DPP v Wilson

The evidence

20. LO’s evidence for the purposes of this retrial consisted of a pre-recorded evidence-in-chief interview with police and a recording of the entirety of the evidence she gave in the first trial.

21. In the first trial after LO had given her evidence, the prosecutor sought leave to “broaden the date range” of the counts in relation to her (counts 1, 2 and 3) to properly “capture” the effect of her evidence. In cross-examination LO had agreed that she could have been younger than six or seven years of age when the acts occurred. The evidence established that LO was born on 24 August 2003. Over objection from the accused’s counsel, leave to amend the indictment was granted and the start of the date range for counts 1, 2 and 3 was amended to become 1 January 2009, two years earlier than initially alleged.

22. The prosecution case was that the acts relied upon for count 3 occurred within days or weeks of the acts relied upon for counts 1 and 2. It was the prosecution case at the first trial and in the retrial that counts 1, 2 and 3 occurred in a room of the accused’s family home when the accused, LO and her brother KO were present.

23. LO described this room as the front room of their “old house” which she believed was in the suburb of Forde. She said the room had a white bench underneath the TV with an ‘Xbox’ in the room and black couches “up the back of the room”. LO said it was a room where her brother and the accused would play video games and she would watch them. She confirmed in cross-examination that the acts occurred in the very front room of the house on the left at the accused’s family home in Forde.

24. In the first trial, evidence was adduced by way of photographs and floor plans which suggested that the room at the very front of the Forde house was a study and not a room which featured all the characteristics LO had described. The accused was cross-examined in the first trial to the effect that he must have known that LO was in fact talking about the Gungahlin residence when she was talking about the room at the very front left of the house where video games or an Xbox was played.

25. The accused gave evidence that it was not the Gungahlin house that had immediately sprung to his mind when LO had described the room where she said he touched her. The accused explained that the Forde house had a white bench top and both the Forde and Gungahlin residences had featured the black couches. He said a white stool was a feature of the Forde house and the complainant’s description of a timber deck being part of the house where the acts occurred was a feature of the Forde house and not the Gungahlin house.

26. In cross-examination during the retrial, KO gave evidence consistent with a statement he made to police before the first trial, that LO told him that the acts engaged in by the accused occurred in the south side house, the “old house”, and that she remembered it very clearly. In re-examination KO said that the description LO gave of the layout of the house made him think she was talking about the Gungahlin house.

27. It is also necessary to understand some of the uncontroversial evidence.

28. The accused was born on 15 February 1993.

29. From 2005 to 2007, the accused and his family lived in the suburb of Greenway in Tuggeranong.

30. Around the end of February 2007, the family moved to the suburb of Gungahlin.

31. In late February or early March 2011, the family moved to a home in the suburb of Forde.

32. I have not set out all the evidence with respect to the layout and features of the Gungahlin and Forde residences. In short, there was a potential conflict on the evidence about which room in which house LO was describing. The accused denied that he knew it was the Gungahlin house that LO was describing when she described the room where the alleged acts took place.

33. The point to make is that the prosecution have not ever alleged the acts took place in the Greenway home, the only home they lived in on the south side of Canberra. At least after the first trial the evidence revealed two consequential matters. First, that the Gungahlin house was the Wilson family home from February 2007, while the Forde residence was their family home from no later than March 2011. Secondly, that LO’s evidence left open both homes as the possible location where counts 1, 2 and 3 occurred.

34. LO’s evidence in cross-examination was that she could have been younger than six or seven years old when the acts occurred. She was aged three years and six months when the Wilson family, with the accused, moved into the Gungahlin residence in February 2007. The accused turned 14 on 15 February 2007.

35. For the purposes of this ruling, it is sufficient to understand that the prosecution case is that counts 1, 2 and 3 occurred in the Gungahlin or the Forde homes. Though in his closing address to the jury the prosecutor submitted that the evidence supported a conclusion that it was the Gungahlin residence which was the location of the acts relied upon for counts 1, 2 and 3.

