R v Isaacs

Complainant's evidence

1. The complainant gave two interviews. The first was on 4 July 2018. It is obvious from that interview that she does not know the difference between the truth and a lie. There was a ruling made at the earlier hearing touching on this issue. As was discussed there the High Court has made it clear in the case of The Queen v GW [2016] HCA 6, that evidence that is unsworn is not some inferior form of evidence to evidence which is sworn.
2. I note the following from the first interview: 87.1. After a series of questions concerning truth and lies the child offers without prompting the statement "my dad just done something bad". When asked to tell more about that she said "he done this" and motions with her hand in what I would describe as an up-and-down scratching motion of her groin area, and clearly on the area of her genitals. 87.2. Four questions later she says after having been asked who her dad is "I'm trying to get not fused". 87.3. She was asked, having been reminded of her hand gesture to say in words what her father did and she answered "Um, I don't know"; Q51, and then, in her next answer said "It, he done the tickle thing. It was here" and again she indicated her groin area by lifting her skirt up and placing her hand in her groin area and tickling her fingers. 87.4. She was asked to show on a diagram where it was that dad did what he did and she drew a circle around the groin area in what became exhibit B. When asked what dad did there she stated "the tickle thing" and said he used his hands. When asked what part of the body does she use that for, she stated "for weeing". 87.5. She was asked where she was when this happened and she said at my Granny's place and then said "my old granny's place". She said she was in her granny's bedroom. This suggests it is East Ballina that is being referred to, as by this time, 4 July, RE had left that residence. 87.6. When asked whether she was wearing clothes when it happened she said "I don't know". 87.7. When asked what she was doing before dad tickled her she said "putting my pants back up": Q70. She was then asked "You pulled your pants back up?" and she said "Yeah. Like dad done that", which I take to mean the accused pulled her pants up. 87.8. She was asked what did dad say when he did that and she said "Um don't tell mum. But I did". She said that she said to her dad to stop tickling me. 87.9. When asked if anyone else was there when she told her mother she said that nanny (SO) was there. I did not understand the evidence of ER to be to this effect. SO was there on the occasion when something was allegedly said about the alleged attempted fellatio. I note that when the complainant was asked what she told her mother the answer was simply "Dad tickled me"; Q82, with no specificity as to where. 87.10. The complainant was asked if this happened before this time and said no; Q80. If, as the Crown suggests, this is 5 May, it in all probability could only be one time, as there was no unsupervised time with the accused thereafter. 87.11. When asked if daddy tickled her anywhere else she offered that he tickled her on the bum. This was not part of the disclosure to the mother. It is not part of the alleged offending conduct. 87.12. She then says part of the body is the penis when the diagram is of a female. Whilst this shows a lack of knowledge or understanding of body parts, I do not consider it impacts on her disclosures. 87.13. The complainant then says that she loves her father and on being asked what she did the last time she went to see dad she says "um he um licked me here" and, in a manner very similar to her earlier demonstrations as to tickling, lifted her skirt and placed her hand on the area of her genitals. When asked to indicate this on the diagram she placed a cross on the inner thigh. The demonstration makes it clear she meant the groin. She said he used his tongue and that it happened in the bedroom on the bed at Granny's place. She said her clothes were off. When asked did daddy say anything when he did that she said he said "are you finished" and that she said "yes". She said she said "I finished". 87.14. She said the licking occurred at different times.
3. In the second interview on 21 March 2019 the focus was on the count 3 allegation, with little being added to the allegations founding counts 1 and 2.

