R v Richard Caine

Directions of law

1. The legal directions which I have given myself are attached to this judgment and marked Annexure A. Annexure A is marked MFI 45 in the special hearing.

The evidence

1. An extensive summary of the evidence is attached to this judgment and marked Annexure B. Annexure B is marked MFI 46 in the special hearing.

The Crown case

1. The Crown case is that the evidence outlined in Annexure B establishes beyond reasonable doubt each of the elements of each of the counts.
2. The Crown case in relation to the counts concerning TD is that the resilience and persistence shown by her in prosecuting her complaints to hold the accused accountable for his offending is demonstrative of her genuine honesty and candour. The Crown submitted that, despite her emotional reactions during many stages of her evidence, that her evidence both in its content and demeanour was such that the Court would be satisfied that she is an honest, accurate and reliable witness. The Crown submitted that her evidence also established that she lacked the capacity to engineer false allegations against the accused particularly in light of her repeated evidence that she would not lie about such subjects. The Crown submitted that her distress explained some of the inconsistencies in her recollection. TD gave evidence that because her mother disbelieved her complaint when she was very young and because she felt unable to make any disclosure to her father, that she had buried memories of the accused's conduct. The effect of her evidence was that uncovering those buried memories was emotional and traumatic. The Crown submitted that in that context some inconsistencies, which the Crown submitted were relatively minor, were understandable.
3. In relation to her conversations with other complainants the Crown submitted that it was entirely understandable and human nature, for TD and other complainants to speculate about one another's identity and to speculate about who had brought the first complaint that resulted in the accused's arrest. The Crown submitted that the evidence did not establish that any of the complainants had disclosed to another complainant any of the details of their allegations or any details of the contents of their statements. On the topic of inconsistencies the Crown admitted that any inconsistencies arising from the police investigator's notes in Eagle.i were irrelevant because of the nature of the preliminary discussions that the police had with TD that ended up being noted in the database and because those notes were never shown to or adopted by TD. The Crown also submitted that the evidence concerning the weekend away in Nelson Bay did not establish that any of the complainants had colluded in any real sense. The evidence from each of the witnesses who attended that weekend was that they did not discuss any of the details of the allegations or of the contents of their statements.
4. The Crown submitted that TD's trauma was also demonstrated by her evidence that she had disposed of her own collection of memorabilia and trophies, whereas the items that had been tendered through her in relation to that topic had been obtained from a collection kept by her parents. TD described in her evidence that her disposal of her memorabilia was because those items, which were things that she otherwise would have found wonderful and been proud of, had become a nightmare. The Crown submitted that related to that was that TD had genuine Commonwealth Games and Olympic Games aspirations and TD gave evidence that she felt that those aspirations had been dashed because of the accused's conduct
5. In relation to particular inconsistencies in TD's evidence the Crown referred to her evidence that SM attended the same sleepover as her, when it would appear from SM's evidence that that was unlikely, and her evidence that she travelled with an Australian swimming team to China with SM, when SM gave evidence that TD did not go on the same trip to China as her. The Crown submitted that those inconsistencies were not such as to give rise to a reasonable doubt. In particular in relation to whether SM attended the same sleepover as TD, the Crown submitted that the court would find that she was mistaken as to the identity of the other person who attended the relevant sleepover in circumstances where TD had given evidence about numerous other girls also attending sleepovers with her.
6. The Crown submitted that in relation to each of the counts relating to TD, she gave clear detailed accounts of the circumstances and the conduct relating to each count and that those details were consistent with her evidence. She was able to give evidence of those details because she remembered them and not because TD had been contaminated by any discussion with any other complainant.
7. The Crown submitted that the lack of resistance and the lack of complaint to the accused was consistent with TD's evidence of the power imbalance and the age differential between her and the accused. She and many other witnesses gave evidence that they were scared of the accused because of his authority and coaching style. In addition TD, and many of the other complainants, were reliant on the accused to assist them in achieving their Olympic aspirations.
8. On the topic of the layout of the Carss Park pool complex and in particular on the issue of doors and locks for access into the gym, TD gave evidence that she remembered every nook and cranny of the complex.
9. In relation to the second incident relevant to TD, TD's evidence initially was that she had some difficulty in recalling that incident. She later explained that that was because she was nervous about giving evidence. The Crown submitted that that was entirely understandable in the circumstances and that once she overcame her initial nervousness she gave evidence that was detailed, consistent and believable. Similarly in relation to the order of the incidents the Crown submitted that little turned on their order because on any view the complainant was under the relevant ages for each count at the time and that her initial difficulty recalling the order of the incidents was later clarified when her memory was refreshed.
10. In relation to the third incident in the car the Crown submitted that TD's evidence should be accepted, despite initially saying she was unsure of the order in which that incident occurred. The Crown submitted that she gave clear evidence that that incident occurred during her second winter season at Carss Park, at a time when the accused owned a unit in Kogarah and that her description of the seats in the accused's car was consistent with the evidence given by other witnesses.
