District Court New South Wales Medium Neutral Citation: R v MM [2018] NSWDC 181 Hearing dates: 29 January to 19 February 2018 Date of orders: 09 March 2018 Decision date: 08 March 2018 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: See Appendix 1 Catchwords: CRIMINAL LAW – Judge-alone determination – Child sexual assault - six complainants and multiple charges – 77 counts – grandfather – step-grandfather – assault filmed – grooming - supply drugs to groom child – ongoing abuse – blackmail victims – indecent assault "with" or "towards" Legislation Cited: Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985 Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Crimes Act 1900 Eades v DPP (NSW) [2010] NSWCCA 241; (2010) 77 NSWLR 173; (2010) 203 A Crim R 136 Fleming v The Queen (1998) 197 CLR 250 McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527 R v Chonka [2000] NSWCCA 466 R v Manson (NSWCCA, 17 February 1993, unreported) R v Nelson [2016] NSWCCA 130 R v Orsos (1997) 95 A Crim R 457 at 460 R v Page (unreported, NSWCCA, 25 November 1991) Texts Cited: Queensland Criminal Code Category: Principal judgment Parties: Regina (Crown) MM (Accused) Representation: Counsel: DPP: Mr Michael Fox of Counsel Accused: Ms Linda McSpedden of Counsel Solicitors: Douglas & Ford Criminal Law File Number(s): 2015/00181812, 2015/00220576, 2015/00220588, 2015/, 2015/00220622, 2015/00223091, 2016/00049614 Publication restriction: Non-publication order re accused's name, the identity of each of the complainants or any matter which is likely to lead to the identification of such complainants, and the identity of various family members and relatives of the complainants. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials. Judgment 1. HIS HONOUR: At the outset of today's proceedings, I wish to make a number of observations. These are remarks and an explanation of the reasons for my deliberations and verdicts in a judge-alone trial. As will become clear, there are 77 counts in the indictment which was presented and there are complaints emanating from six separate complainants. 2. A very substantial deal of material was tendered in the course of the prosecution case which, although voluminous in both text and in listening time so far as recordings were concerned, was not ultimately the subject of any detailed submissions. This has necessitated a considerable attention to detail in the course of deliberations in order to address detail which had not been specifically addressed during the course of the trial. There were, and in some cases remain, a considerable number of defects in the original indictment which was presented. This required a substantial number of amendments being sought and leave being granted for such amendments. Other defects in the indictment have remained even in its now amended form. 3. As will become clear, charges have been preferred with regard to some allegations which require consideration of legal concepts of consent, notwithstanding that the allegations relate to a child under the age of legal consent. These, and other issues, have created complications in my deliberations regarding the question of the guilt of the accused with respect to the various accounts and have, accordingly, led to a judgment which is anything but succinct. 4. Despite the time which has elapsed since the finalisation of submissions and subsequent legal argument regarding the indictment, the court is not in a position to simply provide a summary judgment and to hand down reasons in a form ready to be published. I provide these introductory remarks by way of explanation for the fact that my remarks and reasons will take a longer period to deliver than might be viewed as desirable. 5. Before I proceed, I should remind the press that there are non-publication orders in place. I do not propose to anonymise the names in the course of delivering the judgment. I will read the full names. 6. On 29 January 2018, MM was arraigned in the District Court at Wollongong in respect of 77 counts in an indictment alleging a variety of different acts of sexual activity with numerous children, as well as ancillary conduct relating to the production and possession of child pornography or child abuse material, namely video and audio recordings and still photographic images. With respect to each of the 77 counts in the indictment, the accused pleaded not guilty. The accused had elected for a judge-alone trial and because of the graphic nature of the video recordings which were intended to be tendered, the Crown consented to such election. In that circumstance, there was no judicial discretion to be exercised and the trial thereafter proceeded as a judge-alone trial before me until 19 February 2018. 7. Thereafter, and in the course of my deliberating with respect to returning verdicts, the hearing was relisted on 27 February 2018 in order to hear submissions from both parties regarding a number of apparent defects in the indictment. It was also relisted for the purpose of clarifying the relevant contents of a DVD disc (Exhibit Y) which had been tendered and which contained additional images to those which had been referred to in the course of the trial and submissions. 8. On 27 February 2018 the situation with respect to the evidence which had been admitted was clarified and I heard submissions with respect to a substantial number of amendments to the original indictment which were then sought by the Crown. Some of these were opposed. Ultimately, the Crown was granted leave to amend the indictment in the various respects which were sought. My reasons for granting that leave and permitting the amendments are set out in my judgment of 27 February 2018. 9. With respect to the counts in the indictment which involved a prescribed sexual offence, the identity of each of the complainants or any matter which is likely to lead to the identification of such complainant is prohibited from publication by virtue of the provisions of s 578A of the Crimes Act 1900. The circumstances of the nature of the relationships and the connection with the accused by the various complainants is such that identification of the accused or his wife by name is a matter which is likely to lead to identification of the various complainants. In such circumstances, his identity is thereby also prohibited from publication, and absent the application of any of the subsections set out in s 578A(4), unless and until any of those applications are made, his identity is similarly not to be published. Subject to any further order, such restrictions on publication will extend to the various family members and relatives of the complainants. TRIAL BY JUDGE ALONE 1. Section 133 of the Criminal Procedure Act 1986 provides for a trial by a judge alone. Subsection (2) requires that the judge must include in his or her judgment the principles of law that the judge has applied and the findings of fact on which the judge relies. The requirements of a trial judge sitting alone as to the giving of reasons were considered by the High Court in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438. A trial judge is required to summarise the crucial arguments of the parties, to formulate the issues for decision and to resolve any issues of law and fact that need to be determined. To comply with ss. 133(2) and ss. 133(3) of the Criminal Procedure Act and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law. ROLE AS A TRIBUNAL OF FACT 1. As the accused has pleaded not guilty and elected to proceed to a 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 verdict according to the evidence. As the tribunal of fact, I am required to make findings of fact from the evidence that has been presented and then to apply the relevant legal principles to those findings of fact. The findings of fact must be drawn only from the evidence that has been presented. There can be no intrusion into fact-finding by considerations of sympathy, bias, prejudice or any other emotion. BURDEN OF PROOF 1. It is convenient to start with some general principles. The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. In a criminal trial there is only one ultimate issue: has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty. 2. Although an accused is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the specific offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute. The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged. 3. In the present trial the accused did give evidence. That does not alter the onus of proof which rests upon the Crown throughout the trial. The alternative explanation for some aspects of the evidence in the trial which was advanced by the accused does not in any sense raise an onus or burden upon him. It remains for the Crown to negative exculpatory explanations which have been advanced by the accused and to negate such possible explanations beyond reasonable doubt. INFERENCES AND CIRCUMSTANCE OF EVIDENCE 1. I may in my role as the judge of the facts draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such an inference is a reasonable inference that can properly be drawn from those facts. The present case rests variously on direct evidence from the complainants with respect to most counts in the indictment. However, there are surrounding circumstances from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence, I remind myself of some fundamental principles. 2. How convincing and reliable a circumstantial inference may be depends upon the number and nature of the basic facts relied upon by the Crown when considered as a whole. The question as to whether all of the evidence in a particular respect leads to an unavoidable conclusion requires careful consideration. In the present matter the Crown relies upon circumstances relating to the existence of facts in support of the direct evidence of the complainants. It also relies upon a combination of circumstances in support of identified tendencies. I remind myself of the need to be satisfied beyond reasonable doubt of the existence of any fact or circumstance which is critical to a finding of guilt. 3. Other circumstances may be relied upon, in combination with other established facts, in determining the ultimate question as to whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused beyond reasonable doubt with respect to any particular count. WITNESSES 1. It is for me to assess the witnesses called in the trial and to decide whether they are reliable. Reliability depends upon two different but sometimes overlapping considerations. 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 the witness has made on me in my capacity as the tribunal of fact. COMPLAINT 1. The Crown seeks to rely upon evidence of complaint with respect to the individual complainants. If I find the complaint was made in the ways alleged by the Crown, I can use evidence of what was said in the complaint as some evidence that the incident, the subject of the particular charge being considered, did occur. That is, I can use it as some evidence independent of the evidence given by the individual complainant. A tribunal of fact is entitled to consider whether a complaint is made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by a complainant and is more likely to be accurate. Ultimately, it is a matter for me as to whether I draw that conclusion in this trial with respect to any particular allegation. If complaint evidence is used as some evidence in relation to a specific count, what weight is to be given to the evidence is a matter for the tribunal of fact. CONTEXT AND TENDENCY EVIDENCE 1. In the course of the trial the Crown led evidence of other acts of alleged misconduct by the accused in addition to the acts relied upon in direct proof of the counts in the indictment. The evidence of other acts in some regards was led to place the allegations in what is said to be a realistic and intelligible context. Context in this regard refers to the history of the conduct by the accused towards a particular complainant. Context evidence does not thereby establish a tendency. One must not reason that because the accused may have done something wrong or improper to a particular complainant on another occasion, that he therefore must have done so on the occasions alleged in the indictment. 2. However, the Crown does seek in a number of respects to establish a pattern of behaviour that would reveal that the accused has certain specified and identified tendencies. Evidence suggesting that the accused had a particular tendency can only be used if I make two findings. The first finding is that one or more of the acts occurred. That finding can only be made if I am satisfied beyond reasonable doubt that it did occur. In making that finding I am entitled to consider all of the evidence rather than the acts in isolation. If I am satisfied beyond reasonable doubt that the acts occurred, I am entitled to go to a second consideration, namely whether from that act or acts that I have found proved I can conclude beyond reasonable doubt that the accused had the particular tendency that the Crown alleges. If I cannot draw that conclusion beyond reasonable doubt, I must put aside any suggestion that the accused had the claimed tendency. 3. If I find that an identified tendency exists beyond reasonable doubt, I may use the fact of that tendency in determining whether the accused has committed any of the particular offences charged. I should give such weight as I think the tendency deserves in the context of all of the evidence before me. It would be wrong to reason that because the accused had committed one crime or other acts of misconduct, that he is therefore generally a person of bad character and for that reason must have committed the offence or offences charged. In a trial of the nature of the trial before me, I must not substitute any finding with the accused had a sexual interest in one or other complainant for the evidence of the specific allegations contained in the indictment. The Crown is not charging a course of misconduct, but is charging specific allegations. I am required to consider whether each specific charge is proved beyond reasonable doubt before any verdict of guilty can be returned. BACKGROUND 1. The accused MM was born in Germany in 1947. He is now 70 years of age. He came to Australia with his parents in 1953 and married his first wife in 1966 at about 19 years of age. After approximately 16 years of marriage the accused and his first wife separated. 2. In 1984, the accused married his second wife. At the time of this second marriage both the accused and his second wife each had children from their respective first marriages. The accused and his first wife had two children, a son (S1) and a daughter (D1). The accused's second wife had three daughters from her first marriage, SD1, SD2 and SD3. When the accused and his second wife married in 1984 the three girls of his new wife were approximately 16, 14 and 10. They lived together with their mother and the accused, and grew up as the stepdaughters of the accused. 3. A number of the allegations brought in relation to the accused relate to his dealings and interaction with the two daughters of his own son, S1. Each of those girls, Complainant 2 and Complainant 3, are his biological grandchildren. A third complainant is another biological granddaughter, Complainant 5. Complainant 5 is a daughter of the accused's own daughter, D1. 4. Two additional complainants, Complainant 1 and Complainant 4, are respectively the daughter and son of SD2, one of the accused's stepdaughters. Whilst strictly described as his step‑grandchildren, they have grown up to all extents and purposes as his grandchildren and were treated as such. They referred to the accused as 'Opa', similar to his other grandchildren, that being the German affectionate name for "Grandpa". 5. The sixth complainant was also, effectively a relative, by marriage. Complainant 6 was a niece of the accused's stepdaughter, SD1. Complainant 6 was a daughter of SD1's brother-in-law (BL1). 6. The evidence at trial clearly established that all relevant times the accused lived with his second wife at a home on the NSW South Coast. His son, D1, and D1's wife lived together with their children, Complainant 2 and Complainant 3, in central west New South Wales. Complainant 2 was born in 1994 and her sister, Complainant 3, in 1996. 7. SD2 and her husband lived together with their children at a township to the south of Wollongong. Complainant 1 was born in 1999 and her brother, Complainant 4, in 2001. 8. D1 and her husband resided in Wollongong, together with their children. Their third eldest, Complainant 5, was born in 2003. 9. BL1 was the brother-in-law of the eldest step-daughter of the accused (SD1). BL1 and his wife lived with their children in the western suburbs of Sydney. Their eldest daughter, Complainant 6, was born in 2001. 10. The alleged conduct of the accused towards each of the complainants is said to have occurred at different times and in a variety of different locations. The accused was evidently an interactive grandfather who took his various grandchildren boating and fishing, as well as camping and on other holidays. He and his second wife regularly had Complainant 1 and her brother, Complainant 4, stay at their home, both on ordinary weekends and for extended periods of time during school holidays. It would appear that both of the parents of Complainant 1 and Complainant 4 worked, and while the estimates as to the regularity of visits varied somewhat, it is clear that Complainant 1 and Complainant 4 spent many extensive periods of time at their grandparents' home whilst their parents were working. 11. The accused owned a caravan, which was established on the evidence to be worth in the vicinity of $30,000 at the time discussions regarding its sale were held in 2015. It was of sufficient substance to have not merely sleeping facilities but also to have its own shower and toilet. Various diagrams were drawn in the course of the trial regarding the layout of the caravan although no photographs of its interior were tendered in evidence. I am of the impression that it was a modern and well-equipped caravan. It featured as a location with regard to numerous of the complaints made regarding the conduct of the accused. 12. The allegations ultimately brought against the accused included allegations regarding the supply of cannabis and prescription drugs, frequently against the background of the supply of alcohol to his grandchildren. (I should note in this regard that I use that term in these remarks as also including his step-grandchildren). 13. A deal of evidence was led in the course of the trial which was intended to provide contextual background evidence as to the nature of the relationship enjoyed by the accused with each of the complainants as well as more specific evidence which was sought to be relied upon as proving a tendency to act in a variety of ways. The identified tendencies included activities which would fall within the broad categorisation of "grooming" including the provision of money, material goods, drugs and alcohol to the children as well as informing some of the children that he would take photos of them to facilitate their introduction to a modelling agency. 14. The Crown case also sought to paint a picture of the accused as making sexually explicit and/or inappropriate comments to and about the children with regard to their bodily development. I will come to the detail in due course, but the evidence also revealed the fact of a large number of communications by SMS messaging from persons referred to as "Bob", "Toey" and "Lyn", and whether or not those persons are real or fictitious is an issue which will need to be determined. 15. Some of the evidence that was led regarding comments and actions by the accused historically might be viewed in some respects as revisionary in the sense that some comments or activities which might have been perceived to, in effect, be "harmless" at the time they were originally made may have been retrospectively viewed somewhat differently in light of the subsequent allegations raised with respect to the accused's conduct. This possibility will need to be carefully considered in due course. CHRONOLOGICAL OVERVIEW 1. Whilst it is necessary to go to the individual complaints which form the basis of the specific counts in the indictment, a chronological overview provides a contextual background to the allegations which may not be immediately evident when focusing on the individual complainants. 2. The first allegation of sexual impropriety chronologically relates to his step-granddaughter, Complainant 1. She dates her first sexual interaction with her step-grandfather at a time prior to her commencing school. Complainant 1 commenced school in 2005 at the age of 5. She told police in June 2015: "Before I started school (MM) only ever touched me by putting a finger in my vagina or rubbing my vagina…" Allegations of either sexual assault or intercourse by virtue of digital penetration at a time prior to the child commencing school do not form the basis of any count in the indictment as presented. This evidence was led and admitted without objection as context and tendency evidence. 3. Complainant 1 also told police of an incident that she remembered in 2005 once she had started school where she was taken in her grandfather's boat to a place referred to as 'the Basin' where she was taken into the bushes and her vagina was touched. This particular incident which she specifically described is also not the subject of a count in the indictment and was again relied upon as context and tendency evidence. 4. Complainant 1 also described an action where her grandfather would lift her up onto his shoulders and spin her around and blow hot hair between her legs. As with the above circumstances, this act was not relied upon as the basis for a count in the indictment. 5. In due course, the allegations raised by Complainant 1 included assertions regarding the taking of videos on a camera which her grandfather possessed, of her engaging in sexual activity with her grandfather. Whilst I will come to the detail of the allegations regarding video filming of activity later in these deliberations, there was no specific evidence adduced from Complainant 1 as to the earliest occasion on which she claimed videoing to have occurred. 6. However, if accepted, indirect evidence of the filming of Complainant 1 when she was at a very young age was adduced from the accused's granddaughter, Complainant 2, the elder daughter of his own son. Complainant 2 gave evidence of the accused showing her a movie in which she could observe Complainant 1 lying naked on a bed in the accused's caravan. The accused came into view in the movie and was observed by Complainant 2 to be naked with an erect penis. Complainant 2 described further detail of what she saw in those video images but significantly expressed the opinion that Complainant 1 appeared to be only about 4 or 5 years of age and was still sucking her thumb in the recorded vision. If the assertion of Complainant 2 as to Complainant 1's age is accepted, from the events described the recording would have been made sometime between about August 2003 and August 2005. 7. Complainant 2 claimed to have been shown the video depicting Complainant 1 when she, Complainant 2, was around 11 or 12 years of age. Complainant 2 also described interaction with her grandfather which, if accepted, might be perceived as grooming or enticing her to participate in sexual activity. These occurrences, if accepted, occurred in the period between about 2006 and 2008. 8. Complainant 2's younger sister, Complainant 3, who was born in 1997, claims to have been shown a photo of a naked female child with her vagina exposed and being told that she could earn money if she posed in a similar position. Complainant 3 said that she was 8 or 9 years of age when that event occurred and that whilst she remained clothed, her grandfather had manipulated her arms and legs in different poses as an example of what she might do whilst naked. These events are said to have occurred during either 2005 or 2006. I note in passing that photographs depicting Complainant 1 in a strikingly similar position to that described by Complainant 3 were ultimately recovered by police from a digital memory card in the possession of the accused. 9. Another allegation of Complainant 2 of herself being photographed naked whilst in her grandfather's motor vehicle was said to have occurred in circumstances which would place the event in January 2008. 10. Complainant 1 asserts the first time that her grandfather had what she described as "full intercourse" with her was, if the surrounding circumstances and her recollection of time is accurate, in the first half of 2009. She gave a detailed description of intercourse in her grandfather's first white Nissan Patrol motor vehicle and, if her evidence in that regard is accepted, the events took place prior to the disposal of that motor vehicle in May 2009. (I note that the accused owned two white Nissan Patrol motor vehicles and I will come to that detail in due course). 11. In around 2008 or early 2009, a further grandchild alleges sexual interaction with the accused. Complainant 4 (the younger brother of Complainant 1) subsequently claimed that when he was about 7 years of age, his grandfather had made him grab his grandfather's penis and move his hand up and down for a short period on an occasion that they were both in the accused's caravan. 12. In 2009, a specific allegation regarding the alleged conduct of the accused was raised by Complainant 5. This was the first complaint actually raised by any of the grandchildren. She was 6 years of age at the time and in circumstances which I will details later in these deliberations, she complained that her grandfather had licked her on her private part which she described as her "wee wee". That allegation was recorded in an interview by police with the child in 2009. It would appear that no charges were laid at that time and there is no evidence as to what, if any, investigation ensued. 13. Sexual activity involving both Complainant 1 and Complainant 4 is alleged to have occurred repeatedly on occasions between about 2008 and 2011. Some of the events described are said to have taken place in a bush area near Nowra in the accused's motor vehicle. Complainant 4 was about 9 years of age and his sister, Complainant 1, was 11 or 12 years of age. According to the complaint made by Complainant 4, the accused gave him, that is a 9-year old boy, a Viagra tablet and he was then required to film sexual intercourse between his sister and the accused. 14. In addition to sexual activity being described as having occurred in the motor vehicle, both children, Complainant 1 and Complainant 4, gave detailed descriptions regarding sexual interaction with their grandfather in an attic area at their grandparents' house. I will come to the detail of those specific allegations in due course. A substantial number of counts in the indictment relate to such allegations. Both children gave evidence of the sexual activity being recorded on camera and in due course a video recording was recovered by police in the course of their investigation which, subject to some observations which I will make in due course, appears to depict sexual intercourse between the accused and his step-granddaughter as well as sexual interaction involving Complainant 4. 15. It is the Crown case that the video recordings were likely made in approximately June 2012, although the ambit of the counts as pleaded in the amended indictment is somewhat wider. According to Complainant 1, filming and photographs were also taken at other locations between about 2013 and 2015. 16. During a period in either 2013 or 2014, there is also said to have been a degree of interaction between the accused and another child, Complainant 6. Complainant 6 was, as I have described earlier in these observations, the niece of one of the accused's stepdaughters. The accused had been involved in carrying out renovations at her parents' home and various interactions and discussion between the accused and Complainant 6 at a time when she was approximately 12 years of age are said to have a sexual connotation and they form the basis of additional counts in the indictment. OVERVIEW OF DEFENCE CASE 1. In his defence, the accused has advanced a positive case. He gave evidence and was cross-examined. As I have reminded myself in the directions which I am required to give myself, the fact that the accused elected to give evidence does not create any onus upon him. It remains for the Crown to negative exculpatory matters raised by the accused and the onus rests upon the Crown to establish the guilt of the accused with respect to the elements of the various counts beyond reasonable doubt. It is appropriate, however, to outline, at least in a general overview sense, the nature of the defence raised by the accused. 2. With respect to the vast majority of allegations raised by the various complainants other than Complainant 1 and Complainant 4, the accused denies that any activities of a sexual nature took place whatsoever with regard to the children. With respect to some specific actions, for example asking for a photograph of Complainant 6 in a bikini, he concedes that the act relied upon by the Crown did occur but asserts that it had no sexual connotation. 3. With respect to the allegations raised by Complainant 1 and her brother Complainant 4, the accused denies that any such activities took place other than acts of intercourse initiated by Complainant 1 when she was 14 or 15 years of age. Any sexual activity prior to 2015 (or 2014 in some respects in his evidence) with relation to Complainant 1 and/or her brother Complainant 4, the accused denies having occurred. His case was that he was effectively "forced" to have sex with Complainant 1 as a result of her demands and her effectively imploring him with "those sad eyes" and telling him "you've got to". His case was that he only did what she wanted him to do and that which she had initiated. With respect to SMS messages received by Complainant 1 and Complainant 4, the detail of which I will turn to later in these remarks, the accused claimed that they came from third parties to whom he had lent mobile phones. He denied that he was the author of any of those messages. SPECIFIC COUNTS 1. Against the background of the above general overview, I now turn to the specifics of the criminal acts which are alleged in the indictment. I do not propose to do so either in a chronological order or in the order in the indictment, but rather in what appears to me to be a logical fashion derived from the evidence. COUNTS 28 TO 61 (COMPLAINANTS 1 AND 4) 1. The high point of the Crown case derives from the discovery by police of three video files contained on a digital SD memory card which was seized during a search of the accused's vehicle. The digital recording of those three video files forms the basis of some 33 counts (28 to 61 inclusive) in the indictment. The accused's case concedes that video was filmed in the attic space at his home on an occasion when he had sexual intercourse with his step-granddaughter, Complainant 1. The Crown case, however, alleges that the activities depicted in the video recordings took place when Complainant 1 was under the age of 14 years, most likely in about June 2012 when she was still only 12. 2. The case for the accused is that the video was recorded in 2015 or, as he suggested in some parts of his evidence, possibly 2014. The significance of this difference is that it is asserted by the accused that Complainant 1 was 15 years of age and hence intercourse with her would constitute a different offence than that charged, namely an offence under s 66C(3) or s 66C(4) if in circumstances of aggravation. Notwithstanding the use of the terminology by the accused of having been "forced", it was conceded by Ms McSpedden, who appeared for him at trial, that such "forcing" could not approach any legal definition of duress. 3. In the event that the Crown fails to establish an element of the offence which has been charged, namely that Complainant 1 was under the age of 14 years, the Court would inevitably find the statutory alternative pursuant to s 66E of the Crimes Act 1900 made out and the accused would be found guilty of that statutory alternative. A major question for determination is, therefore, when the video file recordings relied upon by the Crown were in fact made. 4. A related question arises from the assertions by the accused in the course of his evidence that he believed that the video recordings had been "doctored". He specifically gave evidence that he believed that the appearance of the children had been doctored to make them look younger than they were and, whilst conceding that he had had intercourse with Complainant 1 in the attic of his home and that the activities viewed in the video had taken place, at one stage in his evidence he asserted that whilst the head and face in the video was indeed of himself, the physical body was not his and the vision of the penis was similarly not him. He claimed, with respect to the vision of the penis, that he was "not that big". 5. I am of the view, beyond reasonable doubt, that the passing suggestions of any doctoring of the video images are entirely baseless. On all of the available evidence, I am satisfied that the video recordings, found on the SD card in the motor vehicle of the accused, are genuine recordings which provide immutable evidence of his physical activity with and in the presence of his two step-grandchildren, Complainant 1 and Complainant 4. 6. I am satisfied beyond reasonable doubt that the suggestion that the videos were anything but genuine is a gratuitous suggestion made by the accused in an attempt to deal with conclusions as to the obvious youth of the children as observed in the video. The similarly gratuitous suggestion in the course of his cross-examination that the images of the penis and of the torso were not of himself were, in my view, disingenuous attempts to "muddy the waters." 