R v DLW

R v DLW - [2020] NSWDC 284 - NSWDC 2020 case summary — Zoe

[3]

General Directions

Sitting alone, it is pertinent to remind myself of the following general matters which, if there was a jury, would have been the subject of direction by me to the jury.
As the accused has pleaded that he is "not guilty" to all counts and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of these charges and to return my verdicts according to the evidence that I have heard.
The Court notes that the evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count.
I have heard and received final submissions from the Crown and Mr Schaudin of Counsel for the accused. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. In no sense are those submissions evidence in the case.
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 must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. This is particularly pertinent, having regard to the nature of the offences with which the accused is charged.
As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the video and audio recordings and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the accused.
I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. 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 now direct myself on the onus of proof. 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. 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. 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 court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the accused must be found "not guilty" of the charges.
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 considering the submissions made to me by each of the Counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty 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 it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against the accused for each count.

[6]

Evidence in Chief

The complainant's evidence in chief was comprised of two records of interview given to Detective Senior Constable Catherine Hayward, on 3 June 2016 and 9 February 2017, respectively. Video recordings of those interviews were played for the Court (with transcripts marked for identification, as aide-memoires).
The complainant also participated in a 'drive around' on 14 July 2016. This was principally intended to enable the complainant to identify the home where he said he was sexually assaulted and also the home that he was staying with his (biological) mother, in the same street. A video and sound recording of that drive around was also played.
This evidence was admissible pursuant to the provisions of Division 3 of Part 6 of the Criminal Procedure Act. I draw no inference adverse to the accused that the complainant's evidence was given in this way (per s 306X of the Criminal Procedure Act).
The complainant's evidence, as it emerged, was as follows.
In 2009 and 2010, the complainant and his brother periodically visited their biological mother, who was at the time living in 58 M Road, Budgewoi (the street name has been redacted).
At some point in 2009, which he thought occurred during the December school holidays, the complainant (having turned 7 years of age in July), his brother and his biological mother visited the premises at 101 M Road, Budgewoi (the street name has been redacted). He recalled that he was in Year 4 at the time the incident occurred. I will refer to his brother as "BAW" and his biological mother as "DJ".
These premises were occupied by "Damien", who the complainant understood was DJ's boyfriend, for only a week. He had not met or seen "Damien" prior to that. The complainant, DJ and BAW walked to the premises.
The complainant understood that he was going to "a party". He later told the police that he thought it was a birthday for the accused, but he did not actually know this: he surmised this because of the age of other attendees at the party. It was not clear from his evidence whether he recalled what day of the week the party occurred. He recalled that the "party" was at night-time.
The complainant understood that they arrived at about 7:00pm in the evening. He later said that his recollection of this time for arrival was based upon what DJ told him. He recalled that the weather was sunny and warm; even possibly hot. He was wearing elastic shorts. He recalled that the accused was wearing jeans and a t-shirt. The complainant said that at the party, he watched a DVD of cartoons on the television and had eaten different foods in the kitchen. He recalled having talked to his younger brother and DJ.
The complainant said that he was about to get a drink in the kitchen before a man, who he identified as "Damien", grabbed him by his neck, with one hand and dragged him away. Although he recalled biting and kicking Damien, he could not resist Damien. Damien grabbed him and took him to a bedroom. A sketch that the complainant drew (Exhibit A.3) indicates that the bedroom was close to the kitchen, towards the opposite end of the house; from where the front door was located. The complainant said that the attendees at the party were mainly located in the front section of the home near or on the driveway outside the front door.
Once inside the bedroom, the complainant recalled that Damien pushed and tripped the complainant so that he fell to the floor. The complainant hit his head. Damien locked the door. The complainant recalled that the room was lit. The blinds were drawn. Damien turned the complainant from his side so that he was lying on his belly. The complainant said that there was a mirror in the bedroom against a window (Exhibit A.2). He said that Damien ripped (in the sense of pulled) down the complainant's shorts and underpants and threw them on to the ground. He then got on top of the complainant. The complainant said he saw through the mirror that Damien pulled down his own pants and underpants to his legs, lay on the complainant's back and proceeded to insert his penis into the complainant's anus and thrust it backwards and forwards. The complainant recalled telling him to stop, but he kept on doing it.
The complainant recalled that at some point he stopped. He then said that Damien grabbed him, pulling him by his hair and got him to kneel on his knees. The complainant said that Damien "shoved his dick in my face". Damien was holding the complainant's head. The complainant said that Damien made him "suck his dick".
The complainant recalled that he stopped. The complainant got up. The complainant thought that he was allowed to go and was walking to the door. But Damien pushed him on his chest with his hands so that he fell back on to the bed. The complainant was lying on his back, with his legs hanging off the bed. The complainant's clothes were still on the floor and Damien's clothes were still around his legs. Damien took the complainant's penis into his mouth. The complainant said that Damien "sucked my dick". The complainant told him to stop and was kicking Damien. When he was about 14, in his interview with the officer in charge, the complainant identified on a sketch diagram where the penis was on the male body (Exhibit A.1).
The complainant recalled hearing sounds at the door. The complainant recalled, as he was leaving the room, at about the point he opened the door, Damien telling him to "keep it to yourself or I'll kill you".
The complainant recalled running home. In cross-examination, he said he ran from the house down the street to the intersection of M Road and I Street. Thereafter he stopped. DJ and BAW caught up with him. Thereafter he walked home.
About half an hour later, the complainant recalled that Damien visited his home at 58 M Road. He recalled the door was unlocked and heard his mother welcoming him in the home. At this point, the complainant was playing his X-Box game in the loungeroom. But when he saw and heard Damien, he raced to his bedroom and locked himself inside. He recalled that Damien was only at the home for about 15 minutes, but in that period, Damien approached the door to his bedroom and asked the complainant to open it. The complainant refused. Damien left without further incident.
It was only in May 2016 that the complainant said he first told his step-mother and father about what had occurred. About 4 months before his record of interview with the police (in June 2016), the complainant recalled hearing a discussion between his step-mother and her parents about the Facebook account for Damien.
In his record of interview, he recalled that Damien drove a black Holden ute. He saw another black vehicle at the place at 101 M Road when the complainant did the drive around, but the complainant said that it was a different vehicle. The complainant did not notice the number plates on either car.

[7]

Cross-examination

It was put to the complainant that the person he understood as "Damien" was not this accused. This was denied. The main aspects of the cross-examination centred upon propositions that:

the complainant had not corrected the police officer when she indicated her understanding that the assaults had happened at a party at his home. In re-examination, he said that when the question was asked, he did not understand whose house was being referred to. His intent was to indicate that the assaults occurred at a party at the accused's home;
contrary to his evidence, in his testimony and in his drive around on 14 July 2016, when he identified the black car as being the same one driven by the accused on the day of the alleged assaults, (T24.13, T61.30), the complainant had given inconsistent evidence of the vehicle being subsequently sold (prior to 14 July 2016) (T64.4 - 64.25). This meant that the vehicle he saw in 2009 could not have been the same vehicle as he saw on 14 July 2016. In re-examination, the complainant accepted that he had not seen the number plates on the black car either at the party or on the drive around;
the complainant had been over to the place at 101 M Road previously to the party, for the purposes of having a swim. The complainant said he did not recall this;
around June or July 2009, someone may have come around to his place, at 58 M Road, to bring a couch around to the home. The complainant said he did not recall this;
at Q110-117 and Q124-128 during the interview on 3 June 2016, when he was asked what happened, the complainant omitted to refer to the act the subject of count 3 (Damien performing fellatio upon him). The complainant said that his answers at A110-116, were directed to his understanding as to what his penis was used for. His account at A124-128 was only a partial description of the acts done to him;
the complainant gave different answers (A161-167) in the same interview, as to the day of the week that the alleged conduct occurred when he was just guessing. The complainant accepted that he was unsure what particular day that it was. He was only sure that it occurred in when he was 7 years old;
the complainant had given evidence that he did not see anyone as the accused was holding him by the back of neck and dragging him to the bedroom (A368-380), whereas he later said that he heard his mother telling him "Don't worry about it" (A563-565). The complainant said that there was a distance of about 10m from where his mother was and where the kitchen was. He heard her say these words as she was walking back outside;
there was no mirror in the room. The complainant maintained that there was. Later, in re-examination, the complainant said that the mirror in the bedroom was in a standing position; leaning against the wall. It was not affixed. He could see himself through the mirror, on an angle;
although he said that he was able to punch the accused in the face and bite him on the hands, as Damien had his hand around his neck and was dragging him away, it was curious that the complainant was not able to yell to the others in the front of the home. In re-examination, the complainant said that the music was loud and he repeated that the accused had his hand on the back of the complainant's neck so that he could not talk over the top of the music;
the complainant had given evidence, for the first time in cross-examination, of hearing a person asking where he was at the time when Damien was engaging in anal sex with the complainant, that the accused responded "I haven't seen him" (whilst covering the complainant's mouth) and that it was 20 minutes later that the assaults stopped;
if his evidence was that Damien stopped assaulting him after someone's voice emerged from outside the door (as conveyed by A295-303) and if that voice emerged during the anal sex, then the other sexual assaults he alleged (at A195) occurred could not have happened. Under cross-examination, the complainant said he "did not know". In re-examination, the complainant indicated he "did not know" what was being meant by the question. He again set out the sequence of events: he said that he heard the voice outside the door after the anal sex and when the accused had the complainant's penis in his mouth. It was about 20 minutes after hearing the voice, he estimated, that the accused unlocked the door and he was able to run out;
at any rate, he had the opportunity to cry out to whoever was calling out from outside the bedroom door. The complainant said that he could not because Damien put his right hand over his mouth;
when he later saw Damien attend his own home, and after he left the party, he had the opportunity to complain to his mother (and also his grandmother) about what had earlier occurred. In re-examination, the complainant said that his mother was on drugs and he did not think that she would believe him. He explained that he did not tell his grandmother since she was really sick and he did not think she would believe him. He added that at about midnight, he was collected by his father at 58 M Road;
the complainant may have complained to his brother about what had occurred. The complainant denied that he did;
the complainant had made up the allegations against Damien merely to provide a reason to stay away from DJ's place; given that his mother had mistreated him and he preferred to stay with his father and step-mum. He said in re-examination that although (as he had said in cross-examination) he loved his real mother, he would not lie to protect her;
the complainant had never identified the accused in an array or by photograph. The complainant accepted that he had not; and
the complainant had never heard anyone identify the accused by his surname. The complainant also accepted this.