11. In relation to the fourth incident the Crown submitted that TD's evidence that the elite squad still used Carss Park complex for the gym and for training runs in winter was consistent with the evidence of other witnesses and that her description and demonstration of how her mother washed her mouth out with soap after that incident was graphic and believable.
12. In relation to incident 5, in the office, the Crown submitted that any inconsistencies in TD's evidence, particularly on whether she was wearing tracksuit pants or shorts at the time were insignificant and similarly any inconsistencies or uncertainty about how the accused removed her clothing during the offending was also insignificant.
13. In relation to the mutual disclosure between TD and GT in the gutter outside TD's house the Crown submitted that TD's evidence should be accepted because it was, in all significant respects, supported by the evidence of GT. Each of them said that apart from using words of a general nature that they did not disclose to one another that day any details of their allegations. The fact that each of them gave evidence that after general words had been exchanged they each burst into tears, the Crown submitted was consistent with that event occurring as they had described.
14. In relation to incident six, relating to the events at the accused's house near Menai, the Crown submitted that TD was mistaken about the fact that SM was with her on that occasion at the house. The Crown submitted that that mistake was understandable considering TD's evidence of the ongoing sexual assaults that TD said occurred at that property over a period of time. The Crown accepted that SM's evidence established that she had not commenced swimming at Carss Park at the relevant time. The evidence, rather, established that SM and TD swam at Carss Park together in about 1980 whilst the Crown submitted that despite being mistaken as to the identity of the other girl attending the sleepover on that occasion, that the balance of TD's evidence about the incident was detailed and compelling and her evidence about the presence of pornography at the unit, alcohol and seeing the accused's horse was consistent with the evidence of other witnesses. In addition, her evidence about the disposal of bloodstained items was consistent with the evidence of a complaint witness. In addition the Crown submitted that the graphic account given by TD of having her hands tied with either reins or ropes and her evidence about seeing a condom wrapper and a condom on the bedside table after the incident are so detailed and compelling, and relevantly so different to any other complainant's account, that the court should find that her evidence was honest and reliable and not contaminated by any other complainant. On the topic of timing for that incident TD's unchallenged evidence about her dealings with the horse Dandirea on that occasion is consistent with the accused by that time already being married to his wife Maria Caine that they already had a daughter named DC because of the evidence that Dandirea was amalgamation of both of those names, Maria and DC. The Crown submitted that TD's evidence that Dandirea was in the paddock at the time of the assault on that occasion established that TD's timeline was correct, even though she was mistaken that SM was present.
15. In relation to incident seven at Cronulla the Crown submitted that the location of the massage room at Cronulla, which TD said was on the ground floor of the layout as she remembered, although inconsistent with SM's recollection that the massage room was up a flight of stairs at Cronulla, was not significant. In addition the Crown submitted that the evidence did not establish that the accused always used the same massage room at Cronulla and it was possible the accused used different rooms at different times.
16. On the topic of TD's attendance at the Hall of Fame function, the Crown submitted that the evidence from other witnesses including from defence witnesses that TD appeared to be happy at that event was not inconsistent with her evidence about the event. The Crown submitted in particular that TD gave evidence that she went to the event to see her former swimming friends and that she was happy to see them. It was submitted that her evidence about squeezing the accused cheeks and calling him a "prick" was not inconsistent with the evidence of other witnesses including those called by the defence that she embraced him and grabbed his cheeks when he arrived. The Crown submitted that her demeanour at that function has to be considered in totality and has to be considered in the context that at that time she had not disclosed her allegations. The evidence that the words she said to the accused during that function made her feel happy is not inconsistent with the evidence of other witnesses who described her as appearing to be happy on the evening.
17. On the topic of TD's attendance at the Nelson Bay weekend the Crown submitted that her evidence, together with the evidence of the other people who attended, did not establish that she or any of the other witnesses became contaminated because the evidence did not establish that they discussed any of the details. Similarly on the topic of TD's interactions with NE during the special hearing, the Crown submitted that the evidence of them meeting was insufficient to establish that there had been any contamination because the evidence did not establish that they ever discussed the detail.
18. The Crown submitted that the complaint witnesses relevant to TD, GT and CE, were supportive of a finding that she was an honest, accurate and reliable witness.
19. The Crown case in relation to counts 9 and 10 is that those counts were established by the evidence of CJ outlined in Annexure B.
20. The Crown submitted that CJ's evidence was detailed and specific including in relation to when she commenced working at the pharmacy and when she left the pharmacy to commence working for the accused. The Crown submitted that those accuracies would give the court a high degree of comfort in accepting her timeline in relation to the commission of the offences. In addition CJ's evidence about her working at the pool, travelling with the accused in his car, and running errands with the accused was generally supported by the evidence of other witnesses. In addition the Crown pointed to exhibit Q being the photographs of the heart-shaped gold pendant and note which the accused gave to CJ, to the evidence of MW and the evidence of JL as supporting her evidence. In relation to the first incident involving CJ the Crown submitted that the detailed descriptions of the events at the unit at Kogarah were indicative of her telling the truth. In particular the Crown submitted that her evidence that at the time of the penile vaginal penetration at that unit she had been a virgin and had previously not even kissed a boy, was supportive that her recollection of such a momentous event was accurate and reliable.
