Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions v Murphy (a pseudonym) [2023] NSWLC 11 Hearing dates: 10 March 2023, 10 May 2023, 19 July 2023, and 1 August 2023 Date of orders: 9 August 2023 Decision date: 09 August 2023 Jurisdiction: Criminal Before: Nash LCM Decision: (1) I find each of the elements of the offence proved beyond reasonable doubt and enter a verdict of 'guilty'. (2) Mr Murphy is convicted of the offence. (3) The proceedings are adjourned for sentence. Catchwords: Crime – sexual touching of 5 year old child contrary to s 66DA Crimes Act 1900 – application of Murray and Liberato directions Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Awad v The Queen; Tambakakis v The Queen [2022] HCA 36 De Silva v The Queen (2019) 268 CLR 57 Liberato v The Queen (1985) 159 CLR 507 R v Murray (1987) NSWLR 12 Texts Cited: Nil Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Prosecutor) John Murphy (Defendant) Representation: Solicitors: Mr Larkin, ODPP Solicitor (Prosecutor) Mr Giles, Tony Cox Lawyers & Conveyancers (Defendant) File Number(s): 2022/00181372 Publication restriction: The offender's name is subject to a suppression order. The name of the complainant is also not to be published, nor is any other material that could lead to the identification of the complainant or any information that may reveal the relationship between the offender and the complainant. This includes the name of the mother and father of the complainant, and the complainant's relationship with the offender: s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). JUDGMENT PREAMBLE 1. These reasons explain why I have found each of the elements of the subject offence, that is, s 66DA(a) Crimes Act 1900 (NSW), proved beyond reasonable doubt. I have, therefore, returned a verdict of 'guilty' and will proceed to convict Mr Murphy of the offence. The proceedings will be adjourned for sentence. 2. It will be immediately apparent from the subject matter of these proceedings that pseudonyms have been used in this judgment for the names of the offender, the complainant, the complainant's mother, the complainant's father, and all other members of the complainant's family and extended family who were referenced in the evidence adduced at the hearing. 3. This is not done for the protection of the identity of the offender. It is intended to protect the identity of the offender's victim in circumstances where the publication of the name of the present offender would likely lead to the identification of the victim. 4. Accordingly, there is to be no publication of either the complainant's name or anything that may lead to the identification of the complainant: s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987 (NSW). This includes the name of the offender, the name of the complainant's mother and the name of the complainant's father. Identifying information has been removed from this judgment to comply with the legislation. BACKGROUND 1. On 22 June 2022, Mr Murphy entered a plea of 'not guilty' to a charge described in the court attendance notice that, between 12.01am on 1 July 2021 and 12.01am on 30 November 2021 at Kempsey, he sexually touched Cate Dale (the complainant), who was 6 years old. This is an offence against s 66DA(a) of the Crimes Act 1900 (the Act hereon) and carries a maximum penalty of 16 years imprisonment. 2. The complainant was, in fact, only 5 years old, but this misstatement in the court attendance notice is self-evidently inconsequential because an offence under s 66DA(a) of the Act relates to any child who is 'under the age of 10 years' (see par [10] below). 3. The Director of Public Prosecutions elected to proceed on indictment in this matter on 20 July 2022, but that election was withdrawn on 1 January 2023. 4. The matter was then set down for hearing in the Local Court but could not be completed on the first day of the hearing on 10 March 2023. It transpired that the original estimated duration of the hearing was insufficient, and further hearing days were necessary (although the hearing did not occupy the full day on each further occasion). Regrettably, though no one's fault, the further 3 hearing days were not consecutive. Be that as it may, the matter concluded on 1 August 2023, and due to the volume of evidence adduced at the hearing, I reserved my decision. 5. I now turn to the substance of the matter. 66DA Sexual touching—child under 10 Any person who intentionally— (a) sexually touches a child who is under the age of 10 years, or (b) incites a child who is under the age of 10 years to sexually touch the person, or (c) incites a child who is under the age of 10 years to sexually touch another person, or (d) incites another person to sexually touch a child who is under the age of 10 years, is guilty of an offence. Maximum penalty—Imprisonment for 16 years. 61HB Meaning of "sexual touching" 1. Section 66HB of the Act defines 'sexual touching' as follows: 61HB Meaning of "sexual touching" (1) For the purposes of this Division, sexual touching means a person touching another person— (a) with any part of the body or with anything else, or (b) through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual. (1A) The continuation of sexual touching as defined in subsection (1) is also sexual touching for the purposes of this Division. (2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include— (a) whether the area of the body touched or doing the touching is the person's genital area, anal area or breasts— (i) whether or not the breasts are sexually developed, and (ii) regardless of the person's gender or sex, or (b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or (c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual. (3) Touching carried out solely for proper medical or hygienic purposes is not sexual touching for the purposes of this Division. 1. In this judgment, I record my verdict and the reasons for reaching that verdict. 2. In reaching my verdict, I have set out below the directions which, by law, would be required to be given or made to a jury based on the evidence and issues arising in this matter. DIRECTIONS OF LAW 1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. As these are criminal prosecution proceedings, the burden of proving the guilt of Mr Murphy is placed firmly on the Crown. Mr Murphy starts from the position that he is presumed innocent, and that presumption continues until the prosecution satisfies me beyond reasonable doubt that he is guilty. 2. Mr Murphy does not have to prove that he is innocent. Expressed another way, he does not have to prove that he is not guilty, and it is for the Crown to prove his guilt if it can. What the Crown must prove, beyond reasonable doubt, are the ingredients or essential facts contained in the charge. The words 'beyond reasonable doubt' are ordinary, everyday words and that is how I understand them. 3. I warn myself that suspicion, even strong suspicion, is not a substitute for proof beyond reasonable doubt. 4. I note that, 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. The court cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence. If upon review of all the evidence the court is left with reasonable doubt whether the prosecution case has been made out, a verdict of acquittal must be entered. 5. The fact that Mr Murphy has given evidence at the hearing does not alter the burden of proof, which always rests on the Crown. He does not have to prove his version of events is, therefore, true. Even if all his evidence is rejected, I must still consider whether the Crown has proved the elements of the offence beyond reasonable doubt. 