District Court New South Wales Medium Neutral Citation: R v Jones (No 2) [2021] NSWDC 591 Hearing dates: 18 October 2021; 19 October 2021; 20 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: On the limited evidence available the defendant is Not Guilty of Counts 1 to 12. Catchwords: CRIME - Indecent assault person under 16 years of age - multiple counts - two complainants MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing - principles to be applied MENTAL HEALTH - Special hearing - defendant aged 75 – defendant has significant cognitive impairment - dementia - alleged offences against two daughters - hearing using AVL - tendency – complaint evidence – long delay- significant disadvantage - context evidence - good character - assessment of evidence - application of principle Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Evidence (Audio and Visual Links) Act 1998 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health (Forensic Provisions) Act 1990 Cases Cited: De Belin v R; Sinclair v R [2020] NSWDC 487 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 IMM v The Queen (2016) 257 CLR 300] [2016] HCA 14 R v Jones [2020] NSWDC 655 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 TO v R [2017] NSWCCA 12 W v R [2014] NSWCCA 110 Category: Principal judgment Parties: Mr Jones (the accused - a pseudonym) Director of Public Prosecutions Representation: Counsel: Mr Z Khan (for the accused) Mr D Noll, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Boehm & Associates (for the offender) File Number(s): 2018/00320930 Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used. JUDGMENT Pseudonyms 1. Pseudonyms have been used for the names of the defendant and the complainants who were at the relevant times children. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Introduction 1. Mr Jones is 75 years old. He has dementia and other health problems. He has been charged with a number of indecent assault offences against two of his daughters. The offences are said to have occurred between December 1980 and December 1983. On 24 February 2020 I found him unfit to be tried: ss 11-14 Mental Health (Forensic Provisions) Act 1990 (now repealed): R v Jones [2020] NSWDC 655. The matter was referred to the Mental Health Tribunal who then determined Mr Jones would not become fit to be tried within 12 months. 2. The Director of Public Prosecutions (DPP) then advised that further proceedings would be undertaken against Mr Jones: s54 Mental Health and Cognitive Impairment Forensic Provisions Act 2020. An application for a permanent stay of proceedings was refused: R v Jones, unreported, Wollongong District Court, 9 February 2021, per Judge Hoy SC. In accordance with Part 4 Division 3 of the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) a special hearing had to be conducted by this court. 3. On 18 October 2021 that special hearing commenced in Wollongong District Court. I have to determine whether on the limited evidence available whether Mr Jones committed one or all of 12 serious charges. Counts 1 to 3 relate to his younger daughter BW. The 9 remaining counts relate to his older daughter JW. 4. Mr Jones' dementia is a cognitive disorder: s5 the Act. He has bail and attended the proceedings assisted by his wife from their home in Queensland. He appeared from that location via video link. Given the restrictions in place due to the COVID-19 pandemic no objection to a hearing using Audio Visual link (AVL) was made and a direction was made that he not appear in person: Part 1B and s 22C Evidence (Audio and Visual Links) Act 1998. The legal representatives also appeared via video link. A special hearing 1. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. If it is appropriate a court can, as here, modify its processes to facilitate the effective participation by the defendant in the special hearing. 2. The fact that the defendant has been found unfit to be tried for an offence is presumed not to be an impediment to the person's representation. Mr Jones is represented by Mr Khan, Counsel and Ms Boehm, solicitor. 3. A special hearing must not prejudice the defendant any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include: 1. To ensure that justice is done, as best it can be in the circumstances, to the defendant person and the prosecution, and; 2. To give a defendant person an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system. 1. At a special hearing the defendant is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which a defendant may enter a plea of either guilty or not guilty. 2. I must reach my verdict on what the Act describes as the limited evidence available. The verdicts open to me given the way this matter has proceeded are: 1. not guilty of the offence charged; 2. that on the limited evidence available, the defendant committed the offence charged: s 59 (1)(a) and (c). 1. If I find Mr Jones not guilty then that will be the end of the matter. If however, I find that on the limited evidence available, he did commit the offence or offences charged, it will be my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what term would have been appropriate. Other non-custodial options are technically available. 2. If I nominate a limiting term the Mental Health Review Tribunal will continue to review him and make appropriate recommendations. My duty at present is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that Mr Jones committed an offence charged. General directions A special hearing 1. As special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings I must record all of the principles of law applied and each of the factual findings relied upon in reaching my verdicts, paying heed to all of the warnings that a jury would be given had it been empanelled. Onus 1. The prosecution must prove each element of the offence beyond reasonable doubt. Mr Jones has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case on a count, the defendant must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count. 2. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a reason in the evidence for that outcome. If I entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that doubt must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally and when deciding whether or not there was a reasonable doubt about her evidence with respect to other counts. 3. During the course of the hearing Mr Khan suggested to some witnesses that the allegations may have been fabricated and concocted. Possible reasons for concoction were put in his questions and later in submissions. Mr Jones bears no onus of proving the existence of a motive for the fabrication of the allegations against him; nor does he have an obligation to provide an answer to such a question or prove there was fabrication or concoction. I should not approach my task by assuming that a witness is telling the truth merely because I reject a reason advanced for concoction or because there is no apparent reason for them to have made up these allegations. Elements 1. The counts in the Indictment are said to have occurred between 31 December 1980 and 31 December 1983. On 14 July 1981 s 76 Crimes Act was repealed and replaced with s 61 E(1) Crimes Act. Both sections had the same elements and the same maximum penalty. Section 80AF Crimes Act provides that in matters such as this "a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred." 2. During the course of the trial Mr Noll, Solicitor Advocate for the Director of Public Prosecutions, sought and was given my leave to amend the dates for Counts 4, 5 and 6 from 31 July 1981 to 1 July 1981. Mr Khan did not object, 3. There is no dispute that if an incident occurred, it occurred at Bulli or Corrimal within the time period alleged. The age of the complainants at the relevant times is not in dispute. If the acts are proved to have occurred the age related element of the offence will be established. No issue about consent arises as a child under the age of 16 cannot consent to an indecent assault. 4. Accordingly, before Mr Jones can be found guilty of counts alleging act of indecency toward a child I must be satisfied beyond reasonable doubt of each element but in particular that: 1. He assaulted a complainant; 2. The assault was indecent. 1. "Assault" includes, relevantly, the deliberate touching or the application of force to the complainant, without her consent and without lawful excuse. No issue about consent or lawful excuse arise from the facts of this case. The assault can involve the same action as the act of indecency. 2. "Indecent' means contrary to the standards of ordinary and respectable people in this community. For an assault to be indecent it must have a sexual connotation or overtone. It is not in dispute that if the incidents occurred as alleged by the prosecution they would be contrary to the standards prevailing in our community. Complaint/Delay in complaining 1. The Prosecution relies upon what each complainant said after having been - as she said - indecently assaulted by the defendant, as further evidence that the acts alleged did occur. There is no doubt complaints were made but the question I must ask is: does it support the Prosecution case because it makes the complainant's evidence more believable? I may also consider if there is consistency between the complaint and the allegations made against the defendant. Further, I can use what a complainant said about Mr Jones' conduct toward her as some evidence of the truth of what she said - that is, as evidence that he did sexually or indecently assault a complainant in the way she alleges he did. 2. Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions. I need to consider the complaints in context noting what was said to whom and when the complaints were made. 3. I note that, given each complainant's age and personal history, there may be good reasons why she did not raise the allegation immediately or for some time thereafter. A failure to do so does not mean that the allegation is false: s294 Criminal Procedure Act 1986. Tendency 1. The prosecution, by notice, asks that evidence given by the respective complainants be cross-admissible in the trial relating to them and the other. Ordinarily where counts relating to multiple complainants are heard together the evidence in relation to one is not able to be used and is inadmissible in the case of the other. And, I would have to take great care not to allow a finding in relation to one complainant to influence my determination in relation to the other by a process of false reasoning that - because a defendant did A he must have done B. 2. An exception to that general rule applies if after proper notice is given the prosecution allege a tendency in Mr Jones to act in a particular way or have a particular state of mind. And that tendency and state of mind was manifest when each of the counts occurred. They are: 1. A tendency to have sexual intercourse or attempt sexual intercourse with female children at his residence when he was alone with them. 2. A tendency to indecently assault female children at his residence when he was alone with them. 3. A state of mind to have sexual interest in female children who visit his residence. 