R v WS

1. [1]

   HOEBEN CJ at CL: I agree with the judgment of Price J and the orders which he proposes.

2. [2]

   PRICE J: On 14 August 2017, WS (the appellant) was arraigned before her Honour Syme DCJ (the trial judge) and a jury of twelve in the District Court at Sydney on an indictment that contained 26 counts.

3. [3]

   Counts 1 to 4 alleged that the appellant had assaulted PW (a male person) at Armidale between 1 January 1981 and 31 December 1982 and had committed an act of indecency on him contrary to s 81 of the Crimes Act 1900 (NSW).

4. [4]

   Counts 5, 6 and 8 were in the same terms as counts 1 to 4 but the date of the offences was between 1 October 1982 and 1 March 1984.

5. [5]

   Count 7 alleged that the appellant between 1 October 1982 and 1 March 1984 at Armidale had sexual intercourse with PW without his consent knowing he was not consenting contrary to s 61D(1) of the Crimes Act. Count 8 was charged in the alternative to count 7.

6. [6]

   Counts 9, 10, 11, 12, 19, and 20 alleged that the appellant had assaulted JW (a male person) at Armidale between 1 January 1981 and 30 April 1983 and had committed an act of indecency on him contrary to s 81 of the Crimes Act.

7. [7]

   Counts 14 and 17 were in the same terms as the other counts brought contrary to s 81 of the Crimes Act but the date of the offences was between 14 July 1981 and 30 April 1983. Counts 15 and 18 were also in the same terms as the other counts brought contrary to s 81 of the Crimes Act but the date of these offences was between 1 January 1981 and 13 July 1981.

8. [8]

   Count 13 alleged that the appellant between 14 July 1981 and 30 April 1983 at Armidale had sexual intercourse with JW without his consent knowing that he was not consenting contrary to s 61D(1) of the Crimes Act. Count 14 was charged in the alternative to count 13 as was count 15.

9. [9]

   Count 21 alleged that the appellant between 14 July 1981 and 30 April 1983 at Armidale did have sexual intercourse with JW without his consent knowing that he was not consenting contrary to s 61D(1) of the Crimes Act.

10. [10]

    Counts 22 and 23 which were charges contrary to s 81 of the Crimes Act were charged in the alternative to count 21. The date of the offence in count 22 was between 14 July 1981 and 30 April 1983 whereas the date of the offence in count 23 was between 1 January 1981 and 13 July 1981.

11. [11]

    Counts 24 and 25 alleged that the appellant had assaulted SF (a male person) at Armidale between 1 January 1982 and 31 December 1982 and committed an act of indecency on him contrary to s 81 of the Crimes Act.

12. [12]

    Count 26 alleged that the appellant had assaulted ST (a male person) at Armidale between 1 June 1981 and 31 December 1981 and committed an act of indecency on him contrary to s 81 of the Crimes Act.

13. [13]

    The appellant pleaded not guilty to all of the counts and the trial commenced on the same day.

14. [14]

    As will be seen from the indictment, counts 1 to 8 related to the complainant PW; counts 9 to 23 to the complainant JW; counts 24 and 25 to the complainant SF; and count 26 to the complainant ST.

15. [15]

    The jury retired to consider its verdicts on 3 October 2017. On 16 October 2017, the jury returned unanimous verdicts of guilt on counts 24, 25 and 26, being the charges relating to SF and ST. On 19 October 2017, the jury delivered the following majority verdicts on the counts relating to JW:

16. [16]

    On 23 October 2017, the jury returned majority verdicts of guilty on counts 1 to 5 which related to PW. As the jury was unable to reach a unanimous or majority verdict on counts 6 to 8, the jury was discharged on these counts.

17. [17]

    The appellant was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 8 years.

The Grounds of Appeal

1. [18]

   The notice of appeal identifies the following grounds:

A summary of the Crown case against the appellant

1. [19]

   The appellant worked as a dentist in Armidale New South Wales during the 1980s. He also practised in two other country towns during this time. He had undertaken some hypnotherapy courses and was a member of the Australian Society of Hypnosis. He used some hypnotherapy techniques as part of his dentistry practice to assist people with fear. He also assisted people more generally with ‘pure’ hypnotherapy/relaxation sessions.

2. [20]

   The Crown case was that the appellant had used these hypnotherapy techniques on teenage and pre-teenage boys during both dentistry sessions and pure hypnotherapy sessions and had taken advantage of these sessions to touch boys inappropriately.

3. [21]

   For the sake of caution, in addition to the names of the complainants, the tendency witnesses, the parents and siblings of these witnesses, I have anonymised the names of the witnesses who gave evidence of complaints made to them by the complainants about the conduct of the appellant.

4. [22]

   The paragraphs that follow set out in summary form evidence adduced in the trial. As the evidence in the trial was given over seven weeks, I have not summarised all of the evidence but have considered all of the evidence in determining the grounds of appeal.

A summary of PW’s evidence

1. [23]

   PW gave evidence that he was born in 1966 and grew up with his parents and younger brother JW in Armidale. He commenced in Year 7 in 1979 at a … Catholic High School. Shortly after commencing, he was referred to the school counsellor ‘C’ after misbehaving in class. After being chastised, C told him that he wanted to talk to him about “relaxation techniques and things like that”. [1] He was asked to remove his shoes and move to a daybed. PW said that C “seemingly test[ed] [his] reflexes” [2] using a hammer. He was also asked to remove his socks.

2. [24]

   PW did not see C again until the following year. He was referred to C by the appellant’s wife who was a teacher at the school.

3. [25]

   PW testified that after C dressed him down verbally, C became consoling. PW was told to take off his shoes and socks and lie on the daybed. He was then told to unbutton his shirt. C massaged his feet, his legs working to his upper thigh towards his groin. C then touched his arms, shoulders and chest before working his way back down to the groin area. PW was directed to recall a holiday place, “a beach scene” [3] or similar. C then counted backwards from 20 while simultaneously suggesting that PW “fall deeper and deeper into a relaxation state”. He used a reflex hammer and stethoscope. He concluded by counting from 10 to 1 rapidly and snapping his fingers. An appointment was made for a week or two later.

4. [26]

   PW missed the next appointment and was later admonished in front of other students for doing so. C made another appointment for later that day. On the next appointment there was very little discussion. PW took off his shoes, socks, shorts, and shirt, so that he was only wearing his underwear. PW was again massaged on the daybed but on this occasion C also touched his genitals. An appointment was made for a week’s time.

5. [27]

   On the next appointment, C “first touched my anus and started to touch from behind as well”. [4] There were then regular appointments throughout 1980. PW would be masturbated to ejaculation. C made suggestions to return “through the hypnotic process” and there were also threats that the sessions were an alternative to detention and “you don’t want your parents to find out”. [5] C asked him questions about his parent’s sex life and introduced him to pornographic magazines.

6. [28]

   On another occasion, C asked PW to “hop up from my lying down position on my back to all fours and then he effected what I’d describe as a reach around position where he was masturbating me and touching my anus at the same time” [6] and PW ejaculated. After this, it then happened on a regular basis.

7. [29]

   Two or three months after he started seeing C, PW did something sexual to his brother JW, on two separate occasions directly after two consecutive appointments with C. These appointments were a week to a fortnight apart. The incidents with JW took place in the formal lounge room at their home when JW was approximately seven or eight years old.

8. [30]

   Around the time that C first touched PW around the anus, PW needed to see a dentist. He had previously experienced problems with a dentist who had been quite rough and PW also had an extreme fear of needles and dentistry in general. PW understood that his mother became aware of a dentist “using alternative techniques to needles”. [7] C also suggested to him that he see the appellant because he didn’t use needles but used hypnosis, relaxation and laughing gas. His mother made an appointment three to four weeks in advance.

9. [31]

   PW gave evidence that prior to the appointment C made a phone call to the appellant from his office when PW was present. PW spoke to the appellant who reassured him. After the phone call C told him to “effectively strip off, get onto the daybed” and then “did hypnosis, massaged me, touched me, stimulated me, masturbated me and penetrated me from behind”. [8] PW was on his hands and knees facing the bed when C penetrated him with his finger.

10. [32]

    In about October or November 1980, PW and his mother had an initial consultation with the appellant. The appellant explained the alternative techniques of hypnosis, relaxation, and what the appellant called “happy gas”. Afterwards his mother booked another appointment.

11. [33]

    About three months later, in early 1981 (when PW was 14 and in Year 9), PW attended the appointment for two fillings. His mother picked him up from school during school hours and dropped him off at the surgery but was unable to stay “because of her teaching arrangements she had a class at a different school”. [9] The appellant spoke to PW about the fillings and the techniques that were going to be used and then took PW through the relaxation process, a “similar technique to what had been used on [him] previously”, [10] which included counting down. Coming out of the relaxation was similar to the hypnosis and involved a countdown. PW returned home on his push bike, which had been taken to the surgery in the back of his mother’s station wagon and locked to the front fence for the duration of the appointment.

12. [34]

    The appellant’s surgery was located in 119 Barney Street Armidale. When PW was initially interviewed by police he was confused by the changes that had occurred in the area when viewing Google Maps and had cited the surgery as being exactly one block down from the actual site.

13. [35]

    PW saw the appellant a second time about three weeks later, this time riding his bike from school. After waiting, he was taken by the appellant to an area at the back of the surgery. Among other things, he saw a wooden massage-styled daybed with a navy coloured cushion. This was the first time that PW had been to this area. Nobody else was in the room and PW heard the dental assistant who had been present when he arrived lock up and exit through the back door, calling out to the appellant that the front door was locked as she left (at around 5:00pm). PW believed that other people who had been present when he arrived had left prior to the dental assistant.

14. [36]

    PW took a seat on the daybed as requested and was told that he did “really well” [11] with the relaxation and that they would continue with it to prevent further issues with pain and fear of dentists. The appellant began the process of hypnosis. PW’s shoes and socks were off, he was lying on his back, being counted down from 10, thinking of a place where he would feel safe and comfortable. The appellant started counting down to put him in a deeper trance. The appellant was saying things like “we are in a safe place…this is going to be good for you, relax, let go, become part of this process, you are safe here…nothing is going to happen to you”. [12]

15. [37]

    PW’s belt was already undone, his shirt was unbuttoned and the appellant “pulled it completely aside” [13] so that it was unbuttoned but still on. PW’s eyes were closed and the appellant told him to keep them closed. He then began to massage PW, starting at his feet and ankles. PW described the massaging as “a similar kind of technique to what [C] had previously done to me, had gone up my legs and he had particularly concentrated very very slowly progressing towards, um, my inner thigh and my groin”. [14]

16. [38]

    The appellant touched closer and closer to PW’s penis. When PW became erect, he thought that the appellant sensed that he was uncomfortable and “backed off a little”. [15] The appellant started touching PW’s chest instead, reassuring him, telling him “to relax and it was all okay, that everything was safe”. [16] The appellant said, “it was important that we did this relaxation” [17] and reassured PW again. The appellant then “dove his hands” [18] into PW’s shorts and rubbed his scrotum, penis and groin through his underwear. The appellant then pulled PW’s shorts down, pulled his underwear to the side and masturbated PW until he ejaculated (count 1). The appellant left the room and PW heard the radio and a muffled sound which PW believed was the appellant masturbating himself. When the appellant returned he cleaned up PW using tissues. The appellant told PW that it was normal, that it was important that they do it and that PW was progressing with the hypnosis and getting better at it.

17. [39]

    PW described his thought processes after he left, saying: “I was devastated that this was happening again. I was confused. I had mixed emotions of, I guess the adrenaline, the euphoria of having an orgasm, but the torment of what had just happened to me, the fact that I felt like I’d been passed from one person to another. I was questioning my sexuality in my head. A whole bunch of thoughts were running through my head at the time”. [19]

18. [40]

    PW went to see the appellant again within a week to a fortnight, on a Thursday, riding his bike and securing it to the fence. He was taken to the back of the surgery by the receptionist who he heard leaving through the back door prior to the relaxation and hypnosis commencing. While he was waiting he saw the appellant’s wife who left shortly thereafter.

19. [41]

    The appellant arrived and told PW that they had made some progress on the previous occasion and they needed to continue building on that. He had PW take off his shoes and socks, unbuckle his belt, undo the button on his shorts, and unbutton his shirt. He asked PW to lay on his back on the daybed. The appellant started talking about “relaxing again, picturing a happy safe place, the beach, the sound of the birds, the waves” [20] and being relaxed as he had done previously, followed by counting down from 10 to 1 whilst telling PW that he was “going to a next level of relaxation and deepness within the hypnosis”. [21] PW’s eyes were closed. After the countdown, the appellant began massaging him, starting with his feet and working his way up both legs, particularly his inner thighs. The appellant pulled aside his shirt and rubbed his chest, then lowered PW’s trousers and underwear and fondled PW’s groin area, including his penis, scrotum and inner thighs. The appellant cupped PW’s testicles and stroked his penis with his hand which resulted in PW’s penis becoming erect. PW then described the appellant as being “quite quick, rougher than the previous time”, [22] causing PW to ejaculate quickly (count 2). He was there for about an hour. Another appointment was made and PW left through the back door and rode home on his bike.

20. [42]

    PW did not pay the appellant for the appointments and was concerned about the cost. At this appointment the appellant reassured him that “this was something that we were doing for my good and money was not involved and I didn’t need to worry about money”. [23]

21. [43]

    PW gave evidence of a third appointment (relied upon by the Crown as context evidence) where he was directed to put his bike out the back and enter through the back door. PW was told again to take off his shoes, socks, shirt, and shorts on this occasion, which left him in his underwear. PW got on the daybed and lay with his eyes closed while he was taken through the same sequences as before with the beach scene, counting down from 10, and commencement of massaging. PW’s genitalia, including his testicles and penis, were then massaged and “stimulated”, [24] causing PW’s penis to become erect, and eventually causing PW to ejaculate.

22. [44]

    A fourth appointment took place at around 5:00pm a week or two later. PW arrived on his bike, locked it out the back and entered through the back door. PW chatted with the appellant for a couple of minutes before PW was asked to take his shoes and socks off, which he did. The remainder of PW’s clothing was “completely removed”. [25] PW was told that things had been progressing really well, that they should continue, and that they would get started with the hypnosis straight away. The appellant commenced with the counting technique and thinking of a happy place or comfortable scenery whilst PW was lying on his back on the daybed. The appellant “physically touched all over” PW’s body and he was “stimulated and masturbated again” [26] around his groin, scrotum and penis. PW said that he was “masturbated with a hand job on the shaft of my penis”, as well as “touched on the anus until I ejaculated” [27] (count 3). Before leaving, an appointment was made for the following week. PW then left through the back door and rode his bike home.

23. [45]

    PW again rode his bike to the next appointment (which he thought was on a Thursday), securing his bike at the back. He was running late as it was after 5:00pm and starting to get dark earlier because it was mid-year. PW entered through the back door and saw the appellant standing next to the bed. The lights were on. PW sat on the daybed and removed his shoes, socks, shorts, and shirt. The appellant started another session of hypnosis. Whilst PW was lying on his back, the appellant used the counting down technique, after which the appellant massaged and fondled PW’s groin, penis, scrotum, and anus. PW’s penis became erect and the appellant continued masturbating PW until he ejaculated (count 4). PW estimated that this session took about an hour, after which he rode his bike home.

