The Queen v DLW

INTRODUCTION

1. The Accused appears before the Court facing trial for 4 charges.
2. This trial proceeded by way of judge alone trial, commencing 28 July 2020 and concluding 15 September 2020. On occasions between those dates, I sat in other matters, including presiding over the civil sittings of this Court for 10 days.
3. The charges are 4 counts of aggravated sexual assault, all pursuant to s61J(1) of the Crimes Act 1900 (NSW). The details of these counts, as set out on the indictment dated 28 July 2020, are as follows: 1. that between 4 February 2002 and 10 June 2003, at Gloucester in the State of New South Wales, the Accused did have sexual intercourse with the First Complainant, LM, without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence, LM was a person aged under the age of 16 years, namely, 10 or 11 years; 2. that between 4 February 2002 and 10 June 2003, at Gloucester in the State of New South Wales, the Accused did have sexual intercourse with LM without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence LM was a person aged under the age of 16 years, namely, 10 or 11 years; 3. that between 4 February 2002 and 10 June 2003, at Mannering Park in the State of New South Wales, the Accused did have sexual intercourse with LM without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence LM was a person aged under the age of 16 years, namely, 10 or 11 years; and 4. that between 12 November 2004 and 16 December 2004, at Budgewoi in the State of New South Wales, the Accused did have sexual intercourse with the Second Complainant, AP, without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AP was a person aged under the age of 16 years, namely, 12 years.

ELEMENTS OF the OFFENCE

1. Section 61J(1) of the Crimes Act provides as follows: Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
2. Subsection 61J(2)(d) identifies the alleged victim being under the age of 16 years as a circumstance of aggravation.
3. As to 'sexual intercourse', s61HA defines the term as, among other things, sexual connection occasioned by the penetration to any extent of the genitalia of a female person, or the anus of any person, by any body part or object manipulated by a person, or sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person. The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the Accused, and it is irrelevant that the complainant failed to appreciate that the act was morally or criminally wrong: R v Beserick (1993) 30 NSWLR 510.
4. A complainant does not consent to the act if the complainant lacks the capacity or opportunity to consent, or the consent is obtained through unlawful detention or threats of force or terror. Further, s61HE(5)(a) provides that a person does not consent to the sexual activity if they do not have the capacity to consent to the sexual activity, including because of age or cognitive incapacity. It is not disputed by the defence that both complainants were under the age of 16 at the time of the alleged offending. Both LM and AP lacked the capacity to consent.
5. With respect to the mental element, although the Accused must know that the complainant is not consenting, it is sufficient if he is reckless as to that consent, or he has no reasonable grounds for believing that the complainant consents. For the purposes of this offence, the Accused is reckless where he has intercourse not caring whether the complainant consents or not: Murray v R (1987) 11 NSWLR 12. It is sufficient if the Accused is aware that the complainant might not be consenting or possibly was not consenting: R v Zorad [1979] 2 NSWLR 764. Where the Accused denies that the act of intercourse took place at all, as he does in this matter, it is unnecessary for the trial judge to give any direction concerning recklessness as that issue has no relevance: Murray v R.
6. In addresses, it was conceded for the Accused that if the Complainants' evidence was accepted beyond reasonable doubt then the elements of the charges were made out.

DIRECTIONS

1. As a judge sitting without a jury, I am required to make a note of the directions which I have given myself in determining the outcome of the trial. Some are general directions given in all criminal trials and others are specific to the evidence adduced in this trial.

Not guilty plea

1. As the accused has pleaded that he is 'not guilty' to all counts and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the Accused is guilty or not guilty of these charges, and to return my verdicts according to the evidence that I have heard.

Evidence relating to each count

1. The Court notes that the evidence relating to each count may be different and the Court, in considering each count, is only to consider the evidence admissible on each count.

Closing submissions

1. I have heard and received final submissions from the Crown and Mr Flynn of Counsel for the Accused. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. In no sense are those submissions evidence in the case.

Determining the facts

1. 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.
2. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. This is particularly pertinent, having regard to the nature of the offences with which the Accused is charged.
3. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the video and audio recordings, the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the Accused.

Inferences

1. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.
2. I direct myself, in relation to any inferences I may draw during the course of the evidence, that I must be satisfied of the guilt of the Accused beyond a reasonable doubt. Amongst other things, that means that I must exercise significant care in drawing inferences. I should examine any possible inference to ensure that it is indeed a justifiable inference. 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.

Onus of Proof

1. The burden or obligation of proof of the guilt of the Accused is placed on the Crown. The burden rests upon the Crown in respect of every element or essential factor which makes up the offence with which the accused has been charged. The burden never shifts to the Accused. There is no obligation whatsoever on the Accused to prove any fact or issue that is in dispute. It is not for the Accused to prove his innocence, but for the Crown to establish his guilt.
2. The presumption of innocence means that the person charged with a criminal offence is presumed to be innocent unless, and until, the Crown persuades a tribunal of fact that the person is guilty beyond a reasonable doubt.

Standard of Proof

1. The Crown must prove the Accused's guilt beyond a reasonable doubt. I acknowledge that as a high standard of proof. After consideration of all of the evidence, I must ask myself whether the Crown has established the accused's guilt beyond a reasonable doubt. The Crown does not have the burden of proving beyond a reasonable doubt every single fact that arises from the evidence and is in dispute. It must prove the elements of the charge; that is, the essential facts that go to make up the charges, outlined above.
2. I acknowledge that in a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of the Accused beyond a reasonable doubt? If the answer is 'yes' then the appropriate verdict is 'guilty'. If the answer is 'no', the verdict must be 'not guilty'.

Evidence by other Means

1. Part of the evidence of the complainants was adduced from a remote witness room. In relation to that evidence generally, I direct myself that: 1. the fact that the evidence was given from a remote witness room has no bearing upon whether it ought to be accepted; and 2. the evidence is to be treated in the same way as any evidence given in the courtroom.
2. Tendered in the Crown case without objection were two discs of JIRT interviews, those of the Second Complainant conducted 20 December 2004 (marked MFI 6) and the First Complainant dated 12 July 2005 (marked MFI 10). Those interviews were played as part of the evidence of the complainants, forming their evidence in chief. Transcripts of those interviews were also tendered, and marked MFI 5 and MFI 9 respectively, without objection. In addition, the complainant LM participated in two walk-throughs, which were recorded by audio-visual means. The discs recording these events were tendered and marked Exhibits L and M. Transcripts of these events were marked for identification (MFI 12, 13 and 14).
3. Further, in relation to that body of evidence, the evidence is the recordings on the discs, not the transcripts of same.

Right to Silence

1. The accused chose not to answer questions put to him by the police at the time of his arrest. He has a right to silence and to choose not to answer questions put to him by the police. I acknowledge that it would be wrong for me to use that fact against him. It cannot be used against him in any way at all.

Election by the Accused not to give Evidence

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

Tendency Evidence

1. The Crown opened on tendency. This was on the mistaken belief that a ruling had been made permitting certain evidence to be used for that purpose. A tendency notice dated 8 November 2019 was tendered (Exhibit B). After closing addresses, the Crown notified my Associate that a ruling on tendency had not been made.
2. As a result, the matter was relisted and an Amended Tendency Notice dated 9 September 2020 was tendered (Exhibit T). Counsel for the Accused indicated that his client consented to the relevant evidence being used for tendency purposes (T433.31). It is necessary for me to consider this question and make rulings under the Evidence Act 1995 NSW ('EA').
3. The Crown says that the evidence reveals that the Accused has a tendency to have a particular state of mind, namely to have an interest in young males 14 years old and under, to whom he gains access. Further, the Crown says that the accused has a tendency to act on this interest, namely to engage in sexual activity, including touching the penis of young males and forcing penile/anal intercourse, with young males 14 years old and under, by using violence and physical acts during the sexual activity with young males, and threatening the young males with physical violence or their lives if they disclosed the offences.
4. I have considered the evidence referred to in paragraph 6 of Exhibit T, and the evidence of the complainants at trial. Proceeding on the basis that the evidence would be accepted by the tribunal of fact, I find that it has the common features contended for by the Crown (Exhibit T, Annexure 1).
5. Further, I find that: 1. the evidence is relevant (s55 EA); 2. the evidence has significant probative value (s97(1)(b) EA); and 3. any prejudicial effect it may have upon the Accused is substantially outweighed by its probative value.
6. Accordingly, I grant leave to the Crown to rely upon the evidence for tendency purposes.
7. The evidence suggesting the tendency alleged may only be used by me in the way proposed by the Crown if I make two findings. The first finding is that one or more of those acts occurred. In making that finding, I do not consider each of the acts in isolation, but consider all the evidence and ask myself whether I find that the particular acts relied upon actually took place. If I find that none of the acts occurred, then I must put aside any suggestion that the Accused had the tendency advanced by the Crown.
8. If I do find that one or more of those acts occurred, then I may go on to consider whether, from the acts that I have found occurred, I can conclude that the Accused had the tendency as previously stated. If I cannot draw that conclusion, then again I must put aside any suggestion that the Accused had the tendency alleged.
9. So, if having found one or more of the acts attributed to the Accused occurred, and I also conclude that the Accused had the tendency to act in the particular manner alleged, I may use the fact of that tendency and state of mind in considering whether the Accused committed the offences charged.
10. In doing so, I also bear in mind that this is just one part of the evidence relied upon by the Crown. I must give it what weight I think it deserves in the context of all of the evidence before me.