1. The defence accepted that in all the circumstances such evidence is cross admissible. Their response however is that it would not assist in my determination of the issues. 2. Where there is no direct evidence about either the alleged tendency or state of mind on a specific occasion, I can have regard to all the other evidence in the trial to reason by way of inference or deduction. If there are other reasonable explanations available these must be considered. Further, even if I accept one or more allegations it would be wrong to reason that just because Mr Jones has done some things he was more likely to have committed the offences charged. It would be completely wrong to reason that, because Mr Jones has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences charged. 3. The Prosecution say that I will be satisfied Mr Jones had this sexual interest and acted on it as alleged making it more likely that he committed each of the offences charged in the indictment. 4. However, if nothing happened there can be no evidence capable of showing the state of mind alleged or any alleged tendency. The suggestion is distraction, an allegation, nothing more. I don't work backwards and presume a tendency. Rather, I go to the evidence, examine it carefully or scrutinise it carefully. Before I can use the evidence of other proved counts in the way the Prosecution asks I must make two findings. 1. That one or more of those acts actually occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon actually took place. 2. If I do find one or more of those acts alleged as a count occurred, then I must go on to consider whether, from the act or acts I have found occurred I can then infer Mr Jones had the tendency and state of mind alleged. If I cannot draw that inference, then I must put aside any suggestion that Mr Jones had a sexual interest in any or all of the complainants or a tendency to act on that interest. 1. That an inference could be drawn is not the test - if there are other alternatives or inferences reasonably available, inferences that are consistent with Mr Jones being innocent - then the prosecution has not proved its point. The evidence must not be used in any other way. Assessing the Evidence 1. The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial, as it involves drawing inferences from proved facts. I may not, as a matter of law, find the defendant committed an offence unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than he did commit the offence. 2. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments. 3. There is always a danger that when attempting to recall events from many years ago that the recall is not of the events but of a later "memory" of the event: a memory that can be influenced by many factors, including what was said by others or other experiences. This is particularly so if one is trying to recall events from childhood when at the time you had insufficient knowledge or experience to know what was happening or why. In such situations a witness can honestly believe what occurred is correct but be completely wrong in that belief. 4. I note that for most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. 5. I must ask myself whether the evidence discloses a real risk of contamination or concoction such that it gives rise to a doubt or deprives a complainant's evidence of probative value or renders it inherently implausible or unbeleivable. That said, it is far from unusual, as occurred here, for those who have been called as prosecution or defence witness to discuss events such as this and compare notes; particularly when trying to work out a chronology of events. Possible Inconsistency 1. When assessing the evidence I must consider whether or not any differences in each complainant's account are important to my assessment of their truthfulness and reliability. But when I do so I must note that the experience of courts over many years has shown that; trauma, if it was suffered by a complainant may affect people differently and that both truthful and untruthful accounts of a sexual offence may contain differences. This is because people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. It is thus relatively common for there to be differences in accounts of a sexual offence: s 293A Crimes Act 1900. Context 1. Both complainants gave evidence of incidents other than those set out as counts in the indictment. This "context evidence", is before me for a limited purpose only. It is not evidence that Mr Jones committed the offences specified in the indictment. I remind myself my task is confined to considering whether the prosecution can prove beyond reasonable doubt that Mr Jones did commit one or more of those specific offences. 2. Even if I accept other incidents occurred I cannot substitute evidence of Mr Jones' alleged conduct on any other occasion for proof of his guilt of the a specific count. Nor can I use the "context" evidence as a general disparagement of his character. The "context evidence" may however help explain what may otherwise be puzzling or inexplicable and enable me to realistically understand the allegations made by a complainant; allegations that are in dispute. Here, for example; to explain that a complainant acquiesced to sexual activity because she had become conditioned to do so. Delay 1. Although she told her mother in 1985 JW did not formally report the matters to police until 2018. BW did not complain until after JW. 2. Both the delay of itself and the subsequent decline in Mr Jones' cognitive capacity has impeded the ability of those appearing for Mr Jones to defend him by testing the prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt. 3. The delay means that evidence cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that a complainant's memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. Her inability to recall precise details of the circumstances surrounding the incidents makes it difficult for to defend and to throw doubt on her evidence by pointing to circumstances which may contradict her. Had Mr Jones learned of the allegations at a much earlier time he may have been able to recall relevant details or find items of evidence that might have either contradicted a complainant and or supported his case; which could have been used by his counsel in cross-examination of a complainant. Many records that would have been made at the time of the allegations are now unavailable. It would also have been possible to check whether records that would ordinarily have been made had a complainant's account been accurate were in fact in existence and draw conclusions from their absence. That reasoning process is unavailable to the defendant. 4. Mr Jones has thus been put into a situation of significant disadvantage which here I find, prejudiced the conduct of his defence. As a result, I must give the prosecution case the most careful scrutiny, bearing those cautions in mind. Character 1. There is evidence from Detective Senior Constable Parsons that Mr Jones has no criminal convictions of any relevance. Other witness spoke of his good character. I am entitled to take that evidence of good character into account in his favour when I consider whether the Prosecution has proved an offence beyond reasonable doubt. I am entitled to reason that a person of good character is unlikely to have committed the offences charged. His good character does not provide any kind of defence. It is only one of the many factors which I take into account in assessing the evidence and determining whether I am satisfied beyond reasonable doubt a count or counts have been proved. Section 144 Evidence Act 1. During the course of the hearing I raised with counsel matters of "common knowledge" and s 144 Evidence Act. At times it became apparent that because of my age I had 'common knowledge' of matters that were not known at all by younger counsel. For example - that DNA was only used in police investigations from the late 1980's in the UK and in not Australia until much later and that CCTV was not in use let alone as ubiquitous as it is today. 2. Accordingly, during the hearing I gave notice to the parties that I was aware as a matter of common knowledge that: 1. Police, hospitals and other agencies did not keep every paper record from the 1980s. 2. That the police COPS computer system was not operational in the 1980s and not every paper record was transferred to that system. 3. That not every initial police interaction with a complainant in a sexual assault matter was recorded, even to this day. 4. The location of the Wollongong suburbs and schools mentioned in evidence. The evidence Complainant BW 1. BW told me that after her parent's separation in 1981 she went to live with her father at his sister's home in Bulli. She shared a room with her father. She said he was working at the coalmine; as shift worker - four weeks on nights, four weeks on day shift. Their room had an old fashioned single bed she thought had come from her grandparents and a fold up bed she referred to as "the cot.' 2. She told me she slept mostly in the single bed but from time to time, she would sleep in the cot. Count 1 1. The first occasion she recalls an incident occurred she was in the old fashioned bed. Mr Jones took off her pyjama bottoms down to her ankles and lifted her pyjama top. He then started to rub his penis up behind her back, towards her backside, and then towards her vagina and then rubbing it along her vagina. He did that for some time and, eventually, he moved his penis and masturbated himself until he ejaculated on her back and then on the bed. He then cleaned it up. He then pulled her pyjama bottoms back up and her top down. He said something. She can't remember the exact words he used but she recalls he tried to soothe or console her as she was crying and very confused. 2. She later said that each time he touched her he would fondle her breasts as well. That, that happened on the first and second occasion at Bulli and he continued to do it. Count 2 1. The next occasion BW recalled she was also in the same bed, and that he did the same thing with his hand and penis; starting on her back and then going towards her backside and onto her vagina as well as touching her breasts. 