R v Starke (a pseudonym)

JUDGMENT

Introduction

1. This is the first stage of two proposed stages of a sentencing hearing, being the stage at which the disputed fact is determined. The disputed fact is whether, in respect of counts 1, 3, 4, 5 and 6 the admitted sexual intercourse occurred by way of penile / vaginal intercourse as the Crown contends, or, as the offender contends, by the offender either applying his mouth or tongue to the victim’s genitalia, or by the act of fellatio. The hearing to determine this question involved hearing 2 recorded child interviews of the complainant with police, viewing the prerecorded evidence of the complainant taken pursuant to the CSOEP procedure, evidence of three family members of the complainant and the offender who are half siblings, the evidence of the officer in charge, and evidence from the offender, and took five days including submissions. As long ago as R v AJP [2004] NSWCCA 434, it was noted that it is impossible to create a hierarchy of the seriousness of the various kinds of sexual intercourse as contemplated in the statutory definition (then s 61H Crimes Act (NSW) re counts 1, 2 and 3), and it is the facts and circumstances of each case, including the nature of the intercourse, that enables proper evaluation of the objective seriousness of the offence. Apart from the actual specific act said to constitute the sexual intercourse there is little dispute as to the facts and circumstances in which it occurred, with the exception of count 6. It is also clear on the evidence, and agreed, that 5 of the 6 counts occurred at a time when the offender was either 14 or 15 years old, with the date of the sixth count to be determined. One might think therefore that not a great deal turns on the resolution of this disputed fact. Then again it has to be recognised that some forms of sexual activity may be regarded as more serious than others, something to be determined on a case-by-case basis by consideration of the context and circumstances of the offending.

2. The offender was arraigned on an indictment containing 6 counts. Counts 1, 2 and 3 are in precisely the same terms and are all under section 66A(1) of the Crimes Act (NSW) (CA). The allegation in each instance is as follows:

[That the offender] Between 1 April 2014 and 30 April 2014 at Lenox head in the state of New South Wales did have sexual intercourse with [the victim] a child then under the age of 10 years, namely 6 years.

3. Counts 4, 5 and 6 occurred in V, and so are charged under the Commonwealth Criminal Code (CCC). Again each of those counts is in precisely the same terms namely that the offender:

Between 22 May 2015 and 7 October 2017 engaged in sexual intercourse with a child namely [the victim] the child being under the age of 16 and the sexual assault having been engaged in outside Australia namely [V].

4. In the course of the hearing the submissions made concerning the definition of sexual intercourse referred to the current definition of sexual intercourse for the purpose of counts 1, 2 and 3 as contained in section 61HA of the CA which is in the following terms:

61HA Meaning of "sexual intercourse"

(1) For the purposes of this Division,

"sexual intercourse" means--

(a) the penetration to any extent of the genitalia or anus of a person by--

(i) any part of the body of another person, or

(ii) any object manipulated by another person, or

(b) the introduction of any part of the genitalia of a person into the mouth of another person, or

(c) the application of the mouth or tongue to the female genitalia, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

(2) Penetration carried out solely for proper medical or hygienic purposes is not

"sexual intercourse" for the purposes of this Division.

5. In further submissions following the hearing the Crown submitted the relevant definition was as contained in s61H as at the time of the offending, which was in the following terms:

(1) For the purposes of this Division, sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

6. The definition of sexual intercourse relevant to the Commonwealth offences is set out in section 272.4 of the CCC and is more in line with the 2014 version of the NSW legislation in that it does not have an equivalent of section 61HA(1)(c) but instead refers to cunnilingus, without any further definition.

7. A feature of this case is that the apparent position of the offender is that he maintains that his conduct did not extend beyond cunnilingus and fellatio, at least with respect to the 6 counts on the indictment, though one would think there must also have been sexual touching. I say “apparent” because there was never that I can recall a simple statement to that effect on behalf of the offender; the impression was that there may have been some other conduct, albeit not penile vaginal intercourse. In submissions the Crown stated that the offender denies any type of penetration. The Crown stated that some of the allegations of when the offender was under 14 were of digital penetration, but that this had been denied. After the hearing further submissions were invited from the parties on this point, and the submission of the offender was that he denied penetration of the vagina with his tongue and mouth, but had never asserted (which I take to be a reference to the evidence, as is proper) that his fingers or mouth did not penetrate “to any extent” the victim’s genitalia. This submission relies on the use of the word “vagina” in cross examination of the offender by the Crown Prosecutor rather than genitalia. This is addressed below, but the transcript shows the offender’s evidence in chief referring to vagina in the same way the Crown did. The “apparent” position stated above is, I find, the position.

8. As will be seen below the offender’s position, at least as to the 6 counts on the indictment, is that the only sexual acts, were of fellatio and cunnilingus.

9. In stating his position there was reference for the offender to applying his mouth or tongue to the victim’s genitalia, which are the words of subsection (1)(c) of the current definition in the CA. That position was stated by reference to the current legislation. Yet the term “cunnilingus” was also used, so could equally be a reference to the relevant 2014 legislation. The act of “cunnilingus”, as that term is used in s61H has been held to be satisfied by conduct that does not penetrate the female genitalia; see BA v R [2015] NSWCCA 189, and so is consistent with the earlier and current definition.

10. Ordinarily at a sentencing hearing in order for the Crown to be able to rely on matters adverse to the offender the onus on the Crown is to prove it beyond reasonable doubt whereas for something to be taken into account favourably to an offender the onus on the offender is on the balance of probabilities ; see R v Olbrich (1999) 199 CLR 270. However the fact in dispute here goes directly to an element of the offence in respect of which the onus lies on the Crown. The parties accept that in respect of this disputed fact the approach should be the approach that would apply at a trial. The result is that the Crown is required to prove beyond reasonable doubt that the act of sexual intercourse in relation to counts 1, 3, 4, 5, and 6 was penile / vaginal intercourse (the Crown accepts in relation to count 2 the relevant act of intercourse was that contended for by the offender, namely cunnilingus). Should the Crown fail to do so the result still remains that the offence is established but on the basis of the offender's admission of applying his mouth and tongue to the victim's genitalia. It was accepted by the Crown that in the circumstances it is appropriate that I give myself a Liberato direction. Further in the circumstances it would be appropriate that I give myself the directions of the type required by section 133 of the Criminal Procedure Act (CPA) and in line with Fleming v R (1998) 197 CLR 250, which are required when a trial proceeds by way of a judge alone trial.

Directions

11. The following directions are taken from R v Duffy, [2022] NSWDC 227 and have been adapted where necessary due to the different nature of this proceeding.

General Directions

12. I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.

13. The submissions of both the Crown Prosecutor and Counsel for the offender have been heard. I will consider those submissions and give them such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

14. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

15. I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.

16. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness’s evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.

17. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness’s evidence.

18. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

19. I note that the offender has a right to remain silent when spoken to by police. There was no interview of the offender tendered in evidence and I infer that the offender at the time of being arrested was asked to take part in an interview with police, which he declined. I note that all people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

20. In this case, it would be quite wrong if the offender having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the offender’s silence, prior to giving evidence in this hearing, cannot be used against him in any way at all.

21. This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof in respect of the disputed fact is placed on the Crown. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

22. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the offender in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established what it asserts as the act of intercourse, then I must accept the admission of the offender as to the conduct that makes out the charge.

23. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove beyond reasonable doubt that the act of intercourse was penile / vaginal.

Liberato

24. The offender in this matter did give evidence at trial. That the offender gave evidence does not alter who bears the onus of proof. That onus always remains on the Crown. His evidence is that he did not have penile vaginal intercourse, and his evidence conflicts with the evidence relied upon by the Crown. Where there is evidence of the defence that conflicts with the evidence relied upon by the Crown, it does not become a case of “who is to be believed”, or which evidence is to be preferred. Deciding such a question in favour of the prosecution does not conclude the issue as to whether the disputed fact has been proved beyond reasonable doubt. I direct myself as follows:

(a) a preference for the prosecution evidence is not enough — I must not find in favour of the Crown as to the disputed fact unless satisfied beyond reasonable doubt of the truth and reliability of the Crown evidence; (b) even if the evidence relied upon by the offender is not positively believed, I must not convict if that evidence gives rise to a reasonable doubt about the fact of penile vaginal intercourse.

25. It is not necessary I believe the offender’s evidence or account before I can find the disputed fact is not established. What I have just said can be put this way:

(a) First, if I believe the offender’s evidence obviously I must find in his favour as to the disputed fact. (b) Second, if I find difficulty in accepting the offender’s evidence but think it might be true, then I must find in his favour as to the disputed fact. (c) Third, if I do not believe the offender’s evidence then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the offender’s guilt beyond reasonable doubt?

Sexual offence Directions

26. I warn myself pursuant to s294 of the CPA that the absence of or delay in, complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint.

27. I warn myself pursuant to sections 306X and 306ZI CPA that the giving of evidence in the form of a recording made by an investigating officer, and in the form of pre recorded evidence of the complaint in accordance with CSOEP provisions, that I am not to draw any inference adverse to the offender or give the evidence any greater or lesser weight because of the evidence being given in that way. These procedures have been introduced to facilitate the taking of evidence and the offender is not to be prejudiced in any way by the use of such procedures.

28. In this case it is alleged by the offender that in respect of some counts on the indictment there are differences in different accounts of those charges given by the complainant. In such circumstances s293A CPA permits me to warn the finder of fact, that is myself, that experience shows people may not remember the details of a sexual offence in the same way each time, that trauma may affect the way people recall events, that it is common for there to be differences in accounts of a sexual offence, and that both truthful and untruthful accounts of a sexual offence may contain differences, and that it is up to the trier of fact to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

29. I note section 294AA CPA which prohibits directing, or suggesting to a finder of fact that complainants as a class are unreliable witnesses. The approach I must take is to consider the complainant’s evidence for what that evidence is, without heightening or tainting it because of the fact it is the evidence of the complainant.

Factual findings directions

Inferences

30. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. There can be no inference unless there are facts from which to infer the fact which it is sought to establish. The question is whether, on the basis of the proven facts, it is reasonable to draw the inference. Further, where the inference concerns an essential element of the offence alleged I must be satisfied of the inference beyond reasonable doubt. In that situation I should not draw such an inference from the evidence unless it is the only reasonably available inference to be drawn from the evidence.

31. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. Because of the onus of proof being on the Crown to prove the disputed fact beyond reasonable doubt, I need to be very careful about drawing inferences from the facts that I find proven. I must carefully examine any inference or conclusion I may draw and see whether it is a valid conclusion to draw from the evidence, whether it is justifiable on the evidence or whether there may be another explanation that is available which would prevent me from reaching that conclusion beyond reasonable doubt. Speculation or suspicion, even grave suspicion can play no part at all in my deliberations.

