[1996] HCA 22
Darwiche v R (2011) 209 A Crim R 424
[2011] NSWCCA 62
Dickson v R (2017) 94 NSWLR 476
[2016] HCA 14
JL v R [2014] NSWCCA 130
KG v R [2015] NSWCCA 33
Libke v The Queen (2007) 230 CLR 559
Source
Original judgment source is linked above.
Catchwords
[2012] HCA 17
Crofts v The Queen 186 CLR 427[1996] HCA 22
Darwiche v R (2011) 209 A Crim R 424[2011] NSWCCA 62
Dickson v R (2017) 94 NSWLR 476[2016] HCA 14
JL v R [2014] NSWCCA 130
KG v R [2015] NSWCCA 33
Libke v The Queen (2007) 230 CLR 559[2007] HCA 30
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
MFA v The Queen [2002] 213 CLR 606[2004] NSWCCA 356
R v Apostilides (1984) 154 CLR 563[1984] HCA 38
R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
R v Bauer (2018) 92 ALJR 846[2018] HCA 40
R v CTG [2017] NSWCCA 163
R v Gavel (2014) 239 A Crim R 469[2014] NSWCCA 56
R v Gibson [2002] NSWCCA 401
R v Kilic (2016) 259 CLR 256[2016] HCA 48
R v Kneebone (1999) 47 NSWLR 450[1999] NSWCCA 279
R v Toohey [2019] NSWCCA 182
Richardson v The Queen (1974) 131 CLR 116[1974] HCA 19
Ryan v The Queen (2001) 206 CLR 267[2001] HCA 21
SGJ v R
Ku v R [2008] NSWCCA 258
Siganto v The Queen (1998) 194 CLR 656
[1998] HCA 74
Smith v Western Australia (2014) 250 CLR 473
[2014] HCA 3
The Queen v Baden-Clay [2016] HCA 35
Tiknius v R (2011) 221 A Crim R 365
[2011] NSWCCA 215
Velevski v The Queen (2002) 76 ALJR 402
[2002] HCA 4
Webb v The Queen (1994) 181 CLR 41
[1994] HCA 30
Whitehorn v The Queen (1983) 152 CLR 657
[1983] HCA 42
Williams v R [2012] NSWCCA 172
XZ v R [2018] NSWCCA 76
Zreika v R (2012) 223 A Crim R 460
Judgment (227 paragraphs)
[1]
A 53
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Pell v The Queen [2020] HCA 12
PH v R [2009] NSWCCA 161
Phipps v R [2008] NSWCCA 178
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Bauer (2018) 92 ALJR 846; [2018] HCA 40
R v CTG [2017] NSWCCA 163
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Gibson [2002] NSWCCA 401
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Toohey [2019] NSWCCA 182
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
SGJ v R; Ku v R [2008] NSWCCA 258
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
The Queen v Baden-Clay [2016] HCA 35
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Williams v R [2012] NSWCCA 172
XZ v R [2018] NSWCCA 76
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited: Nil
Category: Principal judgment
Parties: WG (Applicant)
KG (Applicant)
The Crown (Respondent)
Representation: Counsel:
J Stratton SC (WG)
G James QC (KG)
B Hatfield (The Crown)
[2]
Solicitors:
O'Brien Criminal and Civil Solicitors (WG)
Jeffreys & Associates (KG)
Solicitor for Public Prosecutions (The Crown)
File Number(s): 2012/99735; 2012/76518
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 28 October 2018
Before: Huggett DCJ
File Number(s): 2012/99735; 2012/76518
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicants WG and KG were convicted at trial of numerous sexual offences committed against their daughter (the complainant). WG, the complainant's father, was found guilty of 73 counts charged against him, and was sentenced to an aggregate sentence of 48 years with a non-parole period of 36 years. KG, the complainant's mother, was found guilty of 13 of the 16 counts charged against her, and was sentenced to an aggregate sentence of 16 years with a non-parole period of 11 years. The applicants appealed against their convictions and sentences.
The offending related to a large number of alleged aggravated sexual assaults, aggravated indecent assaults and other offences committed by the applicants against the complainant over a period of 14 years, from when the complainant was 5 years old to when she was 19 years old. In relation to WG, the alleged sexual offending was often accompanied by acts of extreme violence. A substantial number of the offences occurred in a structure on the family's property referred to as "the shed". The family was heavily involved in athletics, and WG acted as coach for both the complainant and her sisters.
The complainant, KG and WG gave evidence at trial, as did the complainant's sisters, various friends, police officers and medical experts. The evidence included evidence from a Dr Norrie, who conducted a gynaecological examination of the complainant. A Dr Nittis assisted by taking photographs at the examination, but did not give evidence. Other evidence included nude photographs of KG with her daughters (including the complainant).
Towards the end of jury deliberations, the trial judge received a report in relation to allegations that a juror felt they had been bullied by other jurors, but rejected an application to discharge the jury.
The applicants relied on a number of similar grounds of appeal. In relation to the conviction appeals, the grounds included that the absence of particular evidence at trial resulted in a miscarriage of justice, that the jury's verdict was unreasonable, and that the trial judge erred in refusing to discharge the jury. In relation to the sentence appeals, the grounds included that the sentencing judge erred in not giving weight to WG's good character, that the sentencing judge failed to properly deal with issues of non-exculpatory duress, prospects of rehabilitation and victim impact statements for KG, and that the sentences were manifestly excessive.
The Court of Criminal Appeal dismissed the appeals against conviction and sentence for both WG and KG.
Whether the failure to call Dr Nittis resulted in a miscarriage of justice (WG and KG)
i) While the duty of the prosecutor involves an obligation to call all available witnesses whose evidence is necessary to give a complete account of events, in the circumstances of the case the Crown was not obliged to call Dr Nittis. The obligation arises in the context of an adversarial system and the Crown does not have an obligation to call any expert retained by the accused who happens to disagree with an expert retained by the Crown. Further, Dr Nittis did not disagree with Dr Norrie's observations but rather drew different conclusions from the same factual background: [966]-[978] (Bathurst CJ); [1118] (Fullerton J); [1588] (Fagan J).
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; R v Apostilides (1984) 154 CLR 563; [1984] HCA 38; Gilham v R [2012] NSWCCA 131; Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4, considered.
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 ; R v Gibson [2002] NSWCCA 401; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, referred to.
ii) Rule 89 of the Legal Profession Uniform Conduct (Barristers) Rule 2015 (NSW) does not extend the common law principles to require a prosecutor to call all expert witnesses who may be available, irrespective of whether they were retained by the prosecution or an accused: [979]-[981] (Bathurst CJ); [1118] (Fullerton J); [1588] (Fagan J).
iii) WG: Even if the prosecution should have called Dr Nittis, there was no miscarriage of justice such as to warrant a new trial. Dr Nittis was available to be called by WG, and Dr Nittis did not deal with the critical plank of Dr Norrie's reasons for her conclusion: [982]-[986] (Bathurst CJ); [1118] (Fullerton J).
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, considered.
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, referred to.
iv) WG (Fagan J): WG cannot here establish a miscarriage of justice. It would be a significant and unwarranted extension of the duty of fair presentation of a prosecution case to hold that the Crown is obliged to call an expert engaged by the defence who expresses opinions different from those of a Crown expert in the same discipline:[1592]-[1607] (Fagan J).
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4; Gilham v R [2012] NSWCCA 131, considered.
v) KG: Senior counsel for KG did not raise additional issues of fact or law from those advanced by WG, and acknowledged that KG's trial counsel did not request the Crown call Dr Nittis and did not cross-examine Dr Norrie: [1104] (Bathurst CJ); [1122]-[1125] (Fullerton J); [1589] (Fagan J).
Whether the absence of new evidence in the trial led to a miscarriage of justice (WG and KG)
i) As the evidence sought to be relied on was new, not fresh, evidence, it was necessary for WG to demonstrate that the evidence was of such cogency that innocence is shown to the Court's satisfaction, or was such as to give rise to a reasonable doubt as to guilt. The new evidence failed to do this: [1015]-[1032] (Bathurst CJ); [1118], [1123] (Fullerton J)
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, considered.
Whether the jury verdict was unreasonable (WG and KG)
i) In considering whether there was an unreasonable verdict, the relevant question is whether it was open to the jury to reach the conclusion at which they arrived, not whether it was open to the jury to reach a different conclusion. In most cases, any reasonable doubt held by an appellate court (after taking into account the advantage enjoyed by the jury) will be a doubt the jury ought to be expected to have had: [1050]-[1053] (Bathurst CJ).
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, considered.
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, referred to.
ii) WG (Bathurst CJ): The jury was entitled to accept the complainant's account. The complainant was clear and consistent in her recollection of events, and there was powerful corroborative evidence to her account. The jury was entitled to accept the tendency evidence that WG had a sexual interest in his daughters. While there were matters in the evidence which may have caused the jury concern, it was open to the jury to reach the conclusion it did, and was therefore not unreasonable: [1054]-[1071] (Bathurst CJ).
iii) WG (Fullerton J): The complainant's memory of particular details related to the offences was supportive of her credibility, as was the corroborative evidence. It was open to the jury to reject WG's evidence. The jury enjoyed the advantage of observing the complainant and WG give evidence. The jury was also given detailed directions in relation to delayed complaint, and the issue of delay did not give rise to a doubt that the jury should have entertained in respect of WG's guilt. The evidence available to the jury was capable of meeting the submissions in relation to the complainant's absences from the house, the configuration of the shed, and the use of barbed wire: [1413]-[1452] (Fullerton J).
iv) WG (Fagan J in dissent): The jury had to have had a reasonable doubt about the complainant's ability to recall the incidents in such detail. The jury must also have had a doubt concerning WG's guilt because of the high degree of improbability of the complainant's account. The jury could not reasonably have accepted that the complainant would have kept secret WG's conduct. In consideration of this ground, the Court is required to consider the whole of the evidence. While the Court must have regard to the jury's status as the constitutional tribunal for deciding issues of fact, and the advantage enjoyed by the jury, where a Crown case has depended entirely upon the evidence of a complainant whom the jury found credible and reliable, verdicts of guilty may be found unreasonable. The complainant's evidence was unreliable to the extent that the jury could not find that it excluded the reasonable possibility that the account was the product of psychiatric exaggeration. Further, the corroborative evidence was insufficient to enable to jury to exclude reasonable doubts about the Crown case. The jury must have been left with a reasonable doubt about the complainant's evidence as a whole, and it was not open to the jury to find the accused guilty: [1611]-[1712] (Fagan J).
MFA v The Queen [2002] 213 CLR 606; HCA 53; Pell v The Queen [2020] HCA 12, considered.
The Queen v Baden-Clay [2016] HCA 35, referred to.
v) KG (Bathurst CJ): It was open to the jury to be satisfied beyond reasonable doubt that KG was guilty of the charges against her. The complainant was clear in her evidence, and the jury was entitled to dismiss the proposition that the complainant planted corroborative evidence and to take into account tendency evidence against KG: [1105]-[1113] (Bathurst CJ).
vi) KG (Fullerton J): On the evidence, it was open to the jury to have been left with no doubt as to KG's guilt: [1454]-[1459], [1464] (Fullerton J).
vii) KG: There was no foundation in the evidence that the complainant's complaint to police was the product of mental illness and that her evidence was false because she was mentally unwell. This submission should not have been made without evidentiary support: [1113] (Bathurst CJ); [1460]-[1463] (Fullerton J).
viii) KG (Fagan J in dissent): Intractable improbabilities in the complainant's account of abuse by WG necessarily left a reasonable doubt over her allegations against KG. It was a reasonable possibility open on the evidence that feelings of betrayal by KG may have contributed to the complainant exaggerating her complicity. The complainant's allegations against KG were so improbable to have occurred without complaint that it was not open to the jury to have excluded reasonable doubt with respect to these allegations: [1713]-[1717] (Fagan J).
Whether the trial judge erred in refusing to discharge the jury (WG and KG)
i) The report received by the trial judge, taken in context, would not give rise to a reasonable apprehension or suspicion on the part of a fair minded or informed member of the public that the jury had not discharged or would not discharge its task properly. It appeared that the issue had resolved itself by the time the trial judge received the report. The subsequent sheriff's investigation indicated further that the deliberation process was conducted properly: [1093]-[1098] (Bathurst CJ); [1118], [1126]-[1127] (Fullerton J); [1589] (Fagan J).
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30; Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, considered.
ii) No error is revealed in the trial judge's analysis of the evidence or analysis of relevant principles which would suggest that the exercise of her discretion to refuse the discharge application miscarried: [1104] (Bathurst CJ); [1126]-[1127] (Fullerton J); [1589] (Fagan J).
Whether the decision for the applicants' trials to proceed jointly and the multiplicity of charges tried together resulted in a miscarriage of justice (KG)
i) There were features of the indictment and the evidence which justified the trial being a joint trial. Further, a large amount of evidence tendered against WG was context evidence admissible against KG: [1104] (Bathurst CJ); [1135]-[1136] (Fullerton J); [1589] (Fagan J).
ii) The fact that the jury were not able to reach unanimous verdicts on 3 counts charged against KG allows for the conclusion that the jury considered separately the evidence on each count, and were neither overborne by the multiplicity of the counts charged against WG, nor used impermissible reasoning based on evidence adduced in proof of WG's guilt. The fact that no complaint was made about the adequacy of the trial judge's directions also tells against a miscarriage of justice: [1104] (Bathurst CJ); [1144]-[1149] (Fullerton J); [1589] (Fagan J).
KG v R [2015] NSWCCA 33, considered.
Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62, referred to.
Whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdicts (KG)
i) In circumstances where trial counsel for KG did not ultimately seek to persuade the trial judge that a separate summing up was called for or that there was a need to take separate verdicts, and without developing how the failure to deliver a separate summing up was productive of a miscarriage of justice, this ground was untenable: [1104] (Bathurst CJ); [1149]-[1155] (Fullerton J); [1589] (Fagan J).
Whether the trial judge erred in ruling that photographs of KG and her children could be regarded as tendency evidence against her, as showing a sexual interest in her daughters (KG)
i) The trial judge correctly approached the question of the admissibility of the tendency evidence. It was not for the trial judge to undertake an assessment of the actual probative value of the evidence at the point of admissibility. It was for the jury to be satisfied beyond reasonable doubt that the evidence actually showed the tendency contended for by the Crown before they could use the evidence for tendency purposes: [1104] (Bathurst CJ); [1172]-[1173], [1178] (Fullerton J); [1589] (Fagan J).
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, referred to.
ii) While the photographs did not constitute a sexual act, it was open to the jury to regard KG's conduct in commissioning the photographs as capable of showing a tendency for her to have a sexual interest in her children: [1104] (Bathurst CJ); [1174]-[1177] (Fullerton J); [1589] (Fagan J).
R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, considered.
Whether the failure to disclose the nature and extent of the complainant's therapy resulted in a miscarriage of justice, and whether leave should be granted to tender evidence from Dr John Roberts (KG)
i) The evidence of Dr Roberts was available to KG at the time of trial, and was neither new nor fresh evidence. Further, information about the complainant's therapy was available to both parties, but the issue was not pursued. A forensic decision was made by trial counsel not to call Dr Roberts. No miscarriage was occasioned by holding KG to that forensic decision: [1104] (Bathurst CJ); [1180]-[1187] (Fullerton J); [1589] (Fagan J).
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, referred to.
Whether the sentencing judge erred in not giving weight to WG's good character (WG)
i) There was no legal error in the sentencing judge's approach to WG's lack of previous convictions. The sentencing judge assessed the weight that might be afforded to evidence of good character and determined, in the exercise of discretion, to afford it no weight in mitigation in all of the circumstances: [1100] (Bathurst CJ); [1486]-[1494] (Fullerton J); [1718] (Fagan J).
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, considered.
ii) Bathurst CJ: The sentencing judge correctly took into account the fact of WG's prior good character but in the circumstances of the case gave it no weight: [1101] (Bathurst CJ).
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, referred to.
Whether the sentence was manifestly excessive (WG and KG)
i) WG: The aggregate sentence was not manifestly excessive in the sense of it being "unreasonable" or "plainly unjust", and was open to the sentencing judge in the exercise of her discretion. The number of offences and extreme gravity of the offending was so egregious that no comparison with the aggregate sentences imposed in other cases is useful. The aggregate sentence did not reflect any failure of the sentencing judge to properly apply totality principles, and neither is the non-parole period "unreasonable" or "plainly unjust": [1100] (Bathurst CJ); [1504]-[1530] (Fullerton J); [1718] (Fagan J).
Hughes v R [2018] NSWCCA 2; XZ v R [2018] NSWCCA 76, considered.
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Mulato v R [2006] NSWCCA 282, referred to.
ii) WG (Bathurst CJ): The sentencing judge correctly considered where the facts of the particular offences and offenders lay on the "spectrum" that extends from the least serious instances of the offence to the worst category: [1102] (Bathurst CJ).
R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered.
iii) KG: The aggregate sentence was neither "unreasonable" nor "plainly unjust". There will be a range of possible sentences that could be imposed without error, and it is not to the point that KG's offending may have been objectively more serious such as to elevate her overall offending into a different category of offending. KG's offending was of a most egregious kind, and taking into account the need for an aggregate sentence to denounce her conduct and to reflect principles of general and specific deterrence, the sentence did not warrant the Court's intervention: [1115] (Bathurst CJ); [1579]-[1586] (Fullerton J).
Hughes v R [2018] NSWCCA 2; R v Toohey [2019] NSWCCA 182, considered.
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; R v CTG [2017] NSWCCA 163, referred to.
iv) KG (Fagan J): The aggregate sentence was manifestly excessive. While an appeal against sentence is concerned with the aggregate not indicative sentences, an indicative sentence which appears manifestly excessive may indicate that the sentence was manifestly excessive. The indicative sentences for 5 of the counts upon which KG was convicted were excessive: [1719]-[1729] (Fagan J).
Whether the sentencing judge erred by neglecting to take into account non-exculpatory duress (KG)
i) The question of whether non-exculpatory duress was a mitigating factor was not overlooked by the sentencing judge. Further, the submission on appeal that the evidence suggested a causal link between KG's offending and her suffering at the hand of WG failed to discharge the onus of establishing a factor mitigating sentence on the balance of probabilities: [1115] (Bathurst CJ); [1548]-[1556] (Fullerton J); [1719] (Fagan J).
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, referred to.
Whether the sentencing judge erred in her treatment of KG's prospects of rehabilitation (KG)
i) A sentencing error is not made out by the bald assertion that a more favourable finding might have been made, but by a demonstration that the finding was not reasonably open on the available evidence, or was positively contradicted by it. The onus was on KG to persuade the sentencing judge on the balance of probabilities that an unqualified finding of good prospects of rehabilitation should be made, which was not clearly sought: [1115] (Bathurst CJ); [1557]-[1565] (Fullerton J); [1719] (Fagan J).
Williams v R [2012] NSWCCA 172; Elyard v R [2006] NSWCCA 43, referred to.
Whether the sentencing judge failed to take into account, in mitigation, KG's mental health at the time of sentence
i) There was no factual basis for this submission on appeal: [1115] (Bathurst CJ); [1566]-[1570] (Fullerton J); [1719] (Fagan J).
Whether the sentencing judge erred in her treatment of the victim impact statements (KG)
i) The sentencing judge made no error in her treatment of the victim impact statements or her assessment of the harm suffered by the complainant and one of her sisters: [1115] (Bathurst CJ); [1571]-[1578] (Fullerton J); [1719] (Fagan J).
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, referred to.
[4]
TABLE OF CONTENTS
Judgment OF BATHURST CJ
The Crown case at trial
The complainant's evidence
(i) Counts 1, 2 and 3 (WG)
(ii) Count 4 (WG)
(iii) Count 5 (WG)
(iv) Count 6 (WG)
(v) Count 7 (WG)
(vi) Counts 8 and 9 (WG)
(vii) Count 10 (WG)
(viii) Counts 11 and 12 (WG)
(ix) Counts 13 (KG) and 14 (WG)
(x) Counts 15, 16, 17 and 18 (KG)
(xi) Count 19 (WG)
(xii) Count 20 (WG)
(xiii) Count 21 (WG)
(xiv) Counts 22 and 23 (WG)
(xv) Count 24 (WG)
(xvi) Count 25 (KG)
(xvii) Counts 26, 27, 28 and 29 (WG)
(xviii) Count 30 (WG)
(xix) Count 31 (WG)
(xx) Count 32 (WG)
(xxi) Counts 33 and 34 (WG)
(xxii) Counts 35 (WG), 36 (WG), 37 (KG), 38 (KG), 39 (WG) and 40 (KG)
(xxiii) Counts 41, 42 and 43 (WG)
(xxiv) Counts 44 and 45 (WG)
(xxv) Counts 46 and 47 (WG)
(xxvi) Count 48 (KG)
(xxvii) Counts 49, 50, 51 and 52 (WG)
(xxviii) Counts 53 and 54 (WG)
(xxix) Counts 55, 56 and 57 (WG)
(xxx) Counts 58 and 59 (WG)
(xxxi) Counts 60, 61 and 62 (WG)
(xxxii) Count 63(WG)
(xxxiii) Count 64 (WG)
(xxxiv) Count 65 (WG)
(xxv) Count 66 (WG)
(xxvi) Count 67 (KG)
(xxxvii) Counts 68 , 69 and 70 (WG)
(xxxviii) Counts 71 and 72 (WG)
(xxxix) Count 73 (KG)
(xl) Counts 74 and 75 (WG)
(xli) Counts 76 and 77 (WG)
(xlii) Count 78 (WG)
(xliii) Count 79 (WG)
(xliv) Counts 80 and 81 (WG)
(xlv) Count 82 (WG)
(xlvi) Counts 83 and 84 (WG)
(xlvii) Counts 85 (WG) and 86 (KG)
(xlviii) Other matters
Cross-examination of the complainant
Re-examination of the complainant
PB
LA
Fiona Rourke
Sharon Palma Hannan
Aloha Lambert
Nicola Jane Frey
Rachel Clarke
Judy Ann Wallis
Senior Constable Laleynya Ryan
Donna Louise Kylstra
Ann Margaret Sky
Denise Alison
Lesley Maxwell (Max) Pye
Dr Martin Chase
Dr Lynette Crehan
Sergeant Justin Carroll
Ty Chapman
AG
Susan San Juan
Professor Robert Fitzpatrick
Dr Christine Norrie
Dr Justine Hoey-Thompson
Sergeant Leigh Hawdon
The case for WG
The case for KG
CG
John G
Jane Goodwin
Paul McGuilverey
Maegan Smith
Leanna Smith
WG's application for leave to appeal against conviction
Ground 2: The prosecution failed in its duty to call Dr Maria Nittis, a relevant and credible witness, who, together with Dr Christine Norrie, directly conducted a very important physical examination of the complainant JG on 6 August 2012, with the result that this central part of the prosecution case was unfairly unbalanced, and there was a substantial miscarriage of justice.
a Background
b The reports of Dr Nittis
The submissions
a WG
b The Crown
Consideration
Ground 1: The absence of fresh and new evidence in the trial has led to a miscarriage of justice
(i) Dr Nittis
(i) Dr John Roberts and Ms Lisa Celi
(ii) Linda Brandt
(iii) JG
(iv) Casey West
Consideration
(i) Dr Nittis
(ii) Dr John Roberts and Ms Lisa Celi
(iii) Linda Brandt
(iv) JG
(v) Casey West
Ground 4: The jury verdict was unreasonable and inconsistent with the evidence.
The submissions
a WG
b The Crown
Consideration
Ground 5: The trial judge erred in refusing to accede to the application of counsel made on 28 June 2016 that the jury be discharged
The submissions
a WG and KG
b The Crown
Consideration
Conclusion
WG's sentence appeal
KG's conviction appeal
KG's sentence appeal
Orders
WG
KG
JUDGMENT OF FULLERTON J……………………………………………………………………………230
KG's conviction appeal
Grounds 5 and 6
Ground 9
Grounds 1, 2 and 3
Consideration
Ground 4: The wrongful admission of tendency evidence
Ground 5: (i) Before giving evidence in the trial, the complainant JG had (in the course of therapy related to the allegations in the prosecution case) been subject to 'sand-tray therapy' and 'mandala therapy', the nature and extent of which was not disclosed; whereby there has been a miscarriage of justice; (ii) leave is sought to tender fresh or new evidence from Dr John Roberts, psychiatrist, whereby doubt is cast on the reliability of the evidence of JG.
The indictment and the verdicts returned on that indictment
WG
KG
The Crown case against each of the accused in broad outline
The offences for which WG was convicted and sentenced
The use of tools
The finding of tools
Incident 1: Between 1 April 1997 and 31 July 1997
Incidents 2 to 12
Incident 2: Between 1 July 1997 and 24 December 1998 - JG aged 5
Incident 3: Between 1 December 1997 and 9 February 1998 - JG aged 5
Incident 4: Between 1 April 1988 and 24 December 1988 - JG aged 6
Incident 5: Between 1 April 1988 and 24 December 1988 - JG aged 6
Incident 6: Between 17 September 1999 and 30 September 1999 - JG aged 7
Incident 7: Between 17 June 2000 and 1 July 2000 - JG aged 8
Incident 8: On or about 25 December 2000 - JG aged 8
Incident 9: On or about 31 December 2000 - JG aged 8
Incident 10: Between 11 February 2000 and January 2001 - JG aged 9
Incident 11: Between 31 December 2000 and 8 January 2001 - JG aged 8
Incident 12: As with counts 15-18 against KG, this incident occurred between 31 December 2000 and 28 January 2001 - JG aged 8
Incident 13: Between 1 December 2001 and 28 December 2001 - JG aged 9
Incident 14: On or about 25 December 2001 - JG aged 9
Incident 15: 23 August 2002 - JG aged 10
Incident 16: 1 September 2002 - JG aged 10
Incident 17: Between 28 January 2003 and 2 February 23 - JG aged 10
Incidents 18, 19, 20 and 21: Between 14 August 2003 and 30 November 2004 - JG aged between 11 and 12
Incident 22: Between 1 December 2004 and 24 December 2004 - JG aged 12
Incident 23: On or about 12 February 2005 - JG aged 13
Incident 24: Between 1 September 2005 and 30 September 2005 - JG aged 13
Incident 25: Between 3 December 2005 and 31 December 2005 - JG aged 13
Incident 26: Between 31 December 2005 and 31 January 2006 - JG aged 13
Incident 27: Between 9 February 2006 and 25 February 2006 - JG aged 14
Incident 28: Between 1 July 2006 and 31 July 2006 - JG aged 14
Incident 29: Between 1 August 2006 and 1 September 2006 - JG aged 14
Incident 30: Also between 1 August 2006 and 1 September 2006 - JG aged 14
Incident 31: Between 1 December 2006 and 31 December 2006 - JG aged 14
JG's 2006 diary
Incident 32: Between 11 February 2007 and 1 March 2007 - JG aged 15
Incident 33: Between 2 May 2007 and 31 May 2007 - JG aged 15
Incident 34: Between 1 May 2007 and 1 June 2007 - JG aged 15
Incident 35: Between 20 June 2007 and 21 July 2007 - JG aged 15
JG's 2007 diary
Incident 36: Between 1 December 2008 and 25 December 2008 - JG aged 16
Incident 37: Mid-January 2009 - JG aged 16
Incident 38: Between 1 March 2009 and 31 March 2009 - JG aged 17
Incident 39: Between 1 July 2009 and 31 July 2009 - JG aged 17
Incident 40: Between 1 August 2009 and 1 September 2009 - JG aged 17
Incident 41: Between 1 September 2009 and 30 September 2009 - JG aged 17
Incident 42: On or about 23 December 2009 between 1 December 2009 - JG aged 17
The Falls Creek incident
Incident 43: Between 1 January 2010 and 31 January 2010 - JG aged 17
Incident 44: 17 January 2011 - JG aged 17
Incident 45: 13 October 2011 - JG aged 17
Evidence of complaint in the case against WG
Tendency evidence
AA's evidence
The family photographs
Other witnesses
Dr Hoey-Thompson
The case for each of the accused and closing addresses
WG's evidence
The closing address for WG
KG's evidence
The closing address for KG
Ground 8 of KG's conviction appeal (Ground 4 of WG's conviction appeal)
Ground 4 of WG's conviction appeal
Consideration
Ground 8 of KG's conviction appeal: The verdicts of guilty are unreasonable or cannot be supported by the evidence
WG's sentence appeal
Ground 1
Ground 2
Consideration
KG's sentence appeal
The grounds of appeal
Ground 1: The sentencing judge erred by neglecting to take into account non-exculpatory duress
Ground 2: The sentencing judge erred in her treatment of the applicant's prospects of rehabilitation
Ground 3: The sentencing judge failed to take into account, in mitigation, KG's mental health at the time of sentence
Ground 4: The sentencing judge erred in her treatment of the victim impact statements
Ground 5: The sentence is manifestly excessive
JUDGMENT OF FAGAN J……………………………… ………………………………………………..369
WG's conviction ground appeal 2 - failure of Crown to call Dr Nittis
WG's conviction appeal ground 4 - unreasonable verdict
The complainant's powers of recollection
Improbability of the complainant's entire narrative
Failure to complain due to fear of WG
Evidence contradicting the complainant's fear of WG
Conclusion regarding the complainant's fear of WG
Absence of complaint due to ignorance of wrongdoing
Lack of cross-examination about perceived normality of the abuse
Lack of contact between the complainant and her sisters
Absence of complaint to KG due to perceived complicity
No evidence of detection over the 13 years
Emergence of the complainant's psychiatric symptoms
A reasonable hypothesis consistent with innocence
Corroboration - WG's tendency to sexual interest in his daughters
Corroboration - diaries, tools etc
Application of the legal test of an unreasonable verdict
KG's conviction appeal
WG's application for leave to appeal against sentence
KG's application for leave to appeal against sentence
[5]
Judgment
BATHURST CJ: The applicants WG and KG were indicted on charges involving multiple sexual offences against their daughter JG (the complainant). WG, the father of the complainant, was charged with 73 counts covering the period from 1 April 1997 when the complainant was aged 5, to 13 October 2011 when she was aged 19. The counts may be summarised as follows:
16 counts of sexual intercourse with a child under the age of 10 (s 66A Crimes Act 1900 (NSW)).
One count of aggravated sexual intercourse with a child aged between 10 and 14 under authority (s 66C(2) Crimes Act).
42 counts of sexual intercourse without consent under authority (s 61J(1) Crimes Act).
One count of detain for advantage and inflict actual bodily harm (s 86(2)(b) Crimes Act).
Seven counts of sexual intercourse with a child aged between 14 and 16 under authority (s 66C(4) Crimes Act).
One count of sexual intercourse with a child aged between 10 and 16 under authority (s 66C(2) Crimes Act).
Two counts of indecent assault upon a person under authority (s 61M(1) Crimes Act).
One count of act of aggravated indecency with a person under age of 16 and under authority (s 61O(1) Crimes Act).
Two counts of inciting a person under the age of 16 to commit an act of indecency (s 61N(1) Crimes Act).
KG, the mother of the complainant, was charged with 16 counts, 12 of which involved sexual offences against the complainant, and four of which involved sexual offences against the complainant's sisters, AG and CG. The offences may be summarised as follows:
One count of aiding the commission of the offence of sexual intercourse with a child under 10 years (s 66A Crimes Act).
One count of sexual intercourse with a child under 10 years (s 66A Crimes Act).
One count of sexual intercourse without consent (under authority) (s 61J(1) Crimes Act).
One count of act of indecency towards a child under the age of 10 (s 61O(2) Crimes Act).
Two counts of indecent assault upon a person under authority (s 61M(1) Crimes Act).
Seven counts of act of indecency towards a person under the age of 16 under authority (s 61O(1) Crimes Act).
[6]
The complainant's evidence
The complainant gave evidence that she was born on 10 February 1992 and that she had two older sisters, the elder of which was AG and the other CG. She also stated she had a younger brother, JG.
She gave evidence that when she was about two and a half years old, the family moved to a property in an area near Lismore called The Channon. For convenience, I will adopt the approach taken at the trial, and refer to the property as The Channon. The complainant said that her parents were teachers and that they both coached running as well. She stated that she and her sisters were involved in running, and that she competed at a state and national level and, on one occasion, overseas.
The complainant stated that just before she turned 11 the family moved to the Gold Coast, but usually returned to The Channon over the weekend. She said she recalled that her parents separated for a period of time around 2000 or 2001, at which time the complainant lived with her mother.
[7]
(i) Counts 1, 2 and 3
The complainant gave evidence that when she was five years of age she remembered her mother becoming pregnant with her younger brother JG. She stated that when JG was born, KG stayed in Brisbane, probably for a few months. She gave evidence that she recalled her father was at Uluru at the time. She said that on his return, on one occasion she was in her bed awake when WG came into the bedroom without clothes on. She said he lifted her nightie up over her head, touched the outside of her vagina and then put one finger in her vagina (Count 1). She stated that he got on top of her and she felt something being forced into her vagina. She said that at the time she did not know what it was, but she now knew it was WG's penis (Count 2). She stated he then removed his penis and forced his penis into her mouth (Count 3). She said that she thought at the time that he was weeing in her mouth, but that she now knew that he had ejaculated. She felt severe pain in her vagina and lower stomach and a ripping feeling.
The complainant stated that she did not tell anyone what her father had done.
In cross-examination the complainant agreed that KG was in hospital with JG for about three months following the latter's birth. She also agreed that WG was working at Uluru in Central Australia at the time JG was born. However, the complainant rejected the suggestion that whilst her mother was at the hospital for the three months she never stayed overnight at The Channon.
It was suggested to her that from 1 April to 7 April, around the time of JG's birth, she stayed at Melville House, a "bed and breakfast" at East Lismore. She said she remembered KG dropping them off there, but did not remember WG picking her and her sisters up from those premises on 7 April.
It was put to the complainant that on 7 April she was driven to Brisbane, where she saw her mother. She said she remembered going up and staying at "Ronald McDonald or somewhere like that", but that she was not up there for the whole three months.
[8]
(ii) Count 4
The complainant stated that the incident the subject of Count 4 took place after her brother was born, but definitely before his first Christmas. She stated that she recalled coming home from school and that her mother, KG, was not at home. She said she went into the garden to help WG and that she got into trouble for something. She said that WG grabbed her by the hair and dragged her along the ground to the creek, and that when they got to the creek he put her head under the water and held it there. She said the next thing she remembered was going back to the house with WG, and WG telling her to take her clothes off because they were wet. She said he told her to dry herself, and remembered following him into her parents' bedroom where WG took his clothes off. She said he lay on his bed, and that he told her to rub his groin area and that she did so. She said that after a little while, WG grabbed her hands, put them on his penis, told her to put it in her mouth and grabbed her head. She said that his penis went into her mouth, and that she remembered that he seemed angry and feeling as though she was choking. She said WG got even angrier, and grabbed her by the hair and threw her off the bed onto the ground and told her to go and put some clothes on. She said she did what she was told, and remembered her mother coming back from a run later and being happy that she was at home. She said she thought WG was angry because she did not please him.
The complainant said that the creek she referred to was on the property away from the house. She was shown a rough drawing of the property, which she said was consistent with where things were on the property. In particular, she said the position of the house and garage was consistent with their actual locations. She also stated that the diagram showed roughly where the creek ran through the property, and that the pathways leading from the house towards the creek area and the orchard were consistent with her memory of where the pathways were, with the exception that the path from the house to the creek was straight.
The complainant was also referred to an item on the diagram labelled "chook pen". She said she referred to it as "the shed". She stated that its location as shown on the diagram was roughly consistent with its position in relation to the house.
It was suggested to the complainant in cross-examination that WG never worked in the garden during the week but only on weekends. She agreed that WG was a workaholic, but said it was not true that he never came home from work until after she had had dinner. She rejected the proposition that WG was never at home when she came home from school.
[9]
(iii) Count 5
The complainant said she recalled a further incident when she was five but before she had turned six. She remembered that it was school holidays and that she was at home with WG and got into trouble for something. She said that WG grabbed her by the hair and arm and dragged her down to the shed. She said the shed was approximately 50 metres from the house in a straight line, but a lot longer going along a path. She stated that the shed was made out of tin.
The complainant said that when she and her father got to the shed he opened the shed door and dragged her in. She said she remembered being on her knees and her father pulling his shorts down. She said she knew what she had to do. She said she did not want to get into any more trouble, so she put his penis into her mouth and continued to suck on it, and her father started to make noises. She said she felt him ejaculate, thinking he was weeing into her mouth, and that she felt sick like she was choking and could not breath properly. She said he took his penis out of her mouth and pushed her to the back wall of the shed. She said that once he was gone, she spat out what was in her mouth onto the ground in the shed. She stated that on that day she remembered that WG was wearing red socks.
The complainant said that she stayed in the shed for the rest of that day and that night. She said that when it was light again, WG came back into the shed and took her back up to the house. She said that when she got there she saw KG who was making lunch, but that nothing was said about where she had been.
Six photographs of the shed taken in 2012 were tendered in evidence (Exhibit 2). The complainant said that the photographs did not show the shed as she remembered it in 1997 and 1998, in that there was no wood in it, and the chicken wire depicted in the photographs was not there, but that the shed was fully covered. In that context, she referred to the photograph in Exhibit 2 described as photograph 23, stating that at the time of the incident there were no holes in the chicken wire other than those that formed part of the chicken wire.
The complainant was also referred to photograph 27, and stated that at the time of the incident, the door there depicted was attached to the entrance.
The complainant was asked by senior counsel for KG whether when she said she saw her mother in the kitchen if there anything to indicate that KG saw her. She said there was, because she walked through the kitchen and KG looked at her, but that there were no words spoken. She said that WG was there and KG did not talk much in front of him.
[10]
(iv) Count 6
The complainant gave evidence of a further incident with her father in 1998 after she had turned six. She said it occurred after her brother's first birthday and before Christmas 1998. She said she was not sure if KG was living at The Channon at the time.
The complainant stated that she remembered being out in the garden with WG, and that he took her down to the creek and told her to stand in the water with all her clothes on. She stated she remembered the water being freezing. She said she went back up to the shed with WG and took all her clothes off because they were wet. She said she could not remember if WG told her to take them off, but she remembered that he took his shorts off as well and that she knew what that meant. She said, "I knew what I had to do".
The complainant said she went up to WG, held his penis in her hand and put it in her mouth and sucked on it. She kept doing that until he ejaculated in her mouth. She said he took his penis out, and that the next thing she could remember was him getting some rope that was in the shed and tying her wrists together, and that after he did that he left the shed.
The complainant said that she remained in the shed, and that she remembered it went dark "three times". She said that WG came back after it had been dark once, and brought some water down to her in a cup and let her have some. She remembered needing to go to the toilet but she was just too scared to ask WG, and she could not hold on. She said that after he left, she ended up having to go to the toilet in the shed. She said that later on that day, WG came back and saw that she had gone to the toilet and slapped her across the face with one of his hands. She said that after it had been dark three times, WG came in and untied her and she went back to the house with him. She said she remembered being extremely weak and feeling very sick but she could remember going to school that day.
The complainant said that she remained naked the whole time she was in the shed.
[11]
(v) Count 7
The complainant said that in 1998 when she was six years old she remembered going to bed and waking up with WG on top of her. She said she remembered going to bed wearing a long pyjama top and long pyjama pants, but that the pyjama pants were off. She said she recalled WG forcing his penis into her vagina. She said she remembered feeling a lot of pain to her lower stomach and to her vagina, "a horrible ripping feeling". She stated that WG kept moving back and forth so that his penis was going in and out "with my vagina". She said she could remember that his movement got faster, and that she could feel his breathing on her neck and face.
The complainant stated she remembered that when she woke up there was blood between her legs and on the sheets, and that she could hardly stand up because of the pain in her stomach.
It was put to her in cross-examination on Counts 6 and 7 that her father was overseas from 26 October 1998 to 12 December 1998. She said that was possible, because she remembered the incidents and that it was cold, and that it was not cold in October.
[12]
(vi) Counts 8 and 9
The complainant said that in 1999 when she was seven years old she competed in a 100 metre running event at Olympic Park in Sydney. She said this was the first time she had competed at a state level. She said she travelled to Sydney with her sisters, who also competed.
The complainant said that she competed in the heats and did not think she had made the final, so she had some hot chips to eat, which she said she was not usually allowed to eat. However, she was called for the final and she said she came fourth.
The complainant said when she and her sisters returned to Lismore her mother picked them up. She stated that at that time WG was not at home, but that when he came home he was really angry at all of them. She said that she remembered KG being really upset and crying.
She stated that in the afternoon WG took her away from the house, up the hill close to the house and down towards the creek, and that when they got to the rainforest part he pushed her over and started kicking her back and head. She stated she remembered that he dragged her by the hair all the way down to the creek, and stuck her head under the water and kept holding it under. She said she remembered everything "getting really tight". She stated he held her head under the water for a very long time, and that he lifted her head back out and stuck it back under a few times. She remembered going back to the house and KG asking why she was all wet, and that she said she had gone for a swim.
She remembered that WG came to her room that evening. She remembered that she pretended to be asleep and felt WG getting on top of her. She said she opened her eyes and she could see WG on top of her. She said he spread her legs apart and placed his head between her legs, and that she could feel his tongue on her vagina (Count 8). She said she did not feel any pain. She said he then moved further up so that his body was over the top of hers, that she then felt him pushing his penis into her vagina and that he kept pushing in and out (Count 9). She said he was much quieter than he usually was.
In answer to further questioning she said that he was licking the outside of her vagina.
In cross-examination, it was put to the complainant that she had said in chief that these incidents occurred a few days after 17 September 1999. It was suggested to her that her father was away camping between 17 September 1999 and 20 September 1999, and from 26 September 1999 to 30 September 1999. She said she remembered him not being at home when she returned from Sydney (see [35] above), and then remembered him being back at home and the incidents happening. She said she could not remember anything after the incident and that it was possible he went camping again.
[13]
(vii) Count 10
The complainant stated that in the year 2000 she participated in an event at Eastern Creek Raceway. She produced a qualifying certificate dated 16 June 2000 in respect of that event.
The complainant stated that either the night before or a few nights before she went down to the State Championships Cross Country at Eastern Creek, she was in her bedroom when she heard her father coming down to her room and enter her room, shutting the bedroom door. She said she took her own pyjama pants and long pyjama top off so that she was fully naked. She said that WG was naked as well. She said her sheets were pushed all the way back to the end of the bed, and that WG got on top of her and that she had already separated her legs for him. She stated that she automatically took all her pyjamas off when he came in because "I thought I knew what he was coming in to do and that's why I was lying down there as well with my legs separated". She said he forced his penis up into her vagina. She said she felt him ejaculating (or back then, thought he weed) inside her. She said he left the bedroom, leaving the door open.
The complainant stated that either the next day or within the next few days, she travelled down to Sydney with her sisters and WG, and competed in a race. She said she remembered feeling quite sick in the stomach and her legs feeling sore, and that she came 32nd. She stated that once she found WG he took her away from everyone else, put her on the ground, and started to kick her in her stomach. She said, "I remember him calling me weak". She remembered that when she returned home with her father and her sisters WG told her to stay in the car, then pulled her down towards the shed. She stated that when they got to the shed WG pushed her into it and shut the shed door. She stated that she stayed in there for the night. She said he came back when it was light again but that he was still very angry, and she remembered promising him that she would never perform that badly again.
In cross-examination by counsel for WG, the complainant said she felt sick in the stomach both during and after the incident occurred. She said that her legs were really sore around her groin area.
The complainant agreed that a few days after the incident she ran in a race and finished 32nd. She said that during the race she was very sore and that thinking back on it, she believed she ran badly because of the condition she was in.
[14]
(viii) Counts 11 and 12
The incidents the subject of these counts were said to have taken place in the year 2000 when the complainant was eight years old. The complainant had an aunt (PB) who lived on the Gold Coast. The complainant travelled to her aunt's house on Christmas Eve with her mother, sisters and brother. WG came later on.
The complainant said that after she went to bed she woke up at some point and went to the kitchen to get a drink of water. She said her father was lying on the couch and that he told her to come over to him. She said that WG had a blanket over him which he lifted up, and that she "automatically popped under the blanket", at which point WG pulled his penis out of his "jocks". She said that she put her mouth around his penis and sucked on it until he ejaculated. She said she remembered not wanting to swallow what was in her mouth but she was also scared not to go straight back to bed, so she swallowed it and went back to bed.
The complainant stated that the next day she became really upset because she wanted to stay with her mother. She stated that she remembered getting really upset and crying, something she was not allowed to do. She stated that WG told her she had to go with him, her two sisters and brother up to "O'Reilly's" for the day. O'Reilly's was a mountain at the back of the Gold Coast hinterland. She said that they went for a walk and that WG was quite angry. She said he pulled her hair and whacked her across the face. She said that there was a big storm, and that the next thing she remembered was travelling back to The Channon.
The complainant stated that when she returned to The Channon she wanted to go to bed, but that WG came down and told her to go with him. She said that they headed towards the shed and that she kept saying she was sorry to him because of the way she had acted. She said that when they reached the shed, WG took her to the back corner of the shed and tied or wrapped something around her wrists and arms, although she could not see what it was. She said she could remember something pushed up against her that did not let her move. She said that WG left the shed and that she stayed there for the night. She said that when it was light she could remember that she had rope around her wrists, which was the same rope that had been used before, and that there was also barbed wire across her.
[15]
(ix) Counts 13 and 14
These counts related to incidents which were said to have occurred on New Year's Eve, 31 December 2000. Count 13 was the subject of a charge against KG whilst Count 14 the subject of a charge against WG.
The complainant stated that on New Year's Eve 2000, she was at home at The Channon with WG, her sisters AG and CG and her brother JG. She stated that KG was not at home. She stated that her parents were separated at the time. She said that WG went looking for KG and took the children in the car with him. She said they drove to Lennox Head but did not find KG. WG was very angry because he could not find her.
The complainant stated that when they returned home WG told the children to go straight to bed. She said she went to bed but woke up with WG on top of her, holding her down. She stated that he had his hands on her chest and that she remembered she was not wearing the nightie that she had on when she went to bed. She stated that WG pushed his penis into her vagina as he held her down, and that he moved back and forth so that his penis went in and out of her vagina (Count 14). She remembered that he started to make noises. She recalled that he said to her, "You should be enjoying this. Make noises like I am". She said she started making noises because she was scared of what he might do, and because she knew that when she pleased him he was not as angry as he usually was.
The complainant said that WG ejaculated inside her and pulled his penis out, and that she remembered that hurt her. She stated that after he left her bedroom she remembered him having a shower. She said she just stayed in bed and fell asleep later on.
The complainant stated that when she was making noises and WG had his penis in her vagina, it reminded her of something she had been taught by KG. She said what she was referring to was taught on a fair few occasions, but she remembered one specific occasion close to this incident, before Christmas 2000.
In that context, the complainant said she recalled a conversation with KG in the complainant's room. She remembered that it was after coming back from the pub and that KG had had quite a bit to drink. The complainant said she knew that because she could "smell it on her", that KG was slurring, and that KG had a particular way about her when she drank.
The complainant said she remembered that she and KG were talking generally about sex. She said that KG said to her, "It makes it better if you make noises", and that "it would make it better for you and dad". This was the subject of Count 13.
[16]
(x) Counts 15, 16, 17 and 18
These counts were all against KG. Count 15 alleged an act of indecency against the complainant, Count 16 an act of indecency against AG, Count 17 an act of indecency against CG and Count 18 a charge of having sexual intercourse with the complainant.
The complainant recalled that in January 2001 she was at home on school holidays with her mother and sisters. She said she recalled coming home to The Channon from a pub and going into AG's room. She said that the whole family had been at the pub.
She said whilst she and her sisters were in AG's room, KG was telling them how to touch themselves in a sexual way. She stated that she remembered KG demonstrating and saying "This is how you pleasure yourself". She stated that KG was wearing a nightie and had no underwear on. She said KG was standing and that she and her sisters were all sitting down.
The complainant stated that the demonstration involved KG lifting up her nightie and touching herself on the vagina. She stated she now knew that KG was touching her clitoris. She said that KG said to them that touching there would feel good. She stated that KG also used one of her fingers and put it up into her vagina. She remembered that after that, KG and AG had a conversation about orgasms, but that she did not know what that meant. She said she remembered CG butting in and saying she had given herself one before.
The complainant said that later that evening she saw KG in her bedroom. She stated she remembered wanting to talk to her about whether she would have made the noises properly. She said she remembered KG saying it would have made it better for dad and asking the complainant if it made it better for her. She remembered telling KG, "I didn't like it". She stated KG then said she would show her how she was meant to feel.
The complainant then gave this evidence:
"I was wearing a nightie and she was sitting on my bed with me and she touched the outside of my vagina and I didn't know but I now know she was touching my clitoris and she then used one of her fingers and put it up my vagina and I remember her asking me if I liked it, if I felt good, and I remember saying, 'Yes', because I just thought that - I thought that what she was doing was to help me and I didn't know that it was wrong. I didn't know. Sorry."
[17]
(xi) Count 19
The complainant stated that on the same night that the incident the subject of Count 18 was said to have occurred, WG came to her bedroom, up to her bed, separated her legs, got on top of her and forced his penis into her vagina. The complainant said she remembered being very upset and started to cry, "which is bad". She said it was bad because WG got really angry and told her to shut up, and threatened her with the shed. She stated that WG took his penis out of her vagina and got off her, pulled her out of the bed onto the ground and down the corridor of the house. She said they went through the kitchen and that she remembered him getting the torch out of the pantry, and that he kept pulling her out of the house by her hair. The complainant said that WG pulled her down to the creek. She stated she remembered it hurting a lot and saying sorry to him, because she had not been down to the creek at night and was terrified. She stated that she remembered WG putting the torch on the rocks and pushing her into the water. She remembered trying to get onto the rocks and hold herself up but slipping and WG coming and grabbing her head, sticking it under the water and holding it there for a long time. She stated she remembered that after he did that a few times he pulled her out of the water and they started heading up towards the house, but that they turned off towards the shed. She remembered that when she got to the shed WG opened the shed door and pushed her into it.
The complainant said she remembered WG shutting the door and locking it with what she thought was a padlock. She said she was in there that night and that the next day when it was light, WG came back to the shed and she went back up to the house with him, seeing KG. She said it must have been morning because she remembered the smell of coffee in the house and she remembered KG gave her a hug in the lounge room but that they did not talk about what happened the night before or anything like that.
It was suggested to the complainant in cross-examination that WG was overseas from 21 January 2001 to 29 October 2001. She said her evidence was that the incident occurred in the school holidays in January. She did not recall the specific date.
It was put to the complainant in cross-examination that there was no padlock on the shed door at any time, and she said there was. It was also suggested that there was no door on the shed, and she said that there was a door on the shed.
[18]
(xii) Count 20
The complainant recalled a time in late December 2001 when WG was supposed to be going away but did not go. She remembered that she was looking forward to him being away. She said that at the time she and her family were at The Channon, and that her friend, Fiona, was also there.
The complainant stated she remembered that she and Fiona were playing in her bedroom and hiding in her cupboard. She said she remembered WG calling her name but they did not respond and stayed in the cupboard. She said nothing happened until after Fiona left, but she remembered WG being really angry at her.
The complainant said that after Fiona left WG took her towards another section of the creek which was "the big creek, down a steep hill", grabbed hold of her and threw her to the ground. She stated she could remember his hands around her neck and his hands tightening so that she could not breathe. She said he then let go and pulled her by the hair along the path that followed the creek and that she remembered him holding her down with one of his knees on her chest. She said she remembered jumping ants biting her. The complainant stated that she thought WG might have been bitten as well, because he suddenly got up and went down to the creek, and put his foot in the creek.
The complainant said that when WG came out of the water he said, "Let's go", and that she followed WG up the steep hill into the shed. Once they were in there she recalled WG pulling his shorts down and at the same time telling her to "hurry up". She said she went to WG, held his penis in one of her hands, put it in her mouth, and sucked on it. She stated that after a while she thought she was doing something wrong because she had not pleased him and had not made him ejaculate. She stated that he pulled his penis out of her mouth, pulled his shorts back up and walked out of the shed and told her to follow him. She said that after that they went down to a section of the property near the creek and did some "work stuff in the garden".
[19]
(xiii) Count 21
On 24 December 2001 the complainant's grandparents, Oma and Opa, came to The Channon for Christmas. She recalled that they were there when she went to bed on Christmas Eve. She stated she remembered waking up in the morning and that her father was getting on to her bed. She said it was morning time and light.
The complainant said that WG was on top of her and forced his penis into her vagina, and kept forcing it in and out of her vagina. She said he was a lot quicker than he usually was and she remembered him being quiet as well. She was asked whether she knew whether or not he had ejaculated and she said that he had, and that she felt the same warm wet sensation.
The complainant said that after WG withdrew his penis, he got off her and picked up a towel which she said was unusual for her father, opened her bedroom door and left it open.
[20]
(xiv) Counts 22 and 23
The complainant said she recalled participating in a cross country event at a national level on 23 August 2002. She said that she was 10 years old at the time. She was shown a programme referring to that event.
The complainant said she travelled to Sydney for the event with AG, KG and WG. She said that AG also competed. The complainant said that after the opening ceremony they went back to the hotel, and KG went and got some dinner. She said she remembered WG giving her a massage on the bed and her giving him one afterwards.
The complainant said that when giving the massage WG was wearing a t-shirt and underpants, and that she was on the bed lying on her stomach. WG had one of his hands inside her underpants touching the outside of her vagina, and the other on her hip area and buttocks area, but he did not massage her for very long (Count 22).
The complainant said that when she got up she noticed WG was sitting on the bed, and he told her to give him a massage. She said that she could see his shorts were down a bit and his penis was out and that it was erect, and that she rubbed up and down WG's penis (Count 23). She said she only did it for a short time and then heard someone at the door at the front of the hotel room. She said that WG said, "Get up", and at the same time he pulled his shorts up and KG walked into the room with dinner.
She said she competed in the cross country event the next day.
The complainant said that WG gave her massages when she started to get serious about running at about the age of nine. She said she would get massages two or three times a week. She stated that her sisters also got massages. She described the way they occurred. If she or her sisters had underwear on, one of WG's hands would be underneath the underwear apparently supporting that leg, and the other hand would be massaging the hip flexor or the buttocks area, and then changing to the other side for the other leg. She said that sometimes she would be naked.
The complainant said she also massaged WG. She said that when that occurred usually he would be on his back, and that he would get her (or his other daughters) to massage his groin area, sometimes without a towel but sometimes with a towel over his groin area, depending on where they were. She stated that by "groin area" she meant his penis and the surrounding areas.
[21]
(xv) Count 24
The complainant said that on Father's Day 2002 she brought WG coffee in bed. She said that when she brought him a second coffee she thought she would do something for him for Father's Day, and she hopped up onto the bed. She said WG had no clothes on and she started to massage his groin area. She stated she remembered his penis becoming erect and that once it did, she rubbed it with her hands and then put it in her mouth and sucked on it until he ejaculated in her mouth. She said she then got off him and that he was talking to her, but the only thing she could remember him saying was "good girl". She said that was all she wanted to hear from him.
It was put to the complainant in cross-examination that when she was around ten years old, she did not take coffee into her father's bedroom. She denied this proposition.
[22]
(xvi) Count 25
Count 25 was a charge against KG.
The complainant said that during the school holidays just before starting at a new school, she recalled a conversation with KG in the complainant's bedroom. She said it was a general conversation about sex and those sorts of things, and that KG spoke about how to "turn them on", and how to use her tongue in a circular motion on the top of the penis. She said that KG, in saying "turn them on", was referring to WG. She also said that KG showed her how to do it, demonstrating with her tongue. She said that KG stuck her tongue out and showed her the circular motion as to what to do on top of a penis.
[23]
(xvii) Counts 26, 27, 28 and 29
The complainant gave evidence that she recalled the first day she attended a new school. She said she was still 10 years of age. She said that the morning of the first day of school she was at her grandparents' place and was driven up to the school for the day. She said that after school she met WG and KG in the car park and remembered that she had spilled something on her school dress, and that WG was angry with her because the dress was new and quite expensive. She said WG told her that she would be getting the shed when they got back home. She said that she knew by that, he meant back to The Channon at the end of the school week.
The complainant said she returned to The Channon on the Friday after school, whilst it was still light. She remembered she was really trying hard to avoid WG. She stated she heard him coming towards her bedroom and that she went and hid in her cupboard.
She stated that WG opened the door of the cupboard, grabbed her by the arm and pulled her out. She stated he pulled her out of the room, down the corridor, through the kitchen where she saw KG, out of the house and down to the shed. She stated he pulled her inside and pushed her to the ground at the back corner of the shed. She stated he then went and got rope which looked like the same rope he had used before, and tied her wrists together at the front of her body. She said WG then pulled her shorts and underwear off and picked up a tool. She said it was the L-shaped tool she had marked as "A". The complainant then said that WG came back over to her and forced the tool into her vagina (Count 26). She stated he forced it in and out a few times, and then picked up what seemed to be some type of nail or screw and came down between her legs. She said she felt a sharp pain towards the outside of her vagina and also felt his hand there "sort of" holding her vagina open, and that she felt him put the nail or screw inside her vagina a ripping sort of feeling when he did that (Count 27). She stated that after that, he chucked the tool onto the ground and left the shed. She said she stayed in the shed with her hands still tied together.
A drawing of the tool used for Count 27, labelled "D", was admitted into evidence as Exhibit 10.
The complainant said she remained in the shed overnight. She said that WG came back not long after it had gotten light, pulled his shorts down and leant over so that his penis was near her face. She stated that usually she would do what he wanted straight away without hesitation, but that she was exhausted and could not. She remembered WG saying "suck on it" and that she just turned her head away. She said WG got angry and grabbed her by the shirt and upper arm, and she got to her knees and held WG's penis. She said her hands were still tied together and she grabbed the penis and put it in her mouth (Count 28). She stated she felt like she was not doing it right, but felt that she could not do anything right at that point. She remembered WG saying she was hopeless. The complainant said WG did not ejaculate on that occasion.
[24]
(xviii) Count 30
This count relates to an incident in mid-August 2003 when the complainant was 11 years old. The complainant said she recalled competing in the District Championships at Griffith University. She produced a certificate showing her participation. She said she felt under pressure because there was a record that WG wanted her to beat.
She stated that she recalled the night before the event being in WG and KG's bedroom and getting a massage from WG. She said that WG told her to go into the bathroom with him and she had a shower with him. He washed her with soap and then told her to suck on his penis, which she did. She stated that she got on her knees and put his penis in her mouth until he ejaculated. WG was not charged with this incident.
The complainant stated that the massage was the same sort of massage that she described earlier.
The complainant stated that she won the race and broke the record, but that WG was not happy, because she was very nervous as there was a lot of pressure on her and kept looking over her shoulder during the race. She recalled that after the race when she was cooling down WG was angry because of this. She said that WG stated that it reflected badly on him as a coach, and that he mentioned the shed as well, but she could not remember exactly what he said.
The complainant said she remembered going back to The Channon at the end of the week following the race. She said that after she went to bed, WG came into her room and shook her, telling her to be quiet and to come with him. She said she got out of bed and followed WG into the kitchen, where he got a torch from the pantry. She said she followed WG out of the house and that when they got outside he turned the torch on.
The complainant said that she and WG went to the shed and that WG told her not to try and get out. She stated that WG left the shed, shutting and locking the door, and that she went and sat in the corner of the shed at the back. She said she remembered being scared, but not ridiculously scared because WG had not done anything to her so it was not as bad as other times.
The complainant said that the following morning WG returned to the shed wearing the same pants he had on the night before, "the reddish, orange pair". She said that he came over to her and she got onto her knees, and he pulled his pants down. She remembered him not having any jocks underneath them. She stated he held his penis and she remembered she rubbed it until it became erect and then put it in her mouth. She said that she sucked on it, but he did not ejaculate. She remembered him saying, "That's enough" not very long after, and that he pulled his penis out of her mouth and pulled his pants back up. She said she followed WG back to the house, although she remembered they went the long way back as she had bare feet. It was this incident which was the subject of Count 30.
[25]
(xix) Count 31
Count 31 relates to an incident which is alleged to have occurred around Christmas 2003. The complainant recalled that it occurred on 23 December, because it was the night before Christmas Eve which was the day that the family would often celebrate Christmas in the German tradition.
The complainant said that she had gone to bed, and remembered that she woke up when it was dark to WG getting on top of her and pushing his penis into her vagina. She said she remembered it hurting quite a bit, especially in her lower stomach. She stated that she had a lot of pain in her lower stomach but that he kept pushing his penis in and out and that the more he did it the more it hurt. After a while, she felt him ejaculate inside her and he pulled his penis out and left the bedroom.
She remembered that when she woke the following morning she was in a lot of pain and saw that she had blood on her sheets, but she knew the family was going somewhere so she just left them there and did not do anything about them.
She said that thereafter the family went to her grandmother's place, but that she was still in a lot of pain and was finding it hard not to show that. She said that when she had gone to bed, WG came in and told her to toughen up and stop making such a big scene in front of everybody.
In cross-examination by counsel for WG, the complainant said that she could not remember how she performed in races in January after that incident.
[26]
(xx) Count 32
The complainant gave evidence that in January 2004 she did a "hills session" with her two sisters, and with WG coaching them. The complainant said she was falling behind her sisters. On the way back from the session, WG called her weak and said that she was not strong enough to push through the barrier.
The complainant stated that when she got out of the car after arriving home, WG ripped her joggers out of her hand, pulled her to the ground and dragged her up to the top part of the property near the driveway and down towards the creek. She said she remembered her sisters getting out of the car but could not remember where they went.
The complainant said that WG dragged her down to the creek, and that when they got to a ledge part he pushed her off it. She said she remembered landing on her bottom and feeling a horrible pain in her lower back. She said she could not get up and that WG said to her, "Get up, you sook", but that she could not. She said that WG grabbed her by the hair and dragged her down the rest of the rocks into the water. She said that he pulled her into the water, and that he came in as well, and stuck her head under the water and held it there. She said he did that a few times and then pulled her out of the water onto the dry rocks.
The complainant said she recalled being in a lot of pain and WG saying to her that she was not strong, and that she was weak just like her mother. She said WG started walking up the rocks and she managed to get up and follow him. She said she was in so much pain that she vomited on the ground.
The complainant said that WG then grabbed her by the arm and pulled her down the path to the shed. She said he pushed her in and dragged her to the back corner of the shed. She said she could not sit on her bottom properly, because of the pain, and that WG tied her wrists in front of her body and pulled his shorts down. She said she managed to get on her knees and hold WG's penis and sucked it until he ejaculated in her mouth. She then said he pulled his penis out of her mouth, pulled his shorts back up and left the shed. She said she stayed in the shed that night, and that the next day when it was light WG came back to the shed. She said she could remember being in a lot of pain and her knees being grazed and also hurting a lot. She said WG came in and untied her and she went back to the house with him. She said he told her to go and clean herself up and then come and have some breakfast. The complainant said that she did not see anyone else from her family at that point. She said that when she was in the kitchen having something to eat she recalled KG coming back, who she said must have noticed that her knees were grazed. She said she went to say something but WG said that she had just tripped over. She recalled that for the next few days she was in a lot of pain and not able to train properly.
[27]
(xxi) Counts 33 and 34
The complainant gave evidence that she recalled participating in the National Track and Field Championships between 28 November 2004 and 1 December 2004. At that point she was in Year 7. She said she flew down to Adelaide to compete in the championships and competed in the 800 metres, but ended up collapsing close to the finish. She said she spoke to WG on the phone and that he told her to get up because there was nothing wrong with her.
The complainant said that after the championships she flew back to the Gold Coast and after a few days went back down to The Channon. She said she remembered that when she got back to The Channon it was still light and she unpacked and had dinner. She said that after she went to bed, her father came into her room and up to her bed, lifted up her nightie, spread her legs and forced his penis into her vagina (Count 33). She said she felt him ejaculate inside her.
She said that after that occurred WG got off her bed and told her to go with him. She said she followed WG out of the bedroom, down the hallway and down to the shed. She stated that WG told her to go and sit down in the corner.
The complainant said that the next thing she remembered was having her legs scrunched up. She said they were already apart and she could feel something being forced into her vagina. She said she remembered feeling a "ripping sort of feeling" and that WG kept forcing the implement in and out a number of times (Count 34). She recalled he then took it out and hit her with something. She said she remembered him hitting her on her right shoulder and her right upper arm and then across her head, and that the next thing she could remember was waking up and it being light. She then gave the following evidence:
"Q. Did you notice blood anywhere else?
A. When I woke up I could see that I'd been bleeding in between my legs, there was some blood on the ground. After it had been light for a bit, Dad came back in and he told me to go clean myself up in the creek and I remember him telling me to make sure to scrub my hair, so I left the shed and I went down towards the creek and I washed myself and noticed I had blood in my hair. Dad also in the shed told me to go after that, to go back up to the house after that and to have something to eat, which is what I did."
[28]
(xxii) Counts 35, 36, 37, 38, 39 and 40
Counts 35, 36 and 39 were alleged offences by WG, while Counts 37, 38 and 40 were alleged offences by KG.
The incident giving rise to these offences was said to have occurred in December 2004 at The Channon. The complainant said that she was in her parent's bedroom with them. She said her parents were not wearing any clothes. She said that WG was lying on the bed on his side and KG was on her side, and that she was on top of WG's legs. She said she could not remember WG saying anything, but she remembered putting his penis into her mouth and sucking it until he told her to stop (Count 35).
The complainant then said she got off him and that she remembered WG telling her to touch KG. She recalled that he said, "Touch her down there" (Count 36). The complainant said she did what WG told her to do. She faced KG and used her right hand to touch and rub the outside of KG's vagina (Count 37). The complainant said that KG was laughing. She said she could smell alcohol on KG's breath. The complainant said she stopped rubbing KG when WG grabbed her left shoulder and pulled her back down. She said that WG told her to lie back down, pull her legs up and to separate them, and that when she did that KG turned and she felt KG touching her vagina. She said she felt KG's fingers go inside her vagina and felt them moving in and out of her vagina (Count 38).
After that had occurred, WG told the complainant it was her turn to use her mouth (Count 39). She knew he was referring to KG's vagina. She said she was feeling really sick and did not want to do it but that she was terrified of what WG might do if she did not.
The complainant said she moved over to her mother, separated her legs and lay between her legs. She said she put her mouth on KG's vagina and used her tongue (Count 40). She said she felt instantly sick and thought she was going to vomit, so she pulled away from KG and then vomited over the side of the bed. She said that WG was really angry and said that she had to clean it up, that she was disgusting, and that she had to eat it.
The complainant said that KG was just lying there. She did not remember her saying anything or doing anything. She said that when she put her mouth near her vomit and started to eat it she vomited again. She remembered WG telling her to get out and go to bed.
[29]
(xxiii) Counts 41, 42 and 43
The complainant said she recalled competing in Queensland in a 3,000 metre race the day before she turned 13. She said she won the race, but that WG was not happy because she had not run a personal best time. She said she had another race coming up, and that WG said to her that if she did not run a personal best in that race, she would be going to the shed when she got home.
The complainant said that the next race was a 3,000 metre race held in Brisbane. She said that during the race she pulled out of it because she had begun to panic and was thinking of what WG would do to her if she did not run a personal best time.
The complainant said that after the race had finished, WG took her away from the track, hit her across the face and pushed her to the ground. She said he told her that if she ever embarrassed him like that again he would stick her head under water and not let her head up for breath.
The complainant said that the next day she and WG travelled back to The Channon together. She stated that just before they got back, WG said to her, "You know what you have to do when we get back". She said she knew that meant she had to go to the shed.
The complainant said that when she got back home she went to the shed by herself and sat down in the corner. She said it was night-time. She said she recalled WG coming to the shed and picking up something when he came into it. She said she recalled WG grabbing her by the arms so they were in front of her body and tying something around her wrists. She said she then remembered him saying, "Suck on my penis". She said she got up on her knees straight away and reached out to find WG's penis and held it. She said it was not erect so she used her tongue on top of it, and that once it was hard she sucked on it until WG ejaculated in her mouth (Count 41).
After that, the complainant remembered WG taking his penis out of her mouth and pushing her so that she fell back and hit the back of the shed. She said she then remembered WG separating her legs and trying to force something into her vagina. She said WG realised that she still had her running shorts on and ripped them off and that she then felt something being forced into her vagina (Count 42). She said she felt a ripping pain when he was doing it. She said he forced it in a couple of times, then took it out and left the shed, and that she remembered something hitting the shed ground as he left.
[30]
(xxiv) Counts 44 and 45
The complainant said that in 2005 she was living during the week at Burleigh Heads. She said that it was approximately a one hour and a half hour drive from there back to The Channon. She said that the family would usually come back to The Channon on the Friday night or afternoon after school and return to Burleigh Heads on Sunday night or Monday morning.
The complainant said that in 2006 she left school and was schooled at home.
The complainant said that she recalled in early September 2005 returning to The Channon on a Friday evening and her father being angry because of an upcoming event. She said he was angry because she had not qualified for something that was described as a "PB Meet", because she had not done the qualifying time she was supposed to do.
The complainant said it was very late when she returned to The Channon and that KG told her to go straight to bed. She said she went to bed and woke up to WG taking off her boxer shorts. She said he separated her legs and forced his penis into her vagina (Count 44). She said that after a while she felt him ejaculate.
The complainant said she felt disgusting but that nothing else happened that night. However, she said that a bit later the next day, she was at home and KG and CG had gone to get groceries. She remembered WG sending AG out into the garden and JG following AG out, and that she was left in the lounge room with WG. She said he grabbed her by the arm and pulled her out of the house and down to the shed.
The complainant said that WG pushed her to the back corner of the shed and picked up another tool she had not seen before. She said that it had one long end and two ends that came up, sort of shaped like a "U". She said that WG came over to her and pulled off her tracksuit pants and underwear so that she was lying on the ground in the shed. She recalled that WG picked up the tool and forced one of the ends into her vagina (Count 45). She said she felt a very painful ripping sensation, with pain to her lower stomach and her vagina. She said he kept pushing it in and out, and that after a while he hit her with it across her head. She said that after WG did that, he told her to go and find AG in the garden to help her. She stated that she remembered going to the toilet later that day and that she had blood on her underwear. She identified a drawing she had made of the tool.
[31]
(xxv) Counts 46 and 47
The complainant said that in late November to early December 2005 she travelled with WG and AG to Melbourne for the Pacific School Games. She identified a photograph taken of her whilst she was at the games.
The complainant said that she was not very well at the time and only competed in the relays.
The complainant said she travelled back to The Channon with WG and AG in a car.
The complainant said that on the way back they stopped at a caravan park at a place called Marlo where her grandparents used to live. She said they stayed the night in a cabin. She said that whilst in the cabin WG asked her and AG to give him a massage. She said that WG had a towel over his groin area and got them to massage his lower stomach area, and that WG then asked her to massage lower, so she massaged around his penis and on his penis. She remembered AG saying that she did not want to be doing it. She stated that was all that happened.
The complainant said that the following day they continued travelling and stopped in a hotel north of Newcastle. She said that whilst they were in the hotel room WG first gave AG a massage and then gave her a massage. She said that she was on her stomach in her underwear and t-shirt, and that he had his hand under her underwear touching the outside of her vagina, and had his other hand massaging her hip, and then did the same on the other leg, changing hands (Count 46).
The complainant said she recalled arriving back at The Channon at night-time, and that she then had dinner and went to bed. She said she woke up to her bedroom door being shut. She knew it was her father. She said she remembered WG walking over to her bed, lifting up the t-shirt she was wearing and touching and rubbing the outside of her vagina. She said he then separated her legs and forced his penis into her vagina (Count 47). She said she felt him ejaculating inside her. She said he then left, leaving the bedroom door open.
In cross-examination, the complainant agreed that it was possible that she competed in individual events at the Pacific School Games but did not finish those events.
She agreed that whilst the Pacific School Games were being held between 28 November and 4 December 2005, she stayed in Melbourne in an apartment owned or occupied by Nicole Du Plesses.
[32]
(xxvi) Count 48
This count, which involved a charge against KG, related to an incident shortly before the events the subject of Counts 53 and 54 (see [195] below).
The complainant said that sometime after Christmas 2005 and before she turned 14 on 10 February 2006, she had a conversation with her mother in her bedroom. She said there was no-one else in the room, although the rest of the family except for AG were at home.
She said that during the course of the conversation, KG said to her that WG did everything "for us girls" and that he was a good father. The complainant remembered that she asked, "Is that why dad does these things to me, to toughen me up?" and that KG replied, "Dad has his reasons". She said KG also said to her that she had to listen to her father and that she (KG) did not want anything to happen to her. She also said that during the conversation, KG asked the complainant if she made the penis "hard" by using her tongue on the top. She said that KG then explained a different way to use her tongue by rotating her tongue around the penis.
[33]
(xxvii) Counts 49, 50, 51 and 52
The complainant said she recalled in early 2006 during the school holidays living at The Channon, and attending a "PB Meet" on the Gold Coast. She said she travelled back to The Channon after that meeting. She said she remembered going to bed and that she woke up feeling something on her vagina. She said she could not really see clearly, but she knew there was a head between her legs and that it was her father. She said she could feel his mouth on her vagina and his tongue moving around (Count 49).
The complainant recalled that WG stopped all of a sudden and pulled her out of the bed onto the ground. She said they went to the shed and when they got to the shed door he pushed her inside. She said he came in and pushed her towards the back of the shed. She said she remembered landing on her elbow and WG coming up to her and taking her nightie off over her head. She said he kept saying that she was a bad girl for not shaving her vagina.
The complainant said that after that, she saw him pick something up and that he came over to her and pushed her legs apart. She then felt WG forcing something up into her vagina (Count 50). She said she did not know what it was, but that he kept forcing it up and it hurt her a lot. She said he then pulled it out and left the shed.
The complainant said she stayed in the shed for the whole night and that WG came back when it was light. She said that when he came back he had another tool in his hand.
The complainant said that when WG came into the shed he separated her legs and used the tool she had not seen before, trying to force it into her vagina. She said it was some sort of spanner but that it had a different head on it. She said that this went on for a while, and she remembered he pulled it back out which really hurt her as well (Count 51).
The complainant said that after that occurred, WG pulled his shorts down and said, "Suck on my penis now". She remembered she put his penis in her mouth and started to move her head back and forth. She said WG grabbed her head and moved it so that his penis was going in and out of her mouth faster. She said he ejaculated into her mouth (Count 52).
The complainant said that after that occurred, WG went and got the rope he had used before and tied her wrists together at the front of her body. She said he then left. She said she was bleeding and had really bad throbbing pains in her stomach and in her vagina. After that she gave the following evidence:
"Q. And after your father had left and you remained, what did you do?
A. I stayed in there and I remember later on that there was some blood on the ground and I remember thinking at that point I just felt like I was going to die, I felt like I wasn't going to get out of there. I was absolutely terrified and I remember I got some of the blood and I tried to write something on a piece of wood but there wasn't enough so I remember I got up and I went to the front of the shed and found like a - I'm not quite sure what it was, like a nail or something, and I went down to this piece of wood that was down the bottom of the shed and I engraved some stuff in there. I still had my hands - my wrists tied together but I was still able to use my hands.
Q. Do you remember what you wrote on the wood with the nail?
A. Yes, I do.
Q. Can you tell us what you wrote?
A. I wrote, 'I'm trapped. Mum is coming. Dad and wee'.
Q. Did you write all those things? I'm sorry?
A. And I kept going over and over it again.
Q. And why were you doing that?
A. Because I was terrified, I was lonely and I thought I was going to die and they were the things that scared me the most, was being trapped, dad, but I kept always, every time I was in the shed I'd always tell myself that mum was coming down to get me."
[34]
(xxviii) Counts 53 and 54
The complainant turned 14 on 10 February 2006. She said she recalled the Queensland Under 20 and Under 23 Championships which occurred on 25 and 26 February 2006.
The complainant said she recalled that prior to these championships but after she had turned 14, she was out with WG weeding in the garden at The Channon. She said she pulled something out that she was not meant to pull out, and that WG called her hopeless and dragged her down to the shed. She said WG dragged her into the back corner of the shed and pulled his shorts down. She said she knew what he wanted her to do, so she got on her knees and held his penis with her hands, used her tongue on the top of his penis until it became erect and then put it in her mouth. She said WG kept saying she was not doing it right. She used her tongue while his penis was in her mouth "similar to something mum taught me" in a circular motion (Count 53).
The complainant said WG got really angry. He pulled his penis out of her mouth and hit the right side of her face. The complainant said she remembered that he pinned her against the back wall of the shed and kept tightening his hands around her neck. She said he eventually let go, and she remembered that he went over to the front of the shed, picked up a tool and came back over to her. She said it was the brown coloured tool that looked like a broken handsaw with a long piece and two shorter pieces. She identified it as the tool she had drawn which was marked "G".
The complainant said that WG then came over to her and pulled her shorts and underwear off. She said she remembered him squatting between her legs and forcing the tool into her vagina (Count 54). She said when he removed it he hit her across the left side of her head with it, and she felt a stinging and then a throbbing sort of pain.
WG then told her to put her clothes back on and to follow him, which she did. She said he swung his hand and hit her across the left side of her face. She said he then grabbed her hair, pulled her to the ground and pulled her along the ground into the back of the garage.
The complainant said that WG then emptied a box in which he kept his diving equipment and told her to get into the box. She said she eventually got in and sat in there with her legs scrunched up, and that WG grabbed her and pushed her to her side so that she was scrunched up inside the box and could not move.
[35]
(xxix) Counts 55, 56 and 57
The complainant recalled competing in an athletics event called the "Down Under Meet" in July 2006.
She said that after the meet she travelled back to The Channon. She recalled it was a Friday night. She said she recalled going to bed and waking up because her father came in. She said he pulled her blankets back and got on top of her and put his head between her legs. She said she felt his mouth on her vagina just for a short time (Count 55). She said he then moved so he was on top of her and forced his penis into her vagina (Count 56). She said he then stopped and came further up and that she could feel his penis near her mouth. She said she put her mouth around his penis and kept it open and that his penis was going in and out (Count 57). She said he ejaculated inside her mouth and took his penis out and got off her.
WG then told her to come with him. She said they went to the shed and that WG told her to sit in the back corner. She said that WG then went and got the barbed wire and the rope, and tied her wrists together at the front of her body and then attached the barbed wire in front of her body. She said she stayed where he put the barbed wire across her, and she remembered that she fell asleep, because she woke up and it was light. She remembered seeing that she had some blood where the barbed wire had dug into her arms and legs. She said her father came down after it was light, took the barbed wire away and untied her, and told her to go and get some training gear on because they were going to do a Saturday hills session.
[36]
(xxx) Counts 58 and 59
The complainant recalled participating in the School Cross Country Championships in Hobart in August 2006. She said that within the next few days after competing she returned to The Channon.
She recalled working in the garden with WG, cleaning some lantana. WG was working using a chainsaw and cutting down thicker parts. She said that all of a sudden he yelled at her, saying he was sick of her. She said that he came up to her and started kicking her legs, and that she started to fall over and he kicked her back. She said that he put the chainsaw close to her neck and then took it away, and then grabbed her by the arms and dragged her along the ground, over the little creek and down to a section near the bigger creek.