24. [46]

    After this incident PW had a further 15 to 20 (or more) appointments with the appellant. During the school term the appointments were either weekly or fortnightly depending upon commitments. At each appointment only the appellant and PW were present and they followed the same pattern: “relaxation, hypnosis, fondling, massage, masturbation, ejaculation”. [28]

25. [47]

    PW had another appointment with the appellant around the beginning of the third term of school when PW was in Year 10 in 1982. This would have been at the end of August. PW was 16 years old at this time. The appointment was after 5:00pm. PW rode his bike there and locked it at the usual spot at the back. He entered through the back door of the surgery and saw the appellant, who beckoned him towards the daybed. PW removed his shoes and socks when he sat on the bed and the appellant told him to remove his school uniform, which he did. The appellant told PW to remove his underwear and helped him do so. A session of hypnosis and relaxation commenced; the appellant indicating that PW was progressing well, telling him to relax, focus on his happy place, and then counting down from 10 to 1, touching PW “in the usual way” from his feet up his legs towards his thighs, his chest and arms and then his groin. The appellant “got [him]” to open his legs further and then started touching PW’s penis, scrotum, testicles, and anus. PW’s penis became erect and the appellant then masturbated PW until he ejaculated (count 5).

26. [48]

    Following on from count 5, PW said that he was left alone on the daybed before the appellant returned with C. He then described an incident of sexual abuse that occurred with both the appellant and C present. Count 6 arose out of PW’s evidence that during the incident the appellant and C, whilst wearing rubber gloves, used large quantities of Sorbolene cream which they rubbed into PW’s groin, penis, scrotum, and anus for five to 10 minutes. Count 7 (and the alternative count 8) arose out of PW’s evidence that the appellant inserted his fingers into PW’s anus after C had done so.

27. [49]

    PW continued to see the appellant, he felt “compelled to go back to him” because the appellant “would always say before he brought me out of the hypnosis that we need to continue the treatment” [29] and a further appointment would be made. PW described a “new norm”, which included the appellant digitally penetrating PW to ejaculation.

28. [50]

    PW gave evidence that he was still seeing C separately at the school, however this was less frequently. He was also seeing C at his day clinic which was located next door to the appellant’s surgery in town – this was becoming more frequent. He said that the daybed at C’s clinic had a face hold and was very different to both the appellant’s daybed and C’s daybed at the school. PW’s father was “not impressed” [30] that PW attended appointments at C’s clinic and became angry. It culminated in a “big argument” between PW and his father with “a lot of violence around that” and PW left home in 1983 when he was 16 years old and in Year 11. [31] The principal of the school Brother Cantwell assisted PW with finding accommodation at the Monastery next door to the school.

29. [51]

    PW gave evidence that he spoke to a school friend, GM (deceased at the time of trial), in early Year 11 in 1983 who told him that he wore his sister’s underwear at one of the hypnosis sessions with C, enabling GM to walk away. PW stole some underwear from his neighbour’s clothesline and subsequently wore them to a session with C which made C really angry and PW “told him to fuck off, I wasn’t coming back”. [32] A week earlier PW had tried the same thing with the appellant who had a strong reaction, calling him “a pansy” and asking him to take them off. PW refused and said something like “at least I’m not, you know, at least I’m not a faggot”. [33] PW then left without commencing any session with the appellant that day.

30. [52]

    PW was an altar server with the church. When he was in Year 11 and leader of the altar server group, he was approached by two younger altar servers who complained to him of inappropriate conduct by a priest towards them. PW said that he approached Bishop Kennedy (deceased at the time of trial) and told him about the altar boys, C and the appellant, naming him. Bishop Kennedy took him to (the administrator) Father Ross O’Brien’s room and left him with Father O’Brien. Father O’Brien gave PW a “fairly brisk dressing down”, telling him that it was a “very serious matter” and “if it was true, then this was a very serious situation” and the police needed to be involved but that PW was “just a teenager with a wild imagination” and that no one would believe him over somebody who was a school counsellor, a dentist or a priest. [34] Father O’Brien pulled out a pen and notebook and then handed PW a form to fill it. PW commenced filling the form out but was told to stop by Father O’Brien. Father O’Brien said, “I think we need to get the police involved in this on the phone, so I’m going to get them now”. [35] Father O’Brien made a call to somebody that PW believed to be the police. PW could only hear Father O’Brien’s side of the conversation, although he could hear a male voice in the background. Father O’Brien recounted what PW told the Bishop and what PW had told him, and “reiterated what he said to me, you know, it was scandalous, and I wouldn’t [be] believed, and that [C] worked for the police who was like the New South Wales truancy officer or something”. [36]

31. [53]

    Father O’Brien then handed the phone to PW. The male on the other end of the line introduced himself with a name and “some kind of rank” [37] which led PW to believe they were a police officer. Over two or three minutes, the male on the line said:

32. [54]

    The call concluded with PW being told that the male would get back to him. PW handed the phone back to Father O’Brien as instructed and Father O’Brien said into the phone, “Yep, okay. Thank you. Good I’ll talk soon”. PW gave evidence that Father O’Brien after the phone call:

33. [55]

    About a week later PW was sent to C’s office by the appellant’s wife and, after waiting some time, PW saw the appellant and the priest who he had complained about leaving C’s office. He received scowls and was given the “evil eye”. [40]

34. [56]

    After the appellant and the priest departed, C said to PW ““You, get in here” and demanded really gruffly”. [41] C then said things to PW similar to what had been said by Father O’Brien and the police officer, namely that PW was a teenage kid, that “If this gets out, you’re in strife”, and that “Nobody is going to believe you. Your friends aren’t going to believe you, your teachers aren’t going to believe you. You’re going to have no trust left” and that “…your parents don’t trust you. Your parents don’t care”. C threatened that if he spoke about it any further that there was going to be trouble and the police would not believe him.

35. [57]

    Having seen the appellant, C and the priest, PW said he was really scared. He was fearful for his own safety as he did not know what they were capable of and they were obviously sharing information.

36. [58]

    In 1984, when PW was in Year 12 and after he had turned 18, he went to Armidale police station to attempt to report the matter but was unsuccessful. PW said that he told the officer at the counter that he wanted to report some crimes but would not do so at the front counter. The officer at the counter told him, “[Y]ou can say anything you’ve got right here at the counter, and you’ll have to deal with me” [42] (PW believed that the person at the counter knew who he was). PW realised he wasn’t going to get anywhere and left.

37. [59]

    Later, in 1985 when he was working at a radio station 2AD he had a “light conversation” with an announcer at the station, SR, telling him that he tried to complain to police but he had been “verbalised and threatened and pushed away and not listened to”. [43]

38. [60]

    PW also said that in 1985 he had a conversation with a highway patrol sergeant called “Peter”. He told Peter that he had some issues that he needed to bring to the police’s attention and he believed there had been a cover up by police. The officer told him to go to the police station and ask for the station sergeant. PW went to the police station and told the counter officer that he had allegations to make that were very serious. A police sergeant, who saw him in a private room, told him that “these kind of allegations aren’t going to be believed by anybody, that the, the nature of, of my complaints, you know, aren’t going to be able to be proved; that there’s nothing to – for them to investigate”. [44] The sergeant then asked who the complaints were against. PW named the appellant, C, the priests and identified the places where the offences took place. The sergeant did not make any notes throughout the conversation. PW said that he wanted to make an official statement but he “wasn’t allowed”.

39. [61]

    PW gave evidence that between 2005 and 2007 he spoke to his former partner CH about the appellant, giving her specific details.

40. [62]

    PW made a statement to police over four days from 17 November to 20 November 2013.

The recorded conversation

1. [63]

   PW gave further evidence concerning discussion he had with police in August 2014 in relation to being fitted with a recording device and with meeting the appellant near the Armidale Tourist Information Centre.

2. [64]

   He had a conversation with the appellant on 5 August 2014, which included whether he remembered PW. The appellant “indicated that he sort of did but wasn’t really sure”. [45]

3. [65]

   At about midday on the same day, after being assisted by detectives with a recording device, the appellant had a conversation that was recorded.

4. [66]

   The recorded conversation (Exhibit 10) was played to the jury.

5. [67]

   The recorded conversation included the following exchange after PW referred to bedwetting and hypnosis becoming “wrapped around the subject of bedwetting”:

6. [68]

   The appellant asked PW why he kept returning “if things weren’t right” and PW replied “Because you had hypnotised me”. The appellant denied knowing C. PW said “You had lots of dealing with him. He was even there”. In further conversation, when PW put to him that his appointments were weekly or fortnightly, the appellant replied, “That is odd”. PW said he would ride his bike in “…and you got me to put my bike in, lock it up at the back rather than at the front.” PW further said: “Lock it up to the downpipe. Remember the awning you had at the back there. You had me lock my bike around that as opposed to locking it to the front fence, which I did on the first appointment”. When the appellant said “You couldn’t lock it on the front fence anyway could you?”, PW replied “Yeah, on the wire”. The appellant said the front fence was brick so there was no place a bike could be locked on it. The appellant did not remember the wire between the pillars on the front fence. The appellant questioned PW by asking, “Yeah? Why would I have asked you to lock your bike on it?” PW responded, “Because I wanted to make my bike secure because I used to race bikes with you know, [JB] was my coach. You’d remember me…”

7. [69]

   PW asked why the appellant picked him to which the appellant replied:

8. [70]

   PW told the appellant that C had referred him so he could get hypnosis instead of needles. The appellant said, “- - - that was for the teeth, for the dentistry”. PW said the appellant let C in, and C watched and sometimes instructed.

9. [71]

   The appellant said “Ah, I hope you didn’t interpret, ah, something wrong in what we were doing”. PW replied:

10. [72]

    The appellant said: “Was I?”

11. [73]

    There were further exchanges between PW and the appellant which included the appellant denying recognising PW earlier that morning. The appellant said he did not recall, “it’s not ringing any bells”, he believed he “didn’t do anything” and what PW told him “doesn’t fit into the style of anything … what I was doing”.

12. [74]

    The appellant said he did not know C and did not know C practised hypnosis. He said he only knew one other in town who did. The following exchange occurred between PW and the appellant:

13. [75]

    PW’s recollection of the unrecorded telephone conversation with the appellant on 6 August 2014 including the following:

A summary of JW’s evidence

1. [76]

   JW was born in 1972 and is the younger brother of PW. He lived with his family in Armidale, attending a local Catholic primary school, and the same … Catholic High School as PW.

2. [77]

   JW knew someone he referred to as “the older boy” when he was in primary school. The first time something happened was in 1981 or 1982 when the older boy tried to use something like hypnosis on him.

3. [78]

   The first time JW attended the appellant’s surgery was in March or April 1981, when he was nine years old, for a check-up and to have his teeth cleaned. He was not aware of any particular reason why he went to the appellant, however, he did have a fear of needles from attending a school dental clinic in 1980.

4. [79]

   JW’s mother collected him from school and took him to the dental surgery. On this first occasion, JW went into the treatment room with his mother, the appellant and a dental assistant (who was a young woman). The appellant appeared old, short and skinny with a neat haircut. After the appointment, his mother had a discussion with the appellant who said he could help JW with his fear, with hypnosis being mentioned. JW and his mother were taken into the hypnosis room to see the space. JW described the room and said that it contained a single bed and a chair. His mother appeared excited and positive and arrangements were made for him to return. JW said that his mother asked if she could be present for the hypnosis itself, but the appellant said it was essential for him to be alone with JW for the hypnosis to work.

5. [80]

   JW said that he returned for a second appointment within a fortnight on a Thursday at 5:00pm. His father drove him and they waited during which time the receptionist left through the front door. The appellant then told JW’s father the session would take 45 minutes to an hour and his father was to return to pick him up at a certain time, after which his father left.

6. [81]

   After waiting for a few minutes, the appellant called JW into the hypnosis room and asked him to sit on the edge of the bed. The appellant “explained to me what he was going to do…explained to me what hypnosis was and that my parents had asked…him to try hypnosis to get me over my fear of medicals. He explained what sort of wording he would use and how I was likely to feel…He then took a metal watch, silver-banded metal watch, held it up in front of me and proceeded to count down, interspersed with various verbalisations such as “you are relaxed”; “you are getting sleepy”; “when I get to zero you will be fast asleep””. [47]

7. [82]

   The appellant told JW that he would free him of his fear, he was safe, he would feel relaxed, he would not remember anything when he was hypnotised, and he would be asleep. The appellant said he would reverse the countdown from zero up to 10 and when he arrived at 10, JW would be fully awake and alert, as well as safe and happy, and he would not remember anything from the session.

8. [83]

   JW was sitting on the bed with his eyes open at this time and remained on the bed whilst the appellant took him through a countdown from 10 to 0. The numbers would be counted out three or four at a time, and then verbalisations in between those. When the appellant arrived at about “two”, JW’s eyes were closed. He did not recall the clothes he was wearing. When the appellant arrived at zero, he “verbalised” for JW to lie down and guided with one hand on his chest and the other on the back of his head until he was on his back.

9. [84]

   The appellant then said a “range of positive or supportive verbalisations” such as “You are feeling relaxed”, “You are safe”. [48] JW had on all his clothes except for his shoes. The appellant began rubbing his forehead, after which he spent a period of time gently touching him on the chest, his stomach, his “clothed groin” and then his upper thighs. A similar amount of time was spent on each part. The appellant then returned to JW’s groin area and undid JW’s fly and button on his long pants, pulled his pants down slightly and touched his underwear for a minute or two. He then pulled JW’s pants right down and his underwear to just above his knees. The appellant then used his hand to fondle JW’s genitalia, which included his pubis, penis, and testicles, by gentle touch and rubbing (count 9).

10. [85]

    JW still had his eyes closed when the appellant left the room but he was not feeling hypnotised. He pulled up his pants, sat on the edge of the bed and watched a black and white portable television screen which was on the southern wall. JW heard “[a] shuffle and a thump” [49] so he lay back down and closed his eyes. The appellant came in, came over to the bed and repeatedly tapped the middle of JW’s forehead with his fingers. The appellant then quickly went through the same actions of touching JW’s forehead, chest, stomach, and pulled JW’s pants down again. The appellant again fondled JW’s genitalia by softly touching his pubis, penis and testicles for about five to 10 minutes (count 10). JW did not feel hypnotised. The appellant then pulled JW’s underwear back up, with JW lifting his hips off the table to assist with this process. The appellant pulled up JW’s trousers and did up his fly. The appellant then did the “reverse” whereby he touched the outside of JW’s pants, his clothed groin, stomach, chest, forehead, and gave verbalisations to count him out of the process. The appellant counted from one to three and then said, “You are slowly waking up, you do not remember what’s going on in the session and you’re are [sic] feeling – you – you’ll feel awake and alert and safe when the countdown finishes”, [50] counted up a further three numbers, gave another verbalisation, and then another three or four numerals and a verbalisation. The appellant asked him how he was and JW said he was fine.

11. [86]

    JW believed that before he was counted out of the hypnosis, his father had knocked on the door, causing the appellant to leave the room and answer the door. They had a conversation that JW could not hear. JW’s father was in the waiting room when the session concluded. His father wanted to see the space so the appellant invited him into the room while JW was still on the bed. The appellant explained the hypnosis process and asked JW how he felt. JW’s father also asked him how he felt and then they left.

12. [87]

    JW’s mother took him to the dental surgery the following Thursday at 5:00pm. She took him inside then left. He said on this occasion he was again subject to a massage along the lines of the previous massage, culminating in the appellant fondling his genital area which involved soft touch of his pubis, penis, and testicles. The appellant then stroked and rubbed JW’s penis with a thumb, index finger, and tall finger, the stroking and rubbing of his genital area lasting for five to 10 minutes. The entire session took 45 to 50 minutes. JW did not recall leaving the premises but did recall going home with his mother. Apart from school holidays, JW believed that he attended the appellant’s surgery every Thursday at 5:00pm for a period of 18 months. The sessions in the first three to four weeks were similar with no change in what the appellant did to JW.

