DI v R - [2023] NSWCCA 293 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

DI v R

[2023] NSWCCA 293

Court of Criminal Appeal (NSW)|2023-10-25|Before: Ward P, Fagan J, Sweeney J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-10-25

Before

Ward P, Fagan J, Sweeney J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

Publication of the name of the complainant and/or any other witness who was a juvenile at the time of the offending prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 February 2021 Before: Baly SC DCJ File Number(s): 2017/188331

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was charged with nine counts of sexual offending, alleged to have occurred in 1996, against his then partner's daughter. He was found unfit to be tried and the matter proceeded by way of a special hearing. The primary judge found that on the limited evidence available, the applicant had committed the offences charged in counts 1, 4 and 7. Counts 2, 5 and 8 were charged in the alternative to counts 1, 4 and 7 and no findings were made. The applicant was found not guilty of counts 3, 6 and 9. The applicant sought leave to appeal on three grounds: that the conclusion that on the limited evidence he had committed the offences in counts 1, 4 and 7 was unreasonable and not supported by the evidence; the trial judge erred in her treatment of the complaint evidence and failed to comply with s 21B of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"); and the trial judge erred in her treatment of forensic disadvantage and failed to comply with s 21B of the Act. Held (per Sweeney J, Ward P and Fagan J agreeing), granting leave to appeal, allowing the appeal and entering verdicts of acquittal: As to ground 1 The Court, having independently assessed the evidence adduced in the special hearing and making due allowance for the advantage enjoyed by the trial judge in seeing and hearing the witnesses, had a reasonable doubt that the applicant had committed the offences charged, because of the inconsistencies and improbabilities in and contradictions of the evidence of the complainant, whose evidence was critical to proof of the charges. Therefore the findings that the applicant committed the offences charged in counts 1, 4 and 7 were unreasonable. The same conclusion applies to the alternative counts 2, 5 and 8, which were based on the same alleged acts and the same evidence. Ground 1 having succeeded, it was unnecessary to consider grounds 2 and 3.

[3]

JUDGMENT

WARD P: I agree with Sweeney J, for the reasons that her Honour has given, that the applicant's appeal should be allowed and the findings that on the limited evidence available the applicant committed the offences the subject of counts 1, 4 and 7 should be quashed. I have reached that conclusion after independently reviewing the evidence and making due allowance for the distinct advantage enjoyed by the trial judge in seeing and hearing witnesses first hand. The inconsistences and compounding improbabilities of the complainant's account of events, as exposed in Sweeney J's reasons, are such that I am left with a reasonable doubt as to the findings that the applicant committed the said offences and I am not satisfied that the trial judge's advantage in seeing and hearing the evidence is capable of resolving that doubt (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494 (Mason CJ, Deane, Dawson and Toohey JJ)). I agree with the orders that Sweeney J has proposed.
FAGAN J: I also agree with the orders proposed by Sweeney J and with her Honour's reasons. I have made my own assessment of the whole of the evidence that was before the trial judge. I concur with Sweeney J's analysis of the significant discrepancies in the complainant's evidence and the material contradictions of her by other witnesses. Those discrepancies and contradictions cause me to have substantial doubt concerning the reliability of the complainant's testimony generally and in particular her account of the applicant's alleged criminal acts. Her evidence was critical to proving the charges beyond reasonable doubt. I do not consider that the advantage enjoyed by the trial judge of seeing and hearing the witnesses could resolve the doubts that reasonably arise from consideration of all the evidence.
SWEENEY J: On 1 February 2021 a special hearing involving the applicant, DI, commenced before Judge Baly SC in the District Court, the applicant having been found unfit to stand trial on 12 August 2019. Pursuant to s 21A of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), the special hearing was conducted by the judge alone.
Pursuant to s 21(3) of the Act the applicant was taken to have pleaded not guilty in respect of nine offences charged in an indictment. Counts 1, 4 and 7 charged the applicant with sexual intercourse without consent, between 1 January 1994 and 4 March 1997 with the complainant, who was the daughter of the applicant's then partner.
Counts 2, 5 and 8 charged the applicant, in the alternative to each of counts 1, 4 and 7 respectively, with sexual intercourse with the same complainant, aged between 10 and 16 years, and under the authority of the complainant's mother, the applicant's then partner.
Counts 3, 6 and 9 charged the applicant, while in company with the complainant's mother, with committing an act of indecency towards the complainant when she was under the authority of her mother, in the same timeframes.
The allegations were that on each of three occasions in 1996, the complainant's mother facilitated the applicant to have sexual intercourse with her daughter, and immediately afterwards the applicant and the complainant's mother had sexual intercourse with each other in the presence of the complainant. The latter acts were the subject of the act of indecency allegations in counts 3, 6 and 9. I note that the complainant's mother was acquitted by this Court: SC v R [2023] NSWCCA 60.
Because the complainant was a child at the time of the alleged events all of the witnesses will be referred to in a way which does not disclose their identities and thereby, the complainant's.
On 19 February 2021 Judge Baly SC delivered her verdicts and her reasons for them. Her Honour found, pursuant to s 22 of the Act, that on the limited evidence available the applicant committed the offences charged in counts 1, 4 and 7. Her Honour then determined that she did not need to consider the alternative counts 2, 5 and 8. Her Honour found the applicant not guilty of the offences charged in counts 3, 6 and 9, accepting that the acts alleged occurred but not being satisfied to the requisite standard that they were committed "towards" the complainant, which was required to prove the offences charged.
Her Honour nominated a limiting term of 7 years in respect of each of counts 1, 4 and 7, with a total limiting term of 10 years.
The applicant seeks leave to appeal against the findings that on the limited evidence available he committed the offences in counts 1, 4 and 7 on the indictment, pursuant to s 22(3)(c) of the Act. He requires an extension of time, the reasons for which were explained in an affidavit by his solicitor, and which the Crown did not oppose. He relies on three grounds of appeal: 1. That the conclusion that on the limited evidence he had committed the offences in counts 1, 4 and 7 was unreasonable and not supported by the evidence 2. The trial judge erred in her treatment of the complaint evidence and failed to comply with s 21B of the Act 3. The trial judge erred in her treatment of forensic disadvantage and failed to comply with s 21B of the Act.
Section 21B requires that a judge who determines a special hearing without a jury must, in the determination, include the principles of law applied by the judge and the findings of fact on which the judge relied.