[8]

The complainant's brother (BAW)

In 2009, BAW was 5-6 years old. When he gave a recorded interview with the police on 4 August 2016, he was 12 years old. Subject to an important qualification, that recorded interview constituted his evidence in chief. The qualification is that, over the objection of the accused, the Crown was granted leave to cross-examine him, on the ground that evidence in that record of interview was unfavourable to the Crown.
I will deal, first, with the main parts of his evidence in chief before considering the Crown's cross-examination of BAW, and then the cross-examination by Counsel for the accused.
The main parts of BAW's evidence as they emerged from the record of interview were that:

BAW understood that the reason why he was being interviewed was that his brother, the complainant, had been 'raped' by a person known as 'Damien'.
this occurred at DJ's home at 58 M Road, Budgewoi;
this occurred at a party, at night-time, when the weather was cold and it was in winter;
'Damien' was known to him in a number of ways: being 'mum's friend', 'mum's friend's dad' (this aspect was later corrected by him in re-examination), 'mum's friend' and 'dad' (which his mother referred to him as being);
he had met 'Damien' when his mother had urged him (and the complainant) to go and swim in the pool at "Damien's" place. He understood that his mother had met 'Damien' at the shops;
at his mother's party, he went to bed at 8:00pm. He recalled that this was on a Sunday because that morning, he and the complainant had to go to his father's place to take them to school the following morning;
he and the complainant shared a room at his mother's home. They also shared a bed;
he recalled that he and the complainant went to bed at about the same time; only that the complainant stayed up to watch movies on the laptop situated in the bedroom. He recalled that 'Damien' was out the back of the house at the point. BAW recalled he was wearing pyjamas, but could not recall whether the complainant was;
he recalled that 'Damien' came in and started to pull down his pants and put his "rude part" ("Damien's doodle") into the complainant's "bum". He described where the complainant was positioned when this occurred and identified that 'Damien' had entered the room (which he said had been closed by his mother) and that it was dark;
he recalled hearing the complainant yell out to his mother, but his mother did not hear him. BAW thought that she was too busy talking. This happened whilst 'Damien' was in the bedroom;
BAW then told the interviewing officer that he did not know that 'Damien' was in the room. He also said, later, that he did not hear the complainant saying anything during the time of the alleged assaults. He said he did not hear him yelling out, since he was asleep. It was the complainant who told him the following morning, whilst they were in the lounge room and after they had breakfast. This occurred in the context of the complainant asking him whether he, BAW, had come through the (bedroom door): at times BAW got up to go to the toilet through the night. In response to this question, BAW said "No it wasn't" and the complainant then said to him "I think (thought) it was Damien that was coming in". He recalled the complainant telling him that Damien had raped him. BAW recalled that the complainant appeared upset. Later in the interview, BAW said that he did not recall the complainant telling anyone else about what had happened to him;
at the time of this interview, BAW did not recall mentioning the incident to their biological mum; but did recall mentioning it to their dad a couple of months before;
he recalled that when these incidents occurred, he was in Year 3;
he recalled going to Damien's place for a party on one occasion, to celebrate someone's birthday. He recalled that he and the complainant were just having dinner. This ended up with someone getting involved in a fight. He identified that his mum was involved in the fight. He understood that that it was because someone was criticising his mother as to how she looked after BAW and the complainant. He understood that someone came up and hit his mum;
he recalled that he and the complainant went over to the house next door to Damien's house when this fighting had occurred. That was Kylie's house. Throughout this particular night, being the time when the party was at Damien's place, he recalled that he and the complainant spent the whole time together;
he thought that the party at his mum's place (where he understood the assaults occurred) took place before the party at Damien's house. He estimated that there was a long time between the two parties: Damien's party occurred during the school holiday. He recalled that as occurring at night-time; after the complainant's birthday;
he recalled that Damien drove a black Holden Ute;
he could not remember what Damien looked like; and
he recalled visiting Damien's home twice - once for the party and once to swim in the pool at Damien's house. He recalled swimming in the pool; which was in the front of the house. He recalled that Damien threw him and the complainant in the pool (after putting a life jacket on both of them).

[10]

Cross-examination of BAW (on behalf of accused)

In the course of cross-examination by the accused's Counsel, BAW said, in effect:

unlike many other conversations he might have with friends or his brother about ordinary topics, a conversation with his brother about his being raped was likely to be important and therefore likely to stick in his mind;
what he told the interviewing officer was likely to be correct, because he felt safe with her; and she was easy to talk to. He also understood the importance of telling her the truth and that it was a bad thing to tell lies;
when he went to Damien's place for a swim, the complainant was with him;
on the night that they went to the party at Damien's place, he, the complainant and their mother walked there, and they left together. It was only the one occasion that he attended a party at Damien's place;
he was in Year 3 at the time;
he recalled that music was playing loudly. He did not recall what the complainant was wearing;
he acknowledged telling the interviewing officer (Q245) that he and the complainant spent most of the time together at the party at Damien's place;
he did not recall any incident after they got home. He went to sleep, but not, (as usual) in the shared bed with the complainant. He slept in his mother's bed;
at the time that the complainant gave an account of what had happened to him, they were in the lounge of their mum's place at 58 M Road. The conversation was just between the two of them. MJ (their grandmother) was asleep;
his 'family' (his dad, step-mum and the complainant) moved to a place in Toukley. This occurred when he was in Year 3;
it was suggested to BAW, but he did not recall, that a conversation occurred as between himself, his dad, his step-mum and the complainant along the lines of BAW saying "It was probably what Damo did"; to which his step-mum and dad said "What", to which he responded "Damo was in the bed" before the complainant said "No it wasn't";
asked what it was that the complainant reported to him, BAW reaffirmed his earlier evidence that the next morning, the complainant asked him whether it was he, BAW, who had come through the door last night; and that when BAW said it was not him, the complainant said "it must have been Damien";
BAW was asked whether he had since spoken to the complainant about what occurred, including even the complainant's giving evidence at this trial. Though he saw the complainant the night after the latter gave evidence at trial, they did not speak about it. In re-examination, BAW said he could not recall any conversations with the complainant about Damien otherwise than in connection with the alleged assaults; and
although he said that he saw Damien at his mum's place 5 or 6 times, he cannot now recall what he looks like. He was not invited by the police to look at photos for the purpose of trying to identify who Damien was.

[11]

Evidence of the complainant's step-mother (TW)

TW is married to the complainant's father (CW). They began dating in July 2009. They later married in September 2012. She said that CW was staying at a place in Toukley in about August 2009. She later said, under cross-examination, that TW stayed at that place, on and off, from December 2009 until a point where she had moved in. By that point, CW's relationship with the complainant's biological mother, DJ, had, of course, well and truly broken down. By arrangement, the complainant and BAW would see DJ on weekends each fortnight; although over time, up until early January 2011, that access had dwindled to being as little as once a month. So, through late 2009 and throughout 2010, TW performed a significant role as carer for the complainant and BAW, assisting the children's father in that capacity.
TW recalled that the complainant and BAW last saw their biological mother, DJ, on 31 December 2010. It was soon after that, in early January 2011, that TW recalled a conversation with the complainant, BAW and their father (her then partner) in the kitchen at the place in Toukley. The context, as TW recalled it, was that she and her partner were trying to bathe the children. They noticed bruises on the complainant's body. She recalled that the complainant appeared "stand-offish". TW asked him what was wrong, but he would not say. She recalled the conversation continuing as follows: BAW said: "Damo did something (to the complainant)." She (and CW) said: "What's that?" The complainant said: "No. Nothing happened".
Under cross-examination, TW was referred to part of a police statement she had signed (in June 2016) in which she referred to a similar conversation. It was suggested, and TW did not disagree, that there may have been two such conversations.
TW recalled no further conversation that day, but she recalled a later point when she was discussing with CW whether something might have happened to the complainant. CW mentioned the name of what she understood was the biological mother's boyfriend. She said that she might have heard of that name.
Then in 2016, a very unpleasant event occurred within the family. TW was attending her baby daughter and heard the boys mucking around. She went in the boys' bedroom and saw the complainant "on top of" BAW. She demanded that they separate, before calling the Children's Helpline.
This event triggered a conversation between TW, the complainant and BAW. She asked the complainant how he knew "what to do with" his brother, and, if so, if that had happened to him. The complainant denied that this was so, but BAW said words to the effect "Well, it's what happened to you". The complainant then ran off and "shut down".
The next time she spoke to the complainant on this topic was after she and CW had spoken to the Joint Investigation Response Team ('JIRT'). Eventually, a point was reached when she had to explain to the complainant that he could not stay in the house with BAW. After this, the complainant explained that he was trying to do to BAW what Damien had done to him. He elaborated, though not to any significant degree, that he had been in bed with Damien, that Damien had touched him and made him do certain things. No further details were discussed at that time. It was TW who took the complainant to the police for his interview in June 2016. She could not recall whether she had spoken to the complainant about the incident since. Later in cross-examination, she said she stated how proud she was of the complainant after his police interview, but there was no discussion about what the complainant told the police.
Under cross-examination, TW denied that there was any 'family discussion' about removing the children from the care of their biological mother, DJ. She said that CW had already done this. It was also suggested to, but denied by, TW that she may have had a grievance against "Damien" because she understood that a friend of his had smashed into her car. She responded that no one had ever smashed into her car.