21. The Crown submitted that CJ's recollection that the accused told her, shortly before the incident, that he intended to be married, was supported by the marriage certificate which was tendered into evidence. The Crown also submitted that her evidence in relation to the timing of this incident was consistent with the certificate of title for the unit at Kogarah.
22. In relation to the second incident about which CJ gave evidence the Crown submitted that her detailed account of the circumstances and conduct relevant to that incident were compelling. It was submitted that any inconsistency about what she or the accused were wearing at the time was insignificant. It was submitted that her evidence that the accused attempted to have her fellate him and that she was horrified by that was a strong indication of the significance of the incident and the strength of her memory about it.
23. Generally in relation to CJ the Crown submitted the context evidence in relation to other occasions when she said the accused sexually assaulted her was strongly supportive of the truth, accuracy and reliability of her evidence. The Crown also submitted that because CJ had Olympic aspirations and because of her evidence about the accused's coaching style, her failure to resist and her delay in complaining were completely understandable. Further the Crown submitted that the evidence from complaint witness NL did not establish that there was any collusion which contaminated CJ's evidence, rather the Crown submitted that the evidence established that any disclosures were of a general nature and did not contain any detail.
24. The Crown case is that count 11, the allegation relating to TF, is established by the evidence outlined in Annexure B. Further the Crown submitted that TF was an honest, accurate and reliable witness. It was submitted by the Crown that TF's description of the accused's conduct was consistent with the evidence of Ms RF about the accused's touching of female swimmers through their swimming costumes. The Crown submitted that the accused's conduct was established on the evidence to be much more than a hug because of the description given by TF. In addition TF explained that although as a child she found the conduct confusing she said that she never forgot it because "it felt wrong". The Crown submitted that the conduct relevant to this count had a lasting impact on TF.
25. The Crown case is that counts 12 to 14, relevant to GT, are established by the evidence outlined in Annexure B. In particular the Crown submitted that because GT's evidence was that, as a 14 year old, she had no prior sexual experience, that the conduct of the accused would have had an indelible impact on GT and was likely to have been remembered by her.
26. Further the Crown submitted that GT's honesty as a witness can be demonstrated by reference to count 14 which was originally charged as an indecent assault. When she gave evidence about that event she quite frankly conceded that she could not recall if she in fact touched the accused's penis when he asked her to do so. Because of her evidence about that the Crown amended count 14 to an attempted indecent assault. The Crown submitted that if GT was giving untruthful evidence about the accused she would not have been so candid relation to count 14. Further the Crown submitted that GT's evidence about the counts relevant to her was supported by the evidence that about a year or so later she and TD had a general conversation in the gutter outside TD's home which resulted in them speaking to one another in general terms, hugging and bursting into tears. The Crown submitted that that event was consistent with the truth of the mutual complaint made by GT and TD at the time. In addition the Crown submitted that their evidence established that they did not speak to one another about details during the conversation in the gutter and that as a consequence the court would not accept that their evidence had become contaminated.
27. The Crown submitted that GT was also generally supported by the complaint evidence of her complaint to her school friend LW. Although there were some inconsistencies between the two accounts, GT and LW's evidence establishes, the Crown submits, that GT on the night of the school dance or sometime shortly afterwards complained to LW that her swimming coach had acted inappropriately. The Crown also submitted that GT's evidence of the accused's threatening phone call to her after she had attempted to take the tablets, was also supported by evidence from the complaint witness. The Crown submitted that GT's delay in complaining in detail was established by her evidence of the accused's coaching style, her evidence of the threatening phone call and her evidence about the annual receipt of Christmas cards. She described in her evidence that she had found the sending of those Christmas cards to be a reminder of the accused's previous threat for her to keep quiet. The Crown submitted that in relation to GT's dealings and conversations with other complainants that her evidence established that she did not discuss any of the details with other witnesses. The Crown submitted that the evidence was insufficient to establish that there had been any contamination of her evidence.
28. The Crown case is that counts 15 to 26, relevant to allegations concerning NL, were established by the evidence outlined in Annexure B. It was submitted by the Crown that NL's initial confusion about the order in which the incidents occurred was understandable because of the number of occasions on which he says he was sexually assaulted and because of the stress that he said he felt when giving evidence. In relation to the first incident involving NL, that is in the sauna at Carss Park, the Crown submitted that the mistaken date in NL's first statement was only one day out and was readily understandable because NL did not have access to a calendar when he made that statement. The Crown submitted that his evidence associating that incident with the barbecue celebrating his mother's birthday on 17 December 1977 should be accepted. It was submitted that his evidence of the barbecue celebration as an unusual event and one that stuck in his mind, was something that established the correct date for the first incident which involved him. In addition the Crown submitted that any error in the date contained in the first statement was subsequently corrected in NL's second statement. In addition NL always maintained that the offences occurred on a Saturday and was associated with his mother's birthday.
