R v Poudel [2022] NSWDC 472 | Case summary

District Court of NSW|2022-09-27|Before: Dr J, Dr P

VERDICT on judgment Crown evidence on the Voir-Dire Evidence of Professor T Rosenfeld Evidence of Dr J Obeid The Crown's submissions in relation to admissibility of the ERISP The Accused's submissions in relation to admissibility of the ERISP Determination Crown submissions on whether the recorded interview of NH is admissible pursuant to s65 of the Evidence Act The accused's submissions in relation to the complainant's statement The applicable legislation Relevant legal principles Determination Whether the recorded statement should be excluded pursuant to s137 of the Evidence Act The Crown evidence at trial Evidence of Bindiya Maharajan Evidence of Ms Nikita Guatam-Poudel Evidence of Dr EV Freedman Evidence of Prabina Chhetri Evidence of Annastacia Wainaina Evidence of Dr P Walker Evidence of Ms Lee Carissa Evidence of Detective Senior Constable Sutton Evidence in the accused's case Directions of law Count 1 Count 2 Sexual assault consent knowledge direction Sexual Intercourse Consent Knowledge Direction pursuant to s293A of the Criminal Procedure Act 1986 - differences in complainant's accounts Complaint evidence direction Expert witness evidence direction Section 292C of the Criminal Procedure Act 1986 direction Markuleski multiple counts direction - R v Markuleski (2001) 52 NSWLR 82 Right to silence direction Failure of accused to give evidence direction Liberato direction in respect of the accused's evidence Lies used at evidence of consciousness of guilty direction Good character direction Direction pursuant to 165(1)(a) & (c) of the Evidence Act 1995 Findings of fact Determination

VERDICT on judgment

On 27 September 2022 the accused pleaded not guilty upon arraignment to two counts on the Indictment as follows: 1. On 28 February 2020, at Neutral Bay in the State of New South Wales, he had sexual intercourse with NH without her consent and knowing that NH was not consenting. This was an alleged offence pursuant to s61I of the Crimes Act 1900. 1. On 28 February 2020, at Neutral Bay in the State of New South Wales, he intentionally sexually touched NH, without her consent, and knowing that NH was not consenting. This was an alleged offence pursuant to s61KC(a) of the Crimes Act 1900.
There were two pre-trial issues to be determined before the commencement of the trial proper. They concerned the following matters:- 1. The admissibility of the ERISP interview of the accused by Police on 26 October 2020; and 2. Whether the Crown be allowed to adduce into evidence the statement of NH recorded on 2 March 2020 pursuant to s65 of the Evidence Act 1995.
Following the hearing as to these preliminary issues the parties agreed that I would deliver my decision in respect of each issue on 30 September 2022, and so as to allow the trial to proceed expeditiously, I would publish my reasons for so deciding in my verdict on judgment, it being a judge alone trial.
On 30 September 2022 I made the following orders:- 1. That the ERISP interview of the Accused by Police on 26 October 2020 be admitted into evidence save for Q54-A66. 2. That the Crown be allowed to adduce into evidence the statement of NH recorded on 2 March 2020 pursuant s65(2)(b) or (c) of the Evidence Act 1995.
What follows is a summary of the evidence on the voir-dire, and my reasons for those orders.

Crown evidence on the Voir-Dire

The evidence relied on by the Crown on the voir-dire comprised the following. Exhibit A was a bundle which included copies of the submissions relied on by the parties, the s67 notice dated 15 March 2022 (which was not in issue), a transcript of the police interview of the complainant NH recorded on 2 March 2020, and four reports from Adjunct Professor Tuly Rosenfeld dated 19 November 2021, 23 November 2021, 5 February 2022 and 15 February 2022.
Exhibit A also included a transcript of the ERISP interview of the accused on 26 October 2020 and a copy of a hand-written letter of the accused addressed to his supervisor at the Lansdowne Gardens Nursing Home ("LGNH") dated 29 February 2020.
Exhibit B was a bundle of additional witness statements which the Crown intended to rely upon at trial.
Exhibit C was the disk of the accused's ERISP interview on 26 October 2020 which was played in court.
Exhibit D was the disk of the recorded interview of the complainant NH with police on 2 March 2020 which was also played in court.
Exhibit E on the voir-dire were two CT brain scans of the complainant taken on 19 November 2018.
The accused relied on a bundle of documents on the voir-dire which became Exhibit 1. It comprised Exhibit 1.1 to Exhibit 1.17 and included records produced on subpoena from the LGNH in respect of the complainant which were referred to as "Progress Notes". It also included an Incident Log (Exhibit 1.16) and a report of Dr John Obeid, consultant physician and geriatrician dated 19 July 2022.
Exhibit 2 was an Assessment Summary generated on 18 July 2018 relating to the complainant NH.
Exhibit 3 was a document headed "Clinical Frailty Scale".
The evidence of Professor Rosenfeld and Dr Obeid was relevant to the second issue on the voir-dire, namely, whether the statement of the complainant recorded on 2 March 2020 was admissible pursuant to s65 of the Evidence Act.