[12]

Evidence of the complainant's father (CW)

The complainant's father, CW, gave evidence of the status of his relations with the complainant's biological mother, DJ, and the development of his relationship with his step-mother, TW. At a point where his relationship with DJ broke off, DJ went to move in with her mother (MJ) at 58 M Road, Budgewoi. He started a relationship with TW in 2009. The arrangement for access rights for DJ to see the two boys was that she would see them fortnightly, on weekends. This, however, dwindled to once a month. She stopped seeing them altogether by the end of 2010.
CW recalled an incident, towards the end of 2009, when the children were picked up (from their mother's place). CW noticed that the complainant was very withdrawn and defensive. He did not wish to exhibit physical affection towards his dad. I infer that he had previously been physically affectionate with CW, prior to this episode. These behaviours were noticed again through 2010. His progress through his schooling also became unsettled. CW recalled that after noticing this behaviour, the boys did not wish to "go back" (to DJ's place at 58 M Road).
CW recalled that in 2016 TW had reported to him an episode where the complainant had tried to pull BAW's pants down in the boys' bedroom. CW did not see this himself, but he heard TW have a conversation with the boys. At this point, CW recalled saying to the complainant words to the effect that "boys don't do that to other boys, and especially their brothers". He recalled that the complainant said nothing. The boys were promptly separated and then went to school. After this, the Children's Helpline was rung.
CW recalled another conversation, not long afterwards. This was when the boys were taken to the JIRT office at The Entrance. He recalled saying to the complainant that what he had done (to BAW) was "not wrong, but not right" to which the complainant responded that he had done "nothing wrong". The complainant provided no further information at this time.
CW recalled these conversations as having occurred prior to the complainant being interviewed by the police in June 2016. Between June 2016 and February 2017, when the complainant had his second interview with the police, there was another conversation in the bedroom. This was directed to TW, but CW was present in the room. The context here was that the boys were to be separated (the complainant being removed from the house) and CW and TW were explaining to the complainant and BAW why that was so. In the process of providing that explanation, CW recalled the complainant saying "Why mum? It happened to me too. Damien done it to me too". CW elaborated that this was said amid discussion of his trying to pull down BAW's pants.
CW recalled asking the complainant who 'Damien' was and the complainant responded "Mother's boyfriend". CW had not himself met 'Damien'.

[13]

Significance of evidence of complaint

If the reports were made substantially to the effect recalled by BAW, and the complainant's parents, then I can use them as some evidence, independent of the evidence given of the incidents described by the complainant, when giving evidence. I am entitled to use what was said in that or those reports, as evidence of the truth of what the complainant alleged against the accused, general though that was. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. It is a matter for myself whether that conclusion in the case of the complainant should be drawn. It would be open for me to so treat the particular complaint as evidence of the alleged misconduct by the accused, in addition to the evidence that has been given about it during the trial. If I do use it as some evidence of the misconduct, that is the subject of the charge, then what weight I give it is, again, a matter for me.
Secondly, the evidence of reports has another purpose. The Crown contends that the fact that the complainant reported, albeit in general terms, that he had been, to paraphrase, sexually interfered with by the accused at the time and in the manner that he did would lead me to accept the evidence he gave. In other words, it makes the evidence of the complainant more believable than if he had not reported the allegations as he did.
If I am satisfied that the reports were made, then the question I must ask myself is, did the complainant act in the way I would expect him to act if he had been assaulted as he said he was? Is what he did the sort of conduct I would expect of a person who has been assaulted in that way? If I thought that the complainant had done what I would expect someone in his position to do, that may support the Crown case because I might find that there is a consistency between the complainant's conduct and the allegations that he makes against the accused.
On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as he described, then that may indicate that the allegation is false. But I bear in mind, when considering this issue, that there may be good reasons why the complainant did not raise or report the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false. In this regard, I refer to the complainant's evidence that he was threatened by Damien after the alleged assaults had occurred.

[15]

Warning: effect of delay

If I did not have regard to what the complainant said to BAW on the morning after the barbecue, the complainant did not expressly complain or report about what he claims that the accused did to him until he told his father and step-mother in 2016.
The delay in making a complaint or report about the alleged conduct of Damien does not necessarily indicate that the allegations that the offences were committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. I refer to earlier comments above.
However, the delay in making a complaint is a matter that I may take into account in assessing the credibility of the complainant's evidence as to what he said Damien did. Damien has not, in terms, argued that the delay in making a complaint or report is inconsistent with the conduct of a truthful person who has been sexually assaulted and so I should regard this as indicating that the complainant's evidence is false.
But there are some practical effects of delay which I should bear in mind regarding the issue of the delay in any complaint being made by the complainant to his parents about what had occurred to him in 2009. I need to fully recognise the effects of delay of complaint on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
In this regard, although no specific reference was made by the accused's Counsel to the matter, I refer to the following difficulties typically encountered by the accused in testing the evidence of the prosecution, as I see them:

the delay in instituting the prosecution, being many years after the alleged events occurring;
the possibility of distortion in human recollection;
the nature of the allegations is such that (disregarding BAW's initial evidence) only the complainant said he did the things attributed to the accused;
although he did identify potential witnesses in an alibi notice to say where he was for some parts of 2010, the delay meant that he might have been at a disadvantage in gathering other evidence of his movements in 2009. For example, in 2019, his father, Garry died. His father might have had something to say about the accused's movements in 2009 and relations between the accused and the complainant's mother. In saying this, I note that in June 2019, Officer Hayward had spoken to Garry and he took the opportunity to say that the accused 'wasn't at the party' and did not want to get involved. It is possible that he may have been more forthcoming if the complaint had been brought to the police's attention earlier; and
the prosecution case is substantially based upon the evidence of the complainant.

These difficulties may put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence to establish a reasonable doubt about his guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant's memory for details would have been clearer. This may have enabled his evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainant's inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on his evidence by pointing to circumstances which may contradict him. Had the accused learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his Counsel in cross-examination of the complainant.
Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I can find the accused guilty, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny, I must bear in mind the matters I have just been speaking about - the fact that the complainant's evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support his defence.
I accept, as Counsel for the accused reminded me, that there were at least two instances where the complainant denied to his parents being assaulted by the accused.

[16]

Evidence of the complainant's mother (DJ)