Markuleski / multiple counts

32. There are 5 charges on the indictment in respect of which the disputed fact is in issue, and one complainant.

33. If I was to find the Crown had not satisfied me beyond reasonable doubt of the disputed fact on any of the relevant 5 counts, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

34. If I find that the complainant’s evidence in relation to 1 or more of the relevant counts lacks cogency or reliability, such that I am not satisfied beyond a reasonable doubt as to the disputed fact being made out in respect of that count, then before I could be satisfied as to disputed fact as asserted by the Crown in respect of another of the relevant counts, there would need to be something about the evidence concerning those other counts that makes it different to the earlier count where I was not satisfied that the disputed fact had been made out.

Reliability

35. In considering the complainant’s evidence, I must examine her evidence carefully and determine whether or not the complainant is a reliable witness. That is that the complainant is an honest witness and a witness who is accurate in vital respects. I must examine and evaluate the complainant’s evidence in light of any criticisms that have been made of it. It is only after such evaluation that if I am satisfied, beyond reasonable doubt, that that evidence is reliable, that I could consider finding the disputed fact established. This direction follows from the onus and high standard of proof that is placed upon the Crown. I could not find the disputed fact established unless I am satisfied, beyond reasonable doubt, that the complainant is an honest and reliable witness.

36. Giving separate consideration to the individual counts means that I am entitled to find the disputed fact established on some counts and not established on some other counts if there is a logical reason for that outcome.

37. If I was to find the disputed fact not established on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the disputed fact in relation to the remaining counts.

Complaint evidence

38. Complaint evidence refers to what the complainant told others of the allegation. In this case, the evidence of this type that the Crown relies upon is the evidence of A, B and C. That evidence will be set out below.

Complaint Direction

Going to the truth of the facts asserted

39. It is for me to decide whether the complaints were made and what the contents were.

40. In determining that question I am entitled to take into account a number of factors including the circumstances in which the complaint was made, the details of the complaint, any inconsistencies between the complaint evidence and the evidence given in court, and any inconsistencies I may find, generally, in the evidence of the complainant.

41. The law says that a fact finder may use what was said in the complaint as evidence of the truth of what the complainant alleges. Depending upon the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. There may be other matters that can also be taken into account, such as if it be the case, the distressed condition of the complainant. On the other hand, it may be the complaint evidence does not support the allegations due to some deficiency about it, such as being too vague, or some other matter.

Going to credit

42. Secondly, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends that the fact that the complainant raised the allegation against the offender at the time and in the manner she did would lead me to accept the evidence she gave in the witness box (here, the recorded evidence of the child interviews and in the PREH). In other words, it may make her evidence more believable than had she not raised the allegations as she did.

43. Again, it is for me to decide whether the complaints were made. If I think that the complainant has done what you would expect someone in their position to do, that may support the Crown case because I find that there is a consistency between the complainant’s conduct and the allegation/s she makes against the offender.

44. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as they described, then that may indicate that the allegation is false or otherwise unreliable. But I bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.

45. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).

Tendency evidence

46. Part of the Crown case is that the offender has 2 tendencies. The alleged tendencies are to have a particular state of mind, namely to have a sexual interest in his biological sister, the victim, when she was raised between 4 years and 10 years, and secondly to act in a particular way, namely to have sexual intercourse with the victim when she was aged between 6 years and 10 years, the sexual intercourse being digital penetration, cunnilingus, fellatio and penile / vaginal intercourse.

47. All of the tendency evidence occurs at a time the offender was under the age of 14 and it is accepted that he cannot be criminally liable for it. There is an argument made by the offender that for that reason the tendency evidence should not be allowed and I deal with that argument below. The following directions are given in the event the tendency evidence is allowed.

48. The Crown says I would be satisfied the offender had the alleged tendencies because of his conduct as alleged prior to turning 14 (“the doli incapax conduct”). The Crown relies on the tendencies it says are established by that evidence in support of making out disputed fact.

49. I will need to consider the evidence relating to this alleged conduct of the offender for the purpose of determining whether the asserted tendencies are established. In doing so, I should consider all the evidence and decide what conduct I am satisfied occurred.

50. I recall the direction I gave about the care that needs to be applied to the drawing of inferences. I directed myself to consider whether there might be alternative explanations for the evidence. I directed that I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I should bear in mind those directions when considering this part of the evidence.

51. If I am not satisfied that there is a basis upon which the tendency could be inferred I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown’s case.

52. If I find the offender did have the tendencies, or one or more of them as stated above, then I can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential I consider in relation to each charge whether the offender acted in that particular way and or had that particular state of mind on that specific occasion.

53. Finding the offender did have the tendency or tendencies the Crown alleges is not enough to prove the disputed fact. It may assist the Crown to prove the disputed fact, but it is not enough by itself. The question is whether it makes it more likely the offender conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way any of the alleged tendencies of the offender may be used.

54. Ultimately, I must decide whether the disputed fact has been established beyond reasonable doubt in respect of the relevant counts, being 1, 3, 4, 5 and 6. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the offender did. It will also include such of the tendencies alleged by the Crown, that I am satisfied has / have been established. The Crown also relies on complaint evidence.

55. Tendency evidence cannot be used other than in the way just described. What is being sought to be proven is a tendency. I must not substitute the conduct of the offender on some other occasion relied on to establish the tendency for the conduct that is relied upon by the Crown to prove the disputed fact in respect of any of counts 1, 3, 4, 5 and 6. That is not a permissible way of reasoning.

56. The evidence the Crown relies upon to establish that the offender had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. I must be careful to avoid allowing any emotional response or prejudice to distract me from a calm and objective assessment of this issue.

57. It is convenient here to direct myself as to what I cannot use the tendency evidence for. Tendency evidence has only been placed before me for the purpose of seeking to establish the tendency asserted by the Crown against the offender and such evidence must never be used in any other way.

58. It would therefore be completely wrong to allow tendency reasoning to support a process of reasoning that because the offender committed one or more acts of a sexual or indecent nature towards the complainant that he is in some way a person of bad character and for that reason he must have committed the other offences charged. I cannot punish the offender for other conduct attributed to him by finding the disputed fact established. That is not the purpose of tendency reasoning and I must not reason in that way. I cannot use tendency reasoning in any way prejudicial to the offender unless I accept the Crown’s argument that the evidence does disclose the tendency alleged and that it does make it more likely that the offender acted in the way asserted, that is, that he had penile / vaginal intercourse as is alleged.

59. Furthermore, evidence relied upon for the purpose of establishing a tendency on the part of the offender, must not be used to reason in an automatic way, namely that the existence of the asserted tendency must mean that the offender acted in accordance with that tendency on the relevant occasions alleged on the indictment. It may mean that he did but that is not an automatic result. For each count I need to calmly and objectively consider whether or not the offender in fact acted in accordance with that tendency by committing the particular act alleged.

60. I should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the offender. I must only give it such weight I think it deserves in the context of the evidence before me.

The evidence

61. Prior to the current indictment there was an indictment with 11 counts. The amended indictment proceeds with only the last 6 counts of the first indictment. This was because the Crown accepted that in respect of the initial counts 1 to 5 inclusive the offender was under the age of 14 and the Crown could not disprove the presumption of doli incapax. Those five allegations were of 1 count of indecent assault and four counts under section 66A(1). The Crown however seeks to rely on the evidence going to those discontinued charges as tendency evidence.

62. The surrounding facts are largely agreed, and indeed something of a chronology became an exhibit (ex N). The following chronology sets out facts not in dispute, and also identifies the witnesses and their relationship to the victim and offender:

| Date | Count / Doli | Event | | 20.2.98 | | The offender’s older sister D born | | 7.1.00 | | The offender’s date of birth | | 28.4.05 | | C, the offender’s younger half brother, born | | 20.8.07 | | The victim’s date of birth. | | Jan 09 | | Offender and victim live at Z with B (the offender’s step father and the victim’s father) and A (the mother of both the victim and the offender) and C | | 2012 | | The offender moves to live with his father, E at Y. The offender continues to visit Z in school holidays until age 13. | | 2012 | Doli | Z is where the event occurs in the home in what was referred to as the paint room; no allegation of penile vaginal intercourse | | Jan 2013 | | Victim moves with her family, mother, father and brother C, to address of X | | 2013 | Doli | X; victim about 5; the offender says he touched the victim on the vagina; she says digital penetration | | Not known | Doli | Public toilet; fellatio; time not able to be identified, so cannot be said presumption of doli incapax does not apply | | 7.13-11.14 | | Victim moves with her mother, father and brother C, to address at W. Offender visits every second (or sometimes third) weekend and half of school holidays | | July 2013 -6.1.14 | Doli | Offender must be under 14, so it must be before 7 January 2014; this is the occasion referable to the bushes / archway at W. Crown alleges this is first occasion of alleged penile vaginal; the victim said it hurt; the offender denies this | | April 2014 | Count 1 | Alleged to be penile vaginal intercourse on the Easter weekend of 2014 in the garage at W; evidence of Easter egg hunt; victim alleges penile vaginal intercourse. The offender pleads guilty on basis of cunnilingus or fellatio. | | April 2014 | Count 2 | Plea of guilty to cunnilingus; this is the Easter occasion at W, same weekend as count 1 but different location, namely the bathroom | | April 2014 | Count 3 | Alleged, and denied, that on the same occasion as count 2 there was penile vaginal intercourse. Plea of guilty on basis of fellatio | | 22.5.15- 31.1.17 | Count 4 | This is alleged to be in V, the night of the feared UFO lights, so at the farmhouse in U. On the evidence this is narrowed down to the first visit to V in May 2015. The offender admits to fellatio and cunnilingus both occurring in the victim’s bedroom on 2 different nights, and so the pleas of guilty re counts 4 and 5 are on the basis of cunnilingus and fellatio from the first night. The Crown allegation is penile vaginal intercourse. | | 22.5.15- 31.1.17 | Count 5 | The plea of guilty is based on the offender’s assertion of 2 acts of intercourse on the first night in V in May 2015, so the remaining act is fellatio | | 22.5.15- 31.1.17 | Count 6 | Alleged to be at T, on his last visit to V which was 24.9.17-7.10.17. The offender denies any sexual act at T, and pleads guilty to this count on the basis of an act of intercourse on the second night at the farmhouse in May 2015, so it is either cunnilingus or fellatio. The Crown allegation is penile / vaginal intercourse which took place at T | | Sept 20 - March 21 | | In this period the victim first discloses to her mother, and at about that time to her friends F and G. Only the mother gave evidence of these three | | June 22 | | The victim complains to her father, B and to C | | Sept 22 | | The victim attends the police and soon after makes her first child statement |

63. The evidence going to the charges on the indictment will be summarised below. In cross-examination the offender consistently denied the repeated assertions being put to him that in respect of counts 1, 3, 4, 5 and 6 he had penile / vaginal intercourse with the victim. The offender admits to on each occasion engaging in sexual intercourse within the terms of the definition, as indicated in the above chronology, and also in the table below at [116]. In terms of the state legislation the admission to performing cunnilingus does not equate to an admission to penetration, something the further submissions of the Crown in response to the court's invitation make clear. The term “cunnilingus” is a reference to oral stimulation of the female genitals with the tongue or mouth, which does not require penetration; see BA v R [2015] NSWCCA 189. This is consistent with the structure of the definition as at 2014 because if cunnilingus required penetration there would be no need for the definition to include cunnilingus given that sexual intercourse by then s61H(1)(a)(i) includes sexual connection to any extent of the genitalia with any part of the body of another person which plainly enough would include lips or tongue. The offender’s position is that he denies at any time having had penile / vaginal intercourse with the victim and in respect of the relevant charges pleads guilty on the basis that the relevant act of sexual intercourse was cunnilingus. As noted above at [7] the offender’s position is that he had never asserted that his fingers or mouth did not penetrate “to any extent” the victim's genitalia.

