MacDonald v R

Catchwords

(2024) 98 ALJR 644 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 HCF v The Queen [2023] HCA 35(2023) 97 ALJR 978 Hofer v The Queen (2021) 274 CLR 351[2021] HCA 36 Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20 Kalbasi v Western Australia (2018) 264 CLR 62[2018] HCA 7 Krakouer v The Queen (1998) 194 CLR 202[1998] HCA 43 M v The Queen (1994) 181 CLR 487[1994] HCA 63 Malicki v RR v Malicki [2015] NSWCCA 162 McGrath v R [2010] NSWCCA 48(2010) 199 A Crim R 527 McKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35 MFA v The Queen (2002) 213 CLR 606[2002] HCA 53 Nguyen v R [2017] NSWCCA 145 Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221 Omigie v R [2024] NSWCCA 205 Pell v The Queen (2020) 268 CLR 123[2020] HCA 12 Quartermaine v The Queen (1980) 143 CLR 595[1980] HCA 29 R v Birks (1990) 19 NSWLR 677 R v Gulliford [2004] NSWCCA 338(2004) 148 A Crim R 558 R v Johnston (1998) 45 NSWLR 362 R v MacDonald [2024] NSWDC 136 R v Markuleski (2001) 52 NSWLR 82

Judgment (70 paragraphs)

[1]

Background

At the time of the alleged offending, the applicant and each of the complainants lived in close proximity in Thirroul, on the New South Wales coast near Wollongong (Ex A). JC, who was born in October 1975, lived in a house with her mother, LC, her father and her two brothers, AC, who was six years older and MC, who was four years older than she was. MA was born in October 1972. She lived with mother, VB, her father, an older brother who was born in 1970 and a younger brother, AB, who was born in 1978.
The house where JC lived backed onto the property where MA lived. The two friends would often have conversations over the fence. The applicant lived on the street which connected JC's street to MA's. When JC and MA walked to each other's places, they had to pass the applicant's property.
JC and MA both attended Thirroul Public School and later Bulli High School. MA completed Year 12 in 1990, but JC did not finish school. They were able to walk to primary school from their homes but had to catch a bus to the high school.
The driveway to the applicant's house led straight into a garage with a roller door, in which the applicant spent a lot of time. The applicant had a clear view of the street from the garage as he kept the garage roller door open. At the side of driveway there was a flight of stairs leading up to the house, part of which was above the garage (Ex A).
The applicant and his former wife, DC, had three sons, the eldest of whom was born in about 1978. One of the applicant's sons, CM, was very close to MA's brother, AB. There were only ten weeks between their ages. VB described them as being "like brothers" and said that AB went to CM's house daily and if he was not there, CM was at AB's home. AB's evidence was that the applicant's family considered him to be "their fourth child".
JC's and MA's parents were friends and socialised with other couples who lived in the area, including the applicant and his wife. The other families, the Ps and the Gs, also had young children. The Gs had a daughter called DG, who became friends with MA.
JC and MA addressed the applicant and his wife as "Uncle Ken" and "Auntie Debbie" but JC called MA's parents "Mr and Mrs [B]".
When the families socialised in the evening, there was often a barbecue meal and the parents would drink alcohol. According to MA, DG and VB, most of the gatherings between the families took place at the applicant's house. VB explained: "[The applicant and his wife] did do it the most. They were the more central to us all, and yeah, probably their place was the most convenient."
After dinner, the parents would usually play cards in the kitchen, the boys would watch television in the lounge room and, when it was their bedtime, JC and MA, who were often the only girls present, would go to bed together and sleep until their parents were ready to pick them up and carry them to their respective homes. When the gathering was at the applicant's house, the girls would go and sleep in the master bedroom which the applicant shared with his wife. According to VB, the Ps and the Gs would take their children home to sleep but JC and MA would be expected to sleep at the residence where the gathering took place until their parents were ready to leave, which was usually at about 11pm.
According to DC, the applicant would get home from work at about 3.30 or 4pm, unless he worked overtime, and he would go to the garage and drink beer. She spent very little time in the garage herself, except to put her car in there. When asked whether children played in the garage while the applicant was there she said: "Not that I can recall. All he wanted to do was finish work, drink beer, have a smoke, and try and get a talk to somebody on the phone or get a neighbour. He really did not spend time with kids."
Frequently, when MA's brother, AB, was at the applicant's house with CM, MA's mother would either call over the fence or ask MA to go and get him for dinner, which was served at 5pm. DC recalled MA sometimes coming over to collect her brother. MA's evidence was that, when she went around, or was passing by, the applicant was "always" in his garage.
MA described the wall of the applicant's garage as displaying "lots of pornographic photos [of] naked women [in lots of positions]" around the applicant's work bench. MA gave evidence that sometimes the applicant would call her into the garage and say: "… 'See that girl there, that's how you sit. See that girl there, that's how you pose, that's how you stand.' He used to say, 'And you're going to be a porn star one day. You're going to look like them.' He used to get me to pose. Yeah. So, that was - he used those for, I don't know, to show me what to do."
VB described the garage as follows: "The garage was a man's domain. There was lots of coasters on fridges and walls. There was lots of naked - not naked, semi-naked women calendar pictures on the walls. Yeah, and basically tools and those sorts of things in there, yeah."
According to MA, there was a fridge in the garage because the applicant was "a massive beer drinker" and was always drinking a schooner of beer from a glass in the afternoon. He also smoked there. VB described the applicant as "a very big drinker [who] always drank in his garage, but … if we were upstairs he would drink upstairs too". According to VB, the applicant "always had a beer in his hand, always" and was "always" smoking cigarettes. DC said that she divorced the applicant because he drank "[w]ay too much". She confirmed that she had no idea that he was engaged in any child sex offending.
When JC was in high school, she went to the applicant's place to babysit the applicant's sons before and after school while the applicant and his wife went to work. She prepared breakfast for them and took them to the bus stop. The applicant worked as an electrician and had a work panel van and his wife worked for the Road and Transport Authority. The applicant finished work before DC, and when he came home, JC would "get out of there as quick[ly] as [she] could". DC recalled that she engaged JC on week days when she had to go to work.

[2]

First alleged offending conduct against MA that was not charged

The first time MA can remember the applicant sexually assaulting her was when she was about seven or eight years old and her parents went to Singapore. Initially, MA stayed with her grandparents. However, "on the night before" her parents were due to return, MA had to stay with the applicant and his wife. MA's evidence was: "… I've got an occasion which I believe is the first time. My parents went away, and I somehow was at his house the night before my parents were due to come home, and I remember being in the bath and then he has come in and said, 'Come on, out you get'. So I hop out of the bath. And then he proceeds to wipe me. And then as he's wiped me, his hands have slipped from the towel, and some fingers have inserted into me, into my vagina. And I just remember just standing there in full-on shock. He was kneeling down at the time. So his eyes were level with mine. And I remember looking into his eyes, and he had the look of satisfaction in his eyes. And then I can't - I can't remember what's happened after that, whether, where my clothes were, how I left the bathroom, I don't know. It was just - I was just in shock."
The next day, the applicant drove MA to the airport in his car to meet her parents. Her evidence was: "So I can remember going up to the airport with [the applicant] in the car. And then I remember running up to mum and dad as soon as I've seen them, and - and just jumping and hugging them. And then mum, mum said to me 'What's wrong?' And I just - I just remember turning around and then looking at him. And he just had this look of like, don't you dare, like it was, yeah, just a real, mmm, like a cranky look at me. And then - and then somebody said, 'Did you miss - did you miss us?' And I - and I just went 'Yeah, I missed you'. And then - and then that was it."
MA agreed in cross-examination that it was only when she met "Nerissa" (the Crown prosecutor) for the criminal trial that she recalled the detail of the incident in the bathroom, which she agreed had occurred 42-43 years previously. She said that she did not contact Senior Constable Brian Rice, the officer in charge of the investigation, about it because she was questioning whether it was her first memory of the applicant's offending and wanted to be sure that it was actually the first time that he had sexually assaulted her.

[3]

Count 1 - the applicant allegedly putting JC's hands on his penis

When JC was "very young", "[a]bout four", there was a gathering at the applicant's house with the local families. Because it was late, JC and MA had gone to lie down in bed in the master bedroom. Their brothers were in the lounge room watching cricket on television, from which JC inferred that it was summertime. The adults were playing cards in the kitchen, which was at the back of the house, at the furthest point from the master bedroom. There was a sliding door from the kitchen, which the applicant opened when he came to see JC and MA in the master bedroom.
JC and MA were talking to each other when the applicant came into the room. JC thought that he was drunk because he smelled of beer.
JC gave the following evidence of what then occurred: "He walked to the far side of the room where [MA] was and told me to go to sleep and grabbed [MA]'s hands and put it down the front of his pants. And then he walked around to the other side of the bed near me and done the same thing, grabbed my hand and put it down his pants. And as - he then left and as he walked out, the room, told us to, 'Shut up,' and walked out and left the room."
At the time, JC appreciated that she touched "something big" but did not know that what she touched was the applicant's penis. However, by the time she gave evidence at the trial, she appreciated that what she had touched was the applicant's penis. JC estimated that she touched the applicant's penis for "[a] minute or two".
According to JC, after the applicant left the room, MA "cuddled [her] and told [her] that it was going to be all right" and that she was going to protect her. In cross-examination, JC agreed that she had not mentioned this conversation with MA in her police statement made on 15 July 2020 (see below) but said that it had happened.
Although MA's evidence was that she could not recall anything specific that the applicant did to JC, she recalled: "So there's lots of occasions. One in particular is a card night that we had fallen asleep in Ken and Debbie's bed, [JC] and I, I remember him coming in and telling [JC] to roll over. And then he come over to my side of the bed and put his hands down my pants."

