DPP v Rossiter

1. John Henery Rossiter was found unfit to plead in a judgment published in this Court on 25 February 2025, see DPP v Rossiter (No 4) [2025] ACTSC 212. Accordingly, the accused has been subjected to a special hearing under s 316 of Crimes Act 1900 (ACT) (Crimes Act) by judge alone pursuant to an election filed on his behalf by the Guardian appointed when the accused was determined to be unfit.

2. The accused faces five charges as follows: (a) Count 1: that on or between 1 December 1970 and 1 December 1982 at Canberra in the Australian Capital Territory John Henery Rossiter indecently assaulted a female, namely [the complainant], and the said [complainant] did not give effective consent, her being under the age of 16 years. (b) Count 2: and further that on or between 1 December 1971 and 1 December 1982 at Canberra aforesaid John Henery Rossiter indecently assaulted a female, namely [the complainant], and the said [complainant] did not give effective consent, her being under the age of 16 years. (c) Count 3: and further that on or between 1 December 1971 and 1 December 1982 at Canberra aforesaid John Henery Rossiter indecently assaulted a female, namely [the complainant], and the said [complainant] did not give effective consent, her being under the age of 16 years. (d) Count 4: and further that on or between 1 December 1979 and 1 December 1982 at Canberra aforesaid John Henery Rossiter carnally knew [the complainant] being a girl of or above the age of 10 and under the age of 16 years. (e) Count 5: and further that on or between 1 December 1970 and 1 December 1982 at Canberra aforesaid John Henery Rossiter being an adult, engaged in a relationship with a child, namely [the complainant] and that involved more than one sexual act.

3. I accept that the procedures to be followed in a special hearing are those outlined by Mossop J in R v Chute (No 10) [2019] ACTSC 73 at [6] to [12]: [6] The special hearing has been conducted as a trial by judge alone as a result of an election made by a guardian appointed by the Australian Capital Territory Civil and Administrative Tribunal (ACAT): see R v Chute (No 4) [2018] ACTSC 259 at [6]-[7]. At the special hearing the accused is taken to have pleaded not guilty: Crimes Act, s 316(8). Notwithstanding his unfitness to plead, the accused was legally represented at the special hearing and his unfitness was not taken to be an impediment to that representation: s 316(6)-(7). The purpose of the special hearing as articulated in s 316(9)(c) is to ensure, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, that he should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offences charged. [7] The verdicts available at a special hearing are described in s 317. If the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged then the judge is obliged to find the accused not guilty of the offence charged. On the other hand, if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged, the finding is not a basis in law for recording a conviction for the offence charged and, unless the accused becomes fit to plead after the special hearing, the finding bars further prosecution of the accused for any offence in relation to the conduct: s 317(3)-(4). [8] Prior to its amendment in 2004, the requirement in s 317 for a verdict of non-acquittal was that the accused person “committed the acts that constitute the offence charged”. The confusion arising from the use of this form of words and the terms of the relevant explanatory memorandum was described by Crispin J in R v Ardler [2003] ACTSC 24; 175 FLR 272 at [13]-[29]. A reference appeal was brought by the Crown in order to determine the correctness of the approach taken by Crispin J: R v Ardler [2004] ACTCA 4. However, after the appeal was argued, but before it was decided, the Crimes Amendment Act 2004 (ACT) came into effect. That Act relevantly substituted for the words “committed the acts that constitute the offence charged” the words “engaged in the conduct required for the offence charged”. It also defined the term “conduct” and “engage in conduct” by reference to the definition of those terms in s 13 of the Criminal Code 2002 (ACT). Those definitions are: conduct means an act, an omission to do an act or a state of affairs. … engage in conduct means- (a) do an act; or (b) omit to do an act. [9] The definitions in s 13 of the Criminal Code do not pick up the concept of “physical elements” in s 14 and hence the requirement for voluntariness in s 15. Notwithstanding that, it does appear to have been the legislative intention to incorporate the requirement for voluntariness in s 15. The explanatory statement for the Crimes Amendment Bill (No 2) 2004 provided, relevantly: The term “engage in conduct” is inserted. The term is derived from the existing definition under the Criminal Code 2002 and shall have the same meaning as that given to the term under the Code. This definition includes only the physical elements of the offence, and includes omissions. … Clause 5 substitutes the term “engage in conduct required for the offence charged (or an offence available as an alternative to the offence charged)” for the current phrase “committed the acts that constitute the offence.” This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The prosecution is not required to establish intent, or any mental element, of any offence. [10] The reference to physical elements is apt to pick up the requirement for voluntariness in s 15. In the present case I have proceeded on the basis most favourable to the accused, namely that the prosecution needs to prove that the accused did or omitted to do an act and that the conduct was voluntary. Examples of involuntary conduct given in the Criminal Code include spasms, convulsions or other unwilled bodily movement, acts during sleep or unconsciousness or an act done during impaired consciousness depriving the person of the will to act. The prosecution is not required to prove intention or other mental element for the offence. [11] For offences of the type charged in the present case, s 318 describes the powers of the court if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. Section 318(2) provides: (2) The Supreme Court may make the orders that it considers appropriate, including— (a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. [12] It is significant to note that the use of the word “may” indicates that the making of orders is discretionary and that the use of “including” indicates that the range of orders that may be made is not exclusively defined by paragraphs (a) and (b). That contrasts with the provisions of s 319, which relate to non-acquittal at a special hearing in relation to a “serious offence”, where the Supreme Court is obliged to make one or other of the particular orders set out in s 319(2). Elements of the offences

4. Taking into account the need to prove the conduct only together with it being voluntary, I accept that it is necessary for the prosecution to prove the following elements of each charge beyond reasonable doubt.

Count 1 to 3: elements of indecent assault (a) The accused committed an assault; (b) The assault was committed on a female; (c) The accused voluntarily committed the assault; (d) The assault was indecent according to the standards of morality and decency held by ordinary members of the community; and (e) The assault was committed on a person under the age of 16 years. Count 4: elements of carnal knowledge (a) The accused carnally knew a girl; (b) The accused voluntarily carnally knew a girl; and (c) The girl was above the age of 10 years but under the age of 16.

Count 5: elements of persistent sexual abuse (a) The accused was an adult; (b) The accused engaged in a relationship with a child; (c) The accused voluntarily engaged in a relationship with a child; and (d) The relationship involved more than one act.

General directions

5. Section 316 of the Crimes Act dictates that a special hearing must be conducted as nearly as possible to an ordinary criminal proceeding.

6. Section 68C of the Supreme Court Act 1933 (ACT) requires that in a trial by judge alone, reasons must be given for the verdict, which include the principles of law applied by the judge and the findings of fact on which the judge relied. Further, if a territory law requires a warning or direction to be given or a comment to be made to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict. The importance of including the principles of law as well as the warnings and directions that would be given to a jury in these reasons has been emphasised by the decisions of the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250 and AK v The State of Western Australia [2008] HCA 8; 232 CLR 438.

7. I will now identify the principles of law which I have applied and the general directions that would have been given to a jury had one been determining the outcome of this matter.

8. The prosecution bears the burden to prove the case against the accused, beyond reasonable doubt. That burden does not ever shift to the accused. The accused is presumed to be innocent unless and until the prosecution establish that the accused is guilty beyond reasonable doubt.

9. It follows that if I am left unable to decide whether the prosecution has proved its case beyond reasonable doubt, even though I might suspect the accused committed the offence, the accused is entitled to the benefit of that doubt and I cannot conclude that he is guilty of the offence.

10. The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. I must determine the relevant facts, according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. In assessing the evidence, I must apply my common sense and life experience. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion into the decision-making process. I must determine whether each of the witnesses is a reliable witness. That is whether the witness has an accurate memory of the event, about which the witness has given evidence.

11. I am not required to accept the witness’ evidence entirely or to reject a witness’ evidence entirely. I can accept part of a witness’ evidence if I consider I am able to rely upon it and reject the rest of their evidence if I consider I am unable to rely upon it.

12. I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

13. The accused did not give evidence in these proceedings. There is no obligation on him to give or call evidence in a criminal trial and therefore has no obligation in a special hearing. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case, nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.

14. These directions and principles are of course qualified by virtue of the matters referred to above in [3] as to what I must determine in proceedings which are conducted as a special hearing.

