant wrote that the father had attempted to strike her, but she had blocked the blow. The appellant said:
I've never seen him like that. If he'd lost it at me I'd have been stretcher material. He sounded half crying, voice breaking, his presence so violent and fists clenched fuming and shaking. He said his bit, didn't touch me and left. I packed and went to [the sister's]. Mum wasn't surprised. She tried to tell us about Dad's other side for years. I still don't believe it all.
In a diary dated 1989, when the appellant was 17, she describes herself as a virgin.
In an entry written in 1998 to 1999 the appellant records her father being in hospital after having a heart attack. She does not refer to the alleged incident of him exposing his penis. At that time she was 27 years old.
The appellant expresses affection for her father in the summaries, but also appears resentful of him at times.
The contents I have referred to are, in my view, completely inconsistent with the prolonged, extreme, sexual abuse the appellant alleges was taking place over the same period. They are also inconsistent with the events about which the appellant says she has a continuous memory having occurred.

Custody proceedings

The DPP file contains a copy of an affidavit apparently sworn by the appellant on 30 August 1999 and filed in Family Court proceedings between the father and his second wife. At the time the appellant was 27 years old. In it she refers to incidents referred to in her diaries, where she says that the father's second wife assaulted her. She says that her father was the primary disciplinarian and was 'consistent and fair'. She said that she enjoyed spending time with him alone.
The DPP file also contains a welfare report dated 10 July 1985, apparently prepared for the Family Court, when the appellant was 13. The author of the report says that the appellant had said that she wanted to live with her father. She said that one reason was that she felt happier in his household, and the mother tried to influence her against the father. She said that she loved the father and described him as helpful and understanding.
The appellant now says that the father told her what to say. However, that does not explain her describing the father positively in the interview at 13 years where the father was not present. It also does not explain her speaking positively of him years later, when she was an adult.
The fact the appellant appears to have chosen to live with the father rather than the mother is also inconsistent with years of ongoing abuse having occurred prior to her parents' separation, even if it is accepted she did not then remember the events which are said to be discontinuous memories.

The psychologists' reports

The appellant refers me to the diagnosis of post-traumatic stress disorder in EC's report (the first psychologist) and the description of her therapy in LH's report (the second psychologist).
These reports consist largely of a repeat of the history given to the psychologists by the appellant of sexual abuse. As such they do not add to the evidence of that abuse having occurred.
I note also that EC's report refers to 'some structural dissociation of detachment and compartmentalisation'. Given the marked differences between what the appellant now says she always recalled and what she recalled in 2001, this suggests EC did not understand the full extent of the appellant's allegation of dissociative amnesia.
This impression is somewhat reinforced by EC's reference to the appellant fleeing overseas 'after the violent rape from [sic] her father at age 28 in 2001.' No mention is made of EC having been informed that the appellant also claims to have completely suppressed that memory for a year after that event is alleged to have occurred.

Conclusions about the evidence of abuse

In my view, the contradictions, and inconsistencies, referred to in [101] to [133] above, between the appellant's version of events, and that of the sister, on the one hand, and the independent evidence, on the other, seriously undermine the credibility of the appellant's version of events as a whole.
That conclusion is reinforced by the evidence that I have referred to in these reasons that undermines the appellant's credibility, and that of the sister, generally, in particular:
1.The allegations referred to at [93] to [100] above, that the father murdered a number of men, which appear clearly to be without foundation.
2.The contents of the summaries of the contemporaneous diaries the appellant kept over 15 years, referred to in [166] to [172] above, which I have concluded are completely inconsistent with the sexual abuse the appellant alleges having occurred. The one reference to actual physical abuse by the father in those summaries, referred to in [167] above, is consistent with the one incident the father referred to, in his email to the appellant referred to at [165] above.
4.The appellant's positive description of her father in an affidavit sworn when she was 27, referred to in [173] above.
5.The correspondence between the appellant, the sister, and the father up to 25 July 2001, referred to at [154] to [156] above, which may fairly be described as affectionate and friendly.
6.The conclusions I have reached in [149] and [150] above concerning the circumstances under which the appellant recovered memories of the alleged events.
7.That the last two detailed instances of alleged abuse occurred when the appellant was 27 and 28 years old. Even accepting as I have, in [66(a)] above, that experiences of childhood sexual abuse may be entirely suppressed and not remembered for many years, there is nothing before me to suggest that this may carry on well into adulthood. I do not accept that the appellant could or would have completely and instantly suppressed all memory of the very serious incident said to have happened when she was 28, had that event actually happened.
The fact that the allegations of abuse were first made after the father had implicitly threatened to report the appellant for having sold shares he owned without authority to do so, is arguably consistent with the appellant believing she was owed compensation for past abuse. Accordingly, I place little weight on this factor.
I am unable to conclude, on the evidence before me, considered as a whole, that it is more likely than not that any of the instances of alleged sexual abuse occurred.
In making this finding I make no comment about whether the appellant now honestly believes the abuse took place. I am not in a position to make any assessment of her credibility on the basis of demeanour, as she has not given evidence before me.
However, as I have said, I am required to scrutinize the whole of the evidence with special care in circumstances where very serious allegations have been made of offences said to have occurred many years before they were first reported, and which are, for the most part, based on memories of childhood said to have been recollected for the first time as an adult, where the assessment of the reliability of such memories is difficult even in cases where it accepted the witness honestly believes the events occurred.[103]
[103] As commented on in R v Eishauer (1997) 96 A Crim R 489, BC9704544 at 16 - 18 (Sperling JJ), referred to at [63] above, and in [66(b)] above.
Having undertaken that task, for the reasons I have given, and in particular in light of the difficulties with the evidence that I have identified in these reasons, and the conclusions I have reached at [181] and [182] above, I cannot be satisfied, on the balance of probabilities, that any of the alleged offences occurred.

Quantum

The appellant's case focused on the allegations of abuse, rather than the evidence in support of the quantum of compensation. Her claim for loss centred around her claims of psychological injury, including difficulty being in an intimate relationship, 'anorexia athletica', chronic migraines, agoraphobia, OCD, severe sleep disorders, a constant state of hypervigilance, inability to handle stress, severe performance anxiety, flashbacks, difficulty dealing with male superiors, and an inability to hold down a job.
It was clear at the hearing that additional evidence was required to support these claims. Had I been satisfied on the balance of probabilities that the alleged offences, or any of them, had occurred, I would have allowed the applicant additional time to present evidence on quantum, as suggested by counsel for the amicus curiae at the hearing.
However, given my view that the appellant had not satisfied me, on the balance of probabilities, that the alleged offences actually occurred, it is not necessary for me to assess damage.

Conclusion

I am not satisfied on the balance of probabilities that any criminal offence has been committed against the appellant such that she has an entitlement to be awarded compensation pursuant to s 17 of the Act.
Accordingly I:
(a)allow the appellant's application to extend the time in which to appeal to 21 July 2017;
(b)refuse leave to file the application out of time and, to the extent necessary, dismiss the application; and
(c)dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
ASSOCIATE TO JUDGE VERNON
19 SEPTEMBER 2018

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RW [2018] WADC 116

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