R v GN

Overview or summary of the allegations

1. The following does not constitute any finding of fact; rather it is simply a very brief summary of what is alleged in respect of each of the counts in order that anyone hearing or reading these reasons might more readily understand what follows.

Counts relating to TWN

1. Counts 1 to 6 inclusive relate to the first incident in respect of the complainant TWN, count 7 the second incident and count 8 and 9 the third incident.
2. Count 1 is an allegation that the accused requested the complainant to sit on his lap and when she did so the accused rubbed his hand on her breasts on the outside of clothing; count 2 is an allegation that the accused rubbed the complainant's vagina on the outside of her clothing; count 3 is an allegation that the accused immediately after count 2 placed his hand under the complainant's clothing and rubbed the complainant's breasts; count 4 relates to an allegation that the accused then placed his hand under the complainant's dress and rubbed her on the vaginal area on the outside of the underpants; count 5 relates to an allegation that the accused then placed his hand under the complainant's underpants and rubbed her vagina and count 6 is an allegation that the accused took the complainant's hand and placed it on his penis.
3. Count 7 relates to another incident that is also alleged to have occurred in the home of the accused, where on this occasion it is alleged that the accused while playing with the complainant pulled down her outer shorts (but not her underpants) and touched the complainant on the vaginal area.
4. Counts 8 and 9 are part of the one incident that is alleged to have occurred on an occasion when the complainant stayed overnight and was sleeping in the same bed as the accused and his wife. Count 8 relates to an allegation that the accused rubbed his genital area against the complainant and count 9 relates to an incident that the accused took the complainant's hand and placed it on his penis on the outside of the clothing he was wearing.

Counts relating to KN

1. The complainant KN only came forward after the accused had been committed for trial in respect of the allegations in made by TWN. Counts 10 to 21 inclusive were added by way of ex-officio action by the Director of Public Prosecutions.
2. The 11 counts relate to three separate alleged incidents of ongoing conduct. Counts 10 to 14 inclusive relate to the first such incident. Initially the case proceeded on the basis that counts 15, 16 and 17 were the second incident and the remaining counts (i.e. 18 to 21 inclusive) related to the third. However during the course of the evidence in chief of KN it became apparent that counts 18 to 21 inclusive related to the second incident and accordingly the Crown sought leave to amend the indictment.
3. In respect of the first incident, count 10 relates to an allegation that the accused touched the complainant on the breast under clothing; count 11 is an allegation of digital penetration and count 12 relates to an allegation that after telling the complainant to get on her knees the accused placed his penis between the complainant's legs and simulated sexual intercourse to the point where he ejaculated. The accused then told the complainant to go to the garage and she complied. Count 13 relates to an act of fellatio (the accused placing his penis in the complainant's mouth) and count 14 an allegation that the accused took the complainant's hand and placed it on his penis while his penis was still in her mouth.
4. I will go to counts 18 to 21 inclusive next as that is the correct chronological order. These four counts are also alleged to have been part of one ongoing episode. Count 18 relates to an allegation that the accused while in the lounge room with the complainant pulled down her pants and underpants and then positioned himself behind the complainant and placed his penis on (but not in) the complainant's vagina. He then carried the complainant to the kitchen where he put his penis between the complainant's legs and moved back and forth, which is count 19. He then took the complainant to what was described as the toy room where he had the complainant kneel on a chair and he placed his penis between her legs and against her vagina which is the conduct to which count 20 relates. The accused then took the complainant to the bedroom which she occupied when she slept over. Count 21 relates to an allegation that the accused put his penis between her legs and against her vagina and the accused ejaculated on the complainant.
5. I turn now to the allegations to which counts 15, 16 and 17 relate. These too relate to an alleged ongoing incident. The accused went to the complainant's home on a Saturday morning. The complainant enquired as to whether her grandmother was home and the accused assured her that she was. The complainant then went with the accused to his home. It is alleged that the accused put on the pornographic movie, "Debbie Does Dallas". Count 15 relates to an allegation that the accused placed his hand on the complainant's breast under her clothing; count 16 an allegation that he put his mouth over her breasts and began licking them and count 17 relates to an allegation that the accused pulled down the pants and underpants of the complainant, placed his penis between her legs and simulated sexual activity until ejaculation.

Legal directions

1. I will give myself some preliminary directions, which are of a general nature, some directions as to the law that I will need to apply, a summary of the evidence and a summary of counsel's submissions. As the trial is by judge alone there is no necessity for any direction as to the roles and functions of the tribunal of law and the tribunal of fact because I am both.
2. It is for me as the tribunal of fact to assess the various witnesses and decide whether they are telling the truth. I have had the opportunity of seeing the witnesses and have had ample opportunity to observe the manner in which they gave evidence. It is entirely for the tribunal of fact to determine what evidence is accepted and what evidence is rejected.
3. My ultimate decision as to what evidence I accept and what evidence I reject may be based on all manner of things, including what the witness has had to say; the manner in which the witness said it; and the general impression which he or she made upon me when giving evidence.
4. In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if you think fit, accept part and reject part of the same witness' evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness' evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. This being a Judge Alone trial it will be necessary for me to give reasons as to why I accept or reject the whole or part of the evidence of any one particular witness.
5. As the tribunal of fact I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge is s 144 of the Evidence Act, 1995.
6. I have heard addresses from counsel for the Crown and counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. In no sense are those submissions evidence in the case.

Onus and burden of proof

1. Firstly, I go to what is undoubtedly the most important direction of any criminal trial; that is the direction relating to the onus and burden of proof. The direction on the onus and burden of proof applies to all of the counts on the indictment. Before I could return a verdict of guilty in respect of any of the counts on the Indictment that is before me, the Crown would need to prove the guilt of the accused and prove that guilt to the criminal standard of beyond reasonable doubt. The words "beyond reasonable doubt" are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges on the meaning of the expression "beyond reasonable doubt" is neither necessary nor desirable. However, as part of the direction on the onus and burden of proof I direct myself that suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt.
2. The onus and burden of proof remains on the Crown from beginning to end. There is no onus whatsoever on the accused. It is not for the accused to prove that he is innocent; rather it is for the Crown to prove the guilt of the accused beyond reasonable doubt before a verdict of guilty can be returned.
3. If, at the end of my deliberations - having taken into consideration the evidence both for the Crown and evidence led in the accused's case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and counsel for the accused in their address - I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
4. I remind myself that it is vitally important that I clearly understand that an accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, or if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him "not guilty".
5. In the circumstances of this case before I could return a verdict of guilty in respect of any of the counts 1 to 9 inclusive I would need to be satisfied beyond reasonable doubt of the truth, accuracy and reliability of the complainant TWN. Likewise before I could return a verdict of guilty in respect of any of counts 10 to 21 inclusive I would need to be satisfied beyond reasonable doubt of the truth accuracy and reliability of the complainant KN.

KRM v The Queen

1. Before going to the elements of the charges, given that there is more than one charge that I am considering, for more abundant caution I remind myself, conformably with the decision of the High Court of Australia in KRM v The Queen (2001) 206 CLR 221, that because there are multiple charges there is a danger that I might reason in respect of any one or more of the charges that the accused was the kind of person who might have engaged in improper sexual conduct towards the complainant on the other occasions charged or that he must be guilty of something. Such course of reasoning would be entirely wrong, and I direct myself that I must not use or engage in that course of reasoning. Each charge will need to be considered separately and a separate verdict will need to be given in respect of each of the twenty one charges on the indictment.
2. This case brings this direction into sharp focus. As I understand the situation the joint position of the parties was that as the matter was to be heard by a judge alone that the Crown would call each of the complainants in the one trial. I note that had the matter proceeded as a jury trial both complainants would have given evidence in the one trial as the argument as to the admissibility of the tendency evidence was decided in favour of the Crown. There was an issue of the admissibility of tendency evidence that has already been determined. However, given that there is the evidence of two complainants to consider and there is a total of 21 counts to consider, throughout my consideration of the issues in this tria, I will need to be particularly vigilant to ensure that I consider each charge separately and consider the evidence in respect of each charge separately. Of course, as I have already said, separate verdicts will need to be given in respect of each count on the indictment.

Elements of the charges

1. I will now go to the essential elements or ingredients of each of the charges. At the risk of repetition I again note that I will have to return separate verdicts in respect of each of the charges and that separate consideration will need to be given to each of the charges. However, in some matters the essential elements or ingredients are the same as other charges or counts on the indictment and it is convenient to deal only once with the essential elements.
2. Counts 1 to 9 inclusive in respect of the complainant TWN and counts 10, 12, and 14 to 21 inclusive relating to the complainant KN are all allegations of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. There is a difference, noting that the counts relating to TWN aver that the complainant was under 10 whereas the counts relating to KN aver that she was under 16 years of age. This difference is because of legislative amendment. However, the dates of birth and the ages of the complainants were not ever in dispute at the trial.
3. Before I could return a verdict of guilty in respect of any one or more of counts 1 to 9 inclusive I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients: 1. The accused assaulted the complainant; and 2. At the time of that assault the accused committed an act of indecency on the complainant; and 3. At the relevant time the complainant was under the age of 10 years.
4. The various counts aver the age of the complainant but that is a particular. The essential element or ingredient is that the complainant was under 10 years of age.
5. CN, the mother of the two complainants gave evidence (p 2 of 17.7.19) that TWN's date of birth was 25 June 2002 and that KN was born on 8 February 2005. This was not the subject of any dispute at the trial.
6. There does not have to be a separate act of indecency and a separate assault. An indecent assault can be constituted by an improper touching. Whether something is indecent or not is judged by the prevailing community standards of decency. Although a judicial officer I am also a member of the community. I have appeared as counsel in a significant number of trials involving allegations of child sexual assault and I have presided over a number of such trials as a judge of the District Court, including a number of trials by judge alone. I have also presided over a number of matters involving allegations of indecent assault in the Local Court. I maintain I am very well aware of the prevailing standards of decency within the community.
7. I observe however that it was never in dispute at the trial that the alleged conduct was not indecent. The real or live issue is essentially whether as the tribunal of fact I am satisfied beyond reasonable doubt that the alleged conduct in fact occurred. If I am satisfied beyond reasonable doubt that the conduct as alleged did in fact occur then it would follow that I would be satisfied beyond reasonable doubt that the alleged conduct was in fact indecent. I did not understand either counsel to argue otherwise.
8. Before I could return a verdict of guilty in respect of any one or more of counts 10, 12, or 14 to 21 inclusive relating to the complainant KN I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients: 1. The accused assaulted the complainant; and 2. At the time of the assault the accused committed an act of indecency on the complainant; and 3. At the relevant time the complainant was under 16 years of age.
9. I note that what I have already said about there not having to be a separate assault and act of indecency also applies to the matters relating to KN. Likewise I note the evidence relating to KN's date of birth. Again, that was not something that was ever in dispute. Likewise, it was never suggested by counsel for the accused that the alleged conduct was not indecent. Again, the real or live issue is whether the Crown is able to prove beyond reasonable doubt that the conduct as alleged in fact occurred. As with the counts relating to TWN, if as the tribunal of fact I am satisfied beyond reasonable doubt that the conduct as alleged did in fact occur then it would follow that I would be satisfied beyond reasonable doubt that the conduct was indecent.
10. Counts 11 and 13 are allegations of Sexual Intercourse with Child Under 10. Before I could return a verdict of guilty to count 11 and/or count 13, I would need to be satisfied beyond reasonable doubt of the following essential elements or ingredients: 1. The accused had sexual intercourse with KN; and 2. That at the relevant time KN was under 10 years of age.
11. Again, I note that the KN's mother gave evidence that KN's date of birth was 8 February 2005. It is not in dispute that during the time frame of the averment in the indictment in respect of counts 11 and 13 that KN was under ten years of age.
12. Sexual intercourse has an extended definition at law and includes the penetration of a female's vagina by a finger or fingers, otherwise known as digital penetration and it also includes the penetration of the mouth of a person by the penis of the accused, i.e. fellatio. Count 11 relates to an allegation of digital penetration and count 13 relates to an allegation of fellatio.

Markuleski direction

1. This direction applies to where there are multiple counts involving the one complainant. I have made clear a number of times that as the tribunal of fact, I must consider the evidence in respect of each charge on the indictment separately. It follows from that that if as the tribunal of fact I have a reasonable doubt as to the truthfulness and accuracy of the evidence of a complainant in respect of one count involving that complainant as the tribunal of fact I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any of the other counts on the indictment relating to that same complainant.

Inferences

1. This is a matter where I am asked to draw inferences. I remind myself and direct myself in terms of what juries are normally directed on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
2. I remind myself of the illustration routinely given to juries from the Trials Bench Book of the telephone call to a friend. In a criminal trial, as the tribunal of fact, 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 must examine any possible inference to ensure that it is a justifiable inference.
3. In the context of a criminal trial, where proof is required beyond reasonable doubt, as the tribunal of fact I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

CCTV

1. Both complainants gave evidence by closed circuit television from a room remote from the court room and some of the witnesses gave evidence from either a room remote from the court room or remote from Wagga Wagga. No issue was taken with that course by the accused. Again, there is nothing unusual or exceptional about the complainants and the witnesses in giving evidence by way of CCTV or audio visual link. I note that is the manner in which complainants in trials involving these type of allegations is given. I must give the evidence no greater or lesser weight. I must draw no inference adverse to either the accused or any of the complainants. I give myself that same direction in respect of the other witnesses who gave evidence from a location remote from the court room.

KN gives evidence in chief by record of interview

1. The complainant KN gave evidence in chief by way of a pre-recorded interview that was taken at Wagga Wagga on 20 October 2016. The complainant was under 16 years of age at the time and that is the manner in which evidence in chief from persons under 16 years is routinely given in this day and age. I must not give the evidence any greater or lesser weight nor must I draw any inference adverse to either the complainant KN or the accused because the complainant KN gave evidence in that fashion.

Accused gives evidence and calls evidence

1. The accused presented a defence case by giving evidence himself and calling witnesses. That was a course that the accused was entitled to take but it is not a course that the accused was obliged to take. The accused would have been entitled to remain mute and require the Crown to prove its case beyond reasonable doubt.
2. Had the accused remained mute I would have been required to direct myself that no inference adverse could be drawn against the accused by reason of that fact, that there may be good reasons why an accused would not give evidence and I must not speculate on what they may be and that the onus is on the Crown from beginning to end.
3. Later in these reasons I will summarise the evidence of the accused and those witnesses called in the defence case. If having considered that evidence and the submissions of both counsel in relation to it as the tribunal of fact I accept it, then of course I must acquit the accused and bring in verdicts of "not guilty", because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter, which it must prove.
4. If, after having given consideration to the evidence of the accused and the witnesses called on behalf of the accused and any evidence which the Crown asks me to take into consideration, as the tribunal of fact I do not positively accept the evidence of the accused, but that evidence leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then as the tribunal of fact I am bound, in law, to bring in verdicts of "not guilty". In other words, it is not the position that as the tribunal of fact I have to believe that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused and it is never for the accused to prove that he or she is not guilty. The accused has not assumed any onus because he has elected to give evidence.
5. Further, even if I were to reject the evidence from the accused and the other witnesses in the defence case, before I could return a verdict of guilty in respect of any one or more of the counts as the tribunal of fact I would still need to be satisfied beyond reasonable doubt of the guilt of the accused on the material contained within the Crown case alone.
6. On the subject of the accused giving evidence there is one other matter that I wish to make very clear. It is not simply a case of comparing the versions in the Crown and defence case and indicating which one is preferred. As I have already said a number of times the onus of proof is on the Crown from beginning to end to prove its case beyond reasonable doubt.

Other issues

1. The Crown relies on tendency and relationship evidence. Mr Barron seeks directions in accordance with Mahmood v Western Australia [2008] HCA 1 and R v Louizos [2009] NSWCCA 71 in respect of a number of witnesses who have not been called by the Crown to give evidence.
2. I will return to the relevant directions relating to these issues when dealing with the evidence.

