District Court New South Wales Medium Neutral Citation: R v DX [2011] NSWDC 98 Decision date: 21 July 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: I am satisfied beyond reasonable doubt that the accounts given by CY and SZ are true. Catchwords: CRIMINAL LAW - disputed facts on sentence hearing - whether to take into account tendency regarding uncharged acts - whether there was masturbation involved in the indecent exposure offences -offender had consulted a psychologist and as a result confessed to police - victims had different recollection of offences - defence claim of mistake in recall or innocent reconstruction by victims - prosecution case that offender's account should be rejected because he has no accurate recollection, he has a recollection but is deliberately not telling the truth or that he is deceiving himself as to the events - no reasonable possibility that offender's recollection of events could be true. Category: Procedural and other rulings Parties: Regina DX Representation: Mr ML Barr for the Director of Public Prosecutions Ms S Goodwin for the offender File Number(s): 2010/66496 Publication restriction: It is an offence to publish the name, or any information that identifies a complainant in this case. Judgment 1. Over thirty years ago DX committed acts of indecency towards two of his nieces. He has been charged with two offences on an indictment and there is a further list of charges to be taken into account concerning acts of indecency. 2. He has pleaded guilty to all of these charges and his case was listed for sentence before me. 3. There are three issues to do with the sentence proceedings which have to be resolved by me before I can proceed to sentencing DX. 4. One of the issues is whether I take into account what is described as tendency regarding uncharged acts. I can indicate at this stage that I do not propose to take into account other uncharged acts in support of the facts which I am asked to find so far as the other two matters are concerned. 5. Before describing what those other two matters are it would be helpful to briefly describe what the case is about. DX's family and the family of his wife's brother were very close in the 1970s and the 1980s. DX and his brother-in-law were both carpenters and used to work together. Both families used to holiday together. 6. In about 1992 DX's brother-in-law phoned him and accused him of sexually assaulting one of his daughters. DX acknowledged that that was true. It is clear that DX had been troubled by his behaviour and by the impact it had on his niece for many years. 7. Some years after he acknowledged the truth of the allegation he joined a church and decided to more publicly own up to what he had done. He consulted his pastors and a counsellor and was referred to a specialist psychologist. As a result of seeing the psychologist DX took himself to the police and confessed his crimes to them. 8. He provided the police with two written documents. One became exhibit E and one became exhibit F. He was also interviewed by police and the interview was recorded. 9. When the police contacted one of his nieces it became obvious that her recollection of what DX had done was different to his. Her recollection is different in that according to her what had happened was more serious than DX's recollection. Not only did DX acknowledge sexually assaulting that particular niece whose recollection I have referred to but he acknowledged exposing himself to that niece and her sister. Again on that issue of exposure, there is a difference of recollection between DX on the one hand and the two sisters on the other. The differences in recollection between the first niece and DX and between both nieces and DX about what happened on various occasions formed the basis of what I am asked to resolve. 10. The name of the fist niece is CY. The name of her sister is SZ. CY's allegations are that DX, when she was five or six years old, took her for a drive in his car. They went to a place which was somewhat remote. In that place DX exposed himself and masturbated. CY recollects that in addition to that he also asked her to suck his penis. DX acknowledges that he drove her to the place, although there was some dispute about how remote it was, but denies that he asked his niece to suck his penis. The most he said occurred was that he asked her to kiss it at one stage and that the head of his penis may have touched and just gone between her lips. The prosecution obviously says that that is a matter that has to be resolved by me. The question is whether I am satisfied beyond reasonable doubt on all of the evidence that what DX did was to insert his penis into his niece's mouth. 