THE STATE OF WESTERN AUSTRALIA -v- PJN (pseudonym initials) [2026] WADC 62

[2026] WADC 62 [2026] WADC 62 [HC] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- PJN (pseudonym initials) [2026] WADC 62 CORAM : HERRON DCJ HEARD : 15-19 JUNE 2026 DELIVERED : 3 JULY 2026 FILE NO/S : IND 72 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND PJN (pseudonym initials) Catchwords: Historical sexual offending allegations - Section 183, s 181 and s 185(1) Criminal Code (WA) (repealed) - Judge alone trial Legislation: Criminal Code (WA), s 183, s 181, s 185(1) Result: Judgments of acquittal -- 1 of 64 -- [2026] WADC 62 [2026] WADC 62 [HC] Page 2 Representation: Counsel: The State of Western Australia : Ms D Clarke Accused : Mr T Percy KC with Ms F Hugo instructing Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : Tehan Legal Case(s) referred to in decision(s): Christophers v The Queen (2000) 23 WAR 106 HMA v Watson (1885) 13 Ct of Sess Cases 6 Houghton v The Queen [No 2] [2004] WASCA 20 Liberato v The Queen (1985) 159 CLR 507 Longman v The Queen (1989) 168 CLR 79 R v Chapman [1959] 1 QB 100 R v Reekspear (1832) 1 MOOD 342; (1832) 168 ER 1296 R v Smith [1970] NZLR 1057 Rodway v The Queen (1990) 169 CLR 515 Thorne v The State of Western Australia [2006] WASCA 218 -- 2 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 3 HERRON DCJ: Introduction 1 For the reasons which follow I find the accused not guilty of each count on the indictment and accordingly enter judgments of acquittal. 2 In arriving at those verdicts, I have generally believed and accepted the evidence of the accused including his denials of each of the offences alleged. Further, I have accepted his evidence when he denied having engaged in any penetrative sexual activity with the complainant and denied any indecent dealing with her such as by touching her breasts and her backside on a persistent basis at the Yokine and Padbury houses. 3 I have found the complainant's memory of what she said occurred to be unreliable and that there are various inconsistencies in and contradictions within her evidence as to what she said occurred and inconsistencies between earlier out of court statements as to what she said occurred and the evidence she gave at trial. I find the significant period of in excess of 40 years which has elapsed since the incidents are alleged to have occurred and when the complainant gave her evidence have impacted on the reliability and credibility of her evidence. I have concluded that because of that significant lapse of time and also because of the various inconsistencies and contradictions in the complainant's evidence that I cannot safely rely on it in circumstances where her evidence is not corroborated. 4 I reject the complainant's evidence that the accused regularly and persistently engaged in sexual activity with her, which escalated to an almost nightly basis at the Yokine and Padbury houses. It was the State case in opening that on the basis of the evidence of other sexual conduct by the accused towards the complainant, and also having regard to the conduct the subject of the 12 counts on the indictment, the accused had a sexual interest in the complainant on which he was prepared to act by sexually offending against her when he had the opportunity to do so. It was the State case that that tendency evidence was a part of the evidence relied upon by the State which, if accepted, established the accused was more likely to have committed each of the offences on the indictment. -- 3 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 4 5 The State also relied upon the evidence of such conduct as common law relationship and background evidence to demonstrate the true nature of the relationship between the accused and the complainant and to explain why the alleged sexual abuse was able to occur and to continue, and, also to explain why the complainant was often unable to give specific details about the conduct subject to each count on the indictment. 6 As I have not accepted the evidence of the complainant that the accused regularly and persistently engaged in sexual activity with her, it was unnecessary to consider the State's reliance on the evidence of this conduct as tendency evidence and common law relationship and background evidence. 7 I have anonymised the name of the accused only to protect the identity of the complainant. I have also anonymised the names of some other witnesses and specific addresses which may have led to the complainant being able to be identified. Background 8 By indictment dated 12 June 2026 the accused, PJN, is charged with 12 counts of sexual offending against Ms C, who at the relevant time was the stepdaughter of the accused. They are allegations of indecently dealing with or unlawful carnal knowledge of a child, and allegations of unlawful carnal knowledge of the complainant against the order of nature. 9 The historical allegations cover a period from 2 August 1983 to 1 January 1987 at different places and involving different incidents. 10 The State alleges the accused committed offences against the same complainant when she was a child. In the case of two counts, counts 5 and 9, which allege the accused committed an offence of carnal knowledge against the order of nature, although on the State case the complainant was a child at the time the offences are alleged to have occurred, that fact is not an element of the offence alleged. 11 Count 1 alleges that on a date unknown between 2 August 1983 and 3 August 1984 at Huntingdale the accused unlawfully and indecently dealt with Ms C a child under the age of 14 years by touching her leg with his penis. The offending is alleged to have occurred at a house at which the accused and the complainant were living in Huntingdale. -- 4 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 5 12 Count 2 alleges during the same date range and again at Huntingdale the accused unlawfully and indecently dealt with Ms C when she was a child under the age of 14 years by touching her in the course of undressing her. 13 Counts 3 and 4 allege that on an unknown date between 31 December 1983 and 3 August 1984 at Tuart Hill, during the same incident, the accused sexually offended against Ms C in two separate ways. Count 3 alleges he unlawfully and indecently dealt with Ms C when she was a child under the age of 14 years by washing her naked body and count 4 alleges that at the same time the accused had unlawful carnal knowledge of the complainant when she was a child under the age of 13 years. It is alleged the offending occurred at a unit at which the accused and the complainant were then living in Tuart Hill. 14 Count 5 alleges that on a further date unknown between 31 December 1983 and 3 August 1984 at Tuart Hill in a different incident on another day the accused had carnal knowledge of the complainant against the order of nature. 15 Count 6 alleges that on a further unknown date between 31 December 1983 and 25 December 1984 at Tuart Hill the accused unlawfully and indecently dealt with the complainant when she was a child under the age of 14 years by licking her vagina. 16 Counts 7 - 9 allege that on a further date unknown between 31 December 1983 and 31 December 1984 at Cottesloe the accused sexually offended against the complainant in three separate ways during the same incident. Count 7 alleges the accused indecently dealt with the complainant when she was a child under the age of 14 years by exposing her vagina. Count 8 alleges that at the same time the accused unlawfully and indecently dealt with the complainant by penetrating her vagina with his finger when she was a child under the age of 14 years. Count 9 alleges that during the same incident the accused had carnal knowledge of the complainant against the order of nature. It is alleged the offending occurred at Cottesloe Beach. 17 Counts 10 and 11 allege that on another unknown date between 2 August 1984 and 3 August 1985 at Mount Hawthorn, during the same incident, the accused, in count 10, indecently dealt with the complainant when she was a child under the age of 14 years by touching her breast with his hand and in count 11 the accused had unlawful carnal knowledge of the complainant when she was a child under the age of 13 years. It is alleged the offending occurred at the Mount Hawthorn shopping centre. -- 5 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 6 18 Finally, in count 12, it is alleged by the State that on a date unknown between 31 December 1986 and 1 January 1987 at Padbury the accused unlawfully and indecently dealt with the complainant when she was a child under the age of 14 years by introducing his penis into her mouth. It is alleged the offending occurred at the house in Padbury at which the accused and complainant were then living. 19 Therefore, it is alleged the accused sexually offended against the complainant on eight separate occasions when she was either a child under the age of 13 years or under the age of 14 years, although as earlier noted the complainant at the time the offences in counts 5 and 9 are alleged to have occurred, was a child, that is not an element of the offence. 20 Therefore, counts 1, 2, 3, 6, 7, 8, 10 and 12 are allegations the accused unlawfully and indecently dealt with the complainant when she was a child under the age of 14 years pursuant to s 183 (repealed) of the Criminal Code (WA). 21 Counts 4 and 11 are allegations the accused had unlawful carnal knowledge of the complainant when she was a child under the age of 13 years contrary to s 185(1) (repealed) of the Criminal Code. 22 Counts 5 and 9 are allegations the accused had carnal knowledge of the complainant against the order of nature contrary to s 181 (repealed) of the Criminal Code. Repealed provisions 23 Each of the provisions by which the accused is charged has been repealed and it is necessary to consider and apply the law as it existed at the time when the offending is alleged to have occurred.1 I have described the allegations as historical allegations because of the period of time over which the State alleges the offences occurred and how long ago it is alleged the offences occurred. 24 At the time the offending is alleged to have occurred s 185(3) read: A person cannot be convicted of … the offences defined in this section upon the uncorroborated testimony of one witness. 1 Each of the provisions as they applied during the period of the alleged offending was repealed on the 23 March 1990 by the Law Reform (Decriminalization of Sodomy) Act 1989 (WA) (repealed), No 32 of 1989. -- 6 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 7 25 By s 1(1): The term 'uncorroborated testimony' means testimony which is not corroborated in some material particular by other evidence implicating the accused person. 26 The repeal of the need for the evidence of a complainant alleging an offence of unlawful carnal knowledge of a girl under the age of 13 years to be corroborated is procedural in character and does not operate to affect existing rights or obligations.2 Rather the repeal of the need for corroboration affects the way in which existing rights and obligations fall to be determined at trial. The existing law no longer requires a complainant's evidence alleging such a crime to be corroborated. Indeed, people accused of sexual offending against children are often convicted on the uncorroborated evidence of a complainant. If follows, therefore, the complainant's evidence is not required to be corroborated for the accused to be convicted of the offence alleged pursuant to s 185 (repealed) of the Criminal Code. The issues in dispute 27 The main issue in this trial is whether I am satisfied beyond reasonable doubt the events described by the complainant Ms C happened. Am I satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of Ms C. 28 Given the delay in reporting the allegations is her memory of what she says happened to her over 40 years ago, when she was a child aged 9 - 14, reliable and credible, or is her memory fallible or false? Longman v The Queen3 considerations - Delay and forensic disadvantage 29 The State submits the complainant is a witness of truth. She is, of course, the only witness against the accused as to the happening of the events alleged in the indictment. No one has corroborated her evidence as to the offences themselves. 30 Therefore, the position is that I must be satisfied beyond reasonable doubt as to the truthfulness of the evidence of the complainant before I can convict the accused of any of the charges. 2 Rodway v The Queen (1990) 169 CLR 515. 3 Longman v The Queen (1989) 168 CLR 79. -- 7 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 8 31 Because of the crucial nature in this case of her evidence and because of the seriousness of the allegations she makes, I must scrutinise her evidence with special care. 32 I must take carefully into account that these events are alleged to have happened, in the case of counts 1 - 9 some approximately 42 - 43 years ago, and in relation to the later counts, counts 10 - 12, between 39 ½ - 42 years ago. They are allegations of serious sexual crimes. No complaint was made at the time. There is no corroboration, no other evidence that the events happened. The complainant was a young child at the time and human memory is fallible. The longer the delay the more opportunity there is for error and particularly is that so for events occurring in childhood. 33 It is a matter of common experience that the longer a person believes something to have happened the more convinced they are that it has happened. This can be so even if they are mistaken in their recollection. 34 I must also bear in mind all the matters that might have an impact on the reliability of the evidence of Ms C. These matters include: 1. Ms C was aged 9 years when she says the events the subject of counts 1 - 5 occurred, aged 9 or 10 years when the offences the subject of counts 6 - 9 are alleged to have occurred, aged 10 years when the offences the subject of counts 10 and 11 are alleged to have occurred, and aged 13 when the offence in count 12 is alleged to have occurred. 2. The long period of time which has elapsed since these incidents are alleged to have occurred between 42 - 43 years ago. 3. The delay in reporting the matters to police. Ms C said she first reported her allegations to police in 2017.4 Her evidence is to be contrasted with the evidence of the investigating officer, Detective Kristancic, who said the matter was first reported to police in 2022.5 35 She signed her first police statement on 28 March 2024 after providing a written report described as 'Detailed Incident Report' to police,6 which took her some months to complete following various 4 ts 102. 5 ts 290, ts 294. 6 Exhibit 12. -- 8 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 9 meetings with a police officer, including providing them with the written report she compiled in 2023,7 so her statement was completed in relation to the earliest alleged offending approximately 40 years later. In that first police statement she did not refer to the Cottesloe Beach incident and after later informing the police of that incident she signed a further police statement in May 2024.8 36 As I have said, human memory is fallible, and honest witnesses can be wrong in their recollection. 37 I must also bear in mind that because of that long delay the evidence of Ms C cannot be adequately tested. 38 By reason of the delay the accused has lost the opportunity to bring forward matters of defence and to fully test the evidence of the complainant. 39 Because there was no complaint to the police or any other authority at the time, there was no police investigation at the time. Therefore no photographs of the houses in which they lived were taken at the time. Nor were photographs taken of the rooms and layout of the houses. Although some photographs of the residences in which the accused and the complainant lived, including of the interior of the residences, were taken at a time contemporaneous to when the offending is alleged to have occurred, and have been tendered into evidence and each of the complainant and the accused confirmed the photographs generally showed what they remembered the residences looked like at the time, no one was certain of exactly when the photographs were taken and the circumstances in which they were taken. For example, the accused was uncertain as to whether some photographs, for example Exhibits 5, 11, 23 and 24, were photographs taken inside the Tuart Hill unit or the Yokine house. He was also uncertain whether some photographs were of the Padbury house or the Hillarys house. That uncertainty is unsurprising given the period of time which has elapsed since he lived in the residences and when the photographs were taken. 