Review of the evidence

1. TWN gave an account of growing up in Young and living with her mother and step father until she left to attend university. The accused is the father of TWN's step-father. When TWN was about 7 or 8 years of age she began to stay over at the home of the accused and his wife. She attended a local school which was a couple of hundred metres from where the accused and his wife lived at the time.
2. Going to the first incident to which counts 1 to 6 inclusive relate the complainant gave evidence that she had been visiting as opposed to staying overnight (p 4 15.11.18). She identified the relevant house from photographs. She then gave the following account of the events: Q. What happened, what was the first thing you remember happening? A. So, I remember his hands over the top of my clothing touching my breast and vaginal area and then-- Q. One step at a time, where did he touch first? A. My breast area. Q. Can you describe with which hand? A. Both hands. Q. Which breast? A. Both. Q. Can you describe how he touched your breasts? A. Just rubbing in circular motions. Q. With what part of his hand? A. The palm of his hand. Q. How long did he do that for? A. I can't remember how long it went for exactly. Q. What was the next thing that happened? A. So, after my breast he was rubbing my vaginal area. I'm not sure which hand it was, left or right with the same part of his, his palm and his fingers over the top of my clothing. Q. When you say over the top of your clothing, is the over the top of your dress and your underpants? A. Yes. Q. Do you know how long he did that for? A. Unsure. Q. When he was doing that, what were you doing? A. Just kind of sitting there, wanting it to end. Q. What did he do next? A. He put his hand up my dress and again, touched my breast area with both hands in the same rubbing motion. Q. Do you know which hand he put up your dress? A. No. Q. Do you know if it was one hand or both hands? A. Both. Q. What happened then? A. He then went to my vaginal area again, doing the same thing on the top of my undies. So, rubbing with his palm and fingers, not sure what hand. Q. What happened next? A. Then his hand was down my underpants and the same thing again, rubbing and with his palm and fingers. Q. Do you know how long he did that for? A. I am unsure. Q. Do you know if I was one hand or two hands? A. The one hand, unsure what hand. Q. When that was happening do you remember what you were doing? A. No. Q. What was the next thing that happened? A. He grabbed one of my hands, I'm not sure which one and placed it onto his penis on the outside of his shorts. Q. How were you sitting on him, when you say you were sitting on his lap, how were you seated? A. Like, not facing him. Q. When he put your hand on his penis, how did he do that? Where was his penis in relation to you? A. What do you mean? Q. Was it behind you, beside you, in front of you, where was it, where did-- A. Behind, like, behind me to the side. I was on one, like, one of his knees. Q. He took your hand, put it on his penis, what could you feel? A. I don't know if it was hard or soft, I knew that that's what it was, yeah. Q. What part of your hand was touching his penis or through his clothing, but what part of-- A. Like, my palm. Q. What happened then when he put your hand on his penis, what did he do? A. Not sure. Q. Do you know how long he had it there for? A. No. Q. Do you remember what happened next? A. I just remember, like, either, like, calling out to Vicki or, or saying "Stop" or crying and then it would not continue.
3. In respect of the second incident she said that she was 7 or 8 years of age (p 10 line 5, 15.11.18). The account continued: Q. Do you know what time of year it was? A. Summer. Q. Why do you say it was summer? A. I remember wearing shorts. Q. Do you remember who else was home, if anybody? A. I believe [Accused's wife] was home. Q. You were in the lounge room, what happened? A. I was in the lounge room lying, like, on the floor. [GN] was play wrestling with me. Q. What was he doing when you say play wrestling? A. Just, like, playing around wrestling, like, over the top, you know, I, I don't know how to explain it. Q. What happened? A. So, he pulled down my shorts and was touching my vaginal area with his hands. Q. When you say, he pulled down your shorts, did you have anything on underneath your shorts? A. Yes, I had undies on. Q. When you say he was touching your vaginal area, was that underneath or outside your underwear? A. Outside. Q. Again, how did he touch you, what part of his hand? A. It was with his palms and fingers. Q. What did he do with his palm and fingers? A. So, he was rubbing them on my vaginal area. Q. Do you remember how long he did that for? A. I'm unsure. Q. Do you know how that particular incident ended? A. I don't know how it ended. I only have a general idea of what I would have done.
4. TWN maintained that after the second incident she spoke in general terms to the accused's wife about the accused's indecent conduct towards her and nothing happened after that conversation. The conduct relating to counts 8 and 9 (third incident) is alleged to have occurred before TWN had that conversation with her grandmother. It was put to TWN in cross-examination (p 29/45) that she did not speak to the accused's wife about the allegations but she maintained that she did.
5. When TWN stayed overnight with the accused and his wife she slept in the bed with the accused and his wife. She maintained that she felt safer there as she was worried if she slept elsewhere in the house. On the occasion to which counts 8 and 9 relate TWN gave the following account in her evidence in chief: Q. What was the first thing you were aware of? A. I remember, like, waking up and feeling [GN] rubbing his body up against mine. Q. What part of his body? A. The front of his body. Q. Against what part of your body? A. The front, back and side. Q. What was the first thing you became aware of, where was he rubbing you? A. My back. Q. What did you do when you felt him rubbing your back? A. I changed positions. Q. What did he do when you changed positions? A. Continued rubbing his front of his body up against my body. Q. What part of the front of his body? A. The side - the, the front of his body was on the side of my body. Q. How was he rubbing you? A. Just like rubbing up and down of - not like his - the front of his body on my body. Q. What happened after that? A. I just remember changing positions until like I woke up [Accused's wife]. HIS HONOUR Q. I'm sorry what was that, did you say [Accused's wife].woke up? A. Yes. SOLICITOR ADVOCATE: Until she woke up [Accused's wife].. HIS HONOUR Q. Until she woke up, sorry? A. Yep. SOLICITOR ADVOCATE Q. How did you wake up [Accused's wife].? A. Just by, like, grabbing her and saying "Nan". Q. What did she do when you did that? A. I don't remember, I just-- Q. How long was he rubbing up against you for? A. I'm unsure how long. Q. How many times did you change positions? A. Three or four. Q. What did he do when you changed positions? A. He stopped doing what he did for a little bit, and then continued rubbing his body against mine. Q. When you say "rubbing" how was he rubbing? First of all, he's lying in the bed? A. Yep. Q. Was he lying on his back, side, front, how was he lying? A. On his side, so his - he wasn't - he was facing the middle of the bed. Q. You say that you woke your grandmother up? A. Yeah. Q. What happened after you woke her up? A. I said I wanted to go home. Q. Did you go home? A. Yes.
6. The evidence continued: Q. Apart from those incidents you've talked about, the one in the lounge room on the chair, the one in the lounge room when you're wrestling, him rubbing himself against you in the bed and the occasion where you woke up with something wet on you, were there any other incidents you can recall? A. In the occasion in the bed, the one where he was rubbing his body up against mine, he also grabbed my hand in that occasion and placed it on his penis as well. Q. When he did that, how were you lying? A. Pardon? Q. How were you lying when he did that, at the point in time when he grabbed your hand? A. I don't remember if I was on my side or on my back. Q. When he grabbed your hand, what did he do? A. He placed it on his penis. Q. What was he wearing? A. I don't, I don't remember what he was wearing. Q. Do you remember if he was wearing something? A. Well, he would've had pyjamas on. It was on top of clothing. Q. What could you feel when he put your hand there? A. I don't remember if it was, like, hard or soft. Q. How did you know it was his penis? A. I knew that it was that area of the body that I was touching. Q. What part of you was touching it? A. My - the palm of my hand. Q. What did he do when he put your hand there, what was the next thing he did? A. He just, like, made me rub it, his penis. Q. How? A. In a circular motion. Q. Apart from telling your grandmother that he'd touched you, did you tell anybody else? A. No.
7. There was a celebration to celebrate KN's tenth birthday and to farewell TWN who was leaving Young to go to university in early 2015. The day after that celebration TWN was tidying up KN's room. She found a book in which she found a note, "I hate my pop". That night TWN spoke to KN who on the evidence of TWN said, "Pop's been touching me". KN does not have a memory of that conversation with TWN. The book also contained notes by KN relating to the allegations that she makes against the accused. According to TWN, KN was "crying, like inconsolable" (p 21/47 15.11.18) when they were talking about what TWN had found. It was after these notes were found that TWN and KN told their mother of the conduct of the accused towards them.
8. TWN also gave an account of another incident to which no specific charge relates and which I understand was led as context or relationship evidence. At pp 14-15 of 15.11.18 TWN gave an account of staying overnight with the accused and his wife and sleeping in their bed. She woke to find a sticky wet patch on her stomach. She woke her grandmother and asked if she could get changed as she felt uncomfortable. Her grandmother assisted her in getting changed. The next morning the accused's wife told TWN's mother that TWN had wet the bed.

Direction - context or relationship evidence

1. The Crown also relies on the uncharged acts as relationship or context evidence. There is a very limited use to which I can put this evidence as the tribunal of fact. As context or relationship evidence, the evidence is led to explain why the relevant complainant did not complain earlier, why the counts on the indictment did not come out of the blue so to speak and further to explain why given the frequency with which the conduct is said to have occurred why the complainants cannot be more specific about particular instances of that conduct. The relationship or context evidence cannot be used by me as the tribunal of fact in determining whether any one or more of the counts on the indictment have been proved beyond reasonable doubt.
2. Further, so far as the context or relationship evidence is concerned, it would be entirely wrong and inappropriate for me as the tribunal of fact to engage in a line of reasoning that the accused was the type of person who would commit the offences as alleged against him or that he must be guilty of something. I must be careful only to use the context or relationship evidence in the manner to which I have referred.