15. The complainant’s mother was not called by the prosecution to give evidence at trial. I may take the fact that there was no evidence from that witness into account when I determine whether the prosecution has proved the guilt of the accused, beyond reasonable doubt. I must not speculate about what that witness would have said if she had been called. However, I am entitled to consider that there was no evidence from a particular person, in this case, the complainant’s mother, in deciding whether or not there is a reasonable doubt about the accused guilt. I will return to this topic when discussing the evidence.

Expert evidence

16. In this case, Dr Catherine Sansum was called as an expert witness. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.

17. I direct myself that the value of any expert opinion is dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analyses the material upon which the opinion was based on the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge. The expert evidence of Dr Sansum was admitted in this case, to explain responses to, and complaints of, sexual abuse by children and changes in behaviour consequent upon such sexual abuse. Her evidence included evidence particularly in relation to delay in any complaint made.

18. That evidence was led to support the credibility of the complainant due to the delay before she made any complaint to friends, family, or the police. By providing an explanation of the psychological reasons for, and empirical evidence in relation to, delayed complaints and the failure to make a complaint approximate to the time of the alleged abuse. The evidence is capable of supporting the credibility of the complainant.

19. However, I direct myself that if, having given the matter careful consideration, and taking into account defence counsel’s submissions in respect of her evidence, I do not accept the evidence of Dr Sansum, then I do not have to act upon it. This is particularly so where the evidence is of a general nature and the expert has never met the complainant and hence may not accord with the facts in relation to the complainant that I find. I am also to a degree entitled to take into account my own common sense and my own experiences if that is relevant to the issue upon which the expert evidence relates.

20. Having said that the expert evidence of Dr Sansum was admitted without objection and was not challenged. Accordingly, if it is not inherently unbelievable, I consider that I would need to have a good reason to reject it, for example, because it does not fit with other facts which I have found to be proved.

21. If I accept the evidence of Dr Sansum, I am entitled to use it to support the complainant’s credibility in relation to her evidence about the accused’s conduct.

22. Some of the evidence in this trial, including evidence of the complainant and the witnesses (Cheryl Rossiter and Peter Rossiter) was given by audiovisual link from a location remote from the courtroom connected to these proceedings. This is a usual practice. I must not draw any inference adverse to the accused and I must not attach any greater or lesser weight to the evidence of the complainant because this practice was followed.

23. Similarly, the complainant was accompanied by an intermediary and a support person was present in the remote witness room when she gave evidence. I give myself the same direction that I have referred to in the previous paragraph herein.

24. The complainant did not make immediate complaint regarding the alleged offending against her by the accused. Pursuant to s 80B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), I warn myself that where the complainant made no complaint about the alleged offence or that there was a delay in making a complaint as occurred here that the absence or the delay in making the complaint does not necessarily indicate that the allegation that the offences were committed a false. There may be good reasons why victims of sexual offence may not make or may hesitate in making a complaint about the offence. I will return to this later when I discuss the evidence.

Complaint evidence

25. Matthew Green and Deborah Jennings gave evidence of the complaint made to them by the complainant that the accused had sexually interfered with her.

26. I can use that evidence as some evidence independent of the complainant about what occurred. However, I do bear in mind that the complaint made to Mr Green in 1982 was that the accused had masturbated and performed oral sex on the complainant. The witness was unclear as to whether penetration had occurred.

27. Ms Jennings remembered the complainant telling her that the abuse consisted of oral sex and one instance of vaginal penetration.

28. I note that I have not regarded the complainant’s diaries on and after 2007 (Exhibit P1- 4) as any evidence of complaint. The counsel for the prosecution submitted that I can use the evidence in the diaries as some evidence of prior consistent statements. On the other hand, counsel for the defence submitted that I should use some of the extracts of the diaries (e.g. Exhibit D1) as evidence to suggest that the complainant is an unreliable and untruthful witness.

29. I have not relied on the diaries to support the complainant’s account given that the diaries only came into existence years after the events that are the subject of the charges and on the complainant’s own admission, the diaries represent streams of consciousness and other reflections during her treatment by a psychiatrist.

The application to admit tendency evidence

30. The prosecution filed an application to adduce tendency evidence at the trial.

31. The further amended tendency notice filed by the prosecution identified 26 separate incidents. A number of the incidents referred to in the notice are charges as they are encompassed by the charge in count 5 of persistent sexual abuse of the complainant. For convenience, I have annexed a schedule at the end of the judgment identifying the 26 incidents sought to be led by the prosecution as tendency evidence.

32. For the purpose of considering this application, I consider that the evidence of admissions in the accused’s record of interview with the police which are described in the schedule as incidents 21, 22, 23, 24, 25 and 26 is evidence which supports an inference that the accused has a tendency to have a particular state of mind and to act in a particular way. That evidence together with the evidence as a whole supports a finding that the accused did act on that interest by sexually assaulting the complainant when he was alone with her.

33. I direct myself that these admissions do not prove that the accused acted upon that interest with respect to each and every charge or that he is just the sort of person who would commit these offences. Further I make it clear that although that evidence supports a finding that the accused interfered with the complainant in the ways she alleged, I acknowledge that I must be satisfied beyond reasonable doubt of the accuracy and reliability of the complainant’s evidence with respect to each and every one of the elements of each and every one of the charges before I can be satisfied of the accused’s guilt.

34. Apart from the incidents I have referred to in [32], I have concluded that I do not need to consider the application to admit any of the remaining incidents (1 to 20) for any tendency purpose. However, that evidence is admissible together with the tendency evidence I have referred to as relevant to the complainant’s credibility and reliability. It helps to explain the context in which the complainant made the allegations, the reason she is unable to recall specific details and dates of all occasions and to explain why she submitted to the accused’s advances so readily without objection and did not complain about it at the time.

35. As it will become evident that I am satisfied that the accused engaged in the conduct required for each of the offences charged on the indictment without resorting to tendency reasoning, I do not need to finally determine the prosecution application for the evidence of the incidents 1 to 20 in the schedule to be admitted and relied upon to establish a tendency on the part of the accused.

36. I direct myself that apart from the use of the evidence as explained in [32] to [34] above, I have not used any of the evidence about the incidents 1 to 26 to reason that the accused is just the kind of person who would likely commit the offences charged.

The prosecution case

37. The prosecution case is that the accused sexually abused his biological daughter, the complainant, from 1970 to 1982. The sexual abuse commenced when the complainant was about five and ceased when she was about 14 years old.

38. The accused engaged in a protracted period of grooming, starting with cuddles, hugs and kisses and ultimately progressing to digital penetration, culminating in an act of penile-vaginal intercourse. The offending ceased after the last occasion which was the subject of count 4 on the indictment, namely the charge of carnal knowledge.

39. I heard evidence from a number of witnesses at the special hearing, from the complainant, from Mrs Iris Green, Cheryl Rossiter, Stephen Rossiter, Peter Rossiter and Senior Constable Jayalla Cox.

40. By consent, a number of documents were tendered, including a report by Dr Catherine Sansum, dated 29 January 2024, a transcript of a conversation between Matthew Green and Senior Constable Cox on 8 December 2022, and a transcript of a conversation with Deborah Jennings on 30 March 2023. None of these three witnesses were required for cross-examination.

41. A number of other documents were also tendered by consent, including a number of diary entries written by the complainant on various dates, long after the offences were alleged to have been committed, and a letter signed by the complainant’s mother, Gwennyth Rossiter, dated 1 July 2020.

42. Finally, a record of interview between Senior Constable Cox and the accused in Queensland on 19 January 2023 was tendered together with a USB which was played in Court.

The evidence

43. In the evidence in chief interview recorded on 9 August 2022, the complainant gave a detailed account of the nature of the acts engaged in by the accused after he first began to kiss and cuddle her in the lounge room of the house.

44. When the complainant was asked about her recall of the first time anything happened, she said the following: Q72. Yeah okay. All right. So if you want to – sorry. If you can just tell me about the first time you recall anything happening with your father, or dad – sorry? A Yep. Um, so I don’t know what age I was. Um, I – I – I think I was – I know I was little. Um, I remember sitting on a couch similar to this couch, and it was brown and kind of like a – like, we’re talking – it was the 70s, so it was kind of, like, brown woollen checky material. Um, and my dad, um and I were sitting on the couch together, and he started – you know, he had his arm around me. He started cuddling me. Um, he started kissing me, telling me what a pretty little girl I was, and, um, we used to just do a lot of hugging and, um, I think that it went on for a long time, in terms of the hugging and the kissing and the talking. Um, I – you know, I – it’s been something that’s tortured me all of my life really, not knowing exactly when it started. Um, I don’t know whether I’m allowed to talk about something that my brothers told me that he can remember.