Evidence of Professor T Rosenfeld

In his first report, Professor Rosenfeld was asked for his opinion on whether NH had a diagnosis of cognitive impairment, and if so the categorisation of such impairment, it's severity and whether that impairment had any impact on her ability to recall and/or convey information about recent events, events that occurred around February 2020 or historical events. He examined NH on 17 November 2021 and took a medical history which he described as "disjointed and at times disconnected". He described her as being consistent a number of times when she recounted the incident subject of the charges.
Professor Rosenfeld reviewed documents provided by Royal Prince Alfred Hospital ('RPAH') relating to a fall the complainant suffered on 30 May 2018. In that fall she suffered a head strike and a CT brain scan taken soon after her admission to hospital showed frontal lobe contusions, a small subarachnoid haemorrhage and non-displaced skull fractures. Surgical intervention was not required however she was discharged for inpatient rehabilitation on 4 June 2018.
Professor Rosenfeld noted that the complainant was admitted to Balmain Hospital from 12 July 2018 until 19 July 2018 when she was then moved to a transitional care unit. She was discharged to LGNH on 21 September 2018. No formal assessment of her cognitive function was documented.
Professor Rosenfeld opined that the complainant suffered from dementia most likely related to vascular brain disease associated with her diagnoses of cardiovascular disease, coronary artery disease and atrial thrombus heart disease. He opined that this condition was further complicated by a head injury with frontal and parietal contusion and subarachnoid haemorrhage. He opined that her dementia was of a moderately severe degree and that she was able to partially recall recent events. At the time of his examination her ability to recall the incident in February 2020 was "clouded and imprecise".
Professor Rosenfeld opined that at as a result of cognitive impairment and dementia, she had "an impairment in her ability to understand and respond to questions in a manner that properly and consistently draws on her impaired recollections of occurrences and the sequence of events from the past". Her reduced ability was due to the presence of brain disease associated with vascular brain disease as well as the effects of the brain injury suffered in the fall. Both affected the frontal lobe brain function. He noted a disparity in her ability to recall some events and not others. He opined, "a significant factor is that degree to which the experience was memorable because it was a major event, traumatic, or a major life event". Professor Rosenfeld went on to set out measures that would reduce the impact of her cognitive impairments on her giving evidence.
The complainant died on 30 January 2022 and Professor Rosenfeld was asked to provide a supplementary report in which he was asked for his opinions as to whether it was possible to reliably diagnose a cognitive impairment such a dementia retrospectively, and if so the status of the complainant's cognitive impairment in late February/early March 2020 and in March 2021 and her competence or capacity as at those dates. At the time of this report Professor Rosenfeld was qualified with the Progress Notes in Exhibit 1 and a number of witness statements. In a report dated 15 February 2022 he opined that it was likely that the complainant suffered from an underlying brain disease for a considerable period even prior to the fall and head injury from which she suffered. At the time of the alleged offences Professor Rosenfeld was of the opinion that the complainant was suffering from cognitive impairment and dementia associated with vascular disease that was likely of mild severity.
Professor Rosenfeld had reviewed the video of the complainant's statement to police on 2 March 2020. He stated that in his opinion she was able to provide a reasonably clear and detailed account of the history and the events that took place. He noted that she was occasionally repetitive and on several occasions tangential in response to the questioning.
Professor Rosenfeld expressed the following opinion in respect of the complainant's recorded police interview:- "In my view, having seen the video interview, the clinical notes, the affidavit supplied by the nurses that attended her, it is more likely than not that [NH] provided an accurate account of the events that occurred during the incident. The account that she provided is likely to have described real events that occurred to her - that [NH] suffered from a dementing illness makes it less likely, in my opinion, that the events that she recounted were not based in her experiences at that time. That she recounted those events to attending nurses soon after and then recounted those events to others, the doctor and the interviewer not long after, more likely than not indicates that they occurred and the veracity of her recollections of those events."
Professor Rosenfeld gave evidence that his first report was concerned with primarily his opinion as to whether or not the complainant had competence to give evidence at trial. His supplementary report dated 15 February 2022 addressed more fully the issues around her cognitive state and level of impairment in March 2020. Professor Rosenfeld gave evidence that between her interview on 2 March 2020 and when he examined her in November 2021 her dementia had developed and as at 17 November 2021 she suffered what he described as "moderately severe impairments". She had for example scored poorly on the Mini-Mental State Examination ('MMSE'). He was asked to explain his opinion that as at 2 March 2020 her cognitive function and severity of her dementia was mild. He gave the following evidence:- "Well, she was able in that interview, as I explained, she was clear and provided a detailed account of the events that took place. She was occasionally repetitive and occasionally she was tangential. In other words, she would go off and keep on talking about a number of things that weren't directly related to the original question and I noted that the interviewer, the police person that was doing the interview, had to repeat questions and obtain clarification, the history, but I thought at that time that her evidence, and that reflects her cognitive process, was consistent and it had clarity around details on the incident. So, my conclusion was that even though she was likely suffering from cognitive impairment, problems with memory and thinking, she was still able to clearly outline the history that she was providing in response to the questions."
Professor Rosenfeld was asked about the two brain scans taken on 19 November 2018 (Exhibit E on the voir-dire). He gave evidence that the scans did not correlate directly with cognitive status and did not inform the functioning of the brain, rather the scans were an extra test to determine what the underlying pathology or brain disease state was, which may explain findings on clinical assessment. The main features shown on the scan were the blocking of the small blood vessels in and around the brain. Professor Rosenfeld was asked whether the scans informed the opinions he expressed in his report about whether or not the complainant had an underlying vascular disease causing some cognitive impairment. He gave the following evidence:- A. It - it informs me strongly that she does have underlying vascular brain disease as I've outlined in my report, she has risk factors for that, and I see - in fact, every patient that I see, I actually visualise the brain scans and the - it's entirely consistent with the presence of vascular brain disease. Q. In relation to the second scan, can you inform the Court what it is that you see on that scan, and what it tells you - noting what you've said earlier about cognitive state, I'll ask you what it tells you about any underlying disease that this scan informs you of? A. The - the - you're talking about the one that says, "Frontal lobe atrophy shrinkage"? Q. That's the one, yes. A. Yep. So, that scan is taken through - it's a different view, so in this case, it's looking through the brain as though you're looking up through the head from the feet upwards. So it's looking through an axial - a transverse cut across the brain in that plane, and again, the white on the outside is the skull, anything that's black is the cerebrospinal fluid which is not only with the inside part of the brain, but also around the outside, the black areas around the outside are the sulci or the crinkle - the wrinkles of the brain, and so they look black, as well. And the brain itself is the - the grey material that is brain itself. And so, the features - the main features that I'm seeing in this scan is the - what I would consider quite marked or enormous enlargement of the ventricles, which is the part of the black material on the inside of the brain, and so, they would normally, in a well unaffected person be far smaller, and not as blown up - they look like two balloons in this picture, and the reason that they're like that is because the brain has shrunken around the ventricles and the ventricles have basically filled with CSF to replace the - the space. It - the other feature is that it's apparent that you can see the front part or the top part of the brain where I've highlighted "frontal lobe atrophy or shrinkage". The - the shrinkage is more prominent in that part of the brain, and again, that shows the presence of shrinkage in parts of the brain that undertake executive - think - higher level judgment and executive function, it's the front part of the brain called the frontal lobes, and in my view, that part of the brain is slightly more shrunken than other parts, and you can see that there's some space, black material, in the front of the - or the top of the picture, although one has to take into consideration that if a patient is lying on their back in the scanner, the - the brain will tend to fall - fall down to the back, obviously, because of gravity, and so that space is usually enlarged more than the back. But in this case, it's enlarged more so than I'd expect, there's more space and the shrinkage of the brain is greater than I would accept as normal.
Professor Rosenfeld was asked about his commentary in his first report about a brain scan report of Dr Brunacci in May 2018 which informed his opinion that the complainant suffered mild atrophy and chronic vascular disease. The features described by Dr Brunacci are what he referred to as "a shrinkage chronic vascular disease".
Professor Rosenfeld adhered to his opinion that the complainant was consistent in describing the events that are the subject of the alleged offences upon her assessment on 17 November 2021 with what she had told police in March 2020. He was asked as follows:- Q. Is it unusual to go from a mild cognitive impairment to a moderately severe cognitive impairment in a timespan from 2 March 2020 through to 17 November 2021 when you saw her? A. Yes. Yes, it depends on the nature of the underlying problem. However, I know that [NH] suffered from a number of risk factors for heart blood vessel disease, and in fact she had previously been on what are called anticoagulant medications which reduce the likelihood or risk of little strokes in people who are so predisposed because of heart and blood vessel disease. One of the problems with anticoagulants, which are blood thinners, is that if you fall while you're on a blood thinner or particularly if you hit your head, there's a real risk of having bleeding or haemorrhages into the brain, and that's exactly what happened to [NH], she had recurring falls and haemorrhages in the brain, and in fact in my re-reading of my notes, it seems that one of the things that happened during her hospitalisation was that those anticoagulants were stopped and so, in answer to your question, it's more likely than not that she continued to have little blood vessel events and strokes between the time of her hospitalisation and later because she was no longer on a medication that may have helped, not completely extinguished but may have helped to reduce the likelihood of little strokes occurring. Not only that, but even in Alzheimer's disease there is a continuing progression of brain disease and in my experience in many, many of these patients so suffering a progression over a year or two is par for the course, it's very, very common. Particularly, I if I might say, when you start the observations, so when she was first seen and had brain scans, she was already suffering from significant brain disease. So, the change from then to only six months of a year later, you've already passed the threshold of having significant disease. Every little bit of extra little stroke or progression of Alzheimer's disease has a much greater effect.
He was subsequently asked:- Q. Did her ability to give you a history consistent with what you saw in the recording of March 2020 inform you at all about her ability to recall accurately events in March 2020? A. Yes, I think in March 2020, soon after the events, she was able to provide a clear history and that those - that recollection and her recall of the events was - was consistent with what she described when I saw her, if that answers the question. Q. The fact that consistency existed despite a worsening of her cognitive impairment, does that inform you at all about her cognitive impairment in regards to memory of those events? A. I would have expected that after a year her memory of those events would have been less clear because of the - the almost year that would have gone from one to the other, however, they were consistent to the point where her memory had been retained.
Professor Rosenfeld was also asked whether the opinions expressed by Dr Obeid in his report dated 19 July 2022 caused him to change his opinions to which he replied "No". He gave the following evidence:- Q. If he were correct, that her cognitive impairment was due to traumatic brain injury as opposed to her vascular disease causing progressive degeneration, would your assessment, having viewed the video that was recorded in March 2020, that there's a mild severity of cognitive impairment change at all? To rephrase, if he's correct as to the nature of the cause of the cognitive impairment, would your distinction as to how severe the impairment was change? A. No. Well, yes, if - if he - if Professor Obeid was correct in that she, at the time of the event, suffered from only cognitive impairment due to trauma, I would not have expected that there would have been such a significant change in her overall function, in her cognitive function, and her ultimate death. She has suffered from a progressive degenerative neurological disease, and that is not consistent with purely the effects of the traumatic brain injury, and neither would it be consistent with the changes evident on the brain scan. Q. Do you agree with Dr Obeid's opinion that it was not vascular dementia but entirely as a result of the brain injury that she suffered cognitive decline? A. Strongly no.
Professor Rosenfeld was asked about Dr Obeid's opinion that the complainant's police statement could have represented a fixed delusion or falsely recalled memory as follows:- Q. He comments on your opinion that [NH] provided an accurate account of events that occurred during the incident on your opinion of having watched the video, that it could have represented a fixed delusion or falsely recalled memory rather than an accurate account. Are you able to comment on that? A. A delusion is a very specific type - it's a description of a very specific psychiatric or mental problem, and a delusion is - is a false belief that is held despite evidence to the contrary, and to call her evidence a delusion would require that she had some other delusional behaviours and it would require that she had a psychiatric illness or an illness that - that - that had other types of delusions, and it's very easy to say that somebody's deluded by - by just dismissing their - their ideas, but in this case it doesn't meet the criteria of a delusion in my view because there's no clear indication that - that it couldn't possibly have happened. So, a delusion would be if she was saying somebody did something when they weren't even in the vicinity or in the country. So, a delusion is when you think the FBI is listening in on you and there are microphones in your home. It just doesn't have that character of a psychiatric delusion. So, yes, you can pull that out of the blue, but I don't see any reason to propose that as a reasonable explanation.
In cross-examination Professor Rosenfeld was asked about a number of entries in the Progress Notes from LGNH. He was asked about an incident on 13 March 2021 in which it was reported that another resident kicked her in the dining hall. The complainant reported she had been kicked in the leg however review of CCTV by staff established that she was not kicked. Professor Rosenfeld gave the following evidence:- A. My comment is that [NH] suffered from a dementing illness and it's the nature of dementing illness that there are ups and downs, and some days are worse. I think you mentioned before that she had suffered a urinary tract infection and so there are a range of factors from day to day that make people worse. So for instance, in people with dementing illness, there's this syndrome called sundown, so at the end of the day they become a bit less oriented, more confused, sometimes belligerent and difficult, and that's when they may see inappropriate things or have hallucinations as you've referred to. But those abnormalities, the hallucination - hallucinations or even delusions about other people "Going to come in and attack me" or something, they come and go, and when the fictional - when it's the light of day comes, they disappear and so it's almost - it's - it's very common, it's almost the norm that people suffering with dementia have good days, bad days, and pretty much anything that upsets the balance makes them worse. It's not - it doesn't, it - that really, all those things you're just talked about confirm that [NH] suffered with a dementing illness and that those behaviours were part and parcel of that illness, and the ups and downs were part of that. What I saw in the interview, there was no indication that [NH] was delirious as - as in suffering an acute disruption of her orientational alertness. So she was there and present and able to give an account of the situation and she wasn't distracted and confused, and so at the time I saw her and what I witnessed in the interview, she wasn't suffering from hallucinations or delusions or - or an abnormality in her - her - in her alertness which would suggest the presence of an acute delirium. But those episodes, to the extent that they are well-documented and true, if they are, then those episodes will be very consistent with a dementing person who is suffering episodes of delirium. I can't explain why the CCTV didn't show an abnormality, but it's not - I mean, in my experience over many years, it's not uncommon for an older person to have a - a remembrance, a recall of an event that actually did happen, and people around them say it didn't because of the circumstances and the timing was a little bit different. Again, if somebody is suffering from dementia, their ability to interpret and recall the - the details of when something happened may have been slightly different and so she may have been kicked or kicked and it wouldn't have come out on the CCTV because it may have occurred in a different place, so I can't explain specifically because I wasn't there.
Professor Rosenfeld was referred to a further matter noted in the Progress Notes where the complainant claimed another resident had stolen some jewellery from her. The jewellery was found by staff in her bathroom. He was asked:- Professor, it turns out that the necklace was not missing. How do you explain, in your opinion, [NH] being one hundred percent sure that another resident stole that necklace? A. Forgetting where you've put things, losing things, blaming other people for it is very common. In fact, it's such a common finding and it causes enormous frustration for carers and family, and so the - the - it's called - it's - it's called paranoid beliefs. It's not really paranoid, it's really that you've forgotten where you've put something and the only way you can figure it out in the disordered, impaired brain is to construct a reason for that, and - and so if there's - if there's some possible explanation, then you blame other people. So it's a very common finding and it's - it's - it's - you see that so often because one of the earliest features of dementing illness is that you tend to forget things and lose things, and because there's no obvious explanation, you come up with all sorts of alternatives and start blaming the cleaner and putting things away and locking up the doors and locking up. So it then leads to a whole lot of other irrational behaviours. So it's not at all uncommon in a person such as [NH] living in the nursing home to be exhibiting those sorts of behaviours, blaming other people and misplacing things, and misinterpreting and forgetting what's actually going on, and so that's - to me, that's quite different to constructing a very elaborate, clear picture of an event, so that's quite distinct from [NH] saying, "I actually saw Mrs Smith come into my room last night. She went through my things, picked out a necklace, and left with it." So that's very different, in my mind to the situation we're talking about. It's just there's a distinction, but those symptoms - I suppose that's why I didn't, in my report, go through and basically rewrite the Progress Notes and pick out every single event. To me, it's part and parcel of a progressive dementing illness.
Professor Rosenfeld was then asked about a further matter reported in the Progress Notes where the complainant accused another resident of stomping on her toe. Again, CCTV footage revealed no physical altercation occurred. When asked about that incident Professor Rosenfeld gave the following evidence:- A. That's the same - my interpretation is similar in that she misinterpreted the other lady touching or standing or moving onto her feet and that it was exaggerated into her misinterpretation of the event. That's all. Yeah, that's what I think. Q. But an exaggeration is based on something occurring. Wouldn't you agree? A. Yes.
Professor Rosenfeld was asked about another incident in which the complainant reported an injury on her right knee caused by a fall in the TV Room. Investigation of the CCTV by staff revealed that no fall took placed. Professor Rosenfeld was asked:- So, Professor, we have here an incident that [NH] recalls about another resident "who did not even sit near the TV room". Does that fall into your definition of delusion? A. Again, it's not a fixed recurring belief. So, not really a delusion but a misinterpretation, a false information. She doesn't know how - presumably there was actually an abrasion on her knee and she can't explain it. So, she recalled another event or she - I don't know where it came from, but I presume there was - no, there was an abrasion there and we don't know how it occurred. I was going to say it's almost - again, such a common thing that an older person will come in with even a fracture or an injury and they will completely deny that they've had a fall or ever had an injury and they say, "There's nothing wrong with me". So, that's why we rely so much on witnesses. We don't usually have CCTV of every fall, but you can't rely, because of the dementia, on the history provided by such a person so suffering and so, if I had to describe all the incorrect information that I'm provided daily by older people, I'd be calling everyone delusional and we don't. We say they're cognitively impaired, demented. They don't know or don't understand or can't properly recall what occurred and, yes, another possibility is, as you're alluding to, that she has recurring delusions that, again, for it to become a recurring delusion - for it to become a delusion I would expect that those - that same belief would be a recurring thing. So, everyday she would say that, "Mrs Smith knocked into me and hit me and the reasons that I'm here is because," so that would become a recurring fixed delusion and then I would call it a delusion, but if somebody says that something happened and then when you check, it didn't actually happen, that's misinformation. That's dementia. That's lack of recall. That's lack of understanding, misinterpretation of events, not necessarily a delusion. Q. But, Professor, in this case, the incident that I just outlined to you, we have a narrative here that has been given to the staff that she rolled to her right side so that she would be on her back, and she was able to grab onto something and was able to stand up. What is that an exaggeration of? A. In my experience, it's more likely that at some point such an event occurred. Q. You're saying that this event may have occurred at some other time? A. Yes. Q. Not necessarily on this particular day? A. Correct.
Professor Rosenfeld was questioned about the symptoms of frontal lobe damage as follows:- Q. Now, I want to ask you, Professor, about frontal lobe damage. The symptoms of frontal lobe damage, Professor, would you agree with me they are individuals being aggressive? A. Yes. Q. Confabulations? A. Not characteristically, but confabulation is more a symptom of severe memory impairment. Q. Irrational behaviour? A. Yes. Q. Impulse control issues? A. Yes. Q. Wouldn't the instances that I just outlined with you, wouldn't they also fit into the same category as symptoms of frontal lobe damage? A. Yes, they could be associated with frontal lobe damage. Q. At the very least, what we can say - you can agree or disagree with me, Professor - is that these instances that were outlined by [NH] to the staff members at Lansdowne Gardens were inaccurate? A. Yes. Q. It did not happen at that particular time that [NH] said it happened? A. Probably, yeah. Q. At that particular time that [NH] said it happened? A. Probably, yeah. Q. Wouldn't there be a possibility given this is the pattern of behaviour of [NH], that the allegations that she's made on 28 February 2020 also fall into that category? A. It - it's a possibility, although it wasn't my impression from the interview and the clarif - the clarity which - with which she spoke about it. … Q. It seems that the incidents that was outlined that I just outlined to you, they were very clear in terms of the notes of what [NH] was alleging? Wouldn't you agree? A. They're not as clear as the history that she provided me. Q. And would these instances that I just outlined to you, they turned out to - there's no independent evidence to support it, such as CCTV; correct? A. Correct.
Professor Rosenfeld was cross-examined on Exhibit 2, the assessment summary generated on 18 July 2018. He disagreed that the content of that report indicated that at that time the complainant was functioning "ok".
It was put to Professor Rosenfeld that the frontal lobe atrophy shown in the scans (Exhibit E on the voir-dire) were consistent with the injuries resulting from the complainant's fall on 30 May 2018. He gave evidence that the frontal lobe atrophy was not caused by the fall but would have been worsened by the injury caused in the fall. Professor Rosenfeld disagreed that the pathology shown on the scans demonstrated frontal lobe damage which resulted in the complainant's confabulations and behavioural disorder. He gave the following evidence:- A. I - I - in my view, the - the confabulations, the behavioural disorders, the - the impairments in cognitive function and their worsening was due to the progression of dementia, and that the frontal lobe damage would have the - the injuries and the frontal lobe damage would have worsened that to a degree at that time when she came into hospital, but that those - the - the damage caused by the frontal lobe injury would have improved - and it did, that's why she went to rehabilitation at Balmain Hospital - and so, she was temporarily or impermanently worsened by the fact that she had a head injury, but she was admitted to hospital very sick with those injuries, and then, she was finally discharged home. And so, she had a - a reduction in her functioning in her cognition with the injuries, and then, she would have improved as people do when they have injuries. But I've given my view that underneath all that, there was underlying brain disease, atrophy, shrinkage, and that that was something the - particularly the rest of the atrophy in the rest of the brain and the enlarged ventricles that are demonstrated on the scan, that was unlikely - I can't conceive that that was caused by the frontal lobe injury.
Professor Rosenfeld was also questioned about a change in the complainant's MMSE scores namely 21/30 in January 2021 and 23/30 on 18 November 2021. He disagreed that this was a significant improvement. He agreed that the MMSE did not test function of the frontal lobes.
Professor Rosenfeld was cross-examined on his evidence that the matters in the Progress Notes could have happened at another place or time because of her cognitive problems. He gave the following evidence:- Q. I asked you that it's possible, is it not, that the allegations that [NH] set out on 28 February 2020 are also inaccurate? A. Of course it's possible and having interviewed thousands and thousands of older people over 40 years, that's certainly a consideration, but I came to the view, having seen her directly and asked her about it, that it wasn't such. Q. Is it possible that what [NH] said occurred to her on 28 February could've happened to her maybe at some other time or some other circumstance? A. Yes, it's possible. Q. She presented it to the staff as occurring on 28 February 2020? A. Yes, possible.
Professor Rosenfeld agreed with Dr Obeid's opinion that the complainant would have understood an obligation to be truthful. He was then asked:- Q. And then Dr Obeid moves on and says: "The difficulty for her would not be in terms of understanding to be truthful, but rather inaccurately recalling or understanding complex situations and/or differentiating them from delusional thoughts." Do you agree with that? A. Yes.
In re-examination Professor Rosenfeld gave evidence that the errors or mistakes of the complainant set out in the Progress Notes did not change his opinion that the complainant was more likely than not able to give an accurate account in her police interview. He was asked:- Q. Given that, do you still maintain that [NH] was able to accurately recall the events that she alleged occurred on 28 February 2020? A. The nature and manner in which she related them shows me that she was able to recall that - those events.
By leave Professor Rosenfeld gave the following further evidence in cross-examination:- Q. Professor Rosenfeld, just one final question. Is it uncommon for experts like yourself to comment on cognitive impairment and cognitive functioning with, of course, the necessary materials in front of you, without seeing the individual? A. Yes, it's very - well, I don't know about other clinicians, but I think it's generally very - the most important aspect in assessing somebody, making a diagnosis is the history, the symptomatology, the history of problems that are usually provided by witnesses, carer, care givers, documents, Progress Notes et cetera. And as I said before, most of the patients that I see in front of me, they will say there's nothing wrong with me, and so, you have to always find further information from other people, witnesses, and documents, but on the other - there is one aspect and talking to a person and actually testing them is a very useful thing to do. But again, that can be provided through notes and the clinical observations of others, provided that those others are appropriately trained.