Consideration

36. The issue the subject of this ruling arose after senior counsel for the accused finished his closing address to the jury. In his address, senior counsel for the accused submitted that the jury must be satisfied beyond reasonable doubt that the acts with respect to counts 1, 2 and 3 occurred within the nominated date range (1 January 2009 and 1 January 2013) to find him guilty of the offences.

37. The prosecutor submitted that the position suggested by senior counsel was wrong at law and should be corrected. After some further discussion the prosecutor accepted that if the jury were satisfied beyond reasonable doubt that the acts occurred, but considered it possible that they had occurred at the “south side house”, they must acquit the accused. This was based on an acceptance that the possibility of the acts occurring within the time period that the family lived at the “south side house” raised doli incapax because the accused did not turn 14 until 15 February 2007. Doli incapax was not an issue that had been addressed at all in the trial.

38. The prosecutor submitted that except for the period that raised doli incapax, the only material date for the counts was the date that the complainant turned 10 years of age. Senior counsel for the accused pressed the date range of the offending as a material particular for counts 1, 2 and 3 in the circumstances of the case.

39. The prosecutor submitted that which is the general approach or rule, namely that the date of an offence is not a material particular. Accordingly, the prosecutor submitted that the submission advanced by senior counsel for the accused should be corrected and counts 1, 2 and 3 should be left to the jury on the basis that if they are satisfied beyond reasonable doubt that the act occurred after the accused turned 14 and when the complainant was under 10, they can find the accused guilty.

40. The prosecutor also pointed out that the trial relates to historical allegations of sexual assault and in that respect it conforms with what is commonly the practice for those kinds of prosecutions, namely, that the date range spans a significant period.

41. There are exceptions to the general rule that a date or a date range is not a material particular. I was taken to Mossop J’s consideration of the materiality of a date for an offence in R v Masina (No 3) [2020] ACTSC 154. Masina was a judge alone trial in which the indictment framed an offence as occurring “on or about 2 February 2018”. The accused had served an alibi notice and given evidence consistent with an alibi which included a period around 2 February 2018. After the service of the alibi notice the prosecutor had not sought to amend the particulars of the offence.

42. His Honour recorded that which the prosecutor submitted as to the ‘general rule’ about materiality. Relevantly (at [259]) his Honour extracted WGC v The Queen [2007] HCA 58; 233 CLR 66 at [155]-[157] where Crennan J said: 155. It is undoubtedly good practice to frame a count in an information with "all such specificity as to time" as circumstances permit so as to clearly identify for the accused the charges with which he or she needs to deal. 156. However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence" … 157. Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material. (Footnotes omitted)

43. His Honour also referred to (at [260]) Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 at [10]-[14] where the Victorian Court of Appeal said: 10. It is most unusual for the date of an alleged sexual offence — or, in this case, the period within which an offence is alleged to have occurred — to be viewed as an element of the offence rather than as a matter of particulars. Take a charge of rape, for example. The elements of the offence which must be proved are that: “(a) the accused intentionally sexually penetrated another person; (b) the other person did not consent to the penetration; and (c) the accused did not reasonably believe that the other person had consented to the penetration.” 11. Axiomatically, the accused person is entitled “to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.” In the usual case, the particulars of a charge of rape will identify the date and location of the alleged offence. Alternatively, the particulars may take the familiar “between dates” form. 12. As the South Australian Court of Criminal Appeal said in R v H: “Dates in particulars of a charge are not to [be] regarded as an element of the offence or even as a material matter unless it is an essential part of the offence … Examples where that could be the case are where the age of the alleged victim is an essential element of the charge or, in former times, where the one year and one day rule applied in cases of homicide.” 13. Nor is it unusual for the evidence at trial to depart in some respect or another from the particulars. The usual course is for the particulars to be amended to conform with the evidence as given and, if necessary, to grant the accused an adjournment to address the amended particulars. Counsel for the respondent readily conceded that, if these were “between dates” charges, a grant of leave to amend would have been unremarkable. 14. There may, of course, be cases where the specification of the day, although not an element of the offence, is “material to the integrity of the criminal process”. This may be true, for example, where the accused has given notice of an alibi defence with respect to the alleged date(s). In the present case, however, no such notice has been given. (Footnotes omitted)

