R v RAG - [2024] NSWDC 411 - NSWDC 2024 case summary — Zoe

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R v RAG

[2024] NSWDC 411

District Court of NSW|2024-09-05

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Source facts

Court

District Court of NSW

Decision date

2024-09-05

Source

Original judgment source is linked above.

Judgment (96 paragraphs)

[1]

Background

RAG, the Accused, is charged on indictment with multiple charges of indecent and sexual assault offences. The charges concern one of his children, and one of his grandchildren.
The case is conducted as a 'special hearing' under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the 'Act'). On 13 August 2024, Hanley SC DCJ found that the Accused was unfit to be tried in accordance with normal procedures.
The nature and conduct of a special hearing must conform to the requirements of s 56 of the Act. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding (s 56(1)). By reason of s 56(9), and in the absence of an election, the question whether the Accused committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.
By reason of s 56(5), the Accused is taken to have pleaded 'not guilty' to the offences with which he is charged. In this case, the Accused was, as required (s 56(3)), represented; in this case, by Counsel who participated through cross-examination of Crown witnesses, tendering (expert opinion) evidence and supplying written submissions in support of the Accused's defence.
By reason of the nature of the offences, the Accused and complainants' names and witnesses whose names would likely directly, or indirectly, reveal the complainants' names, have been anonymised in these reasons.
Because of the large number of charges, the interconnection between the complainants and the Accused and other witnesses, early in the hearing, I asked the Crown to provide a 'family tree' indicating the connections (MFI 3). An adapted version of that document is annexed (as Annexure 'A') to these reasons to assist the reader to understand the close familial relations of the witnesses in this case.

The Indictment

The charges on the indictment are set out in the following table. As indicated, I will refer to the complainant concerning charges 1 - 11 (incl) as 'CG1' and the complainant who features in charges 12 - 17 (incl) as 'CG2'. Charge The alleged offending by the Accused The offence 1 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused. Crimes Act 1900 (NSW), s 66C(2) 2 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(1) (in the alternative to 1) 3 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(1) 4 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused. Crimes Act 1900 (NSW), s 66C(2) 5 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(1) (in the alternative to 4) 6 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused. Crimes Act 1900 (NSW), s 66C(2) 7 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(1) (in the alternative to 6) 8 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused. Crimes Act 1900 (NSW), s 66C(2) 9 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(1) (in the alternative to 8) 10 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did have sexual intercourse with CG1, a person then over the age of 10 years and under the age of 16 years, namely 11-13 years of age, and the said CG1 was at that time under the authority of the Accused. Crimes Act 1900 (NSW), s 66C(2) 11 Between 1 January 1997 and 19 February 1999, at South Penrith in the State of New South Wales, did assault CG1 and at the time of the assault, committed an act of indecency on CG1, in circumstances of aggravation, namely, at the time of the offence, CG1 was under the authority of the Accused. Crimes Act 1900 (NSW), s 61M(2) (in the alternative to 10) 12 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2) 13 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2) 14 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2) 15 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2) 16 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2) 17 Between 1 January 2015 and 31 December 2016, at Cranebrook in the State of New South Wales, did assault CG2, a person then under the age of 16, namely 7-9 years and at the time of such assault did commit an act of indecency on CG2. Crimes Act 1900 (NSW), s 61M(2)

[8]

Nature and consequences of a special hearing

Hanley SC DCJ found that the Accused was unfit to be tried on the present charges in the normal way because he did not have the mental and/or cognitive capacity to understand the basic requirements of a fair and just trial. Consequently, the law requires the Accused be tried under a special procedure.
The Accused's unfitness for a normal trial may or may not be apparent as the trial proceeds. That is because unfitness for trial, may arise for any one or more of several reasons. He may not understand the nature of the charges against him, or be able to decide whether he has a defence to them. He may not be able to make a rational decision about whether he is guilty or not guilty, or how to plead to the charge. He may not be able to understand, generally, the nature of the criminal proceedings and what their course and outcome may mean to him. The unfitness may be an unfitness to give his lawyers instructions about what his defence is or how the prosecution evidence is wrong, or should be questioned, or it may be an inability to apply himself to the proceedings in an informed or constructive way. Whether or not any one of these matters is apparent to me, I must accept that the Accused is unfit to be tried in a normal way because the law insists an accused have the mental capacity to do all of these things.
The conduct of a special hearing could be different in one or more of the ways to which I have referred, that is, in the way in which the Accused is able or unable to participate or contribute to his defence. In every criminal trial an accused may or may not choose to give evidence. That remains so in a special hearing such as this, but an unfit person may not be capable of making a reasoned decision about that, or indeed other matters concerning the hearing. At a special hearing the Accused is taken to have pleaded not guilty to the charges against him, unlike in a normal trial when they may enter a plea of either guilty or not guilty. The law is intended to ensure a special hearing does not prejudice the Accused any more than his unfitness already may do. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. He must, however, have legal representation and may not, as some mentally and/or cognitively fit accused persons do, choose to represent himself.
The purpose of a special hearing is to see that justice is done, as best it can be in the circumstances, to the Accused and the prosecution. The Accused is put on trial so that the case against him can be determined. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives the Accused an opportunity of being found not guilty, in which case the charges cease to hang over his head, and if he requires further treatment, it may be given to him outside the criminal justice system.
I will have to reach my verdicts based on the limited evidence available. There are various ways evidence at a hearing of this nature may be limited. For example, the Accused may be unable to give or call evidence, or unable to give adequate instructions to his lawyers about which witnesses might be called to assist his case, or, as to matters on which cross-examination could be based.
The verdicts I may give in this case are "not guilty", "special verdict of act proven but not criminally responsible" or "the Accused committed the offence/s based on the limited evidence available".
If I find the Accused not guilty (on all charges) then that is the end of the matter, and he will be free to go. If, however, I find that on the limited evidence available he did commit some or all of the charged offences, it is my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been sentenced to a term of imprisonment, and if so, the appropriate term. If I take the view a term of imprisonment would not have been appropriate, I may impose another penalty just as I might in the case of a person fit to be tried, such as a fine, a community correction order or a community release order.
If I nominate a term of imprisonment the Accused is referred to the Mental Health Review Tribunal, to decide whether he is still suffering from a mental health and/or cognitive impairment and whether he should be detained in a mental health facility for treatment. If the Accused should become fit to be tried before the period equivalent to any term of imprisonment I might nominate expires, the Accused may be tried in the normal way for the offence, but this would be a matter for the prosecuting authorities to decide.
Finally, if I return a special verdict of act proven but not criminally responsible, it will be my duty to decide whether the Accused will be held in custody or released, either with or without conditions. I will only release him if I am satisfied it will not seriously endanger his safety or the safety of any member of the public. If the Accused is not released unconditionally, he will be referred to the Mental Health Review Tribunal which may make an order about his detention, care, treatment or release. Again, the Tribunal will not release the Accused unless satisfied his safety and the safety of the public will not be seriously endangered.
I should emphasise that although I am referring to the legal and practical consequences of any verdict I may reach, my duty is presently confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the Accused committed the offences charged. The consequences of the verdict and what happens to the Accused afterwards are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court at a later date.

[24]

The First Incident

CG1 said in her evidence that the Accused came into her bedroom. She was lying on her bed, wearing her nightie and underpants. She said that the Accused used his hands to move her legs in such a way that they were left hanging off the side of the bed. He told her to 'shush'. She said he told her to take off her underwear. He then told her to go into his bedroom and lay on his bed. She complied with this; explaining that she thought she would get into trouble if she did not.
They went into the bedroom together. No one else was present. She recalled that he was wearing shorts. She remembered certain bed lamps and recalled one was off and the other emitted a dim light. She said that the Accused told her to take her nightie off. After she had done so, he took his shorts off. They were both left naked.
She said she lay on the bed and he lay on top of her. She said he put his penis in the inside folds of her vagina and was making thrusting movements. She said she heard him grunting. She could not recall how long this occurred for; but recalled that after it stopped, they both got up and put their clothes on. She went back to her bedroom and went to bed; crying herself to sleep. She did not tell anyone what had occurred because she was scared of getting into trouble. This was the conduct the Crown particularised [4] as Counts 4 (and 5).
She recalled being 12 years of age at this time. This recollection was tied to the incident occurring shortly after her parents' separation, which she recalled occurring in 1997.
With the aid of an extract of her police statement to revive her memory (MFI 6), referring to this incident, CG1 said that the Accused had touched the whole of her vaginal area with his hand; rubbing it, the lips to her vagina and her clitoris. This was the conduct the Crown particularised as Counts 1 (and 2).
With her memory revived, CG1 also recalled that the Accused made her touch his penis in her bedroom, whilst she was sitting on her bed. She recalled that she was wearing her nightie. She recalled that he was wearing his shorts. But at the time she touched his penis, it was skin-to-skin contact. She described his penis as being very soft until it "tightened". This was the conduct the Crown particularised as Count 3.

[34]

Det Sgt Costello's evidence

Detective Sgt Peter Costello received information from GK about CG1's complaints. In 1999, he was serving with the St Mary's Local Area Command. He had received a message (from Constable Fokes). Constable Fokes was attached to the Regentville Police station, a smaller police station, within St Mary's Local Area Command. Det Sgt Costello thereafter attended GK's residence at Glenmore Park on 19 February 1999. Det Sgt Costello later said that he was not aware of the source of information that Constable Fokes received.
Reviving his memory from the documents, Det Sgt Costello recalled speaking first to GK, separately. Then he spoke to GK in CG1's presence. He took a note of what he was told in his Duty Book (the extract being Exhibit J, recording events he experienced between 3pm and 12am that day and into the early morning). He recorded an allegation that CG1 had been sexually assaulted by her father. The note also recorded that upon receiving that report, the officer returned to St Mary's Police Station, contacted DOCS, and spoke to a Milo Zhofova. This was for the purpose of setting up a referral.
Det Sgt Costello explained that he relied upon the information in his notebook to prepare the substantial content in the COPS entry (Exhibit F), which he created at 12:18am on 20 February 1999. He said in cross-examination that the second paragraph in the narrative statement on Exhibit F was sourced from GK.
He further explained that under the sub-heading 'Issues as described by the Notifier' in Exhibit G, the content was sourced from a record that Ms Zhofova, of DOCS, made of what Det Sgt Costello had told her over the phone. Det Sgt Costello had notified DOCS of CG1's complaint. He was referred in cross-examination to the second page of this document.
Pertinent entries included Det Sgt Costello's record of GK informing him that CG1 had disclosed to her mother that the Accused had been 'touching' her 'sexually', although 'he hadn't been inside her'; that CG1 had been residing with the Accused for the last 12 months and the last incident of abuse had occurred 'last week'. The police view at the time, apparently, was that the matter would be investigated by JIT Penrith and that there had not been 'direct evidence of penetration' at that point.
Det Sgt Costello indicated that the general purpose of his creation of these documents was to relay all relevant and important information for others to action.

