WG v R; KG v R

[2020] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

WG v R; KG v R [2020] NSWCCA 155

Hearing dates:

17 & 19 September 2019

Date of orders:

9 July 2020

Decision date:

09 July 2020

Before:

Bathurst CJ at [1]; Fullerton J at [1117]; Fagan J at [1588]

Decision:

WG

(1)   Grant the applicant leave to appeal against conviction.

(2)   Dismiss the appeal.

(3)   Grant the applicant leave to appeal against sentence.

(4)   Dismiss the appeal.

KG

(1)   Grant the applicant leave to appeal against conviction.

(2)   Dismiss the appeal.

(3)   Grant the applicant leave to appeal against sentence.

(4)   Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – whether the absence of new evidence led to a miscarriage of justice – whether Crown has an obligation to call all expert witnesses available

CRIME – appeals – appeal against conviction – whether the decision for a joint trial and the multiplicity of charges resulted in a miscarriage of justice – whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdict

CRIME – appeals – appeal against conviction – application for discharge of jury – alleged juror bullying – whether the trial judge erred in refusing to discharge the jury

CRIME – appeals – appeal against conviction – admissibility of tendency evidence

CRIME – appeals – appeal against conviction – unreasonable verdict – whether the jury must have been left with a reasonable doubt – advantage enjoyed by the jury – whether the available evidence was capable of meeting the submissions – reliability of complainant

CRIME – appeals – appeal against sentence – manifest excess – gravity of offending – where the facts lay on the spectrum of least serious instances of offence to worst category – range of possible sentences that could be imposed

CRIME – appeals – appeal against sentence – evidence of good character – whether the sentencing judge erred in not giving weight to prior good character – good character taken into account but given no weight

CRIME – appeals – appeal against sentence – whether error by the sentencing judge – consideration of non-exculpatory duress – treatment of prospects of rehabilitation – consideration of applicant’s mental health – treatment of victim impact statements

Legislation Cited:

Crimes Act 1900 (NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 89

Jury Act 1977 (NSW), s 73A

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Crofts v The Queen 186 CLR 427; [1996] HCA 22

Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78

EG v R [2015] NSWCCA 21

Elyard v R [2006] NSWCCA 43

Gilham v R [2012] NSWCCA 131

Hughes v R [2018] NSWCCA 2

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JL v R [2014] NSWCCA 130

KG v R [2015] NSWCCA 33

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MFA v The Queen [2002] 213 CLR 606; HCA 53

MRW v R [2011] NSWCCA 260

Mulato v R [2006] NSWCCA 282

Pell v The Queen [2020] HCA 12

PH v R [2009] NSWCCA 161

Phipps v R [2008] NSWCCA 178

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356

R v Apostilides (1984) 154 CLR 563; [1984] HCA 38

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Bauer (2018) 92 ALJR 846; [2018] HCA 40

R v CTG [2017] NSWCCA 163

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

R v Gibson [2002] NSWCCA 401

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279

R v Toohey [2019] NSWCCA 182

Richardsonv The Queen (1974) 131 CLR 116; [1974] HCA 19

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

SGJ v R; Ku v R [2008] NSWCCA 258

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3

The Queen v Baden-Clay [2016] HCA 35

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215

Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Williams v R [2012] NSWCCA 172

XZ v R [2018] NSWCCA 76

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Texts Cited:

Nil

Category:

Principal judgment

Parties:

WG (Applicant)
KG (Applicant)
The Crown (Respondent)

Representation:

Counsel:
J Stratton SC (WG)
G James QC (KG)
B Hatfield (The Crown)

Solicitors:
O’Brien Criminal and Civil Solicitors (WG)
Jeffreys & Associates (KG)
Solicitor for Public Prosecutions (The Crown)

File Number(s):

2012/99735; 2012/76518

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 October 2018

Before:

Huggett DCJ

File Number(s):

2012/99735; 2012/76518

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants WG and KG were convicted at trial of numerous sexual offences committed against their daughter (the complainant). WG, the complainant’s father, was found guilty of 73 counts charged against him, and was sentenced to an aggregate sentence of 48 years with a non-parole period of 36 years. KG, the complainant’s mother, was found guilty of 13 of the 16 counts charged against her, and was sentenced to an aggregate sentence of 16 years with a non-parole period of 11 years. The applicants appealed against their convictions and sentences.

The offending related to a large number of alleged aggravated sexual assaults, aggravated indecent assaults and other offences committed by the applicants against the complainant over a period of 14 years, from when the complainant was 5 years old to when she was 19 years old. In relation to WG, the alleged sexual offending was often accompanied by acts of extreme violence. A substantial number of the offences occurred in a structure on the family’s property referred to as “the shed”. The family was heavily involved in athletics, and WG acted as coach for both the complainant and her sisters.

The complainant, KG and WG gave evidence at trial, as did the complainant’s sisters, various friends, police officers and medical experts. The evidence included evidence from a Dr Norrie, who conducted a gynaecological examination of the complainant. A Dr Nittis assisted by taking photographs at the examination, but did not give evidence. Other evidence included nude photographs of KG with her daughters (including the complainant).

Towards the end of jury deliberations, the trial judge received a report in relation to allegations that a juror felt they had been bullied by other jurors, but rejected an application to discharge the jury.

The applicants relied on a number of similar grounds of appeal. In relation to the conviction appeals, the grounds included that the absence of particular evidence at trial resulted in a miscarriage of justice, that the jury’s verdict was unreasonable, and that the trial judge erred in refusing to discharge the jury. In relation to the sentence appeals, the grounds included that the sentencing judge erred in not giving weight to WG’s good character, that the sentencing judge failed to properly deal with issues of non-exculpatory duress, prospects of rehabilitation and victim impact statements for KG, and that the sentences were manifestly excessive.

The Court of Criminal Appeal dismissed the appeals against conviction and sentence for both WG and KG.

Whether the failure to call Dr Nittis resulted in a miscarriage of justice (WG and KG)

1. While the duty of the prosecutor involves an obligation to call all available witnesses whose evidence is necessary to give a complete account of events, in the circumstances of the case the Crown was not obliged to call Dr Nittis. The obligation arises in the context of an adversarial system and the Crown does not have an obligation to call any expert retained by the accused who happens to disagree with an expert retained by the Crown. Further, Dr Nittis did not disagree with Dr Norrie’s observations but rather drew different conclusions from the same factual background: [966]-[978] (Bathurst CJ); [1118] (Fullerton J); [1588] (Fagan J).

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; R v Apostilides (1984) 154 CLR 563; [1984] HCA 38; Gilham v R [2012] NSWCCA 131; Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4, considered.

R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 ; R v Gibson [2002] NSWCCA 401; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, referred to.

1. Rule 89 of the Legal Profession Uniform Conduct (Barristers) Rule 2015 (NSW) does not extend the common law principles to require a prosecutor to call all expert witnesses who may be available, irrespective of whether they were retained by the prosecution or an accused: [979]-[981] (Bathurst CJ); [1118] (Fullerton J); [1588] (Fagan J).

2. WG: Even if the prosecution should have called Dr Nittis, there was no miscarriage of justice such as to warrant a new trial. Dr Nittis was available to be called by WG, and Dr Nittis did not deal with the critical plank of Dr Norrie’s reasons for her conclusion: [982]-[986] (Bathurst CJ); [1118] (Fullerton J).

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, considered.

R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, referred to.

1. WG (Fagan J): WG cannot here establish a miscarriage of justice. It would be a significant and unwarranted extension of the duty of fair presentation of a prosecution case to hold that the Crown is obliged to call an expert engaged by the defence who expresses opinions different from those of a Crown expert in the same discipline:[1592]-[1607] (Fagan J).

Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4; Gilham v R [2012] NSWCCA 131, considered.

1. KG: Senior counsel for KG did not raise additional issues of fact or law from those advanced by WG, and acknowledged that KG’s trial counsel did not request the Crown call Dr Nittis and did not cross-examine Dr Norrie: [1104] (Bathurst CJ); [1122]-[1125] (Fullerton J); [1589] (Fagan J).

Whether the absence of new evidence in the trial led to a miscarriage of justice (WG and KG)

1. As the evidence sought to be relied on was new, not fresh, evidence, it was necessary for WG to demonstrate that the evidence was of such cogency that innocence is shown to the Court’s satisfaction, or was such as to give rise to a reasonable doubt as to guilt. The new evidence failed to do this: [1015]-[1032] (Bathurst CJ); [1118], [1123] (Fullerton J)

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, considered.

Whether the jury verdict was unreasonable (WG and KG)

1. In considering whether there was an unreasonable verdict, the relevant question is whether it was open to the jury to reach the conclusion at which they arrived, not whether it was open to the jury to reach a different conclusion. In most cases, any reasonable doubt held by an appellate court (after taking into account the advantage enjoyed by the jury) will be a doubt the jury ought to be expected to have had: [1050]-[1053] (Bathurst CJ).

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, considered.

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, referred to.

1. WG (Bathurst CJ): The jury was entitled to accept the complainant’s account. The complainant was clear and consistent in her recollection of events, and there was powerful corroborative evidence to her account. The jury was entitled to accept the tendency evidence that WG had a sexual interest in his daughters. While there were matters in the evidence which may have caused the jury concern, it was open to the jury to reach the conclusion it did, and was therefore not unreasonable: [1054]-[1071] (Bathurst CJ).

2. WG (Fullerton J): The complainant’s memory of particular details related to the offences was supportive of her credibility, as was the corroborative evidence. It was open to the jury to reject WG’s evidence. The jury enjoyed the advantage of observing the complainant and WG give evidence. The jury was also given detailed directions in relation to delayed complaint, and the issue of delay did not give rise to a doubt that the jury should have entertained in respect of WG’s guilt. The evidence available to the jury was capable of meeting the submissions in relation to the complainant’s absences from the house, the configuration of the shed, and the use of barbed wire: [1413]-[1452] (Fullerton J).

3. WG (Fagan J in dissent): The jury had to have had a reasonable doubt about the complainant’s ability to recall the incidents in such detail. The jury must also have had a doubt concerning WG’s guilt because of the high degree of improbability of the complainant’s account. The jury could not reasonably have accepted that the complainant would have kept secret WG’s conduct. In consideration of this ground, the Court is required to consider the whole of the evidence. While the Court must have regard to the jury’s status as the constitutional tribunal for deciding issues of fact, and the advantage enjoyed by the jury, where a Crown case has depended entirely upon the evidence of a complainant whom the jury found credible and reliable, verdicts of guilty may be found unreasonable. The complainant’s evidence was unreliable to the extent that the jury could not find that it excluded the reasonable possibility that the account was the product of psychiatric exaggeration. Further, the corroborative evidence was insufficient to enable to jury to exclude reasonable doubts about the Crown case. The jury must have been left with a reasonable doubt about the complainant’s evidence as a whole, and it was not open to the jury to find the accused guilty: [1611]-[1712] (Fagan J).

MFA v The Queen [2002] 213 CLR 606; HCA 53; Pell v The Queen [2020] HCA 12, considered.

The Queen v Baden-Clay [2016] HCA 35, referred to.