The complainant's mother, DJ, said that after her separation from CW, she moved into premises with her own mother (MJ) at 58 M Road, Budgewoi. Initially, she lived in a caravan leased on those premises but when the lease over that caravan expired, she moved into the home situated on that land. She confirmed that at a point after the separation, by arrangement, her sons visited her infrequently.
DJ said she met 'Damien' at a point when she was helping his father, Garry, who lived at 101 M Road. Garry had another son, Dwayne, who she said lived with 'Damien' at the same premises. She was helping Garry to cope with his grief after the death of Garry's wife, which occurred in June 2009. She recalled visiting Garry a couple of times; and that 'Damien' was sometimes there when she did. She denied that she was in a relationship with 'Damien' - they were just friends.
When she was cross-examined, with leave, by Madam Crown, DJ said that she attended a birthday celebration for 'Damien's' brother, Dwayne, at 101 M Road. She thought 'Damien' was in attendance on that occasion. This was before the two occasions she took her sons to that home that I will now turn to.
She recalled taking her sons to 101 M Road on two occasions. During the course of cross-examination by Madam Crown, who had been granted leave, she indicated that prior to the swim at the pool, she had previously attended the premises - but not with her children - to attend a birthday party for Dwayne. When she said in her police statement (19 September 2017) that she went back home after a party at 101 M Road, and then later returned, she explained that it was this party - to celebrate Dwayne's birthday - that she was referring to.
The first occasion when she recalled taking her sons to that address was to take them over for a swim. In relation to that visit, she recalled that Dwayne was in the pool and had thrown the children, playfully, into the pool with flotation devices. On this occasion, she recalled that apart from herself, her children and Dwayne, there were two other visitors, a woman named 'Joanne' and her own mother, MJ. On this occasion, DJ said that she saw 'Damien' as she went to go to the toilet, but he was in his bedroom, on his computer. She did not see him interacting with anyone else, including her children. She recalled that the visit did not last long.
The second occasion was a barbecue. She did not recall when this occurred, or the time of the year. At best, her recollection was that it occurred in 2009 or 2010. But she was somewhat equivocal when she said this: it may have been not long after the swim. She did not recall whether it was for a particular occasion. She said, initially, that she arrived at about 5:30pm. She and her sons had walked there. She later said, under cross-examination by Madam Crown, that she was guessing about the time they arrived there.
Under cross-examination, she was referred to a statement she made to the police suggesting that the barbecue was for Dwayne's birthday party and had occurred in 2009 or 2010.
In re-examination, DJ confirmed that her evidence concerning a barbecue was about a different event to her evidence of attending Dwayne's birthday party. It was at the barbecue when she assisted in acting as a 'bar lady'.
DJ gave evidence that she was unaware that her children knew 'Damien', or had met him before, or even were aware that 'Damien' was a friend of hers.
She recalled that there were a range of adults on this occasion. One of them, Wayne, and his wife, had a baby. Otherwise, she recalled no other children, other than her own, being there. She said that she saw 'Damien', but only saw him in his bedroom. She recalled going to his room to take him a drink; although she accepted that she had not referred to this circumstance in her police statements. Later in re-examination, she said she recalled that she gave him the drink in her capacity in acting as the "bar lady". She said she did not see him in any other area of the house. After leave had been granted to Madam Crown to cross-examine her, she was referred to a statement she had previously made to police to the effect that she saw him in the vicinity of the toilet where she, and the complainant, encountered 'Damien' and 'Damien' said to the complainant that he was going to 'smack him in the mouth'. DJ thought the complainant had been 'mucking around', in the sense of being 'cheeky', when 'Damien' said this in front of the complainant. As it was, when 'Damien' said this, she did nothing and said nothing. This encounter occurred near 'Damien's' bedroom door. Later, when cross-examined on the accused's behalf (upon her recall), she could not actually recall that conversation.
Confronted with this previous statement of Damien's encounter with the complainant, DJ said that she thought that she told Damien about her two sons and that she thought Damien knew of them at least as at the time of the barbecue. She thought that it was at the barbecue that Damien met the complainant, but she could not actually recall introducing them. Asked to explain why she did not introduce them, DJ said she was only being protective of the complainant and she thought that Damien was preoccupied. She said that the complainant and BAW were with her during the party, though she recalled that they were eating. She herself had a couple of drinks.
It was put to her on behalf of the accused that the accused was not at the birthday party for Dwayne that she referred to. DJ responded that she did not know. DJ was referred to the circumstance of her giving the police no less than three police statements. In none of them did she give the police an account of any event involving the accused and complainant at a party. When it was suggested to her that there was no conversation between the accused and complainant, she said she was not sure on that. Ultimately, it was suggested to her, and she agreed, that her memory of what had occurred at the barbecue had faded.
She recalled leaving around 11:30pm or 12:30am, but accepted that it could have been earlier. She later accepted that this was just a guess. All she recalled was that they left at night-time, since it was dark. Under cross-examination by the Crown, she was referred to her previous statement to the police that she left at 7:00pm or 8:00pm. She said that this was a guess as well. She could not explain why she gave this time estimate to the police.
Before she left, she recalled being involved in a physical altercation with another one of the adults at the barbecue, "Cindy". This was a reference to Cindy Wall. DJ recalled that it related to Cindy's opinion that she was leaving her young children out at night-time. She thought that Cindy had overstepped the mark in telling her how to bring up her kids. It was the altercation which, she said, prompted her to leave. She said she was sure that this altercation occurred on the night of the barbecue; not on the occasion of the swim; or the (earlier) occasion of Dwayne's birthday party.
Later, in cross-examination, the concept of her protectiveness towards her children was explored further. She had, as noted, sought to explain why she had not introduced her children to the accused at the party on account of a sense of trying to protect them. Counsel for the accused asked her to hypothesise her reaction, given how "protective" she was, of her children when being ticked off by Cindy, of what she would have done if she became aware that her son, the complainant, had been grabbed by the neck by anyone. She agreed (in effect) that, on this (bare) hypothesis, her reaction would have been violent.
She recalled arriving home at about 1:00am, but that could have been incorrect. When she gave that estimate, she did so with the qualification that she was not good with times. They arrived home 20 minutes, or so, after leaving the barbecue. She recalled that she had allowed the boys to stay up to watch television. This was, as far as she was concerned, a 'one off'. She was referred to her statement to the police which recorded her describing that the boys appeared 'happy and fine' after getting home and watching television.
She said that her place at 58 M Road had a deadlock, at the front and back doors. She maintained that she always locked the place. She recalled the boys going to bed. She said that she, herself, did not sleep that night. She recalled having coffee with MJ. Under cross-examination, she said that it was not long before the boys went to bed. Other than MJ and her children, she said she did not see anyone else come into the home.
She said she stayed home and did not return to the barbecue. When in cross-examination by Madam Crown, she was referred to an earlier statement about returning to 101 M Road, she said that this was properly a reference to the time she attended those premises earlier, for Dwayne's birthday celebration, which was the occasion at 101 M Road that the children did not attend.
She said that when she was living at 58 M Road, she sometimes had parties, but often. They were not "big".

[17]

Evidence of the complainant's grandmother (MJ)

This witness is DJ's mother and the maternal grandmother to the complainant and to BAW. She confirmed living at 58 M Road, Budgewoi in 2009 and 2010 and confirmed DJ moving into a rented caravan for a time after her break up from CW; and her eventual move into the home. She also confirmed receiving visits from her grandchildren, in visits to DJ, she thought, every second weekend before they reduced to a month; and then not at all (from about December 2010).
On the occasions when the complainant and BAW did visit 58 M Road, to be with DJ, MJ recalled that they generally slept in DJ's room. DJ stayed on a couch in the lounge room. There was no fold-up bed.
MJ said that she was friends with Garry, the owner of the premises at 101 M Road. MJ met them though a friend (Cindy). After the death of Garry's wife, Loreena, MJ used to go there and briefly socialise.
MJ recalled taking, or being with, the complainant and BAW at 101 M Road on two occasions. The first was for a swim. This event occurred after DJ had moved into the home at 58 M Road - it might have been a couple of weeks after; she was not sure. On that occasion, she recalled that Garry, his son Dwayne, DJ and her kids, and she were there. She said that "Damien" was not there. At that point, she "sort of" knew who Damien was. She recalled that Damien had been there at times when she visited Garry (without her grandchildren) but that he was either in his bedroom or out the back, with friends.
The second occasion she went, with her grandchildren, to 101 M Road (which occurred after the swim) was when she, DJ and the children went there for a barbecue. She recalled that they arrived at about 5:00pm. She recalled that they had walked from their place at 58 M Road. Later, under cross-examination, she said she thought that the weather was warm.
MJ recalled that Damien was there: she saw him out the side, near where the barbecue was. She recalled speaking to Damien: Damien had come out to say hello to her and he suggested that she and "the boys" should have something to eat. MJ recalled that the boys were running around in the driveway. MJ confirmed that he was there at the barbecue.
MJ recalled that later in the evening, on the day of this barbecue, an incident occurred between DJ and Cindy. She recalled Cindy mentioning, or suggesting to DJ, that as it was getting dark, DJ might want to consider taking her sons home. DJ was not happy with this suggestion and MJ recalled that an argument ensued; though she did not recall any physical altercation between them.
At MJ's suggestion, she recalled that DJ took the boys home. She thought that was around 8:00pm or 9:00pm, though she was not sure of the time. She followed not long after. She recalled that when they got home, the boys stayed up. They were in the lounge room with DJ watching television. She recalled seeing them go to bed.

[27]

Warning regarding admissions

I approach the evidence of Officers Hayward and Rawling of these statements by the accused with caution. This is because the circumstances in which it is alleged that the suggested admissions were made may make the evidence unreliable. I do not say that such evidence is inherently unreliable. The reliability of the evidence is a matter for me to decide. I must, however, be cognisant of the possibility that evidence of this kind may be unreliable and to consider why that is so. There are a number of reasons why the evidence may be unreliable. Generally, it is easier for police officers to fabricate their evidence than it is for the accused to have evidence available to challenge what they have said.
First, although Officers Hayward and Rawling had a notebook and the capacity to record what they said to the accused, and what, if anything, he had said, they did not use it. Even if I accepted their explanation for not recording the statements - that they were not made during the course of "official questioning" of him - the fact remains that there is no confirmation that those admissions were made independent of the officers who say that they were made by the accused.
Second, there was no-one present during this conversation in Rockhampton except the accused and the police officers. That state of affairs is not improper. The police officers were perfectly entitled to ask any questions of the accused alone. What this means, however, is that there was no independent person present who might have been able to support the accused's challenge to the police evidence.
Another matter I take into account is that the accused had no opportunity to make any note of his conversation with the police officers at the time of that conversation. A note made by the accused at the time might have enabled him to challenge the evidence of the police officers more persuasively.
All of these matters mean that the evidence of the police as to the disputed admissions may be unreliable. For this reason, it is necessary for me to approach their evidence with caution in deciding whether to accept it and what weight, or significance, I should give to it.
As I have said, there are two matters for me to decide. The first question for me to decide is: were the admissions made?
The second question for me to decide is whether, on the basis that I accept that the statements were made, what use I can make of them?
Separately, and in addition to the direction I have given myself as to the reliability of the statements attributed to the accused by the police officers, I note that the accused's counsel submitted that pursuant to s 165(1)(f) of the Evidence Act 1995 (NSW), I should also warn myself about the reliability of oral evidence of questioning by the police officers, to the accused in Rockhampton in June 2017. In my reasons for admitting into evidence the alleged admissions of the accused to the officers, I observed that the expression 'questioning' in s 281 of the Criminal Procedure Act bore the same meaning as 'questioning' under s 139 of the Evidence Act. So, too, in my opinion, does it carry the same meaning as 'questioning' under s 165(1)(f). In my earlier ruling on admissibility of evidence of the statements, I held that such question, or questions as Officers Hayward and Rawling raised of the accused in Rockhampton in June 2017 did not constitute questioning. There is no occasion, therefore, to direct myself further to the question of the reliability of the police officers' evidence.

