Madden v R

WARD P: On 3 July 2019, the applicant, Patrick Vincent Madden, was convicted, following a jury trial before Acting Judge Williams SC and a jury of twelve, of a large number of counts (54 in total) relating to historic sexual offences against three complainants (each then an adolescent) in the late 1980s and early 1990s. The applicant had been charged with 59 counts and pleaded not guilty to all of those counts. Apart from alternative counts (counts 26, 31 and 33), one count (count 41) which was the subject of a directed verdict of not guilty and another count (count 40) on which the jury found the applicant not guilty, the applicant was convicted on all counts (i.e., counts 1 to 25, 27 to 30, 32, 34 to 39 and 42 to 59).

The trial commenced on 25 June 2019. The Crown case was presented over three days. Cross-examination of the complainants was brief (as I explain in due course). The applicant then gave evidence in his defence. Both Counsel addressed the jury on the same day that the applicant’s evidence was taken, and the trial judge commenced summing-up that same afternoon. The following morning, after his Honour concluded his directions, the jury commenced deliberations and, as noted above, the jury delivered its verdict on 3 July 2019.

On 22 November 2019, the applicant was sentenced to an aggregate term of imprisonment for 15 years commencing 24 June 2019 and expiring 23 June 2034 with a non-parole period of 10 years expiring 23 June 2029.

By Notice of Appeal filed on 8 November 2021, the applicant seeks leave to appeal his convictions on five grounds (as set out below). There is no application for leave to appeal against sentence. The grounds of appeal are as follows:

Ground 1 raises a question of law alone (for which leave is not necessary); and the Crown concedes Ground 1 as far as counts 20, 23 and 24 are concerned. It is accepted by the applicant that grounds 2 to 5 raise questions of mixed fact and law and therefore leave to appeal on those grounds is required. Further, the operation of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) must be considered in relation to Grounds 3 and 4.

As noted above, there were three complainants. They will be referred to by the pseudonyms adopted in submissions (RA, MA and DN). RA and MA are brothers; RA being just over three years older than MA. DN is not related to the two brothers (and indeed only met MA through the applicant). DN is around six years and eight months younger than RA and two years younger than MA. The respective counts as against each of the complainants were as follows.

Counts 1 to 15 (relating to RA) concerned four incidents referred to at the trial as incidents R1 to R4.

Counts 16 to 24 (relating to MA) concerned five incidents referred to as incidents M1 to M5.

Counts 25 to 59 (relating to DN) concerned 14 incidents referred to as incidents D1 to D14. (One of these incidents (D7) involved another adolescent, BW.)

There was some cross-over or overlap in the alleged offending, in that the incident referred to as M4 (counts 20 to 22) was an incident in a national park when both MA and DN were said to be present; and incidents D12 (counts 51 to 53) and D13 (counts 54 to 57) were two further incidents (at Bass Point in Shellharbour and at the applicant’s then home at Bangor, respectively) when, again, both MA and DN were said to be present. As will be seen, the Crown concedes that the evidence of MA and DN in relation to certain of the incidents (in particular, the incidents referred to as incidents M4 and D12) was not readily reconcilable.

As noted above, RA (who was born in late December 1972 – a fact relevant when considering the conviction on counts 1 to 3 – see Ground 2) and MA (who was born in March 1976) are brothers. In 1982, they moved with their parents and three brothers to a house in Sunbury Street, Sutherland (T 179.19). When RA was eight, the boys’ mother left the family home with one of their siblings, leaving the four remaining boys to be raised by their father (T 33-34; T 180.1-12).

At some point after the parents of RA and MA separated (and prior to 1988 when their father remarried), the applicant and his family moved into a house in Sutherland, a couple of doors from that of RA and MA. (The timing of this is of some significance for counts 1 to 3 – see Ground 2.) The evidence of RA’s and MA’s father was that, as at the date of his second marriage (in 1988), he guessed that the applicant’s family had been in the street for “a couple of years” (T 180.37). That would place the applicant’s arrival in Sutherland as being around 1986.

The applicant’s son, who gave evidence, estimated that the family moved into the Sunbury Street property in 1985 or 1986, when he was 10, 11 or 12 (T 168.38-41).

Roads and Maritime Services (RMS) records, however, showed that the applicant’s registered address was the Sutherland address from 10 April 1987 until 24 March 1991 (Ex I).

RA and MA became friends with the applicant’s children, in particular with his son, Paul (T 33-34).

The third complainant (DN) was born in November 1978 in the Albury area. The applicant was a family friend from Albury whom, prior to 1991, DN saw once or twice a year (T 92.46-48). When the applicant and his family moved away from Albury, DN’s family kept in touch with them (T 183.34-39).

After DN’s father died in January 1991, DN moved with his mother and brother to Dapto (T 183.45-49). At that time, the applicant and his family were living in Kurrajong Street in Sutherland (T 183.41-43). RMS records show that the applicant’s registered address was in Kurrajong Street, Sutherland from 25 March 1991 until 5 November 1992 (Ex I).

DN’s mother gave evidence that her family would see a lot of the applicant’s family and that the applicant would take DN out fishing and camping. DN’s mother could not remember a specific time when DN went to stay with the applicant’s family by himself but said that it could have well happened as she felt he was “in safe hands” there (T 184.22-27).

The applicant subsequently moved to a house in Bangor.

During opening address, the Crown Prosecutor outlined the Crown’s tendency case as follows (T 4.19-43):

As Ground 2 raises an unreasonable or unsupportable verdict ground in respect of a large number (though not all) of the counts, it is necessary to consider in some detail the evidence adduced in relation to each of the counts which are the subject of that ground of appeal.

RA was the first witness in the Crown case.

RA’s evidence was that when he was “probably thirteen, about thirteen, fourteen”, the applicant’s son told RA that his father grew marijuana. As RA turned 13 in December 1985 and 15 in December 1987, this places the event which led to the first incident (R1), on RA’s account as occurring some time between December 1985 and 1987. RA said he could not remember what year of school he was in when this occurred, but said it was “probably year 7 or year 8” (T 35.10). A register of admissions for Jannali Boys High School obtained by police in the course of their investigation of RA’s allegations, recorded RA as having transferred from Engadine High School to Jannali Boys High School in year 9 in February 1987 (T 195.07). The applicant notes that there was no evidence that RA repeated any year of his schooling. Thus, if RA was in year 7 or year 8 at the relevant time, this would place the event in 1985 or 1986 (not 1987).

RA said that, two or three days later, he went into the applicant’s backyard and stole some marijuana plants. RA said that a few days after he stole the plants, he was walking on Sunbury Street and was approached by the applicant in a blue and white Range Rover. A vehicle matching this make and general description was first registered to the applicant on 27 November 1985 (T 202.14). RA said that the applicant approached him and told him that “I know you stole me plants, just watch out”. RA said the applicant “put a lot of fear into me … because I was only thirteen and I was very small”.

RA said that about a week later, the applicant “just pulled up in his car one day and he said, ‘If you smoke dope you can come in my boat with me sometimes and we’ll have a smoke’ or ‘If you smoke dope, I’ve got some work on my boat. You can come and do some work’” (T 35). RA said that he said “Okay, okay. I’ll just pack the gear”, and the applicant said “Okay. All right”; and RA said that he was happy but he was “very nervous and in fear” (T 36). Asked what he did as a result of that conversation, RA said:

RA’s evidence was that when he first started to go out on the boat he was “thirteen, fourteen” (which again places the event as being some time between December 1985 and December 1987).

An RMS registration document tendered by the Crown recorded that a ten metre fibreglass work vessel named Myuna was registered to the applicant from 29 September 1987 until 22 October 1990 (Ex K; T 204.45). However, there was evidence that the applicant and his family previously owned “a cruiser-type boat … steel” around the time that they were living in Sunbury Street, and that this boat was kept at Taren Point (T 169.17-23).

RA said that, after that, he began to spend time at the applicant’s house; and that he would go over to the applicant’s house and work on his boat in the garage under the house while smoking cannabis with him (T 36.21-25). RA said that when he did this he was alone with the applicant. RA said that the applicant would also give him alcohol (T 37.17-25) and that he and the applicant became “friends” (T 39.41). RA said that he started going over there “quite a lot” and was “smoking dope all the time” (T 39.42).

RA referred to the applicant’s “34-foot cruiser” that “at one stage … was being fixed at some boat yard in the Taren Point area” and said that, once fixed, this boat was put into the water at Gymea Bay (see T 39.46). RA said that they (he and the applicant) used to go out on the applicant’s boat and go fishing (T 39.49).

Asked whether he recalled “the first time” that he was asked by the applicant to go fishing, RA said (T 40.1-4):

RA said that he went fishing with the applicant both on the water in a boat and on the shore (T 40.6).

The first of the unreasonable verdict appeals relates to counts 1 to 3, which relate to the first time that RA went fishing from the shore with the applicant (T 40). RA said that this was the first time that anything sexual happened between them (T 42.34-36). RA said that he was “about 14” at the time (T 42.41-43). The particulars on the indictment place this incident as occurring some time between 1 February 1987 and 13 March 1988.

RA said that the first time he went fishing with the applicant was “down [at] Bonnet Bay … fishing off the land … down in the carpark of Bonnet Bay” (T 40.15-16). RA said that he and the applicant went to Bonnet Bay in the applicant’s car (T 40.27); that the applicant gave him marijuana and two or three beers, which he consumed (T 40.43-41.2); that they had fishing rods in the water (T 40.40); and that at some point the applicant took his pants off and the applicant “leaned forward and started sucking me off”, meaning “with his mouth”, “a head job”, “oral” (T 41.6-37). RA said that this lasted about five minutes and that he (RA) ejaculated (T 41.45). Asked whether he could remember how old he was “at that stage that this was happening”, RA thought he was “about 14” (T 42.41-43).

RA said that after he ejaculated the applicant then said something like “okay you want to do me now” or “your turn” and put his hand on his (RA’s) head. RA then “leant forward and starting to give him head” (T 41.48-42.8).

RA said that after two or three minutes sucking the applicant’s penis, RA stopped and then masturbated the applicant with his hand until the applicant ejaculated (T 42.25-32).

RA gave evidence that, after this first incident (R1) occurred, there were more incidents of a sexual nature, saying that it was “the same process on and on. With his boat, on water, at his place, in the car” (T 43.8-9).

RA said that the sexual contact began before he left school. RA left school in year 9 (T 43.15), which was in 1987 (T 195.15-17). As already noted, RA turned 15 in December 1987. After leaving school, RA started work at a panel shop in Caringbah. When he lost that job, the applicant got him a job at “Cane’s Smash Repairs” in Alexandria (T 43.25-27). By reference to Group Certificates, RA said that he was working at the smash repairers from July to October 1988 (T 43.39-40). RA said that, while he was working there, he continued to smoke marijuana with the applicant in his garage and go out on the boat with him and have sex, saying that it was “the exact same process. I go up there in his garage, I smoke dope… We might go on the boat. Smoke dope, have sex again” (T 43.42-47).

RA said that there were many incidents on the applicant’s boat (T 43-44). Counts 4 to 10 relate to a particular incident on the boat during which RA said the applicant inserted a candle into RA’s anus (T 44.25-29). RA’s account of this incident was that he was with the applicant on a boat on the water near Gymea Bay; the applicant supplied him with alcohol and marijuana; the applicant fellated him, and then, after a couple of minutes, inserted a candle into his anus for a minute or two and fellated him again; following which RA fellated the applicant and masturbated him until he ejaculated (see T 43-47).

It should be noted that there is no unreasonable verdict challenge to the convictions on counts 4, 5, 6, 7 or 9.

Count 4 relates to RA’s evidence that he and the applicant were in the cabin of the boat, consuming beers and cannabis (T 44.44-45.5) and the applicant started to give RA “oral” (T 45.26-30).

Count 5 relates to RA’s evidence that the count 4 incident only went for a couple of minutes when the applicant took a “long, round, very thin” candle, put lubricant on it and inserted it into RA’s anus (T 45.26-46.20).

Count 6 is that, while he had the candle in RA’s anus, the applicant performed fellatio on RA (T 46.22-27).

Count 7 is that RA then performed fellatio on the applicant (T 46.32-33).

Count 9 relates to RA’s evidence that the applicant “always” ejaculated after RA masturbated him (T 46.44-47.2).

On RA’s first account of the R2 incident, he gave no evidence as to the acts that comprised counts 8 or 10. Count 8 alleged an attempt by the applicant, during the R2 incident, at anal penetration of RA. The applicant notes that the Crown Prosecutor had opened to the jury on the basis that it was during R2, on a boat at Gymea Bay, that the applicant had attempted to penetrate RA’s anus with his penis. Count 10 related to a third act by the applicant of fellatio (following the alleged attempted anal intercourse) to the point that RA ejaculated. The applicant points out that this is the way in which count 10 was particularised by the Crown Prosecutor during his opening address (T 9.4-7). It is noted that RA said that, by the time of the R2 incident, he “had been with [the applicant] about 20, 30, 40 times” (T 46.41).

During questions in chief about the R2 incident, the Crown Prosecutor asked RA whether sexual acts with the applicant ever progressed past “sucking off”. RA’s evidence in response to this was (at T 44.15-19):

The Crown explains that where the complainants did not come up to proof in relation to a count on the indictment (as was here the case with RA in relation to counts 8 and 10), the Crown Prosecutor sought leave under s 38 of the Evidence Act 1995 (NSW) (Evidence Act) to cross-examine the complainant in question, on the basis of a prior inconsistent statement (in each case that being a prior police statement that the complainant had made; albeit not a contemporaneous police statement). That was what here occurred in relation to counts 8 and 10. The Crown Prosecutor sought leave pursuant to s 38 to cross-examine RA on the basis that RA had made a prior inconsistent statement about those matters in his statement to police made in 2007 (see at T 53.5-54.48).

It is noted by the Crown that this course was not resisted by the defence, although defence counsel indicated a preference for RA’s memory to be refreshed by him being shown his statement (T 54.11-13). The Crown Prosecutor had disavowed reliance on s 32 of the Evidence Act because the relevant statement was not contemporaneous (T 54.26). The trial judge indicated that this was how the cross-examination should be approached (T 54.40-48).

Accordingly, where leave was granted to cross-examine a witness about a prior inconsistent statement (as was the case here in relation to RA), the witness was shown his statement and asked if that refreshed his memory; and the Crown says that the witness then gave evidence orally of the counts that had been omitted in the initial telling of each incident. (The Crown relies on this in resisting the complaint the applicant makes as to the evidence obtained in this manner – see the Ground 2 complaints.)

In relation to RA, the leave granted was to cross-examine RA about the contents of a statement he had made to police between 13 August and 31 October 2007. The Crown Prosecutor directed his attention to what he had said in that statement about “the incident with the candle” (i.e., the R2 incident) (T 55.7-56.42). When RA was shown that statement and asked if it ‘refreshed’ his memory as to whether anything else of a sexual nature happened on that occasion, his first response was that:

RA was then asked whether that ‘helped’ his memory as to whether anything else of a sexual nature happened on that occasion and he said:

Pausing here, insofar as the applicant places emphasis on the seeming inconsistency between the above two responses, those answers may readily be explicable if RA was unfamiliar with the concept of memory being refreshed rather than helped; and this would be a matter on which the jury’s perception of the evidence as it fell from the witness would be an important advantage over an appellate court simply reviewing the words of the transcript.

