Hodgson v R

1. [1]

   LEEMING JA: On 18 March 2022, at the conclusion of the Crown’s submissions in response to Mr Hodgson’s appeal, the Court made orders granting leave to the extent necessary, allowing the appeal, quashing the convictions, reserving on the issue of whether this Court should enter acquittals or instead order that there be a retrial, and granting bail on the same conditions as had applied until sentence. The Court indicated that reasons would follow. These are my reasons for participating in those orders, and for concluding that Mr Hodgson should be acquitted of all charges.

2. [2]

   The grounds of appeal fell into two main categories. The first was that the judge had failed to comply with s 133 of the Criminal Procedure Act 1986 (NSW) in respect of a large number of directions, and in failing to give reasons adequate to sustain the convictions. The Crown did not concede this ground (which if made out would lead to a retrial) but was – in my view appropriately – measured in its response. The second was that each of the convictions was unreasonable, in light of the deficiencies in the Crown case, including arising out of unexplained departures in the complainants’ evidence, inconsistencies with other evidence, the effect of delay and Mr Hodgson’s good character.

3. [3]

   The second category of grounds is the more important in terms of their bearing upon the Court’s further orders. I have concluded that they are made out. The doubt which I have about each of the convictions is a doubt which should have been shared by the primary judge, even allowing for the advantages enjoyed by her Honour and the deference this Court must give to what occurred at trial. These grounds lead to acquittals.

4. [4]

   The trial was short (less than 1½ days) and the reasons are also short. The most efficient way of explaining why this falls into that relatively rare class of appeal where appellate intervention is required, notwithstanding the advantages enjoyed by the trial judge who saw the complainants and the accused give evidence, is to summarise the salient aspects of the evidence and reasoning, and then explain why the convictions are unreasonable. The points of greatest importance are:

   1. (1)

      the unexplained shift by both complainants as to the way in which they said they were anally penetrated by Mr Hodgson from their police statements and from the way the Crown case was opened;

   2. (2)

      the uncontradicted evidence that Mr Hodgson did not live at the address during any of the time (or close to the time) the younger complainant said the events occurred or within the period contained on the indictment;

   3. (3)

      the uncontradicted evidence that it was impossible for Mr Hodgson regularly to encounter either complainant on their way to or from school, since he was working regular hours in the city through the entirety of the period contained on the indictment;

   4. (4)

      the evidence of the swimming pool, which both complainants said was at the house, and was claimed to have been the occasion for the older complainant first coming into contact with Mr Hodgson, but which was established to have been constructed only after the Hodgson family sold the house, and

   5. (5)

      the delay and the positive evidence supporting the conclusion that both complainants had reconstructed what occurred.

The trial

1. [5]

   Mr Robert Hodgson was convicted following a trial in the District Court constituted by a judge sitting without a jury on 11 of 14 counts on an indictment. All counts were what would now be charged as sexual assaults under Division 10 of Part 3 of the Crimes Act 1900 (NSW), but because the events were said to have taken place in the early 1970s, the charges were offences to ss 80, 81 and 81A of the Crimes Act in the forms those sections (now repealed) then took, of procuring acts of indecency, committing acts of indecency, and one attempted act of buggery.

2. [6]

   There were two complainants, who were young boys at the time. Only one boy was said to have been present at any time. The charges involved having the complainants masturbate Mr Hodgson’s penis, Mr Hodgson masturbating the complainants’ penises, and Mr Hodgson inserting tools (screwdrivers and pliers and a hammer) in the complainants’ anuses. There were also, in the case of the older complainant, charges that Mr Hodgson fellated the boy, and attempted penile anal intercourse with him, and that Mr Hodgson inserted a tool into his own anus in the complainant’s presence. Most or all of the events were said to have taken place in an under-storey workshop in a nearby house where Mr Hodgson had lived, some five decades ago, a couple of blocks down the street from the complainants’ home in suburban Sydney.

3. [7]

   The two complainants were brothers, born in February 1960 and August 1966. They cannot be named or otherwise identified by reason of each of s 578A of the Crimes Act (because the offences are “prescribed sexual offence proceedings” and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) (because they were children when the offences to which they testified occurred). I shall refer to the older and younger brother as S and J respectively. All of the acts were said to have taken place more than 47 years before the trial, when S was 10 or 11 or 12, and when J was 5 or 6. There was no contemporaneous complaint.