[4]

MA's complaint about count 1

According to JC, the day after the conduct that comprised count 1 occurred, MA told her parents about what had happened and MA "got into trouble". Because JC was younger than MA and loved her, JC did not want to get MA into trouble so she did not say anything.
When asked how she found out that MA had complained to her parents, JC said in evidence: "Well, my brothers had told me to begin with, and then it was sort of common knowledge like with my dad knew, and over the years, even, it used to be spoken about a lot, like even with my grandparents, and my - I don't know how it would be brought up in conversation, but it would be brought up and even my dad would say, 'Oh, even [MA] had said that, and she'd gotten into trouble over it'."
In cross-examination, JC agreed that she had visited MA within a couple of days of the incident comprising count 1 and that MA's parents had told her that MA was not allowed to play with her for a couple of days as punishment for telling them about what the applicant had done. JC also said in her police statement that when she discussed the matter with her brother, MC, in around 2015-2016, he had told her that MA had been slapped across the face as punishment and that he had seen red marks on her face (see below regarding JC's complaint to MC).
As a result of MA getting into trouble for telling her parents about the applicant's conduct, JC did not tell MA of the applicant's further offending against her because she did not want to get MA into trouble again.
Despite this, MA said in evidence: "I knew, obviously, things were happening to me, and I knew things were happening to [JC], but I can't recall exactly what was happening to her. All I know is that, yeah, I focused on myself basically, and - and - but I did know things were happening to her. We quite often spoke about it."
VB denied that MA had ever told her that she had been touched by the applicant or that she had slapped MA or prevented JC from playing with her as a consequence of any disclosure.

[5]

Following the conduct alleged to comprise count 1

Following that incident, both JC and MA tried to avoid the applicant. JC's evidence was that if she was ever near him "[s]omething would happen". Sometimes the applicant would say to her "come and give Uncle Ken a hug".
MA said that after the conduct comprising count 1 (and the associated conduct with respect to MA), there was a change in how she and JC regarded the applicant. MA gave evidence as follows: "So he was - he was - we were all - he - we called him uncle. He was - we thought, you know, he was everyone's friend, and all us kids called him uncle and aunty, but during this time, we were all - once he started assaulting us, we were all - [JC] and I in particular were - were afraid of him, petrified of him."
The applicant usually worked in his garage with the roller door open, which gave him a view of the street. MA felt that he was "waiting" there for her. JC knew when he was at home because he had a panel van for his work which he parked on the street outside his house. As JC and MA had to pass the applicant's house to visit each other or, in JC's case, when walking home from primary school, they would cut through a neighbour's property and duck behind the rose bushes so that the applicant would not be able to see them.
JC described what she and MA used to do to avoid the applicant as follows: "But between the two of us, we knew that we knew that when he was home, that we had to cut through the neighbour's yard, and we did things to avoid him. And she even - like, as a - her being older, and she's always been very protective of me, would like, she probably was the one who'd come up with that idea, and said to me, '[J], from now on, we have to make sure that we cut across the yard, and we, you know, when the car's out,' and just do - like look after ourselves."
MA also said in evidence: "… I used to run across the garden edge, and then up the right, and then jump onto the stair ledge, and run up to the front door. So that was one way. Another way I used - I used to hug the fence line on the opposite - opposite side of the road. Well, you can see me as clear as day, but I just thought that was protection. That fence line to my neighbour's house, so, yeah, I just hugged that, thinking he didn't see - he wouldn't see me. But it just seems like he saw me all the time."

[6]

Other conduct concerning the applicant which was relied on as tendency evidence

MC recalled an occasion, when he was about 9 or 10 (and JC was about 5 or 6), when his family and MA's family were at the applicant's home. He said: "Well, the boys were sitting in one of the bedrooms and just playing a board game or something, and we all decided that we'd go outside and play spotlight or hide and seek or something like that and we decided - I decided I'd go and find the girls to invite them to come and play, and I thought they were in the bedroom next to us, so I walked down the hall and they weren't there and - and then I heard voices coming out of [the applicant and his wife's] bedroom and the door wasn't quite closed, so I just walked in there and I found [the applicant] in bed with [JC] and [MA] on either side of him, and [the applicant] said to me, 'Uncle Ken is having some girl time at the moment and I'll be out there to spend some time with the boys later.' So I just turned around and I didn't think much more of it and went and played with the boys."

[7]

Count 2 - the applicant's alleged indecent touching of JC outside her clothing in his garage

When JC was "[p]robably about eight, ten" and still in primary school, she was going home one day from the backyard of the applicant's house and went through the laundry door which led to the garage to leave. The applicant blocked her way and ran his hand from her vagina to the top of her head. JC said this kind of conduct happened on a number of occasions from the time JC was six until the time she moved out of home when she was 14.

[8]

Count 3 - the applicant's alleged indecent touching of JC outside her clothing in his garage

On another occasion, when JC was between about eight and ten years' old and still in primary school, JC was taking the same route from the laundry through the garage to the driveway to go home from the applicant's house. The applicant said to her, "come and give me a hug". She said in evidence that she did not realise that the applicant was there or she would have taken a different route. While she was standing there, he ran his hand from her vagina to her head while he hugged her with his other arm.
JC did not make a complaint about this conduct at the time.

[9]

Count 4 - the applicant's alleged digital penetration of MA in his living room

MA gave evidence of an incident when she was about eight or nine years old and on the lounge in the lounge room at the applicant's house and the adults were in the kitchen playing cards: "There was another occasion where I didn't want it to happen. And then I've put myself asleep in the lounge room, on the lounge. And the lounge was situated right beside a sliding door. And the adults were behind that sliding door. And I put myself there to protect myself. But then he's proceeded to come around from the other side of the room, into the lounge room, and put his hand - and I was, I remember, I was facing the lounge room wall. And he's asked me to roll over and face him. And then he's put his hands down my pants. And, yeah, and that's - and I remember him walking away after that."
MA also gave the following evidence: "… [The applicant]'s walked in from the hallway through the foyer and then walked over to me. I was facing the wall, and then he has asked me to roll over and face him, and I remember smelling his breath strongly of alcohol and cigarettes, and then he has put his hands down my pants, and then I think somebody said something like, 'Where's Ken?', or something, and then he's got up and walked - walked back down the hallway and back. He didn't go through that sliding door. He went back around the hallway."
When the applicant put his hands down her pants, he inserted his fingers into MA's vagina for "[m]aybe 30 seconds to a minute … [l]ong enough to hurt". She rolled over and cried after the applicant left.
MA agreed in cross-examination that when the conduct occurred the applicant was no more than about two metres away from where the other adults were sitting around a table playing cards. She described his conduct as "[v]ery brazen".

[10]

Count 5 - the applicant's alleged digital penetration of MA at the table

One year, the families gathered at the P's family home for a Christmas party. It was a corner block and all the children were in the swimming pool which was effectively in their front yard. MA got out when it was getting dark. She still had her swimming costume on. There were two tables set up, one for the adults and the other for the children. The applicant was sitting at the head of the adults' table.
MA's evidence was: "I remember him grabbing me as I walked past and he said something like, 'I haven't seen you all night. Come here and give me a hug,' so he has grabbed me and then put - put me on his lap, and then he proceeded to put his hand up into my costumes and then into my vagina. I remember just sitting there. There were adults. Everyone was around. I remember looking directly straight ahead at one of the mothers and thinking, 'Look what he's doing to me', but I was freezing - freezing. He actually said at one stage, cause I was trying to squirm away - he said, 'Sit still. You've got a bony bum,' and then - yeah, and then he's - cause I was squirming cause his fingers were inside of me. I then remember just running - him letting me go and just running and jumping in the swimming pool, bobbing up and down, facing the fence so nobody would see me crying, going under the water, coming back up, taking a breath, crying underwater. Yeah, that's what I remember."
MA confirmed that there was skin on skin contact as the applicant lifted her swimmers aside and "pushed his fingers inside [her]". This lasted for "about three minutes … [i]t felt like three minutes … could have been shorter … could have been longer …".
MA agreed that there was a woman who was sitting about 1-2 metres away from her when this occurred. She confirmed that despite the proximity of other people, nobody noticed what was going on.

[11]

Count 6 - the applicant allegedly putting his penis in MA's mouth in the garage

When MA was about 10 or 11 years old, the applicant called her into his garage. Her evidence was: "And as he's turned around, his penis was out of his shorts. And he's called me over. And then I don't know what he actually said to me, but next minute I was - had my head on his penis, or my mouth on his penis with him holding my head. And that was - that was the first time I - I don't know how long I was for. I was in total shock. … … Q. … did you consent to doing that act with him? A. No, I don't think I was asked. So, no. Q. Did you want to do what was happening? A. No. No."
MA gave evidence that similar conduct occurred frequently: "Q. Is this the only time this happened? A. No. Q. How often did it happen? A. It - it felt like every day, especially as I got older, because I used to have to walk past his house going to high school. It felt like he called me into that garage every day. I'm sure it wasn't, but that's what it felt like to me. I'd panic every time I saw his car there as I rounded the corner to walk home. Yep. So on another occasion, he's called me in. He used to call me 'Miss'. Everyone in the neighbourhood called me 'Missy' cause my brother could never say my name. So my name throughout the whole neighbourhood was 'Missy'. Anyway - so it was - it would be like a 'Miss - Miss - Missy - Missy'. And then it would be a '[M]' in a - a real cranky - if I was avoiding him. But once that crankiness come out, I caved and would walk over and go in. …"
MA was asked about the applicant requiring her to perform acts of oral sexual intercourse with him in the following passage: "Q. And on that occasion, did he have his penis in your mouth? A. Yes. Yes. Q. So this happened how many times, do you think? … A. I don't - I don't know exactly how many times I performed it. But, like, it - it felt like every day. Q. And you never consented or agreed to do that. A. No. Not with him holding my head, no." (Emphasis added to indicate the portion relied upon by the applicant's counsel on appeal.)
In cross-examination, the applicant's trial counsel put the conduct which comprised count 6 to MA for the purpose of putting his case to her that it did not happen. The following exchange occurred: "Q. And you just say that he just forced you to perform oral sex on him in a garage during the daytime with people going past. A. Yes. Yes. Q. You see, I want to suggest to you, [MA], that that just did not happen and it never occurred with Mr MacDonald in relation to this count in the garage. A. It happened."