7. In addition to being satisfied of the genuine and unaltered state of those video images, I make the following finding of fact in respect of which I am satisfied beyond reasonable doubt. First, the vision was shot in the attic space of the roof of the accused's home. Second, the images were filmed on an occasion which preceded 16 February 2013. That date is significant because of objective evidence in the trial and also a concession by the accused himself in the course of his evidence. 8. Prior to 16 February 2013 each of Complainant 1 and Complainant 4 were regularly in attendance at their grandparents' home. Concerns had been raised prior to that date within the extended family of the accused at earlier times because of allegations and complaints which had surfaced within the family regarding others of his granddaughters. I will come to the detail of those complaints in due course. However, despite those concerns being held by SD2 (Complainant 1 and Complainant 4's mother), the children had still been permitted to continue to visit the home of their grandmother and the accused. 9. However, on 14 February 2013, an incident occurred at Complainant 1's school, following which she and her brother went with the accused to his home on the South Coast on 15 February 2013. The following day, 16 February 2013, SD2 and her husband went to collect their children from the grandparents' house and to take them home. There was some form of confrontation, including physical interaction, between the accused and SD2's husband prior to the children being removed from their grandparents' home and departing with their parents. 10. Following the physical interaction to which I have referred, the accused made a complaint to local police about what he described as the safety of the children in the custody of their own parents. That complaint led to an attendance upon the family home of SD2 by officers of the NSW Police. The upshot of those circumstances was that Complainant 1 and Complainant 4 were never again permitted by their parents to go to their grandparents' home. 11. The accused, in his evidence, conceded that the children never again physically attended his home after this incident to which I have referred. This inevitably created a logical conundrum in the case advanced by the accused regarding when the video had been filmed. He steadfastly maintained that it was filmed in 2015 (or, as I have earlier indicated, possibly in 2014), a fact and assertion which would be impossible once one accepts that it was filmed in the attic of his home and that the children had never attended that home after February 2013. Confronted with documentation that unarguably established that the incident following which the children did not attend his home had in fact occurred in February 2013, the accused could offer no explanation. I am on that basis alone satisfied beyond reasonable doubt that the filming of the images in the three videos tendered (Exhibit Y) must have taken place prior to 16 February 2013. It can be noted that as at that date, Complainant 1 was 13 years of age and did not turn 14 until August 2013. 12. However, the evidence does not simply rest on that date alone. Evidence was led in the Crown case, both from Complainant 1's mother and also objectively through dental records and photographs taken by her orthodontist, that the child had previously had a substantial overbite and a prominent gap between her front teeth. This was the subject of remedial orthodontic treatment which commenced when she was 12 years of age and concluded after she had turned 14. Photographs had been taken and were tendered into evidence of Complainant 1's face with her lips apart and smiling on 31 August 2011 when she had just turned 12. Close-ups were also taken of her teeth, which clearly demonstrated the prominent overbite and also the substantial gap that she had at that age between her front teeth. 13. The report regarding her orthodontic treatment (Exhibit EEE) indicated that what was described as a twin-block appliance was fitted on 12 October 2011. The evidence established that this plate, or mouth block, was able to be removed. However, what were described as full-fixed appliances (or braces) were fitted by the orthodontist on 16 August 2012. Those braces on her teeth were not removed until 13 November 2013. Photographs showing Complainant 1 able to close her lips as a consequence of the overbite being dramatically rectified and also showing her smiling, with the gap between her front teeth completely absent, were taken on 29 November 2013 after she turned 14 in August of that year. 14. Clearly evident in the videos seized by police, still images of which were recorded and separately tendered, are images of Complainant 1 in the course of the sexual activity with her grandfather, in which the prominent gap in her front teeth is clearly visible. There is no full-fixed orthodontic appliance (braces) present on her teeth during the time that the video was recorded. I would, accordingly, be satisfied beyond reasonable doubt that not only was the video recorded prior to 16 February 2013 for the reasons that I have expressed above, but by reference to the orthodontic evidence, I would be satisfied beyond reasonable doubt that the video was filmed at least prior to 16 August 2012. As it happens, 16 August 2012 was just days after Complainant 1's 13th birthday. 15. In addition to the orthodontic evidence, there was opinion evidence led from both the child's mother and also from the police officer in charge of the investigation as to their respective estimates as to the ages of the children, as depicted in still photographs extracted from the video files. SD2 gave evidence that the box plate was worn when Complainant 1 was in year 6 and year 7 at school and that she got braces after that. She estimated the age of her daughter in the photograph that was shown to her in evidence - which was a slightly edited version without showing the pornographic or genital area of the images - and SD2 identified that image of her daughter as being prior to the orthodontic procedure. She thought that in the photo she was shown Complainant 1 looked around about 9 or 10 years of age and that therefore Complainant 4 would have been about 8. That recollection coincided in broad terms with the calculations that might be made from the precise dates provided by the orthodontist. 16. An opinion expressed by Detective Senior Constable Prior from the Child Abuse Squad of the NSW Police, who had 11 years' experience working for both the NSW Police and the Australian Federal Police in cases involving allegations of child abuse material and also extensive experience in viewing such material, was that the children in her opinion appeared to be respectively about 12 years of age and about 10 years of age. That opinion accords with my own perception from having seen the images of the children in the video. 17. In addition to those opinions and estimates, digital data was able to be recovered from thumbnail images with respect to each of the three videos on the SD memory card. With respect to each of the video files, to which I will give more attention to detail in due course, an image of the opening scene of each video is automatically stored as a still image, described as a thumbnail. Those thumbnail images had digital properties recorded indicating the date and time at which the videos were taken, according to the date put into the camera. Whilst such dates are capable of manual manipulation and alteration by the operator of a camera, the dates recorded in the properties, namely, 23 and 24 June 2012, are entirely consistent with the other objective evidence and the opinion evidence as to the ages of the children. The timing of the second and third videos, recorded as being ten minutes apart were, in the properties, completely consistent with the vision itself and with the length of the second video. 18. I am satisfied beyond reasonable doubt that the recordings were made when Complainant 1 was under 14 years of age, and for the reasons that I have set out in detail above, I would be satisfied beyond reasonable doubt that she was either 11 or 12 years of age. Her younger brother was of course 18 months younger than her, and such an age is consistent with his physical appearance in the video, including his lack of any pubic hair. Against the background of these factual findings, I now turn to the specific counts which rely upon the vision in the video files. 19. A detailed description of what can be observed in the three video files is set out in a summary document which was tendered in the trial and became Exhibit Z. Those summary descriptions were tendered as an aid to following the videos and I remind myself that the conclusions as to what one can observe remain a matter for me as the tribunal of fact. That having been said, having perused the videos in the course of my deliberations, as well as in court, there is nothing in the typed summaries with which I would disagree. 20. The observation is subject to one qualification namely with respect to the summary which had a portion blacked out and in respect of which agreement had obviously not been able to be reached in which it had been asserted that the accused was giving directions or instructions in the course of the video recording. I am of the view that those descriptions could well have remained in the summary document. In my view, the accused was clearly directing actions which should take place and giving instruction as to the positioning of bodies, ensuring the action was being recorded, and giving directions to Complainant 4 with regard to the actual filming of the physical sexual activity which was occurring in his presence. 21. I note that in addition to the vision that was being recorded on a fixed position camera, throughout the taking of the first video, other vision was being filmed, some at extremely close range, on a second camera being held mostly by Complainant 4. In the light of other evidence it is not insignificant that the second video being taken simultaneously with the actions recorded by the first camera was never recovered in any of the police searches. VIDEO FILE 1 (CONTAINED ON EXHIBIT Y) COUNT 28 1. Count 28 is a charge pursuant to s 61O(2A) of the Crimes Act 1900. The charge as amended pleads that between 17 September 2010, just one month after Complainant 1's 10th birthday and 16 August 2012, the date on which the permanent fixed braces were put in place by the orthodontist, the accused incited Complainant 1, then being a person under the age of 16, to an act of indecency with himself, he knowing that the act was being filmed for the purposes of the production of child abuse material. 2. For the reasons I have expressed above, I am satisfied beyond reasonable doubt that the acts in the vision which was recorded did occur within the dates pleaded. I am satisfied that the filming occurred in the attic area of the accused's home in the State of New South Wales. I am satisfied that the actions particularised, namely the child lying naked on her side adjacent to the accused, who was also naked, and her being viewed to masturbate the accused constitutes an act of indecency with the accused who clearly knew that the act was being filmed. Clearly the filming was for the purposes of the production of child abuse material. 3. The actions thus described were clearly, in my view, encouraged or incited by the accused. I am satisfied beyond reasonable doubt that he incited Complainant 1 to an act of indecency with himself; that he knew the act was being filmed; that it was being filmed for the production of child abuse material and accordingly I return a verdict of guilty with respect to that count. COUNT 29 1. Count 29 is a charge pursuant to s 66C(2) of the Crimes Act 1900 namely having sexual intercourse with a child above the age of ten years and under the age of 14 in the circumstances of aggravation, namely that she was under the authority of the accused. This count relates to the next sequence of vision of some 14 seconds in duration during which time Complainant 1, under the direction of her grandfather, the accused, sucked his erect penis. This act of fellatio falls within the statutory definition of sexual intercourse. Consistent with my findings regarding the age of the complainant, as I have expressed earlier, I find that she was 11 or 12 years of age at the time. I am further satisfied beyond reasonable doubt that Complainant 1 was in the care and under the supervision of her grandfather and accordingly was under his authority. With respect to the allegation in Count 29, there will be a verdict of guilty. COUNT 30 1. This count is similarly brought pursuant to the provisions of s 66C (2) of the Crimes Act 1900. Following the acts which give rise to Count 29, Complainant 1 was repositioned onto her back with her legs open. The accused is observed to roll onto his stomach and to put his head between her legs. He can then be clearly seen to be licking her vagina with his tongue for approximately 30 seconds. 2. This act of cunnilingus is clearly depicted and falls within the definition of sexual intercourse under the Crimes Act 1900. For the reasons already articulated, I am satisfied that the complainant was under 14 years of age and under the authority of the accused. With respect to Count 30 in the indictment, I find the accused guilty. COUNT 31 1. This count is also brought pursuant to s 66C(2) of the Crimes Act 1900. Following the acts I have described above, the accused then physically repositioned Complainant 1 closer towards him. He reached behind her to obtain a cushion and then placed it underneath her backside to elevate her slightly. He then commenced to have penile/ vaginal intercourse over a period of approximately two minutes. He can be observed to be pushing forcefully and Complainant 1 can be observed to flinch. During the sexual intercourse, a second camera being held by Complainant 4 can be observed filming in close proximity to the genitalia of the accused and also his sister. During the intercourse both the accused and Complainant 1 appear to give instructions to Complainant 4 to obtain a tube of lubricant which can be seen to be handed to Complainant 1. The complainant used the lubricant and appears to rub it in her own vagina as well as on the accused's penis. Thereafter the sexual intercourse continued. The hands of Complainant 4 can again be seen moving to take close up images of the act of intercourse. I am satisfied of the elements of the aggravated act of sexual intercourse pleaded in Count 31 and I find the accused guilty with respect to that count. COUNT 32 1. This count is again brought for an offence contrary to s 66C(2) of the Crimes Act 1900. It relates to the next discrete sexual activity which took place following a further repositioning. Complainant 1 is observed to get on all fours facing away from the accused who has sexual intercourse with her from behind. This is described as "doggy-style" in the summary of observations in Exhibit Z. During the course of this intercourse, Complainant 4 comes fully into view and continues to film the sexual activity on the second camera. He again places the second camera close to the genitalia of the accused and his sister in order to take close-up vision. The sexual intercourse in this position continues for approximately 1 minute 20 seconds. I am satisfied beyond reasonable doubt that the elements of the charge pleaded of aggravated sexual intercourse with a person under 14 years and under the accused's authority is clearly made out. There will accordingly be a verdict of guilty with respect to Count 32. COUNT 33 1. This count is brought with respect to an offence under s 66C(2) of the Crimes Act 1900. It alleges a further separate act of aggravated sexual intercourse. The accused is observed to lie on his left side whilst Complainant 1 lies effectively at right angles away from him with her body facing away from the accused's head and towards the direction of his feet. Her legs are apart and her right leg effectively straddles the torso and right leg of the accused. In this position the penis of the accused is openly visible to the angle being filmed by the camera, as his penis enters the vagina of the complainant. The arm of Complainant 4 can clearly be seen holding the second camera in close proximity. Intercourse in this position continues for approximately one minute and the accused can be observed thrusting his penis at a rapid rate. I am satisfied beyond reasonable doubt of the elements with regard to Count 33 and I find the accused guilty with respect to that count. COUNT 34 1. This count is again an allegation contrary to s 66C(2) of the Crimes Act 1900. After the intercourse described with respect to Count 33, the accused is clearly seen to give instructions and to roll away from Complainant 1 and lie on his back. At his obvious direction, she straddles him facing towards the camera and away from his face and inserts his erect penis into her vagina. She is then seen to lean forward in such a position as to provide a clear view to the accused of his penis entering her. In that position the accused takes the second camera from Complainant 4 and can be seen filming his penis in the act of sexual intercourse from close proximity whilst he holds the second camera himself. The sexual intercourse in this position again continues for a period of time approaching one minute. The accused can be observed to return the second camera to Complainant 4 and appears to give him further instruction regarding filming. Following that instruction, he can also be seen giving clear direction to Complainant 1 to sit upright whilst continuing to engage in intercourse and holding on to the rafters in the roof above her head so as to fully expose the front of her body to the fixed camera which was filming. 2. The act of intercourse relied upon in respect of this count in the indictment is clearly established as are the other requisite elements and I am satisfied beyond reasonable doubt of the guilt of the accused with respect to Count 34. COUNT 35 1. This count is yet a further count under s 66C(2) of the Crimes Act 1900. Following the above activity, the accused clearly instructs Complainant 1 to stand up. She turns and faces the accused who remains lying flat on his back. In this yet further position she is seen to hold his penis and to insert it into her vagina. After approximately 40 seconds of quite vigorous sexual intercourse, Complainant 1 is observed to get off the accused and sit on her backside, looking down at her vagina. I am satisfied beyond reasonable doubt of the essential elements of the allegation in Count 35 and I find the accused guilty with respect to that count. 2. Counts 28 to 35 which I have described above and in respect of which I have found verdicts of guilty in each case, encompass the sequence of physical acts depicted in the Video File 1 commencing with the inciting, and followed by seven separate acts in different positions of sexual intercourse with Complainant 1. Notwithstanding the detailed activities described above during the filming of the approximate eight minutes of video file one, and the activities of Complainant 4 in filming it, there does not appear to be any specific count in the indictment, as presented, relating to the sexual activity occurring in the presence of Complainant 4, nor relating to him being used as a cameraman. There is a procuring count embracing the first two video files, counts 60 and 61, to which I will come in due course. 3. In the circumstances of the existence of the physical video and the clear images of Complainant 4's involvement in a filming of the sexual activity which are in evidence by virtue of a fixed camera, the involvement of Complainant 4 in what can clearly be seen in video file one forms part of the material with respect to tendency evidence relevantly to be considered with respect to other charges, and relevantly with respect to allegations brought by Complainant 4. VIDEO FILE 2 (ALSO CONTAINED ON EXHIBIT Y) 1. I turn now to the second video file which, based on the properties recorded with respect to the thumbnail images, would appear to have been filmed a little less than 24 hours after the vision in Video File 1. Complainant 1's hair is arranged in a hair elastic slightly differently than in the first video. COUNTS 36 TO 37 1. Video File 2 commences with vision of Complainant 4 lying naked, flat on his back with an erect penis. The vision clearly reflects Complainant 1 looking towards the camera and towards the accused before then commencing to place her brother's erect penis into her mouth. She continues with this act of fellatio for a short period of time while the accused moves clearly into camera view and lies down beside Complainant 4. The accused is, as he had been in the first video file, completely naked. This first portion of vision on Video File 2 forms the basis for Count 36 and Count 37 in the indictment. 2. Count 36 charges the accused with inciting Complainant 1 to have sexual intercourse with Complainant 4, he being between the ages of 10 and 14, and in circumstances of aggravation, namely that Complainant 4 was at the time under the authority of the accused. This is a charge brought pursuant to the provisions of s 66C(2) and s 80G of the Crimes Act 1900. Count 37 is in identical terms relating to the inciting of Complainant 4 to have sexual intercourse with Complainant 1, she similarly being between the ages of 10 and 14, and in circumstances of aggravation, namely that Complainant 1 was at the time under the authority of the accused. 3. These two counts focus on the inciting of a person to have sexual intercourse with another person. The victim in a crime thus pleaded is, in my view, the person with whom the sexual intercourse takes place, not, as a matter of legal principle, the person incited. Accordingly, the relevant age regarding the commission of the offence is the age of the "victim" and the fact that the "victim" was the person under the authority of the accused is the relevant aggravating element. This understanding of the legal principles by me led to amendment of the original indictment as to which my judgment of 27 February 2018 relates. I am satisfied that the elements of these two offences are established beyond reasonable doubt and there will accordingly be verdicts of guilty with respects to Count 36 and Count 37. COUNT 38 1. This count is preferred pursuant to s 66C(2) of the Crimes Act 1900 in circumstances of aggravation. Video File 2 next depicts Complainant 1 committing fellatio upon the accused while keeping her left hand on her brother's penis. Her brother and the accused are lying side-by-side with Complainant 1 in between them. This action continues for a short period of time until the accused gesticulates that Complainant 1 should turn around and straddle his body in such a fashion as to enable him to proceed with an act of cunnilingus, while she performs fellatio upon him. 2. This initial period of fellatio between Complainant 1 and the accused is the basis of the aggravated sexual intercourse charged against the accused pursuant to s 66C(2) and comprising Count 38 in the indictment. I am satisfied beyond reasonable doubt of the elements of that offence including that she was under the authority of the accused. He is found guilty of Count 38. COUNTS 39 AND 40 1. The accused having indicated that Complainant 1 should turn around in the fashion I have described above, Count 39 relates to the ensuing act of cunnilingus of the accused upon her while Count 40 relates to the simultaneous act of fellatio by Complainant 1 upon the accused. 2. Each of those simultaneous acts of what are legally defined as sexual intercourse are clearly established beyond reasonable doubt, as is the aggravating circumstance that she was under his authority. The accused is found guilty in respect of both of those counts. COUNTS 41 AND 42 1. These counts are brought under s 66C(2) and s 80G of the Crimes Act 1900. Following the above actions, the accused can then clearly be seen to indicate by pointing that Complainant 1 should move across and participate in a similar act of mutual cunnilingus and fellatio with her brother. Complainant 1 then stands up and moves across and positions herself on her brother, Complainant 4, who is still lying on his back alongside his grandfather. She positions herself on top of her brother such that she can perform fellatio upon Complainant 4 whilst he is performing cunnilingus upon her. 2. Counts 41 and 42 respectively allege that the accused incited Complainant 1 in count 41 to have sexual intercourse with Complainant 4, he being 10 or 11 years of age, and in circumstances of aggravation, namely that he, Complainant 4, being the victim in that count, was under the authority of the accused. 3. Count 42 alleges that the accused incited Complainant 4 to have sexual intercourse with Complainant 1, she being 12 or 13 years of age, in circumstances of aggravation, namely that she, as the victim, was similarly under his authority. Each of these counts relates to the simultaneous actions of each child upon the other in the act of sexual intercourse in the form of fellatio. 4. With respect to each of these respective counts of inciting each child to commit the specified sexual intercourse, I am satisfied beyond reasonable doubt of the requisite elements including the circumstances of aggravation, and the accused is found guilty of each of those counts. COUNTS 43 AND 44 1. Counts 43 and 44 are brought under s 66C(2) and s 80G of the Crimes Act. They are also mirror images of each other as a consequence of the simultaneous act of cunnilingus. Count 43 alleges that the accused incited Complainant 4 to have sexual intercourse in that fashion with Complainant 1 with respect to the act of cunnilingus, while Count 44 reflects the inciting of Complainant 1 to the same act with Complainant 4. Each victim in the respective counts was relevantly under the authority of the accused. The accused will be found guilty of both of those counts. COUNT 45 1. This is an allegation of aggravated sexual intercourse contrary to the provisions of s 66C(2) of the Crimes Act 1900. At approximately 2 minutes 10 seconds into Video File 2, whilst the accused is still lying alongside the two children engaging in the simultaneous acts of cunnilingus and fellatio, the accused taps Complainant 1 on her exposed back and gesticulates that she should commence fellatio upon himself whilst continuing to receive cunnilingus from her brother. Complainant 1 moves at a 45-degree angle, appearing to keep her vaginal area on her brother's mouth whilst leaning across and commencing fellatio upon the accused. Count 45 relates to this aspect of the sexual activity and alleges aggravated sexual intercourse with a child between the ages of 10 and 14 contrary to the provisions of s 66C(2). 2. I am satisfied beyond reasonable doubt that the elements of that offence are made out with respect to this particularisation and the accused is found guilty of Count 45. COUNTS 46 AND 47 1. These are both counts of inciting each child to have sexual intercourse with the other contrary to the provisions of s 66C(2) and s 80G of the Crimes Act 1900. After continuing the activity that I have described above for some 20 seconds, the accused then appears to instruct both children to reposition themselves and for Complainant 4 to have intercourse with his sister. Whilst the sound is not clear, the fact that the accused was giving oral directions as well as hand signals as to what should occur is abundantly clear. The video then clearly shows the accused moving from the position that he was lying on the mattress and Complainant 1 moving to that area and lying on her back. Complainant 4 lies on top of her and proceeds to have penile-vaginal intercourse with his sister. Over the next period of approximately a minute whilst the intercourse between Complainant 4 and Complainant 1 is continuing the accused can be seen to reach out and take the fixed camera from its position whilst it continues to record. He, whilst holding the camera, then positions it so as to take close-up images of Complainant 4's penis going in and out of Complainant 1's vagina. 2. The accused can faintly be heard in the recording uttering words of encouragement: "keep going, keep going". Counts 46 and 47 relate to this portion of the video file. Count 46 charges the incitement of Complainant 1 to have sexual intercourse with Complainant 4, he being a person under the age of 14 years and at the time being under the authority of the accused. Count 47 is a mirror-image offence and relates to the same act of sexual intercourse. It alleges the inciting of Complainant 4 to have sexual intercourse with Complainant 1, she being under the age 14 years and under the authority of the accused. 3. I am satisfied beyond reasonable doubt of the elements of these offences, including the circumstances of aggravation pleaded, and the accused is found guilty of Counts 46 and 47. COUNTS 48 AND 49 1. These two counts are each charged under s 66C(2) of the Crimes Act 1900. The accused can be heard to say: "Let me go in once more". He is seen to position himself between Complainant 1's legs whilst she is lying on her back. Complainant 1 can be seen to use her hand to guide the accused's penis into her vagina. The act of intercourse is videoed by the camera being handheld in close proximity. After a period of intercourse in this fashion for a little over 1 and a half minutes, the accused can be heard to say: "Okay, do doggie." Complainant 1 is then observed to get on all fours with the accused behind her. She again guides his penis into her vagina. The accused is observed to reach up and hold onto the roof beams. He points to his penis at which stage the hand-held camera held by Complainant 4 zooms in. 2. The acts of sexual intercourse in the two positions I have described are depicted in the video between approximately 4 minutes 6 seconds through until 7 minutes 7 seconds. They are each the subject of a separate count. Count 48 relates to the penile-vaginal intercourse with Complainant 1 lying on her back and Count 49 relates to the penile-vaginal intercourse with her on all fours. 3. I am satisfied beyond reasonable doubt of the requisite elements of those two counts, each of which is charged pursuant to s 66C(2) and also alleges a circumstance of aggravation. The accused is found guilty with respect to each of Counts 48 and 49. COUNTS 50 AND 51 1. Immediately following the sexual activity up to this point on the video file, the accused withdraws his penis and moves away from his granddaughter who remains on all fours. Complainant 4 comes into the line of vision of the camera and proceeds to have intercourse with Complainant 1 from behind while she remains on her hands and knees on all fours. Count 50 in the indictment relates to this interaction and the accused is charged pursuant to s 80G with inciting Complainant 4 to have sexual intercourse with Complainant 1, she then being a person under the age of 14 in circumstances of aggravation, namely that she was under the authority of the accused. Those elements constitute an offence contrary to s 66C(2) of the Crimes Act 1900. 2. During the course of this sexual intercourse between Complainant 4 and Complainant 1, the accused's knee can be observed pressing on the back of his 10 or 11 year old grandson and pushing him forward whilst Complainant 4 was thrusting back and forth. The videoing which is occurring at this stage is with a handheld camera held by the accused. He again takes extreme close-ups of the physical connection between the children. 3. I am satisfied that the accused did incite Complainant 4 to this interaction and of the other requisite elements of the offence as charged. The accused is found guilty of Count 50. 4. Count 51 derives from the same act of intercourse described immediately above and is a charge under the same sections of inciting Complainant 1 to have sexual intercourse with Complainant 4. I am satisfied of the elements of that offence and of the aggravating circumstance and the accused will be found guilty of Count 51. COUNTS 52 AND 53 1. These two counts are also brought under s 66C(2) and s 80G of the Crimes Act 1900. Following approximately one and a half minutes of the sexual interaction which I have described above, the positions of the children are rearranged. Complainant 1 now lies on her back leaning towards her left hand side while her brother is positioned behind her and coming forward between her spread legs. Complainant 1 has her right leg extended vertically in the air. The accused continues to use the hand-held camera with vision directly above and close towards the genitals of both children. Complainant 4 is observed to have penile penetration of his sister's vagina which then continues for more than a minute. During the course of this interaction the accused taps Complainant 4 on the leg to get him to move it out of the camera shot and to give a clearer shot of the genitalia of both children. The accused is heard to say: "that's it, yeah keep going, that's it", and: "keep going (Complainant 4), give hard, keep going." 2. The indictment alleges inciting to commit aggravated sexual intercourse of a person under the age of 14 similarly to previous charges. Count 52 relates to inciting Complainant 4 to have sexual intercourse with Complainant 1, while Count 33 is the mirror-image charge and alleges inciting Complainant 1 to have sexual intercourse with Complainant 4. I am satisfied beyond reasonable doubt of the fact of incitement of each child and the accused is found guilty of Counts 52 and 53. Video File 2 then came to an end at 10 minutes and 10 seconds. VIDEO FILE 3 (CONTAINED ON EXHIBIT Y) 1. Video File 3 commenced moments after the cessation of the filming on Video File 2. The two children are still in exactly the same positions in relation to each other and Complainant 1 even has her leg still vertically in the air. I have absolutely no reservation in concluding that Video File 3 was an immediate continuation of filming on the same occasion and at the same location. COUNTS 54 AND 55 1. As well as the filming stopping very briefly and then restarting, it was clear that the sexual intercourse between Complainant 4 and Complainant 1 had ceased only momentarily. In the short period between Video File 2 ceasing and Video File 3 commencing, Complainant 4 appears to have gone slightly flaccid. However, assisted by Complainant 1, Complainant 4 then reinserts his penis into her vagina and proceeds to have sexual intercourse for approximately another 40 seconds. The act of intercourse filmed on Video File 3, as with the previous interaction between the two children, provides the basis for two separate counts in the indictment. 