4. [8]

   The indictment contained 14 charges, 6 offences against S and 8 against J. The Crown’s opening was reflected in a document described “Particulars” which was provided immediately thereafter, and before the complainants gave evidence. The particulars made it quite plain that the counts based on the insertion of tools into the complainants’ anuses were said to have involved the insertion of the handle of a screwdriver, thus:

5. [9]

   The case was opened by the Crown specifically on the basis that “the object placed in [S’s] anus was the handle of a screwdriver” and “[J] will say that the handle of the screwdriver was inserted into his own anus – that is, [J’s] – and that that was done by the accused” and, again “by reason of the penetration of the screwdriver handle into the anus of [J]”. Both S and J gave different accounts when giving evidence in chief. They both insisted that Mr Hodgson had inserted the metal part of a screwdriver into their anuses.

6. [10]

   S said that he, his parents and three siblings moved to the suburb and went to the local primary schools in “probably 69, 70, something like that”. He said he was “about 95% certain it was in – in fifth class, beginning of fifth class” and that he was “not really sure a hundred per cent” what year that was.

7. [11]

   S gave clear evidence about how he came to know Mr Hodgson who lived in a house he walked past each day coming and going from school:

8. [12]

   It may be added that Exhibit A was a short document of facts agreed for the purposes of s 191 of the Evidence Act 1995 (NSW), dealing with dates of birth and the configuration of the houses. Mr Hodgson’s house was agreed to be some 150m away from the complainants’ house. The document annexed an aerial photograph which showed a swimming pool at Mr Hodgson’s house.

9. [13]

   S confirmed that he had made a statement in 2019 in which he nominated a surname “Hudson”, because “Bob” had explained the difference between “Hudson” and “Hodgson” to him at the time and “that detail just stayed there over the – over the years”.

10. [14]

    He said that a friendship developed, that he went into the house, but never swam in the pool. He said that he went on trips with Bob and that “he would take me up the river to Bobbin Head canoeing”, one of which was an overnight trip in which they stayed in a tent on the side of the river. He described a pianola in the house which Bob would play, and that on one occasion Bob placed his arm around him “and the next thing I knew he had an erection and I was fighting to get away from there”. He later said that he had placed his hand on Bob’s penis and that Bob had moved his hand up and down and ejaculated and then S had run away.

11. [15]

    S gave evidence of a downstairs workshop under the house, which could be entered by a door on the side of the house. He said he hadn’t been back to that house, or his former home, since 1973 when he left home, aged 13.

12. [16]

    He gave the following evidence, which was the subject of ground 2:

13. [17]

    Otherwise, S gave evidence describing the conduct giving rise to the counts involving him. S said that Mr Hodgson had taken off all of S’s clothes and placed him on the workbench. He said that he was asked to masturbate Mr Hodgson’s erect penis, and that on one occasion, Mr Hodgson attempted to have penile-anal intercourse, but was unable to penetrate him.

14. [18]

    There was one major divergence from the account given to police and upon which the Crown case as particularised and opened upon was based: he said that a screwdriver was inserted into his anus metal end first.

15. [19]

    S said that the first time he told anyone what had happened was when he was 40, when “I was in a drug and alcohol rehabilitation centre and it just came out one day”. S said that he had first given some indication of the complaints when participating in group therapy at an organisation for the treatment of drug addiction in 1998, some three decades later. He then said:

16. [20]

    He then gave this evidence, once again in evidence in chief, and over the objection of the defence:

17. [21]

    S said that he told his younger brother, J, that he was going to the police, and gave evidence that J said “Oh, he got you too?”. J gave evidence that when S told him he was going to the police, S said to J “Mate, that’s fine, you don’t have to explain it to me, I believe you, the same thing happened to me”. It was said that there was very little communication between the brothers of their recollections of the conduct they attributed to Mr Hodgson. He said that “[t]here was probably about five sentences and they were, that I’m going to the police”.

18. [22]

    After repeating that he had never been back to the house, he said that the police showed a Google Maps aerial photograph, and he identified which address the house was by reference to it. The map was tendered, and it shows a pool in the yard of the house where Mr Hodgson had lived as a young man.

19. [23]

    In cross-examination, S explained that he left home when he was 13 or 13 and a half, but put himself through school to year 10, when he became an apprentice carpenter. He agreed that he became “very familiar with tools”.

20. [24]

    S reiterated his evidence about how he first came to know Mr Hodgson:

21. [25]

    In due course the defence tendered a memorandum of transfer dated 9 July 1973, whereby Mr Hodgson’s parents sold the house to a Mr McCallum, and a page of the council’s records showing that Mr McCallum applied to construct a pool at the house in 1974.