[4]

Ground 1: The findings that the applicant had committed the offences in counts 1, 4 and 7 were unreasonable and not supported by the evidence

In Slattery v R [2023] NSWCCA 117 this Court (Bell CJ, Ward P and Wilson J agreeing) summarised the principles that apply to a ground of appeal asserting that a finding by a judge alone after a special hearing was unreasonable: "[111] The principles that apply on an appeal against conviction on the ground of an unreasonable verdict have been stated by the High Court in in M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; and, most recently, Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 esp at [15]-[17]. [112] Most relevant for present purposes are Dansie and Filippou, which set out the proper approach by an appellate court where an accused has been convicted after a trial before a judge alone (with the consequence that the trial judge's reasons for the guilty verdict are before the appellate court). [113] The following principles may be drawn from Dansie and Filippou as to how an appellate court should approach an unreasonableness ground in such circumstances: (1) The task to be performed by the appellate court is not to determine whether there was error in the trial judge's factual findings, but rather to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty: Dansie at [7]. (2) The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury: Dansie at [15]; Filippou at [82]. (3) If the appellate court entertains a reasonable doubt that the accused was guilty, the court must conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt: Filippou at [82]; Dansie at [15]. (4) While the appellate court should approach the reasons of the trial judge with circumspection, it is entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings: Dansie at [16]; Filippou at [83]. (5) The advantage that a trial judge may have had by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and the nature of the issues that arose at the trial: Dansie at [17]. (6) Where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight: Dansie at [17]. (7) As a corollary of proposition (6), the advantage enjoyed by the trial judge will be greater where the prosecution case was supported by direct evidence of complainants whose testimony was challenged under cross-examination. [114] Relevantly, although in the context of a trial before jury, the High Court in Pell at [39] said the following with regard to the proper approach to questions of reliability and credibility of witnesses: "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
The essential submission on behalf of the applicant in respect of ground 1 was that the inconsistencies and improbabilities in the evidence of the complainant, which was contradicted on a number of significant matters by almost every other witness's evidence, should have given rise to, and should give rise to, a reasonable doubt that the applicant committed the offences in counts 1, 4 and 7, and the alternative counts 2, 5 and 8.
The Crown's position was that the asserted inconsistencies and discrepancies in the complainant's evidence sought to be relied on by the applicant should not, alone or in combination, have given rise to, and should not give rise to, a reasonable doubt about the credibility and reliability of the complainant's evidence and the findings that the applicant committed the offences. The Crown's position was that the complainant may have been mistaken about aspects of her evidence, but her evidence was credible and reliable, and that witnesses whose evidence contradicted the complainant's were mistaken about those matters in which they contradicted her. The Crown placed weight on the advantage of the trial judge having seen and assessed the complainant's evidence and that of the other witnesses.

[5]

Evidence of the complainant in the special hearing

The evidence of the complainant in the special hearing was as follows.
The complainant said she was born on 11 December 1981. When she was a young child she lived with her mother and her mother's partner, TL. She grew up with TL, liked him, knew him as a father, or father figure.
When she was 12 or 13 her mother met the applicant. The complainant was living with a foster mother when her mother commenced her relationship with the applicant. Then the complainant went to live with her mother and the applicant.
She said when her mother formed a relationship with the applicant she no longer mattered to her mother. Before then she had her mother's attention. She said her mother totally changed, was not a "mum" anymore. She did not have a relationship with her mother, she was scared of her. Her mother frequently threatened that she would be sent to boarding school if she did not do the right thing.
She said she was 13 when she met the applicant. She said at first he treated her "like a normal person" but then "everything turned sour". She said the applicant and her mother would lock themselves in their room and she would hear them moaning while having sexual intercourse and she would scream out to them to stop. She said hearing their sexual noises was very uncomfortable for her because she was "never exposed to that sort of stuff".
A few months later, the complainant and her mother moved to a different house nearby. The applicant stayed at the first place. He and the complainant's mother were still in a relationship. She said the applicant came to see her mother every day after work, and on the weekends they had to go and stay at his house. She did not like the applicant because he had taken her mother away from her. He had taken her place. She said she was just a "pawn in [her] mother's game of life". She believed her mother cared more about the applicant than she cared for her.
The complainant said her mother allowed the applicant to have sexual intercourse with her at least 20-30 times. It happened mostly at his house, but the first time it happened was at her mother's and her house.

