R v W [2002] ACTSC 36 (10 May 2002)

Last Updated: 14 May 2002

THE QUEEN v W [2002] ACTSC 36 (10 MAY 2002)

CATCHWORDS

CRIMINAL LAW - acts of indecency with young persons - s 92K Crimes Act 1900 (ACT).

CRIMINAL LAW - sexual intercourse with young person - s 92E Crimes Act 1900 (ACT).

CRIMINAL LAW - indecent assault - s 76 Crimes Act 1900 (ACT).

CRIMINAL LAW & PROCEDURE - trial by judge alone - warnings - delay - complaint evidence - separate consideration of offences - cross-admissibility of evidence in relation to different offences.

Jervis Bay Territory Acceptance Act 1915 (Cth), s 4

Crimes Act 1900 (ACT), s 76, s 9292

Crimes (Amendment) Ordinance (No. 5) 1985 (ACT)

Evidence Act 1995 (Cth), s 60, s 66, s 136, s 165

W v The Queen [2001] FCA 1648

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369

KRM v R [2001] HCA 11

Eade v The King [1924] HCA 9; (1924) 34 CLR 154

Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

Adam v The Queen [2001] HCA 57; (2001) 75 ALJR 1537

R v Schlaeffer (1984) 37 SASR 207

Dogget v R [2001] HCA 46; (2001) 182 ALR 1

No. SCC 117 of 2000

Judge: Gray J

Supreme Court of the ACT

Date: 10 May 2002

IN THE SUPREME COURT OF THE )

) No. SCC 117 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

W

ORDER

Judge: Gray J

Date: 10 May 2002

Place: Jervis Bay

THE COURT FINDS THAT the accused is guilty of counts 1, 2, 3, 4, 5, 6, 11, 12 and 13 in the indictment and that he be convicted of these offences.

THE COURT FURTHER FINDS THAT the accused is acquitted of count 7.

THE COURT FURTHER FINDS THAT the accused is not guilty of counts 8, 9 and 10 and that he be acquitted of these offences.

THE COURT ORDERS THAT nothing be published in this matter concerning the complainants' names and any evidence which might identify them.

Non-publication order

1. On 22 April 2002 I made a non-publication order in this matter concerning the complainants' names and any evidence which might identify them. In order to maintain the integrity of that order, I have not referred in these reasons to the names of the complainants or the witnesses who gave evidence whose identities might identify the complainants. I attach appendices referred to in the reasons which I order not be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.

The Charges (see Appendix I)

2. The accused was arraigned before me on 13 counts. The indictment charged:

"1. ... THAT [the accused] between 1 January 1988 and 31 December 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the first complainant] who was then above the age of 10 years but under the age of 16 years.

2. AND FURTHER THAT [the accused] between 1 January 1988 and 31 December 1989 in the Jervis Bay Territory committed an act of indecency in the presence of another person namely [the first complainant] who was then above the age of 10 years but under the age of 16 years, namely 11 years.

3. AND FURTHER THAT [the accused] between 1 May 1988 and 30 June 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.

4. AND FURTHER THAT [the accused] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.

5. AND FURTHER THAT [the accused] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.

6. AND FURTHER THAT [the accused] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.

7. AND FURTHER THAT [the accused] between 1 January 1978 and 31 December 1978 in the Jervis Bay Territory assaulted a female, namely [name suppressed], who was then under the age of sixteen years, and at the time of such an assault committed an act of indecency in her presence.

8. AND FURTHER THAT [the accused] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.

9. AND FURTHER THAT [the accused] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.

10. AND FURTHER THAT [the accused] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.

11. AND FURTHER THAT [the accused] between 1 December 1988 and 31 December 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person, namely [the fourth complainant], who was then under the age of 10 years.

12. AND FURTHER THAT [the accused] between 1 March 1984 and 30 April 1984 in the Jervis Bay Territory assaulted a female, namely [the fifth complainant] who was then under the age of 16 years and at the time of such assault committed an act of indecency upon her.

13. AND FURTHER THAT [the accused] between 1 January 1984 and 31 December 1984 in the Jervis Bay Territory assaulted a female, namely [the sixth complainant] who was then under the age of 16 years and at the time of such assault committed an act of indecency upon her."

3. The accused pleaded not guilty to each count. A copy of the indictment containing the names of the persons is attached as an appendix.

The first trial

4. The accused had previously been tried and convicted of four of these charges (counts 2, 4, 6 and 12. The jury had been unable to agree on the charge that is now presented as count 5. The other counts presented are those counts which were severed from the indictment that had been presented on his first trial.

5. The accused appealed the charges on which he had been convicted and that appeal was successful (see W v The Queen [2001] FCA 1648, 23 November 2001). That first trial miscarried because it had proceeded before a jury after what the Federal Court held to be was a valid election for judge alone.

Trial by Judge alone

6. The accused has again elected to be tried by judge alone on the indictment presented containing the counts that the Federal Court has ordered be retried and the additional counts that I have described above.

