R v K

Count 1

1. The complainant gave evidence that on occasions, he would go into the applicant's bedroom. On the first couple of these occasions he recalled sitting on the applicant's bed and there wasn't any tables or chairs or anything. [24] He described being "pretty sure" that the bed was a double bed. [25] On the first couple of occasions they would mess around a bit on the PlayStation, and he recalled watching a game of GTA 3 [26] and vaguely remembered Gran Turisimo. [27] He went to the house with his mother and he could not recall if his two sisters were present. [28]
2. On the first occasion something happened, the applicant recalled was there, because it was during the day. They hung around together in the family room and then they proceeded to the applicant's bedroom. Despite having earlier stated he could not recall if his sister was present, he indicated that the applicant's mother and his sister would have been there. He stated that only he and the applicant went into the latter's bedroom, and they were sitting on the bed. He said that the applicant turned on the TV and the PlayStation and he mucked around on the PS2. The complainant stated, "we'd be playing" then they would stop playing and then the applicant asked if he had heard about a game called "Doctor" and the complainant responded "no." He stated that the applicant said to him "If there is an injury down there, we need to make it better and the way to make that better would involve kissing and sucking". He said that "down there" meant the "groin area, in the crutch." [29]
3. At the time he was sitting on the bed, he could not remember what either himself or the applicant were wearing. He described the applicant pulling down his pants and talked about kissing and said that it would help make it better and the sucking would make it better as well. The applicant was half lying down and half sitting up on the bed and then pulled his pants down past his crotch just before the knee. He then stated that he went along with it and would kiss and suck the applicant's penis. He stopped when the applicant ejaculated into his mouth. [30] Thereafter, the applicant said to him "It's looking better now. It feels better." [31] In cross examination, the complainant acknowledged that in his police statement he did not mention the word "kissing" in reference to "kissing and sucking." [32]
4. In any event, the complainant stated that he then proceeded to go to the bathroom to clean up by washing his hands and his face. They then returned from the bedroom and started hanging out again. In the bathroom/laundry he recalled a toilet and a little sink and a sink in the laundry part. He recalled using the laundry sink which was a little bit tall for him and he would have to reach up. [33] In cross examination, the complainant acknowledged that in his police statement, there was no reference to the use of the laundry sink and only the bathroom sink. [34]
5. When returning to the bedroom he recalled continuing to play PlayStation. [35] He did not say anything because the applicant told him that it was their little secret; it was just between them and no one else was to know. [36]
6. This was the complainant's evidence in relation to count 1.

Count 2

1. On the next occasion, the complainant also stated that he could not remember if other members of his immediate family came over [37] with him before later stating that it would have been his mother and his younger sister along with the applicant and his mother. [38] After hanging out in the living room, he went to the applicant's room where a TV and the PlayStation were turned on. He recalled the applicant playing on the PlayStation before getting bored and that it "started again." [39] He recalled the applicant would start complaining about his penis being sore and needing attention. He said that the applicant said to him "there's something we can do about it". In cross examination however he acknowledged that in his police statement beyond mentioning the game "doctors and patients" and how it was played, he never mentioned that that the applicant complained that his penis was sore and needed attention or needed to be looked at. [40] Nor did he mention that the applicant stated, "there's something we can do about it." [41]
2. In any event, the complainant stated that the applicant then proceeded to get onto the bed, half lied down and half sitting up, pulling down his pants and the complainant started sucking on his penis. He stopped when the applicant ejaculated into his mouth. [42] They then proceeded to using the bathroom sink not the laundry sink to clean up. [43] Thereafter, they went back to the applicant's room and hung out before it was time to go again. When they went back into applicant's room, the complainant said he was again told that "this is our secret" and "don't tell anyone, otherwise, we'll, yeah, we'll get in trouble." [44] The complainant was specifically asked whether anything else occurred. He stated they started talking about sex and "we tried the intercourse." [45] He was then asked about what they were talking about sex as best as he could recall, and he said that he was told "it's these things that people do to feel good, and yeah that it would be cool to try it." [46] When he was asked again whether anything of a sexual nature occurred on this visit, he responded "No." [47] In cross examination, he accepted that there was no mention in his police statement of the applicant telling him that people do it to feel good and couples do it and that it's "pretty normal." [48]

Count 3

1. The complainant was asked as to the occasions that he has spoken about as to the sucking on the applicant's penis who would have the role of sucking the penis. He stated that it was essentially the doctor or the nurse providing care to the patient and that it was the role of the doctor/nurse type thing. He was asked whether there were occasions where the roles were reversed, and he responded that there were a couple of occasions where he was the victim that was in pain. On the first occasion that this occurred, he was in the bedroom and would have his pants pulled down and the applicant would suck on his penis. He was asked whether on this occasion he recalled whether there had been any other sexual interactions between himself and the applicant on that day. He responded that he could not recall and that "it was just, yeah, that or both." [49] This first occasion as described were the circumstances alleged to constitute count 3.

