Pseudonyms have been used for the names of the accused and the complainants who were at the relevant times children. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes.
[2]
Introduction
Mr Antin is 90 years old. He has dementia and other health problems. He has been charged with a number of serious sexual offences against 3 children. On 31 March 2021 he was found unfit to be tried: R v Mr Antin, unreported, Wollongong District Court 31/3/2021, per Acting Judge Woods QC. The Director of Public Prosecutions (DPP) then advised that further proceedings will be undertaken against Mr Antin: s54 Mental Health and Cognitive Impairment Forensic Provisions Act 2020. In accordance with Part 4 Division 3 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) a special hearing had to be conducted by this court.
On 27 September 2021 that special hearing commenced in Wollongong District Court to determine whether on the limited evidence available Mr Antin was guilty or not guilty of eight serious charges (with one alternate count). The 9 counts on the indictment related to alleged sexual interference with three child complainants. The incidents are said to have occurred in 2004 to 2005 (Complainant A); 2005 to 2011 (Complainant B) and 2016 to 2017 (Complainant C).
R v Antin [2021] NSWDC 532 | Case summary | Zoe
On 28 September 2021 on day two of the hearing the DPP directed that there be no further proceedings in relation all the of the counts that related to Complainant A; Counts 1, 2, 3 and 4. The withdrawal of those counts means that no information conveyed in the Crown's opening or the fact of the charges can be used, in any way, in my determination of the remaining counts. I proceed on the basis that those allegations simply do not exist.
Of the remaining 5 counts, two relate to Complainant B, Mr Antin's granddaughter. One, of indecent assault of a child aged under 10 namely 3 years: s61M(2) Crimes Act 1900: The other, of sexual intercourse with a child under 10, namely 7 or 8 years: s66A(1) Crimes Act. Two counts and one alternate relate to Complainant C, who lived next door to Mr Antin. One, Count 7, alleges attempt sexual intercourse with a child under 16: 66D Crimes Act. Count 8 is an alternative to Count 7. It alleges indecent assault of a child aged under 16, namely 10 or 11 years: s61M(2) Crimes Act (as later amended). Count 9 is another count of indecent assault of a child aged under 16, namely 10 or 11 years. By leave, and without objection, the dates set out for Counts 7, 8 and 9 were amended by the prosecution on 28 September: s57 of the Act.
Mr Antin's dementia is a cognitive disorder: s5 the Act. He is in custody in the Aged Care Rehabilitation Unit at Long Bay Prison Hospital. He appeared from that location via video link. Given the restrictions in place due to the COVID-19 pandemic no objection to a hearing using AVL was made and a direction was made that he not appear in person: Part 1B Evidence (Audio and Visual Links) Act 1998. The representatives appeared in person by leave.
Mr Antin had the assistance of an interpreter using a direct telephone link. At times he appeared to engage with the interpreter. At other times he put the phone down and/or wandered away. He was not engaged with the proceedings. This accorded with the diagnosis of the two expert psychiatrists given at the fitness hearing. I note that it was expected that, given the way the proceedings were to be conducted and Mr Antin's dementia, that his "appearance" in court might at times be notional as he has no capacity to understand in any real sense what is going on.
[3]
A special hearing
A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. If it is appropriate a court can be modify its modified processes to facilitate the effective participation by the defendant in the special hearing.
The fact that the defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. Mr Antin is represented by Mr Fraser Public Defender and Mr Ward, solicitor. Only the legal representatives were in the court room by my leave as the NBN links available in the Illawarra are simply not up to what should be expected.
A special hearing must not prejudice the accused any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include:
1. To ensure that justice is done, as best it can be in the circumstances, to the accused person and the prosecution, and;
2. To give an accused person an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.
At a special hearing the accused person is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty.
I must reach my verdict on what the Act describes as the limited evidence available. The verdicts open to me are:
1. not guilty of the offence charged,
2. a special verdict of act proven but not criminally responsible,
3. that on the limited evidence available, the defendant committed the offence charged,
4. that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.
If I find Mr Antin not guilty then that will be the end of the matter. If however, I find that on the limited evidence available, he did commit the offence or offences charged, it will be my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what term would have been appropriate. Other non-custodial options are available but they could not arise here.
After I nominate an appropriate term of imprisonment the Mental Health Review Tribunal will continue to review him and make appropriate recommendations. My duty at present is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that Mr Antin committed an offence charged.
