The evidence
71 KC gave evidence about the two incidents on which the Crown had opened. KC had finished her evidence when it was revealed that RC had made a further statement about an incident involving KC, which also involved a sexual assault on herself, which had not previously been disclosed to police. There had earlier been committal proceedings at which RC had given evidence, but where this incident had not been revealed. It was not the subject of any charges. There was an adjournment of the hearing to permit an investigation of matters raised in RC's new statement to be undertaken. On resumption RC was called and KC was then recalled, in order that she could be cross examined on the new matters RC had disclosed.
72 When she was first called, KC's evidence was that she remembered visiting the appellant's family, both when they were living at Campbelltown and later at The Oaks. The son M was around the same age as her. When the appellant and his family lived at Campbelltown, the daughter K was a baby. KC had started to visit The Oaks, where the family later moved, towards the end of 1983 and she had stayed overnight there with her sister. The charged incident occurred when she was 10 or 11 years of age, when they stayed at The Oaks. She was sleeping on a bed; it was dark; the door was ajar and a light was coming through when she woke to find the appellant between her legs, her underpants and the blanket pulled down. She said nothing, felt petrified, thought that she would be killed and then felt the appellant licking her vagina. She turned her head because she did not want the appellant to realize that she was awake. She thought of the appellant's wife coming in; she remembered feeling frightened and then it went black.
73 KC could also remember a second incident. She could not be sure, but thought it had occurred some years earlier at Campbelltown when she was 6 or 7. It wasn't as dark as the other time, it felt like early morning. She woke to find the appellant in front of her. His son M came from the left and he and the appellant were having a look at her vagina. The son then came onto the bed, had a look and raced off. She was lying on a mattress on the floor. This was not as traumatic as the charged incident, she just felt embarrassed.
74 KC told no-one about these incidents, she blocked them out completely. She did not remember them until she was 16, when she lived in Queensland. Her recollection returned when she was sitting at an oval reading an article in a magazine about a girl who had been sexually molested. A memory of the charged incident came flooding back, as if she was completely reliving it. Immediately after reliving the charged incident, there was a flash straight into what had happened with the appellant and his son in the uncharged incident. She did not speak to her mother about these memories until some years later and did not approach anyone in authority, until she went to the police in 2006.
75 In cross examination KC explained that when she recovered her memory, it was like reliving the whole experience and that she could remember every thought and feeling which she had. She explained why she thought the uncharged incident occurred when she was 6 or 7 and the charged incident when she was 10 or 11. When she was 16 she was not sure if the two incidents had occurred on the same day, in the same bed. It was not until she sat down with the police and looked through photographs and went over her memories, that she realised that her memory suggested that she was 6 or 7 when the uncharged incident occurred, because she could specifically remember then thinking about the appellant's baby daughter K. She wasn't a baby at The Oaks. KC remembered that the uncharged incident had occurred at Campbelltown, when M was present. This suggested to her that the two incidents were separate. So did the light.
76 KC said that when she made her statement to the police in 2006, she was not sure if they had occurred at different times during the same night. But when she gave her evidence, she was sure that the uncharged incident had occurred when she was 6 or 7, because she had then been thinking about the baby. K was a baby at Campbelltown. Her feelings about her body image changed when she was 10, after visiting The Oaks. After the charged incident, she did not want to go there again. This made her realise the incidents were separate. KC also explained that her sister was in the room during the charged incident. She thought about her at the time, but did not look at her.
77 KC explained that she had spoken to her sister at different times over the years, but couldn't recall when. All that she had asked her sister was whether the appellant had done anything to her. RC always said nothing had happened to her. Her sister was a support person when she went to the police. KC also explained her fears and why she had delayed in making her report.
78 KC was further cross examined as to where the uncharged incident had occurred. She again explained that the uncharged incident had occurred when she was on a mattress on the floor when she was 6 or 7 and the charged incident when she was 10 or 11, when in a bed at The Oaks. She had not been sure what had happened first, until she sat down and thought about the thought processes which she had during the two incidents. She came to separate them because of her thinking about the baby K during the uncharged incident, about M being there and M running from the left. She reasoned that she couldn't have been at The Oaks because she recalled there was a wall there at The Oaks. Her last thought was of the baby, who was a baby when she was 6 or 7. She also felt young. She remembered exactly what she was thinking and feeling then. She was definitely sure that there were two separate incidents.