1. KG (Bathurst CJ): It was open to the jury to be satisfied beyond reasonable doubt that KG was guilty of the charges against her. The complainant was clear in her evidence, and the jury was entitled to dismiss the proposition that the complainant planted corroborative evidence and to take into account tendency evidence against KG: [1105]-[1113] (Bathurst CJ).

2. KG (Fullerton J): On the evidence, it was open to the jury to have been left with no doubt as to KG’s guilt: [1454]-[1459], [1464] (Fullerton J).

3. KG: There was no foundation in the evidence that the complainant’s complaint to police was the product of mental illness and that her evidence was false because she was mentally unwell. This submission should not have been made without evidentiary support: [1113] (Bathurst CJ); [1460]-[1463] (Fullerton J).

4. KG (Fagan J in dissent): Intractable improbabilities in the complainant’s account of abuse by WG necessarily left a reasonable doubt over her allegations against KG. It was a reasonable possibility open on the evidence that feelings of betrayal by KG may have contributed to the complainant exaggerating her complicity. The complainant’s allegations against KG were so improbable to have occurred without complaint that it was not open to the jury to have excluded reasonable doubt with respect to these allegations: [1713]-[1717] (Fagan J).

Whether the trial judge erred in refusing to discharge the jury (WG and KG)

1. The report received by the trial judge, taken in context, would not give rise to a reasonable apprehension or suspicion on the part of a fair minded or informed member of the public that the jury had not discharged or would not discharge its task properly. It appeared that the issue had resolved itself by the time the trial judge received the report. The subsequent sheriff’s investigation indicated further that the deliberation process was conducted properly: [1093]-[1098] (Bathurst CJ); [1118], [1126]-[1127] (Fullerton J); [1589] (Fagan J).

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30; Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, considered.

1. No error is revealed in the trial judge’s analysis of the evidence or analysis of relevant principles which would suggest that the exercise of her discretion to refuse the discharge application miscarried: [1104] (Bathurst CJ); [1126]-[1127] (Fullerton J); [1589] (Fagan J).

Whether the decision for the applicants’ trials to proceed jointly and the multiplicity of charges tried together resulted in a miscarriage of justice (KG)

1. There were features of the indictment and the evidence which justified the trial being a joint trial. Further, a large amount of evidence tendered against WG was context evidence admissible against KG: [1104] (Bathurst CJ); [1135]-[1136] (Fullerton J); [1589] (Fagan J).

2. The fact that the jury were not able to reach unanimous verdicts on 3 counts charged against KG allows for the conclusion that the jury considered separately the evidence on each count, and were neither overborne by the multiplicity of the counts charged against WG, nor used impermissible reasoning based on evidence adduced in proof of WG’s guilt. The fact that no complaint was made about the adequacy of the trial judge’s directions also tells against a miscarriage of justice: [1104] (Bathurst CJ); [1144]-[1149] (Fullerton J); [1589] (Fagan J).

KG v R [2015] NSWCCA 33, considered.

Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62, referred to.

Whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdicts (KG)

1. In circumstances where trial counsel for KG did not ultimately seek to persuade the trial judge that a separate summing up was called for or that there was a need to take separate verdicts, and without developing how the failure to deliver a separate summing up was productive of a miscarriage of justice, this ground was untenable: [1104] (Bathurst CJ); [1149]-[1155] (Fullerton J); [1589] (Fagan J).

Whether the trial judge erred in ruling that photographs of KG and her children could be regarded as tendency evidence against her, as showing a sexual interest in her daughters (KG)

1. The trial judge correctly approached the question of the admissibility of the tendency evidence. It was not for the trial judge to undertake an assessment of the actual probative value of the evidence at the point of admissibility. It was for the jury to be satisfied beyond reasonable doubt that the evidence actually showed the tendency contended for by the Crown before they could use the evidence for tendency purposes: [1104] (Bathurst CJ); [1172]-[1173], [1178] (Fullerton J); [1589] (Fagan J).

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, referred to.

1. While the photographs did not constitute a sexual act, it was open to the jury to regard KG’s conduct in commissioning the photographs as capable of showing a tendency for her to have a sexual interest in her children: [1104] (Bathurst CJ); [1174]-[1177] (Fullerton J); [1589] (Fagan J).

R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, considered.

Whether the failure to disclose the nature and extent of the complainant’s therapy resulted in a miscarriage of justice, and whether leave should be granted to tender evidence from Dr John Roberts (KG)

1. The evidence of Dr Roberts was available to KG at the time of trial, and was neither new nor fresh evidence. Further, information about the complainant’s therapy was available to both parties, but the issue was not pursued. A forensic decision was made by trial counsel not to call Dr Roberts. No miscarriage was occasioned by holding KG to that forensic decision: [1104] (Bathurst CJ); [1180]-[1187] (Fullerton J); [1589] (Fagan J).

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, referred to.

Whether the sentencing judge erred in not giving weight to WG’s good character (WG)

1. There was no legal error in the sentencing judge’s approach to WG’s lack of previous convictions. The sentencing judge assessed the weight that might be afforded to evidence of good character and determined, in the exercise of discretion, to afford it no weight in mitigation in all of the circumstances: [1100] (Bathurst CJ); [1486]-[1494] (Fullerton J); [1718] (Fagan J).

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, considered.

1. Bathurst CJ: The sentencing judge correctly took into account the fact of WG’s prior good character but in the circumstances of the case gave it no weight: [1101] (Bathurst CJ).

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, referred to.

Whether the sentence was manifestly excessive (WG and KG)

1. WG: The aggregate sentence was not manifestly excessive in the sense of it being “unreasonable” or “plainly unjust”, and was open to the sentencing judge in the exercise of her discretion. The number of offences and extreme gravity of the offending was so egregious that no comparison with the aggregate sentences imposed in other cases is useful. The aggregate sentence did not reflect any failure of the sentencing judge to properly apply totality principles, and neither is the non-parole period “unreasonable” or “plainly unjust”: [1100] (Bathurst CJ); [1504]-[1530] (Fullerton J); [1718] (Fagan J).

Hughes v R [2018] NSWCCA 2; XZ v R [2018] NSWCCA 76, considered.

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Mulato v R [2006] NSWCCA 282, referred to.

1. WG (Bathurst CJ): The sentencing judge correctly considered where the facts of the particular offences and offenders lay on the “spectrum” that extends from the least serious instances of the offence to the worst category: [1102] (Bathurst CJ).

R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered.

1. KG: The aggregate sentence was neither “unreasonable” nor “plainly unjust”. There will be a range of possible sentences that could be imposed without error, and it is not to the point that KG’s offending may have been objectively more serious such as to elevate her overall offending into a different category of offending. KG’s offending was of a most egregious kind, and taking into account the need for an aggregate sentence to denounce her conduct and to reflect principles of general and specific deterrence, the sentence did not warrant the Court’s intervention: [1115] (Bathurst CJ); [1579]-[1586] (Fullerton J).

Hughes v R [2018] NSWCCA 2; R v Toohey [2019] NSWCCA 182, considered.

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; R v CTG [2017] NSWCCA 163, referred to.

1. KG (Fagan J): The aggregate sentence was manifestly excessive. While an appeal against sentence is concerned with the aggregate not indicative sentences, an indicative sentence which appears manifestly excessive may indicate that the sentence was manifestly excessive. The indicative sentences for 5 of the counts upon which KG was convicted were excessive: [1719]-[1729] (Fagan J).

Whether the sentencing judge erred by neglecting to take into account non-exculpatory duress (KG)

1. The question of whether non-exculpatory duress was a mitigating factor was not overlooked by the sentencing judge. Further, the submission on appeal that the evidence suggested a causal link between KG’s offending and her suffering at the hand of WG failed to discharge the onus of establishing a factor mitigating sentence on the balance of probabilities: [1115] (Bathurst CJ); [1548]-[1556] (Fullerton J); [1719] (Fagan J).

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, referred to.

Whether the sentencing judge erred in her treatment of KG’s prospects of rehabilitation (KG)

1. A sentencing error is not made out by the bald assertion that a more favourable finding might have been made, but by a demonstration that the finding was not reasonably open on the available evidence, or was positively contradicted by it. The onus was on KG to persuade the sentencing judge on the balance of probabilities that an unqualified finding of good prospects of rehabilitation should be made, which was not clearly sought: [1115] (Bathurst CJ); [1557]-[1565] (Fullerton J); [1719] (Fagan J).

Williams v R [2012] NSWCCA 172; Elyard v R [2006] NSWCCA 43, referred to.

Whether the sentencing judge failed to take into account, in mitigation, KG’s mental health at the time of sentence

1. There was no factual basis for this submission on appeal: [1115] (Bathurst CJ); [1566]-[1570] (Fullerton J); [1719] (Fagan J).

Whether the sentencing judge erred in her treatment of the victim impact statements (KG)

1. The sentencing judge made no error in her treatment of the victim impact statements or her assessment of the harm suffered by the complainant and one of her sisters: [1115] (Bathurst CJ); [1571]-[1578] (Fullerton J); [1719] (Fagan J).

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, referred to.

TABLE OF CONTENTS

Judgment OF BATHURST CJ

The Crown case at trial

The complainant’s evidence

(i) Counts 1, 2 and 3 (WG)

(ii) Count 4 (WG)

(iii) Count 5 (WG)

(iv) Count 6 (WG)

(v) Count 7 (WG)

(vi) Counts 8 and 9 (WG)

(vii) Count 10 (WG)

(viii) Counts 11 and 12 (WG)

(ix) Counts 13 (KG) and 14 (WG)

(x) Counts 15, 16, 17 and 18 (KG)

(xi) Count 19 (WG)

(xii) Count 20 (WG)

(xiii) Count 21 (WG)

(xiv) Counts 22 and 23 (WG)

(xv) Count 24 (WG)

(xvi) Count 25 (KG)

(xvii) Counts 26, 27, 28 and 29 (WG)

(xviii) Count 30 (WG)

(xix) Count 31 (WG)

(xx) Count 32 (WG)

(xxi) Counts 33 and 34 (WG)

(xxii) Counts 35 (WG), 36 (WG), 37 (KG), 38 (KG), 39 (WG) and 40 (KG)

(xxiii) Counts 41, 42 and 43 (WG)

(xxiv) Counts 44 and 45 (WG)

(xxv) Counts 46 and 47 (WG)

(xxvi) Count 48 (KG)

(xxvii) Counts 49, 50, 51 and 52 (WG)

(xxviii) Counts 53 and 54 (WG)

(xxix) Counts 55, 56 and 57 (WG)

(xxx) Counts 58 and 59 (WG)

(xxxi) Counts 60, 61 and 62 (WG)

(xxxii) Count 63(WG)

(xxxiii) Count 64 (WG)

(xxxiv) Count 65 (WG)

(xxv) Count 66 (WG)

(xxvi) Count 67 (KG)

(xxxvii) Counts 68 , 69 and 70 (WG)

(xxxviii) Counts 71 and 72 (WG)

(xxxix) Count 73 (KG)

(xl) Counts 74 and 75 (WG)

(xli) Counts 76 and 77 (WG)

(xlii) Count 78 (WG)

(xliii) Count 79 (WG)

(xliv) Counts 80 and 81 (WG)