She stated that when she and WG got to that section near the creek there was some barbed wire wrapped around a tree. She said that WG lifted it up and dragged her underneath it. She said that the barbed wire got caught in her clothes and that she was bitten by jumping ants. She said that after a little bit, WG lifted the barbed wire up and pulled her out. She remembered that she was crying because of the pain. She said that WG dragged her into the water and pushed her head under, and he pulled it out and pushed it back under quite a few times.
The complainant said she then followed WG into the shed. She said that he ripped her shoes, pants and underwear off, and came back holding the broken handsaw tool marked "G". She said she felt him force it into her vagina several times (Count 58). She said, "I could feel the other side of it going up over my stomach". She said he then took that tool out and came back with something else that she did not recognise, which she said was something like a long nail with a loop on top of it. She said that he started jabbing her with it in between her legs on the outside of her vagina, and that she then felt it being jabbed inside her vagina and one jab near her bottom area (Count 59). She said that WG stopped doing that and chucked her back her stuff, "like underwear and pants and that", and she put them back on and went out into the garden and kept working.
The complainant recalled that at that time in the garden WG told her to "never hold - hold him back again, otherwise he'd kill me", and that he also said "that he can do whatever he wants to me".
[37]
(xxxi) Counts 60, 61 and 62
The complainant recalled that a few days after she buried the tools, WG told her to go with him and she followed him down to the shed. She said he told her to sit in the corner which she did. She said he was at the front of the shed looking at the tools, and she remembered him saying, "Where are they? What have you done with them?" She said she lied to him and said that she did not do anything with them. She said he then threatened her, and she remembered him saying that if she was to tell anybody about what happened down there he would kill her. She remembered him also saying that it was no-one else's business and that he could do what he wanted to her and that he owned her. She said he started to tell her ways that he would kill her if she was to tell anyone, saying that he would leave her locked up in the shed and let her rot. She said she also remembered him saying that he would take her out to the cave, dig a hole and bury her alive.
The complainant said she was terrified and believed everything that he said. She believed that he was referring to a cave in the Nightcap National Park.
The complainant said that WG left the shed but told her to stay there. She said he came back not long after with two things in his right hand. She said one of them looked like it was plastic, like a handle of something broken off. She said the other was a screwdriver that had black and yellow stripes up the handle.
The complainant said that WG took off her tracksuit pants and underwear, pulled her legs apart and picked up the broken handle, forcing it into her vagina (Count 60). She said she experienced an aching sort of pain. She said that he took it out, grabbed her legs and pulled them so that she was on her back. She then felt him try to force the handle into her bottom, and he forced it in and out of her bottom a few times (Count 61). She said he then took it out and picked up the screwdriver, which she felt go into her vagina. She said he forced it in and out a few times, and then chucked her undies and pants to her, and told her to go back to the house, get some garden clothes on and go into the garden.
The complainant said that when she made her statement to the police she drew these two tools. The one with the handle was labelled as "I" and the screwdriver as "J". The drawings were tendered and admitted as Exhibit 21.
[38]
(xxxii) Count 63
The complainant said she recalled competing in the Telstra All Schools National Championships in Sydney in late November or early December 2006. She said she competed in a few events, but that she pulled out of the 3,000 metres. She said she was winning the race, but people started to overtake her and she started to panic. She recalled her father yelling out, "What are you doing? You're weak, you've got no guts". She said that after the event she walked back with KG, CG and AG to the hotel where they were staying. WG was already back there. She remembered that WG was angry but could not remember what he said. She said that a bit later she had a shower, and then KG, CG and AG went out to get some dinner and WG and the complainant were alone in the hotel. She remembered that WG grabbed her and pushed her onto the bed. She remembered that one of her legs was hanging off the end of the bed and that WG was over the top of her with his hands around her neck. She gave evidence that WG got off her, pulled her tracksuit pants off, took his shorts and underpants off and pulled her legs apart. She said he then got on top of her and forced his penis into her vagina. She felt him ejaculate inside her.
The complainant then gave evidence that she had located her 2006 diary. She identified a number of entries in it. Of some relevance to the proceedings is an entry which said "Hold breath longer", which the complainant said she wrote because when WG held her head under the creek, she would sometimes in her spare time practice holding her breath so she could hold it longer for him, so that WG thought she was tougher. Other entries include an entry which said, "Massage dad", which she said would have been a reminder to massage dad, an entry on 2 January which said, "Tell Dad got period. Do not forget", and an entry which said, "Start plan for tunnel", which she said referred to an unrealistic idea she came up with, which was building a tunnel out of the shed so she could escape. The complainant also referred to an entry on 25 January which said, "Tolls. He didn't wee" with a sad face. She said she assumed that was meant to be "tools", and that she could not specifically remember the entry but that she knew that what it was referring to was that she did not make WG ejaculate.
The complainant also referred to an entry on 11 February which said, "Spent night in shed" and "Bad race" with a sad face next to it and an entry which said, "but serves you right".
[39]
(xxxiii) Count 64
The complainant recalled competing in Hobart on 9 February 2007. She said that she injured herself in the warm-up and did not do very well in the race. The complainant identified a photograph showing her competing in the race. After the race her ankle was X-rayed at a Tasmanian hospital but there was no break. She said she spoke to her father after the race and that he was pretty angry and said there were no excuses. She said he threatened that she would be getting the shed and no food when they got home. She said she was terrified because she had been there before and because "being away from mum and dad made it even scarier".
The complainant said that a few days later she caught a flight from Hobart to Melbourne to make a connection to Brisbane. She said she spoke to WG on the phone in Melbourne and that he was still really disappointed. She said she remembered being really scared and frightened to go home, and that before getting on the plane she had an anxiety attack and they would not let her on the plane. She said she saw a doctor and settled down quite a bit, but that when she went to get onto the plane again she had an even worse anxiety attack and was taken by ambulance to the Children's Hospital in Melbourne.
The next day she was taken back to the airport, and after talking to WG and KG on the phone, she said she calmed down and managed to get on the plane and fly to Brisbane. She said that WG was acting really nice to her in the phone conversation, which she described as strange.
The complainant said that she had another anxiety attack as the plane was getting close to Brisbane and that she was taken to Brisbane Hospital which cleared her, and that she travelled back to The Channon with KG and her younger brother.
The complainant said that the next time she saw her father was the next morning when he pulled her out of her bed. She said he told her to get up and follow him, and that she followed him down to the creek. She said WG pushed her into the water, and then got in and grabbed her head and held it under the water, and kept pulling it out and pushing it back under several times. She said she then followed him to the shed. She said he pushed her in and that she went and sat at the back of the shed.
The complainant said that WG then picked up the black plastic handle that looked like a broken handle which she had labelled as "I", and then the nail she had labelled as "D". The complainant said that WG separated her legs and put the handle through her boxer shorts, forcing it into her vagina. She said he forced it in and out several times and then told her to go back to the house.
[40]
(xxxiv) Count 65
The complainant recalled attending a World Youth Camp at the Australian Institute of Sport in Canberra in late April or early May 2007.
She said that during a track session with other athletes she had a really sore left rib and was struggling during the session, and that some of the coaches, Nicky Frey and Sarah, told her to finish up, but that she told them she had to keep going.
She said that neither of her parents was in Canberra, only the other World Youth qualifiers.
The complainant said she spoke to WG on the phone and that he was not happy with her times. She said she remembered him calling her weak and that she was really upset.
The complainant said she did not want to go home, and thought that if she hurt herself, someone might notice and that they would not let her go home. She said she whacked her head three times on an edge in the bathroom. She said there was a lump on her head and that she got her necklace and scratched it to make it bleed. However, when her roommate asked her what had happened, she lied and said she fell over. She said her roommate took her to Nicky and Sarah's room and that she lied to them again. She also said she told the same lie to her father.
She said she returned to the Gold Coast and was told by WG that she had to reassure Sarah that she was okay to be on the team for the World Youth Championships. She remembered that after she returned to The Channon she went to bed and WG woke her up and told her to get up. She said that WG took her to the garage, let go of her and told her to take her nightie off. He told her to get in the box, and put the lid down. The complainant said that the next thing she remembered was light coming through the holes in the box, and that not long after, the lid opened and WG grabbed her by the arm and pulled her down to the shed. She said she felt dreadful after she got out of the box.
The complainant said that when they got to the shed WG pushed her towards the back, picked up the rope and came over to where she was sitting naked with her legs scrunched up, and tied her wrists together at the front of her body. He then went to the front of the shed, picked up some tools and came back to her. She identified the tools as the tool with the broken handle and a spanner.
The complainant said she remembered WG forcing the broken handle into her vagina. He hit her across the head with the spanner just above her ear. The complainant said that WG left the shed but came back shortly after with a machete in his hand. She said he came over to her and leant down and that he had the machete against her neck. She said she could feel it touching her skin, and she remembered him saying that if she ever told anybody what happened down here he would kill her. He said it was no-one else's business and that he owned her.
[41]
(xxv) Count 66
The complainant said that in May 2007, before WG left to go to Papua New Guinea, she remembered being in bed and WG coming over to her bed. She said it was dark but that she could see it was him. She said he came over to her bed and took her pyjama pants off. She said she then felt him get on top of her, separate her legs and force his penis into her vagina. She said he ejaculated inside her, got off her and left her bedroom.
[42]
(xxvi) Count 67
This is a count against KG. The complainant said that WG was in Papua New Guinea for three to four weeks in late May and early June 2007. She recalled an evening when she was at The Channon and JG and CG had gone to bed. She said she remembered walking around and waiting for KG to go to bed to keep an eye on her because KG had been drinking. She remembered that KG had fallen asleep on the couch.
The complainant said she took KG's wine glass from her, emptied it, woke her up and helped her to her bedroom. She said that KG asked her if she could sleep with her, and she was fine with that. She said she cuddled up to KG and put her left arm around her, and that KG touched the outside of her vagina and rubbed the outside of it until she thought KG was falling asleep. The complainant said she then moved away from KG and fell asleep as well.
[43]
(xxxvii) Counts 68 , 69 and 70
Whilst WG was in Papua New Guinea, the complainant broke her wrist whilst riding a skateboard. After WG returned, the complainant competed in a race on the Gold Coast. She recalled that WG wanted her to compete because that was where the athletes for the World Youth Championships were having a camp. She competed whilst her wrist was still broken and in plaster, but according to WG, she did not do very well. She stated that WG was angry because she had broken her arm while he was away and he thought she would have performed better if she did not have a broken arm.
After she and her father returned to The Channon after the race, the complainant said she had gone to bed and that WG came in, pulled her blankets and pyjama pants off, got on top of her and pushed his penis into her vagina (Count 68). She said he then moved further up and she felt his penis in her mouth (Count 69).
The complainant said that after a while she remembered WG sighing and getting off the bed and telling her to follow him. She said she followed him out of the house and down to the shed. She said that at the shed, WG grabbed her by the pyjama top and pushed her to the ground in the shed, and that the next thing she remembered was something being wrapped around her neck. She said she had a feeling it was rope but that she could not see because it was dark. She said WG kept tightening it and that she kept saying she was sorry that she did not make him wee. She said that after that he left the shed and she stayed there the whole night. The complainant said when WG returned she still had the rope around her neck. She could see by that time that it was rope, but she was too scared to take it off as she did not want to get into any more trouble. The complainant said that when WG returned he told her that he had to teach her a lesson. She said he told her to get on her knees and to open her mouth. She said he pulled his penis out of the top of his shorts and held it with one of his hands, and put his penis into her mouth (Count 70). She said she felt liquid weeing in her mouth and he told her, "See how it tastes different?" She said it was "actual wee".
The complainant then gave this evidence:
"He stopped and took his penis out of my mouth and put it back in his shorts, and I didn't want to swallow it and I remember him telling me to go back up to the house and to put some pants on because I still had my pants off because I'd left them off when I left the room with him the night before. I left the shed and dad went in a different direction and I went up, back up towards the house and when I knew he wasn't near me, I spat it out, the wee out of my mouth and I remember going, heading back up towards the house and I remember seeing mum and [CG] in the lounge area and I didn't want them to see me with no pants on, so I went back up the long way around to my bedroom."
[44]
(xxxviii) Counts 71 and 72
On 10 February 2008 the complainant turned 16. At the time she was at school at Palm Beach Currumbin. She said that during the school holidays, she was at home with WG, KG and JG. She said on one occasion she remembered being in bed and hearing WG come into her room. She said she felt WG touch the outside of her vagina and then get on top of her and push his penis into her vagina (Count 71). She said she did not want it to happen but she felt him ejaculate inside her.
The complainant said that after that, he got off her and whispered, "Come with me". She said she left her bedroom and walked with him down to the shed. She said she automatically went in and sat down against the firewood.
She said that WG came in and that he had a torch. She said she remembered him picking stuff up and then coming close to her, and she could see he was holding one of the tools that he had used on her before. She said WG told her to lie down and separate her legs and she felt something being forced into her vagina (Count 72). She said she remembered having really severe pain in her lower stomach. She said that he did that a fair few times and then took it out and told her to go up to the house.
The following morning she noticed a lot of blood on her sheets and was feeling very sick. She said she went to Yamba to stay with her friend, Max Pye. She said she eventually went home to The Channon, but she remembered still being in a lot of pain and that KG told her to go to bed early.
She said the following morning she was probably a bit worse. KG told her she would drop her off at a doctor at Dunoon on the way to Lismore, but that she would have to wait there until KG finished coaching in Lismore.
When she saw a doctor, the doctor told her that she needed to go to hospital straight away because the doctor thought she had appendicitis. The complainant said she called KG and told her, and that KG told her she did not need to go to hospital. KG told her she could not pick her up. There was a person called Doug Connors whose kids were trained by KG, and KG told the complainant she could get him to pick her up and wait at his house so she could pick her up from his house and take her to the hospital.
The complainant said that Mr Connors picked her up, but that after a while he realised she was not very well and took her to the hospital himself. Her appendix was removed but subsequently she was told there was nothing wrong with it.
[45]
(xxxix) Count 73
This count is against KG.
The complainant stated that in mid-January 2009 when she was 16 years of age, and whilst her father was in Papua New Guinea, she remembered being at The Channon and that CG and the complainant stayed up with KG in the lounge room. She said she remembered CG started talking about pleasuring herself and that KG started talking about it as well. She said she got up and left to go to bed because she did not like talking about that sort of stuff.
The complainant said she stayed awake and that she remembered CG going to bed but that she could not hear KG going to bed. She said she was worried about her and went to check on her, and that KG had fallen asleep on the couch and spilled her wine.
The complainant said that she wiped the wine off the floor and woke KG up. She said KG wanted a shower, so she helped her to the bathroom and helped her get undressed. She said KG wanted her to shower with her, and as KG was struggling to stand properly the complainant was worried about her falling over in the shower, so she helped her in the shower. The complainant said she remembered KG touching the outside of her vagina and telling her to stop but that KG refused to do so.
[46]
(xl) Counts 74 and 75
In February 2009 the complainant turned 17. She recalled that in March of that year WG returned home to The Channon from Papua New Guinea. She said she remembered going to bed and that she woke up to WG sitting on her upper legs and touching the outside of her vagina. She said she just lay there. She said WG got off her and got onto her bed and separated her legs, and that she felt him put his penis into her vagina (Count 74). Whilst he was doing this he said to her, "Come on, show me that you are enjoying this". She said that after he said this, she started to make noises like he was. The complainant said that he continued to push his penis into her vagina and then stopped and took it out, and that she felt him coming further up the bed. She said she felt his penis on her face, but that she did not want to put it in her mouth, and that he told her to suck on it. She said she had to move up the bed a bit more to put it into her mouth. She did that and then moved her head back and forth so that his penis was going in and out of her mouth (Count 75). She said she felt him ejaculate inside her mouth. She said she felt sick. She said that WG had been away for a while and that she had gotten used to things like that not happening.
The complainant said after that he took his penis out, WG told her to get up and follow him. She did that and WG got a torch and went out to the garage. She said she followed him to the garage and he told her to get into the box. She said it was a lot harder to get in but that WG pushed her right in and that she remembered being in a lot of pain. She said that WG shut the lid and that she heard him leave. She said it was still dark when he came back and got her out. She said that WG told her to go back to the house and to go back to bed, so she walked in front of him. She remembered seeing the torch light and that she could see where she was going, and that she went back to bed.
The complainant said she did not consent to the matters the subject of these charges.
[47]
(xli) Counts 76 and 77
The complainant said she recalled competing in the Down Under Meet on the Gold Coast in July 2009. She also remembered travelling back to The Channon after that meet, and said it was still light when she got back. She said she remembered going to bed and WG coming into her room and shutting the bedroom door. She said he came over to her bed, pulled her blankets back and took her pyjama pants off.
The complainant said WG then got on top of her, separated her legs and forced his penis into her vagina (Count 76). She said she remembered him ejaculating inside her vagina.
The complainant said she was very upset. She said that by that time Max Pye was her boyfriend, and that she had started to realise what was going on with WG was not right. The complainant remembered on the following day getting up and going into the kitchen. She said that KG had gone for a run, and that WG yelled out "Coffee", which meant that whoever was in the kitchen would have to bring him coffee.
The complainant said she took WG some coffee, and that when she walked in he told her to shut the bedroom door. The complainant said WG told her he needed a massage. She said she knew what to do and started to rub around his groin area and then his penis. She stated that WG's penis became erect, that he told her to put it in her mouth and that she did. She said she remembered hearing KG cough outside. She said that WG told her to get out, but that when she was getting off she saw KG walking past the bedroom outside.
She said she left the bedroom at that point.
The complainant said she did not consent to either of the acts the subject of Counts 76 and 77.
In cross examination, the complainant said that she did not remember WG having the task of first aid officer at the July 2009 Down Under Meet. She denied that she left the meet before her father and that she did not go back to The Channon with him.
She denied she went to Max Pye's house after the Down Under Meet.
She agreed that Max Pye attended the Down Under Meet.
The complainant said she did not remember an occasion when she was 16 or 17 years old when she was in her bedroom at The Channon with Max Pye. She agreed that Max came to The Channon during 2008 and 2009 for camps, but said that WG did not know about their relationship, so Max did not come to The Channon much at all. She denied that Max Pye ever came into her room at The Channon.
[48]
(xlii) Count 78
The complainant said she recalled competing at Nowra in the National Cross Country Championships in mid to late August 2009. Her father was one of the coach managers for the Queensland Athletics Team.
The complainant said that a bit after the event in which she competed, she met WG who had a minibus for the team, and she went in the minibus with him out of the venue. She recalled that WG drove for about 10 or 15 minutes, and then pulled over on the side down a dirt track. She said that during the drive WG was talking to her about her performance in the race and that he was really angry with her.
The complainant said that when WG pulled the bus over, he told her to get into the back of the bus. She said he stood in front of her and pulled his tracksuit pants down and told her to suck on his penis. She said she remembered that it was not erect, so she used her hands and rubbed it until it became erect. She said she then put it into her mouth and sucked on it, and WG ejaculated.
The complainant said that WG then told her to get into the front passenger seat. She said when she turned to go back into the front seat she felt a whack to her head and fell to the ground. She said she then got into the passenger seat and WG went back around to the front, and they drove back to the venue.
In cross-examination, the complainant agreed that she and her father flew down to Nowra, and said that as he was one of the team managers he had a minibus there. She rejected the suggestion that he did not have a minibus at all. She said that he had his minibus licence, and that he drove the athletes from where they were staying to the venue in a minibus. It was suggested to her that on the occasion that she said WG drove her away in the minibus he was in the company of other people the entire time, including Linda Brandt. She rejected this, saying she "got third" and that WG was really angry, and that after the race he managed to get away and that was when they drove away. She said that other than that, she was sure he was in the company of other people. She said that WG drove for about 10 to 15 minutes and then made her do things. She said she could not count how long it all took.
[49]
(xliii) Count 79
The complainant recalled an occasion in 2009 when she and WG stayed at her grandmother's house at Cabarita after she had competed in an athletics meeting. She stated that Cabarita was in between The Channon and the Gold Coast. She said there were three bedrooms, her grandmother's at the front of the house and the other two bedrooms at the back of the house.
The complainant said she remembered it being late and that everyone went to bed at the same time. She said her grandmother shut her bedroom door so that the dogs would not come in.
The complainant said she woke up to WG taking off her boxer shorts and underwear. She said he pushed her legs apart and got on top of her and she felt him push his penis into her vagina (Count 79). She said she felt what she thought was him ejaculating inside her.
The complainant said she did not consent to this incident.
The complainant said that later in the year she travelled overseas. She said that prior to that, she buried the L-shaped tool which was labelled "A", and the nail she had tried to get rid of earlier which was labelled "D".
The complainant said that she took these tools to the other side of the property, pretty close to where she had buried the other tools. She said that she dug a hole, put them into the hole, and put some rocks and dirt back over them. She marked on a copy of the diagram of the property where she had buried the tools. This diagram became Exhibit 26.
The complainant then gave evidence that she travelled to Doha in early December 2009 with various teammates and coaches, for the World School Games. She stated that at Doha, she was sexually assaulted by a coach she named as Rod. She said that Rod touched her and penetrated her vagina.
She said that in the days following she had a conversation with other female athletes about Rod. She said that she had not thought that what had occurred was a problem, because Rod was nice to her. However, the other athletes were all talking about the way he touched and massaged them, and how inappropriate he was, and she started to realise that the way she and WG were acting was wrong. She said, "it just started to hit me about [WG], and what he was doing to me". She said she had already had thoughts about it being wrong. She could not stop thinking about what WG had done to her all those years and how wrong it was, and she said that she just wanted to die. She said that the other athletes called Rod a paedophile.
[50]
(xliv) Counts 80 and 81
The complainant recalled being home at The Channon on 23 December 2009. She said she was in the lounge room with KG and WG. She remembered that JG was in bed and CG was in her room. She said that WG told her to do 10 chin-ups, otherwise she would be punished. She said she was able to do 10 but that he told her to do another 10, and that she could not do that many. She said that WG then told her that she was not tough enough to pull out the times she needed for her races, and then told her to go to bed.
The complainant said that she could not get to sleep and that ultimately WG came into her room. She said she pretended to be asleep, but she heard him say into one of her ears, "Get out of bed now". She said she got out of bed and WG grabbed her on her right arm, pulled her through the house into the kitchen, got the torch and pulled her down to the shed. She said that once in the shed he pulled her to the ground so that she was on the side of her body facing towards the back. The complainant said that WG put the torch down and she saw a tool, which was a spanner that had a head part that could be adjusted which she previously marked with the letter "F".
The complainant said that WG pulled her legs out, took her boxer shorts and underwear off, separated her legs and picked up the tool "F", and that she felt him force it up into her vagina (Count 80). She said she was feeling awful and just wanted to die.
The complainant said that WG then told her to suck on his penis. She said she did not respond to him and that he grabbed her hair and pulled it up towards him. She said it was really hurting, and that she did not want to be hurt anymore, so she said she was sorry, got on her knees, held his penis and sucked on it (Count 81). She said she felt him ejaculate in her mouth.
The complainant said that after that occurred, WG left the shed and told her to stay in there. She said she was terrified because by that time she knew how wrong what was happening was, but did not know what to do or how to get away from it.
The complainant then gave the following evidence:
"Q. Did you do anything as you sat there in the shed?
A. Yeah. I found a nail and I engraved 'trapped' where I had written stuff before on a piece of wood, but it was dark so I am not sure how well I wrote it on there, but I just remember that that is what I wrote on there and I remember it was the first time I started thinking of how I could get out of the shed and I went and checked to see if I could get out the door to push it open, but I couldn't, so I started looking around for things in the shed, for stuff that might help me get out because dad had some tools in there and I couldn't see very well so I was holding them up because there was lots of light coming through the wire and - the chicken wire, and I found something that like, I'd seen dad using before, not on me, just like the garden and the wire and stuff, and I took them up to the wire, I think they were pliers, and I started to cut thought the wire with them and I kept cutting through the wire for ages and I also thought that was enough for me to get out because I could push it open as well. I chucked them on the ground at the shed and I went up the firewood because of the chicken wire that wouldn't - like the window that was at the back of the shed and I pushed the wire sort of open a bit more. Then I climbed through and went. I just ran.
Q. And where did you run to?
A. I ran to over the other side which is where I went like sometimes, other times as well, was by myself and stuff, to try and get away from dad.
Q. And what did you do once you got to the other side?
A. I remember I sat down and I started thinking of ways to try and kill myself and I didn't really know how to or what to do, and I kept thinking and I remember I started thinking of mum and [JG] especially, and like, if I was to die or kill myself or not be there, that dad might start taking it out more on [JG] and I don't know, I just couldn't, couldn't deal with that and when it got light I really didn't want to, but I went back up to the house.
Q. And what happened once you returned to the house?
A. Well, I still didn't have my underwear and my boxer shorts on and I couldn't find them in the shed, so I just had my Christmas t-shirt on and I went into the door near the kitchen and I remember I could see mum and dad were in the lounge room, so I snuck past and went into my room and got some underwear on and a pair of shorts.
Q. And what happened after you did that?
A. Well, I knew that dad would come down eventually to the shed and realise I wasn't there and I thought it would be better if I went out so he could see that I wasn't in there any more and I went out into the lounge room and dad saw me and he said - asked me how I got out and said, 'How dare you' and that he'd told me that - that I had to start listening to him.
Q. Sorry, did you say where your father was?
A. In the lounge room.
Q. After he said that did you say anything?
A. No, then mum cut in and she was saying, 'Please, [WG], it's Christmas' and that she didn't want to have to do this, like arguing on Christmas, and then mum and dad started arguing and like, I just was able to walk away and I just wanted to get away from it and I just remember dad having a real go at mum and saying that us girls took after mum, took after mum and I just went down into [JG]'s room and sat with him and, yeah, it was that - so that was the 24th, so it was that day that we went up to my Oma's for Christmas."
[51]
(xlv) Count 82
The complainant recalled that in early January 2010 she heard her parents arguing in the lounge room. She said she walked in and went over to WG who "just lost it". She said he started throwing and smashing things and that KG started to get really upset, and then he hit KG across the face and head. She said she yelled at him to stop. She said that WG then turned to her, grabbed her by the hair, and pulled her out of the house and down the path to the creek. The complainant said that WG pulled her into the creek and put her head under the water for a long time. He did this a number of times and then pulled her up, back up the rocks and along the path to the shed.
The complainant said WG then threw her onto the ground, and she remembered he had his hands around her neck and started to tighten them. She said he let go after a while and got up, went to the front of the shed and came back holding a tool. She said he chucked it on the ground next to her and pulled her shorts and underwear off, separated her legs, picked up the spanner and forced it into her vagina. She said he kept forcing it in and out of her vagina and that all of a sudden he took it out and "chucked it", and went and got up and told her to get out of his sight.
The complainant said that the tool used was the one that she had marked with the letter "H". She said she did not consent to WG putting that tool in her vagina.
The complainant said she remained upset after that incident and thought of more ways of killing herself. She said her mother took her to her grandmother's place for the night, and the next day took her to the Mental Health Unit at Richmond Clinic in Lismore. She said that she turned 18 during that period while she was staying at the clinic.
The complainant said she felt safer at the clinic but was scared that she was going to be sent home. She said that a month or few months after that, she went home because KG had told her that things had changed and would be different if she came home. The complainant said that she went back for about three or four weeks
She said that after she returned home it was okay for a bit, but that after a while things started to get back to normal and WG started to get controlling again and very angry. She said that KG had told her when she left hospital that she was not allowed to go and see her counsellors and take the medication that they prescribed. She said that she needed to go and see her counsellor and managed to go and see one of them without her parents knowing.
[52]
(xlvi) Counts 83 and 84
The complainant said she made contact with her brother, JG, in January 2011. She was not in contact with her mother or father at this time.
The complainant said she arranged by text message to meet JG at the back of the swimming pool in Lismore. She said she got there by car.
The complainant recalled that she got there a little bit earlier than the meeting time and saw a green BMW, like the one that WG had bought while she was in hospital. She then saw WG at the window of her car. She said she was in the driver's seat and that he opened the door and told her to get out of the car. She said she just froze and went back to how things were at home and did exactly what WG told her to do. She said that he told her to go back to the car, pointing to the green BMW, and then told her to get in the passenger seat which she did. WG then got in the driver's seat.
The complainant said she recalled WG whacking her across the right side of her face. He started the car and drove towards the river. The complainant said they pulled up in a gravel car park and that WG said that she had to come home with him, and that she told him that she was not coming home. The complainant said that WG got out of the car, came around to the passenger seat and dragged her out onto the gravel. She said she heard another car coming and he grabbed her and pushed her back into the car and drove off from there.
The complainant said WG drove round to the baseball fields and that when they arrived there he told her to get into the back of the car. She said he also came into the back of the car, ripped her shoes, shorts and underwear off and told her to lie down. She said he lay on top of her and she felt him push his penis into her vagina (Count 83). She said he took it out after a while and told her to suck on his penis, which she did until he ejaculated in her mouth (Count 84). She said he told her to swallow it but that she was feeling so sick that she threw up. The complainant said WG got angry and whacked her across the left side of her face. She said that she told him she was sorry and promised him that she would come home.
WG drove her back to her car. She said she had an appointment with her doctor that day.
The complainant said she remembered her left shoulder was really sore as well as her face, cheekbone and temple area where WG had hit her. She said she remembered going to the doctor's appointment and the doctor admitted her into hospital. She said that within the next few days the police came and asked her what happened, and she told them that WG had whacked her. She stated that she did not tell them "straight out" about what happened behind the baseball fields.
[53]
(xlvii) Counts 85 and 86
Count 85 is a count against WG, and Count 86 is a count against KG.
The complainant said that in 2011 she was attending TAFE at Wollongbar. She said that after the incident in mid-January 2011, she did not have any more contact with her father until later in the year. She had had a telephone conversation with KG in which KG told her to drop the AVO which was out against WG as it was family business only. She said this occurred a week before the incident the subject of these counts.
The complainant recalled that in mid-October on a Thursday (because she had an appointment with her case worker) she drove to her appointment, stopping to get fuel at the Woolworths fuel station. As she was driving to the appointment she saw a Kia hatchback which she said looked a lot like her parents' car. The complainant said that after her appointment with the case worker she headed towards TAFE. She said that she messaged her boyfriend Max to let him know that she was heading back to TAFE.
The complainant said that after the appointment as she was driving back to TAFE, she saw the Kia car and she was almost certain that it was her parents' car. She said she was too scared to stop so she kept driving. She said that by the time she got to the top of Goonellabah she could not see the car. She said that she needed to get some snacks for TAFE, and there was a small petrol station so she turned and parked around the back of that.
The complainant said she grabbed her wallet and phone, but that as she turned to open the door she saw KG in the Kia car. She said that at that point she had only seen KG and she chucked her phone and wallet back down and got out of the car. When she got out, she saw WG standing around the other side of the Kia car, on the driver's side.
The complainant said that WG gestured for her to come over to him and told her to get in the back of the car. She said that she said, "What's going on?" and he told her to get in the car again, and grabbed her hair and head and forced her in.
The complainant said she remembered being face down on the back seat and that WG grabbed her arms and she felt something getting tighter around her wrists, and that she was trying to pull them away. She said WG said that she knew what happened when she did not listen to him, and that he mentioned the shed. The complainant said she realised she had to get out of there and that she promised that she would go with him.
[54]
(xlviii) Other matters
The complainant was asked when she first complained that WG had been sexually assaulting her. She said that Sergeant Leigh Hawdon was the first person she did her full statement with. She said she did that after October 2011, coming into 2012.
She said prior to that, she remembered that when she was at Falls Creek she spoke with Nicky, and she also spoke to AG when she got out of hospital.
She said she only told Nicky Frey that WG had been abusing her. She said she told AG a little more just about how WG used to come into her bedroom and that he sexually assaulted her many times.
The complainant said she could not remember specifically when she told her aunt PB about the assaults. She said she only got in touch with her after she got out of hospital and did not have any contact with her parents any more. She remembered that PB knew why she did not have any contact with WG.
The complainant said she did not tell her grandmother LA (Oma) about what her father had done when she was growing up, but she said she got in contact with her when she was out of hospital, and remembered that she was aware of things that WG had done. She said this would have happened in about 2010.
The complainant said the first person she told that her mother had done things of a sexual nature to her was her doctor. She said that was in 2011.
The complainant said she went with the police to The Channon in 2012, because they wanted her to show them places on the property where she had buried things and "where stuff had happened". A DVD of walk around footage was shown to the complainant and ultimately tendered in evidence. The complainant indicated on the recording where she had buried the tools which had been labelled "G" and "K", and another spot where she had buried other tools which she thought were "A" and "D". The complainant also identified the barbed wire that she said WG pulled her under in 2006 while he put a chainsaw to her neck.
The complainant identified a place on the DVD where the police officer had put down a marker as where "some stuff, underwear and some paper" was buried. She said she buried those things back in 2000 after WG used the tools on her for the first time.
The complainant was also shown a room with a box in it, and identified from the items in the box the black handle that WG had used on her which she had gone down to bury, but had hidden in the shed when WG came down.
[55]
Cross-examination of the complainant
I have dealt with the cross-examination of the complainant on particular counts in dealing with her evidence in respect of those counts. What is set out below is cross-examination of a more general nature.
The complainant agreed that in order to run the times she did at a young age it was necessary to train very hard. She agreed it was a dream of hers to run at the Olympics. She agreed she ran in a lot of races at the time. She said, however, that she became an elite athlete basically because she had no choice, although she agreed that she was very good. She agreed that she broke a world record in Doha, although she stated she was 10 seconds off her personal best.
The complainant agreed she participated in triathlons from time to time but said she hated water and was not a good swimmer. She said she won them however, because she would get them (the other competitors) back on the run. It was put to her that to out-race the other athletes during the swimming leg it would be a good idea to hold her breath as long as she could. She said that was not correct, and said, "It would be very scary and you'd usually have your head out of the water trying to navigate where you were going in amongst the crowd". She agreed, however, that she used to practice holding her breath down at the creek, but denied that this was to "race off" the opposition during the beginning of the swimming leg in triathlons.
Ultimately, the complainant agreed she won a lot of races over a considerable period of time.
The complainant accepted that she had a surfboard, saying she enjoyed being up on it but hated going out in the water. She also accepted she did many lengthy swims in a swimming pool, training with her mother and CG. She said there were a few years when she was young when she swam competitively.
The complainant accepted that she had a friend, Fiona Rourke, who would visit from time to time, although less often as she got older. She accepted that she and Fiona would go for a swim in the creek on occasions.
The complainant was referred to an entry in her diary on 13 November 2006 which said, "Got the box, creek and shed today. Serves you right, sad face", to which I have referred at [242] above. She agreed that it was possible that WG was overseas at that time and that he was also overseas on 17 November 2006. It should be noted that in her evidence in chief the complainant did not suggest that any assault occurred on those particular days.
[56]
Re-examination of the complainant
In re-examination, the complainant was referred to questions asked concerning her diary entries of 3, 4, 5 and 13 November 2006. She agreed that WG may have been overseas on those dates. She said she did not always write the entries on the right dates.
The complainant said that she had no present relationship with her sister CG.
[57]
PB
PB gave evidence that she was the older sister of KG. She said she used to have a close relationship with her sister but that over time they grew apart.
PB said that on Christmas Eve 2000 her parents, KG, WG, AG, the complainant, CG and JG all celebrated Christmas Eve at her house, and that WG arrived separately to the rest of the family.
PB said that on Christmas day the complainant was crying and sobbing because she was upset that KG was going somewhere else on Christmas day. She said that the complainant was going with WG, AG, CG and JG to O'Reilly's to spend Christmas day camping.
PB recalled the complainant being admitted to the Mental Health Unit at Lismore Hospital in 2010. She said that between 2000 and that time she did not have regular contact with the complainant's family.
PB said she spoke with the complainant around June 2010. The complainant told her that she used to hold her teddy bear when she had been locked in the garage and had heard the footsteps of her father. She said that in another conversation the complainant had said that she had had a "full-on sexual relationship" with her father when they were living in Burleigh.
PB said the complainant did not refer to any area other than the garage.
PB said she recalled AG saying to her that she felt she was the lucky one because WG did not go all the way with her. AG told PB that her father had broken her nose.
In cross-examination, PB stated that the complainant was no longer crying when she returned from O'Reilly's.
PB said that in conversations she had with the complainant around April 2010 she did not make any disclosures about her father.
[58]
LA
LA was KG's mother. LA gave evidence that when JG was born and KG was away the other children lived with their father at The Channon.
She said that whilst JG was still young, KG and JG came to live with her at her house in Victoria. She said they stayed for about three months. She said the property was a rural property at Marlo in East Gippsland.
LA said she subsequently moved to Tanglewood in northern NSW. She said the family would come and stay with her at Tanglewood a fair bit. She said they were training a lot in Queensland and that her property was between The Channon and where the family would stay. She said it was their second home, so to speak.
LA recalled an incident in the loft at Tanglewood in about 2001 or 2002. She said that KG and JG were out running and that she called out to the girls. She said they were in the loft where they had been giving WG a massage, and that they were giggling and said, "Daddy is teaching us to massage him", and that WG had a huge erection. She said that WG was not wearing any clothes.
LA said she was in shock and that she never talked about it until sometime later when she spoke to her daughter PB.
LA stated that there were certain other incidents which occurred after the complainant went to Doha. She said that WG was a really strict father. She said she thought he was a really good coach, but that sometimes he was just too hard on the girls.
LA recalled an occasion when CG and AG were given new bicycles. She said that they were riding them at The Channon and fell off their bikes into the flowerbed, and that WG picked the girls up, "hitting them physically". She said she told KG, who replied, "The girls know [WG] is tired, they know how to behave". She described WG as shaking the girls like ragdolls and banging them together like two objects.
LA gave evidence that after the complainant returned from Doha and had been to a camp at Falls Creek she stayed with her mother at LA's house. She said that one night the complainant was very disturbed, and that the next morning she told LA that she wanted to go to a clinic because that was where she felt safe.
LA said the complainant never said anything about what her father had done to her. She recalled, however, that when they were staying at Burleigh Heads the complainant told her she had to bring WG's coffee into bed in the morning and that he lay there naked. The complainant started crying when she told her this. LA said that by that time, she was much more aware of what went on over the years, and she just stopped the complainant from talking, as she "did not want to hear more".
[59]
Fiona Rourke
Ms Rourke stated she grew up in the area of Tuntable Creek Road. She said she moved into the area of The Channon at age nine.
She said she was around two years old when she first met the complainant and became friends with her. She said she used to spend time with the complainant at her home at The Channon and on occasion would stay the night.
Ms Rourke recalled playing hiding games with the complainant like hide and seek. She remembered a particular occasion hiding with the complainant in a wardrobe when WG came looking for the complainant, calling out her name. She said she could not remember anything else about that time she was hiding in the cupboard.
Ms Rourke said she remembered an occasion when she saw JG getting into trouble with WG. She said he was in trouble for not straightening his shoes and that he was taken off to the garage as punishment, and stayed there for a couple of hours.
Ms Rourke noticed that there was a shed on the property and said that the complainant would not go to it when she was with her. She said that she and the complainant would always run past it as fast as they could.
Ms Rourke said she saw an occasion when WG was angry with the complainant and picked up a skipping rope and whipped her with it.
Ms Rourke said she lost contact with the complainant when she was a bit older, and subsequently found out that the complainant had been in the Mental Health Unit at Lismore Hospital. She said that the complainant rang her to tell her that that was where she had been.
She said that the complainant told her that she was in hospital because of an incident which had happened overseas.
Ms Rourke said she met up with the complainant for coffee when the complainant was 19, and that they had a conversation about what had happened to her. She said that the complainant told her that it was not just the incident that happened overseas, but that it was her dad as well. She said that the complainant did not go into the details.
In cross-examination, Ms Rourke conceded that JG could have gone to the garage for any number of reasons.
Ms Rourke said when she played with the complainant they would have a swim in the creek on occasions, and that the complainant showed no fear when she was playing in the creek.
[60]
Sharon Palma Hannan
Ms Hannan said she had been an athletics coach for 33 years. She said that she owned a sports business and for a number of years from 2007 was the National Youth Event coach for sprints and hurdles with Athletics Australia.
Ms Hannan gave evidence that during a race in Hobart in 2007, the complainant pulled up injured and the sports medicine personnel suggested she should be taken for X-rays, so she took the complainant to Hobart Hospital. She said that the hospital could not find any apparent injury. Ms Hannan also said that in Melbourne something happened on the flight to the complainant. She said she had a phone call from one of the athletes, saying that the complainant had had some sort of episode on the flight, that she was quite distressed and that medical personnel took her off the flight.
Ms Hannan said that a decision was made that a person called Ty Chapman would stay with the complainant and that he went to the hospital with her.
Ms Hannan said she subsequently had contact with the complainant at an under 17s camp, which was maybe that year or the next year after the Hobart incident. She said that the complainant was in a flat at the Australian Institute of Sport in Canberra with a couple of other girls, and one of the girls came looking for one of the coaches or team managers, and said that the complainant was hurt. Ms Hannan said that the complainant had a head injury and was bleeding from the head.
She said the complainant told her that she had hit her head in the bathroom.
Ms Hannan said Nicky Frey took over looking after the complainant once she had been found. She said that Ms Frey was the National Youth Event coach for the middle distance group.
Ms Hannan said that shortly after the incident she spoke to the complainant's parents and told them that she thought the complainant had purposefully hurt herself. She said that KG was quite agitated and virtually refuted her suggestion the complainant had hurt herself, and that WG seemed agreeable with that.
In cross-examination, Ms Hannan said she was aware that WG was the complainant's coach. To her observation, she did not see the complainant displaying any fear of WG. She said that she felt on occasions that WG's children did too much training, but that that was the only concern she had.
[61]
Aloha Lambert
Ms Lambert said she lived in the area of The Channon from about March 1990 with her husband and came to know WG's family.
She said she babysat the children a couple of times. She thought that at some point during the time that KG was away at Brisbane Hospital after the birth of JG, a Ms Helen Opie looked after the three girls.
Ms Lambert said she recalled one incident when the girls rang to ask her to come down because KG was feeling sick. Ms Lambert said she thought that KG had just had a bit too much to drink. She could smell the alcohol on her breath. She said that KG was sitting on the lawn and could not get up. She said she helped KG into the house and into the shower.
Ms Lambert said that the next day she received a call from KG who asked her to take her to the doctor. She said that when she drove her to the doctor KG had JG and nappy bags in which there were a few bottles of home brew beer.
It was put to Ms Lambert in cross-examination that KG did not have home brew beer in the nappy bag but Ms Lambert denied this.
[62]
Nicola Jane Frey
Ms Frey said she had been an athletics coach for 25 years and had previously trained as a nurse at Royal Children's Hospital.
Ms Frey was referred to the Telstra Track and Field Championships in December 2006. She said she was watching the complainant running a 3,000 metre race when she pulled out on the back straight. She said that WG appeared to be very angry with her. She said he was berating or shouting at her and that there was lots of finger pointing.
Ms Frey said that in early 2007 she came to know the complainant better at the meet in Hobart. She recalled the complainant running a 3,000 metre event and finishing maybe fifth. She said that the complainant was pretty upset after the race and indicated she had hurt her foot.
Ms Frey said that by March 2007, the complainant had been accepted for the World Youth Track and Field team. She said that at the end of April to early May the complainant was in a camp at the Australian Institute of Sport with the rest of the team and came under her care for the camp. She said that during the course of a training session at the camp, the complainant became increasingly agitated and upset and said she was in a great deal of pain because she had broken her rib two months before. She said she suggested to the complainant that she stop, but that the complainant became almost hysterical, and did not want to stop but wanted to continue to train.
Ms Frey said the complainant asked her if she could jump over some steeples. She said the complainant did a couple but then became quite distressed because she felt sick with the pain. Ms Frey said she suggested to the complainant that it was time to stop and that perhaps she could ring WG. She said the complainant was adamant that she not ring WG. The complainant said her father would be angry and say she was weak for not finishing the section. Ms Frey said that during that time the complainant was rambling consistently about being strong and about not knowing what had come over her.
Ms Frey said a similar thing occurred during an evening training session.
Ms Frey said that about 20 or 25 minutes after she had settled the complainant in her room for the night the complainant's roommate knocked on her door. The roommate had the complainant with her and said that the complainant had had some sort of fall. Ms Frey said she ultimately took the complainant back to bed and settled her in her room. She said that prior to settling her down for the first time that night, the complainant had said to her that she might have been having a panic attack and that it was bringing Tasmania back to her. She said that the complainant told her what had happened on the plane coming home from Tasmania.
[63]
Rachel Clarke
Ms Clarke said she got to know the complainant's family when she was about 13 years of age. She said she initially met CG and then came to know the rest of the family.
She said she first started to go to the family's property when she was 14 to 15 years of age. She said she thought that WG was very controlling and sometimes aggressive towards the girls. She said she found the girls to be quite scared and petrified at times.
Ms Clarke said she could recall instances where KG would go to bed and take a bottle of red wine with her.
Ms Clarke recalled that there was a chicken coop in the backyard and that the girls seemed worried to be near it, the complainant being the most petrified of being near it. Ms Clarke said that she recalled WG taking the girls to massage them separately. She assumed he took them to the bedroom but she never saw where they actually went.
In cross-examination, Ms Clarke said she never saw any massages being conducted in the lounge room and accepted she never saw any massages being conducted at all. She said to her knowledge she and the girls were not allowed to go inside the shed. She said she was told this by all three sisters on a number of occasions.
Ms Clarke said she never saw WG striking any of the girls.
It was put to her that she only went to The Channon twice in her life and she denied it. In re-examination, she said that over the period when she was 14 to 16 she went once a month or once every couple of months.
[64]
Judy Ann Wallis
Ms Wallis said she visited the complainant when she was at Richmond Clinic. She said she visited her three or four times.
Ms Wallis said the complainant told her that WG used to go into her room at night from when she was seven years old. She said the complainant told her that WG fondled her, but said she could not remember other words she used.
Ms Wallis was shown a statement she made to the police on 8 March 2012. She refreshed her memory from the statement of what the complainant told her. She said that she recalled the complainant telling her, "He was touching me and sexually abusing me since I was around seven", and that the complainant also said that if she did not do well, WG would say, "Well, you know what's going to happen when you get home". The complainant also told her, "Dad would come in during the night, [and] sexually assault me".
Ms Wallis agreed in cross-examination that none of those conversations took place before the complainant was admitted to Richmond Clinic. She stated that at the time the complainant was around 17 but could have been 18.
[65]
Senior Constable Laleynya Ryan
Senior Constable Ryan prepared a statement on 3 April 2012. In her statement, she noted that on 19 January 2011 she took a statement from the complainant. She stated that after the complainant's statement was completed, the complainant gave her some other information which she took notes of in her notebook. Her notes stated that the complainant went on to disclose that after WG had assaulted her he went on driving and then stopped the car. She said the complainant told her that she was in the back seat of the car, and that WG took her belt off, whacked her with it and then pulled her pants down and had sex with her.
The notes recorded that the complainant took some time to say the words, "he had sex with me". The notes recorded that the complainant said it had been happening since she was eight years old and she thought it was normal, but that now she was sick of it and terrified of him.
Senior Constable Ryan also took photographs of scratches and bruising on the complainant's face.
[66]
Donna Louise Kylstra
Ms Kylstra said she first met the complainant when they studied at TAFE in Wollongbar in 2011. She recalled an incident on 13 October 2011. She said she was studying in the normal class and saw the complainant come to the door and beckon her to come out. She said that the complainant seemed really distraught, and was very anxious, sweaty, pale and shaking, and that she gave the complainant a hug.
She said the complainant told her that her mum and dad had tried to grab her at her servo which was down the road from where they were studying at TAFE. The complainant said she had been to a doctor's appointment earlier that day.
Ms Kylstra noted red marks on the complainant's wrists and neck.
Ms Kylstra said the complainant thought her parents had been following her but had tried to convince herself that she was just being paranoid, but that when she got to the servo she realised it was them. The complainant told her that WG tried to grab her and put her in the car.
[67]
Ann Margaret Sky
Ms Sky said that in 2011 she was the head teacher of general education at Wollongbar TAFE. She said that on 13 October 2011 the complainant came to her office with one of her fellow students. She said that the complainant was in a distressed state. She said the complainant told her that WG had attacked her at the local garage, grabbed her by the wrist and used quite a bit of physical force with her, pulled her hair, twisted her arm and tried to get her into the car. She said the complainant told her that her mother was in the car as well. Ms Sky said the complainant told her that her father abused her. She could not remember if the complainant used any exact words of abuse, but that it really upset and terrified the complainant. Ms Sky noticed red marks on the complainant's wrist and on her neck.
[68]
Denise Alison
Ms Alison was the photographer from Gilchrist Casting who took the photographs which became Exhibit 43. She said KG and her three daughters came to the agency and that there was talk of making a calendar to raise funds for one of the girls. She said she attended The Channon on 21 July 2008. She thought that a discussion about whether the shots would be nude occurred once she got to The Channon. Ms Alison said she was happy to take those shots because all the girls were incredibly athletic and she thought the shots would be good. She described the photographs as "just artistic, beautiful shots in the forest, naked, except for runners".
Ms Alison said she cropped some of the photographs because they did not look quite right. She said she provided KG with a full disc of edited photographs. She was pretty sure she also gave KG the raw images on another disc.
Ms Alison was asked about what was in the raw images that was not in the edited images, and she said there were a couple where there might have been pubic regions shown accidently. She said they were not bad photographs, and that they were not meant to be sexual at all, but were tasteful nudes.
In cross-examination, Ms Alison conceded she was unable to say with certainty that she gave the unedited photographs to KG. She also said that KG told her that the calendar was not done when she spoke to her on a later occasion.
[69]
Lesley Maxwell (Max) Pye
Mr Pye said he was the complainant's boyfriend for four and a half or five years, the relationship ending in 2014.
Mr Pye said he remembered a conversation with the complainant on 13 October 2011 in which the complainant told him she was going to the Community Mental Health hospital or unit in Lismore.
Mr Pye identified a series of text messages between him and the complainant received on 12 October 2011 and 13 October 2011.
Mr Pye said the complainant would send him a text message whenever she went from point to point so that he could know that she was okay. He said that they did this a fair bit after an incident earlier in the year, just to monitor where she was to make sure she was alright.
Mr Pye said that after he received the text messages he got a phone call from Donna Kylstra and drove to the TAFE to see the complainant. He said the complainant appeared very, very distressed, and that she was soaked with sweat and her eyes were dilated.
Mr Pye said he stayed with the complainant to calm her down and that they then drove to the Lismore Police Station. During the course of that drive, the complainant told him she had driven towards the TAFE and had thought there was a silver car following her, and that she pulled into the BP and that that was when she saw her parents. He said the complainant told him that they tried to take her out of the car and tie her hands up and told her to go with them, and she agreed but when her father got back in the car she jumped out and took off in her car.
Mr Pye was asked in cross-examination whether in August 2010 WG expressed his dislike of Mr Pye and the complainant staying in the same room overnight. He said that this conversation took place after he and the complainant had spent the night in the bunkhouse. Mr Pye recalled that after that he went to The Channon, although he was not sure if it was the week after. He said the purpose of this was to enable the complainant to collect some of her belongings. He was asked whether the complainant said to her father, "You didn't believe me about Doha. I'm going to make sure nobody ever believes you again" and he denied that this was said. He said that he was with the complainant the whole time while she was collecting her belongings, and that he was standing next to her while she was having a conversation with her father. He said he did not think he left her alone.
[70]
Dr Martin Chase
Dr Chase stated he had been an emergency specialist for 14 and a half years. He said that the complainant presented at Lismore Base Hospital on 13 October 2011, following an alleged assault in which she claimed she had her hair pulled, her left arm twisted behind her back and her face bumped against a car. Dr Chase noted that she had tenderness to the left cheek area, left wrist, several superficial grazes to her left wrist and pain on movement of the left shoulder but no other shoulder abnormalities.
Dr Chase agreed in cross-examination that it was extremely difficult to date bruises. He also agreed it was possible that the injuries complained of could have been self-inflicted.
In re-examination, Dr Chase said he did not think he had seen a patient in his time who had caused self-harm by having multiple blunt trauma injuries to the body in a similar pattern to the way the complainant had her injuries.
[71]
Dr Lynette Crehan
Dr Crehan stated she had been a doctor since 1984, with extensive experience in gynaecological examinations. She said she had been a medical officer with the Richmond Sexual Assault Service from 1995.
Dr Crehan said she prepared a report following an examination of the complainant on 20 January 2011. She also took a history from the complainant. The history as recorded by her stated that the complainant was travelling in a car with her father on 16 January 2011, that he slapped her head, then parked the car, got out of it and pulled her out, throwing her to the ground, and that she tried to get away but he grabbed her arm and pulled her back. He then put her in the car and drove her to a different place where he parked again. He made her get into the back seat of the car and he got in the back seat with her. He then removed her belt and hit her on her back with it. He removed her shorts and underwear and penetrated her vaginally with his penis. He then got her to perform fellatio and ejaculated into her mouth. He instructed her to swallow the ejaculate but she retched and vomited.
Dr Crehan noted that during the course of the examination of the complainant she saw lacerations on the side of the nasal bridge on her nose, a white patch of bruising below her right eye, a 12 mm long scratch over her right cheek, a 15 mm sized superficial scratch on the left side of her forehead and an area of tenderness above her right hairline.
She also noted scratches on the complainant's right upper shoulder on her back, tenderness in her right lumbar area, a blue bruise over her right knee and abrasions on her left knee which were healing.
Dr Crehan noted that the left shoulder was very tender to touch and that the complainant found it difficult to move her left arm due to shoulder pain.
Dr Crehan said her conclusion was that the findings were consistent with the history of assault related to her by the complainant. She noted that the genital and oral examinations were normal but that this was still consistent with the history related to her. She stated that studies show that the majority of women after a recent sexual assault have a normal genital examination, and that the genital area has very elastic skin or mucosa which stretches to withstand penetration and abrasion without visible injury. She said that the genital examination neither disproved nor proved an allegation of sexual assault.
[72]
Sergeant Justin Carroll
Sergeant Carroll was a forensic investigator. He held a Diploma in Public Safety in Forensic Investigation and a Certificate of Expertise in Crime Scene Investigation accredited by the Australasian Forensic Field Sciences Accreditation Board.
Sergeant Carroll gave evidence that on 29 February 2012, he attended The Channon with various other police officers. He conducted an examination of the site and took a number of photographs. While at the site, Sergeant Carroll was directed to a particular area towards the north-east corner of the property by the creek. He formed the opinion that the earth had not recently been turned in that area based on the uniformity of the soil. He stated that located approximately 5 cm down into the earth were part of a metal clamp and a long metal eyelet screw. He collected, packaged and sealed the clamp and the screw. Sergeant Carroll said he took photographs of the area.
For the benefit of the jury it was noted by the trial judge without objection that the clamp tool was the one the complainant had labelled "G" and the long screw with the eyelet tool "K".
Sergeant Carroll said he was then directed to an area towards the north-east corner of the property by the creek, approximately 30 metres south of the first area he examined. No items were located in this area.
Sergeant Carroll was then directed to an area 40 metres east of the main home, separated by a dense timbered and garden area and consisting of a small wooden shed. He said the shed had a concrete floor, timber frame, iron walls and an iron roof. The front of the shed was open and covered with chicken wire from approximately half way up the wall. Sergeant Carroll said that inside the shed there were stacks of timber logs along the northern and eastern walls. He said that along the western wall were a number of buckets of sticks and milk crates. He took various photographs of the shed.
Sergeant Carroll said that as the shed was searched by removing the crates, buckets and timber logs, a black plastic handle was located behind the logs in the north-west corner of the shed. There was no dispute that that was tool "I". He also discovered a pair of underpants in a dirty and dusty condition. He noted that in the framing on the floor along the western wall there were a number of words scratched into the timber. The words read "traped" [sic], "bad Dad", "mor wee" [sic], "Mum is coming" and "I'm goi" [sic].
[73]
Ty Chapman
Mr Chapman gave evidence that he competed in 2007 in Hobart at the Telstra Australian Under 20 and Under 23 Championships. He said he saw the complainant at Hobart at those championships.
Mr Chapman said the complainant was on the same flight as him travelling back. He noticed when they were in Melbourne that the complainant began to hyperventilate, seemed to be very anxious and looked like she was having a panic attack.
Mr Chapman said he accompanied the complainant to a hospital in Melbourne. He said she was able to fly eventually.
Mr Chapman said he saw her on the flight to Brisbane and observed that at the end of the flight she had another episode where she started to panic. He saw medical staff attending to her on the plane.
In cross-examination, Mr Chapman stated he had known the complainant for about a year prior to the meeting in Hobart. He agreed that his relationship with her was that of a mere acquaintance rather than friends. He said that from his observations at the Griffith University training track where they both trained, the complainant did not appear to be frightened of WG.
Mr Chapman stated that the complainant never told him why she was having a panic attack.
[74]
AG
AG, the complainant's eldest sister, gave evidence. Some of that evidence related to Counts 87 to 89, in respect of which KG was acquitted. I have not recorded the evidence which directly relates to these counts.
AG gave evidence that she was halfway through Grade 1 when the family moved to The Channon from Victoria. She gave evidence of her schooling, and that she had moved to the United States when she turned 18. She agreed she was heavily involved in athletics whilst she was growing up.
AG was asked to describe her relationship with her father as she grew up. She said that she was terrified of him. She stated she had never really known how to describe her relationship with her father, but that the best way she could describe it was that it had always been running, expectations and pressure. She was asked whether WG would ever react to her in a physical way when she was growing up, and she said absolutely yes, many times. She said he would get really angry. She said she recalled that on one occasion he got the spray that he sprayed weeds with and whacked her with it. She recalled another time he got angry and he threw a log at her.
AG was asked whether she would be put in any particular parts of the house by WG. She said she was locked in the garage many times.
AG said she recalled KG drinking alcohol many times. She said she recalled a time when she found KG passed out on the first entry door into the home.
AG was asked whether when she was growing up and living at The Channon there were times she noticed that the complainant was absent when AG was at home. AG said there were times that she noticed this, and that she thought that the complainant was at Fiona's house. However, she recalled a couple of occasions when Fiona called asking if the complainant could go and play, despite the fact that AG had been told that the complainant was at Fiona's house.
AG recalled that WG massaged her from the age of 13 onwards. She said the massages became more regular. She said she recalled on one occasion when she was aged between 13 and 16 after WG had mowed the lawns that he told her that she had to have a massage. She said that it was extremely uncomfortable. She said that WG massaged her around the bottom and vagina area, causing her sexual arousal, and that it was followed up by him asking her to massage him. She said his fingers trailed inside her vagina.
[75]
Susan San Juan
Ms San Juan was an officer of the Australian Border Force operating within the Department of Immigration. She gave evidence that WG left Australia on 3 December 1997, returned on 10 December 1997, left on 5 September 1988 and returned on 17 September 1998. In cross-examination she agreed that no request was made for WG's movements prior to New Year's Day of 1997.
[76]
Professor Robert Fitzpatrick
Professor Fitzpatrick was a highly qualified soil scientist. He worked as a podologist, a person who studies how soils are formed, their properties and their origin, and had also had experience as a geochemist, a mineralogist and a forensic soil scientist. He said he was requested by the NSW Police to undertaken visual electrochemical and mineralogical characterisation of two metal objects and soils in which the metal objects had been buried to estimate the corrosivity of the soils.
Professor Fitzpatrick said he received control soil samples and the two metal objects on 7 June 2012. He had previously given advice as to how the soil samples were to be taken from the scene. He did not inspect the site.
Professor Fitzpatrick prepared a PowerPoint presentation to simplify the results of the investigations. A copy of that presentation was tendered as Exhibit 67.
Professor Fitzpatrick stated that he concluded it was likely that the items had been buried for longer than three years.
In cross-examination, Professor Fitzpatrick was asked whether it would be entirely consistent with his opinions to assume that the metal objects he tested in the soil were moved from one location of the property to the location where the photographs were taken. He said for that to occur, the objects would have to have been placed in a similar type of soil, "then picked up and moved very carefully, exposed and then plopped down". He could not say whether that happened or did not happen.
Professor Fitzpatrick was referred to photographs in his PowerPoint presentation which showed the location of the metal objects. He was referred to a slide headed "Description of questioned corrosion coating from metal quick action sliding clamp". He ultimately agreed that it appeared that there was a tree stump in the first photograph on that slide, below the letter "A". He identified a rock covered in moss and agreed the tree had in fact formed itself around the rock. He agreed with the conclusion that the rock had not been moved during the life of the tree.
Professor Fitzpatrick was then referred to the rock immediately above, and he agreed that it did not appear to have any kind of moss on it. He was asked in that context whether it appeared that the rock with no moss on it had been placed there more recently than the tree and the other rock had been there. He said he could not judge that from the photograph.
[77]
Dr Christine Norrie
Dr Norrie gave evidence that she was the forensic clinician and consultant of the Child Protection Unit at the Children's Hospital at Westmead. She said she had been working there since 1991. She stated that from 2005 until 2013, she was the visiting medical officer and consultant for the Sydney and Sydney Southwest local health districts, seeing child, adolescent and adult patients. She said from 2008 to 2011 she was the acting medical director of the Sydney Southwest Area Health Service Sexual Assault Units, and from 2005 to 2009 she was employed by the Royal North Shore Sexual Assault Service, seeing mainly adolescent and adult patients.
She stated that in addition to her earlier studies, she had postgraduate education in injury interpretation and clinical photography, adult sexual assault, paediatric forensic medicine and various other matters including forensic psychiatry and psychology.
Dr Norrie stated that she examined the complainant on 6 August 2012 at the request of the investigating police and the Office of the Director of Public Prosecutions. She said she was provided with a lengthy 79 page statement by the complainant that had commenced on 20 October 2011 and was completed on 28 January 2012. The statement included sketches of tools that had been labelled from "A" through to "K". Dr Norrie also stated that she was provided at the time with three colour photographs of implements that had been buried at the property where the complainant had lived, and had subsequently been shown the items themselves.
Dr Norrie was also provided at the time with statements of Dr Crehan.
Dr Norrie stated that she was aware from the information she had been given that there were allegations of digital penetration, penile-vaginal penetration and vaginal penetration with tools or implements. She was aware there was also one allegation of a tool being inserted in the complainant's anus and allegations that the complainant would perform acts of fellatio on her father. She was also aware of allegations of physical assaults.
Dr Norrie agreed she made two reports, the first dated 6 August 2012, and the second dated 26 February 2016 which was in response to an expert certificate written by Dr Maria Nittis.
Dr Norrie gave evidence that she went to Nepean Hospital on 6 August 2012, where she met the complainant, her counsellor and Dr Nittis, who ran the forensic medical unit at that hospital. She said she and Dr Nittis examined the complainant together.
[78]
Dr Justine Hoey-Thompson
Dr Hoey-Thompson stated she had been a psychiatry registrar and psychiatrist for the past 17 years and that she was the treating psychiatrist for the complainant. She said she had been treating the complainant for approximately six years.
Dr Hoey-Thompson described the complainant as suffering from post-traumatic stress disorder with a dissociative subtype, and a dissociative identity disorder. She stated that usually people with post-traumatic stress disorder can experience hyperarousal, so will get flashbacks, intrusive memories of the events of the trauma and nightmares, and will go to extreme lengths to try and avoid thinking about the trauma in their own minds and also external things that might remind them. She said the dissociative subtype is when people "numb themselves down". She said that for some people the dissociative state may last for a long time.
Dr Hoey-Thompson stated that dissociative identity disorder is a disorder in which people block out trauma and memories, and if they dissociate and block these out enough times they develop discrete, individual states or parts of themselves with different memories.
Dr Hoey-Thompson said a variety of traumas, including physical violence and childhood sexual abuse, had a high correlation with dissociation. She said that the studies indicate that dissociative identity disorder is a way to deal with trauma, usually trauma which occurs before the age of five or six years, and which is of an intense, frequent and recurring nature.
Dr Hoey-Thompson's opinion was that the cause of the complainant's disorders was "frequent, intense, violent, horrifying sexual abuse, threats of death, physical abuse, threats of physical violence, neglect, physical neglect, emotional neglect, [and] also betrayal by her mother of knowing what was happening and not protecting her and not helping her". She stated that the alleged sexual assault upon the complainant that occurred in Doha did not have any bearing on her opinion in relation to the cause of the disorders, because in her experience the disorders were caused by trauma starting before the age of five or six.
Dr Hoey-Thompson said that blocking off memories of trauma and betrayal as if these did not exist allows a child to then "get on with life and pretend life is normal". She said that the complainant had to block out the betrayal and abuse to remain attached to her mother.
[79]
Sergeant Leigh Hawdon
Sergeant Hawdon gave evidence concerning her interviews with the complainant following the events in October 2011, the subject of counts 85 and 86. She gave evidence that on 21 October, KG attended Lismore Police Station and participated in a recorded interview. A disc recording the interview was tendered against KG and admitted without objection.
Sergeant Hawdon also gave evidence that on 2 July 2011, Constable Ian Murphy conducted an interview with WG concerning an allegation by the complainant that she had been sexually assaulted by WG on 17 January 2011. A copy of Constable Murphy's recording of the interview was tendered against WG without objection.
In her interview, KG said that the complainant's account of the incident the subject of counts 85 and 86 was completely fabricated and did not happen. KG stated, "We're at a point where we want this to go to court, we want to bring this out, I want her in court, I want to look her, her in the eye and I want this done because it's destroying my whole family".
KG suggested that the complainant was under a lot of pressure as an elite athlete and that she could understand why she had "cracked up". KG stated there were five occasions where the complainant escaped from the Mental Health Unit. She said on one occasion she found the complainant with one leg over on top of the bridge in Lismore, just about to jump.
WG in his interview with Constable Murphy also denied that the incident occurred. He said he had never hit the complainant, except one slap on the face a few years ago at the Gold Coast when she was "totally out of control". He said the complainant was his best friend and that they had a fantastic relationship when she was growing up.
Sergeant Hawdon also gave evidence of the walk through of the property on 29 February 2012 where the complainant identified the location of the items which she said she had buried. She also gave evidence of obtaining the photographs which formed Exhibits 42, 43 and 44.
Sergeant Hawdon said that on completion of the walk through she returned to the driveway area of the main residence where she had a conversation with KG and CG. She gave evidence of a portion of the conversation in the following terms:
"I said '[KG], as I told you earlier, [the complainant] pointed out some locations where she buried things. We have located some items at that location that we believe were used to sexually assault [the complainant].'
[KG] said, 'She must have come out here and buried those just like the angel.'
[CG] said, 'Yeah, she must have been out here, mum'. As [CG] stated this, she laughed."
[80]
The case for WG
WG gave evidence.
In his evidence in chief, WG said that by 1996 he had been promoted to senior lecturer at Southern Cross University. He said that because the internet connection at The Channon was very poor, he had to do his research at the university, usually after hours in his office. He said in the mid to late 1990's he was leaving for work at any time between 6:30 am and 7 am and coming home consistently at 10 pm, sometimes later.
WG said he worked in the garden every daylight hour when he was at home, and nearly always on weekends. He said he worked in the garden on weekdays only if he was home, and that that was a very rare occasion up until 1999.
WG said he played a very small role in the complainant's upbringing.
WG denied all the allegations made against him by the complainant.
WG said that chickens were kept in the shed for the first year the family resided at The Channon, but that after they lost the final chicken to the carpet snake they used it as a wood shed. He said that he would put green wood in the shed, usually in September or October ready for the next year's winter. He said that the girls helped a lot in putting the wood in the shed. He said that in winter the wood was moved from the shed to the house probably daily or every second day.
WG was asked whether there was a door to the shed. He said he made up a frame and made the mistake of nailing a sheet of tin to the frame and then hanging it up. He said that the door when it closed would not close properly, because the tin would catch on the fence and the edge of the shed, so it would spring open. He said he got an old kitchen bench and used to place that against the shed to keep the shed door closed, but that was only when the chickens were there, probably from August 1994 through to Christmas of that year.
He said there was never a locking mechanism, a hinge or a latch on the door to the shed. He also said that the garage door would never go to the ground and did not have a lock.
WG said he slapped the complainant across the face once. He denied he ever instructed the complainant to either touch or lick KG's vagina, and denied dragging KG by her hair towards the creek.
WG stated he did not commence coaching the complainant until she won her first Australian Cross Country Championship in Sydney in August 2001. He stated he gave the complainant massages very rarely. He said he taught his daughters how to massage, and in particular taught them the sports technique of being able to self-massage and look after their own physiology. He explained why athletes needed massages.
[81]
The case for KG
KG gave evidence that she studied to be a teacher and taught both primary and high school.
She said that in 1994 the family moved to The Channon.
KG gave evidence about the birth of JG. She said he was a "26 weeker" and that she nearly lost her own life. She said she and JG both had really bad infections so she was helicoptered or ambulanced up to the Royal Women's Hospital in Brisbane.
KG said that during her time at The Channon she taught in several schools in Lismore. She said that this was not full-time, but that she just wanted to do two or three days to keep in touch with the teaching world.
KG said she had an athletic history herself, commencing when she was about ten. She described herself as a very good junior national track runner, and said that she ran full marathons when she got older. She said she trained with the girls all the time and was in charge of their diet and sleep patterns. She also guided them with their running, and would talk with them about the pressure they were under. She said she was more like a psychologist.
KG was asked about the incident at the Australian Institute of Sport to which I have referred at [251]-[255] above. She said she was phoned by Sharon Hannan who told her that she was very concerned about the complainant because she believed the complainant had hit her head on purpose. KG said she was very concerned because it was not something she had seen or witnessed in the complainant. She said she asked the complainant about it but the complainant told her it was an accident, that Sharon was over-exaggerating and that she was really concerned about the fact that it would affect her going to the World Youth Championships. She said that as Nicky Frey explained, she and WG flew to Melbourne to discuss what would happen with the complainant and if she was ready to go on that Australian team. She said the complainant did not go to the Championships because they all decided she would need to go away and grow up a little bit.
KG was asked about the incident in Hobart to which I have referred at [245] above. She said she spoke to the complainant. It was her 15th birthday and she seemed quite happy, joking saying, "I've got to wait around so long in hospital". She said she met the complainant in Brisbane and that she was really hyperventilating, struggling to breathe. She said she took the complainant home once she was medically cleared.
[82]
CG
CG, the complainant's sister, was asked whether there was any occasion when she was with her mother and other two sisters when her mother demonstrated to them physically how to pleasure themselves or masturbate. She responded that there was most certainly not. She also denied ever speaking about orgasms in the presence of her mother and two sisters.
CG said that growing up she and her two sisters were basically inseparable.
CG said she never received any complaint from the complainant about sexual activity between her and her father or sexual activity between her and her mother.
CG said that when the complainant returned from Doha and was admitted to the Mental Health Unit, she left her job on the Gold Coast and moved down to spend every day with her.
CG recalled the occasion when the complainant came back to The Channon from the Mental Health Unit. She said the complainant was there for six weeks and that she saw her every day.
She was asked about an occasion when she saw the complainant at a bridge at Lismore. She said she saw the complainant was about to jump from a very high bridge with concrete on the bottom. She said the complainant was on the top of the bridge and that she found her just in time. She said she ran up, grabbed her and held her down to stop her jumping. She said two security guards had to hold her down as well. At the time she noticed that the complainant was bleeding from her arms.
CG stated that when she was referring to security guards she meant police officers.
CG was shown a photograph of her with her mother and two sisters (Exhibit 83). She said it was taken at the Gilchrist Casting Agency. She said it was the initial photography for the modelling for their website.
CG recalled an arrangement being made for Ms Alison to come to take photographs at The Channon.
CG denied ever being present when some photographs were taken of the complainant in underwear. She said she was never told of any photograph of this type.
CG said her mother enjoyed one or two glasses of wine. She said she had never seen her drunk or take a bottle of wine into her bedroom.
In cross-examination by counsel for WG, CG stated that in 1997 her father worked long hours, leaving early in the morning before it was light and coming home late at night, sometimes at 10 o'clock. She said he often worked away from the property.
[83]
John G
John G is the father of WG. He said that on 13 October 2011 he was at his home in Goonellabah.
He said WG and KG arrived at his home after 10:30 and before 11:00. He said they stayed for roughly two hours.
John G said WG came for his car which was parked in his garage.
John G said WG and KG left the house just before him. He said they drove out before him in KG's car. He said it was roughly after 12 o'clock.
In cross-examination by counsel for WG, John G said he lived at The Channon for about 16 months from April 2003.
John G agreed in cross-examination that he had mistakenly given his Melbourne address instead of his Goonellabah address.
John G agreed his house in Goonellabah was in-between Lismore and Wollongbar, and that if you were driving from Lismore to Wollongbar you would pass the turnoff to his house.
[84]
Jane Goodwin
Jane Goodwin gave character evidence in support of KG. She said she had known KG from about 2005, and that shortly after meeting her KG began coaching her daughter in running. She said KG coached her daughter from the time she was nine until she was 20.
Ms Goodwin said she had observed KG's behaviour with her four children. Ms Goodwin said that KG was acting as a mentor for Ms Goodwin's daughter, and that she was supportive and encouraging. She said she had been advised of the general nature of the charges and said she was shocked and was in complete disbelief.
In cross-examination, she was asked whether it would be inconsistent with the woman she knew if there was evidence of photographs of KG posing nude with her three daughters, and she said she guessed so.
[85]
Paul McGuilverey
Mr McGuilverey gave character evidence on behalf of KG.
He said in 2004 he was teaching at St Andrews Lutheran College and lived in a house with the family on the Gold Coast for the first six months of 2004.
Mr McGuilverey said whilst he was at the house and at the school he got on very well with the three girls. He said he taught the complainant and CG. He said he was like part of the family.
Mr McGuilverey said he observed KG interacting with her family. He said the girls would always go to KG for advice. He described KG as terrific and a good role model for the girls.
Mr McGuilverey said he was apprised of the general nature of the offences alleged against KG, and said he was shocked and did not really believe it.
Mr McGuilverey said that whilst he was staying at the house he saw KG drink a glass of wine occasionally after dinner before bed.
In cross-examination by counsel for WG, Mr McGuilverey was asked whether the complainant said anything about her aspirations in running. He said the complainant said that she was going to The Olympics either for running or soccer, or skateboarding if they brought it in. He said the complainant never appeared to be in any sort of fear of her father.
Mr McGuilverey said he saw WG coaching his daughter and did not notice anything out of the ordinary. He also said when he went to squad camps at The Channon he would go for a dip in the creek, and said the complainant did not display any fear of water.
[86]
Maegan Smith
Ms Smith gave evidence that she had known KG for 13 years. She met her when she was competing against and training with the complainant over a period from 2003 to 2009. She said she was involved at training camps at The Channon.
Ms Smith said the area she stayed in at The Channon was described as the bunkhouse. She said that KG fed and cared for her when she was there on training camps.
She said from time to time she helped out in the house and the garden.
Ms Smith said that on the majority of occasions she and the other athletes went to The Channon, they went in the minibus that WG owned. She said that they would go as a group after school and be there for a full weekend.
Ms Smith said she was provided with a brief description of the charges against KG. She described her reaction when she heard the allegations as "unseen, unheard of … It's just uncharacteristic". She said it did not fit with her image of KG.
In cross-examination by counsel for WG she said she swam with the complainant in the creek at The Channon. She also said that the complainant said she wanted to be the best she could be, and if that took her to The Olympics, that was where it would take her.
Ms Smith said she saw a shed with wood in it and that from time to time she moved the wood herself to a big grassed area outside the house.
Ms Smith said she saw the complainant with a camera taking photographs, including photographs of her sisters.
Ms Smith said the complainant did not appear to be frightened of WG. She said she never saw problems between the two of them. In relation to the event at Nowra in 2009 (see [305]-[309] above), she said she could not specifically remember the complainant being at the track but she remembered seeing her in the evening and that the complainant was "normal, bubbly".
Ms Smith said she also recalled seeing the complainant at the Down Under Meet in 2009. She also recalled seeing WG there.
Ms Smith was asked if she ate chillies when she was at the squad camps. She responded, "It was just something funny that we did. We just tried to find the smallest chilli and have it in your mouth for the longest possible time".
She said she did it herself and that she saw the complainant doing it.
[87]
Leanna Smith
Leanna Smith was Maegan Smith's mother. She said she had known KG and WG for 13 years.
She said that over the years she came to see the whole family together.
Ms Smith said that in 2009 she attended a National Cross Country event in Nowra and stayed a house with the complainant, her daughter and other women.
She stated she believed that the complainant fell over in the race but that after the race did not notice any particular change in her. She said the last night before they went home there was a 13th birthday party and the squad got together. She said she saw the complainant at the barbeque "running around with the boys and having fun".
Ms Smith stated she formed the view that KG was a very loving and supportive mother. She said she went to The Channon twice. She said there was a barbeque the second time and that there was alcohol. She said that KG only had one glass, or maybe two.
Ms Smith said she would describe KG's alcohol consumption as light.
Ms Smith said she had been told of the charges against KG. She said she was totally shocked and that it was not within KG's nature.
In cross-examination by counsel for WG, Ms Smith said she saw WG and the complainant interacting. She said the complainant did not appear to be frightened or fearful of WG. She said she remembered WG at the barbeque at Nowra. She said she did not see him driving a minibus at all during the Nowra event. She said the complainant did not appear to be upset during the barbeque.
In cross-examination by the Crown she said she did not recall a minibus being at the Nowra event, but said it was usual for the Queensland team to hire a minibus. Ms Smith said she was aware of the photographs of KG posing naked with her daughters and stated they were done artistically. She said she saw the photographs not long after they were taken. She said the one she saw showed KG on a branch with a couple of children in front. She said KG showed the photographs to her because she was very proud of them.
[88]
WG's application for leave to appeal against conviction
By an amended notice of grounds of appeal, WG relied upon the following grounds of appeal against his conviction:
"Ground One: The absence of fresh and new evidence in the trial has led to a miscarriage of justice.
Ground Two: The prosecution failed in its duty to call Dr Maria Nittis, a relevant and credible witness, who, together with Dr Christine Norrie, directly conducted [a] very important physical examination of the complainant JG on 6 August 2012, with the result that this central part of the prosecution case was unfairly unbalanced, and there was a substantial miscarriage of justice.
Ground Three: This ground is not pressed.
Ground Four: The jury's verdict was unreasonable and inconsistent with the evidence.
Ground Five: The [learned] trial judge erred in refusing to accede to the application of counsel made on 28 June 2016 that the jury be discharged."
As grounds 1 and 2 overlap, it is convenient to deal first with ground 2 and then ground 1.
[89]
Ground 2: The prosecution failed in its duty to call Dr Maria Nittis, a relevant and credible witness, who, together with Dr Christine Norrie, directly conducted a very important physical examination of the complainant JG on 6 August 2012, with the result that this central part of the prosecution case was unfairly unbalanced, and there was a substantial miscarriage of justice.
[90]
a Background
As I have pointed out, Dr Nittis was present when Dr Norrie conducted her examination of the complainant. Dr Norrie's report was dated 6 August 2012. On 22 July 2015, Dr Nittis was retained on behalf of WG to review, among other matters, the report furnished by Dr Norrie.
On 6 August 2015 Dr Nittis provided her report. At the outset of the report the following comments under the heading "Disclaimer" were made: "I was present at the time of the examination by Dr Christine Norrie of [the complainant], on 6 August 2012. I took the photographic images".
The report of Dr Nittis was delivered to the Director of Public Prosecutions by email on 28 August 2015. On 1 September 2015, the solicitor responsible for the carriage of the matter on behalf of the Crown sent Dr Norrie an email inquiring about the involvement of Dr Nittis. Dr Norrie informed the solicitor that Dr Nittis was there to take photographs of the examination. She said that Dr Nittis was present for the entire examination.