Evidence of the offender

64. The offender gave evidence. It helps to understand this dispute to make reference to the offender’s evidence in the first place to try and ascertain just what is his position. In his evidence in chief and which was not challenged in cross-examination he stated that he and his older sister by two years, D would lick each other’s private parts. He said he would lick her vagina and she would suck his penis. This began when he was aged 5 so D would be about 7. It continued until he was about 8 and D was 10. He said it started because it felt good and when asked if anything was happening in his life at that time he stated that he grew up in an abusive household. He said he would get hit. He said he was hit a lot by his stepfather. The evidence shows this was B. He also said he was yelled at a lot, I infer by B. He did not consider it a happy childhood. He left that household then located at Z when he was 12 and continued to visit his mother’s household on school holidays and at times every second weekend. Significantly there was no challenge in cross examination to this sexual activity between the offender and D,nor was there any challenge to the evidence that the offender was physically and verbally abused by B.

65. In respect of his conduct with the victim he gave this evidence:

(a) It began in Z when he was 11 years old and she was 4. (b) The conduct was touching and licking each other’s private parts. (c) It continued when they moved to S. (d) On the Easter weekend of 2014 his mother and B had gone to Nimbin. D was looking after the children. In the garage at W he and the victim performed on each other cunnilingus and fellatio respectively. (e) Also on that same weekend there was an incident in the toilet of the house at W where again the offender and victim performed cunnilingus and fellatio upon each other. (f) [Note that it is the allegations concerning what occurred on the Easter weekend of 2014 at W that the Crown relies upon to make out counts 1, 2 and 3. The Crown allegation concerning count 2 is cunnilingus which is admitted. The Crown relies on alleged penile vaginal intercourse to make out counts 1 and 3 whereas the plea of guilty to count 1 is admitted to be on the basis of either cunnilingus or fellatio and the basis of the guilty plea to count 3 is fellatio]. (g) In respect of the incident before he was 14 in the bush area at W he said there was no penile vaginal intercourse involved in that. It is the Crown case that there was penile vaginal intercourse on that occasion and that in fact is the only occasion amongst the tendency evidence where it is alleged penile vaginal intercourse occurred. (h) In relation to counts 4, 5 and 6 these occurred on a trip he made to V between 22 May 2015 and 31 May 2015. The Crown case is that count 6 occurred in 2017 on a later trip. There were two incidents in May 2015. The first occurred in the bedroom of the victim at nighttime. The victim was upset due to lights being seen outside and her mother was comforting her. The mother left the room and the defendant remained with the victim. He then engaged with her in sexual activity of cunnilingus and fellatio. (i) Also on that visit he again went to her room and again cunnilingus and fellatio occurred. The Crown relies on these two occasions for counts 4 and 5 which on the Crown case are occasions of penile vaginal intercourse. The plea of guilty is on the basis of cunnilingus (count 4) and fellatio (count 5), being the conduct on the first night. An oddity in the case is that count 6 (like counts 4 and 5) is pleaded as having a date range from 2014 to 2017 (though the range for counts 4 and 5 ends at 31 January 2017, and for count 6, 7 October 2017), and the Crown relies on events of 2017 that it alleges occurred to make out count 6. The plea of guilty count 6 is based on an act of sexual intercourse that occurred on the second occasion of offending in the May 2015 visit which falls within the date range pleaded for count 6, and counts 4 and 5. The oddity being that the guilty plea to count 6 is to a different occasion altogether than the Crown argues is the case, but nevertheless within the date range pleaded on the indictment. (j) The accused in evidence in chief denied ever saying anything to the victim in the nature of “don’t tell anyone” or “it will get worse for you if you tell anyone”. He denied ever putting his hand over her mouth. He denied that anything happened after the 2015 trip to V (k) He gave evidence about the house visited on a holiday in 2017 which was not the residence of the victim. He said that house was lifted up on stilts which he described by his hands and words as being about a foot and ½ up on stilts. He said you cannot really see underneath the house because there were wooden slats which went all the way around the house. (l) He said the only sexual activity he engaged with “towards” the victim was licking her vagina and touching her with his hands; see T109.25. The touching with hands he said did not happen a lot. Given the earlier evidence as to fellatio, this evidence seems to be directed at acts performed on the victim by the offender, as opposed to the victim performing an act (fellatio) “towards” him; nothing was said of this in submissions, and I do not take it to be an inconsistency in the offender’s evidence. (m) He said the licking of her vagina occurred twice at the W address. This would seem to be a reference to the garage and the bathroom and leaves unexplained what occurred in the bush. (n) He was asked why he did not progress to penile vaginal intercourse. His answer was “I started seeing my friends get boyfriend and girlfriends and I knew it was wrong”; T109.50. When asked the same question but when he was younger when he didn’t see boyfriends and girlfriends he said “I don’t know”. (o) He said he ejaculated for the first time at 16, got pubic hair at 16 and that his voice dropped when he was probably 17 or 18. The victim was asked at the PREH in cross examination whether she noticed the offender had pubic hair at the time of any of the sexual assaults, and she said she did not remember; see at T21.05 of the PREH transcript.

66. From the evidence of the offender the only sexual acts that he says occurred between he and the victim were cunnilingus, fellatio and him touching her with his hands in a way that was not described in any detail and which he said did not occur very often. Further the admission to cunnilingus is an admission to licking the genital area of the victim without any penetration of her genitalia. I reached that conclusion by reason of the fact that his evidence begins by talking of licking and also because the questions he was asked use those terms interchangeably. For example in his evidence in chief at T109.41 when he was asked “in terms of the sexual-well you licking her vagina or performing cunnilingus how often did that occur when you say you were living at the [S] address at [W]". This question is also an example of the use of the word “vagina” in general terms rather than with anatomical accuracy. It occurred elsewhere in the evidence in chief e.g. T98.01 and T109.24.

Cross Examination

67. The following emerged from the cross-examination of the offender:

(a) Initially he was asked about events when he was 11 or 12. He said that he did not speak to the victim as the sexual activity occurred. He said her hands were on his penis for about five minutes and that in this time his hand was on her vagina. He agreed he got an erection but denied that he ejaculated. This was in the paint room at Z. He did not lock the door which he said was open. He denied digitally penetrating the victim's vagina. He said he felt the outside of the vagina and denied going into the crack of the vagina. There was some concern expressed by Ms Cusack who appeared for the offender, that the use of the term vagina was inappropriate and the Crown clarified that he was referring to the outer lips though that was not really taken further in the questioning. To the extent it needs resolution there was certainly no re-examination to seek to clarify this as what the offender thought he was answering to. It was clear from the evidence that the offender understood he was being asked about the outer lips of the vagina, or the outer genital area. It is the offender himself who is adopting the term “vagina” in the anatomically incorrect way in both his evidence in chief (see the examples just given), and also his cross examination, prior to various propositions adopting that word being put by the Crown. I find the effect of his evidence is to consistently deny that he penetrated the genitalia of the victim. (b) He was then asked about events at X again when he was younger than 14. He said cunnilingus and fellatio occurred on that occasion. He denied penetrating the victim with his fingers. (c) He admitted to an occasion occurring in a public toilet which the Crown case could not particularise in terms of time or location. He agreed that fellatio occurred at that time. This is another of the tendency matters sought to be relied upon. (d) He was then taken to the occasion in the bush behind W, again prior to age 14. He agreed that before the sexual acts his brother C was present but C left at some stage and that when he was alone with the victim the sexual acts occurred. He agreed he touched her vagina with his hands after taking off her pants. He denied digital penetration. He admitted to cunnilingus but denied penetration with his tongue. He agreed fellatio occurred and that he put his penis in her mouth and that he got an erection. He said his erect penis had been in her mouth between five and 10 minutes. It was put he then had sex with the victim and he said no which he understood was a reference to penile vaginal intercourse. (e) On this occasion he agreed that his body was being held up by one of his hands but did not agree that his body was over the top of her body. Instead he said his body was lying down near her vagina and he was using his mouth to lick it and he was not on top of her body. He denied any penile vaginal intercourse and denied it stopped only because C was coming. (f) He denied that he had told the victim not to tell anybody about what he had been doing. (g) Next the offender was asked about the Easter weekend of 2014 at W. His mother and B were at Nimbin which left D, the victim C and himself. He was 14 and the victim was 6. He denied penile vaginal intercourse. He denied that he told her not to tell anyone. At T122 he said there were 2 or 3 sexual acts with the victim that weekend, though later evidence makes it plain he is admitting to 2 occasions on which there was fellatio and cunnilingus; see T124 and T127. He says he took off his pants and the victim’s pants. He said they had been on an Easter egg hunt before going into the garage. He said he thought they were playing in the garage and he made reference to ping-pong and that he thought the Easter egg hunt had finished. He said that he had shut the door and he could not recall why. He said cunnilingus and fellatio took place which he referred to as one sexual act which I interpret to mean one occasion which was made clear when he was asked what was the sexual act and he said cunnilingus and fellatio. (h) He was then asked about the bathroom incident and said he did not lock the door. He agreed there was cunnilingus. The victim had gone to the bathroom first. He said he took her underwear off and then performed cunnilingus and there was fellatio. He says they were lying on the ground and that she got on the ground herself without him telling her. He denied penile vaginal intercourse and he denied saying “just don’t tell anyone”. It was put to him that the first act was cunnilingus and the second was penile vaginal intercourse and he said that did not happen, it was cunnilingus and fellatio. (i) He then agreed there was sexual acts when he traveled to V in May 2015 when he was 15. B, his mother, his brother and the victim were present. He did not agree that there had been discussion about a UFO. He agreed the victim had been calling out from her room, as he had said in chief. He said the sexual act occurred about five minutes after the mother left the room. He had got on the bed and the victim was not covered with a blanket. He denied penile vaginal intercourse. He agreed he took off her pants. He denied covering her mouth. He agreed he performed cunnilingus. It did not come out in this cross-examination that there was fellatio on this occasion as he had said in chief but that was not due to the offender but rather the questions that had been asked. (j) He said following that night fellatio and cunnilingus again occurred in her room. He believed it was daylight. It was put to him this occurred at night and he said he didn’t remember. (k) In relation to the first occasion in V when the mother had been in the room he said he did not lock the door and that the mother had closed the door. (l) On the second occasion of the 2015 visit he was asked if he shut the door and he said he did not recall shutting the door. He did not recall the victim waking up because he shut the door nor did he recall her rolling over trying to get back to sleep. He denied putting his hand over her mouth. He accepts that he took her pants off. He denied penile vaginal intercourse. He denied that he did this in the same way as had been put to him regarding W. (m) He then agreed that he was saying that fellatio and cunnilingus occurred on this occasion again for between 5 and 10 minutes. (n) Next he was asked about the alleged 2017 incident also referred to as T. At this time the offender was aged 17 and the victim 10. He agreed the house was on stilts and said he could not get underneath the house. It was put to him that was a lie and he said I did not go underneath the house. He denied committing any sex act when he was 17. I note his earlier evidence that the May 2015 occasion event was the last time he committed a sexual act with the victim. (o) He admitted that at T he, D and C had been playing hide and seek with the victim. He disagreed that he and the victim went under the house when playing hide and seek. He denied anything happened under the house as he was not there. He denied telling her not to tell anyone.