(xlv) Count 82 (WG)

(xlvi) Counts 83 and 84 (WG)

(xlvii) Counts 85 (WG) and 86 (KG)

(xlviii) Other matters

Cross-examination of the complainant

Re-examination of the complainant

PB

LA

Fiona Rourke

Sharon Palma Hannan

Aloha Lambert

Nicola Jane Frey

Rachel Clarke

Judy Ann Wallis

Senior Constable Laleynya Ryan

Donna Louise Kylstra

Ann Margaret Sky

Denise Alison

Lesley Maxwell (Max) Pye

Dr Martin Chase

Dr Lynette Crehan

Sergeant Justin Carroll

Ty Chapman

AG

Susan San Juan

Professor Robert Fitzpatrick

Dr Christine Norrie

Dr Justine Hoey-Thompson

Sergeant Leigh Hawdon

The case for WG

The case for KG

CG

John G

Jane Goodwin

Paul McGuilverey

Maegan Smith

Leanna Smith

WG’s application for leave to appeal against conviction

Ground 2: The prosecution failed in its duty to call Dr Maria Nittis, a relevant and credible witness, who, together with Dr Christine Norrie, directly conducted a very important physical examination of the complainant JG on 6 August 2012, with the result that this central part of the prosecution case was unfairly unbalanced, and there was a substantial miscarriage of justice.

a Background

b The reports of Dr Nittis

The submissions

a WG

b The Crown

Consideration

Ground 1: The absence of fresh and new evidence in the trial has led to a miscarriage of justice

(i) Dr Nittis

(i) Dr John Roberts and Ms Lisa Celi

(ii) Linda Brandt

(iii) JG

(iv) Casey West

Consideration

(i) Dr Nittis

(ii) Dr John Roberts and Ms Lisa Celi

(iii) Linda Brandt

(iv) JG

(v) Casey West

Ground 4: The jury verdict was unreasonable and inconsistent with the evidence.

The submissions

a WG

b The Crown

Consideration

Ground 5: The trial judge erred in refusing to accede to the application of counsel made on 28 June 2016 that the jury be discharged

The submissions

a WG and KG

b The Crown

Consideration

Conclusion

WG’s sentence appeal

KG’s conviction appeal

KG’s sentence appeal

Orders

WG

KG

JUDGMENT OF FULLERTON J……………………………………………………………………………230

KG’s conviction appeal

Grounds 5 and 6

Ground 9

Grounds 1, 2 and 3

Consideration

Ground 4: The wrongful admission of tendency evidence

Ground 5: (i) Before giving evidence in the trial, the complainant JG had (in the course of therapy related to the allegations in the prosecution case) been subject to ‘sand-tray therapy’ and ‘mandala therapy’, the nature and extent of which was not disclosed; whereby there has been a miscarriage of justice; (ii) leave is sought to tender fresh or new evidence from Dr John Roberts, psychiatrist, whereby doubt is cast on the reliability of the evidence of JG.

The indictment and the verdicts returned on that indictment

WG

KG

The Crown case against each of the accused in broad outline

The offences for which WG was convicted and sentenced

The use of tools

The finding of tools

Incident 1: Between 1 April 1997 and 31 July 1997

Incidents 2 to 12

Incident 2: Between 1 July 1997 and 24 December 1998 - JG aged 5

Incident 3: Between 1 December 1997 and 9 February 1998 - JG aged 5

Incident 4: Between 1 April 1988 and 24 December 1988 - JG aged 6

Incident 5: Between 1 April 1988 and 24 December 1988 - JG aged 6

Incident 6: Between 17 September 1999 and 30 September 1999 - JG aged 7

Incident 7: Between 17 June 2000 and 1 July 2000 - JG aged 8

Incident 8: On or about 25 December 2000 - JG aged 8

Incident 9: On or about 31 December 2000 - JG aged 8

Incident 10: Between 11 February 2000 and January 2001 – JG aged 9

Incident 11: Between 31 December 2000 and 8 January 2001 – JG aged 8

Incident 12: As with counts 15-18 against KG, this incident occurred between 31 December 2000 and 28 January 2001 - JG aged 8

Incident 13: Between 1 December 2001 and 28 December 2001 - JG aged 9

Incident 14: On or about 25 December 2001 - JG aged 9

Incident 15: 23 August 2002 - JG aged 10

Incident 16: 1 September 2002 - JG aged 10

Incident 17: Between 28 January 2003 and 2 February 23 - JG aged 10

Incidents 18, 19, 20 and 21: Between 14 August 2003 and 30 November 2004 - JG aged between 11 and 12

Incident 22: Between 1 December 2004 and 24 December 2004 - JG aged 12

Incident 23: On or about 12 February 2005 - JG aged 13

Incident 24: Between 1 September 2005 and 30 September 2005 - JG aged 13

Incident 25: Between 3 December 2005 and 31 December 2005 - JG aged 13

Incident 26: Between 31 December 2005 and 31 January 2006 - JG aged 13

Incident 27: Between 9 February 2006 and 25 February 2006 - JG aged 14

Incident 28: Between 1 July 2006 and 31 July 2006 - JG aged 14

Incident 29: Between 1 August 2006 and 1 September 2006 - JG aged 14

Incident 30: Also between 1 August 2006 and 1 September 2006 - JG aged 14

Incident 31: Between 1 December 2006 and 31 December 2006 - JG aged 14

JG’s 2006 diary

Incident 32: Between 11 February 2007 and 1 March 2007 - JG aged 15

Incident 33: Between 2 May 2007 and 31 May 2007 - JG aged 15

Incident 34: Between 1 May 2007 and 1 June 2007 - JG aged 15

Incident 35: Between 20 June 2007 and 21 July 2007 - JG aged 15

JG’s 2007 diary

Incident 36: Between 1 December 2008 and 25 December 2008 - JG aged 16

Incident 37: Mid-January 2009 – JG aged 16

Incident 38: Between 1 March 2009 and 31 March 2009 - JG aged 17

Incident 39: Between 1 July 2009 and 31 July 2009 - JG aged 17

Incident 40: Between 1 August 2009 and 1 September 2009 - JG aged 17

Incident 41: Between 1 September 2009 and 30 September 2009 - JG aged 17

Incident 42: On or about 23 December 2009 between 1 December 2009 - JG aged 17

The Falls Creek incident

Incident 43: Between 1 January 2010 and 31 January 2010 - JG aged 17

Incident 44: 17 January 2011 – JG aged 17

Incident 45: 13 October 2011 – JG aged 17

Evidence of complaint in the case against WG

Tendency evidence

AA’s evidence

The family photographs

Other witnesses

Dr Hoey-Thompson

The case for each of the accused and closing addresses

WG’s evidence

The closing address for WG

KG’s evidence

The closing address for KG

Ground 8 of KG’s conviction appeal (Ground 4 of WG’s conviction appeal)

Ground 4 of WG’s conviction appeal

Consideration

Ground 8 of KG’s conviction appeal: The verdicts of guilty are unreasonable or cannot be supported by the evidence

WG’s sentence appeal

Ground 1

Ground 2

Consideration

KG’s sentence appeal

The grounds of appeal

Ground 1: The sentencing judge erred by neglecting to take into account non-exculpatory duress

Ground 2: The sentencing judge erred in her treatment of the applicant’s prospects of rehabilitation

Ground 3: The sentencing judge failed to take into account, in mitigation, KG’s mental health at the time of sentence

Ground 4: The sentencing judge erred in her treatment of the victim impact statements

Ground 5: The sentence is manifestly excessive

JUDGMENT OF FAGAN J……………………………… ………………………………………………..369

WG’s conviction ground appeal 2 – failure of Crown to call Dr Nittis

WG’s conviction appeal ground 4 – unreasonable verdict

The complainant’s powers of recollection

Improbability of the complainant’s entire narrative

Failure to complain due to fear of WG

Evidence contradicting the complainant’s fear of WG

Conclusion regarding the complainant’s fear of WG

Absence of complaint due to ignorance of wrongdoing

Lack of cross-examination about perceived normality of the abuse

Lack of contact between the complainant and her sisters

Absence of complaint to KG due to perceived complicity

No evidence of detection over the 13 years

Emergence of the complainant’s psychiatric symptoms

A reasonable hypothesis consistent with innocence

Corroboration – WG’s tendency to sexual interest in his daughters

Corroboration – diaries, tools etc

Application of the legal test of an unreasonable verdict

KG’s conviction appeal

WG’s application for leave to appeal against sentence

KG’s application for leave to appeal against sentence

Judgment

1. BATHURST CJ: The applicants WG and KG were indicted on charges involving multiple sexual offences against their daughter JG (the complainant). WG, the father of the complainant, was charged with 73 counts covering the period from 1 April 1997 when the complainant was aged 5, to 13 October 2011 when she was aged 19. The counts may be summarised as follows:

• 16 counts of sexual intercourse with a child under the age of 10 (s 66A Crimes Act 1900 (NSW)).

• One count of aggravated sexual intercourse with a child aged between 10 and 14 under authority (s 66C(2) Crimes Act).

• 42 counts of sexual intercourse without consent under authority (s 61J(1) Crimes Act).

• One count of detain for advantage and inflict actual bodily harm (s 86(2)(b) Crimes Act).

• Seven counts of sexual intercourse with a child aged between 14 and 16 under authority (s 66C(4) Crimes Act).

• One count of sexual intercourse with a child aged between 10 and 16 under authority (s 66C(2) Crimes Act).

• Two counts of indecent assault upon a person under authority (s 61M(1) Crimes Act).

• One count of act of aggravated indecency with a person under age of 16 and under authority (s 61O(1) Crimes Act).

• Two counts of inciting a person under the age of 16 to commit an act of indecency (s 61N(1) Crimes Act).

2. KG, the mother of the complainant, was charged with 16 counts, 12 of which involved sexual offences against the complainant, and four of which involved sexual offences against the complainant’s sisters, AG and CG. The offences may be summarised as follows:

• One count of aiding the commission of the offence of sexual intercourse with a child under 10 years (s 66A Crimes Act).

• One count of sexual intercourse with a child under 10 years (s 66A Crimes Act).

• One count of sexual intercourse without consent (under authority) (s 61J(1) Crimes Act).

• One count of act of indecency towards a child under the age of 10 (s 61O(2) Crimes Act).

• Two counts of indecent assault upon a person under authority (s 61M(1) Crimes Act).

• Seven counts of act of indecency towards a person under the age of 16 under authority (s 61O(1) Crimes Act).

• Two counts of act of indecency with a person under the age of 16 years (s 61N(1) Crimes Act).

• One count of concealing a serious indictable offence (s 316(1) Crimes Act).

3. Following a joint trial, WG was found guilty of all the 73 counts charged against him. KG was acquitted of three of the acts of indecency charges, one of which was alleged to be against AG, one against CG and one against the complainant. She was found guilty on all other charges.

4. On 27 and 28 October 2016, WG was sentenced to an aggregate sentence of 48 years with a non-parole period of 36 years, whilst KG was sentenced to an aggregate sentence of 16 years with a non-parole period of 11 years.