General Principles

7. I proceed in this matter in accordance with the terms of s 68C of the Supreme Court Act 1933 (ACT),

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

General directions

8. Sitting as judge alone, I must include in my judgment the principles of law that I apply. Accordingly, I have directed myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. This direction is particularly important in this case as it is a retrial and I must only concern myself with the admissible evidence put before me.

Burden of Proof

9. I have reminded myself that the burden of proving the charges lies wholly on the Prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the Prosecution that has to disprove it or show that it is irrelevant, otherwise the Prosecution will not have proved its case.

Presumption of Innocence

10. I keep steadily in mind that the accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes his guilt. I have regard, of course, to the standard of proof that lies upon the Prosecution and that the Prosecution must prove each and every element of the offence beyond reasonable doubt. Where I make a finding of a particular fact, or speak of being satisfied of any matter, I have reached that finding having been satisfied beyond reasonable doubt.

11. I may only find the accused guilty if I am satisfied that the Prosecution has proved each and every element of the charges beyond reasonable doubt. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of these charges, or I am unsure where the truth lies then, in those circumstances, I must find that the charges have not been proved to the level of satisfaction required by the law and must acquit.

12. Because of the nature of the charges and the evidence given in respect of them, I give consideration to and take into account the applicable law and certain principles and warnings relevant to the particular charges.

The applicable law

13. The acts which are said to constitute the offences all took place in the Jervis Bay Territory. Section 4 of the Jervis Bay Territory Acceptance Act 1915 (Cth) applied all law ordinances and regulations which were from time to time in force in the Territory for the Seat of Government (the Australian Capital Territory) so far as applicable. With the accession of self government by the Australian Capital Territory on 11 May 1989, s 4 of the Jervis Bay Territory Acceptance Act 1915 was amended by s 4A of that Act and applied the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory to the Jervis Bay Territory. By s 4D, the Supreme Court of the Australian Capital Territory was given jurisdiction in relation to the Jervis Bay Territory.

14. At the time of the offences alleged in counts 1, 2, 3 and 4, s 92K(2) of the Crimes Act provided:

"92K Acts of indecency with young persons

...

(2) A person who commits an act of indecency upon, or in the presence of, another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 10 years."

Section 92K replaced s 76 of the Crimes Act 1900 (ACT) which was repealed by the Crimes (Amendment) Ordinance (No. 5) 1985 (ACT) which commenced on 28 November 1985. At the time of the offences alleged in counts 7, 8, 9, 10, 12 and 13, s 76 of the Crimes Act provided:

"76. Indecent assault

A person who assaults a female and at the time of, or immediately before or after, the assault commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to imprisonment for five years."

At the time of the offences alleged in counts 5 and 6, s 92E(2) of the Crimes Act 1900 provided:

"A person who engages in sexual intercourse with another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years."

At the time of the offence alleged in count 11, s 92E(1) of the Crimes Act 1900 provided:

"A person who engaged in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years."

The elements of the offences

15. The elements of an offence under s 92E(1) of the Crimes Act 1900, being the relevant section with respect to count 11, are that:

(a) the accused had sexual intercourse with another person; and

(b) the other person was under the age of 10 years.

The definition of sexual intercourse under s 92 includes the penetration of the vagina or anus of a person by any part of the body of another person, or by an object manipulated by another person.

16. The elements of an offence under s 92E(2) of the Crimes Act 1900, being the relevant section with respect to counts 5 and 6 on the indictment are that:

(a) the accused had sexual intercourse with another person; and

(b) the other person was of or above the age of 10 years but under the age of 16 years.

Consent may be raised as a defence for an offence under s 92E(2), however no such defence has been raised in this case.

17. The elements of an offence under s 76 of the Crimes Act 1900, being the relevant section with respect to counts 7, 8, 9, 10, 12 and 13, are:

(a) an assault by the accused on the prosecutrix;

(b) with or without her consent except in the special circumstances provided by s 77;

(c) accompanied by an act of indecency before, after or at the time of such assault.

Section 77 provides that consent may be raised as a defence to an offence under s 76 in special circumstances, however no such defence has been raised in this case.

18. The elements of an offence under s 92K(2), which is the relevant section with respect of counts 1, 2, 3 and 4 are:

(a) the accused commits an act of indecency;

(b) upon or in the presence of another person;

(c) the other person is of or above the age of 10 years and below the age of 16 years.

19. "Indecent" bears its ordinary meaning and need not be further explained to a jury except to say that it has "a sexual overtone" (Nuzif (1987) 2 NZLR 122 at 127). "Upon or in the presence of" requires a complainant to be aware of the act of indecency whether the offence involves touching or mere exposure. An act of indecency is separate from conduct constituting an indecent assault, that is, there is no requirement for an assault to accompany the act of indecency. Consent may be raised as a defence to an offence under s 92K(2), but no such defence has been raised in this case.

Warnings

20. Because of the time that has elapsed since the events deposed to by the complainants, I am asked to give myself a warning in terms of that considered necessary by the High Court in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The evidence of the complainants in the present case was given of incidents that occurred over 12 years ago and in the case of two complainants, over 18 years ago. The warning is specially directed to the factor that as the evidence of the complainants could not be adequately tested after this extensive passage of time, it would be dangerous to convict on that evidence alone unless, having scrutinised the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, I am satisfied of its truth and accuracy. I trust that it is apparent from my consideration of the evidence of each of the complainants that I have heeded this warning.