6. I acknowledge that I have important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all the relevant issues of fact according to the evidence that has been presented during the course of the hearing. 7. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness' evidence depends upon two quite different but sometimes overlapping considerations. One is the witness' honesty, and the other is the witness' accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say, but also the impression the witness made upon me. 8. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part, and reject part of that witness' evidence. 9. I remind myself that the fact a proposition is put by counsel or a representative of a party to a witness does not mean that the proposition is evidence of the fact contained in the question. It only becomes evidence of the fact if the witness accepts the proposition is true, or if there is other evidence that proves the proposition. 10. I next give myself what is known as a 'Murray direction', being a direction in accordance with the decision in R v Murray (1987) 11 NSWLR 12. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, as was the case here, it is important that the jury, and in this case myself, exercise caution. 11. I must exercise caution before I can convict Mr Murphy because the Crown's case largely depends on accepting the reliability of the evidence of a single witness, that being the complainant. 12. Given this, unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict Mr Murphy, I should examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. 13. That caution is not based upon any personal view that I have of the complainant. In any criminal trial, where the Crown's case relies solely or substantially upon the evidence of a single witness, a jury, or a judge or magistrate sitting alone, must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. 14. I am not suggesting that I am not entitled to convict Mr Murphy upon the evidence of the complainant. Clearly, I am entitled to do so, but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt. 15. In considering the complainant's evidence and whether it does satisfy me of the accused's guilt, I should, of course, look to see if it is supported by other evidence. 16. I next give myself what is known as a 'Liberato direction', being a direction in accordance with Liberato v The Queen (1985) 159 CLR 507, which was further explained in De Silva v The Queen (2019) 268 CLR 57, and more recently in Awad v The Queen; Tambakakis v The Queen [2022] HCA 36 at [73]. This is because Mr Murphy relied on an account of events given under oath in court. 1. First, if I believe Mr Murphy's evidence, I must acquit him. 2. Secondly, if I find difficulty in accepting his evidence, but think it might be true, then I must acquit him. 3. Thirdly, if I do not believe his evidence, then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved Mr Murphy's guilt beyond reasonable doubt? 1. The definition of 'prescribed sexual offence' under the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) includes an offence against s 66DA of the Act. 2. I note s 293A of the Criminal Procedure Act which states: 293A Direction may be given by Judge if differences in complainant's account (1) This section applies if, on the trial of a person for a 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 direct the jury— (a) that experience shows— (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and (ii) trauma may affect people differently, including affecting how they recall events, and (iii) it is common for there to be differences in accounts of a sexual offence, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and (b) 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. (2A) A judge may, as the judge sees fit— (a) give a direction in this section at any time during a trial, and (b) give the same direction on more than 1 occasion during a trial. (3) In this section— Difference in an account includes— (a) a gap in the account, and (b) an inconsistency in the account, and (c) a difference between the account and another account. 1. Finally, I also note ss 294 and 294AA of the Criminal Procedure Act which provide: 294 Direction to be given by Judge in relation to lack of complaint in certain sexual offence proceedings (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— (a) 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 (b) delay by that person in making any such complaint. (2) In circumstances to which this section applies, the Judge— (a) must direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and (b) must direct 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 (c) must not direct the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a direction. (2A) A judge may, as the judge sees fit— (a) give a direction in this section at any time during a trial, and (b) give the same direction on more than 1 occasion during a trial. (3) If the trial of the person also relates to a domestic violence offence alleged to have been committed by the person against the same victim, the Judge may— (a) also give a warning under section 306ZR, or (b) give a single warning to address both types of offences. 294AA Direction to be given by Judge in relation to complainants' evidence (1) A judge in any proceedings to which this Division applies must not direct 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 direction 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. EVIDENCE IN THE PROSECUTION CASE 1. I now turn to the evidence adduced in the prosecution case, which consisted of a series of documentary exhibits as well as oral evidence from various witnesses. I will set out this evidence in the order it was adduced at the hearing. The Evidence of Mr Dale 1. Exhibit 1 was a statement of Roger Dale. What follows is a summary of that statement. Later in these reasons I have outlined my findings, and in that section of the decision I have referred to some more specific parts of the evidence. 2. Mr Dale is the complainant's biological father. He was in a relationship with the complainant's mother Tegan Bright until 2018. Ms Bright gave birth to the complainant in 2016. In 2018, Mr Dale and Ms Bright broke up and they had a mutual agreement that the complainant would stay with him for a week and with Ms Bright each alternate week. 3. In late 2019, Mr Dale moved to Sydney and met his current partner, Nadine Yerbury. Ms Yerbury has a daughter named Gina, who was now 3 years old. At that time, the complainant was living with her mother Ms Bright. 4. On 14 December 2020, Mr Dale's father passed away in Kempsey and together with Ms Yerbury, they agreed to move to Kempsey. 5. While Mr Dale was living in Kempsey during the start of 2020, his cousin Violet Drake called him and said that she was going to bring the complainant to him. She told him that there was an argument at their house involving Ms Bright and Mr Murphy. As a result, Ms Drake dropped the complainant off to him. 6. In approximately August 2020, Mr Dale received a phone call from a Department of Communities and Justice case worker. That person told him that the complainant had been reported missing and requested that he attend the nearest police station. He then took the complainant to Kempsey police station and resolved the issue. 7. Sometime between August 2020 and the end of 2020, Mr Dale received an affidavit filed against him through the family law courts from Ms Bright wanting full custody of the complainant. He sought legal advice, and the matter went through the family law courts. 