Complaint

1. The Crown seeks to rely upon what the complainant LM said to Stephen Morell, about an alleged uncharged sexual assault by the Accused which occurred in a shed or garage at Mannering Park, as evidence that such an assault occurred.
2. I direct myself that because of the circumstances in which this complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what LM alleges. 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 was less likely to have been fabricated and more likely to have been accurate. Whether I draw this conclusion is a matter for me and, if I do use it as some evidence of the uncharged act, the weight that I decide to give it is again a matter for me.
3. Secondly, the Crown contends that the fact that LM raised the allegation complained to Mr Morell of being sexually abused in a shed would lead me to accept his evidence. In other words, it makes the evidence of LM more believable than if he had not raised the allegation as he did. Again, it is a matter for me to decide whether LM acted in a way that one may expect him to if he had been assaulted as he said he was. If I find this to be the case, it may support the Crown case because I may find a consistency between LM's conduct and the allegation he makes against the Accused.
4. I pause here to note that 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).

Delay

1. There was varying periods of delay between the alleged offending and complaints being made by the complainants. In the case of AP, the delay was short, about 3 weeks. In the case of LM, leaving aside the complaint to Mr Morell of the uncharged act, and any conversation involving his mother following that, the first record of complaint was the JIRT on 12 July 2005. This occurred about 3 years after the events of Counts 1 and 2, and 2 years after Count 3.
2. I direct myself that the delay in making a complaint about the alleged conduct of the Accused does not necessarily indicate that the allegation that the offence committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.
3. The delay in making a complaint is, however, a matter that I may take into account in assessing the credibility of the complainant's evidence as to what the Accused did. This is a matter which I must consider.
4. It is most important that I fully appreciate the effects of the delay in the Crown commencing these proceedings on the ability of the Accused to defend himself by testing prosecution evidence in his own case, to establish a reasonable doubt about his guilt.
5. I refer to the following specific difficulties encountered by the Accused in testing the evidence of the prosecution: 1. in relation to AP, the Accused was first charged on 30 December 2004. The prosecution case was listed for trial in 2005. The case against the Accused in respect of AP was discontinued in August 2005 (Exhibit O). The investigation was re-opened in 2018; and 2. in relation to LM, the Accused was first charged on 15 August 2018, notwithstanding the fact the complaint was made in 2005.
6. The delay in charging and prosecuting any accused can cause difficulties.
7. These difficulties put the Accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.
8. The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
9. Had the prosecution commenced much sooner, it would be expected that the complainants' memories for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. Any inability of the complainants' to recall precise details of the circumstances surrounding the incidents makes it difficult for the Accused to throw doubt on their evidence by pointing to circumstances which may contradict them. Had the Accused learned of the allegations at a much earlier time, he may have been able to recall relevant details which could have been used by his counsel in cross-examination of the complainants.
10. Some of these warnings relate more to the delay in prosecution than to the delay in complaints being made, as the period of time elapsing between the alleged offending and complaints being made was relatively short.
11. Another aspect of the Accused's disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted the complainants or supported his case, or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him.
12. In relation to the complainant AP, the Accused was charged in December 2004 and there were proceedings brought in Court in 2005 which were eventually discontinued. Therefore, at least in relation to AP, the Offender would have been aware of the allegations and the prosecution at that time. In relation to LM, however, there was the delay in prosecution previously referred to.
13. I am mindful of the need to take into account that, because of delay, the Accused has lost the opportunity to bring forward evidence which may have assisted him.
14. Because the Accused has been put into this situation, he may have been prejudiced in the conduct of his defence. As a result, before I may convict the Accused, I acknowledge and accept that I must give the prosecution case the most careful scrutiny.

The Complainant AP

1. AP was born 13 August 1992 (Exhibit 5). At the time of the alleged offending in November/December 2004, he was 12 years of age. During the course of the trial, he turned 28 years old.
2. In 2004 he was in Year 6 at school. He spent some time in foster care in March and August 2004. He was hospitalised for mental health reasons on 5 occasions in 2004. When not in foster care he lived with his mother in Budgewoi. His father lived nearby, as did the Accused, his mother's cousin.
3. In November 2004, AP's mother started a new job. Arrangements were made for AP to call his father when he returned home to his mother's place so that he could be picked up.
4. The alleged offending most likely occurred, on the Crown case, on 3 December 2004, a day when AP's father picked him up and AP was "agitated and seemed upset".
5. The first time he mentioned anything about the alleged offending was to his teacher, Rebecca Grounsell, on 16 December 2004. According to Ms Grounsell, AP stated "that somebody had been coming over and touching him" (T145.30). Ms Grounsell told him that he would need to speak to the counsellor, William Bond. Ms Grounsell also questioned him as to whether he was telling the truth. AP replied that he was. Ms Grounsell told the Court that she did that "as he had a habit of lying or manipulating the situation to suit him" (T148.10).
6. On the same day, 16 December 2004, AP spoke to William Bond. Mr Bond said that AP spoke about a lot of things that day, and that: The thing that came to mind with him was that he was worried that someone used to come around that he 'didn't like' and he said that this person asked him would he take his clothes off (sic) (T151-152).
7. Mr Bond recalled that AP told him that this person came around more than once.
8. In cross-examination, Mr Bond agreed that at no time did the Second Complainant make an allegation of being forcibly raped or the other person having a firearm.
9. Mr Bond informed the Principal, who notified the Department of Community Services, and AP's mother.
10. Before turning to consider what AP said, I have referenced answers provided to the Officer asking him questions in the course of the Joint Investigation Response Team (JIRT) interview. In adopting that approach, I acknowledge that the transcript has been marked for identification only, and that the evidence is the audio-visual recording.
11. On 20 December 2004, AP was spoken to by Police in the context of an interview by the JIRT. When asked why he had come to participate in the interview, AP responded "because someone tried to like, went to do sex on me" (A59). He said that "he took my clothes off and all that" (A88) and "I was trying to get him off, but he wouldn't" (A89). AP told the Accused that his father was coming soon, which caused the Accused to get dressed. The Accused threatened him, saying that he would kill him if he rang the police.
12. When asked when this occurred, AP told the police it was "about 3 weeks ago, a bit more" (A93). He said that it occurred on a Friday.
13. AP said that he returned from school in a taxi, as usual, that day and walked in the front door. As soon as he did, the phone started ringing. It was the Accused telling him that he would come over. The Accused lived nearby and walked to AP's house. Upon arrival, the Accused asked whether he could come inside, and AP said that he "may as well" (A143).
14. After AP received a call from a salesman, the Accused put AP against the lounge and "that's when he started to do sex with me" (A150). AP went on to describe the Accused trying to strip him and forcing him to take off his clothes. He said that the Accused took his clothes off for him.
15. The Accused then pushed him against the lounge before taking his own clothes off. AP was on the lounge trying to get up. He was positioned with his head on the pillow and his back facing down. The Accused was right next to him. When asked what happened next, AP stated "he done it, like, he done sex" (A173). When asked particularly what he did, AP replied "I dono, he just done sex" (A174).
16. AP was further pressed by the officer questioning him and said "he was, like, getting his, like, penis and trying to put it up my bum" (A176). He said that the Accused was grabbing him, on his legs first, and then his chest. This was occurring right next to the lounge. The Accused was in a standing position, as was AP at that stage. He described that he was struggling to get free.
17. When again asked what he meant by having sex with him, AP replied "like, just like, isn't it more like a rape?" (A201), and then when asked what the Accused did when he had him in that position, AP stated "put his penis up my bottom" (A202).
18. AP was then face down on the floor, with the Accused on top of him. The Accused's penis was up AP's bottom. AP told the interviewer that the Accused's penis went inside his bum, and that he could feel "like a watery sort of thing" (A212). When asked what he meant, he stated "like, creamy stuff" (A213). AP said that the Accused asked him if he could feel the watery bit, to which AP replied that he could. The Accused then said "that's cum" (A216).
19. When asked how the Accused got his penis into AP's bottom, AP said that he forced it in (A218), "he just pushed it in" (A219).
20. AP said that the Accused just got up, put his clothes on and left. Before leaving, however, he said "call the police and you're dead" (A224).
21. AP made a number of statements after his JIRT interview, including in the course of giving evidence, which gave rise to some doubt as to his reliability. Before turning to those matters specifically, I note that evidence was also given by TC (mother of AP), JP (father of AP), and 2 youth counsellors.
22. TC recalled receiving a telephone call from the school principal on 16 December 2004. She was told that AP had gone to the school counsellor and reported that the Accused had touched him inappropriately (T163.40). Further, the principal told her that a report had been made to DOCS, and that she may be contacted by DOCS. Later that afternoon, TC received a telephone call from the JIRT, and arrangements were made for AP to attend for an interview on 20 December 2004.
23. TC further gave evidence that, on 16 December 2004, AP was extremely agitated when she returned home from work. She described how he collapsed on the floor crying and that she comforted him. At no stage did she talk to her son about any of the details of what had occurred.
24. TC told the Court that she was of the understanding that the incident with the Accused took place about 3 weeks prior to the JIRT interview on 20 December 2004. She recalled that on 25 November 2004 she had come home from work one day and AP was sitting on his sister's bed. He had taken an excess of medication, requiring him to attend the hospital.
25. She also recalled another occasion when the Accused visited their house, about 3 weeks or so before the JIRT interview. When the Accused entered the house, AP's demeanour changed, "he got quite agitated, and he came and sat next to (his mother) on the lounge" (T169.35). Before that, he was sitting by himself.
26. JP is AP's father. He recalled the arrangements back in 2004 when his son would return from school to his mother's house. If his mother was working, AP would telephone his father and ask him to pick him up to take him to his place.
27. JP recalled that on 20 December 2004 he received a telephone call from TC, asking him to come over to her place. TC then told JP what had happened: "she said he'd been raped" (T178.1). Having been told that the incident took place about 3 weeks earlier, JP consulted his diary and determined that it most likely occurred on 3 December 2004. He said that on that date, his son seemed very agitated so he took him for a drive.
28. That, together with the evidence of Ms Grounsell and Mr Bond, is the evidence which generally corroborates AP's account as to the incident occurring.
29. As mentioned, there is, however, other evidence which casts some shadow over the reliability of AP's evidence generally, and in relation to this incident particularly. Those matters are: 1. AP telling Ross Elliot that the Accused did not sexually abuse him; 2. AP telling Matthew Varcoe that the Accused did not sexually abuse him; 3. the omission in the 2004 JIRT interview of any reference to the Accused being armed with a weapon, a fact later asserted by AP; and 4. the omission in the 2004 JIRT interview of any reference to the fact that the Accused sexually abused AP over a period of years. Again, this fact was later asserted in evidence by AP.