Count 4

1. On another occasion, the complainant described being with his mother and going into the applicant's room with the applicant himself. The applicant played PlayStation or was watching TV and he went over and sat up on the bed. [50] On this occasion, he also described the applicant stating that his penis was sore and injured and asked if he would help him out to make him feel better. [51] The applicant then pulled his pants down again, below his crutch, and around his knees and lied down and he (the complainant) would start sucking on his penis until the applicant ejaculated. [52] Thereafter, he was described as going into the bathroom/laundry and using the bathroom sink to clean up. Thereafter, they went back into the room and hung around. [53]

Count 5

1. The complainant was then asked whether other things happened, and he said that he could not recall whether it happened on the same day as Count 3 or other days but, on one occasion, the applicant attempted to put his penis into his anus. [54] He described both himself and the applicant being in the bedroom and the applicant stating that "this is something people do, and it was pretty normal." [55] He was asked what he did before it occurred, and he stated that he was a bit hazy because he was young and blocked a bunch of it out. He then stated that he could not remember if the attempted intercourse into his anus occurred before or after the penis sucking. [56]
2. The complainant stated that he would have been on the bed with his face lying down and his pants and undies off. The applicant then stepped into position and attempted to insert his penis into his anus. [57] He was asked if he was able to insert his penis in at all and he stated "Not really, like I, I could feel, like I could definitely feel something going on back there. I felt a little bit, but I think, I think he was just struggling to try and put it in so to speak, like a bit of poking around back there, if that makes sense." [58] He stated that it stopped as the applicant was having trouble and he just gave up. [59] He then put his pants back on and the applicant pulled his pants back up and went back to playing PlayStation and chilling out. [60] When asked whether he recalled anything else happened after that he stated, "not that I can recall." [61] He did not say anything to anyone on the day as the applicant had said things along the lines of "this, you know, this is special, this is secret, you know don't tell anyone, we'll get in trouble." [62] The complainant stated that the applicant mentioned that if they got caught it was going to be his fault and that they would get into trouble. [63]
3. This was the complainant's evidence in relation to count 5.
4. The complainant recalled going over to the applicant's home during from 1996 into 1997 probably half a dozen times. [64] In cross examination, he reiterated that the six or so times that he said it happened "pretty much every time" was additional to the times previous that when nothing happened. [65] He stated that there would be sexual contact with the applicant "every time pretty much." [66] When asked how many times that would have been with penile/anal contact he responded, "that happened two to three times". [67]
5. He also accepted however that there was no mention in his statement to police of the applicant trying to insert his penis into his anus a second or third time. [68] He denied seeking to add the allegations into the matter at this stage. [69]
6. In relation to occasions when the applicant would suck on his penis, the complainant could only recall that happening twice. On the occasions where he (the complainant) would suck on the applicant's penis, he stated that it happened on every one of those occasions. [70] He came to accept that on every one of those occasions, the first sexual incident occurred. [71]
7. These incidents were described as having stopped at the time the applicant got a part time job at a local KFC and met his current partner. [72] The complainant recalled that when he was going around to the applicant's home it would have been just before school or around the starting time of school and maybe a few months into school.
8. In cross examination, the complainant would not accept that the applicant did not start working at KFC until the end of year 11 being the end of 1998. [73] He acknowledged that at the end of 1998, he would have been in year 1 and 7 years of age. [74] He acknowledged that by the middle of kindergarten he had moved from Albion Park Rail to Oak Flats. [75]
9. He could not recall when the applicant started dating his now wife. [76] However, he accepted that in 1999 he would have been in year 2 and around 8 years of age [77] and, furthermore, in 2000 he would have been in year 3 and 9 years of age. [78] He accepted that in his statement to police, he stated that he recalled that on the 5th or 6th occasion "this stopped" because the applicant started working at KFC Shellharbour where he started dating a girl who became his wife. [79] He acknowledged seeing the applicant at various family events between 2002 and 2015 and not expressing any difficulties to the applicant at the time. [80]
10. In her evidence, the complainant's mother accepted that the applicant finished school at the end of year 11 and started working at KFC and it was around the period of working at KFC that he met his wife. [81]

Complaint

1. The complainant recalled that the first person that he told about what happened between himself, and the applicant was his uncle (being his father's brother) and his house mate in 2017. His uncle confirmed as much although disputed that his house mate was present. The uncle gave evidence that he understood that the complainant's allegations related to a period when he was living at Albion Park Rail. [82]
2. The uncle told the complainant that he should tell his parents, but it was up to him. [83] A few weeks later, he said that he took the complainant to his brother's house. They were in the living room with his brother and sister-in-law as well as the complainant. [84] On that occasion, the complainant told his parents of the alleged offending.
3. On this application, the defence did not submit as to the content of what the complainant described. It is unnecessary in the circumstances to refer to this aspect any further. The applicant did submit as to the delay in reporting, being a matter that will be addressed later in these reasons.
4. On 5 July 2018, the complainant gave his statement to police. The complainant stated that since that statement there had been more things that he remembered and that he has shoved, a lot of these things down and when he finally started talking about it these things started coming up. [85] He acknowledged that he did not contact the officer in charge and indicate that things were coming back to his memory. [86] The complainants father and mother went with the complainant to report the matter to police on 5 July 2018 and were present when a pretext phone call was made between the complainant and the applicant on 30 August 2018. [87]
5. The complainant's mother made a statement to police on 12 July 2018 [88] and his father on 3 August 2018. [89] The complainant's uncle made his police statement on 21 August 2018. [90]

Pretext Calls

1. The complainant was thereafter involved with police in three pre-text calls being on the 30 August 2018, 6 September 2018 and 18 September 2018. Nothing of any consequence was disclosed in the call of 30 August 2018. Although, there is an acknowledgment on the part of the applicant of remembering playing "GTA 3" and hanging around. However, the time sequence as to when this occurred is not referred to.
2. The second pre-text call on 6 September 2018, the complainant referred the applicant to his recollection of when he was 5 or 6 years old. He told him that he came over and they had bit of a play on the GTA game and recalled playing doctor/patient and doing some sexual activities and that sort of thing. The accused denied recollection of such activity indicating he also did not remember the complainant being on the bed with his pants off and with the applicant having his pants off.
3. Similarly, the applicant stated that he had no recollection of the incident in the third pre-text call of 18 of September 2018.