29. The Crown submitted that the evidence given by NL of words said to him by the accused which were detailed, including telling him that he assumed that he was not on the pill, were indicative of the accuracy of NL's evidence. The Crown submitted that his detailed and graphic account of the accused's conduct was compelling and it was submitted particularly so because of NL's evidence that he was petrified at the time and found the accused to be dominant and authoritative. The Crown submitted that these were events that were likely to remain in NL's memory for a very long time.
30. The Crown also submitted that NL's evidence concerning when acts of fellatio occurred, which were later corrected by him as his memory was refreshed, established that was doing his best to be honest and accurate and that after his memory had been refreshed he confirmed in his evidence a number of times the correct sequence of the various events. Similarly NL's initial confusion about when the accused had the conversation in the car park with NL's mother, the Crown submitted was something that was indicative of his attempts to be to be honest and accurate because he quickly corrected himself in relation to when that conversation took place. The Crown submitted generally that the first three incidents involving NL were anchored in time, those being on three sequential Saturdays 17, 24 and 31 December 1977.
31. In relation to NL's initial confusion about which incident followed a heavy training session, he initially said it was associated with the third incident and then later corrected himself and said it was related to the fourth incident. The Crown submitted that his confusion about that was insignificant and that in any event he corrected himself quickly. It was admitted that ultimately his evidence that the heavy training session related to incident four would be accepted because that incident was nearer in time to the state championships.
32. The Crown also generally submitted that the graphic accounts given by NL in relation to uncharged sexual assaults admitted as context evidence were corroborative of the account given by him and the detail which he gave relating to the charged acts. The Crown submitted that the evidence concerning the accused attending NL's house in about August or September 1995, following the publicity about another swimming coach, are corroborative of NL's evidence and, the Crown submitted, consistent with his allegations that the accused had sexual intercourse with him as an underage teenager.
33. The Crown submitted that NL's evidence was supported by complaint witnesses KF, BM and RB.
34. The Crown case is that counts 27 to 39, relating allegations by SM, were established by the evidence outlined in Annexure B. The Crown submitted in relation to SM that there was no evidence to suggest that she had ever discussed any details of the allegations with any of the other complainants. It was submitted that her evidence of the detailed circumstances and conduct by the accused strongly supported the honesty, reliability and accuracy of her evidence. In relation to the first incident involving SM, at the accused's house, the Crown submitted that her evidence was generally supported by that of other witnesses in relation to the presence of pornography and alcohol. The Crown submitted that the court would accept her evidence concerning the second incident, which also occurred at the accused's house, because it was likely to be memorable because it was the first time the accused inserted his fingers into her vagina and because of her description that she was a virgin at the time and that the experience was painful.
35. In relation to the third incident involving SM, which occurred at the Cronulla pool, the Crown submitted that the Court would accept her evidence that she remembered it because it was the first time she received a massage when she was wearing her swimming costume and that it was still wet from swimming training. The Crown repeated its submission that her evidence about the location of the room in which she was massaged, being upstairs at the Cronulla pool, when compared with other witnesses who described receiving massages downstairs at the Cronulla pool was insignificant and that there was nothing to suggest the accused did not use different rooms at different times at Cronulla for the purposes of massaging. The Crown submitted that her evidence of the aggressive way in which accused digitally penetrated her and the pain that caused is consistent with her having a clear memory of that conduct.
36. In relation to incident four involving SM at the Cronulla pool, the Crown submitted that the Court would be satisfied that her evidence about the timing of that incident is accurate. She gave evidence that it was the day after Michelle Ford won an Olympic gold medal which she said was on 26 July 1980 and that the accused was happy. It was submitted by the Crown that the significance of that gold-medal victory and the evidence of the accused's reaction to it, supports SM's evidence concerning the timing of that incident. In addition, her description as to the forceful nature of the penetration and her evidence concerning her attempts to resist, the Crown submitted were indicators of the honesty, reliability and accuracy of her account.
37. In relation to the fifth incident involving SM the Crown submitted the court would be satisfied in relation to the timing of that conduct because SM was able to place it as occurring after Ms Ford won her Olympic medal, after the squad returned to Carss Park in August 1980 and before the elite squad was kicked out in November 1980.
38. In relation to the sixth incident involving SM the Crown submitted that the Court would be satisfied that her account as to when this occurred was correct because she was able to associate it with a time after she had returned to Carss Park and at about the time of her selection into the Australian surf lifesaving team, which is supported by the dates on newspaper articles tendered into evidence.
39. The Crown submitted generally that SM's evidence could not have been contaminated by any discussion with other witnesses because she had no such discussions. It was also submitted that her evidence was supported by complaint evidence given by her husband.