Retraction of Allegations

1. On 7 July 2005, AP had an appointment to attend the Gosford Office of the Director of Public Prosecutions to prepare the matter for hearing (Exhibit O). He was to be accompanied by Ross Elliott and Matthew Varcoe, both youth services workers at Allambie Youth Services at the time. AP was a resident at Russell House, a facility for children who had been taken away from their biological parents and placed into the care of the State. The role of Mr Elliott was as a youth worker and team leader for a group of other youth workers at Allambie. The focus was to look after the young people who were in their care.
2. He gave evidence that in July 2005 AP was in his care. He thought that he had been for about a month or so. He recalled that on 7 July 2005 AP had an appointment with the Office of the Director of Public Prosecutions in relation to allegations of sexual assault by the Accused. On the morning before the appointment, Mr Elliott spoke to AP about attending the offices and that he would be asked a few questions. Mr Elliott told him "you just tell them the truth and that's it" (T89.30).
3. Later, AP was in the bathroom and he called in Mr Elliott. AP was washing his hands when Mr Elliott said "is everything ok?". AP replied "yeah. He didn't do it". Mr Elliott responded "who didn't do what?" and AP replied "[The Accused] didn't do it". Plainly, that was a reference to the sexual abuse. Mr Elliott left the bathroom to talk with another worker.
4. Mr Elliott told the other worker, Mr Varcoe, what had just occurred, and said "I'm going to ask AP to come out and repeat it in front of both of us". Mr Varcoe replied "yeah that's fine".
5. The following appears in the evidence of Mr Elliott: Q: So then you went back into the bathroom and got [AP] to come into the loungeroom, did you? A: Yeah, he was there. He came out of the loungeroom and he started to play his Xbox and I just said to him again, I said "[AP], can you tell Matt what you just said to me in the bathroom?" Q: And what did he say? A: He kept playing his Xbox and he just said "he didn't do it", and I said "[AP], who didn't do it?", and he just looked up at both of us and said, "[The Accused]". It was just - that was it.
6. Mr Elliott took AP to the Gosford DPP. Mr Elliott told the DPP what AP had said. A statement was taken from Mr Elliott about a week later.
7. Mr Varcoe was also called to give evidence at trial. He recalled that in 2005 he was a youth services worker at Allambie. He described his job. He also confirmed that part of his job was to take children to attend appointments with various agencies. After refreshing his memory from a statement, he said that he did take AP to the DPP on 7 July 2005.
8. As Mr Varcoe's recollection of these events was not clear, with the consent of Mr Flynn, counsel for the Accused, the Prosecutor read parts of the statement to Mr Varcoe.
9. In the course of giving evidence, Mr Varcoe adopted the statement that he had previously provided. That statement included the following extract: So [AP] had an appointment with the DPP on 7 July 2005 where he was to attend the DPP to talk about a court matter and you were in the living room at Allambie House with Ross Elliot, and [AP], and Ross told [AP] that he had the appointment with the DPP and [AP] didn't respond or say anything when he was told about the appointment. When [AP] was told about the appointment he was playing Xbox. Ross then started explaining to [AP] about the seriousness of the allegations, and advised him during the appointment that he had to remain calm and answer any questions asked of him. He, [AP], acknowleged this. About 10 or 15 minutes later we told [AP] to go and brush his teeth. Whilst [AP] was cleaning his teeth Ross stood in the doorway of the bathroom. I remained in the living room, but still in view of Ross. I could hear Ross and [AP] talking but I was unable to hear what they were talking about. Ross then came out to the living room and asked [AP] to follow him. [AP] did this. Ross then asked [AP] "can you repeat what you just said to Matt?", and he was asked about this a number of times. … so [AP] then said "he didn't do it". Ross said "Who didn't do it?" [AP] said "[The Accused] didn't do it". Ross said "Do you understand the seriousness of what you have just said?" I cannot recall what [AP]'s response was to this. [AP] was not asked any more questions about what he had just said. When we attended the DPP office at Gosford the solicitor was informed of the conversation that occurred between [AP] and Ross about [the Accused].
10. Whilst that extract above may appear clumsy in text, it is the best representation of what was said in Court at T137-138.
11. The effect of the evidence of Mr Elliot and Mr Varcoe is that about 7 months after the JIRT interview, and without prompting, AP retracted the allegations made by him in respect of the Accused. Significantly, the retraction occurred after Mr Elliot and Mr Varcoe had told AP that the allegations were serious and that it was necessary for him to tell the truth.
12. This difficulty in the Crown case was raised squarely with the Crown and dealt with in addresses. Whilst the Crown accepted that the retractions were made, the Court was urged to view the retractions in context. The factors relevant to that context, it was submitted, were the following: 1. AP was 12 years of age. I do not consider this to in any way explain away the retraction of the allegations against the Accused, especially as the allegations themselves were made at the same age; 2. AP had been brushing his teeth. I do not consider this to be a relevant contextual matter; 3. AP had been playing Xbox. I do not consider this to be a relevant contextual matter which in any way detracts from the weight to be given to what AP said at the time; 4. AP was in foster care placement. Again, this same circumstance existed in 2004; 5. AP had led a chaotic life through 2004-2005. Again, these circumstances were in existence at the time the initial allegations were made, in the context of the JIRT interview; 6. AP had been in up to 20 placements. These circumstances were in existence at the time the initial allegations were made, in the context of the JIRT interview; 7. AP had been to hospital for psychological reasons on a number of occasions, including 29 July 2004, 5 August 2004, 5 November 2004, 1 February 2005 and 2 May 2005. 3 of the 5 attendances at hospital occurred prior to the JIRT interview. If it is to be suggested that these occurrences gave rise to some doubt as to the reliability of AP, then they must, as a matter of logic, equally apply to the allegations made by AP to the police; 8. AP was a highly emotional and a "very mixed up kid" (T63.35); 9. AP had been living a life of instability with mental health issues; 10. AP could not remember the conversation with Mr Elliott or Mr Varcoe. This has no bearing upon the reliability of what was said to those witnesses; 11. AP could not remember attending the DPP in July 2005. This has no bearing upon the reliability of what was said to those witnesses; 12. at the time the retraction was made, proceedings were current in the Local Court in relation to the offending by the Accused upon AP. The Crown referred to the fact that on 2 February 2005, 1 day after the mention of the criminal proceedings in the Wyong Local Court, the house occupied by TC was broken into. It was submitted that at the time of the recanting of the accusations on 7 July 2005, AP would have been aware that the Local Court proceedings were back in Court on 18 July 2005 for the hearing of the charges against the Accused. The difficulty with this aspect of the submission is that there was no evidence to suggest that AP was affected by what was occurring in the Local Court.
13. On behalf of the Accused, it was submitted that the statements made to Mr Elliot and Mr Varcoe were nothing other than a recanting of the allegations made against the Accused. Even though AP had no recollection of the conversation when asked about it in cross-examination (see generally T107), AP agreed that Mr Elliott was a person in whom he trusted and would confide.
14. In my view, recanting the allegations against the Accused so close in time to when they were made, and without prompting, to persons independent of the investigation and the Accused, gives rise to considerable doubt as to the reliability of the version provided by AP to the police.