2. On this occasion she recalls he tried to placate her with soothing words and tried to make her feel comfortable. He told her that she was "dear to him" and "really precious" and words along the lines of "he did love me." Those words she said were different than any other occasion: TT page 6. Count 3 1. On the third occasion that she recalls Mr Jones asked her to come and sleep with him in his cot. There she was positioned in the same way again, with her back to him. When she was asked for specifics of the third occasion, she answered "A. Only that, again, it was relative to him not being on night shift, and, yeah, like I said, he got me out, he coerced me out of my own bed, saying that all he wanted to do was to cuddle me in his cot, and to convince me that going into the cot with him would be fine even though I was very nervous, obviously, and not trusting of his words. He made every effort to reassure me, I suppose, that I - he just wanted to cuddle me:" TT page 7 1. She moved from the old bed into the cot with him. He took her pants down and lifted up her top and started fondling her. He then rubbed his penis on her backside and on her vagina. He then masturbated and ejaculated. On this occasion she said the weather was quite warm and she had just started High School. 2. Not long after that she asked to go back and live with her mum. She told me of some incidents that occurred with her older sister JW. The cut heel incident with JW 1. She told me of an occasion when she went to the unit her sister shared with Mr Jones in Corrimal. She only went there this one occasion. She distinctly remembered it was near JW's birthday, "possibly her 13th:" TT 9. Mr Jones wasn't there but JW and with two similar age family friends were. She named them. She described an incident where the girls found a porn video and how JW had trodden on a glass and cut her foot and heel badly. JW needed to go to hospital. At the time she said her father was upstairs with the two visiting friend's mother. This incident occurred 2 years before JW returned to live with the rest of the family. She said JW returned to her mother's home at Dapto when JW was aged around 16: TT 12. An argument with JW 1. BW told me of an argument she had with her sister at her mother's home in Dapto. During the argument she said JW used the "most resounding words that I recall from that time, "You have no idea what (Mr Jones) had done to me:"" TT page 13 2. Later that day she said she told her mother, "I know something's happened to her," and what she (BW) thought had happened, that JW had been abused by Mr Jones sexually: TT page 8. 3. BW later told me that after her mother had talked to JW "that's when she told me that [JW] had told her that [Mr Jones] had abused her:" TT page 14. 4. She then said: "I, I was like, "I knew it. I knew it. I knew that something had gone on," and that's when I, you know, I said to her mum, "That's what, it happened to me too. He touched me too," and - yeah. Yeah." TT page 14. 1. She told me: "I was trying to go into some detail about what he's done, remembering the circumstances and the time and the place and my mum became very overwhelmed at that point in time and I could tell that she was finding it difficult to cope with the information that she was receiving and hearing from me and I decided to not proceed in telling her anything further at that point": TT page 14 1. She said it wasn't till many years later that they discussed it again. An interrupted phone call 1. BW told me of an incident when she was listening in on another line from another room to a telephone call between her mother, AM, and Mr Jones. Her mother accused Mr Jones of abusing JW. She recalled her father saying in response to that accusation "Oh, well, what if I did?" TT page 16. 2. When her mother asked him "Did you abuse BW as well? He denied it. She said she interrupted the call at this point by yelling "You're a liar. You're a liar. You did touch me." TT page 16. Other disclosures 1. She told me she had told her year master at school and then later her counsellor, Beth Robinson about the abuse. Cross-examination 1. In response to Mr Khan's questions BW told me: 1. That the only thing that she did discuss with JW was that the abuse for both of them had started at the same place. 2. JW had told her she had made a statement 15 years beforehand but she withdrew it because she couldn't proceed: TT page 22. 3. Her memory of the plan of the house at Bulli was the reverse of that shown in Exhibit O, as BW said the room she and Mr Jones occupied was at the front of the house on the left-hand side viewed from the street. 4. That she had been at the Corrimal unit the day JW cut her heel She disagreed with Mr Khan's suggestion she was not there: TT page 40 5. That JW did not tell her she had been abused by Mr Jones but "I already knew… just knew as a sister." So "I told mum what I thought had been happening to [JW]." TT page 43. 6. She confirmed that she didn't go into any detail she was taken to her statement (MFI 1) where she said after the fight with JW and the conversation that she had with AM that night about what had happened to JW, she said she had "started remembering things" from when she had been living with Mr Jones. Not long after these memories started occurring, she approached AM one night and tried to have a conversation with her about them. She then said she disclosed what had happened to her when she had lived with Mr Jones. 7. She was taken to the admission she said was made by Mr Jones. She agreed that the only words in her statement were that eventually he said something like, "Oh well:" TT page 49. 8. She was taken to her interruption of the overheard phone call where at paragraph 24 of her statement, all that is recorded is "Bullshit, you're a liar." She agreed that was all that was set out in her statement: TT 49 & 50. The order of the incidents 1. Mr Khan took her to her police statement where it stated that the second incident, the second count did not, in fact, take place in the same bed. BW's response was "I have contradicted myself:" TT page 33. 2. He also took her to her statement where she said Mr Jones had to stop because she was crying so hysterically that he could not go on. Something not said in chief. She then said her Aunt and Uncle wouldn't have heard because they left the home to go out before she went to bed; something she had not said in evidence or in her a statement. Other questions 1. I asked her if there a window in the room at Bulli. She answered "There was, that faced towards the street, like, from an - if you stood at the window, you would see the streetscape, your Honour." [I note that the window of the spare room does not face the street: Exhibit O.] 2. In re-examination Mr Noll asked BW: "There were a number of occasions during cross-examination where you have agreed with Mr Khan that you either have not given evidence consistent with your statement or where you've contradicted yourself. Have you got an explanation about why that may be?" 3. She answered: "Nerves, Mr Noll. I've been very nervous in attending the proceedings today. I normally have an idyllic memory, but nerves and stress can do away with the best of memories." She then corrected herself and said the correct word was 'eidetic.' TT pages 52 - 53. Complainant JW 1. JW told me that BW only lived at Mr Jones' sisters' house in Bulli for a week to two weeks. After she returned JW then went to live with her father at Bulli. She was in year 7 or 8 at school. She stayed at her Wollongong High school for a "couple of weeks maybe" and then went to a High School near the Corrimal unit. She said her father would drive her to school from Bulli and pick her up, 2. She described the house at Bulli and the room she stayed in with her father – "just a normal room, two single beds in it." Count 4 1. She told me that on the first night that she stayed at Bulli her father; came into the bedroom, tucked her in, gave her a kiss on each cheek and told her how much he loved her. He said "everything will be all right." She said she lay there unable to breathe as he started lifting up her nightie and pulled down her underwear. She then described how he "put his penis, on my vagina and clitoris area until he was self-satisfied and then ejaculated on my stomach". She said that at the time she was too young to know the terms 'penis', 'clitoris' or 'ejaculation.' After the incident was finished she said she was told not to say "nothing to no one, that I'd go to gaol, so would he, so would mum and my family." She told me she kept it hidden for years as she believed these stories. 2. She said after the incident she cleaned herself up in the laundry area, "where the step is, big step there at the back of the house." There was a toilet there. After that she went back into bed. Count 5 1. On the second day she was at Bulli she said: "Pretty much the same routine as the night before, he come in to tuck me in, say goodnight and then it started exactly the same where he'd just pull up my nightie, pull down my underwear and do what he had to do as far as I know he never actually penetrated me and it's, … so as far as I understand it he had just rubbed himself all on my vagina and my clitoris area until he was self-satisfied. " 2. She said similar things happen on subsequent nights at the Bulli house. Count 6 1. She told me of one incident she specially remembered. She described a similar acts to that in Counts 5 and 6 - "penis always in the same area, along the vagina clitoris area and then relieved himself on my stomach." She said she was in or going to the laundry to clean herself up and she forgot about the step. Her ankle went out from under her and she sprained it. It was very painful. Mr Jones had to take her to the doctor's or hospital: TT page 81. Count 7 1. There was another incident when she again sprained her ankle. She remembers it as she came very close to breaking the ankle and had to go on crutches and missed school sports. It was "fairly soon after the first [sprained ankle] incident" She told me after dinner she got ready for bed round about the 8, 8.30 mark. Mr Jones came in to tuck her in and say goodnight. He then as he had before pull up the nightie again, pulled down her underwear got on top of her and then self-relieved himself on her stomach again. The ankle was sprained as she went off to the laundry to clean herself up. Count 8 1. JW said that after her ankle injury there was a change in the way Mr Jones assaulted her. After he came in to say goodnight, he would pull up her nightie and lifted it right off. He then pulled off her underwear. He got naked and then laid down on the bed beside her and then told her to get on top of him and straddle him. He then rubbed his penis along her vaginal and clitoris area until he was self-relieved but instead of coming on her stomach, he would relieve himself on his own stomach. In addition while she was on top of him he started to fondle her breasts and to suck on them. He then cleaned himself up with the tissues and got off the bed and he got dressed. She had no reason to go to the laundry. He'd say, "Good night" and leave. 