Evidence of Dr J Obeid

Dr Obeid provided a report dated 19 July 2022. In that report he summarised the complainant's medical history from hospital records, particularly following her fall on 30 May 2018 when she was admitted to RPAH.
In respect of the recorded police interview on 2 March 2020 Dr Obeid noted the following:- 1. "NH was unable to recall when she moved into the Nursing Home (instead only repeating the suggestion made by her daughter). She was however able to recall her room number and how she chose that particular one and that she later moved to room 202. 2. NH's report of the incident on the video statement appears consistent with what she told staff, as recorded in the incident report on page 6 of the bundle labelled "Incident forms"… however it is likely that there was a very short time delay between the video statement and the report to staff (likely on the morning of 29 February 2020). 3. On one occasion NH appeared to lose track of what it was she was attempting to say, but overall she was quite fluent. 4. She was repetitive at times during the interview, suggesting a perseverative pattern of thinking."
Dr Obeid set out a number of matters relied on by Professor Rosenfeld in coming to his opinions. He opined that the head injury suffered by NH in the fall in May 2018 was moderately severe, evidenced by the fact that the fall led to her admission to hospital. He opined:- 1. It caused a fracture of the skull. 2. It caused multiple "contrecoupe" injuries including bilateral subarachnoid haemorrhages and a left frontal lobe cerebral contusion. 3. It may have caused an additional subdural haemorrhage discovered at a later time during the RPAH admission, though this may have been due to subsequent falls she had during the admission. This was suggestive of ongoing damage which may have occurred due to further brain injury and intercranial bleeding. 4. It caused a new onset of cognitive deficits, with onset immediately, or soon after the brain injury. Dr Obeid opined that there was no preceding history of evidence of cognitive impairment, relying on the ACAT assessment (Exhibit 2 on the voir-dire).
Dr Obeid was of the opinion that the fall on 30 May 2018 and the resulting traumatic brain injury was of such severity it could have caused her to provide false and misleading information, albeit unintentionally. He opined:- "The damage to the frontal lobes in particular can cause an inability to: 1. Appreciate or interpret the exact nature of events occurring around or to her; 2. Perseverate on a false recollection of events, or cause such events to merge with other events from the past; 3. Differentiate delusional thoughts from reality."
Dr Obeid disagreed with Professor Rosenfeld's opinion that NH's cognitive impairment or dementia was "most likely associated with vascular brain disease". His reasons for the disagreement were as follows:- 1. The CT and MRI scans undertaken during her 2018 hospitalisation referred to any vascular pathology as being mild. 2. Around 3.5 years prior to the assessment undertaken by Professor Rosenfeld, NH's cognition, "from all reports was completely normal"… it was unusual for a patient to progress from completely normal with minimal radiological changes to a moderately severe dementia in such a short period of time. 3. A much more likely diagnosis than a vascular or Alzheimer's dementia was the traumatic brain injury. Dr Obeid stated that the diagnosis of vascular or Alzheimer's disease was "speculative and clinically unlikely". 4. Dr Obeid found it unusual that Professor Rosenfeld concluded "the degree to which previous head injury has contributed to cognitive impairment is unclear". 5. Dr Obeid was of the opinion that NH's recall of some (or many) events was false and completely misleading. He based this opinion on the events subsequent to the alleged offences. 6. Dr Obeid did not agree with Professor Rosenfeld's statement that "the most prominent and traumatic events are more likely to be retained with clarity". He stated that people with significant brain impairment (especially frontal impairment) "are capable of well systematised delusions and confabulations. This may appear to represent "clarity" in that it is consistently repeated, but that does not make such repetitions factual". 7. In respect of Professor Rosenfeld's opinion as to NH's retained memory and understanding Dr Obeid stated:- "Whilst I agree that the presence of dementia would not impact on the truthfulness of a person's statement, in the case of dementia the issue is about the impact of the person's cognitive recall abilities and frontal lobe function, not about whether the person is being truthful." 1. In respect of Professor Rosenfeld's opinion that it was more likely than not that NH provided an accurate account of events that occurred during the incident to police Dr Obeid stated:- "This is not necessarily correct. My colleague has not explained why NH's recall of the event could not have represented a fixed delusion or falsely recalled memory, such as occurred with her numerous disagreements with other residents" 1. Dr Obeid opined that at the time she made her police statement NH did not have dementia but rather she suffered the effects of a significant brain injury which was objectively moderately-severe. This was evidenced by her inability to continue to live at home, her inability to recall personal medical facts and her propensity to have behavioural disturbances and delusional thoughts. 2. However, Dr Obeid went on to state that he did not doubt that NH would have at all times understood her obligation to be truthful. He stated:- "The difficultly before her would not be in terms of understanding to be truthful, but rather in accurately recalling or understanding complex situations and/or differentiating them from delusional thoughts"
In his evidence in chief Dr Obeid gave evidence about the two brain scans taken on 19 November 2018. His evidence was that the more prominent finding on the scans was how shrunken the frontal lobes are compared to other shrinkage in the brain. He considered that to be consistent with the frontal lobe damage suffered by NH as a result of the fall in May 2018.
Dr Obeid gave evidence that dementia is a gradually progressive neurodegenerative disease resulting in a decline in function over many years. It can not be diagnosed from radiological images but would depend on the history of the person, the progression of symptoms, Mini-Mental State testing and more cognitive testing combined with radiological images.
Dr Obeid did not have the opportunity to examine NH. He gave evidence that it was always preferable to assess and examine a patient. However, in this case he did not believe that his diagnosis would change unless there was significantly different information that he had not been provided with.
Dr Obeid was asked about [1.10] of his report where he referred to some of the instances recorded in the Progress Notes. He was asked his opinion and answered:- A. There appear to be a pattern of cognitive and behavioural issues with the late [NH] in which she appeared to have difficulty recalling the exact nature of events that had occurred. Some of these events were events that appear on more objective features that - it appears that they did not occur and then other things she appears to have forgotten that had occurred. So, that to me suggests a pattern of cognitive and behavioural issues that seem to span from prior to the incident of the alleged assault and ongoing, and I did form the opinion that these features would be consistent with the frontal lobe injuries that she suffered during the fall that occurred in May 2018. Q. You just mentioned frontal lobe injuries. What are the symptoms for frontal lobe injuries, Doctor? A. Well, the frontal lobes are very important parts of the brain, of the front part of the brain obviously with the name frontal. They're just behind the frontal area of the skull. They're responsible for a lot of our social cognition and behaviour that occurs, not so much memory, but more to do with motivation, planning, executive functions, social behaviour, regulating emotions, personality and being able to inhibit, if you like, our base instincts. They're the parts of the brain that stop us from just blurting out things that we might be thinking and, you know, trying to keep things in check in a social environment as well as, I guess, really is sort of organising oneself and being able to cope in a - on your own and undertake all the activities and planning that one would need to do in order to live independently and function well in society.
Dr Obeid agreed with Professor Rosenfeld's evidence that it was possible that some of the incidents may have happened at another point in time.
In relation to the increase in NH's Mini-Mental Score from 21 to 23 out of 30 over a period of 10 months in 2021 Dr Obeid stated that it was "quite unusual in someone with dementia of any sort to have a stabilisation or an improvement" in their score over time. There was agreement between the experts that the MMSE does not specifically test frontal lobe functions.
Dr Obeid gave evidence that he disagreed with Professor Rosenfeld's opinion that NH suffered from underlying brain disease for a considerable period of time even prior to the fall and head injury. He stated that there was no significant evidence in any of the material that he was provided with to support that opinion.
Finally, Dr Obeid was asked in chief:- Q. Doctor, I asked you earlier about those instances that you've listed on page 5, 6 and 7 of your report and I think your answer was that you agreed with Professor Rosenfeld that it's quite possible those instances happened at another place or time. With the allegations that have been made against Mr Poudel on 28 February 2020, could they also be instances that may have happened in another place or time? A. Yes, or - or indeed, may - may not have occurred. May have been a - what we would call in medical terms a confabulation.
In cross-examination Dr Obeid adhered to his opinion that NH suffered a brain injury that led to a decline in her function. It was his opinion that she did not have a dementia, a vascular dementia or any other neurodegenerative dementia. He gave further evidence that NH was still suffering the residual effects of her traumatic brain injury in 2020 and 2021.
Dr Obeid also adhered to his opinion that dementias generally develop over many years and that there was no evidence of dementia in 2018.
In relation to NH's recorded interview in March 2020 Dr Obeid gave the following evidence:- Q. In that interview, did you form the opinion that [NH] was able to answer questions that were posed to her? A. She - she certainly did answer questions, yes. Q. And at times, if she became repetitive or tangential in her answer, if she was brought back to the question, it appeared that she understood that and went on to answer the specific question? A. Yes. Q. And give responsive answers although a question may need to be repeated for that to occur? A. Yes - yes, that was evident. Q. She also, during that interview, made some concessions that she couldn't recall if one or two fingers were used, do you remember that? A. Yes. Q. And also, she indicated that she could not recall if an actual shower occurred? A. Yes, I do - I recall that that's what she said. Q. Are those sorts of concessions something that you would expect in a fixed delusion about an event? A. Do - do you mean the - the uncertainty about whether it was one or two fingers-- Q. Yes. A. --or - it - it wouldn't necessarily be inconsistent with it. Often - often, they are fairly systematised, so the person's usually consistent with what they say each time. I mean, I - I wouldn't be able to say whether it would be - you know, whether they would have to only say one finger or two fingers all the time, but certainly, her explanation of it did appear to be quite well systematised.
In relation to the brain scans in Exhibit E, Dr Obeid agreed that there was no direct relationship between changes shown on the scan and cognitive dysfunction. It was put to Dr Obeid that the scans demonstrated underlying vascular brain disease to which he replied "there are - yeah, I'd say that would be, there are mild vascular changes are there".
Dr Obeid gave the following evidence about the frontal lobe atrophy as depicted on the scans:- Q. Would you agree that the frontal lobe atrophy could be - as seen on the scans in 2018, I think it's November of 2018 - a combination of the injury from the fall and an underlying vascular disease? A. I guess it would be possible, although it seems like the frontal lobe atrophy is out of proportion to the atrophy in other areas. So, I mean one is limited somewhat by the fact that there's only two pictures being presented here, so that's not an entire brain scan. One would normally like to look at all the cuts in the brain to make a firm judgment, but on the cuts that I've been given the frontal lobe seems significantly disproportionately atrophied compared to the other areas. So you can trace around the whiteness of the skull and look at the brain volume in all of the other areas, and in all the other areas the brain matter goes to the periphery of the skull. Whereas in the frontal lobes there's a good centimetre or two that it's shrunken away from the skull, which suggests that the frontal lobes are disproportionately atrophic. If it was due to a general process like vascular disease, you would expect all of the areas to be atrophic to a similar extent.
Dr Obeid was asked about the difference in his opinion from that of Professor Rosenfeld in relation to frontal atrophy as follows:- Q. If we refer to perhaps given the difference in opinion in relation to the frontal atrophy, I understand what you've just said. In relation to the other vascular changes do you also think that that could be the case or may they have been there before the fall? A. Yes, the vascular changes were likely to be there well-before the fall. These are things that usually develop over many decades and people with high blood pressure or other vascular risk factors like cholesterol or smoking or diabetes. Q. You indicate that from the time of the fall there would've maybe been a spike in cognitive impairment that then became static level. Do I take it that you then believe that from the time of the fall onwards there would've been issues with accuracy in recalling events? A. Which events? Distant events or near term events? Q. Near term events? A. I guess in general that we do often find the people with a brain injury in the acute stage will have some amnesia, which can event be tested using well-validated scales. Q. What about confabulation, would that be something that you would expect to see from the point of the injury onwards? A. In my experience it usually develops a bit later on. I think in the first instances of the brain injury often the person is not well, they might have issues with speech and thinking clearly, and they wouldn't often have confabulations as such. They're often found a little bit later when the person settles down. From the acute stage of the injury.
Dr Obeid was taken to entries in the Progress Notes which demonstrated a lack of memory at times for NH. He gave the following evidence:- Q. You would agree that not recalling is an issue of memory? A. Yes. Q. And that is different to confabulation? A. Yes, it is, yeah, confabulation is usually a positive thing. Q. Did I also understand your evidence earlier to be that the frontal lobe is not so much responsible for memory? A. Yes, not - certainly not compared to the temporal lobes or the hippocampus. Q. So how is it that a lack of recall or a lack of memory helps to inform you that is a frontal lobe atrophy cause? A. Some - the frontal lobes do have a role in memory but it's - it's a different sort of role. So frontal type memory deficits tend to occur due to a concentration problem as opposed to a recall problem, so someone with frontal lobe disease, if they don't - if they don't spend enough time sort of getting the information in, then they can sometimes not recall it, but things that they - the memories that are laid down are usually well recalled after that. Whereas people with Alzheimer's disease, as hard as they try to remember something, they can't remember it. So, it's true that frontal lobe problems are not characteristically characterised by memory issues, but there is a frontal type memory deficit and it tends to be more of that tension, concentration sort of problem as opposed to the - as opposed to true recall of information that was previously learnt. In fact, the neuropsychologists specifically call the - the Alzheimer's type problem a hippocampal memory deficit, in other words, it's due to the hippocampus of the temporal lobes whereas they might call this a frontal - frontal memory deficit. I - I do understand where you're coming from and it's - it's true that memory is not primarily the function of the frontal lobes, but there can be some frontal lobe impact there in - in terms of a person being able to correctly interpret or understand what's going on and concentrate enough to be able to make sense of what's going on as opposed to the - just memory recall. Q. You indicated that somebody might recall a memory that's laid down. By that do you mean a memory prior to an injury that's caused it that's significant, for example, family members and those sorts of things; or do you mean a memory that's significant and laid down because of its importance? A. It - it could - you're talking about in frontal lobe damage? Q. Yes. A. Yes, it could indeed be both. The long term memory is usually reasonably good but if it's - you know, if they try really hard and they've spent time sort of laying down that memory, they - they can recall it later as well. Q. So if, for example, something traumatic happens to a person and they spend some time thinking about that, then that can create an accurate memory? A. I guess that's possible, yes.
On the issue of NH becoming aggressive at times Dr Obeid was asked as follows:- Q. In regards to [NH]'s presentation, the incidences after 28 February 2020 which is the date we're concerned about in this courtroom, the Progress Notes indicate that she is becoming aggressive in May to June of 2020. Is that also different to confabulation? A. Well, yes, aggression is different. Aggression is a physical or verbal behaviour, whereas confabulation is just the - the false - the false statement of a fact that's assumed to be true by the person. Q. And the development of someone becoming aggressive, is that something that is a symptom of dementia? A. Yes, that - that is a possible symptom.
Dr Obeid agreed, on the basis of a Progress Note dated 25 January 2021, that the staff at LGNH had noted a change in NH's behaviour as at that date, and that she had changed her behaviour somewhat significantly. He also noted that she thereafter had a confirmed diagnosis of dementia on 2 February 2021. Dr Obeid stated that he would like see the reasoning for that and on what basis that determination was made before he would accept another person's assessment. Dr Obeid was taken to the following Progress Note on 12 February 2021:- "Both residents have a diagnosis of dementia. OPMHT called for follow up as ongoing client in her cognitive impairment noted and have since shown increased stress and is negatively impacting the other residents"
He gave the following evidence:- Q. Firstly, do you have the same answer in terms of whether or not you accept the diagnosis of dementia given it's from the same team? A. That would be reasonable evidence that dementia is developing. Some people with frontal lobe damage can get some progressive deficits as well later on. So, that's another possible explanation, but I would be - that would be reasonable evidence that a dementia is developing. Q. Now, you indicated before you like to be aware of the qualifications of the team before you consider whether or not you'll accept their assessment. You're aware of Doctor Rosenfeld's qualifications? A. Yes, very much so. Q. You're aware that he observed the same video recording that you did taken in February 2020? A. Yes. … Q. You did not have the benefit of interviewing [NH] but he did and he was able to take from her a history of the incident? A. Yes. Q. And he indicated that she was consistent in the history she gave him to what he saw on the video? A. Yeah, that was certainly his opinion, yes. Q. He indicated yesterday when he was giving evidence, otherwise he noticed a significant difference in her presentation from the woman he saw on the video to the person he interviewed in November 2021. Would you accept his opinion that that demonstrates a progression in cognitive impairment? A. I probably need more information…
Dr Obeid gave further evidence that the recorded police statement on 2 March 2020 was consistent with what NH told staff because there was a short time delay between the video statement and the report to staff. He was asked:- Q. Do you agree that if she's able to repeat consistently again over a year later that that's not a consistency that's able to be explained by a short time delay? A. Yes, that's correct, it - I guess, the other explanation would be a - a systemised delusion. So something more - you know, that's - I guess, like I just said, it - it's either explicable by a systematised delusion or very good recall, one of the two. Q. If one has a systematised delusion, would you expect that the details of that delusion included the - for example, details like whether or not there was a shower, or how many fingers there were used? A. Yes, that would be a systematised delusion.
It was put to Dr Obeid that Professor Rosenfeld's opinion that NH's recall of events in her recorded interview was more likely than not to be an accurate account was because it was a memory laid down in the brain of a traumatic event, he gave the following evidence:- Q. Is it, however, a situation where it is possible that it's a recollection of an actual event? A. I'm just having difficulty fitting that in to someone who's got moderately severe dementia. So, I guess it's theoretically possible, but it would be - would have to be most unusual.
Dr Obeid gave evidence that common symptoms in mild dementia include forgetting the details of a recent event, though still remembering the event itself. He gave the following evidence:- Q. So if [NH] suffered from a mild dementia in February of 2020, then it would be possible for her to remember an event but forget details around it? A. Yes, they - they would - they might sort of remember in vague terms, and not be able to recall the - the significant details of it, but they certainly might be able to remember something about that event. But it'd be unusual for them to describe it in very good detail.
In re-examination Dr Obeid explained what he meant by the word "systematised". He gave the following answer:- A. Where it's repeated with - like, you know, significant detail that seems to describe the event very well, I guess systematic is - is another word that could be used. It's - it's relayed in significant detail with you know, all - all the minutiae of the events like you know, for example, in the video that was recorded where [NH] was asked to spread her legs and then was given an examination and the exact wording that was given, which is, I have to do this examination, I've been specially trained, it's in order to make you clean, so all of those very specific details, to me suggests that it's - you know, there's a systematic component to it, and the fact that it was recalled in the same way later on, seems to suggest that you know, that was - was a very fixed confabulation or delusion.

The Crown's submissions in relation to admissibility of the ERISP

The Crown relied on a written outline of submissions in which it was submitted that the interview should be admitted for the following reasons:- 1. Section 122 LEPRA was complied with (the requirement for the Custody Manager to caution, and give a summary of Part 9 LEPRA to the accused). 2. The accused was not considered to be a 'vulnerable person' for the purposes of s28 LEPRA. He participated in the ERISP by speaking English and his communication skills indicate that he is proficient in that language. There is other evidence of this (including the hand-written letter he wrote to his employer dated 29/02/2020). 3. The accused was asked if he wished to partake in an electronically recorded interview to which he agreed - [206] statement of DSC E Sutton 4. During the interview, after the accused stated he wished to remain silent (A8) he was asked if he agreed to the recording being made and he replies "Yes" (A12). 5. A further full caution was then given by the interviewing officer at A15-A17. Defence have argued that a caution was not given in regards to the recording being used in court, however it was given at Q17. At Q19 police confirm that he was previously cautioned as well. 6. The accused exercised his right to silence in response to some questions, but chose to answer other questions. Where he chose to exercise his right to silence, the interviewing officers did not persist with their questioning in relation to those matters. E.g. see A105, A129, A130 and A131. He also exercised his right not to sign the document that he agreed he had given to the nursing home. 7. At the end of the interview, the independent officer asked the accused if he made the interview of his own free will and he said "Yeah" (A184). He said that no one made him do it and he wanted to do it (A185). He said that there had not been any threat, promise or inducement held out to him to give answers (A186). He said he did not have any complaints to make about the manner in which he had been interviewed (A187). 8. The admissions made during the interview were not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind - ref s.84 Evidence Act 1995.
The Crown submitted that it was always a matter of degree as to whether police questioning has gone too far recognising the duty of the investigating police officer on the one hand and the right of a suspect on the other, relying on R v Fernando & Anor [1999] NSWCCA 66 at [32]. Merely because a suspect said that he did not wish to answer any further questions does not render inadmissible answers to further questions which are answered provided that the questions are fair and proper and the answers are otherwise admissible, relying on R v Plevac (1995) 84 A Crim R 570 at 580.
Here the persistence of the questioning by the investigative police was of a low-degree. When the accused said that he did not want to answer questions the police moved on to a different topic. No complaint was made to the independent officer at the conclusion of the interview by the accused who participated in the interview by speaking English and at no stage did he say that he did not understand any questions. Rather the accused displayed an awareness of his right to silence by choosing to exercise it when the specific details of the allegation were put to him.
In her oral submissions the Crown conceded that the Crown did not rely on that part of the interview referred to in the transcript as Q54-A66. Otherwise, the Crown rehearsed the written submissions submitting that the accused knew and acknowledged his right to silence, that he understood the questions and spoke in the English language, that at times he corrected the police officer and when he did not understand he said so, for example by saying "I didn't get that". He also declined to sign the document identified by him during the interview and had clearly worked in an English-speaking environment. When asked what admissions the Crown relied on in the ERISP, the court was informed that that related to the fact that on 28 February 2020 the accused showered the complainant at LGNH. That was not a fact in dispute in the trial proper.

