R v Ferguson [2024] NSWDC 331 | Case summary

District Court of NSW|2024-07-30|Before: Ms J

JUDGMENT Evidence in the Crown case Evidence of the complainant AT Evidence in the accused's case Crown application to adduce further evidence The Crown submissions The accused's submissions Crown submissions in reply Determination of the Crown's application The Crown address The accused's address Directions of law Counts 1 and 3 Elements for Counts 2 and 4 The factual issue to be determined Findings of fact Matters not in dispute Determination of the ultimate factual issue - Did each of the acts alleged by the complainant occur? Has the Crown proved the offences beyond reasonable doubt? Conclusion and verdicts

JUDGMENT

On 30 July 2024 the accused pleaded not guilty upon arraignment to the following four counts on the Indictment:- 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. This was an alleged offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. This was an alleged offence pursuant to s61J(1) of the Crimes Act 1900. 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. This was an alleged offence pursuant to s61KD(1)(a) of the Crimes Act 1900. 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

This was an alleged offence pursuant to s61J(1) of the Crimes Act 1900.

The accused had previously been tried by a jury on an Indictment containing 8 Counts in 2023. The jury was unable to reach verdicts in respect of four of those counts which comprise Counts 1 to 4 on the fresh Indictment. By agreement, the trial was to proceed by Judge alone and an order was made to pursuant to s132 of the Criminal Procedure Act 1986 that the accused be tried by Judge alone.