68. In summary the offender’s position as to the occasions when counts 1 to 6 inclusive occurred can be stated as follows and noting the Crown case for each count is penile vaginal intercourse, save for count 2 when it is agreed to be cunnilingus:

| Location | Date | Offender | | Sandstone in garage; count 1 | April 2014 | Cunnilingus and fellatio (so offence made out by one or the other) | | Sandstone in bathroom; count 2 & 3 | April 2014 | Cunnilingus (count 2) and fellatio (count 3) | | Farmhouse first occasion; count 4 & 5 | May 2015 | Cunnilingus (count 4) and fellatio (count 5) | | Farmhouse second occasion; count 6 | May 2015 | Cunnilingus and fellatio (so offence made out by one or the other). Crown case is it occurred at T in 2017 |

Evidence of the victim

69. The victim had two child interviews with police, the first on 20 September 2022 and the second on 20 June 2023. There was then the CSOEP pre-record evidence hearing (PREH) on 23 May 2025.

70. In the first child interview the victim gave evidence of the incidents that occurred when the offender was less than 14 at Z, X, the toilet block and in the bush at W. The only occasion in which she alleges penile vaginal intercourse occurred out of those incidents was in the bush at W.

71. In respect of events at Z she said that it was in the back paint room and “it was just like touching me and making me touch him”. When asked what part of his body touched hers she said “hands and like vagina”. She was asked how he touched her vagina and responded “what do you mean” and there then follows a very leading question at Q 70 “was it on the inside or the outside or something else” to which she answered simply “both”. She said that he took off her pants and as to his clothes “took them off when I touched him” so it isn’t clear who took the offender’s pants off but I would infer, consistent with the offender’s version, that he took his own pants off. She said her hands touched his penis. When she was asked what her hands were doing to his penis she said “just touching it”. She does not remember him saying anything to her on that occasion. This is the only evidence given of an occasion at Z in this interview.

72. As to what happened at X she said she was watching TV and he took her pants off and touched her and she did not touch him. At Q107 the same leading question is asked of “and was it on the outside, the inside or something else?” and the answer given was “inside like fingers like penetration with fingers”. His clothes were on.

73. She was asked what happened at W and said at first it was just touching and then it was “like sex or rape or”. When asked what happened when she says “like sex or rape” she said “like dick to vagina and penetration”; A121. At Q129 she was asked how many times she had sex (which in the context of the earlier answers I accept is a reference to penile vaginal intercourse, and further I interpret as referring to occasions at W) with the offender and she said she remembered three specifically. She went on to describe the bush incident, which is not a count on the indictment. She described the area. She said that C had come and then left and then the offender started with touching her with his fingers and took his pants off “and like sex happened”. The touching with his fingers was of her vagina. She said he took her clothes off and clarified that it was her pants, and her shirt stayed on. She was asked how the sex started and was asked if he said anything and she said no. When asked what made it stop she said she said “I think C is coming up here”. She said the offender had said not to tell anyone.

74. The next incident described is what founds count 1. The victim said (A155 and A156) the offender took her into the garage from the house and “it” happened on the floor meaning “sex” (A157, and based on A121, penile vaginal intercourse, which she confirmed at A162, saying it was “penis to vagina”). The victim said the offender took off her clothes and then took his clothes off. When asked what she meant by sex she said “like what I said before” and “penis to vagina”. The victim says he told her not to tell anyone and if she did he will do something or just keep doing it and that they wouldn’t believe her anyway. There is no evidence of the victim of any other sexual act occurring on this occasion.

75. The next incident was also on the Easter weekend, this time in the bathroom at W and when asked what happened she simply said “penis to vagina”. At Q171 the question was “but where were you, how was your body?” A “what do you mean” Q “like were you laying down… And the answer is “yeah on the… bathroom floor”. This is another example of a leading question. Instead of asking the complainant to describe what happened suggestions are made to her when it would seem she is unable to describe what happened and, as with the earlier questions she adopts the suggestion. There is no evidence of the victim of any other sexual act occurring on this occasion.

76. At Q179 she talks of other occasions where he made her do things to him in the garage, in her bedroom and on the grass Hill. This included fellatio or her hand on his penis or him touching her. Having said in her words what occurred the questioner then seeks to elicit information about his penis for example “what did his penis do?” And the answer is “what do you mean” though there was no further answer of the type apparently being sought relating to an occasion of penile vaginal intercourse. The point to note here is this evidence of other acts occurring is not given in respect of counts 1, 2 or 3.

77. She was asked how she felt when it was happening, which is a very broad question but seems to be a reference to the sexual acts generally. Significantly the victim did not say that it hurt; A194, though in later evidence in relation to the bush incident at W, she did say that it hurt.

78. In respect of charges 4, 5 and 6 which occur in V she refers to what was referred to as the farmhouse when she was 7, so between August 2014 through to August 2015 which is of course the period in which there was the visit in May 2015. The victim describes freaking out because of seeing something in the sky that was thought to be a UFO. She says she was calling out and the offender came in to help and “then it was like penis to vagina like sex” in her room. This is count 4.

79. At Q223 she was asked “when you say sex happened like what did he do”. She says she took her pants off but not her top and that she was in her room. She said she was laying down when it happened. She does not remember him saying anything. She said she was crying and he covered her mouth when it was happening. At A 227 she says that she was crying firstly because of the glowing light but also “then he came in and I knew what was going to happen” and “it hadn’t happened in ages” due to the move to V. She says he shut the door when he came in but the mother’s evidence is that she’d left after the offender came in though I do not think anything really turns on that. When asked what he was doing when he was covering her mouth she said “having sex” by which she meant “his penis in my vagina”. She said his body was above hers.

80. Then she said the night after “he just came in and it was basically the same thing” which is the evidence of count 5. She said she was asleep before he came in and that he came in and shut the door which startled her. She rolled over and felt him on the bed. When she woke his hand was over her mouth and she couldn’t really do anything. When asked what he did the answer was simply to say “the same as the night before”. He took her pants off. She gives a good description of his hand being over her mouth. Beginning at Q256 she says she rolled back over when he shut the door not realising he was in the room and then felt him on her bed turned her head and that is when he put his hand over her mouth. When asked what he did the answer was simply “penis in vagina the same thing as the night before” which is count five. She said she was crying.

81. She was asked about other occasions of incidents in V and spoke in very general terms and in the space of a few questions there is conflicting information as follows:

(a) At Q268 when asked if anything happened after the second night she said she wasn’t sure if it was before or after but there was like touching and like oral like before. (b) At A269 she said she remembered it happening like separate to the nights where it was like sex, which I interpret to mean not “sex” as in penile vaginal intercourse, something confirmed by her reference then to mouth to penis. (c) At A271 having been asked “okay any other time you said there was touching as well” and she answered “yeah nothing like not penetration like touching me on my vagina he was”; in other words she is saying this occasion (which I find was the May 2015 occasion) is the only occasion of penile vaginal intercourse in V. At Q276 she was asked if anything else happened while he was in V and the answer was no. This is made even more clear by Q294 when she was asked if anything had happened with the offender since then, being the reference to the two nights in May 2015 and the answer eventually at A 295 was “no not in V”. She said she had seen him once but nothing happened.

82. There is no evidence concerning count 6 in this interview.

83. At A393 in answering questions as to the layout of the Z house she stated that “we know the people that live there and we went there and looked at it”. There was no attempt by the Crown at any stage to clarify what this was about and the mother of the victim had no idea about it. One of them is very mistaken, and in my view it is the victim who is mistaken.

84. As to disclosure she said the first person she told was her friend F, (A431) though in the next question she said the first person she told was her mother. I do not consider this difference of any significance. F did not give evidence having declined to give the police an interview and no subpoena I infer having been issued. She said she did not tell her in detail. Next she told her boyfriend G whom she said she had told the whole thing. G did not give evidence. He too declined to give an interview and there was nothing to suggest a subpoena had been issued.

85. She then said that she told her mum about “like sexual like the touching and stuff”, (A432) in other words she did not disclose to her mother any penile vaginal intercourse. The position is of the first three people she made disclosure to the evidence does not disclose any actual words referring to penile vaginal intercourse.

86. She then says that she told her father (A436) what had happened when he was in V in a telephone call and that he then called her mother. The mother hung up because the father was angry. The father then told C; the evidence has leaped forward here to June 2022.

87. The evidence shows that she told her mum about just touching which she said was about a 1 ½ years to maybe 2 years ago. Given the interview was in September 2022 that would mean some time in the period September 2020 to March 2021.

88. There is a reference to an incident at a toilet which the offender agrees with where there was an event of fellatio but this was in Australia and the time is not discernible.

