AA v MacDonald; BB v MacDonald [2026] NSWDC 1
Catchwords: EVIDENCE – certificates of conviction tendered pursuant to s 178 of the Evidence Act 1995 (NSW) – where certificates of conviction provide prima facie evidence of the offences involved EVIDENCE – s 140 Evidence Act 1995 (NSW) – the standard of proof which is satisfied on the balance of probabilities is not altered by the nature of the misconduct alleged – the decision in Briginshaw v Briginshaw considered EVIDENCE – probative value of tendency and coincidence evidence TORTS – trespass to the person – assault – battery – sexual assault – where plaintiffs allege historical sexual abuse by the defendant – where defendant denies all allegations – where defendant alleges fabrication – consideration of credit issues and corroborating evidence
District Court
New South Wales
Medium Neutral Citation:
AA v MacDonald; BB v MacDonald [2026] NSWDC 1
Hearing dates:
17 – 20, 23 – 24, 27 June 2025
Date of orders:
5 February 2026
Decision date:
05 February 2026
Jurisdiction:
Civil
Before:
Catsanos SC DCJ
Decision:
In matter number 2024/75758
AA v MacDonald :
(1)
Judgment for the plaintiff against the defendant in the sum of $1,898,701.
(2)
The defendant is to pay the plaintiff’s costs of the proceedings.
In matter number 2024/199266
BB v MacDonald :
(1)
Judgment for the plaintiff against the defendant in the sum of $993,741.
(2)
The defendant is to pay the plaintiff’s costs of the proceedings.
Catchwords:
EVIDENCE – certificates of conviction tendered pursuant to s 178 of the
Evidence Act 1995
(NSW) – where certificates of conviction provide prima facie evidence of the offences involved
EVIDENCE – s 140
Evidence Act 1995
(NSW)
– the
standard of proof
which is satisfied on the balance of probabilities is
not altered by
the nature of the misconduct alleged – the decision in
Briginshaw
v
Briginshaw
considered
EVIDENCE – probative value of
tendency
and coincidence evidence
TORTS – trespass to the person – assault – battery – sexual assault – where plaintiffs allege historical sexual abuse by the defendant – where defendant denies all allegations – where defendant alleges fabrication – consideration of credit issues and corroborating evidence
Legislation Cited:
Crimes Act 1900
(NSW), ss 61D, 61E, 76
Evidence Act 1995
(NSW), ss 97, 98,
140, 178
Cases Cited:
Briginshaw
v
Briginshaw
(1938) 60 CLR 336; [1938] HCA 34
MTH v State of New South Wales
[2025] NSWCA 122
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66
Category:
Principal judgment
Parties:
Proceedings 2024/75758
AA (Plaintiff)
Kenneth MacDonald (Defendant)
Proceedings 2024/199266
BB (Plaintiff)
Kenneth MacDonald (Defendant)
Representation:
Counsel:
Mr R O’Keefe SC with Ms K Young and Mr B Madden (Plaintiffs)
Mr M Dennis SC with Mr J Wilson (Defendant)
Solicitors:
RMB Lawyers (Plaintiffs)
Kells The Lawyers (Defendant)
File Number(s):
2024/00075758
2024/00199266
Publication restriction:
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the publication of the names or other identifying information of the plaintiffs and witnesses, other than the defendant, is prohibited.
JUDGMENT
Background
Before me are proceedings in the matter s
of
AA v Kenneth MacDonald
and
BB
v Kenneth MacDonald
.
In accordance with non-publication orders made at the commencement of the trial, the plaintiffs ,
witnesses
and information tending to identify them
have been
anonymised
for the purposes of
this judgment.
Both plaintiffs seek damages from the defendant
in respect of numerous
acts of sexual assault said to have occurred when they were children. The plaintiffs were childhood friends. AA was a few years older than BB. They went to school together and lived close to each other. The defendant lived nearby with his wife and family.
The causes of action relied upon by the plaintiffs lie in the torts of assault and battery. The defendant denies the allegations made against him. He asserts that none of the assaults occurred and contends the plaintiffs have lied about and fabricated the happening of those events.
The
cases have
been litigated on the narrow
factual
issue of whether any of the
assaults
asserted by the plaintiffs
occurred. However,
that
factual contest is substantial.
The parties have separately agreed damages in each matter. The defendant ’ s position is th at should either of the plaintiffs establish any of the
alleged
assa ults
occurred, no issue of causation will
arise, and that plaintiff will be entitled to the damages which have been agreed.
At the commencement of the hearing before me, I made orders that both sets of proceedings travel together and be tried at the same time, with evidence in each matter related to the question of the defendant ’ s liability to be evidence in the other.
In that context, the evidence led in each matter in relation to whether the defendant committed the alleged assaults
generally falls
into
four
categories of potential probative value for the other matter.
Firstly,
the
evidence in
each
matter is potentially relevant as evidence in the other
matter to corroborate or undermine allegations of fact.
Secondly, the evidence
in each matter
may go to the credit
of the parties or the reliability of their accounts for the purposes of the other matter.
Thirdly , whilst disputing the allegations of each plaintiff, the defendant accepts that evidence led in
each
matter in relation to the allegation s
that he sexually assaulted the plaintiff is admissible in the other matter ,
in accordance with s 97 of the
Evidence Act 1995
(NSW) ,
to prove that at the time in question the defendant had a tendency to have a state of mind, being a sexual interest in female children, and a tendency to
act on that interest and
engage in sexual conduct
toward
female children.
Fourthly , the defendant accepts the evidence in each matter, whilst contentious, is admissible
in the other matter
pursuant to s 98 of the
Evidence Act
to prove that the defendant sexually assaulted the plaintiff, because the similarities
in
the
event s
in question
in cluding
the
allegations of each plaintiff
are such that it is improbable they occurred coincidentally.
Given the inextricable
connection between the litigation in both sets of proceedings ,
any discussion of the facts and circumstances in one matter will inevitably involve a consideration of the facts and circumstances in the other.
Accordingly , it is appropriate that I deal with the claims of each plaintiff in one judgment.
The Plaintiffs’ Allegations
Allegations Made by AA
The plaintiff AA pleads
a number of
sexual assaults which can be summarised as follows
(references are to paragraph numbers in
AA ’ s
Amended Statement of Claim
(ASOC) ) :
Between 1979 and 1985, the plaintiff along with her family would frequently attend gatherings at the defendant ’ s home for the purpose of playing cards. The plaintiff would fall asleep in a bedroom and on nearly every occasion the defendant would sexually assault her, inserting his fingers into the plaintiff ’ s vagina
(par 3(a)).
At
one of these gatherings
between 1979 and 1985
the plaintiff
attempted to fall
asleep on a lounge
in the main living area of the defendant ’ s house.
Later in the evening the defendant assaulted the plaintiff by inserting his fingers into her vagina
(par 3(b)).
On one occasion between 1979 and 1985 the plaintiff attended a Christmas party at a neighbour ’ s house where the defendant was present, along with other families. The defendant
during the course of
the evening placed the plaintiff , who was wearing a swimming costume,
on his left kne e.
The defendant placed his fingers underneath the plaintiff ’ s
swimming costume
and inserted them into her vagina
(par 3(c)).
On more than one occasion between 1979 and 1985, the defendant was in his garage and as the plaintiff walked past ,
he directed her into the garage. The defendant directed the plaintiff to pose in a manner
similar to
the women depicted in pornographic material on the walls of the garage
(par 3(d)).
On more than one occasion, and on about a weekly basis between 1983 and 1985, as the plaintiff was walking home from school the defendant
directed the plaintiff to go to the rear of the garage
and
forced the plaintiff to perform oral sex on him
(par 3(e)) .
On one occasion
in about 1984
the defendant
directed the plaintiff to perform oral sex on him at the rear of his garage. While the plaintiff was performing oral sex the defendant ’ s
wife entered the garage and questioned the plaintiff as to what she was doing there
(par 3(f)).
In about 1985 the plaintiff was in the defendant ’ s garage. The defendant pointed to a small doorway in the garage and told the plaintiff he was going to have sexual intercourse with the plaintiff in that room
(par 3(g)).
In about 1985 the plaintiff was at the defendant ’ s home attending a gathering. She was in the
defendant ’ s
bedroom
in a bed
with two other children when the defendant entered
the bedroom
and directed the other girls to roll over. The defendant then molested the plaintiff and inserted his fingers into her vagina. Whilst doing so the defendant told the plaintiff he was going to have sex with her soon
(par 3(h)).
Allegations Made by BB
The plaintiff BB
also
pleads
various
sexual assaults against the defendant which can be summarised as follows
(again, references are to paragraph numbers in
BB ’ s
ASOC ):
Between February 1980 and October 1989, the plaintiff along with her family attended the defendant ’ s home for the purpose of playing cards
(par 5(a)) .
During the evening in about February 1980 the plaintiff fell asleep in a bedroom at the defendant ’ s home with another child. While in the bedroom, the defendant told the plaintiff to go to sleep, after which he took the other child ’ s hand and put it inside the front of his pants and onto his penis. The defendant then moved to where the plaintiff was sleeping, took her hand
and
placed it inside the front of his pants and
onto his penis . The defendant then told the plaintiff to
“ shut up ”
before leaving the room
(par s
5(b),
(c) and (d)) .
On multiple occasions between 1980 and 1984 the defendant touched the plaintiff ’ s breasts, buttocks and vagina
(par 5(e)).
On one occasion between 1980 and 1984 the plaintiff was walking past the defendant ’ s home when
she was
approached by the defendant who was intoxicated and put his arm around her, pulling her close to his body. The defendant directed the plaintiff to give him a hug, then slid his hand down the plaintiff ’ s body, touching her breasts and vagina on the outside of her clothing
(par s
5(f) and (g)).
On one occasion between 1980 and 19 84 the defendant directed the plaintiff to enter his garage and after
a period of time , as the plaintiff was about to leave, the defendant blocked her exit, such that the plaintiff ’ s back was against the wall, and the defendant touched the plaintiff ’ s vagina on the outside of her clothing. He then slid his hand to the top of the plaintiff ’ s head
(par s
5(h) and (i)) .
In about 1984 the plaintiff had been swimming at another child ’ s house and was walking home in her swimmers when she saw her father speaking with the defendant at the defendant ’ s home. The plaintiff joined her father and later, as they were leaving, the defendant was walking behind the plaintiff and swiped his left hand up the plaintiff ’ s legs, forcing his finger and the plaintiff ’ s swimming costume into her vagina
(par s
5(j) and (k)) .
Between 1984 and 1989 the plaintiff babysat the defendant ’ s children on numerous occasions after school ,
and on numerous occasions when the plaintiff went to leave the house after babysitting, the defendant directed her to give him a hug. While the defendant was hugging the plaintiff, the defendant grabbed her breast s
and slid his hand down her body, touching her buttocks and vagina
(par 5(l)) .
On about 30 October 1989, being the plaintiff ’ s fourteenth birthday, the plaintiff was walking past the defendant ’ s house wearing a new orange coloured crop top she had received as a gift. The defendant directed the plaintiff to come into his house as his wife had a birthday present for her. When the defendant approached the plaintiff, he put one arm around her and dragged her close to him. The defendant then
put
his other h and
on the plaintiff ’ s breasts, leaving a dirty, greasy stain on the new crop top
(par s
5(m), (n), (o)).
The Form of
the Plaintiffs’ Evidence
In
Chief
By consent, the evidence
in chief
of each plaintiff
included their evidence in chief
at the hearing of the defendant ’ s trial in respect of the criminal charges he faced for sexual assault and acts of indecency upon
them . The plaintiffs also relied upon statements provided to police detailing their allegations against the defendant.
Certificates of Conviction
Each plaintiff
also
tendered certificates of conviction under s 178 of the
Evidence Act
arising from
the criminal trial. In respect of AA, the defendant was convicted of seven counts of sexual assault, including acts of indecency, under ss 61 E( 1) and 61 D( 1) of the
Crimes Act 1900
(NSW). In respect of BB, the defendant was convicted of four counts of sexual assault, including acts of indecency, pursuant to ss 61 E( 1) and 76 of the
Crimes Act
.
It is common ground that
the certificates of conviction tendered against the defendant in respect of each plaintiff can be correlated with the allegations in the respective
statements of claim
as follows:
AA:
ASOC
Certificate of Conviction
Par 3(b)
Count 4
–
commit act of indecency between 13 October 1980 and 12 October 1986.
Par 3(c)
Count 5
–
commit act of indecency between 13 October 1980 and 12 October 1985.
Par 3(e)
Count 6
–
sexual assault (intercourse) between 13 October 1982 and 12 October 1986.
Par 3(e)
Count 7
–
sexual assault (intercourse) between 13 October 1982 and 12 October 1986.
Par 3(e)
Count 8
–
sexual assault (intercourse) between 13 October 1982 and 12 October 1986.
Par 3(f)
Count 10
–
sexual assault (intercourse) between 13 October 1984 and 12 October 1986.
Par 3(h)
Count 11
–
commit act of indecency between 13 October 1984 and 12 October 1986.
BB:
ASOC
Certificate of Conviction
Par 5(a)
–
(d)
Count 1
–
commit act of indecency between 1 January 1980 and 1 March 1980.
Par 5(f) and (g)
Count 2
–
commit act of indecency between 1 January 1980 and 30 October 1986.
Par 5(h) and (i)
Count 3
–
commit act of indecency between 1 January 1980 and 30 October 1986.
Par 5(m)
–
(o)
Count 12
–
commit act of indecency between 30 October 1988 and 30 October 1989.
For the reasons
provided
in
my judgment dated 18 June 2025 rejecting
the plaintiffs ’
pre-trial applications to strike out the Defence, I do not consider any estoppel arises from the convictions. However,
the
certificate s
of conviction provide prima facie evidence of the elements of
the offences involved
(
MTH v State of New South Wales
[2025] NSWCA 122 at [61]).
The Burden of Proof
The defendant
emphasises
the burden resting upon the plaintiffs to discharge the onus of proof to the civil standard and
contends , correctly, that it is not for
the defendant
to prove
t he events in question did not occur.
The defendant submits
that, in providing prima facie evidence,
the certificates of convict ion
impose
only
an evidentiary onus on him to
adduce
evidence that the convictions were incorre ct. The
defendant makes the point that
the certificates of conviction do not operate to reverse or shift the onus of proof resting on the plaintiffs.
The defendant argues the decision in
MTH
is distinguishable because in that case the certificates of conviction were not the subject of any direct challenge by the defendant, who was dead, whereas in the present case, the defendant has gone into evidence disputing the allegations made against him.
The defendant contends
the
evidence
is
such as to rebut the evidentiary onus created by the certificates of conviction, with the result that the Court could not be satisfied on the balance of probabilities that
any of
the alleged sexual assaults occurred.
The defendant
also
says there are serious credibility issues surrounding the evidence given by the plaintiffs, such that
their evidence
would not be accepted.