[6]

First occasion of sexual misconduct

She said of the first occasion her mother called her into her bedroom and told her to sit on the bed. She did. She was about 14. Her mother told her to remove her clothing, her pants and lie down next to her. She said she felt "bombarded", like they were "ganging up" on her.
The applicant was standing behind her near the ensuite, and her mother was on her side of the bed in her nightie. The applicant was wearing dress shorts or pants and a dress shirt. She did what her mother had asked her to do. Then the applicant took off his clothes, except for a T-shirt, lay over the top of her and removed her underwear. She said the applicant spoke to her mother in Italian, which she did not understand. He did not speak to her. She heard her mother say the word "pregnant" in Italian. She was lying on her mother's bed next to her mother. She was crying, covering her face with her hands. The applicant tried to kiss her on the lips but she refused. She turned her head, covered her face and looked at her mother.
Her mother was lying right beside her, naked, having removed her nightie. Her mother said "Everything is going to be all right. It'll be over soon".
The applicant inserted his penis into her vagina and kept it there for about 5-10 minutes. He did not say anything to her or make any sound. He did not ejaculate inside her the first time. Her mother warned the applicant in Italian to not make the complainant pregnant. He told her not to worry. When he finished having sex with the complainant, he "jumped" straight over to her mother and continued having sex with her mother. Her mother was lying beside her watching when the applicant had sexual intercourse with the complainant. Her mother permitted him to do what he wanted. She did not consent to the sexual intercourse.
When the applicant and her mother began having sex she stood up, stood there for a couple of minutes and ran straight into her bathroom and began scrubbing her body. She noticed she was bleeding from her vagina. She knew the bleeding was from the applicant having intercourse with her. She was 14 years old. At the time of that incident she had not had sexual intercourse with anyone.
She said the next day her mother and the applicant took her shopping and the applicant bought her a teddy bear, which she had wanted for a while. It cost $110 and was one and a half metres high.

[17]

The complainant's evidence in cross-examination

In cross-examination the complainant said that when the applicant and her mother assaulted her that, without a doubt, was the first time she was sexually active. She said before she became pregnant and had the abortion on 1 August 1996, the only person she had had penile-vaginal intercourse with was the applicant. She said the applicant was the very first person she had sexual intercourse with. She said that she had sexual intercourse with RS in 1997, after the applicant had sexual intercourse with her, and RS never ejaculated inside her.
She agreed she had sex with RS and a boy named "Jamie" in 1996, but she believed it was after the applicant had sexual intercourse with her, and she would not accept it was before her abortion in August 1996.
She agreed that in her first written statement there was no mention of her having given a prior account which was recorded on tape. She said there was no point in mentioning it because the police did not believe her the first time and this was a whole new statement. But she said she did tell the police she had made a statement before at another police station.
She agreed that in her first written statement the first incident she talked about was the one which resulted in her becoming pregnant. She said she did not mention the first incident, which happened before the incident in which she became pregnant, because the police did not believe her the first time, and so her hope for police diminished, and she did not want to create doubt in the mind of the second police officer by telling him that the first police officer did not believe her.
She agreed she said in her 2017 statement the first incident happened on a weekend, but in her 1997 statement she said it was a school day. She said her memory would have been fresher in the earlier statement.
The complainant confirmed that on every occasion the applicant sexually assaulted her, he immediately afterwards had sexual intercourse with her mother. She agreed that in the first statement she made no mention of the applicant having sex with her mother. She said she left out of her statement that the applicant and her mother had sex afterwards to try to protect her mother. She said she did not want to get her mother into trouble, because she was her mother, and she believed the applicant was more to blame for what he did to her than her mother. She did tell the police her mother invited her into the room, because she did. She said that her mother gave the applicant permission. She said she told the police her mother facilitated the applicant having sex with her, but not that the applicant had sex with her mother after he had sex with her, because "it was always about me, not about her".
She said "Now I see there's a reason I should have told them that it happened, but it wasn't initially - they were two adults. The only thing wrong with that is that I was younger and they were doing in front of me. But I didn't see it at that view back then. I'm too young to understand anything".
She said seeing the applicant and her mother having sexual intercourse in front of her was very uncomfortable, but the only thing her mother did wrong was to not protect her and let "these things" happen to her.
She reiterated she did not tell the police about the applicant and her mother having sexual intercourse because "It was about me… what they did to me… what [the applicant] had done to me."
The complainant said that the applicant had sex with her after the abortion. She agreed it could be possible she did not say in her 2017 statement that the applicant had sex with her after the abortion. She maintained the applicant had sexual intercourse with her on more than one occasion after the abortion. She said she could not recall specific dates and times, in response to a suggested omission in her 2017 statement.
She agreed that in a conference with the Crown Prosecutor she was taken to her 1997 and 2017 statements and asked did any of the sexual assaults occur after the abortion, she took a moment to think about her answer and could have said no, but in her evidence she was saying yes. She agreed that answer may have changed because she had read her 1997 statement and refreshed her memory. In re-examination she said before the conference with the Crown Prosecutor she did not read her statements.

[18]

Diary entry

The complainant agreed that she had a close teenage friend, RR, in the 1990s. She agreed they wrote a "chain dairy" and passed it between them. She said some things in the diary "were true, some were untrue, some were made up stories".
She was asked about a diary entry in which she said she was pregnant with RS's baby and she had to have an abortion next Thursday. She said it could not be proven that she wrote that entry before the abortion on 1 August 1996 because there were no dates on the piece of paper. She said what she wrote was not true. She said she was giving RR false information because she did not want to tell her her mother and her boyfriend were sexually assaulting her. She just wanted to fit in with the group so she made up a story about RS, whom nobody else knew, so they could not ask him. She said she could not remember when she wrote that entry and repeatedly said there were no dates on the diary entry.
She agreed records showed she had her abortion procedure on 1 August 1996, which was a Thursday. She agreed she only had one abortion. She would not agree the undated diary entry was written in 1996.
She said she did not believe the pregnancy was due to RS and not the applicant because RS never ejaculated in her. She said she never had a doubt in her mind that the baby was the applicant's. She said she did not have sexual intercourse with RS or any other person other than the applicant before 1 August 1996, "Not to my knowledge. I can't remember".
She agreed that in her 1997 statement she said "when [the applicant] had sex with me I had never had sex with anyone else before. The only other person I have had sex with is my boyfriend, which happened earlier this year", which she said was a reference to DR, and the year being 1997.
When it was put to her that she knew that was not true because she had had sexual intercourse with other people, including RS and possibly Jamie in 1996, she said it was because she was confused with dates. She said more than likely she met RS at the end of 1996. She said she could not say for sure she remembered meeting him in March 1996, she did not remember that far back.