89. The circumstances of the disclosure to her mother was of her mother mentioning something regarding a sexual assault and the victim asked a question and the mother asked if something had happened to the victim who said (A456) “[the offender] used to like do stuff or make me do stuff when I was younger. Like touching and I didn’t really like like I didn’t tell her about the actual like not the actual but the full story”.

90. She confirms at A468 that she told her mother about the touching, that is, not about any penile vaginal intercourse. She says in general terms that she told her boyfriend G and F by text that she had been raped though her evidence of telling F was that the sexual assault and rape she was from ages 4 to 9 but even her own version of events there was no “rape”, ie penile vaginal intercourse, until age 6. In any event the only complaint evidence from the three people to whom initial disclosures were made is from the mother. There were messages with the offender where he says sorry for everything which does not really assist resolving the current issue.

91. Sometime after the offender attended at Newcastle and came to stay with the family and the victim went to her boyfriend’s place and that is the night she told her father; this is a reference to the earlier mentioned phone call and she says she told him everything. That is when he then calls the mother and C.

92. At the conclusion of the interview she was asked if she would like to say anything else with a number of suggestions being made as to whether it happened when showering or getting dressed or anything like that which is another suggestive question. To the victim’s credit she answered no. There were a number of instances in the interview where she had the opportunity to embroider or add to her evidence but did not.

93. In the second interview there is the disclosure as to count 6. There was some further evidence touching on matters already covered but the relevance is really as to count 6. I would note however that at Q29 she again did not take the opportunity to expand on her evidence in a way I consider favourable to assessing her evidence, that is she simply said that was all she could recall. She also gave some further detail about the bush incident at W. As recognised by Q41 it was an expanded version in that she is now saying he used his mouth to touch her vagina as well as the penile vaginal intercourse. She said he put his tongue inside her vagina; see A41 and A43.

94. It is commencing at Q81 that there is the evidence concerning T which on the Crown case is count 6. She said they were staying in a holiday house. She, D, the offender and C were playing hide and seek. She said they (she and the offender) both ended up under the house “and he had sex with me but it wasn’t for a like really long amount of time because we were playing hide and seek with the others as well”. When asked how old she was when they had the holiday she said she thought 9 but that mum would have dates or photos or something. When asked how she got under the house she said she thought there was an opening. She said “I’m pretty sure there was an opening of some sort”.

95. When asked to describe the situation the question was asked whether “was it covered in or was it the house up on stilts do you mean” again a very suggestive question. She then described the house as being on small stilts. When asked if you could see underneath the house or whether it was all covered up she said “I think it was all covered”. The description of what happened was simply “he put his penis inside of me”. She said he took off her pants and undies. When asked what part of his body touched her body the answer “penis to vagina” was given. She said he told her not to tell anyone.

96. Lastly in this interview at Q109 there is reference to count 2 which is cunnilingus which was said to be the same occasion as count 3. The victim stated on that occasion “he touched my vagina with his mouth”. Also on that occasion she confirmed what she said in the first interview, that there had been penile vaginal intercourse. This is the occasion of the bathroom at W in Easter 2014.

97. She agreed the last time the offender had sex with her was at T. At Q118 is another leading question when it was asked whether up to that age (17) “was he still saying to you not to tell anyone about this” and she said “yeah”.

Cross examination

98. On 23 May 2025 there was the pre-recorded evidence hearing and there was cross-examination on the interviews just referred to. The order of disclosure was confirmed to be to her mother 18 months to 2 years before going to police, which would date it as being between September of 2020 and March 2021, to her friend F by text / snapchat in 2021 and then her boyfriend G a bit later in 2021, also by text / snapchat, then in about June 2022 to her father by text.

99. In respect of the disclosure to her mother she said she did not tell her the whole story. She told her mother the offender did “sexual things”. When her mother asked what those sexual things were the victim had answered “touching my private parts and making me touch him”. The victim remembered telling her mother of an incident in a public toilet where the offender made her suck his penis but said she was not sure it was that same conversation. That was before she went to the police. She agreed there was more than one conversation with her mother.

100. She said that when everything came out, which was the night she told her father (26 June 2022), that people spoke about reporting it. She said she spoke to her father by phone.

101. One point made was that the toilet incident had been discussed by the victim with her mother before she went and made her first interview; see T14 and Q.449 of the first interview.

102. She said she did not tell her mother the full story because she did not feel comfortable telling her the extent of what happened but wanted her to know she was not comfortable around the offender without having to tell the entire extent of it; T16.32-.39

103. She denied that all that happened at the bush area was fellatio and him licking her vagina.

104. In terms of the Easter weekend in 2014 it was put to her that there was licking her vagina on both occasions. The exchange at T17 has the ring of truth to it. The initial answer is “No” and the victim then asks which occasion is being referred to, and when it is clarified that it is at W and in the bathroom and the garage she says the offender licked her vagina on only one of those occasions, namely in the bathroom. She denied that on the first occasion there was fellatio and she denied that there had been no penile vaginal intercourse.

105. When asked if her mother asked if any sexual assault happened in V she answered she did not remember what she asked and gave the same answer in relation to her father.

106. She agreed she had said in the first interview she could not remember any other incidents after what was referred to as the UFO incident which was May 2015.

107. When asked about the house visit to Z she was asked if that was between speaking to her mother for the first time and going to the police and said she was not sure.

108. The victim was asked about the bush incident and how the penile vaginal intercourse actually happened. She said she was sitting down and that he was like kneeling, kind of sitting down. Her top remained on and her pants came off. She was not sure about his pants. When asked how was it that he had sex with her, she was again asked if she was sitting up or going down and said laying down. The offender’s body was above hers. She denied he was lying fully on top of her but was holding himself above her with his hands. When asked how she knew his penis was in her vagina she said it hurt.

109. In relation to the fellatio incident behind the bush she does not remember if he had pubic hair.

110. The victim was asked about the UFO night (count 4) and denied her mother had been in the bedroom before the offender had been and denied there was cunnilingus and fellatio on that occasion (leaving simply her allegation that it was an occasion of penile vaginal intercourse).

111. She was asked how sure she was the next occasion was the next night and she said she was almost certain. When asked if she said anything on this occasion she said she had told the offender “don’t” and that she was crying and saying “no”. She again denied that there was fellatio and cunnilingus and said “he did put it inside of me”.

112. She described his position over her as the same as at W with one hand supporting his body and the other over her mouth. Whilst it might sound like doing a difficult one handed push-up it also strikes me as entirely feasible particularly given that he must also be getting support from his legs.

113. She could not say how long the penile vaginal intercourse went on for on any occasion.

114. She said she didn’t mention T in the first interview because she did not remember it at that point. In the second interview she mentioned the offender licking her vagina, something she did not mention in the first interview, which she said was because she felt too gross about it.

115. The cross examination concluded with some global propositions. She disagreed the offender did not tell her to not tell anyone; she said he did say that people wouldn’t believe her if she told; she agreed the offender left Z after a big fight with her father; when asked that she knew her dad would believe her she answered no. She agreed she was upset in the (first) interview when talking about the penis in her mouth and then said she did not want to mention the licking of the vagina at all in the first interview. She agreed with that which also assists her case in that like the incident at T there are things that she did not mention on the first occasion yet some of them such as the licking of the vagina is admitted. She denied that all that ever happened was that he licked her vagina and she sucked his penis.

116. The various assertions and concessions made by both the offender and the victim as to what sex act occurred on what occasion is confusing. It may assist to try and summarise it in a table. Below is a table limited to the date and location and competing versions of what sexual act occurred:

| Incident | Date | Victim | Offender | | Paint room | 2011/12 | Touching, including inside her vagina | Licking and touching | | X | 2013 | Digital penetration | Licking and touching | | Sandstone / bush | 2013/14 | Penile | Unclear, but the inference must be cunnilingus | | Toilet | | Fellatio | Fellatio | | Sandstone count 1; in garage | April 14 | Penile; no cunnilingus, no fellatio | PG on basis of cunnilingus or fellatio | | Sandstone count 2; in bathroom | April 14 | Cunnilingus | PG on basis of cunnilingus | | Sandstone count 3; in bathroom | April 14 | Penile | PG on basis of fellatio | | Farmhouse count 4 | May 15 | Penile only | PG on basis of cunnilingus | | Farmhouse count 5 | May15 | Penile only | PG on basis of fellatio | | Count 6 | | Penile | PG on basis of an act of either cunnilingus or fellatio which the offender asserts occurred on the second night in May 2015. Crown case is it was penile vaginal intercourse at T in 2017 |

Complaint evidence

117. In addition to the evidence of the offender and victim there was called in the Crown case the offenders half-brother C, born on 28 April 2005, the mother of both the offender and the victim A and the father of the victim B. The offender lived with those people up until the age of 12 so until sometime between January 2012 and January 2013. The evidence was largely albeit not entirely complaint evidence. The following paragraphs indicate the relevant passages.

C

118. He gives evidence of a conversation with the victim when he was holidaying in V. They were at his uncle's uncle's house and it was only he and the victim in the room. At T7 he said that the victim told him that the offender would make her suck his penis and that he’d put his penis inside of her vagina and he would rape her and tell her to keep her mouth shut and held his hand over her mouth.

119. In terms of how often this occurred he said the analogy she gave him was “you go to school so often you don’t remember every single day at school”.

120. He said she said it happened in a number of different places and he gave an example of W where they played in the big paddock just behind the houses. The time being referred to was when he had been with them for a little bit and when he had gone back to the house the offender had raped the victim. When asked he confirmed that it was the victim that used the word rape.

121. He said that she said it used to happen in the farmhouse in V too. He said that the time these things were happening the offender would tell her not to tell anyone.

122. In cross-examination he was asked if the victim had used the words to him that the offender had told her not to tell anyone and he said yes. He then said that she also said that he would tell her to keep her mouth shut.

123. He agreed with the suggestion that the conversation occurred in June/July school holidays. He agreed he knew the allegations had already been raised by that time. The questions then were asked in reference to the telephone call between the victim and her father. The evidence shows that his father (the father of both Cand the victim, B) had sent a text saying that if he felt uncomfortable with the offender being at their house he would pay for an Uber. He agreed that at that earlier time his father told him that the offender had been raping the victim. He also agreed that he then confronted the offender who said “I know I’m sorry”. He later again confronted the offender saying why did you do it and the offender said “I regretted it ever since I was a little boy”.

124. There was then cross examination on his statement. In the statement he had mentioned that he had told her not to tell anyone as something the victim had said to him but did not use the words that he had said “keep her mouth shut”. He accepted that those words were not in the statement that the victim had told him that he put his hand over her mouth; T12.25.

125. He denied having conversations with his parents about their statements.

B

126. He gave evidence of an occasion when the victim did not want to go to her mother’s house and he had told her to go. There were a number of calls. The victim texted B saying “he used to rape me and do other things” and there was then a second text which on first said between the ages of 4 and 9. A copy of that text was tendered and it showed a date of 26 June 2022 and with these words on it; ex L.