The Accused's submissions in relation to admissibility of the ERISP

The accused by his Counsel also relied on a written outline of submissions in relation to the admissibility of the ERISP. It was submitted that before his arrest police were aware that the accused had no criminal record and no dealings with police, that English was not his first language and that he was a relatively new arrival to Australia. It was submitted that police were conscious of the accused's lack of familiarity with police powers and the justice system and notwithstanding that they conducted an interview against the accused's legal rights and expressed wishes.
The accused acknowledged that he was explained his rights at the police station and exercised those rights. At the commencement of the interview he acknowledged that the rights had been explained to him and he stated that he did not wish to answer questions whilst it was submitted that no caution was administered in the interview, (i.e. "that anything you say may be used in court"), that was not in fact the case.
It was submitted that questions during the interview which had a focus upon an internal aged care report (Q32-Q72) should be excluded because an inference may be drawn that this prior non-police investigation had found him guilty whereas that was not in fact the case. It was submitted that the police officers acted deliberately unlawfully in obtaining the interview, that they knew the accused was a vulnerable person by way of little knowledge of the justice system and police powers and the court could not condone such an abuse of power. It was also noted that the accused did exercise his right of silence in relation to a number of questions asked of him.
In his oral submissions Counsel for the accused, who did not draft the written outline of submissions, informed the court that the submissions were drafted at a time when there was going to be a jury trial. He properly conceded that the fact that a judge alone trial had been agreed took "the sting" out of the accused's submissions. It was conceded, properly in my view, that the accused spoke English and understood the questions. Regardless of that the accused did make a specific request that he would just like to remain silent and ignoring that the interview continued. Counsel conceded, again properly in my view, that on an objective viewing of the ERISP there was no suborning of him by the police officers.

Determination

Having viewed the ERISP I find that the accused was explained and understood his rights and exercised his right to silence during the ERISP. At no time did the investigating police suborn the accused as conceded by his Counsel. Further, the accused made no admission of wrongful conduct, clearly understood the questions he was being asked in English and answered those questions he chose. He was not a "vulnerable person" as he clearly understood his rights and exercised them. I find that the ERISP was relevant and had some probative value. I also find that the accused participated in it voluntarily and exercised his right to silence whenever he wanted to during the interview. At no time did the police officers suborn the accused or demonstrate persistence which crossed the line so as to render the evidence unfair. Further, as this is a judge alone trial, I can properly instruct myself as to the fact that the accused declined to answer questions could not be used against him in any way - see Priday v R [2019] NSWCCA 272 at [58]-[65]. For those reasons I allowed the Crown to adduce the ERISP into evidence in the Crown case.

Crown submissions on whether the recorded interview of NH is admissible pursuant to s65 of the Evidence Act

The Crown also relied on an outline of written submissions, relying on s65(2)(b) and (c) to have the recorded interview admitted. It was submitted that there was no issue that the complainant was not available given that she is deceased. The issue was whether s65(2)(b) or (c) applies to the recorded interview which took place on 2 March 2020 "shortly after the asserted fact" occurred. The main question for the court was whether the statement was made in circumstances that make it "unlikely that it was a fabrication" or was made in circumstances that make it "highly probable" that the representation is reliable.
The Crown submitted that s65(2)(b) was the more appropriate application in the circumstances here.
The Crown submitted that the question posed in s65(2)(b) is whether the statement was made in circumstances that make in "unlikely" that it was a fabrication. The test is not whether the statement is reliable beyond reasonable doubt, which was a question for the finder of fact in the trial, should the evidence be admitted.
At issue was the competence of the complainant to give evidence at the time she made the statement to police. The Crown submitted that the prejudice relied on by the accused appears to be whether or not the complainant was able to accurately recall a situation or differentiate reality from delusional thoughts.
The particular assertions relied on by the Crown in the statement were identified as the assertions of the alleged sexual conduct of the accused whilst showering the complainant on 28 February 2020. On a copy of the transcript of the recorded interview the Crown highlighted the particular representations relied on. The Crown noted that the complainant could not be cross-examined on her statement but submitted that there is a public interest in prosecuting serious crimes which was not outweighed by the danger of unfair prejudice to the accused as submitted by the accused's Counsel, relying on Prasad v R [2020] NSWCCA 349.
The Crown also relied on Priday v R [2019] NSWCCA 272 where the principles were applied to statements made by the complainant of a sexual assault who had died but had made statements to a doctor and police officer on the day of the alleged offences. The statements were admitted as exceptions to the hearsay rule pursuant to s65(2)(b) noting that the court must be satisfied here that s61 of the Evidence Act does not operate so as the exclude the evidence. The Crown submitted the considerations here were extremely similar to those in Priday.
The Crown submitted that the court will prefer the opinions of Professor Rosenfeld over the opinions of Dr Obeid. Professor Rosenfeld had opined that at the time of the alleged offences the complainant suffered dementia of mild severity. The Crown relied upon the evidence Professor Rosenfeld gave as follows:- 1. "NH was able to provide a reasonably clear and detailed history of the events that took place." 2. "The account NH provided was however consistent with clarity about the details of the incident." 3. "In my experience individuals with dementing illness… are usually able to give a reasonable and accurate account of recent events particularly in the case of memorable and traumatic events." He goes on to state "a traumatic event is more likely to be recalled in greater detail and for a longer period than a transient, insignificant occurrence or memory" 4. "It is more likely than not that NH was able to recall and provide an accurate account of recent events that had occurred especially those events that had been memorable and traumatic for her" 5. "The account that she provided is likely to have described real events that occurred to her - that NH suffered from a dementing illness makes it less likely, in my opinion, that the events that she recounted were not based on her experiences at that time. That she recounted those events to attending nurses soon after and then recounted those events to others, the doctor and the interviewer not long after, more likely than not indicate that they occurred and the veracity of her recollections of those events."
Professor Rosenfeld also gave evidence that it was more likely than not that NH understood the concept of truthfulness and believed the statements that she was provided were truthful.
The Crown submitted that if the court accepts the opinions of Professor Rosenfeld set out above then the statement made by the complainant shortly after the asserted fact occurred and those circumstances, made it unlikely that her representations were a fabrication. She made complainants to the nursing staff, her doctor, the medical officer who conducted the SAIK and the police within the same time period of two days. She also acted in a manner consistent with someone who had suffered the alleged sexual offending.
The Crown submitted that s61 of the Evidence Act would not operate to exclude the exception to the hearsay rule found at s65(2). In that case, there was no danger of there being an unfair prejudice to the accused which would outweigh the probative value of the evidence, on the basis of the competency of the complainant. The Crown submitted here that the evidence was at the highest level of probative value as without it the prosecution has no evidence other than the complaint evidence of the alleged offending. The Crown relied on both Prasad v R and Priday v R, supra, to submit that the evidence is not of a sort where the danger of unfair prejudice outweighs the probative value of the evidence. Further, there was less danger of unfair prejudice to the accused in a judge alone trial where appropriate directions will be given and the trial judge was required to provide reasons for any findings.
In her oral submissions the Crown rehearsed the written submissions. It was submitted that it was clear from both viewing the video itself and also from the opinions of both Professor Rosenfeld and Dr Obeid that NH was competent for the purposes of s61 of the Evidence Act as at 2 March 2020. Both doctors indicated that she was able to understand the questions asked of her and answer them. The Crown relied on s65(2)(b) of the Evidence Act for admissibility of the statement which was made shortly after the alleged events in circumstances which it submitted made it unlikely to be a fabrication. Under subsection 2(b) no finding as to reliability of the representations was required. Whilst Professor Rosenfeld had made a concession in cross-examination that it was a possibility that the statement was confabulation by NH, he indicated that in his opinion that it was not but rather she was recalling events which occurred to her. It was submitted that Professor Rosenfeld had greater experience over a longer period of time and had the advantage of meeting the complainant. He also took the brain injury into consideration from the outset.
The Crown submitted that by the time of the ACAT assessment (Exhibit 2) in November 2018, NH was suffering a mild cognitive impairment. The Crown referred to evidence of the changes in NH's behaviour throughout late 2020 and into 2021 which were acknowledged by Dr Obeid. Dr Obeid initially did not accept that NH suffered dementia as a result of vascular disease however he altered his opinion "albeit slightly" when presented with evidence of some indicators of change in behaviour and symptomatology.
The Crown submitted that if the statement of NH made on 2 March 2020 is to be admitted then the evidence of complaint should also be admitted at trial. The statement was evidence that was clearly of significant probative value and whilst it was prejudice to the accused by his inability to cross-examine the complainant, there was no danger of unfair prejudice that outweighs the probative value of the evidence. In a judge alone trial, directions would be given and reasons for any findings of fact.

The accused's submissions in relation to the complainant's statement

Counsel for the accused also relied on a written outline of submissions objecting to the statement being admitted pursuant to s137 of the Evidence Act which he submitted was a mandatory provision, namely that the court must "refuse to admit the evidence if it's probative value is outweighed by the danger of unfair prejudice." The accused referred to R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61 in which Sheller JA noted that the task set by s137 is analogous to the exercise of a judicial discretion.
The accused set out the opinions of Professor Rosenfeld and in particular that the complainant suffers with "moderately severe cognitive impairment and dementia most likely associated with vascular brain disease. The degree to which previous head injury has contributed to cognitive impairment is unclear. Brain imaging has not been done."
The accused submitted that Professor Rosenfeld had also stated that the brain injury resulting from her fall would have resolved within months of the trauma however there were long term effects. The degree to which her current cognitive impairment is related to the injury versus the underlying vascular disease is "uncertain". The accused also set out the opinions of Dr Obeid as summarised above. They include his opinion that NH could not reliably have been able to recall information about events in February 2020 at any time let alone in March 2021.
The accused conceded that the statement of NH was of probative value but submitted that that probative value was outweighed by the danger of unfair prejudice. In his evidence Professor Rosenfeld had said that he was more likely than not satisfied of the accuracy of what NH said to the police. It was well documented however that since her admission to LGNH there was a pattern of cognitive and behavioural issues including NH making possible delusional accusations of others. Those examples of documented behaviour were further evidence that at the time of making her statement to police NH was suffering a cognitive impairment. It was submitted that the issue was "not whether NH understood her obligation to be truthful but rather inaccurately recalling the situation and/or differentiating them from delusional thoughts."
In his oral submissions Counsel for the accused submitted that the recorded interview was not reliable evidence and should be excluded pursuant to s137 of the Evidence Act. Counsel for the accused relied on the numerous incidents referred to in the Progress Notes to submit that the complainant was subject to delusional behaviour caused by frontal lobe damage suffered in her fall in May 2018. Dr Obeid relied on the frontal lobe atrophy demonstrated in the CT brain scan conducted in November 2018 (Exhibit E). It was submitted there was a pattern of behaviour exhibited by the complainant from when she made the allegations against the accused to the other allegations she made against other residents at LGNH.
Counsel submitted that the court would prefer the explanation given by Dr Obeid, namely, that this was a systematised version of events created by NH. Although he did concede that it could have happened at another place or time it was more likely to be a new confabulation. Against the backdrop of the complainant's medical history, the cognitive impairment and pattern of behaviour exhibited by her, Counsel submitted it was prejudicial for the statement to be admitted into evidence.

The applicable legislation

The following sections of the Evidence Act are relevant to the determination pursuant to s65 of the Evidence Act:- 13 Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability) - (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note - See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person - (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. … 61 Exceptions to the hearsay rule dependent on competency (1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13 (1). (2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Note - For the admissibility of such contemporaneous representations, see section 66A. (3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact. … 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. … 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Relevant legal principles

In Sio v The Queen [2016] 259 CLR 47; [2016] HCA 32 the High Court considered the admissibility of a representation made by an accomplice of the accused pursuant to s65(2)(c) of the Evidence Act. The court held that the correct approach in determining that matter was to:- 1. "Focus "upon the circumstances of the making of a previous representation to determine whether it is unlikely that the representation was a fabrication or whether it was highly probable the representation was reliable"; and 2. Exclude further "evidence tending only to prove the asserted fact", adopting R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 per Mason P at [34].
Sio v The Queen was considered in Priday v R [2019] NSWCCA 272 which concerned the admissibility of hearsay evidence of a doctor and police officer under s65(2)(b) of the Evidence Act. The court held that at [35] that s65(2)(b) had two elements as follows:- "The first is that each representation was made "when or shortly after the asserted fact occurred"… the second element is that each representation was made "in circumstances that make it unlikely that the representation is a fabrication". This is a less stringent test than that posed by s65B(2)(c), no doubt because compliance with the requirement under s65(2)(b) that the representation be contemporaneous, or virtually so, with the asserted fact occurring of itself favours reliability of the representation (and therefore makes it less likely to be a fabrication). It is otherwise if the representation is made distantly in time from the asserted fact occurring."
The court went on to state at [37]:- "Although Sio and Ambrosoli were concerned with s65(2)(d) and (c) the observations in those cases are applicable to a consideration of s65(2)(b) so long as the different language of the two provisions is borne in mind. In particular, the High Court's conclusion in Sio that, instead of a compendious approach, each material fact to be proved by hearsay statement must be identified and the statute applied to it is of general application (at [61])."
Here the specific representations relied upon by the Crown were highlighted in the transcript of the recorded interview of the complainant on 2 March 2020. They are referred to below. This avoids the compendious approach disavowed in Sio, however the balance of the document may be considered to form part of the context in which the relevant representations were made as noted in the following passage from Priday at [34]:- "The court emphasised that attention is required to be given "not to the apparent truthfulness of the person making [the representation], but to the objective circumstance in which it was made" and whether they render the representation "likely to be reliable evidence of the fact asserted" (Sio at [70]). Their Honours contemplated that the circumstances in which the representation was made "may include other representations which form part of the context in which the relevant representation was made" (At [71]) but noted that the provision does not require "a general assessment of whether or not it is likely that the representor is a reliable witness" (at [72])."
The representations highlighted on the transcript of the evidence may be summarised as follows:- 1. The complainant accepted the attestation that the statement was true to the best of her knowledge and belief and that she would be liable for prosecution if she had wilfully stated in it anything that she knew to be false, or did not believe to be true by saying the words "I do, entirely". 2. The complainant's description of what usually happened when she showered on Friday nights, with a female carer to assist her. 3. The complainant's account of what occurred on 28 February 2020 including conversations she had with the accused and what he allegedly did to her during the showering process. 4. The complainant's reasons for not immediately reporting the alleged offences. 5. The complainant's account of reporting it to two nurses at 3:00am the following morning. 6. The complainant's account of how she was usually assisted in showering and why she requires assistance. 7. The complainant's account of conversations that took place with a female carer prior to the accused showering her. 8. The complainant's account of the alleged offending conduct. 9. The complainant's earlier dealings with the accused. 10. The complainant's representation that she had not stipulated a female to assist bathing her because she had never been offered anything else. 11. The complainant's statement that she could not even remember the water in the shower at all. 12. The complainant's statement that she would not even know if "it was one finger or two" allegedly used by the accused.