21. I must also bear in mind that there are other factors which require warnings to myself of the potential for error in a complainant's testimony in sexual cases. That is where the testimony is uncorroborated, the age of the complainant at the time of the offences, those cases in which no complaint was made at the time, the lack of specificity of the date or dates when the incident or incidents allegedly took place (see Longman v The Queen (supra per McHugh J at 108-109 and the comments in Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369 at 379 [42]).

Separate consideration

22. Subject to any issue of cross-admissibility, I must give separate consideration to each of the offences charged. It would be quite wrong to say that because I find the accused guilty or not guilty on one count, he must be guilty or not guilty, as the case may be, of another. I consider each count separately in light of the evidence that applies to it (KRM v R [2001] HCA 11 per McHugh J at [36]).

Cross-admissibility

23. I deal with the issue of cross-admissibility in relation to the charges in respect of which the question is raised, but generally I have not regarded the evidence of any one of the offences as being admissible with regard to other offences.

Complaint

24. The absence of complaint is a matter that arises in respect of the warnings of which I take account. In addition, where there is evidence of complaint that complaint at common law is not capable of corroborating the evidence of the complainant (Eade v The King [1924] HCA 9; (1924) 34 CLR 154) rather, it may demonstrate the consistency of the conduct of the complainant with the complainant's evidence (Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 466). The position under the Evidence Act 1995 (Cth), however, may permit evidence to be given of any representations made by the complainant if the conditions of s 66(2) of the Evidence Act are met and the use of the evidence of such representations is not limited by s 136 of the Evidence Act (Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297).

25. It is with these directions in mind that I turn to consider the evidence and submissions made.

The accused's relationship with the complainants

26. The relationship between the accused and the complainants is relevant because of the possibility of concoction and generally in my consideration of the matters the subject of the counts. I set out the position of the accused and those relationships in a separate appendix, which is not to be published. At the relevant times the complainants were employed in or helped out at a shop which the accused ran.

The circumstances of the alleged offences

27. The incident which is the subject of count 1 on the indictment relates to the first complainant and is alleged to have taken place in the house of the accused. The first complainant was nine or 10 years old at the time and had been staying at the accused's house. The incident occurred in the kitchen, leading to the laundry of the house. The accused was standing in the doorway as the first complainant attempted to walk past. He was wearing tight "stubby shorts" and grabbed the first complainant's hand, put it on the front of his shorts over his penis and asked her if she wanted it. The first complainant ran out the back door.

28. The second incident involving the first complainant, the subject of count 2, occurred when the complainant was eleven years of age. The first complainant was working in the accused's shop. At closing time, the first complainant shut the front door of the shop and took the money from the till to the back of the shop for the accused to count. She then walked to the front of the shop to do some cleaning. After finishing the cleaning, the first complainant again walked to the back of the shop where the accused had set up a projector showing a movie of women having sexual intercourse with dogs and horses. The accused approached the first complainant with his shorts around his knees. He then said something to her, however she could not recall what was said. The first complainant threw a can of drink at the accused and ran out of the shop.

29. Count 3 relates to the second complainant and is alleged to have occurred in the May/June school holidays of 1989, when she was working in the accused's shop. There was a film projector located at the back of the shop on a table. The accused asked the second complainant if she had seen some videos and turned on the film projector, which showed an "old-style" film of people having sex with animals. The second complainant became scared and attempted to walk out of the shop. The accused blocked her path to the front of the shop. The accused then grabbed the second complainant's right hand and placed it on his penis. He asked her "Do you like that?" and she replied "No". The accused then asked the second complainant "Would you like to earn a little extra money?" She replied, "No, I've got to go, my Mum's waiting." and left the shop.

30. The second incident in relation to the second complainant, which is the subject of count 4, is alleged to have occurred two to three weeks after the first incident. She was working in the accused's shop and was at the back of the shop with the accused. The accused handed her some money for working that week plus some money for the second complainant's birthday. He then asked the second complainant, "Would you like to earn a little extra money?". The second complainant replied, "How, what?" and as she took the money from the accused he grabbed her on the crotch of her jeans. At this time the accused's sister walked into the back of the shop and the accused pulled away, alarmed. The accused's sister looked surprised, gave the second complainant "a filthy look" and walked out. The second complainant walked out behind the accused's sister.