[21]

The complainant's evidence that the first time the applicant had sexual intercourse with her she had never had sex before and that the applicant had caused her to become pregnant

As I have already noted, the complainant's evidence was that on the first occasion the applicant had sexual intercourse with her she had not had sexual intercourse with anyone before that and she bled from her vagina afterwards, consistent with that situation. The complainant's evidence was that she fell pregnant as a result of the applicant ejaculating inside her in the second sexual assault. She maintained in cross-examination that when the applicant and her mother sexually assaulted her on the first occasion that was the first time she was sexually active, that the applicant was the very first person she had sexual intercourse with, and when she became pregnant the only person she had had penile-vaginal intercourse with was the applicant. She agreed she had had sexual intercourse with young boys in 1996, but not before her abortion on 1 August 1996. The complainant said the second incident occurred around her mother's birthday, which she initially said was in July, then said 5 June or 5 July, and the time between the first two incidents was a "couple of weeks" or a "week or two". It was an undisputed fact that the complainant had an abortion on 1 August 1996.
The evidence of a boy, referred to as RS, in the trial of the complainant's mother, was tendered in the special hearing. His evidence was that he commenced a sexual relationship with the complainant around March or April, probably April, 1996. He said he and the complainant had unprotected sex on a number of occasions.
Retired Detective Inspector Paul Charles, who was involved in the investigation of the complainant's allegations in 1997, read from police records that in April 1997 a statement had been obtained from RS, who had stated he had had sexual intercourse with the complainant on numerous occasions since March 1996.
Evidence was given by RR, the complainant's friend during high school. She said she and the complainant wrote notes to each other in an exercise book, she would say in 1996. She knew RS. She met him in 1996 through the complainant. She also met one of RS' friends, Jamie, in 1996. They did not attend the same high school as RR and the complainant. RR said in 1996 she and the complainant would sometimes skip school to visit some of the boys, RS and Jamie.
One of the notes was in terms: "Dear RR… Do you know how I liked RS. Well about 8 weeks ago I done something with him and he wore no protection and I got pregnant okay now on Thursday not this Thursday next Thursday I'm going to have an abortion and I'm really scared. That's why I don't talk to him." and it was signed by the complainant's name.
The next entry signed by the complainant was "Mum doesn't know who's but she's taking me to have it done. I haven't told him. I don't know how."
In another note was written "Okay I trust you. I don't know if I should tell RS". RR had responded "I think you should… seriously".
The complainant's evidence about the diary entries was that they were undated, and could not be proven to have been written before her abortion on 1 August 1996, and that she had told RR that version of events because she did not want to tell RR that her mother and her mother's boyfriend were sexually assaulting her.
Detective Charles referred to an entry he made in police records on 16 April 1997 that he spoke with the complainant at Green Valley police station, and informed her of the contents of the statement given by RS, in which he stated that he and a number of other young persons had been having sexual intercourse with her since March last year. After initially denying the contents of the statement, she eventually confirmed that she had had sexual intercourse with RS and the three other young boys mentioned in the statement, and stated that the complaint of sexual assault against the applicant and her mother was not true.
It was submitted on behalf of the applicant that the evidence of RS and the diary entries, the dates of which could be inferred to have been before the complainant's only abortion procedure on 1 August 1996, and their terms, cast significant doubt on the complainant's evidence that the first sexual assault by the applicant was her first sexual experience and that the applicant caused her pregnancy because she had not had sexual intercourse with anyone before then. The applicant submitted that those matters were central to the honesty of the complainant's evidence.
The Crown made the following submissions about the complainant's evidence on these topics. When the complainant gave evidence many years after the relevant events she could not be sure about the timing of her sexual relationships with young boys. She acknowledged the possibility she had sexual intercourse with young boys around the time of her pregnancy. It was not the Crown case that the applicant caused the complainant's pregnancy. The complainant may have had a belief, genuine and persistent, though mistaken, that the applicant was responsible for her pregnancy, and that belief was not unreasonable. The complainant's explanation for attributing her pregnancy to RS in her diary note to RR was plausible. The complainant believed that the applicant was the first person who had sexual intercourse with her. The Crown submitted that RS's evidence did not fatally undermine the complainant's assertion that the first time the applicant sexually assaulted her was the first time she had sexual intercourse. The complainant may have been mistaken about the times and dates of events, including the first incident of sexual assault.
The complainant's evidence that her first sexual experience was the first sexual assault by the applicant and that the applicant caused her pregnancy by the second sexual assault was a central aspect of her evidence. Although it was not the Crown case that the applicant had caused the complainant's pregnancy, that was the complainant's assertion and she strenuously maintained it. The evidence of RS challenged her evidence in that regard. His evidence alone may not have been fatal, but his evidence was consistent with the diary notes in which the complainant attributed her pregnancy to unprotected sexual intercourse with RS. The reference in the note to an abortion "next Thursday" is consistent with the complainant's only abortion procedure which occurred on 1 August 1996. The complainant's explanation for having named RS in the note, to protect herself from having to reveal the conduct of her mother and the applicant, is implausible, since she was not required to disclose her pregnancy and abortion to RR and give her a false explanation for them. The contradictions between the other evidence referred to and the complainant's insistence that the assault by the applicant was her first sexual experience and he was responsible for her pregnancy cannot be explained by mistakes as to dates or mistaken beliefs. Those other pieces of evidence cause a real doubt about the honesty of the complainant about those asserted facts which were central to her evidence.