13. [88]

    During one of the Thursday afternoon sessions about three to five weeks after the sessions had started, the appellant did something new. JW did not recall how he arrived at the surgery or going into the surgery on this specific occasion. The appellant used verbalisations and the hypnosis technique, using the same words as on the previous occasions and in this incident, a wristwatch. The appellant pulled JW’s pants down and fondled his penis and testicles (count 11). The appellant left the room at some point.

14. [89]

    After the appellant re-entered the room, he kissed JW on the lower abdomen and then on the pubis and then on the penis (count 12). His mouth came in contact with JW’s body for several minutes. After the appellant had finished kissing JW’s penis, the “wake up part” [51] of hypnosis was applied, his pants were pulled up and the previously described technique of touching the lower part of JW’s body, back to his forehead, and then counting up was done. After the appellant kissed JW’s penis, JW was in the room for between five to 10 minutes. JW did not feel affected by hypnosis during this incident. He did not recall what he was wearing on that day or how he got home.

15. [90]

    Over the next one or two sessions, the appellant progressed to sucking JW’s penis. This commenced about seven to eight weeks after the first session. On the occasion that this first occurred, JW did not recall the time that he went to the surgery. He was in the hypnosis room when the appellant went through the hypnosis process as previously described. JW was laid down on the daybed and taken through the touching from his forehead to his groin with verbalisations. His pants were pulled down, his genitalia were fondled, and the appellant left the room for five to 10 minutes during which JW heard a noise, and he pulled up his own pants. When the appellant returned, he rapidly touched JW’s forehead, chest, stomach, and groin. The appellant pulled down JW’s pants again to below his knees, fondled JW’s genitalia, and kissed him from below his belly button to his penis whilst continuing to fondle him. JW did not give permission to the appellant to do these things to him. When his penis was being kissed there were no verbalisations because they had ceased when his chest and stomach were being touched. When his penis was being kissed, the appellant was also touching it with his fingers. JW recalled his penis being sucked on this occasion (count 15). JW’s eyes were closed. He did not feel that he was hypnotised. He was still able to pull his pants up and sit up on the bed and observe the television although he could not recall what was being shown on it.

16. [91]

    JW recalled very early on in the “oral phase” [52] and a couple of other times (that he was unable to place in time), he looked at the appellant through half closed eyes. On an occasion during the oral phase, he thought that the appellant caught him looking through half closed eyes. The appellant exhaled sharply with a stern look on his face. JW then closed his eyes and felt repeated tapping on the middle of his forehead. JW described two further sessions where the appellant sucked his penis that were very similar to the first occasion. This occurred on other occasions up until the holidays in September and October of 1982. JW was able to recall this timeframe because those holidays were a “reprieve” [53] because he did not have to go to the appellant’s surgery for hypnosis.

17. [92]

    About three months after the initial visit with his mother there was another phase. This phase followed the same process including the use of the watch, verbalisations, and count down. The appellant continued to the point of undoing JW’s clothing, pulling his pants and underwear down to below his knees, touching JW’s genital area and then kissing and sucking JW’s penis (count 18). The appellant then left the room for a short time. When the appellant returned to the room the first instance of a new phase occurred. The appellant touched JW again by fondling his penis, and then reached under JW’s right leg and put his fingers around JW’s anus with a soft touch for approximately five to 10 minutes (count 19).

18. [93]

    JW did not feel hypnotised on this occasion. This incident occurred about three months after the first appointment he attended with his mother. JW could not recall the specific building of the appellant’s surgery but recalled “cutting [a] corner”, [54] that is, entering on one corner and exiting on another, when walking his bike through the service station after leaving the appellant’s surgery on his way home.

19. [94]

    The next week, JW sat in the waiting room while the appellant got ready. JW then followed him into the hypnosis room. The appellant went through the “motions and verbalisations” [55] of attempting to hypnotise JW and then lay him down on the bed. The appellant touched him on the forehead, chest, stomach, and groin while doing the verbalisations. The appellant pulled down JW’s pants, fondled and kissed his penis, and then left the room (count 20).

20. [95]

    JW pulled his pants back up, sat up, and watched television. When he heard a noise, he lay back down. The appellant re-entered the room, pulled JW’s pants back down, fondled his penis and put his hand under JW’s right leg, “feeling around [his] anus”. [56] The appellant lifted JW’s right knee with his right hand and applied pressure whilst the appellant’s left hand was on JW’s shoulder also applying pressure, causing him to roll over towards the wall. The appellant positioned JW’s legs so that his knees were together. The appellant then “probed around” JW’s anus with his fingers and then a finger entered JW’s anus (count 21). JW felt scared, shocked, confused, and “didn’t really know what was going on”. JW experienced a mild discomfort without pain. He felt the desire to expel what had been entered in his anus; his anus contracted like “[he] needed to poo”. The finger remained in JW’s anus for “a matter of minutes”. JW did not give permission for the appellant to put his finger in his anus. The appellant did not say anything to JW when he was doing this; there were no verbalisations after his chest or stomach had been touched. JW recalled leaving the hypnosis room but not the building. He did not feel hypnotised but felt he “didn’t have control over my body to some extent”. He explained that he was not comfortable in that position, “facing the wall and having somebody else’s finger inside me”, but he “felt powerless” to move or move himself out of the situation.

21. [96]

    JW continued to see the appellant. He thought that the hypnosis started to take effect from about the time that he was first digitally penetrated by the appellant and most of his memories stopped from then. He had a “reprieve” over the autumn holidays (he believed in 1982) and after that he refused to go back. JW said that he subsequently went to another dentist who “refused to serve [him]…Because [he]’d soiled [him]self”. [57]

22. [97]

    JW did not pay for the visits but he believed his parents paid $10 per appointment because he recalled a conversation with his mother where she said something to the effect of “We spend $10 a week to send you there, you need to go”. [58]

23. [98]

    JW gave evidence that he first heard the name C within a week of starting at … Catholic High School when PW told him “Don’t ever go into his office and don’t ever be alone with him.” [59] JW’s evidence about C included C approaching him in the school grounds on multiple occasions and encouraging him to come and see him for help. He was in class one day when his teacher was told that JW was required. JW was taken to C’s office where C explained he was going to do some relaxation exercises with him. C produced a ballpoint pen, held it in front of JW’s face and asked JW to follow the tip of the pen with his eyes. C gave verbalisations that were familiar to him, such as a countdown from 10 to 1. After about number three or four, JW blacked out.

24. [99]

    JW was unable to isolate a memory of waking up from blacking out in C’s office. He said “I have no link between set occasions in [C’s] office and my few memories of waking up”. [60] JW could recall two or three times of being at C’s door, but did not recall with his “visual memory” in the room. JW said:

25. [100]

    JW first started getting haemorrhoids around that time, in about Year 8.

26. [101]

    JW said that he did not tell his parents about what the appellant had done to him out of fear and he also believed it had something to do with the verbalisations that were used. He did not tell his parents what occurred with C out of fear, isolation, and mistrust of his parents.

27. [102]

    When he was 16 years old, he told “Mel” and her girlfriend that he was being abused by Bill, a neighbour, in the caravan park. He told them he “had [a] history of sexual abuse with other people in Armidale, and that [he] couldn’t deal with it anymore”. [62] He did not give them names but spoke about the dentist and the school counsellor. Bill did not use hypnosis on him.

28. [103]

    In the first six months of 1989, he spoke with a group of people which included JM and VH. He told them about the older boy, the appellant and C without naming names or identifying labels.

29. [104]

    He gave further evidence of disclosures that he had made to TS and AW. He had several conversations with TS in 2010 in relation to the older boy, the appellant, and C. He told AW about what happened to him and named the appellant and C.

30. [105]

    JW said that in the late 1990s, his mother asked him if he had been abused by the appellant. He told her he had been but did not give her details about what had happened. He told her he had been abused by multiple people. It was a brief conversation.

31. [106]

    JW said that he never spoke to PW about what had happened to him over the period he had given evidence about. When JW became a parent in 1992, he asked PW if he had been abused by the appellant and PW replied “yes”. [63] He asked if he had been abused by C and PW replied “yes”. PW then told him “not to ask him any more questions ever again”.

32. [107]

    JW saw Jane Clark, a psychologist in Armidale in 2010 and a psychiatrist, who was a Sri Lankan with a surname commencing with “V” in 2012. He also saw Maria Selvey, a psychologist in 2012.

33. [108]

    Around the time he was seeing Ms Clark, he applied for criminal compensation through a free legal service. The claim related to the older boy, the appellant, C, and Bill.

34. [109]

    JW made his first complaint to police in 2011.

A summary of SF’s evidence

1. [110]

   SF was born in 1968 in Armidale. SF commenced Year 7 in 1981 at a local high school.

2. [111]

   SF gave evidence that he was in primary school when he first attended upon the appellant’s dental surgery. His mother always attended those appointments with him. At the start of 1982, the appellant extracted SF’s wisdom teeth. SF gave evidence that he returned to the appellant on a subsequent occasion in early 1982. SF had been misbehaving; his father removed the bolt out of SF’s rifle as punishment and directed him to attend upon the appellant to improve his behaviour.

3. [112]

   On the first occasion, SF attended the dental surgery with his mother. He was in Year 8 at school and he was wearing his school uniform. The appellant took SF into a back room while his mother remained in the waiting room. The appellant told SF to lie down. The appellant had something in his hand which he moved in a pendulum or swinging motion. The appellant clicked his fingers and counted down. The session lasted 15 to 20 minutes. The appellant did not improperly touch SF on this occasion.

4. [113]

   SF returned to the appellant the following week. SF’s mother took him to the appointment. The appellant took him to the back room where they were alone together. The appellant told him to remove his trousers so that SF was wearing his underpants. SF lay on the bed. The appellant attempted to hypnotise SF by dangling an object and counting down. SF’s eyes were closed. SF felt the appellant’s hands rub and brush over his testicles and penis. It lasted for about 10 to 15 minutes until the appellant counted back and clicked his fingers. SF did not feel hypnotised.

5. [114]

   SF returned to the appellant the following week on a Wednesday or Thursday. He again attended the surgery with his mother. He entered the back room where he was alone with the appellant. The appellant told him to take his trousers off and get onto the bed. He dangled an object in front of SF and counted backwards. SF’s eyes were closed but he was not asleep. He was lying down on the bed. SF felt the appellant’s hands on the outside of his underpants rubbing against his testicles and penis. This lasted for about 15 to 20 minutes. SF dressed himself and returned to his mother in the waiting room.

6. [115]

   SF attended the surgery on a further four to six occasions. On each occasion, the appellant purported to hypnotise him before improperly touching him.

7. [116]

   SF attended the dental surgery again when he was in Year 10 in 1984 after an accident that knocked his two front teeth out. SF did not want to return to the appellant’s surgery after his prior experience, however, he acquiesced when his mother said he had to go as she was paying for the treatment. He then recalled returning for another and final appointment when one of the repaired teeth broke off.

8. [117]

   SF first disclosed the alleged conduct in 2014. His wife told him that a dentist in Armidale had been arrested for offences against children. She had learnt of this from watching television. SF responded by disclosing the alleged abuse to his wife. She encouraged him to report this to the police and SF made a statement to police in October 2014.

A summary of ST’s evidence

1. [118]

   ST was born in 1970. He gave evidence that he attended upon the appellant in 1979 or early 1980. His mother took him to his first visit which was only an assessment with no dental work performed.

2. [119]

   ST attended on a second occasion to have a tooth removed. His mother dropped him to the appointment. ST was tense about having a tooth removed. The appellant had his hand on ST’s shoulder and forearm. He encouraged ST not to be tense and to calm down. ST believed he passed out during this first extraction. ST’s mother collected him from the appointment about 45 minutes to one hour later. No other area of his body was touched at this appointment.

3. [120]

   About three to four weeks after the first visit, ST returned for another extraction. He believed it was after school. He was dropped to the surgery by his mother. The appellant administered a needle. He rubbed his shoulder and forearm telling him, “[d]on’t be so tense…I’m not going to hurt you. You’re a highly strung kid”. [64] He did not pass out on this occasion.

4. [121]

   After a further month, ST returned to have a plastic mould fixed to his bottom teeth. He was wearing his school uniform. ST was stressed. The appellant rubbed his shoulders, forearm, and stomach for “quite an amount of time”. [65]

5. [122]

   In late 1980 or early 1981, ST returned to the appellant’s surgery. He was about nine or 10 years old. It had been six months since his last visit. He attended to have the plastic mould removed. ST was “uptight” [66] about the procedure. The appellant rubbed his shoulder, forearm, stomach, and outer thigh through his school uniform. The appellant said “trust me, I’m not going to hurt you” [67] which he repeated in a monotone voice as if it were a mantra. The dental session was conducted in the dental surgery room and lasted between 45 minutes to one hour.

6. [123]

   ST returned to the appellant to have the dental plate re-cemented. In late 1981, six months after the plate was reinserted, it was removed for the second time. The appellant rubbed ST’s shoulder, stomach, thigh, forearm, and told him to calm down. ST recalled that at each consecutive visit, the appellant’s physical contact escalated. After the appellant removed the plate, he slid his hand up ST’s thigh underneath his shorts. He touched ST’s penis and testicles on top of his underpants for between 30 seconds to 1 minute. There was no other staff member present at this appointment. ST’s mother collected him from the appointment. He gave evidence that he did not see the appellant or another dentist after this visit.

7. [124]

   ST first complained to his wife in 2015. He decided to go to the police after he saw a newspaper article about the appellant. He made a statement to police on 20 May 2015 which was about one month after he disclosed the alleged conduct to his wife.

Tendency evidence

1. [125]

   Before the jury was empanelled, the trial judge heard argument over a number of days which included an application for separate trials by the appellant and consideration of the Crown’s notices of an intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW).

2. [126]

   In a judgment delivered on 2 August 2017, the trial judge dismissed the application for separate trials and ordered that the trial proceed on all 26 counts on the indictment. Her Honour further decided that the Crown was entitled to adduce evidence of each of the complainants as tendency evidence, which was cross-admissible in respect of each count and the evidence of OW, CW, MR, and JC (conveniently referred to as “the tendency witnesses”) to prove that the appellant had a tendency to have a sexual interest in young males and had a tendency to act on that state of mind by either of the following activities or a combination of those activities:

   1. (1)

      to exploit his position as a dentist for his own sexual purposes; or

   2. (2)

      to display a sexual interest in teenage, or pre-teenage boys; or

   3. (3)

      to fondle the penis and testicles of teenage and pre-teenage boys; or

   4. (4)

      to masturbate teenage and pre-teenage boys; or

   5. (5)

      to use hypnotherapy as a tool to engage in inappropriate touching of teenage or pre-teenage boys; or

   6. (6)

      to insert his fingers or fingers into the anus of teenage and pre-teenage boys.

3. [127]

   The first tendency witness called by the Crown was JC. He was born in 1974 and commenced as a boarder in an Armidale school in 1986. He gave evidence that he was 12 or 13 years old at the time of his first appointment with the appellant. He said he told the appellant that he was nervous about dental treatment and the appellant told him that he had several ways he would be able to help him. He could hypnotise him or give him a massage. He had several visits. On one of those visits, in relation to massage, the appellant told him to loosen his belt, which he did. The appellant put his hands down underneath JC’s pants, on top of his underpants, and massaged the top of JC’s thighs on both legs close to where the line of his underwear would sit. The massage was “[v]ery close” [68] to his genital area and the appellant’s hands passed over his penis. JC had his eyes closed.

4. [128]

   JC said that the experience made him feel very uncomfortable, but he did not say anything. He gave evidence that the appellant was repeating “relax - relax” in a quiet voice. JC could not recall if the hypnosis occurred before the massage but he thought so.