Evidence of the complainant AT

The complainant's evidence in the first trial was recorded and the Crown relied on the audio-visual recording of his evidence together with a record of interview he underwent on 22 October 2020 at Raymond Terrace Police Station (MFI 4). A transcript of that interview became MFI 5. The complainant told police that on the previous day he had visited his friend at his home in Raymond Terrace where the accused resided with his partner who was the complainant's friend's mother. The complainant was invited to stay the night. After dinner and during the evening both the complainant's friend and his mother had gone to bed leaving the complainant watching TV in the loungeroom, with the accused.
The Crown relied on the following evidence of what the complainant told police occurred:- A And then Ben um, um Ben asked me, "Have you had sex before?" And I said, "No.". He said, "Do you want to try it?" I was like, "Not really." Said, "All right." Then walked towards me, pulled my pants down and like, started doing weird stuff. Q48 Yeah A And then I stood up …. pulled me towards him, pulled my pants down and started sucking it. … Q66 All right. And so then he's asked you again, what did he ask you? A Um, "Have you had sex?" Q67 Yeah. A I went, "No." He said, "Do you want to try it?" Q68 O.K. And this, and you're still sitting down at this time? A Yes. Q69 Yeah. And again just sort of run through A I stood up, I just stood up. Ben come over to me and started playing with me, like, touching me inappropriately. … Q71 When you first told me about in the lounge room when he pulled your pants down A Ah hmm. Q72 Did he do something after he pulled your pants down, can you remember what you first told me? A Played with it. Q73 O.K. Anything else? A I can't remember, sorry. Q74 O.K. Did he suck your penis? A Yes. Q75 in the lounge room? A Yes, more than once. Q76 O.K. And when was that again? A In the lounge room.
The Crown relied on the evidence of the complainant that the accused had pulled his pants and touched him inappropriately by playing with his penis to constitute the offence in Count 1 on the Indictment.
The Crown relied on the complainant's evidence that the accused then sucked the complainant's penis as comprising the offence in Count 2 on the Indictment.
The Crown relied on the following evidence in respect of Counts 3 and 4:- A And then I walked to, I walked to the bathroom to go to the toilet and then he said to me, oh, no, sorry, back before that, I went to the toilet and he's, "Do you want to be man-scaped?" And I was like, "No, I don't want to" and he said, "Come into the bathroom and I'll man-scape it for you." Went to the bathroom, went to the toilet, then he's like, "Turn around." I was like, "Oh hello." He's like "Oh do you want me to shave it for you?" I was like "Not really" but Ben said "Alright, stand there, I'll shave it." I said "Alright, whatever." He did it… then I went and jumped in the shower… and then started, started jerking me off, like, and sucked it and got baby oil and put it on top of it, that was a bit weird, and then started jerking me off more and then we went out of the bathroom into the lounge room and we sat there then I went to bed and I woke up in the morning about 4 o'clock, 4 o'clock and couldn't sleep, text dad to drop the mower off, went and dropped the mower off then um, oh blank. Then Ben was asleep, Christine was awake, I told Christine what happened last night, she wasn't very happy. Ben woke up, played dumb when Christine asked, "What did you do last night?" And then I felt very bad, felt like I've let Ben down, felt like I failed him and I didn't really want to be like that, and then I went, I was sitting there in Noah's bedroom and then in um, their room they were arguing, like, "Fuck this, fuck, why did you do that for, why did you do that," this and that and I was like, oh, shit, should I leave or should I go, should I leave or not, and then I thought, oh, no. Then Ben come down the starts and then he said, "I'm sorry about last night." And that's all I remember.
The Crown relied on the complainant's evidence that the accused applied baby oil to his penis and masturbated the complainant's penis to comprise the offence in Count 3, and that he then sucked the complainant's penis as comprising the offence in Count 4 on the Indictment.
The Crown also relied on the following evidence of the complainant in respect of Counts 3 and 4:- A I sort of stood up and went to the bathroom. He's like, "No where are you going?" I said, "going to the bathroom." So I went to the bathroom and he followed me and he said, "Do you want to be man-scaped?" I was like, "Not really." And he started to do it and I jumped in the shower, jumped in the shower and um, um, he sort of like, played with very weirdly, weirdly, weirdly. Q70 Yeah A And then he sort of like, sucked it and then I walked out to my, went to the bedroom, like, to the lounge room and then, and then…yeah.
The complainant was asked as follows:- Q98 All right. And after that, tell me again what's happened. A I jumped in the shower and he sort of like, followed me and like, not followed me, like, hopped in, not hopped in the shower but hopped next to it sort of like jerking off with baby oil and sort of sucked it and walked out. I was like, O.K. And I walked out and wiped myself, like dried myself up and walked out and then… um, went to the lounge room and just sat there, watched TV. I said "I'm going to bed," and he's like, "No, where are you going?" I said, "I'm going to my bed." Went to bed, woke up in the morning and that's all I remember.
In respect of both Count 2 and Count 4, the allegations that the accused fellated the complainant, the complainant told police that on each occasion the accused was kneeling in front of him. In respect of Count 2 the complainant told police that the accused had placed his hands on the complainant's butt and pulled the complainant towards him whilst he was kneeling. In respect of Count 4, the allegation that the accused fellated the complainant in the shower the complainant also told police that the accused was "on the kneeling position". On that occasion he described to police the accused sucking his penis five times during which "he went backwards and forwards."
The complainant gave the following evidence about that allegation:- Q121 O.K. Did he say anything? A He said, "Shh. It'll be all right." Q122 And what, what did you think when he's told you that? A What did I think? Q123 Yeah. A Very, very weirded out. It was a little bit weird. It's not weird. I said, "This is a bit weird." He said, "It's not weird." I said, I feel very uncomfortable. He's like, "Don't be uncomfortable, it's all good…" Q124 O.K. A I was a bit weirded out.
When asked by police how it made him feel the complainant told police:- A "Very, very uncomfortable, very off-putting, not very, not feel, not myself. Yeah, very scared of him now. Very upset. Q Did you want him to do that to you? A No."
The Crown also relied on evidence that the complainant disclosed the sexual assaults to his parents. The complainant's father KT gave evidence that on 22 October 2020 he went to pick the complainant up from the caravan park to take him to Raymond Terrace for tea. Before they had anything to eat they had a conversation when the complainant started bursting into tears. He gave the following evidence:- Q. What did AT say had happened at Noah's place? I need you to, as best you can, tell us the words that your son said to you. A. He told me that Ben had sucked him off and shaved him. I said - I just, yeah, couldn't believe what he was telling me. Q. Do you remember if AT said anything else at that point? A. He said that Ben had been drinking a lot, and I can't really recall exactly what else. I sort of - we ended up at the police station pretty quick I think.
After refreshing his memory KT gave evidence that the complainant told him that the accused had asked the complainant the night before, "Have you had sex before?". He then gave the following evidence:- Q. KT, you told us yesterday about AT telling you on the night of 22 October. Before you went to the police station, he told you that Ben had sucked him off and shaved him. A. Yes. Q. You're able to recall him telling you anything else? Don't refer to the statement as yet, but are you able to tell us anything else AT said to you, if at all? A. He - he pulled him off or something, yeah. Q. He pulled him off. A. Yeah. Q. Can you remember the words that AT used? A. "He pulled me off."
The complainant's mother, GT gave evidence confirming that she had received the text messages from the complainant outlined in Exhibit D. He sent a text to her at 1:06 a.m. on 22 October 2020 saying "I should NOT stayed at Noah's". GT confirmed that the complainant had autism and an intellectual disability and in 2020 he was in the special education class in year 12 at school. GT gave evidence that she had a telephone conversation with the complainant on 22 October in which he asked her to come down to the caravan park at Heatherbrae where he lived as he needed to talk to her. He told her that something had happened with Ben. He also gave her the name of Detective Delforce. GT drove to the Raymond Terrace Police Station and spoke to Detective Delforce and then drove to the caravan park. She gave the following evidence:- Q. Tell us about when you got to the caravan park. Where was AT? A. I walked through the door, and I think KT was sitting down and AT was sitting up, and he looked like he was about to burst into tears, and I walked towards him and gave him a hug, and he sort of broke down. Q. He broke down. A. Yep. Q. Did you have any conversation with AT there at the caravan? A. Yes. Q. Tell us, as best you can remember, what was said by AT, and what was said by anyone else that was there in that conversation. A. As I said, without the statement - just trying to remember the order of it, but basically that he'd been manscaped, that Ben had shaved him around his genital area and his penis, that he'd pulled his pants down, sucked on his penis, had masturbated AT, had watched him - AT had had a shower. I don't know if that's in the statement, but - but had a shower, and things had happened in the bathroom and out in the loungeroom. Q. Who's pants were pulled down? You said his pants were-- A. AT's. Q. AT's. Was anything said by AT to you in that conversation there at the caravan park about anything that Ben may have said to him? A. He told him that as it was happening Ben had said to, "Shh," and that's been a reoccurring-- Q. I'm asking you about the conversation on that night, okay. A. Yes. That Ben had said, "Shh." Q. Do you recall if AT told you of Ben saying anything else, any other conversation that they had? A. I can't recall. I think he'd asked him about - sorry, I think he'd asked him about whether AT had ever had a girlfriend or liked girls, whether he'd ever had sex. Yeah, he talked to AT about - about men, like keeping himself tidy down there, manscaping. Q. Did AT say to you in that conversation where it was that Ben had done these things to him, where abouts it was? A. Some of them were out in the loungeroom, I believe, and others were in the bathroom in the shower. Q. Do you remember what you said to AT after he told you those things? A. Something to the effect of that - that if that's what's happened, that he can't let Ben get away with it, and that we should go to the police station. Q. When you said that to AT, did he say anything in response? A. Him and KT agreed - they'd already said that they'd been to the police station, as that's why I'd been told Matt's name before that, so we then went to the police station.
GT gave further evidence that the complainant told her that he had told Christine Shankley what had happened that morning. She gave the following evidence:- Q. GT, is it the case that also in the conversation that you had with AT at the caravan park, that you asked him why he didn't immediately call you or his father? A. Yes. Q. When you asked him that, did he respond? A. Yeah, he said that he didn't want to wake us and with his father he didn't - he was concerned that if his father knew that his father would have gone straight to the house - to Ben's house and, yeah, probably would have - something would have happened. Q. He was worried about his father's reaction? A. Yeah, he was worried about - his reaction, yeah, and probably my reaction too because it would have been the same.
GT identified the text messages forwarded by the complainant to her in the early hours of the morning of 22 October 2020. They read as follows:- "I should have NOT stayed at Noah's" - sent at 1:06 a.m., "I can't sleep" - sent at 1:07 a.m. and later that day "Mum, I think you need to come down to my place so we can talk in private. Not good" - sent at 20:03 hours "Like ASAP" - sent at 20:03 hours
Also in the Crown case was Exhibit K, an agreed fact that the complainant had a cognitive impairment as at 22 October 2020, namely that prior to 2016 he had been diagnosed with autistic spectrum disorder and in 2016 he was further diagnosed with a mild-intellectual disability, and that those conditions resulted in him requiring supervision or social "habilitation" in connection with daily life activities. Prior to 2016 the complainant was diagnosed with a generalised anxiety disorder.
Exhibit L was the transcript of evidence given by the accused's partner Christine Shankley at the previous trial on 10 and 11 March 2022. Ms Shankley gave evidence of the friendship between Noah and the complainant who had met at high school and were both special needs students, Noah having been diagnosed with autism, a mild intellectual disability and ADHD. Ms Shankley gave evidence confirming that the complainant had come to her home on the afternoon of 21 October 2020 to mow the lawn and had stayed the night. Noah had gone to bed at approximately 9 p.m. and she had gone to bed a little later at possibility 9:30 p.m. Before she went to bed, Ms Shankley gave evidence that the complainant was in the entertainment room with the accused and herself. She gave evidence that the accused had been drinking a couple of "Jack Daniels that evening".