PlayStation

1. In cross examination, the complainant was adamant that the PlayStation earlier referred to was, a PlayStation 2 console. [91] It was put to him that this was not released in Australia until 2000. He stated that he was young at the time and thought it was a PlayStation 2, but it could have been a PlayStation 1. He knew, however, that GTA 3 was a PlayStation 2 game. Gran Turismo, he thought was a PlayStation 1 game initially, but he remembered going there and playing PlayStation "and that sort of thing." [92]
2. It was put to the complainant that Gran Turismo was not in Australia until 1996 or 1997. He stated that they may have played it after the events stopped because there were times when they would get together and essentially do the same thing. [93] He then stated that Gran Turismo and GTA 3 may have been after all the "stuff" happened. [94] It was subsequently put to the complainant that he could not have played GTA in 1996 or 1997 as it was released in Australia in 1998. He stated that he could not remember whether it was 1996, 1997 or 1998 but he just remembered being in the applicant's room with a PlayStation and sometimes with GTA and sometimes with Gran Turismo. [95] It was also put to the applicant that GTA was not available in Australia until 2001. He appeared to accept that this was so. [96]
3. The complainant acknowledged that the events could have occurred before the games were out but stated that he distinctly and specifically remembered being in his bedroom playing GTA adding that it could have been a couple years later when the games came out but the stuff that happened was in his head and he remembered as well that they would play PlayStation. He stated that occurred long ago and some of the timelines might be a bit hazy. He added that he specifically remembers GTA 3 because they were there playing it and they were having a laugh about a particular thing the applicant did on the game. [97]
4. The complainant's mother stated that during her visits on the odd occasion, she would take the complainant to applicant's room to play PlayStation whilst she had a cup of tea with her sister. [98] The complainant's mother recalled seeing something in the applicant's bedroom that had a screen but she didn't know whether it was a computer desk or a shelf or something. [99] She stated that the screen was to her right but it was a long time ago. [100] She would have gone to the bedroom once or twice. [101] When she visited, she stated that the door was closed. [102] She could not remember seeing the door open. [103]
5. The complainant's mother rejected the suggestion that during the period of December 1996 to mid-1997, the applicant never invited the complainant to play any PlayStation games with him. [104] However, she stated that she didn't know the difference between an Xbox and a PlayStation and any other video games because she has never played one. She added that she didn't even get a computer until 1995. [105] She further rejected the suggestion that the applicant never had any kind of gaming console during the period from December 1996 to mid-1997. [106] She stated that she understood the complainant's allegations concerned a period of time that he was in the applicant's bedroom playing video games with him. [107] She stated that it was her understanding that there was something in the applicant's room and that understanding came from her taking the complainant to applicant's room. [108] She acknowledged that she did not tell police in her statement that sometimes she would take the complainant to the applicant's room to play with him adding that she was traumatised when she received the news and should have told the police this. [109] She accepted however that during 1996 and 1997, the complainant never indicated anything occurring between himself and the applicant. [110]

Bed

1. The complainant conceded that whilst he told police that the applicant had a double bed in his bedroom, he was not 100% sure. [111] With reference to layout in Exhibit 4, [112] the complainant stated that the applicant liked to move his room around and recalled the bed being on the right-hand side as he entered. [113] He remained adamant that the bed was located as he depicted in Exhibit C [114] as he recalled watching TV and looking at the TV whilst sitting on the bed. [115]
2. Later in cross examination, it was put to the complainant that there was no time around 1996 or 1997 where the single bed was moved from where it is in Exhibit 4. After first disagreeing, he ultimately stated that he didn't know and he could have moved it and then moved it back. [116] The complainant accepted that if he was sitting on the bed opposite the wardrobe as depicted in Exhibit 4, he would have his back to the window and he would be looking at the wardrobe. [117]
3. The complainant accepted from what he could remember that the room was kept quite neat and tidy at all times. [118] The complainant's attention was then again drawn to Exhibit C where he had indicated in two sections - the left-hand side of the door where there was "random stuff" near the word "background" and "doorway." He stated "I'm not saying I'm not sure. I remember there being - see because, because we'd been over there a bunch of different times. It's kind of hard to remember specifically what was where at specific times in terms of the things that are around the room." [119] He acknowledged that he was unsure about the positioning of stuff in the room between 1996 and 1997 and at other times it would have been prudent to inform police of that. [120] He stated that as to whether the depiction between 1996 and 1997 was accurate, he was not sure and he just remembered things being different at different time. [121]
4. The complainant accepted from day care that there was an open-door policy and that the applicant and his sister's bedroom doors were always kept open unless they were getting changed. [122] He was adamant however that he recalled the bed being in a position as he depicted in Exhibit C.
5. The complainant's mother stated that she recalled the applicant's bed would be located opposite to her line of vision so that it was in front, [123] straight in from the doorway. [124] She could not recall the size of the bed, [125] however, believed that the representation of the single bed depicted in Exhibit 4 was accurate. [126]

Secrecy

1. The complainant was challenged in respect of instructions allegedly given to him by the applicant as to not revealing what had occurred and the correlation of that evidence with what was recorded in his police statement. [127]
2. As neither party submitted in relation to this, it is unnecessary to recount all the details.

Agreed Facts

1. For the purposes of proceedings, the agreed facts were tendered between the parties as Exhibit K. It recorded as follows: 1. The game Grand Theft Auto was first released for sale on 12 December 1997 in Japan and the European Union and made available in North America on 30 June 1998. 2. The game Gran Turismo was first released for sale on 23 December 1997. It was made available in the European Union on 8 May 1998 and North America on 12 May 1998. 3. The gaming console PlayStation 2 was first released for sale on 4 March 2000 and made available in the Australian market on 30 November 2000. 4. The game Grant Theft Auto III was first released for sale on 23 October 2001 and made available in the Australian market on 4 November 2001.