Disclosure / complaint evidence

1. ER evidence as to the complaint she says was made on 7 May 2018 is set out above commencing at [75].
2. SO also gave evidence as to disclosure. So far as it relates to count 3 it is referred to below. She also gave some evidence as to alleged licking. However as I understand the evidence and I find this relates to the statement by the complainant in late 2017 which does not form part of the charged events. At T81 she says this conversation occurred a few months after her daughter had moved in with the children. It was put to her whether it was still 2017 or whether it was 2018 and she said she thought it was 2018 but could not remember the month. She said she thought it was after Christmas of 2017 which may suggest a time closer to Christmas than to May 2018. She alleges that the complainant said "daddy licks my-licked my vagina my vagina" and pointed. Having heard this she said to the complainant that "daddy is a sick man and you know it's not [her] fault that this happened" and "he's sick in the head". The allegation in 2017 was of licking, not tickling. That fact, and this witnesses confused evidence as to dates, prevents a finding of this disclosure being other than what occurred in 2017, so that it does not relate to count 1.
3. The challenge to SO is as much to her reaction to the kitchen disclosure about count 3 as to anything else. So far as her evidence goes to the earlier matters it seems and I find to relate to the late 2017 incident. So far as SO reaction to the late 2018 disclosure (concerning count 3) is concerned she was criticised for not contacting police. Given that she was living with her daughter, that statements had been made to police about alleged sexual misconduct earlier in the year and that there was contact with the police in either late December 2018 or early January 2019 about this I do not consider that criticism persuasive. What is clear from the cross examination is that there is a decided lack of detail about either the earlier or later disclosure. She says that her daughter never said anything to her about the earlier licking occasion which makes her evidence odd about the references to that matter. In relation to the later allegations neither the complainant nor ER told her where it was meant to have happened. She denied saying to the complainant that she would have to tell the police what daddy had done. This is at odds with the complainant's evidence.
4. SO was not a very impressive witness. She stated that she was very nervous and she appeared to be very nervous. With all due respect to her it was difficult not to gain the impression that she was somewhat bewildered by the situation she finds herself in. I do not consider, and nor was it actually put to her, that she was part of some attempt to spitefully distance the complainant and the son from the father. Rather it seems to me she was very concerned for her granddaughter and the question really is whether what she says she has heard from the child can be relied upon.
5. The complainant's other grandmother, her paternal grandmother RE gave evidence concerning two occasions of what the Crown relies upon as complaint evidence and also some general evidence. It was her home at East Ballina where the alleged offending is asserted to have occurred. She had contact with the complainant after the parents had separated in late 2017 and after there was police action in June 2018. She aided the parents by not only by helping her son with accommodation but also by assisting with picking up and dropping off the children from ER home as ER did not drive and at least part of the time the son was incapacitated. This included one occasion of attending at the home of Mr K which is what is said to have been the location giving rise to the late 2017 licking disclosure. She also gave evidence of the times that the complainant stayed at her place after the accused moved in on 19 April 2018. She said the first occasion the complainant slept with the accused and the second time she stayed with her which I take to mean stayed in her room with her. There was also evidence that on the occasion the complainant was in the father's bedroom the door was left open and he was recovering from his operation which is argued to minimise the likelihood of any offending occurring at that time.
6. She gave evidence that on 14 June (her birthday) in 2018 she received a phone call from the complainant whilst she, RE, was at a restaurant. In her evidence in chief she answered at one point to a question that was asked "I don't see the relevance". For most of her giving of evidence she sat leaning forward with her chin resting on her hand. In terms of demeanour she came across as projecting a mixture of something between disinterest and impatience. The conversation she says occurs on the phone call was of the complainant saying "daddy's been really naughty with me" And RE says "what are you talking about darling". The evidence is a little confused because at T113 after that was said, it is said ER takes the phone and says words including "we won't talk to Granny about that today" and RE went on to say that ER said to her something. It seems the phone is with ER yet RE was then asked whether the complainant had said anything else to her and she said that the complainant said something along the lines of "he's been tickling me. And when he tickles me it doesn't tickle me it hurts. He touches my gina". At this point in the trial the witness complained of having a headache, and accepted an offer to have a break. In the course of the break it was later accepted that she had been reading her statement.
7. RE then spoke to the accused about this conversation but only some weeks later in July 2018. She said that he denied anything that the complainant had said. RE asked him about the AVO and he sent her a copy although it missed the page with the description of the concerning behaviour. He told her that he had been playing tickling games with the complainant and that he may have brushed past her vagina but it was unintentional. RE said "I actually just felt quite sick about the whole thing and RE used to communicate with him better than I did so I said 'I'm going to get RE to talk to you about this stuff'. He's supposed to talk better together. It says "I'm just going to take a back step from minute while I absorbed all of this" [The reference to "RE" I take to be a reference to Ali, who was then the partner of RE].
8. The information gained by RE could obviously cause a degree of distress. That it reaches a level that there needs to be some intermediary to communicate with the accused seems a little extreme. There is also seemingly no allowance for the possibility of an innocent explanation. To some extent this is irrelevant, and the crucial part of this evidence is what the complainant is alleged to have said.
9. The Crown sought to make something of the accused not sending the whole of the AVO document to his mother. The actual AVO application is not in evidence so it cannot be seen what the witness RE was not told. She does however know at the time she was sent part of the AVO the essence of the tickling allegations. I do not take into account adversely to the accused the fact he did not send this page to his mother.
10. The second disclosure by the complainant to RE was on 24 August 2018 when she collected her to take her to the Gold Coast to stay where RE was then living. The evidence was that again the child said "daddy's been really naughty with me granny" she said the child said: "He used to be tickling me but he wasn't tickling me. He was touching my vagina it hurt". RE asked if she asked the accused to stop and says the complainant said "he just wouldn't listen granny. He just wouldn't listen to me. He just didn't listen." Further it was said that the complainant said "and he licked me. He licked me and he licked my giny".
11. In cross examination RE said she was shocked when she heard what the complainant said in June 2018. She agreed that she had told police that the complainant said "he's been touching my gina pretending to tickle".
12. She was asked when she told or spoke to her son about this but she could not recall exactly when. It was put to her that she told police it was in July 2018 and she stated "I don't know what it is you're trying to ask me" which I would put in a similar category of answer as her relevance comment in chief. These matters together with her demeanour give me some cause for concern as to her reliability.
13. In fact she agreed that she did not tell the police about talking to the accused about the allegations at all but rather recalled a conversation concerning supervised access. She said that was obviously missed out of her statement which adds to the misgivings noted above. There was then some challenge to the quality of the relationship between RE and the accused concerning events whilst he was growing up. In short, at the age of 17 she left him with friends for 10 months and had issues relating to heroin but she maintained that she did what was right for them. The accused in his evidence disagreed with that view.
14. Importantly at T125 she agreed that after the accused's operation on 20 April 2018 he was not really in a position to look after an active four-year-old. She said she was helping and did all the cooking and the basics. The accused was on fairly heavy pain medication. She agreed on the two occasions that the complainant stayed at her place prior to 5 May that on one occasion the bedroom door was open into the accused's room where he slept with the complainant. On the second occasion she agreed that the complainant slept with her. She agreed that those were the only two occasions of the complainant staying overnight at her place when the accused was there, other than I would add the night of 5 May.
15. At this point at T126 she was challenged about reading her statement in the earlier short break. Frankly, there is nothing improper about that but her answer was far from comforting when she said "I wasn't looking at exactly that part and I can't-I'm not even answering that. I don't understand what it is you're trying to say. You're saying something about me being out there?" This further adds to my earlier misgivings, and whilst I would not find definitively that RE has an "axe to grind" concerning the accused, I do not consider her a reliable witness.
16. Exhibit 3 was tendered through this witness which showed the days she had worked in the period April through to May 2018.
17. RE was challenged on any steps she took after hearing these alleged disclosures. In particular she was challenged as to whether she ever passed on the car conversation to ER. This evidence was very unpersuasive and at best amounts to an "I don't recall" style of answer.