RA then gave the evidence relied upon by the Crown on counts 8 and 10 (see below). As adverted to above, the fact that RA’s evidence about these counts was elicited in cross-examination following a grant of leave under s 38 of the Evidence Act (T 53-54) is relevant to the complaint that those verdicts were unreasonable (see Ground 2).

After being shown his police statement, RA gave the following evidence (T 56.1-25):

Following on from the above evidence, there was the following (at T 56.27-41):

Counts 11 and 12 related to a sexual encounter in a room in the applicant’s Sutherland house (the R3 incident). RA was directed to his earlier reference (see as to R2, [46] above) to “an incident that you recall occurring at [the applicant’s home]” and his evidence at T 47.26-49.6 was relied upon for these counts.

There is no unreasonable verdict challenge to the conviction on count 11.

At T 48.1-10, RA gave the following evidence:

The act of RA giving the applicant “oral” (T 48.2) was not the subject of a charge. Count 11 related to the applicant performing fellatio on RA.

RA then described an attempt at penile/anal intercourse (T 48.22-25) that was also not the subject of a charge (count 12 being a charge that RA had inserted his penis into the applicant’s anus, not that the applicant had tried anally to penetrate RA in this incident) (see from T 48.12):

The applicant emphasises that this further evidence elicited by the Crown Prosecutor (of a different occasion in the applicant’s home during which the applicant attempted anally to penetrate RA) was not a charged act.

The evidence in relation to count 12 was elicited in cross-examination following the grant of leave under s 38 of the Evidence Act. The Crown Prosecutor directed RA’s attention to what he had said in his police statement about the “incident at the house where you’re taken upstairs” (from T 57.05):

This evidence then formed the basis for count 12. As noted, as to the timing of the R3 incident, RA said that he had left school by then and was either working at his first job or at the smash repairers in Alexandria (T 49.5-6).

RA said that another place where there was sexual contact with the applicant was in bushland in Menai. Counts 13 to 15 related to when he said he and the applicant drove in the applicant’s Range Rover to a “bush spot” where they smoked marijuana and engaged in the “usual” conduct of reciprocal fellatio and RA masturbating the applicant (T 49.8-50.11). RA said that there were plenty of occasions like this. On the occasion that was the R4 incident, RA said that they were parked in a “bush spot” and were getting ready to smoke dope when they saw a police car up ahead. RA said that they waited and the police car drove off.

There is no unreasonable verdict challenge to the conviction on counts 13 to 15.

RA’s evidence was that they smoked cannabis “and then him gave oral to me and I gave oral to him and I pulled him off. The usual”. Count 13 was the performance by the applicant of oral sex on RA until he ejaculated (T 49.39-50.1).

Count 14 was the performance by RA of fellatio on the applicant (T 50.3-4).

Count 15 was RA then masturbating the applicant until he ejaculated (T 50.6-7).

RA said that from the time he left school up until he moved to Kempsey in 1988 or 1989, the sexual contact continued “almost weekly” (T 50.21). He said he then “moved back and it started up again” (T 50.31). In late 1989 or early 1990, RA broke into the applicant’s home and stole property. RA said that he was “angry” with the applicant and wanted “revenge”. By that stage, he was a heavy drug user.

RA told no one about the abuse until after he was in a serious car accident in October 1991. RA suffered a brain injury in the accident. RA said he saw the applicant one further time in 1992 when he was a patient at Lidcombe Hospital being treated in relation to the effects of the car accident. RA said the pair “had one beer [and] smoked some dope” (T 51.34).

RA said that, following a lengthy period of rehabilitation, he “felt a bit more freer to tell the truth” and he told his father (T 51.19-22). RA said that he “would have told” his brother MA at some stage too but had no specific memory of having done so (T 51.44-45). RA said that a year or two after that, MA told him about what had happened to him (MA) (T 52.5-6).

In 2007, RA went to the police and made a statement but he said that they took no action (T 51.40; T 194.1-17).

RA was cross-examined (briefly) at T 60.50-65.16.

The applicant’s case in respect of counts 1 to 15 (as put to RA) was that the applicant did not smoke marijuana with RA in the garage of his home and that the incidents RA described did not happen.

MA, RA’s younger brother, was the second witness in the Crown case. MA said that when he was “maybe 1 or 2”, his mother left and (like RA) he stayed with his father. MA said that when he was “probably … in about year 4” his father remarried (as noted above, his father remarried in 1988 and thought that the applicant and his family had by then been living in Sunbury Street for a couple of years) (T 180.27-37).

MA said he thought that “it was a bit after my stepmother come but a shortly - not far after” that he became aware that the applicant was living nearby. MA remembered his brother RA going to the applicant’s home when he (MA) was in primary school. MA said RA “would have been in high school” at the time; that RA was “hanging out with Paul, they’d go out in the fishing boat”; and that RA “smoked pot” with the applicant in his downstairs garage.

MA said that “over time” he was invited to outings with the applicant as well, “[w]hether they be family outings, wife, his daughter and several of them, fishing” (at first, with the applicant’s family – T 69.26-32). MA also got involved in cleaning the boat and “doing a little bit of work”. MA said that he started helping and going out on the boat at the “end of year 6 and start of year 7 was probably when it was most times” (T 69.36). MA said that, normally, when he went out on the boat, the applicant’s family was also there. MA said that he started smoking cannabis as well; at first that he and the applicant’s son would smoke cannabis behind the applicant’s back but that “eventually it became to the point where we could smoke with him” (T 70.13-17). MA said that this started when he was “in year 7 [which would have been 1989 when he was 13] … Not so much in year 6”. There was evidence that MA completed his year 10 school certificate in 1992 (T 194.23-49).

MA’s evidence is that he would do work on the applicant’s boat which was moored at Yowie Bay; and that it was “a normal thing” for cannabis to feature on these outings. MA said that there would also be beer, which the applicant would purchase from a bottle shop at the boat ramp (T 70.39-45). MA’s impression of the applicant was that he was “a cool dad” (T 71.10).

There is no unreasonable verdict challenge to the conviction on count 16.

MA gave evidence (at T 71.14-31) that the relationship with the applicant changed in the holiday period between year 6 and High School (1988/1989 – see T 194.23-49); the change in the relationship being the incident referred to as M1. Asked as to the timing of the incident, MA said (from T 71.23):

MA’s evidence (T 71.17-21) was that:

MA said that he was shocked; that he did not know what to make of it; and that he froze (T 72.23-34).

In the course of the trial, the Crown was granted leave to amend the indictment in relation to count 16 so that the date range alleged in count 16 extended to between 1 December 1988 and 6 March 1990 (see T 210-211; 213-214; 249).

MA was asked by the Crown Prosecutor (from T 73.25):

MA’s account of this second event was the basis of the Crown case in respect of the incident M2, counts 17 and 18. Again, there is no unreasonable verdict challenge to the convictions on counts 17-18.

MA’s evidence was that, some weeks later, after school had started, the same thing (as in count 16) happened again; there was alcohol and cannabis (“the standard”) (T 73.46) and MA woke up to find the applicant giving him oral sex, which continued until he ejaculated (T 74.1-13). His evidence was (from T 73.40):

Count 17 was the performance by the applicant of oral sex on MA on this occasion.

Count 18 was the performance by MA of fellatio on the applicant (T 74; T 87).

MA also thought that there was some anal sex (this was not the subject of a charge) (from T 74.22):

The applicant notes that the Crown case in respect of the incident M2 was not that the applicant engaged in anal intercourse with MA on that occasion. The Crown opened its case to the jury in respect of counts 17 and 18 as follows (from T 13.13):

The applicant notes that the Crown was granted leave to cross-examine MA pursuant to s 38 of the Evidence Act as to the contents of a police statement dated 19 April 2017 and MA gave further evidence as follows (T 86.44-87.32):

The applicant says that, in contrast to the Crown’s earlier cross-examination of RA in respect of counts 8, 10 and 12, the further questions of MA in respect of count 18 built upon MA’s earlier answer that, during the M2 incident, he (MA) had given oral sex “back to him” (the applicant) (see at [86] above).

MA’s evidence was that in this period of time, when MA started year 7, sexual contact with the applicant was weekly, in multiple different locations (“house, parks, car. … Just anywhere. Anywhere possible. Bushes at national parks” – see T 74.46-48). MA’s evidence was that the frequency of these encounters “eased off” towards the end of “year 8 or year 9ish sort of thing when I become more self aware” (T 75.5-9). The applicant says that, on the Crown case, this meant that the allegations concerning the applicant’s conduct towards MA focused on the period between when he was in year 8 and year 9 (1990 and 1991).

MA’s evidence was that on every occasion of sexual contact, he smoked cannabis beforehand (T 75.11-13).

Incident M3 concerns an incident after the applicant moved to a house on a different street in Sutherland, slightly further away from MA’s house (Kurrajong Street). RMS records show that the applicant’s registered address was this place (Kurrajong Street) from 25 March 1991 until 5 November 1992 (Ex 1).

MA said that he would still visit the applicant there but it was not the same as before (“it wasn’t as much hanging out… By that stage our thing had become hidden…. we were going to keep this in the low down” (T 76.1-7). Count 19 related to an incident that was said to have occurred at the Kurrajong Street house.

There is no unreasonable verdict challenge to the conviction on count 19.

MA said that during year 8, there was an occasion when he stayed at the Kurrajong Street house one night. MA could not remember why he stayed overnight but thought it might have been because he had been to a concert with the applicant’s son. MA went to sleep in the spare bedroom and awoke to the applicant performing oral sex on him, which continued for some minutes until he ejaculated (T 76.9-77.29). MA remembers being worried about how close they were to the applicant’s children (T 76.24-28).

The first of the incidents concerning MA in respect of which the applicant seeks to bring an unreasonable verdict challenge is the M4 incident.

Incident M4 relates to an occasion (when MA said he was around “year 8, year 9-ish, around there”) when the applicant introduced him to a boy younger than him (who the Crown identified, and there seems to be no dispute as to this, as DN) (T 77.31-50). MA said that on this occasion, he and the applicant picked up this boy (DN) at Wollongong and drove in the applicant’s car to the Royal National Park (T 78.1-8).

MA said that it was dark when the applicant pulled into “a little dirt bay where people parked to do bushwalks” (T 78.4-8). MA’s evidence was that the applicant got a rug out of the car and they went into the scrub. MA said that they must have smoked cannabis as there was “always smoking first” (T 78.15-17). Count 20 relates to the applicant making MA insert his penis into the applicant’s anus (T 78.32-40) and count 21 relates to the applicant guiding MA to insert his penis into DN’s anus after which MA ejaculated (T 79.11-40).

MA said that the applicant laid the blanket down and then made MA give the applicant anal sex (T 78.33). The Crown concedes that this count was statute-barred – see below; and the conviction on this count should be quashed. The applicant also raised an unreasonable verdict challenge to his conviction on this count.

MA said that the applicant then gestured for MA to have anal sex with DN and so MA did that until, he thinks, he ejaculated (T 79.13-37). There is an unreasonable verdict challenge to the conviction on count 21.

When MA first recounted the M4 incident, his evidence was that the act that was charge as count 21 was the end of the episode (from T 79.39):

In particular, the applicant emphasises that MA gave no evidence in respect of count 22 (that being the allegation that, during this incident, the applicant inserted his finger into MA’s anus). It is noted that the Crown Prosecutor opened to the jury on count 22 as follows (T 15.3-9):

MA’s evidence in relation to count 22 was elicited by means of cross-examination by the Crown Prosecutor following a grant of leave under s 38 of the Evidence Act (his Honour ruling that this be conducted in the same fashion as for RA, by seeking to refresh the witness’s memory with his statement – see T 85.19). After being shown his police statement dated 19 April 2017, MA gave evidence that, after he had anal sex with DN, the applicant put a finger in MA’s anus (T 88.15). (The fact that this evidence was elicited in this manner is again a matter raised under Ground 2.)

The evidence given by MA in relation to count 22 under cross-examination (T 87.37-88.27) was:

MA gave evidence that he met DN again a year or two after the (above) first incident with DN. MA remembers picking DN up in the Wollongong area in the applicant’s car (T 79.48) “between a year and two” after the first meeting (T 80.6). MA said the applicant’s vehicle was a Commodore at the time (T 80.49).

There was evidence that the applicant first registered a Commodore on 19 June 1992 and that he had made a report to police on 22 November 1993 about his car having been damaged that day while parked at the Bushrangers Bay car park at Bass Point in Shellharbour (T 200.48-201.19). The police report records that the applicant reported that his car had been broken into between 9.45am and 10.30am that day. The indictment for counts 51 to 53 specified this date as the date of the offending conduct.

MA’s evidence was that there was cannabis “as usual”, and they went into the bush. MA said that on this second occasion the applicant “basically sets up camp and it was oral sex day” but that the three were disturbed when someone “came along”. MA said that there was “a bit of a … panic”, and they went back to the applicant’s car (T 80.27-34) and that when they returned to the applicant’s car, he saw that it had been damaged (“a window had been broken - like someone had maybe attempted to steal something out of there”) (T 80.44-49).

MA said that he only ever met DN on those two occasions (T 81.1); and MA remembers giving oral sex to both the applicant and DN on that occasion.

No charge in respect of MA was brought in respect of this second occasion

MA said that the sexual contact occurred “much less” once he was in year 9 (1991 – see T 194). MA said that he would generally try to meet the applicant only when he really needed “pot” (T 81.15). There was an occasion when the applicant was working as a security guard at a real estate agency at the Bangor Tavern shops when MA arranged to meet him there to get cannabis (T 81.25-38). This incident gave rise to counts 23 and 24. The Crown accepts that counts 23 and 24 were statute barred.

MA said that when he was in year 9 he went to see the applicant at a real estate agency in Bangor where the applicant was working as a security guard; that the applicant took him to a “tea room out the back of the offices” where there was anal sexual intercourse (“me to him”) and oral sex (T 82.1-39). Count 23 related to MA performing fellatio on the applicant on this occasion.

MA said that he (MA) then put his penis in the applicant’s anus (T 82.11-13), which is count 24. MA thinks the applicant might have tried to do the same to him but said that it did not go “down too well” and so the applicant stopped (T 82.11-15) (this attempt not being the subject of a charge).

MA left school in 1992 and started an apprenticeship. MA said that the sexual contact with the applicant stopped when he left school at the end of year 10, which was the end of 1992 (T 86.09-12).

MA said that he never disclosed what was going on to anyone at the time as he was known as “a tougher guy” at school and he had to “keep my persona up – or whatever – I’ve always played the tough guy” (T 83.1-3). However, after RA told him of his allegations, MA said that “the penny dropped why [RA] also hung around Pat”. This led to MA telling RA his own story and then, eventually, he went to the police. MA first went to the police in 2016 but he said that they sent him away as they said there was no evidence (T 83.33-38).

MA’s wife gave evidence that MA first made a complaint to her in 2006 or early 2007 (T 157.39); and that MA mentioned he had been abused when he was younger and raised an allegation of sexual abuse on a fishing boat (T 157.34-158.16).

The cross-examination of MA comprised the following six questions (T 88.33-89.2):

DN was the third witness in the Crown case (and the complainant for the majority of the counts). Growing up (and prior to 1991), DN said that he saw the applicant once or twice a year.