[28]

Directions about the use of evidence

The Crown says that each statement was a lie because there were facts which showed that the accused was in Budgewoi in 2009 and also knew of the complainant. There are a number of matters about which I need to direct myself.
First, I must recognise what a lie actually is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made the statements I have just referred to, and find each of them was a lie, I may take the lies into account as evidence of the accused's guilt, but can only do so if I find two further things which I will refer to shortly. They can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told lies that this finding can prove the guilt of the accused by themselves.
Apart from the fact that the accused (a) made the statements and (b) that they amounted to deliberate lies, before I can use the lies as some evidence of the accused's guilt, I must find two further matters proved.
First, I must find that what the accused said that amounts to lies relates to an issue that is relevant to the offence the Crown alleges that the accused committed. It must relate to some significant circumstance or event connected with those alleged offences. The Crown says it is relevant because the Crown says that facts in issue are the place of the offences (being a property in Budgewoi) and identification that it was the accused (rather than, say, some other 'Damien') who knew of the complainant.
Second, I must find that the reason the accused told these lies is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
The Crown says I would be satisfied of that because the only reason for him making these statements was to throw police 'off the scent'.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, then the lies cannot be used as evidence of the accused's guilt. If that is the case, I must put them to the side and focus my deliberations upon the other evidence in the case.
To summarise, before I can use what the accused said as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lie related to some significant circumstance or event connected with the alleged offence. I must find that the reason the accused told this lie was because he feared that the truth would implicate him in relation to the commission of the offences for which he is now on trial.
The accused's counsel did not address me on this issue.

[29]

Evidence to disprove alibi evidence

As will be noted, the accused relied upon an alibi. In essence, the accused disputed that there was any 'party' at 101 M Road, Budgewoi in 2009. The accused asserted that there was only one 'party' at 101 M Road during the calendar years 2009 or 2010, and that the occasion for that party was a celebration of his brother, Dwayne's 21st birthday party. That party occurred on the Saturday before the birthday (13 March 2010) or the Saturday after (20 March 2010), with the birthday falling on 18 March 2010. But the accused said that he was unable to attend that birthday celebration since he was in custody in the period from 11 January 2010 to 15 April 2010. In this respect, the accused relies upon Exhibit M. But even if the party fell on some other date, the accused listed other persons who attended the birthday party to celebrate his brother's 21st birthday.
The Crown tried to disprove the alibi evidence in a number of ways.
First, it says that there is evidence that, contrary to the accused's assertion, there were other social occasions, whether they were "barbecues" or "parties", at 101 M Road, Budgewoi in 2009 and up to 10 January 2010 in a period of time not covered by the asserted alibi evidence. This testimonial evidence is identified above.
Secondly, it says that other than to the extent that the Crown called witnesses (on the accused's list of alibi witnesses), it conducted reasonable efforts to contact to procure the assistance of the list of persons referred to on the accused's alibi notice.
The officer in charge of the investigation, Detective Senior Constable Hayward, gave evidence indicating her attempts to speak to and obtain evidence from the persons listed as having attended the party to celebrate Dwayne's 21st birthday party either on 13 or 20 March 2010, that were referred to in the accused's alibi notice dated 21 January 2019, signed by the accused's solicitor (Exhibit 1). The alibi notice, in some, but not all, cases indicated contact details for each of the witnesses identified. The results of those attempts were as follows:

Dwayne. He gave evidence to the effect that his 21st birthday party occurred on a Friday night (in March 2010): see above;
Shane. He gave evidence to the effect that there was a 21st party for Dwayne on 13 or 20 March 2010 (a Saturday): see above;
DJ. She gave evidence of attending Dwayne's 21st birthday celebration. This however, was distinct from the 'barbecue' which she took her children to: see above;
MJ. She gave evidence, although, at times, her evidence appeared to conflate a barbecue with Dwayne's birthday (she did not expressly mention a 21st birthday party) She recalled seeking Damien at a barbecue at which the complainant was present: see above;
Cindy Wall. She declined to provide a statement or be involved in the matter;
Chris Wall. Officer Hayward attended Newcastle Police Station and asked this person if he would provide a statement. He declined to provide the statement or get involved;
Jason Wall. On 19 June 2019, Officer Hayward attempted to contact this witness. He declined to provide any statement or get involved;
Dot Sheehan. Attempts were made to call this person on the number supplied and voice mail messages given. No response was received. No other number for this person could be located;
Wayne Sheehan. The mobile phone number and email for this person was utilised to contact this person, but unsuccessfully. However, Officer Hayward gave hearsay evidence (without objection), sourced from what Detective Senior Constable Stuart Chang had informed her, about this person's unwillingness to assist; although the person purported to say that "he (Sheehan) was there at the party and was acting as security for the night, (that) there was no children present during the party (except his daughter and one other child, who was not the victim)";
Bradley ("Paddles") Tillman. A statement was obtained by him. The Crown did not call him and the accused did not call him;
Kylie Dunn. The mobile number supplied was rung, but was not connected. Another number was located for her name, but contact was unsuccessful, and no other number could be located;
Garry. Officer Hayward spoke with him on 17 June 2019. He initially said that the accused was not at the party. When the Officer asked him whether he wanted to provide a statement, he declined to be further involved. He died on 5 October 2019;
Jed Bannister. The officer spoke to this person, but he declined to provide a statement or attend Court;
Daniel Stanson. Officer Hayward was unable to locate this witness (about whom no contact details were supplied on the accused's behalf);
V J Higman. Officer Hayward contacted this person on 19 June 2019. The person declined to provide a statement or get involved; and
Timothy Phillip. Officer Hayward was unable to locate this witness (about whom no contact details were supplied on the accused's behalf).

Documents produced by the Salvation Army Dooralong Transformation Centre in response to a request from the officer in charge about any admission by him to the facility (Exhibits E & F). The documentation produced in response indicated that although an assessment was made for whether the accused should be admitted on 27 February 2010, the assessment was completed in 2 August 2010. A covering email suggested that if someone was to be admitted to that facility, there would be a significant paper trail. No significant paper trail was in evidence before the Court.
On 25 May 2020, Officer Hayward had a telephone conversation with Matt Stubbs, the Program Manager at Dooralong Transformation Centre, who had produced the said documents to her. She gave hearsay evidence (not objected to) sourced from Mr Stubbs to the effect that the accused was never admitted to this facility.

[33]

The Crown's submissions

The Crown generally submitted that the Court should find all of the elements of the offences established beyond reasonable doubt. Following the conclusion of the evidence, there was no doubt that, if the acts occurred, they satisfied the definition of 'sexual intercourse'. The only question was whether, at the time that the complainant was aged 7, this accused engaged in the offending conduct. The Crown accepted, however, that bound up in this question was whether it was possible for the accused to have engaged in the alleged conduct, in the case of being at 101 M Road at the relevant time.
The Crown's case, ultimately, is that the Court should be satisfied beyond reasonable doubt that the alleged offending conduct occurred at a barbecue at 101 M Road. It said that there were a number of barbecues that occurred at those premises in 2009. Its case was that at one of those barbecues, DJ, MJ, the complainant and BAW were in attendance and that so too was the accused.
The Crown submitted that, making due allowances for his age and the periods of delay in which he gave accounts of what had happened to him, the complainant was both credible and reliable.
There were several matters which confirmed or corroborated his recollections. There was, for example, similarity in the layout of the place at 101 M Road, in the sketches respectively drawn by the complainant and Dwayne. There was DJ's evidence of seeing the accused at the barbecue; and, moreover, her clear recollection of three events: Dwayne's 21st birthday celebration; the swim; and the barbecue when she had the altercation with Cindy. I will return to my views on the weight of DJ's evidence later.
The Crown submitted that the events occurred in 2009 and not in 2010. This was the answer to the accused's alibi. There was other evidence supporting the complainant's recollection that he was aged 7 at the time of the conduct. There was the development of his mother's relations with Garry and the accused after the death of Loreena in the middle of 2009; which involved her very often going to 101 M Road, including for social occasions. It was in July 2009 (at least) that DJ took a lease over the caravan at 58 M Road, which facilitated this access. The circumstances emphatically showed that Dwayne's 21st birthday party, if (as appeared likely) that party occurred in March 2010, did not involve children.
The Crown submitted that the complainant was able to identify the accused. He gave evidence of the accused having visited his mother's place at 58 M Road before. He gave a detailed description to the police of the accused's appearance at the time. The complainant was not challenged as to that evidence. The complainant was able to identify the colour and model of the car that he saw the accused driving back into 101 M Road. Other witnesses had identified that the 'Damien' who was sighted at the party was the accused. Dwayne, the accused's brother, had identified a room in his sketch of 101 M Road as "Damien's room".
The Crown addressed inconsistencies in the complainant's account of what he told the police and the evidence he gave. Much of this centred around curiosities suggested on the accused's behalf as to why the complainant did not do certain things, such as why he did not cry out when he was being dragged away; or why he did not yell out when, at the time he was being assaulted, he heard a knock on the door. The Crown reminded me that allowance had to be taken of the circumstances that he was aged 7 at the time of the alleged conduct; and aged 13 when he reported it to police and now aged nearly 18 at the time he gave evidence at trial. There were, the Crown accepted, differences or discrepancies in some of the detail of what the complainant had said occurred. On the other hand, there were answers that he gave, requiring a detailed answer, which were plausible.
The Crown also addressed the credibility or reliability of BAW. The Crown contended that, generally, BAW's evidence was unreliable. Nevertheless, if there was one thing that BAW was firm and credible about, it was his linkage of his understanding when the offences were said to have been perpetrated upon his brother and his mother, DJ, having a fight with Cindy. He was aware that this fight did not occur at 58 M Road, but at 101 M Road. Further, the Crown submitted that BAW's evidence could be accepted as corroborating the complainant's account that he had, generally, been interfered with by the accused in some way, if not the details associated with the interference. That is, although the complainant was not, in substance, making a complaint and had, indeed, denied saying anything to BAW, the Court could find that when BAW's evidence was considered alongside CW and TW's evidence, the complainant did give a report to BAW that Damien had done something wrong to him and this report was given the day after the attack.
The Crown submitted that the accused's answers, when taken into custody in Rockhampton in June 2016, were lies which manifested a consciousness of guilt. The statements which, the Crown submits were made, were not only lies, but lies told for the purpose of throwing the police 'off the scent'.
On the alibi defence, the Crown said that this defence was redundant. The Crown did not submit that the offending conduct occurred at a 21st birthday party for Dwayne. No children were invited to, or attended, that party. That was, in substance, the only event which was the subject of evidence that occurred in the period that the accused was in custody (10 January to 15 April 2010).
As to the suggestion in the alibi notice that he was in custody, from April 2010 to September 2010, on the basis that he was receiving treatment from the Dooralong rehabilitative facility, the evidence from that facility indicated that the accused was not there in that period.