On 8 March 2016 the supplementary report of Dr Norrie was sent by the Director of Public Prosecutions to WG's representatives.
On 4 May 2016 WG's representatives requested the Crown call Dr Nittis as a witness. The Director of Public Prosecutions declined to do so on the same day, stating that this was because Dr Nittis provided a report at the request of the accused and was not a Crown witness. Each of these emails was copied to counsel for both WG and KG.
No further request was made to the Crown to call Dr Nittis. However, Dr Nittis was available to WG's representatives at the trial. In an affidavit, the solicitor representing WG at the trial deposed he had received instructions not to call Dr Nittis. He said, "We conferenced Dr Nittis during the trial", and "The reason for not calling Dr Nittis was that the evidence of Dr Norrie obviated the need to call Dr Nittis".
Mr O'Sullivan, who appeared as counsel for WG at the trial, also swore an affidavit in connection with the matter. He stated that he did not speak or confer with Dr Nittis during the trial. He also stated [incorrectly] that the Crown was not requested to call Dr Nittis.
In his affidavit Mr O'Sullivan gave his reasons for not calling Dr Nittis:
"I recall a reason affecting the decision not to call Dr Nittis was that Dr Nittis' concerns were dealt with in my cross-examination of Dr Norrie and in aspects of my closing address concerning Dr Norrie (see TT 2646-2647, 2707). My recollection is that the defence had Dr Nittis on standby, however determined not to call her to give evidence as I was able to adequately address matters raised in her report through questions asked by me to Dr Norrie. In this regard, the matters that were taken into account included:
(a) Dr Norrie was unable to express an opinion regarding the scissors (T 1740);
(b) Dr Norrie conceded that the white area was not an obvious scar;
(c) in relation to Dr Nittis' opinion on infection, the evidence of [the complainant] saying that she suffered infections (T 970-971) and the evidence of Dr Norrie that there were factors present that would have prevented infection (T 1738);
(d) my cross-examination of Dr Norrie about the basis on which she opined that the transection occurred pre-puberty (for example from T 1746.15 and from T 1750)."
[91]
b The reports of Dr Nittis
Dr Nittis stated in her report of 6 August 2015 that she was asked to provide an opinion, in particular, in respect of Dr Norrie's conclusion: "One could argue the fimbriae in these sections of the hymen were damaged before the advent of puberty, preventing the changes of oestrogenisation to the hymen". She noted the solicitors informed her that Dr Norrie had altered her opinion from that being a possibility to a certainty. Dr Nittis stated that she was also asked to provide an opinion on "the likelihood of infection post-penetration of the vagina with a rusty spanner (age 12) that [led] to subsequent bleeding as well as the likelihood of infection after insertion of a pair of scissors into the vagina which allegedly resulted in severe pain, heavy bleeding and dysuria (age 8)".
Dr Nittis stated that according to Dr Norrie, examination of the hymen revealed transections at 5, 7 and 9 o'clock. She stated that her own notes described complete transections at 4 o'clock and 7 o'clock. She stated that if there had been a complete transection at 9 o'clock she would have been unlikely to record this, as it can be seen in children who have not been sexually abused.
Dr Nittis stated that Dr Norrie noted thin hymenal tissue between 5 and 7 o'clock and again between 7 and 10 o'clock. She stated she would not have noted this as she did not believe there was any research that linked thinning of the hymen to previous trauma.
Dr Nittis referred to the evidence of the complainant about being locked in a shed for three full nights with only one cup of water to drink and no food. She stated it was unlikely that a small child could go for three days or more with one cup of water and no food without becoming clinically dehydrated and appearing unwell.
Dr Nittis referred to the fact that the complainant related numerous assaults where she bled from the vagina afterwards. She stated that if that was true it would indicate that there had been some physical damage and a breach in either the genital mucosa or the skin around the genitalia. She stated that the description of the assaults provided by the complainant would indicate that on a majority of occasions, damage had been significant, adding that the complainant said that in some cases bleeding continued for days afterwards. Dr Nittis also noted that on some occasions it was alleged the damage was caused by tools which had been placed on the ground or were described as rusted. She noted that the complainant described hiding tool "D" on the shed floor under some leaves, which indicated that the floor of the shed was not clean. She said it was highly unlikely that this amount of repetitive and significant injury, with no treatment provided, could continue to occur without infection.
[92]
a WG
WG's written submissions on this issue were brief. It was submitted that Dr Nittis was an eye-witness to the examination of the complainant and was well qualified in her field. The submissions referred to Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, where it was stated that it is necessary to call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events on which the prosecution is based. It was submitted that the failure to call Dr Nittis led to a miscarriage of justice.
At the hearing, senior counsel for WG accepted that Dr Nittis was at the examination for the purpose of taking photographs. He submitted, however, that her role was not just that of being an expert witness qualified by one of the parties, but that she was actually "in a sense" an eyewitness. He submitted that she was there at a crucial time for the medical examination and that she gave evidence in her report of what she saw on examination of the complainant.
Senior counsel for WG submitted that the critical point of Dr Norrie's evidence was that the damage to the hymen was consistent with and only consistent with some form of penetration before puberty. He submitted that Dr Nittis was an observer who made notes in relation to what she saw.
Senior counsel for WG did not dispute the proposition that the only difference in the observation of clinical signs was that Dr Nittis did not identify anything as a scar in the region between the fourchette and the anus, whereas Dr Norrie said that whilst not having recorded that at the time, having looked at the photographs afterwards she thought a whitish patch of tissue in that area might be a scar.
Senior counsel for WG said there was a miscarriage of justice even where the witness was available to the defence to call. He submitted that the conclusion that the gynaecological examination of the complainant indicated pre-pubescent penetration was a very significant part of the Crown case. He submitted that putting the onus on the defence to call Dr Nittis ran the risk of the jury discarding her evidence on the basis that she was obviously in the defence camp.
Senior counsel for WG submitted that Dr Nittis was in fact another examiner taking part in the examination, making her own observations and making her own contemporaneous notes. He submitted it was apparent from the August 2015 report that she was present during the examination and sufficiently involved in order to make observations. He accepted that Dr Nittis declined to be paid for the services she provided at the examination because she understood she would not be requested to submit a report. He submitted, however, that she was more than a photographer.
[93]
b The Crown
The Crown in written submissions submitted that there was both ample time and opportunity to enable trial counsel for WG to make a considered decision on how to approach or respond to the evidence of Dr Norrie. The Crown referred to the fact that a Basha Inquiry was held with Dr Norrie on 15 March 2016, where trial counsel for WG asked her questions in relation to her methodology in preparing the report, the relevance of various items included with it, the nature of the abnormalities to the hymen which had been observed, the injury to the anus and the nature of the trauma leading to the tear or "laceration". The Crown stated that at the Basha Inquiry Dr Norrie said she had prepared two reports, one dated 6 August 2012 the other 26 February 2016, and had been provided with the expert report of Dr Nittis.
The Crown submitted the decision not to call Dr Nittis was that of Mr O'Sullivan. No reason was given for the request made of the prosecutor to call her and the request was not renewed. The Crown submitted that the report of Dr Nittis was an expert report commissioned on behalf of WG. He also submitted that there was no substantial conflict on factual matters. In that context, the Crown noted at the hearing that counsel for WG did not challenge Dr Norrie on any significant factual matter.
The Crown at the hearing also pointed to the fact that the issue could have been raised with the trial judge but was not. He referred to the fact that a trial judge can take steps to ensure a fair trial.
[94]
Consideration
It has been said that the duty of a prosecutor involves an obligation to call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events on which the prosecution is based. In Whitehorn, Deane J expressed the obligation in the following terms (at 663):
"Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer). If there be exceptions to that general proposition, they do not presently occur to me."
Dawson J, with whom Gibbs CJ and Brennan J relevantly agreed, explained the obligation as follows (at 674):
"In Richardson v. The Queen this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor.
Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court."
[95]
Ground 1: The absence of fresh and new evidence in the trial has led to a miscarriage of justice
WG sought to rely on evidence from six witnesses in support of this ground. It was properly conceded that the evidence was new evidence, not fresh evidence.
[96]
(i) Dr Nittis
The first witness was Dr Nittis. In her affidavit of 5 February 2019 she annexed her report of 6 August 2015. I have summarised its contents in dealing with ground 2. In addition, there was a further report of Dr Nittis dated 26 February 2019 annexed to an affidavit of the solicitor for WG. As I indicated earlier, Dr Nittis in that affidavit examined and criticised the evidence at the trial given by Dr Crehan and Dr Norrie.
The criticism by Dr Nittis of the evidence of Dr Crehan was not the subject of any submission either orally or in writing. Whilst Dr Nittis criticised certain aspects of the examination of the complainant undertaken by Dr Crehan on 20 January 2011, she did not contradict any of Dr Crehan's conclusions, save to say that she thought the lacerations to the complainant's nose were more consistent with a fall or punch than a slap.
It is only necessary to deal with two aspects of her criticism of Dr Norrie. First, she noted that Dr Norrie "theorised that damage to oestrogen receptors in the hymen during the pre-pubertal period results in thin or non-oestrogenised hymeneal segments allowing an examiner to determine when the injury occurred". She stated that "[w]hile Dr Norrie's theory may be correct there is no research available, of which I am aware, that supports this opinion". As I have set out above, she also concluded that there was nothing in the genital examination of the complainant that either supported or precluded her version of events.
The Crown submitted that no submissions had been made on behalf of WG as to why the evidence would satisfy the Court of WG's innocence, or entertain such a doubt that a verdict of guilty could not stand.
[97]
(i) Dr John Roberts and Ms Lisa Celi
Ms Celi stated in an affidavit that she met the complainant at the World School Games at Doha. She said she had spoken to the complainant on the telephone and Facebook since that time.
Ms Celi stated that whilst in Doha she was inappropriately touched by Mr Rod Bathe during a massage. She told the complainant.
Ms Celi said following a boat trip during which the complainant became ill, she saw Rod Bathe standing over the complainant's bed while she slept. She said that after she told the complainant about the massage, the complainant told her that something had happened between her and Rod Bathe that night, but that she could not remember what it was. All the complainant remembered was deep pressure on her arms. She remembered that after that, the complainant would wake up in the middle of the night in high distress, so she moved to the room next door and would sleep there.
Ms Celi said that about a month after they returned from Doha, the complainant rang her and said she remembered what had happened when she was overseas with Rod in her room, and that she was fairly sure that Rod had raped her. Ms Celi said she asked the complainant why she was "just remembering it all of a sudden", and that the complainant replied, "I don't know, it just all came back to me. I tried to have sex with my boyfriend Max and when I did that it just all came back at once".
Ms Celi said that in November 2013 she telephoned the complainant, who told her that Doha had made her remember what her father had done to her. She said the complainant mentioned that her father had cut her vagina with an implement and that she had buried some underwear and had recently dug them up.
Ms Celi annexed to her affidavit a draft statement which she had previously made. It was conceded by senior counsel for WG that an unsigned draft statement was in WG's solicitors' possession at the time of the trial. The draft contained the same material as the affidavit, along with certain other comments.
Dr Robert's report of 22 July 2015 placed reliance on Ms Celi's draft statement. He referred to the material in that statement, and certain other material which was not in evidence at the trial, nor sought to be tendered as new or fresh evidence. He suggested the material raised concerns in relation to memory being created of past events wrongly believed by the complainant to have occurred. He said that whether this was the case would became apparent if access could be obtained to the medical records from Richmond Clinic. No such records were tendered at the trial and none were sought to be produced on this application.
[98]
(ii) Linda Brandt
Ms Brandt's affidavit and police statement annexed to her affidavit related to the events the subject of Count 78. In her statement, she said she knew WG well and that he trained her daughter. She said she attended the National Cross Country Championships in Nowra on 29 August, and that she had booked a house at which she and some of the athletes, including the complainant, stayed. She said that WG did not stay at the house.
In her affidavit, Ms Brandt said that WG was one of the team managers for Queensland Athletics and would have been involved all day in ensuring the Championships were running to plan. She said she would have noticed if he had been absent for any length of time.
She said she could not recall the complainant being absent from the event at all. In her statement she also said that on the night of 29 August the complainant stayed with her and that there was a barbeque. She said that WG came over for the barbeque.
In written submissions filed for WG, it was said that the significance of Ms Brandt's evidence was that the complainant gave evidence that after the cross country event on 29 August 2009, WG drove her away in a minibus and sexually assaulted her.
The Crown submitted that Ms Brandt's evidence could not exclude the possibility that WG had access to a minibus and took the complainant away for a short time. It was noted that WG's evidence was that he had a minibus but did not take it with him to Nowra. Trial counsel for WG, Mr O'Sullivan, said in his affidavit that he took the view that Ms Brandt did not have anything to add over and above other witnesses like Ty Chapman.
[99]
(iii) JG
JG, the complainant's younger brother, stated in an affidavit that the shed was used to store firewood all year round. He said that there was no door. He said that in late 2011 when he was 14 he was asked to clear the shed out, and that there were no tools, parts of tools or items of clothing in the shed at the time. He said that if the tools or underwear said to be there were in fact there, he would have noticed them.
JG said that the complainant never complained to him about any sexual assault, did not react with fear around the shed and seemed to love going in the water at the creek.
He also said that there were no times when the complainant was absent overnight or for a few days, when he did not know where she was.
The Crown pointed to the fact that the evidence of JG was similar to that given by WG and CG. It was submitted that the evidence relied on the opinion of JG that had the handle or the underwear been anywhere in the shed, he would have seen them. It was submitted that the items were small and were likely to have been regarded as little more than detritus.
[100]
(iv) Casey West
Ms West in her affidavit said she went to school with the complainant from 2004 to 2005 and became close friends with her. She said that she and the complainant were close friends from the age of 11 until just before the complainant went to Doha.
Ms West said she stayed at The Channon on a number of occasions in 2004. She said that while she was at The Channon there was no occasion when the complainant was absent overnight or for a period of days. She stated that the complainant never showed fear of the shed or the creek. She described the relationship between WG and the complainant and KG and the complainant as "fantastic".
The Crown submitted that the applicant had not advanced any reason why Ms West's evidence was significant, or how it would satisfy the Court of WG's innocence or cause it to entertain a doubt that the verdicts of guilty could not stand.
It should be noted that Mr O'Sullivan in his affidavit said he was aware of the existence of Ms West as a potential witness. He said he did not recall the reasons she was not called, but did recall that there were a number of witnesses who saw the complainant regularly and saw nothing untoward about her conduct.
[101]
Consideration
The principles surrounding the admission of new and fresh evidence were helpfully summarised by Kirby J in R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]:
"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at [61]-[64]; see also R v Sleiman [2003] NSWCCA 231 at [101]-[105]. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 at 674-675 by Mason J (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:
First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (at 512) per Barwick CJ).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259 at 301; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (at 518-519) per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR at 392 at 398-399; 20 A Crim R 244 at 248-249).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
Is the evidence fresh?
If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (at 395; 246) per Gibbs CJ), or 'plausible' (Mickelberg v The Queen (1989) 167 CLR 259 at 301; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)?
If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517))."
[102]
(i) Dr Nittis
I have dealt with the first report of Dr Nittis in dealing with ground 2. As I have indicated, the report failed to deal with a critical part of Dr Norrie's reasoning.
In her second report, Dr Nittis stated that "Dr Norrie theorised that damage to oestrogen receptors in the hymen during the pre-pubertal period results in thin or non-oestrogenised hymeneal segments allowing an examiner to determine when the injury occurred". She stated that Dr Norrie's theory may be correct, but that there was no research to support it. Dr Norrie did not contend there was any research to support her conclusion and indeed stated her conclusions were based on her experience (see [651] above). Dr Nittis' statement as to the absence of research does not in these circumstances undermine the evidence of Dr Norrie.
Dr Nittis concluded in her second report that there was nothing in the examination of the complainant which either supported or precluded the complainant's version of events. In my view, that conclusion does not raise a reasonable doubt as to guilt. The Crown case in large part depended on the credibility of the complainant compared to that of WG and KG. Whilst Dr Norrie did provide some support to the complainant's case, the conclusion of Dr Nittis (if accepted by a jury) that the examination neither supported nor precluded the complainant's version of events does not undermine that version such as to give rise to a reasonable doubt as to the guilt of WG.
Dr Nittis also criticised the examination by Dr Crehan. However, she did not state that the conclusions reached by Dr Crehan should not have been made. In these circumstances, her evidence on this issue does not raise a reasonable doubt as to the guilt of WG.
[103]
(ii) Dr John Roberts and Ms Lisa Celi
The evidence of Dr Roberts and Ms Celi apparently was sought to be relied on in support of a case of recovered or false memory. Such a case was expressly eschewed at the trial and was not suggested to the complainant or her treating psychiatrist Dr Hoey-Thompson. WG's case was that the allegations were false. Consistent with this case, it was put to Dr Hoey-Thompson in cross-examination that the account given to her by the complainant may not have been genuine. Dr Hoey-Thompson disagreed with this suggestion.
Having regard to the manner in which the case was conducted, there was no miscarriage of justice in declining to admit this evidence on appeal.
[104]
(iii) Linda Brandt
Ms Brandt's affidavit and statement did not exclude the possibility that WG had access to a minibus during the course of the National Cross Country Championships.
The complainant in her cross-examination on Count 78 agreed that she and her father flew down from Nowra, but said that he had access to a minibus as one of the Queensland managers. Ms Brandt did not deny this proposition.
The complainant also rejected the proposition that WG was in the company of Linda Brandt for the duration of the meet. Ms Brandt did not say that he was, but said that he was on the course with the teams throughout the day and attended to athletes on the cross country course. Her evidence could not exclude the possibility that WG was able to leave for a relatively short period of time and commit the offence.
In these circumstances, this evidence does not persuade me of WG's innocence on Count 78, nor does it raise a reasonable doubt as to the credibility or reliability of the complainant on this count or indeed on any of the other counts.
[105]
(iv) JG
JG stated that he cleaned the shed in late 2011 and saw no tools or items of clothing in the shed. Sergeant Carroll found the tools and underwear in the shed in February 2012. Presumably, it was sought to be inferred from that evidence that between late 2011 and February 2012, the items were planted there by the complainant at the time she was making her statement to Sergeant Hawdon. The suggestion is inherently improbable. The evidence of JG on this issue does not raise a reasonable doubt as to guilt.
So far as lack of complaint to JG is concerned, the complainant did not contend she complained to JG, which was not surprising having regard to his age at the time of the incidents. So far as fear of the shed was concerned, there was already conflicting evidence on this issue. WG and CG said that the complainant had no fear of the shed, whilst Fiona Rourke gave evidence to the contrary. The introduction of another witness on this issue, particularly one who was a young child at the time of the incidents in question, does not in my mind give rise to a reasonable doubt of WG's guilt. The same may be said of JG's evidence that the complainant did not fear the creek.
[106]
(v) Casey West
The fact that Ms West stayed at The Channon on a number of occasions in 2004 and did not recall an occasion when the complainant was absent overnight or for a number of days is not supportive of the proposition that the incidents did not occur. Of the incidents complained, of only one of them (Count 32) occurred in January 2004. Ms West stayed at The Channon for a period of four days during that month (2-6 January). Although she stated that there were many more dates when she stayed at The Channon, this general evidence does not provide any assistance, much less raise a doubt as to the guilt of WG.
For the reasons given in relation to the evidence of JG, Ms West's evidence that the complainant did not show any fear of the shed or the creek does not raise a reasonable doubt as to WG's guilt.
It follows that this ground of appeal has not been made out.
[107]
Ground 4: The jury verdict was unreasonable and inconsistent with the evidence.
[108]
a WG
In written submissions on behalf of WG, eight matters were relied upon to support the proposition that the verdict was unreasonable:
1. The "bizarre nature" of the allegations against WG, including "in relation to inserting garden tools into the complainant, tying her with rope or barbed wire, locking her up for long periods of time and requiring her to eat hot chillies".
2. That it was "contrary to human experience for a witness to have a genuine detailed memory of a very large numbers of incidents dating back to when the witness was five years old".
3. The fact that "the allegations emerged in the course of a psychiatric episode experienced by the complainant, in the course of which she was receiving treatment and counselling which may have caused her to create and/or elaborate upon memories which were not objectively accurate, even if they were genuinely believed".
4. That "although the offences took place over many years", there was no complaint until 2010. This was said to be despite the complaint of the assault in Doha and the complainant's denial to counsellors at the Mental Health Unit in 2010 that she had been sexually assaulted by her father.
5. That there was "little independent corroboration of the allegations".
6. The fact that no witnesses appeared to have observed physical injuries to the complainant, despite the fact that she claimed to have "been regularly physically and sexually assaulted" by WG.
7. That "a gynaecological examination undertaken by Dr Crehan in 2011 found no abnormalities".
8. That WG and KG denied the offences occurred.
In support of these submissions, senior counsel for WG emphasised the absence of corroboration of the complainant's account, and, in particular, the absence of corroboration by the people living with her. He submitted that if true, the matters alleged would have been "well and truly apparent" to the other occupants of the house. He referred to the account given by the complainant that she was locked in the shed overnight and frequently tied up with ropes and barbed wire whilst there. He referred to the incidents the subjects of counts 6, 10, 11 and 12, 19, 26 to 29, 30, 32, 49 to 52, 53 and 54, 55 and 57, and 65. He accepted that the complainant did not give evidence that the other children were always at the premises. However, he noted that there were other occasions where she gave specific evidence to that effect, referring to count 10 where she maintained AG and CG were there.
[109]
b The Crown
In written submissions, the Crown sought to deal with the eight matters relied on in WG's written submissions in support of this ground. In relation to the first matter, the nature of the allegations, the Crown submitted that when the detail of the complainant's evidence is considered, the details "resound as matters which have been recalled by the complainant because the complainant experienced them, not because she deliberately fabricated them".
So far as the extent of detail provided by the complainant was concerned, the Crown in written submissions pointed to the fact that the statement made by the complainant to Sergeant Hawdon was made over a considerable period of time. The Crown also noted that for each count, there was something that stood out to the complainant which became fixed in her memory - for example, a particular race event. The Crown emphasised that it was not the case that, when challenged in cross-examination, the complainant came up with details not previously mentioned.
The Crown submitted that there was no basis for the assertion that the treatment and counselling undertaken by the complainant may have caused her to create or elaborate on memories which were not objectively accurate. In that context, the Crown referred to the evidence of Dr Hoey-Thompson, and her opinion that the complainant's history was genuine (see [663] above).
So far as the delay in complaint was concerned, the Crown pointed to the fact that the complainant started to make complaints about sexual abuse in 2010. The Crown submitted that the delay in complainant could be attributed to the threats from her father, and to the complainant's psychological response to the trauma as diagnosed by Dr Hoey-Thompson. The Crown also referred to the evidence of complaint to Nicky Frey, when the complainant said that her father had touched her inappropriately at different times when he massaged her (see [518] above), and the evidence of Judy Wallis, PB and LA to which I have also referred above. The Crown referred to the evidence of AG that when she and the complainant were at Cabarita Beach the complainant told her that her father had been raping her. The Crown also referred to the evidence of Fiona Rourke and Senior Constable Ryan to which I have referred above.
In relation to corroboration, the Crown pointed to items of physical evidence found on the property (the tools, the underpants and the words scratched on the wood). The Crown submitted that the explanation for these items postulated by WG that the complainant came back in 2010 or 2011 and buried the items was completely implausible. The Crown also referred to the evidence in the complainant's diary to which I have referred at [235]-[243] and [274]. It was submitted that the evidence of AG, particularly the intercepted telephone call (see [594]-[595]), also corroborated the complainant's account.
[110]
Consideration
In Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 I summarised (at [84]-[85]) the principles applicable to an unreasonable verdict ground of appeal as follows:
"[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].
[85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice."
In considering this question it is also important to bear in mind the fact that the jury is the constitutional tribunal for dealing with contested issues of fact and the setting aside of a jury verdict is a serious step not to be taken without particular regard to the advantage enjoyed by the jury: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].
The primacy of the jury as the tribunal of fact is of particular importance in a case such as the present. The jury had the advantage of seeing the complainant give evidence over a considerable period of time (17 days) and also had the advantage of seeing WG and KG in the witness box. Great respect must be paid to the advantage which the jury had in those circumstances.
[111]
Ground 5: The trial judge erred in refusing to accede to the application of counsel made on 28 June 2016 that the jury be discharged
On 28 June 2016, towards the end of the jury's deliberations, the trial judge advised the parties' representatives that she had received an email containing a report dated 21 June 2016 from the court officer in charge of the jury that day. The trial judge made the following remarks:
"HER HONOUR: I received a phone call from the coordinator for the court [officers] this morning at 10 o'clock or so who she [sic] then forwarded me an email containing a report in relation to a court officer, and I hasten to add, not the present court officer. The salient parts of the email indicate that on 21 June 2016 - and I pause to interrupt myself to say that there does not appear to be any adequate reason for why I have only just been informed of this now, but nonetheless, the court officer reported, 'I am unable to remember the specific words spoken by the juror, but a juror used words to the effect of'
Sorry, and this was at 3.20pm on 21 June 2016 in the jury deliberation area, the quiet room:
'The juror felt they were being bullied by other jurors to conform to their view.
The juror felt that there were some jurors that were exhibiting behaviour of bullying so to make the deliberation period as short as possible so that they could return to their normal employment and personal lives.
The juror felt that there were some jurors who were deliberately prolonging the deliberation to receive the jury pay.
I am unable to remember the specific words I used.'
The 'I' being the court officer:
'But I replied to the juror with words to the effect that there are several options available to the juror.
You can write a note to the judge detailing the juror's concern.
You can have an officer come into the jury room and reiterate the standard judge's direction of respecting other juror's opinions and their points of view.
I pause there to say that no court officer should be doing that, but leaving that aside for the moment,
'As it was approximately 3.25pm, the end of the day, the juror could wait until tomorrow to see if a rest period, break away from the jury room and court environment, may have the issue resolve itself by the next day'.
The juror opted for the last option. The juror returned to the jury room to continue deliberation until [sic] the remainder of the day.
I reported the conversation and the juror's desired outcome verbally to the jury deliberation co-ordinator as soon as possible.
As directed by the jury deliberation co-ordinator I verbally reported the conversation and the juror's desired outcome to the court officer assigned to the jury.
The following day the juror thanked me for the help without any instigation by myself.'
So that essentially discloses everything in the report I received without disclosing the name of the court officer, but I repeat, it was not the present court officer.
Now, as I say, I only received notice of the content of this report ten minutes or so ago upon receipt of this email. A week has passed since 21 June 2016 and it appears the issue may have resolved itself. The jury has come into court each afternoon and I have put no pressure on them whatsoever. Each afternoon I have suggested that I'd see them the next day at 3.30 or so which might imply it would be completely reasonable if they took another day and each day I have said I am here if they need help.
Subject to your views, I do not propose bringing the jury in or saying anything. The jury would not know I have this report and a week has passed since that incident occurred last Tuesday afternoon. It was obviously appropriate to let you all know as soon as possible."
[112]
a WG and KG
In written submissions, it was contended on behalf of WG that the trial judge erred in not making inquiries to ascertain the nature of the alleged bullying behaviour, whether or not it was continuing, and whether it was affecting the jurors in the discharge of their duties. It was submitted that absent evidence that the problem had not affected the jury's deliberations and was not continuing, the trial judge should have discharged the jury.
Similar submissions were made in KG's written submissions.
At the hearing, senior counsel for WG referred to an affidavit of Jennifer Ramsay sworn on 14 August 2019, which attached the email which the trial judge referred to in her judgment, a further email of 23 October 2016 which was apparently from a juror, and a report from the sheriff made pursuant to s 73A of the Jury Act 1977 (NSW). No objection was taken to the admission of this evidence.
The email of 23 October 2016 contained the following remarks:
"Please pass this on to Judge Huggett.
…
Another member of the Jury informed me recently that you Judge Huggett mentioned the Jury went close to being dismissed because a member of the Jury was bullied. The Juror in question was a woman in her sixties married 6 times and a bloody halfwit who should of [sic] been dismissed at the earliest possible time in the trial. She was unfit to be on a Jury and payed [sic] by her own rules and the time she claimed she was being bullied she was actually being pulled into line by a few of the other Jurors after she suggested that you the Judge could wait five minutes while she sorted out her affairs."
The sheriff's report investigated the question of the alleged bullying among the jurors. The sheriff noted that one juror recorded that, on one particular day, the judge "had the jurors going in and out of the courtroom". The juror recalled that when they were summoned to return again, juror "J" (the juror who made the complaint) said, "I'm just going out to have a smoke". The report stated that other jurors were "incredulous" and told her, "You can't do that". The juror who was interviewed said, "'J' just wanted to run her own show". She was also told, "You can't hold up the judge". The juror said that "J" reported this to the court officer, saying she was bullied. The juror reported being was "flabbergasted" and "gobsmacked".
[113]
b The Crown
The Crown in its written submissions pointed to the fact that the matter was brought to the attention of the trial judge seven days after the incident was said to have occurred, and where every indication from the way the matter had proceeded since that time was that, if there was such an issue with the jury at the earlier point in time, it had been resolved. It was submitted that in those circumstances, the suggestion that the verdicts were not true verdicts was pure speculation. It was also submitted that the fact that the juror who complained had thanked the court officer was a clear indication the issue had been resolved.
The Crown pointed to a number of factors referred to by the trial judge which, it was submitted, supported her conclusion. Of particular relevance was the fact that the deliberative process in a criminal trial which involves sensitive personal issues will likely involve robust discussions, and may be exhausting or stressful. It may be added that this would be the position particularly in a case such as the present, having regard to the length of the trial and the factual matters involved.
The Crown in its written submissions also submitted that there was no need for the trial judge to make further inquiries, as the issue had been resolved. It was submitted that at that stage (28 June 2016, when the incident was brought to the trial judge's attention), there was no need to revisit the matter.
[114]
Consideration
Webb involved a trial for murder. On the first day of the summing up one of the jurors gave a bunch of flowers to a person at the court with a request that they be given to the deceased's mother. The juror apologised. The judge declined to discharge the jury but directed they have regard only to the evidence and consider it in an objective manner. A majority of the High Court dismissed an appeal from that decision. Mason CJ and McHugh J (at 53) stated the test to be applied in the following terms:
"It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
In Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, a note was discovered in the jury room after a verdict had been entered which suggested unlawful coercion of a member of the jury. The Court stated (at [54]) that "[i]f there is evidence capable of belief which gives rise to reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial. That breach casts a shadow of injustice over the verdict". After citing with approval the passage from Webb to which I have referred above, the Court made the following remarks (at [55]):
"The other members of the Court agreed with the test so formulated, although Brennan and Deane JJ differed from the majority in their view of the result of the application of the test in that case. This test should have been applied to determine whether a miscarriage of justice occurred in this case. If the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror has not discharged his task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question. If the shadow of injustice over the verdict could not be dispelled, the proper course for the Court of Appeal would have been to allow the appeal, quash the conviction and order a new trial."
[115]
Conclusion
In the result, WG should be granted leave to appeal against his conviction but the appeal dismissed.
[116]
WG's sentence appeal
I have had the advantage of reading the judgment of Fullerton J in draft. I agree with her Honour that none of the grounds of appeal have been made out and that whilst leave to appeal should be granted, the appeal should be dismissed. I would only add the following remarks.
So far as the first ground of appeal on sentence is concerned - error in failing to give any weight to WG's good character - Fullerton J (at [1486] below) has set out the relevant parts of the judgment said to constitute the error. It seems to me that in the passage cited the sentencing judge had regard to WG's prior good character but determined that in the particular circumstances of the case it did not entitle him to any degree of leniency. The sentencing judge thus dealt with the matter in accordance with the passage from the judgment of McHugh J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [25], referred to by Fullerton J. She took into account the fact of WG's prior good character but in the particular circumstances of the present case gave it no weight.
In relation to the second ground of appeal on sentence - that the sentence was manifestly excessive - Fullerton J noted (at [1497] below) that it was submitted in relation to the indicative sentences in the present case that for "this Court to impliedly sanction an indicated sentence so close to the maximum penalty available for a particular offence, that would have the unintended effect of depriving another sentencing court of the opportunity to indicate an equally heavy indicated sentence for an offender whose offending was aggravated in ways additional to the features of aggravation found by the sentencing judge to apply in this case". That submission is contrary to what was stated by the High Court in R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[19] that the offences may be so grave as to warrant the maximum penalty notwithstanding it is possible to imagine an even more serious instance of the offence, and a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called (those which warrant the maximum penalty). The sentencing judge in my opinion did this.
Subject to these matters, I agree with the reasons of Fullerton J and the reasons for her conclusion that leave to appeal against sentence should be granted, but the appeal dismissed.
[117]
KG's conviction appeal
I agree with Fullerton J for the reasons given by her Honour that grounds 1 to 7 and 9 have not been made out.
So far as ground 8 - that the jury's verdict was unreasonable and cannot be supported having regard to the evidence - is concerned, I have recorded the evidence at the trial including evidence relating to the counts against KG and will not repeat what I have set out. I have also taken into account the evidence of KG, the character witnesses who were called on her behalf and importantly, the evidence of her daughter CG.
It is important in considering this issue that it was not sufficient for the jury to convict for them to be satisfied beyond reasonable doubt that KG acquiesced in the conduct of WG and/or sought to conceal his offences. For KG to be convicted the jury had to be satisfied beyond reasonable doubt that she in fact committed the offences charged against her.
The submissions made to the jury on behalf of KG in counsel's closing address at the trial were summarised and adopted by senior counsel for KG in written submissions on this appeal. It is unnecessary to set them out in detail. They referred to the fact that KG was the person who took the complainant to a mental health facility, something it was said was inconsistent with her being guilty of the offences alleged in that it exposed KG to the risk of disclosure of the offences. The jury was also referred to the letters written by the complainant to KG in affectionate terms, also said to be inconsistent with the allegations. The evidence of KG denying the allegations was also relied on, as was her evidence of her attitude to her daughter's diet and health which was said to be inconsistent with what was alleged.
The written submissions sought to question the reliability and credibility of the complainant, describing her as a "troubled and mentally unwell" person. It was also submitted that the alleged misconduct was quite inconsistent with apparently attempting "to keep a team of budding young athletes in a condition to win national and international sporting honours". Reliance was also placed in the written submissions that KG's comments that "she must have come out here and buried those just like the angel" when the tools were discovered on the premises, showed that KG believed the complainant had buried the tools whilst in a disturbed state. It was also stated the complainant's evidence was "outside the range of even abnormal human experience".
[118]
KG's sentence appeal
For the reasons given by Fullerton J, leave should be given to KG to appeal against sentence but the appeal dismissed.
[119]
Orders
In the result, I would make the following orders:
[120]
WG
1. Grant the applicant leave to appeal against conviction.
2. Dismiss the appeal.
3. Grant the applicant leave to appeal against sentence.
4. Dismiss the appeal.
[121]
KG
1. Grant the applicant leave to appeal against conviction.
2. Dismiss the appeal.
3. Grant the applicant leave to appeal against sentence.
4. Dismiss the appeal.
FULLERTON J: I have read the judgment of the Chief Justice and agree that WG's appeal against conviction should be dismissed.
I agree with the Chief Justice's reasons for concluding that grounds 1, 2 and 5 have not been made out. I also record my agreement with Fagan J's additional reasons at [1592]-[1607] for rejecting ground 2. As his Honour noted, ground 3 was not pressed. I also agree with the Chief Justice that ground 4 should be dismissed.
Since ground 8 of KG's conviction appeal also contends that the jury should have had a reasonable doubt about her guilt on each of the thirteen counts upon which she was convicted, and that verdicts of acquittal should be entered for each of them (a ground of appeal which is identical to ground 4 of WG's appeal), after considering the remaining grounds of KG's conviction appeal, I will undertake a review of the sufficiency and quality of the evidence adduced in the trial of each of the applicants and give my reasons for agreeing with the Chief Justice that ground 4 of WG's conviction appeal should be dismissed and my reasons for concluding that ground 8 of KG's conviction appeal should also be dismissed.
WG and KG both seek leave to appeal their respective aggregate sentences. Both sentence appeals will be dealt with later in this judgment.
[122]
KG's conviction appeal
KG relied upon nine grounds of appeal. It is not necessary to set them out in detail. Leaving ground 8 to one side, of the remaining grounds, three are expressed either in precisely the same terms as grounds 1, 2 and 5 of WG's conviction appeal or raise substantially the same issues.
[123]
Grounds 5 and 6
As framed, grounds 5 and 6 of KG's conviction appeal raise the same issue as ground 2 of WG's conviction appeal, namely that a substantial miscarriage of justice resulted from the failure of the Crown to call Dr Nittis in WG's trial. It was necessary for KG to predicate grounds 5 and 6 of her appeal in that way since the evidence to which Dr Nittis's evidence was said to be relevant was not led by the Crown in her trial.
Although KG filed separate submissions in support of grounds 5 and 6, those submissions did not raise any issue of fact or law which requires consideration additional to the matters considered by the Chief Justice at [937]-[987]. In particular, nothing was advanced in writing to support the submission that although Dr Norrie's evidence was not led by the Crown in KG's trial, a substantial miscarriage of justice resulted from the failure to call Dr Nittis in the trial of her co-accused.
On the hearing of the appeal, Mr James QC expressly adopted the oral submissions Mr Stratton SC had advanced in support of WG's second ground of appeal. Those submissions were considered in detail by the Chief Justice at [955]-[962]. Mr James did not seek to develop his written submissions, save as to acknowledge the correctness of the Crown's submission that KG's trial counsel did not request that the Crown call Dr Nittis in her trial and that he did not cross-examine Dr Norrie.
In those circumstances, I would dismiss grounds 5 and 6 of KG's conviction appeal.
[124]
Ground 9
Ground 9 of KG's conviction appeal is identical to ground 5 of WG's conviction appeal in that senior counsel who appeared at KG's trial also applied to have the jury discharged and on substantially the same basis as advanced by trial counsel for WG.
For the reasons given by the Chief Justice in dismissing ground 5 of WG's conviction appeal, I am not of the view that the trial judge's discretion miscarried in refusing to discharge the jury. Accordingly, I would dismiss ground 9 of KG's conviction appeal. I would wish only to add that in her Honour's judgment delivered after verdict she set out, in detail, the circumstances in which the application to discharge the jury was made. No error is revealed in her analysis of the evidence or in the analysis of relevant principles in any way suggestive that the exercise of her discretion to refuse the discharge application miscarried.
The remaining grounds advanced by KG on her conviction appeal are as follows (adopting the same numbering as in the notice of appeal):
1. Notwithstanding the ruling of this Court before the joint trial commenced (KG v R [2015] NSWCCA 33) that the trials of the applicant and the co-accused should proceed jointly, as events turned out, the joint trial produced such unfairness to the applicant that a substantial miscarriage of justice occurred.
2. The multiplicity of charges tried together was so oppressive that the conviction of the applicant amounted to a miscarriage of justice.
3. The learned trial judge erred in failing to provide a divided summing-up, divided jury deliberations and divided verdicts, as referred to by this Court in KG v R [2015] NSWCCA 33 at [42].
4. The trial judge erred in ruling that photographs of the applicant and her children could be regarded as 'tendency evidence' against her, as possibly showing 'a sexual interest in her daughters when they were aged between eight and twenty years'; and by permitting this evidence to be put before the jury in the prosecution case on this basis.
5. Before giving evidence in the trial, the complainant JG had (in the course of therapy related to the allegations in the prosecution case) been subject to 'sand-tray therapy' and 'mandala therapy', the nature and extent of which was not disclosed whereby there has been a miscarriage of justice. Leave is sought to tender fresh or new evidence from Dr John Roberts, psychiatrist, whereby doubt is cast on the reliability of the evidence of JG.
8. The verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence.
[125]
Grounds 1, 2 and 3
On the appeal, senior counsel for KG invited the Court to deal with these three grounds collectively. In counsel's submission, KG's trial miscarried because the risk of prejudice that underpinned her unsuccessful application for a separate trial came to pass in the way the trial was conducted.
In the Crown's written submissions a number of exchanges between the trial judge and trial counsel were extracted where the structure of the summing up was discussed. In the result, there was no practical opposition to the course her Honour proposed, namely a combined summing up without inviting the jury to deliver separate verdicts. On the appeal, counsel for KG did not seek to engage with that fact. Ground 3 will be dealt with separately below.
KG is not precluded from contending on appeal that the joint trial with WG resulted in a miscarriage of justice by focusing on what actually happened in the joint trial (see Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 at [236]).
Essentially, the complaint that is comprehended by all three grounds of appeal is that evidence which was ultimately admitted solely against KG in her trial was demonstrably different from, and significantly weaker than, the evidence the Crown adduced in WG's trial, making what is said to be the weaker case against KG "immeasurably stronger". For that reason, it is said her trial was productive of a miscarriage of justice.
By way of example, the evidence that alleged WG inserted tools of various descriptions in JG's vagina (the particulars of 19 counts involving breaches of both s 66A and s 61J(1) of the Crimes Act), and the evidence adduced at his trial that some of those tools were found by police buried in various locations nominated by JG, was not tendered in KG's trial. Counsel also sought to emphasise that it was no part of the Crown case that KG was aware of the level of physical violence WG inflicted on JG in the course of having sexual intercourse with her.
While that might be so, as the Court of Criminal Appeal observed in KG's unsuccessful s 5F application, it was also the Crown case that KG was aware that her husband was having sexual intercourse with JG when aged 10 and then later at the age of 16, since her knowledge of that fact was part of the evidence relied upon by the Crown in proof of her guilt of counts 13 and 25 on the indictment.
[126]
Consideration
I note that the trial judge expressly brought to the attention of KG's counsel that despite this Court's ruling on the s 5F application that the trial should proceed as a joint trial, an application for a separate trial of KG remained open and could be brought at any stage of the trial if any circumstances changed. No further application for a separate trial was made.
In addition, as I have noted, no criticism could rationally have been made of the content of her Honour's direction where both the written and oral directions were comprehensive and clear, legally accurate and thoughtfully structured to ensure that each of the accused was afforded the procedural fairness to which they were each entitled in a joint trial. The implied submission that the jury could not or did understand the directions, and could not or did not comply with them, is a submission that cannot be accepted. The fact that the jury was not able to reach a unanimous verdict upon counts 87, 88 and 89 allows for the almost irresistible conclusion that the jury did consider separately the evidence relating to each count and did not impermissibly decide KG's guilt on the 13 counts which they were satisfied were proved beyond reasonable doubt overborne by the multiplicity of counts charged against WG or the utilisation of any impermissible reasoning based on the evidence adduced in proof of his guilt.
The complaint advanced on the hearing of the appeal that the highly prejudicial nature of WG's physical and sexual abuse of JG would blind the jury to having any reasonable doubt they may otherwise have had as to KG's complicity in respect of the offences with which she was charged (either with WG or where her offending was proximate in time to his offending) was fundamental to the application for a separate trial. It was addressed at [15]-[16] by the Court in KG v R [2015] NSWCCA 33.
On the hearing of the appeal, nothing was identified in the evidence that was adduced at trial which extended beyond the evidence which it was anticipated would be adduced in the joint trial, although not admissible against KG. In relation to this issue, Ward JA stated that "strong directions can and would be expected to be given to the jury so as to quarantine the counts of sexual violence (such as those given by Bell J when her Honour was sitting in the Supreme Court in Darwiche v R [2011] NSWCCA 62)". Again, the fact that no complaint has been made about the adequacy of the trial judge's directions tells against there being the miscarriage of justice for which KG contends.
[127]
Ground 4: The wrongful admission of tendency evidence
Objection was taken at the trial to the Crown seeking to rely upon what were said to be sexualised photographs of JG and her two sisters, namely six photographs in the format of a 2005 calendar which included KG also posing in a sexual way, as capable of establishing that she had a particular state of mind, namely a sexual interest in her daughters when they were between the ages of 18 and 20.
Trial counsel for KG submitted that these photographs, together with other photographs tendered by the Crown for a tendency purpose, simply were not capable of establishing the tendency for which the Crown contended. In his submission, viewed objectively, the photographs were not of a sexual nature and not taken for someone's sexual interest or which would cause or satisfy or arouse or in any way be linked to any sexual interest KG may have in her children.
The trial judge admitted the photographs in the 2005 calendar as tendency evidence. They became Exhibit 42 at the trial. (They were also admitted in WG's trial for the same tendency purpose as to which no objection was taken.)
The Crown also relied upon a further 48 naked or semi-naked images of KG and her daughters which were taken by a professional photographer on 21 July 2008 at The Channon for the same tendency purpose. They were also admitted as tendency evidence. They became Exhibit 43 at the trial. (They were also admitted in WG's trial for the same tendency purpose as to which no objection was taken.)
Of a further fifteen images of JG in a variety of sexual poses found on computer equipment seized from the family home (and apparently taken by WG), five images were tendered against KG as tendency evidence, without objection. The remaining ten images were tendered against WG, also without objection. These photographs became Exhibit 44. The five photographs to which no objection was taken included three photographs of JG wearing a bra, underpants and a jacket with leopard skin edging and two were photographs of JG naked holding her mother's guitar. These photographs became Exhibit 44 at the trial.
The jury were directed as to how they might use the various categories of exhibited photographs in reasoning to verdicts in respect of those counts where KG was charged with indecently assaulting her three daughters and those counts which alleged she had sexual intercourse with JG. There is no challenge to the adequacy of the trial judge's directions. It was submitted on KG's behalf on the appeal that her Honour's reasoning was flawed in admitting the evidence for a tendency purpose.
[128]
Ground 5: (i) Before giving evidence in the trial, the complainant JG had (in the course of therapy related to the allegations in the prosecution case) been subject to 'sand-tray therapy' and 'mandala therapy', the nature and extent of which was not disclosed; whereby there has been a miscarriage of justice; (ii) leave is sought to tender fresh or new evidence from Dr John Roberts, psychiatrist, whereby doubt is cast on the reliability of the evidence of JG.
An argument not dissimilar to this ground of appeal was advanced by WG as support of ground 2 of his conviction appeal. The Chief Justice dismissed that ground of appeal and gave reasons with which I have expressed my agreement.
I am able to deal with this ground appeal in brief.
The evidence of Dr Roberts, which is said to be either fresh or new evidence is, in my view, neither fresh nor new, substantially for the reasons identified by the Chief Justice.
This evidence was not only available to KG at the time of the trial, it must be assumed it was not adduced for the sound tactical reason that it was considered by senior counsel who appeared at the trial as either irrelevant or of insufficient relevance to the issues at trial or the way counsel determined, on instructions, the trial would be conducted in KG's best interests.
I note that trial counsel has stated in his affidavit of 14 June 2019 (at paragraph 7) that:
We received instructions not to pursue the issue of repressed or recovered memory after the Crown had enquired whether or not KG was relying on that topic in her defence. I discussed the topic at court with KG and my instructing solicitor Mr Archbold and we received instructions to follow the course of not relying on that issue in her defence.
Furthermore, as the Crown's written submissions make perfectly clear, there is no basis for the implied assertion that the Crown was in breach of its duty of disclosure when the information about the "therapies" was in the subpoenaed material from Richmond Clinic which was available to both parties, and where there was nothing to suggest that the Crown had any relevant additional information which was withheld. (The Crown read an affidavit from Emma Phillips, solicitor, which extracted all the references in the subpoenaed material which referred to the "sand tray" or "mandala" therapy.) Furthermore, nothing was put to contradict the Crown's contention that Dr Roberts specifically referred to and commented upon "sand tray" therapy in his report of 26 February 2016 which was prepared prior to the trial as an additional basis allowing for the conclusion that those who represented KG at trial were aware of the issue and elected not to pursue it, including calling Dr Roberts to give his commentary about it.
[129]
The indictment and the verdicts returned on that indictment
[130]
WG
On 31 March 2016, WG and KG were arraigned in the District Court before Huggett DCJ on an indictment containing 89 counts. WG was charged with 73 counts (including counts which provided for verdicts to be returned as statutory alternatives) and KG with 16 counts.
Each of the 73 counts upon which WG was indicted involved the sexual and/or physical abuse of JG from the age of 5 in 1997 until the age of 19 in 2011.
JG was born on 10 February 1992. She was aged 24 at the time of the trial.
On 30 June 2016, the jury returned verdicts of guilty on each of the 73 counts charged against WG, none of which involved the available statutory alternatives.
On 27 October 2016, WG was sentenced to an aggregate term of imprisonment of 48 years with a non-parole period of 36 years to date from his arrest on 8 October 2013.
[131]
KG
Of the 16 counts upon which KG was indicted, 12 counts involved allegations of various forms of sexual offending against JG from when she was aged 8 in 2000 until she was aged 16 in 2009. Of the remaining four counts, two counts alleged acts of indecency contrary to s 61O(1) of the Crimes Act involving KG's eldest daughter, AA, when she was aged 12 and two counts of indecency against her middle daughter, CG, when she was aged 11.
On 30 June 2016, the jury returned verdicts of guilty on 13 of the 16 counts laid against KG. The jury returned verdicts of not guilty on counts 87 and 88 (two of the four counts alleging an act of indecency of AA and CG contrary to s 61O(1) of the Crimes Act) but verdicts of guilty on counts 16 and 17, being two counts also alleging a breach of s 61O(1) and involving the same two children but committed some years earlier. The jury also returned a verdict of not guilty on count 89 which alleged an act of indecency contrary to s 61O(1) involving JG, committed at the same time as the offences charged as counts 87 and 88 involving AA and CG. These three counts concerned an incident as to which only AA gave evidence. She described her mother demonstrating to each of her daughters how to locate a clitoris after which she directed them to locate their own clitoris and to masturbate themselves.
On 27 October 2016, KG was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 11 years. Her sentence was ordered to date from the date of verdict. She had been on bail since her arrest on 13 March 2013.
[132]
The Crown case against each of the accused in broad outline
JG was the principal Crown witness in the joint trial of the accused.
JG gave evidence she was one of four biological children of her parents. She has two older sisters, CG and AA, and a younger brother, JG. She said that from when she was about age two and a half the family lived at a house in a semi-rural location called "The Channon", 25km north of Lismore. She said her parents separated for a period of time between 2000 or 2001, when she lived with her mother but would see her father on occasions. When she was aged 11 the family moved to the Gold Coast during the week but would stay at The Channon on weekends. Between 2006 and 2008, JG and her sisters were home schooled.
JG gave evidence that both her parents were employed from time to time as schoolteachers and both coached her and her sisters in athletics. Her father had the dominant coaching role. JG competed at a state and national level from about age 7 and enjoyed considerable sporting success. In 2009 she competed internationally. In cross-examination by counsel for WG, JG said that she had ambitions of becoming an elite athlete under the influence of her parents and that she trained for different athletic events, including triathlon and various distance running events, with her father as her coach.
JG gave evidence of multiple occasions when her father physically and verbally abused her due to her failure to achieve the goals he set for her. She gave evidence that although she trained in a squad, her training partners were mostly males and not close friends. She said her only childhood friend was Fiona Rourke who lived near The Channon. (She was called as a witness in the Crown case. Her evidence is summarised in the judgment of the Chief Justice at [476]-[487].) In cross-examination JG said she could not recall her father encouraging her to talk to other coaches or other elite athletes.
Over 17 sittings days, JG gave evidence of her father's sexual abuse of her over 14 years, and his physical assaults, both before, during and after his sexual abuse of her.
She also gave evidence of her father's violent and controlling conduct, and of his repeated physical and verbal abuse of her and, on occasions, of her mother and siblings. Her evidence was supported by the evidence of AA, one of her sisters called by the Crown. A number of other witnesses attested to WG's controlling and aggressive behaviour towards his children and their perception that the children were terrified of him. This evidence was admitted as relationship evidence. It was the subject of direction from the trial judge. There was no challenge to the evidence or the adequacy of the directions.
[133]
The offences for which WG was convicted and sentenced
Of the 73 counts upon which WG was convicted, 66 alleged various forms of sexual intercourse with JG, on occasions with multiple acts of intercourse in the course of the one assaultive incident.
Of the 66 counts alleging sexual intercourse with JG, 16 involved allegations of sexual intercourse with her as a child under the age of 10 contrary to s 66A of the Crimes Act; 41 counts alleging sexual intercourse with JG without consent in circumstances of aggravation, namely under WG's authority contrary to s 61J(1) of the Crimes Act; and 7 counts, charged under either s 66C(2) or s 66C(4) of the Crimes Act, alleging sexual intercourse with JG as a child above the age of 10 years and under the age of 14 years or of the age of 14 years and under the age of 16 years, also in circumstances of aggravation.
[134]
The use of tools
In respect of the 66 counts which alleged sexual intercourse, 19 counts involved penetration of JG's vagina with a tool or another implement, including a pair of old scissors. These tools were referred to in the trial alphabetically from "Tool A" to "Tool J". JG sketched the general shape and contour of the tools in the course of being interviewed by police between November 2011 and January 2012. The various sketches were exhibited at trial and identified by JG in the course of giving her evidence.
The first tool used by WG included an "L-shaped" metal tool which became known as "Tool A". JG was aged 8 when it was used to penetrate her vagina for the first time (count 11 on the indictment). That tool was used in the same assaultive incident in which the scissors, "Tool C", were used (see incident 8 referred to below at [1235]-[1240] - count 12 on the indictment). The last offence which involved the use of any tool was when JG was aged 18 (count 82 - see incident 33 referred to below at [1290]-[1293]). A spanner was forced into her vagina on that occasion. It was referred to as "Tool H" in the trial.
[135]
The finding of tools
On 29 February 2012, during the course of the police investigation following JG's formal complaint to police about the sexual and physical abuse she had been subjected to by her parents since she was a young child, The Channon and its surrounds were searched under warrant. JG attended with police and participated in a video recorded "walk through" in the course of which she nominated four locations where she said she had buried a number of items. These locations were marked for the attention of crime scene officers. JG left the property before the areas were searched.
Upon the attendance of crime scene officers a large number of photographs were taken, inclusive of a photograph taken of part of what was described as a "U-shaped clamp" ("Tool G" at the trial and photographed in situ in photographs 1, 8, 9 and 10 in Exhibit 55) and a long metal screw ("Tool K" at the trial photographed in photograph 13 of Exhibit 55 and in situ in photographs 11 and 12 of that exhibit). Both items had been located, using a metal detector, buried 5cm into the earth in one of the four locations JG had identified to investigating police. Roots were observed growing through the soil in the area where the items were unearthed. The colour of the soil was uniform at those sites allowing for the conclusion that the soil had not been recently disturbed.
Professor Robert Fitzpatrick, a certified soil scientist, undertook an analysis of the two metal objects ("Tool G" and "Tool K") and samples of the soil in which they had been buried. He prepared a report which became Exhibit 67 in the trial. He also gave evidence in the Crown case. He concluded that the corrosion coating the objects was likely to have been formed in situ in the control soil which he concluded, having regard to the time taken to deposit the thick corrosion found in particular on the underside of the L-shaped tool, that both metal objects were likely to have been buried and left undisturbed for more than three years.
During the search KG arrived with her daughter CG. KG was informed that police had located some items at various locations JG had pointed out and that police believed these items had been used to sexually assault her. KG expressed the belief that her daughter "must have come out here and buried those just like the angel". When KG was later advised that police had found a pair of girl's underpants in the shed and asked whether KG would be prepared to speak to police she said, "No comment".
[136]
Incident 1: Between 1 April 1997 and 31 July 1997
Counts 1 to 3 on the indictment, laid under s 66A of the Crimes Act (sexual intercourse with a child under the age of 10 years), attracted a maximum penalty of 20 years' imprisonment. The sexual intercourse the subject of these three counts involved digital penetration, followed by vaginal penetration and fellatio. JG was aged five.
JG gave evidence that this was the first occasion when her father sexually assaulted her. Her mother was in Brisbane having given birth to her youngest brother who was born premature. He was born on 1 April 1997. She gave evidence of the sexual assaults occurring in her bedroom at night sometime between 1 April 1997 and July 1997 when her mother returned from hospital.
JG gave evidence that WG penetrated her vagina digitally first and when his penis entered her vagina she felt severe pain and a ripping feeling. She said when he put his penis into her mouth she thought he was "weeing", not appreciating that he was ejaculating. She said her father did not say anything to her during the assaults and she said nothing to him.
JG's evidence of having been subjected to repeated acts of vaginal sexual intercourse by WG from the age of five was supported, on the Crown case, by the evidence of Dr Christine Norrie, a forensic clinician and consultant of the Child Protection Unit at the Children's Hospital at Westmead. Her evidence was summarised in detail in the judgment of the Chief Justice at [633]-[654].
Dr Norrie gave evidence that upon an ano-genital examination of JG conducted in August 2012, sections of her hymen were revealed to be thin and had failed to oestrogenised, indicating that her hymen was damaged before puberty. In addition, two full-thickness transactions of the hymen were identified. Dr Norrie gave evidence that these sites of injury were consistent with the infliction of blunt force trauma of sufficient severity that the viscoelastic, or stretching properties, of the hymenal tissue was exceeded.
[137]
Incidents 2 to 12
In addition to counts 1-3, counts 4-14 and 19-21 (13 offences in total) were also laid pursuant to s 66A of the Crimes Act. These counts involved various acts of digital, vaginal and oral intercourse committed against JG in eight discrete episodes from when she was aged 5 to aged 9.
[138]
Incident 2: Between 1 July 1997 and 24 December 1998 - JG aged 5
Incident 2 (comprising count 4) occurred between 1 July and 24 December 1997 after JG's mother had returned from Brisbane following the birth of her younger brother.
After returning home after school on the school bus JG recalled her father disciplining her which involved grabbing her by the hair and dragging her along the ground to a creek which ran through the property. After pulling her into the creek and holding her head under the water he took her back to the house. She then followed him into the main bedroom where, after removing his clothes, he directed JG to rub his groin area. After a while he directed her hands onto his penis after which he told her to put his penis into her mouth. She said she felt like choking which caused her father to get angry. He then grabbed her by the hair and threw her onto the ground.
[139]
Incident 3: Between 1 December 1997 and 9 February 1998 - JG aged 5
Incident 3 (comprising count 5) involved another occasion when WG physically punished JG for some indiscretion. She was aged five. On this occasion he grabbed her by the hair and arm and dragged her to a shed which was referred to a "chook pen" in a diagram of the property which JG agreed was consistent with the location of various structures and land forms on the property. This became Exhibit 1 in the trial. The shed was photographed during the execution of the search warrant in 2012.
JG was on her knees in the shed when WG removed his shorts and stood in front of her. She said she put his penis in her mouth because she knew this was what she was expected to do. He ejaculated in her mouth. She recalled spitting the ejaculate onto the ground because she did not want to swallow it. She remembered that her father was wearing red socks because she remembered looking at his feet to avoid looking at his face.
This offence was the first occasion amongst many when JG was removed by her father from the garden or the house or the creek to the shed and sexually and physically assaulted. The last offence committed in the shed was when JG was aged 17 (incident 42 - count 82).
[140]
Incident 4: Between 1 April 1988 and 24 December 1988 - JG aged 6
Incident 4 (comprising count 6) was the first occasion when, after WG sexually assaulted JG in the shed by having her fellate him (on this occasion after he had insisted that she stand in the freezing creek water), she was tied with rope around her wrists and detained, by her reckoning, over two nights at least. She was aged six at the time of this offence. She said once it was dark on the first night WG brought some water in a cup to her. She said she needed to urinate and, although she was too scared to ask permission, in her father's absence she urinated on the floor of the shed. When he returned and discovered that she had urinated she was struck across the face. She gave evidence that "after it been dark three times" WG untied her and took her back to the house. She said although she felt weak she went to school the next day.
On the appeal it was submitted on WG's behalf, as had been submitted on his behalf at trial, that JG's account of having been tied up with barbed wire and on occasions left overnight in the shed, and sometimes over many nights, in circumstances where there was no evidence of her absence having been noted within the family home and with no one inquiring as to where she had been when she reappeared, and no evidence of physical injuries from the various methods of her containment, was so wholly incredible as to justify the jury having a reasonable doubt not only as to WG's guilt on those counts which involved her being tied up and left in the shed but on all counts on the indictment where he was alleged to have sexually or physically abused her.
[141]
Incident 5: Between 1 April 1988 and 24 December 1988 - JG aged 6
Incident 5 (comprising count 7) was the first time WG sexually assaulted JG in her bedroom since the assaults the subject of the first incident. She said she woke to find WG on top of her and her pyjamas removed. She gave evidence of feeling pain in her lower stomach and vagina as WG's penis entered her vagina and moved back and forth. She said she could remember his movements getting faster and him breathing on her face and neck. She said the following day she woke and had blood between her legs and on the sheets.
[142]
Incident 6: Between 17 September 1999 and 30 September 1999 - JG aged 7
Incident 6 (comprising counts 8 and 9) occurred some days after JG had competed for the first time in a 100m running event at Olympic Park in Sydney. She gave evidence that a few days after returning home her father was angry with her and her sisters and that her mother was upset and crying. She said later on that day she was taken to the creek where her father pushed her over and started kicking her in the back and head before dragging her by the hair down to the creek and into the water where he held her underwater for what she described as "the longest time she could remember". When she returned to the house KG asked her why she was wet. She told her mother she had been for a swim in the creek.
Later that night that her father sexually assaulted her in her bedroom. Count 8 involved an allegation of cunnilingus followed by penile penetration charged as count 9. She said her father ejaculated after which he wiped his penis with her sheets.
[143]
Incident 7: Between 17 June 2000 and 1 July 2000 - JG aged 8
Incident 7 (comprising count 10) was a further allegation of penile penetration committed in JG's bedroom. On this occasion she said she heard WG coming down the hallway towards her bedroom and that she took her pyjama pants off so that she was naked. She also said she parted her legs because she knew what he was there to do. She said the penetration did not hurt as much as other times but her father was breathing heavily but quietly. He also ejaculated on this occasion.
JG was able to be relatively precise about the date of this offence, it being the night before or a few nights before attending an athletics competition at Eastern Creek. She said she travelled to Sydney with her two sisters and her father but she felt quite sick in the stomach and her legs were sore. She ran 32nd in the race after which her father took her away from other people at the race track and kicked her stomach and called her weak. Upon arriving home in the evening she was told to stay in the car after which her father forcibly removed her to the shed. She said her father did not sexually assault her on that occasion. She said when he returned it was light and her father was still angry with her. She promised she would never perform badly again.
[144]
Incident 8: On or about 25 December 2000 - JG aged 8
Incident 8 (comprising counts 11 and 12) have been referred to above at [1208]. They were the first occasions when tools were used to effect penetration of JG's vagina.
JG was able to recall this incident referable to Christmas Day 2000 which was spent at her aunt's home on the Gold Coast.
She gave evidence of waking up during the night to get a glass of water and seeing her father lying on the couch with a blanket over him. She said he lifted up the blanket and she went under it after which he removed his penis from his underwear and she performed fellatio until he ejaculated in her mouth.
She gave evidence that the following day, when she was required to go with her father and her two sisters to the Gold Coast hinterland for the day, she resisted and became very upset. She said she was forced to go. When they arrived her father became angry and pulled her hair and slapped her across the face because of the way she behaved in the presence of others. When the weather turned the family returned to The Channon.
On arrival JG was taken to the shed where her wrists were tied with rope and barbed wire was placed across her body. The following morning her father removed the barbed wire after which he forced her mouth open and inserted some hot chillies which she was made to chew and swallow. WG said to her, "If you embarrass me like that again I'll lock you up in here for ever and let you rot. Do you understand?". He then left, returning with the "L-shaped tool", a spanner and a pair of scissors. She described the "L-shaped tool" being forced into her vagina while she was lying on the floor of the shed. JG described the pain upon the insertion of the tool as "excruciating". She said she yelled out because of the pain. She said her father then picked up the scissors and after holding her vagina open with one hand she felt him cut her vagina which caused instant stinging pain. She remembered seeing a lot of blood and waking up later in the day in a lot of pain, still bleeding. She gave evidence that there was blood on her underpants so she kept them in her bedroom before burying them sometime later.
During the course of the execution of the search warrant in February 2012, a small pair of children's underpants was unearthed in the disused shed. They were photographed in situ (photographs 122-127 in Exhibit 55). A presumptive test for blood returned a positive result when applied to a visible red-brown stain on the inside crotch area, however a confirmatory test for blood returned a negative result. DNA testing was unable to confirm the presence of blood although a partial DNA profile was recovered with the same profile as JG. The evidence of a forensic biologist called by the Crown was that it was greater than 9.6 million times more likely to produce that profile if it originated from JG rather than an unknown and unrelated individual in the population.
[145]
Incident 9: On or about 31 December 2000 - JG aged 8
Incident 9 (comprising count 14) allegedly occurred whilst WG and KG were separated. JG said she was at home with her siblings and her father when he went looking for their mother taking the children with him in the car. They went to Lennox Head. KG could not be located. JG said when they got home she went to bed but woke later to find WG on top of her with his hands on her chest penetrating her vagina. He commanded that she make noises to accompany his grunting and heavy breathing.
[146]
Incident 10: Between 11 February 2000 and January 2001 - JG aged 9
JG gave evidence that prior to this incident, sometime between 11 February 2000 and January 2001, on an occasion when her mother was under the influence of alcohol after returning from "the pub", KG was talking with her about sex (a conversation that they had had previously where her mother spoke about her own sexual experiences). JG gave evidence that her mother said, "It makes it better if you make noises. It would make it better for you and Dad".
This was count 13 on the indictment, charged against KG only. It alleged a breach of s 66A of the Crimes Act, in that by KG's conduct in encouraging JG to "make noises" while having sex with her father, she aided and abetted him to have sexual intercourse with JG when she was under the age of 10 years. That offence, as with the substantive offence under s 66A, carries a maximum penalty of 20 years' imprisonment.
[147]
Incident 11: Between 31 December 2000 and 8 January 2001 - JG aged 8
Counts 15-18 were also offences with which KG was charged. They were alleged to have been committed between 31 December 2000 and 8 January 2001 (that is, after count 14 charged against WG in incident 9 above and before the offence the subject of count 19 which comprised incident 10 below).
Counts 15, 16 and 17 involved KG demonstrating to each of her three daughters how to masturbate, being an act of indecency relative to the age of the children, contrary to ss 61O(1) and (2) of the Crimes Act, carrying a maximum penalty of 5 and 7 years' imprisonment respectively.
JG gave evidence that she was in her sister's bedroom when her mother lifted up her nightie and touched herself on the top of the vagina. JG said she did not know at that time but learnt later that her mother was touching her clitoris. KG told her daughters that it would "feel good" touching that area. She said she also remembered that her mother inserted one of her fingers into her vagina. JG gave evidence that her sisters were talking with her mother about orgasms but she did not know what they meant.
Count 18, a further offence contrary to s 66A of the Crimes Act, was committed immediately thereafter when KG went into JG's bedroom where she was alone. JG gave evidence that she wanted to speak to her mother about whether she was "doing the noises properly". She gave the following evidence:
Q. Now when you went to your bedroom did you see your mother again that night?
A. Yes. She came into my bedroom and I remember that I wanted to ask her ‑ I guess what I'm trying to say is I wanted to ‑ to make sure that I was doing everything that I could do to please dad properly so that I wouldn't get in more trouble, I wouldn't get more punishment. I just wanted to do things better for him and I remember mum coming in and I remember wanting to talk to her about whether I would have made the noises properly and I remember her saying that it would have made it better for dad and she asked me if it made it better for me, if it was good for me, and I remember saying "I didn't like it" and that's when she said that she'd show me how I was meant to feel.
Q. And did she do anything?
A. Yes.
Q. Can you tell us what she did?
A. I was wearing a nightie and she was sitting on my bed with me and she touched the outside of my vagina and I didn't know but I now know she was touching my clitoris and she then used one of her fingers and put it up my vagina and I remember her asking me if I liked it, if I felt good, and I remember saying, "Yes", because I just thought that ‑ I thought that what she was doing was to help me and I didn't know that it was wrong. I didn't know. Sorry.
[148]
Incident 12: As with counts 15-18 against KG, this incident occurred between 31 December 2000 and 28 January 2001 - JG aged 8
Incident 12 (comprising count 19) occurred following KG speaking with JG in her bedroom. On this occasion WG came into JG's bedroom, separated her legs and forced his penis into her vagina. When she cried WG became angry, eventually pulling her by the hair down the hallway of the house and into the kitchen where he got the torch out of the pantry before taking her down to the creek where he pushed her into the water with both hands and held her head under the water. She kept saying, "I'm sorry dad, I'm sorry dad". Thereafter she was taken to the shed and left for the night. She said her mother gave her a hug when she was taken back to the house the next morning but they did not speak about what had happened the night before.
[149]
Incident 13: Between 1 December 2001 and 28 December 2001 - JG aged 9
Incident 13 (comprising count 20) involved an allegation of fellatio in the shed after JG's friend, Fiona Rourke, had visited and JG did not respond to her father when he was calling out for her. (Ms Rourke gave evidence that she recalled an occasion when she was hiding with JG in her friend's cupboard and that WG started calling out her name.) After Ms Rourke left JG was physically assaulted. She was thrown on the ground where she was stung by jumping ants. When she was then taken to the shed WG exposed his penis and she was told to "hurry up". She gave evidence that she thought she had done something wrong because her father did not ejaculate.
[150]
Incident 14: On or about 25 December 2001 - JG aged 9
This incident (comprising count 21 - the last of the 16 offences laid under s 66A of the Crimes Act) occurred on Christmas morning 2001 when JG woke to find her father on top of her forcing his penis into her vagina. She said because her grandparents were guests in the house her father was "a lot quicker than usual and very quiet".
[151]
Incident 15: 23 August 2002 - JG aged 10
Incident 15 (comprising counts 22 and 23) alleged acts of indecency contrary to ss 61M(1) and 61O(1) of the Crimes Act, attracting maximum penalties of 7 and 5 years' imprisonment respectively. These offences were committed in a hotel room in Sydney where JG and her sister and her parents were staying during an athletics competition. Count 22 involved WG touching JG's vagina during a massage and count 23, JG "massaging" WG's penis at his direction. At this time AA was in the shower and KG had gone to get dinner.
JG gave evidence that from about age 9 she would be frequently massaged by her father when he would invariably put his hands underneath her underwear after which he would have her massage his groin area. She said at this time she thought his massages were "normal". This evidence was led as relationship evidence. The trial judge directed the jury as to how they might use this evidence in their deliberations to verdict.
AA gave evidence that she was also massaged by her father from about age 13 and that he would massage her around her "bottom and vaginal" area. She said there was one occasion when she was aged between 13 and 16 when her mother and siblings were not at home and WG massaged her, trailing his finger inside her vagina. She gave evidence that he pulled her bottom cheeks apart after which he got onto the massage table naked and directed her to massage him. She massaged him around his penis which was erect. She said he made groaning noises and ejaculated.
On another occasion, in a hotel room in Sydney which AA was able to identify referable to Athletics Australia records as having occurred between 26 and 29 February 2004, she was massaged to the point of orgasm.
This evidence, together with her evidence of other occasions of indecent touching when WG was with AA and her two sisters at their grandmother's home and occasions where WG was violent towards her and her mother, was adduced by the Crown as tendency evidence in the case against WG.
[152]
Incident 16: 1 September 2002 - JG aged 10
Incident 16 (comprising count 24) is the only offence charged against s 66C(2) of the Crimes Act, being sexual intercourse with a child aged 10 but under 16 in circumstances of aggravation, attracting a maximum penalty pf 10 years' imprisonment. On this occasion, which was Fathers' Day 2002, JG took a cup of coffee into her father's bedroom and got onto the bed. He was naked. She massaged his penis to erection and then sucked on it until he ejaculated. She was happy because her father said she was "a good girl".
WG was also convicted of 42 offences under s 61J(1) of the Crimes Act, being sexual intercourse without consent knowing JG was not consenting and in circumstances of aggravation - again where the circumstance of aggravation was WG's authority over his daughter. These offences were committed between 28 January 2003 when JG was aged 10 and 17 January 2011 when she was aged 18. Each count attracted a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years. As with the offences charged contrary to s 66A, some of these offences were committed in the same assaultive incident.
[153]
Incident 17: Between 28 January 2003 and 2 February 23 - JG aged 10
The first four offences contrary to s 61J(1) (counts 26-29) occurred in the course of an extended assaultive episode in the shed which involved the insertion of "Tool A" into JG's vagina on two separate occasions and the insertion of a nail or screw, also into her vagina.
JG was able to give some precision to the date of these offences relative to her commencing a new school and dirtying her uniform on the first day and being threatened by her father with "the shed". That threat materialised on the Friday night at the end of the first school week when she was dragged from where she was hiding in the bedroom cupboard, through the kitchen and out of the house into the shed where she was sexually assaulted with the tools. Her hands were then tied and she was forced to stay in the shed overnight. The following morning she was forced to participate in fellatio following which "Tool A" was reinserted into her vagina. She was again left overnight in the shed, restrained by barbed wire around her body. She gave evidence that by the time her father returned she had not had anything to eat or drink and was exhausted. She gave evidence that when he took her back to the house she got changed before meeting up with her sisters and her mother on the driveway after they returned from a long run. Later that day, one of her sisters asked her "How's Fiona?" which she thought strange as she had not seen her friend for some time.
Just before starting at her new school sometime between 29 November 2002 and 28 January 2003, JG also gave evidence of recalling a conversation with her mother about sex where her mother told her to use her tongue to make a circular motion on the top of a man's penis to make it erect. This was charged against KG as a breach of s 61O(1) of the Crimes Act (count 25). JG was aged 10.
[154]
Incidents 18, 19, 20 and 21: Between 14 August 2003 and 30 November 2004 - JG aged between 11 and 12
These incidents (comprising counts 30-34) involved oral and penile intercourse variously committed in JG's bedroom or the shed, on one occasion by WG inserting "something sharp" into her vagina. Counts 30 and 32 and counts 33 and 34, although separate assaults, were committed in the context of JG not performing athletically to her father's satisfaction, either in competition or in training sessions. They were also associated with physical and verbal abuse, including WG immersing her in the creek and holding her head under the water.
[155]
Incident 22: Between 1 December 2004 and 24 December 2004 - JG aged 12
This incident (comprising counts 35, 36 and 39) also incorporates counts 37, 38 and 40 charged against KG. The incident, which occurred in the master bedroom at The Channon, involved not only allegations of sexual intercourse without consent contrary to s 61J(1) of the Crimes Act charged against both accused (one act of fellatio by WG - count 35 and one of digital penetration by KG - count 38) but also allegations that WG incited acts of indecency (counts 36 and 39) by directing JG to touch her mother's vagina and to perform cunnilingus on her, an offence charged as a substantive offence against KG (counts 37 and 40). After doing as she was directed JG vomited over the side of the bed. Her father told her to eat the vomit.
[156]
Incident 23: On or about 12 February 2005 - JG aged 13
This incident (comprising counts 41, 42 and 43) also occurred in the context of WG not being satisfied with JG's athletic performance in a sporting event in Queensland and carrying through with threats that if she failed to perform to his expectation she would be taken to the shed. She gave evidence that although she won a 3000m race, in her father's view she had not performed to a personal best time and she was told she would be going to the shed when she got home. She gave evidence that she pulled out of the next race because she was falling behind and was fearful of the repercussions. She gave evidence that after the race had finished her father took her away from the track and assaulted her by pushing her to the ground and hitting her across the face.
She said that on her return home from the event her father said, "You know what you have to do when we get back". She said she took herself to the shed and sat in the corner in the hope that her father would not come. On dark, when he arrived he grabbed her arms, tied her wrists together at the front of her body and commanded her to fellate him (count 41). She gave evidence that he then pushed her so she hit the back wall of the shed after which he separated her legs, ripped off her running shorts and forced something into her vagina. She said she felt a ripping pain.
The following morning she noticed a spanner on the ground. This is the first time she had seen that tool. It was labelled "Tool F" the trial. On her father's return that morning he reinserted the spanner into her vagina under force (counts 42 and 43).
She gave evidence that her father then untied her and told her to leave the shed. She said there was blood dripping on the ground when she stood up and that she was naked from the waist down. Her father told her to clean herself in the creek. He was on the ledge above the water forcing her head into the water. He then told her to go and work in the garden and she was not to have anything to eat.
[157]
Incident 24: Between 1 September 2005 and 30 September 2005 - JG aged 13
This incident (comprising counts 44 and 45) occurred when JG was living on the Gold Coast but would return to The Channon during school holidays and weekends. She said on one occasion when she was returning home on a Friday night her father was angry with her for failing to qualify for an event. She said she awoke that night to find him removing her boxer shorts before penetrating her vagina after which he ejaculated. She gave evidence that she tensed her body to suppress the fact that the penetration "felt good".
She gave evidence that the following day she was with her father in the lounge room and that he seemed to be "on edge". She said he pulled her out of the house and to the shed. She said that on this occasion he picked up a tool that she had not seen before and, after removing her tracksuit and underpants, and draping her leg over his leg so that her bottom was lifted off the ground, he forced the end of the tool into her vagina. She said it was a "U-shaped" tool that looked to her like a broken handsaw. It was brown and rusty. This became known as "Tool G". It was later found by police buried at a location JG had nominated. She said after "Tool G" had been used to penetrate her he hit her across the head with it, threw her clothes at her and told her to help her sister in the garden.
[158]
Incident 25: Between 3 December 2005 and 31 December 2005 - JG aged 13
This incident (comprising counts 46 and 47) involved one count contrary to s 61M(1) of the Crimes Act and one count contrary to s 66C(1) of the Crimes Act. Count 46 occurred in a room somewhere north of Newcastle as WG, JG and AA were en route from Melbourne where JG and AA had been competing in the Pacific School Games. It involved an act of indecency where WG touched JG's vagina during the course of giving her a massage. Count 47 occurred when they arrived home and JG woke to find her father in her bedroom where he had vaginal intercourse with her.
[159]
Incident 26: Between 31 December 2005 and 31 January 2006 - JG aged 13
This incident (comprising counts 49-52, laid under s 61J(1)) occurred at The Channon following an athletics meeting at the Gold Coast. JG gave evidence of waking in her bedroom to find her father's head between her legs with his mouth on her vagina and his tongue moving around (count 49). She said he got up suddenly and pulled her off the bed and told her to go to the shed where she was pushed inside, landing on her elbow. He then took her nightdress off and reprimanded her for not shaving her vagina. She gave evidence that she saw him pick something up but she did not know what it was before it was forced into her vagina a number of times. After withdrawing the item he left the shed, leaving her inside. The following morning he returned with a different type of implement (described as "Tool H" in the trial) which he had difficulty inserting into her vagina. After effecting full penetration she said she felt bad pain in her lower stomach. She was on the ground in pain but got on her knees at her father's command and fellated him. He then tied her wrists together with rope and left her in the shed. Later that day she noticed blood on the floor of the shed. She said she thought she was going to die. In terror she tried unsuccessfully to write in blood on a piece of wood. She then found a nail and remembered engraving the words "I'm trapped", "Mum is coming", "Dad" and "wee". She said these were the things that scared her most and that she would almost always tell herself that her mother was coming to get her to make herself feel better.
In the execution of the search warrant in February 2012, police located a number of words scratched into timber in the framing on the floor along the western wall. The words appeared to read "traped", "bad dad", "mor wee", "Mum is coming" and "I'm GOI".