45. When asked to describe the kissing, she said the following: Um, well, it started with just hugging and – but long hugs. And kissing that went from normal kissing to more intense kissing. So kissing with mouths open and, um, him putting his tongue in my mouth. And I can even remember that I kind of giggled and was, like, you know, probably grossed out, as a child. Um, but I remember that – the feeling of him putting his tongue in my mouth. And he told me that I wasn’t to tell anybody. He told me that I – that daddy would go to jail if I told anybody, and that that would, um, break up the family.

46. That evidence is the basis of the charge in count 1 of indecent assault.

47. The complainant said that the sexual acts progressed from kissing and cuddling to other sexual acts which generally occurred in the lounge room, as that was where the heater was.

48. The evidence given by the complainant which is the basis of the second count of indecent assault was as follows. Um, and my memory of that is that generally the TV was always left on, and that it was, um, night time. I also remember sometimes during the day, because I remember it being quite crisp and cold. Um, but generally the lounge room floor. Um, I remember he, um, started having me naked and, um, taking my clothes off, and he would take his clothes off. Um, and he talked to me a lot about sex and, um, yeah, I got a sex education really. Um, and he then started, um, talking to me about how I would grow breasts, and he used to, um, then – you know, it progressed to putting, um, fingers inside of me. Um, he used to say to me, ‘I can put one finger inside of you now, but when you get older I’ll be able to put more than one finger inside of you.’ Um, he used to – um, he used to give me orgasms with his fingers.

49. The complainant gave the following evidence which is the basis of the third count of indecent assault as follows. - - - is that when I was 14, um, my dad had started, um – like, lots of things happened. There was pornographic magazines in my dad’s cupboard. They were kept up high in his – his cupboard. And we used to look at the pornography together. And he used to talk to me about doing certain things that were in the magazines. So I remember that we used to do, um, what they call 69ers on mum’s bed – on mum and dad’s bed. Um, I remember that because I remember him wanting to put his dick in my mouth, and I – I did, but I hated it, and I told him that I hated it. Um, again I can’t give you timeframes, but I’m thinking that I was more around the 11, 12, 13 mark.

50. The complainant recalls engaging in sexual acts with the accused on a frequent basis as much as every week or every fortnight. However, she told police that she has difficulty remembering specific incidents.

51. The sexual acts ceased when the complainant was approximately 14, and she told the accused that she did not want to participate in sexual acts with him anymore.

52. When the accused wanted to engage in sexual acts with the complainant, he would often say to her “do you want to play with me?” Or “do you want to play with dad?” When she was younger the accused used to refer to himself as “daddy” and said, “do you want to play with daddy?” Prior to engaging in sexual acts, the accused undressed the complainant and undressed himself until they were both naked.

53. The accused called the complainant “darling” and before engaging in any new sexual acts he would ask her, “can we try this?” and “can we do this?” During the acts, the accused talked to the complainant about sex. He told her that she would grow breasts and hair on her vulva.

54. The complainant was not able to particularise when these offences occurred except that it was regular. They were often at night and when no one else was home.

55. She said that during the period when the sexual acts occurred, there were regular occasions when her mother and brother Peter would be out of the house and she and the accused would be alone in the home together. The complainant’s mother did not work, however, she regularly attended choir practice on Friday nights and the entire family used to attend church on Sunday mornings.

56. At some stage the accused stopped going to church and told the complainant that she no longer needed to attend Sunday school if she did not want to. The complainant thought this was exciting and she stayed at home with her father on Sunday mornings while the rest of the family went to church.

57. At some stage, her brother Peter took a part-time job at a health food store and was out of the house at the time of his shifts.

58. The complainant described one particular episode which she recalled because her brother Stephen came into the room and interrupted them. Her evidence about this incident is as follows. A The only thing I remember was being on the floor with my dad, that we heard the door go – the back door, the laundry – like, the door coming in to the back door into the kitchen through the laundry. Q151. Mm-hmm. A Um, and so we heard the door go bank, and we were both just shocked because, you know, that meant someone was home, and we were naked in the – he mustn’t have been naked though, because – anyway, I was – so I was naked - - - Q152. Yep. A - - - because he said to me – we heard the door. I looked at him horrified, and he said, ‘Quick, run down to the bathroom.’ So I did. And I remember that I had something – my clothes or something that I was grabbing as I ran down the hallway. Um, and I ran down the hallway to the bathroom, just petrified that we’d been caught. And I heard Peter – ah, not Peter – Stephen this was, my second eldest brother, Stephen. I heard Stephen and dad, you know, talking very quietly. I didn’t hear what was said. Um, so I can only tell; you what – because I’ve now talked to my brother about this. And he’s told me what he remembered.

59. The complainant described an occasion when she and the accused were on the bedroom floor and she was on her back. The accused was on his knees and tried to penetrate her. He had no trousers on, a shirt which was pulled up and he penetrated her vagina, but it only went in halfway. The accused was very intense during this and was almost like shaking. The evidence is the subject of Count 4 of carnal knowledge. She told him that it wasn’t happening and she was not going to do it anymore.

60. Apart from another incident in the hallway of the home when the accused was naked and asked her, “do you want to come play with daddy?”, she said that that was the last time the accused interfered with her.

Iris Green

61. Mrs Iris Green, the mother of Matthew Green, was called. She is a friend of the complainant’s mother and said that they both met when they worked in a typing pool together. She was not cross-examined apart from a conversation with her friend Gwennyth Rossiter, the complainant’s mother, years later “when it all came to a head” which she thought was in about 1980. She said she has had no conversation with the complainant or anyone else about this matter.

Stephen Rossiter

62. Stephen Rossiter gave evidence about an incident he witnessed when he was still living at the house at Dickson in a caravan out the back. He was asked if he had ever returned to the house when it was just the complainant and his father, the accused, alone. He said yes.

63. When he was asked whether there was anything untowardly going on, he replied: Yes. Yes, I walked in and my sister was lying face down on an eiderdown, naked, and my father was sitting in a lounge chair, and they were having a conversation. I walked in and I said, 'What's going on here?' My sister got up, ran down the hallway. She ran into her bedroom. I followed her in and she told me to go away. So I went away. I went back to my father and I said, 'What's going on here?' And he just said he was checking a mole on her back.

64. He was also asked about another incident when the complainant was a little girl and she sat on Peter’s lap and started to kiss him and then moved to Stephen’s lap and started to kiss him.

65. His evidence was: Okay. [The complainant] has told police about an incident where she was in the lounge room and she sat on Peter's lap and started to kiss him and then moved to your lap and started to kiss you. Do you remember that incident?---Yes. What happened?---She was play acting what she saw on TV, right? I don't recall kissing her on the lips. I think she's just kissing us on the side of the face and she was play acting what she'd seen on TV or something.

66. He was asked how he knew that she was playacting. He said it was because someone, either Peter or his father, who were present at the time had said that she was just copying what she’d seen on TV.

67. He did not recall an incident when he walked into the house and saw his father standing in the hallway with his penis exposed.

Cheryl Rossiter

68. Cheryl Rossiter, the wife of Peter Rossiter, told the Court she has had no contact with the accused since 1995.

69. She said she first became aware of the complainant’s allegations at the time of the accused’s separation from the complainant’s mother. All she was told was that the accused had interfered with the complainant. She didn’t need or want to know any more.

70. She has had very little to do with the complainant’s mother in recent times.

Peter Rossiter

71. Peter Rossiter is the elder brother of the complainant by approximately seven years.

72. He said he first became aware of the allegations made by the complainant in 1995 when his parents split up. That upset him a lot. He said, In 1995, my mother and father split it up, and at that time, I was made aware of a statement that she was interfered with. Now, that's something [the complainant] said, 'I was abused,' but there was never any definition or - you know, it was never gone into more fully other than the words from [the complainant] that, 'I've been abused,' and my mother said that she believes that [the complainant] had been interfered with. They were - they were the two terms used and that was in '95. So that was my first time I'd known any of - well, I was gobsmacked that my parents were splitting up. I thought I lived in a very well-sorted family.