Use of a Weapon

1. The second matter of concern is the failure of AP to inform the police or the prosecutors of the fact that the Accused was holding a weapon or firearm when he sexually assaulted AP. He failed to tell the police of that fact during the lengthy record of interview on 20 December 2014. He also failed to tell the police or the prosecutors when he was in conference on 7 July 2005 at the Gosford DPP to prepare the matter for trial (Exhibit O, para 14).
2. In his evidence at trial, AP said that, at the time that the incident occurred in 2004, the Accused had a weapon (T54.12). AP told the Court that he did not know if it was a pretend firearm or not, but that at the time he was "pretty certain" that it was not pretend (T54.33). He thought that he was going to die.
3. The first time that AP mentioned the use of a firearm was after he was notified of the decision of Victims Services in December 2019 (Exhibit 5).
4. An application for compensation was submitted on his behalf through a Witness Assistance Officer in or prior to December 2019. He was notified of an award of $5,000 according to a 'category' into which he fell. The following appears at T74.38: Q: When you heard that $5000 would be the award, you weren't happy with that, correct? A: I wasn't happy with the category listed, yeah. Q: It was after that you first made an allegation of a firearm, or any mention of a firearm. Would you agree with that? A: Yes, yes.
5. It would appear from answers in cross examination (see T75) that a review was submitted to Victims Services on 6 February 2020 (Exhibit 5). He said in evidence (T75): Q: You had a communication with Victims Services in late December 2019, correct? A: Correct. Q: That was just before the Christmas break when they sent you an email with the notice of the decision, correct? A: Correct. Q: "The decision was in the $5,000 category, I actually thought it would have been in the $10,000 category, and that's when I questioned it". Is that something that you've told the police, those words? A: In that category, yes. Q: You requested an internal review on the remuneration payment and it's at that time that you wrote saying that you were sexually assaulted with a firearm (offensive weapon), is that correct? A: Correct.
6. It was apparent from the evidence of AP that he thought that he had told the police in the JIRT interview of the fact that the offending occurred with the Accused using a firearm. Later, he said that he did not tell the police about it because he was scared of the Accused (T78). These pieces of evidence are inconsistent. Further, as submitted on behalf of the Accused, one would expect that if AP was scared of the Accused, as he said that he was following this incident, then he would have told the police about the firearm in order to ensure protection.
7. Without wishing to be unduly critical of the witness AP, the manner in which the evidence about the use of a weapon arose is unsatisfactory.
8. In my opinion, it is a highly material fact, which one would have expected to be disclosed to the police in December 2004 or to the prosecutors in July 2005. Further, the fact that the first time it was raised was by AP in the context of applying for a review of the award received from the Victims Services raises questions as to his motive.
9. Whilst it might be speculated that AP invented the use of the weapon in order to obtain a more satisfactory financial outcome from Victims Services, it is not necessary to engage in that process. It is, instead, necessary to consider whether this evidence gives rise to a reasonable doubt which undermines the Crown case. In my view, the omission of a reference to a firearm in 2004 and 2005, but inclusion of it in a description of the events relating to the incident in 2019 and 2020, raises very serious questions about the reliability of AP. Further, the inconsistent evidence that, on the one hand, he thought he had told police and, on the other, explaining not doing so by reason of the fact that he was scared of the accused, cripples his credibility as a witness of truth.
10. Again, I make these observations not intending to cause any offence to the complainant AP, but also being mindful of my obligation as a tribunal of fact in these proceedings.

Additional Disclosures of Sexual Assault

1. The first mention of other sexual assaults by the Accused upon AP arose in cross-examination. Although the Crown later sought to rely upon the evidence as being context or background evidence, it was plain that the Crown was not aware that the evidence would be given. Nowhere in the Crown Case Statement, the Crown's opening or the evidence in-chief of AP was any mention made of other sexual offending. The Crown frankly conceded that it was unaware of the allegations until the evidence was given.
2. The manner in which it arose was curious and unexpected. AP was being cross-examined about what he said to his school teacher, Ms Grounsell, "somebody has been coming over and touching me". The manner in which that was expressed by Ms Grounsell plainly suggested that it had happened on more than one occasion. This led counsel for the Accused to ask how many times AP was assault by the Accused. For the first time, AP said "a few times" (T84.8).
3. The following exchange then occurred: Q: When did you tell that to the police? A: I haven't. Q: Why not? A: That's why I was getting so unsettled throughout that year up until December. As soon as I resisted he didn't like it and it got ugly and that's what happened (T84.10-16).
4. My impression of AP, again respectfully, when he was giving this evidence about the other sexual assaults was that he was making it up to accommodate the terms of the complaint recalled by Ms Grounsell.
5. His answer about why he did not tell the police was non-responsive. He was asked that question again (T104.9) and answered that he did not tell the police about the other sexual assault "because I was scared". With the greatest respect to AP, this does not make sense. It does not make sense that AP would not tell police about the far less serious sexual assaults than the rape which occurred on the day of the incident. If fear was dictating what he told police, logic would suggest that he would withhold information about the most serious offence.
6. AP failed to provide information about the other sexual assaults on the following occasions when one would expect him to have done so: 1. in December 2004 in the JIRT interview; 2. in July 2005 at Gosford DPP when preparing for trial; 3. on 20 September 2019 when he was re-interviewed by DSC Hayward; 4. in 2019 when submitting a claim for a financial payment to Victims Services; and 5. on 6 February 2020 when making an application to Victim Services to review its determination.
7. Having regard to the numerous opportunities which AP had to disclose the other offending and his failure to do so, I would conclude that the evidence in cross-examination as to other sexual assaults was a fabrication.
8. In re-examination, the Crown asked AP about the "few other times" upon which he had been sexually abused by the Accused. It became clear that he was now asserting that there had been "at least five" (T124.6) occasions when he was sexually assaulted by the Accused over a period of 2 to 3 years (T124.14).
9. In addresses, the Crown's explanation for this irregularity in the evidence of AP was sought to be explained on the following bases: 1. that the offending preceding the incident was different in nature. I reject this submission. AP was asked in the JIRT interview whether "anything like this has happened before and since" and AP replied in the negative (A407-409); 2. that he did not disclose it as he did not want to upset his mother. I also reject this submission as it does not sit with the fact that he did disclose the more serious offending; and 3. that he did not mention it at the time of the JIRT interview as he did not get a chance. I also reject this submission and refer to the questions in the JIRT interview commencing at Q407.

Disposition Regarding Complainant AP

1. I am not satisfied, beyond a reasonable doubt, that the allegations by AP against the Accused have been established, having regard to all of the evidence. Accordingly, I cannot be satisfied, beyond reasonable doubt, as to the essential elements of the offence charged.
2. The acts or omissions giving rise to doubt are: 1. the retraction of the allegations against the Accused in July 2005; 2. the failure by AP to include any reference to the use of a weapon until 2019; and 3. the failure by AP to disclose that he had been sexually abused by the Accused on multiple occasions over several years at any time before his evidence in cross-examination at trial.
3. In my opinion, these discrepancies in his evidence could not be overcome by even the most favourable demeanour findings. There are gross inconsistencies in his evidence which cannot rationally be explained or accommodated. Each matter itself gives rise to a reasonable doubt. Together they make the Crown case against the Accused in relation to the complainant AP untenable.
4. These failings in the Crown case cannot be overcome by calling upon the tendency evidence for reasoning. To do so would be to use the tendency evidence impermissibly.
5. In my opinion, the Accused must be found not guilty on Count 4.

The Evidence of LM

1. Counts 1, 2 and 3 on the indictment relate to LM. The offending was said to have taken place between Easter 2002 and June 2003. Counts 1 and 2 were said to have occurred at Gloucester when on a camping trip. Count 3 was said to have taken place near a toilet block in Mannering Park.
2. There was also an uncharged act said to have occurred before any of the others in the garage at the property where the Accused lived with his family. This is said to have occurred in May 2001.
3. I found LM to be a most impressive witness. Before giving evidence, he had participated in a JIRT interview on 12 July 2005, assisted the police in a video recorded walk through at Mannering Park on 25 September 2018, and also in a walk-through at Gloucester on 20 November 2018.
4. On every occasion that he provided an account, what he said was consistent, cogent, compelling and precise. Even in the JIRT interview in 2005 when he was 14 years old, he had an ability to answer questions and provide an account in a way which was convincing. In answering questions he did not hesitate and seemed concerned to ensure that he answered questions fully with as much detail as he could recall.
5. The reliability of the evidence of LM was further bolstered in the course of the walk-through which occurred in 2018, about 15 or 16 years after the offending. Whilst his recollection of the features of the Accused's house was impressive, that may not have been altogether unexpected given his familiarity with the neighbourhood where he lived for about 5 years.
6. The walk-through at Poley's Place in November 2018 was even more remarkable. He had only been to that property on one occasion. That was around Easter 2002, sixteen and a half years earlier. On the video recording of the walk-through, he was well orientated, despite some changes that had occurred at the property by reason of vegetation growth and deterioration of some of the buildings. He was, nonetheless, able to identify the shed where the showers were situated and a grave site on top of a hill.
7. LM was also able to point out where the acts giving rise to Counts 1 and 2 occurred.
8. LM impressed as a reliable, truthful witness who was able to recall with relative precision events which occurred when he was aged just 10 or 11 years.
9. If LM were the only witness in relation to his complaints, I would have no hesitation in finding that, in respect of Counts 1, 2 and 3, the Crown had proved its case beyond a reasonable doubt.

Discrete Issue

1. There was, however, a discrete issue relied upon by the Accused to submit that the Court could not be satisfied beyond a reasonable doubt as to the guilt of the Accused in relation to this complainant. LM said that he complained of the uncharged act and Counts 1 and 2 to the younger brother of the Accused, DW. DW denied that LM made any complaint.
2. Rather than embark upon a detailed analysis of all the evidence from the beginning, I propose to focus on consideration of this issue, and determine whether it has the effect contended for by the Accused.
3. LM was born on 10 June 1991. He was 3 years and 3 months younger than the Accused (born 3 February 1988) and 2 years and 3 months younger than Dwayne (born 18 March 1989). When the uncharged act allegedly occurred he was 10 years old. When the alleged acts for Counts 1 and 2 occurred he was 10 years old and when the alleged acts for Count 3 occurred he was 11 years old, almost 12.
4. The following short chronology will provide assistance and an understanding of what follows: 18 March 1989 Dwayne born 10 June 1991 LM Born On or about 10 May 2001 Uncharged act in shed/garage In or about March/April 2002 Acts for Count 1 and 2 allegedly occurred In or about June 2003 Act for Count 3 allegedly occurred December 2004 LM attended a camp where he told Stephen Morell that when he was younger he was abused by a neighbour in a shed 12 July 2005 JIRT interview conducted 25 September 2018 Walkthrough in the Mannering Park area conducted 20 November 2018 Walkthrough in the Gloucester area conducted 20 August 2020 Evidence at trial

LM's Evidence Relating to Dwayne

1. Before turning to the evidence, references to the evidence of LM in the police interviews will be made by identifying answers in the transcript (MFI 9). In adopting this approach, I do not overlook that the audio visual recording is the evidence and the transcript an aid to memory.