Ms Shankley gave evidence that the next morning she was outside the home having a cigarette when the complainant joined her. She gave the following evidence:- Q. What else did he say, if anything? A. We had a general conversation for approximately five minutes, it wasn't anything alarming, and then he had said to me that - Q. I'll stop you there. When you say a general conversation, was it about something other than Ben? A. It was I asked what the boys had got up to that morning, what they were watching on YouTube, whether they'd played Xbox, that kind of stuff, just general conversation. Q. Did he tell you anything else after that five minutes? A. He did say that Ben had sucked him off and that Ben had manscaped him from memory; and taught him how to - or showed him how to masturbate or something alone those lines. Q. Did he say anything else? A. Not that I can recall, going back from memory to that time.
Having refreshed her memory from a statement she made to police on 28 October 2020 Ms Shankley gave the following evidence:- Q. He said to you that they; that is, he and Ben, had been talking about or watching pornography? A. Yes. Q. You say that AT told you he was a bit confused about his sexuality, and whether he liked boys or girls, and spoken with Ben about that topic? A. Yes. Q. You told Detective Castle that you reassured him at this point and said it was okay either way? A. Yes. Q. AT said to you, "He showed me how to masturbate." A. Yes.
Ms Shankley gave the following evidence:- Q. … In that statement that you made on 28 October, you said - and I'm reading from paragraph 6 - "AT went into more detail and he told me something that really shocked me and made me stop." And this is when you're having that - AT had a conversation with you when you went outside to have a cigarette. A. Yes. Q. On the morning of 22 October. A. Yes. Q. Okay. "He told me they had been talking about watching porn." You were unsure of "talking about" or "watching porn". You were unsure of which. A. Yes. Q. Whether it was watching or talking about. "AT told me that he was a bit confused about his sexuality and whether he liked boys or girls." And he told you that he had spoken with Ben about that topic. You reassured him at that point and said it was okay either way. A. Yes. Q. You then said that, "AT said something like 'he showed me how to masturbate'". A. Yes. Q. You couldn't remember how you responded or if you did respond. A. No, I don't recall. Q. He then said, according to your memory - that's AT - "I got it" which you took to mean his penis, "I got it and Ben told me to put it away because it's inappropriate." A. Yes. … Q. In the statement you said what AT said to you was, "I got it" and you took that to mean his penis. A. Yes. Q. Getting it out? A. Yes. Q. And Ben told him to put it away because it's inappropriate. You also said that AT explained that he didn't know hot to masturbate or what to use, and he told you that Ben had told him to use baby oil as lubrication. A. Yes. Q. You recall that the next thing really took you back was when AT said, "He", meaning Ben, "sucked me off". A. Yes. Q. You immediately said, "What?" A. Yes.
Ms Shankley gave further evidence that she spoke to the accused following that conversation. She gave the following evidence:- Q. And tell us about the conversation - who said what? A. To the effect, so I asked him what had happened the previous night. Q. What did he say? A. "Nothing. Why are you asking" or something along those lines. Q. What did you do then? A. From memory, I continued to ask him what had happened, and he said, "Nothing's happened. Why, what's wrong?" I got cranky with him and I believe that I did cry at some point, and he - I asked Ben to apologise to AT. Q. Did you tell Ben what AT had told you when you were having the cigarette? A. No. No. Q. Why was that? A. Because I'm an analytical person. I prefer to know both sides of the story before making my own mind up as to what had happened. I'm not a type of person to judge somebody based on one side of the story. Q. Did Ben say anything when you told him to go and apologise to AT? A. He said to me alone the lines of, "Have I said something wrong?" Q. What did you say to that? A. I said to him, "Just go and apologise. I don't know what happened. Just go and apologise." Q. Did Ben say anything to you at that point about what, if anything, had happened the previous evening, that morning? A. No, he did not.
Ms Shankley confirmed that the accused was arrested on 22 October 2020 and taken to Raymond Terrace Police Station but was not charged on that occasion. She had a further conversation when he came from the police station and gave the following evidence:- Q. Did Ben say anything to you then about what had happened between him and AT, if anything? A. He had said to me that he'd assisted AT at his request in grooming him. Q. Did he say what he had done in particular? A. That he helped him manscape at his request. Q. Did he say what manscaping was? A. I have children; I know what manscaping is. Q. Did he tell you anything else about the manscaping and how it came about? A. He just said that he had a conversation with AT on the Wednesday evening about girls. It was a common topic that all the boys would speak about in the house, being that I had a teenage son as well. Q. That's Noah. A. Yes. And the fact that personal hygiene is important. Noah had a girlfriend at the time. Q. You're saying Ben was telling you this, that he had told AT that personal hygiene was important? A. Yes. Q. Do you have baby oil in the house? A. No. Q. I withdraw that. Did you have baby oil in the house as at 21 October 2020? A. No. Q. You're sure about that? A. Yes. Q. How can you be so sure? A. I'm the one that does the grocery shopping; I purchase all the goods for our home; that's something that I personally do myself.
The Crown did put to Ms Shankley that she had told Detective Castle in her statement that the complainant was confused about his sexuality and was exposing his penis and that the accused had told him to put it away because it was inappropriate, because she was endeavouring to assist the accused in his defence, which Ms Shankley denied.
In cross-examination Ms Shankley gave the following evidence about the accused:- Q. And knowing Ben as you have for the time you have and in the time of the committed relationship that you've been in, what do you say about his honesty? A. He's honest without fault. There's no lies, no deceit. He's straightforward, honest.
Ms Shankley gave further evidence under cross-examination by the Crown that there was no machete in the house in October 2020.
Exhibit M was the transcript of evidence of Detective Senior Constable Jeffrey Castle who attended the accused's home on 22 October 2020 with Detective Delforce and following that occasion prepared the sketch plan of the home which became Exhibit A. Detective Castle also took the photographs of the home which became Exhibit B following a search of the premises. He gave evidence that during that search he found no machete in the home.
The accused denied that any of the alleged sexual misconduct occurred. In his ERISP (Ex F) the accused told police that he did shave the complainant's pubic area with the complainant's consent and in doing so he accidentally brushed the complainant's penis "just lightly" and when he did so the complainant immediately got an erection. The accused told police that the complainant had, while in the entertainment room, exposed and rubbed his own penis numerous times and the accused had repeatedly told the complainant that was inappropriate. The defence case was put to the complainant in cross-examination as follows:- Q. Ben says that he never played with himself in the entertainment that night; do you agree or disagree? A. I disagree. Q. He says he never put his hand down his pants. A. Disagree. … Q. AT, Ben says that he never asked you if you wanted to try sex. A. Disagree. Q. He says he never pulled your pants down. A. Disagree. Q. He says he never touched your penis that night? A. I definitely disagree. Q. He never sucked your penis that night? A. Disagree. Q. He never told you to come in his mouth? A. Disagree. Q. Ben says that after Noah and Christine went to bed, you asked him again if you could move into the spare room? A. Disagree. Q. A bit later you and him were talking about girls? A. Disagree. Q. And you started rubbing your penis when that happened? A. Disagree. Q. And you said to Ben, "Is it weird I've got a hard on?" Did you say that? A. No, disagree. Q. Ben says he told you that was inappropriate? A. No, disagree. … Q. Ben says that after he told you it was inappropriate you rubbing your penis you said that you had photos on your phone of naked girls 5 from your school? A. Disagree. Q. And that when you said that he told you it was unacceptable and that you could go to gaol? A. No, disagree. Q. And you said you'd rather go back to gaol at that time? A. No, no way, disagree. Q. You didn't want to go back to gaol because life in the caravan park wasn't good? A. No, there's no way I wanted to go to gaol. That's crap. Q. He says that after that you pulled your shorts down and showed him your penis a few more times? A. Disagree, definitely. Q. When you did that your penis was erect? A. I didn't do it so, no, disagree. Q. He kept telling you to put it away, it's inappropriate? A. No, disagree. Didn't do it, so disagree.
In respect of Counts 3 and 4 the complainant was cross-examined as follows:- Q. AT, Ben says he never went to the bathroom with you that night; do you agree or disagree 5 with that? A. I disagree with that. Q. I'm going to ask you some more of those sorts of questions, okay? A. All right. Q. He says after you showed him your penis you asked why you couldn't get girls to like you. A. No, disagree.
In respect of the issue of manscaping the complainant was asked as follows:- Q. He says that you then went to the bathroom and you - on your own and shaved yourself. A. Disagree. Q. And you then came back to that doorway to the entertainment room, and you pulled your pants down and showed him your penis. A. Disagree. Q. And he said, "Well, you missed half of it". A. No, disagree because I would never do that, at the doorway, nuh, disagree. Q. That's when you asked Ben if he could help you to shave down there. A. Disagree. Q. Ben had first said, no. A. Sorry, no, disagree. Q. But you kept asking him for his help? A. Disagree. Q. And that he eventually shaved you? A. Disagree. Q. And when he did shave you his hand accidentally brushed your penis? A. Disagree. Q. And he says when that happened you got an erection? A. Disagree. Q. You said, "I feel like I've lost my virginity."? A. Disagree. Q. So he told you to go and have a shower? A. Disagree.
The accused's case in respect of Counts 3 and 4 was again put to the complainant as follows:- Q. Ben says that he never put baby oil on your penis in the shower. A. Disagree. Q. He never rubbed your penis at any time in the shower. A. Disagree. Q. He never sucked your penis in the shower. A. Disagree.
In respect of the evidence of the complainant that he disclosed the sexual misconduct to Christine Shankley the following morning the complainant was asked as follows:- Q. Did you tell Christine that you were confused about your sexuality? A. No. Q. Are you sure about that? A. Definitely sure. Q. You weren't confused because you had gotten an erection when Ben accidentally touched your penis. A. No Q. Did you tell Christine that you had gotten your penis out the night before? A. I didn't do that, but no. Q. Did you tell Christine that that had happened? A. No, because it didn't happen. Ben ..(not transcribable).. didn't get it out. Q. Have you made these things up about Ben because you were actually the one that got your penis out that night? A. No way, no.
In respect of the complainant's evidence that the accused apologised, the complainant was cross-examined as follows:- Q. And did you tell Ben that you were sorry for saying-- A. No, he was saying sorry to me. Q. You say you didn't say sorry to Ben? A. Correct. I did nothing wrong. … Q. When Ben came out of the bedroom after speaking with Christine, you saw him and you were smiling. A. No, disagree. Q. You said sorry to him again. A. Disagree. Q. And he did apologise to you. A. Yeah, he did. Q. But he said he was sorry if you were uncomfortable about the manscaping. A. No, he said he was sorry for last night. I disagree with that. Q. You said, "I feel like I've done the wrong thing. I got excited when I started to tell Christine things and now she's mad at you." A. Disagree. Q. And you told Ben again that you couldn't remember what you had told Christine. A. Disagree.
It was put to the complainant that he told Detective Delforce that he was unsure if he wanted to take any action against the accused with which the complainant disagreed. He was then asked:- Q. The reason you weren't sure if you wanted any action taken against Ben is because you knew Ben hadn't done any of those things to you. A. Disagree.
In relation to the complainant's evidence that the accused told him not to tell anyone the complainant was cross-examined as follows:- Q. You said in your evidence - I don't think it was yesterday but the day before - that Ben told you not to tell anyone; do you remember that? A. That's correct. Q. When did he say that? A. After it had happened, that day. Q. That night or - A. He said that day after I told mum what happened. Q. You never said that to the police, have you? A. No. I was scared. I did say it to the police, actually yes. Q. But you never said to the police that Ben told you not to tell anyone what happened; do you agree? A. Disagree.
Finally the complainant was asked:- Q. AT, is everything you've said about Ben that night just a story? A. No. It's the truth. He knows it.