5. WG and KG have both sought leave to appeal against their convictions and sentence.

The Crown case at trial

The complainant’s evidence

6. The complainant gave evidence that she was born on 10 February 1992 and that she had two older sisters, the elder of which was AG and the other CG. She also stated she had a younger brother, JG.

7. She gave evidence that when she was about two and a half years old, the family moved to a property in an area near Lismore called The Channon. For convenience, I will adopt the approach taken at the trial, and refer to the property as The Channon. The complainant said that her parents were teachers and that they both coached running as well. She stated that she and her sisters were involved in running, and that she competed at a state and national level and, on one occasion, overseas.

8. The complainant stated that just before she turned 11 the family moved to the Gold Coast, but usually returned to The Channon over the weekend. She said she recalled that her parents separated for a period of time around 2000 or 2001, at which time the complainant lived with her mother.

(i)      Counts 1, 2 and 3

9. The complainant gave evidence that when she was five years of age she remembered her mother becoming pregnant with her younger brother JG. She stated that when JG was born, KG stayed in Brisbane, probably for a few months. She gave evidence that she recalled her father was at Uluru at the time. She said that on his return, on one occasion she was in her bed awake when WG came into the bedroom without clothes on. She said he lifted her nightie up over her head, touched the outside of her vagina and then put one finger in her vagina (Count 1). She stated that he got on top of her and she felt something being forced into her vagina. She said that at the time she did not know what it was, but she now knew it was WG’s penis (Count 2). She stated he then removed his penis and forced his penis into her mouth (Count 3). She said that she thought at the time that he was weeing in her mouth, but that she now knew that he had ejaculated. She felt severe pain in her vagina and lower stomach and a ripping feeling.

10. The complainant stated that she did not tell anyone what her father had done.

11. In cross-examination the complainant agreed that KG was in hospital with JG for about three months following the latter’s birth. She also agreed that WG was working at Uluru in Central Australia at the time JG was born. However, the complainant rejected the suggestion that whilst her mother was at the hospital for the three months she never stayed overnight at The Channon.

12. It was suggested to her that from 1 April to 7 April, around the time of JG’s birth, she stayed at Melville House, a “bed and breakfast” at East Lismore. She said she remembered KG dropping them off there, but did not remember WG picking her and her sisters up from those premises on 7 April.

13. It was put to the complainant that on 7 April she was driven to Brisbane, where she saw her mother. She said she remembered going up and staying at “Ronald McDonald or somewhere like that”, but that she was not up there for the whole three months.

(ii)      Count 4

14. The complainant stated that the incident the subject of Count 4 took place after her brother was born, but definitely before his first Christmas. She stated that she recalled coming home from school and that her mother, KG, was not at home. She said she went into the garden to help WG and that she got into trouble for something. She said that WG grabbed her by the hair and dragged her along the ground to the creek, and that when they got to the creek he put her head under the water and held it there. She said the next thing she remembered was going back to the house with WG, and WG telling her to take her clothes off because they were wet. She said he told her to dry herself, and remembered following him into her parents’ bedroom where WG took his clothes off. She said he lay on his bed, and that he told her to rub his groin area and that she did so. She said that after a little while, WG grabbed her hands, put them on his penis, told her to put it in her mouth and grabbed her head. She said that his penis went into her mouth, and that she remembered that he seemed angry and feeling as though she was choking. She said WG got even angrier, and grabbed her by the hair and threw her off the bed onto the ground and told her to go and put some clothes on. She said she did what she was told, and remembered her mother coming back from a run later and being happy that she was at home. She said she thought WG was angry because she did not please him.

14. The complainant said that the creek she referred to was on the property away from the house. She was shown a rough drawing of the property, which she said was consistent with where things were on the property. In particular, she said the position of the house and garage was consistent with their actual locations. She also stated that the diagram showed roughly where the creek ran through the property, and that the pathways leading from the house towards the creek area and the orchard were consistent with her memory of where the pathways were, with the exception that the path from the house to the creek was straight.

15. The complainant was also referred to an item on the diagram labelled “chook pen”. She said she referred to it as “the shed”. She stated that its location as shown on the diagram was roughly consistent with its position in relation to the house.

16. It was suggested to the complainant in cross-examination that WG never worked in the garden during the week but only on weekends. She agreed that WG was a workaholic, but said it was not true that he never came home from work until after she had had dinner. She rejected the proposition that WG was never at home when she came home from school.

(iii)      Count 5

18. The complainant said she recalled a further incident when she was five but before she had turned six. She remembered that it was school holidays and that she was at home with WG and got into trouble for something. She said that WG grabbed her by the hair and arm and dragged her down to the shed. She said the shed was approximately 50 metres from the house in a straight line, but a lot longer going along a path. She stated that the shed was made out of tin.

19. The complainant said that when she and her father got to the shed he opened the shed door and dragged her in. She said she remembered being on her knees and her father pulling his shorts down. She said she knew what she had to do. She said she did not want to get into any more trouble, so she put his penis into her mouth and continued to suck on it, and her father started to make noises. She said she felt him ejaculate, thinking he was weeing into her mouth, and that she felt sick like she was choking and could not breath properly. She said he took his penis out of her mouth and pushed her to the back wall of the shed. She said that once he was gone, she spat out what was in her mouth onto the ground in the shed. She stated that on that day she remembered that WG was wearing red socks.

20. The complainant said that she stayed in the shed for the rest of that day and that night. She said that when it was light again, WG came back into the shed and took her back up to the house. She said that when she got there she saw KG who was making lunch, but that nothing was said about where she had been.

21. Six photographs of the shed taken in 2012 were tendered in evidence (Exhibit 2). The complainant said that the photographs did not show the shed as she remembered it in 1997 and 1998, in that there was no wood in it, and the chicken wire depicted in the photographs was not there, but that the shed was fully covered. In that context, she referred to the photograph in Exhibit 2 described as photograph 23, stating that at the time of the incident there were no holes in the chicken wire other than those that formed part of the chicken wire.

22. The complainant was also referred to photograph 27, and stated that at the time of the incident, the door there depicted was attached to the entrance.

23. The complainant was asked by senior counsel for KG whether when she said she saw her mother in the kitchen if there anything to indicate that KG saw her. She said there was, because she walked through the kitchen and KG looked at her, but that there were no words spoken. She said that WG was there and KG did not talk much in front of him.

24. It was put to the complainant by senior counsel for KG that there was never an occasion when she left the house for the night when KG was in the house, saw her, and did not ask her where she had been. The complainant responded that there were many occasions when that happened.

(iv)      Count 6

25. The complainant gave evidence of a further incident with her father in 1998 after she had turned six. She said it occurred after her brother’s first birthday and before Christmas 1998. She said she was not sure if KG was living at The Channon at the time.

26. The complainant stated that she remembered being out in the garden with WG, and that he took her down to the creek and told her to stand in the water with all her clothes on. She stated she remembered the water being freezing. She said she went back up to the shed with WG and took all her clothes off because they were wet. She said she could not remember if WG told her to take them off, but she remembered that he took his shorts off as well and that she knew what that meant. She said, “I knew what I had to do”.

27. The complainant said she went up to WG, held his penis in her hand and put it in her mouth and sucked on it. She kept doing that until he ejaculated in her mouth. She said he took his penis out, and that the next thing she could remember was him getting some rope that was in the shed and tying her wrists together, and that after he did that he left the shed.

28. The complainant said that she remained in the shed, and that she remembered it went dark “three times”. She said that WG came back after it had been dark once, and brought some water down to her in a cup and let her have some. She remembered needing to go to the toilet but she was just too scared to ask WG, and she could not hold on. She said that after he left, she ended up having to go to the toilet in the shed. She said that later on that day, WG came back and saw that she had gone to the toilet and slapped her across the face with one of his hands. She said that after it had been dark three times, WG came in and untied her and she went back to the house with him. She said she remembered being extremely weak and feeling very sick but she could remember going to school that day.

29. The complainant said that she remained naked the whole time she was in the shed.

(v)      Count 7

30. The complainant said that in 1998 when she was six years old she remembered going to bed and waking up with WG on top of her. She said she remembered going to bed wearing a long pyjama top and long pyjama pants, but that the pyjama pants were off. She said she recalled WG forcing his penis into her vagina. She said she remembered feeling a lot of pain to her lower stomach and to her vagina, “a horrible ripping feeling”. She stated that WG kept moving back and forth so that his penis was going in and out “with my vagina”. She said she could remember that his movement got faster, and that she could feel his breathing on her neck and face.

31. The complainant stated she remembered that when she woke up there was blood between her legs and on the sheets, and that she could hardly stand up because of the pain in her stomach.

32. It was put to her in cross-examination on Counts 6 and 7 that her father was overseas from 26 October 1998 to 12 December 1998. She said that was possible, because she remembered the incidents and that it was cold, and that it was not cold in October.

(vi)      Counts 8 and 9

33. The complainant said that in 1999 when she was seven years old she competed in a 100 metre running event at Olympic Park in Sydney. She said this was the first time she had competed at a state level. She said she travelled to Sydney with her sisters, who also competed.

34. The complainant said that she competed in the heats and did not think she had made the final, so she had some hot chips to eat, which she said she was not usually allowed to eat. However, she was called for the final and she said she came fourth.

35. The complainant said when she and her sisters returned to Lismore her mother picked them up. She stated that at that time WG was not at home, but that when he came home he was really angry at all of them. She said that she remembered KG being really upset and crying.

36. She stated that in the afternoon WG took her away from the house, up the hill close to the house and down towards the creek, and that when they got to the rainforest part he pushed her over and started kicking her back and head. She stated she remembered that he dragged her by the hair all the way down to the creek, and stuck her head under the water and kept holding it under. She said she remembered everything “getting really tight”. She stated he held her head under the water for a very long time, and that he lifted her head back out and stuck it back under a few times. She remembered going back to the house and KG asking why she was all wet, and that she said she had gone for a swim.

37. She remembered that WG came to her room that evening. She remembered that she pretended to be asleep and felt WG getting on top of her. She said she opened her eyes and she could see WG on top of her. She said he spread her legs apart and placed his head between her legs, and that she could feel his tongue on her vagina (Count 8). She said she did not feel any pain. She said he then moved further up so that his body was over the top of hers, that she then felt him pushing his penis into her vagina and that he kept pushing in and out (Count 9). She said he was much quieter than he usually was.

38. In answer to further questioning she said that he was licking the outside of her vagina.

39. In cross-examination, it was put to the complainant that she had said in chief that these incidents occurred a few days after 17 September 1999. It was suggested to her that her father was away camping between 17 September 1999 and 20 September 1999, and from 26 September 1999 to 30 September 1999. She said she remembered him not being at home when she returned from Sydney (see [35] above), and then remembered him being back at home and the incidents happening. She said she could not remember anything after the incident and that it was possible he went camping again.

40. In cross-examination by senior counsel for KG it was put to her that it was not true she was not allowed hot chips generally.

41. It was also put to her that she was incorrect in saying that KG was really upset and crying. She said that there had been many occasions when that occurred, stating that on one occasion there was a knife involved.

(vii)      Count 10

42. The complainant stated that in the year 2000 she participated in an event at Eastern Creek Raceway. She produced a qualifying certificate dated 16 June 2000 in respect of that event.