The accused's case

1. Counsel for the accused submitted that the defence case had been established through cross examination of Crown witnesses and through witnesses called on behalf of the accused. It was submitted that in respect of a Crown case relying on evidence of events that occurred almost 50 years ago, that reliability of the Crown witnesses was most important. The accused submitted that the evidence of each complainant was unreliable, such that the elements of each offence on the indictment had not been proved beyond reasonable doubt. Further it was submitted that the evidence of each complainant was so unreliable that it could not be used for tendency purposes in support of the counts either intra-complainant, or in support of counts on the indictment concerning other complainants.
2. The accused submitted that the evidence in the Crown case was generally unreliable because of the effluxion of almost 50 years, the effect of the passage of time on the complainants' memories and the absence of independent corroborative evidence.
3. In relation to count one the defence submitted that the evidence was not capable of establishing the relevant date range and pointed to TD's evidence that she could not recall if she was 8, 9, 9 ½ or 10 at the time and that her memory had to be refreshed in an attempt to resolve any uncertainty.
4. In relation to count two the defence submitted that TD's evidence was vague and unclear, and particularly pointed to what was said to be uncertainty concerning whether or not her swimsuit had been removed at the time of penile vaginal intercourse.
5. In relation to count three the defence submitted that the Court would not be satisfied that the accused left the pool deck during a training session because numerous witnesses gave evidence that he did not leave the pool. Further it was submitted that there were practical difficulties with TD's evidence that the accused pulled his own shorts down after he had lifted her up and was holding her by the waist.
6. In relation to count four the defence submitted that TD's description of penile vaginal intercourse in the accused's car was vague. The defence pointed in particular to her evidence about clothes being removed. The defence also pointed to what it said were inconsistencies in her evidence about the timing of this conduct in that she said that it occurred in 1977 and also said that it was in the first or second winter after she started training at Carss Park. The defence also pointed to what it said were inconsistencies concerning who else the accused gave lifts to in his car. TD said that others who the accused drove in his car included in the NE, whereas NE denied getting driven to Cronulla.
7. In relation to count five the defence submitted that TD said that the conduct occurred in August 1977 but that other witnesses said that the pool was not used until late September or early October each year. The defence also submitted that in relation to her evidence that her swimsuit had been pulled to one side, that she later said that she had her eyes closed and that her swimmers had been removed in some way or moved to the side. The defence submitted that that established that TD had no clear recollection of that aspect of the alleged conduct relevant to count five.
8. In relation to count six the defence submitted that TD couched her evidence in uncertain terms when she described events that she said "would have" occurred. The defence also pointed to her evidence that there were numerous other incidents that occurred that she did not tell the police about and that she gave the police an incomplete account in her statements. The defence also submitted that her account was inconsistent in that she said that the accused had pulled her clothes off and then later said that he probably pulled them off somehow. The defence also submitted that her evidence of the conduct relevant to that count was vague.
9. In relation to count seven the defence submitted that TD's evidence about the house at Menai was inconsistent with the evidence of others. In particular the defence pointed to SM's evidence, who did not give evidence that she was ever at the Menai property only with TD and did not give any evidence of any restraints on the bed. In addition the defence submitted that NE gave evidence that there was always four girls at the sleepovers. The defence particularly relied on SM's evidence that she had not started training at Carss Park at least until January 1980 and possibly later. It was submitted that count seven, alleged to have occurred in late 1978 could not have occurred either at that time or at a time when SM was also in the house. The defence submitted that that established a reasonable doubt that the offending occurred at all within the date range.
10. In relation to count eight the defence submitted that there were difficulties in accepting TD's evidence about that because TD said that SM was training at the Cronulla pool at the time whereas SM's evidence was that she had not commenced training under the accused in 1979. The defence submitted that that established a reasonable doubt that the offending occurred within the date range. In addition it was submitted by the defence that evidence about a number of swimmers receiving massages at Cronulla was inconsistent with the evidence given in relation to this count. The defence also submitted that TD's evidence about whether or not she had taken her pants off establishes that she was unsure about the details of the incident.
11. Generally in relation to TD the defence submitted that she had fabricated the events and pointed to her evidence that she had buried the memories and since the accused's arrest was getting "visions". The defence also pointed to TD's evidence that she went on a trip to China with SM and submitted that that was inconsistent with SM's evidence that TD did not travel to China at the same time as her. The defence also submitted that TD's evidence about the roller door access into the gym was inconsistent with the evidence of other witnesses. The defence also submitted that the evidence of numerous witnesses established how busy the pool area was and how the accused did not leave the pool deck during training sessions and submitted that that evidence was inconsistent with TD's evidence.
12. On the topic of contamination or collusion the defence submitted that TD had been contaminated by hearing media reports that the accused had been charged with sexual offences against teenage girls whilst he was a swimming coach. It was submitted that she was also contaminated by discussions that occurred on the weekend in Nelson Bay and by her conversations with NE, SF, NL and RB.
13. On the topic of the mutual complaint between TD and GT the defence submitted that the two complainants' versions bear remarkable similarity despite the evidence that that conversation occurred almost 50 years ago. The defence also submitted that the evidence about their conversation was vague and implausible, particularly in relation to them having some unspoken understanding which caused them to burst into tears.
14. The defence submitted that TD's conduct at the Hall of Fame dinner was inconsistent with allegations that the accused had sexually assaulted her. The defence relied on the evidence of defence witnesses and Crown witnesses in relation to that event and particularly relied on evidence that TD appeared to be happy and was observed to hug and kiss the accused. It was submitted that TD's account of her conduct at that dinner was deliberately misleading and dishonest.
15. In relation to the two counts on the indictment concerning CJ, namely counts 9 and 10, the defence submitted that there were difficulties with her evidence concerning the chronology in which the offences were said to have occurred.
16. In relation to count nine the defence submitted that CJ's evidence departed from her statement to the police and that her evidence that her memory had improved since she made her statement should not be accepted. It was also submitted that CJ gave evidence that she did not have a clear memory of the conversation that occurred between her and the accused at the time and did not have a clear memory as to how or when her clothing was removed.