[4]
Onus
The prosecution must prove each element of the offence beyond reasonable doubt. Mr Antin has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.
During the course of the hearing Mr Fraser suggested to some witnesses that the allegations may have been fabricated and concocted. Possible reasons for concoction were put in his questions and later in submissions. To be clear, Mr Antin bears no onus of proving the existence of a motive for the fabrication of the allegations against him; nor does he have an obligation to provide an answer to such a question or prove there was fabrication or concoction. I should not approach my task by assuming that a witness is telling the truth merely because I reject a reason advanced or because there is no apparent reason for them to have made up these allegations.
[5]
Elements
There is no dispute that if an incident occurred, it occurred at Unanderra within the time period alleged (as amended). The age of the complainant's at the relevant times is not in dispute. If the acts are proved to have occurred the age related element of the offence will be established. No issue about consent arises in this trial as a child under the age of 16 cannot consent to an indecent or sexual assault.
Before Mr Antin can be found guilty of counts alleging act of indecency toward a child I must be satisfied beyond reasonable doubt of each element but in particular that that:
1. He assaulted a complainant;
2. The assault was indecent.
"Assault" includes, relevantly, the deliberate touching or the application of force to the complainant, without her consent and without lawful excuse. No issue about consent or lawful excuse arise from the facts of this case. The assault can involve the same action as the act of indecency.
"Indecent' means contrary to the standards of ordinary and respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. It is not in dispute that if the incidents occurred they would be contrary to the standards prevailing in our community.
Before Mr Antin can be found guilty of the count alleging sexual intercourse with Complainant B I must be satisfied beyond reasonable doubt that there was penetration to any extent of her anus by the penis of the accused.
Count 7 alleges an attempted act of anal intercourse with complainant C. The Prosecution must prove beyond reasonable doubt that the accused intended to insert his penis into her anus. And, with that intention, did some act toward committing the intended crime immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime. In other words that he actually embarked upon the commission of the intended crime.
[6]
Complaint/Delay in complaining
The Prosecution relies upon what each complainant said after having been - as she said - sexually or indecently assaulted by the accused, as further evidence that the acts alleged did occur. There is no doubt complaints were made but the question I must ask is: does it support the Prosecution case because it makes her evidence more believable. I may also consider if there is a consistency between each complainant's conduct and the allegation she makes against the accused. Further, I can use what a complainant said about Mr Antin's conduct toward her as some evidence of the truth of what she said - that is, as evidence that he did sexually or indecently assault a complainant in the way she alleges he did.
I note that, given each complainant's age and personal history, there may be good reasons why she did not raise the allegation immediately. A failure to do so does not mean that the allegation is false: s294 Criminal Procedure Act 1985.
Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions. I need to consider the complaints in context noting what was said to whom and when the complaints were made.
[7]
Tendency
The prosecution by notice asks that evidence given by the respective complainants be cross-admissible in the trial relating to the other. Ordinarily where counts relating to multiple complainants are heard together the evidence in relation to one is not able to be used and is inadmissible in the case of the other. And, I would have to take great care not to allow a finding in relation to one complainant to influence my determination in relation to the other by a process of false reasoning that - because he did A he must have done B.
An exception to that general rule applies if after proper notice is given the prosecution allege a tendency in Mr Antin to act in a particular way or have a particular state of mind. And that tendency and state of mind was manifest when each of the counts occurred. They are:
1. A tendency to have sexual intercourse or attempt sexual intercourse with female children at his residence when he was alone with them.
2. A tendency to indecently assault female children at his residence when he was alone with them.
3. A state of mind to have sexual interest in female children who visit his residence.
The defence accepted that such evidence is cross admissible. Their response however is that it would not assist in my determination of the issues.
Where there is no direct evidence about either the alleged tendency or state of mind on a specific occasion, I can have regard to all the other evidence in the trial to reason by way of inference or deduction. If there are other reasonable explanations available these must be considered. Further, even if I accept one or more allegations it would be wrong to reason that just because Mr Antin has done some things he was more likely to have committed the offences charged. It would be completely wrong to reason that, because Mr Antin has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences charged.
The Prosecution say that I will be satisfied Mr Antin had this sexual interest and acted on it as alleged making it more likely that he committed each of the offences charged in the indictment.
