R v CEM - [2020] NSWDC 537 - NSWDC 2020 case summary — Zoe

NSWNSWDC

R v CEM

[2020] NSWDC 537

District Court of NSW|2020-09-02

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2020-09-02

Catchwords

Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Source

Original judgment source is linked above.

Catchwords

Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Judgment (69 paragraphs)

[1]

Contents JUDGMENT Introduction and nature of the charges Counts 2 to 11 General Directions Sexual Assault Directions Factual findings Directions Inferences Failure to call and recall witnesses Markuleski / multiple counts Reliability warning Accusatory statements in the presence of the accused Forensic disadvantage Complaint evidence Complaint Direction Going to the truth of the facts asserted Going to credit Tendency evidence The elements of the offences Count 1: s66EA(1) Counts 3, 7 and 8: act of indecency under 61N(1) Alternative verdicts to counts 3, 7 and 8 Count 5: aggravated indecent assault under s61M(1) Alternative verdict to count 5 Count 6: aggravated sexual intercourse without consent; s61J(1) Alternative verdict for count 6 Count 9: sexual intercourse with a person above the age of 10 and under the age of 14; section 66C(1) Alternative verdict re s66C The evidence Generally Count 1. Counts 2, 4, 10 and 11 Count 3 Count 7 Count 8 Count 9 Count 6 Count 5 The last time Complaint evidence To K (though not remembered by K) Jack Pam (and X) Susan To her father To her mother Tendency evidence Y Chrissy Pell v The Queen [2020] HCA 12 Conclusions Matters to be considered Complaint and tendency evidence Frequency of X sleeping over at 1 Canada Street How often was the accused at 1 Canada Street? The availability argument Concoction Police reconstruction No evidence of counts 2, 4, 10 and 11. The last time Timing No witnesses of any inappropriate behaviour at all by the accused The reliability of the evidence of X Generally Count 5 (mattresses allegedly on floor) Count 9 (allegedly on top bunk with Fiona) Count 6 (allegedly on bottom bunk with K) Count 3 (allegedly exposes penis from verandah) Count 7 (alleged exposure when Fiona leaves room) Count 8 (alleged exposure when sitting in daughter's room) Statutory alternatives Count 1 Result VERDICTS

[2]

Introduction and nature of the charges

The accused stands trial on an indictment of one count of contravening section 66EA of the Crimes Act, which alleges that he, as an adult, maintained an unlawful sexual relationship with a child, the complainant. The date range pleaded in the indictment for count 1 is between January 2007 and 31 December 2010. The complainant was born on 7 August 1998, so that she was aged between 8 and 12 in this period. The accused at all times was over the age of 18, so that there is no dispute that the elements of count 1 of "adult" and "child" are relevantly made out.
As at 1 January 2007 the complainant (variously referred to hereafter as "the complainant" or "X", with no disrespect to her; all names and locations have been anonymised in these reasons) resided at C St, Smalltown with her parents and siblings having moved to that address some years before. Their house backed on to 1 Canada St Smalltown, where there lived as at 1 January 2007 (and had lived there prior to the complainant's family moving in to C St), the accused, his partner and their children, and a child of the accused's wife from an earlier relationship. One of the children of the accused, K, was a year younger than the complainant, and they had become firm friends by this time. This extended to each of the complainant and K sleeping over at the others home. The case for the Crown is that on some of the occasions the complainant slept over at K's home (that is, at 1 Canada Street) the accused committed a range of sexual offences against the complainant, though it was alleged sexual offending also occurred at times when the complainant walked through the accused's backyard, which provided a shortcut to her family's horses, which she watered.
The actual alleged "unlawful sexual acts" (to use the words of count 1 under s66EA) were identified in count 1 itself as being "1. touching his own penis in the presence of [the complainant]. 2. Touching [the complainant] on the vagina. 3. Digital-vaginal sexual intercourse with [the complainant]". Also pleaded in the indictment were 10 alternative charges. The Crown emphasises a dual role played by these alternative charges. One role is to particularise the offending relied upon to make out count 1. Section 66EA(2) provides an "unlawful sexual relationship" is a relationship in which an adult engages in 2 or more "unlawful sexual acts" with a child, though to establish such a relationship more than the required unlawful sexual acts needs to be proven. The Crown allege that this aspect of the "unlawful sexual relationship" is made out by establishing 2 or more of the 10 alternative counts, with the proviso that in so far as count 1 is concerned, the relevant unlawful sexual act can be made out without the finder of fact being satisfied of the particulars of that act that it would have to be satisfied of when the act was charged as a separate offence; s66EA(5)(b). This is especially relevant in the present case in terms of the date range of the alleged alternate counts (or "instances" so far as s66EA is concerned), for it became clear that some of these instances, if established, may well have occurred outside the asserted date range. If that is the case, it does not prevent such unlawful acts relevantly being an unlawful act capable of making up the element of s66EA in that regard. It would be legitimate for an indictment alleging a count under s66EA to simply set out particulars of the unlawful sexual acts relied upon without alleging alternate charges, in the manner seen in ARS v R [2011] NSWCCA 266, although that case additionally adopted the approach of alternate charges as has been done here. It is important to note, as the Crown made clear, that proof of two unlawful sexual acts, without more, is insufficient to make out count 1. The Crown needs to also establish a relationship, and that it was maintained. The second role of the alternate charges is to be true charges in the alterative, which to be made out need to satisfy the finder of fact of the particulars of the relevant conduct in the manner required for a separate offence.
The "unlawful sexual acts" as pleaded in count 1 have been set out above. Although the particulars of these alleged unlawful sexual acts do not need to be wholly satisfied, it remains necessary for the Crown to establish beyond reasonable doubt that they did occur; that is, for example, if the allegation was of digital vaginal sexual intercourse and the evidence established sexual touching without penetration, then the alleged unlawful sexual act has not been made out, and, in the absence of a relevant allegation of sexual touching, nor has an unlawful sexual act for the purposes of satisfying that part of the s66EA charge (leaving aside possible statutory alternatives).
That this is the correct approach is supported by ARS at [115], and I note particularly the last 3 lines of that par and the cited par (b). What was said there was that it is unnecessary to prove beyond reasonable doubt when the alleged offending occurred, but "it must be proved beyond reasonable doubt that the nature of the alleged foundational act answers the description which is itself stated with reasonable precision in the indictment". It is for this reason that it is not sufficient for the Crown to prove in the course of the trial some previously non particularised unlawful sexual act, even if it did fall within the 3 categories of conduct pleaded in count 1. Those 3 categories serve to identify the type of conduct being alleged, but they could not be said to state the "foundational acts" with reasonable precision. Notably it is acts of the type described by those categories which make up the alternative counts, and as I understood the Crown case throughout the trial, the alternative counts were intended to have the dual purpose described above, a view which is supported by the discussion in submissions at T683.25 - T685. I make this observation because as noted below at [249] the Crown did ultimately make a submission that some unlawful sexual act, neither particularised nor pleaded as an alternative count, could constitute one of the necessary "unlawful sexual acts" if it fell within the 3 categories pleaded in count 1. For the reasons given here, and at [6], [7] and [249] below, I reject that submission.
Section 66EA has been amended since ARS was decided. Having considered the current section, applicable to this case, my view is that the requirement to prove the "instance" of an unlawful sexual act still extends to proving the unlawful sexual act that has been particularised. The provisions of the current s66EA (4) and (5) impact on the need to allege and prove particulars; they do not impact on the need to prove the type of unlawful sexual act being alleged that needs to be stated with reasonable precision in the indictment.
Counts 2 to 11 inclusive are charges of sexual offending. The date range of these charges does not in each instance match that of count 1. The beginning date of the range is 1 January 2007, and the end date (in respect of counts 10 and 11) is 6 August 2011, the day prior to the complainant's 13th birthday but beyond the end date of count 1 of 31 December 2010. The potential significance of this is that if it was found that this conduct did occur, but after 31 December 2010, then that conduct without more would not support the s66EA charge as being part of the two or more unlawful sexual acts required. As it happens nothing turns on this as there was no evidence of counts 10 and 11, but it does demonstrate that whilst s66EA permits latent duplicity (see ARS at [115]), it is not a section free of any requirement of particularity.

[3]

Counts 2 to 11

The Crown opened by outlining that the relationship of the accused and the complainant was alleged to be that of neighbour and father of her close friend and that they had regular contact. The unlawful sexual acts relied upon to found the unlawful sexual relationship were said to be exposing himself and indecently and sexually assaulting the complainant. It was said this occurred many times.
The opening given as to counts 2 to 11 was brief, but serves to give some essential character to the matters alleged, and allows a meaningful comparison with the evidence later adduced. The opening in respect of each count was as follows: Count Charge Opening 2 61O(2); aggravated act of indecency < 10 In colder months of 2007: D exposed himself from verandah as complainant walked through property 3 61N(1); act of indecency < 16 2008 when complainant 10: D calls her to verandah re phone and exposes himself 4 66C(1); sexual intercourse bw 10-14 Summer 2008 when complainant 10; Digital vaginal intercourse whilst in K's bed with K and K asleep 5 61M(1); agg indecent assault (<16) 2008 when complainant 10; D rubs her vagina while she in lounge room with K and other children after birthday party 6 61J(1); agg sexual assault (<16) Not long after count 5 when complainant 10, after swimming at Bellwood Creek, digital as she lay in K bed; C kicks out 7 61N(1); act of indecency < 16 Weekend day late 2008 or early 2009 D masturbates himself while C plays Nintendo on a double bed 8 61N(1); act of indecency < 16 Soon after count 7 D exposes himself whilst the complainant plays Nintendo with D's children on the floor 9 66C(1); sexual intercourse bw 10-14 On the same day as count 8 D has digital vaginal intercourse with the complainant while she in a bed on her own in K's room, awake and D knew she was awake 10 66C(1); sexual intercourse bw 10-14 Late 2010 when complainant aged 12 digital vaginal intercourse in K's room and exclusive use of that bed and that room for the night 11 66C(1); sexual intercourse bw 10-14 Next morning after count 10 in the same bed D has digital vagina intercourse with complainant again

[4]

General Directions

In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.
I direct myself that the onus of proof is "beyond reasonable doubt" and that the Crown bears the burden of proof.
The Court has heard the submissions of both the Crown Prosecutor and of Counsel for the accused. The Court will consider those submissions and give to them such weight as it thinks they deserve. The Court notes that in no sense are those submissions evidence in the case.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness's evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness's evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
I note that the accused has a right to remain silent when spoken to by police and that the evidence of the officer in charge, DSC Richardson was that the accused exercised this right. All people in this country have a right to silence - that is, to choose not to answer questions put to them by the police. That is what the police officer told the accused when he was asked if he wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.
In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the accused's silence cannot be used against him in any way at all.
The accused in this matter did not give evidence. I remind myself that he has, as we all do, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence.
I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do. In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offences charged or any one of them.
I direct myself, as a matter of law, that the accused's silence in court cannot be used against him. His silence does not constitute an admission and no such inference can be drawn from that fact. Nor must his silence be used by me to fill gaps in the Crown's case or to make up for what I might regard as deficiencies or defects in the Crown's case. I must not speculate about what might have been said in evidence if the accused had given evidence.
This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.
The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge/s.

[5]

Sexual Assault Directions

I warn myself pursuant to s294 of the Criminal Procedure Act that the absence of, or delay in complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint.
I warn myself pursuant to s 306ZI regarding the use of CCTV equipment during the trial, and pre recorded evidence (namely the first statement of Y) and played in the Court on this trial before me, that these procedures have been introduced to facilitate the taking of evidence and that I should give no more weight to the evidence given by such means than I would had it been given "live" in open Court and I note that the accused is not to be prejudiced in any way by the use of such procedures. I note a number of witnesses, including the complainant, appeared by AVL, and I give myself a warning to that same effect in respect of that evidence.
In this case there are differences in the accounts given by the complainant of the alleged conduct of the accused. In such circumstances s293A permits me to warn the finder of fact, that is myself, that experience shows people may not remember the details of a sexual offence in the same way each time, that trauma may affect the way people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences, and that it is up to the trier of fact to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.
I note section 294AA, which prohibits the giving of a warning to a finder of fact as to complainants as a class are unreliable witnesses. The approach I must take is to consider the complainant's evidence for what that evidence is, without heightening or tainting it because of the fact it is the evidence of the complainant.

