Greenaway v R

1. [1]

   MACFARLAN JA: Commencing on 17 June 2019 the applicant, who is now aged 84, was tried in the District Court before a judge and jury on an indictment charging him with 26 separate offences (and two alternative charges) committed against six complainants between 1964 and 1973.

2. [2]

   Some of the charges were of non-sexual physical assaults and others were of sexual assaults. The applicant was alleged to have committed them upon young female inmates whilst he was an officer in the NSW juvenile justice system.

3. [3]

   Twenty-two of the counts in the indictment (including the two in the alternative) charged offences against five complainants, referred to by the pseudonyms DC, RB, JB, KP and RF, incarcerated in the Parramatta Girls Training School between 1964 and 1967. The complainants were aged between 16 and 18 years at the time of the alleged offences. The applicant was then aged between 27 and 29 and was the relieving deputy superintendent at the school.

4. [4]

   The other six counts charged offences against a sixth complainant, referred to by the pseudonym MS, who was incarcerated between 1971 and 1973 at a different juvenile justice institution for girls, the Ormond School. At the time of the alleged offences she was aged between 12 and 15. The applicant was then aged between 33 and 35 and was the superintendent of the school.

5. [5]

   At the close of the Crown case the jury returned directed verdicts of not guilty on Counts 4, 5, 8 and 10 in the indictment. At the end of the 15 week trial, the jury returned verdicts of not guilty on six further counts (including two counts which had alternatives). These six verdicts included a not guilty verdict on Count 1 which was the only count alleging an offence against the complainant DC. After a number of days of further deliberation and after the trial judge informed them that they could do so, 11 jurors returned a majority verdict of guilty on each of the remaining 18 counts (including the two alternative counts).

6. [6]

   In summary, the counts on which the applicant was found guilty were as follows:

7. [7]

   The trial judge subsequently sentenced the applicant to an aggregate term of imprisonment of 20 years commencing on 30 September 2019, with a non-parole period of 10 years.

8. [8]

   At the trial, the Crown called each of the six complainants to give evidence, as well as a number of friends and acquaintances of the complainants, in addition to one family member. The Crown also called Dr Loretta de Plevitz, a psychologist who worked at the Parramatta School from 1964 to 1966. Her evidence is the subject of one of the grounds of appeal (Ground 5).

9. [9]

   The defence case was that none of the offences had occurred. The applicant gave evidence and called eight other persons as witnesses.

10. [10]

    The applicant seeks leave to appeal against his convictions on Grounds 1-5 set out below. He needs leave because those grounds do not raise questions of law alone (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)). In addition, he needs leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the successor to rule 4 of the Criminal Appeal Rules) to rely on Ground 3, as the point with which it is concerned was not taken at the trial. The Crown contends that the applicant requires such leave in respect of Ground 2 as well. The applicant also seeks leave to appeal against his sentence on the ground that the aggregate sentence of imprisonment that his Honour imposed is “excessive”.

11. [11]

    The applicant’s proposed grounds of appeal against his convictions are as follows:

    1. (1)

       The trial judge erred in admitting into the trial as tendency evidence the “uncharged acts” of a sexual nature alleged to have been committed by the applicant upon DC.

    2. (2)

       The trial judge erred in admitting into the trial as tendency evidence the “uncharged acts” of a sexual nature alleged to have been committed by the applicant upon RF.

    3. (3)

       The trial judge erred in the terms of the direction he gave to the jury as to the standard of proof that it was to apply to the uncharged acts before they could be used as tendency evidence.

    4. (4)

       The trial judge erred in admitting the evidence in relation to the counts concerning the Parramatta Girls Training School and the evidence in relation to the counts concerning the Ormond School as cross-admissible to each other for use as sexual tendency evidence.

    5. (5)

       The trial judge erred in excluding evidence proposed to be adduced by the defence from the Crown witness Dr de Plevitz.

The complainants’ evidence at trial

1. [12]

   In light of the nature of the applicant’s proposed grounds of appeal, it is necessary to set out the following summary of the complainants’ evidence in support of the counts upon which the applicant was convicted. The summary is taken from the Crown’s written submissions on appeal:

The tendency notice

1. [13]

   Section 97(1) of the Evidence Act 1995 (NSW) provides as follows:

2. [14]

   Section 101(2) of the Evidence Act relevantly provided at the material times that in a criminal proceeding “[t]endency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.

3. [15]

   Prior to the trial the Crown gave a Notice to the defence in accordance with s 97 of the Evidence Act that it relevantly contended that:

4. [16]

   The Notice identified as follows the tendencies sought to be proved:

5. [17]

   The Notice asserted that the sexual tendency evidence had the following common features:

6. [18]

   The Notice identified the evidence to be called to prove the tendencies by reference to listed police statements of the six complainants.

7. [19]

   During the trial, the trial judge ruled that the Crown was entitled to rely upon the evidence for tendency purposes in accordance with its Notice. It follows from the High Court decision in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] and subsequent decisions of this Court (see for example Vagg v R [2020] NSWCCA 134 at [45]; Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160 at [544]) that it is for the appellate court to determine for itself whether evidence is admissible for tendency purposes in accordance with ss 97 and 101 of the Evidence Act. As a result, the parties to the present application for leave to appeal accepted that it was unnecessary to give close attention to the reasons given by the trial judge for allowing evidence to be used in that way.

8. [20]

   To give effect to Bauer, the Court is required to apply the “correctness standard” of appellate review identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, rather than the standard identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (see Rogerson at [542]-[548]; Decision Restricted [2021] NSWCCA 201 at [17]). The correctness standard was described in Warren v Coombes at 552 as follows:

9. [21]

   The evidence given by the complainants at the trial substantially accorded with the description of it in the Tendency Notice and in his summing up the trial judge directed the jury that the evidence was available to be used by it in the manner described in the Notice.