However if nothing happened there can be no evidence capable of showing the state of mind alleged or any alleged tendency. The suggestion is distraction, an allegation, nothing more. I don't work backwards and presume a tendency. Rather, I go to the evidence, examine it carefully or scrutinise it carefully. Before I can use the evidence of other proved counts in the way the Prosecution asks I must make two findings.
1. That one or more of those acts actually occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon actually took place.
2. If I do find one or more of those acts alleged as a count occurred, then I must go on to consider whether, from the act or acts I have found occurred I can then infer Mr Antin had the tendency and state of mind alleged. If I cannot draw that inference, then I must put aside any suggestion that Mr Antin had a sexual interest in any or all of the complainants or a tendency to act on that interest.
That an inference could be drawn is not the test - if there are other alternatives or inferences reasonably available, inferences that are consistent with Mr Antin being innocent - then the prosecution has not proved its point. The evidence must not be used in any other way.
[8]
Assessing the Evidence
The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial as it involves drawing inferences from proved facts. I may not, as a matter of law, find the accused guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than the guilt of the accused.
In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments.
I note that for most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
[9]
Possible Inconsistency
When assessing the evidence I must consider whether or not any differences in each complainant's account are important to my assessment of their truthfulness and reliability. But when I do so I must note that the experience of courts over many years has shown that; trauma, if it was suffered by a complainant may affect people differently and that both truthful and untruthful accounts of a sexual offence may contain differences. This is because people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. It is thus relatively common for there to be differences in accounts of a sexual offence: s 293A Crimes Act 1900.
[10]
Context
Complainant B gave evidence of two incidents; the first and the last. She said that Mr Antin did similar things to her on many other occasions. This "context evidence", is before me for a limited purpose only. It is not evidence that Mr Antin committed the offences specified in the indictment. I remind myself my task is confined to considering whether the prosecution can prove beyond reasonable doubt that Mr Antin did commit one or more of those specific offences.
Even if I accept other incidents occurred I cannot substitute evidence of Mr Antin's alleged conduct on any other occasion for proof of his guilt of the specific counts. Nor can I use the "context" evidence as a general disparagement of his character. The "context evidence" may however help explain what may otherwise be puzzling or inexplicable and to enable me to realistically understand the allegations made by Complainant B; allegations that are in dispute.
[11]
Delay
Complainant B said the events occurred in 2005 and 2006. She did not report the matters until 2019. Both the delay of itself and the subsequent decline in Mr Antin's cognitive capacity has impeded the ability of those appearing for Mr Antin to defend him by testing the prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
The delay means that evidence cannot be as fully tested as it otherwise might have been. This is particularly the case with Complainant B. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that her memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. Her inability to recall precise details of the circumstances surrounding the incidents makes it difficult for Mr Antin to throw doubt on her evidence by pointing to circumstances which may contradict her. Had Mr Antin learned of the allegations at a much earlier time he may have been able to recall relevant details or find items of evidence that might have either contradicted the complainant and or supported his case which could have been used by his counsel in cross-examination of a complainant.
Mr Antin has thus been put into a situation of significant disadvantage which may have prejudiced the conduct of his defence. As a result, I must give the prosecution case the most careful scrutiny, bearing those cautions in mind.
[12]
Character
There is evidence from Detective Senior Constable Popel that Mr Antin has no criminal convictions of any relevance. I am entitled to take that evidence of good character into account in his favour when I consider whether the Prosecution has proved his guilt beyond reasonable doubt. I am entitled to reason that a person of good character is unlikely to have committed the offences charged. His good character does not provide any kind of defence. It is only one of the many factors which I take into account in assessing the evidence and determining whether I am satisfied beyond reasonable doubt a count or counts have been proved.
[13]
Complainant C
Complainant C is now 15. Counts 7, 8 and 9 are said to have occurred when she was 10 or 11. Her evidence in chief commenced by the playing of her recorded interview with police. She uncontroversially described the location of her home next door to Mr Antin and how on occasions he would give her family vegetables. She said she was familiar with his home as on occasions she would visit to play with his grandchildren
She said that on one occasion when she was in her yard Mr Antin beckoned to her to come over to his yard and then to come inside his home. She presumed it was to give her vegetables from his garden as he had done before. In the home he pulled down her tights and underpants and his own pants: Count 9. He positioned her so she was leaning over and he was behind her. He placed his penis against her "butthole". She felt it brush against her and felt the tip of it: Count 7 & alternative Count 8.