[34]

The accused's submissions

Counsel for the accused commenced by reference to the birthdays of the complainant and BAW, and when they, respectively, estimated the date when the alleged offending occurred. Taking these 'into the mix', the window of opportunity for the offending was narrow: 3 March 2010 to 22 July 2010.
Counsel for the accused accepted that if the complainant's account was accepted to the requisite standard, then the Crown would have made out that the offences occurred. The accused's point is that he did not commit the offending conduct.
I asked Counsel for his submissions as to what warnings I should give myself, sitting alone. Counsel's response was that warnings might be made about the out of court statements, comprising evidence of complaint and the alleged admissions of the accused when he spoke with the police officers in Rockhampton in 2017. These warnings were said to be necessary in accordance with s 165 of the Evidence Act. I pressed Counsel whether he submitted that it was appropriate for me also to direct myself in accordance with s 293A of the Criminal Procedure Act. Counsel submitted that I could find that there were inconsistencies in the complainant's account, but he did not impress upon me any need to direct myself in accordance with that provision.
It is not, I think, unfair to say that the balance of Counsel's submissions were to a significant degree all about establishing inconsistencies and gaps in the complainant's evidence, or demonstrating that the complainant's evidence was contrary to the evidence of other witnesses, with a view to impugning his credibility or reliability. Counsel for the accused relied upon the following:

he told the police that he had been raped at 'his' house (being a reference to 58 M Road), whereas he said at trial that it occurred at 'Damien's' house;
DJ had rejected the proposition that 'Damien' was her boyfriend;
DJ and BAW did not say that Damien was introduced to the complainant at about the time they arrived for the 'party';
the room that the complainant identified as being the bedroom where the assault occurred (being 'Damien's room' Exhibit A.3) in the layout of the home appeared more closely to coincide with the bedroom of Dwayne (Exhibit 2) and the complainant's description of the room in which he was attacked (that it had windows) was not the case with his bedroom (which had a sliding door access out to the pool area);
BAW's reference to the complainant asking him whether it was he, BAW, who had 'come through the door' during the evening was given in a context where BAW had recalled that the event took place at their own home, being 58 M Road, and not 101 M Road;
the complainant's evidence that his mother was aware that 'Damien' had hold of him was rejected by DJ;
the complainant's evidence that he ran (partially) home, almost straight after the alleged assault, was not supported by DJ or BAW;
there was a conflict in his evidence in his recorded interview as to whether the acts which the subject of each count had all occurred, or only some of them; and
his evidence that the accused placed his hand over the complainant's mouth during one of the acts was a recent invention.

Counsel submitted that inconsistencies in the complainant's first interview were transparent.
Counsel for the accused also laid emphasis upon the complainant's evidence that he understood that the reason for going to the place at 101 M Road was for a 'party'. At one point during his interview, he said it was "probably" his birthday. Read in context, this appeared to be a reference to Damien (noting that the latter's mates were also there) but in his next answer the complainant qualified his evidence by saying that he was "not sure".

[36]