In
oral submissions, Mr O ’ Keefe SC, who appeared with Ms Young
and Mr Madden for
the plaintiffs, acknowledged the burden of proof always rests with the plaintiff s
and refined the plaintiffs ’
position to align with that of the defendant
on this issue , namely that the certificates of conviction cast only an evidentiary onus
on
the defendant.
In the course of
argument reference was
also
made to the decision in
Briginshaw
v
Briginshaw
(1938) 60 CLR 336; [1938] HCA 34, with the submission
advanced o n behalf of the defendant
that the allegations of sexual assault place a higher burden on the plaintiffs to prove the ma tters pleaded.
In my view, consistent with s 140 of the
Evidence Act
, the so called
Briginshaw
standard does not alter the civil standard
requiring
proof o n
the balance of probabilities. Rather, it requires regard to be had to the seriousness or gravity of the misconduct alleged
with
account
to be
taken of the fact that members of society
do not ordinarily engage in criminal conduct .
[1]
In determining the plaintiffs ’
claims and assessing the probability of the alleged conduct of the defendant, I have firmly in mind the fact that
the
allegations
involve very serious
criminal
offences falling well outside
the range of behaviour usually undertaken by members of society.
Accordingly, while
the burden on the plaintiffs
remains
the usual civil standar d, I proceed on the basis that the Court will not lightly make a finding that the defendant committed the acts alleged against him.
I also bear in mind
the fact that the defendant from the very outset, and in all the
forms
that these allegations have been advanced against him, has denied th e
allegations and maintained his innocence.
Circumstances Leading to the Criminal Prosecution of the Defendant
and Commencement of These Proceedings
The alleged assaults occurred
against a background
where , in a suburban location,
a number of
families , which included the families of AA, BB, and the defendant,
had formed what has been termed a
“ friendship group ” . They would socialise by having card nights at each other ’ s houses. There would be barbeques and other food, and alcohol would be consumed by the adults. The children would play, and in houses with a pool, they would swim. The adults would continue playing cards into the evening and some of the children would sleep in bedrooms or on lounges until their parents were ready to leave.
There would be rotation of those hosting the card night s. They
would often be hosted by the defendant and his wife, who had three children.
As well as card nights, there would
also
be street parties and Christmas parties.
Otherwise, there was interaction between families with children playing and spending time at the homes of their friends, and some children babysitting for other families.
In understanding the path
to
this litigation, it is appropriate to start with the way in which the allegations were first ventilated with authorities.
In around 2020 BB ,
who by then had experienced
significant
turmoil in her life, including
periods of incarceration, disclosed to her parole officer and an intelligence officer connected with the Department of Corrective Services that she had been sexually assaulted as a ch ild.
The matter was then reported to police who interviewed BB and commenced the process of investigating her allegations
against the defendant .
In the course of
th at
investigation, AA
was interviewed and
provided a statement to police in September 2020 in which she detailed numerous episodes of sexual assault
perpetrated by the defendant
upon her .
In due course, the defendant came to trial and in December 2023 was convicted of the offences outlined earlier.
These proceedings were commenced by AA on 27 February 2024 and BB on 29 May 2024.
Approach
to the Determination of the Plaintiffs’ Claims
There is no orderly path through the factual contest. The
allegations concern events spanning
a number of
years . The re are overlapping facts and issues and, in advancing their positions in
relati on to
certain events , the parties rely upon conclusions
and inferences
to be drawn from other events, some pleaded, some not. The task is complicated by the time which has passed since the alleged assaults and
the effect that has had on memories and the ability to plot an accurate chronology of relevant events . Credit looms large
in the determination of the factual dispute given the polarised position of the parties.
In order to
achieve a cohesive analysis, I
will
deal with the plaintiffs ’
claims separately ,
addressin g
common and overlapping
issues along the way .
Preliminary
Observations as to the Defendant’s Credit
As will be seen in the reasons which follow, I have some reservations in relation to the defendant ’ s credit. However, one
particular
matter
bearing on
the defendant ’ s
credit warrants specific consideration at the outset.
The oral evidence commenced on 1 8
June 2025 with the calling of AA. On that day the defendant, who remains incarcerated following his convictions for sexually assaulting the plaintiffs, did not attend Court because of logistical difficulties with transport, the reasons for which are not relevant for present purposes. As a result, the defendant participated by audio-visual link (AVL) from prison.
I was advised that AA was content to give evidence in Court whereas BB would likely need the accommodation of evidence by AVL from the remote witness room in the court house , given her emotional state.
In the circumstances, I determined it to be appropriate that the AVL screen showing the defendant be adjusted so the defendant was not visible during AA ’ s evidence
so as to
avoid any distress that may cause her. However, the defendant would be able to see and hear all that was happening, thereby ensuring he was not disadvantaged in any way.
Mr O ’ Keefe SC then called AA. As AA approached the witness box,
and as recorded on the transcript,
the defendant could be clearly heard over the AVL to say,
“ what a bitch ” .
As a result,
I requested AA
to
leave the courtroom and wait outside, which she did. I then had the defendant put on screen. Both Senior Counsel for the defendant and Senior Counsel for the plaintiffs confirmed they had heard the defendant call AA
“ a bitch ” , as I had done. The following exchange then occurred between me and the defendant:
“HIS HONOUR: Mr MacDonald, can you see me?
DEFENDANT: Yes, I can, sir.
HIS HONOUR: Can you hear me?
DEFENDANT: Yes.
HIS HONOUR: As the witness was approaching the witness box just now you were audibly heard in court by everyone present to say something to the effect of, ‘What a bitch’. Is that right?
DEFENDANT: No. I didn’t say that.
HIS HONOUR: You didn’t say that?
DEFENDANT: No, not – no, not ‘bitch’.
HIS HONOUR: I heard you say it. All counsel at the bar table heard you say it.
DEFENDANT: Well, I’m sorry.
HIS HONOUR: Do you deny to me that you said it?
DEFENDANT: I probably said ‘bitch’, but I didn’t say ‘What a bitch”.
HIS HONOUR: What did you probably say, given that it was 30 –
DEFENDANT: I don’t remember.
HIS HONOUR: Given that it was 30 seconds ago, what did you probably say?
DEFENDANT: I probably just said ‘bitch’, that’s all.
HIS HONOUR: Do you understand that you are, by audio visual link, appearing in my courtroom?
DEFENDANT: Yes, I do, sir.
HIS HONOUR: Do you understand that the witness who just approached the witness box was called in this court to give evidence?
DEFENDANT: Yes.
HIS HONOUR: She’s entitled to be treated with respect and dignity, and with the protection of this court.
DEFENDANT: Yes, sir. Yes, I do.
HIS HONOUR:
Referring to her as a bitch is unacceptable.
DEFENDANT: I didn’t mean it in that way. Sorry.
HIS HONOUR: I beg your pardon?
DEFENDANT: I said I didn’t mean it in that way. I said I’m sorry.
HIS HONOUR: What way did you mean it?
DEFENDANT: I didn’t mean it at all.
HIS HONOUR: You said ‘bitch’ and you didn’t mean to say it?
DEFENDANT: Yeah. All right.
HIS HONOUR: No, answer my question. Do you tell me that you said ‘bitch’, but you didn’t mean to utter those words?
DEFENDANT: I didn’t mean to say it. No, I did not.
HIS HONOUR: Mr MacDonald, if I have any more behaviour like that in my courtroom you’ll be charged with contempt. Do you understand that?
DEFENDANT: Yes, sir.
HIS HONOUR: You will act with dignity and decorum.
DEFENDANT: Yes, sir.
HIS HONOUR: You will respect this legal process.
DEFENDANT: Yes.
HIS HONOUR: And you will be silent on audio visual link unless you are spoken to. Do you understand that?
DEFENDANT: Yes, I do.
HIS HONOUR: Very good. Go off screen, please.” (Tcpt
67.25 – 69.14)
There are
a number of
aspects of that exchange which I find troubling. Firstly, the defendant denied to me that he called AA
“ a bitch ” .
The word had just been spoken
and
e veryone had heard it. Yet the defendant simply lied about using that word. When confronted with the fact
that counsel and I
had heard him say it, the defendant
pivoted and
said he probably did call
AA
“ a bitch ”
but
then
maintained he
did not say
“ what a bitch ” .
Whilst I do not
understand
the purpose of
the
distinction
made by the defendant , that
too was
simply
untrue .
The defendant
could not have forgotten
what he said
in the few seconds between
saying
those words and being challenged about it. The defendant then
shifted his position again
saying
he
“ didn ’ t
mean it that way ”
and then that he did not mean to say it at all.
Whilst it was not acceptable
on any view of
things
for the defendant
to say what he did, conceivably it might have been said in ignorance that
he
would be picked up by the microphone, or it may have slipped out in the stress of the occasion.
What troubles me is that the defendant was prepared to
blatantly
lie
about his condu ct, I can only assume,
to avoid being accountable for it.
Of course,
it does
not
follow that
the defendant is lying when he denies the plaintiffs ’
allegations
about his conduct , however in my view it
reflects adversely
on his credit and results in the need for
some
caution when considering the veracity of his evidence in relation to the issues in contest.
AA’s
Claim
Consideration of the Allegations
Made
by AA
Frequent Digital Penetration
As outlined earlier, AA alleges that on numerous occasions
between 1979 and 1985
the defendant
inserted
his fingers into her vagina when she was in a bedroom or on a lounge at his home while there were card nights or other social gatherings going o n.
The defendant denie d
having committed
those
assaults. He also
denied ever
going
into the bedroom s
of his home when
girls were in there.
In his evidence before me, the defendant acknowledged the plaintiffs used to go into the master bedroom of his home and could have slept there. However, he said he never went near the bedrooms when
the plaintiffs were
in there . He said
his wife had told him he was not allowed
in
the bedrooms when
girls were there,
and no males were allowed to be in
the bedroom
unless they were the parents of the children.
The defendant was challenged
in cross-examination
as to why he had
not previously
mentioned
this
prohibition ,
as it
supports
his account that he did not perpetrate
the
assaults.
When asked why he had not told the police about
it
when first interviewed,
the defendant ’ s
initial response was,
“ why should I ” . Despite further questioning on that subject and acknowledging it was
“ fair enough ”
to suggest it was something he would have told the police when he had the opportunity, the defendant provided no real explanation as to why he
di d not do so .
[2]
I found that aspect of the defendant ’ s evidence to
be
generally
unsatisfactory
and to have
the
distinct
flavour
of opportunism
in an
attempt to
deflect
suggestions that he had gone into the bedroo m. Frankly,
given the defendant ’ s demeanour and approach to those questions, I was drawn to the conclusion that he was not being truthful.
I also
consider
it curious that when asked about another child,
(who I will refer to as
“ CC ” )
who was said
by AA to have been
in the bed with
her
and BB on one of these evenings, the defendant was adamant
CC
was never in the
bed and
always s lept
on the floor
in the loungeroom
with her sister . I
find it
hard
to believe that
after
some thing like
40 year s ,
the defendant
is able to
recall with such precision the sleeping arrangements of these young girls.
If he can in fact recall those arrangements
so definitively , it suggests a particular interest
and enduring memory of
where particular girls were sleeping at the ti me.
Either way,
that evidence
does not assist his defence of the plaintiffs ’
allegations.
In any event,
at least initially,
the defendant ’ s position was
fir m;
he never went into the bedrooms when AA and BB were sleeping there.
However, when directed to his record of interview with police in April 2 022,
the defendant acknowledged he had told the police he might have gone into the bedroom but maintained he did not touch
the girls .
The defendant
then modified his
evidence before me
to say he could not remember ,
but he was 99% sure he had not gone in there.
The defendant ’ s denials of ever going into the bedroom s
result in polarised positions between
his account and the accounts
given by the plaintiffs who
both
say
the defendant
went into the bedrooms when they were in there alone. As I have observed, the defendant ’ s
initial
dogmatic
position of
never
entering the bedroom
yielded to
some internal inconsiste ncy
when tested.
The plaintiffs called two witnesses who
went
directly
to
this issue. Firstly, there is Witness One (W1) who was a close school friend of AA at the time of these events and has gone on to be a
life-long
friend of h ers.
I consider W1 ’ s evidence to be
important on this and other
issues
in the case
to which I will come. Although
W1
appeared by AVL, there was clear definition and, so far as one can judge these things in any setting, I was impressed with her
evidence and
the consistency of her account.
AA has consistently, both in her evidence at the criminal trial and
in
her statements
to police , given an account of an event
involving W1 . She describes how on one
particular occasion
she had been asked to
babysit for the MacDonalds
at night
and
was scared of
going
there
alone . At AA ’ s request W1 went with her. When it
got late ,
AA and W1 went to bed in one of the children ’ s bedrooms. They were still awake when the defendant arrived home, and AA says she warned W1 that if the defendant came into the room, they should pretend they were asleep.
AA
describe d
how the defendant did in fact come into the room and stood between the beds
on
which the girls were sleeping. He then lifted the covers off each of them and stayed
for
a short time before replacing
the covers
and leaving the r oom.
W 1
corroborated AA ’ s account of that event. She described how
when the defendant arrived home
AA panicked and told her to stay still and close her eyes.
W1
said she felt scared and was lying in bed under the covers when the defendant came into the room. She was wearing a tee-shirt and underpants and the defendant
lifted up
the covers, which she thought was
only
a sheet, and just stood there. She said she was not sure what he was doing
and
recalls he smelled of alcohol , something which is common with descriptions
of the defendant
given by both AA and BB . After a while,
the defendant
put the sheet down but, as
W1
recalled it,
he
stayed in the room for some time.
She described the experience as quite scary .
The defendant denied that account out of hand when it was put to him in cross-examination.
He denied W1 had ever stayed overnight at his home.
For reasons
already outlined and
others
to which I will come in ,
I
formed
an adverse view of the defendant ’ s credit .
I formed quite the opposite view of W1.
I accept W1 ’ s evidence in relation to this event. Her responses to challenges in cross-examination
and her demeanour
in answering questions generally
gave me the clear impression she was giving
the Court an
honest account.
If the defendant, contrary to his firm assertions, did go into the bedrooms when the girls were there, it speaks not only of opportunity but
supports
the
account
of AA and BB
that they were
sexually
assaulted, there being no suggestion by the defendant that he might have gone into the
bed room for some innocent purpos e.
The other witness
relevant to this issue
was Witness Two (W2),
BB ’ s
brother , who
has not had a lot to do with BB in the years since their childhood , only
see ing
her very intermittently.
W2
also gave evidence by AVL. As with W1, t his did not affect my ability to assess his evidence .
W2
gave an account that
during
one of the card nights at the defendant ’ s home he had gone looking for AA and BB to get them to come outside and p lay
with the rest of the
children . He described walking down the hallway and
hearing
voices coming out of the master bedroom, the door of which was ajar. He said he walked into the room and saw AA and BB lying on either side of the defendant in bed. There was a doona or a blanket covering them.
W2 said the defendant
told
him he was spending time with the gir ls
and would be out to spend some time with the boys later. W2 said ,
with that, he walked out and went to play with the other
children .