Return to review of the evidence

1. Mr Barron cross-examined TWN comprehensively and on a number of occasions asked whether she told anyone of the alleged conduct. She replied on each occasion that she did not - see for e.g. p 30; p 35/47; pp 41-2.
2. It was put and denied that she had in fact wet the bed on the occasion of waking to the wet sticky substance on her. It was also put (p 37/41) but TWN disagreed that the only grandchild who slept in the bed with the accused and his wife was a baby.
3. TWN admitted under cross-examination that she continued to have sleep overs and that she continued to regularly visit the accused and his wife - see for e.g. p 36/3; 41/31. In further cross examination at p 54 TWN conceded without hesitation that it was the accused who was the "main person" who taught her to drive and that he assisted her when she experienced mechanical issues with her car.
4. There was quite extensive cross-examination on the book in which TWN is said to have found the notes by KN relating to the alleged indecent conduct towards her. It was put to TWN on a number of occasions that she had simply made up or fabricated the evidence about finding the book. It was also put to TWN quite strongly that she and KN had "put their heads together" or collaborated in the manufacture of those notes. That allegation was repeatedly denied by TWN - see for e.g. p.44/45; 45/48; 46/1; 46/21.
5. There is, of course, no obligation on an accused to raise any motive for a complainant to fabricate allegations against an accused. It is for the Crown to prove its case beyond reasonable doubt against the accused. However, in this matter the accused not only suggested a motive but suggested that motive quite vigorously to both complainants. It is the case for the accused that TWN was jealous in that there is a suggestion by the accused that she was not treated like the other "natural" grandchildren. It was put to TWN and denied (p 46/35) that she made up the allegations because of jealousy, because she always felt that she was an outsider and not a biological grandchild.
6. On this same issue it was put to TWN and denied that she and KN "put their heads together to write the notes". It was again put and again denied (p 50/5‑14) that TWN told her sister KN to make up the complaints about the accused at her (i.e. TWN's) instigation.
7. The motive being raised by the accused can be considered by me as the tribunal of fact. It is the case for the accused that not only did TWN manufacture her allegations by reason of this alleged jealousy but then was able to persuade KN to likewise manufacture extremely serious allegations against the accused and then proceed to trial with them.
8. The allegations are detailed and this is particularly so with the allegations by KN. Some of the cross-examination of the complainants was directed towards the suggestion that despite the alleged conduct life continued as normal, e.g. the suggestion to TWN that she continued to have sleep overs at the home of the accused.
9. It occurs to me as the tribunal of fact that had TWN been experiencing the jealousy as alleged to the point where she was prepared not only to manufacture these allegations but also persuade KN to fabricate more serious allegations then that jealously would have manifested itself also in other ways (i.e. beyond the allegations themselves), particularly with attitude and behaviour towards the accused and his wife and would have been blatantly obvious to all concerned.
10. There is nothing in the evidence to suggest that TWN had anything other than a quite close relationship with her grandparents despite what she says happened to her when she was younger.
11. I reject the suggestion that the allegations by TWN had their genesis in the jealously as alleged on behalf of the accused.
12. Mr Barron on behalf of the accused puts forward a number of matters which on his submission impact adversely on the credibility of TWN. For example, in her evidence in chief in respect of counts 1 to 6 (first incident) she uses the expression (p 8/34), "…and then the same thing again…" The point made is that they are not the same thing. With respect to Mr Barron this is really a matter of semantics. It seems to me as the tribunal of fact the TWN was describing a rubbing type motion.
13. Likewise when describing that same incident TWN described sitting on the accused's lap and then changed the evidence to being on one of the accused's knees. I note at p 8/50 it was the Crown Prosecutor that used the word "lap" in the question. TWN said that she was not facing the accused. At p 9/9 she said she was on one of his knees but at p 27 she said in answer to a question by Mr Barron and a further question by me that she could not remember. Read as a whole the answers are not inconsistent and in my view as the tribunal of fact do not impact adversely on the credit of TWN.
14. In a similar vein Mr Barron submits on the detail given by TWN in describing the accused taking her hand. At p 8/47 in evidence in chief she said that, "he grabbed one of my hands, I'm not sure which one and placed it onto his penis on the outside of his shorts". Under cross-examination (p 28/4-12) she said it was her left hand. The issue had been raised in evidence in chief and Mr Barron went through the incident quite painstakingly. This, it seems to me as the tribunal of fact is a very minor point in any event and in the general scheme of things taking the evidence of the complainant as a whole does not in my view as the tribunal of fact adversely impact on the credibility of TWN. The painstaking examination of the minutia of the incident is generally not particularly helpful.
15. In respect of the second incident Mr Barron on behalf of the accused submits that the court would have an issue with the credibility of TWN because she cannot recall how that ended. TWN was giving evidence of an incident that occurred some years ago. It is not surprising that she cannot remember how it ended.
16. Mr Barron made the point a number of times in his closing address relating to all of the counts relating to TWN that TWN continued to stay over at the home of the accused and his wife. I note that part of the re-examination (p 50/30) as recited by the Crown in the outline of the closing address that, "They were my grandparents, like of course, they love you and you love them, no matter what…" At some superficial level there may be issue about TWN continuing to stay over. However, it seems to me as the tribunal of fact that answer in re-examination answers that point. When the whole of the evidence is examined it is obvious to me as the tribunal of fact that TWN was wishing to maintain a façade of normality.
17. In respect of the third incident, i.e. the incident to which counts 8 and 9 relate, Mr Barron submits that TWN was fabricating the story because she initially at p 13/43 gave an account of the accused rubbing against her and then a little later in the evidence in chief at 15/28 giving an account of the accused taking her hand and placing it on his penis. The submission continued that if giving a true account it would have been given chronologically. Reading the evidence as a whole I am not sure that it is the same incident being recounted at p 13 and at p 15. However, even if it is, it was still in evidence in chief. It was put globally to TWN that she fabricated the allegations. However, I cannot see in the cross-examination where it was put to TWN that the allegation of the accused taking her hand on this occasion on placing on his penis on the outside of what he was wearing was not in her original statement. She cannot remember whether the penis was hard or soft. At p 39/32 Mr Barron asked, if that had actually happened that would be something you would remember wouldn't it?" The answer given was, "not necessarily". As the tribunal of fact that answer that TWN gave to that question makes perfect sense to me.
18. Submissions are also made that as the tribunal of fact I would have issues with TWN's credibility because of lack of complaint to her mother. I will deal with complaint evidence when dealing with the evidence of the mother of the two complainants. However, the absence of complaint does not mean that the allegations are false. This is completely consistent with what I have already described as TWN seeking to maintain the façade of normality. In any event she complained to the wife of the accused. It was at the home of the accused where these events are alleged to have occurred.
19. On the issue of the complaint made by KN, TWN said (p 47/5) that all KN said was "Pop has been touching me" and she pointed at her vaginal area.
20. TWN was a very impressive witness. I have often observed that it is far more difficult to express in words why as the tribunal of fact a witness is accepted rather than rejected. TWN remain composed and answered the questions in a very matter of fact and direct fashion. There was never a hesitation in her answering the questions. The answers were always succinct and responsive.
21. I agree with the Crown's submissions that TWN gave a detailed account of each of the incidents. Further, it is noteworthy that the accused's wife was nearby on each of the occasions. As the Crown correctly submits, if the allegations were fabricated it would have been easy for TWN to simply say that the accused's wife was not in the house. There are no suggestions of force or threats by TWN in her evidence.
22. Further, there was no particular animosity demonstrated by TWN towards the accused or his wife in her evidence. I note that part of the re-examination (p 50/30) as recited by the Crown in the outline of the closing address that, "They were my grandparents, like of course, they love you and you love them, no matter what…"
23. I have carefully considered the matters raised by Mr Barron on behalf of the accused as to why I should reject or at least have a reasonable doubt about the evidence of TWN. I have gone into some detail in respect of a good number of those submissions and dealt with the evidence. At the end of the day and after careful consideration of those issues I cannot perceive any particular reason to entertain a reasonable doubt about the truth, accuracy and reliability of TWN.
24. I now go to counts 10 to 21 inclusive, i.e. the allegations made by KN. The bulk of KN's evidence in chief was by way of pre-recorded interview and I remind myself of the directions already set out in respect of that issue. I note the effect of the decision of NZ v R (2005) 63 NSWLR 628 however I note that neither party had any objection to me retaining a transcript of the record of interview to assist in the preparation of these reasons. It is alleged there are three distinct or separate episodes of offending. Counts 10 to 14 inclusive relate to the first, 18 to 21 to the second and counts 15, 16 and 17 to the third. I have already explained that the Crown sought and obtained leave to amend the indictment. In this regard I note also the judgment given ex tempore on this issue on 19 November 2018.
25. KN's date of birth is 8 February 2005. In 2010 the accused and his wife were living at an address in Young. KN attended a school that was very close in proximity to the house. On one occasion not long after KN had commenced school the accused collected her from school and took her home. The account in the pre-recorded interview is a little disjointed and precisely in the same order as the counts on the indictment.
26. At Q/A 129 KN said that at the beginning of this incident the accused said to her something like, "This will be fun, don't worry, this isn't wrong, everyone does this". He then pulled his pants down and her pants down -p 61 Q/A 130. He then touched her on the chest area or her "boobs" - see Q/A 130-137. The touching was under the clothing - Q/A 139. This is the conduct to which count 10 relates.
27. Count 11 is an allegation of digital penetration detailed at Q/A 144-155. She gave an account of his hand drifting down to her stomach then to her vaginal area, him rubbing in a circular motion and then putting his fingers in her vagina. She could feel the fingers on the inside. He asked "Do you like this, does this feel good?" She kept telling him to stop but he did not.
28. Count 12 is an allegation of an aggravated indecent assault, the details of which KN recites at question 62, 63, 64 and further detail is given at question 158 and continuing to 189. The accused positioned the complainant on her knees in front of the lounge and put his penis between her legs and he moved back and forth. KN was careful to say that the accused's penis was touching her vagina but did not go inside. She said it felt a long time. She gave an account of the accused breathing heavily and saying, "Yeah, yeah, yeah, yeah" after which some white or yellow stuff came out of his penis.
29. The answers to questions 181 to 183 are quite compelling in my opinion. Q181: Penis. And how do you know that happened? A: Because I was looking down like that, and he, and he was, he was, he was going fast at the start, moving back and forth, and then he started slowing down. Q: Yep A: And then, us, and then his breath stated going (DEMONSTRATES VERBALLY) - like really heavy and then I looked down then white stuff was… Q: Where did it go? A: It went over the lounge, in between my legs and on my thighs
30. Clearly the complainant KN was describing in some detail a male experiencing sexual climax and ejaculation. I remember the playing of the recording. The demonstration was graphic. The accused used a face washer to wipe up the ejaculate. The Crown describes the account in the outline of submissions as "extraordinarily detailed account". It is difficult to disagree with that description.
31. Immediately following this, KN pulled up her pants and the accused told her to go to the garage, which she did. (Q/A 64). The accused went to a briefcase and produced a pornographic magazine and then engaged in an act of fellatio by putting his penis into the complainant's mouth. The complainant marked on a photograph the area of the garage from where the briefcase came - see pp 79-80 of 19.11.18 At Q/A 191 she said, "And he opened it, and he got out a dirty magazine, and he said, and he told me to look at them, and then placed his penis in my mouth and for me to hold it like that". At Q/A 213-217 she describes the accused forcing her head onto his penis.
32. Count 14 followed immediately thereafter. This is another allegation of an aggravated indecent assault. The accused took the complainant's wrist and placed her hand on his penis and made her "go up and down" - see Q/A 218-227. This happened for a short time because the accused heard a car. Further detail was given that the accused's wife returned home in the car and sounded the horn. The accused quickly pulled up his pants. KN ran upstairs and went to the bathroom and was crying. She told her grandmother (Q/A 246) that she was not feeling well and that she wanted to go home.
33. Counts 18 to 21 inclusive are the next matters chronologically and I will therefore go to them before going to counts 15, 16 and 17. When the matter commenced it was understood that counts 18 to 21 inclusive related to the third of three episodes of alleged offending towards KN.
34. KN said in her evidence at p 82 line 27 to p 84 line 10 the following: Q. The first incident that you talk about, where you ended up in the garage. A. Mm‑hmm. Q. The second incident, was that before or after that one, the garage incident? A. After. Q. Do you know how long after? A. No, sorry, I don't. Q. Do you know how old you were then? A. I think I had just turned five, because my birthday is in February. So it was after February, maybe. Q. Talk about in positioning you so that you were kneeling against the lounge. A. Yes. Q. I think in the video you demonstrated that, how you knelt? A. Yeah. Q. Looking again at photograph 11. So there's the lounge that you describe being on the wall on the right‑hand side of the photo? A. Yeah. Q. Where the other lounge is, where the pictures are on the wall, that's where the television is? A. Yeah. Q. [Accused's wife] and [GN]'s chairs were to the bottom of that photo. A. Yeah. Q. But you can't see that area. A. Yep. Q. Where do you say you were when he knelt you down against the lounge? A. I - I was on the lounge across from the window. Q. So in this photo where the two blue chairs are? A. Yeah. Q. That's how that particular incident started in the lounge room? A. Yeah. Q. Then you say that he moved you to different areas in the house? A. Yes. Q. That was this house that's depicted in the photographs? A. Yes. Q. You spoke about another incident. A. Yes. Q. That was an incident that happened in [Named] Road? A. [Named]. [Named] Street. Q. It's [Named] Street? A. Mm‑hmm. Q. I'm going to ask for you to be shown envelope number 1. Do you see in there that there's 14 coloured photographs? A. Yeah. Q. Again these were photographs that you were shown last week? A. Mm‑hmm. Q. Sorry. Page 14 is blank so really it is 13 photographs. A. Yeah. Q. Do you recognise the house depicted in those photographs? A. Yes. I do. Q. What house is that? Which-- A. That's [Named] Street. That was down the road from [Address], where I lived. Q. This is where you say the third incident happened? A. Yes. Q. This is where you were at home and the accused came around and asked for you - if you wanted to go to his house? A. Yes. Q. Looking at first of all photograph 1 are you able to say - what room is that in the house? A. That was the front lounge room.
35. It was this evidence that led the Crown to seek to amend counts 18-21 inclusive to aver that the conduct occurred in 2010 when KN was 4 or 5 years of age. This application led to the matter being adjourned. Difficulties then arose finding suitable dates for the availability of both advocates.
36. The ongoing incident to which counts 18-21 relate has been referred to the "different rooms incident". It is alleged that the accused engaged in sexual activity with KN in various rooms of the house in which he was then living.
37. KN's account of count 18 appears to commence in answer to question 477 of the record of interview. She describes being in the lounge room of the house; the accused pulled down her pants and placed his penis between her legs. The account continued that he placed his penis on her vagina but not inside and that she was facing away from the accused When asked at Q 494, "OK and did white stuff or yellow stuff come out of his penis on that occasion or not?" She answered, "Um, yes, but he kept moving me from place to place…(A 495) And then once we finally got to mine and [AAA]'s room, then it came out". The issue of ejaculation is the subject of further questions and answers - see Q/A 534 and continuing.
38. I make the observation that the account given by KN again gives a clear account of ejaculation but moreover the account comes across as being somewhat matter of fact leaving me with the impression that it was not the first time that she had witnessed that occur.
39. From the lounge room they went to the kitchen - see Q/A 498-9. In answer to q 499 she said, "He did the exact same thing, but this time he laid me down like this and put and did the exact same thing, put his penis in between my legs on vagina not in it". The accused's hands were preventing KN from moving - see Q/A 503. She went on to explain that he had her hands with one of his hands and her ankles with the other hand.
40. Counts 20 and 21 are described in answers to Q/A 513 and continuing. From the kitchen they went to the toy room where there was a really old chair and the accused obliged KN to face the chair and did the same thing, i.e. place his penis on her vagina. From the toy room they moved to the bedroom that KN and others shared when they were staying at the accused's home. At Q/A 521 KN says, "He did the exact same thing as he did in the toy room, and the lounge room and forced me on my knees to face…the lounge, the bed with my face on the bed". The accused carried KN to this bedroom - see Q 524-5. KN's underpants that had been around her ankles had fallen off.
41. After describing the events to which counts 18-21 relate KN gives an account of the accused engaging in correction so far as her co-operation was concerned. The following appears at p 60 of the transcript of KN's record of interview: Q. 550: Do you remember what he would, what he said on this particular day? A: I said, Oh, I want to see [IM] and [AM] (cousins)? And then he's like, No, you're not going to. I'm like, and I yelled and said, I want to see [IM], and [AM]. And then he's like, you know what you have to do. And I'm like, Yes I do, I don't want to. And then he's, like, and then, he walked over and he pulled my pants down and proceeded to do--- Q. 551: OK. So did that happen on every single, single occasion, or just some occasions? A: Um, every single occasion that I was left alone with him
42. Further, at Q 592 KN said that apart from the specific instance of which she gave an account there were other occasions on which the accused put his penis in her mouth. At Q 644 she gives an account of there being other occasions of the accused placing his penis between her legs. In answer to Q 645, KN said that on each occasion "white stuff" would come out of the accused's penis.
43. The evidence that I have just detailed that does not relate to any particular count was led by the Crown as relationship or context type evidence. I repeat the warning already set out in respect of the complainant TWN as to the very limited use to which this evidence can be put. The evidence cannot be used by me as the tribunal of fact in making a determination whether any one or more of the charges on the indictment are proved beyond reasonable doubt. The context or relationship can only be used to explain why the specific counts did not come "out of the blue" as it were or to explain why the complainant did not make an earlier complaint or to explain the lack of specificity in respect of any of the counts on the indictment.
44. Counts 15, 16 and 17 relate to what was generally referred to in the course of the trial as the "Debbie Does Dallas" incident.
45. The accused would regularly visit the complainant's home on a Saturday morning (Q 284 KN's ROI). On one such occasion the accused drove KN to his home and told her that he wanted her to show her a "cool western". The following is the answer to question 286 of KN's record of interview: "It was Debbie does, does Dallas, I think it was, yep. And he made me watch it, and it was about these cheerleaders who needed to raise money to go away, and they had this business where they did, did sexual things with other meN, and um, and they're, and that, because they were raising money to go away and they did sexual things. And it made me really uncomfortable, and then he, he was touching himself, and then he came up to me and started touching me. And then pulled my shirt up and put his mouth over my breasts and then, and then I pushed him away, and got up and went to the toilet. And I was in there for a little while, and I peed, and I came back out. And, um, then I sat back down, and he got up and walked over to me again, and the movie was still playing. And he pulled down his pants in front of me, and grabbed my hand and, and made me touch his penis."
46. Count 15 relates to the allegation that the accused touched KN on the breast on the outside of clothing, count 16 relates to the allegation that the accused put his mouth over the complainant's breast and count 17 relates to an allegation that the accused placed his penis between the complainant's legs and ejaculated. The answers of KN are expanded upon in the record of interview following the answer to question 286.
47. Count 15 is expanded upon at Q/A 359-363 and count 16 expanded upon at Q/A 369-374. At Q/A 375 and continuing KN gives an account of the accused pulling her pants and underpants down, forcing her to her knees saying, "get to your knees". In answer to question 388 the following appears: "And then he put his penis between my legs and in my vagina, like I said, and then he proceeded to go back and forth, back and forth, back and forth, back and forth until white stuff came out. And the he got the face washer, and cleaned it again".
48. At Q/A 393 KN said it was exactly the same as the last time; in answer to Q 394 said that the penis did not go into her vagina and at Q 396 said touching her vagina. KN also gave an account at Q 390 of, after cleaning up the ejaculate, the accused opened the blinds. KN's brother [EN] was outside on his bicycle. KN heard [EN] "chucking skids" after the accused had opened the blinds. I observe that the evidence of the accused opening the blinds is a particular and as the tribunal of fact in my opinion a significant detail.

