R v Dunn

File Number(s): 2022/274719

Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainants

JUDGMENT

Introduction

1. Allegations of sexual offending have been made against Mr Dunn by two women: H, and her sister C. I will refer to them by their initials, meaning no disrespect to them, but to preserve their privacy. I will refer to their mother as J, and their father as V. I will refer to others by initials, including H’s friend K, either because they were children at the time and also in the event that their names inadvertently indirectly identify H or C. That includes EF, but for additional reasons. A number of suggestions were made in the evidence that he had an interest in sexually offending against K. He has now died and was not ever asked about those matters in a court case, as far as I am aware. It is unfair and unnecessary to identify him. His name is a matter of record in the evidence.

2. Mr Dunn did not give or present evidence. The matter has proceeded as a special hearing. Mr Dunn was previously found unfit to stand trial by reason of advanced dementia and was unlikely to ever be able to do so, given that dementia is a degenerative disease, for which for him at present, there is no recovery or cure.

Procedure for Special Hearings

3. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘MHCIFP Act’) sets out criminal procedures for persons affected by mental health and cognitive impairments.

4. Part 4 Division 3 of the MHCIFP Act sets out the procedures for special hearings.

5. Special hearings are to be conducted as nearly as possible to a criminal trial: s 56(1)-(2) MHCIFP Act.

6. The accused is taken to have pleaded not guilty: s 56(5)-(6) MHCIFP Act.

7. The available verdicts are either:

8. Not guilty; or

9. That on the limited evidence available, the accused committed the offence charged.

10. I am required to keep in mind that I will have to reach my verdicts based on the limited evidence available. For example, Mr Dunn was unable to give evidence and unable to give adequate instructions to his lawyers about which witnesses might be called to assist him, or as to matters on which cross-examination could be based, thus necessarily limiting that cross-examination.

Onus of Proof

9. The Crown is required to satisfy me beyond reasonable doubt that Mr Dunn committed the offences.

R v Markuleski (2001) 52 NSWLR 82 and Consideration of each Count

10. Each count is to be considered separately. I am entitled to bring different verdicts on each count if there is a logical reason for doing so. For the multiple counts involving H, I must consider how her evidence affects my consideration of the evidence going to all counts regarding H on the indictment, although that evidence might not be directly referable to that count.

Forensic Disadvantage

11. The current officer-in-charge, Ms Chinner, gave evidence as to the prejudice suffered by Mr Dunn in the case being delayed so long and in the decisions that were made not to gather certain evidence. There is no criticism of the complainants for not coming forward earlier. However, that forensic disadvantage is important to consider now, as Mr Dunn cannot properly provide instructions and has advanced dementia. I have given myself a strong forensic disadvantage direction. In particular, it includes the fact that:

12. Mr Dunn was not spoken to in 2002 despite the allegations that were made against him;

13. The investigation was suspended in December 2002;

14. EF died in 2010;

15. No inquiries were made of SG, an important complaint witness;

16. Employment records were not available;

17. Brownies’ records were not obtained; and

18. Police did not speak to H and C's father as to when Mr Dunn was employed.

The Allegations Concerning C

Count 7

12. It is alleged that Mr Dunn committed an aggravated indecent assault against C.

13. On 5 September 2002, police came to the house primarily to speak to H. At that time, C was 13.

14. Exhibit F sets out a written statement that C gave to the then investigating officer, Officer Kernahan, because C was too nervous to speak.

15. That statement relevantly reads:

“I went downstairs into the shop and Ken was working. It was when mum and dad were at Great Uncle Doug’s funeral.”

I pause there to interpolate that C and H’s parents did, on at least one occasion, leave the girls at the service station alone with Mr Dunn, a matter that was also of some relevance in H’s case. C went on:

“…He told me about how he used to feel girls’ breasts. I tried to go but he said, ‘Here, let me do it to you.’ I ran behind the lolly shelf then told him to go away, I didn’t want him near me. I then ran upstairs.”

The allegation that C much later made was that there was sexual touching on her buttocks moments beforehand.

16. After the interview in 2002, C said she spoke to her sister H, a matter to which I will return.

17. On 30 September 2002, C spoke again with Officer Kernahan. She re-read that transcript again recently, prior to giving her evidence. In that interview on 30 September 2002:

18. She agreed to tell the truth.

19. She knew that it was important not to leave anything out and remember as much as she could.

20. She confirmed her earlier written statement about what had happened and that this was in March 2000, she thought. In fact, the funeral is more likely to have occurred in March 1999. This error, however, did not detract from her evidence.

21. She confirmed in her evidence that this was correct.

22. When asked in 2002 whether “On that time, did he ever touch you at all?” She said, “I don’t think so.”

23. She was asked whether there were any other times where he “might have done something to you”. She said, “I don’t think so, I doubt it.” She was asked whether she could remember. She said, “I can't exactly remember.” She was asked if she was too embarrassed to say something. She said, “I can't remember.”

24. She was asked, “Is there anything else you want to tell me about Ken?”, a reference to Mr Dunn. She said, “No.”

25. She was asked, “Did he ever do anything to you when you were at the service station?” She said, “What do you mean?” She was asked, “Did he ever do anything at all?” She said, “No.”

26. The JIRT interview and the transcript is MFI 4.

27. C repeated in her evidence that whilst her parents were at a funeral, Mr Dunn asked to touch her breasts and she ran away.

28. She said the police had asked her to speak about any things where Mr Dunn had “tried to touch her”. She said she was very nervous and felt like she was in trouble with police and her mother.

29. When she gave evidence, C had only a vague memory of police coming to the house.

30. C was aware of the allegations being made against Mr Dunn regarding H. Consistent with H’s complaint to her, to which I will return, C said she found out somewhere between the ages of 11 and 13 about H. She said that she became aware of the matter because she had been told that people should not touch her and that something had happened, that touching is bad, and that she should tell someone if she got touched.