[35]

Direction as to context/relationship evidence

Before I can convict the Accused in respect of any charge in the indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which each charge relates as alleged by the complainant.
In addition to the evidence led by the Crown specifically on the count/s in the indictment, the Crown relied upon evidence of other acts of alleged misconduct by the Accused towards the complainant. I shall, for the sake of convenience, refer to this evidence as evidence of 'other acts'.
The evidence of 'other acts' is as I described it, from GK, Det Sgt Costello and certain documents (Exhibits F, G, H and J). In summary, I have referred to the evidence of GK (conveyed to Det Sgt Costello and recorded in those documents) about what occurred on 18 February 1999, regarding a complaint by CG1 about the Accused 'touching her' most recently within a week before.
Secondly, there was also evidence from CG1's siblings, RG and SG regarding the Accused's administration of discipline: RG and SG each described it as featuring certain acts of smacking. Their half-sister, JG, referred to the Accused yelling at her. I will return to this evidence later as it relates to certain arguments that the Accused, in particular, has marshalled in his defence.
It is important that I first identify the relevance of this evidence about alleged indecent conduct a week or so before and the Accused's practices of disciplining CG1. This evidence was relied upon solely for the purpose of placing the complainant's evidence towards proof of the charges into what the Crown says is a realistic and intelligible context. By context, I mean the history of the conduct by the Accused toward CG1 as she alleges it took place.
Without the evidence of these other acts, the Crown says, it may be wondered, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in any way. If I had not heard about the evidence of other acts, I might have thought complainant CG1's evidence was less credible because it was less understandable. So, the evidence is placed before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges in the indictment.
If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant CG1 alleges was an ongoing history of the Accused's abusive conduct toward her, then what might appear to be a curious feature of the complainant's evidence - that she did not complain about what was done to her on a particular occasion - would disappear. It is for that reason the law permits a complainant to give an account of the alleged abusive history between herself or himself and an accused person in addition to the evidence given in support of the specific charges in the indictment. It is to avoid any artificiality or unreality in the presentation of the evidence from CG1. CG1's account of other acts by the Accused allows her to explain her account more naturally and intelligibly of what allegedly took place.
The Crown can therefore lead evidence of other acts of an abusive nature or character between the Accused and CG1 to place the particular charges into the context of CG1's account of the whole of the Accused's alleged conduct.
However, I must give myself some important warnings with regard to the use of this evidence of 'other acts'.
Firstly, I must not use this evidence as establishing a tendency on the part of the Accused to commit offences of the type charged. I cannot act on the basis that the Accused is likely to have committed the offence/s charged because the complainant made other allegations against him. Similarly, I must not use this evidence to establish that the Accused is of bad character; ie. in derogation of the character direction referred to in the Accused's case later in these reasons.
These are not the reason(s) the Crown relied upon this evidence. The evidence has a very limited purpose as I have explained, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
Secondly, I must not substitute the evidence of the other acts for the evidence of the specific charges in the indictment. The Crown is not charging a course of misconduct by the Accused but has charged particular allegations arising in what the complainant says, was a course of sexual misconduct. I am concerned with the particular and precise occasion alleged in each charge.
I must not reason that, just because the Accused may have done something wrong to the complainant on some or other occasion, he must have done so on the occasion(s) alleged in the indictment. I cannot punish the Accused for other acts attributed to him by finding him guilty of the charges on the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.
Returning now to GK's evidence, on 2 July 1999, GK informed police, purportedly on CG1's behalf, that CG1 did not wish to proceed with the allegation of sexual assault against the Accused (Exhibit H).

[37]

Direction

I granted leave to the Crown to cross-examine JG acknowledging that in the usual case the party who calls a witness is not permitted to cross-examine the witness: that is, the party cannot seek to test the honesty or accuracy of the witness about the evidence given by her. In the usual case it is the opposing party who has the right to test a witness by cross-examination.
However, in relation to JG, I permitted the Crown to ask her questions about the conversations she had with CG1 in 2019. This was because it appeared to me that she had given unfavourable evidence, by which (a) she said she had no memory of whom CG1 said had perpetrated abuse upon her; and (b) she had denied CG1 disclosing to JG that she had been sexually abused by the Accused when they were much younger.
I direct myself that as with all witnesses, it is a matter for me to decide what, if any, of JG's evidence I accept as honest and reliable.
I can conclude that, in spite of her initial evidence that was unfavourable to the Crown case, the evidence given by JG in Court after Ms Crown's cross-examination of her should be accepted, either wholly or in part, and be used in reaching my verdicts.
On the other hand, I may, having regard to all the circumstances in which JG's evidence was given during her cross-examination by the Crown, and with reference to her witness statement (MFI 12) was made, choose to accept it either wholly or in part instead of the evidence given by her in Court when giving evidence in chief. I can also choose to accept some part of what JG said in Court and what she said in the statement as long as I make my decision logically, rationally and by applying my common sense. I can also reject everything JG has said about this matter. It is up to me to decide what, if any, of JG's evidence I accept as honest and reliable
After she was referred to part of her witness statement, JG acknowledged that CG1 had nominated the Accused as having perpetrated abuse upon her: JG recalled that, in 2019, CG1 told her that she (CG1) had believed what CG2 was saying about the Accused because the Accused "did it to (her) when (she) was little". But JG maintained her denial that CG1 had much earlier (than 2019) disclosed to her that she, CG1, had previously been abused by the Accused.
However, when cross-examined by the Accused's Counsel, and when implicitly referred to her initial evidence (not recalling CG1's nomination of the Accused as perpetrating abuse against her), JG agreed that a revelation of that kind was not something that she would likely forget. Later under cross-examination, JG said she was shocked to learn about CG1's reference to her being abused by the Accused and indicated her belief that she had a clear memory of disclosure.

[40]

Cross-examination on behalf of the Accused

Upon cross-examination by the Accused's Counsel, GK accepted that she had told police in her police statement (MFI 12, paragraph 9) of 28 January 2020 that, when moving out in 1997, she "took all the kids with me" to Glenmore Park. She had also told police that the children had 'switched' between living with her and the Accused at Gilda Avenue in South Penrith. Specifically, she told police that she could not recall where, in 1997, they were living. Nevertheless, later in her cross-examination (for the Accused) she said her best guess was that the children were with her most of the time; although she later said that in 1997, she could not recall how long they were with her.
In her police statement (paragraph 12), GK told police that all the children had moved, with the Accused, from Gilda Avenue (South Penrith) to Minchinbury and, separately, Londonderry. When asked about that statement, she said she was unsure whether CG1 was included.
Counsel for the Accused referred GK to police documents (Exhibits F and G) and her implied representation to police that the children had lived with their father since at least the beginning of 1998 (being 12 months before her report to police in February 1999). GK was asked whether they had lived with their father much before that. GK said it was possible.
GK said she thought that by at least in 1996 (when CG1 was in Year 6), she was in the same school primary school that she had been in 1995. As was pointed out in re-examination, in 1996, GK was herself still living with the Accused.
Further, GK said she did not recall a scenario whereby CG1 had come to her and expressed a desire to live with her. GK was adamant that in the period up to February 1999, her children, including CG1, always had a choice to stay with her, instead of the Accused: she had no objection to them doing so and she had the space.
After February 1999, GK said she assumed that CG1 had returned to live with the Accused.

[43]