DN said that, shortly after the death of his father (which was in January 1991), possibly in the Easter holidays that year, his mother arranged for him to go and stay with the applicant’s family at the Kurrajong Street house (T 94.3-95.40; Ex C). DN was 12 years old at the time (T 98.8-9) and had not had marijuana or alcohol before.

DN’s evidence is that after being at the Kurrajong Street house for a night, the applicant arranged to take DN out fishing on his boat at Yowie Bay. DN said that the applicant got home from work and drove DN to the marina where the boat was moored, stopping at a bottle shop along the way to buy “Strongbow” for DN. DN had never drunk alcohol before (T 96.26-34).

While on the boat, the applicant gave DN alcohol and cannabis, which he had not had before, and it was not long before he was feeling ill (T 97.38-45). The applicant told him to go and lie down on the bunk. When DN went to get into the bed, he noticed it had been made in “a weird way” and the applicant told him that that was how they used to do it in the navy. DN lay down and believes he must have passed out (T 98.34).

DN’s evidence is that some time during the night he woke up and the applicant’s hands were on his penis. DN asked “what are you doing?”. The applicant then began to give him oral sex. DN said he was in shock and was hysterical, crying out “stop. Stop. My dad wouldn’t want you to do this. Please stop” and “my dad will kill you for this when he finds out”. DN was crying and tried to push him away with his hands but the applicant “kept on doing it” (T 98.33-46). The applicant responded that “Your dad wouldn’t mind. Your dad would want this sort of thing” (T 98.43-45). The applicant kept going until DN ejaculated and then asked him “does that feel good?” (T 99.13).

There is no unreasonable verdict challenge to the convictions on count 25 or the alternative count 26.

The next time that DN saw the applicant was at a family friend’s 18th or 21st “or something along them lines” in Albury (T 99.38). It was about “a month or two” after the previous incident (T 100.13).

DN’s account of the incident was that: the applicant was in Albury with his family and arranged to take DN fishing; the applicant picked up DN from where he was staying and drove him to the Hume Weir to go fishing (T 99-100); they drove around for a bit, until the applicant said that they were in a good spot for fishing and parked the car; the applicant got a tartan picnic blanket out of the car and said to DN “why don’t you come and lie down here for a minute”; and DN lay down and the applicant put his hands on DN’s penis. DN says he said “it’s this game again” and the applicant replied “this is our … secret fishing game…and you can’t tell anyone about it” (T 100.43-101.6).

Count 27 relates to the conduct on this occasion, namely that the applicant played with DN’s penis and then performed fellatio on DN until he ejaculated (T 101.3-6). DN said that the applicant then asked him, as DN said he always did, “did that feel good?”. DN said he told him that he did not want to play that game and just wanted to go fishing.

There is no unreasonable verdict challenge to the conviction on count 27.

DN’s evidence was that he thought the next time that he saw the applicant was on a weekend (T 101.49) not long after the Albury incident and he was still aged 12 (T 102.7-8). DN said that he went fishing with the applicant on his boat again; that they went to “pump the yabbies”; and did some fishing. DN said that there was “Strongbow” and cannabis (T 102.21-24).

There is no unreasonable verdict challenge to the convictions on counts 28 to 33.

Count 29 relates to an incident after DN became sleepy and went into the cabin area of the boat (T 102.32-103.9). DN said that the applicant put his hands on DN’s penis and then performed fellatio on DN until he ejaculated (T 102.45-103.21).

Count 28 is that the applicant then took his own pants off and placed DN’s hand on the applicant’s penis (T 103.24-25).

Count 30 (alternatively 31) relates to DN’s evidence that the applicant then brought his penis up towards DN’s mouth and “tried to get me to perform oral sex on him”. DN said that the applicant’s penis went into his mouth, causing him to gag and making him want to throw up (T 103.50-104.20). DN said that the applicant’s penis was in his mouth for 10 to 20 seconds. DN said that he said “I don’t want to do that” and “please don’t make me do that”.

DN says that the applicant then rolled DN onto his stomach and “hopped in between my legs from behind … and just proceeded to push his penis into my anus” which DN said caused “the most excruciating pain I’ve ever felt in my life”. DN was crying and saying “please stop”, “please get off me”, “my dad will kill you” but he said the applicant “just kept on going” for about ten minutes until it appeared that he ejaculated (T 104.22-44). DN said that the applicant used lubricant that he kept in a film canister (T 104.50-105.5). DN’s evidence is that the next day, DN noticed that he was bleeding from his anus (T 105.27-32).

Pausing here, I note that DN’s father had died in January 1991. Therefore if the incident occurred in the following Easter holidays then it is not clear why the reference to “my dad will kill you” would have been made.

DN said that during 1991, his family changed addresses several times but remained in the Dapto area. DN said that his mother would frequently send him to visit the applicant’s family and, on those occasions, there would always be sexual contact, “whether it be fishing or whether it would be, you know, In the, in the house when no one was home or whether we would go for a drive somewhere” (T 106.9-14). DN said that one of the places they would go was the Audley National Park (T 106.24); and that another place was at Bushrangers Point (T 107.6), where they would go fishing from the shore. According to DN, the applicant would pull out the same picnic blanket he had used in Albury (see incident D2 above), perform oral sex on DN, and then try to get DN to do the same to him (T 107.11-23).

There is an unreasonable verdict challenge to the convictions on counts 34 to 35.

Counts 34 and 35 relate to the evidence that DN gave as to the “the first time” that he “went to this park and the picnic blanket was produced” (T 107.25-39). DN said that it was at Albury that the picnic blanket was produced “originally at that spot: and then on the next occasion when he saw the blanket in the national park was “within the next four to six months maybe, somewhere around there” after Albury incident (T 107.37-43). DN gave the following evidence about the incident (T 108.1-23):

The applicant contends that this account was insufficiently particular to found a charge, which contention forms part of Ground 2 (unreasonable verdicts).

The Crown notes that later in his evidence DN confirmed that this incident was the second time he saw the applicant produce that picnic blanket (the first time being in Albury) (T 117.39-50).

The applicant notes that the Crown Prosecutor opened to the jury in respect of this incident (D4) as follows (T 19.9-22):

DN gave evidence that another place that the applicant used to take him to in his car was to Woronora bridge (T 108.25-49).

Counts 36 and 37 relate to “the first time” that the applicant took DN there (T 108.37-43). (A complaint made in Ground 2 is that the evidence that DN gave about counts 36 and 37 was insufficiently particular to sustain the verdicts.)

The evidence of DN about the D5 incident is as follows (T 108.25-110.16):

The Crown notes that in DN’s later evidence DN confirmed that this was an account of “the first time” he had been taken to Woronora Bridge, and that DN gave further evidence that on this first occasion the car in question was the applicant’s Range Rover (T 118.9-27).

DN said that there were occasions he also had marijuana with the applicant at his home at Kurrajong. DN’s account of one such occasion (T 110.35-43) formed the basis of counts 38 and 39. The conviction on ground 38 is subject to the unreasonable verdict challenge; not the conviction on count 39.

DN’s account is that one night, the applicant invited DN to come into the garage of the Kurrajong Street house with him while his wife was asleep. The applicant gave DN some marijuana out of a bong and then bent him over a table and pulled down his pants (T 110.39-40). DN said that the applicant inserted a bottle into DN’s anus (uncharged) and squeezed some type of liquid out of it and then had anal sex with him (T 110.40-43). DN’s evidence was (from T 110.35):

As can be seen from the above, when DN first recounted the bottle incident, he did not give any evidence about count 38 (i.e., that the D6 incident involved an act of fellatio). Indeed, DN gave evidence that he did not “believe there was any sort of activity before the bottle” (T 111.33).

The evidence giving rise to count 38 was elicited in cross-examination of DN following a grant of leave under s 38 of the Evidence Act. (Again, the fact that the evidence had to be elicited in this manner founds a contention under Ground 2 that the verdict in respect of count 38 was unreasonable.) His Honour directed that the cross-examination of DN about count 38 be undertaken in the same manner as previously described in respect of the other witnesses (T 145.31). DN’s police statement was dated 8 February 2017.

The cross-examination was as follows (from T 146.33):

Thus, after referring to his statement, DN said that he recalled an act of oral sex (the applicant performing oral sex on him) before the applicant had penile/anal intercourse with him (T 146.37-147.9). As noted, there is an unreasonable verdict challenge to the conviction on count 38.

DN’s evidence is that the applicant used to ask DN if he had any friends who would want to come fishing with them (T 112.14-18). Counts 40 to 42 reflected an occasion involving DN’s friend (BW). (As will be recalled, there was a not guilty verdict for count 40 and a directed not guilty verdict for count 41. There is no unreasonable verdict challenge to the conviction on count 42.)

DN’s evidence is that he thought that he would have been in around year 8 by then (T 113.2). DN said that the plan was to do some fishing on the boat and then the applicant was going to take the boys out on the pilot boat that he was working on at the time (T 112.31-37). DN said that the applicant drove them to the Yowie Bay marina stopping for Strongbow at a bottle shop on the way (T 113.7-11). The three rode in the dinghy out to the boat and pumped for yabbies. Both DN and BW drank beer and smoked marijuana (T 113.20-24). DN remembers becoming sick again. DN said that BW was “quite drunk and happy” (T 113.48).

DN remembers sitting on a milk crate fishing at the back of the boat, when BW joined him and started touching his penis. DN said that he had spent a lot of time with BW before this and nothing like this had ever happened before so he thought BW must have been coerced into it. However, he did not hear the applicant say anything to that effect to BW prior to the touching occurring (T 114.1-48).

DN said that the applicant said “oh look at you two, why don’t you come down here” (T 114.9-10). He said that they went downstairs and DN lay on the bed first, followed by the applicant, followed by BW. DN said that the applicant started trying to play with BW’s penis but BW told him to stop, saying “no, no, stop … this is wrong, there’s no girls here” (T 114.29-33).

DN said that the applicant then stopped what he was doing to BW and that the applicant had anal sex with DN (T 114.36-115.17).

DN’s evidence is that the following day, they took the pilot boat out, as planned. There are photographs of the boys on the pilot boat taken that day (Ex D). Later on, the applicant pulled DN aside and told him that if BW said anything “just say that [BW] … hit his head pretty hard on the bunk last night, he must’ve dreamt it” (T 115.36-46). DN’s evidence is that later on, BW asked “what happened?” (T 115.48-50) and DN remembers telling him he hit his head really hard on the bunk “and maybe you were dreaming, or tripping out” (T 115.50-116.2).

The evidence giving rise to count 40 came not from DN (who did not hear the applicant telling BW to do anything) but from BW. BW remembered the weekend and that “the highlight” was the promise of the ride on the pilot boat (T 151.50). BW said that he was given alcohol and cannabis and that he felt drowsy (T 152.48-153.36). BW said he remembered being helped to the back of the boat to urinate and then he went to sleep (T 153.38-42). The next thing he remembered was “my hand on [DN’s] penis, and him touching me” (T 153.45). The applicant was nearby and was encouraging them to touch each other (T 154.6-7). BW thought that it was all “some sort of weird dream” until police contacted him in February 2017 (T 155.17-22). The jury found the applicant not guilty of this count.

No evidence was given in relation to count 41 and, as noted, that was the subject of a directed verdict (T 215.25-30).

These counts are the subject of Ground 1 in the appeal, the applicant maintaining that they are statute-barred. Otherwise there is an unreasonable verdict challenge to the conviction on count 44 only.

DN’s evidence is that, after working on the pilot boat, in around 1992 the applicant started working for TNT as a night security guard (T 118.39-119.25). The applicant was still living in the Kurrajong Street house at this time (T 118.50). As noted, the applicant was registered with the RMS as living at that address between March 1991 and November 1992 (T 202.20).

DN said that one night while the applicant was working as a security guard, he took DN to work with him. DN remembers driving into a warehouse in the applicant’s car (T 119.21-28). The applicant was in charge of the gate. DN sat there with him and found it “pretty boring” (T 119.37). DN remembers that they did a patrol and did a loop with one of the trucks (T 120.14-20). DN said that they then got into the back of a white TNT van and the applicant pulled the door shut (T 120.29-30). DN said that at some point in the back of the van, the applicant played with his penis with his hands and fellated him.

The evidence relied on for counts 43 to 45 was (from T 121.10) as follows:

Count 43 relates to the evidence that the applicant played with DN’s penis and then put his mouth on DN’s penis (T 121.1-3).

The applicant notes that, in respect of count 44, the Crown had opened to the jury as follows (T 21.16-18):

As extracted above, DN said that the applicant took out the canister of baby oil and put it on DN’s penis and then bent over onto all fours and tried to get DN to insert his penis into the applicant’s anus. DN said, however, that he was “limp I.. wasn’t willing to do anything, so he soon got sick of trying to do that”. As to the issue of penetration, DN said that there “might have been slight penetration…but you know I wasn’t doing the motions of what you do to have anal sex as he would do to myself” (T 121.16-45).

Following a grant of leave under s 38, DN was shown his police statement and gave the following evidence (from T 148.27):

The applicant points to the fact that unequivocal evidence of penetration was only elicited in this manner (see his complaint that the verdict in relation to count 44 is unreasonable as the jury ought to have entertained a doubt about penetration).

Count 45 relates to the evidence that the applicant then had DN lie on the ground on all fours; the applicant put lubricant on his penis and had anal sex with DN until he ejaculated (T 122.4-7).

The Crown Prosecutor opened on incident D9 as follows (T 21.21-31):

DN’s evidence is that when the applicant was working as a private investigator, he would phone DN when he was in the Wollongong area and tell him to take the day off school so they could do something together (T 123.35-40). DN said that accepting these invitations was a means by which DN could get marijuana (T 123.42-46). DN said he would sometimes get marijuana before sexual contact and “always after” (T 123.50).

DN’s mother gave evidence that she was aware that the applicant would visit her sons at their Dapto home when he was in the area (T 184.49-185.4); saying that she was working full time by this stage and that it was accordingly up to DN to make his own way to school. DN’s mother said that she would not therefore have been aware if he was skipping days at school (T 185.16-17).

DN said that “most of the time” the applicant would pick him up from his house and they would drive to the Shellharbour area, where he would pull into a secluded track. His evidence was (from T 123.35):

DN’s evidence that “he [the applicant] would perform he would play with my penis with his hands, perform the oral sex have me ejaculate” was the basis of count 46 (sexual intercourse with child over 10 and under 16, s66C(1)); the evidence that he would “sort of roll me over on my stomach in the back of the seat and proceed to have anal sex with me from behind until he ejaculated” was the basis of count 47 (sexual intercourse with child over 10 and under 16, s66C(1)).

One of the contentions under Ground 2 is that this evidence was insufficiently particular to sustain counts 46 and 47.

DN said that the applicant came to his house in Dapto “a few times” but he “was always very paranoid of coming to my place sometimes he’d have me meet him down the street”. On other occasions, DN said the applicant would quickly come over, lock the door and close the blinds and have anal sex with DN (T 124.35-44).

Counts 48 and 49 related to the “the first time” that the applicant came into DN’s house at Dapto (T 124.50-127.7). DN arranged with the applicant that he would take the day off school and the applicant would visit (T 125.2-5).

There is no unreasonable verdict challenge to the conviction on counts 48 and 49.