22. [26]

    S said that he would see the person on his way home from school, and that it was definitely in daylight hours.

23. [27]

    When S was asked about the insertion of tools into his anus, the transcript records the following:

24. [28]

    Evidently S made some gesture or otherwise indicated that Mr Hodgson, in the dock, was the man whom he believed was the offender. S was giving evidence that he could identify Mr Hodgson, then aged 77, who had been in his mid to late twenties during the times specified in the indictment, without having seen him subsequently.

25. [29]

    S said that the insertion of pliers into his anus caused him to bleed, and that he was never asked by his parents about blood stains on his underwear. He said that the handle of a hammer was also inserted, and a screwdriver. He then confirmed his evidence that it was the metal end of the screwdriver:

26. [30]

    The cross-examination of S concluded:

27. [31]

    J’s evidence was even briefer than that of S. In its entirety, it occupies 12 pages of transcript.

28. [32]

    J confirmed that he had visited his old house only five times in the past three years, even though his father still lived in the house.

29. [33]

    When asked to describe the person he saw when he was in kindergarten or year 1, he also identified Mr Hodgson as the perpetrator, as follows:

30. [34]

    J said there were three occasions when he went into the toolshed in the house where Mr Hodgson had lived. He placed the time at around the time his mother had died, which was 18 March 1973. He was asked in a non-leading way in evidence in chief which end of the screwdriver was inserted into his anus, and responded “not the handle, the other end” and confirmed that it was the metal end and that it caused him pain.

31. [35]

    J also confirmed that there was a pool at the house when he was 6 years old:

32. [36]

    J described the events giving rise to the counts involving him in respect of which Mr Hodgson was convicted. J was unsure precisely when this occurred, but placed it at around the time his mother died:

33. [37]

    The prosecutor then confirmed that J had never seen a photograph of the shed, and showed him five photographs as follows:

34. [38]

    J’s cross-examination commenced with the change in evidence concerning the metal end of the screwdriver:

35. [39]

    The cross-examination moved to a slightly different topic. The witness statement which must have been part of the Crown brief was not tendered. There was no re-examination, or any other complaint or submission that counsel then appearing for Mr Hodgson had misstated the witness statement. As noted above, the particulars provided by the Crown of the indictment were that the handle of a screwdriver had been inserted into J’s anus, and the case was expressly opened by the Crown on that basis.

36. [40]

    The cross-examination continued, to the effect that J remembered there was blood on his underpants on one occasion, that he did not tell his older brothers, or his sister, or his father, followed by this:

37. [41]

    The cross-examination concluded:

38. [42]

    A statement by the complainant’s father was tendered without objection. He was not required for cross-examination. He was aged 82. He said that the family moved to the address in 1969. Relevantly to one aspect of S’s evidence he said:

39. [43]

    He said that after his wife died in 1973, he continued to work, and the children were at first looked after by nannies, but that this didn’t work out. He said that “[t]hey would be home by themselves from 3:30pm in the afternoon until 6pm at night when I returned home”.

40. [44]

    He said that S was married in the 1980’s and had a child, but had financial difficulties in the late 1980s, separated from his wife and declared bankruptcy. He moved to South East Queensland. He said that in about 1995, S was “in a very concerned state”, and owed debts to his landlord and didn’t have a car. He said that “I know little about [S’s] drug taking or any rehabilitation he may have done for drug issues. I remember once [S] told me that he had been to a rehabilitation facility”. He said that S never disclosed to him what happened when he was a child, and that the first he heard of the matter was in September 2018, when S rang his father and told him that he had reported the matter to the police.

41. [45]

    He said that there was a track near his home to the school, which kids used to walk along to get to school. He added “[m]y wife would drive the kids to school. They were unable to walk to school from our place”.

42. [46]

    The police officer in charge of the investigation was cross-examined briefly. She confirmed that prior to charges being laid, she contacted Mr Hodgson’s half-sister, who confirmed that he had moved out in about 1972 prior to her father’s death.

43. [47]

    The Crown then amended the indictment, without opposition from Mr Hodgson, to alter the dates for some of the counts based on J’s evidence, bringing forward the period in which they were said to have occurred from 18 March 1973 to 9 July 1973 on the original indictment, to 1 January 1973 to 9 July 1973 as amended. This was to accommodate J’s evidence (reproduced above) that the events took place around the time of his mother’s death. For completeness, counts 9 and 12 were different and were alleged to have taken place between 1 January 1973 and 31 December 1973. Why the time frame for those counts differed from all the others in relation to J (which all ended on 9 July 1973) was not explained. This was not a part of the Crown case on appeal.