Disclosure / complaint evidence

1. No precise date is discernible from the evidence as to when a further particular two conversations occurred, firstly with the complainant and her mother, and secondly with her grandmother, SO, part of which ER heard and was present. The alleged date based on the evidence of ER would appear to be in November or December 2018. An AVO had been taken out on 6 July 2018 naming the accused as the defendant and the complainant as the person in need of protection, and the accused had not seen or spent time with the complainant since before that date. The complainant had seen the accused about 3 times since 6 May 2018, with the mother present. The complainant had therefore not had any contact with the accused since 6 July, so some 4 to 5 months, and barely any since 6 May, so some 6 to 7 months.
2. In her evidence in chief, ER said she was bathing her children when she saw the complainant (now 5 years old) touch the penis of her son, approximately 2 years old. ER said to stop it and that it was inappropriate, and the complainant became upset, cried and began apologising. ER asked the complainant why she would do that, meaning, presumably, the touching of a penis. The complainant replied "Daddy made me touch his willy". There was then at that time no further conversation.
3. When asked if she ever heard the complainant say anything else about anything that occurred between her and her father ER said the following night. She described sitting on the toilet and overhearing her mother talking to the complainant in the kitchen. Ms Robert's agreed she had spoken with her mother about "the information you'd received in the past" from the complainant, which is presumably a reference to the alleged inappropriate conduct of the accused concerning tickling and licking, though it could be a reference also to the night before. ER said her mother overheard the complainant become upset coming down the stairs the night before, which is presumably a reference to the bath incident. ER said when she was on the toilet she overheard the complainant say "My daddy's a bad man" and overheard her mother say "What daddy did to you was wrong and he is sick in the head", and also that SO asked if "he'd done anything else to her". At this point ER walks out of the toilet, and the complainant looked at her and said "Daddy used to put it in my mouth". ER then says "What, his penis?", to which ER evidence was that the complainant responded by "I think she nodded her head, as in yes".
4. 109. At T254 ER was cross examined on this event by reference to her statement, to the following effect: Q. And then you come out and your mother asked [Complainant] a question, and then you said that the first thing that [Complainant] says to you is that "Daddy used to get cranky because he used to put it in my" and pointing to her mouth? A. Yes. Q. Then you say, "What, his penis?" and she nods her head? A. Yes. Q. So, you in fact are the person who introduces the word "penis" to her? A. No, she's heard that word before. Q. Well at that stage, she could have meant anything, couldn't she? A. She could of. A significant part of the accused's case concerns the chronology of events preceding these 2 occasions of disclosure. That chronology is as follows: April to June 2018: Requests by the accused to see the complainant. 7 May 2018: Initial disclosure/complaint. May / July 2018: last occasion the complainant sees the accused. 4 July 2018: Complainant interviewed by police. 6 July 2018: AVO made on interim basis. Nov / Dec 2018: Further disclosure. 7 December 2018: Police email, exhibit 2, relating to terms of AVO, and stating ER had recently disclosed "further details to her including an incident of [the accused] putting his penis into her mouth". 10 January 2019: ER sees the counsellor of the complainant. 18 January 2019: AVO matter seeking final order in court. Final order made that day including order 6C, under the heading "Orders about family law and parenting", prohibiting contact between the complainant and the accused unless the contact is ordered by the Local Court or another court. 25 January 2019: ER notifies the police "Helpline" of the disclosure said to have been made at about 7 December 2018.
5. 21 March 2019: Second interview of complainant.
6. The clear suggestion being made by the accused is that the emergence of the further disclosure coincides with the approaching date of the final AVO hearing. Further, the accused points to the lack of urgency in how ER deals with this alarming revelation. I accept this submission. The first evidence of the police being told is in the email of 7 December 2018. It was that email which would seem to be the basis for the Crown to make the reasonable and fair submission that it was when the police contacted ER to discuss the AVO that ER reported the disclosure leading to count 3. Further she did not contact the helpline for 2 to 3 months. In my view this adds some weight to the argument for the accused that there is a connection between the further disclosure and the upcoming AVO hearing.
7. Following the court making the final AVO, ER does make a report to the helpline, and then on 21 March 2019 the second interview of the complainant occurs.
8. At T88 SO said that she asked "what did you do" and the complainant said "it hurt and daddy was cranky and she sucked and stopped sucked and stopped". At this point her daughter ER walked into the room. As noted at [114.8] below, the complainant does not know what the word "suck" means at this time. On SO version, the complainant said to her in the kitchen (at T87) "he made me put his penis in my" and pointed to her mouth. That is, SO has the complainant first using the word penis, and ER does not.