Directions - purposes and usages

If I determine that CG1 complained, firstly, to GK and JG, the following directions apply to how it may be used.
The first way in which the evidence may be relevant is that it can be regarded as additional evidence CG1 was assaulted in the way she described. So, not only would I have the complainant's evidence before me about being assaulted by the Accused, I would also have the description of the assault that was given to those witnesses.
The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of CG1's evidence in Court.
The Crown says the fact the complainant complained to these witnesses when she did and in the circumstances in which she did makes it more likely the complainant told me the truth about having been assaulted by the Accused.
In relation to evidence of complaint to JG, Counsel for the Accused argued that I could not be persuaded by the truth of the allegation that CG1 had disclosed to JG being the victim of child sexual abuse much closer in time to 1997. JG said she had no recollection of any past disclosure by CG1. Where there was conflict between JG's evidence and CG1's evidence, I would prefer JG's evidence. It was suggested that someone in JG's position would have an indelible memory of having her half-sibling report to her that she had been a victim of child sexual abuse by their father. This meant that CG1's recollection that she had previously disclosed to JG (before 2019) was adverse to her credibility.
In relation to evidence of complaint to GK in February 1999, Counsel for the Accused emphasised that the context for such disclosure was unusual: aside from a not insubstantial gap (1997 - February 1999) in the period between when the alleged offending occurred and the time for complaint, and the generality of that complaint to her mother (even after GK inquired into more detail of the asserted offending), CG1's disclosure or complaint to GK had occurred in circumstances where the objective facts indicate that CG1, then a 13 year old girl, wrote a note indicating that she had wanted to run away for the weekend. It was argued that she was having troubles at school. It was further argued that she had been living with her father for the previous 12 months (1998) and that she was sick of the harsh (physical) discipline the Accused administered upon her. It was further argued that she turned to GK, to ascertain whether she could live with her, but GK had turned her away.
It was also argued for the Accused that there was something of an evidentiary vacuum as to why in July 1999, on behalf of CG1, GK effectively asked police to take no further action (notwithstanding that a police officer had repeatedly sought to obtain further information about the alleged abuse) (Exhibit H). GK's statement that CG1 did not "wish to proceed" should be accepted at face value and a possible reason for CG1 not wanting to proceed was the undesirable scenario of running the gauntlet of a police investigation into, and exposing, her false allegations.
Separately, the Crown says the fact CG1 complained to SG and RG in 2019, in the circumstances in which CG1 did, also makes it more likely that CG1 is telling the truth about having been assaulted by the Accused. It seemed to me, if I did not misunderstand her, that Ms Crown also relied upon the evidence of CG1's siblings as additional evidence going to the truth of what the witnesses said.
I am dubious about this proposition; notwithstanding that the Accused did not seek any limitation upon this aspect of both witnesses' evidence; and even if I take a broad view about s 66(2A) of the Evidence Act 1995 (NSW). The parties appeared (at MFI 17, direction (i)) to agree that it was only the complaint evidence of GK and JG about what CG1 said that could be relied upon as for its truth. In the circumstances, I am inclined to think that I can only use the evidence of CG1's complaint (or more accurately, disclosure) to SG and RG as going to CG1's credit. I cannot use it as evidence that the assault occurred. The Crown did not lead the complaint evidence from these particular Crown witnesses as itself being able to prove the charge. I can only find the charges proved on the evidence given in the courtroom and not what was said at some other place and time to SG and RG.
Counsel for the Accused argued that when CG1 told RG and SG that she believed CG2 about the latter's complaint "because it happened to me", this should be regarded as a revival of lies she told to GK and thereafter the police in February 1999 and there were a number of possible reasons why she did so which could not be excluded: that she was, for the benefit of her siblings, trying to corroborate the veracity of what CG2 had explained; or, alternatively, she was trying to besmirch the Accused's name within other family members closer to the Accused than CG1; or more narrowly, his reputation among other family members with whom the Accused was closer to in comparison to CG1.
I remind myself that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

[46]

Jovanovic direction

In determining whether the prosecution has proved each offence charged whether it may concern CG1 or CG2, or both, I must not adopt a process of reasoning involving asking myself, 'Why might a complainant lie?'. Whether I find as a matter of fact that a complainant (or indeed any witness) gave untruthful and/or unreliable evidence is a critical matter for me to determine but I am mindful that there is no requirement upon the Accused to offer a reason why any witness might give untruthful and/or unreliable evidence. A witness might give untruthful and/or unreliable evidence for reasons which might never be known. Even if there be no obvious or acceptable reason for that to occur, that does not mean the witness' evidence is truthful and reliable.
It would be wrong of me to conclude that a complainant is telling the truth because there is no apparent reason, in my view, for them to lie. I cannot be satisfied that a complainant is telling the truth merely because there is no reason for them to have made up these allegations. There might be a reason for them to be untruthful that nobody knows about.
The evidence of each witness must be assessed on the basis of what the witness said and in the light of other evidence that I accept and not on the basis of whether the Accused can point to a reason why a witness might give untruthful and/or unreliable evidence. That said, any motive or reason raised by the Accused for a witness to lie and thereby give false and/or unreliable evidence can be considered in determining if a reasonable doubt exists as to whether the prosecution has discharged its burden of proof.
It is my duty to determine whether I am nevertheless satisfied that the evidence of a witness is true. This must not include any speculation as to whether there is some other reason why a witness would lie. The Accused bears no onus to prove any motive to lie. If I do not accept that a witness has any motive to lie as asserted by the Accused, I must not conclude that the evidence of that witness is thereby truthful.

[47]

Admissions in 'pretext calls'

Police applied for and obtained a surveillance device warrant to authorise sound recorded conversations between CG1 and the Accused (between 8 November 2019 and 7 January 2020). A copy of the warrant was in evidence (Exhibit L).
The Crown also tendered a briefing document (Exhibit M), which was admitted for the limited purpose of proving the fact that dialogue occurred as between the complainant and plain clothes SC Fenton before the calls were made.
On 12 November 2019, the complainant CG1 contacted the Accused, and their conversation was lawfully sound recorded. The content of that particular conversation was inconsequential.
Another call occurred on 20 November 2019. The recordings of both conversations were contained within the USB which was Exhibit C.
It was in the latter call, 20 November 2019, that the Accused made certain statements which the Crown contends were admissions.
In its schedule supplied to the Court (MFI 20), the Crown adverted to the following statements the Accused made which the Crown asserted were admissions: Page reference Content Complainant Exhibit C
5 "Look, look, I know I've done wrong in the past and I went, I went, I went away to, to get, to get help. I, ah, I mean I, I had to go, I had to go overseas to get help, you know, because, because um, I, I know what I done was wrong and, and, and, and I was mental, mentally ill, wasn't right." CG1
6 "…the worst I've ever done is, is, is just give her a cuddle" CG2
6 "I was sick in the head for a w, quite some time from previous things that have happened to me and, um you know, I had, I had, I had to go and get, get fixed up, you know, my head, my head, had to get my head fixed up…….I might've given her some kisses or somethin like that." CG2
8 "What I'm saying is that maybe she just got the wrong idea about the cuddles and the, and the kisses." CG2
9 (Because you did it to me. .So why shouldn't I believe her?) CG1 "That's right. That's what I'm saying. That's what I'm saying. Yeah. I kn, I know, I know what happened between you and me was, was, was the wrong, for the wrong reason, you know?"
10 "(It's about what I've experienced myself to, that's what makes me bele, that's what, that's why I believe her). Yeah." CG1
10 "(Maybe if you didn't do what you did to me, maybe I would believe her, sss, you know what I mean?) Yeah, I know, I know, ik now. I know. I'm sorry darlin." CG1
11 "I mean what happened between you and me has always, has always scared me, always worried me, always been at the back of my mind, you know?" CG1
11 "I, I really don't know, you know? And as you say, unfortunately, its unfortunately been because what happened between me, you and me, made, something like this, its hard for you to believe you know what I mean?" CG1
12 "I know I do, I've done some wrong things, but I … wrong things right back in the past, cause I wanted to make you a strong person which I think you are now." CG1
13 "I can't go back with everything that's happened to me in the past, you know, from where I was a, you know, when, when I was a young kind and why, why I did some wrong things, you know what I mean?" CG1
14 "I, because after what I went through with you, I had to get help and, and find out why it was like it was you know?" CG1
15 "The only thing I have ever done is, I've given her kisses and cuddles, of course I've done that." CG2

[49]

Directions on admissions in response to accusatorial statements [7]

What one person says to another is not normally relevant evidence. Here the evidence is being led because the Crown generally asserts that the content of the responses by the Accused to the statements made by the complainant CG1 to him constitute admissions that what was contained in the statement was true. It would be different had the Accused denied the allegation made or had given some innocent explanation to rebut the allegation. The evidence is only relevant if I find that the content of the Accused's statements, when confronted with the accusations, amounted to an admission that they were true.
I first need to be satisfied that the Accused heard the accusatory statements and that he actually made the admissions.
The asking of a question, containing an accusation, provides no evidence, by itself, of the truth of the implied accusatory statement by itself. Included in this is my consideration of what acts are admitted, if any, and the time period to which the admission relates.
I need to decide whether I accept that the Accused had acknowledged that what the complainant CG1 had said or put to him, either in whole or in part, was true. That is, that he intended by the posited admissions to convey what the accusations appeared to assert, and that the substance of the admissions were truthful.
Whilst it may be open for me to infer that implicit in the statements by CG1 was an accusation that the Accused had engaged in some inappropriate sexual conduct (against CG2 or CG1), it is not open to treat the accusation as alleging that the Accused committed any one or more of the particular offences with which he is charged. I therefore cannot use the admission directly in relation to that count on the indictment.
If I am not satisfied that the admissions relate specifically to any counts on the indictment, I may still determine that the admissions could be used as evidence of the existence of a sexual 'relationship' between the Accused and either or both of the complainants.
About the uses of relationship evidence, I need to direct myself further. 'Relationship evidence' helps show why certain persons acted as they did, so long as there is a reasonably apparent temporal connection between the evidence and allegedly offending conduct. I would not, however, be able to use relationship evidence to reason that, because the Accused has behaved in a certain way on a particular occasion towards the complainant with whom he had such a relationship, he must have behaved in that or a similar way on the occasion giving rise to the charge. I must not use this evidence as establishing a tendency on the part of the Accused to commit offences of the type charged. Nor could I use this evidence to reason that the Accused is the type of person who would commit the offence with which he has been charged. I cannot punish the Accused for other conduct attributed to him by finding him guilty of the charges in the indictment.
It is really a matter for me to apply my common sense and experience of life and consider what I might expect a person in the position of the Accused to do or say when faced with such an allegation, although I should also consider that people do not always act predictably in certain situations. Here I am considering the conduct of the Accused, and not the conduct of some hypothetical person in his position. I must also consider whether there is an alternative explanation for the Accused's response, other than that he accepted the truth of what the complainant CG1 said.
In this case, the Accused's Counsel put that the circumstance (reflected in Exhibits F and G) that the relationship evidence partly relied upon an uncharged act only a week or so before CG1's complaint in February 1999, in circumstances where CG1 had said in her evidence that all of the (charged) incidents occurred in 1997, was temporally remote and therefore indicative of CG1's lack of credibility.
If I accept this alternative explanation, then this part of the evidence would not advance the Crown case at all and may be put completely to one side. However, if after considering all of the circumstances I have mentioned, I am satisfied that the Accused did acknowledge, either in whole or in part, the truth of what the complainant CG1 said, then this is something I can take into account along with all of the other evidence in the case in my assessment of whether the Crown has proved the guilt of the Accused beyond reasonable doubt.
In his closing submissions, Counsel for the Accused also emphasised that there were some other matters to consider when weighing what the Accused said in the pretext calls. This included the circumstance that the Accused was speaking to CG1 in a thoroughly different environment than if he was answering questions in Court or speaking to police officers at a police station. He suggested that I should take into account concerns about the effect of leading or compound questions or assertions made by CG1, and other pressures brought to bear upon him (including a lack of notice), when evaluating the weight to be given to his responses.