44. [48]

    The defence tendered the memorandum of transfer establishing that Mr Hodgson’s parents sold the house in July 1973, and that the purchaser applied for development consent to construct a swimming pool in 1974.

45. [49]

    Mr Hodgson gave evidence. His evidence in chief occupies fewer than five pages of transcript, and his cross-examination was some seven pages of transcript.

46. [50]

    Mr Hodgson said he had lived at the house between 1970 and early 1972, but that he stopped living there in April or May 1972, and moved to a unit in Fairlight. He said that he was working at Burroughs Computers in East Sydney, as a salesman, with a territory in North Sydney. He had started working with Burroughs in January 1972, and he had moved in order to be closer to his work. His working hours were nine to five, and he would get home at 5.30pm or later. Before working for Burroughs, he had worked as a computer engineer with a company in the Sydney CBD from 1969. He had a company car, and his working hours were once again nine to five. He said that there were no extended periods when he was off work.

47. [51]

    Mr Hodgson said that he built a canoe in the large garage that faced the street. He said that it would not have been possible to build the canoe in the understorey workspace, that he had never taken S out in that canoe, and never took him on a camping trip.

48. [52]

    Mr Hodgson accepted that he had met S. He said, “He used to just appear when I was working in the garage”, and that he did not know J at all. It was accepted that he had never been charged with any offence in his life.

49. [53]

    Mr Hodgson accepted in cross-examination that he had installed a workbench in the house in the early 1970s, because his father was complaining that he was occupying the garage building a canoe. He accepted that he had launched the canoe at Bobbin Head but denied ever taking S there. He accepted that S had been in the garage but denied ever inviting him into the house. He accepted that there was a pianola in the house, which he played very occasionally, although his father played it mostly. He denied keeping tools in the underground workroom.

50. [54]

    He denied seeing the brothers after school:

51. [55]

    He was not cross-examined to suggest that he was not working nine to five in the city throughout this period.

52. [56]

    The events giving rise to the counts were put to Mr Hodgson, and he denied them. He said that while he had known S, he had never known J, or their family, and that he had had no contact with any of them since 1972.

53. [57]

    He accepted that he went by the name of Bob in those days. He was pressed on one point only, which was how he could remember a neighbourhood boy wandering in his garage. Mr Hodgson said “[h]e was the only one that ever did”.

54. [58]

    The Crown conceded Mr Hodgson had no criminal record. At the conclusion the Court granted an adjournment until 11.30, and there were brief addresses occupying some 6 pages of transcript. The trial finished before lunchtime on the second day. The Court adjourned, and delivered oral reasons on the Friday three days later.

The reasons of the primary judge

1. [59]

   The primary judge identified the tendency as “a tendency of the accused to have a certain state of mind being a sexual interest in young males, and to act upon that interest by inserting tools into the anus of young males, by having young males masturbate the accused, and to act in that way at the same location”.

2. [60]

   Her Honour then said:

3. [61]

   The first 18 pages of the oral judgment summarise the indictment, the evidence, and the addresses of counsel. The reasoning occupies a little over 6 pages. The most transparent course is to reproduce it in full.

The appeal

1. [62]

   Mr Hodgson was sentenced to a term of imprisonment on 29 January 2021 of 5 years with a non-parole period of 2½ years. He filed a notice of intention to appeal on 25 February 2021 but his notice of appeal with accompanying submissions was not filed until 18 August 2021. Grounds 2, 4 and 5 were that the guilty verdicts on the various counts were unreasonable. Grounds 4 and 5 were based on the unreliability of the evidence of S and J. Ground 2 was confined to count 2, and was based on the proposition that the evidence of S reproduced above that Mr Hodgson “played with” him was incapable of sustaining the count of committing an act of indecency.

2. [63]

   Ground 1 was that the trial judge erred in failing to comply with the requirements of s 133 of the Criminal Procedure Act 1986, in particular by failing to comply with s 133(2) as to the exposition of the principles of law applied in the trial and s 133(3) as to taking into account warnings. Ground 3 was that the trial miscarried on account of erroneous reasoning as to tendency evidence in the trial judgment and verdicts.