40 There are no photographs for example of the bedroom in which Ms C said the offending the subject of count 6 occurred when she was sleeping on a mattress in her brother's bedroom which might have cast doubt upon the reliability of her memory as to where she said the 7 ts 116. 8 ts 167. -- 9 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 10 incident occurred. Nor are there photographs of the back patio area of the Huntingdale house, showing what the back patio area looked like and whether there was a small wooden bench in the area as described by the complainant in her evidence, which might have confirmed the accused's evidence that there was no table or seat in the patio area. 41 It is now not possible to be certain who else was in the houses when the incidents are alleged to have occurred and where anyone was in relation to where the incidents are alleged to have occurred and whether, for example, they might have heard the incidents or walked in while the incidents were occurring. 42 In relation to the counts involving allegations of penile or digital penetration there was no medical examination of the complainant when she was a child at the time. For example, there was no medical examination of the complainant after she said the accused penetrated her vagina with his penis in the incident the subject of count 4 and ejaculated into her vagina causing her a lot of pain. Nor was there a medical examination of the complainant after, she gave evidence, the accused anally penetrated her with his penis in the car which caused her much pain. Had the matters been reported at a time contemporaneous with when the offending is alleged to have occurred it might have been possible to perform a medical examination to determine whether there were any injuries or signs consistent with penile penetration of the complainant's vagina or her anus. 43 The opportunity to test the clothes of the complainant in relation to those counts in which she said the accused ejaculated has been lost. For example, the complainant said that when the accused sexually penetrated her vagina with his penis in the incident the subject of count 4, he wiped her genital area with a towel before making her get dressed. Also, the complainant said that when the accused anally penetrated her in the car, the subject of count 5, and ejaculated into her anus, she got dressed and they returned to the unit. 44 Because there is a lack of precision as to when the alleged offences occurred, and how long ago it is alleged they occurred, it is difficult, if not impossible, for the accused to now recall where he was on a particular date, or what he was doing, or locate witnesses concerning his movements at the residences at the time the offending is alleged to have occurred. -- 10 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 11 45 Although of course the accused does not have to prove anything in this trial, neither is he able to now call evidence as to exactly when he was working. He is no longer, for example, able to produce work rosters or calendars, or confirm the times when he was attending English language classes when he first arrived in Perth and was living at the Huntingdale house. He gave evidence in relation to the offending which is alleged to have occurred at the Tuart Hill and Yokine residences that he was generally away from the residences for long periods of time working, starting work very early in the morning and working in the evenings. He is no longer able to produce records to confirm his evidence about his precise working hours. 46 It is no longer possible to produce photographs of the Mount Hawthorn Shopping Centre at the time the offending in counts 7 - 9 is alleged to have occurred. Although all of the witnesses confirmed the architectural drawing and the photographs of the shopping centre9 were generally consistent with their memories of the layout of the shopping centre at the time, they also said there were some differences such as the supermarket being a Woolworths and not a Target. Had the matter been reported to police at a time near when the incident is alleged to have occurred, police could have taken photographs inside the shopping centre and more clearly identified where the offending is alleged to have occurred and taken photographs, perhaps of the cleaning room as it existed at the time the incident is alleged to have occurred which may have confirmed the accused's denial of the offending and denial of there being any lunchroom or staff room. 47 The accused has lost the opportunity to gather and speak to witnesses who may have been able to confirm his movements at the relevant time and confirm that he could not have committed the offences alleged. Even if such witnesses were now able to be identified and located, because of the long passage of time it is likely their memory of where they were four decades ago will be diminished. For example, had the allegations been reported to police soon after the offending is alleged to have occurred it may have been possible to identify witnesses regarding Sonya's wedding, when it occurred, and also spoken to Ms GC at that time to confirm whether she did or did not babysit the two boys at the time or whether if she did babysit she babysat all three children together. 9 Exhibits 20 and 21. -- 11 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 12 48 Photographs could have been taken of the positioning of the Mazda in the Tuart Hill unit complex carpark and a better understanding may have been able to be obtained of how exposed the carpark was at the time which opportunity has now been lost in circumstances where the photographs which have been tendered show a carpark with many more cars than the accused and Ms GC said existed at the time in 1983.10 49 Also because of the long passage of time the accused has lost the opportunity or the ability to fully test the complainant's evidence because she is now unable to remember all of the surrounding circumstances of the incidents which defence counsel could perhaps have explored in greater detail to more thoroughly test the evidence of the complainant if the allegations had been reported sooner. There is now little point in exploring surrounding details with the complainant, which may have cast doubt upon her evidence as to the happening of an incident, or confirmed the accused's denials, these opportunities being lost by the delay. 50 The first time the accused PJN was told of the allegations and given an opportunity to respond was when he was told by police on 28 May 2024 approximately 40 years after the initial incidents are alleged to have occurred. 51 The accused is no longer able to recall where other people in the houses were and who may have been able to give evidence to confirm where he was, either somewhere else in the house, or out of the house when the offending is alleged to have occurred. 52 The passage of time is a factor in people's recollection of events, and memory and recollection often dim with the passage of time. The long passage of years between the alleged events and the matter coming to the court for hearing raises the question that I must consider, which is the truthfulness, reliability and accuracy of the complainant's recollection and whether or not I can safely rely and act upon it. That is a specific issue which I must address in considering whether or not I accept the complainant's evidence because of, as I have explained, the long passage of time and the way the matter has unfolded, the accused has to a degree lost the means of testing certain aspects of the evidence against him. 10 Exhibit 13. -- 12 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 13 53 These factors, along with the delay in reporting the allegations play an important part in my evaluation of the complainant's evidence. 54 In my view the fairness of the trial, as the proper way to prove or challenge the accusations, has necessarily been impaired by the long delay. 55 Because of the impact of the long delay, the lack of precision as to when the alleged offences occurred, the lack of a police investigation at the relevant time and the unavailability of witnesses due to the passage of time, it is particularly important that I scrutinise the evidence of the complainant with special care. 56 I accept it is dangerous to convict the accused on the uncorroborated evidence of the complainant unless I have scrutinised her evidence with great care and have considered the circumstances relevant to her evidence to which I have just referred. Burden and standard of proof 57 The burden of proving each charge is on the State. 58 The accused does not have to prove anything. 59 The standard to which the State must prove each charge is beyond reasonable doubt. 60 I cannot convict the accused unless the State has satisfied me beyond reasonable doubt that the accused is guilty of the charge it has presented. 61 If I have a reasonable doubt as to whether the accused is guilty of the charge I am considering, then it is my duty to acquit him. Presumption of innocence 62 It is important for me to remember when I am considering the evidence that the accused is presumed to be innocent of the charges against him. Any person who stands trial is presumed to be innocent. 63 I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that evidence has been produced in this trial which proves that he is guilty of the offence charged. 64 If I have a reasonable doubt as to whether the accused is guilty or not guilty then it is my duty to find him not guilty. -- 13 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 14 Liberato v The Queen direction11 65 The accused gave evidence during the trial. The accused did not have to give evidence at this trial. Because of the presumption of innocence that applies to any person who stands trial he was at liberty not to give evidence. But the accused chose to give evidence and, as a result, to submit himself to cross-examination by counsel for the State. 66 The fact that he chose to give evidence does not in any way detract from the important principles of our system of law that the onus is on the State to prove the charges that it presents against the accused and the accused is presumed to be innocent until the charges against him have been proved beyond reasonable doubt. 67 If I believe the accused's evidence, I must acquit him. 68 If I have difficulty in accepting the evidence of the accused, but think that it might be true, then I must acquit him. 69 Even if I do not believe his evidence, I cannot find an issue against the accused contrary to his evidence, if his evidence, or any evidence for that matter, has given rise to a reasonable doubt on that issue. It is very important for me to remember that the question I must consider is whether, on all the evidence, the State has proved the charge I am considering against the accused beyond reasonable doubt and that if the accused's evidence, or any evidence for that matter, has given rise to a reasonable doubt, then I cannot convict him of the charge, or on any of the counts on which that reasonable doubt has arisen. 70 Further, even if I were not to accept the accused's evidence and to reject that evidence it does not follow automatically that I convict the accused of the offence charged. The accused does not have to prove anything. I only deliver a guilty verdict if on all the evidence the State has proved the charge beyond reasonable doubt. 71 If I do not believe the accused, then I should put his testimony to one side. 72 The question will remain, has the State, upon the basis of evidence that I do accept proved the guilt of the accused beyond reasonable doubt.12 11 Liberato v The Queen (1985) 159 CLR 507. 12 Thorne v The State of Western Australia [2006] WASCA 218 [8]. -- 14 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 15 73 In summary: (a) First, if I believe the evidence of the accused, obviously I must acquit him. (b) Secondly, if I find difficulty in accepting the evidence of the accused, but think that it might be true, then I must acquit. (c) Thirdly, if I do not believe the accused, then I should put his testimony to one side. The question will remain; has the State, upon the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt? Multiple counts 74 There are 12 counts on the indictment. I must consider each account separately. When I look at one count, I must consider only the evidence that is relevant to that count. My verdicts do not have to be the same in each charge. If I find the accused guilty of one, it does not follow that he is guilty of another charge. Having considered all the evidence, I may find the accused guilty of all charges or not guilty of all charges, or guilty of some and not guilty of other of the charges. 75 I must not draw an inference against the accused or make any conclusions against him or be prejudiced against him because there is more than one charge. The indictment 76 To prove each charge or count the State must prove each of the following matters beyond reasonable doubt. 77 Before moving on I should explain the period during which each offence is alleged to have occurred and the place at which it is alleged to have occurred are specified because the State is required to identify the occasion on which the alleged offence is said to have occurred with sufficient detail to enable the accused to meet the charge brought against him. The State does not have to prove beyond reasonable doubt that the offence was actually committed during the period or at the place specified in the indictment. However, because of the age of the complainant, 9 - 14 years, at the time the offences are alleged to have been committed and the period of time which has elapsed since the offences were alleged to have been committed, the period of time and the place where each of the incidents are alleged to have occurred has some significance which I will explain later. -- 15 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 16 Unlawfully and indecently dealing with a child under the age of 14 years - Criminal Code (WA) s 183 (repealed) - Counts 1, 2, 3, 6, 7, 8, 10 and 12 78 I first turn to counts 1 - 3, 6 - 8 and 10 and 12, all of which allege the accused unlawfully and indecently dealt with a child under the age of 14 years. 79 Count 1 alleges the accused unlawfully and indecently dealt with Ms C by touching her leg with his penis. Count 2 alleges he unlawfully and indecently dealt with Ms C by touching her in the course of undressing her. Count 3 alleges that in a separate incident the accused unlawfully and indecently dealt with the complainant by washing her naked body. Count 6 alleges the accused indecently dealt with the complainant by licking her vagina. Count 7 alleges the accused unlawfully and indecently dealt with Ms C by exposing her vagina, and count 8 alleges in the same incident the accused further unlawfully and indecently dealt with the complainant by penetrating her vagina with his finger. Count 10 alleges the accused unlawfully and indecently dealt with Ms C by touching her breast with his hand. Finally, count 12 alleges the accused unlawfully and indecently dealt with the complainant by introducing his penis into her mouth. 80 To prove each of those counts the State must prove each of the following five matters beyond reasonable doubt. 1. Identity. 2. The accused 'dealt with' the complainant Ms C. 3. The accused indecently dealt with Ms C. 4. The accused unlawfully dealt with Ms C. 5. Ms C was under the age of 14 years. 81 I will now explain each of those matters in more detail. 82 The first is identity. 83 The person named in the charge is the accused person PJN. The State must prove that the accused did the things that it says constitutes the offence and that it was not some other person who did the acts the State alleges occurred. -- 16 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 17 84 There is no issue in relation to this element. Although the accused denies he did any of the acts which are alleged to have occurred and denies the acts occurred, there is no issue that if I am satisfied beyond reasonable doubt the incident occurred the offender was the accused and it was not someone else who did the things alleged. 