DN said that he and the applicant were in DN’s bedroom; the applicant took off his suit and hung his coat on the cupboard and carefully folded the trousers so they would not get crushed; and left on the singlet or t-shirt he would always wear underneath (T 126.35-39). DN said that he lay down on the bed clothed and the applicant took DN’s pants off. The applicant played with DN’s penis and then put DN’s penis in his mouth (T 126.42-46).

DN said that the applicant then had anal sex with DN until he ejaculated (T 126.50). The applicant then got dressed and gave DN some marijuana (T 127.1-4).

DN gave evidence of another incident at his home in Dapto when three of his friends were there. DN said it was probably at the beginning of year 9 and he took a day off school with three friends. DN said that he and his friends wanted some marijuana but had no money. DN had told them that he used to get marijuana from his uncle and so his friends asked him to call his uncle to get some. DN said he agreed but told them they would have to hide as his uncle would not come to the house if they were there (T 127.35-42).

DN rang the applicant and said he was home. The applicant said he would come over and DN sent his friends out to hide in a laneway (T 127.47-50). DN said that the applicant arrived and they went into the bedroom (T 128.1-8).

DN says that the applicant gave DN oral sex (not the subject of a charge) and then had anal sex with him until he ejaculated (T 128.1-8) (count 50). DN said that he then asked for some marijuana and the applicant got some from his car and gave it to him (T 128.18-23). DN said that as the applicant drove off, he must have noticed DN’s friends waiting nearby as he called him, angry, and said “they were your mates there … don’t ever do that again” (T 128.32).

There is no unreasonable verdict challenge to the conviction on count 50.

Apart from the incident with BW, DN said that there was another occasion involving sexual activity with the applicant and another person (T 128.49-129.9). DN gave evidence of an occasion when he had arranged with the applicant to take the day off. DN said that the applicant pulled into the driveway in his red Berlina (a car which the applicant first registered on 19 June 1992) and someone was sitting in the front of the car. DN said he jumped into the backseat and the applicant said to him “you remember [M], don’t you?”. DN said that he had met “M” some years before when the applicant was living in Sunbury Street and that he knew M to be a friend of the applicant’s son Paul (T 129.7-9). There was no dispute that this person must have been MA.

At T 129.11, DN said that he had just met M briefly when he was at Sunbury Street with Paul and another boy and that they were walking to somewhere and met this M in the oval along the way. (Note that MA’s earlier evidence was that the first time he and DN met each other they had engaged in sexual activity with the applicant and one another in the bush – see counts 20 to 22.)

DN said that he thought M was older than him “roughly 17, something like that” (T 129.33). DN said he would have been introduced to “M” as “D”. DN said the applicant told them that they were going to go for a drive to, “check out the surf” or something like that, and they drove to the Bass Point area (T 129.45). DN said that when they arrived the applicant parked his car in a carpark along a dirt road and grabbed a picnic blanket out of the boot; and that the applicant rolled a joint and said “we’ll just go for a walk and we’ll smoke this around the corner” (T 130.22). DN said that they went down to the rocks and around a corner and the applicant put the picnic blanket down.

DN’s account of what happened next (from T 130.24) formed the basis of counts 51 to 53:

Count 51 relates to the evidence that the applicant put his hand on DN’s and MA’s penis and the applicant then gave oral sex to DN (T 130.34-39) while he had his hand on MA’s penis.

Count 52 is that the applicant then had anal sex with DN until the applicant ejaculated (T 131.2-3).

It is noted that DN said that the applicant then directed MA to have anal sex with DN. DN said that MA seemed reluctant but the applicant told him “no, it’s okay” and that MA had anal sex with DN (T 131.3-34) (this act is uncharged although the Crown notes that this bears a resemblance to MA’s account of count 21). DN said that MA had anal sex with him until MA ejaculated (uncharged) and that the applicant then performed oral sex on DN until he (DN) ejaculated (T 131.32-34) (this is also uncharged).

DN did not recount any evidence relating to count 53 on his first account of the incident. Evidence in relation to count 53 was elicited by means of cross-examination following a grant of leave under s 38 of the Evidence Act. This was again done, at his Honour’s direction, by refreshing the witness’s memory with his statement (from T 148.5):

As noted, when they got back to the car, there was glass all over the seat as the back window of the car had been broken (T 131.49-50) and something had been stolen (T 132.1-4). This was reported to police on 22 November 1993.

There are unreasonable verdict challenges to the conviction on counts 51 to 53.

Incident D13 relates to an incident when DN was in about year 9; and the applicant’s family moved to a house in Menai Road, Bangor (T 132.18-19). RMS records indicate that this was on or about 6 November 1992. DN went to stay the night at the applicant’s home. The applicant’s wife was away and his daughter was not there either. His son was there for a while but left. DN said that at about 7.30pm, the applicant received a phone call and they went and picked up MA from Sutherland (T 132.37-43).

DN’s evidence is that the three returned to the applicant’s home in Bangor, where they had some cannabis (T 133.47-50). DN said that the applicant said “come on, let’s go down to the bedroom” and that he and the applicant went into the bedroom. DN said that MA said he would be there soon (T 134.48-49).

DN’s evidence as to what took place inside the bedroom was as follows (from T 134.45) and formed the basis for counts 54 to 57:

Count 54 relates to the evidence that, once in the bedroom, the applicant performed fellatio on DN (T 134.50).

Count 56 relates to the evidence that the applicant then got DN to have anal sex with him (that is, DN penetrating the applicant) (T 135.1-2). DN had sex with the applicant until he ejaculated.

Count 57 relates to the evidence that the applicant then had anal sex with DN (T 135.15).

Count 55 was an allegation that DN had put his mouth on the applicant’s penis. When first questioned about this subject matter, DN’s evidence was equivocal (T 135) (see as extracted above), where DN said that he was not 100% sure whether there was any attempt of oral intercourse on this occasion, saying that “it happened that many times. It may be – I can’t say yes or no” (T 135.24-25).

The evidence giving rise to count 55 was elicited in cross-examination following a grant of leave under s 38 of the Evidence Act (T 149.18-30):

As noted above, the next morning the applicant asked MA “what happened to you last night” and he said he had fallen asleep (T 135.50). DN said that this was the last time he saw MA.

DN said that one other occasion that stuck out to him was the applicant’s daughter’s 18th birthday party (T 137.33).

DN’s mother gave evidence about attending a party at the Bangor house, possibly for the 18th birthday (T 185.24-27). The applicant’s daughter was born in November 1977 (T 205.38-39).

DN said he drank alcohol at the party and fell asleep in the loungeroom (T 138). During the night, the applicant fellated him and had anal sexual intercourse with him until he ejaculated (T 138.17). This formed the basis for counts 58 and 59.

There is no unreasonable verdict challenge to the convictions on counts 58 and 59.

DN said that during the night, the applicant came into the lounge room and put his mouth on DN’s penis (T 138.14-17). DN remembers that the applicant was drunk and was trying to kiss him, which made him sick (T 137.30-138.26). Count 58 is the act of fellatio.

Count 59 is that the applicant then had anal sex with DN until he ejaculated (T 138.41).

DN left school part way through year 10 and moved in with a girlfriend, at which point his contact with the applicant decreased and then stopped (T 136.37-137.16). He had some contact with him once again when he moved back in with his mother (T 137.18-24). During that period, the applicant sometimes stayed at DN’s home. On those occasions, he would sleep in DN’s room and, after everyone had gone to sleep, he would have sex with him (T 139.17-26). The sexual contact continued until DN moved out of home (T 139.28-34).

In 2000 (the year his daughter was born), DN told his then partner that something had happened to him (T 140.12-19; T 190.28-33). The same year, he also told a counsellor (T 140.45-49) (who made a record of a complaint of abuse by a family friend at an appointment in 2000: T 205.21-23). In 2001, he told his mother (T 141.9-11; T 186.20-28). DN went to the police in December 2016.

Cross-examination of DN comprised the following seven questions (T 149.36-150.11):

The applicant’s son gave evidence that RA was “constantly” at his house on Sunbury Street (“He was at our house more than I could say he wasn’t at our house. He was always at our house… he was always downstairs hanging out with my dad”) (T 169.34-35). The applicant’s son was aware that they were smoking marijuana down there (T 169.48); he said that there was “always cannabis” in the house, which belonged to his father (T 170.3). The applicant’s son said that RA and his father went fishing together “many times”; and he said that “all the time” it was just the two of them (T 170.10). The applicant’s son said that MA was also “constantly” at the house but largely to visit him and not his father (T 170.25-26).

His evidence was that when the family moved to Kurrajong Street, RA and MA were still “constantly” there; and that there was also cannabis around at the second house (T 171.26-31).

The applicant’s son also said that DN and his brother came to visit “on, you know, umpteen occasions” and that DN stayed over “heaps” (T 172.3-9); and that there were occasions when his father took DN fishing (T 172.12).

The applicant’s son confirmed the applicant’s prior employment on pilot boats, as security and as a private detective; and remembered the applicant taking people, including DN, to work with him (T 172.19-49). He also said that there were constantly film canisters around the house as his father used to keep cannabis seeds in them (T 173.3-5).

RA and MA had a brother who also smoked marijuana in the garage under the Sunbury Street house with RA and the applicant (T 175-176). He said that RA would go the applicant’s house “fairly regularly” (T 176.44) and that RA would go out to help the applicant on his boat “regularly” (T 177.17).

AO, a friend of RA, gave evidence about getting beer and marijuana from the applicant in his garage under the house when AO was 16 or 17. AO met the applicant through RA and drank beers and smoked cannabis with them “a handful of times”. AO never saw any touching between the two (T 161.5). AO remembered that RA was frequently away and would say he had been with the applicant “fixing the boat or going fishing” (T 161.14-16).

The applicant was arrested first in relation to DN’s allegations, after which he participated in an electronically recorded interview with the police (ERISP) on 7 December 2017 (see MFI 15). The applicant admitted knowing DN but (somewhat equivocally) denied having had a sexual relationship with DN (“not really, not a sexual relationship, no” (see MFI 15 at Q&A 40), saying that their relationship was “more fishing” (see MFI 15 at Q&A 42). The applicant accepts that his answers to several questions were somewhat equivocal, particularly as to whether he had ever supplied DN with alcohol or marijuana and in response to one of DN’s allegations put to him by the interviewing officer (see, in particular, MFI 15 Q&A 37 to 39).

The applicant was arrested in respect of RA’s and MA’s allegations on 26 March 2018 but declined to participate in an ERISP on that occasion (T 196.33-35).

The applicant gave evidence on the morning of the fifth day of the trial (T 216-239).

The applicant’s evidence was that he moved into Sunbury Street in 1985 (T 216.36-40); he then lived at Kurrajong Street and then in Menai Road, Bangor (T 217.15). The applicant worked with the Maritime Services Board from 1988 to 1992 and then as a private investigator (T 217.7-9). The applicant accepted that he had boats, that he used to go fishing, that he became friends with RA, MA and their brother, and that the boys used to do work on his boats, and that he took the boys fishing many times (T 217.45). The applicant did not recall taking RA or MA fishing on their own but accepted that it was possible (T 218.1-6).

The applicant accepted that he had a longstanding friendship with DN’s family and that, after DN’s father died, his mother would send him to his place to stay (he said for some discipline as DN was “quite an unruly boy”) (T 218.8-13). The applicant accepted that he had taken DN fishing “many times” (T 218.16).

The applicant accepted that he used to smoke cannabis and that he would smoke it in the downstairs garage (his “recreation area” where he kept boating equipment and other stores) at Sunbury Street (T 218.24-27). The applicant denied giving cannabis to any of the boys and also denied giving them alcohol (but admitted that he might have smoked some cannabis with RA’s and MA’s brother once he was 18) (T 218.33-219.7; T 224.1-30). The applicant said that it is difficult to smoke on the boat as “your hands are always wet” and that he would never have had a candle on the boat as “an open flame is a no no in the marine industry” (T 218.46-219.31).

The applicant denied any sexual contact with any of the complainants (T 219.33-220.6). He accepted that there was a bottle shop (or a general shop that sold alcohol) near where his boat was moored and that he would regularly stop in there but he denied ever buying Strongbow there (T 226.26).

The applicant accepted that it was possible that he might have spent the night on the boat with a child but could recall no specific occasion (T 229.32). He said that DN was never alone on the boat with him (but also that it was possible but he could not recall) (T 238.28).

The applicant accepted that he had driven to Shellharbour and Woronora Bridge with DN (T 232.13-17).

The applicant did not remember the weekend involving the pilot boat with DN and BW, after looking at the photographs constituting Ex D (T 233.26-45).

The applicant accepted that on the day his car was broken into (22 November 1993), he was in Shellharbour with DN and, possibly, MA. He said they had gone there to look at a berth for a ship (T 234.49-235.13) and he thought that he picked up DN from Wollongong to take him (T 235.33).

The applicant denied engaging in any sexual acts with RA, MA or DN.

On the fourth day of the trial, following the completion of the balance of the Crown case, the Crown Prosecutor raised with the trial judge the way in which he intended to put his case to the jury on tendency (T 212.12):

No issue was taken by the applicant’s trial counsel or the trial judge about the Crown Prosecutor’s stated position.

The Crown in closing submitted that the applicant had a tendency to be sexually attracted to young males and to befriend young males, take them fishing, supply them with cannabis and alcohol, and then act on his sexual attraction by engaging in a sexual act with them (T 270.29-38). The Crown relied on tendency reasoning both as between the various complainants and also on an ‘intra’ complainant basis (T 212). There was no opposition to the Crown’s reliance on tendency reasoning.

The Crown Prosecutor’s address took the jury through the Crown case in relation to each count on the indictment (T 240-270); then addressed the jury on the tendency case as follows (from T 270.22):

Further, in making submissions about the applicant’s case, presented through his record of interview with police relating to DN’s allegations and his evidence in the trial, the Crown Prosecutor said (from T 272.20):

Following the Crown Prosecutor’s address, the applicant’s trial counsel raised no complaint about the way the Crown put its tendency case.

The applicant’s trial counsel’s address to the jury was as follows (T 273.14-274.1):

The trial judge commenced his directions to the jury immediately following the respective addresses of counsel. The trial judge directed the jury that ranges of dates particularised by the Crown on the indictment was a matter that the Crown was required to prove beyond reasonable doubt (SU 3):

In relation to the Crown’s tendency case, the trial judge said (SU 7-8):

The following day, during the balance of the trial judge’s directions, the trial judge gave the jury a written direction about tendency. The written direction was in the following terms (MFI 25):

After providing the jury with the above written direction, the trial judge said (SU 11-12):

The applicant’s trial counsel did not ask for any further direction or re-direction.

The applicant notes that at no time did the applicant’s trial counsel ask the trial judge to give any specific direction other than a “motive to lie” direction; in particular, that he did not ask the trial judge to direct the jury that the applicant was at a significant forensic disadvantage because of delay (see s 165B of the Evidence Act). The applicant points out that the trial judge did not ask counsel in advance of his summing-up whether such a warning was requested. It is noted that the applicant’s trial counsel also made no application for any verdicts by direction but supported the Crown’s position that count 40 should be a directed verdict.

It is contended by the applicant that the prosecution of the offences alleged by each of counts 20 (part of incident M4), 23 and 24 (incident M5) (relating to MA) was statute-barred pursuant to s 78T of the Crimes Act (which provisions are now repealed) and the prosecution of each of counts 43, 44 and 45 (incident D8, relating to DN) was statute-barred pursuant to s 78 of the Crimes Act. As noted, ground 1 is conceded by the Crown in relation to counts 20, 23 and 24 because the repeal of s 78T was not retrospective. The Court should act on the Crown concession and quash the convictions on those counts for that reason.