8. Together with Ms Yerbury and the complainant, they travelled back and forth between Kempsey and Sydney between August and December 2020. Following Ms Yerbury's father passing away in December 2020, they decided to move to Sydney in January 2021. While back in Sydney, Mr Dale enrolled the complainant in school, and he had another son with Ms Yerbury named Riley Dale, born in August 2021. 9. The family law matter was finalised in December 2021, and he now has full custody of the complainant. 10. On 8 January 2022, Mr Dale, together with Ms Yerbury, went to pick up the complainant and Gina from their cousin's house. The following morning, they both sat down with the complainant and Gina to speak about a game they had been playing the day before. The complainant went to her room to get dressed and Mr Dale noticed she was upset. Ms Yerbury asked the complainant: 'did anyone touch you when you were living with your mother?'. The complainant said: "when I was waking up, he was touching my mimi, I told mum that [Mr Murphy] was touching my mimi but she said don't be stupid". 11. Mr Dale said that 'mimi' is what he understands the girls were told to call their vaginas. Ms Yerbury contacted police to make a report of what happened. 12. Mr Dale was not required for cross examination. The Evidence of Ms Yerbury 1. Exhibit 2 was a statement of Ms Yerbury. What follows is a summary of that statement. Later in these reasons I have outlined my findings, and in that section of the decision I have referred to some more specific parts of the evidence. 2. Ms Yerbury is the complainant's stepmother. She had been seeing the complainant's father, Mr Dale, for about 3 or 4 years at the time of the incident and had resided together since late 2020. 3. Since about December 2021, Mr Dale has had full custody of the complainant. Before that time, Mr Dale, together with Ms Yerbury, would drive the complainant to Kempsey every third week so that she could see her mother Ms Bright. The court order was that the complainant could see her mother only under the supervision of her grandmother Ms Stephanie Hughes. 4. On 7 January 2022, Ms Yerbury and Mr Dale were on their way to dinner for Mr Dale's birthday, together with her other cousin Nancy Quentin. The complainant and Gina were in the back of the car, and Ms Yerbury was in the middle section. Ms Yerbury asked them about a conversation that was occurring in the vehicle about a game that the complainant and Gina had been playing, and Gina said 'nothing, nothing', but she thought Gina was hiding something. 5. When they got home that evening, Ms Yerbury asked them again what the game was that they were playing. Ms Yerbury said they still seemed to be acting guilty and were trying to hide something. She said she was not getting anywhere and so left it and went into the bedroom. 6. The next day in the afternoon, Ms Yerbury spoke with Gina while Ms Dale and the complainant were outside. She said to Gina: "what is this 'mums and dads' game, tell me now". Gina responded: "[The complainant] taught me how to play". Ms Yerbury said: "how do you play, what do you do?". Gina said: "[The complainant] kissed me on the lips and the head". 7. Mr Dale heard her through the window and came in with the complainant. Ms Yerbury told the complainant to tell her the truth. Ms Yerbury said that she was angry and then left to take Gina to have a shower but was worried about her (the complainant). She then went to the complainant and asked her to say who taught her the game, but the complainant kept shrugging her shoulders. Ms Yerbury asked the complainant: "Has anything happened to you? Has anyone touched you?". She responded: "John", meaning John Murphy. The complainant then became emotional and started crying. 8. Ms Yerbury then got her phone out and recorded the complainant and asked: "Has anyone touched your mimi?". Ms Yerbury said that in Fijian, 'mimi' means private parts. The complainant said: "yes, John [Murphy] did". 9. Ms Yerbury asked the complainant: "Did you tell your mum?". She said "yes, she said don't be rude to John". Ms Yerbury then called police and told them what the complainant had told her. 10. The phone recording was tendered as Exhibit 12. 11. Ms Yerbury was not required for cross examination. The Evidence of Ms Bright 1. Exhibit 3 was the statement of Tegan Bright. What follows is a summary of that statement. I have also incorporated the additional oral evidence she gave in chief at the hearing. Later in these reasons I have outlined my findings, and in that section of the decision I have referred to some more specific parts of the evidence. 2. Ms Bright is the biological mother of the complainant. The complainant's father is Mr Dale, who she met in 2014 or 2015. When she gave birth to the complainant, she was living in South Kempsey. She has 2 other children: Arthur (born in 2020) and Jerry (born in 2021). 3. When the complainant was about one year old, Ms Bright left Mr Dale and moved in with her mother. This was in approximately 2017 or 2018. The complainant came with her to live with her mother. Mr Dale moved to his parent's house in Port Macquarie. 4. Ms Bright and the complainant would occasionally go and stay at Mr Dale's parent's house in Port Macquarie so that they (Mr Dale and his parents') could see the complainant. Ms Bright met another man named Ralph in about 2017/2018, and during that relationship she said she suffered from domestic violence. She would, therefore, leave the complainant with her mother because she did not want her exposed to the violence. Ms Bright was also living at her mother's house as well as with an Uncle Charles, back and forth from each. She had met Mr Murphy in around 2019, and Uncle Charles and Aunty Denise raised Mr Murphy, so they were like his parents. 5. Mr Murphy was living in Campbelltown at the time. Together with the complainant, Ms Bright moved to Airds near Campbelltown in around July 2019 to 2020. Mr Murphy was then imprisoned, so Ms Bright moved back to Kempsey. She lived with the complainant at the home of Nathan and Madge Dale in Kempsey, who she described as 'basically Mr Murphy's parents'. 6. For a while, Ms Bright and the complainant lived in a refuge before getting her own place in Kempsey. She broke up with Mr Murphy, but when he was released from prison they got back together and moved to the Campbelltown area again. She said that despite Mr Dale living close by, he never had much to do with the complainant. 7. In around late 2019 or 2020, Mr Dale and Ms Yerbury were living in Kempsey and Ms Bright was living in Campbelltown. She said that she would come back to Kempsey, mainly on weekends, and that Mr Murphy would need to tell his parole officers about these movements. When they came back to Kempsey, they would stay with Uncle Charles. 8. One day they were staying with Uncle Charles in Kempsey, and Mr Dale's sister called her and said that she wanted to take the complainant to the beach to see Mr Dale. Ms Bright agreed. Not long after Mr Dale and Ms Yerbury arrived, they wanted to fight Ms Bright and Mr Murphy. The police were called. Ms Bright was also with her son, Arthur, who had been born in September 2020. The police searched the house for Mr Murphy and found him. He was subsequently arrested. From that day, Ms Bright said that she never got the complainant back. Mr Murphy stayed in custody until Arthur was about 6 months old. Ms Bright then moved in with her mother for a while. 9. Ms Bright said she started family court proceedings to try and get the complainant back in around August. The court ordered that they bring the complainant to her every third weekend. About a month or 2 before Arthur's first birthday, Mr Murphy was release from custody. Together with Mr Murphy and Arthur, she moved into Uncle Charles' place for a while. 