3. [64]

   Grounds 1 and 3 lie as of right pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), being confined to questions of law, while grounds 2, 4 and 5 involve questions of fact, or mixed law and fact, and are available subject to leave. Ground 6 was in the alternative to the grounds based on unreasonable verdicts and was not addressed orally. It was that the primary judge did not fairly sum up, omitting key issues such as Mr Hodgson not being present at the home in 1973, or working full time in the city, or that he had no criminal record. All these grounds are linked. The failure to articulate and apply the directions summarised at the outset of the reasons dovetails with the failure to consider the evidence as a whole, and important aspects of the submissions put to the Court by Queen’s Counsel then appearing for Mr Hodgson.

4. [65]

   The most convenient course is to commence with the grounds that the convictions are unreasonable. All of the evidence bearing upon each ground needs to be borne in mind, but it is necessary to start somewhere, and it is convenient to commence with the time when the offences involving J took place.

5. [66]

   The evidence obtained by the police from Mr Hodgson’s half-sister was that Mr Hodgson left home in April or May 1972. That evidence accorded with Mr Hodgson’s own account. He was not cross-examined to suggest that that was wrong. It is inherently plausible that a young man aged 29 with full-time employment would leave home at that age.

6. [67]

   If Mr Hodgson left home in April or May 1972, that was seven months earlier than the earliest time stated on the indictment, even as amended, for the counts involving J. It was when J had not yet turned 6. It was almost a year before J’s mother died, which was the event to which J tethered his account, and the reason for amending the indictment at the conclusion of the Crown case. J gave this evidence:

7. [68]

   But if Mr Hodgson left home in April or May 1972, that evidence was wrong. In fact, J would have been five years old, and the assaults would have taken place at least a year before the death of J’s mother.

8. [69]

   This issue of timing was a prominent feature of the case. In addition to the amendment of the indictment at the close of the Crown case, it was the subject of a submission from the defence.

9. [70]

   What counsel said was this:

10. [71]

    The primary judge recorded the defence submission that “[t]he accused did not have the opportunity to commit the offences as he was either working or not present as he stopped living there in April or May 1972”. Despite doing so, the issue is nowhere else addressed in her Honour’s reasons. I do not see how a reasonable doubt could be removed without considering the unchallenged evidence of Mr Hodgson, supported by the evidence of what his half-sister told the investigating officer.

11. [72]

    Even while Mr Hodgson was living with his family, there was unchallenged evidence that he was working full time in the city. Once again, that evidence was inherently plausible. Any finding of guilt had to be reconciled with that evidence, unless the tribunal of fact were satisfied that it could be disregarded entirely, and there is no suggestion of that. On days when Mr Hodgson was working full time in the city, he could not have returned home before 5.30pm at the earliest; this calls into question the evidence of S and J that they encountered him regularly on their way home from school.

12. [73]

    It is likely that Mr Hodgson suffered serious prejudice by reason of the delay. Documents such as his taxation or employment records are apt to have been unavailable. If the Crown were to establish Mr Hodgson’s guilt beyond reasonable doubt, it was therefore necessary to test the evidence in light of the possibility that the events happened when Mr Hodgson was working full time in the city.

13. [74]

    It will be recalled that both S and J gave evidence about meeting Mr Hodgson on the way home from school. There was also evidence that when she was alive, their mother took them to and from school, and that it was too far for them to walk. All this is difficult to reconcile with Mr Hodgson being the perpetrator of the charged conduct.

14. [75]

    All this was at the forefront of the defence case. It was put thus:

15. [76]

    None of these issues was attended to by the primary judge, save for briefly recording the submission in the passage reproduced above.

16. [77]

    The primary judge relied upon the fact that both S and J gave credible evidence of strikingly similar events. Her Honour evidently used that fact as favouring the credibility and reliability of their evidence. That reasoning turned upon her proposition that “[u]nlike cases where events have been the subject of discussions within a group or family over many years, there is no evidence of contamination”. That is just not so.

17. [78]

    Both S and J gave evidence that there was a pool in the yard of the house where the offences took place. S acknowledged his error, in a way regarded by the primary judge as believable, and of course to that extent her Honour enjoyed a considerable advantage over and above this Court. However, J also gave evidence that there was a pool (“Was there a pool there when you were six years of age? Yes”). The evidence of both S and J was wrong on that account; the pool was not installed until 1974 after the Hodgson family had left. How did both S and J come to have the same erroneous recollection of a pool? One possibility is that the events happened, but after 1973, and both had misremembered the timing; if so, then that is powerful evidence that Mr Hodgson was not the perpetrator. Another possibility is that the evidence of one had been contaminated by the other. A third is that both S and J coincidentally made the same mistake.