2. Not long after Mr Jones and JW moved to a flat in Corrimal. Count 9 1. There was a possibly an important difference in JW's account of when Count 9 occurred. In opening the prosecution case Mr Noll had said that it occurred the first morning they were in the new flat however when he came to this incident in chief he asked JW; "Can you remember the first night that you spent at that flat in… Corrimal?" JW replied; "Yes, I thought it'd be like every other night but I said things changed. Yes, instead of always being in the bed with me:" TT page 94. 2. She then described how she was called to the lounge, where he said, "Come say goodnight, it's time for you to get ready for, you know, school and stuff in the morning". He was naked. She told me "… and I basically, I guess I just knew what, from there what I was expected to do. And that was to get on top of him again and yeah, repeating where he relived himself." 3. Mr Khan objected as Mr Noll led JW with this question, "You said on the first night that nothing happened?" TT 95-96. JW did not at that time seem to appreciate what was asked and responded by repeating the allegation and saying she was told "Look everything will be okay, everything will be normal - normal and fine". That you know, if I said anything to anyone that we'd all go to gaol and basically, "Good night and see you tomorrow." 4. She said this type of abuse continued like that every day. Sometimes in the night time, sometimes during the day but always in the lounge room on the lounge never in the rooms. Count 10 oral sex request 1. JW described a variation in what was asked of her. During an incident she said he held his penis: "it was quite hard and said basically I have to put my mouth over it and suck him and I just said, "No way, gross, no, not happening:" TT page 102. 2. She said he tried again but she wouldn't do it. He got impatient and said, "Right, get on top. You know what you've got to do." She then straddled him and he relieved himself. She said he asked her several times after that incident for oral sex but she always refused and told him to stop asking. Count 11 1. This incident JW said could be distinguished from the others as it was interrupted by the little girl that lived next door. She said Mr Jones was laying on the lounge naked as usual. He asked her to undress but as she did she could hear her friend calling out. She said he tried ignoring it but in the end he "got the shits about it" and said, "Just go answer her." She then came back inside and undressed again and resumed what they had been doing. Cut heel incident 1. JW told me of another incident at the flat in Corrimal. She had two girlfriends visiting. They found a pornographic video in JW's room. They put it on. It was too loud and as she jumped up to turn it down she stepped onto a glass tumbler and her heel and foot were badly cut. She said her father was called at work and she was taken to Bulli Hospital. The woman upstairs 1. JW told me her father was friends with the woman who lived in the upstairs flat. She would visit and often come in unannounced. He often left the front door unlocked when they were home. This woman, Ms VDK was called as a witness. Count 12 1. JW remembers one morning at the Corrimal flat when she walked in to her father's bedroom and found him and a woman, Ms R, in bed together. She said that "Mum and I are still friends with [Ms R] to this day: TT page 106. Ms R was not called as a witness. 2. That night as JW got ready for bed in her room, he called her, "Come and say goodnight." She saw him lying there naked. She said "… I knew to get undressed and basically get on top and straddle him and, yeah, he did what he has to do. And yeah, come on his stomach, clean himself up with tissues, I could then get off and get dressed and then would usually go into my room and get undressed and shower and then redress": TT page 107. 3. She said that his penis was touching her vagina and he was rubbing it along her vagina and clitoris area and "of course, always suckling on the breast": TT page 107. Her father's friend 1. JW told me how she would with her father visit the home of her father's friend BL. One day at a BBQ, BL sat down with and asked if she was okay and if anything was wrong. He said "I can see that your fathers maybe being a bit too friendly… Is everything okay girly?" She said "yes, everything's fine", He said "Are you sure?" She reassured him and he left the room: TT page 108. 2. After that she heard arguments and raised voices coming from to the back part of BL's lounge room area but she didn't hear anything more. Chickenpox 1. When JW was 15 she contracted chicken pox. She said Mr Jones wanted to continue to do what he had been doing but she was so itchy and scabby and, irritable from the chickenpox that she refused. There was "a big altercation, lot of swearing and carrying on." She "stormed out" of the Corrimal unit and went to a friend's house. She then went to live with her mother and siblings in Fairy Meadow. TT page 109. 16th birthday 1. She continued to have contact with Mr Jones after moving back with her mother. There were phone calls and sometimes visitation rights "cause he insisted." He was living in Balgownie at the time: TT page 111. She said she was living with her mother and sharing a room with her young brother in Fairy Meadow. This was before the move to Dapto: TT page 112. 2. JW said there was an arrangement Mr Jones would take the family to McDonalds for her 16th birthday (June 1984) but he decided at the last minute that he would take only her. They went to McDonald's, had lunch, and he took her back to his house in Balgownie. When they got there, he sat her on the lounge; he put on a pornographic movie and undressed. He lay down on a lounge and asked her to undress. She then straddled him so he could relieve himself. He was also sucking on her breast. He then cleaned himself up and took her to her mother's home in Fairy Meadow acting like nothing had happened: TT 112. Complaint following argument with BW at Dapto 1. JW told me of an argument with BW at the Dapto home after BW told her she was "Dad's favorite:" TT page 114. The house was damaged during the incident. She said she told BW to shut up and mind her own business and that she "didn't have no effing idea what she was talking about." When her mother came home her mother asked "Are you sure everything's okay, just tell me sweetheart, just tell me sweetheart what's going with you? What's going on with you?" She told me she "finally just broke and told her what Mr Jones had been doing to her for all those years." She said she told her mother "it was like a duties of a married woman." Her mother, she said; "knew exactly what I meant." TT page 115. 2. She said she "never, never" discussed what had occurred in any detail with BW: TT 198. She also told me that many years ago she and her mother went to see a Detective, called "Mario" at Corrimal Police Station. Since her 16th birthday the only time she has seen Mr Jones was at his father's and her godfather's funeral. Cross- examination 1. Mr Khan took JW carefully through each allegation and the context evidence putting to her that each incident did not and could not have occurred. In cross-examination of JW he elicited the following: 1. She had had a stroke five years ago and I had a lot of health issues. 2. She has always had a shocking memory "obviously due to stress and stuff over years." TT page131. 3. She and BW and her mother had worked out as best as they could "years and times and everything else:" TT page125. Bulli 1. She told Mr Khan that at Bulli she only used the laundry to clean herself after these incidents. She didn't use the main bathroom except for showering, although it was closer to her bedroom. 2. After the Bulli incidents Counts 4 to 8 she put her nightie fully back on and her underwear. She always had a thing about her underwear. She would go to the laundry fully clothed but holding the nightie out. 3. When the Bulli incidents were going on Mr Jones was on compensation for his back. He wasn't working. "That's why he was there and able, able to pick me up and drop me off [from school]:" TT page 137. 4. In her police statement when she detailed the oral sex incident (Count 10) she had not mentioned him holding his hard penis towards her but she said he put his finger in his mouth and sucked on his finger. She accepted that there probably might not be anything in the statement but she said it's "not something I've just made up. It's because I've obviously just recalled it:" TT 149, 5. She said "Yes, 'cause I didn't, I don't, I didn't understand what he meant by "suck on it", so that's why he showed me with his finger what he meant. I had no idea what he meant exactly. I mean, he had said what he had said but I didn't understand the request and that's why he put his finger in his mouth to show me what he meant and what I was to do." Corrimal 1. Mr Kahn took her to her police statement about Count 9 where she said: "You told them, "You know I fell asleep that night… "I fell asleep that night and nothing happened"? She answered: "Yes, I was quite shocked." TT page 144 2. She agreed that on the first night Mr Jones didn't touch her rather it was the second night and every night after that. 3. Mr Kahn put to her she had been "caught out in your lies" She "totally disagreed." TT 145. However, on my review of the evidence it seems apparent she didn't even realise she hadn't mentioned this part of her testimony when first asked by Mr Noll in chief: TT 148. Other evidence AM 1. AM is the mother of both JW and BW. She recalled that her daughters lived with their father at his sister's home at Bulli; "BW didn't last a week". When BW came home JW went home with Mr Jones that night and stayed at Bulli for some time until she moved with her father to Corrimal. AM and BW and the other children, stayed in the family home at Figtree but after it was sold with vacant possession they moved to a flat in Fairy Meadow. Later she bought a house in Dapto 2. JW was at High School in Wollongong but she left and went to High School in Corrimal. 