District Court New South Wales Medium Neutral Citation: R v Maguire (No. 1) [2022] NSWDC 92 Hearing dates: 09–12, 15–19, 22–24, 26, 29, 30 November 2021, 01–03, 06–10, 13, 17 December 2021 Date of orders: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: The accused is found guilty of each count on the indictment Catchwords: CRIME — Child sex offences — Child abuse material — Production CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Sexual offences — Act of indecency CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge Legislation Cited: Crimes Act 1900 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No. 33 Criminal Procedure Act 1986 Evidence Act 1995 Evidence (Tendency and Coincidence) Act 2020 No 8 Cases Cited: Ewen v R [2015] NSWCCA 117 Fleming v R (1998) 117 CLR 250 GG v R [2010] 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230; BC201007553 Liberato v The Queen 1985 159 CLR 507 R v Asst Record of Kingston 1969 2QB 58 R v Chonka [2000] NSWCCA 466 R v Eade [2002] NSWCCA 257 R v Markuleski (2001) 52 NSWLR 82 R v Massie [1999] VR 542 R v Murray (1987) 11 NSWLR 12 Young v Cassels (1914) 33 NZLR 852 Yuen v R [2015] NSWCCA 117 Zoneff v The Queen (2000) 200 CLR 234 Texts Cited: Hansard Legislative Assembly 25 February 2020 Category: Principal judgment Parties: Regina (Crown) Raymond John Maguire (Accused) Representation: Rosheehan O'Meagher (Crown Prosecutor) Emanuell Conditsis (Solicitor Advocate for the Accused at trial) Michal Mantaj (Solicitor Advocate for the Accused for judgement) Director of Public Prosecutions (NSW) (Crown) Conditsis Lawyers (Accused) File Number(s): 2018/00080289 & 2018/00264850 Publication restriction: Statutory non-publication order of the names of the complainants and of any information which may enable their identities to be ascertained REVISED JUDGEMENT 1. This is the judgement following the Judge Alone Trial of Raymond John Maguire. INTRODUCTION 1. On Tuesday 9 November 2021, Raymond John Maguire represented by Mr Conditsis appeared for trial in the District Court, Sydney upon an indictment alleging 15 offences in respect of three complainants. I shall refer to the complainants by their initials to protect them from identification. AMENDMENTS TO COUNTS 1, 8, 10 AND 11 1. Upon arraignment before me, the accused pleaded not guilty to each count and thereafter the matter proceeded with arguments upon pre-trial issues. In due course, the trial proceeded as a judge alone trial during which certain counts were amended by an adjustment of the range of dates in which it was alleged the misconduct occurred, though the allegation of misconduct upon which the charges were formed remained constant. 2. The amendments sought and made were not opposed by the accused. 3. The first amendments were sought on 23 November 2021 for counts 1 and 8, at trial transcript p 291 and following. Without objection, I gave leave to amend the indictment to reflect the time in which the complainant alleged the misconduct occurred. Count 8 also required amendment to vary the complainant's ages within the timeframe described. I provided my ex tempore judgement on that day. 4. The second amendments were sought on 13 November 2021 for counts 10 and 11, at trial transcript pp 613 and following. The age of the complainant in counts 10 and 11 was also amended. I provided my ex tempore judgement that day. 5. The accused was re-arraigned upon the amended counts and continued his pleas of not guilty. THE OFFENCES 1. The offences upon which he was tried with the amendments made by consent were, that the accused: Count One Between 1 September 2009 and 30 June 2012, at Wyee in the State of New South Wales, did produce child pornography. S 91H(2) Crimes Act 1900 Count Two Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, did being an adult, engage in conduct that exposed RH, a child under the age of 14 years, namely, 10, 11 or 12 years of age, to indecent material, with the intention of making it easier to procure RH for unlawful sexual activity with Raymond Maguire. S 66EB(3) Crimes Act 1900 Count Three Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, did have sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11 or 12 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count Four Between 1 January 2010 and 31 December 2011, at Wyee in the State of New South Wales, had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11 or 12 years, in circumstances of aggravation, namely, at the time of the offence, RH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count Five Between 1 January 2010 and 30 June 2012 at Wyee in the State of New South Wales, did have sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely, 10, 11, 12 or 13 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count Six Between 1 January 2010 and 6 June 2013, at Wyee in the State of New South Wales, did incite RH, a child then under the age of 16 years, namely, 10, 11, 12, 13 or 14 years, to commit an act of indecency towards Raymond Maguire, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire. S 61O(1) Crimes Act 1900 Count Seven Between 1 January 2010 and 6 June 2013, at Wyee in the State of New South Wales, did incite RH, a child then under the age of 16 years, namely, 10, 11, 12, 13 or 14 years, to commit an act of indecency towards Raymond Maguire in circumstances of aggravation, namely, at the time of the offence, RH was under the authority of Raymond Maguire. S 61O(1) Crimes Act 1900 Count Eight Between 1 January 2011 and 6 June 2013, at Wyee in the State of New South Wales, had sexual intercourse with RH, a child above the age of 10 years and under the age of 16 years, namely, 11, 12, 13 or 14 years, in circumstances of aggravation, namely, at the time of the offence RH was under the authority of Raymond Maguire. S 66C(4) Crimes Act 1900 Count Nine Between 1 January 2011 and 31 December 2011, at Wyee in the State of New South Wales, did produce child abuse material. S 91H(2) Crimes Act 1900 Count Ten Between 1 June 2012 and 30 June 2013, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 10 or 11 years, in circumstances of aggravation, namely, that at the time of the offence AH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count 11 Between 1 June 2012 and 30 June 2013, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 10 or 11 years, in circumstances of aggravation, namely, that at the time of the offence AH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count 12 Between 5 June 2014 and 30 June 2015, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 12 or 13 years, in circumstances of aggravation, namely, that at the time of the offence AH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count 13 Between 5 June 2014 and 30 June 2015, at Wyee in the State of New South Wales, did have sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely, 12 or 13 years, in circumstances of aggravation, namely, that at the time of the offence, AH was under the authority of Raymond Maguire. S 66C(2) Crimes Act 1900 Count 14 Between 2 November 2015 and 18 August 2017, at Wyee in the State of New South Wales, did being an adult, engage in conduct that exposed SC-A, a child under the age of 14, namely 8 or 9 years, to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with the said Raymond Maguire. S 66EB(3) Crimes Act 1900 Count 15 Between 2 November 2015 and 18 August 2017, at Wyee in the State of New South Wales, did commit an act of indecency towards SC-A, a person then under the age of 10 years, namely 8 or 9 years. S 61O(2) Crimes Act 1900 TRIAL BY JUDGE ALONE 1. The proceedings continued from 9 November 2021 for the determination of pre-trial issues. On 10 November 2021 Mr Conditsis announced that he sought orders that the trial proceed before a judge alone and presented a notice of motion and affidavit in support. The Crown needed time to finalise the Crown's position in response to the application. On 11 November 2021 the Crown announced that it consented to the application for the trial to proceed before a judge alone. The parties did not wish to be heard against my continuing with the matter. 2. Section 132A(1) Criminal Procedure Act 1986 proscribes an application for a judge alone trial if made within 28 days of the commencement of the trial except with the leave of the Court. To clarify, the period is 28 days before the commencement of the trial. 3. Section 132 of the Act provides that the Court must order the trial to proceed as a trial by judge alone when the parties are joined in the application, upon the Court being satisfied that the accused has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. I was and remain satisfied that the accused had advice from Mr Conditsis upon those matters. 4. I was also satisfied that it was appropriate to continue with the pre‑trial issues and thereafter to hear the evidence and determine the trial as the judge alone notwithstanding the time when the application was presented. There was no good reason identified for any further delay in the proceedings. To adjourn the matter to resume before another judge 28 days hence would clearly be wasteful of resources, of the parties and the Court and there could not be any suggestion that the accused had embarked upon the application in the hope of having a judge of his choice hear the matter. Accordingly pursuant to s 132A Criminal Procedure Act 1986 I ordered that the accused have leave to file out of time his application for the trial to proceed before a judge alone and that upon the concession by the Crown that the matter should proceed in that fashion and the position taken by the parties that the trial continue in my Court forthwith, pursuant to s 132 of the Act I ordered that the accused be tried before me as a judge alone. 5. In the circumstances of the current pandemic the Criminal Procedure Act 1986 provides, in s 365, that a Court may, on its own motion order that an accused person be tried by judge alone but only if: 1. the accused person is content to be tried by a judge alone, and 2. if the Prosecutor does not agree to the accused person being tried by a judge alone the Court considers it is in the interest of justice for the accused person to be tried by a judge alone, and 3. the Court is satisfied that the accused has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a judge alone. 1. This section applies despite any other provisions of this Act including s 132 and s 132A. Considering the application brought, it was not necessary to resort to that provision. The wisdom of this course in the trial was patent. It provided the opportunity for the more expeditious resolution of the charges the accused faced against the risk that after the determination of a significantly large number of pre-trial issues requiring the Court to consider a substantial quantity of material a trial before a jury would not be completed in the weeks available before the conclusion of the law term shortly before Christmas and New Year. GENERAL DIRECTIONS 1. To comply with s 133(2) and s 133(3) Criminal Procedure Act 1986 and as required by the decision of the High Court in Fleming v R (1998) 117 CLR 250 I remind myself of the following principles of law. 2. As the accused pleaded not guilty and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charges and to return my verdicts according to the evidence. It is for me to assess the witnesses and decide whether they are reliable. I note that reliability depends upon two quite different but sometimes overlapping considerations. 3. One is the witness's honesty and the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say but also the impression that the witness made upon me. I accept that the complainants were not before the Court knowingly giving untrue evidence, but I must be satisfied of the accuracy of their evidence implicating the accused in the commission of these offences. 4. If there are questions about the accuracy of their assertions sufficient to leave me with a reasonable doubt, in consequence thereof I must return verdicts of not guilty to these charges. I have the benefit of submissions from the Crown and the accused's counsel. I will consider them and give such weight as I think they deserve. I note that they are not evidence in either case. 5. As the Tribunal of Fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge the importance of matters I must decide, not only for the accused but also for the whole community. I must act impartially, dispassionately, and fearlessly. I must not let sympathy or emotions sway my judgement. I must not act capriciously or irrationally. 6. This direction is important. The complainants were children placed in foster care after removal from their birth families because of the challenges they faced there. The birthdates of the complainants are uncontroversial. Sympathy that one might feel for children such as these in their circumstances should not be permitted to infect the proper judicial determination of these charges according to the evidence relevant to them. THE JOINT PROCEEDINGS 1. The accused is being tried jointly upon 15 counts brought upon alleged misconduct against three complainants. This course was taken as a matter of convenience. There are multiple episodes of alleged misconduct for which the accused faces contemporaneous trials. 2. Generally, there is nothing in law or as a matter of common sense that requires the same verdict in respect of all counts presented in an indictment, if at the end of the day the evidence proves guilt in respect of one or more counts but not in respect of others. One must not in such a case take a global approach to all the instances of alleged misconduct. 3. If the accused is found guilty or not guilty of one offence the Court must not say that the accused is therefore guilty or not guilty of another or other offences on the indictment. Accordingly, I must consider each charge with regard to the evidence relevant to it and will be required to return a separate verdict in respect of each. 4. However, because of the way in which the case was presented and contested in this trial a verdict of not guilty in respect of any of counts 1 through 8 must not be overlooked when considering each of the other counts concerning RH. Similarly, a verdict of not guilty in respect of any of counts 9 through 13 must not be overlooked when considering each of the other counts concerning AH; and a verdict of not guilty in respect of either counts 14 or 15 must not be overlooked when considering the other count concerning SC-A. If my verdict is not guilty in respect of misconduct alleged of the accused by a complainant because of my doubts about the truth or accuracy of the evidence of that complainant I must consider the impact of that upon my consideration of the other events alleged by that complainant. 5. In each case the issue joined is whether the Crown has established that the accused engaged upon the misconduct alleged. The accused denies that he did so. It is not suggested that the conduct alleged of the accused if accepted does not amount to the offences charged. It remains however, that I must also be satisfied that the evidence, if accepted, establishes the elements of the offences. THE BURDEN OF PROOF 1. This is a criminal trial. The Crown has the onus of proof to the standard beyond reasonable doubt in respect of every element of the charges. The accused denies that the offences occurred; the Crown must prove that they did. It is not for the accused to disprove these charges but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond a reasonable doubt. The words beyond reasonable doubt are ordinary everyday words and that is how I understand them. 2. If at the end of my deliberations I am not satisfied that the Crown has established beyond reasonable doubt that the accused engaged upon the conduct alleged of him, or of the elements or essential facts which combine to create an offence alleged, having taken into consideration the evidence both for the Crown and for the accused and after also taking into consideration the submissions made to me by the Crown and the accused's representative, then it is my duty to bring in verdicts of not guilty because the Crown would have failed to do what the law requires it to do. 3. It is vitally important that I clearly understand that the accused must be found not guilty if the alleged misconduct has not proven to have been committed by him, or if some misconduct is proven, any of the essential ingredients of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to the occurrence of the misconduct or any essential ingredients, even though I might suspect that the accused so engaged, the accused is entitled to the benefit of that doubt, and I must find him not guilty. 4. I remind myself that the Crown does not have to prove every single fact arising from the evidence in the case beyond reasonable doubt and I am not required to resolve every conflict arising from the evidence. The onus which rests upon the Crown is to prove the ingredients of the offences and that they were committed by the accused. INFERENCES 1. I remind myself that I may in my role as judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified, or unjustified, correct, or incorrect, I may draw an inference adverse to the accused from proven facts only if such an inference is the reasonable inference that can properly be drawn from the proven facts. 2. This is a criminal trial and as I have already noted I must be satisfied of each of the essential ingredients beyond reasonable doubt and that the accused committed the offences before he may be found guilty. Amongst other things this means that I should be extremely careful about drawing any inference; I should examine any possible inference to ensure that it is a justifiable inference in the circumstances. I should not draw any inference from the direct evidence as to the existence of an essential ingredient or as to the guilt of the accused unless it is the only rational inference in the circumstances. THE ACCUSED DID NOT GIVE EVIDENCE 1. The accused did not give any evidence in response to the Crown's case although documents were tendered and became exhibits and he relied upon evidence from his wife and a friend to prove he is of good character. 2. As I have already pointed out the Crown bears the onus of satisfying the Court beyond a reasonable doubt that the accused is guilty of the offences charged, the accused bears no onus of proof in respect of any fact that is in dispute. 3. Although the accused was entitled to give or call evidence there was no obligation to do so. He is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty; therefore, it follows that the accused was entitled to say nothing and make the Crown prove his guilt to the high standard required. 4. The accused's decision not to give evidence cannot be used against him in any way; that decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that might exist in the evidence tendered by the Crown. It cannot be used in any way of strengthening the Crown case or in assisting the Crown to prove its case beyond a reasonable doubt. 5. I must not speculate about what might have been said in evidence if the accused had given evidence or another person speaking to the relevant matter had been called by the accused as a witness in the trial. THE ACCUSED'S INTERVIEW 1. The accused participated in an interview with the police. 2. I remind myself that all of us in the community have the right to refuse to answer questions put to us by the police, but in this instance the accused participated in the interview; he did so alone, and he responded to extensive questions put to him by the investigating police. 3. The accused's exculpatory assertions are thus before the Court in evidence upon the Crown's tender of the video recording. This was not sworn evidence or testimony, was not against the accused's interests, and was not tested by cross-examination, although the interview was of some length and the interviewers went into detail when asking about background and when putting specific allegations. 4. The weight to be attributed to the accused's responses is to be determined in the light of the whole of the evidence. Bringing these matters to bear, the denials given by the accused in the interview and the information he provided in response to the questions probing the circumstances traversed must be given consideration, and if the responses leave a reasonable doubt in respect of the allegations made against him dealt with in the interview or any one of them he is entitled to the benefit of the doubt and consequently a verdict of not guilty must be returned to the count in respect of which the doubt is established. 5. However, if I have not been persuaded that the responses leave a reasonable doubt it does not follow that the accused must be found guilty. It is not the case that I must accept his assertions before he is entitled to be acquitted; nor is it the case that the responses must leave a doubt in my mind as to their veracity before the accused is entitled to acquittal. If I reject entirely his responses it remains that the Crown cannot succeed in this prosecution unless I am satisfied by the evidence in the Crown case that the accused is guilty. If I do not accept what the accused said to the police, I simply put that to one side and decide whether the evidence in the Crown case proves the accused's guilt; if it does not then he must be found not guilty. THE ESSENTIAL ELEMENTS 1. The accused is charged with 15 counts, although as I note below the accused does not suggest that the alleged conduct, if accepted, does not satisfy the elements of the offences charged in each instance. He vigorously denies that he engaged upon any of the misconduct alleged by each of the complainants. COUNT 1 1. Count 1 is an offence of producing child pornography, contrary to s 91H(2) Crimes Act 1900 as it stood between 1 January 2009 and 16 September 2010, after which s 91H was amended to provide for offences in respect of child abuse material. This offence is alleged to have occurred between 1 September 2009 and 30 June 2012 when the complainant was in primary school, during which period there was a change in the law. 2. The Crown reminds me of s 80AF Crimes Act 1900 which provides: 1. This section applies if-- 1. it is uncertain as to when during a period conduct is alleged to have occurred, and 2. the victim of the alleged conduct was for the whole of that period a child, and 3. there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and 4. because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period. 1. In such a case, 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. (2A) In prosecuting an offence referred to in subsection (2)-- 1. any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and 2. any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period. 1. In this section-- 2. 'Child' means a person who is under the age of 16 years. 3. 'Sexual offence' means the following offences regardless of when the offence occurred-- 1. an offence under a provision of this Division or Division 10A, 10B, 15 or 15A, 2. an offence under a provision of this Act set out in Column 1 of Schedule 1A, 3. an offence (whether under section 344A or otherwise) of attempting to commit any offence referred to in paragraph (a) or (b), 4. an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c). 1. This is an offence within Division 15A, the complainant was a child within the meaning given to that term here provided, and the maximum penalty for the misconduct caught by s 91H within the entire period specified in count 1 is imprisonment for ten years. There was therefore no impediment to the Crown prosecuting this offence upon the allegation that the accused produced child pornography. 2. Section 91H(1) Crimes Act 1900 provided: Child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: 1. engaged in sexual activity, or 2. in a sexual context, or 3. as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). 1. Produce child pornography includes: 1. film, photograph, print or otherwise make child pornography, or 2. alter or manipulate any image for the purpose of making child pornography, or 3. enter into any agreement or arrangement to do so. 1. Count 1 is in respect of RH. The Crown case is that on the occasion she alleges this to have occurred: * the accused asked her to get undressed and bend over, * she pulled down pants and underwear and the accused took photographs of her naked vagina, * this occurred in the games room, which was converted into a bedroom, * when the complainant was in primary school, she thinks Year 5. 1. The Crown must prove in respect of this allegation that the accused photographed the complainant's vagina in the circumstances she described. It is not suggested on behalf of the accused that such conduct does not satisfy the meaning of the term "Produce". The subject of the photograph was alleged to be the exposed vagina of the complainant, a child at the time. Such a photograph of a child taken in the circumstances would cause offence to reasonable persons, taken as it is alleged to have in a sexual context. I find that such a photograph is within the meaning of the term "Child pornography". COUNTS 2 AND 14 1. Count 2 and count 14 are offences alleging the accused engaged in conduct as an adult that exposed a child under 14 years of age to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with him, contrary to s 66EB(3) Crimes Act 1900. Count 2 is in respect of RH and count 14 is in respect of SC-A. 2. Section 66EB Crimes Act 1900 provides relevantly: 1. Definitions In this section: Adult person means a person who is of or over the age of 18 years. Child means a person who is under the age of 16 years. Conduct includes: 1. communicating in person or by telephone, the internet or other means, or 2. providing any computer image, video or publication. Unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or... 1. Procuring children... (2A) Meeting child following grooming... 1. Grooming children An adult person: 1. who engages in any conduct that exposes a child to indecent material..., and 2. who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. 1. The provision then specifics the maximum penalties. (4) In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children... (6) The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict... 1. The allegation by RH is that in the shed at the rear of the accused's home he showed her pornography and touched her vagina. At the time the accused was an adult and the complainant a child under the age of 14 years. The conduct alleged was the showing of a video and image of pornographic material. The Crown case is that the only inference to be taken from the conduct including that the accused touched the complainant's vagina beneath her clothes, is that he did so with the intention of making it easier to procure the complainant for unlawful sexual activity with him. 2. It is not suggested on behalf of the accused that the conduct alleged would not be within the terms of the provision creating this offence. 3. The allegation in respect much SC-A is that in the lounge room of his home the accused showed her pornographic material on an iPad immediately before he exposed his penis. At the time the accused was an adult and the complainant was a child under the age of 14 years. The Crown case is that the only inference to be taken from the conduct including that the accused exposed his penis is that he did so with the intention of making it easier to procure the complainant for unlawful sexual activity with him. COUNTS 3, 4, 5, 10, 11, 12 AND 13 1. In these counts the accused is alleged to have had sexual intercourse with the complainants RH and AH when they were over the age of ten years but under the age of 14 years, in the circumstance of aggravation that they were under the accused's authority, contrary to s 66C(2) Crimes Act 1900, the circumstance of aggravation specified in s 66C(5)(d). 2. This summary provided is sufficient to identify the elements of these offences. There is no issue that the children were in the age range at the times specified in the charges or correspondingly that they were children. 3. Counts 3, 4 and 5 are in respect of offences alleged by RH. Count 3 is in respect of an alleged act of digital penetration on the complainant's vagina whilst the accused showed a pornographic video. Count 4 is in respect of an allegation of penile-vaginal penetration. Count 5 is in respect of an alleged act of penile-vaginal penetration. 4. Section 161HA Crimes Act 1900 provides: 5. For the purposes of this decision sexual intercourse means, 1. sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: 1. any part of the body of another person, or 2. any object manipulated by another person, Except where the penetration is carried out for proper medical purposes, or 1. sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or 2. cunnilingus, or 3. the continuation of sexual intercourse as defined in paragraph (a), (b) or (c). 1. Thus, for the purposes of these offences sexual intercourse includes digital penetration; penetration of the genitalia to the slightest degree is sufficient. It is not necessary to prove ejaculation. If the complainant is accepted in her description of these events the elements of these offences are established. 2. Counts 10, 11, 12 and 13 are respect of offences alleged by AH. Count 10 is in respect of an allegation that the complainant when doing homework was directed to lie on a bed and the accused pulled down her pants and digitally penetrated her genitalia. 3. Count 11 is in respect of an allegation that the accused cornered AH in the dining room against a bookshelf, put his hands into her shorts and underwear and digitally penetrated her genitalia. 4. Count 12 is in respect of an allegation that the accused digitally penetrated AH's genitalia in her bedroom. 5. Count 13 is in respect of an allegation that after he digitally penetrated AH's genitalia, he said he wanted to try something new and penetrated her genitalia with his penis. 6. With reference to s 61H Crimes Act 1900 quoted above, if the complainant is accepted in the evidence asserting these facts, the sexual intercourse by way of digital penetration and penile penetration alleged by AH is proven. COUNTS 6, 7 AND 15 1. Counts 6 and 7 are in respect of the complainant, RH, and count 15 is in respect of the complainant SC-A. The accused is alleged in counts 6 and 7 to have incited the child, then under the age of 16 years, to commit an act of indecency towards him in circumstances of aggravation, that at the time of the offence the child was under his authority, contrary to s 61S(1) Crimes Act 1900, and in contravention of s 61S(2) in count 15 of having committed an act of indecency towards SC-A, a person then under the age of ten years, namely eight or nine years. 2. Before it was repealed and during the periods charged s 61O Crimes Act 1900 provided: 1. Any person who commits an act of indecency with or towards a person under the age of 16 years or incites a person under that age to an act of indecency with or towards them or another person in either case in circumstances of aggravation is liable to imprisonment for five years. (1A) ... 1. Any person who commits an act of indecency with or towards a person under the age of ten years or incites a person under that age to an act of indecency with or towards them or another person is liable to imprisonment for seven years (2A) ... 1. For the purposes of subs (1) and (1A) circumstances of aggravation mean circumstances in which 1. ..., or 2. the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender or 3. ..., or 4. … 1. ... 1. The term incitement is not defined in the Crimes Act but there is an authority from the Court of Criminal Appeal which provides guidance. In R v Eade [2002] NSWCCA 257 Smart AJ wrote: "In Young v Cassels (1914) 33 NZLR 852 Stout CJ...said: 'The word 'incite' means to rouse; to stimulate; to urge or spur on; to stir up; to animate.' "In R v Massie [1999] VR 542 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of 'incite' common forms of behaviour covered by the word are 'command', 'request', 'propose', 'advise', 'encourage' or 'authorise'." It was pointed out in R v Asst Record of Kingston 1969 2QB 58 of 62 that with the offence of incitement it is merely the incitement which constitutes the offence and it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all: Young v Cassels..." 1. The Crown must also prove that the accused incited the complainant to commit an act of indecency towards him. The word indecent means contrary to the ordinary standards of respectable people in the community. It is for the Court to determine the standards prevailing in that community when deciding whether the Crown has proven beyond reasonable doubt that the act alleged was indecent. To be indecent it must have a sexual connotation, for example if the act proposed was such as to clearly give rise to a sexual connotation, that is, sufficient to establish that the conduct was indecent, for example touching the genitalia or anus. 2. There was no issue raised as to the age of these complainants at the material times or as to the circumstances of aggravation that they were under the accused's authority when the conduct alleged occurred, nor as to the circumstances of aggravation that RH was under the accused's authority if it be found that the conduct alleged occurred. 3. The conduct alleged in respect of count 6 is that when the accused and RH were alone in a car, he asked her to insert lollies into her vagina which she did, after which he ate them and commented that they tasted good. 4. The conduct alleged in respect of count 7 is that the accused entered the bathroom when RH was in the bath and asked her to put a shampoo bottle in her vagina. 5. The conduct alleged in respect of count 15 is that the accused exposed his penis to SC-A and touched it in her presence. 6. The evidence describing the conduct alleged in respect of counts 6 and 7 if accepted as true and correct beyond reasonable doubt, the offences charged are proven and so too in respect of count 15 in which it is not alleged that the complainant was under the accused's authority. COUNT 8 1. Count 8 alleges that between 1 January 2011 and 6 June 2013 the accused had sexual intercourse with RH who was above the age of ten years and under the age of 16 years, namely 11, 12 or 14 years, when she was under his authority. The Crown charged this offence as contrary to s 66C(4) Crimes Act 1900. This count is expressed in its amended form as I discussed earlier. Section 66C(4) Crimes Act 1900 provides: "Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years." 1. However, after amendment of count 8 the age of a complainant is alleged to have been either 11, 12, 13 or 14 which attracts consideration of s 66C(2) of the Act with a maximum penalty of 20 years. There was no amendment of these provisions within the time frame adopted in the amended count 8. 2. Once more the Crown reminds the Court of the terms of s 80AF Crimes Act 1900 quoted earlier in this judgement. There is no challenge to the operation of this provision in respect of count 8. There is a measure of uncertainty about precisely when the offence is said to have occurred. The complainant was a child within the definition of that term throughout the whole of the period. The provision specified that the offence charged provides for the lesser penalty. If accepted that the offence occurred upon the evidence the prosecution can establish that the offence was contrary to s 66C(4) Crimes Act 1900 in force during that period; the evidence is the complainant was between 14 and 16 years of age during that period and the offence is found within Division 10 of Part 3 of the Act. 3. The conduct alleged of the accused for count 8 is that he had penile/vaginal sexual intercourse with the complainant on a coffee table in the upstairs of his home. If the complainant is accepted as truthful and accurate in the evidence given about this conduct the elements of this office are established. COUNT 9 1. Count 9 alleges that between 1 January 2011 and 31 December 2011 the accused produced child abuse material contrary to s 91H(2) Crimes Act 1900. 2. Following amendment, the offence created by this provision was in respect of child abuse material whereas within the period specified in count 1 before the amendment took effect the offence created was in respect of child pornography. Relevant to count 9 the section provides: 1. In this section – "produce" child abuse material includes - 1. film, photograph, print or otherwise make child abuse material, or 2. alter or manipulate any image for the purpose of making child abuse material, or 3. enter into any agreement or arrangement to do so. 1. A person who produces disseminates or possesses child abuse material is guilty of an offence. 2. Proceedings from an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions. 1. Section 91FB provides: 1. In this division child abuse material means material that depicts or describes in a way that reasonable persons would regard as being in all the circumstances offensive 1. …, or 2. A person who is, or appears to be or is implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or 3. …, or 4. The private parts of a child who is, appears to be, or is implied to be a child. 1. The matters to be taken into account in deciding whether reasonable persons regard particular material as being, in all the circumstances offensive include: 1. the standards of morality, decency and propriety generally accepted by reasonable adults, and 2. the literary, artistic or educational merit (if any) of the material, and 3. the journalistic merit (if any) of the material being the merit of the material as a record or report of a matter of public interest, and 4. the general character of material (including whether it is of a medical, legal or scientific character). 1. Material that depicts a person or the private parts of the person includes material that a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subs (1)). 2. The private parts of the person are: 1. That person's genital area…, whether bare or covered by underwear, or 2. … 1. The allegation of AH leading to count 9 is that when she was laying on her bed doing her homework the accused came to her, removed her shorts and underwear, and photographed her vagina. If the evidence asserting these facts is accepted as truthful and accurate beyond reasonable doubt the elements of this offence are proven. 2. If the evidence is accepted the photograph would have depicted material that I accept reasonable persons would regard as being in all the circumstances offensive. The complainant was a child who, as described, was engaged in a sexual pose. The image if captured would depict the private parts of the complainant, a child. I have brought to bear my perception of the standards of morality, decency, and propriety I find would generally be accepted by adults. No question of literary, artistic, educational merit or journalistic merit or medical or legal or scientific character arises THE TRIAL 1. The trial came before me on 9 November 2021 for mention with estimates given that it would continue for four weeks including pre-trial issues which were to be agitated before the selection of a jury. As noted earlier, in the initial stages of the proceedings the parties elected the alternative of the trial before a judge alone. The parties indicated many pre-trial issues and presented an array of folders relevant, it was said, to the rulings to be sought. 2. Notices of motion were filed after the accused was arraigned and pleaded not guilty to the 15 counts as formulated prior to the amendments discussed earlier in this judgement. The folders of material provided were marked as exhibits on the voir dire. I made orders allowing access to subpoenaed material and adjourned the matter to the following day for argument. 3. On 10 November 2021 the prospect of a judge alone trial was indicated. There were discussions regarding outstanding material sought by subpoenae and consideration was then given to the arguments advanced on the admission of challenged material. This process continued until 17 November 2021 when the Crown and defence provided opening addresses. 4. The trial proceeded as a judge alone trial. The evidence concluded on 10 December 2021. Addresses followed on 13 December 2021 and 17 December 2021, the final day of the law term in that year and the proceedings were thereafter adjourned for judgement in 2022. THE CROWN CASE 1. The Crown cases began with the evidence given by the complainants. The Crown case in respect of each count depends upon the evidence of the complainant with the support provided by evidence of tendency, context, complaint, and coincidence. Ultimately whether the accused is guilty of an offence depends upon the Court accepting as truthful and accurate the evidence of the complainant in each case. 2. The admissibility of evidence for tendency purposes and coincidence was argued before Wilson SC DCJ who delivered judgement on 8 April 2021. The decision was made upon an indictment alleging 15 counts in respect of the three complainants. The cover page of the copy of the judgement provided on the Court file erroneously refers to there being 14 counts. 3. The indictment before his Honour is read subject to the amendments dealt with earlier in this judgement. Moreover count 5 in the indictment before his Honour appears at count 6 in the indictment in this trial. 4. This was achieved with the variation whereby former count 5 became count 6 and former count 6 became count 5. I include below a table prepared by the Crown providing columns whereby comparisons can be made between the structure adopted in the indictments. Trial Indictment (version #37.2) Indictment considered by Judge Wilson (version #9.2) Complainant RH Count 1 Count 1 S91H(2) S91H(2) Produce child pornography Produce child pornography Count 2 Count 2 S 66EB(3) S 66EB(3) Groom child under 14 Groom child under 14 Count 3 Count 3 S 66C(2) S 66C(2) Aggravated sexual intercourse child 10-14 Aggravated sexual intercourse child 10-14 Count 4 Count 4 S 66C(2) S 66C(2) Aggravated sexual intercourse child 10-14 Aggravated sexual intercourse child 10-14 Count 5 Count 5 (trial Count 6) S 66C(2) S 61O(1) Aggravated sexual intercourse child 10-14 Aggravated incite act of indecency child under 16 Count 6 (pre-trial Count 5) Count 6 S 61O(1) S 66C(2) Aggravated incite act of indecency child under 16 Aggravated sexual intercourse child 10-14 Count 7 Count 7 S 61O(1) S 61O(1) Aggravated incite act of indecency child under 16 Aggravated incite act of indecency child under 16 Count 8 Count 8 S 66C(4) S 66C(4) Aggravated sexual intercourse child 14-16 Aggravated sexual intercourse child 14-16 Complainant AH Count 9 Count 9 S 91H(2) S 91H(2) Produce child abuse material child abuse material Count 10 Count 10 S 66C(2) S 66C(2) Sexual intercourse child 10-14 (under authority) Sexual intercourse child 10-14 (under authority) Count 11 Count 11 S 66C(2) S 66C(2) Sexual intercourse child 10-14 (under authority) Sexual intercourse child 10-14 (under authority) Count 12 Count 12 S 66C(2) S 66C(2) Sexual intercourse child 10-14 (under authority) Sexual intercourse child 10-14 (under authority) Count 13 Count 13 S 66C(2) S 66C(2) Sexual intercourse child 10-14 (under authority) Sexual intercourse child 10-14 (under authority) Complainant SC-A Count 14 Count 14 S 66EB(3) S 66EB(3) Groom child under 14 Groom child under 14 Count 15 Count 15 S 61O(2) S 61O(2) Commit act of indecency child under 10 Commit act of indecency child under 10 1. At the outset I was informed that the judgement delivered by his Honour was not one of the pre-trial issues to be resolved: voir dire transcript at p 10. 2. The submissions made on behalf of the accused at the close of the evidence and after the Crown spoke to the written submissions it provided, did not challenge the use of the evidence allowed by his Honour for tendency and coincidence reasoning. However, upon the terms used in the orders dealing with evidence for coincidence purposes and the reading of his Honour's judgement overall, there was some concern about whether his Honour might be understood to have blended the concept of tendency with the evidence he allowed for use as coincidence evidence, and thus, to avoid the risk that the Crown might be thought to be seeking to rely more expansively upon evidence upon which it relied for coincidence purposes, written submissions were provided to confirm the scope of the Crown's reliance drawing upon his Honour's judgement: voir dire transcript p 12 at p 244 and following. 3. The Crown acknowledged that upon the entirety of his Honour's judgement the Crown has leave to use certain pornographic material as coincidence evidence in respect of then count 5, now count 6, and count 7 respectively but not as tendency evidence. 4. The Crown relies upon the pornographic material as coincidence evidence in respect of count 6 and 7 consistent with his Honour's rulings and alleges that the pornography in the accused's home and the allegations made by the complainant RH about the conduct in counts 6 and 7 are not coincidental. The Crown does not reagitate for the use of that pornographic material for tendency purposes for which use it had argued before his Honour. 5. His Honour's ruling upon the Crown's application to rely upon evidence for tendency and coincidence drawn from JusticeLink were as follows. Herein his Honour's reference to count 5 should be read as related to count 6 in the present indictment. A. Tendency First Ruling 1. In respect of the eight counts relating to RH leave is granted to the Crown to use her evidence on each count as tendency evidence in respect of the other counts on the indictment related to RH in an attempt to prove: I. The accused's tendency to have a particular state of mind, namely a sexual interest in RH, and II. The accused's tendency to act on that sexual interest by engaging in sexual conduct with RH. Second Ruling 2. In respect of the five counts relating to AH leave is granted to the Crown to use her evidence on each count as tendency evidence in respect of the other counts related to AH in an attempt to prove: I. The accused's tendency to have a particular state of mind, namely a sexual interest in AH, and II. The accused's tendency to act on that sexual interest by engaging in sexual conduct with AH. Third Ruling 3. Leave is granted to the Crown to rely upon the evidence of each of the complainant on the indictment as tendency evidence in respect of the counts relating to each of the other complainants in an attempt to prove: I. The accused's tendency to have a particular state of mind, namely a sexual interest in young teenage and pre-teenage girls and II. The accused's tendency to direct on that sexual interest by engaging sexual conduct with young teenage or pre-teenage foster children placed in his care at times when he was the only adult in the presence of those female children. 4 Leave for the third ruling is conditional upon the following questions and/or answers being deleted from the JIRT interview of SC-A on 1 February 2018. i. A 64; ii. Q 65; iii. A 210; iv. Q 211; v. Q and A 216; vi. Q and A 217; vii. Q and A 218; viii. Q and A 219; and ix. Q 226. Fourth Ruling 5. In respect of each of the counts on the indictment, leave is refused to rely upon the accused's possession of pornography (table 1) to the Crown's submission (MFI #1), and the use of it for tendency purpose. That is to establish that the accused had a tendency to have a particular state of mind, namely a sexual interest in young teenage and pre-teenage female children. B. Coincidence Fifth Ruling 6. Leave is refused for the Crown to rely upon coincidence reasoning in respect of the following two events: I. The complaint about the accused by RH and AH (first event) and II. The complaint about the accused by FCA (the second event) ... Sixth Ruling – Counts 1 and 9 7. Leave is refused to rely upon coincidence reasoning in respect of the following events: I. That between August 17 and March 18, RH and AH each made a complaint about the accused, taking photographs of their vaginas in the particular manner specifically that 1. the photograph was taken of their exposed naked vagina; 2. the accused took the photograph in a very close proximity; and 3. the photograph only depicted their vaginas and not their face of the room/surroundings; and II. That on 12 August 2018, several USB drives containing pornography were found at the home of the accused and the images of those USB drives included at least 156 images that were photographs: 1. depicting an exposed naked vagina (without pubic hair); 2. that appeared from the image to have been taken in a very close proximity and 3. the only depicted close-up image of a vagina and not the subject's face or surroundings. Seventh Ruling - Count 5 (Count 6 in the present indictment) 8. Leave is granted to rely upon coincidence reasoning in respect of the following events: I. that the accused asked RH to insert food (specifically lollies) into her vagina and after she had done so he ate it and indicated taste good; and II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused and that the pornography included the images and videos of females inserting food (including chocolate Easter eggs, cherry tomatoes, cucumbers, courgettes, pumpkins) into their vagina or anus. 9. The Crown relies upon that evidence to show that the accused: I. Did a particular act, namely the act alleged in count 5 on the indictment (count 6 in the present indictment); and II. Had a particular state of mind, namely a sexual attraction to the insertion of foods into vaginas. 10. I note that the Crown relies upon the evidence brought in support of its case on count 5 (now count 6) alone. Eighth Ruling 11. Leave is granted to rely upon coincidence reasoning in respect of the following events: I. that on one occasion the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath; and II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused, and that pornography included multiple images of videos of females inserting bottles into their vaginas or anus (including but not limited to: moisturiser bottles, plastic soft drink bottles, tomato sauce bottles, various glass bottles and various bottles of alcohol). 12. That evidence is to be tendered in an attempt to prove that the accused: I. Did a particular act, namely the act alleged in count 7 on the indictment and II. Had a particular state of mind, namely a sexual attraction to the insertion of bottles into vaginas. 13. The Crown relies upon the evidence in support of its case on count 7. Ninth Ruling - Count 7 (Household items) 14. Leave is refused to rely upon coincidence reasoning in respect of the following events: I. that on one occasion the accused asked RH to insert everyday household objects, being two shampoo bottles, into her vagina while he was watching in the bath; and II. that on 12 March 2018, several USB drives containing pornography were found at the home of the accused and that pornography included multiple images of video of females inserting ordinary household items (including but not limited to garden hose, remote control, metal aerosol can, mobile phone, moisturiser bottles, tomato sauce bottle, grass condiment container, assorted soft drink or alcohol bottles into the vaginas or anus) save for images 3WF and 4XF in respect of which leave is granted. 15. The evidence was sought to be tendered in an attempt to prove that the accused: I. did a particular act, namely the act alleged in count 7 on the indictment; and II. had a particular state of mind, namely a sexual attraction to the insertion of ordinary household items into the vaginas. 16. I note that the Crown sought to rely upon the evidence in support of its case on count 7. Conditions of Grant of Leave – Counts 5 (now Count 6) and 7 17. The leave granted above is conditional upon pornography evidence tendered by the Crown being alluded to the following: I. In respect of count 5 ((now count 6) (the seventh ruling) - inserting food), to the material referred to in para 102 of MFI #1; II. In respect of count 7 (the eighth ruling - bottles) to the material referred to in para 113 of MFI #1, save for images B23 (17 May 2012), which is not pressed by the Crown and III. Images 3WF and 4XF in paras 119 of MFI #1. 