[50]

Tendency evidence (applicable to all counts)

Part of the Crown case is that the Accused had a tendency to have a particular state of mind and a tendency to act in a particular way. Each of these tendencies are relied upon as circumstances relevant to the Accused's guilt of all offences. The Crown ultimately identified these tendencies as: 1. a sexual interest in female girls aged between 7 and 13 years or younger, and his 2. tendencies to act in a particular way; namely: 1. by manipulating clothing or undressing female girls aged between 7 and 13 years as a prelude to engaging or attempting to engage in indecent acts or sexual assaults, including touching of the vagina, digital or penile penetration of the vagina; 2. engaging or attempting to engage in indecent acts or sexual assaults including touching of the vagina, digital or penile penetration of the vagina; 3. doing so in circumstances where he was alone with female girls aged between 7 and 13 years; and 4. where those girls were in a familial relationship to him.
The Crown says proof of these tendencies makes it more likely he committed the offence(s) charged in the indictment.
I cannot consider evidence of the Accused's alleged tendencies as a relevant circumstance in the Crown's case unless I make several findings.
First, I must find that one or more of the acts relied upon by the Crown to establish the tendency evidence actually occurred as an act of the Accused. In determining whether I should make that finding, I need not consider each of the acts in isolation but should consider all of the evidence to determine whether each of the acts relied upon actually occurred.
In this regard, the conduct that the Crown relies upon to establish these tendencies is the charged conduct complained by the multiple complainants as being cross-admissible.
If I decide that all, or at least some, of the conduct the subject of the charges occurred, I then need to consider whether it (the Accused's conduct) enables the inference to be drawn that the Accused had the tendencies as they are alleged by the Crown. That is, I will have to determine whether the acts which I am satisfied occurred prove that the Accused had, in paraphrase: (a) the asserted sexual interest in female girls aged between 7 and 13 and (b) the asserted tendencies then to act upon such interest in the ways particularised by the Crown in the ways in which I identified earlier in these reasons.
I direct myself, consonant with recent authority, that the posited tendencies need not be proven to any particular standard; let alone that they must be proven beyond reasonable doubt [8] .
If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In such circumstances, I must put the whole issue of tendency to one side and confine myself to considering the other parts of the Crown's case.
But if I am satisfied that the acts relied upon to sustain the alleged tendencies have been proved and that the tendencies posited by the Crown have been proven, then I can use the proven tendencies when considering whether, for each separate charge, the Crown has proved the Accused's guilt beyond reasonable doubt.
However, I bear in mind that just because a person has a tendency to have a particular state of mind or to act in a particular way, does not mean that he or she must have had the state of mind, or must have acted in the particular way, on the occasion in issue. I also keep in mind that I should not give disproportionate weight to the tendency evidence.
In short, finding the Accused did have the tendency or tendencies which the Crown alleges is not enough, in itself, to prove the Accused's guilt. The question is whether the tendency or tendencies makes it more likely the Accused conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. That is the only way the alleged tendencies, if proven, may be used.
Ultimately, I must decide whether the specific offences with which the Accused has been charged have been proved. That decision must be based upon all the evidence relevant to each of the charges. This includes (but is not limited to) the evidence of each of the complainants about what the Accused did. It will also include the tendencies alleged by the Crown, provided I am satisfied it has been established in the circumstances I have described.
Counsel for the Accused, in his closing address also submitted, and I accept, that I should guard against engaging in 'coincidence' reasoning. As I referred to elsewhere in relation to complaint evidence, Mr Tuckey argued that CG2's evidence could be interpreted as amounting to a complaint about only one particular incident and reduce the strength of the suggested tendency that the Accused was sexually attracted to her.
Mr Tuckey eschewed a submission that CG2's conversations to CG1 may have contaminated her personal recollections of what the Accused had done to her.

[67]

Arguments about complaint evidence

It is for me to determine whether CG2 complained to complainant CG1 in or about late June 2019. If I determine that CG2 complained to CG1 was made, the following directions apply to how it may be used.
The first way in which the evidence may be relevant is that it can be regarded as additional evidence the complainant was assaulted in the way she described. So, not only would I have the complainant's evidence about being assaulted by the Accused, I would also have the description of the assault that was given to CG1 and what the police recorded.
On this point, the Accused emphasised that the evidence of CG2's initial complaint to her mother appeared limited to a single incident. From there, and as further time passed, and up to her record of interview on 14 October 2019, the Accused submitted that CG2 'invented' other incidents. Put another way, I understand that Mr Tuckey was submitting to me that although the complaint evidence may provide additional evidence to support CG2's evidence about one incident, it did not furnish additional evidence to support others.
Mr Tuckey also noted that the evidence of what CG1 had passed on to other family members (unsurprisingly) was no more extensive than what CG2 had told her. The evidence of what GK, JG, SL and CG2's aunts said about disclosures to them (by CG1) as to what CG2 accused the Accused of was admissible or had weight only to CG1's understanding of what CG2 had reported to her.
The second way the evidence of complaint to CG1 may be used is that it can be relevant to the truthfulness of the complainant's evidence in court or her record of interview.
The Crown says the fact CG2 complained to CG1 when CG2 did, and in the circumstances in which the CG2 did, makes it more likely the CG2 is telling the truth about having been assaulted by the Accused.
The defence disputes this. Developing his first point, Mr Tuckey indicated that from the complaint about one incident, CG2's 'story' had 'evolved'. Moreover, there was a divergence in CG2's expressed quantification of the number of incidents that had occurred. She said in Court that she described '6 to 4' incidents to CG1, but in her record of interview, she thought that there were 3 or 4 incidents.

[82]

Expert evidence direction

Adjunct Professor Rosenfeld is an expert witness. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.
The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on 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 that opinion is based on that witness's specialised knowledge.
Expert evidence is admitted to provide me with specialist medical information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person.
The expert evidence was before me as part of the evidence to assist me in determining the Accused's current mental condition. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
It is for me to decide whose evidence and whose opinion I accept in whole or in part, or whose evidence I reject altogether. I recognise that this evidence relates only to part of the case, and that while it may be of assistance to me in reaching a verdict, I must reach my verdicts having considered all the evidence.
After graduating from the University of Sydney in 1978 and obtaining a Fellowship of the Royal Australian College of Physicians in 1984 (in the specialty of Geriatric Medicine), Professor Rosenfeld has privately practised as a specialist geriatrician for nearly 40 years, a former Director of Geriatric Medicine at the Prince of Wales Hospital, a Conjoint Associate Professor at UNSW, Adjunct Associate Professor at Notre Dame University Sydney and Adjunct Professor at the University of Technology Sydney. There has been no challenge to any of Professor Rosenfeld's qualifications, and I consider the expert is well qualified.
Professor Rosenfeld's expert evidence has not been challenged. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it - for example, because it does not fit with other facts which I have found proved. That example does not apply. I accept Professor Rosenfeld's evidence.

[83]

Forensic disadvantage to the Accused consequential from delay in making complaint [9]

Professor Rosenfeld's evidence was limited to proving the circumstance that the Accused suffers from a forensic disadvantage caused by the delay in the CG1's seeking, in effect, police intervention following the report she had given in 2019 (and/or delay in reporting CG2's complaint from events allegedly occurring in 2015 or 2016).
To reiterate, the Crown alleged that the Accused offended against CG1 between 1 January 1997 and 19 February 1999. The Crown alleges that the Accused offended against CG2 between 1 January 2015 and 31 December 2016. The Accused was charged in relation to CG1 and CG2 on 30 December 2019.
There is a warning I give myself relating to this issue of the delay in, or absence of, any complaint being made by the complainants.
It is important to recognise the effects of delay in complaint on the Accused's ability to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
In this regard, I refer to the following specific difficulties, identified in the Accused's Counsel's proposed draft direction (MFI 19), encountered by the Accused in testing the evidence of the prosecution or in adducing evidence in his own case. The delay, for which the Accused is not responsible, created those difficulties.
In addition to memory loss that naturally can be expected with a substantial passage of time, the defence relies on the evidence of Adj Prof Rosenfeld (Exhibit 1 and 2), which establishes that the Accused presently suffers from brain disease associated with cognitive impairment, being moderately severe vascular dementia. Adj Prof Rosenfeld noted that the Accused asserted that he cannot recall the periods of time around the alleged offending. Adj Prof Rosenfeld explained that: "Owing to the effects of vascular disease on his brain his longer term memory and autobiographical memory (the history of his past life, relationships and friendships, activities and work) is less well preserved and patchy. In my view this is likely to result in his reduced ability to properly recall, consider and respond to matters involved in the proceedings."
This condition arose in the period of delay between the incidents alleged and the special hearing, as a result, the Accused suffers a significant disadvantage in not being able to recall the time periods surrounding the alleged offending. This disadvantage includes being unable to give an account on oath relating to the times in question and not being able to instruct his lawyers regarding relevant facts from his autobiographical memory that may be relevant to his defence.
In addition to being unable to rely on his memory to give evidence about relevant periods of time and other matters, there are additional broad categories of disadvantage: 1. First, contemporaneous records have been lost or destroyed, including those that may be apparent in the Crown case and those that may not be apparent because of the delay. 2. Secondly, potential witnesses may be deceased or otherwise unavailable for cross-examination due to the passage of time. This applies to witnesses who can be identified from the evidence in the Crown case and unknown witnesses who may have been identified had there not been the delay. 3. Thirdly, the evidence of several witnesses, including the complainants, was limited in the extent it could be tested where the witness asserted that they could not recall events with precision because of the time that has passed or because they cannot recall something. This includes the ability to test the evidence of the witnesses against the evidence of other witnesses or documents. 4. Fourthly, due to the nature of human memory, delay between events and providing accounts of those events can result in distortion, errors and amplification. 5. Fifthly, witnesses have stated that they cannot recall a particular event occurring but cannot rule it out. 6. Sixthly, several witnesses called by the Crown had incomplete memories of the relevant time periods, had there not been the delay they may have remembered details that could have assisted the Accused. 7. Seventhly, had the Accused learned of the allegations much earlier, he may have been able to recall relevant details that his Counsel could have used to cross-examine the complainants and other witnesses called by the Crown. He may have also been able to find witnesses or items of evidence that might have either contradicted the complainants and/or supported his case. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
These difficulties put the Accused at a significant disadvantage in responding to the Crown's case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainants' respective memories for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainants' inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the Accused to throw doubt on each of the complainant's evidence by pointing to circumstances which may contradict them. Had the Accused learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his Counsel in cross-examination of each of the complainants.
Another aspect of the Accused's disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
Because the Accused has been put into this situation of significant disadvantage, the Accused has been prejudiced in the conduct of his defence. As a result, I direct myself that, before I convict the Accused, I must give the prosecution case careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just been speaking about - the fact the complainants' evidence has not been tested to the extent that it otherwise could have been and the inability of the Accused to bring forward evidence to challenge it, or to support his defence.

