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District Court 28 August 2024

R v Richard Caine (No 3)

[2024] NSWDC 387

Sexual offences
CRIME SPECIAL HEARING JUDGE ALONE HISTORICAL CHILD SEX OFFENDING TENDENCY EVIDENCE COINCIDENCE EVIDENCE.

Citation: R v Richard Caine (No 3) [2024] NSWDC 387
Court: District Court of New South Wales
Date: 28 August 2024
Judge(s): McGuire SC DCJ

Background

A former elite swimming coach faced 39 counts of historical sexual offending alleged to have been committed against six complainants, all of whom were elite swimmers he coached at the Carss Park swimming pool during the 1970s and 1980s. The complainants included both female and one male-identified complainant (who has since transitioned to male). The charges spanned indecent assault, unlawful carnal knowledge by a teacher of a female pupil, and sexual intercourse without consent under various provisions of the Crimes Act 1900 (NSW).

The accused was found unfit to be tried in the traditional sense following a finding by another judge in December 2023. The matter therefore proceeded as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), with the judge sitting alone. Due to the accused's medical conditions, the court excused him from appearing in person or by audio visual link, so the entire hearing proceeded in his absence with counsel appearing on his behalf.

The defence contested the reliability and credibility of each complainant, relying heavily on the passage of nearly 50 years since the alleged events, alleged inconsistencies in the accounts, and claims that witnesses had been contaminated by media reports, contact with each other, and social interactions before and during the hearing.

Legal Issues

  • Whether the accused was proved beyond reasonable doubt to have committed each of the 39 charged offences, including the elements of age, the teacher-pupil relationship, and the nature of each sexual act.
  • Whether the evidence of the complainants was sufficiently reliable given the effluxion of approximately 50 years since the alleged events.
  • Whether any contamination or collusion between complainants undermined the reliability of their evidence.
  • Whether the defence had raised a reasonable doubt through evidence of the accused's continuous presence at the poolside during training sessions, making the alleged conduct implausible.
  • How the special hearing verdict formula under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applied to the findings.

Decision

Procedural framework: The matter proceeded as a judge-alone special hearing under Part 4, Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The accused was taken to have pleaded not guilty to all 39 counts. The verdict available under the Act, where a court is satisfied beyond reasonable doubt, is that "on the limited evidence available, the accused committed the offence charged," reflecting the modified nature of a special hearing rather than a conventional criminal trial (at [2]-[4]).

Reliability of complainants despite the passage of time: The court accepted that all six complainants were honest, accurate, and reliable witnesses. It acknowledged the impact of nearly 50 years on memory, but found that events of the gravity alleged are the kind likely to be retained in long-term memory and recalled with reasonable accuracy (at [80]). Inconsistencies in the evidence were generally confined to tangential matters, such as the precise identity of other persons present, the exact sequence of events, or minor dating errors, none of which created a reasonable doubt as to the core conduct charged (at [99], [109], [112], [114], [118], [131]). The court also found that delays in complaining and partial disclosures were consistent with recognised features of child sexual abuse, including trauma, shame, power imbalance, and the complainants' dependence on the accused for their sporting aspirations (at [99]).

Contamination and collusion: The court rejected each contamination argument. It found no evidence that media reports about the accused's arrest contained sufficient detail to enable complainants to fabricate graphic and detailed accounts. Contacts between complainants, including a weekend away and conversations in the vicinity of the courthouse, were found to involve only general words and expressions of support rather than disclosure of evidential detail (at [89]-[91], [99]). NE, who had contact with complainant witnesses, was found to have acted out of genuine concern for welfare rather than to coordinate testimony (at [89]).

Opportunity to offend: The court rejected the defence submission that the accused was omnipresent at the poolside and therefore lacked opportunity to commit the assaults. The court found that the defence witnesses who gave evidence of continuous observation were from junior squads, attended less frequently, and had restricted access to relevant areas. The court accepted Crown evidence that the accused would leave the pool deck from time to time, particularly during long-distance training sets (at [96]).

Findings on individual counts: The court made detailed findings on each of the 39 counts across all six complainants. Representative findings included that the accused committed indecent assault on one complainant by placing his penis in her mouth when she was approximately 10 years old in the gym at Carss Park between 1 January and 31 December 1975 (at [100]); that the accused engaged in penile vaginal penetration with NL in the sauna at Carss Park on 17 December 1977, when NL was 15 years old and his pupil (at [123]); and that the timing of assaults on SM on or about 28 July 1980 was established by reference to Michelle Ford's Olympic gold medal win in Moscow on 26 July 1980, accounting for the time zone difference (at [138]). In relation to count 39, involving SM at age 15, the court found absence of consent was established by her resistance and the accused's conduct in overcoming that resistance, which also established his knowledge of non-consent (at [145]).

Orders Made

  • On all 39 counts: on the limited evidence available, the accused committed the offence charged.

Key Takeaways

  • In a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, where the accused has been found unfit for trial, the available verdict is not a conventional acquittal or conviction but a finding that "on the limited evidence available, the accused committed the offence charged," a modified standard that reflects the procedural context (at [2]-[4], [146]).

  • The District Court confirmed that events of significant gravity, including childhood sexual assault, are the type of experiences likely to be retained in long-term memory and recalled with reasonable accuracy even after decades, notwithstanding the general effect of time on recollection (at [80]).

  • Inconsistencies confined to tangential or peripheral details, such as the identity of other persons present or minor sequencing errors, did not undermine the overall reliability of complainant evidence where the core conduct was described in detail and consistently (at [99], [118], [131]).

  • Delay in complaint and incomplete initial disclosure by child victims were treated as explicable by reference to trauma, shame, power imbalance, age disparity, and financial or aspirational dependence on the accused, consistent with recognised features of child sexual abuse cases (at [99]).

  • Where a complainant links the timing of an alleged assault to a contemporaneous event in a different time zone, the court's approach is to interpret that connection in its correct geographic and temporal context rather than to treat a nominal date discrepancy as undermining the reliability of the account (at [138]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Bauer v R [2018] HCA 40
- Christophers v R [2000] WASCA 308
- Decision restricted [2023] NSWCCA 128
- Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17
- Ewen v R [2015] NSWCCA 117
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- Harkin v R (1989) 38 A Crim R 296
- Neto v R [2020] NSWCCA 128
- Question of Law (No. 1 of 1993) (1993) 59 SASR 214
- R v Beserick (1993) 30 NSWLR 510
- R v Ian Bruce Lumsden [1997] NSWSC 371
- R v Manson (NSWCCA, Gleeson CJ, Clarke JA and Sully J, 60773/91, 60820/91, 17 February 1993, unreported)
- R v Mueller (2005) 62 NSWLR 476
- R v Murray (1987) 11 NSWLR 12
- R v Senge (2021) 292 A Crim R 134