R v BRN[2020] QDCPR 52

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is the cousin of two men who are brothers: GJL (now 54 years old) and NSG (now 51).   The defendant is charged on indictment with 20 historical sexual offences against the two men, spanning the period March 1976 to November 1994. 
2. [2]
   The offences alleged against GJL fall into three categories:

   1. (a)
      First, two counts of indecent treatment of a boy under 17 and under 14, between March 1976 and March 1977;
   2. (b)
      Second, eight counts of indecent treatment of a boy under 17 between October 1977 and October 1979.  
   3. (c)
      Third, three counts of indecent assault covering the period 1982 to 1986. 
3. [3]
   The offences concerning NSG cover generally the same period but are all charged as indecent assault offences, even though they include offences allegedly committed at a time when he was under 14 and under 17.   
4. [4]
   NSG has lived in [redacted] for some years.  He has motor neuron disease.  On 23 October 2018, NSG participated in a videotaped interview with two [redacted] police officers (the Interview).   It is not in dispute that he is too unwell to attend the trial or otherwise to participate in cross examination and that that situation will not change.  In those circumstances, the Crown seeks to tender the Interview at trial under s. 93B(2)(b)  of the Evidence Act 1977 (Qld) (Evidence Act) which relevantly provides:

              93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

1. (1)
   This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

   1. (a)
      made a representation about the asserted fact; and

   1. (b)
      is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

2. (2)
   The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

   1. (a)
      made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

   1. (b)
      made in circumstances making it highly probable the representation is reliable; or

   1. (c)
      at the time it was made, against the interests of the person who made it.

…

4. (4)
   In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

…

5. [5]
   The indictment originally presented against the defendant included indecent treatment offences in relation to NSG as well GJL.  Indecent treatment is not a prescribed criminal proceeding as defined in s. 93B(4).  However indecent assault is such an offence.  For that reason, the charges against NSG are all brought under s. 377 of the Code.
6. [6]
   The matter first came before me for argument during the Gympie sittings of the Court (conducted from Brisbane on this occasion) on 2 April 2020.   On that occasion, a number of matters arose which counsel considered required further consideration.  The matter was adjourned.  On the further hearing of the application on 23 April 2020, the defendant, by his counsel Mr Hunter QC and Ms Bain, conceded that the Interview satisfied the test for admissibility under s. 93B(2)(b).^[1] In my respectful view, that concession was properly made.  However, given the importance of the issue that the matter was canvassed in some detail on the first hearing date, it is worth noting the following in that respect^[2]:

   1. (a)
      First, there is no evidence of inconsistent statements or conduct by NSG, before or after the Interview, which might impugn the reliability of the statements in the Interview (and this is so notwithstanding on 2 April I specifically raised the relevance of such evidence, if it existed);
   2. (b)
      Second, the Interview appears to have been made by NSG because of his impending death from motor neuron disease.  No other explanation for his decision to make the statement is evident neither from the depositions of other witnesses put before me nor from the Interview itself.  There is no suggestion that any further investigations are likely to lead to a different conclusion (again despite the issue being raised by me on the last occasion);
   3. (c)
      Third, the statement was taken by apparently experienced [redacted] police officers in circumstances of evident formality;
   4. (d)
      Fourth, NSG’s care attendant did frequently clarify what she thought NSG had said during the Interview.  Based on the text of the transcript, one can understand the reservations noted by the defendant’s counsel as to the carer’s involvement.  However the evidence is the audio visual recording comprised in the Interview, not the transcript.  Having watched the whole of the Interview it was plain in my opinion that NSG affirmed the clarifications by his carer clearly when they were made.  Further, in my opinion, more of his speech was intelligible than is shown in the transcript tendered on the application. I am satisfied that the evidence is his own, whether intelligibly stated by him or the result of his adoption of the restatement of his statements by his carer; and
   5. (e)
      Fifth, there is no basis on the face of the Interview to think that NSG was affected by any kind of incapacity or medication which affected his cognitive processes, despite his illness.  None was suggested.
7. [7]
   For at least those reasons, though the Interview lacked the circumstances of spontaneity and contemporaneity which frequently marks such statements as inherently reliable, it is my view that the defendant’s counsel correctly conceded that the Interview met the requirements of s. 93B(2)(b).  
8. [8]
   However, the defendant still opposes the admission of the Interview into evidence.  He contends that the Interview should be rejected under s. 98(1) Evidence Act or excluded under s. 130 Evidence Act.  Section 98(1) provides that:

The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interest of justice that the statement should be admitted.

9. [9]
   Section 130 provides that:

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit the evidence.

10. [10]
    Further, if the Interview is not rejected or excluded under those provisions, the defendant contends that the charges relating to NSG should be severed from the charges relating to GJL and separate trials of those charges ordered.  As will be seen, there is a significant overlap between the severance point and issues relating to the exclusion of the evidence.

The Crown case 

The indictment and particulars

11. [11]
    The current indictment was presented at the hearing on 23 April 2020.  That indictment differed from the previous indictment only in the articulation of the offences alleged against NSG while NSG was a minor, altering the offences from indecent treatment to indecent assault so as to bring those offences within the scope of the offences to which s. 93B applies.
12. [12]
    Thus in the original indictment, counts 2, 3 and 14 charged offences of indecent treatment of NSG.  The current indictment charges those offences as indecent assault.  Otherwise the indictment is unchanged in respect of the other counts relating to NSG, being counts 16 to 20.
13. [13]
    The Crown case was summarised in a statement of facts tendered at the hearing on 23 April 2020 (the SOF) a copy of which I annex to these reasons.  The SOF is articulated by reference to the previous indictment.  However, the primary distinction between the indecent treatment charges and the indecent assault charges is consent.  Not much seems to turn on this for the purposes of this application.  Thus nothing of substance seems to turn on the fact that the SOF relates to the previous indictment, not the current indictment.
14. [14]
    At this stage it is sufficient to note the following.  The SOF and indictment together allege:

    1. (a)
       The defendant engaged in rough conduct directed to getting the both boy’s pants off (Counts 1, 3 and 16);
    2. (b)
       The defendant took each boy individually to [redacted] house and committed offences of touching (Count 2) or masturbating (Counts 4 to 13) them;
    3. (c)
       The defendant took both boys to [redacted] house and masturbated them to ejaculation (Counts 15 and 16 to 19);
    4. (d)
       The conduct continued into young adulthood for both complainants; and
    5. (e)
       The defendant masturbated each boys to ejaculation on more than one occasion in the same incident (counts 4 to 11 and 17 to 19).