[22]

The complainant's evidence that she told DR's mother about the assaults and DR's mother took her to Miller police station within half an hour

As I have noted, the complainant gave evidence that after the second incident of sexual assault she went to the home of DR, told him what had happened, he took her to his mother, she told his mother that the applicant had sexually assaulted her while her mother watched and allowed it to happen, that DR's mother was very shocked and took her straight to Miller police station where she made a statement to police. The complainant later said that she told DR about the assaults after the first time it happened and his mother took her to the police station about half an hour after she had told her about the alleged assaults. She said at various times that this occurred in March 1997 or March 1996, or February 1996 or February 1997, before her abortion in August 1996 or after the abortion.
The statement of DR, also known as DG, was tendered in the special hearing. It was made in January 2017. In the statement DR said that he was seeing the complainant, who was about 16 years old at the time and he was about 17. He said he remembered one day when the complainant was at his place, she told him "something about her being raped by her stepfather on more than one occasion and getting pregnant. She said something about having to have an abortion". He said he did not remember her exact words, he did not press her for details, he did not think she told him anything in detail. He said he told her she had to tell his mother and he convinced her to do that. He said he walked her through the hallway to where his mother was in the loungeroom. He said "I think I left the room as I don't recall hearing [her] telling [mum]". He said he did not remember what happened after that, but taking her to the police station was something his mother and he would have done.
The statement of MR, the mother of DR, was tendered in the special hearing. In her statement she said that sometime in 1995 DR had become good friends with the complainant. She believed they were in a relationship at the time, although her son never told her that they were. She said the complainant regularly came to their home to visit DR. She said about four to five months after the complaint had started coming to their home, she remembered there were two occasions when the complainant had come around to see DR when she was crying and very upset. On those two occasions the complainant and DR went out to the backyard and sat down and talked. They talked for a long period of time and the complainant appeared better after they talked. She said: "I never knew why [the complainant] was upset but I found it unusual as she was always so happy. I know that I asked DR why [she] was so upset but I don't remember him ever telling me why. [The complainant] stopped visiting us after these two times she had come around crying and upset. I did not see her much at all after these two last visits."
She said: "I do not remember [the complainant] ever speaking to me about her mother or father and I can't remember ever asking her about them. I thought it was unusual that [she] just suddenly stopped coming around and I don't know why this happened. I don't remember it but I know I would have asked DR why [the complainant] stopped coming around and I can't remember what DR told me."
It was submitted on behalf of the applicant that MR's evidence was contrary to the complainant's account that she complained to MR and MR took her to the police station. It was submitted that the complainant having complained of having been sexually assaulted by her stepfather to MR, followed by MR taking her directly to the police station, would be events MR would be unlikely to forget, given that she recalled the complainant being upset at her home.
The Crown submitted that DR's evidence that the complainant complained to him about being raped by her stepfather on more than one occasion and she became pregnant, and he told her to tell his mother, was contemporaneous compelling support for the complainant's evidence on that point and more generally. The Crown submitted that MR recalled the complainant coming around on two occasions crying and upset and talking to DR, and that the complainant may have been mistaken, or had a faulty recollection, about having told DR's mother, or that DR's mother had forgotten she drove the complainant to the police station or forgot what she was told by the complainant. The Crown submitted that the evidence did not exclude the possibility the complainant was taken to the police station by DR and/or his mother. The Crown submitted the complainant did not give many different accounts about when she told DR and his mother, but her faulty memory about times is unsurprising in a historical child sex offence matter.
It is difficult to see how the complainant's evidence about having made her complaint to MR and MR's response can be a mistake or the product of a faulty memory. It was a specific and dramatic aspect of her evidence that she told MR, who was a supportive adult who believed her and took her almost immediately to the police station. Given that MR remembered that the complainant had come around and spoken to her son on two occasions when she was upset, it is unlikely that a mother would forget that a teenage girl, who she believed was her teenage son's girlfriend, had made such a serious complaint, eliciting such a shocked response that she took the child almost immediately to the police station to report the allegations. Although the courts see many accounts of child sexual abuse, it is unlikely to have been MR's experience that such serious allegations were so commonplace to her that she forgot them, even some 20 years later. This is another matter on which contrary evidence casts doubt on the truthfulness of the complainant's account.

[23]

The complainant's evidence that she gave a tape-recorded account to police and her mother then took the cassette tape