Applicant

1. The applicant gave evidence that the floor plan of his room as depicted in Exhibit 4 is exactly as it was between 1996 and 1997. [128] The bed was positioned against the eastern wall on the left-hand side from the door. There was nothing else other than a small bed side cabinet. He described the wardrobe as a three-door mirrored glass wardrobe that expanded the full width of the room and inside it, had custom made shelving. [129] The applicant stated that his practice in late 1996 to mid-1997 was to come back from school and go to his bedroom, get changed and usually he would then ride his bike around the neighbourhood. [130] He recalled that his home would not get visitors as parents were encouraged to collect their children and go because there was always other kids there. He accepted that his aunt (the complainant's mother) would on rare occasions stay for coffee when picking up her children. [131] He recalled that during part of the period the complainant was there and after he moved childcare centres, his sisters remained there for day care. [132] He could only recall one occasion when the complainant, the complainant's mother and sisters were present in the period of late 1996 to 1997. The applicant stated that on that occasion he was asked to take the complainant away because his aunt wanted to talk to her sister in privacy. [133] Consequently he asked the complainant to come to his room and thereafter he had no further recollection of what happened. [134] Otherwise he would not play with the complainant during the period. [135] He stated that he didn't play with other children as he did not want to be home at that time and usually rode his bike. [136]
2. In cross-examination, the applicant stated the frequency with which the complainant's mother would stay for a cup of coffee with his own mother in the afternoon would at a stretch be monthly. According to him the practice was discouraged. [137] He stated that the calls that the complainant's mother made during the period 1996 to 1997 would be purely for a pick-up and drop off not a social call. [138] He stated that it was rare for the complainant's mother to stay at the house very long. [139] The applicant rejected the suggestion that the complainant, his sisters and their mother came over during the week and would stay for 45 minutes or so. He acknowledged that they came on weekends "extremely rarely." [140] He disagreed with the suggestion that towards the latter part of 1996 to mid-1997, the complainant would go into his bedroom when he was there. [141]
3. The applicant acknowledged that next to his bedroom was the laundry [142] and adjoining it was a small toilet and shower. [143] The toilet was against one wall and the shower was against the other and there was a small hand sink and a green and white step turtle to enable the day care kids to wash their hands. [144]
4. The applicant stated that he rarely saw the complainant's father. [145] When the complainant's mother visited during the week, that visit did not include the complainant's father. [146] He further stated that he finished high school at the end of 1998 in year 11 and was 16 years of age. At that point, he left for full-time employment at KFC. [147] In the final stages of 1998, he recalled working at KFC at Shellharbour adding in cross examination that this was on a rare casual basis. He rejected the suggestion that he could have started in the latter part of 1997. [148] However, an opening happened at Albion Park, when he finished school and went straight into that full-time role. [149] At KFC he met his future wife and commenced dating 18 July 2000. [150]
5. The applicant stated that he had not purchased any video game consoles until he purchased a Sony at the end of 1998 but more likely at the start of 1999. [151] By this, he recalled a Sony PlayStation. [152] He reported that his father wouldn't buy toys or games and the Sony PlayStation was the first item that he purchased as a working person. [153] At that point is when he purchased Gran Turismo. [154]
6. In cross examination the applicant stated that in 1996 and 1997, he didn't have any sort of screen in the room nor did he have a TV. [155] He stated that he first bought a TV when he started working in late 1998 and before purchasing the PlayStation. [156] The only other video game between 1996 and 1997 was Atari 2600 which was played from when he was in kindergarten till year 1. [157] That had Donkey Kong and Gorf as well as space invaders. It did not have any driving games or anything like that. [158] He stated that it was plugged into the TV in the loungeroom, and TVs were not acquired until he started working. [159] The game did not go into his bedroom as he needed a special adapter called a coax.
7. The applicant recalled growing up with a policy where the doors had to remain open unless changing and nothing was to be laying around the house that could potentially be a choke hazard. [160] The applicant described that if he was sitting on his bed to his left would be a wall, looking straight would be the mirrored wardrobe and looking right would be the hallway in front of his parents room. [161] If he was in the hallway with his back to the wall looking down he would look straight into his bedroom and see the side of the bedside cabinet and his bed hard up against the wall. [162] The position of the bed did not change during the period 1997 to 1997. [163]
8. The applicant recalled seeing the complainant at family events. [164] He stated that he interacted with him, and it was always a welcoming chat and discussion. [165] Other than those occasions, the next time he recalled hearing from the complainant was when he received the pretext phone call. [166] The applicant stated that all the allegations were untrue. [167]
9. The applicant acknowledged that he first heard about the allegations when he was at the police station. [168] He acknowledged that there was some mention made in the phone calls but stated that the complainant was not specific. [169] He was adamant that he did not recall playing any sort of video games when the complainant was present. [170]
10. The applicant was cross-examined in relation to the first pre-text call and rejected the suggestion that his answers suggested that at some point in time he played computer games with the complainant. [171] His answers seem to correspond with responses in the second pre-text call where he told the complainant that he did not know what he was talking about. At one point, he indicated that he didn't get GTA until "I don't know, um." [172]
11. He rejected the suggestion that his bed was on the right side of the door in the way indicated by the complainant. [173] He rejected the suggestion that there was a game relating to doctors. [174]
12. Much of the applicant's responses were confirmed by his mother and sister.