Determination

Before the question of admissibility under s65 of the Evidence Act arises the following issues must be determined:- 1. Whether the complainant was competent to give evidence about a fact pursuant to s13 of the Evidence Act; and 2. Whether s61 applies to the hearsay evidence.
The evidence of Professor Rosenfeld and Dr Obeid are relevant to the determination of the first question which involves a consideration of any "mental, intellectual or physical disability". Both doctors agreed that as at 2 March 2020 NH had the capacity to understand questions she was asked about the alleged assault and further had the capacity to give answers that could be understood to questions about those facts.
I am therefore satisfied that NH was competent to give evidence and the statutory presumption in s61(3) of the Act has not been set aside or rebutted.
In considering the application of s65(2)(b) the first element, namely, whether the representations were made "shortly after the asserted fact occurred" is a phrase the meaning of which is informed by a concern to exclude concocted evidence - see Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868 at [47]. In that case, the Full Court of the Federal Court concluded that "it would seem to be an unusual case" in which a representation made days after the occurrence of the asserted fact might be regarded as having been made "soon after", notwithstanding the fact that the representor "may be considered to have retained a good recollection of events" (see [49]). In Harris v The Queen (2005) 158 A Crim R 454; [2005] NSWCCA 432 the Court of Criminal Appeal held that it was open to a trial judge to find that a written statement made by a victim to police 24 hours after the incident in which he was injured was made "shortly after" that incident.
Moreover in Youkahna v The Queen [2013] NSWCCA 85 the Court of Criminal Appeal held that it was open to a sentencing judge to hold that the requirements of the provision were met in a case where a statement was made to police some months after the asserted fact - primarily because the person who made the statement knew that his representations could and would be checked by the authorities and because of his acknowledgement that he would be liable to prosecution if he wilfully stated anything which he knew to be false or did not believe to be true (at [54]-[58]).
Here, the representations contained in the recorded statement of the complainant were made two days after she first disclosed the incident to nursing staff at 3:00am on 29 February 2020. Thereafter the complainant disclosed her allegations to the nursing manager, Dr Walker, Dr Freedman at Royal North Shore Hospital (RNSH) as well as to police. I am satisfied having regard to all of those circumstances that the first element of s65(2)(b) has been made out.
That leaves the following issues to be determined:- 1. Whether representations were made "in circumstances that make it unlikely that the representation is a fabrication", so as to satisfy s65(2)(b), or 2. Whether the representation was made "in circumstances that make it highly probable that the representation is reliable", so as to satisfy s65(2)(c).
In determining those two issues I must have regard to the medical evidence of Professor Rosenfeld and Dr Obeid and ultimately outline my reasons for preferring the opinions of one or other of the two doctors. In doing so I wish to make it clear that I am not determining any ultimate issue in the trial or indicating a preference for the opinions of either doctor that may be relevant to determination of the ultimate issue in the trial, namely whether the Crown has proved beyond reasonable doubt the elements of either or both of the offences. These reasons are therefore confined to the questions outlined above, namely whether the representations were made in circumstances that make it unlikely that they were a fabrication, or were made in circumstances that make it "highly probable that the representation is reliable".
In Priday v R, the court held at [35] that the first test is less stringent than that posed by section 65(2)(c), "no doubt because compliance with the requirement under s65(2)(b) that the representation be contemporaneous, or virtually so, with the asserted fact occurring of itself favours reliability of the representation (and therefore makes it less likely to be a fabrication)."
In both Harris v the Queen and Youkahna v the Queen, supra, the Court held that the fact that the maker of the representation asserted the truth of the contents of the representations and acknowledged the possibility of being prosecuted for an untruthful statement was relevant to the question of whether in the circumstances it was unlikely that the representation was a fabrication.
Whilst it is not in issue that the complainant suffered a brain injury in a fall on 30 May 2018 I am not, on the balance of probabilities satisfied that the opinion of Dr Obeid that she did not have dementia as at February 2020, but was suffering from the effects of that traumatic brain injury, should be accepted. Professor Rosenfeld had the advantage of examining the complainant, assessing her and examining her clinical records. Given that she had a history of suffering ischemic heart disease and had undergone stenting procedures, notwithstanding that as a 91-year-old widow she was managing self-care independently prior to her fall she was assessed as at 18 July 2018 as having "some slight cognitive impairment". I therefore accept Professor Rosenfeld's opinion that it was more likely than not that as at February 2020 NH was suffering from cognitive impairment with a major neurocognitive disorder, namely, dementia associated with vascular disease that was likely of mild severity. I also accept on the balance of probabilities Professor Rosenfeld's opinion that the traumatic brain injury contributed to her cognitive impairment to an uncertain degree, there being no way of measuring that. In a legal sense, both the traumatic brain injury and dementia were causative of NH's cognitive impairment.
I also accept Professor Rosenfeld's opinion that an individual suffering with a dementing illness where memory disturbance is not the most prominent feature is usually able to give a reasonable and accurate account of recent events, particularly in the case of traumatic events.
I therefore accept Professor Rosenfeld's opinion based on his assessment of the complainant, his viewing of the recorded statement, his assessment of the Progress Notes and affidavits of the nurses that attended her, that "it is more likely than not that NH provided an accurate account of the events that occurred during the incident". Having viewed the recording twice myself I am not persuaded that the representations made therein are a confabulation as opined by Dr Obeid. In so finding I am not making any finding as to the reliability of such evidence to the ultimate issue but rather I am satisfied that both elements of the test for satisfaction of s65(2)(b) are made out.
The accused's case on this issue, based as it is not only on Dr Obeid's opinion but also on the number of post-incident events recorded in the Progress Notes do not undermine that finding. Not all of those events were of the same character. None of them involve the complainant alleging sexual assault as in the subject incident. Despite the absence of CCTV evidence in respect of two of the events, the medical evidence was to the effect that they were not events that were necessarily fabricated. What is clear is that the staff responded appropriately in all cases, and notwithstanding the lack of CCTV evidence some of the incidents did happen, for example whereby the complainant fell and injured her knee.
I find that the complainant gave a reasonable account of a recent event of traumatic nature and I therefore find that the representations made shortly thereafter in her recorded statement on 2 March 2020 was in all of the circumstances unlikely to be fabricated. For those reasons I found that the recorded statement is admissible pursuant to s65(2)(b) of the Evidence Act 1995.
As set out above s65(2)(c) of the Evidence Act involves a more stringent test. As the Crown relied principally on s65(2)(b) and ultimately disavowed reliance of s65(2)(c) of the Evidence Act I do not intend to proceed to determine the second issue in [110] above.

Whether the recorded statement should be excluded pursuant to s137 of the Evidence Act

For the purposes of s137 of the Evidence Act the credibility and reliability of the complainant's representations in her recorded interview are assumed (see Prasad v R, relying on IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39]) and that the probative value of the representations is to be regarded as "very high" (Prasad at [105]).
As in Prasad the critical issue is whether the high probative value was "outweighed by the danger of unfair prejudice" to the accused.
Without the evidence the Crown would be unable to establish it's case, hence it's very high probative value. I accept that there is prejudice to the accused resulting from the admission of the representations into evidence, and that further prejudice arises by virtue of the fact that the maker of the statement cannot be cross-examined at trial. This is an inevitable consequence of the application of s65(2) of the Evidence Act (see Prasad at [111]).
Unfair prejudice lies in the risk that the evidence may be to put to improper use. In Prasad, the court referred to Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22] where Gleeson CJ said that unfair prejudice may arise "because of the danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given." The court also referred to The Queen v Dickman (2017) 261 CLR 601; [2007] HCA 24 at [48]. As in Prasad, this trial is to proceed by way of a judge-alone trial in which appropriate directions will be given by the trier of fact to himself as to the appropriate use of the evidence (see Prasad at [113]). I am therefore not satisfied that the high probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Therefore, I decline to refuse to admit the evidence pursuant to s137 of the Evidence Act.

The Crown evidence at trial

It was agreed by the parties and an order was made that the evidence on the voir-dire became evidence in the trial. In addition the following were agreed facts pursuant to s191 of the Evidence Act 1995 (Exhibit A):- 1. The complainant NH was born on the 21st of January 1927. 2. In late September 2018, NH entered LGNH in Neutral Bay as a resident. 3. The accused was employed by LGNH in August 2019 in the position of Personal Care Assistant. On 31 December 2019, his position title changed to Personal Care Assistant (Team Leader). 4. As at the 28th of February 2020: 1. The accused remained employed as a carer at LGNH. 2. NH resided in room 202 on level 2, and had her own private ensuite. 3. The accused was the only male carer working on level 2 of the nursing home, on the 2:30pm to 9:30pm shift. 1. Between approximately 6:30pm and 7:30pm on 28 February 2020, the accused assisted NH with her shower in her private ensuite. 2. Around the time of 28 February 2020, NH showered about once a week. She suffered from the skin condition psoriasis. 3. On 26 October 2020, the accused participated in a forensic procedure with police, in the form of a buccal (inner cheek) swab. This procedure was performed to obtain a DNA reference sample from the accused. It was sent to the NSW Forensic and Analytical Science Service for the purposes of DNA comparison. After testing, no male DNA was found.

Evidence of Bindiya Maharajan

Ms Maharajan gave evidence that she worked at LGNH for two and a half years and was working there on 28 February 2020. Her shift finished at 8pm that day and she was serving NH tea around 6pm. NH asked her who would give her a shower and she made enquiries of the team leader (the accused). She gave the following evidence:- Q. What did he say to you? A. WITNESS: I have to give shower if he can assist Lady Wheeler. Prayash took consent from NH and Prayash said if NH agrees and give him permission, he will give shower to NH. Q. Were you there for the whole conversation that Mr Poudel had with NH about who would shower her? A. WITNESS: Yes. Q. What did NH say when Mr Poudel asked if he could shower her? A. WITNESS: NH said, okay. NH nodded her head and said okay to - and given consent to Prayash.
Ms Maharajan gave evidence that after that conversation she helped another resident with her toileting. She was asked whether she spoke with NH again that evening and gave the following evidence:- A. WITNESS: --so after I finished with the toileting, I saw NH having her dinner and I was sent to Lady Wheeler's room to give her shower, and then after giving her shower I went to NH's and I just asked - spoke to her and said like, is there any - I'm just here to check if there is any pad in the toilet, in the bathroom, and as there was no pad I just told her, goodnight, and she said, goodnight back to me. That's my last conversation with her. Q. Can you recall what time that was? A. WITNESS: Maybe before I finished my shift, because after that I went home. I'd spoke to Prayash and told her about Lady Wheeler and I finished my shift. Nearly to eight.
In cross-examination Ms Maharajan was asked how long she was in NH's room later than night. She gave the following evidence:- "A. … I went outside the door, I didn't get inside and I was questioning about the pad which is finish in the bathroom and then I just checked the bath - check the pad in the bathroom and I told her, "Good night" and then she smile at me."
Ms Maharajan gave evidence that when she smiled at her and said goodnight NH was in bed. She was then asked about the earlier conversation that took place in the dining room and was asked whether she remembered what the accused said to NH. She answered:- "He reported that "There are only two staff here and if you prefer the female staff to assist you, to help you, but also - but also if you give consent or permission, I can assist you." He said, "There are only two staff here and Bindiya, the female assist in showering if the client prefer the female staffer" and then Prayash said if NH give the consent, then he will shower her. … Q. After Mr Poudel said to NH, "If you consent or give permission, I can assist you," is that when NH nodded her head and said okay? A. INTERPRETER: Yes. Q. Was anything else said before you left? A. INTERPRETER: No. Q. Was there a discussion about what time the shower was to take place? A. INTERPRETER: Not in front of me.

Evidence of Ms Nikita Guatam-Poudel

Ms Guatam-Poudel gave evidence that she was a registered nurse who was employed by LGNH in February 2020 and had been working there for one year and three months. Her shift was from 2:30pm to 10:30pm.
Ms Guatam-Poudel gave evidence that she had a conversation with the accused that day in which he said "today's NH's day". She gave evidence that he further said "because she had a shower".
Ms Guatam-Poudel that she had no contact with NH before she left work but received a call the next morning from the registered nurse Prabina Chhetri. She gave the following evidence:- Q. What did she tell you? A. So, I was on my way to work and she told me that she had been reported something serious about NH. So, I said her like, "What had happened?" and she asked me how was NH's character, was she normally confused or not. So, I said, "Normally she was not confused. She was a happy resident," and I said her I asked her like what had happened and she said me, "Come to work and then I will tell you further". So, I went to work. … Q. And then after that handover process, did you speak further with Prabina? A. Yes, I did. She told me in brief, like, what she had been reported. Q. Can you remember what it was that she told you? A. Sorry, I haven't finished. So, she told me, like, in brief what had happened and she said me, "I want you to go with me in NH's room," so that she she want me to hear whatever NH said to her. So, after that we tended to a couple of residents at first because they need assistance and then we went to NH's … Q. Was NH there when you got there? A. Yes, she was there in her room. Q. Can you describe how she was when you found her? A. She was well dressed. She was ready for the day, sitting in the chair inside her room. Q. Who spoke first to her, Prabina or you? A. It was Prabina who spoke to her first. Q. Can you recall what Prabina was talking to her about? If you can remember the exact words, that would be better. A. So, Prabina started talking and she asked NH to tell what had happened in the evening. Q. And what did NH say? A. So, NH said she was given shower by a male resident and then she asked him why he was doing that and he said because he was experienced then she said okay. And after that, he started inserting fingers into her vagina and NH said, "Please, stop," why he was doing that and he said, "Because it needs to be cleaned properly," and after that, he started massaging her breasts and NH again said, "Stop," why he was doing that, "It's not good," and he said because it was good for her and after that, they finished the shower and after that NH went to bed and NH Q. Just waiting a second. When NH was talking to you, how was she presenting to you? What observations of her did you make? A. She seemed to be very nervous. She was constantly saying that, "I didn't told anybody overnight," because she thinks that people wouldn't believe her and would believe the male resident. She seemed to be in a lot of distress.
Ms Guatam-Poudel said that Prabina called the family and they contacted the manager Annastacia Wainaina.
Ms Guatam-Poudel wrote a statement out on 29 February 2020 which became Exhibit B. In that statement she had written the following about what NH told her that morning:- "NH explained that last evening 28/02/2020 she requested one of the care staff to shower her. As per her one of the girl came and said she is a bit busy so I won't be able to shower you. Instead of her a male staff approached her saying "I am very experienced and trained I will give you shower instead of the girl as I was told. I had no option. I was wrapped up in towel. We went into the shower and he asked me to stand up and apart my legs. He then start touching my private part. He then started putting his fingers inside the vagina. When I question why are you doing so, he said. "I have to make sure that all your parts are cleaned properly. I felt very embarrassing at questioned why self why me. Then the care staff he touched my breast and said I have to give you a massage and touched me inappropriately. By that time shower finished and he left. I felt very disrespectful and questioned myself why me."
Mr Guatam-Poudel gave this evidence:- Q. Did you ever hear her talking to anyone else about the incident? A. Yes. I heard on several occasions she was talking to her family and friends, and then a version of the statement was exactly the same at the time I heard.
In cross-examination Ms Guatam-Poudel gave evidence that she left her employment at LGNH in November 2021. She had not seen the incident log and was read that part of the log containing an entry about NH reporting a fall at 0300 hours, the same time she reported the sexual assault however, the CCTV did not pick anything up. She recalled the management checking the CCTV camera after NH reported that and they ruled out that nobody had pushed her. She was asked as follow:- Q. Ms Poudel, do you recall anyone, Prabina or anyone at LGNH telling you about an incident that involved NH falling at 0300 hours? A. I don't remember the exact date and timing, but I recall like there was one incident reported where she reported to the staff, the nurse, that somebody had pushed her, and as I said before the management looked into the CCTV camera and ruled out that nobody has pushed her and she, she didn't had a fall that day.
She gave the following evidence about another incident on 26 October 2020:- Q. Do you recall another incident on 26 October 2020 where NH accused Margot Biggs of stomping on her toe? A. Yes, yeah. Q. You recall that CCTV footage was also viewed for that incident? A. I don't know because if the management has reviewed the CCTV outcome, they would normally, like, the nurses would not be involved so they would they would do the document addition from the bag, we were never shared the outcome, like, what had happened, so I I don't recall what was the outcome, but I recall that she reported she had been stomped by Margot Biggs, but I don't know what what was the outcome, like, has the CCTV saw anything or not.
In re-examination she was asked whether she was the registered nurse on 26 October 2020 and she gave evidence that she could not remember that day.