3. She only went to the flat in Corrimal after JW had come to live with her to pick up her stuff, which Mr Jones had thrown over the balcony. Complainant JW's fight with BW 1. She recalls coming home to Dapto and finding out that BW and JW had had a fight damaging the property. It was then that JW told her, "I don't think he's a father, if he's a father he wouldn't have done what he's done to me." TT page 178. 2. AM said, "What do you mean what he's done to you?" And JW replied, "He's not a father, fathers don't do that to their children". That's when JW admitted that Mr Jones had been sexually abusing her. When asked to describe what JW said to her she answered; "She said that, "He was a bastard", and that he had "sexually abused her for years", and that she "hated his so and so guts"". TT page 180. And then that's when JW said again, "Well fathers don't do what he's been doing to me for years". 3. AM then said to JW, "You don't mean hitting though? And hitting and all that?" JW said, "No, I wish it was just that" and she said, "He's been doing to me what he'd do to you mum". And AM went, "Oh my god, okay, I believe you". AM said JW didn't give graphic details. And, that she didn't ask for her graphic details either: TT page 182. 4. After this conversation AM rang her then partner, now husband VW: TT page 181. It is an agreed fact that VM was told by AM that Mr Jones had taken advantage of JW: s 191 Evidence Act 1995. 5. AM said she took JW to counsellors. She also said that she'd "got a feeling that [JW] and I did see a detective Marshall, Marshall? Or Mario? At Corrimal:" TT page 195. An Admission 1. AM told me that before Mr Jones' remarriage she called him to say the children would not be coming to the wedding. During the conversion he said "I have touched [JW] and I'm telling you I did. And I'm sorry for that now" but he also said, "I never touched the other two:" TT 183. Her response was, "Well I hope you can live with yourself" He then said, "Can you forgive me?" And she said, "No I can't, I'm not God, I'll never forgive you as long as you live". 2. She then, with my leave, was asked to refresh her memory from her statement: s32 Evidence Act. It was apparent she had no idea why, as later, without prompting, she said of the call that BW was on the second phone in the bedroom and I heard her call out, "You f'ing bastard;" TT page 192. 3. She did not allow the children to attend Mr Jones' wedding and he did not see them after that for years. TT 192. BW's complaint 1. AM told BW that she believed that Mr Jones had abused JW. BW replied, "Well, then he picked up where he left off with me 'cause he also abused me too": TT 190. She expanded on this soon after when she said "That evening, like the same day but the evening like when I started talking to her about what had been said on the phone and what did she have to tell me about her, her side of it and I didn't dispute her:" TT page 194. AM said BW accused him of sexually abusing her and that "he'd been doing it until she like left him to come back to me": TT 195. Cross-examination of AM 1. AM said she received the call from Mr Jones before his wedding. When it was put that nothing was blurted out AM said "No that is not true, that did not happen"? 2. AM agreed she hadn't ever raised the visit to Corrimal Police Station with police until February 2021. Detective Senior Constable Kennedy 1. Detective Senior Constable Kennedy took me through his efforts to obtain documents that might assist his investigation. Most Exhibits were tendered through him. He confirmed that Mr Jones had no relevant criminal convictions. JVK 1. JVK was a friend of both AM and Mr Jones. She and her two daughters moved into the flat immediately above that occupied by Mr Jones and JW: TT 248. At that time she and Mr Jones worked at a local club. He also worked as a miner. She said JW would have be "14-13-14, something around about that age, early teens" She said she probably had a 12 month lease and moved out before Mr Jones moved out. HA 1. HA was married to Mr Jones' sister. During the relevant period they lived at the house in Bulli. 2. He was asked about the spare room but said he "really honestly can't remember what was in there." Nor was he sure what Mr Jones' shifts were. 3. He couldn't remember BW being at his house at all but she might have visited periodically over the years, he wasn't really sure. He was asked, 'If JW was staying with you, would her father have been staying with you? He responded, "Well, look, I'd just assume so, I honestly cannot remember whether there was a made up bed in there for them, whether we accommodated them, I'd assume we must have if they were both there. But I'm just so vague on the whole thing, I do apologise." 4. He could not say how long JW stayed or whether she was coming up and staying with them for the weekend or whether she stayed for a little while: TT 259. In cross-examination he was asked "Is it possible that it was only in school holidays, for example? He replied "It could be." But then he said, referring to his police statement, "I do remember her staying her with us for a little while. I don't know why that question was "No". TT page 260. 5. Mr Khan then took him to another answer in his statement; "One of the questions that you were asked by Senior Constable Kennedy was, "Do you recall any evenings when JW was asleep and she twisted her ankle?" and you said, "No, I can't recall an evening where that happened." Is that still the case; you just don't recall anything like that ever happening?" 6. He answered, "Look, I, I, I played basketball at the time and, yeah, and I was, I had a few sprained ankles so, look, I have a vague memory. I might have strapped it for her. Look, I'm, I'm not, I couldn't say yes or no but that's a vague memory of mine that I might have strapped her ankle or - I don't know …I can't say a hundred per cent for sure. I'm probably the worst witness on the planet." TT 260-261 RA 1. RA is Mr Jones' sister. She lived with HA at the Bulli house and has been in contact with her brother all his life, including in 2021. He lived in Bulli for approximately a year. He moved out in January or February probably (1982). 2. She said at Bulli there was only one bed in the spare room; her old bed from her parent's home. Mr Jones worked basically on night shift, but he was working a lot of 'doublers.' He would leave at approximately 9pm and he would get in while she and her husband were having breakfast in the morning. 3. During the May school holidays the three girls ended up staying approximately a week. They also stayed in October school holidays for a couple of nights. They slept in the spare bedroom. The two elder girls slept on blow-up mattresses and the youngest slept on the single bed. 4. RA only visited Mr Jones at the Corrimal unit a few times. He was only there for six months before moving to Balgownie. 5. She said she found out about the allegations in 2018 when Mr Jones said that the police would probably be contacting her, but they already had. Since then they've had contact two or three times a year 6. Leave was given to Mr Noll to cross-examine RA: s 38 Evidence Act. 7. She said she didn't remember if he'd received any workers compo or had time off to recover from the injury: TT page 285. 8. She said from the main part of the Bulli house to the toilet laundry there was a step down to a small little corridor, and then the step back up into the area. She said they didn't ever have a fold up bed 9. When it was put to her that JW actually lived with Mr Jones in the second bedroom she replied "I don't believe that, I don't know that. That is not true:" TT page 287 & 288. 10. She said she knew this because the girls were all at the same primary school in Figtree: "I can't see how she could possibly have got to school and back from school if she was living - she, she did not live in our home": TT 289. 11. She said Mr Jones had injured his back but it was much later, possibly about 1987, before he moved up to near Forster: TT page 292. SAJ 1. After the prosecution case closed the defence called SAJ; Mr Jones' wife and his full‑time carer. She told me she met Mr Jones in June 1983 on a blind date set up by JVK. He was a coal miner on permanent night shift. They moved in together, on 25 February 1984 in Fairy Meadow and stayed there until they moved to near Forster in 1988. Mr Jones received a back injury at work in 1986-87. 2. They were married on 1 June 1985 at Fairy Meadow. She invited the children. She said that at the time his relationship with his children "was quite good." He was always very supportive of them and if they needed anything, "he made sure they had it, he made sure they didn't go without": TT page 299. 3. She said that only a few days before the wedding, AM rang her while Mr Jones was on afternoon shift and told her that Mr Jones had molested or interfered with JW. 4. She told AM she didn't believe it but if she believed it, she should go to the police. It was a very brief phone call "cause I was shocked." When Mr Jones got home he said, "What's up?" She replied, "I've had a phone call from (AM) and she said you've interfered with (JW)", She said, "You need to ring her". 5. SAJ told me he was "stunned… totally taken aback" He then rang AM. She was in another room and couldn't hear the whole conversation; but she could hear bits and he was denying it: TT page 300. 6. After the call she said he was so upset and shocked, he was almost in tears. 7. Mr Khan asked her "What has been your reaction to these allegations in relation to the man that you've been married to for the last 36 years?" She answered "I don't believe them. I don't believe them at all:" TT page 302. 