DC’s evidence of uncharged acts

1. [22]

   During the trial, immediately prior to DC being called to give evidence, the trial judge ruled that the Crown could use the evidence described in [65] and [66] of DC’s police statement dated 13 August 2014 for tendency purposes in accordance with the Tendency Notice. In his written judgment, which was provided after DC had given her evidence, he ruled that [72] of that statement could also be so used. Those paragraphs of DC’s police statement were as follows:

2. [23]

   The “food storeroom incident” referred to at the commencement of [72] is a reference to an act of which DC gave evidence which gave rise to Count 1 on the indictment in respect of which the applicant was acquitted. The Crown’s summary of the nature of the Count 1 allegation is as follows:

3. [24]

   At the trial, DC gave evidence of the earlier uncharged acts (as described in [65] and [66] of her statement). As the Crown summarised it, her evidence was to the following effect:

4. [25]

   In cross-examination, DC said, consistently with her police statement, that “the first time” it happened, she “probably thought it was an accident to start off with, but it happened several times after that” so she later knew that it was not accidental.

Relevant legal principles

1. [26]

   Recent High Court authority establishes the following propositions in regard to the application of ss 97 and 101 of the Evidence Act (as to which see [13]-[14] above).

2. [27]

   First, the reliability or credibility of the evidence sought to be used for tendency purposes is not relevant in assessing “significant probative value” unless the evidence is “inherently incredible or fanciful or preposterous”, which is not alleged to be so in the present case (IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52]-[59]). The same approach is applicable to the determination for the purposes of s 101 of the Evidence Act of whether “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” (see Bauer at [81]-[82]; Rogerson at [544]-[546]).

3. [28]

   Secondly, the evidence has “significant probative value” if it makes “more likely, to a significant extent, the facts that make up the elements of the offence charged” (Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40] quoting R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125]). A qualification to this is that “it is not necessary that the disputed evidence has this effect by itself”, as its effect when taken with other evidence may be considered (ibid).

4. [29]

   Thirdly, as stated in Bauer at [58], there must be some feature which links the act the subject of the tendency evidence with that sought to be proved to establish an element of a charged offence:

5. [30]

   Fourthly, the Court must take the following two steps in determining the admissibility of evidence for tendency purposes (per McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [26]):

6. [31]

   Fifthly, “[g]enerally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value” (McPhillamy at [27]).

7. [32]

   Sixthly, in relation to the balancing exercise required by s 101(2), the term “prejudicial effect” with which that section is concerned conveys the “idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way” (Bauer at [73]). The majority of the High Court in Hughes outlined ways in which tendency evidence in a criminal trial may occasion such prejudice, including where the evidence may be given “disproportionate weight” by the jury, where the jury’s assessment may be “clouded by the jury’s emotional response” to the evidence, or where the evidence requires “an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years” (at [17]). The ameliorating effect of any directions that may be available should also be considered (see ABR (a pseudonym) v R [2020] NSWCCA 33 at [37]-[39]).

Consideration

1. [33]

   The applicant submitted that it was relevant to the Court’s consideration of whether DC’s evidence of uncharged acts had “significant probative value” for the purposes of s 97 that her evidence was uncorroborated and given “within a context in which the credibility of the whole of her testimony was in issue”. In respect of the latter, the applicant pointed to the jury’s acquittal of him on Count 1 which, so the applicant said, suggested that it was unconvinced of DC’s credibility. These submissions however cannot stand in the face of the decision in IMM (see [27] above) which authoritatively establishes (subject to a presently immaterial exception) that the tendency evidence under consideration must be taken at its highest, without regard to considerations of its reliability or credibility (see also Bauer at [69]).

2. [34]

   The applicant then submitted that the uncharged acts were not of “significant probative value” because they were “of a much less[er] order of criminality” than the relevant charged acts and that DC herself was not even sure whether the first act of the applicant that she described (see [22] and [25] above) had a sexual connotation. It is apparent however that the subsequent repetition of the act made it plain to DC that the first act was not an accident and involved a sexual element. This illustrates why DC’s evidence of the uncharged acts was of potential importance to the jury’s deliberations. As the Tendency Notice indicated, when taken with the other evidence, the evidence tended to demonstrate that the applicant had a sexual interest in the complainants and was prepared to act on it. That the earlier acts of which DC gave evidence were of lesser criminality than subsequent acts which the applicant was alleged to have committed did not deprive that evidence of significant probative value in proving the tendencies alleged.

3. [35]

   The applicant further noted that the uncharged acts of which DC gave evidence “were alleged to have been committed up to seven years earlier” than the acts in relation to MS. This raises a question which is addressed below in relation to Ground 4. For the reasons there stated, I do not consider that the passage of time or the existence of a gap in time between the acts alleged to have been committed at the Parramatta Girls Training School and those alleged to have been committed on another complainant at the Ormond School deprived evidence of the former of “significant probative value” in relation to the latter.

4. [36]

   I do not accept the applicant’s further submission that there were insufficient similarities between DC’s evidence of uncharged acts and the evidence of the acts the subject of the charges in the indictment to indicate that the former was of substantial probative value in proving the latter.

5. [37]

   As foreshadowed in the Tendency Notice (see [17] above), the sexual acts of which evidence was given had, in the main, the following common features:

6. [38]

   It is not determinative that the uncharged acts of which DC gave evidence did not have all of these features (for instance, those acts did not have the features identified in paras (ii) to (vii) except to the extent that they involved abuse of position and consequent implicit intimidation to preclude complaint). That the evidence related to the commission of sexual acts on a young female who was incarcerated in an institution in which the applicant had a position of authority was sufficient to render the evidence valuable evidence in support of the tendencies alleged in the Tendency Notice.

7. [39]

   Using the language of Bauer (see [29] above) the uncharged acts had sufficient features in common with, or that linked them to, the charged acts.