Evidence of Dr EV Freedman

Dr Freedman examined NH on 29 February 2020 at RNSH. Her report dated 24 November 2021 become Exhibit C. She examined NH between 1545 and 1610 hours that day and completed a SAIK report. She also completed a Medical Forensic Examination Record ("MFER"). That document became Exhibit D. Dr Freedman gave evidence that because a Medical Forensic Examination was a procedure carried out for the purposes of collection of evidence, she had to get specific consent for the information to be shared with police or with the DPP. She therefore did an assessment of the patient's ability to comprehend the concept of consent. NH had consented to that procedure.
In Exhibit C under the heading "History" Dr Freeman had recorded the following:- "NH told me that at about 6:30pm the previous evening (28th February 2020), she was assisted by a male aide to have her shower. NH is usually assisted to shower, but had not been assisted by this aide previously. NH told me that the aide said he had been "ordered" to help her shower. NH said that after she had come out of the shower, he told her to put her feet apart whilst standing. He told her he needed to do a "special clean" and he then put his finger inside her vagina. He also told her that he had been told to give her a massage and he rubbed both her breasts with his hands."
The report went on to note "NH did not report any physical symptoms following the incident." On examination Dr Freedman noted "no injuries were seen on general body or genital examination".
In Exhibit D, Dr Freedman noted that NH was "orientated in time, person and place". Her notes of what she was told about the incident by NH reflect the history outlined above. She also noted that NH was "tearful at times when describing assault" in Exhibit D.
Dr Freeman was asked:- Q. Would you expect to see genital injuries necessarily from a digital penetration? A. Not necessarily. In my experience, we sometimes see injuries but probably more often than not, we do not see genital injuries in a case like this in a case of digital penetration.
In cross-examination Dr Freedman was asked: Q. Doctor, just going back to your comment about injuries. What if someone had psoriasis, would that affect the probability of them having an injury following this type of alleged conduct? A. So, in a patient with any form of genital dermatological condition including psoriasis, I would again, not based on any evidence that I have available to me, but just based on medical knowledge and understanding both of the disease process and of the fact that treatments for conditions like psoriasis can include steroids which would thin the skin and make it more vulnerable. So, in terms of my medical knowledge, I would believe that in someone with a genital dermatological condition such as psoriasis, it is possible that they would be more likely to get an injury than someone who did not have a dermatological condition in their genitals. Q. After when you examined NH, is it correct that you found no injuries? A. I didn't find any on genital examination inspection. I didn't find any injuries on NH's genitals, no.
In re-examination Dr Freedman gave the following evidence:- Q. You indicated that it's possible that it's more likely that someone who didn't have the skin condition would get an injury. If someone who had such a skin condition on their genitals did not get an injury, does that tell you whether or not the act occurred or not? A. Most definitely not. Even with people with genital dermatological conditions, there's still a you know, I couldn't put a percentage on it but I would still think that a number of patients would not sustain an injury. There is no condition that I can think of which would guarantee one to sustain an injury following penetration.

Evidence of Prabina Chhetri

Ms Chhetri gave evidence that she had been working at LGNH since 2013 and worked on Friday nights from 9:30pm to 7:30am. She was a registered nurse but worked as a supervisor supervising 3-4 carers.
Ms Chhetri gave evidence that she knew NH since she arrived at the centre in 2018 but had never had interactions with her as she was always sleeping. Ms Chhetri gave evidence that at 3:00am on 29 February 2020 she observed a flashing light indicating that the resident in room 202 required assistance. A carer, whose name she could not remember went to see NH. The carer called Ms Chhetri to say that NH needed some Panadol and that she was saying something which she could not understand. Ms Chhetri gave evidence that she took the Panadol out and went to see NH. She gave the following evidence:- Q. Was NH awake when you went into the room? A. That's right, she was awake, and then she looked disturbed, you know. The moment I saw her she looked disturbed, she looked a bit teary, she wasn't crying, and then I asked her, then I went to her room and then I asked her, what she needed the Panadol for, and she said, she hasn't been able to sleep. Q. Did you have any further conversation with her? A. Yes, I did, and then she told me that Q. What did she what did she say? A. she said something was bothering her, and that's why she has got headache and she hasn't been able to sleep. Then I prompted her, I encouraged her to say what was bothering her, and then she said, she really had a bad experience the evening before. Q. Did she tell you what that experience was? A. So she told me that, you know, around dinnertime, because she usually has a usually takes a shower around dinnertime. After dinner in the evening, so she had asked one of the female staff to help her with the shower, and the female staff said she was going to come and help her, but then a male staff turned up for the shower, to help her with the shower. Q. Did she say anything else? A. And then she went on to say that the male staff came and then he started showering her, she said that she asked him why he was there, because she had requested a female staff, and the male staff said the female staff is busy doing something else and he's capable enough to give her a shower. He's been trained to do that so he said he is going to shower NH instead. Q. Did NH tell you anything about the shower itself? A. Yeah. Well she said, while she was he was assisting her with the shower he started with the bottom part of NH, and he asked her, you know, he put the water on her and then he asked her to spread her legs, and he started cleaning her private part, and while doing so he also inserted the finger into her Q. … You were saying that during the shower he inserted, and then we didn't hear what you said after that? A. So he inserted his finger into her private part, vagina. Q. Did she say if they'd had any conversation? A. Yeah, and then she asked him why, why is he doing that, you know, why is he doing such an act, and then he said he needed to make sure that she was clean enough, she was thoroughly cleaned. Q. What happened next, did she tell you anything else? A. So after that he started cleaning her breasts, I mean massaging her breasts, and then again she asked him why he was doing, and then NH the male staff said he also needed to make sure that even the breasts need to be thoroughly cleaned. Q. Did she tell you anything else about the shower or the male staff member? A. Then I asked her, you know, like this is something very new for me as well, and then she said, after that he finished the shower somehow and then he took all the towels away and then he was while he was going away, going out of the shower, the toilet, she told him not to come back again, or something like that. Q. Did you say anything to her after she had told you this? A. Yeah, and then I asked her, you know, why why so late, because that had happened on Friday evening. She had waited all Friday evening, all Saturday, and until 3 o'clock she had not told anyone, so I asked her why didn't you report to anyone, why didn't she tell her family members or the staff, and then she said it didn't strike her mind that she had to report it, but she wanted to tell her daughter but then they were holidaying and they didn't she didn't want them she didn't want to ruin their holidays. Q. Did she say anything else? A. She also said that, you know, nobody would believe her even if she told anyone, you know, they would think that she was making up stories.
Ms Chhetri gave evidence that she was going to check on NH every now and again just to make sure she was alright and told her she would have to inform her family members which NH agreed to. She gave the following evidence:- Q. After you left NH, what did you do? A. So I went downstairs, and then I didn't know who to ask, because this is something, you know, I had never experienced anything like this before, so I went on to read all her notes and then I remembered doing her observations which includes, you know, checking her blood pressure, temperature and everything, and also checking her urine sample. I went upstairs, you know, and then I asked for some urine, I checked her urine sample, and then I did the, you know, the urinalysis just to see if there was any infection, but everything was clear. And there was no visible bruise or anything in her, you know, from I didn't check the inner part, but, you know, the bruising or anything, I couldn't see in her face or in hands or anywhere else.
Ms Chhetri gave evidence that she checked the roster to determine that it was the accused who was working earlier that evening.
Ms Chhetri gave further evidence that she spoke to Nikita Guatam-Poudel by phone the next morning and asked her if NH had reported anything like this to her the evening before which she denied. She gave the following evidence:- Q. Did you and Nikita speak again when she got to work that morning? A. Yes, but before that I also asked because, you know, I went through all the documentation of NH, like if anything had happened previously, but I couldn't see anything like that. And then but somewhere I saw there was a diagnosis of dementia, something like that as well, so while talking to Nikita over the phone I asked her if she also knew she had dementia, but yeah, I don't exactly know where I saw it though. Q. Had you been aware of that diagnosis before you went through the notes that night? A. No. No. No, no, no. I always knew in my head that she was, you know, totally with it. Q. Did you speak with Nikita the next day? A. That's right, yes, so when Nikita came we talked about it and something some other incident happened, you know, somebody had a fall or something, I need you to do something, so we went together, we did that and Nikita had come a little early that morning, so then after that we both went upstairs to NH's room. Q. And when you were in NH's room with Nikita, can you tell me what happened there. A. So she was awake and ready. She was all dressed up and she was ready and ready. She was already on the sitting on the couch so I I introduced Nikita to her that this was the registered nursed who was taking over from me, and after that I started saying, you know, that I'm not questioning her or I'm not judging her but, you know, we needed if she could, again, decide, you know, whatever she told me at at night to Nikita as well if she was comfortable doing that, and then she said she was Q. Did you hear what she said to Nikita? A. Yes, she said exactly the same, you know, whatever she told me she repeated the same to Nikita as well. Q. When you say she said the exactly the same, did she use exactly the same words or was it just the same version of events? A. Not exactly the same words but same version of the event, you know, whatever she told me, you know, putting the finger into her vagina, massaging her breasts and, you know, like she thought nobody would believe her, she didn't want to ruin the holidays of her daughter, you know, everything was the the the similar version of whatever she had, you know, reported to me.
Ms Chhetri gave evidence that she reported the matter later that morning to her manager Ms Liow and called NH's daughter, she also spoked to the director of nursing Annastacia Wainaina who asked her to provide a statement which she wrote out that day. Her statement dated 29 February 2020 became Exhibit E.
The statement reflected her evidence.
In cross-examination Ms Chhetri was asked about an incident log which included "twice after the incident she has reported that a resident has pushed her and she had a fall at 0300 hours, same time as when she reported the assault, however the CCTV didn't pick anything".
Ms Chhetri gave evidence that she did not recall either seeing or making an entry like that. She did not know who completed the incident log. She did remember vividly an incident where NH complained about someone pushing her or hitting her or stomping her on the foot, she did not know the outcome of that complaint.

Evidence of Annastacia Wainaina

Ms Wainaina gave evidence that she was employed at LGNH from 2019 until March 2020 and was the director of care services. She received a phone call on Saturday 29 February 2020 from the Care Manager Shan Liow who told her there was a sexual assault allegation.
Ms Wainaina gave evidence that she went straight to the facility that morning and spoke to both Prabina Chhetri and Nikita Guatam-Poudel. Ms Chhetri told her that NH had reported being touched inappropriately and had said that the care staff had put his fingers inside her vagina and touched her breasts. She asked both women to write a statement of what they had heard NH say and then spoke to NH herself. She gave evidence that NH "repeated what the girls had said, that a care staff member who had worked the previous night had put his fingers in her vagina and touched her breasts. I did ask her why that was and she said that the care staff said that she needed to be cleaned".
Ms Wainaina then gave the following evidence: Q. Did you ask her anything about the timing of her reporting? A. I did ask her about the timing of her reporting. Yes, I did and she said I asked her why didn't she report it immediately and she said she thought it was her fault and she didn't want to cause a fuss or put anybody in trouble. Q. After you finished speaking with NH, did you speak to somebody else? A. As protocol dictates is to call the family, but I also called the doctor. The RN have a responsibility to obviously inform the doctor so the doctor had already been informed, but I called him again myself. Q. I'll just slow you down there. What doctor was it that you spoke to? A. Dr Walker. Q. You were indicating that the RN had already spoken to him? A. Yes. Q. Did you also speak to NH's family? A. I did call them. Q. Did you call anybody else? A. I also called the police officers. Q. After you called police, did you speak with any male staff members? A. So, I called because the male staff that was on duty and who was working on the floor was Prayash, so I did call him and asked him whether he had worked the previous night. He said yes. I asked whether he had worked with NH. He said yes. He worked in level 2 where NH was and had given her a shower. So, I said whether anything inappropriate happened during that shower and he said no. He just because I said, "Unfortunately, NH has made an allegation that there was inappropriate touching," so he said to me the only thing he did was he put soap on the back and NH washed her own private parts and he just helped he just was there to help, but not touching her. Q. Had he told you anything about his interactions with NH and how they had made him feel when he was leaving work? A. Yes, he said that NH was very complimentary and obviously doesn't matter male or female. Anybody, when you're going to do anything to a resident, we always must ask for consent and he said along the process he had asked for consent maybe three times or more, and then he said NH was very happy and gave her complimentary that he felt actually really good about working on the day. Q. Did you tell him anything else about the steps that you had taken that day? A. Yes, so I told him just as it is that he had been stood down at that time until further notice. I'd then update him on what needs to happen next. Q. Did you ask him to do anything about the allegation? A. I did ask him to make sure he writes everything as he remembers it on the day. Q. Did he do that? A. He did that and sent me an email, an email that I then also gave to the police when they came in.
The handwritten statement of the accused dated 29 February 2020 became Exhibit F.
Exhibit F included the accused stating that there were two staff on the floor and the female Bindiya will be attending to another resident. His statement reads:- "Conversation goes like this: Me:- I know that you prefer female staff to help you shower but at around that time Biniya won't be here so what shall I do? May I call the female staff from another floor or can I make Elisha wait until that time. She:- Don't worry about that you are always helpful to me. You usually come to me to give my medications and to put on my hearing aids. So that's all right you can help me today. Me:- Are you sure NH? I asked her the same question 4-5 times This conversation is exactly what had happened. She used to be always pleased with me whether during medication or during caring or helping her. She asked me to be there around 6:45pm but I got late for 5 minutes as I got busy with other residents. It was 6:50pm when I entered the room (the timing is approximate according to the nurse station watch). I knocked the door and informed her that I am one of the staff. I entered the room after she allowed me. She was ready for the shower. Though she was ok with me to reassure whether she was really ok or not I again asked her. The conversation with her goes like this:- NH:- Oh! Thank you so much you are here to help me. I am ready now to go for shower. Me:- Ok NH I will prepare towels and I assister her to the toilet. I asked her do you want to shower yourself. If so then I will wait outside toilet or do you need my help? She:- You need to help me. Can you please check the temperature of water? [I checked the temperature of water and poured water] I gave her shower gel and asked her to wash her private parts by herself and I helped her to wash her legs an back. She:- Thank you so much you are so kind and helpful. Me:- It's all right NH its my duty [I dried her back and on the legs and offered her one extra towel to dry her private parts, the applied cream on her back, legs and on her neck. I let to dress by herself and told her that I will be back after a while to collect the rubbish and wet towels. Then she said:- Ok, I will wait, thank you so much for today. You are such an amazing person. You are multitalented. You were so gental, quick and effective. Me:- Thank you for your compliment. She:- I have to appreciate your work, oh yes I have on pad left now so will you fill the other pads. Me:- Checked her pad and informed her that there is one pad left, the night staff will fill the others pads for tomorrow at around 9:30PM. I went there after a while. I collected the rubbish and take off the battery of hearing aids (as regular schedule) I wished her goodnight and she being happy with a smile wished me goodnight. I looked after the floor till 9:30PM. She didn't complain with anything on my shift. And then I finished my shift at 9:30PM."
Ms Wainaina gave evidence that before she in March 2020 she had further reports about NH. She gave the following evidence:- A. I did and I actually maybe I didn't work much 2020. It's been a while now. It must've been months later because I do know I am the one who investigated the case so it can't be March 2020 when I left. I did investigate Prayash's case. So, yeah, we did have contact. Sorry, nuh, I've forgotten what your question was. Q. Can you recall what those incidences were after this? A. So, a few times NH woke up, you know, earlier than she would normally wake up. She would say she had a fall and once we investigated those cases, that was not the case. Q. Now, when you say, "investigated", what investigations? A. For example, with the fall, we have CCT camera to show us if there was a fall. We'd ask the staff members whereabouts she was at the time, where was she found, somewhere she'd fallen or things like that, but there was none of those.
She was also asked:- Q. In the time that you worked there, is it the case that you'd had no other complaints made about Mr Poudel? A. There had been no other incidents at all. I was employed after he had been employed. Previous to me, there had been no incidences with him at all. He was a good hardworking staff member so this came as a shock to me.
In cross-examination Ms Wainaina gave evidence that she created the incident log. She recalled that the GP was called at 0839 hours, and that was Dr Walker. She gave evidence that she called the family at 0820 hours.
She confirmed that the incident where NH reported being pushed and having a fall at 0300 hours was the same incident reported in the incident log two-weeks after the alleged sexual assault.
Ms Wainaina gave evidence that she recalled two incidents being reported before she left, one being a fall and then "there was just a bit of disagreements". She gave the following evidence:- Q. Are you aware of any other incidents that were reported by NH before you left Lansdowne Gardens? A. Before I left I I cannot now remember if there was another other incidents, but I know that there were maybe two incidents that come to mind of either a fall or then when she's sitting at the table with the ladies that she was sitting with, then there was just a bit disagreements. Q. What else do you remember about that argument? A. Now whereas I cannot really remember the details, I do remember when what about was at when we when I investigated it, it ended up being what she said and what we investigated to be the truth was not correlating. I cannot now give you the full details. I know there was the people she was sitting at the table that there was disagreement. Q. Just to clarify, ma'am, when you say she, are you referring to NH? A. To NH. Yes. Q. When you say that it wasn't, I think the word you used was correlated or related that you just used? A. Yeah, it look, I I can't remember the full incident it was. I do remember the pushing and we checked the CCTV and the with the fall. She hadn't fallen, there was nothing that would show us that she had had a fall but she had reported she had had a fall. I remember there was incidents at the at her dining table in a way that we needed to change the way the dining table, the way they were seating, but in terms of what the statement that NH had made and what had actually happened, they were not, yeah it was not correlating, if I may put it like that. Q. When you say that it wasn't correlating, what did you do or what did you read for you to say that it wasn't correlating? A. So this would be, for example, with the push let me talk about that incident because that's now that it's been brought to memory I remember it. When she state she had had a fall and we checked, she hadn't had a fall. That's the correlation I'm saying, her statement and what had actually occurred were two different things.
In re-examination Ms Wainaina gave evidence that she did watch the CCTV in relation to the allegation NH fell. She was not aware of the entry in the Progress Notes "found on the floor graze on right knee". She gave evidence that the CCTV viewed was of the common areas and that's where there was no correlation.