Impression of KN as a witness

1. The cross-examination of KN by Mr Barron on behalf of the accused was very thorough and painstaking. Every possible inconsistency was examined in minute detail. Mr Barron submits that there were numerous inconsistencies in the evidence of KN that would lead a tribunal of fact to reject the account of the alleged improper sexual conduct by the accused as a fabrication or at the very least lead the tribunal of fact to have a reasonable doubt about that evidence.
2. Initially in answer to questions by investigating police KN said that the first incident occurred when she was three. In answer to question 61 she says, "OK. Well, I don't remember how it started or how old I was, but I do remember when I was about 3 years old I was at his house where, what street was it near [Sydney suburb]?" When prompted it was [Named] Street KN continued, "[Named] Street and their house, I could walk from school to their house and sometimes they would pick me up from school And one day he came and picked me up, but Nan, Nan [Accused's wife] wasn't there, she wasn't at home. And he pulled down his pants in front of me, and then he proceeded to pull down my pants and my underwear and touched me in my chest area and in my vagina".
3. Mr Barron makes the point that KN simply would not have been at school when she was three years of age. That much can be taken as being correct. However, the accused and his wife did live at an address in [Named] Street that was very close to the school that KN attended. Under cross examination (p 170 see generally lines 1-17) the accused said that the school would have been two to three minutes' walk from the house. The accused strongly denied ever picking up the complainant KN from school essentially saying that he simply did not have the opportunity to do what she alleges.
4. However, as the tribunal of fact it occurs to me that if a child was so intent on fabricating these allegations against the accused it is extremely unlikely that such an obvious error in indicating the age of three would be made.
5. On the issue of the age, Mr Barron on behalf of the accused seeks to make some capital out of KN saying that she was three and then "changing" her version to her being older. The submission was put that this detracts from KN's credibility. The following appears at Q/A 67-69 of MFI 2: Q 67: OK. You said, um you initially said that you thought you might've been three? A: Uh-huh. Around about three. Q: Around about three A: It could have been five, three, or five Q: OK A: But I was toddler.
6. It occurs to me that KN was simply saying she was quite young. In any event, it is more than tolerably plain that KN maintains that counts 10 to 14 inclusive occurred at a time soon after she commenced kindergarten. The same applies to KN's evidence as to precisely when it was that the conduct to which counts 10 to 14 relate. The following appears at Q/A 83 -86 of MFI 2: Q 83: Do you remember what class you were in on this particular day this happened? Do you remember--- A: Was in--- Q 84: --- A: ---kindergarten definitely. I think it was like, my fifth day at kindergarten. Q 85: OK. What makes you think that? A: Because I was new to the school, I didn't really know many of the places, I didn't have that many friends, so I couldn't really talk to anyone. Um and then, I remember I was upset 'cause no-one would talk to me and that, and that he hugged me and walked me down to the house. Q 86: OK. So you think it was the beginning of kindergarten? A: Uh-huh
7. When read as a whole KN is merely saying that the conduct occurred at or near the beginning of kindergarten. Further, as the tribunal of fact I am of the opinion that there is a real "ring of truth" about that portion of the answer about her being upset because no one would talk to her and that he hugged her.
8. Further criticism is made of KN's evidence when the answers to questions 61 and 119-120 are compared. The order of events is reversed. This indicates, it is argued, that the allegations are manufactured. There is also the issue of precisely when the conduct is said to have occurred, i.e. whether it was the first or fifth day of kindergarten or some other days. Connected with this is what KN was wearing - i.e. sports uniform or other uniform.
9. Submissions for the accused continued that there was also uncertainty as to the number of the fingers used by the accused in respect of count 11, i.e. the allegation of digital penetration. The submission at least as I understood it was that this too is an indication that the allegations are false. The following appears at p 113/13-29: Q. He didn't touch your vagina either, did he? A. He did. Q. Pop at no stage inserted his fingers in your vagina, did he? A. He did. Q. How many fingers do you say he inserted in your vagina? A. I can't remember. Like, I blocked out most of it. Q. But you're certain it was a multiple? More than one? A. Could have been, yeah. Q. Could have been, so you're not sure? A. I'm not sure. Q. The reason you're not sure is because it didn't happen, isn't that right? A. No.
10. Another example of inconsistencies relates to count 12, i.e. the allegation that the accused placed his penis between her legs. Mr Barron drew attention to p 117/35 where KN was unsure of the direction she was facing yet in her evidence in chief she was facing the lounge. Further in respect of this count the submissions continued that in her evidence in chief (Q/A 169) KN said that the accused's penis was there (meaning at her vagina) for 30 minutes. It was put on behalf of the accused that this defies logic and common sense,. As the tribunal of fact it occurs to me that the complainant was saying no more or less than it seemed to her to be taking a very long time.
11. It was put to KN but denied that her father had a collection of pornographic magazines. KN said that she did not know (p 130/26). It was also put to KN that her father had a "rude movie collection too". KN said "No" to that suggestion (p 130/29). I note that it was not suggested to KN that she had seen the scenes of "Debbie Does Dallas" as she described somewhere else such as at home.
12. The issues of the "rude magazines" and "rude movies" were not pursued with any other witness, in particular the mother of KN and wife of KN's father. In these days of the internet collections of pornographic magazines are probably rare in any event. Mr Barron sought a direction in relation to absence of evidence from KN's father - as well as a number of other witnesses. I will return to this issue later in these reasons.
13. It is put that it is highly unlikely that anyone intent on engaging in inappropriate sexual conduct with a young child would do so with the garage door open. The Crown's response is that if the complainant was going to fabricate the allegations it would have been very easy for her to say that the garage door was closed. Submissions were also made about the logistics and mechanics of counts 13 and 14 occurring.
14. On KN's account her grandmother, the wife of the accused, drove up to the house and sounded the horn. KN maintained that she went up the stairs and locked herself in the bathroom. At p 123 on 16 July 2019 there appeared to be some criticism of KN for running from her grandmother, who could have saved her from what was happening.
15. Mr Barron makes an appropriate criticism about the leading questions being asked by the investigators so far as counts 18-21 are concerned. Again, submissions are made directed towards the unlikelihood of these allegations being true given what the complainant said about the manner in which they occurred, i.e. being carried from one room to the other.
16. To my mind there is one issue that resolves the issue as to whether KN was fabricating her account: namely the very graphic and highly detailed description of the male sexual climax and ejaculation. The Crown draws attention to this in the outline of the closing address. In particular I note the answers to questions 181 to 183 inclusive of MFI 2 that I have already extracted when dealing with KN's evidence in chief. I note also Q/A 186 of MFI 2, namely, "Did he wipe it off you as well?" to which KN replied "Uh-huh". Question 187 is "Yep. And the lounge?" to which KN replied, "Uh-huh". See also Q/A 188 namely, "Did he wipe it off anywhere else?" The answer was, "No, 'cause it was nowhere else". A child of the age of KN at the time of the interview simply should not have known about ejaculation. I found not only the account of the ejaculation utterly compelling but also the account of the accused cleaning up afterwards.
17. Mr Barron asked rhetorically in his address, "From where did the face washer materialise?" Face washers are common commodities in homes. Something like a face washer is an obvious object to use for the cleaning up of the mess described by the complainant.
18. The same issue arises with counts 18 to 21 on the indictment. Again, as the Crown submits, KN gave a particularly detailed account of the accused ejaculating. I have already extracted Q/A 494-495 when dealing with the evidence in chief relating to these counts. I have also referred to Q/A 534 and continuing on the issue of KN describing ejaculation. As the tribunal of fact the answers to questions 538 and 539 appeared to have a particular ring of truth given in particular the content and the matter of fact manner in which the issue is described: Q 538: And where did that go? A: It went all over me and all over the bed. Q.539: OK. And what did he do? A. And then he got a face washer and cleaned it up.
19. It was at that point of the interview that KN went on to detail the accused contacting RM and arranging for her to see her cousins. To my mind there is real substance to the argument advanced by the Crown that this detail of contacting RM is not the type of "superfluous detail" one would expect from an 11 year old child who was intent on fabricating these series of allegations against the accused.
20. Returning to the issue of KN describing ejaculation, as the tribunal of fact I found the few answers in re-examination at p 173 of 16.7.19 quite compelling: Q. I refer in that incident to "cleaning something up"? A. Mm-hmm. Q. You were asked some questions about "that being on the lounge"? A. Yes. Q. Can you describe what it was that he cleaned up? A. It's that stuff that came out of the tip of his penis, I can't - I don't know what it is. Q. What was he doing immediately before that came out? A. He was like moaning kind of and saying yeah a lot and then his breathing was very heavy and then it came out.
21. In particular I found that part of the answer at lines 16 and 17 very compelling indeed in that, "It's that stuff that came out of the tip of his penis, I can't - I don't know what it is".
22. KN also gives a graphic account of ejaculation when describing count 17, which is one of the counts of the "Debbie Does Dallas" incident. I note that Exhibit J is an extract from Wikipaedia setting out the plot of the movie. KN gave a very detailed account of the plot it would seem. Clearly she had seen the movie. It was suggested in cross-examination to KN that her father had a collection of pornographic magazines. She said that she did not know. As I have already pointed out this was not pursued with the complainant's mother. I do not see in cross-examination that it was suggested that she saw the movie "Debbie Does Dallas" in other circumstances.
23. Mr Barron makes a number of submissions relating to what in reality is minute detail of KN's evidence leading to the primary submission that as the tribunal of fact I should reject the evidence and the secondary submission that even if the evidence is not rejected outright I would nevertheless entertain a reasonable doubt about the truth, accuracy and reliability of KN.
24. Time and time again in the course of KN's cross-examination questions were put to her in terms of, for e.g. at p 154/34, "Again, I'm suggesting the reason why you've made those inconsistent statements is because you're making this up?" KN replied, "I'm not". Appropriately, the Crown took objection to the repetitive nature of that line of cross-examination. The cross-examination of KN was lengthy and searching. I had more than ample opportunity to observe her and the manner in which she answered the considerable number of questions.
25. Further, there was considerable cross-examination of KN to the effect that if in fact the accused had been perpetrating the sexual abuse as she alleges she would have not gone near him or stayed away from him. The Crown in the outline of submissions refers to part of the evidence at p 129/37 et seq of 16.6.19. That portion of the evidence to my mind is quite significant. I will extract a little further than what the Crown did in submissions: Q. And yet when your father got there you still got within arm's length of your pop after he'd done those things to you, you say? A. Yeah. Q. I'm suggesting to you that if that had actually happened you would have been staying a mile away from your pop. You wouldn't have gone anywhere near him, would you? A. No, I was too - I was like - I had to be near him so it looked normal, because I was too scared if someone found out I'd be the one to get in trouble. Q. Well it already didn't look normal, did it? On your version, you've run up the stairs crying and locked yourself in the toilet, so nothing looks normal already, does it? A. No. Q. So you weren't looking - being normal by being near your pop, were you? A. I don't understand. Q. Okay, well I'm suggesting to you the situation was already abnormal on your version, wasn't it? A. Yeah. Q. Yes, so by being near your pop, you weren't making things normal, were you? A. I don't know. Q. Or you would do on your version would be creating danger for yourself, correct? A. I, I don't understand. Q. I'm suggesting to you it would not be natural for you to go near your pop after he'd just done the things you say he did. Do you agree with me or disagree? A. Yeah, I agree. Q. And yet on your version you did that? You went-- A. I did. Q. --near him within arm's length so that he could pull you aside? A. Yep. Q. Your father has a rude magazine collection, doesn't he? A. I wouldn't know. Q. And your father has a rude movie collection too, doesn't he? A. No.
26. This portion of evidence is significant as it in my opinion clearly demonstrates the strange mixture of emotions that KN was obviously feeling about the situation. The evidence to my mind has a particular ring of truth about it.
27. Quite frankly, KN in my opinion was a very impressive witness. There were the odd inconsistencies as one would expect with any witness, particularly a child witness. However, none of those inconsistencies are such that cause me as the tribunal of fact to entertain a reasonable doubt about the truthfulness accuracy and reliability of the complainant KN. Put simply, I cannot perceive any reason on the evidence taken as a whole to reject her evidence.

TWN finds notes written by KN and complaint evidence

1. Connected with the issue of complaint by both TWN and KN is a series of notes written by KN that were found by TWN. The evidence of TWN (see p 17) is that the day after the party at her home - i.e. the "joint" party for KN's 10th birthday and her leaving to go to university - she was in KN's room tidying or cleaning up when she came across some notes. Q. What did you notice? A. So there was bits of paper and everything like that. There was books out. There was an A4 note, like ruled line book in the drawers and stuff. There was some on the ground and I was just picking them up and putting them back into her desk drawers, yeah. Q. Did you open up that book? A. Yes. Q. What did you see when you opened it up? A. I flicked through the book, some of the pages weren't written on. There was a few notes written by [KN] in there, they were on different pages. They weren't written after one another and it was scattered throughout the book. Q. Did you notice what that writing was about? A. Yeah, so there was - the first one that I saw was a note that said "I hate my pop" on it, and I thought that was a bit weird. And then that's when I kept flicking through the book.
2. The notes became exhibit B in the trial. I note the evidence of TWN at p 17/50 but KN said at p 87/30 of 19.11.18 that the notes as shown to her - i.e. the same order as they appear in the exhibit - were in the order that she wrote them. The notes (as in the order in the exhibit) say: "I dream Fred[d]y is in my hallway. I dream that something is under my bed and in the hallway I dream that I am going to get stolen and raped then killed but not just in a dream but real life. I dream that when I am running down my hall way their [sic, but read there] is a ghost chasing me. I dream that when I am my pool a shark is trying to get me [page 2] Dear book - I keep having scary dreams like it the zombie apocolips [apocalypse] and kills my family except me and my pop and my pop makes me have sex with him like I all was [always] do in real life. [page 3] I hate my pop"
3. In her evidence in chief KN said (pp 86-87) that she wrote things down as she had been having nightmares as family members told her that writing things down might help those nightmares go away. At p 87/15 of 19.11.18 KN said that the notes were written in an integrated English book.
4. TWN kept the notes until later that day. TWN collected KN from school (p 19/7 of 15.11.18). TWN's evidence (p 19 15.11.18) continued to the effect that after collecting KN from school she took her straight home and called her into her room telling her that she wanted to talk to her about something. When TWN produced the notes KN began to cry. The following appears p 19 15.11.18 Q. Did she say anything to you? A. She said, "Pop's been touching me," and I said to her, "It's okay," like, "It happened to me as well, but we have to tell mum about it." And she said that she didn't want to talk to anyone about it. Q. When you said to her, "It happened to me too"-- A. Yep. Q. --apart from your grandmother, [Accused's wife], up to that point, had you told anybody else about your grandfather touching you? A. No. Q. You told her that you had to speak to your mother? A. Yep. Q. What happened next? A. She was crying, and mum wasn't going to get home until a bit later. My step-dad was at home, and she didn't want to speak about it, so we went to Big W, just to get her out of the house. And then we - by the time we got home, mum was home from work. Q. What happened when mum got home from work? A. [KN] just went down to her room and I told mum, yeah, like, it's-- BARRON: I object. SOLICITOR ADVOCATE Q. You can't say what you said to mum about [KN]. A. Okay. Q. But you went with mum and [KN] to Woolies? A. Yeah, so mum asked me to get [KN] to go to Woolworths with her. We stopped at the train station and mum asked [KN] about the notes.
5. Mr Barron raised an objection that this evidence was not given by KN. However, the girls' mother, CN, did give evidence of the complaint in similar terms to TWN. CN gave an account (p 14 of 17.7.19 and continuing) of going to her (i.e. CN's) mother's house that day and TWN was there. TWN handed CN the three sheets of paper and told her that she needed to read them. TWN told her mother that she found the notes when cleaning KN's room. CN's evidence on the subject is to be found at p 15 and continuing of 17.7.19: Q. What happened then after you read them? A. I asked [TWN] could she pick [KN] up from school that day. I didn't believe that [KN] would actually speak to me but she might have a better chance of talking to [TWN]. Q. When did you next see [KN]? A. When I finished work. Q. What time did you finish work? A. 5 o'clock. Q. What did you do when you got home? A. So I went straight home. [TWN] was in her room. I went to her room and she said, "You really need to talk to [KN]". I then asked both [TWN] and [KN] to come to Woolworths with me and I left [TN] and [EN] at home. On the way to Woollies - Woolworths, I stopped at the railway station and parked and asked [KN] if what she had written-- Q. Just take your time. A. If what she had written in the notes was correct. Q. You pulled the car over? A. Yes. Q. You said that it was near the railway station? A. There's a car park in the railway station. Q. Do you know about what time it was that you pulled up near the railway station? A. I finished work at 5, was only home long enough to have a quick conversation, so 5.30 possibly quarter to 6, I'm not 100% sure. Q. You asked her if what was in the notes was true? A. That's correct. Q. What happened then? A. She said, "Yes". She got upset. I got out of the front of the car and got back into the back of the car with her. I asked her did she understand what sex was-- BARRON: Sorry, again I'd ask if we could have first person conversation as far as possible. I realise it's difficult. HIS HONOUR: Well, "I asked her did she understand" - well that's first person so far, Mr Barron. Q. Yes, go on I'm sorry. SOLICITOR ADVOCATE Q. Just, when again - and it's just one of those rules in court, when you're giving evidence about a conversation, you have to say the words as if it's the person speaking them. So, when you say, "I asked her", the exact words that you used as if you were saying them now? A. "Do you understand what sex is?" "Yes". Q. Who said, "Yes"? A. [KN]. Q. What was the next thing that happened? A. Sorry. Q. It's okay, just take your time. So [KN] said, "Yes"? A. That's correct. Q. What was the next thing that happened? A. I continued to talk to her. "Did you put - did he put his penis inside you?" Q. Who did you say that to? A. I said that to [KN]. [KN] answered, "No". [KN] then said, "He put his fingers inside of me and his tongue and that he put his penis in my mouth". Q. When she was saying those things to you, how was she in terms of her demeanour? A. She was crying and she was upset. Q. What happened next? A. I got upset. She asked me to take her to the police station. I said, "No, I wanted to talk to dad". We then went home. Q. When you got home, what did [KN] do? A. I sent her with my son and [TWN] to my mother's. I asked [TN] to come for a drive with me.
6. CN and her husband went for the drive. KN stayed at home the following day. During that following day CN asked KN how long it had been happening to which KN said for as long as she could remember (p 17 of 17.7.19). At p 17/36 of 17.7.19 CN said: "She obviously - she got upset. There was no more conversation, I could not get any more out of her other than the same thing. 'He put his penis in my mouth. He put his penis between my legs. He never put his penis inside me. He put his tongue inside me. He put his fingers inside me', but other than that I could not get any more conversation out of her…"
7. After the complaint was made CN and her husband effectively stopped contact with the accused and his family. There were apparently a number of calls and messages as to why this was so - see p 18 17.7.19. CN and her husband TN went to the home of the accused. The accused's wife accused CN of being jealous of [IM] - a young infant of the extended family that had recently been born - and of being a "homewrecker". She handed the three pages from KN to the accused's wife and she asked him whether it was true. The accused said, "Don't be silly". CN said to her mother in law, "Your husband was putting his penis in my daughter's mouth". With that the accused's wife became angry and punched the wall. CN and TN then left. (See generally p 19 of 17.7.19)
8. Under cross-examination CN said that she received the notes as loose pages and not part of a book (p 32/23). There was also cross-examination as to precisely what it was that was said between CN and KN. At p 33/35 of 17.7.19 CN said that her best memory is that in the car near the railway station she asked KN whether what she had written was correct. It was put to her that in her statement she asked KN, "Has [accused] been making you have sex with him". She said (p 22/44) "No that's not correct but I can't recall exactly what point of the conversation that was had at". There was further cross-examination about other inconsistencies between the evidence and the statements that CN had made to police.
9. The fact remains however that the evidence is quite clear that TWN finding the notes that are contained within exhibit B and handing those to her mother initiated the complaint by KN. It is virtually inevitable that there would be some variation between the statement and the evidence. If there was not it would give the impression of the statement being learned by rote.
10. At p 43 of 17.7.19 Mr Barron suggested to CN that she had influenced both TWN and KN to make false complaints against the accused. This was denied.
11. There was a great deal of cross-examination directed to KN as to the creation of those notes that became exhibit B. She said (p 162 16.7.19) that she could not remember when she started writing things down. She thought but did not know it was maybe about a month before TWN found the notes.
12. KN agreed that she started Year 5 in 2005 and then at p 163/32 of 16.7.19 she was asked, "You hadn't started year 5 by the time you saw [sic but read say] you started writing the book. Agreed? The answer is "Agreed". The following appears at pp 164-165 of 16.7.19: Q. You were at the start of year 5 so you wouldn't have had any old year 5 books, would you? A. No, but I didn't need that book that I had. Q. So you hadn't started school yet for the - sorry, when you started writing in the book, you hadn't started school yet for 2015, had you? A. No, I don't think so. Q. If it was a month before or more or less a month before 9 February, you would - school doesn't start until the end of January, does it? A. No. Q. You wouldn't have started year 5 yet, would you? A. No. Q. You wouldn't know what book you do or don't need for year 5, would you? A. No. Q. Yet you say you were writing in an English book that you had for year 5 that you didn't need anymore. A. Yes. Q. In reality, you and [TWN] put your heads together to write those notes, didn't you? A. No. Q. You wrote them and [TWN] assisted you, didn't she? A. No, she didn't. Q. You say that book was kept in your desk drawer? A. Yes. Q. Not under your bed? A. No. Q. But you say it was a year 5 book? A. Yes. Q. Later in that interview - sorry, in your evidence-in-chief, still page 86 at about line 45, you were asked, "When did you write those things in the book?" and you said, "I think it was the start of year 6, maybe the end of year 5." Now that would have been about ten months after [TWN] found the book or at least ten months after [TWN] found the book, wouldn't it? A. Yes. Q. That doesn't make sense, does it? A. No. Q. You say those pages were in the back of this English book? A. Yeah, I'm pretty sure they were. Q. Did you see who tore them out of the book? A. No. Q. Who had the pages when you saw them next after they had been removed from the book? A. My sister [TWN]. Q. Where was the book? Did you see where it was? A. No. Q. When was the next time you saw the book? A. Can't remember. Q. Did you ever see the book again? A. Yes. I think, I don't know, I'm not sure. Q. I presume it still had "Summer Through English" in the front of the book? Is that the case? A. Yeah, it probably would have, yes. Q. Your year 5 English, correct? A. Yes.
13. The cross-examination continued at p 166 to the effect that the subject matter of the dreams, i.e. Freddy Kreuger, ghosts, sharks in the pool and zombies are not real. She was asked at p 166/17, "Can I suggest to you that perhaps you dreamt everything that you've given evidence about today about your pop, that nothing really happened either?" KN answered, "It did happen, it wasn't a dream".
14. At p 168/6 of 16.7.19 KN said that she never talked to TWN about what exactly happened to her.
15. TWN was cross-examined - p 29/20 of 15.11.18 et seq to the effect that she would have found the indecent conduct by the accused upsetting, with which she agreed. The evidence continued to the effect that she did not tell her mother, her father, sister, school friends or her other nan (CN's mother). She did say (p 29/43) that she told the wife of the accused. It was put to her that she did not and she replied that she did. She also conceded that her visits to the accused's home continued. It was put a number of times in cross-examination that the fact that the visits to the accused's home continued was indicative of the version of events by TWN not being true.
16. However CN (TWN's mother) gave evidence (p 4 17.7.19) that when TWN was about seven TWN told her that the accused had touched her in places that she didn't want to be touched. The complaint also included that the accused made TWN touch his penis. At p 4/49 CN gave an answer in evidence in chief, "The conversation finished only after I said, 'next time it happens, tell Nan [accused's wife]". CN then conceded (see p 5) that she did not do anything else in response to what she was told and when asked why said, "Because I was stupid". CN also gave evidence that the accused's wife would on occasions at functions or gatherings say words to the effect of, "Do you remember the time that [TWN] accused [the accused] of touching her". Those words would be said and the conversation would be left at that - see pp 5-6 of 17.7.19.
17. The accused's wife gave evidence in the case for the accused. I remind myself of the directions relating to the accused calling evidence set out at an earlier point of these reasons.
18. The accused's wife denied that TWN ever complained to her about the accused doing anything inappropriate - p 253 24.7.19. A little later she denied ever being aware of any allegation until the night the complainant's parents CN and TN came to the house with the notes written by KN. On this subject I note that at p 258 of 24.7.19 the accused's wife maintains that the documents in exhibit B are not the same as she saw on the night as two of the three pages did not have lines. This was not suggested to either TWN or CN.
19. There is also complaint evidence from HC, who was a school friend of KN. She gave evidence in chief by way of pre-recorded interview (MFI 7) and I repeat the warnings already given in respect of evidence given in that fashion in respect of other witnesses. HC gave evidence that in either year 3 or year 4 KN told her that her pop abused her and her sister (Q 50 MFI 7). In answer to Q 59 she said she "thought" that "abused" was the word that KN used. This was expanded upon at Q 65 to mean "sexually abused". In evidence (p 53 17.7.19) she used the word "molested".
20. Mr Barron on behalf of the accused submits that KN maintained that she did not know about what had allegedly happened to TWN. HC also gave evidence that sports day at the school was a Wednesday.