JG gave evidence that she remained in the shed for another night without food. She said she was weak and dizzy. When her father returned he told her to open her mouth into which he put hot chillies which she was told to chew and swallow. He then returned with barbed wire pushed her into the corner of the shed and attached the wire across her body where she stayed for the balance of the day.
[160]
Incident 27: Between 9 February 2006 and 25 February 2006 - JG aged 14
This incident (comprising count 53, a breach of s 66C(4), and count 54, a breach of s 61J(1)) JG was able to appoint as having occurred sometime after her 14th birthday and prior to her competing in the Queensland Under 20 championships. The first assault occurred when JG, having pulled out the wrong plant whilst she was gardening with her father, was dragged to the shed and forced to fellate him. He was unable to achieve an erection. JG gave evidence that she wanted to please him so she remembered something her mother had taught her and used her tongue in a circular motion whilst his penis was in her mouth (conduct charged in count 25). When this was not successful he pulled his penis from her mouth and hit the right side of her face before tightening his hands around her neck and pinning her against the back wall of the shed. He then inserted "Tool G". She said he was making grunting noises when he was pushing it in and out of her vagina. When he removed the tool he hit her across the left side of her head with it.
She was then directed to put on her clothes and follow him out of the shed. When she looked him in the eye he hit her again and dragged her to the garage where she was told to get inside a large box which had at one time contained diving equipment. She described the box as greyish in colour with white writing on it. She said it had holes in the side and a latch. She said she got inside and sat with her legs "scrunched up" and her head down. She said she was left there overnight. The following day she heard the roller door of the garage open and her sister CG saying, "She is not in here". She also heard her mother's voice. She did not cry out as she was fearful of what her father might do. Her father entered the garage a short time later, opened the box and said, "I hope you've learnt your lesson". Later that day she saw her mother and her sister and told them she had been in the garden.
[161]
Incident 28: Between 1 July 2006 and 31 July 2006 - JG aged 14
This incident comprises counts 55 to 57. Each of the three acts of sexual intercourse laid contrary to s 61J(1) of the Crimes Act, respectively cunnilingus, vaginal intercourse and fellatio, occurred in JG's bedroom after she had travelled back down to The Channon after the "Down Under" athletics competition. After the assaults she was told to follow her father to the shed where she was left with her wrists tied to the front of her body and with barbed wire draped over her.
[162]
Incident 29: Between 1 August 2006 and 1 September 2006 - JG aged 14
This incident (comprising counts 58 and 59) occurred after JG had competed in the Schools Cross Country Championships in Hobart. She gave evidence that she was in the garden with her father clearing some lantana with a bush knife. Her father was using a chainsaw to cut the larger parts of the weed. She said all of a sudden her father yelled that he was sick of her and began kicking her legs and back causing her to fall to the ground. He then applied the chainsaw near her neck. She put up her hands to stop him coming any closer to her after which he turned the chainsaw off and dragged her to the creek. He placed her under some barbed wire which was wrapped around a tree and sat on her stomach. After he released his grip on her she was unable to get up because her clothing was caught in the barbed wire. She was bitten by ants whilst she was on the ground and could not stop crying. Her father pulled her to the creek where he held her head underwater several times. On the execution of the search warrant in February 2012 police located lengths of barbed wire wrapped around a tree extending along the ground. The wire was photographed and the photographs exhibited at trial.
JG was then taken to the shed where WG removed her wet clothing, separated her legs and inserted "Tool G" into her vagina (count 58). He then used a long nail with a loop on the top of it to "jab at her vagina" and, on one occasion, near her bottom (count 59). He then took her back to the garden where he warned her never to "hold him back again" otherwise he would kill her. He also said he could do whatever he wanted to her.
The following day, after her parents had gone out, she buried "Tool G", "Tool K" and her bloodstained underpants in different locations on the property, later identified by her to police. She hoped that by burying the tools her father would not use them on her again.
[163]
Incident 30: Also between 1 August 2006 and 1 September 2006 - JG aged 14
A few days after burying the tools WG approached JG and told her to accompany him. He took her to the shed and demanded to know what she had done with the tools. She denied having done anything with them. Her father threatened that if she told anyone what had been happening he would kill her (by locking her up in the shed and letting her rot or taking her out to a cave, digging a hole and burying her alive) as it was no one else's business what he did. He said that he could do what he wanted to her because he owned her.
JG said she was terrified, believing everything her father had said to her. He then left the shed and returned carrying two different tools: a type of broken handle made of black plastic ("Tool I") and a medium-size screwdriver with a black and yellow striped handle ("Tool J"). "Tool I" was then used to penetrate her vagina and "Tool I" her anus. (This was the only occasion where anal penetration was alleged to have occurred.)
She was then told to get dressed and go back to the house, change into her garden clothes and go back out to the garden.
[164]
Incident 31: Between 1 December 2006 and 31 December 2006 - JG aged 14
This incident (comprising count 63) was another count of forced vaginal intercourse contrary to s 61J(1) following WG's fury and disappointment at her falling behind in the 3000m running event at an athletics competition, on this occasion at the Schools National Championship in Sydney. From the sidelines he was yelling out to her, inter alia, "You're weak. You've got no guts". She gave evidence that the assault occurred at a motel in Sydney when she was alone with her father. On this occasion he had his hands around her neck while he was penetrating her and ejaculating.
[165]
JG's 2006 diary
In 2006 (that is, the year during which each of counts 53-63 were alleged to have been committed), JG kept a diary in her bedroom. It was located by her in 2011. It was admitted at the trial only against WG. JG gave evidence that she was not always particular about the dates that she recorded events but rather that she used the diary to record things when she was upset, as if it were a journal.
Some of the entries included the following: "spent night in shed but serves you right"; "still bleeding"; "Dad didn't wee, used other way tonight"; "make dad wee next time or box again". Another entry recorded "tolls", "he didn't wee" (with a drawn sad face). JG gave evidence that she assumed from that entry that "tools" was spelt incorrectly and that she had not been successful in making her father ejaculate. A further entry included "practice breath, water freezing" and "didn't make him wee, got creek shed but didn't stay in". An entry in July included, "shed getting colder, colder and creek".
The diary also included an entry on 22 April which read, "still no period. Dad really angry smash stomach. Dad helped get period. Med ball dropped". This entry was a reference to evidence JG gave of her father keeping track of when she menstruated and on one occasion when she was 14 and her period was late he introduced a new exercise into strength training with her sisters. He made her lie on the ground whilst he dropped a 5kg medicine ball on her stomach in three sets of 20. He told her it would help her get her period.
Another entry on 26 August 2006 read, "Dad angry. Can't find tools. PS I buried them Shhhhhh".
This, together with the finding of the tools by police, was relied upon by the Crown as evidence supportive of JG's credibility.
[166]
Incident 32: Between 11 February 2007 and 1 March 2007 - JG aged 15
This incident (comprising count 64) involved one count of vaginal intercourse without consent utilising "Tool I". That assault occurred in the shed, again after JG was reprimanded by her father when she injured her foot in an athletics event in Hobart. She was at that event without her parents. After the event, she flew from Hobart to Melbourne where she was due to catch a connecting flight to Brisbane. After speaking to her father on the phone she was frightened and suffered an anxiety attack which prevented her from catching the flight. She was taken by ambulance to the Children's Hospital in Melbourne. When she spoke to her father the following day she said he was kind to her and allowed her to catch the flight home. During the flight, however, she had another anxiety attack and was treated by medical staff when the plane landed in Brisbane. Her mother met her at the airport and returned with her to The Channon.
The following morning her father dragged her from the bed to the creek, pushed her into the water, dunking her head underwater several times. He then told her to follow him into the shed where he used the black-handled "Tool I" to penetrate her vagina. He said he was angry about the way she had behaved on the trip to Hobart.
[167]
Incident 33: Between 2 May 2007 and 31 May 2007 - JG aged 15
This incident (comprising count 65) involved vaginal intercourse, again utilising the black-handled "Tool I", this time after JG had returned from a training camp in Canberra. She gave evidence that when she reported to her father whilst she was at the camp that she had struggled during training he was angry and told her she was "weak". She decided to self-harm by deliberately hitting her head on the edge of the bath in the place where she was staying three times and using her necklace to scratch herself to avoid having to go home. When she was taken to see one of the trainers she lied and told them she had fallen over in the bathroom. Nicola Frey, one of the trainers, gave evidence that JG repeatedly insisted that her father was not to be contacted as she was fearful he would think she was weak. Ms Frey also gave evidence corroborating JG's account of her father's trackside rage at the All Schools Championship in Sydney the previous year.
At some point JG was told that she may not be ready to compete in the World Youth Championships which made her even more fearful as she realised this would make her father angrier. She was in fact later withdrawn from that competition.
After returning home she was put into the box in the garage where she remained overnight. The following morning she was stiff and found it hard to walk. Her father pushed her to the shed where he sexually assaulted her with "Tool I". He then picked up a spanner-type tool and swung, hitting her above the ear. He returned a short time later with a machete which he put to her neck and told her that if she ever told anyone what happened down there (meaning the shed) he would kill her.
Later that day, she was interrupted in the shed endeavouring to bury her bloodstained underpants with "Tool I" and "Tool D" so she put "Tool I" between the wood and the wall of the shed and "Tool D" on the ground and covered it with leaves. She told her father she was cleaning up after she had urinated on the floor. He told her to get back to the house. ("Tool I" was located during the police search behind a pile of wooden logs in the shed.)
[168]
Incident 34: Between 1 May 2007 and 1 June 2007 - JG aged 15
This incident (comprising count 66) was another instance of vaginal intercourse contrary to s 61J(1) of the Crimes Act in JG's bedroom before her father was due to fly to Papua New Guinea for work.
On one occasion while her father was away in New Guinea JG woke her mother who had been drinking wine and had fallen asleep on the lounge and assisted her to her bedroom. KG asked JG to sleep in the bed with her. This was not unusual when their father was away. Whilst in the bed KG touched the outside of JG's vagina and rubbed it until KG fell asleep. This was charged as a breach of s 61M(1) of the Crimes Act against KG (count 67).
[169]
Incident 35: Between 20 June 2007 and 21 July 2007 - JG aged 15
This incident (comprising counts 68, 69 and 70) occurred in JG's bedroom and in the shed on the same night. These counts included one count charged contrary to s 61J(1) of the Crimes Act and two counts contrary to s 66C(4) and included penile-vaginal intercourse and fellatio with one count constituted by WG urinating in JG's mouth after she failed to fellate him to ejaculation, he said to teach her a lesson. These offences occurred after WG returned from overseas. JG was able to appoint the incident referable to her father wanting her to compete in a race on the Gold Coast. Her arm was in plaster after she broke her wrist riding a skateboard.
[170]
JG's 2007 diary
In 2007 (that is, the year during which counts 65-70 were alleged to have been committed), JG kept a diary in her bedroom in an exercise book. It was located by her in 2011 in the same box as the 2006 diary. It was exhibited at the accused's trial but admitted only against WG.
The diary included following entries:
1. Do not cry 2. Do not be weak 3. Don't get to the point were dad ask you to pleasure him, just do it, 4. Run hard 5. Do not stop holding breathe 6. Always make sure that dad's coffee is zapped for 30 seconds 7. Dad is always rite (and in capitals) 8. Listen to Dad always
…
You are not strong. You must get strong, you are weak. Fight harder, harder. Do not cry. If you do, you are soft, soft, Dad is always write. Do as he says and nothing else.
[171]
Incident 36: Between 1 December 2008 and 25 December 2008 - JG aged 16
This incident (comprising counts 71 and 72) occurred in the school holidays before JG turned 17 in February 2009. The incident followed much the same format as a succession of incidents which preceded it, namely penile intercourse in JG's bedroom to ejaculation following which she compliantly followed her father to the shed where tools were used to penetrate her vagina. Count 72 utilised "Tool H".
[172]
Incident 37: Mid-January 2009 - JG aged 16
Three weeks later, in mid January 2009, and whilst WG was overseas, JG again sought to help her mother who had fallen asleep on the lounge and spilt her wine. JG helped her mother to the shower. Her mother asked JG to shower with her. KG was having difficulty standing up. JG got into the shower with her mother to wash the wine off her legs. JG told her mother that she did not want to be washed but, despite her protests, KG picked up the soap and touched the outside of JG's vagina. This was charged as a breach of s 61M(1) of the Crimes Act, and count 73 on the indictment. It was the last sexual offence of which KG was convicted. Three years later she committed the offence charged as count 86 on the indictment, being a breach of s 316(1) of the Crimes Act as to which see later.
[173]
Incident 38: Between 1 March 2009 and 31 March 2009 - JG aged 17
This incident (comprising counts 74 and 75) occurred in March 2009 after WG returned from New Guinea after having been away for six weeks. He sexually assaulted her in her bedroom on the night of his return. He pushed his penis into her vagina, breathing heavily and making noises. He said, "Come on, show me that you are enjoying this". He then removed his penis and put it near her face and told her to "suck on it". She complied. He ejaculated in her mouth. He then directed her to the garage and told her to get into the diving box. He shut the lid, returning when it was still dark and directing her to return to the house.
[174]
Incident 39: Between 1 July 2009 and 31 July 2009 - JG aged 17
This incident (comprising counts 76 and 77) occurred after JG had competed in the "Down Under Meet" on the Gold Coast. WG entered her bedroom, where she was still awake, and forced his penis into her vagina. By this time JG had formed a relationship with a boyfriend and began to realise that what her father had been doing to her for so long was not right although she thought it remained his right to act as he did.
The following morning she brought her father coffee in bed after her mother had left a note saying she had gone for a run. He told her to shut the door, and that he needed a massage. She massaged around his groin area and his penis became erect. On her mother's return he told her to leave.
[175]
Incident 40: Between 1 August 2009 and 1 September 2009 - JG aged 17
This incident (comprising count 78) involved a single allegation of fellatio. The assault occurred on a dirt track outside Nowra where JG had been competing in the National Cross Country Championships. Her father was the team manager for the Queensland Team. During the drive out of town in a rented minibus he was critical of her for having fallen over at the start of a race despite finishing third. He stopped the car and told her to get in the back of the vehicle where she was directed to suck his penis. He then told her to get back into the front of the vehicle before hitting her to the back of the head which caused her to fall to the ground. They then drove back to Nowra to rejoin the other members of the team.
[176]
Incident 41: Between 1 September 2009 and 30 September 2009 - JG aged 17
This incident (comprising count 79) occurred at JG's grandmother's house at Cabarita after she had competed in an athletics event on the Gold Coast. They slept in separate rooms at the back of the house while her grandmother slept at the front of the house. During the night JG woke to find her father removing her boxer shorts and underpants. She said his penetration of her vagina was slower and quieter than usual. He ejaculated and then left, closing the bedroom door behind him.
Before JG left for overseas on an athletics trip to Doha in December 2009, she found the L-shaped tool known as "Tool A" and the nail, "Tool D", which she had tried to get rid of earlier and buried them under some rocks. This location was later identified by her to investigating police.
Whilst in Doha JG was sexually assaulted by one of her coaches who used a key to enter her room on the pretext of looking after her. She did not regard his behaviour as inappropriate as he was kind and gentle with her until she heard others on the team referring to him as a "paedophile". She gave evidence that it was then she started to realise that what her father had been doing to her for years was wrong. She said she could not stop thinking about it and wanted to die. Upon her return to Australia she reported the incident with her coach to her mother. She said her father found out about it and was angry. He directed her to report the matter to police and to tell them that she might have been drugged. He said that no one else was allowed to touch her. He referred to her as "his girl". She reported the incident to police. She did not complain at that time of her father's serialised sexual abuse of her.
[177]
Incident 42: On or about 23 December 2009 between 1 December 2009 - JG aged 17
This incident (comprising counts 80 and 81) occurred later that year after JG had been unable to complete sufficient chin-up exercises to demonstrate her fitness to her father (in the presence of her mother). She was told to go to bed and then heard her father coming towards her room. She pretended to be asleep. He came in and directed her to get out of bed, pulling her through the house by the arm and taking her to the shed where he pulled her to the ground and utilised the spanner to aggressively penetrate her vagina. She said she tried not to cry but that tears were falling down her cheeks.
WG then directed her to suck his penis. When she did not respond he grabbed her hair and pulled her head towards him. He ejaculated in her mouth. He told her to "pull herself together", to listen to him and to stay in the shed. She gave evidence that it was then that she engraved the word "traped" (sic) on a piece of wood where she had written things on an earlier occasion. She said this was the first time she felt "trapped" by everything her father had done to her and kept doing to her. She said she thought she had to get out of the shed but she could not open the door. She then said she found a pair of pliers on the floor and cut through the chicken wire encasing the shed until there was a hole large enough for her to climb through. She said she ran to the other side of the property, sat down and tried to think of ways to kill herself. She decided not to as she kept thinking of her mother and her younger brother.
JG returned to the house when it was light in her underwear and shorts and walked into the lounge room. Her father said, "How dare you" (as she understood him, leaving the shed without permission). Her mother said, "Please [WG], its Christmas". They started arguing.
When police executed a search warrant in February 2012 they located what was described as a small woodshed 4m from the house. It was 2.5m in length, 1.5m in width and 2m high. It had a concrete floor, timber frame, corrugated iron walls and a corrugated iron roof. The front of the shed was open and covered in chicken wire halfway up the wall. There were holes in the chicken wire in places and a large hole on the northern side. There was an entry door on the southern side. There was no evidence of a latch on the door. Inside the shed there were stacks of timber logs in one corner.
[178]
The Falls Creek incident
On either 26 or 27 December 2009, JG travelled with her father to Falls Creek in Victoria for altitude training with Athletics Australia. He was staying in an area separate from her. In thinking about her father's sustained physical and sexual abuse of her, and wanting it to "go away", she cut her left wrist with a razor blade. She later covered it with her watch. She told Ms Frey that she had cut it herself and, over the following days, as her physical and mental distress intensified, JG told Ms Frey that her father had touched her inappropriately at different times when he was massaging her. This formed part of a body of complaint evidence relied upon by the Crown.
On the third evening at Falls Creek JG consumed 10 Panadol tablets. Ms Frey was notified by the other girls in the team of JG's attempted overdose. When Ms Frey spoke with JG she was upset and not making sense. Ms Frey gave evidence that JG told her later that she took the overdose to block out the pain of an incident that happened on her recent trip to Doha. Although JG urged Ms Frey not to tell her father, given her age (she had not yet turned 18) Ms Frey did telephone him. (She had not been informed at this time of the complaint of inappropriate touching.)
Ms Frey gave evidence that when WG arrived he was very angry and did not offer his daughter any comfort but simply said, "What the hell have you done now". Ms Frey urged WG to take his daughter to hospital which he was not willing to do. Instead he took his daughter with him.
JG gave evidence that her father took her to his room and said if she did certain things to him, including sleeping in his bed, he would forgive her for what she had done. He directed her to fellate him. She complied. He ejaculated. (This was led as relationship evidence.) The following day WG told her that she had to go and meet with her trainers to explain that she had behaved as she did because of what happened to her in Doha. It was at this time that JG made the complaint of inappropriate touching to Ms Frey, including that she was scared of her father and did not want to return to him. Ms Frey gave JG refuge by lying to WG saying that JG had fallen asleep on the couch.
Ms Frey did not, however, report the matter to police. Ultimately, JG returned with her father to The Channon.
[179]
Incident 43: Between 1 January 2010 and 31 January 2010 - JG aged 17
Within a short time of returning to The Channon from Falls Creek JG heard her parents arguing in the lounge room. Her father was saying that she just needed to "toughen up". When she walked in she said her father "lost it". He was throwing photo frames and smashing things and hitting his wife around the face and head. JG yelled at him to stop. He responded by dragging her by the shirt to the creek where he held her head underwater several times before dragging her back to the shed, where he put his hands around her neck so she could not breathe before forcing "Tool H" (the spanner) in and out of her vagina.
This was charged as count 82 on the indictment. It was the last act of sexual abuse (charged or uncharged) that occurred at The Channon. It was not, however, the last act of sexual intercourse alleged. Two further counts of sexual intercourse without consent in circumstances of aggravation laid contrary to s 61J(1) of the Crimes Act occurred 12 months later at Lismore in circumstances where JG believed she was meeting with her younger brother but the meeting was effectively hijacked by her parents. That incident, incident 39, will be addressed shortly.
In the days following the offences the subject of incident 38, JG was admitted as a voluntary patient to a mental health clinic at Richmond House where she resided for a period of months. She was accompanied to the clinic by her mother. She turned 18 whilst a resident of the clinic. She gave evidence that when she was at the clinic she was feeling safer being away from her father but she had intrusive thoughts and memories of his abuse. She gave evidence that she was scared that she was going to be sent home.
After a period of time her mother encouraged her to return home on the pretext that WG had changed. Her mother also told her she was not to consult with her counsellors or take any medication that was prescribed. JG gave evidence that she saw her counsellors without her parents' knowledge and at the end of 2010 she went to live in supported youth accommodation at Byron Bay. Thereafter contact with both of her parents diminished.
[180]
Incident 44: 17 January 2011 - JG aged 17
This incident (comprising counts 83 and 84) occurred in the context of JG arranging to see her younger brother at a local swimming pool when she was confronted by her father who ordered her into his car. She complied after which he was physically and verbally abusive, directing her that she was to cease contact with her counsellors and return to the family home. When she refused (JG described that as "a very big thing" for her to do), WG dragged her from the car onto the gravel. When another car arrived at the carpark, WG forced her back into the car where he sexually assaulted her (by forced penile/vaginal intercourse and fellatio) after which he struck her to face when she vomited the ejaculate onto the floor. In the result, JG promised she would cancel all future counselling sessions and return home. Her father told her to tell her counsellors that the injuries she had sustained that day to her face, cheekbone and temple area where he had struck her were from a farming incident.
Thereafter she was readmitted to the mental health clinic at Richmond House by Dr Crehan who attended upon her for her injuries and to whom she made a complaint that her father had physically and sexually assaulted her. Multiple injuries, consisting of bruises and lacerations to her face and large areas of scratching to her torso, were noted by Dr Crehan and photographically recorded, together with reduced range of movement in her shoulder and areas of broken skin over her lower palms, wrist and knees, some of which had dirt in them.
Dr Crehan gave evidence that JG's report of what had happened was consistent with the external injuries she found, in particular facial bruises and lacerations were consistent with her being hit across the face; the soft tissue injury to the left shoulder was consistent with being forcibly pulled from the car and the injuries to her palms, left knee and leg were consistent with being on the ground on a rough surface. When asked by defence counsel whether the injuries were self-inflicted she said that was unlikely having regard to the range of injuries she observed. Genital and oral examinations were reported as "normal".
Subsequently, Dr Crehan was informed JG had reported to police a lengthy history of being sexually assaulted by her father. JG was re-examined on 9 February 2012. Dr Grehan reported the labia, the vagina and the cervix as "normal", without visible scarring. She gave evidence that female genital tissue heals quickly and is less likely to leave visible evidence of tissue damage. She also gave evidence that the fact that the sexual assaults had occurred over many years and the capacity of the genital tissue to heal could account for the normal appearance of JG's genitals on internal and external examination. She did not use the colposcope, the magnifying instrument used by Dr Norrie.
[181]
Incident 45: 13 October 2011 - JG aged 17
The last offence on the indictment against WG (count 85) alleged that on 13 October 2011 he detained JG with intent to obtain a psychological advantage over her and the infliction of actual bodily harm contrary to s 86(2)(b) of the Crimes Act. That offence attracted a maximum penalty of 20 years' imprisonment. The last offence on the indictment against KG (count 86) alleged that, with her knowledge, WG had committed the offence of aggravated take and detain for advantage and, without reasonable excuse, she failed to provide information to police about that offence to enable WG to be prosecuted for it. That offence was laid contrary to s 316 of the Crimes Act. It carries a maximum penalty of 2 years' imprisonment.
This offending related to WG and KG following JG in their car before ultimately approaching her in a carpark near to where she was attending TAFE at Wollongbar. WG gestured to her to approach his car. When she complied he took hold of her hair, forcing her head first into the back seat causing injury to her cheek and knee. With her face against the rear seat WG then took hold of both her arms, forcing them behind her back. JG said she then felt something being tightened around her wrists. WG threatened her by reminding her of "the shed". After she promised she would go home with her parents, WG released her wrists allowing her to sit up. As he was getting into the driver's seat she managed to escape. She ran directly to her car and headed back towards Lismore before executing a U-turn and heading directly to the TAFE college where she was studying. There she spoke to a head teacher, Ms Kylstra. Ms Kylstra gave evidence that when JG presented she was "very anxious, sweaty, pale, shaking". She said she gave her a hug and tried to give her some comfort but could not get any words out of her. She seemed to be in shock. She said she also noticed red marks on JG's wrist and a red mark on her neck. JG eventually told Ms Klystra that she thought her parents had been following her in their car but tried to convince herself she was just being paranoid. However, when she got to the service station she realised it was them. JG was accompanied to the police station to report the incident. Her injuries were photographed.
One week later, on 20 October 2011, JG commenced what was to be a lengthy police statement in which she detailed the sexual and physical abuse to which she had been subjected by her parents from a young age. The statement was completed on 28 January 2012. A comprehensive police investigation commenced a month later. It included, as I have noted above, a variety of scientific examinations of various areas external to the family home at The Channon, in particular the shed where JG said she was repeatedly sexually abused by her father, and other areas nominated by her as areas where she believed she had buried bloodied underpants and various implements which had been used by her father to sexually assault her. On 8 March 2012, KG was arrested. She was informed on her arrest that she was to be charged with the sexual assault of JG and aggravated acts of indecency towards JG and AA. KG protested her innocence and asked police to believe her. WG was arrested on 25 October 2013 on his return to Australia. Neither of the accused participated in an ERISP.
[182]
Evidence of complaint in the case against WG
JG gave evidence of having complained to various people from about the age of 17 about her father's sexual abuse of her, albeit with varying degrees of detail and disclosure. The most comprehensive evidence of complaint was given to police after a process of gradual disclosure whilst she was in the Richmond clinic. The jury's use of this evidence as evidence of complaint in their consideration of the case against WG was the subject of direction from the trial judge. These directions were not challenged on the appeal.
JG gave evidence that the first person to whom she made complaint about her father's abuse of her was Ms Frey at a training camp in Falls Creek in December 2009 and January 2010. She was at that time aged 17, within weeks of her 18th birthday. JG gave evidence that she told Ms Frey that her father was abusing her but that she did not go into much detail. Ms Frey gave evidence that JG told her that her father had touched her inappropriately at different times whilst massaging her, indicating her pubic area. Ms Frey did not confront WG; neither did she take the matter further by bringing it to the attention of the authorities. Ms Frey also gave evidence that JG repeatedly told her at the camp that she was uncomfortable with her father, that she did not want to be in his care and she was sick of the control and pressures she was subjected to by him.
JG also gave evidence that she told her sister AA "a bit more" (about the above) after she was discharged from the Mental Health Unit at Richmond Clinic in Lismore in 2010.
She also complained to Ms Wallis, a friend of the family who had visited her at the Clinic, that WG used to enter her bedroom when she was 7 and fondle her. JG also told her that if she did not perform well athletically he would say, "Well you know what's going to happen when you get home". She told Ms Wallis that WG would "come in during the night [and] sexually assault me".
JG said she told AA that WG used to come into her room and that he had sexually assaulted her many times. AA gave evidence confirming that JG had told her that WG had been "raping her". She said that her sister told her that he would go into her room and rape her and there would be blood on the sheets but the next day the sheets would be clean.
JG's maternal aunt, Ms Benstead, gave evidence that JG told her after she had been discharged from the Richmond Clinic that she had been locked in the garage by her father and that she had had "a full on sexual relationship" with him. When Ms Benstead asked where her mother was when she was locked in the garage, JG told her that her mother was usually drunk. On another occasion AA told her aunt that she was the lucky one as her father had not "gone all the way with her" but that he had broken her nose.
[183]
AA's evidence
In addition to her evidence of what JG had told AA of the sexual abuse she had been subjected to by her father, AA also gave evidence of being touched indecently by her father between the ages of 13 and 16 in ways not dissimilar to the way JG described being massaged, and of being required to massage her father's erect penis to ejaculation. She recalled one occasion at her grandmother's house when the three girls massaged her father in that way.
AA also gave evidence of seeing her father massage her sister CG with both hands near her vagina and hearing her sister complain that he was hurting her. AA gave evidence that she told her mother what she had seen but that her mother did nothing to intervene. She said she did not raise it with her father as she was too scared of him. She gave evidence that when she was in primary school, before her parents separated, her father became extremely angry with her mother and pushed her against the mirror in their bedroom after which he grabbed her by the hair and dragged her down towards the creek. KG was screaming. AA followed them, pleading with her father to stop. She clung onto his legs in an attempt to stop him from dragging her mother further.
On a specific occasion between 26 and 29 February 2004, when AA was aged 16, she recalled her father massaging her in a hotel room in Sydney where they were staying overnight after an Athletics Australia meeting. She was naked and his hands were near her vagina for the entire time. She said the massage was intense to the point where she orgasmed.
On another occasion, when she was aged about 17, when she refused to have a massage from her father he became extremely aggressive and hit her four times across the face, breaking her nose. She said after that she did not want her father touching her any more. AA gave evidence that she told her sister CG and her mother about that incident.
AA travelled to the USA after she left school. She was overseas for 18 months, returning when she was 19 or 20 years of age after which she moved back to the family home. It was after she returned from the USA she had a conversation with JG where she complained that her father had been "raping her".
On 23 February 2012, in the course of the police investigation, AA telephoned her father at the request of the police who recorded the conversation. During that call AA told her father that she had seen him drag her mother by the hair to the creek. WG replied, "I know"…"I know and that's the sort of demons and the problems I've had to face…". AA said she wanted to talk about the massage. WG replied, "Yeah I'm, I am really sorry, I cannot say sorry anymore". She then said, "You'd massage me, it was just you and me in the room"… and I was having orgasms with you". WG replied, "Which is scary because that it you know I, just cannot understand that and I, it just doesn't make sense to me". WG said further, "I've gone and spoken to counsellors and psychologists as well you know and I've gone to get help over this to just say how did this happen and what did I do wrong and why did I overstep the mark" … "no apology will ever be enough for you" ... "I cannot understand it myself because there was never any intent".
[184]
The family photographs
JG gave evidence that her father assembled a calendar for the months of July to December 2005 which included photographs he took of her at age 13 together with photographs of her sisters and her mother. JG was wearing a bikini in some of the photos and in another photo her sister AA was naked standing behind tree. Her father directed them how to dress and the positions they should take for the photographs. There was a further photo taken of all female family members, including KG, naked. These became Exhibit 42 at the trial. They were admitted as tendency evidence against both accused. Her Honour's directions as to how the jury should approach that evidence was not the subject of challenge on the appeal by either of the accused.
JG also identified a further bundle of naked photographs taken by her father in her bedroom when she was 16 or 17 with further photographs taken by her mother who told her the photographs were for her father and that she should look "sexy". I dealt with this evidence, together with another series of naked photographs taken by a commercial photographer in 2008 when KG was aged 15 in the course of dismissing KG's fourth ground of appeal against conviction. This evidence was also tendered in WG's trial as tendency evidence. He did not challenge its admissibility on the appeal or her Honour's directions concerning it.
As against WG, the tendency alleged by the Crown included that he had a tendency to have a sexual interest in his daughters and/or a tendency to utilise isolation and detention in a garage or shed at the family home as a form of punishment and/or a tendency to drag or pull his wife KG or one or more of his children from the house by the hair to a creek located on the property.
As against KG, the Crown alleged that she had a tendency to have a sexual interest in her daughters.
The tendency evidence adduced by the Crown in proof of guilt of each of the accused included that they commissioned the taking of sexualised photographs of their daughters referred to above and the evidence of AA that WG made deliberate contact with her genitals during massaging both her and her sister CG and that her mother spoke openly about sexuality generally and her own sexual experiences with WG.
The tendency evidence relied upon by the Crown against both accused was the subject of comprehensive written directions in which the trial judge identified the evidence the Crown relied upon to establish the existence of each of the alleged tendencies and the counts on the indictment to which each of the alleged tendencies were said to be relevant.
[185]
Other witnesses
Finally, the Crown called evidence from a number of people who had dealings with the family over a number of years and who attested to their exposure to the family and in particular the parenting of the children. I gratefully adopt the summary of their evidence in the judgment of the Chief Justice at [463]-[578].
[186]
Dr Hoey-Thompson
Evidence from Dr Hoey-Thompson, psychiatrist, also formed part of the evidence in the trial available to the jury for their consideration, in particular in relation to JG's behaviour after returning from Doha and her admission into the Richmond Clinic and whether, in Dr Hoey-Thompson's opinion, those experiences caused a significant deterioration in JG's mental health as distinct from whether the incident in Doha was the primary cause of it.
Dr Hoey-Thompson gave evidence that as at the time of trial in 2016 she had been treating JG for a period of years and had seen her for hundreds, possibly thousands, of hours for clinical assessment supporting what was her ultimate diagnosis of Post Traumatic Stress Disorder, dissociative subtype, and a Dissociative Identity Disorder. Dr Hoey-Thompson said the symptoms of the first disorder involved intrusive memories of the trauma JG had been subjected to and the extreme lengths to which she had gone to avoid thinking about the trauma or encountering reminders of it. The second disorder is associated with "derealisation and depersonalisation". Dr Hoey-Thompson referred to a clinical study where 14 per cent of 25,000 people who experienced post traumatic stress disorder with dissociative subtype were found to have childhood onset of trauma which was "chronic, severe and enduring". The second disorder, the dissociative identity disorder, is where people have blocked all memories of childhood trauma to survive. Dr Hoey-Thompson gave evidence that when trauma occurs before the age of five or six and it is trauma of an intense, frequent and recurring nature, disassociation allows the child to block off the trauma and to pretend their life is normal.
Dr Hoey-Thompson also gave expert opinion evidence that, in her opinion, her diagnosis of this complex of psychiatric disorders were caused by the violence and sexual assaults JG had disclosed to her over the course of treatment. She also gave evidence that JG's suicide attempts were the result of being confronted with the reality that she was no longer able to deny that her father's treatment of her was both wrong and criminally wrong, a realisation that made her want to escape from reality. In Dr Hoey-Thompson's opinion, JG's experiences in Doha led her to the realisation that what she had been subjected to by her father was wrong.
In cross-examination, Dr Hoey-Thompson rejected the suggestion that JG's disclosures were simply a continuation of an elaborate plan to fabricate evidence against her parents, as to which she said:
I do have patients at times that have what we diagnose, what we call facetious disorder or malingering and it may be that they want the disability pension or to escape from jail or something like that … but to that degree of general genuineness to do so over six year thousands of hours I would think quite implausible but also remote. It would be too difficult to think about.
[187]
The case for each of the accused and closing addresses
Both accused gave evidence denying any physical or sexual abuse of their children or witnessing the other physically or sexually abusing any of their children.
Their evidence is summarised in the judgment of the Chief Justice at [672]-[778] and at [779]-[848].
[188]
WG's evidence
In undertaking my review of WG's evidence, I have taken into account his categorical denials of the facts underpinning each of the 73 counts on the indictment and the context in which those offences were alleged to have occurred, including his denials that he subjected JG to physical violence in the context of his alleged sexual offending or otherwise, including that he placed chillies in JG's mouth or that he kicked, punched or dragged her to the creek where he forced her head underwater. I have also taken into account the evidence he gave denying the particulars associated with various individual counts on the indictment and his claim to have an alibi in respect of some of them (in particular, counts 83, 84 and 85).
I have also had regard to WG's categorical denials that he subjected his other daughters or his wife to any physical violence and his evidence that he regarded himself as a good husband and provider. Insofar as it being suggested that he admitted to AA that he had dragged KG by the hair to the creek in the recorded phone call in February 2012, he said he would have said anything to AA so she would not hang up. I note that he said he recalled slapping JG across the face once when she had berated him for not driving her to school. So far as the allegation that he broke AA's nose when he punched her in the face, he said he recalled her bumping into a door and falsely accusing him of punching her in the face.
I have also taken into account that WG denied ever putting JG in the shed or that he locked her in a box in the garage. WG gave evidence that the only box in the garage was a fishing crate which did not have a lid and that the shed was a storage shed for firewood and that he did not like his daughters going into the shed on their own because there were venomous snakes in the area. I note that he said when they moved to the property he found 50 or 60 old tools on the ground near a large rock where they were left.
WG agreed that he took photographs of his family for the 2005 calendar (Exhibit 42). At one stage he suggested that the photograph where one of the girl's breasts was showing was because his son had pressed the button on the camera by mistake. He later acknowledged that he had taken all of the photographs. However, he denied taking any photographs of JG in her bedroom while she was naked (the photographs in Exhibit 44), and denied that he had her take photographs of herself naked.
[189]
The closing address for WG
Counsel for WG submitted that JG's credibility was of the utmost importance because a doubt about her evidence concerning any one count on the indictment could, and should, lead to a doubt about her credibility in respect of all counts on the indictment. To exemplify what were said to be doubts about JG's credibility, counsel reminded the jury that her claim to hating water because of the way her father would immerse her forcefully and repeatedly in the creek was contradicted by a number of witnesses who gave evidence of observing JG swimming in the creek, doing laps in a swimming pool and surfing. He also queried why, when WG penetrated her vagina for the first time at age five, she did not scream out to her sisters in pain or immediately report the matter to her mother on her return to The Channon after the birth of her brother, in circumstances where she did suggest that WG threatened her such as to ensure her silence or that he made threats of any kind until years later.
Counsel also reminded the jury that no one who was called in the trial gave any evidence of seeing any unusual "marks, bites, scratches, or bruising" on JG's body, despite her evidence that she had barbed wire draped over her by her father and was on occasions placed on a nest of jumping ants and on repeated occasions dragged along the ground and kicked and punched by her father.
Counsel also queried why JG would move her bloodied underpants from the bottom of the cupboard to the shed, being a place where, on her evidence, her father would repeatedly abuse her, and why she would make etchings on wood in the shed for the same reason. Counsel suggested that the jury would be entitled to find that the scratches on the wood in the shed were much more proximate to their finding in 2012 and that the tools, having regard to Dr Fitzpatrick's evidence, may have been moved around the property as distinct from being buried in the one place for many years.
Counsel also invited the jury to question JG's credibility generally given her account of being placed in the box that was used for diving gear. In his submission, she simply would not have been able to fit into the box and remain there with the lid shut for any length of time.
Counsel also submitted that the jury would reject JG's evidence that she learnt to deal with the excruciating pain she said she experienced upon the insertion of tools into her vagina without a complaint of soreness or evidence of vaginal bleeding, and would reject her evidence that she was able to compete in athletics competitions within days of these assaults.
[190]
KG's evidence
In undertaking my own review of KG's evidence, I note the evidence she gave denying the particulars associated with some of the counts on the indictment, inclusive of her claim to having an alibi for count 85, and her evidence that she had no sexual interest in her daughters and had not sexually abused or indecently assaulted them. I have also taken into account her evidence that she was the prime carer for her children and that she worked part-time as a schoolteacher two or three days a week.
KG said she separated from her husband in 2000 as a reaction to having parented the children largely in his absence. After the separation she said the family reunited and her husband resigned from his job to focus on coaching their daughters and coaching a squad of other athletes. She gave evidence of her own sporting abilities and those of her children.
KG denied she was involved in any sexual activity with JG (or her other daughters) and denied that JG had spoken with her about sexual activity with WG or that she encouraged her to have sexual activity with her father. She also denied knowing that WG had inappropriately massaged any of the children. KG denied having any knowledge that JG was being punished by being left in the shed overnight and denied telling her daughter that what her father was doing was for her own good.
KG denied being fearful of her husband at any time during their marriage or that he was physically or verbally abusive of her. She gave evidence that JG did not appear to her to be frightened of her father. She said that they had a good relationship. Insofar as she referred in a letter to AA to "horrible memories of your father", she claimed that was a reference to him not being with the family for extended periods. Under cross-examination by the Crown she denied that her husband had a bad temper or that he dragged her to the creek by the hair.
KG denied being aware her husband detained and physically abused JG in a car in October 2011, or that she failed to bring her husband's criminal conduct to the attention of police. She said what she told police in the interview that day about her movements was the truth. In respect of the answer to Q147 of that interview, KG said that JG had "been pushing [her] to leave [WG]. There's, there's a whole history of stuff that's gone on". She said that JG had previously told her if she did not leave her husband she (JG) would, on the advice of her doctors, "cut her mother off". KG said her daughter gave her no reason why she should leave her husband.
[191]
The closing address for KG
Counsel for KG emphasised the collective view of the witnesses called on her behalf at trial that KG was a loving and attentive mother and a good role model for her daughters who simply would not have countenanced any of her children being physically or sexually abused, would not have participated in any sexual abuse of them with her husband and would not have indecently assaulted any of them.
Counsel also referred to KG's response when she recognised the deterioration in JG's mental health upon her return from Doha and that it was at her initiation that JG was provided with medical assistance. Counsel reminded the jury that KG attended to her daughter during her admission to the Mental Health Clinic at Richmond, something she would hardly have done if she had any reason to fear that her daughter would make damaging revelations about her abuse of her and her husband's abuse of her were she to have known about it and passively acquiesced in his mistreatment of their daughter.
Counsel submitted that the jury could not ignore the evidence of CG that she was not indecently touched by her mother and did not see her mother touch her sisters inappropriately, and that CG's evidence alone would cause the jury to have serious doubts about JG's reliability and credibility.
The Crown submitted that JG's evidence of being sexually abused by both her parents withstood the scrutiny of cross-examination and that nothing was raised in the case mounted by either of the accused that would give rise to a reasonable doubt as to their guilt on each count on the indictment.
It was the Crown case that WG was a strict and controlling father, prone to outbursts of temper and fits of violence which overshadowed any capacity he may have had to provide positive support for his daughters as young athletes or to encourage them to compete and to achieve sporting success.
It was also the Crown case that KG was, to an extent, subject to her husband's violence as a means of exercising coercive control over her, despite the fact that she maintained in her evidence that she was an independent person who was not subordinate to him. In addition to the Crown relying upon the evidence JG and AA that their father was violent towards their mother, they both also gave evidence that KG would drink alcohol to excess, despite her denials.
[192]
Ground 8 of KG's conviction appeal (Ground 4 of WG's conviction appeal)
I have read and considered the extensive summary of the evidence adduced at the joint trial of the accused in the judgment of the Chief Justice. I have also undertaken an independent assessment of the evidence adduced in the trial of both accused in the context of the challenge they both mounted to JG's credibility and reliability.
In short, after considering all the evidence adduced in the Crown case in support of the guilt of each of the accused, including the evidence given by WG and KG in their respective cases and the additional evidence KG called in her case, for the reasons set out below, I am left in no doubt that it was open to the jury to return verdicts of guilty on each of the counts upon which verdicts of guilty were returned by the jury in the joint trial of WG and KG.
[193]
Consideration
As the Chief Justice noted at [1033], in counsel's written submissions eight features of the evidence were identified to support the proposition that the jury ought to have had a reasonable doubt as to WG's guilt on all counts on the indictment.
Not all eight features were addressed in oral submissions. Those features which were developed orally (being features 1, 4, 5 and 6) focused, in various ways, upon what was said to be the "bizarre" nature of JG's evidence which it is said ought to have raised in the jury's assessment grave doubts as to her credibility and which, in turn, ought to have given rise to a reasonable doubt as to his guilt on all 73 counts since her evidence was crucial to proof of each of them. This, together with what is said to be little independent corroboration of her allegations; the fact that no injuries were observed by members of her family or others with whom she was said to be associating at relevant times and the delay in her complaint renders the verdicts unreasonable or unsupportable and that this Court should intervene and enter verdicts of acquittal on all counts.
The third feature of the evidence identified in counsel's submissions, that JG's allegations of sexual abuse by her father over many years arose in the course of what was described as a "psychiatric episode" (which I take to mean a reference to treatment she was receiving at the Richmond Clinic), must be taken to have been abandoned, given that ground 3 was abandoned after senior counsel accepted that any suggestion of "recovered memory" was no part of WG's case at trial. It was his case that JG's evidence was a complete fabrication.
For that reason, and since there were no additional submissions advanced which would re-enliven any suggestion that the verdicts were unreasonable or unsupportable because of some suggestion that JG's complaint to police (and others) was the subject of recovered memory or some sense of elaborated memory because of psychiatric treatment, I do not propose to comment further upon the third of the eight features to which the Chief Justice has referred. I note in that connection, at [1070], the Chief Justice also observed that there was no case of recovered memory advanced at WG's trial and that it was Dr Hoey-Thompson's opinion, as her treating psychiatrist, that JG's history of serialised abuse by her parents was genuine and the underlying cause of her complex psychiatric profile.
[194]
Ground 8 of KG's conviction appeal: The verdicts of guilty are unreasonable or cannot be supported by the evidence
It is submitted that having regard to the evidence adduced at trial the jury "misapprehended the facts" and returned verdicts that were "unreasonable and unsafe" in the sense that it was not open to them to be satisfied beyond reasonable doubt of KG's guilt in respect of any of the 13 counts on the indictment which attracted guilty verdicts.
In the written submissions filed on the appeal express reliance was placed on the submissions of trial counsel which, it was submitted, ought to have persuaded a reasonable jury and ought to persuade this Court that there was no proper basis (from which I assume the submission to be there was no sufficient evidential basis) for the jury to return verdicts of guilty.
In addition to the summary of trial counsel's address set out above, in support of this ground of appeal it was also submitted that the jury ought to have given very great weight to the fact that JG was subject to pressure in her sporting pursuits and that it was her mother's view that she had "cracked up". So far as I understand that submission, it seems to be asserted that JG's complaints to police of her mother's sexual mistreatment of her from a young age was a result of her "cracking up" and making false allegations of historical sexual mistreatment as a consequence.
In the written submissions great emphasis was placed on KG's evidence in which she categorically denied having criminally offended against any of her children or that she had been derelict in her duties as a mother in protecting them from her husband's physical and sexual abuse. Emphasis was also given to her evidence that she was an attentive mother concerned to provide a good diet for her children and a regular sleep regime. This was said to render JG's allegations of being locked in the shed where she was "repeatedly raped" by her father wholly incredible.
The submission was advanced in the following terms:
[Those allegations] are surely inconsistent with the family which apparently aim to keep a team of budding young athletes in condition to win national and international sporting honours.
In light of all of the evidence adduced in KG's trial which informed the context in which the offending occurred, I regard the emphasis on sporting prowess as evidence which the jury were entitled to take into account when considering whether, notwithstanding the outward appearance of a highly competitive family of athletes, there was nonetheless systematic abuse which was concealed from the public gaze by the dominance that was exerted over the children by their father, in which KG was complicit.
[195]
WG's sentence appeal
As noted earlier, WG was found guilty by a jury of 73 offences which attracted an aggregate sentence of 48 years' imprisonment with a non-parole period of 36 years. The sentencing judge declined to make a finding of special circumstances as to which there is no challenge.
The sentence was ordered to commence on 8 October 2013, the date WG was arrested and remanded in custody.
The offences which attracted the aggregate sentence, together with the maximum penalty and, where relevant, the applicable standard non-parole period; the essential facts of the offending relevant to each count, including the age of the complainant at the time of the offending; an assessment of the objective seriousness for each offence and the sentences indicated for each count are set out in a table marked annexure A to this judgment.
A statement of facts (not agreed) was tendered by the Crown on sentence. The Crown also tendered the applicant's criminal history and his custodial history, neither of which recorded any relevant entries. Victim impact statements from JG and AA were tendered. JG read her statement. A report from Dr Hoey-Thompson, JG's treating psychiatrist, was also tendered.
The applicant gave evidence in the sentence proceedings. He said his status as an unsentenced prisoner deprived him of courses and work but that he had been using his expertise to assist other inmates with exercise and diet. He said he had no health concerns and had not committed any offences in custody. He said he maintained a relationship with his son who was planning his future in the absence of both his parents.
WG maintained the position taken at trial that he was not guilty of any of the offences upon which the jury had returned verdicts. Notwithstanding, he said he would be "happy" to participate in the sex offender's program in custody on the basis that his behaviour (which he did not consider to be overtly sexual) seems to have affected JG and AA. He had a memory of only one occasion where he slapped JG. He did, however, accept that he was an "angry father" and would often raise his voice.
Unsurprisingly, having regard to the jury's verdicts, the sentencing judge rejected the submission that WG's conduct was motivated by a desire to enhance JG's sporting performance, albeit that he used inappropriate means of discipline.
[196]
Ground 1
There was nothing advanced on the appeal to suggest that her Honour's assessment of WG's character evidence was flawed or that her treatment of it was not open to her. I have already extracted from the sentencing judgment her Honour's treatment of WG's claim to good character. For emphasis, it is the following passage which is said to constitute the error the subject of the first ground of appeal:
The father has no record of relevant prior convictions and was a person of good character, at least when he committed Count 1. Evidence of good character has far less weight when it is relied upon for offending of the present type. The weight to be given to the evidence attesting to this offender's good character is substantially diminished by reason of the fact he committed so many serious offences over such a lengthy period of time. Clearly, he hid his offending from the public eye including these referees for a very long time. In all the circumstances he cannot rely upon the fact he has no relevant record of previous convictions as a matter for the Court to extend any degree of leniency (R v Smith (2000) 114 A Crim R 8 at [21-22]; MPB v R [2013] NSWCCA 213 at 126). (Emphasis added.)
It was submitted that by denying WG "any degree of leniency" for his good character the sentencing judge's approach was contrary to Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.
I am not persuaded that there is any legal error in the approach her Honour took to the fact that WG had no significant record of previous convictions. To the extent that ground 1 is understood to comprehend error in the approach her Honour took to the character evidence called on sentence and the lack of previous convictions, both categories of evidence being relied upon in mitigation of sentence, I am not persuaded that there was any legal error in the approach she took to that evidence.
The error in the treatment of his absence of previous convictions is said to resonate from her Honour having determined not to "extend any degree of leniency" for that fact (emphasis added). That expression is said to be the error that was identified by the High Court in Ryan.
In that case the applicant was a former Catholic priest who had been convicted of the sexual abuse of young boys over a period of 20 years. There was evidence of his prior character but the primary judge determined to grant him no leniency for his claim to good character in view of the number of offences and the period of time over which they were committed.
[197]
Ground 2
The applicant submitted that the sentencing judge committed a number of sentencing errors which are reflected in the sentences indicated for many of the 73 individual counts and which have translated into the appointment of an aggregate sentence that is manifestly excessive.
It was not submitted that any of her Honour's factual findings were in error or otherwise not available to her.
First, it was submitted that it was an error of sentencing discretion for the sentencing judge to indicate sentences for some offences close to the statutory maximum penalty. While the applicant's senior counsel accepted that many of the sentences the subject of this criticism were for objectively very grave offending, in his submission, were this Court to impliedly sanction an indicated sentence so close to the maximum penalty available for a particular offence, that would have the unintended effect of depriving another sentencing court of the opportunity to indicate an equally heavy indicated sentence for an offender whose offending was aggravated in ways additional to the features of aggravation found by the sentencing judge to apply in this case.
That complaint needs to be understood in the context of a body of settled principle which provides that the gravity, or the objective seriousness, of an offence is not assessed by the absence of features which would elevate it into a different category of seriousness, even less so to ensure there is sufficient leeway for sentencing judges to impose a heavier sentence at first instance where the circumstances demand it.
Secondly, even were the first ground of appeal to fail, it was submitted that the indicative sentences failed to reflect the weight WG was entitled to have taken into account for his prior good character and his other favourable subjective circumstances.
Thirdly, it was submitted in imposing an aggregate sentence of 48 years the degree of notional accumulation across the 73 counts reflects a failure on the part of the sentencing judge to apply principles of totality, particularly where the offences were committed only against one complainant.
Finally, it was submitted that the aggregate sentence imposed, coupled with the statutory non-parole period (there being no finding of special circumstances) was effectively a life sentence. This was said to reflect a failure on the part of the sentencing judge to appreciate, and to give appropriate weight to the fact that WG will be 90 years of age before he is eligible to be considered for release to parole.
[198]
Consideration
In Hughes v R [2018] NSWCCA 2, at [86], the following statement of principle was set out:
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R ; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]:
(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
(3) it is not to the point that this Court might have exercised the sentencing discretion differently;
(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].
Those principles warrant some repetition in this case to emphasise that the onus is on WG to establish that the aggregate sentence of 48 years with a non-parole period of 36 years imposed after trial was "unreasonable" or "plainly unjust" in the context of the self-evident proposition that sentencing is not a mathematical exercise; it involves the balancing and ultimately the synthesising of different and often conflicting factors in the exercise of a broadly based sentencing discretion which will not lightly be interfered with by an appellate court: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] and [27].
That fundamental principle is further exemplified by the fact that this Court will not interfere in a sentence imposed by a sentencing judge merely because members of the Court may have exercised the sentencing discretion differently. That proposition readily translates into what has long been stated as fundamental when considering a ground of manifest excess, namely that, in any given case, there will be a range of possible sentences that could be imposed by a sentencing court without error.
[199]
KG's sentence appeal
KG was found guilty by a jury of 13 offences, attracting an aggregate sentence of 16 years' imprisonment with a non-parole period of 11 years to commence on 24 June 2016, the date upon which she was remanded in custody. The sentencing judge made a finding of special circumstances, altering the statutory ratio between the aggregate sentence and the non-parole period to an extent. Her Honour based that finding on the notional degree of accumulation of some indicative sentence and the fact that KG will need assistance to reintegrate into the community upon her release if she is to avoid reoffending.
The offences for which KG was sentenced (together with the maximum penalty and, where relevant, the standard non-parole period applicable to each offence), the facts of the offending on each count and the age of JG (and her sisters) at time of the offences, together with an assessment of the objective seriousness for each offence and the sentence indicated for each offence, are set out in a table marked Annexure B to this judgment (being an annexure to the Crown's sentencing submissions). (I note there was no challenge to her Honour's assessment of the objective seriousness of each of the offences.)
Of the 13 counts which attracted indicative sentences, the three objectively most serious counts (counts 13, 18 and 38) involved sexual intercourse with JG, with one count (count 13) laid as a count of aiding and abetting WG to have sexual intercourse with JG when she was under 10 years of age. Two of these counts (13 and 18) were contrary to s 66A of the Crimes Act which attracted a maximum penalty of 20 years' imprisonment. The third count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act, also attracted a maximum of 20 years' imprisonment with a 10 year standard non-parole period. The count also involved KG's digital penetration of JG's vagina - an offence which was committed in the presence of WG at which time he forced JG to engage in fellatio.
The Crown also tendered the applicant's criminal history (it had no relevant record of previous convictions) together with a victim impact statement from JG and her sister AA which were read in open court. An expert statement from Dr Hoey-Thompson was also tendered.
KG did not give evidence on sentence. She tendered thirteen character references, together with a report from Dr K Eagle, forensic psychologist, dated 21 September 2016, and a report from Dr Adams, forensic psychiatrist, dated 8 August 2016. A transcript of the intercepted telephone call between WG and AA (initially tendered by the Crown in WG's trial and referred to above) was also tendered.
[200]
The grounds of appeal
The applicant relies upon three grounds of appeal as follows:
1. The sentencing judge erred by neglecting to take into account non-exculpatory duress, either:
1. as part of the objective circumstances of the offending; or
2. as part of KG's subjective circumstances.
1. The sentencing judge erred in her treatment of KG's prospects of rehabilitation.
2. The sentencing judge failed to take into account, in mitigation, KG's mental health at the time of sentence.
3. The sentencing judge erred in her treatment of the victim impact statements.
4. The sentence is manifestly excessive.
[201]
Ground 1: The sentencing judge erred by neglecting to take into account non-exculpatory duress
On the appeal it was conceded there were no submissions advanced on sentence where non-exculpatory duress as a mitigating factor under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act was asserted and no reliance upon the same principle as it operates at common law: Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215. In other circumstances, that may raise a question as to whether an applicant ought be entitled to agitate the point on appeal: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44. In this case, however, those considerations do not arise as the question whether non-exculpatory duress was a mitigating factor was not overlooked by the sentencing judge.
Although her Honour did not expressly refer to s 21A(3)(d) of the Crimes (Sentencing Procedure) Act or the authorities that deal with the concept at common law, she did raise with counsel whether he proposed to rely upon the evidence adduced by the Crown at WG's trial that KG was subject to her husband's violence, oppression and controlling behaviour as a factor operating to reduce her moral culpability for her offending.
Ultimately, the recorded conversation between AA and her father on 26 February 2012, tendered at trial against WG only, was tendered by KG on sentence for that purpose.
On sentence, the Crown submitted both orally and in writing that her Honour would not be satisfied, on the probabilities, that KG's offending was the result of any influence exerted by WG or the result of any pressure applied by him.
After considering the evidence bearing upon the question her Honour was satisfied that although WG's controlling and at times volatile temper provided some context for KG's offending, there was no relevant causative link between her offending and WG's treatment of her such as to mitigate her moral culpability for her sexual mistreatment of her daughters.
Her Honour's findings should be set out in full:
I turn now to considerations of the mother's moral culpability for her conduct.
I have previously expressed my findings regarding the background to which the mother offended, namely, that she was in an oppressive relationship characterised at times by a controlling and volatile husband such that she left the husband with the four children around the year 2000 for approximately 12 to 18 months and maintained a separate household.
She had sufficient fortitude and resilience to do that yet she elected to reconcile with her husband knowing he was having penile-vaginal sexual intercourse with their youngest daughter which she had facilitated by her conduct in Count 13. By reconciling with her husband, she was enabling the father's abuse to continue by placing her youngest daughter back into a situation where the father had unfettered access to her. The mother's appalling conduct was particularly destructive in that she intentionally manipulated her daughter's moral and emotional development by her implicit acceptance of the father's abuse and her encouragement of the victim's participation in that conduct in circumstances where she should have protected her daughter by preventing such conduct and/or removing her daughter from that conduct. The mother breached the victim's trust in the gravest ways. The victim was entitled to expect her mother would protect her, yet her mother showed complete disregard for her worth and her incalculable value as a person. The mother's moral culpability is high.
[202]
Ground 2: The sentencing judge erred in her treatment of the applicant's prospects of rehabilitation
The sentencing judge made the following findings in respect of KG's prospects of rehabilitation:
As to her prospects of genuine rehabilitation that will to a large extent depend upon her willingness to engage in programs designed to address the aspects of her life and her lifestyle that have played a role in her offending. The mother has no criminal convictions and a number of persons speak of her character in public, her charitable works and so forth.
The sentencing judge also made the related finding that KG was unlikely to reoffend, referring in large part to the report of Dr Eagle tendered on the applicant's behalf.
Her Honour said:
Overall, Dr Eagle opined the mother has a low risk of violent and/or sexual reoffending. That said, Dr Eagle identified possible or actual risk factors as including involvement in future relationships with domineering and/or controlling males on her release, engagement in a lifestyle with disinhibited sexual practices and/or a preoccupation with sex, ongoing consumption of excessive alcohol, ongoing over identification with her children and problem solving difficulties and a sense of injustice.
Dr Eagle recommended a treatment or management plan including engagement with a clinical psychologist on a regular basis, engagement with mental health services in custody and participation in substance abuse programs such as the SMART program in custody. Dr Eagle endorses the mother's intention to divorce her husband given his negative influence on her.
In the case of the mother, although she continues to protest her innocence, as I have said earlier I am satisfied she was drawn into the offending by the father and given the consequence of the offences the father has committed is such that he will be in no position to maintain a meaningful relationship with her and given the children are now adults, I am prepared to find the mother is unlikely to reoffend.
On the appeal, it was submitted that her Honour's findings as to KG's prospects of rehabilitation were demonstrative of error because, on a proper evaluation of the evidence, a finding should have been made that KG had "good prospects of rehabilitation", leading to a related finding that the need for the sentence to reflect specific deterrence was reduced with greater weight being given to her prospects of rehabilitation.
[203]
Ground 3: The sentencing judge failed to take into account, in mitigation, KG's mental health at the time of sentence
In the written submissions filed in advance of the appeal it was asserted, at least impliedly, that the sentencing judge did not have regard to two issues concerning KG's mental health at the time of sentence which operated in mitigation of sentence. I do not understand that submission to suggest that such past mental health issues as were identified in the reports Dr Eagle (essentially depression associated with the premature deaths of two children prior to the birth of her son which was reportedly dealt with by a prescribed antidepressant medication supplemented by exercise, and a diagnosis of depression in 2010 which reportedly presented in the context of JG's declining health and the emergent criminal proceeding) had any bearing upon an assessment of KG's moral culpability for her offending between 2000 and 2009 and then again in 2011. In any event, I note that after considering the available material (again, principally in the reports from Dr Eagle), her Honour did not consider there was any basis for a moderation of the objective seriousness of KG because of any prevailing mental health issues at time of the offending.
What was submitted for the first time on the appeal was that KG's "mental health issues" should have been taken into account by the sentencing judge because imprisonment will likely be significantly harder for her than for other offenders, carrying with it an allied risk that imprisonment will have a further adverse effect on her mental health in the course of serving her sentence. That submission ignored the finding of special circumstances.
No attempt was made in oral submissions to identify what were said to be KG's "mental health problems" which ought to have sounded in mitigation of sentence. Dr Eagle did not diagnose KG with a depressive illness, major mood disorder or psychotic illness at the time of the interview and, save for noting that she found the custodial setting highly distressing generating feelings of hopelessness, there were no "mental health issues" identified which would be productive of any greater impact on KG as she served her sentence than experienced by other offenders facing a lengthy term of imprisonment.
In the result, there was no factual basis for the submission advanced on appeal that her Honour was in error in failing to reflect those considerations in her sentencing reasons and in the aggregate sentence ultimately imposed.
[204]
Ground 4: The sentencing judge erred in her treatment of the victim impact statements
The submissions advanced in writing in support of this appeal fail to identify with any clarity any error in the way in which her Honour dealt with the very lengthy and painfully explicit victim impact statement JG read in the sentence proceedings or the victim impact statement read by her sister AA, and even less so for the assertion, which is plainly wrong in any event, that KG's offending cannot be "aggravated because she was JG's mother". That submission is dealt with below.
It is not necessary to extract any part of the victim impact statements. The extract from her Honour's sentencing reasons is sufficient to give a sense of the devastating honesty in which JG described the impact of the criminal conduct of both of her parents and the pain, loss and devastation she experiences on a daily basis as a result, despite her determination, at times faltering, to make a life for herself.
The sentencing judge referred to the impact of the offending, albeit, and entirely understandably, the impact of the offending by both KG and husband in the following terms (I have omitted specific reference to WG's offending):
The impact of the abuse by her parents includes multiple suicide attempts and self-harm incidents, flashbacks and dissociation caused by triggers which result in her reliving the trauma, financial impacts caused by an inability to commit to a job due to her need for sporadic hospitalisation and continuous counselling, ongoing educational impacts due to her inability to focus at university and the disrupted education she received as a child, disruption of her entire thought processes, self-esteem and confidence, an inability to maintain healthy interpersonal relationships and friendships and a division within her siblings.
Her treating psychiatrist over the last six or so years prepared an expert statement dealing the impact on her of the abuse she has suffered at the hands of her parents. That statement reveals she has been diagnosed with Post Traumatic Stress Disorder (PTSD) with dissociative subtype and Dissociative Identity Disorder (DID). These disorders often occur together and represent particularly complex trauma. That complex trauma results from extreme interpersonal adverse childhood events and experiences of physiological abuse, physical abuse, sexual abuse, violence in the family, abandonment and neglect of her basic physical and emotional needs.
The post-traumatic stress disorder and the dissociative identity disorder she suffers is a direct consequence of "the multiple abusive events which were extreme and occurred over many years at the hands of her caregivers being her mother and father."
…
[JG] has been attending psychotherapy for six and a half years, usually twice a week for an hour each time. Therapy is recommended to continue for years to come. Her doctor has opined that the abuse upon her has been "catastrophically devastating" to her entire person. It is difficult to comprehend the magnitude of this harm that that doctor described is as follows:
[JG] frequently experiences nightmares and flashbacks that are frequently so intense and overwhelming she is unable to attend her usual daily activities. She rarely sleeps well due to nightmares and night terrors and often needs a light on to orientate herself to her current safe surroundings instead of being in the unsafe past. She experiences great difficulty regulating her emotions which has resulted in suicidal tendencies. She has internalised many negative and hostile messages from her childhood that she is unworthy, worthless and that being upset is a sign of weakness deserving punishment. She still continues to dissociate although there has been implementing strategies to try to reduce its frequency. Often when dissociating, she relives childhood trauma and is unaware of what she is doing and has no memory of what she has been doing for the last few hours. On many occasions her extreme emotions, dissociative states and flashbacks have been life threatening. She has self-harmed numerous times and has been acutely suicidal many times. She has required over 20 admissions to acute psychiatric in-patient units when suicidal in order to prevent serious injury or death.
…
The legal proceedings have brought up memories of acute trauma for her. The legal process has meant she has felt like her life has been on hold. She still suffers from pain in her ribs and spine, attributed to assaults from her father.
She suffers pain in both knees, attributed to overtraining to avoid the abuse by her father. The long history of abuse has had significant impact on her social relationships, a capacity for consensual mutually satisfying sexual relationships has been severely impaired by the extreme sexual abuse she experienced. She has been unable to commit to ongoing employment due to lengthy periods of being psychologically unwell.
[205]
Ground 5: The sentence is manifestly excessive
The principles which apply where a sentence is challenged as manifestly excessive are well settled. In Hughes v R [2018] NSWCCA 2, at [86], the following statement of principle was set out:
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R ; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]:
(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
(3) it is not to the point that this Court might have exercised the sentencing discretion differently;
(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].
Those principles warrant some repetition in this case to emphasise that the onus is on KG to establish that the aggregate sentence of 16 years with a non-parole period of 11 years imposed after trial was "unreasonable" or "plainly unjust" in the context of the self-evident proposition that sentencing is not a mathematical exercise; it involves the balancing and ultimately the synthesising of different and often conflicting factors in the exercise of a broadly based sentencing discretion which will not lightly be interfered with by an appellate court: Markarian at [25] and [27].
That principle is further exemplified in the proposition that this Court will not interfere in a sentence imposed by a sentencing judge merely because members of the Court may have exercised the sentencing discretion differently. That proposition also readily translates into what has long been stated as fundamental when considering a ground of manifest excess, namely that, in any given case, there will be a range of possible sentences that could be imposed without error.
[206]
WG's conviction ground appeal 2 - failure of Crown to call Dr Nittis
The Chief Justice has recounted the circumstances in which the Crown did not call Dr Nittis. There were two aspects of the evidence of Dr Norrie, the Crown's expert, to which Dr Nittis could have responded in terms useful to WG's defence.
First, Dr Norrie said that the transections and thin, un-oestrogenised tissue of the complainant's hymen were "grossly abnormal" features. Her evidence was to the effect that the damage had to have been occasioned before the oestrogen receptors were activated in puberty. In Dr Norrie's report of 6 August 2012 she said this was a conclusion that "one could argue". She later withdrew those words because she held to the conclusion stated.
Dr Norrie said that her experience was of examining post-pubescent females to determine whether they had suffered pre-pubescent lacerations and that she had conducted "probably ten" such examinations over the course of 30 years in this field. Dr Norrie said she was not sure that the females in all of the approximately 10 cases had been post-pubescent and that she could not recall how many females she had examined in "the same sort of circumstances" as the complainant. In re-examination the following questions and answers are recorded:
Q Dr Norrie, you were asked about and you agreed that there was an absence of studies in respect of examining post pubertal females and looking at whether injuries had been occasioned pre-puberty?
A Yes.
Q And is it the case that your opinion in relation to the timing of injuries is based upon the absence of oestrogenisation of that area?
A That's right.
According to Dr Nittis' report of 6 August 2015 she did not record, from the examination of the complainant, thin and un-oestrogenised hymenal tissue between 5 o'clock and 7 o'clock or between 7 o'clock and 10 o'clock. Further, even if this had been present she would not have noted it "as I do not believe there is any research that links thinning of the hymen to previous trauma". As noted above, Dr Norrie conceded the lack of research but adhered to her opinion about the connection between un-oestrogenised hymen and pre-pubertal damage, based upon her observation of a small number of cases the details of which were not explored in evidence.
Secondly, with respect to infection and/or healing following the insertion of tools, Dr Norrie said that the bleeding described by the complainant after such assaults would have washed out potential sources of infection and that the tissue lining inside the vagina is mucosa, that does not scar and has a rich blood supply and a mechanism for rapid healing. Dr Nittis had been asked by WG's solicitors to express an opinion on the likelihood of infection resulting from penetration of the complainant's vagina with a pair of scissors at age 8 (count 12) and with a rusty spanner at age 12 (counts 42 and 43).
The Chief Justice has listed at [1033] eight features of the Crown case that WG's counsel argued must have left the jury in reasonable doubt as to his guilt. Having regard to several of those features, counsel argued that the jury must have found the complainant's evidence so improbable that they could not be satisfied beyond reasonable doubt on any of the charges.
One aspect of the asserted improbability concerns the complainant's capacity for recall. The case against WG on every count was fully dependent upon acceptance that the complainant could actually recall the individual particulars of dozens of sexual assaults that she alleged her father had committed over a period of 13 years throughout her childhood and teens. The earliest offences were said to have occurred 19 years before the trial, when she was five years of age. WG submits that the jury must have had a reasonable doubt that what the claimant described were real events that she was remembering.
The second aspect of improbability is concerned with the nature of the alleged offences, the circumstance in which they are said to have been committed and the absence of any report from the complainant or detection by others over many years while WG's criminal conduct continued. WG submits that the allegations against him of a full sexual relationship with his daughter from the age of five through to 17, coupled with frequent torture by metal implements, restraint by rope and barbed wire and confinement in a shed and in a box, are highly improbable. He submits that it is also highly improbable that this protracted course of violent sexual offending could have occurred over so many years without any of the complainant's three siblings having seen evidence of it; without any word of it ever having slipped from the complainant to her siblings, school friends or sporting friends; without any of them having observed any effect upon the complainant of continuous physical and sexual abuse and without any other person having learned anything of what was taking place. WG contends that, quite apart from doubts about the complainant's capacity to have genuine memories of the details she alleged, the entirety of what she described was so inherently improbable that the jury must have had a reasonable doubt. This proposition was encapsulated in counsel's submission that the Crown case "beggars belief".
[208]
The complainant's powers of recollection
As recorded by Fullerton J, the complainant gave evidence of 45 separate incidents during the years 1997 to 2011. The most important incidents for the purposes of WG's argument are those alleged to have occurred from 1997 when the complainant was aged five up to 2009, shortly before her first admission to psychiatric care, when she was 17. Forty two of those incidents concerned WG and many of them involved two or more counts. The complainant first set down her recollection of these events in her police statement, taken between late October 2011 and early 2012. I put to one side the complainant's 2006 and 2007 diary entries. They contain only fragments of information related to her allegations and they are not recognisable as descriptions of any of the alleged offences.
By way of example, the complainant claimed to be able to distinguish between the features of multiple individual offences committed by her father when she was aged between five and eight, as follows:
Counts 1-3: At age 5 - digital and then penile-vaginal intercourse by her father (then aged 40 years - born in 1957), followed immediately by oral intercourse with ejaculation into the complainant's mouth.
Count 4: At age 5, a few months later - WG holding her underwater in the creek, then penile-oral intercourse.
Count 5: At age 5, a few months later again - penile-oral intercourse with ejaculation.
Count 6: At age 6 - penile-oral intercourse with ejaculation; complainant being bound by the wrists and detained in the shed for three nights.
Count 7: At age 6 - holding underwater in the creek, then penile-vaginal intercourse.
Counts 8, 9: At age 7 - holding underwater in the creek, then cunnilingus, then penile-vaginal intercourse.
Count 10: At age 8 - penile-vaginal intercourse.
By the time the complainant first gave police a recollection of these assaults, each with its separate particular details, she claimed that for a further 10-13 years she had lived under continual harrowing abuse from her father until she was admitted to the Lismore clinic in 2010. The complainant said she had suffered throughout those intervening years, comprising the whole period of her teenage development, an onslaught of physical violence, vaginal and oral intercourse, torture by the rough insertion of metal implements into her vagina, periodic imprisonment in a shed or garage, being bound with rope or barbed wire and being locked in a box barely large enough to hold her. Notwithstanding the torment and disturbance of these many subsequent years, the claimant purported to be able to look back to her early childhood and recall specifically, as described above, on which occasions between the ages of five and eight her father had had penile-vaginal intercourse with her, different occasions when it had been penile-oral sex, the times when he had ejaculated in her mouth and the times when he had not, which ones were associated with WG having held her underwater in the creek or locked her in the shed for protracted periods - and so on.
[209]
Improbability of the complainant's entire narrative
The following aspects of the events described by the complainant in my view gave rise to such a high degree of improbability of her entire account that the jury must have had a reasonable doubt concerning WG's guilt:
1. The offences included acts indicative of WG's sexual desire for his daughter but also acts of great cruelty. Assaults of both types were commonly alleged to have followed each other in close succession. The combination is to say the least unusual. No similar element of cruelty was described by AG as accompanying WG's sexual interest in her. The complainant described some incidents in which sexual acts were no more than a means of inflicting pain and degradation, some in which WG appeared to be seeking sexual gratification and some that involved both, one after the other. The following are examples:
count 4 (dragging the complainant to the creek and holding her head underwater, then taking her to her bedroom for oral intercourse);
counts 5 and 6 (a similar sequence, concluding with complainant being left in the shed for one or more nights);
count 19 (aged eight, the reverse sequence, penile-vaginal sex followed by holding her underwater in the creek);
counts 26-29 (aged 10, a two-day sequence of tying the complainant up with rope, penetrating her with two tools in succession, leaving her overnight, returning for oral intercourse, inserting another tool and again leaving her overnight tied with barbed wire).
1. On the complainant's evidence WG had a paedophilic interest in her as a child of 5 years and that interest continued as she matured into a young woman of 18. The range of his alleged incestuous sexual appetite is extraordinary. AG said that WG's indecent touching of herself commenced when she was 13.
2. WG's sexual assaults as described by the complainant were brazen. The complainant said they took place in the family home, during daylight hours in the garden shed only 18 metres from the house, in the home of WG's mother-in-law, in hotel rooms where other members of the family were staying and in similar situations that must have involved a risk of being discovered or of the complainant reacting and attracting attention.
3. Throughout the years in which the offences were allegedly taking place, the evidence was that the complainant was able to function at school and as an exceptional athlete. From the manner of her giving evidence over more than 16 days the complainant presented as an intelligent person of at least normal perceptions and sensitivity. On the basis of ordinary human experience it is highly improbable that such a person could withstand the experience of full penetrative sex with a man of 40 plus years, on a frequent basis from the age of five, in association with other brutal and degrading mistreatment, without exhibiting signs of physical, nervous and emotional dysfunction.
4. It would be highly unusual in the early years of such abuse, for example when the complainant was five to eight years old, that she would not have mentioned to her sisters or to any of her school or sporting friends the abuse she was undergoing. Innocence and naivete at that age would usually tell against such disturbing experiences being kept secret. It is common that such very young victims blurt out something, unaware of the full significance, or confide in someone.
5. It is highly improbable that the abuse would have escalated from 2000 and continued for another 10 years without the complainant reporting it to any of the numerous people with whom she had frequent contact.
[210]
Failure to complain due to fear of WG
The complainant described a great deal of uncharged behaviour of the two accused to explain the relationships within the family. There is no one passage in her evidence in chief where evidence of the family dynamics is consolidated. Many of the answers on this subject emerged in cross-examination when the complainant was challenged as to why she had not resisted, protested or reported her father's alleged criminal acts.
The complainant's evidence of her fear of WG included the following (all in cross examination):
I had the opportunity [to tell somebody outside the family about what WG was doing] but I was in complete and utter fear of my father. That was not a choice, that was never a choice to tell anybody.
[In August or September 2006] he threatened to kill me if I told anybody [...] I knew what was going to happen to me if I did and I believed everything that came out of Dad's mouth. […] I knew from an early age I couldn't tell anybody […]
[N]obody was ever allowed to question Dad.
[N]obody ever questioned Dad ever and that was the rule.
I was scared of him, I told [Ms Frey, in December 2009 at Falls Creek].
I didn't need to tell [KG], she was controlled by Dad as well. […] I could witness what would happen and Dad used to bash her.
[With respect to the threat from WG, in August or September 2006, that the complainant would be killed:] [T]hat's not to say that there wasn't another threat before that. I knew, I knew that was what Dad would do to me. Just because I can't remember every single word that came out of my Dad's mouth does not mean that it's not true.
[T]he first time he used the tools on me when he said, "Don't ever embarrass me like that again", that was death threats and I just assumed that I wasn't allowed to tell anybody what happened in the shed and there's no way that I would have told anybody.
[In answer to questions about not reporting the sexual assaults at the time when physical assaults were reported to police in early 2011:] Now, yes, but then no way, I was still living at home with dad.[…] [W]hen you've grown-up under so much fear there's not that option at that point.
The date of the first alleged death threat, being "the first time he used the tools on me", is a reference to count 11. That was said to have occurred on 25 December 2000, by which date the complainant said she had suffered at least seven separate incidents of penile-vaginal and penile-oral intercourse, together with much brutality, over the preceding three and a half years. WG and KG were separated for 18 months from mid-2000 until late 2001, during which time WG did not reside with the family. The complainant gave no evidence of having told anyone in the family or at school about the assaults, even while WG was absent.
[211]
Evidence contradicting the complainant's fear of WG
Numerous witnesses recounted their observations of the relationship between WG and the complainant over the years in which the offending is alleged to have occurred. This evidence raised insurmountable doubts concerning the complainant's assertion that she held her father in such fear that she suffered his sexual abuse in silence.
The complainant's maternal grandmother, LA, lived at various localities on the far north coast of New South Wales from 2000. She stayed at The Channon with the family from time to time. LA described only one incident of physical conflict, when AG and CG were seven and eight respectively: WG shook them both violently and hit them for having fallen off their new bikes onto a flowerbed. LA made these observations:
He was a really strict father. I thought a really good coach but sometimes I thought he was just too hard on the girls […].
We spend a lot of weekends and time together […] he was too harsh on the girls in general. […] He was an angry father. […] [He] was a terrific coach and the girls just did like he - they were scared. They just - they wouldn't even go out, they just did what was expected.
Fiona Rourke was a neighbour of the family at The Channon, one year younger than the complainant. She and the complainant knew each other from infancy. They played together at The Channon from when the complainant was six years old. Ms Rourke sometimes stayed the night. She continued to visit the home once a week or once a fortnight up until the complainant reached the age of 13 or 14 and less frequently after that, tapering off to once every one or two months. Ms Rourke said that WG had "a strict relationship" with the complainant. However, from the whole of this long period of close contact Ms Rourke was able to recall only one instance of WG exhibiting anger or inflicting corporal punishment. On that occasion WG whipped the complainant with a skipping rope. Ms Rourke was unable to give any context for this, as to the age of the complainant at the time or what had made WG angry. Ms Rourke said the complainant did not react.