8. [40]

   In relation to the balancing exercise required by s 101, the applicant contended that by relying on DC’s evidence of “uncharged acts”, the Crown “was putting to the jury, through the very first witness called in a long trial, that the applicant was a serial ‘groper’, a loaded word that was used throughout the trial”. He submitted that the prejudicial effect of this evidence of DC was high and that it was almost impossible for the complainant to challenge it. He then submitted that the trial judge referred to the possible prejudicial effect of the evidence “in an unduly restrictive way” by confining the possibility of prejudice to “two broad categories”, being “first that there is a risk that the jury might have an emotional response to the uncharged acts, and second that there is a risk that the jury might substitute the uncharged acts for the charged acts or be unable to distinguish between them”. He submitted by reference to Hughes v The Queen for example at [17] that there are “several more ways” in which prejudice may occur including “by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years”.

9. [41]

   In response, the Crown submitted that the word “grope” was a word first used by DC in her evidence and that it was not introduced by the Crown prosecutor. I accept its submission that the word is commonly understood in the community and that it was used in a not inaccurate and not inappropriate way to describe the conduct of which DC gave evidence. Its use was not intemperate or inflammatory.

10. [42]

    There was in my view no unfair prejudice that flowed from DC’s evidence of uncharged acts. Any prejudice to the applicant in this context was simply that which flows from evidence which is contrary to the other party’s case and was not therefore “prejudicial” in the sense that that term is used in s 101 (see [32] above).

11. [43]

    The applicant further submitted that it was “virtually impossible” to test DC’s evidence of uncharged acts but this was contradicted by what occurred at the trial. There was substantial cross-examination of DC concerning the evidence and the cross-examiner put to her that she was lying and had manufactured her evidence.

12. [44]

    For these reasons, Ground 1 should be rejected.

RF’s evidence of uncharged acts

1. [45]

   At the trial, RF gave evidence that the applicant had assaulted her on at least 12 occasions. She said that she had been penetrated digitally in her vagina and anus and that this had occurred when she and the applicant were alone. She gave detailed evidence of the first of these assaults, which she said had occurred in a waiting room at the school. Separately, she gave evidence of the applicant physically assaulting her on two occasions (Counts 19 and 20) and sexually assaulting her on two other occasions (Counts 21 and 22).

2. [46]

   The Crown’s Tendency Notice referred, so far as uncharged acts were concerned, to a statement of RF of 23 March 2016. This referred in turn to the sexual assaults in very general terms, using the expressions “vague memories” and “vague memory”. On 16 July 2019, which was the 23rd day of the trial, the Crown served a supplementary statement of RF containing the following more specific assertions:

Consideration of Ground 2

1. [47]

   The applicant’s submissions in support of this ground of appeal relate, in the main, to the lateness of service of the statement of 16 July 2019.

2. [48]

   The applicant first submitted that there had been a breach of the requirement of s 97(1)(a) of the Evidence Act to give “reasonable notice” of a proposal to use evidence for a tendency purpose.

3. [49]

   The material contained in the statement of 16 July 2019 went significantly beyond that contained in the earlier statement which was referred to in the Tendency Notice of 21 May 2019, if for no other reason than that the later statement (and RF’s evidence at the trial) professed a firmer recollection than the “vague memories” referred to in the earlier statement. It could not therefore be said that the Tendency Notice itself gave notice of the Crown’s intent to call the evidence. The amplified evidence of uncharged acts given by the 16 July 2019 statement did not however appear to require or justify the defence making further enquiries to enable it to meet the evidence. The lateness of its notification would not therefore appear to have prejudiced the defence. This contrasted with additional complaint evidence contained in the statement that the Crown foreshadowed leading which after objection it indicated it would not press.

4. [50]

   Certainly, the defence made generalised complaints about late service and complained that the material in it appeared inconsistent with the earlier references to “vague memories” only. The defence did not however take any specific objection that the “reasonable notice” requirement of s 97 was not satisfied in the case of the additional statement.

5. [51]

   As a result, in allowing RF’s evidence to be used for tendency purposes, the trial judge did not address any such specific complaint. If he had had to, and had concluded that reasonable notice had not been given, he would have had to consider whether to exercise his discretion under s 100 of the Evidence Act to dispense with the requirement (see also s 97(2)(a); R v AC [2018] NSWCCA 130). There is every reason to think that his Honour would, in his discretion, have decided to do that, bearing in mind that the defence’s principal concern with the statement was its generality, in referring in an unspecific way to numerous instances of sexual assault, and its firmness of its contents being inconsistent with the earlier described “vague memories”. Neither of these matters arose out of the late service of the statement and may have justified a refusal to dispense with the requirement of notice.

6. [52]

   The difficulty for the applicant in these circumstances is that, as the objection was not taken at trial, rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (formerly rule 4 of the Criminal Appeal Rules) applies. The circumstances I have described above do not suggest the applicant has suffered any injustice which would necessitate leave to raise the point for the first time on appeal being granted (see Hamilton v R [2020] NSWCCA 80 at [52] and Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [72]). Accordingly that leave should be refused.

7. [53]

   On appeal the applicant also alleged breaches of the pre-trial disclosure obligation in s 142 of the Criminal Procedure Act 1986 (NSW) (and said that this warranted sanction under s 146 of that Act) and of prosecutorial obligations of disclosure. Neither contention should be accepted. As to the former, the statement was served as soon as it was obtained by the Crown and as to the latter there does not appear to have been any information in the Crown’s possession which required disclosure before it occurred. In particular, there is no evidence to suggest that the Crown obtained the additional information from RF before about the date the statement was served.

8. [54]

   The applicant also asserted on appeal that RF’s evidence of uncharged acts did not meet the requirement under s 101(2) of the Evidence Act that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” because the evidence was too general to be able to be tested in cross-examination. However, as the Crown pointed out, such generalised evidence is commonly admitted as uncharged tendency evidence. If the evidence were more specific it would ordinarily form the basis of charges. The arguable inconsistency between RF’s evidence in chief and her description in her police statement of her “vague memories” was, as would be expected, the subject of vigorous cross-examination during which RF’s reliability and credibility were challenged. The cross-examination that occurred thus did not support the applicant’s contention on appeal that it was not possible to test RF’s evidence.