73. Peter Rossiter said that on the same day that he was told that his parents were splitting up, he went to the house and was confronted with his mother and the complainant talking, gibbering, trying to tell him something. He then said that in the first conversation he had with the complainant after his mother had told him what was going on, the complainant remarked that “I could get $20,000 out of this. That’s more than I’ll ever have”. When he was asked whether he had ever mentioned that to Senior Constable Cox in his interview with her on 2 March 2023 he said thought he did.

74. Peter said that on the same day that his father was admitted to hospital after a suicide attempt, he visited him there and asked his father if what he had been told by his mother was correct. He gave the following evidence, And did you discuss with him what your mother had told you about interfering with [the complainant]?---Yes, I did, from the point of view of I asked him just that, if I've been told this, and he said, ‘Yes, that's true’. And my next question to him, ‘Was there anybody else?’ Because I've got young nephews and a young niece living in Canberra. Whether - in fact, I think the niece probably wasn't born while Dad and Mum lived in Canberra, so probably irrelevant, but there was certainly a range of children in the family, including my own young son and daughter, who - you know, we never knew any of this, so we - we used to leave our children with - with my - my parents when they lived in Brisbane, you know, being completely oblivious to the fact that there was anything untoward. So I wanted to qualify with him whether there was anyone else that was at risk because I didn't know. I knew nothing about this circumstance at all. So it was really the safety of others. I had no real concern for Dad's welfare, to be honest, at that stage, other than the fact that he was in hospital and he was being looked after as best as possible. But he agreed that he had interfered with your sister?---Correct, just like his statement reads. I think it's all there. Did he expand on what that meant?---The only thing he said to me was, ‘It was kissing and touching’, and I asked him about, ‘Was there anything else’, and he said there was - there was nothing, there was never anything other than kissing and touching, but that was it.

75. He said he had read statements from others in this matter, including from Matthew Green, Deborah Jennings, the complainant’s statement and his father’s record of interview.

76. He said he had some conversations with his mother over the years about the complainant’s allegations. Some of the complainant’s allegations he thought were quite stupid, for instance, her claim that she was abused when her mother went to choir because Peter was always home watching TV with them on Friday nights having cups of tea and cinnamon toast.

77. He said he only read the first two or three lines of the complainant’s letter to him in 2009 before throwing it away. “… yes, another Mills & Boon, and threw it away, so I haven't actually read it”.

78. He said his relationship with his mother had improved considerably since his mother went into care in 2022.

79. Peter Rossiter gave an account of the incident when the complainant sat on his lap and Stephen’s lap. Do you recall any incident where [the complainant] sat on your lap and tried to kiss you when she was a child?---Yes. She had this weird thing that she used to call TV kisses or movie kisses, I think, from watching, you know, Clark Gable and all those sorts of people in those days. And, you know, she used to try it on with - with - with us occasionally. You know, when she was saying goodnight, she'd - she'd - she'd want to give us a movie kiss, and we'd pretty much, you know, rebuff this - this weirdness. But, yes, I remember that, yes. And she told you it was movie kisses?---Yes. Well, they were called TV kisses or movie kiss, rather than just a regular, you know, kiss goodnight kind of stuff, you know. So, you know, we were - none of us boys were going to be engaged in any of that. So I don't think - but I don't think that's abnormal.

80. He said that he believes that the complainant typed the letter signed by Gwennyth Rossiter leaving her bank accounts and other things to the complainant. He said there was more than one version of that letter. The version he saw did not have the sentence in it, leaving the Commonwealth bank accounts et cetera to the complainant.

81. He believes that the complainant was manipulating his mother. He said, Well, you said that [the complainant] was manipulating your mum - - -?---Yes. - - - about labouring the point about the sexual abuse she suffered?---Yes. That's where that line comes from in that will and testament letter; yes?--- Yes. I'm saying that Mum wrote that as a belief in what [the complainant] was telling her. Yes?---I don't believe - well - that - I think the source of the belief that [the complainant] was - was abused doesn't come from anybody but [the complainant]’s story. But didn't you give evidence earlier that your father admitted to your mother that he had interfered with [the complainant]?---Correct. Record of interview with the accused

82. The accused spoke with the police in a formal record of interview on 19 January 2023.

83. I heard and saw what the accused said in that interview. Specifically, the accused made a number of admissions in particular that: • the accused touched the complainant's genitals when she was 6. • the accused interfered with the complainant's genitals on a number of occasions while his wife was out. • the accused made an "advance" on the complainant to which she submitted, and he ejaculated as his son came in. • the accused touched the complainant's venus mound under her underwear as she sat on his lap in the dining room looking at the spinning record player.

84. In the record of interview, the accused also said that:

• he just touched the complainant's genital region. • the genitals looked babyish like clean flesh. • it occurred when his wife was absent. • when the complainant got in bed beside him she was aged about 6, and he used his right arm and hand to feel her vagina, and this occurred when the complainant accidently laid on top of his hand, exactly on his fingers, and he did not touch her vagina but touched the little front - the venus mound, and that he was aware he should not be touching her. • he never touched the complainant's vagina, but he touched her venus mound. • he was one of those creatures, that was born with the wrong amount of sexual drive. The accused went on to say this was not to the criminal extent, but it caused him to have urges and compulsions, and has not had as much restraint as he should have. • when he touched the complainant, nothing happened to her body and to his knowledge she did not make any sounds and was totally unresponsive. • he denied using any other parts of his body to touch the complainant. • he may have gotten the complainant to touch his penis when she was very young, but otherwise she was totally disinterested.

Matthew Green

85. Matthew Green’s interview with the police on 8 December 2022 was tendered without objection.

86. He told the Court that sometime in 1982 the complainant confided in him that she had been abused by her father. He said, Um, so sometime in 1982, um, [the complainant] confided in me that she had been, um, you know, had been abused by her father. Um, again she wasn’t – from my memory she wasn’t exactly sure what age it began, case I remember asking. Um, I think she seemed to think it was around – had begun around the age of five or six and that she had sort of suggested to me that it finished by about the age of 12, um, from memory of what she told me. Um, but you know, I mean, like I said I – I don’t know how – I don’t know how accurately she, you know, did or didn’t know the – the, you know, the times that it happened. But that was what – when I asked, you know, when that happened, when – when – what time it had started and what time it had finished, they were the years that she – that I seem to remember she said.

87. All he could remember was that they were in the bedroom of their house at Dickson. He was very shocked and stopped going around to the complainant’s house.

88. A few weeks or months afterwards, the accused and the complainant’s mother came around to his house. He said the complainant’s mother asked him why he wasn’t coming around and what the problem was.

89. The accused said that if he didn’t start to come around the accused was going to kill himself and that it would be “on his head” (meaning Matthew Green). Matthew Green thought that the mother seemed to be in denial about the whole thing. He thought it was all a bit strange, like no one really wanted to deal with the situation. After the incident when the accused came to his house and threatened to kill himself, Matthew Green told his parents. They were supportive of him. After that Matthew said he felt like it got brushed under the carpet.

90. He asked the complainant questions about what had happened. However, he said he never really got to the bottom of whether there was actual penetration. It seemed to be more often that he performed cunnilingus on her and she sometimes masturbated him. It sounded like it was quite a common occurrence whenever the two of them were alone at home together. He found the whole thing weird that they would carry on almost like pretending it didn’t happen. However, he acknowledged that it must have caused lots of psychological damage to the people.

Deborah Jennings

91. Deborah Jennings had an interview with the police on 30 March 2023, which was also tendered without objection.

92. She told the Court that the complainant and she were friends and met when they worked together at a union. Between 1994 and 1996, the complainant confided in her that she had been abused by her father for quite a few years.

93. She spoke about a visit to Peter Rossiter’s house when his mother was staying with them. She said they got a very poor reception and that they were both extremely dismissive.

94. The complainant told her that the accused only penetrated her once that it was all pretty much oral, and it was fairly ongoing.