Applicant's Mother

1. The applicant's mother confirmed that in 1996 to 1997, she was employed by Illawarra Family Day Care and would care for children from her home. [175] Her hours varied between 8 and 4 though there was one child who she cared for between 7:30am to 5pm. [176] She subsequently added that she didn't think she was a 7:30am start but an 8am start but she was a 5pm finish. [177]
2. The applicant's mother stated that if her sister stayed after dropping off the children it would be for a quick cuppa and her children would be playing. In cross-examination, she recalled that her sister would stay over for a cup of tea every 3-4 weeks or once a month together with times she came over during the holiday period between 1996 to 1997. All up it would be up around 16 times. [178]
3. She described the complainant as being with the other children in the lounge and in the dining room. [179] She did not have a recollection of the complainant playing with the applicant. [180] Between 1996 and 1997, her children were attending high school and would usually leave home at 8am and return at about 4pm. [181] When the applicant arrived home, he was described as going out for a bike ride. [182] The applicant said that he would usually be out for at least one hour but always home for tea between 5:30 and 6pm. [183] She confirmed that the applicant left high school in year 11 and went to work for KFC where he subsequently met his future wife. [184]
4. In cross examination, she could not recall occasions during the end of 1996 to mid-1997 where the complainant went down to the applicant's room possibly on the computer. [185] She stated that the children were always kept in the lounge room. [186] She recalled when her daughter was playing with the complainant's sisters and the complainant would also be there and the applicant would usually be off riding his bike with his friends. [187] She stated that the children only went into other bedrooms during the nap times. [188] Children closed their doors only when they were getting changed. [189] She never recalled the applicant and the complainant together in the former's room between 1996 and 1997. [190] She faintly remembered his bed being on the right hand side being towards the wardrobe for about a week. [191]
5. The applicant's mother confirmed that the applicant did not have a TV in his room nor did he have a PlayStation. [192] She confirmed that he may have had the family computer in his bedroom but was not sure. [193] She didn't know of any gaming console. [194] She stated that he probably got a TV when he was at KFC. [195] She recalled him getting the PlayStation much later because he had to work for that as well. [196] She recalled that her children had Atari that had been given to them [197] when both were in primary school. [198] That was only used in the lounge room because there was only one television. [199]
6. The applicant's mother confirmed that house rules required to leave the doors open to allow fresh air and it was a house rule to keep the rooms tidy. [200] The rooms in the house did not have locks and they were not allowed to lock the doors unless they were getting changed. [201]
7. The applicant's mother otherwise confirmed the layout of the room as per Exhibit 4. [202] In cross-examination, she described that the computer was sometimes in the applicant's room and it was an Amiga very old style, big block screen computer set up on the desk. When it was in the applicant's room, she recalled it being on the laundry wall side of the room. She did not think that there was enough room to have it placed between the bedroom and the wardrobe but could not recall. [203]

Applicant's Sister

1. The applicant's sister stated that the applicant and herself would generally be at home from school close to 4pm and her mother was running a day care centre. [204] She stated that the children would be in the lounge room, toy room, backyard and on the back deck and her three cousins were also part of the day care. She recalled that her cousin (the complainant) was only in day care when he was about 4 and then went to another carer. [205] She stated that when she would return from school the complainant had been collected before they had returned, and the complainant's mother would be able to leave or would stay for coffee. She recalled him playing in the loungeroom or in the toy room. She did not recall him playing with the applicant. [206] She said it would surprise her if they were playing together. [207]
2. She added that the lay out of the bedroom accorded with what has been given by the applicant and his mother. She did not recall the bed being moved between 1996 and 1997. [208] She recalled the bed being a single bed. [209]
3. The applicant's sister recalled that her brother finished in year 11 and got a job at KFC when he was 16 years of age. Through KFC he also met his wife. [210] She recalled that the applicant did not have a TV in his bedroom between 1996 and 1997 and probably would have got one when he started working at KFC. [211] That would have also been the situation for the PlayStation. [212] She recalled there being a computer desk in the applicant's bedroom and she recalled only social visits between her aunt and the children every now and then during the school holidays on one or two occasions. [213] She did not recall the complainant playing with her brother. [214] She stated from her bedroom door she could see her brothers bedroom door and she was mostly at home. [215]

