R v Jones

R v Jones - [2021] NSWDC 591 - NSWDC 2021 case summary — Zoe

[3]

A special hearing

A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. If it is appropriate a court can, as here, modify its processes to facilitate the effective participation by the defendant in the special hearing.
The fact that the defendant has been found unfit to be tried for an offence is presumed not to be an impediment to the person's representation. Mr Jones is represented by Mr Khan, Counsel and Ms Boehm, solicitor.
A special hearing must not prejudice the defendant any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include: 1. To ensure that justice is done, as best it can be in the circumstances, to the defendant person and the prosecution, and; 2. To give a defendant person an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.
At a special hearing the defendant is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which a defendant may enter a plea of either guilty or not guilty.
I must reach my verdict on what the Act describes as the limited evidence available. The verdicts open to me given the way this matter has proceeded are: 1. not guilty of the offence charged; 2. that on the limited evidence available, the defendant committed the offence charged: s 59 (1)(a) and (c).
If I find Mr Jones not guilty then that will be the end of the matter. If however, I find that on the limited evidence available, he did commit the offence or offences charged, it will be my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what term would have been appropriate. Other non-custodial options are technically available.
If I nominate a limiting term the Mental Health Review Tribunal will continue to review him and make appropriate recommendations. My duty at present is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that Mr Jones committed an offence charged.

[6]

Elements

The counts in the Indictment are said to have occurred between 31 December 1980 and 31 December 1983. On 14 July 1981 s 76 Crimes Act was repealed and replaced with s 61 E(1) Crimes Act. Both sections had the same elements and the same maximum penalty. Section 80AF Crimes Act provides that in matters such as this "a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred."
During the course of the trial Mr Noll, Solicitor Advocate for the Director of Public Prosecutions, sought and was given my leave to amend the dates for Counts 4, 5 and 6 from 31 July 1981 to 1 July 1981. Mr Khan did not object,
There is no dispute that if an incident occurred, it occurred at Bulli or Corrimal within the time period alleged. The age of the complainants at the relevant times is not in dispute. If the acts are proved to have occurred the age related element of the offence will be established. No issue about consent arises as a child under the age of 16 cannot consent to an indecent assault.
Accordingly, before Mr Jones can be found guilty of counts alleging act of indecency toward a child I must be satisfied beyond reasonable doubt of each element but in particular that: 1. He assaulted a complainant; 2. The assault was indecent.
"Assault" includes, relevantly, the deliberate touching or the application of force to the complainant, without her consent and without lawful excuse. No issue about consent or lawful excuse arise from the facts of this case. The assault can involve the same action as the act of indecency.
"Indecent' means contrary to the standards of ordinary and respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. It is not in dispute that if the incidents occurred as alleged by the prosecution they would be contrary to the standards prevailing in our community.

[8]

Tendency

The prosecution, by notice, asks that evidence given by the respective complainants be cross-admissible in the trial relating to them and the other. Ordinarily where counts relating to multiple complainants are heard together the evidence in relation to one is not able to be used and is inadmissible in the case of the other. And, I would have to take great care not to allow a finding in relation to one complainant to influence my determination in relation to the other by a process of false reasoning that - because a defendant did A he must have done B.
An exception to that general rule applies if after proper notice is given the prosecution allege a tendency in Mr Jones to act in a particular way or have a particular state of mind. And that tendency and state of mind was manifest when each of the counts occurred. They are: 1. A tendency to have sexual intercourse or attempt sexual intercourse with female children at his residence when he was alone with them. 2. A tendency to indecently assault female children at his residence when he was alone with them. 3. A state of mind to have sexual interest in female children who visit his residence.
The defence accepted that in all the circumstances such evidence is cross admissible. Their response however is that it would not assist in my determination of the issues.
Where there is no direct evidence about either the alleged tendency or state of mind on a specific occasion, I can have regard to all the other evidence in the trial to reason by way of inference or deduction. If there are other reasonable explanations available these must be considered. Further, even if I accept one or more allegations it would be wrong to reason that just because Mr Jones has done some things he was more likely to have committed the offences charged. It would be completely wrong to reason that, because Mr Jones has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences charged.
The Prosecution say that I will be satisfied Mr Jones had this sexual interest and acted on it as alleged making it more likely that he committed each of the offences charged in the indictment.
However, if nothing happened there can be no evidence capable of showing the state of mind alleged or any alleged tendency. The suggestion is distraction, an allegation, nothing more. I don't work backwards and presume a tendency. Rather, I go to the evidence, examine it carefully or scrutinise it carefully. Before I can use the evidence of other proved counts in the way the Prosecution asks I must make two findings. 1. That one or more of those acts actually occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon actually took place. 2. If I do find one or more of those acts alleged as a count occurred, then I must go on to consider whether, from the act or acts I have found occurred I can then infer Mr Jones had the tendency and state of mind alleged. If I cannot draw that inference, then I must put aside any suggestion that Mr Jones had a sexual interest in any or all of the complainants or a tendency to act on that interest.
That an inference could be drawn is not the test - if there are other alternatives or inferences reasonably available, inferences that are consistent with Mr Jones being innocent - then the prosecution has not proved its point. The evidence must not be used in any other way.