10. From this time, the complainant came to her mother's house about 5 times. She would take Arthur and they would stay there. She said that Mr Murphy never came. 11. One afternoon, together with Arthur and Mr Murphy, they went to the IGA to go shopping, and ran into her (Ms Bright's) mother and the complainant. The complainant asked if she could stay with Ms Bright for a while, and her mother (Ms Hughes) agreed. They then went to Uncle Charles' place. At that time, Ms Bright and the accused were living in the front room. It was a cold afternoon and Mr Murphy was out playing around with things in the backyard for most of the time. The complainant stayed with them for about 3 nights, and she slept in the bed with Ms Bright and Arthur. Mr Murphy did not really sleep back then, and he was always out with his friends. They all stayed inside and as Arthur was so young, they just largely stayed at home. 12. Mr Dale and Ms Yerbury arrived to pick up the complainant. The complainant was crying because she did not want to leave, and she had an argument with Ms Yerbury. Ms Bright also gave evidence about another night when the complainant refused to go into her mother's house (Ms Hughes), and so they instead stayed at Mr Murphy's cousin's house. At that time, Mr Murphy was not present. Since this time, Ms Bright thinks that she has only seen the complainant about twice. Both times were with her mother, Ms Stephanie Hughes. 13. In her further evidence in chief in court, Ms Bright said that when the complainant came to stay with her after the meeting at the IGA supermarket, Mr Murphy was hardly there, and he would 'come and go' from the property. He was occasionally inside the house but was never alone with the children. She said that she always supervised Mr Murphy's contact with the complainant. She said she knows that the conduct, which is the subject of the allegations did not happen, because she always looks after her children, especially her daughter, the complainant. She said that the complainant followed her everywhere and she never saw the complainant alone in the bedroom with Mr Murphy, or in any other part of the house. She also said that Mr Murphy is a great father figure. She denied that she ever saw Mr Murphy touching the complainant. 14. Ms Bright was cross examined. She said that if she ever saw Mr Murphy touching the complainant, she would react by assaulting or stabbing him. She denied saying to Mr Murphy that he should "stop being rude" to the complainant. She denied ever seeing Mr Murphy touch the complainant in a sexual way. The Evidence of Ms Hughes 1. Exhibit 4 was the statement of Stephanie Hughes. What follows is a summary of that statement, and I have also incorporated the additional oral evidence she gave in chief at the hearing. Later in these reasons I have outlined my findings, and in that section of the decision I have referred to some more specific parts of the evidence. 2. Ms Hughes was the sole carer of Ms Bright and is her grandmother. Her son, William Banks, is Ms Bright's father, but he was not part of her life when she was growing up. 3. Ms Bright began a relationship with Mr Dale and as a result they had a daughter, the complainant. Their relationship deteriorated and ended around 18 months after the complainant's birth. 4. Ms Hughes' said that Ms Bright cared for the complainant and would drop her to her place so that she could look after her. She said that she was constantly in the complainant's life. She said she remembered a time when Mr Dale and Ms Yerbury dropped the complainant to her house to stay over. Then, with the complainant, they went to the IGA in Kempsey. Ms Hughes' was standing behind the checkout area loading groceries and noticed Ms Bright and Mr Murphy walking just outside. The complainant also noticed her mother and ran over to her. She approached Ms Bright and Mr Murphy and said hello. She told the complainant that they had to go, but the complainant insisted that she wanted to stay with her mother, Ms Bright. Ms Hughes said she felt like she could not say no, and therefore she let the complainant go with her mother and told Ms Bright to drop her off to her house in the afternoon. 5. Later that afternoon, she called Ms Bright to see if the complainant was coming home. Ms Bright told her the complainant wanted to stay. Ms Hughes' said she knew Ms Bright was staying at Uncle Charles' place in South Kempsey. The following day, she drove to the house and was met by Ms Bright and the complainant. She told the complainant she had to come home with her because she knew Mr Dale would not like her staying at the house with Ms Bright. The complainant insisted that she wanted to stay with her mother, so Ms Hughes' left. 6. The next day, Mr Dale and Ms Yerbury went to Ms Hughes' house and asked her where the complainant was. She told them that the complainant wanted to stay with her mother at Uncle Charles' house. Mr Dale and Ms Yerbury drove to Uncle Charles' house. Ms Hughes said that she followed them in another vehicle. On arrival, she walked toward the house and saw Mr Dale walking up to the complainant. He picked her up and put her in the car. Ms Yerbury started arguing with Ms Bright, and they were screaming profanities and yelling at each other. Ms Yerbury then got back into the car and left with Mr Dale and the complainant. Ms Hughes said that she simply got back into her car and drove away. She said she is aware that Mr Dale has legal custody of the complainant. 7. Ms Hughes said that the complainant never mentioned any allegations against Mr Murphy to her, noting that she was very happy and has never told her that she felt unsafe. Ms Hughes' said that if she had been made aware of the allegations about Mr Murphy, she would have taken them very seriously because she adores the complainant. 8. Ms Hughes was cross examined, and she confirmed that the complainant never said to her that she felt unsafe around Mr Murphy. She said that issues about her safety never came up and the complainant was always happy. She said that she would not ignore conduct of the type alleged against Mr Murphy if she knew he did something like that. The Evidence of Detective Senior Constable Richard Yang 1. Exhibit 5 was the statement of Detective Senior Constable Richard Yang. The statement outlines the steps taken to obtain statements from the complainant, Mr Dale, Ms Yerbury, Ms Bright and Ms Hughes. DSC Yang was not required for cross examination. 2. Exhibit 6 was the recorded interview with the complainant, conducted by DSC Yang on 19 January 2022. What follows is a summary of the critical parts of that statement. Later in these reasons I have outlined my findings, and in that section of the decision I have referred to some more specific parts of the evidence. 3. At the time of the interview, the complainant was 5 years old. After carefully explaining the difference between truth and lies, the complainant acknowledges that she understands the difference, and told DSC Yang that one day while at Kempsey, Mr Murphy touched her 'rude part'. She said that she had been at the shops with her nan (Ms Hughes), and they saw her mother Ms Bright, and Mr Murphy. The complainant said that she went home with Ms Bright and that is when Mr Murphy touched her rude part with his hands. At the time, they were at Uncle Charles' place. She said that another name for her rude part is 'mimi'. 