31. In that context, C was asked if Mr Dunn ever touched her. She responded, “I don’t think so.”

32. In evidence, that as a matter of common sense I found difficult to accept, C said that she did not realise that touching her bottom was included in the question and that Mr Dunn had already been frequently touching her bottom. She said, despite what she had been told about not letting anyone touch her, that she believed that Mr Dunn was allowed to touch her bottom and that she did not know she was allowed to tell him not to.

33. This does not explain her not mentioning it at all in 2002.

34. It was particularly difficult to accept because C said that Mr Dunn asking to touch her breasts occurred in the context where immediately beforehand, he had been touching her bottom and that there may have been only seconds between the two events. She had been asked to recall as much as she could about what had occurred and not to leave anything out.

35. C said that they were both behind the counter and Mr Dunn was working. According to her, when he asked about her breasts, he said that other girls enjoyed it and that he referred to a 14 year old girl in Sydney. She said that at that point she left.

36. It was suggested that if Mr Dunn touched her bottom at all, it was to move her out of the way. C did not agree.

37. Having initially said in 2002 that Mr Dunn only asked if he could touch her breasts, her account has escalated over time. She said in her statement dated 18 September 2024 that he “reached for her breasts”.

38. C said in evidence that he touched her on more than one occasion. There was nothing in any of her statements to that effect. Only in her third statement did she mention him touching her bottom at all.

39. In evidence that I could not accept as sufficiently accurate or honest to accept it beyond reasonable doubt, particularly given her knowledge about his alleged offending against H, she said that even as late as 2024, that she did not know that Mr Dunn touching her on the bottom in the way she described was not allowed. I did not regard that as a reasonable explanation for not mentioning it on the many occasions she was asked. She was not asked if it was allowed. She was asked if it had occurred, and on many occasions she said it had not.

40. I am not satisfied beyond reasonable doubt that the offending occurred. I find Mr Dunn not guilty in respect of count 7.

The Allegations Concerning H

The Allegations Introduction

33. H is now in her thirties. She grew up in [a small town] where her parents owned and operated a service station. The family lived in an apartment above the shop.

34. H met Mr Dunn when she was perhaps in kindergarten, aged around five. He was working for her parents in the service station as an attendant and worked behind the counter. He was at the service station multiple times a week, according to H, mostly on weekends. There are now no business records to provide an accurate account of this. It is possible that this was H’s impression, given that she was at school during the week and may have been unaware of the extent of him working during the week. In any event, I have not been able to work out precisely when Mr Dunn worked.

35. H’s evidence about when the offending commenced was not entirely consistent. However, any finding of consistency or inconsistency depended on clear evidence about the timing of the events with respect to starting school, when she was five, when she attended Brownies and the like. Her mother J said that H went to Brownies in Taree when H was about eight and not five, but she could not recall accurately either. There are now no independent records of those matters.

36. Where offending is alleged to have taken place over an extended period of time, some time ago, when H was young, and with little contemporaneous materials to assist any recollections to anchor to a particular date, it was difficult for H to give evidence about timing. In common experience, the time when things commenced is often difficult to recall, other than by reference to other events. Without records, no one’s evidence on that issue was on a solid foundation, other than by reference to the last of the alleged offending in 2001 or thereabouts, and the interviews conducted by police in 2002.

37. H recalled accurately that Mr Dunn was friendly with her parents, and that he would be invited to dinner on occasion.

38. At the time of the interview in 2002, H said that other workers were also working at the service station. Those people did not give evidence.

39. At the time of the interview by police in 2002, Mr Dunn was still working at the service station. He left shortly afterwards.

40. H drew a diagram of the service station on 14 April 2002, which is exhibit B.

41. H recalled that she had a childhood friend, who I will refer to as K. She said that K was looked after by EF, a friend of Mr Dunn. She said that EF had a pool and she believes that she met K in that context. She met K when she was about seven.

42. H said that she went to Mr Dunn’s house, although she was not sure how often. She would take food scraps for the chickens and play with the dog. C confirmed that the siblings went to his house to feed the chickens. J also agreed that the children may have visited Mr Dunn’s home but could not recall it.

Count 6

K’s Account on 4 September 2002

43. Count 6 is alleged to have occurred with H and K at Mr Dunn’s house, with Mr Dunn and EF present.

44. On 4 September 2002, K, then aged ten, told police the following information, which was recorded:

45. K had a friend H, who was a year younger with whom she played when she was staying with her grandparents at [the town], which she did from time to time.

46. EF was a friend of her family who also lived in [the town].

47. One day, between August and December 2001, EF collected K and H to take them to his house “for a swim and [they] played a game”.

48. EF told them that he had to pick up something from Mr Dunn’s. K had met Mr Dunn before at the service station.

49. H took K into a room in Mr Dunn’s house while Mr Dunn was talking to EF. K saw a drawer with condoms in it.

50. Mr Dunn walked in and did “some really disgusting things” to H.

51. According to K, H took down her own pants and laid on the floor.

52. Mr Dunn took down his pants and put a condom on his penis.

53. K did not know what they did, but H took down her pants and then, they did “some disgusting things”.

54. According to K, Mr Dunn did something to H’s vagina.

55. K said it was really disgusting, so she turned around. She said, “I didn’t watch it. I couldn’t. I felt like vomiting. It was really disgusting.” She said, “I went out because I couldn’t handle it, it was so disgusting.” She said, “I just went out. I went out of the room.”

56. K later said that when H took down her pants, Mr Dunn did not have his pants on, that H took her pants down and lay on the floor, that she laid on her back and then opened her legs. She said that H’s legs were bent kind of open.