17. In relation to count 10 the defence submitted that there were differences between her evidence and the account she gave to the police in her statement. In particular it was submitted that there were issues in relation to the time at which the sauna was constructed inside the gym and when CJ and NL commenced the car pooling arrangement with their parents. It was also submitted CJ's evidence was inconsistent with the police investigator's note that her evidence contained what the defence submitted were implausible details given at the time.
18. It was generally submitted that CJ's evidence had become contaminated through her contact with NL and others.
19. In relation to count 11, the allegation relevant to TF, the defence submitted that TF's evidence was vague in describing the accused touching the top part of her body over her breast area. It was also submitted that the offending was unlikely to have occurred in the pool deck during a busy training session while others were present.
20. In relation to counts 12 to 14, relevant to GT, the defence submitted that there were issues of implausibility, inconsistency and contamination. In particular it was submitted by the defence that count 14 ultimately had to be amended to an attempt because of the uncertain evidence given by GT about it. It was submitted that the incidents relevant to counts 12 to 14 was implausible in that when possible times for each piece of conduct were put to her and then ultimately added up that she agreed that the total time of those components may have added up to about 32 minutes and that she may have been naked for possibly 17 minutes. It was also submitted that GT's evidence of the gym door entry from the foyer being locked and closed was inconsistent with evidence of other witnesses that the roller door was always open. It was also submitted that it was implausible that the conduct could have occurred during the middle of busy training sessions. The defence also submitted that GT's evidence was inconsistent with an investigator's note of an initial conversation with her.
21. The defence submitted that there were inconsistencies in the accounts given by GT and by the complaint witness LW. In particular, the inconsistency the defence relied on was that GT had a recollection that she told LW that the accused had touched her private parts, whereas LW said that in their initial conversation she didn't say anything, and that she just burst into tears. However LW later said that she had been told that something had occurred with a swimming coach and she got the impression that it was a negative thing.
22. The defence also submitted that GT's evidence had been contaminated from her contact with TD and from attending the weekend at Nelson Bay.
23. The defence submitted in relation to counts 15 to 26, relevant to allegations by NL, that his evidence was uncertain in relation to the conduct and uncertain in relation to the sequence of each event. It was submitted that NL at first did not remember on which occasion accused put his penis into his mouth and it was submitted that he could not initially recall was the accused inserted two fingers into his vagina. Those two issues, it was submitted on behalf the defence, cast a significant doubt on NL's evidence concerning count 18.
24. In relation to count 19 it was submitted that NL's evidence was uncertain in relation to the date being 16 December 1977 or 17 December 1977. It was submitted that NL was conflating a number of events and it was implausible that the conduct relevant to that count lasted for 20 minutes on a Saturday morning in a pool complex that was open to the public. It was also submitted in relation to that count that NL gave an implausible level of detail of events some 47 years after the alleged conduct.
25. In relation to counts 20 to 22 the defence submitted that the evidence from NL about the timing of that incident was wholly reliant on him being correct about the timing for the first incident. It was submitted that he had conflated a number of events and was getting parts of his statement mixed up. It was also submitted that it was implausible that the conduct could have lasted 10 minutes on a Saturday at a swimming pool open to the public.
26. In relation to counts 23 and 24 it was submitted that the date about which NL gave evidence was wholly dependent on him being correct about the date for the first incident. The defence submitted that NL was confused about the heavy training session being associated with this count and only later in his evidence corrected himself. The defence also pointed to NL agreeing that having a penis put in his mouth is not something he was likely to have forgotten but then later saying in his evidence that he remembered that that had occurred in relation to incident three. The defence submitted that NL was conflating incidents three and four.
27. In relation to counts 25 and 26 the defence submitted that it was implausible that the conduct could have occurred over five minutes at a busy pool on a Saturday. It was also submitted that the events relevant to incident three and incident four had been conflated by NL.
28. Generally in relation to NL's evidence the defence submitted that he had given confused evidence about when his mother was waiting for him in the car at training sessions and when the accused was said to have had a conversation with his mother in the car park. It was also submitted that the uncharged act of the accused exposing himself from the diving block was implausible and that NL had given an implausible level of detail when describing that incident.
29. Similarly in relation to the uncharged events in Brisbane the defence submitted that NL had given an implausible level of detail after the passage of 46 years in relation to the circumstances surrounding and the conduct said to have been involved in that uncharged act. It was also submitted that NL's evidence that he said "fuck you" several times in public to the accused on the pool deck demonstrated his ability to challenge and resist the accused. It was submitted that NL could easily have done the same during any of the described sexual incidents.
30. It was submitted that NL's evidence had become contaminated through his discussions with other witnesses and his communication with the complaint witnesses relevant to these counts.
31. In relation to NL's evidence concerning the accused's attendance at his house, it was submitted by the defence that the RMS records appear to establish that the accused no longer owned a Porsche at that time. The defence submitted that NL contrived a memory of this meeting with the accused with what he presumed to be a plausible detail of the accused's car ownership at the time. It was also submitted that NL had omitted from his first statement any reference to the accused attending his house. The defence also submitted that the conversation at the house was implausible given that NL later returned to work at Carss Park. Generally it was submitted that NL's continued work with the accused added to the implausibility of its allegations.
32. In relation to counts 27 to 39, relevant to allegations made by SM, the defence submitted that her evidence was implausible, inconsistent with other evidence and that there were issues with her timeline.
33. The defence submitted that SM's evidence, as well as the evidence of other witnesses, establishes that the training sessions at Carss Park and at Cronulla were relatively busy. In addition to swimmers there was evidence that assistant coaches, parents and the general public were often present. It was submitted that SM's evidence that the sleepovers were associated with Friday night time trails during winter was inconsistent in that there was no evidence from any other witnesses that those time trials occurred during winter. The defence also submitted that SM's evidence about pornography during the sleepovers was inconsistent the evidence of NE, although it was conceded it was consistent with the evidence of TD.