9. [55]

   RF’s more detailed evidence of uncharged acts in her 16 July 2019 statement clearly had significant probative value and the applicant does not, at least not expressly, assert the contrary. As the applicant was unable to identify any unfair prejudice to him, other than that the subject of the arguments with which I have dealt, he has not made good his challenge to the admission of the evidence.

10. [56]

    Although it is not embraced by the terms of this ground of appeal, the applicant submitted in this context that the trial judge committed a “significant error” in not giving the jury at the time of admission of RF’s evidence of uncharged acts (and also DC’s evidence of uncharged acts) a specific direction as to the manner in which it was entitled to use the evidence. The applicant did not cite any authority that requires a direction to be given at that time. The time at which directions should be given is very much dependent on the circumstances of the particular case (see Long (a pseudonym) v R [2021] NSWCCA 212 at [6]-[8] and [71]-[75]; compare Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80]). Moreover, defence counsel at the trial did not seek that a direction be given when the relevant evidence was adduced. In these circumstances, no conclusion of error can be arrived at and in any event rule 4.15 of the Supreme Court (Criminal Appeal) Rules precludes the applicant raising the argument without leave, which should not be granted.

11. [57]

    For these reasons, Ground 2 should be rejected.

GROUND 3: THE TRIAL JUDGE ERRED IN THE TERMS OF THE DIRECTION HE GAVE TO THE JURY AS TO THE STANDARD OF PROOF THAT IT WAS TO APPLY TO THE UNCHARGED ACTS BEFORE THEY COULD BE USED AS TENDENCY EVIDENCE

1. [58]

   In the course of his summing up to the jury, the trial judge referred to the evidence called by the Crown of uncharged acts and stated that for the jury to take them into account for tendency purposes the Crown did not have to establish beyond reasonable doubt that those acts occurred. His Honour however stated that in determining whether it was satisfied that the acts occurred, the jury should take into account the gravity of the allegations.

2. [59]

   The applicant acknowledged that the High Court decision in Bauer at [86] constituted a significant hurdle for him to overcome in making good this ground of appeal. Relevantly, the High Court said in Bauer at [86]:

3. [60]

   The applicant sought to sidestep this conclusion in a number of ways.

4. [61]

   First, he contended that Bauer was only concerned with single complainant cases and that in single complainant cases:

5. [62]

   He submitted that the “same logic does not apply to multi-complainant cases” but provides no sensible reason for that being so. As I see it, the logic is relevantly the same in that the jury must be satisfied beyond reasonable doubt of the elements of the charge but do not have to be so satisfied in respect of each, or indeed any, piece of evidence that supports such a satisfaction, unless, as stated in Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56, a fact which is not an element of an offence is nevertheless an “indispensable link in a chain of reasoning towards an inference of guilt” (see now the subsequently enacted s 161A of the Criminal Procedure Act).

6. [63]

   Secondly, the applicant submitted that in the present trial the Crown did in fact use the evidence of uncharged acts as indispensable links in a chain of reasoning leading to proof of the offences charged. He was not however able to identify any aspect of the record of the trial that supported that submission. On the contrary, it appears that the Crown sought to use the evidence as supportive of but not essential to its case.

7. [64]

   Thirdly, the applicant relied on a sentence in the judgment of Gleeson CJ in HML v The Queen (2008) 235 CLR 334 at [32]; [2008] HCA 16 as follows:

8. [65]

   Gleeson CJ however dissented on that point and arguably was in any event simply rejecting the submission that the jury needed to be directed that the uncharged acts needed to be proved beyond reasonable doubt (see Bauer at [86]). HML was a decision concerned with the common law and not with the provisions of the Evidence Act and cannot be treated as higher authority (particularly when it is a dissenting opinion that is relied upon) than the much more recent unanimous decision of the High Court in Bauer which contains no suggestion that it is inappropriate for a trial judge to give separate directions about the standard of proof of uncharged acts.

9. [66]

   Fourthly, the applicant submits that the trial judge was unjustified in directing the jury to take into account “the gravity” of the allegations when considering the uncharged acts. This statement, which reflects the approach in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, was not inappropriate and in any event favoured the applicant by, if anything, imposing a higher standard than necessary.

10. [67]

    Moreover, in relation to this last point and to the ground generally, the applicant’s arguments are in conflict with rule 4.15 of the Supreme Court (Criminal Appeal) Rules because the point (and the sub-points he makes) were not taken at the trial and he has demonstrated no reason why leave to raise any of them for the first time on appeal should be granted. This ground accordingly fails for want of a grant of leave under rule 4.15 but would in any event have failed on its merits.

GROUND 4: THE TRIAL JUDGE ERRED IN ADMITTING THE EVIDENCE IN RELATION TO THE COUNTS CONCERNING THE PARRAMATTA GIRLS TRAINING SCHOOL AND THE EVIDENCE IN RELATION TO THE COUNTS CONCERNING THE ORMOND SCHOOL AS CROSS-ADMISSIBLE TO EACH OTHER FOR USE AS SEXUAL TENDENCY EVIDENCE

1. [68]

   In support of this ground the applicant submitted that the uncharged and charged acts concerning the five complainants who were incarcerated at the Parramatta School did not have sufficient features in common, or sufficient “linkage”, with the acts alleged in respect of the single complainant (MS) who was incarcerated at the Ormond School to render the evidence of the two groups cross-admissible.

2. [69]

   The applicant’s principal argument was that any sexual tendencies evidenced by the alleged acts at the Parramatta School could not, because of the gap in time between the two groups of acts, be inferred to have continued to be in existence when the acts concerning MS allegedly occurred at the Ormond School, and that this deprived them of significant probative value.