2. Count 54 charges that the accused incited Complainant 4 to an act of aggravated sexual intercourse contrary to s 66C(2) while Count 55 charges that the accused incited Complainant 1 in similar terms. Each count carries the additional circumstance of aggravation that the victim was the person under the authority of the accused. I am satisfied beyond reasonable doubt of the elements of each of those offences and the accused is found guilty with respect to Counts 54 and 55. COUNT 56 1. Count 56 alleges an offence contrary to s 66C(2) of the Crimes Act 1900. At approximately 47 seconds into the video, the accused can be heard to whisper something. His words are difficult to discern but it would appear that consequently Complainant 4 rolled away from his sister and got up and moved away from camera view. The vision would strongly suggest the camera is handed to Complainant 4 by the accused. The accused then took up a similar position to that previously occupied by Complainant 4 by lying on his left hand side effectively behind Complainant 1. 2. Complainant 1 continues to lie on her back on her left hand side with her legs apart and she applied lubricant to her vagina and also to the accused's penis. Close‑up vision of the ensuing sexual intercourse between the accused and his granddaughter then continues until approximately 2 minutes 55 seconds on Video File 3. The sexual intercourse during this period gives rise to the aggravated sexual intercourse alleged in Count 56. 3. I should make an observation in passing. The accused in the course of his evidence in the trial claimed that the "doctoring" of the video included the use of somebody's penis and genitalia other than his own. He in fact claimed that his penis was "not that big". Evidence in the trial indicated that he had had some surgery at some stage involving surgery to a testicle and, according to his testimony, a vasectomy. He indicated in the course of his evidence a small incision that he said was on each testicle. I note that there is clear vision of a surgical incision able to be seen on the testicle in the video at this portion. As I have already indicated, I am satisfied beyond reasonable doubt that the vision in these video files is indeed of the accused and of his genitals and I simply make this specific observation to note additional material which leads to a total rejection of the allegations brought in that respect by the accused. 4. I am satisfied beyond reasonable doubt of the elements of the s 66C(2) charge brought in Count 56 and the accused is thereby found guilty of that offence. COUNT 57 1. The act of sexual intercourse referred to in Count 56 then ceases and the accused and Complainant 1 are then physically rearranged. Complainant 1 gets a small rag and wipes her vagina. It is unclear whether the accused had ejaculated or not. The accused then reaches and gets a pillow which he places under the backside of Complainant 1 so as to elevate her slightly. Intercourse then continues in this position for more than a minute. At a point in time of approximately 4 minutes 11 seconds into the video, Complainant 1 can be heard to say to the accused "Stop" but he continues having intercourse for a short period after that before withdrawing. As this particular video file comes to a conclusion, Complainant 1 can again be seen picking up a rag and the accused is heard to say: "Right, what's next?" The film then stops. 2. The additional sexual intercourse during the period after the pillow is placed underneath Complainant 1 is separately charged as Count 57 in the indictment. This again is an offence contrary to s 66C(2) of the Crimes Act 1900. I am satisfied beyond reasonable doubt of the elements of that offence and the accused will be found guilty with respect to Count 57. COUNT 58 1. This count arises from the filming of the events covered by Counts 28 to 35. As amended it is conduct which is alleged to have occurred between 17 September 2010 and 16 August 2012. I remind myself that Counts 28 to 35 relate to Video File 1. 2. Count 58 relates to the production of child abuse material which is an offence contrary to s 91H(2) of the Crimes Act 1900. Section 91H includes a definition of "produce" with respect to child abuse material. To produce includes to: "film, photograph, print or otherwise make child abuse material; or alter or manipulate any image for the purpose of making child abuse material; or enter into any agreement or arrangement to do so." 1. Section 91FB defines "child abuse material." That phrase is defined to mean material that depicts or describes in a way that reasonable persons would regard as being in all the circumstances offensive and includes a child in the presence of another person who is engaged or apparently engaged in a sexual pose or other sexual activity and it also includes depicting the private parts of a person who is a child. 2. The acts depicted in Video File 1 which I have described in detail above, and also the filming of that activity on the second camera, clearly in my view constitute the production of child abuse material. Whether the material was "produced" by virtue of the accused using his 10 or 11 year old grandson as his agent, or pursuant to some common purpose, or simply by "arrangement", I am satisfied beyond reasonable doubt that he produced the child abuse material. Accordingly there will be a verdict of guilty with respect to Count 58. COUNT 59 1. Count 59 similarly alleges, contrary to s 91H(2) of the Crimes Act 1900, the production of child abuse material. It has been particularised as relating to the video in video file two. I note for the reasons I have outlined above this incident continued to be filmed on video file three. The material as I have described it above was clearly child abuse material. For the reasons I have previously articulated, it was obviously produced by the accused. I return a verdict of guilty with respect to Count 59. COUNTS 60 AND 61 1. These counts respectively allege offences of procuring each of Complainant 1 and Complainant 4, being children under the age of 14 years, for unlawful sexual activity contrary to the provisions of s 66EB(2) of the Crimes Act 1900. The concept of procuring a person to do something requires an understanding or interpretation of the word "procure." This has been described as a matter of common sense for a jury and a variety of authorities have considered the use of the word in different contexts. 2. The Queensland Criminal Code creates an offence of procuring a person to engage in carnal knowledge. For the purposes of the relevant section the term "procure" is defined as meaning: "knowingly entice or recruit for the purposes of sexual exploitation". The Shorter Oxford English Dictionary defines "procure" as: "to bring about by care or pains, to bring about, cause, effect, produce." It also includes a definition of "obtaining for the gratification of lust." 3. The offence charged under s 66EB of procuring a child for unlawful sexual activity also requires a consideration of the meaning of "unlawful sexual activity". That phrase is defined to mean an act that constitutes an offence, inter alia, under Division 10 of the Crimes Act 1900. Section 66EB(4) provides that it is not necessary to specify or prove any particular unlawful sexual activity. 4. In the present case, both children were clearly engaged in acts of sexual intercourse which would constitute offences under Division 10. Considering the matter in this common sense fashion, I am satisfied beyond reasonable doubt that the accused did procure Complainant 1 and Complainant 4 for unlawful sexual activity. In these circumstances, there will be a verdict of guilty with respect to Counts 60 and 61. COUNTS 70 TO 77 (COMPLAINANTS 1 AND 4) 1. Before moving to a consideration of allegations which rely wholly or in part on oral testimony, it is convenient to deal with the eight counts alleging possession of child abuse material and which form the basis of Counts 70 to 77 inclusive. Each of those counts is an allegation of possession of child abuse material contrary to the provisions of s 91H(2). Each count respectively relates to the possession by the accused of a photographic image recovered from the SD memory card seized by police pursuant to a search warrant. 2. The images are on the same SD card which had contained the three video files to which reference has already been extensively made. A clear inference from the evidence of the accused in the trial was that the occasion depicted in the video files retrieved from the SD memory card was the first and only occasion on which he filmed sexual activity involving Complainant 1 and Complainant 4. Each of the children, on the other hand, claimed that the filming of sexual activity had been going on for years and had occurred many times. 3. Evidence touching on this issue is available from a number of areas other than oral testimony. After making brief reference again to the video files, I ought note the following observation. Each of the two children clearly in my view were carrying on activities in respect of which they were both practised and experienced. I would not find that the images on the video file were occurring for the first time. 4. The SD memory card located in the accused's vehicle contained a number of other files in addition to those three video files. There were in fact three folders contained within the identified file or folder 5772 which was tendered on the disk as Exhibit Y. Those three relevant folders within the file 5772 were respectively titled "Video", "Audio" and "Pictures". Within the Video folder, there were in fact a total of eight videos, three of which contained the three video files which I have dealt with above. 5. The other five videos contained material as follows: two files were short videos of thunderstorm activity; a third was a short three-second video of the inside of a vehicle shot from the front seat and looking towards the rear, which appeared consistent with the inside of a four-wheel-drive or similar type of vehicle; a fourth video was approximately 5 seconds in length and appeared to have been taken from inside the garage of the accused's home, looking towards the street and along the driveway (to the right-hand side one could see his caravan and the back of one of the Nissan Patrol vehicles which he had owned); the fifth video within the folder was extremely short in duration. It showed what appeared to be the left leg of a male wearing shorts in the front seat of a vehicle. 6. Within the "Audio" folder, there were a number of files which included two which were specifically identified and tendered. Although contained on the disc, Exhibit Y, these were effectively notionally separately marked as Exhibit AA. A transcript of those recordings was separately tendered as Exhibit AA1. Those audio files are not the subject of any particular count in the indictment. They are sought to be relied upon by the Crown as context and tendency evidence. The audio recordings were played in open court and I have had the opportunity of re-listening to the material in the course of my deliberations. The transcript set out in Exhibit AA1 is essentially an accurate transcription of what can be heard on those audio files, subject to some slight differences which I will note. 7. The first audio file goes for 4 minutes 6 seconds. The sounds are consistent with a sound recording or perhaps the sound track from a video recording of a male and female engaged in intercourse. The female is heard towards the beginning to say "Ow" and the accused's voice is then heard to say, "Sorry, darlin'". The sound of a bed squeaking can be heard together with groaning and heavy breathing and other sounds consistent with intercourse occurring on a bed. The accused is heard to say "keep talking to me" and the female voice is heard whispering. The female voice says "keep going" and the accused is heard to say "I can. I took a full pill instead of a half one." I should note that I would infer from the other evidence in the trial that that was a reference to Viagra. 8. The second audio file goes for approximately 2 minutes 46 seconds. The accused is heard on two occasions asking the female: "Are you going to dob me in?" Sounds, again consistent with some form of sexual activity ,could be heard during this recording. The accused is heard to say, "that's why you were facing the camera, okay?" and later "turn around and face the camera". Towards the end of the recording, the accused can be heard groaning and puffing, and he says "just turn sideways and finish it off, hey." Thereafter, there are more sounds consistent with the squeaking of the bed. 9. Whilst there is no vision accompanying these audio soundtracks, they lend strong support to the assertions by Complainant 1 that sexual activity took place with her on other occasions which were recorded. The sounds are consistent with sexual intercourse between Complainant 1 and the accused. Other files within the audio folder are said to be of no relevance and I have not listened to them. 10. The folder entitled "Pictures" contained ten still images. These were not specifically referred to when the disc was tendered, other than by reference to two of the ten which formed the basis of two separate counts in the indictment. The eight counts in the indictment, Counts 70 to 77 inclusive, relate to eight still images contained within the images on the SD memory card. The allegation brought by the Crown is that each of the nominated still images constitutes child abuse material possessed by the accused. COUNTS 70 AND 71 1. The photographs relied upon in support of Counts 70 and 71 were only identified in the course of the trial itself by the descriptions contained in a document, provided to the court and containing the particulars for each count, which was handed up by consent and ultimately marked for identification. It became MFI 8. In the course of endeavouring to identify the particular photographs upon which the Crown was relying during the course of my deliberations, it became clear that there were numerous other still photos on the disc which had been tendered as Exhibit Y and which had not been specifically identified either in evidence or during submissions. 2. The court was reassembled for the purpose of dealing with some apparent defects in the indictment to which I have referred earlier in these deliberations, and also to bring to the attention of the parties the presence of the additional material in Exhibit Y which had not been the subject of any submissions nor indeed of any description in the course of the trial. Ultimately, and following the discussions in open court on 27 February 2018, the particular photographs relied upon in support of counts 70 and 71 were identified by reference to their file identifiers. Those two images form part of the ten images contained under the heading "Pictures" in folder or file 5772. 3. It is, however, clear that each of the ten pictures in that folder has some significance in the overall context of the trial. As I have indicated earlier, there were in total eight video files in the video folder within file 5772. The first eight of the ten still images within the "Pictures" folder are in fact thumbnails of the commencement scene of each of those eight videos. That assumes some significance because each of those thumbnails contains, within the "Properties" connected to each picture and which can be opened and perused on a laptop computer while viewing the images, the date and time registered when the image was first recorded. 4. The three thumbnails relating to Video Files 1, 2 and 3 respectively, indicate that the first video file was registered as recorded on 23 June 2012 at 4.15am, whilst video files 2 and 3 were respectively recorded on 24 June 2012 at 1.30am and immediately thereafter on 24 June 2012 at 1.40am. Those thumbnails are respectively the fourth, fifth and sixth files as recorded under "Pictures" on Exhibit Y. COUNT 70 1. It is unclear to me on what basis the Crown has selected one of the three thumbnails which coincide with the videos for the purpose of laying a separate charge of possession. It may be that the correlation between the images and the videos was not realised and the particulars provided with respect to Count 70 describe this image as a pornographic image showing Complainant 1 "aged between 10 to 12 years laying on her back and engaged in penile/vaginal intercourse with an unknown male." The image thus relied upon for Count 70, which is clearly child abuse material (and would have been child pornography under the pre-September 2010 definition), is, in fact, the opening scene of the third video file which is relied upon to provide the basis of the charges in the indictment in Counts 54 to 57 inclusive and also the production of child abuse material charged in Count 59. 2. Whatever the basis of the explanation for the preferring of the additional charge with respect to this additional still image or thumbnail, whilst there may be perceived to be a degree of "overcharging", it does not give rise to any legal impediment to the count in the indictment. I am satisfied beyond reasonable doubt that the image is child abuse material and that it was in the possession of the accused. There will accordingly be a verdict of guilty with respect to Count 70. It goes without saying that the intercourse was not with an unknown male but was, rather, with Complainant 4. 3. The seventh thumbnail, coinciding with the video shot of the driveway of the accused's premises, has a date-stamp of 11.09.2014 whilst the eighth thumbnail showing a male leg in shorts in the front of the car was date-stamped 13.12.2012. The earlier images of a thunderstorm have date stamps of 1.12.2014. COUNT 71 1. The ninth image is a blurred thumbnail which appears, to my observation, to be a photo of Complainant 1, naked and to the right of the frame, together with an older body consistent in general appearance with the accused, naked and either engaged in or about to engage in intercourse with Complainant 1. The description in the summary particulars document (MFI 8) describes this image as "Complainant 1 engaged in penile vaginal intercourse with the same unknown male" (being a reference to the unknown male in the photo relied upon for count 70). Whilst I am of the view that it is child abuse material within the requisite definition, I do not agree that it is the same "unknown male" in Count 70 which, as I have outlined above, is clearly able to be identified by reference to the video as being her brother Complainant 4. Irrespective of that difference in particularity, I am satisfied beyond reasonable doubt that the specific image is child abuse material and that it was in the possession of the accused. There will accordingly be a verdict of guilty with respect to Count 71. AN ADDITIONAL PHOTO 1. The last image in the "Pictures" folder in file 5772 is a picture which, although contained within the exhibit, was not shown on screen during the hearing of the evidence in the trial itself. It was brought to the attention of the parties when the Court was reassembled on 27 February 2018. It has a significant relevance in the consideration of tendency and other aspects of the evidence given by Complainant 1. The image, which as I say is the last of the ten thumbnails within this file, is clearly an image of Complainant 1 lying on a bed with her legs effectively doing the splits and exposing her vagina towards the camera which has taken a still shot. She is considerably less developed than in other images and hence younger. Unlike another photo which was shown during the trial and to which I will shortly make reference, there is absolutely no question but that this image is of Complainant 1. 2. Along with the audio recordings and video files, none of the digital material retrieved by police appears to have ever been shown to Complainant 1 either in its explicit form, or even in a more discreetly and partly censored form in which the exposed genitalia might have been covered. Similarly, it appears never to have been shown to her either in conference or during the trial. The court, accordingly, has no evidence from the complainant herself as to the circumstance in which the images or the videos were said to be recorded; where the still image was taken; and when, if she was able to recall, certain other images were taken. 3. However, the irresistible inference from the presence of the image to which I am presently referring is that it was taken by the accused and it strongly refutes the assertion in his oral testimony that on no occasion did he take pictures of Complainant 1 naked with the camera other than the video files to which I have made considerable reference. I have no doubt that there may be good reasons to do with psychological damage why decisions are made not to revisit offences of this nature with a young complainant. However, ultimately, forensic decisions of that kind sometimes need to be given careful consideration with respect to the prosecution of criminal offences. COUNTS 72 TO 77 1. Counts 72 to 77 inclusive relate to still images located on the same SD card and retrieved by police from the accused's vehicle which are contained in a file or folder identified as 5770. Within that folder are contained some 14 images. Six of the images are duplicated with a thumbnail of the same larger image and those six images are each said to constitute child abuse material and to have been in the possession of the accused. They respectively form the basis for the last six counts in the indictment. COUNT 72 1. Count 72 is identified within Exhibit Y as image 27495. It is an image of Complainant 1 performing fellatio on a male person who is lying on his back. The properties attached to the image register it as having been taken on 13.07.2011 at 1.47pm. The rear vision mirror of a vehicle can be seen in the background of the photograph, which is an extreme close-up of the child's face with a penis in her mouth. The pubic hair which is visible is grey and is consistent with the vision of the accused's pubic area in the three video files to which I have made earlier reference. I am satisfied, whoever the image is of, that the material constitutes child abuse material and that it was in the possession of the accused. There will be a verdict of guilty with respect to Count 72. COUNTS 73 TO 77 1. Counts 73 to 77 relate to five images which depict sexual activity between Complainant 1 and her brother, Complainant 4, on a black and white rug located in what is described in the summary as "a bushland setting". A short description of each image is contained in the particulars document, MFI 8. The images are identified by reference numbers in the particulars document, MFI 8, described as SC numbers. The identifiers for the purpose of the examination of these items in Exhibit Y are not SC numbers and I am unaware as to what the SC numbers refer to. The images are referred to in Exhibit Y as file numbers in respect of which I will identify them by reference to the last four digits of each image. 2. Image 0135 relates to Count 73 and depicts Complainant 1 performing oral sex on her younger brother while being in a position for that action to also be performed on her. The date stamp is recorded 21.9.2011. 3. Count 74 relates to image 5415 and it clearly depicts both children naked on the picnic rug. With regard to when these images may have been taken, I should make the observation by reference to the video files that Complainant 1, whilst showing early stages of the development of breasts, is clearly in my opinion less developed than she is seen in the video files of the sexual activity in the attic area of the accused's home. 4. Count 75 relates to image 0599 and shows Complainant 1 straddling Complainant 4 who has an erect penis. Count 76 relates to image 5655 and shows Complainant 1 straddling Complainant 4 who is lying on his back and having sexual intercourse with him. Count 77 relates to image 1319 and shows Complainant 1 sitting beside her brother and appearing to masturbate him. The images are variously date stamped and time registered on 21.09.2011 between what is recorded as 1.13am and 1.17am. 5. I have no doubt that the images all flow on the same occasion and depict the children on the same blanket. I should observe that while the date stamp may well have been accurate, particularly by reference to the children both appearing somewhat younger than they did in the videos which were definitely taken some time before August 2012 and most probably in June 2012, the specific time recorded clearly is inconsistent with the fact that it appears that the images were shot in daylight. Whether the explanation for the disparity between AM and PM is simply that the digital time, when first set, was inaccurately changed between AM and PM, is a matter in respect of which I can reach no particular conclusion. It is, however, not without significance in determining the question of the taking of these images and the accused's possession of them, that the picnic blanket on which the children are seen was subsequently seized by police during a search of the accused's home premises. The accused in his evidence could give no explanation for what the blanket was doing in these photos. 6. With respect to the images in Count 73 to 77, the accused, in the course of his evidence, said that he recognised the blanket as being a blanket from his own home. As I have indicated he was, however, unable to advance any explanation as to what the blanket was doing in the images or what the images were doing on his camera. He denied having taken the photographs. He said that he had never seen the images before he was arrested. 7. With respect to photograph image 27495, in which there was grey pubic hair able to be observed and the image appeared to have been taken in a car whilst oral sex was occurring with Complainant 1, he was asked whether the image was taken inside his car. His response in evidence was: "I don't know, I don't think so, I don't know." I reject the account given by the accused. I am certainly satisfied beyond reasonable doubt that these images constitute child abuse material and that they were in the possession of the accused on the SD card found in his vehicle. There will, in those circumstances, be a verdict of guilty with respect to each of Counts 73, 74, 75, 76 and 77 in the indictment. 8. I should observe again in passing that these images and the circumstances in which they were taken were neither shown to nor any questions asked of either Complainant 4 and Complainant 1. Notwithstanding a strong and compelling inference that the images were taken by the accused, there is no charge or count in the indictment with respect to the activities depicted. The material is, however, relied upon by the Crown in support of the tendency argument and also in relation to context. All of the circumstances to which I have alluded strongly support the proposition that the date on the images is correct in which event Complainant 1 would have just turned 12 and Complainant 4 would have been just 10 years of age at the time. OTHER ALLEGATIONS BY COMPLAINANT 1 AND INITIAL COMPLAINTS 1. I have thus far dealt with counts in the indictment which rely on objective evidence in the form of the video file vision and the still photographs rather than specifically on the oral testimony and recollection of either Complainant 4 or Complainant 1. As I indicated at the commencement of these remarks, the Crown case in overview seeks to establish a picture of sexual activity, particularly with Complainant 1, extending over many years and having commenced when she was at an extremely young age. 2. Similarly, the Crown case in overview is that there was sexual interaction with Complainant 4 over a number of years. The accused, following his pleas of not guilty to all counts, concedes sexual intercourse occurring with Complainant 1 on a number of occasions, all of which according to his testimony, occurred after she was 14 or 15 and only occurred at identified locations that he indicated. In short, he appears to concede one act of intercourse in a motor vehicle, variously either none or one or two occasions in a caravan, some occasions in the attic of his own home and the occasion that I briefly touched upon regarding a motel at Albion Park. He consistently maintained that he was effectively forced to have sex with her at her instigation. Any sexual activity involving her brother Complainant 4 was also, according to his assertions, at Complainant 1's instigation and initiation. 3. Complainant 1's evidence-in-chief in the trial was led in customary form by the playing of interviews between the child and police. Complainant 1's first interview took place on 3 October 2013 shortly after her 14th birthday. The initial complaint from Complainant 1 to her parents arose in 2013 against a background of earlier allegations which had been communicated to her mother (SD2) by other members of the extended family regarding other grandchildren. As I have briefly touched on earlier, allegations with respect to Complainant 5 had first been raised in late 2009 and allegations were raised by Complainant 2 in either late 2009 or 2010. Those allegations had been raised by SD2 with the accused who had denied the truth of them and had provided her with an explanation for why they would have been falsely raised. 4. There was, consequently, a deal of circumspection held by SD2 and her husband in continuing to permit their children to have contact with their grandparents, and in particular with the accused. As would be clear from the familial relationships which I have described in detail earlier, the accused's second wife was SD2's own mother and she was Complainant 1's biological grandmother. The accused himself, as I have indicated, was Complainant 1's step-grandfather. Contact between SD2's children and the accused did, however, continue with visits to the home and camping and other holiday visits up until 2013. SD2 had impressed upon her mother the necessity for her to supervise such visits. 5. On the weekend of 15 February 2013, an incident occurred which led to both Complainant 1 and Complainant 4 never again visiting their grandparent's home. I have referred to this in detail earlier. The background to the incident is not necessary to dwell on but it had arisen as a consequence of an incident at Complainant 1's school. Following the circumstances of what happened at the grandparents' home on 16 February 2013, both children never again attended the family home of their grandparents. 6. Later in 2013, there were communications which were admitted into evidence of contact from a family relationship centre with SD2 and her husband. Those communications arose as a consequence of apparent attempts by the accused and his wife to seek continued access to their grandchildren. Surrounding circumstances with regard to the involvement of this family relationship centre culminated in a conversation between SD2 and the accused's own son, S1. They were, of course, stepsister and stepbrother following the various family relationships and breakups. 7. Whilst the contents of that conversation were not revealed in evidence, it would appear that SD2 then contacted the Wollongong office of the Department of Community Services (DOCS) about her concerns. As a consequence of DOCS being contacted, Complainant 1 was subsequently interviewed by police on 3 October 2013. It suffices to say that at that stage she made no allegations or disclosures in relation to any sexual activity with the accused. 8. Subsequently, after Complainant 1 commenced a relationship with a young man who was called in the trial, there was a conversation about the use of painkillers and also cannabis during which Complainant 1 told her boyfriend that she had been taking cannabis and painkillers as a consequence of a fact that she had been "raped her whole life." Complainant 1 described to the young man the detail of ongoing sexual activity with her grandfather which she told him had been going on since before she went to primary school. She described to him having to pose for the camera and that she was scared that the videos would be sent out to her family, friends and workplace. She told him that "every time" she had sex with the accused, it was filmed. She told him that during 2015, sexual intercourse had occurred in her grandfather's caravan as well as filming. Following the revelations to him, her young boyfriend prevailed upon her to tell her parents. 9. As a consequence of the disclosure to her parents, she was then taken to the police station by her mother. She was re-interviewed by police on 18 June 2015. The recording of that interview was tendered as Exhibit E and the transcript of it as Exhibit E1. I note that had the matter been proceeding as a trial before a jury, the recorded interview would have been played in court in the presence of the jury and would not have gone to the jury room with them. Similarly, the transcript would have been incorporated effectively into the transcript of the trial rather than being tendered separately as an exhibit. I remind myself that the availability of the review of that material is to be considered with a degree of caution so as not to give it undue weight as compared to other evidence in the trial. 