18. [79]

    Next, both S and J told police that Mr Hodgson had inserted the handle of a screwdriver into their anuses, and that was reflected in the particulars to the indictment and the Crown’s opening. But at trial, both S and J gave evidence that Mr Hodgson inserted the metal end into their anuses. That is a striking alteration of the account of each complainant, between the making of statements to the police in 2018 or 2019, and giving evidence in 2020. One possibility is that the limited conversations (some “five sentences” – the answer does not seem to have been intended to be precise) extended to this, and there was indeed contamination. Another is that it is inadvertent contamination during the course of preparing their evidence before trial if that occurred (there is nothing on the record to suggest that it did but it is not impossible). Mere coincidence about something as directly related to the offending seems unlikely.

19. [80]

    True it is that there was no direct testimonial or documentary evidence of contamination. However, the fact that both complainants’ recollection of the pool was wrong in the same way, and the fact that both complainants altered their account of a key aspect of the offending in the same way makes the possibility of contamination one that is very much alive on the evidence. Nowhere in her Honour’s reasons is this addressed. Neither the Crown not the defence explored the content of the five sentences. The possibility of contamination needed to be addressed if her Honour were to proceed on the basis that the evidence of S and J was independent.

20. [81]

    S said that he had gone on an overnight canoeing holiday with Mr Hodgson. Mr Hodgson denied this. S’s father gave unchallenged evidence (by a witness statement) that he could recall no such occasion. The contradiction was not addressed by the primary judge.

21. [82]

    The error by S as to the swimming pool was not a merely peripheral detail (as it was in the case of J). It was the reason that he first came into contact with the man whom he said had assaulted him. If that man were Mr Hodgson, then this aspect of S’s account is a false reconstruction, perhaps assisted by having been shown by police the aerial photograph showing the house and the swimming pool.

22. [83]

    I am conscious of the difficulties in asking how likely it is that an abused child will act in a particular way. Even so, a number of features of the accounts of S and J are decidedly improbable. Both said that they were hurt by the insertion of tools into their anuses. But both said that they continued to return to the home, where they suffered the same treatment. S said it happened 10 or 15 times over a two year period. As it was put in closing address:

23. [84]

    Similarly, J went back three times on his account.

24. [85]

    A further aspect of the inherent improbability is that both S and J said that not only were they in pain, but they also on occasion bled from their anuses. It is improbable that that passed unnoticed when their clothes were washed, and if noticed it is improbable that a parent did not act or raise it with them.

25. [86]

    None of this was addressed by the primary judge. It was necessary to do so before a conclusion of guilt beyond reasonable doubt could be reached.

26. [87]

    The trial judge was not merely required to recite the applicable warnings and directions. Her Honour was required to take them into account. “A mere incantation of the warnings and directions without them being taken into account is insufficient”: W v R [2014] NSWCCA 110 at [136], referring to Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [33]. The incantation that Mr Hodgson was entitled to “a good character direction included in both limbs” [sic] was apparently reflected in the reasoning in one sentence, “The Crown’s onus of proof, the good character direction and the Liberato direction all need to be taken into account”. There was a deal of work for that direction to do, Mr Hodgson having lived an unexceptionable life. His good character bore upon the unlikelihood of his having committed the present offences, which suffered from the inherent improbabilities summarised above, and in supporting the credibility of his evidence. The primary judge accepted the evidence of Mr Hodgson that he had built the workroom and that there was a pianola in the house which he played, using these to buttress her assessment of the credibility and reliability of S and J, but seemingly without regard to their confirmatory effect upon the reliability of Mr Hodgson’s evidence. Her Honour’s rejection of the entirety of his evidence which did not accord with that of S and J was made without explicitly attending to the substance of the direction on good character.

27. [88]

    Her Honour also said that she gave herself a Markuleski direction, without enunciating its content. Once again, this had real work to do, especially in relation to the complainant J. Her Honour acquitted on counts 13 and 14, which involved Mr Hodgson masturbating J, and manipulating the screwdriver handle in his own anus, in both cases in the presence of another child. J gave no evidence of either offending conduct. Her Honour said that she did not have doubts about the reliability of J, on the basis that “[h]e was never asked to detail what actions he himself performed as opposed to the other child, leaving the evidence somewhat unclear”. Her Honour was correct; the evidence was unclear, but that was largely because, so far as the transcript discloses, J had a very limited recollection of what occurred. The identity of the other boy was not known, and what precisely occurred was not known. J repeatedly said that his memory was poor (“I can’t remember his name”, “I can’t remember much more about him outside of that time”, “I don’t ever remember him ejaculating. It might of. I don’t know. I was six, so I wouldn’t of really known what that was, but to the best of my memory, again, it was – it was the same – it was – the way he did things was the same”). All this was required to be taken into account when assessing the evidence on the other counts involving J.