85 Secondly, the State must prove the accused 'dealt with' the complainant Ms C. The words 'deal with' include any physical contact - touching for example. You also deal with someone when you act towards them or treat them in some particular way. 86 Thirdly, the State must prove the accused dealt with Ms C indecently. Something is indecent if in all of the circumstances in which it occurred it is unbecoming or offensive to common proprietary. This is to be judged in all of the circumstances taking into account the context in which the act occurred. 87 Fourthly, the State must prove that the accused unlawfully dealt with Ms C. The word 'unlawful' can have many meanings. In this context 'unlawful' means 'illicit', or in other words, sexual conduct outside the bonds of marriage between a man and a woman. 88 There is no issue in relation to these second, third and fourth elements. Although the accused denies any of the incidents occurred, there is no issue that if I am satisfied beyond reasonable doubt the incident occurred as described by the complainant the accused unlawfully and indecently dealt with her. 89 Fifthly, the State must prove that Ms C in each count was under the age of 14 years. I have the evidence of the birth certificate of Ms C (Exhibit 40) which states she was born in August 1974. She was therefore aged 9 years at the time the incidents in counts 1 - 3 are alleged to have occurred and 9 or 10 when the incidents the subject of counts 6 - 8 are alleged to have occurred, 10 when the incident the subject of count 10 is alleged to have occurred and aged 13 when the incident the subject of count 12 is alleged to have occurred. 90 There is no issue that at the time these incidents are alleged to have occurred the complainant was a child under the age of 14 years and I have little difficulty in being satisfied beyond reasonable doubt the State has proved this element in each count. -- 17 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 18 Unlawful carnal knowledge - Section 185(1) Criminal Code (WA) (repealed) - Counts 4 and 11 91 I now turn to counts 4 and 11 each of which alleged the accused had unlawful carnal knowledge of Ms C when she was a child under the age of 13 years. 92 To prove each of those counts the State must prove each of the following four matters beyond reasonable doubt: 1. Identity. 2. The accused had carnal knowledge of Ms C. 3. The accused had 'unlawful' carnal knowledge of Ms C. 4. Ms C was a child under the age of 13 years. 93 I will now explain each of those matters in more detail. 94 The first is identity. 95 The person named in the charge is the accused person, PJN. The State must prove that the accused did the things it says constitutes the offence and that it was not some other person who did the acts the State alleges occurred. 96 As I have earlier explained there is no issue in relation to the element of identity. 97 Secondly, the State must prove the accused had carnal knowledge of the complainant Ms C. 98 A man has carnal knowledge of a female when he penetrates her vagina with his penis. Any degree of penetration of the outer lips of the vagina is sufficient. It is not necessary for the female's hymen to be ruptured. Nor is it necessary for the man to ejaculate.13 99 Carnal knowledge means sexual intercourse.14 100 Carnal knowledge is complete upon penetration.15 13 Christophers v The Queen (2000) 23 WAR 106, 122. 14 Macquarie Dictionary (5th ed). 15 Criminal Code s 6. -- 18 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 19 101 Thirdly, the State must prove that the accused had carnal knowledge of Ms C unlawfully. 102 The word 'unlawful' can have many meanings. 103 In this context 'unlawful' means 'illicit', or in other words, sexual conduct outside the bonds of marriage between a man and a woman.16 104 Fourthly, the State must prove that at the time of the offence Ms C was under the age of 13 years. 105 I have earlier referred to the birth certificate establishing Ms C was born in August 1974. She was therefore aged 9 when the offending the subject of count 4 is alleged to have occurred and 10 when the offending the subject of count 11 is alleged to have occurred. Again, I have no difficulty in accepting the State has proved this element of the offence alleged beyond reasonable doubt. 106 Again, there is no issue that if I am satisfied beyond reasonable doubt that each incident as described by the complainant occurred, the accused had unlawful carnal knowledge of the complainant when she was a child under the age of 13 years. The issue is whether the incident occurred. Whether I am satisfied beyond reasonable doubt the incident occurred as described by the complainant. Carnal knowledge against the order of nature - Section 181 Criminal Code (WA) (repealed) - Counts 5 and 9 107 I now turn to counts 5 and 9 each of which alleges the accused had carnal knowledge of the complainant against the order of nature. 108 To prove these charges the State must prove each of following three matters beyond reasonable doubt: 1. Identity. 2. The accused had carnal knowledge of the complainant. 3. The accused had carnal knowledge of the complainant against the order of nature. 109 I will now explain each of those elements in greater detail. 16 HMA v Watson (1885) 13 Ct of Sess Cases 6 as cited in Carter's Criminal Law of Queensland s 215.10; R v Chapman [1959] 1 QB 100; R v Smith [1970] NZLR 1057; Houghton v The Queen [No 2] [2004] WASCA 20 [24]. -- 19 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 20 110 Again, the first element is identity, that is, that the person named in the indictment PJN is the person who did the acts which constitute the offence. The State must prove beyond reasonable doubt that it is the accused person and not someone else who did the things that it says constitute the offence. 111 Although the accused denies he committed any of the acts alleged against him and denies the incidents the subject of counts 5 and 9 occurred, there is no issue in relation to the identity element. 112 Secondly, the State must prove that the accused had carnal knowledge of the complainant. 113 A man has carnal knowledge of a female if he penetrates the vagina/or anus of the female with his penis. 114 Carnal knowledge means sexual intercourse.17 115 Carnal knowledge is complete upon penetration.18 116 Any degree of penetration of the vagina or anus is sufficient. 117 The third element the state must prove beyond reasonable doubt is that the accused had carnal knowledge of the complainant against the order of nature. 118 The State alleges that the accused, PJN had carnal knowledge of the complainant Ms C by penetrating Ms C's anus with his penis. 119 As a matter of law, for a male to penetrate the anus of a female with his penis was at the relevant time an act against the order of nature. 120 Penetration alone without ejaculation is sufficient to constitute the offence.19 121 The accused denies he committed any of the acts alleged against him and denies the incidents occurred. The defence says I cannot be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of the complainant of what she says the accused did to her, particularly having regard to the significant period of time of over 40 years when the earlier offences are alleged to have occurred and there was no reporting of the incidents at the time they are alleged to have occurred. 17 Macquarie Dictionary (5th ed). 18 Criminal Code s 6. 19 R v Reekspear (1832) 1 MOOD 342; (1832) 168 ER 1296. -- 20 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 21 122 The accused does not have to prove anything in this trial. However, the accused says that it is implausible the incident at Cottesloe Beach would have occurred, especially in the circumstances as described by the complainant when there were other people around, swimming or on the beach, and the complainant would have been visibly upset. In relation to the incident the subject of count 5 the accused also says it is implausible the incident would have occurred in such a public place in the carpark of the units in which he lived when there were very few other cars. The accused says it is implausible he would have risked others walking by and seeing or hearing what was happening in circumstances when he knew many of the residents in the unit complex. Consent 123 The indictment does not refer to the child named on the indictment not consenting to the sexual activity alleged and I have not referred to the absence of her consent. The State does not have to prove that the child did not consent to the sexual activity alleged. 124 That is because the law prohibits sexual activity with a child by an adult in the circumstances of these charges whether or not the child consented to the sexual activity. Delay in complaint - Section 36BD Evidence Act 1906 (WA) 125 The complainant was cross-examined as to why she made no immediate complaint to the people to whom you might expect her to have complained in the circumstances. The inference in that line of questioning is that the events did not in truth happen because if they had happened, the complainant would have complained immediately or in all events sooner than she did. 126 These questions were proper and the answers to them need to be considered by me in assessing the complainant's truthfulness. 127 Counsel for the defence submitted that it is inherently unlikely that a person such as the complainant would have failed to make immediate complaint if these things had happened to her. 128 Delay is a relevant matter. It is something for me to consider. It is for me to weigh its significance. -- 21 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 22 129 But absence of complaint or delay in making a complaint that one has been sexually assaulted does not necessarily indicate that the matters complained of did not happen. 130 A person such as the complainant might have good reasons for not complaining. Bearing that in mind, it is for me to determine what degree of significance to give to the delay in complaining. 131 The complainant said she was scared of the accused. She also said she did not have a close relationship with her mother who was not nurturing of her. For the first nine years of her life she lived with and was raised by her grandparents with whom she had a good relationship. She lived apart from her mother after her mother married the accused. She felt she was alone in Australia and felt that she did not have anyone to whom she could turn or in whom she could confide. 132 Absence of complaint or delay in complaining does not necessarily mean that the allegation that the offence was committed is false. There may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of the offence alleged. 133 I place no weight on the delay in the complainant reporting her allegations to police in assessing the reliability of her evidence and her credibility as a witness. 134 The main relevance of the delay in reporting the allegations in the circumstances of this case is the impact the delay has on the accuracy, reliability and the credibility of the memory of the complainant about what she says happened and the significant difficulties and hurdles the accused now has in being able to adequately test the evidence of the complainant because of that long delay. Section 106HB and s 106P Evidence Act 1906 (WA) warning as to evidence of visually recorded interview, visually recorded hearing or from remote room 135 The complainant, who was a child when the offences were alleged to have been committed but is now an adult gave evidence by video link from another room. 136 The giving of evidence in these ways is a routine practice of the court. -- 22 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 23 137 I do not draw any inference as to the accused's guilt or any inferences against the accused from the court's use of these routine procedures. 138 I assess the evidence of the complainant in exactly the same way that I consider the evidence of other witnesses who gave evidence in court. Prior inconsistencies 139 A prior statement of a witness will be 'inconsistent' with his or her evidence if there are discrepancies or divergences between the statement and the evidence. 140 For example, where a witness has made a prior statement in which he or she gave an account of an event or transaction that is in issue in the proceedings, and the witness gives evidence of the event or transaction which omits material facts contained in the previous account, the prior statement will be 'inconsistent' with his or her evidence. 141 There are two things I note about that evidence and evidence of that nature where the complainant was asked about statements or things she said before this trial. 142 The first is that to the extent that the content of a statement made by a witness is inconsistent with that witness's evidence, the inconsistent contents of a statement are not in any way part of the evidence at this trial. It is the complainant's evidence on oath or affirmation which I saw her give during the trial which is the evidence I consider. 143 The second is that if I find the complainant has previously made a statement inconsistent with her evidence, then that fact is a matter I can take into account in considering her credibility. 144 An inconsistency can also consist of divergence and contradictions between what a witness says about an event in evidence-in-chief and later in cross-examination and also between what one witness says about an event and what another witness says about the same event. 145 For reasons which I will explain, I have concluded there are many inconsistencies in the complainant's evidence which are significant and which adversely impact upon the reliability of her evidence and her credibility as a witness. -- 23 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 24 English language difficulties 146 English is not the first language for either the complainant or the accused. When the family moved to Perth in 1983 neither of them spoke English. At the time Ms C was aged 9 and the accused was an adult. They both attended specialist English language classes when they first arrived in Perth. 147 My impression is that the complainant is far more proficient and fluent in the English language than the accused. The complainant spoke confidently in English and was able to well understand and respond to questions asked of her by both the prosecutor and the defence counsel. On the other hand the accused, while generally able to understand the questions asked of him, by both his own counsel and the prosecutor, at times had some initial difficulty or hesitation in responding to a question when it seemed he was uncertain what he was being asked, and on occasions it was necessary for counsel to ask the question in a different way. The accused's answers were also not as eloquently expressed as they might have been if he was fully fluent in English. However, he generally understood and was able to respond to questions asked of him by both counsel. 148 His understanding of the questions asked of him was also to some extent inhibited by him having some hearing difficulties and occasionally he placed a hand to his ear prompting the counsel to speak more loudly when asking questions. However, any hearing difficulties from which he suffered were adequately managed by counsel speaking more loudly. The evidence 149 Ms C is aged 51. She was born in Chile in August 1974.20 Her parents, who never married, had separated by the time she was born. 150 She was raised by her maternal grandparents in Chile until the age of 9 when, with her mother and the accused, she moved to Australia.21 Her mother married the accused in 1977, and he became her stepfather.22 20 ts 63; Exhibit 40. 21 ts 63. 22 ts 63. -- 24 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 25 151 Her mother and the accused had two sons together, Rodrigo, born in 1977 and Mauricio, born in 1981. They lived with their mother and their father, the accused, but Ms C remained living with her maternal grandparents to whom she became close. She did not live with her mother and the accused until they moved to Australia in October 1983.23 152 When the family moved to Perth they initially lived at a house in Huntingdale with the accused's sister and husband and their three children.24 The Huntingdale house had three bedrooms, a bathroom, a living room, a kitchen and a laundry. The complainant's aunt and her aunt's husband turned the living room into their main bedroom, and the main bedroom was taken by her mother and the accused. Ms C slept in a bedroom with her female cousin. They lived at the Huntingdale house for about three months until after Christmas.25 Reliability of the complainant's memory and her credibility as a witness 153 For the reasons I am about to explain, I first turn to consider whether the State has satisfied me beyond reasonable doubt of the offending which is alleged to have occurred at Cottesloe Beach, the subject of counts 7 - 9, and then whether the State has satisfied me beyond reasonable doubt of the allegations about an incident at the Mount Hawthorn Shopping Centre, the subject of counts 10 and 11. I will then turn to consider the State case in relation to the remaining counts. 