In cross-examination, W2 was squarely challenged in relation to
his
evidence, and it was put to him the first time he ever recorded what he had seen was when he was interviewed by police in 2022.
W2
freely agreed with that
proposition
and said it was just a childhood memory. When he was challenged about
giving
false evidence
in order to
support his sister,
W2 ’ s
response was
direct ,
he was
“ just telling the truth of what I saw when I was a child ”
( Tcpt
225.45) .
The account given by W2 is
also
important
evid ence.
It is
notable
that
the
event
he described
is not
specifically
recounted by either AA or BB.
However,
I do not think
that
undermines
W2 ’ s
evid ence.
We are
after all
talking about
events which occurred
decades
ago and
children
who
very young
at the time.
The plaintiffs recount being assaulted by the defendant whilst in bed at his home.
It is to be expected that memories will have faded over time. Differences in, or absence of, recollection of some details
by the plaintiffs
does not, of itself, undermine the integrity of core
memories.
In W2 ’ s case the core
memory
is that the defendant was in bed with AA and BB.
If, as
put in cross-examination , W2 was lying to support his sister in these proceedings, and there w as
collusion between them, he could have
tailored his evidence to
more closely
align with
that given by BB .
I accept W2 ’ s account that
he saw the defendant in bed with the two girls.
The fact that he went back to play with the other children and took it no further is entirely consistent with the innocence of childhood.
It is true that the defendant ’ s conduct
in lying in bed with two young girls with the door ajar was brazen, however ,
as will be
discussed in the reasons
to come ,
brazen conduct is a characteristic
of the
defendant ’ s
behaviour
in other
sexual
assaults
I
am satisfied
he
committed .
Ultimately in submissions the defendant drew attention to the absence of eyewitnesses and contemporaneous complaint as undermining AA ’ s allegations
and
in some respects making it a contest of word against word.
However, the
evidence
of W1 and W2
that the defendant was in the bedroom alone with the children is
corroborating
evidence
undermining
the defendant ’ s
trenchant denial s .
In my view , that evidence significantly strengthens
AA ’ s
word in the
“ word against word ”
contest to which the defendant refers.
In defence of these allegations, the
defendant argues that one of the
allegations
of digital penetration
in particular
is
undermined by a lack of corroborative and contemporaneous complaint , to the extent
that it
infects the reliability of AA ’ s allegations generally.
In her statement to police and in her evidence at the defendant ’ s criminal trial in respect of this incident, AA gave an account of being in bed
at the
defendant ’ s house during
one of the card nights. She believed she was in bed with BB and
CC .
She said the defendant came into the room and asked the other girls to roll over so he could have a word with AA. The defendant, as AA recalled it, then digitally penetrated her and said,
“ I am going to have sex with you soon ” .
The details of this
incident
were
not directly explored with AA or BB in the
cross-examination
before me.
AA ’ s evidence at the criminal
t rial
was that she believed she talked to the other girls following this
event
but did not remember telling them what the defendant had done, although she did recall telling the girls the defendant said he was going to have sex with her.
The submission was made on behalf of the defendant that:
“This vague recollection of speaking to the other girls ,
without any clear memory of discussing the actual alleged digital penetration,
is inconsistent with what would be expected if such a
traumatic
incident had occurred in the presence of two other children”.
That attack
on this evidence
rises no higher than the proposition that AA ’ s recollection of what was discussed with the other girls was vague and unclear. In my view, that
is unremarkable in circumstances where AA was recalling discussions from her childhood so long after they occurred. However,
as distinct from
the terms of
her discussion with the other girls, AA ’ s recollection of the alleged assault was not vague.
In any event, I do not accept that what was or was not said by a young child
to other children
about abuse of the type
described
by AA
is
open to the description of
“ what would be expected ” .
Who knows how a child would react in those circumstances.
One can expect
that ,
if AA was assaulted as she described, she
would
have been frightened ,
embarrassed
and confused.
She would undoubtably
have been emotionally traumatised . In those circumstances she may well have not
told the other girls what the defendant did
to her, or
equally
she may have. Either response
is
plausible . In my view, the defendant gets no traction from this point in the defence of
AA ’ s claim .
Otherwise, the defendant argues it is striking this allegation
was
not corroborated by either BB or
CC .
CC was not called to give evidence. No inference is sought, nor do I consider
any inference
arises from her absence in the circumstances. Nonetheless, I am not assisted by any evidence from CC.
It is true that BB does not give evidence of this specific event. However, as will be discussed in more detail in relation to BB ’ s allegations, she does give evidence of an incident where AA was assaulted in the bed they were sharing. When one factors in the potential for fragmented, faded and conflated memories in
children
so young at the time, in
circumstances where
the issue
was not
explored, the
lack
of direct corroboration
does not
preclude a finding that the assault described by AA occurred.
In support of his position , the defendant
also c ontends there was a lack of opportunity to commit the a lleged a cts of
digital
penetration. On the contrary,
t he
evidence establishes that
the environment
on these card nights
was informal, and the defendant
had opportunity to go into the bedrooms where the children were when , for example,
he would leave the adults
to go to the bathroom
or
get a drink .
[3]
Additionally, the
defendant
submitted
that
“ substantial objective doubts ”
in respect of the allegations of forced oral sex
should
be brought to bear against
the acceptance of
AA ’ s allegations of digital penetration. I do not accept
these
so-called
objective
doubts about AA ’ s reliability in relation to
the
allegations
of
forced
oral sex. Rather,
for the reasons
which will be explained in more detail later in the judgment , I am satisfied the evidence establishes
the defendant forced
AA
to perform oral sex
on
a number of
occasions.
That
evidence establishes a tendency on the part of the defendant to a sexual interest in young girls and a tendency to act on that interest.
In my view, that
tendency is significantly probative of whether the defendant committed the various acts of digital penetration alleged by AA.
I
am satisfied
on the balance of probabilities
that , contrary to his denials,
the defendant
entered
the bedrooms
when AA and BB were in there.
The evidence of W1 and W2 also establishes to my satisfaction that the defendant was demonstrating behaviour which was consistent with a sexual interest in young girls.
As with all the allegations made by the plaintiffs, I have
taken into account
the fact the defendant has consistently maintained his innocence from the time the allegations were first raised with him.
Balancing all the evidence and bearing
in mind the
evidence of tendency to which I referred, the
adverse impression I formed in relation to the defendant ’ s evidence about the alleged prohibition on entering the bedrooms when girls were present
and his credit generally,
the implication that the defendant ’ s denials of entering the bedroom s
was
to conceal the alleged assaults, my impression of AA as a witness of truth, and the corroboration provided by W1 and W2, I am satisfied and find that
between 1979 and 1985
the defendant sexually assaulted AA on numerous occasions at his home by inserting his fingers into her vagina.
Assault at the Christmas
Party
AA pleads , albeit within a broad date range,
a specific occasion of sexual assault after the defendant placed her on his knee at a Christmas party
when
AA was walking past him in her swimming costume.
AA contends that whilst
she was sitting on his knee
the defendant inserted
his fingers into her vagina, she says, for a period that felt like about three minutes.
The defendant contends this event never occurred and calls in aid of his position two propositions, namely, the fact that the family in question did not have a pool at the relevant time, and the inherent implausibility that he would do such a thing in open view
of ,
and
proximity to ,
other adults.
The
written s ubmissions
provided
on behalf of the defendant
fairly
concede
that , when recounting this event,
A A has maintained a consistent account
that
these
particular neighbours
had
a
swimming
pool.
Those
submissions
also acknowledge
the defendant ’ s evidence on the issue of whether those neighbours had a pool has been contradictory and undermines his credibility. In particular, the defendant ’ s account to police when first interviewed was consistent with the neighbours in question having a pool, whereas his evidence in Court was inconsistent and contradictory.
Although the defendant argues the state of the evidence is such that no firm view could be reached on when
the se
neighbours obtained their pool, there i s
in my view
no reas on n ot to accept
AA ’ s
account on this issue
in the face of the defendant ’ s acknowledged unsatisfactory evidence on
the point .
As
note d,
the evidence of AA was that the incident felt like it lasted three minutes. I consider that to be
unlikely
however
I accept that i f it occurred, abuse of that kind may have felt like it lasted a long time.
Were this the only incident of which AA complained, with no supporting peripheral evidence, there may be
cause
to
doubt
the plausibility of the assault occurring.
However, there
is
evidence
of tendency ,
to which I have already referred which strongly supports the conclusion that the defendant
acted on h is sexual interest in
young girls.
That evidence
provides persuasive support for
truth of
the
allegations
in question.
The fact
the act
was
committed at a gathering,
of itself ,
does not exclude the reliability of
AA ’ s
allegation. It was,
in the circumstances
described by
AA ,
something that could have been concealed
from view . On the conclusions I have reached in relation to digital penetration in other circumstances and those to which I will come in relation to forced oral sex, the defendant was brazen in committing acts of
sexual a buse.
In all the circumstances,
notwithstanding
th e defendant ’ s denials,
I
accept AA ’ s account
and
find
on
the
balance
of probabilities
that the defendant sexually assaulted
her
by digital penetration at the Christmas party, broadly in the way she describes .
Forced Oral Sex and Related Allegations
It was AA ’ s allegations of forced oral sex upon which the defendant focussed his most vigorous arguments that AA ’ s credibility was
destroyed
and her allegations were not to be believed .
As I have noted, it
was argued this lack of credibility permeated the other allegations made by AA.
The arguments mounted on behalf of the defendant span
a number of
aspects of the evidence.
For the reasons I will now explain, I consider the allegations that the defendant forced AA to perform oral sex are made out . R ather than
undermining
AA ’ s
credibility, the evidence associated with those allegati ons
s upports my
impression that she was a
truthful
witness.
AA ’ s account
of the defendant forcing her to perform oral sex all involve assaults which occurred in the defendant ’ s garage.
AA ’ s evidence was that
her younger brother was friends with the defendant ’ s son, and she
would often have to go to the defendant ’ s
house
to fetch her brother to come home for din ner.
AA
described how
the defendant would call her into the garage as she walked past the driveway
of the house.
She recalled he had a lot of posters from pornographic magazines, and calendars on the walls of the garage
displaying
naked wom en. She said one time the defendant said to her,
“ You ’ ll
be a porn star and in magazines one day if I teach you how to pose ” .
AA
gave evidence
of
occasions
when
the defendant would encourage
her
to adopt certain poses shown in the photographs on his garage walls.
Against that background,
AA
recounted
trying to avoid
going
to the defendant ’ s house to collect her brother and
avoid
walking past the driveway.
In her statement to police, AA described the defendant ’ s behaviour as evolving and said that at the age of 11 to 12 the defendant took her to the area of his work bench in the garage and forced her to perform oral sex. She said that whilst she did not appreciate the concept at the time,
she observed
the defendant ’ s penis was circumcised. She also said that on one occasion the defendant told her to
“ suck
his penis
like a straw ”
and on another told her to
“ never use your teeth ”
and
“ just suck it like a straw ” .
Those
particular
aspects
of the evidence are relevant to matters
discussed
later .
AA described the occasion pleaded when the defendant ’ s wife came into the garage while she was being forced to perform oral sex, although
AA
did
not think the defendant ’ s wife saw what was going o n. The defendant ’ s wife did not give evidence
before me.
While I draw no adverse inference from her absence in the circumstances, I am not assisted by her evidence in areas of controversy upon which she could comment.
The defendant
contends
the allegations made by AA in relation to being forced to enter
his
garage to perform oral sex are improbable for
a number of
reasons.
The defendant
argued
that in the criminal trial AA stated the defendant commenced forcing her to perform oral sex after she commenced
high school
in 1985 , in circumstances where the defendant would call AA into his garage as she walked home from school.
The defendant
contended
it would be unsound
in the circumstances
to conclude, as pleaded, that forced oral sex
could have
occurred before 1985.
In
support of that proposition, t he defendant
submits
that before
attending high school in 1985,
AA had no occasion to walk
home from school
along
Smith Street (a pseudonym) , where the defendant lived .
As such, it
was put
that any assertion AA was walking past the defendant ’ s house prior to the calendar year 1985 is plainly wrong.
The defendant submits that
whether it be primary school or high school, AA would have been walking along
Smith Street
prior to 4pm and he would not have been home from work by then . Accordingly, it was argued the defendant
could not have called
AA
into his garage
on her way home from school .
The defendant
also argues it is damning to A A ’ s case
that he did not own a white van in 1985 and indeed did not own a white van until the 1990s. The significance
of this
submission centres
around AA ’ s evidence that she recalled the defendant ’ s white van being present when he would call her into his garage.
There are
a number of
aspects of
these
submissions to unpack. Firstly, they appear to me to ignore the evidence given by AA in the criminal trial
that
forced oral sex occurred before she attended high school. She said
s he was first called into the defendant ’ s ga rage
and forced to perform oral sex
when she was 10 or 11 years
old .
This was not said to have been when AA was walking home from school. Rather,
school
was mentioned in
the following context , as
AA
described the evolution and frequency of being forced to perform oral sex :
“ …
especially as I got older, because I used to have to walk past his house going to high school. It felt like he called me into the garage every day. I’m sure it wasn’t, but that’s what it felt like to me. I’d panic every time I saw his car there as I rounded the corner to walk home…”
In terms of the submission that it would be unsound to conclude AA walked past the defendant ’ s house on
Smith Street
when she was in primary school,
AA
gave
unimpugned
evidence
in cross-examination before me
directly to the contrary:
“Q. You see, if you’re going to the primary
school
you don’t walk past Mr Mac Donald’s house, do you?
A. We did sometimes, yes.
Q. To go home?
A. Yes” (Tcpt
106.40-106.45)
AA gave the following evidence about being forced to perform oral sex when she was in high school:
“Q.
So
you say that these acts of forced oral sex happened in high school, is that right?
A. Oral sex?
Q. Yes?
A. My recollection was it was when I was in high school.
Q. You’d walk home and you’d see the white van and you’d say, ‘Well here’s trouble’. Is that effectively what you’re
saying,
that the white van would cause you concern?
A. 100%, yes.
Q. What kind of white van was it?
A. It was like a Toyota Hilux.
Q. A Hilux is –
A. The white van?
Q. A
Hiace?
A.
Hiace, sorry, yes.
Q. You meant say
Hiace ? To be clear, you meant to say
Hiace, not Hilux?
A. I don’t know—
Q. Is it something that’s got a tray on the back of it or is it something that’s got a cabin?
A. No, it’s like a van, like a V-dub thing.
Q. All right, yes. Thank you. One of those vans with a sliding door on the side?
A.
Yes
and a big boot at the back.
Q. You remember seeing that parked where?
A. On the street or in his driveway.
Q. What I want to suggest to you, ma’am, is that Mr MacDonald didn’t own a white van in 1985. …
A. He did.” (Tcpt
106.47-107.40).
It is clear that AA
recalled the episodes of forced oral sex occurring during her high school years.