It is only therefore necessary to consider this ground in relation to counts 43, 44 and 45 (incident D8 – see above from [161]). The Crown maintains that counts 43, 44 and 45 were not statute-barred because the repeal of s 78 was made retrospective by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).

Counts 43 to 45 alleged that, between 1 January 1992 and 31 December 1993, the applicant had sexual intercourse with DN, a child then under above the age of 10 years and under the age of 16 years (namely 14 or 15 years), contrary to s 66C(1) of the Crimes Act. This was on the basis of DN’s evidence that the incident giving rise to counts 43, 44 and 45 occurred no longer than 12 months after the BW incident (T 118) and when the applicant was living at the Kurrajong Street house (T 118-119). DN’s evidence was that the BW incident occurred when DN was in year 8, in 1992 (T 113; T 206) (T 263). As noted above, RMS records showed that the Kurrajong Street house was the applicant’s registered address from 25 March 1991 to 5 November 1992. The Crown says that this pointed to this incident most likely occurring in 1992, after the BW incident (T 263). However, the particulars extended to the end of 1993. During the time frame averred, DN was 13 to 15 years old. It is noted that if the incident occurred while the applicant was still living in Kurrajong Street, then it must have occurred before 5 November 1992, before DN turned 14.

The prosecution of each of these counts commenced during the first half of 2018. On 12 July 2018, each of the counts the subject of challenge under this ground was before the Local Court by way of a Court Attendance Notice.

Relevantly, until 2 May 1992, s 78T of the Crimes Act provided a limitation period in respect of the prosecution for an offence contrary to s 78K that:

In the period from 23 March 1986 until 2 May 1992, s 78 of the Crimes Act provided a limitation defence in relation to a prosecution for an offence contrary to s 66C, namely that:

The prosecution of counts 43 to 45 was commenced well after the expiration of 12 months from the time of those alleged offences; and it is noted that, from 24 November 1993, DN was over the age of 14 years.

Following the High Court’s decision in Saraswati v R (1991) 172 CLR 1; [1991] HCA 21 (in which Deane J said at 6 that it was “all but impossible to discern any coherent legislative purpose underlying s 78”), the 12-month time limit for commencing prosecutions for offences contrary to s 78K and s 66C(1) (and other offence provisions of the Crimes Act) was repealed by Sch 1 of the Criminal Legislation (Amendment) Act 1992 (NSW) with effect from 3 May 1992.

Each of the counts the subject of challenge under Ground 1 (and, relevantly, counts 43 to 45) particularised a range of dates that extended to before the repeal on 3 May 1992 of the relevant 12 month time limit. The applicant submits that in these circumstances, the prosecution of each of the counts the subject of challenge was caught by the relevant statutory limitation.

Following recommendations made by the Royal Commission into Institutional Responses to Child Sexual Assault (the Royal Commission), on 1 December 2018, Sch 1 [62] of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 made retrospective from that date the repeal of s 78 of the Criminal Legislation (Amendment) Act 1992. Clause 82, inserted into Sch 11 to the Crimes Act, provided that:

The 2018 amendments did not include any corresponding provision in respect of the retrospective operation of the repeal of the s 78T limitation period. Given this, the applicant submits that the presumption against retrospectivity continues to apply to the repeal of s 78T (citing Rodway v R (1990) 169 CLR 515; [1990] HCA 19 (Rodway) at 518 (per Mason CJ, Toohey, Gaudron and McHugh JJ). That submission is accepted by the Crown – hence its concession that counts 20, 23 and 24 were statute-barred at the relevant time and remain so.

In relation to counts 43, 44 and 45, the applicant accepts that, from 1 December 2018, the presumption against retrospectivity in relation to the repeal of s 78 was rebutted clearly and unambiguously by the legislature. However, it is submitted that, by 1 December 2018, the prosecution of counts 43, 44 and 45 had already been commenced (contrary to s 78); i.e., at a point in time when it was still presumed that the repeal of s 78 was not intended to apply retrospectively to offences allegedly committed before its repeal on 3 May 1992. Thus, it is submitted that, when proceedings were commenced in respect of counts 43, 44 and 45, they remained statute-barred.

It is noted that, in addition to counts 43 to 45, count 5 on the indictment also charged an offence contrary to s 66C(1) of the Crimes Act alleged to have occurred wholly before 3 May 1992. However, the applicant says that it seems that proceedings in respect of count 5 were commenced ex officio after 1 December 2018.

Thus, the applicant submits that the applicant’s convictions for each of counts 20, 23, 24, 43, 44 and 45 should be quashed. Reference is made to Stephens v R [2021] NSWCCA 152 where Simpson AJA (with whom Davies and Button JJ agreed) allowed an appeal against conviction in relation to a discrete count on a multiple count indictment charged pursuant to s 78K of the Crimes Act because the prosecution was commenced out of time (see the judgment of Simpson AJA at [60]-[65]).

The Crown accepts that the repeal on 3 May 1992 of ss 78 and 78T (by the Criminal Legislation (Amendment) Act 1992 (NSW)) did not have retrospective effect (citing Rodway) and that a consequence of this is that where a person had accrued the benefit of the limitation prior to the enactment of the Criminal Legislation (Amendment) Act 1992 (NSW) (because 12 months had elapsed since the offending without a charge having been laid), the statutory limitation period continued to operate.

However, the Crown says that this is affected by the passage of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The Crown says that it is unclear why the legislature made the repeal of s 78 retrospective, without making similar provision for s 78T (proffering the suggestion that it may have been on account of the qualification that the Royal Commission placed on its recommendation to remove all limitation periods and remaining immunities, namely that this be done “in a manner that does not revive any sexual offences that are no longer in keeping with community standards”) but in any event the Crown accepts that the consequence of the legislature’s failure to make the repeal of s 78T retrospective is that the immunity that arose from prosecution following the elapse of 12 months after the offending survived the repeal of s 78T; and therefore that where the particulars of a s 78K charge fall within the terms of s 78T, that charge is now statute-barred. However, the Crown says that there is no impediment to bringing s 66C charges where the particulars fall within the terms of s 78.

As the Crown accepts that counts 20, 23 and 24 were statute-barred, it accepts that the convictions on those counts should be quashed (as occurred in Stephens v R).

As for counts 43, 44 and 45, it is noted that the particulars as to time averred for counts 43, 44 and 45 were between 1 January 1992 and 31 December 1993. The Crown accepts that the particulars averred for counts 43, 44 and 45 were caught by s 78. However, it is submitted that, as far as those counts are concerned, cl 82 of Sch 11 of the Crimes Act applied to enable their prosecution (notwithstanding that the applicant had been charged prior to the enactment of the relevant clause, which commenced on 1 December 2018).

It is noted that Sch 11 to the Crimes Act is entitled “Savings, transitional and other provisions” and contains savings and transitional provisions arising out of the enactment of various amending Acts. Part 35 deals with the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The amending Act contains no other transitional provisions. Clause 82 abolished s 78 “as if that section had never been enacted”. The Crown notes (and it is not disputed) that when the applicant’s trial commenced in June 2019, that provision was in force. It is submitted that the fact that the applicant had been charged prior to the commencement of the provision did not limit its unambiguous application.

For completeness, the Crown accepts that the fact that DN, on the evidence, must in fact have been younger than 14, would not prevent s 78 from applying (referring to Stephens v R at [62]).

In Rodway, the High Court considered the effect of the repeal of s 136(1) of the Criminal Code (Tas) and the enactment of a new s 136(1), both of which occurred after the applicant had been charged with offences to which s 136 applied but before his trial commenced. The High Court held that the new provision applied to the applicant’s trial on the basis that the amendment did not affect existing rights and obligations but, rather, operated to affect the way in which rights fell to be determined at trial, and thus did not fall within the presumption against retrospective operation of a statute (at common law or under statute). Relevantly, the High Court said (at 518):

The High Court went on to say (at 519):

Nevertheless, as the High Court also made clear, each of the presumption against retrospectivity of a penal statute and the principle of fairness is subject to the legislative intention of Parliament. Where the legislature manifests an intention that a statute operate retrospectively, effect will be given to that intention (see Siganto v R (1998) 194 CLR 656; [1998] HCA 74 (Siganto) at 662; see also R v MJR [2002] NSWCCA 129 at [26] per Spigelman CJ, with whom Newman AJ and Grove J agreed; Xerri v R [2021] NSWCCA 268 at [80]-[82] per Price J, with whom Bell P, as his Honour then was, and Hamill J agreed).

Relevantly, in Siganto, it was argued that fairness and “equal justice” required that the appellant should not be punished more severely than he would have been had he been sentenced before the commencement of the relevant legislation. In response to that argument, the High Court said (at [17]):

More broadly, Adam J in Doro v Victorian Railways Commissioners [1960] VR 84 at 86 made the following observations as to when the presumption is rebutted:

It may be accepted that the repeal of s 78 is a matter of substantive rights rather than mere procedure (i.e., it affects the right of an accused to be free of an otherwise statute-barred claim) and thus attracts the presumption against retrospectivity. Nevertheless, a consideration of the language employed in cl 82 makes clear the retrospective legislative intent of the new provision and unambiguously displaces the presumption. The words “as if that section had never been enacted” can only mean that the effect of the repeal of s 78 is that the legislation must be treated as if that provision had never been included in the principal Act (i.e., as if the limitation was never there – in which case there would have been no substantive right not to be prosecuted for the relevant offence). Further, the words “that section cannot be relied on to prevent any prosecution for an offence” are of wide ambit. There is no reason to interpret those words as not applying to a prosecution commenced by the laying of charges prior to the introduction of the amending Act in December 2018.

In this regard, the Explanatory Memorandum to the Amending Act makes clear that:

Moreover, there would seem to be little reason in principle for giving much weight to the presumption against retrospectivity, in circumstances where the NSW Government has clearly articulated an intention to address the shortcomings identified by the Royal Commission into Institutional Responses to Child Sexual Abuse and, in particular, to protect the interests of victims in obtaining justice (see New legislation to strengthen child sexual abuse laws, NSW Government Factsheet (June 2018); see also the Attorney-General’s second reading speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (6 June 2018)).

Accordingly, in my opinion, the submission that the s 66C offences remained statute-barred by reason of the fact that prosecution occurred between 1993 and 2018 must fail; and Ground 1 is not made good in relation to counts 43-45. (As noted above, the Crown’s concession in relation to the convictions on counts 20, 23 and 24 should be accepted and those convictions should be quashed).

There is no dispute as to the applicable principles where it is contended that a verdict is unreasonable.

The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (MFA v R); SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA v R) at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was).

In Libke v R (2007) 230 CLR 599; [2007] HCA 30 the High Court expressed the test as being whether it was “open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt” (emphasis in original).

More recently, in Pell v R (2020) 268 CLR 123; [2020] HCA 12 at [37]-[39] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ, the High Court said that these tests are essentially the same (at [45]).

The appellate court must undertake its own independent assessment of the evidence (M v R; SKA v R), though having regard to “the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and that the jury had the benefit of seeing and hearing the witnesses give evidence (M v R at 493 per Mason CJ, Deane, Dawson and Toohey JJ ; MFA v R at [49] per McHugh, Gummow and Kirby JJ).

The Crown notes that the High Court has emphasised the deference that must be accorded to the jury’s verdict, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] per French CJ, Kiefel J, as her Honour then was, Bell, Keane and Gordon JJ).

The applicant contends that the following convictions were not supported by the evidence and are unreasonable:

The Crown groups the applicant’s contentions under Ground 2 into four broad categories: first, a contention that the evidence did not establish that the offending happened within the dates averred on the indictment (counts 1, 2 and 3); second, a contention that, where evidence was elicited only after showing a witness their statement following a grant of leave under s 38 of the Evidence Act, the jury must have entertained a doubt about that evidence (counts 8, 10, 12, 22, 38, 44, 55); third, a contention that the evidence of DN and MA was incapable of being reconciled, leading to the conclusion that the evidence of each relating to an incident or incidents involving the other was incapable of acceptance beyond a reasonable doubt (counts 20, 21, 22, 51, 52, 53, 54, 55, 56, 57); and, fourth, a contention that the evidence was insufficiently particular to found the charges (counts 34, 35, 36, 37, 46, 47, 56).

As a general matter, as to the contention by the applicant that (where evidence was elicited after the witness’ memory was refreshed by reference to his earlier police statement) the jury was bound to have a doubt (pointing to the fact that the statements used to refresh memory were made many years after the events in question), the Crown says that it was open to the jury to accept that what the complainants had put in their statements, made without the pressure of being in the witness box, was reliable. In this regard, it is submitted that the jury was entitled to bring into account the context evidence given by each of the complainants. The Crown emphasises that all three complainants had been abused on multiple occasions over many years and it was open to the jury to accept that in those circumstances, it was unsurprising that they might suffer memory blanks or become confused when giving evidence.

Moreover, the Crown submits that all of the counts that were elicited in cross-examination occurred in circumstances of a single incident involving multiple sexual acts. It is submitted that the jury could readily have accepted that such circumstances were apt to cause a witness to forget a single act when faced with the pressure of giving evidence.

The Crown says that the fact that the cross-examination proceeded in the manner directed by his Honour (that is, by showing the witness their statement in order to refresh their memory) is also relevant since it meant that the evidence relating to each count eventually fell from the witness, rather than being read out or led.

It is noted that, where applicable, the Crown Prosecutor drew to the jury’s attention the fact that the evidence had been elicited in this manner and raised it as a matter for the jury to take into account (for example at T 246). It is also noted that his Honour repeated in his summing up that this was a matter that the jury should take into account (SU 2). The Crown says that ultimately, what the jury made of it was a matter for the jury and that it cannot be said that the jury were bound to have a doubt.

As to the complaint made by the applicant about particularity, and the submission by the applicant that some of the evidence given by DN was insufficiently particular to make out a charge (referring to S v R (1989) 168 CLR 266; [1989] HCA 66 and RD (a pseudonym) v R [2021] NSWCCA 94 (RD v R)), the Crown says that, while DN occasionally used the imperfect tense (or the language of a repeated event), it is necessary to consider the evidence that DN gave of each incident “as a whole” (citing RD at [22]; [26]; [30] per Macfarlan JA); and that the fact that a witness lapses into the use of the word “would” on occasion does not necessarily mean that their evidence about an incident, read as a whole, is insufficiently particular (citing RD at [23]; [28]; [31]; [46] per Macfarlan JA). The Crown says that, read as a whole, it is clear that on each occasion DN was describing a specific incident, as opposed to offering “generalised assertions” (cf RD at [51]; [20] per Macfarlan JA).

I will deal with the counts the subject of Ground 2 in the order in which they were addressed by Counsel for the applicant.

The applicant points out that the Crown alleged that the first incident (R1), occurred some time between 1 February 1987 and 31 March 1988, which (on the Crown case) meant that the complainant RA was either in year 9 at school or had left school at the time that it occurred (cf, RA’s evidence that it was probably year 7 or year 8 when the applicant’s son told him about the marijuana plants – T 35.10).