NSG’s evidence: the Interview

15. [15]
    Based on the transcript adduced on the hearing of the application (which as I have noted does not in my view do justice to the extent or clarity of the evidence NSG gives when the Interview is watched), that evidence can be summarised as follows.  NSG said:

    1. (a)
       He had come to talk about historical sexual abuse by the defendant;
    2. (b)
       The defendant was his cousin, being the son of his father’s brother and is 17 years older than NSG;
    3. (c)
       He first recalled the abuse started at the defendant’s house [redacted], though he did not recall when it first happened;
    4. (d)
       He recalled that the defendant would pick him up from his home in [redacted] and by the end of the street he would have his hands down NSG’s pants;
    5. (e)
       He vividly remembered when the defendant was decorating the [redacted] house he ran his hand up NSG’s leg when NSG was on a ladder and grabbed NSG’s penis, this happened countless times;
    6. (f)
       When the defendant engaged in touching or masturbating him, the defendant would have a wet spot on the front of the defendant’s pants caused by semen, though NSG did not know what that meant at the time;
    7. (g)
       The defendant was always rubbing NSG’s penis when at the [redacted] house;
    8. (h)
       He vividly recalled one day when at the [redacted] house that the defendant threw him on the ground and tried to pull his clothes off and he got away that time;
    9. (i)
       He recalled an incident in about 1982 after the defendant and his wife moved to a house in [redacted].  The incident occurred in a bedroom.  The defendant tried to get NSG’s shorts off.  There was a struggle.  The defendant prevailed and after the shorts came off, he masturbated NSG.  The defendant remained clothed through this incident, which occurred when NSG was about 12;
    10. (j)
        The defendant was a regular visitor to NSG’s family home in [redacted].  He assaulted NSG there was well.  He would come into the shower and grab or grope NSG.  He would come into his bedroom and put his hands under the covers.  He would touch him in the lounge room;
    11. (k)
        The defendant was infatuated with NSG’s penis and his foreskin. There were numerous times over many years;
    12. (l)
        It stopped when he left Australia for in about 2001 when NSG was about 32;
    13. (m)
        The defendant’s goal was to make NSG orgasm more than once. He was obsessed by it;
    14. (n)
        It happened so often that NSG said he became conditioned to accepting the touching and believed it to be acceptable;
    15. (o)
        The offences continued after he was an adult.  When he was 23 he was circumcised and the defendant came to the house and masturbated him while the stitches were still in place;
    16. (p)
        From 18 to 32, things of a sexual nature occurred regularly.  It involved masturbating NSG but the defendant never asked NSG to touch him.  That only happened at the very end when NSG was in his late 20s and he offered to do it; 
    17. (q)
        The defendant always had a wet spot on his shorts when he masturbated NSG;
    18. (r)
        When NSG returned to Australia in 2012, the defendant asked NSG if the defendant had ever forced himself on NSG.  The defendant said he had enjoyed doing it to NSG and thought that NSG liked it as well;
    19. (s)
        The first person NSG told about the abuse was his wife in about June 2018, then he told his mother in about August (2018 it seems). He had spoken about the abuse because he was dying and wanted the defendant (and another man who also abused him, Mr S) to be accountable for their conduct;
    20. (t)
        NSG had heard recently from his mother about GJL’s allegations of abuse at the hands of the defendant, but he did not know about this during the abuse;
    21. (u)
        The abuse happened about monthly, whenever the defendant had the opportunity;
    22. (v)
        NSG was between 8 and 10 years old when the abuse started.  He recalled being taken to the beach with the defendant and being touched on the penis when he had a shower;
    23. (w)
        Things also happened at the unit where the defendant lived between living in the house at [redacted] and the house at [redacted]. The masturbating started when NSG was about 12.  The defendant masturbated him whenever he got the opportunity.  He never masturbated NSG in front of other people.  He could be quite rough when taking off NSG’s pants;
    24. (x)
        He always used some sort of hand cream to masturbate NSG and always had a towel to clean up after NSG ejaculated.  He would then try to masturbate NSG to ejaculation again, as long as that kept occurring;
    25. (y)
        He was frequently masturbated on his own after school because he was home alone for a couple of hours then.  The door was never locked so the defendant could come in whenever he wished;
    26. (z)
        The defendant never asked NSG to masturbate him or showed him the defendant’s penis;
    27. (aa)
        As a child, he did not show his lack of consent but was never asked if he consented.  NSG said he was conditioned to accept the touching.  After he was adult he would say he did not want to do it, sometimes the defendant would stop and other times he would not;
    28. (bb)
        Although the defendant was rough in taking off his shorts, he was never violent, but he would never take no for an answer;
    29. (cc)
        The other person who also abused him as a child, Mr S, was more reasonable than the defendant and could be talked out of abuse sometimes.

GJL’s evidence

16. [16]
    The Crown intends relying on the evidence of NSG’s brother.  His evidence is as follows:

    1. (a)
       His family (including NSG) grew up in a house at [redacted]. Life was tough with both parents working.  They were farmers who held down full time jobs as well;
    2. (b)
       The defendant was his first cousin on his father’s side who was 14 years older than GJL;
    3. (c)
       When GJL was growing up, the defendant had unrestricted access to the family home.  The defendant was considered another son by his parents and he was always at their house;
    4. (d)
       When the defendant was about 22, he had a house at [redacted].  While he was doing renovations at that house, GJL and NSG were forced to go there to help;
    5. (e)
       NSG and GJL would be picked up by the defendant in his car and taken to the house.  He never took them together and the defendant’s wife would never be at the house;
    6. (f)
       The first incident occurred in the [redacted] house in a room in the middle of the house.  As soon as they got to that room, the defendant grabbed GJL’s penis outside his shorts.  GJL resisted.  The defendant wrestled him to the floor and eventually overpowered him.  The defendant then tore GJL’s shorts, pulled down his underpants and masturbated him.  The defendant had a wet spot on the front of his shorts from his own semen.  The defendant used some kind of hand cream to masturbate him;
    7. (g)
       After that the defendant masturbated GJL on numerous occasions at the [redacted] house even when his parents were home. After he masturbated him, the defendant would have a big wet patch;
    8. (h)
       GJL recalls the defendant masturbating him to ejaculation in the [redacted] house while his wife was having their daughter.  He was about 16 or 17 then;
    9. (i)
       He also recalls the same thing happening at the flat occupied by the defendant and his wife when they had their second child.  He used the hand cream;
    10. (j)
        He recalls being picked up by the defendant from the [redacted] house on dozens if not hundreds of occasions and had his hand in GJL’s lap even before leaving the street;
    11. (k)
        He recalled on one occasion when he was about 14, the defendant took him to the [redacted] house and masturbated him to ejaculation around 8 times.  His penis was very red and sore after that;
    12. (l)
        He stopped the abuse when he was about 18 to 20 years old.  Until then he felt conditioned to accept the abuse;
    13. (m)
        The defendant always used cream, always masturbated him, never exposed the defendant’s penis and never asked him to touch the defendant’s penis;
    14. (n)
        The defendant moved to a house at [redacted] after living in the small flat.  The abuse stopped soon after that move;
    15. (o)
        GJL did not speak to anyone about the abuse until he was much older because of his embarrassment;
    16. (p)
        GJL spoke to the defendant about the abuse when GJL’s father died and he was about 40.  He said he recalled the defendant’s wet patch and said he thought the defendant would have masturbated afterwards.  The defendant agreed. GJL asked why he involved him in it.  The defendant said he thought GJL wanted it because he kept coming back.  GJL said he was a child and had no option because he was handed on a platter.  The defendant said he knew it was wrong but could not help himself;
    17. (q)
        After visiting NSG in [redacted], their mother told GJL that NSG had said he was abused by another man (Mr S).  She asked if he had been abused.  GJL said he had been abused by that other man but that the defendant was worse.

Other evidence

17. [17]
    Apart from formal evidence from the Police, the remaining evidence comprises statements from the wife of GJL, the wife of the defendant, the Mother of the brothers and their sister.
18. [18]
    GJL’s wife gives evidence of preliminary complaint.  She says she was not told about any abuse by her husband until about September 2018.  He told her he was abused by the defendant and Mr S.  He described being taken to the [redacted] house and being touched in the car and at the house. 
19. [19]
    NSG’s wife gives evidence of preliminary complaint. She says that in about June 2018, NSG told her he had been abused as a child by Mr S. Soon after, she says he told her he was abused by the defendant and that the defendant was more aggressive than Mr S.  He told her the abuse stared from about 8 years old.
20. [20]
    The Mother confirms the evidence of GJL and NSG as to the presence of the defendant in the [redacted] house and his close relationship with the family.  She also gives evidence of preliminary complaint.  She confirms NSG’s evidence of telling his mother initially about Mr S.  She confirms that GJL told her about the alleged offending of the defendant.  She also confirms the evidence of both sons about being taken separately to the defendant’s house at [redacted]. 
21. [21]
    The sister of GJL and NSG is the oldest daughter of the family.  She confirmed that her parents worked a lot and that the children were home alone often. She gives evidence of complaints by GJL against Mr S and the defendant for the first time in September 2018.  GJL gave fairly detailed versions of the alleged abuse by the defendant on him which was largely consistent with his evidence above.  She has not spoken to NSG about his complaints.
22. [22]
    Finally, Dr Clive Fraser, a psychiatrist, gives evidence of detailed preliminary complaints against the defendant by GJL which are also consistent with his evidence above. 

 The defendant’s contentions

23. [23]
    The defendant submitted reliability was the central, but not the only, consideration which informed the discretions conferred by s. 98 and s. 130.  The defendant also accepted that the authorities supported the proposition that the mere fact that the defendant could not cross examine NSG was not a sufficient consideration to justify exclusion of the Interview under either section.
24. [24]
    However, the defendant submitted that the key consideration in this case was that the defendant would not get to cross examine the person who gave the only evidence of the commission of the offences against NSG.  It was submitted that this distinguished it from other cases involving tender of statements under s. 93B.  Reliance was placed on R v Higgins [2006] QDC 369, R v YL (2004) 187 FLR 84 at [55] to [57] and Webb v R (2012) 225 A Crim R 550 at [73] to [81].
25. [25]
    It was contended that the unfairness of a trial which permitted reliance on the Interview would be compounded by the delay which has passed since the offences were alleged to have been committed which have created a significant disadvantage to the defendant in defending the charges.  It would also be compounded by the temptation to the jury to sympathise with NSG’s poor health which would not be tempered by seeing him cross examined.
26. [26]
    As to joinder, the defendant contended that the evidence of GJL and NSG fall shorts of demonstrating a sufficient tendency or propensity which would make the evidence cross admissible in a joint trial of the offences against both brothers.  He contended that this case could be distinguished from the facts of R v McNeish [2019] QCA 191.   

The Crown’s submissions

27. [27]
    Ms Overell for the Crown submitted that the consideration that the evidence contained in the Interview was the central evidence in the case against the defendant was not sufficient to justify excluding the evidence.  Where the evidence is excluded under s. 98 or 130 Evidence Act, she submitted it must be because the defendant points to some reason to question the reliability of the evidence.  
28. [28]
    She also submitted that although NSG’s evidence was the only direct evidence of the acts comprising the offences, it was not the only evidence.  She submitted that the evidence of GJL was compelling propensity evidence which supported NSG’s account. 
29. [29]
    She also submitted that the circumstances of the preliminary complaint evidence tended to explain how the evidence came to be given by NSG in a manner which supported its reliability: the evidence disclosed no basis for inferring collusion or concoction.
30. [30]
    As to the severance issue, Ms Overell submitted that the extent of correlation in the evidence of both NSG and GJL in respect of very specific acts was such as to make the evidence of each cross admissible in the case of the other and that no other basis was shown to justify severance.

Cross admissibility and joinder

31. [31]
    If the evidence of GJL is admissible in a trial of the offences arising out of the Interview, then there will be circumstantial evidence which supports NSG’s account.  The inclusion of GJL’s evidence, therefore, might answer at least in part the contention by the defendant that it is unfair and contrary to the interests of justice to admit the Interview where it is the only evidence of the acts comprising the offences against NSG.  It is therefore useful to determine the cross-admissibility of the evidence of NSG and GJL before considering the s. 98 and s. 130 issues.
32. [32]
    These issues arose in argument in the context of the defendant’s application for separate trials of the charges involving NSG and GJL.  In this part of the judgment I will approach them in that way.