[12]

Count 7 - the applicant allegedly putting his penis in MA's mouth and telling her to suck it

MA gave evidence of a different occasion on which the applicant "grabbed [her] head and told [her] to suck his penis like a straw." On that occasion there was no ejaculation.
As with respect to count 6, the applicant's trial counsel put the conduct which comprised count 7 to MA for the purposes of putting his case to her that it did not happen. The following exchange occurred: "Q. There was a further count, as I said, in relation to the garage, and you say that there was an occasion when he had forced his penis into your mouth and told you to suck it like a straw. A. That's right. Yes. Q. And again, I'm suggesting to you, [MA], that that just did not happen. Mr MacDonald never forced you to perform fellatio upon him. A. He did."

[13]

Count 8 - the applicant allegedly putting his penis in MA's mouth and MA biting it

MA gave evidence of another occasion (separate from counts 6 and 7) when the applicant pushed his penis into her mouth. She said he "got [her], grabbed [her] head, held [her] head so hard that…[she] accidentally bit him." He said, "[n]ever use your teeth", and "I told you to suck it like a straw … Now continue to suck it like a straw". MA did not know how long this lasted.
The applicant's trial counsel put count 8 to MA in the following terms: "Q. It's a further count in the garage that you maintain that you were forced to perform fellatio upon him and you say that your head was grabbed so tightly and forced down on to his penis that it caused you to gag and caused you to bite his penis. A. That's right. Q. And you say that he had said to you, 'Never use your teeth,' and then later said, 'Suck it like a straw.' A. That's right. Q. Again, I want to suggest to you, [MA], that just did not happen. A. It did."

[14]

Count 9 - the applicant's alleged digital penetration of JC while she was in her swimming costume in his garage

After dinner one evening when JC was about eight years old, JC had been swimming in the pool at MA's home. She heard her mother calling her to come home. She ignored her the first couple of times but by the third time, it was starting to get dark and she realised that she had to go. On her way home, she saw her father in the applicant's garage, talking to him.
Because her father was there, she ran across to join him in the garage and stood there in her swimming costume while her father was talking to the applicant. JC said that she did not even have a towel with her because she thought that she "was going to go home and jump in the shower straight away". JC was excited to see her father because she did not see much of him because he worked as a coal miner and did night shifts, which required him to sleep during the day. She also concluded that she would not get into trouble with her mother for being late home if she was with her father. JC estimated that she was in the garage with her father and the applicant for about ten minutes.
JC gave the following evidence of what occurred: "I was standing there with my dad, and they were having a conversation. And we went to leave. And as we went to - I was holding my dad's hand. And as we went to walk out of the garage, [the applicant]'s swung his hand from behind me and towards my - my bottom sort of thing. And I was sort of standing there with my wet costume on and I - I felt pain - I don't know why. I wasn't sure from why at the time. And my legs were just sort of to my feet. We just - I couldn't move for a second." (Emphasis added.)
JC also gave the following evidence: "His finger had like gone through inside me with, like - through my costumes, but yeah, it had definitely, yeah, gone inside me."
This went on for "a minute or two"; it was "momentary" and happened "very quickly". JC also said she felt pain in her stomach and "sort of froze". Neither she nor the applicant said anything.
JC's evidence was that she did not think that her father saw what had happened because if he had they would not have gone home straight away. She said that she "didn't even realise that it was happening until it had happened". There was no discussion between her and her father about what had occurred.

[15]

Count 10 - the applicant allegedly putting his penis in MA's mouth and his wife walking in

MA recalled that when she was about 12 years old and attending Bulli High School, she was performing oral sex on the applicant when his wife, DC, walked into the garage from the laundry. The applicant pushed MA away and turned his back to her. The applicant's wife asked MA, "[w]hat are you doing here, miss?". MA picked up her school bag and went home. The applicant's wife did not chase MA or ask her anything. MA could not say what, if anything, DC saw.
DC was asked about this allegation in the following exchange: "Q. Do you ever recall a situation where you have come down into the laundry and stepped into laundry and observed your husband there with [MA]? A. No, I cannot recall that at all. Q. You don't remember a situation of coming down there and saying to her 'What are you doing here, missy?' A. They're the words that I would use. But I don't remember doing that. Missy [MA] could have come across. I'm not saying she didn't. But I don't remember it. Q. Did you ever observe her performing fellatio on your ex-husband in that garage when you came down through the laundry? A. No. If I ever saw - no."

[16]

Count 11 - the applicant's alleged digital penetration of MA and threat to have sex with her

[17]

MA's evidence of count 11

MA also gave evidence of an occasion when she was about 11 or 12 years old when she, JC and DG, the daughter of one of the other families in the group, were in the applicant's master bedroom. The applicant came in and said to JC and DG, "Roll over, girls, I need to have a word with [MA]." The applicant approached the side of the bed where MA was (which was the furthest away from the door) and put his hands down her pants and said, "I'm going to have sex with you soon" before walking out of the room. MA could smell alcohol and cigarettes on him. Unlike with respect to count 4, MA was not asked about, and did not give evidence of, digital penetration occurring on the occasion of count 11.
MA was "absolutely petrified". MA thought that she talked about what the applicant had said to DG and JC, who told her that she needed to tell her mother. MA said that she was too scared to sleep that night.
MA gave evidence of a subsequent occasion when she and the applicant were in his garage. He stuck her head through the manhole in the garage, which led to a cavity where there was a softened, flat area between two piers and said to her, "That's where I'm going to have sex with you one day".

[18]

DG's evidence of count 11

DG's evidence as to what occurred is as follows: "… we were in bed. [MA] was there. I remember - in terms of where I was laying, I remember I was on - the closest to the door. I was - I was lying on the edge. [MA] was next to me. I said at the time to the police that I wasn't 100% sure of the third person, but I'm assuming it was [JC] because when I think about those nights, it was all the boys, and aside from, like, my sister or maybe [L], there wasn't really any other - other girls, so anyway, so I definitely remember [MA]. It was likely [JC], but I definitely remember [MA], and then I just remember [the applicant] coming into the room and standing there, and that's kind of, like, all I remember, but I guess - like, that was a clear memory. … I don't know whether I was always awake or I woke up, but I just remember lying there and - and him standing there …"
DG said that the lights were off and the door was "probably … just ajar". She estimated that she was about 10 years old at the time and that MA was slightly younger and a year or two below her at school. DG drew a diagram (Exhibit K) which depicted the positions of each of the four people involved.
DG said in cross-examination: "… there was no conversation, and I don't recall [the applicant] lifting the covers on me, but I do remember him standing there and hovering a bit …"

[19]

MA's contemporaneous complaint to her mother the following morning

MA's evidence was that as soon as her mother came to pick her up, she said, "Mum, Uncle Ken said he is going to have sex with me soon." According to MA, her mother's response was "Oh, don't be silly." Nothing further was said between them. MA said that she realised from her mother's response that she had to deal with the applicant's conduct towards her on her own. Her principal strategy was to try "to avoid him in as many ways as possible" but she was often unable to. MA also gave evidence that there was a strong friendship between her mother and the applicant's wife and her brother, AB, and one of the applicant's sons, CM, and she "[d]idn't want to break the friendships up". MA expanded on this evidence in re-examination when she said: "Well, it was the friendships that my - everyone had with each other. I just didn't want any conflict, any - any friendships broken, unfortunately, but that's just what I thought. I didn't - I was out to protect them, not me … so I was just pleasing my mum and dad, basically, to keep the peace."
VB's evidence was that she had "no recollection … whatsoever" of telling MA not to be silly or that "Uncle Ken wouldn't do that". VB said in cross-examination that if MA had said anything of that kind to her, she would have "go[ne] off [her] brain" and would "[a]bsolutely" and "undoubtedly" have raised it with the applicant's wife.
The following exchange occurred later in VB's cross-examination: "Q. … If your daughter had said to you, 'Mum, Uncle Ken's just told me that he wants - that he's going to have sex with me soon,' you wouldn't have answered, 'Don't' - your answer to her wouldn't have been, 'Don't be silly,' would it? A. I wouldn't say it wasn't. As I said, I don't recall it. But when a child says something like that to you, I mean, your first reaction is, 'Oh no, he wouldn't do that'. And I wouldn't expect that he would do that. I mean, we were very close, and for - the fact of the matter is I would not lay a hand on his children, and I expected him never to lay a hand on my child."