57. According to K, Mr Dunn then went down on his knees between H’s legs and “kinda’ licked her vagina”.

58. Mr Dunn said to K, “I can't do this to you, but if you like, EF can.” EF was sitting on a chair outside.

59. K said, “No thanks,” and went out and sat in the car.

60. K was not sure how long H was in the house with Mr Dunn. She said, “I think she came out about five minutes later or something.”

61. According to K, she and H then went to look at Mr Dunn’s chickens.

62. H thought it was like “she just went along, like, like nothing happened”.

63. K said that she later asked H about it and H said, “‘Don’t even remind me,’ and she was, like, really regretted it”.

64. K gave evidence, by then in her early thirties. She was shown exhibit A, a map of the room in Ken’s house which she had drawn at the earlier time and which she signed. She could not remember drawing it. She did not remember speaking to H later (even having seen the interview in which she said she did). Indeed, she has little recollection of speaking to police about the event, only what she saw in the recording.

65. There is some corroboration of the event by way of complaint evidence, although the evidence about that is not strong. K said that she could not be confident but perhaps in 2007, K and H had a conversation about “the situation” and what had happened with Ken on that day, but K could not remember the exact conversation.

66. Under cross-examination, K said that she recalled that they “arrived at Ken’s and H took [K] inside to a room” and that Mr Dunn was outside with EF.

67. K also said that there had been no bed in the room and that the room was very empty. She recalled carpet, a drawer and a built-in cupboard.

68. K said that H opened a drawer and that she saw condoms. She did not know what a condom was at the time, although she saw that Mr Dunn put it on. It was not clear as to how K knew the word “condom” in 2002 when she was interviewed.

69. K repeated that she then looked away.

70. K had no recollection as to whether Mr Dunn’s penis was erect or not, or what he was wearing, although she said he did not fully pull his pants down, just the front was down.

71. K confirmed that she did not watch after that because she felt like vomiting, but she did not leave.

72. K recalled that H then pulled down her pants and laid on the floor. In an example of her careful approach to her evidence, K said that she did not recall what H was wearing and was not sure if her account now is a result of memory or reconstruction. It was, however, a memory in 2001 when she spoke to police.

73. K said that she believed that Mr Dunn had “done something to H’s vagina” but she did not watch. This part of the evidence was difficult to reconcile with her account of seeing Mr Dunn lick H’s vagina. However, it is best explained by watching that occur, but not watching after Mr Dunn put the condom on his penis. That necessarily means that she gave her evidence out of chronological order. H gave no evidence of this, that is to say Mr Dunn putting the condom on his penis or anything that occurred thereafter, but she did say that there were many sexual recollections that she has had that she did not put in her statement, a matter to which I will return when I deal with her evidence, and that she does not remember everything. I accept that the account of the order of events may be inaccurate. In instances of sexual abuse, memories can often come piecemeal and out of order, not only for those who suffer it directly, but by young people who observe it.

74. K said that once Mr Dunn said something to her, she left the room.

75. Having said in 2001 that Mr Dunn took the condom off and put his pants back on, K could not now recall how she knew this and it is also not irrelevant that she had thereafter spoken to H about what had happened. She said that she did not now remember Mr Dunn putting his penis back away. She did see Mr Dunn put the condom on his penis.

76. K’s next recollection is of seeing H laying on the ground on her back.

77. K said that she saw Mr Dunn on his knees and licking H’s vagina and that she left after he did something to H.

78. It is submitted on behalf of Mr Dunn that I would regard K as an uncooperative and deliberately evasive witness. I did not find that to be the case. Given the passage of time and the nature of the things referred to, it is not surprising that her recollection was piecemeal and much less remembered decades later. Given K’s now more limited recall, it is important that I look closely and consider whether I accept that K was honest and accurate when she spoke to police in 2002.

H’s Account to Police on 5 September 2002

61. H was interviewed by Officer Kernahan on 5 September 2002, the day after K was interviewed. There is no suggestion that the two collaborated in between those two interviews.

62. J went with the principal to get H from her class. H was told that she was not in trouble.

63. H was ten years old and in Year 5. Once in the principal’s office, she met with Officer Kernahan, who she had never met before and then her mother left the room. There is no doubt that H was very reticent in that interview and in those circumstances I am not surprised, given that she was taken out of class with no prior notice, and she was confronted with a police officer, a person of authority, in the principal’s office, a person she did not know and with whom it was to be expected she had no particular rapport, who asked her about intimate, embarrassing and perhaps shameful things. I have had regard to the audio and transcript of that interview, which is MFI 2.

64. H said:

65. That no one had touched her or done anything with her vagina.

66. That she had been to Mr Dunn’s house to get eggs in the morning and to drop off the chicken buckets.

67. That she had been to the house with K, that they saw the chooks and patted the dog.

68. That nothing else had happened.

69. That EF was also there.

70. That she could not remember anything.

71. That she went inside the house, to the kitchen and she thought to the toilet.

72. That she did not remember if Mr Dunn was ever inside and that EF was outside.

73. That she did not do anything inside other than go to the toilet.

74. That she may have looked at some trinkets which she described in a box on shelves.

75. That she could not remember anything else.

76. She was asked and said that she did not want to tell the officer about anything that might have happened that she did not feel safe about.

77. At that point, the officer revealed that K had told her that Mr Dunn had done something to H while she was in the house and reminded her that she was not in trouble.

78. At that point, H agreed to talk about that and got upset.

79. She said that she did not know how to describe it.

80. She said that she went into the spare room and there was a mattress on the floor.

81. She said that she and K were on the mattress.

82. She said that Mr Dunn came in.

83. She said that she did not know how to explain what Mr Dunn did.

84. She wrote on a piece of paper, “Ken massaged my vagina.”

85. She said that this was with her clothes on and that he had done this two times (once in the past).

86. She said that she thought K went outside with EF.

87. She said that there was nothing else she wanted to say.

88. She finally said that she did not go near Mr Dunn anymore because “he swears a lot and stuff”.

89. The diagrams that were shown in the interview and the diagram of Mr Dunn’s house are exhibits C and D respectively.

90. H said in her evidence that after the interview, her mother J came back in the room and that she, H, broke down and cried. She said that she was concerned about what would happen to Mr Dunn and whether he would lose his job. At that time, she felt it was a relationship which she had had for five or more years. She said that she knew she was keeping secrets to protect him, and now the secret was out. She said she did not know what trouble he would be in, but obviously the police would be involved.