[91]

Ms Crown's submissions

Ms Crown submitted that both complainants were honest witnesses and were not swayed during their cross-examination.
In relation to the complainant CG1, Ms Crown emphasised the strong evidence indicating that the alleged offending against her occurred in 1997, after the breakdown of the marriage. In addition to its value as an admission, the Crown noted the Accused's own temporal reference to his (generally described) misconduct occurring since he felt lonely after his then wife had left him. She further emphasised other features relating to the delay in complaint: CG1 had no practical choice but to stay with the Accused after her mother left and the Accused was, by all reports, firm in his discipline; to the point that he smacked his children (another matter that the Accused admitted to). Ms Crown argued further that it was not surprising that CG1 had not complained earlier to her mother who, in effect, it was suggested had abandoned her and her siblings and against whom it would not be a surprise if CG1 harboured feelings of resentment towards GK. It was little wonder, the Crown argued, that she held her tongue.
Ms Crown referred the Court to the evidence to support all of the four alleged incidents, which I summarised earlier. Ms Crown emphasised the level of detail that the complainant CG1 supplied and memorable markers of circumstances which had triggered definitive memories in CG1's mind, such as the condition of the lighting from the lamps in the first (and third) incidents; her babysitting her younger siblings in the second incident and the wet appearance of her naked father for the fourth incident.
Ms Crown referred to the complaint evidence in the fashion previously summarised. Emphasis was placed upon the precision of the complainant's contemporary disclosures to her mother, thereafter conveyed to Det Sgt Costello and recorded in Exhibits F-H in February 1999. Such differences as there were between what CG1 and GK about what said to each other were slight, and anyway, the contemporary records are more probative.
Ms Crown also referred to CG1's conversation with JG in 2019. Although the circumstances of the conversation may have had greater impact upon CG1 then JG, CG1's disclosure of the report she had received from CG2, as to what the Accused had done to CG2, effectively triggered or released powerful, pent-up emotions and memories of the Accused's past misconduct towards CG1. The Crown argued that notwithstanding the passage of time, her memories in 2019 of what was said were still 'fresh' and could be used as additional evidence.
Summarising, Ms Crown described the complainant CG1 as being an open witness; who did not conceal anything and whose credit could be accepted. Ms Crown invited me to convict the Accused on counts 1, 3, 4, 6, 8 and 10.
Ms Crown anticipated the Accused's arguments regarding a motive to lie. She argued that CG1's denial of lying was powerful. If she fabricated what occurred because she was fearful of the Accused disciplining her, or did not want to live with him, then there was no particular reason why she would complain in 1999 when the evidence was such that harsh physical discipline had been meted out by the Accused earlier throughout her childhood.
Further, in anticipation of another argument for the Accused, there were inconsistencies in her accounts, it was submitted that CG1 could be forgiven for that given the alleged incidents had occurred over 25 years ago and she had given accounts or made disclosures in February 1999 and in 2019. It was argued, also that when she gave a strong denial to the suggestion that in the pretext calls in 2019, she had deliberately omitted details.
As to the admissions, the Crown submitted, with reference to the complainant CG1, that the Accused had admitted to wrongdoing. The admissions fell to be considered in the context of a discussion about an accusation of sexual misconduct by the Accused against CG2. But as it progressed, the conversation moved towards CG1's accusation of sexual misconduct directed to her. The only available inference was that the Accused understood that accusations of wrongdoing carried a connotation of sexual wrongdoing. Ms Crown here emphasised CG1's evidence of the Accused's separate admission, constituted by an apology, and perhaps partial explanation, that his wrongdoing was attributable to his feeling lonely after GK had left him.
As to the complainant CG2, Ms Crown described her as being honest and reliable; straightforward and careful in her evidence. In her accounts of the incidents, she gave a good deal of evidence.
Some corroboration on matters of surrounding detail could be found in other evidence. There was objectively evidence of CG2 training for a football team as part of NAIDOC week; which was the temporal occasion when she recalled making her disclosure to her mother. Her descriptions of the layout of the caravan in which each of the alleged incidents occurred broadly corresponded with SL. Her father was strict about the eating of meals. Multiple witnesses referred to the Accused's store of biscuits within the caravan which provided an inducement or encouragement for young children to enter into the caravan.
More generally, Ms Crown addressed aspects of the Accused's case. This included evidence of his denials of wrongdoing. It was suggested that insofar as he issued to denials to SG and JG, that evidence needed to be considered in the context of being questioned by family members with whom he appeared to be on good terms; and only just after he had been released on arrest. There was other evidence by which he implausibly pointed the finger, especially towards CG2, for why she would make the allegations against him that she did; which diminished the credibility of his denials.
Ms Crown acknowledged that a (limited) direction of good character could be made, but that did not offer any defence to him and had to be weighed against strong evidence of a child and granddaughter's of his.
In anticipation of another point for the Accused, CG2's explanation for delaying complaint, was plausible. At the age of 7 or so, she was scared of her grandfather and what he might do; and apprehensive that she might be disbelieved.
In relation to the admissions said to concern CG2, the Crown emphasised that it was the Accused himself who offered statements that he had kissed and cuddled her, without being prompted by CG1.

[92]

The Accused's Counsel's address

Mr Tuckey, Counsel for the Accused, commenced his closing address by referring to CG1's evidence. He submitted that she was neither a credible nor reliable witness. Indeed, he went further in submitting that she told lies. Overlaying this, and other submissions, was the forensic disadvantage that the Accused operated under when trying to expose the weaknesses in the Crown's case concerning CG1 (mainly) and CG2 (to a lesser extent).
He argued, first, that CG1 had confused the number of incidents. She specifically professed the occurrence of 4 incidents. However, at its highest, she gave only evidence of three. There was plainly confusion in her description of the event when she recalled that the Accused appeared wet, after being in the shower.
Mr Tuckey also emphasised that there was confusion in the timeframe that CG1 had given. She had pinpointed her biological parents' separation as the main frame of reference and had vaguely indicated that the events occurred in close proximity to that event (the separation date not itself being specifically identified), after her mother had left the Accused. There was a suggestion that the incidents occurred in 1997 and there was at least an indication that the last of the incidents occurred before Christmas that year. But more (relatively) contemporaneous documents of February 1999 cast doubt upon the correctness of those recollections, including police records indicating the last of the events of abuse were asserted to have occurred only a week before her complaint in February 1999 and the suggestion in those documents was that she had lived with the Accused (only) throughout 1998. The complainant's mother had thought that the complainant and her other siblings had stayed with her for a period after she had left (assuming that was in 1997).
Confronted with her difficulties in recollection, Mr Tuckey argued that CG1 attempted to 'walk back' her evidence to the extent that she gave evidence of timing for events.
Mr Tuckey did not specifically respond to the Crown case in respect to the second of the four alleged incidents. If the first incident did not occur, and if there was a blurring of the third and fourth incidents, as he submitted there was, her credibility or reliability was so impaired that I could not accept her account of any second incident.
On the aspect of complaint evidence, Mr Tuckey separately addressed on the complainant's evidence of complaint to her mother (and police) in February 1999 and to JG and other siblings in 2019; as indicated earlier in these reasons. I noted there that his criticisms of the complaint evidence were associated with his arguments about CG1 having a motive to lie about the Accused sexually abusing her, in February 1999 and later, when she revived the asserted lies in 2019.
Mr Tuckey submitted that I should prefer GK's evidence, to the effect, that her children (including CG1) had moved to live with her after the separation from the Accused in 1996 or 1997, over CG1's recollection. If that was so, this was a further basis for doubting CG1's reliability. Counsel did, however, acknowledge that a determination of this factual question along the lines he suggested would not mean that the Accused did not have the opportunity to have committed the incidents against CG1. Counsel acknowledged that the effect of GK's evidence was that even if one parent had (informal) custody arrangements, the other would have access rights; especially on weekends.
Mr Tuckey then addressed me on the counts affecting CG2.
In this connection, he started with the complaint evidence. I have dealt with his submissions on that particular evidence above and particularly what she conveyed to her mother, CG1.
Mr Tuckey then took me through CG2's record of interview. He submitted that it was doubtful that CG2 had reliable memories of the number and sequencing of events. He submitted further that if, as she said, her intention was not to go back into the caravan again after one of the incidents, there must be doubts about other incidents that she recalled after that particular incident.
The Accused's Counsel then referred me to aspects of CG2's testimonial evidence. Particular reference was made to her expressing doubts about her memory of events, including the number of incidents that occurred.
Mr Tuckey addressed me on the tendency evidence, which I alluded to earlier.
He reminded me of the Accused's limited good character.
He also emphasised the submission, earlier recorded about motivation to lie. He did not articulate any particular motive in CG2 to lie. But in relation to CG1, he emphasised CG1's resentment to harsh physical discipline that the Accused administered to her. Mr Tuckey argued that CG1, unlike other of the Accused's children had appeared not only particularly resentful but was unreasonably so. This, it was said, also affected the reliability of her evidence.
Counsel for the Accused noted his client's denials of inappropriate conduct after he had been arrested. Mr Tuckey referred me to the significance and content of the Liberato direction.
Mr Tuckey ended up addressing about what was said in the pretext calls with CG1. He submitted that nothing that the Accused said could amount to an acceptance that he had engaged in any impropriety of a sexual character. Further, he was adamant about his denials of any impropriety of such conduct against CG2.