Direction as to the use that can be made of complaint evidence

1. I have now dealt with the complaint evidence in some detail. I again acknowledge that each matter will need to be considered separately but the complaint direction is common to all matters involving both complainants. It is for me as the tribunal of fact to decide whether the complaint was made, if I am satisfied that it was, then the rhetorical question I should ask is did the complainant act in the way that one would expect her to act if she had been sexually assaulted as she said she was. Is what she did the sort of conduct one would expect of a person in her position at the time? If as the tribunal of fact I think that the complainant has done what one would expect someone in her position to do, that may support the Crown case because it makes the evidence of the respective complainant more believable. As the tribunal of fact I may find that there is a consistency between the complainant's conduct and that the allegation she makes against the accused.
2. The accused through his counsel submits in effect that in respect of the counts relating to TWN the complaint was made but very late and further it is simply a work of fiction that was fabricated out of issues of jealousy felt and has been maintained ever since.
3. Essentially as I understood the submissions in respect of any complaint in respect of the counts relating to KN, any complaint was made in collaboration with and with the active encouragement of TWN in an apparent attempt to bolster the case involving the allegations made by TWN.
4. If as the tribunal of fact I do find that the complaint was made and I do find that there is a consistency then as the tribunal of fact, I can use what the respective complainant said about the accused's conduct towards her as some evidence of the truth of what she said - that is, as evidence that the accused sexually assaulted her in the way she alleges that he did.
5. On the other hand if the complainant has not acted in the way that one would have expected someone to act after being sexually assaulted as she described, then that may indicate that the allegations are 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. The complaints are from the complainants to other people in some cases and notes in another. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
6. Mr Barron makes a number of submissions, all directed to the ultimate point that the complaints are false as the allegations are false. In particular he points to the evidence from KN about the book in which the notes were written being a Year 5 book but KN would not have started Year 5 at the time of the notes being written. It is put that perhaps the complaints were of dreams. The problem for the accused with that submission is that it is also put that the allegations are a deliberate fabrication.
7. There is the issue of the complainants not giving evidence of or not remembering what other witnesses say they said about the complainants telling of the alleged indecent conduct by the accused. It seems to me as the tribunal of fact that if the allegations were in fact fabricated the issue of the complaint evidence would be a lot "tidier" or "slicker" than it is.
8. There seems to me to be a real ring of truth about the notes that are exhibit B. They can be seen as a young girl crying out for help or on the other hand simply telling the book. There also appears to me as the tribunal of fact a very real ring of truth about that part of CN's evidence where she gave an account of TWN saying something to her and telling TWN to tell the accused's wife. I note in particular the response to the Crown when asked why she did not do anything else, namely "because I was stupid". The conversation with the school friend HC was several years before evidence was given. It is not unusual for a complaint of indecent conduct to be made in very general or even generic terms such as "I was abused" or "I was molested". There is the issue of the timing so far as KN being aware of the allegations by TWN. However, I am satisfied to the criminal standard that KN did made a complaint to HC.
9. As the tribunal of fact I have the most enormous difficulty accepting that the initial complaint by TWN was borne out of jealousy. There is simply not the evidence to support that. Indeed, as the tribunal of fact I find that I am not even able to draw an inference that TWN felt that degree of jealousy. I note the evidence of EN (brother of the complainants) at p 47 of 17.7.19 that TWN was not as close to the grandparents as KN. Not being as close does not equate to the very substantial animus that would have been necessary to fabricate these allegations. I have already made the comment that if there was such jealousy that would lead TWN to not only fabricate these allegations but persist with them and then inveigle her sister to make similar but even more serious allegations including the manufacturing of the three pages of notes then one would expect that animosity to have been obvious and it would have manifested itself in other ways. I accept that both TWN and KN made complaints at least in general terms about improper sexual conduct towards them by the accused. I have already set out the use I can make of that evidence. I am of the opinion that it does support the Crown case.

Warnings - Mamhoud v Western Australia [2008] HCA 1 Louizos v R [2009] NSWCCA 71

1. Mr Barron on behalf of the accused asks for a direction in accordance with the decisions of Mahmood v Western Australia [2008] HCA 1 and R v Louizos [2009] NSWCCA 71 in respect number of witnesses who have not been called by the Crown to give evidence. As the Crown addresses first, I do not know what the attitude of the Crown is to this request. I do not know what the Crown's attitude was or is in respect of the request. The direction is sought in respect of the following: 1. TN (the step father of TWN, father of KN and husband of CN) 2. Maternal grandmother of the two complainants who is the mother of CN 1. R a school friend of KN
2. Since hearing final submissions in the matter on 12 December 2019 I have raised this issue in open court with Mr Barron at least twice. I do not have a transcript of the addresses but both advocates have helpfully provided their notes for their final addresses. Mr Barron made a number of submissions as to the absence of witnesses and that I should direct myself in accordance with Mahmood v Western Australia and R v Louizos in respect of those witnesses. I wished to ensure that I dealt with each of those persons. Mr Barron accepted in open court on 23 March 2020 that the persons named above were the persons in respect of whom he was seeking such a direction.
3. In all of the circumstances and having given the matter appropriate consideration I am of the opinion that I should give myself the relevant direction. As the tribunal of fact I am able to take into account that there was no evidence in respect of those persons in determining whether the Crown has proved the guilt of the accused beyond reasonable doubt.
4. Of course, as the tribunal of fact I am not permitted to speculate on what those witnesses may have said if they had given evidence. I must not look to that at all. But in a criminal trial where the Crown must prove that the accused is guilty beyond reasonable doubt a tribunal of fact is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the guilt of the accused.
5. Clearly, TN could have been asked whether he had a collection of pornographic magazines and movies. Given the description of the plot of "Debbie Does Dallas" as given by KN and given the contents of exhibit J, I am satisfied to the criminal standard that KN actually saw the movie or at least portions of it. It was not put to KN that she saw the movie "Debbie Does Dallas" somewhere else. It was put to her in cross-examination that her father had a "rude movie collection". It was not put to her that "Debbie Does Dallas" was part of the so called collection. CN (KN's mother) was not asked whether to her knowledge that TN had such a collection in general and the movie "Debbie Does Dallas" in particular. It is unlikely that a wife would not be aware of her husband's collection of movies or magazines. There are only so many places that they could be secreted around the home.
6. Another aspect on which it was proposed that TN could have given evidence was him collecting KN from the home of the accused one Saturday morning. On any version of the evidence KN and TWN spent considerable periods of time at the home of the accused and his wife. There would be nothing exceptional or unusual about TN collecting KN from that house. In fact had evidence been given by TN to the effect that he could remember one specific occasion in the absence of anything peculiar or unusual about that occasion, as the tribunal of fact I would have been quite suspicious of the veracity of that evidence. Nevertheless there are a number of aspects of the case in respect of which he could have given evidence.
7. In respect of the other witnesses it is appropriate for Mr Barron to make the submission that he did about the absence of evidence from those witnesses. It is also appropriate I consider the absence of evidence from those witnesses in my ultimate determination as to whether the Crown has proved its case beyond reasonable doubt in respect of any one or more of the charges brought against the accused.

Delay

1. The accused seeks a direction as to forensic disadvantage because of the delay so far as the allegations by TWN are concerned. It is appropriate that I give myself that direction and I am aware of the consequences of the delay when I am determining whether the Crown has proved its case beyond reasonable doubt in respect of the allegations by TWN.
2. The alleged indecent conduct was reported to the authorities in recent years. There are a number of important directions of which I should be aware and give proper effect to in determining whether I am satisfied to the criminal standard that the accused is guilty of any one or more of the charges brought by the Crown. This direction is in respect of the allegations made by TWN. At the risk of repetition I note that each charge must be considered separately.
3. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation is false. There may be good reasons why a victim of a sexual assault may hesitate in making or may refrain from making a complaint about a sexual assault. However, the delay in making a complaint is a matter for me as the tribunal of fact to take into account in assessing the credibility of the complainant as to what she said the accused did. The accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so as the tribunal of fact I should regard this as indicating that the complainant's evidence is false. This is a matter that as the tribunal of fact I should consider.
4. It is most important that as the tribunal of fact I appreciate fully the effects of the delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. However, I remind myself that it is not for the accused to prove anything - the onus and burden of proof remains on the Crown from beginning to end.
5. In this regard I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution in his own case. These specific difficulties I make clear are not the responsibility of the accused. He has not created those difficulties. There is always difficulty with distortion in human recollection; as the tribunal of fact I should give consideration to the age of the complainant at the time; and further, as the tribunal of fact I may well think the accused in cases of this type will often be able to do little more than deny the charges and test the credibility of the Crown's principal witness on what may appear to be peripheral issues. There are difficulties with recollection and gathering evidence by way of documentary evidence or otherwise that may assist the accused in his defence.
6. Specific difficulties arising to the defence are that there was no DNA testing, no physical examination made of the complainants, physical and/or forensic examination of physical items e.g. the lounge and it would have been difficult if not impossible for the accused to obtain relevant records for the relevant period of time. Relevant witnesses become more difficult to locate.
7. The delay has meant that the complainants were unable to specify with accuracy the date and time of the alleged offence and that has had the effect that the accused may have been deprived of an alibi.
8. The difficulties have put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both. The delay means that the evidence relied upon by the Crown cannot be as fully tested as it might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant's memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify or disprove it. The ability of the various complainants to recall precise details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on their respective evidence by pointing to circumstances that may contradict them.
9. Had the accused learnt of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his barrister in cross-examination of the complainant. Another aspect of the accused's disadvantage is that had he learnt of the allegations at a much earlier time he may been able to find witnesses or items of evidence that might have either contradicted the complainant or supported his case or both. He may have been have to recall with some precision what he was doing and where he was at a particular time on particular dates and to have been able to bring forward evidence to support him.
10. As the tribunal of fact I should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence, and I have already specified the particular matters in that regard.
11. I again remind myself that before any a verdict of guilty in respect of any one or more of the charges then as the tribunal of fact I would need to be satisfied beyond reasonable doubt of the truth accuracy and reliability of the complainant in respect of the charge that you are considering. As the tribunal of fact I am able to take in account what I have said on the issue of delay in making that determination

Tendency Evidence

1. It has been necessary for me to summarise the evidence of the complainants before going to the issue of the tendency evidence. I have given separate reasons as to why that evidence should be admitted.
2. Clearly, given the state of the law, in particular that HML v The Queen [2008] HCA 16 is still applicable in cases such as this - see R v Bauer (a pseudonym) [2018] HCA 40, I would need to be satisfied beyond reasonable doubt of the evidence of one complainant before I could admit it as tendency evidence in respect of the case involving the other complainant. It will be tolerably plain by now that I am satisfied beyond reasonable doubt of the truth accuracy and reliability of each of the complainants and therefore it is appropriate I consider the issue of tendency evidence
3. The tendency suggested is that the accused had a sexual interest in young female children and that he was prepared to act on that interest with underage girls with whom he had a familial relationship, namely his granddaughters. Further, the tendency suggested is that the accused acted opportunistically in situations that involved a high degree or danger of detection.
4. The evidence suggesting that the accused had that tendency can only be used by me as the tribunal of fact the way in which the Crown asks if as the tribunal of fact I make two findings beyond reasonable doubt. The first finding I must make is that one or more of those acts occurred. I do not look at or consider each of the acts in isolation but consider all of the evidence and ask myself whether I am satisfied beyond reasonable doubt that those particular acts actually took place. However, if I am not satisfied that those acts took place then I must put aside any suggestion that the accused has the tendency as advanced by the Crown. It is entirely a matter for me as the tribunal of fact as to whether those acts occurred. I have made findings in that regard.
5. If, and only if, I am satisfied beyond reasonable doubt that one or more of those acts did occur then I proceed to then consider the second finding. As the tribunal of fact I ask myself whether, from the act or acts that I have found proven, I can conclude beyond reasonable doubt that the accused has the tendency the Crown alleges. If I cannot draw that conclusion beyond reasonable doubt then, again, I must put aside any suggestion that the accused had the tendency alleged against him.
6. So, if having found one or more of the acts attributed to the accused to have been proven by the Crown beyond reasonable doubt and if as the tribunal of fact I can from the proved act or acts conclude beyond reasonable doubt that the accused had the tendency to engage in improper sexual conduct with underage girls with whom he had a familial relationship, namely his granddaughters and further that the accused acted opportunistically in situations that involved a high degree or danger of detection as the tribunal of fact I may use that fact of that tendency in determining whether the accused committed the offences set out on the indictment. I remind myself again that each charge must be considered separately.
7. As the tribunal of fact I should have in the forefront of my mind in considering this evidence that it is just one part of the evidence relied upon by the Crown and as the tribunal of fact I will give it such weight as I think it deserves in the context of the whole of the evidence that is before me.
8. There is a real degree of circumlocution about the issue of tendency evidence in this trial. Before it could be used as tendency evidence, as the tribunal of fact I need to be satisfied beyond reasonable doubt that the accused did what was alleged. Having made that finding in respect of the individual complainants the tendency evidence is rather superfluous, but I deal with as it has been relied upon and argued upon. The issue of tendency evidence and the decision in relation to it makes no difference to any of my findings in respect of either of the complainants or for that matter the ultimate verdicts in this case.