43. The complainant stated that either the night before or a few nights before she went down to the State Championships Cross Country at Eastern Creek, she was in her bedroom when she heard her father coming down to her room and enter her room, shutting the bedroom door. She said she took her own pyjama pants and long pyjama top off so that she was fully naked. She said that WG was naked as well. She said her sheets were pushed all the way back to the end of the bed, and that WG got on top of her and that she had already separated her legs for him. She stated that she automatically took all her pyjamas off when he came in because “I thought I knew what he was coming in to do and that’s why I was lying down there as well with my legs separated”. She said he forced his penis up into her vagina. She said she felt him ejaculating (or back then, thought he weed) inside her. She said he left the bedroom, leaving the door open.

44. The complainant stated that either the next day or within the next few days, she travelled down to Sydney with her sisters and WG, and competed in a race. She said she remembered feeling quite sick in the stomach and her legs feeling sore, and that she came 32^nd. She stated that once she found WG he took her away from everyone else, put her on the ground, and started to kick her in her stomach. She said, “I remember him calling me weak”. She remembered that when she returned home with her father and her sisters WG told her to stay in the car, then pulled her down towards the shed. She stated that when they got to the shed WG pushed her into it and shut the shed door. She stated that she stayed in there for the night. She said he came back when it was light again but that he was still very angry, and she remembered promising him that she would never perform that badly again.

45. In cross-examination by counsel for WG, the complainant said she felt sick in the stomach both during and after the incident occurred. She said that her legs were really sore around her groin area.

46. The complainant agreed that a few days after the incident she ran in a race and finished 32^nd. She said that during the race she was very sore and that thinking back on it, she believed she ran badly because of the condition she was in.

(viii)      Counts 11 and 12

47. The incidents the subject of these counts were said to have taken place in the year 2000 when the complainant was eight years old. The complainant had an aunt (PB) who lived on the Gold Coast. The complainant travelled to her aunt’s house on Christmas Eve with her mother, sisters and brother. WG came later on.

48. The complainant said that after she went to bed she woke up at some point and went to the kitchen to get a drink of water. She said her father was lying on the couch and that he told her to come over to him. She said that WG had a blanket over him which he lifted up, and that she “automatically popped under the blanket”, at which point WG pulled his penis out of his “jocks”. She said that she put her mouth around his penis and sucked on it until he ejaculated. She said she remembered not wanting to swallow what was in her mouth but she was also scared not to go straight back to bed, so she swallowed it and went back to bed.

49. The complainant stated that the next day she became really upset because she wanted to stay with her mother. She stated that she remembered getting really upset and crying, something she was not allowed to do. She stated that WG told her she had to go with him, her two sisters and brother up to “O’Reilly’s” for the day. O’Reilly’s was a mountain at the back of the Gold Coast hinterland. She said that they went for a walk and that WG was quite angry. She said he pulled her hair and whacked her across the face. She said that there was a big storm, and that the next thing she remembered was travelling back to The Channon.

50. The complainant stated that when she returned to The Channon she wanted to go to bed, but that WG came down and told her to go with him. She said that they headed towards the shed and that she kept saying she was sorry to him because of the way she had acted. She said that when they reached the shed, WG took her to the back corner of the shed and tied or wrapped something around her wrists and arms, although she could not see what it was. She said she could remember something pushed up against her that did not let her move. She said that WG left the shed and that she stayed there for the night. She said that when it was light she could remember that she had rope around her wrists, which was the same rope that had been used before, and that there was also barbed wire across her.

51. The complainant said that when it had been light for a bit, WG came back and removed the barbed wire, and forced her to eat little red hot chillies which were on the property. She said she had to chew them and swallow them, and that they were extremely hot. She said she remembered her mouth burning, finding it hard to breathe and WG threatening her. In that context she said he made the following threat:

“If you ever embarrass me like that again I’ll lock you up in here forever and let you rot. Do you understand?”

She said she was absolutely terrified that she was going to die, and that he was going to leave her in there to die.

52. She stated that he then left the shed but came back not long after with a machete and some tools. She remembered that he put the tools on the ground and that she saw a tool which was “sort of an L-shaped tool” made out of metal, which had a “rectangular sort of shaped thing on the end of it”. She said he also had some sort of spanner made out of metal, and metal scissors which were quite old and rusty. She stated that after he put her on the ground, he came over and hit her, and after untying her wrists, took all her clothes off and tied her back up.

53. She stated that she remembered WG saying to her that all he had ever tried to do was be a good father, and that after he tied her back up he came over to her with the tool and she felt him force the tool up into her vagina (Count 11). She stated it was the worst pain at that point that she had felt. She stated that he then picked up the scissors and she felt what she thought was him cutting her vagina (Count 12).

54. She said that thereafter WG left the shed and that she remembered seeing a lot of blood. She remembered waking up later in the day in a lot of pain and still bleeding. She then gave the following evidence:

“Q. All right. Do you remember what happened after that?

A. Ah dad – the shed door opened and dad came in, umm, and I remember he came and untied me and he, umm – got me – he told me to put my clothes back on, which I did, and I remember, umm, seeing blood. Still – I was still bleeding and, umm, he told me to follow him so I followed him out of the shed and down, umm, to the creek where he told me to wash the blood off, umm, so I got undressed again and I hopped into the creek and I remember stinging, awful stinging pain and I then went back up to the house with dad after that and I remember, umm, going and getting changed and I had blood on my underwear so I kept them in my room.

Q. Where did you keep them in your room?

A. I’m not sure, I just had them on the ground in the room. I just remember picking them up a few days later and finding them and getting in my room and picking them up with some paper that I had written stuff on and burying them. Umm.

Q. When you say you buried them, do you know where you buried them?

A. Yes.

Q. And where was that in relation to what we’ve seen on that map, the house, the shed, the garage?

A. It was down towards the – the – in the rainforest part. I went down there and, umm, moved some rocks and I dug a bit of a hole and put them in there and put some rocks back over them.

Q. And you say that you buried them with some pieces of paper that you had written on, do you remember what you wrote on the pieces of paper?

A. Just – they were just bits of artwork that I had done and some writing and the way that dad made me feel and things that were happening to me and I, umm, was too scared that he might find them or someone else might find them so I used to bury that sort of stuff, or as much as I could.”

55. There was tendered in evidence against WG a drawing made by the complainant of the L-shaped tool, the metal spanner and pair of scissors she referred to in her evidence, which were labelled “A”, “B” and “C” respectively, and a photograph of her and her brother taken at O’Reilly’s in 2000 at Christmas time. These items were only tendered against WG.

56. A DVD prepared in 2012 which showed The Channon was also tendered. By reference to the DVD, the complainant identified various parts of the property that she had referred to in her evidence, including the location of the shed and the location of her bedroom.

57. In cross-examination, the complainant agreed that at the time she was at PB’s place, her parents had separated and she lived with her mother and sisters at Goonellabah but visited WG about once a fortnight.

58. She agreed that it was possible that at the time she was at PB’s house she had not seen her father for about six weeks.

59. It was suggested to her that at that time she had not had much to do with her father, but she said she saw him quite a bit. It was also suggested to her that on Christmas day she preferred to stay and play with her cousin rather than go to O’Reilly’s with WG. She said she wanted to be safe and if that meant playing with her cousin then yes, but that she wanted to be where KG was.

55. It was suggested to the complainant that after the outing at O’Reilly’s she did not go back to The Channon that evening. She said she remembered being at O’Reilly’s and that the next thing she could remember was being at The Channon and that it was dark.

56. She agreed that WG was not living at The Channon during this period of time. It was put to her that WG was living at Melville House, and she said he went and stayed there for some time but that they “definitely did go back to The Channon”.

57. It was suggested to her that following the O’Reilly’s outing, WG took her and her sisters to Melville House and not The Channon, and she said that was incorrect and that it was definitely The Channon.

58. The complainant agreed that Helen Opie was the owner of Melville House, and that her aunt’s property was located between Melville House and O’Reilly’s.

59. The complainant agreed with senior counsel for KG that there was a game in which athletes and CG would put chillies that were grown at The Channon into their mouths and see how long they could hang on to them. She said it was WG’s game and that it was a “toughness game”. She said that the way WG would describe it was “that if you can handle this pain, you know, then you can run faster, you can be better”.

(ix)      Counts 13 and 14

65. These counts related to incidents which were said to have occurred on New Year’s Eve, 31 December 2000. Count 13 was the subject of a charge against KG whilst Count 14 the subject of a charge against WG.

66. The complainant stated that on New Year’s Eve 2000, she was at home at The Channon with WG, her sisters AG and CG and her brother JG. She stated that KG was not at home. She stated that her parents were separated at the time. She said that WG went looking for KG and took the children in the car with him. She said they drove to Lennox Head but did not find KG. WG was very angry because he could not find her.

67. The complainant stated that when they returned home WG told the children to go straight to bed. She said she went to bed but woke up with WG on top of her, holding her down. She stated that he had his hands on her chest and that she remembered she was not wearing the nightie that she had on when she went to bed. She stated that WG pushed his penis into her vagina as he held her down, and that he moved back and forth so that his penis went in and out of her vagina (Count 14). She remembered that he started to make noises. She recalled that he said to her, “You should be enjoying this. Make noises like I am”. She said she started making noises because she was scared of what he might do, and because she knew that when she pleased him he was not as angry as he usually was.

68. The complainant said that WG ejaculated inside her and pulled his penis out, and that she remembered that hurt her. She stated that after he left her bedroom she remembered him having a shower. She said she just stayed in bed and fell asleep later on.

69. The complainant stated that when she was making noises and WG had his penis in her vagina, it reminded her of something she had been taught by KG. She said what she was referring to was taught on a fair few occasions, but she remembered one specific occasion close to this incident, before Christmas 2000.

70. In that context, the complainant said she recalled a conversation with KG in the complainant’s room. She remembered that it was after coming back from the pub and that KG had had quite a bit to drink. The complainant said she knew that because she could “smell it on her”, that KG was slurring, and that KG had a particular way about her when she drank.

71. The complainant said she remembered that she and KG were talking generally about sex. She said that KG said to her, “It makes it better if you make noises”, and that “it would make it better for you and dad”. This was the subject of Count 13.

72. The complainant also gave evidence that she remembered waking up on New Year’s Day with blood on her sheets, and that she took them to the laundry and put them in the washing machine. She said that WG came in and that she got in trouble for not putting other things in with the sheets. She said that after the sheets had been washed, she put them in the dryer, and WG again came in and was angry because she put the sheets in the dryer, and stated she had no right to do that. She stated that WG grabbed her by the arm and pulled her out of the house down to the creek and stuck her head under the water.

73. In that context, the complainant said there were other times apart from that when WG would be violent to her. She stated that she remembered this occurring from a very early age to her, her brother, her sisters and her mother.

74. It was put to the complainant in cross-examination that on New Year’s Eve in 2000, WG was in Brisbane in the company of a lady called Michelle Fountain. She said she had never heard that name. She agreed it was possible that the following day WG attended the Accident and Emergency Section at the Tweed Heads Hospital for a suspected strained ankle.

