R v JDS

Counts 1 and 2 1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales; 2. Had sexual intercourse with DE; 3. A person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age; 4. Being a person under the authority of JDS.

Count 3 1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales; 2. Incited DSE; 3. A person then under the age of 16 years, namely between 5 and 7 years of age; 4. Who was under the authority of JDS; 5. To commit an act of indecency towards JDS.

Count 4 1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales; 2. Assaulted DSE; 3. And at the time of the assault, committed an act of indecency on DSE; 4. A person then under the age of 16 years, namely between 5 and 7 years of age; 5. Being a person under the authority of JDS.

Count 5 1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales; 2. Had sexual intercourse with DSE; 3. A child then under the age of 10 years, namely between 5 and 7 years of age.

Count 6 and Count 7 1. Between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales; 2. Assaulted JE; 3. And at the time of the assault, committed an act of indecency on JE; 4. A person then under the age of 16 years, namely between 2 and 5 years of age; 5. Being a person under the authority of JDS.

1. The Crown bears the onus of proving each charge beyond reasonable doubt. That involves proving each of the elements listed above, beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of each of the charges beyond reasonable doubt. There is no onus whatsoever on the accused. The accused is presumed to be innocent unless and until the Crown proves each of the elements of all or any of the offences beyond reasonable doubt, so as to establish the guilt of the accused on any or all of the counts.
2. I am mindful that speculation cannot enter into my considerations, and inferences may be drawn from established facts only if such an inference is a rational inference.

Evidence of DSE

1. The Crown called DSE who was born in July 1984. He gave evidence that he was between four and six years old when his mother first met the accused. At that time, the family were living in [M]. In about 1989, the family moved to a home in [A] and he attended primary school. He had two brothers, DE and JE. Plans of the townhouse at [A] became Exhibits A2 and A3.
2. When asked about his relationship with the accused, DSE answered "it was terrible. I was scared, frightened."
3. DSE gave evidence of the accused physically assaulting him as follows: "Q. Could you tell his Honour what happened? A. Well, one day, on the certain day, he was feeding [AS] a can of food, baby food, and he walked out of the room and I was licking the lid, and he stuffed the lid in my mouth and pulled it out, and I've got scarring on either side of my mouth. I didn't go to the doctors. It just self-healed. And, he just said, "You little bastard" ..(not transcribable)... Another time I was in the shed. I can't remember what I did wrong, but he picked me up by the scruff of the neck and threw me headfirst into the blue gravel. Q. Just going back to the can in the mouth, how old were you at that time? A. I would've been about five. Q. When he threw you on the blue gravel, do you have a memory of your age when that happened? A. In between five and six."
4. He was then asked whether there were any other incidents that occurred. He gave the following evidence: "A. Yeah, he wanted to play - called me into his and mum's room one day and wanted to play a game of doctors and nurses, and he was laying on his stomach, and he asked me to massage his bum. Q. Where did that happen? A. In [A]. Q. Was it inside the house or outside of the house? A. Inside the house in his and mum's room. Q. Do you have a memory of where your mum was? A. No. She would've been out doing errands or something. I'm not sure. Q. Did your mum work when your family was living at [A]? A. Not that I'm aware of, no. Q. Did [JDS] have any clothes on? A. No, not at the time. Q. What happened when he asked you to massage his bum? A. I didn't think anything of it, so I just done what he said. If not, I would've copped a flogging. Q. Sorry, I missed that last bit. A. If not, I would've copped a flogging. Q. Why do you say that? A. Because he always used to threaten me and beat me up all the time. Q. When you said you did what he asked you, that is massaged his bum, what did you actually do? Could you tell the judge? A. No, I didn't - I haven't really talked about it. Can you repeat the question? I forgot. Q. Okay, that's fine. You said that he laid down on the bed; is that right? A. Yeah. Q. And, that he didn't have clothes on; is that right? A. Yeah, but then later on he didn't have any clothes on. Q. How was he laying on the bed? Was he on the side, his back, his front? A. On his stomach on the right-hand side of the bed. Q. What did he say to you? A. "Here, massage this", and I didn't think anything of it because I was scared and intimated, so I just did it. Q. Can you tell his Honour, the judge, what you actually did? A. Jumped onto the bed and with both my hands, massaged his bum. Q. At that time, did he have any clothes on his bum? A. No. Q. How long did you massage his bum for? A. It would've been about ten to 15 minutes. … Q. How did that end, do you recall? A. I could hear mum pull up and open up the gate, and he said, "Don't tell anyone, otherwise I'll flog you, you little shit"."
5. The Crown identified this as evidence of what the Crown relies on in relation to Count 3.
6. DSE then gave evidence of an event that occurred two or three days later. He gave the following evidence: "Q. Can you tell the judge what happened on this occasion? A. He called me into the room, said again we were going to play a game, doctors and nurses. And, he pointed to his penis and asked me to pull his penis and he showed me it. Q. Just pause there. Sorry to stop you there. Firstly, what room was this? A. In mum and [JDS]'s room, the first room on the left-hand side when you enter the house. Q. Did [JDS] have any clothes on? A. No. Q. Can you just tell his Honour again what [JDS] said to you? A. He pointed towards his penis and asked me to pull his penis. At the time, I didn't think anything of it. I was just scared, frightened."
7. The Crown submitted that was the evidence it relies on in relation to Count 4.
8. DSE was then asked: "Q. What did you do? A. I pulled his penis for about ten to 15 minutes, and then he - within that timeframe, he stuck his fingers in my bum."
9. The Crown relied on this evidence in relation to Count 5.
10. DSE then gave the following evidence: "Q. Were you still pulling his penis when he put his finger in your bum? A. Yes. Q. How long did that incident occur, that is of you pulling his penis and him putting-- A. About ten to 15 minutes. Q. Did that include his putting his finger in your bum, that period? A. Yes. Q. How did that incident end, if you can recall? A. I heard mum pull up at the gate again, so that's how it ended, and he just said, "Shut up, don't say anything. We were playing a little game". Q. You've told his Honour about the incident of you massaging his bum, and what you just have said then about pulling his penis and him putting his finger in your bum. Were they the only times that things of that sexual nature occurred between you and [JDS]? A. That was the first time of the pulling the penis and the massage of the bum, but it went on for weeks, months, whenever no one was home until-- Q. Yeah, sorry. A. I was going to say until I went to live with my uncles."
11. DSE gave evidence that he did not tell his mother about what happened to him until about a year ago. When asked why he said: "A. Because I was embarrassed, ashamed, felt like it was my fault, and I just didn't want to face the fact that I was abused when I was a kid. Q. An incident occurred with the skipping rope. Do you recall that? A. I don't know what I did wrong, but yeah, he hit me with a skipping rope a number of times in the backyard. Q. Yeah, sorry? A. The backyard. Q. In the backyard, okay. Was there anyone else there at the time? A. No, not that I'm aware of. Q. How many times did he hit you with the skipping rope? A. To tell you the truth, I don't know. Q. Do you recall that that lead to [JDS] being charged with hitting you with that skipping rope? A. I believe so, yes. Q. How old were you at that time, do you recall? A. Would've been the ages of four and six."
12. DSE then identified photographs taken by police of bruising on his body following that incident. They were admitted over objection as Exhibit A4. The photos were relevant to the physical abuse meted out to the complainant, which was allowed as context evidence in a pre-trial ruling by Judge Harris. The objection was to relevance and the prejudicial effect of the evidence pursuant to s 137 of the Evidence Act 1995 (NSW). As there was no risk of misuse of the evidence, this being a Judge alone trial, the photographs were admitted.
13. DSE then gave evidence of an incident when the accused used a garden hose in the middle of winter to hose off his younger brother JE, who had defecated in his pants. He saw this occur on six or seven occasions when JE was aged about three or four years old.
14. DSE gave evidence that he made a statement to police on 21 December 2018. He had not spoken to either of his brothers DE or JE before making that statement. Nor did he speak to them before making a further one page statement on 12 November 2018.
15. In cross-examination, DSE confirmed that his sister AS was born in January 1991.
16. DSE was asked about the first time he disclosed the sexual acts that he alleged the accused had done to him. He first told a psychologist, Meg Perkins, that he used to massage the accused's bum, that he was too embarrassed and ashamed to admit that the accused would get him to "pull" the accused's penis and that the accused would stick his fingers in his bum. Ms Perkins had written a letter on his behalf and he had then spoken to Detective Edmonds on 15 November 2018.
17. It was put to DSE that before he spoke to Detective Edmonds on 15 November 2018, he had spoken to his mother. He gave the following evidence: "Q. Your mother told you that things had happened to your brother [DE], and with your brother [JE], and with your brother [PS] as well? A. No, I wasn't disclosed by that. I got told in a letter through Meg, that mum sent to Meg, that [JE] and [PS] had been abused. But I was unaware that [JE] and [DE] was abused, or if they were. Q. Do you accept that you told the detective on 15 November 2018 that similar things happened to my brothers, [DE], [JE] and [PS]? A. I'm not sure on that. I can't remember what was said. Q. How did you become aware of allegations made by [DE], [JE] and [PS]? A. I had no idea with [JE] and [DE] about their allegations because we hardly ever talk. [JE] I talk to every couple of days but we don't talk about past stuff. I seen a letter that mum had sent to Meg saying that [PS] had been tampered with in his bottom. That's how I found out about that, I never found out through my mum. Q. So this letter you say your mother wrote a letter to your psychologist. Is that correct? A. No, it was a letter from the - I went to two doctors in Sydney. It wasn't letter from my mum, it was a letter to my mum from what do they call them? Paediatricians. Q. Have you seen yourself this letter from a paediatrician? A. Yeah, it was Meg showed it to me a number of years ago. Q. So the only person that showed you this letter was Meg Perkins? A. That's correct. Q. Have you ever seen this letter as a letter that was given to you by your mother has your mother ever given you this letter? A. No, and she hasn't spoken about it. Q. So before you went to see Detective Edmonds, you said you had not spoken to your mother about the allegations of sexual acts? A. No. Q. Correct? A. Yeah, correct. Never spoken about it to anyone, too embarrassed. Ashamed. Q. When Meg prepared this letter on 12 November 2018, you had not spoken to your mum about sexual allegations? A. No. I've only just told mum within the last 12 months or so. Q. If you look at the document number 7 which is the statement that you signed on 12 November 2018? A. Yeah. Q. You said the statement was read to you before you signed it, correct? A. Yeah, I believe so. Q. I will read for you, this is the fourth paragraph from the bottom, and if you don't understand I can repeat. "My mother has told me that my elder brother [DE] disclosed sexual abuse by [JDS] to treating psychologist." Can you read this sentence? A. Yeah. Q. My question to you is, did you tell that to whoever was writing this statement? A. No. The [DE] got I don't know, seen a psychologist or something, or psychiatrist in gaol. That's, yeah, how I found out about that. Q. I suggest to you that on the day this statement was signed, you had already spoken to your mother, and your mother had told you that [DE] had spoken to a psychologist in gaol about being abused. Do you agree or disagree? A. I agree, but I wasn't like, told what was said, and how he was abused. Q. Do you agree that your mother, before you went to police, had told you that your brother was accusing [JDS] of sexual misconduct? A. No, I I was the one that brought it all up, and then my brothers heard that I went and made a statement, so they went and made their own statements or their own report. Q. You say you're the first one within the three who started talking? A. Yes. Q. Is that what you said? A. Yes. Q. But are you saying the first time you spoke about it is in November 2018? A. Yeah. Q. But at the time that you were discussing those sexual acts by [JDS], you had already been made aware that your brother had disclosed sexual acts on him. Do you accept that? A. Yeah, I do, but I'm not sure what sexual acts. I was just told by mouth that he'd been assessed by somebody in gaol, and that's where that went from there. Q. Who told you that, that he had been assessed in gaol? A. My mother, but she didn't say what had happened, what was the outcome. What injuries, or whatever happened. She didn't tell me anything, she just said that he's seen a psychologist or a psychiatrist in gaol. That was about it. And me, I was the only that started it all, that went to the police first and wanted some justice. So."
18. The document in tab seven of the defence bundle, being a letter prepared by the complainant's psychologist and signed by DSE on 12 November 2018, became Exhibit 1.7.
19. DSE gave evidence that his mother sent other documents but that all the documents went through Meg Perkins to the police. It included a letter from Dr Andrew McDonald, a letter from Department of Community Services ("DOCS") dated 29 July 1999 and a handwritten document from his mother (tabs 8, 9 and 10 in the defence bundle). A further letter from Dr McDonald was contained in tab 11. These documents became Exhibits 1.8 through to 1.11.
20. DSE gave evidence that in 2018 he was smoking marijuana and drinking alcohol on a daily basis. He gave evidence that "it was a way to help coping with the demons that go on in my head from all this stuff" (sic).
21. It was put to DSE that he had discussed the allegations made by his brother DE, which he denied. He gave the following evidence: "Q. I suggest to you that you became aware of the type of allegations that [DE] had made against [JDS] when you gave a statement in November 2018. A. I knew that he spoke to a psychologist or a psychiatrist, but I'm not sure what was - in, like, detail. So I wasn't sure what abuse went on with any of my brothers, we never spoke about it. Q. I suggest to you that your mother told you that your brother disclosed similar sexual abuse from [JDS]. Do you agree on the word similar? A. I'm not 100% sure. Q. What I put to you is that you have had conversation with your mother before going to police and during this conversation, your mother had told you that what you're saying [JDS] did to you is similar to what [DE] says [JDS] did to him. A. No. Q. Do you agree or disagree? A. I disagree. I only knew of the paperwork that was sent to Meg Perkins of what happened to [PS] when he was a baby."
22. DSE was then taken to paragraph 21 of the statement he made on 21 December 2018, which read "mum has told me that my brother [DE] disclosed similar sexual abuse". He accepted that that is what he told the Detective and he was asked: "Q. I suggest to you that in December 2018 you were made aware, you knew what [DE] had said about [JDS], that it was similar to what you were saying? A. No, it was similar, but mum never told me exactly what went on. She just said it was a similar case. … Q. What I suggest to you is that by that time you had told your mother what you said [JDS] had done to you? A. Yeah. Q. So you've already had a conversation with your mother about what you said [JDS] did to you? A. Yeah. Q. During that conversation your mother told you that [DE] had disclosed the same sort of sexual abuse. Correct? A. Yeah, but she didn't say what specifically type of sexual abuse, she just said it was similar. And I haven't seen any documents or anything at all, been told anything on what happened with [DE]."
23. DSE then gave the following evidence: "Q. Do you agree that when you met with Detective Edmonds, you said to Detective Edmonds similar things happened to my brothers, [DE], [JE] and [PS]. Do you agree or you don't remember? A. I agree. Q. How did you come to know the allegations made by [JE], [DE] and [PS]? A. Well, I didn't know what allegations they had made, but only my own. It was never spoken about, we don't talk about that stuff. [DE], I haven't had any contact with for about six years, seven years, and [JE], we keep regular contact on the phone, but we don't talk about anything that were past. We just talk about general daily stuff, like going fishing and stuff. Q. How did you come to say to Detective Edmonds that what [JE], [PS] and [DE] were saying was similar to what you were saying? A. I wasn't sure, made aware of that. I was only made aware of what had happened to [PS]. Q. What is that that happened to [PS]? A. With the warts that he had on his bum, that were burned off. Q. Who told you about warts? A. It was in the letter that was given to Meg from my mum, from the paediatrician from Dr McDonald. Q. You became aware of that when you were an adult. Correct? A. Yes."
24. DSE gave evidence that he went to live with his uncle PE first and then his uncle RE. He was not sure if he lived with them after the skipping rope incident. He gave evidence that the physical abuse from the accused occurred before his siblings PS and AS were born. The physical abuse started in [M] and continued when they lived in [A], however, the sexual abuse started in [A].
25. DSE was questioned about the circumstances in which he was hit with a skipping rope by the accused. As a result of that incident, DOCS were notified. He gave the following evidence: "Q. Do you remember speaking to anyone working at DOCS? A. Yeah. They asked me had I been abused sexually and I said no cause I was still scared of what would happen if I said yes. And they just - basically, their therapy was draw a picture of the mean, nasty man, screw it up and throw it in the bin. That was their way of therapeutic practice. But, no, I didn't say anything about the abuse because I was too scared of what would happen when I got home. Q. Are you saying that you did not disclose any sexual abuse to DOCS because A. That's right. Q. Yes. So is that your evidence, that when you were assaulted with the skipping rope, you had already been sexually abused by [JDS]? A. Yeah, as far as I know."
26. In respect of Count 3, the first incidence of alleged sexual abuse, DSE gave the following evidence: "Q. Is it your evidence that the first incident that you describe as sexual is the massage of [JDS]'s bum? A. Yes. Q. Your evidence was that you're not sure whether your mother was there for this particular incident, correct? A. No, no one was home. It only ever happened when no one was in the house. Q. Is that your evidence that it happened in the bedroom of [JDS] and your mother? A. Yes. Q. Are you sure there was no one else in the house at that time? A. Would have been only [AS] cause she was a little baby, or would've been [PS] cause he was a little baby. So it would've been either one in the house. Q. Are you guessing now or you have no recollection? A. No, I'm not guessing, I'm just not sure which child was in the house at the time, whether or not [AS] had been born or [PS]. But being so close together, cause they're only a couple years apart, one of them would've been home. Q. But you're not sure? A. No, but [AS] or [PS] would've been there because that's what I recall cause I used to try and hide underneath the cot to get away from him. Q. Are you saying it could be [AS] or it could be [PS] or it could be both of them or it could be no one? Is that what you're saying? A. It's one of the siblings, either [AS] or [PS]."