18. I confirm that the trial date of 8 November 2021 with an estimate of three to four weeks. TENDENCY EVIDENCE - COINCIDENCE EVIDENCE 1. The Crown relies upon evidence of alleged misconduct of the accused as tendency evidence and coincidence evidence. I must bring to mind the principles to be applied. 2. Effective from 1 March 2021, s 161A Criminal Procedure Act provides: 1. A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence. 2. If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt but only to the extent that it is adduced as proof of the element or essential fact. 3. Subs (1) does not apply if the Court is satisfied – 1. there is a significant possibility that the jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and 2. evidence of the act or omission has been adduced as tendency evidence or coincidence evidence. DIRECTIONS RELEVANT TO TENDENCY EVIDENCE 1. The Evidence Act 1995 provides for tendency evidence in s 97 which is in the following terms: 1. Evidence of...a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of a person's character or otherwise) to act in a particular way, or have a particular state of mind unless – 1. the party seeking to adduce the evidence gave reasonable notice in writing to each other party if the party's intention to adduce the evidence, and 2. the Court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence have significant probative value. 1. Subsection (1)(a) does not apply if – 1. the evidence is adduced in accordance with any direction made by the Court under s 100, or 2. the evidence is adduced to explain or contradict tendency evidence adduced by another party. 1. From 1 July 2020 the Evidence Act 1995 included s 97A. This applies to proceedings other than those, the hearing of which had commenced before that date. It provides the presumption of the significance of the probative value of the proposed tendency evidence in proceedings involving child sexual offences. Judge Wilson SC did not refer to this in his judgement. 2. In the second reading speech for the Evidence (Tendency and Coincidence) Act 2020 No 8, which commenced from 1 July 2020, the Attorney General said with respect to the transitional provisions in cl 28 of schedule 2 of the Act (Hansard Legislative Assembly 25 February 2020): "...the intent of the transitional provisions is that, first, in a case of summary proceedings, the reforms will not apply to matters in which a court attendance notice was filed prior to the commencement of the reforms; and, secondly, in the case of a trial heard on indictment, the reforms will not apply to matters in which an indictment has been presented and the accused person has been arraigned prior to the commencement of the reforms. The reforms will apply in circumstances where a court attendance notice has been filed in respect of an offence that will be heard on indictment but where the indictment has not yet been presented and the accused person has not been arraigned. I note that this intent is consistent with a decision of the Court of Criminal Appeal in GG v R [2010] 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230; BC201007553. In that decision, which considered the 2007 transitional provisions, the Court of Criminal Appeal held: There is no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial. The purpose of the transitional provisions is to prevent the reforms impacting a proceeding, the hearing of which has already commenced. The text at proposed cl 28 sub-cl (1), which provides that an amendment made to the Evidence Act by the bill "does not apply in relation to proceedings the hearing of which began before the commencement of the amendment", is intended to mean that the amendments to the bill will not affect Court proceedings that have commenced, first, in the Local Court in the case of summary hearing; or, second, in the District or Supreme Court in the case of a trial on indictment" 1. In GG v R ibid the meaning of the phrase "proceedings the hearing of which began before the commencement of the [Provision or Act]" Beazley JA with whom the other members of the Court agreed wrote at para [102]: "..., the Evidence Act is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, I am of the opinion that, on its proper construction, it is referring to the hearing of a particular proceeding, in this case, trial on indictment". 1. I need not consider whether the attribution to the Court of Criminal Appeal in the second reading speech is a fair reflection of the careful and thorough analysis for the conclusions reached by Beazley JA. Neither is there need for me to consider the effect of 97A of the Act in this case, for I have come to the view that the decisions reached by Judge Wilson regarding the probative value of the evidence of tendency and coincidence purposes are sound and I agree with them. Moreover, the application of this provision to these proceedings has not been the subject of argument before me, and it did not inform his Honour's decisions which the parties have not sought to reagitate. As noted, Mr Conditsis has not made submissions against the use of the evidence for the purposes of the tendency rule and the coincidence rule in accordance with his Honour's judgement. 2. I do not overlook however that implicit in Mr Conditsis's defence of the accused is the proposition that the evidence upon which the Crown relies for the tendency rule and the coincidence rule, regardless of the probative value that it has alone for admission under s 97 and s 98 respectively, and upon consideration of s 101 Evidence Act 1995, is not sufficient to support the allegations by the complainant to which it is relevant, and in combination with the balance of the evidence, that the Crown case does not prove beyond reasonable doubt the accused's guilt. 3. The Crown submits that the Court would be satisfied the accused had the tendency for which it contends, as expressed in the rulings given by Judge Wilson SC because of his conduct as described by his Honour. I need not repeat the tendency and conduct for which the Crown contends here. 4. The Crown says this conduct reveals the accused had the tendency there described which makes it more likely he committed the offences charged in the indictment. 5. I must consider the evidence relating to the alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so I do not consider each of the acts in isolation. I shall consider all the evidence and decide what conduct I am satisfied occurred. 6. If I decide that all, or at least some of the conduct occurred, I then must consider whether it enables the inference to be drawn that the accused had the tendency for which the Crown contends. 7. I note the care that must be applied to the drawing of inferences; that I must consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I must bear in mind those directions when considering this part of the evidence. 8. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In those circumstances I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown case. 9. If I find the accused did have the tendency for which the Crown contends then I can use that in considering whether it is more likely that he committed the specific offences with which he is charged. It is essential that I consider in relation to each charge whether the accused acted in a particular way and had the particular state of mind alleged on that specific occasion. 10. Finding the accused to have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on many of the occasions that are the subject of the charges. That is the only way the accused's tendency may be used. 11. Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown provided I am satisfied it has been established. 12. When considering whether a charge has been proved, I must decide whether the Crown has proven the essential elements in the charge. DIRECTIONS RELEVANT TO COINCIDENCE EVIDENCE 1. As part of its case against the accused, consistent with the rulings of Judge Wilson SC, the Crown has led evidence that the accused asked RH to insert food (specifically lollies) into her vagina and after she had done so, he ate it and indicated it tasted good, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused that included images and videos of females inserting food, including chocolate Easter eggs, cherry tomatoes, cucumbers, courgettes, pumpkins into their vaginas or anus. The Crown relies upon that evidence in support of its case on count 6 alone, to show that the accused did the act alleged and had a sexual attraction to the insertion of foods into vaginas. 2. The Crown has also led evidence in support of its case in count 7 that on one occasion the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused which included multiple images of videos of females inserting bottles into their vaginas or anuses to prove that the accused did the act alleged in count 7 on indictment, and had a sexual attraction to the insertion of bottles into vaginas. 3. The Crown, in accordance with his Honour's ninth ruling, also led evidence that the accused asked RH to insert a shampoo bottle into her vagina while he was watching her in the bath, and that on 12 March 2018, several USB drives containing pornography were found at the home of the accused including the images identified as 3WF and 4XF, permitted by his Honour Judge Wilson SC to prove that the accused did the act alleged in count 7, and had a sexual attraction to the insertion of ordinary household items into vaginas. 4. As noted above listed, lest it be thought from the language used by his Honour that the Crown was endeavouring to rely upon this evidence for tendency purposes, the Crown has made it clear that the Crown relies upon the pornographic material as coincidence evidence in respect of count 6 and 7 on the indictment, consistent with his Honour's rulings, and alleges that the finding of the pornography in the accused's home and the complaints made by the complainant about the conduct in counts 6 and 7 were not a coincidence. 5. I note that the pornographic material found in the accused's home and relied upon as coincidence evidence is agreed between the parties and appears in the agreed facts tendered during the trial. 6. This evidence is tendered in support of the contention by the Crown that there is such a strong similarity between acts founding counts 6 and 7 respectively, and the possession of the pornographic material found in the circumstances described, that the Court would be satisfied that the accused had that material and must have done the acts charged, that is to say, there is such a significant similarity between the two acts, namely, those charged, and the possession of the material, that it is highly improbable that the events occurred simply by chance or coincidence. The improbability of two or more events occurring by chance or coincidentally may lead to a conclusion that the accused committed the acts, the subject of the charges. 7. The Crown says that the Court would be satisfied the accused possessed the pornography, that it depicted conduct such as the accused had the complainant engage on alleged counts 6 and 7, and that it was also so similar to the acts alleged in counts 6 and 7 that the Court would conclude beyond reasonable doubt that the accused must have committed the offences with which he has been charged in counts 6 and 7. 8. The evidence of the pattern of behaviour can only be used in the way the Crown asks if I find, first, that the accused did have possession of the pornography depicting the images as described and, secondly, that the depictions are so similar to the acts giving rise to the charge, that I find it is highly improbable both acts were unrelated. If I accept those two matters, then I can use that evidence together with the other evidence in the Crown's case to be satisfied beyond reasonable doubt that the accused committed the acts giving rise to the offences charged in 6 and 7. 9. This is the only way I can use the evidence of other acts. I cannot reason that because the accused may have had possession of pornographic material that he is the type of person who will commit criminal activity generally or that he is a person who is likely to have committed the offences charged. The evidence is not before me for that type of general reasoning. I cannot punish the accused for the possession of the pornography attributed to him by finding him guilty of the charges on the indictment. CONTEXT EVIDENCE 1. There are several important directions I must bear in mind regarding the evidence of context that the Crown relies upon. 2. Before the accused may be found guilty of any charge on the indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred as alleged by the complainant. 3. The Crown led evidence of other acts of alleged misconduct by the accused towards the complainants, RH and AH. These other acts are not the subject of the charges. 4. The evidence of other acts alleged by RH was: 1. The accused would take her back to the shed in the rear yard of the property and touch her vagina and breasts beneath her clothing; 2. In the shed he showed her a video pornography depicting multiple males having sex with a woman; 3. In the shed he had penile vaginal sexual intercourse with her; 4. In a car he touched her vagina and breasts beneath her clothing after netball training. 1. The evidence of other acts alleged by AH was: 1. Digital penetration of and playing with her vagina after lowering her pants and underpants at least once a week including in her room; 2. Digital penetration of her vagina after lowering her pants and underpants twice in the loungeroom; 3. In the upstairs lounge room showing images of females with dildos and females and males having sex; and 4. Digital penetration of her vagina in the spare room when on a bed after the accused lowered her pants and underpants. 1. This evidence was admitted solely for the purpose of placing the evidence of each of these complainants towards proof of the charges into what the Crown says is a realistic and intelligible history of the conduct by the accused toward the complainant in each case as she alleges it took place. 2. The Crown advances this evidence upon the argument that without the evidence of these other acts one might wonder about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstances to link them in any way. Without the evidence of the other acts, the Crown would submit that the complainants' evidence was less credible. The evidence is only to answer questions as might otherwise arise about the allegations in the charges on the indictment. 3. The Crown submission is that with the particular acts charged placed in wider context of what the complainants allege was an ongoing history of the accused's conduct toward them in each case, what might appear to be a curious feature of the complainants' evidence that they did not complain about what was done to them on a particular occasion would then disappear. 4. Thus, the law permits a complainant to give an account of the alleged sexual history between herself and an accused person in addition to the evidence given in support of the charges on the indictment to avoid artificiality or unreality in the presentation of the evidence from the complainant and allows the complainant to more naturally and intelligibly explain their account of what allegedly took place. 5. The Crown can therefore lead evidence of other acts of a sexual nature between the accused and the complainant to place the charges into the context of the complainants' account of the whole of the accused's alleged conduct. 6. However, when this evidence is put before the Court for this purpose only as in this case, I must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainants made other allegations against him. If admitted for context purposes only, the evidence has that very limited purpose and it cannot be used for any other purpose or as evidence that the allegations contained in the charges have been proved beyond reasonable doubt. 7. I must not substitute the evidence of the other acts for the evidence of these specific charges on the indictment. The Crown is not charging the course of misconduct by the accused but has charged particular allegations arising in what the complainants say was a course of sexual misconduct. I am concerned with a particular and precise occasion alleged in each charge. 8. I must not reason that because the accused may have done something wrong to a complainant on some other occasion, he must have done so on the occasions alleged in the indictment. I cannot hold the accused accountable for other acts attributed to him by finding him guilty of the charges in the indictment. This would amount to a misuse of the evidence. COMPLAINT 1. The Crown relies upon what the complainants said to others about the alleged conduct by the accused as evidence that such did occur. Section 66(2) Evidence Act 1995 provides for such evidence. 2. This evidence is then available to the tribunal of fact called upon to decide whether the complaint was made and in what its contents were. 3. If the complaint was made substantially to the effect of what the complainant alleges, the evidence of what was said in the complaint can be used as some evidence independent of the evidence given by the complainant that such conduct did occur. It thus may be used as evidence of the truth of what the complainant alleged. The Court would be entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was less likely to have been fabricated and more likely to be accurate. Other matters that can also be considered include evidence of distress. 4. The Crown also contends that the fact that the complainants raised their allegations against the accused at the time and in the manner they did, would lead one to accept their evidence as more believable than if they had not raised the allegations as they did. 5. If satisfied that complaint was made, the question is did the complainant act in the way one would expect if they had been the subject of the alleged conduct. Is what they did the sort of conduct one would expect of a person who has been treated in that way. If the complainant has done what one would expect someone in their position to do that may support the Crown case because of consistency between the complainant's conduct and the allegation against the accused. 6. On the other hand, if the complainant has not acted in the way one would have expected someone to act and after being assaulted as described, then that may indicate that the allegation is false. But one must bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged conduct and that a failure to do so does not mean that the allegation must be false. 7. 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. 8. Offences contrary to s 61O, 66C and s 66EB Crimes Act 1900 are prescribed sexual offences as defined in s 3 Criminal Procedure Act 1986. 9. Section 293A Criminal Procedure Act 1986 provides: 1. This section applies if, on the trial of a person for prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability. 2. In circumstances to which this section applies, the Judge may inform the jury – 1. that experience shows – 1. people may not remember all the details of a sexual offence or may not describe the sexual offence in the same way each time, and 2. trauma may affect people differently, including affecting how they recall events, and 3. it is common for there to be differences in accounts of a sexual offence, and 4. both truthful and untruthful accounts of a sexual offence may contain differences, and 1. that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability. 1. In this section difference in an account includes – 1. a gap in the account, and 2. an inconsistency in the account, and 3. a difference between the account and another account. 1. This provision was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No. 33 which has been effective since 1 December 2018. This amendment was introduced after the commencement of the proceedings against the accused. JusticeLink records that the accused was charged with the first series of offences on 12 March 2018 and additional charges on 20 November 2018. 2. Section 294 Criminal Procedure Act 1986 provides relevantly for this trial: 1. This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest – 1. an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or 2. delay by that person in making any such complaint. 1. In circumstances to which the section applies, the judge – 1. must warn the jury that absence of a complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and 2. must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and 3. must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning. 1. ... 1. Section 294AA Criminal Procedure Act 1986 provides: 1. a judge in any proceedings to which this division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. 2. without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. 3. Sections 164 and 165 of the Evidence Act 1995 are subject to this section. 1. Submissions on behalf of the accused vigorously asserted that the evidence of when complaints were made by the complainants, the terms of the complaints attributed to them, and failure to exploit the opportunities to expose the conduct which they alleged of the accused, were patent indications that the allegations made against him are at least unreliable if not entirely untruthful. 2. There are differences between the evidence describing the offences alleged and what was represented regarding them on other occasions, including in the course of complaint. It is appropriate that the Court brings to account the consideration of matters promulgated in s 293A(2) Criminal Procedure Act notwithstanding the commencement date of the provision to which I referred. Those matters identified in the legislation are not proscribed from consideration as considerations under the general law when assessing whether any differences in the complainants' accounts are important in assessing their truthfulness and reliability. 3. In this case it is important to note that when the alleged events occurred the complainants were children in a controlled environment living apart from their families from troubled circumstances where it is alleged that the offences occurred at the instance of the husband of the couple with whom for foster care they were placed. This is a factor that I have not overlooked when assessing the issue of delay in complaint when it is said on behalf of the accused that there were adequate opportunities for the children to ask for help if the allegations were true. Significant in my view is the evidence before the Court of the encouragement to RH and AH to remain in foster care and not return to their birth family given by representatives of the organisation through which they were placed with the accused and his wife. EVIDENCE ADDUCED BY THE CROWN (WITH REFERENCE TO THE CROWN TABLE OF PARTICULARS) 1. The evidence adduced by the Crown has been helpfully set out in a table that was provided and to which I have had access for the purposes of the consideration of the matters before me. There is no challenge to the proposition that what the Crown has provided by this document with reference to the transcript and exhibits is a fair representation of the evidence to which the document refers. 2. The document deals first with the complainant RH. Count 1 Produce child pornography Transcript – 17/11/21 – page 42 line 20 – page 44 line 50 "Q. Can you tell his Honour a bit more about that? A. Well, we got along to a point and that. Q. How did your relationship with the accused go on for like that? A. About a year ago - sorry, about a year and a bit. Q. When you say 'a year and a bit', can you be any more specific about how long? A. Probably year and three - six months. Q. What happened after the one year and three to six months or thereabouts? A. He started touching me and taking photos. Q. We'll break that up and we'll just go slowly. When you say he started touching you, what do you mean by touching? A. Touching my vagina and boobs. Q. And you mentioned that he would take photographs? A. Yep. Q. I want you to just focus on the first time that he took photographs, where were you when that happened? A. I was in the games room that they were building into another room". Q. Was this on the first floor or a different floor of the house? A. The first floor, sorry. Q. That's alright, take your time, so you were in this games room? A. Yes. Q. Thinking back to that room where exactly were you in that room? A. Somewhere in the middle of it. Q. Where was Ray? A. Just on the outside where he was building. Q. How big was the room, was it a big room or was it a small, like a bedroom? A. Small bedroom. Q. What's the next thing that you remember? A. He asked me to get undressed and bend over so he would take photos of my vagina. Q. When you say he asked you to get undressed, try to remember the words that he used, what did he say to you? A. I can't remember the words. Q. Just take your time and think about it and do the best you can, the best that you can remember? A. 'Are you able to take your pants off?' and then he said, 'would you be able to pull down your undies and then bend over'. Q. When he said those things to you did you say anything back to him? A. No. Q. After he said these things to you did you do anything? A. I done what he asked. Q. Can you just explain to his Honour what you did? A. I pulled down my pants and undies and then bent over. Q. What happened next? A. Ray started taking photos and-- Q. What was he taking photographs of? A. My vagina. Q. Do you know how many photos he took? A. No but there was a few. Q. How do you know that there were a few? A. I heard the clicks on the camera. Q. How long did it take for him to take those few photographs? A. Five minutes. Q. Did he say anything to you while he was taking the photographs? A. I'm not sure. Q. What was he using to take the photographs? A. It was a black Cameron - camera. Q. Sorry can you just say that again for me? A. A large black Cameron camera. Q. Are you talking about the brand there? A. The - the brand yeah. Q. Was it a big camera or a small camera or somewhere in between? A. Medium to large. Q. Can you describe anything about the lens of the camera? A. No. Q. After he took the photos what was the next thing that he did if anything? A. I put my clothes back on and just went and had a look at the photos. Q. What did you see when you looked at the photographs? A. My vagina. Q. How did it come about that you could see the photographs? A. He asked me to come and have a look. Q. Where were you when he asked you to come and have a look, were you still in that room or-- A. Yeah. Q. --in a different room? A. I was still in the room. Q. Did he say anything else to you when he showed you the photographs? A. No. Q. After he showed you the photographs what's the next thing that happened? A. It was probably six months afterwards and I'm not sure if it was in the guest bedroom or the back shed. Q. Okay we'll just pause there and we'll take those one by one? A. Yeah. Q. Before we do the incident that's happened in the gaming room, the photographing incident, was JH still living in the house at the time that happened? A. Yes. Q. Were you in Primary School or High School at that time? A. Primary. Q. Do you remember what Year you were in? A. Year 5, I think. Page 58 line 50 to page 59 line 25 "Q. When you were living in the house at Wyee, did you tell anyone about what was happening with the accused? A. Not when I was living with them. Q. Did you ever tell Pauline Maguire what was happening? A. No. Q. Why not? A. Ray asked me not to because it was his and my little secret. Q. When did he say that to you? A. When he was taking photos in the bedroom. Q. So that was the very first incident they were talking about? A. Yes. Q. And can just do your best to use the words the words that he used. What did he say to you? A. He said, 'You can't tell anyone, this is mine and your secret'. Q. How did that make you feel when he said that? A. I'm not sure. Q. Just think back to the time when he said that to you and take your time. How did it make you feel when he said those words to you? A. I'm not sure." Count 2 and count 3 Grooming and digital penetration Transcript – 17/11/21 – page 45 line 45 to page 48 line 5 "A. After that on a different occasion in the shed he would - he was the porn, porno and he would also touch me under my clothes then. Q. So this is a second time or a next time after the very first time you've told us about? A. Yes it's next time. Q. How long after the first time in the shed did this second time happen? A. Probably a week. Q. You said that he was touching you underneath your clothing, is that right? A. Yes. Q. Where was he touching you? A. On my vagina. Q. What was he using to touch you? A. His hands and fingers. Q. Can you just describe it in a bit more detail for his Honour what he was doing? A. He was putting his fingers inside my vagina and rubbing my clit. Q. How long did he do that for? A. Probably roughly five minutes. Q. Did he say anything while he was doing it? A. Just that I was pretty and that I looked nice. Q. Did you say anything to him while he was doing these things? A. Just that I didn't want to do it. Q. Can you try and use the words that you said to him? A. I think it was along the lines of, 'Can you stop please, I don't want to do it'. Q. Did he reply or answer you? A. Not that I can recall. Q. When he was putting his fingers into your vagina, how did you feel physically? A. A bit out of place, a bit weird. Q. What could you feel physically? A. Just his hands up in my vagina. Q. You said you felt a bit out of place and a bit weird. Why did you feel weird? A. 'Cos I had never had anyone touch me like that before. Q. You mentioned before that there was pornography. Just so I'm clear was the pornography playing at the time he was touching you or is that not right? A. Yes. Q. It was? A. Yes. Q. What was the pornography? A. About five men having sex and with a woman. Q. While that pornography was on did the accused say anything to you at all? A. He asked if - if I would like him to do some of those things to me. Q. When he said these things, what did you think he meant? A. Sex, having sex. Q. Why did you think that? A. Because that's what was on the porno that was playing. Q. And when he said that to you, 'Do you want me to do these things to you?' or something like that, did he do anything physically with his hands or anything? A. Not straight away. It was because I was uncomfortable I - he waited until the next time when he was fingering me while we were watching it. Q. Is this a different day again? A. Yes. Q. This is another time in the shed? A. Yes. Q. How long after the second time in the shed did this incident occur? A. A few days later or so, two maybe three. Q. What did you do on that occasion? A. He played the tape and I'd laid down on the ground with blankets and he would start playing with my vagina while the porno was playing and eventually it moved to him having sex with me. Q. When you say, 'Eventually it moved to him having sex with you', what do you mean by having sex? A. His penis went into my vagina. Q. The porno that you've talked about, was that the same pornography on the second instant or a different pornography? A. The same. Q. You've told us about three different times in the shed, were they the only times in the shed or were there more? A. There was more. It was that time before the shed was rebuilt and after the shed was rebuilt. Q. What you've just described to us now, those three incidents, were they before or after the shed was rebuilt? A. Before. Q. Do you remember what year you were in at school when the shed was rebuilt? A. I think year 6. Q. Were you still going to Wyee Public School at the time? A. Yes." 1. The allegations, as I said, for counts 2 and 3 are respectively grooming and digital penetration. The evidence extending to the third occasion in which penile/vaginal penetration was alleged to have occurred is part of the context evidence summarised by the Crown in the table it provided, to which I spoke after the luncheon adjournment. 2. Prior to the adjournment the Crown rose to bring to my attention R v Chonka [2000] NSWCCA 466 at [50] of the joint judgement where the Court wrote, "One other specific defect in the summing-up should be noted. There is a degree of ambiguity in the trial judge's statement "that the ordinary meaning of the word incite is to do some act intending to urge, suggest or stimulate to action". The point can be illustrated by reference to a suggestion relied upon as an incitement. The suggestion might be intentionally (i.e. deliberately) made without any intention that it be acted upon; for example, a suggestion intentionally made might be ironic or vulgar abuse. Before the appellant could be convicted, the jury had to be satisfied beyond reasonable doubt that he intended the complainants to engage in the sexual activity which he suggested with the persons whom he identified (or was recklessly indifferent to whether or not they did so)." 1. The point raised I would summarise thus: * This applied to Counts 6 and 7 but not Count 15; * The Crown submitted, "… the jury having to be satisfied beyond reasonable doubt that the incite charges, that the accused intended the complainant to engage in the sexual activity which the accused was suggesting. So there's an element of intention which isn't obvious from the wording of the legislation." * Thus, there was the need for the Crown to prove an element in terms of that discussed in R v Chonka ibid, with which I agreed; * Mr Mantaj appearing for the accused to take judgement noted that there was no prejudice to the accused in the Crown rising to bring this to the court's attention. Context Evidence Showing pornography and touching her genitalia Transcript – 17/11/21 – page 45 line 20 to line 41 1. Turning next now to the context evidence from RH in respect of being shown pornography and touching of the genitalia on 17 November 2021 from p 45 line 20 to line 41. The evidence was in the following terms. "A. Ray would take me down to the back of the shed and he would touch me on my vagina and he had video pornography that he would show me. Q. Sorry, you said had video pornography that he would show you? A. Yes. Q. What did you see when he showed you it, what was on the video? A. A lot of guys having sex with a woman. Q. The very first time, the very first time it happened, are you able to tell his Honour about the very first time it happened and what the accused did? A. So we were down in the shed, he would touch my vagina and my boobs. Q. Were clothes on or off at the time, that time? A. They were on. Q. Was he touching over the top of clothes or underneath the clothes? A. Underneath the clothes. Q. Whilst this was happening you mentioned pornography before could you see pornography at this time? A. No not at that time." Context Evidence Penile vaginal sexual intercourse in the shed Transcript – 17/11/21 – page 47 line 28 to page 48 line 50 1. The next evidence from RH concerned context evidence, the conduct penile vaginal sexual intercourse in the shed. The transcript reference on 17 November 2021, page 47 line 28 to page 48 line 50. 2. I note that there is some replication of what was previously quoted in respect of Counts 1 and 2. "Q. What did he do on that occasion? A. He played the tape and I'd lay down on the ground with blankets and he would start playing with my vagina while the porno was playing and eventually it moved to him having sex with me. Q. When you say eventually it moved to him having sex with you, what do you mean by having sex? A. His penis went into my vagina. Q. The porno that you've talked about was that the same pornography on the second incident or different pornography? A. The same. Q. You've told us about three different times in the shed, were they the only times in the shed or were there more? A. There was more, it was that time before the shed was rebuilt and after the shed was rebuilt. Q. What you've just described to us now, those three incidents were they before or after the shed was rebuilt? A. Before. Q. Do you remember what year you were in at school when the shed was rebuilt? A. I think year 6. Q. Were you still going to Wyee Public School at the time? A. Yes. Q. Can you tell his Honour what would happen in the shed after the shed was rebuilt? A. He - I would go down and he would have sex so penis going into the vagina and there wasn't any porn at that time." Q. How many times did that happen where he took you into the shed and had penile vaginal sex with you? A. Probably twice after it got rebuilt. Q. So, two times after it got rebuilt? A. Yeah. Q. How far apart were those times, do you remember? A. Roughly a month. Q. What year were you in school when those things happened? A. Year 6. Q. Did he say anything to you in either of those incidents when he was having sex with you? A. No, not that I can recall. Q. When these things would happen in the shed, where was Pauline? A. Inside the house doing probably the laundry or. Q. You're not sure what she was doing but she was inside the house? A. Yeah, yes. Q. What about your sisters, do you know where they were when these things were happening in the shed? A. No. Q. At the time these things were happening in the shed was JH still living in the house? A. Yes. Q. How long would these incidents last in the shed? A. Roughly, about, roughly five minutes or until he was finished. Q. When you say, 'until he was finished' what do mean? A. After he ejaculated. Q. Do you have a memory of him ejaculating? A. Yes." Count 4 Penile vaginal intercourse in guest room when in primary school Transcript 17/11/21 – page 49 line 26 to page 50 line 25 1. The evidence given by RH in respect of count 4 alleged penile vaginal intercourse in the guest room when she was in primary school, this is at the transcript on 17 November 2021 page 49 line 26 to page 50 line 25: "Q. I just want you to focus now on the incident that happened in the guest bedroom can you tell his Honour what happened in the guest bedroom? A. He asked me to go into the guest bedroom, he asked me to pull down my pants and bend over on the bed and he's put his penis into my vagina and was moving backwards and forth. Q. How long was he doing that for? A. Five minutes roughly. Q. Did he say anything to you while he was having sex with you? A. Not that I can recall. Q. Did you say anything to him while he was having sex with you? A. Just that I wanted to stop. Q. What were the words that you said to him? A. Can we stop? I don't want to do this anymore. Q. What did he say to you, if anything? A. "Just a little bit more please." Q. What could you physical feel or how did you physically feel when he was putting his penis into your vagina? A. It hurt a little bit for the first time and after that it was just kind of numbed. Q. We're talking about the incident in the guest bedroom. Is that the occasion where you can remember it hurting or is that at a different time? A. That, the guest bedroom was when I called it hurting. Q. What happened in the guest bedroom was that before or after the first time in the shed in the backyard? A. Pretty sure it was the first time. Q. It was before the first time or after? A. The, yes, the - it was the first time in the guest bedroom. Q. It was the first time in the guest bedroom? A. Yes. Q. Did it happen before or after the first in the shed? A. Before. Q. How long before? A. I'm not sure. Q. Do you remember what year you were in at school at the time? A. No. Q. Do you remember whether you were in primary school or high school? A. Primary." Count 5 Penile vaginal intercourse in the kitchen Transcript 17/11/21 – page 50 line 28 to page 51 line 45 1. The evidence given by RH in respect of count 5, an allegation of penile vaginal intercourse in the kitchen, is found at the transcript 17 November 2021 page 50 line 28 to page 51 line 45: "Q. Did anything else happen with the accused anywhere else in the house? A. Yes. Q. Where in the house? A. In the kitchen. Q. Was it day or night when this happened in the kitchen? A. Night time. Q. Can you tell his Honour what happened in the kitchen in the night time? A. So they came and got me out of bed, took me into the kitchen. He sat down in the dining room chair and asked me to sit on top of him and sorry, I'm just having a hard time wording it. Q. That's okay, take your time? A. I sat on top of him when his penis went into my vagina. Q. When you sat on his lap, did he say anything to you just before he did that? A. He just asked if I could sit on him. Q. Are they the words he used? A. Yes, he said, "Can you sit on me?" Q. Did you say anything back to him? A. Not at the time, no. Q. After he said that did you sit on him? A. Yes. Q. You said his penis went into your vagina, what's the very next thing that happened? A. I - he asked me to move up and down. Q. What did you do, if anything, once he asked you that? A. I did it but I kept asking if I could stop because I wasn't really wanting to do it. Q. What did you say to him? A. I asked, "Could we stop please I'm - I was tired." Q. Did he say anything to you? A. He just asked if I could keep going for a little bit longer. Q. Did you? A. Probably for about a minute more. Q. What happened after about a minute? A. I hopped off and went back to bed. Q. Where were you sisters when this was happening if you know? A. They were asleep. Q. Was JH still living at the house at this time? A. Yes. Q. Do you know where Pauline Maguire was at the time? A. She was away, I - she went to Canberra for a couple of days. Q. Yes? A. So it was just my two sisters, myself and Ray that was home. Q. Do you remember what time of night this was? A. No. Q. Was that the only incident to happen in the kitchen? A. Yes." Context evidence Touching vagina and breasts in the car Transcript – 17/11/21 – page 51 line 47 to page 53 line 7 1. The next description is with regard to touching of her vagina and breasts in the car, is context evidence found at transcript 17 November 2021 page 51 line 47 to page 53 line 7: "Q. When you started living with Pauline and the accused, did you start playing netball? A. Yes. Q. How long after you moved in with them did you start playing netball? A. Possibly a year or two. Q. Did you have to go to training as part of your netball? A. Yes. Q. Who would take you to the netball training, if anyone? A. It would switch between Ray and Pauline. Q. How often would the accused take you to netball training? A. I'm not sure how many times. Q. How many times a week did you do netball training? A. Just the once a week for the training. Q. The accused took you sometimes, you just can't recall how many times? A. Yes. Q. Were there ever occasions when you were in the car with the accused, alone? A. Yes. Q. Did anything happen while you were in the car with the accused on your own? A. Yes, he would. Q. Yes? A. He would take me to training and after training was finished there's a shop around the corner and up a little. Q. Sorry, what was the last bit, 'there's a shop around'? A. A shop around the corner and up the street a little, he would take me there to get something to eat. I'm not sure how it happened but he would touch my vagina and boobs while we were in the car. Q. Where were you in the car when he would touch your boobs and vagina? A. In the back in the middle. Q. In the back in the middle and where was the accused? A. In the front driver's seat. Q. Was the touching over your clothing or underneath your clothing? A. Underneath. Q. Did anything - apart from those times that you've just told us about, sorry, before I go on. How often would this happen? A. I'm not sure. Q. Using a week as a guide, can you tell us if it happened once a week, more than, less than or you're just not sure? A. Once a week. Q. How long after you started netball did these things start happening? A. A year when I started, it started happening. Q. About a year when you start playing netball? A. Yes." Count 6 Incite act of indecency Transcript – 17/11/21 – page 53 line 9 to page 55 line 5 1. The evidence relevant to count 6, inciting an act of indecency is found at transcript 17 November 2021, page 53 line 9 to page 55 line 5: "Q. Is there anything else that happened in the car with the accused? A. Yes, there was a time when we were going to visit his mum in Cooranbong. Q. Can you tell us the name of that place, again? A. Cooranbong. Q. Cooranbong? A. Cooranbong, yeah. Q. How far from Wyee is Cooranbong roughly? A. Ten minutes, 15 minutes. Q. Who is visiting his mum? A. At that time it was just Ray and myself. Q. How did you get there? A. Ray drove. Q. When he drove, where were you seated in the car? A. In the back on the right side. Q. Can you tell his Honour what happened on this occasion? A. So we were driving, I'm not sure if it was to or coming back from his mother's place but he would pull over into a laneway sort of thing and we had lollies. I moved over into the middle of and he asked me to put some lollies probably five lollies not at once into my vagina. Q. What did he actually say to you? What were the words he used, doing the best you can? A. "Can you put this lolly in your vagina?" Q. Did you do anything when he said those words to you? A. He just handed me a lolly. Q. What did you do, if anything? A. I put it in my vagina and then handed it back. Q. What happened after you handed it back? A. He'd eat them, he'd-- Q. Did he say anything? A. Just that the lollies tasted good. Q. What were the words he used? A. They taste good. Q. How many lollies did he do this with? A. I think he used those words with two lollies and nothing with the rest. Q. How many lollies all up did you say? A. Five. Q. And were they all on that one occasion in the car? A. Yes. Q. You said at the beginning of the incident that you moved into the middle of the back seat, why did you do that? A. Because he asked me to. Q. What did he say to you? A. He asked would you be able to move into the middle and can't remember the exact words but it was something about putting my legs up to have - to put the lollies - easier if - easier access for the lollies. Q. He said something like that to you? A. He asked to put - for me to put my legs up, yes. Q. What did you do after he asked you that? A. I done it. Q. When you say done it, what do you mean? A. I moved into the middle and put my legs up. Q. And was it after that that he handed you the first lolly? A. Yes. Q. Do you remember were you in primary school or high school at the time this happened? A. No. Q. Do you remember what year you were in at all? A. Year 6. Q. You think year 6? A. Yes, because we didn't really visit his mum much in high school. Q. That's why you think it was year 6? A. Yes. Q. When this happened, this incident in the car, was JH still living in the house in Wyee? A. Yes. Q. And do you have any memory of how old you were at the time the incident happened? A. No, no." Count 7 Inciting an act of indecency Transcript – 17/11/21 - page 56 line 37 to page 58 line 13 "A. There was actually an incident in the bathroom. Q. Can you tell his Honour what happened in the bathroom? A. I was in the bathtub and usually in the bathtub I needed help washing my hair when I was like younger. Q. When you say younger, how old do you mean? A. Roughly 12. Q. Do you remember whether you were primary school or high school? A. Primary. Q. Do you remember what year? A. No. Q. Was JH still living at the house? A. Yes. Q. You said you'd need help washing your hair? A. Yes. Q. Can you continue on. A. Because my hair was long and a lot thicker, I wasn't able to do it on my own so usually Pauline would come in and help but she was busy cooking dinner and so Ray came in. Q. What happened when Ray came in? A. He - he'd watch me for a bit and asked me to touch my vagina. Q. What were the words he used? A. I'm not sure. Q. Did you say anything when he asked you to do that? A. I - I said no I don't want to. Q. What's the next thing that happened? A. He asked me if I would be able to put a shampoo bottle up my vagina. Q. Again I know it's hard but just do the best you can to remember what he said to you, the words he used. Did you say anything when he asked you to do that? A. He asked if I would be able to put the shampoo bottle up my vagina. Q. Did you say anything when he asked you that? A. I don't think so. Q. What's the next thing you remember after he said that? A. He left the room and then came back a few minutes later. Q. What happened when he came back? A. He wanted to wait and see if I would be able to put the shampoo up my vagina so. Q. Did he say anything to you to make you think that? A. No, I don't think so. Q. Did you after he asked you about the shampoo bottle, did you do anything at that point? A. I did try to put it up there in my vagina. Q. When you say try what do you mean? A. It was a little bit big so it wouldn't fit up there. Q. What could you physically feel as you were trying to put the shampoo bottle in your vagina? A. That it was hurting, trying to get it in there. Q. Where was Ray when this was happening? A. He was in the bathroom and then he left and came back to see if whether or not I was able to get it in there. Q. After he came back, how long was he in the bathroom for? A. Not long because I was getting ready to pop out. Q. When you say not long, can you be any more specific? How many minutes are we talking? A. Two minutes." Count 8 Penile vaginal intercourse on coffee table upstairs Transcript – 17/11/21 – page 55 line 13 to page 56 line 26 1. The evidence relevant to count 8, penile vaginal intercourse on the coffee table upstairs in the house, is found at transcript on 17 November 2021, page 55 line 13 to page 56 line 26. "Q. Are there many other incidents that you can remember with the accused? A. Yes, upstairs when he got it built. Q. When you say upstairs, is this an area that was upstairs in the house? A. It was built on to the garage, on to the house sort of. Q. Do you remember when that happened, what year? A. No. Q. Do you remember what year you were in at school? A. I think year 6. Q. What makes you think year 6? A. Because I remember being in Wyee Public School with my friends trying to spot our house, well Pauline and Ray's house - cause of the extension. Q. So the extension was sitting up, is that what you are explaining? A. Yes. Q. And you were trying to spot your house with your friends? A. Yes. Q. Was JH still living with you at this time? A. I'm not sure. Q. Can you tell his Honour what happened in the upstairs part of the house? A. He called me up there. Q. What did he say? A. He said, 'R can you come up here please'. Q. What did you do, if anything? A. I went up. Q. What happened next? A. He laid me down on the coffee table, laying on my back, pulled my pants down and then put his penis inside my vagina. Q. How long did he do that for? A. Five minutes roughly. Q. Did he say anything to you while he was doing that? A. He asked if I knew what he was doing. Q. Can you try and use the words he used? A. "Do you know what I'm doing to you?" I said "No", and he said "I'm fucking you." Sorry for the language. Q. You said this lasted about five minutes? A. Yes. Q. What happened after about five minutes? A. I got dressed, I put my pants back on and then went back downstairs. Q. Where was Pauline at the time this was happening? A. I'm pretty sure she was out. I don't recall her being inside. Q. Do you know where she was exactly? A. No. Q. What about your sisters, do you know where they were? A. No. Q. Was there anything else in the house at the time? A. No I don't think so." 1. The Crown table of particulars then turned to the charges brought in respect of allegations by AH. Count 9 Produce child abuse material Transcript - 24/11/21 – page 420 line 33 to page 426 line 5 1. Upon the application by the Crown, I allowed the witness to be examined in terms that allowed her to refresh her memory immediately before this portion of the transcript. I delivered an ex tempore judgement. "Q. A, can you see and