John G, WG's father, lived with his wife at The Channon for 16 months from April 2003 to August 2004 when the complainant was aged 11-12. He was called in KG's case to give evidence about events in October 2011. The Crown did not cross-examine him to suggest that, from close quarters in the family home, he witnessed conduct of WG that induced fear in the complainant, or any manifestation of fear on her part. During the period in which JG resided with the family the complainant alleges that counts 30-32 were perpetrated, involving confinement in the shed overnight and penile-oral intercourse the next morning (count 30, August 2003), penile-vaginal intercourse in her bedroom causing bleeding (count 31, December 2003) and a second instance of overnight confinement in the shed followed by penile-oral intercourse (count 32, January 2004). There was no evidence from JG that he saw anything to suggest that this was taking place or that he witnessed the sort of distress that the complainant would be expected to exhibit.
[212]
Conclusion regarding the complainant's fear of WG
Taking the evidence of the complainant and of AG at its highest, the instances of WG's anger and domestic assault that they described were not of anything like the severity that would be capable of proving beyond reasonable doubt that the complainant was so cowed by her father as to endure the regular gross abuse that she described without ever mentioning it to anyone or seeking help. The other witnesses, who were intimate with the family and had ample opportunity to observe them over the charge period, described, between all of them, only one instance of AG and CG receiving corporal punishment and one instance in relation to the complainant. Overall, their evidence contradicted the complainant's description of living in a state of such fear that it could explain her not reporting the horrors she alleges. If the complainant's description of her father's forcefulness were taken at face value the jury could not reasonably have been satisfied that this would explain how the offences could occur without the complainant ever confiding, at least, in her sisters, who she said were fellow sufferers of WG's harshness.
[213]
Absence of complaint due to ignorance of wrongdoing
The complainant said she did not appreciate the wrongfulness of her father's conduct until after she was subjected to sexual assault by an athletic coach in Doha in late 2009, when she was 17. It would be astonishing that a child of normal intelligence, even at the age of five when WG is alleged to have commenced penetrative intercourse with the complainant, could have thought that this was normal. If she did, such a belief at that innocent age is irreconcilable with the circumstance that the complainant did not speak freely about the abuse as it occurred during, say, the next three years. Without an appreciation that her father's sexual activity with her was wrong or fear that she may be implicated in wrongdoing, it is unimaginable that a child of between five and eight years would maintain secrecy about what she was experiencing. The jury could not reasonably have accepted that she would have been capable of keeping such a secret.
If the jury thought it in any degree credible that during the first three years or so of the alleged abuse the complainant would not have appreciated the wrongfulness of her father's actions, they would nevertheless have to have found it inconceivable that she could have continued in such ignorance through her teens. The complainant and her family did not live on a remote, isolated farm, cut off from the wider community and from access to mass media and the internet. The complainant attended three schools, successively, in Lismore, on the Gold Coast and at Burleigh Heads. She interacted with the students and teachers at these schools, had friends and was involved in athletics clubs. If the complainant had been abused as she described she could not have reached near adulthood without realising that WG's conduct of a full sexual relationship with her from the age of five and his ongoing violent sexual abuse constituted the most shocking depravity.
If, as the complainant asserted, she did not appreciate the abnormality of sex with her father until she was nearly 18, it would be all the more improbable that she should never have spoken about it with her peers as she matured. If her father's activities appeared normal, on the basis that she thought her family was different and special - as Dr Hoey-Thompson speculated - there would have been no shame and hence no inhibition against speaking of what was taking place.
[214]
Lack of cross-examination about perceived normality of the abuse
The complainant was not cross-examined about the improbability of having believed that her father's sexual relationship with her was normal. She was not challenged about what sex education she may have received at school; or why she refrained from sharing her experiences with her friends, if she thought those experiences were normal. The complainant was not challenged in cross-examination about the contradiction between her claimed belief that the conduct she alleged against WG was normal and her evidence that she also believed her father would kill her if she told anyone.
By the time the complainant gave her evidence she had suffered the onset of anxiety attacks from early 2007, the development of anxiety and self-harming through 2007 and up to late 2009, severe psychiatric episodes during 2010, hospitalisation that year and several further incidents of self-harm and attempts on her own life. That history may have contributed to counsel taking the very restrained approach to cross-examination that is evident on the transcript. The complainant was treated by the trial judge and by all counsel with great sensitivity, as a person in a psychiatrically fragile state, as no doubt she was. That approach is understandable given the medical history but it appears to have contributed to a lack of robust confrontation of the complainant regarding serious improbabilities in her evidence.
The evidence of AG that she was frequently touched indecently by WG during massages raised the possibility that he had engaged in similar acts with the complainant over some time. The complainant had alleged as much to Ms Frey in November 2009. There was also evidence from LA, AG and the complainant that WG at times caused his daughters to massage him in an indecent manner (see [1692] below). This evidence suggested that there were grains of truth in the complainant's allegations although, as I have concluded, the jury ought to have found that there was at least a reasonable possibility that she was grossly exaggerating his sexual misconduct towards her. The risk of reinforcing the complainant's evidence about other, lesser forms of sexual touching may have left WG's counsel a very narrow path to tread in cross-examining the complainant.
Whatever the reason for counsel's reticence, the fact is that cross examination of the complainant on behalf WG concentrated upon trying to establish alibis, unsuccessfully as the jury apparently concluded, instead of confronting the complainant over the improbability of her having suffered in silence 13 years of continual grave offending as she alleged.
[215]
Lack of contact between the complainant and her sisters
The complainant was 3 years younger than CG. She gave evidence that she "hardly ever" spoke to either of her sisters and that she "used to keep to myself a lot and I never told them what happened to me". AG gave this evidence:
I was very close with [CG]. I wasn't very close with [the complainant].
[…]
I shared a bedroom with [CG]. I wasn't really ever in [the complainant's] bedroom.
AG said that she and CG were close and "hung out" together but had less contact with the complainant who she described as very shy. This evidence could not reasonably resolve for the jury the inherent improbability that over all the years of alleged sexual assaults the complainant never confided in her older sisters. Although the complainant may not have been as close to the other two as they were to each other, all three of them lived within the same four walls. Other witnesses qualified the impression given by the complainant. The grandmother, LA, gave the following evidence:
Q From the times that you stayed at The Channon, did you notice that all these three girls were together most of the time?
A Yes
Q They were, from your observations, very close, the three of them?
A Yes.
[216]
Absence of complaint to KG due to perceived complicity
The complainant said that on one occasion she told her mother that she had been confined to the shed. She believed her mother knew that WG had put her there to assault her sexually "because [KG] knew what dad was capable of". The complainant said she refrained from speaking to her mother about being sexually assaulted with tools, for this reason:
I knew I couldn't tell her because that would be a form of me complaining and complaining in my family was not on.
The jury could not reasonably accept this as a basis upon which to reconcile the complainant's allegations of shocking things done to her with her acknowledgement that she never described the violations to her mother. As mentioned at [1615], the complainant's evidence included 22 instances of being tortured by the insertion of tools in her vagina or anus. She alleged numerous occurrences of oral sex with ejaculation in the complainant's mouth and one instance of her father urinating in her mouth. There was no evidence that her mother knew of this level of depravity and degradation. The complainant's failure to speak to her about it could not be explained on the basis that she perceived KG as complicit.
The complainant's evidence of her mother's knowledge of WG's sexual offending was limited to claims that KG encouraged her to give her father oral and vaginal sex and that KG participated in sexual acts with WG and the complainant on one occasion (counts 35-40, see [148]-[153] in the Chief Justice's judgment). Taking her evidence at its highest, the complainant did not assert that KG was aware of the range of torture and depravity that she was enduring. Her answer that "complaining in my family was not on" was very insubstantial. It could not reasonably resolve for the jury the improbability of the complainant having suffered what she described without ever having confided to her mother - even during WG's absences from the home - that her father's depravity had escalated far beyond sexual pleasure and had progressed to cruelty by the use of implements, confinement in a box and other means.
[217]
No evidence of detection over the 13 years
In order to explain why AG and CG would not have detected the offending the complainant said many of the sexual assaults took place in her bedroom. She said she had her own room and this was confirmed by AG. AG said that she did not go into the complainant's room and that on one occasion when she moved to do so WG angrily warned her away. The complainant did not suggest that there was any significant noise associated with her father's assaults upon her in the bedroom, such as might have attracted attention. She did not say that she resisted, protested or cried out. She said:
he was nice to me in my bedroom and then he wouldn't be nice to me after that.
The complainant said, in effect, that the occasions when her father took her to the shed would have been obvious to KG. On some of those occasions she told her mother that that was where she had been. The complainant said that when she was confined to the shed one or both of her sisters sometimes noticed that she had been absent from the house and enquired where she had been but that nothing occurred from which they would have learned that she had been held in the shed, or what her father had done to her. Despite this evidence, the improbability of the abusive acts having occurred on the family property but never having come to the sisters' notice is considerable.
The evidence referred to at [1695]-[1697] below established that from early 2004, when the complainant was 12 and AG was 16, AG was alert to her father's sexual interest in his daughters and was on the lookout to ascertain whether he was indecently touching CG in the way that he frequently touched AG herself. AG continued to reside in the home until her departure for the United States in January 2007, when the complainant was nearly 15. During the three years from 2004, when AG was aware of her father's tendency to touch CG and herself indecently, until she left for the USA, the complainant alleges that counts 33-63 were committed. These involved multiple instances of penile-vaginal intercourse in the complainant's bedroom, penile-oral intercourse in the shed, detention in the shed overnight whilst bound, penetration with tools and so on. The jury must have regarded it as highly improbable that all of this could have taken place without producing some sign of physical or nervous distress on the complainant that AG would notice and that it could have occurred without AG ever having been aware of the complainant's absence from the house in the grounds, with her father initially and then remaining out overnight.
[218]
Emergence of the complainant's psychiatric symptoms
The first sign of decline in the complainant's mental health was during the Graeme Briggs athletic meet in Hobart in early 2007. This was an under 20 and under 23-year-old championship and most of the competitors were 18. WG pressed one of the coaches to allow the complainant, then aged 15, to attend and compete. The evidence strongly supported an inference that the complainant feigned an injury that she claimed had caused her not to complete a race. A hospital examination failed to find anything. She suffered severe anxiety attacks during her return from Hobart to Brisbane, to the point where she had to be taken off a plane in Melbourne and assessed at a hospital before resuming her journey the next day.
The evidence was open to an inference that these developing psychiatric symptoms may have been contributed to by her father's high expectations and lack of positive encouragement, of which the complainant herself gave evidence (see [1632]). Ms Hannan, the coach referred to at [1645] above, gave evidence as follows:
I felt on occasions that the girls did too much training, they were pushed too hard.
[My] interpretation of [the girls'] behaviour was that they were a bit stressed simply from the amount of work point of view, I would suggest.
[The complainant appeared to be keen in her training] but she seemed less keen in some of her competitions.
[She] seemed to falter sometimes in competitions that she should really have won.
I formed an opinion that the expectations of [WG and KG] probably didn't match the ability level of [the complainant] on occasions.
Nicola Frey, another coach, said that in May 2007 when the complainant was 15 she became "increasingly agitated and upset" in the course of training at a camp in Canberra. She claimed to be in pain from a broken rib. Again there was a basis for inferring that this was not a genuine disability. Ms Frey suggested that she should cease training, at which "she just became almost hysterical". Ms Frey gave the following evidence:
She was adamant that I didn't ring her father. She said her father would be angry that she would be - that she was weak for not finishing the session.
After about, maybe half a dozen to eight 200 metre reps I was finally able to get her to stop. She wouldn't leave the training session though, she stayed very closely with me. […] During this time she was rambling consistently about being strong and that she didn't know what had come over her and she wasn't sure if it had been the altitude that had caused it. […] There was lots of excuses offered for why she had not finished that session.
[219]
A reasonable hypothesis consistent with innocence
It was an available inference that WG's high expectations and the complainant's stress about performing brought about her clinical levels of anxiety from early 2007. The evidence left open at least a reasonable possibility that WG sexually assaulted the complainant over a prolonged period as she described to Ms Frey; that is, during massages, in a different and less serious manner than as described in her evidence in the trial. There was evidence independent of the complainant that WG had on at least one occasion caused her and her sisters to touch his penis, in association with purported massaging (see [1664], [1692]-[1693]).
The evidence was incapable of excluding a reasonable possibility that the complainant may have grossly exaggerated and distorted WG's sexual misconduct, in the context of the psychiatric disorder that undoubtedly afflicted her from early 2010. The Crown case was that mental illness was caused by the extreme sexual abuse that the complainant described, for the first time so far as the evidence showed, at the end of 2011. That was after she had been in treatment for two years. It was at least a reasonable possibility that the stress of athletic performance expectations, combined with persistent sexual misconduct by her father of a much lower grade than alleged, had brought about the disorder of her mind and that that in turn caused her grossly to exaggerate WG's sexual attentions.
The numerous highly improbable aspects of the complainant's evidence referred to in these reasons rendered that evidence unreliable to such an extent that the jury could not find that it excluded the reasonable possibility that the whole account was a product of psychiatric exaggeration. Dr Hoey-Thompson explained to the jury the phenomenon of patients who have experienced trauma but can dissociate from it and conduct themselves as if the events had not occurred. The courts are familiar with the phenomenon of witnesses who have not experienced events but are able to convince themselves that they have - and who give evidence accordingly.
Unlike the Crown case, the hypothesis that WG's abuse of the complainant was limited to repeated inappropriate touching is not inconsistent with the absence of contemporaneous complaint or detection. The complainant could quite credibly have been reluctant to confront her very forceful father about such touching, just as AG was reluctant to confront him (see [1695] below). It would be plausible that she may have been uncertain whether these massages, when they commenced, were normal; or whether she should speak up about any misgivings she had, considering the openness with which all three of the girls were massaged by WG. WG could have gratified himself with respect to each of his daughters surreptitiously in this manner, hiding in plain view. It was reasonably possible that KG may have been aware of her husband's indecent massaging and turned a blind eye, which is what AG said occurred in relation to WG's sexual touching of herself and CG.
[220]
Corroboration - WG's tendency to sexual interest in his daughters
Evidence from which the jury could have concluded that WG was sexually interested in his daughters and that he had a tendency to act upon that sexual interest included the sexualised photographs of the three girls and evidence of the circumstances in which they were taken: see [394]-[407] in the judgment of the Chief Justice. It also included the evidence of AG.
AG said that WG routinely massaged her in a manner that was indecent and involved sexual assault. Massages occurred "very frequently" from when AG was aged 13 (in 2001, when the complainant was 9) until about 2005. AG gave this evidence in chief:
A [The frequency of WG massaging] would change. Like it would be maybe sometimes once a week, twice a week, it's a constant memory in my life. It was constant.
Q [W]hat parts of the body would he massage?
A Around my bottom area and the vagina area.
[…]
A The finger wouldn't always enter the vagina but the hands would always be close to or touching the outskirts of the area.
In cross examination AG said:
I don't recall ever confronting my father about the massages being inappropriate.
[…]
I don't recall ever being brave enough to speak to my father about it, I don't recall.
AG gave evidence of a particular massage in the living room of the family home when WG "trailed his finger inside" her vagina. She said that WG frequently required her to massage him in a manner that involved indecency, which she described as follows:
Q Now you said something about massaging him, your father?
A That followed after my massage where he would hop on the table completely naked with a small towel over his area.
AG said that her father "would always complain about pain around his abdominal area" and that she would always be required to massage close to his penis, resulting in her touching it. She described one occasion when he ejaculated while this was occurring and said:
I would brush against it because it's - in this incident I can't recall exactly if I touched his penis, but it was always there and I'd always have to massage in the area.
In cross-examination AG said that the manner in which her father asked her to massage him had no therapeutic value. She gave the following answers:
The area I was massaging my father, every time I massaged him is not an area that I think is needed to be attended to after a running race.
[…]
I never massaged his glutes from my recollection, I massaged his stomach area with an erect penis the whole time.
[221]
Corroboration - diaries, tools etc
I accept the submission of WG's counsel that the complainant's diary, the tools and underpants found in the surrounds of the family home and the words scratched in the timber-work of the shed provided insufficient corroboration to enable the jury to exclude reasonable doubts about the Crown case. Dr Norrie's evidence of pre-pubertal damage to the hymen, also, could not overcome the improbabilities. The doctor conceded that her scientific reasoning was not the subject of research and was based on very few cases, the number being uncertain but less than 10. Her evidence was indeterminate as to what had caused the state of the complainant's hymen.
The complainant's 2006 diary and her exercise book journal covering 1 March to 12 April 2007 contain regular entries on the theme of the complainant urging herself to be strong and criticising herself for poor performance in running. The opening pages of the 2006 diary contain these entries:
WEAK WEAK - YOU ARE SOFT - ALL YOUR FAULT - NO CRYING.
There follow, throughout 2006, several entries each month recording occasions when she thought her training had been a "bad session"; urging herself to "run faster", to "get tough" and to "keep going" and admonishing herself for being "soft" or "weak".
Whereas the 2006 diary refers to birthdays and other events, the 2007 journal is solely a record of the complainant's running activity. The months covered by the 2007 journal fall in between the complainant's anxiety attacks early in that year on her return trip from Hobart and her more overt anxiety breakdown at Canberra in May 2007, described by Ms Frey. The complainant's performance anxiety and the pressure she felt from WG's expectations, as observed by Ms Frey in May 2007, are evident in the 2006 diary and in the 2007 journal. The latter records, on several dates, "Dad not happy with session. Need to go harder, faster" and similar statements.
There are entries in the 2006 diary reflecting a desire to be away from WG, such as the following:
13 March - No dad today! Good day.
7 June - Rest day from Dad!
1 September - Rest day from Dad!
20 September - Didn't see Dad much today, was nice!!
Bearing in mind that WG was the complainant's coach and that there was ample evidence he pushed her very hard, these entries are at least as consistent with the complainant simply feeling the pressure of his training and expectations as with the possibility that she dreaded sexual assaults by him. If the latter was what she had in mind, the jury could not regard the entries as probative of any particular assault that was charged or even as proof of assaults, generally, of that penetrative and brutal type.
[222]
Application of the legal test of an unreasonable verdict
The complainant's allegations were not things about which she could be mistaken. Entertaining a reasonable doubt would involve recognising a possibility that either she was deliberately untruthful in her evidence or she had persuaded herself to a belief in things that never happened, possibly as an exaggeration of less serious sexual offences.
In order to suggest that the complainant had reason to fabricate her claims, defence counsel put that she blamed WG for her failure to achieve her goal of participating in the Olympic Games and that she thought he did not believe her allegation about having been sexually assaulted by a coach in Doha in December 2009 (at age 17). The complainant denied that she was hostile to her father on either of those grounds. The jury would have been entitled to find that these were unpersuasive suggestions of a reason to invent such serious allegations.
On the other hand, having regard to AG's much more plausible evidence of WG's sexual indecency towards her, there was a real possibility that the complainant may have been abused by her father to a similar level and that she had distorted and exaggerated this mistreatment in the context of her psychiatric illness. In my opinion the serious doubt about the plausibility of the complainant's account could not be resolved to exclude this possibility. As the jury must, in my view, have been left with a reasonable doubt about the complainant's evidence as a whole, they could not exclude such a doubt with respect to any charge against WG. It was not open to the jury on the whole of the evidence to find him guilty. I consider that the verdicts against WG were unreasonable or unsupported by the evidence.
[223]
KG's conviction appeal
KG's ground 8 (verdicts unreasonable or unsupported by the evidence) has been dealt with at some length by Fullerton J. I respectfully disagree with her Honour's rejection of that ground because the Crown case against KG, as with its case against WG, depended upon acceptance of the complainant as a witness of truth. Intractable improbabilities in the complainant's account of abuse by WG necessarily left a reasonable doubt over the whole, massive raft of her allegations, including those against KG.
KG's counsel placed heavy reliance on the fact that the complainant had suffered acute mental ill-health from early in 2010 and that her allegations against her parents were first made after the onset of psychiatric symptoms. Counsel referred to her as a "very troubled and mentally unwell young person". He made this submission:
A real possibility that cannot be discounted in this case is that [WG] was a fierce disciplinarian and athletics coach, that he may have interfered with [the complainant] in some way unknown to the appellant KG, that the child has "cracked" under the pressure of the father's excessive sporting discipline, has had a mental breakdown, and during the course of her treatment for mental problems has exaggerated an ever-expanding list of alleged crimes culminating in the bizarre claims about rape by the various tools mentioned in evidence - and because [KG] has not "turned on" [WG], has herself "turned on" [KG] with false allegations.
Without adopting the language of this submission, I accept that it reflects a real possibility that the jury could not exclude, with the qualification that there was evidence upon which they could have been satisfied that WG indecently touched the complainant during massages and that KG was aware of this and was unwilling to intervene. If, as it was open to the jury to conclude, the complainant was confused and disturbed by sexual touching such as she reported to Ms Frey in late 2009 and if she believed that her mother knew about it, KG's failure to intervene may have compounded the pressure on the complainant's mental health. It was a reasonable possibility open on the evidence that consequent feelings of betrayal by KG may have contributed to the complainant exaggerating her complicity.
The complainant's claims that her mother coached her how to give WG pleasure by making noises during penile-vaginal intercourse and by sucking his penis in a certain manner are allegations of most extraordinary moral bankruptcy. The same may be said of the complainant's allegation that her mother took part in a three person sex act with WG and the complainant at age 12 (counts 37, 38 and 40). It is so improbable that this could have occurred without the complainant mentioning it to her sisters or complaining about it to friends, teachers or members of her extended family, that I cannot regard it as open to the jury to have excluded reasonable doubt with respect to these allegations.
[224]
WG's application for leave to appeal against sentence
I concur in Fullerton J's reasons for dismissing WG's application for leave to appeal against sentence. If the convictions stand then I agree there is no sentencing error in any of the particular respects argued by WG. With respect to the ground that WG's aggregate sentence is manifestly excessive, none of the indicative sentences could be regarded as too high. Many of the crimes, as described by the complainant and accepted by the jury, were exceptionally grave instances of abuse. The degree of accumulation and concurrence that is implicit in the aggregate has produced a very substantial term of imprisonment that was warranted for the whole course of offending over many years. I am unable to see how a lower aggregate could have been arrived at, commencing from the suitability of the indicative sentences and applying even a modest degree of accumulation to reflect systematic abuse over a long period.
[225]
KG's application for leave to appeal against sentence
I agree with Fullerton J's rejection of grounds 1-4 of KG's sentence appeal, being the grounds in which specific error is asserted, and with her Honour's reasons on that aspect of the appeal. However in my view the aggregate sentence of 16 years with a non-parole period of 11 years was manifestly excessive. Although an appeal against sentence on that basis is concerned with the aggregate and not with the indicative sentences, if any of the indicative sentences themselves appear manifestly excessive that may contribute to a conclusion that the ground should be upheld. I consider the learned trial judge's indicative sentences for five of the 13 counts upon which she was convicted were excessive.
In discussing those five counts I will refer only to the objective circumstances. My view of appropriate indicative penalties and of the manifest excessiveness of the aggregate imposed at first instance takes into account KG's subjective circumstances, her low-risk of reoffending, the breach of trust and maternal responsibility involved in these offences and all other sentencing factors, which are comprehensively stated in Fullerton J's reasons. Those factors are common to all counts. The variable is the objective seriousness of each count.
Count 13 was an offence of aiding and abetting the complainant, at age 8, to engage in sexual intercourse with WG. The aiding and abetting took the form of KG "talking generally [to the complainant] about sex" and then telling her, "It makes it better if you make noises" and, "It would make it better for you and dad". The complainant said that KG was drunk at the time of this conversation and slurring her words. The complainant could not nominate a date when the conversation occurred, beyond saying that it was during 2000 and before Christmas of that year. The first instance of WG having sexual intercourse with the complainant after this was on 31 December 2000 (count 14). The aiding and abetting was apparently alleged to have been accessorial to that principal offence, more than a week later.
Undoubtedly KG's conversation with the complainant involved depraved encouragement to submit to WG's sexual abuse and it conveyed condonation of that appalling crime. However the offence involved no physical participation nor presence at the scene. The causative significance of KG's words is least doubtful. All the other evidence of the complainant and of AG was to the effect that WG did what he wanted and that he needed no encouragement. KG's failure to intervene and to protect her daughter from this ongoing conduct was gross neglect - but that is not what was charged on this count. The indicative sentence of 8 years was excessive for the conduct comprehended in the offence, measured against the maximum penalty of 20 years. No more than 4 years would have been an appropriate indicative sentence.
[226]
Annexure A (487625, rtf)
Annexure B (250824, rtf)
[227]
Amendments
09 July 2020 - [1] and [2] inserted bulletpoints
14 July 2020 - Redact name of complainant at [1408]
01 July 2022 - added Annexures A and B
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Decision last updated: 01 July 2022
Two counts of act of indecency with a person under the age of 16 years (s 61N(1) Crimes Act).
One count of concealing a serious indictable offence (s 316(1) Crimes Act).
Following a joint trial, WG was found guilty of all the 73 counts charged against him. KG was acquitted of three of the acts of indecency charges, one of which was alleged to be against AG, one against CG and one against the complainant. She was found guilty on all other charges.
On 27 and 28 October 2016, WG was sentenced to an aggregate sentence of 48 years with a non-parole period of 36 years, whilst KG was sentenced to an aggregate sentence of 16 years with a non-parole period of 11 years.
WG and KG have both sought leave to appeal against their convictions and sentence.
It was put to the complainant by senior counsel for KG that there was never an occasion when she left the house for the night when KG was in the house, saw her, and did not ask her where she had been. The complainant responded that there were many occasions when that happened.
In cross-examination by senior counsel for KG it was put to her that it was not true she was not allowed hot chips generally.
It was also put to her that she was incorrect in saying that KG was really upset and crying. She said that there had been many occasions when that occurred, stating that on one occasion there was a knife involved.
The complainant said that when it had been light for a bit, WG came back and removed the barbed wire, and forced her to eat little red hot chillies which were on the property. She said she had to chew them and swallow them, and that they were extremely hot. She said she remembered her mouth burning, finding it hard to breathe and WG threatening her. In that context she said he made the following threat:
"If you ever embarrass me like that again I'll lock you up in here forever and let you rot. Do you understand?"
She said she was absolutely terrified that she was going to die, and that he was going to leave her in there to die.
She stated that he then left the shed but came back not long after with a machete and some tools. She remembered that he put the tools on the ground and that she saw a tool which was "sort of an L-shaped tool" made out of metal, which had a "rectangular sort of shaped thing on the end of it". She said he also had some sort of spanner made out of metal, and metal scissors which were quite old and rusty. She stated that after he put her on the ground, he came over and hit her, and after untying her wrists, took all her clothes off and tied her back up.
She stated that she remembered WG saying to her that all he had ever tried to do was be a good father, and that after he tied her back up he came over to her with the tool and she felt him force the tool up into her vagina (Count 11). She stated it was the worst pain at that point that she had felt. She stated that he then picked up the scissors and she felt what she thought was him cutting her vagina (Count 12).
She said that thereafter WG left the shed and that she remembered seeing a lot of blood. She remembered waking up later in the day in a lot of pain and still bleeding. She then gave the following evidence:
"Q. All right. Do you remember what happened after that?
A. Ah dad - the shed door opened and dad came in, umm, and I remember he came and untied me and he, umm - got me - he told me to put my clothes back on, which I did, and I remember, umm, seeing blood. Still - I was still bleeding and, umm, he told me to follow him so I followed him out of the shed and down, umm, to the creek where he told me to wash the blood off, umm, so I got undressed again and I hopped into the creek and I remember stinging, awful stinging pain and I then went back up to the house with dad after that and I remember, umm, going and getting changed and I had blood on my underwear so I kept them in my room.
Q. Where did you keep them in your room?
A. I'm not sure, I just had them on the ground in the room. I just remember picking them up a few days later and finding them and getting in my room and picking them up with some paper that I had written stuff on and burying them. Umm.
Q. When you say you buried them, do you know where you buried them?
A. Yes.
Q. And where was that in relation to what we've seen on that map, the house, the shed, the garage?
A. It was down towards the - the - in the rainforest part. I went down there and, umm, moved some rocks and I dug a bit of a hole and put them in there and put some rocks back over them.
Q. And you say that you buried them with some pieces of paper that you had written on, do you remember what you wrote on the pieces of paper?
A. Just - they were just bits of artwork that I had done and some writing and the way that dad made me feel and things that were happening to me and I, umm, was too scared that he might find them or someone else might find them so I used to bury that sort of stuff, or as much as I could."
There was tendered in evidence against WG a drawing made by the complainant of the L-shaped tool, the metal spanner and pair of scissors she referred to in her evidence, which were labelled "A", "B" and "C" respectively, and a photograph of her and her brother taken at O'Reilly's in 2000 at Christmas time. These items were only tendered against WG.
A DVD prepared in 2012 which showed The Channon was also tendered. By reference to the DVD, the complainant identified various parts of the property that she had referred to in her evidence, including the location of the shed and the location of her bedroom.
In cross-examination, the complainant agreed that at the time she was at PB's place, her parents had separated and she lived with her mother and sisters at Goonellabah but visited WG about once a fortnight.
She agreed that it was possible that at the time she was at PB's house she had not seen her father for about six weeks.
It was suggested to her that at that time she had not had much to do with her father, but she said she saw him quite a bit. It was also suggested to her that on Christmas day she preferred to stay and play with her cousin rather than go to O'Reilly's with WG. She said she wanted to be safe and if that meant playing with her cousin then yes, but that she wanted to be where KG was.
It was suggested to the complainant that after the outing at O'Reilly's she did not go back to The Channon that evening. She said she remembered being at O'Reilly's and that the next thing she could remember was being at The Channon and that it was dark.
She agreed that WG was not living at The Channon during this period of time. It was put to her that WG was living at Melville House, and she said he went and stayed there for some time but that they "definitely did go back to The Channon".
It was suggested to her that following the O'Reilly's outing, WG took her and her sisters to Melville House and not The Channon, and she said that was incorrect and that it was definitely The Channon.
The complainant agreed that Helen Opie was the owner of Melville House, and that her aunt's property was located between Melville House and O'Reilly's.
The complainant agreed with senior counsel for KG that there was a game in which athletes and CG would put chillies that were grown at The Channon into their mouths and see how long they could hang on to them. She said it was WG's game and that it was a "toughness game". She said that the way WG would describe it was "that if you can handle this pain, you know, then you can run faster, you can be better".
The complainant also gave evidence that she remembered waking up on New Year's Day with blood on her sheets, and that she took them to the laundry and put them in the washing machine. She said that WG came in and that she got in trouble for not putting other things in with the sheets. She said that after the sheets had been washed, she put them in the dryer, and WG again came in and was angry because she put the sheets in the dryer, and stated she had no right to do that. She stated that WG grabbed her by the arm and pulled her out of the house down to the creek and stuck her head under the water.
In that context, the complainant said there were other times apart from that when WG would be violent to her. She stated that she remembered this occurring from a very early age to her, her brother, her sisters and her mother.
It was put to the complainant in cross-examination that on New Year's Eve in 2000, WG was in Brisbane in the company of a lady called Michelle Fountain. She said she had never heard that name. She agreed it was possible that the following day WG attended the Accident and Emergency Section at the Tweed Heads Hospital for a suspected strained ankle.
It was put to her that WG was not driving around that particular day at Lennox Head. She said it was definitely New Year's Eve.
The complainant said that WG was not living permanently at Melville House at the time. She agreed that a person named David, who was her swimming coach, was staying at The Channon during this period and that WG was not there. However, she denied that David stayed the whole time whilst her parents were separated.
The complainant denied that she went to Lennox Head to celebrate New Year's Eve rather than to look for KG. She also denied that she never saw her father between 26 December 2000 and 20 January 2001. It was put to her that she saw WG for four hours between 4 pm and 8 pm on 20 January 2001, and she said she could not remember that.
It was also put to her that WG never scolded her for using the washing machine or the dryer and she denied this.
The complainant was referred to her statement to the police where she had said that KG spoke to her about sexual matters from when she was about eight years old. She said there used to be sex education at school, but that she used to shut down a lot and block a lot out. She said her focus was on making sure she could pleasure WG well.
The complainant stated that she recalled one particular time this occurred at her grandparents' place at Tanglewood. She said at that time she was maybe 10 or 11. She stated she remembered she was in running gear. She said there were two levels in her grandparents' house and that she, her sisters and WG were upstairs. She said that WG was lying down with a towel over his groin area and that she, AG and CG were around him, and he was getting them to massage his lower stomach, his groin and under the towel, and she remembered that she was touching his penis.
The complainant stated that she recalled on one occasion CG had a massage and thereafter got up and spoke to KG. She stated she remembered CG coming to KG quite upset and saying something like, "his penis was out of his shorts", and that her hand was touching it. She stated she recalled KG saying that it was normal in a situation like that for a man to get an erection. The complainant said that at the time when she was receiving massages from WG, and he was touching her or she was touching him, she thought it was normal.
It was put to the complainant that WG massaged her only a few times and it only occurred when she was 13 and 14 years old. She said he did massage her in that period but that he also massaged her when she was much younger as well. It was put to her that she was never naked during any massage and she denied this. It was also suggested to her that every time WG massaged her one or both of her sisters were in the same room and she agreed that there were times when AG and CG were there as well. However she denied that one or both of her sisters were there every time WG gave her a massage.
She rejected the proposition that WG never massaged her at her grandparents' place.
The complainant said that after WG called her hopeless, he pulled his penis out of her mouth, pushed her back and pulled his shorts up. She said she remembered he went and picked up the same tool that he had used the day before, the L-shaped tool, and that she felt him force it up into her vagina (Count 29). She said she was already in a lot of pain from what he had done the day before and that this hurt her a lot. She said he was angry and kept forcing it. She said he took it out and left her where she was, went out of the shed and came back with barbed wire. She said at the time he was calling her weak and said that she would never be strong enough to be the best athlete. She then gave the following evidence:
"Q. Sorry, you said he then went and got something?
A. Yes, he went just outside the shed but he came back and he had the barbed wire and I was up where I was still and I had scrunched myself upright into the corner and I remember he put it across my body and he attached it to a nail or something that was there. I remember there was - he attached it to my top right of where I was sitting and my bottom left.
Q. When you said he put it across you, was it touching you or was it just around you?
A. Yes, it was touching against me so that if I moved it would dig into me. Like if I didn't move then it wouldn't hurt."
The complainant stated that WG then left the shed and that she stayed there for another night. She said he came back the next day when it was light again. She stated that by that stage she had not had anything to eat or drink so she was exhausted. She said she remembered he came into the shed and removed the barbed wire and then took his shorts off. She said she knew what she had to do because she wanted to get out of there and wanted to have something to eat and drink, and she remembered she got up onto her knees, held his penis and used her tongue on the top of it until it became hard and then put it in her mouth and sucked on it until he ejaculated in her mouth.
She said that WG then took his penis out of her mouth and untied her, and she put her underwear and shorts back on and went back to the house with him. She stated she went to her bedroom and remembered only seeing JG in the house. She said she got changed and that she hid the underwear that she had on in her cupboard. She noticed she had blood on her legs. She then gave this evidence:
"Q. I was going to say you noticed blood on the inside of your legs?
A. Yes, dried blood.
Q. What did you do about that?
A. I went down to the creek, the little creek, and I washed it off. I didn't want to go back up to the house because Mum and my sisters were out running and it was only Dad and [JG] up in the house, so I stayed out in the garden and where I was, where Mum and - where we'd come back from our long run, I could hear like around on the road, so I heard them coming back around and I went and met them up at the driveway.
Q. Did you speak to one or both of your sisters?
A. Not then but it was later on that day that I spoke to them.
Q. What did they say to you?
A. 'How's Fiona?'"
The complainant said she recalled drawing a picture of the barbed wire when she made her statement to the police. She identified the picture and it became Exhibit 11.
It was suggested to the complainant in cross-examination that she did not go back to The Channon the first weekend after she started at the school, but went to the beach for a couple of days with her family. She denied that and said that the family went back to The Channon on the Friday afternoon.
In cross-examination by senior counsel for KG, the complainant agreed that when she said her father pulled her through the kitchen where she saw KG, she could not remember whether her mother saw her, but that she just remembered seeing her mother.
The complainant agreed with senior counsel for KG that she did not tell her mother why her knees were grazed. She said that WG butted in and said she had fallen over, so there was no need for the complainant to say anything to her mother. She said she did not tell KG the true reason because that would be complaining, and she did not want to get into more trouble.
She also agreed that she did not tell her sisters, saying she did not talk to them about that sort of stuff.
The complainant agreed she did not tell KG about what happened in the shed or down at the creek. She rejected the proposition that she was never absent from the house overnight in the circumstances she described. She said she was not taken to the shed first, but that she was taken to the creek and was then pulled up past the top part of the property not near the house. She said that her last memory about the whereabouts of her sisters was that they were getting out of the car.
It was suggested to the complainant that she was very close to her sisters and she denied this. She denied that she was extremely close to CG all the time she was living at The Channon. She stated that CG was very close to KG and AG, but not to her.
The complainant said she stayed in the shed the whole night but did not go to sleep, and that she saw a bit of blood and remembered seeing some tools. She remembered seeing one that WG had used several times on her before, and also one that she had not seen before, and some type of spanner.
The complainant said that a little later her father came back and picked up the spanner. She felt him force it up into her vagina (Count 43). She said he forced it up a few times, and then untied her and told her to go with him. She remembered she was bleeding and that when they got down to the creek WG told her to clean herself off.
The complainant said whilst she was in the water WG jumped in, grabbed her head and pushed her head under. She said he did it only once but that it was for a long time. She said she remembered getting out of the water and WG telling her to go back to the house, and that she was not allowed anything to eat, but to get some gardening clothes on and go and work in the garden.
The complainant identified the drawing of the spanner which she had made when she gave her statement to the police, which was labelled "F". The drawing was admitted in evidence.
The complainant accepted in cross-examination that she never sought medical attention for the injuries she sustained as a result of these assaults or the assaults the subject of Counts 50 and 51.
The complainant agreed in cross-examination that the tool she was referring to in this incident was tool "G". She was referred in particular to her answer in the statement she gave to police that WG used one end of the tool and put in inside her vagina, and that she felt the other end of it underneath her bottom and up against the top of her bottom area. She said by that she was referring to her lower back.
She agreed that on 5 December she travelled to Traralgon in the Latrobe Valley. However, she rejected the suggestion that she stayed there overnight, saying that they stayed at Marlo.
She agreed that on 8 December she attended the Australian All Schools and Youth Athletics Championships at Sydney. It was suggested to her that she did not go back to The Channon after the Pacific School Games and before the Australian All Schools Championships, and she said she did not know, she just remembered what she could remember.
The complainant said she stayed in the shed for another night. She said that she had not had anything to eat or drink and remembered feeling weak and dizzy. She said she remembered WG coming into the shed in the morning holding little red hot chillies, which he said she had to chew and swallow.
She said that WG walked out of the shed and then came back, and she saw that he had barbed wire which he attached across her body. She then gave this evidence:
"Q. And did you stay there with the barbed wire -
A. Yeah.
Q. -around you?
A. Yes, and dad left and I stayed there for the rest of the day and then when it got dark I remember seeing a light coming down to the shed and dad walked in and I remember he took the barbed wire away and he untied my wrists and he told me to go up to the house and go straight to bed, but I walked back up with dad the long - the long way back up to the house past the washing line and to my bedroom window.
…
Q. Okay, so you got back to your bedroom window or back to your bedroom where the window was and then what happened?
A. Dad told me to climb through my window because my window was big and for quite awhile, well, for most of the time growing up it didn't have a flyscreen on it. I - when I climbed in dad went back around to the front of the house and I climbed in and I remember just being really thirsty and weak and I knew how much trouble I'd be in if dad found out that I went back out, that I went back out, and I went and got a drink, because I just knew that I really needed one and I came back up to the house and I went to bed."
During her interview with the police, the complainant drew the different type of spanner she said was used in this instance. The spanner was labelled "H", and a copy of that drawing was admitted into evidence.
The complainant said that WG shut the lid and that she heard the latch. She said she heard WG walking out and the roller door of the garage shutting. She said she was terrified. The complainant said she stayed in there the whole night until she heard the roller door open and saw light coming in through the holes of the box. She remembered hearing CG saying, "She's not in here". She could hear CG and KG talking. She said she did not yell out because she was scared of what WG might do if she said something.
The complainant said that not long after, WG came and opened the box and told her to get out, saying, "I hope you've learnt your lesson". She was then asked whether she noticed anything about herself and gave the following answer:
"I remember I had like dried blood on the left side in my hair and I remember when I changed my underwear that there was blood in my underwear. I wanted to wash that out, out of my hair, so I went down to the creek and washed my hair and I just remember seeing mum and [CG] later on and asking where I'd been and I lied and said that I was in the garden."
In cross-examination, she agreed she told the police it felt like it was ripping when the tool was being inserted in her vagina. She said that most of the tools that WG used felt like "a ripping".
She agreed that she made her statement to the police over a three month period and that the allegations she was making were very serious. She was asked what she meant when she told the police, "I could see the other end of the tool on my stomach", and said she meant that she could see the other end of the tool coming up over her stomach. It was put to her that if WG was doing what she claimed with tool "G", the other end would not be able to touch her stomach, and she said she was aware of that but that was not what she remembered. It was put to her that WG never inserted tool "G" or any other tool into her vagina at any time and she stated that this was incorrect. She also denied the proposition that WG had never assaulted her.
The complainant agreed that on this occasion she was bleeding a lot, and was "dripping with blood". She said she was quite tall at the time, having had a growth spurt between 11 and 14 years of age. She was asked whether in 2008 she was about 5 feet 8 inches tall and said she thought so, but could not be exact.
She agreed that her evidence was that immediately after the incident she was hit across the side of the head. She said she could not remember any bruising but remembered that when WG got her out of the garage she had blood in her hair.
She was asked if at any time after she had been assaulted anyone said anything to her about any injuries. She said not that she could remember, apart from her family.
She agreed that before she gave her statement to the police she did not tell anybody that WG had placed her on a jumping ants nest.
It was put to the complainant that the box in which she was placed was 60 centimetres long. She said she did not know how long it was, but that it was big enough for her to be pushed into. It was also suggested to the complainant in cross-examination that there was no latch on the box where WG kept his diving gear, and she disagreed.
The complainant agreed that within two weeks after these incidents she won a very important race. It was suggested to her that this incident would have affected her running abilities, and she said she was in a lot of pain but that she was in a lot of pain a lot of the time and that she had learnt to deal with it. She said she was very tough and pushed through the pain because otherwise she would end up in the shed again.
In cross-examination, senior counsel for KG referred to the complainant's evidence that she lied to KG and CG when she said that she was in the garden. She then gave this evidence:
"Q. And made no mention of the box or anything else that had happened to you?
A. No, because I would have got in a lot of trouble.
Q. What is your evidence, did you ever tell your mother about the box?
A. No.
Q. Did you ever tell [CG] about the box?
A. No, but they knew about the garage.
Q. Yes, I appreciate that. I am asking you about the box that you described that you were put in. Did you ever tell your mother that?
A. No, but there were times that us girls and [JG] got put in the garage for punishment but other times as well, especially [JG], so I assume they were checking because they thought I might have been in there.
Q. But when you were put in the garage are you suggesting that you were put in the box by what, your mother?
A. No, that's not what I am suggesting. That is not what I am saying. I am saying that I never told mum that dad put me in the box. I never told mum that.
Q. Thank you.
A. But I was asked by mum and [CG] and [AG] on other times if I had been in the garage or the shed, so -
Q. And what do you say you said?
A. Sorry?
Q. When they asked you if you had ever been in the garage or the shed, is that what you said just then?
A. Yes. That's what I said.
Q. What do you say - could you deal with your mother firstly - that you said to your mother about those topics?
A. Well, I did tell - I told her the truth, sometimes I told her that I had been in the shed, but I never told her what happened, and same for the garage.
…
A. Well, when she asked me, sometimes, sometimes and I can't specifically remember every time, but there were times that when I'd been in the shed that mum had asked me if I had been in the shed and I told her yes, I had been in the shed, but I never told her what dad did to me in the shed.
Q. Now can you give us an example?
A. Again, I can't specifically remember the times.
Q. And what are you suggesting, that she just said out of the blue to you -
A. No -
Q. Have you ever been -
A. There were times that I wasn't in my room, there were times when I wasn't in bed, so I guess mum was wondering where I was, just like [AG] and [CG] were asking me if I was at Fiona's. That is what I assume, I don't know.
Q. So do you say that your mother asked you had you been in the shed?
A. Yes. There were some - yes. I can't specifically remember the times that - but there were times that - there were times that I can't remember exactly what happened in the shed and I have already said that, like the times that in - I have spoken about, the times that I can clearly remember.
…
Q. But I am trying to get clear with you, you are suggesting, are you, that on an occasion, if you could take one, when you had actually been in the shed your mother asked you specifically had you been the shed when she first saw you after you left the shed, is that right?
A. No, no, because I can't specifically remember one occasion that - it was just that that was - I just remember having some conversations with mum that that wasn't the - that wasn't the only thing in the conversation. I just can remember that - I just remember not lying to mum and actually telling her that I was in the shed, but I - and the reason why I can remember that is because I never told mum about the tools, I only told her that I had been in the shed and that is the only reason I can remember those times, but I can't specifically remember the occasions or when they were."
It was suggested to her that she was making it up when she said that KG had asked whether she had been in the shed when she was absent from the house. She said she was not making it up. She agreed that KG had never asked her if she had been in the box, and said she did not think KG even knew about that. She agreed her mother never put her in the garage.
The complainant was asked about the evidence which she gave in respect to this count which I have set out at [202]. She agreed that she told the police in her statement that she had told KG she had been out in the garden, which was incorrect. She also agreed that she told the police that every time she went to the toilet that day, she noticed she was still bleeding from her vagina, and that in the days following she noticed she had blood on her sheets, so she waited until KG was not at home and washed them. She was again cross-examined concerning her statement to the police that one end of tool "G" was on her stomach, and accepted that that was incorrect. She said the first time she realised the police statement was incorrect in this regard was when it was brought up in cross-examination.
The complainant said that because she had dark pants on, she did not realise that she had been bleeding quite a bit until she returned to the house. She noticed that the blood had soaked through her underwear onto her pants.
In her interview with the police the complainant drew a picture of the item she had described as a nail with a loop on top it. It was labelled as Item "K" and became Exhibit 19.
The complainant said that on the following day, in the morning she buried the underwear that had blood on it from the day before down near the big creek in the rainforest where there were some rocks. She said that later that day she buried the tools labelled "G" and "K". She did this when WG and KG had left the house to go somewhere. She said that she went to the shed and got them out, and took them to the other side over the little creek, somewhere where she knew that WG could not find them. She said she did a similar thing to what she did with her underwear. She said she moved some rocks, dug some of the dirt away with a rock and her hands, put the tools in the hole where the rocks had been, and put some dirt, rocks and leaves back over the top. She said she chose those tools because she was really upset from what had happened the day before and did not want WG to use the same tools again. She said she was scared as to what would occur if she buried all the tools.
The complainant identified on a map where she buried her underwear and the tools. The map with that identification became Exhibit 20.
In cross-examination, the complainant was referred to her answer to the Crown Prosecutor that she could feel the other side of tool "G" "going up over [her] stomach". She said she could not recall giving that answer but said that she could feel the tool inside her vagina. She accepted it was possible that the answer she gave to the prosecutor was in error, because she never felt the tool on her stomach. She then stated that the top part touched her stomach, because of the way she was lying, but that the whole thing was not touching her stomach.
She was referred to the fact that she told the police that the bottom part of the tool was on her stomach and accepted that was in error.
In further cross-examination by counsel for WG, she denied placing the tools and underwear in the shed in 2010 or 2011 rather than 2007. She also denied that she put the barbed wire around the tree in 2010 or 2011.
There was also an entry on 18 March, which said, "Night in shed. Nice day today" and an entry on 4 April which said, "Dad didn't wee. Use other way tonight", which she described as a note to herself to try and please WG. There was also a note on 5 April which said, "Dad wee. So no tolls", and she said the "no tolls" referred to "no tools". There was also an entry on 20 May which said, "No shed, good session" and on 21 May, "Long run, no shed this weekend".
There was also an entry on 3 June 2006, which said, "Was freezing last night in shed" and an entry on 19 June which said, "Counted 3 nights in the shed, only water and chillies".
There was also an entry on 5 August which said, "Didn't make him wee, got creek, shed but didn't stay in, long run, bed nice and soft" and an entry on 14 August which said, "I didn't wee, he is angry, really angry". An entry on 19 August said, "Shed", and on 20 August, "Shed, head bleed for a bit, wouldn't stop dripping".
The complainant also referred to an entry on 26 August which said, "Dad angry, can't find tolls", "PS I buried them" and "SHHH". She stated that was when she buried the tools.
There was also an entry on 7 September, which said, "Didn't make him wee, he got new tools, really hurt, have to be tougher next time" and an entry on 10 September which said, "Shed for sure, no food".
The complainant also referred to an entry on 13 November which said, "Got the box, creek and shed today. Serves you right, sad face".
The complainant also referred to an entry on 26 December which said, "Didn't make dad wee, really angry. Session pm", and on 27 December, "Shed, shed" and "Tools, no running".
It was put to the complainant in cross-examination that AG did not attend the Telstra All Schools National Championships.
The complainant then said he took the machete away from her neck and pulled her into the back right corner. He left the shed and then came back holding barbed wire. She said he put it over her and then left her.
The complainant said she stayed in the shed the whole night and that she could not move. It was not until it was light that WG came back and took the barbed wire away and untied her. The complainant said she remembered he told her to go back to the house and put some clothes on.
The complainant recalled later in the day finding in her cupboard a pair of underpants she had hidden years before. She said she wanted to get rid of them so she took them out of the house. She said she also wanted to bury some more tools.
The complainant said she had hidden the underpants in 2003. She said at the time she had hidden them they had blood on them, had a rip in them and were dirty from the shed.
The complainant said she took the underpants out of her bedroom, and went down to the shed with them and picked up two of the tools. She said one of them was the black plastic handle she had labelled "I", and the other one was the long nail which was labelled "D". She said when she picked them up she heard someone coming down to the shed and freaked out because she thought it was WG. She said she went to the back of the shed because there was wood at the back of the shed then, and shoved her underpants right down the bottom behind the wood. She said she stuck the plastic handle in a gap between the wood and the shed, and chucked the nail onto the ground and put some leaves over it.
She said that WG came into the shed and asked her what she was doing in there. She said that she lied and told him she was cleaning up where she had gone to the toilet. Her father told her to go back to the house.
It was suggested to the complainant in cross-examination that she had in fact moved out of her bedroom and into AG's bedroom in January 2007. She denied this.
The complainant then gave evidence of an exercise book in which she wrote entries in 2007, although she could not be 100 per cent sure that every entry was written in 2007.
At the start of the diary there was written a list of things from (1) to (8). They were:
"(1) Do not cry.
(2) Do not be weak.
(3) Don't get to the point where dad asks you to pleasure him, just do it.
(4) Run hard.
(5) Do not stop holding breath.
(6) Make sure dad's coffee is at the 30 seconds he likes.
(7) Dad is always right.
(8) Listen to dad always."
She said she wrote point (3) because she remembered thinking especially around 2008 that if she pleasured WG or did things for him without him asking her, she would not get punishment. She said when she wrote "pleasure dad" she was referring to massages.
The complainant said that the instrument used in this case was the spanner which she had previously drawn and labelled "H".
The complainant denied that she consented to any of these activities.
In cross-examination by senior counsel for KG she agreed she did not tell either her mother or Doug Connors about what had occurred. She agreed she knew that Doug Connors was a police officer. It was suggested to her that if she did not want to speak to Mr Connors on any detail about matters involving her father, she could have asked him to arrange for her to see a policewoman. She said she could not have because she was still living at home with WG.
She agreed that after the incident in Doha (see [316] below) she was seeing Mr Connors in his official capacity as a police officer and for that purpose went to Byron Bay Police Station. It was put to her again that she could have asked Mr Connors if she could speak to a policewoman. She stated that never crossed her mind, as she thought WG would kill her if she told anybody at that point.
She agreed she was about 16 at the time the incident the subject of Count 72 occurred.
She agreed she continued to keep the events secret after she was told by the surgeon that she did not have appendicitis.
The complainant then gave this evidence about what occurred when she returned to Australia:
"Q. Now when you returned to Australia, did you tell anyone about what had happened?
A. No, I didn't straightaway, and I'd spoken to somebody over there, because of other females talking to other team members - to the coaches and I think they might have called mum and dad to tell them that something happened over there, but it wasn't until a bit later on that I'd actually told mum what had happened because I think they noticed there was a change in me in the way I was when I came back from there.
Q. Did you speak to your mother about it?
A. Yes, I spoke to mum about it and I told her what had happened.
Q. And what about your father, did you speak to him about it?
A. Yes, well, he found out eventually and he sat down and was really angry. He talked to me about it.
Q. Did he say anything in particular that you can recall?
A. He told me that no-one else was allowed to touch his girl, that he was the only one that was allowed to touch me and he also told me that - wanted me to go to the police and dad told me exactly what I had to say to the police.
Q. And what was it that your father told you you had to say?
A. He wanted me to use the word 'raped'.
Q. Did you eventually report that incident in Doha to the police?
A. Yes, I did.
Q. Did you tell the police officer what had happened when you were in Doha with Rod?
A. Yes, I did.
Q. Did you tell the police officer what your father had told you to say, that is -
A. No, I just told them what happened.
Q. Did your father later have a conversation with you suggesting something else that you should say to the police?
A. I can't remember."
In her evidence the following day, the complainant said she recalled a further conversation with WG. She said he told her to call Doug, who was the police officer, to tell him that she might have been drugged by Rod when he made her a drink. She said she did so.
It was suggested to the complainant in cross-examination that in the lead up to Doha in 2009 her father was away a lot during the year. She agreed that at the start of the year he was in Papua New Guinea for six weeks, but rejected the proposition that he was away almost every month on and off for the whole year. However, she said it was possible that he was away for 40 days between January and March, 18 days in June, 19 days in August and 25 days during September up to 10 October. The complainant was asked in that context whether she commenced to feel neglected by WG because he was not focusing on her coaching. She denied this, saying that she would have liked to have been neglected by him.
The complainant said she had previously written "trapped" in the wood frame "like before with some other stuff I had written on there".
The complainant recalled that on 26 or 27 December 2009, she went from Queensland to Falls Creek to take part in altitude training. She said WG also attended the camp but that he had his squad in a separate area at Falls Creek.
She said that on maybe the second night of the camp, she could not stop thinking of what WG had done to her and kept having flashbacks and memories. She said she got a razor and cut her left wrist but did not cut it very deep and did not know why she had done that. She said she thought it was to try and take the pain away.
The complainant stated that her thoughts about WG were getting worse and that she took a 10 pack of Panadol. She said she felt really upset and remembered that one of the other athletes was really concerned about her because she was not making much sense. She said she recalled the trainers "Nicky Frey and I think it was Tim" coming in, and remembered begging them not to call WG to tell him what had happened.
She stated the trainers said they had to call WG because she was under 18. WG came down and was really nice to her in front of them. She said he then took her outside for a walk up a hill and grabbed her wrist, telling her that she would never be strong enough to kill herself and that if she really wanted to kill herself she would have to cut deeper and cut the other way. She said he told her that no-one needed to know what went on at home and that she knew what would happen if she did tell anyone.
The complainant said she did not return to the accommodation with the athletics team but had to go with WG who had a minibus. She said that he sat her down on a couch in the lodge where he was staying and kept saying how disappointed he was with her.
The complainant said she got up and ran away and kept running. She said she had her phone on her and called Max, telling him she was scared of WG and what had happened. She recalled Max asking her why she had done those things to herself. She then remembered WG ripping the phone out of her hand and him telling Max not to worry and that everything was fine. She said that WG said to her, "You're so dead". She started to run again but WG grabbed her arm and pulled her to the ground and kept holding her down, saying "Settle down".
The complainant said that WG told her she would be sleeping with him in his bedroom that night. She recalled he slept naked and that she kept her tracksuit pants and t-shirt on. She said WG started to talk to her, saying that if she did certain things to him that he would forgive her for what she had done. She said she started to rub his groin area and his penis, and that he told her to put it in her mouth. Once his penis became erect, she sucked on it until he ejaculated in her mouth. (This was an uncharged act.)
The complainant said that the following day WG took her for a walk and told her that she was not to have anything to do with Max or his family anymore and that if she did, bad things would happen to them. She said that WG also told her that she had to call either Nicky or Tim to organise a meeting and to explain that she behaved the way she had because of what had happened to her in Doha.
The complainant said that she had a conversation with Nicky about staying with her father, telling Nicky that she did not want to go back to WG because she was scared of him. She did not go into much detail of what had been happening. She said that Nicky called WG and lied for her, telling WG that she had fallen asleep on the couch.
In the following days she returned to The Channon. She said her father came back a few days later.
In cross-examination, the complainant agreed that she was at Falls Creek between the time she went to Doha and her admission into the Mental Health Unit. She agreed that WG was at Falls Creek with his own squad. She agreed she had a hot chocolate with him at a café.
The complainant rejected the suggestion that at that meeting at the café, WG told her he had asked Tim O'Shaunessey to take over the role of coaching her. She said that was the first she had heard of it.
The complainant rejected the suggestion that it was WG who called Max, not her. It was put to her that WG called Max twice.
She also rejected the suggestion that WG handed the phone to her and moved away so she could have some privacy while talking to Max on the phone.
The complainant said that she got admitted back into hospital for a while, and that towards the end of 2010 she got out and lived at the Byron Bay Youth House and started to have less and less contact with her parents.
The claimant rejected the suggestion put to her in cross-examination that she returned to The Channon for a period of six weeks rather than three to four. She agreed that on one occasion Max Pye came and stayed with her in the bunkhouse and that WG got upset because Max did not ask for permission. She could not remember whether that was the last day she stayed at The Channon.
She rejected the suggestion that she was blaming her father for not coaching her to achieve her goal of going to the Olympics.
Senior counsel for KG referred the complainant to a letter that the complainant wrote to KG whilst she was in the Mental Health Unit at Lismore in 2010 (Exhibit 51). She said that where she wrote, "I know things have been really hard the last few months", she was referring to her trying to kill herself. She was asked what she was referring to when she said, "I hope that what we talked about the other day isn't upsetting you too much", and she said that it was around the time she was starting to talk about not coming home.
The complainant was asked about her comment in the letter which said, "Mum, you mean a lot to me. I need you through this time", and she said that was a sincere belief she had at the time. She was referred to her comment which said, "Things are going to get better. Well they are a lot better", and said what she meant was that she was not being abused by her father.
She was also referred to her comment which said, "You are a wonderful mum and right now, I need my mum. I look forward to spending time with you, going for a drink down at the pub". She was asked whether that was a sincere belief, and she said she believed that KG was the best thing she had growing up and that she was reaching out to KG because she needed her and missed her.
The complainant was asked whether she left the adolescent ward of the Mental Health Unit around her 18th birthday. She said no, that she escaped and tried to kill herself, so they put her in the adult ward where there was high security. She said she did not cut off contact with KG, but that the staff at the hospital thought this was for the best because every time KG came they saw that the complainant was extremely upset afterwards.
The complainant said she saw KG a couple of times at the high dependency unit, and that KG was trying to convince her that it was best for her to come home. She said KG was trying to convince her that WG had changed. She said she understood and believed KG when she said that WG had changed and that that was enough for her to go home with KG.
It was put to the complainant that none of the incidents involving KG ever took place and she denied this.
The complainant said that she eventually told a nurse what had really happened after she and WG left the gravel car park, and told the police that her father had sexually assaulted her. She thought she told the police straight after telling the nurse.
In cross-examination she stated the police came to the hospital, and that she made a statement but she did not disclose any sexual assault.
She also agreed that around the time the incident occurred she self-harmed many times.
The complainant rejected the suggestion that WG was at home at The Channon with KG and JG at the time the incident was said to have occurred.
The complainant said she remembered being able to pull her arms away and sitting up. She said WG was out of the car and that she was sitting in the seat behind the driver's seat. She said she got out and ran around to her car and that her keys were still in the ignition. She reversed and she turned left, heading back towards Lismore, and then did a U-turn and headed towards the TAFE.
When she arrived at the TAFE she saw her friend, Donna, who asked her what had happened. She said she did not say anything at that point, but then the teacher came out, and Donna took her down to the head teacher. She told the head teacher what had happened, because the teacher was aware there was an AVO out on WG. She recalled that the teacher called her case worker and her boyfriend Max.
The complainant said that Max took her to the police station and that she told the police what had happened to her.
The complainant identified a map of the area, pointing out where she travelled during the period the subject of this incident. She also identified a series of seven photographs in an envelope with the heading "BP Wollongbar". She identified from those photographs where she parked the car.
The complainant was also shown CCTV footage of the Woolworths petrol station at Lismore, which showed her walking to pay for petrol, walking back to the car and driving away.
The complainant also identified photographs of her taken on 13 October 2011 which showed the injuries she sustained as a result of the alleged incident.
In cross-examination, the complainant rejected the suggestion that at the time this incident occurred WG was at his parents' house. She said they did not live very far away.
She then identified a tool which she had given the letter "G" which she had buried. She also identified the item she had labelled "K", and the underwear that she had put behind the wood in the shed.
She was also shown a piece of wood and said that the words engraved on it were "Mum is coming", "trapped", "dad", and "dad" again.
The complainant also identified her T-shirt which had been ripped after the incident in Lismore when the complainant thought she was meeting her brother. The complainant also identified some photographs of herself and her sisters which became Exhibits 42, 43 and 44 in the proceedings.
The complainant identified Exhibit 42 as being a calendar that WG put together in 2005. She identified photographs from July to December. She said it contained photographs of her, her mother and her sister.
The complainant said that WG took the photographs, and that he told them how to be positioned in the way they were. She said she was 13 at the time.
She was asked about the photographs for "August" and "September", and said her father took them at the Channon and Burleigh Heads respectively. In relation to the September photograph, she said that her father told her to dress in a bikini, and in relation to the August photograph, she said that WG told AG to be naked and stand behind the tree.
In relation to the "October" photograph, she identified it as a photograph of CG which was taken in the presence of AG, CG and herself. She said she did not know how CG came to be in that position in the photograph.
The complainant identified the photograph for "November" as a photograph of herself taken down at the creek at The Channon. She said she was 13 at the time. She was told how to position herself by her father.
She identified the "December" photograph as being one of herself, her sisters and her mother taken at Burleigh Heads. She said her father took the photograph, and told them how to sit and how to look.
The complainant then gave evidence concerning a series of other photographs which were tendered as Exhibit 43. She said that these photographs were taken by a lady who came to the property and took them in about the middle of 2008.
She said that her father was not present when they were taken.
These photographs contained what might be generally described as sexualised images of the complainant, her mother and her two sisters.
The complainant also identified certain photographs which she said were taken by WG which became Exhibit 44. The first of these photographs (photograph 41) was a naked photograph of the complainant, her sisters and her mother. The complainant said it was taken when she was 13.
The complainant identified the second photograph (photograph 42) as one of herself, AG and CG in bikinis taken by her father in 2005. She identified the third one as one of CG standing up, and AG, KG and herself sitting down. She said it was taken by WG when she was 13. She said her father told her it was going to be a naked photograph.
The complainant said the balance of the photographs in Exhibit 44, with the exception of photographs 79, 91 and 127, were taken by her father in her bedroom while she was 16 or 17. She said they were all taken on the same night. They show sexualised photographs of the complainant naked.
The complainant said she took the photograph which became photograph 79. She said her father told her to take it.
She said she could not recall who took photograph 91 but that her father was in the room. She also took the photograph which was photograph 127, which her father also told her to take. All the photographs contained sexualised images of the complainant.
The complainant was also asked whether there were any occasions where members of her family had asked where she had been when she returned from the shed overnight. Her evidence was as follows:
"
A. Yes, there was some times that one of my sisters or [JG] would ask if I'd been in the garage or the shed and I would never answer to them, I'd ignore them. There was also other times that [AG] and [CG] would ask me how Fiona was. There was also times when Mum would ask me if I'd been in the shed and I'd tell her that I had been in the shed but I'd never tell her what would happen in there.
Q. Would she say anything about that, once you told her you'd been in the shed?
A. She'd just tell me that Dad's just trying to help me and that he's a good father."
The complainant was cross-examined extensively by reference to a chronology entitled "JG Athletics Chronology". It showed she was a highly successful athlete for the period between the years 2000 and 2009. She said that during the period she had some running injuries but that she ran through them.
The complainant recalled she told a doctor, Dr Norrie, that when she was a kid she injured herself by falling on equipment. She agreed that was in the area of her vagina. She could not remember if there was any bleeding but she remembered it being sore.
The complainant was taken to the walk around footage to which I have referred at [388] above. She was also referred to photographs which she identified as the area where she had informed the police of the barbed wire. She said that was the barbed wire that WG put over her when she was placed on the jumping ants' nest.
The complainant was referred to the photographs of the shed which were Exhibit 2. She identified a white plank of wood in the photograph and it was suggested to her that this was put over the door to contain chickens when there were chickens at The Channon. She stated she was very young when they had chickens there. She said there were lots of carpet snakes and agreed that they ate the chickens, and remembered being told that was why they did not have chickens.
It was put to her that following the time the chickens were eaten by a carpet snake there was no door placed or attached to the shed at all. She said that was impossible. She said she assumed the door was on hinges because it would shut by itself.
The complainant was asked whether she could see the shed from the house, and she said you could just see it when WG did some clearing. Subsequently, she said you could not see the house from the shed. However, she agreed, referring to a photograph taken in 2012, that if you were standing up in the shed you would be able to see the house.
The complainant said that when she went to the shed with the police there had been a lot of clearing, because the ice-cream bean tree that had been close to the shed had been taken down.
She was referred to a photograph of the shed, which showed no cover at all at the front. It was suggested to her that there was never a piece of steel or corrugated iron or anything like that covering the front. She said that was impossible, because she cut through it.
The questions were rephrased to avoid confusion and the complainant was referred to a large open area in the shed. It was suggested to her that there was no tin covering it. She said that area had chicken wire on it.
The complainant was referred to the question she had been asked about whether the photographs showed the shed as she remembered it in 1997 and 1998, and her answer that "there wasn't wood in it". She said she thought she had said there was not that much wood in it, and then stated that when she was young there wasn't any wood in it, but that the last few times she was in the shed there was some wood in it, but not as much as shown in the photograph.
The complainant identified photograph 23 in Exhibit 2 as showing the side wall of the shed. She denied she had ever seen her father pass wood through the entry shown in that photograph.
She agreed that the photograph showed firewood stacked close to the wall, and said that that was the wall where she secreted the black handle. She said the wood in the shed at the time was different to the wood depicted in the photograph.
The complainant agreed that as she was growing up she remembered seeing firewood in the shed from 2007 onwards. She said that the firewood which was in the shed was wood that had to be stored there, because it could not be burnt as it took a while for wood to dry out when you cut trees down. She said that the wood that was used for the fire was outside the house because it was already dry.
The complainant denied that she cleared out the shed with a Robyn Bennett in 2008.
The complainant was referred to that portion of the walk around video where she said she had buried a pair of underwear and some paper. She agreed that she was aware no underwear was located by police in that area. She said she buried underwear twice in the same area, roughly in the same location. She said it occurred first in 2000 and also just before she buried tools "G" and "K".
It was suggested to the complainant that she had plenty of opportunity to tell someone about the abuse at the hands of her father. She denied this, stating she had the opportunity but was in complete and utter fear of her father because he threatened to kill her if she told anybody. The complainant agreed that according to her evidence the first time there was a threat to kill was towards the end of August or early September 2006, but said she also thought for a considerable period of time that what was occurring when WG came into her room and sexually assaulted her was normal. She said that until Doha, she thought the massages were normal, although she now knew they were bad.
So far as the tools were concerned, she said that she thought it was WG's right to do what he did, and that she thought he was doing that to her because she had done something wrong. She said that until Doha she saw it as a form of punishment related to her races, and that she was not tough enough and was weak.
She agreed that whilst she was running she saw a chiropractor and a physiotherapist on occasions, and that her parents split up for 18 months. She was asked whether she thought during that period of time she could have told someone what was occurring, and her response was, "I don't think you quite understand what I am saying". She was asked the following questions and gave the following answers:
"Q. When you were eight years old; that's the first time, according to your evidence, that your father used tools?
A. That's correct, and at that point that's when I started to remember having conversations with Mum that she would try and help me to please Dad better, so how could I have a conversation with her about Dad when she was helping me.
Q. As I understand the evidence that you has given is that the conversations that you were having with your mother have absolutely nothing to do with the use of tools?
A. That's correct.
…
Q. Do you agree that there was nothing preventing you physically from telling your mother?
A. No, because Dad told me that if I told anybody what happened in the shed while I was down there then he'd kill me, so yes, I told Mum that I was in the shed, but I never told her what happened in the shed.
Q. The threat that you have just mentioned did not occur until the end of August or early September 2006, you're 14 years old?
A. Yes, but that's not to say that there wasn't another threat before that. I knew, I knew that was what Dad would do to me. Just because I can't remember every single word that came out of my Dad's mouth doesn't mean that it's not true."
The complainant disagreed with the proposition that what occurred to her in Doha was similar to what she said her father was doing to her. She agreed she made a complaint about the Doha incident but said she only did so after she was told she had to. She denied she told her father that she had been drugged in Doha. The complainant said that when she made a statement to the police officer Doug Connors concerning the Doha incident, KG and CG were in the room at some point. She was asked whether she told Doug Connors about her father and responded, "Absolutely not, and there's a very good reason for that". She was then asked the following question and gave the following answer:
"Q. You'd realise by this point in time, according to your evidence - you'd realised by this time that what he was doing to you was not normal, in relation to the massages and intercourse with his penis in your vagina and the like?
A. Yes, that's correct, but that didn't mean that I didn't fear him still, that I feared for my life and I feared for what he might do to me. He was there every day still controlling me. He made me go to the police station and make that statement. You can't just flick somebody off that you have grown up with your whole life controlling you. It took me a very long time to come forward, to pull away from them and that is why."
The complainant agreed that shortly after this period she entered the Mental Health Unit at Lismore. She agreed she was asked directly whether she had ever been assaulted by her father and that she lied and said no.
She was asked if she remembered telling a counsellor that the first incident with her father occurred when she was eight years old and said she could not remember saying that. It was put to her she told the counsellor she was asleep and woke up naked with her father on top of her but she said she could not remember telling them that.
The complainant said she told the counsellor at the Mental Health Unit that WG "was nice to me in my bedroom and then he wouldn't be nice to me after that." She agreed she told the counsellor that she tried to escape and got hit. She agreed she told the counsellor that she had heavy sticks thrown at her. She agreed she did not tell the police that, saying it was not really a big deal.
She was asked whether she remembered telling the counsellor that her father physically assaulted her every day, and she said she remembered telling the counsellor that her dad did things to her every day but not "physically assaulting" her, saying she would not have used those words.
She rejected the suggestion that WG never touched her with barbed wire, either in the shed or anywhere else.
It was put to her that the various assaults which she said occurred never took place and she denied that.
The complainant denied that she made entries in her 2006 diary or in the 2007 exercise book in 2010 or 2011. She said that none of the entries relating to the "shed", "tools" or "wee" were made in later years.
It was put to the complainant by counsel for WG that WG did not take the naked photographs of her. She denied this, and she also rejected the suggestion that she took the photographs for Max Pye.
The complainant agreed that there were a lot of things she did not enter into her diary.
The complainant was cross-examined on what was said to be discrepancies in the 2007 diary with activities she actually undertook on the days the entries were made.
The complainant agreed with senior counsel for KG that her mother was the person who looked after domestic chores at the house. She said, however, that when she was older she did a lot of her own washing, especially her sheets and underwear.
The complainant agreed that her mother looked after her on a regular basis, although she said she and her sisters helped KG out a lot as they got older.
The complainant agreed that she enjoyed going on runs with her sisters and her mother. She said she enjoyed them because she was away from WG, but also that she enjoyed running with her mother "because she wasn't drunk then".
The complainant was shown photographs of her with CG, and it was suggested that there was a time when she and CG were quite close. The complainant said that on the camp the subject of the photographs, they had quite a nice time. However, she denied that was typical of the relationship or that CG was a sister to whom she could talk about confidential matters and rely on to keep confidences. She said that the camp at which the photograph was taken was actually probably one of the first times she had a good time with CG, because WG was not there.
The complainant agreed that she and her sisters had trained over the years on more than one occasion with their mother. She agreed that she participated with KG in fun runs up to a distance of 10 kilometres, and that there was one charity run called the "Early Bird Advocacy Run", which was a run of 200 kilometres over two days which was done by KG and her daughters as a relay. The complainant accepted that KG was ranked 24th in the world for her age group at the World Triathlon Championship in 2003 in New Zealand.
In that context, it was suggested to the complainant that KG did not drink a lot. The complainant said that there were times when KG was very drunk. She said that KG drank every night, and that she did drink a lot but that she also trained a lot. The complainant accepted that sometimes it might have been only two glasses of wine a night and that there might have been some nights she did not drink. However, the complainant said she could remember KG being really drunk and putting her to bed, and tipping out the rest of the bottle and her glass of wine.
The complainant said she drank alcohol after she got out of hospital when she was 18 but that she hated alcohol because of her mother. She said she was definitely not a regular drinker.
LA said that in 2002 she moved to a property at Banora Point and stayed there for two years. She recalled an incident when AG was about 17 or 18 years of age and was staying with her at Banora Point. She recalled that WG decided AG needed a massage. She said WG wanted AG to take her bra off, and that AG did not but ran into LA's bedroom. She said that there was a lot of yelling going on in the bedroom, and that WG came out and said to her, "Don't be stupid, how can I give her a massage with her clothes on?"
In cross-examination, LA said she thought the three sisters, AG, CG and the complainant, were very close.
LA said she also remembered spending one Christmas Eve at PB's house which must have been because she was having repairs done at Tanglewood. She agreed that she remembered WG being out on the verandah with her husband talking most of the night.
It was put to LA that the incident she said she saw in the loft did not occur. It was also suggested to LA in cross-examination that WG did not say to AG, "Take your bra off". She rejected both suggestions.
Ms Rourke said that she saw the complainant frequently until the complainant was aged 12 or 13, but not very often past that point. She said that there was only one occasion when she saw WG punish the complainant for being naughty.
Ms Frey said she subsequently had a meeting with the complainant's parents, the culmination of which was that the complainant was withdrawn from the team. She also said that the complainant mentioned to her a couple of times thereafter that her father had made her life hell after that decision and that it had been a terrible thing for her. She said that occurred in about May 2007.
Ms Frey said she had further contact with the complainant at the Olympic Youth Festival in Sydney in 2009. She said that WG rang her and told her that the complainant had her appendix removed some weeks ago but that she had been medically cleared to race.
Ms Frey said the complainant ran below her best. After the race the complainant was "quite philosophical". Ms Frey said that later that evening one of the complainant's teammates came to say that the complainant was feeling sick and had told her teammates she had vomited. She said she went to see the complainant who was dry retching in the bathroom. Ms Frey said she made the decision to take the complainant to the Royal Prince Alfred Hospital that evening. She said the complainant stayed overnight for observation.
Ms Frey was then asked about contact she had with the complainant at the Falls Creek training camp in Victoria in late December 2009 and January 2010. She said the complainant came to that camp, but that on day 3 when there was the first serious training session the complainant struggled. She said initially she was "quite philosophical" but later became more withdrawn from the group, and sat in the local café drawing. She said she could not convince the complainant to come out with the other girls for coffee or later that evening for ice cream.
Ms Frey said that later that night another athlete told her that the complainant had taken an overdose of Panadol. She said she went straight to the apartment the girls were in, and the complainant was staggering around quite incoherent and talking to her boyfriend on the phone. She found a Panadol packet in which there were nine tablets missing.
She said that she made a decision to call WG. The complainant was very agitated and asked her not to. She said the complainant told her that she had taken the Panadol to block out the pain of an incident which had happened on a trip in Doha in the latter part of the year.
Ms Frey said that notwithstanding the complainant's request, the decision was made to ring WG. She said he came down immediately. He was cross and he did not comfort the complainant, but said, "What the hell have you done now? You've mucked up on an Australian Athletics camp before". Ms Frey said WG then said to her that taking the Panadol was a reaction to an incident that happened in Doha.
Ms Frey said she told WG it was her strongest recommendation to take the complainant to hospital. She said that WG did not want her to go to hospital, and that when WG said he would take the complainant into his care, Ms Frey saw that as the best option.
Ms Frey said the complainant went home that night with her father and that she agreed to meet WG the next morning. She said she met WG the next morning, who told her that the complainant had woken up fine and would be fine to train, that the complainant had been raped overseas by one of the staff members on the school trip, that the police were investigating and that the complainant was getting help from a counsellor.
Ms Frey subsequently had a meeting with the complainant and the complainant told her that she had been sexually assaulted overseas. Ms Frey said that Tim O'Shaunessey was present initially and that WG came in later. She said that as a result of the meeting it was decided that WG would continue to maintain responsibility for the complainant at the camp and that she would continue to join in the day-to-day activities. Ms Frey said she was very happy for that to happen. However, she said that the complainant seemed very uncomfortable in the presence of her father.
Ms Frey said that on another evening she saw that the complainant was in an upset state. She said that the complainant told her that WG had touched her inappropriately at different times when he massaged her, saying, "Sometimes when he massages me he touches me in the wrong places", indicating her pubic area. Ms Frey said after that disclosure she rang WG, saying that the complainant had fallen asleep in the lodge and she thought it was best to leave her undisturbed.
In cross-examination, Ms Frey said that during the Australian Institute of Sport camp the complainant asked her repeatedly not to ring her father about the training incident because she thought her father would think she was weak, but that at Falls Creek it was the first time that the complainant told her that her communication with her father had broken down.
Dr Crehan said she later examined the complainant on 9 February 2012, having been advised by that date that the complainant had reported to the police a history of sexual assault allegations against WG from the age of five, a number of them including penetration of the vagina by tools.
Dr Crehan said that the examination of the labia and the vagina was normal. She said she also examined the complainant internally and found that her cervix was normal. She stated that the female genital area heals quickly and that injury to this area is much less likely to leave scarring than some other areas of the body. She said she understood that some of the assaults occurred over a decade prior to the examination. She said that the lapse of time and the ability of this area to heal could account for the normal examination, and therefore she considered that the normal examination was still consistent with the history the complainant gave her.
Dr Crehan said that the hospital was not using a colposcope at the time.
In cross-examination, Dr Crehan said she did not find any bruising or welt marks on the complainant's back.
Dr Crehan accepted it was possible that the lacerations to the complainant's nose, the bruising below her right eye, scratches on her right cheek, left forehead and upper right shoulder were self-inflicted. However, she said it was unlikely that the scratches on the complainant's leg were caused by a fingernail.
In re-examination, Dr Crehan said that in her experience, it was very unlikely that the diverse range of injuries over many areas of the complainant's body which she observed were self-inflicted.
Sergeant Carroll was referred to one of the photographs he took (photograph 45) and he agreed he could clearly see the words "Dad" and "bad" scratched in the photograph.
Sergeant Carroll was also directed to an area towards the eastern side of the property. There was located in that area lengths of barbed wire wrapped around a tree and running along the ground.
AG said that after her massage, WG hopped on the table completely naked with a small white towel over his genital area. She said she massaged him in the area around his penis. She recalled his penis was erect.
She said there were other occasions when WG would give her a massage or she would give a massage to WG and the same type of thing would happen. AG was asked whether WG inserted his finger into her vagina on other occasions. She said that his finger would not always enter the vagina but that his hands would always be close to or touching the outside of the area.