The Uncharged Act

1. The Accused has not been charged for the act which allegedly occurred in the shed. The reason the evidence was led was: 1. as context evidence, that is, to make what followed more readily understandable; 2. to explain what LM was referring to when he told Dwayne at Gloucester that the Accused 'had done it again'; 3. to explain why LM did not complain to DLW's mother about the shed incident or to DLW's father about the Gloucester incidents; 4. to provide some understanding as to why a formal complaint to police was not made until July 2005; 5. to corroborate the evidence of LM generally; and 6. to form part of the evidence to be used to establish tendency.
2. His account of that event to the JIRT commenced with Q91. After Dwayne left the garage, the Accused entered and locked himself and LM inside the garage. The Accused then hit LM about 3 or 4 times in the face, after telling LM to pull down his pants. When he refused, the Accused is said to have thrown LM to the ground and pulled his pants down. LM then just froze, he was shocked, hurt and scared (A130, 131). The Accused then raped LM "up the bum" (A132). When asked what he meant by that he said "he put his dick in me (sic) arse" (A133). That lasted for about 10 minutes, and then Dwayne returned.
3. Dwayne knocked on the garage door and the Accused jumped off LM, pulled his pants up and ran out the back. LM told the JIRT officer that Dwayne saw the Accused running out the back door, as Dwayne had snuck around the back.
4. In answer to Q147, LM said that Dwayne saw him on the ground before running off to tell his mum. The Accused's mother then came out and asked whether the Accused had done that to him. LM said maybe, but was scared of the Accused.
5. LM told the JIRT investigator that when Dwayne found him lying on the ground inside the garage his pants were still down (A153), and when asked what part of his body his friend could see, LM replied "my arse" (A155).
6. Further, LM said that when the Accused ran out of the garage "he was still pulling his pants up" (A156).
7. LM told the investigators that when Dwayne walked into the garage, he asked what happened. LM didn't say anything at first, and then Dwayne ran to get his mother, who then asked what happened.
8. LM said that when Dwayne ran to get his mother, "I pulled my pants up" (A159).
9. The remainder of the JIRT interview related to the events at Gloucester.
10. It is clear from the evidence that the account by LM was to the effect that Dwayne either saw, or ought to have seen: 1. LM lying on the floor of the garage with his pants down; 2. LM's exposed buttocks; 3. the Accused leaving the garage through the back door; and 4. the Accused pulling his pants up as he did so.
11. In cross-examination at the trial, LM confirmed that when Dwayne entered the back door of the garage, LM did not have all of his clothes on at that time. His pants were still down (T227.35-40 and T231.40).
12. In re-examination (T258 and following), LM said that by the time they went to Gloucester, Dwayne already knew about the garage incident. LM said "he seen me (sic) with my pants down when he came around the back, and that's when he went and told his mum, and then when his mum came out I denied what went on" (T258.13). Further, he said that by the time they arrived at the campsite in Gloucester he had a conversation with Dwayne about what had occurred in the garage (T258.46) in a telephone conversation they had a few days after the garage incident, when the police came around looking for bullets (T259.1-18).
13. Dwayne gave evidence as to his recollections of the day that the incident in the garage is said to have occurred. At the time, Dwayne was 12 years old and LM 10. He recalled going into the shed at Warwick Avenue where they stole the bullets. He recalled that the bullets had been stored in a shed at Warwick Avenue, and that they entered the shed through a rear door which was unlocked. They found ammunition and took "a handful or so" (T287.7) of rounds of ammunition home in a bag or a box. He recalled putting them in a box in his garage, having transported them from Warwick Avenue in a schoolbag.
14. Dwayne remembered that the reason for stealing the ammunition was an incident that had occurred at the Warwick Avenue premises, which caused him an injury.
15. He recalled that the bullets were stored in the garage at his house in a chest. They entered the garage through a front roller door which was unlocked. He recalled being in the garage with LM and the Accused coming into the garage. According to Dwayne, the Accused entered the shed and said that he was going to tell their mother, before he left to go and tell his mother. Dwayne then recalled that his mother and brother returned to the garage. He further recalled that his father was at work that day. He said that the Accused "went straight from the garage door straight inside the back door and told my mum, and then she come (sic) straight out with him" (T289.48-50).
16. Dwayne recalled that his mother entered the garage and that the Accused was behind her. She retrieved the box and LM was at the back door of the garage, in the garage.
17. The following exchange occurred in Dwayne's evidence-in-chief: Q: Now, before [the Accused] went inside to tell your mum about the bullets, did you go outside at all and leave [LM] in the garage? A: No. Q: At any stage do you remember leaving [LM] in the garage alone? A: No. Q: Do you remember ever leaving [LM] alone in the garage with [the Accused]? A: No. Q: Do you remember leaving the garage for any reason that afternoon when you were packing the bullets into the garage? A: No. Q: Now, when you say that you don't remember doing that, did you leave [LM] alone in the garage at all with [the Accused] that afternoon with the bullets? A: No. (T291.8-24)
18. Further, in his evidence in-chief, Dwayne said that when they were unloading the bullets in the garage the Accused was not in the garage.
19. The following further exchange occurred in his evidence in-chief: Q: Do you remember [LM] telling you anything about anything happening with [the Accused] that was of a sexual nature? A: No. Q: Do you remember, at any stage before the camping trip, [LM] telling you anything that had happened between him and [the Accused] of a sexual nature? A: No. (T296.19-25)
20. The Crown then sought and was granted leave to cross-examine Dwayne. Relevant to this first uncharged event, the following exchange occurred: Q: You say that you never left [LM] alone in the shed on that day. Is that right? A: Yes, never. Q: Are you sure about that? A: Yes.

Q: Not even for a minute? A: No. Q: Do you remember going to the toilet? A: No. Q: … so you're positive that you never left him alone, even for 1 minute in that shed on that day, by himself? A: No. We weren't - I believe we weren't in the garage for a long period of time. Q: But, to your recollection, you never left him alone in that shed, by himself, on that day that we're talking about? A: No. Q: You were with him for every minute? A: Yes. Q: You have a clear memory of that day? A: Yes. (T299.49 - T300.25)

1. The Crown then sought to cross-examine Dwayne on a statement he gave to the police in 2018. Although the statement was not tendered in evidence, it is apparent from some of the questions asked of Dwayne what the relevant excerpts of that statement contained.
2. Paragraph 14 of the statement related to the garage incident and was extracted in cross-examination by counsel for the Accused: I don't remember leaving the garage and leaving [LM] inside the garage. I don't remember speaking to mum about anything to do with [the Accused] or [LM]. I don't remember seeing [the Accused] leave the garage or [LM] on the ground in the garage (T324.34-37).
3. The Crown sought to then cross-examine Dwayne on that statement. The effect of that cross-examination is perhaps best summarised by 2 questions: Q: So back on 17 August 2018 you didn't remember leaving [LM] alone in the garage, did you? A: No. Q: But your evidence today is that you definitely didn't ever leave [LM] alone in the garage, isn't it? A: Yes. (T305.27-33)
4. I will analyse the effect of this evidence below in considering Dwayne's evidence as a whole.
5. The Crown then proceeded to put the Crown case to Dwayne. The effect of his evidence was that he was certain that LM was never in the garage alone, and that he denied that he was lying to the Court (T311.1).