In her recorded evidence from 2020 and in her initial statement about what occurred Complainant C said (Q and A 30) "he tried to actually like properly rape me…" she was asked a number of times by the interviewing officer about when he "tried to put his genitals onto your behind": (Q 80) and then when he attempted to put his genitals, um, into your behind.. (Q 86). And then "when he was trying to put his, penis into your butthole?" (Q 86). Complaint C responded (Q & A 98 - 91) "There was probably a light brush…like the tip of it tried…like to go into me."
In evidence in court she repeated this account (TT page 6);
Q. How did you know that he was trying to stick his genitals into your butthole?
A. I felt the skin-on-skin contact.
Q. And you described a little bit later in your interview that it was "Like the tip of it tried to like go into me"?
A. Yes.
Q. When you referred to the tip what were you referring to?
A. The front of his penis.
Q. How did you know that he was trying to put the tip of his penis into you?
A. Because that's what it felt like.
Mr Fraser revisited this event in cross-examination TT17-18):
Q. And the officer then said "Could you feel anything at the time?" Your answer was "Not like, there was probably a slight brush, but I can't remember fully."
A. Yes.
Q. And the officer then asked you "And by a slight brush, what do you mean by that?" And you answered "Like the tip of it tried to like go into me." That's your full answer.
A. Yes.
Q. The police officer asked you what the tip of it tried to do, and you answer was "Like the tip of it tried to go into me."
A. Yep.
Q. When you were describing a slight brush, you were describing feeling what you thought was his penis in the area of your butthole, is that right?
A. Yes.
Q. When you called it a slight brush, were you saying that you could feel it, but it wasn't hard against you?
A. Yes.
Q. And when you said "Like the tip of it tried to like go into me." Was that something you assumed - firstly, do you know what I mean by the word "assumed?"
A. Yes.
Q. Was that something you assumed because of where it was that the tip brushed against? That is, you assumed he was trying to get it into you?
A. Yes.
Q. But what you actually felt though was a light - is that what you mean by slight brush, a light brushing against the area of your butt and butthole?
A. Yeah.
Q. And I think at one point you were asked how many times he tried to put it in your butthole and you said twice?
A. Yes.
Q. Was it the case that what you meant was, you could feel this slight brush against your butthole area twice?
A. Yes.
Q. And you - excuse me a second. I withdraw that last question. Do you remember that you were asked whether his penis was erect, at question 78 and you said that you couldn't remember?
A. I thought I said no, it wasn't.
Q. The question was, was his penis erect? Your answer was "Not that I can remember." Did you mean by that answer "no?"
A. Yes.
Mr Fraser also took her to a number of other possible inconsistencies in her accounts, relating to; hugs, the presence of other children and whether there were other children at Mr Antin's home on the day. And, the matters noted immediately above; whether she saw Mr Antin's penis and its state of erection or otherwise and what she meant by a slight or light brush. He explored the possibility she had been induced to make the statement. He put his case that what she had described was an invention.
Two teachers gave evidence of how Complaint C first raised the complaint and what they recalled was said by her. Critically, the Deputy Principal said that her typed notes made immediately, from contemporaneous handwritten notes, recorded that when she asked about the incident Complainant C had said other children were present in the garden.
Both of Complainant C's parents gave evidence. Most controversially Mr Fraser elicited from her father that on another occasion he had found his son in Mr Antin's home and that he saw Mr Antin's hands down his son's pants. A direct attack was made on the father's evidence on basis that this observation was false and a lie designed to disparage Mr Antin. The premise behind the questioning was that this allegation and that made by Complaint C were both false and designed to get Mr Antin away from the house next door.
[14]
Complainant B
Complainant B was born in 2002. She is now 19. After she was born she and her family lived in a house opposite her grandparents. Mr Antin had paid the deposit on the home. Her grandparents would babysit her and her older sister (Complainant A) as both her parents worked full time. Her parents said that when she was about 3 Complainant B exhibited sexualised behaviour and at the time mentioned her name for her Grandfather. They had the child medically examined. Nothing was found. Soon after the family moved to the country. They would visit Wollongong regularly to visit the accused, his wife and other family members. Both parents told me that one reason for the move was suspicions about Mr Antin. They also said on their visits to his home they would be vigilant in monitoring their two daughters. When the Grandmother went into care they stopped visiting the home.