91. J confirmed that after the interview, the officer called her into the room. H appeared to her mother to be very distressed. She was fairly certain that H had been crying. H sat on her lap and cuddled into her.

Complaint by H to S

69. H said that after her interview at school on 5 September 2002, she went back to class and sat down next to her friend S. She recalled saying something to her like, “Do you know where I’ve been?” and she said something along the lines of, “Ken was sexually abusing me from when I was five for that period.”

70. In cross-examination, she said she told S where she had been and why she had been there. She said that she had had an interview with police because of what “Ken had done to me for so many years”. She did not recall S’s reaction.

71. S was not called as a witness.

72. I have put that complaint evidence to one side. There is no way to assess the credibility or accuracy of the evidence without S’s evidence.

Interview between Officer Kernahan and H on 30 September 2002

73. H was again interviewed by Officer Kernahan on 30 September 2002.

74. This time, J drove her to a friend’s home because the service station was too noisy for another conversation with police.

75. Consistent with her demeanour and the answers in the first interview, H said she did not want to talk to the officer and just wanted to forget about it.

76. H said that her mother and the friend (now deceased) were in another room and that she could hear them talking, but could not make out the words. H was worried that they might overhear her answers.

77. In her interview, H gave similar answers to the first interview, but most notably, she said in answer to question 56, that Mr Dunn had licked her vagina. It was quite apparent that H did not want to talk about what had happened, but by this time, she had been able to absorb the fact that that much had been confirmed by K.

Further Evidence by H of the Event with K at Mr Dunn’s House with EF

78. In addition, in her evidence, H said that prior to the incident in the spare room at Mr Dunn’s house, Mr Dunn had told her that EF was doing things to K, something involving her breasts. She had a recollection that she had told K that Mr Dunn was licking her vagina and it feels good but that K would not let EF do it to her. H recalled a conversation with Mr Dunn that she would show K that it was good to convince K to let EF do it to her. H denied that she had made this up. She explained that she had never told anyone about this before because it was shameful, because she was actively convincing her friend K to participate in activity that she knew was wrong.

79. I accept H when she said she did not know what K had said and that she did not speak to K about what K had told police in the earlier interviews. Further, I do not think it at all likely that the two would have collaborated in the account, only for H not to want to complain about it. I am satisfied that H complained to K about it because she had been there and because it was true.

80. I accept this disclosure and the facts going to the elements of count 6 beyond reasonable doubt. It was confirmed by the eyewitness K, and the complaint about it was relatively contemporaneous. The fact of H’s denials in the interview, any differences in the order of events by either witness or other peripheral matters did not concern me, given the nature of what was witnessed by K and what was experienced by H. The evidence was supported by admissions that were made by Mr Dunn, a matter to which I will return.

Revival of the Investigation

81. H’s steps to revive the police investigation some 20 years later have the hallmarks of a person who is telling the truth. She was aware that the police investigation in 2002 had been suspended. Consistent with her age and the process at the time, this was not her decision and no one spoke to her about it. It is understandable, therefore, that she would continue to think about what had happened and why.

82. H continued to live in [the town] with her parents until she was 18. She finished Year 12 in 2009. She then attended University, studying a Bachelor of Business. She said that whilst there, she wanted to find out what had happened with the investigation. At that time, she needed $30 to access her own information. She did not pursue it.

83. She came back to it in 2021. She paid the fee because by that time, she really needed to do it and sought the Freedom of Information documents consistent, in my view, with someone who made a genuine allegation of abuse. She was provided a copy of the AVO, an event number and transcript of one interview.

84. H went through the documents. It reinforced everything that she “sort of knew and felt” at the time, particularly in respect of the fact that she was actively avoiding the questions and only giving the officer information that she knew the officer already had access to, that she knew K had disclosed. She said she knew that police knew about that and that this would satisfy police and they would leave her alone. Indeed, to some extent they did.

85. By 2021, H wanted to pursue her complaint. She ultimately spoke to Officer Chinner. They met up in April 2022 and H listened to the two 2002 interviews.

86. With an adult’s frame of reference in listening to those interviews now, H surmises that she was trying to protect Mr Dunn and was not disclosing everything because she did not want to get him in trouble.

87. Her explanations about why she lied had the flavour of reconstruction, with H trying her best to make sense as an adult, something she did as a child. Whilst I did not readily accept her explanation and put it to one side, that reasoning was of only marginal relevance. It did not result in me not accepting her other evidence. I accept that she was genuine in her attempts to make sense of her actions all those years before.

88. H accepted that when she was interviewed on 5 and 30 September 2002, she did not tell the officer-in-charge everything. Indeed, she accepted that she lied when she said there were no other incidents. The relevant question is whether she is accurate and honest in her evidence in this trial.

89. As H now recalls it, things of a sexual nature happened between she and Mr Dunn from when she was about five until she was ten, just prior to the first interview with police. She described the offending as regular, that it “would have happened on a weekly, maybe multiple times a week basis”. The words “would have happened” are an indicator to me that to some extent, she may be reconstructing, and it is a matter to which I will return. She cites the first offending when she was five as she believed that she had started going to school when these things happened.

90. H described the offending in multiple places.

Count 1

91. H recalled a time, she did not recall when, where Mr Dunn put his hand down her pyjama top and felt her breasts as she was letting him out of the house after Sunday dinner. She said that this occurred just before the interview, so she would have been around ten. She also recalled some conversation about her breasts growing, consistent with her stated age. She recalled that she was frozen to the spot, although she had been used to his conduct.