31. The third incident involving the second complainant, which is the subject of counts 5 and 6, is also alleged to have occurred two or three weeks following the first incident. The second complainant was working in the shop on a weekend. The shop closed (as it generally did) for some time during lunchtime. In the afternoon the second complainant went to the accused's house to inquire whether the shop would be opened again that afternoon. She knocked at the accused's front door and the accused opened the door. The second complainant entered the house and saw that the accused had been watching a video in the lounge room. The accused then turned the television off and wheeled it into his bedroom. He asked the second complainant "Have you seen these?" and the second complainant walked to the bedroom and knelt down in front of the television. She saw that another pornographic film was playing. She started to get up and the accused placed his hand on her shoulder and forced her to sit down. The accused then asked her "Do you want a bit of this?" and when the second complainant turned to look at him she saw that the accused was pulling his penis. The second complainant said "No" and then felt the accused insert his finger into her vagina. The second complainant told the accused, "That hurt". The accused said, "This won't." and inserted his finger in the second complainant's anus. The second complainant realised that she was bleeding and left the room. She walked through the kitchen, into the bathroom and then out the back of the house onto a track leading to the beach. She did not want her mother to see her so she lay down in the grass on the beach and took off and buried her underwear. After she had buried her underwear and was lying in the grass, a male cousin heard her crying and approached her. Her cousin picked her up and carried her to her mother. The second complainant did not immediately tell her mother what had occurred, and after having had a bath, told her mother what had happened only "in bits and pieces".

32. The prosecution did not call any evidence in relation to count 7 and the accused is acquitted of this count.

33. The first incident in relation to the third complainant, which is the subject of count 8, occurred when she was 10 years of age. She attended the shop owned by the accused and walked in to find no one in the front area of the shop. She walked to the back of the shop and saw the accused sitting down at a desk. The accused stood up, came towards her and lifted her above his shoulders. He then slid her down onto his penis and was holding the third complainant so tightly that she could not get away. The accused then carried the third complainant towards the side door and put her down.

34. The second incident in relation to the third complainant, the subject of count 9, also took place in the accused's shop, approximately one or two months after the first incident. Again, as the third complainant entered the shop there did not appear to be anyone in the shop. She called out, "Is anyone there?" and the accused replied, "Around the back". When the third complainant walked around the back, the accused lifted her over his shoulders and slid her down onto his penis. The third complainant tried to get away but she was being held tightly by the accused. Once again, the accused carried her to the side door and let her go.

35. The third incident, which is the subject of count 10, occurred one or two months after the second incident involving the third complainant and followed a similar pattern to the first and second incidents. During the intervening one or two month period the third complainant had not entered the shop as she was scared of what might happen. On the day of the third incident the third complainant entered the shop to buy an ice-cream. She called out "Is anyone there?" and the accused approached her and lifted her up over his shoulders and slid her onto his penis. He held onto her tightly and released her at the side door.

36. The eleventh count relates to the fourth complainant and is alleged to have occurred when she was eight or nine years of age, during the Christmas school holidays. The fourth complainant was working in the front of the accused's shop and no one else was in the store apart from the accused. The fourth complainant asked the accused why she wasn't permitted to use the till. The accused replied, "Because you don't have feathers on". The accused then asked the fourth complainant to go to the back of the shop. At this time the fourth complainant became scared. She started to back away from the accused and ended up against a wall. She said "No" and the accused pulled her pants and underpants down. The fourth complainant then felt the accused put his hand in her vagina. She felt a sharp pain in her vagina. She repeatedly said "No". The fourth complainant then heard a noise in the front of the shop and the accused walked around to the front of the shop to investigate the noise. The fourth complainant pulled her pants up, unlocked the door and ran out of the shop. Upon leaving the shop, the fourth complainant's evidence was that she saw the first complainant and the accused's sister in the park and told them what had happened. They then took her to her house and told the fourth complainant's mother about the incident.

37. Count 12 is alleged to have taken place in 1984 when the fifth complainant was working in the shop owned by the accused. In the late afternoon, as the fifth complainant was cooking a hamburger, the accused came to the cooking area and started to rub the fifth complainant's shoulders. He then slid his hand over the outside of her top down her pants into her bikini bottom over her vagina. At the time, the fifth complainant had her first period and was wearing a tampon. She felt the accused's hand on the tampon string and she pulled away. The accused followed her to the front door and asked her to watch some X-rated movies with him.

38. Count 13 relates to 1984 when the sixth complainant was working in the accused's shop. In the afternoon around closing time the accused asked the sixth complainant to clean the shop. As the sixth complainant was mopping, the accused came up behind her. He put both his hands on her shoulders and started to massage her shoulders. The accused and the sixth complainant were both outside the cooking area of the shop at this time. The accused asked the sixth complainant to go out to the back of the shop. The sixth complainant became scared and did not reply. The accused then sat down on a bench, pulled his penis out of his shorts and started stroking his penis with his hand. He grabbed the sixth complainant's hands, placed them on his penis and put his hands over the top of her hands and started stroking. He asked the sixth complainant if she liked it. The sixth complainant replied that she did not and walked out of the shop.

39. I turn to consider the other evidence called relevant to a particular complainant's evidence and the evidence called and submissions made by the accused. At the outset it must be borne in mind that the accused denied on oath that each of the incidents, the subject of the counts, ever occurred or that there was any occasion which might concern any of those events.