5. [129]

   The second attendance occurred one or two weeks later for root canal treatment the appellant used hypnosis to help him stop biting his nail.

6. [130]

   JC recalled being hypnotised on one occasion and being massaged on one occasion. He told his mother about the massage, he thought between a day or a couple of weeks later. He recalled saying to his mother that the dentist touched him. He either said on his groin area or on his penis.

7. [131]

   In 2014, JC saw a news article in relation to a dentist who had been charged with sexual offences. He conducted an internet search and found the appellant’s name. He made a statement to the police on 25 February 2015 which was the first time he had spoken to a police officer in relation to the incident.

8. [132]

   The next tendency witness was OW who was born in 1974. He first went to see the appellant when he was five or six years old and saw him once a year for check-ups, toothaches or fillings. He stopped seeing the appellant in the mid to late 1980s.

9. [133]

   OW gave evidence that sometime between when he was six and 11 years old, an event occurred when he was in the dentist’s chair. He said the appellant rubbed his right arm. He noticed the appellant’s penis becoming semi-erect and there was a bulge in the appellant’s pants. His recollection was that this occurred on at least one occasion.

10. [134]

    After this occasion, OW returned for a non-dental related appointment with the appellant when he was around seven to nine years of age – between 1984 and 1986. His mother dropped him off and told him there was a treatment that she wanted him to experience. The appellant took him through reception and down the corridor to a room on the left. The appellant asked him to remove his shoes and socks and get on the bed. He was further asked by the appellant to lie on the bed, his head on the pillow, close his eyes, and imagine he was on the beach. The appellant started touching OW’s feet first, followed by his legs with both hands. The appellant worked his way up to his thighs and groin area. The appellant may have touched his genitals because “[i]t was close”. [69] He could not say for how long the appellant touched that area. OW thought he must have “squirmed” [70] because it was inappropriate and made him feel uncomfortable.

11. [135]

    OW recalled that throughout the touching, the appellant was saying to him that he had been a naughty boy and that he could help him but that OW must not tell anyone. OW said that he was on the bed for at least half an hour. He thought that it might have been on the weekend as there was nobody else in the surgery.

12. [136]

    OW was picked up by his mother and taken home. He did not tell her what had occurred.

13. [137]

    A week or two later, his mother took him to the appellant’s surgery along with his brother and sister. As they approached the front door, OW described “sheer terror, overwhelm[ing]” him. [71] He fled down the street. He never went back to see the appellant again.

14. [138]

    OW gave evidence that he first told someone about what had occurred “four or five years ago”, [72] prior to making his statement to police on 5 November 2014. He calculated that it was about eight years prior to giving evidence. He said that his statement to police was made after his brother CW sent him an email advising him that the media were reporting that the appellant had been charged with sexual offences. After speaking with CW, he decided to go to the police.

15. [139]

    MR was born in 1973. The appellant was MR’s family dentist.

16. [140]

    MR saw the appellant in either Years 10, 11 or 12 in relation to a plate that was in his mouth due to crowding of his bottom teeth. These appointments took place in the dental chair in the main room in the surgery.

17. [141]

    MR gave evidence that he saw the appellant for hypnosis to help with his schooling and his grades. The hypnosis sessions occurred in a room towards the back of the surgery on the right. There was a bed and chair in the room.

18. [142]

    MR said that he never felt as though he was hypnotised. He said that he lay on the bed and the appellant sat on a stool or chair facing him. MR said that the appellant started massaging him around the lower ankles and lower legs and as the session continued it built up so that the appellant was massaging him on the deep inner thigh area. He only recalled the appellant using one hand. When the appellant’s hand was at MR’s thigh area, it would brush against MR’s underwear where his penis and scrotum were.

19. [143]

    The massage lasted for 20 to 30 minutes and there was never anyone else in the room during these sessions.

20. [144]

    MR recalled that there was one occasion when there was a “vigorous moving of clothing” [73] whilst he had his eyes closed, which he believed was the sound of the appellant masturbating himself.

21. [145]

    MR attended upon the appellant on multiple occasions for hypnosis. The only touching that occurred was the massaging of the legs and upper thigh. MR stopped seeing the appellant for the sessions prior to finishing the Higher School Certificate in 1990.

22. [146]

    He gave evidence that he never told his parents about what occurred because he was “very unsure, uncertain about what was actually going…on”. [74] He held the appellant in high regard and questioned himself thinking “did that just happen to me?”, so he “put it behind” himself.

23. [147]

    MR attended upon the appellant again when he was about 20 years old for a tooth extraction. The first time he told anyone about what had happened with the appellant was when he provided a statement to police on about 23 March 2015. He made this statement after hearing about the appellant’s charges from family, friends, and media reports.

24. [148]

    MB was born in 1976. At some stage in the 1980s or 1982, MB first attended the appellant’s dental surgery when he was five or six years old.

25. [149]

    At this appointment, the appellant and MB’s mother arranged for MB to return a few weeks later for a meditation session after the appellant had told MB’s mother that MB was nervous and needed treatment.

26. [150]

    At the later appointment, MB recalled lying on his back on a mat in a room with a dental chair. He was undressed until he was only wearing his underwear. The appellant knelt beside him and massaged his body, upper thighs and stomach with two hands for about 30 minutes. MB recalled music playing in the background during the session. MB did not recall anybody else being at the surgery.

27. [151]

    MB gave evidence that he was collected by his mother. He did not tell his mother or anyone else at that time what had occurred.

28. [152]

    MB made a statement to police on 20 October 2014.

29. [153]

    CW, the older brother of OW, was born in 1972. He gave evidence that, in about 1981, the appellant extracted five teeth over a number of weeks and fitted a dental plate. All the dental work occurred in the dental surgery room and was accompanied with hypnotherapy by the appellant for relaxation. He thought these dental sessions were around 4:00pm or 5:00pm.

30. [154]

    CW also attended pure hypnotherapy sessions in 1981 or 1982 when he was eight or nine years old after the appellant suggested it to CW’s parents. These sessions occurred in a room further down the hall to the left, past the reception area at about 4:00pm.

31. [155]

    At the first session, CW lay on his back on the massage table or chair. He recalled a “monologue” [75] by the appellant about feelings of lightness in CW’s body and the appellant encouraging him to imagine a lack of gravity. The session lasted for approximately half an hour.

32. [156]

    He had at least four or five pure hypnotherapy sessions. He was not always lying on his back on the bed; he remembered lying on his front at other times. He did not remember any physical contact occurring during these sessions. He remembered lying on his front with no shirt on and his pants lowered an inch or two. Whilst he was in this state, he heard the appellant breathing quickly and loudly a short distance behind him; this happened on more than one occasion. He was lulled into a meditative hypnotic state for about 30 minutes during these sessions.

33. [157]

    In 2012, CW had a conversation with his brother OW regarding their dentist. In 2014, CW made a statement to police which he signed on 15 February 2015. Also, in 2014, CW was sent Facebook material linking to a media article about the appellant. He forwarded that material to OW. CW also had detailed conversations with OW regarding the reasons why OW was attending on the police.

Other evidence in the trial

1. [158]

   In addition to the evidence of the complainants and the tendency witnesses, the Crown called 27 witnesses. These witnesses included EW, the mother of JW and PW; the parents of ST; the mother of OW; the mother, father and brother of SF; the mother of MB; and, the wife and father of JC.

2. [159]

   ST’s parents gave evidence that ST had never mentioned anything untoward occurring at the dentist prior to their making statements to police in 2015 and 2016.

3. [160]

   MB’s mother said that at some point in 2014, she spoke to her son and as a result of this she made a statement to police. She had included in her statement the exact words that she could recall MB said to her which were, “I can remember going there and there was a mat on the floor…and I remember he was touching me on my legs and body like a massage.” [76]

4. [161]

   BH, the mother of OW, gave evidence that her son told her about 20 years later what had occurred at his first appointment with the appellant but he did not provide any details.

5. [162]

   In cross-examination, she confirmed that OW had not said anything to her about his initial visit to the appellant, apart from when OW said to her at some time after his first session that the appellant had stroked his back. She could not recall his exact words, but her impression was that his back was stroked or massaged. She did not agree that it was not a total surprise that OW did not go in for a second session, but instead ran off. She said it was “a total surprise”. [77]

6. [163]

   JF, the father of SF, said that his memory was not good at the time he was giving evidence. He never spoke to either of his sons about the appellant.

7. [164]

   DF, the mother of SF, gave evidence that she did not know anything about hypnotherapy when her sons were attending upon the appellant. She did not speak to either of her sons prior to making her statement to police in December 2014.

8. [165]

   PF, the brother of SF, said that his parents had arranged for him to see the appellant for hypnotherapy to help him settle down a bit, make him sleep better and make needles easier. He had about four sessions during which the appellant counted from one to 10 in order to get him to calm down and close his eyes, to “get you to go into a sort of hypnosis sort of thing”. [78] He closed his eyes. He recalled that as soon as the appellant touched his feet, he was “touchy, nervous”. [79] The massage went from his feet to below his knees, and then he rolled over and the appellant massaged his shoulders, trying to get him to relax. He could not recall being massaged in any other areas. At the end, the appellant counted from 10 to 1. PF said he did not feel as though he was hypnotised.

9. [166]

   PF had commenced seeing the appellant from the time he was about six or eight years old.

10. [167]

    WC, JC’s father gave evidence that his son boarded at a school in Armidale. In about 1986, the cap kept falling off one of JC’s top teeth and the school notified them that JC had been taken to a dentist.

11. [168]

    JC told his parents about the appellant in about 1987 or 1988 which coincided with the last payment to the appellant in WC’s cheque book. JC told them that the dentist had touched his private parts. JC’s mother immediately said, “You’re not going back”. [80] That was the extent of the conversation and the topic was never raised again.

12. [169]

    In 2014, WC heard something on the news about a dentist in Armidale. He made a statement to police on 25 February 2015. Prior to making his statement, JC had a conversation with him during which JC said that he had become aware that a charge had been laid and that he had been in contact with the police to say that “he’d had a problem there”.

13. [170]

    CC, the wife of JC, gave evidence that they had been married for 14 years. She started dating him in 1994. She said that in 1998 JC had tooth pain and he thought he had to go to a dentist. He told her that he was terrified of the idea of going to a dentist and didn’t want to go. At that time, JC did not provide any further details.

14. [171]

    Sometime later, over the course of their relationship, JC’s experience with dentists came up in the course of conversation on three or four times. This was normally when he needed to go to the dentist.

15. [172]

    JC told her that he had been touched by a dentist and it had made him feel very uncomfortable. He did not give any names but he told her that the dentist was based in Armidale and it occurred in a dental surgery.

16. [173]

    In 2015, JC was reading the news online and saw an article about an Armidale dentist being formally charged. JC told her that this was the dentist he had seen.

17. [174]

    As in Ground 2 of the appeal, the evidence of PW’s mother was asserted by the appellant to be inconsistent with PW’s testimony, her evidence will be summarised in more detail.

18. [175]

    EW was 81 years old at the time she gave evidence.

19. [176]

    EW became aware that JW needed to see a dentist when he was in primary school. She received a phone call from a dentist refusing to treat JW because of his very fearful behaviour. She was told by a psychologist about a dentist who practiced professional hypnosis in order to settle children down, so they enrolled both PW and JW with the appellant.

20. [177]

    She accompanied JW to the first appointment and asked the appellant if she could sit in on the appointment. The appellant said, “No it won’t work.” [81] EW trusted him, so she left the premises.

21. [178]

    From then on, JW and PW rode their bikes together to their appointments after school. She could not say for how long PW saw the appellant but it was “quite some time”. [82] She did not know how long JW saw the appellant but thought that he would not have continued sessions after PW left home, because they used to go together. PW left home in the week leading up to Sunday 13 March 1983.

22. [179]

    She trusted PW to accompany his brother because he was a champion road cyclist and she would not have wanted JW riding on his own.

23. [180]

    EW gave evidence that PW started at the … Catholic High School in 1979. EW and her husband (who died several years previously) attended a new parents’ evening at the beginning of the school year. She recalled meeting the school counsellor C at the event. She knew PW was counselled by C while he was at the school.

24. [181]

    At the beginning of Year 11, PW came home from school one day and said “Mum, will you get the suitcase down from the top of the cupboard in the laundry. I’m leaving home, and [C] says you may not.” [83]

25. [182]

    EW said that PW’s leaving the house had a very deep effect on JW. She did not know the date JW terminated the appointments with the appellant, but was certain that JW would not have gone to the appointments without PW.

26. [183]

    JW “flatly refused” to return to the appellant so EW arranged for him to see another dentist. [84]

27. [184]

    EW gave evidence of PW’s former wife much later on calling her to speak about PW. As a result of the conversation, EW flew to Sydney where she was met at the airport by PW’s former wife. At some point after she returned to Armidale, she saw JW. They were having coffee together and EW asked him whether he had been abused by C and the appellant, to which JW said “yes, that he was”. [85] PW never told her anything about being abused and she never asked him because “he has been very reserved about it, and I respect his privacy”. [86] JW later gave her further information about the appellant and C but did not tell her specifics about the abuse.

28. [185]

    In cross-examination, she said that she remembered that the arrangement was for PW and JW to ride their bikes together to the surgery.

29. [186]

    Other witnesses called by the Crown gave evidence of conversations with JW about the conduct of the appellant.

30. [187]

    JM, who had attended the … Catholic High School, with JW told the jury of a conversation she had with JW in Armidale in 1991. JW told JM that he had been abused over a number of years by a number of people including a counsellor and a dentist whom he did not name. He also said that there had been some issues later. He did not give her any specific details and they had never discussed the specifics other than hypnosis was involved.

31. [188]

    In cross-examination, she said that apart from the first evening during which JW told her what had happened to him, she had had numerous conversations with him over the years about it so that she was not able to identify when a particular conversation had occurred. The first time JW told her what happened, he said it occurred from eight years old until he was 15 or 16 years old. She recalled that he was eight years old because that was the year that she left Armidale. He mentioned to her once that PW had sexually abused him, but she did not recall him talk about hypnosis in relation to that abuse. She did not recall hypnosis being mentioned in relation to the counsellor; she recalled the counsellor pursuing and stalking JW around the school and that was what stuck in her mind more than anything about hypnosis.

32. [189]

    JM gave evidence of moving at the end of 1978 with her family to Mackay for four years. They returned to Armidale in about 1984 and JW was still living up the road.

33. [190]

    AW, a friend of JW’s since he was six and JW was seven, gave evidence of a conversation with JW at Mallacoota in August 2011. JW told him that “he had been abused by the local dentist several times and…after he told some people about his abuse, they referred him to the school counsellor who then in turn abused him as well”. [87] AW could see that this was a major disclosure for JW so said words to the effect of “I’m not going to pry but let me know if you want to tell me” anything else.

34. [191]

    TS formed a relationship with JW in about 2006 or 2008. About a month after they met, JW had a conversation with her in which he disclosed that his brother had sexually abused him in his childhood which he believed was caused by his brother being abused himself. His brother would often wake him up in the middle of the night sitting on his chest or trying to choke him. He did not go into the details of the sexual abuse by his brother. JW told her that two other people who abused him were C and the appellant. JW told her that he used to go to see the appellant for dentistry and part of his practice was to hypnotise. JW said that while he was meant to be hypnotised, he was abused by the appellant. The only detail she could remember him telling her was that the appellant would perform oral sex on him. The information came out over many conversations, not just one. He told her that the appellant abused him sexually when he was a child, but she did not know when. He told her that the appellant’s abuse took place in a darkened room, that the appellant would often leave the room and he believed he could hear other people talking, and felt as though he was being videotaped in that room. She had never heard of C or the appellant before JW told her their names.