127. There was no real challenge to this in cross examination. Rather the cross-examination included questions concerning how the offender came to leave the house at Z in about 2012. He agreed he physically disciplined the offender when he was very young. He said it would’ve been with a hand only once. He disagreed it was more than once or a regular occurrence.

128. When asked the circumstances in which the offender left the house he said it was because he had wanted to live with his father for the previous couple of years. He said he did not recall A saying that she thought he, B was going to kill him, being the offender.

129. Later evidence showed B to be less than frank. The evidence of the mother referred to below was consistent with the evidence of the offender as to the abuse the offender suffered. B however did not agree that he was abusive in his physical treatment of the offender, allowing only that he had once hit him with his hand. Additionally, and moreso than C, it was plain that he had a real, if understandable, “axe to grind” with the offender for having sexually abused his daughter. In my view that is likely to have coloured his evidence.

A

130. A, the mother of both the offender and victim, is plainly in a terribly distressing position. She gave evidence that in July 2013 she moved to W where she lived with B, D, C and the victim and the offender would stay sometimes on the weekends. The offender would come every second or third weekend and then in school holidays sometimes.

131. Her evidence confirms that on the Easter weekend of 2014 she went to Nimbin on the weekend and D looked after the children at W.

132. She gave evidence of the bush area near the house about which there is really no dispute given that the offender gave evidence to that effect also.

133. She confirmed that she relocated to V in 2014 with Cand the victim and that the offender was with his father, I infer in Australia. The defendant visited V on school holidays.

134. She gave evidence concerning the May 2015 incident at the farmhouse in V. She confirmed that the victim was upset and crying because she’d seen weird lights in the night and thought they were UFOs. She went into the victim’s room and then the offender came in. She left wanting to get to bed and the offender said he would stay and comfort the victim. She said the “UFO” incident was on the first or second visit which are agreed to have occured in May 2015 and March 2016.

135. So far as complaint evidence is concerned she said that the first conversation with the victim about something happening with the offender was 4 or 5 years ago when the victim was 13 or 14, which is consistent with about 18 months to 2 years before the complaint was made to the police. The disclosure occurred when she’d returned from work as a court officer and she mentioned she had a hard day because she had been with young girls giving evidence about sexual assault. The victim then said “that happened to me that’s happened to me”. She asked who did that to you and she said the offender.

136. Asked what further conversation occurred she said at T37.40:

A. I was completely in shock and I was very, like, just flabbergasted. Completely, yeah, and I said, "What - what - what happened? What - what happened?" And she said, "He did sexual things to me." And I said, "What - what do you mean, like, with hands or" and she said, "Yeah, with hands." And I said, "With mouths?" And she said, "Yeah, with mouths." And by that point I was crying, she was crying. I don't think she even had the language at that point to explain to me what had happened.

137. The mother asked when and where it happened and the victim said at the house at W and told her of the little bushy area. She mentioned other places such as a restaurant and the public toilet. She said she did not ask for great details but that she asked was it with hands and the victim said with hands and with mouths and that he made her do things.

138. When asked if the victim indicated any other locations it was said that it had happened at that house (which I take to mean W) and in the garage and in the bushy area and V which was mentioned on a later occasion.

139. As to V she said it happened in her bedroom at the first house she lived in which is the farmhouse after she had left her in the bedroom with the offender.

140. The next time she spoke to the victim about it was after she had spoken to child services who told her to report it to the police when the victim was ready and at that point the victim did not want to do that. The effect of T39.23-40 is that the next conversation about it was after it had been reported to police and at a time she was trying to do the timeline which became exhibit N. The effect of that conversation is that the mother was going through photographs and the victim asked to look at them and the victim asked where they were and the mother said it T and the victim said that he did stuff to me there, he raped me under the house.

141. In cross-examination the evidence in chief was confirmed as to the first complaint being one where the complaint was of touching with hands and mouth, that is the point being there was no mention at that time of penile vaginal intercourse.

142. The mother said that the victim told her words to the effect that he had said he would hurt her more if she told anybody.

143. Questions were asked about the evening of 26 June 2022 and the offender was staying in Newcastle with his mother. Cwas there. She says that was the night C found out. The point here is that it was put that it was B being angry and saying down the phone that the victim had been raped by the offender.

144. Sometime after this evening of 26 June 2022 the victim decided to go to police and they attended at Waratah station on 4 September 2022. She said it was on 4 September that the victim said she wanted to go to the police. The mother was with the victim at the time she had a conversation with police and she said the conversation was brief. The mother said that in that conversation not a lot of details were given.

145. She said she did not recall having conversations with the victim between 4 September 2022 and when the victim gave her statement on 20 September 2022

146. When asked if she had taken the victim to the Z house just before she went to make her statement she said no. She did not agree that her friends had moved into that house. Not only did she not agree that she had taken the victim to the house at that time but she said she had never been back to that property since she sold it which she said was when they were in V. She said she had driven past it but had never been back to the actual house.

147. She agreed that some questions had been asked by her of the victim before she was making the timeline, which became exhibit N. She also said there was conversation while she was doing the timeline which took a few days. This was on 5 October 2022.

148. The mother showed the victim 4 photos which became exhibits 2, 3, 4 and 5. Only one shows a house which is Exhibit 3. That is an interior shot of the stairwell of that house. The mother identified that photograph as being of the house that they had moved to live in town in V at the time. It was not the holiday house at T. The other three photos were external shots of the holiday at T

149. It is clear however from T55.47 through to T56.02 that the photograph that triggered the interest of the victim was the photograph which became MFI 5 and was later Exhibit 2, which was a picture of the children on the beach together. The date of that photograph is 3 October 2017. The other photos are dated 2 October, 3 October and 5 October of the same year. I note exhibit N shows the holiday or the last visit to V as being from 24 September 2017 to 7 October 2017.

150. She was asked why the offender had left the Z house in 2012 and said it was because he did not want to live with us anymore. She agreed it had been a fight between the offender and B. She agreed that B smashed the offender’s phone. She said she had asked the offender’s father to come and collect him and that she had said something like she was concerned for the offender's safety. I infer the risk to be B

151. She said she witnessed B being physically violent towards the offender on occasions which she described as physical altercations.

152. The point was made that the location of T was first mentioned by the mother to the victim.

153. The mother described the T house as like a little cottage. She said the house was on piers and agreed it was not very high. It was put to her that it was about 20 cm and she said she had no idea and then indicated with her hands saying at least a foot or two. She said there were probably 5 or 6 steps up to it which I take to mean from the ground level to the floor level of the house and said it would’ve been a couple of feet like 80 cm to a meter. She had held her hands up indicating quite a small distance but said that was her attempt to picture 20 cm which I note was the proposition put by the questioner. It was put to her that she couldn’t get underneath the house and she said you could. She could not recall if it was covered by some sort of latticework. She did not know if there was an entry to get underneath the house.

154. She said when the victim said this (that is in 2022) she thought that’s why she was so dirty. She said that at the time she had asked her where she had been and she said she was under the house playing hide and seek. At T64 to 66 there was an attempt to have the “trigger” photo to be accepted to be the internal house photo but that was not accepted.

155. The final witness was the officer in charge. Of note was that she became aware that the victim had made disclosures to her friend F and her then boyfriend G. Both of those people declined to make a statement. So too did D and also E the offender’s father. That was evidence given on Friday, 21 November 2025. It transpired that over the weekend of 22 and 23 November, mid hearing, a statement was taken from D.

156. The cross-examination focused on the creation of the timeline and led to the tender of some emails by which it was forwarded by A. The timeline was forwarded on 5 October.

Determination

Assessment of offender’s version of events

157. It is necessary to consider the evidence aware of the various directions given above. Given that it may be determinative of the matter, immediate consideration should be given to the Liberato direction, that is whether I accept the offender’s version or consider it might be true. Yet to give effect to that direction requires consideration of all the evidence, not just the evidence of the offender. In taking into account all of the evidence, all of the directions have application.

158. On the offender’s account, in each of the 4 occasions which on his case gives rise to the 6 counts on the indictment, he placed his tongue and or mouth on the victim’s genitalia. On my interpretation of the evidence, the offender does not admit anything beyond this, that is that he conducted himself in such a fashion that he did not at any time pass the lips of the outer labia. The offender’s stated position in submissions however is that he does not maintain that at no time was there any penetration. On the 4 occasions where he was “doli incapax”, again on his account, there was licking and touching on 2 occasions, by inference seemingly cunnilingus on one occasion, and fellatio on the fourth occasion. His evidence is that he at no time had penile vaginal intercourse. When asked why he did not progress to penile vaginal intercourse he said it was because he saw his friends with boyfriends and girlfriends and knew it was wrong. When asked that same question but when he was younger, he answered he did not know.

159. The offender puts forward a history of sexual activity of his older sister, and argues that for him the offending behaviour had become normalised. Accepting that, it would seem more likely than otherwise that the offender would be less restrained in engaging in penetrative sex, at least orally. Further, as a matter of simple common sense, to be engaged in applying his mouth or tongue to the victim’s genitalia for 5-10 minutes in the way the offender described makes restraint from going further, that is, to penile vaginal intercourse, seem even less credible. That said, the evidence does not go so far as to say there was penetrative sex with his older sister, so what was “normalised” was the type of conduct that he asserts was the extent of what he engaged in with the victim.

160. My impression of the demeanour of the offender in giving his evidence was that he was extremely nervous, to the point of bordering on terrified. He spoke very softly. I did not form the impression that he was trying to deceive, though he did have something of an appearance of sticking to a script. Yet, it should be recognised the nature of the fact in issue is that he was being asked in effect the same question over and again, namely that he had penile vaginal intercourse, and he was consistently giving the same response. That said, there is merit in the Crown’s emphasis on the aspect of the offender’s description of what happened, being the fellatio, and cunnilingus, and of it lasting for 5 to 10 minutes, on at least one of each of the times it occurred at W and in V. This sameness of description does create an impression of it being unlikely to be accurate.

161. The offender’s version is that on each of the occasions in question, so on his case the two occasions on the Easter weekend of 2014, and the two occasions in V in May 2015, he performed cunnilingus, and the victim performed fellatio. There was on his account no other sexual conduct, so no other sexual touching. The impression created is of a very regulated almost mechanical, repeated event. In isolation this seems unlikely. At first blush this unlikelihood is added to by his evidence that in the initial occasions of the sexual touching that nothing was said; though the victim said she does not remember him saying anything on the first occasion in the paint room at Z. The victim also said that he said nothing on the bush occasion at W in terms of how it started; A147. There was then confusing evidence at A149 where she says, upon seeing C coming, that the offender had told her not to tell anyone so she just said “I think C’s coming”. In other words, the victim's account is of very little being said on at least 2 occasions, albeit not charged occasions, and to the extent on these occasions something was said, it was by her and with C approaching. In respect of count 4, the victim gave evidence of not remembering the offender saying anything. Thus what seems to add to the unlikeliness of the offender’s version, on consideration is actually in line with the victim’s evidence.