Relevant principles

33. [33]
    The principles applicable when assessing whether propensity evidence will be admissible where it relates to offences allegedly committed against different complainants was recently analyzed in R v McNeish [2019] QCA 191, particularly in the majority judgment of Sofronoff P and Henry J.   That judgment was recently reviewed by Moynihan DCJ in the context of an application to sever in R v Lee [2019] QDCPR 63.  His Honour held (footnotes omitted):

3. The applicable law

3. The statute

3. [36]
   The Code provides that an indictment must charge one offence only and not two or more offences unless the Code expressly provides for it.  Section 567(2) of the Code relevantly provides:

3. “567 Joinder of charges

...

3. (2)
   “Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

3. Section 597A of the Code provides the power to order separate trials in relation to more than one offence charged in the same indictment. It provides:

3. “597A Separate trials where 2 or more charges against the same person

3. (1)
   Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.”

3. [37]
   In considering whether to order separate trials in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.

3. Relevance

3. [38]
   The evidence must be relevant. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

3. [39]
   In R v McNeish [2019] QCA 191, Sofronoff P and Henry J made clear the prosecution must first identify the purpose for which the evidence of other charged or uncharged acts is led and that includes:

3. “1.
   To remove the implausibility that might otherwise be attributed to the complainant’s account of the offence if the offending were thought to be an isolated incident; (sometimes called “relationship evidence”).

3. 2.
   To demonstrate the sexual attraction felt by the accused so as to show a motive to commit the offence; (“motivation evidence” and sometimes also called “relationship evidence”).

3. 3.
   To demonstrate that the accused not only had a motive to commit the offence but that he was a person who was prepared to act on his motivation to commit the charged offence because he had committed similar offences against the complainant or others previously (sometimes called “tendency” or “propensity” evidence).

3. 4.
   To identify the offender, as in Pfennig itself.”

3. [40]
   Their Honours observed at [31] that:

3. “The first three categories are cases in which the evidence is led to supplement other evidence that an offence has been committed by the accused. The fourth category involves cases in which the fact that an offence has been committed is proved by other evidence and the disputed evidence is tendered to identify the accused as the offender. To these categories, one can add a fifth category for completeness. As in Makin v Attorney-General for New South Wales, sometimes similar factual evidence is led as circumstantial evidence that an offence has been committed and that the accused is the offender. It is not necessary to consider the fourth and fifth categories further in this appeal.” (Footnotes omitted)

3. [41]
   Secondly, the prosecution must demonstrate how the evidence admitted for each purpose could be relevant. For example, in relation to the first purpose:

3. “Such evidence is admitted because the interests of justice require that the jury be able to understand the Crown case by seeing the case in its true factual context and not within an unrealistically truncated form. If such evidence were to be excluded, the jury would be denied the real factual basis upon which to understand aspects of the case that the complainant’s and the accused’s actual history might explain…The evidence is relevant simply because, if it is believed, the facts proved by that evidence render the commission of the charged offence more probable.”

3. [42]
   In relation to the second purpose:

3. “Motive has always been relevant as a circumstance to make a fact in issue more probable. Motive is usually constituted by facts that prove an accused’s disposition to commit a particular crime, such as the murder of a spouse. In cases involving sexual offences against children a more accurate term than “motive” might be “urge” or “desire”…” (Footnotes omitted)

3. [43]
   And finally, in relation to the third purpose above, it is:

3. “…to render the commission of the offence more probable because the evidence of uncharged acts shows not only that the accused has the particular sexual urges but that he is prepared to satisfy them by action.” (Footnotes omitted)

3. [44]
   Thirdly, the prosecution must satisfy the requirement for there to be a link between the evidence and the acts charged. Their Honours said at [39] – [40]:

3. “In multiple complainant cases the evidence must have a “really material bearing on the issues to be decided” or have a “sufficient nexus” with the evidence on the charged offence. As the Court put it in Bauer, the logic of probability reasoning dictates that there must ordinarily be some feature that links the two sets of evidence together.

3. However, in sexual offence cases, it is not necessary that the particular acts that constitute the uncharged offences and the particular acts that constitute the charged offence be of the same kind. Evidence of uncharged sexual offences may be relevant and highly cogent even if the acts that constitute those offences are different from the charged offence.”

3. An exclusionary rule

3. [45]
   Is a rule engaged to exclude the evidence? The evidence is not admitted unless it first satisfies the test for the admission of propensity evidence enunciated by the High Court in Pfennig v The Queen (1995) 182 CLR 461 (“Pfennig”).

3. [46]
   In Pfennig, Mason CJ, Deane and Dawson JJ observed at 481:

3. “So much was recognized by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen where their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged. Mason CJ, Wilson and Gaudron JJ said:

3. ‘Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force…That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.’

3. This passage should not be understood as asserting that “striking similarities” or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.” (Footnotes omitted)

3. [47]
   The test, in short, is whether, acting on the assumption that the jury accepts the evidence as true, that evidence allows, on the whole of the evidence, of no reasonable hypothesis consistent with innocence of the charge in question. That is, there is no rational view of the evidence that is consistent with the innocence of the accused. Pfennig does not require the judge to conclude that the propensity evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.

3. The residual discretion

3. [48]
   The probative value of the evidence must outweigh its prejudicial effect and it must not be unfair to admit it. The prejudicial effect referred to is the risk the jury may use the evidence to engage in impermissible reasoning. That is, use the evidence in a “logically irrational manner”.

3. The process

3. [49]
   A judge deciding the question of cross-admissibility in a multiple complainant case should ask:

3. 1.
   What is the fact in issue in the trial?

3. 2.
   What is the relevant tendency the Crown alleges the impugned evidence is adduced to prove?

3. 3.
   Does that evidence have significant probative value? That is, if accepted, does it prove the alleged tendency and contain features that link the doing of the acts relied on to an issue in the trial?

3. 4.
   If it does, does the significant probative value substantially outweigh any prejudicial effect the evidence may have on the accused?