95. When Ms Jennings was asked what ages the complainant talked about when these things were happening, she said: Yes. Um, I’m trying to remember that. I know she was reasonably young at the beginning and I think she was about 11 or 12, maybe towards the end. Dr Catherine Sansum

96. Dr Sansum prepared a report in response to five questions posed by the prosecution. Her report dated 29 January 2024 was tendered without objection and she was not required to cross-examination.

97. The evidence was based upon her specialised knowledge derived from her training and experience relevant to the credibility of complainants in general. It was generalised evidence concerning the dynamics of child behaviour in relation to sexual abuse by a child’s biological father, common reactions of children during an incident of sexual abuse and common patterns of disclosure and reporting of child sexual abuse.

98. Of particular significance in relation to the assessment of the complainant’s credibility was her evidence as to why some children who have been sexually abused may delay reporting that abuse. Dr Sansum wrote, Children often grapple with the issue of whom to disclose. Children who disclose in childhood are most likely to disclose to a friend or their mothers. In Kogan’s study (2004) girls aged 7- 13 were most likely to tell parents while older children (14-17) confided more frequently with their peers. It is not unusual for disclosures of child sexual abuse to occur over time. Children / adolescents may test the reaction of others before revealing all that has happened to them. A little information may be disclosed and if the child / adolescent is believed and the person to whom the child discloses reacts in a helpful manner, more information and detail is later shared by the child. The response of the person to whom a child discloses may upset the child and contribute to a retraction of the child’s disclosure. The response of the person to whom the children discloses may be to silence that child and protect the family or the perpetrator. The response may be one of disbelief, blaming or rejection of the child. If children are not believed or if they experience a negative reaction to their disclosure they are more likely to feel blame for the abuse. … Children / adolescents who are victims of sexual abuse usually do not disclose at the time of abuse for a variety of reasons. These include the following: • The perpetrator is in a position of a power / authority. • They may be frightened of the perpetrator. • The child / adolescent may have been threatened to maintain silence. The threats may be of death or harm to the child, or threats that no-one will believe them, that a sibling or parent will be hurt if they tell, or they will be sent away or no longer loved, or threats of disruption to the family, including that the perpetrator will go to jail. • Some children / adolescents are embarrassed or guilty about the act or acts and some may feel that they contributed to what happened to them. • The child / adolescent does not feel safe enough to tell someone. There may be no safe person for that child. The child may fear getting into trouble. The child may fear the impact on her or his family. • The child / adolescent may feel to some degree responsible for the abuse and when children feel they are to blame they are less likely to disclose. • The child / adolescent may not know what they are engaging is wrong because their sexual naivety and because children are trained to obey adults. By definition, sexual abuse is the involvement of dependent, developmentally immature children and adolescents in sexual activities, which they do not fully comprehend. • The child may believe the perpetrator’s explanations. For example, a father may say, “All fathers do this.” “It is because I love you so much.” The activity may be introduced as play or as education. • It may be physically pleasurable for the child / adolescent. • Perpetrators must ensure secrecy to continue abusing the child / adolescent. There may be implicit secrecy. “This is our special time.” The power of treats and gifts may ensure silence. … • Victims of parental abuse may be less likely to disclose due to: o the increased social stigma surrounding incest. o concerns regarding the impact on the family and potential legal consequences. o many siblings worry about what will happen to the offending parent if the abuse is reported; may victims report they still love the offender but they want the abuse to stop. o there is a concern regarding familial relationships and legal consequences.

99. The evidence of Dr Sansum has assisted me to assess the complainant’s evidence. It is supportive of acceptance of the complainant’s evidence. I find no reason to reject or reduce the weight to be given to the complainant’s evidence by reason of the delayed complaint. Mrs Gwennyth Rossiter

100. Given the state of the family dynamics at different times over the past 20 years, but especially given the evidence I heard about the family dynamics at the current time, and the fact that the complainant’s mother has been in care since 2022, I decline to draw any inference one way or another from the fact that the prosecution did not attempt to call her.

Analysis of the evidence

101. I had the opportunity to observe the complainant over several days, both in the evidence in chief interview and when she gave evidence in Court.

102. I found the complainant’s evidence to be compelling and it remained so even after a thorough cross-examination. She made appropriate concessions in respect of a number of matters, none of which I find to have affected her reliability and credibility with respect to the important and critical matters about which she gave evidence.

103. In cross-examination, the complainant was challenged about a number of matters. One of the complaints that the defence made which the defence submitted goes to the heart of the complainant’s credibility was that she was contradicted by other evidence on key matters.

104. Despite the complainant having given evidence about conversations she had with Mrs Green, Mrs Green was adamant that there were no such conversations. In the course of cross-examination, the complainant was asked about a diary entry (Exhibit D1) dated 4 August 1998 in which she made reference to a conversation with Mrs Green. In the course of that entry when referring to Mrs Green, the complainant said, “ She even said, isn’t it time you put this behind you now. I don’t know what I’d do if my boys cut me off completely like you’ve done to mum … ”

105. It is true that in the course of Mrs Green’s cross-examination, she denied having any conversations with the complainant either about sexual abuse, or any other matter.

106. Counsel for the accused cross-examined the complainant about the conversation referred to in the complainant’s diary on 4 August 1998 when the extract from Exhibit D1 was put to the complainant and shown to her. She then said, Yes, it’s 98. The conversation has completely come back to me. My mother’s birthday, her 70th, was on 1 August 1998. That’s why Iris had flown to Brisbane. I told my mother I wouldn’t be attending her 70th birthday party. And Iris was extremely upset with me. And that’s what it’s talking about, is because she was really upset, saying that she - you know, it’d be terrible if her boys cut her off. And that’s a result of this whole situation. And at the time, my mother denying the abuse, and it all got very hard.

107. Contrary to the complainant’s cross-examination about that conversation, Mrs Green was not asked about it at all or taken to that particular conversation around the time of the complainant’s mother’s 70th birthday.

108. The complainant’s evidence about that conversation after having her memory refreshed by her own diary entry has the ring of truth about it. I see no reason to reject the complainant’s evidence on this topic in light of the failure to put any questions at all to Mrs Green, which might have refreshed her memory as well.

109. Similarly I find that Ms Jennings’ evidence on the issue of whether she and the complainant made one or two trips to visit her father in Brisbane is not material to the complainant’s recollection of key aspects of the offending by her father. Those trips were made long after the offending had ceased and both witnesses’ accounts may well suffer from the same defect of memory as to whether there was one or more than one trip to see her father. I see no reason to reject the complainant’s evidence on that account.

110. In relation to the document described as the will document in Exhibit P1-6, I can readily understand why, even if the evidence of Peter Rossiter is true, that the complainant’s mother, given the toxic circumstances of the family dynamics, may have said one thing to him about that document and another thing to the complainant.

111. As to the reliance by the defence on the evidence given by the brothers Peter and Stephen of an incident when the complainant climbed on to their laps and kissed them, I find that evidence very persuasive, however, for an additional reason not only that it supports the credibility of the two brothers.

112. That incident and the incident described by the complainant that when she was still young she told her brother Peter, “dad cuddles me …” are both consistent with the accused having interfered with the complainant in the ways she alleges.

113. Both those incidents were red flags of potential child sexual abuse, not understood at the time and certainly not understood by either of the witnesses who described the first incident. That is not particularly surprising because both Peter and Stephen were still teenagers at the time when these events were occurring. The issue of child sexual abuse had not yet surfaced in the national consciousness.

114. It is correct that the complainant never claimed to have a clear memory of when, as opposed to how, the sexual abuse by her father began. It is true that she has expressed an opinion in different statements made at different times that the abuse may have started when she was five or six, or seven or eight. However, those remarks were always prefaced by the same doubt. She expressed the following, I said yesterday and it was in my evidence, I believe, recorded, that I cannot recall when the abuse started. That's in my evidence. So I think the fact that there's different date - like, different years that I've said that I think it started is because of that fact, that I - when I'm writing in my diaries, I'm writing to myself and I'm trying to heal myself and I'm trying to write down what I can remember. So I've written down to the best of my ability at the time, not for any evidential purposes but for my own wellbeing, you know, 'This is what I think - you know, this is when I think it started,' because I didn't know and I still can't tell you to this day when it started. So - and I also would be put to you that my birthday - it's quite confusing. My birthday is in December so it means that if in a particular year I think to myself - like, in 1979, I think to myself, 'Well, I'm 13,' well, I actually wasn't. I was 12 and I turned 13 at the very end of that year, if that makes sense.