Complainant's evidence; the second interview

1. I note the following from that interview: 114.1. The interview begins with a series of questions about truth and lies. The interviewer then says at Q19 that it is important that the complainant tell the truth. At that point without any further prompting the complainant stated "Um, my father, tickles me and stuff and he licks me and he makes me suck on his willy". This occurs very early on in the interview. Sensibly the police officer then asked "now did someone tell you before you start to come in here and tell me those things?" And the child said no. 114.2. After having seen the video of the first interview the child is asked at Q34 whether anything else happened that she did not tell the officer last time and she replied "not the willy part". The complainant said "Um, he made me try suck, let me try and, let me suck on his willy but I say stop". Rather than tease out in the complainant's words what it is the complainant is saying the following question at Q36 is "okay. So you said he made you try and suck on his willy" with the answer being "yes" and with the next question being "but you said stop" and the answer being "yes". The complainant was asked where this occurred with another question confirming the allegation namely "okay so where did, where was his willy when he made you try to suck on his willy?". The complainant then pointed to her body and there was then reference to a diagram. 114.3. When asked when he tried to make her try and suck his willy, the complainant said a long time ago. When asked where she said at Granny's place in the bedroom. When asked what he said to her she said "I don't remember". 114.4. At Q50 is another affirmation of the asserted allegation by the questioner namely "yeah so you said he made you try and suck his willy so where where did he put his willy" and the child said "right here" pointing at the diagram so she was then asked where did he touch you with his Willy and she again pointed. 114.5. By this stage the question has almost become an instruction when at Q52 the question was "he touched you, where did he touch you with his willy" and the answer was "he didn't touch me". 114.6. The next question Q 53 is "oh he didn't touch you with his willy" and the answer is "yeah" 114.7. At Q54 the question is "Okay. What did he touch you with?" and the answer is "Um, nothing". The follow-up question is "nothing" followed by "but with his hand he tickled me". In other words when being asked about this latest allegation the complainant not only says it did not happen, but reverts to stating the earlier allegation. This prompts the interviewer to again affirmatively state the allegation in the question at Q57 "okay so when you said to me he made me try and suck his willy what did he actually do?" And the answer was "Um, I don't know". When asked "what do you mean by suck his willy" the answer was "oh, I don't know". 114.8. The complainant does confirm that something happened though just what questions 62 through to 69 mean is far from clear particularly when the complainant is asked "what made you tell me that he made you try and suck his willy?"; Q62, the answer is "I don't know". Perhaps even more concerning is that when the complainant is asked at Q69 "what does suck mean" she answers "I don't know"; then when asked "Well what, what do you mean when you say daddy made me suck his, tried to make me suck his willy" she answered "I don't know". 114.9. The interviewer then fairly asked where those words came from and in a confusing answer the complainant said daddy. I say confusing because assuming the allegations are true it would hardly be expected that he would be saying such things. 114.10. Perhaps the most favourable to the Crown case this interview becomes on this count is from Q79 where the complainant says "he tried to put it near my mouth" when answering the question what did the accused actually do. The problem however is that is in answer to a question which assumes the answer or simply is leading or is the interviewer's repeated affirmation of what is sought to be proven namely the question "and I'm just trying to work out what he actually did to make you suck his willy or try to suck his willy". Then in questions 81, 82 and 83 there are more confusing answers because firstly the complainant says she knows he was trying to put it into her mouth because she was at his place, an answer with some disconnect, and then in Q82 the question is "did he say anything to you when he tried to put" is answered "yeah" and then when the question is completed "it in your mouth" the answer is "no". The same question is answered both negatively and affirmatively. When asked at Q86 "can you remember what happened when this happened, when he tried to make you suck his willy", the answer is "um no don't remember". 114.11. As to when she told her mother about daddy trying to make her to suck his willy the answer was that it was not when she told her mother that he tickled me. The complainant said at Q92 and Q93 that it was "a longest time ago" and "a long long time ago" and it is what she had told her mum first; see Q94. On the mother's version of course the attempted fellatio disclosure is the most recent one. 114.12. The complainant is then asked at Q95 "yeah and where were you when you told me that he made you suck his Willy ?" Putting aside just how confusing that question is, the answer is "at granny's place" and the follow-up question is "what part of granny's place were you in when you told her". It needs to be appreciated that the reference to "granny" in the evidence is always to SO and the reference to "nanny" is a reference to RE. The answer given is in the bedroom and then she is asked was anyone else there when she told mum and she says no and then says her brother and nanny. It would appear the complainant is now talking about something occurring when she was at RE house and that her brother was there. The Crown case is that the alleged offending occurred when the complainant had a sleepover at that residence but the brother was not there. 114.13. When asked at Q104 why the complainant did not tell about him trying to make her suck his willy last time the answer was "it cause I didn't want….I didn't remember". There is then another leading question of "you didn't remember it or you didn't want to" and the complainant says "I didn't want to". When then asked why she didn't want to, the answer was "I forgot it that bit". When asked "you forgot it" the complainant said "yeah it was getting too late". On one view that might suggest that the first interview had gone too long for her and she did not tell her whole story, but that is not something that is picked up on in the interview and investigated. As the matter stands there is a very good basis to infer that she did not remember the incident leaving open an inference that it did not happen.
2. The complainant was cross-examined. I note the following: 115.1. She said that she thought what her dad had done was something bad because it was inappropriate. When asked whether she knew what inappropriate meant she said no. It was her mother who had told her that something was inappropriate and that something was bad. See at T13. The suggestion of contamination is obvious. 115.2. On the other hand when asked what she had told her mother before her mother said it was inappropriate she expressly said "that he made me suck his willy". Yet as was made clear in the following questions what was being cross-examined on was the first interview where the complainant had only spoken of the "tickling thing" and the "licking thing". A competing interpretation of this evidence in cross examination is that the child is repeating matters that she has been spoken to about rather than giving reliable evidence as to the matters disclosed on the words spoken to her mother back in May 2018. In a follow-up question at T14 as to what the reference to inappropriate was the answer was "I forgot". Added to this is, as noted at [114.8] above, the complainant said she does not know what "suck" means. 115.3. Also at T14 the complainant confirmed she had told her mother about the tickling and licking thing which her mother said was inappropriate. 115.4. The complainant was asked about getting to the first interview and she agreed that she was taken there in a car by her mother and SO and that one of them said she needed to tell Kath (the police officer) about the bad things that daddy had done and that she needed to tell Kath about the tickling and the licking thing, with the clear suggestion being the child is primed to simply make those statements. 115.5. The child gave a different version of events as to how she came to tell her mother of the tickling. She denied that she had been tickling herself and she denied that her mother had got cross with her because she was touching her vagina though she did say that her mother had said touching her vagina was inappropriate. She agreed that her mother asked if her father had touched her vagina that is she agreed to the leading question being asked. She said that was when she told her mother about the tickling. 115.6. At T18 she was asked about the tickling thing and that she had said she was putting her pants back up. When asked if she was on the toilet she said "I don't know"; when asked if daddy was pulling her pants back up she said "I don't know"; when asked if dad ever put cream on her vagina she said "I don't know". She agreed however that she did tell her mummy that daddy licked her on her vagina and went on to say it happened more than one time. After that however there were more responses of "I don't know". She was asked if when she told ER about the licking thing did she ask what had happened and the answer was "I don't know"; she was asked if ER asked if it happened more than once and she said "I don't know". 115.7. When asked about the licking allegation she agreed that she had said the words that she had "finished" in the video of the first interview. She then replied "I don't know" to the following questions: were you on the toilet: do you know what you are finishing; do you know whether you were sitting up laying down walking around or something else; do you know where daddy was when he asked you if you are finished; and could you see him. The impression one is left with is that she is incapable of giving any description of the event other than to make the assertion that it happened. A short break was taken and then on T21 she either could not remember or did not know what the father was doing at the time of the tickling thing and the licking thing respectively. 115.8. She was then asked about the second interview and the odd answer noted above that the words to the effect of "daddy made me suck his willy-tried to make me suck his willy" came from the accused. She was asked when the accused used those words and answered "I don't know". She then agreed that she had heard those words from her mummy and from her nanny but not from Granny SO. She then agreed that her mother and RE used those words before she spoke to the police officer Kath (DSC Kirby). 115.9. The complainant was asked whether her mother spoke to her about touching her brothers willy in the bath and she said no. She later at T25 when asked if she had touched her brothers willy in the bath and said "nope". That means that she has disagreed with the two scenarios put forward by the mother which were the precursors to the disclosures of 7 May and then in the late November/December period of 2018. 115.10. The part of the second video where the allegation of the father trying to put his penis in the mouth of the complainant was made by her was referred to. The complainant was then asked where was the accused when that was said to be happening, was he standing up sitting down laying down or something else. As with the other allegations the complainant said "I don't know". The question of how she knew he was trying to put it into her mouth and the answer "cause I was at his place" was referred to. The complainant was asked if she knew what she meant when she said that and she answered "no". 115.11. The complainant's evidence in cross examination was that the accused did not have a sore leg when either the tickling thing, licking thing or the attempt to suck his willy occurred. She also said that he could walk around which on my view of the evidence is accurate albeit perhaps not freely.