75. It was put to her that WG was not driving around that particular day at Lennox Head. She said it was definitely New Year’s Eve.

76. The complainant said that WG was not living permanently at Melville House at the time. She agreed that a person named David, who was her swimming coach, was staying at The Channon during this period and that WG was not there. However, she denied that David stayed the whole time whilst her parents were separated.

77. The complainant denied that she went to Lennox Head to celebrate New Year’s Eve rather than to look for KG. She also denied that she never saw her father between 26 December 2000 and 20 January 2001. It was put to her that she saw WG for four hours between 4 pm and 8 pm on 20 January 2001, and she said she could not remember that.

78. It was also put to her that WG never scolded her for using the washing machine or the dryer and she denied this.

(x)      Counts 15, 16, 17 and 18

79. These counts were all against KG. Count 15 alleged an act of indecency against the complainant, Count 16 an act of indecency against AG, Count 17 an act of indecency against CG and Count 18 a charge of having sexual intercourse with the complainant.

80. The complainant recalled that in January 2001 she was at home on school holidays with her mother and sisters. She said she recalled coming home to The Channon from a pub and going into AG’s room. She said that the whole family had been at the pub.

81. She said whilst she and her sisters were in AG’s room, KG was telling them how to touch themselves in a sexual way. She stated that she remembered KG demonstrating and saying “This is how you pleasure yourself”. She stated that KG was wearing a nightie and had no underwear on. She said KG was standing and that she and her sisters were all sitting down.

82. The complainant stated that the demonstration involved KG lifting up her nightie and touching herself on the vagina. She stated she now knew that KG was touching her clitoris. She said that KG said to them that touching there would feel good. She stated that KG also used one of her fingers and put it up into her vagina. She remembered that after that, KG and AG had a conversation about orgasms, but that she did not know what that meant. She said she remembered CG butting in and saying she had given herself one before.

83. The complainant said that later that evening she saw KG in her bedroom. She stated she remembered wanting to talk to her about whether she would have made the noises properly. She said she remembered KG saying it would have made it better for dad and asking the complainant if it made it better for her. She remembered telling KG, “I didn’t like it”. She stated KG then said she would show her how she was meant to feel.

84. The complainant then gave this evidence:

“I was wearing a nightie and she was sitting on my bed with me and she touched the outside of my vagina and I didn’t know but I now know she was touching my clitoris and she then used one of her fingers and put it up my vagina and I remember her asking me if I liked it, if I felt good, and I remember saying, ‘Yes’, because I just thought that – I thought that what she was doing was to help me and I didn’t know that it was wrong. I didn’t know. Sorry.”

(xi)      Count 19

85. The complainant stated that on the same night that the incident the subject of Count 18 was said to have occurred, WG came to her bedroom, up to her bed, separated her legs, got on top of her and forced his penis into her vagina. The complainant said she remembered being very upset and started to cry, “which is bad”. She said it was bad because WG got really angry and told her to shut up, and threatened her with the shed. She stated that WG took his penis out of her vagina and got off her, pulled her out of the bed onto the ground and down the corridor of the house. She said they went through the kitchen and that she remembered him getting the torch out of the pantry, and that he kept pulling her out of the house by her hair. The complainant said that WG pulled her down to the creek. She stated she remembered it hurting a lot and saying sorry to him, because she had not been down to the creek at night and was terrified. She stated that she remembered WG putting the torch on the rocks and pushing her into the water. She remembered trying to get onto the rocks and hold herself up but slipping and WG coming and grabbing her head, sticking it under the water and holding it there for a long time. She stated she remembered that after he did that a few times he pulled her out of the water and they started heading up towards the house, but that they turned off towards the shed. She remembered that when she got to the shed WG opened the shed door and pushed her into it.

86. The complainant said she remembered WG shutting the door and locking it with what she thought was a padlock. She said she was in there that night and that the next day when it was light, WG came back to the shed and she went back up to the house with him, seeing KG. She said it must have been morning because she remembered the smell of coffee in the house and she remembered KG gave her a hug in the lounge room but that they did not talk about what happened the night before or anything like that.

87. It was suggested to the complainant in cross-examination that WG was overseas from 21 January 2001 to 29 October 2001. She said her evidence was that the incident occurred in the school holidays in January. She did not recall the specific date.

88. It was put to the complainant in cross-examination that there was no padlock on the shed door at any time, and she said there was. It was also suggested that there was no door on the shed, and she said that there was a door on the shed.

89. The complainant was referred to her statement to the police where she had said that KG spoke to her about sexual matters from when she was about eight years old. She said there used to be sex education at school, but that she used to shut down a lot and block a lot out. She said her focus was on making sure she could pleasure WG well.

(xii)      Count 20

90. The complainant recalled a time in late December 2001 when WG was supposed to be going away but did not go. She remembered that she was looking forward to him being away. She said that at the time she and her family were at The Channon, and that her friend, Fiona, was also there.

91. The complainant stated she remembered that she and Fiona were playing in her bedroom and hiding in her cupboard. She said she remembered WG calling her name but they did not respond and stayed in the cupboard. She said nothing happened until after Fiona left, but she remembered WG being really angry at her.

92. The complainant said that after Fiona left WG took her towards another section of the creek which was “the big creek, down a steep hill”, grabbed hold of her and threw her to the ground. She stated she could remember his hands around her neck and his hands tightening so that she could not breathe. She said he then let go and pulled her by the hair along the path that followed the creek and that she remembered him holding her down with one of his knees on her chest. She said she remembered jumping ants biting her. The complainant stated that she thought WG might have been bitten as well, because he suddenly got up and went down to the creek, and put his foot in the creek.

93. The complainant said that when WG came out of the water he said, “Let’s go”, and that she followed WG up the steep hill into the shed. Once they were in there she recalled WG pulling his shorts down and at the same time telling her to “hurry up”. She said she went to WG, held his penis in one of her hands, put it in her mouth, and sucked on it. She stated that after a while she thought she was doing something wrong because she had not pleased him and had not made him ejaculate. She stated that he pulled his penis out of her mouth, pulled his shorts back up and walked out of the shed and told her to follow him. She said that after that they went down to a section of the property near the creek and did some “work stuff in the garden”.

(xiii)      Count 21

94. On 24 December 2001 the complainant’s grandparents, Oma and Opa, came to The Channon for Christmas. She recalled that they were there when she went to bed on Christmas Eve. She stated she remembered waking up in the morning and that her father was getting on to her bed. She said it was morning time and light.

95. The complainant said that WG was on top of her and forced his penis into her vagina, and kept forcing it in and out of her vagina. She said he was a lot quicker than he usually was and she remembered him being quiet as well. She was asked whether she knew whether or not he had ejaculated and she said that he had, and that she felt the same warm wet sensation.

96. The complainant said that after WG withdrew his penis, he got off her and picked up a towel which she said was unusual for her father, opened her bedroom door and left it open.

(xiv)      Counts 22 and 23

97. The complainant said she recalled participating in a cross country event at a national level on 23 August 2002. She said that she was 10 years old at the time. She was shown a programme referring to that event.

98. The complainant said she travelled to Sydney for the event with AG, KG and WG. She said that AG also competed. The complainant said that after the opening ceremony they went back to the hotel, and KG went and got some dinner. She said she remembered WG giving her a massage on the bed and her giving him one afterwards.

99. The complainant said that when giving the massage WG was wearing a t-shirt and underpants, and that she was on the bed lying on her stomach. WG had one of his hands inside her underpants touching the outside of her vagina, and the other on her hip area and buttocks area, but he did not massage her for very long (Count 22).

100. The complainant said that when she got up she noticed WG was sitting on the bed, and he told her to give him a massage. She said that she could see his shorts were down a bit and his penis was out and that it was erect, and that she rubbed up and down WG’s penis (Count 23). She said she only did it for a short time and then heard someone at the door at the front of the hotel room. She said that WG said, “Get up”, and at the same time he pulled his shorts up and KG walked into the room with dinner.

101. She said she competed in the cross country event the next day.

102. The complainant said that WG gave her massages when she started to get serious about running at about the age of nine. She said she would get massages two or three times a week. She stated that her sisters also got massages. She described the way they occurred. If she or her sisters had underwear on, one of WG’s hands would be underneath the underwear apparently supporting that leg, and the other hand would be massaging the hip flexor or the buttocks area, and then changing to the other side for the other leg. She said that sometimes she would be naked.

103. The complainant said she also massaged WG. She said that when that occurred usually he would be on his back, and that he would get her (or his other daughters) to massage his groin area, sometimes without a towel but sometimes with a towel over his groin area, depending on where they were. She stated that by “groin area” she meant his penis and the surrounding areas.

104. The complainant stated that she recalled one particular time this occurred at her grandparents’ place at Tanglewood. She said at that time she was maybe 10 or 11. She stated she remembered she was in running gear. She said there were two levels in her grandparents’ house and that she, her sisters and WG were upstairs. She said that WG was lying down with a towel over his groin area and that she, AG and CG were around him, and he was getting them to massage his lower stomach, his groin and under the towel, and she remembered that she was touching his penis.

105. The complainant stated that she recalled on one occasion CG had a massage and thereafter got up and spoke to KG. She stated she remembered CG coming to KG quite upset and saying something like, “his penis was out of his shorts”, and that her hand was touching it. She stated she recalled KG saying that it was normal in a situation like that for a man to get an erection. The complainant said that at the time when she was receiving massages from WG, and he was touching her or she was touching him, she thought it was normal.

106. It was put to the complainant that WG massaged her only a few times and it only occurred when she was 13 and 14 years old. She said he did massage her in that period but that he also massaged her when she was much younger as well. It was put to her that she was never naked during any massage and she denied this. It was also suggested to her that every time WG massaged her one or both of her sisters were in the same room and she agreed that there were times when AG and CG were there as well. However she denied that one or both of her sisters were there every time WG gave her a massage.

107. She rejected the proposition that WG never massaged her at her grandparents’ place.

(xv)      Count 24

108. The complainant said that on Father’s Day 2002 she brought WG coffee in bed. She said that when she brought him a second coffee she thought she would do something for him for Father’s Day, and she hopped up onto the bed. She said WG had no clothes on and she started to massage his groin area. She stated she remembered his penis becoming erect and that once it did, she rubbed it with her hands and then put it in her mouth and sucked on it until he ejaculated in her mouth. She said she then got off him and that he was talking to her, but the only thing she could remember him saying was “good girl”. She said that was all she wanted to hear from him.

109. It was put to the complainant in cross-examination that when she was around ten years old, she did not take coffee into her father’s bedroom. She denied this proposition.

(xvi)      Count 25

110. Count 25 was a charge against KG.

111. The complainant said that during the school holidays just before starting at a new school, she recalled a conversation with KG in the complainant’s bedroom. She said it was a general conversation about sex and those sorts of things, and that KG spoke about how to “turn them on”, and how to use her tongue in a circular motion on the top of the penis. She said that KG, in saying “turn them on”, was referring to WG. She also said that KG showed her how to do it, demonstrating with her tongue. She said that KG stuck her tongue out and showed her the circular motion as to what to do on top of a penis.