Evidence in the accused's case

In his ERISP which took place on 23 October 2020 the accused gave the following narrative of what occurred on the evening of the 21st of October 2020:- Um, and Noah's support worker was there for the afternoon as well, and they all got in and mowed the yard together and learned life skills, and so on. And, um, I asked if he wanted to give me a hand today in the shed, said to him I'd pay him for his time, just like I offered to pay him to mow the yard, he said, Nuh, he, nuh, nuh, he's done four lawns or something that day and, and, um, and then he asked, yeah, does he, can he stay. I said, Yeah, yeah, you're more than welcome, he stayed several times before. He, um, he doesn't like where he lives, he says he feels like he's in a prison all the time. Um, and I said, Well, mate, it's good for Noah too, 'cause Noah, Noah doesn't go out and socialise, and, um, yeah, he stayed, uh, they mowed the yard and that, we had dinner. And, um, Noah went to bed, Christine went to bed, he had a beer, I had had one drink, um, and we were just watching, I was watching, I was in one room and he, I think he spends most of the time in the lounge room playing the Xbox or whatnot. And then, um, he came in and started chatting with me just about general stuff, and, and, um, in relation to anything like that, he, he was rubbing his penis in the seat, and he kept going, Oh, is it weird I've got a hard-on? And I said to him, Yeah, dude, and, um, and he said, Look, and I went, No, that's inappropriate, I said, That's, that's inappropriate, and he, um, he giggled and he's like, Oh, sorry. And then he told me that when he gets drunk he takes his clothes off a lot and stands in his caravan park window and stuff like that, he's like, um, he's mentioned it a few times. And he said, Oh, why can't I get girls to look at me? And, and I said, Well, don't try so hard, we just had a general chat back and forth for a while. And then the same thing again, he's like, Oh, I don't know what he was looking at on his phone or whatever, and then he's like, he gets it out again, he said, Look, I'm hard again, I don't know why, and I said to him, That's inappropriate, put it away dude, I said, he goes, Oh, why can't I get girls to look at me? And I said to him, Well first you need to manscape, that'd be, take some priority in, some, um, take, I said, take some pride in yourself, he goes, Oh, I tried it once, and hurt myself. I said, What did you, nuh, wha, do you use hair clippers? I said to him, I'll get you some if you want, go on, if you want to, and he's like, Oh, righto, and then he came out and shows me, and I went, he had just done the centre bit, and I said, Dude, he goes, Oh, I can't see it, I can't see it. And I said to him, Dude, what do you, I said, You got to finish it, and he's like, Nuh, nuh, oh, oh, can you? And I was like, No, oh, fuck, zip, zip, and then I brushed his penis with my hand and he went vrrt, and I, and I went, I went, Whoa. And he's like, I've never been touched before, I've never been touched before, and he was so excited, and I said, Go and have a shower, I said, No, go and have a shower, and he, um, he went and had a shower. And he came back, Oh, sorry, sorry about that, sorry about that, and then continued to sit there and I ended up having to tell him to go to bed. I told him, put his clothes back on several times, put his pants on, and I said, No, put your pants on, and he's like, Oh, I'm always naked at my house, I'm always naked at my house. And I said, That's fine, I said, But it's inappropriate, and, um, he goes, Oh, I wish I could talk to my dad like this, my dad would just yell at me and go mad at me, and he goes, Oh, I've never been touched before, and I was like, Dude, just chill. He goes, I feel like I've lost my virginity, and I said, I think you're overdoing it, Bud, and he was all excited, then he's asking questions about boobs and Christine and stuff like that and just general, like, uh, about girls and, and I was just talking to him. I said, Don't try so hard, mate, just, just, it'll happen when it's ready, when it's meant to be. And then this morning he, he came in and says to me, Oh, I spoke with Christine but I think I, I, I think I said the wrong things, I think I said the wrong things. I said, What, it's all right, I'm gunna go and have a chat with her, and then she came in and said to me, Whoa, rah, rah, rah. So she's had the, she's been upset all day and I'm like, I'm sorry, like, what, I wanted to come and talk to you, I said, what, she goes, Oh, um, you need to go and apologise to him, and I went, Oh, all right, I went out and I said, You all right mate? Sorry, I said, Are you, were you uncomfortable, like, di, if you were uncomfortable, sorry, mate. And he's like, Oh, no, no, I, I was fine, and it's like, oh, he said, But, oh, I got excited when I started to tell Christine about things and, and, and, and I, I was, I was just, I got really excited. And I said, Oh, what did you say to her? And he goes, Oh, I can't remember now, I said, Oh, righto, I said, Well, you're coming over, your clothes stay on, and you're not drinking. He's like, Oh, OK, sorry, and I said, No, that's all right, I said, You, you learn by these things, you, and, um, that was it. I sent him to bed last night, and, um, I said, like, Go to bed, mate, it's, it's late. And he, he was really grateful just to be able to chat with me about girls and stuff, and, yeah. Q87 About what time was it that you sent him to bed, can you remember? A No idea. Maybe, 1.30, 1 o'clock, 1.30. Q88 Yep. A I don't, I can't, I don't remember the time. 'Cause I stopped drinking when Christine went to bed, I stopped drinking. And I was, I'm, I've, I'm, I watch Netflix a lot, I lo, I seclude myself into the, my own ..... room, surroundings, and it stops the, the anxiety and the tremors. Q89 Yep. A Um, I've got this, like, my little, my, my room and, but yeah, no, he was really excited and this morning he said, Oh, he apologised to me, and I said, It's all right, mate, like, I said, It's all good, and he's like, Oh, oh, I feel, I feel like I've done the wrong thing now…
The accused told police the following concerning the conversation he had with Christine Shankley on the morning of 22 October 2020:- Oh, Christine just said, You've got a lot of explaining to do, you need to go and apologise to, to the young fella, and I went, Oh, righto. And I went and apologised, and he said, No, he came to me, sorry. He came to me and was, said the, um, that he's sorry and he thinks he, Oh, I think I said the wrong things, I was just excited, I was, oh, I was really excited. And I said, It's all right, mate, I, I didn't think anything of it, and then when Christine's real mad at me, I was, Oh, shit, uh, talking to, telling him to manscape and I thought, just about, he's, he was inquis, he's always talking about boobs and stuff when he comes over. And I was just chatting with him… I didn't think anything of it, to be honest…
The accused was asked if there was any talk about sex during the day. He answered:- Nothing at all. I said to him, What did you say to Christine? And he went, I don't remember. I went, Oh, and then she was really mad and I thought, Uh, I felt really bad because I'm like, this is Noah's best mate, and AT says he's got no friends, he's only got Noah. And, um, I thought, oh, I honestly thought it was just about the manscape, like, giving him the, and I said to him, I kept saying, Put it away, it's inappropriate, mate. I said, I don't know how, I said to Christine, I don't know how he's not been kicked out of the caravan park, he says he stands on his front porch naked when he has a few too many beers.
The accused told police that the complainant used the downstairs bathroom to shave himself in what he described as "manscaping". As to what occurred next, he gave the following explanation:- Then he came out into the lounge, into the room he goes, Look, I was like, You don't have to show me, but if you're gunna do it, do it properly. Q145 Yep. A And that was it. Q146 OK. And that's when you, what, what did, um, what did you use to then shave? A He asked me - - - Q147 Yeah. A - - - to trim it, and I was like, Uh, I was like, Uh, it had a thing, I was like, Uh, zip, zip, oh, with the left hand but, zip zip. And then when I've, I've brushed his penis just lightly, he got ex, erect immediately, and I went, Go and have a shower, and he went and had a shower. And then he came back out and sat there and watched TV some more, and was on his phone and - - -
The accused was asked by investigating police how many times he saw the complainant's penis erect during the course of the evening. He gave the following answer:- Oh, I couldn't tell you, would've been at least three times whilst he was sitting on the cou, on the seat, over there. He was telling me about it, and then he co, gets it out, and I'm like, uh, and I told him, Put it away, put it away. And then, um, little while later when he did the, we talked more and he kept talking about sex and stuff like that, and asking questions about boobs, gir, girl's boobs, and stuff like that, and firm and soft, and that sort of stuff. And I, they're all different, we were just, we were just chatting, and he was ex, he was really excited about the conversation. And, um, yeah, that was it. By the time I, I said to him, Enough's enough, you, it's bedtime mate, like, we got to get up early and, and he was up at sparrow fart anyway. He messaged me and said, I've just taken the mower home, I'll be back, and he, he was, when I woke up he was downstairs. And he came and, um, he spoke with me straight away and then Christine went, rah, and I was like, and then he come and apologise to me about it. And I was like, That's all right, I said, And what did you, what did you say? And he's like, Oh, I can't remember, and I, That's all right, mate, me and Christine are solid, like, this is the first relationship I've had a long time, and I'm so thankful. She looks after me, she takes care of me, she's… amazing.
The accused gave a further clarifying explanation as to what occurred after the complainant went to the bathroom:- No, he went in there and, and did it. And then he came out with his shorts on, and then goes, Oh, look, and I was like, and I said, You've missed half of it, and, and then he was like, Oh, I can't, I can't reach it properly, this is what hurt myself last time. And then he asked me to clip it, and I was like, No, and I was hesitant, and, and, um, Oh, righto, and then, zip, zip, it was just two, zip, zips with my left hand, and then I brushed him just briefly, by accident. And then he's like, and that's when I went, Nuh, go and have a shower, go on. … And he went and had a shower, and then he had his shower and then he came back and sat next to me on the couch. And he was quiet for a little while, and, then he was, we talked a little bit more about other stuff and just general, just chit chat.
The accused agreed that he had asked the complainant, "Have you ever had sex?" He denied the allegations when they were put to him by police. He was asked as follows:- Q243 Yep. And then AT says that, um you've pulled his pants down in the bathroom and then manscaped him with the, uh, hair trimmer. Did that occur? A No. Q244 OK. A No. Q245 AT then says after that you've knelt down in front of him again, and then performed oral sex on him for a short time. A I'm not gay - - -
He denied masturbating the complainant in the shower. He was asked as follows:- Q264 All right. So then, um, AT says that, uh, youse have both walked out of the bathroom, and gone back into the, um, well he says the lounge room. Um, and then again you've pulled his pants down and performed oral sex on him. A No. I did not perform oral sex, I did not touch his penis, I didn't pull him off apart from brushing it when I, by accident. And then when he got excited, ag, again, I was like, Whoa, whoa, whoa, dude, this is inappropriate, I tel, I kept telling him that over and over. Q265 Yep. So just, just again, how many times, um, would he have dropped his pants? A Uh, several. I, uh, ballpark, I don't know, three or four, maybe five, um, five times, and then before, maybe, then his shower, um - - - Q266 Yep. A And then after the shower, he, uh, he was pretty good, he, he kept getting erect and I was like, No, and he kept asking me questions about, um, uh, what it's like to have sex with girls and stuff, and, Is it warm? And that sort of stuff, and I said, You'll get there, mate, like, it is what it is. I don't even watch porn.
Exhibit H was the transcript of the evidence given by the accused at the first trial commending on 14 March 2022. The accused gave evidence that he suffered a functional neurological disorder which was diagnosed in September 2018. He described as a "right-handed side movement disorder which creates tremors. I lose complete capabilities of using my right leg. I fall over, I'm fatigued, I have memory loss, migraines, severe fatigue, anxiety. There's a dozen more."
The accused gave evidence that he used a walking stick and suffered seizures from time to time.
The accused gave evidence that he never had a machete anywhere in the house and denied showing a machete to the complainant on the 21st of October 2020. The accused was asking about answers he had given in his ERISP to investigators. He gave the following evidence:- Q. Then you talked about at answer 85, you talked about events after Noah and Christine went to bed, do you remember that? A. Yes. Q. And that at one point you said, "He came in and started chatting with me about just general stuff and in relation to anything like that, he was rubbing his penis in the seat." How do you know he was rubbing his penis in the seat? A. He told me he was erect. Q. You continued, "And he kept going, 'Oh, is it weird I've got a hard-on?' And I said to him, 'Yeah, dude.' And he said, 'Look,' and I went, 'No, that's inappropriate.' I said, 'That's inappropriate.' And he giggled and he's like, 'Oh, sorry'." Do you remember saying that? A. Yes. … Q. At answer 86 you said, "I don't know what he was looking at his phone, on 10 his phone or whatever." Was there a conversation at all about what was on the phone? A. There was a conversation about what was on his phone. Q. What was that conversation? A. The conversation was that he was - he offered to show me nude photos of girls from his school that he had on his phone and we had a conversation about that it's inappropriate, disrespectful and the fact that if they're under the age of that that is child pornography and he could go to gaol for that and in which he responded was he'd rather go back to gaol then back to his cabin. And I told him - he offered to show me the girls and I said no, and I told him to delete them. Q. How was AT's demeanour when you had that conversation? A. His face dropped and he left the room to compose himself. I think he felt he was in trouble. Q. Why didn't you mention anything to the police in your interview about AT offering to show you photos of girls on his phone? A. Because I spoke to him about it and I didn't feel - I didn't want to get him in trouble. Q. You continue in answer 86, "Then he gets it out again," I take it you're meaning his penis? A. Yes, his penis. Q. "He said, 'Look, I'm hard again, I don't know why'. I said to him, 'That's inappropriate, put it away dude.' He goes, 'Why can't I get girls to look at me?' And I said to him, 'Well first you need to manscape that would be take some pride in yourself'." A. Yeah, there was a lot more to it. Q. I'm sorry? A. There was a lot more to it than that. Q. What do you mean by that? A. The conversation was quite broad over the course of 30 to 45 minutes before the manscaping was brought up.
He then gave the following evidence:- Q. And in your interview you said, "And I said to him, 'Well first you need to manscape'." A. Yeah, there was a lot more to the conversation than that. Q. What was that conversation that you say there was a lot more to? A. Initially when I realised I was arrested I had no idea why I was there and that's when it dawned on me that I was there for a sexual assault. It actually clicked at that point and I thought oh, and that's when I manscaped him and so I said, I told them straight away that yes, I manscaped him like so first, meaning that was the contact. We had a conversation about personal hygiene, BO, his clothes, if he buys his own clothes. About taking pride in himself and not just the physical things people can see including cutting his toenails and his fingernails. Whether he used product in his hair and to make sure that every time you leave the house to be happy with your own reflection in the mirror. And if you feel good about yourself, it projects a better image, feeling for yourself and the way people perceive you. And the manscaping was brought up after he had exposed himself multiple times, I said to him, "Have you ever manscaped?" And his response was yes but he'd hurt himself previously. Q. Why did you ask him if he'd ever manscaped? A. Because he'd flashed me and he asked me if his penis was big enough. And I said to him, "If you trim it sometimes makes your penis look bigger." He asked me if I'd ever seen a doodle before, another man's doodle before and I said, "Yeah, playing footy mate, we'd have a shower after the game and there'd be banter going on and towel whipping." And you know, if we'd won the game nobody pays any attention to that stuff. And he giggled and thought it was funny that a group of men would shower together but no sexual nature involved, it was after a game of football. Q. You told police that when you told AT he needed to manscape and take some priority or pride in himself, he says, "I tried it once and I hurt myself," is that right? A. Yes. He said he cut himself on the inside of his leg.
The accused gave the following evidence as to what occurred after he had given the complainant clippers and the complainant had gone to the bathroom:- Q. What happened then? A. After a short period of time he came to the doorway, to the entertainment room, he was standing on the tiles and he pulled the front of his pants down to expose his pubic region and I kind of chuckled and I said, "You've missed half of it mate, you look like Friar Tuck." He'd just trimmed the centre piece above his penis and the outside and it looked like he had big chops. And he said that that's where he'd hurt himself previously and if I'd help him. Q. What was your response? A. I said no. He stood there staring down at himself and then he asked politely, "Please Benj, can you help me with this?" I felt bad for the bloke so I fine, I was very hesitant but I just picked up the clippers, I put my right hand onto the TV stand to hold my weight and I went zip on the left or his right and then zip on his left and on zipping, when I, in the two swift motions, his penis, my hand had touched the, the back of my hand had touched his penis and he became instantly erect. And I've put the clippers down and I've said, "Enough's enough Dude, go and shower." He said that it was itchy and I said to him, "Well there's baby powder in there if you want to use that." And he went and showered. … Q. When you brushed his penis with your left hand you said that AT became immediately erect, is that right? A. Yes, that's correct. Q. Did he say anything? A. He said he felt like he'd lost his virginity, he'd never been touched before and I told him to, "Woo up buddy," and yeah, I told him, Enough's enough and go and shower."
The accused gave the following evidence as to what occurred after the complainant had showered:- Q. So, him going and having a shower. A. He came back. His hair was wet. He exposed himself again. He was quite happy with his trim. And he said - he was, like, impressed that his penis looked bigger, and I just continuously told him to put it away. It was inappropriate. We were only in the - this was all over the course of maybe an hour and ten minutes. He was in the entertainment room. Including his shower, including - I was in the entertainment room for some time after Christine went to bed as he'd come and go back and forth. But the whole conversation and the trimming, that was between the course of 11 to 11.30, 12 o'clock. I said, "Go to bed; enough's enough".
The accused gave the following evidence as to what occurred the next morning:- Q. And what happened when you woke up? A. I woke up and Christine came in, and had firm words with me, and said I needed to apologise to AT, and that I had a lot of explaining to do, and I said, "Oh", I won't use my - the language - I said, "Oh, okay". So, I went down and said, "Oh, I apologise, mate, if I made you uncomfortable with the trimming". … Q. And you said that Christine told you needed to apologise? A. Yes. Q. Did she tell you what you needed to apologise for? A. No. Q. What did you think you need to apologise-- A. That he felt uncomfortable, the same - with his emotion the night before when he was taken aback by when I spoke to him about the girls on his phone. I thought, "Oh, I made him uncomfortable". So I apologised to him. Q. Did Christine say to you that she had any conversation with AT that morning? A. I don't recall. I - she - I don't - she just said I've got a lot of explaining to do, and to apologise to him; that was it. Q. Did you ask her why? A. Yeah, but she didn't say anything. She just said to go and apologise to him.
The accused gave evidence that on the evening of 22 October 2020 he had a conversation with Christine Shankley. He gave the following evidence:- I said to her, "Do you want to talk about what AT said?" and she came and sat with me in the entertainment room, and I told her that he'd exposed himself, that I'd trimmed him. And I told her with Imogene moving home, that I didn't want him to stay when she's here. And her response was, "Oh, is that it? Is that all?" and I said, "Yeah, why? What did he say?" and she said, "Oh, he was waffling on - oh, he was waffling on. There was" - she refer - you - she referenced back to something else AT had said to us previously, waking us up one morning, and she just - yeah. She was like, "Oh, is that it?" Q. Did she at any stage in that conversation tell you specifics of what AT had said to her that morning? A. No. She still hasn't.
The accused then denied each of the allegations made by the complainant and denied ever doing anything of a sexual nature to the complainant at any time. He gave the following evidence:- Q. At any stage that night, did AT tell you that he didn't want to be manscaped? A. No. Q. Did he do or say anything to suggest to you that he might not want that to occur? A. No. He seemed quite comfortable.
In cross-examination it was put to the accused that the complainant had never apologised to him on the morning of 22 October 2020 to which he answered, "No he did apologise." When it was put to him that he was the only person masturbating that evening he answered, "I have erectile dysfunction".
He denied each of the allegations put to him by the Crown. In respect of Count 4 the accused was asked:- Q. And you knelt and sucked his penis? A. That's incorrect, I cannot kneel.
He further denied playing pornography in the entertainment room.
Tendered in the defence case were the following exhibits:- 1. Exhibit 1 was a plan of the accused's residence which was more accurate than Exhibit A. 2. Exhibit 2 were 3 pages of text messages sent by the complainant to the accused on 21 and 22 October 2020 regarding the complainant mowing the accused's lawn. At 5:38 a.m. on 22 October 2020 the complainant sent the following message:- "Morning benj, I'll be back, I'm just dropping the lawn mower off at my dads, I thought I'll do it before he went to work." 1. Exhibit 3 comprised 17 pages of text messages sent by the complainant to his mother between 11:34 a.m. on 21 October 2020 and 20:31 hours on 22 October 2020. It included a message from a real estate agent advising that the complainant's application for a rental property had been unsuccessful. 2. Exhibit 4 was an agreed fact pursuant to s191 of the Evidence Act 1995 that as of 21 October 2020, the accused had not been charged with or found guilty of a sexual offence of any kind.