[7]

Failure to call and recall witnesses

The accused seeks a direction addressing that certain witnesses were not called by the Crown. The direction sought is that in respect of these witnesses, I can take the fact that there was no evidence from that witness/es into account when deciding whether the Crown has proved the guilt of the accused. This does not mean I can guess or speculate what each of those witnesses would have said if they had been called, for I must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is reasonable doubt about the accused's guilt. The witnesses concerned were Pam, Jan, Fiona, DP and DC Ridgeway. It is also argued to relate to Chrissy, the mother of Y, who was not recalled to give evidence in relation to exhibit N, which the Crown later relied on to argue for a date for the complaint made by Y to Chrissy that was different to the evidence of Chrissy.
My view is that it is appropriate to give this direction, and I do so. The basis for this view is that, in relation to Jan and Fiona, they are, on the Crown case, actually present or nearby when some of the alleged offending occurs. That there is no evidence from them is in the circumstances a matter to be added to all the other considerations on the issue of the accused's guilt. As to Pam, there is no evidence as to what complaint may or may not have been made by X to her, again something which should be taken into consideration. Similarly with DP, in respect of the issue of what Chrissy may have known about X's complaint and when. As to DC Ridgeway, there is no evidence from him as to why the investigation into X's complaint was suspended in July 2019. Lastly, I give this direction as to the failure to recall Chrissy, who gave no evidence as to what became exhibit "N" and the time at which Y was at a particular school. That document was only obtained by the Crown after Chrissy had left the witness box, and so that document has not been tested by asking Chrissy about it, and, in line with the above, the position is there is no evidence of Chrissy about it.

[8]

Markuleski / multiple counts

There was argument as to this direction also. With respect to the Crown, I cannot see how as a matter of logic this direction should not be given, albeit that it needs to be viewed in the context of a s66EA charge, as set out above.
There are 10 counts in the alternative to count 1. As outlined above, to make good count 1 there needs by definition (section 66EA(2)) two or more unlawful sexual acts engaged in by the accused with or towards the complainant. In this case, the Crown relies on the alternate counts as being the particularised instances of those required unlawful acts (see the reference to submissions at [5] above). The Crown suggests that as there is only one charge under s66EA, then Markuleski is not an appropriate direction. Yet to make out s66EA two or more instances must be made out, and I would add, beyond reasonable doubt, (but as qualified by s66EA(5)) for without them the element of the offence cannot be made out. In my view in considering whether the instances/alternate charges are made out, a Markuleski direction should be given and I note such a direction was given in the matter of O'Toole [2020] NSWDC 423 per Mahony DCJ. Accordingly I direct myself that if I was to find the accused not guilty on any of the alternate charges (or, viewed as part of the s66EA charge, if I was not satisfied beyond a reasonable doubt as to any of those "instances" occurring (but as qualified by s66EA(5))) particularly if that was because I had doubts about the reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts / instances.
The direction continues that if I find the complainant's evidence in relation to one or more of the counts lacks cogency or reliability, such that I am not satisfied beyond a reasonable doubt as to that count being made out, then before I could be satisfied as to another of the counts, there would need to be something about the evidence concerning those other counts that makes it different to the earlier count of which I am not satisfied.

[10]

Accusatory statements in the presence of the accused

The parties agreed this direction should be given in light of the evidence of Chrissy, who said she confronted the accused by saying "Why the fuck did you touch my daughter" with the accused allegedly replying "I don't know".
What one person says to another is not normally relevant evidence. Here the evidence is being led because the Crown asserts that the response by the accused to the statement made to him in his presence is an admission by the accused that what was contained in the statement was true. It would be different had the accused denied the allegation made or had given some innocent explanation to rebut the allegation. The evidence is only relevant if I find that the accused's response when confronted with the allegation amounted to an admission that it was true.
Take an example away from the facts of the present case. Assume that a man has been the driver of a motor vehicle which has struck a child, causing serious injuries. Assume that the mother of the injured child immediately after the accident approaches the driver and says to his face, "This is your fault you are always driving too fast around this street ignoring the children playing on the road". If the driver says nothing to that allegation, a jury could find that the failure to respond amounted to a silent acceptance of the truth of what was said because the driver had nothing to say in defence to the allegation made to him.
In that case, the statement made by the mother would not, of itself, be relied upon by the Crown as evidence that what she asserted was true. Before any part of that statement made in the presence of the driver could be used as evidence against him, a jury would have to be satisfied that the statement was made; that the driver heard it; and that he had the opportunity to respond to it but did not respond because he accepted the truth of what was said. There may be an alternative explanation for the driver not responding. It may be that he did not hear what the mother said, or that he heard it but was too upset to respond. Or it could be the case that he treated the allegation of the mother as unworthy of a response.
In the present case, I need to first decide whether I accept that Chrissy made the statement to the accused; whether the accused heard it; and whether he had an opportunity to respond. I also need to decide whether I accept that the accused did not respond or did respond. If I do accept the evidence about each of those things, I then need to consider whether I accept that by his response the accused had acknowledged that what Chrissy had said was, either in whole or in part, true.
It is really a matter for me to apply my common sense and experience of life and what I might expect a person in the position of the accused to do or say when faced with such an allegation, although I should also consider that people do not always act predictably in certain situations. Here I am considering the conduct of the accused, and not the conduct of some hypothetical person his position. I must also consider whether there is an alternative explanation for the accused's response other than that he accepted the truth of what Chrissy said. In this case it has been put that this alleged conversation did not occur.
If I accept this alternative explanation then this part of the evidence would not advance the Crown case at all and may be put completely to one side. However, if after considering all of the circumstances I have mentioned, I am satisfied that the accused did acknowledge, either in whole or in part, the truth of what Chrissy said, then this is something I can take into account along with all of the other evidence in the case in my assessment of whether the Crown has proved the guilt of the accused beyond reasonable doubt.

[15]

Tendency evidence

The accused is charged only with the offences stated in the indictment. I have before me evidence that the Crown relies upon asserted to establish that he committed those offences. However, there is also evidence before me that the Crown relies on to assert that the accused committed "other acts" involving Y.
Those alleged acts are of touching Y on her "boobs" and in the genital region whilst, or soon after, waking her up. This is alleged to have happened in about 2015 when Y was about 8.
The Crown says that evidence reveals that the accused had a sexual interest in young pre-pubescent girls and acted on that interest with Y as set out above, thus making it more likely he committed the offence/s charged in the indictment.
The evidence suggesting that the accused had the asserted tendency can only be used by me, in the way the Crown asks me to use it, if I make two findings. The first finding is that one or more of those acts occurred. In making that finding I do not consider each of the acts in isolation but consider all the evidence and ask myself whether I find that a particular act or acts relied upon actually took place. If I find that none of the acts occurred, then I must put aside any suggestion that the accused had the tendency advanced by the Crown.
In determining whether or not any of the other acts or other matters on the indictment are established for the purpose of tendency evidence, I do not need to be satisfied of it beyond a reasonable doubt. The standard of proof has been expressed as to be "generally satisfied".
If I do find that one or more of those acts occurred, then I go on to consider whether, from the act or acts that I have found occurred, I can conclude that the accused had the tendency the Crown alleges. If I cannot draw that conclusion, then again I must put aside any suggestion that the accused had the tendency alleged.
So, if having found one or more of the acts attributed to the accused occurred and I also conclude that the accused had the tendency alleged I may use the fact of that tendency, or state of mind, in considering whether the accused committed the offence(s) charged.
I should bear in mind that this is just one part of the evidence relied upon by the Crown. I should give it what weight I think it deserves in the context of all of the evidence before me.
The evidence of other acts must not be used in any other way. It would be completely wrong to reason that, because the accused has committed one crime or more acts of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offence/s charged. I cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charge/s in the indictment. That is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot use it in any way against the accused unless I accept the Crown's argument that it discloses a tendency and therefore makes it more likely that the accused committed the offence/s charged against him.
Even if I accept that the accused has a tendency as alleged, I need to consider whether or not he acted in the ways as alleged in the indictment.
The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have acted and thought. I must be careful to avoid allowing any emotional response to distract me from a calm and objective assessment of this issue.
I must not substitute the evidence of the other acts led by the Crown to prove that the accused had that tendency for the specific allegations in the indictment. I am concerned with the offending alleged in the charges. If I find that the accused had the tendency or state of mind alleged by the Crown it may indicate that the particular allegations are true, but I must remember I am required to find that each specific charge is proved beyond reasonable doubt before I can find the accused guilty of that charge.

[22]

Count 6: aggravated sexual intercourse without consent; s61J(1) The Crown must prove the following elements beyond reasonable doubt: That on [DATE as per indictment], in [Smalltown] in the State of New South Wales, the accused:

Had sexual intercourse with X;
In a circumstance of aggravation, namely that X was under the age of 16; and
Without X's consent; and
Knowing that the second complainant did not consent. "Sexual intercourse": Relevantly to this case, sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person. Sexual intercourse includes sexual connection occasioned by the penetration by a finger of a female's vagina, which is what the Crown alleges, and the accused denies, occurred in this case. "Consent": The accused does not have to prove that the complainant consented; it is for the Crown to prove beyond reasonable doubt that she did not. A person consents to sexual intercourse if they freely and voluntarily agree to have sexual intercourse with another person. Consent can be given verbally or expressed by actions. Absence of consent does not have to be in words; it also may be communicated in other ways, such as the offering of resistance. However, the offering of resistance is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily. If the Crown fails to prove that the complainant was not consenting, the accused is not guilty of this charge. If I am satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainant, and also that she did not consent, then I must go on to consider the third element: knowledge. "Knowledge": The Crown must also prove beyond reasonable doubt that the state of mind of the accused at the time of the alleged sexual intercourse was that he knew that the complainant did not consent to sexual intercourse. The accused can know the complainant does not consent because of what the complainant says or does at the time of, or prior to, intercourse. To prove that the accused knew that the complainant did not consent to sexual intercourse the Crown must prove one of three things:
That the accused did not honestly believe that the complainant was consenting, or
That he was reckless as to whether the complaint consented, or
That, if he did have an honest belief the complainant was consenting, he had no reasonable grounds for that belief. "Recklessness": To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either: a. That the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse, or b. The accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. But in considering what the accused did in this regard I cannot take into account the fact that he was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol. "Reasonable Grounds": if I am not satisfied that the accused actually knew the complainant was not consenting I should consider whether the accused might have believed, wrongly, that the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. The Crown must prove one of two facts before I can find the accused guilty. Either: (i) that the accused did not honestly believe that the complainant was consenting; or (ii) that, if he did have an honest belief the complainant was consenting, that he had no reasonable grounds for that belief. It is the accused's actual state of mind which I am concerned with, not what I may have realised, thought or believed in the circumstances nor what a reasonable person would have realised, thought or believed. In considering whether or not the Crown has proved that the accused knew that the complainant was not consenting or that he was reckless about it or that he did not have an honest belief that she was consenting or, if he did, he had no reasonable grounds for that belief, I must consider all of the circumstances of the case, including any steps he took to work out if the complainant was consenting, including what consideration he gave to the complainant's actions as he saw, heard and perceived them. But, I must not have regard to any self-induced intoxication of the accused. If the Crown has established each element beyond reasonable doubt then the verdict would be guilty. If I am not satisfied beyond reasonable doubt of any one of these elements then you would find the accused not guilty of the count on the indictment.