28. [89]

    Substantially the same is true in relation to count 5. This was the count particularised as inserting the handle of a screwdriver into S’s anus. The evidence of S was that the metal part of the screwdriver was inserted. While her Honour said that S’s evidence on this count lacked specificity, her Honour did not add that it was at odds with the way the Crown case was opened and particularised. This went squarely to the reliability and credibility of S, and not merely in relation to this count, but to the whole of his evidence.

29. [90]

    Although the primary judge gave a direction in accordance with s 294(2) of the Criminal Procedure Act 1986 (NSW) concerning the delayed complaint by S and J, she did not give a direction under s 165B of the Evidence Act 1995 (NSW). Importantly, her Honour was not asked to do so. On the other hand, it is overwhelmingly likely that Mr Hodgson suffered a significant forensic disadvantage occasioned by the delay. The difficulties in obtaining documentary records of his employment and address are mentioned above. Had an application been made, some warning would have had to have been given.

30. [91]

    However, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies, and this ground only leads to a retrial. Accordingly, in light of Mr Hodgson’s success on other grounds, there is no occasion to consider the effect of s 165B any further.

31. [92]

    Both S and J purported to recognise Mr Hodgson in the dock. I saw Mr Hodgson by videolink from gaol when the appeal was heard. He is now 79. He looks his age. He was almost 78 when the trial took place. He does not appear to have any distinctive features (such as a birthmark or obvious deformity) which could assist identification fifty years after the event.

32. [93]

    It was accepted that the dock identification was of no value. On one view it goes further, tending in favour of a conclusion that the evidence of S and J is unreliable, because they simply could not reliably identify the old man 50 years after the event. But as no submissions were made on that point, I take it no further.

33. [94]

    The primary judge was entitled to take into account the demeanour of S and J and Mr Hodgson.

34. [95]

    However, it is clear from her Honour’s reasons that she placed considerable weight on the demeanour of all three men, but without relying on an analysis of how their evidence squared with the undisputed and inherently probable considerations mentioned above. That approach goes against the tide of a deal of authority. Kirby A-CJ said in Galea v Galea (1990) 19 NSWLR 263 at 266 that:

35. [96]

    The joint judgment in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] observed:

36. [97]

    In Prouten v Chapman [2021] NSWCA 207 at [12] I said:

37. [98]

    It was open to the primary judge to put those familiar reservations about judges’ ability to discern truth from falsehood and distinguish reliable from unreliable evidence to one side and rely upon demeanour. But while it was open to her Honour to rely upon demeanour, that did not absolve her from considering the matters established as fact, or the aspects of the defence case which could not be excluded beyond reasonable doubt. It is trite that a court’s obligation to give reasons in a civil case is not satisfied merely by stating that the judge accepts one side as a witness of truth and rejects the other; it is necessary to attend to all of the evidence and to the submissions which were made. The position is no different in a criminal trial conducted in accordance with s 133 of the Criminal Procedure Act.

38. [99]

    It is conventional to start with the incontrovertible or unchallenged facts and seek to evaluate the conflicting testimonial evidence against those matters. In the present case, that would have involved commencing with the ages of S, J and Mr Hodgson in the period 1970-1973, the dates they lived in the suburb, and when the complainants’ mother died. Although that is often the most convenient course, it is also open to approach the review of the evidence in other ways. But it is necessary to review all of the evidence, and to explain how that review has led to the verdicts on each of the counts.

39. [100]

    No aspect of the Crown case called into question Mr Hodgson’s inherently plausible evidence that he was working at the time, and simply was not in a position to interact with S and J on their way to and from school. Nor did the Crown dispute the evidence adduced as to Mr Hodgson leaving home in April or May 1972, casting doubt upon the entirety of J’s evidence. When to those matters are added Mr Hodgson’s good character, the inherent improbability of the complainants’ accounts, the complainants’ shared mistake concerning the swimming pool, their altered accounts that it was the metal end rather than the handle of a screwdriver that was inserted into them and the other matters mentioned above, there is – to say the very least – a reasonable doubt which the trial judge should have held as to his guilt on any of the counts.