Crown application to adduce further evidence

On Friday 2 August 2024, prior to the close of the Crown case but after the evidence given by the accused in the first trial was interposed as a matter of convenience, the Crown applied by way of an advance ruling pursuant to s192A of the Evidence Act 1995 ("the EA") to adduce evidence from the following witnesses:- 1. Ms Emily Richardson based on her statement dated 1 December 2023, and, 2. Evidence of Jillian Towers based on her statement dated 22 November 2023.
Ms Richardson was a friend of Ms Towers who is the accused's ex-partner. Both Ms Richardson and Ms Towers have sons attending the same primary school and Ms Richardson set out in her statement observations she had made of the accused when collecting his son after school. She described her observation of the accused kneeling on one knee and opening his arms for his son to walk into them following which the accused would give his son a cuddle and then return to a standing position. She described this movement as "fluent".
The Crown wished to rely on this evidence as going to the accused's credit to meet his assertion given in cross-examination when he stated, "I cannot kneel". This statement of the accused will be referred to as "representation 1".
In her statement, Ms Towers set out her observations of the accused kneeling for the purpose of meeting their son so as to give him what she referred to as "a running cuddle". She recalled on one occasion the accused kneeling down to do that. The Crown wished to rely on this evidence as relevant to the assessment of the credibility of the accused in respect of representation 1.
Further Ms Towers stated that when she first met the accused in 2010, he told her he had recently been with a man and "he performed oral sex on a man". The Crown wished to adduce this evidence to meet a statement by the accused to police during his ERISP, namely, "I'm not gay". This will be referred to as "representation 2". The purpose of the evidence was to impugn the accused's credit.
Ms Towers also stated that she had observed the accused to watch pornography on a daily basis, "a lot of this consisting of male on male and beastiality". The Crown wished to adduce this evidence as going to the accused's credit in that in his ERISP the accused had told police he did not watch porn. This will be referred to as "representation 3".
This Judge alone trial is a re-trial of the accused who had previously stood trial on 8 Counts before a jury. Of those 8 Counts, the accused was found guilty on 2 Counts (Counts 4 and 7) and not guilty on 2 Counts (Counts 1 and 8). The accused is being tried on the 4 Counts in respect of which the jury was unable to agree. Much of the evidence in this Judge alone trial has been evidence recorded from the first trial. For example the complainant's evidence was recorded and was played both with audio and video. Similarly the accused's ERISP in which he denied the allegations of sexual misconduct (Exhibit F) was replayed. The accused's evidence in the first trial, which was recorded by way of audio only, was also replayed and because of issues that arose with another Crown witness being unavailable, was interposed in the Crown case prior to the present application. Therefore the Crown application comes at a time after the accused has given evidence and been cross-examined. It was common ground that the Crown should make its application at this point in the trial so as to give context to the evidence the Crown sought to adduce. The determination of the application concerns the application of s108A and s108B of the EA which are set out below.
On 2 August 2024 I refused the Crown application and what follows are my reasons for doing so.

The Crown submissions

The Crown relied on a written outline of submissions which set out the procedural history. The Crown submitted the evidence of both Ms Richardson and Ms Towers was relevant to the assessment of the credibility of the accused who the Crown characterised as "a person who is not going to give evidence in the current proceedings". The Crown set out the relevant legislation and relied on Azzi v R [2013] NSWCCA 249 as applied in R v Al Batat & Ors (No 19) [2019] NSWSC 1297 per Hamill J at [8]-[11].
The Crown submitted that pursuant to s108B(3) leave was not required to adduce credibility evidence about whether the accused: "a. is biased or has a motive to be untruthful, b. is, or was, unable to be aware of or recall matters to be aware of, or recall matters to which the accused's previous representation relates to or, c. has a made a prior inconsistent statement."
The Crown submitted that evidence meeting one or more of these three criteria then had to be considered "through the lens of s108A i.e. credibility evidence about the accused is not admissible unless the evidence could substantially affect the assessment of the person's credibility."
In respect of representation 1, the Crown submitted the accused had a motive to be untruthful about his inability to kneel.
In relation to representations 2 and 3, the Crown relied on s108B(3)(c) "as the accused made a prior inconsistent statement given the contents of Ms Towers' statement. Further the accused had a motive to be untruthful about not watching pornography."
Consistent with its submissions regarding representation 1, the Crown submitted that the statement of Ms Richardson demonstrated the accused had a motive to be untruthful about his inability to kneel.
The Crown submitted that the proposed evidence could "substantially affect the assessment of the accused's credibility within the meaning of s108A(1) in respect of each of the three representations and was therefore admissible."

The accused's submissions

Counsel for the accused submitted that no relevant credibility exception applied to the evidence of each proposed witness. Counsel noted that the accused's evidence had already been adduced and that he did not intend to give further evidence in this re-trial. This meant that the evidence did not pass the threshold question in s108A(1)(b) EA. The admissibility of the evidence then fell to be determined pursuant to s106 EA which "imposes a very important pre-condition, namely that the substance of the evidence was put to the witness and that the witness denied or did not admit or agree to the substance of that evidence." That had not occurred here.
Counsel submitted that the evidence of the two proposed witnesses concerning representation 1 did not advance the motive of the accused to be untruthful "in any way shape or form". Assuming the threshold in s108A(1)(b) was met, leave would be required pursuant to s108B in which case the Crown should not be granted leave pursuant to s108B(4) which is prescriptive, and the two conditions contained therein are not satisfied. Counsel submitted that no evidence had been admitted in the proceedings that tended to prove a witness for the prosecution (in this case the complainant) had a tendency to be untruthful. Here, cross-examination of the complainant in that sense was limited to whether he had always texted responsibly and respectfully. Otherwise cross-examination of the complainant was mainly around inconsistencies in the complainant's evidence.
Counsel further submitted, "not to undermine my own purpose in having taken the complainant to that message, in my respectful submission, a single untruth about that message, some 4 years before, did not show a tendency on the complainant's part to be untruthful." Thus the Crown should be prevented from adducing the observations of both witnesses.
Alternatively, counsel submitted that the evidence of both witnesses was not capable of substantially affecting an assessment of the accused's credibility. The testimony related to observations made some years prior to the matters the subject of this re-trial. The evidence did not therefore have the capacity to substantially affect an assessment of the accused's credibility.
Counsel further submitted that representation 2 (i.e. "I'm not gay") was not inconsistent with what was asserted by Ms Towers in terms of what she had been told by the accused in 2010 and therefore there was no prior inconsistent statement. Similarly, in respect of representation 3 there was no previous representation imputed to the accused by Ms Towers about that. Again the Crown did not pass the pre-conditions in s108B(4) for the same reasons as outlined above. Both matters had no capacity to substantially affect an assessment of the accused's credibility.
In addition the accused relied on s137 EA. Police had been on notice of what the accused said in his record of interview and so had the Crown at the time of the first trial. These matters were not put to the accused when he gave evidence in the previous trial and no explanation was provided to the Court as to why that was the case. The prejudicial effect of the evidence therefore outweighed the probative value of the evidence. That is, the Court should refuse to admit the evidence as its probative value was outweighed by the danger of unfair prejudice to the defendant.

Crown submissions in reply

The Crown submitted that what was prescribed in s108A(1)(b) raised a threshold question. The Crown submitted, " Being called means giving evidence and being able to be cross-examined. It's a different scenario to what's happened in this trial. The testimony from the previous trial does not - or should not be categorised as the calling of a witness. It's, rather, representations made by that witness, either in response to questions in examination-in-chief, cross-examination or re-examination - representations that are relevant, and they are adduced by the Crown in these proceedings, but the person who made those representations is not called, in the sense of being able to be cross-examined in these proceedings."
In the Crown submission leave was not required pursuant to s108B given that the evidence from the two proposed witnesses "is about the accused who had a motive to be untruthful". The Crown submitted that the prerequisite in s108B(3)(a) is satisfied.
Similarly the Crown referred to the evidence of Ms Towers about the sexuality of the accused, albeit based on observations made some years before the alleged offences. It submitted "sexual preference is not something that flicks on and off like a switch. Its enduring, and therefore that alternative pre-requisite, making a prior inconsistent statement in respect of sexuality, that pre-requisite is met". Hence the Crown submitted that leave was not required.
The Crown submitted it relied solely in relation to the interpretation given to s108B(3), however if leave was required, then the Crown had overcome the barrier in s108B(4).
In respect of the application of s137 EA, the Crown submitted there was no danger of misuse of the evidence, this being a Judge alone trial.

Determination of the Crown's application

Sections 108A and 108B EA provide as follows:- 108A Admissibility of evidence of credibility of person who has made a previous representation (1) If - (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to - (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant - (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that - (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to - (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.
The sections have been construed by the Court of Criminal Appeal in Azzi v R and by Hamill J in R v Al Batat & Ors (No 19) where his Honour applied the Court's construction in Azzi. Both cases involved drug offences and involved the admissibility of credibility evidence, that is, evidence that was "capable of substantially affecting the jury's assessment of the appellant's credibility generally and, in particular the weight which might be given to his denial that he was in possession of the heroin" (as per Fullerton J in Azzi at [47]). That case concerned the appellant having lied about other drugs in his possession. The analysis was accepted by Hamill J in R v Al Batat & Ors (No 19) (at [17]). That case concerned evidence of a prior inconsistent statement and therefore the prosecution did not require leave pursuant to s108B(2) and s108B(4) had no application. The authorities are therefore not determinative of the issue here, and may be distinguished on their facts.
Representation 1 as outlined above arose late in the cross-examination of the accused. It is therefore not a "previous representation" as set out in s108A(1)(a). The Crown does not satisfy the threshold in s108A(1)(b) as the person who made the representation, the accused, has been called to give evidence and has been cross-examined on that evidence. The parties agreed that the accused's evidence in the first trial was to be his evidence in this trial, and notwithstanding that they further agreed to interpose that evidence in the Crown case means that the accused cannot be characterised as a person who made representations and "has not been called and will not be called to give evidence in the proceedings". The submission made by the Crown in reply to the contrary is misconceived, and I reject it.
The same reasoning applies to representations 2 and 3 outlined above which were previous representations made by the accused in his ERISP and of which the Crown had been on notice from the outset. Section 108B provides further protection regarding previous representations of an accused who is not a witness. It does not apply here because the accused has given evidence in the proceedings as outlined above.
If I am wrong in the application of s108A I find that leave would be required here in that neither of the representations could be characterised as a prior inconsistent statement nor do they fall within s108B(3)(a) namely whether the defendant "is biased or has a motive to be untruthful". The proposed evidence of both witnesses relating to representation 1 are remote in time from the allegations of sexual misconduct in this trial and in fact would fall within the rubric of tendency evidence. The representations 2 and 3 are so far removed from the question of bias or motive to be untruthful so as to be incapable of being relevant to those issues. Without needing to determine whether s108B(4) applies I would refuse leave.
Finally, even if the Crown was able to satisfy the threshold in s108A(1) I am not satisfied that the evidence concerning each of the three representations outlined above could substantially affect the assessment of the accused's credibility.
For these reasons I refused the Crown application to adduce evidence based on the statements of the two proposed witnesses.