Case for the accused

1. I remind myself of the directions so far as the accused giving and calling evidence is concerned. I have set those out in full earlier in these reasons.
2. Although tendered in the Crown case, the accused gave a record of interview to police on 5 August 2015. I direct myself that the accused was not obliged to answer those questions and had he declined to do so a direction would have been required to the effect that no inference adverse to the accused can be drawn because he simply reserved what was his right and the right of every citizen to decline to answer questions from police officers. The record of interview is a possible version of the facts and as the tribunal of fact I will give the answers in the record of interview what weight I think is appropriate in all of the circumstances.
3. The accused denied any allegation of sexual misconduct - see generally Q/A 88 and continuing. I note that the accused also gave sworn evidence denying all of the allegations made by both complainants.
4. Going to the evidence, at p 70 of 18.7.19 the accused gave an account of the various addresses at which he had lived with his wife. He also gave an account of who constituted his family. At p 73 he said that he had worked for the same company for 26 years as a truck driver, the company's main business being egg birds and chook and pig feed. He drove both locally and long distance for the company. In more recent years he only drove locally rather than the longer distances. The work uniform consisted of high-vis shirts, one of which the accused was wearing when interviewed by police (ERISP) on 5 August 2015.
5. The accused went on to give evidence to the effect that TWN would stay overnight but not very often (pp 74-5). The accused maintained that TWN was always more involved with her other grandmother (CN's mother) than he and his wife. He maintained that TWN when she stayed over always stayed in RM's room - p 76/35-50. He went on to say that TWN never slept in the same room as he and his wife - p 77/1.
6. Mr Barron then put a number of the allegations by TWN to the accused, (p 80/25 to p 82/26). He denied each and every allegation: Q. I asked you a moment ago about whether or not you remembered [TWN] sitting on your lap. I'm asking particularly whether you remember her sitting on your lap whilst you sat in the chair that you described as the one you preferred sitting in, in that lounge room at any time. Do you remember any such occasion? A. I don't think so. I won't - couldn't remember. It's back - it's back a long way. Some things I remember what I do, somethings I don't. Q. Do you know whether you ever touched her on the breasts-- A. No. Q. --and rubbed in circular motions whilst you were sitting in that chair? A. Never. Q. Did you ever put your hand up [TWN's] dress whilst sitting in that chair and touch her breast area? A. Never. Q. Did you ever rub her vaginal area on top of her undies, underpants-- A. Never. Q. --in that chair? Did you ever do those things at any time? A. No, I did not. Q. Did you ever put your hand inside [TWN's] underpants? A. No. Q. Did you ever rub her with your palm and fingers in her vaginal area? A. No. Q. Again, whilst sitting in that chair or in that area, did you ever take [TWN's] hand and place it on your penis on‑‑ A. No. Q. --the outside of your shorts? A. Never. Like I said before, nine times out of ten she was there, her parents were sitting in the lounge room at the same time, because she'd only come with her mother and [TN]. Q. Do you remember being with [TWN] in the lounge room on any occasion when she called out to [VN], calling out "stop" or "Nan" or words to that - anything like that? A. No, don't remember. Q. Do you remember any occasion being in the lounge room with [TWN] when she was lying on the floor and you were wrestling with her? A. No. She always used to lie on the floor in the winter time, would be right over near - with the gas ducted heating, you've got vents come up through the floor. She'd always used to lie over near that vent because she was always cold. Q. Was your relationship with [TWN] the type where you might play wrestle with her on the floor? A. Not really, no. Q. Do you remember ever play wrestling with [TWN] on the floor anywhere? A. No, never. Q. Do you remember ever pulling [TWN] 's shorts down whilst she was lying on the floor in the lounge room‑‑ A. Never did. Q. --of that house? A. Never did. Q. Do you remember touching her in the vaginal area on the outside of her underwear whilst she was lying on the floor in the lounge room on any occasion? A. Never. HIS HONOUR: Mr Barron, it's a matter of form, but a question "Do you remember" is generally not helpful; it can be ambiguous. BARRON: Yes, thank you, your Honour. Q. Did you ever‑‑ A. No, I didn't. Q. --touch [TWN] in the methods I've described? Did you ever do that? A. No, never did. Q. During the period around 2002 to 2004 did your wife, [VN], ever say to you that [TWN] had accused you of touching her in a sexual manner? A. No. Q. Did anyone ever raise that with you around that time? A. No. Q. Was there any occasion when [TWN] was in your bed when the bed got wet in any way? A. As I said before, I've never, ever, had [TWN] in that bed, in our bed, unless she having a cup of Milo early of a morning. Q. So, even of an early morning when [TWN] was in possibly having a cup of Milo, was there any occasion when the bed was wet? A. Not that I can remember, no. Q. Did you ever rub up against [TWN] whilst she was in bed with you and [VN]? A. No, she were always propped up, sitting up like that. [TWN] would sit up in the middle with her coffee. Not coffee, sorry, she'd be having Milo in a Kit Kat cup.
7. Then, at p 83/1: Q. Did your wife, [VN], ever mention to you changing [TWN]'S clothes in the middle of the night because they were wet or had something on them? A. No, never mentioned it to me. Q. Did you ever whilst [TWN] was in your bed grab her hand and place it on your penis? A. Never. Q. Do you remember [KN]'s tenth birthday party? A. Yeah. ... Q. Roughly, how many people all up do you think were there? A. There was our family, [names redacted - see p 83/20] Q. Okay, and it was summer? A. Yeah, yeah. Q. Early February? There was a pool at the house? A. Yeah, it had just been there, I don't know, probably a month or two or maybe a bit longer. Because I helped, I helped TN do all the concreting around it, because I used to do that years ago. So, me and [J] and [TN] and a couple of other of his mates did all the concreting around the pool. Q. On this day, did you have a swim yourself? A. Yeah, I think I did. Yep. Q. Do you remember who else had a swim that day? A. [Redacted] was in there with his kids and then there was me and probably six, seven of the grand - five, six grandkids, and [J]'s mate's girlfriend, she had a couple of daughters and a son and they were all in there. The pool was nearly chock‑a‑block. Q. You heard evidence I think from [CN] about yourself tossing the grandchildren around? A. Yeah, I'd just toss‑‑ Q. Is that a fair description? A. Yeah, they'd come up and say "chuck me, Pop, chuck me". So I'd chuck them up in the other end of the pool and I'd sit in the shallow end and just chuck them towards the deep end so they wouldn't hit the bottom. Q. At any stage in that pool did you touch [KN] in the vaginal area? A. No. Just under the arms, pick up and throw. Q. So under the arms is how you'd throw? A. Yeah, under the arms. The bigger - the heavier kids, the bit bigger, taller kids, I'd just put my fingers like that and they'd put their foot in and I'd just flick them over. Q. You're indicating sort of latticing your fingers together? A. Yeah, they put their feet in there and I'd just flick them over. Q. So they'd step into your latticed fingers and you'd throw them? A. Yeah, they'd put their hands on my shoulder and I'd just flick them over. Q. Did you see [KN] become upset during the course of that day at all? A. No, I don't think so. I can't remember. I was mucking about in the pool with all the kids and when I'd had enough, I got out and just sat down, had a couple of beers and helped [TN] do some cooking on the barbie. Q. Did you see when [KN] got out of the pool? A. No, I didn't see. Kids were in and out all the time, because the parents were yelling about them not closing the gate because of the littler ones. Q. After that birthday did you notice any difference in the relationship between your family and your son [TN]'S family? A. No, not really, I didn't notice it. I only used to see [TN] of a weekend. Sometimes if I was working Saturday I probably wouldn't even see him of a weekend because he'd go away of a Sunday refereeing [redacted] football.
8. At p 85/23 to 46 the accused recounts an issue of a dispute over a christening gown. That dispute involved CN, the mother of the two complainants. At p 85/40 the accused went on to say that CN would frequently stay home because of some issue that made her dizzy and was prone to falling over.
9. The accused was then asked about the circumstances of TN and CN coming to his home and showing him and his wife exhibit B, the notes said to be written by KN. The accused said when shown the notes by his wife said (p 86/35): Q. [CN] or [TN] said something? A. [CN] or [TN] said to [VN], "Have your say". And [VN] said, "Well, it's between [RM] and you, [CN]. Youse are always bickering because you don't want your kids here while [RM]'s got her kids here. Your kids want to come and stay longer than [RM]'s kids", and that's what we thought it was over. And then she pulled three pieces of paper out of her top here somewhere and threw it on the table.
10. The accused maintained that the paper never had lines on - see p 87/11. His wife said the same thing. However as I commented earlier when dealing with the complaint evidence that was never suggested to KN or TWN or CN.
11. The account of the accused being shown the notes continued (p 87/30): Q. So [VN] saw the - well, appeared to see the pages. What happened then? A. Then [CN] grabbed them and started going on. She said, "Oh, he's been interfering with our daughter", and then [VN] looked at me and said, "Have you?" and I said, "Don't be ridiculous". And then she just - they just up and started - [VN] started arguing with her and she started arguing and screaming and I-- Q. I'll take you slowly. A. Sorry. Q. Do you remember what either [CN] or [VN] said in this argument? A. No, I couldn't remember the words. I wouldn't - yeah, all I know they were arguing and yelling at each other. Q. Is it fair to say it was a heated discussion? A. It, it would be fair to say it was heated, yes. Q. Was everyone still sitting at the table, or did anyone get up? A. No, well, [TN] never ever sat. Q. [TN] didn't sit? A. Christine sat on one side, [TN] stood behind her. Q. Were yourself, [VN] and [CN] still sitting at the table at this point? A. Well, when they started arguing, [CN] stood up and so did [VN]. And I stood up and then [VN] said, "Get out of my house", so they got up and started running around the other side and walking out. Q. Did you see [VN] punch the wall at all? A. She did get a bit wild, but I don't think she punched the wall. She might have hit the table. Q. Hit the table? A. Yeah. Q. Did [CN] say words to the effect of, "Your husband's had his penis in our daughter's mouth" or "He's had his penis in our daughter's mouth"? Anything like that? A. I don't remember that. The only thing I remember her saying was - pointing at me and saying, "You're going to gaol for 25 years for touching my daughter". That was it.
12. From p 89/39 and continuing the accused was taken to a number of his work records. He maintained that he always started work at 5am and worked until 4 or 5 in the afternoon. The point of this evidence is that on that version the accused would not have had the opportunity to pick up the complainant KN from school. At p 92/1 the accused maintained that the earliest he finished work was 4pm and he regularly worked 11, 12 and 14 hours per day. This evidence again went to the issue of opportunity to commit some of the offences as alleged by KN.
13. Further on this aspect the accused gave evidence on 19.7.19 (p 97/35) that he never collected KN from school. The evidence continued (p 98/12) that he never shared a room with KN whenever she stayed over. His wife would occasionally sound the horn when she came home. The evidence was also (p 96 19/7/19) that the accused never observed KN upset or attempting to avoid him.
14. The accused was then taken to photographs of the garage of the house in Young. The accused constructed the shelf in the garage as a place to put tools - p 100/6 et seq.
15. When asked about a briefcase the accused maintained that it was a leather pouch with handles that his employer provided as something in which to place the various permits required for his work - p 103/29. This did not have a lock on it and it was kept in the truck or upstairs and the accused could not remember ever leaving it in the garage - see generally p 104.
16. The accused then denied a number of the allegations (p 105/1): Q. In 2010, did you show [KN] any pornographic magazines anywhere? A. No. Q. In the first three months of 2010, do you recall being alone with [KN] at your house? A. No, I do not recall. Q. Did you at any point in the first three months of 2010, touch [KN] in either the vaginal or breast area at your house? A. No, I did not. Q. At any stage during that period of time, did you touch yourself in the vicinity of your penis whilst [KN] was around? A. No, I did not.
17. The accused was taken to further allegations (p 106/32): Q. At any time in that early part of 2010, did you ask or tell [KN] to get down on her knees in front of you in the vicinity of that lounge? A. I did not. Q. Did you pull her pants down? A. No, I did not. Q. Did you place your penis between her legs? A. No, I did not. Q. Did you move between her legs until you ejaculated? A. No, I did not. Q. Did you place your penis in [KN]'s mouth at all during that period? A. No, I did not. Q. If you're in the garage and a car arrived to go into the garage, was there any way to get from the garage to the house without being in view of whoever's in that car? A. No, 'cause as soon as you turn in the driveway you're looking straight into the carport, and you got to come out and up the stairs to get into the house or the ramp. Q. I think you said you're not sure when you transformed the stairs into a ramp, whether that was early 2010 or-- A. No, it was, no, it was, couldn't tell you the exact date, but before the ramp there's four or five stairs. Q. So you say that too, if the roller door was up, there wouldn't have been a toot of the horn. Was there any occasion that [VN] beeped her horn when the roller door was already up? A. No, she'd have no need to. Q. Because as far as you're aware what was the reason for the beeping of the horn? A. If it was raining it was for me to come down and open the carport, but if it wasn't raining she'd just stop the car in front of up, get out and open it up herself, and then when she come out I always told her to keep it closed. 'Cause one Christmas I left it up 'cause I had the Christmas lights working and I had a fridge and a freezer down there, and I'd come down about 10 o'clock to turn the lights off and there was a bloke running out of my shed carting beer out, and they'd already ransacked my freezer and took all my frozen food. So that's why I always made sure it was kept down and locked. Q. Was there any occasion in early 2010 [KN] locked herself in your bathroom crying as far as you're aware? A. Not that I know of. Q. Did you ever around this period offer [KN] chocolates or lollies and movies not to tell anyone about things you'd done to or with her? A. No, I didn't. Q. Did you ever used to buy [KN] presents? A. Only Christmas time and that. The, the wife used to always buy them chocolates and DVDs, but she'd take them shopping and they'd con them out of her. I, I never knew she'd go down the street that much. Get me a carton of beer and that was it. Q. Did you ever buy chocolates just for [KN]? A. No. Q. No? A. No. Q. Did you ever buy movies just for [KN]? A. No. Q. Did you ever offer to do that? A. No.
18. At p 108/40 the accused denied ever attending KN's home and inviting her back to his home. Later (p 109) he said that he never took any of the children to his home without first checking with their parents.
19. At pp 108-9 the transcript reflects that I intervened and inquired as to why the accused used the words "no way" rather than "no". It was not only the words but the vehemence with which they were said that led me to intervene. As the tribunal of fact the reaction of the accused at this point of his evidence gave every impression of him protesting too much.
20. The accused was then taken to the allegations of the "Debbie Does Dallas" incident. The evidence of the accused was: Q. Did you tell [KN] during this period that you wanted to put on a cool western movie, like a DVD or video for her? A. No, I didn't. Q. Did you and [KN] ever sit and watch Western movies? A. No. Q. Did you show [KN] a movie called Debbie Does Dallas? A. No, I didn't. Q. Did you ever own a movie called Debbie Does Dallas? A. No, I'd only heard about it when this started. Q. Did you ever possess a movie called Debbie Does Dallas? A. No. Q. Did you at this time own any pornographic movies? A. No, I did not. I'm more Western, an action man. Q. So you had a collection of western movies? A. Yes, I have all John Wayne's, Clint Eastwood, Charles Bronson, Audie Murphy, and I have the whole collection of MAS*H from start to finish. Q. Any pornography? A. No. Q. Did you about this time in the presence of [KN] touch yourself in a sexual way? A. No. Q. Did you during this time pull [KN]'s shirt up at your house and put your mouth on her breasts? A. No, never. Q. Did you during this time ever pull down your pants in front of her and have her touch your penis? A. No, never. Q. Did you ever pull down her pants and underwear during this period? A. Never. Q. Did you place your penis between her legs and go back and forth until you ejaculated? A. No, I'm sorry. No, never. Q. Was there an occasion that [KN] was in the lounge room watching a movie with you when her brother [EN] rode up on his pushbike? A. Not that I can recall, no. Q. Do you recall an occasion about this time - and we're talking as I say about give or take April 2014 - that [KN] was crying at your house? A. I can't remember. Q. Do you recall an occasion about this period that [KN] had some redness or orangeness around her mouth? A. No, I can't remember. Not that I know of unless she's in the old girls make‑up.
21. The accused denied having a movie for a bachelor party and maintained that he did not even go to his own sons' bachelor parties because they were out of town and he had to work the next day. The evidence of the accused continued (p 112/14): Q. Did you either in [redacted] Street or [redacted] Street whilst [KN] was present clean sperm off the lounge with a face washer or anything else? A. No, never. Q. About this time, that's about April 2014, did you offer to buy [KN] lollies or chocolates and movies if she didn't tell anyone about things you'd done to her? A. No, never. Q. Going back to [redacted] Street, was there an occasion again that you asked or told [KN] to pull her pants down? A. No. Q. And that you pulled down your pants in front of [KN]? A. No, never. Q. On this separate occasion did you place your penis between [KN]'s legs near the lounge? A. No, never. No, never. Q. Or up against the lounge? A. No, never. Q. Did you pick [KN] up and move her to the kitchen table whilst her pants were still pulled down? A. No, never. Q. Have you ever that you recall picked [KN] up and put her on the kitchen table? A. No, never. Q. Did you place your penis between her legs on the kitchen table? A. No, never. Q. Did you pick her up and carry her into the toy room? A. No. Q. Did you place her penis between her legs in the toy room? A. No, never. Q. Did you pick [KN] up and take her from the toy room to the bedroom that she used to sleep in? A. No. Q. In this house which bedroom did [KN] used to sleep in usually if she stayed over? A. The end of the hall on the left. Like the hall was an L shape, and at the end of the hall was the toilet, then there's a bedroom there and a bedroom there. She's that one up there, the top corner. Q. So to the left side of the toilet, is that right? A. No, if you're looking at the toilet it would be on the right. The left side was the bathroom. Q. Did anyone use that bedroom as a regular bedroom? A. The wife used to call it the girls room and the other one was the boys room. Q. Did you place your penis between [KN] legs in the bedroom that you've described as the girls room? A. No, never. Q. Did you ejaculate between her legs in that room? A. No, never. Q. Did you clean any sperm up in that bedroom? A. Never. Q. Did you ever take [KN] yourself to Big W? A. No, never. Q. Was there an occasion about this time that [KN] was at your house and said she wanted to see her cousins, [redacted] and [redacted]? A. She could've. I can't remember. They were always, always trying to get together. Q. Did you ever tell [KN] that the only way she'd get to see [redacted] and [redacted] was if she participated in sexual acts with you? A. No, never. Q. Was there any occasion ever that you've placed your penis inside [KN]'s mouth? A. No, never. Q. Is there any occasion ever that you placed your penis in between [KN]'s legs? A. No, never. Q. Was there any occasion ever that you've ejaculated in the presence of [KN]? A. No, never. Q. Did you ever rub [KN] on the vagina whilst you were both in a swimming pool? A. No, never. Q. Was there an occasion back in [redacted] Street that there were members of the family present, including your daughter‑in‑law [redacted]? A. [redacted]? [DN]. Q. Sorry, [DN], that you held [KN] and placed her clothed bottom or bumped her clothed bottom repeatedly against your groin area? A. No. Q. Just by way of summary then, have you ever touched [TWN] in a sexual manner or touched yourself in a sexual manner in the presence of [TWN]? A. No, never. Q. Have you ever touched [KN] in a sexual way? A. Never. Q. Have you ever touched yourself in a sexual way whilst [KN] was present? A. No, never.
22. The work records of the accused were tendered and became an exhibit. The Crown maintains that some of the evidence relating to these records was deliberately false and misleading. For good reason the Crown attributes some significance to the evidence of the accused at pp 89 - 90 of 18.7.19. The evidence of the accused was: Q. Is it fair to say that we've had a look through those and there are details in relation to - well, firstly, 28 January, there's your name appearing for the registration ending 010, 020 and 030? A. Yep, that'd be in here. Yep. Q. So does that signify that you were at work on 28 January that year, and worked on those three different trucks during the course of the day? A. Drove them during the day, yep, yep. Q. There is no entry for 29 January that year. What does that mean? A. Well, if I wasn't in a truck on the Friday, I would've been in the workshop, which doesn't show up on these log pages, because they're for the trucks. When I'm in the workshop, they've got one of those finger on machines, you put your finger on it to clock on, and then at the end of the day, you clock off with it. Q. But being outside seven years, those records haven't been available, is that the case? A. Yeah, yeah. Q. For 1 February that year-- A. Yep. Q. --is it fair to say there are records showing you worked truck 010 and 020? A. Yep. Q. 2 February, just on 010? A. Yep. Q. 3 February, 010, 020? A. Yep. Q. 4 February, 020, 030? A. Yep. Q. And 5 February, 030? A. Yep. Q. Now, the days that we've just gone through, so that's - the relevance being, well, we've got the first two dates I went through with you are 28 January, 29 January, that's-- HIS HONOUR: What year? BARRON: 2010. Q. So that would be [KN]'s first day and second day of school? A. Yeah. Q. Now, if you're at work, and on the 28th there you've worked three trucks, what hours were you working in this period of time? A. Well, most nearly every day I worked, I always started at 5. Q. 5am? A. 5am till 4 or 5 in the afternoon. If I was running, like it says on this sheet, in 030 on the fifth of the second, it's got [redacted], which is a Sydney run, which I would have left at 1 o'clock in the morning. I get down to Sydney in the four and a half hours, unload, which takes you a hour and a half, two hours sometimes, back to [redacted], which it says underneath the fifth of the second, [redacted] grid. I would have went back to [redacted], reloaded at [redacted], had my half an hour break there, and then went back home, unloaded the grit, which takes you about hour and a half. And then, depending on what day it is, I would have fuelled it up and loaded it for someone to take the next day. If it wasn't going anywhere, or the mechanic wanted it, I'd just fuel it up, park it up.
23. Essentially the accused was giving evidence that he simply did not have the opportunity to commit the alleged offences against KN relating to counts 10 to 14 on the indictment. Further on this issue of opportunity the accused maintained that he worked particularly long hours, indeed up to 12 to 14 hours per day. The following appears in the cross-examination of the accused (commencing p 144/23): Q. So your evidence to be clear is that you could not have picked [KN] up from school because you were always working on school days? A. Yes. Q. You were always working until half past 4 or 5? A. Yeah, sometimes later, yep. Q. That's after starting at 5 o'clock in the morning every morning? A. Yes. Q. Sometimes Saturdays as well? A. Yeah, Saturday I'd start, if I was doing the egg run to Canberra, I'd leave about half past 4 in the morning, 'cause I had to be down there at a certain time to unload before their own trucks started coming in. Q. So you're working 12 hours days most days? A. Yep, sometimes even more 'cause we had that BFMs, they let us work 14 hours. Q. These documents that you have here they're in the order of per truck, is that right? A. Yep, it looks like it. Two, three, yeah, I have this, the truck there. I think that number plate, that [redacted], I think was a hire truck when one of the blokes rolled the egg truck, yep. Q. Just looking at the first one, the truck that's 010? A. Yes. Q. I think you said on 28 January you worked three trucks. So if you go to page 11? BARRON: I've numbered my friend's pages just while I was doing the summary. The other, your Honour's copy and the exhibit, are not numbered. SOLICITOR ADVOCATE Q. So the third last page of truck 010? A. 17th of the first, is that it? Q. No, 28th of the first? A. Yep. Q. So your evidence is that you worked three trucks on that day? A. I couldn't tell you exactly but it's in here to be three trucks that day. Sometimes I worked three, sometimes I worked four, sometimes just in the one. Q. But in your evidence, you said that you worked three trucks on 28 January? A. Well, if it's in here I must've. Q. You said you worked 010? A. Yep. Q. 020? A. Yep. Q. And 030? A. If my name's on it I worked in it. Like I said, unless I was in the workshop. Q. You also said truck 020 was one you were working on 28 January? A. (No verbal reply) Q. Have you found the page for 28 January for 020? A. 28th of January, yep. Public holiday. HIS HONOUR: 28 January. WITNESS: Yeah, it's got PH over near the date. SOLICITOR ADVOCATE Q. Is that 020? A. Yep. HIS HONOUR: Well, I can't-- WITNESS: Sorry, I'm on 28th of twelfth, sorry. SOLICITOR ADVOCATE Q. 28 January? HIS HONOUR Q. If it's LPC 020, it is the page that starts the kilometres 121,001 and finishes 124,334? A. I've got-- Q. The first date is 24 January and the last date's 29 January on that page? A. 24th, 121,001, yep. HIS HONOUR: That's the right page, isn't it, Madam Crown? SOLICITOR ADVOCATE: Yes. WITNESS: Yep. SOLICITOR ADVOCATE Q. So that's the day you say you were working that truck also? A. Yep. Q. You also gave evidence that you were working 030? A. Same date? Q. 28 January? A. 28th, yep. Q. You can see that? A. Yep. Q. Who put these truck logs or logbooks together? A. What, there like, like this? Q. No, who put the bundle together for the Court? A. [Redacted], she's a, works in the office out at [redacted]. I asked her to get them for me and she got them.