The applicant notes that the Crown case was that incident R1 was “the first time” the applicant ever took RA fishing and that this was the first occasion the applicant committed a sexual act upon him. RA said that following this “first time” it was “the same process on and on … his boat, on water, at his place, in the car” (T 43).

It is noted that RA said that the “first time” that he was asked by the applicant to go fishing was on or about the “first time I met him” which he said was when he was either in year 7 or year 8; that RA said that he was either 13 or 14 years old. It is not in dispute that RA turned 13 on 29 December 1985 and 14 on 29 December 1986. When asked directly how old he was “at that stage that this was happening” (a reference in context to R1), RA said he was “about 14”.

The applicant argues that it is difficult to determine whether “the first time” RA went fishing with the applicant was on or after 1 February 1987 (when he had turned 14 and was in year 9 at school), or whether “the first time” he went fishing with the applicant was before that date (when he was 13 and in year 8). The applicant submits that it is inherently unlikely that, after initially meeting the applicant some time before 1 February 1987 (on RA’s account that this was in year 8 or year 9), the applicant would not have taken RA fishing soon thereafter.

The applicant argues that the evidence adduced in the Crown case in relation to when incident R1 occurred left open the reasonable possibility that the incident did not occur between the dates alleged on the indictment. It is noted that, unlike in relation to other counts on the indictment (see for example count 16), the Crown Prosecutor made no application to amend the dates alleged in respect of counts 1, 2 or 3.

Emphasis is placed on the fact that, in closing address, the Crown Prosecutor accepted that each time frame alleged on the indictment was “something the Crown has to prove” (T 241.8); and that the Crown raised no complaint or sought any further direction when the trial judge directed the jury both orally and by written direction (see MFI 22) that in relation to counts 1, 2 and 3 (like all other counts) the jury needed to be satisfied beyond reasonable doubt that the incident R1 occurred between the dates alleged.

The applicant accepts that, in addressing the jury specifically in respect of RA’s evidence in support of counts 1, 2 and 3, the Crown Prosecutor highlighted RA’s evidence to the effect that he thought he was “about 14” at the time. However, the applicant complains that the Crown did not address other evidence given by RA which the applicant maintains tended to raise the distinct possibility that “the first time” he went fishing with the applicant was before then, and possibly well before then.

For this reason, it is submitted that there is a reasonable doubt about whether the incident giving rise to counts 1 to 3 occurred outside the dates averred on the indictment and therefore that the applicant’s convictions in respect of counts 1, 2 and 3 should be quashed.

The Crown says that the dates on the indictment (between 1 February 1987 and 31 March 1988) were consistent with RA’s evidence that he was “about 14” when the incident occurred and also that the sexual contact began before he left school in 1989 (T 43). It is noted that RA turned 14 on 29 December 1986 and therefore that the time period averred covered most of the year that he was 14 but extended into his fifteenth year.

Insofar as the applicant submits that, on RA’s evidence, the incident giving rise to these counts could have occurred as far back as 29 December 1985 (when RA turned 13), the Crown says that it is not reasonably possible that RA could have met the applicant before 1987 pointing to the RMS records that record that the Sunbury Street property did not become the applicant’s registered address until 10 April 1987 (Ex 1).

The Crown says that commencing the date at February allowed for the possibility of some delay between the applicant moving into the house and registering his new address (as to which see T 201-2). However, it is said that that time could be expected to be measured in weeks or some short months. It is said that RA’s father’s recollection that the applicant had been living there for “a couple of years” prior to 1988 cannot be correct in light of the RMS records. Thus, the Crown submits that the RMS records reveal that it is not reasonably possible that counts 1 to 3 occurred prior to 1 February 1987. (The applicant’s response to this submission is that the RMS records in evidence did not go back before 10 April 1987; and says that an RMS record is not a definitive answer to when the applicant was living in the Sunbury Street property.)

Moreover, even if it were possible that the incident occurred prior to 1 February 1987, and notwithstanding what his Honour told the jury (at SU 3), the Crown says that this was not a case where time was of the essence (referring to R v Dossi (1918) 13 Cr App R 158 (R v Dossi)). As to the submission by the Crown that this was not a case where time was of the essence, the applicant argues that the case was conducted by the Crown on the basis that the Crown accepted the jury must be satisfied beyond reasonable doubt that the incident R1 occurred during the times averred in the indictment and should be bound by its conduct of the case on that basis (see T 3 on the appeal).

Section 16(1)(g) of the Criminal Procedure Act 1986 (NSW) provides that an indictment is not void for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, “except where time is an essential ingredient”. This provision is consistent with the common law rule as articulated by Atkin J in R v Dossi:

I have concluded that time was made an essential ingredient in respect of counts 1,2 and 3 as a result of the way in which the Crown conducted the trial. In the Crown Prosecutor’s closing address, it was said that the time frame on the indictment and the evidence about when certain things happened was a “key thing” and the Crown Prosecutor noted that “his Honour said that’s something the Crown has to prove” (T 241.6-9; see also T 241.15ff). This conduct is consistent with the fact that the Crown Prosecutor did not object to the trial judge’s summing up, in which the timing was said to be an essential element of the offence (see SU p 3). I accept the applicant’s submission that the Crown cannot resile from this course of conduct and is bound by it. In this respect, the observations of Ostler J (with whom Reed, Adams and Smith JJ agreed) at 440 in R v Dean [1932] NZLR 753 are apposite:

Similarly, in R v Pfitzner (1976) 15 SASR 171 Bray CJ observed at 185-186 that “it may not matter if the date [upon which a controversy turns] is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v Butcher. But obviously if a man is charged with committing an offence on a Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case”.

It follows that if the jury must, as distinct from might, have entertained a doubt as to whether the offence was committed between the dates alleged by the prosecution, the verdicts on counts 1, 2 and 3 are unreasonable.

In respect of the relevant time line, there are only a limited number of dates that can be determined with certainty: the Blue and White Range Rover that RA recalled when he was first approached by the applicant was first registered to the applicant in November 1985; RA turned 13 in late December 1985; the school records place RA in year 9 in 1987 (and hence in years 7 and 8 in 1985 and 1986, respectively); and the earliest date at which there is a record of the applicant living at the Sunbury Street address (albeit that this is not determinative) is the RMS records that commence from 10 April 1987.

The applicant argues that the most likely reasonable possibility is that the R1 incident occurred (if at all) in the 1986 calendar year and hence outside the period averred on the indictment (see T 5.25 on the appeal).

The Crown says that the critical evidence is Exhibit 1 (the RMS record) coupled with RA’s evidence that he was “about 14”, noting that RA was 14 for most of 1987. The language “about 14”, however, permits of uncertainty.

Does that evidence exclude a reasonable possibility that the incident R1 occurred outside the averred period (say, as the applicant argues is the most reasonable possibility, during the 1986 calendar year) so as to give rise to a reasonable doubt that the jury should have entertained? The evidence on which the Crown relies must be considered alongside the evidence of RA that the theft of the marijuana plants was probably in year 7 or year 8 and that his first encounter with the applicant occurred when he was “only thirteen” and very small; and the uncertainty seemingly expressed by RA as to when he first started to go out on the boat (“thirteen, fourteen”).

In that context, RA’s evidence that he was “about 14” when the first sexual contact happened, admits of the possibility that he could have been 13.

RA placed the conversation with the applicant’s son about the marijuana plants, the theft of the marijuana plants and the first encounter with the applicant all occurring within a matter of days (the theft was two or three days after the conversation and the approach by the applicant a few days after that). The invitation to go on the boat and smoke dope was about a week later. RA was not sure how long after that he went out on the boat (T 36). There seems to be some scope for uncertainty as to whether the first time that RA went fishing with the applicant was on his boat or from the shore (a critical distinction because it was when the two went fishing from the shore that the first sexual contact is said to have occurred).

At T 40.15, it appears to be suggested that the first time the two went fishing was from the shore (at Bonnet Bay) but it is not wholly clear that there may not have been already some fishing from the boat (see T 40) given the answer that the result of the conversation in the first place was that RA went on the boat. If so that would suggest that even if the first approach was in the 1986 calendar year the first sexual contact was some time later; and it should also be noted that there may have been some time when the two smoked cannabis at the applicant’s house before the fishing trips started.

In any event, given the uncertainty (and vagueness) of the evidence from the witnesses as to when the applicant’s family moved into the same street in Sutherland (RA’s father placing this around 1986; the applicant’s son around 1985 or 1986 when he was 10,11 or 12) it would be open to the jury to place greater reliance on the RMS record as the most reliable objective indication of when the applicant commenced living in the suburb – i.e., that it was in 1987 and not 1986.

However, the difficulty I have is that to my mind this does not exclude a reasonable doubt as to whether it was in 1986 nor 1987. While I do not accept the applicant’s submission that it is most likely that it was 1986, I consider that there must have been a reasonable doubt as to the timing of this event; and therefore since the Crown conducted the case on the basis that time was of the essence in terms of the dates on the indictment, I consider that the convictions for counts 1 to 3 should be quashed as unreasonable verdicts on the evidence and verdicts of acquittal entered on those counts.

As to counts 8 and 10, the applicant places reliance on the fact that when RA gave his account of incident R2 he referred only to the sexual acts relied on by the Crown as proof of counts 4, 5, 6, 7 and 9 (see above, these being the counts involving the incident with the insertion of a candle in RA’s anus). The applicant does not challenge as unreasonable his convictions in respect of those counts. However, the applicant does challenge on this basis the convictions for count 8 (being the allegation that the applicant had, in addition, attempted anally to penetrate him with his penis) and count 10 (being the allegation that the applicant fellated him a third time until he ejaculated).

It is noted that RA’s evidence (prior to his reference to the earlier police statement) was that the applicant only ever tried anally to penetrate him “once” and that this attempt took place “in his room in his house”; whereas incident R2 was alleged to have taken place on a boat in Gymea Bay.

The applicant says that RA’s further evidence (when cross-examined by the Crown in relation to what he had said in his police statement about the sexual acts constituting counts 8 and 10 RA) was adversely affected by the following matters.

First, that even after having read his earlier statement, RA initially effectively said that his memory of the incident had not been refreshed. Second, that the statement to which he had regard was not a contemporaneous statement (but was prepared approximately 20 years after the fact). Third, that the further evidence that RA did give as to counts 8 and 10 was directly contradicted by the evidence he had just given about the incident; and that his further evidence that the only time the applicant attempted anally to penetrate him with his penis was in a different location entirely. The applicant says that there was no suggestion that in the “20, 30 or 40 times” that the applicant said he had engaged in sexual acts with RA prior to the R2 incident had there ever been an attempt anally to penetrate him; and that this was the first allegation of that type on RA’s account.

Thus, it is submitted that the jury ought to have entertained a reasonable doubt as to proof of the applicant’s guilt in respect of counts 8 and 10.

As to counts 8 and 10, the Crown points to the detail given by RA in his further evidence as to the applicant’s attempt at penile/anal penetration (count 8); and as to the oral sex (count 10) (see as extracted earlier above). It is submitted that, having regard to the detail that RA gave and the fact that he gave the evidence from his memory rather than reading out his statement, it was open to the jury to accept that this was a genuine memory.

Further, it is noted that RA had already indicated in his evidence in chief that there had been an attempt at anal sex (see at T 44.15-20), only he said that it had occurred at the house. It is submitted that it was open to the jury to find that RA had misremembered only the location of the act (and that this was a relatively minor detail).

I do not consider that the jury ought to have entertained a reasonable doubt as to counts 8 and 10 owing to the manner in which this evidence was elicited. Insofar as the applicant points to the inconsistency in RA’s answers as to whether his memory had been refreshed and then whether it had been helped by reference to the earlier police statement, as I have explained above I consider that it was open to the jury to treat this as explicable by reference to the different way in which the questions were framed (noting that RA was a witness who had suffered a brain injury in an earlier car accident and does not appear to have been particularly articulate in his answers in the witness box).

As to the fact that the police statement was itself many years after the event, that goes to the weight that the jury was able to attach to the evidence based on his memory having thereby been assisted – and that was a matter about which the trial judge had given directions to the jury.

Particularly relevant is the detail that RA provided in relation to the attempted anal penetration (and, of course, the jury had the advantage of seeing and hearing that evidence being given by RA).

As to the fact that the location of the attempted anal penetration (the incident on the boat) was inconsistent with the earlier evidence (I think it was in his room in his house – T 44.15), the latter was in itself not firm evidence of location. I consider that it was open to the jury to accept that RA had misremembered the location but that there had been an attempt at anal penetration in this incident.

As to the third act of fellatio, I accept the submission for the Crown that in the context of multiple acts of sexual offending, it was open to the jury to conclude that RA had simply forgotten in the stress of giving evidence in court the exact sequence of events on this occasion or how many times there had been acts of fellatio.

I find that Ground 2 is not made good in relation to counts 8 and 10.

As to count 12, the applicant points out that when RA was initially asked whether he had ever engaged in anal intercourse with the applicant – see above and at T 48.12 (as distinct from his evidence of an attempt on one occasion by the applicant to engage in anal intercourse with him), RA’s evidence was that he did not think this occurred and that he had no recollection of it occurring. The applicant notes that RA’s evidence in this respect stands in stark contrast to what he later said after being shown his police statement by the Crown, when RA gave further evidence by reference to his police statement of an occasion in the applicant’s home when he said he did engage in anal intercourse with the applicant.

The applicant says that RA’s evidence in this respect suffers from the same deficiencies identified in respect of counts 8 and 10 and that the jury ought to have entertained a reasonable doubt as to proof of the applicant’s guilt in respect of count 12.

The Crown points to the evidence as to count 12 that was elicited under cross-examination (T 57) (extracted above) and emphasises that in the course of that further evidence RA gave a detailed account (without reading out his statement or being led) including with a physical demonstration of how he said the applicant reached behind and put his (RA’s) penis in the applicant’s anus.

Further, the Crown points to RA’s evidence that he had an actual memory “now” in court as to that event. In these circumstances, the Crown says that it was open to the jury to accept this evidence as being evidence of a genuine memory.

Again, this seems to me to be ultimately a credibility issue for the jury to determine; particularly the significance to be attributed to the physical demonstration. I do not consider that the verdict on this count was unreasonable.

Turning then to the unreasonable verdict challenges to the convictions on counts relating to MA, the only counts are counts 20-22 relating to incident M4.

As noted above, these counts related to the first occasion that MA described when he said that he and the applicant picked up DN from Wollongong and drove into the Royal National Park. The sexual acts alleged by these counts were MA inserting his penis into the applicant’s anus (count 20), the applicant inciting MA to insert his penis into DN’s anus (count 21) and the applicant inserting a finger into MA’s anus (count 22).

As to these counts, the issue principally raised by the applicant is that MA’s evidence was contradicted by DN’s evidence.

It will be recalled that, as set out earlier, on MA’s account, this incident occurred in either 1990 or during 1991 (when he was in around year 8 or year 9) whereas the Crown case in relation to DN was that the first time that he engaged in sexual acts with the applicant together with MA was on 22 November 1993 at Bass Point in Shellharbour (on the day that the applicant’s car was damaged). The date on which the applicant’s car was damaged was able to be ascertained from the police report (and this was the basis on which the indictment specified that particular date).

Both MA and DN gave evidence as to what occurred on the day that the applicant’s car was damaged at Bass Point but there are significant differences in their accounts.