44. At [261], his Honour observed: 261. The reference to it being “material to the integrity of the criminal process” is a reference to the judgment of Mullighan J (with whom Perry and Debelle JJ agreed) in R v H (1995) 83 A Crim R 402 at 411. Mullighan J quoted from the judgment of Derrington J in R v Jacobs [1993] 2 Qd R 541, who said that it was going too far to say that the time alleged in the indictment may become an element of the offence: Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.

45. After observing the general rule consistent with the submission made by the prosecutor in this matter, namely that the date of an offence is usually not a fact that must be proved beyond reasonable doubt, Mossop J observed at [262]: However, the practical consequence of an allegation in that form may mean that fairness to the accused requires, in the absence of an amendment to the indictment, that the case be determined on the basis that it is either made out beyond reasonable doubt in relation to the specific date or dates alleged or not at all. An obvious example is a case in which the existence of an alibi in relation to the date or dates in the indictment is raised.

46. It was unfortunate that this issue was agitated at the eleventh hour of a retrial. The history of this matter was such that there were several opportunities for the parties to reflect on the significance of the date range for counts 1, 2 and 3 given the need to take account of doli incapax and the complainant’s age. These were considerations that necessitated precision.

47. Whilst the amendment to the indictment in the first trial was said to better capture the evidence of LO, it was not entirely successful. The amendment to the indictment saw the start date for the range begin from a time when LO would have been five years and five months old which took account of her answer in cross-examination that she may have been younger than six when the acts occurred. The amendment to the indictment did not capture the effect of her evidence with respect to where the acts occurred which included the prospect that the acts occurred at the Gungahlin residence which was the Wilson home from February 2007.

48. The prosecutor recorded that he was not seeking to amend the particulars of counts 1, 2 and 3. So much was clear. The effect of the correction he sought to the closing submission made by senior counsel for the accused (having conceded the effect of doli incapax) was to permit the jury to find the accused guilty of counts 1, 2 and 3 if they were satisfied that the acts occurred between February 2007 and 1 January 2013.

49. Senior counsel for the accused submitted the date range for counts 1, 2 and 3 in the circumstances of this case were a material particular invoking the analysis of Mossop J in Masina with respect to fairness, materiality and the “integrity of the criminal process” (at [261]).

50. In this regard senior counsel identified that the prosecution clearly understood after the first trial that there was a contest on the evidence as to whether the acts, if they occurred, occurred in the Forde or the Gungahlin home. In circumstances were the Director determined to retry the accused, a further amendment to the indictment to again expand the date range to properly capture LO’s evidence and the period the accused’s family lived at the Gungahlin residence was entirely open to the Director and was not pursued. Having determined not to amend the particulars of counts 1, 2 and 3 in those circumstances, senior counsel submitted the Director now suggesting the jury need not be satisfied as to the date range created unfairness in the circumstances of this case.

51. There was in my view an additional and important consideration which brings me back to the tendency application and reveals the necessity to set out the procedural history of the tendency evidence. The history of the matter demonstrates that in the context of the admission of the tendency evidence, the date range was a material consideration.

52. The admission of the tendency evidence when it was initially revisited by me after the first trial and when the Court of Appeal considered it and when I finally determined the Amended Tendency Notice shortly before this retrial commenced, was considered on the basis that the acts occurred within the date range on the indictment as amended in the first trial.

53. The effect of how the prosecutor submitted counts 1, 2 and 3 should be left to the jury was to expand the existence of the tendency such that it was present from a period almost 2 years earlier than previously relied upon, namely when the accused was aged 14 years and the complainant LO was aged 3 years and 6 months.