3. Analysis

34. [34]
    An indictment charging acts against multiple complainants will be severed unless all the evidence of acts against each complainant is cross admissible: that is the evidence of each complainant is admissible in the case concerning each other.^[3]  In this case, I intend to focus, where appropropriate,  on whether the evidence of acts charged concerning GJL are admissible to prove the acts charged concerning NSG.  That is because if GJL’s evidence is admissible in the case concerning NSG, the defendant’s submissions relying on s. 98(1) and s. 130 are in my view, significantly weakened.  However, given the similarity in the evidence given by both brothers, the point is probably moot.  With one exception I will deal with specifically concerning count 20, if GJL’s evidence is admissible in the case concerning NSG, NSG’s evidence will be admissible in the case concerning GJL.

The fact in issue 

35. [35]
    The fact in issue to which GJL’s evidence is said to be relevant is whether the acts comprising the charged offences against NSG occurred or not.  More specifically, they engage the third purpose in McNeish: to show the defendant’s propensity to commit the kind of offences alleged concerning NSG. 

The relevant tendency 

36. [36]
    Ms Overell articulated the tendency which the evidence of the complainants demonstrates is as follows:

    1. (a)
       That the defendant had a tendency to repeatedly masturbate his young male cousins;
    2. (b)
       That the defendant had a tendency to behave aggressively toward the complainants (to obtain their compliance and in masturbating them); and
    3. (c)
       That the defendant had a tendency to engage in brazen sexual acts even when others were close by.
37. [37]
    In my view, it could be argued that the evidence goes further.  It could be argued that it demonstrated a tendency:

    1. (a)
       To use hand cream when masturbating his young cousins;
    2. (b)
       To make use of his privileged access as a trusted member of the family to get his young male cousins alone so he could masturbate them;
    3. (c)
       Not to seek or obtain masturbation from them in turn, but rather to remain in a state of sexual arousal while masturbating them
    4. (d)
       To press his interest in masturbating them into their adulthood.
38. [38]
    The comparison of the summaries of the evidence of NSG and GJL is probative of each of the tendencies articulated above.  Indeed both complainants give direct of acts comprising or demonstrating those tendencies.

Link between the tendency and acts charged

39. [39]
    I refer to the observations on this aspect of the reasoning process from McNeish in paragraph [44] in the above quotation from R v Lee.   In my view, there is little room for doubt that if the jury were to accept the evidence of the tendency articulated by reference to GJL’s evidence, it would increase the likelihood that NSG’s account of the offences concerning him was true.  The co-incidence of the mode of alleged offending against the two complainants leaves little room for doubt on that score.  

Probative value of the tendency evidence

40. [40]
    I refer to the observation by the majority of the Court of Appeal in McNeish at [60], where their Honours observed:

              The significant probative force of the evidence stems from the objective improbability that three pre-pubescent sisters from the same household would, without colluding, each falsely allege that the appellant repeatedly engaged in sexual activity towards them in similar surrounding circumstances. The appellant seeks to avoid this significant probative force by focussing instead upon the differences, particularly in degree, in the specific offending acts.             

[Footnotes omitted]

41. [41]
    Those comments apply with even more force in this case where the accounts have such striking similarity.  On any of the articulations of the character of propensity evidence which is required for it not to be excluded^[4], I consider that the evidence given by each complainant has the necessary character compared to the offences concerning the other.
42. [42]
    Focusing on the analysis of the propensity evidence as circumstantial evidence, in the manner articulated in McNeish at [63] to [65], it is plain in my view that if I assume that the propensity evidence of each complainant is true and that the prosecution case in respect of the charges concerning the other complainant is accepted, there is no reasonable view of the propensity evidence which is consistent with the defendant’s innocence of the charges. 

The defendant’s contentions

43. [43]
    The defendant’s written submission sought to distinguish the facts in McNeish from the facts in this case.^[5]  The submission was:

The evidence here falls short of establishing the tendency or propensity that was proven in McNeish. McNeish was merely a neighbour, but inveigled his way into the complainants’ family, and took advantage of his dishonestly gained trust to abuse three sisters aged between two and ten. The evidence therefore had the required exceptional character.

This is to be contrasted with the present case, where the applicant was a cousin, the complainants were older, and indeed adults, at the time of some of the offending.

44. [44]
    I do not find this argument persuasive.  The question is not whether the tendency in this case can be contrasted in some respects with the tendency identified in that case, but rather whether the tendency identified in this case has the necessary link to the offences charged in this case.
45. [45]
    But even the points raised identify a distinction rather than a difference: the defendant might not have inveigled his way into the family for the purpose of abusing his cousins, but he nonetheless held a position of trust and confidence in the family and used it, on the Crown evidence, to abuse both young boys who were thereby vulnerable to his predations.  The analogy with McNeish is strong on this point.
46. [46]
    The one point which gave me cause for reflection, however, was the submission that the tendency evidence of GJL might not meet the requirements of Pfennig in respect of the offences against NSG when NSG was an adult.  That proposition is unpersuasive in respect of the offending while NSG was around 17 years old as identified in counts 16 to 19.  That is because GJL’s evidence is that the offending by the defendant continued until he was between 18 and 20.   That is consistent with the defendant having a continuing propensity to offend into young adulthood. 
47. [47]
    Count 20 might be thought to be in a different category because it involved offending when NSG was between 22 and 25, which might be thought to be qualitatively different offending from offending against a very young adult. I am not persuaded it is.  Offending against GJL did not stop on his evidence because the defendant lost interest in him as a mature man, but because GJL clearly refused to allow further acts.  It seems to me that that evidence is consistent with the defendant being interested in pursuing his peculiar tendency with his male cousins so long as they would submit to that conduct.

Conclusion

48. [48]
    Each of the complainants’ evidence is admissible in the case concerning the other in respect of each offence charged.  Accordingly, I dismiss the application to sever the indictment and for separate trials.

Should the Interview be excluded in any event?

49. [49]
    Principles relevant to the discretions conferred by s. 98(1) and 130 Evidence Act in the context of admission of statements under s. 93B were recently collected and restated by Morrison JA in R v Adcock [2017] 2 Qd R 469.  There his Honour observed:

3. [66]
   The test to be applied when considering the application of s 98 has been the subject of authority in this Court. In R v D Davies JA said:

3. “[18]
   In my opinion it would be a rare case in which a court will exclude a statement, otherwise admissible pursuant to s 93A, pursuant to either the discretion conferred by s 98 or that conferred by s 130. It is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds its probative value because in almost all cases the probative value of such a statement is very high. And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion.”