[9]

Assessing the Evidence

The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial, as it involves drawing inferences from proved facts. I may not, as a matter of law, find the defendant committed an offence unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than he did commit the offence.
In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments.
There is always a danger that when attempting to recall events from many years ago that the recall is not of the events but of a later "memory" of the event: a memory that can be influenced by many factors, including what was said by others or other experiences. This is particularly so if one is trying to recall events from childhood when at the time you had insufficient knowledge or experience to know what was happening or why. In such situations a witness can honestly believe what occurred is correct but be completely wrong in that belief.
I note that for most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
I must ask myself whether the evidence discloses a real risk of contamination or concoction such that it gives rise to a doubt or deprives a complainant's evidence of probative value or renders it inherently implausible or unbeleivable. That said, it is far from unusual, as occurred here, for those who have been called as prosecution or defence witness to discuss events such as this and compare notes; particularly when trying to work out a chronology of events.

[53]

RA is Mr Jones' sister. She lived with HA at the Bulli house and has been in contact with her brother all his life, including in 2021. He lived in Bulli for approximately a year. He moved out in January or February probably (1982).
She said at Bulli there was only one bed in the spare room; her old bed from her parent's home. Mr Jones worked basically on night shift, but he was working a lot of 'doublers.' He would leave at approximately 9pm and he would get in while she and her husband were having breakfast in the morning.
During the May school holidays the three girls ended up staying approximately a week. They also stayed in October school holidays for a couple of nights. They slept in the spare bedroom. The two elder girls slept on blow-up mattresses and the youngest slept on the single bed.
RA only visited Mr Jones at the Corrimal unit a few times. He was only there for six months before moving to Balgownie.
She said she found out about the allegations in 2018 when Mr Jones said that the police would probably be contacting her, but they already had. Since then they've had contact two or three times a year
Leave was given to Mr Noll to cross-examine RA: s 38 Evidence Act.
She said she didn't remember if he'd received any workers compo or had time off to recover from the injury: TT page 285.
She said from the main part of the Bulli house to the toilet laundry there was a step down to a small little corridor, and then the step back up into the area. She said they didn't ever have a fold up bed
When it was put to her that JW actually lived with Mr Jones in the second bedroom she replied "I don't believe that, I don't know that. That is not true:" TT page 287 & 288.
She said she knew this because the girls were all at the same primary school in Figtree: "I can't see how she could possibly have got to school and back from school if she was living - she, she did not live in our home": TT 289.
She said Mr Jones had injured his back but it was much later, possibly about 1987, before he moved up to near Forster: TT page 292.