Complainant B told me that she had memories of Mr Antin doing two particular things to her on a number of occasions ("every time") when the family visited their Grandparent's home. She was however, only able to provide details of the first and the last incident.
The first incident occurred when she was 3. She said that Mr Antin took her upstairs to his room. There he lowered his pants, exposed his penis and motioned that she perform a "hand job" on him. He put his hand on hers and moved her hand over his exposed and erect penis. He made noises showing enjoyment and said "good girl."
The last incident occurred the last time the family visited their grandmother. She was still living at the home when this occurred. Complainant B and her sister wanted to play basketball. Her grandfather said he would get the ball and took her to a shed in the garden behind the house. There he turned her face over a stool, lowered his pants and her underwear and put his penis in her bottom ("anally raped me.") She said she felt "discomfort:" TT page 75. He made noises showing enjoyment and said 'good girl." He had done similar things about 10 times before.
Complaint B told no one about these incidents until she was 16 when she told her mother and father and then later the police. Both her parents gave evidence of that complaint and details about the family. A cousin gave evidence about how Mr Antin and his wife's properties had been disposed of - a possible reason for Complainant C's family to have a grievance against Mr Antin.
[15]
Submissions
Madam Crown submits Complainant C gave "absolutely" clear and consistent testimony. Complaint B she said, was equally believable and gave her evidence in a "stoic" fashion with "commendable candour". Her breakdown during cross-examination was indicative of her reaction of disbelief to the suggestion the allegations were fabricated.
So far as both complainant's were concerned she submitted that any apparent inconsistencies were peripheral and did not undermine in any way what the witness said occurred. Where differences occurred, say for example with the account of the Deputy Principal, that may simply have arisen from the child misunderstanding a question or the note being inaccurate - they were of no consequence.
So far as Count 7 was concerned she said that I could only conclude that Mr Antin intended to penetrate Complainant C's anus with his penis and that all his acts were directed to that end.
She asked that I give the evidence close scrutiny and that when I did I would dismiss any suggestion of concoction and fabrication. First, because no evidence supported such assertions. And, secondly, by my assessment of how each witness reacted to the propositions put by Mr Fraser: each appeared genuinely perplexed by this suggestion.
She said I could safely conclude that the evidence proved both the state of mind of the accused and the tendencies alleged. She noted the similarities between what was said had occurred in the counts relating to actual or attempted anal intercourse.
Mr Fraser accepted that, with the exception of Count 7 (the attempt), if I accepted the evidence of a complainant each element of a Count could be proved beyond reasonable doubt. His case however is that I would have doubts about what each complainant told me.
So far as Complaint B was concerned he asked I consider what she said had occurred in the shed and her use of her word "discomfort" to describe the pain of the anal intercourse. He said while it may have been possible for Mr Antin to get his granddaughter away from vigilant parents on occasions the suggestion that she said an incident occurred on almost every visit was indicative of fabrication. In particular he noted the absence of any evidence from either parent that she had showed any discomfort or distress during or after any visit over the years, despite their being a large number of distressing incidents involving multiple acts of anal intercourse.
He also submitted that I would be concerned that Complainant B's complaint was made when she was living with her father. He had for some years had animosity toward his father about his father's failure to provide financial support to his mother while she was in care and his handing over their properties to the cousin.
He suggested that there were, for each complainant, material differences between their accounts and those to whom they complained; so significant as to indicate either that the complaints were fabricated or at the very least unreliable. He submitted, the inconsistencies and the delay in reporting meant I could not find each complainant's account was supported or made more believable.
So far as Complaint C was concerned, he said, while the account itself was not implausible the evidence about surrounding events lacked precision and cogency, such that it could not be proved beyond reasonable doubt.
Further, he said I would have a very specific concern that Complainant C's account was concocted with her father. He said the evidence from the mother indicated both parents were aware that Mr Antin had been charged with child sex offences before Complainant C went to her teachers. Complainant C's father had, he said, lied to the court when he said that he had only found out after his daughter had complained. Mr Fraser submitted that I would find that the father was a "cagey" witness who had lied about what he said he saw Mr Antin do to his son. And, that his explanations for not telling anyone including his wife "defied belief."
[16]
Tendency
There were similarities in the accounts given by each complainant about the allegations involving actual or attempted anal intercourse but that evidence was insufficient to show a modus operandi or system. It could be a coincidence. And, I note that no s98 Evidence Act 1995 coincidence notice was served.