However ,
as
discussed ,
the evidence is that the first episode of forced oral sex occurred
before that
and escalated from there.
In my view, no
inconsistency has been established in relation to AA ’ s evidence as to when and where these assaults occurre d, and the defendant ’ s submission that it would be unsound to conclude forced oral sex occurred prior to 1985 is misplaced.
Otherwise,
a s noted ,
a n
integral part of the defendant ’ s
argument , said to be damning of AA ’ s allegations, is the
contention
that
he
did not own a white van at the relevant time ,
and
as a result ,
AA ’ s
allegations
should be considered unrel iable.
The
defendant
argues AA has always been insistent that
he
owned a white van at the time
he was forcing her to perform oral sex . She said so
during the course of
a recorded conversation with the defendant when she confronted him using a listening device
on 17 May 2021
as part of the police investigation
and also
said so in her evid ence
before me .
The defendant ’ s point is a simple one. AA says the defendant ’ s white van was present at the time
the defendant called her into the garage when she was walking home from school.
As such, on AA ’ s account, the
white van
was synonymous with and telegraphed the defendant ’ s presence in the garage. However,
it is said
as the
defendant
did not
in fact
own a white van at the time,
AA ’ s
evidence is
undermined to the
point that the allegations of forced oral sex would
simply
not be accepted.
On this issue, the
defendant gave evidence of having
a number of
vehicles in the 1980s. He had
a
HQ-Holden panel van which was red with a black stripe, the registered owner of which was said to have been his father. He had a Holden Sandman panel van. He had a 1963 Holden station wagon, which was apparently red with a white top. He had a white Datsun 180B. He had a VK
Commodore station wagon which was white. He said he drove a white van in the late
1980s and
had two white Ford
Econovans
in the 1990s.
It was
squarely
put to
AA in cross-examination
that she was lying about
the defendant having
a white van during the period when she
alleges
she
was forced to perform oral sex
when walking home from school . It was
initially
put to AA that in 1985 the defendant
in fact
had a work vehicle that was a Toyota Hilux . T hat was corrected to being a Toyota one-tonne
ute .
The
proposition was eventually supplemented with the information that the
one-tonne
ute
was white.
The evidence does not
address
whether the white
ute
which the defendant apparently drove in 1985 was a single or dual
cab.
AA ’ s evidence , as
recited earlier ,
leaves open to question whether she really knew the make and configuration of this white van. She initially called it a Hilux. She then accepted the cross-examiner ’ s
reference to
a
Hiace
but then responded that she did not know whether she meant
Hiace
or Hilux, describing it as
“ like a van, like a V-dub thing
[ with a sliding door
on the side]
and a big boot at the back ” .
It
might be thought u nusual to describe a van as having a
“ boot ” , which
normally connotes
a
self-contained
separate
part of
a
vehicle.
Otherwise, the
transport records
produced under subpoena
and tendered on this issue
are not comprehensive. It was
acknowledged
in submissions
on behalf of the defendant that
those records
are not reliable for the purposes of determining vehicle ownership in the 1980s.
The records
also do not
assist in relation to
vehicles the defendant may have been driving which
were owned by his
employer at the time,
as appears
may
have been
the case with the white
ute
he was driving in 1985.
Ultimately , one is reliant on the defendant ’ s evidence that he did not own a white van at the time, rather than there being any objective corroboration of that fact.
It is
notable
that in giving her evidence in the criminal trial, in a
different context, BB described the defendant having a panel van which would be parked on the street and signalled the fact he was home from work.
There are
a number of
possibilities
on the issue of whether the defendant drove a white van at the time,
including AA being correct, or AA not appreciating the difference between a white van and a white
ute , or AA
simply
misremembering. It is
also
possible, as the defendant submits, that AA is not telling the tr uth
about it .
In
the end result ,
the evidence on the white van issue is inconclusive.
In
the
circumstances
I am not satisfied AA ’ s evidence of the defendant having a white van at the time undermines or adversely impacts on her allegations of forced oral sex.
Otherwise, the
defendant , relying on a process of deduction,
sub mits
he would not have been home from work when AA was walking home from school, so that her allegations of forced oral sex are
not to be believed .
The defendant argues one can a ssume
when the plaintiff was in primary school
she would have finished school at the usual time, which is said to be 3pm to 3:30pm, and
so if
she walked
along
Smith Street , it would have been
around 4pm.
There is no evidence before me
in relation to those assumptions .
It was argued on behalf of the defendant that AA ’ s evidence about high school
was that school finished at 3:15pm, following which she would catch the
bus which
would be a
10 or 15 minute
drive, meaning she would, after walking down
Smith Street , have arrived home
around
3:30pm to 3:40pm. If AA missed the first bus and caught the second bus, on the same hypothesis,
it is
submitted she
would have arrived home
at 3:40pm to 3:50pm.
It was submitted
the defendant could not have been home before 4pm.
This is because
the defendant ’ s evidence
would have
him knocking off at 3:30pm to
4pm
at the relevant time . With
45 minutes to get home, he would
not
have arrived
home
until
4:15pm to 4:45pm.
At the end of the day,
I put little store on
these
estimates of time . In cross-examination it was put to AA that the defendant
may
not get home until as late as 6:30pm
or
later, which she rejected.
The
proposition
was
then
put
that
at best
the defendant
was not home until 4pm or 4:30pm .
This was followed with questions suggesting that two days a week, in the event the defendant arrived home at 4pm, he would take his sons to soccer train ing. The import of those questions is that, notwithstanding work commitments, the defendant could have been home at 4pm.
Th e defendant was asked questions on this topic by
police in the record of interview conducted with him on 20 April 2022. At that time, the
defendant said :
“Well
I never knocked ‘til 3.30 … And I worked in
[redacted]
… I’ve got to get home from
[redacted]
… Or from wherever I’m working at 3.30 I knock off that’s the time I knock off at work. That’s not the time I get home.”
There then followed this exchange:
“Q420 Yeah
so it would take you a good twenty minutes or more to get home from 3.30.
A Yeah.
Q421 So
we’re talking 4 o’clock.
A Yeah.”
It is apparent that since giving the police interview, the defendant ’ s account of his knock-off time has evolved from 3:30pm to 3:30pm - 4p m and the time to drive home has increased from 20 minutes
or more
to 45 minutes.
Notably, when
cross-examined about travel times
AA said that if she caught the second bus from high school in the afternoon, she would get home
“ more towards four o ’ clock ”
( Tcpt
104.20).
I observe that
Witness Five was called in AA ’ s cas e.
He was an electrician who worked with the defendant
commen c ing, he believed,
in 1981 until about 1983. His evidence did not assist one way or the other as to when the defendant was likely to have been home from work
at the time in question.
I am mindful of the evidence given by W1 that she would walk AA home and that the defendant
“ was pretty much there every time we walked past. The garage door was up and he was there ”
( Tcpt
217.30). As discussed earlier, W1 impressed me as a reliable witness. I did not have any reason to doubt her evidence on this
topic .
At the end of the day, the
evidence
as to timing is far from precise. Given the variables involved
and the propositions put , I do not accept the defendant ’ s position that it was not possible he was at home when AA was walking home from schoo l. On all the evidence I accept AA ’ s account , corroborated by W1,
that the defendant was often home when she was walking home from school.
The
defendant
argues
it is
in any eve nt
unlikely AA walked along
Smith Street
alone,
submitting
there were
a number of
children and siblings who would have walked along
Smith Street
to reach their homes. It is also said to be contrary to the evidence of W1 who, in the evidence referred to above, described how she would walk with AA along
Smith Street .
On this issue, AA gave evidence that friends were not always present when she walked down
Smith Street .
That is consistent with W1 ’ s evidence that other kids were not always around.
Otherwise,
the evidence of W1 falls
short of suggesting
she
always
accompanied AA when she
walked down
Smith Street .
It was put to AA in cross-examination that there was another route home from the bus stop and she could have walked along
Pitt Street (a pseudonym) , thereby avoiding
Smith Street
and the defendant ’ s home
altogether. AA a ccepted she could have done that but said she did not go via
Pitt Street
because it was very, very hilly. However, she did say she would take
Pitt
Street
if she saw the defendant driving past.
In submissions the
defendant pose d
the question
as to why AA would continue walking along
Smith Street
rather than take an alternative route
when , on her account,
she knew the defendant
would
likely
be
in his garage, or why she did not only walk along
Smith Street
if
accompanied by a fri end.
When
tested
in cross-examination
AA said she
did
not take
Pitt Street
rather than
Smith Street ,
“ because I was a child ”
( Tcpt
116.25).
Pressed on this, AA agreed she was 12, was familiar with the neighbourhood, and was aware she had a choice about which way to walk. It might also be contended
AA
was under no compulsion to enter the defendant ’ s garage
when he called her .
These are weighty matters to which I have given careful consideration. However, one must be careful to isolate
attributes
which comes with age
and experience
when considering the actions and decisions of a child confronted,
o n AA ’ s case, with acts of abuse
escalating
over time in circumstances of a
significant
power imbalance .
One can only speculate how a child would react in those circumstances.
It is apparent, on AA ’ s account, the defendant was often but not always home. If AA saw him driving past, she would take
Pitt Street .
Otherwise ,
she went ,
what W1 described as the
“ fast way ” ,
which took her past the defendant ’ s house.
AA ’ s
strategy, as described in the criminal trial, was to hug the fence line on the opposite side of the road, thinking the defendant would not see her,
though she said,
“ it just seems like he saw me all the time ” .
In her statement to police AA described it this way:
“[61] … I would walk up
[Green
Street (a pseudonym)] and turn into
[Smith Street], and I would usually see Kenneth’s car, which was a white coloured van, parked either on the street, in his driveway, or inside his garage.
[62] Every
time I turned into his street my feelings would be influenced by whether his car was home or not. If it was not there, I would feel a sigh of relief because I felt like I was going to get home safely, but if I saw his car I would get a feeling of dread because I felt like, ‘Here we go again’, like I knew he was going to see me and call me over to his garage. My heart would start pounding
heavily and I would get a knot in my stomach out of a fear he was going to assault me again.
[63] I
developed some protective measures in the hope I might be able to make it past his house safely but
more often than not , my protective measures failed. I felt like Kenneth knew what time I would be walking past and that he planned on being out the front of his house
to catch me.
[64] I
would try to walk home with my brother, [redacted] as he was two years older than me, but he would usually leave me and do his own things after getting off the bus. He may have walked home with [BB’s oldest brother] as
they were pretty much the same age.
[65] As
I walked past Kenneth’s house I would always walk on the opposite side of the street to his house and I would always try to walk as closely to my neighbour’s fence as I could. In retrospect I now realise this was not going to make any difference as to whether he would see me or not, but at the time, as a child, it made sense to me as it was one of the few options I had
in regard to
protecting myself from him.
[66] I
would get excited if I managed to get a lift home from somebody but that rarely happened. This would normally be only if someone from the neighbourhood was driving past and as I trusted pretty much everyone else from the neighbourhood, I would accept the offer.”
W1 gave corroborative evidence that AA would walk
“ very close to the other side of the road …
as close as possible at times, especially as she moved into an older age bracket ”
( Tcpt
217.39 - 217.41).
As AA recognised in her
statement ,
this was not a particularly effective strategy ,
but for a child it was how AA said she tried to avoid the predator she described the defendant to be.
I consider that to be a plausible explanation in the circumstances.
As to why she just did not keep walking when the defendant calle d
her, AA said at the criminal trial:
“He would call me [my nickname]. Everyone in the neighbourhood called me [my nickname]. …
Anyway – so it was – it would be like a ‘[nickname] – [nickname] – [nickname] – [nickname]’. And then it would be
a ‘[my first name]’
in a - a real cranky – if I was avoiding him. But once that crankiness came out, I caved and would walk over and go in. …”
That account is consistent with the defendant exploiting the power imbalance and AA
“ caving ”
and complying with the demands of an adult.
The fact that there
was
no compulsion and AA could have walked on is an adult construct
o f
the solution to the problem being faced by a child and does not , in my view, necessarily undermine AA ’ s evidence on the point.
As AA ’ s statement to police described, she eventually mustered the strength to ignore the defendant ’ s calls.
In the circumstances, I accept that AA ’ s failure to take more effective measures to protect herself from the defendant
can be
explained by
her
young age and
na ïve
approach to the defendant ’ s predatory conduct.
Relevant to my conclusions on this issue is what I consider to be
potent evidence
from W1 and AA ’ s husband, Witness Three (W3),
supporting AA ’ s allegations that the defendant forced
her
to perform oral sex.
W1 described how when she and AA were in year eight at school and around 14 years of age,
AA
told her the defendant had forced her to perform oral sex.
W1
recounted that conversation in
a way
I consider consistent with
language
used by young teenagers.
W1 said she was shocked when AA told her what the defendant had been doing, and she encouraged AA to speak to her mother about it. However, AA told her she had spoken to her mother who had pretty much fobbed her off, telling her,
“ Don ’ t be silly about it ” .
Again, whilst I do not disregard the possibility that W1 may have been lying to help her friend, she was carefully tested on her account of things and ,
in my view, was
a credible witness. In the circumstances, I accept W1 ’ s account of what AA told her all those years ago.
Whilst I accept that W1 was told by AA that the defendant
forced
her
to perform oral sex, that of course does not establish that the defendant
in fact
did what he was accused of. Nonetheless, the contemporaneous complaint by AA is tangible evidence that he did.
In giving her evidence AA also recounted a complaint to her mother when she was around 12
in the following terms:
“My mum came to pick me up from Ken’s bedroom one evening and I said that Ken wanted to have sex with me
some day
soon. And it was late at night. Whether they had been drinking I’m not sure. But it was – my mother
actually said, ‘Don’t be silly’” (Tcpt
99.48-99.50).
That account is consistent with the evidence of W1 that AA told her about having unsuccessfully tried to tell her mother about what was happening. It is also broadly consistent with evidence given by BB , which will be discussed later,
that AA had unsuccessfully complained to her mother about the defendant.
AA ’ s mother was not called to give evidence but a statement she provided to police was tendered by the defendant. In that statement AA ’ s mother said she had no recollection of AA ever expressing concerns about the defendant when she was younger. However, AA ’ s mother does recount speaking to AA after BB ’ s disclosure in 2020 and asking her why she had never told her about
th e defendant ’ s behaviour.
AA ’ s mother acknowledged AA said she had tried to tell her
but was just told by her mother ,
“ don ’ t be silly ” . Significantly in my view, when told about this by AA in 2020, AA ’ s mother
apparently
did not suggest to AA that she had not made the complaint, nor did AA ’ s mother suggest in her statement to police that AA did not complain to her
when
a child as she said she did, only that she could not recall that complaint.
It is entirely understandable
in my view
that, if it occurred, the defendant ’ s threat of forcing AA to have sex with him would have been frightening and confusing for her. As AA described in her evidence in the criminal trial, that threat
“ petrified ”
her. If AA ’ s complaint was dismissed by AA ’ s mother as being silly, it is equally understandable, as she described in her police statement, that AA would have felt devastated and of the view that complaints would not be taken seriously.