The directions of the law

1. In considering the evidence and the submissions that I have summarised above I remind myself of the legal directions which I have given myself. A copy of those directions is attached to this judgement and marked annexure A.

Assessment of witnesses

1. My assessment of the witnesses who gave evidence at the special hearing acknowledges that they were giving evidence about events that occurred almost 50 years ago, with the attendant impact on memory and powers of recollection that must necessarily flow from the effluxion of such a long period of time. However, I also take into account that the events about which the complainant witnesses gave evidence are likely to be of such significance that they are likely to be retained in long-term memory and recalled with some degree of accuracy even after a long period of time.
2. I find that TD was an honest and reliable witness. Despite her concessions that she had some issues with her recollection of some details, I am satisfied that her recollection was accurate in significant respects. She gave her evidence in a compelling fashion and with an understandable degree of emotion and passion. That emotion and passion are understandable in the context of her age when the incidents occurred and her previous lack of any sexual experience. It is completely understandable that the incidents about which she gave evidence have had a traumatic, emotional and lasting effect on her. Her evidence that she would not be putting herself, her husband or her family through this if everything she said was a lie was compelling.
3. My assessment of CJ was that she was a reliable, accurate and honest witness. She gave her evidence in a measured and reserved fashion and made appropriate concessions. She gave no indication that she was prone to embellishment. Her evidence associating the conduct relevant to count 9 as being not long after her 16th birthday and her ability to link the conduct to her leaving school and commencing work at the pharmacy and then working at the pool provided a reliable basis for the timing and sequence of the alleged offences.
4. TF impressed me as a somewhat reticent complainant who gave her evidence in a measured and matter of fact way. Her ability to associate the conduct relevant to count 11 with her first training session as part of the elite squad as a 13-year-old, and in the context that she ceased training at Carss Park as a 14 year old, provided a proper basis for the date range associated with that count.
5. My assessment of GT was that she was a somewhat reserved witness who was stoic in the face of cross-examination. She was steadfast in her adherence to of evidence to the sexual misconduct by the accused. I found her to be an honest, reliable and accurate witness. Her honesty as a witness was supported by the way in which she gave evidence in relation to count 14 in that she conceded that she could not be a 100% sure that her hand touched the accused's penis. Her concessions about that aspect of her evidence supported that she was doing her best to give accurate and reliable evidence.
6. NL impressed me as an intelligent and reliable witness. He gave evidence in a thoughtful and reserved manner despite difficult circumstances. In relation to NL the difficulty in giving evidence was no doubt exacerbated because he had to give evidence of traumatic events by reference to his former anatomy prior to his transitioning to male. I found him to be an honest, reliable and accurate witness. He gave appropriate concession when he could not remember and gave no impression that he was embellishing; in fact he gave the opposite impression. My finding as to his accuracy is made notwithstanding that parts of his initial evidence he later had to correct. His ability to anchor his evidence in time to events associated with a barbecue celebrating his mother's birthday on 17 December 1977 and subsequent weekends satisfied me that his evidence established that the conduct about which he gave evidence occurred within the date ranges referred to in the indictment.
7. SM impressed me as an intelligent, honest and straightforward witness. I found her to be measured when giving evidence even of a confronting and traumatic nature and I found her not to be prone to embellishment. Her ability to associate the conduct about which she gave evidence with cases that she had prosecuted as a police prosecutor and notes in her journal about that association, assisted in establishing her as a thoughtful, measured and honest witness.
8. Each of the witnesses who gave evidence in the nature of complaint evidence as outlined in Annexure B did so in an honest and straightforward manner. I find that each gave evidence to the best of their recollection as to complaints made to them.
9. In relation to MW I found him to be an impressive witness who gave his evidence in a straightforward, no nonsense way. I find his evidence of his observations of CJ and the accused and his confrontation of and conversation with the accused be honest and accurate and given the manner that had the ring of truth about it. His evidence in that respect was corroborated by his evidence that shortly after his conversation with the accused he was not only asked to leave, but that he left Carss Park pool and did not return.
10. In relation to NE although she was a more labile witness who gave evidence somewhat emotionally, I find that her evidence was given honestly and that when she contacted the complainant witnesses she was doing so in a genuine and well-meaning way. I accept the evidence that in her discussions with complainant witnesses she was endeavouring to check on their welfare. I do not accept that she was enquiring of the details of complaints or of their statements or that she was involved in any contamination of witnesses. Ideally speaking with witnesses during court adjournments in the vicinity of the courthouse is not generally advisable. However, I do not find that there is any evidence to establish that on any of those occasions any detail was discussed or that any contamination occurred. Her involvement seems to me to have motivated by good intentions for the welfare of the complainants and she had those interests at heart.
11. Similarly, in relation to SD, I found her to be an honest accurate and reliable witness. Her dealings with the complainant witnesses immediately following the publicity of the accused's arrest on 22 June 2022 and her dealings with the complainant witnesses during the weekend at Nelson Bay was to provide them with comfort and support. I do not accept that there is any evidence to establish that SD was involved in discussing the details of the case or the content of witness statements or that her involvement resulted in any contamination.
12. In relation to RB he impressed me as thoughtful and intelligent witness who gave his evidence honestly reliably and accurately. His evidence concerning contact with the complainants did not establish that he inquired about the details of their allegations or that he was involved in any contamination of witnesses.
13. In relation to the accused's half-siblings, Ms RF and JD, I reject the contention that each of those witness was motivated to give false evidence against their half-brother. Rather, I find that each of them gave their evidence in a straightforward fashion and that neither of them was prone to embellishment.
14. In relation to Mr RF, his evidence was largely uncontroversial, I accept that he was an honest reliable and accurate witness.
15. Of the police witnesses who gave evidence on behalf of the Crown I accept their evidence in relation to the use and relevance of the investigators notes, including those on Eagle.i.
16. In relation to the evidence of Acting Sgt Lisa Sargent, I accept her evidence that she told TD and GT that they could go away together for a weekend provided they did not talk about the details of their evidence. I also accept that she did so out of concern for their welfare and to ensure that they had appropriate friendship and support in the lead up to giving evidence during the hearing.
17. Turning to the witnesses called in the defence case I accept that each of them gave evidence honestly concerning their recollections. However I also take into account that, unlike the witnesses called in the Crown case, who are part of the elite swimming squad, that the defence witnesses who gave evidence of their observations at Carss Park were in the junior squads at the relevant times. As a result they were generally at the pool less frequently and for shorter periods of time than the swimmers in the elite squad and had restricted access to the gym and sauna and as a result they had less direct associations with or need to observe the accused. Although I accept they gave evidence of their observations honestly, I do not accept their evidence that the accused did not ever leave the poolside. The ability for any witness to give evidence that the accused was omnipresent at the poolside during training sessions is obviously highly doubtful. Their evidence on that topic is inconsistent with other witnesses and did not create a reasonable doubt that the accused did not have the opportunity to commit the offences as alleged. I accept the evidence of the Crown witnesses that the accused would leave the pool deck from time to time, particularly when the elite squad was engaged in long-distance training sets.