35. [192]

    JW told TS that when PW was 15 years old, C had taken him away and taken custody of him. C told his parents that they were not fit parents. He told her C did the same to him when he was around the same age and C also abused him. She did not know the details of the abuse. It was very difficult for him to talk about and also difficult for her to hear. He told her he believed there was an interconnection between the people abusing him.

36. [193]

    SR, a friend of PW’s, said that in mid-1984 or in 1985 when he was 19 or 20 years old, PW told him that when he was a child or an early teenager, he had been sexually abused by the appellant. He told SR that he had been to Armidale police to complain about it either that day or recently and he had been dismissed by the police. PW was very upset by this. PW did not go into detail about what had happened to him, but intimated that he had been abused by other men, although he did not identify them. He told SR that the appellant was a dentist. PW was very upset and crying as he told SR about it.

37. [194]

    In cross-examination, SR said that he was not asked to think about this conversation until 18 August 2017. He was surprised when police contacted him. He did not take any notes at the time of the conversation and agreed he was relying on his memory when he made his statement to police.

38. [195]

    CH entered into a relationship with PW between 2003 and 2009. When they were living together, PW told her that he left home and that he went to a “boarding place” at the … Catholic High School. He told her that he had suffered some abuse. He did not go into any details but told her it involved C, the school counsellor. She did not know C’s first name. PW did not tell her much about the abuse and she did not ask. PW told her that he dressed up as a girl to deter the counsellor. The only time that PW mentioned a dentist was when he had to go to Armidale, which she thought was to attend court with regard to a dentist. She did not remember when this conversation took place.

39. [196]

    Brother Cantwell taught various subjects at the … Catholic High School in Armidale between 1979 and 1984. He first became aware of C in 1979 when he was “pretty certain” C was already a visiting counsellor at the school. [88]

40. [197]

    In 1983, Brother Cantwell became aware that PW was seeing C when C approached him about the possibility of PW living with the De La Salle brothers. C said PW had some difficulties particularly with his father and it would be good for PW to spend some time away from his family. As a result of the conversation, Brother Cantwell arranged for PW to have his own room at the Brother’s residence.

41. [198]

    Brother Cantwell’s evidence was that he thought PW saw C on a fairly regular basis in his office. He recalled going to C’s premises in town on about five or six occasions. Brother Cantwell would drive PW over on his lawnmower. PW did not mention anything about interactions with C whilst he was staying with the Brothers.

42. [199]

    Brother Cantwell noticed that PW “often seemed concerned about something, but found it difficult to talk about”. [89] He recalled one conversation with PW during which PW appeared sad, was hunched over and “unable to say what it was that was disturbing him”. [90]

43. [200]

    Brother Cantwell gave evidence that after leaving Armidale, he next saw PW in 1995. He did not recall PW mentioning C at this stage. They met again in 2013 in Brisbane during which PW disclosed that he was concerned about having been abused by C.

44. [201]

    In cross-examination, Brother Cantwell said what PW told him about C was “certainly in the context of abuse”. [91] He said PW had mentioned it in phone calls previously.

45. [202]

    Father O’Brien gave evidence that he remembered PW and his family. He did not recall an occasion on which Bishop Kennedy came to see him with PW. He agreed that he was aware of one particular priest about whom there were allegations whilst he was in Armidale. He had no recollection of Bishop Kennedy mentioning the appellant and C’s names at the same time he mentioned the Catholic priest. It was suggested to him that he was lying and he said, “Well, you’re wrong”. [92]

46. [203]

    He denied saying to PW “This is a very serious matter making a complaint against these three people”. He did not recall the conversation about which PW gave evidence. [93] He denied that at the time he was trying to cover up the allegation made by PW, and was trying to protect the church.

47. [204]

    In re-examination, he was taken to paragraph 13 of his police statement which read, “I cannot recall the situation at all. I just can’t remember” and “As I said, I steered clear of the W… family and maybe because of this, I have blocked this out”. [94] Father O’Brien said, “I said that, yes. If that had happened, I don’t know – unconsciously, it’s gone from my memory because of my contact with the W… family in the past”.

48. [205]

    Expert evidence in the Crown case included the evidence of Dr Vineetha Edirisooriya, a psychiatrist, who first saw JW as a patient on 16 August 2012. Her report of that consultation included:

49. [206]

    Dr Edirisooriya explained that pseudo-hallucinations were voices that JW heard inside his head but knew them to be his own imagination. Her working diagnosis of JW was that of severe depression with psychotic features. She also made a “differential diagnosis” of paranoid schizophrenia and schizoaffective disorder.

50. [207]

    Dr Edirisooriya had further interviews with JW, the last of which was on 7 January 2013. During that interview, Dr Edirisooriya considered that JW was feeling safe, she was unable to elicit any psychotic features and his insight remained good.

51. [208]

    The psychiatrist confirmed that JW had major depressive disorder, with PTSD and anxiety. It was a generalised anxiety and stress of starting the legal process against the perpetrators. JW seemed to have improved remarkably with a combination of pharmaceutical and psychological therapies.

52. [209]

    In her report of 16 August 2012, Dr Edirisooriya noted that JW was a 40 year old man, who reported having been sexually abused by different men from the ages of eight to 16 years.

53. [210]

    Margaret O’Brien, a psychologist, who had practiced hypnosis for about 40 years, gave evidence which included the commentary in her report “The closer the replication of the emotional internal states, and the external stimuli, the greater subsequent recall”. Ms O’Brien explained that meant if any emotional state is being stimulated combined with sensory perception such as the external stimulus of the hypnotist touching means there is a greater ability to recall the information. From this, she thought that based on the children’s (complainants’) statements, which are consistent with one another in terms of the dialogue used for hypnotic instruction, and physical contact by the appellant, as well as the diagrams of the surgery and rooms where the assaults occurred, demonstrate that the “memories of their traumatic events are clearly etched in their memories”.

54. [211]

    Ms O’Brien referred to the statements of JW and PW which set out memories of events in relation to hypnosis undertaken by C and the appellant. She suggested that due to the similarities in the statements alongside the drawing of locations, each corroborate each other’s experience.

55. [212]

    The appellant’s electronically recorded interview (ERISP) with police on 11 September 2014 (Exhibit 12) was played to the jury. During the interview which consisted of over four hundred questions, the appellant denied masturbating PW’s penis; denied masturbating himself; and denied deliberately touching PW’s genitals. He said that the events described by PW in 1982 with the appellant and C “Never ever happened”.

56. [213]

    The appellant said he did not know whether he had met C before. He denied ever using a watch or anything like that to help count when doing relaxation or hypnosis. He denied ever using lubricants during the relax therapy.

57. [214]

    The appellant denied fondling JW’s genitalia. He said he would not have used his fingertips to tickle JW’s penis and then a thumb and two fingers to masturbate his penis. He denied JW’s allegations of sexual assault.

58. [215]

    When asked whether he wanted to add anything further about the allegations made by PW and JW, the appellant maintained that the sexual allegations and the number of appointments did not occur.

59. [216]

    The evidence of Detective Senior Constable Skye Hardy, the officer in charge of the case, included her confirmation that the appellant had no criminal convictions.

A summary of the defence case

1. [217]

   The appellant denied all of the allegations against him. In his closing address, Mr Taylor, the appellant’s trial counsel, put to the jury that the complainants’ evidence was unreliable and could not be bolstered by the tendency evidence which in itself was unreliable. He made particular reference to the absence of contemporaneous complaints by any of the complainants and what were said to the inconsistencies in their evidence. He further referred to the lack of corroborative support for their evidence and other factors which supported his submission of unreliability.

A summary of the appellant’s evidence

1. [218]

   The appellant was 82 years old at the time of giving evidence. He had experienced difficulty hearing for five or six years. He was fitted with a hearing aid two years prior to giving evidence. He did not have a hearing aid throughout the ERISP and had had difficulty during the interview.

2. [219]

   He gave evidence that he had practised dentistry from 1961 until he retired in about 2000. He had no criminal convictions. He had driven a tourist bus in his retirement.

3. [220]

   When PW approached him, he did not know he was wearing a recording device. He told the truth when PW asked him questions. He told the truth to police throughout the ERISP.

4. [221]

   The appellant purchased 119 Barney Street in 1966 and sold it in about 1988 or 1989. His evidence about the property included that the rendered brick fence at the front never had a wire, wrought iron, or any gate. There was never a circular driveway at the front of the property or any driveway on the western side. He identified a driveway on the right hand side of the property, being Exhibit H.

5. [222]

   The appellant denied ever knowing C. C never attended his surgery nor did he attend the … Catholic High School at a time when C and a priest were in his company.

6. [223]

   He agreed that during the ERISP he described relax sessions that he performed including the massage that he would undertake on various patients. The massage and relax did not have anything to do with dental treatment. The purpose of the massage was to improve relaxation. The full body massage was not used in combination with dental treatment but was sometimes a “preliminary for treatment” if someone was very nervous and not cooperating with being still.

7. [224]

   The appellant gave evidence that he did not touch PW or JW sexually, but also did not recall either of them. He did not touch sexually any of the people who gave evidence.

8. [225]

   The appellant did not recall the name ST, any of the people who said things about ST, or any treatment that he may have provided to ST. He did not recognise SF. He had heard SF’s family name around Armidale but did not recall SF.

9. [226]

   The appellant denied using any lubricating oils, Sorbolene or any other sort of cream in his dental practice or relax massages. He did not have a rule that parents were not allowed in the room during a dental procedure and there was always a chair in the room to accommodate a parent. He denied excluding parents from the room when he was doing relax in the dental chair.

10. [227]

    In cross-examination, the appellant agreed that he did a hypnosis course but said the only time he specifically used hypnosis was for things such as stopping smoking. He denied targeting young boys or using hypnosis to do sexual things to them.

11. [228]

    He agreed that there was a room at the back of the Barney Street practice which he used to massage boys. He denied he made sure that nobody else was present. He agreed that most of the hypnosis sessions occurred after 5:00pm, outside of normal dentistry hours. He did not agree that all the staff would have gone home by that time.

12. [229]

    He agreed that he would see teenage boys in the back room and ask them to remove some of their clothing. He denied this was because he wanted to look at their bodies. He said he would massage with clothing on and then if skin contact improved it and if they agreed and were comfortable with it, then that was what they did.

13. [230]

    The appellant thought it was possible that his wife came back into the practice when he was doing the sessions at the back. He did not know for sure whether his own children were not at the surgery when he was conducting such sessions. His children were able to use the room with the piano in it or the waiting room while he was massaging boys in the back room. He agreed that the object of him seeing these patients was to relax them. He said that his children were aware that when he was doing these sessions, playing the piano was inappropriate.

14. [231]

    When cross-examined about the unrecorded conversation he had with PW during their first meeting in 2014, the appellant agreed PW asked if he remembered him but denied that at the time he indicated that he “sort of” did.

15. [232]

    As to the recorded conversation, the appellant said he did not know what PW wanted to speak to him about initially. He understood that PW wanted to ask him some questions about what happened in the backroom of the Barney Street surgery. He understood that the transcript (Exhibit 10) was not entirely accurate.

16. [233]

    When PW said to him “and then, um, then you abused me. Many times”, the appellant thought he may have said something abusive to PW.

17. [234]

    In relation to where PW locked his bike around the back, the appellant confirmed there was a downpipe on the corner of the building and did not deny that PW could have locked his bike to it.

18. [235]

    The appellant was not aware that he smirked at PW during the recorded conversation. In relation to PW’s question, “Why the smirk and the shrug?” the appellant said he did not remember what his body movements were and he “wouldn’t have sat there like a statue”. When PW said “You were physically masturbating me” he answered “Was I?” as a question because it was surprising. He thought that was a “normal reaction for a lot of people that way”. [95] He agreed he did not say there that he did not do it, but he thought he did say that numerous times during the conversation.

19. [236]

    In re-examination, the audio of Exhibit 10 was played from about the point on page eight of Exhibit 10 where the transcript noted the appellant say “Ah, I hope you didn’t interpret, ah, something wrong in what we were doing”. On the audio, the appellant heard himself say the word “no” very softly.

A summary of the evidence of the appellant’s family

1. [237]

   IS, one of the appellant’s daughters, gave evidence that after school, she and her siblings would frequently meet at the Barney Street, surgery after school. They usually entered through the back during business hours.

2. [238]

   IS said that she could be at the surgery on any given day, but at least one or two days a week during high school. They would not arrive at the surgery before 3:30pm because of school finishing and could remain at the surgery for dinner and get home at 7:00pm or later.

3. [239]

   She mostly practiced her violin at the Barney Street Surgery, but also the piano sometimes because there was one at the surgery. She would do homework from the backroom which had a large table. There was no arrangement where she was to call ahead of going to the surgery, instead she would just show up and go through the back door.

4. [240]

   IS knew that her father practiced relaxation techniques, which she thought was hypnosis. He had never hypnotised her but had taught her how to relax when she was studying for the High School Certificate. Neither massaging nor touching was involved.

5. [241]

   NS, a son of the appellant, was born in 1970. He gave evidence that there were no restrictions on him being able to go to the Barney Street surgery so he would go there after school, both primary and high school. There was no restriction going to the surgery at any time and where he could go inside. He would let his Dad or the dental nurse know that he had arrived.

6. [242]

   At the surgery he would kick a soccer ball or play tennis out the back, play the piano or other instruments or watch television. On Fridays they would have fish and chips there.

7. [243]

   He said that he just about never went through the front door. He did not have keys to the building and did not recall it ever being locked. There would always be someone on the premises after school when he arrived.

8. [244]

   NS gave evidence that he was aware in the late 1980’s that his father was involved in relaxation because his father did some relax session with him when he was in Year 12 and at university. It was telling himself to relax from his toes upwards. His father never touched or massaged him and his clothes were always on. His father never did hypnosis on him.

9. [245]

   LS, another son, was born in 1975. He described the surgery as a “hub in the town” where they would often be waiting for their mother or father after school before or after sporting activities. He said there were never any restrictions on him going to the surgery before or after school.

10. [246]

    He did not recall his father treating teenage boys in the surgery spare room. He was aware that his father practised hypnosis. He first became aware of this when he was eight or nine years old. His father practised relaxation on him more when he was a teenager to help him to relax. His father would talk to him in a calm voice and would not touch him around the waist or groin. His clothes were on.

11. [247]

    Another daughter, RS, who was born in 1972, gave evidence that she went to the surgery frequently after school. She and her siblings would usually meet at the surgery before their mother took them home, which was out of town. There was no restriction on her attending the surgery on particular days or times. She marked on Exhibit XX the room with a table which was the dining and waiting room in the surgery for herself and her siblings.

12. [248]

    She did not recall seeing any teenage boys in the surgery or seeing bicycles parked at the rear of the surgery. Her parents parked their vehicles at the back of the surgery.

13. [249]

    HS, the appellant’s wife, gave evidence that she started working at the … Catholic High School as a teacher in about 1976. The family lived out of town and she attended the surgery most afternoons until she retired at the end of 1983. Most afternoons she would pick up LS when he was in kinder and go straight to the surgery where her other children would meet them. She described herself as the “taxi driver”.

14. [250]

    HS said that she had never met C. She denied that she ever sent a child to see C because there was a procedure to follow which did not allow a student to be sent to the counsellor without letting either the year leader or pastoral teacher know. She denied that there was ever a note that had to be given to someone.

15. [251]

    She knew her husband was not a friend of C because he never knew him.