[56]

Prosecution Submissions

Mr Noll took me carefully through the chronology of events. Nothing in it, he said, contradicted what was said by either BW or JW. So far as BW was concerned he said I must take into account it was the recollection of a child who was too young to fully understand what was being done to her but what she said occurred in the spare room at Bulli was clear and concise and was of the sort of events that would stick in a child's memory. While there were some differences in her accounts of what happened on each occasion they were inconsequential.
He said the evidence of the call between AM and Mr Jones and BW's intervention as she listened in, led to her disclosure and that she was reluctant then, and even later, to go to the police should not diminish the power of her evidence.
Turning to JW's account he said that the absence of records from schools and hospitals was not a surprise but what records there were did not contradict her account of where she was and that she did live with her father at both Bulli and Corrimal from 1981 to 1983. She said whatever Mr Jones' work routine he had opportunity to do what he did before he went off to night shift or when he was on 'compo." He said HA's memory may have been vague but his memory JW was there must be preferred to that of his ex-wife Mr Jones' sister. RA's evidence JW never lived there, he said, could not be accepted. The weight of evidence was that JW moved to Corrimal from Bulli.
Given that there were so many instances over the 2 years or so JW and Mr Jones lived together and given they were so similar minor inconsistencies in accounts were, he said, to be expected. This is a natural product of any recollection process but each incident the subject of a count was described with particularity.
Mr Noll took me through each allegation. He said support for JW's account came from both her sister BW and her mother AM. There was un-contradicted evidence a complaint was made just before Mr Jones' marriage in June 1985. All the evidence confirmed there was a phone call between AM and Mr Jones.
That there were variations in each account, he said, showed there had not been collusion between the witnesses. Rather, the evidence showed each had distinct memories from their individual perspective. But there were some telling passages. For example; JW said she told her mother Mr Jones had treated her 'like a wife" and AM said JW told she treated her father "in the way a wife does a husband."
JW, he said, could be accepted as a witness of truth. She was clear in her recollections; and she made appropriate concession during cross-examination. She acknowledged her memory problems and the impact of her stroke but throughout, he said, the crux of each allegation was consistently recounted and any minor discrepancies did not diminish the power of her evidence.
He said the key aspect of AM's evidence was she remembered 3 emotional incidents; JW's complaint, the admission by Mr Jones during the May 1985 phone call and BW's complaint. Each memory, he said, supported her daughter's accounts.
Mr Noll conceded there was evidence supporting Mr Jones' good character. He said that apart from RA each gave an account that did not contradict anything said by the complainants. RA, he said, could not be accepted. She had tried to "water down" anything that might lend support to the allegations.
He said if I accepted a complainant her evidence would show the tendency alleged and that I would not accept there had been concoction; rather where witnesses had spoken to others this was to help put together the correct chorology of events as they recalled them from over 30 years ago.

[57]