27. DSE was then referred to paragraph 8 of his statement dated 21 December 2018, where he told police that at the time of that alleged offence, "[AS] was in her bed".
28. It was put to DSE that the skipping rope incident occurred in December 1990, at a time when AS was not yet born.
29. The defence case was put to DSE as follows: "Q. I suggest the reason why you're getting confused is that this never happened, [JDS] asking you to massage his bottom when [AS] was there, or no one was there? A. Yeah, it did happen, and it's scarred me for life. Q. What I suggest sorry? A. I was even now, like it's I get flashbacks and memories of it, and it's yeah, horrific. Q. Of massaging [JDS]'s bottom? A. And the beatings, and also the masturbation of him, and him putting his fingers in my bum. Q. What I suggest to you is that at times [JDS] asked you and all the other children to massage his back, his lower back. Do you accept? A. No. Q. At times he asked even to walk on his back? A. No, not that I'm aware of, no. Q. That when you and the other kids massaged his back there was nothing sexual. You accept? A. No, I don't, cause it was sexual. It was he was on the bed naked when it happened. Then a few days later after that, it was when the sexual abuse started with the him showing me how to pull his penis, or play with his penis, and the fingers in the bum. Q. So when you say that you went to massage the backside of [JDS], it's your evidence, isn't it, that [JDS] was completely naked. Correct? A. Yes. Yes. Q. Do you accept that you didn't tell police that [JDS] was completely naked? A. I'm pretty sure I did. I thought I did. Q. You said his pants were off? A. Yeah, well, that's pretty much naked, isn't it? Q. Is that daytime? This is happening during daytime, right? A. During daytime, yes, correct. Q. You said that at that time there's another child in the bedroom? A. Yeah. Well, I think it was [AS], but it would have been [PS]. Q. And that [JDS] is completely naked in the house? A. Yes. Q. And he's calling you to come to him. Correct? A. Yes. To come in the room. Q. You're saying your two other brothers were gone, [DE] and [JE]? A. Yeah, they were out. Q. Where is your mother? A. I'm not sure. Doing errands. I'm not sure what she was up to, but she was out. Q. That's the first time ever, is it, that you say you saw [JDS] completely naked? A. No, because I seen him completely naked the first time when I had to massage his bum. Q. Well, I'm talking about the massage of the bum. That's why I'm saying that's the first time you ever see your stepfather naked; correct? A. Yes. Q. And, he's calling you. A. Not that day. That day was just massaging of the bum. About two or three days later, that's when it got really serious with the masturbating and the fingers in the bum. Q. It was your evidence, wasn't it, that when he called you to massage his bottom, he was completely naked; correct? A. Yes. Q. So, that's the first time you ever see him naked. A. When I massaged his bum, yeah. Q. You're saying that you massaged his bum, and then you were interrupted because you heard the gate; correct? A. Yeah, which was my mum getting home from wherever she had been for the day. Q. That's your recollection today of what happened. A. Yes."
30. DSE was then referred to his statement and asked as follows: "Q. Can you look at your statement? Do you agree that paragraph 8 or 9, you never said your mother was coming and that she interrupted the massage of the bottom? So, if you look at the bottom of paragraph 9, you said, "I massaged his backside with both hands, and that was it for that day. Mum was out. I don't know where she was". A. Yeah, that's right. Q. So, are you getting it confused, or is it by convenience that you are repeating the same story so that your story is straight? A. No, I'm telling the truth, and telling my own story. Why would I try and say someone else's story? I'm here to tell what's happened to me when I was a kid. It's embarrassing and I'm ashamed of it, but I've got to get it out because I've been dealing with this for 30 odd years, and-- Q. But, sir, if that's the first time that you ever see your stepfather naked, and he's forcing you to touch his bottom, which is - so, you were, what, four years old, six years old? A. In between four and six years old, yeah. Q. So, that must have been something that you would remember as something traumatising; correct? A. Yeah, I remember a lot of the beatings and the abuse, sexual, physical and mental. Q. So, if that's the first time ever, I suggest to you today that you should have a clear recollection of who was in the bedroom at the time. Do you agree with that? A. I'd agree with that, but as I said, it would've been [PS] or [AS] because they were only toddlers at the time. Q. Yes, but you didn't say neither [AS], neither [PS] to Mr Crown when he asked you details about this incident; correct? A. No, I said [AS] was in the rocker because I thought [AS] wasn't born then, but-- Q. No, you didn't say it, sir. You didn't say [AS]. You did it because I showed you your statement. A. I've had the same statement with me that got sent out. Q. Do you also agree that when you tried to remember this first instance where you were allegedly sexually abused by [JDS], you said that what interrupted the massage of the bottom was that your mother came and you heard the gate; correct? A. Yeah. Anytime we'd hear the gate ..(not transcribable).. - pardon? Q. But, that's not what you told police. A. Well, it is what happened. Q. So, is that your recollection today now? You do remember clearly that when you were massaging the bottom of [JDS] when your brother or sister was in the room and [JDS] was naked, you had to stop the massage because you heard the gate. Is that your evidence? A. Yeah, I heard the gate. It could've been anyone that was getting home, Mum or [DE]. Q. So, did [JDS] say anything to you? A. Yeah, he said, "It's our little secret. Don't say anything, otherwise I'll flog you"."
31. DSE then gave the following evidence: "Q. So, he said that before you give the massage or after you give the massage? A. After. He said - first, he said we're going to play a game, doctors and nurses, that was at, like, the start before anything occurred. And then after that he said, "Don't - it's our little secret, don't say nothing or I'll flog you". Q. Do you accept that what you told police is that first, [JDS] called you in and told you you're going to play a game and not to say anything or you would have a flogging A. He didn't say - he didn't Q. --then you gave him a massage - sorry? A. He didn't say anything about a flogging until after it had finished. Q. I suggest to you that that's not what you told police. Can you look at paragraph 8 and tell me whether you agree or disagree? A. Yeah. … Q. Sir, what I'm saying is you did not tell police that after the massage, when you heard the gate, that [JDS] told you, "It's our secret, don't tell anyone or I'll give you a flogging". Do you agree? A. Yes."
32. DSE was then cross-examined on what occurred two or three days later, after the first incident of alleged sexual abuse. He gave the following evidence: "Q. Your evidence to Mr Crown earlier was that it was only you, [JDS] and [AS] for the second incident two or three days later. Do you remember? A. Yes. Q. Your recollection today is that [AS] was already born, correct? A. I'm not sure if it was [AS] or [PS] at the time. Q. How can you confuse your baby brother and your baby sister when one is older than the other and one is a boy, one is a girl? A. Cause I don't - like, even still today, I don't even know how old they are. Q. But you told Mr Crown about four hours ago that it was [AS]. So is that your memory that [AS] was there? A. Yes. Q. So [AS] was already born, correct? A. I assume so, yes. I'm not sure if it was [AS] or [PS] in the room Q. Do you agree with me that if [AS] A. --because of the dates. Q. Sorry? A. I said because of the dates. Q. If [AS] was born for the second incident, do I take it that she was born for the massage on the bottom? A. No, not that I'm aware. I'm not sure whether it was [PS] or [AS] because the skipping rope incident, whenever that happened in whatever year, the abuse started before then with the massage of the bum. So I'm not sure on the date. Q. Do you A. And there's ..(not transcribable).. sorry. Q. Do you agree at paragraph 10, you did not tell police that [AS] was present ..(not transcribable).. the incident where you said you masturbated [JDS]'s penis? A. Yeah, he pointed to his penis and told me to play with it and that was that. And throughout that time, he'd put his fingers in my bum for about ten, 15 minutes. And then I heard the gate, it was either [DE] or my mum. At that time, it was my mum. Q. You said to police that your mother was out and your brothers were out as well, correct? A. Yeah, [DE] would've been out playing in the street, playing handball or something with his friends. [JE] would've been with mum cause he was only small. … Q. [JDS] called you and asked you to play doctor and nurses? A. Yes, again, for the second time. Q. And your evidence was that [JDS] had no clothes on, correct? A. No, not at that time, no, he was completely naked. Q. Do you agree you did not say that to police either? A. I did say that to police, pretty sure I did. Q. Do you accept that it is not recorded in your statement at paragraph 10? You said just that he was in his bedroom, he called you in. A. Yeah. Q. I suggest to you you didn't say that to police, you just made it up today because A. No. Q. it's consistent the other evidence you said about the massage? A. I definitely didn't make any of this up, this is my life story, and this is what I've had to battle every day of me life. Q. That's the first time ever, correct, that you're saying that you had to touch the penis of your step father. So do you accept that this is a very important memory? A. It's more than important, it scars me every day, to, like, even now. But I did report it to the police when I made this document in 2021, December 2018."
33. DSE gave the following evidence of the incident: "Q. You said that [JDS] put a finger into your bottom? A. Yes. Q. How many fingers you said he put in your bottom? A. I'm not sure at the time. Q. You said this went on for ten to 15 minutes. Correct? A. Yes, that was the first time it happened. And it just happened on random other times when no one else was around. Q. But you said [AS] was around? A. Adults, I mean. That witness stuff. Q. The ten to 15 minutes, is that also a coincidence that you said the massage lasted ten to 15 minutes? A. It's just a roughly, rough time estimated, that I feel that was in there. Q. I suggest to you, sir, that this never happened? A. It did. I swear on my life."
34. The defence case was put as follows: "Q. I suggest to you that you have made up this allegation to support your brothers' allegation? A. No, that's not true at all. Q. And you have been feeding information by your brothers and your mother? A. No. I only have contact with my brother [JE] and my mum. I don't have contact with [DE], so I don't see how the similarities in the stories when I hadn't been told what had happened to them. I'd only just been told that they had made statements. I don't know what was in what's the word, enclosed in the statement. What was said, I don't know. But I'm not making any of this up, this is my life, this is what I've had to deal with constantly, it's been a battle, day in, day out."
35. It was put to DSE that from 1992 he could have told his teacher or any of his uncles what had happened to him. He gave the following evidence: "A. No, because I didn't feel happy inside. It was terrible, and I still didn't want to say anything because I was in fear. Q. You were in fear of what? A. Of [JDS] in general. He knew where we lived. He knew what school I went to. Yeah, so I was just constantly in fear. It was only just within the last three or four years that I built up the courage to face the demons that've been inside with what's going on and what has gone on. I suffered from night trauma, daily flashbacks, heavily medicated. Mum had DSP because of this. Q. Sorry, I want to put a proposition to you, that when your mother and [JDS] separated, your mother started making allegations about [JDS] doing things to your sister [AS] and to [PS]; correct? A. I'm not sure. I've only seen documentation on [PS], not [AS]. Q. Some allegations were made well after [JDS] and your mother separated. Are you aware of that? A. No."
36. The statement of DSE dated 21 December 2018 was marked for identification as MFI#1. A further statement dated 24 February 2020 was marked for identification as MFI#2. DSE was then asked: "Q. I suggest to you that when you're talking about nightmare and that one you've been going through is, I suggest, a very difficult childhood where you were confronted with domestic violence and some physical violence against you by [JDS]. Do you agree or disagree? A. No, it was mental, physical and sexual. Q. I suggest to you there was never any sexual violence against you or any of your brothers. A. I don't know about my brothers but to me, yes, there was. [PS] I'm made aware of, but my other brothers, I'm not 100% sure because we don't speak about it. Q. What you've witnessed is [JDS] being violent towards your mother and that at times, because you were witness, you were involved in some of the brawls between your mother and [JDS]. A. Yeah, I would stand between them so my mum didn't cop a flogging, it would be me. Q. [JDS] was actually tough with you and your brothers, physically tough? A. I assume so. Q. He would sometimes grab you by the ear. Do you remember that? A. By the ear or the scruff - by the - who, sorry? Q. Do you remember that, grabbing you by the ear? A. Yeah, either there or by the scruff of the throat. Q. And there was some slap happening sometimes? A. Yeah, slap, openhand or fist closed, skipping rope or jump cord, whichever he could get his hands on or a thin Q. I suggest to you - sorry? A. Or a thin bit of stick ..(not transcribable).. Q. I suggest to you there was no fist. A. There was. Why are you doubting me for? Q. Sir, I'm asking the question. Did you get any bruise from [JDS] hitting you with his fist? A. Yes, but it was always below the shirt or from the knees upwards so you could hide the bruises. Q. So he would hit you with his fist only on the parts where it would not show, is that what you're saying? A. Yes. From time to time I did cop a clip around the ears, I was slapped in the head. But that didn't bruise, it'd only red up, like, just go red. Q. [JDS] used to slap you and smack you, and he did beat you with a skipping rope after you escaped the house through the window. That's the extent of the physical violence against you personally? A. No. Q. I suggest to you that the incident you have described with the tin being pushed into your mouth never happened. A. It did happen, I've still got the scars from it. Q. But did you do that to yourself by falling or by being pushed by your brother? A. No, no, not at all. Happened by [JDS] cause I was licking the lid of the tin of baby food and he walked in and he seen me. And he goes, "What are you doing, you little shit", and he forced it in my mouth and pulled it out."
37. In respect of the incident where DSE alleged the accused pushed a lid of a tin can into his mouth, it was suggested to him that that incident never occurred. He said it did happen. The following proposition was then put to DSE: "Q. Was the reason why you went to police and lodged a complaint because someone had put in your head that you could get some money out of a claim against [JDS]? A. No. Money doesn't make anything different. I've still got to fight with the demons in my head and everything that has happened on a regular basis."
38. He was then asked about a letter prepared by Meg Perkins (Exhibit 1.7). He gave the following evidence: "Q. I'm saying to you the reason why you prepared this statement is that you wanted to seek some advice to see whether [JDS] could be charged. A. Well, that's why I made a statement, yeah, so he can get punished for the things that he done wrong to me and my brothers, or mainly to me. I'm here - I'm, like, representing myself, and just want some justice out of it because you can't treat kids like that. Q. Sir, the reason why you have your psychologist preparing a letter like that, and especially the last paragraph is that you want some sort of compensation or reparation for what you alleged happened to you; correct? A. No, I don't want any compensations or anything. I just want the justice system to do right and find him guilty as he is. Compensation, if that happens, that happens, but my main focus and goal is that he be held accountable for what he has done to myself."
39. DSE was asked about his evidence that the sexual abuse occurred on a weekly basis. He agreed he told police that it occurred when his mother or the other kids were not around. It was put to him that this was inconsistent with his evidence that AS was around, or maybe PS. He gave the following evidence: "A. There was other kids around, it was just [PS] or [AS], but mum and my older brother and my younger brother [JE], they weren't present. But, there was a child present. Whether or not I got it mixed up or not, which obviously I have. But I was trying to go around the timeframes that I - trying to work out from when I was four to six years old, like, it's hard to do."
40. DSE was asked about the document written by his mother which became Exhibit 1.12. It was put to him that his mother had given him the document to give to police when he met with Detective Edmonds in November 2018. DSE could not remember that. He was asked whether he had told his uncle RE about being abused by the accused and said "no". His statement to police dated 14 January 2021 was marked for identification as MFI#3. He was then asked: "Q. Just because you said those instances of masturbation and a finger in your anus happened on numerous occasions - that's what it is, correct? A. Pardon? Q. You said that the masturbation of [JDS] and the fact that he was putting a finger in your bottom, you said this happened on a weekly basis, correct? A. Yeah, it happened on a regular basis, whenever there was no adults or anything around, or my brothers. Q. And you said it was always the same, it was always you masturbate him and he puts his finger into your bottom? A. Yes, it was either massaging his bum or playing with his penis or he would be sticking his finger in my bum. Q. And he never ejaculated, correct? A. No. Well, at the time I didn't even know what ejaculation was so, no, not to my knowledge. Q. You've never seen anything that would now make you believe that he did ejaculate, correct? A. No."
41. In re-examination, DSE was asked about the cross-examination about his evidence of the skipping rope incident. He was asked: "Q. It was suggested to you, she suggested to you that you jumped the fence and [JDS] asked you what had happened, and you told him that you were going to go and burn the school down. Do you recall that being suggested to you? A. No, not at all. Cause I loved school, it was yeah, like, get away. Q. But what I'm just getting at firstly is, do you remember Ms Ellis saying that to you, putting that to you that that's what you said to [JDS]? A. I remember Ms Ellis saying that, but I didn't say that to [JDS], no. Q. I think you said in your evidence when she asked you that that you loved going to school? A. Yeah."
42. He confirmed in his police statement dated 21 December 2018 (MFI #1) that he had told police that he loved going to school.