A summary of the expert evidence in the defence case

1. [252]

   Dr John Roberts, a psychiatrist, and Dr Amanda Barnier, a Professor of Cognitive Science, were called in the defence case.

2. [253]

   Dr Roberts’ evidence included his opinions that hypnotic procedures could impair memory and it was theoretically possible that JW and PW may have attributed their memories of sexual assault occasioned by C to the appellant due to the use of hypnotic suggestion.

3. [254]

   Dr Roberts agreed that he had been provided information with respect to JW being diagnosed with severe depression with psychotic features. He concluded from what he had seen that JW was very unwell and in sore need of psychiatric help. JW’s accounts of matters of fact could not be relied upon, not because of an intention to lie, but because it would be very difficult to assume that he was giving an accurate account of a matter of fact. Dr Roberts expressed the opinion that it would need to be established that JW’s evidence was “not the product of a delusional belief system as opposed to evidence arising from matters of fact”.

4. [255]

   Dr Roberts was asked to comment on JW’s statement of 28 to 30 October 2013 in which JW had referred to “dissociative memories”. He was unclear what JW meant by “dissociative memory” but explained that “[d]issociation arises from … a splitting of awareness”. [96] His further evidence on this topic included “if there’s an equating between what, for want of any better terms, are called dissociative memories and normal memory, the impact of one and the other would also give rise to confusion in regards to matter of fact – potentially give rise to confusion with regards to matter of fact.” [97]

5. [256]

   In reference to Ms O’Brien’s conclusions that the consistency between the complainants’ accounts and their diagrams of the surgery and rooms meant that the memories of the abuse were clearly etched on their memories, Dr Roberts countered that he did not consider, from a forensic psychiatric aspect, that such similarities could amount to supporting or negating allegations of sexual assault because their accounts could arise from factors other than the assaults. Dr Roberts raised the concern of potential communication between people which could impact upon each of their memories of what they believed.

6. [257]

   Dr Barnier’s evidence included the reference in her first report dated 10 July 2017 that JW and PW’s statements were from long ago and could be either entirely accurate, inaccurate, or a combination of both due to the recalling and reconstructing from the time of the events, and reliving or retelling during the intervening years. It was impossible to determine the reliability of the individual memories in the absence of independent corroboration. She explained that ‘independent corroboration’ meant that this was either by another witness who co-experienced the event but this witness would also be influenced by the time that had elapsed and also physical corroboration such as CCTV or the like.

7. [258]

   Dr Barnier outlined in her report considerations for recalling childhood events which were especially relevant to the trial. She further explained that memories change, but by adding hypnosis, there was an additional complicating factor.

8. [259]

   Dr Barnier thought it was possible that C used suggestion to cause the brothers to believe that the assaults were perpetrated by the appellant, but she was not convinced that this was a plausible explanation. She thought it was possible that the brothers formed an association between the assault and being placed in a hypnotic state.

9. [260]

   When Dr Barnier wrote her first report, she had not received information with respect to the sexual assault by PW upon JW. In her report dated 25 July 2017, she concluded that whichever brother’s account of the assault was correct meant that the other brother’s account was incomplete. In Dr Barnier’s opinion, this raised questions of reliability about both PW and JW’s memory reports and were important to understanding their individual claims.

Ground 1 – The trial miscarried because of : a) The use made by the prosecutor of out of court statements made by the appellant to the complainant PW in 2014; and b) The directions (or absence of adequate directions) given by the trial judge on the subject

1. [261]

   The appellant submitted that the trial miscarried because of the use made by the trial Crown of the recorded conversation (Exhibit 10). [98] Particular emphasis was placed by the Crown in his closing address of that part of the conversation between PW and the appellant which is quoted at [67]-[72] above, which the appellant argued required further directions from the judge.

2. [262]

   The appellant referred to the conversation between the judge and the trial Crown before addresses during which the trial Crown said that he “was just going to say that that’s what he said” [99] but the trial Crown departed from that assurance by relying on the appellant’s response as being “the 13th reason” for finding the appellant guilty.

3. [263]

   The appellant accepted that his trial counsel neither addressed on this evidence nor sought any further direction about the use the jury could make of the recorded conversation. The result, the appellant argued, was that an important part of the Crown case was before the jury which was not the subject of any direction or guidance as to how the evidence could be used, which was not a straightforward matter.

4. [264]

   The appellant submitted that a miscarriage had occurred because it was essential that the jury be told how the evidence could have been used in respect to specific counts on the indictment or generally.

5. [265]

   The Crown referred to the trial Crown’s closing address in which he read out three portions of the recorded conversation with limited comment and submitted that the phrases, “Did I?” and “Was I?” were brought “to the attention of the jury” without more being said. Although the trial Crown returned to the recorded conversation as being one of the 17 reasons the jury would find the appellant guilty of the offences on the indictment, the Crown argued that these comments did not amount to a suggestion that the appellant had admitted his guilt in some way in the recorded conversation.

6. [266]

   The Crown contended that the two responses “Did I?” and “Was I?” were not capable of being used as admissions and the trial Crown did not seek to use them in that way. However, the appellant’s responses were relevant to the jury’s assessment of the appellant’s consistent denials of any wrongdoing.

7. [267]

   Furthermore, the Crown referred to the appellant’s reliance upon the recorded conversation as supporting the appellant’s consistency, particularly on the issue of the front fence of the surgery and in attacking PW’s credibility. A further submission was that the appellant’s trial counsel’s detailed closing address which did not specifically refer to the appellant’s response of “Did I?” was consistent with trial counsel forming the view that it was not necessary to do so as such responses did not forensically assist the Crown and to have specifically addressed on the response may have unnecessarily emphasised that evidence to the appellant’s detriment.

8. [268]

   The Crown pointed out that no complaint was made by the appellant’s trial counsel about the trial Crown’s closing address or the trial judge’s summing up. Another submission was that had the judge determined to give an Edwards direction in circumstances where such a direction was not requested, such a direction might “not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue.” [100] The Crown contended that a Zoneff direction was equally unnecessary and inappropriate. The Crown referred to neither trial counsel using the expression “admission” nor reference to “consciousness of guilt”.

9. [269]

   As to r 4 of the Criminal Appeal Rules (NSW), the Crown submitted that viewed objectively, a sound forensic reason not to seek any further direction existed which was the appellant’s trial counsel’s forensic strategy to rely on the consistent denials of any wrongdoing by the appellant and the trial Crown’s concession from the outset that the appellant denied any wrongdoing in the recorded conversation. The Crown contended that in those circumstances, to have sought any further direction arising out of the trial Crown’s limited reference to the recorded conversation (in the context of a lengthy closing address after a lengthy trial) was unnecessary and may have made it difficult for the jury to disregard consciousness of guilt as an issue.

10. [270]

    The Crown submitted that leave to rely upon this ground be refused.

11. [271]

    The trial Crown’s cross-examination of the appellant on the transcript of the recorded conversation included:

12. [272]

    The appellant was not asked whether his answers “Did I?” and “Was I?” amounted to admissions or lies.

13. [273]

    Before closing addresses, the trial judge questioned the trial Crown as to the use he intended to make of the recorded conversation. The following exchange took place:

14. [274]

    Neither the trial judge nor the appellant’s trial counsel took issue with the approach foreshadowed by the trial Crown.

15. [275]

    The trial Crown in his closing address read various parts of the recorded conversation, informing the jury that he was “bringing that to your attention because that’s what the [appellant] said when confronted by [PW]”. [105]

16. [276]

    Despite what had been foreshadowed by the trial Crown, nothing was said to the jury about what the appellant might have been expected to say.

17. [277]

    There would be no criticism of the trial Crown’s closing address if nothing further had been made of the recorded conversation. However, towards the end of his lengthy address, the trial Crown said:

18. [278]

    After detailing twelve reasons, the trial Crown said:

19. [279]

    The trial Crown did not go on to explain to the jury how it was that the appellant’s answers “Did I?” “Was I?” could be a reason for findings of guilt.

20. [280]

    Notwithstanding that the trial Crown’s address on the recorded conversation went beyond his exchange with the trial judge, neither her Honour nor the appellant’s trial counsel raised the issue.

21. [281]

    In his closing address, the appellant’s trial counsel did not specifically address the answers “Did I?” “Was I?” nor did he address the Crown’s submissions that those answers should be a reason for findings of guilt.

22. [282]

    His brief references to the recorded conversation included the rhetorical question “And hasn’t he been consistent right throughout, even through this covert listening device. Right throughout his record of interview…” [108]

23. [283]

    In her summing up to the jury, the trial judge did not mention the Crown’s argument that the appellant’s answers “Did I?” “Was I?” should be a reason for a finding of guilt. Her Honour succinctly referred to the recorded conversation in the following way:

24. [284]

    During the summing up, the trial judge directed the jury that the Crown was obliged to establish that the appellant’s version of events could not be reasonably true and the appellant was not required to prove that his account was true.

25. [285]

    The appellant’s trial counsel did not complain about her Honour’s summing up on this issue or seek any directions about the use the jury could make of the appellant’s answers in the recorded conversation.

26. [286]

    The appellant contends that the trial judge should have ascertained how the Crown sought to rely on the appellant’s answers as a reason for the finding of guilt. Did the Crown seek to rely on them as admissions? If so, was the admission one of general misconduct or of a particular charge? If the Crown did not seek to rely upon the answers as an admission, did the Crown rely on other matters such as a failure by the appellant to unequivocally deny the allegation as evidence of consciousness of guilt? The appellant argues that whatever way the Crown relied upon the answers required careful instructions from the trial judge.

27. [287]

    The appellant’s argument that a miscarriage of justice has occurred faces a number of obstacles. Firstly, no objection was made by the appellant’s trial counsel to anything that was said about the recorded conversation in the trial Crown’s closing address. Secondly, no direction was sought from the trial judge nor was any complaint made about her Honour’s summing up on the recorded conversation. Thirdly, the appellant does not submit that his trial counsel’s failure to raise the issue was due to inexperience or inadvertence. The Crown submits that the approach taken at trial was consistent with the appellant’s trial counsel forming the view that the appellant’s answers did not forensically assist the Crown case and to have specifically addressed on those matters or to have sought directions from the trial judge may have placed unnecessary emphasis on the evidence to the appellant’s detriment.

28. [288]

    As r 4 applies to this ground of appeal, it is convenient to refer to the principles to be applied which were summarised in Roos v R [110] by Gleeson JA at [71]-[74]:

29. [289]

    It has often been stated that r 4 is not a mere technicality and not a pathway to a new trial under issues that should have been raised at the first trial. [111] Moreover, the lack of objection or request for further directions may be cogent evidence that trial counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done. [112]

30. [290]

    Objectively viewed, it appears that the appellant’s trial counsel’s silence may be explained by a forensic choice that he made.

31. [291]

    In my view, this was a matter that should have been addressed as the trial Crown’s 17 reasons came at the end of a two day closing address and were intended to focus the jury’s attention on the Crown’s principal points for findings of guilt.

32. [292]

    The result was that the members of the jury retired to consider their verdicts without any instruction as to the use they could make of the appellant’s answers in the recorded conversation. Without direction or explanation as to how “Did I?” “Was I?” were asserted to be a reason for the appellant’s guilt, and without being reminded of the appellant’s explanation that these answers were expressions of surprise, there was a real risk that the jury might use the answers to reason that:

    1. (1)

       They were inconsistent with a denial of PW’s assertions; and

    2. (2)

       The appellant’s responses in some way amounted to an admission that PW’s assertions were true; or

    3. (3)

       The appellant’s responses were lies; or

    4. (4)

       Evidenced a consciousness of guilt.

33. [293]

    Nevertheless, courts have often held that accused persons are bound by the forensic choices made by their lawyers. [113]

34. [294]

    A forensic choice taken at trial may lead to a conclusion that a miscarriage of justice has not been demonstrated. As Gaudron J explained in TKWJ v The Queen: [114]

35. [295]

    Notwithstanding the significance of the forensic choices made at trial, the overriding obligation of a trial judge is to ensure a fair trial of an accused in the way explained by Barwick CJ in Pemble v The Queen (at 117-118): [115]

36. [296]

    In Stevens v The Queen, [116] the failure to direct on the defence of accident under s 23(1)(b) of the Criminal Code Act 1899 (QLD) when the accused was charged with murder was held by a majority (McHugh, Kirby and Callinan JJ, Gleeson CJ and Heydon J dissenting) to have occasioned a miscarriage of justice in the circumstances of that case. In referring to the duty of a trial judge, Kirby J said at [68]:

37. [297]

    In CTM v The Queen, [117] Kirby J emphasised that the Pemble obligation forms part of a trial judge’s duty of ensuring fairness to an accused at [112]:

38. [298]

    In James v The Queen, [118] the trial judge declined to leave an alternative verdict to the jury. The accused’s counsel was taken to have agreed with the trial judge’s assessment and the jury was not instructed on the availability of the alternative verdict. The accused appealed against his conviction, contending that the trial judge’s failure to instruct the jury on the availability of the alternative had occasioned a substantial miscarriage of justice. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said at [38]:

39. [299]

    More recently in DC v R, [119] the accused was charged with four counts of sexual assault. The thrust of the Crown Prosecutor’s closing address was that the jury would find support for the prosecution case in the accused’s answers in an ERISP which were the answers of a guilty man. The judge was aware that the Crown Prosecutor’s address gave rise to the possibility of consciousness of guilt reasoning. The judge enquired of the accused’s counsel whether any direction was sought on lies. The accused’s counsel asked the judge not to say anything. This Court (Bathurst CJ, Price and N Adams JJ) concluded that a direction on lies should have been given to the jury, notwithstanding the request from the accused’s counsel, and a miscarriage of justice had occurred. Leave was granted under r 4, the convictions were quashed and a new trial ordered. I said (Bathurst CJ and N Adams J agreeing) at [152]-[155]:

40. [300]

    The present trial was lengthy and difficult. The trial judge gave careful directions to the jury. However, in my respectful opinion, when the trial Crown’s closing address went beyond his discussion with the trial judge, her Honour should have asked the trial Crown, in the absence of the jury, to precisely identify the basis for the Crown’s assertion that the answers “Did I?” “Was I?” were a reason for a finding of guilt.

41. [301]

    In the event that her Honour was not satisfied with the trial Crown’s response, the Crown would be directed to expressly withdraw the assertion from the jury’s consideration. On the other hand, if the trial Crown’s explanation satisfied her Honour that the appellant’s answers were capable of evidencing admissions or lies or a consciousness of guilt, appropriate directions should have been tailored so that the jury was instructed in light of the facts of the case how the answers “Did I?” “Was I?” could be considered.

42. [302]

    This is not a trivial matter as the trial Crown’s assertion challenged the appellant’s credibility which was a central issue in the trial. Furthermore, the 17 reasons were not confined to the counts involving PW but were, in combination, put to the jury as reasons why they would find the appellant guilty of all of the offences on the indictment.

43. [303]

    I am satisfied that there has been a miscarriage of justice and the appellant has lost a real chance open to him of being acquitted on all counts on the indictment. Ground 1 of the appeal has been established.

Ground 2 – The verdicts are unreasonable, or cannot be supported, having regard to the evidence

1. [304]

   The argument in Ground 2 is confined to the verdicts that relate to PW and JW. The appellant submitted that there are inconsistencies, discrepancies, inadequacies, and other obscurities in the evidence in respect to counts 1 to 23 inclusive that a jury acting rationally ought to have entertained a reasonable doubt.

2. [305]

   As to PW’s evidence, the appellant placed emphasis on what was submitted to be the implausibility of PW’s evidence, his self-serving complaint evidence, and inconsistencies with JW and his mother (and other witnesses).