AG recalled a time in the loft of a tree house at her grandmother's house at Tanglewood when she, the complainant and CG were massaging WG around his penis and stomach area. She recalled that WG had an erect penis.
AG recalled an occasion in 2005 when she travelled to Sydney for the Under 20 National Championships in Campbelltown. She said she recalled a massage with WG after dinner, which WG said would help her recovery process after the race. She said she was naked for this massage and that it got to a point where she had what she now knew to be an orgasm. She said he massaged her around the vagina area, saying that this one was more intense, as the whole time his hands were near her vaginal area and it did not feel right. She said she did not recall an orgasm like that one in any other massages. She subsequently confirmed that the date was February 2004
AG said she completed Year 12 at St Andrews Lutheran College. She remembered at the time she lived with a family, the West family, and WG. She recalled a particular incident whilst staying with that family when her father asked if she wanted a massage. She said she told WG she did not want one and that she was adamant. She said that the incident then got violent and WG got extremely aggressive, took her to the family bathroom and belted her four times across the face. AG said it broke her nose and that there was blood everywhere and WG told her not to tell anyone. She said she did mention it to CG and her mum.
AG recalled that after she left home she lived in the United States for a year and a half. When she came home she was 19 turning 20 and started running under WG again. She said she moved back to The Channon, although she was in between The Channon and a Burleigh Heads home they had at that time. She said in 2011 she fully left the family home.
AG said she recalled WG being violent towards KG and one incident when he got extremely angry. She said WG pulled KG down by her hair towards the main creek on the property. She said she followed, pleading with WG to stop. She said he did stop.
AG said she had a conversation with her sister at Cabarita Beach after she returned from America. She said she would have been 19 or 20. She said the complainant told her that WG had been raping her. She said she called her father immediately and was extremely angry with him.
AG telephoned WG on 23 February 2012 and that call was recorded by the NSW Police (Exhibit 59). During that call, AG told WG she had seen him drag her mother by the hair down the creek. WG replied, "I know, I know and that's the sort of demons and the problems that I've had to face". AG said she wanted to talk about the massage. WG replied, "Yeah I'm, I am really sorry, I cannot say sorry anymore." AG said, "you'd massage me, it was just you and me in the room and … I was having orgasms with you". WG replied, "Which is scary because that, it, you know I, I'm, I just cannot understand that and I, and I, it, it just doesn't make sense to me". WG said further, "I've gone and spoken to counsellors and psychologists as well, you know and I've gone to get help over this to just say how did this happen and what did I do wrong and why did I overstep the mark … no apology will ever be enough for you … I cannot understand it myself because there was never any intent".
AG told WG that he had his fingers inside her, and he replied, "I'm sorry, you know I never, like I don't even remember that, [AG], you know maybe I've blocked … things out … but I'm sorry". AG said to WG, "What about the time that I walked in and [CG] was screaming because you put her hand on your penis". WG replied, "You weren't in the house when that incident happened". AG said to WG, "I saw you massage [the complainant] and CG the same way, remember I always used to come in and yell at you and … I saw where your … hand was". WG replied, "Yeah, well I can apologise that's it, I've, I acted inappropriately and I didn't realise". AG said to WG, "You sexually aroused me". WG replied, "But I didn't know" and "I know … but how do I fix it". AG said to WG, "I think [the complainant] might be telling the truth about some of her accusations. I believe her." WG replied, "OK there might be elements of truth". WG said, "I never, never, never touched [the complainant] inappropriately. I think I slapped her once on the Gold Coast and I threw her in the bushes once". AG said, "I believe that you sexually harassed me" and WG replied, "Yeah, unintentionally". AG said, "I saw it with [the complainant]" and WG replied, "Yeah". AG said, "I saw it with [CG] and I have seen it with my own eyes". WG said, "I've gone through sexual assault counsellors as well to talk to them". AG said, "I'm telling … you to your face you touching me when I was so young has fucked me up". WG replied, "OK fair enough so I, I live with that. I have to live with that" and "I don't want to be punished for it anymore". WG said, "I agree that back then I think, yeah, there might have been something in my head that was sick I agree a hundred per cent I don't disagree with you I think I had an issue, I had a problem".
AG referred to the following entry in her diary with the heading "09/06" on top:
"Dear Diary, I am back home and I am at it again with my father. I am worthless, I feel… He hates me, hits me and overall treats me like a bag of shit! I do not hate him, I pity him. My leg had a massive log thrown at it, my nose was punched and my whole face and I was dragged across the ground by my hair. At this moment I feel the need to just die, wrap myself up and never be found. Everyday seems to be getting worse…
I feel I will never find anyone, I am getting lower and lower on myself and any beauty in my outer-self is not there in my eyes. I need help! I want to leave and start a new life and I know it seems crazy but I want to be free! My biggest fear is that I am going to end up hating running because at the moment it is bringing me grief. I am meant to be off to America…
I don't know anymore if it is what I want or if I am being told what I should do and where I should be… I don't want to be under the same roof as my father anymore nor do I want him as a coach. He has planned it all well though because it would be a big struggle for me to escape… I have never wanted anything more in my life.
I don't even want to keep talking about the shit with my mum and [CG] because I really believe they think I am the problem. I am not, I am the victim no matter what a father should not abuse his daughter - he did and for that I don't believe I can ever trust him completely. To tell you the truth I don't even know my father. The only relationship we have ever had is through running and that relationship is over until he shows me the respect - I don't want to write anymore - he probably reads it - Big deal! What is he going to do…"
AG was asked about the photographs in Exhibit 43. She stated they were all taken on the same day. She said she could definitely recall photographs 3, 4, 5, 11, 37 and 47 being taken by WG and she remembered Denise Alison taking the rest of them.
She agreed that WG was not there when she, her sisters and mother went to Gilchrist Agency to meet Ms Alison, and she did not recall him being there when Ms Alison took the photographs.
AG said the photographs in Exhibit 44 were taken by WG on a separate occasion. She recalled being around the age of 16 at the time.
She recalled being asked to pose for the photographs in Exhibit 44 and said WG asked her and her sisters to pose for these photographs at the creek on their property.
AG recalled the photographs for the 2005 calendar being taken. She said she recalled that the one for August in which she was naked was taken by WG, and the one for November which was a photograph of the complainant was also taken by WG.
In cross-examination it was put to AG that the only photographs taken by WG were those in Exhibit 42, the calendar photographs. She disagreed.
AG agreed in cross-examination that some of the emails which passed between her and her father while she was in America were of a loving nature. She said that all she ever wanted was her father's approval. She said that these emails were trying to get his approval.
AG was asked about swimming in the creek. She said the complainant did not seem to enjoy it much. AG said that she swam mostly with CG.
AG was asked whether she recalled before the year 2000 going to The Channon pub and playing videogames. She agreed she went there with her parents, her two sisters and JG and on occasion ate hot chips. She said she could not recall seeing the complainant eating hot chips.
AG agreed that WG taught her massage techniques. She agreed that there were various muscles that might require massaging after training, but said the area that she was massaging her father was not an area that she thought needed to be attended to after a running race. She rejected the suggestion that apart from one or two occasions when WG was teaching her how to massage, she never massaged him at all.
AG rejected the suggestion that her evidence of what occurred at her grandmother's loft never happened. She also rejected the suggestion that WG never dragged KG by the hair in the direction of the creek.
AG was taken to an entry in her diary in 2001, where she had written that her parents helped her and that without them she would not be where she was today. She said that what she wrote she absolutely believed to be true, saying the relationship she had with her parents was a mixture between love and hate. She accepted that her parents helped her in her training and that she enjoyed running, but also said that she never really had a choice.
AG said there were jumping ants at The Channon but that she never got bitten by them. She said she did not recall the complainant using the washing machine when she was around eight to 10 years of age, but she did recall the complainant taking coffee to her father when she was around 10.
AG was taken to an email she wrote to WG on 11 February 2007 where she said, "Things are not so good at home and it makes me sick when the girls have something go wrong and everything is going wrong", and which continued, "Please just tell me that everything is going to be okay and that you are hanging in there, dad", and "You have done nothing wrong, these things happen, okay". She said she could not recall why she had written that.
AG agreed that the last time WG gave her a massage was at Tweed Heads in 2006.
So far as the telephone call was concerned, it was put to AG that when WG was speaking about "demons" he was talking about the breakdown of the relationship with KG and getting back together and trying to improve. She said she interpreted "demons" as referring to what she was asking him about the incidents that had occurred.
AG accepted that WG was apologising because she had felt the way she had during a massage. However, she disagreed that she accepted it was a mistake.
AG agreed that in the phone call she never invited her father to apologise for the massages that she had given him. She agreed that at no time before the phone call had she ever indicated to him during a massage that she had become sexually aroused.
It was put to AG in relation to the incident she described as occurring in February 2004 (see [589] above) that her father did not accompany her to that athletics event. She disagreed. She also disagreed with the propositions that WG never locked her in the garage and that there was no lock on the garage door.
It was put to her that when she argued with CG, WG would threaten that if they did not stop arguing he would put them in the garage but that he never did. She disagreed.
She agreed that the three sisters would stack wood into the shed.
AG disagreed that there always was someone else in the room whenever WG massaged her.
It was suggested to AG that after the meeting with the complainant at Cabarita Beach (to which I have referred at [593] above) she telephoned KG and told her what the complainant had said. AG said she did not recall this.
AG was cross-examined on a letter written to her from KG which she accepted she received in 2011 (Exhibit 58). She agreed that before she received that letter she had spoken to KG about what she said was sexual interference by WG. She disagreed that she spoke to KG about that topic in a telephone call after she had seen the complainant at Cabarita Beach. She said there were conversations many times before that. She agreed that at one point she told her mother that unless she left her father, she would have nothing further to do with her.
She was referred to her earlier evidence when she said the conversation at Cabarita Beach took place when she was 19 or 20. She agreed that if that was correct the conversation would have taken place in 2007 or 2008. It was put to her that the conversation took place in 2010 when she was 22 and she disagreed.
AG was also referred to a series of affectionate communications between her and her mother (Exhibit 66). She said what she wrote was what she wanted her family to be.
In relation to his conclusions, Professor Fitzpatrick agreed that the metal objects may have been buried anywhere in the same type of soil. He said, however, that they would have to be oriented in the same position and then placed. It was also put to him that if there was very little sunlight shining on the two rocks near the tree referred to at [629]-[630] above, there was at least the possibility that the rock with little or no moss on it was placed there fairly recently, within the last couple of years of when the photograph was taken. He said he could not say. He also agreed he had no idea of the condition the objects were in when they were buried.
In re-examination, Professor Fitzpatrick was referred to a question he had been asked as to whether the tools could have been buried for two years somewhere else and then moved. He said he understood the question to be asking whether they could have been buried somewhere else for two years and then moved and buried for a further year. In that context, he agreed that for the corrosive product which underpinned his conclusions to have formed, the tools must have been buried for at least three years.
She said that photographs were taken of the examination by Dr Nittis, and as her video colposcope was not working, she just used an ordinary Nikon camera.
Dr Norrie gave evidence of her findings at the examination in the following terms:
"Q. Now can you tell us, please, what you found during that examination?
A. Well, obviously it was such a gap between the last time of the alleged assault and the examination, there was no signs of acute trauma.
Q. So what do you mean by 'acute trauma'?
A. Well, there was no bruising or bleeding or anything that indicates that something is very recent. She had no injury to her external genitalia and that comprises of the outer lips, the labia majora, the inner lips, the labia minora, the clitoral hood, the posterior fourchette, which is where when you pull the lips, outer lips apart, where they meet down the bottom, is called the posterior fourchette and the gap between the posterior fourchette and the hymen is called the fossa navicularis and it is where secretions collect and so that was all normal as well.
So the abnormality - the [Tanner] stage is the amount of pubertal development, so Tanner stage 4 to 5 means she is pretty well adult developed and she - but the abnormalities that she had were in the hymen.
Q. And can you tell us, please, what abnormalities you found?
A. Well, she had a normal hymen from 12 o'clock which is, if you imagine somebody's lying on their back, then a clock face, so 12 o'clock is up the top and 6 o'clock down the bottom. So down on the left-hand side, going from 12 o'clock around to 5 o'clock it was normal. Normal oestrogenised hymen.
Q. Can I just stop you there. What do you mean by normal oestrogenised hymen?
A. Well, when you get to puberty - the hymen has receptors laid down - well, the whole of the genital tract has oestrogen receptors laid down in utero, so when babies are born they have quite an oestrogenised hymen, because of the mother's oestrogen and then it changes and it is not until they get their own oestrogen at puberty that the hymen becomes oestrogenised again. The whole purpose of that is so that it is really thick and frilly and expansile and it will permit a penis to go in and out, with good foreplay, without causing any damage, so that's nature's way of coping.
Q. Now you said it was well oestrogenised between 12 o'clock and -
A. Up the top and down to 5 looked absolutely normal. However, the rest of it was - looked pretty abnormal. There were, what we call, transections, which are tears, and absent hymen at 5 o'clock and 7 o'clock and 9 o'clock. Now 9 o'clock, because the hymen develops - it is a bit complicated to explain, but it develops in two sections, the posterior bit and the anterior bit.
HER HONOUR
Q. The bottom and the top?
A. The bottom and the top, yes. So generally we regard now anything that is sort of a transection at 9 o'clock as probably being normal. So essentially she had transections at 5 o'clock and 7 o'clock. Between 5 o'clock and 7 o'clock, she had hardly any hymen left. It was just really thin and tatty looking and it wasn't oestrogenised at all.
So then she had, from 7 o'clock, where the transection was up to 10 o'clock, she just had this, again, this tatty-looking thin hymen or tissue, which wasn't oestrogenised - so neither of those on that side were oestrogenised - whereas the bit coming down from 12 to a 5 was oestrogenised, but all this stuff down the bottom wasn't.
CROWN PROSECUTOR
Q. Does that suggest that the abnormalities were caused prior to her hymen becoming oestrogenised?
A. That's what I think, yes, yes.
HER HONOUR
Q. And that being puberty, to use general parlance, puberty is what one refers to, is that correct, when it becomes oestrogenised?
A. Yes, yes. So I think that the oestrogen receptors were damaged before puberty and that's why the hymen looks like it does.
She had what's called a septum, stretching from 9 o'clock over this side, on the right-hand side across to 12 o'clock up the top, but it was divided and that can be, can be regarded as normal. The -
CROWN PROSECUTOR
Q. Could it also have been the result of something else?
A. Well, I considered that it could have been from the use of the scissors.
HER HONOUR
Q. What is a septum?
A. A septum is a bit of tissue that goes across.
Q. Across the hymen?
A. No. It's actually more external to the hymen and it just travels across. So you can still see the opening to the vagina."
Dr Norrie gave evidence that she prepared some PowerPoint slides showing sample photographs of prepubertal hymen and prepubertal hymen with trauma and also three photographs taken of the complainant. The PowerPoint document was tendered as Exhibit 68. She indicated that the first slide showed two photographs, one of prepubertal hymen with acute (recent) trauma, and the second taken about three to five days afterwards. She explained what those photographs showed in the following terms:
"A. … So the first photo shows an injured hymen. The second photo shows how the hymen … you can see that the laceration that was in the first photo hasn't healed, so it still looks like a divot in the hymen. …"
She then referred to photographs on the next slide in the following terms:
"A. … So even though you start off, your oestrogen receptors have picked up oestrogen from your mother and you start off with a hymen that looks like one at puberty; after, by the age of nine, they have all - the majority of girls have what's called a crescentic hymen, which is what I have illustrated here and the anterior or the top part of the hymen has pretty well disappeared. Then above that you can see that I have marked the urethra, which is where the urine comes out. So they are very delicate-looking hymens that prepubertal children have.
Q. And that has started to -
A. The second photo shows it oestrogenising. So the fimbriae, the receptors, you have oestrogen receptors and the brain is - the facts that you are going to start to produce - your ovaries are going to start to produce oestrogen - and switches on these receptors and these little fimbriae grow up through the hymen and thicken it and make it frilly and curved and elastic and able to expand it and contract."
She was then asked about the photographs which appeared on page 4 of Exhibit 68 and gave the following evidence:
"A. ... So you can see on the one on the left, the bottom bit of the hymen has - is well oestrogenised and the top bit of the hymen is starting to oestrogenise. When you look at the right-hand side, it's growing to become - to - the hymen ends up in two sections (indicating) and both - but it should be oestrogenised all the way around, not just one section or that sort of thing."
She was then asked about the three photographs taken of the complainant, and gave the following evidence:
"Q. And you have told us about the abnormalities that you found?
A. Yes. So you can see here that she's got an actual transection or a tear at 5 o'clock. She is lying on her back. She's got this tatty - and the hymen is well oestrogenised from 12 o'clock down to 5 o'clock; she's got a transection at 5 o'clock - she's got a tatty bit of hymen left at between 5 and 7 o'clock, which you can see it's been arranged on the Foley's catheter. That is the Foley's catheter coming out, the balloon, and the bit that you pull on. She's got no, or hardly, any hymenal tissue between 5 and 7 o'clock and then she's got a complete absence between 7 and 8 o'clock and then she's got this scant tatty hymen looking between 8 and 9 o'clock and there's the septum. Can you see the septum?"
Dr Norrie was then asked about the likelihood of finding injury to the genital region in people who have presented themselves alleging sexual assault by way of penetration of the vagina. She gave the following evidence:
"A. Well, usually you don't find injury if there is - finding injury depends on, a little bit on what's happened, but it also depends on the gap between what happened and the examination because things in the genital area, as anyone who has had a child knows, everything heals up really quickly, so usually you don't find, you don't find any injuries and I suppose you could say that the more times things happen the more likely it is. There's a guy called McCann, who has demonstrated very well that people walk around with their legs together, so when the hymen is split or transected, because you walk around with your legs together it tends to heal up. Hymens always heal without scars - I have never seen a hymen scar - and so the more times you have something happen to you the more likely you remember that it won't heal up.
Q. And what is it about that area, the genital area, that means that it heals rapidly?
A. It's got a really rich blood supply and so all the healing, hormones and blood vessels and the blood - you know, the macrophages and fibroblasts, that clean up wounds, come in really quickly and heal it all up."
Dr Norrie was then asked her opinion of the likelihood of dehydration of a child who was locked in a shed for three nights. She gave this answer:
"A. Yes, and in general, as long as the child doesn't have any vomiting or diarrhoea, they can tolerate. I mean, they don't feel fantastic and they are thirsty, but they can tolerate three days. I think from recollection there was water provided at some stage; but yeah, you can, you obviously pass a very concentrated urine and, yeah, you don't - you've got a headache and you don't feel very well but you can survive it."
She also indicated that she was asked to provide an opinion on the likelihood of infection in the genital area, given the allegations by the complainant of penetration by the tools. She gave the following evidence:
"A. Yes. The - and again, the area is so richly supplied with blood vessels that - and blood that she actually says that she bled a lot, which would have meant (a) that a lot of this whatever it was was washed out; and (b) that the factors that come in to heal things would have stopped infection as well. And I think she said that she went to the creek or something afterwards to wash herself down?
Q. And when you talk about transections or tears, are you using those two words interchangeably?
A. Yes, yes. 'Transection' is where the force exceeds the visco-elastic or stretching properties of the tissues, so it tears."
In cross-examination of behalf of WG, it was put to Dr Norrie that, having regard to the use of tools and particularly the U-shaped tool labelled "G", it would be expected to find some scarring, not necessarily of the hymen, but inside the vagina area. She disagreed and responded, "it always heals up really quickly and it's mucosa, it is not skin". She initially agreed it would depend on the shape of the object, its sharpness, the degree of force used and the number of occasions it occurred. However, she then stated that she and the cross-examiner seemed to be talking at odds, because what she was maintaining was that you only got scarring if you injure the skin. She said that if you injure the mucosa, which is what you find when you open up the labia majora (the outer lips), it heals by a process called granulation. She said that this is like the inside of your cheek which if you bite heals really quickly and "gets that white surface to it", and does not scar. She said that there is no skin inside the vagina.
Dr Norrie was referred to her report where she had stated that the external genital examination was abnormal, showing full thickness transections, but that they were not acute, which she agreed meant they were not fresh. It was suggested to her that it was possible that the blunt force trauma she noted in the complainant's vagina could have been occasioned by digital penetration. She said it would have to be repeated and very, very violent to cause that amount of damage to the prepubertal hymen.
She then gave this evidence:
"Q. Now just so I understand, doctor, in relation to the septum, from what you saw, is it best to describe it as some sort of an irregularity or you just don't know?
A. No, we see them, they're quite - they're not common but we do see them, yeah.
Q. When you say you see them, in relation to [the complainant] it's not necessarily consistent with any sexual penetration?
A. No, no.
Q. You'd agree with that?
A. Yeah.
Q. Would you agree that there is no [research] at all to determine whether a transection has occurred pre or post puberty?
A. No, I base that on my experience."
In relation to her opinion on the likelihood of dehydration, Dr Norrie agreed that the effect of going without any or little water for three days would depend on the weather, and that it got fairly hot in summer in Lismore. It was put to her that her opinion may vary depending upon the conditions, and she said she had asked about that, and that most of the doctors at the Emergency Department she had asked had the general opinion that as long as the complainant did not have any vomiting or diarrhoea she would be feeling dreadful, would be thirsty and would not urinate, but could survive.
She was then asked these questions concerning thinning of the hymen:
"Q. Did you tell us, doctor, when you were giving us the clock, the evidence in relation to the clock, that I think between 5 and 7 there was thinning of the hymen?
A. Yes, it wasn't as thick and as oestrogenised.
Q. And what I was asking you is are you aware that there is no research that links thinning of the hymen to previous trauma?
A. Well, I think that I probably used the wrong terminology. By 'thinning' I meant that it wasn't oestrogenised, so it wasn't nice and thick and plump. It was thin and more like a prepubertal hymen.
Q. In relation to the laceration that you noted at 9 o'clock -
A. Yes.
Q. - that's not evidence of previous trauma; would you accept that?
A. Yes.
Q. So is what we are left with at the end of the day, what, a couple of lacerations?
A. Grossly abnormal.
…
A. We're left with full thickness transections at 5 o'clock and 7 o'clock; we're left with thin or reduced hymenal tissue between 5 and 7 o'clock; we're left with thin or reduced hymen, again non-oestrogenised, between 7 and 10 o'clock and - yeah - so there's -
Q. That's it?
A. Yeah, well, it's very abnormal when you look at it, it's not -
…
Q. We can rule out the laceration at 9 o'clock?
A. Yes. Well, the - only the fact that the hymen develops posterior and anterior sections and probably the 9 o'clock one you could count as being other than normal, but I don't because - I don't count it as being normal because of the lack of oestrogenised tissue.
Q. And it is possible, isn't it, that those lacerations that we're left with and the thinning and the like could all have been occasioned post-puberty; it's a possibility, isn't it?
A. How, because the oestrogen receptors have to be destroyed for the hymen not to oestrogenise."
It was put to Dr Norrie that in her original report she used the words "one could argue" in reaching this opinion, which were removed from the report. She said she asked the DPP to inform WG's representatives that she withdrew those words. She was asked whether there was at least an argument that the lacerations were "pre rather than post-pubescent" [sic], and she replied, "Well, it is not something that I think, so it's not - I'm not now trying to create any controversy about".
In cross-examination by counsel for WG, Dr Hoey-Thompson said she believed that the complainant would have been disassociating and highly traumatised before the incident at Doha, but that the incident in Doha led to the realisation that what was going on at home was wrong.
Dr Hoey-Thompson agreed that as at 30 September 2011 she was working as a psychiatrist at Lismore Base Hospital and that at that time it was her opinion that the complainant's experience in Doha caused a significant deterioration in her mental health.
Dr Hoey-Thompson agreed that her diagnosis was to a large extent dependent upon what she was told by a patient, and also what she observed of a patient. It was put to Dr Hoey-Thompson that she would not rule out that her observations may well not be genuine. She responded that she did at times have patients with what she described as factitious disorder or malingering, and it may be that they wanted the disability pension or to escape gaol or something similar. However, she said that to do that with the degree of genuineness shown by the complainant over six years and thousands of hours in her opinion would be quite implausible.
WG stated he gave the complainant no more than a handful of massages because the only reason he taught the girls to massage was because when he was home, he was usually in the garden or renovating the house or building the bunkhouse, and massages were time consuming and so he preferred not to give them. He said the massages always took place in the lounge room directly under the ceiling fan.
He denied that his daughters massaged him, apart from two occasions when he used himself to teach AG massage technique. He denied that his three daughters gave him a massage in the loft at Tanglewood in 2001.
He said that when he massaged the complainant there were always other people around.
He denied ever inserting his finger into AG's vagina.
WG was referred to the phone call on 23 February 2012 with AG to which I have referred at [594]-[595] above. He said that in January 2011 and on 7 December 2011 he had received threatening phone calls from AG. He explained his use of the word "demons" in the phone call in the following terms:
"When communicating with [AG] I talk to her in a particular way. We'd had a, I thought, a good relationship but also at times very strained, and I used that word in particular then because it was a word I did use with her in our meetings to explain my behaviour, I guess, in not accepting or not understanding [KG]'s postnatal depression in - after [JG] was born and also the demons and, in fact, that I had never really grieved or accepted any sort of responsibility for, you know, the stress in the family with the death of [name omitted] and also with the death of our daughter, [name omitted], and so it was my demons, in terms of the head space, that I was occupying at the time and not understanding what it was like to be a truly understanding and compassionate husband, because I don't think I was at that time."
WG said AG had an idea in her head that when she was nine or 10 she had witnessed him dragging KG towards the creek by her hair, and said he discussed it with her ad nauseam. He said that at the time of the 2012 conversation he was pleased to hear from AG and did not want to lose an opportunity to get back in touch, so he gave her the answers he thought she wanted to hear.
WG said that when he said he was sorry in the phone call, he was sorry for the fact that AG had not told him exactly what she was feeling. He said that if it was true that she had particular emotional feelings or physiological responses from being massaged, particularly in the hip area, he did not understand why she had not told him.
WG said he was pretty certain he had not massaged AG alone in her room.
WG said that when he said to AG that he "overstepped the mark", he meant that he blurred the boundaries between being a parent and a coach, and that what should have been left on the track as a coach was being brought home. He said he thought he was less of a father and more of a coach.
WG said the last time he gave AG a massage was around her birthday in 2005.
WG said that as the complainant was growing up, from the age of five upwards he hardly ever saw her because she was always in bed when he came home. He said that after 2001 when he reunited with KG, he and the complainant seemed to form a strong friendship fairly quickly, he thought because she loved to garden.
WG said his coaching relationship with the complainant started in 2003 when the girls commenced at AB Paterson College.
WG said the complainant seemed to like racing, but that around 2006 he noticed the first apprehension in races, which he said was perfectly normal for a young athlete who was good and who won all the time because the pressure from competitors was enormous.
WG was asked whether he had tools around the property at The Channon. He said none of his own, but that when he was cleaning up the sites he found an enormous number of old tools. He said he would have found maybe 50 or 60 tools, which included some tools he had never seen before.
WG was shown the tool which had been marked "G". He said he had most definitely seen it at The Channon "over at the end of the kiwi fruit where there is a large rock". He said it used to sit on the ground with a few other old tools that JG used to play with when he was growing up.
He said that he had not seen the tool marked "K" "in person" but that he had seen many of those particular tools on The Channon property in one of the rubbish tips.
WG said that apart from the photographs in the 2005 calendar "but one", he did not take any photographs of his children without their clothes on, or any photographs of the complainant in her bedroom when she was naked. He said he never had her take photographs of herself, commonly known as selfies. WG denied ever punching AG in the nose.
WG gave further evidence concerning the shed. He said the shed was cleaned out usually at the end of each year, and he would often instruct the girls or JG when he got older that it was their job to keep the wood shed clean. He said he did not want too much wood being left in the wood shed. He said he definitely cleaned out the shed himself. He remembered doing it in the 2008 September school holidays.
He said cleaning the shed involved moving all the wood out. He said when he cleaned it out in 2008 he did not notice any underwear in the shed. He was shown the tool marked "I" and said that he did not notice that tool in the shed when he was cleaning it out in 2008 or at any other stage after 2007. He said he had not seen tool "I" before he gave evidence.
WG was shown the piece of wood with the engraving "trapped", "dad", "Mum is coming" and "dad". He said he was aware that that piece of wood was removed from the shed when he framed the floor to put in concrete in 2002. He said in framing the floor he used offcuts of red gum.
WG was shown Exhibit 42 and said he took all the photographs in that calendar. He again denied taking other photographs of his daughters without clothes on.
WG identified a sketch he had made of The Channon. He said that this showed that the difference between the house and the shed was 18 metres in "a direct line as the bird flies". He said that between 2000 and 2008 the walking distance would have been 25 metres. He said that the distance from the house to the closest part of the creek was 50 metres.
WG was asked whether he had noticed barbed wire wrapped around the tree near the creek at any time whilst he was living at The Channon. He said he had, and that there was a lot on other parts of the property which was subject to flooding. He said, "Lots of things get washed down in floods from steel, posts, cars … lots of barbed wire because of the farms upstream which would fence all the way down the creeks".
WG referred to the difference in the signs of decomposition around the rocks on which Professor Fitzpatrick was cross-examined, apparently in support of the proposition that it was impossible that one of the rocks had been there for six years or even one year.
WG said at the time JG was born he was in Central Australia, and his daughters were staying with Helen Opie at Melville House. He said that on his return from Central Australia he drove with the girls back to The Channon and they packed their bags, and went to the hospital in Brisbane to see KG. He said after they saw KG he took the girls to Ronald McDonald House and ultimately went back to The Channon by himself. He said that after three or four days he drove back and saw the girls, who were at a small school attached to the Ronald McDonald House at the Royal Children's Hospital. He said he did not bring the children back with him to The Channon during the time that KG was in hospital with JG.
WG was asked about Count 4 and said that he did not remember at any time seeing the complainant come home from school when he was working in the garden and that it was unlikely to have occurred. He denied the allegation the subject of that count.
In relation to Count 6, WG said he was overseas from 26 October 1998 to 12 December 1998. However, the complainant's evidence was that Count 6 occurred before Christmas 1998. His absence overseas up to 12 December 1998 is not inconsistent with him committing this offence.
WG said that from 21 to 29 January 2010 he was in Papua New Guinea. Although the complainant stated that the incident the subject of Count 82 took place in early January 2010, this again is not inconsistent with the time that WG was overseas.
In relation to Count 10, WG said that he attended a Sydney State Cross Country event in which the complainant came 32nd. He denied he kicked her while he was at that event. He said he did not think anything of her coming 32nd. He said he remembered driving home after the event with AG, CG and the complainant.
In relation to Counts 11 and 12, WG said he recalled going to PB's house in 2000. He said he was staying at Melville House around that time and did not travel to PB's place with his family. He denied he saw the complainant overnight.
He agreed that the following day he took his daughters to O'Reilly's. He denied that whilst at O'Reilly's he slapped the complainant across the face. He said that whilst they were at O'Reilly's there was a thunderstorm and he drove back to PB's house. He said that he and girls went back to PB's house because the girls wanted to see KG. He said it would have been about 5 pm. After that he said he drove directly back to The Channon and he had his daughters with him. He said he did not stop at The Channon but went to Melville House with his three daughters and JG.
WG stated that after he separated from KG in July 2000, he based himself at Melville House. He said that in the first couple of days of April 2001 KG and the children moved to Goonellabah and he returned to The Channon. He reunited with KG in December 2001 and she and the children moved back to The Channon.
WG was asked about the allegation the subject of Count 14. He said that on 31 December 2001 he was in Brisbane staying with a friend called Michelle Fountain. He said he only found out later that the complainant had spent New Year's Eve at Lennox Head. He said he was told they went to celebrate New Year's Eve at Lennox Head and had fish and chips.
He said that on New Year's Day he was up at O'Reilly's and did not see any of the children.
In relation to Count 19, WG said he was overseas from 21 January 2001 to 29 January 2001. The complainant, however, did not state when in January the incident occurred. WG's absence in the latter part of that month is not inconsistent with him committing the offence.
In relation to Counts 22 and 23, WG said he did not give the complainant a massage until she was 13 in 2005.
In relation to Count 24, WG said he had no recollection of the complainant bringing him coffee into his bedroom. He said that every Father's Day the girls would cook him breakfast and that it was eaten in the kitchen at the breakfast bar.
In relation to Counts 26 to 29, WG said he recalled the children starting at a new school, AB Paterson, at the commencement of the term in 2003. He said the family had rented a townhouse just across the road from the school. He denied that any of them returned to The Channon the weekend before the children started at the school. He also said that they did not return to The Channon the weekend after, but spent most of the time at Southport Beach and that AG and CG competed in an athletics event.
WG denied ever having a shower with the complainant. He was asked whether he asked the complainant to tell him when she got her period, and he said no, stating it was "just a general notification". He said that all female athletes he coached were advised to keep a close check on their menstrual cycle.
He denied ever telling the complainant to shave her pubic hair.
In relation to Count 32, WG denied that any "hill sessions" were done in January 2004. He said normally they did not do hill sessions in summer because they were really inappropriate at that time of year which was leading into the free competition phase in January for junior athletes.
So far as Counts 33 and 34 were concerned, WG denied speaking to the complainant on the phone from Adelaide, but said he spoke to KG after he had heard through another parent of an athlete that he coached that the complainant had collapsed 60 metres from the finish line. He said he told KG to go to the complainant and tell a first aid officer that he was on the phone, and that from his knowledge and experience the best thing to do was to get the complainant up immediately and walk around. He said that could avoid cardiac arrest or an aneurism resulting from a collapse from lactic acid.
In relation to Counts 35 to 40, WG denied ever being in bed with KG and the complainant at the same time.
In relation to Counts 41 to 43, WG was referred to the complainant's evidence that she pulled out of a 3,000 metre race in Brisbane. He said he did not believe that she pulled out of that race, but believed she won the race. He said he would have been there, but did not know exactly how she performed in the race.
WG denied he ever threatened to hold the complainant's head under water or to lock her in the garage. He said he only made the threat about the garage to AG and CG.
He denied he ever threatened to lock the complainant in the shed, saying the shed did not lock.
In relation to the incident the subject of Counts 46 and 47, WG said that after travelling from Marlo (see [175] above), he, AG and the complainant met KG and CG at Sydney Domestic Airport and rented a cabin at Lane Cove National Park, where the family stayed for the duration of the Australian Championships. He said that the day following their arrival at the cabin the family went at lunchtime to Sydney Olympic Park at Homebush where the girls participated in various events.
In relation to Counts 49 to 52, WG was referred to the complainant's evidence about climbing in and out of her bedroom window and said that during that period there were flyscreens on the windows because of the mosquitoes.
In relation to Counts 58 and 59, WG said there was no lantana on the property in 2006, it all having been cleared by 2002. He denied ever threatening to kill the complainant.
So far as Count 63 was concerned, WG said he recalled attending the Telstra All Schools Championships and that the complainant ran in the event. He said AG was not there.
WG agreed that the complainant pulled out of the 3,000 metre race with two and a half laps to go, and said, "Unfortunately, I yelled out to her and called her 'weak' because … I had asked her, 'Please, do not run in this race', but she overruled me and decided to race". He said after the race he went to the recovery room and waited outside for the complainant to come out, and when she came out he apologised and gave her a hug. He said it was the only time he ever called out in that fashion.
So far as Count 64 was concerned, WG said he recalled the complainant going to a steeplechase race in Hobart at the Australian Under 20 Championships. He said he was aware that the complainant had an anxiety attack on the way home. He said by that time the complainant had moved into AG's room.
In relation to Count 65, WG stated he recalled the complainant going to the AIS camp in Canberra in 2007. He said he was made aware by Nicky Frey of the training session referred to at [252] above. He said he saw the complainant when she came back from Canberra and sat down with her and asked what had happened in the session. He said he was really worried about the injuries to the complainant's head, but that the complainant convinced him it was an accident. He said he asked KG to take the complainant to the local GP and organise some counselling sessions. He asked the complainant whether she wished to see a sports psychologist and she declined. WG denied at any time holding a knife or a machete to the complainant.
So far as Counts 71 and 72 are concerned, WG stated he recalled the complainant going to hospital with suspected appendicitis. He said he thereafter spoke to the specialist who told him there was absolutely nothing wrong with the appendix or any of the visceral tissue around the abdominal area that would have caused any pain.
In relation to Counts 76 and 77, WG said he attended the Down Under Meet in July 2009. He was the medical officer for the full program and he had to remain at the meet until it concluded. He stated he had to be there for the closing ceremony which took place on the Sunday afternoon.
He said that after the closing ceremony, he and KG returned to where they were staying at Burleigh Heads, whilst the complainant went with Max Pye back to his family's home.
WG stated that he remembered it was dark when he started packing up the first aid medical tent, so it would have been at least 5 pm. He said he saw the complainant leave the meet with Max.
In relation to Count 78, WG remembered going to Nowra in August 2009. He said he was the Queensland team manager for the Queensland athletics team and also had 17 athletes competing from his athletics squad. He denied that he had access to a minibus.
In relation to Count 79, WG said he remembered staying at the complainant's grandmother's house at Cabarita on only one occasion with the complainant on her own. He said nothing happened on that one and only occasion.
WG recalled that in 2007 he attended a meeting with Nicky Frey and other Athletics Australia officials. He said it followed what had happened at the training camp in Canberra and that the officials wanted to discuss whether the complainant was ready to go to the World Youth Championships. The result of the meeting was that it was agreed that the complainant would not travel to the championships because she was still going to be eligible in another two years' time.
WG said he recalled the complainant travelling to Doha. He said there was a lot of discussion as to whether he would accompany her. He said the complainant really wanted him to go but the cost was going to be too much. He said he became aware of the incident which occurred at Doha and that the complainant got in touch with Doug Connors.
WG said he did not speak to the complainant about her upcoming meeting with Mr Connors, nor accompany her to the meeting.
In relation to Count 82, WG said he saw the complainant every day at training and also met for hot chocolate once a day where they talked about future plans for her coaching arrangements. WG said that the night the alleged incident occurred, the complainant stayed with Jamie Creighton and Jade Brandt in their room.
In relation to Counts 83 and 84, WG said that at 9 am on 17 June 2011 he was home with JG.
So far as Counts 85 and 86 are concerned, WG said that on the morning of 13 October 2011 he was taking his sports car to his parents' house to be put in the garage at their property at Goonellabah. He said it would have been close to 10 o'clock when he arrived, and that KG turned up a short time later. He said they stayed for well over an hour, leaving his parent's home probably after 11 o'clock. He said he and KG arrived in Lismore about 11:30 and went to their favourite place for coffee.
WG recalled the complainant staying at The Channon for about six weeks in the middle of 2010. He said he had a conversation with Max Pye and the complainant about Max staying overnight. He said he recalled asking the complainant, "Did you stay in the bunkhouse with Max last night?" and that she answered yes. He said she stormed out of the kitchen and about an hour later came back, and said that she now knew how AG felt, and said, "Dad, you will never coach me again".
WG said that shortly after that conversation the complainant and Max left The Channon, and returned a week later to collect her belongings. At that stage he said she looked him straight in the eye and said, "Dad, you never believed me about Doha. I'll make sure no one ever believes you again".
In cross-examination by senior counsel for KG, WG denied that he ever asked KG to tell the complainant to make noises for him during sexual intercourse. He also denied that oral sex was part of his and KG's lovemaking.
In answer to a question by senior counsel for KG, he denied that he and KG were in the vicinity of the BP petrol station at Wollongbar on 13 October 2011, stating he would not have driven down that road for three or four years. In cross-examination by the Crown, he agreed that road was the main road.
In cross-examination by the Crown, WG was referred to his evidence in chief that AG had said ad nauseam that he dragged KG down to the creek by her hair. He accepted at no stage did he say in the 23 February 2012 conversation anything like, "Well this is something that you keep raising with me, [AG]".
WG stated that he first learnt that the complainant was alleging that he had touched her inappropriately during a massage on 23 July 2010, and of the more serious allegations in November 2010. He was referred to the phone call that he had with AG when she phoned from Cabarita Beach (see [593] above) and it was put to him that she (AG) was accusing him of having sexually assaulting the complainant. He gave the following answer:
"A. No, she didn't directly say that in the phone conversation at Cabarita Beach. What she said in that phone call, which of course isn't recorded, was that [the complainant] had told [AG] and her Oma that at night she could hear footsteps coming down the hallway. That was the full extent of that phone conversation in 2010, the end of 2010. There was no mention of sexual assault at that particular point of time."
He denied that AG told him during the phone call from Cabarita Beach that the complainant had disclosed to AG that he had raped her.
It was put to WG that the complainant never said, "Dad, you never believed me about Doha. I'll make sure no one ever believes you again". He said she did and that he would remember it until the day he died.
WG denied that during the phone call from Cabarita Beach he became aware that the complainant was alleging something more than massages.
He denied that he punched AG in the face when they were at the Wests' place (see [590] above). He denied that, as alleged by LA, he picked AG and CG up when they were very young and shook them like ragdolls. He said he might have yelled at the girls for what they had done on the bikes.
WG denied there were occasions when he would lock the children separately in the garage. He denied he ever locked AG in the garage.
WG was referred to his evidence that his daughters never came back to The Channon at all during the time that KG was at the hospital with JG. He was referred to a book written by KG about the birth of JG which he said he edited. He was referred to an extract which read, "[WG] took the girls home for a while to pack their clothes and prepare for the next journey with [JG]". It was put to him in that context that he took the girls home from Ronald McDonald House while KG remained there, and he said, "A couple of days before perhaps, yes". He disagreed with the extract in the book that he took the girls home eight days after KG's caesarean operation.
He was referred to another extract from the book where KG stated she had an infection as a result of a drip and that she could not look after the girls in that state, so WG stayed at The Channon with them until they worked out what was wrong with her. He said he disagreed with this, and remembered talking to KG about it and saying that was not what happened. He said that the girls came up straight away after he picked them up from Melville House.
It was put to him that he had earlier said he did not disagree with anything in the book, and he said it was a long time ago that had he read the book.
It was put to him in that context that the incidents the subject of counts 1 to 3 occurred and he denied it.
He denied that he ever made the complainant eat chillies. He said the athletes he trained who came to the camp had a game which involved eating them, saying it was something that was done in their free time and also done with new athletes who came for the first time. However, he denied it was something he got them to do, although he said sometimes he would eat a chilli himself, as they weren't that hot.
He was referred to his earlier evidence that the athletes got him to participate once or twice and it gave him a taste for chillies, and that he said "I had these little hot chillies". He responded, "They're classified as hot but then I got to eat - when I got the taste for chillies, you eat a lot of what is really hot chillies and [find] out what hot chillies really means and they are not hot". He said his taste changed and now would call them mild.
WG denied the chilli eating process was him teaching runners how to push through pain.
WG was cross-examined on the shed and he said it had a sheet of tin which qualified as a door. He said it never had a latch or any locking device. He denied he put a lock on the shed. He said he used a piece of particle board and a stick to keep it closed.
He agreed the garage contained a box of diving equipment, describing it as a small crate. He denied he made the complainant get into the box, saying it was impossible. He said the box had no lid, no latch and no lock.
He denied he ever touched CG in the area of her vagina. He said the only time that CG became upset in the context of a massage was when she did not agree with the actual location of the pressure points. He agreed that his evidence was that at no stage did he ever massage any of his daughters in the area of the vagina.
He was asked why in the recorded conversation of 23 February 2012 with AG he did not say anything like, "I never massaged you in close proximity of the vagina". He said he did not say it because AG knew it. He said that for every single question that AG asked in the phone conversation, she knew what the answer was. He was referred to AG's comment in the conversation where she said, "I've been to many massage therapists, studied it myself properly now. Okay, to try and explain it, why it was always up near my vagina, why?" He was referred to his answer, "Yeah, well sorry". He said he was just going along with the conversation.
It was put to WG that he did not say to AG that this was something he and AG had spoken about many times before. He said he did not need to say it as it had been discussed many times.
WG was referred to AG's comment in the conversation where she said, "I saw you massage [the complainant] and CG the same way. Remember I always used to come in and yell at you and … I saw where your … hand was". His reply was, "Yeah, well I can apologise, that's it. I acted inappropriately and I didn't realise". He said he did not agree that AG had seen an inappropriate massage but did agree she was always there when he was massaging one of the other girls. He said that there was never one daughter on their own, but that there were always two and it was usually WG instructing.
WG said that his reference to going to sexual assault counsellors in the telephone conversation was to the fact that he went to a couple of people to help him find out if there was any way that he had "overstepped the boundary" that he was not aware of, and whether there was anything that had happened to the complainant, particularly the self-harm, for which he could accept responsibility.
WG was referred to his statement in the conversation that he threw the complainant in the bushes once. He said he did not remember it being out of anger or anything like that, and that he and the complainant "mucked around" a lot.
It was put to WG that when he referred to "overstepping the mark" in the telephone conversation, he was referring to inappropriate massages. He said he was not, but that he was speaking of the distinction between father and coach. He said he spoke to sports psychologists about the issue because he could not differentiate at times, particularly with AG, "was I father or was I coach". He said he believed that AG's emails when she was in America reflected this and that her evidence certainly definitely reflected it. He agreed there was no reference in the call to his coaching methods, but he said he knew what AG was talking about.
He was referred to AG's statement in the telephone conversation, "I think [the complainant] might be telling the truth about some of her accusations. I believe her." and his answer, "I think we might … there might [be] elements of truth, okay, there might be elements of truth". He said he was not sure what he meant by that and that there were obviously things missing.
WG referred to his remark in the call, "Yeah, okay I agree that back then I think, yeah, there might have been something in my head that was sick. I agree a hundred percent with you I don't disagree with you I think I had an issue. I had a problem". He responded that he was not a good father, but definitely was not an abusive father.
WG was shown Exhibit 44. He said he took photographs 41 and 42. He said he did not believe he took photograph 48. He said he had never seen the rest of the photographs before in his life.
It was put to WG that he took photograph 48 and he denied it.
It was put to him that his evidence about clearing out the shed in 2008 was false and he rejected it.
WG was referred to his evidence that the creek would flood to such extent that it would move tools around the property. It was put to him that the area which police excavated and found tools "G" and "K" was not an area where waters rose to and he rejected this.
The Crown put the allegations the subject of each of the counts to WG and he denied each of them.
KG said she spoke to the complainant about going to Doha. She said that the complainant told her she felt it was a second rate team and that she should be getting ready for the Commonwealth Games and World Juniors, and that she felt the School Sport Australia team was a real let down, even though it was a world team. KG said that prior to the complainant leaving for Doha she had not spoken at all with KG about any sexual activity between her and WG.
KG denied being involved in any sexual activity with the complainant at all before she left for Doha. She said that in the same period, AG had not complained in any way about impropriety involved in massaging. She said she had never been involved in any indecent activity with AG or with CG.
KG said that when the complainant returned from Doha she advised her to speak to the police about the incident that had occurred there. She said she knew Mr Connors personally and felt the complainant would be more comfortable speaking with him.
KG said she recalled the incident when the complainant had suspected appendicitis. She recalled the complainant stating she had a lot of abdominal pain and asked if she could see the doctor. She said she took the complainant to see the doctor to get her checked out, and left her there and went coaching. The doctor said that the complainant should go to hospital, and KG arranged for Mr Connors to take the complainant there. She was ultimately advised that the appendix was perfectly normal.
KG was referred to the training camp at Falls Creek to which I have referred at [328] above. KG said she advised the complainant not to go to Falls Creek but that she insisted. She said she spoke to the complainant on the phone about the events which occurred. She said the complainant was with her father and that she was incredibly distressed, and told KG she did not want to live anymore. She said the complainant said she had taken Panadol.
KG said the complainant returned home, insisting that Max drive her back to The Channon. She thought Max picked her up at the Gold Coast. She said that the complainant asked her to take her away, saying, "Mum can you just take me somewhere, just away from everything". KG said she took her to her mother's house at Cabarita.
KG said she stayed with the complainant for one night at her mother's house, and checked on her through the night. She said she found her on the couch in the foetal position rocking and whimpering, and that she was very distressed. KG said in the morning she was no better, and she rang the sexual assault counsellor that the complainant had already seen, Sharon Somerville, who suggested that she bring the complainant into the adolescent mental health ward in Lismore. KG said the complainant stayed at that ward for probably five nights.
KG said that when she took the complainant out of the ward she started to deteriorate quite quickly. The complainant ended up in the facility for six months without leaving.
KG said the statements made by her in the interview with the police in October 2011 were true and that she was never involved in an incident in Wollongbar. She denied she was ever present in a vehicle when, either nearby it or within it, WG assaulted the complainant. She also denied that she was trailing the complainant around in a vehicle all day.
KG said that at one point the complainant rang her and gave an ultimatum saying, "If you don't leave dad I'm going to cut you off and that's what my doctors have told me to do". She said the doctors had asked her to give the complainant space, which she respected.
KG said that the complainant came home from the Mental Health Unit adolescent ward. She said the complainant was 18 at that stage and it was her decision to make. She said the complainant was very happy about leaving but that she (KG) was reluctant because of the multiple times the complainant had tried to kill herself.
KG said the complainant was at home for just a bit short of six weeks, all in one period.
She said at the end of the six week period the complainant went into the adult ward of the Mental Health Unit and KG was not allowed to see her.
KG denied she was a big drinker, saying she would drink in moderation but not all the time. She denied ever taking a bottle of wine into her bedroom. She said her average consumption of alcohol in general was two glasses of wine or maybe a beer occasionally. She said she had never been drunk. She said she had never been convicted of a criminal offence and gave evidence of her involvement with various charities.
KG stated that the alleged incidents the subject of each count did not occur.
KG was referred to the opening two sentences of a handwritten letter the complainant sent to her (Exhibit 51) which read, "I know things have been really hard the last few months. I hope that what we talked about the other day isn't upsetting you too much". KG said she had a discussion with the complainant in relative proximity to the writing of this letter. She took the complainant out from the Mental Health Unit for day leave to a shopping centre and they had some lunch. She said the complainant said she was very sorry for what KG was going through with her, the amount of suicide attempts she had made and that things were going to happen that she may need to get some help for. KG said she had no idea what she was referring to.
KG said the letter was handed to her at one of the Monday sessions when KG went to see the complainant in the adolescent ward. She said the complainant said at the time how much KG meant to her and how much she needed her at that time.
KG was also referred to a handwritten letter she wrote to AG (Exhibit 58). She said her reference to the "very tragic situation" in that letter was about what was happening with the complainant. She was referred to her comment in the letter which said, "I know you believe that I live a repressed unhappy controlled life", and the statement "unhappy is true but the rest is not". She said she was terribly unhappy because she had lost her family.
She said when she wrote that letter she had received the phone call at Cabarita, and that that was her first understanding of anything of the nature of sexual abuse. She said that AG had asked to speak to her and told her that the complainant had just declared to her that WG had sexually assaulted her as a child, and that AG then said he also inappropriately massaged her. AG then said that KG was in danger, and then gave her an ultimatum to leave WG immediately or she would cut contact with her.
KG was referred to the photographs taken by Denise Alison. She said she had a discussion with her, and it was resolved it was probably best to go to different areas of the property that they all loved, and she would just take photographs and edit them after that. KG said she did not herself arrange any covering of private parts. She recalled the photographer telling her and the girls to move to particular positions and that they complied.
KG denied ever being told by the complainant that she had been in the shed. She said she was not aware of any time when the complainant was meant to be in the house but was absent overnight. She said she always knew where the complainant was. She said she always said goodnight to the girls before they went to sleep.
KG denied ever deliberately avoiding asking the complainant where she had been, knowing she had not been in the house.
KG was cross-examined by counsel for WG. She reiterated that following the birth of JG she was in Brisbane for a few months and then went to the Lismore Base Hospital, at which stage she and the girls slept at The Channon, but she would visit and be with JG all day during the day. She said she and the girls all travelled back from Brisbane to Lismore together.
KG said in the 18 months from the middle of 2000 to the end of 2001 when she and WG had separated, she saw WG on two occasions. One occasion was at Christmas 2000 at PB's house, and the other occasion was when KG invited WG out to The Channon for his birthday. She said that after she had moved to Goonellabah in February or April 2001 she did not stay at The Channon.
KG was asked whether the complainant seemed to like water and said she loved water. She said she often saw the complainant swimming in the creek and she bought her a surfboard. She also said she loved triathlons.
KG said she was not fearful of WG during the marriage and that he never dragged her by the hair towards the creek. She said that, to her observation, the complainant was not frightened of WG but that they had a good relationship. She said that the complainant was the one daughter with whom he had a really good relationship.
KG said that if the complainant was missing for three nights she would certainly have noticed it. She said she never saw WG working in the garden on a weekday in the second half of 1997. She said he would come home late and the girls would already be in bed.
KG said that during the time of her separation from WG, a male person by the name of David lived at The Channon and at Goonellabah when she moved there. She said that on New Year's Eve 2000 she went to Lennox Head with David and her four children. She said that David's son had been killed and that was where his ashes were, so it was a place they would often go. She said she remembered going there because David and AG were fighting that night.
KG said that generally Father's Day was celebrated at The Channon. She said she never saw the complainant taking WG coffee, as that was something KG would do.
In relation to Counts 26 to 29, KG said she remembered the children starting at the AB Paterson School. She denied the suggestion that the complainant spilled something on her school uniform as alleged by her.
KG said she could not remember if she went back to The Channon the week before the children started school at AB Paterson. She said the weekend after they started, she, WG and the children went to the beach at Southport.
KG was also referred to the facts surrounding Counts 46 and 47 in the indictment (see [172] above). She said after the Pacific School Games she and CG met up with the complainant, WG and AG at the airport in Sydney. She was asked whether she remembered where the family went and stated, "I'm not sure if we stayed at Lane Cove National Park, I think on that occasion". She then said she was pretty sure they did.
KG was referred to the events surrounding the Telstra All School Championships in Sydney, the subject of Count 63 (see [234] above). She was referred to the evidence of the complainant that the family stayed overnight in a motel at Olympic Park. KG said she was not sure where they stayed.
KG said she remembered attending the Down Under Meet in 2009 on the Gold Coast where the incidents the subject of Counts 76 and 77 were said to have occurred (see [295] above). She said WG was there doing first aid. She said that following the closing ceremony she went with WG to Burleigh Heads, whilst the complainant left with Max Pye and his family.
In relation to Counts 83 and 84, KG stated she remembered at about 9 am seeing WG at home. In relation to Counts 85 and 86, KG said she was not there when the alleged incident occurred, and that she was with WG on that day and they both visited WG's parents. She said that was mid-morning and that they stayed there for around an hour and a half.
KG said she recalled the complainant going to Falls Creek in 2009. She said she received a phone call from WG who had a squad there. She said WG told her the complainant was running away from him, that she was not herself and was very distressed. She said she spoke to the complainant and asked her why she was distressed.
KG said she saw the complainant picking firewood up from the shed on many occasions. KG said the complainant never made a complaint to her about her father in a sexual sense and never saw him being physically violent towards her.
KG stated that when the complainant came home in mid-2010 for six weeks, on the last day Max Pye stayed overnight. She recalled WG saying he did not want Max and the complainant sleeping under the same roof and that the complainant became quite angry and said to WG, "You will never coach me again".
KG denied that she and her husband were ever both in bed at the same time with the complainant.
KG said that the complainant had a camera from about 2008. She said she saw her taking photographs of her sisters.
In cross-examination by the Crown, KG agreed she was not particularly good at recalling dates. It was put to her that after the Down Under Meet in 2009, WG travelled back to The Channon and the complainant was with him.
KG was referred to the book she wrote concerning the birth of JG. She was asked whether she was trying to be accurate about the experiences she had, and said not with time, and that she was not focused on specific dates. She was referred to her entry which read, "[WG] took the girls home for a while to pack their clothes and prepare for the next journey with [JG]". She was asked whether the girls came to visit her and then returned home with WG. She said she was not sure if they actually did come and visit. She was referred to the entries which read, "I was booked into Ronald McDonald House" and "I needed the girls with me". She was then referred to the entry which read, "[WG] took the girls home for a while" and she said that was what she assumed at the time.
She was then referred to the entry which read, "I could not look after the girls in this state and I did not want them seeing me so sick. [WG] stayed back at [The Channon] with them until they worked out what was wrong me". It was suggested to her it was some period before they came back to stay with her, and she stated it would have been no longer than nine days. It was put to her that they were with WG at The Channon for nine or 10 days, and she said they would not have been, but that they stayed with Helen Opie for the majority of that week. It was put to her that she had written something different in the book, but she said it was not her focus to get the facts right as to where they stayed, but rather to bring her experiences across of a stillbirth, a neonatal death and her son.
KG denied she was giving her evidence to assist her husband. She was referred to school records for St Carthage's school (the primary school the complainant originally attended), which showed there were 58 school days in term 2 and that the complainant was absent for less than half of them. It was suggested to her that that showed the complainant was at home at The Channon for most of the school term. KG disagreed, and said that the only thing she could think of was that there was an agreement with her school.
KG was cross-examined on allegations that WG had mistreated her and AG. She denied that he had mistreated her and said she was not aware of any mistreatment of AG.
The complainant's evidence concerning Count 73 was put to KG and she denied all of it. She said that she did not drink to excess. She was referred to a telephone call between her and WG on 4 March 2012 which was lawfully intercepted, in which WG had said to her that AG had essentially accused her of "being a bloody alcoholic", and she responded that she drank too much. She said she said that in a sarcastic manner because AG was very good of accusing people of a lot of things. She said it was a very stressful situation because of what they were going through with the complainant.
It was suggested to her that she was admitting she had a problem where she would drink to excess when she was speaking to her husband on that day. She said absolutely not, and that if you looked at her lifestyle it would be impossible.
She was referred to the evidence of Rachel Clarke that she would take a bottle of wine into her bedroom when she went to bed. She said that was not correct and that Rachel Clarke only stayed at The Channon once or twice.
KG was referred to her evidence that she only became aware that civil proceedings were instituted in relation to the Doha incident when she was asked the previous day. She was shown a costs agreement and it was put to her that it was a deliberate lie when she said she only became aware of the proceedings on the previous day.
It was put to KG that David at no time lived with her at The Channon during the separation. She was referred to her evidence that WG returned to The Channon after Christmas 2000 for his birthday in January 2001. She agreed that she and WG went to The Channon pub on that occasion to celebrate his birthday and that David was there. She agreed she then returned to The Channon. It was suggested to her on that occasion WG stayed at The Channon and she denied it.
KG also denied that before the complainant came home from the clinic, she had told the complainant that things had changed and it would be different if she came home (see [346] above).
KG was shown Exhibit 43, the photographs tendered against her, and it was put to her that the complainant was not interested in an acting career or a modelling career. It was put to her it was her idea to have Denise Alison come to the home and take photographs of her and the girls naked. She said it was a group discussion, and that there was no distinct discussion that the photographs were to be taken of the girls but that it was a very casual arrangement. She agreed there were a number of photographs with her and her daughters naked. She agreed it was an unusual thing, but stated that they were a very unusual family and that this was just another extension of who and what they were.
KG was referred to a photograph of the complainant naked playing a guitar. She said that was her guitar, but denied she was there the night the photograph was taken. She said they were taken by the complainant for her boyfriend. It was put to her there was absolutely no evidence of that and she said that she was her mother and she knew that would be the case.
She denied that the remaining three photographs of the complainant in her bra and underpants were taken by her. She also denied she told the complainant that they were for her father and to pose in a sexy way.
It was put to KG that after the children left PB's house on Christmas 2000 they went to The Channon. She agreed the children did not particularly like being around their father at the time. It was put to her that David did not stay at The Channon on Christmas night and she denied that that was correct.
KG also denied that on New Year's Eve WG was looking after the girls while she went out with David. She said they were all with her. She was referred to her evidence that she was at Lennox Head with David because that was where his son's ashes were. She said she took the girls because David was close to the girls. She said he was their mentor and so they were just assisting him.
It was put to her that on an occasion in January 2001 after they had been to a pub as a family, she returned home and was with the three girls and was talking to them about sex. She denied that and stated she never discussed orgasms with her children. She denied she demonstrated to the girls how to masturbate.
It was suggested to KG that she went to the complainant's room that night and that the complainant asked her about making her father happy and if making noises for her father would be better for him. She denied this. She also denied that she touched the complainant's clitoris and put one of her fingers into her vagina (Counts 15 to 18, see [84] above).
KG was referred to the complainant's account of the incident in December 2004 which was the subject of Counts 35 to 40. She denied that the complainant was in her bedroom with her and her husband, that she had been drinking and the allegations of sexual abuse against her made by the complainant.
KG denied she ever had a conversation in which she said to the complainant that everything WG did was for the girls, and that the complainant asked her, "Is that why dad does things to me, to toughen me up?" She denied that she taught the complainant to use her tongue to rotate around a penis.
KG denied the complainant's allegations in respect of Count 67.
In relation to Counts 85 and 86, KG was referred to WG's evidence that he arrived at his parent's place at about 10 o'clock in the morning. She said she thought it was a bit later, around 11, but accepted it could have been 10. She said they stayed there perhaps for an hour and a half.
She denied she was in the vicinity of the BP Service Station at about 11:30 that day and that she was present in the car when WG tried to force the complainant into it.
She said that in 1999 she went to an event in which the complainant was competing and saw her eating hot chips. She said that to her knowledge that was not the first time she had seen her eating hot chips. She said she saw the complainant eating hot chips at the hotel at The Channon before 1997.
CG recalled that at The Channon there were flyscreens on the windows.
CG said the complainant had a camera and that she saw her taking photographs, including photographs of herself, AG and JG.
CG said that it never seemed like the complainant hated the water, saying that the complainant loved the water, loved the creek and loved surfing and swimming. CG said she practiced holding her breath under water and that she also saw the complainant doing it.
CG said she never saw her father dragging the complainant through the house, pulling her hair or anything like that.
CG said she and her sisters would help move firewood from the shed to the house. She said this would happen around winter time. She said she was involved in cleaning out the shed at the end of winter.
CG said she and her sisters would move wood into the shed.
CG said her father gave her massages which were connected with her athletics. She said she occasionally gave her father a massage. She said that when she massaged her father it usually took place in the lounge room. She said she massaged her father "six - not very many" times.
CG was asked if she ever saw her father massaging the complainant. She said no.
CG stated that her father never massaged her in a way that made her feel uncomfortable.
CG said she and her sisters stayed at Ronald McDonald House in Brisbane at the time JG was born for at least a couple of months. She said she could not remember her father ever bringing her back to The Channon for a weekend or a night.
CG said she recalled going to PB's house around Christmas time in 2000 and staying overnight, and going to O'Reilly's the next day. She said that none of the girls wanted to go to O'Reilly's, because it was Christmas and they did not want to leave their mother.
CG said she did not see WG slap the complainant across the face at O'Reilly's or any change in the complainant's behaviour whilst they were there.
CG was referred to New Year's Eve in 2000 and was asked whether she remembered going to Lennox Head. She said she went there with her siblings, her mother and David. She said Lennox Head was a spot that David used to take them. She said they had fish and chips there and that they sat on the hill where David had let his son's ashes go.
CG stated that when she was living at The Channon she went on hill sessions. She said she could not remember any time when they came back from a hills run when WG got out of the car and started dragging the complainant away.
CG said she attended a Down Under Meet in the winter of 2009 on the Gold Coast. She said she saw the complainant there as well as Max Pye and his family. She said that after the event she left with her father and the complainant went to stay with Max.
CG said there was never an incident at her grandparent's place where she and one or both of her sisters massaged WG.
In cross-examination by the Crown, CG admitted that on 15 October 2013 she pleaded guilty to an allegation that involved threatening the complainant not to give evidence at the trial. She agreed the date of the offence to which she pleaded guilty was 31 October 2012. She stated by then she knew of the allegations the complainant was making against both her parents.
It was put to CG that on 8 March 2012 following the arrest of her mother, she read the allegations contained in the police fact sheet to her father in a telephone call between her and her father whilst he was in Papua New Guinea. She said she did not directly read the allegations out to WG. She agreed she would have spoken to her father on the phone about them but did not directly read out a script. She agreed that she and her father discussed whether or not the phone call was bugged.
CG was shown the transcript of an intercepted phone call of 8 March 2012 in which she said to her father, "I'm just reading the actual full facts of the statement". She was asked whether she still maintained she did not read the allegations out to her father, and said she did not remember reading them out.
CG accepted that she was at The Channon the day the police searched the property and dug up tools. She said she had absolutely no idea what was going on that day. She said after that she became aware that the complainant was making very serious allegations of sexual assault against her father.
It was put to CG that she was prepared to interfere with the court process by threatening her younger sister not to attend as a witness in order to protect her parents. She responded, "To protect the truth, not my parents. The truth". It was put to her that she threatened the complainant that she would wind up dead. She said yes, because she had saved her life that day. She again said she had pleaded guilty but that she had saved her life on the bridge that day.
She agreed that on the day she made the threat, she arrived at Modanville Road because her mother had phoned her. She agreed that she, her mother and JG found the complainant. It was put to her that the complainant did not seem to be in any danger, and CG said she was wandering on the side of Modanville Road, which was the road that KG and JG took every afternoon on the way home. She said there was an alert that she was missing, and that of course she was in danger. She was asked why she felt the need to threaten her sister that she would die if she gave evidence against her parents. CG said that a transcript can be interpreted in two different ways. It was put to her that she threatened the complainant. She said that using the words "you'll wind up dead" was about some concern for her health. She said she was there to save the complainant's life that day.
It was put to CG that she said to the complainant, "If you agree to end this shit, then I'll drop you in Lismore". She was asked whether that was trying to save her life. She responded she was given two options when she went to court for this issue. She described as follows:
"I was given, 'You still will wait for your trial to be over until this one was over', okay. That's my livelihood, that's my passport, that's my freedom, okay, to help with this case, to be here to support the truth, okay. I'm not denying any of that but I was given two options with pleading guilty or not guilty at the time."
CG agreed that she said to the complainant, "This is big. You have really fucked up. You're in big trouble and you need to stop going ahead with the allegations or you'll regret it". CG said she was emotional and that it did show concern for the complainant's welfare. CG agreed she also said, "Why did you have to take it so far? We could have worked all this out without you going to the police. All we needed was a family counsellor". She said she was referring to Doha, not this situation.
CG agreed that she had been told by AG that WG had punched her. She agreed that she said to Lynne West, a woman that she stayed with for some time on the Gold Coast, "He I, I will admit, like he would lose control in coach [sic]. He was a strict father".
CG was asked whether she recalled an occasion when she and AG were riding bikes and fell into a flowerbed, and WG picked them up and shook them. She responded, "No. I fell, no. No, I don't remember that occasion".
She was asked about her recollection of the complainant eating hot chips, and it was suggested to her that this was not something you would normally do before a race. She said that was incorrect.
CG denied that she received a massage from WG in the area of her vagina and became upset. She denied she said, "Stop it, it hurts".
It was put to CG that she did not go with her sisters, mother, JG and David to Lennox Head on New Year's Eve in 2000. She rejected this. It was suggested to her that on that New Year's Eve she, her sisters and her brother were with WG in Lennox Head looking for her mother.
CG denied in cross-examination that KG would talk to her and her sisters about things of a sexual nature. She denied the incident which formed the subject of count 17 (see [82] above).
Ms Smith said that during the time she was at The Channon she noticed WG saying to the complainant from time to time "Take it easy, don't push yourself".
In cross-examination by the Crown Ms Smith said she was still friendly with CG.
In cross-examination, Ms Smith described the family as very open and very welcoming. She said she talked to WG about her menstrual cycle as he was her coach. She also described the family as very lovable people.
She was asked whether when she spent time at The Channon, she saw KG posing naked with her three daughters also naked. She said no, but said it would not surprise her if it happened. She corrected herself and said it would surprise her. She was asked whether if there were a number of photographs of KG posing naked with her daughters when they were aged 16, 19 and 20, if that was the sort of woman she knew, and she said no.
Dr Nittis also referred to the work of Dr John McCann cited by Dr Norrie in support of her conclusions. She said that research undertaken by Dr McCann showed that given the number and viciousness of the assaults, the use of weapons and the history of blood dripping on the floor from genital bleeding, it would be reasonable to expect the presence of scarring. She noted that Dr Norrie indicated that there was an area of lightness adjacent to the median raphe which was not an obvious scar on examination but "more obvious on magnification of photographs". Dr Nittis said she would be very cautious about retrospective findings being based on photographs.
After referring to the other articles referred to by Dr Norrie in her report, Dr Nittis stated she was unsure upon what basis Dr Norrie had made her assumption that "this level of hymeneal abnormality is not seen in physically mature women after normal intercourse and indeed after initial childbirth" or that "there is evidence some of the force used to damage the hymen occurred before puberty". Dr Nittis stated there was insufficient evidence for understanding how or why hymeneal caruncles appear (remnants of the hymen that are bordered by complete transections on either side). She stated that while it was tempting to assume that the hymen breaks down only after repeated acts of intercourse and childbirth, there had been no study she knew of which had followed women, examining their hymen, through these periods of their life. She stated that in those circumstances it would be difficult to conclude that it could not occur as a result of processes other than sexual penetration of the vagina.
Dr Nittis referred to Dr Norrie's opinion that the "initial cutting with scissors (may have been) was to enlarge the vaginal opening which may have been restricted by a hymeneal septum". She stated she was prepared to accept that the hymeneal tag seen on examination could be the result of a hymeneal septum which had broken down, but said that it was not evidence of penetration. She stated that both hymeneal tags and septal remnants are considered normal variants, having been documented in non-abused children.
Dr Nittis did acknowledge that children can experience repeated instances of sexual abuse and assault without genital abnormalities being detected on clinical examination.
Dr Nittis prepared a further report on 26 February 2019. In that report, she commented on and criticised various aspects of the evidence given by Dr Crehan and Dr Norrie at the trial. Her ultimate conclusion was there was nothing in the genital examination of the complainant which supported or precluded her version of events. It is unnecessary to deal with this report further for the purpose of considering this ground of appeal.
Senior counsel for WG submitted that the crucial part of the proposed evidence of Dr Nittis was the question of the significance of the observation of the hymen and her conclusions on that issue (see [951] above). He accepted that Dr Nittis did not deal with a critical matter relied on by Dr Norrie, namely, that the remnants of the hymen were not oestrogenised (see [641]-[644] and [653] above). He submitted that Dr Nittis must have taken that into account and it could have been explored had she been called.
So far as Mr O'Sullivan's evidence was concerned, senior counsel for WG submitted that he was in the position that if Dr Nittis was to be called by anyone, it was going to be by the defence.
In R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, the Court, after citing Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 and Whitehorn with approval, set out the following general principles (at 575):
"1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
See also R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [39]-[42]; R v Gibson [2002] NSWCCA 401 at [48].
The principle has been held to extend to expert witnesses. Thus in Gilham v R [2012] NSWCCA 131 it was concluded that the prosecution failed to fulfil its prosecutorial duty by not calling an expert pathologist initially retained by the Crown whose view was contrary to those of other experts called by the Crown: Gilham at [383]-[412].
In Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 one of the issues was whether the deceased had died as a result of murder or suicide. A Dr Bradhurst who had undertaken the post-mortem expressed the view it was suicide. Other pathologists called by the Crown who had not attended the post-mortem or examined the deceased took a different view. One of the issues was whether the prosecution should have called other pathologists who supported the views of Dr Bradhurst, including a Dr Botterill who assisted at the post-mortem. The Crown had not taken a statement from him.
Gleeson CJ and Hayne J rejected this contention. They made the following comment (at [47]):
"[47] … Even assuming, however, that one or more of them, when qualified, would have given evidence which supported the opinions of Dr Bradhurst, there has been no miscarriage of justice. First, the notion of 'balance' in this context is seductive, but misleading. On its face it suggests that, in every case where expert evidence is to be led, the prosecution must seek out and adduce evidence of competing or contradictory opinions. Why that should be so in an adversarial system is not revealed. What is required is that the prosecutor is bound to ensure that the prosecution case is presented with fairness to the accused. Fairness does not require some head count of experts holding differing opinions. Secondly, it is to be recalled that the evidence now in issue is expert evidence of opinion. It is not evidence of facts. R v Apostilides, and like cases about the obligations of the prosecution, are primarily concerned with evidence about the facts of the case. Other considerations intrude in relation to expert evidence, not least being the consideration that such a witness can give evidence only by reference to facts which will have to be established otherwise. In a case such as the present, where several experts were to be called to give evidence, the prosecution, not already being in possession of evidence from other expert witnesses, was not bound to seek it out by having the witness qualify himself or herself to form an opinion and then to call the witness to give evidence of the opinion that was formed."
Gaudron J (in dissent) took a different view. She considered that Dr Botterill should have been called. She stated (at [119]) that it was not disputed that Dr Botterill assisted in the post-mortem, and that it was "to be assumed that he would have been in a better position to form an opinion about the nature of the marks on [the deceased]'s body and, perhaps, the petechial haemorrhages than those experts who based their opinions mainly, or, in some cases, wholly on photographs".
Gummow and Callinan JJ noted at [173] that the appellant's counsel at trial addressed the jury on the basis that the failure of the Crown to call Dr Botterill and other pathologists in support of Dr Bradhurst was improper and unfair. They added that the trial judge gave a clear and helpful direction on the issue. After referring to Whitehorn and Apostilides, they made the following comment (at [176]):
"Even if, notwithstanding that the appellant was fully apprised of the opinions of the experts who were not called, the respondent should have called those witnesses as we are inclined to think he should, the trial judge's direction following the appellant's counsel's strong criticism of the respondent in his address, would have operated to cure disadvantage to the appellant (if any) that might otherwise have occurred."
There are a number of matters that need to be taken into account in the present case. First, although Dr Nittis was present during the examination and took photographs, it does not seem to me it could be said that it was a joint examination. Indeed, Dr Nittis made this clear in her disclaimer in the opening paragraph of her report.
Second, contrary to the submissions of senior counsel for WG, the evidence of Dr Nittis was not necessary for the unfolding of the narrative, in the sense of providing information of what occurred or was seen at the examination. Dr Nittis did not dispute any of the observations made by Dr Norrie at the examination, apart from criticising her subsequent reliance on a photograph to identify a scar. The evidence sought to be adduced from Dr Nittis was her expert opinion on established facts, rather than any factual issue. Thus, the reason given by Gaudron J in Velevski for concluding that the doctor who assisted at the post-mortem should have been called does not apply in the present case.
The question remains whether Dr Nittis, having been present at Dr Norrie's examination, and subsequently having provided an opinion at the request of the accused which was in some respect critical of the conclusions of Dr Norrie, was an expert who the Crown was obliged to call.
With some hesitation, I do not think that the circumstances of the present case were such that the Crown was obliged to call Dr Nittis. It seems to me that if WG had retained an expert to provide an opinion based on the reported observations of Dr Norrie and came to a different conclusion, there would be no obligation on the Crown to call that expert. Although the prosecution is under an obligation to conduct a case fairly and generally to call all witnesses relating to the unfolding of the narrative whether they assist the prosecution or not, that obligation arises in the context of an adversarial system: see Velevski at [47]; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [153]. It does not seem to me in the context of such a system that the Crown has an obligation to call any expert retained by the accused who happens to disagree with the views expressed by an expert retained by the Crown.
The question is whether Dr Nittis' presence at the examination makes a difference. It would have been necessary for the prosecution to call her, consistent with their obligation, if she had made different observations during the course of the examination. However, she did not disagree with what Dr Norrie observed, but rather drew different conclusions from the same factual background. In circumstances where she was not retained by the Crown to conduct or assist in conducting the examination as distinct from taking photographs, the fact that she gave an opinion which differed from that of Dr Norrie after she had been retained by WG did not mean the Crown was obliged to call her.
I do not think that r 89 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) alters this position. The rule, subject to presently relevant exceptions, provides as follows:
"[89] A prosecutor must call as part of the prosecution's case all witnesses:
(a) whose testimony is admissible and necessary for the presentation of all of the relevant circumstances, or
(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue."
The rule is a form of delegated legislation.
So far as r 89(a) is concerned, this does not extend beyond the common law principles enunciated in Whitehorn and Apostilides to which I have referred above. I do not think that r 89(b) extends this principle to require a prosecutor to call all expert witnesses who may be available irrespective of whether they were retained by the prosecution or an accused.
Further, even if the prosecution should have called Dr Nittis, it does not seem to me that the failure to do so constituted a miscarriage of justice such as to warrant a new trial. The need to establish such a miscarriage was emphasised by the plurality in Australian Securities and Investment Commission v Hellicar in the following terms (at [153]):
"What was held by this Court in Apostilides to be the duty of a Crown prosecutor in relation to the calling of evidence must be understood in the light of a number of relevant considerations. First, it is to be remembered that a criminal trial is an accusatorial process in which the prosecution bears the burden of proving its case beyond reasonable doubt. The prosecutor's duty stems from the very nature of the proceedings. Secondly, as this Court pointed out in Apostilides, the conclusion that a prosecutor has failed to call a witness who should have been called does not, of itself, require the further conclusion that the conviction recorded at that trial must be set aside. Rather, in the words of the common form criminal appeal statute, the question would be whether, having regard to the conduct of the trial as a whole, there was 'on any other ground whatsoever a miscarriage of justice'. If a prosecutor's failure to call a witness who should have been called occasioned a miscarriage of justice, the conviction entered at trial would be set aside and a new trial would be ordered. The failure to call the witness could not, and would not, found any reassessment of the evidence that was called at trial, let alone any suggestion that the cogency of that evidence should be discounted."
In the present case there are two reasons which lead to the conclusion that the failure to call Dr Nittis did not result in a miscarriage of justice. The first reason was that Dr Nittis was available to be called on behalf of WG. Trial counsel's reason for not calling her was because he was able to adequately address matters in her report through questions asked of Dr Norrie. There was no suggestion made by him in his affidavit that the accused would be in a better position had the Crown called Dr Nittis.
In that regard it is of some significance that no application was made to the trial judge to invite the prosecutor to reconsider her decision not to call Dr Nittis or to make any comment to the jury on the failure to call her: see Apostilides at 575. This factor, combined with Mr O'Sullivan's evidence, makes it difficult to conclude that there was a miscarriage of justice.
The second reason is that Dr Nittis did not deal with the critical plank of Dr Norrie's reasons for her conclusion, namely, that the remnants of the hymen were not oestrogenised. Although senior counsel for WG on the appeal submitted that this could have been dealt with had she been called, the fact the matter was not dealt with in her first report of 6 August 2015 gives further support to the conclusion that there was no miscarriage of justice.
In dealing with this ground I have considered it in the context of the 6 August 2015 report, rather than the report prepared by Dr Nittis for the purpose of the appeal. This is because the obligation of the prosecutor must be considered by reference to the evidence proposed to be led from Dr Nittis at the time of trial, not from an opinion she had formed after viewing the transcript of the evidence of Dr Crehan and Dr Norrie at the trial.
This ground has not been made out.
Dr Roberts went on to say that he would consider from a "psychiatric viewpoint that the evidence which appears from the material provided to be conclusive that recovered memory had occurred would be a matter that I would consider appropriate for the Court to be made aware of".
Senior counsel for WG accepted at the hearing that as stated in the affidavit of Mr O'Sullivan, the Crown was expressly informed that it was not WG's intention to run a case of recovered or false memory. He agreed that the case was run on the basis the complainant was a liar.