115. Whilst on the topic of the answer given by the complainant above, I do not accept the criticism of the complainant’s answer as non-responsive or indicating an intent to tell her story irrespective of the question asked.

116. On the contrary, I found the complainant answered all questions in cross-examination in a calm, if resigned, manner even when suggestions were put to her that she enhanced or made up some of her allegations.

117. Although the complainant recalled initially that the last episode of sexual contact was when the accused attempted penile penetration in her vagina, she said there was one other episode which occurred shortly after that when her father stood naked in the hallway and invited her to play with him. She remembers that he gave her an orgasm even though she did not want to accede to his request to follow him down the hallway on that occasion. She recalled that she “probably” wanked him off after he gave her an orgasm.

118. The complainant’s recall of the penultimate incident and the only occasion when she can recall he attempted penile-vaginal intercourse is particularly compelling. She described the accused as very intense and shaking and it was after that episode that she told him she did not want to do it anymore.

119. I am satisfied that both the last episode and the penultimate episode of sexual contact occurred in the way she described. That is to say I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged in count 4.

120. In respect of counts 1 to 3, I am satisfied that the complainant’s account given in her evidence at [44] – [60] herein occurred as she described.

121. She recalled the first incident in the lounge room was on a brown woollen check couch when no one else was at home. She recalled that on that occasion it was kissing and hugging on the lips and then more intensely.

122. In respect of count 2, the complainant described when she was naked in the lounge room on the floor and the accused put his finger inside her vagina, saying “I can put my finger inside of you now, but when you get older I’ll be able to put more than one finger inside of you”. I find that the accused engaged in the conduct required for the offence charged in count 2.

123. I am satisfied that the conduct required for the offence charged in count 3 occurred when the complainant was about 13 or 14 on the bed in her parents’ bedroom, when the accused performed oral sex on her and she performed oral sex on him in the context of the accused having shown her pornographic magazines with visual images of people performing oral sex on each other.

124. Count 5 is comprised of the conduct which is the basis of each of the counts 1 to 4, which the complainant said occurred with such regularity over the years between the age of approximately six or seven and 14 that she was unable to remember all of the occasions or the specifics of each incident.

125. It follows from my finding that the complainant has given truthful and reliable evidence about the sexual abuse by her father which she regularly experienced between 1970 and approximately 1982 that I can also be satisfied beyond reasonable doubt that the accused engaged in the conduct required for this offence.

126. I do not accept that the evidence of Peter and Stephen Rossiter in any way affects the credibility of the complainant. Peter’s barely concealed disdain towards his sister was evident throughout his evidence. His evidence that during a highly charged meeting with him and her mother at the time of his parents’ separation, the complainant suggested she might get $20,000 compensation because of her father’s sexual abuse is inherently unlikely. If that was so, the complainant certainly took her time because it was not until another 25 years had elapsed that that she finally made a statement to the police which led to the prosecution of the accused. In addition, it was not disputed by either the prosecution or the defence that Peter did not mention this allegation to the police in his record of interview in 2023.

127. I was not greatly assisted by the evidence of either Peter or Stephen Rossiter except with regard to the evidence of admissions made to Peter by the accused whilst he was in hospital in 1995, and except insofar as the evidence of both Peter and Stephen about the kissing incident when the complainant was very little, tends to support the complainant’s account of sexual abuse occurring at that time.

128. The balance of the evidence of the two brothers is indicative of the breakdown of family relationships consequent on the separation of the accused and the complainant’s mother in 1995.

Motive to lie

129. It was suggested that the complainant has a motive to lie or expand on her allegations against the accused.

130. The counsel for the accused pointed to the remark which the complainant is alleged to have made to Peter Rossiter in 1995 about getting $20,000 compensation and her evidence that she has lodged a victim support application. The counsel for the accused also relied on the evidence concerning the complainant’s acceptance that at one time she had access to her mother’s bank accounts and the codicil to Mrs Rossiter’s will, about which both the complainant and Peter Rossiter have given evidence.

131. I remind myself that the accused bears no onus of proof and it is important to emphasise that he does not have to prove any motive or prove any reason that the complainant would make false allegations against him.

132. Nevertheless, a motivation to lie has been suggested and I must consider the evidence and determine whether, in light of the whole of the evidence, I accept that the complainant’s evidence is accurate and reliable.

133. Even if I reject that there was any motive to lie, I must not reason just because I have rejected that motive to lie that therefore the evidence of the complainant is truthful. I understand that the prosecution bears the onus of proof at all times and that the absence of any motive to lie does not bolster in any way, the complainant’s evidence or the prosecution case. Nor does it make it more likely that the complainant is telling the truth.

134. Having said that, for reasons I have explained, I do not accept Peter Rossiter’s evidence that the complainant ever made the comment in 1995 or thereabouts that she might obtain compensation to the sum of $20,000. Nor do I accept his evidence that the complainant typed up the document (Exhibit P1-6). I find that the typed document was given to the complainant in the form in which it was tendered to the Court and as she has described.

135. In short, I decline to draw any inference from the evidence of Peter Rossiter or any other evidence which I heard, that the complainant was motivated by greed to lie and exaggerate about these allegations.

136. Having said that, I remind myself that the absence of a motive to lie does not in any way bolster the complainant’s evidence or the prosecution case, nor does it make it more likely that the complainant is telling the truth. Forensic disadvantage

137. The accused has submitted that he suffers from significant forensic disadvantage by reason of a number of factors.

138. The counsel for the accused made the following well-founded submissions that the accused was unable to test the prosecution case as fully as might have been the case by reason of the significant delay between the date of the alleged offences and the date when the complainant finally made a statement to the police.

139. Specifically, the counsel for the accused submitted that by reason of the delay, the accused has not been able to fully investigate the following aspects of the prosecution case:

• The vagueness of the acts alleged against the accused, including when and/or how often they occurred;

• When complaints were made, to whom, and the contents of such complaints;

• Who was living at the house when, and what bedrooms the children slept in when;

• Aspects of the house layout, such as what heating existed where, and when renovations were completed;

• What was on TV on Friday nights during the alleged offending;

• If and when the complainant did ‘sex ed’ at school; and

• Any records of employment for the complainant’s mother and brothers.

140. The counsel for the accused also submitted that had these allegations been brought to trial at a much earlier time:

• He may have been fit to plead;

• He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him;

• He may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both; • The investigative material from the 1999 Queensland Police investigation may have been available; and

• He may have been able to call evidence from his son Graeme Rossiter, who is now decased.

141. I accept that by reason of all of those circumstances enumerated in [139] and [140] above that is important that I scrutinise the complainant’s evidence with the greatest care.

142. The complainant’s inability to recall precise details of each incident which is the subject of the charges makes it difficult for the accused to throw doubt on that evidence.

143. Had the prosecution been commenced much sooner, it could be expected that the complainant’s memory for details would have been clearer.

144. In this regard I note that it is clear from the evidence that the complainant considered making a formal complaint to police in 1999, but chose to discontinue the active police investigation at that time. Thus, the passage of time since the incidents in 1970 to 1982 and the final report to the police in 2022 was a delay of some 45 to 50 years.

145. Had the accused learned of the allegations much earlier, he may have been able to recall relevant details which could have been used by counsel in cross-examination. He might have been able to produce witnesses or items of evidence to contradict the complainant. In this respect, he referred to the oldest son Graeme, who died last year. Due to the delay the accused has lost these opportunities.

146. For all these reasons, I must scrutinise the complainant’s evidence with great care and in carrying out that task I bear in mind the fact that the complainant’s evidence has not been tested to the extent it otherwise might have been, by reason of this delay.

147. Having said that, however, I am mindful that when the accused was spoken to by police in 2022 at a time when he was not as significantly mentally impaired as he is now, he did make some important admissions. Although the accused denied the extent of the offending as alleged by the prosecution, he did accept that he had sexually interfered with the complainant on a number of occasions, albeit not for more than approximately a year and that there was only one occasion when the complainant had agreed to have sexual intercourse with him that he had exposed his penis to her.

148. It is notable that the last incident described by the complainant resembles to some degree the incident admitted to by the accused when he was standing in the hallway with his penis exposed and he ejaculated on the floor with excitement. The accused said that episode was interrupted by the arrival of his son Stephen.