11. The second area of dispute concerns the indecent exposure offences. DX acknowledges that they were committed in his house when the two families were together downstairs and the two girls asleep upstairs. He acknowledges that he used to go to the toilet which was an en suite off the bedroom. The girls were asleep in the bedroom normally occupied by him and his wife. DX acknowledges that when he returned from going to the toilet in the en suite he would not zip up his fly but deliberately leave his penis exposed. On the other hand CY's recollection is that it was not just exposed but that he was masturbating in their presence. SZ's recollection is that he was playing with his penis. The prosecution says that masturbating in the presence of the two girls would be a more serious version of the offence than simply exposing himself. It invites me to be satisfied beyond reasonable doubt that what DX did in addition to exposing himself on those occasions - it occurred more than once - was to masturbate in the presence of the two girls. 12. The prosecution was represented by Mr M Barr of counsel as Crown Prosecutor and DX was represented by Ms S Goodwin of counsel. Both counsel have been of great assistance in the presentation and testing of the evidence and in their submissions. 13. Mr Barr called CY and SZ as well as calling DX's wife, Mrs DX. Ms Goodwin called her client. 14. In general terms CY asserts that what happened was that DX inserted his penis into her mouth and she also asserts that he masturbated in the bedroom. Mr Barr argues that both CY and SZ were consistent and believable in what they had to say and that I can accept their evidence beyond reasonable doubt. Ms Goodwin argues that I cannot be satisfied beyond reasonable doubt about their evidence because they should be regarded as not untruthful witnesses but unreliable witnesses. 15. It seems to me that I should first focus on Ms Goodwin's challenge to the credibility of both of the complainants. Ms Goodwin argues that CY had an inconsistent recollection as to various factors which she sets out in her written submissions including whether DX asked her to stand in front of him and watch him play with his penis before masturbating at the car, whether or not he asked her to touch his penis before putting it into her mouth and the number of times that his penis went into her mouth. 16. I do not regard any of those matters as providing a basis to reject the evidence of CY. So far as the first matter is concerned, all that was at issue was whether or not she happened to volunteer one piece of information in evidence-in-chief. The fact that she did not was appropriately explained by her. The second factor concerned really the order in which events occurred. It would not surprise me that a person in the position of CY may not be exactly sure of the order in which events occurred over a minute or two but still be certain about the central allegation. I do not regard there being any inconsistency between her accounts of how many times the penis went into her mouth. 17. Ms Goodwin argued that CY's recall was mistaken or had been innocently reconstructed and that there were errors in the accuracy of her memory. Ms Goodwin pointed to questions and answers about collateral matters such as the colour of a car which DX had driven her in; the type of car which her own father drove at the time; the times that her father and uncle left for work; the colour of a singlet worn; the layout of the bedroom. I do not regard these matters as being significant enough to impact on the reliability of CY so far as her evidence of the central events is concerned. They are really collateral matters which may have had far less impact on her mind than the central matter. 18. Ms Goodwin drew my attention to some evidence about CY and SZ discussing the incidents. What was clear, however, was that, once the matter came to proceedings being brought, they did not discuss the detail of their accounts with each other. 19. Ms Goodwin drew my attention to SZ's recollection of what her client was doing in the bedroom and whether or not he was actually masturbating. I have looked at the evidence of SZ on that point and I am satisfied that what she recollects is consistent with DX masturbating in her presence. One matter that supports that is her recollection that he used the word masturbating on one occasion. She said that she could see him through the reflection in a mirror, which was in the room, " playing with his penis ". Her recollection was that her uncle would come out of the toilet " with his penis hanging out and touching it and him coming and trying to ask me to touch it ". She did not touch it. What she saw was her uncle over by the mirror and she " glanced up and looked and saw him looking and then sort of, you know, took my eyes away because I found it revolting ". When cross-examined by Ms Goodwin about whether she actually saw him masturbate she said " only saw him shaking it, whether that is called masturbating or not, call it what you want, shaking it, playing with it yeah ". She added that she now knows " what masturbation is now, but back then it was like shaking it ". 20. I am satisfied beyond reasonable doubt that the evidence that she was giving was to the effect that DX was masturbating in her presence. 21. I found both CY and SZ to be impressive and articulate witnesses. They were clear in their accounts and in my opinion not damaged in cross-examination. 