24. Further on the issue of opportunity the following appears later in the cross-examination of the accused at p 154: Q. You say that if there's no diary entry, then you must have been in the workshop? A. I would have been in the workshop, yes. Q. Did you ever have Fridays off? A. No, not really. I hardly used to have any days off. I'd even work public holidays as this sheet sometimes tells you. Q. I know you've just said, "Not really" and, "Hardly ever." Did you ever have Fridays off? A. No. Q. Never? A. No. Q. If your hours for a Friday don't show up on a particular truck, that means that you're in the workshop? A. Nine times out of ten yes. Q. When doesn't it mean you're in the workshop? You're not in a particular truck on a Friday, when does it not mean you're in the workshop? When is that one out of ten? A. Well, if I was some, doing something else. Q. Not in a truck? A. Not in a truck. Sometimes if there was no work in the workshop they'd have me on a ride-on mower mowing the paddocks. Like the front entrances and all that. Used to do a bit of everything for them. Q. Then if you did that you were in the workshop or on the ride-on mower, what were you saying, doing edges? A. Ride-on mower, you mow. Q. Ride-on mower? A. Mow. Q. What would that show on your payslip as? A. It'd be just a $22 an hour pay, show up like on the farm, working on the farm. Q. On your payslip? A. I suppose it'd just come up $22, eight hours at $22.
25. Exhibit O is a summary of the accused's wages paid to him for the period 31 December 2009 to 3 April 2010. As the Crown correctly submits, these records do not bear out or support what the accused says about working the hours per day and the days per week that he said he did. The following appears in evidence at p 151/28 (23/7/19): Q. Isn't it correct to say that your payslip tells you exactly what truck you were working on for a particular week? A. I can't remember off the top of my mind what payslip says except how much I earn. Q. Do you remember your payslips saying, mover 1 or mover 2 or mover 3? A. I said I couldn't remember off the top of my head. I very rarely even used to look at them. Q. You didn't ever check your payslips? A. I didn't need to. I had a rough idea of what I earned for the week and [VN] would just say, "Well, this is what's gone in the bank." I'd say, "Yeah, that's close enough." Q. Do you ever remember seeing on your payslips mover 1 or mover 2 or mover 3 or mover 4? A. I, like I said, I can't remember.
26. This was contradicted by the wife of the accused who said under cross-examination at p 292/29 (24/7/19): Q. In terms of [GN] getting paid were you aware of how much he was getting A. Yes, because I made sure he got paid properly. Q. How? A. Checking his pay slips. Q. How often did you do that? A. All the time. He wouldn't, I would. Q. When did you check his pay slips? A. As soon as he brought them home to me. Q. When did he bring them home? A. I know he'd get paid on the Monday night and the girls in the office would probably give it to him Wednesday, Thursday. Q. Your practice was to check that every time? A. It wasn't my practice but I always did. Q. It was something that you did every week? A. Yes. Yes. Q. Every week where did you get the pay slips from? A. He gave them to me. Q. What if he forgot to give you one? A. He wouldn't because I'd ask for them. Q. Where did you understand he got them from him? A. His workplace. Q. How did you calculate that he was paid correctly? A. Because they're pretty good accurate payers [redacted], pretty spot-on, so I knew they wouldn't rob him or anything. It all depends how he worked like I mean you know how many loads. Q. So would you check how many loads that he worked? A. No. I only checked his pay.
27. Exhibit P is a series of log books relating to the trucks that the accused drove in the course of his employment. Likewise, they do not support what the accused said in his evidence concerning the hours per day and days per week that he worked. I note the cross-examination on the hours at pp 165-167. I recall quite well that part of the cross-examination. The accused was not an impressive witness. There is real substance in the Crown's submission that the diaries demonstrate that the accused must have frequently finished work in the early afternoon, noting that the accused maintained (e.g. p 166/5-6) that he commenced work at 5am on a regular basis.
28. Exhibit 4 is a series of truck diaries. It is this material in particular that the Crown maintains is false and misleading. The submission for the Crown is that the truck diaries were in respect of trucks and years that have no relevance to the matter presently under consideration. I have already extracted that part of the evidence in chief of the accused wherein he maintains that he worked on three separate trucks on 28 January. The following appears in the evidence commencing p 147/36: Q. That you said that there were no diaries or truck sheets or 2011/2012? A. I wasn't sure what, I asked [redacted] to get them for me and I just bought a big bundle in and gave them to David. Q. From the brief of the evidence, you knew that the first allegation with [KN] was sometime not long after she started school in 2010? A. Yes. Q. Yes, you knew that? A. Yep. Q. You'd had the brief of evidence for some time? A. Beg your pardon? Q. You'd had the brief of evidence for some time? A. Yeah. Q. So you knew that was an important date? A. 2010. Q. So when you got the records from [CN]-- A. No, they come from my work. Q. Yes, from your work, sorry, [redacted] at work? A. Yes. Q. Did you get those records and say, "Right, I'm going to see what I was doing at the beginning of the school term in 2010"? A. No, I didn't look at them I just picked them up, put them in my car and bought them over to David, 'cause I knew I'd be working 'cause I work all the time. It's all I've done all my life since I was 15. Q. You can, it's fair to say, read a logbook can't you or a truck diary? A. Yeah, it's what truck drivers write in. Q. You've been doing that for 26 years? A. Yep. Q. Writing this kind of logbook? A. Yeah, worksheets yeah. If you haven't got these filled out, you don't get paid. Q. That's right. A. That's right yep.
29. The following is also relevant commencing p 150/1: Q. Prior to giving evidence about that particular document, you said that the truck diaries related to 2010 didn't you? A. The truck sheet. Q. The truck sheet. A. 2010, no this, yeah 10/11, yep. Q. You see, isn't it the case that 020 none of it relates to 2010? A. If it's in here it'd have to be 2010. Unless they stopped the truck running for a whole year, which I very much doubt they'd do that because they're too expensive to have sitting around. Q. Yes, they are aren't they? A. They are. Q. Just have a look at the first page. A. Yep, 20th of the sixth. Q. 20th of the sixth what? HIS HONOUR Q. What year? A. It'd be 2000 and whatever's on the page. Would have been over here with the weights thing I'd say. SOLICITOR ADVOCATE Q. What about at the end where it says, "Comments, grease, tyres"? A. Grease, yep. Q. What does it say there? A. This one's got dates in it; 26, 25/06/2011. Q. All of those documents for 020 relate to 2011 don't they? A. I don't, couldn't tell you if [redacted] put the 10th on it, they'd have to be the tenth. If you probably go back to the back one you might find the, the year. Can't see any. Yes, they are; 24/01/2011. Q. You spotted that fairly easily. A. After looking for it, yes. Yep. Q. That bundle of documents attached that says, "LPC 020" doesn't relate to 2010 at all does it? A. I couldn't tell you. I just assumed it did because it was written on it. Q. Where was it written on it? A. Red writing right at the top. Q. It says, "2010/2011"? A. Yeah. Q. Your payslips? A. I beg your pardon. Q. Payslips? A. Yeah. Q. How do you get those? A. You have to take them from the office. Q. Each week? A. Or sometimes I'd collect them weekly, sometimes a couple of weeks. Q. What do you do with those then? A. Used to just take them home or sometimes just throw them away. Q. It's correct to say that each page of this truck diary relates to one week? A. Yes, usually yes. From--
30. As the tribunal of fact I am constrained to comment that the answers from the accused strain credulity to breaking point. He was very well aware that January 2010 was an important date. It defies logic and common sense and every day experience that in the circumstances the accused would not have been more attentive to which year the records related.
31. Eventually as the Crown submits, the accused did eventually concede the fact that he did have the opportunity (p 202/46 of 23/7/19): Q. See again in relation to the first incident with [KN] there are many occasion when you had the opportunity to commit that offence weren't there? A. Yes, there was an opportunity but I didn't do it. Q. See again in relation to the first incident with [KN] there are many occasion when you had the opportunity to commit that offence weren't there? A. Yes, there was an opportunity but I didn't do it.
32. Mr Barron in supplementary submissions still maintains that the work records and truck diaries go to establish lack of opportunity in respect of counts 10-14 inclusive. For the reasons I have given I reject that submission.
33. There are some other issues relating to the evidence of the accused, even making due allowances for the position in which the accused was - namely defending himself against very serious allegations. The accused impressed on occasions as being quite evasive. In particular I note that part of the evidence at p 166/17; 174/23 and 178/28 of 23/7/19. The transcript records that I intervened on a number of occasions and reminded the accused of the questions asked by the Crown.
34. Further, the accused maintained (p 179 23/7/19) that he did not know the precise allegations until KN's pre-recorded interview was played before me in court. It simply beggars belief that a person charged with such serious allegations would not want to find out in precise as detail as humanly possible the very nature of the allegations against him.
35. Evidence was called by the accused from IM (p 216 24/7/19), another granddaughter of the accused and a cousin of the two complainants. IM was very nervous which is to be expected given her age. She gave evidence of meeting KN at a PCYC disco at Young. She was not sure of the year but said (p 222/23) "I don't think it was the year before, so not last year, not the year before that but the year before that, I think". She was not sure of what year she was in at school. She went on to give the following evidence: Q. The first time you spoke to [KN], how did that happen? A. Well I went up to her and I just said, "Hi" and yeah she just told me about pop and stuff. Q. What did she say, do you remember? A. She said - she asked me if I knew what was going on with pop and I said. "Yes" and then she told me that she wrote half the letters and [TWN] wrote the other half. Q. Did you know what she was talking about, about the letters? A. Well I didn't really know what the letters were but I've heard nanny and mum talking about them before. Q. Did you say anything when [KN] said that to you? A. No I just walked away. Q. You said you spoke to [KN] again later during that disco, do you remember how much later? A. An hour later. Q. What happened then? A. She told me that [TWN] was pregnant and then probably like two minutes later she came up and told me what she told me about [TWN] was a joke. Q. Did she say anything else about the letters at all? A. No. Q. Have you talked with [KN] at all since then? A. No.
36. However, under cross-examination IM went on to say commencing p 227/39 Q. What did nan say when she was talking about the letters being made up? A. She was saying that [KN] had been talking to her mum like talking to her mum and saying that pop's touching her and then [KN] I think [KN] one night, nan said that she was crying and her mum came in and she asked what was going on. And she was like, she said that she had letters. And I don't think she actually had letters because a couple of days at [redacted]'s house we were there and nan said that they bought in new letters the other day that weren't the actual ones that she had. Q. Even before you had this conversation with [KN] you thought she had made up some letters or witnessed some letters that were not true? A. Yes. Q. You knew that your grandmother was really upset about that? A. Yes. Q. Your grandfather was really upset about it? A. Yes. Q. What about your mum? Was she upset about it? A. Well, she was kind of upset 'cause - yeah. Q. Yes, why do you-- A. Sometimes..(not transcribable).. Q. Sorry? A. Sometimes she didn't really show it but sometimes she was really upset. Q. You could tell listening to conversations between your nan and your pop and your mum that your nan and your mum didn't believe that your pop had done these things? A. Yes. Q. They were pretty angry with [KN] for saying these things? A. Yes. Q. They were really angry about it weren't they? A. Yes. Q. They were upset? A. Yes. Q. Gran was crying sometimes? Yeah? A. Yes. Q. Your mum did she cry sometimes? A. Yes. Q. How many times were you there when they were talking about it? A. Four or five times.
37. Given this there is real substance in the Crown's submission that IM was witnessing conflict in the family or to use the Crown's words, the family was imploding. There are two difficulties for the accused so far as the evidence of IM is concerned: one is that it is the case for the accused that TWN essentially persuaded KN to write the letters, and the second is that KN spoke to no one about what had been happening to her. It is unlikely in the extreme that KN would have spoken randomly to IM about what she said had been happening to her.
38. RM, another daughter of the accused gave evidence on behalf of the accused - see p 233 24/7/19. She gave an account (p 234/31) of collecting her daughter IM from the disco of which IM gave evidence. RM recounts that "[KN] said something about some letters…she told me that her and [TWN] wrote - [TWN] helped her write half of the letters…"
39. The difficulty for the accused so far as the evidence of RM is concerned is, as the Crown submits, a complete and utter lack of objectivity. RM maintained that she had read the whole brief including the transcript of MFI 2, the pre-recorded interview of KN. RM was taken in cross-examination to that part of MFI 2 where KN is explaining the ejaculation. RM maintained (p 239/45) that that did not for a second make her doubt that KN's account was a fabrication. At p 238/30 she said she agreed she was "very strong" on the allegations being a fabrication.
40. The following appears commencing p 236/35: Q. Since you were shown the letters and you decided it could never have happened? A. Never, never, never. Q. That's because in your mind it did not matter what [KN] said, you would not believe it? A. That's right. Q. You wouldn't believe it unless it was - or even if it was on video, would you? A. No. Q. You'd say that must be doctored? A. (No verbal reply) Q. Did you ever speak to [TWN] about what she says your father did? A. Never. Q. Again, it would not matter what [TWN] said, you would never believe it? A. That's correct. Q. That's because to you your dad is a good dad? A. He's a fantastic father and grandfather. Q. Really loving, devoted grandfather, isn't he? A. Yes. Q. Because of that in your mind this could never have happened? A. Never. Q. He couldn't be a devoted and loving grandfather who at the same time was sexually abusing two of his grandchildren? A. He would never do that. Q. You say he would never do it. How would you know if he had? A. Don't really know. We've always been around him.
41. Curiously however RM asked IM whether the accused had touched her (p 241). I agree with the Crown's submission and assessment that RM became very evasive at that part of the cross-examination. She was pressed a number of times as to why that question was asked in the circumstances of her not accepting that the allegations were true. She replied a couple of times to the effect of, "it was just a question I asked". RM also spends a great deal of time with the accused and his wife and is dependent upon them for babysitting on a regular basis.
42. VN, the accused's wife, gave evidence in the case for the accused. She maintained that neither she nor the accused ever picked KN up from school (p 252). She went on to say that there was never an occasion she came home and found KN crying in the bathroom. Further, there was never an occasion when KN called out in distress (p 253). She denied that TWN had ever said anything to her about the accused touching her inappropriately (p 253).
43. The evidence continued that she never saw TWN on the accused's knee. The transcript reflects that I intervened at that point of the evidence to indicate that a grandchild sitting on a grandfather's knee would hardly be anything unusual. VN maintained it never happened. As a matter of common experience and common sense as the tribunal of fact I have the most enormous difficulty accepting that an occasion of a grandchild sitting on a grandfather's knee would be so unusual.
44. Further VN said (p 255) that there was never an occasion when TWN wanted to go home early, that there was never an occasion that she wet the bed on a sleep over and that TWN would get into the bed in the morning. She denied having any knowledge of the accused ever touching any of his grandchildren inappropriately and she further denied ever making a joke of this (p 256).
45. Evidence was given by VN concerning the alleged conflict over a christening gown that was initially purchased for KN on the understanding that other grandchildren would wear it.
46. VN was then asked (p 257 and continuing) about the notes, exhibit B. I have made the point already about the lines and absence of lines on the notes. I note also at p 258 line 30 the following appears: Q. Do the pages in exhibit B appear to be the same? A. No. Q. What appears to be different? A. The ones I read "ghosts up the hallway of nan and pop's, zombies eating my family, left me having sex with pop and I hate pop." And they were on a plain piece of paper, A4 paper no lines. Q. So you don't feel that those are the same-- A. They are not the same-- Q. --pages that you saw? A. --as I read. Definitely not. Q. Are the contents similar to what you read? A. No they're - no.
47. At the risk of repetition I note that neither TWN nor KN or for that matter CN were asked under cross-examination anything to the effect of the notes being different. This is a significant issue given the importance and significance of those notes. It seems that those notes were the reason that the formal complaint was made against the accused.
48. The evidence continued commencing p 258/49: Q. What happened after that, was anything else said between yourself, [CN], [TN], [GN]? A. I told her to go. Q. Did you say anything to [GN]? A. I asked [GN] did it happen and he said no and I believe him, because strongly in my heart I would not be standing by him if I thought for a minute. Q. The pages you read certainly contained an allegation that [GN] had touched-- A. Yes. Q. -[KN] inappropriately, correct? A. Yes we did ask [CN] had she taken her to a doctor, no. Q. So you asked her that day did you? A. That night yes. Q. What did you say? A. We just - [GN] and I said, has she been to a doctor to prove this and she said no. Q. How did that conversation end? A. Not good, I ordered her out of my house.
49. I note that there is nothing in that account about VN hitting the wall or the table.
50. VN went on to give evidence about the garage and the shelving and further that the accused did not have a lockable briefcase (pp 262-3). She maintained that she was not aware of any pornography in the house. The evidence continued that KN never slept in the bed with her and the accused during sleep overs (p 266). She never noticed anything unusual about her lounge (p 265-6).
51. As the tribunal of fact I found the last few questions of the cross-examination of VN quite telling. The following appears at p 306/21: Q. I suggest to you that it's just a complete nonsense that the notes you were handed were not the ones that you've seen in Court today? A. Three of my other children also seen them. Q. Again that is just something that you're saying to try and help [GN] out? A. No, I am not. I just wish I had taken those notes [CN] handed me. Q. And you have no objectivity when it comes to this situation do you? A. My husband did not do it. Q. You're prepared to say whatever you can or do whatever you can no matter how absurd if it means helping him out? A. If I thought he was doing that I would protect my grandkids from him. But they are not frightened or they weren't frightened of him. They loved him. That's not a normal child.
52. VN in saying, "that is not a normal child" is still blaming the child and is firmly of the opinion that the child is fabricating.
53. Returning to the issue of the notes and the conversation with TN and CN the following appears at p 280: Q. You didn't ever speak to [KN] or [TWN] about what they were saying? A. No never. Q. You asked [GN] a question about it? A. Yeah. Q. He answered? A. "No no way", he said no. Q. So far as you were concerned that was the end of the matter. A. We were devastated. It would never, ever going to be the end of it. It's going to be with us for the rest of our lives. My family will never be the same because of this. Q. That's right, and immediately when you saw those letters, first you formed a very strong view that there's no way that your husband had done this. A. No. Q. You also formed a very strong view that the girls had made this up? A. I just couldn't believe that they would say. They love their pop. Q. That's right. A. They loved him. Why him? HIS HONOUR Q. Well, first of all just going to the Crown's questions. You didn't quite get around to answering them. Did you form that firm belief that what you read was not true? A. Not true. Q. Did you also form the belief that the girls had made it up? A. Yes. I can't believe they would do this. HIS HONOUR: They were your questions, weren't they Madam Crown? SOLICITOR ADVOCATE: They were, your Honour. WITNESS: Why did stay in contact with-- SOLICITOR ADVOCATE Q. Just listen, I'm asking some questions. So how long did it take you to decide, (1) he didn't do it, and (2) these girls have made this up? A. Straight away. Q. In an instant? A. Yes. Q. The only input you've had is having a look at the letters and [GN]'s denial? A. And the, the, the book that I got like with all this. Not this one but how - what the girls had said. And as I read through it I just could not believe it that they could do this to my 15 year old granddaughter. Q. You didn't want to believe it did you? A. It didn't happen. It did not happen. Q. Do you understand nobody is saying that you were immediately there when any of this happened? A. What do you mean, sorry? Q. Nobody is saying you were in a position to see any of these instances that the girls say happened? A. It never happened. It never happened. Q. Immediately you became angry? A. Yes. Q. You punched a wall? A. No, I hit the table. I punched the table. Q. You were so angry that you hit the wall - you say table? A. Yes, table. Q. You yelled for [CN] to get out of your house? A. Yes, and my son still stood there, and she kept saying, "She's told us to get [TN]. Now come on." And he still stood there in disbelief himself I think. Where is he in all this? Q. You didn't make any further enquiry? So after [TN] and [CN] left your house no further enquiry? A. [TN] we - my daughter was talking-- HIS HONOUR Q. No, I think you can probably answer that with yes or no. Did you make any further enquiry? A. As to what, communication with the family? SOLICITOR ADVOCATE Q. With the girls? A. Not with the girls, no. Except, yep, [KN] on Easter Sunday. Q. You spoke to other family members shortly after? A. Yes. Q. After [CN] and [TN] left? A. Yes. Q. Right from the start you were saying to other family members first of all that [KN] has made this up? A. Yes. Q. Because you didn't know about [TWN] at that time? A. No. Q. When did you first become aware that [TWN] was saying-- A. When my husband was called to the police station. Q. At the time you saw those letters in May of 2015 you were not working at that time? A. No. Q. You hadn't been working since 2013? A. Yes, two years I had off work. Q. You'd retired effectively? A. Yes. Q. So January 2013? A. When I finished? Q. Mm-hmm. A. June - I don't know. It was early in year anyhow, half way through. Q. Of 2013? A. Yes. Q. So therefore [GN] was bringing the income into the house? A. Yes. Q. You were in that sense at least financially dependent upon him? A. Yes. Q. You were concerned about people finding out about this, about what [KN] and [TWN] were saying? A. Well, they made sure of that. HIS HONOUR Q. No, were you concerned about people finding out about the allegations? A. No, because they supported us and knew it wouldn't be true.
54. At p 292 VN gave evidence about checking the accused's pay records to ensure that he was paid properly.