MA said that this was the second occasion on which he and DN had engaged in sexual acts with the applicant in the national park (the first being the subject of counts 20 and 21); and described that day as “oral sex day”; but that the three were disturbed when someone “came along” and there was panic and the sexual activity then stopped. On MA’s account, when the three returned to the applicant’s car it had been damaged. It is noted that in his evidence MA clearly distinguished between these two occasions and said the two occasions were years apart. MA did not suggest that there was anal sex on the second of those occasions (that being the day on which the applicant’s car was damaged).

DN’s evidence was that, on the day the applicant’s car was damaged, in addition to oral sex, the applicant had anal intercourse with him and ejaculated inside him, that the applicant directed MA to have anal intercourse with him and ejaculated inside him, and that the applicant fellated DN until he ejaculated. DN did not say that the three were disturbed.

Significantly, DN gave evidence of only having been in the bush with the applicant and MA on one occasion. On DN’s account, he had been introduced to MA before this incident (i.e., incident D12 in the case relating to DN) but only briefly. DN knew that MA was a friend of the applicant’s son but his evidence was that he had not previously engaged in sexual activity with him or in his presence. DN gave evidence of a subsequent occasion at the applicant’s home in Bangor when he said MA was also present (but MA did not give evidence of any such occasion). It is noted that DN said that:

On the indictment, counts 20, 21 and 22 (i.e., those comprising M4) were alleged to have taken place between 1 January 1991 and 31 December 1993, but MA’s evidence was that the incident occurred in either 1990 or 1991 (and thus was before the day the applicant’s car was damaged); whereas on DN’s account, there was no such first occasion and DN’s account of the sequence sexual acts on what he said was the first occasion (i.e., the day the applicant’s car was damaged) were different to those alleged by MA the subject of counts 20, 21 and 22.

A second issue that the applicant says further affects the sufficiency of proof of count 22 is that when MA gave an account of the incident he said that the applicant had him insert his penis into the applicant’s anus, then into DN’s anus and that he (MA) ejaculated in DN’s anus; and, when asked by the Crown whether there was any more sexual contact after he ejaculated in DN, MA said “Not on that - no, I think that was about it by then … it came to an end after that, I think. Yeah, come to an end”. However, after being referred to his police statement dated 19 February 2017, MA said that, after he ejaculated, the applicant put a finger in his anus, that it was painful, that he screamed and yelled; and that this was what brought the incident to a halt.

The applicant again points out that the police statement to which MA was asked to have regard was not a contemporaneous statement; rather, it was prepared more than 25 years after the event; and it is noted that MA’s further evidence given under cross-examination was directly contradicted by the evidence he had only just given about the particular incident.

It is further noted that on MA’s account, this was also the only time he described such an act being committed upon him; and, on his account in cross-examination, this was accompanied by him screaming which was what brought the incident to a close. The applicant submits that MA’s failure to give evidence about this act during his evidence initially and without prompting, adversely affected his reliability in relation to this count (count 22).

The Crown points to the further evidence that MA gave after being shown his statement, which supported count 22, (at T 87-88) (see as extracted earlier).

The Crown emphasises that this evidence was elicited from MA himself (not by MA reading the statement or being led); and says that it was detailed and included a memory of MA’s violent reaction to feeling the applicant’s finger being inserted into his anus. The Crown argues that it was open to the jury to accept this evidence.

As to the inconsistency between DN’s and MA’s evidence of an incident or incidents involving the other, the Crown accepts (as could hardly be denied) that their evidence is not easily reconciled. It is noted that the Crown Prosecutor suggested to the jury in closing that “one of the biggest tasks for you as finders of the fact” would be “working out what happened between [MA] and [DN]” (T 253).

The Crown accepts that DN did not corroborate MA as to the incident the subject of counts 20, 21 and 22. However, the Crown submits that it was open to the jury to assess their evidence in light of the context evidence given by each of them, noting that (on their evidence) both DN and MA were abused on multiple and regular occasions over a protracted period of time, particularly DN. In that context, the Crown submits that it was open to the jury to accept that DN had forgotten about the incident giving rise to counts 20, 21 and 22.

The difficulty in reconciling the evidence of MA and DN as to the incident (or incidents) in the National Park is acute (as the Crown appears fairly to acknowledge); and relevantly both versions cannot be correct but the jury convicted on both the counts in relation to incident M4 and the counts in relation to incident D12. In other words, if the jury accepted MA’s account in relation to the two incidents, it is difficult to see how they could consistently have convicted on DN’s inconsistent account of what happened on the occasion of the damaged car (and vice versa).

DN recalled only one occasion when he and MA were taken to the Royal National Park by the applicant (that occasion being when the car was damaged in 1993). MA accepted that he was there on that occasion but he says that this was the second occasion on which the three went to the national park. Even if the jury simply reasoned that DN had forgotten the earlier occasion, that does not assist in reconciling the different accounts of what occurred in 1993. Moreover, DN’s account of what occurred in 1993 (anal sex) is inconsistent with MA’s evidence that it was oral sex day; and with MA’s evidence that, by 1991, the abuse by the applicant of him had ceased. By 1991, MA would have been 17 years old.

Certainly, both MA and DN gave evidence to the effect that there was an occasion on which the applicant incited MA anally to penetrate DN; and that MA did so (an event that one would think both MA and DN would not readily have forgotten, particularly since they did not know each other well – at whatever time the incident occurred). It would be understandable if there were some gaps in recollection of particular incidents (especially where on DN’s evidence there were multiple such events). However, the anal sex incidents involving MA and DN were hardly part of the run of the mill “as usual” process that was described by the various complainants. Even accepting that DN gave evidence of many occasions of anal penetration, he did not give evidence of multiple occasions involving MA (indeed he only gave evidence of one occasion when MA was said to have participated – and there was reason to believe that this occasion would have stood out in DN’s memory because it coincided with the damage to the applicant’s car).

I am left to conclude that although the jury could have had no reasonable doubt that an incident involving anal penetration by MA of DN (at the applicant’s incitement) did indeed occur, they ought to have had a reasonable doubt as to when it occurred; and, if they accepted that it occurred in 1993 (which is a date within the dates on the indictment for counts 20 to 22), then it should have cast doubt on MA’s account of the earlier incident the subject of counts 20 to 22 (and vice versa).

Ultimately, having regard to all of the evidence (as extracted above) the inconsistency between the two accounts must surely have led to a reasonable doubt as to the applicant’s guilt in relation to counts 20 to 22 as charged (and, conversely, as to the applicant’s guilt in relation to counts 51 to 53 as charged). Thus, I have concluded that the convictions for counts 21 to 22 should be set aside as unreasonable verdicts (the conviction for count 20 is already to be quashed as it was statute-barred).

It is thus not necessary to consider the second issue raised by the applicant on the challenge to count 22 (based on it having been elicited only after reference to his police statement). Had it been necessary, I would have reached the same conclusion as above in relation to the similar issue on counts 8 and 10. This was a matter for weight for the jury.

Turning then to the challenges to the convictions on counts relating to DN, I note that there is a submission in relation to a number of these counts as to the generalised nature in which DN gave his evidence in support of a number of the grounds (to which the Crown has responded as noted already).

The applicant’s submission in relation to these two counts goes to the generalised nature of the evidence relied upon in support of these grounds, it being described as a particularity point consistent with the decision in RD v R (see below).

The applicant notes that DN’s evidence in respect of counts 34 and 35 was prefaced by him saying that, during 1991, there was sexual contact with the applicant on “numerous” occasions either while fishing, at the applicant’s home or when the applicant would drive him somewhere. The applicant points out that DN’s evidence was not that the applicant took him to the national park on one single occasion but that DN said that one of the places the applicant drove him first was the “national park” and that DN’s evidence was to the effect that “we’d go to the national park” and that he went to the national park with the applicant on “numerous” occasions. It is said that DN described the “general routine” of what “would” occur on these occasions, including the applicant “having his hands on my penis … The oral sex and then him, you know, having anal sex with myself”.

The applicant emphasises the following aspects (as italicised below) of the evidence given by DN about the incident which was the subject of counts 34 and 35 (DN having said that there were times when the applicant took him to a particular spot called Bush Rangers Point near the same sandbar from which they would fish when on the applicant’s boat; and that on these occasions the applicant produced the same picnic blanket that he had produced during the Albury incident) (see as extracted at [139] above).

First, the applicant points to the evidence that preceded the passage extracted at [139] above:

The evidence then continued as extracted at [139]. The applicant notes that, when asked what had happened after the applicant laid down the blanket, DN spoke in the following terms (with the applicant’s emphasis):

The applicant further notes that when questioned as to whether words were being said “By this point - so this time on the picnic blanket in the park”, DN said:

The applicant notes that, in RD, Macfarlan JA considered an appeal against conviction in respect of several historic sexual offence allegations in a case where the complainant’s evidence included both generalised assertions in respect of some counts and evidence sufficiently particular to prove other counts on the indictment, and where the complainant had frequently used the word “would”. Macfarlan JA there referred to R v AM (unreported, 2 April 1998, Gleeson CJ, Smart and Dowd JJ); Wade v R [2018] VSCA 304; and KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [14], and said that, in assessing whether it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt of any particular charge, evidence relied upon as proof of that charge needed “to have been specific to the particular charge[s] and not merely … “generalised assertions”” (at [14]). It is noted that Macfarlan JA (with whom Walton J agreed) and Hamill J in a separate judgment proceeded on the basis that the resolution of whether the evidence in support of a charge was sufficiently particular in the circumstances of that case turned upon a close examination of the evidence.

The applicant submits that in the present case the jury ought to have entertained a reasonable doubt about the applicant’s guilt on counts 34 and 35 having regard to the generalised nature of the evidence relied on in support of these counts. It is said that DN’s generalised evidence that acts of fellatio and anal intercourse would, and did, occur on numerous occasions in those circumstances (including when the applicant produced a picnic blanket) was insufficient proof of the specific acts alleged by these counts on a particular occasion in the Royal National Park; and that the applicant’s convictions in respect of counts 34 and 35 should be quashed for this reason.

As to counts 34 and 35, the Crown accepts that some of DN’s answers are, to some extent, generalised, but argues that it was clear overall that he was recounting a single incident (which happened to bear the same hallmarks as many other incidents). It is noted that the occasion giving rise to counts 34 and 35 was particularised by the following circumstances: it was the first time DN and the applicant went down to Bushrangers Bay (T 107); and it occurred within 4 to 6 months of the Albury incident and it was the next time that DN saw the picnic blanket after the Albury incident (T 107).

The applicant accepted in the course of submissions that, if there is something or some feature about an event that can distinguish it then use of the language “would” or “used to” or the like may not matter much. However, his submission was that there was a deficiency between the use of generalised language in the present case and the specific events the subject of the charges.

I consider that, read as a whole, DN had a tendency to phrase his answers in the way criticised by the applicant but that, at least in relation to counts 34 and 35, DN was referring to a specific incident and the tenor of his evidence was that on that particular occasion the same thing that had happened on numerous other occasions happened here. There are pointers in his evidence to indicate that this was a memory of a specific event – so, for example, that “he had me lie down then started playing with my penis” is speaking to a particular event before DN moved to the more generalised “his hand would soon be down my pants …” and the like (see count 34). Likewise the evidence in relation to count 35 includes language that is sufficiently particularised, such as his evidence that on this occasion the applicant had lubricant and a canister, from which I accept that DN was directing attention to what had happened on that specific occasion.

It is significant that DN did not concede that his memories were blurred, jumbled or blended; rather, DN gave evidence that, although it was “numerous times” and “numerous places”, “I can remember clearly some of the times where we went first” (T 106.19-21). In this regard, the case can be distinguished from Wade v R (see at [90]). Nor can it be said that DN’s evidence lacked any distinctive features, as was the case in RD v R (see at [18]-[20] per Macfarlan JA, with whom Walton and Hamill JJ agreed on this issue).

Therefore, I consider that it was open to the jury to find these counts made out beyond a reasonable doubt.

The applicant submits that the evidence in support of counts 36 and 37 suffered from the same deficiency as that in relation to counts 34 and 35. The applicant emphasises the following aspects in respect of DN’s evidence in relation to those counts (see as extracted earlier). First, the statement that:

Asked to focus on the first time that he was taken to this area, the applicant emphasises that DN’s account of what happened was:

The applicant says that DN’s evidence about what would occur on more than one occasion at or around the Woronora Bridge was not sufficient proof of the specific occasion alleged by counts 36 and 37 and the convictions in respect of counts 36 and 37 should be quashed for this reason.

Again, the Crown submits that while some of DN’s answers on this count suggestive of ongoing conduct, his evidence as to the acts giving rise to counts 36 and 37 clearly related to the single occasion which had been identified earlier in his evidence as “the first time” sexual intercourse occurred inside the car at Woronora bridge (T 108).

It is said that the evidence giving rise to count 36 unambiguously related to this single occasion, noting that in response to the question “Do you recall how he made you ejaculate on this occasion?”, DN said “Orally, with his mouth, yeah” and that the evidence as to count 37 was also unambiguous:

It is noted that DN also said that on that occasion, the applicant used lubricant from the canister (or something from the glove box) and that the car they were in was the Range Rover.

I consider that the evidence in relation to counts 36 and 37 (extracted earlier) amply shows that DN had a tendency to respond to questions in the imperfect tense (suggesting a generalised account of events) but that he was describing what occurred on that specific occasion by reference to his recollection that what had occurred was what had previously occurred on numerous other occasions (hence the phraseology employed). That is because it is clear that DN’s attention was being directed to the first occasion in this location; that he recalled it was night time and there were no other cars around; that he knew that on this occasion the applicant had performed fellatio on him to ejaculation; and that on this occasion there was anal intercourse and the applicant had used lubricant from the canister or something from the glove box. That to my mind is sufficiently particular, especially in contrast to the generalised evidence at the start that “there were times where he wouldn’t do the oral – playing with my penis part and the oral sex upon me. He’d just have anal sex with me”. The jury had the advantage of seeing and hearing DN give his evidence as to this count. It was open to them not to have a reasonable doubt about these counts.

As to the bottle incident (D6) where DN’s evidence was that at the applicant’s home in Kurrajong the applicant bent him over a table, pulled his pants down, inserted a bottle into his anus and squeezed the liquid out of it, then had anal sex with him (and that this was the “first time” that this occurred), the applicant points out that count 38 was an allegation that before any act of anal intercourse, the applicant fellated DN. The applicant points out that in his evidence initially DN did not say that an act of fellatio preceded the other acts that he described and that he said at first, under cross-examination, that he did not “believe there was any sort of activity before the bottle” but then (in contradiction to this when asked a similar question again) DN said that, before inserting the bottle, the applicant played with his penis with his hands and “performing the oral sex” and that he ejaculated.

The applicant submits that the jury should have entertained a reasonable doubt about the applicant’s guilt in respect of this count.

The Crown points to the further evidence elicited in relation to count 38 (at T 146-147) (see as extracted earlier) and says that the evidence eventually elicited in relation to this count came from the witness himself, who said that his memory had been refreshed. The Crown submits that it was open to the jury to accept his evidence that he had refreshed his memory and that the evidence that he subsequently gave was reliable.