4. She was then asked to indicate on a sketch of a young girl where Mr Murphy touched her, and she proceeded to do so. Tendered at the hearing was a copy of the sketch, marked as Exhibit 7, showing a circle which, the complainant had drawn on the sketch around the vaginal area. She said that she was wearing a skirt at the time but was not wearing any underwear. She could not recall what colour the skirt was. 5. She said that when Mr Murphy touched her, she was in her mother's room alone with him. Mr Murphy used his hands to touch her 'mimi' directly on the skin. She said that her mother was making lunch or dinner in the kitchen at the time. While Mr Murphy was touching her, her mother (Ms Bright) came into the room and said: "what are you doing?" and "stop being rude". The complainant said that Mr Murphy only ever touched her 'mimi' on that one occasion. 6. The complainant was also cross examined and I will return to this evidence shortly. 7. The other material tendered in the Crown case was as follows: 1. Exhibit 8 which comprised 9 photographs of the house and location of the alleged offending conduct. 2. Exhibit 9 was a statement of agreed facts which said: 1. The complainant was 5 years of age between 9 September 2021 and 8 January 2022. 2. Mr Murphy was not present in Kempsey between 25 June and 9 September 2021. 3. Mr Dale has sole parental responsibility of the complainant, who resides with him. However, the complainant spends time with Ms Bright as agreed between the parties in writing. 4. Mr Murphy was charged with the index offence on 20 June 2022. 1. Exhibit 10 was a statement of Detective Senior Constable Jade Leary which references the photographs in Exhibit 8 and the conversation with Mr Murphy in which he declined the opportunity to participate in an electronically recorded interview. 2. Exhibit 11 which comprised 2 phone recordings taken on 18 March 2022 and 6 April 2022. These are phone recordings of conversations between Mr Dale and Ms Bright. I will return to this evidence later. EVIDENCE IN THE DEFENCE CASE 1. Mr Murphy conceded a prima facie case and elected to give evidence. 2. Mr Murphy denied the allegation that he sexually touched the complainant. He said that Ms Bright's relationship with her children is protective, loving, and caring. He also said that Ms Bright would 'flog' him if he had touched the complainant in the manner alleged. 3. He denied that he had ever touched the complainant on her private parts. He said that, although he had a criminal history, he had never been convicted of sexual assault. A document setting out his criminal antecedents was tendered as Exhibit A. 4. Mr Murphy said that there was 'no love lost' in his relationship with the complainant's father, Mr Dale: they do not like each other. He said that the situation was the same with Mr Dale's partner, Ms Yerbury. He said that Mr Dale and Ms Yerbury gained full custody of the complainant around the same time that the allegations, which are the subject of this matter, arose. 5. Mr Murphy was also cross-examined, and I will return to this evidence shortly. 6. There was no other evidence adduced in the defence case. FINDINGS 1. The only issue in this case was whether Mr Murphy touched the complainant in the manner described in her evidence. No issue was taken that the alleged touch, on the complainant's evidence, was anything other than 'intentional', nor anything other than a 'sexual touch' within the meaning of s 66HB of the Act. It was also not in dispute that, at the time of the alleged touch, the complainant was less than 10 years old: she was 5. 2. For the following reasons, I find beyond reasonable doubt, that: 1. Mr Murphy intentionally touched the complainant. 2. The touch was sexual in nature, being directly on the complainants' skin outside and near her vagina, as indicated on the sketch tendered as Exhibit 7, and 3. The complainant was less than 10 years old at the relevant time. 1. Therefore, I find, beyond reasonable doubt, that the Crown has proved each of the elements of an offence against s 66DA of the Crimes Act 1900. 2. As to the complainant's evidence, I observe the following matters. 3. The complainant was interviewed by police on 19 January 2022 which, on the Crown's case, was proximate and at a time within 4 months of offending. The date range commences on 9 September 2021 as set out in the agreed facts, which was tendered as Exhibit 9. It extends to the date of first disclosure on 8 January 2022, as particularised in the statements of Mr Dale and Ms Yerbury. 4. During the complainant's recorded interview, she made continued and consistent assertions that Mr Murphy touched the skin near her vagina while she was alone in her mother's bedroom. This included her clear identification of the area where she was touched, as indicated in the sketch tendered as Exhibit 7. She also described the area as 'right next to the legs'. Although she was only 5 years old at the time, her ability to particularise the area of the touching remained consistent throughout her given evidence. 5. Although the complainant's initial disclosure to DSC Yang was hesitant and incremental, this was understandable given that she was 5 years old, and particularly understandable considering the subject matter of what she was discussing with the officer. The complainant initially referred to a person 'touching her', that person being 'somebody from Kempsey'. She then identified that person as Mr Murphy, and that he touched her vagina. The level of detail that she was ultimately able to provide was significant: she said that Mr Murphy used his hands to touch her on the skin outside her vagina, she said that she was wearing a skirt with no underwear, and that this occurred in her mother's room. 6. There can be no doubt that the conduct of Mr Murphy constitutes a 'sexual touch' within the meaning of s 61HB(1) of the Act, having regard to the matters in s 61HB(2). As I said at the outset, there was no issue about this arising on the complainant's evidence and there was also no reliance on, for example, s 61HB(3) of the Act, which provides that touching carried out solely for proper medical or hygienic purposes is not sexual touching. 7. The complainant also provided consistent evidence of the peripheral circumstances of the offending, including the events which preceded it, such as the chance encounter with her mother, Ms Bright, and Mr Murphy, while she was at the IGA with her grandmother. This is significant given her variable living circumstances and those of her mother over that time. The complainant also recalled this encounter with such a degree of specificity that she was able to describe the way in which Ms Bright and Mr Murphy entered the shops and recalled the specific purpose of her mother's presence at the shop, that being to purchase food for her brother. 8. The complainant then recalled the detail of the journey to her mother's house, where she was staying with Uncle Charles, and the occupants of the vehicle. This evidence was consistent with the evidence of Ms Bright and Ms Hughes. 9. Although there was no issue that the complainant was in the care of her mother and Mr Murphy on various occasions during the relevant timeframe, such as to provide Mr Murphy the necessary access and opportunity to commit the offence, her evidence also narrowed down the date range, and thus emphasised her reliability as a witness. 10. The complainant's mother and Ms Hughes confirmed in their evidence that Ms Bright did indeed reside at her Uncle Charles' residence in Kempsey with the accused throughout this period. The complainant's account is logically plausible as she particularises that the incident occurred in her mother's room while she was not directly supervised as her mother was preparing a meal. Following the incident, the complainant moves to her bedroom, which she shared with her bother, and watched TV with him. The complainant describes with specificity that they were watching her brother's movie on Netflix. This, again, confirms and explains why she was alone in her mother's bedroom. 