The accused gave evidence

1. The accused gave evidence that ultimately as a result of his motorbike accident he ended up with an amputated leg. The operation on 20 April 2018 was part of the surgery arising from that accident.
2. He said there was only one bed in his cabin at the caravan park he lived in from 4 December 2017 to 19 April 2018. It is notable that in that time no allegations arose.
3. In that time the complainant stayed with him "pretty much every Friday night". He was seeking to have an arrangement where the children spend more time with him. One issue apparently was that ER said he was not allowed to have the kids around Ms JS with whom he had formed a relationship. He said that ER said if she found out that JS was around the kids then he would not be seeing them. He said she had mentioned withholding access to the children while they were together. Despite his mother giving him some assistance with his injury and a place to stay he said his relationship was not that good with her and never had been.
4. His evidence as to the two occasions that the complainant stayed overnight at East Ballina was largely consistent with RE in that on the first occasion she stayed in his bed (I would note as she had in the period December to April) and on the second occasion in RE bed. It seems most likely that there were three occasions in total, the 2 just mentioned and on 5 May, and with the middle stay likely to have been 2 nights. It also seems likely to me that regardless of whether or not RE worked on those days she was residing at the premises at that time. Plainly however the opportunity existed for the offending as she was not there the whole time. The accused's evidence which was not detracted from on this point was that on the third occasion that is 5 May the complainant stayed in her own bed. He said at T285 that she did not sleep in his bed because he was in pain.
5. Prior to the allegations being made he said that he had been trying to get what he called more "visitation" with the children and that he thought a first call had been made in respect of mediation. ER had called them and he had spoken to them. He said the mediation did not go anywhere as the allegations arose. In July there was the AVO prohibiting him spending time with the complainant. The AVO was based on the allegations of tickling, it is not clear if it referred to licking. The accused contested the AVO and a final hearing date was set. On 12 December 2018 the accused's solicitors sent a letter proposing a resolution of the AVO proceedings, which had been preceded by his solicitor proposing it verbally. Just how much before takes on some significance. There was no evidence as to just when that call was made. Exhibit 2 however is an email passing between police dated 7 December 2018 and that is the first record notice of the fellatio or attempted fellatio disclosure. In passing I note that it records that the mother told the police that the complainant had said the accused put his penis into her mouth rather than being an attempt to do so. There must be a real prospect that that disclosure was made after the verbal conversation between the solicitors. It is accepted that the first report of the attempted fellatio disclosure was made when the police contacted ER to discuss the AVO matter; that is, ER did not contact the police for that purpose.
6. The accused denied the allegations and they were put to him in chief and he gave evidence which is not challenged that he had never been charged with a sexual offence and further that in addition to his relation with ER he had other normal relationships with other women.
7. He clarified or sought to clarify some of the text messages including one on page 15 of Exhibit 6 where he says that he has "sucked everything up" and in another text that he wished he could fix things or words to that effect. His evidence was that he was referring to his relationship with ER and that he had become angry when he was in pain and yelled and he felt he had hurt his children. The Crown does not argue that this was some kind of admission.
8. It is also common ground that he had suggested to ER when she spoke to him on 7 May that she take the complainant to the doctors. In other words he is encouraging investigation into the concerning remarks.
9. When the allegations were raised with him by ER he ran through with her what they had done which was watch a movie, have dinner including popcorn, cleaned up and gone to bed. He said the only thing he could think of [to explain the complaints of 7 May] was "it could have been, would have been me tickling her and then brushing past" (T294) when he had tickled her. The accused said that when the complainant went to the toilet it was necessary to make sure she had properly wiped her bottom. Then she finished showering he would finish dry her properly. He would help her dress. It was common ground that the complainant needed assistance with her toilet hygiene, and there is no suggestion she was not assisted with drying after bathing.
10. In cross examination something was sought to be made by the Crown that the accused should so readily recall the 2017 event when ER raised the allegations in May 2018. With respect I accept what the accused says in this regard; I consider a recently separated parent would have a very good memory of such an allegation or concern even when it was resolved amicably, and even more so in circumstances where a similar matter is raised. The Crown also does not give enough credit to the fact that the matter had been raised in terms of the cream the night before.
11. Much was made of the incomplete AVO that was sent to RE. As noted above without knowing what it says beyond the tickling allegations it does not seem to be a matter of great moment.
12. What the Crown did establish and gained a concession from the accused about was that there were times when the complainant was at East Ballina when RE was working. This was established through the text messages. There would seem to be little point in exhibit 3 other than to support an argument as to a lack of opportunity. Yet the presentation of the accused's case appeared somewhat restrained in this regard. In my view the messages are open to another interpretation, that there may have only been one night spent by the complainant on the second occasion, not two. In my view, that the accused accepted it to be two stands him in good stead. Whilst it is true as submitted by the Crown that it was obvious there were times RE was not there, so that the accused "had nowhere to go", that did not extend to the number of nights point. It showed a witness prepared to make concessions. In contrast to ER and Ms SO, the accused appeared in the witness box far less bewildered, and presented as a level headed concerned person.
13. The accused was challenged about the text sent on 7 May after he had spoken with ER which is at page 10 of Exhibit 6. That text was as follows: The first one I noticed was that what the hell thing she says. Then she has also sat there after a shower as I will dry her hair and dress, but very careful with that already. But before she gets dressed, she has touched herself like that. I ignored it as thought it could have been her trying to shed out. I do tell her to go to her room if she wants to touch herself as it's not appropriate in front of people. I didn't sleep well last night so I was asleep when you called and I'm still groggy so if I think of any other weird things I will tell you"
14. It was suggested that it was convenient to raise that he had seen her touch herself after these allegations had been raised. The answer was that he did not think much of it.
15. It was also put to him that it was strange for a father to send a small child to their bedroom if they wanted to touch themselves. The accused said that he thinks it is not something that should be done in front of other people. It was then put to him that he should be telling his child that she should not be doing it at all. The accused stated "what so people can't like trying to be curious about themselves".
16. I do not consider that the criticism of the accused is well-founded in this regard. Different people have different approaches as to how to deal with matters that commonly occur such as this. The accused rejected the idea that his explanation made no sense whatsoever. In my view there is nothing nonsensical about the father's response albeit that it might not be the response of everybody.
17. He was also criticised for his calm and polite responses to the allegations were being made in the texts. Yet he gave some evidence that he had been more abrupt in other responses on the phone and was apologising for that.
18. It was then put to him that he had been naked and in bed with his daughter by reference to page 20 of Exhibit 6. Again I do not think the criticism is valid. It is as the accused maintained plainly open to interpretation as being two different things namely that he won't be near her naked and secondly that she won't stay in his bed. The father is plainly going to some lengths to try and appease the mother and give her some comfort that the concern she has can be addressed. Nor do I think it significant that the accused conceded that he had been naked in his daughter's presence.
19. He was challenged as to not firing back when on 23 June ER said "are you serious after what you did to police". The accused said what would be the point. Again to take a civil approach as opposed to an inflammatory argument by text seems to me to stand the accused in a good light on a bad light.
20. The accused denied the allegations and they were ultimately put to him.
21. In re-examination, he confirmed that the expanded message on page 20 was his apology for getting angry on the phone about the allegations. He was in response to a phone conversation he had on 10 May which was along the same lines of what ER had said on 7 May.