[93]

Charges 12-17 (incl) concerning the complainant CG2

I do not generally regard the Accused as being at any significant or even real forensic disadvantage in responding to these particular charges. It appeared to me that the alleged incidents, if they occurred at all, probably would have occurred in the second half of 2016. CG2 complained to CG1 in 2019, which complaint was promptly conveyed to police and later in that same year, the Accused was arrested. There was no proof that later in 2019, there were symptoms predictive of the mental or cognitive impairment that the Accused eventually sustained that could be caused or attributed to any significant delay in CG2 complaining to police; or real actual prejudice that followed from such unreasonable delay.
I was impressed with CG2's demeanour as a witness. She struck me as mature and composed for someone of her age. I found that she listened very carefully to each question and considered that she did her best to tell the truth of what had occurred. I rely upon more than CG2's impressive demeanour, however.
Although I accept that there was some confusion, in the course of her record of interview (which occurred not all that long after the incidents she was narrating) as to the sequencing of events, I do not place much weight upon that at all. The nature of any spontaneous or live interview is no guarantee that the interviewee's state of mind will be so serenely ordered that every purportedly traumatic event is recalled in chronological sequence. The questioning by the interviewer itself was (unsurprisingly) not chronological. CG2 noted that the incidents fell within a relatively narrow period of time. Nor do I hold it against her if there was any different sequence of events when she was asked to recall her memories when giving testimonial evidence virtually 8 years after her record of interview.
I can repose confidence in CG2's evidence for several further reasons. Some of the incidental surrounding detail she gave was independently supported (I exclude from this the complaint evidence I will soon turn to). What she said about the spatial proximity of the caravan (where she said all of the incidents occurred) to where she lived; what she said about the Accused's tendency to spoil his grandchildren with cookies; what she said about the temporal reference point to when she complained - sporting events as part of NAIDOC week in early July 2019 - was shown to be accurate. Contrary to the submission advanced for the Accused, I did not regard the consistency between the evidence that CG2 gave about them and other evidence as a pointer to CG2, then (in 2019) a 12 year old, to a complainant deliberately fixing upon incontrovertible facts as a stratagem to tell lies: there was nothing to suggest any deviousness or calculation on the part of a child of that age.
Nor, was any specific motive to lie attributed to her (unlike the Accused's Counsel imputed to CG1); although I accept of course, that there was no onus upon the Accused to identify, much less prove, any such motive.
The particular memory markers she identified for each of the three incidents the Crown ultimately charged were, in my view, natural for a 12 year old girl. I do not find persuasive the point the Accused raised about her saying that she was not going to 'go back again' (into the caravan) after the first incident. I regard her answer in re-examination on that score to be plausible. Further, and more importantly, the second and third incidents she narrated occurred in circumstances which, from her perspective (and in retrospect) would not likely give rise to an apprehension that she was likely to be assaulted again. This was particularly so with the third incident; when her younger sister accompanied her into the caravan. Even with the second incident, she had just played a game with the Accused and had motioned to leave the caravan. In hindsight, it can be accepted that in view of what she had alleged about the first incident, this was unwise, but it does not inevitably follow that, at the time of the second incident, CG2 actually apprehended risk of a further assault.
Not unimportantly, her evidence in the recorded interview was given (in October 2019) when the memories of what she said occurred were fresh in her mind.
Additional evidence to support her account arises in the complaint evidence. I have recorded my finding that the complaint she made to her mother occurred in about late June 2019. It readily was transmitted (by CG1) to other members of the extended family. Plausible reasons were given by her as to the timing of the complaint: the cultural impact of NAIDOC week and at a time when CG2 felt safe and had arrived at a point in time where she felt comfortable talking to CG1 about what had occurred. These events were within days of the visit to the police station on 29 June. CG2 was not only confiding in her mother that she had been sexually abused. She was, more specifically, also confiding in her mother, that the perpetrator was CG1's biological father. That would have been very awkward, to say the least.
Similarly, it is unsurprising if her disclosure to CG1 lacked specificity. I reject the proposition that in the circumstances the suggested disclosure of only one incident necessarily indicated that CG2 was intending to be exclusive; that is, to convey to CG1 that only a single incident of abuse had occurred. There was nothing to my mind logical why that would be so. It is not to be expected that she would give a full account to her mother what had occurred.
Further, even if I would have accepted the Accused's submission that the complaint should be treated as probative only of a single incident, that does not take the Accused's defence much further. As has been observed in this context, acceptance of proof that one of several alleged incidents against a single complainant makes it more likely that an accused may have committed alleged other generally similar offences, at least where, as here, it is suggested that the incidents were not too far separated in time [10] . In short, I find that the Accused was sexually attracted to CG2 and had acted on that attraction when he had the opportunity.
I accept, therefore the Crown's suggested usages of the complaint evidence. It is additional evidence of the truth that CG2 asserted about the incidents. It was strong evidence to support her credit.
Whilst I take into account the presumption of innocence, and the Accused's limited good character (for both limbs), experience tends to show that these matters are hardly decisive. They are not of significant weight. Whilst I also take into account the Accused's express denials to his children, in effect these were nothing more beyond bare denials of perpetrating sexual improprieties against CG2, which are naturally not persuasive and at any rate, these matters have to be considered against the weight of other evidence overall. In particular, not only do I not believe the Accused's denials, I do not consider that they might be true.
Indeed, insofar as the content of the second of the pretext calls concerned CG2, contrary to the submission advanced on his behalf, I am satisfied that the Accused appreciated that CG1 was accusing him of having acted inappropriately in a sexual way towards CG2 when he said that all that he had done was to give her kisses and cuddles. His explanatory statement that 'maybe she (CG2) just got the wrong idea' proves too much. That is to say, he made a deliberate statement that was intended to be exculpatory. I treat these statements as providing support for CG2's evidence about the character of the kissing and cuddling; proving that the kissing and cuddling that CG2 described was of a 'sexual' character.
Further, they also augment, or reinforce my earlier finding that the Accused had a sexual attraction to CG2.
Having separately considered the evidence of each of the charges alleged in respect and applicable to the three incidents, I am satisfied beyond reasonable doubt that the Crown has established the conduct that sustains each of counts 12-17 (inclusive).
The remaining question is whether that conduct can be characterised as 'indecent'.
As to the conduct relating to charge 12, I accept, beyond reasonable doubt, that touching a 9 year old granddaughter's breasts was indecent.
As to the conduct relating to charge 13, I accept, beyond reasonable doubt, that kissing that same granddaughter on her lips was indecent.
As to the conduct relating to charge 14, I accept, beyond reasonable doubt, that moving his hand inside CG2's shorts before moving it to her bottom - whether or not there was skin to skin contact - was indecent.
As to the conduct relating to charge 15, I accept, beyond reasonable doubt, that by moving his hand and touching CG2's vagina (but not inside the vagina), was indecent.
As to the conduct for charge 16 (as part of the same episode for charge 15), I accept, beyond reasonable doubt, that touching CG2's breasts, was indecent.
As to the conduct for charge 17, of kissing CG2 on the lips (also part of the same episode encompassing charges 15 and 16) I accept, beyond reasonable doubt, was indecent in those circumstances.

[94]