162. In terms of what may have been said, adverse to the offender, that the victim warns him that C is approaching is consistent with her believing no one should know what is happening because of what the offender had told her, that is, to not tell anyone.

163. The offender denies telling the victim anything along the lines of “don’t tell anybody”. Yet in respect of the bush incident, he acted in a way so that C would not see what he was doing. In the garage at W, he acted in a way that minimised the prospect of being seen engaging sexually with the victim. I note the door of the paintroom at Z was left open, yet this conduct of the offender suggests that he did not want others to know about the conduct in question. The victim says such words were spoken, which would be consistent with this conduct of the offender.

164. On the occasion at W at the bush location, it was put to the offender that the penile vaginal intercourse stopped because C was coming back. The offender denied that, but due to the question being premised on penile vaginal intercourse occurring. It is plain that they stopped doing whatever they were doing because C was returning; the victim says as much, and the evidence overall supports that view. This really only goes to the issue of whether he would say “don’t tell anyone”; it is clear that he knows that the conduct he admits to doing is wrong, and he does not wish anyone to know about it.

165. There was evidence of the offender that should be accepted. The way the offender described his body position when performing cunnilingus does not strike me as unlikely, contrary to the Crown’s submission. The way I interpret his description is that he was lying at something of an angle across the victim, and used his hands to hold himself up. That of course does not rule out that he may have been positioned otherwise when having penile vaginal intercourse.

166. The Crown called B as a witness. He was not a very satisfactory witness as discussed above. The Crown also had a statement from D. The lack of any challenge to the offender’s evidence concerning B, nor to the evidence of the sexual activity with D carries the clear inference that there was no basis to do so, that is, in regards to these matters there is no dispute, and significantly shows that in this regard the offender was telling the truth in respect of these matters.

167. His evidence in chief was simply that the conduct started in Z when he was 11 and was touching and licking of each other’s private parts. It continued at S and V, where it extended to fellatio, if that was not included as part of the licking and touching that first occurred.

168. The offender’s recollection of the first occasion in the bedroom at the farmhouse in V is more accurate than the victim’s insofar as it accords with the mother’s recollection of the mother being in the room when the offender comes in, and the mother then leaving the room with the offender remaining there.

169. The account of the offender differs to that of the victim as to whether he inserted his penis into her vagina, and as to whether he ever told her not to tell anyone, and putting his hand over her mouth.

170. The evidence supports a conclusion that the offender was pre-pubescent at the time of all the sexual conduct, if it is found that conduct ended in May 2015, when he was 15 years and 4 months old. The victim could not say whether the offender had pubic hair, and his unchallenged evidence was that he went through puberty at age 16. Yet he also admitted to gaining an erection from the earliest time of the offending when he was undoubtedly pre pubescent. Further there has been no case or argument put for the offender that due to his stage of development the alleged act of penile vaginal intercourse could not occur.

171. The offender made concessions, for example, although the Crown cannot date or place the event at the public toilet, he admits to such an occasion. Both he and the victim say that only an act of fellatio occurred on that occasion.

172. Yet, despite these favourable matters of evidence, in all the circumstances, I find it difficult to accept that there was never an occasion of penile vaginal intercourse, nor that the prospect of any kind of penetrative sex occurring was as constrained as the evidence of the offender would have it. The victim asserts at least one occasion of digital penetration, and also that he touched her vagina with his mouth “inside and out”; A39 of the second child interview.

173. The above considerations show that there are aspects supportive of the offender’s account, and aspects which are not. I come to the conclusion that it is implausible that there was never an occasion of penile vaginal intercourse. The basis of that conclusion is as follows:

(a) I do not accept that the offender never told the victim not to tell anyone, for the reasons given above. (b) In all the circumstances, where the offender has been engaging in sexual conduct first with his older sister and then with the victim, I consider it implausible that there was not a progression to other sexual conduct, namely, penile vaginal intercourse. (c) This implausibility is supported by what I find to be the less than frank evidence and position of the offender as to the extent of any penetrative sex other than penile vaginal intercourse. (d) It is detrimental to the position of the offender that he, in my view, seeks to convey an impression of almost being unconcerned about detection, when so obviously the conduct he was engaged in was carried out discreetly. (e) The offender’s evidence at T109.50. He had an explanation for not progressing to penile vaginal intercourse when his friends had girlfriends and boyfriends. He could give no explanation for not doing so when he was younger.

174. The offender’s version of events, that there was never an occasion of penile vaginal intercourse, is rejected.

Does the evidence relied upon by the Crown make out, beyond reasonable doubt, penile vaginal intercourse in respect of any one or more of counts 1, 3, 4, 5 and 6?

175. The victim had just turned 15 at the time of the first child interview on 20 September 2022, and was still 15 at the time of the second interview in June 2023, and 17 at the time of the PREH. The victim was either 13 or 14 at the time she made a disclosure to her mother, and 14 at the time she made disclosure to her father and brother. In May 2015, the last date on which the offender admits offending, the victim was 8, and had experienced sexual acts with the offender since the age of 4.

176. In most respects I found the demeanour of the victim to be consistent with that of a person honestly retelling events that she had experienced. That she spoke softly, and most often kept her gaze away from the questioner, was something consistent with her age and the nature of the subject matter being investigated.

177. That she was honest, and accurate, in significant respects, is supported by the fact of the admissions of the offender to the fact of certain types of sexual acts occurring. Both the victim and the offender agree that sexual touching occurred in the paint room at Z, at X, albeit arguably with differences as to whether there was digital penetration, that fellatio occurred in a toilet, and cunnilingus in the bathroom at W.

178. Yet there are of course significant differences in the accounts of the offender and the victim, the most significant one being the fact in issue, as to whether penile vaginal intercourse occurred on any of the occasions founding counts 1, 3, 4, 5 and 6.

179. As already noted, I formed a favourable view of the victim in the way that she gave evidence. There is no doubt that the victim is being truthful as to being subjected to sexual conduct by the offender from the age of 4 until the age of 8.

180. The question is whether the Crown’s evidence satisfies me beyond reasonable doubt that the nature of that sexual activity was penal vaginal intercourse on the occasions of counts 1, 3, 4, 5 and 6. This is the application of the Liberato direction.

181. The Crown relies on a number of other areas of evidence to support the evidence of the victim, who of course is an essential witness. Those other areas are the complaint evidence, and the tendency evidence.

182. The complaint evidence is set out above. In brief summary it is:

(a) C: spoke with victim in 2022 who told him offender would make her suck his penis and would put his penis inside her vagina, held his hand over her mouth and told her not to tell anyone. The victim said it happened behind the bush at W, and at the farmhouse in V. (b) B: the victim complained to her father in phone calls and by text. In evidence is exhibit L sent by the victim to her father and stating “he used to rape me and do other things”, which she said occurred between ages 4 to 9. (c) A: based on the evidence of A referred to above I find that this disclosure occurred in the period September 2020 to March 2021. The disclosure is set out at [133] et seq above. The victim told her mother the offender did sexual things to her, which, when prompted, she agreed was with hands and mouth. The victim said it happened at W and at other places, and mentioned V. Later, after the first interview, the victim stated to her mother after the mother had identified the location of some photos as being T, that the offender “raped” her under the house there.

183. I note the direction concerning inconsistencies in a complainant’s account. In this case, the disclosure to B is the most compelling, despite the fact that he appears to have an axe to grind with the offender. It is compelling because it is in writing; there is no doubt what the victim is saying, and I accept the Crown’s submission that the use of the word rape by the victim means penile vaginal intercourse, which is supported by her evidence. It supports a finding that penile vaginal intercourse occurred.

184. Despite some limited misgivings as to the way C presented in the witness box, somewhat smug and with an air that he was going to get the offender, I nevertheless do not find that he was doing anything other than seeking to recall the evidence honestly. The description of a hand over the mouth, the exhortation not to tell anyone, and of their being penile vaginal intercourse strikes me as a likely course of events.

185. The mother’s evidence is also of assistance, albeit in the first instance limited to touching with hands and mouth. The reason given for not telling her mother “the full story” is entirely understandable, namely that she did not feel comfortable telling her mother the extent of what happened. Although the victim did not give evidence as to the family dynamics, it is to be remembered that the offender is the victim's mother’s son, whereas the offender is not the son of B, which may explain why the victim was more fulsome with her father than her mother.

186. In determining whether the events occurred as described by the victim I take into account this complaint evidence as supporting her version of events, and her credibility.

187. I have given directions as to delay and inconsistency above. I find that this is a case where the delay is understandable and is explained by the fact of the perpetrator being the half brother of the victim, and of the victim’s difficulty in telling her mother. The delay does not detract from the victim’s credibility. Similarly, save for matters particularised below, the inconsistencies are not so much inconsistencies but rather a lack of completeness initially, with full disclosure occurring later. The omissions, as opposed to inconsistencies, from the first police interview, are more damaging to the Crown case.

188. As to tendency evidence, given the nature of this case, it really does not assist. I accept that on the authorities (see BC v R [2019] NSWCCA 111) acts for which an accused is not criminally liable due to doli incapax may found tendency evidence, though notably the reasoning of Basten J in DS v R [2018] NSWCCA 195 was not rejected altogether, with the reasoning in BC relying on the facts of that case; see at [103]. Once that point is accepted, and given the tendency acts relied on occurred at ages 12 and 13, and the charged acts at ages 14 and 15, tendency reasoning is applicable here. In a way similar to BC the offending “depicts a continuum of conduct consistently with the alleged tendency”.

189. That said, in this case there are admissions to carrying out sexual acts upon the victim; that is not in issue. What is in issue is whether the sexual acts on the occasions of counts 1, 3, 4, 5 and 6 were of penile vaginal intercourse. In that regard there is one occasion amongst the tendency evidence where an act of penile vaginal intercourse is alleged, being the occasion at the bush at W. That evidence is set out at [73] above, and the account of the victim at A140 et seq of the first interview is quite believable. The offender admits to sexual activity on this occasion, but denies the allegation of penile vaginal intercourse.