11. The complainant stated that Ms Bright was in the kitchen preparing a meal and came into the room and said, "Stop being rude". The complainant says that her mother saw what had occurred regarding Mr Murphy. This volunteered detail of the precise words spoken remains consistent from the first complaint made in January 2022 to cross examination in May 2023, from the age of 5 to 7. 12. In this respect, the complainant was only asked 2 questions in cross examination: 1. First, "are you sure your mother was there when you say [Mr Murphy] did this to you?". To which the complainant answered "yes", and 2. Secondly, "You also said that your mother said to [Mr Murphy] 'Don't be rude'. That's right, isn't it?" To which the complainant answered "yes". 1. The complainant's account was, therefore, not seriously questioned. Her answers to those questions did not undermine any of the evidence that she gave in her recorded interview, but rather, served to bolster her reliability and honesty as a witness. She has never wavered from the detailed outline of what occurred in her mother's bedroom when she was alone with Mr Murphy at the relevant time. 2. The complainant's evidence is inconsistent with a contrived narrative. The evidence was relatively detailed as it related to the sequence of events and particularisation of the offending conduct. The recorded interview itself reveals the complainant's overall demeanour, in which she carefully considered questions when necessary, and is visibly engaged throughout the process. 3. At one point in the complainant's interview, she appears to conflate the time of the incident, referring initially to a time in proximity to lunch, whilst later reporting that it had occurred when her mother made dinner. Rather than detracting from my assessment of her reliability and honesty, this elevated my assessment of the complainant as a credible witness because she inadvertently particularised a reasonably acceptable circumstance in which she would likely not be directly supervised. The relative confusion on this issue is developmentally appropriate and understandable. I consider it a feature of her age, and the time lapse between the relevant events and her evidence. 4. It is ultimately, in my assessment, an inconsequential minor difference in her evidence which does not serve to undermine her credibility, reliability or honesty on the centrally relevant event, which is the subject of this matter, in respect of which she remained fulsome and consistent in her account. 5. Further, the complainant never embellished or unnecessarily exaggerated her evidence. She was, therefore, careful not to unfairly implicate Mr Murphy. She was asked if Mr Murphy had touched her on more than one occasion to which she replied: "That's only one time". Police again asked if he had done anything else and she again replied: "No, no. That's all he did'". 6. Finally, the complainant readily acknowledged the limitations of her recollection of events, and these concessions were made irrespective of whether it was in her interests to do so and thus serve to reinforce the positive findings about her credibility, reliability, and honesty as a witness. She told police that she could remember being at her Uncle Charles' house where the incident occurred (although could not state the address) but could not remember precisely when the incident happened. She described that, at the time of the incident, she was wearing a skirt but did not know what colour it was. She could not recall if Mr Murphy said anything after the incident. The complainant could not recall what she and her grandmother purchased at the shops or the name of the shops. These clear and direct concessions, and her acknowledgment of the limitations of her memory, fortified my view that in respect of the critical parts of what would unquestionably have been an incident difficult to forget, the complainant was honest, credible, and reliable. 7. I found that her evidence was reflective and detailed and had the echoes of an authentic memory of a lived event. I had no reason to doubt it. 8. There was ultimately no basis to invoke the provisions of s 165A of the Evidence Act 1995 (NSW) in respect of the complainant's evidence. Based on the above combination of reasons, I am satisfied that her evidence was credible, honest, and reliable beyond reasonable doubt. 9. As to Mr Dale's evidence, and the evidence of Ms Yerbury, their respective accounts corroborate the complainant's account to the extent that she stayed in Kempsey in the expected care of her grandmother on various occasions throughout the relevant period. They also particularise the facts and details of the complainant's first complaint. Their unchallenged statements confirm that the general custodial arrangements for the complainant during the relevant period allowed for contact with her mother, but only when supervised by her grandmother. 10. Ms Yerbury said that prior to mid-December 2021, when orders were made for the complainant to reside with them on a full-time basis as identified in the agreed facts in Exhibit 9, they would visit Kempsey every 3 weeks to allow the complainant to stay with her grandmother and see her mother. The last occasion that the complainant stayed with her mother was on 19 December 2021. This evidence established that the complainant stayed with Ms Hughes on several occasions between September 2021 and January 2022. 11. Similarly, both Mr Dale and Ms Yerbury corroborate the circumstances of the initial disclosure that occurred on 8 or 9 January 2022. This occurred following a discussion with Ms Yerbury's daughter Gina. The complainant subsequently told both Mr Dale and Ms Yerbury that Mr Murphy had touched her. The evidence also confirms that upon first complaint, the complainant disclosed that her mother observed the incident and said to Mr Murphy: "don't be rude". 12. The content of the complaint evidence was consistent with what the complainant had told police in her recorded interview. This evidence of complaint supplies additional proof of, and substance to, the allegations and the charged conduct, and supports the earlier findings in relation to the complainant's credibility, reliability, and honesty. 13. As to the evidence of Ms Bright and Ms Hughes, the evidence is only relevant to the extent that it corroborated the circumstances in which the offending occurred. Neither witness said that they directly observed the offending conduct, but their evidence sought to influence the Court's findings on the opportunity for Mr Murphy to have engaged in that conduct. 14. Ultimately, the effect of their evidence was that during the relevant period between September 2021 and January 2022, the complainant would stay primarily with her grandmother when she travelled to Kempsey. Both witnesses confirmed the complainant's evidence that there was a day likely in late 2021 on which Ms Hughes took the complainant to the IGA in Kempsey and saw Ms Bright and Mr Murphy. Both witnesses corroborate that the complainant asked to spend time with Ms Bright on this occasion, and that Ms Hughes permitted this to occur. Consistent with the complainant's evidence, Ms Bright said that they subsequently stayed together for several days. Ms Bright told the court that Mr Murphy was present for at least some of this period. On the third day, Mr Dale and Ms Yerbury arrived at Ms Hughes' residence and when they were told that the complainant was with her mother Ms Bright, they travelled and picked her up. 15. The evidence therefore corroborated the complainant's account as it relates to the peripheral circumstances of the offending and reinforces that Mr Murphy had the necessary access and opportunity to commit the alleged conduct. 