Legal Principles

1. Section 3 of the 1967 Act provides: 1. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and 2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. ….
2. Section 3A of the 1967 Act states as follows: 1. For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to - 1. the relevant facts established in the proceedings, and 2. any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and 3. any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that - 1. relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and 2. were not adduced in the proceedings. 1. Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - 1. order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and 2. if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. 1. If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - 1. order that leave be given to the defendant to comment on the evidence of those relevant facts, and 2. if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person.
3. In Dao v R (No 3) [2016] NSWCCA 282, Meagher JA with whom Hall J agreed referred to the relevant principles in the following terms: [39] - It is not for the Crown to establish nor for the Court to conclude that the institution of the proceedings was, or would have been, in the relevant circumstances reasonable: Cittadini v R [2010] NSWCCA 291 at [7], citing R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [14]. The applicant must satisfy the Court that it would not have been reasonable to institute the proceedings. … [42] - In R v Johnston [2000] NSWCCA 197 (which was heard concurrently with the application in Manley), Simpson J (as her Honour then was) described (at [16]) the assessment which the Court is required by s 3 to undertake as involving: 1. an evaluation of all of the evidence as it emerged at trial; 2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted; 3. a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings … [43] - The "relevant facts" include facts "established through the evidence of prosecution witnesses, and through the witnesses called by the defence in its case": Manley at [9] (Wood CJ at CL). See also R v Williams; ex parte Williams [1970] 1 NSWR 81 at 83 (Sugerman P). Those facts may also be described as evidentiary facts so as to distinguish them from the ultimate facts that must be proved to establish the elements of the offence charged. This distinction is referred to by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532. See also Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [170] (Kirby J). [44] - Finally, as Wood CJ at CL also observed in Manley (at [14]) in relation to the assessment of the reasonableness of the decision to prosecute: … the section calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury. [45] - In some circumstances the flaws or weaknesses in the Crown case will be sufficiently clear and inherent to justify a conclusion that in the face of all the relevant evidence, it would not have been reasonable for the prosecution to institute the proceedings. This is illustrated by reference to three of the decisions considered in Manley. In R v McFarlane (Supreme Court (NSW), 12 August 1994, unrep) Blanch J described such a conclusion as justified where the evidence favouring the accused is "overwhelmingly strong". In R v Fejsa (1995) 82 A Crim R 253, the Court considered (at 257) the complainant's uncorroborated evidence in support of a charge of sexual intercourse with a child to be of an "extraordinary and unlikely nature". The critical question in R v Pavey (1997) 98 A Crim R 396 was whether the prosecution could prove beyond reasonable doubt that the accused's act in shaking a baby had caused its death. His evidence was that the baby had stopped breathing before it was shaken. The expert medical evidence was equivocal and was not capable of excluding the reasonable possibility that the accused's version was true. It was held (at 401) that the Crown ought to have been aware of these "significant weaknesses".
4. Fagan J who dissented in relation to counts relating to one complainant (DP) stated at [129]: … presented with a prima facie plausible account, from an apparently genuine complainant, of grave acts of indecency by a trainee priest, misusing his position of trust with the children of parishioners, I consider there would have to be clear contradiction of the allegations or a strong measure of improbability or doubt about them before it could be said that a prosecutor acted unreasonably in bringing the allegations before a jury to decide …
5. Another way of describing the test was expressed in R v Dunne (Supreme Court of NSW, 0865 of 1989, 17 May 1990 unrep) where Hunt J stated: "it would, for example, be an unusual case in which it was held that it was not reasonable for the prosecution to allow a case to go to the jury simply because an issue of self defence - even a relatively strong case of self defence - was to be raised. Nor is it sufficient to establish this issue in favour of the applicant for a certificate that, in the end, the question for the jury depended upon word against word (leaving to one side the correct formulation of the onus of proof). In a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would, however, be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." (pp 5-6)
6. In this case, the applicant advanced his case based on what was described in the last sentence of Dunne. That was a statement endorsed by the Court of Criminal Appeal in Cox v R (No 2) [2017] NSWCCA 129 at [8].