79 When RC was called, she gave evidence about the incidents relating to her, which were the subject of charges. RC also gave evidence that on one night when they had stayed over at The Oaks, she and KC had been sent to bed. KC was on a bed and she was on a mattress on the floor. She saw the appellant come into the room and step over her bed. He had a dolphin torch and a box of tissues and his son M was with him. She saw the appellant pull down the sheets covering KC. She sat up and said 'Is everything alright?' or 'what are you doing?'. KC was asleep. The appellant said 'Just go back to sleep'. He put the torch on the bed and she saw the little boy behind him in his pyjamas. The appellant pulled back the remaining covers and pulled down KC's underpants. RC sat up on her elbows and peered over to see what was going on. He told her to roll over and go to sleep. As she rolled over, she saw his face go down towards KC's vagina. He was talking either to KC or the boy, but KC did not say anything. RC fell asleep and a short time later she woke up and her underpants were down and the appellant was laying on top of her legs and he was licking her vagina and clitoris. She was scared and shaking. She said 'what are you'd doing?' He said 'don't worry go back to sleep'. She lay there frozen, scared. He sat up and wiped his mouth with a tissue. She looked at him, said nothing and rolled over and went to sleep
80 RC also gave evidence that she was present when KC spoke to her mother about the assaults, when she was 13 or 14. She was asked, but denied to them that anything inappropriate had happened to her, even though she then had memories of what the appellant had done to her. She did not want to think about it. She did not tell her mother about the sexual assaults with which the appellant was later charged in respect of her. Nor did she reveal what she had witnessed in relation to KC and what had occurred to her on that occasion. She had discussed what had happened to KC with her many years later, but had again denied that anything had happened to her. She did not tell KC what she remembered. She claimed that the appellant had told her not to tell anybody.
81 RC confirmed that after KC approached the police, she had also been asked by the police if anything had happened to her. Again she denied that anything had occurred. Nor did she tell the police of what she had witnessed in relation to KC and what had occurred to her on that occasion. It was not until later, after speaking to her partner, after she had read something on the internet about the appellant being associated with a child care centre, that RC herself approached the police in relation to the assaults with which the appellant was later charged in relation to her.
82 This was after she had a flashback about what the appellant had done, while in the shower. This was like watching a video, of all the things which the appellant had done to her. It all played back in her head. She then spoke to her partner, then KC and then approached the police. She also spoke to a counsellor on a number of occasions, before and after she spoke to the police. She had told the counsellor about the incident involving KC, after she had made her statement and before she came to Sydney for the committal hearing, but she made no statement to the police in relation to that incident, until the day before she gave her evidence at the trial.
83 RC was cross examined on the basis that her evidence was fabricated and that what she claimed to have seen in relation to KC was recent invention, which she denied.
84 In cross examination, RC said that the incident involving KC had occurred at The Oaks. She was very young when she went to the other house and that was why she did not remember it. She also explained why she had not disclosed the assaults, even to the police when approached. She had good memories of going to The Oaks and playing there and she didn't want to think about what had happened to her, even though she had always remembered all of the full incidents, which had been fresh in her memory, but she didn't want to divulge the secret. She was scared of the appellant, even when she knew her sister was going to court. What she saw the appellant do to her sister seemed worse to her than what he had done to her, which included putting his penis in her mouth. She didn't tell the police everything, because she wanted to protect herself.
85 RC was 13 or 14 when her sister told her mother of the assaults. She then remembered the appellant assaulting her as well, but did not reveal this because she was frightened of her mother. Her statement to the police, that this was the first she knew of the assault on her sister was untrue, as was the evidence which she later gave to this effect at the committal hearing. She deliberately did not reveal to the police what she had seen the appellant do to KC. She claimed, however, that she had later told Detective Cordery about what she had seen the appellant doing to KC, before the committal hearing.
86 When further examined as to what she remembered of the assault on KC, RC said that she believed that the son M was the boy present. When asked whether there was a girl in the family then, RC volunteered that 'there was a baby actually', but she could not remember her. Later RC agreed that the daughter K was two years younger than her and no baby when she was 6 or 7.
87 RC said that she had not gone to sleep before the appellant entered the room, it was some time after they had been put to bed and he entered with a torch, followed by M. She knew at the time that what had been done was wrong. She saw the appellant put his face near her sister's genitals and pull her pants down. M was standing at the end of the bed her sister was sleeping in. She did what she was told when directed to roll over and go to sleep. She remembered waking to find the appellant licking her vagina, not saying or doing anything and the appellant then wiping his mouth with a tissue. She agreed that she had not put this in the new statement which she had made the previous day, even though she had always remembered this and that she had then made a second statement to that effect, after realizing that something had been left out.
88 RC was also cross examined as to a different account of this incident which she had given her counsellor, in which she had said that the appellant had touched her and her sister under the bedclothes, but had not mentioned him licking her vagina.
89 In re-examination RC was asked about evidence which she had given at the committal hearing, which included that she had a vague recollection of what had happened, only because her sister had discussed it with her. She explained that until she had the video-like recall of what had happened to her while in the shower, what she could remember was a lot of images which she could not clarify and which she didn't want to think or talk about.
90 KC was then recalled and further cross examined. She explained again that the charged incident had occurred when she was 10 or 11; that she remembered her sister then being present; she was not sure if she was on a bed or on a mattress on the floor. She did not remember the appellant having a torch or a box of tissues with him. She said she never saw him assault her sister.