The defendant argues it is inconceivable that AA ’ s mother cannot recall the complaint
or
would not have done something about the complaint if made and
would have continued to have friendly relations with the defendant in the aftermath of the complaint.
I accept that such a complaint would be expected to create alarm in any reasonable parent. However, that assumes it was comprehended and taken seriously. I do not know whether ,
and if so to what extent,
AA ’ s mother was alive to the risk of child abuse by those in a position of trust . It can be accepted that societal awareness of sexual abuse of children has increased in the years since and, for example, as discussed
later, BB ’ s mother never contemplated the defendant might be abusing her daughter.
The
way in which the
complaint
was delivered , the circumstances in which it was made
in the bedroom late at night , and the state of mind of AA ’ s mother at the time could impact on whether the complaint was comprehended as serious or was just
regarded as
a child saying something silly. The latter is possible ,
is consistent with AA ’ s account and
is not inconsistent with
her mother ’ s statement.
Whilst a relevant factor,
I do not consider AA ’ s evidence of unactioned complaint is fatal to her credibility. Indeed, as I have said, it would explain why no further complaint was made
by her .
AA ’ s husband, W3, gave evidence that he and AA had known each other since primary school. AA was one year above him. They started dating when W3 was 16 and in year 10, have been together since, and remain happily married.
W3 gave evidence that when he was about 17 and AA was nearly 18, they were on one occasion having intimate sexual relations when AA reacted abruptly and told him to stop. As he described it, AA was
“ not angry but pretty much shut down ”
( Tcpt
229.22-229.23) . W3, understandably, wanted to know what he had done. Eventually, AA told him the defendant had sexually abused her and that
W 3 ’ s
actions had triggered a memory and caused her reaction. W3 says AA told him the defendant had told her to suck his penis
“ like a lollipop ”
( Tcpt
229.31) .
This is similar but not identical to AA ’ s evidence that the defendant had told her to suck his penis like a straw. That difference, and the way the evidence was given, suggests to me that the evidence of AA and W3 was not rehearsed.
AA told W3 it had all be dealt with, that her parents had dealt with it, and that it was something they did not talk about anymore. On W3 ’ s evidence, this appears to have had the desired effect and shut down any further discussion on the subject .
The defendant argues that as well as her conduct at the time of the alleged assaults, the conduct of AA and W3 in their adult years demonstrates she is fabricating the allegations she makes against him.
Here the defendant points to the evidence that years after the alleged assaults the defendant and his wife travelled overseas to Britain with AA ’ s parents and stayed with AA and her husband who were living in London at the time and expecting their first child.
The defendant argues this would not have been tolerated by AA and her husband if the defendant had sexually abused her in the way alleged.
I accept it appears anomalous that AA and her husband would allow the defendant to stay in their home after what she says he had done to her.
However, the
following evidence given by W3
provides an explanation for why that occurred:
“Q. Do you recall Mr MacDonald travelling to England and staying at your house in England at some time when you were living there?
A. Yeah, AA was pregnant. Her mother and father had decided to come over, and I can’t remember how long before or whatever, but it was a few months we were living, living in London with – we
actually had
friends in the house. And AA’s mother, [redacted], had rung and said the MacDonalds are coming, and you’re they’re to stay at your – yeah, and we’re going to stay there. And AA sort of went – I wasn’t on the conversation for that, but she told me, and I just looked at her as if, ‘Are you okay?’ And that’s pretty much it. They stayed for probably, it was either, it was either one or two nights, it wasn’t, it wasn’t a long period. But it was just at the birth of our, our daughter.
Q. So, you didn’t think about confronting Mr MacDonald at that time about what you’d been told?
A. No, we, we, we’d never spoken about it since, and obviously she was visibly, visibly upset, and determined not to speak about it again. It had been dealt with. Just respect for her, and obviously she was pregnant at the time. I, I just, I’ve just gauged by her reaction and – not to speak.” (Tcpt
229.41-230.08).
W3
was an impressive witness . He answered questions in a straightforward and apparently honest way. He did not prevaricate or obfuscate when asked questions in cross-examination,
ultimately
leaving me comfortable in the conclusion that AA did complain to him, when she was about 18, about the defendant forcing her to perform oral sex. That complaint was consistent with the events she has described in these proceedings.
My impression of W3
was
that he is caring and respectful of AA. The fact that he did not take steps to prevent the defendant from staying with them in London is consistent with him respecting AA ’ s wishes and the fact he had been told years before the matter had been dealt with by her parents. I found that evidence similarly believable.
[4]
The evidence given by W3 about the defendant and his wife staying with them in London is consistent with AA ’ s evidence on that subject.
AA described how the defendant and his wife stayed in a spare room in their house, having been invited to do so by her parents who were travelling with them. AA said she did not attempt to have her mother intervene and stop the defendant from staying with them because it would have broken up the friendship, there having at that stage been no public allegations about the defendant having sexually abused AA.
That evidence was plausib l e in my view.
It is
possible , as put to him in cross-examination, that W3 was not telling the truth and has been lying ever since his first statement to police. This
would
broaden the group of people
contended to be
lying to
AA, BB,
W1, W2, and W3, with
all
knowi ngly
lying to poli ce
and all giving knowingly and calculated dishonest evidence before me. Whilst
Briginshaw
is
not
on point here as the defendant bears no onus, it is apt to observe that
this
level of dishonesty is
not consistent with the conduct
of
most members of the community.
If one accepts, as I do, that AA told W3 when they were teenagers that the defendant
had sexually abused her and
forced her to perform oral sex, that does not
necessarily
prove the
complaint was genuine . However, the complaint was relatively contemporaneous and the nature and circumstances of the complaint, as described by W3, are consistent with AA ’ s account.
In my view, a
relevant
factor
in relation to the
veracity of AA ’ s
allegations of
forced oral sex is a diagram of the defendant ’ s garage she prepared in October 2020 after
being spoken to by
police. On AA ’ s account, each
act of
forced
oral sex occurred in
that
garage. In his evidence the defendant said he never asked AA to come into his garage, which was his domain, where he had a work bench and a beer fridge. He told the police when interviewed he could not recall any time AA had been in the garage.
I consider it significant that
the diagram of the garage AA prepared more than 35 years after the events in question, whilst not to scale, was accepted by the defendant to be accurate
( Tcpt
317.07-317.17) . To my mind, that
is consistent with
AA ha ving
spent some time in
the
garage , which
is
now
etched in her memory.
In considering evidence touching on the veracity of competing accounts, it wi ll be recalled that AA gave an account that the defendant, when she was about 12 or 13 years old, pointed to the doorway in the garage which led to the under-house area, telling her he was going to have sex with her
there
when she was old enough.
The defendant denied this
occurred.
When he gave evidence
in
chief, the defendant was asked about the area through that doorway under the house, clearly being evidence
directed at
addressing
AA ’ s
allegation
that
he
said he
intended to
have sex
with
her under there.
The defendant
said it was
“ just, just virgin land. That ’ s all. It ’ s
–
it was
where the house had been dug out and dug out for the garage. It was a bit of
a
storage area for me .
T hat ’ s all. I used to brew my beer under there ”
( Tcpt
249.05
–
249.10).
The defendant
said that kids ’
toys were stored under there , along with
some cables and lights .
The
clear
purpose
of the defendant ’ s evidence was
to establish
that the area
under the house
was not conducive to having sex, thus supporting the proposition that AA ’ s evidence was made up.
In
cross-examination the defendant was directed to his evidence that the ground under the house was sloping . He
conceded that some of that area was in fact flat and tiled and that the evidence he gave about it being just natural ,
sloping ground was wr ong.
He also agreed he had given that evidence because he wan ted
the Court
to
believe he would never suggest having sex there because it was broken, sloped ground ( Tcpt
300.4 0 ).
Whether he intended to make that admission
or just acknowledge the question
could be open to argument. Nonetheless,
I am satisfied
h owever one looks at it, the defendant attempted to paint a distorted picture of the area under the house to suggest the account given by AA was not true. This, in my view, is not the evidence of an honest witness.
As
noted earlier,
AA ’ s evidence was that
the defendant was circumcised, something
the defendant
acknowledged
to be
true.
AA was not asked any questions about how she came by that knowle dge.
When
challenged
by AA
( wh ile
she was
wearing a listening device
as part of the police investigation )
as to how she could have known this intimate detail , the defendant said she may have known he was circumcised because she and BB looked through a gate when he and
“ Uncle Jack ”
were swimming nude. I assume the defendant ’ s hypothesis is that, from
some
distance, as a child, AA was able to discern
and retain
this intimate detail. That theory in my view is far-fetched.
In all the circumstances,
I do not consider
AA ’ s evidence
as to the defendant ’ s circumcised penis
to be
a lucky guess . I n my view, it is
far more likely
AA can describe
this
level of
detail
because she was subjected to the assaults she has
described .
As outlined, another issue which has percolated in relation to the allegations of abuse that took place in the defendant ’ s garage is the allegation
by AA that the defendant had pictures of naked women from pornographic magazines and calendars on the garage wall and would encourage
her
to imitate the poses in those pictures.
In her initial statement to police AA described
“ twenty to thirty pictures of naked women ” . At the criminal trial
she
described it as
“ lots of pornographic pictures ”
and
“ pictures everywhere of [naked] women ” .
When challenged by AA while she was wearing
the
listening device, the defendant denied any pornographic pictures and said he had some calendars on the walls .
Before me the defendant denied having pictures of semi-naked women on the garage wall s , whereas W1 gave evidence of being shocked by the pictures of naked women in the garage . She described
breasts, bikini bottoms and feeling
“ pretty grossed out ”
( Tcpt
216.44) . She did not agree there were only one or two pictures of naked women, saying she clearly remembered
“ a few ”
( Tcpt
216.50) .
In the statement tendered into evidence in the defendant ’ s case, AA ’ s mother said the defendant
“ had at least half a dozen posters, such as centrefolds of semi-naked women from magazines posted up on the walls of his garage ” .
The weight of the evidence supports the proposition that, contrary to his evidence to me, the defendant had
a number of
pictures of naked or semi-naked women on the walls of his garage. To that extent, the evidence is more consistent with the evidence of AA .
Whilst
the estimate in
AA ’ s
statement of 20
to 30 posters seems overstated, her reference to
“ lots ”
of pictures is generally consistent with the evidence of
those
who
commented on the subj ect, other than the defendant.
I do not draw the conclusion that AA ’ s estimate
of 20 to 30 pictures
was an attempt to
mislead
as opposed to an
impressionistic observation. However, accepting as I do that there were
a number of
pictures of naked
and semi-naked
women on the garage wall s , I have concluded the defendant ’ s evidence on the point was not truthful.
This, of itself, does not establish that
the defendant
encouraged AA to adopt poses imitating the women in the pictures , which
comes down to whether I accept AA ’ s
account
over the defendant ’ s
evidence
on the point. At the end of the day, neither account is
directly
corroborated.
On balance
however , the behaviour complained of is consistent with
the
evidence of
tendency
to which I have referred.
The defendant ’ s credit is such that I treat his evidence with some care, whereas I have no such concern with AA ’ s evidence. The defendant ’ s evidence as to the
number and
nature of the pictures on the wall
is
contrary to the
conclusions I have drawn
on the evidence
and is consistent with an attempt to conceal the behaviour of which AA complains. On balance I
am satisfied the
defendant probably did
encourage AA to
imitate
the poses of women in th e
pictures
on the wall of his garage
in the
way
she described .
The evidence
and issues
I have discussed
at length under
this heading of the judgment
are
wide ranging and touch both directly and indirectly on whether
AA ’ s
allegations
that the defendant forced her to
p erform oral sex
are
made out.
For the reasons I have explained
when addressing
th e se various
matter s , I am persuaded that AA
has given a truthful account,
corroborated as it is by
the evidence of
W1 and W3.
Accordingly, I find that on
a number of
occasions between approximately 1983 and 1985 the defendant forced AA to perform oral sex.
Other Allegations Made by AA
The defendant points to an
unpleaded
allegation of sexual assault
made
by AA,
as being weak and unreliable. Strictly speaking, as it does not form part of AA ’ s case, it is an allegation which is not relevant to my disposition of AA ’ s claim. However, it
could
go to AA ’ s credit and the reliability of her allegations generally.
The allegation in question is described in AA ’ s statement to police in September 2020 as her
“ first bad memory ”
of the defendant which she dates
at
1980 when she was approximately eight years old. AA ’ s recollection is that her mother and father had gone to Singapore on a holiday. She recalled her brothers had stayed at the
defendant ’ s house and s he
stayed with her grandparents, however on the night before her parents returned, s he
believed she
stayed at the defendant ’ s house. AA recalled, amongst vague memories ,
going to the airport with the defendant to pick up her parents
and
having a sense that something
had
happened. She recalls the defendant looking at her at the airport as if to say,
“ Don ’ t you dare ”
or
“ Don ’ t tell ” . She recalls crying and her mother asking her was what wrong. She described ongoing fear of the defendant after that and then recounted later recollectio ns of
digital penetration described earlier.
In her next statement to police in November 2023, AA described having flashbacks following her earlier statement, and specifically being quite young, about seven or eight years of age.
She described an incident where the defendant
got her out of the bath to dry her
and a
vivid recollection of the defendant
kneeling down ,
with his eyes at her eye level.
The defendant
then brushed a hand across
AA ’ s
vagina, and she recalls pain as the defendant inserted a finger into her vagina. AA describes jolting back and freezing as a result.
In piecing things together, AA formed the view that this flashback related to the time when she stayed
at the defendant ’ s
house
and believes it relates to the feelings and emotional upset at the airport she had described earlier.
In cross-examination before me, AA accepted she was not 100% sure if she had stayed overnight at the
defendant ’ s house while her parents were overseas. It is clear AA ’ s memory of this event differs from
her other memories of assaults by the defendant in that
it involves
reconstruction on her p art.
It was put to AA that she had not stayed overnight at the MacDonald ’ s when her parents were overseas, she had not had the flashbacks she described and had not been
distressed
at the airport.
However, the statement of AA ’ s mother provided to police , which was tendered by the defendant,
describes AA running to her parents at the airport and being very upset and crying. Her mother put that down to the fact AA had missed them.
It is possible AA, in the process of reconstruction she describes, is misremembering or conflating eviden ce. It is also possible she is making it up, as contended by the defendant.
Unlike
the pleaded allegations
of sexual assault , AA concedes uncertainty
about this allegation
and
accepts
that the foundation is not from direct recollection of the event.
Based on the matters which have informed my disposition of the pleaded allegations,
I accept that AA is recalling the event she describes . However,
I cannot be s atisfied
that
it happened
or happened the way she said. It is consistent that, as AA describes in her second statement, the police investigation had triggered other memories. It is
also
possible ,
in the circumstances, that those memories may not be
reliable .
I do not
consider
this evidence reflects adversely on AA ’ s credit. Rather, in the context of the various sexual assaults committed by the defendant, it is consistent with being a
product
of the emotional turmoil AA has experienced.