10. The interview with Complainant 1 effectively incorporated the reading aloud to her and her adoption of a statement which she had made to police the previous day, 17 June 2015. A paraphrase of the relevant portions of that statement include Complainant 1 describing MM as having been "very touchy" and "feely" with her when she was younger. She described him picking her up and putting her on his shoulders and him spinning her around so that her crotch would be in his face before putting him down. She remembered the example of him blowing hot air between her legs. This was at a time before she had started school. She said that she did not have a memory of when MM had started sexually abusing her because he had "always done it." She described him having started by touching and rubbing her vagina outside her clothes before putting his hand in her underwear and doing the same thing. She recalled him inserting a finger into her vagina "just a little bit" and then over time putting his finger "in a bit further". She said that this had started before she attended school. 11. She described being in the garage of his home next to the welding equipment and him touching her vagina. She described it as also happening in his bedroom if his wife was out at Bingo. She explained that before she had started school, she had only had her vagina touched or rubbed by his finger. She described an incident of having been taken in a boat to 'the Basin' after she had started kindergarten in 2005. COUNTS 9 TO 11 (COMPLAINANT 1) 1. Complainant 1 gave details of the first time that MM had "full sex" with her which she described as being in the first Nissan Patrol 4WD which was white. She described in a degree of detail the circumstances of the first incident of what she called "full sex." She remembered MM telling her to get undressed while she was sitting in the front passenger seat and then telling her to get into the back. She described the surrounding bushes and trees. She detailed having got undressed and then having got into the back seat of the vehicle behind the front passenger seat. She described the accused standing on the ground in front of her outside the vehicle with his pants pulled down and his penis out. She described the accused putting a finger into her vagina which, when he pushed it further, hurt her "a little bit". She said she was used to him doing that. He then pulled his finger out and started putting his erect penis into her vagina. She said that he did it slowly because it was hurting and she was complaining that it hurt too much. 2. She described the accused as having said to her words to the effect that he would rather do it than have a future boyfriend do it to her and "rip her to shreds." He told her that way it is more enjoyable. She said that the accused told her that he could feel her hymen and that he should have got her drunk so that he could have "ripped through it straight away and she wouldn't have felt it." Complainant 1 described that the accused said that that is what he had done with (another child). I note in passing that this appears to be a reference to Complainant 2, the accused's biological granddaughter. There is no other suggestion that such an act ever occurred with Complainant 2. I infer that the accused claimed that such an act had occurred in order to make Complainant 1 feel more at ease. 3. In the course of her cross-examination, the complainant denied that the only act of intercourse in a vehicle had occurred in the second white Nissan Patrol which had been owned by her step-grandfather. She adhered to her statement to the police that the first act of intercourse that she could recall had taken place in the first of the two white Nissan Patrols that he had owned. Exhibit EE is a list of vehicles registered in the name of the accused. Relevantly, it reveals that the first of the two white Nissan Patrols was registered in his name between 4 February 2004 and 26 May 2009. Between May 2009 and May 2010, the accused had a similar vehicle which was silver and after 4 May 2010 and up until April 2014 he owned the second white Nissan Patrol. 4. In the course of the ensuing interview with police, the complainant was asked in more detail about the first identified occasion that the accused had had sex with her. She was unable to recall exactly how old she was but said that it was before she first got her period which had occurred when she was in year 6 and aged approximately 12 in 2011. Her recollection was that the accused had owned the first Nissan Patrol when she herself was 9, 10 and "11‑ish." 5. The topic was explored in the course of the interview from questions 324 through to approximately question 520. The case for the accused with respect to this episode described by Complainant 1 was that she never had sexual intercourse with him before the age of 15 and that the only occasion she had ever had sex with the accused in a car was in 2014. The complainant disagreed with that suggestion. She did, however, agree that the incident she described as the first occasion of full sex had occurred "somewhere" between her being in Year 4 and in Year 6. 6. In describing the incident, Complainant 1 said that she had started to cry a lot so that MM had taken his penis out of her vagina and told her that he would try again later. She described then having got dressed and got back into the front seat and then described that later that day he took her back to the same spot where they did exactly the same thing. However, on this occasion, he did not put his finger in the vagina first. He just: "put his penis in my vagina, he moved his penis in and out for a little bit, he wasn't saying anything". The complainant said that she started crying and she did not know whether he had ejaculated or not but he said: "I've gone the whole way through." In her statement to police, she had said that she was in Year 4 or 5 when this incident had occurred. 7. Having observed the complainant's demeanour during the course of the interview in 2015 with police and having observed her in the course of additional evidence-in-chief and throughout cross-examination in the trial before me, I am satisfied beyond reasonable doubt of the truth and accuracy of the account which she has provided regarding the first episode of what she described as "full intercourse." The act of digital penetration and the two acts of penile penetration which she described provide the factual basis for the allegations set out respectively in Counts 9, 10 and 11 in the indictment. Each of these charges alleges sexual intercourse with a child under the age of 10 years, contrary to the provisions of s 66A(2) of the Crimes Act 1900. 8. Count 9 relates to the digital penetration in the motor vehicle. Count 10 relates to the first act as described of penile penetration and Count 11 relates to the later count of penile penetration on the same day. I am satisfied beyond reasonable doubt that the accused's contention that no such incident as described had occurred at any time before 2014 should be rejected and rejected beyond reasonable doubt. I am satisfied beyond reasonable doubt of the account given by Complainant 1 as to the circumstances of the intercourse charged and also that it occurred before she got her period at the age of 12. 9. It is, however, an essential element of a charge under s 66A(2) of the Crimes Act 1900 that the child be under the age of 10 years at the time of the commission of the offence. If one were satisfied beyond reasonable doubt that Complainant 1's recollection that it was the first white Nissan Patrol that the accused owned in which this incident had taken place, one might readily accept that she was under the age of 10 years because that vehicle was only owned by the accused until 26 May 2010 at which time Complainant 1 had not yet turned 10. 10. However, careful attention to when the second white motor vehicle was acquired reveals that the second white Nissan Patrol was registered in the accused's name from May 2010. In the first half of 2010, Complainant 1 was still only 10 years of age and in year 5. She did not get her period until she turned 12 during year 6. 11. The possibility that the sexual intercourse which she described had occurred prior to her turning 12, but not until after the acquisition of the second white Nissan and that she might be confused between the first and second white Nissan Patrol vehicles was not pursued in any questioning of the complainant. The offence charged under s 66A(2) pleads an additional aggravating circumstance, namely that at the time of the offence Complainant 1 was a person under the authority of the accused. 12. Although there is a strong and abiding suspicion that she is correct in asserting that it was the first white Nissan Patrol, in light of her description that the incident occurred somewhere between Years 4 and 6 or, putting it another way, somewhere between the ages of 9 and 11 (accepting 12 as the point in which she got her period), I am not satisfied that the Crown has established beyond reasonable doubt that she was under the age of 10 at the time of the commission of the offences which, as I have already indicated, I am satisfied beyond reasonable doubt did occur. 13. Section 66E of the Crimes Act 1900 permits a finding of an alternative statutory count in circumstances where a s 66A offence is not made out but the elements of a charge under s 66C are satisfied. In all of the circumstances, whilst I am not satisfied beyond reasonable doubt that she was a child under the age of 10 years in order to found a conviction under s 66A(2), I am satisfied that the accused is guilty of the statutory alternative under s 66C(2). There will accordingly be verdicts of not guilty with respect to Counts 9, 10 and 11 as pleaded but there will be verdicts of guilty with respect to the statutory alternative under s 66C(2) in respect of each of those counts. ASPECTS OF MM'S RELATIONSHIP WITH COMPLAINANT 1 1. In the course of the statement provided to police by Complainant 1, she went on to describe the cubby house which had been built in the attic above the garage for her by her grandfather. It had been built for her when she was "younger" by MM and in due course, there was an area behind what she described as the cubby where there was a mattress with a light attached to the wooden frame of the roof. There was also a tripod set up at the end of the bed area with a camera on it as well as another video attached to what she described as a "barrier thing" next to the bed with a camera sitting on a clip which was clipped to the barrier. She drew a diagram for police of the layout of the roof area, including the attic area containing the mattress. 2. In the course of the interview she described her grandfather trying to treat her "as if they were dating" and that she had difficulty remembering specific days or incidents. She did recall clearly that her vagina had been touched before she had commenced school. She had difficulty remembering specific locations where he had inserted his finger into her vagina but said that it was consistent and that it often happened when her grandmother had gone out to either Bingo or other functions. She described that her grandfather had told her that it was a normal thing to do. She told police that she had been told by him that it was a secret that they both had to take to the grave. She described in general terms the incident of being taken to the area called "the Basin" in a "tinny" or runabout and describing that as having occurred on numerous occasions. 3. She was asked if there was anything unusual or different about his penis and she explained in the course of the interview that the accused had told her that he only had "one ball" because he had said to have had surgery to remove one for some reason. She described the itchiness of pink batts or similar insulation in the roof area of the home. She described the video cameras which were set up in the roof and she thought that they were possibly "Sony" brand. She described cameras being kept in the centre console part of her grandfather's vehicle and also in built-in drawers at the rear of the motor vehicle. She explained to police that the area with the mattress in the roof of the house was where the accused would "record himself having sex with me." She said that the last time she had been up in that area was in 2013. I again note that the weekend of 16 February 2013 was the last time she had been in attendance at the house. 4. Complainant 1 explained to police that she recalled her grandfather producing a written list of what was required to be done in the movies. It would set out positions and the requirements for oral sex. She was asked if she could recall a time in 2013 when she had been up there in the attic and she said: "I don't remember a specific time, I just, kind of like when I was younger I just remember constantly it was happening." She described having been given written instructions as to what was to happen in the making of a video and that on some occasions it was in running writing which she had trouble reading. She recalled that it was written in pen but she did not recall and was not able to say at that stage whose writing it was. She described that her grandfather could not do running writing and consequently she did not think that he had written the notes in running writing. She told police that she did not see the movies at length after they were made but that the accused would show her a glimpse and run it through on fast forward on the camera and say "there, it's recorded." She described him taking the memory chip from the camera so that he could take it to "whoever he was, whoever was selling it". She told police: "They just said that they sold it to people or overseas, they were selling it to other people." 5. Complainant 1 went on to describe that the last time she had been with MM was a couple of weeks before the interview. She said: "nothing happened though because I kept saying I was too sick and I didn't want to do it and that. I didn't think we had enough time or something, it was just excuse after excuse to be honest." She told police: "They've been trying to make me do a bunch of movies", and indicated that the only time she was able to get away early from school was on a Tuesday. She went on to explain that two persons who she understood were girls, "Toey" and "Lyn", were the ones that the accused was selling the movies to so that they could sell them and they were the ones giving the accused the list of what to do in the movies. Complainant 1 told police that she had never met either "Toey" or "Lyn" nor had she ever spoken to them over the phone. 6. She told police that when she tried to ring the numbers that came up on her phone they never answered phone calls and would only send messages to her via text. Consequently, she had never heard a voice. They had started texting her a few years earlier. She explained that "they" were threatening to send the videos and pictures that they already had to family and friends and also to her boyfriend's family and friends as well as to her school and to her work. I understand from some of the answers that the child (Complainant 1) must have had some casual work. 7. She said that her grandfather had told her that she should do just what they wanted and do the movies "because that seems to be the only way that it will stop them." She described in detail the necessity to re-do movies at the request of her grandfather because initially she had been either crying or not looking happy enough. In the course of the interview she became upset and started crying in the course of describing what had taken place and of her complaining to the accused. She said: "it should never have been like that, I should have grown up like a normal kid." Having become upset at this point in the interview it was then suspended briefly. 8. Complainant 1 described blankets "and stuff" set up in the back of her grandfather's four-wheel drive and that he had the back seats pushed down. She described making movies or at least digital vision being recorded in the motor vehicle. She was asked if she had any text messages from the accused regarding him coming to pick her up from school. She said: "He would make me delete the texts from all of them and that so that if someone went through my phone they wouldn't see them". There were some more recent messages that she had received and she sent screen shots of these messages to the police. 9. She was asked if there were any other locations where she had had sexual encounters with MM and she indicated that there had been sexual activity in his caravan. The last time she could recall being in the caravan was an occasion when he had brought his caravan up to Wollongong and they had gone to what she described as the "aeroplane place" near Albion Park Rail. 10. On the last occasion that she had been picked up from her school, her recollection was that he had been driving a Land Rover. I note in passing, by reference to Exhibit EE, that the accused was the registered owner of a Toyota Land Cruiser between 10 April 2014 and 30 May 2015. Whilst no questions were directed to the complainant regarding this particular detail at all, I draw the inference that her reference to a Land Rover was actually a reference to the Land Cruiser which was a different vehicle from the Nissan Patrols which he had owned for so many years. Complainant 1 indicated that, after being picked up by the accused, she was driven to a location near the "aeroplane place" at Albion Park Rail where the caravan was located. She described various occasions of being required to carry out sexual activities in different positions pursuant to the written directions that she had been given. COUNTS 62 TO 65 (COMPLAINANT 1) 1. I turn now to Counts 62, 63, 64 and 65. Complainant 1 was unable to recall the last time that she had been picked up from school and had sex with the accused on a Tuesday. However, she did indicate that she could specifically recall one occasion when the accused booked a motel at Albion Park. She described the sexual interaction between herself and the accused on that occasion as having been recorded by a camera on a tripod. She described the accused having one camera set up on a tripod and another camera in his hand. She said that they were the same two cameras that she had previously seen in the attic. She could not recall what date she had been at the Albion Park Motel but she drew a diagram for police and described precisely whereabouts in the motel the room in which she had had sexual intercourse was located. She identified it as being immediately up a set of stairs. She thought, to the best of her recollection, that the incident had occurred at the motel in 2014 or 2015. She described on that occasion four positions that they were required to have sex in or, as she described it, that they "had" to have sex in. The instructions also required that she use a "dildo". She said that she did not know what it was because she had never used one in her life. She said that the use of the dildo had been added on to a list that had come from either "Lyn" or "Toey" according to what the accused told her. She thought the accused had shown her the list. She said it was different handwriting from the writing in the earlier lists. 2. The diagram which Complainant 1 drew for police setting out the location of the room at the motel was in due course established to be precisely the location of a room actually rented by the accused at the Oaks Hotel Motel at Albion Park Rail on 27 September 2014. Evidence called from the manager of the hotel and printouts from the motel computer with regard to the reservation and the location of the room precisely corroborated the assertions by Complainant 1. 3. I should note in passing that the evidence of the manager of the hotel and the records would seem to indicate that the accused had made a reservation in respect of that room approximately a week before it was occupied. He gave sworn evidence that he was effectively, to use the colloquial phrase, a "walk up" and had not booked the reservation in advance. Nothing turns on this question in my mind. 4. The accused in his evidence did not dispute that sexual intercourse took place in the motel room at Albion Park Rail on the occasion that he went there with Complainant 1 in September 2014. However, he appeared to deny that the sexual intercourse was filmed. In his evidence-in-chief, he denied ever making a video of Complainant 1 in his caravan. Two questions later he was asked: "What about in the motel as described?" He responded "Yes". It would appear that he was agreeing that he had intercourse in the motel but not that a movie had been made when one looks at the sequence of questions in some detail. He said that the intercourse had occurred because: "It was another one of Bob's demands." He indicated that it was: "the same as the one in the roof. A text message was sent to (Complainant 1) and (Complainant 1) sent it to me that we had to do it in a motel room." In circumstances which I will detail in due course, a substantial number of the text messages which were being sent from either "Bob", "Toey" or "Lyn" to Complainant 1 were demanding that she make movies and continue to make movies during 2014 and into 2015. I will make further reference to the details of those messages in due course. 5. In the course of the interview with police, Complainant 1 went on to describe the circumstance that a dildo which she described as purple in colour had been produced on the occasion at the motel. She described the buttons which were on it and how it was to be used and what she was told to do in rubbing it on parts of her body. Whilst she carried out the activities that she was told to do with the dildo, she described the accused as "waiting on the side and just watching and getting close-ups." 6. After the use of the dildo, she said that he then got onto the bed and "made me do the positions with him." I understand that to be a reference to the positions which had been stipulated in the written instructions. She then described in sordid detail the actions which she took in the bathroom after the accused had ejaculated inside her. She told the police she had not taken any contraception because the accused had told her that he had had an operation and that he was non-fertile. That assertion by Complainant 1 would appear to be consistent with the accused's claim in evidence that he had had a vasectomy. 7. I have considered the various text messages that were tendered in evidence regarding the pressure being put on Complainant 1 to continue to make movies. I have carefully observed her demeanour in the course of the interview as I indicated earlier and in the course of giving evidence in the trial. Count 62 is a charge contrary to the provisions of s 66C(4), namely having sexual intercourse with a child between the ages of 14 and 16 in circumstances of aggravation, namely that she was under his authority. I note that the accused in his evidence at trial does not dispute that he had intercourse with Complainant 1 on the nominated date 27 September 2014 when she fell within the ages of the charge brought. He claimed that he did so because it was: "another one of "Bob's" demands." 8. Whilst I will deal with it in more detail later, I am satisfied that "Bob" did not exist and that Complainant 1 was, as at September 2014, having been picked up from school by her step-grandfather, under his authority. As at the relevant date, September 2014, Complainant 1 was 15 years of age. I reject the assertions by the accused that a dildo was not used and that the sexual intercourse was not filmed. 9. It was conceded by counsel for the accused in the course of submissions that the proposition that the accused had been "forced" by Complainant 1 to have sexual intercourse with him would not amount to duress at law. This was an appropriate concession to be made. I am left without any real understanding as to the basis upon which a plea of not guilty was entered by the accused to Count 62 in light of his concession that the intercourse took place. 10. To the extent that he sought to advance the proposition that he was compelled to have sex with her because of the importuning of the person "Bob" and that Complainant 1 was thereby demanding that the sex take place, I have considered whether implicitly the Court was being asked to consider whether or not the circumstance of aggravation, namely that at the time of the offence Complainant 1 was under the authority of the accused, was a circumstance which was established on the evidence. No submissions to that effect were put to the Court and I will in due course explain my reasoning for concluding that "Bob" was in fact an imaginary or fictitious invention of the accused himself. 11. In all of these circumstances, I have no reasonable doubt that the child victim was indeed under the authority of the accused. For reasons that I will in due course expound, she was under his thrall as a consequence of circumstances with respect to her having been groomed for the purpose of sexual activity over a substantial number of years. With respect to the specific allegation in Count 62, I return a verdict of guilty. COUNT 63 1. Having returned a verdict of guilty with respect to count 62 I now turn to Count 63. Count 63 relates to the same occasion of the attendance at the Albion Park Rail Oaks Hotel/ Motel. It is particularised by reference to Complainant 1's description of the provision and use of a dildo under the direction of the accused and during which events he filmed her, including close‑ups. Count 63 is an allegation pursuant to s 61O(2)A of the Crimes Act 1900 of inciting a person under the age of 16 years to an act of indecency towards the accused, knowing that the act was being filmed for the purposes of the production of child abuse material. 2. I am satisfied of the honesty and accuracy of the account given by Complainant 1 in this regard and that the actions she described with the use of a dildo constituted an act of indecency in the presence of and towards the accused. He knew that the act was being filmed for the purposes of child abuse material because he was filming it. In the context of the video films which were recovered by police (notwithstanding that they had in fact been digitally deleted but had remained able to be recovered within the memory card) and in the light of conversations which were recorded in the cell of the accused following his arrest and refusal of bail, together with some comments made by him in telephone conversations which were recorded between himself and his wife, I am satisfied beyond reasonable doubt that the incident was, as Complainant 1 described, being filmed. 3. The conversations to which I have referred in broad terms constitute admissions by the accused that there were videos other than those recovered by police which he had either deleted or destroyed, or which he had sought to have destroyed through the removal of material from his home, which he sought to organise with his wife and his brother following his arrest. 4. For present purposes, that evidence assists in coming to a conclusion beyond reasonable doubt that on the occasion described by Complainant 1, the incident and the interaction was being filmed. There will in these circumstances be a verdict of guilty with respect to Count 63. COUNT 64 1. Count 64 is a derivative or related offence which arises from the same sexual activity in the motel at Albion Park Rail. It relates to the fact of the filming and alleges the production of child abuse material contrary to the provisions of s 91H(2). For the reasons already articulated, I am satisfied that the incident as described was filmed and accordingly that the accused did produce child abuse material. I should note in passing that there is in some sense a degree of enthusiastic overcharging with regard to some of these incidents which will need to be carefully borne in mind when proceeding to pass sentence. However, there is no duplicity in relation to the circumstance which arises and I return a verdict of guilty with respect to Count 64. COUNT 65 1. Count 65 is also derived from the same factual circumstance. It is an allegation that the accused used Complainant 1, she being above the age of 14 years "for child abuse material purposes." The offence is stated to be contrary to the provisions of s 91G(2)(a). I should note that the terms of Count 65 in the amended indictment, despite the multifarious corrections and amendments to the original indictment, still contains a defect in its terminology. Count 65 alleges that the accused used a child above the age of 14 years "for child abuse material purposes." The manner of pleading and the verbiage used conflate the terminology which was contained in the Crimes Act prior to 17 September 2010, when the offence under s 91G was "using a child for child pornography purposes." 2. Following the amendments brought about by the 2010 Act, s 91G became a differently crafted offence under the same numerical section, namely an offence of using a child for the production of child abuse material. That defect in the manner of pleading was brought to the attention of the parties during the course of my originally having reserved to deliberate and the court was reconvened on 27 February 2018 for the purpose of hearing submissions regarding that and other defects in the pleadings. I delivered a judgment on 27 February 2018 in which I granted leave for amendments to be made where necessary to rectify the defects which had been identified. It is now apparent that Count 65, notwithstanding that it contained the same defect in its terminology, has remained unaltered. 3. I am satisfied, for the reasons that I articulated in my judgment of 27 February 2018, that the factual allegation giving rise to the offence which was identified has been clear in the provision of particulars and in the manner of the conduct of the trial. The issue is clear and the finding of guilt in relation to Count 64 clearly establishes that I am satisfied beyond reasonable doubt that child abuse material was in fact produced. The child abuse material was constituted by the filming of Complainant 1 committing an act of indecency in the presence of the accused as I have found established in Count 63. 4. I did not propose in recent days to again seek to have the court reconstituted in order to undertake the effective formality of there being yet a further amendment, in accordance with other amendments made, to the terminology pleaded in the indictment. However, in my view, the findings of fact which I have made will have the effect of rectifying the defect by a verdict. I do not refer to the authorities touching upon rectification of a defect in an indictment by verdict but I advert to my judgment of 27 February 2018 in this respect. I am satisfied that using a child for the production of child abuse material is encompassed in the description of the verbiage of using a child "for child abuse material purposes", and that the issue at trial was in fact whether or not child abuse material had been produced, it being the contention of the accused that no filming had taken place. In light of the factual determinations which I have made, there will be a verdict of guilty with respect to Count 65. 5. In addition to the activity described in the course of Complainant 1's interview with police, it is noteworthy that no reference was made to any involvement of her brother, Complainant 4, in the course of that interview. That absence might be viewed as completely understandable. However, in additional evidence-in-chief led from her in the course of the trial, she identified her brother, Complainant 4, as being the only other person who was present in the attic area of the roof at the home of the accused, which had been set up with a mattress, lighting and video filming facilities. Sexual activity, according to Complainant 1, which had been filmed in the roof area also occurred when her brother was present. She was asked what sort of activity was taking place when Complainant 4 was present and she indicated: "It was basically the same but him included". As I have indicated earlier in these remarks, I am satisfied beyond reasonable doubt that videos were taken on numerous occasions. A LETTER FROM "BOB" 1. Complainant 1 gave evidence that she was told at some stage by the accused of the existence of a person referred to as "Bob." She agreed in cross‑examination that her grandfather had accused her of taking money from his vehicle at some stage, which money was said to have belonged to the person "Bob." She agreed that that circumstance had in fact occurred, namely that she was accused of taking money that belonged to "Bob." She denied that she had ever taken money from the vehicle but agreed that that was the accusation raised with her by her step-grandfather. She indicated in evidence that she was told there were a few hundred dollars that had gone missing. Complainant 1 asserted in the course of her cross-examination that, following the accusation that she had stolen money, the accused told her that "Bob" was demanding that she perform sexual acts and be filmed in order that the films might be sold to repay the debt. 2. I should note in passing that it is clear from the text messages which were separately tendered that there was a deal of pressure being put on Complainant 1 to participate in sexual activity and to be filmed, such pressure purportedly being exerted by the person "Bob. As will shortly be observed, there was also pressure being communicated from the other persons, "Toey" and "Lyn." In addition to receiving to receiving telephone text messages from "Bob", "Lyn" and "Toey", Complainant 1 indicated the handwritten notes that were given to her from time to time. As I have already indicated, these notes set out the detail of what she was required to do for the purpose of being filmed. There is little doubt that prior to the arrest of the accused and the police investigation which developed thereafter, Complainant 1 believed that the person "Bob" as well as the persons "Lyn" and "Toey" were all real people. 