hear me? A. Yes. Q. You should have an envelope in there with you labelled Envelope E. Can you take that out for me please? Have you got that document? A. Yes. Q. Is that a document which has the first three pages in typed text? A. Yes. Q. And then behind it there are six pages that are largely in handwriting, do you see that? A. Yes. Q. Is this a copy- those last six pages, is that a copy that you have in there of a statement you provided to the police on 21 March 2019? A. Yes. Q. And the first three pages, do you recognise that as the typed up version of what's in the handwritten statement behind it? A. Yes. Q. I just want to refer you to the handwritten document, so the last six pages? A. Mm-Hm. Q. You will see at the first handwritten page on the top right hand corner it's got 51? A. Yes. Q. And then if you turn over the next page, you can't see a number on the top right hand corner but if you go to the page following that there's a 53? A. Yes. Q. Then if you go to the next page there's no number on the top right hand corner? A. Mm-hm. Q. But if you go to the next page there's a 55 in the top right hand corner? A. Yes. Q. Then if you go over to the next page there's no number on the top right hand corner? A. No. Q. And then finally on the last page there's a 57 in the top right hand corner, do you have that? A. I don't have 57. Q. That's alright, you don't have p 57 that's okay, you don't need that for the moment. Those pages from 51, the page that I just referred you to, do you recognise those pages as a copy of a statement that you provided to Rebecca Harrison on 21 March 2019? A. Yes. 1. I would interpolate here lest there be some confusion, that Rebecca Harrison is a police officer. Q. And if you go to the last page is that your signature at the bottom of the page? A. Yes. Q. After you'd made that statement on 21 March 2019 did you have a chance to read the statement? A. Yes. Q. Did you read it at the time that you made it or shortly after you made the statement? A. No, not after. Q. Was it read to you before you signed it? A. I think so. Q. Do you see down the left-hand side of the handwritten pages. There's the initial AH along the side on each page except for the last page? A. Yes. Q. Do you see down the left-hand side of the handwritten pages there's the initial AH along the side of each page except for the last page? A. Yes. Q. Can you see that? A. Yes. Q. Did you write your initials there? A. Hm, I could have. Q. You don't remember? A. I don't. Q. Did you read the statement or have you read the statement before? A. Not since I was handed a copy a couple of weeks ago. Q. Before you signed the document on the last page, if the detective that was with you, the lady, did she get you to read it? Or did she read it to you before that happened? HIS HONOUR: Or something else? WITNESS: I think I read it to her. CROWN PROSECUTOR Q. You think you read it to her? Did you say? A. Yes. Q. And when you read it to her, did you find it to be an accurate account of your version of events? If you know what I mean by that? A. I don't know what you mean by that. Q. When you were reading it to her the things that you read out to her were they accurate? A. Yes. Q. And the things that you've read out to her and that you've put in the statement, are they an accurate account of what the accused did to you? A. Yes. Q. And did you tell the truth when you wrote the statement or gave the statement to police on 21 March 2019? A. Yes. Q. I'm just going to get you to look at paragraph 8 for me? A. Hm-mm. Q. This is on a page where on the top right-hand corner it's marked with 53? A. 53. Mm-hm. Q. Are you able to read it to yourself, the text in para 8? A. Yes. Q. Can you just take the time and take as much time as you need to read that paragraph? A. AH DID NOT SPEAK IN RESPONSE TO THIS QUESTION. Q. Have you read that paragraph? A. Yes. Q. You finished reading it, all of para 8? A. Yes. Q. Alright. Just pop that to one side for a minute. Having read the paragraph of that statement, I am just going to ask you this question again, was there any other conduct that the accused engaged in with you or happened with the accused? A. No. Q. Having read para 8 and what you've mentioned of para 8 does that assist your memory? A. Sort of. Q. And in para 8, you talk about an incident where the accused took some photographs of you? A. Yes. Q. Just doing the best you can, do you remember that incident where the accused took some photographs of you? A. Hardly. Q. Just do the best you can. When you say hardly do you have some memory of it? A. Yes." 1. Then a little later the Crown referred to s 32(3) Evidence Act 1995 with the proposal that the relevant content of the statement be read to the witness. I referred to the ruling I had given shortly before the commencement of this part of the evidence allowing the witness to refresh her memory. The Crown then continued: "Q. A, can you see and hear me? A. Yes. Q. Just back on to. Do you still have the document there with you? A. Yes, it's on the side. Q. Can you pick that up and flick back to para 8 of the handwritten statement? A. Got it. Q. On your page at the top right-hand corner does it have the number 53? A. Yes. Q. Could you going slowly read out loud for us paragraph 8? A. "Ray used to take photographs of me. I recall when I was about ten years old and I got home from school. Pauline took R, my sister, to netball training. I not long had gotten changed out of my school uniform. I was on my bed doing my homework. Ray came in with his camera or phone. I can't exact - I can't recall exactly which one. He said, 'Can you lay down for a minute?' I didn't say anything. I just laid on my back on my bed. He took my shirt and underwear off. He left my top on. He started taking photos of my vagina. The camera was about 50 to 60 centimetres away from my vagina. It was just taken over my vagina, not my face. I never saw the photos that he took. When he first take – started - when he finished taking the photos he left the room. I recall him taking photos on at least two or three occasions. These were all when I was around 10." Q. Thank you, A. Now, what you put in paragraph 8 of your statement is that the truth? A. Yes. Q. And as you sit here today is it accurate? A. Yes." Count 10 Sexual intercourse by digital penetration Transcript – 24/11/21 – page 392 line 4 to page 392 line 49 1. Count 10 was the subject of evidence at transcript on 24 November 2021, page 392 line 4 to page 392 line 49. "A. I'd not long got home from school and Pauline had taken my sister to netball training. I got changed and was - I think I was doing my homework on my bed and Ray came in. Q. What did you do when he came in, if anything? A. He just told me to lay down on the bed and then he pulled my pants down with my undies and then he put his fingers inside my vagina. Q. How long did he do that for? A. A couple of minutes. Q. Did he say anything to you? A. Just when he was done, 'Don't tell Pauline'. Q. Did you say anything to him? A. No, I just got up and left. Q. Where did you go? A. I think it was to the skate park. Q. How long did you spend at the skate park? A. It probably would have been like an hour. Q. What did you do after that hour? A. Came home because Pauline would have been home by then, Q. You said that this happened after you got home from school? A. Mm. Q. Is that right? A. Yeah. Q. Were you in primary school or high school at this time? A. Primary. Q. Do you remember what year you were in? A. No. Q. Do you remember how old you were? A. Roughly ten. Q. Who was living at the house at the time this incident happened? A. Myself, Pauline, Ray and my sister R. Q. Your other sister JH was she still living in the house? A. No, she'd moved out. Context evidence Digital penetration and playing with the complainant's vagina Transcript – 24/11/21 – page 393 line 1 to page 393 line 19 1. The next item is context evidence. The conduct alleged is digital penetration and playing with the complainant's vagina. The evidence is at transcript 24 November 2021, page 393 line 1 to page 393 line 19. "Q. Did this happen just the one time or did it happen more than once? A. It happened multiple times. Q. When you say multiple times how often was it happening? A. At least once a week. Q. What would happen at least once a week? A. He would just do the same thing. Q. Can you just explain to his Honour what that is? A. He would get me in my room after school when Pauline had taken R to netball training, he would pull my pants down with my undies and start playing with my vagina. Q. And when you say playing with your vagina what did he do exactly? A. He would be fingering me and playing with the other part. Q. When he did these things would he say things to you? A. No, just until he was finished, when he would say, 'Don't tell Pauline'." Count 11 Digital penetration in the lounge room against the bookshelf Transcript – 24/11/21 - page 393 line 27 to page 395 line 8 1. The Crown then referred to count 11, digital penetration in the lounge room against the bookshelf. The evidence found in the transcript on 24 November 2021, page 393 line 27 to page 395 line 8. "Q. Did anything else happen in any other room with the accused? A. The dining room. Q. Alright? A. The lounge. Q. Let's just focus on the dining room. How old were you when this incident occurred? A. Eleven or 12. Q. Do you remember whether you were in primary school or high school? A. Primary school. Q. Can you tell his Honour what happened? A. He cornered me up beside the bookshelf and he got his arm against my chest. He told me to spread my legs apart so I did. He pulled my pants to the side and started fingering me. Q. When you say he started fingering you just go slowly, take your time. Can you tell his Honour what he did exactly? A. Well, he started playing with my clitoris and then he put his fingers actually inside. Q. How long did that go for? A. A couple of minutes. Q. Did he say anything to you while he was doing that? A. No. Not that I can remember. Q. Did you say anything to him? A. I just told him can you please stop. Q. Did he reply? A. No. Q. When he was doing this to you, were you doing anything? A. No. Q. Sorry, you might have said this, but how long did this go on for? A. A couple of minutes. Q. What happened after a couple of minutes? A. After a couple of minutes, I've had enough and pushed him off. And I went to the park. Q. How long did you go the park for? A. Roughly an hour. Q. This incident that happened against the bookshelf, did you say it occurred in the dining room? A. Yes. Q. At the time it happened who was living in the house? A. Myself, Pauline, R and Ray. Q. Who was home? A. Just myself and Ray. Q. Was there anyone else at home? A. No. Q. Do you know where Pauline was? A. She'd taken R to netball training. Q. She had taken R to netball training? A. Yeah. Q. Do you know if it was a weekday or a weekend? A. Training was through the week. Q. Through the week did you say? A. Yes. Q. So, I take it from that it was a week day? A. Yes. Q. Just pause there for me for a moment. When he was doing these things to you in the dining room against the bookshelf how did you feel? A. Extremely awkward. And uncomfortable. Q. And when he said to you, don't tell Pauline, how did that make you feel? A. Like I couldn't tell anyone." Count 12 Digital penetration in her bedroom Transcript - 24/11/21 – page 401 line 17 to page 401 line 47 1. Count 12 is upon the allegation of digital penetration of AH in her bedroom. The evidence is at transcript on 24 November 2021, page 401 line 17 to page 401 line 47. "Q. Now this incident did it happen when you were in primary school or high school? A. High school. Q. Who was living at the house at the time? A. Pauline, Ray, S, K-L, I-L and myself. Q. Do you remember what year you were in if school? A. Year 8. Q. And do you remember how long it was before you left the house for good this incident had occurred? A. After about six months, between six and 12 months. Q. Can you tell his Honour what happened in this incident, please. A. I just got home from school. Pauline had taken S and the kids to dancing. And I'd just got changed out of my school clothes into my normal clothes. I think I was doing my homework on my bed. And Ray comes in and asks me to lay down. I lay down and he pulls my pants and undies down and he starts fingering me. Q. Just stop there for a moment. Can you tell his Honour exactly what he did with his fingers? A. He put them inside my vagina, as well as playing with my clitoris. Q. How long did he do that for? A. He was playing with me for a couple of minutes. Q. And I know this is hard, but when you said "playing" with you, what do you mean by the phrase "playing" with you? A. Just putting his fingers in and out. Count 13 Penile vagina penetration after the digital penetration the subject of Count 12 Transcript – 24/11/21 – page 401 line 49 to page 406 line 25 1. Count 13 is the offence of penile/vaginal penetration after the digital penetration the subject of count 12. The transcript reference is on 24 November 2021 from page 401 line 49 to page 406 line 25. "Q. What's the next thing that happened? A. And then he asked me to lay closer to the edge of the bed, so I did. Q. Can you just do the best you can to use the words that he used when he spoke to you? A. He said, 'Just come over to the edge of the bed and lay down,' so I did that. And then he said, 'I'm going to try something new.' And that's when he pulled his pants down and put his penis inside my vagina. Q. When he pulled his pants down what could you see? A. His penis. Q. And could you describe what you saw to his Honour? A. It was sort of erect before he put it in. Q. How long did he put his penis into your vagina for? A. About a minute or so until I pushed him off. Q. Did he say anything to you while he put his penis into your vagina? A. Just, "Don't talk Pauline' Q. Did you say anything to him while he was doing this? A. I said, 'I don't feel comfortable. Can we stop'. Q. And after you said that, did he say or do anything? A. No, he just continued until pushed him off. Q. When you pushed him off what was the next thing that happened? A. I grabbed my undies and pants and went to the skate park where my friends were. Q. How long did you spend at the skate park? A. About half an hour to an hour. Q. What did you do after the skate park? A. Came home and got ready for dancing. Q. Who was at home when you got home? A. Ray, Pauline and the three girls. Q. Did you tell Pauline what had happened? A. No. Q. And why not? A. Because Ray told me not to. Q. And when he told you not to, how did that make you feel? A. Like I couldn't tell anyone. Q. When he put his penis into your vagina, what could you physically feel? A. Pain. Q. There should be an envelope, envelope B, in the room with you. Could you just pull out the piece of paper that's in there? A. Yes. Q. Is this a diagram that you drew on 21 March 2019? A. Yes. Q. And is that a diagram that you provided to police on the day? A. Yes. Q. What is that a diagram of? A. My bedroom. Q. Anything else? A Me and Ray." That document became exhibit G without objection. "Q. Can you just look at that diagram for me, A. It's exhibit G now. And I just want to go through this diagram with you. If you have the diagram facing long ways, so landscape position - does that make sense to you? A. Yes. Q. There's a small square on – well, it's around about the middle of the bottom of the diagram, and it's labelled 'Desk'? A. Yes. Q. I take it that was a desk that was in your room? A. Yes. Q. And then on the left side of the diagram there's a box labelled 'Cupboard'? A. Yes. Q. I take it that was a cupboard in your room? A. Yes. Q. Was that like a wardrobe or something else? A. It was a wardrobe sort of thing. Q. Then above that you have a rectangle - you've drawn a rectangle, and at one of it has a label, at one end it has a label, 'Pillows,' and above that rectangle, you've got Kim's single bed? A. Yes. Q. That was the bed that was in your room, I take it? A. Yes. Q. Now you've drawn a stick figure on the bed? A. Yes. Q. And above that stick figure you have 'me'? A. Yes. Q. And then below that there's an 'X', below the stick figure that's X, 'Ray when he had sex with me.' Did you write that? A. Yes. By looks of that. Q. And what were you intending to convey or what were you meaning when you wrote that? A. Well, that's what I was told to do when I was making my statement. He told me to mark where I was and where Ray was. Q. When you say he, who's he? A. Burnham. Q. Is this the Detective? A. Yes. Q. And he's the fellow who was with you when you drew this diagram. Is that right? A. No. Sorry. Q. It's alright. Take your time? A. No. This one I did with Detective Harrison. Q. Detective Harrison? A. Yes. Q. Was that a female Detective? A. Yes. Q. Did you draw this diagram at the same time that you made a statement in the presence of Detective Harrison? A. Yes. Q. You were describing before what you meant and you said they asked you to draw the positions of you and Ray. I got that right? A. Yes. Q. Your positions when that was happening? A. When Ray had intercourse with me. Q. And then there's another X on the left hand side of the stick figure that says Ray at the start? A. Yes. Q. What were you intending to represent by that? A. That's where Ray was when he was fingering me before he asked me to lay on the edge of the bed. Q. When you were laying on the edge of the bed and he was having intercourse with you, what was his position and what I mean by that is, was he lying down, was he standing up, was he in some other position? A. He was sort of kneeling, sort of standing, sort of. Q. What was he kneeling on? A. The floor. Q. Just to finish that diagram, in the top right hand corner, you've put a square and you've labelled it wardrobe? A. Yes. Q. You've also marked around the bottom right hand corner door? A. Yes. Q. Was that the door to your bedroom? A. Yes. Q. Alright. I've finished with that for the moment. You could put that to one side. Now, other than this incident that we just talked about, which occurred in your bedroom when you were in high school, the incident that happened in the dining room against the bookshelf and the incident in your room in primary school where he placed his fingers into your vagina, was there anything else that happened in any other part of the house with the accused? A. The lounge room. Q. Alright can we just go back to exhibit F, which is your envelope A. Can you just tell us what you mean when you say the lounge room using exhibit F? A. The second bottom from the right. Q. Does it have a label? A. It's called lounge room. Q. You just said before that this particular incident you told us about was at a time when S and the other girls were out with Pauline. Is that right? A. Yes. Q. So the specific incident that you told us about, who was living in the house at the time that occurred? A. Ray, Pauline, S, K-L, and I. Q. And you said it happened about, I think, you said about twice? A. Yes. Q. The other time that was before or after the specific incident you described? A. Before. Q. The occasion where he put his penis into your vagina when you were in your bedroom. Did that happen, that sort of thing, him putting his penis into your vagina, did that happen once or more than once? A. Just once." Context Evidence Digital penetration in lounge room – twice Transcript – 24/11/21 – page 405 line 28 to page 406 line 10 1. There was then context evidence of digital penetration occurring in the lounge room twice described at transcript on 24/11/21 page 405 line 28 to page 406 line 10: "Q. Can you tell his Honour what happened in the lounge room? A. I was on the lounge watching TV. Pauline had taken S to dancing as well as the girls and Ray came in and asked me to lay down on the lounge and I did. Q. What happened after you lay down on the lounge? A. He pulled my pants down with my undies and started fingering me like before. Q. When you say he started fingering me, can you explain to his Honour what he did with his fingers? A. He was putting his fingers in and out of my vagina. Q. How long did he do that for? A. A couple of minutes. Q. What happened after those couple of minutes? A. I went to the park like I normally do. Q. While he was putting his fingers into your vagina on the lounge did you say anything to him? A. I just asked him if he could stop. Q. Did he say anything to you? A. He just said no. Q. Him doing this to you on the lounge did that happen once or more than once? A. Twice. Q. And on those occasions were you in high school or primary school? A. Primary school." Context evidence Shown pornography on upstairs computer Transcript – 24/11/21 – page 406 line 7 to page 407 line 24 1. The next item is context evidence when AH alleged she was shown pornography on a computer upstairs. The evidence is a transcript on 24 November 2021 page 406 line 7 to page 407 line 24: "Q. Him doing this to you on the lounge did that happen once or more than once? A. Twice. Q. And on those occasions were you in high school or primary school? A. Primary school. Q. You just said before this particular incident you told us about was at a time where S and the other girls were out with Pauline, is that right? A. Yes. Q. So the specific incident you told us about, who was living in the house at the time it occurred? A. Ray, Pauline, S, K-L, I. Q. And you it happened about I think you said twice? A. Yes. Q. The other time was that before or after that specific incident that you just described? A. Before. Q. The occasion when he put his penis into your vagina when you were in the bedroom did that happen that sort of thing him putting his penis into your vagina did that happen once or more than once? A. Just once. Q. There was a point when a second level was added to the house. Is that right? A. Yes. Q. That was an upstairs area was added? A. Yes. Q. Did anything happen in the upstairs area of the house? A. Ray used to take me up there to watch pornographic videos. Q. When did he start doing that? A. When I was 11. Q. What was on the pornographic videos? A. Females with dildos and males with females. Q. What were the females and males doing? A. They were having sex. Q. Where were you watching this porn pornography? A. In the upstairs lounge room on his computer. Q. When you say his computer, who do you mean by his? A. Ray's. Q. When you were seeing this pornography. Who was with you? If anyone? A. Just Ray. Q. How would it come about that you were watching the pornography? What I mean by that, was it on a video or something else? A. I'm not sure. As far as I knew, it was just the internet. Q. How did it come about pornography came onto the computer? A. There's once where I just accidentally walked in on him watching it and then there was other times where he would just take me up to watch it. Q. Did he say anything to you before you got upstairs on those occasions? A. Just I've got something to show you. Q. Do you recall ever saying anything to him? A. No. All I said was okay. Q. How many times did he show you pornography? A. About 15. Q. You left in about the middle of year 8? A. Yes. Q. How long before you left was the last time that he showed you pornography? A. A month or two before." Context evidence Digital penetration in spare room Transcript – 24/11/21 – page 408 line 1 to page 408 line 37 1. There was further context evidence regarding alleged digital penetration in the spare room appear at the transcript 24 November 2021 page 408 line 1 to page 408 line 37: "Q. Just taking you back to your earliest memories of him starting to do that sort of thing to you, what's the very earliest memory you have of him doing anything to you? A. I was about nine and he was fingering me. Q. Is this at the same time or a different time to the incident you've already described in your bedroom? A. This was a different one, because this was marked in a spare bedroom. Q. Let's go back to the diagram then which is exhibit F. Can you just tell me what room this incident was in, that you're talking about now? A. It's in the one, square S, labelled the spare room. Q. Did this happen before or after the incident that you've described, the very first one that you've described, that happened in your bedroom? A. A different one. Q. It's a different one? A. Yes. Q. Was it before or after the one that happened in your bedroom? A. Before. Q. What happened in the spare room? A. I was - just got home from school and they're - Pauline took R and that, well, like she normally does. And I was on the bed, like last time, and they came in, and he pulled my pants down and started fingering me. The word 'they' was misheard – the reference was to 'Ray'. Q. Again, I know it's hard, but when you say 'he was fingering me' can you explain what he was doing with his fingers? A. Pushing and pulling his fingers in and out of my vagina. Q. Were you in primary school or high school when he did this? A. Primary school. Q. Did the spare room have a bed in it at this point? A. Yes. That used to be my old room home." SC-A Count 14 Shown pornography on iPad immediately before showing his penis MFI #27 JIRT interview on 01/02/18 with annexed diagrams 1. The final two counts on the indictment concern the complainant SC-A. Count 14 is the allegation that the accused showed to her pornography on an iPad immediately before he showed his penis. The description of this event is found in MFI #27 the JIRT interview in which SC-A participated on 1 February 2018 with the annexed diagrams. 2. The description given included the lead up to the incident and then the incident itself. In the lead up to the incident she described that she was getting changed. The accused came into her room and said he would give her a chocolate if she came out. That appears at question and answer 155 to 156. At the doorway he was rubbing on his penis. This is the subject of evidence at transcript page 828 line 30 and page 831 lines 24 to 26; rubbing his penis in front of her is described at transcript page 831 line 22. When he was rubbing his penis, he had shorts on, and she couldn't see his penis: transcript page 853 line 49 and page 854 line 6. He rubbed his pants where his penis was, described at transcript page 861 line 34. When he came into her room, she had nothing on but covered herself with a towel, described at question and answer 117 in the JIRT interview. 3. The incident itself occurred when she dressed and went into the lounge room according to her description. The accused was standing behind the long lounge, Pauline was away. 'Home and Away' was on television. K-L and I-L were asleep; that is at answer 59 to 60 and trial transcript page 756 line 1. Ray typed on his tablet how to have sex; that is at question and answer 62 and 63. She pushed the tablet away. Ray was typing in 'other ones' and reading what he was typing out; that is at question and answer 65 and question and answer 198 to 199. An older boy and girl 'having the same thing' earlier described as sex came on the screen; that is at question and answer 216 to 221. 4. I will later deal with the submissions made by the Crown and on behalf of the accused concerning what at first blush might have been thought to be an anomaly in her evidence regarding the lead up incident and its connection with the incident the subject of count 14. I will include that analysis when dealing with the submissions advanced on behalf of the Crown. Count 15 Exposed and touched his penis in front of the complainant 1. Next is count 15 when it is alleged that the accused exposed and touched his penis in front of the complainant. Both episodes of alleged misconduct were within the same sequence. The accused allegedly pulled the front part of his pants down and showed her his 'private': question and answer 65. After showing her his iPad, he pulled the front down and "stick his thing out," his willy: answer 223. Nothing was covering his 'willy: answer 225. He was touching it: answer 230, with one hand: answer 233, and wobbling it around: answer 234. He was doing that for a couple of seconds and then someone knocked on the door: answer 238 to 239. 2. Exhibit N admitted by consent contains a drawing by SC-A representing the accused's penis: trial transcript page 750 lines 8 to 9; and depicts where the offending took place including the single lounge where the accused showed her his penis: transcript page 752 lines 47 to 51. The 'X' on that exhibit depicts where she was sitting when Ray was showing her his penis: trial transcript page 753 lines 11 to 15. THE ACCUSED'S CASE 1. The accused denied any of the misconduct alleged of him by way of the interview in which he participated with the police, in which he was asked questions about some but not all the allegations, and by way of his pleas of not guilty and the way the trial was conducted on his behalf. 2. The ERISP was conducted on 12 March 2018 at Wyong Police Station. The transcript tendered extended to 90 pages and 868 questions. This explored only the allegations by AH and SC-A. The ERISP followed the police attending the home at Wyee where the offences allegedly occurred. His wife Pauline was there present. He was there arrested. A search warrant was executed. He participated in the ERISP after his rights were explained to him by the custody manager and notwithstanding that he was not accompanied by a lawyer. He had legal advice previously and was told he ought to co-operate if the police turned up: question 72. He provided information regarding his domestic circumstances and that he and his wife had fostered three small children until six months before the interview: question 91. They undertook training through 'Life Without Barriers' and were approved: question 116. 3. AH came to them when she six or turned seven: question 120. Then RH and their sister JH: question 121. The children came to live with them nine or ten years before: question 128. When he and his wife Pauline married the girls were in the wedding party: question 132. The girls were taken from their parents because of drug misuse and abuse: question 136. They had first been sent to their aunt and uncle who had their own three children to provide for: question 137. After that the children were placed with the accused and his wife. 4. JH was 12 when she came to live with them: question 155. There were rules that they were obliged to follow. They could not have the children sit on their lap to hug them and the accused was not permitted to enter their rooms: questions 158 to 162. He would say goodnight from the door: question 163. He described the sleeping arrangements. He spoke of taking them on holidays and to school. He spoke of JH having an outburst when the representative of the supervising agency was visiting leading to her being sent for respite after which she did not return: question 198. She went to live with a woman named Sue Bugg: question 210. His mother lived at Cooranbong: question 252. The accused and his wife would visit her with the girls, and his mother would come and visit him and his wife and the girls. His mother became close such that she donated her furniture to JH when she had a baby: question 242 and following. He spoke of their swimming lessons, attending Little Athletics, physical culture, netball and dance: question 259 and following. He and his wife would alternate in the task of taking the girls to their activities: question 278 and following. 5. He acknowledged that he might have taken them to training: question 283. He spoke of the arrangements when their uncle and aunt were down and his associating with them in those visits. He spoke of taking the girls to their training and to their games on Saturday: question 284. He acknowledged that the role alternated between he and his wife: question 285 and following. He spoke of arrangements where he might be called upon to care for his granddaughter: question 289 and following. He spoke of the children being quite large when they came to care: question 293. Afterward Pauline put them on a diet and restricted their intake of sweet foods, encouraging the consumption of healthy foods: question 294 and following. 6. He complained, at question 298 and following, that the children could swear at him, and they could hit, but as foster carers the accused and his wife were not allowed to touch them. They did their best to treat the children as their own; whenever discipline was attempted the children would "buck up": question 303. This involved swearing and, in his words, carrying on. He spoke of JH kicking doors: question 307 and following, asserting that she was a bit of a handful. She was a big girl: question 311. The children walked to school: question 313 and following; and they would be picked up from school and would be walked home. 7. The arrangements for the other children coming into care was discussed. At question 323 and following, he referred to RH's father having taken her from the bus stop around the corner to his home, after which the police and DOCS were notified. They were to stay with the accused and his wife until they were 18. RH left when she was 13 or 14: question 333. They were left with AH: question 334. At question 335 he referred to their holiday cruise when the complainants RH and AH were with the accused and his wife on their own. They were about to go on another cruise when the girls' parents took RH: question 336 and following. He referred to other children: question 340. 8. At question 348 there is reference to SC-A and K-LCS and I-LCS. As I understood, these three including the complainant SC-A were it appears half siblings. These three children were given into foster care with the accused and his wife. He spoke of the relationship that evolved with the youngest of those children and AH: question 360. At question 366 he spoke of the taking of AH from their care by her parents and the resulting inquiries whereby they tracked her down and found out she had gone to live with her parents at Kurri Kurri. At question 369 he spoke of Mark Fitzsimmonds (sic), which must be a reference to Mark Fitzsummons, who, he said, went up there constantly to try and talk them into coming back. He qualified that at question 370 with talking to A and he did the same with RH: question 372. He described how Fitzsummons ultimately convinced AH to return, and the attempts undertaken to have their relationship succeed: question 375. 9. He referred to an occasion when AH went to the school with a forged note asserting that he had given her permission to leave the school: question 378. AH forged the note to get out of school because she wanted to go and live with her parents: questions 380 and 381. He represented that AH wanted to stay with the accused and his wife, notwithstanding which the parents attended and took her from the school. He spoke of her ideal situation, if she was to stay living with them, and she was attributed with the proposition she wanted her parents to live with them as well, which obviously could not happen: question 384. 10. She was 14 or 15 when she left their care: question 396; and did not ever return after the second time she left: question 398. She continued to make contact by telephone with Pauline: question 399 and following. 11. He discussed arrangements for packing up her property to deliver it to her. He described the arrangements in the house when RH and AH were living there and where the other girl slept. He dealt with the extensions about which the complainants spoke which he thought occurred in 2011 to 2012: question 424. 12. He spoke of the improvements to, or the extension of the shed in the rear yard of the property. This involved pulling down the old one and erecting another with an extension on the front of it. That occurred a little after the extension to the house providing the upstairs room. 13. The interview continued with his representations concerning arrangements when the children were within their care and beyond. He was faced with the allegations by AH: question 459 and following. He was informed that she had alleged sexual assaults including digital penetration which he denied in emphatic terms. 14. He referred to the rare times that Pauline was not at home and that most of the time they would be somewhere in the house always together: question 477. He was asked questions then about arrangements where one or the other would remain at home while the other attended to the children's other activities. 15. He raised the proposition of question 495 of her attempting to get money from him and at question 498. He gave answers regarding Pauline travelling to Canberra and the family who lived there and the birth of the baby who at the time of the interview had just turned two. 16. He said that SC-A would have been with her father: question 534 because she used to go to her father every fortnight: question 536. At question 538 he denied that there was any chance that she was at their home when Pauline was in Canberra because she always made sure that she was up at her father's. 17. A fair summary of the representations offered by the accused in the interview is an unequivocal denial of wrongdoing and assertions as to the limited opportunities for such misconduct to occur in circumstances where he would have been at the house alone with the complainants about whom he was interviewed. 18. The assertions he made in the interview included representations which reflect that he is a person of good character. He has advanced that he is a person of good character and adduced evidence to that effect. He called evidence from Allan Klyde Morris at the trial transcript at p 1264 and following. 19. Mr Morris is a Pastor Emeritus according to his evidence, engaged with a Christian organisation performing duties full-time three days a week. He and his wife lived opposite the accused from when the accused was married to his first wife, after which, when the accused married his present wife. Their relationship evolved when he and Pauline were living together; he and the accused became friends. They became closer after the accused and his wife began taking into care foster children. He used as a benchmark July 2008 when RH and AH were fostered to the accused and his wife. 20. At page 1265 of the transcript: "Q. So as the years went on or from perhaps that point onward as the years went on, to what extent did you socialise if you did at all? A. Ray and I and Pauline and that for my - and my wife for that matter as well have - would obviously have met in the street and talked, obviously across their front yard and they were - went in my front yard. We developed a pattern where maybe once or twice a week, three times a week we'd do that and then probably two or three times a month we'd be in their home for some reason, maybe having a quick cup of tea or something like that, just. Q. All right. A. It was good. Q. And what about birthdays and the children's birthdays? A. Yes, yes. Q. Things of that nature? A. Certainly, attendances at birthday parties for the different children over the years. Q. Did you continue until each of the children ultimately left that placement for one reason or another? A. Yes, it did. Ray and I obviously discovered the things that we loved in common, music, cars, machinery. We found a common ground and it was good." 1. He also gave evidence of the configuration of the accused's shed, where it was alleged that some of the misconduct occurred, at page 1266 of the transcript: "Q. Did you make any observations of a shed at the rear of the property? A. Yes, a huge shed at the back of the property added to on over the years. I was certainly familiar with the, more of the front part of the shed which was more open. You could see into the back of the shed, with due respect to Ray lots and lots of mess, just lots and lots of mess. Q. Was that a constant or did it change over the years? A. I think it-- Q. As far as the mess in the shed you'd talk about? A. I think it was fairly constant, yeah, it would have been very constant. I was mindful just when he just had to move recently that emptying the shed was quite a disaster for him trying to get rid of it all. Q. Were you aware of any cars in the shed? A. Yes, I was, not particularly ones of his. I know that at one stage there was a Morris 1100 or a Morris 1000 that he'd been working on. He had a Holden EH of his own that he'd been working on and invariably other people would have cars. There was also engines and manifold, different types of mechanical gear there/ Q. You just said that, in my words, that you assisted him to clean out or something, is that what you said? I don't want to put words in your mouth. A. No, no, minimal. He had certainly help towards the end of cleaning the house but I was there on a couple of occasions just to give him a hand to put things into a skip bin and things like that. Q. Do you know when that was that you can recall? A. Just months back to be quite honest when he finally left the house. Q. Because he sold the house, he's moved out? A. He sold the house, yes." 1. He was shown exhibit 3, an image of the shed, and at page 1267: "Q. I'll show you a photograph of three of exhibit 3, don't worry about who's in the photograph but do you see the shed behind that person? A. I do. Q. That's showing that obviously from the angle from which the photograph is taken into the shed? A. Yes. Q. Is that representative of your memory of what the shed looked like from that angle? A. Yes, absolutely. Q. So had you been to the shed at all? A. Over the years? Q. Yes. A. Yes, absolutely. Q. Looking at that angle for example how far into the shed would you have gone yourself? A. Not far beyond the - that entrance beyond what it looks like a bit of metal thing above the individual's head. It was very difficult. It would have been difficult to proceed further into that shed unless you knew where you were going, yeah." 1. He was shown exhibit A of the search warrant video and at p 1268 of the transcript it was played to him. "MR CONDITSIS: If you can stop it there, stop at 10.10. Q. Is that the shed we see in the background? A. That's the part of the shed that I'm most familiar with. That is the front part. Q. Right. A. Which was more, as you can it's a more open shed. Q. Right. A. And the right - and behind Ray is a more enclosed part of the shed that was even more cluttered than what you see in the front there. Q. Right. When you look at what you can see there in the background? A. Yeah. Q. How does what you can see there in the background compare with what you saw, for example, in the prior photograph that you were shown in terms of what's in the shed? A. Right, with my rec, recollection's of different time when I've been in the shed obviously - sorry, not obviously, but at times there would have been another car where that yellow little things was behind that. Q. Yes? A. I remember because I got from Ray some roof iron which was hanging up on the rafters above there but it's a pretty good example of the way that shed would have been full of stuff. Q. Was in that background is it as cluttered the same, how would you estimate? A. I would say probably a little less cluttered. CONDITSIS: Right, okay, just keep playing through. Pause it there 10.29. Can you please jump forward a couple of minutes, right, just go back a bit, a bit further, about there, jump to 11.30, just play it for about a minute or so. Pause it there, 12.16. HIS HONOUR: 12.16 pause. Q. If you're able to say because I don't want you to guess about this the area of the shed that we've just seen had you been back there before? A. No, the only time I'd been into that part of the shed, in the back part of the shed was just immediately prior to when Ray sold the house but before that I'd actually looked in that, to the shed, but I'd never seen the inner part of the shed. Q. Right and when you looked in the shed could you see into the back of the shed? A. No, no, you couldn't see for stuff. Q. Right, all right. So are you able to say anything about the state of that shed ..(not transcribable).. as you've seen it in this area we're talking about compared to any other prior observations or you can't say because you haven't been in? A. No, I couldn't. My recollections. as I said, prior to being in the shed before he left home was looking to the back of it seeing just a mass of different materials." 1. At p 1269 he was asked questions regarding his perception of the accused and his wife and his observations of the behaviour of the children. "Q. Did you make observations of firstly Ray, the accused's interaction with any of the foster children? A. Yes, over the years we had, I mean we were familiar with the time before both lots of children came into the home, they were both very open about the children being fostered and eventually coming into their care. Q. Yes. A. It showed some excitement of that. When both lots of children came into the care they were, they not only went to myself and my wife but I think they went around the rest of the house, rest of the street, informing their immediate neighbours at least of what was happening, how the children were coming into their care." A little later: "Q. What, if anything, can you say of your own observations of Ray's interactions with the children, what did you see and/or hear? A. I believe I saw that they would, he and Pauline doted on the children, were quite proud to have them in their care, quick to show myself and other neighbours that they were there and what they were doing to involve us to some extent as neighbours in their lives, yeah. Q. Have you ever observed Ray, the accused, to be verbally aggressive to anyone? A. Oh no, not - I've dealt with a lot of people over the years and Ray to me always has come across as a more passive personality. I've seen him frustrated but I've never seen him verbally abusive or physically abusive to anybody for that matter. Q. Including children? A. Including children." 1. He continued his assertions that he had never heard the accused to swear. He had never heard the accused's wife swear and had not seen them physically aggressive or verbally aggressive. He spoke of an occasion when the accused sought his counsel about the children, neighbour to neighbour, seeking help. He remembered on a couple of occasions the accused coming across the street literally with tears in his eyes frustrated at seemingly being unable to deal with behavioural problems he was having with the children. He was aware of the complainant children and of others. 2. He was aware of SC-A. She was the most noticeable of the girls, regarding noise and letting her feelings known. He spoke of hearing her swearing, using loud, abusive language, including on occasions in the front yard, and of her being quite physical towards the accused and his wife. He said that he saw her rush at the accused in an aggressive manner almost trying to push him, almost like a bear hug. It appears that he was referring to the accused wrapping his arms around the complainant SC-A to stop her flailing, to use his word, but she continued to keep at him. He spoke of the accused representing himself as being very frustrated, trying to bring some discipline into the home, that SC-A was having a particular effect upon the other children, not responding to what the accused and his wife were trying to bring into the home, and no matter what they did they got no co-operation from her. He had, he said, no idea what to do. These were representations he attributed to the accused. 3. He said that he could recall two or three times specifically of yelling and abuse. He could not always identify which child it came from, but they were told that it was SC-A and thereafter it was presumed that it was SC-A on other occasions. 4. He spoke of the children having been in his back yard as neighbours might do, his wife being a very open person. They had access to his shed where he had guitars and a piano. They were, he said, very inquisitive children. He was aware of the charges and what was alleged by SC-A. He said, "Well when I first heard of the accusation I was completely stunned, surprised. With what I've seen and observed over the years it doesn't add up to me. I - I cannot see anything that would give credence to Ray having done the things that he's been accused of." 1. The Crown cross‑examined upon the opportunity he had to see the interior of the shed and the extent to which you could see into the rear of the shed, and his observations of the children and where that occurred. This is at p 1274 of the trial transcript. First, dealing with the observations made of the children, there were times when the accused and his wife were in his, the witness', front yard with the children sometimes, he said, his wife was present. There were other occasions when he was in the accused's front yard, and at times in their back yard, and in the house as well, but not in the house regularly. Most of the time was spent outdoors. 2. He was questioned upon the proposition that the accused doted on the children at p 1274. When asked what he meant by that, he said: "I think he was - once again, I thought, I think he was proud, from the way he spoke of them. He was glad to have them in his care. He was open about wanting them in his care and his wife's care. Q. Is this related to the H girls, or SC-A, or other children? A. No, no. Only as you're asking me that I'm even thinking, what did I look at those times? It's - if you'd asked me what I looked at in my own backyard this morning, I can tell you what I saw, but I can't remember specifically looking for those things." 1. Dealing with the H sisters, he saw the amount of attention the accused gave them, leaving him to express the view that he doted upon them. To qualify that, he said: "Well, on a couple of occasions, being a pastor, I was responsible in my community for running what we termed kids clubs, after‑school activities, where we put on special activities for the children. Both him and Pauline approached me with wanting to see the children part of those activities. We took them along accordingly on three on four occasions that I remember. They were actively involved in different sports in the community, different social activities, types of things that I would presume a doting father or mother would - would - would give towards their children." 1. He said he maybe saw the accused put his arm around the children, not in a full‑on hug, but he couldn't specifically remember. He attended social events in the Maguire house, including birthday parties. He didn't see the accused hug any of the children, though he may have put an arm around them. He could not remember the accused being overly affectionate. It appeared to him that the accused was having difficulty coping with S' behaviour. It was frustrating him. He did not go so far as to say that this was causing the accused stress, but he did say that he saw tears in his eyes and what he described as absolute frustration. 2. In further examination‑in‑chief with leave, he described how the accused and his wife appeared quite distressed where RH and AH were returning to their birth family, into what the accused and his wife thought was a place of danger, and they exhibited "broken‑ness", to use the word he offered. 3. The accused's wife gave evidence in the Crown case on 8 December 2021 at transcript p 1105 and following. They married in September 2009. They were estranged at the time of evidence after separating on 13 March 2019. She said reconciliation would not occur. The reasons for that were not further explored. I put it aside as not relevant to the determination of the matters I have before me. 4. She described the circumstances of their residence, the structure of the family, including the foster care arrangements through 'Life Without Barriers' and the placement of the complainants and other children with them. She spoke of SC­‑A and her angry outbursts and how she managed them. She did not see the accused strike her or hear him swear at her. She did not ever strike children. 