[26]

Generally

As is often the case with allegations of sexual assault, the only direct evidence of the actual offending conduct at trial is the evidence of the complainant. Commonly this is due to this style of offending occurring when the only people present are the accused and the complainant. That is not the situation in respect of all the counts on the present indictment. The offending alleged in respect of counts 7, 8 and 9 is alleged to have occurred when others were present and awake, albeit for count 9 Fiona was out of the room at the alleged crucial moment. The offending alleged in respect of counts 6 and 5 is said to have occurred when another person was present, albeit asleep.
In this case X was aged between 8 and 12 in the time range of the indictment, and was aged 22 at the time she gave her evidence, and 20 at the time of her first statement to police. There was evidence from X that she had made remarks separately to both K and X's friend Pam at the time of some of the alleged offending, albeit not in very specific terms (see below). Beyond those few remarks, there is no evidence X said anything to anybody prior to June of 2018, when she spoke to a man named Jack.
I remind myself of the directions made above in relation to sexual assault allegations and in particular that a lack of corroboration or a delay in complaint does not of itself form a basis to doubt what is being stated by a complainant.
In addition to the evidence of X, the Crown relied on photographs (exhibits B and C) to demonstrate some aspects of the house and backyard of 1 Canada Street, and to evidence the time at which X was spending time with the children of 1 Canada Street. Some of the photos also went to showing the accused with his family, which is relied on to counter the case put by the accused that in the period of the alleged offending he was largely absent from the family home, "the availability argument". In addition to this the Crown relied on complaint evidence and tendency evidence, which I consider below.
A significant amount of time in the trial was spent addressing whether the accused was available at 1 Canada Street to have been able to offend in the manner alleged. The case being put by the accused was that from late 2007, if not earlier, he spent decreasing time at 1 Canada Street. This was supported by an AVO document which records his former partner ("Susan") saying they separated in December 2007. That AVO was made in February 2008, and part of that order prohibited the accused from residing at 1 Canada Street. This is significant because according to the opening, counts 3 and 5 occurred in 2008 when X was 10, (and count 6 "soon after" count 5) so that it was from 7 August 2008 (X's birthday). The accused was in rehab from 22 July to 25 November 2008, and it is likely that on release he initially, for some unclear period of time, stayed with his brother at New Town. Even allowing for that period to be as short as a week, the result is that based on the opening the date range for counts 3 and 5 (and probably count 6) shrinks from 5 months to 1 month, December 2008. There was no evidence linking any of the offending to Christmas, or of them all occurring at the same time, albeit possibly "soon after". The same problem for the Crown exists with counts 7, 8 and 9 as these were said to have occurred in late 2008 or early 2009.
The significance of this is that, by the opening, what was meant to be offending occurring over a 4 year period as part of a relationship that needs to be proven, and proven also to have been maintained, is in fact one where the six counts for which there was evidence occur in late 2008 and early 2009 period, which happens to be the period of time where the evidence is strongest that the accused was less frequently at Canada Street, to the point that for all but December 2008 it is really not in dispute that he was not there in the relevant part of 2008.
Evidence from the Crown as to this issue came from a neighbour, KA, X's parents (also neighbours), Susan, a work colleague, a relative and a school teacher. The Crown also put forward a documentary case based on bank records showing activity on the accused's card occurring in Smalltown at relevant times. The evidence of the accused's former partner, Susan, included an assertion that the accused provided Centrelink with addresses different to 1 Canada Street so that they could, according to her, receive separate benefits. Documents were tendered from the RMS, Centrelink, and Medicare showing addresses different to 1 Canada Street. Police records showed the accused's address variously as 1 Canada Street or at one of the other addresses the accused maintained was his residence at different times.
The prospect that there was some fraud of Centrelink occurring is in my view a real one, based on Susan's evidence. Yet I note that the RMS records show a change of address to the accused's brother's address in Smalltown on 12 December 2008, shortly after the accused left rehab, which is in some way consistent with Susan's evidence of the accused being there for a short time after rehab, and would suggest it lasted beyond the first week. On this evidence there is a real prospect the accused was not at Canada Street at the time of the offending alleged by counts 3 and 5, and possibly 6, and also that it would have the same effect on counts 7, 8 and 9 to the extent they are alleged to have occurred in 2008.
In considering the evidence it assists to set out the variations in dates across the evidence, the opening, the indictment and so far as it was evidenced, the statements of X. This is shown in the following table: Count Indictment Opening Evidence Statement 3 1 January 2008 to 6 August 2009 A day in 2008 when X is 10 1 September 2004 (or maybe Jan 2005) to December 2010; see [104] below T104; when 10 in 2008 "a bit estimated" When X 8, so before 7 August 2007; see [110] below 5 1 January 2008 to 1 January 2009 2008 when X is 10 About 11; T57, so Aug 2009-2010; could also be 10, Aug 2008-2009 also 6 1 January 2008 to 6 August 2009 Not long after count 5, when X is 10 Maybe 10; so Aug 2008- Aug 2009 2008; T138 7 1 July 2008 to 1 July 2009 Late 2008 to early 2009 1 September 2004 to December 2010; Late 2008 / early 2009 8 7 August 2008 to 1 July 2009 Soon after count 7 (inferentially as for count 9) 9 7 August 2008 to 1 July 2009 Same day as count 8 Year 3 or 4, so 2007 or 2008; though in XX she adhered to statement Late 2008 or early 2009

[29]

Count 3

X began her evidence in chief perhaps somewhat inauspiciously. At T24 she was asked that she was here to tell the Court some things that happened between herself and K's father over a period of time to which she said yes. She was then asked "How did that start". That is a four word question referring to things that allegedly happened between her and K's father which she had just readily agreed she was here to tell the Court about. Yet her response to that simple question was "Could you maybe rephrase that for me". When asked what was the first thing she remembered happening between herself and the accused she said "him showing me his private areas" and then said "he would show me his penis and touch it. Sometimes when I was at the house or sometimes passing through the yard". When asked to give specific examples of this she said:
A. Yes, there was the morning that I was going to do my horses water, and I was walking through the yard and he called me over to his veranda, where he was sitting, and he called me over to look at a phone of his, and when he passed it down to me he pulled his penis out the side of his shorts, 'cause he was above me, and he played with it and making it very known that it was there
She went on to say that she saw him hold his penis and play with it making it visible to her out the side of his shorts. When asked what time of day it was she said it was probably morning before school. She was not sure if it was a weekday or a weekend, despite having just said it was probably before school. She was not sure what time of year it was. When asked how old she was or what school year she was in she said "I believe it was at school I'm not sure on the age" and then when asked which school primary or high school said primary school.
We know from Exhibit A that X finished primary school in year 6 in 2010. The evidence at T92 was that X started primary school in kindergarten at St Mary's School on 1 September 2004. Accordingly the time in which this event is alleged by X's evidence to have occurred is anywhere between those two dates of 1 September 2004 (or January 2005 if year 1 is considered the start of primary school) and the end of the school year in 2010, so December. The indictment pleads that this event occurred between 1 January 2008 and 6 August 2009. On this evidence it is very possible that the event the subject of the evidence occurred either before or after the time alleged by the indictment.
X did give evidence of the state of the veranda rail as consisting of only a top rail and a middle rail and of not having vertical palings. Part of exhibit B showed the veranda with vertical palings in 2019. In exhibit C, photo 5 showed the railing as only with a top and middle rail, and with K in the photo aged according to her mother (Susan) about 7 or 8. This would age X as about 8 or 9. Just when the vertical palings were installed is not clear on the evidence. Susan said they were installed about 10 years ago, so about 2010, and when X was aged about 12. I consider the evidence of the state of the railing as supporting the evidence of X in respect of count 3.
At T27 X described how she was called over towards the verandah by the accused who asked her to look at his phone because it was broken and whilst she did so he kept "like, playing with his penis in his pants and saying my name so when I look up I would be able to see, I'd see his penis hanging out of his pants and when I gave the phone back he continued to, like, keep his hand there and make it visible".
When asked when in relation to giving her the phone did the accused start touching his penis she said that as he was handing it to her he had his hand on it and it "sort of didn't didn't remove it until I gave the phone back". A few questions later at T28 she said that he started to touch his penis just afterwards when he stood up. Prior to that when asked whether he did anything regarding his penis when he crouched down to give her the phone she said she could not remember.
My impression when hearing this evidence was that the complainant had a memory or was sincerely stating to the court what she believes to be a memory, of an occasion the essential parts of which were being called over by the accused to the backyard veranda as she walked to her horses and of her then noticing the accused's penis and with his hand down his shorts. She said these shorts were blue football shorts. She said they were loose fitting and went halfway down his thigh with a drawstring and that he touched his penis down the waistband and saw the penis because she was below him looking up.
The account of the complainant in the paragraph before last is capable of three different interpretations as to when the accused touched his penis. It was either from the very beginning of the interaction, after the accused stood up having given X the phone or at a time X doesn't remember. The account details referred to in the immediately above paragraph allow for an interpretation of an adult male early in the morning wearing football shorts and thoughtlessly scratching himself. Whilst this may not be considered terribly likely by some, I consider it far from a fanciful scenario, and certainly possible. It goes without saying that the presumption of innocence applies and the factfinders mind must be kept open.
In cross examination it was put to X that she did not have horses when she was 7 to which she said that she had always had horses since she was very young. This adds to the prospect of this matter falling outside the timeframe in the indictment. When asked how old she thought she was she said maybe 8 which would include the period ending 6 August 2007 and again outside the indictment timeframe which commences 1 January 2008.
Three significant matters arose in cross examination. The first was that in addition to estimating her age as 8 as noted above she agreed that she in fact told police this event happened in 2008 when she was 10 years old, which explains the indictment. She said in this regard she was not certain and that what she said in a statement was "a bit estimated". When she was asked whether that is what she told the policeman, that it happened in 2008 she said "No. We pieced together some information and memories that I had and that was our rough year, estimate". She then frankly conceded that it may have happened earlier in 2007.
To my mind this puts an end to this count as an alternative count but not necessarily as an instance of sexual offending for the purposes of section 66EA. I find it also disturbing that it seems so plainly to have been a joint effort of reconstruction. This is not gratuitous criticism, for the compiling of statements of complainants concerning alleged sexual abuse must be very difficult, but that should not become a hybrid reconstruction of police suggestion and incomplete memory. The prospect of injustice arising as a result is plain.
Next it became apparent that X told the police the accused's hand reached up his shorts from the bottom of the leg to grab his penis as opposed to descending from his waistband as she had said in chief, a version she never gave in the statement. Later at T106 X said that he had changed positions by the time she gave the phone back and his hand was then up inside the shorts instead of down through the waistband. Whilst I generally considered X to be frank I found this answer tending towards the creative in explaining her inconsistencies.
Lastly from cross examination X offered that "it was sort of very normal for him to have his hand down his pants". This suggests some kind of habit for the accused to have his hand in his shorts. To my mind that kind of behaviour is consistent with the possibility of the accused simply scratching or adjusting himself and the memory with the passing of the years has become something quite different.
Limiting myself to the evidence in chief I had concerns about the ability of the evidence to establish count 3. The additional matters that arose in cross examination add to those concerns. I will consider all of the evidence before reaching any final conclusion on this and the other counts.

[30]

Count 7

Having given evidence as to count 3 X was asked if she could tell the Court about any other occasion that she saw the accused's penis. The evidence that followed is agreed to go to count 7. X said there was an occasion when she was lying on a bed with Fiona both on their stomachs playing the DS game console. Fiona went to the bathroom and the accused then entered the room, stood in front of X, put his hands down his pants and made his penis visible "and I suppose you could say masturbated himself in front of me". When asked to describe this again X said at T30:
Well he stood in front of me and I didn't look up at this point but his hands went down his pants and he said my name a few times to look up and he was making his penis visible and stroking it back and forth saying my name, wanting me to like look up at it and when I looked up, like I seen what I seen and I looked back down and he'd say my name again to look up and he just stood there stroking it and just making it visible for the duration that his daughter was out of the room.
X said the accused put his hands down and sort of slid it out the side so it was visible meaning the bottom of the leg on the shorts. She said he was just moving them back and forward stroking them, which she then clarified to be "it" which she clarified to mean stroking his penis. When Fiona returned he "pretty much just took his hand straight out and turned around and was like it never happened".
As with count 3 there was a difficulty in dating this event. X did not know what school year she was in save that it was primary school. She did not remember what year it occurred. She did not remember how old she was when it occurred. She did not remember what day of the week it was. She did not know if it was a weekday or a weekend.
As with count 3 this thus allows for the possibility of this event occurring at some point between 1 September 2004 when X commenced primary school (or January 2005) and December 2010 when she finished primary school. This evidence gives no indication as to whether this event occurred before or after count 3.
In cross examination this vagueness with dates was confirmed and the witness was then taken to her statement where she said it occurred on a weekend day in late 2008 or early 2009. She confirmed she thought it was a weekend because she did not spend much time there during school days. She was then asked that if when she told the police the date was late 2008 or early 2009 was that a guess and she said "yes I guessed what age I would have been considering they just got the DS consoles and they had only come out sort of the year before so it made sense to me". This was the extent of the cross examination.
The description of this event by X I find believable, a view assisted my general overall view (though with some significant exceptions) of X as a witness. Whether this instance has been made out will turn on the additional considerations discussed below under the headings "Conclusions" and "Matters to be considered".