[20]

Count 12 - the applicant allegedly grabbing JC's breast

When JC was in Year 7 or Year 8 at Bulli High School, her mother gave her a white linen skirt and an orange top for her 13th or 14th birthday, which was in about 1988 or 1989. After school one day, she put the top and skirt on and went to MA's place to show her the new outfit. When JC heard her mother calling her for dinner, she went to run across her neighbour's front yard to go home when the applicant saw her across the road. He "yelled out" and "told [her] to come over and give him a hug for [her] birthday". JC's evidence was: "… I remember standing there saying, 'No, no, mum's calling me. I've got to go. I have to go home. Mum's calling me for dinner.' And he had come out, walked out of the garage then and had said, 'Come over', you know, 'Your Aunty Deb's got a present for you', you know, 'Come over and', you know, 'it's your birthday.' And so I walked across the road and as I walked across the road, he's gone to give me a hug for my birthday and grabbed my breast, but he had grease all over his hand, and yeah, there was a - he left a dirty - grease hand print on my breast of this shirt - this top, and when I went home, I walked in and mum was serving dinner up, and she looked at me and said, 'What's that?' I said, 'That's what Ken's done', because he, you know, Ken - Ken's did that with - and she said, 'Give it here'. And she was in a bit of a fluster serving dinner up, and she's gone into the laundry and tried to clean it, and it wouldn't come out. She couldn't get it out. So she threw my - my top away - I had to throw my top away and replace it. She had - s the night of my birthday, I'd only got the top in the morning, and she actually had to throw it away and buy me a new one. It was within a couple of days, and she bought me a new top. But yeah, it's - had to get it thrown out."
JC's evidence was that there was no further discussion with her mother about her saying that it was the applicant who had done it. Her evidence was also that she was prompted to disclose the applicant's conduct on this occasion as she was a bit older when this count occurred, and she found it frustrating not to be able to tell anyone what had happened when she was younger.
JC agreed in cross-examination that she had said in her police statement that her mother had ignored her and did not listen to what she had said. She said in evidence: "Well, she did ignore me. She didn't listen. She didn't listen to what I said."

[21]

The change in JC and the effect of the applicant's conduct on her relationships, including with MA

JC and MA remained close until MA started high school at the age of about 13. At some later stage, JC became troubled. In 1989, while JC was about 13 and still living at home, JC was given counselling at the suggestion of "the Court" and her parents also went to a separate counsellor.
LC recalled that her relationship with JC became "more challenging … mainly from about 13 onwards". LC said: "Well she was just being very, not wanting to do what we'd asked her to do, wanting to do more grown-up things that we felt were more suitable to children, older, or teenagers older than herself. She was rebellious. She decided she didn't want to go to school. And she - If she did go, she'd wag school. She'd walk in the front gate, and walk straight out the back gate, even though our best efforts were to get her there. That was the main thing, being quite rebellious."
By about the end of 1989, when JC had turned 14, she left home and, according to MA, they "grew apart". JC had a child at 15. MA recalled going to see JC with her first child but did not recall seeing her again "until recently" although their mothers remained close.
JC recalled that when she came home in the two or three years after moving out, she would see MA. MA, who already had her driver's licence, told JC that she would teach her to drive and took her to Thirroul Beach for her first driving lesson. However from the time JC was about 17, she did not see MA again. According to JC, her own mother and MA's mother remain friends.

[22]

Subsequent interactions between the applicant and MA

In about 2001, MA's parents and the applicant and his wife visited MA, who was living with her husband, GA, in the United Kingdom. At the time, MA was pregnant with her first child. When asked how she interacted with the applicant during the period of about a week while he and his wife were staying with her, MA said: "… I remember greeting them at the airport, obviously, hugging everyone, and I just remembered Ken and I just nodded, and that was it."
MA gave evidence that during this visit, the applicant was "standoffish" and "very, very quiet", which was in contrast with his usual behaviour which was "normally quite loud and boisterous and arrogant". MA's first child was born while her parents and the applicant and his wife were visiting. After the birth, MA was careful to prevent contact between the applicant and her child. She said: "My focus was my baby. I wasn't going to let my baby near him as well. I had full intentions not - not to let him touch her, not to let him hold her. He was not going near her. ... I didn't feed her near him. I made sure I fed her up in my bedroom away from everyone, not in front of him, and yeah, she was my focus."
MA said that the applicant and his wife had also attended her engagement party, her 21st birthday and her wedding (by which time she had already told GA of the applicant's sexual assault of her as set out below). MA explained that she wanted the applicant's wife at these important events. As a result of MA's disclosures to GA, GA "didn't feel comfortable having [the applicant] there".
The applicant and his wife separated in about 2006 and divorced in December 2007. VB gave evidence that the applicant's wife had confided in her previously that once their children were old enough she was going to leave the applicant because of his drinking.

[23]

JC's evidence

Apart from her contemporaneous complaint about the conduct comprising count 12, JC discussed the applicant's conduct with her mother a few years later in the following circumstances, as described in JC's evidence: "I think I was about 16, and I'd already moved out of home, and I used to go and stay there one night of a week, and I was - before bed, we were sitting out on the verandah, and I was having a cigarette and mum actually brought it up and had asked me what had gone on over the years when I was younger, and had said things, what had actually happened. She wanted to have a conversation about it, then."
JC said, in effect, that she told her mother what she had said in her evidence in chief. According to JC, her mother's response was: "That was putrid, but like it had happened, and there was no point in, you know, doing anything about it now. There's nothing - you know, it's not going to make it not have happened. It's already - it's happened, and that, yeah, that it was just a horrible thing to happen but, you know, there's no point in going on about it because it had happened, and nothing could change that it had happened."
JC's evidence was that her mother did not tell her father about what she had told her about the applicant's conduct.

[24]

LC's evidence

LC's recollection was that the first time JC had told her that the applicant had interfered with her was in 2015 or 2016. She gave evidence that she did not recall an earlier conversation when JC was about 15 or 16.

[25]

JC's complaint to her grandmother when she was 22 years old

When JC was about 22 years old and had a 12-month old daughter, she visited her maternal grandmother, who told her that JC's mother had asked her to talk to JC about the alleged sexual assaults because at that time JC and her mother "didn't get along that well" and JC's mother thought that JC might be more comfortable talking to her grandmother about them.

[26]

JC's complaint to her brother, MC, in about 2015 or 2016

[27]

JC's evidence

In about 2015 or 2016, JC and MC were both living in Melbourne. She went to see him to tell him about the alleged sexual assaults because she wanted MC to tell their father, who, as far as JC was aware, did not know about them. It was on this occasion that MC told JC that he had seen the red marks on MA's face from being slapped by her parents for what she had said about the applicant's conduct that comprised count 1. JC's recollection was that MC was so upset by the recollection that he was crying as he recounted it to her.

[28]

MC's evidence

MC recalled an occasion around 2014 or 2015 when JC came to visit him in Victoria. He said: "I just got home from work one day and to find [JC] sitting on the front doorstep like she'd been waiting for me to get home. She was quite upset and emotional and looking very dirty, so I took her inside and gave her a flannelette shirt and some clean tracksuit pants and put her in the shower. And yeah, she was very upset, and we sat down and we talked. And she stayed with me for the week actually."
MC recalled that JC told him that when they were children, the applicant "used to touch her and [MA] up … in the inappropriate areas". JC was very emotional when she told him. MC's reaction was: "That was a shock to me, and I did say, it's not like I don't believe you, but I couldn't imagine that that happened. I just - that never occurred to me that something like that would have happened."

[29]

JC's complaint to LC in 2015 or 2016

LC gave evidence that, in about 2015 or 2016, JC came home and had a discussion with her at the back of their house while JC's father was inside the house. JC told LC that the applicant had interfered with her when she was younger. LC could not recall any response she made to the disclosure and described her own reaction as follows: "I was so shocked and so taken aback that, you know, I - I didn't really know what to say to her."
LC said that she told her husband what JC had said but that she did not speak to JC about the matter again until about 2020 when JC was in prison.

[30]

JC's complaint to a parole officer and intelligence officer at Emu Plains in 2020

[31]

JC's evidence

In about July 2020, JC was in custody at Emu Plains Correctional Facility where she was interviewed by a parole officer, Chris Molnar, and an "intelligence officer", Pamela Jones. JC told them that she wanted to move back to Thirroul as her father was very ill and she wanted to see him before he died (he died in August 2020, three days after her release). In the course of the interview, JC was asked why she had left home when she was a teenager. JC's evidence was as follows: "Well, they were asking me questions about why I had left home. And I was baffled by that. I didn't know what relevance that had to do with anything at all. And how they even had knowledge of any - any of that. And I told them that the - like, I moved out of home. I was acting out. I was trying to get in - I was sort of trying to get in trouble. I was trying to get grounded, so that I didn't have to babysit. And they - they said to me that they - my - my mum had actually mentioned to them that there - I'd make allegations that - to her about the neighbour. So they sort of railroaded me in a room. And - and yeah, I actually told them. They were the first person in authority that I - I'd told."
After JC had told the Emu Plains' officers about the applicant's conduct, they "impressed upon [her] that the right thing to do [was to report it to the police] and that [she] should do the right thing".

[32]

Ms Jones' evidence

Ms Jones spoke to JC when she was in the Emu Plains Correctional Facility about why she wanted to go home when she did not appear to have a good relationship with her family (although her father was dying) instead of going to drug rehabilitation. It was in this context that JC told Ms Jones about the applicant's conduct. Ms Jones said in evidence: "That's when she started telling the story about why she wasn't close to her family and historic childhood sexual abuse by a neighbour. Sorry, I'm going to get upset. I can't get that picture out of my head of her breaking down, telling us the story. And she didn't go into graphics, and I - I certainly didn't draw her out about particulars, but things like sneaking past this man's house, and there was apparently another young girl who was a friend of hers involved as well. Both of them were being sexually abused. She must have lived close to [JC] because they used to come up with ways to get passed this guy's house without him seeing them and calling them over, which was what he used to do, apparently. Yeah, it was pretty graphic. … Well, that she and her friend were both sexually abused, that apparently the three families used to do barbecues during the football season and would go to one of the three houses to watch the football, and the kids would be put to bed in whoever's house they were at at the time, and this guy would come and get them. It was her turn in whatever bedroom they were in at the time. Like I said, I did not want to draw her out. I was - I'm not trained to deal with that. She was upset enough. She actually needed psychology help. I - I organised that after the interview. … To be honest with you, you - you hear lots of stories in jail, but it's very rare for the girls to disclose that sort of stuff to you. She broke down. She actually gave us a demonstration of how her and her friend would get down on the ground to crawl passed his house, and, I mean, she's the office crawling around the desk. I believed every word she said. It was so upsetting. I'm pretty tough, but I walked out of that office, went into my own office and burst out crying, before I went and saw the psych. Yeah, it was pretty upsetting."
Ms Jones asked JC whether she had ever told her mother about what had happened, to which JC said that she had told her mother when she was about 16 and her mother said, "[w]e're not talking about that.".