5. She disclosed how she had secretly video recorded an outburst by SC‑A in the rear yard of the premises; that was played to the Court. It was recorded to show the representative from 'Life Without Barriers'. She spoke of the filing of incident reports to the organisation following misbehaviour exhibited by the children, a gave evidence extending into the activities and travel that took place during the time the children were with them. 6. She was asked questions about the accused's interaction with the children, and though it could not be said that the evidence dealt specifically with the accused's character, in examination‑in‑chief, cross‑examination or re‑examination, she described her perception of the conduct of the accused toward the children. He was not in any measure violent, neither was he profane in the way he spoke to them. She acknowledged that she did not report the conduct SC‑A alleged of the accused when she reported to her his alleged behaviour for fear that the children in her care would be removed. 7. The evidence of character has not been challenged by the Crown. It also includes that he has no record of antecedents that would have disqualified him from the role of a foster carer. 8. The Court is entitled to take evidence of an accused's good character into account on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that he is a person of good character is relevant to the likelihood of his having committed the offences alleged. It can be considered by reasoning that such a person is unlikely to have committed the offences charged. The Court can also use the fact of good character to support his credibility when assessing the interview in which he participated. The Court might reason that a person of good character is less likely to lie or give a false account in answer to the questions asked by the police. As I said, I also bring to account that putative foster carers are investigated for their suitability for the role and undertake training to prepare them for it. 9. The accused's wife spoke of this, acknowledging that the training included the requirement to report matters of concern to the agency through which the placement was arranged, which she did not do regarding the allegations by SC‑A asserting that she was shown pornography. 10. Good character is not a defence, but it is one of the many factors I bring to account in determining that I am satisfied of his guilt beyond reasonable doubt. MOTIVE OF A WITNESS TO LIE 1. The complainants alleged that the accused engaged upon sexual misconduct with them. On the other hand the accused asserts that there was no such misconduct as alleged or otherwise. Upon the accused's case, subject to some behavioural issues with regard to SC-A, the home provided to these children in foster care was idyllic. Both propositions cannot stand together. Upon the accused's case the complainants' evidence must be untruthful. It was put quite squarely that they had lied. 2. The accused does not have to prove anything in this trial and that includes a reason that the complainants might not tell the truth. If the evidence does not expose any clear motive as was suggested to the complainants in cross‑examination at least implicitly, the Court must not overlook that they might have motives to lie which no one apart from the complainants know about. In the absence of evidence of motives to lie, the Court cannot say that it follows as a matter of course that the offences must have occurred as the Crown alleges. 3. It remains that the Crown must prove beyond reasonable doubt that the accused committed the offences upon the evidence it has adduced. It is not for the accused to show that there was some motive or reason for the complainants to be untruthful. The absence of a motive for lying is not proof that there was no motive for lying. Absence of such evidence is irrelevant and adds nothing to the complainants' reliability or to the other evidence in the Crown case. The accused cannot be expected to see into the complainants' minds and be held accountable for failing to discover what reason there might be for anyone of them to tell false stories if that is what they have done. CHRONOLOGY OF SIGNIFICANT DATES 1. The Crown assembled a chronology of significant dates drawn upon the evidence, provided with the consent of the accused to assist in the consideration of the myriad of factual material before the Court. It is not said that the chronology does not represent the evidence that has been presented. KEY DATES * 5 July 2008 RH, AH and JH were placed into the care of the accused and his wife. * June 2012 JH left and self-placed with her parents. * 4 June 2013 Mark Fitzsummons, a 'Life without Barriers' caseworker, performed a home visit for RH at the house of the accused and his wife. * 6 June 2013, RH did not return from school; she self-placed with her parents. * 7 June 2013 Mark Fitzsummons unsuccessfully attempted to meet RH at school. * 13 June 2013 Mark Fitzsummons spoke to RH at the school. * 5 June 2014 SC-A and her two sisters were placed into the care of the accused and his wife. * November 2014, AH ran away from the placement temporarily. * 22 July 2015 AH did not return from school, she self-placed with her parents. DISCLOSURES * Early 2017 RH made a disclosure to her mother. * 21 January 2017 Senior Constable Daniel Bidner attended RH's home. A disclosure was made by RH. Bidner recorded details in a COPS entry, which was part of exhibit B, the agreed facts. * 24 March 2017 GH took RH to Cassilis Police Station to meet with Detective Senior Constable Simone Bottrell. GH contacted Detective Senior Constable Bottrell to organise the appointment. RH made disclosures to Detective Senior Constable Bottrell but did not want to make a formal statement. * 30 March 2017 Rodney Haggarty a 'Life without Barriers' investigator received information that allegations of abuse had been made by RH against the accused. * 30 March 2017 Mark Fitzsummons interviewed SC-A and her sister K-LS; no disclosure was made. * 28 April 2017 Mark Haggarty (sic) attended the home of RH in company with Carolyn Lawrence from Family and Community Services. An interview was conducted with RH and she made disclosures. (The reference to Mark Haggarty must have been intended to be a reference to Rodney Haggarty.) * 23 June 2017 Ren Rogers, a Family and Community Services caseworker, conducted a home visit for AH; GH was present. GH said that AH had been "inappropriately touched" by the accused; AH confirmed this. * 1 August 2017 Rodney Haggarty interviewed ASJ and Felicity Cisco. * 4 August 2017 around 10.50am Rodney Haggarty interviewed GH at home; the interview was audio recorded. * 4 August 2017, around 11am, Rodney Haggarty interviewed AH at home in the presence of GH; the interview was audio recorded and transcribed and became exhibit 6. * 4 August 2017, around 7.40pm, Senior Constable Jason Bear attended the home of AH and spoke to her; disclosures were made. * 16 August 2017 Ren Rogers took AH to Muswellbrook Police Station where AH provided her first statement to Detective Senior Constable Simon Tolhurst. * The next home visit Ren Rogers asked RH about disclosures against the accused. RH found it difficult to talk but gave Rogers a USB containing notes of what happened. Rogers copied notes on to a document and saved it to a Family and Community Services server and emailed the document to Detective Senior Constable Tolhurst. She returned the USB to RH. * 18 August 2017 SC-A and her two sisters were removed from the care of the accused and his wife. * 9 November 2017 SC-A's first interview was conducted by Detective Senior Constable Simon Tolhurst; there was no allegation of sexual misconduct made. * 4 December 2017 disclosure by SC-A to Kim McCarten. * 5 December 2017 Mark Fitzsummons received a phone call and an email from Kim McCarten about disclosures made by SC-A. * 1 February 2018 SC-A's second interview was conducted by Detective Senior Constable Rebecca Harrison; the sexual incidents were disclosed. * 12 March 2018, a search warrant was executed at the accused's home, he was arrested and he was interviewed. * 12 March 2018, Pauline Maguire provided a statement to Detective Senior Constable Harrison. (Bearing in mind that submissions were made on behalf of the accused, it is to be noted that the statement was provided after the interview was conducted with the accused. The importance of that will be noted when I come to the submissions made on behalf of the accused.) * 13 March 2018, Detective Senior Constable Simon Tolhurst met with RH who adopted "PRAVITE.dx" in statement format. * 25 June 2018 RH provided a statement to Detective Senior Constable Rebecca Harrison. * 21 March 2019 AH provided a second statement to Detective Senior Constable Rebecca Harrison. SUBMISSIONS 1. I have not summarised entirely the evidence led in this trial. I have deemed it necessary to refer to significant parts of the evidence including that which fell from the complainants describing the allegations that they make against the accused, a course that I adopted because of the importance of carefully assessing the evidence of each of the complainants and to be reminded of their presentation and demeanour as they faced examination and cross‑examination. The entire transcript including submissions made on behalf of the parties extended to 1375 pages excluding the transcript that recorded the proceedings on the voir dire; that extended over some days before the commencement of the trial proper. 2. It is unproductive, in my view, to rehearse entirely the evidence without reference to the submissions made by the parties, and accordingly the course I have taken is to now deal with the submissions regarding the evidence to which reference was made during those presentations. THE CROWN 1. The Crown made expansive oral submissions referencing the evidence upon which they were advanced, which I accept. I accept the myriad the submissions that have been made by the Crown. The Crown provided the chronology to which I referred earlier, MFI #54. The first part of the document had some key dates including when the three complainants went in and out of the care of the accused and his wife, and the second part of the document has the dates when certain disclosures were made including statements and in the case of SC-A her JIRT interviews. 2. The Crown also provided a table of particulars relating to the counts on the indictment and the context evidence organised with reference to each complainant in turn. 3. The document, MFI #55, includes the Crown summary of the particulars it relies upon for each count and the context evidence, and the summary of the evidence relating to each count and the context evidence with transcript references. I referred to this evidence, quoting it, during my earlier remarks when dealing with the evidence that fell from each of the complainants addressing the allegations they made. 4. In the case of SC-A regarding count 14, the Crown included the lead up to the incident in the lounge room upon which counts 14 and 15 are framed. The Crown also provided a summary table of the complaint evidence in the Crown case organised with reference to each complainant in chronological order according to when the witnesses gave evidence. This was marked for identification. It too is a faithful representation, I find, of the evidence to which it spoke. It provided in summary form the differences and the consistencies between what each witness said. 5. There is nothing said to challenge these documents as a fair representation of the evidence speaking to the matters covered by them. In oral submissions the Crown did not explore in detail the information set out in MFI #56. The Crown addressed upon why the Court would accept evidence of the complainants beyond reasonable doubt and why it would reject the accused's denials of having committed the offences. The Crown dealt with the complainant RH 1. First the Crown submitted that the Court would find her honest and reliable upon consideration of her evidence. The Court was reminded to consider that there might be good reasons for the delay in complaint and was reminded of the evidence of what RH had said about why she did not tell certain people. For example, in the case of Zoe McPhee, with whom she got along, she did not trust her enough to tell her. That appears in trial transcript pp 108 and 109. She did not tell Mark Fitzsummons, first because there were different caseworkers, and secondly she did not know Mark Fitzsummons well enough and only saw him once every couple of months: trial transcript p 109 and 110. She did not tell Pauline Maguire. In examination in-chief her answer was, "Ray asked me not to because it was his and my little secret" which the accused said to her for the first time when he took photos, the first sexual incident with the accused: trial transcript p 59. 2. In cross-examination at p 103 she said that she was not comfortable telling Pauline because, "Ray had asked me to keep it secret and I just didn't want to tell": trial transcript p 103. 3. The Crown submits that the Court might find it understandable that she did not tell the accused's wife in circumstances where she had been told by the accused not to tell anyone or to keep it a secret, that rather than being counterintuitive the delay in complaint, the manner in which the misconduct was disclosed, and her reasons for making her disclosure when she did, were what one might expect from a child who had been sexually assaulted. 4. She told her close friends first, then well after she left the accused's home, some years later, she spoke to her sister and she then told her mother particularly because she did not want her mother finding out from a different source. Once her parents were involved the police became involved. She did not want to speak to them at first, a common theme through all the police officers from whom the Court heard. When she was ready she provided a statement, albeit some years later, in June 2018. 5. The Crown submitted that the Court could follow her thought process through, well established by the evidence, including her evidence about why she told certain people when she did. She gave evidence about telling HF, her friend from school. She said at trial transcript p 61 and 62 that HF told her that she should tell someone, but RH did not want to. She spoke to HF when she did because, "I felt like I had to get it off my chest but I didn't want to go into any details". 6. She went on to say, "I didn't want to go into any details and I think it was because I was a little bit ashamed". She explained why she felt ashamed, as one might expect from a child who has been sexually assaulted: trial transcript pp 61 and 62: "Q. Why did you feel ashamed? A. Because I felt like it was - I could've been saying more of a no ‑ put more of a defence up against it. Q. And when you say 'A defence up against it', what do you mean by 'it'? A. Well, walked away a lot more. Q. When you say you could've said 'no more' to who could you have said 'no more'? A. Ray, to Ray." 1. The Crown submits that is exactly what would be in a young girl's mind. The complainant told PT, whose evidence was that RH said to her, "Don't say anything. Don't tell anyone.": trial transcript at p 515. 2. She told JB who said he encouraged RH to talk about it but it was something that she did not want to discuss. JH's evidence was that RH told her not to tell anyone, but RH said in evidence that after the conversation with JH she rang her mother because she did not want her mother to find out from another source. 3. The Crown submitted that there is a common theme in the complaint evidence in the Crown case relevant to RH, apart from disclosing to people that the accused had either raped or inappropriately touched or sexually assaulted her. RH is not someone who wanted everyone to know about it or even her parents for a number of years. 4. RH gave evidence that the police officer, Daniel Bidner, came to the house shortly after she told her mother. The agreed facts in exhibit B record that Daniel Bidner visited the home on 27 January 2017. He asked her to make a statement but she refused. In her evidence she said she did not want to because she did not want to talk about it. She said, "I didn't want to go through the whole court case things" and at transcript p 68, "I personally didn't want to remember it all. I just wanted to put it behind me and move on.": trial transcript p 68. 5. After Daniel Bidner came to the house RH created exhibit E. Her evidence was that she typed it on her computer about two months after she spoke to her mother and created the document, instead of saying what occurred to a male police officer, because she was not comfortable: trial transcript pp 76 and 77. 6. About six months after creating the document she gave the USB with it to a detective at the Cassilis police station but did not give a statement on that day because she said, "I didn't want to talk about it". 7. The Crown submits that her evidence was consistent on not wanting to talk about it and not wanting to disclose until she was ready, which was when she gave her first statement in June 2018 when, "I felt it was time to tell someone what happened". "Q. Why did you feel it was time to tell someone what happened? A. So that if in the future, if got other kids in care it wouldn't happen to them. Q. And why was that important to you? A. Well so that the other kids don't have to go through it and not feel like it was their fault and that if it happen." Trial transcript p 86. 1. The Crown submission is that the way RH disclosed this conduct and the emotional process to which she spoke reflects well on her credibility and rather than being counterintuitive it is what the Court might expect of a young person in her position to go through finally making a statement in June 2018 some years after the alleged offence. The Crown concedes that there are some differences between the evidence of the complaint witnesses and the evidence that RH gave about what she told them, but that is to be expected. With two people with competing memories from some years ago one would expect some differences. Thus, the Crown argues for those reasons that the Court can accept RHs evidence of complaint. 2. I agree with the Crown submissions on that point. 3. The second reason is the typewritten note, exhibit E, and the high degree of consistency between the content of the note and the complainant's evidence. The Crown concedes that it is not a word-perfect account of the allegations, but it is what is to be expected for it is a short note of what the accused did to her. 4. I agree with that submission. 5. The third reason the Crown offers is the statement of 25 June 2018, exhibit 4. The Crown submission is that, beginning with paragraph 5, it is consistent with the evidence that she gave about count 1 on the indictment, the photographic incident. Paragraph 6 is consistent with her evidence relating to count 4 on the indictment, the incident in the guest room. Paragraph 7 is consistent with her evidence on count 2 which relates to one of the first incidents in the shed. Paragraphs 8 and 9 are consistent with the context evidence about other sexual conduct in the shed. Paragraph 11 is consistent with her evidence about count 5, the incident of penile-vaginal intercourse in the kitchen on the dining room chair. Paragraph 12 is consistent with her evidence on count 6, the accused asking her to put lollies in her vagina and eating them after. Paragraph 14 is consistent with her evidence about the accused's conduct upstairs, the incident of penile/vaginal intercourse with her on the coffee table. Count 8: Paragraph 15 is consistent with her evidence about count 7 which is where she alleges that the accused came into the bathroom while she was in the bath and asked her to put a shampoo bottle into her vagina. 6. The Crown concedes the imprecision in her statement and her evidence regarding ages and dates but submits the Court would consider that as normal with the fragility of human memory as to detail, particularly with a child. Moreover, RH could nominate when certain incidents occurred according to benchmarks, such as who was living in the house at the time, whether JH had left, whether the upstairs had been built, all the sorts of events one would expect a child such as RH to be able to recall upon as tie markers for the occurrence of certain incidents. The Crown submits that upon her evidence, putting the dates to one side, the misconduct was very clear in her mind and understandable given the peculiarity of some of the conduct, including the incident in the car with the sweets, the incident in the bathroom with the shampoo bottle, and the incident on the coffee table upstairs. They are unusual incidents that one would expect the complainant to retain. 7. I agree with that submission. 8. The fourth reason the Crown offers is the way RH gave evidence. The Crown submits that in her evidence in chief and in cross-examination she presented well, consistently across six days of evidence. She took her time to think about her answers. She considered the question; she thought carefully and gave succinct answers. The Crown submits that this indicates someone trying to be both honest and accurate. She acknowledged matters about which she was unsure or could not remember but was clear and cogent upon other matters including misconduct alleged of the accused. 9. By way of example the Crown pointed to an important concession in cross-examination - trial transcript p 156 - and the way she answered questions about what she told Mark Fitzsummons in the days before and the days after she left the Maguire household in June 2013. She conceded that she might have told Mark Fitzsummons that she was happy living with Pauline and Ray only a couple of days before she left. The Crown reminded me of the evidence: "Q. Let's be clear about the time frame, I'm talking about two days before you left. Do you understand that? A. Yes. Q. You may have said to Mark that you were 'happier' living with Ray and Pauline, but you don't think you said 'very happy', is that your evidence? A. Yes Q. Why would you have told Mark that you were 'happy' living with Ray and Pauline two days before you left?" 1. There was some interruption because of my interjection and the evidence continued: "Q. R, do you accept this proposition that it is possible that you said to Mark Fitzsummons that you were 'happy living with Ray and Pauline' on those couple of days or so before you left? A. Yes." 1. That was a question that I posed to the witness. Mr Conditsis then continued cross-examining: "Q. Why would you have said you were happy to Mark two days before you left? A. Because I didn't open up to him. I just - that's what I say. Q. Given that your evidence that you may have said that if you said that would that have been an untruth? A. Yes. Q. So you might lie to Mark? A. Yes." 1. The Crown submits that here RH did not hesitate, that she appropriately conceded that she had lied to Mark Fitzsummons about being happy if that is in fact what she had said. At transcript p 158 she was questioned about a conversation that she had with Mark Fitzsummons about eight days after she left the house. This was cross-examination: "Q. Just pardon me, R, I'm just looking at a note, you know the conversation I'm talking about, this was about eight days after you left Ray and Pauline, do you understand that? A. Yes. Q. You think it was at your house at Wadalba, correct? A. Yes. Q. Did Mark say to you words to this effect, in other words something like, 'R, you told me only a couple of days before you left that you were really happy, what's changed'?. Did he say something like that to you? A. Something like that, I'm pretty sure, yeah. Q. Do you remember what he said? A. If I remember correctly, it was just that I wanted to come home to mum and dad. Q. Yes. You said something like, I just wanted to live with my parents? A. Yes, something like that. Q. Is there any reason you didn't say to Mark at that time that when he was questioning you about why you left, why you didn't say to him, I left because Ray was touching me? A. I didn't want to open up about it. Q. A that time, when Mark speaking to you, Mark was trying to get you to go back and live with ray and Pauline, correct? A. Yes. Q. Your parents didn't want you to go back to live with Ray and Pauline, correct? A. Of course they wouldn't. Q. Yes. Is it the case that you had discussions with your parents about what you would say to Mark? A. No. Q. Did your mother tell you to tell Mark that Pauline hurt you? A. No. 1. The Crown submission is that this evidence demonstrates her efforts to be frank about those conversations and that there was no plot between her and her parents about what to say to Mark Fitzsummons, that she was frank about her parents wanting her home and about whatever lie she might have told Mark Fitzsummons demonstrated honesty in her evidence about that part of her life. Ultimately, she said she left the house wanting to return to her parents and because she was being abused. The Crown submits that the Court would accept that to be so. 2. I agree with that submission. 3. The fifth reason offered on support of RH is her response to cross-examination. The Crown submits that her responses to cross-examination in general will reflect the well upon her credibility. Cross-examination continued for five days, there was no exaggeration, no indication of evasion, no anger, or dramatic response. 4. I agree with those observations. 5. The sixth reason offered by the Crown is opportunity. 6. The Crown submits that the evidence can lead to no other conclusion but that the accused had the opportunity to commit the offences, in the circumstances RH alleges, including the shed in the rear yard, and in the various rooms in the house and in the car. RH gave evidence that Pauline Maguire took her to netball on some occasions and the accused took her to netball on other occasions; they shared this role: trial transcript page 52. They interpolate here that the accused acknowledged the shared role in his interview, a matter that was conceded by Mr Conditsis in his submissions. 7. JH gave similar evidence; she said that each sister did netball training on different days and that there were shared duties between the accused and Pauline, taking the children to different activities: trial transcript page 680. JH gave evidence about the accused pulling R into the shed on several occasions, about a year and a half to two years before she, JH, left the house: trial transcript page 640. 8. JH gave evidence that the accused asked RH to stay back at the house when other kids were going with Pauline. This occurred on about 50 occasions to her mind, about a year and a half to two years before she left the house. JH gave evidence that the accused had RH go in the car with him alone, on about 20 to 30 occasions. The fact that these observations, about a year and a half to two years before JH left the house, would place them around the time that RH alleges that the accused began assaulting to her, mid to late 2010. 9. The Crown submission is that JH presented as one doing her best to give honest and accurate evidence, and that she put a high number of occasions where she saw the accused or heard the accused asking RH to stay back at the house or to go in the car doesn't necessarily mean she was exaggerating. The Crown submits that she was not, and that the Court would accept her. 10. I agree with that observation. Bearing in mind what appears to have been a busy lifestyle endured by this family unit, a common theme in both cases, they do not seem to me to be excessive numbers of occasions as represented by JH in her evidence. 11. VHS tapes were found in the shed by the police, a circumstance upon which the Crown would ask the Court to find, as a reasonable inference, that there was a VCR player at the house upon which to play those tapes, consistent with the evidence from RH. 12. I agree with that proposition. 13. The seventh reason offered by the Crown is coincidence evidence. 14. This relates only to count 6, the incident in the car with the sweets, and to count 7, the incident in the bathroom with the shampoo bottle. The Crown points to the evidence with the three USBs that were found at the house, and as part of exhibit B, the table that sets out descriptions of pornographic material that had been deleted from those devices. The material includes females inserting or having inserted into their vaginas different food items and include females while they were having inserted or inserting into their own vaginas different household bottles, including moisturiser bottles. 15. The Crown submits that there are a number of similarities between the conduct complained of by RH that relates to count 6, and the conduct she alleges in relation to count 7. Having regard to the similarities across the pornography, and RH's complaints about what the accused did in those incidents, the possibility of finding the pornography and the complaints about count 6 and 7 happening by chance is so remote that the Court would conclude that the conduct alleged occurred. 16. I agree with the submissions made in respect of that and I find accordingly. 17. The Crown anticipated that it might be said that RH interacted with the accused and in some instances according to her evidence, and she continued to do so, including entering the car with him, even though having a concern that he might assault her. The Crown submitted that the Court would consider that she was a young child when the conduct started and in a complicated situation. The accused was entrusted to care for her and the Court would well know that responses from a child to sexual assault is a complex process and indeed it is not unusual for a child not to entirely avoid someone who is sexually assaulting them. It is not unusual for there to be continued interaction even if it means they are alone together. 18. I agree with that submission. 19. Ultimately she did something; she left the house; she ran away, for good in June 2013; and at least part of her reasons was to escape the accused; despite Mark Fitzsummons' best attempts to have RH return to the house, she refused. 20. The Crown submission is that RH did what she could to remove herself from the situation when she felt able. The Crown submitted that the evidence to the effect that RH told Mark Fitzsummons that she was happy living in the Maguire household, and that days after she left the house, that she complained not about accused but of an incident involving Pauline Maguire, is consistent with her evidence that she gave on multiple occasions that the accused's misconduct was something that she did not wish to speak about. She could not remember the incident where Pauline grabbed her on the hand. But if it be that she did tell others of such an event, rather than damage her credibility, it enhances it, confirming that the accused's misconduct wasn't something about which she wanted to speak. The proposition that if the accused's misconduct occurred RH would have told someone because of concern for her sister AH, still living in the house at the time, was explained by RH and the Crown submits it was understandable. This appears in trial transcript page 131 in cross examination: Q. R, you did care about your little sister, didn't you? A. Yes. Q. If Ray had done the things that you said he did to you, you would have spoken up, wouldn't you, to protect her? A. No. Q. You would've asked A whether anything happened to her without telling A anything about what happened to you, couldn't you? A. I could have asked her, yes. Q. Why didn't you? A. I guess didn't want to know. Q. A remained living in the house around Pauline for about 2 years after he had already left, correct? A. Yes. Q. In those weeks after A left temporarily, in November 2014, before going back to Ray and Pauline, she was living with you and your parents, correct? A. Yes. Q. And J? A. Yes. Q. We're talking about November 2014, correct? A. Yes. Q. Now that A was back home with you and your family, did it occur to you to ask her then whether anything had happened to her about whether Ray had touched her? A. No. Q. How did it become about that A went to live with Ray and Pauline after she left temporarily the first time? A. Mark came and took her, ..." 1. I anticipate this must be a reference to Mark Fitzsummons who I find was concerned, perhaps for valid reasons in his mind, to have this child returned to the Maguire's household. Cross-examination continued. "Q. Were you there when it happened? A. Yes. Q. Did you hear what was said? A. Probably but I don't remember. Q. When Mark came that day, did he call and speak to her one on one? If you know, did you see what happened? A. I don't remember. Q. There's Mark on stay. Is he going to take A back to the house of Ray and Pauline? Correct? A. Yes. Q. Is he going to take A back to Ray where A lives? The man who sexually abused you. Correct? A. Yes. Q. You know that was going to happen. Correct?" The question was repeated. "Q. You knew for well that A was being taken back to the home to live with Ray and Pauline. Correct? A. Yes. Q. Why didn't you say to Mark or your parents that day when he was going to take her back, hang on a minute, don't do that. This is what he did to me. Why didn't you do that? A. I didn't want to open up about it and if A didn't want to go back, she could have said something if it was going on. Q. But on that day, weren't you interested in protecting your little sister? A. No. Q. Is that because there was nothing to protect her from? A. No. Q. During this time - during the same temporary stay with A at your family home, did A tell you she wanted to go back and live with Ray and Pauline? A. No." 1. The Crown notes that at p 132, she was asked, "Why didn't she ask her sister if anything happened to her and she said, "I didn't want to know." She was asked about why she didn't tell Mark Fitzsummons in 2014 when AH left house for the first time, when AH was going back into the care of Maguire to which RH said, "I didn't want to open up about it, and if, and if A didn't want to go back, she could have said something that was going on." The Crown focused upon those responses. 2. The Crown asked for the Court to accept these explanations, bearing in mind that they are the memories of the complainant, of her perception of the facts when she was a child. The Crown criticised any attempt to place such a burden on the shoulders of the child in those circumstances, amounting to extremely unrealistic expectations of her. 3. It is unrealistic the Crown submits to have placed upon her shoulders the burden of protecting her sister from the sexual abuse by the foster carer, to expect her to be in the position to do anything much about it. 4. I agree with that submission. 5. The Crown anticipated a submission that RH might have a motive to lie, perhaps found on the cross-examination, suggesting that her parents were pressuring her, carrying implications that they had some involvement in the fabrication of these allegations. The Crown submitted that the Court would reject this. 6. I do so. 7. The first reason given was her evidence that her parents did not pressure her at any point, and secondly, it made no sense because she told her mother in early 2017, about two and a half years after she left the accused's house in Wyee and so, had already returned to her parents' care with her 'Life Without Barriers' file closed. She was not being forced to return to either the Maguires or another foster home. Upon these premises, this could not be motivating a lie to her mother about the misconduct on the part of the accused. 8. The allegations in the form of her statement were presented in June 2018, about a year and a half after she first disclosed the conduct to her mother. The Crown submission is that demonstrates there was no pressure in that year and a half from her parents to formalise in any way the disclosure that she made. 9. I agree with that submission. 10. The Crown reminded the Court of Detective Senior Constable Simone Bottrell's evidence that she spoke with RH and her father at the Cassilis police station on 24 March 2017. She asked RH's father to leave the room and he did so without issue, and even at that point, RH maintained that she was not going to provide the statement to the police. The objective evidence about the involvement of RH's father in the process of reporting the matter to the police is that it was supportive and he was assisting his daughter to get to the police station, demonstrating that he was not putting any pressure on RH to make any statement. 11. The Crown's ultimate submission was that the Court would have no difficulty of accepting RH as an honest and reliable witness beyond reasonable doubt. 12. During the trial, there was an occasion when GH was in the process of giving evidence, when there was an attempt to exploit the fact that he had a record of criminal antecedents and had demonstrated the propensity for violent behaviour. The argument advanced was that that evidence was relevant to a submission that if the complaint made by RH, of which he had become aware, was true to his belief, considering his demonstrated history he would have taken matters into his own hand. 13. I did not accept that as a plausible proposition. The Crown dealt with the complainant AH 1. The Crown's submissions regarding the allegations by AH, began with the reasons why the Court would accept her as a witness of truth and reliability. 2. The first reason was the way that she gave her evidence. The Crown reminded me of her demeanour in the witness box consistent with the demeanour that others described of her, specifically the complaint witnesses. 3. She was somewhat shy. She did not want to go into great detail about the misconduct. She did not exaggerate any of her evidence. She gave succinct answers. She was very frank about the difficulty with dates and years, made clear when she was cross-examined on the note that she made about the conduct. 4. The first line of the note reads, "It all started when I was nine to ten years old." The words "nine to ten" had been scratched out and "twelve" written on top. She said that this was because there was uncertainty on her mind about the dates when things happened and when it all started. Ultimately, her evidence was that it started when she was about nine or ten years old, consistent with what she first wrote down in the document. She might have had difficulty with the dates and ages and years, but she was able to articulate who was living in the house in different times. 5. The Crown submitted that this is something one might expect her to call upon when unable to precisely remember her age, adopting benchmarks and against which to place the events that she remembered. 6. The Crown submitted that the complainant was also very clear about the conduct upon which the accused engaged, reflected in the diagrams that she drew. 7. Exhibit F is a drawing AH made on 16 August 2017 when she gave her first statement, depicting the incident at the dining room against the bookshelf, count 11, an instance of digital penetration. 8. Exhibit G is a diagram drawn on 21 March 2019 when she gave her second statement relating to counts 12 and 13. 9. In each of these diagrams, she could draw where the conduct occurred, particularly the diagram of her bedroom. She could articulate what she attempted to represent in it, not only at the time of the drawing it but when she was giving evidence. The fact that she could do that so many years after the events, supports her reliability. 10. In exhibit G, the placement of the word 'Ray' was to represent where the accused was when he digitally penetrated her. She indicated the respective positions of the points where he had a penile vaginal sexual intercourse with her. 11. The Crown submitted that the Court could find that exhibit G drew upon an actual memory of those things rather than something she has made up. 12. I agree with that submission. 13. The second reason that supports her credibility and reliability, was the complainant's evidence. The Crown reminded the Court of the complainant's evidence and referred to the evidence of EH, now deceased, the children's mother, contained in her statement, exhibit K. 14. After RH disclosed to her in early 2017, the misconduct she alleged, EH asked AH if anything happened to her, to which she replied no. Some weeks later, AH disclosed to her that something did happen while she was in care and that the accused had abused her. Her mother then, contacted the police. 15. AH remembered that two police officers came to her house. One of them was Senior Constable Bear: trial transcript p 412 and following. 16. She told them what the accused had done. "All I said was he had sexual intercourse with me and that was about it, I'm pretty sure.": trial transcript p 413 line 10. Senior Constable Jason Bear gave evidence including at trial transcript p 698 line 43 and following: "Q Can you please tell his Honour what A told you when she spoke to you? A. She stated that she was in care of a male by the name of, I believe his surname was Maguire, and while she was in the care, the foster care he had sexually assaulted her when-- Q. Can I just stop you there? A. Sorry, yep. Q. Can I just stop you there, did she use the words sexually assaulted? A. Yeah from memory, yeah she did. Q. What else did she tell you, if anything? A. Actually I think she used the words sexual intercourse, I think is what she said from memory. She said that it happened when - it started when she was in year 6 at school and it happened when there was no one else around in the house at the time." 1. The Crown submits that there was consistency between what Senior Constable Bear said AH told him and what AH says she told Senior Constable Bear. Senior Constable Bear's evidence was that she did use the words sexual intercourse and his evidence was that she appeared shy and anxious, a consistent theme across all the complaint evidence for AH. 2. The Crown submitted that the criticism in cross-examination of Senior Constable Bear regarding the fact that he recorded the misconduct to have started in 2013 when A was in Year 6, if that is what was said to the senior constable, is of little moment when assessing AH's evidence for the following reasons: 1. This was a male police officer and she was shy and anxious and not intending to disclose all the conduct that had occurred or to go into any depth about it, 2. This was clearly a brief conversation and not one which leant itself to an in‑depth recitation of all allegations, 3. Thirdly, she conceded that she wasn't good with dates and years and again used as a time mark the different people who were living in the house, to ground when different offences occurred, and 4. Fourthly, it's not clear what she might have meant by the phrase sexual intercourse but there are allegations of digital penetration, quite a number of them that occurred when she was in Year 6. 1. AH also gave evidence of speaking to Detective Tolhurst at Muswellbrook Police Station after speaking with Senior Constable Bear which was when she gave her first statement in the presence of Ren Rogers. She accepted that she didn't tell Detective Tolhurst all that the accused had done in the first statement, "because I felt extremely uncomfortable at the time talking to a male.": trial transcript p 414. She provided the second statement on 21 March 2019 about which she said, "I still felt nervous but I felt a bit better with it being a female.": trial transcript p 414 line 37. 2. The second statement was in the presence of Rebecca Harrison, a female detective. What AH said about how she felt is consistent with the observations that Detectives Tolhurst and Harrison made of her demeanour when they were speaking with her and taking her statement. 3. AH did not give any evidence of telling JH but JH gave evidence of conversation that she had with AH upon which the Crown relies to support AH's account of what occurred. 4. The Crown anticipated criticism of delay in complaint in respect of which it was submitted that the Court would consider that there might be good reasons for it, particularly the reason she gave in evidence, "It was because Ray always told me not to tell anyone". She was asked, "When did he tell you that?" and her answer was, "After every time he did something to me". She was asked, "How did that make you feel?" and she said, "Like I couldn't tell anyone.": trial transcript p 440 line 35 to line 46. 5. When cross-examined specifically about why she did not tell her mother and her father: trial transcript p 453 line 17 and following; she said she was told not to tell anyone and did not want to worry her mother and her father because they were already dealing with the stress of RH's disclosure. When cross-examined about not telling her aunt and uncle: trial transcript p 457 line 34 and following; she said, "Because I wasn't allowed". When cross‑examined about not telling RH, her answer was because she was told not to by the accused and she did not want to worry her sister: trial transcript p 455. When cross-examined as to why she did not tell Mark Fitzsummons she said because Ray told her not to tell anyone and because she did not want Pauline to find out, she did not want to upset Pauline, and did not want to break down the marriage. 6. The Crown submits, and I accept, that this reflects a complicated situation for her, a young child with multifaceted reasons why she did not tell anyone at the time the conduct occurred. 7. The Crown reminded me that AH also gave evidence that she did not want to be removed from the Maguires because she did not want to start all over again in the care of another foster family, an acceptable reason why she did not tell anyone what was happening, the Crown submits. 8. The Crown anticipated an argument upon AH returning to the Maguires after she ran away in November 2014, a fact inconsistent with her being abused as she alleges. The Crown referred to AH's evidence about that. She spent about three to five days at her parents. Mark Fitzsummons made her return to the care of the accused and his wife; the Crown referred to the transcript p 427 line 1 to line 13 and I quote: "Q. Mark Fitzsummons? A. Yes. Q. Did he talk to you about going back to the accused and Pauline? A. Yes. Q. Where did he talk to you about that? A. He talked to me at mum and dad's, I'm pretty sure. Q. Can you remember what he said to you? A. He said if I just don't go to school Monday and go back to Pauline and Ray's then mum and dad would be arrested for kidnapping me and I think I was going to be placed into another foster care if I didn't go back there." 1. Mark Fitzsummons did not recall that conversation but he did acknowledge during his evidence that in circumstances where a child failed to remain at a placement the practice was to involve the police to have them returned. The Crown referred to police involvement when the complainant ran away in July 2015. The Crown asks the Court to accept that there was probably some police involvement in November 2014 and submits that the Court would accept this evidence of AH even if Mr Fitzsummons did not speak as bluntly as AH recalls. It is likely that a consistent sentiment was expressed to AH and provided encouragement for her to return. 2. I agree with that observation. 3. The Crown referred to her evidence that her return was accompanied by thoughts that the accused might stop the abuse given she had run away. This, the Crown submitted, was an entirely understandable thought process in her mind as a child. The Crown added that ultimately she left the accused's care permanently when she ran away the second time. 4. The Crown addressed the accused's opportunity to commit the offences found in the evidence that Pauline Maguire and the accused shared duties conveying the children to activities including that Pauline Maguire would often take SC-A to dancing, and that there was a period when AH was the sole child in their care from June 2013 to June 2014 before SC-A moved in. The Crown submits that there was opportunity for the offences to occur in the circumstances against AH. 5. The Crown addressed the pornography recorded but deleted from the three USBs seized by police. The Crown invites the Court to infer that the accused had access to pornography in the period when AH alleges that she was being shown pornography by the accused. The Crown referred to exhibit B which included a table that sets out a description of the deleted material and a series of dates in the middle column of that document. The Crown referred to the evidence of Senior Constable Lawrence Mayer regarding the dates, in which he explained the tasks given to examine the three USBs, explaining the terms, created, modified, and accessed used in the table. He explained their relationship to the dates recorded against them in respect of the files on the USBs: trial transcript from p 1233 and following. 6. The evidence is to the effect: 1. The term modified referred to the point at which the data contained in the file was changed and then the file saved. 2. This occurred when, for example, a person changes a document in word and then resaves it or a process opens a file and causes the data to change such as in a virus protection process opening a file. 3. The term accessed generally referred to the last time the file was viewed which could include the last time a person viewed a document and the last time an anti-virus program ran. 4. The term created generally referred to the date and time that the device that contains the file saw it, such as when a person saves a file from a personal computer to a USB at which point the created date will be displayed as that date. 5. He also gave evidence regarding the use of N and Y used in the deleted column in his report. Y denoted that a file had been deleted and N that it had not. 1. His evidence included reference to anomalies in the dates specifically in respect of images with an access date of 01/01/1990 preceding the date specified for creation and modification. This occurred if the system was unable to determine a date in which case it would then put its own date automatically. Senior Constable Mayer's evidence was that he could not verify the dates of creation and modification without access to the original device from which the file came. 2. The Crown invites the Court to infer that the accused had access to the material that was deleted from the USBs from the dates that are shown in the table that is part of exhibit B, that the USBs were found in the accused's bedside drawer, which the accused is heard acknowledging in the video recording of the search warrant execution, and from the combination of wedding and family images in addition to the pornographic images on one of the USBs found. The Crown submits that the inference to be drawn upon these basic facts is the accused's access to the pornography providing corroboration for AH's evidence that the accused showed her pornography. 3. I agree with and accept that submission. The Crown dealt with SC-A 1. The Crown submitted that the Crown would accept her evidence for the following reasons. The accused had the opportunity to engage on the misconduct alleged. The evidence that the accused had the opportunity included evidence by Pauline Maguire that the Court would accept though other parts of her evidence might be rejected. Pauline Maguire's evidence was that she went to Canberra about half a dozen times over three years. She conceded that on some of those occasions the three girls were left in the accused's care on their own: trial transcript p 1112, line 1 to 8. She aimed to go to Canberra when SC-A was with her father but conceded that in November 2015 she went to the baby shower for her daughter in Canberra and took I-LS, but as far as she was aware she left SC-A and K‑LS in care of the accused on that occasion: trial transcript p 1113 line 37. I‑LS and K‑LS were other small children fostered to the accused and his wife when SC-A, their sister, was in their care. 2. She said that she went to Canberra in February 2016 for the birth of her granddaughter born on 24 February 2016. She did not accept that she might have gone down before that date but maintained that she went down after the birth. On that occasion I‑LS went with her and SC-A and K-LS might have been left in the care of the accused but she had no memory of it: trial transcript p 1113, line 27. She went to her son's wedding in Perth in November 2016 when SC‑A and the other two children remained in the accused's care: trial transcript p 1111 line 29. 