22. When Ms Goodwin called her client, DX, his account was consistent with there being no deliberate insertion of his penis into CY's mouth in the car incident and there being no masturbation on the occasions where he exposed himself in the bedroom to CY and SZ. 23. Mr Barr crossexamined DX extensively about his recollection and about what he asserted were inconsistencies in his accounts given over time. Mr Barr's case is that I should reject DX's account for one or more of three reasons. One reason was that DX apparently has no accurate recollection at all so far as his account in court is concerned. Another basis would be that DX does have a recollection but is deliberately not telling the truth. A third basis for rejecting DX was that DX was in effect deceiving himself as to what had actually happened between him and his nieces. 24. In his crossexamination Mr Barr asked questions about the two documents which I referred to which DX had given to the police. Exhibit F was the first document in time which DX had created. Some weeks later he created the second document which became exhibit E and he acknowledged that he had put more thought into the second document which should be more accurate. However, it appeared in cross-examination that some of the things which were contained in the second document were, according to DX, not true. Specifically he was asked about the masturbation in the bedroom occurring after the car incident and an assertion in the later document that effectively in the bedroom he had asked CY to hold his penis. He acknowledged that. My note is to the effect that DX said that is what I wrote but that is not what it means, I did not ask her to hold it in the bedroom. He acknowledged that what he had written in the second document never happened. Asked why he wrote it he said he was " pretty confused ". It was hard to remember. He agreed that he now says that that document was wrong. 25. When he was interviewed by the police, which was after he had provided both documents to them and occurred on 10 March last year, he was asked whether he was " aware if the penis actually went into her mouth " referring to the incident with CY in the car. His answer was, " It, it could have, I don't know, I really don't know ". Asked a little later whether his penis went into her mouth his response was, " I, I'm not, I, I'd say, I'm not sure, I'm really not sure, you know". Asked whether CY had sucked his penis he did say a little later, "No, not, no, not what I can remember, no ", and went on to add, " No, I'm not saying that's not true, I, I try, I try to remember every detail ". He did make it clear that he denied masturbating in the bedroom. 26. When he was cross-examined by Mr Barr he was asked about one of the answers I have just quoted - to the effect that, " I'm not saying that that's not true " - and part of his answer was, " That's how I think now too ". A little further on he said, " I'm not saying it's not true ". 27. DX also acknowledged in cross-examination that his memory was very sparse and that it was faded and that it was some twenty-five years since the events occurred and he was trying to remember. He did say that he felt lousy and uncomfortable during his interview. I saw the interview. He did ask for some water at some stage but he did appear to me to be concentrating and giving attempts to give articulate answers. 28. The basis for Mr Barr's submission about DX deceiving himself, this series of questions and answers at T106 to 107: " Q. You see, what I'm suggesting to you is that because of what you did, you've tried to put all of this behind you, and you just don't remember what happened at the time? A. I remember what happened at the time. Q. Alternatively I'm suggesting that you're deceiving yourself about what actually happened? A. This could be true. Q. Because what you did, even on your own evidence, is a terrible thing to do? A. That's right. Q. And something that you would be ashamed of? A. I was. Q. And something that I suppose you could hardly believe that you did it? A. That's true ". When Mr Barr went on to suggest that he had talked himself into a version of events DX said that the version he wrote in his statement was as he remembered it. Asked more directly whether he was in effect deceiving himself about what had actually happened he said that he did not " set out to do that ". 29. I do not regard DX as telling lies. However I have grave reservations about his recollection and I think it likely that he is deceiving himself. The matters which I have referred to so far as the inconsistencies are between his statements and what he says occurred now; his acknowledgments of assertions by the complainants that could be true; his faded memory and his acknowledgment of self deception to my mind combine to render his evidence on these specific issues completely unreliable. 30. I do not accept his evidence for those reasons. I do not regard there being a reasonable possibility that his recollection on those specific accounts could be true. I therefore am satisfied beyond reasonable doubt that the accounts given by CY and SZ are true. ********** 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: 25 August 2011