[31]

Count 8

In X's evidence in chief immediately after her evidence of count 7 she was asked whether there were any other occasions she could remember when she saw K's father's penis and she said yes and gave the following evidence:
A. There was an occasion where we were all sitting in one of his daughter's rooms. We were all sort of sitting in a circle type of manner all playing DS consoles and it was me and one of his daughters and [the accused] was in the room and I think [Len] the youngest brother was in the room. We were all sitting in a circle, we were cross legged but [the accused] had, sort of had one leg outstretched and I was sitting sort of opposite to him and he would tap my leg with his foot, with his outstretched leg to get my attention and as I'd look in his direction he was in a position that he could like have his penis visible out of the bottom of his shorts but in a way that no one else could see it but me.
X continued to describe the shorts the accused was wearing as being football shorts and the same sort of loose style drawstring football shorts. She confirmed that she could see his penis. She said he would tap her leg with his foot and when she looked to him he would grab his penis but did nothing else with it. Initially she said he grabbed "it", his penis, a few times, but then when asked directly in chief whether it was one touch or more, said "I think I remember him touching it once at the same time he was sort of touching - like, tapping my leg…". She said he moved his mouth, and then his head like up and down. This was interpreted by her as meaning for her to look at his penis (and it was not suggested by the Crown to indicate some other act of indecency); see T34. She said when this was happening the two other children did not take their heads off the game they were playing. She could not say whether the accused was wearing underwear or not.
Like with count 7, I found this evidence of X in chief to be plausible. The reservation I have is that the evidence favours an interpretation of the accused only touching his penis once, and not a repeated stroking or touching. Being limited to once allows for a greater possibility that the incident was an innocent one.
In cross examination X agreed that she was mistaken to say that Len was present on this occasion. Further she stated she believed it was Fiona who was in the room whereas in chief she did not name who that other person was. Further again she agreed that in her statement she had said that it was Fiona and Jan in the room. Thus the versions have gone from Fiona and Jan, (per the statement), a daughter and Len, (evidence in chief) to Fiona and one other person of whom she is unsure.
It was then put to X that the accused exposing himself as she described would have been obvious to other people in the room which was agreed was the room shown by photo 11 in exhibit B although the furniture was different. X rejected this suggestion.
X was then asked to describe what the accused did with his penis and she described it as putting his hand up the inside leg of his shorts and then with slight movements his hand was going up and down the shaft of his penis. It was again put that this would be obvious and X said the others would not have noticed because their heads were in the game.
In my view the mixup in who was actually present does not in all the circumstances fatally damage the acceptability of the complainant's evidence on this charge, though it does raise a concern of X possibly presenting an amalgam of different occasions. The photograph of the room shows it to be, in my view, of large enough dimensions for some surreptitious conduct of the type described to occur. More concerning is that the evidence in chief was of one touch of the penis, which became in cross examination up and down movements suggestive of masturbation.

[32]

Count 9

When X was asked how count 8 had ended she said she was not really sure and went on to say that later that night the accused came back into that same room. At T35 X says firstly that "we were all back in that room" then says that it was just herself and Fiona in the one sentence. She described the room as one of the girl's bedroom and as being the first bedroom as you walk in the front door to the left. She said she and Fiona were laying on one of the top bunks when the accused entered the room. X was closest to the wall. Both she and Fiona were facing the same direction and Fiona was playing a game on her DS and X was watching her play. They were both on their stomachs. She could not remember if she stayed the night on this occasion. As with counts 3 and 7 and I would infer count 8 given this event (count 9) allegedly follows on the same evening as count 8, X could not remember how old she was when this happened but said it was in primary school. Unlike counts 3 and 7 she was able to say it was probably in year 3 or 4 in terms of the school year, which in accordance with exhibit A would mean 2007 or 2008.
X then described that as the accused spoke to her and Fiona the lights were off and he stood on the side of the bunk closest to Fiona but put his hand across her and put his hand on her legs, that is X's legs, and pushed his hand up towards the inner side of her thighs. Soon after X gave this evidence starting at T37: Q. What happened then after you say his hands went up to the inner sides of your thigh? A. He pushed his hands on the inside of my pants and pushed my underwear to the side and proceeded to put his fingers in my vagina and rub it and touch it and occasionally he tried to put his finger inside of me just while I was laying there next to his daughter. Q. I didn't quite catch what you said, what did you say about [the accused's]' finger and the inside of your vagina? A. He tried to push one of his fingers inside of my vagina. Q. Are you speaking about on this occasion that you're describing when you're lying on the top bunk bed? A. Yes. Q. Did he succeed in getting a finger into-- A. No, no. I sort of tried to tense my legs and move them a little bit.
X said while this was occurring Fiona continued to play her game. X said it was "sort of the first time that he touched me while I was awake". X said Fiona shut the DS lid and the accused then moved his hand away and there was no further physical interaction. X said that his hand was under her underwear which he pushed aside.
Again I find this description credible on first consideration. As with all the counts I reserve my final determination to having considered the issues and the "Conclusions" and "Matters to be considered" set out below and also of course in light of the cross examination to be considered next. Immediately however there is a difficulty in this evidence in chief because this evidence just recounted plainly at best evidences an attempt at digital intercourse for the complainant expressly rejects the suggestion of the finger of the accused entering her vagina.
The Crown submits that this is impacted by some later evidence of the complainant in chief. That evidence came at the conclusion of her evidence concerning count 6. In describing what she felt on the occasion of the alleged count 6, X was asked when she had felt that before and she answered at T45 "on another on the other occasion where he'd he'd put his finger in my vagina before". This was said to be a reference to count 9. I do not consider that to be quite so clear and certainly it was not evidence given in express reference to count 9.
In that same answer (T45.41) X said in respect of count 6 "this, this time it'd sort of been the first time that I'd woken to it". This is a markedly similar observation to the observation of X set out at [131] above in respect of count 9. So too is the description of what the complainant was doing which in both cases sees X conclude that it was an attempt. This raised in my mind the prospect of this evidence being a mixture of two events or perhaps two recollections of the same event.
Lastly in respect of count 9 in chief at T52.50 X was asked if there was ever a time when the accused's finger did go inside her vagina and she said yes. When asked to describe that she said "that night on the top bunk when I was laying next to Fiona". She gave this evidence: "I was laying on my stomach and when he was fiddling around with my underwear and got into-push them to the side, I recall what felt like a bit of pain and uncomfortable, like a finger went into my vagina". When asked if that was an occasion she had already told the court about she said "I think it's the same like I've already said it".
In what was then a very telling piece of evidence X then gave this evidence at T53.16: Q. Apart from that, is there any other time in the whole of the time you knew [the accused] when he put his finger or fingers in your vagina? A. Not that I can recall.
This was telling because apart from counts 6 and 9 the indictment alleged 3 other occasions of digital vaginal intercourse and the case is being presented as one of where there was many unlawful sexual acts beyond those on the indictment, yet here the complainant confirms that, at least so far as the case extends to intercourse, there are two occasions only, which in my view of the evidence are at best shown to be attempts to do so.
In cross examination firstly at T111 there was little challenge to this evidence which given the state of the evidence as to whether penetration occurred is perhaps not surprising. Then at T137 it was suggested that this incident may have occurred allegedly in 2007 to which X responded by saying she did not believe so. She agreed with the nomination she had made in her statement of late 2008 or early 2009.

[33]

Count 6

X recounted count 6 as follows:
A. Yes, there was an occasion where I was sleeping on a bed with [the accused's] daughter, [K]. I was sleeping on the wall side, closest to the wall, and that was pushed against. I was, sort of, awoken in the middle of the night to his hands inside of my pants. He was leant over his daughter, who was next to me, and I, sort of, woke to his hands in my pants doing the same, sort of, activity as I've stated. Pushed my underwear to the side and attempting to put his fingers in my vagina, and just rubbing the vagina.
X thought this occurred in the bottom bunk of a bunkbed in the middle of the night. She stated she remembered kicking her leg out at the accused on this night. She said she could feel the accused touching her vagina under her underwear and that she could feel towards the entrance of the vagina itself "like a pushing / pain that just didn't feel right".
X was then asked "Did [the accused's] fingers go in your vagina on this occasion or not?". The question was objected to as leading, but was allowed by me, though on reflection I consider wrongly so. Ultimately the answer given by X at T47 was "I would call it an attempt", and when asked what she meant by that "Like I could feel him trying to do it but I don't think it was successful because I tried to kick out".
This evidence is another example of the frankness of X, and shows her to be an honest witness. A difficulty in the Crown case, already noted above, is again demonstrated by what then followed, which was this: Q. You went to sleep with [K] in her bed? A. Yep. Q. Do you remember what you had been doing on that evening before you went to bed? A. No not sure. Q. Do you remember if you'd had dinner with the [accused's] family that night? A. Not sure. Q. Do you remember what year you were in at school? A. No, primary school but not sure on the year. Q. Do you remember how old you were when that occasion occurred? A. Maybe ten. Yeah. Q. If I asked you what calendar year that event occurred in would you be able to answer that? A. No.
X then gave evidence of the accused leaving the room after she kicked out, then returning and again putting his hands in her pants, but she rolled over and "sort of moved" to show she was awake, and nothing occurred after that and he left the room. She gave evidence of peeking at times through this occasion and seeing the accused.
In cross examination X was challenged on the differences in her statement to her oral evidence as to the length of time the accused moved away after the kick and then touched X again, (10 seconds per statement, compared to 10 minutes per evidence in chief), and as to whether the accused left the room or simply moved away without leaving the room.
Neither of these challenges in my assessment damages X's evidence in chief on this count. I consider the responses made to these challenges again show X in a good light. She freely concedes the discrepancy, and her explanation as to the accused stepping out of her sight and of the difficulty in assessing time in such circumstances I find entirely logical.
Thus the determination of whether this count is made out will depend in part on the quality of the evidence in chief, which I consider below with other matters. I note that a no case submission was made in respect of this charge, and I address that aspect in my conclusions below.

[34]

Count 5

At T53 X gave evidence of an occasion with a fair few people staying over at 1 Canada Street and there were mattresses on the lounge floor so everybody could sleep on them. X states that she woke up with the accused having his hands down her pants. She said she was sharing a mattress. X did not remember what time of year this occurred, but assumed it was a hotter month as she was wearing shorts (though she seems to have worn shorts in all instances alleged of touching). She said it was not cold as everyone was huddled together. X thought the occasion was a birthday party, but could not remember whose birthday, did not know what school year she was in, did not know what calendar year it was, but said she believed she was about 11 (so "about" August 2009 to August 2010). Her recollection was of about a dozen people in the lounge room and that they had been watching television, she fell asleep and woke to the accused rubbing her vagina inside her underwear. She said she again squinted and could see the accused. She said the accused rubbed her vagina for about a minute, and she moved positions and he took his hand away. Nothing was said.
In cross examination X agreed this event could have happened in 2007, 2008 or 2009; T116. And this was shortly before she spoke to Pam.
She could not name the children in the lounge.
In cross examination she comprehensively confirmed her evidence in chief of the accused's hands being inside her pants, and that he was touching her vagina, "skin to skin". She was then taken to her statement which stated that on this occasion the accused rubbed his hand up her thigh and rubbed his hand on her vagina over the outside of her pyjama shorts for a few minutes and then he walked away. X's response was to say she may have mixed it up with another occasion. I find this very unconvincing. It is a marked difference in the account, unlike for example with the variation in count 6 mentioned above.
X then said that "I think I've put two occasions together, and they're not making sense" and "Yeah I think I'm just confused with two separate occasions…" and "so maybe I'm a bit confused". She insisted she could visualise what she was saying.
Again, the frankness of X is commendable, yet with all respect to her, this evidence raises concerns as to reliability. The difference in the accounts, and the frank concession made, of in effect creating some event which never occurred based on two other events which may have, the exact particulars of which are unknown, means in my view that this evidence is inherently unreliable.