92. In cross-examination, H accepted that anyone coming near could see what was occurring. In her JIRT interview, she explained she was angry with him for doing this, although she also claimed a relationship where she loved the attention.

93. Given the brazen nature of the conduct and the high risk that they might be caught, where her parents were so near and likely knew she was letting him out after dinner in her pyjamas, I did not regard her anger with him, while still considering there to be some kind of a relationship, as being inconsistent. It was consistent with the sneaking around that Mr Dunn admitted to, to which I will come.

Count 2

94. H said that she was sitting on the bottom of the staircase between the station and the residence, and that Mr Dunn was standing in front of her. He removed his penis from his pants and then said something like, “Do you want to touch it? Why don’t you touch it?” She could not now remember how old she was or if it was before or after the incident that is count 1.

95. In perhaps a reconstruction of events, but one that is likely to be quite reliable, H said that it had occurred on a weekend because the family were all upstairs. This is consistent with her evidence and the evidence of J that from time to time, Mr Dunn would come for family dinners if he worked on a Sunday. H said that she believed that Mr Dunn was working that day.

96. H could not recall saying anything or Mr Dunn saying anything else. She said that she touched his penis with her hand for a split second. She was rewarded for that. Mr Dunn gave her a Mars or a Snickers bar from the shop.

97. H agreed that whilst there was a gate at the top of the stairs, anyone coming from the top of the stairs could see what was happening. She accepted that she could not recall the peripheral details or how it came to be that he had given her the chocolate. I did not find that lack of detail on peripheral matters to detract from her account in this or any of the other counts. Indeed, a detailed account of peripheral matters, given her age then and the effluxion of time since, might just as readily be characterised as a false account.

98. It was suggested it did not happen. H rejected that contention.

Count 3

99. H recalled that she had been at home, sick from school, and was in the loungeroom watching TV. Mr Dunn was working downstairs.

100. H did not know when this occurred but said it was not the first time that Mr Dunn had performed cunnilingus upon her. She said that no one else was upstairs. She believed that her parents were downstairs working in the service station.

101. Initially, H had said that Mr Dunn came up and asked her to lie on the dining room table. In cross-examination, she said that she believed he asked her to get on the table. She was now not 100% sure. In frank evidence, she accepted that it was possible that he did not ask her to do that but merely that she did it.

102. H was wearing a nightie. She said that Mr Dunn removed her underwear and licked her vagina for “minutes not seconds”. She said she was 100% sure about it, just not sure how it came about.

103. H recalled lying on the table, with the skirt of her nightie up a bit and her underwear being removed. She said by this time she had, to use her words, “leaned into it”. Mr Dunn had said things in the past like, “It feels good, doesn’t it?” She recalled that it did feel good, but that she also knew that it was wrong and that she was doing something naughty, and so felt guilty. She had every opportunity to say, for example, that she felt scared and did it accordingly. The fact that she accepted that it had felt good and that she felt conflicted, in my view, is the hallmark of an honest and accurate witness.

104. H did not recall anything being said or how it ended.

105. Given the brazen nature of the offending, it was submitted on behalf of Mr Dunn that this was the least credible allegation against Mr Dunn. I will return to that matter.

Count 4

106. H described a time when she was in the “spare room”, lying on the bed reading a book. She said that Mr Dunn came in and removed her shorts and underwear and licked her vagina. She later said she did not know what she was wearing but that he took her underwear off.

107. She was lying on her back on the bed, with her head on a pillow. He was positioned standing, she thought. In a matter that she accepted might involve a degree of reconstruction because the bed was tall and where she did not have a specific memory of it, she had no recollection of him being on the bed.

108. She did not recall either of them saying anything.

109. H did not know what day it occurred or what book she had been reading. She thought that her parents and customers would have been around, but did not recall seeing anyone. She recalled that it took minutes and that it may have ended with the sound of someone coming and that she said they needed to stop. She accepted that this peripheral information was not a particular recollection but involved some kind of reconstructing. She did not know where her parents were.

Count 5

110. H said that she recalled that she would go to Mr Dunn’s house to feed the chickens, with some of her siblings. In another example of her care in giving her evidence, she said that there may have also been a dog there, but she was not sure.

111. On a matter where she was inconsistent, H said that she was smaller, aged under seven. However, in cross-examination she said she did not know how old she was, only that it was before she went with K, that is a reference to count 6, but that she was not 100% sure. On the question of timing, I am satisfied only that it occurred at some time prior to her talking to police on the first occasion.

112. H recalled that her siblings were in the backyard and that, for reasons she cannot remember, she and Mr Dunn went inside into a bedroom.

113. Mr Dunn lay on his back on the bed, removed her shorts and underwear, and she kneeled on either side of his face. He licked her vagina for some minutes. H clarified in cross-examination that Mr Dunn had asked her to take her shorts and underwear off. She said it lasted “at least minutes” and that she enjoyed the sensation. He did not ask her to do anything else.

114. She said that this was not the same room as the one with the mattress on the floor that she described with K. Again, in careful evidence, she said that she thought that the bed was against a wall with a window, but that was all she remembered of that room. She did not recall how it stopped or any conversation.

115. H said she returned to her siblings, but does not otherwise recall what happened. In cross-examination, it became apparent that her evidence about returning to her siblings was more likely to have been a reconstruction rather than a true memory. I did not think that she was trying to deceive me into thinking it was a memory. Indeed, on many occasions, to my observation, H was obviously trying to restrict herself to evidence of recollections, or to at least make it clear when she had been reconstructing. It was, in my view, likely a genuine and logical reconstruction based on what she genuinely believes was likely to have occurred. I think it more likely than not that she later rejoined her siblings.