3. In the course of her testimony in the trial, Complainant 1 identified a copy of a handwritten letter which was shown to her as a letter which she had been given by the accused. The copy of the letter was tendered and became Exhibit H. The copy, which was obtained by police in the course of the investigation, was in fact a photo image which was contained in the pictures or gallery section of the mobile phone of the accused. The evidence from Complainant 1 was that she had actually received the original letter. It purported to be directions from one of the persons, "Bob", "Lyn" or "Toey", giving specific directions as to the various positions and sexual activities that she should participate in whilst being filmed with her grandfather. 4. In addition to repaying the debt which had been creatively asserted, to which I have already made reference, according to Complainant 1 she was also effectively being blackmailed and told that if she did not participate in further filming that the persons "Bob", "Lyn" and/or "Toey" would distribute copies of films and photographs that they had previously supposedly been given of Complainant 1 engaging in sexual activity either on her own, with her brother, or with the accused. It was alleged that these persons would send such material to her friends and family. Consequently, Complainant 1 said she continued to participate from time to time in sexual activity of the kind described, albeit effectively under a form of duress or threat. 5. The details of the instructions set out in Exhibit H do not need to be repeated in full in these remarks. A perusal of Exhibit H will quickly illustrate the sordid directions and precision of physical manipulations that were being directed. It will suffice to say that the note gave directions, addressed to Complainant 1 by name, requiring sexual activity to take place in a motor vehicle and involving the use of a vibrator. There were specific directions regarding the use of the vibrator and its application to parts of her body, as well as specific directions regarding oral sex and instructions that the male, who according to all of the evidence would be the accused, would hold a camera in his hand to get a close up while oral sex was taking place. As I say, the balance of the detailed instructions can be perused by an examination of Exhibit H. 6. Complainant 1 described the instructions in that letter as in fact being followed and said that the activities described and stipulated did take place between herself and her step-grandfather. She indicated, both in evidence-in-chief, and, may I say, more firmly in cross-examination, that the handwriting and the letter was, in her opinion now, the handwriting of the accused. 7. In the course of cross-examination the contents of a statement dated 9 December 2015 by Complainant 1 (which was not in evidence) was put to her. In that statement she apparently had recalled that the letter was given to her in 2014 and she remembered carrying out everything that was written in the letter, as she had said in her oral testimony. She recalled that the sex had happened in the car and that it would have been on a day after school when she had been picked and she was taken to a location near the airport in Albion Park Rail. The reference to the airport in Albion Park Rail I take to be the same place she earlier described as the aeroplane place. I am aware that there is a light aircraft aerodrome at that location. She had described in that statement the vehicle being parked in a location surrounded by trees and that she could see a big shed from where they were parked. 8. She agreed that she had been told by the accused that all of the letters were from "Lyn", "Toey" or "Bob." Notwithstanding the belief that she had at the time, namely that they were genuine emanations from one of those persons, she adhered in her evidence in the trial that the printing, in her opinion now, looked like the accused's writing. I note that it was printed and not in handwriting, which was consistent with what she understood to be the handwriting abilities of her grandfather. There was, however, no handwriting evidence adduced other than that opinion. COUNT 66 1. Count 66 is an allegation of aggravated sexual intercourse with a child over the age of 14 and under the age of 16 years in circumstances of aggravation, namely that she was under the authority of the accused at the time of the offence. The Crown particulars in the summary document (MFI 8) identified penile/vaginal intercourse in the car following the instructions in the letter from "Bob" as the offence which is relied upon in support of that count. 2. In the course of submissions at the conclusion of the evidence, the learned Crown Prosecutor indicated that the question and answers on the transcript at pp 78-79 were relied upon to establish the act of sexual intercourse. The specifics of that questioning took Complainant 1 to a portion of the letter, Exhibit H, in which the instruction was: "Suck him. He holds camera in the hand to get close-up while sucking for about one minute." Complainant 1 was asked specifically whether the sucking occurred, and she said that it did. She was asked: "To what extent did his penis enter your mouth?" She replied: "Fully." 3. I carefully observed the demeanour of the complainant when she was questioned and cross-examined with respect to this letter from "Bob." I am left with no reasonable doubt regarding the truthfulness and accuracy of her evidence. I am satisfied that during the identified period in 2014, the events as described by her took place. Despite the fact that Complainant 1, at the time of the sexual intercourse taking place, believed that "Bob" existed, I have no doubt that "Bob" was an invention of the accused. Whether more than one person wrote the various notes that were referred to in evidence, or whether the relevant note (Exhibit H) was in fact written by the accused, one could not necessarily be satisfied in the absence of other samples of his handwriting or, perchance, in the absence of expert evidence. 4. Tendered in the course of the trial were property seizure records which indicated that diaries and other potential written material had been seized in the course of the search. However, none of that material was tendered in evidence, and the Court was left with no material that might assist in coming to any conclusion in regard to the opinion expressed by Complainant 1. However, the entire circumstance regarding communications from "Bob" I am satisfied beyond reasonable doubt was orchestrated, if not in fact written, by the accused. 5. It is also to be noted that in cross-examination of Complainant 1 it was put to her by the accused's counsel, undoubtedly in accordance with instructions, that sexual intercourse did occur with the accused in his second white Nissan Patrol vehicle. Neither counsel took him to this asserted incident in the course of his testimony although he clearly indicated that he did have sex with her on a number of occasions as a consequence of directions from "Bob." It appears to me that there may well have been no dispute from the accused regarding the particular description given by Complainant 1 regarding the events of this letter. At all events, I am satisfied that the elements of Count 66 are established beyond reasonable doubt. There will be a verdict of guilty with respect to Count 66. COUNTS 67 TO 69 (COMPLAINANT 1) 1. Counts 67, 68, and 69 allege variously that the accused groomed Complainant 1 by exposing her to indecent material with the intention of making it easier to procure her for unlawful sexual activity and that he also supplied prohibited drugs to her, namely cannabis and oxycodone. 2. The offences of supply prohibited drug are said to have occurred when Complainant 1 was 15 years of age, at some point between August 2014 and the arrest of the accused in June 2015. The exposing to indecent material, described by Parliament as "grooming," is charged as conduct which occurred in 2014. The summary of particulars provided to the Court (MFI 8) describes the grooming charge as relating to the grooming of Complainant 1 "during 2014 for the purpose of her taking part in pornographic sexual activities" and, as I have indicated, the charge has a different date range than that alleged in the two supply drug counts. However, in closing address, the learned Crown Prosecutor indicated that the supply charges were relied upon as establishing the grooming alleged in Count 67. 3. There was, as I have earlier indicated, a very substantial number of amendments permitted to the indictment and correction or alteration of dates so as to conform with the evidence which was adduced. If it were proposed that the supplies alleged in Counts 68 and 69, which may have occurred in 2015, would support the basis for an allegation under different legislation of "grooming" in Count 67, one would have expected that the dates alleged for the commission of the offences would coincide. They do not. Accordingly, I propose to consider these counts in the manner in which they are before me in the indictment as it now stands. COUNT 68 1. It is convenient to first consider Count 68. Count 68 alleges an offence contrary to the provisions of s 25(1) of the Drug (Misuse and Trafficking) Act 1985, namely that between 18 August 2014 and 25 June 2015 at Albion Park, the accused did supply a prohibited drug, namely, cannabis. I should note in passing that the accused was arrested on 19 June 2015 so the court is somewhat bemused at the date range extending to 25 June 2015. Be that as it may, I turn to consider the question of whether an offence of supplying cannabis is made out against the accused within the parameters of the dates charged. 2. Complainant 1 gave evidence of a specific incident that had occurred at around about the time of a school Drama Festival in 2015. She described the accused contacting her and arranging to meet her out the front of her High School during her lunchbreak. She went from the school and got into the car where the accused gave her what she described as "a bag of mixed marijuana and Endone tablets." She was asked if she had ever received those sorts of things before from MM and she indicated that she had. She said that Endone had been given to her regularly, "every time he saw me", and that on other occasions she had not taken marijuana offered to her but on this occasion she did. With regard to the marijuana given to her on this occasion, Complainant 1 was not sure whether she had thrown it out or given it to her mother to give to the police. 3. In cross-examination it was put to Complainant 1 in simple terms that there was no time ever that the accused had given her marijuana. She disagreed with that proposition. 4. The Crown, in addition to relying upon the evidence of Complainant 1's direct testimony, adduced evidence of similar conduct by the accused towards other children in the extended family. The Crown had given notice of an intention to adduce evidence of a tendency by the accused to provide marijuana to children. Complainant 1's younger brother, Complainant 4, said that he was about 8 or 9 years of age when he was first supplied with marijuana by the accused. He described an occasion when he was given what he referred to as a "joint" which he said was clearly marijuana rolled up in tobacco rolling-paper whilst they were driving in the car. He was encouraged by the accused to try it and he indicated that he smoked half of it before giving it back to the accused. He said: "I remember feeling very nauseous and laughing at pedestrians in a way that I wouldn't normally." 5. Complainant 4 had also been the recipient of a text message from the accused in November 2014 which had been observed on the child's phone by his mother, SD2. The content of the text message was an offer to supply alcohol and drugs to Complainant 4 if he brought some girls along to a meeting with his grandfather. Complainant 4 made complaint to his mother when discussing the text message with her that his grandfather had supplied him with, mainly, marijuana. SD2 actually went to Wollongong Police Station and provided the text message to police in late 2014. The COPS entry with respect to the report to police was tendered without objection as Exhibit UU. In cross-examination, it was suggested to Complainant 4 that the accused had never given him marijuana or anything of that nature. His response to that proposition was: "He did." 6. Complainant 2, another grandchild, gave evidence that when she was 14 or 15 years of age, she was offered marijuana by her grandfather. She gave evidence that he told her that it was "a nice drug to relax you and that he could get it for me." 7. S1, the son of the accused, gave evidence that in 2009, his daughter, Complainant 2, had made a complaint to him that her grandfather had shown "us pornography, videos and tried to give us marijuana." That complaint was made together with her younger sister, Complainant 3. 8. Another witness was called in the Crown case who had been an acquaintance of the accused's family by virtue of her father having been a work colleague of the accused. She gave evidence of an occasion when she was about 13 years of age and she was employed to be a babysitter of the accused's granddaughters, namely the children of S1. The babysitting took place at the then home of the accused and his wife at (a suburb of Wollongong). The babysitter gave evidence that she was given a bottle of what she described as "grappa" and also a bag of "dacha" which she described as another name for "pot." She said that it was given to her surreptitiously by the accused before the adults went out leaving her to babysit the children. 9. She gave additional evidence that there were other occasions when she was visiting the home of the accused and she described: "(MM) would sneakily give me joints when my parents could not see." She explained that a "joint" in the terminology that she was using was a cigarette made out of marijuana and that she would go up the street for a walk and smoke the "joint." She said that by that stage she was probably 14 years of age. The babysitter denied the proposition that was put to her in cross‑examination by counsel for the accused that there was never an occasion that she had babysat nor was there any occasion that she had been supplied with "dacha." She also disagreed with the proposition that there was no occasion when the accused had provided "joints" to her or her and her friend. 10. The evidence from the various sources and different directions which I have described did not, ultimately, rest purely on the oral testimony. Complainant 1's mother gave evidence that the day after Complainant 1 had attended the police station with her and provided a statement, she gave her mother a resealable sandwich bag which contained marijuana mixed with tobacco in it. She told her mother that she had got it from the accused the last time that she had seen him which was a few weeks previously. The substance contained in the sandwich bag and provided by Complainant 1 to her mother was handed, in due course, to police and subsequently analysed by the Forensic and Analytical Science Service. It was confirmed to, in fact, be cannabis leaf. The certificate of analysis was tendered as Exhibit WW in the trial. 11. Further, in the course of the police search of the accused's vehicle a quantity of cannabis was located. In his evidence in the trial, he provided a fanciful explanation, unsupported by any other evidence, of having obtained that cannabis from a relative who had obtained it for the purposes of pain relief. He said that he had the marijuana in his vehicle to use for his own pain relief in place of Endone which he otherwise took. He agreed that the term "dacha" was a term for cannabis and he sought to explain an SMS text message which had been received by Complainant 1 which asked "Let me know how the dacha is" and "I'm trying to find a good supplier." The accused said that was something that he probably sent because "probably (Complainant 1) asked me to get her some marijuana." I note in passing that these text messages were purportedly from the phone from which "Bob" sent messages although that detail would not appear to have been at the forefront of any answers provided by the accused during his evidence. 12. I am satisfied beyond reasonable doubt that the accused had the tendency alleged by the Crown to supply cannabis to persons under the age of 16 years. I reach that conclusion because I am satisfied beyond reasonable doubt of the acts described by the various children. I am satisfied of the truthfulness and accuracy of the account given by Complainant 1 regarding her receipt of cannabis from the accused in 2015 and I am satisfied that the cannabis she provided to her mother had been obtained from her pursuant to a supply of that drug to her by the accused. With respect to the offence alleged in Count 68 under the provisions of the Drug (Misuse and Trafficking) Act 1985 (NSW), there will be a verdict of guilty. COUNT 69 1. Count 69 alleges the supply of a prohibited drug (other than cannabis leaf) by a person above the age of 18 years to a person under the age of 16 years. That is a specific offence under s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW). The particular drug said to have been supplied to Complainant 1 is described in the indictment as Oxycodone Hydrochloride, which is also known by the brand or proprietary name, Endone. 2. In her evidence in the trial, Complainant 1 indicated that she had been given Endone together with mixed marijuana by the accused at the time of the school Drama Festival in 2015. She had further given evidence that she had been provided with Endone previously. She understood that it was a strong painkiller and asserted that the accused had given it to her regularly. The effect of her evidence ultimately was that there were occasions when she took it together with alcohol which the accused had also provided to her "…because it would make me more drunk and make me have like a buzz-type thing." The accused had told her to have it with alcohol. She indicated that there were occasions when she would have it more often so that she would not feel anything and would not say "no" to the sexual acts and would not complain about pain. She indicated that there were many occasions when she did not take the Endone but saved up the tablets and that she had saved them up at her home. She said that she thought she had saved "at least 200 tablets." She said that there were occasions when she was under the influence of both Endone and alcohol during sexual activity that took place between her and the accused. The Endone tablets that she had received with the marijuana around the time of the school Drama Festival she had put away with the rest of the Endone tablets that she had been accumulating. She said that the Endone was with prescriptions that had the name of the accused on them but he had ripped the sticker off in front of her. 3. Shortly after being interviewed by police, Complainant 1 told her mother about the supply of prescription drugs to herself by the accused. She retrieved two boxes of Endone in which there were a total of 80 Endone tablets. One of the boxes had the partial name of the accused on the chemist's prescription label which appeared to have been torn off. The items were provided to police by SD2 and, in due course, the Forensic and Analytical Science Service confirmed the analysis of the tablets as oxycodone which is the specified prohibited drug in the charge. In due course, further quantities of Endone-brand oxycodone were seized during a police search of the accused's home and a record was subsequently obtained from the accused's local pharmacy setting out the dates on which that drug had been supplied by the pharmacy to the accused on various dates between November 2012 and December 2014. 4. In cross-examination, the proposition was put to Complainant 1 that she had, in fact, stolen the Endone tablets from her grandfather's car and from his home without his knowledge. Complainant 1 refuted that suggestion. The accused in his sworn evidence denied ever supplying Endone or any other drug to Complainant 1. 5. I am satisfied beyond reasonable doubt of the honesty and accuracy of the account given by Complainant 1 and, in particular, her evidence about the specific supply identified at around the time of the Drama Festival in 2015. I am satisfied that Endone, the brand name, comprises oxycodone and that that prohibited drug was supplied to Complainant 1 by the accused. The description in the indictment of it being "oxycodone hydrochloride" is of no material difference to the specified drug and is simply a fashion in which the chemical description might otherwise be stated. I return a verdict of guilty with respect to Count 69. COUNT 67 1. Count 67, as I have indicated above, was said by the Crown to arise on the factual material in conjunction with the supply of cannabis and the supply of oxycodone to which I have just referred. However, not only do the dates alleged in Count 67 focus on the calendar year 2014-- FOX: Your Honour, I don't want to interrupt. The Crown was relying upon the "Bob" letter in respect of that material. HIS HONOUR: Right, thank you. FOX: Because it said there's a provision in that legislation for the provision of drugs or the provision of indecent material. I apologise for it. 1. HIS HONOUR: I was moving to Count 67 and I had made reference to, as I had understood it, the submissions by the Crown in final address which focused on the supply of the drugs and in particular I had made reference to the fact that the dates of the asserted supplies and the date in Count 67 do not coincide. The learned Crown Prosecutor. and I am grateful to him for so doing, has interrupted my progression through the remarks to indicate that the Crown had sought to rely in fact on the "Bob" letter with respect to count 67. I accordingly will defer dealing with Count 67 for the moment. If I have proceeded on an erroneous understanding, I may need to revise what I was about to say, so I will not proceed to do so but I will take on board what the Crown has just raised. I can indicate the brutal reality is that I will not finish these remarks this afternoon. I will attend to Count 67 overnight. I move beyond Count 67 accordingly and I move to a question which I postulated for consideration in the course of my deliberations. DID "BOB, "LYN" AND "TOEY" EXIST? 1. I have given careful consideration to the question of whether "Bob", "Lyn" and/or "Toey" are real persons or whether they represent fictitious creations of the accused. I have, in the reasons expressed earlier in these remarks, indicated my conclusion that they do not exist and that they are but Machiavellian machinations of his imagination. It is appropriate that I set out the reasons for my coming to that conclusion. 2. The accused maintained that there existed a number of persons identified as "Bob", "Lyn" and "Toey" who variously pressured both himself, Complainant 1 and Complainant 4, to continue to have sexual interaction and activity between themselves in order to either pay off a debt said to be owed to "Bob" and/or in consequence of threats of blackmail to which I have already adverted. Complainant 1 and Complainant 4 both gave evidence to the effect of an understanding that those persons were in possession of previously recorded video film and/or photographs and that there were threats to release them. 3. The accused denied having supplied such material at any stage to any of those persons although in his sworn evidence he gave detailed evidence predicated on the basis that they were real persons and indeed went on to describe in great detail a physical interaction between himself and "Bob" at a place called Chris Creek. He gave specific detail of first meeting "Bob" at a building in Sydney which was related somehow to the acting fraternity and which he asserted was a building donated by Mel Gibson. That topic and the location of the building to which he was referring was not the subject of any questioning of him by counsel in the course of the trial. It simply remained floating, as it were, in mid-air. 4. There was a deal of additional objective material, that is, independent of oral testimony, tendered in the Crown case in the form of telephone communications and text messages between a number of mobile phones. Some text messages came into evidence by way of screen shots of the actual messages while others were summarised in a schematic document prepared by the investigators and set out in chart form in Exhibit OO. The question as to whether "Bob", "Lyn" and/or "Toey" are real persons, as asserted in sworn testimony by the accused (and as believed at the time by Complainant 1 and Complainant 4), or whether they were imaginative and devious fictitious creations of the accused was a live issue throughout the trial. 5. The existence of "Bob" was raised from time to time by the accused with different of his grandchildren and, perchance indirectly, with Complainant 6. The accused told Complainant 2 that he had a contact in modelling, in the context of suggesting that she take nude photographs to assist in progressing in such a career. He told her that the modelling contact was a person called "Bob" who she was told was in China. He told Complainant 4 that "Bob", who he claimed had been the recipient of earlier videos, was in the Philippines. He told Complainant 6 that he knew a person who had a modelling agency, although he did not with her actually use the name "Bob". Complainant 1 was directly advised that "Bob" had been the recipient of previously shot videos depicting sexual activity between herself and the accused. 6. During an extended period of time of some years prior to the arrest of the accused, "Bob" had communicated with, predominantly, Complainant 1 in circumstances said to have arisen, as I have already adverted to, as a consequence of money supposedly having gone "missing" from the motor vehicle of the accused. It was alleged that the money belonged to "Bob" and the "debt" could be repaid by providing further videos which would purportedly be sold for profit. In conjunction with the contention that a "debt" might thus be repaid, there was also a threat to release previously recorded videos if future recordings did not continue to occur. 7. Such messages were reinforced by communications from a person identified, according to the testimony of the accused, as "Bob's" girlfriend, "Lyn". A further female identity, known by the nickname of "Toey", was also the apparent author of communications to both Complainant 1 and Complainant 4. 8. The messages which were supplied to the investigators via screen shots became Exhibit F. Examples of the importuning in those screen shots include "do this mov" (which I infer is an abbreviation of "movie") "today and I will give you everything today, all over, if you don't I will walk." This message would appear to have been intended to convey that an additional movie should be shot and performed and that, as a consequence, previous recordings would be returned. It was clearly intended to be a form of blackmail to a teenage girl. Numerous of the messages make references to communications between Complainant 1 and the accused. For example, in a message from "Bob" in Exhibit F the message reads: "(Complainant 1), (MM) told me some of the questions you asked him, it sounds like you were recording him, because you know the answer to the questions, you hurt (MM) I'll destroy you." (I have not replicated the mis-spellings and abbreviations in the message but have set out its contextual communication). 9. A schematic table setting out the dates of communications between various telephones identified as purportedly belonging to "Bob", "Lyn" or "Toey" and the communications to and from Complainant 1 and Complainant 4 was tendered, as I have indicated, as Exhibit OO in the trial. I have undertaken a detailed perusal and analysis of both the texts of message which were able to be recovered and the timing of many other messages, notwithstanding that the actual texts were not able to be recovered by the investigators. Time and space do not warrant an exposition of the detail of that analysis. Almost no time was focused on this aspect of the evidence by either counsel in their closing addresses. It suffices to say that between December 2014 and 17 June 2015, only days before the arrest of the accused, messages between the three persons and Complainant 4 and Complainant 1 were focused on exhortations directed to Complainant 1 to make further movies with the accused. They clearly include threats to send videos already taken to other persons, and suggestions to find other persons to be involved in sex. 10. The accused during this period was paying for credit on the mobile phone accounts of both Complainant 4 and Complainant 1. It would appear that this was being done behind the backs of the children's parents. Messages sent by "Bob", "Lyn" or "Toey" to Complainant 4 included threats "to tell (MM) to stop giving you credit". Communications to Complainant 4 indicated that a sum of $600 would be paid for video of a "threesome". Numerous communications back from Complainant 1 during this period of time indicated her reluctance to continue making videos and her repeated making of excuses that she was "sick." Some communications, purportedly between "Toey" and Complainant 4, indicated knowledge of actions taken by the accused, such as the paying of credit on Complainant 4's phone. Many of the communications supported the conclusion expressed by Complainant 4 in his evidence, that he ultimately started to conclude that these persons did not exist and were emanations of the accused because of the fact that they knew factors which only MM could have known. The interplay between the three different purported persons, including insulting comments by one about another, not only played with the psyche of the two child recipients, but continued to create a solid image of persons who they, at that time, beliebed actually existed. 11. Some of the communications, purportedly from "Bob's" phone, clearly supported an inference that the communication was in fact from the accused. Some of those communications, as I have earlier indicated, were the subject of cross­‑examination during the course of his evidence, and he appeared to accept that various of those communications were likely from him. The purported disputes between the three persons can be exemplified by a message from "Bob" to Complainant 2 on 9 June 2015: "Well (Complainant) 1 I'm done with you and your stupid fucking excuses. Next Tuesday at 6pm, I will send. That's a promise. I'm blocking (MM)'s number." 1. This message was intended to convey the impression that if she did not undertake more sexual movies with the accused, "Bob" would send or distribute the films that he supposedly already had. 2. There had been communications between Complainant 1 and the accused and between Complainant 4 and the accused in which he purported and played the role of assisting them to, in effect, get "Bob" and "Lyn" and "Toey"- if I might use the colloquial description - off their back. It is in that context that the communication from "Bob" saying that he was blocking MM's number is to be understood. 3. All attempts by police investigators to ascertain the existence of "Bob", "Toey" or "Lyn" proved futile. Each of the phone numbers for those persons was ultimately ascertained to be a number that had been registered in the name of the accused. He provided, in the course of his testimony before me, a disingenuous and fanciful narrative regarding the circumstances in which the phones had initially been registered in his name and had ultimately been physically returned to him, they of course having been found in his possession by police. 4. I am satisfied, beyond any reasonable doubt, that the persons described as "Bob", "Lyn" and "Toey" have as much genuine substance as the creations from the imagination of J.K. Rowling or J.R.R. Tolkein. They were creations of the accused which were designed, and to some extent succeeded, in coercing a reluctant child, who had been sexualised over a substantial number of years, into continuing the insidious sexual activity with her step-grandfather to which she had become inured. With respect to Complainant 4, the import of the messages would appear to have been to endeavour to entice him back to some form of continued sexual activity and to put him in a position where he might seek to influence his sister. 5. I view all of the SMS communications between those persons and either Complainant 1 or Complainant 4, and the various letters of instruction regarding the manner of carrying out sexual activities, as in fact being communications which had emanated from the accused himself. COUNTS 22 TO 27 (COMPLAINANTS 1 AND 4) 1. Having dealt with almost all of the counts in the indictment which specifically relate to Complainant 1, and having reached findings with regard to the involvement of her younger brother, Complainant 4, in the video recordings (Exhibit Y), it is appropriate to move to a consideration of additional allegations raised by him. As will become clear, he was asked to describe various events by the police in the course of their interview with him. I propose to start with his most recent recollections and events before turning to consider the earlier allegations. 2. Complainant 4, once allegations were raised by him, was interviewed by police on 23 June 2015. He was 14 years of age at the time of the interview. The structure of the interview by police, which in due course became Complainant 4's evidence-in-chief, focused upon the first and last occasions that he was able to recall regarding sexual activity in the roof or attic area of the accused's home. He also described sexual activity in a bush area and in his grandfather's car. Relevantly, so far as Count 22 is concerned, he was asked by police to describe "the last time" that what he had earlier described in the interview as occurring in the attic area had taken place. Complainant 4 told police: "In the last time it happened was pretty much the same as I described, except this time there was no instruction to move around or get the best angle or anything because I knew that's what he expected, so I had to do it and I just did it without him asking." 