[37]

To K (though not remembered by K)

K gave evidence as to the frequency of X staying over at different periods, which is referred to below. She also gave evidence of a time before she changed schools in 2008, so I infer 2007, when still at St Mary's, of waking up in the lounge room where she and X were sleeping in sleeping bags, and she saw the accused, her father, crouching over X. It is not suggested by anyone that this is the occasion of count 5. K's evidence was that she "had the impression" the accused was checking or adjusting them because of the fire. K said this was not the accused's practice to check on her; yet even with that, her evidence was that was her impression. K said this was the last time X stayed over whilst she was at St Mary's. Given there is a fire on, this seems likely to be well before the end of the year, and as it is the last time that year, it suggests a distinctly lower frequency of visit than has been suggested. It appears likely that the sleepovers continued to some extent because K considered the last sleepover would have been after she switched schools, though she was unsure of when, offering both her being in year 5 and in high school as possibilities.
Interestingly she said high school "after my father had left I think". K started high school in 2012. Yet in the following evidence on this point, K's evidence assists the accused on the availability issue. That evidence was as follows: Q. What do you mean by that? Do you know why your father left the house? A. There was a time when he had left the house because he was in rehab I believe it was, and then when he had finished there I think he may, it had been the time he moved into a relative's house, and then from there he moved out west. Q. What year were you in at school when he moved out west? A. I believe it was Year 6 transferring to Year 7. Q. Before he moved out west-- A. Yes. Q. --how often would he sleep the night at Alberta Street? A. How often-- Q. Yes? A. --after he was in rehab, is that what you're referring to? Q. Well let's take that period. From the time he finished rehab till the time he moved out west? A. I don't recall him staying very often, or at all really. Q. What about before he went to rehab? Was he still living at Alberta Street then? A. Yes. Q. Does that mean he was there every night? CARTY: Well I object. I object. That's leading. HIS HONOUR: It is leading. I reject that question. CROWN PROSECUTOR Q. You said your father was living at Alberta Street before he went to rehab? A. Basically yeah. Q. How many nights a week on average would he be sleeping at Alberta Street before he went to rehab? A. Often. I'm not, I can't give you a number. I'm not sure. He was back and forth, yeah. Q. Where was he back and forth to between-- A. From my-- Q. --before he went to rehab? A. --relatives. Q. Which relatives do you remember? A. Jessie and Crystal. Q. Jessie and Crystal? A. Yes. (bold added)
In addition to the evidence in chief, in cross examination she said the accused lived with his sister Marianne for a while, though could not say a year; that her father used to stay at New Town with Joel and his partner Cindy, though again she could not give a year. K's recollection was that after rehab the accused was at Canada Street less often; see above. Her impression albeit at a fairly imprecise time, but seemingly about the time of rehab, was that her parents relationship was an on again / off again one.
As to K's complaint evidence, this comes second hand, in that on her evidence it is not directly from X, but via their mutual friend Pam. This conversation according to K, was after she had switched schools and after her relationship with X had "kind of lost connection".
K appeared to be inherently shy and was hesitant in giving her evidence. So far as it goes, her evidence in chief does not reveal what it is that Pam told her, so it does not reveal what, if anything relevant to this case, was said to Pam by X. Further, it does not suggest that what was said, whatever it was, was the cause of the decline in frequency of sleepovers. As noted above, that frequency was something less than the each weekend approach of the Crown. Indeed in cross examination K confirmed that whilst X slept at her place more than K slept at X's, but added X stayed over just as often, but with her younger sisters, not with her. Then later in her cross examination she referred to "the last time that I recall X staying at my house, which I had thought we had fallen out because of changing schools" which I consider contradictory to her evidence concerning her sisters. Shortly after she said X did stay at her house after that with her sisters "at times", which suggests a lesser frequency than had previously been the case.
In cross examination her evidence changed so that her conversation with Pam was whilst she was still at St Mary's. She confirmed she did not speak to X about what Pam had told her, which is the aspect of the matter that angered her. She said she did not tell her sister Fiona to tell X that she, K did not want X to sleep over anymore.
Pam did not give evidence. Although having been expected to do so, she underwent a caesarean section at approximately the time of the trial. No criticism was made of her non-attendance, but the fact remains, as relied on by the accused, that there is no evidence of Pam as to her conversation with K, nor, if there was one, with X.
The result is there is no advance through K in the case by way of complaint evidence for the Crown as the evidence does not disclose what the complaint was, even indirectly, and it appears the upsetting part of it to K was not so much the content, but that X chose to confide in Pam, not K.

[38]

Jack

Jack gave the following evidence:
A. Yep. Basically, I had asked her, "What happened?" she turned around and basically said to me that she'd been abused as a child. She used to stay over at a friend's house and the dad used to, used to sneak into the room and do things. I then asked, "Who was the friend?" in which she said, "[Susan]." At that stage, I wasn't sure who [Susan] was, but it sort of came to me that it was [Susan] and yeah, it just went from there
As it happened he was working with Susan's then current partner and so asked him about her ex-husband in the next two or three days. This led to Susan confronting Jack about why he is asking such questions later that day.
Nothing emerged of significance in the cross examination.
This evidence supports the Crown case in a broad sense in that it shows X making a complaint about the accused. The complaint is the first time X complains about the accused beyond what she may have said to Pam, and possibly to K, though K gave no evidence of any complaint by X. I remind myself of s294, that a delay in a complaint is not of itself a reason to consider it unpersuasive or false, for there may be many reasons for such a delay.
Taking the evidence at its highest, it does not disclose just what it is that the accused is alleged to have done, beyond "sneak into the room and do things". To that extent there is some correlation with the indictment, but only some. Most of the allegations are notable for their openness; count 3 allegedly occurs whilst X is walking across the backyard; count 8 is whilst a group of children are playing on the floor, count 9 is when K is with X on the top bunk. The evidence of Jack does not say what the "things" are that it the accused is alleged to "do".
The most assistance this complaint, which I accept was made, gives the Crown's case, is that it does not appear to have occurred as a result of any influence from anybody. Rather, something has caused distress to X, and when asked about her well-being, she states she was abused. It certainly assists in establishing something has occurred. It does not assist in determining what that was beyond the most general assertions noted above.

[39]

Pam (and X)

As noted above, Pam did not give evidence. The complaint evidence in respect of her therefore comes from X; put more accurately, the evidence of X was that she told Pam certain things whilst still at school at St Mary's, "not long after" X says now that the accused was sexually abusing her. The evidence is at T60 and was that X said to Pam "I think [the accused] is creepy and weird". She then said she thought she asked Pam if she thought the same way about him.
In cross examination at about T95 X said that she had mentioned something to K about her father. She said she had this conversation: A. I think it was a little while after. I had actually said something to [K] at some stage when I was younger, can't quite remember when. I remember asking her about her dad and she laughed her off, so I didn't ask her again. So, I don't know, maybe it was from something I said. Q. Did you tell [K] you thought her dad was weird? A. I didn't say that I thought her dad was weird, I told her that her dad had touched me on my bottom area, and she laughed and sort of ignored what I said. So, it was never really spoken about again. Q. Were you still going to St Mary's together, you and [K] when you say that you told her that her dad had touched you on the bottom area? A. I can't remember. She changed sort of halfway through primary school, so I'm not sure whether she was still in my school.
And then at T98: Q. Do you remember what you said to [K], exact words? A. Yeah, I told her that her dad's touched my bottom before and she-- Q. Was that it? A. --yeah, laughed it off.
Whilst I hold a favourable view of X as a witness, this evidence is a second example of evidence which causes significant concern, (the first example being her explanation of the inconsistency re count 3 noted at [113] above). In this example the evidence of "complaint" to K was not in her evidence in chief, and she agreed there was nothing in her statement to that effect. It is therefore additional evidence offered up in cross examination. Further, the alleged complaint is of the accused touching her bottom. In a broad and general sense this may be consistent with sexual touching about the genital region, but in a more particular sense it is very different, and even more markedly different from the allegations of exposure, masturbation like motions, and attempted or actual digital penetration of the vagina.
This complaint evidence on balance does not assist the Crown. Whilst X may have said to Pam that the accused was creepy, a matter not confirmed by the absent Pam (albeit with good reason), that is a far remove from allegations of sexual abuse. It also shows X saying for the first time that she said something to K, and the evidence of K was that she was not told anything of this nature by X. Further what she is supposed to have said to K is not on all fours with the allegations in the indictment.

[40]

Susan

Susan began a relationship with the accused in 1997 and had 5 children with the accused, in addition to a child she had from an earlier relationship. Relevantly three of those children were K, Fiona, and Jan. She gave evidence of complaint, and also generally. She impressed when in the witness box as not having any particular point of view to advance. A curious aspect of this case, and something does not sit well with this, is that it was Susan who reported the matter to the police on 11 June 2018, and not the then 20 year old X, and further, Susan made the report when she really did not know any detail whatsoever as to what had happened.
As to complaint, Susan's evidence was reasonably short. She heard from her partner that Jack was asking about the accused. That same day she crossed paths with Jack and asked him why he was asking about the accused. There was no evidence of Jack telling anything to Susan about X. Next she said she learnt something about X and the accused. What she learnt came from KG, who is the aunty of a friend of X's. There is no evidence of what KG said (subject to [178] below), nor of what the source of KG's information was. Susan then rings and or texts X and later that day or evening goes to where X now lives. This was the June long weekend of 2018. Susan spoke to X and the following was the evidence: A. She came out. I think she said hello. She opened the passenger door and said hello. I just said to her, "Look, I know, I know what happened." She said, "I thought so," and she sat in the car and we talked for a little while. She didn't go into detail. I asked her if she'd spoken to her mum and dad, she hadn't. I asked if she wanted me to go with her to speak to her mum and dad. I just sat with her for a while because I just felt like I didn't want to just leave her. I don't know if we talked about talking to the police. I think she did say she wanted to, but I didn't think it was a good idea because she hadn't even spoken to her mum and dad.
So, we have Susan saying to X she knows what happened, but the fact is she does not know what happened. More importantly there is no express complaint here, beyond an implied complaint of X agreeing something happened, even though it is impossible to determine what that is. The evidence did continue and was slightly enhanced by the following: Q. Can I just stop you there and ask you, what did she - when you say she didn't go into much detail, what, if anything, did she say to you about what you were talking about in the car? A. She just said that [the accused] used to find her. I can't remember the exact words she used but she said it didn't matter where she slept in the house, like, she could sleep in the middle of the girls and he'd still find a way to get to her. Q. Did she say anything about what [the accused] had done to her when he found her?
A. No, she didn't go into detail. (bold added)
The height of this complaint evidence is the bolded line above. Susan spoke to police at Old Town that night.
In cross examination regarding complaint, the following was added as to what KG had told Susan, as follows: A. [KG's] words were somewhere along the line that [the accused] made [the complainant] do things to him which to me would have been of a sexual nature from - that's the way I took it. Q. Was it explained any further as to what sort of things that [the accused] made [the complainant] do to him?
A. No.
This in my view is both a vague and non-specific statement. It is also not information attributable to X, and there is nothing known of the source, if any, of KG's information. This is demonstrated, not that it needs to be, by the fact this is not a case of the accused being alleged to have made the complainant "do things to him"; all the allegations are of the accused doing things to or towards X. I do not consider that the complaint evidence assists beyond showing X indicated in June 2018 to Susan that the accused did something to X, without any supportive content as to what that something was.
Susan gave evidence on a range of other matters, including: 1. She said the palings / pickets were put on the verandah about ten years ago, so about 2010. A series of photos which became exhibit B were tendered through Susan which show various uncontroversial aspects of Canada Street. 2. She said the accused was still living at Canada Street when those pickets were put on. The accused lived at Canada Street between the time of the AVO and the time he went to rehab. She said he lived at Canada Street "pretty much" straight after rehab, and lived there until they broke up in early 2012. At that time he went to stay with her brother in New Town for a few months and then to G where he has been ever since to her knowledge. That said, she also freely stated (albeit with a s128 certificate) that the accused used other addresses, which he was giving to Centrelink, so they could collect payments separately. The addresses given included those that the accused was putting to witnesses as other places the accused lived. 3. Susan said that between rehab (in 2008) and 2012 (her asserted separation) there were times the accused was away from home. This included working in G for a couple of months, and another time being on a "show run" between Wauchope and Grafton for 4 to 8 weeks. She said at the time the accused worked for RG and did garden work for KA and did the floor boards at the home of X, he was living at Canada Street. She said he did not live with his brother at New Town. 4. She could not recall when X began to sleep over at Canada Street. She said X slept over on numerous occasions over a number of years. As to frequency she said "It could be a weekend and then it could go maybe, maybe the next weekend or maybe a couple of weeks later", and there was no real pattern. She thinks it stopped when the girls were in high school. She said they, meaning X, K, Jan and Fiona, all played together all the time. In cross examination she agreed that K also slept over at X's house, but not as often as X slept over at K's. 5. She said both she and the accused would both be at Canada Street the nights X slept over. She shared a room with the accused. She did not notice anything in particular about the accused's sleeping habits. The accused was a smoker and would go outside to smoke regularly early in the morning on the verandah. He wore trackies and shorts and jumpers, including blue Parramatta shorts with the Eels logo. She said these were cotton. She said they were loose fitting and extended to just above his knees, maybe a bit shorter. The accused had a Nokia phone with a snake game on it at a time she estimated K to be in primary school. She never recalled the accused saying it was broken. 6. She bought 3 DS games for the children when K was about 10 and another one later for the then youngest child. 7. She did not remember "exactly" if X slept over between the AVO and the accused going to rehab. For the period from after rehab to 2012 her answer to the same question was "I'd say so". 8. She was shown a series of photos, predominantly of the children socialising together, and with K's age being estimated to be 11 or 12, and another when she was 7 or 8. A number of times Susan was asked if X stayed over that night, and unsurprisingly she did not know. I would note there is no evidence to suggest that there was ever anything noticed by Susan of inappropriate conduct by the accused towards X. 9. The short point of the photos (ex C) here was to show the involvement of the accused with the family of K in the period late 2008 to 2012. Notably there is not one photo of the accused with X. 10. As to banking, she said there was no rule about using the other's bank card and if there was money in someone's account that was the card they would use. Shortly after, somewhat contradictorily, she said she would never use the accused's card if he was away. This may be consistent simply because if he was away the card was away, but it was not made clear.
In cross examination the main points were: 1. When asked if X stayed over as often when K changed schools (so from January 2008) she answered "I can't say as often, she still had sleepovers. Like I said I can't remember exactly when she stayed over at all let alone how it changed over the years". She could not remember how often X stayed over in 2008. 2. There were times when she and the accused parted but were still in a relationship. This evidence was about the 2007 period. During 2007 the accused could have been at other addresses for periods of time. In late 2007 early 2008 he was away at either G or G2. She remembered a time after an argument where he stayed a week at DN's. 3. There is documentary evidence of an AVO in February 2008 prohibiting the accused from living at Canada Street. Susan's recall of this was poor. Her position seemed to be that may have been the case but he still resided there. Then in March 2008 she calls the police as the accused, having been picked up by Susan, did not get out of her car. Then in May 2008 the accused was in Queensland and threatened to come to Canada Street, and Susan rang the police to advice of the threat to breach the AVO. 4. It was this AVO matter where Susan advised police that she had separated from the accused in December 2007 and when that was put to her she said she remembered the accused going home to G for a few months. She agreed she must have told the police that he returned in late January and on occasions had been staying at Canada Street. This was still the position in March 2008. 5. Susan's position was that after the AVO the accused may have come and gone but he was living at Canada Street, though her evidence seemed to be that he would go away for blocks of time, eg the show circuit or to G. 6. When she made her report to the police concerning X she was then told that adult victims need to make the reports to police themselves. In July 2018 the investigation was suspended, presumably due to X not coming forward, something she did in November. 7. Relevantly to the tendency evidence Susan rang her brother, S, in G on the night she reported the matter to police. Then, possibly before November 2018 her brother told her something he had learnt from a man named DP, who is the partner of Chrissy, who is the mother of Y, who is the basis of the tendency evidence. S told Susan about Y's complaint about the accused. Susan denies mentioning this to X. After this, Susan became friends with Chrissy on Facebook (which Chrissy denied), and she believes S told Chrissy and DP about the X complaint before November 2018. She gave evidence of a telephone conversation with Chrissy in 2018 where Chrissy told her that her daughter had made allegations against the accused. The evidence did not go so far as to show Susan told Chrissy about X's complaint, but it does show, according to Susan, that S told Chrissy about it.