Charges 1-11 (incl) concerning CG1

I accept that there was a not insignificant forensic disadvantage to the Accused because of the fact that in about July 1999, police were effectively told not to proceed with CG1's complaint. That instruction forestalled a much timelier investigation, and possible prosecution, than that which eventually occurred in 2019. In particular, the delay contributed to the Crown's inability to present further evidence then it did about the circumstances in which CG1 made complaint in February 1999 and how and with what particular content, that complaint had been conveyed to police. It may also have affected the Accused's capacity to challenge Crown witnesses and call his own evidence about events in 1997. This was exemplified by CG1's evidence that the Crown relied upon as an admission (at paragraphs [178]-[179] above).
I find that CG1 was a genuine and honest witness. I accept that, certainly in comparison to CG2, CG1 had some difficulties in her memory. Of course, CG1 was narrating events many years before what CG2 narrated. To her credit, CG1 freely acknowledged her difficulties recalling the sequence of events (an acknowledgement which would unlikely have been given if she had a vengeful desire to harm the Accused). Her demeanour was such that she struck me as being flustered and anxious about the effects of her evidence; although I do not treat that as being a signpost of dishonesty. I am conscious of the effects of trauma upon memory (which I regard as virtually a matter of common knowledge) and, as she explained, and as I accept, she had tried to put behind her memories of the incidents of abuse she alleged against the Accused.
That said, especially towards the end of her evidence, CG1 tended to adopt as a mantra the response "I don't recall" in circumstances where, it seemed to me, she had had enough of the task of giving evidence and, feeling overwhelmed, she was unable to assist the Court.
A critical question is whether some memory difficulty bespeaks a general lack of reliability and if so, what effect that has on the Crown case.
Although recognising that it was unnecessary for the Accused to prove it, I do not find persuasive the Accused's argument that, as at February 1999, when she was a 13 year old, CG1 had a motive to lie or fabricate her complaints against the Accused. Fear about harsh discipline administered by the Accused, by itself, was an improbable motive; given that it appeared that CG1 had been subjected to this previously throughout her childhood. My impression is that CG1 was, by 1999 in an emotionally volatile state; so much so that she was eventually expelled from her school. The sources of that volatility were not explored by the parties and were therefore a matter for speculation. The Accused had (for other purposes) cited or adopted GK's evidence that she would have been willing to have CG1 stay with her if the latter wished; without CG1 needing to justify the request because of allegations as serious as these.
The Accused's narrative regarding CG1's motive(s) to lie ran into difficulty when considering the events of 2019. The Accused was in a forensic position (not really attributable to the forensic disadvantage of a delayed complaint) where he necessarily had to argue that what CG1 disclosed to GK (and, by extension, police) in 2019 was a 'revival' of lies she told her mother (and, by extension, police) in February 1999. The evidence, however, suggests that after GK's request that police take no action in early July 1999, CG1 had effectively bottled up what had occurred to her for a substantial period. What CG1 said to each of CG2, RG, SG and JG in 2019 about what the Accused had done to her was effectively an afterthought. That was inconsistent with the desire to harm the Accused. There was no obvious reason why she needed to emphasise to her siblings or half-sibling the reason for her belief in the truth of the complaint CG2 had made to her. There was little in it for CG1 personally to revive asserted lies she told twenty years before. By 2019, she was in a relationship with a partner and had children to look after. There was little incentive to bring about what she anticipated must have been mayhem to her extended family relations. But she disclosed, in an offhand way, what the Accused had done to her anyway. If she had lied in February 1999, about matters as serious as she alleged, I would have naturally expected that she would not want to re-open the matter and revive her 1999 lies; and her expression of support for CG2 did not require her to re-open what had occurred to her many years before.
Another impressive feature of CG1's conduct that militated against the suggestion that she was motivated to lie about the Accused was in the second of the pretext calls. As is plain from the sound recording, CG1 appeared more preoccupied with confronting what the Accused had done to her daughter than what he (in her mind) had done to her.
Although it is doubtless the case that she was a more mature woman in 2019 than she was as a thirteen old teenager, having considered the Accused's argument, I reject the argument that she was motivated to lie in February 1999 and revived those lies in 2019.
As to CG1's accounts of the incidents, I have acknowledged that for the first and fourth incidents that the Crown alleged, the complainant needed to revive her memories with reference to what she had described in her police statement 5 years before (with reference to events occurring over 20 years before). I do not treat that as fatal, however, as to my view as to her reliability.
There were specific memory markers that lent a natural plausibility to her accounts of some of the incidents. She was able to specifically recall the lighting situation in the Accused's bedroom in the family home at Gilda Avenue South Penrith; where all of the charged incidents allegedly occurred. As to the second alleged incident, CG1's memory was linked to the time when she was babysitting her younger siblings and trying to keep them staying up (in the face of house rules that required that they go to bed). She recalled the fourth incident by reference to what, to her, was the apparently hideous sight of seeing her father dripping wet. As to the first incident, this partly featured the first apparent occasion when she had touched a man (or at least her father's) penis. I do not accept the Accused's contention that ostensibly vivid memories like these prompted her to concoct, individually or in combination, memories of other incontrovertible surrounding details to lend a patina of plausibility to false allegations about what the Accused had done to her.
All four of the incidents gave rise to a common, core allegation of the Accused having used his penis to 'penetrate' (in the legal sense) CG1's vagina.
It is axiomatic that the Crown must prove beyond reasonable doubt the acts, as charged and particularised; without needing to prove every dispute about every detail associated with each incident. In saying this, I recognise that the greater the consistency between evidence given by a complainant in CG1's position as to the sequence for when events occurred and details about where precisely, within a family home, an incident occurred when the complainant was the older child in the house and left alone with the Accused, the greater the confidence I might repose in the complainant's evidence. On the other hand, it might also be the case that complete correspondence in the account of certain details might give rise to a suspicion of attempts to memorise a script.
I do not accept that CG1's credibility and reliability has been so impaired such that the Crown case in respect to charges affecting her must fail. At any rate, the Accused's argument reliant upon inconsistent recollection of surrounding detail is substantially answered by what Spigelman CJ (McClellan CJ at CL and Sully J agreeing) observed in Reed v R [2006] NSWCCA 314 at [64]: "Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person's reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness." (citations omitted)
I will come back to the specific incidents later, but before doing so, I will consider the other evidence that the Crown relied upon to support or buttress CG1's evidence.
Noting again, that not all of the circumstances in which CG1's complaint was proven, in terms of what was said to police (and when), what struck me as most material was, first, the fact of complaint by CG1 being made at all in February 1999 and secondly the nature of the complaint relating, as it did, to offending of a sexual character.
There were some issues raised by the Accused about the content of the complaint, as it appeared in Exhibits F, G and J, which I now address. One issue was the written reference in Exhibits F and G to the last incident occurring only in the week before raising complaint (in February 1999). I am satisfied that CG1 informed her mother of this, and I am slightly troubled by it in light of CG1's later evidence that all of the offending occurred in 1997. However, in my view, CG1, when asked about this (at T119-120) was (fairly) endeavouring to give the Accused the benefit of the doubt in circumstances where she had no actual recollection of what occurred at the time. I do not doubt that her recollection of some incident occurring close to February 1999 was better on 19 February 1999 than in August 2024. No count alleged that the Accused committed a sexual act close to February 1999.
It is also tolerably clear that since 1997, until the complaint was made in February 1999, CG1 remained vulnerable to the presence of her father and therefore, on her case, exposed to the risk of further offending. The Accused placed significance upon the indication, or implication, in the police records that CG1 had lived continuously with the Accused in 2018.
However, with reference to the direction I gave myself about s 294 under the CP Act, I am mindful that there may be good reasons, and moreover, even reasons held sub-consciously, why a female complainant of child sexual offending may delay in complaining. Amongst other possibilities, it may take time for a female complainant of child sexual abuse allegedly perpetrated by her biological father not only to process what had occurred when she was 11 or 12 years of age, but separately, also to summon the courage to complain about it.
On both of the above points, I am also mindful of the common law 'misconceptions' direction I gave myself that as trier of fact, I should not adopt stereotypical views of how a child sexual complainant would generally react; including the timing of a complaint and steps a complainant might have taken to limit or curtail further contact with the alleged perpetrator. In RM v R [2024] NSWCCA 148, Adamson JA (with whom Dhanji J and Sweeney J agreed) at paragraph [233] rejected a similar submission, founded as it was on the "dubious, if not fallacious" assumption that: "If someone has wronged you, you will cease having anything to do with them and if you continue to engage with them in the same way as you did prior to the wrongdoing, it is an indication that the wrongdoing did not happen. While the assumption may have some operation in other contexts (arms-length business dealings being a typical one), it would appear to be completely inapposite in a case such as the present."
Another point raised on the Accused's behalf is the written reference in the police documents to the reported absence of 'penetration' in the sexual activity complained about; or the alternative expression that the Accused "hadn't been inside her". By this, CG1 was referring to her vaginal cavity. The point was that this could be regarded as a legally accurate conclusion. I do not draw any inference adverse to CG1 about this. Indeed, if anything, it supports CG1's credit. The physical description was in fact consistent with her accounts of the incidents when she gave evidence; which, themselves, accord with the pertinent legal definition of sexual intercourse, being penetration of "any part of" a female's genitalia. The circumstance that CG1 (then a 13 year old girl) opined that there had been no 'penetration' carries no weight as proof of the legal conclusion that she had engaged in sexual intercourse with the Accused. Nor does Det Sgt Costello's recorded impression in the 'Action Taken' section in Exhibit G take the matter any further. He was going by and relying upon the rather generalised report (mainly by GK) of what CG1 had told GK.
On balance, I am inclined to think that the complaint to GK does provide additional evidence in support of the Crown case that the offending occurred and also enhances CG1's credibility.
I now address the Crown's reliance upon tendency evidence. I do this in circumstances where I have found that the Accused was sexually attracted to CG2 (when CG2 was about 8 or 9 years of age) and acted upon that sexual attraction against her. A common feature of the offending giving rise to the three incidents affecting CG2 was the Accused's own active role in removing CG2's clothes. Another feature was the conduct occurring in a familial setting and its being committed in the privacy of the functional equivalent to the Accused's bedroom (the caravan) when the Accused was alone with CG2. Finally, at least one of the incidents (the third) featured sexual touching of (although not inside) the vagina (with no penetration of the vaginal cavity).
CG1 was 11 or 12 years of age in 1997; the year she recalled the alleged incidents. A feature of CG1's descriptions of the alleged incidents affecting her were the Accused's coercive demands or even his own physical involvement in CG1's removal of her clothes. Further features involved the conduct allegedly occurring in a familial setting and in the Accused's bedroom (when the Accused was allegedly alone with the child). Finally, most of the alleged incidents featured touching of the vagina with no penetration of the vaginal cavity.
In my opinion, the rather striking resemblance between these features of the offending against CG2 and the alleged offending against CG1 are such that the conduct against the former is probative of the alleged offending against the latter [11] .
I accept the Crown's submission as to the asserted tendencies of the Accused, in terms of a sexual attraction to young girls (in an approximate age range of between 7 and 13 years) and tendency to act on that attraction.
I recognise that the finding I have just made does not compel the conclusion that the Accused must have acted upon his sexual attraction to the complainants on the particular occasions with which he is charged. I am cautious, also, in not giving disproportionate weight to it. I eschew coincidence reasoning.
I now return to the evidence of the second of the pretext calls. I have referred to the statements by the Accused, but they of course need to be understood by reference to the context, including the statements made by CG1.
What is apparent from them is that in that second pre-text call, on several occasions (apparent in pp 4, 6, 9 and 10 of Exhibit C), CG1 was tying the report that she had received from her daughter, CG2, of the Accused inappropriately touching the latter, with an accusation regarding the Accused's prior perpetration of sexual impropriety committed against her. At page 4, CG1 referred to the Accused having "take(n) away things from me when I was growing up". At page 6, she said that she knew exactly how CG2 felt "because I went through something similar". At page 9, CG1 said to the Accused "..you did it to me. So why shouldn't I believe her?" At page 10, she said " .. if you didn't do what you did to me, maybe I wouldn't believe her.."
I am conscious of the possibility that the Accused might have been confused of this linkage. The critical question is what the Accused understood. A striking feature of the Accused's responses was his acknowledgment of past wrongdoing. I accept the Crown's submission that this could only have been a reference to wrongdoing of a sexual nature that he inflicted upon CG1. I do not accept as a reasonable possibility that when admitting past wrongdoing (against CG1) the Accused was confining himself to a past statement of regret for only ever having inflicted harsh physical discipline against CG1 when she was much younger. It appears that he inflicted physical discipline on all of his children; not just CG1. To reiterate, the context for the conversation was discussion on the subject matter, or accusations, of sexual abuse. I am reinforced in that view by the Accused's own reference, in conjunction with his admission that he had "done wrong in the past" with his going overseas to get help for his apprehended mental illness. There is nothing in the call that obviously ties the admitted mental illness as an explanation for his merely imposing harsh discipline upon CG1; although to be fair, the Accused alludes to (at p 14), or perhaps more accurately hints at, a difficult childhood.
Further, as the Crown submitted, another part of the context for assessing the argument about the Accused's admissions was the separate evidence of the Accused attributing his past conduct to loneliness from his then wife's separation from him. It is not obvious that meting out physical discipline to a young daughter is an antidote to loneliness.
Also relevant in this context is that, as at 20 November 2019, the Accused had no awareness of CG1 having ever brought a complaint against him for inappropriate sexual touching back in February 1999. From the events of 1997 that CG1 narrated, there had been not inconsiderable contact between her and the Accused; including right through to 2015 and 2016 when the Accused lived in a caravan out the back of a house in which CG1 lived. Ordinarily, it might be supposed, that a person in the Accused's position would have no reason to suppose that, from 20 November 2019, it was likely that CG1 would complain about what the Accused had done to her. He might have had reason to anticipate that too much water had flowed under the bridge for him that made it unlikely that he might be investigated or prosecuted for any sexual misconduct he perpetrated against CG1 before the turn of the century. However, according to what he said (at p 11) that "what happened between you and me has always scared me, always worried me, always been at the back of my mind" suggested that he might well have had some appreciation that what he had done to CG1 in the past might come back to haunt him. Whatever be the reason for the statement however, in my view it decisively points to his appreciation that CG1 was referring him to his wrongdoing of a sexual kind.
I am not unmindful of the Accused's disadvantages at work when making the statements; although in the case of pretext calls, it will almost invariably be the case that the person to whom accusations are made will be, as it were, caught off-guard and accusations are apt to naturally generate defensive reactions, viewed, as they commonly tend to be, by persons, be they innocent or otherwise, as rather shocking events. I accept, further, Mr Tuckey's submissions that accusations of the type made in pretext calls did mix the vices of compound or leading questions that would not be expected to be allowed in a courtroom.
Nevertheless, the other side of the coin is that pretext calls may be probative precisely because of what they indicate is a person's spontaneous or authentic response; and not a contrived or calculating response.
I reject the Accused's submission that CG1 had deliberately omitted details in putting accusations. CG1 did not, with respect, strike me as a calculating type of person. It struck me from the sequence of topics discussed in the second pretext call that what she was primarily concerned about what the Accused had allegedly done to CG2; rather than herself. She had received no relevant guidance or instruction from the police officers as to what to say (Exhibit M) about the level of information or detail sought to be elicited from the Accused.
I now remind myself of the direction I referred to earlier. I have no difficulty accepting that the Accused heard the accusatory statements and that he said what the recording (and transcript) of the conversation indicated that he said.
I further observe that the accusations - and the answers to them - to the extent that they concern CG1, are at such a level of generality that they cannot be used as direct admissions directed to any particular count involving CG1.
I therefore place weight not only upon the circumstance that the Accused admitted past wrongdoing against CG1 which, in context, was of the nature of generalised sexual misconduct against her; but, in what amounts to something effectively similar, his omission, when presented with multiple opportunities to do so, to firmly deny that that he had ever engaged in (sexually) inappropriate conduct towards CG1.
I place weight upon this evidence as evidence of a past sexual relationship between CG1 and the Accused. I do not use it as a form of tendency reasoning; nor do I reason that because of a sexual relationship, the Accused necessarily must have engaged in the conduct alleged against him giving rise to any of the charges.
But the evidence weighs generally in favour of the Crown case and, in particular, enhances the credibility of CG1.
In the light of findings made in the Crown case concerning charges 12-17 (incl) I do not find that the Accused's prior good character (in the limited respect identified) assists him. It also follows that I place no weight upon the express denials of wrongdoing the Accused made after he had been released from arrest (to the extent that they were directed to allegations concerning CG1). In doing so, I have considered the first and second limbs of the Liberato direction.
Returning now to my assessment of the discrete incidents involving CG1.
There is force in Mr Tuckey's submission that there was no distinction in CG1's accounts of the third and fourth incidents and, in particular, it was a feature of the complainant's accounts of those incidents that the Accused was wet after taking a shower. My view is not that neither incident occurred. I am satisfied beyond reasonable doubt that on one occasion it did occur, and that occasion was the third of the occasions that the Crown alleged.
Consequently, I am not satisfied to the requisite standard that the conduct identified as occurring in the fourth incident, which sustains counts 10 and 11, occurred.
With reference to Markuleski, I do not accept that my doubt about the occurrence of the fourth incident because of CG1's apparent conflation of the third and fourth incidents so impairs her general credibility or reliability as to be conclusive of verdicts on the other counts.
About the first incident, I agree with the Crown that the complainant could be forgiven if on details as to where the discrete incidents of offending within a singular episode (whether it was in her bedroom or his bedroom, wholly or partly) she was less than consistent. To repeat something I indicated earlier, I accept that CG1's memories of the first time that the Accused used his penis to touch her vagina, the first time he used his hand to touch her vagina and the first time he used her hand to masturbate him were, even by 1 November 2019, vivid memories in her mind.
Taking all of the evidence into account, I am satisfied beyond reasonable doubt that the alleged conduct sustaining charges 1-5 (incl) occurred.
As I understood the position, it was not in contention that acceptance of CG1's description of where the Accused had used his hand or penis to touch her vagina was such as to satisfy the definition of sexual intercourse in respect to these charges.
I am therefore satisfied beyond reasonable doubt that, with respect to the first of the alleged incidents, the charges 1, 3 and 4 are made out.
As to the second of the incidents, the Accused's Counsel made no specific submissions as to that incident.
Having found that the conduct giving rise to charges 1, 3 and 4 was established, I find that in 1997, the Accused was sexually attracted to CG1. Sexual offending against a person the Accused found sexually attractive makes it more probable that, if given the opportunity, the Accused would commit offending of this kind again. The second incident CG1 complained of (concerning charges 6 and 7) reflected essentially the same conduct that gave rise to charges 4 and 5.
I am satisfied beyond reasonable doubt that the conduct concerning the second incident, which sustains charges 6 and 7 was established. I further find that what the Accused did constituted an act of sexual intercourse. I find that charge 6 is made out.
This leaves the third incident that the Crown alleges. I touched upon this earlier.
For this incident, I noted earlier CG1's recollection that she was laying on a couch in the lounge room whilst her younger siblings were in bed. She even marked the place of the lounge (in Exhibit A). I find that she had a vivid recollection of the Accused coming out of the shower, dripping wet which, on the body of an adult male, would have left a firm impression upon a young girl (let alone the daughter of the male).
The conduct complained of was consistent also with other sexual incidents in respect to which the complainant's account has been accepted.
I am satisfied beyond reasonable doubt that the conduct complained of for charges 8 and 9 occurred. I am further satisfied that the conduct satisfied the definition of sexual intercourse.
I find that charge 8 is made out.