3. [67]
   In the same case Jerrard JA had the following to say:

3. “[61]
   In R v FAR [1996] 2 Qd R 49 Davies JA, (at page 61) with whom Pincus JA agreed on this point, wrote that the question whether the discretion under s 98 (or s 130) should be exercised to exclude a statement otherwise satisfying the requirements of s 93A would almost always turn on its reliability. He added that there would be many factors which might affect that question. In R v Morris [1996] Qd R 68 Dowsett J, whose judgment was that of the court, wrote (at page 75) that:

3. “I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s 98. Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not to be received for reasons directly related to the interest of justice.”

3. [62]
   With respect to s 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial. As the joint judgment of Toohey, Gaudron, and Gummow JJ records, unreliability is regarded as a touchstone of unfairness.”

3. [68]
   This Court considered the test subsequently in R v FQ, 70 where, having referred to Morris, FAR and R v D, Holmes JA71 said:

3. “[33]
   The comments set out above from Morris, FAR and D say no more than that reliability often will be the focus of consideration in deciding how to exercise the discretion; they do not suggest that it is the only consideration. Some care must be taken, too, with the word “reliability” itself; it may be used in a narrow sense, in reference to the reliability of the evidence to be admitted per se, or more broadly, in reference to general issues affecting reliability. As to the first sense, a statement or statements whose content is manifestly unreliable may well, it seems to me, be more safely and fairly left to a jury than evidence whose reliability is potentially affected by external factors less obvious and less capable of being explored. Hayne J observed in Gately v The Queen that s 93A made a

3. “special rule for children and intellectually impaired persons … for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding.”

3. That preservation of the integrity of the evidence, in the sense of maintaining it as a whole, may work for or against an accused; it may, for example, make inconsistencies apparent in a way that selective presentation would not.

3. [34]
   But s 98 uses a breadth of expression which goes well beyond questions of reliability, extending to exclusion where it appears to the court “inexpedient in the interest of justice” to admit the material. It would embrace exclusion for reasons of unfairness (which may still, of course, have some bearing on reliability) or public policy. For example, a deliberate choice by investigating police officers not to use available recording facilities in order to impede examination of their interviewing techniques might well provide a basis for exclusion in the interests of justice.”

3. [69]
   McMurdo P referred to the particular statement in question in FQ, namely a statement from a child under s 93A of the Evidence Act, and said:”

3. “[6]
   It is not unusual for statements taken under s 93A from children and intellectually impaired people to be inconsistent, either internally, when compared with their other evidence or when contrasted to independent evidence. Whether such inconsistencies mean that a statement of the child or intellectually impaired person cannot safely be relied upon is often a difficult issue and one with which juries must routinely grapple. The question of reliability is generally best left for the jury to determine after receiving appropriate judicial directions. That said, there may be occasions when a s 93A statement is so patently unreliable that it is appropriate to exercise the discretion given under the Act to exclude it from being given as evidence at trial.”

3. [70]
   From those authorities the following relevant principles can be extracted in relation to the exercise of the discretion under s 98 or s 130:

1. (a)
   “reliability” often will be the focus of consideration in deciding how to exercise the discretion, but it is not the only consideration;
2. (b)
   “reliability” is used in its narrow sense to mean the reliability of the evidence to be admitted per se;
3. (c)
   used in a broader sense, “reliability” refers to general issues affecting reliability;
4. (d)
   s 98 goes beyond “reliability” and embraces exclusion in the interests of justice, and for reasons of unfairness or public policy; and
5. (e)
   a statement, the content of which is manifestly unreliable in the narrow sense, may well be more safely and fairly left to a jury, than evidence the reliability of which is potentially affected by external factors less obvious and less capable of being explored.

50. [50]
    There are two points to note at the start.  The first is that the defendant accepts that the mere fact that it will not be possible to cross examine NSG on the Interview is not of itself sufficient to justify excluding the Interview.^[6]  The second is that the defendant accepts that he can point to no considerations which would suggest that the evidence given in the Interview is unreliable in the broad sense explained by Morrison JA.^[7] 
51. [51]
    Rather, the gravamen of the defendant’s case on exclusion is that the Interview should be excluded because of the inability to cross-examine the central witness in the case against the defendant involving historical allegations about which the defendant can be expected to say no more than: I did not do it.^[8]
52. [52]
    It can be accepted that while the inability to cross examine is not of itself sufficient to justify exclusion of the Interview, the inability to cross examine along with other factors might.^[9]  It can also be accepted that an inability to identify any specific basis to impugn the reliability of the Interview will not of itself defeat a challenge to admissions under s. 98(1) or s. 130.  So much is made clear in Adcock.
53. [53]
    However, I do not accept that the mere fact that the Interview is the evidence of the central witness in the case concerning NSG is a sufficient reason to justify exclusion.   Such a proposition is in my view inconsistent with the passages from R v D^[10]  adopted in Adcock above.   Davies JA’s observation that “in almost all cases the probative value of such a statement is very high” recognises that evidence given in statements may be central in proof of an offence supports that conclusion.  More compellingly, the focus of both judgments on reliability rather than the centrality of the evidence to the case against the defendant is inconsistent with the proposition in the first sentence of this paragraph.  The defendant relied on R v YL (2004) 187 FLR 84 at [55] to [57] in support of that proposition.  There Crispin J said:

3. [55]
   Furthermore, even if the representations had otherwise been admissible, s 137 of the Evidence Act would have required their exclusion. That section provides that “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

3. [56]
   It is, of course, vitally important that counsel for an accused person have an opportunity of fairly testing the evidence adduced against his or her client. That is usually done by cross-examination, a process which Colman J of the Supreme Court of South Africa has described as 'perhaps the most useful of all the instruments used in the administration of justice. See Colman QC, G, Cross Examination; A Practical Handbook, Juta & Co Ltd, Cape Town, 1970, at 1. Lord Hanworth MR has also affirmed its value in testing the veracity of a witness and the accuracy of his or her account. See Mechanical & General Inventions Co Ltd and Lehwess v Austin and Austin Motor Co (1935) AC 346 at 359. If the opportunity to cross-examine a significant witness is denied then the accused may well suffer real prejudice. When the prosecution is essentially dependent upon the allegations made by a single person then the admission of hearsay accounts of the allegations made by that person without any opportunity for cross-examination as to their truth and accuracy may result in substantial unfairness.