The first complainant - counts 1 and 2

40. In the case of the incidents deposed to by the first complainant, there is no independent evidence which implicates the accused in the alleged offences. Nor did she formally complain about the incidents until 1999. She said the incidents occurred when she was about 10, putting them as occurring in 1988 or 1989. Clearly that is a substantial delay. She did say that in respect of the second incident she ran out of the shop and that she saw a female friend of hers and told her what had happened. She did not give evidence of any details of what she may have told her. Her female friend was called by the defence and the incident as deposed to by the first complainant was put to her and she said that she did not recall being told of such an incident. The first complainant's reason generally for not complaining was that she did not want anyone to know what was happening to her. She agreed that when the fourth complainant said something to her about the accused touching her (the fourth complainant) she did not tell her about herself as "it brought back too many bad memories for myself". She did say that she had from time to time warned her younger cousins not to stay in the shop with the accused when the shop doors were closed. It appears that she was motivated to formally complain after speaking with one of her cousins (not one of the six complainants who gave evidence before me).

41. The first complainant said that she worked in the accused's shop after these incidents and that she did so to help her mother out with money. The accused in his evidence produced documents that he kept in respect of the cash transactions of the business. These documents cover the period 1 April 1985 to 30 June 1992. They are in the form of foolscap "day books". They cannot purport to be exhaustive of the affairs of the business, nor can they be reconciled. The accused also said that the books showed those who "helped" at the shop, but were not actually paid, or were paid by way of soft drinks or ice-creams. He said those notes were made to check shortfalls against who might have been in the shop.

42. As I have said, those books were not the full records of the business but they do not indicate that the first complainant "worked" at the shop at the time alleged. The books, however, do show that she worked on occasions in 1991, 1992 and 1993. I am not satisfied that the records are so reliable as to enable me to doubt that the first complainant was not at the shop on the occasions when she said these incidents occurred.

43. The first complainant's evidence about the showing of a pornographic movie on a reel-to-reel projector was challenged in cross-examination on the basis of it being well known in the community that the accused used to show "naughty films to men - or some people in the community". She denied this. She agreed that everyone knew that the accused had a projector and that he used to show the community films. In his evidence, the accused said that in fact he had four reel-to-reel projectors and that none of them worked, nor were any set up in the back of the shop. He also said that there was only one occasion where he had shown films to the community on such a projector and that he had borrowed it on that occasion. I consider that the accused's evidence in respect of these matters to be calculated and opportunistic. Nothing that the accused says about these matters causes me to doubt the account of the incidents that the first complainant gives.

44. I agree that the delay places the accused at significant forensic disadvantage in testing the first complainant's evidence and that aspect and the other matters to which I have referred require me to scrutinise the first complainant's evidence with great care and pay attention to those factors which might effect its truth and reliability. Carefully considering these matters, I am satisfied beyond reasonable doubt that each of the incidents as to which the first complainant deposed, took place.

45. I add that I am also satisfied that her evidence has not been influenced by the other complainants in any sense that it could be said that it was a concoction so as to affect its probative value.

The second complainant - counts 3, 4, 5 and 6

46. The second complainant gave evidence of three incidents in 1989. It was put that her evidence should be doubted as to the incident that is the subject of count 4. It was said that she was led in her evidence in respect of an incident at the shop in the May/June 1989 school holidays, that she said that the incident the subject of counts 5 and 6 took place two or three weeks later (although she had said that she did not continue to work in the shop for about three or four weeks later after the first incident. The incident the subject of counts 5 and 6, allegedly took place at the accused's home after the second complainant had found the shop closed. She was then led as to a second incident in the shop as having taken place two or three weeks after the first incident. Whatever confusion there may have been as to these (and I do not think that there is) it was not the subject of cross-examination. I am satisfied that the second complainant was giving evidence of three separate incidents.

47. The first incident bears some similarity to the circumstances alleged by the first complainant and which is the subject of count 2. In so far as it supports the evidence of the second complainant as to the accused having a working reel-to-reel projector and showing films of a pornographic nature, I take it into account. In so far as it might be suggested that the evidence goes to show any propensity for similar conduct on the part of the accused, I reject that suggestion. I do not regard the evidence of the first complainant as admissible or relevant for that purpose. As with the first complainant, she was extensively cross-examined about her knowledge of the reel-to-reel projector, its use at community events to show films and the accused's possession of pornographic films. She remembered only one occasion of it being used for a community event but asserted to her and others knowing of the projector and the possession of pornographic films. The accused accepted, in his evidence, this one occasion and sought to explain the possession of the non-working projectors. He denied having pornographic films or videos. His evidence does not cause me to doubt the second complainant's evidence in that regard.

48. She gave evidence of a second incident also at the shop. On that occasion she says that the accused's sister walked in "looked quite surprised, and she'd given me a bit of a filthy look, said what she had to say, and walked out". The accused's sister was called by the defence and she gave evidence that she did not remember any such occasion of finding the accused and the second complainant at the back of the shop or seeing the accused and the second complainant pulling away alarmed or surprised. Her response was "No sir. Never.". The length of time since this alleged incident occurred together with the evidence of a person who could potentially corroborate it, means that I should be very careful in my assessment of the second complainant's evidence of this incident.

49. As to the third incident, the cousin who the second complainant said had picked her up and carried her home after the incident was called. His evidence, if accepted, is capable of being corroborative of her account as to this incident. He was located after the first trial by the accused's niece at the instigation of the accused's wife. As a result of speaking to those persons and the accused's sister, he wrote out a statement in regard to the statement made to the police by the second complainant:

"... to an event that supposedly took place in either 1987, 1988, 1989 that I picked her up of [sic] the track from Summercloud beach while she was bleeding this is not true and I am willing to go to court and say this".