I have referred above to the complainant's evidence that on the occasion she was taken to the police station by DR and his mother she gave a statement to a police sergeant, who did not make a written or typed statement, but recorded what she said on a cassette tape and gave her a copy of the cassette tape, which she took home and which her mother later found and took.
Retired Detective Charles gave evidence that he did not recall the investigation of the allegations by the complainant which was allocated to him in March 1997, but he had access to police records of the investigation. He said that in 1997 the taking of a statement from an underage sexual assault victim had to be done by a person appropriately trained to do that. He said that he did not recall being told about an audio statement having been taken from the complainant at the beginning of the investigation, and if such a statement had been taken he thought he would have been provided with it, as the officer allocated to investigate the complaint. He said that in 1997 it was not the practice of police to tape record interviews with complainants.
Detective Anthony Wallace gave evidence that when he took over the investigation in 2017 he was given two cassette tapes from 1997 containing interviews of the applicant and the complainant's mother, a statement from DR taken in 2017, and some handwritten notes. He also had access to the police records known as "COPS entries" of the investigation. They recorded the following. The complainant attended Green Valley police station on 4 March 1997 and told police she wished to press charges against the applicant for having sexual intercourse with her in the presence of her mother and that she had fallen pregnant. On 10 March 1997 the complainant had gone to Campbelltown police station and made a report of an alleged sexual assault by the applicant and on 12 March 1997 the complainant returned to the police station and made a statement. The records indicated that on 20 March 1997 the investigation was allocated to Detective Charles. Detective Wallace had contacted police officers whose names were recorded in the 1997 records but they did not recall taking a report or statement from the complainant.
Detective Wallace said that amongst the material he was given from the 1997 investigation there was no recorded interview with the complainant. He said there were other parts of the brief of evidence which could not be located, including the retraction statement made by the complainant. He agreed that nowhere in the police records of the investigation was there any mention of an audio recording being made with the complainant. He agreed that although the statement of RS and the retraction statement could not be found, there were specific references in the COPS document to both of those statements having been made.
It was submitted on behalf of the applicant that, acknowledging exhibits do sometimes go missing from police custody, especially with the passing of time, that would not explain the absence of any reference to the taking of a cassette-recorded statement in the police records, and thus the evidence suggests it is highly unlikely a cassette-recorded statement was taken from the complainant. The applicant submitted that the complainant's evidence that after her mother was interviewed by police she came home angry, looked for the tape, found it and confiscated it, after which she made her written statement of 12 March 1997, was contradicted by the evidence in police records that the applicant and complainant's mother were interviewed by police by 5 and 6 April 1997 respectively, that is after the written statement was made, not after the cassette recorded statement and before the statement of 12 March 1997 was made.
The Crown submitted that nothing turned on whether the complainant gave a tape-recorded first version of her allegations to police shortly before making the 12 March 1997 written statement. The Crown submitted the complainant may have been mistaken about the process by which her statement was taken, that she may have confused a recording with the written statement she made, put in her bedroom, and which was taken by her mother. The Crown submitted it is unlikely the complainant would deliberately concoct an account about a tape-recorded statement to the police and that those details do not bear on her reliability about whether she was sexually assaulted by the applicant.
Although the police could find no copy of the cassette tape recording of the supposed first account by the complainant, the fact that the police records of the investigation included references to documents which had been taken or made and could not be found, but not an audio recording of the complainant, tends to suggest that the highly unusual procedure described by the complainant, of the police tape recording her complaint and giving her a copy of the tape recording, which her mother found and took, did not occur.
If this were the only evidence contradicting the complainant's account, it would not be fatal to the credibility of her evidence, but in combination with the matters referred to above, it does cast doubt on the reliability of her evidence.

[24]

The first witness statement by the complainant contained no reference to the allegations which were the basis of counts 1 to 3

In her written statement of 12 March 1997 the complainant made no reference to the first incident of assaults the subject of counts 1 to 3, but commenced with what was said to be the second incident which resulted in her pregnancy. The explanation she gave in evidence was that she did not refer to the first incident in her written statement because the first police officer she spoke to did not believe her.
It was submitted on behalf of the applicant that that explanation did not make sense and further, there must be a real doubt about the cassette recorded statement being made prior to March 1997. It was submitted on behalf of the applicant that this was a major and material inconsistency adversely affecting the complainant's credibility and reliability.
The Crown submitted that this omission from the complainant's 1997 statement of the first occasion she was sexually assaulted should be viewed in the context of the sexual abuse being ongoing, that it had occurred on numerous occasions, which the complainant estimated at 20 to 30, her age when she gave the statement, and that the complainant's evidence about the first incident was compelling.
It is now recognised and understood that complainants do not always give consistent accounts and may not remember all the details of an event in the same way each time they recount it, and that that does not necessarily mean that an account is untruthful.
On the other hand, the complainant gave her statement to police in March 1997, when she was not a very young child, about events she said had happened in the previous year. On her account the first incident of assaults was significant to her, including because she said it was her first sexual experience. In those circumstances, it is difficult to understand why it was omitted from the statement.
The explanation the complainant gave, that she omitted it because the first police officer she spoke to did not believe her, is not plausible. This is an omission which, in combination with the other matters referred to above, casts doubt on the reliability of the complainant's account.

[25]

The complainant's statement of 12 March 1997 contained no reference to the applicant and her mother immediately engaging in sexual intercourse after the applicant had sexually assaulted her on each occasion

The complainant agreed that in her first statement she made no mention of the applicant having sexual intercourse with her mother immediately after he sexually assaulted her on every occasion he sexually assaulted her. She said she did that to protect her mother, although she agreed she said in the statement that her mother invited her into the room and permitted the applicant to have sexual intercourse with her. She said on the one hand, the applicant and her mother having sexual intercourse in front of her made her feel uncomfortable, on the other hand she was too young to understand that and that she did not tell the police about the applicant and her mother having sexual intercourse because it was about what they did to her rather than about her mother.
The applicant submitted that the explanation given by the complaint for that omission from her statement was not convincing and the omission was another major and material inconsistency affecting the credibility and reliability of the complainant.
The Crown submitted that the complainant's explanation for the omission was plausible, that at the age of 15 the complainant would not regard sexual intercourse between her mother and the applicant as being of relevance to her allegations against the applicant and that she would seek to protect her mother. The Crown submitted that was a minor inconsistency of very little relevance.
The complainant's explanation for omitting from her statement her allegation that the applicant has sexual intercourse with her mother immediately after he had had sexual intercourse with her was implausible. This inconsistency was not about a minor aspect of her allegation. The distinction the complainant sought to draw between conduct directed at her and conduct by the applicant and her mother in her presence was not entirely convincing. This inconsistency, in combination with the others already referred to, contributed to doubt about the credibility and reliability of the complainant's evidence.