Defence Submissions

Mr Khan took me immediately to the conundrum posed by this hearing. I start with a man of good character, who is presumed to be innocent. Although a special hearing, even on the limited evidence available, he said, there is ample evidence to conclude that Mr Jones has always denied any offending against his daughters. He said I can make no allowance for the passage of time when it came to assessing whether the prosecution had proved a count beyond reasonable doubt. Given all the cautions I had to give myself I was left with one simple fact - memories fade - and a faded memory did not have the probative weight that an account of a recent event did.
He said, of everyone, Mr Jones had suffered the most prejudice because of a delay that was not his fault. If the allegations had been pursued in 1985. He now has dementia. He has no access to any work, school, hospital or doctors records that could contradict a complainant's account and support his own.
He asked; how can he test the recollection by each complainant when they were imprecise in time and detail; how could anyone be sure of their honesty and reliability?
So far as BW was concerned he urged me to reject her accounts. He said her demeanour as a witness indicated she was "switched on' to the possibility she may be contradicted. But when caught out or challenged she feigned nerves. BW he said was confused, inconsistent, defensive, confrontational and argumentative: she was committed to supporting JW's version: TT page 59.
Mr Khan submitted that BW's evidence was a "Frankenstein's monster" made up of things heard and discussed but not witnessed or directly experienced by BW. Inconstancies included how long and when she was at Bulli, whether she was in High School, which bed she was in whether or not there was crying and whether it was muffled, were all unable to be excused. As BW said herself, she "contradicted herself": TT page 33. Her evidence, he said, was replete with inventions and pivots. It was at times obviously false. He gave as an example how she described the incident when JW cut her heel. He said I would conclude she was not there.
Another example was her fight with JW. She was not told anything by JW, rather she assumed and invented. Her different accounts of the phone call and her interruption showed that in evidence she added an admission by Mr Jones that was not in her statement - another example, he said, of fabrication.
So far as JW was concerned he drew my attention to her admissions she had memory problems and suggested she had downplayed the impact of her stroke. He pointed to some problems with her memory of dates and said some of her responses to questioning appeared calculated. He said while I might as the prosecution suggest think some differences were relatively minor I must look at their cumulative impact.
He took me through inconsistencies and gaps in JW's account of each incident and the 16th birthday allegation. So far Count 9, the first incident at Corrimal and Count 10, the oral sex allegation, was concerned he said the differences in accounts between her statement and her evidence was "striking." The differences, he said, were critical and indicative of concoction. He submitted that my doubts about the accuracy and reliability of the evidence on that count should be taken into account when I consider JW's evidence as a whole.
He took me to the absence of material, which, even making allowances for the time that had elapsed, would cause me to doubt JW's account. There are no records of JW going to Bulli hospital or to a local doctor for a sprained ankle or a cut heel. We do not know when she started or left to High School after she left the Wollongong High school in mid-1981. There is no record she ever lived at Bulli or Corrimal.
So far as the 16th birthday incident was concerned he said all the evidence, including what was said by SAJ, indicated Mr Jones was not living in Bellambi at that time and was already living with then his fiancée SAJ.
In conclusion he returned to what he said were the "slips" made by BW, JW and AM. He said they had been talking to each other and each was familiar with what the other planned to say. Ultimately, he said it had been too long, there were too many unresolvable issues and given the unreliability, inaccuracy and unbelievability of each key prosecution witness I must be left with reasonable doubts and accordingly I would give the defendant the benefit of them.

[58]

Prejudice

Mr Jones unfitness has prejudiced his defence. The procedures adopted in the special hearing are designed to minimise but not eliminate that prejudice. The fact of prejudice must be factored into my assessment of the evidence. But it does not relieve me of the task of determining the issues on the basis of the evidence before the court. Other than drawing available inferences from proved facts I cannot speculate about material that is not before the court as evidence.
Delay has caused prejudice to both parties. That prejudice must be addressed in different ways. Fundamental to that difference is that the prosecution has at all times the onus of proof and that the standard of proof so far as the elements of an offence are concerned is beyond reasonable doubt.
Here, I understand and appreciate that a complainant who has been indecently assaulted by their father may be reluctant to come forward and complain. I understand that a child will respond to threats and fears generated by what was said at the time and designed to ensure their silence. Confusion, fear, lack of knowledge and understanding can all influence a decision to come forward or not. A child's reasoning process is not the same as that of a mature adult but an adult can also experience similar emotions. The fact of delay does not necessarily indicate that the allegation that the offence was committed is false. Delay of itself does not undermine a complainant's credibility: s294 Criminal Procedure Act 1986.
Further, both truthful and untruthful accounts of a sexual offence may contain differences. Delay will increase the risk differences may emerge. Few, if any of us, have perfect recall. An event is rarely recalled and recounted in the same way each time a memory is accessed. People may not remember all the details of an event or may not describe an event in the same way each time it is recounted or remembered. It is relatively common for there to be differences in accounts of a sexual offence: s 293A Criminal Procedure Act 1986. And, over time the risk of difference is accentuated. Differences in accounts of the same incident do not necessarily mean an allegation is false. They can be entirely understandable.
Similarly, where one event amongst many similar events is recalled the possibility that some facts may be misremembered and melded together does not necessarily indicate an event did not occur. But, and it is important but, where the event is said to found a criminal charge that must be proved beyond reasonable doubt an inability to recall and recount with accuracy what happened during that event may be critical to any assessment of whether the heavy onus placed on the prosecution has been met.