3. [70]

   The gap in question was between 1967 when the last alleged act occurred at the Parramatta School and 1971 when the first alleged act occurred at the Ormond School. During that period the applicant was employed at three juvenile justice institutions but, unlike the Parramatta and Ormond Schools, they had only young male inmates.

4. [71]

   The applicant relied in particular on McPhillamy v The Queen (see [30] and [31] above). In that case the appellant appealed against his convictions of sexual offences committed against an altar boy who had been under his supervision after following him into a public toilet and molesting him. The Crown relied at the trial on tendency evidence given by two witnesses who had been boarders at a school where the appellant had been an assistant house master. They gave evidence that 10 years prior to the time when the charged acts allegedly occurred the appellant had committed sexual acts on them when they had gone to his bedroom to be comforted for homesickness. The High Court found that the evidence was not admissible for tendency purposes, the plurality stating:

5. [72]

   As described above, in McPhillamy the two groups of acts were committed in very different circumstances from each other. In the present case however the relevant acts shared the important characteristic that they were all committed in state-run institutions on young girls incarcerated in them by the applicant who was in a position of authority.

6. [73]

   There is a superficial analogy between the present case and McPhillamy in relation to a factor that the High Court treated as tending against the admissibility of the tendency evidence, namely, that in McPhillamy the boarding school acts were committed in private whereas the charged acts, although not apparently committed in the presence of anyone else, were committed in a public toilet. In the present case the earliest acts relied on (concerning DC) were committed in the presence of other inmates whereas later ones, including those at the Ormond School, were committed in private. When however the evidence at the present trial is considered as a whole (which is permissible – see [28] above) the nature of the acts of which DC gave evidence does not tend against cross-admissibility. Rather, the picture presented is one of a progression of acts from fleeting groping of DC in the presence of other inmates to more serious sexual misconduct with the other complainants in private, including MS at the Ormond School. Importantly, the evidence points to a continuing sexual interest of the applicant in young female inmates under his supervision and a tendency to act on that interest by committing progressively more serious conduct.

7. [74]

   Unlike in McPhillamy, here the character of the applicant’s supervisory role was the same throughout (albeit at different schools) and the nature of the vulnerability of the young people was the same. Also unlike in McPhillamy, the approximate 4 year gap in time between the acts the subject of the tendency evidence and the charged acts was explicable by the absence of opportunity during the gap for the applicant to abuse young female inmates, he only having responsibility for male inmates during that period. In contrast, in McPhillamy the 10 year gap was unexplained and was therefore consistent with a diminution or disappearance of the tendencies during that time, rendering the evidence of the earlier acts of limited, if any, significance in determining whether the appellant had the relevant tendencies at the later time.

8. [75]

   The applicant also pointed to the difference in ages between the complainants allegedly assaulted at the Parramatta School (aged 16 to 18 years) and MS who was allegedly assaulted at the Ormond School (aged 12 to 15 years). As well, the applicant pointed out that the difference between his age and the complainants at the Parramatta School was much less than that between himself and MS, both because of the later time at which the MS assaults allegedly occurred and because MS was younger than the other complainants at the time of the respective assaults on them. These are not however in my view differences of any present significance. In particular, they do not detract from the proposition that the sexual assaults of which evidence was given pointed to the existence of the tendencies identified in the Tendency Notice (see [16] above). The position might have been different if one group of complainants had been infants and the other teenagers but all of the complainants in this case were teenagers or on the threshold of teenage years.

9. [76]

   For the reasons given above, there were sufficient similarities between all of the sexual acts (both charged and uncharged) of which evidence was given for them to have “significant probative value” in proving the tendencies alleged (see s 97 of the Evidence Act), including as between the acts alleged to have been committed at the Parramatta School and those alleged to have been committed at the Ormond School.

GROUND 5: THE TRIAL JUDGE ERRED IN EXCLUDING EVIDENCE PROPOSED TO BE ADDUCED BY THE DEFENCE FROM THE CROWN WITNESS DR DE PLEVITZ

1. [77]

   This ground relates to an advance ruling given by the trial judge pursuant to s 192A of the Evidence Act that certain evidence proposed by the defence to be elicited in the cross-examination of a Crown witness, Dr Loretta de Plevitz, was inadmissible. Dr de Plevitz was in 1964 a trainee psychologist and after that a qualified psychologist. She worked at the Parramatta School for about two and a half years until April 1966 but only for two days a week.

2. [78]

   The evidence that the defence proposed to elicit was to the following effect, as stated in Dr de Plevitz’s statement dated 22 April 2015 (although the first sentence of para [29] was not to be objected to):

3. [79]

   The Crown also objected to the tender of documentation attached to the statement which identified the girls who made the complaint (none of whom was a complainant in the present trial) and identified the alleged perpetrator (Deputy Superintendent Mr Guilford; not the applicant).

4. [80]

   The Crown also objected to the defence eliciting from Dr de Plevitz the final sentence of para [8] of what was contained as follows in her statement of 30 July 2019:

5. [81]

   The applicant submitted at trial and on appeal that this evidence would have been relevant to the credibility of the complainants insofar as they testified as to their reasons for their reluctance to complain at the time about the alleged sexual assaults on them and that:

6. [82]

   In response on appeal the Crown submitted that its case at trial did not include any suggestion that there was “a culture of impunity within the PGTS such that the applicant would have expected to ‘get with away with’ conduct of the type alleged regardless of complaint …”. As the applicant did not draw the Court’s attention to any material to suggest otherwise, this submission should be accepted.