[33]

LC's evidence

LC recalled that Chris Molnar, the parole officer, rang her to tell her about the police report. LC's evidence was: "… the parole officer said to me, 'Do you know [JC]'s going to be seeing the detectives,' and I said, 'What about?' But straight away I sort of remembered that conversation, and then the parole officer told me what it was related to."

[34]

JC's report to police

On 15 July 2020, the day after her interview with Ms Jones and her parole officer, JC made a statement to police. By that time she had not seen MA for about twenty years.

[35]

MA's complaint to her mother

MA's contemporaneous complaint to her mother that the applicant had told her that he would have sex with her "soon" has been addressed above.

[36]

MA's evidence

MA had been friends with LW since she was about four or five, after they met at pre-school. They also attended the same primary school and high school.
MA was asked in her evidence-in-chief when the applicant's conduct towards her came to an end. She answered: "I remember telling my girlfriend [LW] at the time. We were in her bedroom and just saying that 'Ken's been making me do this, making me give him head,' and - and she said, 'Oh, my God. That's so bad. You need to tell someone,' and in the end, I just went, 'No, I can't tell anybody,' and she said, 'Well, you just got to be' - you know, just, like, 'I just can't believe that you're not telling anyone,' and in the end, after our discussion, I just said to myself that's - like, it's - it is so wrong. I'm - this is really wrong."
This conversation with LW took place when MA was about 12 or 13 years old and MA had to walk past the applicant's house to go to LW's house.
MA gave the following evidence of the change in her behaviour towards the applicant after the conversation with LW: "Anyway, and then I just had the courage to just walk past his house one day. Did it again the next day after him calling me constantly going, 'Miss, Miss. [M],' like, getting cranky at me, and yeah, and then, so I think I did it on one or two occasions and I went, 'oh my God.' He didn't follow me. He didn't chase me. He didn't follow me to my house and say anything and I - and then that day I just realised he's - he - he won't chase you, cause - cause he knows what he's doing is wrong. He's not going to come and say, 'You didn't come over to my house to do this to me,' so yeah, so I just continued - continued to be strong and - and got through it."

[37]

LW's evidence about MA's complaint to her

LW's recollection of the conversation which had happened in her bedroom was that it had happened in about 1987 when she and MA were about 14. LW's evidence was: "[MA] told me that [the applicant] had forced her to have oral sex. She didn't use that word. She used, like, 'head job'. She told me that, yeah, he used to force her to - he's forced her to suck his cock. Yeah, I just remember her telling me how - how she thought it was really - how gross it was and how it made her gag. But, yeah, that's - I remember that quite - quite vividly. … I just remember her - well, I - I said, 'We've got to tell'. I remember talking about going to tell her mum, and I can't remember if it was then that I said, 'You've got to tell your mum,' or if it was after, but I remember vividly that her mum - like, her mum said, 'No, don't' - like, yeah, 'Just stay away from him. Don't be silly'. I remember something like that. I remember, like, 'Yeah, don't be silly about it'."

[38]

LW's evidence about MA's behaviour when passing the applicant's garage

LW recalled that when she and MA used to walk past the applicant's garage: "He used to call out quite a lot. I just remember as we got older that [MA] would be - like she'd yell - he'd yell out and she used to say, 'Just ignore - just ignore him,' or at times she got quite angry and would tell him to F off or, you know, nick off or just go away but that's probably when we got a bit older."
LW recalled that the applicant had called out to indicate that he wanted them to come to his place. She confirmed that she and MA would have been about 14 years old when MA told the applicant to "F-off". When they were younger, say about 12 years, LW had gone to the applicant's garage with MA and seen "lots of pornographic photos on the wall".

[39]

The incident in the bedroom in the applicant's house after MA had complained to LW about his conduct

Sometime after MA's disclosure to LW, MA and LW were babysitting the applicant's children and were sleeping the night at his house in two single beds. MA agreed that the babysitting was a "one-off occasion". They were each wearing pyjamas. The applicant came into the room and MA told LW to pretend to be asleep. The applicant lifted the blankets off each of the beds but did not touch either of the girls. LW gave evidence to similar effect except that her recollection was that she only had a sheet over her because it was summer.

[40]

MA's complaint to GA

When MA was 17, she commenced a relationship with GA, a boy at her school. Her evidence was: "… there was a moment where [GA] and I were intimate and he has held my head and I've freaked out, stopped, said, 'Never ever do that again,' and he's, 'What? What? What?', and then, so I've said, 'I was assaulted by Ken', mentioned his name. 'He did things to me like hold my head, so never ever hold my head,' and - and then I explained, yeah, 'He did - he did that to me,' and I said, 'It's all been sorted, though. We don't need to pursue this any further. It's all been sorted so we don't talk about it.'"
This was the only conversation MA ever had with GA about what the applicant had done to her.
GA gave evidence about this incident and the exchange to the same effect. He recalled MA using the words "sexually abused" when referring to the applicant's conduct and that MA told him that the applicant had told her to "suck it [his penis] like a lollipop". GA observed that MA was very fond of the applicant's wife but "wouldn't go near [the applicant]".

[41]

Subsequent discussions between MA and LW about the applicant's conduct

On two occasions, when she was 20 and when she was 26, LW approached MA to persuade her to report the applicant's conduct to the authorities. LW worked for community services and became a "mandatory reporter". By this time, LW had forgotten the applicant's name and was unable to report it herself. She asked MA to report the applicant but when she refused, LW asked her at least to give her the applicant's name so that she could put something in a report. MA refused and told her that she did not want to talk about it. LW felt that "[MA] just wanted to bury it". According to LW, MA said, "just forget it". LW did not make further inquiries because she "respected [MA's] decision not to go further".

[42]

MA's meeting with her parents and the subsequent meeting between MA's parents and JC's parents

[43]

MA's evidence about the meetings

The only further discussion which MA had with anyone about the applicant's conduct before she was approached by the police in relation to JC's complaint about the applicant occurred after she became aware that JC had made the allegations.
VB phoned MA and told her that JC had made allegations against the applicant and asked MA whether it was true, to which MA answered, "100%". A couple of days later, MA and her parents went to JC's parents' house. They spoke about the fact that JC had made allegations but not the content of the allegations. MA gave evidence that she remembered saying to the two sets of parents that this (the applicant's sexual assaults of JC) could be the reason JC is the way she is because his conduct had affected JC in so many ways.
In re-examination, MA said: "I didn't say anything that he did to me. I never said what went on, but I just said to them, 'You have to take this into consideration why [JC] is like she is. This could be the reason that she's gone off the rails.' [JC]'s father did say to me, 'You have to remember what she's done to us,' but I said that this could be why. … I think - I think I did say this has - has happened to both of us."

[44]

VB's evidence about the meeting with MA and GA

VB said that in about 2019 or 2020, the following occurred: "[JC's mother] rang me and told me about [JC]. [JC], at this time, was in jail and was being seen by a counsellor and then rang me to say that the counsellor had rung her and had said that [JC] had been molested as a child by [the applicant] and she wanted to know if I knew anything about [MA] being molested because [JC] had told her that [MA] was molested by [the applicant] as well and I didn't know anything about it and I proceeded then after I spoke to [JC's mother] to contact [MA] and [GA] and they came up that night to talk to me about it."
Following this conversation, VB phoned MA as follows: "The telephone conversation was - I just said to her, '[MA], what's happening cause I've just heard that [JC] … was molested by [the applicant]', and I said, 'Did he ever touch you', and she said, 'Yes, he did'. And anyway, that's when I just said to her, 'Look, we need to talk about this, and her and [GA] came up that night."
That evening, MA and GA visited MA's parents at their new home in Woonona. VB's evidence was: "When [MA] came out, she was very upset. And I was upset, as well. I mean, we were just totally, absolutely - well, I was. Because - just had no clue whatsoever. And I just said to her - and gave her a hug and I said to her, 'Darling, what's happened? What - what - what happened?' And she said, … 'He - he would expose himself and make me touch him'. She said, 'He used his finger on me so many times in the pool. Or he'd sit me on his lap'. And, you know, he would abuse her. And - yeah. I mean, this is a man that was a friend. And it just destroyed us. I mean, we just couldn't believe - I mean, if - if I'd have hurt his children, he'd have been onto me straightaway. And he did this to my daughter - destroyed her - her - her innocence. … I just said to her, 'Why didn't you ever tell me?' And she said, 'Mum, I did try to tell you once'. And she said, 'Oh, don't - you - you said to me, "Oh, don't be silly - Uncle Ken wouldn't do that". And - yeah. And it was just really hard for me to understand, again, why? Why would you do that to a little seven-year-old little girl?"
VB described MA's demeanour when they were having this discussion as follows: "[MA] was very, very, very upset. And I can remember saying to her, 'Why didn't you - why didn't you really make a point of it and - and really make me listen?' And she said, 'Mum, you and Aunty Deb were very, very close'. And she said, 'You were really good buddies and friends'. And she said, 'I didn't want to hurt Aunty Deb' …"

[45]

GA's evidence about the meeting between MA and her parents

GA recalled the meeting with MA and her parents and said that, prior to the meeting: "It was probably about - a little over three years ago. I - I pretty much walked into home one afternoon and [MA] said, 'Can you remember what I said about [the applicant],' and I just went, 'Yes,' and then - I believe I then - it was about a phone call, that her mother had rang her and told her that [JC] had made an accusation in somewhere and [JC] said that [MA] had a story to tell."

[46]

VB's evidence about the meeting between her and her husband, MA and JC's parents

According to VB, there was a meeting at JC's parents' home which JC's parents, VB, MA's father and MA attended. This meeting took place on the evening following the meeting between MA and her parents.