3. The Crown submits that although it was before 24 February 2016, when her granddaughter was born, there is available the inference from the message exhibit T that around that time SC‑A remained at the house at Wyee, and having regard to Pauline Maguire's evidence that she was away for a period around 24 February 2016, upon SC-A's evidence of when this conduct is said to have occurred there was, with reference to the evidence from Pauline Maguire and exhibit T, the opportunity for the accused to commit the offences because Pauline Maguire was away. 4. The second reason offered in support of SC-A is her disclosure to Pauline Maguire. This was evidence of what she told Pauline Maguire about which there is little dispute. There was a disclosure, although there is a dispute about the timing of it and the precise terms of the conversation. Pauline Maguire's evidence is that the conversation with SC-A happened after she returned from Perth in November 2016 whereas SC-A's evidence is that it was after she returned from Canberra where she had gone to see the newborn baby. Regardless, the Crown submits that Pauline Maguire might not have lied about the timing of the event but might simply be mistaken. SC-A was clear that the conversation occurred after Pauline Maguire had returned from Canberra. She said the offences occurred when Pauline Maguire was away in Canberra. She referenced it to the child's birth which is consistent with Pauline Maguire being in Canberra to visit her grandchild. 5. SC-A's assertions regarding this in her second JIRT interview on 1 February 2018 from question 120 to 129, she maintained in cross‑examination: trial transcript p 836 line 50. 6. The Crown submits that regardless of the timing of the conversation, it was the content of the conversation that is critical. In examination in-chief, trial transcript p 756 line 31 to line 50: "Q. So just tell his Honour again, nice and slowly, what you told Pauline? A. I said that Ray done something really bad and I didn't know how to say it and I was like he showed me his penis and I was really scared. Q. And when you told her, thinking back to this conversation, did you use the word penis? A. No I didn't. Q. What word did you use? A. I'm pretty sure that I said dick. Q. Did you tell Pauline anything else about what the accused had done? A. Not that I know of. Q. Did she, Pauline, say anything to you when you told her? A. Yes. Q. What did she say? A. 'I do not believe you, he will never do that'." The Crown referred to cross-examination, trial transcript p 841 line 45: "Q. When you told Pauline - pardon me, when you said to Pauline 'Ray did something really bad he showed me his penis and I was really scared', did Pauline say to you something like 'S that's a serious thing to be saying, you shouldn't say it if it's not true', something like that? A. Yeah I'm pretty sure she said that too." The Crown referred to re-examination, trial transcript p 848 line 3: "Q. Now did Pauline say that before or after she said, she didn't believe you? A. Pretty sure she said that after." 1. The Crown referred to cross-examination, trial transcript p 842 line 40 and noted at line 20 that it was put to S: "Q. Did you go back to Pauline and say something like 'Pauline what I said before wasn't true'? A. No I never said that." 1. Pauline Maguire's evidence at trial transcript p 1114, line 4 and following was: "Q. And where were you when S told you this information? A. I was sitting at our home out on the back deck. Q. What did S tell you? A. That Ray had shown her things on the - on the iPad. Q. Did those things include a man and lady having sex? A. Yes. Q. What did you say to her, if anything, when she said this? A. I said to her that - that I'm like you don't go around saying things if they're not true." 1. The Crown submits that this is generally consistent at least with part of what SC-A says Pauline Maguire said to her. 2. The Crown referred to her response in cross‑examination: trial transcript p 1114 to 1117; and noted that Pauline Maguire did not concede that she said to SC-A, "I don't believe you": trial transcript p 1114 line 140. She said that SC-A went away for about 20 minutes, came back, and said, "I'm sorry I made it up". Pauline Maguire's evidence was that she said, "Well I'm going to have to tell Mark" to which SC-A responded by begging her not to saying, "No don't tell Mark, I don't want to leave". Pauline Maguire said that this was the reason that she did not submit an incident report about the allegation that had been raised by SC-A which was a requirement of her as a foster carer. 3. The Crown's submission is that the Court would accept there was a disclosure by SC-A to Pauline Maguire in terms as she alleges; there is no dispute that there was disclosure; the Court would reject Pauline Maguire's evidence in three important respects: that she did not say to SC-A, "I don't believe you", that SC-A came and said, "I made it up" or anything to that effect, and that SC-A begged her not to tell Mark Fitzsummons. The Crown in support of this contention points to Pauline Maguire's state of mind and her concession that she did not believe SC-A at the time and her assertion that she does not believe it now. 4. The second matter the Crown points to is that despite the seriousness of the allegation SC-A made, in whatever form it might have taken, she did not submit an incident report as was expected of her. Neither did the accused, which assumes particular significance because of the evidence in the trial that a number of incident reports were submitted to 'Life Without Barriers' by the accused and by his wife because of SC-A's behaviour, even to the extent that the wife filmed SC-A's conduct in an outburst in the backyard to protect themselves against the behaviour. When so on guard about aspects of SC-A's behaviour, the Crown submits that it makes no sense why they did not put in an incident report even if she had come back and said, "I made it up" and Pauline Maguire did not believe her. 5. The third matter the Crown points to is that part of the conversation where SC-A is supposed to have begged her not to tell Mark Fitzsummons; that was not included in Pauline Maguire's statement of 12 March 2018 in which she detailed the conversation that she had with SC-A. The Crown submits that the Court would conclude that she gave the evidence about SC-A begging her not to tell Mark Fitzsummons to explain away why she did not submit an incident report. 6. The statement of 12 March 2018 includes references to SC-A saying, "I made it up" but it is submitted that when deciding whether that was truthful, which the Crown does not accept, there are relevant factors for consideration. First, Mrs Maguire made the statement after the accused's arrest when she was aware that it was for sexual offences. She also obviously knew what SC-A told her some years before about what the accused had done, which she said she did not believe. She conceded that she made the statement to assist the accused. Finally, after SC-A told her something about what the accused had done, Mrs Maguire confronted the accused about it in some way and during that conversation she relayed what she said SC-A had told her but did not say to the accused that SC-A came back and said, "I made it up". The Crown submits that the Court would not accept that the complainant said that to Mrs Maguire. 7. I accept that submission. 8. The Crown referred to Mrs Maguire's evidence about her conversation with the accused: trial transcript pp 1120 to 1121. She said she told the accused, "S said you showed her some things on the iPad, that it included a male and female having sex". He replied, "It's absolute garbage" and she attested that ASJ or another might have shown SC-A something on the iPad. She, that is ASJ, denies showing SC-A anything on the iPad; part of her JIRT interview included that there was a parental guidance mechanism on her device preventing her access to such material: JIRT interview of ASJ, questions 85 and 102 to 104. 9. The Crown reminded the Court of Pauline Maguire's evidence that she checked the iPad, that is the accused's iPad, and the history of access to Safari and YouTube. I should note here the reference to ASJ was also with regard to her iPad. 10. The Crown submission is that the Court would reject the evidence from Pauline Maguire, at least regarding the reliability of whatever examination she made of the device in the absence of evidence from her of the details of the process that she followed and that she could not give any details as to what she saw. Her evidence was to the effect that she did not see any pornographic material but she could not articulate anything as to what she saw. The Crown submits that this is significant, for if her recall around this time was good enough to be able to categorically rule out that she ever said to S, "I don't believe you" even as a possibility, it is inconsistent that she could not give any detail of the process she followed to check the web history. 11. The Crown submits that there are aspects of truth in Pauline Maguire's evidence, as with her statement, but it was structured towards assisting the accused such that the Court would be cautious before accepting those parts the Crown submits ought to be rejected. The Crown submitted that the Court would accept SC-A and what she said in her evidence about the conversation that she had with Pauline Maguire. 12. I agree with that submission and I do so. 13. The third reason advanced by the Crown in support of the SC-A rests upon the evidence of the iPad web history, that is the history gleaned from the accused's iPad set out in exhibit S. The Crown submission was first that it demonstrated that pornographic sites were visited on 10 March 2018 and 9 March 2018 as well as dates unknown because there are no dates available in the last visit range as the Court noted during the trial; the last visited date sets the boundary as the last time that those sites were visited but did not speak of access further back in time. 14. The Crown submitted that the Court would accept that the sites were pornographic from their titles, where available, and the words contained in the Uniform Resource Locator. The Crown submitted that the inference to be drawn is that a number of these entries were pornographic websites and that it was the accused using the iPad. It was his and was PIN protected as revealed in the execution of the search warrant, exhibit O. 15. The Crown notes from the extracted data compiled in exhibit S that on most occasions where there were pornographic websites visited, they had been deleted from web history, whereas visits to the innocuous websites such as Roads and Maritime Services were in large measure not deleted from the history. The Crown submitted that this pattern of deletion provided an explanation as to why Pauline Maguire might not have seen anything in what perhaps was a cursory viewing by her, if the accused followed a practice of deleting his search history of pornographic material or took steps to do so when aware of the allegations made in respect of him or made against him. The Crown submits that exhibit S is important corroborative evidence supporting SC-A. 16. I agree with that proposition. 17. The fourth reason the Crown offered in support of SC-A was her presentation. The Crown referred to the diagrams that she drew, part of exhibit N, which she could explain into evidence, some years after the incident and after drawing the diagram, demonstrating that she was calling upon her memory of what actually occurred to her. She made concessions in her evidence, importantly regarding her own behaviour while in care. She made concessions about having done certain things, for example damaging the property, throwing things, but was discerning about what she said she did do and what she said she did not do. For example, she did not accept that she caused all the damage that was suffered in the home. She did not accept pushing the accused onto the bookshelf which was alleged of her. She did accept that she had caused some of the damage which she identified. 18. The Crown submits that this supports a finding that she was doing her best to be frank and accurate in her evidence. She demonstrated the ability to reflect aspects of her evidence. For example, when she spoke about Pauline Maguire in her interview, at the age of ten, she said that Pauline Maguire was, using her words, "the biggest bully ever". But when asked to reflect on this in cross-examination in the trial, she said that, as a 14-year-old giving evidence, she didn't feel that way. She did not resile from her evidence that she had been hit and that she had suffered mistreatment in certain ways but she was able to reflect upon and temper some of the more assertive propositions that she had offered in her first interview. This the Crown submitted demonstrated evolving maturity and supported of finding that her evidence was honest. 19. The Crown submitted that the complainant was not attempting to represent the accused in an entirely poor light. She accepted that he was a good carer at the beginning. At p 849 of the transcript, she said, "He was nice when I first arrived. He was friendly. He was caring and then he just turned mean". She accepted up to a point that she liked him and that he was caring and that he was nice. 20. The Crown anticipated a submission that the evidence of physical and verbal mistreatment was a complete lie or fantasy. The Crown submitted that the Court would accept SC-A about what was occurring. The evidence about what was occurring first is the evidence of ASJ who supported part of what SC-A said. She gave evidence that Pauline Maguire would administer smacks and she, ASJ, did not want to get smacked; that appears at question and answer 118 of the JIRT interview in which she participated. 21. ASJ said that Pauline Maguire pulled K-LS into her room and locked it and then she would swear at SC-A and that Pauline Maguire would yell. These propositions are found at questions 120 and through 121. At question 122 she said, "One time it was really scary" and she went onto to describe an incident where Pauline Maguire came into her room and said to SC-A, "Why did you do that to your sister", ASJ did not want to be involved in what was occurring so she left. 22. She also described an incident in her interview which started in the loungeroom and progressed to another room. She saw SC-A kick the accused and saw the accused kick her back and shove her onto the bed. That is at questions 127, 131 and in her further examination-in-chief at trial transcript pages 869 to 870. 23. The Crown relies upon the clarity and competent manner in which this witness described the event. She also described a lot of fighting and whinging in the household including between the accused and his wife, her evidence regarding that is at page 884 of the trial transcript. She was cross-examined about what she told Mr Haggarty in 2017 but she could not recall what it was she told him. She could not recall the conversation at all but she did maintain in her evidence that Pauline and Ray used quite a lot of swear words: transcript page 878. Although she could not recall saying this to Mr Haggarty, she said that if she did say nothing worried her then it was a lie because there were things at the house that were worrying her. She was re-examined upon this at pages 894 to 895 and she identified the following things that worried her. 24. First, Pauline and Ray always had arguments and would smack the kids and she said she did not want that to happen to her. They smacked K-LS and SC-A and sometimes I-LS but she could not recall I-LS being smacked as much. She said that she was concerned to tell an adult because, "They were very intimidating toward me and my brother sometimes and when they did have fights, it did scare me": transcript page 894. She also said, "Towards everyone else in the house, they were scary like, I thought they were scary at the time and like I thought something would happen to me if I ever said anything": transcript page 894 through to page 850. 25. The Crown submits that this evidence offers some support for what SC-A says occurred in the house. ASJ presented as being as honest as she could; it was said and her evidence is supported by Rodney Haggarty, an investigating officer with 'Life Without Barrier'. He made notes; his recollection did not extend to the events to which the notes spoke. His evidence was in effect that he made reliable notes in the course of his work to which he referred for the purposes of his evidence. 26. The Crown submitted that if those notes are accurate, what ASJ told Mr Haggarty on 1 August 2017 as recorded is in some respect consistent with what she said in her interview. According to Mr Haggarty's notes, she told him that Ray and Pauline used naughty swear words: transcript page 982. He recorded that ASJ had seen Pauline grab the girls by their hair and drag them into their bedrooms. This did not happen to her but she had seen it happen to K-LS and SC-A. He recorded that ASJ had told him that SC-A has anger issues, she throws things and Pauline throws things back at her, and she said that "SC-A has punched the wall". Mr Haggarty recorded, "When she goes to Ray and Pauline's, one of the kids would have a fit and Ray and Pauline don't like it, but I feel safe and that it won't happen to me". This is the trial transcript page 902. In her evidence, she clarified that she meant by the term "fit", a tantrum. 27. The Crown relies upon this evidence in support of the evidence of mistreatment that SC-A alleged. The Crown found further support in the evidence heard from Klyde Morris called on behalf of the accused. He described how CA's behaviour had the accused with tears in his eyes, very frustrated, leaving him with no idea what to do: trial transcript page 1271. He said that the accused's reaction contrasted to his usual calm demeanour. The Crown referred to Pauline Maguire's denial of ever swearing or smacking the children but she accepted that SC-A's behaviour presented a challenging situation for her and the accused. The Crown referred to her evidence about dealing with SC-A with a timeout strategy in which after some minutes the tantrum would dissipate. 28. The Crown submits that in the face of the volatile behaviour attributed to SC-A, a foster child who had come into their care, they might well have resorted to physical and verbal abuse as SC-A alleged. The Crown asks the Court to consider the representations in her JIRT interview, keeping in mind that they were from a ten-year-old, as she then was explaining these things, providing her perspective as a ten-year-old. The Crown submitted that this highlights the clear and concise and unexaggerated evidence of the nature of the sexual conduct relevant to counts 14 and 15. 29. The Crown anticipated that there would be challenges to the Crown case on behalf of the accused in the following respects. First, that SC-A did not disclose any sexual incident in the first JIRT interview on 9 November 2017. That is the fact. The Crown referred to her evidence that although she was living at Kim McCarten's place at the time of that first interview, she did not yet feel safe: trial transcript page 775 lines 12 to 35. I quote: "Q. In the second interview, the things you told the lady police officer, you didn't mention some of those things to Simon the police officer in the first interview. Do your agree with that? A. Yes. Q. Why didn't you tell Simon about those things? A. Because I was afraid. I wasn't - I didn't feel safe at all when I was at Ray's and I didn't know how to say it. So I was comfortable enough when I moved to Kim's. I felt safe enough to say it. Q. Alright. Well just focusing on the first interview, you did with police officer Simon? A. Yeah. Q. That was in November 2017, is that right? A. Yes. Q. Were you living at Kim's by that stage? A. Yes. I just moved there. Q. Alright. Then you didn't tell Simon in that interview about the things that you talked to the latter police officer about in the second interview, why not? A. Because I just wanted to get more safe where I just got put so I'd get more comfortable to finally get it out of me." In cross-examination, trial transcript page 829 line 47 to page 830 line 37. "Q. When you finished the interview with Simon, you had not told him about seeing Ray's penis, correct? A. Correct. Q. You've not told him about seeing males and females having sex on Ryan's tablet, correct? A. Correct. Q. Had you forgotten to tell Simon about those things? A. No. Q. Did you mean not to tell him? A. I think because I didn't feel safe yet when I moved. Q. But you spoke to Simon, that was in November 2017 which is approximately three months after he helped you be taken away from Ray and Pauline. Do you agree with that? A. Yeah I think so, yeah. Q. Am I right in saying when you were taken away from Ray and Pauline, you were to live with Kim McCarten? A. Yes. Q. At the time you spoke to Simon in relation to this interview, you were living with Kim McCarten, is that correct? A. Correct. Q. You felt safe with Kim McCarten, didn't you? A. Yes. Q. Bearing those things in mind when you were speaking with Simon, did you feel safe? A. What do you mean by that? Q. You said a moment ago, you didn't tell Simon those things because you didn't feel safe, is that what you said a little while ago? A. Yes. Q. Why didn't you feel safe? A. Because it was three months that I just got to Kim's, I just wanted a bit longer to see how I was." 1. I found that evidence persuasive. 2. The Crown asks the Court to bring to account that SC-A came from difficult circumstances into the care of the accused and his wife. Upon the evidence, she found this a difficult environment where she did not feel safe and notwithstanding, that she liked Ms McCarten, it would have been natural for her to need a period of adjustment after the move to this home to allow in her a sense of safety to evolve sufficiently to allow her to bring forth the allegations. The Crown reminded the Court that it is not unusual for disclosures to come late and over time and not at the first available opportunity. 3. That is a valid submission in my view. 4. I do not express any view about the extent of any physical or verbal violence alleged of the accused and his wife other than to find that I am satisfied there was some of it as alleged by SC-A, but I am not able to find definitively and precisely to what extent. However, I do accept the allegations made by SC-A that there was a measure of hostility for whatever reason in this house reflected, apart from anything else, in the decision made to video record this young girl in the backyard as she was acting out. 5. The Crown also anticipated that the accused would advance the evidence from Kim McCarten, that SC-A said to her the accused tried to lick her vagina which was not disclosed to police and not consistent with the allegations in counts 14 and 15. The Crown submits that this disclosure is not inconsistent with the accounts of counts 14 and 15. As I understand the submission, it was in terms that was said by the complainant to Kim McCarten was not in place of what was alleged in counts 14 and 15, and that the Court would find that it was conduct in addition to what is alleged for counts 14 and 15. 6. The Crown submitted that this complaint evidence would not lead to rejection of her as an honest and reliable witness. 7. The Crown anticipated that the accused would argue for what might appear to be an anomaly on an ill-considered considered view of evidence, but submitted that when that evidence is properly understood, any such concerns evaporate. 8. The Crown took some little time dealing with this. The proposition the Crown anticipated was the suggestion that SC-A had never raised previously an event at her bedroom door when the accused, she said, rubbed his penis over the top of his shorts. The Crown submitted that properly understood the evidence by way of her interview reveals this was not a late disclosure; it was not the first time she raised that something of that nature occurred in the bedroom door, and she had merely expressed herself inadequately when being interviewed. The Crown took me to the transcript of that interview MFI #27 at questions 49 to 56 where the Crown submitted SC-A explained what occurred while she was in her bedroom, before the lead-up events to the conduct relevant to count 4 and 15. I will read questions 49 to 56 to provide the entire context: "Q 49. So-- A. So I came home from school. Q 50. Came home from school? A. Yeah. Q 51. Yeah? A. Ray K aha said "Go and get dressed into your pyjamas". I had a shower, pretty sure. Q 52. Yeah? A. And I get dressed and I shut the door, then Ray opened the door. Q 53. Yeah? A. And I said "I covered myself with like with my towel". Q 54. Yeah? A. Because I was still nudie. Q 55. Yeah? A. And then Ray said "After you get changed, you can come out and I'll show you something and I knew what it was". Q 56. Yeah? A. Then he said "I'll give you a chocolate if you come out and see me and I kept saying no, no, no then I came out, I never saw puh, I didn't know Pauline was gone but I was dressed then". 1. The Crown focussed on the representations at question and answer 55 and then referred to the cross-examination upon that answer at trial transcript 831: "Q. When you said I probably knew what he was going to show me, was that correct? A. Yes. Q. Well how did you know? A. Because he was rubbing his penis in front of me. Q. So just to be clear, was he rubbing his penis in front of you while he was about your doorway? A. Yes". The Crown referred to re-examination at trial transcript p 853: Q. Just read your answer to yourself, answer 55. Have you read that? A. Yes I have. Q. In cross-examination you were asked in reference as an answer, how did you know what it was and your answer was "Because he was rubbing his penis" is that right? A. Yes. Q. Can you just explain to his Honour what it is you saw? A. Why what do you mean? Q. The answer you gave because he was rubbing his penis I want you to think back to that incident where he was rubbing his penis? A. Yep". 1. Mr Conditsis rose to object. He said, "Your Honour I'm concerned about possible conflating of timeframes, given this witness's evidence". He repeated "I'm concerned that there might be cross-purposes the way the question has been asked as to". I then said, "You were asked some questions about this topic at question 55 [in her] interview and her answer is 'I knew what it was'. I think all the Crown is asking is what she saw the accused doing at that time that she was speaking of at question 55." Mr Conditsis responded, "Yes I did take the witness to her record of interview and I thought the witness had given some answers about that topic. But in any event, I'll say no more about the matter, your Honour". The Crown then continued. "Q. I'll just ask you that again. In cross-examination you were asked how did you know what it was and you said, 'because he was rubbing his penis'". A. Yep. Q. Thinking back to that incident, I just want to clarify this with you because just confirm this is what you said in cross-examination. The accused was standing near the door at this point, your bedroom door, is that right? A. Yes. Q. What did you see the accused do? A. What do you mean about the accused, I don't know what you mean? Q. Sorry I've used the word "did you", it's Ray. What did you see Ray do? A. Well I saw him rubbing his penis when he had his shorts on. Q. The Crown referred to the interview from question 107 including question 112. Question 107. Okay so when you said you had a shower and then you went in to get changed? A. Aha. Q 108. Whose room were - did you go into get changed in? A. My room. Q 109 Was anyone else in your room at that time? A. No. Q 110. No, you did say that K and I were asleep. Were you in a different room or the same room? A. A different room. Q 111. Okay and you said you shut the door and Ray opened it? A. Yes. Q 112. Did anything - and you said that he said "Come out and I'll show you something". Did anything happen between when he opened the door to when he said that? A. He smiled like good smile, like hm, hmm like a plan that's going on. Q 113. Yeah? A. That and I probably knew what he was going to show me". 1. The Crown referred to her cross-examination about a particular answer to question 112 which if read in isolation does seem odd. In the cross-examination at page 831 she was asked at line 10, "Q. What did you mean by that, like a plan that's going on? A. Like he was going to make a plan. Q. The officer said "Yeah". And then you said "That and I probably knew what he was going to show me", did you see that? A. Yes. Q. When you said "I probably knew what he was going to show me", was that a correct answer? A. Yes. Q. Well how did you know? A. Because he was rubbing his penis in front of me. Q. So just to be clear, was he rubbing his penis in front of you while he was up or about the doorway? A. Yes. Q. If you read the next question, yeah because you did say that you knew what it was. What made you know what it was? And your answer was? A. That he like you know, how your undies like go up your butt. Q. Do you see that answer? A. Yes. Q. What did you mean by that when you gave that answer if you're able to describe? A. I really don't know because I was young then and then the next part of that answer is ...(not transcribable)..." 1. She was re-examined on this point at transcript page 862, commencing at line 43 through to the following page at line 25. "Q. What did you mean by that answer, "I was young then"? A. Like I didn't know how like I don't know like I didn't know what was going on. Q. When you say, you didn't know what was going on, can you just, can I just ask you to explain what you mean by that? A. Like. Q. You can take your time that's okay? A. Like I didn't know if his undies were like near there or like kind of like I don't know stuck or something. Q. Near where? A. His penis. Q. And stuck where? A. I don't know like somewhere like near it like I don't know I didn't know like what was going on at that point. Q. When you say "at that point" what point do you mean? A. I didn't know what was going on like when he was doing it. Q. When you say, "doing it" what do you mean? A. Like rubbing his penis. Q. You were asked in cross-examination that you didn't tell the police in this interview any answer that included because he was rubbing his penis and you agreed that that was correct, do you remember that? A. Yeah. Q. Why didn't you tell the police officer in this interview the answer because he was rubbing his penis? A. I didn't know how to say it then." The Crown referred to questions 120 to 133 in the interview. "Q 120. Yeah so what do you mean by "undies up your bum" tell me more about that, what do you mean? A. Well like his undies went up his thingamajiggy I don't want to say it. Q 121. That's okay, do you reckon you could spell it out? A. D. Q 122. Yeah? A. O, can't remember how to spell. Q 123. That's okay, what would a school teacher call it? A. A willy. Q 124. A willy, and who has those boys and girls or just a boy? A. Boys. Q 125. Boys, what do they use those for? A. Wee. Q 126. Wee, okay, so I'm kind of a bit - I'm not sure what you mean about this, undies being up there, what do you mean? Can you tell me a bit more? A. Like he that he put it up too high by accident probably. Q 127. Yeah? A. Probably, he sat down something or something but it went up his butt and I mean front thingamajiggy. Q 128. Right? A. And. Q 129. And where was he when, when you first noticed that? A. What do you mean? Q 130. Were you in your bedroom or were you out of your bedroom when you first saw that? A. When I saw him pull his-- Q 131. Mm? A. --undies out, I was in my room. Q 132. Okay and what was he wearing? A. Clothes. Q 133. Do you know what sort of clothes what? A. Pyjamas." 1. The Crown submitted that read in context the topic was something that she struggled to explain in her interview. The Crown read from question 120 the passages to which I quoted. The Crown submitted that the questions and answers show that there was something occurring at the bedroom door and referred to questions 141 to 143. "Q 141. Ah ha and where was he in your room? A. Well he wasn't in my room he was just near my - that gate I used that I had a gate. Q 142. Yeah? A. So I have a door in there. Q 143. Okay? So he was not in your room he was just near the gate? A. (No audible reply) Q 144. How far away from you do you think that was, is it something you could see that would be the same distance from you that you think he was? A. Mm mm, probably about this far I'll say like. Q 145. From that wall to you there? A. Yeah. Q 146. So like one to two metres? A. Yeah. Q 147. One and half to two metres okay and what were his - so you said that this thing happened with his called a willy? A. Ah ha. Q 148. What could you see, could you see his willy or you couldn't see his willy? A. I couldn't see it." 1. The Crown submits that this demonstrates that she was trying to tell the police about an incident where the accused was standing in the bedroom door, it involved his willy or his front thingamajig while he had his clothes on. She struggled to explain this in the interview, precisely what she said in her evidence was that she didn't know how to say it. 2. The Crown submitted the 14-year-old child was quite clearly able to articulate that what he was doing was rubbing himself over the top of his shorts where his penis was and he invites the Court to conclude that as a ten-year-old she was doing her best to articulate that incident but in a way that was not particularly clear. 3. The Crown submits that the Court would conclude that what happened at the bedroom door was separate to counts 14 and 15, the lounge room incident, and that the first time she said anything about the accused rubbing himself on the penis at the bedroom door was not in her evidence. Properly understood in the context discussed, SC-A had tried to explain it before in her interview. 4. I agree with the submission and I accept the complainant's evidence in that regard. 5. The Crown turned to the accused's interview, exhibit R, and submitted that the Court would reject the accused's denials of sexual offences for three reasons. 6. First, he lied to the police about having access to pornography from the iPad. He was questioned about using his iPad to access adult pornography and he denied ever doing it, question 686 to 688 and at 695 to 697. The Crown referred to exhibit S with extracts of the web history and the pornographic websites accessed. The Crown invited the inference that the accused accessed those sites. 7. I accept the submission that the accused lied about this to the police and this impacts upon the assessment of his credit. 8. Secondly, his assertions about being alone and the opportunities for him to be alone with the children were untruthful, lack implausibility and are against common sense. The Crown played questions 476 to 491 and questions 545 to 552 of exhibit R, the electronic recording of the interview where the allegations relating to AH were being discussed. 9. The Crown submits that the answers that he gave about never or very rarely being alone with AH are unbelievable when considered against the objective facts. AH lived in the house for seven years from July 2008 through to July 2015 and for one of those years was the only child in the ongoing care of the accused and his wife. RH lived in the house for about five years and SC-A lived in the house for about three years during which at different points the children were taken to activities by either the accused or his wife alternating the task between them. The Crown submits that the answers asserting he was never or rarely alone with the complainants is implausible. 10. I agree with that submission, this once again impacts upon the assessment of his credit. 11. Thirdly, the Crown submits that his answers about the conversation that he had with Pauline Maguire about the SC-A disclosure were evasive and inconsistent with the evidence of Pauline Maguire about what she said to him. The Crown played questions 598 to 648 of exhibit R. The Crown pointed to inconsistency with Pauline Maguire who gave evidence that she had told the accused of some of the things that he allegedly showed SC-A on the iPad including a male and female having sex. The significance of such a conversation with his wife could not have been lost on the accused, the Crown submits, and it would have been recalled. His answers were implausible and impacted upon his credit. 12. I accept this submission. 13. I noted earlier that should I not accept the accused's answers in the interview identified by the Crown and elsewhere, leaving doubt about the truthfulness of his answers denying the offences, the subject of the interview, it does not follow that he is guilty of the offences or any of them. It remains that the Crown cannot succeed unless the evidence it presents satisfies me that he is guilty. 14. The Crown dealt with the evidence of the accused's character and submitted that it was challenged by the evidence from SC-A, about verbal and physical mistreatment, and in any event was not a defence to the charges. 15. The Crown turned to the tendency evidence and submitted it to be an important part of the Crown case that the three complainants who independently of one another complained of conduct that shared a number of fundamental similarities. The Crown referred to exhibit A on the voir dire. 16. There were three tendencies the Crown could rely upon including the accused's sexual interest and tendency to act on it in relation to RH and AH. The first was sexual interest in RH and tendency to act on it from the counts relating to her on the indictment. The next was a tendency to be sexually interested in AH and a tendency to act on it relating to the counts on the indictment that concerned her. 17. The Crown submitted that the third tendency was of greatest moment in the Crown case; that is, his tendency to have a sexual interest in young teenage and pre-teenage girls and a tendency to act on it. 18. This bare summary reflects the decision by Judge Wilson which I quoted earlier and which I do not need to repeat here. It allows the Crown to put the evidence for the purpose of tendency across all the counts. 19. The Crown referred to earlier discussions regarding the standard of proof in respect of evidence of charged offences used for tendency purposes and accepted the view that authority leading to and the enactment of s 161A Criminal Procedure Act 1986 did not require proof beyond reasonable doubt for it was not evidence of an indispensable link in the chain of reasoning tendency but a piece of circumstantial evidence in the Crown case. 20. The Crown submitted that there was no evidence that any complainant discussed any of the allegations. RH and SC-A barely knew each other. The extent of their contact was no more than a Facebook message saying hello. Although AH and RH are sisters, there is no evidence of any discussion between them about the nature of the allegations and they expressly disavowed any such discussion. 21. The Crown turned to the elements of the charges at which point Mr Conditsis conceded that if the evidence is accepted, it established the elements of each of the charges. 22. I referred earlier on this judgement to authority when dealing with counts 6, 7, and 15, R v Eade [2002] NSWCCA 257. I quoted from the judgement of Smart AJ. As I was delivering this judgement commenced yesterday, the Crown invited my attention to a further authority, R v Chonka [2000] NSWCCA 466 and in particular paragraph [50]. This was once more a decision in which Smart AJ participated on this occasion with Fitzgerald JA and Ireland AJ. At paragraph [50] their Honours wrote, "One other specific defect in the summing-up should be noted. There is a degree of ambiguity in the trial judge's statement 'that the ordinary meaning of the word incite is to do some act intending to urge, suggest or stimulate to action.' The point can be illustrated by reference to a suggestion relied upon as an incitement. The suggestion might be intentionally (that is i.e. deliberately) made without any intention they are to be acted upon; for example, a suggestion intentionally might be ironic vulgar abuse. Before the appellant could be convicted, the jury had to be satisfied beyond reasonable doubt that he intended the complainants to engage in the sexual activity which is suggested the persons whom he identified (or was recklessly indifferent to whether or not they did so). 1. The Crown correctly noted that this imposed a higher burden upon it in respect of counts 6 and 7; that the terms of the s 61A Crimes Act 1900 did not on the face of the words used attract that as an element; but that in light of that authority, to which I was taken, the Crown has the burden of establishing intention consistent with what their Honours had to say. 2. This does not however diminish the force of the concession made on behalf of the accused that the conduct alleged if accepted satisfies all elements of those counts including the requisite intention. Moreover, the view I have taken of the evidence given in respect of that misconduct is such that there could be no other conclusion to draw other than the accused had the intention contemplated as acknowledged by the Crown. THE ACCUSED'S SUBMISSIONS 1. Now to deal with the submissions made on behalf of the accused. 2. Mr Conditsis provided documents to which he spoke in oral submissions at some considerable length. These comprised a one-page document with 15 points identifying the subject matter of the submissions. He also provided three documents marked annexures A, B and C respectively dealing with the points to be raised in relation to RH, AH and then SC-A. 3. The submissions made orally were, as I said, of some length and perhaps on reflection they are succinctly expressed in the written documents which I will incorporate in this judgement. 4. Regarding RH he wrote with reference to transcript making the following points from her evidence. 5. She had a pretty good relationship with Pauline Maguire and they opened up to each other. The relationship with the accused was pretty good until he began touching her and taking photos about one year and three to six months after she moved in, over 18 months to December 2009 when she was nearly 11 years old. The evidence that concluded the event in count 2 was probably six months after count 1. There was criticism in the submission made in respect of that evidence. 6. Upon reflection I will return to my original course and sift through the oral submissions but note that I have read and considered each of the written documents provided in respect of each of the three complainants and that they will be included as part of the judgement. 7. At the outset of his oral submissions Mr Conditsis conceded that there was an opportunity for the accused to engage upon the alleged conduct with the three complainants as they had alleged. He conceded that he did not intend to make any submission that there was no opportunity for clearly there was over the years as the Crown correctly stated when the children were in his home. 8. As to SC-A and her evidence that the conduct occurred when Pauline Maguire was in Canberra, though the accused concedes he had opportunity, it was not and the Court would not find that it was when she was Canberra and that in turn impacted upon SC-A's reliability. 9. Regarding the shed in the rear yard, which he understood later relates to the counts in relation to RH, he submitted that the precise timeframes for those offences are unclear and even if one were to accept for present purposes that what occurred was in 2012 and 2013, because RH left the home in June of 2013, the offences could not have been later than that. 10. The shed displayed in the search warrant video recorded in March 2018 was therefore between five or six years, which he amplified to seven years in later submissions, after the last offending could have occurred in that shed, leaving the images of the state of the shed in the video of little, if any, assistance. 11. There was delay in complaints to authorities. The first time there was any reference to anything specific happening in the shed was when RH made her statement of 25 June 2018, and after the execution of a search warrant by the police. This provides an explanation for not taking any particular interest in the videos that were seen in the shed because the police were unaware at that point of their significance. 12. Therefore the search warrant video in March 2018 goes only some way in supporting RH's evidence of events going back as much as five or six years or now seven years prior to the search warrant video being seen. 13. The search warrant video offers but limited support for RH in light of the answers by the accused in the ERISP about the state of the shed at the times of the alleged offences, and the evidence of Pauline Maguire as to the state of the shed, and the evidence of Zoey McPhee, and to the lesser extent the evidence of Klyde Morris. 14. Mr Conditsis, upon the image in photograph 3 in exhibit 3, said that the state of the shed there is to be contrasted with what to be seen in the video of the search warrant in March 2018, though he concedes that the image was captured from a discreet angle with a limited field depicted. 15. Upon this material Mr Conditsis submitted that the state of the shed in March 2018 cannot be any support for RH's allegation in relation to those counts or any context evidence in that regard. At least to some extent that submission has much force because the video recording of the search was a significant number of years after the alleged misconduct and the appearance of the shed in that video recording does not match the description given to the way the shed was used over previous years and what might be summarised as a shambolic arrangement of the contents that were within it. 16. I would note though that even accepting the force of the submission the evidence regarding the state of the shed included that access could be had to the rear sections of space left between the items that were stored in it; they are submissions that invite careful consideration of RH's evidence. It could not be said to go so far as to require a finding that it was impossible for the offences to have occurred in that location as RH alleged. 17. Mr Conditsis conceded that there was no issue that the accused had in his possession three USB's containing adult pornography, and that there was no issue that the Cellebrite extraction of information from the iPad of the accused had located adult pornography, but he added that there would be submissions upon the significance of the evidence from Senior Constable Mayer regarding creation dates and deletion dates. 18. Mr Conditsis conceded that the Court was entitled to find the accused had knowledge of the pornography on the USB and on the iPad, and for his present purposes, that the last visited date sites on the iPad were on various dates in March 2018 not long before the execution of the warrant and his arrest. 19. He accepted that the last date set the outer boundary for the times when these sites were accessed but it was not possible to say when the accused accessed those sites before then or identified the nature and extent of the access or how often it occurred. 20. There were some rows in the table that showed multiple access albeit on the same date in each case, but the records show nothing to indicate for what period the accused accessed the sites and as I said, the limit of when that was done in whatever form that actually took was marked by the times and dates on the analysis. 21. Regarding this, Mr Conditsis reminded me of the evidence of Senior Constable Mayer that depending upon what application the accused had, for example an anti-virus application that might have been running, it could have been the anti-virus application that ran a test which caused that last access date. 22. Another point of significance was regarding the accused's answers in his interview, to which the Crown referred, revealing that the accused was aware that there was an allegation that he had pornography on the iPad that was shown to SC-A, which in the interview he did not acknowledge. He did not know of what his wife spoke, according to the answers, when she told him about something being shown on the iPad and yet those sites were deleted. 23. I am of the view that there is available the inference that the accused became aware that there was the allegation in terms as described by SC-A, and in response he took steps, to the extent that he was able to do so, to rid the device of any record of having access to those sites whilst other innocuous sites were left in place. 24. The submission contesting this included that it was not known from the evidence when the pornographic sites were deleted, though Mr Conditsis conceded the possibility that the accused carried out the deletions because at or about the time that he might have done so, he knew that SC-A had made allegations, but there were reasons for another explanation upon which the Court would not make the finding that I have indicated. 25. First, the accused told the police during his interview, consistent with the thrust of the evidence of Mark Fitzsummons, that the accused did not know from 'Life Without Barriers' or Family and Community Services or police the specificity or the general nature of the allegations against him until he was interviewed by police. He was not told that they were of a sexual nature as distinct, for example, from a physical nature, physical beatings, or things of that type. He might have had suspicions, but even so merely looking at adult pornography does not make a person a sexual child abuser. 26. The ultimate point might have merit standing alone, but what was alleged by the Crown was access to adult pornography which was allegedly shown to two of the children including on an iPad. 27. Mr Conditsis submitted that the Court could not infer anything sinister applying the presumption of innocence, if the accused looked at pornography. It was possible that he knew some allegations were made but not their specificity. He had pornography and he deleted it. It was but one possibility that he did so because he knew what he had done to these girls. 28. However, another possible inference is that he had pornography and deleted it and he did so because he did not want his wife to know about it. 29. However, as was made clear, the Crown did not rely upon this as evidence of consciousness of guilt but with regard to the accused's credibility and the assessment of the weight to be given to his answers in the ERISP. Mr Conditsis conceded that this was the appropriate use of the evidence, but even so the Court had to consider what other reasonable explanations there might be. He submitted that it is also a reasonable inference that the deletions were effected, not because of any guilty mind or sinister intent, but because he was a 60-year-old man watching pornography, was ashamed of it and did not want his wife to know, knew he was being investigated and thought it was a good idea to be rid of it, not wanting it on his device. 30. I find that the reasonable inference to draw in this instance is that for which the Crown contends. 31. It impacts upon the assessment of his credibility when considering his responses in the ERISP denying misconduct. It is implausible, to my mind, that he was not aware of the terms of the allegations made about him by SC-A to his wife at least in some form and that he did not delete these sites consequently. 