Evidence of JE

1. JE gave evidence that he was born in May 1987. The accused came to live with his family when they were living at [A]. He described his relationship with the accused when he was living with the family as "very poor".
2. JE gave evidence that he was physically abused by the accused: "A. He used to bite my cheek. I'm left with a scar on my right cheek. He used - when I was a baby, he used to hose me off as a child when I used to dirty my nappy and stuff like that. He used to do it - … Q. Was it always the right cheek? A. Yes, because I'm left with a faint scar there and I can't grow hair there at all now. I can only grow hair in patches. Q. How many times did be bite you on the right cheek? A. Numerous times. … Q. You also said something about you, and I don't know if you used these words, but you pooed your pants. A. Yes, I did. I was doing that right up until the age of seven because I was scared for my life around any males until I went to live with my grandmother. Q. What did [JDS] do in relation to you pooing your pants? A. He would take me outside in the middle of a thunderstorm, whether it was sunny. It didn't matter what time, day or night, weather. He would hose me off like an animal. Q. Did you have your clothes on when he hosed you down? A. No, no. Q. Did anything else happen to you physically - I'm talking about the physical now, rather than the sexual - apart from the biting on the cheek and the hosing down? A. He used to hit us. He used to throw us around like we were ragdolls. Q. Just pause there. When you say, "He used to hit us", are you talking about just you, or did you see him do that-- A. No, all of us. All of us. He used to flog us all. Q. How would he hit you? A. Open hands, sometimes back hands."
3. JE gave the following evidence: "Q. In relation to what you referred to as the sexual abuse, can you recall firstly when that started? A. No, I can't. Q. Are you able to tell his Honour the sorts of things that happened; that is the type of sexual abuse that you referred to? A. He used to make us - he used to make me sit on his lap, and he used to rub my inner thigh. Sorry, I just - yeah. And, he used to make us - make me touch his privates. Q. When you say privates, what do you mean by that? A. His penis. Q. Was this just on one occasion or more than one? A. No, more than one. Q. Anything else? A. Not that I can recall, no. Q. Do you recall an incident when you were on a bed? A. Yes. Q. Firstly, if I can ask you, where did this happen? A. Elizabeth Way. Q. At Elizabeth Way? A. Yes. Q. Was that at [A]? A. Yes, it was. Q. Can you say how old you were? A. I honestly can't, no, because I was such - at a young age. … Q. Where were you? Were you on a bed? A. Mattress on the floor. Q. Where did that occur? A. Either in a loungeroom or a bedroom. Q. Who else was present? A. No one. Q. Well, it was you and who else? A. That was it. Just me and [JDS]. Q. What happened on that occasion? A. We were in the room. I can't exactly recall what I was doing. And he'd come in and wanted me to sit on his lap. So I ‑ and then yeah, he'd start rubbing my leg, like my inner leg and stuff like that. Q. Did anything else happen on that occasion? A. I'm not sure. Q. Did you say that this incident occurred on a mattress? A. Yes. Q. Can you recall what room? A. No, I can't. Q. When you say he rubbed you on the leg, whereabouts on your leg? A. Like the top ‑ top of your thigh, your inner thigh sort of part. In towards your groin sort of thing. Q. How long did he rub you near the groin? A. I can't remember. I can't remember. Q. Do you recall what clothes you had on, if anything? A. No. I literally cannot recall. Q. Can you recall the time of the year? A. No. It was… I know it would have been probably late 80s, probably 90s."
4. This is the evidence the Crown relies on in relation to Count 7.
5. The complainant was given leave to refresh his memory from a statement made on 10 March 2020. He was then asked: "Q. On this particular occasion what do you recall happening when you were on a bed? A. He he got one of my hands to start playing with him. Q. When you say start playing with him, what do you mean? A. Playing with his penis. Q. Did he have any clothes on? A. Yes. Q. When you're playing with his penis, was it on top of clothing, or how did that happen? A. On top and underneath. Q. When you were playing with his penis was it on skin or not? A. Sometimes it was skin, yes. Q. On this occasion, can you recall? A. No, I can't."
6. This is the evidence the Crown relies on in relation to Count 6.
7. JE gave evidence that the sexual abuse stopped when his mum separated from the accused. He then went to live with his grandmother. He was about three or four years of age. He was asked: "Q. When this was happening, the sexual abuse that you've told his Honour about, did you tell your mum what was going on? A. No. Because I was scared as a child that no one would believe me. Q. Since then when you became an adult, did you tell anyone like your mum or A. No. Q. - your two brothers? A. No, I haven't told anyone. I've just tried to keep it to myself. That was part of the reason why me and my wife had split up, because I never told her. I'm I'm a person that I can't talk about my problems."
8. In cross-examination, JE gave evidence that he did not remember the accused working when he lived in [A]. When he was aged two, he remained in the care of his mother but went to live with his grandmother when he was three, as his mother couldn't handle him.
9. When JE received a telephone call from a police officer in 2019, he was told that the police officer had received statements from his two brothers, DE and DSE. He agreed that he was asked whether the accused had touched him sexually. That was the first time he had ever told anyone about what the accused had done to him. He was not aware that DE had spoken to a psychologist a year before. JE gave evidence that he had reconnected with DSE in around 2019. DSE had not told JE that their mother had told him that DE had spoken about things the accused was doing to him.
10. JE gave evidence that he told his ex-wife that he had been sexually abused three months before she left him. That was in mid-2015. He denied that he had been pressured by his mum to go and talk to the police. He was then asked: "Q. Have you had a recent conference with Mr Crown on 21 September, which is about two, three weeks ago, you had a conference? A. Yes. Q. Have you said to Mr Crown, "Mum kept pressuring me to open up"? A. She wants me to open up, but that's all she's saying. She wants me to open up, so I don't keep it in anymore because I suffer from mental health issues and suicide. I've tried to kill myself multiple times to try and stop me from opening up to people about all of this. I've been on my death bed several times because of trying to forget and trying not to open up to people. Like, I've been with my new partner now on and off for three or four years now, and I'm still not opened up to her. Q. So, you haven't told your current partner about what you say [JDS] did to you? A. She's starting to find out things now. She has - she's known that something like this was going to come up over the last couple of years. But, I've tried to keep her out of it, but she wants to stay involved, but I keep putting a wall up to shut her out because that's all I know how to do. Q. My question to you was that your mum kept pressuring you to open up, and your answer was, part of your answer, "Yes, she did pressure me, so I don't keep it in anymore". What do you say is "it"? "I don't keep it"-- A. In. Q. "In anymore". What are you referring to, the "it"? A. Everything with [JDS], the sexual assault, the mental and physical abuse. My partner is too scared to sleep next to me at night because - sorry. Q. If you can just, sir, sorry, when I ask you a question, just listen to my question and just answer the question. A. Yes, she has pressured me to open up to people and to see a psychologist, but I keep shutting her down because as I told my mum, it doesn't matter how much you pressure me to see a psychologist, I said, "It's not going to stop with the memories, the flashbacks, the nightmares, all that sort of stuff". It's not going to stop. I said, "Yes, it's going to relief some pressure off my shoulders, but it's not going to get rid of the future pain that I've got live with". Q. So, what I suggest to you, sir, is that your mother has pressured you to speak to police about [JDS]. Do you agree or disagree? A. Yes."
11. JE agreed that what he had been traumatised by over the years was the violence that he had witnessed as a child, namely, physical violence that he had witnessed and been a victim of as a child. He also agreed that his mother hadn't been there for him when he was a child, that he had been placed in the care of DOCS and that as a child he was very difficult.
12. It was put to JE that the accused did not bite his cheek to the extent that it drew blood, to which he denied. He was then asked: "Q. I suggest to you that what [JDS] used to do to all of the kids is to bite all of you on the cheek in a playful manner. What he used to call sweet bites. Do you agree or disagree? A. I disagree. Q. How often do you say he would bite you on the cheek? A. I can't recall. Q. If you had the blood on the cheek obviously it would have - it would draw people's attention to your , wouldn't it? A. As far as I know, yes. But as I say, I was too young, so I I wouldn't know. Q. Has your mother told you that [JDS] bit you to the cheek to draw blood? A. Pardon? Q. The blood reference, is that something that your mother told you that she remembers [JDS] was doing? A. No, I remember. I remember him doing it, because it used to be excruciating pain."
13. JE was questioned about physical violence he was subjected to. It was put to him that it was not true what he had told police, namely, that he had been held against the wall by the throat and flogged with a strap. He said it was all true. He was asked about his evidence that the accused had grabbed his penis and made him touch the accused's genitals: "Q. That's the extent of what you said [JDS] did to you, is rub your groin area, and make you touch his penis. Is that what you said? A. Yes. Q. The thing that you remember after reading your statement was an occasion of… (not transcribable).. Correct? A. Yes. Q. You're not able to say where was the bed, correct? A. No, I can't recall. Q. You can't recall who was in the house at the time? A. No. Q. When you were giving evidence about a mattress, you cannot say where the mattress was? A. No. I've I've lived on mattresses my whole life. You know, around different places, it's hard to speculate where it where they where it was. Q. But that's your first memory of [JDS] A. Yeah. Q. touching you, right? A. Yes. On a mattress. Q. A very clear memory of your mind, correct? A. (No verbal reply) Q. And that's most traumatising ..(not transcribable).. you remember? A. Yes. Q. Is on the mattress that he rubbed your upper thighs where the groin is, between the ..(not transcribable).. groin area? A. Yes. Q. The most traumatising memory you have. Correct? A. No. I've had a everything, everything really. The sexual, the physical and emotional. Q. But of the sexual that you can remember today is being on a mattress and you said [JDS] was rubbing your groin area? A. Yes. Q. And then it's a bed where you said he started playing with his penis? A. Yes. Q. That's it. Nothing that you can recall? A. No."
14. JE was then asked: "Q. If he had ever done a blow job on you, you would remember that? A. Yes. Q. And he never did that? A. On me? He - he gave me oral. … Q. If something like that had happened to you, you would remember. You agree or disagree? A. Agreed. Q. If [JDS] had penetrated your anus, you'd remember that? A. Yes. Q. But you don't have any memory of this happening to you. Correct? A. I don't have any memory of it, no, but I get flashbacks."
15. The defence case was put to JE as follows: "Q. Sir, you told police that [JDS] used his mouth on your penis and that this happened on numerous occasions. Do you remember saying that to the police? A. I do remember saying that, yes. Q. I suggest to you that this is not true? A. It is true. It is true. Q. If this is true, how can it be that today the only thing you remember is [JDS] rubbing your thighs and making you playing with his penis? A. Because I go by the flashbacks that I have that I have on a regular basis. Q. This is quite a traumatising sort of act that you would remember your whole life. Do you agree or disagree? A. I agree. Q. Yet today, when asked if you could recall anything that happened with [JDS], you said no. Do you agree or disagree? A. Agree. Q. When you went to police did you have a lot of flashbacks at the time? A. Yes, I did. I spent the majority of the time in there crying. Q. So in the police station you had a lot of flashbacks? A. Yes. Q. How did you come to have those flashbacks, did you go to see a psychologist, or? A. No. I don't talk about my problems, I always keep them bottled up. My partner's trying been trying to pressure me to see a psychologist and to try and get and help for all of this. Because my partner now is too scared to sleep next to me, because I scream and I throw punches in my sleep. Because of the flashbacks. Q. And today when you're in Court you don't have any flashbacks, other than the rubbing of the groin, and playing with [JDS]'s penis? A. As I said, as I think when we first started, I've got too much stuff going on right now. With my partner and our personal life, and her mother that's getting ready to pass away. Yeah, and, my head's all over the shop at the moment."
16. JE then gave the following evidence: "Q. Sir, as of 2019 when you gave your statement, were you using any drugs? A. No. I had been clean for 12 months, and then I relapsed when I went back to Newcastle. And, then I was on ice again for another 12 months, I think it was, and then I gave it up again, cold turkey, when I moved back to Queensland. And, I've been clean off ice for about 18 months now, nearly two years. … Q. What I suggest to you, sir, is that everything you have described to police and in Court today about the sexual acts against you when you were two years old is just fantasy. A. No. I disagree. Q. I suggest to you that you have been brainwashed by your mother since you were a young boy, and by the-- A. By who? By my mum? Q. Your mother. A. No. I've been out of home since I was a young age. I moved out of - I fully moved out of home when I was 13 years old. Q. Do you remember that your mum and [JDS] separated in 1992? A. I wasn't there. I wasn't there when I separated. I was already living with my grandmother. Q. Are you aware of your mother notifying DOCS in 1993 that you had been sexually abused? A. Not that I know of. I didn't have much connection with my mum back then. Q. Has your mum ever told you that, that when you were a young boy, she had notified DOCS of sexual abuse in 1993? A. I knew of something along those lines back in the 90s, but I was too young to realise what was going on. … Q. I suggest to you that your mother started making allegations and using you and your brothers against [JDS] when she separated. Do you agree, disagree or you don't know? A. I disagree. If anything, it was the best thing my mum ever did - was leave him. Q. Was to leave him? A. That was the best thing she ever did - was leave him. Q. Do you know why she left him? A. Because of all the domestic violence and the sexual abuse. Q. Because of the sexual abuse in 1992? Do you say your mother knew that there was some sexual abuse happening? A. I don't know. I don't know. As I said, I wasn't living with my mum then. I was with my nan. Q. What I put to you is that [JDS] had an affair with a lady called Christine. Are you aware of that? A. No."
17. JE then gave evidence that his grandmother had told him when he was roughly nine or ten years of age that he had been sexually abused as a child, and physically and emotionally abused. He understood that she was referring to the accused. He gave further evidence that he could not remember disclosing any of the sexual abuse when he saw a counsellor in the 1990s whilst in the care of the State.
18. In re-examination, JE gave evidence about having flashbacks about numerous things. He was also asked about his grandmother telling him he had been sexually abused as a child when he was 10. He was asked: "Q. The evidence you've given today to his Honour about what you say [JDS] occurred to you, is that what happened or what your grandmother told you happened? A. No, that's what I told - no, my grandmother hadn't told me anything other than I was sexually abused, emotionally and physically."
19. JE's statement dated 30 December 2019 was marked for identification as MFI#4 and his statement dated 10 March 2020 was marked MFI#5.
20. The agreed facts were tendered and became Exhibit A1. They provided as follows: 1. In September 1981, DE was born. 2. In July 1984, DSE was born. 3. In 1987, DE attended Kindergarten. 4. In May 1987, JE was born. 5. In 1988, the accused and ME met. 6. In November 1988, the accused and ME married. 7. In late 1988, ME, her three sons and the accused moved into premises at [M]. 8. In 1989, DSE attended kindergarten. 9. In September 1989, PS, child of the accused and ME, was born. 10. In 1990, the accused, ME and the children move to [A]. 11. In May 1990, JE turned 3. 12. In July 1990, DSE turned 6. 13. In September 1990, DE turned 9. 14. AS, child of the accused and ME, was born in January 1991. 15. In May 1991, JE turned 4. 16. In July 1991, DSE turned 7. 17. In September 1991, PS turned 2. 18. In September 1991, DE turned 10. 19. In 1992, JE commenced Kindergarten. 20. In January 1992, AS turned 1. 21. In April 1992, the accused and ME filed consent orders relating to the custody of PS and AS. 22. In July 1994, the accused and ME divorced. 23. On 1 March 1995, DE attended Orange Police Station and provided a statement in relation to the accused. 24. In April 1995, the accused acquired Australian citizenship. 25. In August 2018, DE disclosed to a trauma counsellor at Parklea Gaol that he was sexually abused by the accused. 26. On 12 November 2018, DSE prepared an informal statement. 27. On 15 November 2018, DSE attended Tweed Heads Police Station and disclosed that he was sexually abused by the accused to Detective Senior Constable Kurt Edmonds. 28. On 21 December 2018, DSE made his first statement to police. 29. On 1 February 2019, Detective Senior Constable Cole commenced an investigation in relation to allegations made by DSE, 30. On 17 September 2019, Detective Cole made contact with DE and asked him if he wished to make a statement. 31. On 29 October 2019, DE made a statement to Detective Cole at the Orange Police Station. 32. On 17 December 2019, Detective Cole had a conversation with JE and informed him that DSE and DE both supplied statements to police. 33. On 30 December 2019, JE made a statement to Detective Cole at the Macquarie Fields Police Station. 34. On 21 January 2020, the accused was arrested and charged.

The accused's ERISP

1. The accused's ERISP interview taken on 21 January 2020 was played in court. The transcript of the interview was marked for identification as MFI#6 and the disk became Exhibit A6. In the interview, the accused denied any sexual abuse of DE, DSE or JE when the police put the allegations of each of the complainants to him.