[47]

LC's evidence about the meeting with MA and her parents

LC explained that she had arranged the meeting: "Yes, I just sort of brought up to them, made them aware that [JC] was going ahead with these accusations, and I felt that they needed to be informed of what might be coming towards them."

[48]

MA's report to police

On 15 September 2020, Senior Constable Rice approached MA and told her that JC had made accusations against the applicant. She responded, "Yes. 100%. I can - I can vouch for her and I will back her up 100%". The police then asked her whether it had happened to her as well, to which she answered, "yes".
Senior Constable Rice's evidence was that he told MA that he was investigating allegations into historical sexual assault by the applicant and had been led to believe that she might have information to share with him. MA said, "Oh yeah, I have a lot I can tell you".
MA's first statement was 18 pages long. She agreed that it took the best part of a month to complete it and that she met with Senior Constable Rice at the Wollongong Police Station on 21 September, 12 October, 19 October and 20 October 2020 for the purposes of preparing the statement. They met again on 2 November 2020 to sign the statement. MA agreed that the first thing she remembered about the applicant was having a bad feeling when he took her to the airport to meet her parents. Later she had flashbacks about what had happened.

[49]

The approach by police to other witnesses

In October 2020, the police contacted DG by telephone to talk to her about the applicant and whether something had happened one night in a bedroom in the applicant's home. Senior Constable Rice attended her home in April 2022 to obtain a statement.
Senior Constable Rice also contacted LW, AB and MC and obtained statements from them.

[50]

The recorded conversations between MA and the applicant

On 10 May 2021, as part of the police investigation, MA approached the applicant while wearing a wire to speak to him about what he had done to her. The conversation lasted for about half an hour and the recording of it was tendered in the prosecution case.
MA gave evidence that when she approached the applicant in front of his garage, he came up to her with open arms and said "[w]hat are you doing here" as he went to cuddle her. She said "[n]o, no, no, don't come near me". This was the first occasion on which she had returned to the applicant's property and she said it "brought back vivid memories" as well as "flashbacks".
A week later, MA returned to speak to the applicant again, in the hope that she could get him to admit the conduct or to apologise for it. This conversation also lasted for about half an hour. On both occasions the applicant flatly denied the alleged conduct.
In the course of the recorded conversations, MA put various matters to him concerning what he had done to her (which she said were accurate and which she remembered) and also various matters concerning what he had done to JC (which MA admitted that she had made up because she did not know the detail of what he had done to JC).

[51]

The arrest and charging of the applicant

On 20 April 2022, the applicant was arrested and charged. He participated in an Electronically Recorded Interview with a Suspected Person (ERISP) that day with Senior Constable Rice in which he denied all the allegations. Senior Constable Rice confirmed that the applicant had no prior convictions.
The Crown case closed on 30 November 2023, the fourth day of trial. There was no defence case.

[52]

The direction given about the elements of the offence of sexual intercourse without consent contrary to s 61D(1)

Because the direction given as to the s 61D(1) offences of sexual intercourse without consent is the subject of proposed ground 1 of appeal, it is necessary to set out how the matter was addressed at trial. This ground concerns the convictions for counts 6, 7, 8, 10 and 11. Count 9 need not be considered in this context as the applicant was acquitted of that count.
On the first day of the trial, Monday 27 November 2023, there was discussion about the directions that would be given to the jury in the summing up. In the course of the discussion, the following exchange occurred between the trial judge and the applicant's trial counsel: "HIS HONOUR: Yes. Well, in my written directions, I'll say, on the issue of consent, 'A child cannot consent.' CLARK: I don't know that it will even come up your Honour, because, as I said, our case is one of a flat denial."
In the trial judge's opening directions to the jury on the first day of the trial, his Honour, when identifying the critical issues, said: "Was there lack of consent and did the accused [know] the complainant was not consenting, but as I understand it, the critical issues were, will you be satisfied beyond reasonable doubt this event occurred."
On Thursday 30 November 2023, the fourth day of the trial, the trial judge raised with counsel in the absence of the jury, the document which set out the elements of the offences charged. The trial judge's draft correctly identified the following elements of s 61D(1) which required the Crown to prove that: "(1) the applicant had sexual intercourse with a complainant; (2) the complainant did not consent to the sexual intercourse; and (3) the applicant knew she did not consent to the sexual intercourse."
The trial judge's draft document included the following: "'Consent' - A person aged under the age of 16 cannot consent to an act of indecency or sexual intercourse."
The trial judge's draft document also included the following matters relevant to counts 6-11: "'Absence of consent' - A specific element of Counts 6, 7, 8, 9, 10 & 11 that must be proved beyond reasonable doubt is that the complainant did not consent to the act of sexual intercourse. The accused does not have to prove that the complainant consented; it is for the Prosecution to prove beyond reasonable doubt that she did not. … 'Knowledge of absence of consent" - Another specific element of Counts 6, 7, 8, 9, 10 & 11 that must be proved beyond reasonable doubt is that the accused knew that the complainant did not consent to the act of sexual intercourse.

[53]

The addresses

In the Crown address, the prosecutor referred to the offences of sexual intercourse without consent as follows: "The later offences that [MA] described, which are counts 6, 7, 8 and 10, she recalled them happening later. It was the touching that happened first, and it was the oral sex in the garage that happened as she got older and more towards her high school years. For that reason, the charge is sexual intercourse without consent. A child can't consent. The issue is whether or not these events happened at all."
The applicant's trial counsel did not refer to the issue of consent in his closing address. He submitted that the prosecution had not proved any of the counts to the requisite standard and that the applicant ought, accordingly, be acquitted.

[54]

The summing up

In the summing up, the trial judge gave the jury the standard directions about non-consensual sexual activity as follows: "People who do not consent to sexual activity may not be physically injured or be subject to violence, or even threatened with physical injury or violence. The absence of injury, or violence, or threats, does not necessarily mean that the person is not telling the truth about alleged sexual offences. This is particularly so in relation to children. … It should not be assumed that the person consented or was somehow agreeing to something [-] consent not being an issue in this trial [-] just because they were present in a particular location."
In the summary of the prosecution case, the trial judge said: "So far as the sexual intercourse [counts] were concerned, they occurred; there was the penetration, either the oral penetration or the digital penetration, and no issues about consent arise."

[55]

Ground 1: alleged error in the elements of an offence contrary to s 61D(1) (counts 6-11)

Although ground 1 has two sub-grounds, it is convenient to address them together.
At the relevant time, the Crimes Act distinguished between, on the one hand, offences of indecent assault against a person under 16 years contrary to s 76 and s 61E(1), and, on the other, an offence of sexual intercourse without consent contrary to s 61D(1). The distinction was drawn by s 77 (renumbered in 2018 as s 80AE, referred to by the trial judge in the extract above) which relevantly provided that the consent of a child under the age of 16 years shall be no defence to any charge under s 76 or s 61E(1). However, s 77 did not apply to s 61D(1), the offence of sexual intercourse without consent.
The applicant contended and the Crown accepted that the passage relating to "Consent" in the directions to the jury contained an error in that it ought to have been limited to the indecent assault counts.
The Crown in this Court accepted that MA's age at the time of the alleged offending did not render her incapable of consenting to the sexual intercourse for the purposes of an offence contrary to s 61D(1). In McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527 (McGrath) at [9]-[11], this Court held that, because s 61J of the Crimes Act (another section to which s 77 did not apply and under which the appellant was charged) expressly made the absence of consent and knowledge of the absence of consent elements of the offence, the judge erred in directing the jury that the complainant was deemed not to have consented because she was younger than 16. Irrespective of the complainant's age, the prosecution was required to prove those matters beyond reasonable doubt.
There is no basis for distinguishing s 61D(1), as it applies in the present case, from s 61J, as it applied in McGrath. Thus, before the jury could be satisfied that the applicant was guilty of counts 6-11, it had to be satisfied both that MA did not consent to the sexual intercourse and that the applicant knew that she did not consent. While the trial judge set out the elements correctly, the portion in the "Key Terms" part of the document was erroneous in so far as it applied to counts 6-11. His Honour was persuaded by counsel that, in the particular circumstances of the present case, there was not and could not be any issue about consent. The sole issue in the trial was whether the acts charged had actually occurred. Thus, although the trial judge was aware of the distinction drawn in the Crimes Act, his Honour was persuaded that it was not a distinction that was material to the jury's deliberations and therefore was not one that needed to be drawn.

[56]

Ground 2: alleged inconsistency between the acquittal of count 9 and the conviction on counts 1, 2, 3 and 12 (the other counts concerning JC)

In effect, the applicant submitted that the evidence of JC was incredible (a submission which is also relevant to ground 3) and that the jury ought to have found it so by reason of its verdict of acquittal on count 9. He submits that because the acquittal on count 9 "can only be reconciled with the Jury being unable to accept the complainant as an honest and/or reliable witness", the verdict of acquittal on count 9 was inconsistent with the other counts which similarly depended on JC's evidence (counts 1, 2, 3 and 12).
The applicant's submission contains a number of false premises, not least of which is that a verdict of not guilty indicates that the jury considers the complainant's evidence of that count to be unreliable and incredible. The High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 identified the error in that proposition. Gleeson CJ, Hayne and Callinan JJ said at [34]: "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." (Emphasis added.)

[57]

The applicable principles

The principles applicable to an unreasonable verdict ground are well established. The question for the Court is whether it was open to the jury to be satisfied on the whole of the evidence of the accused's guilt beyond reasonable doubt. This question is one of fact for the Court, which must make its own independent assessment of the evidence. If the Court entertains a doubt, it may nonetheless consider that it is a doubt which was capable of being resolved by the jury's advantage in seeing and hearing the evidence: M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63.
It is not necessary in a sexual assault case for a complainant's evidence to be corroborated. This Court must proceed on the assumption that the tribunal of fact found the evidence of the complainant, at least as to the elements of the offences which resulted in guilty verdicts, reliable and credible. However the Court still "examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - [it] is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt": Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The jury has the primary function of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). Although this Court may disbelieve a witness whose evidence the jury must have accepted, there are very significant constraints on doing so, none of which can be surmounted in the present case: see Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing).