116. As a matter of context, H recalled that she had been rewarded on occasions when she did something sexual, not necessarily related to the event but where she could access chocolate or maybe gold or $2 coins as a general reward for what was happening. She knew that Mr Dunn had put them there for her, but cannot remember how that came about. She recalled vague conversations between them about chocolates for her to have. Often, she would find chocolate or money for her. That was another circumstance in which she could have given evidence that she was directly and specifically rewarded and did not; a hallmark of the honesty and accuracy of her evidence.

Context Evidence

117. As a matter of context, H described an occasion where Mr Dunn was standing near the morning tea table. She did not recall how it came about but Mr Dunn pointed out a substance on the table and mentioned that he had put sperm or cum there. She said it was a white milky substance. She does not recall exactly what was said or when this occurred.

118. H did not recall seeing Mr Dunn masturbate or what he was wearing. She could not recall if his pants were up or down. She had no sense of how old she was, other than that she knew what semen was as opposed to what the liquid on the table was. It was, she said, her first experience with semen.

119. H accepted that it was possible to see the table from the bottom of the stairs, or coming out of the laundry, or out of any of the rooms, or using the hallway.

120. It was suggested on his behalf that it was not semen, and that Mr Dunn may have been joking and that he was a notorious joker. Indeed, H told police that he was funny. It was suggested that it may have been an engagement in playful conversation.

121. The questions in cross-examination suggested that Mr Dunn had pointed out the substance, but that he was joking and that it was not semen. I accept that that may have been so.

122. However, even if it was so, given that H did not see him masturbate and did not recall him doing anything odd prior to the liquid being pointed out to her, it provides powerful contextual evidence of Mr Dunn engaging in sexualised banter with H, showing a clear willingness to do so.

Complaint Evidence

123. H’s evidence is supported by complaint evidence. I have given myself the complaint direction in that regard. I regard the evidence as supporting both the contention that the offending occurred and in support of H’s credibility generally, with some reservations, to which I will now come.

Complaint to C

124. H said that she had a conversation with C in respect of a pen with a battery that H used to masturbate. The conversation about Mr Dunn was prompted when C, according to H, caught H with the “wiggle” pen.

125. H said that she told C that Mr Dunn was doing things of a sexual nature. She was not sure if she had been specific. H asked if Mr Dunn did anything to her. C said he tried but she told him no, or stopped him from doing something.

126. H accepted that there had been nothing in her statement about this complaint to her sister, and that she had not told anyone about it, despite the fact that she had always remembered it.

127. There is some reference to the fact that there was also talk about EF. She said she did not know why she asked about that. She did, however, have a recollection that EF had done something to C and K.

128. H said that C said it was wrong and that she should say no.

129. I did not rely on this complaint as evidence supporting the offending. It was complicated and unclear, and I found it impossible to draw reliable conclusions from either witness as to who said what. Its effect on the credibility of the witnesses has been neutral.

Complaint to B

130. By the end of Year 10, when H was about 15, she had a boyfriend, B, who was 16. They went out for about three years until H was almost 20.

131. According to H, they spoke about the abuse more than once. In particular, when the two were being intimate, H would have flashbacks and they would have to stop whilst H attempted to cope.

132. H told B that Mr Dunn had “sexually abused her from when she was five until she was ten”. She said that she was not sure of the detail about what that conversation was.

133. H had not spoken to B since about 2012.

134. B confirmed that H told him about 12 months into the relationship that she had been “sexually assaulted when she was younger”. He thought it was when she was about nine or ten. He said that this was an impression or a best guess of the age that she had mentioned.

135. B said that H said she was sexually assaulted by someone working for her family at the service station, and that she had disclosed to her parents, who had contacted police. She mentioned to him that the offending had occurred on multiple occasions, including at the service station, that it included digital penetration, and that the man had been performing oral sex acts upon her.

136. B said that the topic came up again quite a number of times and that H was upset. He confirmed H’s evidence that the subject came up in moments of intimacy and that H was not comfortable with certain acts because it reminded her of the offending.

Complaint to T

137. H had been in a relationship with T when she was 21 for about three years. H told T that Mr Dunn had sexually abused her from five until ten. He was not sure of the detail.

138. They have not been in contact since 2016 or 2017.

139. The complaints by H to her previous intimate partners and particularly the flashbacks with her then-boyfriend B in moments of intimacy provide powerful corroboration of the fact of some kind of sexual offending against H by Mr Dunn. It supports H’s credibility and makes it more likely that sexual offending occurred.

Admissions by the Accused

140. I have given significant weight to the admissions made by Mr Dunn in September 2022, given the content of it and the fact that it was recorded, leaving no room for doubt about what was said. H’s account is corroborated by the admissions made by Mr Dunn to H when she called him on 2 September 2022.

141. I have taken into account the recording of the pretext call, which is exhibit E.

142. I accept that by this time, Mr Dunn had started to suffer from dementia. At that stage, it was limited to his lack of recollection of some things. He said to H that he was still working, but that he had started to forget things. He said, “I’ll try and remember names and things like that.” Importantly, he said, “I can remember back” but “I can't remember… what I did last week or the week before,” making it clear that whilst his short-term memory was affected, his long-term memory was still intact. He remembered accurately, for example, H’s brother and sister’s name and that they played cricket.

143. There is no suggestion that he was misremembering things that had occurred so as to place any doubt on the admissions that he made.

144. There was no evidence at the time of any disordered thinking. His statements are entirely consistent with him having sexually offended against H. It could not, in my view, be interpreted any other way.

145. The admissions of ongoing sexual offending from when H was young are clear and are as follows:

146. When H asked about something that happened when she was younger, and whether he had anything to say, he said, “It’s just something that goes back to my childhood, I think,” … “I’m sure it does because I was molested by my father, I was only five,” and later, “I can't help you in any other way, sorry.”