54. I do not accept the prosecutor’s submission that in the scheme of the analysis engaged in by the Court of Appeal, that the expansion of the tendency in this way was not a matter of any moment for the purposes of the admission of the tendency evidence. Undoubtedly the Court of Appeal endorsed an approach to the admission of tendency evidence which contemplated the probative value of the tendency evidence in its entirety. But the Court did not dismiss the age of the accused or the age of the complainant, or any temporal gap between the manifestation of the tendency with respect to each sister as insignificant factors. On the contrary, the Court accepted those factors could influence an assessment of the probative value of the tendency evidence in this matter, which was “finely balanced”.

55. Consistent with the authorities cited, the Court of Appeal made plain that precision in the expression and terms of the tendency as particularised in a tendency notice was necessary and the Court did not have any role in a reformulation.

56. Notwithstanding that the prosecutor was not seeking to amend the indictment, (an application at this stage of the trial that likely would have been refused) the tendency evidence was admitted on the basis that the accused had the tendencies between 1 January 2009 and 1 January 2017. The Court of Appeal rejected the Director’s submissions that an expansion in the date range did not alter the substance of the allegations in so far as the admission of the tendency evidence was concerned and held at [83]-[84]: The amendment of the indictment to expand the dates for counts 1 to 3 to include potential offending in 2009 had the effect of lowering the potential ages of both LO and the respondent at the time of the alleged offending for those counts and also increased the potential difference between the timing of the allegations relating to LO and those relating to FO by up to two years. Given the young ages of the respondent, LO and FO at the times in question, for each of these matters, an adjustment of even one year had the capacity to materially affect the assessment of probative value of the tendency evidence.

57. The following observation of Crowley J in R v BEO [2025] QCA 40 at [91] where an expansion to the particulars of an offence, initiated by the trial judge at the end of the evidence, was found to be an error of law, is apposite: The critical focus here is not the function of the particulars but the effect of the Crown giving particulars of a charge. It is well established that the system of criminal justice administered by courts in Australia is adversarial and accusatorial in nature. Under that system, it is the prosecution that determines and frames the charge which it seeks to prove at trial.

58. The effect of the giving of particulars in this case included a determination that the tendency evidence was admissible. That determination included consideration of the precise particulars of the counts on the indictment.

59. It is beside the point to consider, as the prosecutor submitted, that some of the uncharged conduct in relation to the older sister, FO was said to have occurred around 2008. It is also unnecessary for the purposes of this ruling to find that an expansion of the time frame within which the tendencies were said to have manifested by almost two years would have resulted in a different outcome in terms of the admission of the tendency evidence.

60. It is enough in my view to find that a further expansion of the date range within which the tendency was said to manifest would have been a material consideration for the admission of the tendency evidence. Permitting the jury to find the accused guilty of counts 1, 2 and 3 if they are satisfied the acts occurred after February 2007 and while the complainant was under 10 years of age, effectively expands the period over which the tendency was said to manifest. There has been no application to further amend the tendency notice.

61. There has been ample opportunity for the prosecution to consider the scope of the particulars especially for counts 1, 2 and 3 where time was particularly of the essence. The effect of doli incapax and the necessity to prove the age of the complainant were matters which required strict observance of accuracy. The detail of the complainant’s evidence being well known to the prosecution, in combination with the need to reconsider the admission of the tendency evidence after my ruling and the Cout of Appeal’s consideration, equipped the prosecution to carefully consider the date range for the counts.

62. It is my view that arising from the circumstances and the history of this matter, it would be unfair to the accused to treat the date range in the indictment for counts 1, 2 and 3 as anything other than a material particular.

63. Accordingly, I consider this to be an exceptional matter where the general rule with respect to materiality should be departed from and the prosecution should be fixed to the time frames in the indictment for counts 1, 2 and 3.

Orders

64. For the above reasons, the following order is made: (1) The date range identified in counts 1, 2 and 3 of the indictment is a material particular.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: O Ferguson Date: 17 June 2025