Evidence of DE

1. DE gave evidence that he was born in September 1981. He was the eldest child of his mother, ME, and had two younger brothers, DSE and JE. He was approximately seven years of age when the accused moved into the family home at [A].
2. DE gave evidence that the accused drank alcohol and on occasions became very violent, bashing his mother as well as DE and the other boys. As the eldest, he gave evidence that he would stand in front of his mother and the children and try and protect them. In terms of physical violence, he gave evidence that the accused would flog him with "belts, the belt strap, his fists and other things". He gave further evidence that he had seen DSE get bashed with a skipping rope and JE get hosed down after he had pooed his pants. He also gave evidence that the accused would bite the kids' cheeks.
3. When asked about the accused biting kids on the cheek, DE gave evidence that he only saw him bite JE, not DSE.
4. DE gave evidence that the accused touched him on the penis occasionally. He then gave evidence that the accused would come into his room and have sexual intercourse with him. He gave the following evidence: "Q. Can you recall when - and we'll refer to this as sexual activity - can you recall when it first started? A. The touching, about six months after he moved in. Six - yeah, around there. It wasn't very long after. Q. How often would that occur, the touching of your penis? A. It was daily for a while, until he done what he done. Q. Daily for a while. Okay. And was it-- A. ..(not transcribable).. Q. And when that occurred, that is, the touching on the penis, where did that happen, the touching on the penis? A. In my room, the shower, his bedroom, just around. Q. When you say touching on the penis, was that on top of the clothes or under the clothes, on your skin? A. No. On top of the clothes at the start. Q. On top of-- A. And then it was-- Q. --the - yes? A. On top of the skin. Q. You mentioned something else happened apart from that; can you tell his Honour any occasion that something else happened of a sexual nature? A. I didn't get that, sorry? Q. You said that sometime after [JDS] came into the family, that he started touching you on the penis, started on top of the clothes and then it progressed to being on the skin? A. Yeah. Q. I think you mentioned - you did mention that he did other things to you before; what was that? A. He said "suck my penis". Q. Are you able to tell his Honour about that particular incident when he sucked you on the penis? Where you were and what happened? A. It was in his room. It happened in [AS]'s room, our - my room. Is that what you mean? Q. I'm just asking if you can just tell us about one incident that occurred - a particular incident when you say he sucked you on the penis? A. Yeah. That was in his bed. Q. What happened? How did you come to be in his bed? A. I was massaging him. Q. How were you massaging him? A. Like a massage. You rub their skin. And then I - around the side, I was touching his - I touched his penis. He touched mine, and then - yeah. … Q. Just pause there. I just want to talk about this occasion first, okay? You don't know how you got into his bedroom; is that right? A. Yeah. Q. And you said before that you were massaging him? A. Yeah. Q. How were you doing that? What part of his body? A. I was rubbing his back, his feet, his legs, his bum. Just massage. Q. Did he have clothes on at that time? A. Yeah. Q. What happened after that? A. He rolled on the side and then sucked my dick. Q. Did you have clothes on? … Q. Did you have clothes on at that time? A. I did at the start. At the start, yes. Q. When you say he sucked your dick, did you have clothes on then? A. No, he pulled my pants down. Q. Do you remember what sort of pants you had on? A. No, I couldn't recall that. No. Q. How long did that go on for, the sucking of the dick? A. On and off for - like, what? Q. No, just this time. I'm just asking about-- A. That was a quick - it was quick."
5. That was the evidence relied on by the Crown in relation to Count 1 on the Indictment. DE then gave the following evidence: "Q. Did something happen after that? A. A few months after it, he done other stuff. Q. I'm sorry, I missed that. A few months after. A. He done other things. Q. A few months after - let's just take it one step at a time - where were you and him? A. In our room - my room. Q. Was there anyone else in there apart from you and [JDS]? A. I can't recall. No, I don't - I'm not sure. I don't know if I shared a room or didn't share a room. It was a while ago. … Q. What happened on this occasion, a few months after the time you said he sucked your dick, and you were in your room? What happened on that occasion? A. He rolled me on my side and penetrated me. Q. Did you have clothes on? A. Yeah, I did. I had a pair of undies on. Q. When you say he penetrated you, you'll have to tell the judge how that happened. It could mean a number of things. A. He came into the room, he rolled me on my side. I was playing with his penis, he rolled me on my side, and then he put his penis where it shouldn't go, in my anus. I wish I didn't years ago, but I didn't because I ..(not transcribable).. Q. Did you still have your underpants on when he did that? A. No. Q. Are you able to say whether his penis was erect or not at that time? A. Yeah, it was. I can tell you what his penis looks like. Q. How long did he have his penis in your anus, do you know? A. A few minutes, five minutes. Not long. Q. How did you feel at that time? A. Like I needed stitches. I don't know. It was hurting. It wasn't right. Q. Did you feel any pain? A. Yeah, I felt like I got ripped. Q. Did he do anything other than put his penis in your anus? A. He sucked my penis first before we had done anything."
6. That is the evidence that the Crown relied on in relation to Count 2 on the Indictment.
7. DE then gave the following evidence: "Q. Did this type of sexual activity continue or not after this incident in your room where you say he put his penis in your anus? A. No. He did try later on, but it didn't happen again. It happened again, but it didn't happen again because I said no, that it hurt. Q. Are you able to say how long after the incident you've just spoken about that happened in your bedroom that the next incident happened where you said it didn't finish? A. Yeah, there was like about two - it was - I was still sore because about two weeks after, the soreness went away. It didn't go away, but it sort of went away. I had a scab there. Is that what you're asking? Q. Yes. How long after the first time did he try that again? A. Two weeks, and then a month after that. … Q. Where did this happen when he tried again? A. In the house. Q. Are you able to recall what room? A. I'm pretty sure it was his room at this time. I'm not sure. Q. What happened on that occasion? A. I told him no. He tried touching me again, and I said no."
8. DE gave evidence that he had, over the years, used a lot of drugs but stopped using drugs seven years ago when he went to gaol. He was asked whether he told his mother and gave the following evidence: "Q. Did you tell your mum, while [JDS] was still living in the house, did you tell your mum what-- A. I tried to tell her. I tried to tell mum, but mum had her own issues. Mum was getting hit herself. She didn't believe me. Q. Was [JDS] still living with the family when you said you tried to tell her mum? A. I did. Yeah, he was. Q. Can you remember what you said to her and what she said to you? A. I said - no, I can't - all I know, I said he hurt me, that's all I said. I didn't say what he actually done. I said he hurt me."
9. DE then identified a statement he had made at the Orange Police Station in 1995 which became Exhibit 1.3 (formerly MFI#7) and a statement he made to police on 29 October 2020, which was marked for identification as MFI#8.
10. In cross-examination, DE gave evidence that he did not remember the accused working when they lived at [A]. He gave evidence that he was six or eight years of age when the accused started touching him and when asked what class he was in at the time said it would have been "like, five or four - three, I'm not sure". DE also gave evidence that he didn't remember his mother working when they lived at [A].
11. DE agreed that he had told police that the accused started to sexually abuse him when he was in about Year 3 or Year 4 at school. He agreed that the accused was violent towards his mother, himself and his brothers, but when it was put to him that the accused's violence was in terms of "discipline", he disagreed, saying that the accused would punch them. He disagreed that the only time the accused used an implement was when he lost his temper with DSE. He confirmed that the accused had used a skipping rope to strike DSE in the backyard. He did not know the reason why DSE had been punished on that occasion.
12. DE was asked about the accused biting the children on the cheek. He said that he had seen the accused doing it and leaving bite marks on both cheeks, but not to DSE.
13. It was put to DE that the accused had never touched him on the penis, with which he disagreed. It was put to him that he had no recollection of any individual incident of that kind occurring, but he disagreed.
14. DE agreed that there were two incidents that he could recall with the accused. On the first occasion, the accused had sucked his penis and on the second occasion, in his bedroom the accused had penetrated his anus. He was then asked: "Q. Now, do you agree that when you went to police, you said that the first time that [JDS] sucked your penis, he also, at the same time, placed his penis in your anus? A. Yes. Q. Do you accept that this is a different version of what you have told the court today? A. No. Q. Do you accept that when you spoke to police about that [JDS] sucking your penis, you never told police that you massaged him before that? A. I didn't think it was relevant. Q. Today, when you were asked any details about if there was anyone around in the house, you said there was no one else; correct? A. Yeah. Q. Do you accept that what you told police was that, in your house all your - all the other kids were there? A. Outside playing. Q. So, that's your memory today, that the first time ever that [JDS] put your penis in his mouth, the other kids were playing outside; correct? A. No. Q. What's your memory, sir? A. My memory is the kids were outside and he was touching me. Q. So, it was daylight? A. Yeah. Q. Where was your mum? A. Mum would have been at Joanne's. Q. Do you accept that you told police that this first time [JDS] put your penis in his mouth, it was at night-time? A. I don't know if it was daytime or night-time. It was - he was touching my penis. He sucked my penis of a night-time, daytime. I'm about to walk out..(not transcribable).. Q. Are we talking about the first time ever, that your step-father is interfering with your body, touching your private-- A. Yeah. So it was in the bedroom."
15. DE was asked about the statement he made to police on 29 October 2020 (MFI#8). It was put to him that he had given a different version to police at paragraph 12 thereof, by describing the first occasion as both fellatio and penetration of his anus. He gave the following evidence: "Q. I asked you whether you agree that the incident you've described to police is very different from what you have described in court; do you agree or disagree? A. I disagree. I disagree. Q. Do you agree that you reported to police that [JDS] penetrated your anus once only? A. Yes. Q. And this occurred immediately after he sucked on your penis? A. Yes. Q. Do you accept that what you told the court is that there was first an incident where he sucked your penis? A. Yes. Q. And that a few months later, without him sucking your penis, he came into your bedroom and penetrated your anus? A. Yes. Q. I'm suggesting to you the reason why you gave a different version today is that you are making up those allegations? Can you hear me? A. Yeah. … Q. I'm suggesting you're making up the allegations? A. I disagree. Q. I suggest to you that you have never told anyone that you had given massage to [JDS] in his bedroom on your own; do you agree or disagree? A. Sorry, can you say that again? Q. You've never told anyone that you gave a massage to [JDS], just you and [JDS] on his whole body; do you agree or disagree? A. I disagree - I agree, I mean, sorry."
16. DE was then asked as follows: "Q. So, sir, what do you say happened? Was the fellatio at the same time of the penetration of your anus or was the fellatio some months prior to being penetrated in your anus? A. It started with touching me and then it went to sucking penis and then it was sucking the penis and then penetration. That's how it went. Q. So two different incident? A. Two different times. Q. Why did you say something different to police? A. Was probably on drugs. I don't know. What did I say to police? Q. I showed you in your statement what you said to police? A. I know what happened. Q. I'll ask you another question. So this thing about [JDS] coming to your bedroom and waking you up in the middle of the night, that was a lie, wasn't it? A. No. No, it wasn't. … Q. Do you agree that when Mr Crown asked you, you did not say it was the middle of the night and [JDS] woke me up; you agree? A. I agree. Q. And later on, in cross-examination, you actually said that this happened when the other kids were playing outside and it was daytime? A. That was a different occasion. Q. I submit to you that this never happened, sir; it's in your head? A. Yeah. Q. Do you agree or disagree? A. I disagree. I know what happened. I felt that pain. You didn't feel the pain. Q. I suggest to you, sir, this is not the first time you're making up allegations against [JDS]; do you accept that? A. No, I don't. Q. Or disagree? A. I disagree."
17. DE was asked about the statement he made to police in 1995 at Orange Police Station. He was then 13 years of age but had no recollection of making the statement. It was put to DE that the content of the statement referring to his sister AS was a lie, which he denied. It was put to DE that this was a perfect opportunity for him to tell police that the accused had done things to him, but he responded, "I didn't want to do this. I wanted to keep this dark." DE denied that someone put something in his head when he went to the police station to make allegations against the accused.
18. It was put to DE that what he told police in 1995 was a lie and a complete fantasy. He disagreed.
19. DE was asked about a statement he made to police in May 2021, where he referred to the content of his statement in 1995. In the latter statement, he had said that there was more than one incident. It was put to DE that he was making his evidence up, with which he disagreed. His statement dated 25 May 2021 became Exhibit 2.
20. DE gave the following evidence: "Q. I suggest to you that on more than one occasions, [JDS] did ask you and your brothers to massage his lower back, never his bumcheek. A. That's like he's got not no foreskin, either, hey. He's got foreskin. Same thing, Ms. He asked me to-- Q. This is not responsive. I'm asking your Honour to ask the witness to limit his answers. A. Yes, he asked me to rub his cheeks and my brother - his cheeks, his everything other than his penis at that time."
21. DE gave evidence that he told his uncle RE about the accused assaulting AS, but when asked why he didn't tell his uncle about the accused doing anything to him, he gave the following answer: "A. Because I didn't want no one to know about me. I was scared. I was in - I was scared. Like, you want me to go and tell my Uncle [RE] that bashes me that I got raped by my fucking - sorry - by my ex - my mum's ex-boyfriend? I'm not gonna go and tell anybody. Q. Did you tell [CA]? Did you tell [CA]? Well, did [CA] bash you? A. [CA] didn't bash me. My uncle [RE] bashed me..(not transcribable)..bashed me. [CA] didn't bash me. Q. So you could have told [CA], because at the time in 1995 you were living with [CA]; correct? A. Yes, but I didn't tell [CA]."
22. DE was asked about the first incident about which he gave evidence and whether there was any conversation between him and the accused. He said: "A. No. Just, "Don't tell - don't - don't tell anyone." Q. So he did-- A. "It's our little secret." Q. It's our little secret? A. Yeah. Q. And why-- A. "Or mum will get hurt." Q. Why you didn't say that to police when you gave your statement? A. I didn't think it was relevant at the time. Q. And did [JDS] threaten you in any way? A. Sorry? Q. Did [JDS] threaten you? Did he say to you something along the lines, "If you tell it, you know, I'll flog you" or-- A. I - I just told you that. Q. You said he told you, "Don't tell anyone. It's a secret"? A. Yes. I just told you, "Or I'll bash" my mum or bash the kids. The same thing. Q. What did he say? "I'll bash the kids" or "I'll bash your mum"? A. Bash mum and the kids. "I'll hurt them." Q. You're just making this up, aren't you? A. Yeah. You're making it up, too."
23. In respect of the second incident, DE was asked whether the accused ejaculated and he gave evidence that he did. He gave further evidence that the accused did not say anything to him on that occasion.
24. On the occasion when DE said that he stood his ground against the accused and said no, it was put to him that it was inconsistent with him being scared. He gave the following evidence: "Q. Do you accept that it's inconsistent that you said, "I stood my ground. I said no," but on the other hand, you said you were scared? A. Yes. I was fearing for my life, mate, at that time. Yes, I was scared. Q. I suggest to you that none of those sexual acts ever happened? Do you agree? … Q. None of the sexual acts ever happened; do you agree or disagree? A. Disagree."
25. DE agreed that when he spoke to his mother, he was referring to the accused beating him and bashing him. He gave the following evidence: "Q. You didn't tell your mum about anything sexual. A. No. Q. Because nothing sexual happened with [JDS]. Do you agree or disagree? A. Disagree, Miss."
26. DE gave evidence that he spoke to a psychologist while in gaol in 2018 and that was the first time he told anyone about the alleged sexual assault. He was asked whether he had ever told his mother about what the accused did to him sexually and said, "No, not until, like, a few years ago." It was put to DE that what he told the counsellor in gaol was a lie, which he denied. The report of the psychologist included a reference that DE told her that he had been raped anally on two occasions. He was asked: "Q. I'm reading what you said to her. So, you accept you said to her he raped you anally twice? A. He tried the second time. He raped me once properly. The second time he tried. Didn't happen. … Q. Sir, do you accept that today you never told Mr Crown that on the first occasion [JDS] tried to penetrate your anus? A. On the second occasion, yes. There was no second occasion. Q. So, there was only one occasion? A. There was one proper penetration, the first time. The second one was attempt. I don't know what the lady wrote down, but that's what happened."
27. It was put to DE that he had told the psychologist because it would help him obtain parole, which he denied.
28. DE was asked whether he had ever heard DSE or JE making allegations about JDS and said, "no". He could not recall telling the psychologist that his brothers had told their mother that the accused did things to them. He gave the following evidence: "Q. What I suggest to you, sir, is that since you were a young boy who wants to rid of [JDS] because you didn't like [JDS]; correct? A. Obviously. Q. You didn't like him because he was bashing your mother; do you accept that? A. I didn't like him because he bashed everyone. Q. Yes, that's correct, because he was violent with all of you? A. Yes. Q. And therefore you started making allegations against him? A. No. Q. Sexual allegations-- A. No. That's not true. Q. --regarding your sister? A. No. Why would I say something and - for my whole life? Why wouldn't I stop it back there?"
29. DE was then asked: "Q. Well, the question was did your grandmother ever tell you that-- A. No. Did my grandmother ever tell me? No. Not that I can recall. Q. Did your mother ever tell you you had been abused by [JDS]? A. No. Q. Did you ask the psychologist in gaol to send a copy of the report to your mother? A. No, I don't recall. No. Q. Have you been given a copy of your report by the psychologist? A. No."
30. DE was then asked: "Q. I suggest to you that you..(not transcribable)..in fact, you're hoping to get some sort of compensation for making those allegations? A. No. I don't care about money, miss. I'll work. Q. I suggest to you that when you were younger, after the separation with [JDS], someone - whether its you, or your family put in your head that [JDS] had sexually abused all the kids? A. No, miss. Q. Have you ever heard your mother tell any family or your doctor that [JDS] had sexually abused you and the children? A. Sorry, sir, can you say that - sorry, miss. Q. Have you ever heard your mother say to anyone that [JDS] had sexually abused you and all your sibling? A. No."
31. There was no re-examination.

Evidence of ME

1. ME gave evidence that she was the mother of the three complainants and confirmed their dates of birth. She married the accused in November 1988. ME gave evidence that the accused moved into the family home first at [M] and their first child PS was born in September 1989.
2. In 1990, the family moved to [A] and the couple had another child, AS, born in January 1991.
3. ME gave evidence that she did not work whilst living at [M] but when the family moved to [A], she worked at a chicken farm. She worked five days a week, starting at 7am and finishing between 4 and 5pm. The accused also worked in a full-time job at a dairy whilst the family lived in [M].
4. ME gave evidence that the accused drank alcohol every day, and she observed him physically abuse each of the complainants. She gave further evidence that when JE was young and would poo in his pants, the accused would take him outside and hose him down. She gave further evidence that the accused would bite JE on the cheek which left bruises on JE's cheek.
5. ME gave evidence that she became aware that the accused had struck DSE with a skipping rope. She was not present at the time, but she observed bruises across DSE's back and legs. She showed them to her sister LS, who called DOCS. DSE was taken to hospital and the accused was charged.
6. ME gave evidence that none of the three complainants ever told her that they had been sexually abused by the accused when he was still living with the family. She found out about the sexual abuse of DE when she received paperwork whilst he was in gaol, where he had told his counsellor.
7. In cross-examination, ME denied that marrying the accused a short time after she met him created tensions between the two families. She agreed that when she first fell pregnant with PS, the accused was working for a plastics factory. She could not remember him working for a diary after they moved to [A].
8. She denied that she had worked part-time at the chicken farm after they moved to [A].
9. In respect of the physical violence perpetrated by the accused, ME gave the following evidence: "Q. I was suggesting to you, Miss, that when you lived in [A], you never went for a sleepover, leaving your children behind for the night. Do you agree? A. I did when I used to get bashed really bad, yes. Q. So, you're saying that you knew that [JDS] was physically violent with your children, and you would leave your children alone with [JDS]. A. Well, I couldn't get them out of the house. Q. So, I take it that when he was violent with you, he was intoxicated. A. Not all the time. Q. This never happened, Miss, I suggest to you, that you never left your children behind for the night after having been assaulting by the accused. A. Yes, I did. Sorry. I was too scared to go back. I couldn't get them out of the house."
10. ME denied that she gave permission to the accused to hose JE after he had pooed his pants. She agreed that she had seen the accused bite each of the children including PS and AS on the cheek. She was asked: "Q. Do you accept that if you had been so concerned about [JE] being bitten by [JDS], you would've taken [JE] away from [JDS]? A. I used to have to tell [JDS] to stop biting him. Not that he'd listen to me. Q. You don't have any photographs, do you, of [JE]'s cheek being full of blood or with bruising; correct? A. Not blood but bruising. I have got photos, but I haven't got them here."
11. ME gave evidence that she had no idea why the accused had hit DSE with the skipping rope. In respect of her separation from the accused, ME gave the following evidence: "Q. He had an affair, was unfaithful, were you aware of that? A. Yeah, I'm aware of that. Q. You were very angry with him? A. That wasn't the first affair [JDS] had while I was with him. He kissed my best friend when we got married that ‑ on the night, on the reception, so it's not the first time. Q. That was the time where he left and he never came back, correct? A. Yes, that's correct, but I wasn't angry. Q. I suggest to you that shortly after you and [JDS] broke up you spoke to your sister [LS] and started making allegation against him relating to sexual assault against the children? A. No, not that I can recall. Q. Do you remember saying that [PS] had been given warts by the accused? A. I didn't say they were by him. I said [PS] has genital warts. … Q. What I suggest to you is that you concluded that [PS] had warts because he had been sexually abused by [JDS]. Do you agree or disagree with that proposition? A. I disagree I said it was from [JDS], but I did say [PS] has got genital warts, yes…"
12. ME was further cross-examined about motive as follows: "Q. Is that you started making allegations against [JDS] because you were in the process of deciding on custody of your children? A. No, I didn't say that [JDS] did it. Q. You also told your sister [LS] that [JDS] had done things to the boys, do you accept that or not? A. Not that I can recall. Q. You started keeping documents from that time in the hope that you could get revenge against [JDS]? A. That's not right. I document a lot of things and I've ‑ keep a lot of things over the years."
13. ME confirmed that she kept files for each of the children and that she had sent DSE's psychologist Meg Perkins some documents.
14. ME gave evidence that she had no recollection of DE telling her when he was 18 years old that the accused had sexually abused him. Nor did she know that DE had made a statement to police in March 1995. However, she later came into possession of a copy of the statement. She denied that she was the one who told DE that the accused had abused AS.
15. ME gave evidence that DE had never disclosed to her what had happened to him but she became aware that he had spoken to a psychologist in gaol, when she received the paperwork from a counsellor at a drug and alcohol treatment complex.
16. She denied that she had told DSE that DE had disclosed sexual abuse to the gaol psychologist and could not recall discussing that with DSE's psychologist, Meg Perkins.
17. ME gave evidence that JE had told her about the accused sexually abusing him in the last 12 months but did not go into detail.
18. ME was shown a copy of Exhibit 1.8, a letter from Dr McDonald that was undated. It was put to her that she had sent that document to Meg Perkins, but she was not sure and probably didn't give it to Meg because it had nothing to do with DSE. She agreed with respect to Dr McDonald's opinion that he was unable to confirm the cause of the genital warts observed on PS.
19. ME was shown a copy of Exhibit 1.9 and denied giving that document to DSE because it had nothing to do with him. It was put to her that she notified DOCS in 1993, after she broke up with the accused so as to seek revenge against him, which she denied.
20. ME was shown Exhibit 1.11, the medical report by Dr McDonald dated 7 December 1990. She denied giving that document to DSC but would have sent it to Meg Perkins.
21. The defence case was put to ME as follows: "Q. In fact, [JDS] was not the monster that you tried to describe him, hitting your children everywhere; correct? A. [JDS] did hit my kids everywhere, and he is a monster. Q. What you told police when you gave a statement in 2020 is that, I put, "I have, on occasion, witnessed [JDS] hitting the kids. Generally, he used to slap them around the head, for example. I cannot recall specifically what he used to do. I did not ever see [JDS] use an object to hit the kids, although he did, on occasion, use a strap"; correct? A. While I was around. While I was around sorry? Q. What you're being asked is what you have seen; correct? A. Of what I've seen, yes. Q. So, what you've seen is slapping them around the head. So, you haven't seen him using an object other than, on occasion, use a strap; correct? A. He used a strap, yes."
22. ME was shown Exhibit 1.12 which she said she prepared before she saw Detective Cole to prepare her statement. She denied giving that document to DSE in 2018 for him to give it to police. She gave evidence that she may have given the document to Meg Perkins because she had asked for information.
23. ME was questioned further about her report to Dr McDonald that she had been in an abusive situation for 12 months prior to September 1997. She gave evidence that that related to DSE, who was living in a caravan in her backyard and was, "a very angry boy". The letter from Dr McDonald dated 16 September 1997 became Exhibit 1.22.
24. ME gave evidence that she vaguely remembered the accused hurting his back at work in 1991. Exhibit 1.20 was a report of Dr Basil Ireland dated 20 May 1992, together with MediScan reports and a letter from Dr Tang dated 22 January 1992.
25. ME was shown a document from the Children's Court dated 28 June 2020. It related to a notification received by the Department on 10 February 1993 regarding JE. She had never given the document to JE, and could not recall discussing the notification in 1993 with her mother. The report became Exhibit 1.21.
26. There was no re-examination.

Evidence of the Officer in Charge ("OIC") Detective Harvey Cole

1. Detective Cole had been assigned a matter on 1 February 2019 to investigate an allegation of child sexual abuse made by DSE. He obtained statements from Maxine Driver and Dr McDonald and on 17 September 2019, spoke to DE. He obtained a statement from DE on 1 March 1995. On 30 December 2019, he obtained a statement from JE and on 10 January 2020 he obtained a statement from ME.
2. Detective Cole gave evidence that on 21 January 2020, he arrested the accused, following which the accused took part in the ERISP interview Exhibit A6.
3. In cross-examination, Detective Cole gave evidence he had obtained a statement from Detective Senior Constable Kurt Edmonds, who had attached contemporaneous notes from his police notebook to his statement. Those notes became Exhibit 3.
4. Detective Senior Constable Edmonds had taken a statement from DSE on 21 December 2018. At paragraph 21, DSE stated, "Mum has told me that my brother DE disclosed similar sexual assault from [JDS]."
5. In paragraph 22, DSE told police, "I got told that PS suffered a sexually transmitted disease as a child".
6. Detective Cole confirmed that in the later statement, DSE had told police that his psychologist Meg Perkins had persuaded him to report the matter to police. Ms Perkins had written a letter on his behalf because his literary skills were not that good.
7. In respect of DE, Detective Cole gave evidence that ME gave him a copy of DE's statement dated 1 March 1995, which he had prior to showing it to DE in October 2019. He had taken a further statement from DE on 25 May 2021 (Exhibit 2). The purpose of that statement was to satisfy a requisition from the DPP. Detective Cole gave evidence that in May 2021 he did not recall giving DE the statement dated 1 March 1995 to read again.
8. Detective Cole was asked about the statement of JE dated 30 December 2019. He was then taken through details JE had given in a further statement in March 2020.
9. Detective Cole confirmed that the first statement he received from ME was on 10 January 2020. ME had given him five documents during that first statement. She had then given a further statement on 24 February 2020 and another statement on 14 January 2021.
10. Detective Cole confirmed that the accused does not have any sexual offence in his criminal history. He gave evidence that he had made no inquiries with the psychologist Meg Perkins. He did obtain a statement from Roslyn Leahy, who was the psychologist of DE. Detective Cole gave evidence about inquiries he made at Orange Police Station, however he was unable to obtain records of the roster for 1 March 1995.
11. Detective Cole gave evidence that he had made no inquiries with any children of the accused other than AS and PS. Finally, he obtained a photograph of DSE following the skipping rope incident from the solicitor for the DPP who had retrieved the court file with those photographs.
12. There was no re-examination.

