27 Job DCJ then turned to deal with the various charges in the indictment dealing, in the first instance, with the elements to be established in relation to each of those charges, and then dealing with the evidence which had been tendered, on the one hand, by the Crown and, on the other, by the Appellant in respect of each of those charges. In the early stages of his cross-examination of ZM, counsel then appearing for the Appellant had pressed ZM with his apparent failure to complain earlier of the Appellant's alleged conduct toward him and, as I have earlier recorded, sought to establish that, because of ZM's resentment of the Appellant's general conduct toward him, he (ZM) had fabricated his complaints against the Appellant. It is against that background that Job DCJ said, in the course of his summing-up (pp. 31-34):
"He went down to Sydney and gave descriptions in Kings Cross, Manly and was asked, 'Have you ever told your mother about any of these incidents' He said 'No'. He said 'I didn't tell no one'. Said 'Why didn't you tell her about the first one?' He said 'I don't know, it was just embarrassing. I didn't know how she'd take it, I was just a kid then, I didn't know who to tell like'. He did say later on that he mentioned it to a prostitute he had slept with on his birthday when his mother had given him some money. That he met her and he told her something about it. I think it words something like 'My father's sicko, he makes me do sick things', words to that effect.
Later one he said when he went away he talked to a few people, like a Community Service Centre, either the Catholic Church or the Community Centre. And members of the jury he obviously went to the police, as we know, otherwise none of us would be here about this now, and made statements to the police.
Members of the jury, he did not make what is called a complaint until many years later. He said the reason for that was because first of all was (sic) under the authority of his father and he did not know what to do about it, but he ran away he said he got onto the drugs, got into rehabilitation at one stage and then he told somebody about it, was asking (sic) what he was doing and he told them what had happened with his father, and they told him he would have to clean himself up first before he did anything about it.
Members of the jury, it is a matter for you as to what you make of the fact that he did not complain but it is a matter which you should take into account in assessing his credibility that he did not make a complaint until some considerable time later and he did not tell it to anybody in authority until as I said, many, many years later. That is a matter which you must take into account in relation to his credibility.
So what the defence puts to you is that the delay is inconsistent with those things happening. Members of the jury I am also required to warn you that the absence of a complaint or delaying complaining does not necessarily indicate that the allegation that the offence was committed was false. I am also required to inform you that there may be good reason why a victim of sexual assault may hesitate in making or may refrain from making a complaint about this assault. Now you may think that that is all perfectly obvious. There may be good reasons to delay in complaining or for not complaining at all.
The question for you to consider is whether in this case, the complaint, well there was no real complaint, the absence of complaint is consistent with the allegations or whether they throw doubt upon those allegations. What the young man said well, it was my father, and then he ran away and did not do anything about it and he said, I think in evidence, that he was also reading about sexual assaults and he decided then to complain and he rang up I think Operation Paradox and then later on he did.
Members of the jury, you were in Court. You saw him give his evidence and it is for you to judge him. That is what I told you at the beginning of the trial. It is for you to look at the witnesses and assess their evidence. He was cross-examined about that, that he had not gone to the police. He was asked why not? One of his answers was 'Well I was sort of embarrassed. I didn't want to go up to some stranger and tell them what happened to me?' He said 'Well there was a prostitute'. 'Yes I know'. 'She was a stranger.' 'Yes'. Well it is for you to consider whether that is a matter as to telling a prostitute would be the same as going to somebody in authority.
And you also heard the Crown address you on this. The complainant said 'Why would I make a story up. Waste all this time for taxpayers money and come here and accuse if he was such a good father. Why would I be sitting here at this time mate, you tell me'. Well you have heard the criticism of those answers made by (Appellant's counsel) as the passion that was involved. And I think it came out perfectly clear to you that he certainly hates his father.
The young man was cross-examined by (Appellant's counsel) about his father trying to do the best for him at school but he also made him work, going to the restaurant up till - I think the young man said about 11 o'clock at night. Then when he was at Newcastle working with him at night time in the cleaning business, and the young man said he hated it. Well members of the jury, these are factual matters for you to consider and you will give (Appellant's counsel's) submissions the weight you consider that they warrant. That if he was doing poorly at school, if it be the case, and he said it was, the fact that he was going to school and staying up until 11 o'clock at night when aged nine years of age, you perhaps would not think he would be doing particularly well at school.
However, it is quite clear that (the Appellant) is from a different culture, as you have heard, from us. He is obviously a man you have heard who has worked very hard. And at one stage he did make a lot of money. He also, at Newcastle, again when the boy was still at school, he was taking him at night time to do the cleaning and the boy disliked that. And the submission to you from (Appellant's counsel) is that you would take those into account because he hated his father so much, that he has made up his mind to make these false allegations. You remember it was, put quite passionately, he said he wants to see him, if you like, pay for what he has done because he said 'He has been sexually abusing me all these years'.
Of course members of the jury, it is a matter for you to decide but if you are satisfied beyond reasonable doubt that he commit these particular offences, it would be a matter which you could understand the person would be very much aggrieved towards his father."