[58]

Consideration

Mr Steward, who appeared on behalf of the applicant in this Court, principally challenged the reasonableness of the guilty verdicts on the following bases: 1. that the applicant's conduct was "implausible", principally by reason of its brazenness and its having been committed in plain sight or when others were close by; 2. that there were disparities between the recollections of the complainants as to what had occurred; and 3. that there were inconsistencies between the complainants' evidence of complaints they made, and the evidence of those to whom they allegedly complained.

[59]

Alleged implausibility of the conduct

Several of the applicant's submissions rest on a postulated implausibility of his alleged conduct given its brazenness, at times being carried out in plain sight when adults were either present or close at hand. For example, the applicant submitted, in respect of count 5 (digital penetration of MA while she was sitting on his lap around a table at which others were seated nearby), that "[t]he scenario was implausible to such a degree that the jury should have entertained a doubt about this count".
The apparent implausibility of the conduct to those in the complainants' family and social circle was addressed in the evidence. MC, who was only four years older than JC, shared the belief held by JC's and MA's mothers that sexual assault of a child by a trusted family friend was unthinkable. When JC told MC what the applicant had done to her, his response was shock because "that never occurred to me that something like that would have happened". It was open to the jury to consider that the prevalence of this attitude within the applicant's social circle had the effect of enabling him, since he could act on the basis that his conduct, even if brazen, would not be seen by others for what it was.
Similar submissions are frequently made to this Court, notwithstanding that it appears from the evidence in cases and appeals that brazenness, far from indicating implausibility, may be a hallmark of certain child sexual abusers. Indeed for some perpetrators, of which the applicant appears to be one, the proximity of other adults in a public space, and the attendant risk of detection, may well add to the excitement of the offending. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, which was an example of apparently implausible conduct by those who commit sex offences against children, the High Court explained the forensic utility of tendency evidence to render the evidence of the complainant, JP, about a sexual assault committed against her when she was 14 or 15 years of age more credible. JP's evidence of count 1 was that the appellant, who was a friend of her parents and socialised with them, came into JP's bedroom where she and the appellant's daughter were sleeping, put his hand inside her pyjamas, touched her vagina and inserted his finger into her vagina. Counts 2 and 3 involved similar conduct. Their Honours (Kiefel CJ, Bell, Keane and Edelman JJ) said at [59]: "Considered in isolation, JP's evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP's evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour. Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised." (Emphasis added.)

[60]

Alleged disparities between the recollections of the complainants

The applicant has, through his counsel, made several submissions about alleged inconsistencies and disparities between JC's and MA's accounts. One such alleged inconsistency was JC's recollection of the punishment inflicted on MA for telling her mother that the applicant had been touching her inappropriately, which found little support in the evidence. MA did, however, recall making such a complaint to her mother and her mother telling her not to be silly. It may be that JC's understanding of the consequences for MA of making that disclosure was incorrect or that she misapprehended the reason why she was unable to play with MA for the three days after the complaint. However, MA clearly recalled making the complaint and her mother's response to it and JC, too, remembered hearing of MA's complaint and the response to it.
Whether MA was actually physically punished (by being slapped or not being permitted to play with JC for a few days) or simply told not to be silly is not something which affects the strength of the separate, corroborative recollections of MA and JC. Further, MA's recollection of her mother's response to her complaint is consistent with VB's own evidence: that she would not have believed such a thing to be possible. VB's abiding view on this topic (how could anyone do that to a young girl?) is entirely consistent with her response to MA - that she was not to be "silly".
As is well known, including to this Court, human recollection is imperfect: what two witnesses to the same scene will remember will inevitably differ when they are asked about it shortly afterwards and even more so decades later. But, having analysed the evidence as a whole, I do not consider that any of these alleged inconsistencies affect the credibility of JC or MA as to the counts of which the applicant has been found guilty.

[61]

The alleged inconsistencies between the complainants' evidence of complaint and the adult evidence of complaint

The applicant submitted that the evidence of JC and MA was unreliable and incredible because it was, in parts, inconsistent with the evidence of adults who, had they seen or heard what the complainants said that the applicant did, would have intervened, and they did not. For example, the applicant submitted that JC ought not be believed because her mother did not recall the complaints she had made to her about the applicant's conduct which, had they been made, would have prompted JC's mother to take immediate action.
The difficulty with this submission is that it pays insufficient regard to the environment and times in which the conduct occurred, as is evident from the evidence of the witnesses themselves. It was open to the jury to find that VB's response to MA's statement that she had told her about the applicant's conduct and that her response had been to tell MA not to be silly was telling. VB explained: "And it was just really hard for me to understand, again, why? Why would you do that to a little seven-year-old little girl?"
Similarly, when VB agreed with the proposition that she never saw anything in the applicant's conduct towards children that was untoward or which gave rise to suspicion, she explained: "Well, that's correct because I just didn't ever expect that that would be something that would happen."
To the adults involved who knew the applicant as a family friend whom they believed to be a good man whom they could trust, including in the company of their children, who called him, "Uncle Ken", it was unthinkable that he would breach that trust by sexually assaulting JC or MA. The evidence of LC and VB indicates the difference between their attitude to the complaints which were ultimately made by JC and MA as adults, and those which JC and MA said they had made when they were children. As LC explained (as extracted above), she "probably would [not] have thought … anything sinister of it because you didn't think those things in those days". It was open to the jury to consider that the applicant exploited the incapacity of the adults at the time of the offending to envisage that any such thing could occur, which was what enabled him to offend, effectively in plain sight, at family events or in his garage in broad daylight, confident that no one would draw the conclusion that he was sexually assaulting MA or JC.

[62]

Other matters

The descriptions of the applicant's conduct given by JC (except as to count 9) and MA were clear and powerful. His way of offending - to prey on them in a family, suburban environment where he was comfortable that he was well-regarded and would not be suspected - was similar in respect of each of them, although there were some differences which may be explained by the four-year age gap between the two complainants. Although, as is to be expected, their recollections as to particular events differed, their descriptions corroborated the evidence of the other.
Further, the manner in which JC and MA complained, and the persons in whom they confided, is also significant. When MA told her mother that the applicant had told her that he was going to have sex with her, all she wanted was for the conduct to stop. While VB did not recall telling MA not to be silly, such a response would have been consistent with her view that it was unthinkable for a close family friend to behave in that way. The initial complaint having turned out to be futile, MA realised that she had to manage the situation on her own and do what she could to protect JC. Further, it appears that both girls suffered a sense of shame about what had happened, which led them to keep the conduct secret, even from each other, although they each knew in a general sense that the other was also being sexually abused.
MA's disclosures to LW, and LW's response showed the extent to which MA had been groomed by the applicant into thinking that she had to comply with his demands. Her evidence that she was "absolutely petrified" that he might have sexual (penile/vaginal) intercourse with him was an indication of her revulsion towards, and fear of, the applicant and his conduct towards her. MA's disclosure to GA in the context of oral sex supported her account but also indicated that MA had no desire or motive to harm the applicant. Indeed, GA was sworn to secrecy and had to suffer the applicant coming to stay with them in the United Kingdom when MA was expecting, and after she had given birth to, their first child. It is also significant that MA told Senior Constable Rice when she was asked about the applicant, that she had plenty to tell him. Although MA would, it appears, have otherwise been content to let the matter rest (which she described as "bury[ing]" it) for her own sake and the sake of her mother's relationship with DC and the inter-family relationships between the brothers, she was willing for the truth to come out when she was informed that JC had reported the matter to police.

[63]

Summary

In summary, having reviewed all of the evidence at trial, I consider that it was open to the jury to find the applicant guilty of counts 1-8, 10 and 12 beyond reasonable doubt. I have no doubt of the applicant's guilt on these counts. Count 11 falls into a different category for the reasons given below.

[64]

Count 11: whether the Crown established digital penetration or the lesser offence of indecent assault

Mr Steward submitted that MA's evidence of count 11 was insufficient to justify the verdict of guilty of sexual intercourse without consent because, although MA said that the applicant had put his hand down her pants, she did not say that he had also digitally penetrated her. He submitted that at its highest, the evidence could only establish indecent assault.
As is apparent from the narrative of the evidence, MA's description of the conduct in respect of counts 4 and 11 was relatively similar: that the applicant had put his hand down her pants. However, in respect of count 4, MA clarified that there was digital penetration, describing "[h]e put his hands down my pants and fingers were inserted into my vagina" when asked in her examination-in-chief "what did he do to you?". However, no such clarifying evidence was given in respect of count 11. While there was general evidence given by MA about the frequency with which the applicant digitally penetrated her (almost every time she went to his place), her evidence did not specify that she was penetrated with respect to count 11. It can be surmised that, had MA been asked about whether this occurred, she would have confirmed, as she did with count 4, that he had digitally penetrated her. It may have been no more than an oversight by the prosecutor that MA was not asked to clarify what she meant by his putting his hand down her pants in respect of this count. However, the result is that there is a deficiency in the evidence in respect of count 11 such that it was not, in my view, open to the jury to convict the applicant of the charge of sexual intercourse without consent. The statutory alternative of s 61E(1), indecent assault, was available and, on MA's evidence, the applicant would have inevitably been convicted of the alternative count.
The applicant and the Crown agreed that, if this Court accepted the applicant's submission that the evidence did not prove digital penetration beyond reasonable doubt, it would be open to this Court to substitute a verdict of indecent assault pursuant to s 7(2) of the Criminal Appeal Act. It was common ground that it would be appropriate, in the event that the verdict for count 11 were set aside and substituted by a lesser offence contrary to s 61E(1), to remit the matter to the trial judge for re-sentence.