154 My findings in relation to the allegations about an incident at Cottesloe Beach, the subject of counts 7 - 9, and the allegations regarding an incident alleged to have occurred at the Mount Hawthorn Shopping Centre, the subject of counts 10 and 11, cause me to have reservations and doubts about the reliability of Ms C's evidence concerning the allegations in the other counts on the indictment and her credibility as a witness. Her confused and contradictory evidence about what she said occurred in each of those incidents, together with the inconsistencies between her evidence and prior statements she made as to what happened in relation to those incidents, infect her evidence as a whole. Although I must look at each count separately and when looking at one count only consider the evidence relevant to that count, I have formed the view that because her memory is so unreliable as to 23 ts 64 - ts 65. 24 ts 66 - ts 67. 25 ts 67. -- 25 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 26 what she said occurred at the Cottesloe Beach and Mount Hawthorn Shopping Centre, it adversely impacts upon the credibility of her evidence in relation to the incidents alleged in the other counts on the indictment and her evidence that the accused regularly and persistently sexually offended against her at the Yokine and Padbury houses. Counts 7 - 9 155 Ms C said that while they were living at Tuart Hill there were many instances that they used to go on family trips to Cottesloe Beach. On one occasion the accused forced her to go down to the beach from the top grassed area where the kids used to play ball and the families had their barbecues before going down to the beach area. The accused forced her into the water 'I guess to a level where our waists, at that time, it would have been right to my shoulders I guess, the water was actually up to my shoulders'.26 The accused made her face towards the beach with her back to him and the accused,27 started to undress or part my bathers so that he could actually digit -digitally start fondling and penetrating me vaginally and he proceeded then to rape me with his erect penis and hold me against him so I couldn't get away. 156 She was at the beach with her whole family, her mother, two brothers, her aunt who is the accused's sister and her aunt's husband, their three children and another family. She was wearing one-piece bathers and the accused was wearing shorts or bathers. She could not remember whether the accused said anything to her of why he wanted her to go into the water, but she remembered him grabbing her by the hand and taking her down to the water.28 157 She did not know how to swim.29 158 The accused pulled her bathers to one side:30 And then he proceeded to - to - with his erect penis to actually rape me vaginally. Did he do something before then?---He didn't want me to go so he put his arm around my waist and he was trying to hold me closer to him and he ejaculated inside of me 26 ts 82. 27 ts 82. 28 ts 82. 29 ts 82. 30 ts 83. -- 26 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 27 All right. Before you said that he touched your vagina with his finger - - - ?---Yes. - - - what - what did he do with his finger?---He penetrated me. And what did he penetrate?---My vagina - - - All right?---- - - and anus, I guess. He was trying to get, I guess, ready or - I don't know, he was trying to - he was actually wanting to - - - So you said he penetrated your anus, what did he penetrate your anus with?--- His penis. His penis? And you said he ejaculated?---Yes. 159 She tried to get away from the accused even though she did not know how to swim and tried to make her way towards the edge of the water. She was in a lot of pain.31 160 Later in her evidence-in-chief when Ms C was asked whether there were other people around in the water at the time she remembered there were other people around about a metre or two metres from her and the accused, but all she remembered was actually trying to get away and trying to get to the shore even though she did not know how to swim. 161 This was another example of Ms C not directly responding to a question and giving unnecessary and unsolicited answers to a question. 162 Her evidence about what she said occurred at Cottesloe Beach was confusing and contradictory. Initially she said the accused fondled her vagina with his fingers and digitally penetrated her vagina before raping her with his penis. She then said he raped her vaginally with his penis and ejaculated inside her. She then said he penetrated her anus with his penis and ejaculated. She said 'I guess' he was trying or wanting to penetrate her anus. She seemed very uncertain about the incident and what happened. Having initially said the accused penetrated her vagina with his penis and ejaculated she then said he penetrated her anus with his penis and ejaculated without clarifying the contradiction. 163 That confusion and uncertainty as to what she said happened was compounded in her cross-examination. 31 ts 83. -- 27 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 28 164 In cross-examination Ms C denied she never went to Cottesloe Beach and said that with her family and with her aunt and her cousins they did go to Cottesloe Beach on Sundays or on the weekends.32 She described Cottesloe Beach as very calm like a pool. There were very little waves or surf.33 She confirmed that at the time she said the incident occurred at Cottesloe Beach she could not swim. When she went into the water, she stayed close to the shore and only walked to a depth up to her waist.34 165 She did not have a memory of the Cottesloe Beach pylon.35 Nor could she recall there being a pavilion at Cottesloe Beach.36 When it was put to her that her family normally went to Rockingham Beach she did not directly respond to the proposition and said that she could not remember names, but she did remember Cottesloe.37 When she was asked whether she could remember going to Rockingham Beach she said 'probably, yes' and went onto say that the family did a lot of outings and went to a lot of beaches and also to Kings Park, again not directly responding to the question asked of her. When she was again asked about Rockingham Beach she said, 'yes we probably did' and went onto say she remembered going to other beaches as well.38 When it was put to her that the reason they went to Rockingham Beach was because it was very safe and there were no waves or surf, she did not directly answer or respond to the proposition but said she remembered being on the shore and knowing her limits.39 166 Ms C was reluctant to admit she had gone to Rockingham Beach with her family. Her evidence about that was unconvincing. When she was shown a series of photographs of her, her younger brothers, her mother and the accused in various beach settings,40 she disagreed that the photographs were taken at Rockingham Beach and said she could not remember which beach it was and that they went to a lot of beaches.41 She did not accept the photograph of her family gathering on a grassed area beneath trees while barbecues were being used, which showed the accused and her uncle Rodrigo, who she recalled was 32 ts 153. 33 ts 153. 34 ts 154. 35 ts 154. 36 ts 164. 37 ts 155. 38 ts 155. 39 ts 155. 40 Exhibits 14 - 19. 41 ts 157. -- 28 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 29 visiting from Chile, was at Rockingham Beach.42 Nor did she accept that the photograph showing her, one of her brothers and either the accused or her uncle Rodrigo with his back to the photographer was taken at Rockingham Beach and said that she could not remember the photograph being taken or the name of the beach.43 167 When I asked her whether she remembered going to Rockingham Beach or not, the following exchange occurred:44 Yes, but I just want to know what's your memory? Do you remember going to Rockingham Beach or not?---Yes, I do remember going to the beaches and having barbeques, like what you saw in the photo. Yes, I'm not sure that's an answer to the question I've asked?---If that's Rockingham Beach, that - - - No, I'm asking you, do you remember going to Rockingham Beach specifically?---Yes. From what I can see in the photos, I remember those trees and I remember going to a lot of beaches, but yes. So is your answer, yes, you can remember going specifically to Rockingham Beach?---In those photos I am not sure if that is Rockingham Beach. Yes, I understand that, forget about the photographs, I'm just asking you, can you remember going to Rockingham Beach?---I remember - that's the thing, I don't remember the actual name of the beach - all the beaches, we went to many beaches. Okay?---But to that - Rockingham Beach, I don't remember them saying to us, 'We're going to Rockingham Beach' - - - Yes?---- - - maybe we did, but we were also - we would also go to other beaches along the coast. 168 Her evidence as to whether she could or could not remember going to Rockingham Beach was unconvincing. Rather than answering questions about whether the photographs were of Rockingham Beach and whether she did go to Rockingham Beach she deflected questions and went into unnecessary detail about various matters which did not directly respond to the question asked of her. She was unable to identify or remember any of the beaches shown in the various photographs. She remembered the incident occurred in summer on a sunny day and that she was sunburnt.45 42 ts 157 - ts 158; Exhibit 15. 43 ts 159; Exhibit 16. 44 ts 159 - ts 160. 45 ts 164. -- 29 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 30 169 Ms C agreed that in her first police statement dated 28 March 2024 she did not refer to the Cottesloe incident. She said she did not include this incident in the police statement because there were so many incidents, she left that one out even though she agreed it was a singular incident.46 Although she compiled her police statement over an extended period she said she kept on remembering incidents and thought that this incident would be quite important because it had impacted on her and she does not go to the beach because of the memories.47 170 Ms C agreed that in the written report she provided to police described as 'Detailed Incident Report', a four-page document in which she detailed various allegations of sexual assault against her by the accused, she did not mention the Cottesloe Beach incident.48 She later signed a further police statement in May 2024 in which she referred to the Cottesloe Beach incident.49 Ms C said that when she signed the first police statement she was told she could add other incidents into the statement.50 She said that when she made the first police statement there were so many incidents and she 'was trying to get as many incidents in the statement'. She said she had always remembered the Cottesloe Beach incident but when she made her first police statement, she was remembering all the incidents; however, for some reason she left the Cottesloe Beach incident out. She later remembered it and wanted to add that incident into the statement.51 She said that while the incident stood out in her memory she was trying to move forward and remembering the incidents was triggering and painful for her.52 171 She did not remember if there were other family members close by. The accused guided her out so that she could hardly reach the bottom and placed her facing the beach with him positioned behind her. The accused forced her into the water. When she was asked whether she was resisting she said she did not remember resisting and then gave the following evidence which was unresponsive to the question she was asked:53 46 ts 165. 47 ts 166. 48 ts 166 - ts 167; Exhibit 12. 49 ts 167. 50 ts 167. 51 ts 168. 52 ts 168. 53 ts 169. -- 30 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 31 I just remember being taken into the water and him raping me. And I was trying to get away. I was scared because I didn't know how to swim and I was in pain, obviously, because he was raping me anally. And I remember - all I remember is the pain and being caused to be there. I was trying to get away. I was - I wanted to get away. 172 She remembered being on her tiptoes and having to hold onto the accused because she was beyond her depth.54 173 She could not remember how many people were at the beach at the time but accepted there were probably masses of people.55 When it was put to her there were a lot of people around within two metres she initially responded directly to the proposition but then provided unnecessary detail which was unresponsive to the proposition put to her:56 Well, there were quite - I remember quite a few people, but I can't remember exactly the number of people in that time. He was trying to be very careful because I remember him placing me in front of him and he was trying to make it seem it was normal that he was actually against me and not in a suspicious manner for other people to see what he was doing. 174 The following exchange then occurred:57 He was parting my bathers from my private area, my genitals, and all I remember was him penetrating me with his penis. That's what I remember mostly. Did he penetrate you vaginally with his fingers on this occasion?---I remember him parting with his hand and going over my genitals to separate my bathers from my private areas to - for him to penetrate me. 175 Ms C then asked for a short break. 176 After the break the following exchange occurred:58 Thank you. I was asking you whether or not, on this occasion at Cottesloe Beach - - - ?---Yes. - - - he actually digitally penetrated you. Now, do you know what I mean by that? Put his fingers into your vagina?---Yes, I do. I do know. 54 ts 170. 55 ts 170. 56 ts 171. 57 ts 171. 58 ts 172. -- 31 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 32 And did he - did he do that that day?---He was playing with, or he was parting my - while he was parting my bathers, he did digitally play with my clitoris and also my vagina. He was penetrating my vagina with his fingers to make way for his penis. What, into your vagina?---Into my anus. So he did digitally penetrate you with his fingers. Is that - - - ?---Yes, he did. - - - what you say?---Yes. 177 Referring to the actual incident Ms C said that at the time there were people maybe two metres away from her and the accused when they were in the water.59 178 Ms C said of all the beaches that she went to with her family she was only sexually assaulted by the accused once and it was at Cottesloe Beach.60 She remembered the trees at Cottesloe Beach but could not remember the type of trees.61 179 I do not accept that if Ms C had been to Cottesloe Beach she would not have remembered the pylon, the pavilion on the shore, and the groyne, all of which have been present at Cottesloe Beach for many years, and certainly preceding the 1980s, although the current pavilion on Cottesloe Beach is relatively recent. Although Ms C ultimately agreed in cross-examination, after initially saying Cottesloe Beach was not the beach her family mainly visited, that Cottesloe Beach was the beach the family mainly visited,62 I do not accept that evidence. I am not persuaded she has ever been to Cottesloe Beach. I think she has probably confused her memory of her family going to beaches where they had barbeques and when none of them knew how to swim, with Rockingham Beach which is seen in the various photographs, such as Exhibit 15, which the State concedes is probably Rockingham Beach, as are the other photographs of the accused, the complainant and her brothers swimming at a beach. 180 Although the State does not have to prove beyond reasonable doubt the place at which the offending occurred, because Ms C was so certain that the incident occurred at Cottesloe Beach and not elsewhere, and was very uncertain about whether she had ever been to 59 ts 169. 