Conclusion

1. I have now thoroughly reviewed the evidence. It will be tolerably plain from what I have said that I accept the complainants TWN and KN beyond reasonable doubt. Many of the issues raised on behalf of the accused are of little if any consequence and to an extent seek to go into every detail of the minutia of the evidence. This is no criticism of Mr Barron who appeared for the accused and who I might say did an admirable job. The examination of the minutia was about all he could do given the nature of the case against him.
2. I was particularly impressed with TWN and KN as witnesses. I note that both made appropriate concessions, e.g. TWN concerning the accused helping her learn to drive and both of the complainants as continuing some type of relationship with the accused and his wife. As I have often observed it is far more difficult to explain why a witness is accepted as a witness of truth rather than to explain why a witness is not accepted. I have carefully considered all of the submissions made on behalf of the accused. I remain firmly of the view that I am satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of TWN and KN.
3. For the reasons given, in particular the issues relating to the truck diaries that I went into in some detail when dealing with the evidence of the accused I reject his evidence of the denials. I have given reasons why I also reject the evidence of the other witnesses called in the defence case.

Verdicts:

1. In respect of count 1, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
2. In respect of count 2, namely: That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
3. In respect of count 3, namely: That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
4. In respect of count 4, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
5. In respect of count 5, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
6. In respect of count 6, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
7. In respect of count 7, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
8. In respect of count 8, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
9. In respect of count 9, namely That you between 21 August 2003 and 21 August 2005 at Young in the State of New South Wales, did assault TWN a person then under the age of 10 years, namely 7 or 8 years and at the time of the assault committed an act of indecency on TWN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
10. In respect of count 10, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
11. In respect of count 11, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900 I find you guilty
12. In respect of count 12, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
13. In respect of count 13, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did have sexual intercourse with KN, a child then under the age of 10 years namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, 1900 I find you guilty.
14. In respect of count 14, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New south Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of such assault did commit an act of indecency on the said KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
15. In respect of count 15, namely That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN a person under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
16. In respect of count 16, namely That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
17. In respect of count 17, namely That you between 1 January 2014 and 31 December 2015 at Young in the State of New South Wales did assault KN a person then under the age of 16 years, namely 9 or 10 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
18. In respect of count 18, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales did assault KN a person then under the age of 16 years namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
19. In respect of count 19, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
20. In respect of count 20, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty
21. In respect of count 21, namely That you between 1 January 2010 and 31 December 2010 at Young in the State of New South Wales, did assault KN a person then under the age of 16 years, namely 4 or 5 years and at the time of the assault committed an act of indecency on KN, contrary to s 61M(2) of the Crimes Act, 1900 I find you guilty.
22. I wish to thank both counsel for the attention they both gave to this matter. Both parties were well represented. I wish to thank counsel for their patience in waiting for these reasons noting the difficult personal issue with which I was confronted in January.

Amendments 26 March 2020 - paragraph [157] - removed school name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2020