Evidence of Dr P Walker

Dr Walker gave evidence that he was a GP at LGNH and that NH came under his care when she entered the facility in September 2018. He was her on a weekly basis, and often no medical intervention was needed. He also saw her briefly on the evening of 28 February 2020 but did not formally sit down her on that day.
Dr Walker gave evidence that he was contacted by phone on Saturday 29 February 2020 that NH had notified nursing staff of an allegation involving sexual abuse and that he needed to attend her to assess her in relation to that. He gave evidence that he spoke with her that morning, and gave the following evidence:- Q. How was she presenting at the time in terms of her demeanour? A. She was, I would describe her as, bewildered at what is what she felt had befallen her, yeah, she repeatedly asked me why would someone do this to an old woman throughout the time that I was with her. She was but she was she was bewildered and trying to come to terms with what she obviously had experienced in herself but she was also quite calm and had, you know, she was able to recount to me a sequence of events and interactions and, you know, she had clear recollection of an exchange between herself and various other parties, the alleged Q. What was it that she told you happened? A. She told me she recounted, basically, a narrative in which she went to her room, it was sort of it was in the evening, must have been not long after I left the facility and that a male nurse attended to her to offer her a shower, she advised that this nurse I I think she my recollection is that she made some demur as to whether she wanted a male nurse to shower her, and she said that the nurse had told her, "There's no one else available today, I can shower you" and she described that during the shower that was offered, that she felt that the nurses hands entered her vagina and that this felt wrong to her and she also described that when her breasts were being washed, that also felt like it was more repetitive than it needed to be during a normal shower. She advised me that she had told the nurse that that felt that this was not necessary to wash her in this manner and that the nurse had replied, "This is the way I was trained to do it."
Dr Walker gave evidence that NH then told him about reporting the incident to nursing staff and advising NH that she would need to be seen at the RNSH sexual assault unit.
Dr Walker gave evidence that he continued to visit NH in the weeks following the incident. He gave the following evidence:- Q. During the period of time after the incident, although you don't believe that it's healthy to rehash things, I think is what you just said, were there times where she would recall the incident or part of the incident with you? A. Yes. So, for example, in the week immediately following the incident when I saw her and she was telling me about the interaction that she had at the North Shore sexual assault unit, yeah, she did recount again elements of what she had told me on the day following the incident and, you know, very consistently the particular elements of the whole event were recounted with, you know, essentially identical words and with, you know, the same effect on her at the time. She was bewildered as to how this happened and why should it happen and I provided some sort of, you know, just gentle reassurance that it was not her fault and that she was being looked after and that, you know, by telling everyone appropriate people what had happened, that it would serve to ensure that other people were not going to be in the same situation as she was and that was something that she was very concerned to do to try and help prevent anyone else going through what she's gone through.
Dr Walker gave further evidence about a conversation he had with NH on 29 September 2021 about her ability to tolerate giving evidence at trial during which he stated, "She immediately sort of launched into a recount of the scenario, she sort of was able to replay to me her recollections of what had happened and she could further recount the things that had happened where she'd had to go… she was very willing to go to trial because she wanted to make sure this never happened to anybody else. So I was quite, you know, surprised and impressed by the sharpness of her recollection at approximately 18 months difference in time."
Dr Walker gave evidence that he did not remember one of NH's major concerns was psoriasis and he could not ever recall prescribing her steroids for psoriasis.
In cross-examination Dr Walker gave evidence that he had been requested by the DPP to make sure that NH could go through with the trial which led to this conversation with her on 29 September 2021.
Dr Walker was asked about his description that NH was bewildered when first reporting the incident to him as follows:- Q. What about the word bewildered? A. Well bewildered is my description of my impression of how she was reacting immediately following and on subsequent recounting of her experience.

Evidence of Ms Lee Carissa

Ms Carissa gave evidence that in February 2020 she was employed as the Group Operations Manager at LGNH. She gave evidence that there was no policy or procedure specific to showering residents but rather it was "more around resident's personal preferences and maintaining their dignity". She relied on the carers having completed aged care training and it was part of the code of conduct that members of staff were aware that sexual harassment or abuse would not be tolerated.
Ms Carissa gave evidence that the accused commenced work on 16 August 2019 as a Personal Care Assistant and then became a Team Leader and it was of his position to provide personal care such as showers.
There was no cross-examination.

Evidence of Detective Senior Constable Sutton

DSC Sutton gave evidence that she attended LGNH on 29 February 2020 with Detective Sergeant Gladwin and met with the Director of Care and Services Ms Wainaina. She spoke to NH and gave the following evidence:- Q. What did she say? A. She said that he had inserted his fingers into her vagina and that he'd massaged her breasts. Q. Did you make any observations about her demeanour at the time? A. She seemed quite taken aback by what had happened and she repeated a number of times how why did it happen to her. Q. Did you then ask her if she'd be willing to participate in a sexual assault examination? A. Yes. Q. Did you arrange for that to take place at Royal North Shore Hospital? A. Yes. Q. Did you also arrange for NH and her daughter to attend Chatswood Police Station? A. Yes. Q. That was for a further statement to be obtained? A. Correct. Q. You did that on 2 March 2020. You participated in a taking of a statement from NH? A. Yes. Q. That was recorded, audio and visual, on a disc eventually? A. Yes.
The recorded statement dated 2 March 2020 became Exhibit G and the transcript of the interview became Exhibit H.
DSC Sutton gave evidence that on 31 March 2020 she contacted the accused and he attended the police station but did not wish to participate in an electronically recorded interview. He was not arrested at that point.
On 26 October 2020 he was placed under arrest and taken to the Auburn Police Station where he underwent an ERISP. The disc of the ERISP became Exhibit J and the transcript became Exhibit K.
DSC Sutton obtained a death certificate in relation to NH which become Exhibit L.
DSC Sutton gave evidence that the accused had no criminal convictions in NSW but she did not make any investigations as to whether or not he had any criminal convictions elsewhere. The Crown conceded he had no criminal convictions in Nepal.
The report of Professor Rosenfeld dated 23 November 2021 became Exhibit M and his report dated 15 February 2022 became Exhibit N.
Exhibit O were the two brain scans that were made on 19 November 2018.

Evidence in the accused's case

In addition to the evidence of Dr Obeid outlined above, the accused relied on the following documentary evidence. Exhibit 1 comprised Exhibit 1.1 to Exhibit 1.17.
Exhibit 1.1 to Exhibit 1.15 were the Progress Notes relating to NH. Unfortunately, the notes were not uniformly accurate as to their timing. For example Exhibit 1.2 was a report created on 23 September 2018 by a registered nurse following NH's admission to LGNH. It noted her relevant medical diagnosis as "acute subdural haemorrhage on the background of subarachnoid and bilateral and subdural haemorrhage… dementia" curiously it also noted "recent fall on 13/03/2020 at 0330, found on floor, graze on right knee. Last unwitnessed fall in bathroom, 27/11/2018, 19:15."
Exhibit 1.3, created on 2 August 2021 contains the following entry under "Behaviour History":- "Anxiety. Cognitive impairment. Verbal behaviours. Delirium secondary to UTI. NH exhibits paranoia behaviour and hallucination. She also does say hurtful things to other residents that she dislikes in front of them and would constantly ask for them to be excluded from the activity she is in. Staff have explained that we are unable to exclude residents when they choose to attend but will ensure that they do not sit close to each other. NH also exhibits irritable behaviours and will lash out at other residents that she perceives are mean to her. She also does call out names that are rude towards the other residents which can be quite hurtful to the others. NH also has the tendency to judge and perceive others and saying it out loud without thinking of the other residents feeling."
Exhibit 1.5 was a note dated 10 July 2019 relating to care details. It noted that NH "is a sociable resident who enjoys music appreciation, choir, trivia, entertainment, bus trips, pet therapy, movies, dance for health, cooking workshops and coffee club."
Exhibit 1.9 included the following note:- "Recent fall on 13/03/2020 at 0330, found on the floor, graze on Right knee. Last unwitnessed fall in bathroom, 27/11/2018, 19:15. As per her daughter, NH had 3 falls in 2018 before admission. Recent 2 falls (august 2018?) - due to dehydration that lead to unconsciousness whilst walking unaided. 1 fall - had UTI and fell down whilst walking and sustain left radial fracture, undisplaced occipital fracture."
Exhibit 1.11 concerned an incident on 20 May 2021 described as a "minor incident" which noted that NH "got agitated" and was seen grabbing another resident's bag. Under the heading "Evaluation of Actions Taken" was a notation "NH has cognitive impairment and would perceive things at times".
Exhibit 1.11 also included a report on an incident on 13 March 2021 following which NH told nursing staff that she had been kicked in the leg by another resident. CCTV review concluded that she was not kicked by another resident. It also included a report of an incident on 17 February 2021 where NH was verbally aggressive towards another resident. This followed another incident on 12 February 2021 of both physical and verbal aggression by NH towards another resident. On that occasion police were called and attended the facility to both NH and the other resident. Both were noted to have dementia.
Exhibit 1.11 also included another report created on 31 May 2021 of verbal aggression between NH and another resident in which NH was abusive towards the other resident.
The same exhibit contained a note created on 2 January 2021 in which NH alleged another resident had stolen jewellery from her. The jewellery was later located in her bathroom.
Another incident on 1 December 2020 involved her physical and verbal aggression towards staff in which she accused a staff member of not helping her during her bus trip that morning. There had been no bus trip that day.
On 26 October 2020 NH accused another resident of stomping on her toe however that resident was nowhere near her. When the registered nurse reviewed her toe NH informed her that a resident had hit her with a stick. Staff spoke to NH's daughter who mentioned that staff may have misunderstood NH as she was referring to an incident that took place "a while ago".
Another incident of verbal aggression took place on 18 June 2020 in which NH had become agitated and threatened another resident during a music appreciate session.
A note dated 13 March 2020 recalled a claim of unwitnessed fall where another resident had pushed her walker towards NH and she lost her balance and landed on her knees. NH did have a skin tear on her right knee however staff reviewed CCTV and there was no fall or altercation shown, the other resident did not sit near the TV room where the incident was alleged to have taken place.
Another incident was noted on 8 December 2019 in which another resident had been aggressive and intimidating towards NH who did not remember the incident. Her medical diagnosis was noted as being "dementia, Alzheimer's disease including early onset, late onset, A-Typical or mixed-type or unspecified."
Exhibit 1.16 was the Incident Log created by Ms Wainaina. It included a notation that after the alleged incident NH was offered "1:1 for 72 hours to ensure she felt safe. This was declined by both her and her family who felt it best for her life to go back to normal. Emotional assessment is still ongoing. There was no changes in her behaviours, eating and/or sleep pattern. However twice after the incident she has reported that a resident has pushed her and she had a fall at 0300 hours same time as when she reported the assault however the CCTV didn't pick anything."
Exhibit 1.17 was a report of Dr Obeid dated 19 July 2022.
Exhibit 2 was the assessment summary generated on 18 July 2018. It noted that NH's medical history included "atrial fibrillation, hypertension and ischemic heart disease, had an acute myocardial infarction and stents in 2006." It is also included the following:- "NH is a 91-year-old lady who was widowed just last year. She lives alone in her own home which has multiple steps to access plus internally. Client has two supportive daughters and has grandchildren who also provide her with regular support and practical assistance. At her baseline NH was independently mobile without aids, independent with personal care and received some assistance from her family with shopping, cleaning, transport, some meals and daughter assists with finances and bill-paying as until last year client was accustomed to her husband taking care of finances. NH has been very actively involved with organisation participation (RAAF Association, is Treasurer for Torchbearers and attends monthly meetings) and also enjoys going for walks and doing crosswords."
The report also noted that NH had "some slight cognitive impairment" and that she suffered anxiety about "things generally".
Exhibit 3 was a Clinical Frailty Scale which outlined scoring frailty in people with dementia on a scale from 1-9.

Directions of law

Section 133 of the Criminal Procedure Act 1986 provides as follows: "(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved each of the offences beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charges beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.
I have heard submissions from both the Crown and counsel for the accused. I will consider those submissions and give them such weight as I think they deserve. In no sense are those submissions evidence in the case.
It is for me to assess the various witnesses and decide whether they are reliable. The reliability of any witness' evidence depends upon both the witness' honesty and also the witness' accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. I am not obliged to accept the whole the evidence of any witness. I may, if I think fit, accept part and reject part of that witness' evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question, and it only becomes evidence of the fact if the witness accepts that proposition as true or if there is other evidence that proves the proposition.
The Crown case depends on the court accepting the reliability of the evidence of the complainant to prove the guilt of the accused beyond reasonable doubt. The complainant's evidence must be found to be both honest and reliable. Before the court can convict the accused of any count on the Indictment, the evidence of the complainant must be examined very carefully in order for the court to be satisfied that it can safely act upon that evidence to the high standard required in a criminal trial.
Before setting out the directions that I must give myself, the following are the elements of each offence, which the Crown has the onus of proving beyond reasonable doubt:-

Count 1

The elements of the offence are:- 1. On 28 February 2020 at Neutral Bay in the state of NSW, 2. The accused had sexual intercourse with NH, 3. Without her consent; and 4. Knowing that NH was not consenting

Count 2

The elements of the offence are:- 1. On 28 February 2020 at Neutral Bay in the state of NSW, 2. The accused intentionally sexually touched NH, 3. Without her consent; and 4. Knowing that NH was not consenting
I also have regarding to the following definitions:- "Sexual intercourse means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by:- (i) Any part of the body of another person…" "Sexual touching means a person touching another person - (a) with any part of the body or with anything else… in circumstances which a reasonable person would consider the touching to be sexual."
In regard to sexual intercourse, the Crown does not have to prove full penetration occurred or that the sexual intercourse was for the accused's sexual gratification.
The following are the directions of law which I must give myself in determining my verdicts in this matter:-

Sexual assault consent knowledge direction

The accused is charged with sexual intercourse without consent knowing that the complainant was not consenting. The Crown alleges in Count 1 that on 28 February 2020 at Neutral Bay the accused did have sexual intercourse with NH without the consent of NH, knowing she was not consenting.
The Crown must prove beyond reasonable doubt: 1. That at the time and place alleged the accused had sexual intercourse with NH. 2. Without NH's consent, and 3. Knowing that NH did not consent.
I will explain each of these three elements of the charge in turn.

Sexual Intercourse

That at the time and place alleged the accused had sexual intercourse with NH. That is alleged to have occurred in the shower of the complainant's room at Lansdowne Gardens residential aged care facility on 28 February 2020.
The Crown does not have to prove that full penetration occurred or that the accused ejaculated or that the sexual intercourse was for his sexual gratification. Count 1 concerns the accused digitally penetrating the complainant's vagina with his finger/s.
If the Crown has failed to satisfy me beyond reasonable doubt that there was sexual intercourse, I must find the Accused found not guilty of this charge.
If I am satisfied beyond reasonable doubt that the Accused had sexual intercourse with NH, then I must consider the second element, that is, whether the Crown has proved beyond reasonable doubt that NH did not consent.

Consent

The accused does not have to prove that NH consented; it is for the Crown to prove beyond reasonable doubt that she did not.
A person consents to sexual intercourse if they freely and voluntarily agree to have sexual intercourse with another person. That consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways such as the offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer any physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent which is obtained after persuasion is still consent provided ultimately it is given freely and voluntarily.
The Crown must prove beyond reasonable doubt that NH did not consent. If the Crown fails to do so, then the accused is not guilty of this charge.
If I am satisfied beyond reasonable doubt that the accused did have sexual intercourse with NH and also that she did not consent, then I must go on to consider the third element, namely, whether the accused knew that she was not consenting.