(xvii)      Counts 26, 27, 28 and 29

112. The complainant gave evidence that she recalled the first day she attended a new school. She said she was still 10 years of age. She said that the morning of the first day of school she was at her grandparents’ place and was driven up to the school for the day. She said that after school she met WG and KG in the car park and remembered that she had spilled something on her school dress, and that WG was angry with her because the dress was new and quite expensive. She said WG told her that she would be getting the shed when they got back home. She said that she knew by that, he meant back to The Channon at the end of the school week.

Corroboration – WG’s tendency to sexual interest in his daughters

1686. Evidence from which the jury could have concluded that WG was sexually interested in his daughters and that he had a tendency to act upon that sexual interest included the sexualised photographs of the three girls and evidence of the circumstances in which they were taken: see [394]-[407] in the judgment of the Chief Justice. It also included the evidence of AG.

1687. AG said that WG routinely massaged her in a manner that was indecent and involved sexual assault. Massages occurred “very frequently” from when AG was aged 13 (in 2001, when the complainant was 9) until about 2005. AG gave this evidence in chief:

A   [The frequency of WG massaging] would change. Like it would be maybe sometimes once a week, twice a week, it’s a constant memory in my life. It was constant.

Q   [W]hat parts of the body would he massage?

A   Around my bottom area and the vagina area.

[…]

A   The finger wouldn’t always enter the vagina but the hands would always be close to or touching the outskirts of the area.

1688. In cross examination AG said:

I don’t recall ever confronting my father about the massages being inappropriate.

[…]

I don’t recall ever being brave enough to speak to my father about it, I don’t recall.

1689. AG gave evidence of a particular massage in the living room of the family home when WG “trailed his finger inside” her vagina. She said that WG frequently required her to massage him in a manner that involved indecency, which she described as follows:

Q   Now you said something about massaging him, your father?

A   That followed after my massage where he would hop on the table completely naked with a small towel over his area.

1690. AG said that her father “would always complain about pain around his abdominal area” and that she would always be required to massage close to his penis, resulting in her touching it. She described one occasion when he ejaculated while this was occurring and said:

I would brush against it because it’s - in this incident I can’t recall exactly if I touched his penis, but it was always there and I’d always have to massage in the area.

1691. In cross-examination AG said that the manner in which her father asked her to massage him had no therapeutic value. She gave the following answers:

The area I was massaging my father, every time I massaged him is not an area that I think is needed to be attended to after a running race.

[…]

I never massaged his glutes from my recollection, I massaged his stomach area with an erect penis the whole time.

1692. AG gave evidence of the three sisters massaging WG in the loft of her grandmother’s home at Tanglewood, apparently being the same incident as described by the complainant (see [104] in the Chief Justice’s judgment) and by their grandmother (see [466]). The complainant said this occurred in 2002 or 2003 and the grandmother attributed it to either 2001 or 2002. AG said she could not recall how they came to be massaging WG “around his penis and stomach area” on this occasion because “it was so frequent that we often would massage him”.

1693. WG’s responses to AG’s accusations about indecent massaging in the recorded phone call of 23 February 2012 (see [594]-[595] in the Chief Justice’s judgment) were implicit admissions. WG’s attempts in oral evidence to place a different interpretation on the phone conversation were implausible and could have been regarded by the jury as discrediting him generally.

1694. Ms Clarke, whose evidence has been referred to at [1652] and [1653] above, observed that WG took his daughters away separately to massage them when she stayed at The Channon. She did not witness the massages.

1695. AG said that on an occasion in the period 2004 to 2005 she wanted to see whether CG was being touched by her father in the same way as he had touched AG. AG secretly observed CG being massaged and saw that her vagina was exposed and WG’s hands “were both there”. AG was “furious” and went to find her mother and tell her what was happening. There was no clear reaction from KG and she “seemed completely absent”. Despite AG’s indignation she was not prepared to confront WG directly about it. AG said, “I would be way too scared”.

1696. WG travelled with AG to an athletics meeting at Campbelltown in early 2004 (at close to 16 years of age). AG said that while they were staying in a hotel after her race, her father massaged her, naked, and caused her to have an orgasm. She said that by this time she was beginning to feel “really uncomfortable” with her father’s massaging. She did not want WG touching her anymore and she was aware “it wasn’t the right thing”. On a date that appears to have been in 2005, while AG and her father were staying with her grandmother, he touched her breasts during a purported massage. AG became angry and ran into her grandmother’s room. The grandmother gave evidence substantially corroborating this event (see [472] in the Chief Justice’s judgment).

1697. AG said that this was the last time WG massaged her. She described a subsequent occasion when she and her father were living with the West family on the Gold Coast while she was completing her second-last school year (2005) at St Andrew’s Lutheran College, Burleigh Heads. AG refused to be massaged by her father. He became extremely angry, took her into the bathroom and struck her four times across the face, breaking her nose.

1698. On the basis of AG’s evidence, if the jury accepted it, there was reason to find it not improbable that WG would have similarly touched the complainant in an indecent manner, for example as alleged in count 22, and/or that he would have caused her to touch his penis, as alleged in count 23. There is nothing inherently improbable about offences of that nature having been committed against the complainant. The conduct of WG described by AG was relatively subtle, secretive, carried out under pretext and it involved no force or cruelty. Depraved as this touching may have been, it was purely sexual rather than gratuitously violent or sadistic. The sexual abuse of AG was in marked contrast to the acts described by the complainant of inserting tools, subjecting her to degradation through oral intercourse and so on.

1699. It is significant that, although AG was also afraid of her father, she did not hold him in such fear that she felt she had to submit to the massages when her discomfort with the way he touched her reached a certain level. AG’s description of her eventual resistance to WG from about 2005 (when the complainant was 13 and AG was 17) is inconsistent with WG having caused his family terror to a degree that would have prevented the complainant speaking to others of the alleged gross abuse she was suffering.

Corroboration – diaries, tools etc

1700. I accept the submission of WG’s counsel that the complainant’s diary, the tools and underpants found in the surrounds of the family home and the words scratched in the timber-work of the shed provided insufficient corroboration to enable the jury to exclude reasonable doubts about the Crown case. Dr Norrie’s evidence of pre-pubertal damage to the hymen, also, could not overcome the improbabilities. The doctor conceded that her scientific reasoning was not the subject of research and was based on very few cases, the number being uncertain but less than 10. Her evidence was indeterminate as to what had caused the state of the complainant’s hymen.

1701. The complainant’s 2006 diary and her exercise book journal covering 1 March to 12 April 2007 contain regular entries on the theme of the complainant urging herself to be strong and criticising herself for poor performance in running. The opening pages of the 2006 diary contain these entries:

WEAK WEAK - YOU ARE SOFT - ALL YOUR FAULT - NO CRYING.

There follow, throughout 2006, several entries each month recording occasions when she thought her training had been a “bad session”; urging herself to “run faster”, to “get tough” and to “keep going” and admonishing herself for being “soft” or “weak”.

1702. Whereas the 2006 diary refers to birthdays and other events, the 2007 journal is solely a record of the complainant’s running activity. The months covered by the 2007 journal fall in between the complainant’s anxiety attacks early in that year on her return trip from Hobart and her more overt anxiety breakdown at Canberra in May 2007, described by Ms Frey. The complainant’s performance anxiety and the pressure she felt from WG’s expectations, as observed by Ms Frey in May 2007, are evident in the 2006 diary and in the 2007 journal. The latter records, on several dates, “Dad not happy with session. Need to go harder, faster” and similar statements.

1703. There are entries in the 2006 diary reflecting a desire to be away from WG, such as the following:

13 March - No dad today! Good day.

7 June - Rest day from Dad!

1 September - Rest day from Dad!

20 September – Didn’t see Dad much today, was nice!!

Bearing in mind that WG was the complainant’s coach and that there was ample evidence he pushed her very hard, these entries are at least as consistent with the complainant simply feeling the pressure of his training and expectations as with the possibility that she dreaded sexual assaults by him. If the latter was what she had in mind, the jury could not regard the entries as probative of any particular assault that was charged or even as proof of assaults, generally, of that penetrative and brutal type.

1704. At the beginning of the 2006 diary, against the date 26 December 2005 there is an entry “Massage Dad”. The same note or simply the word “Massage” appears at least once and sometimes twice or more in every month for the rest of the year. There are no such entries in the 2007 journal. In 2006 the following entry appears:

11 April - Massage Dad. Remember, not to [sic] hard.

1705. There are numerous entries, only in the 2006 diary, referring to “Dad” and “wee”. The following are examples:

25 January - Tolls as he didn’t wee.

20 February - Got box today, make Dad wee next time or box agane [sic].

4 April - Dad didn’t wee, use other way tonight.

5 April - Dad wee so no tolls!!

31 July – Didn’t wee last night.

5 August - Didn’t make him wee.

14 August - Didn’t wee.

16 August - Dad weed last nite!!

7 September - Didn’t make him wee. He got new tolls, really hurt […].

30 September - Dad was happy after making him wee!

10 September – Massage / Make dad wee.

26 December - Didn’t make dad wee, really angry.

1706. The complainant said that until July 2007 (count 70), on the occasions when her father ejaculated she thought that he was urinating. Within the date range of the above entries the complainant gave evidence of only three instances of penile-oral intercourse by her father, in which she may have seen that he either did or did not ejaculate, or “wee”; namely, counts 52, 53 and 57. The diary entries do not provide material corroboration of any of those offences. The interspersion of the “wee” entries with numerous references to the complainant massaging WG means that they are consistent with the possibility that throughout this year WG was procuring the complainant to massage him around his erect penis and cause him to ejaculate, as described by AG.

1707. The 2006 entries include many references to “tolls” and to the “shed”. In a few instances the entries are expanded to refer to one or more nights, in connection with the “shed”. There are also some references to “the box”. None of these entries are sufficiently detailed or coherent to provide material support for the complainant’s description of depraved and sadistic acts by WG. On the assumption that this is a contemporaneous record, as the jury would have been entitled to find, the repeated use of the words “tolls” and “shed” contributed nothing over and above the complainant’s own evidence to prove the offences alleged to have occurred during 2006.

1708. The 2006 counts are that WG performed cunnilingus on the complainant twice (counts 49 and 55) and fellatio three times (counts 52, 53 and 57); that he forced objects into her vagina on seven occasions (counts 50, 51, 54, 58, 59, 60 and 62) and into her anus on one occasion (count 61) and that he had penile-vaginal intercourse twice (counts 56 and 63). If any of this had occurred – coupled with binding the complainant with rope and barbed wire, threatening her with death and confining her in a box designed to hold diving equipment, as she asserted – and if the complainant thought to make reference to it in a diary, more content could be expected than is in fact to be found in the 2006 entries.

1709. The words carved by the complainant in the timber work of the shed are similarly equivocal and could not have contributed to overcoming the inherent improbabilities in the complainant’s evidence. The finding of old tools, barbed wire and underpants on the property was of equally negligible weight against the difficulties in the way of accepting the complainant’s evidence.

Application of the legal test of an unreasonable verdict

1710. The complainant’s allegations were not things about which she could be mistaken. Entertaining a reasonable doubt would involve recognising a possibility that either she was deliberately untruthful in her evidence or she had persuaded herself to a belief in things that never happened, possibly as an exaggeration of less serious sexual offences.