[26]

The complainant gave inconsistent accounts as to whether the applicant had continued to sexually assault her after the abortion on 1 August 1996

The complainant's evidence was that there was one further incident of sexual assault after her abortion, six weeks after the abortion, because her mother was careful to not permit it before then, in order to protect against the risk of the complainant becoming pregnant again. The complainant said after that incident, she ran away from home and so the sexual intercourse did not continue. She then said there was more than one further incident of sexual intercourse after the abortion, but she could not recall specific dates. The complainant agreed that in her 2017 statement she did not say that the applicant had had sexual intercourse with her after the abortion. She agreed that in a conference with the Crown Prosecutor in 2020 she was provided with both her 1997 and 2017 written statements and when asked if any of the sexual assaults occurred after the abortion, agreed she could have answered "no" in the conference, but in her evidence the answer was "yes". The applicant submitted that the inconsistent accounts give rise to substantial doubts about the alleged assault giving rise to count 7.
The Crown submitted that this was a minor inconsistency and that an expectation that a witness in such a matter will give a completely consistent account of events is unrealistic.
I accept that witnesses' memories may fail, including in what may be a stressful situation of conferring with the Crown's legal representatives. However, it is difficult to reconcile that memory lapse with the specific and detailed evidence by the complainant that she had been told by a doctor that she was at high risk of becoming pregnant after the abortion and must not engage in sexual intercourse, so that her mother did not permit the applicant to sexually assault her before six weeks after the abortion, and during the act her mother told the applicant to be careful to not make her pregnant again. This inconsistency is a factor which, in combination with the other matters already referred to, casts doubt upon the credibility and reliability of the complainant's evidence.

[27]

The retraction statement made by the complainant and the circumstances of her making it

The complainant's evidence about the retraction statement was that her mother made her go back to Miller police station after her first recorded statement and before the written statement she made at Campbelltown. Then the police officer who had taken her recorded statement at Miller told her she was lying in her statement and she was made to sign the retraction statement. Her evidence was to the effect that the police, who knew her mother and the applicant, believed her mother and the applicant in preference to her. She said the retraction statement was not true.
Retired Detective Charles referred to a COPS entry he made on 16 April 1997 which stated: "On 15/4/97 [the complainant] contacted me by phone. I had been attempting to contact her, however she had moved out of the DOCS refuge without notice and did not leave a forwarding address. She informed me that she had moved in with friends at… On 16/4/97 with SC Green I spoke to [the complainant] at the Green Valley police station. I informed her of the contents of the statement given by RS, in which he stated that he and a number of other young persons have been having sexual intercourse with her since March last year. After initially denying the contents of the statement, she eventually confirmed that she had had sexual intercourse with RS and the other three young boys mentioned in the statement, and stated that the complaint of sexual assault against [the applicant] and her mother… was not true. She would not give any reason for having made up the allegations."
Retired Detective Charles agreed that he had witnessed the statement he obtained from the complainant on 16 April 1997. He had first become involved in the investigation on 20 March 1997.
It was submitted on behalf of the applicant that the evidence of Detective Charles, including the information that at the time he spoke with the complainant she was living with friends, contradicted the complainant's account that she was taken to the police station at Miller by her mother, told by the police officer who had taken her first recorded statement that she would go to gaol if she was found to have lied in it, and forced to sign an untrue retraction statement.
The applicant submitted that the retraction statement was linked with the complainant being told by Detective Charles of the statement by RS, which contradicted a central plank of her allegations that the applicant had had sexual intercourse with her before any other person and had made her pregnant.
The Crown submitted that the retraction made by the complainant in 1997 when she was 15 years old does not significantly affect the credibility of her evidence given in the special hearing, which the trial judge had the benefit of observing and accepting. The Crown submitted that even if the reason for the retraction was because the complainant had lied to police about being sexually active with boys, that would not necessarily affect the credibility of her evidence given over 20 years later.
The complainant's account that she was taken by her mother to Miller police station to make her retraction statement appears to be inconsistent with the police records that she was living elsewhere when Detective Charles contacted her and spoke to her in April 1997. The complainant's account that she was accused of lying by a police officer, known to and acting improperly in concert with her mother and the applicant, may well be her memory of Detective Charles telling her about the contents of the statement he had obtained from RS, which was capable of casting doubt upon her allegation that the applicant had sexually assaulted her and made her pregnant. That the complainant retracted her allegations in response to detectives informing her about the statement from RS and its contents is not convincingly explicable on the basis that she was embarrassed to talk to police about her sexual activity with young boys. Rather it is another matter which casts doubt upon the credibility of the complainant's evidence about the alleged conduct of the applicant.

[28]

The evidence of Daphne Te Rure about the complainant's complaint to her was inconsistent