91 KC said the uncharged incident occurred when she was 6 or 7. She was not certain whether it was in different place, but she thought so, because she felt younger and had then thought about the baby. She was not lying in the same bed, or in the same position as during the charged incident. It was a different time. Her sister was not there, she had no thought or memory of her sister being present then. She remembered the appellant and his son M being there. She recalled no torch or box of tissues or anything happening to her sister.
92 KC and RC's mother gave evidence that she was close to the appellant's wife, who had invited her daughters for a sleep over at The Oaks when KC was 10 or 11 and RC was 6 or 7. That was the only occasion which she could remember. KC was upset the next day when she collected her daughters and she learned from RC that they had been locked in a gaol cell there by the appellant. When KC was 18 she had told her about the appellant assaulting her by performing oral sex on her. RC was then asked, but denied that anything had happened to her. The account of what she was told by KC differed in a number of respects from that of KC, which it is unnecessary to outline.
93 M's evidence was that he was 10 or 11 when the family lived at The Oaks. He was blonde and slighter than his younger brother. He could not recall KC and RC staying over at The Oaks, or being present on any occasion when the appellant went into a bedroom where KC or RC were sleeping. He also could not recall being present when his father had sexually assaulted KC or RC. In cross examination he said he recalled KC visiting the Campbelltown house and The Oaks. KC was his friend, but he could not remember RC as a child, or KC having a sister. He was estranged from his family at the time he gave his evidence, but said that he imagined that he would remember, if he had seen the appellant lick KC's vagina when he was 10 or 11.
94 Detective Sergeant Cordery gave evidence as to various matters, including how KC and RC had come to make their original statements and how RC had approached him before the committal hearing, to advise that she had remembered further details of staying at The Oaks. She had not then mentioned remembering a further sexual assault. This evidence contradicted RC's evidence. The counsellor Ms Mellor's evidence was that in July 2008, RC had told her that she remembered another incident not in her statement, when the appellant had come into a room she was sharing with KC with a Dolphin torch and had put his hands under the bed clothes and touched her. The counselling session was disturbed by RC's young son, who she had with her. In March 2008, RC had told Ms Mellor that she remembered a lot more, but she did not want to go there. She wasn't sure if she wanted to change her statement, because she thought the appellant would be going to gaol anyway. In cross examination, Ms Mellor explained that RC had said that during this incident the appellant had touched her on the body under the bedclothes. The session was chaotic because the child was present and she remembered RC saying something about her sister, which she didn't write down, but nothing about a boy being present. She could recall no discussion of anyone having their vagina licked.
95 The appellant gave evidence that he did not assault either KC or RC. KC used to play with M when they lived at Campbelltown. He did not remember them staying overnight at Campbelltown or at The Oaks. He denied having locked KC or RC in a cell there, although the kids used to play there sometimes. In cross examination he denied that other children had slept over. He denied that he had a dolphin torch, he had a police torch. It was the evidence of the appellant's wife that when they had lived at Campbelltown, she had on occasions picked KC and M up from school and they had afternoon tea and stayed together until KC was picked up. KC and RC did not stay overnight there, nor at The Oaks, where they called in only a couple of times. She had not invited them for a sleepover, nor did other children stay over.
96 The son M was recalled and gave evidence about other children sleeping over at The Oaks, friends of his, his brother, or sister, on spare bedding, a fold out bed and a spare mattress. He recalled torches at the house, including a dolphin style torch when he was about 10, but he could not recall when he was 6. He explained the nature of his dispute with his parents over money. He confirmed that he had given evidence at the committal that he could not remember any occasion where a girl had stayed over in his sister's room. He insisted that he could remember the torch and spare bedding.
97 KC was four years older than RC. RC was born in 1977 and KC in 1973. Accordingly, RC was 6 or 7 years when the charged incident occurred when KC was 10 or 11. If the uncharged incident about which KC gave evidence occurred when KC was 6 or 7 as she believed, RC would then have been 2 or 3 years. The Crown conceded in submissions that RC would not have remembered the incident about which she gave evidence, if it had occurred when RC was that young.
98 The appellant's son M was born in 1974 and he was about 10 years at the time of the charged incident. KC did not remember him being present during that incident. M was also 3 or 4 years younger, if the uncharged incident had occurred when KC was 6 or 7 years. M did not remember KC or RC being assaulted by his father. KC remembered M being present and thinking about the appellant's daughter K as a baby at the time of the uncharged incident. K was born in 1979, so would have been a baby when KC was 6 or 7 and RC was 2 or 3. K was not a baby when KC was 10 or 11 and RC was 6 or 7. In her cross examination, RC volunteered that K was a baby at the time of the incident involving KC which she described, with M being present. RC cannot then have been 6 or 7 years.