Consideration

1. In the conversation between ER and the complainant on 7 May 2018, following the phone call with the accused, ER asked an open question of when and where did it happen to which the answer was "at daddy's old place". It needs to be noted that at the first trial that evidence was not allowed. In this trial it was allowed in on a certain basis. The effect of the exchanges of the Crown and the accused's counsel Ms Cusack and the court commencing at about T165 is that given the way the first trial had been run and the way in which the Crown case had been particularised the reference to Ballina is a reference to RE premises at East Ballina. The evidence was allowed on the basis that the Crown would not make any submission that the offending occurred other than at Ballina, which on the basis of the discussions just referred to is a reference to 8/1 Grandview Parade East Ballina.
2. The major submission of the Crown is that the evidence of the complainant as contained in her two recorded interviews should be accepted. To the extent that the complaints are delayed, and that there are variations in different versions, the Crown points to the sexual assault directions set out above, and argues that such delays and variations should not detract from the reliability of the complaints. It was argued that any suggestion of the complaints being contaminated by the conduct of others should be rejected, though just why was not entirely clear.
3. I consider that approach to be too broad sweeping on the facts of this case. The directions the Crown refers to do not mean that inconsistencies and delays are not to be considered in assessing reliability, but simply that they should not be taken as meaning the alleged conduct did not occur. All the facts and circumstances of each case need to be considered.
4. Returning then to the first disclosure. After the complainant said in answer to the question of where and when it happened that it was "at daddy's old place" ER then said "did it happen at Granny's?" and the complainant said "not when Granny was there" inferentially agreeing that it did happen at Granny's. ER then asked if it happened the last time she stayed at daddy's which was only the previous day and the complainant said yes.
5. This passage is emblematic of the difficulties in this case. The complainant first refers to "daddy's old place" which could be a reference to the cabin (and the agreed express basis stated by Ms Cusack to allow the question previously ruled inadmissible was that the Crown not assert this is a reference to the cabin), or when he stayed with Mr Keys or perhaps even but less likely the former family home. Given the earlier incident with the cream the prospect of it being Mr K place (albeit the father was only there for about two weeks) is not far-fetched. ER then asked two questions namely whether it happened at Granny's which the complainant implicitly agreed with and then asked if it happened the last time the complainant stayed at Granny's to which she also agreed. Whatever "daddy's old place" refers to the one place it is least likely to refer to is the premises that he was currently at and where the complainant had been only the day before. The real prospect of contamination is obvious with the complainant agreeing with what the mother has suggested immediately after having said something different.
6. There is then reference to licking in this conversation. The interpretation of the mother is on one view irrelevant. However the words spoken by the complainant support her view as the complainant's question "do you mean the licking thing?" suggests that it is something the mother already knows about. Subsequently, there was reference by the father to what had happened in about late November 2017. There was a submission by the Crown that it was peculiar that he would remember that incident. I reject that submission for the reasons given above, and consider a person who has recently separated and is challenged about such a topic is very likely to remember such a concern.
7. The state of the evidence concerning the licking disclosure however is far from persuasive that there was some act of cunnilingus performed by the father as alleged. Furthermore when ER asked the complainant the direct question "did he lick you" ER said the complainant's response was "I think she said yes. I can't-I don't". In other words there is no definitive evidence that the complainant made a complaint about licking at this time and the evidence really suggests the mother does not remember or cannot say.