[41]

To her father

The father of X gave evidence of a number of topics, and it is easiest to set them all out here. 1. As to complaint, he said he got a phone call from X who he described as distraught and in tears. They soon after met in person and had a conversation, in which X told him that the accused had molested her years ago. There was no more detail given by X. Understandably the father sought to comfort his daughter rather than interrogate. The father was asked if X told him why she had not said anything to him earlier and he said X insinuated to him that she feared he would kill the accused, that is, react aggressively. The father agreed this was well founded. 2. Thus, so far as complaint evidence is concerned, this does not advance the situation. There did emerge in cross examination some confusion as to when this conversation may have occurred, but even allowing for it to have been in 2018 and not 2019, the fact is it tells us nothing more than what the evidence suggests X said to Jack or to Susan. It is not evidence showing a complaint to the same effect as the allegations the subject of the indictment, beyond the most broadly stated allegation of "molest". 3. He said X was staying over at K's from the age of 7 or 8 (that is, 2005 or 2006, which suggests some passing of time before the first allegation is said to have occurred). He said that X would "stop over" "not every weekend but maybe every two or three weeks" and that she did this for maybe 5 or 6 years, (so until about 2010 to 2012). 4. The accused helped him lay floorboards in his house in about 2012. There was no submission to this effect, but I take it that evidence is intended to shore up the case of the Crown of the accused being resident at Canada Street until that time, which post dates the indictment date range. He said it was not long after this that he realised the accused had moved out of Canada Street. It should be borne in mind that he also said he was unaware he was in rehab for 4 months from July 2008. 5. Until he realised the accused was not living at Canada Street (or had been told) he said he would see the accused 4 or 5 days a week, nearly every day. 6. However when asked in cross examination of some more specific matters, the position was not so straightforward. It was put to the father that he did not know whether the accused stayed at 11 C St in 2007, and he said he had no idea. He did not know of the domestic incident that led to the AVO in 2008 between the accused and Susan. He was unaware that the accused had been in Queensland for some time in 2008. And as noted above he did not know the accused had been in rehab.

[42]

To her mother

The mother of X gave similar evidence of complaint to that of the father, and also some evidence as to the frequency and duration of the sleep overs. Her evidence included: 1. The sleepovers occurred from about the time X was 8 and continued till late primary school (year 6 was 2010). Throughout this period she saw the accused regularly, something she says continued after he got out of rehab. She "guestimates" the accused left Canada Street in about 2013 by doing a calculation based on the age of Susan's child to her new partner. 2. Her evidence of complaint was very similar to that of the father, specifically that X simply said to her "[the accused] molested me", and that he used to come into the room at night. When asked if X told her anything else about the molesting, she said "No". 3. In cross examination was this passage of evidence: Q. You said that she said that, "[the accused] molested me"? A. Yes. Q. Did she say when? A. When? Q. When [the accused had molested her? A. I think she said when she was about ten. I might've asked her when, "When did this happen?" Q. Did she say to you anything about him being on a balcony or on the back balcony of his house? A. She did. She said, "He used to stare at me from the back balcony," and she was very creeped out about it. Q. She told you she was creeped out because he'd stare at her from the back balcony, is that right? A. Yep. Q. Did she say anything more about what, if anything, happened when he was on the back balcony? A. No, no. 1. On this evidence, the complaint is talking about the period August 2008 to August 2009, or a little beyond (or possibly earlier in 2008 also, "about" 10 can clearly mean when 9); there is no evidence of what "molest" entails other than the mention of the balcony; and in that regard, nothing is said of count 3, but rather a further statement (like what was said to Pam) that the accused "creeped" out X. 2. She said she had "no clue" when asked if the accused was living at C Street in 2007, nor at 68A High Street, and would not know if he lived at William Street, nor if the accused stayed at Bellwood, in either 2007 or from the end of 2008 till later in 2009. 3. Her impression, based on Susan's next relationship, was of the accused leaving Canada Street in about 2013. It is clear however that this is very impressionistic, and in my view, could very easily be wrong, as her acknowledgements of a lack of knowledge of other locations makes plain. She accepted the accused and Susan were distant, and said they were very good parents, and that they were there for the children. She accepted the accused may have been staying somewhere else four nights per week. 4. As to the X / K friendship she said they were completely cut off by age 12 (2010, but she also suggested this occurred in early high school, so 2011) and that leading up to that it had not been as good as it was. She said they were thick for a good three years, maybe longer. This evidence allows for three years of sleep overs when "thick" starting, not straight away from school, and then becoming less after the three years (or so, that is, I consider, likely more). Based on this, it is consistent with the sleepovers occurring at least in the period 2006-2010.
My conclusion on the complaint evidence is that it adds no detail. It supports the idea that X raised a complaint, but there is no evidence of the detail that allows for some meaningful weight to be put on it for credit purposes. Further, there is nothing contemporaneous; I am not satisfied that X told K that her father touched her bottom given that it was never mentioned before cross examination and K had no memory of it. The only complaint from the period of the alleged offending is of the accused being to X's mind, creepy.

[44]

Y gave evidence. She is now 13 years old having been born on 22 July 2007. As part of her evidence in chief, a recorded interview of Y with the police was played. It has to be said that the interview process was thwarted to a fair degree by the apparent shyness, or reluctance of Y, who was not at all detailed or fulsome. By that interview which took place on 20 November 2018 when Y was 11, Y stated that when she was in G the accused touched her private parts "a few years ago". She described that he would wake her at about 5am, which may take more than one attempt with him going out of the room and returning, and touch her on the private parts, she would try and make him stop, but he would hold her hand and then she would run to Chrissy but she was not awake. She said this happened a few times. She described her private parts as her boobs and what she uses to wee. She would say stop, he would say no, she would go back to bed, and he would try to wake her up again. She said he touched her under her pyjamas, she would put the TV on and he would do it again. She said he would put his hand down there and touch it on the top. This first happened when she was 7, which makes it about July 2014 to 2015. Y did not remember the month, but remembers it was hot. She went to her Pop's house 3 hours later and told her mum about a week later. She did not remember what she told her mother, and I do not place weight on the evidence of what she "would" have told her mother. She said he did the same thing the next day, that he "would" wake her up, and when she "wouldn't" wake up "he'd" go in the lounge and then come back and wake her up. He took the blanket off and shook her shoulder. This happened four days in a row according to Y. The location was said to be the accused's place in K Street, G.
In 2019 a second interview of D was commenced but was not completed.
In cross examination: 1. Some evidence varied, eg when asked where she was living on her 7th birthday she said she was staying at the accused's; then when asked where she was living on her 7th birthday, she said N. When she told her mum a week later she was in the accused's house, and she spent a few days in between at her cousin's house. So this is a week in G when she is living in N, not G, where the accused's house is. She agreed it could be summer of 2014/15, or 2015/16, and she did not know her age when it happened. 2. She could not remember what she told her mum, but when put to her she said the accused had touched her in the privates, she agreed with that. 3. She said she was going to G school, yet she lived in N. 4. She denied ever talking to Chrissy about it again, despite being taken to the interview by her mother. She denied her mother told her what it was about, and when asked how she knew said it just came in her head. I find it highly unlikely Chrissy said nothing about it, and doubt this evidence. 5. Y said that Chrissy told her the accused was a bad man who had touched a girl in Smalltown, and this was before the interview. 6. When asked why she would tell the police that she ran to her mother but mum was asleep she said "I don't know". 7. She gave a different version of events. On the second version, she said after the accused woke her or tried to wake her and then left the room, she got out of bed and went to see where he was, and then went and had a shower and got ready for school and then he touched her, by which time she was in her school uniform and in the lounge. This is markedly different to being in bed in her pyjamas in her bedroom. She then said "Touched me twice in the first one then one when I was getting up before I got up and when I had a shower". This version became even less likely, though by no means impossible, when Y described the accused putting his hand down her shorts whilst she was in the sitting position. She also said this extended or second version happened on each of the four days. Y on one occasion could not explain what it was she was telling police about her mother "waiting up".
With great respect to the young witness, I simply find this version of events lacks credibility for a number of reasons. There is the disturbing use of "would" in her evidence. The evidence in the recorded interview, the transcript of which was an MFI, reads as if it is evolving as she relays the story; first once, then twice, then four times, then all in consecutive mornings. The emphasis by the child on "boobs". I totally accept that it may be indecent to touch an undeveloped female on the breast area; but my concern is in all the circumstances of this complaint it has an air of having been suggested to her. The evidence simply struck me as a little odd. Y had a readiness to agree with the questioner, which caused me to have concerns as to her simply wanting the interview over with, to the cost perhaps of accuracy.
By the end of cross examination Y became even more monosyllabic in her answers, which did not appear to be fully considered, and indeed she agreed with the cross examiner that she had enough of his questions and did not want to answer them.
But overwhelmingly the different story in cross examination as outlined above is enough to dispose with this aspect of the case. I am not satisfied on this evidence to the necessary general standard that this event occurred. The manner of giving evidence, the sense of the story evolving as it was being spoken followed by the markedly different version in cross examination unavoidably lead to this conclusion.