[59]

Missing Documents

Delay can mean that material that might have been available to support or corroborate a witness' account is no longer available. There are here, understandable reasons, given the lapse of time, why records that might support the prosecution case or that raised by the defence cannot be found or produced. Over time records are lost or destroyed. It is notorious that paper records are not necessarily kept.
Corroboration of a complainant is not a requirement and its absence cannot be used to undermine a complainant's account: ss 294AA Criminal Procedure Act 1986; ss 164 & 165 Evidence Act 1995. The absence of corroboration does not mean that a child complainant's account should be undervalued. Nor does the fact a witness was a child mean they are any less reliable as a witness than an adult: s165A Evidence Act.
But the absence of evidence should not be protective of the interests of the prosecution. Further, the absence of evidence must be taken into account when I consider the capacity of the defendant to test the prosecution's case because of extraordinary delay: see [43].
It is not in dispute that given a delay of over 35 years potential evidence has been lost or is otherwise unavailable and every witness's recall must have been affected. It is not in dispute that the delay has meant the defendant now has a cognitive impairment that did not exit at a time when the allegations are said to have occurred. And, that that cognitive impairment has impacted on his capacity to recall or rebut what others now recall of events from 1981 to 1985. That delay has created a significant forensic disadvantage for the defendant. I need to take into account the nature of that disadvantage when considering the evidence before me: TO v R [2017] NSWCCA 12 at [167]; s 165 B Evidence Act applies W v R [2014] NSWCCA 110; s133 Criminal Procedure Act.
I cannot speculate about what a document might have contained. I remind myself where the onus of proof lies at all times. I direct myself that I should not be diverted from a proper assessment of the evidence actually before me and its strength. Where a document that might have existed or is not found I simply to do not speculate or guess about its possible contents. But the absence of a record does not, as Mr Khan suggested, mean that I must conclude it did not exist and use its absence to undermine the probative value of a prosecution witnesses' evidence: evidence of absence is not absence of evidence.
Two examples arise here. JW said she went to hospital in Bulli for treatment of a sprained ankle and was given crutches. No records exist in the name JW or her birth name. This is not all surprising given the time that has elapsed. It does not mean I conclude she did not go to the hospital and thus invented that aspect of her story. A conclusion I may have reached if the incident had occurred in 2020.
Both JW and AM say they reported the indecent assault to a policeman at Corrimal Police Station in the 1980's or 1990's. No record of that report was found on the police COPS system. The COPS system started in the 1990's and not all earlier records were transferred to it. Sadly, it is notorious that even today not all reports to police of indecent assault are followed up. And contemporaneous notes are not always made, even today: For a recent example see De Belin v R; Sinclair v R [2020] NSWDC 487 at [240] & [241].
The defendant has no obligation to prove anything and must be given the benefit of any reasonable doubt held by the judge. His inability to obtain documents or other evidence that might support a defence or enable him to challenge a complainant's account must be considered and given weight. They are considerations relevant to my evaluation of the evidence.

[63]

BW's account

BW gave careful evidence in chief and showed no obvious malice toward the defendant. She was polite but often gave unresponsive answers apparently guessing what was to be asked of her in future questions. She needed to be reminded to answer a question in cross-examination and not volunteer information or opinion or argue the point with Mr Khan. Overall she was not an impressive witness.
I remind myself demeanour is only one and in many instances the least important, factor in assessing a witness' believability, particularly one who is being accused of lying and concoction. Aggression, nerves and taking an augmentative stance in such circumstances is far from unusual; whether truthful evidence is being given or not. That said, I could not help but note that some of some BW's responses appeared contrived; particularly when discrepancies in her account were made obvious. There are discrepancies in BW's chronology of disclosure that make it hard to not to have some doubts about her account.
She said she had told her mother of her father's abuse after the fight with JW. She also said she called out during the interrupted phone call and called Mr Jones a liar when he said he had not abused the other girls. Her mother made no mention of the earlier complaint and said during the call BW having heard Mr Jones admit to touching JW interrupted and called out, "You f'ing bastard." Only later after they had discussed what Mr Jones was supposed to have done to JW did BW say "cause he also abused me too."
But is her account of the cut heel incident that makes it hard to accept her beyond reasonable doubt. She gave a convincing account of what happened and who was there. But no other witness has her attending the Corrimal address and most importantly JW does not put her there during this incident. If she can invent that account and recount it in an apparently plausible way her other testimony on other matters would need to be carefully scrutinised.
Close scrutiny of the evidence given for each of counts 1 to 3 reveals discrepancies and additions apparently on the spur of the moment. While I understand she may have mixed up in which order events occurred and which bed an incident happened, her evidence about crying and the muffling of her cries gave the impression she was making things up in anticipation of criticism or challenge. While corroboration is not required nothing BW said was corroborated in any substantial way apart from the fact she spent some nights at Bulli and listened into and interrupted a phone call
While BW's evidence, if accepted, would establish each element of Counts 1 to 3 the other evidence considered in the light of the directions I must give rather than removing those doubts, accentuate them. While it is possible each event occurred I could not be satisfied to the very high standard required that Counts 1 to 3 have been proved beyond reasonable doubt.