[96]

Endnotes

R v Sorlie (1925) 42 W.N (NSW) 152; R v O'Donoghue (2005) 151 A Crim R 597 at [21]; Fitzgerald v Kennard (1995) 38 NSWLR 184 at 187, 202.
R v Winner (1995) 79 A Crim R 528.
R v Markuleski (2001) 52 NSWLR 82.
When I refer to particulars of the charges, I do so by cross-referencing MFI 1.
Ms Crown explained, when submitting that the direction should be made in these terms, that it is sourced in common law authorities including Rao v R [2019] NSWCCA 290 at [98] and Maughan v R [2020] NSWCCA 51 at [2], [13] and [99]. Counsel for the Accused did not object to a direction being made in these terms.
Both Counsel indicated that in a context of historical allegations of child sexual abuse, the reference to the absence of consent is superfluous. It is included here since it is derived from the aforementioned authorities which did not concern underage sexual intercourse.
This was not only partly based upon an adapted version of the model direction at [2-010] of the Criminal Trials Bench Book but was also modified with reference to Victorian authorities, including Patrick v The Queen [2014] VSCA 89; Choudhary v The Queen [2013] VSCA 325 and The Queen v MMJ [2006] VSCA 226. A draft of this direction in substantially the same form was supplied to Counsel for their comment (MFI 22).
Criminal Procedure Act (1986), s 161A; The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 ("Bauer") at [86]; DPP v Benjamin Roder (a pseudonym) [2024] HCA 15 at [2], [24], [29]; Restricted Decision [2023] NSWCCA 128 at [44]. In the latter decision, the Court of Criminal Appeal indicated (at [48]) that it is unnecessary for me to direct myself (as an earlier version of the tendency direction in the Criminal Trial Bench Book indicated I should direct myself) that I should exercise caution before drawing inferences based on tendency evidence and the tendency directions should not be tied to circumstantial evidence directions requiring that all other rational inferences need to be excluded.
This is a direction made with the parties' consent: Evidence Act 1995 (NSW), s 165B.
Bauer at [50], [60]
Bauer at [58] 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: 11 September 2024

R v RAG

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Judgment (96 paragraphs)

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