8. When asked about Mr Jones' character then and now she told me "He is the most gentle caring man who has fully supported me…a very moral person" she said she had never had any concerns about his interaction with young teenage girls. She said they had spoken to BL, JVK and RA. Chronology * 19 October 1970 - Mr Jones and AM marry: Exhibit F. * 6 June 1968 - JW born: Exhibit J. * 2 January 1970 - BW born: Exhibit E. * 27 June 1972 - younger sister born: Exhibit F * 5 February 1980 - younger brother born: Exhibit F. * 27 February 1981 - formal date of separation: Exhibit F. * 19 June 1981 - Mr Jones at Bulli: Exhibit G. * 19 June 1981 - AM and family living in Wollongong. * 8 July 1981 - family home sold: Exhibit G. * 2 February 1981 - JW in years 7 High School in Wollongong: Exhibit K. * February 1981 - BW in years 6 in Fairy Meadow: Exhibit K. * 31 July 1981 - JW leaves High School in Wollongong to "Bulli": Exhibit D. * February 1982 Mr Jones moves out of Bulli: RA - TT 273. * 25 February 1984 Mr Jones and SAJ move to Fairy Meadow - evidence TT 296 & 305 (RXN) * June 1983 - Mr Jones living in Balgownie: SAJ - TT 295. * 6 October 1983 - Marriage dissolution Mr Jones' address given as Balgownie: Ex F. * 6 October 1983 Marriage dissolution AM's address given as Fairy Meadow. States children living with mother: Ex F. * June 1983 - Mr Jones living in Balgownie: SAJ - TT 295. * 21 December 1983 - JW Medicare records have JW's address in Fairy Meadow: Exhibit H. * Date unknown - AM buys house in Dapto. Moves with 3 children but not JW * Date unknown - JW moves to Dapto from Corrimal * 5 June 1984 - JW turns 16 (living in Dapto) * 1 June 1985 - Mr Jones marries SAJ: TT 298. * 9 July 1985 - JW Medicare records have JW's address as Fairy Meadow: Exhibit H * 3 August 1988 - JW counselling records notes her attendance and "Duration of relationship 2 year 2 month relationship". "File destroyed:" Exhibit B. Submissions Prosecution Submissions 1. Mr Noll took me carefully through the chronology of events. Nothing in it, he said, contradicted what was said by either BW or JW. So far as BW was concerned he said I must take into account it was the recollection of a child who was too young to fully understand what was being done to her but what she said occurred in the spare room at Bulli was clear and concise and was of the sort of events that would stick in a child's memory. While there were some differences in her accounts of what happened on each occasion they were inconsequential. 2. He said the evidence of the call between AM and Mr Jones and BW's intervention as she listened in, led to her disclosure and that she was reluctant then, and even later, to go to the police should not diminish the power of her evidence. 3. Turning to JW's account he said that the absence of records from schools and hospitals was not a surprise but what records there were did not contradict her account of where she was and that she did live with her father at both Bulli and Corrimal from 1981 to 1983. She said whatever Mr Jones' work routine he had opportunity to do what he did before he went off to night shift or when he was on 'compo." He said HA's memory may have been vague but his memory JW was there must be preferred to that of his ex-wife Mr Jones' sister. RA's evidence JW never lived there, he said, could not be accepted. The weight of evidence was that JW moved to Corrimal from Bulli. 4. Given that there were so many instances over the 2 years or so JW and Mr Jones lived together and given they were so similar minor inconsistencies in accounts were, he said, to be expected. This is a natural product of any recollection process but each incident the subject of a count was described with particularity. 5. Mr Noll took me through each allegation. He said support for JW's account came from both her sister BW and her mother AM. There was un-contradicted evidence a complaint was made just before Mr Jones' marriage in June 1985. All the evidence confirmed there was a phone call between AM and Mr Jones. 6. That there were variations in each account, he said, showed there had not been collusion between the witnesses. Rather, the evidence showed each had distinct memories from their individual perspective. But there were some telling passages. For example; JW said she told her mother Mr Jones had treated her 'like a wife" and AM said JW told she treated her father "in the way a wife does a husband." 7. JW, he said, could be accepted as a witness of truth. She was clear in her recollections; and she made appropriate concession during cross-examination. She acknowledged her memory problems and the impact of her stroke but throughout, he said, the crux of each allegation was consistently recounted and any minor discrepancies did not diminish the power of her evidence. 8. He said the key aspect of AM's evidence was she remembered 3 emotional incidents; JW's complaint, the admission by Mr Jones during the May 1985 phone call and BW's complaint. Each memory, he said, supported her daughter's accounts. 9. Mr Noll conceded there was evidence supporting Mr Jones' good character. He said that apart from RA each gave an account that did not contradict anything said by the complainants. RA, he said, could not be accepted. She had tried to "water down" anything that might lend support to the allegations. 10. He said if I accepted a complainant her evidence would show the tendency alleged and that I would not accept there had been concoction; rather where witnesses had spoken to others this was to help put together the correct chorology of events as they recalled them from over 30 years ago. Defence Submissions 1. Mr Khan took me immediately to the conundrum posed by this hearing. I start with a man of good character, who is presumed to be innocent. Although a special hearing, even on the limited evidence available, he said, there is ample evidence to conclude that Mr Jones has always denied any offending against his daughters. He said I can make no allowance for the passage of time when it came to assessing whether the prosecution had proved a count beyond reasonable doubt. Given all the cautions I had to give myself I was left with one simple fact - memories fade – and a faded memory did not have the probative weight that an account of a recent event did. 2. He said, of everyone, Mr Jones had suffered the most prejudice because of a delay that was not his fault. If the allegations had been pursued in 1985. He now has dementia. He has no access to any work, school, hospital or doctors records that could contradict a complainant's account and support his own. 3. He asked; how can he test the recollection by each complainant when they were imprecise in time and detail; how could anyone be sure of their honesty and reliability? 4. So far as BW was concerned he urged me to reject her accounts. He said her demeanour as a witness indicated she was "switched on' to the possibility she may be contradicted. But when caught out or challenged she feigned nerves. BW he said was confused, inconsistent, defensive, confrontational and argumentative: she was committed to supporting JW's version: TT page 59. 5. Mr Khan submitted that BW's evidence was a "Frankenstein's monster" made up of things heard and discussed but not witnessed or directly experienced by BW. Inconstancies included how long and when she was at Bulli, whether she was in High School, which bed she was in whether or not there was crying and whether it was muffled, were all unable to be excused. As BW said herself, she "contradicted herself": TT page 33. Her evidence, he said, was replete with inventions and pivots. It was at times obviously false. He gave as an example how she described the incident when JW cut her heel. He said I would conclude she was not there. 6. Another example was her fight with JW. She was not told anything by JW, rather she assumed and invented. Her different accounts of the phone call and her interruption showed that in evidence she added an admission by Mr Jones that was not in her statement – another example, he said, of fabrication. 7. So far as JW was concerned he drew my attention to her admissions she had memory problems and suggested she had downplayed the impact of her stroke. He pointed to some problems with her memory of dates and said some of her responses to questioning appeared calculated. He said while I might as the prosecution suggest think some differences were relatively minor I must look at their cumulative impact. 8. He took me through inconsistencies and gaps in JW's account of each incident and the 16th birthday allegation. So far Count 9, the first incident at Corrimal and Count 10, the oral sex allegation, was concerned he said the differences in accounts between her statement and her evidence was "striking." The differences, he said, were critical and indicative of concoction. He submitted that my doubts about the accuracy and reliability of the evidence on that count should be taken into account when I consider JW's evidence as a whole. 9. He took me to the absence of material, which, even making allowances for the time that had elapsed, would cause me to doubt JW's account. There are no records of JW going to Bulli hospital or to a local doctor for a sprained ankle or a cut heel. We do not know when she started or left to High School after she left the Wollongong High school in mid-1981. There is no record she ever lived at Bulli or Corrimal. 10. So far as the 16th birthday incident was concerned he said all the evidence, including what was said by SAJ, indicated Mr Jones was not living in Bellambi at that time and was already living with then his fiancée SAJ. 11. In conclusion he returned to what he said were the "slips" made by BW, JW and AM. He said they had been talking to each other and each was familiar with what the other planned to say. Ultimately, he said it had been too long, there were too many unresolvable issues and given the unreliability, inaccuracy and unbelievability of each key prosecution witness I must be left with reasonable doubts and accordingly I would give the defendant the benefit of them. Consideration Prejudice 1. Mr Jones unfitness has prejudiced his defence. The procedures adopted in the special hearing are designed to minimise but not eliminate that prejudice. The fact of prejudice must be factored into my assessment of the evidence. But it does not relieve me of the task of determining the issues on the basis of the evidence before the court. Other than drawing available inferences from proved facts I cannot speculate about material that is not before the court as evidence. 2. Delay has caused prejudice to both parties. That prejudice must be addressed in different ways. Fundamental to that difference is that the prosecution has at all times the onus of proof and that the standard of proof so far as the elements of an offence are concerned is beyond reasonable doubt. 3. Here, I understand and appreciate that a complainant who has been indecently assaulted by their father may be reluctant to come forward and complain. I understand that a child will respond to threats and fears generated by what was said at the time and designed to ensure their silence. Confusion, fear, lack of knowledge and understanding can all influence a decision to come forward or not. A child's reasoning process is not the same as that of a mature adult but an adult can also experience similar emotions. The fact of delay does not necessarily indicate that the allegation that the offence was committed is false. Delay of itself does not undermine a complainant's credibility: s294 Criminal Procedure Act 1986. 