Counts 1 and 2

1. The evidence of the complainant amounts to the following as to tickling: 144.1. Her demonstration of scratching her groin with her hand in the first interview, after saying "he done this"; 144.2. Saying "he done the tickle thing" and repeating the scratching demonstration; 144.3. After marking her groin on the diagram, she stated the accused did "the tickle thing" there; 144.4. That the accused tickled her; 144.5. The complainant also said the accused told her not to tell her mum.
2. Also in the interview concerning tickling, the complainant: 145.1. When asked what her father did, said she did not know; 145.2. When asked if she was wearing clothes, said she did not know; 145.3. Said before the accused tickled her he had pulled her pants back up.
3. The evidence of the complainant as to the licking amounts to one line of the interview, where she said "he licked me here" and then lifted her skirt and placed her hand on the area of her genitals. When asked whether the accused said anything, she said he asked "are you finished" and she said "Yes" and "I finished". This has a suggestion that whatever was occurring was occurring at a time of toileting, though can in no way explain "licking".
4. One feature of the cross examination of the complainant is that it shows the complainant was not able to give any real detail of the occasions of this alleged offending. Her evidence amounts to little more than bare assertion, supported by the complaint evidence. It also has to be viewed in the background set out above, where there is obvious hostility between the accused and ER as can be seen in the text messaging, and disdain by SO of the accused, who she describes to the complainant as being "sick in the head".
5. Subject to considering the complaint evidence, I consider the Crown has fallen well short of satisfying its high onus concerning the licking charge. In addition to the brevity of that evidence itself, there is the circumstances of it arising, namely of an increasingly hostile relationship break up, and the admitted attitude to JS and her children should not be forgotten, and there is also the background of the 2017 event which on one view may be what is being referred to. In addition to that, the evidence of the complainant is that when this happened she was asked if she was finished and said she was, which clearly suggests she may have been going to the toilet, which may explain some touching of her in the region of her genitals, though clearly it would not explain any use of the tongue.
6. As to the complaint evidence I do not place weight on any evidence of SO in respect of these counts for the reasons given above.
7. As to ER concerning the licking, this is discussed above and is arguably not a complaint at all, but a reference to 2017. There is no evidence of what the complainant said to the question "did he lick you".
8. The evidence of RE was of the child stating the accused licked my giny. My view of RE, the lack of any real detail in the alleged disclosure, and RE failure to take any significant steps after hearing this statement, lead me not to place much weight on this evidence.
9. As to the tickling, the complainant's evidence as summarised above is much stronger. Yet as with the first count, the complainant is bereft of details beyond the actual tickling, something laid bare by the cross examination, and of asking the accused to stop. There is again a reference to what may be toileting, and in this instance the reference to "pulling up", which could well be her pants, is said to occur before the tickling, suggesting the offending conduct did not occur.
10. A consideration of the complaint evidence of ER concerning the tickling charge results in grave reservations about accepting it. As set out above, the complaint emerges from a number of very leading questions. In my view evidence gained by way of such leading questions is likely to lack persuasion, particularly when, as here, the complainant is unable to give much, if any significant, surrounding detail in cross examination, detail that was not available in chief.
11. The complaint evidence of RE is at face value of greater weight than that of ER. That said, it is of concern that the phone call was initiated by ER, and as submitted by the accused, it has the flavour of promoting the complaint. The same cannot be said of the complaint in the car. A complaint made twice however does not mean it is more likely to have happened if just made once.
12. I note also that the complainant arrived for the first interview in the company of ER and SO. There had been talk in the car of what she was to tell DSC Kirby. In the interview the complainant stated unprompted that her dad did something bad and gave the statement summarised above. In some circumstances not much may turn on this, and even here it may simply be the adults were seeking to relax the complainant. Yet the facts also allow for the prospect of the complainant repeating what she may consider she is expected to repeat, rather than detailing what, if anything, happened.
13. The complaint said to have been made by the complainant on 7 May is very brief. In relation to tickling it is "Daddy tickles me there and it feels nice". The clear inference is that the accused is inappropriately touching the complainant's vagina. Yet the complainant is 4 years old, and the prospect of the accused engaging in some tickling game with the child is far from irrational. It is later in the day, after ER has spoken to the accused that there are then some further statements of the complainant. It is noteworthy that when first asked where this occurred the child states some place other than what the Crown asserts, which is that it was at Granny's place, that is, RE place, which is relevantly East Ballina. The first time that suggestion emerges is from a leading question asked by ER, who asked "Did it happen at Granny's", and the child says "not when Granny was there", which is followed by another leading question, "So did it happen the last time you were - stayed at Daddy's". It is a concern that the location of the alleged offending so rapidly changes following leading questions, leaving open a real prospect of the power of suggestion affecting what the complainant is saying.
14. A later conversation this same day resulted in disclosure of the alleged licking, summarised above. The evidence here is inconclusive at best; ER does not definitively state how the child responds to the leading question of "Did he lick you", and query whether much weight could be attributed to it given its form. The evidence as to how the complainant responded is "I can't - I don't", which remained unfinished, but would appear to mean, she cannot or does not remember. True it is that a disclosure is made in the later interview, but the origins of this complaint are concerning in a way that detracts from the Crown case, because it appears the allegation of licking now contained in the indictment emerged not from the child, but from the mother.
15. One matter that is curious is that the allegations of inappropriate conduct, if you include the 2017 event, and then the May allegations, and for that matter the late 2018 allegations allegedly occur when the accused is residing with other people. There is no allegation of any inappropriate behaviour occurring at the cabin the father resided in for some 4 months, and which had only one bed, which he shared with the complainant most Friday nights of that period. I consider it at the minimum to be odd that this is so, and supports the view that these complaints are unreliable.