1711. In order to suggest that the complainant had reason to fabricate her claims, defence counsel put that she blamed WG for her failure to achieve her goal of participating in the Olympic Games and that she thought he did not believe her allegation about having been sexually assaulted by a coach in Doha in December 2009 (at age 17). The complainant denied that she was hostile to her father on either of those grounds. The jury would have been entitled to find that these were unpersuasive suggestions of a reason to invent such serious allegations.

1712. On the other hand, having regard to AG’s much more plausible evidence of WG’s sexual indecency towards her, there was a real possibility that the complainant may have been abused by her father to a similar level and that she had distorted and exaggerated this mistreatment in the context of her psychiatric illness. In my opinion the serious doubt about the plausibility of the complainant’s account could not be resolved to exclude this possibility. As the jury must, in my view, have been left with a reasonable doubt about the complainant’s evidence as a whole, they could not exclude such a doubt with respect to any charge against WG. It was not open to the jury on the whole of the evidence to find him guilty. I consider that the verdicts against WG were unreasonable or unsupported by the evidence.

KG’s conviction appeal

1713. KG’s ground 8 (verdicts unreasonable or unsupported by the evidence) has been dealt with at some length by Fullerton J. I respectfully disagree with her Honour’s rejection of that ground because the Crown case against KG, as with its case against WG, depended upon acceptance of the complainant as a witness of truth. Intractable improbabilities in the complainant’s account of abuse by WG necessarily left a reasonable doubt over the whole, massive raft of her allegations, including those against KG.

1714. KG’s counsel placed heavy reliance on the fact that the complainant had suffered acute mental ill-health from early in 2010 and that her allegations against her parents were first made after the onset of psychiatric symptoms. Counsel referred to her as a “very troubled and mentally unwell young person”. He made this submission:

A real possibility that cannot be discounted in this case is that [WG] was a fierce disciplinarian and athletics coach, that he may have interfered with [the complainant] in some way unknown to the appellant KG, that the child has “cracked” under the pressure of the father’s excessive sporting discipline, has had a mental breakdown, and during the course of her treatment for mental problems has exaggerated an ever-expanding list of alleged crimes culminating in the bizarre claims about rape by the various tools mentioned in evidence – and because [KG] has not “turned on” [WG], has herself “turned on” [KG] with false allegations.

1715. Without adopting the language of this submission, I accept that it reflects a real possibility that the jury could not exclude, with the qualification that there was evidence upon which they could have been satisfied that WG indecently touched the complainant during massages and that KG was aware of this and was unwilling to intervene. If, as it was open to the jury to conclude, the complainant was confused and disturbed by sexual touching such as she reported to Ms Frey in late 2009 and if she believed that her mother knew about it, KG’s failure to intervene may have compounded the pressure on the complainant’s mental health. It was a reasonable possibility open on the evidence that consequent feelings of betrayal by KG may have contributed to the complainant exaggerating her complicity.

1716. The complainant’s claims that her mother coached her how to give WG pleasure by making noises during penile-vaginal intercourse and by sucking his penis in a certain manner are allegations of most extraordinary moral bankruptcy. The same may be said of the complainant’s allegation that her mother took part in a three person sex act with WG and the complainant at age 12 (counts 37, 38 and 40). It is so improbable that this could have occurred without the complainant mentioning it to her sisters or complaining about it to friends, teachers or members of her extended family, that I cannot regard it as open to the jury to have excluded reasonable doubt with respect to these allegations.

1717. There was nothing to support the complainant’s allegations against her mother beyond the complainant’s own word. The evidence adduced in the Crown case that KG at times drank to excess was contradicted by other witnesses and in any event provided no corroboration of the complainant’s allegations against her mother of utter depravity. This feeble attempt to bolster the complainant’s allegations paled to nothing against Mr McGuilverey’s unchallenged observations of KG’s mothering and character, made from within the household.

WG’s application for leave to appeal against sentence

1718. I concur in Fullerton J’s reasons for dismissing WG’s application for leave to appeal against sentence. If the convictions stand then I agree there is no sentencing error in any of the particular respects argued by WG. With respect to the ground that WG’s aggregate sentence is manifestly excessive, none of the indicative sentences could be regarded as too high. Many of the crimes, as described by the complainant and accepted by the jury, were exceptionally grave instances of abuse. The degree of accumulation and concurrence that is implicit in the aggregate has produced a very substantial term of imprisonment that was warranted for the whole course of offending over many years. I am unable to see how a lower aggregate could have been arrived at, commencing from the suitability of the indicative sentences and applying even a modest degree of accumulation to reflect systematic abuse over a long period.

KG’s application for leave to appeal against sentence

1719. I agree with Fullerton J’s rejection of grounds 1-4 of KG’s sentence appeal, being the grounds in which specific error is asserted, and with her Honour’s reasons on that aspect of the appeal. However in my view the aggregate sentence of 16 years with a non-parole period of 11 years was manifestly excessive. Although an appeal against sentence on that basis is concerned with the aggregate and not with the indicative sentences, if any of the indicative sentences themselves appear manifestly excessive that may contribute to a conclusion that the ground should be upheld. I consider the learned trial judge’s indicative sentences for five of the 13 counts upon which she was convicted were excessive.

1720. In discussing those five counts I will refer only to the objective circumstances. My view of appropriate indicative penalties and of the manifest excessiveness of the aggregate imposed at first instance takes into account KG’s subjective circumstances, her low-risk of reoffending, the breach of trust and maternal responsibility involved in these offences and all other sentencing factors, which are comprehensively stated in Fullerton J’s reasons. Those factors are common to all counts. The variable is the objective seriousness of each count.

1719. Count 13 was an offence of aiding and abetting the complainant, at age 8, to engage in sexual intercourse with WG. The aiding and abetting took the form of KG “talking generally [to the complainant] about sex” and then telling her, “It makes it better if you make noises” and, “It would make it better for you and dad”. The complainant said that KG was drunk at the time of this conversation and slurring her words. The complainant could not nominate a date when the conversation occurred, beyond saying that it was during 2000 and before Christmas of that year. The first instance of WG having sexual intercourse with the complainant after this was on 31 December 2000 (count 14). The aiding and abetting was apparently alleged to have been accessorial to that principal offence, more than a week later.

1720. Undoubtedly KG’s conversation with the complainant involved depraved encouragement to submit to WG’s sexual abuse and it conveyed condonation of that appalling crime. However the offence involved no physical participation nor presence at the scene. The causative significance of KG’s words is least doubtful. All the other evidence of the complainant and of AG was to the effect that WG did what he wanted and that he needed no encouragement. KG’s failure to intervene and to protect her daughter from this ongoing conduct was gross neglect – but that is not what was charged on this count. The indicative sentence of 8 years was excessive for the conduct comprehended in the offence, measured against the maximum penalty of 20 years. No more than 4 years would have been an appropriate indicative sentence.

1721. Count 15 concerned KG instructing the complainant at the age of 8 how to masturbate herself, in the presence of her sisters who also received the instruction. KG touched herself by way of demonstration. This was an aggravated act of indecency with a maximum penalty of 7 years. It was a grossly inappropriate form of sex education for an 8-year-old girl but it did not involve any encouragement of her to engage, at any time, in sexual activity with another person. In my view an indicative sentence of 4 years and 6 months was manifestly excessive and half of that, being 2 years and 3 months, would have been appropriate.

1722. Count 18 occurred on the same night as count 15 and consisted of KG touching the complainant inside her vagina to indicate how sexual intercourse should feel. This was in the context of KG talking to the complainant about what would make sexual intercourse with her better for WG. However this conduct was not charged as aiding and abetting any principal offence by WG, although the jury accepted that he came to the complainant’s bedroom later the same night and had penile-vaginal intercourse with her. The digital penetration comprised in count 18 was not for KG’s own sexual gratification. What made it serious was the depraved sexual education to which it was directed. In the circumstances in which the offence occurred and taking into account a maximum penalty of 20 years, the indicative sentence nominated by her Honour of 10 years was excessive to a very significant extent. An indicative sentence of 4 years would have been appropriate.

1723. Count 38 was the most serious offence committed by KG, being sexual intercourse by digital penetration of the complainant, aged 12, when the two of them and WG were all on the bed together and WG was performing other sexual acts on the complainant. The maximum penalty for count 38 is 20 years and the standard non-parole period is 10 years. Serious as this sexual assault was, it is apparent that WG was directing the actions of both his wife and his daughter and that KG’s active participation in the whole scene was limited to this single act of digital penetration. I do not accept that it warranted an indicative sentence of 12 years with a non-parole period of 8 years and 6 months. A head sentence of no more than 6 years with a non-parole period of 4 years should have been indicated.

1724. Count 67 was an aggravated indecent assault that occurred when the complainant, aged 15, slept with her mother during an absence of WG overseas. On the complainant’s evidence, KG was so affected by alcohol on this occasion that it had been necessary for the complainant to assist her to the bedroom. She said that KG touched the outside of her vagina and rubbed it. The maximum penalty is 7 years and the standard non-parole period is 5 years. The objective seriousness of this offence sufficient warrant the learned trial judge’s indicative penalty of 4 years with a non-parole period of 3 years. Half of that would have been appropriate, being 2 with a non-parole period of 1 year and 6 months.

1725. KG was convicted of six further offences against the complainant, one offence against AG and one against CG. In considering an aggregate sentence of course there must be taken into account the totality of the offending against the complainant and the fact that there were two other victims. The latter consideration would make a minimal contribution to the aggregate because the offences concerning the complainant’s sisters were counts 16 and 17, committed at the same time as count 15 when KG instructed all three of her daughters together with respect to masturbation.

1726. The aggregate sentence arrived at by the learned trial judge necessarily involved a degree of notional accumulation between the indicative sentences, the highest of which were of 12 years, 10 years and 8 years. Commencing with the lesser indicative sentences that I would adopt for five of the most serious counts and otherwise accepting that the learned trial judge’s indicative sentences were within her discretion, an aggregate of 10 years with a non-parole period of 7 years would properly reflect the overall criminality of the charges proved against KG. That aggregate sentence involves an adjustment of the ratio of the non-parole period to the head sentence to reflect the learned trial judge’s finding of special circumstances, which there is no reason to disturb.

1727. I adopt Fullerton J’s observation that, in assessing the impact of KG’s offences upon the complainant it was a significant challenge for the sentencing judge not to conflate the impact of WG’s offending. In the context of shocking abuse by KG’s husband, as found by the jury, it must also have been very difficult for the sentencing judge to resist carrying over his depravity and subconsciously attributing to KG a broader complicity than was alleged in any of the offences for which she was to be sentenced. With due respect to the learned judge, the excessiveness of five of the indicative sentences and of the aggregate appears to reflect that some such carrying over may inadvertently have occurred.

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Annexure A (487625, rtf)

Annexure B (250824, rtf)

Amendments

09 July 2020 - [1] and [2] inserted bulletpoints

14 July 2020 - Redact name of complainant at [1408]

01 July 2022 - added Annexures A and B

Decision last updated: 01 July 2022