7. [83]

   It should also be accepted, as the Crown contended, that the proposed evidence did not satisfy the test for relevance stated in s 55 of the Evidence Act: relevant evidence is evidence “that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. The proposed evidence was not relevant because the fact that other complainants might have complained about other assaults (being physical rather than sexual assaults; and perpetrated by someone other than the applicant) to Dr de Plevitz who acted on them does not in any way contradict the complainants’ evidence that they were too afraid to complain, in circumstances where there was no evidence that any of the complainants knew the inmates who had complained, knew that they had complained or that they were aware that Dr de Plevitz had taken some action. Moreover, as the Crown submitted, that “Dr de Plevitz took action when a complaint was made to her does not logically or rationally affect the probability that other officers [or attending professionals] would have acted in a similar way” (Dr de Plevitz gave evidence that she was at the time in a team of six people working in the “psychology section” at the school). Further reducing the possibility of the proposed evidence having any relevance was first that only one of the complainants (DC) was at the Parramatta School when the complaint was made to Dr de Plevitz and she made her report and secondly that there was no evidence that DC had any contact with Dr de Plevitz.

8. [84]

   In these circumstances, the following conclusions reached by the trial judge in his judgment of 8 August 2019 were correct:

9. [85]

   In conclusion, two other matters require mention.

10. [86]

    First, on appeal the applicant contended that the trial judge was in error in accepting the Crown’s request for an advance ruling on the admissibility of the evidence that the defence had indicated it proposed to elicit from Dr de Plevitz in cross-examination. Section 192A of the Evidence Act however expressly sanctioned that course. To facilitate the efficient progress of trials and to diminish the possibility of inadmissible evidence being heard by a jury, the section authorises the Court to make advance rulings on, inter alia, the admissibility of evidence. The applicant did not refer to any authority, or any interpretation of s 192A, which would suggest that it was inapplicable to the circumstances before the trial judge.

11. [87]

    Secondly, the applicant complained that in the course of her submissions to the trial judge the Crown prosecutor had erroneously described the facts in issue at the trial. Whether she did is however of no moment as it is not suggested that the trial judge committed the same error in his judgment of 8 August 2019.

GROUND 6: THE AGGREGATE SENTENCE OF IMPRISONMENT THAT HIS HONOUR IMPOSED IS EXCESSIVE

1. [88]

   For the reasons given by Walton J, I do not consider that the applicant’s proposed appeal against sentence has any merit.

CONCLUSIONS ON CONVICTION AND SENTENCE APPEALS

1. [89]

   For the reasons given above, each of the applicant’s grounds of appeal should be rejected. I accordingly propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal against his convictions and sentence.

   2. (2)

      Dismiss the appeals.

2. [90]

   WALTON J: On 30 September 2019, a jury, by majority verdict, found Noel Greenaway (“the applicant”) guilty of 18 counts for charges (including two alternative counts) ranging from common assault contrary to s 61 of the Crimes Act 1900 (NSW) to rape and buggery: ss 63 and 79 of the Crimes Act respectively (a comprehensive list of offences is set out in a Table below).

3. [91]

   The applicant sought leave to appeal his conviction for those offences pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (grounds 1 to 5 of the application for leave to appeal). The applicant also pursued an appeal against the sentence imposed for those offences by Weinstein SC DCJ (“the sentencing judge) on 9 April 2020 pursuant to s 5(1)(c) of the Criminal Appeal Act.

4. [92]

   I have had the advantage of reading, in draft, the judgment by Macfarlan JA as to the conviction appeal brought by the applicant. I agree with his Honour’s reasons for the rejection of that appeal.

5. [93]

   The remainder of the judgment concerns the appeal from the sentence imposed by the sentencing judge of an aggregate term of imprisonment of 20 years commencing on 30 September 2019 with a non-parole period of 10 years. There was a single ground of appeal – “the aggregate sentence of imprisonment that his Honour imposed is excessive”.

6. [94]

   The resolution of that ground is greatly assisted by Macfarlan JA’s judgment on the conviction appeal. I adopt for the purposes of this judgment the relevant background of the conviction appeal including the counts with respect to which the applicant was found guilty, the background to the offending and the complainant’s evidence at trial as to those counts. I adopt the pseudonyms used for the complainants, RB, JB, KP, RF and MS.

7. [95]

   By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] (per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 (“Vuni”) at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443].

8. [96]

   Intervention is not warranted simply because the sentence is “markedly different” from other sentences that had been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (“Wong”) at [58]; Obeid at [443]. Rather, there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58].

9. [97]

   It may be noted at the outset that there are aspects of the applicant’s submissions which do not sit comfortably with those principles in that they appear to involve an appeal based on patent errors. An illustration is the applicant’s submission that the sentencing judge failed to adequately deal with the question of delay to which I shall turn below.

10. [98]

    As was stated in Clarke v R [2021] NSWCCA 236 at [236], if the applicant intended to pursue his application for leave to appeal in such a fashion, it would be desirable to bring a ground or grounds directed to specific error. It is sufficient for present purposes to note that the particular error adverted to by counsel for the applicant should be considered in the context of the manifest excess ground.

11. [99]

    It should also be noted that counsel for the applicant placed considerable emphasis upon a proposition that the sentences indicated for particular offences were themselves manifestly excessive. It is well to recall in that respect the observations of Beech-Jones J (Harrison and Cavanagh JJ agreeing) in Kirby v R [2021] NSWCCA 162 at [45] as follows:

12. [100]

    In support of the submissions counsel for the applicant provided a Table of each of the offences for which the applicant was found guilty and the indicative sentence for each offence.

13. [101]

    That Table will be useful for [disposition] of this ground. It was in the following form:

The Reasons for Sentence

1. [102]

   In sentencing the applicant, the sentencing judge, after setting out his findings of fact and the content of victim impact statements and various aspects of the documentary evidence, referred to various sentencing principles and then made findings as to the objective seriousness of the offending, which he found was made up of many and differing facets. As to sentencing principles his Honour found at [45]-[52]:

2. [103]

   As to those factors bearing upon the objective seriousness of the offences, his Honour identified the following matters:

3. [104]

   Thus, his Honour also found that the offender was in a position of authority over each of the victims by virtue of his employment. Further, each complainant was unable to remove themselves from the institution or the applicant.