Reliability

As I understood her submissions, Madam Crown did not suggest that the reliability of the complainant's evidence was infallible. But just because the complainant's account of what occurred, in certain circumstances, was contrary to the accounts of other witnesses, did not make his evidence unreliable. Further, parts of his evidence were accepted by some witnesses; but not others. Madam Crown submitted that I can accept part of his evidence, but not other parts. She also reminded me that when he gave his primary record of interview, when aged nearly 14, he was giving an account of what occurred to him when he was 7. As indicated, the accused's Counsel pointed to a number of matters, including inconsistencies or gaps which, he argued, suggested that the unreliability of the complainant's recollections went well beyond the submissions made by the Crown.
Both the Crown and the accused's Counsel referred me to the complainant's evidence of the layout of the premises at 101 M Road to support their cases. The Crown submitted that, for a child who had not been there before the barbecue (aside from a swim), nor conducted any tour of the premises, the complainant provided a remarkably similar layout to the layout given by Dwayne: he noted the pool, he noted two bedrooms on the left side of the home (Dwayne identified three), and a kitchen on the upper right side (looking from the front) and a lounge room on the lower right side (looking from the front); which also corresponded with Dwayne's diagram. The complainant provided this account in June 2016, many years after he said the offending conduct had occurred.
As indicated, Counsel for the accused pointed to one material difference: whereas the complainant identified the room in the upper left side (from the front) as 'Damien's room', Dwayne had identified it as his own room. I prefer Dwayne's evidence that it was his room. This carried the consequence, the accused reminded me, that the complainant's case must be that Damien had dragged him into Dwayne's room which was improbable: there was the risk that Dwayne might enter it.
The question of which room the alleged conduct occurred in is complicated further, since the complainant recalled that there were windows in the room (he had written this in his diagram of Damien's room, in Exhibit A.2), that one could look out and see the pool from the windows. This is consistent with the physical description of 'Damien's room' that was given by Dwayne. Yet a further complication is that the complainant gave evidence that at the time of the alleged assaults, although there was lighting on, the curtains surrounding the windows were closed. The Crown submitted that the offending conduct occurred in 'Damien's room', as that room was identified by Dwayne.
It needs to be recognised that the complainant drew this diagram, of a residence he had visited (apparently) only twice, between 6 and 7 years after the alleged assaults. It was natural that in attempting to draw the diagram, the detail inserted was the result of his applying his mind to the details of layout that had significance to him. I would not expect, for example, that he would recall where the parents' bedroom was. The results of the application of his turning his mind back to the layout was to indicate that what Dwayne identified as "Damien's" room was more centrally located within the house than where the complainant had recalled it to be. Nevertheless, even if, as I accept, Dwayne's description and diagram as being more accurate, in my view this does not materially affect the reliability of the complainant's recollection of the layout. Party-goers were outside. Loud music was playing. If "Damien" was intent on engaging in the alleged conduct, because of the shortness of distance, between his bedroom and Dwayne's bedroom, it is far from obvious that it would have mattered to the accused which room he chose to engage in the alleged conduct: there were risks of detection in either case. Further, both bedrooms were adjacent to each other. Both were near the part of the house where the kitchen was, being the room where the complainant said he was dragged away by the accused. Both were not far away from the toilet. Dwayne corroborated the complainant's evidence that 'Damien's room' was near the toilet. I agree with the Crown that, on balance, the probative value of the exercise was that it revealed that the complainant was able to recall, virtually 7 years after the alleged conduct, many features of the layout of the premises which he had only visited, at most, twice, in a considerable amount of detail. That, in my view, enhanced, overall, his general reliability.
In considering the reliability of his recollections, it is also relevant to consider them in the light of the evidence from other witnesses. As indicated (below), the Crown acknowledged that DJ was, overall, an unsatisfactory witness. Nevertheless, even unsatisfactory witnesses may give probative evidence where it is corroborated. I agree with the Crown that whereas DJ had a poor recollection of dates, her process of recollection of events relied upon the association of those events with certain distinctive features. In this, she was hardly exceptional. Thus, she recalled Dwayne's 21st birthday celebration with reference to that party being attended by a stripper. In this, her recollection was supported by Dwayne himself. Next, she recalled a swim at 101 M Road with the two kids. In this she was supported by MJ (and Dwayne could not discount the possibility). Most materially, for the way the Crown advances its case, she associated the barbecue with reference to her later punching Cindy Wall. In this, she was supported by the recollections of each of the complainant, BAW and MJ. By a similar process of reasoning, that is by proceeding to a recollection of event "A" by reference to feature "B", DJ recalled seeing 'Damien' at the barbecue, because she performed the role of "bar lady" and served him a drink. DJ's recollection of seeing Damien at the function was supported, independently, by MJ.
Contrary to the submission advanced on behalf of the accused, I do not consider that the complainant was emphatic in any recollection that the attendance he recalled was for a 'party', or even a 'birthday'. I consider that, when looking back, in 2016, as part of a normal process of mental reconstruction, he was trying to divine a reason why he was at the premises. He was doing so not because he wanted to positively propound a reason or even felt it necessary, but because he was specifically asked to provide a reason by Officer Hayward, if he could. I do not consider that he was drawing any sharp distinction between attending a 'party' and attending a 'barbecue'. I do not find any real significance in how the complainant, looking back, characterised the reason or purpose for his being at 101 M Road on the day he alleges he was raped by the accused.
The Crown cited, as a further matter enhancing the complainant's reliability, the exchange during cross-examination when it was put to him that he was fabricating the allegations because to do so, he thought this might assist him to avoid the care of his mother. I considered that this suggestion backfired on the accused since, as the Crown reminded me, at least initially, the complainant was very reluctant to say anything to TW and his father. This self-imposed restraint, lasting many years, was inconsistent with a desire to act in a way that might add to his further separation from DJ.
I also consider that another indication of the complainant's reliability was his changed behaviour, which was identified by both TW and CW after he had returned to those parents after an event that had occurred when the complainant and BAW were under the care of DJ. CW recalled that this occurred in late 2009. This was the evidence of the complainant appearing uncharacteristically standoffish, defensive or lacking in demonstrable affection, in comparison with his behaviour prior to this event. I consider that this account of the complainant's parents about the complainant's changed behaviour was consistent with what the complainant said had been perpetrated upon him at this time.
As to other matters relied upon to cast doubt upon the complainant's reliability, I accept that some of these were not the sort of matters I would reasonably expect a child to recall, such as whether he was 'introduced' to 'Damien' that night or previously. On the aspect of introduction, the complainant's evidence that he had met the accused on the night of the barbecue, but was previously aware of "Damien", was supported by DJ and BAW.
The circumstance that some of the evidence the complainant may not have been supported by BAW, or DJ, when he said he ran part of the way home after the assault, or, later thought that he saw and heard the accused come to his place at 58 M Road, after the barbecue, does not mean it is unreliable. For reasons to be elaborated upon further, I considered the complainant was generally more reliable than DJ and BAW. The evidence of his running some of the way home is not, to my mind, inherently implausible. Further, if the complainant's account of what "Damien" did to him was right, there may have been several reasons why Damien would wish to see or speak to the complainant again later that night and thereafter travel to 58 M Road, to see his "friend", DJ, who lived not far away. It is one thing to prefer the evidence of others on the probabilities but it is another to reason from a preference for other witnesses' recollections of what (to them) was an innocuous event to a broader conclusion of unreliability. The mere divergence of his account from DJ (or BAW) does not show up any lack of reliability. Both of these events were, on the complainant's evidence, matters occurring after the assaults had taken place at a time when, if his evidence was to be believed, he was under significant trauma in trying to understand what had been done to him and why. As to the latter aspect, I consider his evidence was consistent with BAW's evidence of the complainant asking him the next morning whether it was he (BAW) who had come into the room during the evening, after they had returned home and when BAW said no, the complainant quipped that he thought it might have been Damien. I infer that Damien was very much on the complainant's mind when he returned home to 58 M Road. As to the former aspect, I think that the complainant was exaggerating when he said that he ran home and that he was trying to convey, somewhat loosely, to Officer Hayward that, after what occurred, he was intent on getting home very quickly.
I do not consider that his reliability was shaken in his description of being dragged into another room, and his reactions, or perhaps more accurately, failures to react, ascribed to him on behalf of the accused. I accept his evidence that either by reason of physical incapacity or the terror of the moment, or more likely both, he was not able to effectively complain to anyone in the home about his being taken by Damien. He was a 7 year old boy who, on his account, was being physically taken hold of, by the neck, by a 21 year old man. He gave unchallenged evidence that most of the attendees were out on the driveway in the front of the house and that the music was loud.
It is not fair to say that his evidence about Damien placing his hand around his mouth during the alleged assaults was recent invention. As I said earlier, in the way that he gave evidence to the police officer, in the form of an interview, I did not see any question which inevitably or even naturally would have elicited this evidence. At Q508-511 of the record of interview, he was asked by the police officer why he did not tell anyone what had occurred, but the context for that questioning was directed to what happened after the acts were perpetrated - not during those acts. That was different when he gave evidence at trial. Further, the evidence was consistent with the complainant's evidence that Damien had threatened to kill him, or his family, if he told anyone. Both items of evidence tended to indicate an attempt by the accused to silence him.
The circumstance that, contrary to what the complainant recalled, his biological mum (DJ) said that she did not see or hear anything of note affecting the complainant points to a difference of recollection. Based upon parts of her evidence, I am not altogether convinced that, whatever were her protestations she expressed after the event, at a time when she was well aware of her son's alleged rape by a 'friend' of hers at a premises when she was present at those premises), DJ was constantly preoccupied with the whereabouts of the complainant and BAW at the barbecue. For one thing, she said she was the "bar lady" that night. Though she renounced saying it in cross-examination, I think it is more likely than not that during the evening, she was witness to an encounter between Damien and the complainant in which the former said he might "smack" the complainant "in the mouth". I very much doubt that she would have made up this conversation when she spoke to Officer Hayward in June 2019.
In summary, both the Crown and Counsel for the accused have noted, and I find, that there were some inconsistencies in the evidence that the complainant gave, either internally within the record of interview (when the complainant was aged nearly 14), or inconsistencies between what was said in that interview and his evidence at trial (when he was aged nearly 18).
There were for example, different answers given within the same record of interview as to the sexual acts performed with the accused before a voice was heard at the door. Also within the same interview, there were differences in his evidence whether his mother, DJ was in a position to see him being led away by the accused. He said, initially, that the event occurred on 16 December, but within the same interview, later said that he was unsure. Further, although he gave evidence at trial as to the accused placing his hand over his mouth once a voice had been heard, this was not referred to in his record of interview.
But I remind myself that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is a matter for me, as the trier of the facts, to decide whether or not any differences in the complainant's account are important in assessing his truthfulness and reliability.
The complainant was cross-examined, at length, upon his records of interview. A difficulty - for which the complainant was in no way responsible - was that the nature of those interviews is that that the questioning was discursive; rather than, as is usually the case in evidence in chief in a courtroom, a straightforward chronological narrative. In the interview, questioning went back and forth between topics. Here, when he was interviewed for the first time by the police, he was almost 14 years old. It is not unexpected that when cross-examination occurs, and the cross-examiner referred the complainant to part of his interview and then another part (for the purposes of establishing inconsistency), some of the context for the questioning of one part may be obscured. This, I think, occurred when the complainant was cross-examined about his evidence of having people asking him "where he was".
Another incident of this mode of questioning is that leading questions are sometimes asked where they would have been disallowed if the evidence in chief was given in the Courtroom. Sometimes questions may not have been asked at all with the consequence that if evidence emerges only in cross-examination, the cross-examiner will complain of recent invention. This occurred, I think, when the complainant said that the accused place his hand over the complainant's mouth in response to the knock on the door when the accused was engaging in anal sex with the complainant. In this situation, it may be unfair to suggest recent invention when the questioning that occurred during the record of interview, some (but not all) of it was suggestive and would not necessarily or even naturally elicit that information.
In my view, the complainant's evidence as to what occurred was not infallible, but it was generally credible and reliable. He was not exposed as giving inherently implausible or illogical evidence as to the circumstances in which the alleged offending conduct occurred. Overall, I did not consider that his evidence of the offending conduct was seriously shaken in cross-examination. I accept him as a witness of credit.
For reasons to be elaborated further below, and to reiterate, I also consider that where there is a "contest" or conflict in the evidence between the complainant and BAW, or between the complainant and DJ, I would ordinarily be inclined to prefer the account of the complainant; in the absence of cogent reason(s) to the contrary.

[40]

The Crown submitted that DJ was an unimpressive witness. I agree. In fairness to her, she accepted that her recollections of timeframes and events going back to 2009 and 2010 were "unclear". That soon became apparent when she commenced giving her evidence. During the course of her evidence, the Crown sought and was granted leave to cross-examine her in relation to prior inconsistent statements she had made to the police; specifically in relation to the times that she arrived and left the barbecue at 101 M Road. When she was referred to her earlier statement (dated 19 September 2017) she indicated that the sequencing of the paragraphs in the statement were out of order, notwithstanding that she had read and represented to police that its contents reflected her understanding and recollection, with the result that the parts of the statement she was referred to concerned a different social function. More troublesome was her admission that she had recourse to a diary, prior to her giving evidence, when she had the opportunity to provide it to the police at the time she was giving her evidence. She did not deliver it to police because of her sense of privacy as to the content of the diary; irrespective of the possibility that it might contain important information relevant to serious criminal offences allegedly perpetrated against one of her sons. In the end, the diary was produced, but not tendered, but the conduct showed a willingness to put considerations relating to self ahead of allowing for the discovery of information which might disclose the truth of what occurred.
Then, in reference to a written statement she signed (in June 2019) in which she had previously stated that the accused and the complainant had been in each other's vicinity when she took the complainant to the bathroom, and when her evidence was that this was the first time she recalled that the complainant had met 'Damien', she explained that she did not feel the need to introduce the complainant to Damien since Damien "had a lot on his mind". I regarded that evidence as implausible; if not evasive.
In fairness to her, I note that there were occasions which, because of her recollection of certain distinctive features, she was able to render assistance to the Court as to the happening of certain events. Nevertheless, it is not an overstatement to say that there was a great deal of what she indicated to the police in her multiple police statements which she renounced under cross-examination. For much of her evidence, I considered that she was simply guessing. I would be very cautious in accepting her evidence unless corroborated or it is consistent with other objectively provable facts, or the logic of events.