1. Complainant 4 went on to describe the sexual activity on this last occasion that he recalled being up in the roof or attic area: "…He gave me the camera and then made me start filming and, and the first thing that he laid down and started to lick her crotch and he did that for about 30 seconds to a minute, then he put, like he got up, he put his hands on the pillar, bar, the wooden things going up into the roof and, started to have sexual intercourse with her. After a couple more minutes of that, he turned, like he looked at me and he said, he said, "Pass me the camera"…and he kept going, this time, he stopped after 5 minutes like he stopped recording at 5 minutes and we all got dressed and went downstairs." 1. Following further questioning, Complainant 4 explained that by "licking her crotch" he meant that the accused was having oral sex and licking Complainant 1's vagina. He described in more detail the accused holding onto the rafters: "…he grabbed onto those and put his penis inside of her and started using those as a means of keeping himself up while he was having sex with her." 1. Later in the interview he described the length of the recording, following which Complainant 4 told police: "He wiped himself with this rag and Complainant 1 did the same." 2. With respect to the sexual activity in the attic space specially set up in the accused's roof space of his home, both Complainant 4 and his sister Complainant 1 each asserted that such incidents and the recording of them had taken place on many occasions. Complainant 4 was asked how many times he thought these instances had occurred. He said: "Too many to keep count 'cause it happened over a large number of years and there was no set schedule for it but there were a lot, like, just, just, too many too keep count of." 1. Complainant 1 similarly had said in her interview that she could not remember a specific time which was the last occasion that she had been in the attic room and video recording took place of sexual activity. She said: "When I was younger, I just remember it was constantly happening… I guess I never took much notice of days." She was unable to recall specifically the last time that sexual activity had taken place in the attic room. 2. For the reasons that I have set out earlier in these remarks, the video recordings in the three video files which were tendered were most likely taken in or about June 2012 and, for the reasons I have articulated, certainly before 19 August 2012. Complainant 1 had thought that the last occasion they had been up in the roof area with sexual activity being filmed was in about 2013. Complainant 4 had thought that it was about three years earlier than when he was interviewed in June 2015. Certainly, the children could not have been up in that area after 16 February 2013 for the reasons that I have earlier indicated, given that they never again went to their grandparents' home after that date. I am, accordingly, of the view that if the incidents described by Complainant 4 took place, they must have occurred sometime between about August 2012 and about February 2013. 3. The question as to whether additional videos were taken, other than the three video files recovered by police, was a live issue in the trial. The accused gave evidence that the three video files were the only occasion on which filming took place. Without going to the detail of the numerous conversations with his wife that were recorded following his detention in custody after his arrest, and without going into the details of the recorded conversations in his jail cell between himself and a registered informant who was his cellmate at the time, I am satisfied beyond reasonable doubt that there were many additional videos recorded by the accused. The conversations to which I have referred clearly indicate that the accused had either hidden or deleted other video files and that, as I have already indicated, he took steps to have members of his own family dispose of material which would have included additional recordings. I should note that such activities, to the extent that they may have been carried out by his wife and brother, were done without any intentional complicity by them. 4. The set-up of the attic in the form of a studio; the use of fixed lights and a fixed camera; and the testimony of both Complainant 4 and Complainant 1 leave no reasonable doubt as to the creation of other video films in addition to the three which were recorded. The communications from the fictitious inventions of "Bob", "Lyn" and "Toey", which I find were actually communications from the accused, also strongly support this conclusion. There would be no point in threatening to release earlier recorded videos if none had ever been recorded. The illogicality of the position adopted at the trial by the accused is manifest. 5. With respect to the incident described by Complainant 4 as the last time that sexual activity had occurred in the roof or attic space, I am satisfied beyond reasonable doubt that the incidents, as described by Complainant 4, did take place. COUNT 22 1. The first act described by him, and which I am satisfied did occur, was an act of cunnilingus between the accused and Complainant 1. Having determined that it must have occurred before 16 February 2013, I am satisfied beyond reasonable doubt that Complainant 1 was under the age of 14 years, her relevant birthday not occurring until August 2013. Clearly, an act of cunnilingus falls within the statutory definition of sexual intercourse. The Crown could well have charged an offence in these circumstances contrary to the provisions of s 66C(2) of the Crimes Act as they elected to do with respect to the similar acts clearly depicted in the video files which I have dealt with earlier. 2. For reasons which are difficult to comprehend, Count 22 alleges an offence contrary to the provisions of s 61J(1) of the Crimes Act 1900. It pleads a broad range of dates between January 2011 and March 2013. For the reasons which I have already outlined, the last occasion on which such sexual intercourse could have occurred in that location must have been after the video files were taken and prior to 16 February 2013 after which date the children did not attend their grandparent's house at all. The wide selection of dates in the indictment, whilst sufficient to embrace the conclusions of fact which I have reached regarding when the incident must have occurred, is somewhat difficult to understand. 3. The elements of the crime alleged under s 61J(1) are that there was an act of sexual intercourse with Complainant 1 without her consent, knowing that she was not consenting and that at the time of the offence she was under the authority of the accused. I wish to record my concern at the election by the Director of Public Prosecutions in this case and others to prefer a charge under s 61J(1) when there was clearly an available offence under s 66C. In the circumstances of the age of the child, namely being under 14 years, the maximum penalty available under either of those sections is the same, namely, a maximum penalty of 20 years' imprisonment. A consideration under s 61J(1) that the sexual intercourse occurred without the consent of the complainant and in circumstances where the accused knew that she was not consenting creates, in my opinion, unnecessary complications. 4. Prior to amendments to the Crimes Act 1900 in 2008, a clear distinction was drawn between the concept of "consent" under the age of 16 years with respect to certain crimes specified in the Crimes Act, and the question of consent regarding offences under ss 61J and 61I. The potential for a philosophical conundrum regarding a different interpretation of the word "consent" with regard to persons under the age of 16 was clearly within the contemplation of Parliament in the way in which various provisions of the Crimes Act 1900 had been drafted. 5. Accordingly, a prosecution in 2007 with respect to offences which had occurred in 2001 and where the victim of the sexual intercourse was a child under the age of 16, had been dealt with by an experienced District Court trial judge (Freeman DCJ) in directing a jury: that as the child was under the age of consent, and as the accused knew the age of the child, that was not an element that would need to concern them. 6. The Court of Criminal Appeal in that case, McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527 per Macfarlan JA, Blanch and Johnson JJ relevantly agreeing, held that the directions given by the District Court judge were erroneous. A jury was required to consider whether a child had been a willing participant, and hence had consented in that sense, and determine whether or not the sexual intercourse which had taken place was "without consent." 7. The live issue in that trial had been whether the sexual intercourse had occurred or not. The child was under 10 years of age at the time of the sexual intercourse. The charge under s 61J(1) therefore required a consideration of whether "lack of consent", in the sense of being a willing participant, was established and whether this lack of consent was known to the accused. This led to the incongruous result, in my opinion, that in the event of those elements of s 61J(1) not being established (that being an offence which carried a maximum penalty of 20 years), an alternative verdict under s 66A would be available. Such an offence carried a maximum penalty of life imprisonment as opposed to the 20 year maximum applicable to the offence which had been charged. With the greatest of respect to the then Court of Criminal Appeal, in my view, Parliament could not have intended such an incongruous outcome. However, in my opinion, such considerations may now be consigned to legislative and judicial history. 8. In 2008, amendments to the Crimes Act with regard to the statutory definition of "consent" for the purposes of offences under s 61J extended and refined the definition of consent and the absence of consent. Concepts of recklessness and lack of reasonable grounds for belief were introduced into the Crimes Act under s 61HA(3). Consideration was required to be given to the question of any steps taken by an accused to ascertain whether the other person was consenting. 9. Significantly, under the heading 'Negation of consent', Parliament introduced the following in subsection (4): "(4) A person does not consent to sexual intercourse: If the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive capacity." Subsection (6) introduced a further refinement: "(6) The grounds on which it may be established that someone does not consent to sexual intercourse include: … (c) if the person has sexual intercourse because of the abuse of a position of authority or trust." 1. In my opinion the preferring of charges under s 61J by the Director's office in respect of child complainants should be given careful review. 2. I note that in R v Nelson [2016] NSWCCA 130, an appeal against the inadequacy of sentence where the victims had been approximately 14 years of age or a bit over, Basten JA made remarks about "consensual" intercourse by young persons. His Honour's observations were critical of the sentencing judge who had described the sexual activity as being "consensual". Basten JA said at [23]: "The activity was not adequately described as "consensual"; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of a young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity." 1. I return to a consideration of the charge which has been preferred in Count 22. I am satisfied beyond reasonable doubt that the act described by Complainant 4, which is the foundation for the allegation in Count 22, did occur. I am satisfied that at the time of the events, Complainant 1 was 13 years of age. I am satisfied, accordingly, that she could not give consent due to her incapacity as a result of her age. I am satisfied that the accused knew the age of his step-granddaughter and that, accordingly, he knew she was not consenting. 2. In this regard, I should make it clear that I distinguish the authority of McGrath v R (supra) on the basis of the legislative amendments to which I have referred. I should add, in passing, that in my view the Bench Book needs to be amended to take account of this legislative amendment. 3. An alternative basis upon which I would be satisfied that Complainant 1 was not consenting is upon the basis that any purported "willing participation" by her (or apparent or perceived "consent") was obtained by virtue of the abuse of a position of authority or trust by her step-grandfather. I am satisfied beyond reasonable doubt that she had become sexually de-sensitised as a consequence of persistent grooming and repeated sexual abuse over a number of years. Both Complainant 1 and her brother had been conditioned to accept the sexual activity with the accused as "normal." Compliance brought about or created by such circumstances cannot, as a matter of law, amount to consent. The accused knew that any apparent compliance had been obtained by such means and, in my view, thereby clearly knew that the child was not consenting. 4. There is a yet further alternative means by which I would reach the same conclusion. For reasons articulated earlier in this judgment, I am satisfied beyond reasonable doubt that the persons "Bob", "Toey" and "Lyn" were fictitious entities deliberately created by the accused in order to coerce, threaten and intimidate Complainant 1 into continuing to have sexual intercourse with the accused and to continue to permit filming to occur. The communications which purported to be from those fictitious entities included threats of having battery acid thrown in the child's face; threats to release previously recorded videos to her friends, relatives and/or other persons; and intimidating threats regarding the repaying of a non-existing debt. 5. Such conduct would clearly, in my view, establish that any superficially willing participation was not consent. The messages had been communicated by the accused and he thereby knew that she was not freely consenting. Complainant 1 was, relevantly, under the authority of the accused. 6. I am satisfied, notwithstanding my criticism of the utilisation of such a charge, that the elements of the charge under s 61J(1) are satisfied beyond reasonable doubt. There will, accordingly, be a verdict of guilty with respect to Count 22. 7. I should, for completeness, indicate that were I not so satisfied, I would find the alternative count available pursuant to the provisions of s 61Q(3) of the Crimes Act 1900 and I would return a verdict of guilty to a charge under s 66C(2) which, as I have already pointed out, carries precisely the same maximum penalty, namely 20 years. COUNT 23 1. Count 23 relates to the second act of sexual intercourse described by Complainant 4 in this particular sequence, namely penile-vaginal intercourse between the accused and Complainant 1 on the same occasion. This count is similarly brought pursuant to the provisions of s 61J(1). Without a full recapitulation, I again re-state my remarks regarding the inappropriateness, in my opinion, of this charge in circumstances where there was an available charge under s 66C(2). 2. I am, however, satisfied beyond reasonable doubt of the honesty and accuracy of the account given by Complainant 4. For the reasons articulated above, I have found that Complainant 1 did not consent and that the accused knew that she was not consenting. I am satisfied beyond reasonable doubt that she was under the authority of the accused at the time. There will be a verdict of guilty with respect to Count 23. COUNTS 24 TO 27 (COMPLAINANT 4) 1. Counts 24, 25, 26 and 27 all allege offences relating to the presence and utilisation of Complainant 4 in the taking of a video film of the sexual intercourse which was the subject of Counts 22 and 23 and which was occurring in his presence. I should observe in passing that clear visual evidence of the utilisation of Complainant 4 for such similar purposes was able to be seen in the video files to which I have earlier adverted. I am unaware as to the reasons why no such charges were brought regarding Complainant 4 being utilised as the cameraman with respect to the three video files which were tendered in evidence, particularly where there was such clear and objective evidence of him being so used, independent of any testimony by him. However, in circumstances where the video is not available and the tribunal of fact is now dependent upon satisfaction beyond reasonable doubt of the account given by Complainant 4, a decision has been made to prefer such additional counts. COUNT 24 1. Count 24 alleges an offence contrary to the provisions of s 91H(2) of the Crimes Act 1900, namely producing child abuse material on the occasion which has been described. "Child abuse material" is defined in s 91FB and relevantly means material that depicts, in a way that reasonable persons would regard as being, in all the circumstances, offensive, a person who is a child engaged in sexual activity; a child in the presence of another person engaged in sexual activity; or depicting the private parts of a child. 2. The recording of a video of sexual intercourse taking place between a 13 year old and her 64 or 65 year old step‑grandfather, I am satisfied is properly to be described as child abuse material. I am satisfied beyond reasonable doubt that such material was produced as a consequence of the recording described by Complainant 4. There will be a verdict of guilty with respect to Count 24. COUNT 25 1. Count 25 alleges an offence under s 91G(1)(a) of the Crimes Act 1900, namely using a child under the age of 14 years "for pornographic purposes." The offence alleged is charged as having occurred between January 2011 and March 2013. The relevant offence under s 91G(1)(a) had been amended by that time to an offence of using a child "for the production of child abuse material." This count has been imperfectly pleaded and was not the subject of any application to be amended. The imprecision of the wording in the indictment and the lack of any submissions as to how what is pleaded can be construed in accordance with the legislative amendments of September 2010 leads me to a conclusion that there is no verdict other than a verdict of not guilty with respect to Count 25. COUNT 26 1. Count 26 charges an offence contrary to s 61O(2)(a) of the Crimes Act, namely committing an act of indecency towards Complainant 4, being a person under the age of 16 years, knowing that the act was being filmed for the purpose of child abuse material. I am satisfied beyond reasonable doubt that the acts of intercourse constitute an act of indecency and that they occurred "towards" Complainant 4 in circumstances where they were conducted in his presence. I am satisfied beyond reasonable doubt that Complainant 4 was under the age of 16 years and that the accused well knew that the act was being filmed for the purpose of child abuse material. There will be a verdict of guilty with respect to Count 26. COUNT 27 1. Count 27 relates to the same general circumstances. It alleges, on the occasion described by Complainant 4, that the accused intentionally procured him, being a child under the age of 14 years, for unlawful sexual activity. With respect to this charge, both children were engaged in acts of sexual intercourse. I do not repeat the necessary principles with respect to "procuring" which I have already set out above with regard to Counts 60 and 61. I am satisfied beyond reasonable doubt that the accused did procure Complainant 1 and also Complainant 4 for unlawful sexual activity. Count 27 relates to the procuring of Complainant 4. Accordingly, I return a verdict of guilty with respect to Count 27. COUNTS 12 TO 17 (COMPLAINANT 4) 1. I turn now to Counts 12 to 17. This series of offences derive from the recounting by Complainant 4 in his statement to police in June 2015 of the earliest memory that he had of being in the attic area of the his grandparents' home. 2. With respect to his earliest memory of filming in the attic area, he described the layout of the area up in the ceiling space, the fixed floodlights and the locations of the fixed cameras. Complainant 4 described what he ultimately indicated had taken place on multiple occasions and said: "Normally at the very beginning he would start the camera that was mounted and the camera that wasn't mounted, he would have it, have me record everything that he was doing which was just general sex." COUNT 12 1. Complainant 4 indicated that these episodes had first started when he was in first or second grade and that his earliest memory of sexual intercourse in the roof area was when he was about 7 and a half years of age. 2. He described being told to go into the roof to do the videos and having got undressed up in the roof area. He and Complainant 1 left their clothes just outside the cubby-house area at the top of the pull-down attic staircase. They then followed the accused into the area described as a room closed off with a thick sheet. He described the mattress and the various lights that were there and he said: "He turned on the cameras and then he started having sex with my sister." Complainant 4 described what the accused did: "He made me get one of the cameras and film…and when I was doing that he kept telling me what to do because I didn't understand like, what I was, what I was meant to be doing." 1. Complainant 4 was asked to describe in detail the sex that he had observed. I should note in passing that his description of being told what to do on this earliest occasion is in contradistinction to what he described in the last occasion that they had been in the ceiling where he said he did not need to be told what to do because by then he knew what to do. He described the sex as follows: "Well he got her to sit on one of the corners and then, like, he spread her legs and started having sex with her, like, missionary, so I don't really remember anything else at that point." 1. I am satisfied beyond reasonable doubt of the honesty and accuracy of the account given by Complainant 4 with regard to this first incident in the attic area. The incident which he described was estimated by him to have occurred when he was about 7 and a half years of age. The offence alleged in Count 12 is pleaded as having occurred between dates which encompass the 7th and 9th birthdays of Complainant 4. I am satisfied that the incident which he described in detail did occur within that date range. I am so satisfied beyond reasonable doubt. 2. The offence has been preferred pursuant to s 61J(1) of the Crimes Act. I repeat my earlier observations regarding s 61J and the use of it. However, I am satisfied beyond reasonable doubt that the sexual intercourse which took place occurred without the consent of Complainant 1 who was likely no more than 10 years of age within the time period alleged. I am satisfied that the accused knew that she was not consenting and that she was a person under the authority of the accused at the time. I am satisfied beyond reasonable doubt of the requisite elements of the offence under s 61J(1) of the Crimes Act 1900 and there will, accordingly, be a verdict of guilty with respect to Count 12. 3. Were I not so satisfied, I would be satisfied of an alternative count under s 66C(2) of the Crimes Act. I would not be satisfied that Complainant 1 was necessarily under the age of 10 years and hence I could not be satisfied of an alternative count under s 66A. COUNT 13 1. Count 13 is derived from the same incident. This count alleges an offence contrary to s 91G(1)(a) of the Crimes Act of using a child under the age of 14 years "for pornographic purposes". The date of the incident described by Complainant 4 precedes the legislative amendments to this section which occurred in September 2010. Accordingly, it is correctly pleaded. The legislation prescribed that a child is used by a person for pornographic purposes if the child was engaged in sexual activity or placed in a sexual context. 2. I am satisfied beyond reasonable doubt that the incident described by Complainant 4 in which he was required to hold a camera and film did occur. I am satisfied beyond reasonable doubt that he was under 14 years of age at the time. I am satisfied beyond reasonable doubt that he was placed in a sexual context. There will be a verdict of guilty with respect to Count 13. COUNT 14 1. Count 14 alleges that the accused incited Complainant 4 to commit an act of indecency towards the accused. The Crown particularised this offence as relating to Complainant 4 being encouraged or incited to have sexual intercourse with his sister in the presence of the accused. In the course of the interview Complainant 4 said: "After a few minutes, he would get off of her and he would take the camera and then tell me to go and do what he was doing…and, yeah, instruct me as to what he was doing and that, that was what I should be doing." 1. Complainant 4 in fact went on to describe actually having intercourse with this sister on this occasion. 2. The charge which has been preferred focuses upon Complainant 4 being incited to commit an act of indecency towards the accused while he, Complainant 4, was at the time being under the age of 16 years. I note that the charge on the indictment purports to be a charge under s 61O(2) of the Crimes Act 1900. That section creates an offence of inciting a person under the age of 10 years to commit an act of indecency. The summary document (MFI 8) which was provided to the court particularises this count as an offence of inciting a child under the age of 10 years and it again makes reference to S 61O(2). 3. Regrettably, this is a further example of the imprecision of the drafting in the counts in this indictment. A jury would not be aware of the section which was being charged and would simply have the words in the indictment. The jury would not have a copy of the indictment which included a reference to the section. 4. As the words of the count as pleaded allege an offence under s 61O(1), rather than subs (2), I am satisfied that Complainant 4, as pleaded, was indeed under the age of 16 years and that he was incited as described. There will be a verdict of guilty with respect to Count 14 insofar as it pleads the elements of an offence under s 61O(1). COUNT 15 1. Count 15 is a further derivative or related offence arising out of the circumstances of the intercourse described by Complainant 4 as being the first occasion that he could recall the events in the attic area. The count in the indictment charges an offence contrary to the provisions of s 66EB(2) of the Crimes Act 1900 of intentionally procuring a child under the age of 14 years for unlawful sexual activity. The indictment particularises the unlawful sexual activity as being "with the said MM." In the course of the trial and in closing submissions the learned Crown Prosecutor indicated that Count 15 related to Complainant 4 being procured for unlawful sexual activity with Complainant 1. The summary of offences (MFI 8), which was handed up by consent, similarly identified the procuring as relating to unlawful sexual activity with Complainant 1. I do not yet again repeat my concern at the imprecision of much of the drafting of this indictment, notwithstanding the permissive lack of particularisation which s 66EB(4) provides for. 2. In circumstances where the indictment specifies the unlawful sexual activity and particularises it, it ill-behoves the Crown to invite a tribunal of fact to find an alternative basis upon which to convict an accused. There will in those circumstances be a verdict of not guilty with respect to Count 15. COUNT 16 1. Count 16 relates to an allegation under s 91H(2) of producing child pornography on the occasion described by Complainant 4. I am satisfied that the sexual activity described by Complainant 4 was filmed by him at the direction of the accused. The accused thereby produced child pornography within the relevant definition as the legislation stood at that time. There will, accordingly, be a verdict of guilty with respect to Count 16. COUNT 17 1. Count 17 charges an offence contrary to s 61M(2) of the Crimes Act 1900 of assault with an act of indecency on Complainant 4 when he was under the age of 16 years. This charge relates to the evidence given by Complainant 4 of an occasion when he described the accused making Complainant 4 grab the accused's penis. He described the accused on this occasion as follows: "He did make me grab his penis and start to move my hand up and down it. After a few seconds, 'cos he forced me to do it, after a few seconds I pulled my hand away and stopped." 1. Complainant 4 said that he was about 7 years of age when this event occurred. Later in his interview with the police, he described in more detail the circumstances in which that incident was said to have occurred. He said that the accused had told him to "jerk it" and said that those were the accused's exact words. 2. The accused denied that such an event ever took place and indeed expressed his disgust at such a suggestion. 3. I was impressed by the demeanour and honesty of the account given by Complainant 4. He was a mature young man in my view beyond his chronological years. I accept his account without reservation. I am satisfied that the protestations by the accused in the course of his evidence regarding this particular incident were a verbal equivalent to crocodile tears. I am satisfied beyond reasonable doubt that the incident occurred at a time when Complainant 4 was under the age of 16. Such actions constitute an assault and an act of indecency. There will be a verdict of guilty with respect to Count 17. 4. I indicate that with regard to Counts 18 to 21 I will deal with those tomorrow morning but I move to a consideration of Count 5 in the indictment which relates to Complainant 5. COUNT 5 (COMPLAINANT 5) 1. I turn now to Count 5 in the indictment. Count 5 alleges that between 1 January 2009 and 4 November 2009, the accused had sexual intercourse with Complainant 5, a child then under the age of 10 years, namely 6 years, in circumstances of aggravation, namely that she was a person under his authority. That is an offence contrary to the provisions of s 66A(2) of the Crimes Act 1900. 2. Given the raft of amendments which have been found to be necessary with regard to other counts in the indictment, I am constrained to observe that the closing date in the range within which this offence is said to have been committed, namely 4 November 2009, defies logical analysis when one considers, as I will shortly, that the complainant was interviewed by police on 28 October 2009 on which occasion she made historical allegations, that is, allegations of something in the past, of an event which had occurred prior to that date. 3. On the Crown case, as presented at trial, the event the subject of the charge occurred sometime in August 2009 when the complainant was in attendance at the accused's home. Having been interviewed about the events on 28 October and telling police of something that had occurred in the past, it defies logic to expand the dates of the potential commission of the crime into a date in November. It would appear that that may have been done to coincide with the repetition of an earlier complaint at the child's school. However, it cannot make sense that any allegation could have extended beyond 28 October. 4. Be that as it may, the evidence given at trial was that D1, a natural daughter of the accused, had given birth to her sixth child in 2009. Following the birth of that child, D1 returned home where, shortly afterwards, she was giving afternoon tea to her daughter, Complainant 5, in the dining room. Complainant 5, at that stage, was 6 years of age having been born on 3 June 2003. D1 gave evidence that completely out of the blue Complainant 5 said: "Opa licked my wee wee." Her mother asked: "Where were you?" The child told her: "In the caravan." 5. D1 gave evidence that in January of 2009 her daughter had gone away on a holiday with the accused and also with her cousins, Complainant 1 and Complainant 4. The holiday had been a camping holiday and the accused had taken the caravan to Nelligen. It would appear that D1 presumed that this was the occasion on which the event described by her daughter, Complainant 5, must have occurred. 6. It also appeared in her evidence that in August 2009, shortly prior to the birth of her sixth child, her two daughters, Complainant 5 and her sister who was slightly younger than Complainant 5, had gone down for a weekend to sleep at their grandparents' home. For reasons which will become clear, it is the Crown case that it was during that weekend stay at the accused's home that the incident described by Complainant 5 in the caravan took place. It is completely understandable that D1 may well have immediately presumed that the occasion where something had happened in the caravan was not when her daughter had been visiting her grandmother and grandfather at their house but rather on the occasion when the children had been away on the holiday in the caravan. 7. D1 then told her husband what their daughter had said and she also telephoned her mother, FW, who was, of course, the first wife of the accused. FW was living at that time in central western NSW where her son, S1, the brother of D1, also resided. Complainant 5's maternal grandmother, FW, was called in the trial. I should note in passing that she gave contextual circumstantial evidence with respect to the interaction between the accused and Complainant 1 as she had observed it, including him taking Complainant 1 for a shower when Complainant 1 was about 8 years of age as well as other contextual and tendency evidence regarding the provision of alcohol to the young grandchildren. 