[64]

JW's account

JW appeared to be a thoughtful and considered witness. She was not overly emotional. She gave me the impression when recounting the incidents that found each count that she was doing her best as a mature adult to explain how she reacted to incidents that occurred when she was a child; a child without any true understanding of what or why Mr Jones was doing things she said he did to her. There was no obvious exaggeration or sign of fabrication in her accounts; which if accepted would prove each element of Counts 4 to 12. She made appropriate concessions in cross-examination and was candid about the impact of her stroke on her short term memory.
JW's accounts were consistent. While I understand the particular criticisms Mr Khan directed at her evidence about Counts 9 and 10 those discrepancies were explained. They did not cause me to think she was inventing or fabricating her account. But there were troubling aspects in her response to cross-examination, particularly when challenged over detail.
While she was adamant the events on her 16th birthday occurred at Balgownie that the defendant may not have lived at his friends address any more does not mean he did not have access to the premises. True it is, as Mr Khan suggests, that Mr Jones took a risk of discovery each time he did something to his daughter. That factor while it must be considered is far from decisive. Every act of child sexual abuse involves a risk of discovery or later disclosure. Some abusers are arrogant enough to presume they will not get caught and if the matter is revealed that their denials will be believed over the testimony of a child.
JW gave convincing evidence of each individual instance among a pattern of regular behaviour. There were no apparent embellishments or attempts to portray her father in a worse light than that revealed. However, little other detail was provided that might have enabled the accuracy and reliability of her accounts to be tested. When challenged on such details her reactions were defensive.
Mr Jones had an opportunity to commit each offence against JW. Sadly, in my experience, as lawyer and judge, that a father would abuse a daughter who was available to him in the manner alleged is not incomprehensible - such incidents occur rarely but regularly.
The accounts leading up to the disclosure to her mother, the way it was expressed and her reluctance to discuss the incidents in any detail or take it to police do not diminish the power of her accounts. Her accounts of each allegation were believable. That conclusion does not however mean I must find an offence proved Mr Jones committed the offence. I have to consider a number of other important factors.
Although this is a special hearing and it must be determined on the limited evidence available the defendant is entitled to a presumption of innocence and a requirement that each count be proved beyond reasonable doubt before a finding an offence is proved can be made. There was almost no evidence to lend verisimilitude to the accounts given by JW and the life she lived with her father. While there are many reasons why a child or adult may delay in coming forward, and threats at the time are a very real reason, no reason was given for the long delay after she became an adult. I accept it may have been difficult for her to accuse her father and commit to Court proceedings but JW waited many years to bring the matter to the attention of police. I accept she made one attempt when she went to Corrimal Police Station when she was 19 or 20 but it was not followed up and she did not come forward again until 2018.
Mr Jones denied the account to his wife when the matter was first raised and subsequently. Although AM said he made an admission to her, of itself that account after so long could not be decisive. People often hear what they want to hear; AM said she heard an admission and SAJ said she heard denials SAJ appeared to be a truthful witness and she and others vouch for the good character of Mr Jones as a gentle man who, they say. would not have done the things alleged against him. SAJ was seeing Mr Jones from 1983. She was not mentioned by any key prosecution witness. AM did not mention speaking to her before the phone call when it is said admissions were made.
There is evidence that after the disclosure in 1985 JW, BW and AM discussed what JW alleged. But there was no evidence she gave any detail of what she said occurred to anyone until 2018. By then her father was not in any position to intimidate or threaten her but nor was he in a position to respond fully (if at all) to the allegations. Her mother and sister were also aware of the more recent disclosure to police and all attended and to make statements, giving rise to the risk that they have added each other's accounts.