Evidence of Dr A McDonald

1. Dr McDonald is a paediatrician who had treated the children of ME. He identified a letter written by him dated 16 September 1997 (Ex 1.22) addressed to, "To whom it may concern". In that letter, he referred to the family having been in "a very abusive situation in the last 12 months" and that they required rehousing.
2. Dr McDonald also identified an undated letter he sent, again addressed to "To whom it may concern" (Ex 1.8). Dr McDonald gave evidence that he believed the letter had been signed by him in late 1997. The reference to the allegations made against the accused in the letter came from information supplied by ME.
3. In cross-examination, Dr McDonald agreed that in 1990, he prepared a report in relation to DSE. That report was Ex 1.11, and referred to the examination of DSE by Dr McDonald after DSE had been struck by the accused and suffered injuries inflicted by a skipping rope. The injuries were described as follows: "There was extensive bruising present. Over his back, there were large numbers of thin, bright red-blue bruises in a linear distribution, consistent with a skipping rope injury. Over the left side of his back, there were bruises which varied in size from 22cm as a linear bruise to 9cm and 12cm circular bruises. There are at least eight bruises over his back consistent with repeated skipping rope injury of considerable force. Over his left ear and lower neck, there were also some bright blue linear bruises, about four centimetres in length. There is a similar bruise over his right neck. Over his left posterior thigh, there were some linear darkish brown bruises, which may be a little older, though [DSE] claims that these were inflicted at the same time."
4. In cross-examination, Dr McDonald confirmed there was no evidence of trauma to the anus of DSE.
5. Dr McDonald confirmed that the letter dated 16 September 1997 (Ex 1.22) was written to assist ME to get new housing. He gave further evidence that the undated letter (Ex 1.8) was written in the context relating to DOCS, where there were concerns about the children needing supervised access when the accused visited them. It was prepared at the request of ME. ME had told him that DE alleged that the father "was doing things to all the children", meaning that he alleged the father did "rude things". Dr McDonald thought that the letter was prepared at a time when there was no children present. The letter could have been prepared any time from mid-1995 to 1997.
6. In respect of the reference in the letter to PS being treated for perianal warts, Dr McDonald gave evidence that he put that in the letter at the request of ME, and that he told her he was not sure of the source or the cause of those warts. It was possible that he did refer to some possibility that it could be caused by sexual contact. Dr McDonald gave evidence that such warts could be transmitted at any stage or age of life and could be acquired just in the community, for example, by sharing a towel in a bathroom.
7. There was no re-examination.

Evidence of the accused, JDS

1. The accused gave evidence that he was born in Fiji in 1970. He came to Australia in 1987 and met ME in 1988. ME was living in [O], where he visited her many times. The accused gave evidence that he first worked for a timber company and his second job was with a plastics factory. He worked there as a process worker on the day shift.
2. Their son PS was born when they were still living in [M]. When they moved to [A], he worked at a dairy and was paid by cash.
3. The accused confirmed that he hurt his back at work in September 1991 when he was lifting a railway sleeper.
4. The accused gave evidence that in 1991 ME was working at an egg farm one or two days per week.
5. The accused gave evidence that he had fathered ME's three sons, DE, DSE and JE. When asked what he meant by that, he said, "I looked after the children, I cooked for the children, I feed the children, I shower the children, I look after the children like my own."
6. The accused gave evidence that he hosed JE's bottom when he would defecate himself. He gave the following evidence: "Q. Why did you do that? A. It's when he poos the pants, it's all over the leg, everywhere, it came out the nappy. So, he was outside at the time, and [ME] was there too, so took his clothes off, and I just got the hose and washed his bum. Q. You have heard evidence that you allegedly pushed [JE] into the gravel with his head first. Did you do that? A. I did not do that. Q. You have also heard evidence that you pushed his mouth into the lid of a tin, and you hurt his lip. Do you remember doing that? A. I did not done that. Q. Did you ever do that? A. No, I did not do that. Q. Did you ever punch with your fist the complainants? A. No, I haven't punched any kids. Q. You told police that you have slapped them; is that correct? A. Yes, I did. Q. On which occasion do you say you'd slap the complainants, the children? A. Sometimes they fighting each other, which I had to discipline them. Sometimes they did not do their homework. That's when I slapped them. Q. What else do you remember doing to them? A. I don't know. Q. Did you ever use a strap or belt to hit them? A. No. I have used skipping rope on [DSE], which I can remember now that I did use a skipping rope at one stage. Yes, I did. Q. You were actually asked by police when they interviewed you whether you had ever used a skipping rope. Do you remember they asked you that? A. They did ask me that, yes. Q. I think your answer was, "No, I don't think so", but you referred to using a belt against [DSE] once. Do ..(not transcribable).. A. Yes. At the time, I could not recall. This person has been asked me 30 years after which what occurred, and I could not remember, did I use a belt or a skipping rope. So, I can recall now that it was a skipping rope, yes. Q. At the time, it is the case, isn't it, that you pleaded guilty to assaulting [DSE]; correct? A. Yes, I did. Q. You told police that the reason why you belted him and that was your word was because he had run out of the house. Can you explain what you say happened with [DSE]? A. Well, [DSE], when he took off from home when he came back, I went and ask him, "[DSE], where have you been?", and he stated that he went to burn the school down, and that's when I spun out. I got really, really angry, and there was a belt there was a skipping rope sitting right next to the door, and I hit him with it. I smack him with it, yes, I did. Q. Did you ever, after this incident, belt or using any implement to hit the boys? A. Sorry, Miss, I didn't understand that. Q. After that incident, did you ever use any belt, strap or implement to hit the children? A. No, I did not. I used my hand, that's it. Slap hand or backsides, something like that."
7. The accused gave evidence about court orders made in 1992 with regards to AS and PS following his separation from ME. He gave the following evidence: "Q. The orders were that you would see them with the supervision of [LS] and [VS], correct? A. Yes. Q. Do you know the reason why there was supervised visit of the children at the time? A. It's maybe it's my drinking and violence that's happening in the house. That's probably why, but I'm not really sure. Q. Were you ever contacted by DOCS about [AS] and/or [PS] at any time? A. No, I did not."
8. The accused denied ever asking the children to massage his back, but gave evidence that he probably did ask them to walk on his back. He denied ever asking ME's children to massage his naked bottom.
9. With respect to biting the children, he gave the following evidence: "Q. Did you ever bite any of the children? A. Yes, I did. Q. You did say in your interview that it was a "sweet bite"; what do you mean by a "sweet bite"? A. I love all the children. I love the sweet bite is just it's the habit I got. I love the children, so I grab them, I give them a bite. I mean [ME]'s and my two children. My children here I always bite. It's a bite that is not meant to hurt anybody; it is meant to love somebody. Q. Did you ever get your teeth on their skin? A. Yes, I did ..(not transcribable).. sweet time(?). It's not the bite bite bite hard, no. Q. Did you ever bite [JE] to the point of drawing blood on his cheek(?)? A. No, I did not. Q. Did you see any bruising on the cheek of [JE] or any of the children as a result of you biting them? A. No."
10. The accused gave evidence of relationships he had following his separation from ME. He had three children with Michelle and then had another partner named Rachel Kenny, with whom he had two children. After that, he met his current wife, with whom he has been with for more than 20 years and they have four children, three boys and one girl.
11. The accused gave the following evidence: "Q. You have heard the allegation made by [DE], [DSE], and [JE]? A. Yes. Q. Each of them have alleged that you have sexually abused them. Have you done anything that they have alleged you did to them? A. No. No, I did not. Q. Did you have any sexual interest in A. No, I did not. … Q. Did you have any sexual interest in either [DE], [DSE], or [JE]? A. No, I did not. Q. Do you have any sexual interest in young boys? A. No, I don't. Q. Do you have any sexual interest in men? A. No, I don't. Q. One last question. You suggested to the police officer when they interviewed you to contact your children, correct? A. Yes, I did. Q. Are you aware of any of your children being contacted by police? A. No, I don't. Q. Or any of your ex partners? A. Well, I just heard from a friend(?) that [AS] has been approached, but I don't know about this."
12. In cross-examination, the accused gave the following evidence: "Q. I suggest to you that at the time that you were living with [ME], you had sexual interest in your stepsons, the boys? A. No, I don't. Q. The skipping rope incident, that would stand out to you, wouldn't it, because it was very serious? A. Yes, it was. Q. It was. You pleaded guilty to assault occasioning actual bodily harm. A. Yes, I did. Q. Do you agree that you were convicted, and in March of 1991, you were sentence to six months periodic detention, weekend detention? A. Yes, I did. Q. Did you complete that six months of weekend detention? A. I'm not sure. I'm not sure. I don't think so. Q. Did you ever attend a gaol to do weekend detention? A. Yes, I did. Yes, in [C]. Q. How many? Where was that? A. In [C]. Q. How many weekends did you have to spend in custody? A. I'm not sure, sir. Q. Was it one or two or how many? A. Like I said, I'm not sure, sir. Q. This incident of the skipping rope, I suggest to you that [DSE] never said that he was going to burn down the school. What do you say to that? A. Yes, he did say that, sir. Q. Did you tell the police that? A. I did, sir. Yes, I did. Q. Were you provided with a fact sheet when you were charged by the police? A. I'm not sure, sir. Q. I suggest to you, sir, that there was no mention in the police fact sheets of [DSE] saying he was going to burn down the school. A. Well, [DSE] did say that to me. This is when I got pissed off. Q. I suggest to you that he never said that to you. A. I suggest that he did. Q. I suggest to you that you never told the police that. A. I'm not sure about the police, but that's why I smacked him with the rope skipping rope."
13. The accused was further asked about his relationship with the children: "Q. Do you agree you told the police your relationship with the kids was all right? A. Yes. Q. But, I suggest to you that it wasn't all right because you used to belt them. You used to hit them. A. I did. Yes, I did, on terms when they not listen or they needed discipline. And, the belting is the rope which I used, like I said, when he said, "I want to go and burn the school down". Q. Had you been drinking before you attacked [DSE] with the skipping rope? A. No, I don't. Q. You weren't drinking? A. I don't think I ever drank and hit the kids. Q. So, you'd only hit them when you were sober; is that what you're saying? A. What I'm saying is if they make a mistake, they not listening, they're fighting or something like that, that's when I get angry. Q. Did you often get angry? A. I used to, yes. Q. You had a bad temper, did you, at that time? A. Yes, I guess."
14. The accused was asked whether he had seen the photos of DSE in Exhibit A4 and gave evidence that he had not seen the photographs. It was put to him that the skipping rope incident was not the only time he had hit the boys with an implement, like a strap, to which he responded, "I used my hand". He agreed the boys were very little when he was hitting them with his hand. When asked how hard he would hit them, he said, "just a hand, a slap on the hand, bum or back."
15. The accused gave evidence that he had not tried to contact John Halfpenny. He had rung the ATO to get information about when he was working there. He gave further evidence that he did not return to work after he hurt his back.
16. In relation to hosing JE, the accused gave the following evidence: "Q. You said that you remember hosing [JE] in the backyard? A. Yes. Q. How many times did you do that? A. Only two times if I recall that. Q. I suggest to you that you hosed [JE] down in the backyard a number of times; many times? A. That's not true. Q. I suggest to you that you hosed [JE] in the backyard at different times of the year: that is, cold, warm, different times of the year. What do you say about that? A. I said it was about two times I ever washed his bath(?) in the presence of his mum. Q. Did [ME] tell you not to do that? A. She did not say that one time, no. She would give the boy to me to wash the bum, so to be(?) hosed off and give the boy(?) in order to wash the bum, so I washed the bum."
17. He was then asked about his drinking: "Q. I think you said to me earlier that when you hit(?) the boys, you hadn't been drinking. Is that right? A. Yes. Q. During the time that you were with [ME], I think you agreed with Ms Ellis that you had a problem with alcohol? A. I did have a problem with alcohol. Q. Would you drink every day? A. I may have, yes, after work; come and have couple of drinks. Q. Apart from the alcohol that you said you would drink, you'd also drink spirits; is that right? A. I drank wine, yes, I did. Q. Do you know the difference between spirits and wine? A. Yes, whiskey or something, yeah? Q. Did you drink spirits? A. No, I did not."
18. The accused gave the following evidence about biting the children: "Q. This biting of the children: why did you use your teeth? A. It's always I did that. It wasn't that hard that I got to love the children and I all of them: [DE], [DSE], [JE], and my two little ones, [PS] and [AS], and also I got four children here which I do it all the time. Q. I suggest to you that you used to bite [JE] on the cheek when he sat on your lap; is that right? A. I don't remember that. Q. I suggest to you that you would bite him so hard that it would draw blood and leave a bruise? A. No, it not happen that."
19. The Crown case was put to the accused as follows: "Q. When you were living with [ME] and the children at [A], I suggest to you that you'd called [DSE] into your bedroom and say you were going to play doctors and nurses? You can agree or disagree. A. Disagree, sir. Q. I suggest to you that you got him to massage your naked bottom; your bum? A. Disagree, sir. Q. I suggest to you that at another time you called [DSE] into your room and asked him to play with your penis? A. No, I did not. Q. I suggest to you that you placed a finger or fingers into his bottom; into his bum? A. No, I did not. It makes me sick, sir. Q. I suggest to you that, whilst you were living at [A] with [ME] and the family, that on a mattress you rubbed [JE] on the upper thigh towards the groin; what do you say about that? A. No, I did not. There was no mattress, no mattress to do that. Q. I suggest to you that another incident occurred on a bed where you got him to play with your penis? A. No, I did not. Q. I suggest to you that, whilst you were living at [A] with [ME] and the family, that you sucked [DE]'s penis? A. No, I did not. Q. I suggest to you that sometime after that you placed your penis in his anus? A. No, I did not, sir. Q. I suggest to you that, apart from doing what I've suggested to you, you did other things: you sexually assaulted the three boys? A. I did not, sir, at any point in time. Not any kids I done that."
20. In re-examination, the accused gave the following evidence: "Q. You were asked about an allegation that [JE] was on a mattress and that you rub up his thighs. You started answering "Mattress? Which mattress?" Do you recollect whether in the house at [A] there was ever any mattress on the floor of any room? A. There was no mattress on the floor. There was mattress on the bed, but there was no mattress on the floor, no."

Evidence of LS

1. LS gave evidence that she was born in 1961. She was a sister of ME and was one of 15 children. She married the brother of the accused, VS. She remained married to VS for 18 years.
2. LS gave evidence that ME was living with CA in [O]. She gave further evidence that when the accused met ME, neither family wanted them to get married as they were both young. They married shortly after they met.
3. LS and her husband used to visit the family both in [M] and [A]. She remembered ME working at a "chook farm", but only for a couple of days a week.
4. LS gave evidence that the accused worked at a plastics factory as she got him a job there.
5. LS gave evidence that she had observed the accused drinking at his home lots of times and that he and ME would fight a lot with a lot of verbal abuse. She thought he slapped her once.
6. LS gave evidence that after they separated, JE went to live with his grandmother and that PS came to live with her for four months.
7. LS gave evidence that they broke up because the accused met someone else. She was asked: "Q. What do you remember about [ME] when they separated? A. She went crazy. Yeah, that's all. I mean, she was ..(not transcribable).. of course, but what can you do about? You try to do your best; you can't do anymore. … Q. When you said that she "went crazy"? … A. Yes. When [ME] was violent, [JDS] was violent."
8. LS gave evidence that ME sent DE and DSE to her brother RE's house because it was too much for ME after the separation and break-up of the family.
9. LS confirmed that after the skipping rope incident with DSE, the accused was sentenced to weekend detention.
10. LS gave further evidence that she first heard about sexual allegations being made against the accused a couple of years ago, "maybe three years ago." Approximately one year or six months after they had broken up, she had a conversation with ME. She gave the following evidence: "Q. So, to the best of your recollection, what did [ME] say to you? A. She reckons that [JDS] molested [PS] and [AS]. I didn't know nothing about the other boys. And, then three years later just past, I heard that ..(not transcribable).. that he was molested. So, I don't know what to believe."
11. LS gave evidence that ME told her, not long after she and the accused had separated, that the accused had given PS warts. She gave been told by ME that DE had made an allegation about the accused and PS. She had heard that the police were called and DOCS, but nothing ever happened. ME told her about that a few months after she and the accused had separated.
12. LS gave the following evidence: "Q. Would it be fair to say that to your observation, [JDS] had a problem with alcohol? A. Yes, he did. Q. How would you characterise his temper? A. Well, not every time that he you know, his temper was bad when he was drinking. Just sometimes, not all the time. And, no, [JDS] would just yell, and [ME] would yell. They're both yelling, fighting all the time. And, I never seen him hit the kids. I only just heard when they showed me about [DSE]'s back. Q. How would you, in your observation, describe him during the marriage as a person? A. They were fine. Q. I'm talking just him, himself, with regard to his character. A. Well, he was all right in the marriage, I thought he was, but only the drinking, that was all the problem was."
13. In cross-examination, LS gave evidence that she had last spoken to the accused a week before the trial when they discussed her giving evidence on his behalf. Prior to that, she had not spoken to him for a "long, long time". She gave further evidence that he sister, ME, "doesn't want to talk to me".
14. LS gave evidence that the first time she had been asked to remember what had happened during the accused's marriage to ME was, "a couple of weeks ago". She confirmed that when they were together, she would visit their place, "a couple of times a week".
15. Exhibit 5 was admitted as the Facts Sheet concerning the accused's arrest on 25 February 1991 on a charge of assault occasioning actual bodily harm to DSE.