8. With regard to Count 5 in the indictment, FW said that she received a phone call from her daughter, D1 and that as a consequence she immediately travelled from her home to her daughter's house in Wollongong. She said that when she walked into the house Complainant 5 immediately said to her: "Opa licked my wee wee." After a discussion with her daughter, police were contacted. Police came to the house later that day and in due course FW went to the police station where she made a statement. 9. On 26 October 2009, Complainant 5 was at school when she told a casual teacher at the school: "Opa is going to jail because he touched my private part." She went on to tell the casual teacher: "He licked it." The casual teacher recorded the conversation with the child and that note became Exhibit JJJ. 10. On 28 October 2009, Complainant 5 attended Wollongong police station with her mother and she was interviewed by means of a recorded interview on that occasion. The video recording of that interview was played in Court and became Exhibit GGG. A transcript of the interview was marked as Exhibit GGG1. She told police that Opa had licked her on the private part and that it happened in a caravan. It is to be observed that there was a deal of confusion between the interviewer and the child which, in my view, is to be explained, in part, by the form of her questions. An example flows from Question 72. The interviewer asked, intending to refer to the assertion that the child's private part had been licked: "And where are you, where are you when this happens, when Opa does this?" The child's response was: "Here." 11. The literal response to the part of the question which was framed as "where are you" is not something which would come as a shock to anybody with experience in asking questions of young children. The questioner, correctly perceiving that the child was answering as to where she was presently, that is, at that time, responded: "Yeah, you're here today, yeah, when opa licks you on the private parts where was that at, where at?" The child responded: "Mm Wollongong." 12. Having viewed the recording of the interview, I formed the distinct impression that the child was answering where she was "today" which was, of course, in Wollongong. The interviewer then continued with the proposition that the child had been "in Wollongong" and interpreted her response to be, so far as the questioner was concerned, about where the child had been when she was being licked. The questioner said: "Yeah, in Wollongong, are you at a house or are you somewhere else?" The child responded: "At a house." Q 75. "And whose house is that?" A: Complainant 1's and Complainant 4's. Q76: So you are at Complainant 1 and Complainant 4's? A: Yeah. 1. The effect of those questions and answers was submitted, on behalf of the accused, as pointing to the unreliability of the account given by Complainant 5. In my opinion the child was, in fact, describing where she was staying in Wollongong at the time of the interview. 2. It led, in the subsequent course of the interview, to some continuing confusion between the two occasions on which the child claimed to have been connected with the caravan: January, whilst camping when Complainant 1 and Complainant 4 were present; and August, when her sister was present at the house and the caravan was located in the driveway of her grandparent's home. There is no suggestion that what the child was asserting about the alleged licking of her private parts had occurred at Complainant 1 and Complainant 4's house, although that might be a literal way of reading the way in which the answers were given. In my opinion, a fair reading of the whole of the interview, together with a careful watching of it, including the demeanour of the child, leads to a clear understanding that the incident which she repeatedly and consistently described had occurred on an occasion when she was at her grandparents' home and her sister was also present in the general vicinity, albeit not in the caravan when the incident occurred. 3. Complainant 5 was re-interviewed in November 2015 (Exhibits HHH and HHH1) by which time she was 12 years of age. I note, of course, that the earlier interview gave rise to no charges being laid, other than the fact that some members of the family obviously heard about the allegation. I am completely unaware as to what, if any, investigation ensued after the interview. 4. When re-interviewed at 12 years of age, Complainant 5 adhered to the essential allegation of her vagina having been licked by the tongue of her grandfather and she adhered to the proposition that her sister had been present and the caravan had been located at her grandparents' home. It is trite to observe that with respect to some collateral issues, such as the colour of clothing which was being worn, whether the incident occurred on the permanent bed of the caravan or on the change table (and I note other evidence in the trial indicated that the table area could itself be converted to a bed) there are variations and inconsistencies regarding aspects of her account, which are pointed to on behalf of the accused as justifiably leading to a reasonable doubt about the allegation which is brought. That submission was strongly put by Ms McSpedden on behalf of the accused, who addressed in relation to this count before touching upon any of the other counts in the indictment. 5. I should note that in addition to the complaints which I have already outlined, there was a further complaint made at Complainant 5's school by her on 4 November 2009 in circumstances where she was seen by a teacher to be continually touching herself around the vagina, pulling her underpants to one side and exposing her vagina. She was overheard saying to other young students: "Opa licked me there." 6. I carefully observed the demeanour of the then 6-year old Complainant 5 when she was interviewed by police. I similarly watched her demeanour carefully when she was re-interviewed at 12 years of age. Similarly, I watched her demeanour when she gave evidence from the remote location during the trial. I have had regard to the consistency of her initial complaint and the subsequent complaints to her grandmother and to persons at the school. 7. I have given consideration to the tendency which I find established beyond reasonable doubt and which I find based on facts of which I am satisfied beyond reasonable doubt regarding the accused and very young children. I am satisfied beyond reasonable that he had sexually interfered with Complainant 1 when she was about five years of age. 8. I will deal with allegations with him having sexual interaction with Complainant 4 when he was about 7 or 8 years of age in due course, to the extent that I have not already dealt with them. I will similarly deal with complaints made regarding interaction with Complainant 2 and Complainant 3 when they were of tender ages when I deal with the counts regarding them. 9. I would be satisfied beyond reasonable doubt of the honesty and accuracy of the fundamental allegation brought by Complainant 5 independently of the tendency evidence to which I have referred. That evidence, however, further reinforces the conclusion that I have otherwise reached. I am satisfied that an act of cunnilingus occurred and that by virtue of the statutory definition, there was an act of sexual intercourse between the accused and Complainant 5 in August 2009. I am satisfied that she was under 10 years of age of that time. The verdict in respect of Count 5 is a verdict of guilty. COUNTS 1 TO 4 (COMPLAINANTS 2 AND 3) 1. I turn now to a consideration of Counts 1 to 4 in the indictment. These counts relate to Complainant 2 and Complainant 3 who were sisters, and granddaughters of the accused. Their father, S1, was the accused's own son. Each of these complainants was called to give oral evidence in the presence of the accused. 2. The eldest sister, Complainant 2, was born in 1994. She described seeing the accused whilst she was growing up, variously on family holidays or when he visited them or when she and her sister went down to his house to visit. Unlike her younger sister, she liked going fishing with her grandfather. She recalled a specific incident when she was about 11 years of age, which would place it in approximately 2005. She thought she had been in Year 6 at school at the time. She described having gone to McDonalds at Nowra with her sister, Complainant 3, and also her cousin, as she described her, Complainant 1. They were in the car with their grandfather. Complainant 3 and Complainant 1 went out of the car to get some food whilst Complainant 2 stayed in the vehicle with her grandfather. She recounted a conversation with her grandfather in which he asked her if she had ever kissed a boy before. When she replied "no", he asked if he could show her how to kiss a boy. She again replied "no". She described incidents of being allowed to drive her grandfather's 4WD motor vehicle and sitting on his lap around some of the quieter roads near the accused's house or on dirt roads. She recounted the accused saying that it felt nice when she was sitting on his lap. 3. Complainant 2 also recounted a conversation with her grandfather around the age of 11 in which he complimented her for having "a beautiful body." He told her that if she wanted to get into modelling, she would have to do pornographic and nude photos first. He described that if she did do some photos or videos, that they would be sent to China to a man called "Bob." I note in passing the references to the man called "Bob" and the potential significance that they have in light of other evidence to which I have already referred. COUNT 2 1. Complainant 2 also described an incident of being shown some drawers at the back of her grandfather's white Nissan Patrol 4WD which were able to be locked with a key. According to her account, her grandfather showed her pornographic magazines and a bundle of cash. She indicated a bundle of notes approximately 2 centimetres in thickness and she said that he put it into her hands. He said that if she wanted to make money like that, she would have to get into pornographic videos and nude photos. He also showed her a photograph of a naked female that he had kept in the locked drawer. 2. She described a silver camera that he had in which he inserted an SD memory card and showed her a video on the camera. She described that the video showed Complainant 1 lying on a bed in the caravan. She estimated that Complainant 1 appeared to be between four and five years of age and was "still sucking her thumb." Complainant 1 was naked on the bed with one of her legs up in the air. The video showed her grandfather with an erect penis who moved close towards the vagina of Complainant 1. She said that her grandfather told her: "The hardest part is getting the knob in, the rest is easy." 3. Complainant 2 said that the accused told her that that was how easy it was and that if she wanted to make money, "the offer is there." She did not tell anyone about the incident at the time. She thought that the video which she had described was shown to her when she was about 12, not much older than the Nowra incident regarding how to kiss that she had earlier described. 4. This action, that is of showing Complainant 2 the vision of video depicting Complainant 1, in the manner as described, is said to have occurred between March 2006 and March 2008 when Complainant 2 was 12 or 13 years of age. It is relied upon by the Crown as the basis of Count 2 in the indictment, namely an offence of disseminating child pornography contrary to the provisions of s 91H (2) of the Crimes Act 1900. 5. Later in her evidence, Complainant 2 described having been shown the room in the attic of her grandparents' home. Complainant 1 had shown her the cubby-house up in the attic space and she described seeing a light in the distance further across the roof space. Complainant 1 told her that it was "MM's special spot." She described that she was never particularly close to Complainant 1 because Complainant 1 was clearly a favourite in the eyes of her grandfather. She said that the suggestion about needing to do pornographic photos if she wanted to go into modelling was something that her grandfather repeated "every time I seen him." 6. Complainant 2 recounted an incident that occurred when she was 14 or 15 when her grandfather drove her down the coast and they stayed at a caravan park. Complainant 2 had apparently met a boy online who was about 17 years of age. Her grandfather organised to get some alcohol so that she and the boy could have a drink when he came to visit. She described her grandfather purchasing a carton of "Cruisers" which she and the young boy who visited both drank. I understand the reference to "Cruisers" being to a popular alcohol and soft drink mix. She said that she "got really drunk" and did not remember a lot from the night. She described that on many other occasions with her grandfather, he had provided alcohol to herself, to her sister, and to various of the other young grandchildren. She also recalled an offer of marijuana and a suggestion that he could obtain other drugs. 7. Complainant 2 recounted a specific incident of going to Nelligen for a family holiday in January 2008. Complainant 2 and her young sister were camping with their parents and various other members of the extended family of the accused were also present. She described her grandfather speaking of his second wife in derogatory terms saying: "She's a depressed bitch." She recalled that on one occasion (not at Nelligen), her grandfather had told her that he paid for sex because he "didn't get any" from his second wife. She thought she was about 15 or 16 when she had that conversation with him. COUNT 3 1. With regard to the camping trip to Nelligen, which had occurred when she was 13 years of age, she explained that mobile phones would not work at the caravan or campsite but by driving to the top of a nearby mountain one could get reception. She described an occasion of going up to the top of the mountain with her grandfather on her own in his vehicle. She described that: "…he talked me into taking my clothes off and taking nude photos of myself…he told me to sit in the front seat of his car and to spread my legs and vagina." 1. She said that he was taking photos in the course of those events. She said that she saw one of the photos on his camera after he had taken the images. She said that the accused, her grandfather, told her: "It's as easy as that and don't tell your father." To the best of her recollection, she was given $50 after the incident when the photographs were taken at some point on the Nelligen camping trip "when my parents weren't around." 2. These facts are relied upon in support of Count 3 in the indictment, namely, using Complainant 2, a child under 14 years, for pornographic purposes. This is an offence contrary to s 91G (1) (a) of the Crimes Act 1900 as it was at that time. COUNT 4 1. Count 4 is a corollary of the circumstances relied upon for Count 3. Relying upon the same facts, it is an allegation relating to the production of child pornography contrary to the provisions of s 91H (2) of the Crimes Act 1900. Both Counts 3 and 4 are pleaded as having occurred in the calendar year 2008 and they focus upon the camping trip to Nelligen which the evidence establishes occurred. 2. Complainant 2 also recalled a caravan trip to the snow with her sister and Complainant 1. They stayed in the caravan and she thought she was between 16 and 17 years of age at the time. That, if correct, would place the incident around 2010 or 2011. Whilst on this camping trip with the caravan, she recalled observing her grandfather and Complainant 1 showering together during the trip. She also recalled a specific incident in the caravan when her grandfather showed her a container of white pills and told her that if she took one it would relax her and she would not feel anything. She understood that as referring to during sex. She declined the offer. 3. She also gave an account of an incident at a Harvey Norman store when she had asked her grandfather for a laptop because Complainant 1 had supposedly been given one. According to Complainant 2, the accused told her that she would have to do "porno movies and have photos taken" because he would need to get the money from somewhere in order to pay for a laptop. She also declined the offer and was told: "Well, you can't have one." 4. The nature of the accounts given by Complainant 2 and Complainant 3 were extensive, notwithstanding the limited number of charges that have been preferred and given the situation with the accused and also with other concerns that I have I will need to pick up the delivering of this aspect of the remarks tomorrow morning. ADJOURNED TO THURSDAY 8 MARCH 2018 THURSDAY 8 MARCH 2018 DECISION CONTINUED HIS HONOUR: 1. I had got to that portion of my remarks yesterday where I was dealing with Complainant 2 and I had got to that point where I had made reference to the suggestion of the acquisition of a laptop and I shall pick it up from that point. 2. Complainant 2 indicated that her first complaint regarding her grandfather's conduct had been raised with two nominated boyfriends during her teenage years. They were the first people to whom she made complaint. The Crown led evidence that each of those nominated and identified boyfriends was not available to be called to give evidence. 3. Complainant 2 indicated that she first made complaint to one of her parents when she was about 15 years of age and had a conversation with her father. She said that following that conversation with her father, she never again had any contact with her grandfather. 4. It is trite to observe that if this recollection and timing is accurate, her subsequent recollection of being 16 or 17 years of age at the time of a caravan trip to the snow cannot be correct. Whether that inconsistency merely goes to the age that she was when the camping trip occurred, or whether it goes to a more fundamental defect in the recounting of an incident, is a matter to which I will need to give careful consideration. 5. In the course of cross-examination, a series of propositions were put to Complainant 2 which focused on the witness having jealousy of Complainant 1 because of the favouritism shown towards her by her grandfather and a suggestion that there had been a falling out between the accused and his son, S1, in about 2009 which it was suggested had ultimately led Complainant 2 to fabricate allegations in support of her contentions that she had raised regarding the accused's alleged conduct with Complainant 1. It was suggested to her by Ms McSpedden that there were never any occasions of the particular kind that she had described regarding improper conduct by the accused. She agreed that she had not said anything about naked photographs being taken of herself until 2015 when she made her statement. Complainant 2 said that she had not said anything in making complaint about other conduct until 2009 because: "I was embarrassed and ashamed that my grandfather would do such a thing to his granddaughter." She denied that she had invented it because it was consistent with what she knew about allegations in respect of Complainant 1. 6. In re-examination by the learned Crown Prosecutor, she re-asserted that she was unaware of the detail of the allegations made by Complainant 1 or by Complainant 4 at the time that she made her statement to police. COUNT 1 1. Complainant 2's younger sister, Complainant 3, was also called to give evidence. Complainant 3 was born in 1997 and was 22 years of age at the time of giving evidence. She described usually visiting her grandparents in the school holidays, sometimes with just her sister Complainant 2, and sometimes with her parents. She was not interested in fishing or the other outdoor activities that her grandfather enjoyed, so she usually stayed back at the house cooking with her grandmother or going shopping and doing other things around the house. 2. She said that she had a specific recollection of a trip when her grandfather had taken her out to his white 4WD and showed her the compartments with the drawers in the rear of the vehicle in a strikingly similar circumstance to that described by her sister, Complainant 2. Complainant 3 said that he had pulled out a picture of a naked young girl together with a big bundle of money. He placed the cash in her hand and made her hold it and showed her the photo. She could see the vagina of the girl who was naked and she could see that her breasts were not developed. She could not see her face. Complainant 3 said that her grandfather said to her: "If you do something like this, you could get this amount of money." I should note in passing that if Complainant 3's estimate of her own age is accurate, this alleged incident would have occurred in about 2005 or 2006. 3. Following the incident which she described, she said that he then took her into his caravan which was parked outside the house. He manoeuvred her arms and legs into different positions and told her that the different positions would get different amounts of money if photographs were taken of her naked in those positions. 4. This physical interaction between the accused and Complainant 3 at a time when she was about 8 or 9 years of age in the context of the preceding showing of a photograph of a naked child is relied upon by the Crown as constituting the offence which is charged in Count 1 of the indictment, namely an assault of a person under the age of 10 years and at the time of such assault, committing an act of indecency in the presence of the child. This is an offence contrary to the provisions of s 61M(2) of the Crimes Act 1900 and would require satisfaction beyond reasonable doubt of the honesty and accuracy of the account given by Complainant 3. 5. Complainant 3 recalled a separate occasion when they had gone camping to Burrinjuck Dam. They had gone with their grandfather and his caravan and there were four grandchildren on this trip, namely herself, her sister, Complainant 2, and also Complainant 1 and Complainant 4. She described an incident where she said Complainant 4 was excluded from the caravan and locked outside and she described her grandfather pulling out some pornographic videos and also some vibrators and other sex toys. She said: "I was so young I had no idea what they were." She thought she had been about 11 years of age at the time of this incident. She said the pornographic videos were played on the TV in the caravan and that it was adult pornography. She said that nothing was said about the sex toys and other than lying on his bed, nothing sexual occurred with respect to the accused. 6. Complainant 3 went on to describe an incident the following day when her sister, Complainant 2, had screamed and run out of the caravan. The two of them then ran away to the kiosk of the caravan park to try and phone their parents. She gave no detail as to what the incident with Complainant 2 was alleged to have been. 7. Complainant 3 also gave evidence regarding what might be perceived to have been inappropriate sexual comments by her grandfather. At 13 or 14 years of age, she was visiting her grandparents' home together with a friend who had large breasts for her age of about 13 or 14. The accused was said to have commented: "Wow, what big boobs you have." 8. At about the age of 14, which would place it in approximately 2011, Complainant 3 said that she had a conversation with her sister, Complainant 2, about the incidents involving the holding of money and being in the caravan and put into various positions. She said that following that conversation the two of them went to speak to their parents about the situation with their grandfather. She said that contact ceased with their grandfather after that complaint had been raised. 9. Complainant 3 also gave evidence regarding the provision of alcohol from time to time both to herself and to other grandchildren when they were quite young. She thought she was 7 or 8 when she was first given alcohol by her grandfather. 10. In cross‑examination, it was suggested the only exposure to pornographic videos that she may have had was an asserted exchange of VHS recordings between her grandfather and her own father. It was suggested to her that there was conversation to the effect that they were "swapping porn videos." Complainant 3 refuted that suggestion. Having referred to the video recordings as DVDs in her evidence-in-chief, she claimed in cross-examination that they were in fact videos which were "bulky." 11. It was suggested to her in cross‑examination that her sister, Complainant 2, had wanted to watch a porn video and that this was the subject of a joke with their grandfather but that no pornographic video was actually played. As I understood the suggestion, it was being put that a conversation to that effect had in fact taken place in the caravan during the relevant trip. It was suggested to her that there was no means of actually playing a VHS recording in the caravan as there was only a DVD player. 12. Complainant 2 and Complainant 3's mother was also called to give evidence. She gave evidence of what she perceived regarding the relationship between the accused and various of the grandchildren and in particular the favouritism, as she saw it, that had been demonstrated towards Complainant 1. She recalled an occasion when the accused had described Complainant 1 as having "a bit of rash down there" in circumstances where Complainant 1 had come out of the caravan holding her groin. She thought that incident occurred when Complainant 1 was about 8 years of age. 13. She recalled an incident which would appear to have been shortly after the complaint by Complainant 5 in 2009 where, whilst on a camping trip away, the accused's wife had accused him of being a paedophile. The accused had come out of the caravan and said: "See what I have to put up with. Now she's accusing me of being a paedophile." 14. Complainant 2 and 3's mother dated the complaint from her own daughters regarding aspects of their grandfather's alleged conduct as having occurred perhaps a week after Complainant 5 had made her statement to police. If her recollection as to this date is accurate, that would place it sometime in late 2009. 15. She recalled that shortly after those events, Complainant 2 had told her about her grandfather showing her pornography and also having seen nude photos of Complainant 1 on the camera as well as watching pornography in the caravan. Following these complaints having been raised with S1 and his wife, S1 contacted his father by sending him an SMS text saying words to the effect: "Please do not come into contact with me or my children again." Shortly after that message was sent, Complainant 2 received a message from her grandfather saying: "Why did you dob." Thereafter they had no contact with the accused. 16. On 21 June 2015, S1 was contacted by SD2 and given information with respect to the fact that his father had been arrested by police. Although the terms of the conversation were not explicitly given in evidence, I would infer from the surrounding evidence that the communication likely included at least some aspects of the allegations that have been raised by Complainant 1. Shortly after this information was received by S1 and also communicated to his wife, his wife had a further conversation with Complainant 2 who was at that time travelling in a motor vehicle from Sydney back to their home. In that conversation, Complainant 2 told her mother about the allegation of nude photos being taken of herself at Nelligen on the occasion when she said she had been driven up the mountain to get phone reception. Her mother then made a formal statement to police on 30 June 2015. 17. The cross-examination of Complainant 2's mother implicitly raised the possibility of contamination of the subsequent assertions by Complainant 2 and Complainant 3 as a consequence of her becoming aware of the detail of the allegations raised by Complainant 1. It was put to her that she had never observed the accused giving any of the children alcohol. She responded succinctly: "He did." 18. Complainant 2 and Complainant 3's father, S1, was also called to give evidence. He similarly gave evidence of having observed his father "trying to push alcohol into the children." S1 indicated that that was a topic which had been the subject of discussion between himself and his father, the accused. S1 also gave evidence about observations regarding Complainant 1 being the favourite amongst the grandchildren. S1 corroborated conversations regarding the accused claiming to know somebody who would be able to take photos for modelling purposes and conversations to that effect with his daughter, Complainant 2. S1 had also been present on the occasion when Complainant 1 had complained about her "private spot" being sore and conversation from his father, the accused, about Complainant 1 having a rash. 19. Some of the evidence to this effect from S1 and also from his wife requires a degree of circumspection in considering its significance, as viewed in isolation, some of the material is capable of being seen as possibly having a revisionary perception. Viewed in another way, comments which did not cause suspicion or reaction at the time might be perceived as taking on a different hue or perspective when viewed retrospectively after the allegations of sexual impropriety and misconduct had been raised. 20. With regard to the complaints by Complainant 2 and Complainant 3, S1 gave evidence about being advised of allegations with respect to his father having shown Complainant 2 and Complainant 3 pornography videos and also having been offered marijuana. Of significance when the complaints were made in approximately 2009, Complainant 2 had raised the proposition that the accused had shown her photos of Complainant 1 naked which were contained in his camera. Following S1 sending a message to his father saying to never come near the family again Complainant 2 had received the SMS message from the accused: "Why did you dob." S1 also had seen that message on his daughter's phone. 21. The accused, as I have earlier indicated, gave sworn evidence in the course of the trial. With respect to Complainant 2 and Complainant 3, he volunteered that he had taken a photograph of Complainant 2 but denied that it was when she was naked. He said that he had taken a photograph of her in the swimming pool at S1's house. He said that she was around 14 or 15 and it was implicit in his evidence that the photograph was when she was wearing a bikini. He denied the other allegations by both girls. 22. Against the above detail of the evidence with respect to counts 1 to 4, I have carefully weighed up the various accounts of both Complainant 2 and Complainant 3 and I have given specific consideration to the question of whether or not there is too much consistency in some respects between their accounts. In that regard, I specifically point to the holding of money at the rear of the car whilst being shown a photograph which might point to either contamination or collaboration. The question of cash money being kept in the rear of the motor vehicle is not a matter that exists in a vacuum or only in the evidence of Complainant 2 or Complainant 3. Each of the other children, Complainant 1 and Complainant 4, gave similar evidence regarding the presence of bundles of notes in the rear of their grandfather's car. Complainant 5, even though she was only six at the time of the allegation she raised, had been given a sum of money she said by her grandfather, albeit, particularly given her age, she said it was $3. 23. A tendency to proffer and also to give the children alcohol in the fashion described in the course of the evidence strongly supports the tendency contended for by the Crown in that regard. The location on the SD memory card which was seized by police of images of Complainant 1 in precisely the types of pose described by Complainant 3 is strongly supportive of the likelihood of the showing of a photograph as described by Complainant 3. It is also strikingly similar to the description given by Complainant 2 of the poses that she was asked to assume when she said photographs had been taken of her on the occasion at Nelligen. 24. I have given a deal of consideration to the question of whether or not the Court can be satisfied that photographing took place as described by Complainant 2, particularly in the absence of the actual images said to have been taken. I note that there is direct evidence in conversations recorded with the accused by way of conversations that might be construed as admissions whilst he was in his jail cell and with the registered informant regarding the destruction of recorded images which had been retained by him. 25. Ultimately, and having paid particular attention to the demeanour of each of the girls respectively and the timing of the specific complaints to their parents, I have come to the view that their accounts can be accepted as honest and accurate. I note that the contention that Complainant 2 had seen images of Complainant 1 naked would appear to have been raised in about 2009 or possibly 2010 at a time long before Complainant 1 herself raised any allegation of such an occurrence. Ultimately, I am of the view that the offences pleaded in Counts 1, 2, 3 and 4 in the indictment are satisfied beyond reasonable doubt. I accordingly return verdicts of guilty with respect to each of those counts. COUNT 8 (COMPLAINANT 1) 1. In light of the finding which I have reached regarding the honesty and accuracy of the description given by Complainant 2 of the video which she was shown, I turn now to a consideration of Count 8 in the indictment. Count 8 is an allegation of aggravated indecent assault by the accused upon Complainant 1 when she was under the age of 16 years, namely 4, 5 or 6 years, contrary to the provisions of s 61M(1) of the Crimes Act 1900 as it was at the time of the alleged offence, namely, that he assaulted and committed an act of indecency on Complainant 1 who was then under the age of 16 years, that being a circumstance of aggravation. 