4. Further, both truthful and untruthful accounts of a sexual offence may contain differences. Delay will increase the risk differences may emerge. Few, if any of us, have perfect recall. An event is rarely recalled and recounted in the same way each time a memory is accessed. People may not remember all the details of an event or may not describe an event in the same way each time it is recounted or remembered. It is relatively common for there to be differences in accounts of a sexual offence: s 293A Criminal Procedure Act 1986. And, over time the risk of difference is accentuated. Differences in accounts of the same incident do not necessarily mean an allegation is false. They can be entirely understandable. 5. Similarly, where one event amongst many similar events is recalled the possibility that some facts may be misremembered and melded together does not necessarily indicate an event did not occur. But, and it is important but, where the event is said to found a criminal charge that must be proved beyond reasonable doubt an inability to recall and recount with accuracy what happened during that event may be critical to any assessment of whether the heavy onus placed on the prosecution has been met. Missing Documents 1. Delay can mean that material that might have been available to support or corroborate a witness' account is no longer available. There are here, understandable reasons, given the lapse of time, why records that might support the prosecution case or that raised by the defence cannot be found or produced. Over time records are lost or destroyed. It is notorious that paper records are not necessarily kept. 2. Corroboration of a complainant is not a requirement and its absence cannot be used to undermine a complainant's account: ss 294AA Criminal Procedure Act 1986; ss 164 & 165 Evidence Act 1995. The absence of corroboration does not mean that a child complainant's account should be undervalued. Nor does the fact a witness was a child mean they are any less reliable as a witness than an adult: s165A Evidence Act. 3. But the absence of evidence should not be protective of the interests of the prosecution. Further, the absence of evidence must be taken into account when I consider the capacity of the defendant to test the prosecution's case because of extraordinary delay: see [43]. 4. It is not in dispute that given a delay of over 35 years potential evidence has been lost or is otherwise unavailable and every witness's recall must have been affected. It is not in dispute that the delay has meant the defendant now has a cognitive impairment that did not exit at a time when the allegations are said to have occurred. And, that that cognitive impairment has impacted on his capacity to recall or rebut what others now recall of events from 1981 to 1985. That delay has created a significant forensic disadvantage for the defendant. I need to take into account the nature of that disadvantage when considering the evidence before me: TO v R [2017] NSWCCA 12 at [167]; s 165 B Evidence Act applies W v R [2014] NSWCCA 110; s133 Criminal Procedure Act. 5. I cannot speculate about what a document might have contained. I remind myself where the onus of proof lies at all times. I direct myself that I should not be diverted from a proper assessment of the evidence actually before me and its strength. Where a document that might have existed or is not found I simply to do not speculate or guess about its possible contents. But the absence of a record does not, as Mr Khan suggested, mean that I must conclude it did not exist and use its absence to undermine the probative value of a prosecution witnesses' evidence: evidence of absence is not absence of evidence. 6. Two examples arise here. JW said she went to hospital in Bulli for treatment of a sprained ankle and was given crutches. No records exist in the name JW or her birth name. This is not all surprising given the time that has elapsed. It does not mean I conclude she did not go to the hospital and thus invented that aspect of her story. A conclusion I may have reached if the incident had occurred in 2020. 7. Both JW and AM say they reported the indecent assault to a policeman at Corrimal Police Station in the 1980's or 1990's. No record of that report was found on the police COPS system. The COPS system started in the 1990's and not all earlier records were transferred to it. Sadly, it is notorious that even today not all reports to police of indecent assault are followed up. And contemporaneous notes are not always made, even today: For a recent example see De Belin v R; Sinclair v R [2020] NSWDC 487 at [240] & [241]. 8. The defendant has no obligation to prove anything and must be given the benefit of any reasonable doubt held by the judge. His inability to obtain documents or other evidence that might support a defence or enable him to challenge a complainant's account must be considered and given weight. They are considerations relevant to my evaluation of the evidence. Uncalled witness 1. During closing submissions Mr Khan made reference to the fact that the Prosecution had not called the complainants' younger sister to give evidence. We have also not heard from Ms R. While I can take the fact that there has been no evidence from a person, who might have something relevant to say, into account when I decide whether the Prosecution has proved the guilt of the defendant, I do not guess what they would have said if they had been called. While I am entitled to take into account that there was no evidence from that particular person in deciding whether or not there is a reasonable doubt about a count there is no suggestion the younger sister or Ms R was present when any critical event the subject of a count occurred. Concoction 1. There was opportunity over the years for BW, JW and AM to concoct an account or tailor their accounts to support each other. And, in what Mr Kahn called "slips" BW did mention that she knew her sister's statement differed from her own: TT page 157. And, she did say she made her complaint to "support her version": TT Page 59. Frankly, that evidence does cause me concern about BW's motives and evidence. But, and it is important but, JW's complaint was raised with Mr Jones in 1985. It was not then pursued. There is nothing to suggest concoction or collaboration at that time so far as JW was concerned. There were however considerable differences in evidence as to when BW revealed her allegations and when she first learned of what JW said had been done to her and of the details of JW's allegations; or indeed if any were given. Tendency 1. There were similarities in the accounts given by each complainant but BW's evidence discloses a real risk she has tailored her account to that of her sister. It deprives the asserted tendency evidence of probative value. 2. Evidence of each charged act and uncharged act in relation to JW was admitted and is cross-admissible as tendency evidence in proof of each charge: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40. However, I while admissible I still have to consider what weight I give the evidence. 3. JW's individual accounts have no source independent of her. There are no special features of JW's account in relation to one specific incident that adds probative value to what she said about another incident. I cannot conclude her account is truthful just because she gave an account that on another occasion Mr Jones exhibited a similar sexual interest in her: IMM v The Queen (2016) 257 CLR 300] [2016] HCA 14 at [62] & [63]. In those circumstances given my doubts about BW's evidence I will not be using tendency reasoning in my determination of whether the prosecution have proved a count beyond reasonable doubt. I put the suggested 'tendency' aside completely 4. That does not mean I do not consider, as Mr Khan suggests, whether an account that I find is untruthful undermined JW's credibility on other counts. He points in particular to SAJ's evidence that Mr Jones did not live in Balgownie in 1984 when JW turned 16 and the differing versions given about Counts 9 and 10: which I discussed below. BW's account 1. BW gave careful evidence in chief and showed no obvious malice toward the defendant. She was polite but often gave unresponsive answers apparently guessing what was to be asked of her in future questions. She needed to be reminded to answer a question in cross-examination and not volunteer information or opinion or argue the point with Mr Khan. Overall she was not an impressive witness. 2. I remind myself demeanour is only one and in many instances the least important, factor in assessing a witness' believability, particularly one who is being accused of lying and concoction. Aggression, nerves and taking an augmentative stance in such circumstances is far from unusual; whether truthful evidence is being given or not. That said, I could not help but note that some of some BW's responses appeared contrived; particularly when discrepancies in her account were made obvious. There are discrepancies in BW's chronology of disclosure that make it hard to not to have some doubts about her account. 3. She said she had told her mother of her father's abuse after the fight with JW. She also said she called out during the interrupted phone call and called Mr Jones a liar when he said he had not abused the other girls. Her mother made no mention of the earlier complaint and said during the call BW having heard Mr Jones admit to touching JW interrupted and called out, "You f'ing bastard." Only later after they had discussed what Mr Jones was supposed to have done to JW did BW say "cause he also abused me too." 4. But is her account of the cut heel incident that makes it hard to accept her beyond reasonable doubt. She gave a convincing account of what happened and who was there. But no other witness has her attending the Corrimal address and most importantly JW does not put her there during this incident. If she can invent that account and recount it in an apparently plausible way her other testimony on other matters would need to be carefully scrutinised. 