The Crown address

1. The Crown accepted it bears the burden of proof and that the standard of proof is beyond reasonable doubt, and that the accused bears no onus of proof.
2. The Crown summarised the allegations which made up each of the seven counts on the Indictment. In respect of Count 6, which alleged an indecent assault upon JE, the Crown opened the Crown case relying on particulars that the accused had made JE play with the accused's penis. The Crown conceded that the evidence of JE differed from that to which the Crown opened on, namely, that JE gave evidence that the accused rubbed his inner thighs and made him touch his "privates". Whilst conceding that the evidence was different, the Crown submitted that it amounted to the same offence.
3. The Crown addressed the evidence of physical violence by the accused against each of the complainants. DSE had given evidence that his relationship with the accused was, "…terrible, I was scared, frightened". The Crown then referred to evidence given by DSE as to what was referred to as the "can incident", being thrown headfirst into the blue gravel when he was between five and six years old and the evidence of DSE that, "he always used to threaten me and beat me up all the time".
4. The Crown referred to the evidence of DSE about the skipping rope incident, in which DSE was hit all over his body. Exhibit A4 comprised six photographs showing the extent of the injuries suffered by DSE. The Crown referred to Exhibit 5, a fact sheet tendered in the accused's case which did not support the accused's explanation that DSE had left the house with the intention of burning down the school. The Crown referred to the accused's response in his ERISP interview (Ex A6), where he told the police, "I was cranky so I belted him" and further said that he didn't think he used a skipping rope.
5. In cross-examination, the accused agreed the skipping rope incident would stand out because it was very serious. The accused gave evidence in cross-examination that he pleaded guilty to assault occasioning actual bodily harm and was sentenced to six months periodic detention. The Crown submitted that the accused had used the excuse of DSE burning down the school to mitigate the assault on the complainant.
6. The Crown also referred to evidence given by DSE to support the proposition that the accused was violent towards his mother, ME. Both DE and ME had corroborated DSE's account of being struck with the skipping rope in the backyard.
7. The Crown referred to the evidence of JE that his relationship with the accused was very poor. JE said, "he was just a nightmare, mentally and physically abused." JE gave evidence that the accused would bite his cheek and that he was left with a scar on his right cheek where he could not grow hair. DE and ME had corroborated this evidence. The accused gave evidence that he would bite the children, but called it a "sweet bite". He would use his teeth but the bites were not hard. The accused gave evidence that he never drew blood or caused a bruise.
8. The Crown also referred to the evidence of JE that the accused would hose him off when he would dirty his nappy. He referred to JE's evidence that, "he would take me outside in the middle of a thunderstorm, it didn't matter what time of day or night, he would hose me off like an animal."
9. The Crown referred to evidence of DSE, DE and ME which corroborated JE's evidence. JE gave further evidence that the accused physically assaulted the children. JE said, "he used to hit us. He used to throw us around like we were rag dolls. He used to flog us, open hands, sometimes back hands."
10. The Crown referred to the evidence of JE that the accused was a "bad alcoholic". JE gave evidence that the accused would drink alcohol, lose his temper and then assault him. He remembered the biting on the cheek because it used to cause him excruciating pain. In cross-examination JE gave evidence that he was held against the wall by the throat and the accused flogged him with a strap.
11. The Crown referred to the evidence of DSE that the accused was very violent. He bashed ME and the children. DSE gave evidence that he tried to stand in front of him when he was hitting the other kids. He said, "he was just violent, very violent."
12. The Crown referred to the accused's evidence in which he agreed that he had a problem with alcohol when he lived with ME and the children. He also agreed that he would often get angry and guessed that he had a bad temper at the time. DE had given evidence that the accused had flogged him and the other kids and was violent towards his mother. ME gave evidence that the accused drank plenty of alcohol every day. The Crown submitted that the evidence of violence on the part of the accused towards the complainants was clearly established. The Crown relied upon it as context evidence and its relevance was twofold, namely, "to explain why they did not complain at the time or shortly thereafter, and why they complied with the sexual acts".
13. The Crown then referred to the evidence supporting each of the alleged sexual assaults on the complainants. The Crown first dealt with DSE. In respect of Count 3 on the Indictment, the Crown referred to the evidence of DSE when the accused was lying naked on his bed and told DSE to massage his bum, which lasted for 10 or 15 minutes.
14. The Crown then referred to the evidence in support of Count 4, that three days later the accused called DSE into the bedroom and said they were going to play a game, doctors and nurses. The accused pointed to his penis and asked DSE to pull his penis. DSE gave evidence that he pulled the accused's penis for about 10 to 15 minutes. The Crown then referred to the evidence in support of Count 5 on the Indictment, in which DSE had then said that the accused stuck his fingers in DSE's bum.
15. The Crown referred to DSE's evidence that he had not told his mother about what the accused did to him when they were living at [A] until about a year ago. When asked why, DSE said, "because I was embarrassed, ashamed, felt like it was my fault, and I just didn't want to face the fact that I was abused when I was a kid."
16. The Crown submitted there was no evidence of collusion between the three complainants in relation to the making of their statements to police or giving their evidence. In cross-examination, DSE said that he had no idea about JE or DE's allegations. In cross-examination, it was suggested to DSE that someone put into his head that he could get some money out of a claim against JDS, which he denied. The Crown submitted there was no evidence of any such claim being made.
17. The Crown submitted that DSE would be accepted as an honest and reliable witness.
18. In relation to JE, the Crown referred to the evidence in support of Count 7, an occasion when an incident occurred on a mattress on the floor. No one else was present and the accused wanted JE to sit on his lap and started rubbing his inner leg towards his groin.
19. The Crown then referred to the evidence relied on in respect of Count 6. JE gave evidence that the accused "got one of my hands to start playing with him, playing with his penis." He said it was on top of his clothes and on his skin. He referred to the evidence of JE that the accused, "grabbed his penis and made you touch his privates". The Crown also referred to JE's evidence that, "I was scared, as a child, that no one would believe me".
20. The Crown referred to the cross-examination of JE, where he had agreed that he had not given evidence in chief of any uncharged sexual acts. He agreed that he had told police that the accused had used his mouth on his penis and that this happened on numerous occasions. It was suggested to JE in cross-examination that that was not true, to which he replied, "It is true." He had also told police that the accused had penetrated him with his penis into his anus when he was between two and three years old. It was put to him that he had made those allegations up, which he denied.
21. The Crown submitted that JE obviously found it difficult to give evidence, even after being asked to refresh his memory. However, the Crown submitted that the court would find him an honest and reliable witness.
22. The Crown referred to the evidence of DE, namely, "He'd come into my room and have sexual intercourse with me. The sexual touching started about six months after he moved in." He further said, "It was daily for a while" and "touching on the penis was in my room, shower, his bedroom." The Crown noted that the accused had given evidence that he had, "fathered the children" and did a number of things, including showering them.
23. The Crown referred to the evidence relied on in support of Count 1 on the Indictment. DE had given evidence of touching of his penis which was on top of the skin. On another occasion, he was massaging the accused on his back, feet, legs and bum and then the accused, "rolled on the side and then sucked my dick. He pulled my pants down."
24. In respect of Count 2, the Crown relied on the evidence of DE that a few months after the incident in Count 1, the accused came into DE's room and rolled him on his side. DE was playing with his penis and when the accused rolled him on his side, the accused put his penis into his anus for a few minutes. DE gave evidence that it was hurting and, "I felt like I got ripped". He also said, "He sucked my penis first before he had done anything."
25. The Crown referred to DE's evidence that the accused did try later on, but it didn't happen because DE said no. The Crown referred to DE's evidence that he had told his mother that, "[JDS] hurt me". He had not spoken to his brothers about what the accused did to him before he spoke to police and the Crown submitted there was no evidence of collusion between the complainants, either before they gave their statements to police or before each of them gave evidence. In cross-examination, DE had denied making up the allegations.
26. In relation to the statement made by DE in 1995, the Crown referred to the evidence of DE in which he said everything he said in that statement was the truth. The statement could be taken into account if I found that it was supportive of the accused or assisted the accused's case, but otherwise, I would put it to one side.
27. The Crown referred to the cross-examination of DE in which it was put to him that he was looking to get some sort of compensation for making the allegations. The Crown submitted there was no evidence to support any claim made by the witness for money.
28. The Crown referred to the evidence of ME and also the evidence of the accused in respect of when and where they worked. In the Crown submission, the evidence was perhaps not as important as it may be in other circumstances, as even on the accused's own evidence, he had the opportunity to commit the offences alleged by the Crown as there were numerous occasions when he would be home alone with the children.
29. The Crown relied upon the tendency evidence to establish that the accused had a sexual interest in his three step-sons and that he acted on that sexual interest in committing the offences charged in the Indictment and also the uncharged acts. The Crown submitted I would be satisfied that the accused had the tendency as alleged, and therefore I could use that in considering whether it was more likely than not that he committed the specific offences of which he was charged.
30. The Crown referred to the accused's evidence and the Liberato direction I was to give myself in respect of that evidence. The Crown submitted that I would not accept the accused's version of the skipping rope incident. His evidence was an attempt by him to play down the assault upon DSE. On his own evidence, the accused agreed that he would often get angry and had a bad temper and a problem with alcohol. This was consistent with the evidence of the complainants. The ultimate submission of the Crown was that I would not accept the accused's denials of the sexual assaults.
31. The Crown referred to the evidence of LS, who agreed that the accused had a problem with alcohol and that his temper was bad when he had been drinking.
32. Finally, the Crown submitted that having regard to all of the evidence, the directions of law and submissions, I would return verdicts of guilty in relation to each of the seven counts on the Indictment.

The accused's address

1. Counsel for the accused submitted that the evidence of each of the complainants and their mother, in respect of the incidents on the Indictment, lacked in detail, were general in nature and often inconsistent with what they told police and other persons.
2. It was not in dispute that the accused was 18 years old when he married ME and was an alcoholic who had a short and bad temper; there was violence in the house where they lived in both [M] and [A].
3. It was submitted that the family moved to [A] in 1990. Both DE and DSE were at school and JE was three years old in 1990 when he went to live with his grandmother.
4. It was submitted that in 1990 the accused was working at a dairy. The skipping rope incident occurred at the end of 1990 following which DSE went to live with his uncle PE and then his uncle RE. It was submitted that the opportunity for the accused to be alone with one of the five children without ME around, at a time when the accused was in employment, was in fact very limited.
5. In 1991, the accused spent his weekends in gaol in periodic detention for his assault on DSE.
6. Counsel referred to the evidence of each of the three complainants. DE had given evidence that six months after the accused moved in, the touching of his penis started. Count 1 was summarised by the Crown as being an occasion when the accused put DE's penis into his mouth after DE had massaged him on his whole body. The second occasion occurred a few months later. In 1990, DE was nine years old.
7. It was submitted that the two accounts described by DE in court were very different from what he described to police. In cross-examination he agreed that he described to police one incident only, which included both Count 1 and Count 2. It was also put to DE that he had never told police that he was massaging the accused's whole body, and that the accused was completely naked before Count 1, and before the accused sucked his penis. It was submitted DE accepted that.
8. It was submitted the incident DE described to police occurred at night when the accused woke him up and took him inside the accused's bedroom. In his evidence in court, he said that Count 1 occurred during daytime. In cross-examination, he said that he didn't know whether it was daytime or night-time. Counsel submitted that it was at this point in cross-examination when DE realised that his evidence was completely inconsistent with what he told police and that caused him to walk out of the AVL suite. When asked whether there was any conversation between DE and the accused on the first occasion he was sexually abused, DE gave evidence that the accused said, "Don't tell anyone. It's our little secret". It was submitted this was the first time that the witness had said that the accused told him to keep the abuse a secret. In cross-examination, DE had also given evidence that the accused said, "I'll bash your mum or the kids. I'll hurt them." It was submitted this was a convenient attempt to fill gaps or inconsistencies in his evidence. The accused submitted that DE was making up his evidence as he went.
9. Counsel referred to the second incident and DE's evidence that the accused did not say anything. It was submitted that this evidence was inconsistent with DE fearing for his life because his fear was very short lived. On the next occasion, two weeks after this second incident, DE found the courage to say no and stand his ground. After that, there was no evidence that the accused ever touched him again. It was submitted that this evidence was completely at odds with the evidence of DE that he was scared and had been threatened. It was also at odds with the evidence which depicted the accused as a violent and relentless monster. Counsel asked rhetorically, "if the accused had such a sexual interest in DE, and if the accused put such a fear in DE, how can it be that the accused just accept to comply with a five, six, seven, eight, or nine year old boy telling him to stop?" (sic).
10. Counsel submitted that DE had fabricated his evidence, whether intentionally or unintentionally and that his evidence was a total fantasy. It was submitted that DE had been telling lies and making up stories for years, and that he probably started to believe them. The court would accept that he had been traumatised by the physical and mental trauma he had experienced and domestic violence that he had witnessed, but not by any sexual abuse. He had also given evidence that he had been bashed by his uncle RE.
11. Counsel referred to the statement of DE made to police at Orange in 1995 when he was 13 years old. He had no recollection of going to the police station or who he went with. He also gave evidence that he was using a lot of drugs when he was 13. It was submitted that the statement he made in 1995 was a pure fabrication.
12. Counsel referred to DE's evidence that three or four months after ME married the accused, the accused started doing things to AS. It was submitted this was impossible because they were married in 1989 and AS was born two years later in 1991. In his 1995 statement, DE said, "after Mum met [JDS], he started doing things to all kids", which were the exact same words that ME had used when she spoke to Dr McDonald, and as they appear in the undated letter of Dr McDonald, which is Exhibit 1.8.
13. Counsel referred to the evidence of each of the complainants that no one had ever disclosed anything to them and none knew about the alleged sexual assault on the other children. However, in 1995, DE had told police that the accused started doing things to all the kids. It was submitted that the court would ask itself whether someone else had put a seed in DE's head or whether DE just made it up because he used to hate the accused for what the accused did to his mother, or for the physical violence that he was subjected to.
14. In his statement to police in 1995, DE described an incident where it was dark outside. DE had looked through the window and seen the accused abusing AS whilst holding a lighter with one hand. It was submitted that this evidence was pure fantasy and fabrication. Further, in May 2021, Detective Cole had asked DE questions about the allegations contained in the 1995 statement. That statement became Exhibit 2 and contained a completely different version from the statement he gave to police in 1995. DE's answer was, "that was another occasion", meaning a different incident. It was submitted DE was making up his evidence.
15. Counsel referred to the evidence that ME had possession of DE's 1995 statement but did not know whether or when it was given to her.
16. Counsel made the following submission: "[ME], she said that she became aware of the allegations made by [DE] about [JDS] and [AS] when [DE] was still living in [O]. So, from the year of [DE] living in [O], she was aware of those allegations. And, hence, the statement she made to Dr McDonald in this undated letter between 1995 and 97, that [DE] has recently disclosed [JDS] do things to all the kids. And, the Court will wonder who else has seen this document? Who else has seen this 1995 statement? Who else has seen this letter from Dr McDonald?"
17. Counsel submitted that DE had the opportunity to tell his uncle RE about the sexual abuse by the accused. DE chose to report sexual abuse by the accused in 2018 when he was in gaol and had become eligible for parole. In his evidence in court, he said that was the first time he had ever told anyone about the sexual abuse. However, the notes taken by the psychologist read that DE told her that he had disclosed to his mother when he was 18 years old. It was submitted that even when talking to his psychologist, DE lied. ME gave evidence that he never told her when he was 18.
18. In that report to the psychologist (Ex 4), DE had stated that he had been raped anally twice by the accused. In his evidence in court and in his statement to police in 2019, he said the accused penetrated him anally once.
19. It was further submitted that the circumstances leading to ME obtaining a copy of the report of Ms Leahy were concerning. In the statement prepared by Ms Perkins on behalf of DSE (Ex 1.7), there was a reference to DSE being told by his mother that DE had disclosed sexual abuse to a psychologist in gaol. This was described by counsel as, "very messy" and it was submitted that it raised issues of suggestion, contamination and possibly false memories.
20. In respect of the evidence given by DSE of physical violence, it was submitted the accused had denied all of the incidents but for the skipping rope incident, of which the accused had always admitted his guilt. ME had told Dr McDonald that the accused admitted his guilt and had apologised (Ex 1.11). It was submitted the fact sheet (Ex 5) was consistent with the evidence given by the accused in court and in his ERISP interview.
21. In that interview, the accused could not remember a skipping rope, however, in a context where it was the first time in 30 years that he had been asked about this particular incident, counsel submitted: "It's not like the accused deny that he ever hit [DSE]. He actually specifically remember that on an occasion, he belted [DSE], and that was the word he used, 'belted'. Whether he remembered that it was the skipping rope, yes or no, there's no evidence of his state of mind at the time he did it and whether he actually did remember that it was a skipping rope" (sic)
22. Counsel submitted that JDS had not downplayed or minimised or denied what he did to DSE, but he said that it happened once. Counsel submitted further that there was no reference in the facts sheet (Ex 5) to DSE threatening to burn down the school and the facts were consistent with what the accused had said, namely, that DSE had run away from home and that the accused had "lost it". The submission was made on behalf of the accused that he never denied that he had used violence against the children.
23. In relation to two incidents described by DSE, it was put to DSE that he had never told police the accused was naked when he was told by the accused that they were going to play doctors and nurses. This was Count 3 on the Indictment and DSE had said that his baby sister, AS, was there. He had described massaging with both hands the naked bottom of the accused which lasted 10 to 15 minutes. The incident ended when they heard ME at the gate and DSE gave evidence that the accused said, "Don't tell anyone or I'll flog you, little shit".
24. It was submitted DSE said the incident occurred before the skipping incident and therefore Count 3 happened before December 1990. However, he told police that his baby sister AS, who was born in 1991, was present during the massage. It was submitted the court would find that this was impossible and that DSE had made up this incident.
25. It was submitted the court would accept the accused's evidence that he did on occasion ask the children to walk on his back. It was submitted the court would accept that that is as far as it would go in terms of massaging the accused.
26. When DSE gave evidence that it may have been his baby brother PS present at the time of that incident, it was submitted this was another inconsistency which showed the entire incident was a fabrication.
27. Counsel referred to the evidence relating to Count 4 or 5 which happened two or three days after the alleged massage. DSE again described the accused calling him into his bedroom and saying the same thing, namely, "We are going to play doctors and nurses". DSE also described his baby sister AS in the bedroom.
28. DSE's evidence that the accused was naked in that incident was very similar to the evidence he had given about Count 3. DSE's evidence about the pulling of the accused's penis for 10 or 15 minutes and the accused putting his fingers into his bottom, described an incident that was so similar to the first incident that it would raise some red flags. It was the fear of forgetting details, which DSE had fabricated, which made him give exactly the same details for the two incidents.
29. Counsel referred to DSE's evidence that the sexual activity happened for weeks and months until he went to live with his uncle. It was submitted that it was surprising that he never said whether the accused ejaculated.
30. Counsel referred to the first disclosure by DSE to Ms Perkins, a psychologist, in 2018. He only disclosed a massage on the bum of the accused. At the time he was seeing Ms Perkins, he was using marijuana and alcohol on a daily basis. Ms Perkins had drafted his statement dated 12 November 2018 and three days after signing that statement he spoke to Detective Edmonds. It was submitted the evidence was that DSE had no recollection of handing Detective Edmonds the documents, being Exhibits 1.7 to 1.12. It was submitted that would indicate the state of mind of DSE when he attended the police and when he signed the statement on 12 November. At that time, DSE gave evidence that he was suffering from psychiatric issues and was on anti-psychotic medication. It was submitted this would raise a red flag for the court.
31. It was submitted that the statement made on 12 November 2018 (Ex 1.7), made it clear that DSE had been told about DE disclosing sexual abuse to a psychologist in gaol.
32. It was submitted that the statement (Ex 1.7) included information which must have been fed to Ms Perkins by someone else, namely, ME, for example the date of birth of the accused. ME had kept documents over the years relating to doctors, DOCS, court orders and other documents relating to allegations made against the accused. It was submitted the court would not accept her evidence that in the children's files she kept only photographs and school reports. It was submitted that DSE had seen a document in which DE alleged that he had been "tampered in the bum" by the accused.
33. It was submitted, the clear picture was that DSE never told Ms Perkins about the accused putting his finger in DSE's anus, "but he turned up to the police station with the statement that says that that is what [DE] had disclosed and that is what [DSE] had told police." It was submitted that this could not be a coincidence.
34. Counsel referred to the note in Exhibit 1.10 which DSE took to the police station. It referred to PS suffering a sexually transmitted disease as a child. That information could only have been provided by ME. ME had, however, denied giving that particular document to police because she said that it had nothing to do with DSE. ME was lying about that in her evidence.
35. Counsel referred to DSE being aware that DE had been abused prior to him going to the police but said he did not know the details. He told police, "similar things happened to DE, JE and PS".
36. Counsel further referred to DSE having flashbacks which was the same word used by JE. This would raise concerns about the accuracy of the witness' memory and the reliability of his account. Counsel repeated her submission there is a real risk of suggestion and/or contamination, "which led to some false memory and/or a fabrication of memory, and the reliability of his account would be questioned."
37. Counsel referred to JE's evidence in which he stated the accused would bite his cheek whenever JE refused to masturbate him. He gave no evidence about that, which should have been a significant memory. Counsel submitted there was nothing sexual associated with the biting of the cheek. It was submitted to be perceived as being violent and traumatising for the witness, and it was admitted by the accused. However, the accused had given evidence that he would never do that to hurt them and that it was a sweet sort of playful show of affection.
38. Counsel characterised JE's evidence of being hosed after dirtying his nappy as "an unpleasant memory". The court would not accept his evidence that this occurred up until he was seven years of age. On his evidence, it occurred when he was around three years of age. It was submitted that his evidence to the contrary was a distortion of the truth and the court would accept that the hosing was done in the presence of ME and it was done for no other purpose than to clean JE. It was submitted there was no evidence to show this was done to intentionally torture or traumatise the children.
39. Counsel submitted that in respect of Count 6, there was absolutely no evidence of the accused ever touching his penis and the evidence of JE in respect of acts of fellatio and ejaculation which the Crown had opened on was not forthcoming. Nor was there any evidence of penetration by the three year old JE's penis into the accused's anus. It was submitted that if as a two or three year old boy he had been penetrated by the accused, that would have been a most traumatising memory and experience. The reason why he could not recall it was because he had made up and fabricated his evidence. His failure to do so was enough to question his credibility and the reliability of his whole testimony.
40. Counsel submitted that the court would look at the surrounding circumstances and "the family demons": "the fact that those children were fostered out; that they witnessed and be subjected to physical violence; the ongoing allegations made by [ME] to different persons (allegations also made by her own mother, the grandmother of the complainant); the notifications which were made to DOCS even after the separation between [ME] and the accused; and all the other allegations to Dr McDonald, even after the break up and all this, we submit, your Honour, are the demons that these complainants had to grow up with. When they refer to having demons in their heads, those are the demons that they've been carrying all their life: the suspicion, the rumours, and all those documents that their mother has kept for years and probably fed to the complainants. Your Honour would keep in mind the personal characteristics of each of those complainants who have all used drugs and all alcohol; who have had and still have mental health issues and your Honour would have serious concern about their mental health at the time of making the allegations. Your Honour would remember that [DE] was hoping to be released on parole when he said that he was raped twice anally to a gaol psychologist. [DSE], as I said, remembered events which were chronologically impossible, with [AS] being present when she was not even born, and he recalled two incidents and he gave different versions to police and to the Court. As to [JE], your Honour would remember that he said that he was told by his grandmother when he was younger that he was sexually abused."
41. It was submitted that Count 7 related to an allegation that the accused rubbed JE's penis. It was submitted that there was no evidence of that particular incident happening on a bed and the court should return a verdict of not guilty. The accused was entitled to particulars that identify the acts said to have provided the foundation of the charge. The Crown had not borne its onus of proof in respect of Count 7.
42. It was submitted that Count 6 was similar. The witness could not remember when asked about an incident on a bed. After refreshing his memory from his statement, JE described an incident where the accused rubbed the top of his thighs near the groin area and the accused used JE's hand to touch his penis. It was submitted the evidence did not support the particulars for that particular count as opened by the Crown and there was no evidence before the court to find that offence proved. It was further submitted that when given the opportunity to do so, JE had given no evidence of any other sexual activity by the accused.
43. It was submitted that JE had never told his mother ME, however his mother had pressured him to open up and the court might wonder why she would pressure him into making a statement to the police. It was submitted that it was possible that ME or his grandmother had put into JE's head from a young age that the accused had sexually abused him.
44. It was submitted that Detective Cole had contacted ME and that ME had told him that he should talk to JE, because he might have things to tell the police. It was submitted it was possible there had been some contamination over the years and that JE had come to believe something happened to him when he was younger. This was a red flag for the court. Counsel also referred to the reports and notification made by ME about the accused after they separated in 1993 (Ex 1.21). JE had also given evidence that he had flashbacks. He had started using speed and marijuana at 12 years of age and had used ice over a period of 15 years from when he was 19 years old.
45. It was submitted that as a result of finding the accused not guilty on Count 6 and 7, he should be given the full benefit of the Markuleski direction in respect of Counts 1 to 5.
46. Counsel submitted that ME was not an honest witness and it was submitted that she was probably partly responsible for some of the allegations made and the seed being planted in the complainants' heads from a young age. Counsel submitted that ME and the complainants have resented the accused as a result of the breakdown of the marriage and it was submitted that ME's suspicion over the years became allegations which turned into "suggested, contaminated and false memories or flashbacks" as two of the complainants described.
47. Counsel submitted that the accused consistently denied the allegations. It was submitted the fact that he was violent and/or an alcoholic did not make him a child molester. The fact that he was drinking alcohol was relevant because there was no suggestion in the evidence that any of the sexual abuse occurred when the accused was intoxicated. None of the complainants ever said he smelled of alcohol when the alleged abuse occurred.
48. Counsel submitted that the accused's evidence was largely supported by LS, the sister of ME. She visited the family home and confirmed the accused's employment. She reported verbal abuse between both ME and the accused and saw the accused hitting ME once. She never saw any violence by the accused on the children. She was aware of the bruising on DSE as a result of the skipping rope incident but she never saw any bruises on JE's cheek or bruising on any of the other children.
49. The accused had agreed that he was alone with the children on numerous occasions. It was submitted that he was an honest witness and despite having a bad temper and a drinking problem, those matters did not make him a sexual predator.
50. Counsel submitted the evidence of each of the complainants was contaminated by what they were told by their mother, to the effect that they were sexually abused. It was submitted that ultimately their recollection was not only poor but also diluted by their mental health issues, their drug and alcohol issues and also the self-bias created by "documents and rumours about [JDS] over the years". It was submitted the court would definitely have a reasonable doubt and find the accused not guilty on every single count.