As I have previously set out, in the present case it was accepted by senior counsel for WG that the evidence was new evidence and not fresh evidence. As such, it is necessary for the applicant to demonstrate the evidence is of such cogency that innocence is shown to the Court's satisfaction, or is such to give rise to a reasonable doubt as to guilt.
The evidence must be considered in the context of the evidence given at the trial. I have dealt with the question of whether the verdict is unreasonable in dealing with ground 3 and have concluded that it was not. None of the new evidence sought to be admitted satisfies me of WG's innocence or causes me to have reasonable doubt as to his guilt.
In that context, senior counsel for WG referred to the photographs of the shed (Exhibit 2). He pointed out that the photographs showed that the shed did not have substantial walls on two sides. He also pointed out that it was of aluminium construction with a timber frame, and that on two sides half the wall was open and covered with chicken wire. He accepted that the complainant's evidence was that a hole in the chicken wire was not present when she was in the shed.
Senior counsel for WG said that the shed was significant on a number of levels. He submitted that as it was not a fully enclosed shed, it could not be said "that the complainant would not be able to be seen by anyone walking past". Nor, he submitted, could it be suggested that "she would not have been able to raise help by shouting", or that if she was crying in pain, "that it would not have been heard by other people in the house". He then submitted she would have been able to escape. He submitted that two of the walls were only secured by chicken wire which was nailed in place at intervals on a wooden bearing. He also submitted that the other matter of significance was the proximity of the shed to the house.
Senior counsel for WG pointed to the fact that three of the other inhabitants of the house were the complainant's brother and sisters. He submitted that AG, who was called by the Crown, never gave evidence that she was aware the complainant was locked in the shed. He submitted that it beggared belief that the other occupants of the house would not have been aware of the absence of the complainant for the periods of time she alleged. He accepted that the children had their own bedrooms.
Senior counsel for the WG next referred to the incidents where the complainant stated she had been cut with tools. He referred in that context to the evidence in respect of Counts 11 and 12, 26 to 29, 33 and 34, 41 to 43, 44 and 45, 49 to 52, 58 and 59, 60 to 62 and 65.
Senior counsel for WG referred to the description of the barbed wire and tools "F", "G", "H", "I" and "J". He submitted that given the repeated assaults upon the complainant with metal objects, in combination with the allegations that she was tied up with barbed wire, it was significant that there was a "complete absence of any apparent injury". He referred to Dr Crehan's evidence that the genital examination of the complainant was normal. It should be noted that Dr Crehan also stated that the genital area has a very elastic skin or mucosa which stretches to withstand penetration or abrasion without visible injury. She also said that the genital examination neither proved nor disproves an allegation of sexual assault, and that the normal examination was still consistent with the history related to her by the complainant (see [560] above).
Senior counsel for WG submitted that Dr Hoey-Thompson's diagnosis, which was that the complainant's post-traumatic stress disorder was likely to be the result of trauma sustained before the complainant was aged five or six, was based on the history the complainant had given her, rather than on any independent observation of Dr Hoey-Thompson.
In relation to the submission that there was no corroboration of the complainant's statement that she spent many nights in the shed, the Crown referred to the evidence in respect of Count 5, where the complainant said that on her return to the house KG was making lunch but said nothing, and her answer in cross-examination that KG did not talk much in front of WG (see [23] above). The Crown submitted that KG's lack of reaction explained the complainant's conduct. The Crown also referred to similar evidence given by the complainant on Count 19.
The Crown also referred to the complainant's evidence in relation to counts 49 to 52, which was to the effect that after those incidents occurred, she climbed out of the window to get a drink and climbed back in (see [193] above). It was submitted that this showed that the complainant took various steps to avoid revealing she had been abused in the shed, in part because of the threats WG had made.
The Crown also referred to the complainant's evidence that on a number of occasions WG threatened to kill the complainant if she told anyone what had occurred, the first of such threats being made in the year 2000 following the incidents the subjects of counts 11 and 12 (see [51] above). The Crown also referred to the threat made by WG following the incident the subject of count 65 (see [258] above).
The Crown submitted that it was unclear whether the shed was capable of being locked at the time the incidents took place.
That does not mean it is unnecessary for this Court to conduct its own evaluation of the evidence. However in doing so it is important to remember that, as was pointed out in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, it is not enough to conclude that it was open to the jury to reach a different conclusion. Rather, the question is whether it was open to the jury to reach the conclusion at which they arrived, having regard to the fact that in most cases any reasonable doubt held by the appellate court after taking account of the advantage to the jury will be a doubt the jury ought to be expected to have had.
As is apparent from WG's submissions, there was no particular challenge to any of the individual counts. Rather, the submission was that the matters upon which reliance was placed meant that the jury should have had a reasonable doubt in respect of all counts.
I have set out the evidence in detail above. There are a number of matters which should be noted. First, the complainant was clear and consistent in her recollection of events, both in her evidence in chief and in cross-examination. Second, as the Crown pointed out, she was able to link the events to particular circumstances in her life. WG's written submissions described the allegations as "bizarre". Whether or not that is an appropriate description, the complainant gave an account which, having regard to the matters to which I refer below, the jury were entitled to accept.
There are matters which provide powerful support to the complainant's account of the incidents which occurred. Her evidence of writing "trapped", "Dad", "wee" and "Mum is coming" was corroborated by the fact that a piece of wood with these words written on it was discovered in the framing on the floor along the western wall of the shed during the police search in 2012. Similarly, her evidence of burying the tools "G" and "K" following the incidents the subject of Counts 58 and 59 was corroborated by their discovery during the police search (see [567] above). Likewise, her evidence of hiding her underpants and tool "I" following the incident the subject of count 65 was also corroborated by their discovery during the police search in the area where she had stated that she had hidden them (see [570] above).
The suggestion made by WG that the complainant came back to The Channon after 2010 and planted these items is, to say the least, implausible. Moreover, the thesis that tools "G" and "K" were buried at that time is inconsistent with the opinion expressed by Professor Fitzpatrick as to the length of time the tools were buried.
Further, the entries in the 2006 and 2007 diaries (particularly the 2006 diary to which I have referred at [235]-[243] above) are consistent with the allegations made. The jury were entitled to accept that these entries were made around the time the incidents in question occurred, which lends further support to the complainant's version of events.
It is in that context that WG's submission concerning the absence of complaint falls to be considered. As the Crown pointed out, there was a complaint to Nicky Frey in January 2010 (see [518] above), a complaint to Judy Wallis who visited the complainant while she was at Richmond Clinic (see [529] above), expressions of concern to LA (see [471] above) after the complainant returned from Doha, and complaints to PB around June 2010 (see [458] above).
It is true that all these complaints took place after the sexual assault in Doha. However, the jury was entitled to accept the evidence of Dr Hoey-Thompson that the incident in Doha caused the complainant to appreciate that what had occurred was wrong (see [661] above).
Further, the jury was entitled to have regard to the complainant's evidence of threats made against her by her father.
The jury was also entitled to reject WG's explanation of the phone conversation with AG (see [594]-[595], [685]-[689] and [766]-[773] above). The jury was entitled at the very least to conclude that WG was admitting to inappropriate sexual conduct with his daughters.
The Crown relied at the trial on the photographs in Exhibit 44 as showing that WG had a tendency to have a sexual interest in his daughters. The jury were entitled to reject WG's evidence that he only took photographs 41 and 42 of the exhibit. The jury was correctly directed as to the use that could be made of this material as tendency evidence, and were entitled to conclude that the photographs demonstrated that WG had a sexual interest in his daughters.
Senior counsel for WG placed considerable reliance on the fact that many of the incidents involved the complainant being locked up overnight without her absence being observed. He submitted that having regard to the structure of the shed, she could have been observed in the shed by anyone walking past, and that it would have been easy for her to escape or call out for help. I have referred in this context to the evidence of AG that there were times when she noticed that the complainant was absent, but thought the complainant was at Fiona Rourke's house (see [584] above). By contrast, KG stated that if the complainant had been missing those nights, she would have noticed it.
It was open to the jury to accept the complainant's evidence in respect of the counts against WG, and reject KG's assertions that she was not aware of the complainant's absence from the house and that the complainant had a really good relationship with WG.
The jury was also entitled to reject the evidence of CG that she was not threatening the complainant, but rather seeking to protect her, when she made statements to the complainant seeking to prevent her from going ahead with the proceedings (see [882]-[883] above). The jury in those circumstances was entitled to discount her evidence to the extent it cast doubt on the complainant's account.
There are other matters that may have caused the jury concern. First, there was conflicting evidence of the complainant's fear of the shed. Second, the complainant's expressed fear of swimming in the creek was not supported by other witnesses who had observed her at The Channon. Although these matters may give rise to doubts as to the reliability of the complainant's account, the jury, having had the advantage of seeing WG and KG give evidence, and taking into account the other matters I have referred to, was entitled to conclude beyond reasonable doubt that the offences were committed.
I have also considered the evidence led on behalf of WG that he was overseas around the time some of the incidents occurred. However, as I have pointed out, a comparison of the dates when he was overseas and the complainant's evidence of the approximate dates of each of the incidents did not preclude the conclusion that the assaults occurred around the time alleged by the complainant.
There is also support of the complainant's account of the earlier assaults in the evidence of Dr Norrie, in particular in the evidence which I have set out at [641] above. In both written and oral submissions, WG relied on the fact that the genital examination conducted by Dr Crehan disclosed no abnormalities (see [1033] above). However, as I have pointed out, Dr Crehan stated that the genital examinations neither proved nor disproved the allegations and that the normal examination was still consistent with the history the complainant gave her.
WG also submitted that the complainant's treatment and counselling may have caused the complainant to create or elaborate upon memories which were not accurate, even if genuinely believed. As I have pointed out, such a case was not advanced at the trial. Further, it was contrary to the evidence of Dr Hoey-Thompson which I have set out at [663] above.
Taking all these matters into account, it was open to the jury, in the sense described in the authorities, to reach the conclusion it did. Any doubt arising from the matters to which I have referred at [1067]-[1068] above is resolved by the advantage of the jury in hearing the evidence of the complainant, WG and KG and the other witnesses, together with the other objective matters to which I have referred at [1056]-[1058] above. The verdict was not unreasonable. This ground of appeal is not made out.
The trial judge rejected an application to discharge the jury. She noted that, contemporaneously with the issue being reported to her, she received a note (jury note 17) to the following effect:
"After spending a considerable amount of time on a particular incident we have come to the point where we are unable to reach a unanimous decision. Could you please provide further directions?"
It became apparent while the trial judge was responding to the jury note that it appeared that the jury had reached unanimous verdicts in respect of the counts relating to all incidents except one. The jury was asked to return to the jury room and indicate which counts related to the particular incident about which they had not reached unanimity.
Her Honour then proceeded to hear the application to discharge the jury and refused it, stating that she would give reasons later.
Her Honour noted that while the application was being heard and considered, she had been handed a jury note (jury note 18) which was opened after the discharge application was refused. That note indicated that the jury were unable to reach unanimous verdicts on three counts only, Counts 87, 88 and 89. She noted it was agreed that a perseverance direction should be given to Counts 87, 88 and 89 and that none of the unanimous verdicts should be taken. The jury did not deliberate on 29 June 2016, but on 30 June 2016 sent jury note 19, indicating that unanimous verdicts would not be possible in relation to Counts 87, 88 and 89. A majority verdict direction was then given, and a short time later the jury delivered unanimous verdicts of guilty on counts 1 to 86, and verdicts of at least 11 jurors of not guilty on counts 87, 88 and 89.
Her Honour, in her reasons for refusing the application to discharge the jury, stated that the well-known test for the discharge of the jury was enunciated in Crofts v The Queen 186 CLR 427; [1996] HCA 22, namely, whether there was or is "a high degree of necessity for the jury's discharge".
Her Honour summarised the matters that she took into account in declining to discharge the jury by reference to 17 points. It is unnecessary to set them out in full, although I have referred later to the particular matters in those points relied on by the Crown in opposition to this ground of appeal.
Her Honour concluded that the concern expressed by one juror did not cause her to doubt "that the verdicts ultimately given by the jury over one week later were true verdicts". She said she was satisfied that "the events of 21 June did not affect or infect the jury's deliberations nor the integrity of the trial". She said that there had been "no risk of a mistrial nor any risk of miscarriage of justice".
The sheriff also recorded that several other jurors recalled the same incident and corroborated this version of events. Other jurors said that "J" would take any disagreement with her opinions personally.
The sheriff's report also dealt with the allegation that some jurors were exhibiting bullying behaviour to shorten the deliberation process. The report stated that the majority of jurors did not observe any of the alleged behaviour, although one juror suggested that "J" herself had tried to hasten deliberations. Another juror recalled that two female jurors were "fed up" and wanted to go. However, that juror said that it did not compromise the deliberation process and that each charge was carefully considered by the jury.
In addition, the sheriff reported that the majority of jurors did not observe any behaviour amounting to deliberate prolongation of the deliberation process. The one exception was a juror who believed that another juror was deliberately "killing time".
The sheriff noted that, without exception, all jurors interviewed stated that the deliberation process was conducted "very seriously, fairly and just[ly]". One juror noted, "We were professional, not rushed, as justice needed to be done". The sheriff concluded that on the balance of probabilities, none of the allegations of bullying among jurors, attempts to hasten deliberations and attempts to prolong deliberations were sustained.
Senior counsel for WG, after referring to this report, submitted that what the account revealed was that the threshold for the discharge of the jury had been reached: Webb v The Queen (1994) 181 CLR 41 at 53; [1994] HCA 30.
In the present case I do not think that the email of 21 June 2016, taken in context, would give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the jury had not discharged or would not discharged its task properly. First, the allegation made no specific allegation of bullying, but rather expressed a general feeling of bullying.
Second, the juror did not write to the judge outlining her concerns, but rather took the option to wait until the next day to see if the issue resolved itself. It would appear that it did, as the juror thanked the officer and the deliberations continued without incident for a further five days. The complaint thus was essentially historical and could not give rise to a reasonable apprehension that the jury was not properly performing its task; it was perhaps a relatively brief reaction to what was plainly a stressful environment. Thus in the circumstances, it was not necessary for the trial judge to make further inquiries, much less discharge the jury.
The subsequent material does not alter the position. So far as the email of 23 October 2013 is concerned, it may suggest some hostility towards and dislike of a particular juror, but that does not lead to the conclusion that the jury did not properly perform its task. I have referred to the sheriff's investigation and particularly his statement that all jurors interviewed said that the deliberation process was conducted "very seriously, fairly and just[ly]".
In the circumstances, the trial judge was correct in declining to discharge the jury. This ground of appeal has not been made out.
At the hearing of the appeal, senior counsel for KG made reference to the supporting evidence of CG and the good character of KG. Apart from that he did not elaborate on the written submissions.
The jury as the constitutional trier of fact was entitled to consider whether the evidence of the complainant was reliable or, as submitted to them, that of a mentally disturbed person. As I pointed out in dealing with the unreasonable verdict ground raised by WG, the complainant was clear in her evidence both in chief and in cross-examination and the transcript of her evidence does not present as the imagining of a mentally disturbed person. The jury was also entitled to dismiss the somewhat fanciful proposition that the complainant maliciously buried the tools presumably in an attempt to support her allegations against WG. The jury was also entitled to take into account the tendency evidence to which Fullerton J has referred in dealing with ground 4 of the grounds of appeal.
Having considered the submissions and the case against KG as presented at trial, I am firmly of the view that it was open to the jury in the sense described in the authorities to be satisfied beyond reasonable doubt that KG was guilty of the charges against her.
I would only add two matters. First, in reaching this conclusion I have been careful to consider only evidence admitted against KG. Thus, for example, I have not taken into account the evidence of Dr Norrie or Professor Fitzpatrick or the evidence of physical violence, threat and use of tools led only against WG. Similarly, in considering the tendency evidence I have not taken into account those photographs which were admitted against WG only.
Further, I agree with the comments made by Fullerton J concerning the submission which she set out at [1461] below in her judgment. Not only was it inconsistent with the manner the complainant gave her evidence and unsupported by expert witness at the trial, it was directly contrary to the evidence of Dr Hoey-Thompson which I have set out at [659]-[663] above.
In the circumstances KG should be given leave to appeal against her conviction but the appeal dismissed.
While this is not the occasion to review the correctness of this Court's decision that there should be a joint trial, I would simply observe that there were features of the indictment and the evidence, including context and tendency evidence, which more than justified the trial being convened as a joint trial. Of primary significance were the number of counts with which KG was charged which were related to WG in some way or which involved joint conduct:
1. Count 13 (a charge against KG only) alleged that she was an accessory before the fact to WG's offending in count 14, being an allegation that he had sexual intercourse with JG without consent by instructing her to "make noises" when her father had sexual intercourse with her "to make it better".
2. Count 18 (a charge against KG only) alleged that she demonstrated masturbation techniques to JG which JG said occurred on the same night as sexual intercourse with WG charged as count 19.
3. Count 25 (a charge against KG only) alleged that she demonstrated to JG how she should use her tongue on a man's penis to make it erect, a technique which she then deployed when her father was unable to achieve an erection (see incident 25 above).
4. Counts 37, 38 and 40 relate to an incident alleged to have occurred in the bedroom of KG and WG in December 2004 which involved both accused, with related counts 35, 36 and 39 charged against WG occurring at the same time (see incident 20 above).
5. Count 48 (a charge against KG only) involved a further instruction on the use of a tongue around a penis in the context of a discussion about JG "pleasing" WG.
6. Count 86 involved concealing the serious indictable offence (detain for advantage) which was charged as count 85 against WG.
Further, in addition to the evidence directly admissible against KG, a large body of evidence directly admissible only against WG was admitted against KG as context evidence. Her Honour gave detailed directions as to the permissible use the jury could make of this evidence in reasoning to verdicts in KG's trial. No objection was taken either to the admission of the evidence as context evidence or the directions concerning it. On the appeal, particular features of the relationship evidence admissible solely in the Crown case against WG were said to operate to KG's prejudice by permeating her trial in a subtle but nonetheless impermissible way such that the trial judge's directions, which sought to separate and isolate the evidence admissible against her, would have been of little or no effect.
This Court's attention was drawn by KG's counsel to the telephone conversation between AA and WG in February 2012 in the course of which he made admissions to having sexually offended against her and her sisters as a further example of evidence not admissible against KG but capable of impermissibly permeating the jury's consideration of the evidence solely admissible against her. Finally, it was submitted that the sheer number of the offences with which WG was charged, the time frame over which those offences were alleged to have been committed, and with the great majority allegedly committed at the family property, also operated to KG's prejudice.
No complaint of any kind was advanced about the adequacy of the trial judge's directions and, in my view, neither could there be. The form and structure of the summing up, which included comprehensive written directions identifying the evidence admissible against each of the accused on each of the counts on the indictment, directions that were further elaborated upon in her Honour's oral directions, were designed to ensure that the jury did not lose focus on the need to be discriminating when they were considering the adequacy of the evidence on any one count on the indictment to prove the guilt of either of the accused beyond reasonable doubt.
In her oral directions her Honour went to considerable lengths to ensure that the jury did not return verdicts of guilty against KG because they might consider her to be a bad or neglectful mother, or on the basis of what they might be persuaded her husband had done to her daughters, even if the jury were satisfied that some of what he did was with KG's knowledge.
A warning against misuse of any evidence not admissible against the applicant was in the following terms:
You are never permitted to punish [KG] by finding her guilty of any one Count alleged against her simply on the basis of what [WG] is alleged to have done. You are never permitted to punish [KG] by finding her guilty of any Count alleged against her simply because you might perceive her to be a bad or neglectful mother. You must never engage in speculation such that you come to reason along the lines of, "well the accused [KG] is [JG's] mother and [WG's] wife so she must have known what was allegedly going on at the hands of [WG]".
Keep in mind at all times you can only convict [KG] of an offence alleged against her if you are satisfied beyond reasonable doubt on the basis of evidence that was admitted against her that she committed the conduct alleged against her and where necessary that she possessed the necessary state of mind.
Additionally, the trial judge's summing up to the jury included the following:
1. A standard direction to the jury to decide the matter dispassionately and to put to one side feelings of sympathy or emotion and which included "you must understand this is not a court deciding questions related to parenting styles or casting judgment on decisions made within a marriage".
2. A direction in conventional terms about there being separate trials in relation to the two accused and the requirement that the evidence in relation to each be considered separately.
3. A direction also in conventional terms about the effect of multiple counts being alleged against the accused and the need for the evidence on each count to be considered separately.
4. Directions about the expert witnesses, including a direction that Dr Norrie's evidence, parts of Dr Crehan's evidence and the evidence from Professor Fitzpatrick concerning the burying of tools was only admissible against WG.
5. A comprehensive written direction of 17 pages titled "Evidence that is inadmissible against one or other accused person" (identified as written direction 2) which was also the subject of oral directions included matters such as:
1. all exhibits in the trial had been given a designation as either "WG", "KG" or "WG/KG" so that it was clear whether a particular exhibit was admissible against KG or WG or both of them.
2. a list of all the categories of oral evidence which were not admissible against KG.
3. an explanation of the extent to which JG's evidence in relation to abuse by WG was admissible in the case against KG.
4. a strong warning against any misuse of JG's evidence about WG in the jury's consideration of the case against KG.
5. an explanation about how to approach the evidence of an individual accused in a joint trial.
1. Separate and detailed written "elements" documents identifying the elements of each count against each accused; the evidence from JG relevant to proof of each count and, where relevant, evidence from other witnesses (including each accused) with transcript references, together with any additional directions. The trial judge read each of these documents and informed the jury that they were to be read in conjunction with her oral directions.
2. The elements document in relation to KG was "written direction 7" and was read to the jury.
3. Separate written directions as to the potential use of "other (and uncharged) acts" and tendency reasoning (written directions 5 and 6 for WG, 8 and 9 for KG (also delivered orally).
Rather than complaining about her Honour's directions, it was senior counsel's submission on the appeal that the sheer repetition of the trial judge's direction obliging the jury to consider only the admissible evidence adduced in support of each count with which KG was charged to the exclusion of evidence admissible in proof of WG's guilt, and the repeated warnings against the misuse of the evidence, illustrates the difficulty the trial judge was confronted with in concentrating the jury's attention on a mass of evidence they were told to disregard. In counsel's submission, not only would the discriminating focus required of jurors be necessarily overwhelmed by the magnitude of their task, the fact that directions of this kind were called for at all carried a real risk that a fair trial of KG was compromised, such that being tried jointly with WG made her conviction more likely, and unfairly so, thereby resulting in a miscarriage of justice.
In any event, the submission advanced in appeal that "most of the evidence in the joint trial" was inadmissible against KG is simply not the case. There were 23 other witnesses in the Crown case; only two (Professor Fitzpatrick and Dr Norrie) were not admissible against KG at all. Of JG's evidence, only WG's conduct as comprehended by counts 1-10 (incidents 4-7 above) and his physical violence and use of tools in the shed and the threats made by him were not admissible against KG at all. Similarly, there were only limited parts of AA's evidence which were not admissible against KG.
While KG has emphasised the significance of the evidence that was not admitted against her, no analysis of the balance of the evidence in the trial that was admitted against both of the accused was ventured at the hearing of the appeal or meaningfully addressed in the written submissions.
I would dismiss grounds 1 and 2 of the appeal. I would also dismiss the third ground of appeal which complains that there ought to have been a separate summing up, separate directions and separate verdicts and that the failure to structure the summing up in that way has been productive of a miscarriage of justice for the following reasons.
The question as to how the summing up should be structured was ventilated at a number of stages during the trial. On 28 April 2016 (Day 20), the following exchange occurred:
CROWN PROSECUTOR: Does your Honour intend to sum up separately in relation to each?
HER HONOUR: There will be certain directions relevant to both, general directions, but there will be a document for one accused with elements and a completely separate document for the other accused with elements and the elements will be separated into those admissible against one accused in his or her own folder and then a common folder for common exhibits.
IN THE PRESENCE OF the accused [WG]
HER HONOUR: Other than that, I wasn't proposing to do a [WG] summing-up, sending the jury out on those counts, then a KG summing-up after verdicts had been returned and do it completely separately, unless I am asked to.
CROWN PROSECUTOR: Yes, your Honour.
Later her Honour added:
Ms Crown, to the extent that I propose will separating the summing-up was definitely having separate elements documents, in which I identify every page reference for particular counts and the separate exhibit folders, but I wasn't proposing doing two completely separate summings-up.
At the end of that day her Honour said the following:
Ms Crown, in relation to the question you asked as to whether there would be separate summings-up, I'm aware as to what the Court of Criminal Appeal said in the separate trial application, that it may be desirable, but I did not take that to mean they would be completely and wholly separate, but if anyone thinks they should be or there would be some unfairness occasioned by not doing it that way, I will consider doing it that way but there are obviously a lot of directions that are common to a criminal trial that would need to be given twice, and my understanding of what the Court of Criminal Appeal was meaning was it's obviously vitally important to keep separate, the counts are separate and individual, and that certain evidence is separate and individual, but the context as against [KG] is that the complainant is essentially saying, for example, when that count about, "This is what you have to do to please your father" count 48, "Dad's trying to be a good man and listen to him", and all that sort of thing, the context of much of the evidence is that she did have some idea, whilst the Crown isn't directly charging her with a criminal offence in that respect, there is evidence that [the complainant] gives against her father that puts into context the charges the Crown brings against [WG], and I wasn't going to highlight that in the summing-up, but it would be difficult I think, to completely separate the two summings-up, but if anything thinks I should, I will consider doing that and perhaps once the elements document is completed, that might go some way to allaying any concerns that there would be some unfairness occasioned by it being one summing-up but with two separate elements document. There's a fair way to go before then. 10 o'clock then tomorrow.
The issue arose again on 23 May 2016 (Day 35) where the following exchange occurred:
Towards the close of at least the more important aspects of the evidence, so at least KG has given her evidence if she is giving evidence, I have quite a lot of documents prepared by way of written directions that I will be giving you all to assist in regard to what is still at the forefront of my mind of what the Court of Criminal Appeal said about the possible utilities of separate summing-ups, and while there will be separate elements documents, there is a reasonable overlap in the evidence and directions required for each and I can see why they might have thought that was useful as a general concept, but the actual detail of the evidence, I am not sure that that is such a good idea, so some thought to that would be good, please. As well as, I'm not sure, I think they were suggesting there would literally be a summing-up, send the jury out to deliberate on the WG counts, come back, start a whole new summing-up on KG and I really am not sure this is the kind of case that calls for that.
I know in that Darwiche case there were a number of murders that different accused weren't charged with.
CROWN PROSECUTOR: Yes.
HER HONOUR: And there are counts here that quite obviously KG isn't charged with and counts that WG isn't charged with, and I think the jury well appreciates that. I just don't know that there is that much gained by completely separate summing ups and deliberations, but if you could think about that?
O'SULLIVAN: Yes.
…
IN THE PRESENCE OF THE ACCUSED [WG]
O'SULLIVAN: Your Honour, my tentative view is that I would not be asking your Honour for separate summings-up, nor separate deliberations.
HER HONOUR: Yes.
Could you have a think about that as well, Mr Chapple?
CHAPPLE: I should say my tentative view is the opposite. One of the exercises that concerned me at the start of the case was actually before we even went to trial and I was trying to get across the case, was trying to work out at the start, the indictment and then once I did that, the difference in the number of counts was dramatic. There's 16 for KG and we are well into the 70s for WG. The sheer volume difference there is quite, I think, significant so far as jury deliberations are concerned. It seemed to me as I was looking at it, that it was the sort of case that cried out for separate summings-up and separate deliberations. The number of counts for KG is large in itself, it is 16, but it is a very lopsided case, that is my submission, and I would have thought the jury would benefit.
I take no issue, of course, that there has been a very ordered way in going through and indicating to the jury what is admissible against which person, which accused, but I would really like to think about that because it seems a practical suggestion to me.
HER HONOUR: Once I hand down these documents which, as I say, do certainly split the elements for one completely from the other, and also the directions that are common to both and the way I have attempted to divide up separate directions that don't apply to one or the other, we can revisit it.
CHAPPLE: Yes.
HER HONOUR: But it needs thinking about it in the meantime. Okay.
CHAPPLE: There is one matter that I would want to add. There is also this element of violence that differentiates these cases. I am speaking, of course, of the tools. I think, with respect, when one thinks about that there really are - I have read the ruling from the Court of Criminal Appeal and I understand, I went through Judge Christie's comments as well, but our submission really is that these are things that really get into people's minds on juries. We would think it would be less than human if it didn't. I think that is an added matter that I would really like to give some thought to.
HER HONOUR: Yes.
CHAPPLE: Thank you, your Honour. I appreciate it is not the time.
HER HONOUR: Yes.
The issue was raised again on 7 June 2016:
HER HONOUR: Because I picked some examples from what the Crown had highlighted because otherwise, if I have to identify them, it just reinforces them with the view I took.
And Mr Chapple, I haven't raised this, but perhaps it is obvious by now that I was proposing only giving one summing-up, not two.
CHAPPLE: Yes.
HER HONOUR: And I hadn't re-mentioned that since we last discussed it.
CHAPPLE: You did mention it. I took it that my submissions had fallen on unfertile ground.
HER HONOUR: They had and I did consider at length and I have read what the CCA had said in dealing with the separate trial application and now because each has given evidence, I think that it can be done in one summing-up and, quite clearly, delineate the cases the Crown runs against both accused and fairly have the jury understand what evidence is and is not admissible, one against the other.
CHAPPLE: I meant no sarcasm when I said those words, just the reality. Your Honour did mention it the other day and I took it on board.
There the matter rested. In light of the matters that were raised with KG's trial counsel by the trial judge, including counsel's exposure to the evidence at trial, he did not ultimately seek to persuade her Honour that a separate summing up was called for or that there was a need to take separate verdicts. In my view, to continue to press ground 3 of the appeal without developing how the failure to deliver a separate summing up was productive of a miscarriage of justice is to reinforce my view that ground 3 is untenable.
The various categories of photograph were tendered on the application for their admission as tendency evidence and, at counsel's urging, closely considered by the trial judge. A statement from the commercial photographer who took the photographs in Exhibit 43 was tendered, together with a statement from each of JG and AA as to the circumstances in which the photographs were taken.
As to the circumstances in which the photographs in Exhibit 43 were taken her Honour made the following findings of fact:
1. KG caused sexualised photographs to be taken of her three daughters, including on occasions where she placed herself into the image, also in a sexualised way, by engaging a commercial photographer.
2. KG told her daughter AA that the photographs were to be used in promoting her and her sisters as models and told JG that the photographs would be "nature shots".
3. KG told a commercial photographer that the photographs were being taken to make a calendar for fundraising and that both she and her daughters were happy to be photographed naked.
4. No 2008 calendar was produced.
5. The photographer cropped many of the images that showed a breast or pubic area.
6. KG took possession of the disc containing both the edited and unedited images.
In determining whether to admit the evidence, her Honour recognised that the significance or the importance of tendency evidence depends upon the nature of the fact or facts in issue to which the tendency is said to be relevant, and the significance (or importance) the evidence may have, taken alone or in the context of other evidence to be adduced, in establishing that fact or those facts in issue. She went on to say:
There can be no doubt that important facts in issue in the Crown's case against the accused KG will be the true nature of her relationship with one or more of her daughters. Was that relationship one in which, at all times, KG had a purely maternal interest in one or more of her daughters or was it one in which she had otherwise than a purely maternal interest in one or more of her daughters because she had, in particular, a sexual interest?
After taking into consideration the operation of s 97 of the Evidence Act, her Honour was satisfied that the nature of the images in what became Exhibit 43, in combination with the circumstances in which those photographs were taken (and the evidence that comprised Exhibit 42), was capable of demonstrating that KG had other than a maternal interest in her daughters and that in 2008 she had a sexual interest in one or more of them. Her Honour was also satisfied that the images were capable of informing the jury as to KG's state of mind and of informing them as to the nature of the indecent acts alleged against her, and whether acts which might otherwise be equivocal as to the essential element of indecency, had a sexual connotation or overtone.
Her Honour considered the balancing exercise required under s 101 of the Evidence Act as to whether the probative value of the evidence significantly outweighs its prejudicial effect as a "relatively easy issue to determine", principally because, as was submitted on KG's behalf, the defence submission was that the photographs in both Exhibits 42 and 43 were "nature images" and that they have nothing whatsoever to do with any sexual interest in her children KG was alleged to have. As her Honour recognised, if the jury accepted that submission, or found it to be a reasonable possibility, they would disregard the photographs and, in that way, they would be without any prejudicial effect. On the other hand, if the jury accepted beyond reasonable doubt that the images were capable of demonstrating a sexual interest on KG's part, they were not prejudicial in the sense comprehended by s 101, where no danger of unfair prejudice had been identified and no identifiable risk that the photographs could be misused by the jury in any impermissible way.
Finally, in addressing the submissions advanced by KG's counsel that a "serious problem" would present by allowing the photographs in Exhibits 42 and 43 to be placed before the jury for tendency purposes in KG's trial when there were other photographs tendered against WG only (being the ten photographs in Exhibit 44 which were not admitted against KG), her Honour regarded that issue as capable of being addressed and dealt with by direction.
I note that the photographs in Exhibit 43, admitted against KG for tendency purposes, were also admitted in her trial for context purposes, that is, as capable of informing the nature of the relationship between KG and her daughters. There admission on that basis was addressed by her Honour as follows:
Standing alone, the allegations made against the accused KG, including allegations that a mother would show one or more of her daughters how to masturbate, that a mother would show one or more of her daughters how to sexually please their father, and/or that a mother would commit indecent and sexual acts upon one or more of her daughters, might sound incredible or defy belief to a jury. However, [Exhibit 43] and the evidence relating to its circumstances is information that is capable of explaining something not readily understood by a jury, and may therefore, be relevant because it bears on the assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. (See HML v The Queen [2008] HCA 16 at paras 2 to 11; WFS v The Queen [2011] VSCA 347 at para 34; and KJS [2014] NSWCCA 27 at paras 32 to 41.)
The submission by trial counsel that the evidence should be excluded for context purposes under ss 135 and/or 137 of the Evidence Act was rejected. There was no challenge on the appeal to Exhibit 43 being admitted as context evidence.
On the appeal it was submitted that the reasoning of the trial judge was flawed in a number of specific respects:
1. The photographs show no more than parental interest in KG's daughters of whom she was proud.
2. "Saucy photographs" are frequently incorporated in a calendar and to promote various interest groups and, in this case, a 2005 calendar was in fact produced.
3. All the children were "handsome" and involved in "athletics and outdoor activity" thus rendering the explanation that the photographs were possibly to be used if they wished to pursue a modelling career "understandable and reasonable".
4. The photographs do not show or suggest any "sinister conduct" or "attitudes" on the part of KG.
5. A professional photographer was engaged, consistent with KG's wish for the photographs to be of "good quality, usable in the calendar or for a modelling portfolio".
Analysed in that way, counsel then posed the following rhetorical question:
How could these photographs show sexual interest in the children any more than the many photographs taken of their children on a public beach show a sexual interest? Every day in summer parents, friends and relatives take photographs of other people - including children - in conditions of undress or semi-undress. Are these to be taken to represent a tendency to have a sexual interest in the person photographed?
As it was pointed out by the Crown, correctly in my view, the submission that there is or might be another (innocent) interpretation of the photographs, or that KG's state of mind in commissioning the photographs was purely maternal, is to fail to ask the correct question. It was for the trial judge to undertake the assessment of the probative value of the evidence. In undertaking that assessment, the first question was whether the evidence, taken at its highest, had the capacity rationally to affect the probability of the existence of a fact in issue (s 55 of the Evidence Act) and, if so, to then assess the probative value of the evidence, having regard to the facts in issue at trial and the tendency contended for by the Crown (s 97 of the Evidence Act). It was not for the trial judge to undertake an assessment of the actual probative value of the evidence at the point of admissibility, even less so whether the evidence actually showed the tendency contended for by the Crown, a matter about which the jury had to be satisfied beyond reasonable doubt before they could use the evidence for tendency purposes: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51].
The trial judge's approach to the question of admissibility was in accordance with that approach. I would dismiss ground 4 of the appeal on that basis alone.
It is necessary, however, to say something of a passage in the written submissions of KG's counsel extracted from the High Court's decision in The Queen v Bauer (2018) 271 A Crim R 558; [2018] HCA 40 at [48], said to be authority for the proposition that the admissibility as tendency evidence is limited to either acts which are themselves criminal, or acts otherwise probative of the existence of an accused having a sexual interest in a complainant which the accused then acted upon:
[48] Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes [(2017) 92 ALJR 52 at 68-69 [57]-[58], [62]-[64] per Kiefel CJ, Bell, Keane and Edelman JJ].
In reliance upon this passage, counsel submitted that in arranging for photographs to be taken of herself and her children, KG committed no criminal act; neither was that conduct probative of her having a sexual interest in her daughters upon which she then acted. At best, it was submitted, the photographs were neutral, showing nothing more than a "relaxed family relationship around issues of nudity as distinct from sexual interest headed in the direction of the commission of a criminal offence".
On a proper reading, the passage cited from Bauer did not impose a limitation on the use of tendency evidence as suggested by counsel. Rather, it supplies a legal rationale for the use of tendency evidence. Paragraph 49 of the judgment makes that clear:
As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts. In HML, Kiefel J (as her Honour then was) explained its significance thus:
"'[R]elationship evidence' refers to all the conduct of a sexual kind that has taken place between the accused and the complainant. It encompasses sexual conduct which is an offence, often referred to as 'uncharged acts', and misconduct which may not be an offence. …
Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the 'guilty passion' for, the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged. (emphasis added; footnotes omitted)
While the photographs did not constitute a sexual act, it was open to the jury to regard KG's conduct in commissioning photographs of a sexualised nature as capable of showing a tendency to have a sexual interest in her children.
Ultimately, of course, whether the photographs were capable of exposing a tendency of that kind was a matter for the jury. To the extent that the jury accepted that the photographs were innocently explained by KG in her evidence, it follows they were deprived of the tendency for which the Crown contended and, if that were the case, the evidence would, in accordance with her Honour's directions, be put to one side by the jury in considering whether the Crown had proved KG's guilt on those counts to which the tendency evidence was said to be available. KG gave the following evidence in cross-examination by the Crown:
Q. [W]ould you agree that it's an unusual thing for a mother to do, to have nude photographs taken with her children in an age range of 16 to 20?
A. No, not in this ‑ it is an unusual thing, but we were a very unusual family and this was another extension of who and what we were.
I would dismiss ground 4.
In my view, the forensic decision made by trial counsel not to call Dr Roberts is not reviewable here under the guise of a claim that his evidence is either new or fresh. Even if it is conceivable that other decisions may have been made by counsel, there is nothing unfair and there will be no miscarriage in holding KG to forensic decisions made by her trial counsel: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63].
This ground of appeal is dismissed.
There was no allegation that KG physically or verbally assaulted JG or her other children.
JG also gave evidence of her mother's sexual mistreatment of her, on occasions in the presence of her father and on other occasions not. She said her mother did not intervene when her father was physically and verbally abusive towards her. When cross-examined by counsel for WG, she said that she did not tell her mother that her father was sexually abusing her because she believed her mother already knew what was happening to her since, from age 8, her mother had spoken to her about ways of sexually pleasing her father.
JG was cross-examined at length by counsel for each of the accused. She denied fabricating any aspect of her evidence.
The evidence of the finding of the buried tools and underpants was, in my view, compelling evidence relied upon by the Crown at trial not only as evidence supportive of JG's credibility generally but also to meet the accused's case that JG had buried the tools after her complaint to police to support her false incrimination of her father and, by implication, the false incrimination of her mother.
On the appeal it was submitted on WG's behalf, as had been submitted on his behalf at trial, that JG's account of having her vagina penetrated with tools of varying shapes and sizes on multiple occasions in circumstances where she was not known to have presented with injuries to her genitalia, and where there was no corroborating medical evidence to support her account of being subjected to repeated and violent penetrative sexual assaults over many years, her evidence was so wholly incredible as to justify the jury having a reasonable doubt not only as to WG's guilt on those counts which alleged the use of tools, but all counts alleging the sexual or physical abuse of his daughter. That issue surfaced on the hearing of the appeal as the dominant basis for this Court finding that the verdicts were unreasonable and cannot be supported by the evidence and that the convictions on all counts against both WG and KG should be quashed.
A large number of counts on the indictment were alleged to have occurred in the course of the same incident. On some occasions the incident was referable to a nominated date which JG was able to appoint referable to a surrounding event, and on other occasions referable to a date range sometimes extending over many months in the course of a given year.
In my analysis, there were 45 separate assaultive episodes or incidents, of which 40 involved WG as the sole perpetrator of sexual and physical violence and 14 where KG was the sole perpetrator of sexual abuse. On one occasion (incident 22) they were involved in the same assaultive episode.
After the incident at Lismore in January 2011, an apprehended violence order was applied for by police on her behalf. The hearing of the application was scheduled for November 2011.
JG gave evidence that she had no contact with her father after January 2011 but that in a telephone call with her mother before the scheduled date for the hearing of the application for an apprehended violence order she was told to drop it as it was "family business".
Finally, JG said her maternal grandmother, Ms Achilles, was aware of WG's abuse of her although she could not recall specifically speaking to her. Ms Achilles gave evidence that after JG had been to a camp at Falls Creek her daughter KG and granddaughter JG stayed with her. She said one night JG was very disturbed and scared and the next morning said she wanted to go to the clinic where she felt safe. After she was discharged from the clinic she told her grandmother that she had to bring WG coffee each morning whilst he was naked. Ms Achilles said JG started to cry and she told her not to say any more.
Ms Achilles also gave evidence of an occasion sometime in 2000 when her daughter's family was staying with her for the weekend. She said she walked upstairs towards the loft where she heard her granddaughters giggling whilst giving WG a massage, and saw WG was naked with a "huge erection". She said he looked at her but she said nothing. She did not speak with KG about the incident but did speak with her other daughter. In cross-examination by WG's counsel she rejected the suggestion that this incident never occurred. She also gave evidence in chief of witnessing an incident when AA and CG were very young when WG responded violently when they fell off their bikes. He picked them up and shook them violently, holding one child in each hand and banging them together like "two objects". Ms Achilles said she raised the issue with her daughter KG who said in response "the girls know [he] is tired, they know how to behave". In cross-examination by KG's counsel she rejected the suggestion that she had never spoken to her daughter about seeing WG knocking the children's heads together and rejected the suggestion put to her that the loft incident had not occurred.
Ms Achilles also gave evidence of overhearing a conversation between JG and her mother (sometime after the occasion when JG intervened when her father was hitting her mother and before she was admitted to the Richmond Clinic) when JG was asking her mother to leave her father.
There was no complaint evidence relied upon by the Crown in the case against KG. JG gave evidence that the first person she told about her mother's indecent touching of her and the incident where she was sexually abused by both parents was her doctor before providing her police statement in 2011.
AA then told WG that he had his fingers inside her and he replied, "I'm sorry you know, I never like, I don't even remember that, you know maybe I've blocked things out ... but I'm sorry". AA said, "What about the time that I walked in and CG was screaming because you put her hand on your penis". WG replied, "You weren't in the house when that incident happened". AA said to WG, "I saw you massage JG and CG the same way, I always used to come in and yell at you and I saw where your hand was". WG replied, "Yeah well I can apologise that's it, I've acted inappropriately and I didn't realise". AA said to WG, "You sexually aroused me". WG replied, "But I didn't know" and "I know but how do I fix it".
AA then said to WG, "I think JG might be telling the truth about some of her accusations. I believe her". WG replied, "OK there might be elements of truth". WG said, "I never touched JG inappropriately. I slapped her once on the Gold Coast and I threw her in the bushes once". AA said, "I believe you sexually harassed me". WG replied, "Yeah unintentionally". AA said, "I saw it with JG" and WG replied, "Yeah". AA said, "I saw it with CG and I have it with my own eyes". WG said, "I've gone through sexual assault counsellors as well to talk to them". AA said, "I'm telling you to your face you touching me when I was so young has fucked me up". WG replied, "OK fair enough so I, live with that I have to live with that" and "I don't want to be punished for it anymore". WG said, "I agree back then there might have been something in my head that was sick I agree a hundred per cent I don't disagree with you I think I had an issue, I had a problem".
Two days later a telephone conversation was recorded between WG and KG where AA's allegation that she heard her sister CG screaming because he put her hand on his penis was discussed, in apparent recognition of the fact that it occurred, but that AA was mistaken about when it occurred and that they resolved that they would ask CG. In the following recorded phone call KG says, "I spoken to [CG] and there was no way [AA] was near you at that point. So just to relieve you …".
The directions of the trial judge as to the use they could make of this evidence were not the subject of challenge on the appeal. Importantly, the trial judge directed the jury that the assessment of JG's credibility was a matter for them and that they ought not automatically reason from Dr Hoey-Thompson's diagnoses and opinion as to the causes of trauma that the allegations of serialised abuse which underpinned her diagnoses was evidence that JG was telling the truth.
JG's other sister, CG, was not called as a Crown witness. She was called as a witness in KG's case. Her evidence (including her cross-examination by the Crown) is summarised in the judgment of the Chief Justice at [849]-[891]. In short, she denied being indecently assaulted by her mother or witnessing any sexual or other abuse of either of her sisters by either of her parents. CG said she had never seen her mother drunk and that her mother never spoke with her and her sisters about sex. She denied being inappropriately massaged by her father.
Insofar as the allegation of indecently assaulting his daughters in the context of or on the pretext of massaging them, WG said when massaging JG (which was rare because she did not need massage) there were always others in the vicinity and that he never inserted his finger in or near the vaginas of his daughters while massaging them. He said none of his children massaged him but that he did teach them how to massage each other's legs.
When WG was asked to explain his responses to AA in the recorded telephone conversation in February 2012, in particular that he had "overstepped the mark", he said he was referring to blurring the boundaries between being a coach and a father, and when he repeatedly apologised to her he was apologising for his absence as a father and for any feelings she may have had that the massages were inappropriate. He claimed that he had no appreciation that the massages were inappropriate and was surprised AA would have had those feelings without him being aware of it.
WG said that he rarely saw JG after she was aged about five because she was always in bed when he came home from work and that it was only on occasional weekends and some school holidays that he saw her.
WG did not call any evidence.
Counsel also reminded the jury that there were no scars identified by Dr Norrie in any way consistent with scissors being used to cut JG's vagina or as a result of being stabbed with a nail.
Counsel invited the jury to question Dr Norrie's expertise in examining a post-pubescent female to determine whether a hymenal laceration was sustained pre-puberty, when Dr Norrie was unable to provide any research data to support the opinion she expressed. Counsel also reminded the jury that "blunt force injury" could, as Dr Norrie accepted, have been occasioned by "a finger".
Counsel also urged the jury to accept that JG had a demonstrated ability for lying and falsifying injuries given the incident at Falls Creek in 2010 and having admitted in her evidence that she was lying to counsellors at the Mental Health Unit at the Richmond Clinic when she denied having been sexually assaulted by her father.
Insofar as the incidents when JG was in Hobart and Canberra, KG gave evidence that JG told her that she had accidentally hit her head and that Ms Frey was "over exaggerating" and that when JG returned home she "brushed off" the anxiety that had interfered with her travel home from Hobart.
She said the trip to Falls Creek was a week after JG's return from Doha, and after her daughter explained to her what had happened in Doha KG found her daughter in "a foetal position, whimpering" on the couch at her mother's place after which she decided to take her to the Adolescent Mental Health ward at Richmond where she stayed for six months.
KG also gave evidence that she never drank to excess and had never been drunk. She explained her comment to her husband in the intercepted telephone call of 4 March 2012, "I drink too much and it's 'cause of her", and her husband's comment, "You know the only reason you drink years ago was because of her", was meant as sarcasm.
KG gave evidence that she was of good character and that she had raised money for a number of charitable causes. KG also called evidence of good character. KG also called her daughter CG whose evidence I have referred to above.
It was the Crown case that JG was the focus of WG's sexual obsession. Being the youngest of his three daughters and, as the evidence suggested, "unassuming" even timid compared to her sisters, the Crown submitted that she was less likely to stand up to him, or to contradict or defy him. The Crown submitted that from a young age JG became conditioned to accept her father's sexual and physical abuse of her, and to accept that withstanding the pain and deprivation associated with that abuse was designed to make her "strong" and "tough".
Notwithstanding his fixation on JG, it was the Crown case that WG also had a sexual interest in his other two daughters which he satisfied opportunistically when massaging them or when he had them "massage" him.
The Crown submitted that quite apart from the unrelenting physical and sexual oppression JG was subjected to by her father from age five, she was also terrified of him and believed that his threats to kill her were real. The Crown submitted that in those circumstances it is not surprising that JG did not complain to her mother, or to anyone else for that matter (including her sisters), until she was a teenager by which time she had come to the progressive realisation that her father's treatment of her was wrong.
The following extract of JG's cross-examination by counsel for WG was relied upon by the Crown as exemplifying why she delayed making complaint:
Q. I mean, in relation to the evidence that you have given in relation to your father, you had plenty of opportunity to tell somebody about it; would you agree with that?
A. No, I don't agree with that. I mean I had the opportunity, but I was in complete and utter fear of my father. That was not a choice, that was never a choice to tell anybody.
Q. Do you say that you didn't tell anybody because he told you not to or simply because you were in fear of him?
A. Because he threatened to kill me if I told anybody, that's why.
Q. And is that why you didn't tell anybody, because he threatened to kill you if you told anybody?
A. I knew what was going to happen to me if I did and I believed everything that came out of Dad's mouth.
Q. Because, according to your evidence, the first time, if I can put it that way, that there was a threat to kill, should you tell anybody, was towards the end of August or early September of the year 2006?
A. That's correct, but I was also very young. I didn't remember anything from those events, including everything that Dad said to me, but I knew from an early age I couldn't tell anybody and I also thought for a long time that it was normal.
Q. In relation to thinking for a long time that it was normal, are you referring to the tools incidents, if I can call it that?
A. No, I'm referring to Dad coming into my room and sexually assaulting me.
Q. And in relation to massages, did you think that was normal?
A. Yes, I thought that was normal until Doha.
Q. Did you think that both the massages that you have given evidence about in relation to your father and him coming into your room was normal? You thought that was normal?
A. Yes, I thought the massages wasn't really a big deal but I now know that it was still bad.
Q. Did you think that the tools - and you know what I'm talking about?
A. Yes.
Q. Did you think that was normal?
A. I thought that it was Dad's right to do that and I thought that he was doing that to me because I had done something wrong so it didn't matter whether I thought it was normal or not because I listened to everything that Dad said. He was the boss and that's just how it was.
Q. And up until the time that you went to Doha, which was December 2009, were you of the belief that in relation to the tools incidents that that was occurring as a form of punishment?
A. Yes, I did, a form of punishment going back to my races, that I wasn't tough enough and that I was weak.
Q. And you don't suggest, do you, that what occurred to you in relation to the tools improved your performance, do you?
A. No, but you don't quite understand what I'm saying when it comes to -racing wasn't just about training, it wasn't just about running. The fact that you had to get out there and all those races that we went over yesterday, that wasn't just about running, that wasn't just about going out and running, it took a lot of mental ability to be able to push through the pain, to be able to have this barrier that I could push through that pain, to have a blockage of pain and yes, I did believe that what Dad was doing to me with the tools was in fact because I was being punished and I believed that all the way up until the last time he did it apart - sorry, before Doha.
Q. If what you're saying is true, why couldn't you just say to your father, for example, "Look, if you stop using these tools I'll be able to run faster"?
A. Because you don't quite understand that I never - nobody was ever allowed to question Dad. What - I believed that what he was doing to me was to make me tougher.
The Crown also submitted that JG was conditioned to accept her father's abuse because her mother had instilled in her a belief that he was acting in her best interests, even to the extent of being taken to the shed and left there for extended periods, including overnight. It was also the Crown case that although from at least 2000, when JG was aged eight, KG knew that her husband was having sexual intercourse with her daughter, there was no evidence that KG knew WG used implements or tools to have sexual intercourse with JG and no direct evidence she was aware that her daughter had been injured in the process.
It was the Crown case that KG's sexual mistreatment of JG was in part motivated to ensure that JG satisfied her husband sexually as well as in pursuit of her own sexual gratification. The Crown submitted that her sexual interest in JG and her other daughters was obvious from the array of nude or semi-nude photographs available to the jury as tendency evidence in considering each of the counts on the indictment where she was alleged to have indecently assaulted her daughters, inclusive of counts 13 and 38 which alleged sexual intercourse with JG.
To the extent that WG claimed that he was elsewhere at the time of the offending the subject of particular counts on the indictment (for example, counts 14, 19, 26-29 and 85-86), it was the Crown case that this was either contradicted by other evidence (including immigration records in the case of some counts) or simply not supported by the evidence such as to raise any reasonable doubt in respect of those counts where an alibi was asserted. (I note there is no complaint that the Crown failed to assume the obligation in her closing address of disproving alibi beyond reasonable doubt or that the trial judge's directions on alibi were in any way defective.)
The Crown further submitted that it would be open to the jury to reason to the conclusion that KG had given evidence knowingly supporting her husband's false alibis. In particular, her claim to police that she had no contact with her daughter on 13 October 2011 (claiming to have had no contact with her for the previous 12 months) was false, as was her assertion to police that her daughter's account of being detained and assaulted that day by WG in her presence "was a blatant lie … Completely fabricated", a position she maintained at trial. It was the Crown case that this aspect of KG's evidence completely undermined her credibility and that her evidence denying that she sexually abused her daughters or had any knowledge of her husband's sexual abuse of them (in particular his abuse of JG) should be rejected.
In proof of each count on the indictment against each of the accused, the Crown relied upon a considerable body of objective evidence of surrounding sporting events, including interstate travel, or family gatherings or her mother's visits to "the pub" as giving context and credibility to JG's memory of the occasions when her parents, particularly her father, sexually and physically abused her, including but not limited to when he was crossed, contradicted or his expectations of her were not met.
In support of JG's credibility generally, the Crown placed considerable reliance upon the finding of the buried tools and the child's underpants and the desperate words scratched into the piece of wood in childhood script, replete with spelling errors. The Crown also relied on the entries in JG's 2006 and 2007 diary, entries which, in the Crown's submission, carried all of the indicia of contemporaneity with the regime of terror JG lived within.
As already emphasised above, the Crown relied upon Dr Norrie's evidence as to the observable injuries to JG's hymenal tissue in support of the Crown case that JG had been vaginally penetrated and repeatedly, with force, before puberty. In addition to the fact that there were four discrete sites of injury to the hymen (being a tear to the tissue at 5 o'clock and 7 o'clock, on a notional clock face, with no tissue between those two notional positions, and a complete absence of any tissue between 7 o'clock and 8 o'clock and little or no tissue between 8 o'clock and 9 o'clock), the Crown relied upon the fact that the mucosa which lines the vaginal walls has a rich source of blood which assists with healing when the tissue is torn and that, unlike skin elsewhere in the body, the mucosa around the vagina does not scar readily (Dr Crehan gave similar evidence). The Crown also relied upon Dr Norrie's evidence that heavy bleeding from an injury inflicted to the vaginal mucosa would have assisted in preventing the onset of infection, as would washing the site of injury.
The Crown also relied upon the medical evidence of demonstrable injuries to JG's face, torso and legs in support of the offences charged as counts 84 and 85 on the indictment.
In her closing address, the Crown submitted that no weight should be given to what the Crown assumed would be the submission advanced by defence counsel in their closing addresses to the effect that JG had deliberately constructed false and damning evidence against her parents. The Crown submitted the jury would reject the submission that JG had fabricated the graphic descriptions of her father's demands for fellatio and the multiple methods he used to have sexual intercourse with her, or that she had fabricated the graphic description of her mother's sexual mistreatment of her and her mother's indecent assaults of her and her sisters, as they would the submission that AA had given untruthful evidence of those assaults or her father's sexual abuse of her.
The Crown drew particular attention to the conduct of both of the accused the subject of incident 22 (as I have identified it for the purposes of this judgment). The Crown submitted that JG's evidence had what she described as the "ring of truth" in her description of that incident, including JG's graphic account of vomiting. It is useful to extract the Crown's submission in full:
First of all she had to suck her father's penis until he told her to stop and then her father told her that she had to touch her mother and she remembers that he just said, "Touch her, touch her down there" and [the complainant] initially didn't know what he meant and then he indicated and so she started to touch the outside of her mother's vagina and was rubbing it and she remembers her mother was lying on the bed on her back. She said she was laughing and she could smell alcohol on her breath. Her father told her she had to lie down, to pull up her legs, to separate them, and when she did that her mother started touching her vagina. She said when she did that, she felt her insert a finger inside her vagina and was moving her finger in and out of her vagina. Her father then said, "Okay, it's your turn to put your mouth down there". She said she didn't understand and said to him, "What do you mean?" Her evidence was this:
"Q. You asked him what he meant?
A Yes.
Q. Do you remember what he had said before you asked him that? So he said something to you and you didn't know what he meant?
A. Before he said that, he said '[the complainant], it's your turn to use your mouth' and then after I asked him what he meant by that, he said to use my mouth, to use my mouth down there."
And then she knew he was referring to her mother's vagina. She was then asked, "How were you feeling at this point?" She said:
"I was feeling sick. I really didn't want to do it but I was just really terrified of what dad might do if I didn't do it."
Her hesitation meant that her father said "do it", so then he she did, she moved her over to her mother and she put her mouth on her mother's vagina and used her tongue and she said she instantly felt sick and like she was going to vomit and she was unable to hold it down. Again, members of the jury, it's entirely a matter for you, you might think that despite what you might hope is something that wouldn't happen, it had the ring of truth in it, that being forced to do an act like that, to lick your mother's vagina, that she would be sick and she was sick, she vomited.
Her father came around and she said he was really angry and he said that she had to clean it up and that "I was disgusting", so her father was calling her disgusting, and that she had to eat it. She said her mother was just lying there at that time. She didn't remember her mother saying or doing anything. So [the complainant] got off the bed, she got down on her knees and put her head where she had vomited and she said when she got near her vomit, "It touched my mouth and I just started to eat it" and she threw up again. She said, "Every time I tried to do it I just kept throwing up". She remembers her father telling her to get out and go to bed. She got up, she walked past the bed and went to bed.
These are not acts that anyone, let alone [JG], could make up, members of the jury.
Insofar as concerns the recorded conversation between AA and her father on 26 February 2012 during the course of the police investigation, it was the Crown's ultimate submission to the jury that this was a failed attempt by him to make qualified admissions to sexual and physical abuse of AA and JG and then to apologise, effectively retreating from the import of his admissions at a time when he knew there was a police investigation into JG's allegations. The Crown submitted that to deny at his trial that he was making any admissions at all, but rather was simply trying to shut AA's conversation down, was another failed attempt to retreat from the impact of admissions he made at a time when he was not aware he was being recorded.
The Crown dealt with CG's evidence as a witness called in KG's case, inter alia, by reminding the jury that she gave evidence that not only was she prepared to interfere with the processes of the court and to stop JG from giving evidence, but that she agreed that she threatened her not to give evidence by agreeing that she said the words, "You have gone too far, you have one choice and that is to drop the allegations or wind up dead". (The jury was also informed that CG was charged and pleaded guilty to an offence comprehended by that conduct.)
In my view, Dr Hoey-Thompson's evidence also adequately addresses the second feature of JG's evidence said by counsel to support the proposition that each of the verdicts returned by the jury was unreasonable or unsupported by the evidence, namely that it is "contrary to human experience" for a person to have a genuine detailed memory of a very large number of incidents dating to childhood, a proposition said to be exemplified by her claim to have recalled the colour of her father's socks when he sexually assaulted her at age five (count 5, incident 3). It is not clear from counsel's submissions the basis upon which an appeal to "human experience" is made. It was certainly not the subject of any evidence at trial and would not be a matter I would be prepared to take judicial notice of had that submission been advanced on the appeal, and it was not.
In my view, it was open to the jury to consider JG's memory of the colour of her father's socks as she was kneeling in front of him complying with his command that she fellate him as a compelling indication of an actual memory of the incident, and therefore supportive of her credibility, rather than a figment of her imagination.
The following extract from her evidence supports that finding:
Q: was there anything that you noticed particularly about what your father was wearing that day.
A: Uum, yeah, he was wearing red socks, his working socks. I remember looking down that way at his feet. I didn't want to look at him, his face.
JG's allied memory, after being left in the shed and returning to the house, was her mother making lunch and saying nothing to her is also an indication of an actual memory of the incident.
Additionally, as emphasised in the Crown's submissions, the detail that JG was able to provide in her evidence of serialised sexual abuse by her father over many years, needs to be understood in the context of her being able to anchor the incidents to a particular memory, for example, the birth of her brother (counts 1-3); the start of a new school year (counts 26-29); Father's day (count 24); and a succession of particular athletics events to cite a few examples. Additionally, again as the Crown emphasised in its submissions, JG's statement to police which, it must be assumed included the evidence that she would give at trial, was prepared in circumstances where she attended the police station on an average of two to three days a week between 20 October 2011 and 28 January 2012 as distinct from the detail in her account being volunteered for the first time in cross-examination when her veracity was under challenge.
I do not regard the fact that JG was a young woman aged 24 at the time of trial, and apparently capable of reconstructing her traumatic history, including by providing incidental details such as the colour of the father's socks in one particular incident, as detracting from her credibility.
I note that WG maintained that he was innocent of all charges and that he gave evidence at his trial to that effect (the eighth numbered feature of the evidence relied upon by counsel). I do not regard that fact as carrying substantial weight on the question whether the verdicts were unreasonable or unsupportable. That is not to say that his denials of any wrongdoing are irrelevant. They are simply part of the evidence the jury was entitled to consider in resolving whether the Crown had proved his guilt on each count beyond reasonable doubt.
Having reviewed WG's evidence and considering it through the prism of the jury's constitutional role as the tribunal of fact, in my view it was open to the jury to have rejected his evidence as unpersuasive and, in significant respects, deliberately false.
Neither am I persuaded that there is any force in the submission comprehended by the fifth numbered feature in counsel's written submissions that there was what was described as "little independent corroboration of the allegations". In my view, the jury was entitled to regard the evidence in the numbered different categories as strongly supportive of JG's credibility. I have already had occasion to refer to some of this evidence. For example, the items of physical evidence found during the execution of the search warrant. Not only was the finding of these items powerful in itself, the hypothesis advanced on WG's behalf at his trial, namely that in the midst of an acute deterioration in her mental health, JG returned to The Channon in 2010 or 2011 and set about deliberately burying items and scratching words (deliberately misspelling some of them) onto the wooden framework of the shed in preparation for a carefully and cynically fabricated account of sexual abuse by her father, was one the jury were entitled to reject.
Dr Norrie's evidence has also been extensively reviewed and does not need to be repeated. The submission advanced on the hearing of the appeal that it "simply beggars belief that the intensity and duration and extent of the injuries" JG gave evidence were inflicted during the course of the sexual assaults "would not be productive of physical evidence". On enquiry by the Court as to whether that submission was to be understood on the basis that it was not open to the jury to accept Dr Norrie's evidence that she was unsurprised or unperturbed at there being no physical evidence of scarring to the vaginal tissue, counsel submitted that this was another area where the "new evidence" of Dr Nittis was important. Given my agreement with the Chief Justice that the ground of appeal that concerns Dr Nittis has not been made out, the submission that the absence of physical injuries to JG's vagina "beggars belief" has to be understood in light of what I take to be counsel's implied acceptance that the jury were entitled to take Dr Norrie's evidence into consideration on the question whether, in the absence of physical injuries, JG's evidence as to the use of tools to penetrate her vagina was incredible and unworthy of acceptance, the submission advanced by WG's counsel at trial.
The medical evidence adduced by the Crown in support of the allegations the subject of counts 83 and 84 was also relied upon as supportive of JG's credibility. It was not limited to supporting the Crown case that the offending the subject of those counts had been proved beyond reasonable doubt but supportive of JG's credibility more generally as a witness of truth. The suggestion by WG's trial counsel that these injuries were also self-inflicted as part of JG's determination to falsely incriminate her father was also a submission the jury were entitled to reject, not only by applying their collective common sense, but by reason of the advantage they enjoyed having observed JG give her evidence over a period of weeks and having the opportunity to observe WG give his evidence, including under cross-examination by the Crown.
Finally, the jury had available to it the applicant's own admissions, or partial admissions, to physically and sexually abusing his daughters in the recorded conversation with AA in February 2012.
To the extent that the submission was maintained at the hearing of the appeal that the delay in JG's complaining of her father's sexual abuse operated to undermine her credibility, and therefore undermined the integrity of the jury's verdicts on all counts (feature numbered four in the written submissions), the jury were not only given directions as to how they should approach the issue of complaint, they were given detailed directions as to how the delay in complaint might impact upon their assessment of JG's credibility generally and/or their consideration of particular counts on the indictment. It is not suggested that those directions were inadequate either as a matter of fact or law or that they failed to alert the jury to how delay in complaint might impact upon their consideration of JG's evidence which was relied upon by the Crown in proof of each of the 73 offences.
Her Honour's directions on the issue of the delay warrant being set out in full:
The failure of [JG] and/or [AA] to tell police about what each alleges happened at the hands of the accused [WG] and the accused [KG], and in the case of [JG] what happened to her at the hands of [WG], soon after each alleged such conduct occurred, does not necessarily indicate that the allegations each separately made are false. The delay may indicate that the allegations are false if you are of the view, you would have expected a person in each of their circumstances, namely in the case of [JG] a person aged between five to 17 who alleges she was sexually and indecently assaulted by her father and at times by her mother, and a person in the case of [AA] aged 14 or 15 who alleges she was indecently assaulted by her mother, each accused person being in a position of authority over each girl, to have told someone immediately after such conduct happened or soon afterwards. If you would have expected a complaint in those circumstances, the delay on the part of each of them in making a timely complaint may indicate that the evidence each gave was false. Remember, of course, that as far as [JG] is concerned she did make relatively immediate complaint to police when she was older after the alleged commission of Counts 83 and 84, initially that complaint was of a physical assault and then she disclosed to police about an alleged sexual assault. [JG] also made relatively immediate complaint after Counts 85 and 86.
So on the one hand you may take into account the delay in complaint if you are of the view you would expect a person in each of their respective circumstances to have told someone immediately after such conduct happened or soon afterwards. On the other hand, there may be good reasons why a person such as [JG] and/or [AA] might have hesitated or delayed for many years in the making of a complaint to the police. To be more specific to this case, there may be good reasons why a person in the position that [JG] found herself in might not have made an immediate or timely complaint to the police or to some other adult or some trusted friend or person, chiropractor, running coach, about either what [KG] or [WG] were allegedly doing to her.
Likewise, to be more specific to this case, there may be good reasons why a person in the position [AA] found herself in might not have made an immediate or timely complaint to the police or some other adult or trusted person about what [KG] had done to her.
In considering this question as it pertains to [JG], you are entitled to consider the evidence [JG] gave as to why she delayed making complaint to police for so long. I shall take you to some of that evidence now.
[JG] gave evidence that on an occasion when her father was holding a bush knife or machete in his hand he told [JG] if she ever told anybody what happened down here he'd kill her, page 458, and it was no-one else's business and that he owned [JG], page 584.
[WG] allegedly told [JG] "no-one needs to know what went on at home" and that she knew what would happen to her if she told anyone, page 585. [WG] allegedly told [JG] she wasn't to have anything to do with Max or his family and if she did bad things would happen and she was to call Nicky and Tim and tell them that the reason she acted as she did at Falls Creek, I believe, was because of what had happened in Doha.
At page 597 [JG] stated that [WG] had told her she was not to see counsellors and she was to tell them she couldn't see them any more, and to say that the grazes on her legs seen in January 2011 had come from falling over at the farm where she then lived.
[JG] said that [KG] had told her that matters were family business only, page 599.
[JG] said that at the time of the detention alleged in Count 85 that [WG] said "I know what happens when I don't listen to him" and that he mentioned the shed and said that "the people that have helped you will pay for what you have done", page 602 and 640.
[JG] said at page 671 that the reason she started to speak out in later years was that the more time she spent away from home and around people that weren't hurting her that she could trust she then started to realise how wrong it was what her father had been doing to her, and it was at that point that she started to realise she could speak out, that she could trust these people and they could protect her.
She was asked why she had said nothing about her mother until she made her police statement and she stated at page 671 that when it came time to talk to the police she knew she couldn't pick and choose from her past and she said "I knew that everything I could recollect clearly I had to tell the police and Mum was a part of that and I knew I had to tell the police that".
It was put to her that she had plenty of opportunity to tell somebody about what had been happening and she said to Mr O'Sullivan "I disagree with that. I mean, I had the opportunity but I was in complete and utter fear of my father. That was not a choice. That was never a choice to tell anybody". She said "I knew what was going to happen to me if I did and I believed everything that came out of Dad's mouth". She said "He threatened to kill me if I told anybody". She also said "I was very young. I knew from an early age I couldn't tell anybody and I also thought for a long time it was normal".
She was asked could she have told her mother about what had happened and [JG] said "No, that would have made Dad angry and that was the last thing I wanted to do". That's page 862, 863.
[JG] was asked around the time of Doha whether she had realised by this point in time that what her father had allegedly been doing was normal, had she realised it was no longer normal and [JG] replied while she did know that:
"That didn't mean I didn't fear him. I feared for my life and I feared for what he might do to me. He was there every day still controlling me. He made me go to the police station and make that statement. You can't just flick somebody off that you have grown up with your whole life controlling you. It took me a very long time to come forward to pull away from them and that is why".
I should also refer, Dr Hoey-Thompson gave evidence about psychological strategies [JG] may have used to deal with the events that she alleged had occurred to her and, of course, in that regard remember what I said about the importance about not allowing too much weight to be given to expert opinion evidence, nor allowing it to be a substitute for your own independently formed opinions.
In relation to [AA], [AA] said that she did not realise until she went to the United States of America that the massages were inappropriate and it was around that time that she said to someone about what had been occurring.
It is entirely up to you as the judges of the facts to determine what you make of the evidence both [JG] and [AA] gave in this respect. In particular, it is entirely up to you to determine what you make of [JG]'s evidence regarding feelings of fear or powerlessness, fears of punishment, threats she not tell anyone, confusion and/or ignorance as to whether alleged conduct was wrong. It is a matter entirely for you as to whether her reaction in delaying any complaint to police to an authority figure or to a trusted friend, for example, has any significance when you come to assess the reliability of the evidence [JG] gave. And, of course, it is entirely up to you as the judges of the facts to determine what you make of the evidence [AA] gave regarding feelings of confusion or not knowing that what had allegedly occurred was wrong, ignorance as to whether alleged conduct was wrong. It is a matter for you whether her delay in make complaint to police or a trusted authoritarian figure has any significance when you come to assess the reliability of the evidence each gave.
Of course, it goes without saying if each has fabricated their evidence, then likewise they have fabricated the reasons they gave for the delay in their complaint. These are all matters for you to determine, of course.
Those directions draw together the evidence the Crown relied upon to put JG's delay in complaining into context, and the cases of each of the accused that she had not only given false evidence implicating both of them but had also given false evidence as to the reasons why she delayed making a complaint.
Having reviewed all the evidence bearing upon the issue of the delay in the context of her Honour's directions as to how the jury should deal with that issue when giving consideration to JG's credibility as a witness, I do not regard that feature of the trial, of itself or in combination with any other feature, as giving rise to a doubt the jury should have entertained in respect of WG's guilt on each of the 73 counts upon which they returned verdicts of guilty.
What remains to be considered are the submissions advanced on the hearing of the appeal, and dealt with by the Crown in his submissions in reply, directed to what was said to be an absence of any evidence supporting JG's claim that she was absent from the family home overnight, and sometimes over successive nights, after being physically and sexually abused by her father and left in the shed, or any support for her claim to have suffered physical injuries inflicted by him.
As pointed out in the Crown's submissions, in relation to the first occasion JG was taken to the shed and left there (count 5 on the indictment) she gave evidence that her father came and removed her from the shed and took her back to the house where she saw her mother making lunch. She said that her mother did not say anything to her or inquire about where she had been. In cross-examination by counsel for KG, when asked whether there was anything to indicate that her mother saw her on her return she said:
She looked at but there was no word said but … well dad was there. She didn't talk much in front of dad.
The Crown next took the Court to evidence concerning count 19 (the fifth occasion JG said she was left overnight in the shed). She gave the following evidence in examination in chief about that occasion:
Q. Did he do anything in relation to the door [to the shed]?
A. I remember hearing ‑ I remember he shut it and I remember hearing what I thought was a padlock, hearing him lock the door.
Q. Did you stay there that night or what happened?
A. Yes, I was in there that night and the next day, when it was light, Dad came back into the shed and I remember I went back up to the house with Dad and I remember seeing Mum up in the house and it must have been morning because I can remember the smell of the coffee in the house and I remember Mum gave me a hug in the lounge room but just a hug, we didn't talk about what happened the night before or anything like that. That's all I can remember.
In the Crown's submission, that evidence supports the proposition that it was not that JG's absence from the house, including overnight, was not noticed, or that her mother did not remark or make enquiries about where she had been (an attitude which was said to be contrary to proper parenting), but rather that KG was not concerned to enquire as to her daughter's whereabouts because she either actually knew where she was or assumed that she was with her husband (whether or not she knew of the fact or extent of his sexual abuse of her) and that she had no interest in pursuing the issue, either with her daughter or with her husband.
JG gave evidence under cross-examination to the same effect:
Q. Could I stay with the shed firstly please? When you say you told your mother you had been in the shed what do you mean by that?
A. Well, when she asked me, sometimes, sometimes and I can't specifically remember every time, but there were times that when I'd been in the shed that mum had asked me if I had been in the shed and I told her yes, I had been in the shed, but I never told her what dad did to me in the shed.
Q. Now can you give us an example?
A. Again, I can't specifically remember the times.
Q. And what are you suggesting, that she just said out of the blue to you --
A. No --
Q. Have you ever been --
A. There were times that I wasn't in my room, there were times when I wasn't in bed, so I guess mum was wondering where I was, just like [AA] and [CG] were asking me if I was at Fiona's. That is what I assume, I don't know.
Q. So do you say that your mother asked you had you been in the shed?
A. Yes. There were some - yes. I can't specifically remember the times that - but there were times that - there were times that I can't remember exactly what happened in the shed and I have already said that, like the times that in - I have spoken about, the times that I can clearly remember.
Q. And are you suggesting that your mother asked that of you when you were actually in the shed, but she wasn't --
A. No. No, when I was - after, when I was out.
Q. Right. How did the topic come up?
CROWN PROSECUTOR: Your Honour, I object. She can't recall the precise conversations but she can recall her mother asking her, "Have you been in the shed?"
HER HONOUR
Q. Can you remember any details, whether good details or less good details about how it would be that your mum might come to a point that she is asking you where you've been or had you been in the shed and you replying, "Yes", essentially?
A. It was usually later in the day when I'd come back up, so there were some times that she did ask me where I'd been. But again, the time that we spoke about earlier she didn't say anything.
Q. The time when she was making the sandwiches?
A. Yes, yes. She didn't say anything then.
The next reference to the evidence to which the Court was taken by the Crown concerns JG's evidence referable to counts 26 to 29 on the indictment (incident 17). JG gave evidence that after being released from the shed by her father after being confined there for two days she returned to the house. She said she remembered only seeing her younger brother in the house but on returning from the creek where she went to wash the blood from her legs she saw her mother and her two sisters returning from a run. She said she met them on the driveway. No one spoke to her then but later one of her sisters asked "How's Fiona?". She said she did not understand why she was being asked that question because she had not seen Fiona for some time.
The Crown also took the Court to the evidence of AA where she gave the following evidence:
Q. Now when you were growing up and living at The Channon were there times that you'd notice that [JG] was absent when you were at home?
A. Yes.
Q. And was that something that would happen regularly or frequently or not?
A. Frequently.
Q. And when she was absent from the house on those occasions that you can recall, did you know where she was?
A. No. I thought that she was at Fiona's house but there are a couple of times that Fiona would call and she wasn't there, so‑‑
Q. So there were a couple of occasions where Fiona would call, call where?
A. Our Channon home phone.
Q. And you said, "And she wasn't there", what do you mean by that?
A. So Fiona would call asking if [JG] could come over and play.
Q. And when you say, "She wouldn't be there", who wouldn't be there?
A. Well, [JG] wouldn't be at Fiona's, if Fiona was calling, so ‑
Q. Were they on occasions that you were told that [JG] was at Fiona's house?
A. That's correct. Sorry for the confusion.
Another reference to the transcript to which the Court was taken was taken concerned evidence also given by JG in chief as follows:
Q. Were there any occasions when you returned to the house where somebody, that is somebody in your family other than your father, spoke to you about where you'd been?
A. Yes, there was some times that one of my sisters or [my brother] would ask if I'd been in the garage or the shed and I would never answer to them, I'd ignore them. There was also other times that [AA] and [CG] would ask me how Fiona was. There was also times when Mum would ask me if I'd been in the shed and I'd tell her that I had been in the shed but I'd never tell her what would happen in there.
Q. Would she say anything about that, once you told her you'd been in the shed?
A. She'd just tell me that Dad's just trying to help me and that he's a good father.
Q. So when you said that your brother … or your sisters might ask you about the shed, what would they ask you?
A. They'd just ask me if ‑ it was more the garage, if I'd been in the garage, and I just would ignore them. I didn't really talk much with them anyway back then.
When in cross-examination it was suggested to her that she could have confided in her sisters that she was being abused by their father she gave the following evidence:
Q. Wouldn't you have just told your mother about what had happened?
A. No. That would have made Dad angry and that was the last thing that I wanted to do.
Q. What about your sisters, [AA] and [CG], couldn't you confide in them?
A. No, I didn't ‑ I hardly spoke to them.
Q. Well, you spent a significant amount of time with them, I suggest?
A. Yes, you've said that before and that was through training. [AA] and [CG] were close but I'm sure if you asked one of them ‑ well, probably not [CG] but I didn't ‑ I kept to myself a lot. Again, because I thought I was getting that punishment because I had done something wrong.
The Crown also took the Court to evidence given by JG as an indication of the active steps she took, in various ways, to avoid revealing that she was being abused in the shed, partly in response to WG's repeated threats that he would kill her if she told anyone what he was doing to her in the shed and partly out of embarrassment. After giving evidence of the assaults the subject of counts 68 to 70 on the indictment, JG gave the following evidence:
Q. And what happened after he started to do that, wee into your mouth?
A. He stopped and took his penis out of my mouth and put it back in his shorts, and I didn't want to swallow it and I remember him telling me to go back up to the house and to put some pants on because I still had my pants off because I'd left them off when I left the room with him the night before. I left the shed and dad went in a different direction and I went up, back up towards the house and when I knew he wasn't near me, I spat it out, the wee out of my mouth and I remember going, heading back up towards the house and I remember seeing mum and [CG] in the lounge area and I didn't want them to see me with no pants on, so I went back up the long way around to my bedroom.
The Crown also directed the court to the evidence of AA where she described her father's violence and physical mistreatment of her, including being locked in the garage and sustaining a broken nose when she refused to allow her father to massage her, in further support of the Crown case that JG's active attempts to conceal her mistreatment were responsive to a genuine belief her father would kill her were she to reveal it. AA also gave evidence that she told both her mother and her sister CG about her father's violent outburst resulting in a broken nose and that they both wanted her "to keep it very quiet".