Subsequently, he swore an affidavit to this effect to be used in relation to the accused's appeal in respect of his first trial. The relevant part of the second complainant's statement is recited in the affidavit and it refers only to "the grass area on the beach hill" as the location.

50. His evidence in this trail was to the effect:

"Now can you tell his Honour please, about an incident relating to [the second complainant]? - - - Well, I was walking up from the beach, coming from surfing, and I found a little girl sitting on the grass there on top of the beach crying, and I asked her what was wrong but she never told me, she wouldn't tell me. So I asked her, I said "Do you want me to take you up to mum, baby?" and I carried her up to her mum and handed her over to her mum. She never said anything, that was it."

He said the "mum" was the second complainant's mother. He also said that he noticed a little drip of blood on the top of her foot.

51. His evidence was also that he had been a long term drug addict and that drugs had effected his memory, that it was only when he started drug rehabilitation and methadone that he began to remember. When seen by the police on 3 April this year, he was able to recall that which he gave evidence of at this trial.

52. His evidence was strongly contested in cross-examination by Mr Tilmouth QC, counsel for the accused. Mr Tilmouth was particularly critical of the evidence that he had taken heroin on the day that he was taken from Sydney to Canberra by the accused's wife, sister and niece to the accused's solicitor to swear the affidavit. Indeed it was said by the accused's niece that he went to a methadone clinic before making the journey although that assertion was not put in cross-examination.

53. The cousin's evidence that he was "stoned" when he journeyed to Canberra does not necessarily mean that he appeared so. In fact, his evidence as to his appearance was to the contrary. What I am not able to draw from his evidence is that what he said in his prior inconsistent written statement and affidavit was true even though s 60 of the Evidence Act 1995 would permit me to admit them as evidence of the truth of their contents (see Adam v The Queen [2001] HCA 57; (2001) 75 ALJR 1537 at [18]). Mr Tilmouth strongly urged that I do so, but I have had careful regard to the evidence given before me and I do not accept the truth of the contents of the written statement and affidavit.

54. Further, whilst the making of the inconsistent statements makes me very reserved in accepting the evidence given before me, I cannot, and do not, discount it entirely. Rather, I remind myself of its unreliability because of the witness' drug history and his inconsistent statements. I have regard to s 165 of the Evidence Act and I accept the need for caution in determining whether to accept the evidence and the weight to be given it. I do not consider that I can rely on his evidence as corroboration of the second complainant's complaint. On the other hand, I do not consider that his first statement is evidence of the incident with him as not having happened so as to cause me to doubt the complainant's account.

55. The second complainant made no complaint immediately after this incident on the expressed ground that no-one would believe her. She did, however, visit a doctor, Dr Plaude, she says in relation to the bleeding from the anus. She did not tell the doctor of the incident. The doctor referred her to a specialist, Dr Hanan, who gave evidence before me. The reference to Dr Hanan related to blood in the second complainant's motions. He saw the second complainant in August 1988 in respect of this. Both the second complainant and her mother referred to a comment made by Dr Hanan as to whether the second complainant was sexually active.

56. It was said by Mr Tilmouth that the failure to complain to the doctor is significant and, indeed, that the date that the doctor saw her is significant in light of the evidence led from the second complainant as to the state of the offence. I do not agree. The date of the offence does not bear the significance that Mr Tilmouth would attach to it. The incidents could have taken place earlier than what was led from the witness. Further, the reaction of the second complainant's mother would indicate every good reason for nothing further being said by the second complainant to her mother or the doctor.

57. However, the second complainant did tell her mother a little over time and that is confirmed by her mother. Her mother gave evidence of an occasion when the second complainant was fighting with her sister when the second complainant said she did not want to go back to the accused's shop having left her wallet there because the accused "had done something to her".

58. The reaction of her mother to this and her mother's actions were relied upon to indicate that the reason given by the second complainant not complaining because she would not be believed, were just not right. However, that was not her evidence:

"Well, can you just answer my question please? Did you tell anybody about this first incident? You've already said you didn't tell your mother, as I understand because you say she wouldn't believe you, is that right? - - - No, it's not that she wouldn't believe me, I didn't know how to tell her. And what I did tell her was only ever in bits and pieces after the first incident where [my cousin] took me home."

59. One other issue related to the making of the formal complaint. The second complainant, in cross-examination, alleged that she was encouraged to do so by the accused's daughter who had said, whilst intoxicated, that certain incidents had happened to her. The accused's daughter gave evidence that she said no such thing. Her evidence, however, was curious in its ready admission of the occasion and that she was "pretty intoxicated" that day although denying other aspects of what the second complainant had said. She also alleged that both were intoxicated and smoking pot. I do not consider that the matters that I am considering are materially affected by this issue.

60. It is, of course, the fact that no formal complaint was made until 2 June 2000 and the forensic disadvantage by reason of the late complaint is considerable. I have referred to the matters bearing upon the second complainant's evidence. I have referred to the factors affecting its truth and reliability.