Additional Attacks on AA’s Credit
As well as the attack s
on the
veracity and
reliability of AA ’ s allegations already canvassed, the defendant raises
a number of
other
specific matters which it is
contended demonstrate AA was not an honest witness.
I have considered those
submissions
in the process of weighing the evidence and the reliability of AA ’ s account
and arriving at
the
conclusions
detailed
above .
In particular, the defendant submits AA has a motive to lie. Initially it is said AA was motivated to lie to support her childhood friend BB after learning that BB had made allegations against the defendant. The defendant
argues
an additional motive
then
presented itself to AA, namely financial
gain
by way of
the
damages
she seeks
in these proceedings.
The defendant
contends
that the circumstances in which AA learned
through her mother
of the complaints made by BB
in circumstances where
both
her mother and BB ’ s
mother had discussed
the matter
between themselves ,
a nd
there were then discussions about it
with AA, poisons the reliability of AA ’ s initial support of BB.
It is argued AA ’ s ruthlessness and aggression demonstrated in the listening device recordings betray a determination to assist BB.
The defendant
also
arg ues
the timeline related to the commencement of proceedings demonstrate s
that AA did not give truthful evidence.
I will deal with this
submission
first as it
may have some general relevance
to the other attacks on AA ’ s credit
presently under consideration .
In terms of timeline,
the
verdict was delivered in the defendant ’ s trial on 6 December
2023
and sentencing
occurred on 23 February 202 4.
AA said her first contact with her
solicitors
in relation to the matter was at the reading of her
Victim Impact Statement (VIS)
as part of the sentencing proceedings which were before the Court on 23 February 2024.
It is an agreed fact that AA approached her
solicitors
in relation to bringing a claim for damages on 13 February 2024. It is said on behalf of the defendant that AA ’ s evidence was demonstrably false because she
had
approached her lawyers in respect of the claim for damages 10 days before sentencing and the
reading of her Statement.
Accordingly , it
is
argued her first approach was not in relation to her VIS as she said but related to her claim for damages.
Presumabl y
if
AA
approached her
solicitors
in order to
obtain assistance with her
VIS ,
she
did so before the day on which she
read
it in Court on 23 February 2024.
Conceivably, it
might have been
on
13 February when she
also
approached the solicitors in respect of a claim for damages, or it might have been sometime between 13 February and 23 February when the
Statement
was read.
One can accept that
AA ’ s
evidence
in relation
to the date and purpose of her approach to her solicitors
is inaccurate.
However,
that inaccuracy
does not
necessarily reflect adversely on her credit. On any view of it, by the time AA approached her solicitors the defendant had been convicted of serious acts of sexual assault
against her .
Any
discrepancy
as to the timing and purpose of AA ’ s approach to her
solicitors
is a matter of days .
Importantly
AA did not deny that she approached the solicitors to pursue a claim for damages .
In my view, nothing
turns on this
point .
There is a difference between giving evidence shown to be inaccurate and giving knowingly dishonest
evidence .
AA ’ s evidence on this
subject
did not suggest she was being evasive or dishonest as to her recollections of why she consulted her solicitors.
In the circumstances,
I do not consider the evidence in question was
adverse
to AA ’ s credit. Rather, I consider the submission
at best to highlight an inconsequential inaccuracy.
The submission is
also
made that the timeline demonstrates AA to have been actively pursuing financial compensation through civil proceedings when sentencing was still pending, contradicting her claims that money was not a motivating factor.
This submission focusses on AA ’ s evidence that she was not concerned about money and that financial enrichment was
“ absolutely not ”
her motive.
In cross-examination AA was asked these questions:
“Q. To put it squarely, I’m suggesting to you that all your allegations are
fabricated?
A. No.
Q. Your motive initially was to support BB. What do you say to that?
A. Initially, yes, it was.
Q. Later your motive was to enrich yourself, wasn’t it?
A. Sorry?
Q. You wanted to get some money out of it, didn’t you?
A. Absolutely not.
Q. You’re claiming damages in these proceedings, aren’t you?
A. Yes.” (Tcpt
100.50 – 101.14)
The questions asked of AA started with the proposition that her allegations were fabricated,
then turned to her motives for making the allegations . AA ’ s response,
“ Absolutely not ” ,
was given in
the
context
of
her motives .
It is entirely consistent with AA ’ s evidence that her motive for making the allegations was not to get money. Her motive for bringing proceedings however is a different matter . In that context, s he freely acknowledged she was claiming damages.
AA
was later asked these questions:
“Q. Your purpose here today is that you would like the Court to make orders that you receive a significant sum of money? Is that right?
A. I’m not concerned about the money.
Q. You’re not concerned about money. Why are you here?
A. Because Ken MacDonald has indecently assaulted me.
Q. That’s why you were –
A. And you want to prove that.
Q. Didn’t you already prove that to the satisfaction of members of a jury?
A. Yes.
Q. Why are you here now? That’s over, isn’t it? The criminal trial is over and done with, isn’t it?
A. Well, then we wouldn’t have to be here.
Q. Why are you here if it’s done and dusted?
A. Because you, you’ve insisted that we do this all over again.
Q. You sought damages, you’re the plaintiff –
A. The criminal side of things –
Q. -- aren’t you? You sought the damages, didn’t you?
A. Yes.” (Tcpt
101. 41 – 102.15)
Again, AA ’ s evidence does not
disavow the fact she is claiming damages from the defendant. Her statement that she was not concerned about the money
can be seen as evidence
given in the context of
a response to
her
“ purpose here today ” . I see nothing inconsistent in AA ’ s statement that her purpose in giving evidence was, in the face of the defendant ’ s denials, to establish the defendant sexually assaulted her.
In my view, p roperly understood, AA ’ s evidence that she was
not concerned about the money
is not inconsistent with the fact that
she
i s seeking damages.
Contrary to the submissions put against her ,
I
have not formed
any
view adverse
to
AA ’ s
credit from her
explanation of the factors which motivated her
when
giving her evidence.
The defendant ’ s theory behind AA ’ s motivation to lie starts with the proposition that when she
learnt
BB had made allegations of sexual assault, she decided to make up allegations that the defendant
also
sexually assaulted h er
in order
to
support BB.
In my view, this theory
falls away when tested.
Both AA and BB gave evidence at the criminal trial that after BB left home when she was about 14 or 15, they bumped into each other two or three times over the next few years and then had not seen each other prior to BB reporting the matter to police. On the evidence before me,
I am satisfied
there was no
opportunity and thus no basis to contend that AA and BB colluded in AA making the allegations she has made against the defendant.
In cross-examination before me, AA agreed that BB ’ s mother had run g
AA ’ s mother about the
assaults
alleged by BB ,
and AA ’ s mother then spoke to AA and asked if the defendant had ever done anything to her. AA told her mother he had.
This is consistent with the statement of AA ’ s mother dated 20 October 2020 .
There is nothing in the evidence before me
as to
the conversations between AA, her mother and father, and BB ’ s parents to support
suggestions of
collusion or undermine the reliability of AA ’ s account. Indeed, the evidence is that AA ’ s response to her mother immediately upon being asked in 2020 was that the defendant had assaulted her.
If, as is put by the defendant, it was AA ’ s intention to lie and support BB, it would have been a much simpler process to simply corroborate
BB ’ s account of surrounding circumstances and say
BB had complained to her about the assaults
at the time .
I f the
object was simply to support BB, i t seems to be a very high-risk strategy
in advancing a lie ,
for AA to
invent
a number of
detailed fal se allegations , including the fact that AA had complained to her mother at the time.
On the defendant ’ s theory
it goes further,
AA then enlisted the support of W1 and her husband, W3
to lie in support of her allegations.
One is led to ask why AA would go to such lengths if the defendant had never done anything to her or to BB. The
foreseeable
end point of
the contended
dishonesty would be an innocent man, against whom there was no
axe to grind , going to jail. I n the circumstances , I
consider
it implausible that AA made up serial assau lts
to support BB in pursuing her allegations against the defendant.
The proposition that AA was later motivated to lie because of the prospect of financial gain seems to me logically to have no role to play in
establishing
that
AA ma de
up these allegations. On the defendant ’ s theory, this litigation is a by-product
rather than the cause
of AA ’ s deception. It provides no assistance in understanding her motive to lie
to police
in the first place.
I accept that the listening device recordings
demonstrate
emotion
and perhaps
aggression on AA ’ s part. That is not inconsistent with a person for the first time confronting the perpetrator of childhood sexual abuse. Indeed, I consider AA ’ s demeanour and the substance of what she said to the defendant in those recordings to be consistent with the abuse she alleges.
In all the circumstances,
I reject the defendant ’ s
additional
attack s
on AA ’ s credit.
Disposition of AA’s Claim
It follows from the above reasons that AA has made out the pleaded allegations of sexual assault. Accordingly, on the premise upon which the matter was litigated, AA is entitled to the damages which
have been
agreed in the sum of $1,898,701.
BB’s
Claim
Attack on BB’s Credit
It is appropriate that I deal at the outset with the defendant ’ s very vigorous attack on BB ’ s credibility. It is submitted BB was
“ an appalling witness who the Court would find to be abundantly lacking in credit ” . It is contended
on behalf of the defendant that BB repeatedly lied when cross-examined about her criminal history and demonstrated a pattern of deception which should be considered to undermine the allegations she makes against the defendant. The submission culminated in the proposition that
“ the Court will have great difficulty accepting anything that came out of the mouth of plaintiff BB unless it is a matter not disputed between the parties ” .
I observe
that, from the outset of the cross-examination, BB conceded she had been convicted of offences involving dishonestly obtaining money and that she had been incarcerated twice.
BB admitted she had on one occasion when stopped for a drug test lied to police when she told them she had not taken drugs
“ for ages ” . She admitted she had not told the truth
about her drug taking
to avoid going to court. She also admitted she probably told police on a separate occasion she did not realise she had been disqualified from driving, whereas she possibly did know that and was trying to avoid a penalty. She ultimately went to jail for the offence of driving whilst disqualified.
It can be seen th at
i n
giving her evidence about these things, BB
acknowledged
past indiscretions, including not telling the truth.
However, BB did dispute her guilt in relation to details of certain
other
crimes she has been convicted of. I do not know whether this is because she was trying to minimise the implications of her involvement in those crimes, however that theory does not sit comfortably with BB ’ s acknowledgment of other offences involving dishonesty. Of course, this was not the occasion to relitigate prior criminal charges, which is where the cross-examination ultimately went. For example, BB was cross-examined about collecting a parcel from a post office and whether she was collecting it on behalf of a friend or in fact stealing the parcel. BB delivered the parcel to her friend and although she ultimately pleaded guilty to an offence related to stealing the parcel, she said she did so on legal advice to avoid a longer period of detention.
In like fashion, the cross-examination spanned other offences
of
which BB was convic ted
but now disputed guilt.
A submission was made on behalf of the defendant that BB attempted to minimise her involvement in criminal activity, notwithstanding having pleaded guilty and having failed to appeal.
In a sense BB was powerless to resist those challenges because she
was not in a position to
adduce evidence as to the propriety of those convictions, nor would I have allowed her to
do so ,
as it would have taken the trial down an irrelevant path .
At the end of the day, I accept BB ’ s criminal history provides prima facie evidence BB committed the offences for which she was convicted.
No evidence has been adduced to displace th at
prima-facie position .
I also accept that, as she admitted, BB has in the past lied on occasion to achieve some advantage. I cannot know in those matters where she disputes guilt whether
BB ’ s
dispute is genuine. More to the point however, it is
in my view
something of
a sterile exercise. The defendant obtained the concession that BB has been dishonest in the past. The attempt to paint her as somebody who cannot be believed other than where there is absolute corroboration, in my view, is overstating the outcome of the cross-examination.
Having carefully considered the breadth of the cross-examination on credit, I treat BB ’ s evidence with caution because of her acknowledged dishonesty in prior circumstances, however I do not start from the proposition suggested by the defendant that her credit is such that nothing is to be believed unless corroborated.
Furthering the attack on BB ’ s credit, the
defendant argues BB has
“ multiple and compelling motives to fabricate ”
her allegations against the defendant.
In support of that p osition
the
defendant places some emphasis on the
proposition
that BB first complained to members of her family a few years before the matter came to the attention of police but did not provide any details about what had allegedly occurred to her.
Under cross-examination BB gave evidence that after she moved out of home at about the age of 16, she had a conversation with her mother when they were sitting on the front
veranda h . BB could not remember specific details
of the conversation
but said,
“ it would ’ ve been about touching because she was
wanting to know if there was intercourse. Like, whether
–
and I said,
‘ No ’” . BB said her mother did not have much of a reaction to that
( Tcpt
191.25 - 191.35).
BB gave evidence that at that time her life was
difficult,
and she had a young child
who
was probably six to twelve months old when she spoke to her mother.
It was put to BB that she had
told her mother a false story
to try and blame the defendant for all that was wrong with her life at the time , which she denied . This then led to questions about why BB was not living with her mother and father, to which she responded that they had taken her to court and given her away.
BB ’ s mother gave evidence that BB first told her the defendant had behaved inappropriately
“ probably 10 or 15 years ago, approximately ”
( Tcpt
326.30).
BB ’ s mother said BB next complained to her at about the time the police became involved. She agreed BB had a difficult life at the time she first complained to her.
In cross-examination, BB ’ s mother said after BB had told her of the defendant ’ s behaviour in about 2015, she and her late husband ceased their friendship with the defendant. She said she did that because she believed what her daughter had told her.
BB ’ s mother did not give any evidence to gainsay BB ’ s account that in their conversation when she was about 16, she told her mother about the defendant ’ s touching. There is thus no evidence from BB ’ s mother to make good the defendant ’ s submission that
BB
had provided no detail
to her
of the assaults perpetrated by the defendant.
BB gave evidence she had told her brother, W2, what had happened to her prior to 2020, she thought around 2017 or 2018 ( Tcpt
195. 18 ).
Asked for detail, BB said,
“ I just told him what had, what, what had happened and that I ’ d wanted my dad to know ”
( Tcpt
195.25). She said she had told W2
“ all the things that we ’ ve just discussed ” . The cross-examiner put to BB that
when she spoke to her brother ,
she was completely incoherent, which she described as an
“ absolute lie ”
( Tcpt
196.0 6 ). It was also put to BB that she did not tell W2 any of the details of what the defendant had done to her. This too she denied.
W2 was called to give evidence in
BB ’ s
case. He
gave no evidence
in relation to whether and what BB told him
in
complaints
about
by the defendant prior to the matter coming to the attention of the police.
He was not asked whether BB was incoherent
at the time .
In the circumstances,
I do not accept the submission that BB did not tell her brother
at that time
what the defendant had done. She said she did, and no evidence
was advanced
to contradict
her
on that point.
I do not accept it is plausible that BB would be seeking to
falsely
blame the defendant for what has been described as her difficult life when she was 16 years old.