There was evidence other children had regularly attended the premises. Nor was any evidence on this issue led from the female cousin who gave evidence and who had lived with Mr Antin and his wife as a child. The allegation that Complainant C's brother was touched was not elicited for this purpose and I do not have regard to it in respect of this issue. The evidence from each complainant is insufficient to establish the specific tendencies alleged and I do not take those matters into account.
The evidence about Mr Antin's state of mind is in a different category. Each complainant's allegation reveals a sexual interest in female children at his residence. I can take that established state of mind into account when I consider whether the counts have been proved.
[17]
Complainant C.
Three particular issues were raised by Mr Fraser:
1. Consistency;
2. Concoction; and
3. Doubt as to an intention to penetrate in Count 7.
[18]
Intention
In response to questions about what immediately preceded the acts Complainant C said she told her Deputy Principal she was playing with other children before the incident in Mr Antin's backyard. The next day she told the police she was alone and had been beckoned onto his property from her yard. And, this was the version she stuck to in court. Her Deputy Principal had asked specific questions about what preceded the incident and took contemporaneous notes. There is thus an inconsistency in her accounts about what preceded the incident. The question I must ask is: did that inconsistency undermine the credibility of her account?
Complainant C did on occasions play in the neighbouring back yard with Mr Antin's great grandchildren. She did explain this in her recorded interview (at Q & A 167 to 182). She also elided other hugging incidents with the hugging before the allegation itself (Q & A 180 to 184).
While I accept she did tell her teacher other children were present that initial complaint was just that; initial. She may have changed her account or she may have misunderstood the question asked of her by her Deputy Principal. Regardless, this discrepancy and what was said about being hugged by Mr Antin do not cause me to doubt what was said about the incident itself in the more detailed interview and in tested evidence in court. While s 293A Crimes Act 1900 is a required direction it also accords with my experience. The inconsistency required examination of Complainant C's evidence but it does not undermine the fundamental aspects of what was said. That same opinion applies to my finding regarding Count 7; see [77] below.
[19]
Concoction
In cross-examination Mr Fraser put to Complainant C and her parents that the allegations had been concocted in order to have Mr Antin move from next door as they were each aware he had been charged with offences against another child or children. The allegation was denied although different answers were given as to what they knew about other allegations.
Mr Fraser seized upon a statement by Complainant C's father that he had seen Mr Antin touching his son as another example of concoction. That allegation, which he chose not to report, provided some foundation for the propositions put. While properly put the allegations were denied and have no real foundation in the evidence. What was or was not seen and done by the father did not in any way undermine Complainant C's credibility. Nor does any discrepancy about how and when the parents found out about other allegations. The allegations were not concocted. If the father wanted Mr Antin moved he could have invented a story. Nothing said by his daughter reflects she was induced or made to say what she did and concoction could not explain what Complainant C said to her teachers or the manner in which the allegations came to light.
I give full weight to Mr Antin's good character and the various disadvantages he suffered in testing this evidence but on the limited evidence available I believed Complainant C's account and can accept it beyond reasonable doubt. That does not mean I must convict of each count, as I must consider what was disclosed in relation to Count 7.
[20]
Count 7
Complainant C was giving evidence about what she, a 15 year old, believed an older man was doing to her when she was 11. She conceded to Mr Fraser she did not see the penis and did not know if it was erect or not. She also said that she twice felt a light or slight brush against her butthole.
Before I can convict of Count 7 I must be satisfied beyond reasonable doubt that Mr Antin intended to insert his penis into Complainant C's anus. While on her account that is one possible explanation for what he did it is not the only one, particularly as there is no evidence his penis was erect. It is equally possible that he wanted to rub his penis against Complainant C's naked behind and that at his age this is was all he was capable of doing. Accordingly, so far Count 7 is concerned; he must have the benefit of that doubt.
Complainant C's evidence was clear and concise. It was delivered with no apparent guile or obvious dissembling. It was a believable account. Her complaint appeared spontaneous. Whatever criticisms were made of her father I do not find that he lied to the court. Nor could I give weight to a suggestion that he induced his daughter to make a false complaint in order to have Mr Antin moved. Frankly, if that was his motive a "lie" about seeing Mr Antin touch his son would have achieved that aim. While properly advanced I was not persuaded by Mr Fraser's collateral attack on Complainant C's credibility.