Daphne Te Rure gave evidence that she was the complainant's former sister-in-law. She said about 17 years before she was giving evidence in the special hearing, the complainant had told her that her mother's partner had sexually molested her, when her mother was absent, between the ages of 9 and 13. At 13 she became pregnant with his child, her mother took her to a clinic to have an abortion and then her mother knew. Her mother's partner then found out that her mother knew about his assaults of the complainant and after that, the partner abused the complainant in the mother's presence and her mother lay there waiting for her turn.
The complainant gave evidence that she had not made a complaint to Ms Te Rure in those terms, that Ms Te Rure had some animus towards her. She said she did not tell Ms Te Rure that the applicant assaulted her when she was nine because it did not happen, because her mother was not in a relationship with the applicant when she was nine.
Ms Te Rure was cross-examined by the Crown Prosecutor to the effect that she was mistaken that the complainant had told her the abuse by the applicant started when she was nine. She said several times she was certain she was right that the complainant said she was nine. She said she was definite that the complainant had said her mother had found out about the abuse around the time of the abortion, though the complainant thought her mother may have known about the abuse before then. She then agreed she may have made a mistake about her recollection about when the complainant's mother found out about the abuse. In cross-examination by counsel for the applicant in the special hearing, she agreed that in her statement she had said the complainant told her that her stepfather abused her when she was nine and that her mother found out about it, and then was present during the abuse after the abortion.
It was submitted on behalf of the applicant that Ms Te Rure's evidence that the complainant said the applicant had assaulted her between the ages of nine and 13 and in the absence of her mother, was inconsistent with the complainant's evidence, including that on each occasion of sexual assault her mother had called her into the bedroom and remained present while the applicant assaulted her and then the applicant and the complainant's mother had sexual intercourse. The applicant submitted that Ms Te Rure's evidence undermined the credibility and reliability of the complainant's evidence.
The Crown submitted that based on the complainant's evidence as to when the applicant became her mother's partner, Ms Te Rure must have been mistaken in her evidence that the complainant told her the assaults commenced when she was nine.
Ms Te Rure was giving evidence of a complaint she said was made to her many years before. She could have been mistaken, although she did not accept she was, and if she was, the mistake about the age at which she said the complainant said she was assaulted by the accused was a very specific mistake. It cannot be assumed that Ms Te Rure was wrong and the complainant was reliable. If this was the only evidence inconsistent with the complainant's, it would not have a significant impact on the complainant's credibility. However, it combines with the other matters referred to previously, to cast a doubt upon the credibility and reliability of the complainant's evidence.

[29]

The evidence of TL

I have referred to the complainant's evidence that her mother made her call TL, her mother's former partner, and tell him that she had been assaulted by the applicant and become pregnant as a result.
TL gave evidence with the assistance of an interpreter. He said when he and the complainant's mother were in a relationship and the complainant was a young child, he had a good relationship with her. He said he broke up with the complainant's mother because he found her with the applicant and the applicant bit his nose during the ensuing altercation. He said after that the complainant came once or twice to see him in the Marconi Club, crying because she did not want to stay with her mother and asking for money, and he gave her some money. He could not recall the year that occurred. He said he told her he could not help her, she had to stay with her mother.
When cross-examined by the Crown Prosecutor, he said he did not recall the complainant calling him and telling him that the applicant had raped her, she had fallen pregnant and she needed to have an abortion. He said somebody else told him that.
In cross-examination by counsel for the applicant in the special hearing TL was taken to his statement where he had said that the complainant had told him she did not wish to stay with her mother because the applicant put his hands on her and tried to take her shirt off and touch her breast, that he watched her all the time when her mother was not there, and she told her mother and she did not believe her. He agreed that was in his statement.
During further cross-examination by the Crown Prosecutor TL said "I'm 76. How am I going to remember everything about this dirty story?".
The applicant submitted that TL's evidence was another contradiction of the evidence of the complainant. The Crown submitted that although TL's evidence did not support the complainant, he should not be regarded as a witness of truth.
On one view it seems strange that TL, who had been replaced in the complainant's mother's affections by the applicant, who had bitten TL's nose in an altercation, would not remember that the complainant had telephoned him and told him that the applicant had sexually assaulted her and made her pregnant, if it had occurred. It also seems a strange thing for the complainant's mother to have done, in several respects. It does not have the ring of truth about it. However, when TL's evidence is read as a whole, it may have been adversely affected by some confusion, some lack of memory or some unwillingness to be involved. Therefore TL's evidence cannot be relied upon as evidence inconsistent with the complainant's.

[31]

Consideration of ground 1

I am required to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial: M v The Queen (1994) 181 CLR 487; [1994] HCA 63, however making allowance for the advantage enjoyed by the trial judge in seeing and hearing the evidence. Having conducted an assessment of the evidence I am of the view that, by reason of the inconsistencies, discrepancies and other evidence referred to above which contradicted the complainant's evidence, the trial judge, acting as the tribunal of fact, should have entertained a reasonable doubt as to proof that the applicant had committed the offences charged.
On my own assessment of the quality and sufficiency of the evidence, I have a reasonable doubt that the applicant committed the offences charged in counts 1, 4 and 7. I am not of the view that the advantage enjoyed by the trial judge in seeing and hearing the complainant give evidence was capable of resolving that doubt. I am of the view that the verdicts on those three counts were unreasonable because of the contradictions of the complainant's evidence by the multiple pieces of evidence referred to above. Therefore I am of the view that the verdicts on counts 1, 4 and 7 are unreasonable. The same conclusion would follow in respect of the alternative counts 2, 5 and 8, which related to the same alleged sexual assaults and were based on the same evidence.
Because ground 1 has been made out it is unnecessary to consider grounds 2 and 3 raised on behalf of the applicant.
I would propose that the findings that on the limited evidence available the applicant committed the offences the subject of counts 1, 4 and 7 be quashed and verdicts of acquittal entered in respect of counts 1, 4 and 7 and the alternative counts 2, 5 and 8. It is then necessary to consider whether any further orders need to be made about the applicant's detention.
On 25 February 2021, following her findings in the special hearing, Judge Baly SC nominated three limiting terms of 7 years, partially accumulated.
On 18 March 2022 her Honour ordered pursuant to s 27(b) of the Act that the applicant be detained in the BUPA Greenacre Aged Care Home, a place other than a mental health facility.
By s 42 of the Act the applicant was a forensic patient because he had been detained pursuant to an order under s 27. Section 52(4) of the Act provides that: "A person ceases to be a forensic patient if: (a) the relevant charges against the person are dismissed."
It seems to me that if by this Court's orders the relevant charges against the applicant are dismissed, he would no longer be a forensic patient by the operation of s 52(4).
If the parties seek any further orders in respect of the applicant's placement they have leave to apply to the Court.