[45]

Chrissy

She gave evidence that her relationship with the accused began in 2012 in G. She was vague and said she could not remember things. Much of the evidence in chief was trying to establish where she lived and when, and her movements between G and N, and through no fault of the Crown the evidence was very unclear. The one thing she was clear to say was that she finally split from the accused when she confronted him about touching Y. It turns out to be likely that after this alleged confrontation she did in fact socialise with the accused.
The complaint by Y to Chrissy was made allegedly after Chrissy got off the phone from talking to the accused and Y allegedly said "I hope he doesn't come back" and when Chrissy asked why, Y said "Because every time he wakes me up he touches me on the private". This was a call before the accused "came over", which suggests it was not at the accused's house, yet Y's evidence was she told her mother at the accused's house. This was made clear when Chrissy said this disclosure occurred at W Street N.
Later that day was the alleged admission relied on by the Crown, when the accused attends Chrissy's house at N and the following occurred: A. Yep, I said, "Why did you touch my daughter?" he shrugged his shoulders, he said he didn't know and I said, "What do you mean you don't know?" he said, "I don't know," and I said, "What the" - excuse my language, your Honour, "What the fuck do you mean you don't know? What 43 year old man doesn't know what he's doing?" and he was like, "I don't know."
She could not remember how long before this event it had been that she and D had stayed at the accused's house. She said she never saw the accused again.
Chrissy complained to police in October 2014 concerning some stray dogs, and in July 2015 about the accused. The accused had turned up to her place and would not leave, and they both consumed bourbon and coke. The children were there. After an argument she rang police who arrived at 1.30am, by which time the accused had left. Chrissy told the police she wanted him out of her life. When asked in Court if she had split with the accused by this time she said "No I don't think so. I just felt I just didn't want a relationship with him".
She said this night, 11 July 2015 she was pretty sure was after Y had complained to her. She told the police she had separated from the accused 10 months ago, which she said meant not living together but continued to see each other. Two months later she told police they'd been separated for 12 months, and that she was sick of him contacting her and wanted it to stop. She then conceded the relationship had clearly ended by then based on what she told police in July and September 2015.
When asked why not tell the police about Y's complaint, she said it was because Y was going through "another situation" and she did not want to put her through that. The proposition being put by the accused was that if there had been this complaint by Y, and if there had been this admission, then why is she drinking bourbon with him, and later, socialising at his place, an event marked by a fist fight between herself and another female guest the cause of which was the other female had supposedly slept with the accused. Chrissy then made a complaint to police that it was the accused who had assaulted her and caused her fat lip, rather than the other female. In court she would not accept that her complaint to the police was false, despite agreeing in court that she had a "punch on" with the other female. A further point made was that this would be an opportunity to tell police about Y's disclosure. Yet she did not, she says because of concerns for Y.
At this point the credibility of Chrissy was minimal, and it was to be further diminished. Firstly she denied talking to Susan on the phone at all, and also denied knowing anything about the allegations of X about the accused. The evidence does not show Susan speaking to her about those allegations, but I accept Susan's evidence that she spoke to Chrissy, and also that her partner DP knew of the allegations. I do not accept her denials that she knew nothing about them prior to Y's complaint, as I consider it likely DP told her, and I do not accept her denials of not talking to Susan "I was never speaking to [Susan]"; see T376. The manner of her giving this evidence was also unconvincing to the point of unimpressive. The facts are as I find them to be that Chrissy made a complaint to police of the accused assaulting her, apparently false given her fight with another person; she then gains this information about X's complaint, and then there is a complaint by Y. Without going so far as to actually find that the complaint was false, these facts compel great caution in dealing with Chrissy's evidence.
Secondly it was then put to Chrissy that she told Y that the accused was a bad man that touched a girl in Smalltown, which is what Y had said earlier, and Chrissy denied it. I prefer Y's evidence in this regard, and accept it.
Thirdly she denied making a complaint about her ex partner (before the accused). This was post separation. She at first agreed he had not been sexually violent to her after separation. She and the ex partner were arguing about money. She was not getting what she wanted. An argument broke out in the front of a police station. The police said she should come in to make a complaint. She said of her ex partner "he sexually assaulted me the other night and put a deodorant can up my cunt and made me suck his cock". This was the content of a police record. She did not follow up the complaint. My view is this is false. That is because she had just agreed that there was no sexual violence post separation, which I infer occurred more than "the other night". Then in the witness box she said she could not remember such an event as the assault described, something I consider not likely to be forgotten, so I conclude she is being less than frank with the court. The Crown objected to his evidence on relevance, but after submissions it was agreed to be admissible as going to credit, but not as to being a tendency to make false complaints. Accordingly I treat it that way. This gives me great hesitation, in all the circumstances of this case, to accept the assertions of Chrissy as to a. the complaint by Y and b. the alleged admission by the accused, to the point that I do not accept they occurred.
The Crown sought to salvage the tendency evidence by seizing on a document which showed Y and Chrissy in G for about a month in 2016, and arguing based on this that was when the touching occurred. This was the document (a school enrolment record, exhibit N) which was obtained after Chrissy had left the witness box, so there was no evidence from Chrissy about it, nor any cross examination on it. Given the evidence of Chrissy that amounts to the complaint being made in 2015, I do not accept this argument.
These matters, together with the inadequate evidence of Y, lead me to conclude that the tendency event is not made out.

[47]

Conclusions

In reaching my conclusions as to each of the counts on the indictment of which there was evidence, it is necessary that I consider the whole of the evidence. This means that in addition to the evidence of X as detailed and discussed above, I also need to take into account the complaint evidence, the tendency evidence, and the evidence going to the "availability argument" raised by the accused, and the various issues raised by the evidence beyond these matters, such as concoction and contamination. This I have done. Whilst I have given some indications along the way as to my views on the separate aspects of the evidence, it is only having considered all of the evidence that I reach the conclusions I now set out.
In reaching my conclusions, and in order to understand my reasoning, it is important to appreciate two aspects of the case. One of them is an aspect that needs to be frequently considered, the other is specific to a charge under s66EA.
The first aspect I refer to is that I found X an honest witness subject to three particular reservations I had about her evidence as detailed above, being her explanation for the differences in her account of count 3 as to whether the accused's hand was up or down his shorts; see [113] above; the difference in the account of count 5 from being a touching over her underpants, to being skin on skin; see [150] above, and the evidence for the first time in her cross examination of making a complaint to K; see [172] above. Yet as reminded by the High Court in Pell, that a fact finder may believe a complainant does not mean that other evidence may not raise reasonable doubt. The second aspect is that it is necessary in this case to consider each of the counts / instances on three levels. Firstly there is the level of s66EA. That is, to treat the 10 alternate counts not as charges, but as instances of alleged unlawful sexual acts. This means they can be proven as instances, where, on exactly the same findings, they would not be found to have been made out as alternate charges. This is because they are not hindered by the date range of the individual instance, so long as on the facts as found, the events pleaded occurred within the date range of the s66EA charge itself. In this case, that may have been the position in respect of counts 3 and 5 for example. Secondly if the s66EA charge is not made out, then the alternative counts need to be considered as alternatives. This may be the case even if two or more instances are made out, for there still remains the issue of establishing a relationship that has been maintained. Thirdly, if the alternative counts as pleaded are not made out, then it remains to consider the statutory alternatives to those charges, and it should be noted, if the statutory alternative is made out, it would classify as one of the necessary two or more unlawful sexual acts, and in my view properly interpreting the legislation, even if outside the date range of the alternate charge, but within the date range of the s66EA charge.

[50]

Frequency of X sleeping over at 1 Canada Street

I find that the frequency of X sleeping over at 1 Canada Street is not as great as contended for by the Crown: 1. It appears that X stayed over less after 2007, specifically from the time K started year 3 at a new school, which was from the school year starting in 2008. This is the earliest beginning of the indictment range for all of the alternative counts of which there was evidence, and thus for all of the instances relied on for count 1, though the instance if established, but outside the date range, may support count 1. K's evidence was that X did not stay over "very often at all" after K changed schools. 2. K also said the last time she stayed before the change of schools was in the colder months, which suggests some months passed between sleep overs. 3. Further, it was the evidence of K that often, though likely not as often, she would overnight at X's. The Crown opening made no allowance for this. This reduces the frequency of X being at Canada Street. There was no suggestion of the sleeping over being some kind of week about arrangement. 4. It was the evidence of X's father that the sleep overs occurred "not every weekend but maybe every two or three weeks", and the evidence of X's mother was similar, and so too was that of Susan. 5. It was on the changing of school by K in 2008 that the relationship between X and K diminished. I accept the evidence that there was a relationship between X and Jan and X and Fiona, and that this led to sleep overs also. The evidence does not allow for a precise finding, and I find that the sleep overs by X at Canada Street were not weekly, and were more likely at best fortnightly, and sometimes three weekly, and with the possibility of even longer breaks than that between sleep overs. Whilst it remains of course possible for the offending alleged by counts 2-11 to have occurred, this finding is at odds with the overall facts being alleged within which count 1 is said to have occurred.

[51]

How often was the accused at 1 Canada Street? The availability argument

I find that whilst the accused may have been at Canada Street more frequently than his case allows, I find that he was not there for much of the second half of 2008, specifically from 22 July 2008 to say 1 December 2008. Further the evidence showed the accused was in Queensland in May 2008. There is also the evidence of K at [156] above that after rehab the accused was "I don't recall him staying very often, or at all really". What needs to be remembered is that even if the overnights continued beyond January 2008, and I accept that they did, but not as frequently, the evidence is of both X and the accused being at Canada Street less often than contended for by the Crown's opening. The factual basis for this case has been shown to be far different than the Crown contends.
Against this needs to be balanced the evidence of Susan, who as an adult at the time of the events in question, may be likely to have a more accurate recall than K. Her evidence in short was that the accused lived at Canada Street throughout the indictment period, leaving when she and he separated (on her account) in 2012. She also said the accused was there (at Canada Street) 9 times out of 10 when X was there. Yet Susan's evidence also allows for periods of absence by the accused from the Canada Street house in the period from 2008 to 2012, and the police records show her asserting she and the accused separated in 2007. There is no dispute as to the months at rehab, and there were periods when he was a way for weeks. I do not accept the 9 times out of 10 estimate as it is inconsistent with Susan's other evidence.
In addition to the evidence of Susan and X's parents, the Crown sought to counter the accused's availability argument by calling a number of further witnesses, specifically on this issue. They were RR, RG, KK and KA. RR was a step aunt of the accused, and had lived in the western NSW town of G, as well as in New Town, Smallville and Old Town. In other words, she had lived in the same areas as the accused and was part of his extended family. She had also lived in the same apartment complex at New Town as the accused's brother for a time. This was where the accused spent an unclear amount of time after rehab. She saw the accused stay there sometimes, and also saw Susan and the kids there. She did not know where the accused was living in the period 2007 to 2010
KA gave evidence, which I accept, the effect of which was that in 2011 the accused worked in her garden and that it seemed to her that he was living at 1 Canada Street, which was the house next to hers. She had moved to that address in 2005. She based this on seeing him regularly, and she also said she occasionally noticed the accused was absent for a few weeks at a time. In cross examination she agreed she did not know that the accused lived next door, that it was not something anyone told her, it was her impression. She did not know if he spent some nights a week elsewhere. She was unaware of his time at rehab but was aware there were times he was not around. She gave evidence of an occasion of hearing Susan crying and people coming to support her, after which she did not see the accused at the house, so she concluded that was the time of their separation and which she said was after the gardening, so after 2011. She agreed she did not know the accused and his family well, and all she could say was that she saw him a lot up to 2011 and could not actually say if he was living there or not.
KK was a school teacher at the local school where the accused's children went. She saw the accused working on a building job there in about 2009, 2010. She never met the accused. Through KK the school registration of K (exhibit 2) as starting in year 3 in 2008 was established. This meant that the change of schools occurred at that time.
RG was a site manager of a construction company which did work on schools. The accused worked on these jobs as a labourer for about 9-10 months in the period 2009-2010. His evidence was that the accused worked mainly on a language centre and not the gym, which had been completed earlier. He said on two occasions he dropped the accused off at the Canada Street house. He saw Susan bring the kids lunch on occasion and also for the accused once, which in cross examination became "a couple of occasions"; he was not 100% but pretty certain. He said it was possible he gave the accused a lift to New Town but never to the address of the accused's brother. He never picked him up from "home"; if he gave the accused a lift to work they may have met at Old Town.
The net effect of these various witnesses is opaqueness. None of them have a direct basis for being able to say where the accused lived. The bank records relied on by the Crown show that in the period in question virtually all the cash withdrawals were from ATMs in Smalltown. That too is to at least some degree inconclusive. The alternate places the accused may have lived included places in Smalltown. To add another layer of grey, other documents from Centrelink and the RMS showed the accused did change his address, albeit according to Susan, falsely with respect to Centrelink. Further still, in the AVO documents, completed on the information given by Susan, it is recorded that the accused and Susan separated in February 2007, and also includes an address other than Canada Street (see exhibit 3 re incident of March 2008) and includes an order that he not reside at Canada Street from February 2008.
The conclusion I come to is that certainly by late 2007 all was not well in the relationship of Susan and the accused, based on Susan's own history of the separation. I do not find that was a final separation. The comings and goings of the accused from 2008 to at least 2011 when he was working next door on the garden, persuade me that at the least he was a reasonably regular attendee of Canada Street, though query in what capacity, that is, as a frequent visitor or as a resident who was often absent. Numerous witnesses described Susan and the accused as good parents or otherwise spoke well of them (X's parents, KK, KA) and I have no reason not to think that in the main the accused and Susan did their best for the children in circumstances that at least at some times were strained. It seems likely to me there were occasions when the accused was out west for a week or so, or stayed with his brother (RR's evidence allows for this at New Town), or at some other of the various locations mentioned.
I therefore find on this "availability argument" that whilst throughout the period of the indictment the accused spent significant time at the Canada Street address, he was also regularly absent from that address. Such absences on the evidence could stretch for weeks, eg when he was in Queensland and when he was off working at times. In particular, and it is not in dispute, he was not at Canada Street for the period 22 July to December 2008. In light of the cross examination, and the AVO between the parties, I consider that the absences were more frequent than Susan's evidence would suggest, though I do accept that the AVO was probably honoured in the breach.
This finding and the finding as to the frequency of the sleep overs means I have found there is quite a different factual background to this case than was contended for by the Crown. The Crown has not established the circumstances contended for as to count 1, though that in and of itself is not fatal to the Crown case. It is however a relevant factor to take into account, and I do, in my assessment of the evidence overall.