The long delay has meant that Mr Jones is not in a position to challenge to any significant degree what was alleged by reference to work, school or hospital records and other documents or the recent recall of witnesses, including those called at trial by both the prosecution and the defence. For example; there is simply no evidence to say when he and JW lived in Corrimal or when she returned to live with her mother. And, three differing accounts of where that was.
In 2021 after a delay of over 38 to 40 years there were few contemporary materials produced and few objectively established facts. Rather, I had to assess the subjective accounts of multiple witnesses.
Long delay can lead to memories being lost. Once lost, memories can be reconstructed. If reconstructed their reliability may suffer. Human memory is a very fallible thing. Inventions can occur and be remembered as real - an example here is BW's account of the cut heel incident.
Events can be elided into others. It is often impossible to know whether you are remembering what happened or your memory of the remembering an event. That is why, while it is not necessary or required, a trier of facts looks to other evidence and accounts or indeed anything that might lend support to a complainant's account.
Here apart from opportunity, because Mr Jones and JW lived together; that support comes from JW's complaint to her mother "it was like a duties of a married woman." That statement is ambiguous and contained no detail. Nor were there any details of how JW and Mr Jones interacted otherwise during their time at Bulli or Corrimal. I note he was at time working both as a coalminer and a doorman at a club and that she was a teenage school girl.
There is also the alleged admission but while it is possible it did occur I cannot place much weight on it given the different account given by SAJ and AM and BW.
It appears JW gave no details of any incident until her police statement in 2018 and then her description of each incident followed a similar pattern with the only the difference being the position the complainant says she was put in or the location of the event.
The date ranges for each offence are very broad. There was no accompanying detail as to what else may have been happening between JW and Mr Jones or what JW did at the Corrimal unit or the Bulli house apart from a reference to failing PE because she was crutches or friends coming over (the cut heel incident). There is no evidence anyone, family or neighbors noticed anything out of the ordinary at the time. While this does not disproved the allegations, as assaults such as this would be kept secret, I am left with nothing other than the accounts themselves.
JW left her Wollongong High School in mid-1981. That school's records note the school she was moving to was "Bulli." I have no doubt that she was living at Bulli for the period before she and her father moved to Corrimal. RA's evidence that she never lived there could not be accepted. Nor do I doubt that she then left Corrimal to live with her mother, although I have no idea when that occurred. There was no evidence about why she enrolled at the High School near the Corrimal unit and not the one close to her Aunt's home in Bulli or when she started at that school. There was evidence about the school she went to when she moved back to Fairy Meadow but not what date she changed schools or what occurred when she moved to Dapto. And her mother told me she did not originally have a bedroom at Dapto but a room was made available to her when she came back (presumably from her father's): TT page 178
While JW did see a relationship counselor in 1988 the only remaining note from those visits is "2 year 2 month relationship." There is no objectively verifiable record of which relationship or what she was counselled for.
I am prepared to accept, on the limited evidence available, that there is a real possibility there were assaults with acts of indecency committed by Mr Jones on JW at both Bulli and Corrimal. But, and it is an important and fundamental but, in matters such as this I do not act on what I believe might probably be the case. Whatever Mr Jones did to JW in 1981, 1982 and 1983 occurred too long ago for me to be satisfied beyond reasonable doubt about what actually happened or that any specific event occurred as alleged.
I can only return a finding an act was proved if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. And here I just cannot do so. The defendant must have the benefit of that doubt on each of Counts 4 to 12.

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Judgment (66 paragraphs)

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Cases Cited (10)