Count 1 - In the Bushes at Gloucester

1. In the course of the JIRT interview in July 2005, LM told the police about a further incident that occurred near the river, in the bushes at Gloucester when LM, the Accused, Dwayne and the brothers' father (Gary) were on a camping trip. This is Count 1 on the indictment.
2. On this occasion, LM was spearfishing for eels in the river with Dwayne. Dwayne went to get some ice before the Accused turned up at the river and saw LM in the water. When LM saw him, he ran off into the bushes, chased by the Accused. After chasing him into the bushes, the Accused jumped on him. LM hurt his leg on a rock and, whilst on the ground, the Accused anally raped him.
3. I pause to observe here to observe that what I am doing at this stage is simply reciting the evidence of the complainant LM.
4. LM told the police in 2005 that he told Dwayne about it. He said that Dwayne asked what happened to his leg and LM replied that "your brother ended up doing it again" (A313).
5. Later in the interview, LM said "I ended up tellin (sic) Dwayne that his brother did it again and that Dwayne got heaps, ee, like, pissed off and then, like, he tried to bash his brother" (A389).
6. Later, he repeated again "and then I told Dwayne in the afternoon what his brother did" (A396). This was repeated in answer to 2 further questions (A407 and A410).
7. In the course of answering questions regarding Count 1, the Complainant again confirmed that he had told Dwayne about the uncharged act occurring in the garage after stealing the bullets.
8. Similarly, in his evidence under cross-examination at the trial, LM confirmed that he had told Dwayne about the garage incident before going to Gloucester (T232). Further, he recalled telling Dwayne that he had been sexually abused by the Accused again at Gloucester (T235.23). Dwayne told him to speak up and to tell his dad (T235.27). The Complainant recalled that when he told Dwayne about the abuse at Gloucester they were down near the river (T235.30). Later he confirmed that he told Dwayne what the Accused had done later on that day (T243.24). He again recalled that Dwayne tried to bash his brother at the caravan (T243.40).
9. It is plain from the account given by LM that both in 2005 and under oath in 2020 he said on numerous occasions that he told Dwayne about the incident in the bushes the same day that it occurred.
10. In his evidence in-chief, Dwayne was asked questions about the incident in the bushes. He did not recall LM complaining to him about anything happening with the Accused of a sexual nature (T296.20).
11. After some discussion as to the form of the questioning, the following direct exchange occurred between the Crown and the witness: Q: Did you at any stage during the camping trip have a conversation with [LM] about anything happening with [the Accused] of a sexual nature? A: No. Q: When you were fishing at the river, did you go and get ice and leave [LM] alone at the river? A: No, I don't remember that. Q: Did you speak to [the Accused], to your brother, about anything that [LM] had told you involving a sexual nature at a barbeque when you were camping? A: No. Q: Did you get into a fight with your brother at camping? A: Not by memory, no. Q: Did your brother split your lip any time at camping? A: No. Q: Did you have any conversations with [LM] before camping about [the Accused] doing anything of a sexual nature to him … A: No. Q: … in the garage when you were doing the bullets? A: No. Q: Did you come back from getting ice at the shop one occasion at camping and see [LM] running out of the bushes? A: No. (T297.7 - 34)
12. Again, with leave, the Crown cross-examined Dwayne as to his 2018 statement, to the effect that in 2018 he did not recall certain events which he said that he clearly recalled in 2020 at the time of giving evidence.
13. Again, the contents of Dwayne's 2018 statement were made known in cross-examination by counsel for the Accused: I don't remember anything happening between [the Accused] and [LM] on that trip. I don't remember [LM] telling me anything about [the Accused] on that trip. [LM] could've told me something, I just don't remember him doing so. (Paragraph 21 of 2018 statement by Dwayne to the police - T325.45-50)
14. Within that denial is an admission by Dwayne, contrary to all of his other evidence, that LM "could've told me something". Given the reason for the interview and the surrounding context of the information in that statement, I take that to mean that LM could have told me something about something sexual occurring with the Accused but "I just don't remember him doing so". This hybrid answer may, on one view, undermine the reliability of what Dwayne said to the police and is a concession that LM may have made a complaint which Dwayne could not recall in 2018.
15. In further cross-examination on behalf of the Accused, propositions were put directly and Dwayne denied, under oath, that LM complained to him on the camping trip of anything of a sexual nature occurring with the Accused. He said that he was "certain" that LM never told him about anything that happened with the Accused on that trip (T314.29 - 47).
16. Again, this is at odds with the concession by Dwayne that LM "could have" told him something. To the extent that it may give rise to any inconsistency, I do not rely upon it as an inconsistency in my assessment of the reliability of the evidence of Dwayne.
17. Further, he denied that he got into a fight with his brother during that camping trip and he had no recollection of LM suffering any injury to his leg during that trip.
18. Whilst it may be understandable that years later Dwayne would have no recollection of less memorable events such as LM suffering an injury to his leg on a camping trip, or that Dwayne got into a fight with the Accused, it is difficult to accept that he would not remember being told that LM had been sexually abused by the Accused. Not only does Dwayne say that he does not recall being told about the sexual abuse, he said that he was certain that it did not occur.

Count 2 - On the Rocks at Gloucester

1. This incident was introduced into the JIRT interview in answer to question 313: And then when I was walkin (sic) over the bridge, Dwayne was up at the shops again getting some hot chips and then we, ee, I was walking over the bridge, uh, this little bridge that was, like, over the lit-, this little stream, and then [the Accused] grabs me and pushed me over and then, yeah, jumped on me and then he did what he did before.
2. Commencing in answer to question 411, he then repeated his account of the incident with greater detail.
3. On this occasion when LM was face down in the dirt, with the Accused on his back, LM elbowed him in the side of the ribs. LM said that the Accused told his father that LM had elbowed him.
4. I pause there briefly to refer to a submission made by the Accused in relation to his matter. It was submitted by Mr Flynn for the Accused that the Accused having told his father that LM having elbowed him is an event which ought to have triggered or caused LM to explain to Garry why LM had elbowed the Accused. That is, to make a complaint as to the sexual abuse which preceded it. I reject that submission. It is apparent from the entirety of the evidence of LM that at least upon until when he participated in the JIRT interview, he was fearful of the Accused, which as I alluded to earlier, explains why LM did not complain to either parent of the Accused.
5. In cross-examination at the trial, LM said that he told Dwayne about the incident resulting in LM elbowing the Accused in the ribs (T247). He said that Dwayne knew the reason why LM elbowed the Accused in the ribs. LM told Dwayne what had occurred, after Dwayne's father, Gary, had enquired about the elbowing.
6. I have referred above to the evidence given by Dwayne at the trial, both to the Crown and to counsel for the Accused, concerning whether or not anything of a sexual nature occurred between his brother and LM at Gloucester. I note the question posed by the Crown (at T297.7): Q: Did you at any stage during the camping trip have a conversation with [LM] about anything happening with [the Accused] of a sexual nature? A: No.
7. Again, this raises concerns as to the reliability of the complainant as the person to whom he allegedly complained said that it did not occur. Alternatively, it raises questions as to the reliability of Dwayne.

Count 3 - Near the Toilet Block at Mannering Point

1. The Complainant alleges that about 4 days after returning from Gloucester, he was abused by the Accused near the toilet block at Mannering Point. On this occasion, it is said that the Accused was armed with a knife which had a black handle and 3 holes in the blade. He said that he was anally raped by the Accused. There was no suggestion that he complained of this incident to Dwayne, so for present purposes I will not further explore the evidence in relation to that matter.

Evidence of Dwayne

1. It is sufficient, for present purposes, to observe that Dwayne either denied that any complaint was made to him by LM or had no memory of same.
2. My initial impression of Dwayne was that he was a reliable witness. His evidence was discussed rigorously in the course of addresses. It might be said that if Dwayne's evidence was accepted, then that may give rise to doubt as to the reliability of LM's account.

Evidence of Stephen Morell

1. After reserving my decision and in the course of reviewing the evidence, I revisited the evidence of Stephen Morell. It seemed to me that his evidence had the potential to contradict Dwayne's evidence. Unfortunately, in the course of addresses regarding Dwayne's evidence, and I do not mean this as a criticism of either party, reference was not made to Mr Morell's evidence.
2. As the possibility of accepting the evidence of Mr Morell would have most likely impacted my attitude to the evidence of Dwayne, the matter was relisted on two occasions. Counsel for the Accused was given every opportunity to further address. That occurred on 14 and 15 September 2020.
3. Returning to the evidence, between 2003 and 2010, Mr Morell was a volunteer coordinator with Youth Insearch on the Central Coast. He was described as a 'Youth Support Adult'. He explained that Youth Insearch was a weekend camp run by young people with support adults and clinicians. He said that around 50 young people would participate and discuss issues that affect young people (T275.24). Mr Morell would participate in those camps which were held at Kurrajong.
4. He recalled a camp in 2005 attended by LM. He agreed with a question put to him that the camp was in 2005 and said that LM also went to "one previous, and then he went to a couple afterwards" (T275.40).
5. Mr Morell explained that LM would have been referred to the camp. Mr Morell would take young people from the Central Coast via the Wyong Neighbourhood Centre and thought that was how LM got the referral to the camp.
6. The camp started on Friday and concluded on Sunday afternoon. It provided a chance for young children attending the camp to talk about issues affecting their lives.
7. When asked whether LM opened up about something that had happened to him he replied at T276.9-14: That's correct. What happened is that we had different sessions with different subjects and what happened was that he went through a session on the Saturday and then spoke to somebody in the bunk beds, like at night time, and suggested that he had some problems that he might want to talk about. And then we followed that up because we had a sexual abuse session on the Sunday.
8. Mr Morell explained that the sleeping arrangements comprised 6 bunk beds occupied by 5 young people and 1 leader. He recalled that the person to whom LM spoke was one of the counsellors.
9. Mr Morell said that on the following day in the sexual abuse session, he was present when LM spoke again. He was asked what LM said and he replied at T276.31-35: He sort of like, he basically said that, because it went through a process, he took a while to actually talk about what he wanted to talk about. And he just sort of said that he was abused when he was younger and he just explained that it was somebody in the neighbourhood and that's as far as he sort of went in that situation.
10. Mr Morell said that after the session, he took LM for a walk and that was when he said "look somebody in the neighbourhood in a shed… did stuff to me".
11. When asked whether he gave any details about what that person did to him he replied "just did stuff to him, sexual stuff to him" (T276.46).
12. After this disclosure was made by LM, Mr Morell "didn't take it any further than that" (T276.42). He explained the reason for that was: Because I was a volunteer and just a support adult, so my job was to support him, make sure he was ok and safe. But that's as far as it was going to go (T277.2-4)
13. Mr Morell then spoke to the coordinator of the camp about notifying LM's parents and the need to report the disclosure made by LM.
14. Mr Morell took LM home on the Sunday evening and told LM's mother that her son disclosed that "when he was younger… some person in the neighbourhood did something to him in a shed" (T277.17-18).
15. Mr Morell then made a mandatory report via a hotline.
16. He then explained that LM attended a number of follow up meetings between Christmas and March, before attending the March camp.
17. Mr Morell initially agreed that the disclosure occurred at the Christmas camp in 2004, but later said it may have been 2005. It is apparent from the date of the JIRT interview (July 2005) that the disclosure to Mr Morell occurred prior to that date as the mandatory reporting by Mr Morell was the reason for the JIRT interview. In fact, Mr Morell is referred to in that JIRT interview.
18. Mr Morell was cross-examined. He was asked whether the abuse occurred in the tool shed. Mr Morell said that he remembered that it was in a shed and he was not too sure whether it was a tool shed. I infer from the cross-examination that Mr Morell may have told the police in a statement that LM was abused in a tool shed on a neighbour's property. In response to those questions, Mr Morell said that it was a shed (T279.10 and 14). He agreed he could have told the police that it was a tool shed.
19. Further, in cross-examination, Mr Morell agreed that had there been other disclosures of a sexual nature, he would have put that in his statement to the police.
20. When the proceedings were mentioned before me again on 14 September 2020 for another purpose, I raised with the parties the fact that in the course of reading the transcript of the trial my memory was refreshed as to the evidence of Mr Morell. More particularly, I raised with counsel for the Accused the proposition that the evidence of Mr Morell was complaint evidence in relation to the uncharged act. Counsel accepted that the evidence was capable of being interpreted in that way (T427.45).
21. The position of the Accused in relation to the evidence of Mr Morell was that it was 'unreliable' because it did not mention the other sexual abuse which occurred at Gloucester and near the toilet block at Mannering Point (T427). Counsel submitted that "one might expect the Complainant to at least give some indication of ongoing sexual assault" (T428.45).
22. I am not troubled by the absence of complaint in relation to the incidents giving rise to Counts 1, 2 and 3. I accept the evidence of Mr Morell that it was part of his training not to ask further questions or for details once a disclosure had been made. His job was to support the complainant and to "make sure he was ok and safe" (T277.3).
23. This evidence was consistent with the evidence of the school counsellor, Mr Bond, (re AP): In my training if their first hint of some form of assault had taken place or may have taken place, our training sort of taught us to, not engage in specifics of what happened, but to report it and let it go from there (T156.5-9).
24. I find that what was said by LM to Mr Morell was a reference to the uncharged act perpetrated upon him by the Accused, as it included the following features: 1. LM was abused; 2. it occurred when he was younger; 3. the person who abused him was somebody in the neighbourhood; 4. the abuse occurred in a shed; and 5. the abuser did "sexual stuff" to LM.
25. Unlike Dwayne, Mr Morell is a truly independent witness. In making this observation I do not intend to suggest that the complaint by LM was independent evidence in the trial (SB v R [2020] NSWCCA 207), but that the witness was independent and did not have any reason or motive to lie. This more comfortably permits a finding that the disclosure was, in fact, made by LM to Mr Morell. He was also an impressive witness who made appropriate concessions in cross-examination, for example, in relation to the reference in his police statement to a tool shed. He was a person trained to relate to young people and problems which they have experienced. I have no hesitation whatsoever in accepting his evidence as truthful.
26. Accordingly, I find that in December 2004, LM complained to Mr Morell of the uncharged act, which occurred in the shed or garage of the Accused's premises.
27. The question then is what effect does this finding have upon the manner in which the evidence of Dwayne is to be treated.