2. Having accepted the evidence of Complainant 2 beyond reasonable doubt with regard to what she said she was shown, and accepting her recollection as to the time that she was shown that video and what she saw depicted in it, in conjunction with the other tendency evidence, I am satisfied beyond reasonable doubt that the vision seen by Complainant 2 depicted an event which showed an assault with an act of indecency by the accused and that such act of indecency took place on, in the sense of in the immediate physical presence and vicinity, of Complainant 1 who was then aged 4, 5 or 6. There will accordingly be a verdict of guilty with respect to that allegation. 3. Before leaving this charge, I should observe that the charge might have been preferred under subs 61M(2) in the form that it existed at the time of this offence. However, that is not what has been pleaded. COUNTS 18 TO 21 (COMPLAINANT 4) 1. I return to a consideration of Counts 18 to 21. These counts relate to a specific incident described by Complainant 4 during his interview with police on 23 June 2015 when, as I have observed, he was 14 years of age. After describing the events which had occurred in the attic space involving intercourse between his grandfather and his sister, he was asked by police whether sexual activity had occurred in any other place. He told the police in response to Question 284 in his interview: "l remember one other time it occurred in his old car. He doesn't own it now but I don't remember where, where he went with it or anything but I remember we were, we were a fair bit older but, yeah, he put down the front seats, like he folded them forward and then that was another instance where he gave me one of the pills." 1. I pause to interpolate that that was a reference to having been given Viagra at the age of 9 or 10 by his grandfather who at that time would have been over 60. I continue Complainant 4's answer: "I didn't do anything, I denied again and this one was like where he got me to record it and I, I couldn't get to the angle that he wanted to so he took it and he recorded it whilst he was having sex with her and about a minute he, he stopped it because Complainant 1 was currently on her period and it had intervened with him recording so he turned off the recording and everything. They both cleaned up. I was still dressed and we drove back to his place." 1. Complainant 4 went on to describe that he thought he had been about 9 and a half years of age at the time of this offence and he thought that his sister would have been 10 or 10 and a half. I note in the course of his evidence he consistently underestimated the difference between their ages and that his sister, Complainant 1, was in fact about 18 months older than he was which, more likely if his recollection of his own age was correct, would have placed her at about 11 years of age. If Complainant 4's recollection of being 9 and a half himself is accurate, that would likely place the incident somewhere approximately in the latter part of 2010. I note that the indictment as originally presented pleaded that it had occurred between 18 March 2010 and 19 March 2011, that is, during the calendar year when Complainant 4 was in fact 9 years of age. 2. In the course of his interview, however, Complainant 4's recollection was that it was in the "silver" motor vehicle that had been owned by his grandfather. At the conclusion of the evidence in the trial, the Crown amended the indictment to accord with the dates on which the accused had owned the silver Nissan Patrol rather than a period of time which expanded into the period when he owned the second white Nissan Patrol. 3. Complainant 4 went on to describe the considerable detail of what he had observed and what it was that he was required to film on this occasion. He told police that the accused: "had Complainant 1 lying down at an angle on the seats with her legs opened and he grabbed onto the headrest on one of the seats and the thing attached to the roof which you hold onto when you're, like, going over bumps in the car and then he started to have sex with her and after a minute, because Complainant 1 was on her period, she started to bleed and he stopped recording." 1. Complainant 4 described how he had been filming with the camera at the direction of his grandfather before, as he termed it, "Opa" took the camera from him and continued filming himself. In giving the detail of this incident, as I have already indicated, Complainant 4 described that, as on previous occasions with his grandfather, he had again been supplied with a Viagra tablet which the accused compelled him to consume. 2. In the course of the interview with police, Complainant 4 physically demonstrated the various positioning of his grandfather within the vehicle during the course of the sexual activity and also the way in which the accused and his sister had conformed to the physical layout of the vehicle. I have no reasonable doubt whatsoever that Complainant 4 described to police an actual incident which he had witnessed and which he had filmed. I have had cause to reflect on the detail as to the possibility that the bleeding which he observed may have been from trauma rather than from menstruation. 3. Complainant 1, whilst giving evidence of various occasions of intercourse in the motor vehicle, was not asked specifically about this incident that had been described by her brother. If she had in fact commenced her period (which is likely in light of other evidence given in the trial by her about that fact), it is probable, given the age at which she had commenced menstruating, that the incident must have occurred in the second white Nissan Patrol rather than the silver one which had been owned by the accused when Complainant 1 was 10. No questions were directed to Complainant 1 about whether or not he could have been mistaken given his age as to which of the cars he had been in, noting of course that at the time of the interview he was 14 years of age and he was describing something that had occurred perhaps four or five years earlier. 4. The defence case, of course, was that there was never any such incident of intercourse being filmed in a motor vehicle and never any incident such as described by Complainant 4. I have come to the view that the date range pleaded is not a critical element in the determination of this charge. A date range may well be relevant in circumstances where the age of a child at the time of the commission of an offence is an element which needs to be established. It is possible that the event described by Complainant 4, which I am satisfied beyond reasonable doubt is an accurate and honest description of a real event, did occur in the silver Nissan and that his recollection of his own age is incorrect. It may be that the blood which he observed was from trauma rather than menstruation. Alternatively, it may be that he was mistaken as to the colour of the car and that the event occurred at a slightly later time in the same model of vehicle albeit of a different colour. 5. Count 18 is a charge brought under s 61J(1) of the Crimes Act 1900. I reiterate, without repetition, my observations earlier in these remarks with regard to the election by the Director's office to proceed on such a count rather than an offence under s 66C. However, I am satisfied that what was described was an actual act of intercourse and that, within the relevant understanding of the law and facts surrounding this incident, Complainant 1 was not consenting and not consenting to the knowledge of the accused. There will in those circumstances be a verdict of guilty with respect to Count 18. COUNT 19 1. Count 19 is a derivative offence arising from the same occasion. It is charged pursuant to s 61O(2A) and alleges that Complainant 4 was incited to an act of indecency with the accused knowing that the act was being filmed for the purposes of the production of child pornography. Child pornography was the relevant terminology at the time of the commission of this offence. 2. Count 19 relates to the accused having incited Complainant 4 to film the intercourse taking place in the motor vehicle. I am satisfied beyond reasonable doubt that the accused gave Viagra to his young step-grandson and encouraged him to film the activity taking place. I am satisfied beyond reasonable doubt that involving a young person such as Complainant 4 to be in close proximity to the unlawful sexual intercourse which was taking place amounts to involving him in an act of indecency by the very act of filming in such close proximity. I will later in these remarks make some comments with regard to the distinction at law between an act of indecency "with" as opposed to an act of indecency "towards." However, in the scenario that I am currently dealt with, given the close proximity of the filming, I am satisfied beyond reasonable doubt that the offence as charged is made out. There will be a verdict of guilty with respect to Count 19. COUNT 20 1. Count 20 is another related offence pursuant to s 91H(2) of producing child pornography on the same occasion. I am satisfied beyond reasonable doubt that the incident not only took place, but that it was filmed, and the child pornography, as defined under the legislation at that time, was thereby produced. There will be a verdict of guilty with respect to Count 20. COUNT 21 1. Count 21 is a yet further related offence arising from the same incident. Count 21 alleges that Complainant 4 was used for pornographic purposes contrary to the provisions of s 91G(1A) of the Crimes Act 1900 as it was at that time. For the reasons that I have articulated with respect to the other charges relating to this incident, I am satisfied that Complainant 4 was so used. There will be a verdict of guilty with respect to Count 21. COUNT 67 (COMPLAINANT 1) 1. I return to Count 67. In the course of delivering my remarks yesterday, I had, after dealing with Count 68 and 69, namely the supply of cannabis and of Endone (oxycodone), then turned to a consideration of Count 67. I had done so in that order because, as I commenced to say yesterday, Count 67 had been said by the Crown to arise on the factual material in conjunction with the supply of cannabis and supply of oxycodone that was relied upon for Counts 68 and 69. I had intended to continue to deal with the proposition that there was a difficulty in the Crown's submission because the dates of the supplies in Counts 68 and 69 were different from the dates focused on in Count 67. 2. There was a further difficulty, namely that the conduct pleaded in Count 67 was exposing Complainant 1 to indecent material and, notwithstanding the submissions by the learned Crown Prosecutor both in opening and in closing, I was having some difficulty in understanding the context in which the provisions of drugs might be construed as exposing to indecent material. I have no difficulty in understanding that the general concept of grooming, as used colloquially and in accordance with the dictionary definition, and may I say as defined in the Commonwealth Criminal Code, embraces a wide range of different aspects which are activities carried out by older persons intending to groom younger persons for the purpose of sexual activity. However, the Crimes Act 1900 (NSW) has specific definitions regarding the manner in which grooming might be said to occur and whilst the provision of drugs and alcohol may well be an aspect that can be relied upon in some circumstances, and indeed might have been in this case, the particular charge pleaded in Count 67 focuses on the exposure to indecent material. 3. The manner in which the learned Crown had opened regarding Count 67 (which one finds at p. 22 of the trial transcript) focused on the supply of prescription medicines and cannabis and alcohol. In his closing address, the learned Crown Prosecutor similarly submitted that Count 67 derived from the supply of cannabis and Endone that had been dealt with in Count 68 and 69. At transcript p. 666 the learned Crown said: "Charge 67 relates to grooming for the purposes of taking part in the sexual activities and that is borne out by, your Honour, the charges in 68 and 69 that the Crown would be submitting that the provision of cannabis and Endone form part of that activity of grooming, whilst they are 35 charges that relate to an offence within the prohibited Drug Misuse and Trafficking Act, they also amount to activity which could fall within the definition of grooming for the purpose of s 66E(b)(3). So that is what count 67 relates to." 1. It was as a consequence of focusing on that particularity that led me to make the remarks that I had made yesterday and was leading me into further comments in that respect. 2. In light of the timely interruption by the learned Crown, and his advising the Court that the contents of Exhibit H were what was being relied on in support of Count 67, I turned to further consider that count overnight. I should frankly note that the reliance upon Exhibit H for that purpose had not become clear or not been made clear in the course of the trial, nor any submissions made by either counsel regarding it or its ability to constitute indecent material in the course of addresses. However, having looked at the detail of the circumstances of the tender and the manner in which various amendments were made to the indictment at the conclusion of the evidence in the trial, I note that Count 67 had been amended to align it with the dates alleged for the incident at the hotel/motel at Albion Park Rail which was the subject of the charge in Count 66. 3. I acknowledge that the learned Crown Prosecutor did refer to the concept of grooming "overall." In those circumstances and bearing in mind the manner in which the trial has been conducted, I do not now propose to confine the Crown to the particularity of his closing address. If I am in error in that regard, no doubt others will take a different view. Indeed, as I have earlier noted, the provision of drugs would constitute a different offence in the manner of its pleading and rely upon a different part of the definition of "grooming" from that which, in fact, has been pleaded. 4. Attending to the actual pleading, namely, an exposure to indecent material, and looking at the alignment of the dates in accordance with the Albion Park Motel incident, I turned overnight to a consideration of whether the provision of Exhibit H, namely, the "Bob" letter giving explicit directions as to the manner of the performance of sexual activity in a motor car, constituted exposure to indecent material. 5. I have focused yet again on the terminology in the "Bob" letter. Without even considering the fact that those communications had emanated from the accused himself in light of my finding that "Bob" did not exist, but focusing on the provision of that material by the accused even if "Bob" had existed, I am satisfied beyond reasonable doubt that the provision of that material to Complainant 1 satisfies the requisite elements of Count 67. Such exposure to indecent material, as evidenced within that letter, was given to Complainant 1 by the accused with the intention of making it easier to procure the child for unlawful sexual activity with himself. There will, therefore, be a verdict of guilty with respect to Count 67. COUNTS 6 AND 7 (COMPLAINANT 6) 1. I now move to a consideration of Counts 6 and 7 which relate to alleged offences committed against Complainant 6. As I have indicated earlier, Complainant 6 was indirectly related to the accused by marriage. She was the niece of the eldest of his three stepdaughters following his marriage to his second wife. It would appear that the accused was somewhat of a handyman and he had assisted his stepdaughter and her husband with renovations on their own home. In due course, he had carried out some renovation work at the home of Complainant 6's parents. Over a period of years there had been intermittent contact with that family and also on social occasions. In February 2013 the accused had agreed to rebuild the carport at their home in Sydney's western suburbs. He would arrive at that home on either Sunday afternoon or Monday morning and park his caravan out the front of the premises. He would work each day and then sleep in his caravan overnight. He would go home on weekends and drive back to his home. The rebuilding of the carport took about four to five weeks, or, if the wife's recollection is accurate, perhaps eight weeks during February and March 2013. The accused told Complainant 6's father (BL1) that sometimes he would visit his mother on his way home and that on other occasions he would pick up Complainant 1 and Complainant 4 and take them back to his house for the weekend. 2. The period during which the rebuilding took place coincided with the incident on the weekend of 16 February 2013 which had resulted in SD2 and her husband having the interaction regarding the retrieval of their children from their grandparents' home. This incident had also led to the accused calling the police due to his "concern" for the children when in the custody of their parents. The accused had recounted this incident to BL1. BL1 gave evidence that on the occasions that the caravan was parked outside their home during the week, each of his daughters, Complainant 6 and her younger sister, would often go out and spend time with the accused inside his caravan. BL1 expressed concern about the door being locked. No complaint was raised with BL1 by his daughter, Complainant 6, until he had some conversations with her at a time after they had become aware of the arrest of the accused in June 2015 and also of the detail and nature of some of the allegations being brought against him. 3. Following communications between Complainant 6 and her father, she was interviewed by police on 27 January 2016. Complainant 6 was born in 2001 and she was 14 years of age at the time she was interviewed. 4. She had written down some notes of what she recalled occurring with the accused as a consequence of her mother advising her to make notes in advance of the interview. She described the accused as having "always offered me beer" and having been told not to tell her parents. She described the accused giving her chocolates and ice cream and slipping her money in $10 and $20 notes. She described an occasion when his caravan had been up in Sydney at the time of her cousin's 21st birthday. Her father had given evidence that that birthday occurred in October 2014. Complainant 6 described a conversation with the accused where he had indicated that he would like to take a photo of her "for some modelling person." She described him taking a picture of her while she was in the caravan. She recounted the accused having obtained her mobile phone number and thereafter texting her, as she termed it, "a lot." She gave evidence of conversations in which the accused had told her that she would "be in a bra soon." She gave evidence of conversations which might retrospectively be viewed as a form of grooming. 5. She gave detail of a specific occasion when the accused had asked her for a photo of herself in a bikini. She described that the first time she had gone into the caravan was when she was 11 or 12. I note that this would coincide with the time during February and March 2013 when the caravan was outside her family home. Complainant 6 would have been, in fact, 11 years of age at that time. She described a game played in the caravan with herself and her younger sister, who was some three and a half years younger. She described her younger sister running across the caravan floor and jumping onto the accused and then she, Complainant 6, doing the same. She described him falling backwards with her landing effectively on top of the accused, who had been sitting on the bed. She thought the comment about being in a bra soon had occurred at about that time. 6. In the course of an extensive interview with police which occupied some 777 questions and answers, she provided a detailed description of how she would be caught by the accused when she jumped at him and where various hands and arms were in the course of falling backwards and rolling over. She described that her whole body was on top of him as he fell backwards after catching her. 7. She described two occasions on which she said photographs had been taken that she was "pretty sure" were of both herself and her sister. I should observe in passing that there is no suggestion that these photos depicted either child naked. She gave further detail of the repeated occasions on which she was given money. In due course she told police in the course of her interview that the accused had told her that the "modelling agency guy" wanted a picture of her in a bikini. She thought that the accused had told her she would get paid for it and that he asked her for a bikini photo. 8. She gave evidence about receiving many texts from him in which he described the friend of his being involved as a modelling agent and that the friend, in fact, owned a modelling agency. Complainant 6 was told by the accused in these messages that she could make a lot of money. In due course, she had endeavoured to retrieve the text messages from her phone to show to police. However, she had not been able to do so as she had changed both SIM cards and the phone by that stage. She said that she felt very uncomfortable about the request for a bikini photo. She had discussed it with a girlfriend at school and had not sent such a photo to the accused. She said that she had told her parents about the text messages and also the request for the bikini shot after she had been told about the arrest of the accused. 9. A photograph was retrieved, amongst others, from a memory card in the possession of the accused which depicted Complainant 6 wearing a black singlet top and shorts. She was shown this photograph and indicated that the photograph was taken on an occasion when the accused came in and took a photo of her in her bedroom. It was tendered and became Exhibit LLL. I note that the properties attached to the thumbnail image of that photograph indicate that it was taken on 16 October 2014 at approximately 3.22pm. The timing and date of that photograph coincides with the evidence from BL1 (her father) regarding the 21st birthday celebrations in October 2014. That thumbnail may also tend to suggest that as at that date at least, the time and date in the relevant camera must have been set accurately. 10. The request by the accused via an SMS message to Complainant 6 for her to send a photo of herself in a bikini was corroborated by evidence called from a school friend. The school friend of Complainant 6 had been shown the message while they were at school. She recalled the description of somebody who was someone's stepdad doing renovations at Complainant 6's home and she saw the message, which she said was along the lines of: "Hey (Complainant 6), just wondering if you could send some bikini photos, a friend of mine is, like, a model person." The school friend told Complainant 6 that she should tell her mother about the request and she observed her friend to delete the messages from the phone. The school friend maintained that one of the text messages she saw said: "Don't tell your mum." 11. Complainant 6's mother was also called to give evidence. She confirmed that the renovation and rebuilding of the carport area was in about February 2013. Her recollection was that the renovations went for a period of about two months until early April. She had not heard any suggestions of a complaint from her daughter Complainant 6, prior to finding out about the arrest of the accused in June 2015. 12. Following the allegations against him being made public, she then asked both of her daughters about their relationship with the accused. It was at that time that Complainant 6 made complaint about having received the numerous text messages on her mobile phone number after the accused had advised Complainant 6 that her parents had said that it was okay for her to provide her mobile number. I interpolate that they had, it would appear, given no such permission. 13. The accused, according to the complaint that Complainant 6 made to her mother, had asked to take a picture of her which was subsequently retrieved as a contact picture for use in his phone. She told her mother of the request to send a photo of herself in a bikini and about the messages about him having connections with a modelling agency. She also told her mother of the offer of beer on occasions when she had been in the caravan. 14. It is appropriate to note in passing that, elsewhere in the course of the trial, Complainant 1 and 4's father gave evidence of an occasion when he had the opportunity of looking through images on the accused's phone. On that occasion he said that he had seen an image of Complainant 2 in a bikini on the mobile phone of the accused. He had subsequently remonstrated with the accused regarding the inappropriateness of having such an image of one of his granddaughters. 15. With respect to the above evidence, I am satisfied that the accused took steps to cultivate a relationship with Complainant 6 in the circumstances she has outlined, particularly in consideration of other tendencies which I have found established in the course of the trial. Such conduct might well fall within a general understanding of the term "grooming" and, as I have indicated, may well fall within the broad concept of that description in other legislation, for example, the Commonwealth Criminal Code. COUNT 6 1. I am satisfied that a running and jumping game of the kind described by Complainant 6 did occur in the caravan. However, even accepting at full blush her description, teased out by police over very many questions, of a physical interaction and the juxtaposition of her body vis-á-vis the accused, I am not satisfied to the requisite standard that such activity amounts to an assault or to an act of indecency. Count 6 alleges an assault and an act of indecency derived from those circumstances. Accordingly, there will be a verdict of not guilty with respect to Count 6. COUNT 7 1. Count 7 alleges that between October and December 2014, the accused incited Complainant 6, then being a person under the age of 16, namely 13 years, to commit an act of indecency with him. The facts relied upon in support of that count are the request which he forwarded to her for her to take and send a picture of herself in a bikini to him. In considering the elements of this count and the factual circumstances relied upon, I am satisfied beyond reasonable doubt that the request for a photograph of Complainant 6 to be taken and sent to the accused was, in fact, a request which he made. In considering whether or not the taking of a photograph by a child of herself wearing a bikini and sending it to another person constitutes "an act of indecency." As Gleeson CJ (with whom Clarke JA and Sully J agreed) in R v Manson (NSWCCA, 17 February 1993, unreported) said: "An indecent act is one which right-minded persons would consider to be contrary to community standards of decency." 1. In determining the question of whether or not an act is capable of being construed as an act of indecency, surrounding circumstances including the sexual nature of any text messages, the intention and purpose of the accused, and the ages of the complainant and the accused are all relevant factors to be considered in determining whether a particular act is an act of indecency. The state of mind of the person charged with inciting can also obviously be relevant. As Basten JA said in Eades v DPP (NSW) [2010] NSWCCA 241; (2010) 77 NSWLR 173; (2010) 203 A Crim R 136 at [9]: "In the present case the applicant was properly charged with incitement, as the act of photographing and communicating the photograph was that of the victim, not of the applicant. However, the purpose of the inciter can be relevant, and may be critical, in characterising the act as indecent or otherwise. For example, an adult male who asks a girl to undress may not be involved in any act of indecency if he is a medical practitioner and she is a patient. On the other hand, even in that circumstance, it would be possible for him to incite an act of indecency if his real motive were not professional, but personal, involving sexual gratification." 1. In the present matter, the request for a photograph to be taken of Complainant 6 in a bikini and to be forwarded to the accused occurred in the latter months of 2014. The accused, at that time, was approximately 67 years of age and the child from whom he was seeking the photograph of her wearing a bikini, was but 13 years of age. His communications with her were deceptive in the sense that they were communications which commenced and were being undertaking without the knowledge or consent of her parents. She, in fact, had been asked to conceal the fact of the communication from her parents. Together with similar evidence elsewhere in the trial and finding beyond reasonable doubt, a tendency of the accused to act in a sexual way towards young persons, I am satisfied beyond reasonable doubt that the request was indeed an incitement to commit an act of indecency in the sense that that terminology should be understood. In this respect I have had regard to the discussion with respect to what constitutes incitement in the various judgments in R v Chonka [2000] NSWCCA 466. 2. However, a further element of the charge alleged in Count 7 is that it was an incitement to commit an act of indecency with the accused. The terms of section 61N(1) of the Crimes Act 1900 proscribe committing or inciting a person under the age of 16 to an act of indecency with or towards another person. In R v Page (unreported, NSWCCA, 25 November 1991), Campbell J, with whom Gleeson CJ and Mahoney JA agreed, said (at p. 4): "…the word "with", in a section which is not relevantly different to the one being considered here, involved the participation of two people and that for the act of indecency merely to be directed "against" or "toward" a non-participating person was not sufficient for it to be said that it was committed "with" him." 1. Similarly, in R v Orsos (1997) 95 A Crim R 457 at 460, Grove J, with whom Priestley JA agreed, said: "…there is a distinction between "with" and "towards". To commit an act of indecency "with" a person involves two participants whereas logically and grammatically one person may commit an act of indecency "towards" another. It is not necessary in this case to define the limits of activity which might be comprehended by the expressions as the question raised is only concerned with whether there is a distinction between them. The section therefore in my view establishes different offences and to charge them in a single count would render the count bad for duplicity." 1. I note that Hulme J in that case reached a contrary view. His Honour was of the view that section 61N(1) creates but one offence. However, the majority decision of Grove and Priestley JJ remains the law in New South Wales. 2. The situation, therefore, in my opinion is this. The directions of law which I must give to myself, as if I were a jury, regarding the distinction between an act being "towards" or "with" an offender requires a clear distinction. Despite the considerable latitude which was permitted earlier in the course of the deliberations which I interrupted to resume the court on 27 February for the Crown to make numerous amendments to the originally-presented indictment as a consequence of the variations and defects contained with it, both as to terminology and pleadings and as to dates, no amendment was sought to Count 7. 3. Consequently, and dealing with the count as pleaded, and despite my findings factually with respect to the actions of the accused being an incitement to commit an act of indecency, I cannot be satisfied that a request to send a photographic image to the accused constitutes an act "with" the accused. In accordance with numerous cases involving similar factual circumstances that would be an act "towards" the accused, I return a verdict of not guilty with respect to Count 7. Mr Crown, unless I have overlooked something I think that deals with all of the counts in the indictment. CROWN PROSECUTOR: Yes, your Honour, that seems to be all the counts on the indictment. HIS HONOUR: Where do we go from there? CROWN PROSECUTOR: Your Honour, the only other matter is a date for sentence. DISCUSSION AS TO SUITABLE DATES ADJOURNED TO FRIDAY 8 JUNE 2018 FOR SENTENCE ********** APPENDIX 1 – TABLE OF VERDICTS COUNT VERDICT Count 1 Guilty Count 2 Guilty Count 3 Guilty Count 4 Guilty Count 5 Guilty Count 6 Not Guilty Count 7 Not Guilty Count 8 Guilty Count 9 Not Guilty as charged; Guilty on statutory alternative under s. 66C(2) Count 10 Not Guilty as charged; Guilty on statutory alternative under s. 66C(2) Count 11 Not Guilty as charged; Guilty on statutory alternative under s. 66C(2) Count 12 Guilty Count 13 Guilty Count 14 Guilty under s. 61O(1) Count 15 Not Guilty Count 16 Guilty Count 17 Guilty Count 18 Guilty Count 19 Guilty Count 20 Guilty Count 21 Guilty Count 22 Guilty Count 23 Guilty Count 24 Guilty Count 25 Not Guilty Count 26 Guilty Count 27 Guilty Count 28 Guilty Count 29 Guilty Count 30 Guilty Count 31 Guilty Count 32 Guilty Count 33 Guilty Count 34 Guilty Count 35 Guilty Count 36 Guilty Count 37 Guilty Count 38 Guilty Count 39 Guilty Count 40 Guilty Count 41 Guilty Count 42 Guilty Count 43 Guilty Count 44 Guilty Count 45 Guilty Count 46 Guilty Count 47 Guilty Count 48 Guilty Count 49 Guilty Count 50 Guilty Count 51 Guilty Count 52 Guilty Count 53 Guilty Count 54 Guilty Count 55 Guilty Count 56 Guilty Count 57 Guilty Count 58 Guilty Count 59 Guilty Count 60 Guilty Count 61 Guilty Count 62 Guilty Count 63 Guilty Count 64 Guilty Count 65 Guilty Count 66 Guilty Count 67 Guilty Count 68 Guilty Count 69 Guilty Count 70 Guilty Count 71 Guilty Count 72 Guilty Count 73 Guilty Count 74 Guilty Count 75 Guilty Count 76 Guilty Count 77 Guilty Amendments 31 July 2018 - paragraph [26] - changed "Complainant 2" to "Complainant 4" 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: 31 July 2018