3. [306]

   A number of matters were identified by the appellant in support of the submission that PW’s evidence was implausible. These included PW’s failure to recollect the location of the surgery; the frequency of the abuse that was inflicted upon him during his numerous attendances at the surgery; the centrality of C to the appellant’s evidence; and, misconduct of Father O’Brien and senior police officers.

4. [307]

   The appellant referred to PW’s claim, inter alia, that:

   1. (1)

      He was assaulted by the appellant upwards of 100 times;

   2. (2)

      The assaults took place on a fortnightly basis for between 18 months and 2 years;

   3. (3)

      PW rode his bike to the surgery by himself on each occasion; and

   4. (4)

      PW was in Year 11 when these visits stopped.

5. [308]

   The appellant referred to PW’s initial identification of 101 Barney Street as the location of the appellant’s surgery, and correctly identified that address as being next to Mozeley’s (Tennis Centre) and across the road from the fire station. He correctly identified 117 Barney Street as the location of C’s day surgery in his first statement to police, and gave evidence at trial that he had not, at that time, made the connection that this was immediately next door to 119 Barney Street, which was the actual location of the appellant’s surgery. [120]

6. [309]

   The appellant submitted that it was difficult to accept that PW failed to remember the location of the surgery given the circumstances alleged. The appellant was critical of PW’s explanation that he did not recall the surgeries being side by side “because… the abuse that occurred to me, happened in separate premises at separate times with separate visits, and there was no direct connectivity between the two locations”. [121] The appellant argued this was particularly so in circumstances where PW alleged there was a close connection between C and the appellant, and that he was assaulted on one occasion by C and the appellant at the same time.

7. [310]

   As to the allegations of misconduct against the appellant, Father O’Brien, and senior police officers; the appellant referred to the frequency of PW’s attendance and abuse which increased the likelihood that the appellant’s staff or family may have confirmed PW’s presence at the surgery or even witnessed the abuse itself. However, it was submitted there was no evidence of that. Furthermore, there was no independent evidence of C’s relationship with the appellant nor their being in one another’s company. The appellant pointed out there was no independent evidence in support of the accusation that senior authority figures obstructed PW’s disclosures and Father O’Brien’s evidence constituted a denial of that contention.

8. [311]

   The appellant submitted that the complaint evidence to SR was limited in its probative value. PW complained to SR at some stage in 1984 to 1985. The complaint to SR was admitted for both a hearsay and credibility purpose. The appellant submitted that on SR’s account, the conversation may have offered limited and general support that ‘sexual abuse’ occurred yet it was incapable of strengthening specific counts on the indictment.

9. [312]

   A further submission was that PW’s evidence of complaints to GM, Bishop Kennedy, Father O’Brien, the police officers including Peter, a highway patrol officer, and the desk sergeant at Armidale Police Station were devoid of support and could be afforded little or no weight.

10. [313]

    The appellant referred to inconsistencies between the accounts of PW and JW regarding the instances of sexual abuse perpetrated by PW towards JW when JW was around seven or eight years old. These inconsistencies related to the duration, time, and frequency of the sexual abuse. The appellant submitted that this detracted from the credibility and reliability of PW and JW.

11. [314]

    PW gave evidence that the sexual interactions between him and JW occurred on only two occasions, separated by one or two weeks, and in the formal lounge room at the family home. He denied that he had used hypnosis on JW in the context of the sexual contact.

12. [315]

    JW gave evidence of “an older boy” who had abused him. He objected to answering questions that might identify the “older boy”, however, it was common ground that the “older boy” was PW. [122]

13. [316]

    JW gave evidence that the sexual interactions between him and the older boy occurred more than once, “perhaps [on] five” occasions, with hypnosis performed on him, and, over a 12-month period. JW also said that he had a “feeling” that JW and PW were acting out “what the dentist wanted [them] to do” although he did not discuss the dentist with the older boy. [123] JW accepted that his memory of the reference to the dentist may not be real.

14. [317]

    The appellant argued that these inconsistencies between PW and JW were not trivial.

15. [318]

    In written submissions, the appellant placed emphasis on the jury’s failure to convict on counts 6 to 8 which involved C. In oral argument, Mr Game SC informed this Court he did not wish to pursue those written submissions, but made the point about the hung verdicts that “one should be careful about giving too much weight to the [C] allegations because those are the very things upon which there is a hung verdict”. [124]

16. [319]

    The appellant submitted that unsatisfactory features of JW’s evidence undermined his credibility and reliability being: internal inconsistencies; his admitted problems with memory which extended to suffering from dissociation; and the paucity of complaint evidence. There were, the appellant contended, a number of instances where JW’s evidence materially differed from previously stated positions.

17. [320]

    These internal inconsistencies, the appellant submitted were:

    1. (1)

       JW accepted he had previously stated that, during the sexual abuse by PW, there was a conversation “that the dentist wanted us to do sexual things to each other”. In evidence, he conceded that such a conversation had never occurred; he only had a “feeling” that the dentist had somehow influenced PW’s offending. [125]

    2. (2)

       JW accepted he had previously stated that he was 8 years old when the “fog settled in and memory became hazy for eight years and beyond”. In evidence, he suggested the fog began when he was 9 years old. [126]

    3. (3)

       JW accepted that he had previously stated he had suffered “fog like experiences” his entire life. In evidence, JW said it was “not the truth” that those experiences affected his childhood. [127]

    4. (4)

       JW was previously unable to describe the watch that was allegedly used by the appellant in the process of hypnosis. However, in cross-examination, he described the watch, in not insignificant detail, as a “silver banded watch with a metallic face and a metallic linked band”. [128]

    5. (5)

       At the committal hearing, JW accepted that he may have been “partially hypnotised” during the early stages of his attendance upon the appellant. [129] However, in the trial, he gave evidence that the hypnosis did not take effect until 11 or 12 weeks. [130]

18. [321]

    The appellant contended that these variations in JW’s evidence were neither inconsequential nor were they related to immaterial topics.

19. [322]

    The appellant contended that notwithstanding the jury’s advantage in observing JW as a witness, the cumulative effect of both his admitted problems with memory and dissociation materially detracted from the reliability of his evidence. The appellant submitted that the frequency of JW’s attention and abuse, without detection, was implausible.

20. [323]

    The appellant referred to JW’s acceptance that he had general problems with memory and disassociation. Particular reference was made to his evidence in cross-examination that: [131]

    1. (1)

       He had struggled with memory his entire life.

    2. (2)

       There were periods where he had lost his memory.

    3. (3)

       He had suffered “blackouts” which were described as periods where he found it difficult to comprehend or understand what had happened in a preceding period of time.

    4. (4)

       He had particularly struggled with memory issues between the ages of eight years old and 16 years old.

    5. (5)

       He had experienced periods of “vaguing out” or “dissociation” [132] where he was not aware of his surroundings or “what was going on”. Those periods of disassociation may have been accompanied with uncertainty about whether his experiences were reflective of reality. [133]

    6. (6)

       His concession that in his submission to the Royal Commission, he stated that he suffered “a fog of consciousness” from the age of eight years but asserted in evidence that the fog of consciousness started when he was nine years old. [134]

21. [324]

    The appellant made further submissions concerning JW’s evidence that the fog of consciousness “began to take effect from the dentist”. [135] The appellant argued that this evidence was inconsistent with his out of court statements and PW’s evidence which was to the effect that he had sexually abused his brother before JW first attended upon the appellant in early 1981.

22. [325]

    The appellant placed emphasis on there being no evidence of contemporaneous complaint. Particular reference was made to JW’s failure to complain after the alleged commission of counts 9 and 10.

23. [326]

    In relation to these counts, the appellant argued that it is implausible that JW would have failed to disclose the abuse on the first two occasions that he had ever suffered abuse from any perpetrator. This was in the circumstances where JW was abused by the appellant and his father knocked on the door whilst it was occurring and was subsequently invited into a meeting with the appellant.

24. [327]

    The appellant submitted that the evidence of subsequent complaints was not compelling as it was devoid of details and expressed in general terms. The appellant’s contention was that the evidence of complaint should be afforded little weight.

25. [328]

    The appellant contended that the absence of corroboration between the accounts of PW and JW contributed to the implausibility, unreliability and credibility of their evidence. In particular, they were unable to corroborate on how they attended the surgery and on what days. There were also inconsistencies between their accounts and their mother’s account of how the two brothers would attend the surgery.

26. [329]

    The appellant asserted that there had likely been discussions between PW, JW, and their mother. For example, all three incorrectly identified “Precision Motors” as the location of the appellant’s dental surgery.

27. [330]

    The appellant referred to the trial judge’s instruction to the jury that in considering the specific types of touching alleged by PW and JW, they were not to have regard to the other tendency evidence relied upon by the Crown.

28. [331]

    The appellant submitted that it was relevant for the jury to consider that the allegations made by PW and JW differed significantly from those made by the other complainants and tendency witnesses.

29. [332]

    In the circumstances where the conduct alleged by PW and JW was significantly different and more serious than the conduct alleged by ST, SF, and the tendency witnesses, the appellant argued that the tendency evidence could not be used to make the evidence of PW and JW, that otherwise lacked cogency, sufficient to the level necessary to sustain the verdicts as it did nothing to enhance the reliability and credibility of their evidence.

30. [333]

    The appellant complained that the delay in complaint meant that the appellant’s surgery no longer existed and there was an absence of relevant business records. Furthermore, material witnesses had died and relevant witnesses had not been able to be located. The appellant pointed out that material witnesses had not been called including C, “Mel”, and JW’s psychologist, Maria Selvey.

31. [334]

    In making an “overall submission” on Ground 2, the appellant contended that there were significant and inexplicable inconsistencies between JW, PW, and their mother, EW. In oral submissions, Mr Game SC referred to EW’s evidence that her sons went to the appellant’s premises together on their bicycles. Another inconsistency that was referred to was PW’s evidence of his attendance at the surgery being on Tuesdays and then “dominantly” Thursdays. [136] Mr Game SC referred to there being some evidence that the appellant had a surgery at Walcha on Tuesdays, which would suggest that the alleged offending occurred on Thursdays. Mr Game SC pointed out that PW had said “dominantly Thursdays” but there was no evidence from either of the complainants that they were at the surgery together.

32. [335]

    The Crown submitted that the appellant had not established that the verdicts relating to PW or JW are unreasonable. The Crown contended that there was cogent evidence to prove the appellant’s guilt. The evidence of PW and JW, the Crown argued, was supported by the evidence of SF and ST (relied upon as tendency evidence to support the counts relating to PW and JW) and the evidence of the tendency witnesses. Furthermore, the evidence of PW and JW was said to be corroborated by the appellant’s evidence and answers he gave in the ERISP.

33. [336]

    The Crown emphasised that in contrast to the lengthy cross-examination of PW as to the detail of the sexual abuse by C, there was little cross-examination of PW as to the detail of the allegations of sexual abuse by the appellant. Furthermore, any inconsistencies or discrepancies in his account of the sexual abuse were not identified. PW’s evidence was both cogent and consistent. The Crown argued the cross-examination focussed on other matters, including (at length) the layout of the surgery and errors PW had allegedly made as to the location and physical description of the surgery. Whilst conceding some errors, PW said that “the cause and core of my memories are anchored in what actually happened to me, not what happened in the periphery”. [137]

34. [337]

    In oral submissions, the Crown referred to the conversation between JW and PW in 2012 to 2013 in regards to the location of the dental surgery. [138] The Crown submitted that this may have contributed to the initial error in identifying the location of the surgery, many years after the event in circumstances where the surgery had been demolished and the streetscape had markedly changed.

35. [338]

    Another submission made by the Crown was that PW’s failure to recall that C’s clinic was next door to the appellant’s surgery was credible. The Crown referred to PW’s evidence that “the experiences were completely separate in terms of the premises”, [139] that he had not been taken from one premise to the other, there was “no memory connectivity between the two… premises” and “[b]ecause the area had completely changed I was unsure as to which block it was in”. [140]

36. [339]

    The Crown referred to PW’s evidence in cross-examination when he was asked, in the context of sexual abuse by C, it was possible that his memory of sexual abuse by the appellant was false. The Crown placed emphasis on PW’s reply:

37. [340]

    The Crown submitted that PW’s evidence was cogent and the account was consistent with his truthful recollection as an adult of traumatic events that in fact occurred many years before.

38. [341]

    The Crown contended that the evidence of SR was highly supportive of the credibility of PW and, given the timing of the conversation, was also capable of being used as evidence of the truth of the matters asserted by PW.

39. [342]

    The Crown argued that Father O’Brien’s evidence should be rejected on the basis that SR’s evidence was “compelling” and that during his police statement, Father O’Brien stated “…I steered clear of the W… family and maybe because of this, I have blocked this out”. [142]

40. [343]

    In relation to the inconsistencies between PW and JW, the Crown highlighted the pre-trial rulings made by the trial judge pursuant to s 293 of the Criminal Procedure Act 1986 (NSW) which enforced that no questions were to be asked of JW or PW as to the detail of any sexual abuse, and that the objection by JW as to being required to identify his brother as the “older boy” be upheld consistent with the rulings of the magistrate under s 293. The Crown submitted that attacks on the reliability of the evidence of PW or JW by reference to discrepancies between their accounts on that topic must be considered in light of the fact that no evidence was permitted to be given by either of them as to the details of any such abuse.

41. [344]

    As to JW’s evidence, the Crown referred to the evidence of JM, TS, AW, and EW to whom JW had spoken about what had happened to him. The Crown argued that the evidence of TS provided significant support for the evidence of JW, noting in particular that JW told her that the appellant would perform oral sex on him consistent with his evidence at trial.

42. [345]

    A further submission was made about the extensive cross-examination of JW on the submission he had prepared to the Royal Commission that was attached to his police statement. The Crown referred to JW’s evidence that the submission contained “emotional statements” and pointed out that the section of the submission he was being cross-examined about “clearly sets out that these are feelings, including each heading, which talks about feelings, and yes, there are things that I have felt at that time”. [143]

43. [346]

    As to JW’s evidence of “out-of-body experiences”, the Crown argued that this testimony did not detract from the cogency of his evidence. The Crown noted that this evidence was introduced at his request after he asked to speak to the Crown. [144]

44. [347]

    After a short adjournment, JW explained that he “first became aware of out of body experience…in the oral phase, with the dentist, [the appellant]…while the abuse was taking place”. [145]

45. [348]

    The Crown further referred to JW’s evidence in cross-examination that he had suffered “from dissociation at various points in my life, generally brought about by traumas”. [146]

46. [349]

    The Crown noted that Dr Roberts gave evidence that dissociation may be associated with “out-of-body experiences” and that dissociation may be caused by extreme trauma and distress. [147]

47. [350]

    The Crown submitted that JW’s evidence was cogent and consistent with him truthfully recalling traumatic events as an adult that had in fact occurred many years before.

48. [351]

    As to the tendency evidence, the Crown referred to the trial judge’s “overly favourable” direction on the standard of proof, in view of the High Court’s comments subsequently made in The Queen v Bauer. [148]

49. [352]

    In replying to the appellant’s argument that the tendency evidence provided little support for the allegations made by PW and JW of masturbation, digital penetration and, in the case of JW only, fellatio, the Crown contended that the jury could reasonably have concluded that both PW and JW gave honest and accurate evidence of their experiences during massages up to and including the point where the appellant fondled the genitals of both. In response to the appellant’s contention that the more serious allegations against him by the brothers were either or a combination of confabulation, the Crown noted that it was not suggested to either PW or JW in cross-examination that the allegations made by each of them were the product of concoction. Furthermore, both PW and JW gave evidence that they had not discussed the details with each other of what happened to them.