Analysis

1. As noted earlier, the application was brought in respect of all 6 charges upon which the applicant was initially indicted.
2. The applicant relied on an affidavit of his solicitor Matthew Kwan affirmed 20 May 2022 annexing correspondence to the Office of the Director of Public Prosecutions (the Director) on 12 April 2021 indicating that he was not sure there were any real prospects of conviction. [216] This was followed on 6 July 2021 a nolle prosequi application which was forwarded to the Director asserting no reasonable prospects of conviction. On 16 July 2021, the Director responded advising that the matter was to proceed.
3. Reiterating on what Mr Kwan had foreshadowed in his correspondence the applicant relied on the following features: 1. The delay in complaint and the nature of the complainant. 2. The fact that the PlayStation 2 and other games were not around at the time of the allegation. 3. The alleged offending occurring when other people were in the home; and 4. Directions to the jury
4. Delay in reporting and the way it occurred in this instance is not something that is uncommon in matters of this nature such as to make the commencement of proceedings not reasonable. The law expressly recognises that there may be reasons why a complainant does not make an immediate complaint (see s 294 of the Criminal Procedure Act 1986 (NSW) (the 1986 Act).
5. I also accept that the likelihood of the allegations occurring because of other people being in the house is not a factor by itself which indicates that it would not have been reasonable to institute the proceedings. There may have been an opportunity for the alleged events to have occurred notwithstanding the general open-door policy (which the complainant acknowledged) whilst there were others elsewhere in the house.
6. I also acknowledge that the offender's previous good character, denials and the fact that directions of suffering a significant forensic disadvantage as well as directions as to an essential Crown witness were given to the jury as foreshadowed in the defence nolle prosequi application. Again, these matters would not indicate that it would not have been reasonable to commence proceedings. As was stated in Higgins v R (No2) [2022] NSWCCA 82 at [29]: … it is not uncommon that sexual offences committed against children are committed by persons who are otherwise of good character and who adamantly deny their wrongdoing.
7. Furthermore, s 294AA (2) of the 1986 Act specifically prohibits any warning to the tribunal of fact that there is a danger in convicting on the uncorroborated evidence of a complainant; see Higgins (No 2) at [27].
8. This leaves the question of the complainant's credibility. The applicant submitted that the evidence of the complainant was by far the most clear and central deficiency in the Crown case.
9. The respondent tendered on this application an affidavit of Lachlan McGonigal solicitor sworn 3 June 2022 ,annexing the complainant's statement to police of 5 July 2018. [217] Relevant to counts 5 and 6 as first charged, the complainant in his statement at [12] described actual penile/anal intercourse followed at [13] with a further act of fellatio performed by the complainant on the applicant. The respondent submitted that the complainant could not recall this when he gave his evidence however it was part of his statement given several years earlier. Given this and the fact that the complainant had to give evidence about several historic sexual incidents, the respondent submitted that it was not unreasonable for the Crown prosecute these counts.
10. Whilst the respondent may not have anticipated the applicant's evidence to have unfolded in this way, the Court on this application is to consider the reasonableness of the prosecutor's actions before the proceedings were instituted, had it been in possession of evidence of all the relevant facts. The relevant facts include not only those established in the proceedings but those on the application. Ultimately, however, the applicant advanced no specific submission on this basis.
11. The applicant placed greater reliance on the evidence of the complainant, arguing that it did not allow for the separation of the alleged offences from the playing of PlayStation 2, GTA 3 ad Gran Turismo. It also pointed to other evidence that undermined the complainant's account such as the year that the applicant started working at KFC and met his now wife which the complainant described as resulting the end of the offending. Neither the applicant's commencement at KFC nor the meeting of his partner corresponded with mid-1997. The applicant argued that it did not appear that police sought his records nor sought to speak to members of his family.
12. The respondent acknowledged that defence had provided forewarning as outlined above but asserted the matters raised by the applicant were matters that went to the credibility of the complainant and they were not something that it was required to prove. The respondent pointed out that there was evidence that a computer of some sort was in the room at the relevant time, and it was reasonable for a 5- to 6-year-old to get confused about the type of game and console or even screen. This it was argued was a matter to be left to the fact finder as to the question of credibility. It argued that this was not the only time marker there as there was also the fact that the applicant lived in Albion Park Rail.
13. As to the information regarding the applicant's employment and meeting his partner, the respondent argued that was not information that was disclosed by the defence and details of the applicant's mother and sister's evidence were not known until the trial. It submitted that the failure of the defence to notify was such that it should be considered in the context of s 3(1)(b) of the 1967 Act.
14. The complainant's account inextricably linked the offending with the use of a TV, PlayStation 2 and identified games. The evidence of all other witnesses did not support the applicant having a TV in his room at the relevant time nor that it was in a position that the complainant asserted. There was some evidence of a computer monitor in the applicant's bedroom at some point. However, the complainant did not suggest that this was used in conjunction with the identified games. At one point, his evidence was that he recalled watching TV and looking at the TV whilst sitting on the bed positioned in a location where the evidence indicated that there was a wardrobe as a three-door mirrored glass wardrobe that expanded the full width of the room, and inside, it had custom made shelving.
15. The complainant was adamant that the PlayStation was a PlayStation 2 console. [218] Whilst he later suggested it could have been a PlayStation 1, he referred to GTA 3 being a PlayStation 2 game. Ultimately, he came to state that they may have played it after the events stopped because there were times after this stopped when they would get together and essentially do the same thing.
16. The complainant acknowledged that the events could have occurred before the games were out but stated that he distinctly and specifically remembered being in his bedroom playing GTA adding that it could have been a couple years later when the games came out but the stuff that happened was in his head and he remembered as well that they would play PlayStation. He stated that occurred long ago and some of the timelines might be a bit hazy. He added that he specifically remembers GTA 3 because they were there playing it and they were having a laugh about a particular thing the applicant did on the game. [219]
17. The agreed facts indicate that PlayStation 2 and the games alleged to have been played by the complainant in connection with the offending were not in existence at the time.
18. The complainant's evidence as to playing those games on a PlayStation console cannot be reconciled with the period when he was residing at Albion Park Rail. The date range in the charges was based on the complainant's claim that the offending occurred within the year before and the year of commencing kindergarten corresponding with the period the complainant and his family resided at Albion Park Rail.
19. Nor could the complainant's assertion as to the cessation of the alleged offending in mid-1997 be reconciled. The complainant's evidence was that the cessation came about because the applicant commenced work at KFC and met his partner. The unchallenged evidence however was that the applicant commenced work at KFC at the end of 1998 first at Shellharbour and subsequently at Albion Park. He came to meet his partner in 2000. The complainant's mother who was called in the Crown case gave evidence that the applicant commenced working at KFC after finishing year 11 and he met his partner whilst working at KFC.
20. There was no evidence that the applicant's mother or sister were approached by the Crown to provide a statement or that they were unwilling to do so. In any event, there was nothing to suggest that the prosecution could not have sought to verify the applicant's school and employment history from primary records.
21. I acknowledge the Crown submission that the complainant was trying to recall events which happened when he was 5 or 6 years over roughly a 6-month period. In Cox v R (supra) (No2), the Court at [9] referred to Hunt J's comments in R v Dunne (supra) (reproduced at [81]) stating that a witness may be "substantially lacking in credit" even though the witness in not being deliberately dishonest. At [10] the Court stated: The terms of the section do not require the Court to form a view as to whether the child was being deliberately untruthful. Rather, it is a matter of assessing objectively whether the deficiencies in the evidence are such that it would have been unreasonable to institute the prosecution had those deficiencies been known to the hypothetical prosecutor when the proceedings were commenced.
22. Bearing in mind these matters, the complainant's evidence must be viewed as substantially lacking in credit or subject to a clear contradiction or a strong measure of improbability or doubt. I am satisfied that the applicant has established that had the prosecutor been in possession of evidence of all the relevant facts it would not have been reasonable to institute the proceedings. To the extent the defence did not advise of the evidence complained of, I am satisfied that this was reasonable. To the extent the evidence had bearing on the complainant's credibility, the prosecution could well have sought and elicited the information for itself.
23. Accordingly, I grant a certificate pursuant to s 2 of the 1967 Act specifying that pursuant to s 3 of the 1967 Act that: 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and 2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Endnotes