61. After very careful scrutiny of all of the evidence relating to each of the counts in respect of which the second complainant gave evidence, and considering each separately, I do not entertain a reasonable doubt as to the truthfulness of the second complainant's evidence with regard to them.

62. I am satisfied that her evidence has not been influenced by the other complainants.

The third complainant - counts 8, 9 and 10

63. The incidents of which the third complainant gave evidence are said to have taken place in 1983 or 1984. I am conscious of the considerable length of time since these alleged offences and of their being no corroborative evidence in respect of them. The offences are said to have occurred when the third complainant was 10, almost 20 years ago, and were not the subject of a complaint until 1999.

64. The third complainant clearly found it a painful experience in giving her evidence. She explained that she was scared of what her father's reaction might be. She thought, until she made her complaint, that it was all her fault. These matters go some of the way towards explaining the delay in making any complaint. However, given the way that she gave her evidence and the length of time since these offences, it materially forensically disadvantages the accused. She was not able to recollect why she says that she was 10 years old at the time. She was not able to remember other matters which were put to her.

65. It is not that I do not believe her, but I cannot be sure that the incidents occurred with the particularity that would necessarily amount to the offences charged. I give the accused the benefit of this doubt.

The fourth complainant - count 11

66. This complaint relates to an incident that is alleged to have taken place in 1998 or 1999 in respect of a complainant who was eight or nine years of age. Mr Tilmouth said that the fourth complainant's evidence as to what had happened created a doubt as to whether the incident that she described amounted to penetration of the complainant's vagina. Her evidence was:

"And then he told me to take my pants off. And I said "No". And then he just pulled my pants and underpants down and then he put his hand in my vagina and I felt a sharp pain."

Mr Tilmouth's submission was that it was just an impossibility for a hand to be in the vagina of an eight or nine year old girl. That submission does not negate the force of the unchallenged evidence and its irresistible implication that the vagina was penetrated. I do not accept his submission.

67. As to this incident, there was evidence given of the complainant's distress and an immediate complaint. That evidence was given by the fourth complainant. She said that she told the first complainant and the second complainant's mother "in the park" immediately after the incident and that they were in her room "explaining it to mum what happened". The second complainant's mother gave very clear evidence of the distress that she observed. She said:

"Could you please tell is Honour what you saw and what was said in the bedroom? Firstly, what did you see? - - - [The fourth complainant] and [the first complainant] were sitting next to each other on the bed and [the first complainant] still had her arm around [the fourth complainant] and [the fourth complainant] was obviously still upset. She was still crying. And I sat down a little bit away from them on the same bed and [the first complainant] just turned to [the fourth complainant] and said "Tell mum what happened". And then [the fourth complainant] just started getting upset again and I said "Well just tell me what happened". And she said "I'm scared". And then she said that [the accused] had cornered her in the shop and asked her to pull her pants down, and that he'd offered her money.

And what did you do? - - Well, she was obviously still - she was just really, really upset. She was just tears streaming down her face.

And did you say anything else to her? - - - And I said "Well, did he touch you? Did he hurt you?". And she just started crying and I just said to her "Well you have to tell your mum what happened".

And did she reply to that at all? - - - I don't think she was in a state to reply. I just took it upon myself to get her mum.

Right. Now did you go and get her mum? - - - Yes, I did."

She said that the fourth complainant told her mother the same thing. The mothers discussed the matter and in the result, determined not to do anything about it. The evidence of the second complainant's mother was supported by the fourth complainant's mother.

68. I am satisfied that the fourth complainant was genuinely distressed as a result of the incident that she deposed to as happening in the shop. I regard her distress as corroborative of an incident of a sexual nature involving the accused. It is not to the point that when asked "Did he touch you? Did he hurt you?" by the second complainant's mother that the second complainant's mother took her to be shaking her head as if to say no. the second complainant's mother in her evidence now thinks that she may even have been indicating "Yes". The corroborative aspect is not of penetration but of the accused's involvement in an incident of this nature (cf Dogget v R [2001] HCA 46; (2001) 182 ALR 1 at 14 [68] per McHugh J). I regard the fourth respondent's distressed condition, as a matter of reason and common sense as only caused by a sexual incident of the kind alleged and could not have been simulated, imagined or influenced by other events which might reasonably have occurred other than the alleged sexual act (cf R v Schlaeffer (1984) 37 SASR 207 at 217 per King CJ).

69. That is not to say that I should not very carefully scrutinise her evidence because of the lapse of time, the forensic disadvantage to the accused and her age at the time of this offence.

70. Two other matters were put by Mr Tilmouth as affecting my assessment of this incident. The fourth complainant said in her evidence that she went back to the shop only if accompanied and never worked in it again. The first matter is a picture in the local newspaper of the fourth complainant sitting happily in the shop on an occasion after this incident. Apart from the fact that it might be doubtful if it is a photograph of her (her mother could not identify her) it is not inconsistent with her assertion. The other relies upon some notes from the accused's day book that shows her "helping" in the shop on three occasions in 1988 and one later occasion in 1992 (on each occasion with other people). I do not consider that these entries cast doubt on her evidence.