32. Mr Conditsis addressed the evidence regarding what the accused's wife said to him in response to the information from SC-A. He noted the evidence she gave would urge the Court to "cut the accused some slack" by reason of his circumstances on the day of his arrest, that he obviously would have been stressed and under pressure, he was a person of otherwise good character, he suffered a lengthy interrogation, and yet he acknowledged that his wife said something to him about this which he did not have to volunteer at all. 33. Thus it was submitted that rather than impact adversely, these circumstances enhance his credit. If he had a guilty mind, if he was this sexual child offender of three girls who had been in his household for care, why did he volunteer to police, "well, actually S, yes, told Pauline that I showed her something", why even tell them that, Mr Conditsis asked. The police in the interview knew nothing of what his wife would say because she had not at that point made a statement, and yet he volunteered that information. 34. This was a point upon which the Crown addressed impacting upon the assessment of the evidence of his wife Pauline who did not make a statement until at some point after the ERISP. 35. As posed, the submission on behalf of the accused extended into the area of consciousness of guilt which as I noted was not the use to which the Crown asked the Court to put this evidence. In response to the proposition that the accused failed to tell the whole story, Mr Conditsis submitted if one is in the position of the accused at his age with a life of no prior matters, a person of otherwise good character in the situation of having cared for these children, faced with these allegations and innocent, he would be in a state of shock and anxiety and a perfectly reasonable reaction to what was occurring might innocently omit some information. His mental state might have been such that he could not recall all the detail of what Pauline Maguire was telling him, or he may have even tried to minimise it to some extent. Mr Conditsis submitted that this does not mean he is guilty, it does not mean he has a guilty mind and it does not mean that it should impact adversely upon his credit. He submitted that he would not be the first witness to be accepted as a witness of truth, yet to have somewhere in the passage of their evidence minimised some aspect of it. 36. He turned to the possession of pornography on the USBs and the iPad to make some brief points. First, if the evidence was that the accused was absolutely obsessed with pornography, adult pornography or a particular type of adult pornography, such that the Court could potentially draw an inference that it was operating on his mind a whole lot of the time or even all of the time, or put another way, if there was evidence that he was addicted to adult pornography, that would heighten the extent to which the Court would form the view that this material supports or does not support or corroborate the complainants' version of being shown the pornography. 37. I did not quite understand the force of this submission, but upon reflection it appears or it might have been that what was being said to me was that addiction and interest in adult pornography would be inconsistent with interest in pre-teenage or early teenage children for sexual purposes. 38. That said, the later submissions made were to the effect that the quantity of material that might have been accessed and found on these devices was limited in extent in any event. Thus, as I understand the submission, perhaps it was intended in the following terms, that an interest in adult pornography is inconsistent with an interest of a sexual nature in children of these ages. 39. In relation to the iPad he turned to what he described as the actual evidence. There were 5,000 pages of content on the iPad and I would accept what was next said, that one might anticipate that the police would scour it entirely for material of relevance to the trial. Ultimately there were but six or seven pages, perhaps even less, with adult pornography and a series of last visited dates. Thus, in context there was a fairly small amount of this material compared with the substantial extent of the data of some 5,000 pages. Moreover, there were found no relevant search words in relation to pornography in the profile of the iPad. 40. He then spoke of the USBs and noted that there were 23 that were seized with only three of them containing content upon which the Crown relied for its case. 41. Thus, the Court is invited to the view that it could not be said that the accused was addicted or obsessed with pornography that was of the type that was found, such that it might occupy his mind 24 hours of each day. 42. A stage had been reached when the Court was to adjourn and there was then a discussion leading to documents that Mr Conditsis wanted to provide; I have already made note of those annexures A, B and C respectfully which I will add to the judgement. 43. There was also a discussion as to directions that I would be required to note. The Crown provided material in dot point form over one page identifying the areas that my directions should cover. Mr Conditsis was more expansive in his document but the parties were not far apart on the points that needed to be traversed. I shall note those matters before I come to the findings that I am intending to make in this trial. 44. He provided a brief description of the intended structure or a structure adopted in the documents relating to each of the complainants and when we were next to resume he intended to provide a broad outline of submissions without referring in any great detail to the specificity of the evidence because of the time that would be consumed if he was to follow that path. 45. Upon resumption on 17 December 2021 he commenced by adding some points that he failed to make regarding the shed and the execution of the search warrant. He referred to evidence from RH and identified seven years as the period that was likely to have elapsed from when she said these things occurred and when the search warrant was executed. The evidence was from RH that the pornography shown to her in the shed was presented prior to the new shed having been built or the older shed as it was put had been rebuilt. In that circumstance it was submitted that the Court would place little value upon what was to be seen of video cassettes in the search warrant video, and the proposition advanced by the Crown that it was another piece of evidence from which to find support for RH, including the presence of a VCR player, would attract much lesser weight than was urged by the Crown. 46. He conceded though there was not an issue that in the house there was a VHS player or a video cassette player as it might have been described, and he noted the evidence that had been given by RH regarding that. But there was no evidence, he said, by anyone including RH that a video cassette player had been taken from the house to the shed for the purposes of the conduct that was alleged of the accused there. 47. He spoke of the evidence which he said revealed the accused as a hoarder, a matter that appeared not to be in dispute, and is correct upon the evidence called including that of his wife and Ms McPhee and his neighbour, each of them referring to what might be said to have been the shambolic state of the shed, at least before the execution of the search warrant. The accused might have tended to hoard items or he might have simply been an untidy person with the inability to properly store and provide space for all the accumulated items in his shed, workshop, whatever it might have been for whatever activity, including whatever panel beating work he continued to do. 48. He submitted that the presence of video cassettes in the shed could add nothing to the Crown case and the effluxion of time limited, if not dissipated, the probative value that might have had. 49. I am of the view that the submission puts the proposition a little too high on behalf of the accused; the evidence provides support for the presence of video cassettes and a video cassette player available to the accused at the time it was alleged that these offences occurred. It is a circumstance that I bring into account in support of the credibility of the evidence given by the complainant RH. 50. He turned then to the various ways the complainants have said that they saw pornographic material. RH said she saw it on a cassette player on an old TV in the shed; AH referred to having seen it on a computer upstairs in the new room; and SC-A saw it on an iPad. He addressed each of those briefly. 51. The first time RH made any complaint about watching pornographic videos, as he understood her evidence, was in her statement of 25 June 2018. She spoke to the police in 2017 but he said he could not find any reference to pornographic material; there was a reference to photos and sexual activity but not watching pornographic material that he could see in any of the material that he had. 52. He then turned to the proposition that RH had spent a significant period, indeed years, in the house when she had access to USBs; he does not suggest that RH downloaded any pornographic material onto those devices but she had access to them as did others. He submitted that one could not rule out as a possibility that at some stage prior to leaving the placement in June 2013 that RH inadvisably or otherwise viewed USBs and viewed some of the pornographic material that was on the USBs. That is available, he submitted, as a competing inference to those for which the Crown contended. 53. I made the comment though that the evidence went beyond that. The possibility for which Mr Conditsis had contended would have to include that the complainant RH had the presence of mind to draw upon what she saw on the USBs and then have the sophistication to use that to the disadvantage of the accused in a carefully structured allegation of behaviour which was the subject of part of the evidence upon which the Crown relied in the nature of coincidence evidence. But notwithstanding his acknowledgment of the merit of that view Mr Conditsis continued the submission that what he proposed was a reasonable possibility that competed with that for which the Crown contended. 54. He turned to AH who left the place on 10 July 2015 and therein was the possibility, he said, that she viewed the USBs intentionally or inadvertently and then there was more than a possibility, which looms large he said for a number of reasons that he would get to, that there might have been discussions between RH and AH about various things including whether the accused had pornographic material, whether it was on the USB or anywhere else. He noted that AH had said nothing to Mr Haggarty or Senior Constable Bear or to the officer in charge in the first police statement on 16 August 2017 about viewing any pornographic material. That did not appear, he said, until the second statement on 21 March 2019 nine months after RH had made her first statement on 25 June 2018 when she outlined her allegations of viewing the pornography. 55. That was, as I understood his submissions, something of a challenge to the Crown case because it carries the implication that there was communication between them upon the topic of pornography and that would cause the Court concern, sufficient to have a doubt about the reliability of their evidence and the credibility of their evidence dealing with that topic. 56. However, as the Crown noted, there was no evidence of any improper combination between these complainants. It would carry the implication that these girls had the sophistication and skill to draw upon various objective facts and craft a series of allegations with corroborative evidence to the disadvantage of the accused. I find that difficult to accept. 57. Mr Conditsis referred to SC-A's evidence regarding the exposure of pornography on the iPad and the event that followed. He touched upon the evidence as to precisely when it could be said or to what extent it could be said that the complainant was speaking when she said the accused touched his penis in front of her, a matter that he would touch upon later he said. He noted that the display of pornography only occurred once to her according to SC-A's evidence. AH was also placed in that house for a period when SC-A was there. They considered and were to be considered as friends and that carried the implication that they might have combined to speak about whether the accused did or did not have pornographic material. 58. Once again the merit of that submission depends upon the level of sophistication that these children would have had to craft the allegations in the terms that have been presented to the detriment of the accused. 59. He referred to evidence that SC-A had access to USBs in the period between 2014 and 2017, but in her first interview there was no disclosure or any allegations made regarding counts 14 and 15 or any context evidence. That did not arise until 1 February 2018. Again, he would deal with that at a later point he said. 60. He then returned to the possession of pornography on the USBs and the iPad. The mere presence of that material does not lead to the view that the accused wanted to show pornography to any of these children one way or another, although clearly had he wanted to do so it was there and available to him. He said that access to the pornography could happen anyway simply by going on to the internet. Again, he touched briefly upon the point he was endeavouring to make intending to come back to it later. 61. There was some evidence about the TV that was exhibited or displayed in a photograph of a birthday celebration which had at some point blown up. In the absence of any evidence of another old TV with a box shape the only evidence of a player, a video cassette player in the shed fell from RH. AH spoke of viewing pornographic material on numerous occasions in the lounge room when no sex occurred, a peculiarity he said to which he would return in due course. AH said the pornography she saw was on a computer, not the iPad and not a video cassette recorder; the detail of this submission regarding that appears in annexure B. 62. He spent some time reinforcing the proposition that there was no evidence of any search webs of a pornographic nature in any of the material that was put before the Court by way of the Cellebrite reports, notwithstanding that the police had access to all the devices that they removed from the accused's home. The only evidence of pornography was found on the iPad and the USBs; none was found on the video cassettes, because they were not seized at the point of the search their significance was not appreciated by the investigators at the time. He turned to the credibility and the reliability of each of the complainants beginning with RH. 63. He referred to annexure A which had he said the specificity of the source of material for the submissions being made. No complaint was made by her to an adult until 26 January 2017. 64. There was a contrast between what was said by RH and what was said by JH. He referred to the evidence that RH did not want her mother, now deceased, to hear about the allegations from JH. He summarised the evidence that was given by RH concerning the disclosure to her mother and father. He summarised the evidence of complaint which the Crown addressed upon and noted the Crown submission that it is not unusual to get inconsistencies in complaint evidence and the submission of the Crown that the Court would accept the thrust of the evidence of complaint. He submitted that it is not unusual for there to be inconsistencies in complaint evidence and that is an observation with which I would agree having heard so many of these cases. 65. But in each case the tribunal of fact must weigh it all up and make an assessment as to the impact upon credibility and reliability of important witnesses where there are inconsistencies, including omissions. 66. He analysed the evidence given by PT, HF, JB, RH and JH, and noted that it was striking that there is no evidence of any conversation between JH and AH, bearing in mind that JH is the older sister and did not make any enquiry of AH after she was made aware of the allegations by RH. 67. He also advanced the proposition of that there was no complaint made to anyone in authority, notwithstanding the opportunities that were available to all of these children by reason of their circumstances, including regular attendances by police at their home in response to the conduct attributed to their father and the involvement of Family and Community Services and 'Life Without Barriers'. However, as I noted earlier regarding the Crown submissions, these were children and I am satisfied that there were reasons why they did not disclose the conduct when they were first exposed to it as they described in their evidence and which I accept. 68. It is particularly significant in my view that Mr Fitzsummons was concerned to ensure that these children did not remain with or return to their birth parents but would remain with foster carers; at the material times they were they accused and his wife. 69. The reliability of what was said by Mr Fitzsummons to which Mr Conditsis spoke of course was impacted by the lack of memory of anything he spoke about, drawing only upon reports and records that he made in respect of each of the visits to which those documents spoke. His position was similar to Mr Haggarty. They had no independent memory of events within this context. They were in the position to say only that they would make reliable notes of whatever occurred at least in the sense of accuracy, which would enable them to return to the documents to see what they recorded at the time. It remained though that upon their evidence they had no memory of the event against which to compare the notes to offer the view that what they had recorded was true and correct in all respects. That said, there is some weight to be attributed to their notes. One would expect that they would in their professional role strive to provide an accurate record of what occurred, what they saw, what they heard, and to that extent it is quite clear that the complainants did not report these events when they might have done for the reasons they have given, which I accept. 70. There was some discussion between Mr Conditsis and the bench regarding their lack of independent recollection but as I noted all that could be said is that Mr Fitzsummons made notes and if he made notes then there must have been events that occurred consistent with those notes, which did not contain entirely verbatim recordings of what he said or what he claims by way of the notes that were said to him, by whoever might have spoken. 71. I refer to what I find to be fundamental proposition in our Courts that the witness giving evidence must be able to have a recollection of the matters to which they are speaking in evidence. Mr Conditsis spent some time on the proposition that the complainants did not record events when they might have, either to the police, to Family and Community Services or to 'Life Without Barriers'. But I have noted from the Crown submission that the sequence of complaint is, I find, what one might expect in the circumstances of children, following the sequences revealed in their evidence. 72. There was reference to delay and that is a matter that I have not overlooked. There is an impact upon the opportunity for the accused to defend himself against these allegations when there has been a delay of significance in the reporting of a matter. There is lost opportunity to gather evidence that might have otherwise been provided. In this case that would include the presence of a television that might have been used to display pornography as alleged by RH in the shed. It might have enhanced the prosecution case but one way or another the accused has not had the opportunity to produce the item to show that, if it be the case, what was said RH could not be correct; I have not overlooked that, and generally the impact of delay upon the forensic advantages the accused might have otherwise had in defence of these matters, including evidence that might have been called from other witnesses. 73. Relevant in this context is the inability of Mr Haggarty and Mr Fitzsummons to have an independent recollection of what occurred, confining their evidence to the fact that they made notes and shortly after the events to which those matters speak. 74. Leaving aside the discussion that Mr Conditsis and I embarked upon with regard to whether a witness without any recollection of an event is able to give evidence about it, when even their notes do not provide the opportunity to refresh whatever memory they might have, it is the case with which the Crown does not cavil that there was no report by the complainants of these events until those occasions to which their evidence and the evidence of others speaks. There was reference during argument about the loss of forensic advantage which I also take into account. 75. Mr Conditsis spoke about how RH had represented to Mr Fitzsummons that she was happy in the placement on about 4 June, the date he identified, and eight days later on 14 June after she had left to return to her birth parents. 76. Mr Conditsis, as was anticipated by the Crown, advanced argument in terms that it was implausible that RH who purported to be close to her sister AH did not make any enquiry of AH as to whether she was in a safe environment in the accused's home and whether she might have been suffering the same fate that she claimed to have suffered; that was said to be an implausible set of circumstances if it be the case that RH had suffered as she alleged. I have already made comment about this when I dealt with the Crown's submissions on the point. 77. He spoke about the peculiar aspect of the evidence from RH drawing upon his own status and age urging the view that it would be unlikely that a man in his 60s would go into the bedroom as was asserted in the middle of the night to get her out of the bed and to come into a common area and then engage in the penile‑vaginal sexual intercourse on the chair as the complainant described. 78. I did not find in favour of that submission. It is contrary to the experience of the courts regarding allegations of this nature, regardless of the age of the person said to be a perpetrator. 79. Regarding the allegation of sex on the coffee table he spoke of the limits through age by loss of agility. There was discussion about how the accused presented on the screen in the execution of a search warrant which in my view provided no support for the proposition advanced. 80. He spoke to the implausibility as one might describe of the alleged misconduct against both RH and AH in that period when they were both in the home. The frequency of the alleged offending was such that one might have thought that each of them would have been made aware of the conduct allegedly directed towards the other, and there was no evidence at all he submitted that anyone saw anything of any such behaviour. 81. He sought a direction in terms of the decision in Murray and a 165A(2) Evidence Act 1995 and he referred to the decision of Ewen v R [2015] NSWCCA 117 and the impact upon the opportunity for a direction in accordance with R v Murray (1987) 11 NSWLR 12 discussed in Ewen with reference to s 294AA Criminal Procedure Act 1986. 82. He conceded that the impact of Ewen was that a direction in the form of a Murray direction in relation to children should not be given, but it did not follow that the need for a Murray warning could be said to no longer exist in all instances, a matter upon which he said Simpson J was clear. That is to say, there may be circumstances in which it may be appropriate for it to be given in a trial. 83. Leaving aside the merit of the submission regarding a Murray direction and the impact of the decision in Ewen ibid and the impact of legislation that has been enacted in relatively recent times regarding these matters, I have, I would confirm, carefully looked at the evidence given by these complainants and taken the trouble to quote at some length what they had to say about their allegations against the accused. 84. I have considered with some care the cross-examination that was administered on behalf of the accused towards each of them and the points which Mr Conditsis has advanced regarding inconsistencies in the complaint evidence, the delays which are patent in having the matter brought to the attention of authorities, and the loss of forensic advantage that was suffered by the accused in the timeline leading to his arrest and prosecution. 85. It is noteworthy in this context that he was interviewed in relation to but some of the allegations against him and chose not to take that opportunity when the police returned to continue their investigations upon notice of other offending. Nothing adverse is to be drawn against the accused by reason of that decision. He enjoyed the presumption of innocence. He was entitled to remain silent even at the point of the first interview in which he participated without the benefit of a lawyer I might add. The right to silence is a jealously guarded principle over which the Courts and Parliament exercise their authority, and the fact that he chose not to participate in an interview cannot and will not be used against him in any manner. 86. There was also criticism of RH regarding her evidence that she did not know whether the accused had ever ejaculated in her body and the general thrust of her evidence that she did not know whether he ever used a condom during the sexual misconduct. That was a curious feature of the case, he suggested. 87. I believe I have fairly summarised the submissions that were made by Mr Conditsis over an extended period, drawing upon the points that he developed in cross-examination of each of the complainants which he said impacted upon their credibility such that I could not accept the truth and accuracy of what they had to say beyond reasonable doubt. 88. To ensure that I have not overlooked some aspect of what Mr Conditsis has advanced I will note that in relation to RH he wrote 100 points drawing upon her evidence regarding the conduct alleged in respect of count 2. He drew a contrast between what she advanced initially and the evidence given in cross-examination. He spoke of the extreme risk that might be involved in the accused having taken RH into the shed to engage upon the activity alleged when his wife might walk in upon him. He dealt with the question of ejaculation to which I have referred. He dealt with the conduct the subject of count 5 and sought to identify inconsistencies in the evidence which he has articulated in this document. As I have said I have read that document, relevant to RH, that relevant to AH, and the document relevant to SC-A. 89. I do not intend to repeat all that is there written as I am intending to include it in the material that will comprise this judgement. 90. The Crown in the directions it sought referred to the form of the recording of the evidence presented in respect of SC-A; I note that is a process that is followed in most if not all such matters now by force of the legislation that governs these proceedings; there is nothing unusual in it. The evidence attracts no greater or lesser weight because it is presented in that fashion and no inference adverse to the accused is to be drawn from the fact that the evidence was presented from SC-A by way first of an initial recording or recordings of what she had to say. 91. Evidence was given by the complainants via closed circuit television; once again the process followed is one that is now regularly pursued in accordance with legislation governing these proceedings. The evidence attracts no greater or lesser weight by reason of that and no inference adverse to the accused is to be drawn from that process having been followed. 92. I have already given myself a direction regarding the need to determine each charge with regard to the evidence relevant to it and addressed the aspect of why the complainants would lie. I have dealt with the complaint evidence. 93. The Crown has reminded me of s 165 Evidence Act to which I should refer. It has application the Crown said in respect of the evidence led by way of the statement provided by the complainant's deceased mother. 94. Section 165 Evidence Act 1995 provides for the approach to be taken in relation to what might be unreliable evidence. Subs (1) provides inclusively for various kinds of evidence that might be unreliable. Paragraph (c) refers to evidence of reliability which may be affected by age, ill health, injury, or the like. Of course the regrettable fact is that the witness is now deceased. 95. There is no jury for which subs (2) provides, and in which case if a party requests the judge is to give a warning that the evidence might be unreliable and why. Subs (3) provides that the judge need not comply with that provision if there are good reasons for not doing so. No particular form of words is required by force of subs (4). 96. Although there is no jury and this is a judge alone trial the law requires that I instruct myself in terms of the principles upon which a jury would be instructed and it is in this case appropriate, I accept, to warn myself that bearing in mind that this is a statement made by a witness who was not called to give sworn evidence and who was not cross-examined but whose statement was presented by consent in accordance with s 65 Evidence Act 1995 there might be aspects of unreliability in at least some parts of it. 97. Moreover, there was, as I recall it, some inconsistency between the circumstances there described as to how RH came forth with her complaint and what was described elsewhere in the evidence, and the person who could have put to rest any confusion in that regard was the complainant's father who, when he presented in court to give evidence, was in significant measure I would find belligerent. He appeared to be burdened by some limitations consistent with someone who had misused substances, whether alcohol or other substances, and he could not be said to be a witness upon whom the Court could rely with any confidence. 98. However, bringing to bear those matters it does not seem to me that the representations in the statement provided by EH should not be accepted, at least to the limited extent that they provide further information regarding the exposure of the misconduct by that complainant to which the statement speaks, and certainly the content of the statement does not discourage me from accepting the credibility and reliability of that complainant, RH. 99. Section 293A Criminal Procedure Act is advanced by the Crown as a matter upon which I should direct. This section by force of subs (1) applies in the trial of a person for prescribed sexual offences, which these are, where the judge after hearing submissions considers that there is evidence to suggest a difference in the complainant's account that might be relevant to her truthfulness and reliability. I have already spoken in terms of this provision and what I should bring to bear as set forth in s 293A(2). 100. Section 294 I am asked to consider dealing with the question of delay in complaint and I have already referred to that. I have dealt with tendency evidence. I have dealt with context evidence and I have dealt with the coincidence evidence relative to counts 6 and 7 only. I have dealt with character evidence and I have dealt with the manner in which the representations by the accused in the interview which I find to have been untruthful should be brought to account in accordance with the High Court in Zoneff v The Queen (2000) 200 CLR 234. 101. I am also reminded of the nature of the evidence given by Lawrence Mayer as an expert in these proceedings. There was very little challenge to what he had to say by the accused or criticism by the Crown. His role is, I find, relatively neutral and he did no more than provide the assistance to the Court that one is entitled to have from an expert witness. The direction one would give includes the nature of an expert witness, how the evidence an expert witness gives differs from witnesses speaking as to the facts, the impact upon the opinion offered by an expert witness which depends upon the reliability and the accuracy of the material used in their assessment, and the evidence that they offer, and that the expert evidence is before the Court as part of the material upon which the Crown relies speaking to the pornographic material found upon and referenced in the iPad and the USBs. There has been no challenge to any of what Mr Mayer had to say although there were submissions made about how one might approach that and the significance of the evidence that he gave which I have brought to account. 102. The submissions advanced by Mr Conditsis regarding directions that ought to be given are more expansive with arguments as to why I should attend those matters. They largely deal the same more succinct points offered by the Crown in their document. As with the Crown, he referred to the decision in R v Markuleski (2001) 52 NSWLR 82, to Liberato v The Queen 1985 159 CLR 507 which requires the Court to determine the question of guilt to the standard of beyond reasonable doubt upon the evidence presented by the prosecution and not upon the basis of a preference for one side or the other. The Murray direction was addressed Murray (1987) 11 NSWLR 12 and as I have noted s 294AA Criminal Procedure Act 1986 and Yuen v R [2015] NSWCCA 117. 103. I have already indicated that I have taken care to assess the evidence given by each of these complainants bearing in mind the criticisms made and implied in cross‑examination and advanced in submissions on behalf of the accused. The directions required included the direction about character which I have already addressed. FINDINGS AND DECISIONS 1. I turn now to my findings, some of which I have already articulated in the course of the reference to submissions made rejecting those that were contended by Mr Conditsis and accepting those advanced by the Crown for the reasons given. 2. I found each of these complainants to be credible and accurate regarding the essential matters that the Crown must prove if it was to succeed in its prosecution. 3. With regard to RH I note that she was aged 22, approaching her 23rd birthday at the time she gave evidence, and thus was a young adult describing events according to her recollection of perceptions and observations when she was aged from 10 to 14 years. I accept that there were opportunities to disclose this misconduct which she did not exploit but the history of the events described by the complainant and as is available from the evidence of others who lived through that period provide a sound basis to accept explanations why she did not immediately go forward with the allegations or shortly after the misconduct occurred. 4. She was a young girl removed from her birth parents to whom she wanted to be restored but with the ever present control through 'Life Without Barriers' who were concerned, as asserted I would say by Mr Fitzsummons, to see that she remain with the foster carers, according to their perception that she was better in that location than in the more challenging environment, as they perceived it, of the home of her birth parents. 5. There was in the course of the conduct of the trial argument advanced from time to time about the wish of these young children to leave the Maguire household and it is the fact that there were challenges noted by agencies, including the police, 'Life Without Barriers' and Family and Community Services for the children in their birth parents' home. One of the matters that I find supporting the Crown case is that it would seem to me implausible if circumstances were as idyllic as the accused and his wife would have the Court accept, and odd that these children would want to go back into an environment such as was shown by the evidence upon which Mr Conditsis made his arguments, in the home of the birth parents. 6. It was suggested that these children wanted more freedom than the controls in the Maguire household allowed but it seems to this Court that there are questions over the nature of the care that was provided in this fostering arrangement and it is more consistent with the Crown case that these children wanted to be away from there to return to live with their parents. 7. It was said on behalf of the accused that the allegations by RH and AH were lies. The accused denied explicitly any misconduct, but as I noted the sophistication that would be required of someone, such as RH, to construct false allegations in the terms presented, in the sequence in which they are said to have occurred and in the circumstances surrounding them as described would have been extraordinary. 8. Moreover, I find it improbable that the conduct upon which count 6 is framed, the insertion of sweets into her vagina as directed by the accused and which the accused then ate, and the pornographic images of women inserting food items into their vagina as found in his possession, occurred coincidentally, and the comparison between the allegation and the images described provide significant support for the contention that the accused engaged upon the conduct with the complainant and that he had a sexual attraction to the insertion of food in that fashion. Similar comments apply regarding the coincidence evidence relevant to count 7 and the shampoo bottle allegation. 9. AH in my assessment presented almost in a childlike fashion although she has grown to young adulthood. I found her to be less sophisticated than her sister RH but I accept what the Crown has said about the evidence she gave, and I find her to have been a credible and reliable witness. 10. Similarly with SC-A. She was a young girl who had her challenges at the point when she came into the care of the accused and his wife but I found her, for the reasons advanced by the Crown, to be a credible and reliable witness in respect of the matters essential to the prosecution of the offences to which she spoke. She clearly demonstrated a more significant level of maturity in court compared or contrasted with her presentation at the time of her interview by the JIRT team. 11. I am satisfied beyond reasonable doubt that the accused committed these offences in each case. I have not overlooked regarding count 9 that there is no evidence of what was to be seen on the camera after he took photographs of the child's genitalia as she described but I am satisfied that the only rational inference to draw from the circumstances which I find established is that he did so produce child abuse material consistent with s 91H and s 91FB respectively of the Crimes Act 1900. 12. Accordingly, I find the accused is guilty of count 1 that between 1 September 2009 and 30 June 2012 at Wyee in the State of New South Wales he produced child pornography. 13. I find the accused guilty of count 2 that between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales, being an adult, he engaged in conduct that exposed RH, a child under the age of 14 years, namely 10, 11 or 12 years of age, to indecent material with the intention of making it easy to procure RH for unlawful sexual activity with him. 14. I find the accused guilty of count 3 that between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales the accused had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely 10, 11 or 12 years in circumstances of aggravation, namely at the time of the offence RH was under his authority. 15. I find the accused guilty of count 4 that between 1 January 2010 and 31 December 2011 at Wyee in the State of New South Wales the accused had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely 10, 11 or 12 years in circumstances of aggravation namely at the time of the offence RH was under his authority. 16. I find the accused guilty of count 5 that he between 1 January 2010 and 30 June 2012 at Wyee in the State of New South Wales had sexual intercourse with RH, a child above the age of 10 years and under the age of 14 years, namely 10, 11 12 or 13 years in circumstances of aggravation namely at the time of the offence RH was under his authority. 17. I find the accused guilty of count 6 that he between 1 January 2010 and 6 June 2013 at Wyee in the State of New South Wales incited RH, a child then under the age of 16 years, namely 10, 11 12, 13 or 14 years to commit an act of indecency towards him in circumstances of aggravation namely at the time of the offence RH was under his authority. 18. I find the accused guilty of count 7 that he between 1 January 2010 and 6 June 2013 at Wyee in the State of New South Wales incited RH, a child then under the age of 16 years, namely 10, 11 12, 13 or 14 years to commit an act of indecency towards him in circumstances of aggravation namely at the time of the offence RH was under his authority. 19. I find the accused guilty of count 8 that he between 1 January 2011 and 6 June 2013 at Wyee in the State of New South Wales had sexual intercourse with RH, a child above the age of 10 years and under the age of 16 years, namely 11 12, 13 or 14 years in circumstances of aggravation namely at the time of the offending RH was under his authority. 20. I find the accused guilty of count 9 that he between 1 January 2011 and 31 December 2011 at Wyee in the State of New South Wales produced child abuse material. 21. I find the accused guilty of count 10 that he between 1 June 2012 and 30 June 2013 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 10 or 11 years in circumstances of aggravation namely that at the time of the offence AH was under his authority. 22. I find the accused guilty of count 11 that he between 1 June 2012 and 30 June 2013 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 10 or 11 years in circumstances of aggravation namely that at the time of the offence AH was under his authority. 23. I find the accused guilty of count 12 that he between 5 June 2014 and 30 June 2015 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years in circumstances of aggravation namely that at the time of the offence AH was under his authority. 24. I find the accused guilty of count 13 that he between 5 June 2014 and 30 June 2015 at Wyee in the State of New South Wales had sexual intercourse with AH, a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years in circumstances of aggravation namely that at the time of the offence AH was under his authority. 25. I find the accused guilty of count 14 that he between 2 November 2015 and 18 August 2017 at Wyee in the State of New South Wales being an adult engaged in conduct that exposed SC-A, a child under the age of 14, namely 8 or 9 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with him. 26. I find the accused guilty of count 15 that between 2 November 2015 and 18 August 2017 at Wyee in the State of New South Wales he committed an act of indecency towards SC-A, a person then under the age of 10 years namely 8 or 9 years. Annexure A [1] ANNEXURE "A" RH DEFENCE DOT POINT NOTES OF EVIDENCE 17 NOVEMBER – Evidence in Chief – as to specific evidence relating to counts - see Crown particulars document Had pretty good relationship with PM – opened up to each other 42.15Relationship with Ray pretty good until he started touching me and taking photos – about 1 year and 3-6 months after moved in – 18 months = December 2009 – nearly 11yo – count 1 - 42 Count 2 – probably 6 months after count 1 – 44.35 Submission: So now definitely 11 yo – that is 2 years after June 2008 = June 2010 – RH turned 11 in March 2010 and consistent with RH saying she was in year 5 [at 44.50] As to count 2 – RH said PM was out at the shops and didn't know where sisters were - 45.11 Accused would take her to shed and play video pornography 45.21 Accused not touch RH first time showed porn because she was uncomfortable – but did next time - a few days after second time - 47.16 After shed rebuilt – penile vagina sex in shed but not pornos AND sex only happened twice after rebuild of shed - 48.10 Submission: to be contrasted with her later evidence in cross examination Warning When these things happening in shed asked where was Pauline Maguire [PM] – RH said not sure what PM was doing but inside the house – 48.32 Submission: Would appear to be extreme risk taking by accused, as not only could PM have walked in but one or more of the other children AND to be contrasted with what RH said later in XXN at 272.25 – taken to para 9 of her 25 June 2018 statement – exhibit 4 – when she told police that whenever Ray did it in the shed PM was not home; and RH then gave evidence that what she had told police was wrong Submission: Amongst all other submissions about RH – this just compounds her reliability/credit issues – on the defence case - and is yet another troubling aspect of her evidence – one or two corrections may be explainable but not the extent of corrections throughout her evidence Warning Topic of whether accused ejaculated - 48.46 and then this exchange: Q. When you say until he was finished, what do you mean? A. After he ejaculated. Q. You have a memory of him ejaculating. A. Yes. Q. On how many occasions do you have that memory? So, you've told us about a few. Did he ejaculate on every occasion from your memory or you're not sure? A. No, just - I'm not sure how many times but not for every occasion. Q. Just sometimes. A. Yes. Submission: Contra RH's statement to police saying she didn't know if he ejaculated in her – at para 8 of 25 June 2018 statement – evidence in chief made up on the run – likely, RH anticipated would have to explain whether accused did or did not ejaculate; and For a sexual predator of children [on the Crown case] it is remarkable that there is such scant evidence of ejaculation by the accused and none from AH or SCA Warning Count 5 – kitchen – dining room chair – "Wasn't up for it" – RH statement to police on 25 June 2018 at paragraph 11 – 50.30 Submission: Strange comment by RH in context of the allegations and see XXN at 328 on 23 November – when asked what she meant – she said she just wanted to go to sleep Said "things" would happen every third week roughly - 58.48 BUT later in XXN taken to para 10 of her 25 June 2018 statement when she said Ray would have sex with her at least 1-2 times each week - 272 – 273; and RH then said that was wrong and she wasn't sure – then at 273.5 this exchange: Q. So, the statement, "Ray had sex with me on at least roughly one to two times every week", is that a true statement? A. At the time I was given the statement, I couldn't remember how many times. Q. Did you just think, "Well, I'll just say that, then. Roughly one to two times every week"? A. No. Q. Why did you say that? A. 'Cause I know it happened a lot, but I couldn't remember how much. Q. In this sentence, the first sentence when you use the words "Ray had sex with me", what did you mean by the words "Ray had sex with me"? Were you meaning penile-vaginal sexual intercourse or were you meaning something else broader than that? A. Penis in the vagina, yes. Q. What is your evidence now as to how often Ray would do this to you? I'm talking penile vaginal intercourse. A. I still can't remember how - how many times. Q. Are you able to say whether it was once or twice a year or more than that or less than that? A. More than that. Q. More than five times a year or less? A. I'm not sure. Submission: Extraordinary change in evidence – as at 2 pw = over 750 times a year down to possibly less than 5 per year – in combination with other credit/reliability matters must have an irreparable adverse credit/reliability impact Warning AND further XXN on 23 November at 325-327 as to para 10 – where RH said "it always happened in the back shed except for one occasion in the kitchen" – and taken to her oral evidence that there were at least 3 other occasions of sex in house other than the shed being, dining room chair, coffee table upstairs and rumpus room upstairs AND her response was "Yes, I wasn't thinking at the time" – 327.42 Submission: Must come a point where excusing complainant for inaccuracies because of her age [at time of alleged offending] or for any other reason crosses the line and causes unfairness to the accused Warning Didn't tell anyone whilst living at the house because Ray asked her not to and that it was his and her little secret – said this in relation to the very first incident when accused took photos - "You can't tell anyone. This is mine and your secret." - 59.10 Note: This topic is taken up in cross examination as to whether she knew what the accused was doing was wrong – see later. Asked twice how it made her feel and both times said "unsure" – 59.25 First person told was HF – in her house in Bonnells Bay – was at start of year 8 [so nearly 14 years old in 2013 – which would make it whilst she was living at the house!!!! AND 2 years BEFORE AH left!!!] – only told her that Ray touched her – HF told her to tell someone and said didn't want to - 60.5 And confirmed in XXN that HF first person told – 134.35 Told PT – but only by text or Messenger message and was at JB's house – not sure how started talking about – but sent text and PT said to tell an adult – and not speak to PT about it again!!! Text was between 6-12 months after leaving Ray and PM – so had to be between about December 2013 – June 2014!!! – hence AH remained in that house for between a further 12 – 18 months!!! 