16. The key aspect of Ms Hughes' evidence, as it related to the issues in dispute, was whether the complainant disclosed the offending briefly referred to in her first disclosure, at least to Mr Dale and Ms Yerbury. In evidence, Ms Hughes definitively denied not only that the complainant never disclosed matters to her, but that after the incident there was never a time that she was alone or in a private setting with the complainant without Mr Dale and/or Mr Yerbury present, such that would even present the opportunity of disclosure. However, Ms Bright reported to police in her statement that on a night after the incident, around 21 December 2021, she and her mother shared sole care of the complainant while she stayed in Kempsey. In support of this account, Ms Yerbury confirmed that the last time the complainant went to Kempsey was on 19 December 2021 when they dropped her at Ms Hughes' residence. Ms Yerbury reported that the agreement was that Ms Bright was not to be there. 17. Therefore, the material before the court indicated that Ms Hughes did have precisely the opportunity for disclosure that she vehemently denied in evidence. 18. The availability of evidence in both the Crown case and the defence case which directly conflicted with Ms Hughes' unequivocal statements is such that I disregard Ms Hughes' given evidence on the basis it was fundamentally unreliable, and, therefore, does not cast any reasonable doubt on the complainant's evidence. The only impression I was left with, including having closely heard and watched Ms Hughes give evidence in court, was that it was designed and manufactured to limit or exclude the possibility that Mr Murphy committed the offending conduct. 19. Ms Bright also sought to exclude the possibility of the offending conduct by saying in evidence, firstly, that Mr Murphy was rarely at the house during the relevant period, secondly, that if he was present, he would never have supervised the complainant on his own, and, thirdly, that she always supervised the complainant and she was rarely out of her sight in any event. Ms Bright gave evidence that Mr Murphy was "hardly there", would come and go during the relevant period, and if he did enter the house, it was mainly to check on her, rather than to greet and spend time with the children. The evidence confirms, at the very least, that Mr Murphy was present at the house during the relevant period. I was left with one impression of Ms Bright's evidence, namely, that she continued to tailor it to create an exculpatory narrative for Mr Murphy. When asked if Mr Murphy was ever alone with the children, she said "no, I was there at all times" and that the complainant "always followed her wherever she went", even following her to the toilet. She told the court that she would be with, supervise, and be able to observe the complainant (who was 5), her one year old son Arthur and other new born child at all times. 20. Applying common sense, Ms Bright's evidence about these circumstances is implausible. This is due the size of the residence, number and visibility of the bedrooms from other areas of the house, and the inherent and inescapable demands of general domestic duties and responsibilities for 3 children under 6 years old without, in her words, the support of her partner. 21. Further, as Ms Bright's evidence unfolded, the definitive narrative began to erode and became internally inconsistent. Ms Bright reluctantly confirmed that the complainant liked watching YouTube, movies, and playing games on her iPad. When questioned, she gave evidence that the complainant would, in fact, play the iPad in one of the bedrooms unsupervised either without her brother in certain circumstances such as if she was in the kitchen or if Arthur needed assistance in the bathroom. Ms Bright told the court that she would be "not far away from her" and offered an example of such an occasion to include when she would make a bottle for the younger children, confirming that there were times when the complainant was in another room and, again, not directly supervised by her or anybody else. 22. When asked generally about what the complainant did for the few days that she was present, Ms Bright offered that "she just pretty much played her iPad, you know, we had the TV, I had a baby at the time. So I'm just attending to both kids on my own at this point". It appears that the offending could have occurred in any of the bedrooms, as Ms Bright says that they did not have a fixed arrangement to sleep in a particular bedroom of the house when they stayed there. 23. The allegation was that the offending conduct occurred when Ms Bright was in the kitchen making a meal and thereby was not directly supervising the complainant. Relevantly, Ms Bright confirmed that she was responsible for meal preparation and that she would be unable to see into the bedrooms from the hallway, and, therefore, the kitchen area. When I look at the photographs in Exhibit 8, this is readily apparent. 24. As such, the effect of Ms Bright's evidence was that she inadvertently allowed for the possibility of the complainant being alone in a bedroom, with a lack of direct supervision for periods of time. She also presented an inconsistent narrative in relation to Mr Murphy's level of supervision of the children. While at first, she stated that he would never supervise them alone, she subsequently conceded that he may have looked after their son, Arthur, but he had never supervised the complainant. This is despite offering an example to Ms Bright that Mr Murphy would, on occasion, look after Arthur while she had a shower, whilst subsequently and definitively expressing that her children have showers with her, presumably to account for occasions when the complainant was present. She then explained that Mr Murphy was a "great father figure" to all the children, however, she could not offer a reason why, in these circumstances, he did not look after the complainant. 25. At this juncture, before I turn to consider Mr Murphy's evidence, I will outline the relevance of the recorded phone calls between Mr Dale, Ms Bright and the complainant which were tendered as Exhibit 11. These calls, which occurred on 18 March 2022 and 9 April 2022, highlighted the clear hostility between Mr Dale and Ms Bright. The calls provide context for the offending conduct, and I recognise that despite entrenched family dynamics and hostility between various parties, the issue always remains whether the court should accept the complainant's evidence as credible, reliable, and honest, beyond reasonable doubt. These calls simply fortify my findings about the complainant and the evidence which I heard from Mr Dale. 26. The first call ran for approximately 23 minutes and the second call for about 5 minutes. The complainant participated in the second call ostensibly to tell her mother directly about the allegations. The calls provide an insight into Ms Bright's state of mind and how she reacted and responded to the allegations when put to her by Mr Dale, and subsequently when they are directly articulated by complainant. Throughout the first call, Ms Bright refused to accept the allegations from Mr Dale and stated that she wanted to hear them from the complainant. Ms Bright explicitly tells Mr Dale that she only wishes to discuss the allegations and will not ask the complainant any questions. When the complainant disclosed the allegations during the subsequent call, Ms Bright immediately begins to question her as to when and where it occurred rather than to enquire into the complainant's welfare. My distinct impression was that Ms Bright's conduct appeared dismissive, sceptical, and centred on a pre-existing general disregard for the allegations. It is at least understandable that Ms Bright's support for Mr Murphy may provide context to the complainant's prior lack of disclosure of the conduct to her mother. 