1. Exhibit H of the trial.
2. Exhibit J of the trial.
3. T 38.46-39.6.
4. T 100.28-.30.
5. T 112.20-.33 and T 114.28-.30.
6. T 16.17-.22.
7. T 60.12-.14.
8. T 60.16-.18.
9. T 60.30-.39.
10. T 62.27-.32.
11. T 62.34-.43.
12. T 39.18-.27.
13. T 41.5-.7.
14. T 41.13-.27.
15. T 42.3-.8.
16. T 42.16-.27.
17. T 42.29-.30.
18. T 95.32- 106.45-.47.
19. T 27.41-.47 and 47.19-.28.
20. T 71.45-.46.
21. T 106.45-.47.
22. T 12.8-.13
23. T 166,27-,32
24. T 16.24-.29.
25. T 16,31-.32.
26. GTA is also described as Grand Theft Auto
27. T 16.34-.50.
28. T 17.11-.13.
29. T 18.32-.34.
30. T 19.28-.29.
31. T 19.33-.34.
32. T 58.10-.22.
33. T 19.48-20.18
34. T 63.20-.29.
35. T 20.23-.28.
36. T 20.38-.40.
37. T 20.46-.48.
38. T 21.1-.5.
39. T 21.17-.37.
40. T 58.24-.28.
41. T 58.30-.32.
42. T 22.3-.4.
43. T 22.16-.18.
44. T 22.28-.32.
45. T 22.38-.41.
46. T 22.43-.46.
47. T 22.48-23.4.
48. T 56.18-.27.
49. T 27.1-.3.
50. T 23.22-.28.
51. T 23.30-.41.
52. T 23.43-24.2.
53. T 24.4-.24.12.
54. T 24.14-.27.
55. T 24.36-.38.
56. T 24.48-.50.
57. T 25.14-.32.
58. T 25.34-.37.
59. T 25.43-.45.
60. T 25.47-26.2.
61. T 26.4-.6.
62. T 26.11-.16.
63. T 26.8-.16.
64. T 27.5-.8.
65. T 58.47-59.24.
66. T 27,10-.12.
67. T 27.14-.17.
68. T 56.33-.41.
69. T 56.47-.50.
70. T 27.22-.25.
71. T 27.27-.29.
72. T 27.31-.35.
73. T 77.35-.40.
74. T 77.42-.46.
75. T 77.48-78.2.
76. T 78.5-.8.
77. T 78.14-.18.
78. T 78.20-.24.
79. T 78.26-.50.
80. T 79.29-80.13.
81. T 110.8-.22.
82. T 85.34-87.13 and T 92.49-93.1.
83. T 87.41-.43.
84. T 88.11-.22.
85. T 57.32-.39.
86. T 57.41-.44.
87. T 116.4-.11.
88. T 103.6-.23.
89. T 115.40-.48.
90. T 91.20-.28.
91. T 43.32-.40.
92. T 46.34-.41.
93. T 46.43-.47.
94. T 46.1-.47.
95. T 47.9-.13.
96. T 47.15-.17.
97. T 47.49-48.6.
98. T 99.5-.8.
99. T 96.44-.47.
100. T 96.49-97.1.
101. T 97.14-.16.
102. T 97.18-.20.
103. T 97.22-.24.
104. T 106.49-107.6.
105. T 107.8-.17.
106. T 107.23-.26.
107. T 107.28-.33.
108. T 107.35-.42.
109. T 108.24-.35.
110. T 100.49-101.1.
111. T 48.31-.47.
112. Reproduced in appendix.
113. T 49.35-.43.
114. Reproduced in appendix.
115. T 50.21-.26.
116. T 65.1-.16.
117. T 65.41-.45.
118. T 65.47-.49.
119. T 66.35-.39.
120. T 66.44-.47.
121. T 67.5-.48.
122. T 67.45-.48.
123. T 96.34-.36.
124. T 96.41-.42.
125. T 97.3-.5.
126. T 103.50-104.18.
127. T 54.9-56.50.
128. T 141.6-.8.
129. T 134.40-135.15.
130. T 135.28-.33.
131. T 135.35-.41.
132. T 135.43-.49.
133. T 136.8-.17.
134. T 136.19-.25.
135. T 136.27-.38.
136. T 136.39-.41.
137. T 147.43-.48.
138. T 148.8-.13.
139. T 148.15-.18.
140. T 155.26-.30.
141. T 155.43-.45.
142. T 136.47-.49.
143. T 137.1-.2.
144. T 137.4-.9.
145. T 137.24-.28.
146. T 137.38-.40.
147. T 137.38-.49.
148. T 159.33-.43.
149. T 138.4-.7.
150. T 138.15-.28.
151. T 138.30-.32.
152. T 138.34-.35.
153. T 138.45-.48.
154. T 138.50-139.2.
155. T 149.5-.11.
156. T 149.16-.17.
157. T 149.19-.23.
158. T 149.19-.26.
159. T 149.28-.30.
160. 140.4-.9.
161. T 140.34-.41.
162. T 140.34-41.4.
163. T 141.6-.8.
164. T 141.48-.49.
165. T 142.1-.8.
166. T 142.10-.11.
167. T 144.33-.34.
168. T 149.36-.40.
169. T 149.42-.46.
170. T 150.3-.5.
171. T 150.18-.39.
172. MFI 7 of the trial at p 7.
173. T 155.47-.50.
174. T 156.3-.7.
175. T 167.23-.35.
176. T 167.35-.42.
177. T 167.47-.49.
178. T 177.21-.25.
179. T 170.10-.16.
180. T 170.18-.19.
181. T 171.4-.13.
182. T 171.15-.17.
183. T 171.19-.23.
184. T 172.39-173.5.
185. T 177.44-.47.
186. T 177.48-178.1.
187. T 178.12-.17.
188. T 178.19-.23.
189. T 178.25-.26.
190. T 179.10-.24.
191. T 179.10-.13.
192. T 173.12-.17.
193. T 173.19-.21.
194. T 173.23-.24.
195. T 173.26-.31
196. T 173.37-.39.
197. T 173.44-.46.
198. T 173.48-.49.
199. T 174.1-.3.
200. T 174.5-.21.
201. T 185.46-.49.
202. T 175.1-.23.
203. T 176.4-.13.
204. T 183.46-.50.
205. T 184.5-.16.
206. T 185.1-.15.
207. T 185.17-.19.
208. T 185.32-.37.
209. T 185.43-.44.
210. T 186.1-.18.
211. T 186.20-.26.
212. T 186.28-.29.
213. T 187.16-.25.
214. T 187.31-.33.
215. T 187.35-.39.
216. Exhibit 1 on costs application.
217. Exhibit B on costs application.
218. T 43.32-.40.
219. T 47.49-48.6. 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: 03 August 2022