62.18 – 63.47 And in XXN said she was already living with mum and dad when told PT – at 135.26 Submission: Contrary evidence of PT – that complaint was made before RH told her she was going to leave and that that was said on the day RH left and later that day – Ray and PM came to her house but she didn't want to say where RH was!!! Warning When asked why not tell an adult said: At that time, I just didn't want to. Didn't feel the need to – 63.28 Submission: Implausible evidence given AH still in the house As to telling JB – thinks it was before told PT – when asked why tell him said: "JB wanted to start being sexual with me, and I just - after that didn't really feel like doing it then" and was 16 when told him - 64.30 – 65.4 Submission: May explain why made false complaint to JB In XXN on 23 November RH said she believed she had told JB first because he was in the room when she told [texted] PT – 335 In XXN on 23 November at 335 – 336 - RH confirmed what she told police in her statement at paragraph 18 that she believed she told JB in March 2015 when she was 16yo Submission: At this time her sister AH of whom RH said she cared for, looked out for and loved – was still living in the house with the accused and for reasons already expressed the "position" of RH as to not telling an adult is highly implausible Warning Next person RH told was her sister JH – said she thought it was in 2018 – made complaint to JH following an argument with JH and that's when she told JH – couldn't remember what JH said 65.10 – 66 But on the evidence of RH herself at 66-67 [see below] it was the day before Bidner came to the house on 27 January 2017 because the timeline was telling JH, then RH went to the park and called her mother and came back to the house and had a conversation and the following day – SC Bidner came to the house – so had to have been 2017 – on RH's evidence Submission: Note firstly, what JH told Bidner [see Agreed Facts at page 3 relating to Police attendance at home of RH on 27 January 2017 – part of exhibit B] as to JH telling police RH told her when RH was about 14 RH told her that the accused was doing "wrong things" Note secondly, JH's evidence in chief at 637.45 - that RH made the complaint to her to her in "early 2015" At that time RH was about to turn 16 and AH was still living with the accused Alleged complaint evidence and how it came about is important and I concerning that there is so much confusion as to the lead-up and when it was that it was said Again, the circumstances [above and see below] provide a possible explanation as to why false complaints to JH and her mother may have been made apart from truth as to why complaint to JH Warning That feeds into RH telling her mother – why? Because she didn't want JH to tell her – so she called her mother - 66.10 However, in cross examination on 23 November at 340 – 341 – it was suggested to RH that she had told Mr Haggarty that she told her parents because she had a fight with JB and he threatened to tell her parents and that's why she told her mother – however, RH said she had no memory of saying that to Mr Haggarty – to be contrasted against the evidence [notes] of Mr Haggarty. Submission: Again, regardless of which explanation as to why she told her mother, it provides a platform or reason for RH making that complaint other than the truth of the complaint Warning As to why RH didn't want parents to know – said mum keeps her cool but dad yells and goes on about stuff - 66.5 – 67.1 Submission: Why not before 26 January 2017 pull mum aside -EVER – and tell her - for AH's sake? SC Bidner visit – he came the next day – mum and dad called him – clearly on any view RH was reluctant – RH told him didn't want to make a statement – didn't say much - 67 Submission: On defence case – complaint to HF – lead up related to HF having issues and for whatever reason RH fabricated the complaint – then with PT discussing their respective histories – with JB – had a reason to make false complaint – to do with their relationship – with JH – also a reason – arguing – led to parents finding out – yet still reluctant Another possible explanation for reluctance – because RH knew it was false and didn't want to go through 'the whole court case thing" [67.45] RH's continued reluctance is a two-way street – the Crown says – not ready to speak about it due to the trauma, however, another view is that, she kept putting it off because there was no truth to the allegations Warning Chief Resumed on 18 November Bathroom incident – just the once – 74.11 Coffee table between 6 months to 1 year before left house – 74 RH's "Pravite" document – part of exhibit 4 - thinks created it a couple of months after she told mother – because not comfortable speaking to a male police officer - 76.25 – 77 – Submission: RH did not ask to speak with a female police officer. Possible explanation for creating her own document is that she could write down the false allegations and remember them Gave the Pravite document to police about 6 months after creating it – to a lady detective – was on a USB – thinks was at Cassilis police station – 84.9 Submission: One is entitled to the view that that Pravite document would be accurate or close to it but the evidence establishes otherwise – see below Warning RH said didn't speak to another police officer after speaking with Dan but before handing over the USB - 85.25 But RH did – she soke with SC Simone Bottrill on 24 March 2017 - see Detective Bottrill's evidence on 24 November: Met with RH and her father at Cassilis Police Station on 24 March 2017 - 376 Two separate conversations – first with father and RH and second just with RH alone – 377 Taken to her statement to police dated 10 September 2018 – 380 Taken to entries created by her in COPS Event E381639992 [cited at 378.49] – and she agreed accurate – 381 Taken to and quoted from her own entries in COPS Event and agreed it recorded: "The victim stated that the incidents occurred over a year, when she was 12 to 13 years old." 382.38 Then this exchange at 383.5: Q. That's pretty plain, what it means, isn't it? A. What exactly are you asking? Q. I'm asking you that - what I'm suggesting to you is the words, "The victim stated that the incidents occurred over a year" - "over a year" meaning the incidents complained about took place over a period of one year. That's what the first part of the sentence reads, doesn't it? A. Yeah. Yes. Q. You would say that back when you made this note on 29 March 2017, you've already agreed, likely you had your diary notes in front of you. Correct? A. Likely, yes. Q. You would say, wouldn't you, that you were - that you understood on 29 March 2017 the importance of being accurate with your recording of events, you knew that? A. Yes. Q. When you read the whole sentence in its entirety, still the first sentence, what you recorded in effect is that the victim - and the victim is R. Correct? A. Yes. Q. The victim in effect told you that the incidents relating to this accused occurred over a period of one year, when she was 12 to 13 years old. Correct? A. That's just what I've written, so it appears that way, yes. Again, I didn't - I only speak to her briefly. And in cross examination on 24 November at 357 – RH denied telling detective Bottrill that "the incidents occurred over a year when she was 12 or 13 years old" Submission: At best for the Crown case – it speaks to the unreliability of RH's evidence as to her age/time period when the alleged offending began and the period over which the offending took place; particularly having regard to her own 'Pravite" document being part of exhibit 4 which relevantly reads: "It started when I was around 12 or 13….." Warning 25 June 2018 statement taken at her home – felt it time to talk so if other kids came into his care it wouldn't happen to them - 85.43 Submission: Implausible – this is 3 years after AH left and 10 months after SCA and siblings removed – notwithstanding RH was 19yo by then – if that's how she felt in 2018 - it must be concerning that she didn't tell an adult before telling parents in January 2017 and particularly her evidence that she didn't think she needed to, notwithstanding that AH was still living with the accused Warning CROSS EXAMINATION COMMENCED AT 86.37 ON 18 NOVEMBER Read her police statements twice the day before – 87.43 Pravite document took her "days" to complete and hadn't spoken to anyone – she had to think back and wanted it in words she was happy with – didn't show it or read it out to anyone - 90.20 – 91.7 Relationship with Parents and Siblings and Uncle Robert and Aunty Michelle – 91-94 Close to parents as at 2007 – then apart and then close again when back with them – 91-92 Got on well with uncle and aunty – Robert and Michelle Whilst living with Ray and PM – person closest to was PM – next person closest was JH - 94.1 Whole time living with Ray and PM parents wanted her and siblings to come home - 94.41 Knowing to contact police – 98-99 Said only knew to contact police in year 6 – 2011 when 12 yo Submission: very unlikely to be true having regard to police call outs to the home – 16 Occasions between 2001 and 2007 and her father giving evidence that the girls were always home when police came to the house at 721.21; AND RH's ROI with JIRT in 2007 [referred to in more detail below] AND demonstrates a consciousness to distance herself as to her knowledge of contacting police in respect of wrong-doing Warning Knowledge as to Wrong to touch private parts – 100.5 Knew from primary school it was wrong – 100.5 Agreed wanted to live with parents even when relationship with Ray was good – 102.23 RH said not know it was wrong when Ray took photos of her vagina and showed them to her 102.44 – NOR – did she know it was wrong when he started touching her Submission: Highly implausible and a conscious effort to explain away why no early complaint Warning Agreed when knew it was wrong was in primary school 103.1 Submission: Hence the importance of when the offending started – because by 2010 she is 11 and in year 5 and in 2012 she is year 6 and is 12 – given her evidence as to when it started – that is – 1 year and 3-6 months – would have been between October 2009 and January 2010 – when aged 10 but 3 months off turning 11 – implausible didn't know by then – having regard to her history Later in XXN – RH said again - not think anything wrong when he took photos 202.15 Taken to her statement of 25 June 2018 and her own Private document and put at 12 or 13 she would have known wrong – but she said it happened before she knew it was wrong, but in any event confident she would have known wrong in year 6 [when she would have turned 12!] 205.20 Submission: RH changing her evidence on the run – started in chief – in an attempt to explain why there was no early complaint Warning Then taken to para 6 of her 25 June 2018 statement – penile/vaginal intercourse over bed – and agreed having regard to para 5 that she would have been 12 or 13 when para 6 occurred and would have known wrong – BUT she then walked away from that as well and suggested she told the detective that she wasn't sure of the dates – and confirmed she did not know it was wrong!!! 206.33 – 207 Submission: Implausible and evidence on the run with the intention to explain away no complaint Warning The taken to para 7 of her 25 June 2018 statement and RH said – basically the stated age was wrong – and that it should have been in reference to the old shed – 207-210 And again later in cross examination taken to this statement - at para 7 for context at 261.30 - as to porn in the shed when about 13 or 14 – and then to para 8 about ejaculation – and not know if ejaculated in her or not – she said she would have used the word 'cummed" – 262.34 263.12 – asked if Ray ever used a condom and said "didn't know" – then later she qualified to say she didn't see him put one on Submission: Implausible – given the allegations and frequency of the offending that she would not know and similarly, that she would not know if he had ejaculated at all [when she made her statement], let alone in her Warning 265.40 – asked her how she knew he ejaculated and she said – he pulled out and ejaculated and didn't know "how it all went" – then she went on to say she only remembered one time – he pulled out and it went all over him – she confirmed she only saw him ejaculate once – 267.35 Submission: The evidence on ejaculation is very odd – very scarce evidence of ejaculation and vague – particularly in the context of an alleged sexual predator who abused three children over a period of about 7-8 years Why Not tell Parents/Siblings/PM/Zoey and MF As to why not tell parents when know wrong said: "I'm not sure" – 103.8 – Submission: That was a poor response having regard to the totality of the evidence Warning Didn't tell JH – because whilst close not that close – 103 Submission: Implausible – not to tell her older sister of being sexually abused and particularly, when RH had left and AH was still living with the accused and PM Didn't tell PM because not comfortable in doing so – 103 When asked why kept secret when she knew it was wrong – RH said "it was more to the point" she didn't want to tell anyone – didn't feel comfortable telling "them" notwithstanding that she always loved, cared about and looked out for AH - 103.29 – Submission: Extraordinary that that would be a priority over the protection of her sister AH Warning After AH left – AH and RH had daily contact - 106.45 Didn't trust Zoey enough to tell her 109.16 Mark Fitzsummons – knew who he was – when asked if good guy – she said didn't really know him – 109 Submission: This evidence is not credible having regard to the amount of contact he had with H children between 2008 and 2013 when RH left and suggests an attempt to distance herself from him and knowing what's coming as to her telling him she was happy ETC Agreed MF would enquire as to her happiness and any problems – but then said she would sort of lie to MF – 110 Submission: Warning Took her to MF visit on 21 December 2011 – and suggested she told him she was really happy living with Ray and PM and said "not sure" - 114.17 and at 115.50 – 116.1 – said don't remember Then RH said remembered saying "happy" but not "really happy" Submission: Disingenuous Warning Agreed she told MF more than once she was happy living there – 116 When told MF happy and no concerns – agreed that was true - 118.40 Submission: Having regard to MF's evidence as to meetings December 2011 and 31 January 2012 – and her knowledge as to wrong by the end of 2011 and early 2012 - it is simply inconceivable that she would have said these things had she been abused by accused Warning Agreed that when all that happened to her as told to Crown - JH may have been living in the house 112.30 Said left to get away from what Ray was doing and wanted to live with mum and dad – 112 RH said she had no complaint to make against PM – and agreed PM did not physically hurt her - 113.17 Submission: This evidence and the evidence of AH supports the child fantasies of SCA and Riley AND irreparably damages the credit of RH and making such allegations to MF and DOCS and to Zoey via messages Flies in the face of the evidence – and concerning heavy involvement by Farnham as to her telling MF that that was what RH had said to her at or about the time of RH leaving placement – according to MF – but disowned by RH - and when RH was asked as to her telling her mother that that happened, she said she didn't remember – 113-114 Where this ended up speak very poorly of RH's credit – clearly, RH's evidence was that it didn't happen and she sought to distance herself from her own allegations whether she had initially been put up to it by her mother or not Warning AS to Pressure from parents for AH to come home and wanting AH to come Home – Messenger Messages with Zoey Starts at 119 - 129 Exhibit 1 – as to RH seeing if she can stay at Ray and Pauline's on 13 June 2013 [1 week after she had "run-away"] - "fighting" to get AH back; as to Pauline "hurt me" and telling Zoey to tell 'everyone' – including Ray – "I love them" – 127.10 AND further in XXN – she said not sure if told anyone that PM had hurt her in any way – 160.38 Submission: Significantly and adversely impacts on RH's credit That she would even contemplate going to stay at accused's home within one week of "running away" because she had been sexually abused That they would be "fighting" to get AH back and she still says nothing about her own abuse Noting her earlier evidence of Pauline never having hurt her and nothing against Pauline but in these messages saying PM did hurt her and instead of admitting untrue and was to facilitate returning home – all she could say was she didn't recall and that the messages did not assist her memory Highly implausible she would have sent her 'love' to the accused if the allegations were true AND What an opportunity to tell Zoey the truth as to abuse if it were true! Warning Concerns About AH when RH Left Starts at 130.19 - 133 RH said she did have concerns – but told no-one! She agreed she wasn't interested to know if happening to AH – AND even during the weeks AH was home from 13 November 2014 – RH was still not interested and didn't ask: Submission: Highly implausible Warning Adjourned to Friday 19 November Cross Examination Re-Commenced on 19 November Not Asking to Stay behind or to go with Pauline Started at 144.25 It was put to RH that she never said to Pauline when Ray taking her to netball or anywhere – that she didn't want to go and she said not that she could recall – then said PM was looking after the other 2 girls and she agreed that she had assumed PM was busy and then this exchange: Q. It wasn't that important enough to you to say to Pauline, "I don't want to go with Ray on his own"? A. No. Submission: These answers cannot fly in the face of the alleged abuse and her not having memory of ever having asked – not once Warning Ray's Mother and Cooranbong Said not all the time would whole family go to see her – AND only took her once on her own and that just so happened to be the occasion the lollies incident occurred – 148 And also note later XXN - 163 as to RH not try to avoid going with Ray in the car alone when by then she had been touched – AND at 163.26 – said it may have been her idea!!! But at the same time she said she was concerned he was going to touch her – and explained by saying she wanted to see his mother – BUT – never saw her again after she left placement – 164.30 and 165.14 Submission: Breathtaking admission having regard to her allegations followed by a substantial contradiction and completely illogical statement Warning And further cross examination on 23 November at 331 on topic of whether she asked to go with or stay with Pauline – as said to police at para 16 of exhibit 4 – her statement dated 25 June 2018 – and asked as to occasions of say netball why not ask Pauline to stay behind or go with her and she said – "A. 'Cause it was up to them as to who took who where" and then this exchange: Q. Yes, but there was nothing to stop you from at least saying something Pauline trying to have Pauline come with you or have Pauline take you. You could have said that or inquired with Pauline about that, couldn't you? A. I could have, yes. Q. Why didn't you? A. As I said, it was up to them, it's not really my place to ask if they can change their - whatever they wanted to do. And as to being alone in the car with the accused when he drove to [or from] his mother's home at Cooranbong [count XXX] – there was this exchange at 333: Q. All right. In any event, I'll just ask you now of your own memory for a moment. Did you ask Pauline if you could stay - sorry, if she could come with you and Ray? A. No. Q. And why didn't you? A. Not sure why I didn't ask. Submission: This completely and utterly contradicts the evidence of JH on this point Bearing in mind the evidence of Pauline Maguire – that RH never asked to go with her or to stay behind or express not want to go with Ray and in combination with RH's own evidence – the court would reject her oral evidence as to what she told police in her statements being true and correct, particularly, on this topic as to what she said to police at para 16 of her statement AND It follows that such a finding must significantly and adversely impact upon the credit of RH Warning And when asked whether netball incident had occurred said not sure –164.8 - but on Crown case the netball was before Cooranbong Computers Starts at 148.50 Computer desk downstairs in lounge room in corner – hard drive on the floor – and agreed it was there before and after the extensions [150.10] – not password protected and access to internet and everyone could use – agreed would go on net and search and no-one looking over her shoulder When asked about USB's she mentioned Ray's computer upstairs – said no USB's downstairs but there were near his computer upstairs – many of them – and she could have looked at them if wanted - 154.50 – 155.5 - and she said she thinks it was a flat screen [upstairs] – 151 – she didn't remember any other computers in the house before extensions – 153 – she said she did not have access to Ray's computer – 154 – as well as computer down stairs and Ray's upstairs – she also – had her own laptop – 154.22 Wi-Fi was password protected but everyone had it [contra evidence of AH] – no rule preventing her from using Ray's computer – same password for Wi-Fi – 154.44 – Submission: This evidence contradicts AH's evidence in suggesting there was limited internet use and as to restricted access to computers The point being that one or more of the USB's containing adult pornography may have been inadvertently [or otherwise] viewed by one or more of the complainants and discussed [RH and AH and then AH and SCA] which would explain their references to seeing pornography on "devices" [more evidence as to USBs below] RH Lead up to and Leaving on 6 June 2013 – Conversations with MF around then Her conversation with MF on 4 June 2013 – two days before she leaves the house of accused - 156.5 Didn't remember saying very happy to MF but may have said happy – when asked why she would say that days before she left she said: "Because I didn't open up to him, I just - that's what I say" and then agreed to lying to MF – 156 Submission: Disingenuous and Very difficult for the accused – an admission by RH as to saying something that is significantly inconsistent with her allegations and it is "batted away" by simply saying she lied to MF because she chose not to open up to him However, that version flies in the face of the apparent competence, good nature, diligence and observations of MF and indeed – reality Warning Further conversation with MF on 14 June 2013 – 8 days after she left placement – when she couldn't explain difference between what she had said to MF on 4 June and 14 June – what had changed? And all that she said to MF is she wanted to come home and live with her parents - 157 – 159 Submission: Again a perfect opportunity to disclose to MF the abuse but in reality there was nothing to disclose Warning 231.46 - On 22 November in further XXN took RH back to MF going to school on 14 June 2013 – and avoiding contact because didn't want to speak with him – in her mind she thought he had her best interests at heart – taken to 10.30am on 14 June meeting at school and things said – and she kept repeating she couldn't remember any of it – 232 – but agreed as to him asking what had changed her mind and that she most likely said she wanted to live with her parents – and denied telling Mark she had a fight with PM and that she told him she didn't remember why but it had something to do with Wi-fi – 234.5 – 234 - she couldn't remember MF asking her why she didn't report the phone incident – there was then legal argument and evidence resumed at 237 – back to the topic of the meeting on 14 June – and eded at 238 – RH denied any knowledge of the meeting Submission: Court would not accept she had no memory of any of the things said – she was clearly obfuscating because what she had told MF was inconsistent with her allegations and she knew it Demonstrates a pattern of behaviour – when caught out or area of cross examination is difficult – deny or say can't recall – example – her viewing of her 2007 JIRT ROI and saying it didn't assist her memory – dealt with below Very damaging to her credit Warning 238 -239 – couldn't remember sending a text to MF blaming him for ruining her love life – nor his response and I also took her to other conversations with MF – all denied but MF gave evidence as to his notes about all of them Putting to RH of Going with Ray and Pauline to See Ray's Mother in 2016 Initially denied but then conceded possible Submission: Example of shifting position - 161 – 162 How Old was RH When Photos Taken Contrary to ALL her statements and what she said to Bidner and to Bottrill – now said it occurred BEFORE she turned 11yo – but then said not confident – 178.40 Submission: Refer to Agreed Facts – Bidner – part of exhibit B; Evidence of SC Bottrill and her statement of 25 June 2018 – exhibit 4 at para 5 - and her Private document – also exhibit 4 Incontrovertible evidence she was 12-13 yo when it started – so had to be 2011 – 2012 – being approx. 3-4 years after moving into care What therefore does one make of the oral evidence as to no later than January 2010 – just a mistake or embellishment or fabrication to attempt to explain lack of delay? Whichever was it is considered, the credit of RH is severely adversely affected Warning Pornos and Old TV and Cassette Player in the Shed Starts at 185 Confirmed old TV in shed and video cassette player – but nothing as to where it came from AND pornos less than 5 times and always in shed – she thought one cassette player in the house Submission: Implausible - only one cassette player and it alternated on these occasions between the shed and the house and no-one saw anything? Agreed to there being lots of kids' videos in house and watching them 188.20 Taken to Exhibit E – Private Document Starts at 188.35 Agreed had as much time as needed to get it right and not rushed Read the first part as to 'around 12 or 13' and further – and reminded her of her evidence that offending began 1 year and 3-6 months after started living there – and RH then said not sure of the dates Submission: RH Private document - not just a case of RH being unsure of the dates but rather, much more difficult to remember time frames if fabricated AND as previously submitted – in her oral evidence RH was trying to explain why no earlier complaint to anyone and she responded by reducing her previously stated age Warning At 190 - given her earlier evidence that porn videos only in the shed – RH was pressed as to why she wrote in the Private document that he would take her upstairs to show her porn and she said "I'm not sure" – after very long pause – and AGREED – what said to police about this was WRONG 190.9 Submission: This is extraordinary and similar to her telling MF and Zoey that Pauline had hurt her arm and then saying no memory of it Again – demonstrates a patter of behaviour as articulated at 77 above Warning At 191 – 192 – relevant parts of the Private document were read out to her Submission: Although RH said she was not trying to convey that the accused took her multiple times to his mothers' house but there cannot be any doubt she was RH was taken to further parts of her PRIVATE document – when she was clearly suggesting he took her to his mother's house on multiple occasions and touched her multiple times in the car - whereas her oral evidence is that he only took her on her own once and that was the only occasion he had touched her on such a journey One has to bear in mind her own evidence that the Private document was created over a number of days and with care At best if it was a mistake and not deliberate falsehood – however it is yet another mistake amongst many Warning The RH taken to her first statement 25 June 2018 – Exhibit 4 Starts at 196.35 Taken to para 5 and SD cards – and she said he was upstairs and she saw the same [vagina] photos on his computer upstairs – agreed NOT in any statement and said for the very first time – RH said she was heading up the stairs and saw them from near the top of the stairs - 197 – 201 Submission: YH must be very cautious to accept evidence volunteered for the very first time 8 years after she left the house and not in any statement to police or even her own document AND Note evidence AH that she could not see his computer until the top of the stairs – and given she stayed in the house for 2 years after AH left – they would have been about the same age when looking at his computer upstairs Warning Taken to last sentence of para 5 – "This is mine and your secret. You can't tell anyone" – and agreed she was encouraged to be open and honest - 201.40 Adjourned to Monday 22 November Zoey FB Posts After dealing with some other matters – referred to above – at 241 – RH was taken to her to her FB posts re Zoey – exhibit 2 – at 242 and agreed they were after she had left placement – but it was whilst AH still living there – 243 – she also agreed at 244 she was speaking her mind to Zoey – and at 245 RH was taken to her post Pauline "hurting me" and asked why she would say that and said didn't know Submission: As with other areas identified – RH was caught out making false allegations Her denials as to saying to anyone or not knowing if she said to anyone that Pauline had hurt her are completely inconsistent with what she had posted in exhibit 2 and texted in exhibit 1 and had told MF Simply not possible to reconcile and only conclusion is that she was caught out telling lies Warning Then at 245.10 this exchange: Q. When you said the words, or commented, "and I was sick and trying to live up to the expectations when I want to be me," you see those words? A. Yes. Q. What did you mean by those words? A. I was meant to say I was sick of trying to live up to their expectations, but again I don't remember what it was about. Q. But when you left Ray and Pauline were you sick of trying to live up to their expectations? A. I don't remember. Submission: RH avoided saying what those expectations were and then said the post didn't make much sense It was suggested she was being untruthful The above exchange may provide some insight as to why RH left and why these allegations were fabricated and possibly – feed into AH's "silver spoon" document in the pink P&O USB being exhibit 13 RH then went on to give evidence as to the post that she was sick of thigs being kept from her – including as to her mum having a massive heart attack – 246 Further, that evidence provides a possible explanation for her anger and frustration – and taking it out on accused by making false allegations At 247 – RH agreed she was expressing upset in FB posts – speaking her mind – and that her mum's heart attack was in 2009 and she agreed she still angry about in 2013 OLD TV in Shed and Photo of Shed Shown – exhibit 3 -photos 1 and 2 – old TV and said the one in shed looked something like that – 252.24 Then taken to photo 3 of exhibit 3 – shed – identified Daniel – Zoey's partner – suggested to her March 2013 as to state – she didn't remember – but she agreed shed always looked "pretty packed" – and that Ray was a hoarder – that where she would be taken can't be seen in photo as it is more out the back – suggested to her the back of shed looks similar and she said "probably a bit less stuff" – 253 – 254 255 – although photo 3 of exhibit 3 was new shed she agreed old shed had stuff in it and full of stuff like photo 256 - Denied that children were not allowed in there without an adult [ contra evidence of PM, AH and JH] 258.12 – Roller door would stay open when she was touched 261.15 – Agreed when touched in the shed or showed porn in shed – Ray didn't carry down video cassette player or TV Singlet – Para 11 of 25 June 2018 Statement and Oral evidence Starts at 282 She said not positive but pretty sure – then put to her he never owned or wore any singlets and she disagreed – But note uncontradicted evidence of Zoey Adjourned to Tuesday 23 November 298.15 – defence application to XXN RH as to her 2007 JIRT ROI under s.293 (6) as to her stated knowledge she did not know what the accused was doing to her before she got to year 6 [12yo] was wrong AND HH allowed application at 319.35 – at that stage limited to asking whether RH had any memory of the ROI and what she told police [in 2007]. 347 – 353 – RH was asked about her 2007 JIRT ROI – asked about it or telling mother - but had no memory – then legal discussion following for which leave was given to play certain parts of the audio of the 2007 JIRT ROI to RH to assist with her memory. Matter adjourned to Wednesday 24 November 359.20 – Asked RH again about her 21 June 2007 JIRT ROI – MFI 11 - and played the following times to the court – start to 1.07'; 7.27' to 19.52; and 21.40 to 23 Accepted it was her on screen – 360 Said brought back her memory of speaking to the lady – 360.45 But went on to say she has no memory of anything said – 361-362 Annexure b ANNEXURE "B" AH DEFENCE DOT POINTS NOTES OF EVIDENCE In Chief – Commenced on 24 November – T 390 - as to specific evidence relating to counts - see Crown particulars document Back to Mum and Dad's T 391.40 – because Ray was sexually assaulting her And much later in chief at T 426.20 – she said because he was assaulting her just about every week - Asked age when it Started T 391.46 - Said "9 or 10" [would have been 2010-2011 – whilst RH there] AND – she was taken back to this much later in chief and asked again – earliest memory and AH again said she was about 9 – when he started fingering her T 408.5 Asked about Very First Incident – Count 10 – Crown Case Statement at 69-72 Where offence occurred – "My room" T 392.1 What happened – not long after got home from school – Pauline Maguire [PM] had taken her sister to netball training – got changed – thinks – doing homework on bed – Ray came in – told her to lay down on bed – pulled pants and undies down and he put his fingers inside her vagina – T 392.10 How long – couple of minutes Said anything – only when done "Don't tell Pauline" Was in primary school at the time Didn't know what Year was in but was "roughly 10' [would have been 2011] Asked who there – said PM, Ray, RH and her and that J had moved out [so had to be before June 2012] End T 392.50 Asked whether One Time or More – T 393.1 Said multiple times Said happened at least 1 per week – same thing – as above "He would get me in my room after school….." as above – T 393.11 And as to Ray saying anything – again – just don't tell Pauline Not remember him saying anything else Submission: So - the multiple times – at least one per week in her bedroom! An extraordinary amount of times to be further submitted upon later End 393.22 Asked about Any other Room in House T 393.27 – Count 11 Aged 11 or 12 Primary school Cornered me against bookshelves in dining room – told to spread legs – so did – he started "fingering me" Started playing clitoris and actually put fingers inside Asked if Ray said anything and she said "Not that I can remember" – T 394.4 Asked if she said anything – she said told him to Please stop but he didn't reply Asked what happened after couple of minutes and she said : "I'd had enough so I pushed him off and went to the park" – park for "roughly 1 hour" Living there at time – PM, Ray, me and RH Pauline out – taken RH to netball training – no-one else home Was "during the week" Asked how felt and said "extremely awkward and uncomfortable" Then this exchange at 395.7 Q. And when he said to you, don't tell Pauline, how did that make you feel? A. Like I couldn't tell anyone. End – T 395.8 Crown came back to it and asked who living there and said PM, Ray, me and RH – and JH had left by then Submission: So - had to be after June 2012 [when AH at least 11] T 399.3 And more questions at T 400.15+ - asked how long before she left house did dining room incident happen and she said '3-4 years before' [T 400.21] and was before SCA Submission: As AH left house in July 2015 – had to be between 2010-2011 But on that analysis – there is a problem because JH did not leave the house until June 2012 Even at an early stage there are concerns as to AH's reliability – not because she is not good with ages but because there is a fundamental problem with her evidence as to JH living there at the time Warning Asked about more Incidents with Accused – T 400.32 AH said "heaps" Asked if could remember next incident after the dining room and she said no "because mainly just the same thing happened each week" Submission: This sort of evidence was repeated by AH throughout her evidence On one view - if lying – easy to say that and to repeat almost precisely what occurred – after school, got home, got changed ………" Asked if anything accused did anything else T 400.47 – Count 13 Again spoke of her room – usual – getting home from school T 401.21 – asked who living there and said PM, Ray me and SCA and siblings [so as SCA and siblings there – has to be after June 2014] Was in Year 8 and about 6-12 months before left for good [year 8 was 2014 – see exhibit J] Got home and PM taken SCA and kids to dancing – got changed into normal clothes – think doing homework on the bed and Ray comes in – asks her to lay down on the bed – she lay down – he pulled pants and undies down and starts fingering her – T 401.35 [Submission: Compare to 392.12 – almost identical] Fingers in and out for a couple of minutes Then asked her to lay closer to the bed – so she did – he said "I'm gunna try something new" – that's when he pulled his pants down and put his penis in her vagina – penis – sort of erect before he put it in – for about a minute or so until she pushed him off Later at T 402.49 said could feel pain Asked if he said anything whilst penis in vagina and he said "Don't tell Pauline" T 402.18 During it she said "I don't feel comfortable can we stop" – he just continued until she pushed him off – T 402.24 Grabbed undies and pants and went to skate park where friends were – for half hour to an hour – came home – and Pauline, Ray and 3 girls there and got ready for dancing – Submission: very similar repeats Not tell Pauline because Ray had told her not to and Crown asked when he said that, how did she feel and she said like she "couldn't tell anyone" – T 402.46 Submission: Unclear as to why AH felt she could not tell anyone if only mentioned Pauline – particularly if she was strictly following his instructions Asked about anything else that happened in other part of house – T 405.20 Then said Lounge Room [Submission: first time reference to sex in the lounge room – as opposed to telling police she watched porn with him in lounge room but no sex - not in any of AH statements to police of sex in lounge room and see cross examination on this topic] Warning Said PM had taken SCA and girls dancing – AH was on lounge watching TV – Ray came in – said lie down on lounge and he fingered her again – and again – for a couple of minutes – and again – she went to the park – she asked him to stop – he said no And at T406.8 she said it happened twice [Submission: new evidence as to lounge room sex – now said twice – see later cross examination] She said she was in primary school – AND that SCSA and siblings living there at the time [T 406.16] Submission: AH could not have been in primary school because as at June 2014 [when SCA started to live in the house] AH was about to turn 13 and was in year 8 in High School – see exhibit J And AH then said the other time was before that time Asked About anything Upstairs – Context Evidence – CCS 67-68 T 406.31 – showed her pornos in lounge on his computer – she was about 11 Just with Ray T 407.9 – so far as she knew it was just on the internet Came about by accident one day The he would call her up and say he had something to show them Happened about 15 times Last time was about 1 month before she left Submission: No mention of sexual activity when showed porn Asked about any other incidents in any other area of the house – AND Leading of Evidence as to Photos – Count 9 T 407.26 AH said there were not other areas of the house where sex occurred - Submission: Noteworthy omission by AH Warning Legal argument and Crown permitted to ask questions about other conduct by accused and Crown permitted to do so at T 410.5 410.34 At T 415.20 made application under s. 32 to revive her memory – legal argument At 419.7 – Crown renewed application – and at 420.33 – AH read onto the record her paragraph 8 of second statement – Ray taking photos – Count 9 Even after reading AH said it hardly revived her memory – T 423.30 She read paragraph 8 to herself and still couldn't give evidence about it After more argument at T 425.35 – AH was allowed to read her paragraph 8 and she did so – and she then said it was true Warning Relationship with Pauline and Ray – T 407.30 She said "Perfect" with PM Always got on with PM – never really anything wrong Ray – ok first couple of years [June 2010 – 3 years before RH left] – because he "started fingering me and all that" T 407.43 Notwithstanding AH Evidence as to no other parts of the House – Asked about very first time – Spare Room AH said what she had before that she was 'about 9' and he was fingering me – T 408.5 Then AH started talking about an incident in the spare room – which she later clarified as it used to be her bedroom She said it was before the first time in the bedroom Similar version of events to bedroom – got home from school – Pauline out and he came in and he started fingering her She said it was marked as the 'spare room' but it used to be her room Ended at 408.38 Crown asking as to whether she told anyone When Crown asked AH as to why she didn't tell anyone – she said for the first time that Ray told her not to tell anyone and added that he told her that every time he would do something to her which – T 410.35-410.37 AND in XXN at T 429.20 – she said that he had told her a couple of times not to tell anyone – which is very different to "every time" Submission: This is the first time that AH said that the accused had told her not to tell anyone as it is not in any of her statements to police – see later cross examination and as she was being led through the counts and as to what the accused had said – it was always "Don't tell Pauline" The beginning of AH making up evidence on the run and particularly when she perceived questioning that did not assist her position/evidence Warning Telling Mum and Dad T 411.5 Told mum and mum told dad – told mum "earlier" 2017 Submission: Peculiar and concerning that AH told parents before Bidner meeting and then told Bidner that she had never been sexually assaulted – particularly as RH had just told Bidner – in AH's presence – that the accused had sexually assaulted her [RH] Warning Was at home when told mum – Couldn't recall the words she spoke AH said felt awkward because wasn't supposed to tell anyone – because Ray had told her not to Remembers telling mum he had intercourse with her and he used to lay with her "and that" Mum said why not tell us sooner and she said because Ray told us not to She could not recall anything else being said Speaking to Police T 412.36 About 1 week or so after telling mum Police – two males - came to house and said the matter was out of their hands and they couldn't do anything about it and that's when matter went to Tolhurst She said one police officer was SC Bear Submission: AH is clearly talking about meeting with SC Bear on 4 August 2017 - no cognition issues Told them sexual intercourse with accused and that was about it Mum and dad both present when speaking to police Police said couldn't do anything and it had to go higher She said she then went to Tolhurst at Muswelbrook police station between 1 week to 1 month later – with her case worker Renee Rogers End – T 414.11 And that's when she provided statements to police – T 414.13 AH not tell Police everything – because she felt extremely uncomfortable talking to a male Submission: Whilst understandable she may have felt uncomfortable, it seems AH wanted her complaint progressed and this officer was assisting her Second statement more detail because speaking to female Rebecca Harrison End – T 414.50 Case Worker MF and why not tell him T 426.41 T 427.10 – perceived threat by MF that parents would be arrested for kidnapping if not go back or she would be placed with other carers [Many more conversations with MF later in cross examination] Shown her statement Envelope C – her own statement of 21 March 2019 No memory of giving it to police – marked MFI 14 Cross Examination As to AH Leaving on 13 November 2014 and Conversations with Mark - T 429 T 430 – Asked about AH's options of going to another family and why she chose to go back to Ray – she said because she didn't want to start over with a new family – she said she went back to Ray's because she thought he might have stopped after she had run away – T 431.9 Submission: Taken on its own that evidence may on one view be reasonable, however, having regard to the totality of the evidence in relation to AH, particularly in cross examination – it is not credible Got on well with Mark and he a good guy and he was interested in her came around about 1 a month and wanted the best for her – talk about lots of things with him – issues at school – things bothering her ETC – and he wouldn't get angry – T 431.40 T 431.50 And he would ask if she happy in placement – agreed she told him she was happy and very happy in placement T 432.50 – AH asked when you told Mark happy in placement was it true – AH said was true 'most of the time' Asked her what she meant by "most of the time" – and she said – "I wasn't always happy" T 433.9 T 437.11 – Mark always asked if AH was happy T 437.37 – asked when told Mark happy was that true – said 'No' Submission: Inconsistent with her own evidence and convenient answer The AH in response to questioning said it was true for first couple of years and then not true – T 437.40 – T 437.45 AND see later Cross Examination regarding further MF conversations Continued Cross Examination – Friday 26 November Relationships and why not tell – T 451-453 Mother, Father, Sisters, Uncle Robert, Auntie Michelle, Klyde Morris, Close with parents but relationship with parents grew even stronger over years – would confide Didn't tell parents because told not to by Ray Didn't fear father – didn't recall fearing father - 452 Would speak to her father about her feelings Both supportive of her - 453 Said didn't tell either of them – only reason - because told not to – 452 Sisters- 45 Close – confide ETC We just stuck together – 453.39 As with parents – only reason – not tell JH because Ray asked her not to – 454.20 Even closer with R – RH – 454.30 Didn't tell RH because not allowed and didn't want her to worry -455.14 J not living there when any offences occurred Said when Ray started to touch her JH not living in the house – 454.8 Never Occurred to AH that When Ray doing it to her – also doing it to JH 455.27 Not occur to AH to ask RH if she being touched Submission: This evidence is implausible on various levels. Firstly, that she did not "cry out" to her sister – to say something. Secondly, to want to know – surely there must have been some curiosity as to whether the accused was also touching RH? Warning Robert H and Michelle H 455.35 Liked staying with them Camping – holidays ETC – right up to when she left She liked them Good relationship with them Didn't tell them because – not allowed – no other reason – 457 Submission: Again – implausible that AH felt she could tell her uncle and aunty with whom she was spending significant times on holidays and at each other's house ETC Warning Klyde and Lee Morris – not recall much – but alright with females 457-458 Not alright with males since Ray stated touching her – denied having anything to do with your father – 458 Relationship with Ray and PM and Activities – 458.40 – 462.35 Agreed as to did RH – encouraged good diet – schooling and homework – various activities Dancing same as Physical culture, every Tuesday but when close to competition would be Tuesday and Thursday – all year around "basically" – started dance at 12yo [2013+] 460.44 Netball – from age of 8 until left aged 14 – started once per week but when left was twice per week + matchday every Saturday Swimming – at start but didn't keep it up – did it for 2-3 years 460.50 – 461.13 Karate – Started karate when 7 or 8 – stopped she said because she accidentally kicked the teacher She agreed she was taken to see health professionals She agreed she was encouraged to speak mind – to be honest When sisters played netball – their training on different days – "I'm pretty sure" – 460.5 RH played netball until RH left - and later in XXN – said that PM would usually take RH to netball [466.37] Ray would take one week and PM the other week – expect for dance – PM would take – 462.30 Thinks in relation to sisters' activities – mainly PM would take them Rules in House – mobile phones and contact parents 462.40-464.25 Was rules in house re homework, chores and tidying room Agreed got mobile phones but said would have 1 pw phone contact with parents before that but she stopped it because only 1 pw and she would get upset – 463 Didn't remember saying parents would tell her to say she didn't have to do homework As to chores – she said she always did Disagreed her relationship with Ray and PM changed after got mobile – 464.25 Asking PM to go with her – 464.32-465.40 Said did ask PM and denied she didn't Was upset when PM said no - 465.24 Not tell PM because Ray told her not to – no other reason – 465.34 Submission: This evidence is to be contrasted against the evidence of PM and also JH PM's evidence was to the effect that there were no occasions she could recollect where the children asked to go with her and not stay with the accused or express they didn't want to go with the accused JH's evidence was on the defence case – convenient to RH only asking not to go with the accused or being made to do so – no mention of AH [by JH] SCA and Siblings Moving in – 466.7 Offending continued after they moved in Sometimes K-L and I-L in the house Did not agree that K-L and I-L needed a lot of attention – 466.30 Agreed Ray's job to cook dinner Back Shed – 467.40-469.50 Said no shed until Ray built it – so she had no memory of an old shed Her memory of shed is when she 8 or 9 [2009 – 2010] She said she rollerbladed in there – a little room that Ray had cleared Put to her it was only when shed was rebuilt – prior to stuff being put back in there – she denied because she could only remember "the new shed" – 468.27 Submission: This evidence speaks to AH's unreliability when balance against all the other evidence Agreed rollerblading was in the new shed Shown envelope C – became exhibit 3 – 4 photos Recognised Zoey's partner in third photo – outside shed Suggested photo was in March 2013 – she said she didn't recall it being that messy – 469.7 Disagreed that shed always looked like that – photo 3 – because she didn't recall it looking that messy Submission: Again this evidence speak to AH's unreliability Agreed there was a rule when that messy [as per photo] that kids not go in there – she agreed but then said he cleaned it up - 469.27 - .30 Submission: AH was confused as to a stage when new shed rebuilt when for short time not much stuff in it and contrast the evidence of PM, Zoey McPhee and Klyde Morris Small Box TV Blowing Up and Flat Screens – 470-472.4 Shown photos – her 8th birthday and JH and lounge room Agreed photo of JH could have been 2009 Asked whether she remembered it and she said 'sort of' Initially said no memory of it having stopped working – 470.45 No memory of flat screen in that space – wall unit in dining room – then disagreed as couldn't remember – 471.4 There was then this exchange: Q. You just can't remember a flatscreen TV there. A. Yeah, because I'm pretty sure after that TV blew up, there was no TV in the dining room. Submission: AH was clearly either recollecting or agreeing with the earlier suggestion that the old TV had blown up Computer – Upstairs – Downstairs – Wi-Fi and passwords 472 Initially said could not recall computer downstairs prior to upstairs being built – 472.19 Upstairs extensions – lounge room – where the children did scrap booking and Ray's computer Agreed everyone could use computer downstairs 472.50 Submission: consistent with what RH said and internet access As well as computer downstairs could also use her phone, iPad and tablet 473 I suggested if there was a wifi password she had it – and she said toward the end she did – meaning 6 months before she left but not at beginning – 473.50 – 474.4 Submission: RH evidence was clear on the use of internet and access without restrictions – of course at commencement of placement AH was only 7 years old and there may have been some restrictions for her in early days To the extent AH tried to minimise access to devices or use of the internet – it speaks to her knowing the relevance of their access to net and use of devices And later in cross examination– this exchange – T 476.1-476.10 Q. In relation to wi‑fi in the house, the wi‑fi did have a password. You agree with that. A. Yes. Q. But you had the password. Do you agree with that. A. Yes. Q. Therefore, you could access the internet on any device that you were using that could physically access the internet. Correct? A. Yes. Couldn't recall if USB's on computer desk downstairs As to computer upstairs – was on computer desk – screen facing out towards top of stairs – towards the lounge room – 474.27 Could not see computer screen any point whilst walking up the stairs but "thinks" could see screen when at top of the stairs – but then said too long ago and can't remember whether could see from top of stairs – followed by saying she thinks you could see the screen from there - 474.40 - 475.10 Flat screen with hard drive on floor Could not recall if USB's on that computer desk – 475.19 But later in cross examination AH confirmed she saw USB's on Ray and Pauline's computer upstairs – 595.23 Pretty sure Ray and Pauline could access that computer – she never used it Kids told if wanted to use computer – use your own devices – 476.36 Many times saw Ray using computer upstairs – not see him using anything else 476.45 Suggested Ray never secretive about computer – said sometimes he would tell them to go downstairs - 477.15 Submission: Instructive observation that AH was never asked by accused to see any alleged naked photos and there is no evidence from any complainant that accused asked any of them to come up the stairs to view porn on that computer on the desk mentioned by AH [and RH] Also casts doubt on AH's evidence that she viewed porn on accused's computer in lounge room – given her evidence that she did not see him using any other device other than the computer on the desk which had a flat screen and a hard drive on the floor Also instructive that the accused – portrayed as a sexual deviant and child abuser – did not call up AH and RH jointly to view any porn USB's Laying Around There were some that had stored photos on them – not remember where saw then – had holiday photos on them - 477.31 Canberra "Sort of" remembers her and siblings going to Canberra with Ray and Pauline - 478.17 Taken back to Conversations with Mark – 478.30 Agreed MF would come over about once a month over the years Agreed over the years she always told MF she was happy – and she said it was true before touching but not true after touching - 478.47 – 479.7 Mark was her only case worker whilst living with Ray and Pauline – 480.42 Submission: As submitted with RH it is very difficult for an accused when a critical witness such as AH admits to lying on an important issue such as telling her case worked over a number of years that she was happy living with the accused and did not have any concerns – which of course, would be significantly inconsistent with her allegations - but then says that wasn't true AND because of the "history" of the complainant she is "forgiven" or given more "leeway" than another critical witness Warning Taken to her statement dated 16 August 2017 – MFI 13 – 479.45 Ren Rogers witnessed her signature and was her case worker at the time – MF ceased as case worker about 6 months after AH leaving Ray and Pauline's – then someone else before Ren Rogers 480.49 – 481.6 Rogers drove AH to police station As to whether Rogers was sitting in – initially said didn't think so but said not sure – 481.45 BUT changed later in XXN: At 546.22 – 546.34 – conceded Rogers was there as her support person and DID sit in Submission: This is of course consistent with the evidence of Ren Rogers who said she did sit in on the interview Rogers had been AH's case worker for a couple of months before this – 480.3 Asked AH as to her relationship with Rogers as at 16 August 2017 – didn't answer that question and curiously said "don't talk to Ren anymore" 482.3 But agreed when OIC took her statement on 16 August 2017 her relationship with Ms Rogers was "alright" and that she was "nice" – 482.18 Asked as to AH having said she was not comfortable talking to a male police officer – she said "not really" more comfortable even with Rogers there 482.30 Submission: Self-serving - knowing she would be criticised as to very significant omissions in AH's first statement Warning Taken to para 5 of that statement AND it was read out to her "R moved out…….it was about this time….RM started to sexually assault me…" - 483.4 Agreed - when RH moved out AH was about 12 – 483.9 When asked whether the words "it was about this time…." was correct she said: A. Yes. Yes. But he started a little bit before that. That's why I said "about that time". 