60 ts 155. 61 ts 155 - ts 156. 62 ts 174. -- 32 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 33 Rockingham Beach,63 the rejection of her evidence that the incident occurred at Cottesloe Beach has significance in assessing the reliability of her memory of what she said happened and her credibility as a witness. 181 There are too many inconsistencies and contradictions in her evidence about this incident to be able to safely rely on her evidence. Her responses to questions in cross-examination regarding the inconsistencies and the failure in her first police statement to refer to the Cottesloe Beach incident were unsatisfactory. It was clearly a significant incident. I do not accept she would not have remembered that incident and would not have referred to it in her first police statement if it had occurred. 182 If the incident had occurred, in circumstances where neither the accused nor Ms C could swim, it is likely it would have occurred in waist-deep water by reference to the accused's height. In my view it is implausible the accused would have anally penetrated a 9 or 10-year-old girl to the point of ejaculating into her anus in waist-deep water, where members of the public were nearby and members of her own family were nearby. 183 In his evidence, the accused said he had never been to Cottesloe Beach.64 He does not know how to swim and has never been swimming anywhere.65 He has been to Rockingham Beach three times and once to Hillarys.66 He identified the photographs tendered into evidence, such as Exhibit 15, as taken at Rockingham Beach but, understandably given the length of time which has elapsed, was not able to say when the photographs were taken.67 He denied he ever went into the water alone with Ms C anywhere and denied he sexually assaulted her in the water or anally raped her.68 184 PJN gave his evidence in a clear and straightforward manner regarding this alleged incident, and I accept it. It follows therefore I am not satisfied beyond reasonable doubt the State has proved the offences alleged in counts 7 - 9. 63 ts 159 - ts 160. 64 ts 339. 65 ts 339. 66 ts 339. 67 ts 341. 68 ts 343. -- 33 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 34 185 Further, I am not satisfied beyond reasonable doubt as to the reliability and credibility of Ms C's evidence about the incident alleged in counts 7 - 9. Counts 10 and 11 186 Ms C and her family moved from the Tuart Hill address to an address in Yokine when she was about 11.69 It was a bigger house with both her and her brothers having their own bedrooms.70 187 While they lived at Yokine the accused was working as a cleaner at the Mount Hawthorn Shopping Centre.71 188 On a Saturday her mother told her to go with the accused to clean the shopping centre at the end of the day. She did not want to go. They arrived at the shopping centre after hours. No one was there.72 189 The accused took her into one of the back rooms or areas of the shopping centre where there were tables and chairs. There were two big conference tables in the middle of the room. The accused made her get undressed and took off her top, her bottoms and her underwear and placed her on the table. She was lying on her back in the middle of the table. The accused started to perform oral sex on her and touched her breasts at the same time before penetrating her vagina with his penis until he ejaculated.73 (The accused is not charged with any offence related to the allegation he performed oral sex on Ms C at the Mount Hawthorn Shopping Centre). 190 Sexual activity only happened one time at the Mount Hawthorn Shopping Centre.74 191 In cross-examination Ms C was unable to identify by reference to the two photographs of the Mount Hawthorn Shopping Centre,75 and the architectural floorplan drawing of the shopping centre,76 the area where she said the incident in which the accused sexually assaulted her at the shopping centre occurred. Although she drew on the floorplan an entrance she marked as 'Entrance 2' and highlighted the 69 ts 85 - ts 86. 70 ts 86. 71 ts 86. 72 ts 87 - ts 88. 73 ts 88. 74 ts 88. 75 Exhibit 20. 76 Exhibit 21. -- 34 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 35 area through which she entered the shopping centre,77 she was unable to identify the employee area or lunchroom in which she said the incident occurred. She described the area as quite big with a lot of tables in it. It was not part of a shop itself. It was in the back area of the shopping centre, maybe a room, conference room or an employee area. It was an area to which members of the public would not normally have access.78 She remembered going through the passageway and then marked on the drawing where she recalled there was a door through which the room could be accessed.79 192 The tables in the room were big tables, and she was placed on top of one of the tables.80 The room was accessed through the entrance she marked as 'Entrance 2'.81 After going through Entrance 2 the room was accessed by turning left.82 193 The accused undressed her. She did not undress herself. She was wearing a shirt and shorts and underwear. She was placed on the table naked.83 When pressed as to whether the accused undressed her or she undressed herself she said she could not remember but she was very sure she was actually naked and placed onto the table.84 She remembered the accused pulling his shorts and underwear down to below his knees. When reminded that in her evidence-in-chief she said the accused made her get undressed she gave a non-responsive answer by saying she did not want to be there and was scared and normally she would not undress herself. She went on to say that all she remembered was being naked, lying on her back on the table and the accused raping her and touching her breasts and that after he finished, he pulled his pants up and she was in a lot of pain.85 194 When taken to her first police statement in which she said the accused made her fully undress she said she remembered telling police the details but did not know whether she did actually write that and at that moment she just remembered being naked on the table. She then said that what she told the police was true.86 77 Exhibit 21.2. 78 ts 196. 79 ts 201; Exhibit 21.1. 80 ts 204. 81 ts 204 - ts 205; Exhibit 21.1. 82 ts 205. 83 ts 210. 84 ts 210. 85 ts 210 - ts 211. 86 ts 211. -- 35 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 36 195 She was again questioned about par 153 of her police statement in which she said: This time and other times to follow [PJN] would put me down flat on my back on one of the staff tables at the shopping centre. [PJN] made me fully undress. 196 She was then asked:87 Is that what you told the police on 28 March 2025?---Well, with the wording, maybe it wasn't the correct wording, but at this time - this incident happened at this time and that's the one that I remember, and the others times that he would rape me, he would actually put me on my back, or I was actually lying on my back, all the other instances were moving forward at the Yokine and also at the Padbury house. Well, we're talking about at the shopping centre?---No, maybe the wording was not the correct phrase to use, but I - this is the most specific incident that I - that I remember being out that time, at that shopping centre, of him raping me on those tables. 197 At par 157 of her police statement Ms C said:88 [PJN] would remain standing at the end of the table and put his penis inside me, thrusting until he ejaculated into my vagina which he always did. 198 In response to further questioning Ms C said:89 He always did that at Mount Hawthorn?---No, I would have - this time, yes, he did, but he - but when he raped me he would always ejaculate inside of me, in my vagina. What I'm suggesting is that you were telling the police that this happened on multiple times at Mount Lawley90 [sic]---What I was trying to tell the police is that it happened in this - but I remember this particular instance and that when he would ejaculate into my vagina, he did - he always did when he would rape me vaginally or anally. 199 Ms C was asked whether the accused performed oral sex on her at the Mount Hawthorn Shopping Centre on that occasion and said she remembered the accused penetrating her but not performing oral sex at that time, but she did remember oral sex in Yokine. She later emphasised that she did not remember the accused performing oral sex 87 ts 211 - ts 212. 88 ts 213. 89 ts 213. 90 The reference to Mount Lawley was mistaken and counsel meant to refer to Mount Hawthorn, which was understood by the witness. -- 36 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 37 on her at that time, she just remembered the penile/vaginal penetration and the accused fondling her breasts.91 When she was reminded of the evidence that she gave in-chief:92 My back - I was actually lying there on my back in the middle of the table, and he started to perform oral sex on me, touching my breasts at the same time. and whether she agreed that that was the evidence she had given, she prevaricated and did not directly answer the question.93 When pressed, she accepted she remembered giving evidence about the details of oral sex but said she could not remember the oral sex.94 While she remembered the penile/vaginal penetration and her being fully naked she said she was having a hard time to remember everything because it was very triggering.95 200 Her evidence in cross-examination that although she remembered referring to oral sex in her examination-in-chief her concession that she could not remember the accused performing oral sex on her is telling. It reflects adversely on Ms C's credibility and the reliability of her memory of what she says happened. Although she said she apologised 'if I did', she did not expressly say she had been mistaken but instead attempted to justify what she said by saying she knew what happened and that she was 'very triggered with everything that's been said'. 201 These inconsistencies in Ms C's evidence, between the evidence she gave in examination-in-chief and her evidence in cross-examination, and inconsistencies between her evidence and what she told police in her first police statement, cause me to have doubts about the reliability of her memory of what she said the accused did to her 41 - 42 years ago when she was a child aged 10. 202 Those doubts are further heightened when regard is had to the evidence of the architectural drawing of the shopping centre which does not show any area matching the description given by Ms C of where she said the incident occurred, and Ms C's uncertainty of where the room was by reference to the architectural drawing.96 91 ts 217 - ts 218. 92 ts 218. 93 ts 218 - ts 219. 94 ts 219. 95 ts 219. 96 Exhibit 21.2. -- 37 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 38 203 Despite Ms C's denials in cross-examination that in her police statement she was referring to only the one incident occurring at the Mount Hawthorn Shopping Centre and not multiple occasions, in my view it is clear by the wording in her statement she was referring to a sexual assault happening at the Mount Hawthorn Shopping Centre on more than one occasion. Detective Kristancic said in cross-examination that her impression of what Ms C said in her police statement was that a sexual assault had happened multiple times at the Mount Hawthorn Shopping Centre. 204 The uncertainties in Ms C's recollection of what she said occurred in the incident at the Mount Hawthorn Shopping Centre and the inconsistencies in her recollections given in-chief and in cross-examination, together with the inconsistencies between her evidence and in statements she made before the trial, lead me to conclude that I am not satisfied beyond reasonable doubt the offences alleged in counts 10 and 11 are proved. 205 In his evidence-in-chief, the accused confirmed the layout of the Mount Hawthorn Shopping Centre was as shown in the architectural drawing,97 and in the photographs.98 However, the supermarket was not Target at the time he cleaned the shopping centre, it was Woolworths.99 He did not access the shopping centre through the entrance which had been marked by Ms C. He did not have keys to get into the shopping centre through that entrance.100 He entered the shopping centre through the bottom carpark walking down a flight of steps adjacent to the restaurant.101 To gain entry into the shopping centre he disconnected the alarm from the underground carpark. He did not enter through Entrance 2 marked by Ms C because that would cause the alarm to go off.102 206 He denied Ms C ever went with him to help clean the shopping centre. She only went with him once when he was cleaning the shopping centre when she was having a dress made for her for a school ball, so that she could walk to the dressmaker from the shopping centre, two blocks away.103 She never came into the shopping centre with him while he was cleaning.104 97 Exhibit 21. 98 Exhibit 20. 99 ts 344. 100 ts 345 - ts 346. 101 ts 346. 102 ts 347 - ts 348. 103 ts 348. 104 ts 348. -- 38 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 39 207 There was no lunchroom or employee area in the shopping centre.105 Neither was there a kitchen he used. He made himself cups of coffee from a hot water tap in the cleaning room which he said measured 1 m x 90 cm.106 He said it was a very small room which was used to store cleaning equipment and machines such as a polisher.107 208 He denied he put Ms C on a table and sexually assaulted her.108 209 The accused's evidence about the layout of the shopping centre and the absence of a lunch or staff area or an area containing large conference tables was confirmed by the evidence of his brother, Carlos and his friend, Jorge, who each gave evidence there was no lunchroom or staffroom or room with large conference tables. They confirmed the accused gained entry to the shopping centre through the underground carpark and that the cleaning room he used was very small. Although there were differences regarding actual measurements, they all agreed the cleaning room was small.109 210 The accused generally gave evidence in a clear and straightforward manner. He did not embellish his explanations. He willingly conceded matters about which he was uncertain, particularly having regard to the significant period of time which has elapsed between when the incidents are alleged to have occurred and when he gave evidence. He was uncertain about the locations at which some of the photographs were taken and the circumstances for the photograph, such as what event was being celebrated. His denials of the offending were clear. His evidence in relation to the allegations in counts 10 and 11 that there was no lunchroom or staffroom or an area where conference tables were located was clear, and as I have said, it was confirmed by the evidence of his brother, Carlos, and his friend, Jorge, each of whom helped him clean the shopping centre at different times over a few months. His evidence about the layout of the shopping centre and how he gained entry to it and the lack of any staffroom or conference tables was plausible. He was clear and firm in his denial of the allegations. 211 I accept his evidence. 212 I am not satisfied beyond reasonable doubt the State has proved the allegations in counts 10 and 11. 105 ts 349. 106 ts 349. 107 ts 351. 108 ts 349. 109 ts 464 - ts 465 (Carlos), ts 485 - ts 486 (Jorge). -- 39 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 40 Count 1 213 Ms C drew a sketch of the interior of the Huntingdale house for the police dated 1 November 2023 which is Exhibit 2.110 214 Ms C said the first time the accused sexually offended against her was in the undercover patio area of the Huntingdale house when she was outside playing with her brothers. The accused came outside and sat on a small wooden bench in the middle of the patio area in front of the kitchen window. The accused guided her to the bench and forced her to sit with him on his right leg while her brothers were playing on the grassed area.111 The accused sat her down on his right knee and she saw his erect penis. She did not know what to do and froze. His penis came out from the shorts he was wearing, from the right side of his leg and touched her left leg. She tried to pull away, but the accused held her next to him by holding one hand onto her waist before she was able to break away.112 215 Their backs were to the kitchen window so that no one could see them.113 216 In cross-examination, Ms C said that there were probably other people home that day, but it was just her, the accused and her two brothers in the backyard. She could specifically remember that her cousins were not there and said that they were probably at school. There were no adults in the house that she could remember.114 217 When she was asked how she came to be sitting on the accused's lap, she said he guided her towards him. He did not ask her to come and sit on his lap. He grabbed her hand. He always guided her by putting his hand around her waist or grabbing her by her wrist.115 218 She was then cross-examined about what she said in her first police statement dated 28 March 2024.116 At par 29 she said: I was with [PJN] while my stepbrothers were playing, not interested in us and not close enough to see anything. 