5. Close scrutiny of the evidence given for each of counts 1 to 3 reveals discrepancies and additions apparently on the spur of the moment. While I understand she may have mixed up in which order events occurred and which bed an incident happened, her evidence about crying and the muffling of her cries gave the impression she was making things up in anticipation of criticism or challenge. While corroboration is not required nothing BW said was corroborated in any substantial way apart from the fact she spent some nights at Bulli and listened into and interrupted a phone call 6. While BW's evidence, if accepted, would establish each element of Counts 1 to 3 the other evidence considered in the light of the directions I must give rather than removing those doubts, accentuate them. While it is possible each event occurred I could not be satisfied to the very high standard required that Counts 1 to 3 have been proved beyond reasonable doubt. JW's account 1. JW appeared to be a thoughtful and considered witness. She was not overly emotional. She gave me the impression when recounting the incidents that found each count that she was doing her best as a mature adult to explain how she reacted to incidents that occurred when she was a child; a child without any true understanding of what or why Mr Jones was doing things she said he did to her. There was no obvious exaggeration or sign of fabrication in her accounts; which if accepted would prove each element of Counts 4 to 12. She made appropriate concessions in cross-examination and was candid about the impact of her stroke on her short term memory. 2. JW's accounts were consistent. While I understand the particular criticisms Mr Khan directed at her evidence about Counts 9 and 10 those discrepancies were explained. They did not cause me to think she was inventing or fabricating her account. But there were troubling aspects in her response to cross-examination, particularly when challenged over detail. 3. While she was adamant the events on her 16th birthday occurred at Balgownie that the defendant may not have lived at his friends address any more does not mean he did not have access to the premises. True it is, as Mr Khan suggests, that Mr Jones took a risk of discovery each time he did something to his daughter. That factor while it must be considered is far from decisive. Every act of child sexual abuse involves a risk of discovery or later disclosure. Some abusers are arrogant enough to presume they will not get caught and if the matter is revealed that their denials will be believed over the testimony of a child. 4. JW gave convincing evidence of each individual instance among a pattern of regular behaviour. There were no apparent embellishments or attempts to portray her father in a worse light than that revealed. However, little other detail was provided that might have enabled the accuracy and reliability of her accounts to be tested. When challenged on such details her reactions were defensive. 5. Mr Jones had an opportunity to commit each offence against JW. Sadly, in my experience, as lawyer and judge, that a father would abuse a daughter who was available to him in the manner alleged is not incomprehensible - such incidents occur rarely but regularly. 6. The accounts leading up to the disclosure to her mother, the way it was expressed and her reluctance to discuss the incidents in any detail or take it to police do not diminish the power of her accounts. Her accounts of each allegation were believable. That conclusion does not however mean I must find an offence proved Mr Jones committed the offence. I have to consider a number of other important factors. 7. Although this is a special hearing and it must be determined on the limited evidence available the defendant is entitled to a presumption of innocence and a requirement that each count be proved beyond reasonable doubt before a finding an offence is proved can be made. There was almost no evidence to lend verisimilitude to the accounts given by JW and the life she lived with her father. While there are many reasons why a child or adult may delay in coming forward, and threats at the time are a very real reason, no reason was given for the long delay after she became an adult. I accept it may have been difficult for her to accuse her father and commit to Court proceedings but JW waited many years to bring the matter to the attention of police. I accept she made one attempt when she went to Corrimal Police Station when she was 19 or 20 but it was not followed up and she did not come forward again until 2018. 8. Mr Jones denied the account to his wife when the matter was first raised and subsequently. Although AM said he made an admission to her, of itself that account after so long could not be decisive. People often hear what they want to hear; AM said she heard an admission and SAJ said she heard denials SAJ appeared to be a truthful witness and she and others vouch for the good character of Mr Jones as a gentle man who, they say. would not have done the things alleged against him. SAJ was seeing Mr Jones from 1983. She was not mentioned by any key prosecution witness. AM did not mention speaking to her before the phone call when it is said admissions were made. 9. There is evidence that after the disclosure in 1985 JW, BW and AM discussed what JW alleged. But there was no evidence she gave any detail of what she said occurred to anyone until 2018. By then her father was not in any position to intimidate or threaten her but nor was he in a position to respond fully (if at all) to the allegations. Her mother and sister were also aware of the more recent disclosure to police and all attended and to make statements, giving rise to the risk that they have added each other's accounts. 10. The long delay has meant that Mr Jones is not in a position to challenge to any significant degree what was alleged by reference to work, school or hospital records and other documents or the recent recall of witnesses, including those called at trial by both the prosecution and the defence. For example; there is simply no evidence to say when he and JW lived in Corrimal or when she returned to live with her mother. And, three differing accounts of where that was. 11. In 2021 after a delay of over 38 to 40 years there were few contemporary materials produced and few objectively established facts. Rather, I had to assess the subjective accounts of multiple witnesses. 12. Long delay can lead to memories being lost. Once lost, memories can be reconstructed. If reconstructed their reliability may suffer. Human memory is a very fallible thing. Inventions can occur and be remembered as real – an example here is BW's account of the cut heel incident. 13. Events can be elided into others. It is often impossible to know whether you are remembering what happened or your memory of the remembering an event. That is why, while it is not necessary or required, a trier of facts looks to other evidence and accounts or indeed anything that might lend support to a complainant's account. 14. Here apart from opportunity, because Mr Jones and JW lived together; that support comes from JW's complaint to her mother "it was like a duties of a married woman." That statement is ambiguous and contained no detail. Nor were there any details of how JW and Mr Jones interacted otherwise during their time at Bulli or Corrimal. I note he was at time working both as a coalminer and a doorman at a club and that she was a teenage school girl. 15. There is also the alleged admission but while it is possible it did occur I cannot place much weight on it given the different account given by SAJ and AM and BW. 16. It appears JW gave no details of any incident until her police statement in 2018 and then her description of each incident followed a similar pattern with the only the difference being the position the complainant says she was put in or the location of the event. 17. The date ranges for each offence are very broad. There was no accompanying detail as to what else may have been happening between JW and Mr Jones or what JW did at the Corrimal unit or the Bulli house apart from a reference to failing PE because she was crutches or friends coming over (the cut heel incident). There is no evidence anyone, family or neighbors noticed anything out of the ordinary at the time. While this does not disproved the allegations, as assaults such as this would be kept secret, I am left with nothing other than the accounts themselves. 18. JW left her Wollongong High School in mid-1981. That school's records note the school she was moving to was "Bulli." I have no doubt that she was living at Bulli for the period before she and her father moved to Corrimal. RA's evidence that she never lived there could not be accepted. Nor do I doubt that she then left Corrimal to live with her mother, although I have no idea when that occurred. There was no evidence about why she enrolled at the High School near the Corrimal unit and not the one close to her Aunt's home in Bulli or when she started at that school. There was evidence about the school she went to when she moved back to Fairy Meadow but not what date she changed schools or what occurred when she moved to Dapto. And her mother told me she did not originally have a bedroom at Dapto but a room was made available to her when she came back (presumably from her father's): TT page 178 19. While JW did see a relationship counselor in 1988 the only remaining note from those visits is "2 year 2 month relationship." There is no objectively verifiable record of which relationship or what she was counselled for. 20. I am prepared to accept, on the limited evidence available, that there is a real possibility there were assaults with acts of indecency committed by Mr Jones on JW at both Bulli and Corrimal. But, and it is an important and fundamental but, in matters such as this I do not act on what I believe might probably be the case. Whatever Mr Jones did to JW in 1981, 1982 and 1983 occurred too long ago for me to be satisfied beyond reasonable doubt about what actually happened or that any specific event occurred as alleged. 21. I can only return a finding an act was proved if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. And here I just cannot do so. The defendant must have the benefit of that doubt on each of Counts 4 to 12. Verdict 1. On the limited evidence available: 1. Count 1: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 2. Count 2: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 3. Count 3: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 4. Count 4: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 5. Count 5: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 6. Count 6: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 7. Count 7: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 8. Count 8: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 9. Count 9: Sexual Assault - Assault & act of indecency person <16 -.the defendant is not guilty of the offence charged. 10. Count 10: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 11. Count 11: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. 12. Count 12: Sexual Assault - Assault & act of indecency person <16 - the defendant is not guilty of the offence charged. Orders 1. The defendant is discharged ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2021