483.15 Submission: Disingenuous on part of AH Warning Agreed Rogers in room when signed but said couldn't recall if read it or was read to her BUT agreed words "It was about this time that Ray Maguire started to sexually assault me," – were her words – pretty sure – 483.27 When asked what she meant by words "about this time" she said: A. Like, a couple of years before. I just wasn't comfortable going right through my brain back then. 483.31 Submission: Implausible and demonstrates contrived answers when in trouble Warning Then this exchange at 484.5: Q. That's all right. I withdraw it. Did you say to anyone that it was after R left that Ray started to sexually assault you? A. No, it was just before. Submission: When AH responds and is fluent without thinking – she often was caught out – now – not only "before" or "about this time" but "just before" AND Not on any reasonable view could the words "about this time" or even the modified "just before" be interpreted as going back to when AH was 9 – that is 2 years before RH left – back to July 2010 If AH was not lying and is only mistaken then it demonstrates she is unreliable as to any chronology but it also must go to her credit because she has not conceded she may have been wrong as to being 9 when the offending commenced Alternatively, AH was lying, in which case her credit is significantly adversely affected Warning Didn't know if she had told anyone that it started AFTER RH had left – 484.10 484.30 - Reminded AH of her evidence as to Ray offending – in chief – as to J not living in the house and reminded her that J moved on out in June 2012 – when AH was about to turn 11 [July] Submission: This evidence has nothing to do with age per se, but rather relevant to events – such as AH's evidence that it was "about the time" that RH had left placement Now, this is another circumstance, that is, J was not living in the house So, it had to be after June 2012 – when AH was about to turn 11 AH's credit – not just her reliability - is irreparably damaged Warning 485.10 – It was put to AH in cross examination that her evidence as to being 9yo when it started was false and the Crown objected although it was answered in the negative Submission: On the evidence the only reasonable conclusion is that AH's evidence as to being 9yo was false Adjourned from Friday 26 November to Monday 29 November [JB, HF, PT and Anna Marie Cable Interposed Monday 29 November at 11.43am – T 488.31] Cross Examination of AH Resumed Monday 29 November at T 534 Referred to her meeting on 4 August 2017 with SC Bear – put to her she told him that it all started when in year 6 – said couldn't remember what she told him - 534.35 – then legal argument – 534 – 545 AH said she had a "rough" memory of meeting with SC Bear – didn't recall telling him it started in 2013 - 545.27 – 545.31 Submission: Convenient for her to say she doesn't remember when in a tight spot – as did RH with her 2007 ROI amongst other things Suggested similar to AH saying she did not remember putting any contact onto or accessing the pink P&O USB Asked her about meeting with Mr Haggerty from LWB and female FACS worker on the same day saw SC Bear – she stated she had no memory - 545.35 AH was asked as to whether the timing of RH leaving placement was helpful to work out when "it" started and she said no because it started before that - 545.46 – Submission: Again – conscious self-serving evidence – as to "it" starting in 2013 or after RH left [after June 2013] or at about that time – the court would note: Told SC Bear on 4 August 2017 – the sexual intercourse/assaults started when she was in year 6 in 2013 ROI with Haggerty – also on 4 August – inference that AH said or agreed that RH leaving was relevant as to when it started Her own statement to Tolhurst 16 November 2017 at para 5 – as to the sexual assaults starting "at about this time" – namely - RH leaving when AH was about 12 – we know that RH left in June 2013 when in fact AH was one month off turning 12 and finally Her own handwritten document – part of MFI 14 – "It all started when I was 12 years old…." – whilst the first line has her own amendment which initially appears to have "9 or 10" – the point is not the age(s) as such but the event – that event being "about the time" that RH left – that is perfectly consistent with AH being 12 or about to turn 12yo The compelling conclusion is that on her own evidence – AH was about 12 when the sexual assaults started Such a conclusion is problematic for the Crown case Warning Again - taken to para 5 of MFI 13 – and read out to her – as to "at or about this time RM started to sexually assault me" – meant at or about the time RH moved out - 546.10 Taken to her evidence from previous week [at 483.24] – when there was this exchange - at T 547.15: "Q. When you say the words 'It was about this time', meaning about the time that RH moved out, what did you mean by, 'About this time'? A. Like, a couple of years before, I just wasn't comfortable going through my brain back then. Asked what she meant by "I wasn't comfortable……" and AH said she just wanted to put it behind her – asked whether she meant she was answering quickly and she said yes – asked not giving attention to accuracy of what she was saying and she said couldn't be expected to be accurate about her age – put to her not about her age but her reference to RH moving out relied on to assist when it started AND she agreed - 548.5 There was what it submitted is non-sensical and self-serving answer: Q. And it is correct to say, on your evidence, that Ray started to touch you about the time RH moved out; correct? A. Well, yes, but it started beforehand. Taken to MFI 14 [which includes her handwritten document AND her second statement dated 21 March 2019] – "It all started when I was 12 years old" – AH created the document after speaking with Tolhurst – her handwritten statement was made a couple for weeks before her 2019 statement [549.39] – AH agreed no-one rushing her to make her own statement – she said she "couldn't pinpoint all the times and how old I was and that, though" – made statement within 2 days – she wrote it to base her second statement on – she made corrections to it – 550.37 Submission: AH's own handwritten statement should not be looked at in isolation – but together with what she said to SC Bear, Mr Haggerty and to OIC Tolhurst At 550.37 – read out to her – her handwritten statement from the start – down to "put his hands down my pants and undies ETC" – and AH agreed she meant to say she was 12 when Ray started to touch her At 551.15 – taken to - 13 lines down: "And then, when I was 13 to 14 years old, I got home from school, et cetera – and she agreed was referring to another incident – then when asked if when she said she was 12 was correct – she said no Submission: Implausible – and won't concede anything against interests regardless as to how implausible At 551.40 - then taken to typed statement of 21 March 2019 – when asked how it came about said: A. Well, Simon called me and told me that the evidence wasn't strong enough and I had to do another one. And at end of XXN – 622 – thought had to add stuff to make it stronger Submission: If this was said – at best it was inappropriate by the OIC – and the OIC's evidence on this topic is not to his credit and he more or less said he "would have" said something to that effect Having regard to the glaring omissions in AH's statement dated 16 August 2017 – there is a real risk that she felt that she had to embellish or fabricate evidence to have the accused charged – whether that was independent of anyone or after speaking with RH – no-one will ever know Warning At 554.45 – AH was taken back to her notes and scratch out – first line "9 or 10" – no-one helped her write it out – no-one with her when she wrote it out – didn't show it to anyone before police – no-one else made scratching out changes – said crossed out because couldn't remember how old she was – when suggested she was happy with the change to 12 – the answer wasn't really responsive to the question and said didn't know she had given her handwritten statement to police until reminded about it by detective Harrison "the other week" - 555.29 – 555.50 Submission: This witness was far more sophisticated than first appeared – when should have given a simple answer to the Q as to whether she was happy with the change from 9-10 to 12 or not – she DIDN"T answer the Q – she deflected her answer Submission: At 556.5 – 556.12 – and 557.14 - extraordinary and non-sensical evidence – reversing chronology of alleged events and even clearer at 556.26 when said no photos before fingering Warning Taken to third and fourth line of her handwritten statement – pants being pulled down – and asked if photos taken of her by Ray had already occurred and AH said NO Submission: This of course is completely inconsistent with para 8 of her 21 March 2019 statement [see cross examination] – when she said she was "about 10" when photos were taken AND her only references to digital penetration [at para 7 – she said she was 11 or 12 AND at para 9 of the same statement, she said she was 13-14 AND in her handwritten statement she said she was 12 AND of course at para 5 of her first statement she said she was "about 12" when the sexual assaults started AND note CCS at para 65 – photos taken of her when she was 10 This evidence has nothing to do with age – but sequence of events and goes to the heart of AH's credit and reliability Warning At 556.17 – AH was asked what did she mean when she said that "It all started when I was 12" – and she said she meant when it all started happening it was before 12!!! Submission: Non-sensical and Disingenuous Warning At 556.40 – 557.5 - taken to para 8 of her 21 March 2019 statement and read "Ray used to take photographs of me. I recall when I was about 10 years old, I got home from school" [she read para 8 to herself] – and it was put to her that Ray never took any photos of her when she was 10 and her answer was "As far as I remember yes he did" Submission: There are so many qualifications to AH's evidence [as with RH] – that even if every credit issue was decided in her favour, her unreliability is such that a court could not accept her evidence as to the allegations Warning 557.48 – "Don't tell Pauline" AH was taken to her evidence the prior week at 391.50 – and read it to her – which related to count 10 – being in her bedroom after school when accused came in and pulled down her pants and undies and digitally penetrated AH AH was also taken to her evidence at the top of page 393 – to events of a general nature when he would do those things Then AH was taken to her evidence at 393.27 – in relation to count 11 – dining room – bookshelves – digital penetration and at 394.3 when asked by the Crown whether the accused had said anything – she said 'no' and then as to what happened and that she pushed Ray off – agreed he bigger and stronger and he did nothing [Submission: Is this plausible?] But then AH was taken to Crown questions at top of page 394 – when asked how she felt when Ray was doing these things and she said "extremely awkward and uncomfortable" and then asked why she felt that way and taken to this exchange with Crown: Q. Then you were asked this question, "And when he said to you, don't tell Pauline, how did that make you feel?" You said, "Like I couldn't tell anyone". The at 560.33 when in cross examination AH was asked about that evidence - she said what she told Crown was truthful IAH was then asked why did she feel she couldn't tell anyone – she said: A. Because I was living with them at the time, and I didn't want to tell someone else just for them to find out, or for Pauline to find out that I would go and tell someone else over her AND when Crown didn't hear AH said: A. I felt like I couldn't tell Pauline then who was I supposed to tell, because I didn't tell Pauline, then I would just make her think, why couldn't I tell her? Submission: Contrary to earlier consideration she could not think in the abstract or would not be capable of analysis – her evidence is not credible It is implausible that AH would not say anything to anyone which could have brought an end to the sexual assaults because that person may have told Pauline and Pauline would be hurt not to have been told – because it would seem by inference that AH believed that Pauline would want to have been told It is equally implausible as to her evidence later in re-examination – that she didn't tell Pauline because she did not want to break-up Ray and Pauline Warning Matter Stood Over to Tuesday 30 November FURTHER CROSS EXAMINATION OF AH TUESDAY 30 NOVEMBER – 566 566 – 567.26 – AH taken back to her evidence in the afternoon of the prior day at 560.36 [as above] – and agreed she meant that she didn't want it to get back to Pauline that she told someone else – not her – then taken through her options as to who she could have told – didn't tell parents because didn't want to worry them – RH – didn't want her to know – JH – mates at school – dragging more people into it 567.31 – AH said that Ray's touching of her continued right up to the day before she left – with a similar narration - Ray came into her room – cornered her and started fingering her 568.5 – From the start of touching right up to when AH left in July 2015 – when she 14 – AH said she never told anyone because Ray had told her not to: Submission: Highly implausible when she knew it was wrong Warning 568.15 – AH said she knew it was wrong – from the first couple of times he was doing it – said was in year 4 at the time [10 years of age] – then this exchange: Q. Well, if you knew it was wrong, why did you think it was okay to keep Ray's secret? A. Because I didn't - he told me not to tell anyone. Submission: Implausible response and no explanation as to why AH felt she had to keep the secret if she knew it was wrong – indeed – no reasonable explanation Warning 568.35 – when pressed AH said – because she didn't know what would happen AS to "Don't Tell Pauline" and her false evidence as to that being why couldn't tell anyone 569.35 – AH was taken back to the Tuesday before she left placement and again asked what happened and she said "the same as any other day" – cornered me in my room – and I pressed her and she said – got home after school - Pauline had taken SCA to dancing and ……..fingering ……AH was then cross examined as to the sameness of her allegations – at 570.15 – and put to her if make up a story and keep to it – easier to remember – Crown objection was overruled – 570.15 – 572.13 572.15 – 574.33 – AH was taken to her evidence in relation to counts 12 and 13 [fingering and then penile/vaginal intercourse – and went over the sameness – except for the penile/vaginal penetration – concluding in AH saying that Ray said "Don't tell Pauline" – and AH was reminded of her evidence to Crown at 402.39 – that when he said that - she felt like she couldn't tell anyone – reminded her that at that point in her evidence all that she had said that Ray had said was not to tell Pauline – and reminded her that her explanation for not telling anyone was that she didn't want Pauline to find out that way and that she felt she should have been more direct 574.35 – AH was then taken to her evidence at 429.10 – the start of XXN – when she said that Ray had told her not to tell anyone – when she said Ray had told her that "a couple of times" At 576.11 – I asked if she could remember any of those times and she said when he put his penis inside her – BUT – I reminded her of her evidence to Crown that he said "don't tell Pauline" Submission: An example of AH's unreliable evidence and providing a narrative that is easy to repeat 576.25 – went over why not told mother, father, JH, RH, uncle, aunty and Pauline and each time said because Ray told her not to – AND NO OTHER REASON – except as to RH added didn't want her to worry – 579.40 At 580.5 – 581.1 - then AH was taken to her statement MFI 13 – 16 November 2017 – taken to para 10 and asked her to read it to herself – she agreed earlier para's 7, 8 and 9 related to dining room incident when cornered against bookshelves – Para 10 was read out to her as to AH being told not to tell Pauline and she agreed – then taken to para 12 – and it was read out as follows: "I never told any of my friends what Ray had done to me. I didn't want anyone else to know. I didn't like thinking about it. Once I was able to move back in with mum and dad, I felt safe again." And AH agreed she didn't tell police that she didn't tell friends because Ray told her not to Submission – Yet another example of AH being caught out saying different things to different people 581.5 – 581.33 – AH was taken to MFI 14 – her handwritten note: "It all started when I was" there's a cross out "12 years old, Ray used to bribe me with lollies and chocolate to not tell Pauline about what he was doing to me, and there's a comma, I'll just pause there" – AH agreed what was read out was accurate – and AH was then reminded her of her evidence as to no pressure to make her own statement – that it was over 2 days and so on – and it was put to AH – Ray never told her not to tell anyone and Submission: AH gave a non-sensical answer: A. No, because he stopped..(not transcribable)..to pinpoint of the other statement 582.5 – 582.35 – AH was taken to the rest of MFI 14 – her statement to police 21 March 2019 – agreed much more detailed statement than her first statement – and taken to para 7 and agreed in relation to the allegation in para 7 [previously agreed 7, 8 and 9 related to count 11 – dining room and cornered against bookshelves] – that Ray said "Don't tell Pauline" – AND – looked at the rest of her detailed statement and agreed that nowhere does it say Ray told her not to tell anyone End of this Topic as to "Don't Tell Pauline" Submission: Simply implausible that her oral evidence – on the run – can be accepted against the mountain of evidence that she did not tell anyone before giving evidence that Ray had told her not to tell Evidence mounting against AH's credibility and reliability Warning Why not Disclose to Zoey McPhee? 582.47 – 583.25 - asked questions about Zoey and relationship ETC – agreed good relationship ETC – but didn't tell her because didn't want her to know Mark Fitzsummons – LWB 583.30 – 586 AH was taken to a meeting with MF at the accused's house on 21 December 2011 [DTB at Tab 23h at DTB page 337] and suggested she told MF she was happy and did not have any concerns – AH agreed that is what she said to MF AH was then taken to a meeting with MF on 31 January 2012 at the accused's home [DTB at Tab 23j at DTB page 348] and suggested to AH that she told MF she was happy to remain in placement and that it was "possible" she said to MF that she wanted to stay with Ray and Pauline – 584.45 AH was then taken to a further conversation [likely a phone conversation] with MF or someone at FACS on 13 November 2014 – being the first time she left placement for some weeks before returning to the home of the accused – see Agreed Facts being exhibit 2B at paragraphs 13 and 14 As to the conversation with MF or someone at FACS on 13 November [DTB at Tab 23p at page 398 of DTB] – and it was suggested she said to MF or someone at FACS that parents took her away from school – after school got in car with RH, JH and she thought, her dad and that she went on to tell MF or someone at FACS that she missed her sisters and that her parents would come and get her again with which she agreed – but AH didn't recall saying she wanted to stay with Ray and Pauline – 585-586 Submission: As previously submitted, it is implausible that AH would have been telling MF she was happy living with the accused and PM and that she did not have any concerns during the period when she was being sexually abused, which on her evidence dated back to at least 2010 Additionally - there is the evidence of MF, who was credible and appeared to be diligent and described himself as a prolific note taker and his evidence was to the effect had he reservations of what he was told he would have made a note about those reservations Warning Pink P&O USB AND USB's P&O Cruise – 1-2 years before RH left [consistent with evidence of PM] - put to AH that Ray got Pink USB and put photos on there – 588.30 and said "no" – didn't recall pink USB!! [588.40] Note – the evidence from PM that she bought a "pack" of some sort on the Cruise which contained a pink and blue USB and she gave the pink one to AH and the blue one to RH – that evidence was not challenged AH agreed Ray took lots of photos but doesn't know where he put them – 588 AH was shown pink USB on overhead projector – 589.30 AH said that seeing the pink USB it did not assist her memory – 589.43 AH said that she would "say so" – that is that Ray had photos on the pink USB because she can't recall seeing the USB that often – 589.45 AH saw the pink USB when PM bought it on the P&O cruise – 595.40 AH would use USB's for school work – she knew how to use - 595 AH confirmed she saw USB's on Ray and Pauline's computer upstairs – 595.23 AH denied taking any USB's and looking at content – 595 AH denied taking any of them and doing anything with them at all – 595 AH denied using the pink USB because not allowed and denied putting TV celebrities on it – 596.3 The content of the pink USB was shown to AH on the overhead projector and was able to identify many of the Home and Away and other celebrities - 596-599 AH denied deleting any content on the USB – 598.8 Showed more celebrities – to 599.24 – and she denied putting any of them on the USB Continued Cross Examination after Lunch when Defence learned of further Word document on the USB – 'Born with Silver Spoon in Your Mouth' on the USB saved to a file by the name of "Silver by AH' at 619 - 622 The content of the Word document was shown to AH – being – "born with a silver spoon in your mouth – born rich or in a wealthy family" – and that the file name to which the document was saved was 'Silver by AH' - but AH maintained she did not put any of the content on the USB and it was suggested to AH that she created the Word document but said "Not that I recall" and "Not that I can remember" – 620 - 621 Submission: It is very likely that AH did put the celebrity images and create the Word document on the USB and the court would find that way Assuming that finding or likelihood – AH could not have been mistaken If not mistaken then AH lied about it Why did AH lie about it? Why not just say – yes – I put those things on there? Possibly, she wanted to distance herself from the use of any USB? But more likely – there is something about the Word document – "Silver Spoon' – in respect of which she wanted to distance herself It is troubling that the reference to being born with a silver spoon in your mouth may have been a reference to the accused – although denied by AH Are the allegations fabricated by AH as some sort of perceived "payback" for the accused being born with a silver spoon in his mouth as possibly perceived by AH? As submitted in relation to RH and her being angry that "things" were being kept from her – such that she was still angry in 2013 in respect of not being told of her mothers' heart attack in 2009 If the court's conclusion is that AH was not being truthful – as the court is urged to find – unless the explanation for the untruths is as submitted what else could it be? Warning Leaving Ray and Pauline for Final Time - 599.26 AH and the accused and family went on a holiday to the Gold Coast only 3 weeks before for her AH's birthday in July 2015 – 599.26 AH agreed she was happy during the whole trip – 599.49 AH agreed she spoke with MF in the lead up to the trip about spending some time with her parents – 600.8 And then there was this exchange: Q. And you said to Mark: "I don't want to go with my parents, at the moment because I want to go on the holiday to Queensland," or words to that effect, correct? A. Yes. Submission: It is extraordinary and implausible that AH would have placed a trip to the Gold Coast above risking being sexually abused or even being in the company of her abuser. Warning At 600.20 – AH was taken to her conversation with MF on 1 July 2015 [MF's additional documents produced during the trial] – and she agreed she had told MF that she wanted to stay with Ray and Pauline and when asked why she said that to MF – she said because she didn't want to start over with a new foster family and it was suggested to AH that she had other options including that she could go into care with Sue Bugg or possibly go into care with her uncle and aunty, Robert and Michelle H but all were deflected by AH. Submission: Implausible and extraordinary that on 1 July she would want to stay in the home of her abuser, who on her evidence was continuing to abuse her until the day she left Warning 601.17 – Taken to meeting at her home at Cassilis with MF in late July 2015 [DTB at Tab 23v – page 416 of DTB]: AH showed MF where she was sleeping AH could not recall not being able to explain what had changed between telling him she was happy living with the accused and MF as recent as early July 2015 and the meeting in late July 2015 AH could not remember her yelling at MF and saying she had right to change her mind AH recalled speaking alone with MF on front verandah AH didn't recall MF saying to her "You've been telling me since January 2015 you wanted to stay in care and finish school" AH could not remember telling MF she was in fear of her parents and didn't want to go back with them AH could not recall MF saying "You know you've done the wrong thing here" When challenged as to why she didn't tell Mark about Ray abusing her when being challenged by MF about all these things – AH said she didn't want to upset Pauline 602.12 Submission The last answer suggests the things that were suggested to her [above] to which she replied she couldn't recall – she actually could recall MF's evidence as to this meeting is essentially in accordance with what was put to AH – as it was his notes which provided the source of the assertions It is implausible that when AH was being pressed by MF that she would not have told MF about the accused's abuse – if the allegations were true In combination with the other evidence as to AH telling MF that she had been happy living with the accused and PM and that she had no concerns, as late as early July 2015 – strongly suggest that the allegations are untrue Warning Text Messages Between AH and Pauline – and Dropping Stuff off at Cassilis in May 2016 - 602.21 AH couldn't recall texting/messaging PM – so AH was taken to the messages – 2 pages – May 2016 - MFI 18 - 602 – 603 AH was then taken to MFI 19 – 4 pages of messages - 7 October 2016 – 603 – 604.24 AS to the accused and PM dropping 'stuff' off at her home – AH agreed that it occurred on about 11 July 2016 when the whole family was there – that the accused and PM stayed for a couple of hours and were showed around the property by her family And AH agreed she gave the accused and PM a hug to greet them AH could not recall saying to Pauline "I should never have left" but importantly conceded she may have said it – and AGREED when Ray left that she gave him a hug but denied telling Ray she loved him – 604.35 – 606 Submission: Implausible these things would have occurred if AH's or RH's allegations were true Warning Speaking to Police [Bidner] on 27 January 2017 and Lead-Up to AH Statements Recalls local copper Dan – 606.20 Recalls Dan speaking with parents and R and AH and all present – and that RH made allegations against Ray – 606-607 Agreed AH told Dan she didn't know anything about R's allegations Submission: Would have been a perfect time for AH to support her sister if the allegations were true – by saying something like "yest it's true and he did it to me too" Warning AH agreed she told Dan she had not been touched - BUT told the court that denial wasn't true Submission: Self-serving evidence when caught out That she would deny the abuse at that time and in those circumstances because she didn't want to upset her parents further is implausible Warning 607.32 – AH said she didn't tell Dan because mum and dad were already worked up When asked why didn't ask to speak to Dan later – AH said her mum would have caught on Submission: Demonstrates AH had an answer for everything Would she have seriously considered at that time – that she could tell Dan but if she did her mother would catch on? Her evidence was being made up on the run Told mum couple of months after Dan – 608.6 AH Taken to SC Bear Conversation on 4 August – 608.15 She couldn't recall saying to him the sexual assaults started when she was 13 – however – SC Bear's evidence was clear as to what AH told him at her home on 4 August 2017 – the same day Mr Haggarty later attended her home – when he was taken to his statement and agreed relevantly it read: "I entered the premises and had a conversation with A where she disclosed to me that she had been sexually assaulted by Raymond Maguire, which started in 2013." [At 702.41] AH Taken to MFI 13 – Statement dated 16 August 2017 Taken to para 6 as to her saying it happened lots of times but recalled an incident when about 13 and then went on in paras 7, 8 and 9 to talk about count 11 – dining room and being cornered against bookshelves – and agreed this is the only incident that the statement talks about – 608-609 AH agreed that her statement made no mention of: Any photos taken of her by the accused Watching any porn with the accused Penile vaginal penetration Any fingering in lounge room – or any sex for that matter [in the lounge room] Didn't say to Tolhurst – there is stuff "I don't want to talk about" Didn't say to Tolhurst that she would provide more detail mater Agreed when talking to Tolhurst, she was doing her best to tell him everything!!!! 609.47 But then somewhat watered down at 610.2 and said: "A. No. I just didn't want to tell him too much, because I felt extremely uncomfortable. Submission: The omissions in her first statement are breathtaking given the content of her second statement The omissions together with the content of her second statement – about 9 months after RH's first statement strongly infers collusion as between AH and RH Warning AH Second Statement 21 March 2015 – MFI 14 Much more detail and includes important matters left out in first statement– 610.15 Between her first and second statements – living with RH – 610 annexure c ANNEXURE "C" SCA DEFENCE DOT POINTS NOTES OF EVIDENCE THURSDAY 2 DECEMBER CHIEF 739.37 – saw both her ROI's and both true 749-750 – Taken specifically to first ROI and said "true" And at 750 – same with second ROI [And confirmed in cross examination both were true and correct 758.32] 754.35 – taken to being shown penis in lounge room – Pauline Maguire [PM] not there 756.4 – Disclosure to Pauline Didn't believe me "Pretty sure" told her when she got home [from Canberra] and unpacked 756.18 SCA said she told PM: "Ray did something really bad, and I don't know what to do. He showed me his penis, and then I was scared." 756.40 – SCA said would have used the word "dick" 756.50 – SCA said that PM said "I don't believe you. He will never do that" – PM said nothing else so far as she knows 757.10 – nor did SCA say anything more she can recall Submission: It is unlikely that the conversation, even on SCA's version would have ended as stated No Disclosures in First ROI and Child Fantasy 757.15 – SCA response as to why not make disclosures in first ROI – because as to her fear and that she did not feel safe Submission: SCA's evidence appeared rehearsed and unrealistic That is because SCA in her first ROI was making very serious allegations of violence anyway and there was no sense of fear by SCA in that ROI and it appeared she was relishing in it – perhaps encouraged by the OIC's expression of "wow" AND significantly, SCA told MF at school the very day she was removed from care in August 2017 that she wanted to stay with the accused and PM and was observed by MF to have been upset SCA's first ROI was with respect no more than child fantasy The lack of disclosure and her apparent enthusiasm to advance the fantasies of violence are consistent with what accused told police in his ERISP – as to SCA making false allegations of violence whilst living with them and also the evidence of PM and MF The significance of the fantasy lies in SCA's first ROI cannot be understated – aggravated by no disclosure in the face of significant leading by the OIC Warning Friends with AH 759.5 – got on fine with AH and were friends SCA taken through Contact Visits with Mum, Dad and Jacqui and MF – 759.22 Started with mum, then dad , then Jacqui Mum was once a month – day visits Good thing spending time with mum – 759.38 Spoke to mum about stuff Didn't remember if discussed Ray and PM with mum – 760.5 SCA agreed there were lots of allegations of violence in her first ROI and said it started probably after couple of months and she said the same thing in cross examination – 769.8 Agreed would see Mark Fitzsummons [MF] about 1 a month and that he enquired how she was – that he was a good guy – 761.12 SCA said she did her best to be accurate and honest with MF - 761.36 SCA said she was being hit [by accused and PM] when she was seeing her mum and MF – 761.48 SCA agreed if afraid or scared of anything she could have told MF – 765.1 As to dad – 762.20 - and felt she could talk to him about anything and that he would protect her if could – 764.30 Would see dad more often than mum 762.38 Stayed overnight with dad but not with mum Often stayed overnight with dad – 2-3 consecutive nights 763.5 "Pretty good" relationship with dad and sometimes sister Jacqui was there and good relationship with her too – Jacqui 7 years older – SCA would speak to her about school and who she liked and didn't like – and about teachers and dance - 763.15 – 764.5 And SCA said she spoke to Jacqui about Ray and PM and felt could talk about anything with her – 764.24 and that Jacqui would protect her if could – 764.37 SCA said if afraid of anything she would have told dad and Jacqui – 764.42 SCA said she 'probably' also could have told mum if afraid – 764.47 Not know how to use Landline – Minimising knowledge of How to use phone – 765.35 SCA said didn't know how to use landline SCA said prior to Ray's only used sister's phone to take photos 765.50 BUT then agreed when pressed she had used a mobile phone before going to Rays' - 766.27 and more than once but not more than 10 times – 767.37 Submission: SCA may have sought to minimise her knowledge of how to use a landline in anticipation of being asked why she didn't call anyone when the violence was happening SCA then said she had spoken to someone using a landline – and that the other person called her - 766.50 – 767 SCA said she would have known how to call off a mobile but not of a landline 767.45 Spoke to on Phone to Dad and Jacqui Spoke to dad and Jacqui on PM's mobile phone – PM or dad would call and hand phone to SCA – and SCA agreed she could say what wanted to dad and to Jacqui – 768 Very Vague and Uncertain as to when hitting stopped SCA didn't know if still being hit by Ray and PM when taken away from placement – and when asked if it stopped at some time said "I guess" – then when asked whether she knew if hitting stopped said "I don't remember" - 769.34 – Pressed on this and asked when was the last time she recalled being hit - said "I really don't know" 769.45 Submission: Extraordinary that SCA wouldn't know whether the violence had stopped and if so approximately when - relevant to her leaving placement - if true AND Inconsistent with what MF said SCA said to him at school on the day she was removed from placement and thereafter for a time – as to wanting to go back to Rays' and Paulines' Warning SCA Knew it to be Wrong to be hit by adult – past experiences – 772.5 Taken to page 8 at Q 100 to Q 111 of her first ROI – re being hit by step-father [Chad Stein] – 772.49 Asked was Chad doing the hitting and SCA said I think so - 773.20 SCA knew it was wrong for Chad to hit her and that police would want to know - 773.27 Submission: Knowing it was wrong to be hit by accused and PM – it is very unlikely if not implausible she would not have told her father or Jacqui about the violence Warning When asked as to whether told anyone other than police – SCA asked for a Break – 775.1 SCA asked for a break when she was asked as to whether she had told anyone other than police. Submission: It is open to the court to find or at least suspect the break was sought because SCA knew she was being asked questions difficult to credibly answer SCA said didn't know why she didn't tell mum, dad, Jacqui or MF about the violence – 775 Her Own Tablet – Technology – 776.12 SCA was taken to her first ROI and she asked to read Q60 – Q 73 SCA knew iPad and tablet were the same thing and whether a device was an 'Apple' or not SCA said she was 'getting good at it" – using iPad – but this was after she had left Rays' – 776.49 Initially SCA said she did not recall having a tablet with Ray and PM but when asked to take a moment and think about it - then said – 'yeah I remember now' 778.22 Submission: Care to be exercised in accepting SCA's first responses It was a tablet used for education purpose - for school – used it and was getting better at it SCA said her tablet had internet and Ray and PM connected it – 779 SCA said she only used the internet for games - 780.35 SCA said her tablet was auto connected to Wi-Fi SCA said no-one was watching over her shoulders as to what she was doing when using tablet – other than her sister watching her play games - 781.10 SCA recalls PM and Ray having a tablet – and their phones - not laptops or computers – 782 Exhibit L wrong – as to bedrooms – 783.25 SCA said initially that her marking of her bedroom was not wrong but then agreed – it was wrong and was as put to her - 783.50 Knew would be talking to Police re First ROI – 784.31 - 786 Taken to page 11 of her first ROI – at Q 145 – as to being asked why she was there – to talk to police about Ray [and PM] Submission: SCA likely assumed that police suspected that accused and PM did something wrong SCA taken to her telling OIC in ROI that she said to Ray and PM 'stop stop stop…' and was then taken to page 9 of her ROI when she had also told the OIC that that is what she said to Chad when he was hitting her - and SCA was asked if when she answered that the she told the accused and PM "stop, stop, stop" whether she was thinking of what Chad was doing to her – however SCA said no Submission: It is instructive observation and the possibility of transference of violence by Chad to SCA to the accused and PM looms large – due not only to this evidence but also to the extreme fantasy demonstrated in SCA's first ROI – that PM would have sat by and laughed and watched the accused hit and kick SCA and then join is quite frankly, unbelievable As to dance and who would take – 'bit of both' – 764.13 As to Ray and Pauline taking here to dance Matter adjourned to Friday 3 December As to SCA's Anger – 799 - 810 SCA got legal advice from Liz Moran earlier in the morning SCA agreed would get angry When asked about throwing things said didn't want to answer and HH gave a s.38 certificate - 799 SCA said threw objects to protect herself – 799.32 Submission: Calculated answer and fanciful – very problematic as to her credibility and reliability Warning Took SCA through throwing things and hitting Ray and photos of damage to walls and doors and 'fucking dog cunt' – many times – and towards Pauline as well ETC – the thrust of her answers being that she was acting in self defence - 800.14 Submission: Contrast what told MF told the court as to his observations of SCA and lack of complaint to anyone about violence Damage to walls – because she was unsafe in that house – and seeing Ray's penis – then when asked if the damage was done after seeing his penis – SCA said "I'm pretty sure, yes" 803 – 804 Submission: SCA may be young but she is not naïve and her answers were at times seeking to minimise her actions/conduct and particularly, when on the evidence of the accused, PM, MF and Klyde Morris – SCA's outbursts were typical of her behaviour from the start of her arrival in placement at the home of the accused and PM There was then this exchange as to damage to a wall – Submission: whilst regrettable as to her feelings – it illustrates her feelings at commencement of living with Ray and PM - 805.20: Q. Why did you kick it? A. Because he hurt me, and I wanted him to feel hurt like he hurt me. Q. When you say he hurt you, how did he hurt you? A. He always grabs me, always hurt me, always like threatening me, always like pushing me - yeah. Submission: This evidence is of course about striking back – not even about sexual activity – SCA is here only referring to the fanciful physical assaults – demonstrative of her overall hurt because of her past and perhaps transferring onto the accused and PM the hurt caused to her by others in her past Then SCA clarified her evidence and said the accused did not say anything but showed her his fist - 806.15 SCA said she didn't think the accused had ever punched her [but contra her first ROI with police] - 806.25 The video of SCA stomping on a toy was then played to her – MFI 29 USB – 808 Then at 810.3 this exchange [SCA not sure if before or after seeing Ray's penis and not know if afraid at the time]: Q. Why did you do that? A. I don't know. I was young. I don't know what the heck I was doing half the time. Submission: A truthful answer – regrettably such was her anger and hurt from her past – her emotional state when not knowing what she is doing - must impact on at least her reliability Denied telling MF and FACS that she wanted to go back and live with Ray and PM Outright denial at 813.5 Submission: SCA didn't admit to saying these things but not true It is possible SCA doesn't recall saying these things But likely SCA won't concede she said these things knowing that she did – to be contrasted with the very fair evidence of MF – a very capable and well-meaning case worker doing a very difficult job OIC saying "wow" during first ROI – 813 Taken to a number of Q&A's – 185, 212, 213, Agreed she was encouraged to tell him more – "yeah I guess so" – 814.47 Pauline Watching and laughing Even in oral evidence stood by her ROI as to this – 815.30 Submission: It has already been submitted that this is extreme child fantasy but regrettably, with a sinister intent – to get an innocent person into trouble because of the "hurt" felt by SCA – hurt caused by other, not the accused or PM AS to MF coming to School SCA was taken to Q 217 of her ROI – meeting with MF and Kelly at school - 815.41 SCA said she thought the meeting was when she was leaving placement – which is consistent with MF's evidence – when he attended her school to collect her – 816.31 and 816.49 SCA did not recall telling MF and Kelly that she did not want to leave Ray and PM – and denied saying she wanted to go back and live with Ray and PM - 817.2 Submission: MF's evidence was strong as to his notes of SCA being upset and SCA saying those things to him and Kelly Likely SCA was not being truthful and seeking to distance herself from what she knew she had said to MF and Kelly This has a significant adverse impact on her credit Warning And later in XXN at 843 – SCA said she was pretty sure MF asked her if she was happy living with Ray and Pauline but then said didn't recall her response Submission – SCA's evidence was erratic and at times made up on the run Warning Agreed MF would ask her if happy and any concerns – 843 Denied telling anyone wanted to return to living with ray and Pauline Submission: Again – contrast the credible evidence of MF – 843 – 844.5 First ROI – page 19 – Q 235 – what not like about Ray SCA was taken to same and she confirmed correct that that was what she didn't like – that is – trying to frighten me and hurt me – and then throwing shoes - 817.5 Submission: Perfect occasion to tell police about the porn, rubbing his penis and showing his penis BUT didn't Knew to ring Police if Ray/PM did something wrong and telling OIC told MF SCA knew to ring 000 and DOCS - 818 Then taken to her answer as to not calling police and she then said - she thought she told Mark – at Q's 240-241 At 822.34 – 823.32 SCA was taken to her prior evidence as to not telling anyone – it was read out to her that she had not told her father, Jacqui, mum or Mark Submission: Clearly on the evidence SCA didn't tell Mark and she was either being untruthful or her evidence is at best unreliable as to having told Mark Ray removed her bedroom door to stop her from slamming it SCA agreed that Ray had removed her bedroom door to stop her from slamming it - 825.49 Stood by description in her ROI of and that Ray choked her Q's 376-379 in ROI – as to hand movements and choking – she stood by it – 826 Submission: Childhood fantasy Taken to Second JIRT ROI Sexual Activity Only happened Once Second ROI with detective Harrison – SCA told her Ray showing penis only happened on one occasion – and same with porn on iPad – only once – and SCA agreed with that in her evidence Ray at Door and I knew he would ask me or something Taken to what she said at Q 41 - asked what she meant and said I don't know – 827.43 Taken to Q 55 when she said that Ray said he was going to show her something "and I knew what it was" – and then this exchange at 828.30 Q. What did you mean by the words, "And I knew what it was"? A. Because he was rubbing on his penis. This then started lengthy XXN as to what Ray did at the door and established SCA did not tell police that he had rubbed his penis at the door – 828 At 829.10 asked how she "knew" and she said "I don't know. I just thought about it, I guess. I don't know." Then at 831 taken to Q 112 at page 11 of ROI – when SCA said that Ray asked her to come out and he would show her something – then she was asked what he did and she said he had a smile – a good smile like a plan that's going on – and she was asked what she meant – like a plan that was going on – and she said like he was going to make a plan and when the officer said "Yeah" – SCA said "That and I probably knew what he was going to show me." And when asked how she knew that is the first time SCA said – he was rubbing his penis in front of me – 831.23 Then SCA was taken to the rest of her answers in ROI – undies up the butt ETC including Q's 124 -132 inclusive and Q 335 – when Jones asked how SCA knew undies on if had shorts on - and SCA answered "I don't know but I think" But in cross examination, then asked was that answer correct and SCA said: "A. I think so, because I don't remember, I was young." Then when SCA was asked if she saw what he did – SCA said moving his penis in front of me – but she agreed that's not what she said to police 831-833 Crown Submission as to Rubbing Penis The Crown submitted that SCA in her second ROI did offer a 10 years old explanation for seeing the accused rub his penis at her doorway. Submission That submission should be rejected SCA demonstrated in her first ROI, let alone her second ROI that she was more than capable of explaining herself in the context of what she saw happening It would not have been difficult for SCA to have said simply what she said in oral evidence she saw, namely that she saw the accused "rub" or "rubbing" his penis and she had numerous opportunities to do so That is because police kept coming back to the same topic because her evidence was confusing [see for example Q 335] – not because SCA was speaking like a qo years old but because she was making things up on the run Experienced JIRT police officers clearly did not form the view that the Crown did and the Crown submissions on this point should be rejected. SCA Complaint to Pauline – 840 SCA was taken over her evidence in chief - [in chief at 756.16] and SCA said "pretty sure" PM said "That's a serious thing to be saying. You shouldn't say it if it's not true" - at 840.8 – 841.50 SCA denied telling PM that what she had said was not true 842.40 Submission: The manner in which PM's evidence fell out had a real sense of believability about it That when SCA admitted to PM that her allegation was untrue – PM told SCA that she would have to tell MF and that is when SCA became upset, cried and pleaded with PM not to tell MF because of her fear she would be removed from placement with the accused and PM The emotion on PM was evident as PM was giving her evidence PM said she relented and agreed not to tell MF because SCA was so upset With the benefit of hindsight it may not have been the right thing to do but nonetheless understandable given what must have been a very emotional situation PM's evidence should be accepted Photos of Walls/Door to House – 844 .20 At 844.20 – 846 and SCA largely blamed what Ray did for her actions Submission: The problem with that evidence from SCA is that there is ample evidence of SCA's outbursts from the commencement of her placement with the accused and PM SCA's Explanation for Non-Disclosure in her first ROI SCA said she didn't make any relevant disclosure in her first ROI in November 2017 - because she didn't feel safe Submission: That evidence should be rejected SCA had been living with Ms McCarten between August and November 2017 – 830.9 There is no evidence of any contact with the accused in that period When the evidence of MF as to what SCA said to him back in August 2017 on the day she was removed as to wanting to live with the accused and PM and being upset at not being returned to them – is also considered – the suggestion that as at November 2017 SCA was fearful [by inference fearful of the accused] is not credible and should be rejected. ********** Endnote 1. Defence annexures have been edited to change the names referred to in the annexures, to use initials or remove surnames, where appropriate, to avoid publication of the identities of the complainants 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: 01 April 2022