Determination

1. I am satisfied that the accused has experienced significant forensic disadvantage in being confronted with criminal allegations for criminal offending almost 50 years after the events were said to have occurred. I have taken into account that disadvantaged as outlined in the directions in annexure A.
2. Having regard to the whole of the evidence outlined in Annexure B, and taking into account the directions of law that I have given myself and the effluxion of almost 50 years between the alleged incidents and the hearing, and taking into account the submissions of each of the parties, I am satisfied that each of the elements of the offences have been established beyond reasonable doubt.
3. In relation to TD I am satisfied that her evidence was unaffected by contamination or collusion. There was no evidence that the media reports of the accused's arrest contained such detail that it would contaminate TD to enable her to give graphic and detailed accounts of the accused assaulting her. Similarly, there was no evidence that any discussions amongst the complainants contained such detail that it would contaminate TD to enable her to give graphic and detailed accounts. To the extent there were inconsistencies or vagueness in her some of evidence of the offending conduct, they were on topics that were not of significance and tangential to proof of the charges. Given her age at the time of the offending against her, it is entirely understandable that she remembered specific details about the assaults, but not tangential details. Her evidence that SM was present at various locations at the time of the conduct is an example of such tangential detail. The initial imprecision about the time and sequence of events was corrected by her in her evidence and not such that it gave rise to any reasonable doubt that the offending against her occurred. Her delay in complaining, or in not providing details when she did complain are common features of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by a victim. That is particularly so in this case because of the power imbalance and the age disparity between the accused and the complainants, because of the fear and authority he created over TD and because her ambitions and aspirations were in large measure reliant on him. Her apparent happiness at the Hall of Fame dinner is an illustration of the continuing impact of the trauma on her and does not create doubt that the offending occurred as she described. In the circumstances I have no doubt of the elements of the offences relevant to TD.
4. In relation to Count 1, being an offence of indecent assault of a female under the age of 16 years contrary to s 76 of the Crimes Act, I find that between 1 January 1975 and 31 December 1975 the accused assaulted TD who was then a female under the age of 16 years and at the time of the assault did commit an act of indecency on her when TD was about 10 years old by the accused placing his penis in her mouth in the gym at Carss Park.
5. In relation to Count 2, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 June 1975 and 31 December 1975 the accused being TD's swimming coach, engaged in penile vaginal penetration with her when she was 10 years old and his pupil in the gym at Carss Park.
6. In relation to Count 3, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 November 1975 and 14 February 1976 the accused, being TD's swimming coach, engaged in penile vaginal penetration when she was 10 years old and was his pupil in the female toilets at Carss Park.
7. In relation to Count 4, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 March 1976 and 31 August 1977 the accused, being TD's swimming coach, engaged in penile vaginal penetration with her when she was 11 or 12 years old and was his pupil in his motorcar.
8. In relation to Count 5, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 August 1977 and 30 November 1977 the accused, being TD's swimming coach, engaged in penile vaginal penetration with her when she was 12 years old and when she was his pupil in the sauna at Carss Park.
9. In relation to Count 6, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find the between 1 January 1977 and 31 March 1978 the accused, being TD's swimming coach, engaged in penile vaginal penetration with her when she was 11 or 12 years old and his pupil in the office at Carss Park.
10. In relation to Count 7, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 11 November 1977 and 31 March 1978 the accused, being TD's swimming coach, engaged in penile vaginal penetration with her when she was 11 or 12 years old and his pupil at his home at Alfords Point/Menai.
11. In relation to Count 8, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 June 1979 and 31 August 1979 the accused, being TD's swimming coach, did engage in penile vaginal penetration with her when she was 14 years old and his pupil at the Cronulla pool.
12. Having considered the evidence in relation to each of the allegations relating to TD, and having found each offence proved beyond reasonable doubt, I find that the accused had the following tendencies: 1. a tendency to have a particular state of mind, namely a sexual interest in pre-pubescent and pubescent aged females; and 2. a tendency to act on that in a particular way, namely:

• to touch the breasts of pre-pubescent and pubescent aged females for whom he was the swimming coach;
• to engage in oral sex, that is to force pre-pubescent and pubescent aged females for whom he was the swimming coach to suck his penis;
• to engage in digital penetration that is to put his finger or fingers on or into the genitals of pre-pubescent and pubescent aged females for whom he was the swimming coach; and
• to engage in penile vaginal intercourse and forced masturbation with pre-pubescent and pubescent aged females for whom he was the swimming coach.

1. In relation to CJ I am also satisfied that her evidence was not affected by contamination or collusion. For the same reasons I have expressed in relation to TD I am satisfied the media reports and discussions amongst the complainants did not contain such detail to enable CJ to give graphic and detailed accounts of the accused assaulting her. To the extent there were inconsistencies or vagueness in her some of evidence of the offending conduct, they were on topics that were not significant and tangential to proof of the charges. The imprecision about the time and sequence of events are not such as to give rise to any reasonable doubt that the offending against her occurred. Given her age at the time of the offending against her and, it is understandable that she remembered specific details about the assaults, but did not remember tangential details. For the same reason I have expressed in relation to TD, her delay in complaining, or in not providing details when she did complain are explicable and understandable because of her age at the time, the impact of trauma, the power imbalance, the age disparity and the fear and authority that the accused created over her. In the circumstances I have no doubt of the elements of the offences relevant to CJ.
2. In relation to Count 9, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 28 February 1976 and 31 July 1976 the accused, being CJ's swimming coach did engage in penile vaginal penetration with her when she was 16 years old and his pupil at his unit in Kogarah.
3. In relation to Count 10, being an offence of unlawful carnal knowledge by a teacher of a girl above the age of 10 years and under the age of 17 years being his pupil, contrary to s 73 of the Crimes Act, I find that between 1 March 1976 and 30 June 1976 the accused being CJ's swimming coach engaged in penile vaginal penetration with her when she was 16 years old and his pupil at a hotel near Parramatta Road in Sydney.
4. In relation to TF I am satisfied that her evidence was not affected by contamination or collusion. I do not accept that her evidence was vague or that her account the offending was implausible. Her description of the accused touching the top part of her body over her breast area and over her pubic area was given in detail as were the surrounding circumstances. Her description of that morning as her first time joining the elite squad and waiting for instructions from the accused after the other swimmers had dived into the pool was equally detailed. It was given in a measured way and without embellishment. I accept that as the last swimmer to dive in and because she was waiting for instructions from the accused, that he had sufficient opportunity to assault her as she said even though they were both standing on the pool deck at the time. Her evidence about the assault is also consistent with other evidence of the accused touching swimmers even when others were present. Her delay in complaining, or in not providing details when she did complain are explicable and understandable because of her age at the time, the impact of trauma, the power imbalance, the age disparity and the fear and authority he created over her. In the circumstances I have no doubt of the elements of the offence relevant to TF.

Annexure A (317998, pdf) Annexure B (827544, pdf)

Amendments 29 August 2024 - Amendment to case citation in coversheet 29 August 2024 - Amendment to annexure B attachment 30 August 2024 - Edit to coversheet information 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: 30 August 2024