149. The admission by the accused about this episode appears to conflate two incidents described by the complainant, being the last episode she described and an earlier one when she was on the lounge room floor naked with the accused and Stephen arrived home and interrupted them.

Conclusion and findings

150. For these reasons, having accepted the evidence of the complainant as to the critical aspects of her evidence and taking into account the whole of the evidence, I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for each of the five offences charged on the indictment pursuant to s 317(4) of the Crimes Act.

151. The consequence of my findings is that I must now consider ss 318 and 319 of the Crimes Act. The sections are as follows: 318 Non-acquittal at special hearing—non-serious offence (1) This section applies if— (a) an accused is charged with an offence other than a serious offence; and (b) at a special hearing that is a trial— (i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or (ii) by jury—the jury advises the court under section 317 (1). (2) The Supreme Court may make the orders that it considers appropriate, including— (a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. 319 Non-acquittal at special hearing—serious offence (1) This section applies if— (a) an accused is charged with a serious offence; and (b) at a special hearing that is a trial— (i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or (ii) by jury—the jury advises the court under section 317 (1). (2) The Supreme Court must— (a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. Are these offences serious or non-serious offences?

152. The determination of whether the offending falls within the definition of serious offence in s 300(1) of the Crimes Act has important consequences.

153. If the offences are serious offences one of the orders prescribed in s 319(2) of the Crimes Act must be made.

154. If the offences are nonserious offences then s 318(2) suggests options available to the Court, but makes it clear that the Court may make the orders it considers appropriate.

155. Section 300(1) was amended by the Crimes Legislation Amendment Act 2024 (No 2) (ACT) in April 2024. The definition of a serious offence is now: serious offence means— (a) an offence punishable by imprisonment for longer than 1 year if the factual circumstances of the offending involve actual or threatened violence and substantial risk of harm to another person; or (b) an offence against section 27 (3) or (4).

156. I note that both limbs of paragraph (a) need to be satisfied before an offence is classified as serious.

157. Counsel for the accused referred me to a decision of Mossop J in R v Chute (No 11) [2019] ACTSC 91 (Chute (No 11)), in which Mossop J determined that an offence of indecent assault was not an offence involving actual or threatened violence.

158. The definition with which Mossop J was dealing in Chute (No 11) differs to the current definition in that the earlier definition referred to an offence “involving actual or threatened violence” as opposed to the current wording, which refers to an offence “ … if the factual circumstances of the offending involve actual or threatened violence …”

159. Counsel for the accused submitted that notwithstanding the amendment to s 300(1), Chute (No 11) remains good law, is not plainly wrong and therefore should be followed.

160. Counsel for the accused submitted that there is no authority in this jurisdiction from any appeal court nor any other instances at first instance to support the proposition of any generalised nature that sexual offences particularly those involving penetrative acts are inherently violent. 161 ․ The prosecution and the defence did however refer to a number of instances in this jurisdiction, at first instance, including DPP v Rigo [2025] ACTSC 220, DPP v Ierfone [2025] ACTSC 60, DPP v Williams [2024] ACTSC 283 and DPP v Rue [2023] ACTSC 270 where other judges of this Court have taken the view that offences of sexual intercourse without consent are inherently violent. I have also considered the following cases: DPP v Sullivan (No 5) [2025] ACTSC 303 and DPP v Earle [2023] ACTSC 93.

161. Counsel for the defence distinguished these cases on the facts, suggesting that even if it may be accepted that those cases stand for the proposition that penetration in circumstances where consent is forcibly overridden may be an inherently violent act, the facts here are quite different.

162. I accept that there is no authority either on appeal, or at first instance which is directly on point here. Nor do I consider that the decision in Chute (No 11) to be directly on point.

163. In Chute (No 11), Mossop J determined that an offence of indecent assault was not an offence involving actual or threatened violence. However, I note that the argument advanced in that case by the prosecution was that the infliction of force immediately afterwards, namely a strap to the complainant’s knees following the indecent assault, was so closely associated with the offence that it rendered the indecent assault, a serious offence.

164. The prosecution did not advance any argument that the infliction of any force including fondling to an intimate area of a person’s body is by nature an act of violence. The matter was argued on a narrow basis by the prosecution tied specifically to the additional punishment inflicted on the complainant by the strap.

165. For that reason, I do not regard the decision in Chute (No 11) to be directly on point in the circumstances of this case.

166. Violence is not defined for the purposes of the Crimes Act or the Legislation Act 2001 (ACT). In these circumstances, it is convenient to start with a dictionary definition of violence. The dictionary definitions include the following:

• behaviour causing harm by the use of force;

• any unjust or unwarranted exertion of force or power as against rights, laws; any unjust or unwarranted exertion of force or power, as against rights, laws, etc.; injury; wrong; outrage;

• the use of physical force so as to injure, abuse, damage, or destroy; and

• intentional use of physical force or power that results in a high likelihood of harm or injury.

168. In the context of sexual offending, a clear definition of an offence of sexual violence is to be found in the National Plan to End Violence against Women and Children 2022-2032 (Commonwealth of Australia, Department of Social Services, 2022). Sexual violence refers to sexual activity that happens where consent is not freely given or obtained, is withdrawn or the person is unable to consent due to their age or other factors. It occurs any time a person is forced, coerced or manipulated into any sexual activity. Such activity can be sexualised touching, sexual abuse, sexual assault, rape, sexual harassment and intimidation and forced or coerced watching or engaging in pornography.

169. This definition, in my respectful view, represents contemporary understanding of the meaning of sexual violence in Australia.

170. Although in the circumstances of each offence committed here, the offending did not involve any violence further than that which was necessary to commit the offence, I nevertheless conclude that the insertion of a finger and/or a penis into the vagina or the touching of the complainant in the genital region or on the breasts amounts to such a significant and unwarranted intrusion of her bodily integrity that it constitutes an offence of violence within the meaning of s 300(1).

171. As Refshauge J observed in R v Smith [2012] ACTSC 146; 269 FLR 233 at [44], “the legislation is clearly protective and should be interpreted in that way”.

172. To conclude otherwise, in my view, would result in an outcome where the persistent sexual abuse of a child unless there was some other rough action or physical force beyond that which is inherent in the sexual touching or penetration of the child would not amount to a serious offence for the purpose of the legislation.

173. As to whether in the factual circumstances involved here, the offending involved a substantial risk of harm to the complainant, there is an abundance of evidence to conclude that not only was there a substantial risk of harm to the complainant but that risk of harm has already materialised into actual harm.

174. I rely on Dr Sansum’s evidence as to the changes in behaviour in the context of discussing the dynamics of child behaviour in reaction to continuing childhood sexual abuse, sexual abuse by a child’s biological father. Dr Sansum said: In the short term, the child may feel special and gratified by the special attention. This may then develop into a sense of withdrawal, confusion, shame, fear and betrayal as the abusive behaviour continues. This can have a detrimental effect in many areas including relationships with others, trust, education. In the long term, these negative feelings may continue and worsen. This may have lifelong detrimental effects, both psychologically and physically. Exposure to sexual abuse as a child or adolescent is traumatic for the child and frequently has long term negative effects. Repeated episodes of sexual abuse over time has more serious and less reversible consequences than a single one off episode of sexual abuse. These consequences include: • Increased risk of poor emotional regulation including difficulty recognising and responding to positive emotions. This may then lead to an increased risk of poor relationships in adulthood. • Increased risk of mental illness including anxiety / depressive disorders, eating disorders and post traumatic stress disorder (PTSD). • Increased risk of poor self esteem. • Increased risk of somatic disorders and substance abuse.

175. I also rely on the evidence I heard in this trial from the complainant who said at various times that she had consulted psychologists and psychiatrists in an endeavour to deal with the consequences of her father’s offending.

176. I find on the basis of the whole of the evidence I have heard in particular from Peter Rossiter and Stephen Rossiter that the offending of the accused in this matter ultimately resulted in a catastrophic breakdown of the family in 1995 when the accused and the complainant’s mother separated.

177. From the whole of the evidence, I infer that the damage to the complainant has been profound and is ongoing. I do not need to rely on any presumption of harm in this case to draw this conclusion, see R v Horton-Hegarty [2018] ACTCA 22.