40. [101]

    Ground 2 does not arise, because of the conclusion reached on grounds 4 and 5. (I am conscious that ground 2 was the only ground leading to an acquittal on count 2, and that ground 5 was expressed to be confined the verdicts on counts 1, 3, 4 and 6. But the same reasoning undermining the acceptance of the other counts based on the evidence of S applies with equal force to count 2.) I therefore address it only briefly, and tentatively, because it is not dispositive, and the Court did not hear full argument on the point. As presently advised, were count 2 to stand alone, I favour the view that it would be quite artificial to determine it merely on the basis of the imperfect record of the trial that is the transcript. This is a ground where, confined as it is to a very short passage in S’s evidence, it would be appropriate to view the recording on that part of the evidence, in accordance with what was said in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [31]. The transcript may not be complete, or S may by some non-verbal means (for example a gesture) have communicated unambiguously that when he said “proceeded to play with me, suck my penis. And inject things into me” that included the act of indecency which grounded this count. Because nothing turns on this ground, it is unnecessary to take the matter any further.

41. [102]

    Ground 3 turns in part upon an aspect of the trial not hitherto mentioned. Presumably there was a tendency notice in the Crown brief, but it was not tendered at trial. It is not available to this Court, and it is far from clear that her Honour saw it. There was no challenge to the reception of the evidence of each complainant. Counsel who appeared at trial for Mr Hodgson deferred the question of the scope of the tendency evidence until closing address, and then maintained that tendency evidence “is not of great assistance in this case”.

42. [103]

    The Crown accepted that “[t]he applicant makes a valid criticism in this ground as to the lack of specificity given the precise nature of the tendency, the basis upon which it was established and how it was to be utilised”, and added, with respect correctly, that “[h]er Honour was not assisted by counsel in relation to the tendency evidence, despite asking for assistance as to precisely what the tendency alleged” was.

43. [104]

    This ground would lead only to a retrial, and does not arise in light of the success on other grounds. It is not necessary to consider it any further.

Conclusion

1. [105]

   Those reasons explain why I participated in the orders quashing the convictions at the conclusion of the hearing, and why I propose that this Court now order that Mr Hodgson be acquitted on all the counts in respect of which he was formerly found guilty.

2. [106]

   I propose the following additional order:

3. [107]

   In accordance with what was said during the hearing, these reasons will not be published on CaseLaw for a period of seven days. Any application for any part of them to be redacted, or for any other orders should be made by the parties by email to my Associate, copied to the other side, within that timeframe. If an application is made, it should be accompanied by short submissions explaining the basis on which any such redaction or order is sought and how it is consistent with the public interest in open justice to which s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW) refers.

4. [108]

   ROTHMAN J: I agree with Leeming JA. I agree with his analysis of the evidence and the orders he proposes. I would add the following comment.

5. [109]

   Accepting, as I do, that each of the complainants was abused, there are a number of fundamental issues each of which have been the subject of comment by Leeming JA. If the pool were in existence at the time of the abuse, then the applicant could not have been the perpetrator.

6. [110]

   If, as is uncontroverted, the applicant worked as described and left his parents’ home at the time given, the applicant could not have been the person seen by the complainants on their way home from school tending his lawn and/or garden.

7. [111]

   Nor could he have perpetrated the abuse at the time specified in the offence. Further, if, as one of the complainants testified, it was the father in the household who was the perpetrator of the abuse, it was not the applicant.

8. [112]

   The evidence discloses there was some unintended contamination of the evidence when the Police suggested the applicant’s name. There may have been more. That contamination may have worked against the Crown. If there were no other contamination, then there is more than a reasonable doubt as to the guilt of the applicant; he could not have been the perpetrator of the abuse.

9. [113]

   The reasons given by Leeming JA and the above are the reasons I joined in the orders entered and in these further orders.

10. [114]

    HAMILL J: I have had the advantage of reading the draft judgment of Leeming JA. His Honour’s judgment encapsulates the reasons I joined in the orders made on 18 March 2022 set out by the presiding Judge at [1]. Essentially, at the conclusion of the hearing, I was satisfied that the applicant had made good his ground asserting that the trial judge failed to comply with s 133 of the Criminal Procedure Act 1986. I also agree with the further order proposed by Leeming JA at [106], that is to enter verdicts of acquittal on all remaining counts. I have reviewed the record of the trial and have a reasonable doubt as to Mr Hodgson’s guilt. I am satisfied that this doubt cannot dispelled by the advantages enjoyed by the trial Judge and is a doubt that her Honour ought to have entertained.