Knowledge

The Crown must prove to me, beyond reasonable doubt, that the accused knew that NH did not consent.
It is the accused's actual knowledge of the lack of consent with which I am concerned. I might ask how the Crown can prove that the accused was aware that NH did not consent without an admission from the accused to that effect. The Crown asks me to infer or conclude from all the facts which it has set out to prove, that the accused must have known and that he did indeed know that NH did not consent.
In a situation where NH did not in fact consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that NH was not consenting. That is a guilty state of mind. If the Crown satisfies me beyond reasonable doubt that that was the state of mind of the accused at the time of the act of sexual intercourse, then the third element of the charge has been made out.
On the other hand, I may decide on the basis of the evidence led in the trial that the accused might have believed that NH was consenting to sexual intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore, if I am not satisfied that the accused knew that NH was not consenting, the Crown must prove one of two facts before I can find the Accused guilty, either; 1. That the accused did not honestly believe that NH was consenting, or 2. That if he did have an honest belief in consent, that he had no reasonable grounds for that belief.
It is for the Crown to prove that the accused had a guilty mind, and so if there is a reasonable possibility that he did honestly believe on reasonable grounds that NH was consenting, then I would have to find that this third element of the offence is not made out, and return a verdict of not guilty of this charge.
In determining whether the Crown has proved that the accused actually knew that NH was not consenting to intercourse with her, I must take into account what steps were actually taken by the accused to ascertain whether NH was consenting to intercourse.

Direction pursuant to s293A of the Criminal Procedure Act 1986 - differences in complainant's accounts

If I find there are inconsistencies in the complainant's account that may be relevant to their truthfulness or reliability, I direct myself that experience shows: 1. People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. 2. Trauma may affect people differently, including affecting how they recall events. 3. It is common for there to be differences of accounts in a sexual offence, and 4. Both truthful and untruthful accounts of a sexual offence may contain differences.
It is up to me as the Judge of the facts to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.

Complaint evidence direction

In this trial the Crown relies upon evidence of what the complainant said to other people about the alleged assaults, that such an assault did occur. The evidence the Crown relies upon falls into two categories. They are: 1. The complaint made by NH to Prabina Baniya Chhetri and Nikita Guatam Poudel on 29 February 2020. 2. The complaints made by NH separately to Annastacia Wainaina, Dr Eleanor Freedman and Dr Peter Walker on 29 February 2020. 3. The complaint made by NH to Detective Senior Constable Emma Sutton and Detective Sergeant Gladwin on 29 February 2020. 4. The further complaint, in the form of a recorded statement, made by NH to Detective Senior Constable Emma Sutton and Detective Sergeant Gladwin on 2 March 2020.
I do not intend to go over all of that evidence. It is for me to decide whether the complaints were made and what their contents were.
If I find that the complaints were made substantially to the effect that each witness gave evidence of, then you can use evidence of what was said in the complaint as some evidence that such an assault did occur. The law says that because of the circumstances in which the complaint was made, a decider of fact is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against a person, namely, the accused. I am entitled to find that the complaints were made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegations are less likely to have been fabricated by each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion in this particular case and so treat the complaints as evidence of the alleged sexual assault by the accused in addition to the evidence that has been given about it in this courtroom. If I do use it as some evidence of the sexual assault, that is the subject of the charge, then what weight I give it is again a matter for me.
Whether I do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that the Complainant raised the allegations against the accused at the time and in the manner that she did, would lead you to accept the evidence given by the Complainant in her recorded statement. In other words, it makes the evidence of the Complainant more believable if she had not raised the allegations as she did
Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should ask myself is, "Did the Complainant act in the way I would expect her to act if she had been assaulted as she said she was?" "Is what she did the sort of conduct that I would expect persons who have been assaulted in that way?" If I think that the Complainant has done what I would expect someone in her position to do, that may support the Crown case because I may find that there is a consistency between the complainant's conduct and the allegations that she made against the accused Prayash Poudel.
On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted, as she described, then that may indicate that the allegations are false. But I must bear in mind when considering this issue that there may be good reasons why the Complainant did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegations must be false.
Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion.

Expert witness evidence direction

In this case, Dr Tuly Rosenfeld, Dr John Obied, Dr Eleanor Freedman and Dr Peter Walker have been called as expert witnesses. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion within his or her particular area of expertise. Other witnesses may speak only as to the facts, that is, what they saw or heard and are not permitted to express their opinions.
Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where the opinion is based on that witness's specialised knowledge.
Expert evidence is admitted to provide me with medical information relating to the complainant's mental condition and as to any potential brain injuries or diseases that the complainant may have had, and an opinion on that particular topic was within both Dr Rosenfeld and Dr Obied's expertise.
Further expert evidence was admitted to provide me with medical information regarding the likelihood of NH having visible injuries as a result of the alleged incident and an opinion on that particular topic was within Dr Freedman's expertise.
The final expert evidence that was admitted was by Dr Walker who was the complainant's GP and he provided me with medical information regarding the general health and condition of the complainant, this information was within Dr Walker's expertise. It is likely that all of the above expert evidence is outside the experience and knowledge of the average lay person.
The expert evidence is before me as part of all the evidence to assist me in determining whether the complainant's evidence is compromised as a result of her mental condition or whether she was competent and capable of giving reliable evidence, and whether there should have been physical injuries sustained as a result of the alleged assault because of the complainant's psoriasis condition. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of Dr Rosenfeld, Dr Obied, Dr Freedman or Dr Walker then I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my commonsense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

Section 292C of the Criminal Procedure Act 1986 direction

It is important that I give myself a direction regarding the lack of physical injury found on the complainant. It is agreed that there were no physical injuries found on the complainant. People who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and the absence of injury or violence, or threats of injury or violence, does not necessarily mean that the complainant was not telling the truth about the alleged sexual intercourse and sexual touching.

Markuleski multiple counts direction - R v Markuleski (2001) 52 NSWLR 82

Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome.
If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainant's evidence, I would have to consider how that conclusion affects my consideration of the remaining count.
If I have a reasonable doubt about the complainant's credibility in relation to either of the counts, I might believe it difficult to see how the evidence of the complainant could be accepted in relation to the other count.

Right to silence direction

All people in this country have a right to silence - that is, to choose not to answer questions put to them by the Police. That is what the Police Officer told the accused when he was asked if he wanted to answer their questions.
There are some exceptions to this right, for example, when a Police Officer asks the legal owner of a car, who was driving it at the time of a traffic offence. But those exceptions do not apply here.
In this case, it would be quite wrong if Mr Poudel, having listened to what the Police said, and having decided to exercise his right of silence, later found that a Judge was using that fact against him. I must not do that.
Mr Poudel gave an ERISP interview. His evidence is to be assessed like that of any other witness. There is no onus on him to prove anything. The onus remains on the Crown at all times to prove the elements of each charge beyond reasonable doubt.
If I do not accept the evidence of Mr Poudel, it does not mean the Crown have proved its case against him. In that event, I put to one side the evidence of Mr Poudel and determine on the basis of all other evidence whether the Crown has proved each charge against him beyond reasonable doubt. If it has, my verdict will be guilty. If not, my verdict must be not guilty.

Failure of accused to give evidence direction

The accused has not given any evidence in response to the Crown's case.
The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.
The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.
I direct myself, as a matter of law, that the accused's decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by myself as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
I must not speculate about what might have been said in evidence if the accused had given evidence.

Liberato direction in respect of the accused's evidence

The accused gave an account of events in his letter to the nursing home. That account is to the effect that he did shower the complainant but that he did not digitally penetrate or sexually touch the complainant. He agreed in his ERISP interview that he did shower the complainant, but made no admission of wrongdoing.
It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations.
It follows from this: 1. First, if I believe the accused's evidence, obviously I must acquit. 2. Second, if I have some difficulty accepting the accused's evidence, but think it might be true, then I must acquit. 3. Third, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt?
As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charges which it brings against the accused, and there is no onus on the accused to prove that he is not guilty.

Lies used at evidence of consciousness of guilty direction

The next direction I must give myself concerns the evidence relied on by the Crown of the words written by the accused on 29 February 2020 in his handwritten report of event prepared for LGNH. The Crown says that the accused lied because that evidence was inconsistent with what the complainant told multiple witnesses including the police in her recorded interview, about the alleged sexual assault.
First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the statement written by the accused was a lie, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has. I may take this lie into account as evidence of the accused's guilt but I can only do that if I find two further things which I will refer to shortly. When I say I can take it into account as evidence of the accused's guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told a lie that this finding can prove the guilt of the accused by itself.
Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before I can use the lie as some evidence of the accused's guilt I must find two further matters proved.
First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed. It must relate to some significant circumstances or events connected with the alleged offences. The Crown says it is relevant because it amounts to a complete denial that the offences took place, whereas the accused declined to answer any questions regarding any wrongdoing, in doing so not denying or confirming that the offences took place.
Secondly, I must find that the reason the accused told this lie was because he feared that telling the truth might reveal his guilt in respect of the charges he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling lies, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, then it cannot be used as evidence of the accused's guilt. If that is the case, I should put them to one side and focus my deliberations upon the other evidence in the case.
Let me summarise what I have just said. Before I can use what the accused wrote on the 29 February 2020 after the alleged offences as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lies related to some significant circumstances or events connected with the alleged offences. I must find that the reason the accused lied was because he feared that the truth would implicate him in relation to the commission of the offences for which he is now on trial.
The defence case in relation to this issue is that he did not lie in his statement and the assaults did not occur.

Good character direction

The Accused relies on evidence from police to establish that he is a person of good character in a particular respect. That evidence was to the effect that Prayash Poudel is a person of good character namely: 1. That he has no criminal history, having never been charged with, or convicted of, any offence in New South Wales or Nepal.
The law provides that a Judge is entitled to take evidence of an accused's good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Mr Poudel is a person of good character in those respects is relevant to the likelihood of him having committed the offences alleged. I can take into account Mr Poudel's good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for myself.
Further, a Judge can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, either in his handwritten statement of events or in giving an account of the events in answer to questions asked by the Police. Whether I reason in that way is a matter for me to determine.
None of this means, of course, that good character provides Mr Poudel with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of Mr Poudel. What weight I give to the fact that the accused is a person of good character in these two respects is completely a matter for me, but I should take that fact into account in the way I have indicated to myself. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time.

Direction pursuant to 165(1)(a) & (c) of the Evidence Act 1995

I now give myself a direction concerning the evidence of the complainant, NH. I direct myself that the evidence of the complainant may be unreliable for the following reasons: 1. That the evidence relied on by the Crown, being NH's interview with police conducted on 2 March 2020 is hearsay evidence, and 2. That this evidence relied on by the Crown may be affected by age, ill health (whether physical or mental), injury or the like.
As such I should scrutinise the evidence of the complainant with care and approach her evidence with considerable caution before I act upon it.

Findings of fact

In addition to the agreed facts in Exhibit A I am required to set out my findings of fact based on the totality of the evidence in the trial. In doing so, I am mindful not only of the directions of law set out above but also that the evidence of the complainant in her recorded interview has not been tested by cross-examination. That evidence is critical to the Crown case in that unless I find it to be reliable the Crown cannot establish proof beyond reasonable doubt of the essential elements of the offences. I am also mindful, in accordance with the directions of law I have given myself that if I accept the statement made by the accused, or think it might be true, then I must acquit the accused on both counts. The issue to be determined is whether the alleged sexual assault and sexual touching took place. If I find that it did in relation to both counts, there is no issue between the parties that it occurred without the consent of NH and knowing that NH was not consenting.
On the whole of the evidence I make the following findings of fact: 1. On 30 May 2018 NH fell, suffering a traumatic brain injury involving a fracture to the occipital bone, contrecoupe cerebral damage and intracranial haemorrhages. 2. Prior to that fall NH was a 91-year-old widow, independent in personal care but requiring some assistance from family with daily tasks including shopping, cleaning, transport, some meals and her finances. 3. When assessed two months after the fall she was found to have some slight cognitive impairment. 4. A brain scan taken by Dr Brunacci on 30 May 2018 showed frontal lobe contusions, a small sub-arachnoid haemorrhage and a non-displaced skull fracture. 5. There was no evidence of cognitive testing of NH whilst she was hospitalised. 6. After being admitted to a transitional care unit NH moved into LGNH on 29 September 2018. 7. Brain scans taken on 19 November 2018 demonstrated significant frontal lobe atrophy as well as wide-spread chronic vascular disease. 8. I find that NH's cognitive impairment deteriorated over time. When assessed by Dr J Wright, a psychiatrist with a speciality in assessing the elderly, on 20 April 2021, she was diagnosed with "moderately severe dementia, likely mixed vascular and Alzheimer's dementia". 9. I find that her deterioration in cognitive function was caused by both her brain disease (dementia) and also by her traumatic brain injury (but to an uncertain extent), in that both materially contributed to her cognitive impairment. 10. Progress Notes confirmed the decline in NH's cognitive function following her admission. The incident reports referred to above include incidents of physical and verbal aggression, as well as reports by NH of events which had not occurred (for example a fall not seen on CCTV, her allegation of stolen jewellery and also an allegation concerning a bus trip that did not take place). These events may properly be categorised as delusional. A number of the allegations were also made by her, like the allegation of sexual assault against the accused, at 0300 hours. 11. I find NH suffered a significant frontal lobe impairment and accept Dr Obeid's opinion that persons suffering such impairment are capable of well systematised delusions and confabulations. That was demonstrated in NH's case within a short time of the alleged assault. Professor Rosenfeld agreed that symptoms of frontal lobe damage include individuals being aggressive, exhibiting irrational behaviour and impulse control issues. When asked whether confabulations were such a symptom he answered "not characteristically, but confabulation is more a symptom of severe memory impairment." He did however agree that the instances outlined in the Progress Notes could be associated with frontal lobe damage. 12. Importantly Professor Rosenfeld also agreed with Dr Obeid's opinion that "the difficulty for her would not be in terms of understanding to be truthful, but rather inaccurately recalling or understanding complex situations and/or differentiating them from delusional thoughts". Just as importantly, Professor Rosenfeld conceded that it was possible that the allegations made by NH were inaccurate. 13. I find that the impact of the lockdown caused by the COVID-19 Pandemic resulted in adverse effects on the mental health of older frail people in aged care facilities. 14. I find that accused is a man of good character who was well regarded in his role as a carer and team leader as a good hard working staff member, who had no criminal convictions in NSW or Nepal and I take his good character into account.

Determination

In assessing the reliability of the evidence of the complainant, particularly as it was untested by cross-examination, I must have regard to other evidence, particularly as there is no objective evidence in support her allegation of sexual assault in Count 1, ie, that there was no DNA detected following investigation and analysis.
The uncontested evidence of Ms Maharajan was that she was present during the whole of the conversation that took place between the accused and NH in which NH gave consent by nodding her head and saying "Ok" when the accused asked her if he could shower her. That was completely at odds with the version given by NH to nursing staff, to Dr Freedman, and to the police thereafter. I therefore find that NH gave consent to the accused to shower her. Later after finishing her other duties, Ms Maharajan went to NH's room and said goodnight to her to which NH responded without saying more.
Although Professor Rosenfeld placed significance on the fact that the complainant was describing a traumatic life event in coming to his opinion that she was giving an accurate account, he also acknowledged that she was occasionally repetitive and occasionally tangential during her police interview. He also agreed that it was a possibility that the allegations she made were inaccurate, and both Professor Rosenfeld and Dr Obeid agreed that it was possible the allegations occurred at another time or in other circumstances.
Also relevant was the complainant's statement that she could not remember the shower, and that she "would not even know whether it was one finger or two fingers" (in respect of Count 1). These are matters that lead me to a conclusion that, notwithstanding the impression that NH was doing her best to be truthful in her recorded interview, her evidence could not be regarded as reliable and accurate.
I must also have regard to the good character of the accused. As submitted by the Crown, I could only find that the accused lied in his statement (Exhibit F) so as to give rise to a consciousness of guilt, if I accept NH's evidence as reliable and accurate. Having regard to the whole of the evidence I find that it is a reasonable possibility that the account given by NH, untested by cross-examination, was a fixed delusion or a falsely recalled memory notwithstanding that it was repeated in substantially the same terms a number of times to nursing staff, to Dr Freedman and the police within a short period of time. Given that reasonable possibility, there is no basis upon which I could find that the accused lied in his statement so as to give rise to a consciousness of guilt. As outlined above, if I find that the version given by the accused in Exhibit F might be true, which I do find, then he must be acquitted.
On the whole of the evidence, I am not satisfied that the elements of both Count 1 and Count 2 have been established beyond reasonable doubt, and there is a reasonable inference arising from all of the evidence consistent with the innocence of the accused.
For those reasons I find the accused Not Guilty of both counts on the Indictment.

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: 12 October 2022

R v Poudel

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Cases Cited (17)