71. I accept the evidence of the fourth complainant that she did not make a formal complaint because she felt it was her fault and did not want to remember it. She gave a formal statement on 15 November 1999 and found out about other statements after she had given hers. I am satisfied that her evidence is free from any taint of concoction.

72. I am satisfied beyond reasonable doubt that the accused committed the acts alleged as constituting the eleventh count.

The fifth complainant - count 12

73. The incident deposed to by the fifth complainant was alleged to have taken place in 1984. At the time the complainant was aged 13 and she relates the time to when she first got her period. She gave her evidence in a convincing and straight forward way. She made no complaint for at least 12 years because as she said "I was scared. Just didn't think anyone would believe me. I felt dirty.". She said that in 1996 she rang Operation Paradox and told them everything, but nothing came of it.

74. When she formally complained, she did so with her sister, the sixth complainant, but I am satisfied that neither discussed the matters that they were reporting and there is no reason to suggest that there has been any concoction or fabrication of their evidence. Nevertheless, the delay in making any complaint means I must carefully scrutinise her evidence, although her age at the time does not tell as heavily in that regard as in other cases.

75. Mr Tilmouth criticised her evidence that at the time of the incident there was a customer for whom she was apparently cooking a hamburger and the unlikelihood of the incident occurring and her failure to recognise or describe the customer. Her evidence was that the customer was outside of the shop and that she did not look back when she left the shop to get away from the accused. Her evidence was also that she "just wanted to get out of there".

76. It was also put that, despite her evidence, after this incident she did not return to work there again. The issue arose in cross-examination this way:

"Did you go back to the shop later on to work again or to - - - ? - - - I've been to the shop but I haven't worked there again after that.

You didn't work there again at all? - - - No.

And why, you say that's because of what happened to you - - - ? - - - Yes.

- - - by [the accused]? - - - Yes.

And do we understand your evidence correctly to be that you wouldn't go back there to work for that very reason? - - - Yes.

All right. [The fifth complainant], can I put it to you that you in fact went back and worked at the shop quite a number of times? - - - No, I never.

Never did? - - - No."

77. There is nothing in her evidence in chief which asserted that the incident caused her to stop working in the shop. The fact that the accused's records would seem to indicate that she worked (or helped) in the shop between 1985 and 1987 does not cause me to doubt her account of the incident. There is no corroboration of her complaint and her evidence requires very careful scrutiny, but I am satisfied beyond reasonable doubt that it is truthful and accurate.

The sixth complainant - count 13

78. This incident was also a considerable time ago, in 1984 when the complainant was 12 or 13 and had just started high school. There was no complaint until 1 October 1999 and her reason was that she was scared that no-one would believe her. Her evidence was forthright and clear. Like the fifth complainant, she was asked in cross-examination about returning to the shop after the incident:

"All right. And after that incident you continued to go back to the shop didn't you? - - - Yes. But not serving.

I beg your pardon? - - - But not to serve there, just ---

Not to serve? - - - No.

Why did you go back there? - - - Because it was the general store and all the kids hung out there.

Yes? - - - And I always made sure that I was with someone.

Right. And it's your evidence, is it, clearly that you never went back to work again in the shop for [the accused]? - - - No, I didn't.

Right. It's implicit in that answer, is it, because you were afraid of what he'd done to you? - - - Yes.

And the position really is, isn't it, that you didn't complain to anybody because nothing happened like you've discussed? - - - That's not true.

All right. Well if it had happened I suppose you'd say you wouldn't have gone back to the shop, would you? - - - I'm sorry?

You didn't go back to the shop because you say it happened don't you?

MR LALOR: She said she went back to the shop but not to serve.

HIS HONOUR: Yes.

Mr TILMOUTH: I understand that qualification I'll withdraw the question.

You say you didn't go back to the shop to work because of what [the accused] did to you? - - - That's right."

79. Also, like the fifth complainant, this aspect did not form part of her evidence in chief. The accused's day book records her as being in the shop with others once in 1985 and on a few occasions in 1986 and 1987 and on one occasion in 1989. It does not appear that she was paid. It is at least consistent with her evidence that she continued to go back to the shop "because all the kids hung out there" and that "I always made sure that I was with someone". I do not regard the evidence as affecting the view that I take of her evidence generally.

80. There is no corroboration of this incident and I take account of the delay in complaining about the incident. Carefully considering her evidence and the matters that I have referred to as affecting it, I am satisfied as to its truthfulness and I am satisfied beyond reasonable doubt the incident involving the accused in count 13 took place.

81. For the foregoing reasons I find the accused guilty of counts 1, 2, 3, 4, 5, 6, 11, 12 and 13 in the indictment. At the close of the case for the prosecution, I had acquitted the accused of count 7. I find the accused not guilty of counts 8, 9 and 10.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 10 May 2002

Counsel for the Prosecution: Mr G C Lalor

Solicitor for the Prosecution: Commonwealth Director of Public Prosecutions

Counsel for the Accused: Mr S W Tilmouth, QC

Solicitor for the Accused: Baxter & O'Keeffe, Lawyers

Dates of hearing: 22, 23, 24, 29 & 30 April,

1 May 2002

Date of judgment: 10 May 2002