I f
the defendant
had done nothing to
BB , as he professes,
there is no apparent reason
why
she would
blame him for
the difficulties she was experiencing with her life .
Rather, if BB was fabricating allegations against the defendant for some ulterior purpose or financial motive, then one would expect her to have pursued those purposes when she was 15 or 16 and first aired complaints with her family.
In attacking BB ’ s credit, t he defendant also focusses on an issue in relation to whether BB ’ s parents
“ gave her away ”
when she was around 15
as she contended , or whether she was removed from their custody by court order and her parents were upset about that.
There was some disparity in the evidence given on that issue.
These are no doubt matters of interpretation in relation to family
dis location at a young age and I fully accept that those involved may have perceived things differently. It is
in my view
a distraction and is irre levant
to the issues which impact on the credibility and reliability of the complaints made
by BB in these proceedings.
The defendant argues that BB ’ s disclosure to the prison authorities of the defendant ’ s acts of sexual abuse reflected opportunism
in an attempt to
avoid serving her parole period in a residential rehabilitation facility. Her actions are said to have been highly suspicious.
In the course of
cross-examination on this issue, BB agreed she had told the authorities she did not want to go to a rehabilitation centre but wanted to go home to spend time with her father who was very ill.
The defendant ’ s argument is that ,
based on phone calls monitored by the prison authorities, BB was not close to her fat her. When
confronted with that proposition
by correctional officers
in response to her request to serve her parole at home, it is said
BB made up the allegations of sexual abuse by the defendant to explain the poor relationship she had with her father, enabling her to
give credibility to her request to spend time with him.
The defendant argues BB ’ s suggestion that the defendant ’ s actions had led to a poor relationship with her father was
“ utterly absurd and unworthy of belief
–
like much of what the plaintiff has to say in her evidence ” .
I do not see it that way . T he submission is based on
a
somewhat abbreviated interpretation of the evidence.
The prison officer who received the complaint gave the following evidence at the criminal trial
in relation to BB ’ s disclosure of sexual assault:
“That’s when she started telling the story about why she wasn’t close to her family and historic childhood sexual abuse by a neighbour. Sorry, I’m going to get upset. I can’t get that picture out of my head of her breaking down, telling us the story. And she didn’t go into graphics, and I – I certainly didn’t draw her out about particulars, but things like sneaking past this man’s house, and there was apparently another young girl who was a friend of hers involved as well.
Both of them
were being sexually abused. She m ust have lived close to [BB] because they used to come up with ways to get passe d [sic] this guy’s house without him seeing them and calling them over, which was what he used to do, apparently. Yeah, it was
pretty graphic. …
To be honest with you, you – you hear lots of stories in jail, but it’s very rare for the girls to disclose that sort of stuff to you. She broke down. She actually
gave
us a demonstration of how her and her friend would get down on the ground to crawl past his house, and, I mean, she’s [in] the office crawling around the desk. I believed every word she said. It was so upsetting. I’m
pretty tough , but I walked out of that office, went into my own office and burst out crying, before I went and saw the psych. Yeah, it was
pretty upsetting.”
I accept, as
was put to me in submissi ons, t hat
the
evidence
of the prison officer does not go to the veracity of
BB ’ s
allegations against the defendant . The fact
the prison officer
believed
the complaint s
does not inform whether I believe
them .
However, what it does demonstrate is that BB
in explaining why she was not close to her family recounted a history of sexual assaults
generally
consistent with the history relied upon in these proceedings.
BB ’ s statement to police
in
July 2020 included the
fact
that two or three years earlier she had disclosed how after the
sexual assault by the defendant when she was wearing an orange crop top
(discussed later in this judgment)
she
“ started becoming a bit deviant by wagging school and misbehaving ”
and how after going to court, which she understood was
for her parents to
give away their custody of her, she started drifting from her family. She stated that about two or three years before giving her statem ent
she had disclosed the defendant ’ s conduct to her brother, W2,
“ because I knew he would then tell my dad, which he did ” . She went on,
“ I told my brother because the relationship between my father and I dwindled over the years due to my deviant behaviour growing up. I knew my brother would tell my father as I needed him to know and understand why my life had gone bad ” .
Accordingly, there is a body of evidence providing a credible basis for BB wanting to spend time with her sick father to redress past difficulties in their relationship which BB considered to be seated in the effects of the sexual assaults perpetrated by the defendant .
Whilst it is open to make the submission that BB was opportunistic and lied to avoid attending residential rehabilitation, I do not acc ept that, properly understood, her evidence that
she believed
the defendant ’ s actions had led to a poor relationship with her father can be described as absurd.
The cross-examination of BB involved the proposition that when she was challenged as to the closeness of her relationship with her father by the prison authorities as a reason for avoiding residential rehabilitation,
“ you came out with these allegations of sexual misconduct against the defendant ” . BB ’ s response was,
“ Doesn ’ t make any sense at all ”
( Tcpt
174.50
–
175.02).
The evidence establishes that
within a couple of days of
her release from prison
o n probation,
BB
did go back to the area where her parents were living.
In my view there is force in BB ’ s response that the defendant ’ s theory for her lying to prison authorities
and making up allegations against the defendant do es
not make s ense.
Accepting that people can be capable of capricious and illogical behaviour, it is nonetheless difficult to understand why
when
challenged about the closeness of the relationship with her father by the prison authorities,
BB
decided to
deploy fabricated
allegations of serious sexual assault against an innocent neighbour to explain her
adolescent
behaviour and the breakdown of the relationship with her father.
The defendant also focusses on the poor financial circumstances of BB, who freely admitted she relied upon social security, had been unemployed for many years, and had little in the way of assets.
Those
motives depend upon a theory that at the time she made the allegations of misconduct against the defendant, it was BB ’ s plan, in the context of a discussion about where she would serve her parole, to make spurious allegations against an innocent
person
in order to get to an end point where he would be prosecuted and convicted and she could then bring a claim for damages against him. Whilst I accept BB is a person of limited means, in the circumstances of this case I do not
consider the motive
for financial gain
and
the
complex contingent plan contended for by the defendant is plausible.
Allegations Made by BB
The Defendant Forcing BB’s Hand onto his Penis
In her statement to police, BB describes herself and AA being in bed
at
around 9pm when the adults were playing cards at one of the card nights.
She
said the defendant entered the room and
they pretended to be asleep. She recalled seeing the defendant approach AA . He saw
BB
was
awake and
yelled
at her to go to sleep.
BB
described
the defendant
as drunk and smelling of alcohol.
She
says she saw the defendant grab AA ’ s hand and force her hand down the front of his pants. He then walked around the other side of the bed, grabbed her hand, and pushed it down the front of his pants. She described the room as very dark. She said she could remember the defendant making her grab
what she now knows was his
penis while he held her wrist. She described
this event
as lasting about a minute or two and the defendant leaving the room, telling
the children
to,
“ shut up ” .
BB
recalled
AA cuddling her
after that,
before
she fell
asleep . She woke
up at home the next morning.
BB gave evidence about not being able to play with AA in the following days
which
she understood was because AA got in trouble for telling her parents about what had happened. BB said she later saw AA however they never spoke about the incident again.
BB described how after that
night
her and AA always tried to cut through the next-door neighbour ’ s house to avoid being seen by the defendant. She said,
“ we knew that if his work
ute
was in the driveway he was home and could have been watching us. AA and I didn ’ t talk about it as I didn ’ t want her to get in trouble again ” .
When she gave her evidence in the criminal trial BB said, as she recalled it,
she was
about four years old at the time this incident occurred.
She described how AA had cuddled her after the event and told her she was going to protect her.
In cross-examination
before me
it was put to
BB
that there was never a time that
she
was sleeping in the defendant ’ s bed.
Of that night,
BB said she had seen the defendant grab AA ’ s hand and force it down his pan ts. She
believed there was a la mp on at the time.
The defendant ’ s submission was that the allegation was not corroborated by AA and should not be believed as BB ’ s credibility
“ is substantially wanting ” .
It is true that
before me
AA did not give any evidence corroborating this event. In fact, she was asked no questions at all about it.
In BB ’ s case we are dealing with recollections of a four-year-old child.
As discussed earlier,
AA gave evidence
of an occasion when she
and BB
were
in bed together with
CC
when the defendant had come into the ro om. He
told BB and
CC
to roll over and then sexually assaulted AA.
At the criminal trial AA gave the following evidence:
“Q. In terms of when you were living in [redacted], in that time,
did you know if anything was happening between BB and Ken MacDonald?
A. Yeah. I did. I
– both of us – well, I knew, obviously, things were happening to me, and I knew things were happening to BB, but I can’t recall exactly what was happening to her. All I know is that, yeah, I focused on myself basically, and – and – but I did know things were happening to her. We quite often spoke about it. There was an occasion I remember being at their house, at BB’s house, and we’d been – I think it might’ve been – was a card night. We were in her bed. We’d been put to bed, sleeping head to t oe,
and she’s – and both of us have said ,
‘ Well, what about Uncle Ken? What’s he – what’s he going to do?’
Anyway, so we decided to hop under her bed in order
to
protect ourselves and sleep under there, and then her mother came into the room and said, ‘ What are you girls doing? Get out from under there,’ and then I just remember hopping back into bed and – and then that’s it, yeah, but – but we kind – we knew each other – something was happening with each other.
Q.
So
you have a sense that you knew something was happening to BB?
A. Yeah.
Q. Did you know anything specific that was happening to BB?
A. No, no, I don’t. I can’t recall.
Q. And I’m just talking about the time when you were children.
A. Yes. Yeah.
Q. And you said you spoke about it a couple of times.
A. Yeah, well, there was the time that we were in his bed, for example, and then he’s told us to roll – told BB to roll over, and then when he’s left, we actually – we spoke about what he said to me, and yeah, so she – she was aware of that situation, and then I remember being just under
her
bed, because both of us were scared of him, so yeah, she was – she was co pping it as well. Yeah.”
It is, in my view,
too simplistic to say that BB ’ s account of
the
event
under discussion
is not corroborated.
AA corroborates the fact that both children would sleep in the bedrooms at the defendant ’ s house, that the defendant would come into the room
while they were in bed ,
and that the defendant would sexually assault her in bed .
She says that BB was also being assaulted by the defendant and that the children
were scared of
the defendant for that reason.
The fact that memories
of two very young children
more than 30 years after the event are fragmented and not entirely homogenous is hardly surprising .
[5]
It is
possible that , in the dark room, with at best some light from a lamp,
BB did not see exactly what the defendant did to AA and recalls the event in terms of what he did to her. It is possible that AA has not recalled the event
described by BB
in
amongst the many
assaults that I have accepted were perpetrated on her, or that she has merged
or conflated
different events in her recollection.
It is possible that while recalling the assaults they experienced, both AA and BB have remembered events differently in terms
of
what happened to the other girl .
As I have said, in evaluating the evidence and the reliability of the allegations
made by the plaintiffs, I
take int o
account
the fact that childhood memories may well be clouded.
On this issue,
I think it
significant that the following evidence was given by W1:
“Q. Did AA say anything to you about anybody else being subjected to abuse from Mr MacDonald?
A. Yeah, she told me about BB, BB also being involved in it as well, that Mr – sorry, Kenneth also did the same thing to her, or like was also touching her.
Q. Did that conversation occur
at the same time that
AA disclosed to you
what
he had done to her, or at a different time?
A. I think – from recollection I think it was the same time, yeah.” (Tcpt
213.36 – 213.43)
It is possible BB is just lying about
the
event
in question
and has made it
all
up . However,
I think that unlikely given the
matters discussed above, and the
circumstances in which allegations against the defendant were brought to light
by
BB.
As noted, the fact the defendant was sexually assaulting BB is also consistent with the evidence given by both AA and W1.
BB ’ s account is also supported
by
evidence
of the defendant ’ s tendency
to a sexual interest in young girls
and
tendency to
act on that interest and
engage in sexual conduct
towards
young g irls.
The evidence which I have accepted
and discussed earlier
establishes the defendant acted in a predatory way by repeatedly
sexually
assaulting AA over
a number of
years. That predatory behaviour is consistent with BB ’ s account of him forcing her to touch his penis. Whilst not the same act,
it has elements of the conduct
involved in
forcing AA to perform oral sex. The defendant ’ s brazen
behaviour
in the way he
sexually
assaulted AA is also consistent with his conduct in the
sexual
assault alleged by BB in
the incident in question.
The principles relevant to tendency evidence were recently discussed by Adamson JA (with whom Mitchelmore JA and Price AJA agreed) in
MTH v State of New South Wales
(supra)
at [81] - [83] .
Her Honour referred to
s
97(1) of the
Evidence Act
which precludes evidence of a tendency to act in a particular way unless:
“(b) the
court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
At par [83] her Honour said:
“In order for one piece of conduct to have significant probative value with respect to another, a sufficient link, or common feature, between the two distinct events must be shown. It is not necessary that the link be peculiar:
The Queen v Bauer (a pseudonym)
(2018) 266 CLR 56; [2018] HCA 40 at [58].
A tendency to act in a particular way may have significant probative value although the acts alleged to evidence the tendency are dissimilar in some respects while sharing common features: see
Hughes v The Queen
(2017) 263 CLR 338; [2017] HCA 20 at [37]. In the present case, a common feature of the offences against RS (in the context which RS’s evidence could have provided) and those against MTH (in the context provided by MTH’s other evidence) was that the assaults were sexual and committed against foster children under Mr Croft’s authority, control and care , in circumstances where he was purporting to discipline them. I regard the offences against RS as having significant probative value, because they tend to show that Mr Croft had a propensity to act and think in a particular way.
...”
In the present case I consider the evidence of the sexual assaults committed by the defendant against AA provide persuasive evidence
of tendency
in support of the inference that the defendant sexually assaulted BB on the occasion presently under consideration.
Additionally ,
it is apt to consider here BB ’ s reliance on
coincidence evidence, namely that
the
similarities in the
events
alleged by AA and BB
and
the circumstances in which they occurred ,
are such that
it is improbable
they
occurred coincidentally.
T here is
similarity in the
description s
by AA and BB of sexual assault being perpetrated by the defendant when they were in bed at his house
during
neighbourhood gatherings
and ,
as discussed ,
similarity
in the
nature
o f
the assaults involving AA being forced to perform oral sex
on the defendant and BB being forced to touch the defendan t ’ s penis.
In the circumstances ,
whilst I consider the tendency evidence to be a compelling factor ,
t his coincidence evidence
is , in
a
similar vein,
probative of
BB ’ s allegation that
the defendant forced her hand onto his penis.
As
discussed , BB has on the evidence been shown to have committed offences involving acts of dishonesty
which is something I bear in mind when evaluating the evidence . However,
before me BB answered questions openly. My impression was
that the recollections
she recounted
were painful for her.
There was none of the inconsistency
and opportunism
in
BB ’ s
evidence which is to be found in the evidence of the defendant to which I have already
referred .