147. H asked, “So you're sorry for what you did to me?” Mr Dunn responded, “Of course, yes, yes.”

148. H said, “You did take a fair bit of my first experiences away from me.” Mr Dunn responded, “Yeah, yeah, yeah, well, and I’m sorry, I’m really so, so…” At that point H cut in.

149. H said, “I would like to know what you're sorry for.” Mr Dunn replied, “Well, for what we did… Sneaking around, doing things”

150. H stated, “…It’s been a long time and it’s been, as you would know, it’s very traumatising.” Mr Dunn responded, “Of course, and it has actually been on my mind for a long, long time. Still is. Still is” … “You know I can't apologise enough” … “That would have been haunting you for all that time” … “It doesn’t go away, does it?”

151. H said, “Unlike you, I won't victimise anyone else.” Mr Dunn responded, “No, definitely not, no.”

152. H said, “Gotta make sure that that doesn’t continue to be a cycle.” Mr Dunn said, “Yeah, yeah… Well, I hope not. I know I won't, no way. I don’t look at anyone twice anymore. I've got a lovely lady and she’s just turned 70 herself.”

153. Later Mr Dunn said, “I don’t think you’ll ever recover and I know I shouldn’t be one and both should from my father and from you. Yeah.”

154. It has been suggested on behalf of Mr Dunn that when H denied the offending to police in 2002 and later only accepted the event including K, that she was telling the truth, and that the other events did not occur. This has to be seen in light of the admissions made by Mr Dunn. Where I am satisfied that some sexual offending other than in respect of K did occur, it compels the conclusion that H was not telling the truth when she denied the offending. She has given her explanations for doing so. Whatever the motivations, there is no doubt that she did not tell the truth when she made those denials to the police officer.

155. H’s denials did not cause me to doubt her allegations in circumstances where, as to her first police interview, she candidly said she does not know either way whether she had an intention to be truthful with police when asked. She was taken from her classroom and sat in the principal’s office without any notice. She was by then ten or eleven, and she thought it was about her menstrual cycle. I accept that she did not have an initial intention of being dishonest but was confronted with confronting things. She candidly accepted that she lied about Mr Dunn.

156. That occurred in circumstances where her parents were now involved and her close friend had disclosed that secret information without her knowing. In short, she was caught out and lied in those circumstances. That is not to suggest in any way that she did anything wrong. She believed what was happening sexually with Mr Dunn was wrong and so she lied. Her beliefs about knowing it was wrong arose from the idea at the time that there ought be no sex before marriage and that she ought not let anyone touch her private parts. She was, understandably, scared of being in trouble and particularly of getting Mr Dunn in trouble. Assurances by the police officer and her mother that she was not in trouble in the circumstances I have described, undoubtedly provided little comfort. H’s evidence on this topic was affected by her reconstruction as an adult and examining her conscience years later as to why she might have lied. She said:

“I remember being ten, knew it was wrong, somebody asked about it and I said no. In general, to protect the situation, me not getting in trouble, Ken not getting in trouble. It was entirely possible that I lied because I was scared that I would get in trouble and not Ken.”

149. Her statements make it entirely possible that she was reconstructing in her evidence about her motivation. There is no doubt that she felt challenged and conflicted when she spoke to police. So much is clear by her reticence to say more than had been disclosed by K and only after some prompting. However, what is important is a determination as to whether or not she was lying then or is being inaccurate now. I am confident that it is the former, as she asserts in her evidence, particularly in light of the pretext call. It also beggars belief that the episode including K would have arisen without context and without grooming. By the time of the offending involving K, the cunnilingus performed had become entirely normalised, such that she would be comfortable trying to introduce somebody else into that behaviour and it was at a time when Mr Dunn was able to act with impunity.

Other Contextual Evidence

150. H’s recollection now, many years later, is that the acts occurred almost every week, sometimes more often, between the age of five and shortly before the interview. She was asked if there were weeks where it did not happen. She said she could not accurately answer that. H readily conceded that there were other circumstances that she did recall that were not included in her statement because of the nature of the entire situation. She said:

“Another location I recall of a sexual incident was at EF’s house and I chose not to tell police about that.”

151. It is clear that there are incidents that H no longer has specific or accurate memories of, such as are required in a criminal trial, that there are incidents where she cannot remember the details, that there are incidents where she chose not to include them in statements and incidents that she did not want to share with police, and that there are some incidents that she did not wish to and chose not to recall.

152. With a candour that I found to be entirely credible, she explained the overwhelming nature of remembering and recalling, in trying to recall what she remembered and in being careful not to confuse circumstances and to be clear. She said she had every intention in her statement to describe as much as she could. However, when a vivid memory of something happening occurred, she would not necessarily put it into a statement. She explained:

“If I was to attempt to include every memory I could, we would never go to trial. That’s the nature of the entire situation. I am always going to be triggered.”

153. Accordingly, she has been careful not to consciously bring some matters to mind and to explain them. In the way she described it, I did not form the view that it detracted from the credibility of the matters she did give evidence about and indeed, it made me only more willing to accept her evidence on those matters as honest and accurate.

Limited Opportunity

154. I have taken into account the submissions made on behalf of Mr Dunn as to the unlikelihood that the events could have taken place and be undetected by H’s parents or siblings where Mr Dunn was working with them in the service station, where others were present and where the family, including siblings, lived above the shop. In particular, I have taken into account H’s evidence as follows:

155. That on school days, her father was there before and after Mr Dunn arrived and left. H’s mother and father were both busy working in the NRMA shop, selling insurance and working in the service station and on the driveway. J also did the books.

156. That there was another mechanic and a person who worked in the office selling insurance during the week.

157. That once in primary school, the children would generally get themselves ready for school, leaving J downstairs.

158. That Mr Dunn’s role was retail in the shop and that he sometimes worked during the week and the majority on the weekends.

159. That on the weekends, the NRMA office was still open and needed to be manned for people buying maps and asking questions. The insurance office was not open.