[21]
Complainant B
Despite Complainant B appearing to be a believable witness doing her best to recall events from when she was very young, the challenges to her accounts require careful consideration before what she said can be accepted beyond reasonable doubt.
There is always a danger that when attempting to recall events from many years ago that the recall is not of the events but of a later "memory" of the event: a memory that can be influenced by many factors, including what was said by others or other experiences. This is particularly so if one is trying to recall events from childhood when at the time you had insufficient knowledge or experience to know what was happening or why. In such situations a witness can honestly believe what occurred is correct but be completely wrong in that belief. The example I often give juries is of a complainant who said an event happened in a certain house when the fact was the house had not been built until 5 years after the events she believed happened there.
For that reason and the fact of delay I have to carefully scrutinise what Complainant B told the court in her interview and direct evidence: while believable it may not be accurate or reliable.
As to the challenge based on concoction it has, with respect, no substance. The responses of both Complainant B and her father to that proposition when put by Mr Fraser, as Madam Crown submitted, provide the answer. Further, the evidence about differences between father and son do not rise to a level of animosity that could support a proposition supporting concoction and fabrication of evidence. Nothing said by a witness causes me to doubt what they said in answer to these allegations.
Given the challenge to the details of Complainant B's accounts of the incidents, they require much closer scrutiny.
Complainant B's description of the Count 5 masturbation incident is, sadly, far from unusual. Nor was it impossible that during a family gathering and despite the vigilance of her parent's Mr Antin was able to be alone with her.
Complainant B's description of the Count 6 anal intercourse incident is also, sadly, far from unusual. Nor was it impossible that during a family gathering and despite the vigilance of her parent's Mr Antin was able to be alone with her.
What is unusual is her description of the "discomfort" she felt. She did speak of "pain" in her police interview at answer 258, "I just know it hurt"?:TT page 95. And she did, after I asked her to rate her level of discomfort on a scale, rate it highly. But her evidence until that point did not reflect what one might have been expected to occur after an act of anal intercourse between an adult and a very young child.
Madam Crown suggested that given the evidence, similar events had occurred about 10 times before Complainant B may have become used to what was been done to her. This is a real possibility but Mr Fraser countered with a submission that her vigilant parents, aware of the possibility of abuse, detected no behavioural or physical signs indicating any of these events had occurred.
I have given the matter close consideration and reviewed both my memory of the complainant as she gave her evidence and the transcript of the proceedings. While there were some inconsistencies in accounts given by others I accept Madam Crown's submission that they were not material. Complainant B was able to describe the two events with detail that spoke of the truth these events occurred. That she was only able to isolate two specific events and the possibility her memory is faulty or has been influenced by later events unknown, does not diminish the power of her testimony.
In relation to these Counts I also give full weight to Mr Antin's good character and the various disadvantages he suffered in testing this evidence but on the limited evidence available I believed her account and can accept it beyond reasonable doubt. I am bolstered in that finding by the evidence about Mr Antin's state of mind that I have accepted was proved.
[22]
Verdict
On the limited evidence available:
1. Count 5: Assault Complainant B, a child aged under 10, and commit an act of indecency - that on the limited evidence available, the defendant committed the offence charged.
2. Count 6: Sexual Intercourse with Complainant B a child aged under 10 - that on the limited evidence available, the defendant committed the offence charged.
3. Count 7: Attempt Sexual Intercourse with Complainant C, a child aged under 16 - Not Guilty of the offence charged.
4. Alternative Count 8: Assault Complaint C, a child aged under 16, and commit an act of indecency - that on the limited evidence available, the defendant committed the offence charged.
5. Count 9: Assault Complaint C, a child aged under 16, and commit an act of indecency - that on the limited evidence available, the defendant committed the offence charged.
I note that my verdicts in relation to Counts 5, 6, 8 and 9 constitute a qualified finding of guilt and do not constitute a basis in law for a conviction for the offence to which the findings relate: s 62(1) of the Act
[23]
Orders
1. Matters stood over to Wollongong District Court on 27 October 2021 to determine penalty.
2. Bail refused.
[24]
Amendments
26 October 2021 - At [43] - Factual amendment to line 1
27 October 2021 - At [3], [51], [55] & [73] and Cover sheet (Decision) - Factual amendments
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Decision last updated: 27 October 2021