3. [57]
   Every case must, of course, be considered on its merits but in this trial, I was left in no doubt that the probative value of the hearsay evidence upon which the Crown sought to rely would have been outweighed by the danger of unfair prejudice to the accused.

54. [54]
    To the extent that his passage suggests that the mere lack of a right to cross examine the central witness necessarily demonstrates unfairness in the trial, I do not consider it consistent with R v D and Adcock.  However, I do not think his Honour was saying that.  His Honour considered that that situation may result in unfairness but that every case depends on its merits.
55. [55]
    The defendant also placed reliance on observations of McGill DCJ in R v Higgins [2006] QDC 369 at [43].  There his Honour observed (footnotes omitted):

3. [43]
   It did occur to me in the course of the submissions that a distinction may be drawn between those cases where the evidence admissible under s 93B is the only evidence, or the most important evidence, in respect of one or more of the elements of the offence and those where it is part of a wider case. In this respect, the position of the two counts is different. There is a good deal of evidence available apart from the complainant in relation to the offence of assault occasioning bodily harm, including the evidence of the admissions made to police by the applicant. In relation to the charge of rape, the applicant admitted to sexual intercourse, but claimed that the intercourse was consensual. Accordingly, in relation to the count of rape, the matters particularly contentious at a trial would be whether there was an absence of consent, and whether an honest and reasonable mistaken belief as to consent had been excluded. These are matters in respect of which the complainant’s evidence would be crucial.

56. [56]
    I do not think the comment in the first sentence in this paragraph represents any statement of principle.  This is clear from the fact that in the balance of his Honour’s judgment, he concludes that the statement in question should not be excluded in respect of the rape charge because there was an inadequate foundation for the conclusion that the evidence was unreliable, or at least unreliable in a manner which made admission unfairly prejudicial to the defendant: see [44] to [46] of the judgment.
57. [57]
    The statement in paragraph [51] above is not the limit of the matters relied upon by the defendant.  Mr Hunter also pointed to the risk of undue sympathy for NSG where he appears in the video as a person who is very ill and debilitated, and where that sympathetic response cannot be challenged by cross examination.  As Mr Hunter put it: “one can imagine a jury saying, “Poor fellow” or  “He’s dying.  Why would he be making this up?”  And the defendant has no chance actually to pull him on for a disagreement in front of the jury about it.”^[11]
58. [58]
    Despite these arguments, the Interview should not be excluded under either s. 98(1) or s. 130 for the following reasons. 
59. [59]
    First, there are a number of matters which support its reliability:

    1. (a)
       The evidence of GJL looms large in this regard.  As noted above, the probability that the account given by NSG could be mistaken, fabricated or exaggerated is very significantly reduced by GJL’s evidence (and indeed vice versa);
    2. (b)
       The circumstances of the emergence of the complaints by both brothers does not appear to suggest, at least on any evidence currently before me, any such collusion, mistake or exaggeration;
    3. (c)
       There are some objective reference points in other evidence which supports the reliability of the accounts, including the evidence of the Mother and the complainants’ sister as to the defendant’s place in the family, the defendant taking them to do work at the [redacted] house, the opportunity for the uncharged acts at the [redacted] house to occur (because the complainants were often home alone after school for example) and the organic manner in which the complaints emerged; and
    4. (d)
       There does not seem to be any specific points otherwise telling against the reliability of NSG’s account, as Mr Hunter frankly recognised.
60. [60]
    Second, as I have noted, Mr Hunter sought to turn the lack of concrete grounds to challenge reliability of the Interview into a matter which tended to support exclusion.    He submitted that the particular problem faced by the defendant in this case was that the offending was alleged to have occurred between 30 and 40 years ago and that it was not surprising that the defendant was not in a position to address specific reliability of the evidence because he lost the opportunity to do so because of the passing of time since the alleged offending.  To some extent, that disadvantage can be addressed, however, with a Longman direction.   More relevantly, there is nothing about the delay in the matter per se which justifies treating the Interview differently from viva voce evidence of historical sexual offences.  There is always delay in such cases.
61. [61]
    Third, the forensic disadvantage to the defendant of not being able to challenge the evidence of NSG by cross examination is significantly ameliorated by the availability of GJL for cross examination.  His presence will make it possible to explore the prospect of collusion or fabrication with one of the persons who would have had to have been a party to such conduct.  Further, there is always the possibility that GJL told NSG the details of what he alleges or vice versa, such that one of the brothers is adopting the story of the other without any deliberate collusion with the other.  However, that can also be explored with GJL in cross examination.  It can also be examined in cross examination with NSG’s mother who was involved in the disclosures of the alleged offending by both sons.
62. [62]
    Fourth, the risk that the jury will not see NSG challenged in cross examination and therefore put too much weight on the Interview would be more compelling if the defendant could point to some specific line of cross examination which could be adopted.  If some specific matter could be identified, the prospect of unfairness could be meaningfully addressed (see the discussion of this matter in Webb v The Queen (2012) 225 A Crim R 550 at [73] to [80]).  However, that is not the position. If the cross examination was to amount to no more than putting the defendant’s case and exploring speculatively for some cross examination gold, it is hard to see why the jury would necessarily be less inclined to accept NSG’s evidence than if that did not occur.  Really, the point comes down to this: juries should act on the basis of the evidence and the directions and decide on their verdicts on that basis.  All considerations of sympathy and prejudice must be excluded.  Juries are directed in that manner in every case, including cases where the complainant is apt to attract sympathy.  This does not seem to me to be a consideration favouring excluding the Interview.  
63. [63]
    Fifth, it is relevant to again recall that the s. 93B statement was given in circumstances which tend to support its reliability.  It was evidence given in the shadow of death and explained by the desire to bring the complainant to account and to protect other vulnerable persons by speaking up.  There is always the possibility that that explanation is false and that there is some unknown motive for a false complaint, but that possibility can be covered by a direction to the jury. 
64. [64]
    Finally, for completeness, I reject the proposition that NSG’s evidence stands alone.  It is supported by GJL’s evidence.  It is also supported in some respects already outlined by his mother’s evidence.
65. [65]
    For these reasons I do not accept that the adducing of the Interview would be contrary to the interests of justice, nor that there is prejudice to its tender which would justify its exclusion under s. 130.  The possibility of improper use or reasoning can, in all the circumstances, be addressed by directions from the trial judge, including the warning which attends tender of s. 93B statements which is directed by the statute itself: see . 93C Evidence Act.
66. [66]
    The application to exclude the Interview from the trial is dismissed.