Consideration of the Evidence

1. The Crown relies upon what LM said to Mr Morell about the uncharged act as evidence that the act occurred, making it more likely that the subsequent acts giving rise to the charges on the indictment also occurred. That is, if LM was truthful about the uncharged act then it justifies a finding that he was telling the truth about the charged acts. Further, accepting the account of the uncharged act also lays the foundation for the finding that the Accused had the tendency contended for by the Crown in its Tendency Notice (Exhibit T, paragraph 4).
2. I find that the disclosure to Mr Morell was substantially to the same effect as LM's account of what occurred in the shed. In my opinion, I find that the complaint to Mr Morell was made at a time and in a manner that would indicate that the allegation was reliable, which makes it less likely to have been fabricated and more likely to be accurate.
3. Further, the fact that LM raised the sexual abuse in a sexual abuse session at a camp for young people is also consistent with the way one might expect somebody in a position of LM to act.
4. In considering this matter, I am mindful of the direction I provided myself that the fact that a person said 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 occasions.
5. Apart from making it more likely that the sexual abuse the subject of the uncharged act occurred, the complaint to Mr Morell also has a wider impact. It causes me to question whether the evidence of Dwayne can be accepted. I set out above, Dwayne's evidence in relation to the incident in the shed. He denied the following: 1. ever leaving LM in the garage alone on the occasion of the bullets incident; and 2. ever being told by LM of anything happening between LM and the Accused that was of a sexual nature.
6. If the evidence of LM is to be accepted as to the uncharged act then Dwayne walked into the garage after the complainant had been sexually abused by the Accused and LM told Dwayne what had happened.
7. Further, if the account of LM is accepted then Dwayne would have observed the matters referred to above, namely: 1. LM lying on the floor of the garage with his pants down; 2. LM's exposed buttocks; 3. the Accused leaving the garage through the back door; and 4. the Accused pulling his pants up as he did so.
8. In my opinion, had LM told Dwayne of the sexual abuse then Dwayne would recall that complaint. Further, I consider that if Dwayne had made the observations suggested by LM's evidence he would recall seeing those matters just referred to.
9. The result of my finding that LM complained to Mr Morell of the events in the garage means that Dwayne was being untruthful in his evidence when he denied any knowledge of those matters.
10. The question then is what is the effect of the finding that Dwayne gave evidence which was untruthful in respect of the uncharged act. I consider that it fatally undermines the credibility of Dwayne as a witness of truth. He gave evidence under oath which was false, most likely for the reason put to him by the Crown, being that he was lying to protect his brother (T311.1).
11. Viewing his evidence in this light also then raises for consideration the question of whether there was a difference between what he told the police in his statement in 2018 and what he said in Court under oath.
12. In the course of addresses, without being mindful of the evidence of Mr Morell, I was inclined to excuse the distinction between the contents of the statement to the police and the sworn evidence of Dwayne on the basis that the police statement was a narrative and not a document recording questions and answers provided in response to those questions. For example, the inclusion in the police statement that "I don't remember leaving the garage and leaving [LM] alone inside the garage" without more, left open the explanation that the reason he had no recollection of those facts is that they did not occur.
13. In the cross-examination of Dwayne, the Crown proceeded on the basis that at trial he was certain about facts in respect of which he had no recollection at the time of providing the police statement. The following evidence was given in cross-examination: Q: But you didn't tell police that you were sure that [LM] was never alone in the garage, did you? A: Yes, 'cause I wasn't sure at the time of making the evidence but thinking of it from today's date that's what I can recall. Q: So you're sure today. You say that you're sure today that you never left him alone in the garage? [LM]. A: To my memory, that's what I believe. (T306.18-25)
14. Dwayne then attempted to explain that his memory of events had improved between 2018 when he gave the statement to the police and August 2020 when he gave evidence at trial. After careful consideration and reflection upon the evidence, I accept the Crown's submission that Dwayne was an untruthful witness.
15. The rationale for rejecting the evidence of Dwayne is based on the following considerations: 1. it is contradicted by the evidence of the Complainant, whom I prefer; 2. the evidence of Mr Morell supports the finding that the incident in the shed did in fact occur. This finding also compels the rejection of Dwayne; and 3. Dwayne agreed in cross-examination by the Crown that, at trial in 2020, he had a clear recollection of matters which he could not remember when interviewed by the police in 2018.
16. The evidence of Dwayne was the only cause for pause in accepting the evidence of LM in relation to Counts 1, 2 and 3 on the indictment. The rejection of the evidence of Dwayne permits me to accept the evidence of the LM beyond a reasonable doubt as to the matters both charged and uncharged.
17. Before moving on to considering factual findings I recalled in the course of addresses that Mr Flynn of Counsel submitted that in the many cell calls about which Detective Senior Constable Hayward gave evidence, there was no suggestion of any collusion between the Accused and Dwayne. Plainly, had there been any evidence of collusion, that would have been material to the assessment of the reliability of Dwayne's evidence. In my opinion, however, the absence of any collusion does not necessarily mean that Dwayne was telling the truth. In other words, I reject the submission advanced on behalf of the Accused, and maintain my finding that Dwayne was an unreliable witness, the evidence of whom I reject.