110 ts 68. 111 ts 68. 112 ts 69. 113 ts 70. 114 ts 107. 115 ts 107 - ts 108. 116 ts 109. -- 40 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 41 219 And then at par 30 she said: [PJN] asked me to come and sit on his lap. 220 Without being asked a question Ms C said:117 Well, the one thing is he would always grab my hand and put his hand on my waist, forcing me towards him. Maybe I said 'asked' but most - all the times, he would actually grab my hand or force me with his hand on my waist towards him. 221 When it was put to her that she did not tell the police that the accused forced her, there was a long pause while she was considering her answer. She then asked the question to be repeated and said that maybe she should have added into her statement that the accused forced her to sit on his knee or grabbed her by the hand.118 222 She said the accused always wore tight shorts during summer and that she saw his erection sticking through the right leg of his shorts.119 223 She said that was the only time anything happened in the patio area of the Huntingdale house.120 224 Ms C's hesitation in answering the question when she was cross-examined about the inconsistent statement she made in her police statement, and the fact of the inconsistency, causes me to have reservations about the reliability of her memory of what she said happened on this occasion. 225 She was also asked in cross-examination about whether the accused's penis touched her. She said that she remembered feeling his erect penis on her left leg. However, she agreed that in her police statement she did not tell police the accused's penis had touched her leg. She told that to the prosecutor recently because she said she remembered the details of what happened that day.121 She said that when she gave her police statement there were so many incidents that she was trying to note down and remember all the details of and that she did remember 'every single detail' of the accused's erect penis brushing against her left leg.122 She agreed this was the first time she 117 ts 109. 118 ts 109 - ts 110. 119 ts 110. 120 ts 110. 121 ts 113. 122 ts 114. -- 41 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 42 was sexually abused by the accused.123 Although she said the touching of the accused's penis against her leg stuck in her mind, she accepted she did not put that in her police statement.124 226 For the purpose of the drafting of her police statement of 28 March 2022 she provided the police with a written report which she described as 'Detailed Incident Report'.125 There is no reference in that report to the accused forcing her to sit on his lap or to come to him and the words she used in the report were that the accused would 'ask me to come over and sit on his lap'. Ms C maintained that she remembered the accused grabbing her hand and putting his hand on her waist to make her sit on his lap.126 He made her sit on his right leg.127 It was a brief incident.128 227 Ms C agreed that the accused did not keep on exposing himself to her. However, in her incident report she stated the accused 'kept on exposing himself to me'.129 228 The following exchange between the complainant and senior counsel for the accused occurred: That's what you said for the police?---Yes, I remember writing that, actually. And now you tell us that's not true?---I'm not saying it's not true. I'm saying that these are the incidents that are - in the statement are the ones that I remember the most. Remember the most? Well, I asked you a minute ago 'Did he keep on exposing himself to you?' and you said no?---I don't have any other recollection apart from these incidents - - - Why would - - - ?---But I do remember him exposing himself or showing me his penis. What, on other occasions other than the first time on the - - - ?---The shower. Other than the patio and the shower, were there other occasions that you - - - ?---I can't remember any - I do remember the shower. That really impacted me. 123 ts 114. 124 ts 114. 125 Exhibit 12. 126 ts 116. 127 ts 117. 128 ts 117. 129 ts 117. -- 42 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 43 And the patio?---And the patio. Why would you tell the police that, in addition to those, during your - your stay with your aunty, to use your words, 'he kept on exposing himself to me'?---These are not the only times he did it. At Huntingdale?---All the time. At Huntingdale and the other residences. Let's just confine ourselves to Huntingdale for the time being. Is it true that he kept on exposing himself to you?---I can't remember the other times, but I do remember those two times. Well, if you had no memory, why did you tell the police that?---Don't know. Trying just to exacerbate your allegations?---No, cos I do remember him exposing himself, and I do remember the pain and also the - myself crying every single night. At Huntingdale?---Yes. 229 That evidence causes me to have further reservations about the reliability of Ms C's evidence. Despite saying she only remembered two times she still seemed to maintain there were other times the accused exposed himself, but she just could not remember them. It is an example of Ms C giving exaggerated evidence about what she said the accused did to her and having no, or insufficient, regard for the accuracy of what she told police. To the extent it might be suggested that she maintained in her evidence the accused regularly exposed himself to her, I reject that evidence. This evidence impacts upon the reliability of Ms C's memory and her credibility as a witness. 230 In my view, and noting that the touching of the complainant's leg with the accused's penis is a particular in count 1, it is unlikely that had this incident occurred, Ms C would not have remembered it and would therefore have included this detail in her first police statement. This failure further undermines the reliability of her memory of what she said happened. 231 In his evidence the accused confirmed that when the family moved to Australia in 1983, they stayed with his sister at the Huntingdale address.130 They stayed at the house for three or four months, including Christmas and New Years.131 130 ts 324 - ts 325. 131 ts 326 - ts 327. -- 43 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 44 232 He married Ms C's mother, in Chile in 1977 and they had two boys together born in 1977 and 1982.132 Ms C lived with her grandparents in a country town north of Santiago.133 Although the accused and Ms C's mother lived in the same country town, Ms C remained living with her grandparents.134 Although Ms C visited her mother regularly, the accused had limited contact with her because he was working.135 Ms C was not close to her mother but was close with her grandparents.136 233 When the family moved to Australia, his English was very poor, as it was for other members of the family.137 When he initially came to Australia, he did not work but studied English with his wife, travelling to the city in a bus to learn English for about three or four months.138 234 He accepted the sketch Ms C drew of the Huntingdale house represented the layout inside the house.139 235 He said there was no table in the patio area in the backyard of the house.140 In cross-examination the accused said there was no chair in the patio area and there was nothing underneath the patio.141 236 He denied he ever wore shorts at the Huntingdale house and said he wore long pants. He only wore bathers when he was at the beach but travelled to the beach wearing long pants and changed into his bathers at the public toilets.142 237 The accused denied he sexually assaulted the complainant in the back patio area.143 238 The accused's evidence that there was no chair beneath the patio and his denial of the allegation, both in examination-in-chief and in cross-examination, was given in a calm, direct and unembellished manner. In my view his evidence was believable. 132 ts 323. 133 ts 323. 134 ts 373 - ts 374. 135 ts 374. 136 ts 374 - ts 375. 137 ts 326. 138 ts 325 - ts 326. 139 ts 325. 140 ts 327. 141 ts 400. 142 ts 327, ts 397. 143 ts 326 - ts 327; ts 401 (cross-examination). -- 44 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 45 239 Given my reservations about the complainant's evidence regarding count 1 arising from inconsistencies and contradiction between the evidence she gave and statements she made to police earlier, I have concluded her memory of what she said occurred is unreliable. I have also had regard to the significant period of time, of over 40 years, which has elapsed since the incident is alleged to have occurred and when the complainant was a nine-year-old child, and the giving of her evidence at trial, has impacted upon the reliability of her memory. Although a photograph144 was taken of the children in the backyard of the Huntingdale house there was no photograph tendered into evidence showing the patio area and establishing whether there was or was not a chair underneath the patio. 240 In those circumstances, I am not satisfied beyond reasonable doubt the incident occurred as described by the complainant. Count 2 241 Ms C said there was one more incident at the Huntingdale address. Her mother had gone out and her brothers were not there. Her aunt was in the kitchen preparing food. The accused took her by her hand into the bathroom where he undressed her and undressed himself. He made her go into the corner of the shower recess and washed himself including rubbing his penis while she cowered in the corner.145 242 Her aunt saw her and the accused go into the bathroom together.146 243 She said that those are the only two times the accused exposed his penis to her at the Huntingdale house.147 244 In cross-examination Ms C could not say what time of the day the incident occurred.148 There were no other children home at the time. The only person who was home was her aunt.149 245 Ms C confirmed that the patio and bathroom incidents were the only sexual assaults which occurred in the Huntingdale house. Ms C was then taken to par 49 of her police statement which states:150 [PJN] exposing himself to me in this home occurred many times. 144 Exhibit 9. 145 ts 70. 146 ts 70. 147 ts 71. 148 ts 121. 149 ts 121. 150 ts 125. -- 45 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 46 246 The following exchange then occurred:151 And was it true?---Yes, it is. So it is true, that at that house, that is Huntingdale, he exposed himself to you many times?---I don't remember being at that house, but I do remember telling the police that he did expose himself many times Well, there it says 'at this house - home it occurred many times', is that true?---I can't remember if I - there were too many - there were too many incidents, but they're all true. You weren't just making that up - - - ?---No. - - - when you spoke to the police?---There are many incidents. Not in that house?---It started off in that house. 247 This is a further example of an inconsistency between Ms C's evidence and what she told police. It is also a further example of her making very general statements about the extent of the sexual abuse she alleges against the accused and, when she is confronted with the contradiction, not accepting that there is a contradiction or inconsistency. 248 I do not accept Ms C's evidence regarding this alleged incident as reliable. Nor do I consider it plausible that the accused would have taken Ms C into the bathroom and remained in the bathroom washing himself in Ms C's presence, in circumstances where his sister saw them go into the bathroom together. 249 The accused's sister was not called to give evidence. Of course, there is no onus on the accused to prove anything in this case and there was certainly no obligation or onus on him to call his sister to give evidence. His sister was not spoken to by the police and the investigating officer, Detective Kristancic, said she did not visit the location or ascertain whether someone in the house might have had vision of what was alleged to have occurred, because she formed the view that 40 years later, and also having regard to family dynamics, that it would not be supportive to speak to anyone who might have been at the house at the time.152 She did not speak to the aunt because she presumed that if the aunt did not say anything at the time and did not stop it at the time, she had no issue with what happened. Detective Kristancic was also considerate of the complainant and her family relationships.153 151 ts 125. 152 ts 302, ts 304. 153 ts 304. -- 46 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 47 250 Of course, I do not speculate about what the aunt may have said had she been called to give evidence. I can only reach my verdict on the evidence which has been adduced. 251 In his evidence the accused denied he ever showered with the complainant at the Huntingdale house. He denied he ever took her into the bathroom. He denied he pushed Ms C into the shower and stroked his penis and washed himself while she watched.154 252 The accused's denial of the allegation in count 2 was given in a straightforward and clear manner. His denial was not undermined in cross-examination. I accept his evidence of the denial of the allegation. 253 It follows I am not satisfied beyond reasonable doubt the State has proved count 2. Counts 3 and 4 254 The complainant described her relationship with her mother as very distant and that her mother was not nurturing or loving towards her.155 255 After Christmas she moved with her family to an apartment in a complex for immigrants in Tuart Hill. Other Chilean families were also living at the apartments. Ms C and her family lived on the top level of the apartment building in a corner apartment. The apartment had one bathroom, one toilet, a kitchen, living area and three bedrooms. 256 Ms C had her own bedroom with two single beds. She used the bed on the left of the bedroom. 257 At the Tuart Hill apartments Ms C's family became friends with the Carrasco family who babysat Ms C and her brothers from time to time. When her mother went to a wedding, Ms C and her brothers were supposed to be babysat by the Carrasco family who lived downstairs. Her stepfather, the accused, did not want to go to the wedding and stayed with Ms C in the apartment while her brothers were in the downstairs unit with the babysitters.156 154 ts 328. 155 ts 71. 156 ts 72. -- 47 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 48 258 When only Ms C and the accused were in their apartment together, the accused took her into the bathroom, undressed her and made her have a shower.157 The accused got into the shower with her and washed her.158 He then made her wrap herself in a towel and took her into her bedroom. He made her lie on her back on her bed and started touching her vagina with his fingers. He then forced his penis into her vagina, moving back and forth until he ejaculated inside her vagina. She was crying and felt a lot of pain.159 The accused then wiped her genital area with a towel and made her get dressed. He did not wear a condom.160 259 Ms GC was called as a witness by the accused. She moved to Australia in 1984 when she was 15 or 16. She lived in the Tuart Hill apartments. with her father and various brothers and sisters. They had two flats on the first level.161 260 She confirmed she was in the photographs with Ms C and her two brothers in Exhibit 5 and with her and the youngest child, Mauri, in Exhibit 10.162 She was about 17 or 18 at the time. She confirmed the accused's family lived on level 3 on the right side by reference to the photographs of the unit complex in Exhibit 13.163 261 She saw Ms C and her brothers everyday but did not look after them often. She looked after the children such as when the accused and his wife went to the shops.164 She played with the children in the grassed area in front of the apartments. She also took them to the Claremont swimming pool.165 No one else in her family looked after or spent time with Ms C and her brothers.166 She never looked after the children because of a wedding or at nighttime. She never looked after the two boys without the girl.167 157 ts 72. 