178. For these reasons I find the five offences with which the accused was charged are serious offences within the meaning of s 300(1) of the Crimes Act.

179. I will now hear from the parties to consider what order should be made pursuant to s 319(2) of the Crimes Act.

I certify that the preceding one hundred seventy-nine [179] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 29 July 2025 Schedule 1

Table of incidents extracted and edited from prosecution’s further amended notice of intention to adduce tendency evidence dated 6 January 2025 Incident Particulars of date/time/place/ witnesses Incident 1 On a couch with brown woollen check Between 1 December material, the accused had his arm around the 1970 and 1 December (Count 1) complainant. He told the complainant what a 1982. (Count 5) pretty little girl she was and hugged and [The complainant] kissed her inserting his tongue in to her mouth. The accused told the complainant he would go to jail if she told anybody. This was the first time it occurred and it was nighttime. Nobody else was home. Incident 2 The above conduct occurred on multiple Between 1 December occasions for approximately one year. 1970 and 1 December (Count 1) 1982. (Count 5) [The complainant] Incident 3 On the floor in the living room while the Between 1 December complainant was naked, the accused stated 1970 and 1 December (Count 5) the complainant would grow breasts. This 1982. occurred on multiple occasions, prior to the [The complainant] accused starting to digitally penetrate the complainant. Incident 4 On the floor in the living room while the The complainant was complainant was naked, the accused put his approximately 7 or 8 years (Count 2) finger inside of the complainant’s vagina. old. (Count 5) When he did this, he pointed out that his [The complainant] entire finger until his knuckle could fit into her vagina and one day he would be able to fit more than one finger in her vagina. He caused the complainant to orgasm using his Incident Particulars of date/time/place/ witnesses fingers. The accused said “look it comes up to my knuckle”. Incident 5 The accused showed the complainant When complainant was pornographic magazines in his bedroom. He approximately 14 years (Count 5) talked to the complainant about doing certain old. things that were in the magazines. This [The complainant] occurred on multiple occasions. Incident 6 It was daytime and there was sunshine in the When the complainant accused’s bedroom. While in the bedroom, was approximately 11 – 13 (Count 3) the accused showed the complainant years old. (Count 5) pornographic magazines he kept in a plastic [The complainant] bag in the cupboard, depicting people performing mutual oral sex on each other. The accused then asked the complainant if she would like to try it. The accused wanted to put his penis in the complainant’s mouth and perform “69ers”. The complainant does not recall if the accused’s penis went in her mouth. The complainant and accused engaged in mutual oral sex. The complainant told the accused she hated it. Incident 7 The accused performed the ‘69er thing’ on Between 1 December the complainant in the accused’s bedroom, 1970 and 1 December (Count 5) with himself performing oral sex on the 1982. complainant and with his penis and testicles [The complainant] in her face, at least 5 – 6 times. Incident 8 The accused and complainant were on the When the complainant bedroom floor near the door. The was approximately 14 (Count 4) complainant was on her back. The accused years old. (Count 5) was on his knees as he tried to penetrate her [The complainant] vagina with his penis. He had no trousers but was otherwise clothed. His shirt was pulled up. The accused penetrated the Incident Particulars of date/time/place/ witnesses complainant’s vagina with his penis and had sexual intercourse with the complainant. His penis went in about half way. The complainant could feel the accused’s penis insider of her. The accused was very intense and was almost shaking. The complainant was very scared. The complainant said, “no, this isn’t happening.” The complainant got angry. Incident 9 The accused attempted to penetrate the When the complainant complainant’s vagina with his penis. was approximately in year (Count 5) 8. The complainant said “no”. This conduct occurred on multiple occasions. [The complainant] Incident 10 The conduct identified by Incident 4 occurred The complainant was on multiple occasions. approximately 7 or 8. (Count 5) [The complainant] Incident 11 The accused said, “let’s go in to the Between 1 December bathroom”. 1970 and 1 December (Count 5) 1982. In the bathroom the accused directed the complainant and told her how he wanted her [The complainant] to pull his penis, regarding how hard and soft. The complainant pulled the accused’s penis as fast as she could under his direction. The basin was quite high and was scallop shaped and creamy coloured. Incident 12 This conduct of the accused directing the Between 1 December complainant to masturbate him in the 1970 and 1 December (Count 5) bathroom until the point of ejaculation in to 1982. the basin occurred multiple times. [The complainant] Incident Particulars of date/time/place/ witnesses Incident 13 The accused penetrated the complainant’s Between 1 December vagina with two fingers when she was 11 or 1970 and 1 December (Count 5) 12. 1982. This conduct occurred multiple times. [The complainant] Incident 14 The accused rubbed his penis on the Between 1 December complainant’s vagina. 1970 and 1 December (Count 5) 1982. This conduct occurred multiple times. [The complainant] Incident 15 The accused put his penis in between the Between 1 December complainant’s breasts and on her chest. This 1970 and 1 December (Count 5) occurred when she was older. 1982. This conduct occurred multiple times. [The complainant] Incident 16 The accused was naked in the lounge room When the complainant with the complainant. The complainant was was approximately 8 – 10 (Count 5) also naked. They were on the floor. The years old. carpet was brown and yellow in colour with a [The complainant] pattern through it. A door went ‘bang’ and the complainant’s brother Stephen Rossiter (then 18-19) came in the back door. The accused said, ‘quick run down to the bathroom.’ The complainant ran down the hallway. The accused spoke quietly to Stephen. Incident 16a The accused stated that when the The accused believed the complainant was about 15 she “submitted” to complainant was “about (Count 5) his “advances”, near the front door in the 15”; on the prosecution hallway. The accused’s penis was out. case, this occurred when Stephen came home just as the accused the complainant was 8 – ejaculated from excitement. The accused 10 years old. told the complainant to go to the toilet. Incident Particulars of date/time/place/ witnesses Incident 17 The accused was standing at the end of the When the complainant hallway. He called to the complainant, ‘do was around 14 years of (Count 5) you want to come and play with daddy?’ He age. was naked and possibly had a towel. The [The complainant] complainant walked down the hallway to the accused. The accused caused the complainant to orgasm through unknown means. Incident 18 In the lounge room the accused licked the Between 1 December complainant’s vagina. The accused asked, 1970 and 1 December (Count 5) “do you like this, does this feel nice.” The 1982. complainant had an orgasm. Then he said, [The complainant] “you have to make me come now.” The accused had his penis out. The complainant then masturbated the accused until he ejaculated. The accused used a heater to dry up the spots of ejaculate from the floor. Incident 19 The above conduct occurred on multiple Between 1 December occasions. 1970 and 1 December (Count 5) 1982. [The complainant] Incident 20 In a caravan while on holiday, the accused When the complainant asked the complainant, ‘do you want to play?’ was 13 or 14. In a caravan (Count 5) He touched the complainant in an unknown on holiday. way that caused the complainant to have an [The complainant] orgasm. The accused and the complainant were on the double bed in the back of the caravan. There was sun coming in through the back windows of the caravan. It was during the afternoon. Incident Particulars of date/time/place/ witnesses Incident 21 The accused felt the complainant’s genital The accused, when the area as he lay in bed with his wife. complainant was (Count 5) approximately 6 27 Archer St Dickson Incident 22 When the accused’s wife was absent, the At an unknown time when accused interfered with the complainant’s the complainant was under (Count 5) genitals over an unknown period of time. The 15, at 27 Archer St complainant’s genitals looked “babyish” and Dickson she had “clean flesh”. Incident 23 The accused got the complainant to touch When the complainant the accused when she was very young. was “very young”, at 27 (Count 5) Archer St Dickson Incident 24 The accused touched the complainant’s 27 Archer St Dickson, at Venus mound under her underwear as she an unknown time when the (Count 5) sat on his lap in the dining room looking at a complainant was under 15 spinning record player. Incident 25 The accused felt a compulsion to touch the When the complainant complainant and it became easier after the was under 15 (Count 5) first time. Incident 26 The accused was in hospital following a Around the time the suicide attempt and Peter Rossiter visited accused and his wife split him. He told him that his mother had told him up, and the accused was that the accused had told her that he had in hospital following a sexually interfered with the complainant and suicide attempt. asked him if it was true. The accused replied Peter Rossiter. “yes I did … it was kissing and touching … there was nothing other than kissing and touching”.