Factual Findings in Relation to the uncharged act

1. In relation to the uncharged act which occurred in the shed of the Accused's property, I find the following facts proved beyond reasonable doubt: 1. on 6 May 2001, the police created a COPS Event, 11726038, indicating that LM, Dwayne and the Accused found bullets in an abandoned shed (Exhibit R); 2. on 6 May 2001, the Accused's mother reported to police that one of her sons had shown her bullets that they found in a garage in the vicinity of 1 Warwick St Mannering Park. Police spoke to the Accused's mother and said 3 boys were seen in the area and 9 boxes of ammunition were returned to its owner. No further action was taken by the police (Exhibit P); 3. the uncharged act occurred on or about 10 May 2001, 4 days after the bullets were stolen (Exhibit R); 4. at the time of the uncharged act, the Accused was 13 years of age (born 3 February 1988) (Exhibit R); 5. at the time of the uncharged act, LM was 10 years of age (Exhibit R) 6. the stolen bullets were hidden in Dwayne's shed; 7. then the Accused and Dwayne went for a bike ride to get the rest of the bullets and told LM to count the bullets; 8. at a point in time after the bullets had been first deposited in the garage, the Accused entered the garage and locked LM in it; 9. LM was wearing long pants and a jacket; 10. he had bullets in his jacket; 11. it was his old North Lakes Warriors jacket; 12. he was wearing boxers under his long pants; 13. the Accused was wearing school shorts which were knee high and blackish-brown; 14. the Accused was wearing a green t-shirt; 15. the Accused hit LM about 3 or 4 times in the face; 16. the Accused told LM to pull down his pants and LM refused; 17. the Accused kept telling LM to pull down his pants and LM refused. The Accused kept hitting him; 18. the Accused then grabbed LM and threw him on the ground and pulled his pants down; 19. LM then just froze, and was in shock; 20. he was hurt and scared; 21. the Accused then raped LM "up the bum"; 22. the Accused put his penis in LM's anus; 23. the Accused did this for about 10 minutes before Dwayne returned; 24. during the abuse, LM was lying on the ground on his stomach and the Accused was on LM's back, moving on top of him; 25. as the Accused was moving on top of him, he was going up and down, like "in and out"; 26. his penis was going all the way in and then he pulled it out and then put it in again; 27. he pulled it out halfway then put it in; 28. Dwayne then knocked on the garage door; 29. the Accused then jumped off LM, started to pull his own pants up and ran out the door at the back of the garage; 30. Dwayne caught the Accused running out; 31. as the Accused ran out of the shed he was still pulling his pants up; 32. when Dwayne came into the garage, LM was lying on the ground and Dwayne could see his exposed buttocks; 33. Dwayne saw the Accused on the ground; 34. Dwayne ran to get his mother; 35. after Dwayne ran out of the garage to get his mother, LM pulled his pants up; 36. Dwayne's mother asked LM whether the Accused had done that, to which LM replied "maybe"; 37. Dwayne's mother then asked whether he was telling the truth but LM was too scared to tell her the truth because the Accused was standing behind his mother running his finger across his throat, suggesting that he was going to slit LM's throat; 38. after speaking with Dwayne's mother, LM went home; and 39. as a result of the threats and threatening gestures by the Accused, LM was scared to tell anybody (other than Dwayne) what had occurred because he was scared of the Accused. For this reason, LM did not tell the parents of the Accused.

Factual Findings in Relation to Count 1

1. In relation to Count 1, the facts that I find beyond a reasonable doubt are: 1. the second time that LM was sexually abused by the Accused occurred at Gloucester; 2. LM had gone there with his friend Dwayne, Dwayne's brother (the Accused) and Dwayne's father; 3. they were sleeping in a caravan at a camping ground; 4. the camping ground was located at 814 Thunderbolt Way, Barrington NSW (Exhibit P); 5. the camping ground was named Poley's Place (Exhibit P); 6. the owners were Noel Poley and Ellen Everetts (Exhibit P); 7. as at 20 November 2018 they had been holding a 'hoe down' twice annually since 1980 (Exhibit P); 8. the 'hoe downs' were held on the Easter long weekend and the October long weekend (Exhibit P); 9. the 'hoe down' was attended by performers, children and adults (Exhibit P); 10. the property consisted of 550 acres and about 40 acres of that are used for a camping ground (Exhibit P); 11. there were no records of bookings or other details of who attended (Exhibit P); 12. the acts giving rise to Count 1 occurred around Easter 2002 (Exhibit R); 13. in 2002, Easter Sunday fell on 31 March (Exhibit R); 14. Count 1 (and Count 2) occurred on a trip to Gloucester around Easter time, 1 year after the first incident (Exhibit R); 15. LM was spearfishing for eels in the river with Dwayne; 16. Dwayne went to get some ice; 17. the Accused turned up at the river and saw LM in the water; 18. Gary, the Accused's father, was up at the shower block; 19. when LM saw the Accused, LM ran off into the bushes. He was chased by the Accused; 20. after being chased into the bushes, the Accused jumped on top of LM; 21. LM hurt his leg on a rock; 22. LM had made it about 2 metres into the bushes before he was jumped upon; 23. LM was wearing a pair of boxers with underpants beneath; 24. LM was not wearing a shirt; 25. the Accused was wearing blue boardshorts with a red top; 26. after LM fell to the ground, the Accused pulled LM's pants down and inserted his penis into LM's anus; 27. as he did that, the Accused said "you'd better lie still or this time it's it"; 28. LM thought that the Accused meant that "he was going to try to kill me"; 29. LM was face down in the mud (A381); 30. the whole of the Accused's body was on top of LM, his penis was in LM's anus, and his legs were wrapped around LM's legs; 31. the Accused was holding LM tight so he couldn't move his arms or legs; 32. after inserting his penis, the Accused then started moving up and down; 33. LM then heard Dwayne calling him, but LM could not speak; 34. after hearing Dwayne calling LM, the Accused pulled up his pants and ran off towards an old water tank; 35. Dwayne then came into the bushes looking for LM; 36. LM then pulled his pants up and walked out; 37. he then walked down the stream and returned to spear fishing; 38. that afternoon, LM told Dwayne that his brother "did it again"; 39. in response, Dwayne became agitated and tried to bash his brother; 40. LM said to Dwayne "your brother did it again". Dwayne said "what did he do again?". LM replied "he shoved his dick in me arse and raped me again" (A410); 41. Dwayne told LM to "speak up"; 42. an altercation occurred between Dwayne and the Accused, which their father broke up;

Factual Findings in Relation to Count 2

1. In relation to Count 2, the facts that I find beyond a reasonable doubt are: 1. Dwayne had left LM to go and get some hot chips; 2. LM was on a hill or embankment; 3. the Accused approached him and told him to pull his pants down. He refused. The Accused pushed him down the hill or embankment and dirt boulders started falling (A412); 4. the Accused jumped down and said to LM "alright, if you, if you're going to, you go and dob, well, you'll have dirt boulders hittin' your head"; 5. the Accused again told LM to pull his pants down and LM again refused; 6. the Accused was then lying on top of LM. LM was face down. The Accused was bouncing up and down on top of LM; 7. the Accused's penis penetrated LM's anus; 8. LM elbowed the Accused in the side of the ribs; 9. the Accused rammed LM's face into the dirt and said "lay still or I'll cave your head in"; 10. LM just laid there; 11. the Accused got up, pulled his pants up and walked off; 12. as the Accused was bouncing up and down, he was putting his penis into and removing it from LM's anus; and 13. the Accused told his dad that LM had elbowed him.

Factual Findings in Relation to Count 3

1. In relation to Count 3, the facts that I find beyond a reasonable doubt are: 1. on or about 5 June 2003, the 4th incident (Count 3) occurred. That is, about 6 days before LM's 12th birthday (Exhibit R); 2. on that day, LM was jumping off the jetty at Mannering Park with his friend Michael Kelly; 3. Michael Kelly had snuck out and was caught by his mother; 4. LM was about to walk home and saw the Accused coming; 5. LM hid behind the toilet block, but thought that it was not safe, so he ran into a backyard which turned out to be premises occupied by a friend of the Accused; 6. he was told to get out of their yard, so he ran back to the toilet block; 7. he was looking around the corner when the Accused came up behind him and pushed him over; 8. the Accused pulled LM's pants down and the Accused said "well, you, you move this time or youse hit me or do anything.. I'll kill you right now"; 9. the Accused had a knife in his hand; 10. the Accused laid on top of LM and put his penis into LM's anus and moved up and down; 11. whilst abusing LM, the Accused adjusted his grip on the knife, permitting LM to see it; 12. the knife had a black handle and had 3 holes in the blade; 13. the knife was pointy and the handle had small fingergrips on it; 14. there was a star on the knife; and 15. LM was there for about 15 minutes before running home;

Disposition Regarding the Complainant LM

1. Having made those factual findings I accept that the tendency contended for by the Crown, namely that the Accused had a tendency to: 1. have a particular state of mind, namely a sexual interest in young males 14 years and under to whom he gains access; and 2. to act on that state of mind, namely to engage in sexual activity, including forcing penile/anal intercourse, with young males 14 years old and under; by 3. using violence and physical acts during the sexual activity with the young males; and 4. threatening the young males with physical violence or their lives if they disclosed the offences.
2. Although my acceptance of the evidence in respect of each count would alone support a finding of guilt, I am supported in that view by reason of my finding as to tendency.
3. In respect of Counts 1, 2, and 3 on the Indictment, I find that, beyond a reasonable doubt, the Accused did the following: 1. the Accused inserted his penis into LM's anus; 2. the Accused did so without the consent of LM; 3. that, in any event, by reason of age, LM did not have the capacity to consent; 4. that the Accused was aware that LM was not consenting; and 5. that LM was under the age of 16 years.
4. Accordingly, I find that the offences against LM are proved, beyond a reasonable doubt.

VERDICTS

1. In respect of the charge that between 4 February 2002 and 10 June 2003, at Gloucester in the State of New South Wales, the Accused did have sexual intercourse with the First Complainant, LM, without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence, the First Complainant was a person aged under the age of 16 years, namely, 10 or 11 years, I find the Accused GUILTY.
2. In respect of the charge that between 4 February 2002 and 10 June 2003, at Gloucester in the State of New South Wales, the Accused did have sexual intercourse with LM without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence LM was a person aged under the age of 16 years, namely, 10 or 11 years, I find the Accused GUILTY.
3. In respect of the charge that between 4 February 2002 and 10 June 2003, at Mannering Park in the State of New South Wales, the Accused did have sexual intercourse with LM without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence LM was a person aged under the age of 16 years, namely, 10 or 11 years, I find the Accused GUILTY.
4. In respect of the charge that between 12 November 2004 and 16 December 2004, at Budgewoi in the State of New South Wales, the Accused did have sexual intercourse with the Second Complainant, AP, without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AP was a person aged under the age of 16 years, namely, 12 years, I find the Accused NOT GUILTY.
5. I direct that the exhibits be returned.
6. I further direct that the Offender remain in custody awaiting sentence.

Note: Revised without access to Court File I certify that the previous 259 paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC. Associate James Bailey

Amendments 18 November 2020 - Typographical error corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2020