27. Ms Bright repeatedly tells Mr Dale the complainant was safe, and Mr Murphy had never hurt her, and says while on the phone that Mr Murphy "would never do that" – again, explicitly vocalising her disregard for the allegations and apparent support for Mr Murphy. Ms Bright also said that "she's never been with no one there but, like, she's only stayed with my mum, [the complainant] never slept anywhere else". This comment was indicative of Ms Bright's willingness to present a favourable narrative for Mr Murphy. 28. Similarly, Ms Bright continued to declare to Mr Dale that the complainant had never been left alone with Mr Murphy, and that she was always around and with her every day, in another attempt to eliminate the opportunity that Mr Murphy had to commit the offence. 29. Ms Bright's refusal to accept the allegations, and her continued support for Mr Murphy was clearly and repeatedly expressed throughout both recorded phone calls. Despite her daughter telling her directly what Mr Murphy did, Ms Bright continued to maintain that "it doesn't make sense to me why she would say something about him, because he would never do that". Ms Bright's persistent expressions of disbelief during these calls can be compared with the equally definitive and conflicting statements that attest to the complainant's honesty. She repeatedly says "[the complainant] doesn't lie I know that". Similarly, Ms Bright stated that she agreed that the complainant knows right from wrong and was "not silly and she knows people and their vibes, she knows good people from bad". 30. That evidence was indicative of the internally conflicted nature of Ms Bright's evidence. While she acknowledged the complainant's credibility, honesty and reliability, agreeing that she does not lie, she refused to accept the allegations against Mr Murphy, and manufactures circumstances to demonstrate a lack of opportunity for Mr Murphy to have engaged in the offending conduct. 31. Conversely, Mr Dale established his relative lack of partisan rhetoric, conceding during the first call that the complainant needs her mother and that she missed her. Mr Dale also referred to his willingness to co-parent with Ms Bright. Similarly, Mr Dale said in response to Ms Bright, as she discussed that the complainant needed them both in her life: "that's what I'm saying… she does need to see you because she misses you". Mr Dale also had sufficient insight to concede, in his words, that he hated Mr Murphy, but that his views remained irrelevant, and that the complainant's welfare was the only important consideration. 32. In summary, I find that Ms Bright's evidence on these issues was manufactured with a view to eliminate any opportunity that Mr Murphy may have been alone with the complainant. The evidence was contrived, and I reject it. It, therefore, does not cast any reasonable doubt on the evidence I heard from the complainant. 33. As to Mr Murphy's evidence, I likewise find that it does not raise any reasonable doubt about the complainant's evidence. He gave evidence in absolute and unequivocal terms that he was never alone with complainant. For the same reasons as described in respect of Ms Bright, and considering all the living and other circumstances as set out above, including his attendance at the premises where Ms Bright and the complainant were residing at the relevant time, the evidence is implausible, and particularly so for someone who described themselves as a "father figure", being the identical expression Ms Bright used in her evidence in describing Mr Murphy. In any event, in cross examination, Mr Murphy said that he never checked on the kids because "that's their mother's job". Accordingly, his evidence was internally inconsistent. 34. It is implausible that, in the circumstances as I have described them, Mr Murphy could be so certain in his ability to account for every moment that he had spent with the complainant as to then say he was never alone with her. It defies belief. It makes no sense, on the evidence, why it would have been the case, and why a detail like this would have, in those circumstances, registered in one's memory. I was left with one impression of the evidence, namely, that it was designed and manufactured to eliminate the possibility and opportunity for Mr Murphy to have engaged in the offending conduct. For these reasons, because he was, I find, not telling the truth about his contact with the complainant, he is an unreliable witness and I therefore reject his evidence denying the offending conduct. Expressed another way, his evidence therefore does not raise any reasonable doubt about the evidence adduced in the Crown's case. 35. It was also submitted that Mr Murphy's criminal antecedents show that he has never been convicted of any sexual-related offending, and, therefore, it would be unlikely he committed an offence of the type alleged in these proceedings. In this sense, it was submitted that there was room for a character-type direction. That direction is ordinarily in terms that an accused person's good character is relevant to a consideration of whether they are likely to have committed the offence against them, but it is also relevant in an assessment of the truthfulness and reliability of the evidence the accused may give at trial. 36. Although the page length of a person's criminal antecedents is not necessarily informative, in the case of Mr Murphy his antecedents run for 38 pages. More importantly, his antecedents reveal he has served multiple terms of imprisonment and community-based orders, including for serious violent offending and malicious damage. In 2017, he was convicted of an offence of firing a firearm at a dwelling house with disregard for safety and was consequently sentenced to a term of imprisonment of 4 years and 3 months. 37. In the circumstances, I do not find that there is any scope for the application of an amended form of character direction. Mr Murphy's record revealed a history replete with serious offending and, therefore, this does not make it unlikely he committed the alleged offence, even though it is a different type of offence to those set out in his record. I have not used this information in a way which supports or bolsters the Crown's case, such as in a tendency sense. Rather, I do not consider I can use the information, adduced in Mr Murphy's own case, as a reason to raise reasonable doubt about the evidence adduced in the Crown's case. 38. It follows from this analysis that I have concluded there is no rational hypothesis or reasonable possibility consistent with Mr Murphy's innocence. ORDERS 1. For these reasons, I am satisfied that the Crown has proved each of the elements of an offence against s 66DA of the Act beyond reasonable doubt. I enter a verdict of 'guilty' and convict Mr Murphy of the offence. 2. The proceedings will be adjourned for sentencing on a date convenient to the parties. ********** Amendments 09 July 2024 - Amended formatting. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2024