R v CP [2022] NSWDC 125

District Court New South Wales

Medium Neutral Citation: R v CP [2022] NSWDC 125 Hearing dates: 14 July 2021; 1, 18, 19, 20, 21 January 2022; 21, 22 February 2022; 4, 5 April 2022; 22 April 2022 Date of orders: 22 April 2022 Decision date: 22 April 2022 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: I find the accused guilty of count 1 on the indictment. I find him not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment. Catchwords: Judge alone trial - Sexual intercourse- Indecent assault–– Consent – Historical offending during the course of marriage- Tendency evidence Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Greenaway v R [2021] NSWCCA 253 R v Bauer [2018] HCA 40 Category: Principal judgment Parties: Regina (Crown) CP (Defendant) Representation: Ms S Beaumont (Crown) Mr M Coroneos (Defence) File Number(s): 2019/111137 Publication restriction: Suppression order with respect to the names of the complainants or information that might identify them

Judgment 1. The accused is charged with one count of indecent assault upon ML contrary to section 61L of the Crimes Act 1900, six counts of sexual intercourse without consent upon SJ contrary to section 61I of the Crimes Act 1900 and one count of indecent assault upon SJ contrary to section 61L of the Crimes Act 1900. 2. The indictment reads as follows: CP, between 12 June 1994 and 2 December 1996, at Hazelbrook in the State of New South Wales, assaulted ML and at the time of the assault committed an act of indecency on ML contrary to section 61L of the Crimes Act 1900 (Count 1). CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 2). CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900. (Count 3) CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 4). CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 5). CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, had sexual intercourse with SJ without her consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 6). CP, between 1 May 1995 and 31 December 1998, at Hazelbrook in the State of New South Wales, had sexual intercourse with SJ without consent and knowing that SJ had not consented to the sexual intercourse contrary to section 61I of the Crimes Act 1900 (Count 7). CP, between 1 August 1998 and 31 December 1998, at Hinchinbrook in the State of New South Wales, assaulted SJ and at the time of the assault committed an act of indecency on SJ contrary to section 61L of the Crimes Act 1900 (Count 8). 1. The allegations relate to a time during the 1990s when the accused was the brother-in-law of ML and the husband of SJ. The accused and SJ separated in February 1999 and divorced in about 2000. Counts 1, 2, 3 and 7 are alleged to have taken place at the accused's and SJ's marital home. Counts 4, 5, 6 and 8 are alleged to have taken place at the accused's sister's home. 2. The accused was born in Poland in 1963. He emigrated to Australia in about 1981 and met SJ at Penrith Panthers nightclub the following year when he was aged 19 and she was aged 16. They married in January 1988. They had three children, a son born in 1989, a daughter born in 1991 and a son born in 1994. They had an active sex life throughout their marriage, which broke down acrimoniously. There were very bitter family law proceedings thereafter. The accused and SJ had very little to do with one another in the years that followed, although they could both attend the wedding of their son. Both remarried. SJ did not complain about the events alleged to constitute counts 2 to 8 until about 2019, and then to police, more than 20 years after the alleged sexual assaults. 3. I note that this matter was postponed on several occasions because of the Covid-19 pandemic. For similar reasons, the trial took place on several days, interrupted by long periods. I express my thanks to Ms Beaumont on behalf of the Crown and Mr Coroneos on behalf of the accused who have navigated the difficulties with good humour, and for the collaborative manner in which they conducted the proceedings. 4. For the purpose of considering the elements which the Crown must prove, in the context of this case, the elements have been agreed between Ms Beaumont and Mr Coroneos. The elements of each offence are found at Annexure "A" of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt. 5. The Crown case with respect to count 1 is that on one night when ML had been babysitting the accused's children, and whilst she was in a spare bedroom with her own daughter, the accused walked into the room, placed his hand under the blanket and placed his hand onto ML's vagina resting his hand on top of her underwear for a few seconds without her consent. 6. The Crown case with respect to count 2 is that on one occasion during their marriage, SJ was asleep and woke to find the accused's erect penis which he was pushing into her mouth. She then pushed the accused away. 7. The Crown case with respect to count 3 is that on one occasion during their marriage, SJ was asleep and was woken by the accused's penis penetrating her anus. She pushed the accused away and screamed at him. She alleges that she had previously told the accused that she never wished to have anal sex. 8. Counts 4, 5, 6 and 8 allegedly occurred on the same night. The Crown case with respect to count 8 is that a few weeks before separating (for a time) in September 1998, SJ and the accused attended a party at the accused's sister's house in Hinchinbrook. The accused and SJ stayed overnight on separate lounges in the rumpus room at the back of the house. SJ recalled wearing a nightie. After falling asleep, she woke and saw the accused standing to her right and felt his penis on her mouth as he was masturbating. She moved her head to the left and pretended to be asleep (count 4). 9. The Crown case with respect to count 5 is that the accused then pushed his penis into SJ's anus. She laid on her back to prevent this happening again and pretended to be asleep. 10. The Crown case with respect to count 6 is that the accused then inserted more than two fingers into SJ's vagina and began moving them in and out whilst rubbing her clitoris. She pretended to be asleep. 11. The Crown case with respect to count 7 is that the accused then put his penis into SJ's vagina and laid on top of her and pushed his penis in and out of her vagina. She pretended to be asleep. 12. The Crown case with respect to count 8 is that on another occasion during their marriage the accused rubbed SJ's clitoris and placed his fingers into her vagina whilst she was asleep. She woke up but pretended to be asleep.