The Crown address

The Crown submitted that proof of the four charges rests with whether the complainant, AT was a truthful and reliable witness. The Crown submitted that after considering all of his evidence, and all of the other evidence in the trial including the complaint evidence, the Court would find the complainant to be a truthful and reliable witness. The Crown conceded there were variations in his account but relied on the context in which his evidence was given. Counts 1 and 2 occurred in the entertainment room after the accused had asked the complainant, "Have you had sex before?" and after the complainant replied "No", the accused asked "Do you want to try it?" to which the complainant responded "Not really".
The Crown relied on the complainant's answers to investigating police in his interview when he told police the accused pulled his pants down and started rubbing his penis with his hand. That evidence was proof of Count 1 on the Indictment. Count 2 was proved by the complainant telling police that the accused kneeled down and started sucking his penis and as the complainant tried to pull away the accused had his hand on his back. The accused said to him "Come on. Cum in my mouth" to which the complainant replied "No, I'm right. I don't want to".
The Crown submitted that Count 3 was proved beyond reasonable doubt on the basis of the evidence given by the complainant that when he was in the shower the accused put baby oil on his penis and started masturbating his penis. Count 4 was established on the evidence of the complainant that the accused then sucked his penis.
The Crown submitted that the Court would take into account the complainant's demeanour both when being asked questions by police in his interview and also during his evidence at the first trial where he had the benefit of a witness intermediary who played a very "non-active role".
The Crown referred to the evidence of the complainant concerning Count 4 where he said the accused sucked the complainant's penis in the shower. The complainant gave evidence that the accused said "Shh, it'll be alright" and the complainant responded, "This is a bit weird". The accused said "It's not weird" and the complainant replied, "I feel very uncomfortable". The complainant then recalled the accused saying "Don't be uncomfortable, it's all good".
The Crown relied on this conversation to establish the complainant's lack of consent to all of the alleged sexual activity. Together with the conversation referred to above including when the accused said "Do you want to try it?", meaning sex and the complainant responded "Not really". The Crown submitted the accused would have known that the complainant was not consenting to what followed, both in the entertainment room and in the shower shortly thereafter. Alternatively the Crown submitted that the complainant's words, "Not really", "if they didn't communicate lack of consent, then the evidence of AT as to what happened in those two rooms establishes that the accused would have realised that there was a possibility that AT wasn't consenting, but yet he went ahead. In other words, recklessness on the part of the accused to the question of AT consenting or not."
The Crown submitted that the circumstances in which the accused who was 38 years of age, being alone with an 18 year old complainant who was the autistic friend of the accused's step-son meant the Court would find that the accused had no reasonable grounds to believe that the complainant was consenting to the sexual activity that took place.
The Crown listed 17 non-issues that arose on the evidence that, for the purpose this judgment, I do not repeat but they are reflected in my findings of fact below.
The Crown rehearsed his submission concerning the complainant's demeanour both during his interview with police on 22 October 2020 and his evidence in the original trial proceedings. Whilst at times he could not see the relevance of questions being asked by counsel during cross-examination he gave his evidence in a straightforward fashion. For example in relation to an abusive text message he sent when he was in high school he agreed that it was abusive but said "I was young and stupid. It was abusive, yes, agree." The Crown submitted that the complainant gave a truthful account of what happened between him and the accused in the entertainment room and the bathroom and was able to articulate that he did not want to have sexual intercourse and that he did not want the accused to touch him.
The Crown accepted that the issue in the trial is whether the alleged acts occurred or not and in relation to proof of each charge the Court would have to accept that the complainant was telling the truth and that his evidence was reliable.
The Crown relied on the complaint evidence namely, the fact that the complainant disclosed sexual misconduct to Christine Shankley and to his parents KT and GT on the very same day, namely 22 October 2020, as well as what he told police during his interview that evening as supporting the allegations alleged by the Crown. The Crown submitted the Court would not hold doubts about different versions provided by the complainant because of the context and complaints he made. The context included that by going to police it cost the complainant his friendship with Noah, one of only two friends he had during his life.
The Crown asked rhetorically, "Why would a person in the complainant's situation go back to the place where they were abused?" To explain the complainant returning to the accused's home the Crown submitted that the Court would take into consideration that it was his "best mate's place", that he was scared of the accused and that the accused had apologised to him after words were spoken between the accused and Ms Shankley that morning. The Crown submitted that if the Court were to accept the accused's version as to what occurred, the complainant would not have been upset that evening when he was around his parents.
In relation to the evidence given by Ms Shankley, the Crown referred to her making two statements on 22 and 28 October 2020. The Crown submitted that as at 23 October the accused was not charged. She had provided further detail to Detective Castle on 28 October in which she had included evidence that was favourable to the accused, namely that the complainant had told her that he was confused about his sexuality. At that time Ms Shankley was aware that the accused had admitted to her that he had shaved the complainant's pubic hair and that she had never told the accused what the complainant had alleged in his conversation with her. This evidence defied common sense in the Crown's submission.
The Crown conceded that the complainant did not mention a machete until his cross-examination at trial. However the Crown referred to the evidence of the complainant's father that the complainant told him on 22 October 2020 that there was a machete at the front door of the accused's home. KT could not recall when he had been told that. He did not give evidence of it during his testimony at the original trial but could not recall exactly when he discussed it with his son. When asked whether he could be mistaken about it the complainant's father had answered, "I sort of recall knowing about the machete from the start".
The Crown referred to the text messages sent by the complainant to his mother at 1:06 a.m. and 1:07 a.m. on 22 October 2020. The Crown submitted that this provided context to the complainant's allegations. Further the text he sent his mother at 8:03 p.m. on that day gave further context to the complaint evidence and what he told his mother when she arrived at the caravan park, namely that the accused had sexually assaulted the complainant, touched his penis, shaved him and sucked his penis.
The Crown conceded that during his initial meeting with Detective Delforce there was no mention by the complainant of his penis being sucked, no mention of the machete and no mention at that stage of the accused playing porn on the laptop.
The Crown submitted that the accused's evidence would not cause the Court to have reasonable doubt about proof of any of the four charges. Despite the accused telling the complainant that what he was doing was inappropriate the accused had then trimmed his pubic hair with a set of clippers and told the complainant that "manscaping makes your penis look bigger".
The Crown submitted that notwithstanding that at the time of the accused's ERISP the complainant had made no mention of pornography, the accused had in his ERISP volunteered "I don't even watch porn".
The Crown submitted that if the complainant was behaving in the highly sexualised way described by the accused the Court might think that he would not tell or disclose such behaviour to Ms Shankley the next morning and would not be upset the following evening in the presence of his parents.
The Crown submitted that none of the evidence from the accused caused doubt in respect of any of the charges. Rather the complainant's spontaneous account of a series of unwelcome sexual encounters initiated by the accused was compelling. The Crown submitted that each of the charges had been proved beyond reasonable doubt and that verdicts of guilty should be returned in respect of each count.

The accused's address

Counsel for the accused confirmed that the defence case is that the alleged offences simply did not occur. It was not in dispute that if the Court were to accept the complainant's account of the four charges beyond a reasonable doubt, then the Court would be entitled to be satisfied of the elements of each of the offences. The onus of proof however never shifts and thus the Court must be satisfied of the complainant's honesty and reliability in terms of each of the four Counts beyond a reasonable doubt.
Counsel submitted that the Court would accept the accused's account of events that evening, but more importantly the critical issue is whether it is "reasonably possibly true". If so, then the Court would be entitled to reject the complainant's account beyond a reasonable doubt.
In relation to the accused's ERISP the Court would take into account that neither the accused nor Ms Shankley had notice that the police were going to their house on the evening of 22 October 2020.
Having been properly advised as to his right to silence the accused told police he was "happy to be interviewed". Counsel submitted that he then gave police a frank and honest account which included numerous admissions against his interest. He spoke freely about how he shaved the complainant's pubic area and that in doing so he accidentally brushed the complainant's penis. Counsel submitted that he was not only admitting opportunity to commit these offences, but freely admitted making contact with the complainant that might be interpreted as sexualised. He further readily agreed that he asked the complainant if he had ever had sex. Counsel submitted that this was a perfect opportunity for a dishonest person to manufacture an account of what happened that night that did not involve any of those things.
Counsel submitted that the accused did not exaggerate or try to paint the complainant in a negative light, referring to him as "a good kid".
Further the accused gave greater context to the conversations he had with the complainant that night. It was in a conversation about girls that the question of manscaping was raised.
Counsel submitted the evidence by which the accused agreed to assist the complainant in manscaping, the evidence required a nuanced approach. Context was provided by the accused giving evidence about his autistic niece and nephew and living full-time with his autistic step-son. Counsel submitted this evidence had a real ring of truth and provided a perfectly rationally, albeit unusual, explanation for why the accused acceded to the complainant's request to assist in manscaping himself.
Counsel submitted a lot of what the accused said was both plausible and sat comfortably with other evidence, for example, the fact that the complainant did not like living in a caravan park and was looking for other accommodation.
Counsel submitted that the accused's account was further bolstered by evidence relating to his character. Ms Shankley gave evidence relating to the accused's honesty by describing him to be "Honest, without a fault. There's no lies, no deceit."
Counsel submitted there was no good reason to reject the accused's account and that in itself would cause the Court to return four verdicts of "Not Guilty."
In relation to the complainant's evidence, counsel agreed that the witness intermediary did not intervene at all to assist him in giving evidence and the complainant would have impressed as someone who, despite his diagnoses, understood and was able to respond to questions promptly. He did however prevaricate at times, for example when asked why he didn't get along with his father. Another example was his evidence concerning the porn site Xhamster.
Counsel referred to significant issues which would lead the Court to have a reasonable doubt about the complainant's honesty and reliability. The first was his evidence concerning the machete. Counsel submitted that the Court would not accept KT's evidence that the complainant told him about this machete before he gave evidence in the first trial. There was no evidence adduced from either of the complainant's parents on that issue at the first trial. Further Detective Delforce confirmed there was no mention of a machete when the complainant attended the police station on two occasions on the 22nd of October 2020. Detective Delforce made no reference to it in the notes that he took, his COPS entry and there was no mention of it in the further statement taken from the complainant 13 months later in November 2021. Importantly, no machete was found when the accused's home was searched by Detective Castle on the night of the alleged offences.
The second significant inconsistency in the complainant's evidence concerned the introduction of further offences in the entertainment room when the complainant made his statement in November 2021. Whilst this concerned context evidence only, his failure to mention anything about it to police in his first interview was a significant matter affecting his honesty and reliability. In his first interview with Detective Delforce he had merely said "We went out of the bathroom into the loungeroom and then we sat there and then I went to bed".
The next significant inconsistency in the complainant's evidence concerned his evidence that the accused had left the premises on his motorbike to get more alcohol. In cross-examination he had volunteered for the first time that the accused had drunk a bottle of Jack Daniel's and that whilst he had not mentioned this to anyone else, he had seen the bottle before the accused left to get another bottle. The complainant said he saw the accused leave on his motorbike at about 3:00 p.m. It was submitted that this evidence did not make any sense. It was inconsistent with Ms Shankley's evidence that the accused never left the house on that day and was further inconsistent with Detective Castle's evidence that no second bottle was found.
The fourth main inconsistency was the evidence concerning the account which involved the accused pulling the complainant's pants down in the loungeroom. The complainant gave evidence that the accused pulled his pants all the way down and then sucked his penis in the entertainment room. However the first time he met Detective Delforce he told the police officer that the accused had tried to pull his pants down but that the complainant had resisted, that he had got up and gone to the toilet. This was a critical detail which did not appear in the COPS entry. Notwithstanding that Detective Delforce did give evidence that in his notes there was a reference to the accused touching the complainant's penis, counsel submitted that did not assist the Crown whose case was that immediately prior to the commission of Count 2, the accused had masturbated the complainant. There was no mention at all that fellatio had occurred.
Notwithstanding the statutory direction that the Court would give itself, this inconsistent account was a very relevant factor to take into account when considering whether the Crown had proved the guilt of the accused beyond a reasonable doubt.
Further, counsel submitted that the complainant's account had appeared to "grow and grow" when he gave evidence. There were two main implausibilities which affected the assessment of his honesty and reliability. First that he went back to the accused's house the next morning notwithstanding his own evidence that he was scared. The complainant sent a text message to the accused at 5:38 a.m. that morning and there was no difference at all in tone or language from text messages he had sent the accused the day before. His explanation for returning to the accused's home was that he didn't want to leave Noah there because Noah didn't know what had happened. However the complainant had stayed at the accused's home after Noah went to school. Further the complainant had given evidence that he did not want to stay at his dad's house because he was worried that his dad would hurt the accused. However the complainant's dad had already left for work and he would not have known about the allegations.
Counsel referred to the Crown submission that it was understandable that the complainant would have gone back the next day because the accused had told him not to tell anyone. However the complainant had told Ms Shankley that morning. It was submitted the only rational explanation for the complainant returning to the house that morning is that the events unfolded as the accused described.
A second implausibility was the evidence of the complainant that it was the accused who suggested that he move into the spare room. It was submitted this was clearly inconsistent with Ms Shankley's evidence that she was keeping the room for her daughter. It was submitted that it made far more sense that it was the complainant who was the one wanting to move in.
Counsel referred to the messages in Exhibit D that the complainant sent to his mother at 1:06 a.m. and 1:07 a.m. on 22 October 2020. Counsel characterised the evidence as circumstantial evidence, that there was no direct complaint made and ultimately the evidence was neutral. It was submitted that the messages were entirely consistent with the night having unfolded in the way the accused said it did. If that were the case, the complainant would have been quite embarrassed by his behaviour which might have ruined any chance he had of moving into the spare room at the accused's home. Also consistent was the evidence of the accused that he had told the complainant that it was inappropriate for him to have photographs of naked girls from school on his phone. It was submitted the evidence did not advance the Crown case at all.
In relation to the complaint evidence relied on by the Crown, counsel for the accused submitted that a lie repeated to others doesn't necessarily make it more true. In relation to the evidence of Ms Shankley, counsel submitted there was no suggestion that things were done without a lack of consent or forcefully. Counsel submitted that Ms Shankley was not "gilding the lily to assist Mr Ferguson because of their relationship". Her account was consistent with the accused's evidence that the complainant had apologised to him for getting carried away and saying the wrong things to her.
In relation to KT's observations of the complainant when he disclosed matters to his father, counsel submitted that this was equally consistent with the complainant being embarrassed or upset because of his behaviour that night. It was submitted that the accused accidentally touching the complainant would have impacted on his prospects of moving into the home.
Counsel submitted that GT's observations of the complainant's emotional demeanour were explained by the fact that the complainant really had no choice but to go to the police given that the other choice was to go to the accused's house. It was submitted the police became involved even though the complainant expressed to his father that he didn't really want to go because they wouldn't believe him. Counsel submitted that the parents' observations of the complainant's demeanour were equally consistent with a young man "who had plenty of reasons to be upset, consistent with Mr Ferguson's account" other than because of sexual misconduct.
Counsel submitted that the complainant's evidence and his demeanour did not assist the Crown to the exclusion of the defence case. It was submitted that it was at least reasonably possible that the accused's version was true and simply could not be rejected beyond reasonable doubt and accordingly four verdicts of not guilty should be returned.