Annexure: Crown Statement of Facts

STATEMENT OF FACTS

R V BRN

106683/PROS/19/MAD

Background

3. 1.
   The defendant (DOB [redacted]) was 24-42 years old at the time of the offending. The complainant for Counts 1, 3-10, 11, 12, and 14, GJL (DOB [redacted]) was 12-22 years old at the time of the relevant time. The complainant for Counts 2, 13, 15, 16-19 and 20, NSG (DOB [redacted]) was 8-24 years old at the relevant time. The defendant is the older cousin of each of the complainants and knew the complainants from an early age.

3. 2.
   The offending consisted of the defendant masturbating each complainant with his hand, while using some sort of moisturising cream. The defendant offended against each complainant separately and neither complainant knew that the other was being offended against until the offending came to light around August 2018.

Offending Count 1

3. 3.
   The defendant purchased a house at [redacted] around April 1976 and began renovations on the house almost immediately. On a date unknown between 1 March 1976 and 1 March 1977, when GJL was around 11 or 12 years old, he was taken by the defendant to the residence at [redacted], on the pretence that he assist the defendant with renovations on the house. On arrival, the defendant grabbed GJL’s penis through his shorts. GJL resisted and the defendant wrestled him to the floor and positioned himself on top of him preventing him from moving.

3. 4.
   GJL continued to struggle and saw that the defendant had a large wet patch on the front of his pants and the defendant commented that the wet patch was there because he was “leaking”. The defendant removed GJL’s shorts and masturbated GJL’s penis with a moisturising cream (Count 1). The defendant told GJL that he was “a strong little bastard” after he had finished masturbating GJL’s penis.

Offending Count 2

3. 5.
   On a date unknown between 1 March 1976 and 1 March 1977, when NSG was around 6 years old, he was taken by the defendant to the residence at [redacted], on the pretence that he assist the defendant with renovations on the house. NSG assisted the defendant by climbing a ladder at one point and the defendant reached into NSG shorts through the pant leg and touched NSG on the penis (Count 2). 

Offending Count 3

3. 6.
   On a date unknown between 1 March 1976 and 1 March 1977, when NSG was around 6 years old, he was taken by the defendant to the residence at [redacted]. While NSG was there, the defendant threw NSG onto a bed and attempted to remove NSG shorts (Count 3). NSG ran away from the situation.

Offending Counts 4-11

3. 7.
   On a date unknown between 1 October 1977 and 1 October 1979, the defendant brought GJL to the [redacted] address. The defendant masturbated GJL’s penis on 8 consecutive occasions using a moisturising cream on each occasion (Counts 4-11). GJL ejaculated on each occasion. GJL ejaculated each time and at the end of the offending his penis was sore and had been rubbed red raw.

Offending Counts 12 & 13

3. 8.
   On a date unknown between 1 June 1982 and 30 June 1982, the defendant brought GJL  to the [redacted] address, at a time when the defendant’s wife was in hospital giving birth to their first child. On this occasion the defendant masturbated GJL’s penis with a moisturising cream until he ejaculated (Count 12).

3. 9.
   On a date unknown between 1 October 1985 and 31 October 1985, the defendant brought GJL to the [redacted] address, at a time when the defendant’s wife was in hospital giving birth to their second child. On this occasion the defendant masturbated GJL’s penis with a moisturising cream until he ejaculated (Count 13).

Offending Count 14

3. 10.
   Around September 1985, the defendant purchased land at [redacted]. He engaged a builder to build a house on the land to be completed early 1986. In the interim, the defendant rented a unit at [redacted]. The defendant’s wife only moved into the house at [redacted] around February 1987.

3. 11.
   On a date unknown between 1 September 1985 and 1 May 1986, the defendant brought NSG to the unit at [redacted]. The defendant masturbated NSG penis until he ejaculated while he was at the unit (Count 14).

Offending Count 15

3. 12.
   On a date unknown between 1 March 1986 and 1 May 1987, the defendant brought GJL to the newly built house at [redacted]. The defendant then masturbated GJL’s penis until he ejaculated (Count 15).

Offending Count 16

3. 13.
   On a date unknown between 1 March 1986 and 1 May 1987, the defendant brought NSG to the [redacted] address. Whilst NSG was in the defendant’s daughter’s bedroom the defendant attempted to remove NSG’s pants. NSG struggled and the defendant pinned NSG to the ground. The defendant removed NSG’s pants and masturbated NSG’s penis until he probably ejaculated (Count 16).

Offending Counts 17-19

3. 14.
   On a date unknown between 1 March 1986 and 1 May 1987, the defendant brought NSG to the [redacted] address. On three occasions during the single incident, the defendant masturbated NSG’s penis on three consecutive occasions within three different rooms in the house (Counts 17-19). NSG ejaculated on each occasion.

Offending Count 20

3. 15.
   On a date unknown between 1 October 1991 and 1 November 1994, the defendant attended NSG’s address at [redacted] and masturbated NSG’s penis at a time when NSG was recovering from a circumcision operation (Count 20). The masturbation caused stitches in NSG’s penis to tear. 

Detection

3. 16.
   NSG disclosed unrelated offending to his mother, around August 2018, when she visited him in [redacted]. The Mother was concerned that GJL had also been offended against due to his frequent childhood nightmares. The Mother returned to Australia and spoke with GJL who disclosed that offending involving BRN had occurred against himself.

3. 17.
   In the following weeks, GJL disclosed the offending to other family members as well as counsellors and medical professionals. On 23 October 2018, NSG disclosed the offending involving BRN in a recorded interview to [redacted] police on account of his motor neurone disease. On 4 November 2018, GJL disclosed the offending to police.

3. 18.
   On 26 March 2019, the defendant attended the Gympie police station where he declined to be interviewed, and was subsequently arrested, charged and released on bail.