[58]

Generally

As already stated, I found X to be a witness who presented well in the witness box, and who, to a large extent, sought to give frank and honest evidence, and to a large extent did so. That said, the occasions where her evidence was not impressive, as discussed at [210] above, were significant.
As is indicated from the range of matters just considered in the foregoing conclusions, there are however a number of matters which raise concerns as to X's reliability. For the reasons discussed above, the following matters raise concerns as to X's reliability: 1. I find that X did not sleep over at K's home as often as once per week, which was one possibility allowed for by X. Rather, the frequency, which I find cannot be stated with great precision, could be as frequent as fortnightly at some times, and at others, more than a month apart (in accordance with K's evidence of the last sleepover for 2007 being in a colder month). 2. The manner of preparing her statement with the police is a real concern. I find that it involved reconstruction to a degree that impugns the reliability of the evidence. As will be noted below, in respect of one count X expressly conceded that she may have been confused and was mixing two different events together as one. The result on the facts of this case is that must give rise as to uncertainty as to what it is that X was giving evidence about. The concern is to what extent this permeates the whole of her evidence. 3. The fact that X was unable to give evidence as to 4 of the 10 "instances" on which the Crown relies. The concerns this raises as to her reliability is heightened by the fact that 3 of the 4 matters of which there was no evidence were allegations of sexual intercourse, the most serious of the allegations made. 4. The fact that X's evidence allowed for the relationship being alleged between her and the accused, which the Crown must establish beyond reasonable doubt, to be far different to that as contended for by the Crown. Rather than weekly or almost weekly visits overnight by X to the home of the accused where he was present 9 times out of 10 (Susan's evidence), it turns out that her visits were not so regular, on my findings, and that, in my view, in light of the evidence as to the accused's various addresses, the acknowledged periods in which he was not at Canada Street, the existence of AVO's and other matters discussed above, the accused was most likely not present for far more of X's sleep overs that one out of 10. 5. Further in this regard, I have real doubts as to this relationship as alleged being maintained for the period asserted by count 1, being 1 January 2007 to 31 December 2010. As discussed above, the allegations on one view of the evidence can be contained to a period of late 2008 to August 2009. This, along with the previous point, is a state of affairs far different that what was being alleged. 6. Despite the favourable view I have of X as a witness, there were three notable parts of her evidence which showed her in a less favourable light. I noted these at [210] above.
In addition to those matters going directly to the evidence of X, my discussion of the "matters to be considered" set out above, show they are matters which do not assist the Crown. This is so for both the complaint and the tendency evidence (which extends to concerns as to concoction), and that the evidence does not support the Crown case of the offending escalating over time. I note also that there were no witnesses at all to any inappropriate behaviour, at any time, by the accused towards or involving X.
With the above considerations and determinations in mind, I now turn to my conclusions on the evidence relied on as to the actual alleged offending, which I have set out above commencing at [98].

[61]

Count 6 (allegedly on bottom bunk with K)

The accused made a no case submission in relation to count 6. This submission was founded on X's own evidence of what occurred being an attempt to penetrate her vagina digitally; see [141] above, where X said "I would call it an attempt". X also referred to the conduct of the accused as "trying" to do it, that is, trying to penetrate her.
The Crown submitted that taking the Crown case at its highest, this is the evidence of a 10 year old girl "struggling to describe whether there is access to her vagina or not wont necessarily know what attempt means and if there is penetration to the slightest degree that constitutes intercourse".
There is express evidence of X which amounts to saying there was no penetration, but an attempt to do so. It follows in my view that the no case submission is well made. I would note however that even if that was wrong, and, accepting the Crown argument, that the evidence was open to the interpretation contended for by the Crown, the ultimate result would be the same. This is for two reasons. One, that evidence does not satisfy me beyond reasonable doubt that the "attempt" was successful. Secondly, the evidence reads as if X herself is unsure as to whether there was penetration, and as was commented in submissions, if X is not sure, how can the finder of fact be sure to the necessary standard?
Unlike counts 2, 4, 10 and 11, there was some evidence as to this count, plainly supporting an attempt. Whilst the no case submission succeeds on the count charged in the indictment, my view is that it would be appropriate to leave the statutory alternative count under s 344A to be determined by the finder of fact. I deal with all of the statutory alternatives below.
This count gives an interesting example of the working of s66EA. As discussed above at [4] et seq above, my view is that to make good the unlawful sexual act required by s66EA, the evidence needs to establish the act the subject of the particulars provided, whether those particulars be provided by way of alternative charges, or particulars provided as such in the indictment or otherwise. Here, the charge of sexual intercourse fails, as does in my view the statutory alternative of attempting that offence. Query whether, had I been satisfied that albeit not an attempt at sexual intercourse, there was sexual touching, or an indecent assault, would that be available to constitute one of the necessary unlawful sexual acts? For the reasons discussed above, and based on [115] of ARS, I consider the answer to that question to be no. To be otherwise would mean an accused could end up being first aware of what it is that he is charged with upon receiving the verdict. I note the Crown submitted to the contrary in its submissions that were invited on this point. In doing so the Crown relied on the terms of count 1, which in its very terms particularised the unlawful sexual acts alleged as being, in summary, the accused touching his own penis, the accused touching X's vagina, and digital vaginal intercourse. Arguably then, this evidence as to count 6 makes out an occasion of touching X's vagina. The overall unreliability of X's evidence has the result that I am simply not satisfied that such an occasion of an unlawful sexual act occurred. If necessary, I would further find that even if that was found, it could not make out a necessary unlawful sexual act for the purposes of count 1. This is because, whilst the act is described in count 1, it is not particularised at all, and as discussed above, a charge under s66EA is not free from any particularisation, as recognised by ARS. In my view, the Crown's submission must be wrong, for it has the result stated above, that an accused person would not even know the nature and character of the unlawful sexual act alleged against him or her until the verdict. The reference to "particulars" in s66EA(4)(a) is a reference to the particulars of an unlawful sexual act that is being alleged. So whilst particulars are not necessary, it remains necessary to specify just what it is the accused is alleged to have done, and beyond a bare statement of the type seen in count 1.

[62]

Count 3 (allegedly exposes penis from verandah)

I found the account given by X to be credible. Yet at the same time, in a case where this style of conduct was said to have occurred many times, this was the only occasion involving the backyard and verandah which emerged from the evidence with any detail, or in any meaningful way. The other pleaded count, count 2, was simply not evidenced at all.
The issue is really in circumstances where I consider X overall to be honest (but noting my concerns expressed at [210] above in connection with some particular pieces of evidence), is X reliable?
I have found in my assessment of counts 5, 6 and 9, that the version of events given by X is unreliable. The Markuleski direction needs to be considered here. Further, on this count I find that the evidence falls outside the date range, and considerably so. In her evidence she allowed that this event may have occurred when she was 8, so no later than 6 August 2007, yet the beginning of the time frame in the indictment is 1 January 2008. On another version of her evidence the best she could say was it was when she was at primary school, a period of more than six years, being 1 September 2004 to December 2010. For these reasons of the dates I consider that this count as an alternative count cannot be made out.
The count could however arguably still be made out for the purposes of count 1. A further issue arises in terms of the application of s66EA, as to whether the provisions of s66EA as to particulars are without limit. By that I mean, if an event was alleged to have occurred in 2009, but was proven to have occurred in 2008, then clearly it would be caught as an instance of one of the acts required by s66EA. But say instead the evidence showed the event occurred, but in 1989, or 1999, is that event still able to satisfy one of the unlawful sexual acts for s66EA? The answer I consider likely to be dependent on the facts of each particular case and on whether it can be said, within the constraints of s66EA, that the accused has had a fair opportunity, as in the sense of a fair trial, to understand the case being put against him and to meet it. In this case the 6 year span extends roughly to 3 years each side of the date on the indictment. The accused's case is it simply did not happen. My view is that the date issue here does not prevent this count becoming an instance of one of the two necessary unlawful acts required to make out the offence under s66EA.
The ultimate question then is has the Crown satisfied me beyond reasonable doubt that the event alleged as count 3 occurred? After considerable consideration the answer is that I am not. The unreliable nature of the evidence of the other counts, in particular counts 5, 6 and 9, and the concerns I have generally as to the other evidence in the case, discussed above, including as to the reconstructed nature of important parts of X's evidence, which the evidence of X clearly expressly allowed for in respect of this count 3, and also the inability of X to be able to state with some degree of proximity when the event occurred, all contribute to this conclusion. Whilst dates need not be proven for s66EA, that does not mean that an inability to be any more precise than X was here cannot add to a fact finder's concerns as to the happening of an event. Nor should the three different possibilities allowed for by X's evidence as to when it was that the accused allegedly touched his penis be forgotten, something I find unpersuasive for the Crown case. As discussed above, there was also the inconsistency as to whether the accused's hand was "down" his shorts or "up" his shorts, and the unconvincing evidence of X seeking to explain this inconsistency.
These matters lead me to have reasonable doubt as to count 3. This doubt extends beyond the particulars of the time at which it occurred, and to the actual happening of the event. Accordingly I do not find that it is an event that satisfies an unlawful sexual act for the purposes of s66EA, and further there will be a verdict of not guilty on this alternative count.

[66]

Count 1

In the absence of an unlawful sexual act being established, it follows that count 1 cannot succeed. I would further note that there was very scant evidence of either a relationship or of any relationship being maintained by the accused with X. Had the alleged "instances" of unlawful sexual acts been made out, and had it been established that this conduct occurred many times, as was the Crown case, then arguably those elements could have been inferred. Yet those acts were not established, and there was no evidence of any interaction between the accused and X of any significance. The evidence did not support the closing submissions of the Crown in this regard, which were to the effect of the house at Canada Street being a drawcard for X, and with the necessary relationship thereafter being maintained. The evidence does not make out the offending, let alone the asserted "habituality" of offending (see T525). Nor, on the evidence in this case, am I prepared to accept the Crown's submission comparing ongoing sexual abuse (which I consider has not been established) to a routine drive through an intersection on the way to work. That analogy may have some traction in other circumstances, but here, with the range of concerns outlined above, it does not. The height of the evidence in this regard is arguably at T89, relied upon by the Crown in submissions, where X gives evidence in the very imprecise terms as to being touched "probably" once a week, over a period "probably the four or five years that I constantly stayed at their house", "generally" during the night when she was asleep, in a bedroom in a bed. The analysis of the evidence shows that it is unlikely to have been once a week, and indeed, without reversing any onus, it seems likely to have been far less frequent than that, nor were X's visits "constant", and the evidenced allegations relied on to support the indictment showed her more often to be awake than asleep. My view is this evidence adds weight to, rather than detracts from, the conclusions I have reached.
Further, given the doubts that exist as to just how often the sleep overs occurred when the accused was in the house (and the evidence of Susan supporting the Crown on this point is acknowledged, but then again the evidence of K detracts from this), I would not find on this evidence that the accused maintained a relationship with X. Further support for this view is if the photographs of exhibit C are relied on as strongly as argued for by the Crown, which in my view tend to mislead, then there are none in which both the accused and X appear together.

R v CEM

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (69 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)