Directions of law

Section 133 of the Criminal Procedure Act 1986 (NSW) provides as follows: "(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved each of the elements of the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charges beyond reasonable doubt. Speculation cannot enter into my considerations and suspicion, not even the gravest of suspicion, can be a substitute for proof beyond reasonable doubt.
I have heard submissions from both the Crown and counsel for the accused. I will consider those submissions and give them such weight as I think they deserve. In no sense are those submissions evidence in the case.
It is for me to assess the various witnesses and decide whether they are reliable. The reliability of any witness' evidence depends upon both the witness' honesty and also the witness' accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. I am not obliged to accept the whole of the evidence of any witness. I may, if I think fit, accept part and reject part of that witness' evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question, and it only becomes evidence of the fact if the witness accepts that proposition as true or if there is other evidence that proves the proposition.
I remind myself that I may as a Judge of the facts draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. In this criminal trial I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a rational inference in the circumstances.
The following are the elements of the four offences on the Indictment which the Crown has the onus of proving beyond reasonable doubt:-

Counts 1 and 3 The elements of this offence are:- 1. The accused intentionally; 2. in circumstances of aggravation; 3. touched the victim sexually; 4. the complainant was not consenting to that touching and; 5. the accused knew that the complainant was not consenting.

Elements for Counts 2 and 4 The element of this offence are:- 1. The accused had sexual intercourse with the complainant; 2. that sexual intercourse occurred without the consent of the complainant; 3. the accused knew or was reckless to the lack of consent of the complainant to the sexual intercourse; and 4. that the sexual intercourse occurred in circumstances of aggravation namely that the complainant had a cognitive impairment.

"Sexual touching" means a person touching another person with any part of their body or anything else in circumstances where a reasonable person would consider the touching to be sexual.
The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include: 1. Whether the area of the body involved in the act is a person's genital area, or 2. Whether the person carrying out the act does so for the purposes of obtaining sexual arousal or sexual gratification, or 3. Whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
A person "intentionally" sexually touches another person if they do it on purpose or do it deliberately.
A person consents to sexual activity if they freely and voluntarily agree to the sexual activity. The Crown needs to establish beyond reasonable doubt that the complainant did not freely and voluntarily agree to the sexual touching. Consent can be given verbally or expressed in actions, Similarly, absence of consent does not have to be in words. A person who does not offer actual physical resistance to a sexual activity is not by reason only of that fact to be regarded as consenting to the sexual activity.
This element relates to the mental state of the accused that must be proved beyond reasonable doubt. That is, the state of mind of the accused. In the case of Counts 1 and 3, the Crown relies upon the following two alternative ways that are available to prove the mental elements of the offence in each instance: 1. By establishing the accused actually knew that the complainant did not consent to the sexual touching; or 2. By establishing the accused was reckless as to whether the complainant consented to the sexual touching. For the purposes of deciding whether the Crown has proved this mental element in the two ways outlined above, I must have regard to all the circumstances of the case including any steps taken by the accused to ascertain whether the complainant consented to the sexual touching. I must however disregard any self-induced intoxication of the accused from alcohol.
In relation to recklessness, I can find the mental element of the offence has been proved on the basis of recklessness if I am satisfied beyond reasonable doubt either that the accused was aware (i.e. realised) there was a possibility that the complainant was not consenting to the sexual touching but he proceeded to carry out the sexual touching anyway.
There is no issue that the complainant had a cognitive impairment in this case.
In relation to Counts 2 and 4, I note that at law, sexual intercourse includes fellatio.
A person consents to sexual activity if they freely and voluntarily agree to the sexual activity. The Crown needs to establish beyond a reasonable doubt that the complainant did not freely and voluntarily agree to the sexual intercourse. Consent can be given verbally or expressed in actions. Similarly, absence of consent does not have to be in words. A person who does not offer actual physical resistance to a sexual activity is not by reason only of that fact to be regarded as consenting to the sexual activity.
In relation to recklessness, as set out above I can find the mental element of the offence has been proved on the basis of recklessness if I am satisfied beyond reasonable doubt either that the accused was aware (i.e. realised) there was a possibility that the complainant was not consenting to the sexual intercourse but he proceeded to carry out the sexual intercourse anyway.
In addition to the matters set out above, I am required to give myself the following directions of law in my determination of the factual matters in the trial and ultimately my verdicts. The directions are as follows:- 1. R v Markuleski (2001) 52 NSWLR 82 direction Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome. If I were to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. If I have a reasonable doubt about the complainant's credibility in relation to any one count, I might believe it difficult to see how the evidence of the complainant could be accepted in relation to any other count. 1. Statutory direction pursuant to s293A of the Criminal Procedure Act 1986 If I find there are inconsistencies in the complainant's account that may be relevant to his truthfulness or reliability, I direct myself that experience shows: (1) People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. (2) Trauma may affect people differently, including affecting how they recall events. (3) It is common for there to be differences of accounts in a sexual offence, and (4) Both truthful and untruthful accounts of a sexual offence may contain differences. It is up to me as the tribunal of fact to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability. 1. Complaint evidence direction In this trial the Crown relies upon evidence of what the complainant said to other people about the alleged sexual assaults, that such an assault did occur. The evidence the Crown relies upon falls into three categories. They are: 1. The complaint of AT to Christine Shankley. 2. The complaint of AT to KT. 3. The complaint of AT to GT. I do not intend to go over all of that evidence. It is for me to decide whether the complaints were made and what their contents were. If I find that the complaints were made substantially to the effect that each witness gave evidence of, then I can use evidence of what was said in the complaint as some evidence that such an assault did occur. The law says that because of the circumstances in which the complaint was made, a decider of fact is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against a person, namely, the accused. I am entitled to find that the complaints were made at a time and in a manner that would indicate that the allegations were reliable, that is, that the allegations are less likely to have been fabricated by each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged sexual touching and sexual assault by the accused in addition to the evidence that has been given about it in this courtroom. If I do use it as some evidence of the sexual assaults, that is the subject of the charges, then what weight I give it is again a matter for me. Whether I do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that the complainant raised the allegations against the accused at the time and in the manner that he did, would lead me to accept the evidence given by the complainant in his evidence. In other words, it makes the evidence of the complainant more believable if he had not raised the allegations as he did. Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should 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 that I would expect persons who have been assaulted in that way?" If I think that the complainant has done what I would expect someone in his position to do, that may support the Crown case because I may find that there is a consistency between the complainant's conduct and the allegations that he made against the accused, Benjamin Joel Ferguson. 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 allegations are false. But I must bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegations must be false. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion. 1. Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 The accused relies on an account of events in his ERISP and the evidence he gave. That account is that he denied that any of the alleged sexual misconduct occurred. The accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have. It follows from this: First, if I believe the accused's evidence, obviously I must acquit. Secondly, if I have some difficulty accepting the accused's evidence, but think it might be true, then I must acquit. Thirdly, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charges which it brings against the accused, and there is no onus on the accused to prove that he is not guilty. 1. Good character direction The accused relies on evidence to establish that he is a person of good character in a particular respect. That evidence was to the effect that Benjamin Joel Ferguson is a person of good character namely: 1. That as of 21 October 2020, Benjamin Joel Ferguson had not previously been charged with or found guilty of a sexual offence of any kind. The law provides that I am entitled to take evidence of an accused's good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Benjamin Joel Ferguson is a person of good character in those respects is relevant to the likelihood of him having committed the offences alleged. I can take into account Benjamin Joel Ferguson's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for me. Further, there was evidence of good character in a different respect that was led from the accused's partner, Christine Shankley. That evidence was to the effect that in the time she has known the accused she had found him to be honest without a fault. It is of course a matter for me if I accept that part of her evidence bearing in mind it was unchallenged by the Crown. If I do accept that part of her evidence, then I may reason that a person of good character in that respect is less likely to lie or give a false account, in the evidence before me or in giving an account of the events in answer to questions asked by the Police. Whether I reason in that way is a matter for me to determine. None of this means, of course, that good character provides Benjamin Joel Ferguson with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of Benjamin Joel Ferguson. What weight I give to the fact that Benjamin Joel Ferguson is a person of good character in these two respects is completely a matter for me. In addition, I keep in mind the fact that a person who has previously been of good character can commit a sexual offence for the first time. 1. Jovanovic v R (1997) 42 NSWLR 520 The accused has asserted a motive to lie on the part of the complainant in this case. Namely, that it was because of the complainant's behaviour in exposing his penis on the night of the alleged offences; and/or that he feared that telling police the truth about those events in his recorded interview would result in him getting in trouble. I remind myself that the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. The accused bears no onus of proof to prove a motive to lie on behalf of the complainant. Rejection of the motives asserted by the accused does not necessarily justify a conclusion that the evidence of the complainant is truthful. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. Even if I conclude that there is no apparent reason for the complainant to have made up these allegations, I cannot be satisfied that the complainant is telling the truth merely because of that fact. There might be a reason for the complainant to be untruthful that nobody knows about. The Crown must still satisfy me the complainant was telling the truth. The accused bears no onus to prove a motive to lie. If I reject the accused's assertion that the complainant had a motive to make untruthful allegations, that in itself does not necessarily justify a conclusion that the evidence of the complainant is truthful.