Count 3

1. The charge is that the accused attempted to place his penis into the complainant's mouth. The initial disclosure is that the accused made the complainant touch his willy; the next day the further disclosure is that the accused put his penis in the complainant's mouth, though that disclosure on ER account is nonverbal, and is made up by a nod of the complainant's head to a leading question of ER.
2. The first point is that whilst both those disclosures are consistent with the allegation, for the charged event may well involve a touching of the penis, and actual fellatio is a successful attempt, both disclosures are also not quite what might be expected. As to the touching, clearly more evidence is needed than simply that. As to the alleged allegation of actual fellatio, that the charge is the attempt reflects later evidence consistent with that, that is, inconsistent with fellatio, and inconsistent with this second mention of it by the complainant.
3. The circumstances of the further disclosure are that the complainant has said her father is a bad man, and SO has said what he did was wrong and her father was sick in the head. The evidence does not make clear who said what first. What is clear is this negativity or criticism of the accused occurs before the further disclosure. It is also clear SO knows of the previous night's initial disclosure.
4. In considering these facts a fact finder is asked to bring their own experiences and worldliness and common sense into consideration within legitimate bounds. Here, two infants are being bathed. There has been no physical connection with the accused for at least 4 and possibly 6 months. An incident occurs in the bath of one child aged 5 touching the penis of her baby brother, aged 2. In isolation, and free from the heightened sensitivities existing in this case, that is an event of no moment, innocuous, of understandable curiosity, and dealt with by parents the world over on a daily basis in an endless range of ways, helpful and constructive and educative and otherwise. In this instance the complainant was chastised, and she became upset. Her response is to defend herself by making reference to her father, to say he made her touch his willy. The difficulty in determining what reliance to place on such evidence is that it may be exactly as the Crown alleges, that the complainant is touching her brother's penis, because she had touched the accused's penis, so that she thought it was okay, or was normalised, or she was simply mimicking behaviour she had no real understanding of. Yet, as the accused argues, how reliable can this be? It occurs out of the blue, has not happened at all in the previous 4 to 6 months, and is in any event apparently only alleged to have occurred once with the accused which counters any argument of normalisation. There has to be in my view some prospect of the complainant simply responding in a way to deflect the criticism she has just received from ER. Further at this point, there has not actually been sufficient disclosure even if wholly accepted to make good the charge.
5. That evidence emerges from the events of the next day. That evidence is rightly challenged given the criticism of the accused that precedes it, and that there is no actual verbal expression of the complainant to the effect of an attempt at fellatio on ER account, just an ultimate nod of agreement as to the involvement of the penis in answering a leading question. SO version has the complainant using the word penis, but in my view there must be some concern as to accepting that given ER conflicting version. Further, this evidence only supports the charge on the basis that for there to be fellatio there must also be an attempt. I consider that argument weak and unpersuasive, for what it really highlights in the variability of the complainant's evidence, not its reliability.
6. In the interview of 21 March 2019, the complainant states the accused makes me suck his Willy, without any prompting, and not in answer to any question. It has all the appearance of the complainant having been spoken to in a way to ensure that she says just that to the police. In saying that, the finding is not made that there has been some kind of conspiracy by ER and SO to achieve such an end. The accused expressly eschewed such a submission. There may be some suspicion that the motivations of ER contained an element of bitterness about the break up of her relationship and the apparent seemingly immediate new relationship of the accused with JS. That said her concerns have not been shown to be other than in the best interests of the complainant as she sees it. The complexity arises if her response has been in some ways coloured by misconception and predisposition.
7. I have come to the conclusion that this interview overall is not sufficiently reliable to make out this count. I have given some indications for this conclusion when considering the interview above. The reasons for this conclusion include: 165.1. The evidence itself is variable. From it did not happen, to it did happen, to "I don't know". See Q52 where the complainant says "he didn't touch me"; and restating tickling when asked about the willy allegation. 165.2. The manner of extracting the evidence. It began well enough, then becomes leading, then becomes almost an instruction. 165.3. The technique of reaffirming in the interviewer's words what the interviewer considers has been said before, which I consider capable of affecting the answers that follow. 165.4. The number of times the complainant answered "I don't know", or "I don't remember" to matters that are central to the complaint being made. This includes what the accused said to her at the time he allegedly tried to make her suck his willy, and was the answer to the question "what did he [the accused] do?". 165.5. When asked what sucking meant the complainant said she did not know. Whilst the charge does not involve sucking, taken with the other answers, this is concerning.
8. I accept the submission of the Crown that the suggestion being made by the accused that there was no opportunity for the offending has not been made out and further the accused has recognised this. That said allowance should be made at least to some extent and by no means to the point of being an impossibility that at the time the father was at his mother's place he was recovering from an operation and was somewhat immobilised. Further, on several occasions RE was able to say where the accused slept suggesting she was present and on another occasion that the complainant slept with RE. Obviously this does not rule out an opportunity for the offending to have occurred but it is evidence that certainly on at least one occasion makes it less likely that any offending occurred at that time thus reducing what were already a limited number of opportunities.
9. I have also taken into account that it was the father that suggested the mother take the complainant to the doctor. That this did not happen is beside the point; it shows a concern by the father to investigate the matter, consistent with genuine concern, as opposed to some attempt to downplay and ignore the matter. ER agreed the accused encouraged her to seek medical advice.
10. Ultimately the Crown submission became in effect that considerations of contamination and inconsistency were white noise, simply distractions, and what should be focused on is the evidence of the complainant herself in two interviews that she gave on 4 July 2018 and 21 March 2019. There is some merit in that approach. The obvious difficulty with it however is that the chronology of events is the alleged offending followed by the alleged risk of contamination, and then the interviews, so it is, on the argument of the accused, impossible to disentangle the evidence of the complainant through her interviews from the asserted contamination. By contamination I refer to the influence of subsequent exchanges with other people and events; it is not limited to deliberate attempts to influence, or as was referred to in this trial by the Crown, the conspiracy asserted by the accused, which the accused does not adopt.

Conclusion

1. My ultimate conclusion in respect of each charge, guided by the directions set out above, and for the reasons outlined above, and having considered each charge separately, is that the Crown has not satisfied me beyond reasonable doubt of each of the elements of each charge, or put simply, that the alleged offending conduct occurred. Those conclusions are based on the above analysis from which I conclude the evidence of the complainant's two interviews and the complaint evidence is unreliable.
2. I recognise that the first interview contains clear complaint of a persuasive kind by the complaint in demonstrating how she was in her words "tickled" and licked. Her demonstration was the highpoint of the Crown case. Yet the countervailing factors result in the conclusion I have reached.
3. At the risk of repetition, and without being exhaustive nor intending to detract from the above analysis and conclusions, factors relevant to these conclusions are: 171.1. The possible confusion with the 2017 "cream" incident; 171.2. That there was no concerns or complaints about the relatively lengthy period of the complainant staying overnight most Fridays in the accused's bed at his cabin, in the period immediately preceding the alleged offending, which is argued to have occurred at East Ballina; 171.3. The pre-2017 threats of ER to hold the complainant away from the accused; 171.4. ER stance that the complainant could not be with the accused if he was with JS and or her children; 171.5. That ER informed the police of the late 2018 alleged disclosure only on the occasion of being asked her position in respect of the upcoming final AVO hearing; 171.6. Neither ER, SO or RE were impressive witnesses; 171.7. The significant number of leading questions asked of the complainant by ER and also by DSC Kirby, particularly in the second interview on 21 March 2019, as identified throughout the judgment. Further in this regard the style of the questions in that interview was to repeatedly positively reinforce what the interviewer believes the complainant intends to say, a form of strong leading question based on an earlier answer. In my view that weakens this evidence, for it gives the impression of the complainant simply agreeing with what is being said, rather than herself making the complaint. 171.8. The variable nature and quality of the complaints as has been detailed above. The range of variation is from nothing in fact being disclosed; eg Q53 second interview, to being quite specific, to not remembering; 171.9. The possibility that the complainant is saying what she has heard others say, in particular, ER and SO, with a particular example being the trip to the first interview, and the fact of the complainant volunteering her complaint without being prompted in the interviews; 171.10. The significant number of answers by the complainant of "I don't know", to some very significant questions; 171.11. The answers of the complainant to the effect that some of the alleged conduct did not happen; 171.12. The evidence that suggests in connection with both the tickling and licking allegations there was at the time possibly some assistance with toileting being provided; 171.13. ER concession that what she heard in late 2018 as to what the complainant was saying was put in her mouth could have meant anything; 171.14. There is a disparity in the evidence of ER and the complainant as to the circumstances of when she made a complaint to ER;
4. I do not intend any criticism whatsoever of the complainant in reaching this conclusion. The complainant presented as a likeable, lively and energetic young person. Regardless of the outcome of this case, she has suffered and may well continue to suffer, by simply having endured this process. I make this remark simply to make clear that there is no element of fault or wrongdoing on her behalf.
5. This conclusion has been reached based on the Crown case. I would also note that given my favourable findings as to the accused's evidence, and being mindful of the de Silva direction, I would conclude that the version of the accused might be true, resulting in the necessary doubt existing.

VERDICTS Count 1 Not Guilty Count 2 Not Guilty Count 3 Not Guilty 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: 13 September 2021