190. In respect of the tendency evidence, the issue is whether or not I am satisfied that it establishes that the offender has a tendency to act by way of penile vaginal intercourse (if simply the tendency to act is considered, given the inability to be criminally responsible for it). There were 4 occasions of tendency relied on, and in only one of them was there alleged to be penile vaginal intercourse. Whilst that occasion does show that the offender did engage in penile vaginal intercourse prior to count 1, it also shows, on balance, the likelihood (putting aside the Crown’s “escalation” argument for the moment) is to not have penile vaginal intercourse; or put another way, the offender’s tendency is to not have penile vaginal intercourse. Importantly however, what it shows is that prior to count 1 there was an occasion of penile vaginal intercourse, which in my view gives some context to the later allegations, and makes it more readily acceptable that there were occasions of penile vaginal sex as the victim alleges.

191. As a result of the foregoing, there is support for the version of events given by the victim from the complaint evidence, and by reason of an earlier occasion of penile vagina intercourse. I also find that the disclosure of the full extent of the sexual conduct of the offender only occurring over time does not detract from the credibility and reliability of the victim, subject to the various matters referred to below.

192. Furthermore, I consider there is some merit in the argument for the Crown that with the passing of time the sexual conduct of the offender is likely to escalate. That the offender may progress over time to more serious sexual abuse in all the facts of this case is logical. The offender utilises the victim for his purposes, and the temptation to take them further to the point of penetration, or to engage in it more frequently, in my view must have been increasing over time. There may doubtless be cases where that progression does not occur, but in this case the conclusion is well founded given the earlier occasion of penile vaginal intercourse at the bush, and also because of the other matters just mentioned, namely the evidence of the victim and the complaint evidence.

193. My consideration of whether the Crown evidence satisfies me beyond reasonable doubt of penile vaginal sex occurring on the occasions of counts 1, 3, 4, 5 and 6 is to this point favourable to the Crown. Yet there remain numerous matters to consider, including matters omitted from the first child interview, to be able to determine whether the complainant can be considered not only honest but reliable in relevant respects. It is to be remembered that I cannot substitute the events of tendency, for the evidence of the events in dispute. The various matters to consider are set out below.

194. Firstly, the fact that in her first disclosure to her mother the victim made no mention of penile vaginal intercourse occurring. As noted above, on its own I do not consider this detracts from the reliability of the victim. When it is also noted that the victim gives no direct evidence, that is, the words spoken, as opposed to saying they told someone “everything”, of disclosing penile vaginal intercourse to either of her close friends F or G, it adds to the degree of non disclosure, and I take that into account.

195. Secondly, the non disclosure of the offender licking her vagina in the first interview. Further, the reason given for this is because she felt too gross about it; yet in the first interview she is able to mention fellatio and penile vaginal intercourse. The difficulty for the offender here is that the licking of the vagina does occur on his own version of events, so that what this shows is the victim not disclosing at one point conduct which is not disputed to have occurred.

196. Thirdly, there was no mention of any unlawful conduct at T until after the first interview. So there has been disclosure to her mother, F, G, C, her father and a lengthy police interview, before mention is made of this event. Her memory is said to have been triggered by a photograph, though just which one is something of an issue. I accept the evidence of A that the photo that triggered the interest of the victim was Exhibit 2, a photo of the children together on the beach. None of the photographs are of the house where this event allegedly happened. If we assume for the moment that the last offence was 2015, it is almost 6 years before any complaint, and when that complaint is made, the perhaps most serious allegation is not made, given that it is alleged to occur when the offender is 17, (so 4 years later) and after a period of more than 2 years since the previous occasion of sexual conduct. That the workings of the memory are complicated is a given, yet that does not give a licence to overlook the particular circumstances. Here one would expect the victim to remember the final act of penile vaginal intercourse in these circumstances. Further in this regard, the victim is very clear in the first interview that there was no penile vaginal intercourse after May 2015; see A271, and A276 for example.

197. Fourthly, the evidence concerning the house at T shows it was a house built on piers about 2 feet off the ground. The evidence suggests the space between the floor level and the ground level was closed in by slats of some kind, and there is no evidence of it having an entry point. That said, an entry would appear likely for maintenance purposes, though that is perhaps speculative, and on the victim’s case there is plainly a means of entry. On any version, whilst not impossible, it would be unlikely that an act of penile vaginal intercourse would occur in such cramped conditions, and I note that by this time on the Crown case the offender is 17, and I infer bigger than he was at 15.

198. Fifthly, in relation to the occasion in May 2015 in V there are differences between her version of events and her mother’s. The mother says she, the mother, came into the room. The victim gives no evidence of this, but only of the offender entering the room. The mother’s version is consistent with the version of the offender in this regard. This is the type of inconsistency that does not detract from the victim’s account; indeed it suggests that, as the mother said, there had not been much discussion of these events between her and the victim after the initial disclosure, and the discussion relating to the photographs relevant to count 6.

199. Sixthly, on the clutch issue of penile vaginal intercourse, her description is in some ways comparable to the offender’s manner of description. There was resort to saying, when asked what occurred, not much more than “penis to vagina”. At the same time the victim’s evidence made a clear distinction between touching and where there was “rape”, which she clearly defined to mean penile vaginal intercourse, or as she otherwise put it “penis to vagina”. The repetition of “penis to vagina” as a description is a matter I take into account.

200. Seventhly, the leading questions identified in the first child interview. See for example at [71] above and the reference to Q70. The question “how did he touch your vagina” is a very simple question; the question could very easily be put to ask the victim to simply describe what occurred, rather than to suggest the answer. In terms of the present dispute it is of less significance, because this question was relating to his hands, not his penis.

201. Eighthly, her evidence of saying in respect of the Z house that she had a good memory of it because “we” went there and looked at it and “we” know the people that live there seems to be quite wrong. Just when and with who she supposedly went there with is not clear, but the inference is that the most likely person is her mother. Yet her mother said she had never visited since selling that property, and did not know the people who lived there. The victim is giving evidence of an event that did not happen.

202. Ninthly there were significant matters left out in the first child interview. In particular, no reference to cunnilingus in the first interview, and no reference to T in the first interview, which has been addressed above. Her inability to disclose the cunnilingus at first does not damage her, because it is admitted that occurred, so the failure to disclose it was not because it did not happen.

203. The third and fourth matters above result in a finding that I am not satisfied beyond reasonable doubt that count 6 occurred at T. This is not just because of the late disclosure, though that contributes to the conclusion. It is the late disclosure, the strong contrary evidence of the first interview of 2015 being the last occasion of sexual conduct, and the objective evidence of the physical characteristics of the house where this is said to have occurred. As already noted, it may not be impossible, but it is certainly unlikely for the events to occur there as the victim suggests.

204. The eighth matter is a genuine puzzle; it was not however a matter fully explored. I have inferred the reference to “we” is a reference to her mother, yet that was never put to the victim, and perhaps it was a reference to somebody else. Nor is the time clear. It does give rise to a concern as to her memory of some matters.

205. I have taken into account the matters that cause concern. They reinforce my view as to count 6. I note the Markuleski direction. I also note the direction that if some part of a witness's evidence is rejected, that does not mean that some other parts of that witness's evidence may not be accepted. Does this adverse finding as to count 6 mean that the victims evidence concerning counts 1, 3, 4 and 5 must also be rejected? What is different to those counts as opposed to count 6?

206. The victim’s allegation of count 6 was prompted by some photos shown after the first police interview; counts 1, 2, 3, 4, 5 and the 4 occasions of tendency evidence were not. The complaint evidence supports counts 1, 2, 3, 4 and 5, and for that matter count 6, as does the tendency evidence. The victim has been accepted as truthful. The point of difference is that unlike the other counts, there is concern as to how it has come to be that the time at T was a time when an offence occurred, which is not a concern with the other counts. The point of difference is that the offending conduct is unlikely to have occurred in such cramped circumstances under the house. I consider this allegation by the victim to be an honest mistake. It also conflicts with her first child interview where she said there had been no further acts of penile vaginal intercourse after the May 2015 visit to V by the offender.

207. The offender would of course, quite reasonably, argue that if there is a finding of unreliability in respect of count 6, that therefore means the essential witness has been shown to be unreliable in an important respect and should be considered to be unreliable generally, and so should be rejected in respect of all matters. The odd evidence as to the Z house would also be relied on in this regard.

208. In my view the victim is to be accepted in respect of counts 1, 3, 4 and 5. For the reasons just outlined at [206] there are differences in her evidence that allow acceptance of that part of her evidence, and rejection of her evidence concerning count 6. To be added to those matters already referred to, another difference between count 6 and the other counts is that with the other counts it is admitted that sexual acts took place, so she is certainly not wrong about sexual acts occurring on those occasions.

209. I accept the victim as truthful. A good example of this came in her cross examination. Before setting this out, it should be noted that there does not appear to be in all the evidence in chief of the victim, evidence that would support count 2, that is, evidence of the victim where she describes cunnilingus occurring in the bathroom at W. As noted at [102] above she was cross examined about the Easter weekend of 2014. The evidence recounted there reflects a particular memory of what occurred that weekend. She distinguishes between what occurred in the bathroom and what occurred in the garage. She was saying that a certain type of intercourse did not happen in the garage, but did in the bathroom, namely the licking of her vagina. She rejected the suggestion that no penile vaginal intercourse occurred at that time.

210. Had there been no evidence of the victim to support count 2, then given my findings as to count 6, the victim’s evidence would not have established 2 of the 5 allegations in question, and serious consideration would have to have been given as to whether in those circumstances she should be considered sufficiently reliable in all respects for her version of any of the counts to be made out. That however is not the position, due to what I find is a telling example of her frankness and recollection of what occurred, in the evidence recounted above concerning count 2.

211. To the extent it is argued that there was some contamination of the evidence due to the mother, or that she may have suggested matters to the victim, I find that not to be so. Indeed there seems to have been great respect paid to the victim’s situation by her mother as little was said about the matter for the 18 months to 2 years prior to going to police, and in the creation of the timeline the mother was doing what was asked of her by the police, and the victim happened to see some photos, leading to a conversation.

212. The result is that, despite the adverse finding as to count 6, I consider the victim’s evidence sufficiently reliable in all relevant respects to satisfy me, beyond reasonable doubt, that on the occasions of counts 1, 3, 4 and 5 there was penile vaginal intercourse.

Ruling

1. The ruling therefore is that in respect of counts 1, 3, 4 and 5 the sentence will be on the basis of penile vaginal intercourse, and in respect of count 2 the the sentence will be on the basis of cunnilingus and in respect of count 6 on the basis of either cunninglingus or fellatio. There needs to be a determination of which of these is to be the basis for count 6, something about which the parties may either seek to agree, or make further submissions.

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Amendments

05 May 2026

Note on cover page - Judgment has been anonymised and a legend of the anonymisations has been placed on the court file.