160. That when the service station was open, someone was behind the counter most of the time and also in the NRMA office.

161. That people came into the shop to pay.

162. That someone was not always behind the counter and that they might be replenishing stock, performing NRMA work, working in the driveway or in the workshop.

163. That on the days that H went to school, she had usually left the house by, at the latest, 8.45am.

164. I have taken into account J’s evidence. She was not sure when Mr Dunn started working in the shop, but said it would have been in the late 1990s. She said that he worked on a casual basis; a lot of Sundays and also some Saturday afternoons and otherwise he worked depending on the need.

165. J confirmed that, together with she and her husband V, there was another person working in the NRMA office and a mechanic; that she did most of the bookwork, ran the NRMA office, served customers, opened and closed the service station, and cleaned and served petrol. The practice was, she said, to have someone in the shop all the time. She also confirmed that staff may have left the shop unattended to go to the back room or to the shed or elsewhere, to replenish supplies of cigarettes or drinks. She said that this could take some minutes.

166. J did not recall seeing any staff upstairs in the residence, although she said they did have access to the upstairs area. Whilst Mr Dunn was not required to go there, it was not restricted if he wanted to go up there.

167. J also confirmed that from time to time, Mr Dunn, if he was working on a Sunday, would be invited to dinner with a friend and the children. This occurred more or less, once a month.

168. J recalled that Mr Dunn would be at the service station occasionally, even when he was not working. I am mindful of the evidence given about the funeral when Mr Dunn was present and the parents were away.

169. Mindful of all of that evidence, which I have looked at very carefully, it was suggested to H that the idea that Mr Dunn would offend against H in the way she described, particularly whilst at the service station, was a very unlikely scenario. She did not agree.

170. H had a recollection of fear if she heard someone coming. She said she would hear numerous noises before someone would go to the stairs. For example, the sound of the door from the shop to the morning tea area or footsteps, and they would stop what they were doing.

171. There is no doubt that whatever occurred, it took place in close proximity to H’s parents and others as they worked downstairs. There is also no doubt, given the pretext call and the joke about the semen on the table, that some kind of offending occurred and, at the very least, a sexualised conversation was taking place at the service station.

172. It is common sense and a matter of experience of the world that ongoing abuse can occur in close proximity to others; parents and stepparents offend against children in the confines of the home, teachers offend in the classroom in the presence of other children, coaches offend in dressing rooms, all with the expectation that they are not going to be discovered, where they have groomed the child into a conspiracy of silence. That is not an extraordinary thing. That is, sadly, a common experience in cases of this kind.

173. In Bolton v R [2023] NSWCCA 211, the appellant similarly contended that the allegations must be the subject of reasonable doubt because of the inherent unlikelihood that a rational adult would risk being discovered or detected perpetrating brazen sexual acts upon a child in the vicinity of adults or another child without being able to exclude the possibility that one of them might enter the room where the acts were being committed. It was contended that there must be a reasonable doubt that the appellant would or could have been so recklessly unmindful of the consequences of being discovered that he was prepared to take that risk.

174. The Court observed, and I agree:

“The difficulty with that proposition is that common experience, including the experience of this Court, is that the fear of detection in cases of child sexual assault does not universally operate as a deterrent. So much is evident from the remarks such as those made by then McCallum JA in VP v R [2021] NSWCCA 11 at para 79 where she said,”

and I respectfully wholeheartedly agree,

“The proposition that the applicant could have silently touched and kissed the complainant in the way she describes as they lay on the floor next to the mattress without being observed by the other girls on the mattress does not cause me to entertain any doubt as to the applicant’s guilt on those counts. Experience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending.”

166. VP was cited with approval more recently in RE v R [2024] NSWCCA 180.

167. The question of apparent implausibility was also addressed by then Beech-Jones CJ at CL in Sita v R [2022] NSWCCA 90.

168. In that case, as with this one, the premise of the Crown case was that the applicant was sexually attracted to H. The Court held that:

“If he was so attracted, then it does not necessarily follow that he would only satisfy that attraction without taking a risk of being detected. Such a person may enjoy taking the risk, be confident that they can avoid detection or simply be unable to overcome their attraction to children. Such a person who behaves that way may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted by another adult in the house or that a younger sibling who witnessed the assault would complain about it. A submission that the alleged conduct was so brazen that it was unlikely is in itself speculative, and speculative submissions invite speculative responses. At least in this case the potential that the applicant may have been detected when acting as alleged does not support the submission that the verdict was unreasonable,”

or to use the language of the submission in this case, that the conduct was “a very unlikely scenario”.

169. Indeed, Mr Dunn has admitted that he had been “sneaking around” with H.

170. I do have a doubt as to the extent of the offending in the circumstances described. There is a possibility that H may have now, acting honestly, but nonetheless reconstructed a belief, that the offending was, because it felt relentless, was relentless and so occurred more often than it did. However, there is no question in my mind that the offending was so regular such that H perceives it now as occurring very often. I have no doubt that it was so regular that she normalised the behaviour such that she considered herself to be in a special relationship with Mr Dunn, that it was so regular that he took from her “so many first experiences”, and that it was so regular that she in turn, attempted to cajole K into similar conduct with EF. She had, no doubt, by that time considered the cunnilingus, perpetrated by Mr Dunn, to be commonplace. Any misperception of the frequency of the offending, if it occurred, has done nothing to undermine the evidence given by her as to the elements of each offence set out in the indictment.

Findings

171. On the elements of each offence, I form the view that H’s evidence was sufficiently accurate and honest, and supported by the complaint evidence and the admissions made by Mr Dunn, that I accepted it on each count beyond reasonable doubt.

172. It follows that I am satisfied, on the limited evidence available, that Mr Dunn committed the offences charged in counts 1 to 6 on the indictment.

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Amendments

09 December 2025

Amendment to cover sheet