158 ts 73. 159 ts 73 - ts 74. 160 ts 74. 161 ts 444. 162 ts 445 - ts 446. 163 ts 447. 164 ts 448. 165 ts 448. 166 ts 449. 167 ts 449. -- 48 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 49 262 She confirmed the accused was never home and went to work early in the morning. He would leave for work at about 4 or 5 o'clock in the morning.168 He would return home at about 6 o'clock in the afternoon.169 263 She said that Ms C was with her mother all of the time.170 264 She said that the carpark was exactly the same as it was in the photograph in Exhibit 13.171 265 Ms GC's evidence contradicts Ms C's evidence that Ms GC babysat her brothers while Ms C remained in their unit with the accused. 266 The accused said his family lived in a unit on the top level to the right of the building seen in the photograph in Exhibit 13.172 267 He remembered Sonja, who was a Uruguayan woman. She was a friend of his Ms C's mother.173 He confirmed that Sonja married but he did not think he went to the wedding. He was working. He did not remember if his former wife went to the wedding.174 268 He said he never looked after Ms C by himself.175 269 When Ms GC babysat the children she came up to their apartment and looked after the children in the apartment.176 There was never an occasion when the boys were separated from Ms C and he looked after Ms C when the boys were looked after by Ms GC.177 270 He denied he had ever had a shower with Ms C and denied he had sex with her and ejaculated into her vagina.178 271 Clearly there are some inconsistencies between the evidence of the accused and Ms GC as to where she babysat the children and the location of the carpark. However, their evidence is consistent that Ms GC never babysat the boys separately from Ms C. Ms GC also confirmed the accused left very early in the morning to go to work and worked long hours. 168 ts 449. 169 ts 450. 170 ts 450. 171 ts 451. 172 ts 331 - ts 332. 173 ts 336. 174 ts 336. 175 ts 337. 176 ts 337. 177 ts 337. 178 ts 337. -- 49 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 50 272 I think the evidence of the accused in which he denied ever being alone with Ms C in their apartment while the boys were being separately babysat by Ms GC, which is to some extent confirmed by Ms GC's evidence, might be true, which provides support to his denial of the sexual offending the subject of counts 3 and 4. Further, having regard to my findings about the credibility and reliability of the evidence of Ms C, particularly in relation to the incident the subject of counts 7 - 9 and 10 and 11, I am not satisfied beyond reasonable doubt that the incident described by Ms C the subject of counts 3 and 4, occurred. In my view, the incident happened so long ago, over 40 years ago, and also having regard to the young age of Ms C at the time, I am not satisfied beyond reasonable doubt of the reliability of her memory of what she said occurred. That is, I am not satisfied beyond reasonable doubt the State has proved the offending the subject of counts 3 and 4. Count 5 273 Ms C said she remembered other incidents occurred at the Tuart Hill address.179 She recalled a particular incident happened when the accused took her downstairs to the family's Mazda parked in the carpark of the apartment complex. The car was an orange Mazda Capella.180 A photograph of the motor vehicle was tendered into evidence and is Exhibit 4. It was their first family car.181 Her mother and brothers were in the apartment. The accused made Ms C get into the backseat of the car and was followed by the accused who sat in the middle of the backseat. He undressed Ms C from the waist down, taking off her shorts and underwear. He exposed his penis which was erect and sat her on top of him. She was facing the front of the car while she was positioned on top of the accused.182 The accused inserted his penis into her anus until he ejaculated inside her anus.183 The anal penetration was, she said, very painful.184 She did not know why the accused wanted her to go downstairs. She did not know what the accused wanted her to do.185 The incident did not last for very long.186 179 ts 77. 180 ts 78. 181 ts 78. 182 ts 78. 183 ts 77 - ts 78. 184 ts 78. 185 ts 78. 186 ts 78. -- 50 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 51 274 In cross-examination Ms C said the incident happened when it was nighttime, at dusk, or very late in the afternoon.187 Before the incident she and the accused had been upstairs with the rest of the family. She could not remember the purpose of going to the car.188 She accepted it was unusual for her to go out of the apartment at night.189 By reference to the photograph which is Exhibit 13 she said the Mazda Capella was parked in the carpark in an area where the cars are seen in Exhibit 13, somewhere in the middle.190 The accused made her get into the back seat of the car and after he sat in the middle of the back seat he positioned her on top of him and anally penetrated her, which caused her a great deal of pain.191 The accused undid her shorts and took off her shorts and knickers leaving her t-shirt on. Although normally people would be coming and going in their cars, she did not see anyone at that time.192 She thought the incident occurred in the summer because she was wearing shorts and a t-shirt.193 She was crying after the incident because of the pain.194 275 In his evidence-in-chief, the accused said that at the time they lived at the Tuart Hill apartment the parking was behind the letterboxes and not to the right of the apartments looking at them from the road as shown in the photograph which is Exhibit 13.195 He said there were only three cars which were parked in the carpark at the time.196 He denied he anally penetrated Ms C in the car or anywhere.197 276 In her evidence, Ms GC, who lived at the Tuart Hill apartment at the same time as the accused's family,198 said that the carpark at the time was exactly the same as seen in Exhibit 13 except that there was no fence.199 There were not many cars in the carpark at that time because not many people had a car as they were all immigrants. Her family did not have a car.200 187 ts 146. 188 ts 146. 189 ts 146. 190 ts 148. 191 ts 149. 192 ts 149. 193 ts 151. 194 ts 152. 195 ts 338. 196 ts 338. 197 ts 338. 198 ts 445. 199 ts 451. 200 ts 453. -- 51 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 52 277 Although there are inconsistencies in the evidence of the accused with the evidence of the complainant and Ms GC as to the location of the carpark at the time, that inconsistency is not significant. However, I accept the evidence of the accused, which is confirmed by the evidence of Ms GC, that at the time there were very few cars parked in the unit complex carpark. 278 Ms GC also gave evidence that when she looked after the three children they played in a grassed area three times a week which is near the carpark area, to the right of the building seen in Exhibit 13. 279 In my view it is implausible the accused would have taken a 9 or 10-year-old girl from her unit, where her mother and brothers remained, to his car which would have been one of very few cars in the carpark in the early evening near a playground during summer and have engaged in sexual activity with Ms C in such a public area where the risk of observation and detection would have been high. Ms C said she was in extreme pain and crying after the incident. In my view it is unlikely her distress would not have been observed by her mother when they returned to the unit. Of course, her mother did not give evidence and I must not speculate about why the mother did not give evidence nor what she might have said had she given evidence. However, there is no evidence which confirms Ms C's account that she was distressed after the incident, suffering significant pain and crying. 280 Although Ms C's evidence as to the incident of anal penetration is clear, her evidence about the surrounding circumstances, for example, how and why she came to be taken by the accused from the unit to the car and what happened afterwards, is so vague and lacking in detail, perhaps understandably so given the significant lapse of time of approximately 42 ½ years to when she gave evidence about the incident, that I cannot safely rely on it. Therefore, I am not satisfied beyond reasonable doubt the incident as described by Ms C, which is the subject of count 5 on the indictment, occurred. 281 Further, I think the evidence of the accused, when he denied the incident occurred and that he anally penetrated Ms C, might be true. It therefore follows I must acquit him of count 5. Count 6 282 Prefacing a question by reference to Ms C having given evidence about vaginal and anal penetrations she said occurred at the Tuart Hill address, the prosecutor asked the complainant whether any other -- 52 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 53 penetration or anything else occurred at that address in the apartment. Ms C said she remembered another occasion when she was made to sleep on a mattress on the floor in her older brother's bedroom. She could not remember why she was made to sleep in that room. During the night the accused started touching her and penetrating her vagina with his fingers (the accused is not charged in relation to this activity).201 The accused did not do anything else to her when she was sleeping on the mattress on the floor.202 283 She did not remember when that incident happened other than it was very late at night.203 284 In response to a further question asked of her by the prosecutor as to whether anything else happened at that address, Ms C said that while they were living at the Tuart Hill address the accused hugged her and touched her breasts and grabbed her backside. He hugged and kissed her, fondled her breasts and grabbed her by her backside and her waist whenever there was no one around.204 She said she was scared but she could not tell anyone because there was no one to tell.205 285 When she was specifically asked whether anything else happened in her brother's room, Ms C initially said 'I do remember him orally' and then there was a lengthy pause in her evidence before she said 'that's all I can remember for now, it's - it was a lot of things actually that happened, but the touching and sometimes he would perform oral sex on me'.206 286 She was then asked:207 All right. Do you remember an occasion that he performed oral sex on you?---Yes, he - there were many occasion that he did perform oral sex on me but in the other instances that - in other houses as well. Okay. Do you remember an occasion that occurred in your brother's room?---Yes, actually, when he - when we - when I was made to sleep in that room he would go down - he would actually perform oral sex on me - - - All right. And do you remember - - - ?---- - - with his tongue. 201 ts 80. 202 ts 80. 203 ts 80. 204 ts 80. 205 ts 80. 206 ts 80. 207 ts 80 - ts 81. -- 53 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 54 - - - do you remember an occasion that he did it in that room?---Yes, when I was sleeping in that room that time, I remember him fondling me or touching me and - vigorously penetrating me, my vagina. He would - he would try other things orally - oral sex, on me And what - what does oral sex mean to you?---He used - kissing my vagina with his lips and his tongue, I guess. Penetrating my vagina with his tongue, he would - - - 287 Ms C was next asked:208 Do you know when this occasion occurred relative to moving into that address?---Not date wise, but I do remember the harassment and the rapes or the times that it happened, and then after this address it became more and more constant. What became more constant?---The rape and the oral sex and the touching and the groping in any location possible, if I was washing dishes he would grope me and try to fondle my breasts. 288 Ms C was very uncertain in her recollection of what she said happened on this occasion. Initially, when asked whether anything happened in her brother's room she said 'she remembered him orally' but that was all she was able to remember 'for now' but a lot of things happened and that sometimes the accused would perform oral sex on her. 289 Ms C had a tendency not to directly respond to questions asked of her but to give long answers to simple questions and talk in very general terms about things she said the accused did to her. An example is when she was asked when the incident in which the accused performed oral sex on her on the mattress in her brother's bedroom occurred, she said she did not know, but then went on to give evidence about other sexual conduct against her when she was not asked to give that evidence, including the accused groping her and trying to fondle her breasts when she was washing dishes.209 290 Ms C's recollection of what she said occurred in her brother's bedroom when she was sleeping on a mattress on the floor was hesitant, uncertain, confusing and unconvincing. She eventually gave evidence about the accused performing oral sex on her in her brother's bedroom after much prompting by the prosecutor and attempts to redirect Ms C to whether anything happened in her brother's bedroom when she kept talking in generalities and about what the accused 'would' do to her on a 208 ts 81. 209 ts 81. -- 54 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 55 regular basis. Both in evidence-in-chief and in cross-examination she kept referring to many incidents happening at the Tuart Hill apartment when the accused would grope her, touch her breasts and touch her backside.210 She could not remember where her brothers were sleeping at the time the incident is alleged to have occurred. She thought her younger brother was still sleeping in her parents' bedroom and could not remember where her older brother, whose bedroom it was, was sleeping. Although she had her own bedroom, she could not remember the reason why she was sleeping on a mattress on the floor of her brother's bedroom. She remembered there being one bed in her brother's bedroom.211 291 When she was pressed in cross-examination about whether there was an incident of oral sex in her brother's bedroom, the following exchange occurred:212 You told us yesterday that there was an incident of oral sex in that room - - - ?---Yes. - - - where he performed oral sex on you?---I - I was very - I remember being scared at the time. Well, was there an occasion where he performed oral sex on you in your brother's room?---I remember him touching me. Sorry?---I remember him touching me and - - - Was there an occasion where he performed oral sex on you in your brother's room at Tuart Hill?---I remember that day that I was made to sleep on that bed and he - I'm sorry, I - - - Do you want me to ask the question again?---No. I need a - a small break, please. I'm - - - 292 After the break, senior counsel for the accused returned to this line of questioning and the following exchange occurred:213 Do you say that in your brother's room on one occasion he also digitally penetrated you?---I don't know, no, it was oral, I don't - can't remember what - - - I want you to think about that. On - when you were sleeping on a mattress on the floor in your brother's room at Tuart Hill, did he digitally penetrate you?---I remember him - I don't remember, I remember being forced to have oral - he was orally abusing me, he was - he was performing oral sex on me. 210 ts 81, ts 185. 211 ts 185. 212 ts 186. 213 ts 188. -- 55 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 56 Is this during the night?---Yes. And he done it when your brother wasn't there?---Well, when everyone - I believe everyone - it was late, everyone was - I guess everyone was asleep, I can't say where everyone else was, if they were or not asleep, but I do remember it was night-time. Do you think your brother was probably in the room?---Not in that room. Well, it was his room?---I don't know why - I can't remember why. And you were sleeping on the floor?---Yes. Which would suggest - perhaps indicating he was sleeping on the bed?- -- Sorry? Which might - might indicate he was sleeping on the bed?