I am well satisfied that the jury had available to it a large body of evidence, not limited to the evidence of JG, capable of meeting the submission advanced at trial and maintained on the appeal that it was simply not possible to accept JG's evidence that she was confined in the shed overnight and sometimes over successive nights without anyone in her family coming to learn of it.
In the course of the hearing of the appeal, counsel for WG also advanced the submission that the shed in which JG gave evidence she was confined was not secured by any lock or bolting mechanism allowing her to have walked out of the shed at any time. The Crown submitted that the state of the evidence as to the actual configuration of the shed, including lockable doors on the shed at any relevant time, was less than clear. The Court was not taken to any evidence in reply to suggest otherwise.
In any event, in my view, given JG's age and the multiple pressures she was subject to with the shed being regularly used as a place of punishment, including her fear of further punishment were she to have left the shed without her father's permission, it was open to the jury to accept that she had the impression or feeling of being confined in the shed, rather than being actually locked in. Viewed in that way, the actual configuration of the shed, including the fact that it may not have had a lockable door, did not serve to diminish her credibility.
The Crown also addressed the oral submissions advanced by senior counsel for WG that it was either inherently unlikely (or that it beggared belief) for JG to have been restrained by barbed wire or that it was draped over her body without sustaining observable injuries.
In the Crown's submission it would appear that JG was not necessarily wrapped up or tied up with barbed wire so much as the wire being draped over her. The Crown took the Court to JG's evidence in relation to counts 26 to 29 on the indictment where she described WG leaving the shed and coming back with barbed wire which he put across her body, attaching it to a nail as she "scrunched" herself into the corner of the shed. She described the wire as attached "to the top right of where I was sitting and my bottom left". She went on to give the following evidence:
Q. When you said he put it across you, was it touching you or was it just around you?
A. Yes, it was just touching against me so that if I moved it would dig into me. Like if I didn't move then it wouldn't hurt.
Q. After he strung that or put that up around you, what did he do then?
A. He left the shed.
Q. How long did you stay in the shed for?
A. I stayed in there for another night.
The Crown then took the Court to JG's evidence in relation to counts 58 to 59 where she described her father lifting up some barbed wire that had been wrapped around a tree from floodwater and dragging her underneath it. She gave following evidence:
A. … I was on my stomach and it wasn't hurting me, like the barbed wire wasn't hurting me but it was getting caught in my clothes, I couldn't get up and that's when I started to feel jumping ants biting me all over my body.
Q. And did you remain there or what happened?
A. For a little bit and dad lifted the barbed wire up and he pulled me out. I remember that I was crying because of the pain and dad dragged me down into the water which was right there and he was standing in the water and he held my head under the water. He pulled it out and he pushed it back under and pulled it out again and pushed it back under again. He did that a fair few times. Each time I had to hold my breath for quite a while and then he pulled me out of the water and let go of me.
In his submissions in reply, senior counsel for WG took the Court to another occasion where JG gave evidence of being in the shed where barbed wire was implicated. In his submission, here she gave evidence that the wire had injured her. This was said to support the submission that there was no evidence that she had observable injuries consistent with barbed wire lacerating her skin, seriously undermining her credibility.
The evidence to which counsel referred is set out below:
Q. And after you were in the corner what happened?
A. He went and got the barbed wire and came back in and by that stage I was up against the back of the shed. Dad got the rope and he tied my wrists together at the front of my body and then attached the barbed wire in front of my body.
Q. And is that the same barbed wire you have told us about previously?
A. Yes.
Q. And what happened after that?
A. He left the shed.
Q. And what did you do once he left the shed?
A. I stayed there where he put the barbed wire across me and I remember I fell asleep because I woke up and it was light and I remember seeing that I had some blood like where ‑ obviously where the barbed wire had dug into my arms and my legs.
Q. And did you see your father?
A. Sorry?
Q. Did you see your father that morning?
A. Yes, he ‑ yes, he came down after it wasn't light for very long and he took the barbed wire away and he untied me and he told me to go and get some training gear on because we had to go to a hills session, a Saturday hills session.
While these extracts may not address each of the occasions where barbed wire was said to have been implicated in JG's confinement in the shed, and accepting that the last passage refers to the wire digging into her arms and legs, in the consideration the jury was obliged to give to JG's credibility, and after taking into consideration the submissions of defence counsel that she was a dishonest witness whose evidence was incapable of being believed, this aspect of her evidence, while not unimportant, was just one of a range of features of her evidence the jury were invited to consider in their deliberations to verdicts.
After undertaking a detailed review of the evidence and applying the settled principles upon which a court will set aside a verdict as unreasonable or unsupported by the evidence, I agree with the Chief Justice that the advantage the jury enjoyed in hearing JG's evidence and seeing her in the witness box, and the consideration they might have given to WG's evidence and seeing him in the witness box, in the context of a body of evidence supporting JG's account as truthful and reliable, none of the features of the trial which WG contends ought to have left a jury with doubt as to his guilt have that necessary effect. I am in no doubt that the verdicts of guilty returned by the jury were open to them.
An extremely troubling submission was advanced in writing in support of this ground of appeal. It was not retracted by Mr James at the hearing of the appeal. (In that connection, I note that no oral submissions were advanced in support of ground 8 of KG's conviction appeal. Counsel expressly relied upon the written submissions.)
The submission I found particularly troubling was expressed in writing as follows:
The complainant was mentally unwell, to say the least, during the period when these allegations were generated. Mentally unwell people are sometimes the source of deeply wrong, misconceived or malicious allegations… Sometimes those who are genuine victims of childhood sexual abuse are deeply affected so they come to suffer mental illness, sometimes PTSD and self-harm. With some persons who are mentally unwell and make allegations of sexual abuse, it is very difficult to determine whether the mental illness is the product of the sexual abuse or whether false allegations of the product of the mental illness.
The submission went on to assert that it was open to the jury to believe when KG laughed when informed about the finding of the tools and referred to them being deposited by angels, the clear inference (and I assume an inference which it was submitted the jury should inevitably have drawn and one which this Court would inevitably draw) was that KG believed that the discovery of what was described in the submission as "the supposed evidence" was because of JG's "disturbed condition".
I reject those submissions out of hand. There was no foundation in the evidence to advance the submission that JG's complaint to police of the serialised abuse she had suffered at her mother's hand over 11 years was the product of "mental illness" and nothing to ground the proposition that her evidence was false because she was mentally unwell. This submission should not have been made in writing without any evidential support for it and should not have been maintained by senior counsel who appeared in the hearing of the appeal.
After a thorough review of the evidence adduced by the Crown in KG's trial, and after taking into account the evidence that she gave and the evidence that she called in her defence summarised above, I am not persuaded that any count on the indictment (much less all counts on the indictment) are unreasonable or cannot be supported having regard to the evidence. In my view, it was open to the jury to have been left with no doubt as to her guilt on each of the counts upon which guilty verdicts were returned.
Ground 8 of KG's conviction appeal is rejected.
The orders I propose are as follows:
1. KG's appeal against conviction is dismissed.
Comprehensive reasons for sentence were published in which the sentencing judge made the following findings of fact concerning WG's subjective circumstances.
He was age 59 at the time of sentence. He married his wife in 1989. After moving with his young family from Melbourne to rural New South Wales in 1994 he began work as a university lecturer and was later promoted to a senior lecturing role when he was completing his PhD. He ran an outdoor education program at the Southern Cross University involving weekend trips and holidays to Central Australia. In 2008 he set up a business for reviewing occupational health and safety for businesses in Papua New Guinea.
Her Honour noted that there was no psychiatric or psychological evidence tendered on sentence which might provide an insight into why WG engaged in serious and prolonged sexual offending, or whether treatment in such courses in which he was willing to participate would enhance his prospects of rehabilitation given his denials of any wrongdoing.
Despite there being no evidence of remorse or any evidence that WG had any insight into his offending, and despite her Honour's finding that his prospects of rehabilitation were "bleak", she was satisfied that, given his age, the likelihood of reoffending was low.
Her Honour noted that the applicant had no relevant prior convictions and that numerous references were tendered attesting to his good character, as to which her Honour made the following observations:
There are numerous references in support of the father before the Court. In the main, they are repetitive and only very few of the authors have acknowledged his convictions (as opposed to their simply being made aware of the alleged offences). These persons knew the father in a public setting as a coach, as a friend or as a colleague. His positive attributes and contributions to others as a coach were conformed in the character references, namely,
Jade Brandt and her mother, Linda Brandt, trust and commend him as a coach.
Nichola Fisher said he was firm and fair with all of the children he coached and pushed them to their ability.
Sandra Reed added that in relation to his position as a coach he cared for all the kids and devoted a lot of time to the whole squad.
Leanna Smith said that during the father's time working in Papua New Guinea he was committed to helping the villagers and children have a better life.
Lynne West described being good friends with the father for many years. Her daughter, Casey West, who was coached by the father added, "As a coach he was hard but fair."
Paul McGuilverey describes his friendship with the father saying he was always struck by his fairness and generosity.
Trent Wilde, who was coached by the father for many years said he was a down to earth person who was "never angry or upset if we didn't perform well or make it to the goals he set for us."
Individuals can of course have both a public front and a very different front away from the public eye. Having seen the father over many months including watching him closely when he gave evidence, I find it wholly unsurprising that numerous people describe him as they have. The father struck me as being confident, or rather over-confident, arrogant and as having an inflated sense of worth. His priority, bordering on an obsession, was to maintain and promote a positive public perception of himself, particularly as the coach and father of three elite and successful athletes. That priority trumped his primary responsibility as a father to his youngest daughter. The references in support of the father demonstrate the degree to which people were hoodwinked as to his true nature.
To the extent the character witnesses describe him as being loving and supportive of his children I completely reject that evidence insofar as it pertains to his youngest daughter. The many serious offences for which he has been convicted are the complete antithesis of the person so described.
The father has no record of relevant prior convictions and was a person of good character, at least when he committed Count 1. Evidence of good character has far less weight when it is relied upon for offending of the present type. The weight to be given to the evidence attesting to this offender's good character is substantially diminished by reason of the fact he committed so many serious offences over such a lengthy period of time. Clearly, he hid his offending from the public eye including these referees for a very long time. In all the circumstances he cannot rely upon the fact he has no relevant record of previous convictions as a matter for the Court to extend any degree of leniency (R v Smith (2000) 114 A Crim R 8 at [21-22]; MPB v R [2013] NSWCCA 213 at 126). (Emphasis added.)
The passage highlighted above is the subject of the first ground of appeal against sentence to which I will later refer.
The sentencing judge found WG had engaged in a deliberate course of prolonged and grave abuse, completely disregarding and exploiting JG's vulnerability and powerlessness for his own purposes, knowing that the sexual abuse he subjected her to, and its repeated and violent nature, would cause her serious psychological, emotional and, at times, observable physical harm. Her Honour was satisfied that he acted with complete disregard for those inevitable consequences.
In the process of indicating a sentence for each of the 73 counts which attracted guilty verdicts, her Honour approached the assessment of the objective seriousness of each of them in recognition of the fact that an assessment of objective seriousness is an essential part of the process of any sentencing exercise, including in the aggregate sentencing exercise in which she was engaged.
Her Honour also recognised that the maximum statutory penalty for an offence serves not only as an indication of the relative seriousness of the conduct comprehended by a particular offence; it is also a "yardstick" against which the offence under consideration might be considered relative to other offending. Finally, her Honour noted that approximately half of the offences for which she was to indicate a sentence attracted a standard non-parole period of 10 years against a statutory maximum of 20 years as a further matter to be taken into account in the process of indicating a sentence for those offences.
After frankly acknowledging the need to put to one side her personal revulsion at the extent to which at times one parent and at other times both parents had repeatedly sexually mistreated JG, her Honour assessed the objective seriousness of each offence by expressing her findings as falling within a particular range of objective seriousness from within a "serious range" to an "extremely serious" range to the "most serious or worst range" of objective seriousness, acknowledging that different combinations of relevant factors might lead to different findings as to where along a continuum of seriousness particular offending might fall.
Her Honour also identified what she regarded as general observations relevant to the objective seriousness of all 73 offences, in particular JG's age, the fact that WG was her father and in respect of each offence that she was under his authority:
As I have observed, when a court is sentencing an offender for multiple offences, it is necessary to individually assess the objective seriousness of each offence. However, where there are features relevant to the objective seriousness of most if not all of the individual offences, such common features can be identified in a more global way.
Accordingly, I intend to identify common features in this global fashion and will not necessarily repeat them when I deal with the objective seriousness of each individual offence.
The applicant relied upon two grounds of appeal:
1. The sentencing judge erred in not giving any weight to the applicant's good character.
2. The sentence was manifestly excessive.
The following passage in the judgment of McHugh J in Ryan is relied upon as the source of error:
[23] It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character.
[24] If an offender's character was determined by reference to the offences for which he or she is being sentenced, he or she would seldom be "of good character". I hesitate to say "never" because in Ziems v The Prothonotary of the Supreme Court of NSW Kitto J thought that the circumstances giving rise to the conviction of a barrister for manslaughter did not "warrant any conclusion as to the man's general behaviour or inherent qualities". His Honour also thought that the conviction was "not inconsistent with the previous possession of a deservedly high reputation". Indeed, contrary to other members of this Court, Kitto J said that the barrister should not be suspended from practice while he was undergoing his gaol sentence.
[25] Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.
Having made a positive finding that s 21A(5A) of the Crimes (Sentencing Procedure) Act was not enlivened (that section makes express provision in appropriate cases for the good character or lack of previous convictions of an offender to be disregarded for sentencing purposes where the sentencing court is satisfied that the claim of good character was of assistance to the offender in the commission of the offence), the only issue her Honour was obliged to determine was the weight which was to be afforded the evidence of good character.
In my view, the passage in the sentencing reasons upon which counsel relied as demonstrating error should not be construed as reflecting either a failure on the part of the sentencing judge to take good character into account or a refusal to allow WG any leniency whatsoever for that evidence. Properly understood, her Honour should be taken to have found that despite the fact that WG had no record of previous convictions, and that evidence from a range of character witnesses supported the fact that that he was a person of good character prior to his offending against JG in 1997, qualified by the fact that they were either unaware or unprepared to accept that he was convicted of 73 offences of the utmost gravity after that date, her Honour resolved to give the evidence no weight in mitigation. The language her Honour used is expressive of an assessment of the weight that might be afforded evidence in mitigation and a determination, in the exercise of discretion, to afford it no degree of leniency in all circumstances.
I would dismiss the first ground of appeal.
The Crown submitted that her Honour did not ignore what was put on WG's behalf on sentence so far as his subjective circumstances were concerned, including his claim to prior good character at least as at 1997 when he first offended by having sexual intercourse with his five year old daughter. Rather, her Honour took his favourable subjective circumstances, such as they were, into account as part of the sentencing process but regarded them, for the reasons she expressed, as having no weight in mitigation and the aggregate sentence imposed reflects that finding.
The Crown also submitted that given the objective seriousness of the individual offences (an assessment which has not been shown to be infected with error) and the legislative guideposts provided for both by the maximum sentence of 20 years' imprisonment and a standard non-parole period of 10 years for 38 of the 73 offences, coupled with the need for the aggregate sentence to reflect the totality of the offending, including the time frame over which it occurred, the sentence imposed is not manifestly excessive, being neither "unreasonable" nor "plainly unjust". The Crown also emphasised that general deterrence is of particular significance in a sentencing exercise where the offending is of this magnitude, in recognition of the regrettably notorious fact that children who are exposed to premature sexual activity suffer physical and psychological harm (see for example R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110).
I am not persuaded that the aggregate sentence posed in this case has been shown to be manifestly excessive in the sense of it being "unreasonable or plainly unjust".
I have reached that conclusion taking into consideration each of the arguments advanced by WG's senior counsel. Before dealing with them in turn, in his written submissions WG's counsel invited the Court to accept that, according to the Judicial Commission statistics, the aggregate sentence imposed in this case is the highest aggregate sentence and non-parole period for offences against s 61J(1) of the Crimes Act in the period January 2008 to June 2018.
As the Crown pointed out in its submissions, those statistics are not a useful comparator where the aggregate sentence imposed in this case involved 42 separate offences against s 61J(1) of the Crimes Act (sexual intercourse without consent and under authority); an additional 16 offences against s 66A of the Crimes Act (sexual intercourse with a child under 10); and a further seven offences against s 66C(4) of the Crimes Act (sexual intercourse with a child aged between 14 and 16), in addition to multiple offences involving acts of indecency or indecent assault.
There is, in any event, a recognised difficulty in relying upon sentencing statistics in sentencing for child sexual assault offences. In XZ v R [2018] NSWCCA 76, Johnson J at [67] expressed the view that reliance upon statistics is rarely useful. That observation has particular traction in this case given the multiplicity of offences against multiple sections of the Crimes Act. That fact alone simply does not lend itself to any useful analysis of the Judicial Commission's statistics where the contention is that the aggregate sentence is excessive.
Further, the aggregate sentences imposed in the four cases cited by senior counsel as comparators in a schedule attached to his written submissions (Phipps v R [2008] NSWCCA 178; SGJ v R; Ku v R [2008] NSWCCA 258; PH v R [2009] NSWCCA 161; JL v R [2014] NSWCCA 130) are of no assistance. In only one case was the sentence imposed after trial; none were imposed for multiple offences in excess of 18 counts. In addition, each case, in different ways, reflected an interplay of factors that informed the moral culpability of the offender. There were no such corresponding forces at play in this case. In particular, there was nothing that suggested WG's offending was informed by an underlying condition of any kind; nor were there any relevant matters to which he could appeal which might have operated in mitigation.
In considering the aggregate sentence imposed in this case against a claim that it exceeds the bounds of a proper exercise of a sentencing discretion, in my view, the Judicial Commission statistics and the cases cited as comparators provide little to indicate anything approaching a sentencing trend or an identifiable range of sentences, and even less the upper limit of what might be thought to be an available sentence in a case of this kind.
In short, the number of offences and the extreme gravity of the offending is so egregious that no comparison with any other case or series of cases is useful.
Neither am I persuaded that the aggregate sentence reflects any failure on the part of the sentencing judge to properly apply totality principles, or that the non-parole period is "unreasonable" or "plainly unjust" despite its length and that the applicant will be 90 years of age before he is eligible to be considered for release to parole.
The sentencing judge was acutely aware of the impact of a lengthy aggregate sentence of imprisonment given WG's age at the time of sentence:
Given the age of the father, the length of the aggregate sentence I will impose upon him may have the practical effect of seeing him not released from custody before he passes away. While none of the offences for which he has been convicted carry a maximum penalty of life imprisonment that does not necessarily mean he must expect to receive a sentence which will have the effect he is released from custody before he in fact passes away.
The courts have made clear that age is not a licence to commit an offence (R v Holyoak (1995) 82 A Crim R 502 at 507). There is no sentencing principle that a sentencing court should impose a sentence which provides some prospect of an offender being released before his or her death. A fundamental sentencing principle is that the sentence ultimately imposed must reflect the totality of the criminality before the Court.
The fact is that adherence to the sentencing principle of proportionality may on occasions have the effect of imposing a sentence which is equivalent to that of a life sentence depending upon the age of the offender.
I have kept the father's age and the sentencing principles relevant to advanced age or relatively advanced age into account in passing sentence upon him. I have had regard to the submissions made on behalf of the father referred to at paragraphs 23 to 27 of Rose (2002) NSWSC 26.
I intend to impose an aggregate sentence which is appropriate balancing all relevant considerations. If as events transpire, the father passes away in gaol before he is released on parole that is a result of the need for him to be appropriately punished for his offences and denouncement of his criminal conduct.
Her Honour also acknowledged (as was the fact) that none of the 73 offences the subject of the aggregate sentence attracted a maximum of life imprisonment. However, she also emphasised (again correctly) that as a matter of sentencing principle, the aggregate sentence to be imposed must reflect the totality of WG's criminality and the non-parole period must also reflect the need for him to be appropriately punished for the nature and extent of his criminal conduct to be denounced. In the result, as is abundantly clear from the sentencing reasons, although her Honour was acutely conscious of WG's age, as she was of the sentencing principles that are relevant to sentencing a person of advanced age or advancing age, which in this case will mean that JG may not survive long enough to be considered for release to parole, she regarded the aggregate sentence and non-parole period as appropriate.
I can discern no error of principle in the approach of the sentencing judge to the applicant's age.
Her Honour was also conscious that were she to actually engage in an exercise of partially accumulating the indicative sentences to reflect that feature of the totality of WG's offending which involved a repetition of sexual offending against a child of the gravest kind, it would result in what she described as a "manifestly excessive" sentence. She considered that the sheer number of offences (which I interpolate to emphasise involved 67 counts of sexual intercourse with JG between the ages of 5 and 18) called for what she described as "a compromise" more than other cases might contemplate. She went on to say that she exercised "caution" before unduly notionally accumulating indicative sentences because of the compounding impact of what will necessarily be a long sentence.
It is worth emphasising the following passage in the sentencing remarks:
Each year in gaol has a greater impact on a person than the preceding year. Sentences should not crush any hope or desire for rehabilitation an offender might belatedly feel. On the other hand, the impression should never be given that there is some kind of discount for multiple offending. I am satisfied the sentence I will impose upon the father fairly and justly reflects his offending as a whole, the purposes of sentencing and has paid appropriate regard to his subjective circumstances, including his age. I am mindful this is his first sentence of imprisonment and it will be a lengthy one. I have made due allowance for the fact the father's earlier offences were committed under different sentencing legislation.
The substantial aggregate sentence which was imposed, in my view, fairly reflected both the gravity of WG's offending which extended, largely unabated, over 14 years, and the various and overlapping purposes of sentence, not the least being general deterrence and denunciation.
In this case, the application of totality principles obliged the sentencing judge to reflect in the aggregate sentence the enormity of the abuse and what her Honour described (accurately in my view) as "depravity of an almost unimaginable magnitude" reflected in the fact that 67 counts involved sexual intercourse with JG from the time she was aged five, continuing over successive years until she was age 17 before she left the family home to remove herself from further harm, before she was sexually assaulted for the last time at age 18 after her father tracked her down and removed her back to the family home from where she eventually escaped, never to return.
The application of totality principles also obliged the sentencing judge to ensure that in the appointment of the ultimate aggregate sentence, WG's use of various implements and tools to penetrate JG's vagina, commencing from when she was eight years of age and continuing until she was aged 16, was properly accounted for as a feature of his offending which added a layer of seriousness to already extremely serious sexual offending.
While conscious that the aggregate sentence needed to reflect principles of proportionality and principles of totality, as I have noted above, her Honour was also acutely aware that what she described as "considerations of accumulation" were not overlooked even though concurrence and accumulation are notional in the aggregate sentencing exercise. After making that observation her Honour said:
Where a sentence for one offence could comprehend and reflect the criminality involved in another, there should be notional concurrency. If not, there should be at least partial accumulation to reflect separate and discrete criminal acts.
The reality is that these important sentencing principles are difficult, if not impossible, to apply in sentencing the father and that is because of the sheer number of offences he has committed and their nature. What I am referring to here is these important sentencing principles regarding concurrence and accumulation.
Having determined indicative sentences appropriate to the objective seriousness of each individual offence committed by the father, if I was then to partially accumulate to reflect the repeated nature of the father's grave conduct, the result would be the imposition of a sentence that would be manifestly excessive. It must therefore be recognised that in sentencing the father there will be, perhaps more than other cases might ever contemplate, a compromise.
As will be seen when I announce the indicative sentences and then impose the aggregate sentence, faithful compliance with the totality principle has meant that the father has received relatively modest increases, if at all, to the non‑parole period for much of his offending. Furthermore, I have been cautious in unduly notionally accumulating sentences because of the compounding impact of what will be a long sentence.
I am also satisfied that the applicant has not made good the challenge to the aggregate sentence on the basis that some of the indicative sentences were close to the available statutory maximum for that offence, an approach which is said to be suggestive of a sentencing error which has translated into a manifestly excessive aggregate sentence, or that the indicative sentences failed to reflect WG's subjective circumstances. In my view, having regard to her Honour's heavily qualified finding as to the weight of the evidence of prior good character, the weight that could properly be afforded his subjective circumstances more generally has not been shown to have been either ignored or insufficiently accounted for in the appointment of the indicative sentences.
The challenge to the indicative sentences was principally directed to the following counts:
for each of counts 7, 11, 12 (each contrary to s 66A of the Crimes Act, attracting a maximum sentence of 20 years' imprisonment) sentences of 16 years and 6 months and 18 years and 6 months were indicated following an assessment of objective seriousness in the "extremely serious range" for each offence.
for each of counts 26, 27 and 29 (each country to s 61J(1) of the Crimes Act, attracting a maximum sentence of 20 years' imprisonment) sentences of 18 years were indicated following an assessment of objective seriousness in the "extremely serious range" for each offence.
for each of counts 34, 42, 43, 45, 54, 58-62 and 64 and 82 (each count also contrary to s 61J(1) of the Crimes Act, attracting a maximum sentence of 20 years' imprisonment but with a standard non-parole period of 10 years) sentences of 18 years with a non-parole period of 13 years and 6 months were indicated following an assessment of objective seriousness in the "extremely serious range" for each offence.
for counts 50 and 65 (also laid contrary to s 61J(1) of the Crimes Act, attracting a maximum sentence of 20 years' imprisonment and a standard non-parole period of 10 years), sentences of 19 years with a non-parole period of 14 years and 3 months and 20 years with a non-parole period of 15 years were indicated following an assessment of objective seriousness in the "extremely serious range" for count 50 and "most serious or worst range" for count 65.
There is no challenge to the sentencing judge's appointment of the objective seriousness of any of the offences using the nomenclature she adopted or the factual finding she made in arriving at that assessment. That is self-evidently in recognition of the fact that the assessment of objective seriousness is quintessentially within the role of a sentencing judge to be disturbed only in circumstances described by Spigelman CJ in Mulato v R [2006] NSWCCA 282.
As I understand it, the complaint is the sentences indicated for each of the 24 offences in the "extremely serious range" and the one offence (count 65) in "the most serious or worst range" were erroneously high because of their appointment at close to the statutory maximum and, as regards count 65, at the statutory maximum for that offence with a non-parole period of 15 years indicated against a standard non parole period of 10 years.
Since the indicated sentences are not themselves appealable, it is for WG to make good the submission that, absent any appeal to a failure to apply totality principles, the length of the indicated sentences has been productive of a manifestly excessive aggregate sentence.
I not persuaded that submission has been made out. Although the indicated sentences for at least half of the counts that attracted a maximum sentence of 20 years' imprisonment exceeded 15 years, with the majority of them of 18 years or more, even accepting that the indicated sentences of that length are very high, I am not persuaded that they are erroneously high. In this case, after applying totality principles and the caution her Honour saw it essential to exercise to ensure against the result of undue accumulation, I am not persuaded that the aggregate sentence is unreasonable or plainly unjust.
Despite the length of the sentence and the length of time WG will spend in custody before being eligible for release to parole, the nature and extent of his sexual offending, with a large number of sentences properly assessed to be in the extremely serious range of offending, necessarily attracted a very lengthy aggregate sentence. In my view, the aggregate sentence imposed was open to the sentencing judge in the exercise of her discretion.
The character references can be fairly summarised as follows:
Jennifer Medew has known KG for over 40 years and has the utmost respect for her.
Jane Goodwin said that KG is an amazing coach and mentor and has helped many children, teens and adults, including her own daughter.
Glenys Lithgow described KG as one of the most resilient people she knows and a strong and loyal friend.
Julie Neari described her as an intelligent person; someone who has worked tirelessly to protect and guide her middle daughter (CG) and son through recent times.
Jade Brandt and her mother, Linda, described KG as kind, a person who takes people under her wing, the sort of person one can confide in.
Elizabeth Wallach described KG as enthusiastic and supportive of anyone she comes into contact with.
Leanna Smith described KG as someone who lives her life with a love for healthy lifestyles and teaching others.
Noel Phillips wrote that in his experience KG is reliable and trustworthy.
Lynne West and her daughter, Casey, described KG as passionate, an approachable teacher who is always willing to help out a good cause.
Megan Wei and Sandra Reid also provided references.
With respect to this evidence, the sentencing judge noted the following:
To the extent the character witnesses describe the mother as loving, nurturing and supportive of her children insofar as those opinions pertain to her youngest daughter, the serious offences for which she has been convicted are the antitheses of such a person.
As I said in relation to the father, evidence of good character has far less weight when relied upon for offending of the present type. The weight to be given to evidence attesting to the mother's good character is diminished by reason of the fact she committed serious offences over several years against in the main her youngest daughter. She has no criminal record, that and her charitable works entitle her to a small degree of leniency.
There is no challenge to that finding.
The sentencing judge made the following additional findings of fact as concerned KG's subjective circumstances:
1. KG was born in 1965 and was 51 at the time of sentence. She has no criminal record.
2. She met WG when she was 20 and they married and had four children. While the children were young she worked on a casual or part-time basis as a teacher in the local area.
3. KG was an educated and intelligent woman who had studied psychology and had a graduate diploma in education.
4. WG was physically violent towards her on occasions when the children were growing up.
5. Following the premature birth of their son, KG suffered a breakdown and was treated for depression. She separated from WG for 12 months due to his controlling nature and lack of emotional support. They reconciled and remained together but then separated in the period leading up to the charges being laid.
6. KG was active in the community and had participated in charitable endeavours. She was involved in fundraising for premature and stillborn babies and participated in a number of charity runs to raise money for several organisations.
7. Prior to her remand in custody after trial, KG was the primary carer of her son, aged 19, who had a history of autistic spectrum disorder, attention deficit disorder and depression.
8. Although she displayed problematic alcohol use in the past, Dr Eagle considered that she did not appear to have an alcohol abuse disorder.
9. Her Honour summarised KG's mental health at the time of the offences and at sentence. KG was diagnosed with depression in 1998 arising from various factors and was prescribed medication. She coped with her depression with exercise and attendance at counselling for many years. She had been admitted to a mental health facility for two days following a motor vehicle accident. She periodically sought treatment for anxiety and depression due to the stress of the subject court proceedings.
10. Dr Eagle noted that, given her previous history of depression, KG had a higher risk of developing a depressive episode in the future.
11. KG had maintained her innocence and expressed abhorrence regarding the nature of the charges. However, she had no insight into her own conduct and there was no evidence of remorse.
12. She had a low risk of violent and/or sexual reoffending.
13. Various referees attested to KG's positive attributes, contributions and good character.
The sentencing judge made a number of factual findings concerning the objective seriousness of the totality of KG's offending in the context of what she considered to be general observations relative to the objective seriousness of the offending of both offenders, viewed globally. Although in some circumstances that approach might be productive of unfairness, in the sense that discrete offending of one offender might become unfairly contextualised because of the more egregious offending of another offender, a fair and balanced review of the sentencing remarks, which extended over two sitting days and 150 pages, satisfies me that neither KG nor WG can complain that occurred in this case. I note that neither make that complaint in their respective sentence appeals.
Her Honour considered that the deliberate nature of KG's conduct in the commission of counts 13, 25, 48 and 86 involved foresight and premeditation, although not planning of the kind contemplated by s 21A(2) of the Crimes (Sentencing Procedure) Act.
In respect of those nominated counts her Honour found, in particular, that KG's abuse of her role as mother was intentional as distinct from spontaneous or impulsive. She went on to say:
[KG] knew and she intended that her conduct would signal to [JG] that the father's deviant conduct was normal, that it would be beneficial to [her] to participate in it and significantly that she accepted what he was doing.
She knew her position as the mother placed her in a powerful position where she had the ability to shape and modify her daughter's entire thinking and moral development and in effect to shape or reset her daughter's moral compass.
She found all of the offences committed by KG (against JG and AA) involved a grave breach of trust having been committed as their mother. She took this into account as an aggravating feature under s 21A(2)(k). Her Honour was conscious in making that finding not to take into account the abuse of authority inherent in the commission of the offences, since abuse of trust and abuse of authority, as her Honour recognised, are distinct concepts that commonly arise out of the same set of circumstances. In many of the thirteen offences which attracted guilty verdicts, the fact that JG was under KG's authority was an element of the offence attracting a greater maximum penalty: MRW v R [2011] NSWCCA 260 (Bathurst CJ at [77]-[78]).
Her Honour also noted that, as JG expressed it in her victim impact statement, she felt betrayed and vulnerable to her father's abuse by her mother's failure to protect her which, in turn, significantly impacted her confidence and self-esteem and her fears of abandonment. As to the significance of the evidence of Dr Hoey-Thompson, JG's treating psychiatrist, her Honour said:
Both offenders, over the years of their offending had the opportunity to reflect upon their conduct and its enormous impact and the immeasurable harm they were causing. I recognise that no sentence can reflect the impact the offences before this Court and the harm that has been caused to the victim. To require the sentence, itself, to reflect the actual harm each has caused would impose an impossible task. While I have sought in these remarks and in each aggregate sentence to recognise the impact and harm done in accordance with principle that harm should never be measured against the actual sentence imposed.
The sentencing judge did not take into account the fact that all of KG's offending occurred in the family home as a feature of aggravation under s 21A(2)(eb) given that it was a family home shared by all family members.
The sentencing judge also considered that many of the offences were of relatively short duration or of a non-specific duration, without ignoring the fact that offending against children often occurs over a short period of time which in no way minimises the profound and deleterious effects of sexual offending against young children.
On the appeal, the Court was invited to draw the inference that KG's criminal offending was as a consequence of either fear of WG or because she was subject to intimidation or both, the dual elements which operate to avail a person of the non-exculpatory duress as a factor in mitigation of sentence. No attempt was made, however, to make good the submission that there was a relevant causative connection between WG's treatment of her and her offending, or that the finding made by her Honour that there "was no evidence her offending was affected by duress" was not reasonably open to her on the evidence. The bald submission that "the evidence strongly suggested a causal link between [KG's] offending and her suffering at the hand of a tyrannical husband", and that the Court should infer such a causal link, failed to discharge the onus of establishing a factor mitigating sentence on the balance of probabilities.
On the appeal, the Crown also emphasised that the majority of the acts of sexual assault, indecent assault and acts of indecency (being counts 15-17, 25, 67 and 73) were committed by KG, either in WG's absence or where there was no evidence as to his presence in the home when the offending occurred. Further, the evidence as to the commission of those offences which took place in the master bedroom when WG was present and participating in a single assaultive episode (being counts 37-40) did not suggest KG was in any sense pressured or prevailed upon to assault JG (including to digitally penetrate her).
I would dismiss the first ground of the sentence appeal.
That submission fails to grapple with two fundamental propositions. The first that a sentencing error is not made out by the bald assertion that a more favourable finding might have been made. What needs to be demonstrated in order to make out a claim that the sentence was infected by error of the kind asserted here is that the finding that was made was not reasonably open on the available evidence, or it was positively contradicted by it. The second proposition is related to the first. If an unqualified finding of good prospects of rehabilitation was sought, the onus was on KG (through her counsel) to persuade her Honour of that fact on the balance of probabilities: Williams v R [2012] NSWCCA 172 at [57].
It is not entirely clear from the submissions that were advanced on KG's behalf before the sentencing judge that an unqualified finding that KG had good prospects of rehabilitation was sought. The following passage extracted from the proceedings on sentence would appear to me to indicate a frank and sensible assessment by counsel that his client's prospects of rehabilitation were largely dependent upon range of considerations such that, in his ultimate submission her otherwise good prospects of being rehabilitated was qualified. Counsel submitted as follows:
Prospects of rehabilitation. Well, we submit they're good in the sense that she has to obviously be punished for these offences, but she'd need treatment, she'd need to address what seems to be an alcohol "problem". She would have to consider eventually when she comes out of custody this question of employment, accommodation, being away from [WG] and getting her life back together, but with a number of riders. We submit the view of Dr Eagle is positive.
Her Honour was entitled to take into account KG's proven behaviour as a sex offender in assessing her prospects of rehabilitation and the views of those who have professional insight into that category of offending: Elyard v R [2006] NSWCCA 43 at [19] (Basten JA). She was also entitled, where a forecast of rehabilitation prospects was contingent upon treatment or other therapies, to take that into consideration in ultimately resolving to a factual finding as to her prospects of rehabilitation.
I can see nothing in the evidence, and nothing in the submissions of counsel at first instance or on the appeal, which would compel a finding that KG's prospects rehabilitation were other than as her Honour found them to be.
I would dismiss second ground of the sentence appeal.
I would dismiss the third ground of appeal.
The sentencing judge then approached the harm that JG had suffered by the sexual mistreatment of her by both of her parents and its impact for sentencing purpose.
In the passage which I extract below (which follows in the sentencing reasons immediately after the passage extracted above) her Honour was conscious of the need to make a separate determination of the extent of the impact of harm for sentencing purposes on both offenders. Her Honour said:
Both offenders, over the years of their offending had the opportunity to reflect upon their conduct and its enormous impact and the immeasurable harm they were causing. I recognise that no sentence can reflect the impact the offences before this Court and the harm that has been caused to the victim. To require the sentence, itself, to reflect the actual harm each has caused would impose an impossible task. While I have sought in these remarks and in each aggregate sentence to recognise the impact and harm done in accordance with principle that harm should never be measured against the actual sentence imposed. (Emphasis added.)
In this sentencing exercise, the challenge was not to conflate the impact of WG's offending with the impact of KG's offending.
After a thorough reading of the sentencing reasons, and taking into account the nature of the sentencing task and the need to ensure that the reasons for sentence which were delivered jointly were coherent, transparent and in conformity with sentencing principles and practice, I can see no error in the way in which her Honour treated the victim impact statements or her Honour's assessment of the harm suffered by JG and AA, a proposition of common law reflected in what was said in Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [29] now endorsed in s 3A(g) of the Crimes (Sentencing Procedure) Act. That section provides as follows:
The purposes for which a court may impose a sentence on an offender are as follows -
(g) to recognise the harm done to the victim of the crime and the community.
I would dismiss the fourth ground of the sentence appeal.
Although it was not submitted that the appointment of the indicative sentences for any one or more of the 13 counts was the source of error in the appointment of the aggregate sentence, in considering the challenge mounted by KG to the aggregate sentence as manifestly excessive, I accept that the sentences indicated for each of the 13 offences committed over a period of 11 years informs that question although not definitive of it: JW v R.
In this sentencing exercise, given the assessment of the level of objective seriousness revealed in the conduct inherent in each count as against both the statutory maximum provide for, and so far as counts 38 and 87 are concerned the standard non-parole period, none of the thirteen indicative sentences are, in my view, open to challenge.
The thrust of the challenge to the aggregate sentences as manifestly excessive seems to be limited to the general assertion in the written submissions that none of the offences involve "brutality or gratuitous violence" or were committed with a "pornographic" focus which, after taking into account that KG was also said to be a victim of her husband's abuse, was a sentence "not merely on the high side" but, rather, a lengthy term of imprisonment that was "plainly wrong". I have already dealt with the submission advanced in support of the first ground appeal to the effect that non-exculpated duress was a factor operating in mitigation of sentence.
In addition to having rejected that ground of appeal, I am not persuaded that the submission that the sentence was "plainly wrong" has any persuasive force. As the Crown pointed out in its submissions, it is not to the point that KG's offending may have been objectively more serious such as to elevate her overall offending into a different category of seriousness (see for example R v CTG [2017] NSWCCA 163). It has long been recognised that sexual offences committed against children are objectively serious irrespective of whether the offending occurred on one occasion or on multiple occasions given the capacity of the associated trauma to cause long-term psychological damage. This Court has made that observation repeatedly. In R v Toohey [2019] NSWCCA 182 the Court (Gleeson JA, Button and Lonergan JJ agreeing) applied EG v R [2015] NSWCCA 21 at [42] and said:
General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.
In my view, an aggregate sentence of 16 years with a non-parole period of 11 years, comprehending the totality of the criminality in thirteen offences committed over an eleven year period, with three offences involving sexual intercourse with her daughter aged 8 and 12 (the latter was committed in the presence of her husband), is offending of a most egregious kind. When coupled with the need for an aggregate sentence that both denounced her conduct as a mother from whom JG was entitled to expect protection and to reflect principles of general and specific deterrence, the sentence imposed does not warrant this Court's intervention. In my view, the sentence is neither "unreasonable" nor "plainly unjust". I would dismiss ground 5 of the sentence appeal.
The orders I propose are:
1. Leave to appeal is granted.
2. The appeal is dismissed.
FAGAN J: With respect to WG's conviction appeal, I agree that leave should be granted so far as necessary and that grounds 2 and 5 should be rejected. I agree with the Chief Justice's reasons in relation to those grounds. With respect to ground 2, concerning the failure of the Crown to call Dr Nittis, I have added below additional reasons of my own. I would uphold the unreasonable verdict ground, being ground 4, and quash the convictions of WG on all counts. That conclusion makes it unnecessary to determine ground 1, which is concerned with new evidence of such a nature that it could only be directed to securing a retrial rather than acquittal.
With respect to KG's conviction appeal I concur in Fullerton J's proposed disposition of grounds 1-5, 7 and 9, for the reasons her Honour has given. In my view the unreasonable verdict ground, ground 8, should be upheld in KG's appeal. I do not find it necessary to determine ground 6 concerning new evidence from Dr Nittis, again because that ground could only be directed to a retrial and consideration of it is obviated by my conclusion that the verdicts are unreasonable.
As mine is a dissenting view with respect to the convictions, it is necessary that I consider the applications for leave to appeal against sentence. I would grant leave, dismiss WG's sentence appeal but allow that of KG. I would re-sentence KG to an aggregate term of 10 years with a non-parole period of 7 years.
The Chief Justice and Fullerton J have summarised the evidence of the complainant comprehensively and I will express my reasons on the basis of their summaries, avoiding repetition so far as possible.
Dr Nittis' report of 6 August 2015 contained her opinion on that subject as follows:
[It is] highly unlikely that [the] amount of repetitive and significant injury [described by the complainant in relation to the penetration of her vagina with tools], with no treatment being provided, could continue to occur without infection. […] [I]t is reasonable to expect that there would be some injury residual i.e. the presence of scarring somewhere.
Nine days before Dr Norrie gave her evidence, on 4 May 2016, the then solicitor for both WG and KG requested that the Crown call Dr Nittis in its case. The Crown replied the same day, declining on the ground that "Dr Nittis provided a report at the request of the accused and is not a Crown witness". Counsel who appeared at the trial for WG has deposed that Dr Nittis was on standby to be called in WG's case but that counsel did not confer with her, either in preparation for the trial or during it, and made a decision not to call her. There were forensic reasons for this decision. With respect to the two aspects of Dr Norrie's evidence referred to above, counsel has deposed that his reasons for not calling Dr Nittis were as follows:
1. By Dr Norrie acknowledging in cross-examination that her view on un-oestrogenised hymen being an indicator of pre-pubertal damage was based only on her own experience and not on any medical research, she had effectively conceded what Dr Nittis would have said on the point.
2. With respect to Dr Nittis' view that vaginal infection would likely have resulted from the insertion of tools, counsel understood that the complainant had acknowledged having suffered some infections. He also thought that Dr Nittis' opinion on this topic had been anticipated and weakened in advance by Dr Norrie's evidence that bleeding and bodily repair mechanisms would have overcome infection.
Given that the witness whom the Crown did not call was an expert who would express professional opinions rather than provide testimony of the facts; that the expert had been engaged by the accused and was available and willing to consult with defence counsel and to give evidence in the defence case; and that an informed forensic decision was made not to call the witness, the accused cannot establish a miscarriage of justice. He therefore cannot succeed upon ground 2, which depends upon showing that the Crown failed to fulfil its duty to present the prosecution case fairly and that justice miscarried as a result. Further, it would be a significant and unwarranted extension of the undoubted duty of fair presentation of a prosecution case to hold that the Crown is obliged to call an expert engaged by the defence, who expresses opinions different from those of an expert in the same discipline whom the Crown has qualified. Such an extension would substantially modify the adversarial system.
Dr Nittis' status as a defence-engaged expert is not altered by the circumstance that she attended the gynaecological examination with Dr Norrie. That did not involve the Crown qualifying her as its own expert and was no more than the occasion upon which Dr Nittis acquired knowledge of the factual premises for her opinions.
In Velevski v The Queen [2002] HCA 4 the Crown had called, in the trial of the appellant for murder, a forensic pathologist, Dr Bradhurst. He had conducted a post-mortem examination of one of the victims, the appellant's wife. Dr Bradhurst was of the opinion that the wife's fatal knife wounds had been self-inflicted. The Crown called four other pathologists each of whom said that features of the wounds and of the scene in which the deceased's body was found were consistent with homicide. A police officer gave evidence that certain other pathologists had "agreed with" Dr Bradhurst's opinion. No statement or report had been obtained from any of those other experts, or from Dr Botterill who assisted at the post-mortem.
Gleeson CJ and Hayne J rejected the proposition that the prosecutor was bound to call the other possible expert witnesses in order to achieve "balance". Their Honours said at [47]:
On its face [that proposition] suggests that, in every case where expert evidence is to be led, the prosecution must seek out and adduce evidence of competing or contradictory opinions. Why that should be so in an adversarial system is not revealed. What is required is that the prosecution case is presented with fairness to the accused: Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19. Fairness does not require some head count of experts holding differing opinions. […] In such a cases as the present, where several experts were to be called to give evidence, the prosecution, not already being in possession of evidence from other expert witnesses, was not bound to seek it out by having the witness qualify himself or herself to form an opinion and then to call the witness to give evidence of the opinion that was formed.
Gaudron J considered that in the circumstances of that case the Crown's duty to present the prosecution case fairly obliged it to obtain statements from other experts who were known to have expressed opinions concurrent with that of Dr Bradhurst: at [118]-[121]. Gummow and Callinan JJ were tentatively of the view that the other experts should have been called but considered that there had been no miscarriage of justice: at [176].
In Gilham v R [2012] NSWCCA 131 the Crown did not call Dr Cordner, an expert pathologist whom it had qualified and whose opinion differed significantly from the opinions of other experts called in the prosecution case. This Court held that there was no legitimate reason for not calling Dr Cordner, that the failure to do so had breached the prosecution's duty to present the case fairly and that a miscarriage of justice and resulted. The Court's reasons included the following:
[405] The expert witness has independent obligations to the Court under the Expert Witness Code of Conduct (see Schedule 7 to the Uniform Civil Procedure Rules 2005). The paramount duty of the expert witness is to the Court and not to any party to the proceedings. An expert is not an advocate for a party. It is in the discharge of the different but allied obligations of the expert and the Crown Prosecutor that the jury is educated and informed about matters in issue between the Crown and the accused which are beyond the jury's experience. Where the views of the experts differ, the extent and basis for disagreement can then be tested, if necessary, with the Crown seeking leave to cross-examine where the evidence might prove to be unfavourable under s 38 of the Evidence Act (as occurred in Velevski). It is in that process that the interests of justice are preserved and advanced. The assertion by the Solicitor for Public Prosecutions that it is not appropriate to utilise s 38 for the purpose of calling an expert witness who the Crown intends to discredit by obtaining leave to cross-examine is not soundly based, whether in the context of this case or generally. On the appeal it was only faintly suggested that this approach to the construction of s 38 provided justification for the Crown's decision not to call Professor Cordner.
[409] There could have been no resistance to an application by the Crown for leave to cross-examine Professor Cordner at trial, to explore what the Crown thought was a persisting bias or imbalance in his approach. This is assuming the Crown Prosecutor maintained that view after leading evidence from him concerning the question of similarity or the pattern of injuries, and after giving his views the careful consideration they deserved.
Neither Velevski v The Queen nor Gilham v R, nor any other decision cited to us, dictates that the Crown's duty of fairness extends to calling an expert who has been qualified by and has provided an opinion to the accused. An expert in that situation would be under an obligation to uphold the legal professional privilege of the accused with respect to the expert's communications to and from the accused's legal representatives, with the exception of communications by which matters upon which the expert relied to form his opinion may have been conveyed. Because the expert has been qualified by the accused, the Crown could not assert legal professional privilege over any communications it may have with the expert, for example in conference with the prosecutor. To hold that the Crown should be obliged to call the accused's retained expert would impose impediments and unfairness upon the Crown rather than advance the interests of fairness to the accused.
With respect to the latter, there is no apparent necessity to broaden the obligation of fair presentation so that it would require the Crown to call defence-qualified experts. This is illustrated by considering, for example, the common experience in New South Wales when cause of death emerges as an issue in a murder trial. The defence will usually qualify one or more medical experts and call them. It is not apparent that any compromise to the fairness of a trial results from the accused adducing evidence from his or her own expert, rather than being able to require the Crown to call that witness.
It was argued on this appeal that if WG had to call Dr Nittis the jury may have rejected her evidence because they would perceive her to be in the defence camp. There is no substance in that submission. Juries are as a matter of course directed regarding the obligation of expert witnesses to express opinions only in accordance with genuinely held professional views and not as advocates. They are directed to evaluate competing expert opinions having regard to the validity of assumptions made, the depth of the expert's training and experience, the strength of his or her reasoning, any manifestation of advocacy or lack of independence and so on. There is no reason to believe that jurors do not act in accordance with these standard directions. Verdicts of not guilty are often enough returned in circumstances that indicate the jury's acceptance of expert evidence called by the accused. The Crown's refusal to call Dr Nittis was not a breach of its duty of fair presentation. I would reject ground 2.
Perhaps such physically painful, emotionally confusing and fear-inducing events as the complainant described would have been so impressive in early childhood that, if nothing remarkable had followed, detailed memories would indelibly remain. But the complainant's improbable claim was that she could bring back memories of the individual traumas, with specific sexual details and in sequence, after suffering constant inhuman abuse of a similar kind over more than another decade. This was an exercise in memory and resilience that must have been beyond the experience of any member of the jury.
In my view the jury had to have had a reasonable doubt that such an extraordinary feat of discriminating recall was possible. The same applies with respect to the complainant's evidence of the more than 30 further incidents that she said had occurred between the end of 2000 and the end of 2009; that is, between the ages of eight and 17. Christmas Day 2000 was the date to which the complainant attributed count 11, being the first offence of penetration with a tool. She described two more offences involving the insertion of tools at age eight, three at age 10, one at age 12, five at age 13, six at age 14, two at age 15, one at age 16 and two at age 17. She said that these were interspersed with other instances of penile-vaginal and penile-oral intercourse, some on the same occasions as the use of tools and some on different occasions. The complainant described several tools. She purported to recall which of them was used on each occasion, except for four instances when an unknown tool was used.
When the complainant's police statement was made these alleged instances of penetration with implements were between two and 11 years in the past. Most of the grounds given above for doubting whether the complainant could genuinely recall and discriminate between the particulars of repetitive traumatic offences up to the age of eight apply also to the years from 2000 to 2009. On the same point, the complainant claimed to recall which occasions involved her being bound with rope, when she was hemmed in with barbed wire, how many nights she was left in the shed and other details from event to event.
Dr Hoey-Thompson's evidence that the complainant suffered from post-traumatic stress disorder of dissociative subtype was necessarily - and expressly - based upon acceptance of the complainant's account of her experiences, related over six years and "thousands of hours" of psychiatric consultations. Dr Hoey-Thompson gave this evidence:
[The] studies indicate that it is usually with trauma that occurs before the age of five or six years, to be dissociative identity disorder, and usually of an intense, frequent and recurring nature, not just once.
The doctor said that dissociative identity disorder is characterised by the patient blocking out memories of trauma in order to survive and doing this frequently enough to develop "discrete individual states", one of which may be a state in which traumatic memories are repressed so that the person may continue to function day to day. None of this evidence purported to be a professional opinion that the complainant's claimed memories of the details of incidents from many years before, in her early childhood, would be accurate. The doctor did however give this evidence:
I do have patients at times that have, what we diagnose, we call factitious disorder or malingering and it may be that they want the disability pension or escaping jail or something to that, but to that degree of genuineness, to do over six years thousands of hours, I think would be quite implausible, but also too remote even. It would be difficult to think about.
No objection was taken to the above answer, which was led by the Crown in chief. The jury, of course, could not substitute Dr Hoey-Thompson's opinion concerning the complainant's reliability for their own assessment of her. There was no evidence of what details, if any, the complainant had given to the doctor about individual assaults perpetrated by her father. The jury had no knowledge of whether the history that Dr Hoey-Thompson had taken and that she found genuine was to the same level of detail as the evidence given in the trial, or, if so, whether that history corresponded with the trial evidence concerning specific features of the individual occurrences that had to be established beyond reasonable doubt in order to sustain each count.
The complainant linked many of the alleged offences to other notable events in her life, such as athletic meetings, travel away from home, interactions with members of her extended family and the like. The objective, external events in her chronology were mostly uncontested, including those established by calendars of athletic events and records of the complainant's placings. However none of the external events was of a character that pointed to sexual offending by WG. They were no more than occasions that enabled the complainant to provide a sequence for her allegations.
In MFA v The Queen [2002] 213 CLR 606; HCA 53 at [51] McHugh, Gummow and Kirby JJ recognised:
the advantage that the jury enjoyed over the appellate court, and the undesirability of effectively replacing jury trial of serious criminal charges with trial before a court of criminal appeal comprising (normally) three judges who ordinarily see no witnesses, hear no evidence and decide the reasonableness and supportability of the verdict by reference to selected passages of evidence to which attention is drawn by the parties.
Those considerations are especially apposite to WG's ground 4 in the present case. In order to decide such a ground this Court is required to consider the whole of the evidence. The applicant has not advanced the unreasonable verdict ground by identifying specific evidence that is said to have contradicted the complainant and to have been, itself, irrefutable. As WG has argued that the Crown case overall manifested such a degree of unlikelihood that the jury could not convict, summaries and excerpts of the evidence provided by counsel on the appeal are not sufficient to enable the Court to assess the contention. Substantial as the task is in relation to a trial that ran for three months, WG's formulation of his unreasonable verdict ground has required the Court to go to the full transcript of all the witnesses.
The unreasonable verdict ground must be determined having due regard to the jury's status as "the constitutional tribunal for deciding issues of fact", as well as "the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial": The Queen v Baden-Clay [2016] HCA 35 at [65]. Nevertheless, where a Crown case has depended entirely upon the evidence of a complainant whom the jury clearly found credible and reliable, verdicts of guilty may be found unreasonable. This is illustrated by Pell v The Queen [2020] HCA 12, an appeal with structural similarities to the present case. The High Court's judgment in that case includes the following:
[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence [s 276(1)(a) of the Criminal Procedure Act 2009 (Vic)], in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
Here, where the "other inadequacy" is said by WG to have consisted in the improbabilities identified above, the Crown submitted that the jury were able to resolve those improbabilities as follows:
1. Absence of contemporaneous complaint during the years of offending is said to have been explained by the complainant's evidence that she:
1. lived in fear of WG;
2. did not appreciate until late 2009 that her father's treatment of her was wrong;
3. was not close to her sisters and
4. could not complain to her mother because KG was complicit.
1. Absence of evidence that anyone, even in the same household, had become aware of the continuous offending is said to have been explained by:
1. lack of close contact between the complainant and her sisters and
2. the complainant having disciplined herself to be tough and resilient and to show no sign.
1. The complainant's evidence is said by the Crown to have been corroborated by:
1. evidence of WG's tendency to be sexually interested in his daughters and to act on that interest, including the evidence of AG and the sexualised photographs of the three daughters;
2. the complainant's diaries from 2006 and 2007;
3. the complainant's message scratched in the timber work of the shed and
4. tools and other items found on the property.
The complainant said that throughout her childhood and teens there were many more violent assaults upon her by WG than were detailed in her long police statement or in her evidence in chief. She said that when her statement was taken she was asked to commence "at the first clear sexual assault that you remember". She complied and largely confined her statement to sexual acts by her father about which she could be specific.
In oral evidence the complainant gave these further answers concerning continuous violent assaults, in addition to the frequent occasions of having her head held underwater in the creek at the time of some of the sexual offences:
Dad threw a lot of things [referring to objects] at us, all of us. […] [I]t was during the whole time growing up.
[H]e would also hurt me every day.
Q Did he physically assault you every day, that's what I'm asking?
[…]
A Yes, well, pulling my hair, throwing me onto the ground, yes but that didn't always result in bruises.
Q [B]ut are you saying pulling hair, throwing on the ground that sort of physical activity happened every day of the week?
A Yes, sure did.
The complainant said that her father pushed her hard from an early age to perform as an athlete. There was undisputed evidence from a number of witnesses that WG was ambitious and demanding with respect to running performance, particularly in relation to the complainant who was the most outstanding athlete amongst the applicants' children. At WG's direction all three daughters participated from the age of about five years. Training and competing were constant compulsory activities and pre-occupations of the entire family.
In cross-examination the complainant said that she strove to gain WG's approval and to avert violent repercussions from him, as follows:
A Yes, I was very nervous in every single race […] I was nervous about winning, yes, I was nervous about running a [Personal Best] but it wasn't because I wanted some medal around my neck, it wasn't because I wanted all those records you showed me the other day, it was simply because I didn't want dad doing what he was doing to me. That's why I was nervous for those races
[…]
Q And do you think that you put an enormous amount of pressure on yourself to win?
A Yes, and I think you would too if you are threatened to be put in the shed.
[…]
Q And that pressure comes from an internal expectation or desire […] on your part to win?
A Yes, but not for the reason that you are saying. There was huge pressure from both mum and dad, yes. Why do you think all those races I had to pull out of? I was completely and absolutely terrified of dad and not winning.
[…]
A [E]very day I would make sure that I would - could do everything better so that I could run faster so dad would stop doing what he was doing to me.
[…]
A […] I didn't want to disappoint dad and two of many things that I wanted was for dad to stop doing what he was doing to me and for him to tell me once, just once, that he was proud of me which I never heard him say.
The complainant recounted a number of separate incidents over the years in which WG physically assaulted KG. She said KG "didn't talk much in front of dad" and she described instances of WG expressing heated anger toward his wife, reducing her to tears. The complainant said:
There's been many occasions that mum has been very upset and crying, especially from dad.
There was many occasions that mum and dad fought or dad hurt mum, push[ed] her to the ground.
AG also gave evidence that WG dominated his daughters and was on occasions angry and violent. AG described this conduct as connected with WG's pressure for his daughters to achieve as athletes. The following extracts from AG's evidence are illustrative:
A [R]unning was all I ever knew. That was pretty much all we ever did, so huge expectation from since I can remember.[…] My relationship with my father has always been, I'm just terrified of him […]. It's always been just running, expectations, pressure that is the best way I can describe it.
Q And when you were growing up would he ever react to you in a physical way?
A Absolutely, yes, many times. That's how he reacted to a situation that didn't suit what he was after, he would react violently many times […]
AG said, "ever since I can recall I was terrified of my father". She described an occasion when WG threw a log at her, another when he struck her with a garden spray and an incident of him dragging her across the ground by her hair. She said she was quite often locked in the garage for hours at a time as punishment. AG also described an incident that occurred before the end of 2000 when WG pushed his wife against a mirror in their bedroom then pulled her by her hair from the house down through the property towards the creek, with KG screaming and AG pleading with her father to stop. AG would have been 12 years old at that time and the complainant would have been 8.
CG was called in KG's case and disputed that WG had acted violently or indecently towards any of his daughters or towards KG. CG was cross-examined by the Crown as to her credit, particularly on the basis that she had pleaded guilty on 15 October 2013 to a charge that she had threatened the complainant not to give evidence in the trial. It would have been open to the jury to discount CG's evidence on suspicion that it may have been deliberately untruthful and given with a view to trying to exculpate her parents regardless of facts known to her. In the witness box, in addition to denying all of the charges, each of WG and KG disputed the Crown's evidence of WG's uncharged acts of violence and indecency.
Paul McGuilverey was a teacher. He met KG in 2003 while completing his teacher training at a school where KG taught. He was a keen runner and he stayed at The Channon for a week-long training camp in 2003. Mr McGuilverey lived with the family in a house on the Gold Coast for the first six months of 2004. The complainant was then aged 12. Mr McGuilverey was in his early 20s. At the beginning of the 2004 school year he commenced teaching at Saint Andrew's Lutheran College, where KG had also just taken up a teaching appointment. He shared meals with WG, KG and the children. He said "I was like part of the family". Mr McGuilverey accompanied the family on a number of occasions when they went back to The Channon for weekends and he took part in many training runs with them.
Mr McGuilverey taught the complainant in 2004 and 2005 (aged 12 and 13). He said that when he stayed over at The Channon for running training camps he spoke with the complainant, including when they were out training together. He was the senior member of the squad in which he trained with her. Mr McGuilverey said that he knew the complainant "extremely well". The evidence did not establish what if any connection the witness had with the family after the complainant ceased to be his pupil at the end of 2005.
Mr McGuilverey described WG as "strict" with his daughters, both in training and as a parent. He was not cross-examined by the Crown to suggest that the complainant showed fear of her father or that there was any aspect of their relationship that could possibly support that the complainant might have been suffering serial abuse but was too frightened of her father to say anything.
Mr McGuilverey described a natural and open relationship between KG and her daughters, in which they sought her advice both at home and when the adults and children were out running together. He heard KG advise the girls about their transition from school at Lismore to the College on the Gold Coast and about dealing with peer conflicts and rivalries in sport. He said:
She was terrific. She was a good role model for the girls because she was having to adapt as well to a new school, and she was finding her feet in the new school as well. So she could give them advice on how to deal with different things.
The witness was not challenged by the Crown on this evidence. It was inconsistent with the complainant's evidence that KG was so extraordinarily depraved that she encouraged the complainant to engage in various sexual acts with WG and tutored her how to make those acts more enjoyable for him.
Sharon Hannan, who regularly saw WG coaching the complainant at Griffith University track over several years up to 2007, when the complainant was aged between about 10 and 15, said that she observed a common level of "backchatting" between the complainant and her father. She gave the following answer:
Q She never displayed from your observations any fear of WG?
A No.
Maegan Smith is a contemporary of the complainant who competed and trained with her between 2003 and 2009 (aged 11-17). They trained together two or three days each week and sometimes twice a day. Over the seven years of their close friendship Ms Smith stayed at The Channon to take part in training camps with about nine other athletes on many occasions. She was driven to the property by WG in a minibus with the other participants and they all stayed for the weekend. In addition Ms Smith ran with the complainant and other members of the family at Burleigh Heads and on the track at Griffith University. From this extended exposure Ms Smith described the family as follows:
Very close, very warm, very open, lovable, fun.
[In cross-examination:] They were very lovable people. That's exactly what I mean. Very lovable, very open. Like I said, just loving, caring people. I don't know how you couldn't […] love them as people.
At the Griffith University track Ms Smith regularly saw interaction between the complainant and WG, as athlete and coach. Ms Smith gave these answers:
Q Did [the complainant], from your observations, did she ever appear to be frightened or fearful of [WG]?
A Not at all.
[…]
Q Ever see any problems between the two of them?
A No.
Ms Smith gave evidence of her closeness to the complainant over the years 2003 to 2009, in these terms:
She was a friend, almost a sister. We used to do almost everything together.
Went to the movies, we went shopping, you know, what normal teenage girls do.
[Speaking of her attendance with the complainant at the Falls Creek athletics camp in late 2009:] [We] shared the same room, there was a lot of us, a lot of girls that did. And, yeah, we spoke about everything and anything, like normal girls.
She had a lot of friends at the [Griffith University training] track and a lot of friends in the squad. We all did.
Ms Smith referred to the complainant's normal demeanour as "bubbly".
Leanna Smith, Meagan Smith's mother, also knew the complainant and her family from 2003. She attended the Griffith University track with her daughter at least twice a week from 2003 until Maegan obtained her driving licence in 2008. Leanna Smith also saw the complainant, her sisters and WG at various athletics competitions. To her observation the complainant never appeared frightened of her father.
Ty Chapman was the same age as AG, that is, four years older than the complainant. He moved to the Gold Coast at the commencement of 2006 and he got to know the complainant from seeing her at the Griffith University track where they both trained, at different levels and in different squads. Mr Chapman also knew and observed WG as a coach at the track. He never observed the complainant to be frightened of her father.
Rachel Clarke is the same age as CG and went through high school with her from when they were both 13 years old, at which time the complainant would have been 10. Ms Clarke was a runner and she observed the complainant and her sisters and WG at the Griffith University track and on training camps at The Channon. She gave these answers in chief when called by the Crown:
I thought that [WG] was very controlling and sometimes aggressive towards the girls.
The less people around the more aggressive he was.
I found the girls to be quite scared and at times - yeah, quite scared and petrified.
Ms Clarke gave these answers in cross-examination:
Q But is that what you mean by "controlling", that he would tell his daughters what to do and when to do it?
A Yes
Q In relation to "sometimes aggressive", are you talking about, what, raising his voice?
A Yes
Q Is that the extent of it?
A I wouldn't say it was just raising your voice, I would say that it was a bit more - there was more anger than what it was aggressive.
In addition to the fact that these witnesses were overwhelmingly against the complainant's evidence of living in fear, not one of them was cross-examined by the Crown to suggest that the complainant ever appeared depressed, distracted or distressed in a way that might have suggested she was carrying the burden of frequent incestuous abuse and frightening violence, of which she felt unable to speak. Not one of these witnesses was cross-examined to suggest that the complainant had ever shared even a hint that she might be suffering severe abuse at home. They could not be cross-examined to that effect because the prosecutor had not led evidence from the complainant that she ever said anything regarding the alleged assaults to any of the witnesses, including her close friend Maegan Smith with whom the complainant "spoke about everything and anything, like normal girls".
The purported belief in normality is also inconsistent with the other explanation the complainant has given for not speaking out; namely, that her father threatened her with death if she told anyone what occurred in the shed: see [1627] above. Either she thought having sexual intercourse with her father and being tortured by him with tools was normal so that there was nothing to complain about or she believed this activity was something so terrible that her father would really kill her if she spoke of it - but not both of these things.
The following opinion evidence was led by the Crown from Dr Hoey-Thompson:
I think that my experience is that [the complainant's post-traumatic stress disorder and dissociation] were caused by trauma starting before the age of five and six, of that long, repeated, intense nature in the family; and then that additional [sexual assault by the athletics coach in Doha in late 2009], I believe when it was reported and legal action was taken, then led [the complainant] to finally not be able to believe what she'd been told, was that earlier trauma was normal for her family, her family was special, that was a place in the family [...] the family was so special that this was a special incidence and that was what her purpose was, to serve other people's needs, and she was fearful of it and frightened and horrified and all of those things, but she felt that was her job and that was just the way it was.
When the Doha incident [… which] was unconsensual but wasn't violent, when that was frowned upon and people were outraged and they wanted legal action, she could no longer deny that what was going on at home, which was horrifyingly worse was - she could no longer deny that it wasn't wrong and it wasn't illegal and she wanted to escape […]
With the greatest respect to the psychiatrist, the jury could not reasonably have applied this theory to resolve the manifest improbability that the claimant had endured the depredations of her father for over a decade without reporting them because she thought his conduct was normal - and that she never learned otherwise from her high school education, from discussion with her sisters or friends or from reading information in the media or on the internet.
I have already referred to the fact that, as well as the complainant's sisters, there were numerous witnesses close to the family who never observed any outward sign that would be consistent with the complainant undergoing the abuse at home that she claims was occurring.
Late in the evening of the same day the complainant injured her head in circumstances from which it could be inferred that this was self-inflicted. Ms Frey said of the complainant as at May 2007:
I think [she] got very anxious before competitions. […] [She] had had some incredibly good results as a very young athlete and had been the dominant athlete of her age group for a number of years and I think - I felt she was feeling more and more the pressure of hanging onto that [mantle] of being the best athlete of her age group, so I thought she was feeling a lot of pressure around competition.
Ms Frey said that as a result of what had occurred in Canberra the national organising body for athletics advised WG and KG that the complainant should not take part in a forthcoming World Youth Championships. The complainant was withdrawn from the team. Ms Frey said:
[The complainant] made mention a couple of times subsequent to that in my later dealings with her that her father had made her life hell after that decision, after she had been withdrawn from the team it had been a terrible time for her.
The next indication of deteriorating mental health was in late December 2009 at the Falls Creek training camp. After a poor session in which she came in behind other girls, the complainant "became withdrawn from the group" and could not be persuaded by Ms Frey to join social activity in the evening. That night she took an overdose of Panadol and was "staggering around and sort of quite incoherent". Ms Frey proposed that she would call WG, who was staying nearby. The complainant "was very agitated and asked me not to" call her father. Nevertheless he was called and when he attended he was angry with the complainant and unsympathetic.
Ms Frey said that the next day the complainant "fell to the ground clutching her stomach and having some sort of anxiety and panic attack". She showed Ms Frey some deep lacerations of her wrist, concealed under a band. She said that she had cut herself. The lacerations were in early stages of healing. Ms Frey gave evidence of the following further behaviour of the complainant at the Falls Creek camp, up to 2 January 2010:
[She] said she was really uncomfortable being with her father, she couldn't communicate, the lines of communication are broken down. Her father was very angry at her Panadol incident, that she really didn't want to spend any time, any further time with him.
[She] mentioned repeatedly that she was uncomfortable and didn't want to be in her father's care, that she was sick of the control he exerted on her and the pressure he put on her.
[On one of the later days of the camp, the complainant] wasn't in a good state and it deteriorated in the evening. [In the early evening] I went to look for her and she was sort of curled up in a foetal position on the floor of the apartment very, very distressed.
[That evening the complainant] said that her dad had touched her inappropriately at different times when he massaged her and she said that, "Sometimes when he massages me he touches me in the wrong places" and she indicated her pubic area.
AG gave evidence of the three sisters massaging WG in the loft of her grandmother's home at Tanglewood, apparently being the same incident as described by the complainant (see [104] in the Chief Justice's judgment) and by their grandmother (see [466]). The complainant said this occurred in 2002 or 2003 and the grandmother attributed it to either 2001 or 2002. AG said she could not recall how they came to be massaging WG "around his penis and stomach area" on this occasion because "it was so frequent that we often would massage him".
WG's responses to AG's accusations about indecent massaging in the recorded phone call of 23 February 2012 (see [594]-[595] in the Chief Justice's judgment) were implicit admissions. WG's attempts in oral evidence to place a different interpretation on the phone conversation were implausible and could have been regarded by the jury as discrediting him generally.
Ms Clarke, whose evidence has been referred to at [1652] and [1653] above, observed that WG took his daughters away separately to massage them when she stayed at The Channon. She did not witness the massages.
AG said that on an occasion in the period 2004 to 2005 she wanted to see whether CG was being touched by her father in the same way as he had touched AG. AG secretly observed CG being massaged and saw that her vagina was exposed and WG's hands "were both there". AG was "furious" and went to find her mother and tell her what was happening. There was no clear reaction from KG and she "seemed completely absent". Despite AG's indignation she was not prepared to confront WG directly about it. AG said, "I would be way too scared".
WG travelled with AG to an athletics meeting at Campbelltown in early 2004 (at close to 16 years of age). AG said that while they were staying in a hotel after her race, her father massaged her, naked, and caused her to have an orgasm. She said that by this time she was beginning to feel "really uncomfortable" with her father's massaging. She did not want WG touching her anymore and she was aware "it wasn't the right thing". On a date that appears to have been in 2005, while AG and her father were staying with her grandmother, he touched her breasts during a purported massage. AG became angry and ran into her grandmother's room. The grandmother gave evidence substantially corroborating this event (see [472] in the Chief Justice's judgment).
AG said that this was the last time WG massaged her. She described a subsequent occasion when she and her father were living with the West family on the Gold Coast while she was completing her second-last school year (2005) at St Andrew's Lutheran College, Burleigh Heads. AG refused to be massaged by her father. He became extremely angry, took her into the bathroom and struck her four times across the face, breaking her nose.
On the basis of AG's evidence, if the jury accepted it, there was reason to find it not improbable that WG would have similarly touched the complainant in an indecent manner, for example as alleged in count 22, and/or that he would have caused her to touch his penis, as alleged in count 23. There is nothing inherently improbable about offences of that nature having been committed against the complainant. The conduct of WG described by AG was relatively subtle, secretive, carried out under pretext and it involved no force or cruelty. Depraved as this touching may have been, it was purely sexual rather than gratuitously violent or sadistic. The sexual abuse of AG was in marked contrast to the acts described by the complainant of inserting tools, subjecting her to degradation through oral intercourse and so on.
It is significant that, although AG was also afraid of her father, she did not hold him in such fear that she felt she had to submit to the massages when her discomfort with the way he touched her reached a certain level. AG's description of her eventual resistance to WG from about 2005 (when the complainant was 13 and AG was 17) is inconsistent with WG having caused his family terror to a degree that would have prevented the complainant speaking to others of the alleged gross abuse she was suffering.
At the beginning of the 2006 diary, against the date 26 December 2005 there is an entry "Massage Dad". The same note or simply the word "Massage" appears at least once and sometimes twice or more in every month for the rest of the year. There are no such entries in the 2007 journal. In 2006 the following entry appears:
11 April - Massage Dad. Remember, not to [sic] hard.
There are numerous entries, only in the 2006 diary, referring to "Dad" and "wee". The following are examples:
25 January - Tolls as he didn't wee.
20 February - Got box today, make Dad wee next time or box agane [sic].
4 April - Dad didn't wee, use other way tonight.
5 April - Dad wee so no tolls!!
31 July - Didn't wee last night.
5 August - Didn't make him wee.
14 August - Didn't wee.
16 August - Dad weed last nite!!
7 September - Didn't make him wee. He got new tolls, really hurt […].
30 September - Dad was happy after making him wee!
10 September - Massage / Make dad wee.
26 December - Didn't make dad wee, really angry.
The complainant said that until July 2007 (count 70), on the occasions when her father ejaculated she thought that he was urinating. Within the date range of the above entries the complainant gave evidence of only three instances of penile-oral intercourse by her father, in which she may have seen that he either did or did not ejaculate, or "wee"; namely, counts 52, 53 and 57. The diary entries do not provide material corroboration of any of those offences. The interspersion of the "wee" entries with numerous references to the complainant massaging WG means that they are consistent with the possibility that throughout this year WG was procuring the complainant to massage him around his erect penis and cause him to ejaculate, as described by AG.
The 2006 entries include many references to "tolls" and to the "shed". In a few instances the entries are expanded to refer to one or more nights, in connection with the "shed". There are also some references to "the box". None of these entries are sufficiently detailed or coherent to provide material support for the complainant's description of depraved and sadistic acts by WG. On the assumption that this is a contemporaneous record, as the jury would have been entitled to find, the repeated use of the words "tolls" and "shed" contributed nothing over and above the complainant's own evidence to prove the offences alleged to have occurred during 2006.
The 2006 counts are that WG performed cunnilingus on the complainant twice (counts 49 and 55) and fellatio three times (counts 52, 53 and 57); that he forced objects into her vagina on seven occasions (counts 50, 51, 54, 58, 59, 60 and 62) and into her anus on one occasion (count 61) and that he had penile-vaginal intercourse twice (counts 56 and 63). If any of this had occurred - coupled with binding the complainant with rope and barbed wire, threatening her with death and confining her in a box designed to hold diving equipment, as she asserted - and if the complainant thought to make reference to it in a diary, more content could be expected than is in fact to be found in the 2006 entries.
The words carved by the complainant in the timber work of the shed are similarly equivocal and could not have contributed to overcoming the inherent improbabilities in the complainant's evidence. The finding of old tools, barbed wire and underpants on the property was of equally negligible weight against the difficulties in the way of accepting the complainant's evidence.
There was nothing to support the complainant's allegations against her mother beyond the complainant's own word. The evidence adduced in the Crown case that KG at times drank to excess was contradicted by other witnesses and in any event provided no corroboration of the complainant's allegations against her mother of utter depravity. This feeble attempt to bolster the complainant's allegations paled to nothing against Mr McGuilverey's unchallenged observations of KG's mothering and character, made from within the household.
Count 15 concerned KG instructing the complainant at the age of 8 how to masturbate herself, in the presence of her sisters who also received the instruction. KG touched herself by way of demonstration. This was an aggravated act of indecency with a maximum penalty of 7 years. It was a grossly inappropriate form of sex education for an 8-year-old girl but it did not involve any encouragement of her to engage, at any time, in sexual activity with another person. In my view an indicative sentence of 4 years and 6 months was manifestly excessive and half of that, being 2 years and 3 months, would have been appropriate.
Count 18 occurred on the same night as count 15 and consisted of KG touching the complainant inside her vagina to indicate how sexual intercourse should feel. This was in the context of KG talking to the complainant about what would make sexual intercourse with her better for WG. However this conduct was not charged as aiding and abetting any principal offence by WG, although the jury accepted that he came to the complainant's bedroom later the same night and had penile-vaginal intercourse with her. The digital penetration comprised in count 18 was not for KG's own sexual gratification. What made it serious was the depraved sexual education to which it was directed. In the circumstances in which the offence occurred and taking into account a maximum penalty of 20 years, the indicative sentence nominated by her Honour of 10 years was excessive to a very significant extent. An indicative sentence of 4 years would have been appropriate.
Count 38 was the most serious offence committed by KG, being sexual intercourse by digital penetration of the complainant, aged 12, when the two of them and WG were all on the bed together and WG was performing other sexual acts on the complainant. The maximum penalty for count 38 is 20 years and the standard non-parole period is 10 years. Serious as this sexual assault was, it is apparent that WG was directing the actions of both his wife and his daughter and that KG's active participation in the whole scene was limited to this single act of digital penetration. I do not accept that it warranted an indicative sentence of 12 years with a non-parole period of 8 years and 6 months. A head sentence of no more than 6 years with a non-parole period of 4 years should have been indicated.
Count 67 was an aggravated indecent assault that occurred when the complainant, aged 15, slept with her mother during an absence of WG overseas. On the complainant's evidence, KG was so affected by alcohol on this occasion that it had been necessary for the complainant to assist her to the bedroom. She said that KG touched the outside of her vagina and rubbed it. The maximum penalty is 7 years and the standard non-parole period is 5 years. The objective seriousness of this offence sufficient warrant the learned trial judge's indicative penalty of 4 years with a non-parole period of 3 years. Half of that would have been appropriate, being 2 with a non-parole period of 1 year and 6 months.
KG was convicted of six further offences against the complainant, one offence against AG and one against CG. In considering an aggregate sentence of course there must be taken into account the totality of the offending against the complainant and the fact that there were two other victims. The latter consideration would make a minimal contribution to the aggregate because the offences concerning the complainant's sisters were counts 16 and 17, committed at the same time as count 15 when KG instructed all three of her daughters together with respect to masturbation.
The aggregate sentence arrived at by the learned trial judge necessarily involved a degree of notional accumulation between the indicative sentences, the highest of which were of 12 years, 10 years and 8 years. Commencing with the lesser indicative sentences that I would adopt for five of the most serious counts and otherwise accepting that the learned trial judge's indicative sentences were within her discretion, an aggregate of 10 years with a non-parole period of 7 years would properly reflect the overall criminality of the charges proved against KG. That aggregate sentence involves an adjustment of the ratio of the non-parole period to the head sentence to reflect the learned trial judge's finding of special circumstances, which there is no reason to disturb.
I adopt Fullerton J's observation that, in assessing the impact of KG's offences upon the complainant it was a significant challenge for the sentencing judge not to conflate the impact of WG's offending. In the context of shocking abuse by KG's husband, as found by the jury, it must also have been very difficult for the sentencing judge to resist carrying over his depravity and subconsciously attributing to KG a broader complicity than was alleged in any of the offences for which she was to be sentenced. With due respect to the learned judge, the excessiveness of five of the indicative sentences and of the aggregate appears to reflect that some such carrying over may inadvertently have occurred.