On balance,
I accept
BB ’ s
account
and find that the defendant sexually assaulted her by placing her hand on his penis as alleged . In doing
so ,
as with the various other allegations made by the plaintiffs,
I do not
ignore
the
serious nature of the allegation and the
fact the defendant has denied it from the outset.
Various Occasions between 1980 – 1984 when the Defendant Touched BB’s Breast s,
Vagina
and Buttocks
As outlined earlier at par s
1 4 (2), (3), (4), (5) and (7),
BB alleges the defendant in a range of circumstances, most often when hugging her, would sexually assault her by touching her breasts and vagina and sometimes her buttocks on the outside of her clothing.
Having regard to the defence mounted, these
allegations can be dealt with together. They are all denied by the defendant and in each instance, BB was accused of lying and fabricating her evidence. In submissions the defendant argues that in ea ch instance alleged
there is no direct corroboration and otherwise
“ relies on BB ’ s abundant lack of credit in general terms in defence of this allegation ” .
It is not a prerequisite to the acceptance of BB ’ s account that there be
“ direct ”
corroboration of the alleged assaults. Indeed,
one would expect
predatory assaults on children
of the type
BB
describes
would generally be
committed
in a surreptitious way
without
eyewitness.
BB ’ s evidence in relation to these various alleged assaults at the criminal trial was given in the following terms:
“Q. What happened over the years? Just in a general sense.
A. Grabbing and touching. It was sort of always a constant thing in – in my head that I had to – got to try and avoid him. Like the whole time that I – I lived there actually. It was like a constant part of my life, trying to avoid him so that – because if I was in contact, or talking to him, or near him then, yeah. Something would happen.
So
I was
always trying to not be in his presence.”
BB gave evidence that the defendant would be in his garage when he got home from work with the door open. He would be drinking beer every day. BB said that during school holidays and when she was at home and the defendant was at work, she would walk past his home, but she said,
“ yeah, soon as that time in the afternoon he ’ d come in, and his work van was there, we ’ d cut through the neighbours next door to my house ” .
BB gave examples of the defendant telling her to give him a hug and then
“ he ’ d
–
he ran his hand from
–
well, my vagina up to the top of my head. Like, I had clothes on, but still …”
This was said to be a regular
occurrence
from
about the age of six
until
she moved out of home.
BB
said she made a constant effort to avoid being in a position where the defendant could assault her in that way.
The
cross-examination of BB
before
me
was
essentially
to put to her that she was lying about these things.
In the face of the defendant ’ s denials, o ne must look at the evidence
overall
when gauging whether BB has discharged the onus
which rests
upon h er. Again, it is important to bear in mind that although the defendant confronts an evidentiary onus arising out of the convictions, the plaintiff bears a positive onus of proving her allegations.
The defendant ’ s tendency to
act on his sexual interest in
young girls
also provides BB with
significant
support for her allegations.
The evidence of AA , which I have accepted,
establishes that the defendant committed acts of sexual assault upon her in his garage.
There is a clear similarity
between BB ’ s account of being assaulted
in the defendant ’ s garage and AA ’ s
description of
the
defendan t being present in the garage when he got home from work and
at times
using it as an environment to commit acts of sexual assault.
Again, whilst
subsidiary to
the potent tendency evidence
supporting BB ’ s
account ,
t his is
coincidence
evidence
also probative of
the allegations
under consideration .
Again, the way in which these allegations came to light does not, in my view,
sit comfortably
with BB making it up.
Otherwise, as discussed earlier, the
premise of the defendant ’ s argument is that
BB has maliciously and dishonestly accused him of various acts of criminal misconduct , enlisting the support of
AA,
W1
and W2
in the process .
As I have noted, there
has been no
plausible
reason
shown
as to why BB would make up such serious allegations against someone who, on the defendant ’ s account, had never done anything to her.
I am
satisfied
the evidence
overcomes the defendant ’ s denials and
that
BB
has made
good her allegations . Accordingly, I find
that over
a number of
years
the defendant
sexually assaulted
BB
by touching her vagina and breasts and at times her buttocks.
Assault Committed in the Defendant’s Garage in the Presence of BB’s Father
In the evidence she gave in the criminal trial BB described an event that occurred in the defendant ’ s garage when her father was present in the following way:
“I was at [AA’s] swimming after dinner. And mum had called us to go home. And I got out of the pool. And I went to walk home. And I noticed that my dad was in the garage, talking to him. And so that while dad’s there – so I ran across. I was standing there with my dad, and they were having a conversation. And we went to leave. And as we went to -I was holding my dad’s hand. And as we went to walk out of the garage, he’d swung
hs
hand
from behind me and towards my – my bottom sort of thing. And I was sort of standing there with my wet costume on and I – I felt pain – I don’t know why. I wasn’t sure from why at the time. And my legs were just sort of to my feet. We just – I couldn’t move for a second.
And I went home and had a shower and got ready for bed. And just before I went to bed which wasn’t that long after I’ve had the shower, I went to the toilet and there was blood in my underpants. And I was frightened. I didn’t know – I didn’t even know that girls bled or anything at that time. And I just told my mum. And mum had a look and she changed me and went to bed. And I didn’t think anything of it. I thought it was okay. And then the next morning, I went to get ready for school and my mum was making breakfast and me and my brothers were niggling and fighting.
And I went to get my clothes and Mum said, ‘No, you’re not going to school today. You’re going to the doctors and I said, ‘Why?’ Because it was – I wasn’t sick. And we went, she didn’t tell me why. And then we went to the doctors and during the morning, and we walked into the doctors, and we were sitting there. I was sitting in the
corner
and Mum was talking to her. And then
all of
a
sudden
she pulled my underpants out from the night before and showed the doctor. And I was mortified. I was, ‘Oh my God, what’s mum doing?’ And the doctor said to my mum, ‘Oh, don’t worry about it. She’s probably just shoved something there.’
And I remember sitting there thinking, ‘Shove something where?’ Where – where was there something to do that? And they didn’t – she didn’t talk to me. She didn’t look at me. She didn’t. And mum and the doctor just kept talking. And we went home, and it was like there was – nothing had happened. But I had realised that there was – that’s why I – I’d started bleeding. Like that’s why there was blood on my underpants. And that I’d felt that pain the night before. But yes, I was standing there with my dad when it happened.”
BB went on to expand that evidence to say that she was holding her father ’ s hand when the defendant swung his arm from behind her and that his finger, with her swimming costume, went inside her vagina. She said she had a lot of pain in both her legs and felt as though she could not move for a second. She gave evidence that she said nothing
at
the time.
In cross-examination before me, BB said she may have called out in pain and that she stood stiff as a result
( Tcpt
185.18-185.23) .
She did not think her father had noticed.
BB ’ s mother ( Witness Four ) was called to give evidence before me by the defendant. She said she did not recall a time when she saw blood on BB ’ s underpants or taking her to a doctor to investigate it. Her evidence was in terms
of
“ not that I can recall ” , though at one point she added,
“ but we ’ re talking 40 years ago ”
( Tcpt
327.45) .
In my view, the circumstances of the assault in the defendant ’ s garage in the presence of BB ’ s father
are
so implausible as to make it improbable.
That conclusion is not credit based. BB ’ s account of the assault occurring whilst she was holding her father ’ s hand, causing her to freeze, when the defendant must have been standing very close behind her and must have bent over or leaned forward to commit the act, in circumstances where BB ’ s father was oblivious to the assault, cannot withstand objective scrutiny.
The conclusions I have reached otherwise in relation to the defendant satisfy me he
was capable of committing
the type of sexual assault complained of by BB . However,
I do not consid er
an assault
could have occurred in the way BB asserts.
The evidence of BB ’ s mother that she did not recall blood staining after the event was subject to the caveat that it was a
long
time ago, and the clear import of
her
evidence was that she did not reject the
possibility
it may have occurred.
It is not for me to speculate but it is conceivable that BB has misremembered, or, given her age
at the time
and the other events of which she complains, has distorted an event. Or it may not have occurred.
In
those circumstances
I find the allegation is not established on the balance of probabilities .
For the reasons outlined, that conclusion does not infect BB ’ s evidence generally.
The Crop Top Incident
In the criminal proceedings BB gave evidence of a very specific recollection. She recalled that she was in high school and it was either her 13
th
or 14
th
birthday. She had been given a new outfit by her mum, a white linen skirt and an orange top. She said:
“Well, after school I’d – I’d put the top and the skirt on, and I’d gone up around to [AA’s] to show [AA] that – what – that I’d gotten this for my birthday and mum had called me for dinner, and I’ve gone to go home, and I ran down the side, like, there’s a – between her house and the house next door to mine, and as I went to run across the front yard to go home, Ken had spotted me and yelled out to me and told me to come over and give him a hug for my birthday, and I was a bit older then too, and I remember standing there saying, ‘No, no, mum’s calling me. I’ve got to go. I
have to
go home. Mum’s calling me for dinner’. And he had come out, walked out of the garage then and had said, ‘Come over’, you know, ‘Your Aunt Deb’s got a present for you’, you know, ‘Come over’, and you know, ‘it’s your birthday’.
And so I walked across the road and as I walked across the road, he’s gone to give me a hug for my birthday and grabbed my breast, but he had grease all over his hand, and yeah, there was a – he left a dirty – grease hand print on my breast of this short – this top, and when I went home, I walked in and mum was serving dinner up, and she’s looked at me and said, ‘What’s that?’ I said, ‘That’s what Ken’s done’, because he, you know, Ken – Ken’s did that with – and she said, ‘Give it here’. And she was in a bit of a fluster serving dinner up, and she’s gone into the laundry and tried to clean it, and it wouldn’t come out . She couldn’t get it out.
So
she threw my – my top away – I had to throw my top away and replace it. She had – so the night of my birthday, I’d only got the top in the morning, and she
actually had
to throw it away and buy me a new one. It was within a couple of days, and she bought me a new top. But yeah, it's – had to get it thrown out.
Q.
So
you told your mum that Ken had done the stain on your top?
A. Yeah. Yeah.
Q. What did the stain look like?
A. I was – I was a bit – I was angry at that point. I was – I don’t know – for years I’d been trying to – you know, avoiding him and whatnot. And – and no one had sort of listened or if anything was said. And – I think I might’ve been frustrated or something. And I remember I yelled at my mum, and I said, ‘That’s what Ken did. Ken did that, like’. And yeah,
cause
he’d ruined my top, and I – I knew that he’d ruined my top. And it was my birthday. I got it for my birthday. And yeah, so I – I remember yelling on it – mum – I was angry that – that it happened.
Q. What did the stain on your top look like?
A. Like a handprint.
Q. And whereabouts was the handprint?
A. On my – where he touched my breast.
Q. From when he grabbed
you?
A. Yeah. Yeah.
Q. And did your mum talk to you about the fact that you said Ken done that?
A. No. No, she was flustered, serving dinner up. And yeah, no. And then just had to buy me a new top. It didn’t – like, it was within a couple of days that she got me a new top, but yeah. When she gave me the new top, she didn’t – didn’t bring that up”.
As I said, that is a specific recollection which is fixed by a particular occasion enamelled by the disappointment and anger that the defendant ’ s actions are said to have caused BB.
In cross-examination before me BB was tested in relation to those allegations and in particular the fact that her mother did not respond to the suggestion that the defendant had left a grease mark on the breast area of BB ’ s top. She said
her mother
“ was flustered, serving dinner up and stopped and went into the laundry and tried to get it out and came back and served the dinner up and told me to sit down and eat ”
( Tcpt
189.26-189.28) .
Again
it was put to BB that this was simply a fabrication.
BB ’ s mother in her evidence before me recalled BB having a crop top which she received as a birthday gift. It was
“ Like a
tomatoie ,
orangie
red colour ”
( Tcpt
332.05) .
BB ’ s mother said in her evidence in chief that she could only remember the top and could not remember anything about it , only
the actual top.
BB ’ s account of what had happened when she came home with her soiled crop top was put to her mother
in cross-examination a nd she was asked whether that was possible. She said :
“Yes, quite possibly that was how things would have been. It very much sounded – that was my demeanour with doing things. Even though I don’t recall it, I would say there’s a good possibility that that did occur.” (Tcpt
333.23 – 333.25)
As I have
noted,
BB ’ s recollection of this event is quite a specific one. It is clear on the evidence that she is accurate in recalling having received an orange crop top for her birthday at about the time she recounted. Her mother ’ s reaction
to the way in which the stain occurred was,
on one view of it ,
not
what
one would
expect . On
another view it is plausible, not only to me but to BB ’ s mother ,
that in the real-life environment of a busy household and a flustered parent, it did not register any
particular alarm
bells. This is particularly so having regard to the evidence of BB ’ s mother that, on her view of the world at the time,
“ the last thing anybody would be thinking of ”
was that the defendant, a trusted friend, would behave inappropriately towards children
( Tcpt
330.15) .
The evidence of BB on this point is
credible . I f untrue, i t
is
a very
specific
fa ctual
allegation
dredged up
years later
and distorted ,
which I think
unlikely.
The
nature of the
assault of which BB complains on that birthday is
also
consistent with the tendency towards such behaviour which has been established by the defendant ’ s conduct.
Notwithstanding the defendant ’ s denials from the outset, w eighing all the evidence,
I accept BB ’ s account of th is
event. Accordingly,
I
find
that BB was
sexually
assaulted
by the defendant
whilst wearing her
orange
crop top in the way she described.
Disposition
of BB’s Claim
For the
above reasons BB has established all but one of the pleaded allegations of sexual assault. As with AA, having regard to the basis upon which the matter was litigated, BB is entitled to damages which have been agreed in the sum of $993,741.
Orders
Accordingly, I make the following orders.
In matter number 2024/75758
AA v MacDonald
:
Judgment for the plaintiff against the defendant in the sum of $1,898,701.
The defendant is to pay the plaintiff ’ s costs of the proceedings.
In matter number 2024/199266
BB v MacDonald
:
Judgment for the plaintiff against the defendant in the sum of $993,741.
The defendant is to pay the plaintiff ’ s costs of the proceedings.
**********
Endnotes
1.
See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170 – 171; [1992] HCA 66, at [2] per Mason CJ, Brennan, Deane and Gaudron JJ.
2.
See generally Tcpt 271 - 274.
3.
See evidence of BB’s mother at Tcpt 330.35-331.03. See also the statement of AA’s mother tendered by the defendant which acknowledges it was feasible the defendant could have disappeared from the adult group and been away with the children.
4.
I observe that W3 acknowledged in cross-examination that the defendant had probably attended their wedding. However, in submissions it was accepted on behalf of the defendant that nothing turned on this as the defendant’s wife and AA’s mother were best friends and it was understandable in the circumstances that she and the defendant might have attended the wedding.
5.
For example, BB has a recollection about AA complaining to her parents about the defendant’s conduct which is different to the evidence of the complaint given by AA. However, she corroborates the fact, through the distant eyes of a child, that AA had unsuccessfully sought to complain.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated:
05 February 2026
Official source: https://www.caselaw.nsw.gov.au/decision/19c26a9fd3067457aa14fdf2