4. [105]

   The sentencing judge found as an aggravating factor that each of the victims was vulnerable for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). His Honour acknowledged the need to avoid double counting as between this factor and other factors related to sentencing such as the age of the victims.

5. [106]

   The sentence judge’s overall findings as to the objective seriousness of the offending was as follows:

6. [107]

   As to subjective considerations, his Honour made the following findings with respect to the applicant:

   1. (1)

      He had no prior convictions.

   2. (2)

      He was willing to participate in a sex offender program.

   3. (3)

      There was no evidence of remorse and the applicant shows no insight into his offending.

   4. (4)

      Given the applicant’s age he was unlikely to reoffend. He was assessed in the below average range for risk of sexual reoffending. His prospects for rehabilitation were low.

   5. (5)

      His Honour accepted the Crown submission that the Court was precluded from taking into account the applicant’s prior good character in respect of the child sexual offences by reason of s 21A(5A) of the Sentencing Procedure Act. In relation to the remaining counts to which s 21A(5A) did not apply, his Honour found that the applicant was entitled to “some limited leniency”. (The applicant contended that the character references described the applicant as a loving husband and a dedicated father and grandfather, and they all described the offences as being out of character.)

   6. (6)

      Regard was had to the principle of general deterrence. His Honour found that the applicant’s conduct was to be denounced.

   7. (7)

      The offences were “mostly opportunistic” and that the applicant “probably did not plan” any particular offence.

   8. (8)

      Dr Jane Lonie, neuropsychologist, interviewed and assessed the offender at Silverwater Correctional Complex on 30 January 2020 for 3.5 hours. Dr Lonie was of the opinion that Mr Greenaway’s speed of processing information had declined. She stated that previous findings of mild extrapyramidal dysfunction and the more recent history of falls and gait change, raise the possibility of an early stage neurodegenerative illness, such as Parkinson’s disease. She was of the view that the offender’s cognitive decline is of mild-moderate severity.

   9. (9)

      Dr Obeid, geriatrician, estimated the applicant’s life expectancy to be substantially less than the median life expectancy of an 82.25 year old man in Australia of 7.95 remaining years due to co-morbidities. Dr Obeid found that the applicant had chronic ongoing medical problems. However, the sentencing judge found the applicant’s health to be unremarkable for a man of his age and approached the evidence of Dr Obeid with some caution given his limited opportunity to examine the applicant.

   10. (10)

       As mentioned, delay featured as a component of the applicant’s application for leave to appeal his sentence. The sentencing judge’s reasons for sentence in that respect were as follows:

   11. (11)

       His Honour did not accept the submission made by defence counsel that the applicant has suffered extra-curial punishment by way of media scrutiny from being named during the Royal Commission.

   12. (12)

       His Honour had regard to COVID-19 considerations and noted that the applicant was in a particularly vulnerable age group. His Honour took into account the applicant’s concerns and anxiety would likely be heightened by the lack of visitors and the reduced capacity to remain in contact with friends and family.

7. [108]

   His Honour found special circumstances and varied the statutory ratio from 75% to 50%. The sentencing judge took into account that it was the applicant’s first time in custody and that because he was of an advanced age, his custody will be more onerous.

Consideration

1. [109]

   The applicant contended that the aggregate sentence was manifestly excessive for the following reasons:

   1. (1)

      the sentencing judge did not sentence in accordance with the sentencing practices at the time (in accordance with the principle from R v Shore (1992) 66 A Crim R 37) for any offences apart from those pertaining to MS;

   2. (2)

      the sentencing judge did not adequately deal with “delay”;

   3. (3)

      the indicatives sentences for counts 2, 3, 6, 7, 12, 14, 16, 18 and 20 were all manifestly excessive;

   4. (4)

      the indicative sentences for counts 21 and 22 in relation to RF should have been less than those in relation to MS (given the requirement under s 25AA(1) of the Sentencing Procedure Act).

2. [110]

   I shall turn to each such consideration seriatim.

3. [111]

   The applicant contended that because MS was a child at the time, s 25AA of the Sentencing Procedure Act applied to the sentencing exercise for the offences committed upon her.

4. [112]

   It was further contended that all of the other offences were to be sentenced upon the principle that his Honour was required to take into account the sentencing practice at the date of the commission of the offences: See R v Shore (1992) 66 A Crim R 37 and R v MJR (2002) 54 NSWLR 368 followed in Magnuson v R [2013] NSWCCA 50; Doyle v R; R v Doyle [2014] NSWCCA 4 and Henderson v R [2016] NSWCCA 8.

5. [113]

   Even though not supported on the basis of statistics, courts have recognised that sentences for assaults and predatory child sexual assaults were less severe in the past. It was contended that the sentencing judge did not apply those principles

6. [114]

   From these foundations, the following submissions were made:

7. [115]

   Section 25AA of the Sentencing Procedure Act is in the following terms:

8. [116]

   In my view, his Honour was mindful of the need to take into account historical sentencing practices (for all counts other than counts 23-26 and 28) and accepted that non-parole periods then imposed were generally in the order of one third to one half of the head sentence.

9. [117]

   As acknowledged by the applicant, s 25AA applied to counts 23-26 and 28, and the imposition of a non-parole period of 10 years (for an overall sentence of 20 years). I accept the submission of the Crown that his Honour appears to have reflected historical sentencing practices by adopting this methodology.

10. [118]

    This approach was open to his Honour. Further, it may be observed that his Honour was able to reach this conclusion, notwithstanding the parties’ failure to provide any tables or comparative data to assist in this regard.

11. [119]

    As acknowledged by the applicant, s 25AA applied to counts 23-26 and 28, and the imposition of a non-parole period of 10 years (for an overall sentence of 20 years). I accept the submission of the Crown that his Honour appears to have reflected historical sentencing practices by this means. His Honour was mindful of the need to take into account historical sentencing practices and accepted that “non-parole periods then imposed were generally in the order of one third to one half of the head sentence”.