[45]

'COMPLAINT' EVIDENCE

I find that in the period between when the events occurred, in 2009, and 2016, when the complainant disclosed to his father and step-mother what had happened to him, he had previously reported, in a highly general sense, to his younger brother, BAW, that he had been assaulted by Damien.
I interpret BAW's evidence in his record of interview as amounting to a disclosure of a report that he had received from the complainant. Though there were problems with the reliability of his recollections which I have alluded to, BAW referred, for example, to the complainant being the subject of penile-anal sex with 'Damien'. That report could only have been provided to him by the complainant.
Then, in 2011 and in 2016, TW gave evidence of hearing BAW refer, in oblique terms, to things that 'Damien' had done to the complainant.
I find that the complainant had given this first report to BAW the following morning, although that was in very general terms - probably so general as to be unintelligible to a boy of BAW's age. But BAW, even at this tender age, understood that the complainant was complaining that "Damien" had done something to him that was wrong. In this regard, I find that on the morning after the barbecue that the complainant did check with BAW whether BAW had come into the room, rather than Damien.
The more overt complaint, although again, it might be regarded as more of a 'report' than a 'complaint', occurred in 2016. It was this which triggered the police investigation. I accept the evidence of both TW and CW that the complainant had been observed engaging in 'improper' conduct towards BAW. When he was chastised, BAW noted that the complainant was only doing "what Damien did to him". This set the hares running, including the involvement of the Children's Helpline. When it was explained to the complainant that not long thereafter, he would have to be separated from his younger brother, he remonstrated that he was only doing to BAW "what Damien had done to him". Unsurprisingly, this provoked further inquiry by TW and his father, which resulted in the complainant's disclosure.
In this haphazard or unintended way, the complainant had reported a complaint that he had implicitly been interfered with by Damien, in a sexual way. It was not long after this that he had his first record of interview with Officer Hayward.
Having taken into account the warnings, and having regard to my observations of him as a witness and the evidence from the other witnesses, I reiterate the findings I made about the complainant's reports. In my opinion, they are consistent with the complainant being a young man who was very reluctant to make complaint until he felt that circumstances were such that he felt he should do so: his separation from his younger brother which he evidently sought to prevent. I accept that the reports were not detailed. He started to provide detail when the police became involved, but that followed shortly after the disclosure to CW and TW in 2016.
I find that the complainant's reports augment his credibility and reliability and the reports constitute some additional evidence which supports the Crown case that the accused engaged in the alleged acts.
Acceptance of the complainant's credibility and reliability, enhanced by the evidence of his reporting or complaining about what occurred, is not conclusive, let alone sufficient, in establishing the accused's guilt beyond reasonable doubt. I must consider the balance of the evidence before finally determining whether the Crown has discharged its onus of proving guilt.
I now turn to other evidence. The first is whether the accused told lies; the second is when the occasion for the alleged offending occurred and, thirdly, whether the Crown can exclude the reasonable possibility that the accused was not present on that occasion.

[46]

LIES AND CONCIOUSNESS OF GUILT

I refer to the directions I gave myself about this topic above. I find that the accused did say to Officers Hayward and Rawling in Rockhampton that he:

was not in Budgewoi in 2009; and
did not know the complainant.

As a foundational stone for a finding to be made about consciousness of guilt, I must find that the accused told deliberate lies.
I am not persuaded that when he said these things, he was telling lies.
The context is critical. The accused was provided with a copy of an arrest warrant. The warrant (Exhibit N) did not list the name of the complainant. It did not refer to Budgewoi (but rather Halekulani). It did, however, refer to the date of the offence being either 1 May or 31 December 2009 - clearly a long time ago, as of June 2017. I find that Officer Hayward mentioned both the complainant's name and Budgewoi during the course of her paraphrasing the content of the arrest warrant as part of explanation to the accused why she and Officer Rawling were there. The accused was not legally represented. He was not questioned, in the sense of "official" questioning, and he was informed that if his extradition proceeded, he would be questioned by the officers.
As to the content of the statements he made, firstly, to say that he was "not in" Budgewoi in 2009 is inherently ambiguous. Does it mean he was not living in Budgewoi? Does it mean he was not working in Budgewoi? There was evidence of Dwayne that he was working outside Budgewoi but, for some part of the year, visited his father at Budgewoi.
The Crown points to other facts which establish, objectively, that he did live in Budgewoi at some point in 2009. A computer printout was relied upon for this purpose listing his addresses. However, there was evidence by Shane that although he was at 101 M Road on occasions in 2009, he was thought to be working in Mackay.
The statements were, to reiterate, made about a circumstance or circumstances occurring 6 or 7 years before. I cannot discount the possibility that, on the subject of the address, he underestimated the period he was living at 101 M Road. I note that the house was actually sold in March 2011 (Exhibit D). It is possible that the accused got his timing wrong.
As to the other statement, that he did not know the complainant, to repeat, it was Officer Hayward who mentioned his name - it did not appear in the arrest warrant.
There was evidence at the trial - which for reasons I will come to, I accept - that the accused had met and did know the complainant. There was also a vigorous contest as to when and how often the accused had met the complainant. I think it is not controversial to say that, at its highest, the Crown case was that the accused had met him twice and that the second time occurred on the date of the alleged offending. So, when the accused made the statement in 2017, he was making a statement about not meeting someone who, at most, he allegedly met twice six or seven years before.
Another aspect to this is his recollection of the complainant's name. Suppose it is accepted that he might have remembered the complainant's face or physical appearance. He might also have remembered that DJ, a friend of his 8 years before, had two (young) boys at the time. But he did not make a statement about the complainant's appearance or what DJ had said. I consider that his statement could reasonably be understood as conveying that he did not know anyone by the name of the complainant; although even there, there may be some doubt. By saying that, there may be some ambiguity: if he said he did not "know" the complainant arguably he might have intended to convey that he had not "met" the complainant, but they are not the same thing.
There was no evidence to suggest that in making either of these statements, the accused had anything to resort to other than his own recollections, unassisted by documentation.
I have no doubt that the accused was, instinctively, perhaps impulsively (and without the benefit of legal advice) attempting to positively convey the state of his recollection. But I am not satisfied, to the requisite level of proof, that by doing so, he was making statements which he actually (and not constructively) knew were false at the time he made them.
This finding means that I reject the Crown's submission that the accused told lies because he was fearful of what might occur if he told the truth.
As to the latter aspect, although it is unnecessary for me to finally consider it, it appears to me prima facie unlikely that the accused could have believed that, by making these statements, these police officers, who had travelled to Queensland for the purpose of extraditing him back to New South Wales, he might be able to throw them "off the scent" by knowingly making these false statements. If it is unlikely he held the belief, it makes it less likely that he could have intended to achieve that result. Madam Crown rhetorically asked why else would he have made the statements. But this neglects the context in which they were made. Although I had earlier determined, in my ruling on the admissibility of the statements, that the officers did not engage in "questioning" of the accused, that is an objective finding of fact. The relevant inquiry here is subjective: why the accused made the statements. I consider that it was at least possible that, in response to Officer Hayward paraphrasing the allegations, the accused - not then represented - felt impelled to respond to them, admittedly in a positive way, but doing so when unaided by anything other than his recollections.

[48]

Many social functions at 101 M Road - second half of 2009

I find that there were a range of social functions at 101 M Road in the second half of 2009. This, I note, was after the accused's mother, Loreena, had passed away.
In this regard, there were a range of witnesses who said they attended social functions in this period. I accept that the reliability of each of these witnesses may not be impeccable, but in my view, the circumstance that they all gave evidence to similar effect collectively gives weight to their evidence in this particular respect.
DJ gave evidence of many social functions at 101 M Road in this half of the year. This was corroborated by Dwayne, who recalled DJ going over there, on average, a couple of times a week. It was in this half of the year, that DJ came to be close to Garry, the owner of the property, and through whom she developed (at least) a friendship with the accused. Kylie Harman gave evidence about a pick-up in social occasions at the premises after Loreena's death. MJ and Dwayne also referred to the social occasions.
The complainant said that he thought that the barbecue - or what he understood was a 'party' - occurred in December 2009. He thought it may have been 16 December. This estimate was based upon the thought that it occurred in school holidays. This recollection was based upon a further recollection of his receiving presents - apparently from DJ - before the function. Though he naturally could not be definite about this, I regarded this evidence as probative and reinforced the likelihood of the event occurring towards the end of 2009. He said he wore shorts to a party that was intended to go into, at least, the early evening. He recalled that it was warm. MJ also thought that the weather was warm. The adults were mainly gathered in the driveway during the evening which also tends to indicate that the weather was at least mild at night-time and (presumably) warmer earlier in the afternoon.
DJ said that she thought that the barbecue followed the swim by a few days.
BAW thought, in his interview that the weather was cold. His evidence was, in many ways, something of an outlier when it came to this and other events.
I do not consider that it is necessary to be definitive as to a date. There were many social functions at 101 M Road in the second half of 2009. I think it is more likely than not that the barbecue occurred there towards the end of 2009.

[49]

IDENTIFYING THE ACCUSED AT THE BARBECUE

The Crown relied not simply upon the recollections of witnesses, but at least other things or documents to establish the likelihood of the accused being present at a barbecue at 101 M Road in 2009.
First there was the record of the accused's addresses (Exhibit O). This linked him to 101 M Road as at 2009. As the Crown submitted, there was no suggestion that any 'Damien' at the premises at 101 M Road was any Damien other than the accused.
Secondly, the complainant gave a description of the accused's physical appearance to the police in 2016 (Q&A 541-555). He was not challenged on the accuracy of that description. This included an account of what the accused was wearing. In this regard, I agree with the submission of Madam Crown that if the accused had engaged in the conduct that the complainant said he did, the description was likely to be etched in his mind.
Thirdly, whether or not there was any formal 'introduction' on the night of the barbecue, as I have indicated, notwithstanding that she later expressed doubt about it, and as I have previously stated, I consider it more likely than not that DJ did witness an encounter between the complainant and the accused outside the toilet. A feature of that encounter, as DJ conveyed it to Officer Hayward, was the complainant being 'cheeky' towards the accused. This is what prompted her recollection of the accused's 'smack you in the mouth' retort to the complainant. The circumstance that the complainant was 'cheeky', however, suggested that he was, at that time, comfortable with the accused; however long he had known him for.
Fourthly, in 2009 (to BAW) and later in 2016, to CW and TW, the complainant identified his assailant by name, as "Damien". Contrary to DJ's evidence that the kids had never met Damien, nor heard of his name before the barbecue, I consider it more likely that (as the complainant recalled) DJ had described or referred to Damien to them as being her "friend" before the barbecue, and, at least before the alleged assaults had occurred.
Fifthly, when giving his account of the assaults, the complainant said that he could see the accused through the mirror. There was no real challenge to that evidence.
Sixthly, there was evidence from DJ identifying him as being there. She recalled giving him a drink whilst performing her role as "bar lady" on the occasion of the barbecue.
Seventhly, there was evidence from MJ who the accused knew well enough to suggest that she, and DJ's kids, might take care to have something to eat.

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