50. [353]

    A further submission was that the appellant’s argument of the tendency evidence, disregarded the significance of the tendency evidence of PW and JW.

51. [354]

    To the extent that the appellant relied on asserted inconsistencies between the evidence of PW and JW and their mother EW, the Crown noted various respects in which EW’s evidence was incomplete. In oral submissions, the Crown referred to EW’s evidence as being “somewhat vague” which the Crown said was understandable because from her perspective there was no suspicion of wrongdoing. The Crown pointed out that EW’s evidence was fairly brief and given in general terms, which stood in stark detail to the very lengthy and detailed evidence of her sons.

52. [355]

    The Crown also referred to circumstantial evidence tending to support the evidence of PW and JW that there was a relationship between the appellant and C.

53. [356]

    The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen [149] as follows:

54. [357]

    In R v Baden-Clay, [150] the High Court (French CJ, Kiefel, Bell and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact:

55. [358]

    More recently in Pell v The Queen, [151] the High Court (Kiefel CJ, Bell, Gageler, Keane, Wettle, Gordon and Edelman JJ) made the following observations concerning the jury’s advantage in seeing and hearing witnesses at [38]-[39]:

56. [359]

    The High Court went on to say at [42]-[45]:

57. [360]

    In considering an unreasonable verdict ground, this Court is required to review the whole of the evidence which includes the appellant’s replies in the recorded conversation “Did I?” “Was I?”

58. [361]

    It is sufficient to state, as the case presently stands, no adverse inference can be drawn against the appellant for those answers which cannot be used as a reason for findings of guilt.

59. [362]

    During this lengthy trial, the jury had the opportunity of seeing and hearing many witnesses. PW and JW each gave evidence over seven days. The cross-examination of each of these complainants lasted four days. The appellant was in the witness box for five days including two days of cross-examination.

60. [363]

    In these circumstances, great weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the appellant in respect of counts 1 to 5, 9 to 12, 15, and 18 to 21.

61. [364]

    Notwithstanding the jury’s assessment that the evidence of PW and JW was honest and reliable, the question remains whether there are as the appellant contends “inconsistencies, discrepancies and inadequacies” upon an examination of the record, which leads to the conclusion that the jury, acting rationally ought to have entertained a reasonable doubt as to the appellant’s guilt.

62. [365]

    One of the appellant’s arguments of the implausibility of PW’s evidence is based on the frequency of PW’s assertions of sexual assault. PW gave evidence in cross-examination that C committed 100 assaults against him and the appellant committed about 100 assaults against him. The appellant’s contention was that not only was the frequency of the assaults implausible but it was unlikely with the frequency of that abuse and the attendances at the surgery that PW’s presence at the surgery was not confirmed by staff or the appellant’s family. Although there is some force in these arguments, upon my review of the whole of PW’s evidence, there were, as the Crown contends, no discrepancies or inconsistencies in PW’s evidence of the sexual assaults that founded the particular counts of the indictment.

63. [366]

    The principal thrust of the extensive cross-examination of PW by the appellant’s trial counsel was on issues such as the sexual abuse by C and the location and layout of the appellant’s surgery. Particular criticism in this appeal has been directed at PW’s initial identification of the surgery being at 101 Barney Street and not 119 Barney Street in November 2013 when he made a statement to police.

64. [367]

    At that time, he signed a photograph on which was written “101? Barney Street, Armidale…Former location of [the appellant’s] Dental Surgery”. This photograph became Exhibit B in the trial. He also sketched a floor plan of the appellant’s surgery which he provided to police above the words “101? Barney Street…[the appellant’s] Dental Surgery”. This sketch became Exhibit 4. The appellant submitted that it is difficult to accept that PW failed to remember the location of the surgery.

65. [368]

    In cross-examination, PW accepted that his estimation in 2013 of the surgery being at 101 Barney Street was incorrect. In further cross-examination, PW said that he had since had a “number of memory triggers”, including the death of a close childhood friend, which caused him to realise that the surgery could not be in the same block as Mozeley’s (Tennis Centre). It was during the reminiscences following the death of his childhood friend, who lived at 89 Barney Street, that PW said it became apparent to him that the appellant’s surgery was not on the same block. His evidence in chief included his confusion by the changes that occurred in the area when viewing Google maps when he had cited the surgery as being one block down from the actual site. Exhibit D shows the relative proximity between 101 and 119 Barney Street.

66. [369]

    Another aspect of the appellant’s argument of the implausibility of PW’s evidence was his correct identification of the location of C’s day surgery at 117 Barney Street in his first police statement whereas he had been unable to correctly identify the dental surgery. The appellant argued PW’s explanation that he did not recall the premises being side by side because the abuse had happened in separate premises at separate times and that there was no direct connectivity between the two premises should not be accepted.

67. [370]

    PW made a statement to police in 2013 about assaults that he alleged occurred between January 1981 and March 1984. It is evident that since the time of the alleged offences, there had been significant redevelopment in the Barney Street area. The surgery had been sold by the appellant in 1988 or 1989.

68. [371]

    In my view, it was open to the jury to accept PW’s evidence of initial confusion about the location of the dental surgery and his subsequent realisation that the surgery was not on the same block as the house in which his childhood friend had lived during his reminiscences following his friend’s death. Furthermore, it was open to the jury to accept PW’s explanation for his failure to recall that C’s clinic was next door to the surgery.

69. [372]

    The appellant raised the lack of evidence in support of PW’s evidence of the complaints he made to Bishop Kennedy, Father O’Brien and the police when he was in Year 11 and referred to Father O’Brien’s evidence which was submitted to be a denial of those complaints having been made.

70. [373]

    PW’s evidence of complaint when he was at school went beyond what was said to the Catholic clergy and police in Year 11. He said when he was in Year 12, he attempted to report the matter at Armidale police station.

71. [374]

    Although there are some differences in the recollections of PW and SR about their conversation in 1984 or 1985, it is not without significance that SR recalled PW telling him of his attempts to complain to police. In his evidence in chief, SR said:

72. [375]

    In cross-examination, SR described PW as being “quite overwhelmed by the police not taking him seriously”. [153]

73. [376]

    It was open to the jury to be unimpressed by the evidence of Father O’Brien. In paragraph 13 of his statement, he had referred to his lack of recollection, having “blocked this out” and “unconsciously, it’s gone from my memory because of my contact with the W… family in the past”. [154] Whilst he did not give his age in evidence, he told the jury that he had been ordained as a priest in 1961. Father O’Brien was an elderly person when he gave evidence. In my opinion, it was open to the jury to accept the evidence of the complaints that PW made of the appellant’s sexual abuse.

74. [377]

    I propose to deal with the inconsistency between the evidence of EW and her sons as to how the boys travelled to the surgery. EW testified that after JW’s first appointment, the boys would ride their bikes together after school to the surgery.

75. [378]

    EW said that she didn’t attend any appointments with PW. It was PW’s testimony that for the first appointment, his mother drove him to surgery and after that, he rode his bike. JW gave evidence of his mother and father dropping him off at the surgery and recalled travelling on his bike to other appointments. Neither PW nor JW were challenged in cross-examination on this issue. PW and JW were not asked by the appellant’s trial counsel whether they rode on their bikes together to the surgery. Furthermore, they were not cross-examined on whether they attended the appellant’s appointments either together or separately.

76. [379]

    EW was 81 years old at the time she gave her evidence. She had no concerns about her sons’ attendances at the surgery until she had a conversation with PW’s former wife. The members of the jury were entitled to reject her evidence and prefer the consistent testimony of her sons on this topic.

77. [380]

    The appellant’s submission that the evidence of PW and JW as to PW’s sexual abuse of JW is inconsistent is undoubtedly correct. The differences in their evidence on this topic include the number of occasions of sexual abuse, the timeline of that abuse, and the use of hypnosis. The ability of trial counsel to explore those differences was confined by the trial judge’s pre-trial judgment that “the specific type of abuse” could not be explored following argument concerning s 293 of the Criminal Procedure Act. Neither party contends that her Honour’s ruling was incorrect; however, PW’s evidence of what occurred in the bedroom he shared with JW was not put to JW in cross-examination.

78. [381]

    The impact that those differences had on the assessment of the honesty and reliability of the brothers’ testimony was a matter for the jury. Notwithstanding these difficulties their evidence on this topic had the capacity to support the evidence of sexual abuse by C and to reject the suggestion of collusion between them.

79. [382]

    One matter that the appellant raised in suggesting the likelihood of discussions between PW, JW, and EW was the incorrect identification by all three of the location of the dental surgery. On this topic, the brothers’ evidence differed. JW recalled a discussion in about 2012 and 2013 that he had a conversation with PW during which PW “pointed to the back of one of the buildings overlooking the tennis courts and … identified that building as the dental surgery”. [155] PW had no recollection of discussing with his brother the location of the surgery. [156] In further cross-examination, he said that he did not have a conversation with PW as to where the dentist was.

80. [383]

    It was a matter for the members of the jury as to what they made of this evidence. There is no other evidence that suggests the testimony of the brothers was the product of collusion. Indeed, one of the appellant’s contentions is that the absence of corroboration between the accounts of PW and JW contributes to the implausibility and unreliability of their evidence.

81. [384]

    Although I agree that the differences in the evidence of PW and JW are not trivial, I do not consider by themselves they are such that the jury, acting rationally, ought to have entertained a reasonable doubt.

82. [385]

    Turning to the arguments concerning tendency, the trial judge applied the criminal standard of proof to the evidence of the uncharged acts of the tendency witnesses as well as the complainants. Her Honour directed the jury before Bauer and faithfully followed what was considered to be the law in New South Wales that the correct standard of proof of tendency evidence in sexual offences was beyond reasonable doubt.

83. [386]

    On my reading of the record, SF, ST, and the tendency witnesses were impressive. It is notable that these men were prepared to give evidence about the appellant’s sexual misconduct that was occasioned to them more than 30 years beforehand.

84. [387]

    Putting aside for the moment JW’s evidence, I agree with the appellant’s submission that it was relevant for the jury to consider that the allegations of sexual misconduct by PW and JW differed from those made by SF, ST, and the tendency witnesses. However, the appellant’s grounds of appeal do not complain that the trial judge misdirected the jury on this issue.

85. [388]

    Although these witnesses did not give evidence of acts amounting to sexual intercourse, that does not mean that in considering individually their evidence, the jury could not find that the appellant had a tendency to have a sexual interest in young males and had a tendency to act on that state of mind by exploiting his position as a dentist for his own sexual purposes: to display a sexual interest in teenage boys and pre-teenage boys; to use hypnotherapy as “a tool” to engage in inappropriate touching; and, to indecently assault them.

86. [389]

    It was open to the jury to be satisfied that SF, ST, and each of the tendency witnesses gave honest and reliable evidence. Furthermore, when considering each charge separately (including the allegations by PW and JW of sexual intercourse), it was open to the jury to conclude that the evidence of SF, ST, and the tendency witnesses made it more likely that the appellant had committed the offences against PW and JW for which he stood trial.

87. [390]

    This evidence stood in stark contrast with the appellant’s testimony that he did not sexually assault any of the people who gave evidence and provides significant support for the jury’s verdicts.

88. [391]

    Another matter that was raised in written submissions but not put with much force in oral submissions by Mr Game SC was the jury’s failure to convict on counts 6 to 8. The jury was discharged on these counts as the jurors were unable to reach unanimous or majority verdicts.

89. [392]

    The extent to which a failure to reach a verdict may be relied upon to demonstrate that a jury’s verdict on another count is unreasonable has been the subject of differences of judicial opinion. [157]

90. [393]

    In Daaboul v R [158] , after an extensive review of the authorities on this issue, Bathurst CJ concluded at [248]:

91. [394]

    In the present case, counts 6 to 8 included the presence and participation of C. C was not called by the Crown. The appellant’s trial counsel in his closing address placed emphasis on the Crown’s failure to call C. The trial judge had instructed the jury that where there was no explanation for a witness not being called they could take “the fact that there was no evidence from that witness into account” in deciding “whether the Crown has proven its case”. [159] In my opinion, the absence of C’s testimony is a logical explanation of the jury’s inability to reach agreement on counts 6 to 8.

92. [395]

    The appellant raised internal inconsistencies in JW’s evidence [160] and his admitted problems with memory and disassociation, [161] which the appellant contended, materially detracted from the reliability of his evidence.

93. [396]

    There is no doubt that JW had been mentally unwell. Dr Edirisooriya made a “differential diagnosis” of paranoid schizophrenia and schizoaffective disorder when she first saw JW in August 2013. Dr Roberts expressed the opinion that JW was very unwell and it would need to be established that JW’s evidence was “not the product of a delusional belief system as opposed to evidence arising from matters of fact”. His evidence included his opinion that the impact of “dissociative memories” and “normal memories” could potentially give rise to “confusion in regard to matters of fact”. [162]

94. [397]

    In cross-examination, Dr Roberts accepted that a person “who’s subjected to the most severe trauma, torture and pain, and deprivation” can “undergo dissociation for a period of time”. [163]

95. [398]

    Notwithstanding these difficulties, there is significant support for the jury’s assessment of the honesty and reliability of JW’s evidence.

96. [399]

    Upon my review of the whole of JW’s evidence, there are no discrepancies or inconsistencies in JW’s evidence of the sexual assaults that founded the particular counts on the indictment. In submissions, the appellant made reference to JW’s evidence about the watch which the appellant contended JW was unable to describe until his cross-examination. [164]

97. [400]

    I am unable to agree with the appellant’s contention as JW in his evidence in chief said: [165]

98. [401]

    The appellant drew attention to JW’s written submission to the Royal Commission that “When [he] was eight years old the fog settled in and memory became hazy for eight years and beyond” [166] and his evidence that he no longer maintained that position. When given the opportunity by the trial judge to clarify his evidence. JW said:

99. [402]

    When following further cross-examination on the Royal Commission submission, JW gave the following evidence:

100. [403]

     In my view, it was open to the members of the jury to accept JW’s evidence as to the differences between his Royal Commission submission and his evidence before them.

101. [404]

     One of the appellant’s submissions was that it was implausible that JW did not make a contemporaneous complaint to his parents of the appellant’s abuse. In my opinion, it was open to the jury to accept JW’s evidence that he did not tell his parents about what the appellant had done to him out of fear.

102. [405]

     Putting aside for a moment JW’s evidence of his complaint to “Mel” when he was 16 years old as Mel was not called to give evidence, JW, AW and TS testified about conversations with JW which included abuse by the appellant. TS recalled JW telling her that the appellant would perform oral sex on him. I do not agree with the appellant’s contention that the disclosures offered minimal support to JW’s credibility as they were expressed generally. Furthermore, it was open to the jury, bearing in mind the trial judge’s direction about witnesses who had not been called by the Crown, to accept JW’s evidence of his complaint to “Mel”.

103. [406]

     As previously explained, [169] it was open to the jury to conclude that the evidence of SF, ST, and the tendency witnesses made it more likely that the appellant had committed the offences against PW and JW for which he stood trial.

104. [407]

     There were undoubtedly difficulties with the evidence of PW and JW. However, on the whole of the evidence, these difficulties were not such that they ought to have caused the jury, acting rationally, to entertain a doubt as to the appellant’s guilt of the counts on the indictment which concerned PW and JW.

105. [408]

     I would dismiss Ground 2 of the appeal.

Orders

1. [409]

   For these reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of Ground 1.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the convictions and sentence.

   4. (4)

      Order that there be a re-trial of the appellant.

   5. (5)

      Remit the matter for mention at the District Court at Sydney at 9:30am on 2 July 2021.

2. [410]

   IERACE J: I also agree with the judgment of Price J and the orders he proposes.