Directions of law

1. Section 133 of the Criminal Procedure Act 1986 provides as follows: "(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
2. The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved each of the offences beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charges beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.
3. The Crown case depends on the court accepting the reliability of the evidence of each of the complainants to prove the guilt of the accused beyond reasonable doubt. The complainants' evidence must be found to be both honest and reliable. Before the court can convict the accused of any count on the Indictment, the evidence of each of the complainants must be examined very carefully in order for the court to be satisfied that it can safely act upon that evidence to the high standard required in a criminal trial.
4. I give myself the following directions when considering all of the evidence. 1. Direction - Complaint evidence In this trial the Crown relies upon evidence of what the complainants said to other people about the alleged assaults, that such an assault did occur. The evidence the Crown relies upon falls into three categories. They are: 1 The complaint made by DE to Roslyn Leahy. 2 The complaint made by DSE to Meg Perkins and his mother. 3 The complaint made by JE to Detective Cole. I do not intend to go over all of that evidence. It is for me to decide whether the complaints were made and what their contents were. If I find that the complaints were made substantially to the effect that each witness gave evidence of, then I can use evidence of what was said in the complaint as some evidence that such an assault did occur. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against a person, namely, the accused. A jury is entitled to find that the complaints were made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegations are less likely to have been fabricated by each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion in this particular case and so treat the complaints as evidence of the alleged sexual assaults by the accused in addition to the evidence that has been given about it in this courtroom. If I do use it as some evidence of the sexual assaults, that are the subject of the charges, then what weight I give it is again a matter for me. Whether I do use the evidence of complaints in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that the Complainant raised the allegations against the accused at the time and in the manner that he did, would lead me to accept the evidence given by the Complainant in the witness box. In other words, it makes the evidence of the Complainant more believable if he had not raised the allegations as he did. Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should ask myself is, "Did the Complainant act in the way I would expect him to act if he had been assaulted as he said he was?" "Is what he did the sort of conduct that I would expect of persons who have been assaulted in that way?" If I think that the Complainant has done what I would expect someone in his position to do, that may support the Crown case because I may find that there is a consistency between the complainant's conduct and the allegations that he made against the accused JDS. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted, as he described, then that may indicate that the allegations are false. I will bear in mind when considering this issue that there may be good reasons why the Complainant did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegations must be false. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion. 1. Direction - Delay in complaint I have heard evidence that DE did not complain about what he claims that the accused did to him, until August 2018, DSE did not complain until November 2018 and JE made his first complaint to police in December 2019. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. However, the delay in making a complaint is a matter that I may take into account in assessing the credibility of the complainants' evidence as to what they 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 I should regard this as indicating that the complainants' evidence is false. This is a matter which I should consider. 1. Direction - Delay in complaint and forensic disadvantage to the accused There is a warning I must give myself relating to the issue of delay in any complaint being made by DE, DSE or JE. It is most important that I appreciate fully the effects of delay in complaint on the ability of the accused to defend himself by testing prosecution evidence of bringing forward evidence in his own case to establish a reasonable doubt about his guilt. In this regard, I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution, or in adducing his own evidence in his own case: i. The vividness of recollection of some of the complainants is entirely confined to the alleged events per se, with a marked lack of evidentiary content. Vividness of recollection extends to recollection of words recalled or other things said at the time of the event. ii. The significant effluxion of time before any complaint was made to police iii. The fact that records which may have been available to corroborate or establish facts, e.g. employment or school records, are no longer available. iv. The fact that witnesses generally have to rely on imperfect memories of events that occurred some thirty years ago. These difficulties 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 evidence relied on by the Crown cannot be fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that each of the complainants' memory for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. Each of the complainants' inability to recall precise details of the circumstances surrounding the alleged incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict them. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which would have been used by his counsel in cross-examination of each of the complainants. Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and have been able to bring forward evidence to support him. Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. As a result, I warn myself that before I can convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny, I must bear in mind the matters I have just been speaking about - the fact that the complainants' evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support his defence. 1. Direction - Pursuant to s 165(1)(c) of the Evidence Act 1995 I direct myself that the evidence of the complainants, DE, DSE and JE, may be unreliable for the following reasons:

1. DE gave evidence that he had been abusing drugs for a long period of time following the alleged sexual abuse, including at the time DE spoke to police in 2019;
2. The alleged sexual abuse occurred approximately 30 years ago and was not reported to police until three years ago;
3. DE first gave an account of sexual abuse to a counsellor in gaol prior to his release on parole;
4. DSE first gave an account of sexual abuse to a counsellor several months later;
5. DSE, at the time he spoke to Meg Perkins, gave evidence he was using marijuana and alcohol. At that time, he had complex PTSD and suffered from depression. When he gave evidence, he was suffering from complex PTSD, anxiety, depression and paranoia and was heavily medicated including on anti-psychotics.
6. Inconsistencies in the accounts each of the complainants gave to police and their evidence.
7. JE used speed and marijuana at least from 11 years of age. He gave evidence he was an ice addict for over 15 years from age 19 years. He had been clean of drugs at the time he spoke to police in 2019. He then relapsed but gave evidence that he had been clean of drugs for about 18 months, nearly two years, at the time he gave evidence.
8. JE gave evidence that when he was around 9 or 10 years old, his grandmother had told him he was sexually abused as a child and physically and emotionally abused by the accused. This is a direction that the law requires me to give and I am to consider it along with all of the other directions I have given in this trial, particularly the direction that before I can convict the accused on any one or more of the Counts in the Indictment I need to be satisfied of the accused's guilt on that charge beyond reasonable doubt. I should scrutinise the evidence of the complainants with care and approach their evidence with considerable caution before I act upon it. 1. Direction - Delay in prosecution This is a warning I must give myself relating to the issue of delay in prosecution. It is most important that I fully appreciate the effects of delay of almost 30 years in prosecuting this matter on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt. In this regard I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution, or in adducing evidence in his own case: i. First, the effluxion of such a long period of time has caused some deterioration in the memory of witnesses as acknowledged by them in their evidence. ii. The fact that records which may have been available to corroborate or establish facts, e.g. employment or school records, are no longer available. These difficulties 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 evidence relied on by the Crown cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that each of the complainants would have a better memory for details. This would have enabled their evidence to be checked in relation to those details against independent sources so as to verify or disprove it. The complainants' inability to recall precise details of the circumstances surrounding the incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances that may contradict them. Had the accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainants. Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and had been able to bring forward evidence to support his case. Because the accused has been put into this situation of significant disadvantage, he had been prejudiced in the conduct of his defence. As a result, I warn myself that before I can convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny, I must bear in mind the matters I have just been speaking about - the fact that the complainants' evidence has not been tested to the extent that it otherwise could have been, and the inability of the accused to bring forward evidence to challenge it, or to support his defence. 1. Markuleski Direction - Multiple counts Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome. If I were to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. If I have a reasonable doubt about the complainant's credibility in relation to any one count, I might believe it difficult to see how the evidence of the complainant could be accepted in relation to the other count. 1. Direction - Differences in complainants' accounts pursuant to s 293A of the Criminal Procedure Act 1986 If I find there are inconsistencies in the complainants' accounts that may be relevant to their truthfulness or reliability, I am directed that experience shows: (1) People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. (2) Trauma may affect people differently, including affecting how they recall events. (3) It is common for there to be differences of accounts in a sexual offence, and (4) Both truthful and untruthful accounts of a sexual offence may contain differences. It is up to me as the tribunal of fact to decide whether or not any differences in the complainants' accounts are important in assessing the complainants' truthfulness and reliability. 1. Warning - Remote Facilities pursuant to s 294B(7) of the Criminal Procedure Act 1986 It is standard procedure for the evidence from witnesses, such as the complainants in this case, to be given by way of audio visual link from remote facilities. I am not to draw any inference adverse to the accused person, or give the evidence any greater or lesser weight because of the use of the remote facilities and the audio visual link technology. I may have seen on the remote facility that there is a person with the witness. That person is usually referred to as a support person. I may have also observed a court officer/sheriff. I am not to draw any inference adverse to the accused person as a result of the presence of the support person or the court officer/sheriff in the remote facility. They are merely there to assist the court. It is standard procedure, and I must not draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the presence of the support person. 1. Direction - Tendency evidence The accused is charged only with the offences stated in the Indictment. I have before me evidence that the Crown relies upon as directly establishing that he committed those offences. However, I also have evidence that the Crown relies upon to show that the accused had a particular state of mind, namely a sexual interest in DE, DSE and JE, and a tendency to act in a particular way, namely, acting on that sexual interest by touching and/or penetrating DE, DSE and JE in the way they allege. The Crown says that I will be satisfied that the accused had a sexual interest in DE, DSE and JE on the basis of what I shall refer to as acts of a sexual nature committed against DE, DSE and JE. The Crown says that because the accused had this sexual interest and was willing to act upon it I would find it more likely that he committed the offences charged in the Indictment. The evidence upon which the Crown relies to prove that the accused had a sexual interest in the complainants is the evidence of each of the complainants, DE, DSE and JE, as to the sexual acts or activity that took place between each of the complainants and the accused. Before I can use the evidence of these acts in the way the Crown asks me to use it I must make two findings. I must make these findings beyond reasonable doubt. The first finding is that one or more of those acts occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask myself whether I find a particular act relied upon actually took place. If I am not satisfied any of the acts relied on by the Crown occurred, then there is no basis upon which the tendency could be inferred and I must put aside any suggestion that the accused had the sexual interest in DE, DSE and JE as alleged by the Crown and decide the case on rest of the evidence. If I do find one or more of those acts occurred, then I go on to consider whether, from the act or acts that I have found occurred, I can infer that the accused had a sexual interest in the DE, DSE and JE and that he was willing to act upon it. If I cannot draw that inference, then again I must put aside any suggestion that the accused had a sexual interest in DE, DSE and JE. So, if having found one or more of the acts attributed to the accused to have occurred and from the act/s I infer or conclude that the accused had the sexual interest in any of the complainants and was willing to act upon that interest, I may use that fact in determining whether the accused committed the offences charged against DE, DSE and JE. However it is essential I consider in relation to each charge whether the accused had that particular state of mind, namely a sexual interest in DE, DSE and JE and acted on that sexual interest in the way they allege. My process of reasoning will differ depending on which count I am considering. Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way the accused's tendency to have a sexual interest in DE, DSE and JE and to act on that sexual interest in the way they allege, may be used. Ultimately, I must decide whether the specific offences for which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, provided I am satisfied it has been established. It will also include other evidence in the trial including context evidence relating to physical abuse alleged by the complainants that the accused meted out to them. When considering whether a charge has been proved, I will have to decide whether the Crown has proved the essential elements of that charge. I direct myself that the tendency evidence cannot be used other than in the way I have described, and I cannot substitute the conduct of the accused on some other occasion or occasions for the conduct that is relied upon by the Crown to prove each particular charge. I further direct myself to be careful to avoid allowing any emotional response or prejudice to distract myself from a calm and objective assessment of the issues in the trial. 1. Direction - Context evidence Before I can convict the accused in respect of any charge on the Indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which each charge relates as alleged by the complainants. In addition to the evidence led by the Crown specifically on the counts in the Indictment, the Crown has led evidence of other acts of alleged misconduct by the accused, towards the complainants. I shall, for the sake of convenience, refer to this evidence as evidence of "other acts". The evidence of "other acts" is as follows: (i) The evidence about the accused assaulting DSE with a skipping rope; (ii) The evidence about the accused "belting" DE, DSE and JE with a belt and belt strap; (iii) The evidence about the accused punching DE, DSE and JE with a closed fist; (iv) The evidence about the accused slapping DE, DSE and JE with an open hand; (v) The evidence about the accused biting JE on the cheek, drawing blood and bruising his cheek; (vi) The evidence that the accused used a hose on multiple occasions to JE when he had pooed in his pants; (vii) The evidence of JE that the accused gave JE oral sex on numerous occasions and that the accused penetrated JE's anus with his penis; (viii) The evidence given by JE that he recalled telling police that the oral sex occurred on numerous occasions, which he had not referred to in his evidence in chief, as a result of flashbacks he had on a regular basis; (ix) The evidence of DE that the accused had come into his room and had sexual intercourse with him; that the touching of his penis first occurred six months after the accused moved in; that the touching continued on a daily basis and occurred in the shower, his bedroom or "just around"; (x) The evidence of DSE that the pulling of the accused's penis and the accused putting his finger in DSE's anus went on, after the first occasion, for "weeks, months, whenever no one was at home". It is important that I explain the relevance of this evidence of "other acts". It is admitted solely for the purpose of placing the evidence of the complainant towards proof of the charges into what the Crown says is a realistic and intelligible context. By context I mean, the history of the conduct of the accused towards the complainants as they allege it took place. Without the evidence of those "other acts", the Crown says, I may wonder, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstances to link them in any way. If I had not heard about the evidence of "other acts", I may have thought that the complainants' evidence was less credible because it was less understandable. So the evidence is placed before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges on the Indictment. If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainants allege was an ongoing history of the accused's conduct towards them, then what might appear to be a curious feature of the complainants' evidence - that they did not complain about what was done to them on a particular occasion - would disappear. It is for that reason that the law permits a complainant to give an account of the alleged history between himself and an accused person in addition to the evidence given in support of the charge on the Indictment. It is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. The complainants' accounts of other acts by the accused allows them to more naturally and intelligibly explain their account of what allegedly took place. The Crown can therefore lead evidence of "other acts" of a physical nature between the accused and the complainants to place the particular charges into the context of the complainants' account of the whole of the alleged conduct of the accused. However, I must give myself some important warnings with regard to the use of this evidence of "other acts". First, I must not use this evidence of "other acts" as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainants made other allegations against him. This is not the reason that the Crown placed the evidence before me. The evidence has a very limited purpose, as I have explained it, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt. Secondly, I must not substitute the evidence of the "other acts" for the evidence of the specific allegations contained in the charges on the Indictment. The Crown is not charging a course of misconduct by the accused, but has charged particular allegations arising in what the complainants say, was a course of sexual misconduct. I am concerned with the particular and precise allegations in the charges in Counts 1 to 7 on the Indictment. I must not reason that, just because the accused may have done something wrong to the complainants on some other or other occasion, he must have done so on the occasions alleged in the Indictment. I cannot punish the accused for "other acts" attributed to him by finding the accused guilty of the charges in the Indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law. 1. Liberato Direction - Re: the accused's evidence The accused relies on an account of events in the evidence he gave. The accused in his ERISP interview denies that any sexual activity took place between him and the three complainants and denies each and every allegation contained in the charges on the Indictment. It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows from this: First, if I believe the accused's evidence, obviously I must acquit. Secondly, if I have some difficulty accepting the accused's evidence, but think it might be true, then I must acquit. Thirdly, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charge which it brings against the accused, and there is no onus on the accused to prove that he is not guilty. 1. Direction - Good character The Accused relies on evidence from Detective Cole to establish that he is a person of good character in a particular respect. That evidence was to the effect that JDS is a person of good character namely: 1 That he has no previous convictions for sexual offending. The law provides that a Jury is entitled to take evidence of an accused's good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that JDS is a person of good character in that respect is relevant to the likelihood of him having committed the offences alleged. I can take into account JDS' good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for me. Further, I can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, either in giving evidence before me or in giving an account of the events in answer to questions asked by the Police. Whether I reason in that way is a matter for me to determine. None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that JDS is a person of good character in these two respects is completely a matter for me, but I should take that fact into account in the way I have indicated to myself. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time. 1. Direction - Expert witness evidence In this case, Dr Andrew McDonald has been called as expert witness as the complainants' paediatrician. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion within his or her particular area of expertise. Other witnesses may speak only as to the facts, that is, what they saw or heard and are not permitted to express their opinions. Of course, the value of any expert opinion is very much dependant on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where the opinion is based on that witness's specialised knowledge. Expert evidence is admitted to provide me with scientific information relating to treatment of the children of the family and an opinion on that particular topic was within Dr McDonald's expertise. It is likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining whether a sexual assault took place by the accused on the complainants. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of Dr McDonald I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common-sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. 1. Direction - Witness not called by the prosecution Meg Perkins was a psychologist or counsellor to whom DSE first disclosed inappropriate sexual activity by the accused. That person has not been called by the Crown to give evidence. I can take the fact that there was no evidence from Ms Meg Perkins into account when I decide whether the Crown has proved the guilt of the accused. There was evidence from Detective Cole that police did not obtain a statement from Ms Perkins because of privilege arising as a result of sexual assault communications. Notwithstanding that, the accused contends that the absence of the witness caused a forensic disadvantage to the accused as follows:

Assessment of witnesses generally

1. My function as the tribunal of fact involves deciding what evidence I accept as proved and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of what evidence I accept as established by a particular witness' account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in the witness' recall of events or a witness' inability to accurately describe what it is he or she saw or heard.
2. In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, equally, it is open to me to accept part of the evidence and reject other parts of that witness' evidence. In making that assessment, I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

Assessment of witnesses in the Crown case

1. My assessment of the witnesses who gave evidence at trial must acknowledge that they are giving evidence about events that occurred more than 30 years ago, with the attendant impact on memory and powers of recollection that must necessarily flow from the effluxion of such a long period of time.
2. Each of the three complainants gave evidence in a straightforward fashion. Each had been exposed to domestic violence and alcohol abuse from a very early age and each had been subjected to violence directly at the hands of the accused at very young ages, when they were under his authority as their stepfather. That each at times became emotional in recounting their past lives was entirely understandable.
3. The context evidence is important evidence in this case, in that it provides a prism through which the background to the allegations brought by the complainants may be readily understood. It is not in dispute that the accused was an alcoholic and was physically violent towards the three complainants. I am careful not to substitute this context evidence as evidence of the specific allegations contained in the charges on the Indictment, however, it provides a realistic background against which the individual allegations brought by the complainants may be assessed. An example is the evidence concerning the assault by the accused with a skipping rope upon DSE, resulting in the accused's conviction on a charge of assault occasioning actual bodily harm and being sentenced by way of a term of imprisonment to be served by periodic detention for six months. The photographs in Exhibit A4 amply demonstrate the extent of the violence inflicted by the accused on DSE when he was a young child. It is further corroborated by the report of Dr McDonald dated 7 December 1990 referred to above (Ex 1.11).
4. DE first disclosed his allegations of sexual abuse by the accused to a prison psychologist in August 2018. There is no evidence to support the contention put on behalf of the accused that DE did this so that his application for parole would be treated favourably. I find that he gave his evidence in a straightforward and somewhat laconic fashion and was not prone to embellishment. That he became emotional during cross-examination is not unusual in a case of this type, and did not in my view undermine his evidence or its probative value. Also, his evidence concerning his consumption of prohibited drugs and interactions with the criminal justice system are not unusual matters for the court to assess in a case of this type. Likewise, since the Royal Commission into Institutional Responses to Child Sexual Abuse, the courts have considerable experience in both the delay in complaints being made of child sexual abuse and the profound harm caused by such abuse, including drug and alcohol abuse.
5. DSE also gave his evidence in a straightforward and unembellished fashion. Whilst it is clear that at the time he made his first disclosure to Ms Perkins he must have had knowledge that DE had made a disclosure a few months prior, I accept that he did not have any knowledge of the detail of DE's disclosure.
6. JE was a more labile witness than the other two complainants and his evidence clearly did not come up to proof, given the way in which the Crown opened the case against the accused involving JE. The fact that he was also reliant upon flashbacks rather than independent memories of events must be taken into account, together with the fact that he was, at the time of the alleged offending, very young, namely three years or younger. Whilst I accept that the time of making a statement to police he knew that both DE and DSE had made statements, as Detective Cole told him that, I find that he did not know the details of the allegations brought by them against the accused.
7. Whilst it is clear that the complainants' mother, ME, became aware of the disclosure made by DE to the prison psychologist, and provided Ms Perkins with some information about that to assist her in counselling DSE, I find that ME was doing her best to assist the court and was both an honest and reliable witness. I am not satisfied that she was aware of the details of each of the three complainants, nor did she inform them of the content of the individual allegations the others made against the accused.

Assessment of witnesses in the accused's case

1. The accused denied the allegations both in his ERISP and in his evidence. In his ERISP, he denied using a skipping rope to assault DSE and his explanation was that after 30 years he could not remember whether he used a belt or a skipping rope. He denied ever punching the complainants when they were children, but did discipline them with an open hand. He also gave evidence that he would bite the young children on the cheek, but it was done out of love ("a sweet bite") and he did not ever bite JE to the point of drawing blood. He denied having any sexual interest in young boys. In cross-examination he admitted to often getting angry and to having a bad temper. In respect of hosing JE down when he was a baby, the accused gave evidence that ME would give the child to him in order to wash him and that was the only purpose of the hosing.
2. I am satisfied that the accused has experienced a significant forensic disadvantage in being confronted with allegations of criminal offending approximately 30 years after the events were said to have occurred. I have taken into account that disadvantage as outlined in the directions above, which include the following considerations: 1. The delay has meant that the accused has lost the opportunity of making inquiries and exploring the alleged circumstances close to the time of the alleged offences, which may have uncovered additional evidence, throwing doubt on the allegations made against him; 2. Had the trial taken place closer to 1991, the complainants might have had better recall of the incidents of sexual misconduct and the context in which they took place; 3. The effluxion of 30 years has meant that the witnesses' recall of the events have inevitably been impacted upon by other life events; 4. There may have been records available including employment records and school records upon which to test the complainants' evidence.
3. LS gave evidence that was honest and largely reliable. She confirmed that the accused was in employment at relevant times and also corroborated other evidence that the accused was a regular drinker of alcohol and had a volatile relationship with ME. I accept her evidence that the accused's temper was bad when he was drinking and that the marriage ended when he met another woman.

Findings of fact

1. In addition to the agreed facts in Ex. A1 set out in [67] above, I make the following findings of fact: 1. At all relevant times when the accused was married to ME, he had a problem with alcohol and drank alcohol on a daily basis. 2. At all relevant times the accused was quick to anger and had a bad temper. 3. The accused was often physically violent towards ME, and towards the complainants DE, DSE and JE. 4. I accept each of the complainants' evidence as to the physical violence meted out to them. In the case of DSE, that included being belted numerous times with a skipping rope so as to cause bruising to the legs and back as depicted in the photos in Ex A4, when DSE was six years of age. In the case of JE, it included being hosed off after dirtying his nappy, in the backyard when he was an infant aged two or three years. In the case of DE, it included corporal punishment and at times being struck when he stepped in to protect either ME or the other children. 5. I find that each of the complainants were exposed during the relevant times to domestic violence directed by the accused to their mother ME. 6. I find that although both the accused and ME worked in 1990 and 1991, it was probable that ME worked on a part-time basis, particularly when she became pregnant with AS. 7. I find there was ample opportunity for the accused to be left alone with the children, either individually or together, during the period May 1989 to December 1991. 8. As set out above, and consistent with the agreed facts, I find that ME became aware of the disclosure by DE to a prison psychologist in August 2018 of sexual abuse by the accused. I further find that ME was not aware of the detail of the abuse but forwarded the information known to her to Ms Perkins, the counsellor of DSE. At the time of the making of the statement dated 12 November 2018, DSE was aware DE had made allegations of a sexual nature about the accused, but not the details of those allegations. 9. On all of the evidence, I am not satisfied that there was any collusion between the three complainants in the making of their separate allegations to the police about the conduct of the accused. There could be no finding of contamination of the evidence of each of the complainants. Rather, to the extent that the allegations may contain similarities, that is more likely to reflect on the modus operandi of the accused and his conduct towards the three stepsons, rather than any collusion between them. 10. I am also not satisfied that each of the complainants were motivated to make allegations against the accused so as to ground claims for compensation. Each of the complainants denied this was the case and there was no evidence whatsoever upon which the claim could be made out. 11. Nor am I satisfied that DE disclosed the allegations of sexual abuse to a prison psychologist in order to have his parole approved. There is no evidence on which that claim is based.

Determination

1. In determining whether the Crown has proved beyond reasonable doubt each of the elements of each of the seven counts on the Indictment, I note the following definitions: 1. Act of indecency An act of indecency is one which right-minded persons would consider to be contrary to community standards of decency. Where the act has unequivocal sexual connotations, it is unnecessary for the Prosecution to prove the purpose of providing sexual gratification, the purpose of the indecent act, such as being artistic or political, is relevant for a consideration as to whether it was in fact indecent although not decisive of that question. 1. Assault Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. In this case, in respect of each allegation, the assault is constituted by touching. 1. Incite Is defined by the Macquarie Dictionary as: "To urge on; stimulate or prompt to action." 1. Sexual intercourse "Sexual Intercourse" means, in law: 1. (a) Sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by: 1. Any part of the body of another person … The Crown does not have to prove that full penetration occurred or that the sexual intercourse was for the accused's sexual gratification.
2. I have given careful consideration to the evidence of the accused, both in his ERISP interview (Ex A6) and at trial. I find that in his ERISP, the accused minimised his violence towards the three complainants. His evidence that he hit DSE and his denial that he ever used a skipping rope on one of the children was clearly false. Even with the effluxion of thirty years, the accused must have known that he had been convicted of a serious criminal offence, assault occasioning actual bodily harm, and sentenced to a term of imprisonment to be served by weekend detention, in respect of it.
3. The accused also minimised the violence he directed to the other children. He denied hitting them regularly and said when he did hit them it was "a smack on the bum". He further minimised his consumption of alcohol and level of intoxication and denied hitting the children either when he was intoxicated or using implements such as "belts, cords and, on an occasion, a skipping rope." He also minimised his punishment of the children in his evidence, confining it to times when they were fighting each other and he had to discipline them, or, when they did not do their homework. He further denied ever using a strap or belt to hit them.
4. I further find that the accused tailored some of his evidence to meet the Crown case, for example, his evidence that he would ask the children to massage his back by asking them to walk on his back. Another example was his evidence minimising the effect of biting the children on the cheek by describing it as a "sweet bite". I further find that the accused minimised the occasions upon which he used a hose on JE to clean him when he had dirtied his nappy.
5. These matters cast considerable doubt over the honesty and reliability of the accused's denials of each of the allegations in the Indictment. Having regard to the totality of the evidence, I do not accept the accused's bare denials of each of the allegations in respect of each count on the Indictment. In accordance with the direction that I have given myself above, I therefore put the evidence of the accused to one side and, proceed to determine on the whole of the evidence whether the Crown has proved each of the elements of each count on the Indictment beyond reasonable doubt.
6. In respect of Count 1, I accept the evidence of DE as honest and reliable that on an occasion more than six months after the accused moved into the family home, DE was taken to the bedroom of the accused and when after giving the accused a massage, the accused pulled DE's pants down and sucked on his penis. It was not in dispute that DE was between seven and eleven years of age, nor was it in dispute that as the accused was his step-father, DE was a person under the authority of the accused.
7. I am therefore comfortably satisfied beyond reasonable doubt that each of the four elements of Count 1 has been established beyond reasonable doubt by the Crown.
8. In respect of Count 2, I also accept the evidence of DE that a few months after the incident in Count 1, the accused came into DE's bedroom, rolled him on his side and inserted his erect penis into DE's anus. I am comfortably satisfied that each of the four elements of Count 2 on the Indictment have been proved by the Crown beyond reasonable doubt. There was no issue that DE was between seven and eleven years of age and that he was a person under the authority of the accused, who was his step-father.
9. Having found the offences in Count 1 and Count 2 established beyond reasonable doubt, I infer that the accused had a sexual interest in DE and was willing to act upon that interest. I am therefore able to take that tendency into account in considering whether the accused had that particular state of mind, namely, a sexual interest in DE, DSE and JE in determining whether the accused committed any of the acts on the Indictment. The fact that the accused had that tendency is not enough to prove any of the remaining charges of itself. It may, however, make it more likely that the accused conducted himself in the way the Crown alleges in respect of each of the subsequent charges on the Indictment. I will bear this in mind in determining whether each of the following counts on the Indictment have been proved beyond reasonable doubt by the Crown.
10. In respect of Count 3 on the Indictment, I accept the evidence of DSE as honest and reliable that on an occasion within the relevant period, the accused was lying on his bed when he told DSE to massage his naked buttocks and DSE did so for 10 to 15 minutes. I am satisfied that the accused incited DSE to commit an act of indecency. Again, there was no issue that DSE was under the authority of the accused who was his step-father. I am therefore satisfied the elements of the offence in Count 3 have all been established beyond reasonable doubt.
11. I am satisfied that on a subsequent occasion, the accused called DSE into his bedroom and told him they were going to play a game of doctors and nurses. On that occasion, the accused pointed towards his penis and asked DSE to pull his penis. DSE did that for about 10 or 15 minutes. I am comfortably satisfied that each of the elements of Count 4 have been established beyond reasonable doubt and what occurred was an act of indecency on DSE.
12. I accept the evidence of DSE that during the time-frame of the assault in Count 4, the accused inserted his finger in the anus of DSE. I am satisfied that each of the elements of Count 5 have been proved beyond reasonable doubt and that the placement of the accused's finger in the anus of DSE constituted sexual intercourse.
13. I am fortified in finding the elements of each of the offences in Counts 3, 4 and 5 established by the evidence that the accused had a tendency to have a sexual interest in each of the complainants and was prepared to act on that tendency. I also accept the evidence of DSE that because the accused had perpetrated a number of acts of violence on him, he did what he was told by the accused out of fear of further physical violence directed towards him.
14. Whilst there were some differences in the accounts given by both DE and DSE to the police and in their evidence in court, for example, in the case of DSE whether the baby present in the room was AS or PS, those differences were not so significant so as to either impugn the complainants' credit or cast doubt on the veracity of the substantive evidence they gave in respect of each count. Similarly, experience has demonstrated that complaints made by persons of historical child sexual assaults are often made many years after the event and that the complainants often express feelings of shame and embarrassment about what has happened to them. This does not mean that allegations are necessarily falsified or fantasised about. Rather, each complaint must be assessed on the totality of the evidence and in the context of the particular complainant's life.
15. The context evidence is important here, in that the violence meted out to the complainants does explain why they did not complain earlier in time, and also why, at the time of the offences, they complied with the demands of the accused.
16. Having regard to the totality of the evidence in respect of Counts 1 to 5, I am not satisfied that there is any reasonable conclusion open on the whole of the facts that is inconsistent with the conclusion that each of the offences has been proved beyond reasonable doubt. Having considered and weighed all of the evidence, directions of law and submissions made on behalf of the parties, I find there is no inference consistent with the innocence of the accused reasonably open to be drawn on that evidence in respect of those counts. I therefore find that the Crown has proved its case against the accused beyond reasonable doubt in respect of Counts 1 to 5 on the Indictment and there will be verdicts of Guilty in respect of each of those counts.
17. The evidence the Crown relied on in respect of Counts 6 and 7 involved JE, who at the time of the alleged sexual assaults, was three years or younger. The evidence the Crown relied upon in respect of Count 7 on the Indictment was that JE recalled being on a mattress when the accused rubbed on the top of his thigh, the inner thigh, in towards his groin, "sort of thing". When asked about detail of the incident, JE could not remember how long he rubbed near the groin, what clothes he had on if anything, where the mattress was, or the time of year. Notwithstanding the tendency evidence referred to above, and my findings in relation thereto, and the context evidence concerning violence perpetrated on JE from time to time as a very small child, the Crown has not proved each of the elements of Count 7 beyond reasonable doubt and the accused will be found not guilty on that count.
18. JE was unable to give evidence of any other incident without first refreshing his memory from his statement dated 10 March 2020. Having done so, JE gave evidence that on an occasion when he was on a bed, he remembered the accused rubbing his thigh. He indicated the top of his right leg, near the groin, and gave evidence that the accused got one of JE's hands to start playing with his penis. JE then played with his penis on top of the clothing and underneath, and at times, it was skin on skin. However, on this occasion, he could not recall whether it was on skin.
19. The Crown opened its case on the basis that Count 6 was an occasion when JE was sitting on his bed when the accused came into his room. The accused then sat next to JE and used one of his hands to rub JE's penis.
20. At no time thereafter did JE tell his mother about the alleged sexual assaults. He told his ex-wife in around 2016 and gave evidence that he was reluctant to discuss it with his present partner. He agreed in cross-examination that he had been traumatised as a child by virtue of the physical violence that he had both witnessed and been a victim of. JE gave evidence that he had a difficult childhood.
21. JE further gave evidence that he had suffered a severe head injury when he was 21 years old and that he had no memory of certain sexual acts, but that he had flashbacks. He also gave evidence that he started using prohibited drugs at a very young age and had overdosed on speed at the age of 11. When he was 19, he started using ice, which he used for over 15 years. JE gave further evidence that his grandmother had told him, when she was alive, that he had been sexually abused as a child, and physically and emotionally abused. She did not, however, say who he was abused by. Having regard to all of those matters, together with the Markuleski direction I have given myself in respect of the unreliability of JE's evidence in respect of Count 7, I find that the Crown has not established each of the elements of Count 6 beyond reasonable doubt and there will be a verdict of not guilty in respect of Counts 6 and 7 on the Indictment.
22. I do not accept the submission made on behalf of the accused that having found the evidence of JE unreliable, in accordance with the Markuleski direction set out above, I would have to consider how that conclusion affected my consideration of Counts 1 to 5, as those counts concerned different complainants, namely, DE and DSE - see Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290.

Orders

1. I hereby order as follows: 1. In respect of the offence in Count 1, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS, there will be a verdict of Guilty. 2. In respect of Count 2, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS, there will be a verdict of Guilty. 3. In respect of Count 3, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS, there will be a verdict of Guilty. 4. In respect of Count 4, that JDS, Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between 5 and 7 years of age, being a person under the authority of JDS, there will be a verdict of Guilty. 5. In respect of Count 5, that JDS, between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DSE, a child then under the age of 10 years, namely between 5 and 7 years of age, there will be a verdict of Guilty. 6. In respect of Count 6, that JDS, between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS, there will be a verdict of Not Guilty. 7. In respect of Count 7, that JDS, between 4 May 1989 and 10 April 1992, at [M] or [A] in the State of New South Wales, assaulted JE and at the time of the assault, committed an act of indecency on JE, a person then under the age of 16 years, namely between 2 and 5 years of age, being a person under the authority of JDS, there will be a verdict of Not Guilty.

Amendments 29 October 2021 - Removed potential identifiers of complainants 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: 29 October 2021