12. [120]

    The applicant’s submission in this respect should be rejected.

13. [121]

    The applicant made the following submissions regarding delay:

14. [122]

    As will be evident from the earlier extract from the reasons for sentence, the sentencing judge distinguished R v Todd [1982] 2 NSWLR 517. That conclusion was available to him, in my view, based upon authorities such as R v Cattell [2019] NSWCCA 297.

15. [123]

    The evidence in that trial demonstrated that the applicant had exploited the youth and vulnerability of the complainants to deter them from complaint as to their sexual abuse. In consequence, he thereby escaped justice and enjoyed, as the sentencing judge stated, “a life free from [dis]approbation or punishment for his crimes”.

16. [124]

    There was no evidence that the applicant suffered, for example, an “uncertain suspense” as a result of delay. Even if he had, his silence in the hope of remaining free would have significantly diminished the factor as a basis for reducing the sentence imposed.

17. [125]

    This contention should be rejected.

18. [126]

    The applicant contended that it was manifest that the sentence of 9 months’ imprisonment out of a 2 year maximum which the sentencing judge imposed for count 2 was excessive. Reliance was placed, in that respect, upon the nature of the (physical) assault and subjective factors such as his age at the time of sentencing and his unblemished record, notwithstanding that the complainant was vulnerable and under his authority.

19. [127]

    Similar challenges were brought with respect to the indicative sentences for counts 3, 6 and 7 (relating to the same incident) and 12, 14, 16, 18 and 20.

20. [128]

    It was contended that sentences imposed with respect to the complainant MS as to counts 23-28 were “very high” having regard to contemporary sentencing patterns. Further, it was contended that the sentencing judge indicated the same term of imprisonment of 10 years for counts 21 and 22 in respect of RF, even though he was obliged to apply the then patterns of sentencing, which, even in the absence of statistical underpinning, had been recognised as less severe.

21. [129]

    In my view, the submissions of the Crown in response to these contentions are compelling.

22. [130]

    First, I accept the submission that the aggregate sentence imposed by the sentencing judge reflected a very substantial degree of notional concurrence between the offences. The 18 indicative sentences identified by his Honour included sentences which totalled 72 years and 2 months. There were 6 individual indicative sentences for rape and buggery each of which was indicated as being 10 years or more. Four of the counts involved the rape on four separate occasions of a child aged 13-15 years while she was in institutional confinement.

23. [131]

    Secondly, when regard is had to the separate nature of the offending against five different complainants on 16 different occasions spread over a number of years, the types of considerations which warrant a greater degree of concurrency between counts (in accordance with the principles discussed in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41) are largely absent and the aggregate non-parole period of 10 years may be considered to have reflected, as previously mentioned, a very significant leniency to the applicant.

Conclusion: Ground 6

1. [132]

   Overall, when regard is had to the objective seriousness of the offending, neither the subjective case for the applicant (as I have earlier discussed in the context of considering the sentencing judge’s reasons for sentence), the particular factors relied upon by the applicant to demonstrate manifest excess, nor any other matter, indicate that the aggregate sentence imposed upon the applicant was manifestly excessive.

2. [133]

   Leave to appeal should be granted, essentially to enable consideration of the factors relied upon by the applicant with respect to this ground. Otherwise the ground of appeal should be dismissed.

Orders

1. [134]

   In the circumstances, I agree with the orders proposed by Macfarlan JA in the disposition of the appeal.

2. [135]

   WILSON J: I agree with the orders proposed by Macfarlan JA for the reasons his Honour has given.

3. [136]

   As Walton J has observed with respect to ground 6, the applicant’s complaint is pleaded as one which asserts that the sentence is manifestly excessive, although he contended in submissions that the sentencing judge erred in a number of discrete ways. Even having considered each of those separate contentions I, like Walton J, discern no error in the aggregate sentence ultimately imposed.

4. [137]

   In the circumstances that apply here, not even the extended delay in bringing the applicant before a court could operate as a mitigating feature. As the sentencing judge concluded, the delay operated greatly in the applicant’s favour, by allowing him to live his life without the stain of criminal convictions at a much younger age, with all of the opprobrium and other consequences conviction for offences of this nature would have brought him. That there was delay at all is substantially due to the applicant’s own conduct, in selecting victims who would find complaint difficult, and in seeking to further silence those victims by emphasising to them their “worthlessness” as persons others would not accept as credible.

5. [138]

   As the generous variation to the statutory ratio of sentence suggests, the sentencing judge had regard to contemporary sentencing patterns where that was required, and in so far as it was possible given the absence of evidence or information before the court to permit those patterns to be adequately ascertained.

6. [139]

   The sentences indicated for the earliest offences in time, and particularly those contrary to s 61 of the Crimes Act, might be regarded as high, but each clearly reflects the overall circumstances of its commission, including the vulnerability of the child, and the gross abuse by the applicant of his authority. When attention is paid to the whole of the criminal conduct comprehended by the aggregate sentence imposed, I agree with Walton J that the sentence cannot be regarded as unjust. The applicant was in a position of trust; he had complete power and authority over the complainants who were, in each instance, vulnerable by both background and situation. The applicant exploited those vulnerabilities to abuse children who were entirely without a means of escaping his predation.

7. [140]

   The applicant’s crimes represent a very serious course of offending against some of society’s most vulnerable young people, committed by a person in authority, over an extended period. Some of the offences carried a maximum penalty of life imprisonment. Such criminality demanded stern punishment, to address the wrong done, to make the applicant accountable, to denounce his conduct, and to deter others, principles of sentencing that applied in past decades as they do now. I agree with Walton J that the aggregate sentence imposed is not one which could be said to be manifestly excessive, and ground 6 should be dismissed.