---All I remember is being - is being - that he actually performed oral sex on me, that's all I remember, but - in that instance. Just oral sex?---Yes. Not - no digitally - digital touching of your genitals?---I don't remember if he did, maybe he did, but I remember him with his tongue, with his mouth, on my vagina, on my clitoris, down in my private areas. 293 Senior counsel for the accused then reminded Ms C of the evidence she gave in-chief about the accused digitally penetrating her in her brother's bedroom and the following exchange occurred:214 And do you - is that - the evidence you gave true?---Yes, well, I don't - all I remember - I try not to remember much - for me it's very triggering, remembering all the incidents, but I do remember him performing oral sex and touching me on my genital area. Digitally penetrating you whilst you were on the mattress?---He was - I guess he was trying to - - - I don't want you to guess, I just want to tell what you remember?--- That's what I remember. So you do remember now digital penetration of your vagina whilst you were on that mattress?---To - I am remembering all the incidents and I'm trying to explain what happened most all the times, it's just very triggering for me to remember due to the pain and upset that he caused me, that he has caused me up to now. 214 ts 189. -- 56 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 57 294 This is a further example of Ms C not directly responding to the questions asked of her, particularly in cross-examination, but rather repeatedly referring to sexual abuse she said happened regularly. 295 Ms C's evidence about whether she was digitally penetrated in her brother's bedroom was uncertain and confusing. In her cross-examination she appeared to resile from her evidence-in-chief that there was a digital penetration. Her evidence about whether she could specifically recall an incident of oral sex being performed on her in her brother's bedroom was very unclear. 296 Further, if she was sleeping on a mattress in her brother's bedroom it was likely her brother would have been sleeping in his bed. In my view, it is unlikely the accused would have been so brazen as to sexually abuse Ms C on a mattress in her brother's bedroom if her brother was asleep nearby in his own bed. 297 This incident was revisited in re-examination and the following evidence was given:215 And you were asked some questions - you - I think you also said that [PJN] digitally penetrated you on the mattress?---He would have. Did these two acts occur on the same occasion?---This on - sorry, which two occasions? The - - - So you talked about being on the mattress and [PJN] performing oral sex on you in your brother's room?---Yes. In Tuart Hill?---I remember sleeping in that room on the floor. Yes. And you also - - - ?---And - - - - - - gave evidence that he digitally penetrate - - - ?---Yes. Digitally penetrated you. Did they - those two things occur on the same day?---I remember - I could not say if that happened on the same day, but I do remember being in that room and he molested me. I'm sorry, I'm just - I cannot say - - - Okay?---- - - with exactitude. 298 Her evidence in re-examination further adds to the uncertainty as to whether she could remember any incidents happening in her brother's bedroom while she was sleeping on a mattress. In my view, her evidence about the incident the subject of count 6 is unreliable and I reject her evidence. It follows I am not satisfied the State has proved beyond reasonable doubt the incident the subject of count 6 happened. 215 ts 278. -- 57 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 58 299 In his evidence-in-chief, the accused denied he had ever had oral sex with Ms C at the Tuart Hill apartment or on any occasion.216 I believe the accused's denial that he performed oral sex on Ms C at the Tuart Hill apartment. 300 Ms C said that at the Yokine house the accused continued to harass her by touching her. She started to say the accused 'digitally' then paused and said, 'or touching me' before going on to say the accused continued 'what he was doing' before finally saying 'there were quite a few incidents in that house'.217 The complainant's evidence at that point was quite confusing. 301 She then spoke about an incident at the Yokine house when it was just her two brothers and herself at the house with the accused. The accused sat the three of them on a sofa in the front living room and showed them a pornographic comic strip. She was aged 11 at the time.218 Count 12 302 Ms C remembered that on one occasion when only her and the accused were in the Padbury house, he made her go into his bedroom, lie down on his bed and perform oral sex on him by forcing her to kneel on the floor. She was about 12 or 13 at the time of this incident.219 The accused took out his penis and grabbed her either by the hand or by the neck and forced her down onto him. The incident did not go on for very long. The accused did not ejaculate.220 303 In cross-examination Ms C said that the first time she performed oral sex on the accused was when they were living in the Yokine house.221 She also remembered the first time she was made to perform oral sex on the accused at the Padbury house.222 She was then asked whether she remembered what she told police about the incident and in a non-responsive way said:223 Do you remember what you told the police about this?---I do remember telling them that I was forced to perform oral sex, but it wasn't - we didn't go into details of what or when. I can't remember the details. 216 ts 338 - ts 339. 217 ts 87. 218 ts 87. 219 ts 96. 220 ts 92. 221 ts 221. 222 ts 221. 223 ts 221 - ts 222. -- 58 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 59 No, can you - - - ?---But I do remember the details of the Padbury because I was older then and I really - I was scared. I really did not want to do anything. I was becoming older and even though he did not continue with the vaginal penetration with his penis, he did continue with his fingers or digitally, and continued to perform oral sex on me. But I do remember that one instance in Padbury with - I do remember in Padbury the times he would come into my room. My mother would go into the toilet. I could smell the cigarette smoke or - she always smoked in the toilet. It was - - - Can you just - can we just concentrate on the answer to the question?--- Yes. I'm just trying to really - - - The first time - - - ?---I'm just remembering the details in the Padbury house. The first time - the first time you ever were forced to perform oral sex on him, the first time ever, was in the - was in Yokine. Is that right?--- Yes. But then a second time it happened - the second time it happened was in Padbury?---Yes. The second time was in Padbury and that was - I remember the most because I was older. 304 She was then taken to par 198 of her first police statement dated 28 March 2024 in which she said:224 In this Padbury home in his bedroom was the first time [PJN] forced me to perform oral sex on him. 305 She then answered:225 It doesn't say that, does it?---Well, it should have, actually. I should have explained myself better. But in the Padbury house that was the first time that I was forced to perform oral sex on him, in that house. And I remember this instance because it was - I did not want to be there. It doesn't say that, does it?---No. I should have added more to that. There were so many incidents happening. Just remembering is very triggering. It's - it affects me a lot. 306 Ms C said she could not remember why and how she came to be in the accused's bedroom when he forced her to perform oral sex on him. She did not know where her mother was but confirmed her mother did not work during the day. She was aged 12 or 13 at the time.226 224 ts 222. 225 ts 223. 226 ts 223. -- 59 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 60 307 Ms C confirmed that for a period of time her uncle, the accused's brother, Carlos, lived with them at the Padbury house after he first arrived from Chile.227 308 In his evidence the accused confirmed his brother, Carlos stayed at the Padbury house with them.228 309 The accused denied that he ever sexually abused Ms C.229 310 Carlos confirmed he stayed at the Padbury house for about two years, moving to Scarborough in about 1991 or 1992.230 His brother, Rodrigo, also stayed at the Padbury house for about a year in 1990.231 They shared the same bedroom sleeping on bunk beds.232 311 Carlos never saw his brother, the accused, go into Ms C's room at night or grope or fondle Ms C.233 He never heard Ms C cry out at night.234 312 I find Ms C's evidence about the incident she said occurred in the accused's bedroom at the Padbury house to be unreliable. The inconsistency in her evidence in cross-examination that the first time the accused forced her to perform oral sex on him was at the Yokine house and her statement to police that the first time that type of sexual offence occurred was at the Padbury house is a significant inconsistency which was not satisfactorily explained by Ms C in her evidence, such that I cannot be satisfied beyond reasonable doubt as to the accuracy and reliability of her evidence and her memory of what she said happened nearly 40 years ago when she was aged 13 years. 313 It follows I am not satisfied beyond reasonable doubt the State has proved the offence alleged in count 12. Other conduct 314 Ms C said that the accused stopped raping her vaginally when she got her period when she was aged 12 and they were living in Yokine.235 She later explained the accused stopped inserting his penis into her 227 ts 224, ts 231. 228 ts 356. 229 ts 359. 230 ts 459. 231 ts 459. 232 ts 460. 233 ts 462 - ts 463. 234 ts 462. 235 ts 88. -- 60 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 61 vagina and ejaculating into her vagina because he knew she had her period and that she could become pregnant.236 That evidence was an example of Ms C often not responding directly to a question asked of her and giving unnecessary and extraneous explanations. 315 Ms C said the anal and digital penetrations did not stop after she got her period.237 Nor did the accused stop performing oral sex on her.238 316 After living at the Yokine house, Ms C and her family moved to Padbury, and she again had her own room at that address.239 317 At the Padbury address the sexual abuse worsened. Every night the accused came into her room and vigorously penetrated her anus and performed oral sex on her.240 318 Ms C returned to Perth for a holiday in 2000 when she brought her cousins with her and her grandmother. They stayed at the accused's and her mother's house in Hillarys. She shared a bedroom with her grandmother. When her grandmother was having breakfast, the accused would come into the bedroom and wake her up by touching her backside or her breasts. He also tried to peep through the bathroom or bedroom windows to see her.241 By the time she turned 16 the oral sexual activity stopped because she was strong enough to force the accused away, but he continued to grab her breasts, fondle her, try to kiss her and grab her backside.242 319 In cross-examination Ms C said that at the Yokine house when she had her own bedroom the accused came into her room almost every night after everyone else went to sleep and had penile/vaginal sex with her, including ejaculating inside her.243 He also sexually touched her including touching her genitals while they were watching a video or movie on the TV with her brothers.244 She confirmed that after she got her period when she was aged 12 the accused stopped raping her vaginally but still digitally penetrated her vagina and performed oral 236 ts 89. 237 ts 90. 238 ts 90. 239 ts 90. 240 ts 91. 241 ts 99. 242 ts 98. 243 ts 213 - ts 214. 244 ts 214. -- 61 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 62 sex on her.245 She confirmed the accused made her and her brothers sit on a sofa when she was 11 or 12, and showed them a pornographic comic strip showing different sexual positions.246 320 After they moved to the Padbury house, although the penile/vaginal sexual activity had stopped, the accused continued to digitally penetrate her vagina and perform oral sex on her nearly every night.247 Ms C said that at the Padbury house the sexual activity occurred after everyone had gone to bed and when her mother used the toilet near her bedroom and also smoked in the toilet. While her mother was in the toilet the accused came into her room and performed oral sex on her and digitally penetrated her. He also placed a pillow on her face and lay on top of her rubbing his penis on her genitals.248 When it was put to her that she had never told anybody about that before she said:249 I probably have, but that's one of the details that I remember. 321 The cross-examination continued:250 It's not in your statement, is it?---Okay. Well, then I retract that, but he did come into my room, digitally penetrate my vagina and perform oral sex on me, and also his penis - he would rub his penis - - - What do you - what do you mean - what do you mean, you retract that? Do you mean it's not true?---No, it is true. He would place, normally a pillow on top of my face, and force himself on top of me with his penis rubbing my genital area. So at Padbury there was no vaginal sex. Is that what you're saying?--- No, there was no vaginal sex. He couldn't - he did not penetrate at all, but he did place himself on top of me while I was on my bed and rub his genitals or his penis against my genitals, my clitoris or my vagina, but he would not penetrate my vagina with his penis. I guess - well, if you want details because he knew that I would - I could fall pregnant, and he was very - he was always asking me when I - if I had any white discharge in my underwear, when my period was starting or when it was ending. He was very - he always wanted to know, and very particularly about the white discharge in my underwear - in my knickers. 245 ts 214, ts 217. 246 ts 215. 247 ts 219 - ts 220. 248 ts 220. 249 ts 220. 250 ts 220 - ts 221. -- 62 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 63 322 I reject Ms C's evidence that the accused 'nearly' or 'almost' every night engaged in sexual activity with her in her bedroom at the Yokine house and at the Padbury house. I reject her evidence the accused engaged in penetrative sexual activity with her while her mother was using the toilet which was near her bedroom in the Padbury house. In my view her evidence is implausible. Her evidence the accused rubbed his penis against her genitals while placing a pillow over her face, which she had never told anyone about before, is implausible and not credible. I do not accept the accused would have so brazenly sexually offended against Ms C on such a regular and persistent basis at the Padbury house when her mother was using a toilet near her bedroom. 323 The accused denied he engaged in such activity with Ms C. I accept his evidence about that. Admission against interest 324 Ms C said that on one of the accused's trips to Chile while she was living in Chile, and he was continuing to sexually touch her, she confronted him about his behaviour. She said the accused made a sketch of why he had done what he had done which was a sketch of the chakras. He said that he sexually abused her because it was a way to enlighten her path towards spiritual energy. She asked him for help for therapy, and he said he would help her but later refused to.251 The State says that on the basis of Ms C's evidence the accused made an implicit admission against interest to the sexual offending against Ms C. 325 The accused denied he had such a conversation with Ms C or that he admitted to her that he sexually abused her.252 Although Ms C did ask him for money once, he said it was because she wanted to continue studying and he asked her to show him the papers for her studies, but because she never came up with the papers he did not give her the money.253 He never offered her money as compensation for sexually abusing her.254 326 I do not accept the complainant's evidence that the accused admitted to her he had sexually offended against her. 251 ts 100. 252 ts 358. 253 ts 358 - ts 359. 254 ts 359. -- 63 of 64 -- [2026] WADC 62 HERRON DCJ [2026] WADC 62 [HC] Page 64 Conclusion 327 In conclusion, I am not satisfied beyond reasonable doubt the offence alleged in each count has been proved and find the accused not guilty of each count and record judgments of acquittal. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. ZO Associate to Judge 3 JULY 2026 -- 64 of 64 --