[65]

The application of the proviso

The applicant submitted, as is evident from the wording of ground 1, that the trial judge's error in the direction regarding the offence of sexual intercourse without consent occasioned a substantial miscarriage of justice in counts 6-11. The Crown submitted that no such miscarriage is shown, that grounds 1(i) and (ii) have not been made out in terms and that, in any event, the proviso ought be applied and the appeal dismissed.
An error by the trial judge in directing the jury, even where the direction relates to the articulation of the elements of the offence, does not prevent the Crown relying on the proviso: Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi). Every case depends on its own facts, what is disputed in the trial and the evidence: Kalbasi at [16], [55] and [60].
The applicant relied on the absence of evidence of the surrounding circumstances of counts 6, 7, 8, 10 and 11 in support of a submission that the Crown had not proved the second and third elements of the offence of sexual intercourse without consent.
I reject this submission. The evidence in the present case established overwhelmingly that, MA was, at all times, an unwilling victim of the applicant's predations. She was revolted and disgusted by him and by what he did to her. Her initial complaint to her mother having proved futile, she took steps to avoid having any contact with him. When her boyfriend, GA, did a physical act which reminded MA of the applicant's conduct when putting his penis into her mouth (holding her head), she immediately became extremely upset, told him never to do that particular act again and explained that the act was intolerable because of what the applicant had done to her.
The Crown case was that the acts charged in the indictment took place. The defence case was that they did not. There was, understandably, no alternative defence case that the acts had taken place but that MA had either consented or given the applicant reason to believe that she consented or that he had nonetheless believed that she was consenting. Such an alternative case would, necessarily, have rested on the premise that the acts charged had occurred, which was, as was evident from the way in which the applicant's case at trial was conducted, denied.
Thus, there was, effectively, no issue about consent in the trial at all, although the second and third element of the offences of sexual intercourse without consent still required the prosecution to prove those elements beyond reasonable doubt.

[66]

Proposed orders

For the reasons given above, I make the following orders: 1. Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of all grounds. 2. Grant leave to appeal in respect of ground 1 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 3. Dismiss the appeal, except with respect to ground 3 in so far as it relates to count 11. 4. Quash the conviction on count 11 and, in lieu thereof, substitute a verdict of guilty of indecent assault contrary to s 61E(1) of the Crimes Act 1900 (NSW) pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW). 5. Remit the matter to the District Court for re-sentence. 6. List the matter in the arraignment list in Wollongong at 9.30am on 10 February 2025.
IERACE J: I have had the considerable advantage of reading the draft judgments of Adamson JA and Sweeney J. I agree with the orders proposed by Adamson JA and with her Honour's reasons, and make the following additional observations.
As to ground 1, it is apparent that the prosecutor was under the misapprehension that s 77 of the Crimes Act 1900 (NSW) applied to the offence under s 61D(1). She repeatedly advanced that position: in pre-trial discussions on 27 November 2023, saying, "But consent is no defence, and the issue is whether it happened at all"; in amendments made to the trial judge's draft elements document, removing the elements of consent and the applicant's awareness of her non-consent; and in discussions in the absence of the jury, defending her proposed amendments, as follows: "But then s 77 as it then was, provided consent is no defence when the child is under 16. And I know that that is not a straightforward proposition, but that is what the law that the consent of the child is no defence. So what I put in there is from s 77."
In the pre-trial discussion, the defence submitted the issue was irrelevant: "I don't know that it will even come up your Honour, because, as I said, our case is one of a flat denial."
His Honour remained unconvinced by the prosecutor's submissions in respect of s 77 but ultimately accepted that it simplified matters for the jury, in circumstances where the defence was that the alleged incidents of sexual intercourse simply did not occur. Although defence counsel did not express an opinion as to whether the Crown's submission on s 77 was correct, there can be no doubt that he was aware of that issue and chose, for forensic reasons, to proceed on the basis that an absence of consent, and the applicant's awareness of that absence, were not elements of the offence.

[67]

Ground 1

As Adamson JA has explained the trial judge did not direct the jury about the elements of the complainant's lack of consent and the accused's knowledge of the complainant's lack of consent in respect of counts 6, 7, 8, 10 and 11. This was done with the encouragement of the Crown and the agreement of the applicant's counsel. For that reason r 4.15 of the Supreme Court (Criminal Appeal) Rules applies.
It was the applicant's case at trial that none of the alleged acts had occurred. It was the Crown case that those acts had occurred. By their guilty verdicts on those counts the jury must have found that the acts alleged did occur. The Crown was then required to prove that the acts occurred without the consent of the complainant, and that the applicant knew that the complainant did not consent to the act of sexual intercourse alleged in each count.
Count 11 is in a different situation because the complainant gave no actual evidence of digital penetration sufficient to establish that an act of sexual intercourse occurred. The complainant in counts 6, 7, 8 and 10 gave evidence that the acts occurred without her consent. She did not give any evidence of saying anything to the applicant to convey her lack of consent. There was no evidence from which the jury could infer the applicant's knowledge that the complainant did not consent to those acts of sexual intercourse.
As Bathurst CJ said in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [25]: "A proper direction as to the elements of the offence, in my opinion, is a necessary ingredient of a fair trial." Therefore, despite trial counsel's agreement with the proposed misdirection, leave should be granted to the applicant to rely on ground 1.
Having considered McGrath v R [2010] NSWCCA 48; Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6; and Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 I am of the view that despite the way the trial was conducted, the misdirection of the jury as to the elements of the s 61D offences was such an irregularity that a miscarriage of justice occurred.

[68]

Ground 2: the verdicts on counts 1, 2, 3 and 12 are inconsistent with the acquittal on count 9

The High Court in McKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 stated the test as: "In circumstances where a jury returns differential verdicts for multiple counts charged against one applicant on the basis of evidence from one complainant, this Court must consider whether the differential verdicts are irreconcilable or not. This is a test of 'logic and reasonableness'."
All the counts the subject of this ground concerned the complainant JC. Count 9 was the count on which the jury acquitted the applicant. JC gave a detailed account of the event as follows.
She was on her way home, in response to her mother calling her for dinner. She had been swimming in a neighbour's pool. She saw her father talking with the applicant in the applicant's garage. She joined them. When she and her father went to walk out of the applicant's garage, she holding her father's hand, the applicant swung his arm from behind her and his finger went through her swimming costume and into her vagina. She felt pain in her legs and stomach. She froze and could not move for a second. Neither she nor the applicant said anything. She went home with her father. She was probably about eight years old.
Later she had a shower and about 20 minutes after the shower she noticed blood on the crotch of her underpants, about the size of a 20 cent piece. She told her mother. The next morning her mother said she was taking her to the doctor. JC asked why, because she was not sick. They went to the doctor. JC was sitting in the corner and her mother was talking to the doctor. Her mother pulled out JC's underpants from the night before. JC was mortified.
JC said the doctor did not look at her or talk to her. The doctor said to her mother to not worry about it, "She's probably just shoved something there".
LC, JC's mother, said in her evidence there was not a time when JC was a child when she noticed blood in her underwear or had to take JC's underpants to a doctor.
The allegation in count 1 was that the applicant put JC's hands down his pants, after he had put MA's hands down his pants.
JC's evidence was that the first conduct she remembered of the applicant was being at the applicant's house and she and MA had both gone to bed, and were lying in bed talking before they went to sleep. She said the applicant came into the room. He walked to the other side of the room, where MA was, told JC to go to sleep, and grabbed MA's hands and put them down the front of his pants. Then he walked around the other side of the bed near JC, grabbed her hand and put it down in front of his pants for about a minute or two. There was something big there that she did not know what it was then, when she was aged about four. She said as the applicant walked out of the room he told the children "shut up". She said after the incident MA, who was about three years older than her, cuddled her and said she was going to protect her.

[69]

Ground 3: unreasonable verdicts

Having conducted my own independent assessment of the evidence in relation to counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, and 12, the quality of the evidence is such that I am of the view that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of those counts. Making full allowance for the advantages enjoyed by the jury in having observed the complainants give evidence, I am of the view there is a significant possibility that an innocent person has been convicted, having regard to the evidence which was inconsistent with and contradicted the evidence of the complainants.
There is some evidence which gives rise to a suspicion about conduct by the applicant, but in respect of the evidence relied on by the Crown in support of each of the counts, the jury should have had a reasonable doubt about the evidence of each complainant. I am not persuaded beyond a reasonable doubt of the applicant's guilt of the offences charged, and nor should the jury had been, upon consideration of the content and substance of the complainants' evidence.
As, in my view, the evidence of each of the complainants could not be accepted, there is not a basis for finding established a tendency on behalf of the accused or a basis for anti-coincidence reasoning in support of proof of the applicant's guilt of the offences charged.
The matters I have referred to above, in relation to ground 2, about the inconsistencies with and contradictions of the evidence of JC are my reasons for finding that the verdicts in relation to those counts which relied on the evidence of JC are unreasonable and unsupported by the evidence to the requisite standard.
The balance of the counts relied on the evidence of MA. MA gave evidence that the first occasion on which the applicant assaulted her was when her parents travelled to Singapore, when she was seven or eight years old, and the night before their return when she was at the applicant's house and in the bath, when she got out of the bath, the applicant wiped her with a towel and then "His hands have slipped from the towel and some fingers have inserted into me, into my vagina." She said he was kneeling down so his eyes were level with hers and she looked into his eyes "And he had the look of satisfaction in his eyes". She said the next day when she was driven by the applicant to the airport to meet her parents on their return, she ran up to her parents and was hugging them and her mother said "What's wrong?" and she turned around and looked at the applicant who gave her a cranky look.

[70]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024

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