The factual issue to be determined

The factual issue in the trial is whether the alleged incidents in the four Counts on the Indictment occurred. The determination of that issue and my factual findings begin with an assessment of the witnesses. In assessing whether I accept the evidence of any particular witness I am not required to accept all or reject all of any witness's evidence. Having regard to the totality of the evidence, I may accept part and reject part of a particular witness's evidence if there is a reason for doing so.
With respect to the complainant AT, it is an agreed fact that he suffered from diagnoses of autism, a mild cognitive impairment and anxiety. That was somewhat self-evident in his demeanour when being interviewed by Detective Senior Constable Delforce, and also in his evidence. He spoke with a generally flattened affect and responded appropriately to most questions. Notwithstanding that his speech was markedly hurried, he gave responsive answers and made appropriate concessions during his cross-examination.
The complainant's parents, KT and GT both gave evidence in a straightforward fashion without embellishment. It was not put in dispute that the complainant complained of sexual misconduct by the accused towards him the previous evening when he spoke to each of his parents on 22 October 2020 notwithstanding there was some variations in what he told each of his parents. I accept that the complaints were made in the terms set out in each witness' evidence. I find that each was doing their best to assist the Court.
The evidence of Christine Shankley was tendered by way of transcript only and I therefore did not have the opportunity to assess her demeanour when giving evidence. The content of the conversation the complainant had with her on the morning of 22 October 2020 is in dispute, although I find that it caused her to speak to the accused who subsequently made an apology, the contents of which are disputed, to the complainant.
I did have the opportunity of assessing the demeanour of the accused during his ERISP interview. In the initial part of that interview when he was unaware of the actual allegations made by the complainant, he was garrulous in his narrative of what occurred on the evening of 21 October 2020. He did however deny each of the allegations when they were put to him as he did in his evidence in the first trial. Given the direction that I have given myself concerning his evidence, my ultimate assessment of his evidence may be determinative of the verdicts which I am to deliver at the conclusion of this judgment.

Matters not in dispute

On the whole of the evidence I find the following findings of fact:- 1. The complainant was diagnosed with ASD, a mild-intellectual disability and a generalised anxiety disorder (Exhibit K) prior to 2020. 2. The accused suffered a functioning neurological disorder and anxiety in 2020. 3. The accused as at 21 October 2020 had not previously been charged with or found guilty of a sexual offence of any kind. 4. On 21 October 2020 the complainant stayed overnight at the home of his friend Noah, the accused's step-son who also suffered, inter alia, ASD. 5. Noah and his mother, Ms Shankley went to bed by 9:30 p.m. on that night. 6. At 1:06 a.m. on 22 October 2020 the complainant sent a text to his mother saying, "I should have NOT stayed at Noahs". 7. The complainant had a conversation with Christine Shankley on the morning of 22 October 2020 which caused her to have a heated conversation with the accused who subsequently apologised to the complainant. 8. Having returned his father's mower in the early hours of the morning, the complainant returned to the accused's home where he stayed until approximately 2:00 p.m. on 22 October 2020. 9. Early in the evening of 22 October 2020 the complainant told his father, KT that he had been sexually assaulted by the accused. 10. The complainant and his father went to Raymond Terrace Police Station and spoke to Detective Senior Constable Delforce about what had occurred. 11. The complainant sent a text to his mother, GT at 20:03 hours asking her to come to his place, "so we can talk in private. Not good". 12. When she arrived at the complainant's caravan, he disclosed to his mother that the accused had sexually assaulted him. 13. The complainant with his parents returned to the Raymond Terrace Police Station where the complainant was interviewed by DSC Delforce in the presence of his mother as a support person. 14. In 2020 the complainant needed support from his mother, GT in the form of "financial, emotional and day to day living". 15. That some time after 9:30 p.m. on 21 October 2020 the accused said to the complainant in the entertainment room of his home, "Have you had sex before?" and the complainant replied "no", and 16. At a time either later that evening or in the early hours of 22 October 2020 the accused shaved the genital area of the complainant with clippers, in what the parties referred to as "manscaping".

Determination of the ultimate factual issue - Did each of the acts alleged by the complainant occur?

I make the following findings:- 1. The complainant was a compelling witness notwithstanding that he had ASD and a mild cognitive disorder. Having regard and giving full effect to the statutory direction pursuant to s293A of the Criminal Procedure Act, I accept that he gave different versions of what occurred on the evening of 21 October 2020 to his parents and the police, and provided a second statement with additional allegations 13 months later in November 2021. However, trauma may affect people differently, including their recall of events and it is common for there to be differences in accounts of a sexual offence. I take this into account in assessing the truthfulness and reliability of the complainant's evidence regarding each of the allegations he makes against the accused. I also take into account his diagnoses of ASD and mild cognitive impairment. 2. In assessing the accused's evidence I do so having regard to the whole of the evidence in the trial which gives context to his denials that the incidents outlined by the complainant occurred. I find that the long narrative exculpatory explanations given by the accused to police in his ERISP to the effect that it was the complainant who was acting inappropriately, and the accused was telling him not to, was implausible evidence tailored for the purpose of shifting blame from himself. 3. The concession made by the accused that he asked the complainant "Have you had sex?" to which the complainant answered "No", was entirely inconsistent with the accused's explanation. I accept the complainant's evidence that the accused then said, "Would you like to try it?" to which the complainant replied, "Not really". This evidence had the ring of truth about it and led to the conduct alleged in Counts 1 and 2 which occurred in the entertainment room. 4. That the accused also admitted to shaving the complainant's genital area and "accidentally brushing his penis" in the process was also disingenuous and entirely inconsistent with the accused's denials. I reject his explanation as exculpatory in order to minimise or neutralise his conduct and to shift blame to the complainant. I find the accused's evidence was deliberately overly paternalistic and it was the accused who acted in a sexualised manner by asking the complainant, who was twenty years his junior, "Have you ever had sex?". 5. I therefore reject the accused's evidence as to what occurred. Nor do I accept that the events might have occurred as described by the accused, notwithstanding his good character, having not been previously charged with or convicted of a sexual offence of any kind prior to 21 October 2020. I therefore set aside the accused's evidence and look to the other evidence in the trial to determine whether the Crown has established each of the offences beyond reasonable doubt.

Has the Crown proved the offences beyond reasonable doubt?

On the basis of all of the evidence, I accept that the complainant was both a truthful and reliable witness as to the elements of each of the four offences.
I accept that the complainant disclosed the sexual misconduct of the accused that is, that the accused both sexually touched him by masturbating him and fellating him to Christine Shankley in the morning of 22 October 2020 and to his parents KT and GT that evening. I accept the evidence of both KT and GT that the complainant was emotionally upset and tearful at the times he made those disclosures. I therefore accept their evidence as some evidence that the sexual assaults did occur.
The differences relied on by the accused as what was reported by the complainant at various times did not give rise to a reasonable possibility that the four incidents in Counts 1 to 4 did not occur. The first concerned the complainant's evidence that there was a machete in the entertainment room which gave rise to the complainant being scared of the accused. I accept that the complainant did not tell the police about that on the two occasions he spoke to Detective Delforce on 22 October 2020 and that no machete was found when the accused's home was searched by Detective Castle on the same night. However the presence of a machete was a matter of no great moment in the trial, nor was the question of when the complainant told his father about it a matter of any significance. This aspect of the evidence had no relevance to whether the Crown had proved the elements of each offence beyond reasonable doubt.
The second matter relied on by the accused concerning any inconsistency in the complainant's evidence concerned the introduction in the complainant's evidence of further offences in the entertainment room when the complainant made his statement in November 2021. Whilst those matters may have been significant in the previous trial which concerned a total of 8 Counts on the Indictment, it had little relevance to the issues to be determined here, other than context.
The third matter relied on by the complainant concerned the evidence of the complainant that the accused had left the premises at approximately 3:00 p.m. on the 21st of October 2020 on his motorbike to purchase alcohol. I accept that this evidence was inconsistent with Ms Shankley's evidence that the accused never left the house on that day and was further inconsistent with Detective Castle's evidence that no second bottle of Jack Daniel's (namely empty bottle) was found. However Ms Shankley was on her own evidence not present for the whole of that day, there was no evidence of any search of any waste bins by the police and in any event it was a minor matter of little significance about which the complainant may have been mistaken.
The fourth inconsistency relied on by the accused relating to the extent to which the complainant told police the accused pulled his pants down is the very kind of evidence to which the statutory direction pursuant to s293A of the Criminal Procedure Act is directed. Further, the absence in Detective Delforce's notes of any mention that fellatio had occurred in the entertainment room prior to the complainant going to the bathroom could not be determinative of whether that act occurred.
I do not accept the submission by the accused that it was implausible that the complainant returned to the accused's home on the morning of the 22nd of October 2020 having returned the lawn mower to his father's home which was nearby. Having returned to the accused's home the complainant then disclosed the sexual misconduct to Ms Shankley following which the accused apologised to the complainant. I therefore reject the submission made that the only rational explanation for the complainant returning to the house that morning was that the events unfolded as the accused described.
I also reject the submission made on behalf of the accused that it was implausible evidence of the complainant that it was the accused who suggested that he move into the spare room. Whilst the complainant conceded that he was looking to move from the caravan park where he was living, this was an issue which had no relevance to the determination of whether the complainant's evidence was truthful and reliable.
Also irrelevant to the determination of whether the complainant's evidence was truthful and reliable was the assertion made by the accused that during the evening the complainant showed him nude photos of girls at his school and that the accused had counselled him that such behaviour could be unlawful. This was evidence designed to shift blame to the complainant which ultimately had no basis in the evidence. Other exculpatory evidence of the accused concerned statements he volunteered to police during his ERISP namely "I'm not gay", "I do not watch porn" and "I cannot kneel". In respect of the latter there was no objective evidence supporting that assertion and I do not accept it as reliable evidence, rather it was exculpatory evidence without any evidentiary basis.
I find that the evidence of Ms Shankley was tailored to support the accused because of their relationship and that she did not give a reliable account of her conversation with the complainant on the morning of 22 October 2020.
I am therefore satisfied that the complainant's evidence in relation to each of the four Counts on the Indictment was both truthful and reliable. Given that the only issue in the trial was whether those incidents occurred or not, I am therefore satisfied that each of the elements of each count on the indictment has been established beyond reasonable doubt.

Conclusion and verdicts

I am therefore satisfied that the Crown has proved each count beyond reasonable doubt, and there will be a verdict of guilty in respect of Counts 1, 2, 3 and 4 on the Indictment.
Benjamin Joel Ferguson you are convicted of the following counts on the Indictment:- 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 2. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 3. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 4. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

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R v Ferguson

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