For count 38, DN initially said “No, I don’t believe there was any sort of activity before the bottle”. After refreshing his memory from his statement, DN gave evidence that the applicant had performed oral sex on him prior to the bottle incident and anal intercourse. The initial “denial” was hardly emphatic. Bearing in mind that DN was giving evidence of events some 26 to 27 years prior, and that there were 33 counts covering 13 incidents, the jury need not have regarded the subsequent evidence as directly contradictory. Moreover, the quality of this evidence is not dissimilar to other counts where the evidence only came out after s 38 questioning.

DN’s evidence of the count 38 oral sex was given not by reading his statement. It was given after prompting but appears to have been an account derived from actual memory.

I consider that in those circumstances the jury need not have held a reasonable doubt as to the reliability of DN’s evidence on this count and I would not uphold Ground 2 in relation to the conviction on this count.

As noted earlier, Count 44 alleged an act of anal intercourse on the occasion the applicant took DN to work with him at TNT, the allegation being that during this incident DN inserted his penis into the applicant’s anus.

The applicant says that DN’s evidence raised real doubt as to whether any penetrative sexual act was achieved on this occasion (noting that the Crown did not allege an attempt in the alternative). It is noted that DN said that, after the applicant put lubricant on DN’s penis and positioned himself on all fours with DN behind him; that DN “was limp” and “wasn’t willing to do anything”; and that the applicant “soon got sick of trying to do that” and had DN lie back down on the ground on all fours so the applicant could instead insert his penis into DN’s anus. When pressed, DN suggested there may have been “slight penetration” but qualified this by saying, “but … I wasn’t doing the motions of what you do to have anal sex”.

The applicant points out that it was only after being referred to his police statement that DN gave evidence of an unequivocal act of penetrative anal intercourse, DN then saying that “It was one of those times where I was coerced into having anal sex with Pat until I ejaculated”.

The applicant submits that the jury should have entertained a reasonable doubt as to whether on this particular occasion while at work with the applicant at TNT (the only occasion DN said that sexual activity occurred in these circumstances) a penetrative act of anal intercourse the subject of count 44 occurred.

The Crown says that the only part of DN’s evidence of this incident that was clarified under cross-examination was confirmation that penetration had been achieved (noting that in his initial evidence DN said that there “might have been slight penetration” – see T 121). It is submitted that, having regard to the fact that the cross-examination only clarified evidence that had previously been given, it was open to the jury to accept that DN had forgotten that “small part” of the incident when first recounting it.

The difficulty I have with the evidence in relation to this count is not as to the clarification of what DN might have meant by “slight penetration” (because his account seems to have been that the applicant made him erect through fellatio or playing with his penis before positioning him so that DN could insert his penis in the applicant’s anus but that DN then became limp because he was not willing to perform anal sex and was not following the motions that the applicant would perform when the applicant was having anal sex with DN). Rather, the difficulty is the inconsistency between DN saying (seemingly quite emphatically) that he was limp and not doing the motions to DN then saying that he had performed anal sex to ejaculation. Those propositions are inconsistent and the jury therefore ought to have had a reasonable doubt not as to whether penetration had occurred to some extent, but as to whether DN performed anal sex to ejaculation.

Notwithstanding the above, s 61HA of the Crimes Act provides that sexual intercourse for the purposes of s 66C(1) includes “the penetration to any extent of the genitalia or anus of a person by any part of the body of another person” (my emphasis). Accordingly, the count is made out by penetration alone, regardless of whether the penetration was slight or resulted in ejaculation. It follows that it was open to the jury to accept DN’s account of slight penetration and the verdict as to count 44 is not unreasonable or unsupportable.

Again, the complaint here is that DN’s evidence in respect of counts 46 and 47 was evidence of generalised assertions of sexual misconduct on more than one occasion and was insufficient proof of the specific occasion alleged. DN’s evidence in support of these two counts is extracted above. The applicant emphasises again that DN’s evidence was framed in terms of “would perform” and “would play with my penis” and the like.

The applicant contends that the convictions in respect of counts 46 and 47 should be quashed for this reason.

Again, the Crown accepts that in DN’s account of the acts giving rise to counts 46 and 47 to some extent he used the imperfect tense. However, the Crown points out that DN also used the perfect tense, indicating that he was drawing from a recollection of a single incident, referring to the evidence that “he [the applicant] slid the front seats forward on the [Berlina] and things went pretty quick when we were in the car”. The Crown says that further questioning also clarified this was a single event referring to (T 124) where DN confirmed that “this trip” to Bass Point was after the applicant had picked him up from his house and not when he was staying in Sutherland; and that “on this occasion” he was dropped back at home again.

The evidence on these counts is perhaps the most generalised in its phraseology but I accept that DN confirmed that he was focussed on a particular occasion and this was sufficient to anchor his evidence to that occasion such that it was open to the jury (if the jury accepted DN as a credible witness in relation to these counts) to be satisfied beyond reasonable doubt as to these counts. In this respect the case is distinguishable from RD v R, where the Court considered that it was open to the Crown to ask the complainant to give evidence of what did occur rather than what would have occurred, but the Crown failed to do so (see at [18] per Macfarlan JA, with whom Walton and Hamill JJ agreed). Here, the Crown Prosecutor clearly directed DN to a particular trip to Bass Point, albeit towards the end of the complainant’s evidence on these counts, and DN affirmed that his evidence was directed to this occasion.

As to counts 51 to 53, I have already referred in some detail to the differences in the accounts of MA and DN as to the occasion on which each recall they went to the Royal National Park and the applicant’s car was damaged.

The applicant notes that this was the only occasion in which DN’s evidence was that he engaged in sexual activity with the applicant together with MA and that the Crown case was that these offences took place on 22 November 1993 (the day the applicant’s car was damaged).

As noted above, DN’s account of this event was inconsistent with MA’s account of the event that occurred on the day the applicant’s car was damaged. DN’s account of the incident was that the applicant fellated him, had anal intercourse with him to ejaculation, directed MA to have anal intercourse with him until MA ejaculated, and then DN was further fellated by the applicant to ejaculation. MA’s evidence was that on that particular occasion it was “oral sex day” but that the sexual activity had been interrupted by someone in the area and the three had returned to the car only to find the car damaged.

The applicant submits that these two accounts of the incident simply could not be reconciled and that the jury should have entertained a reasonable doubt about his guilt in respect of these counts.

The applicant also points out that count 53 was an act of masturbation (and the Crown opened on an act of masturbation to ejaculation) but that the complainant gave evidence at first of a different act (fellatio by the applicant until he, DN, ejaculated) (and after MA had had anal intercourse with him). The applicant notes that it was not until the further evidence that DN said that MA had performed oral sex on him and that the applicant proceeded to masturbate him to ejaculation.

As already noted, the Crown accepts that the evidence of MA and DN cannot easily be reconciled. The Crown points out that there were no charges on the indictment reflecting MA’s evidence of this second incident with DN; instead, MA’s evidence of this second occasion was relied upon by the Crown as broadly corroborating the evidence of DN in relation to counts 51, 52 and 53 (T 267.33).

In the context that both DN and MA had been subject to multiple instances of sexual abuse the Crown submits that it was open to the jury to accept that MA’s recollection about the incident giving rise to counts 51, 52 and 53 was flawed. The Crown argues that this was an incident which, on DN’s evidence, would have been more memorable to DN than MA. In any event, it is submitted that even MA’s differing account broadly corroborated DN’s evidence that there was sexual contact between the three, including oral sex, on an occasion when the applicant’s car was broken into.

The Crown Prosecutor went to the jury on the basis that they would accept that DN, who suffered particularly longstanding abuse, had simply forgotten about the earlier incident and that MA’s present recollection of the incident the subject of counts 51 to 53 was simply wrong.

The Crown here argues that, if anything MA’s recollection corroborated DN’s account that there was sexual conduct and that it did involve oral sex. Hence it is said that it was open to the jury to convict on these counts.

As noted earlier, I cannot accept that the evidence of this incident can be reconciled; and in my opinion it ought to have led the jury to have a reasonable doubt as to what had occurred. I would set aside the convictions for counts 51 to 53.

Finally, the applicant challenges the convictions for counts 54 to 57, which related to the further incident described by DN at the applicant’s home in Bangor when it is said that MA was present.

The applicant raises two issues with the evidence as to these counts.

The first issue, which relates to all four counts, is that DN’s account of this further incident involving MA at the applicant’s home at Bangor was not supported by MA’s evidence, noting that MA’s evidence was to the effect that he only ever met DN on two occasions and that on both of those occasions, the applicant took him and DN to the bush. The applicant points out that MA did not say that he was ever present inside the applicant’s home at Bangor together with DN.

The second issue, relating solely to counts 55 and 56, is that the applicant says that DN’s evidence in relation to count 56 (an alleged act of anal intercourse) was initially to the effect that, “this was probably one of those times” when such an act occurred. It is noted that, when asked directly as to the “order of events” on the particular occasion alleged, DN made generalised assertions:

It is noted that, when questioned by the Crown whether on this occasion there had been any “attempt” or “oral intercourse” in which the applicant had fellated DN (the subject of count 55), DN said he was “not a hundred percent sure” and could not “say yes or no” because “it happened that many times”.

However, after being referred to his statement, DN said unequivocally that such an act occurred, that the applicant pushed his head down onto his penis and had him hold his penis in his hands.

The applicant submits that the jury should have at least entertained a doubt about counts 55 and 56 but, more generally, a reasonable doubt arose in respect of all four counts the subject of this incident in the light of MA’s evidence that he only ever met DN on the two occasions the applicant took him and DN to the bush.

As to count 55, where DN gave his evidence relating to the allegation that the applicant’s penis went into his mouth after looking at his statement, the Crown says that, in determining whether or not to accept this evidence, the jury were entitled to take into account that count 55 occurred in circumstances of a multitude of other sexual acts. The Crown submits that it was open to the jury to accept that this particular aspect of the incident had been forgotten by DN when in the witness box.

The Crown notes that DN said that MA was at the Bangor house asleep in the lounge room when counts 54, 55, 56 and 57 occurred. The Crown argues that a jury could readily have found that a night spent in the applicant’s lounge room was not a memorable event for MA, whether or not DN was also at the house. The Crown says that the inconsistencies in the evidence were a matter for the jury to resolve; and that they did not compel the jury to have a doubt about all counts involving both MA and DN.

Again, as to count 56, the Crown says that although some of DN’s language was general, it was clear overall that DN was referring to a single incident. It is noted that DN said unambiguously (and using the perfect tense) that, after going into the bedroom: the applicant “had oral sex with myself” (T 134) (count 54); “I had anal sex with him” (and “tried to get it over as quick as possible”) (T 135) (count 56); and the applicant “proceeded to have anal sex with myself” (T 135) (count 57).

Further, the Crown says that DN’s evidence that “[t]his was probably one of the times where – where I had anal sex with him and I – I ejaculated” (T 135) is an expression of uncertainty about whether or not ejaculation occurred, not about whether or not anal sex occurred (cf the applicant’s written submissions at [157]).

In circumstances where MA was not present during the incident the subject of these counts, I accept that the fact that he did not give evidence of an occasion at the applicant’s house in Bangor when DN was also present was a matter that the jury could reasonably regard as not giving rise to a reasonable doubt as to what had occurred in the bedroom between the applicant and DN.

As to the way in which DN gave this evidence, I accept that his evidence was sufficiently particular and that, in context, the uncertainty expressed by him was as to whether ejaculation had occurred not as to the anal sex itself.

I am not persuaded that the convictions on these grounds were unreasonable. It was for the jury to reach a conclusion as to DN’s credibility on these counts.

The applicant contends, by Grounds 3 and 4, that a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address which conflated tendency and coincidence reasoning, and by the trial judge’s consequential error in his directions to the jury on tendency reasoning. These grounds may conveniently be dealt with together.

As adverted to earlier, prior to the trial, the Crown had applied successfully pursuant to s 97 of the Evidence Act to rely on tendency reasoning in the Crown case. The Crown did not apply pursuant to s 98 of the Evidence Act to rely on coincidence reasoning in the Crown case. (While the applicant here does not suggest that it would not have been open to the Crown to make such an application, the applicant relies on the fact that the Crown did not do so.)

I have referred above to what was said as to tendency evidence in the Crown Prosecutor’s opening address; and to the closing submissions as well as the directions given to the jury in this regard.

By Ground 3 the applicant submits that in the italicised passages set out above, the Crown Prosecutor conflated tendency and coincidence reasoning. (The Crown argues that rule 4.15 applies to Ground 4. It is also noted that the failure to take issue with the Crown Prosecutor’s closing address is a particular of Ground 5 as to incompetence of Counsel.)

By Ground 4 the applicant complains that in the summing up, his Honour also conflated tendency and coincidence reasoning, in stating that:

The applicant refers to Murdoch (a pseudonym) v R (2013) 40 VR 451; [2013] VSCA 272 at [81] where Priest JA (with whom Redlich and Coghlan JJA agreed) said:

The applicant argues that there clearly is a distinction between tendency reasoning and coincidence reasoning, which is reflected by the terms of ss 97 and 98 of the Evidence Act. In relation to tendency reasoning, “the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue” (see Hughes v R (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [16] (Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that s 97(1) does not necessarily “condition the admission of tendency evidence on … operative features of similarity with the conduct in issue”; where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, the evidence is likely to have a high probative value where “(i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged” (Hughes at [39]-[41] per Kiefel CJ, Bell, Keane and Edelman JJ).

The applicant contrasts this with coincidence reasoning, which has been described as “improbability reasoning” which turns on an assessment of “similarities between [two or more] events, or … the circumstances surrounding those events, or both” to reason that the events in question did not occur coincidentally (referring to the ALRC Report 102 at paragraph 11.25). Section 98(1A) (which did not apply at the time of the trial, having been subsequently inserted in the legislation by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), Sch 1[3], which took effect on 1 July 2020) now provides that the “coincidence rule”:

The applicant says that such an approach was already commonplace where the prosecution sought to rely on coincidence reasoning in multiple complainant trials. The applicant refers in this regard to a standard direction in the Criminal Trial Courts Bench Book (at [4-240]), though it is unclear to which version reference is made – the relevant chapter which includes the direction at [4-240] was updated in February 2021.

It is noted that the distinction between tendency and coincidence reasoning was considered by Basten JA (with whom Fullerton and RA Hulme JJ agreed) in Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 (Saoud) at [30]. There, his Honour observed at [43] that:

In Hughes, the plurality of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) noted at [43] that at first instance in that case “the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal does not invite consideration of any overlap between tendency and coincidence reasoning” (citing Saoud v R at 490-491 per Basten JA). The applicant points out that in the present case, the Crown also eschewed reliance on coincidence reasoning.

It is noted that, in opening the Crown case, the Crown Prosecutor addressed the jury consistently with the Crown’s pre-trial tendency notice. The applicant says that it was only on the fourth day of the trial, at the close of the Crown case, that the Crown Prosecutor introduced coincidence reasoning into the Crown’s tendency case, in submitting that he intended to tell the jury that if they were satisfied the applicant had the tendencies that the Crown alleged, the jury could consider whether that made more likely allegations of the other complainants, noting the similarities.

The applicant points out that in his closing address, the Crown suggested to the jury that if they were satisfied, for example, that DN’s allegations established the tendencies alleged, the jury might think that that assists them to determine whether RA and MA were truthful witnesses and that the Crown Prosecutor’s submission culminated in him telling the jury that “The Crown says they’re all telling the same story about how Mr Madden operated, because they’re all telling you the truth”. The Crown later submitted that the complainants “tell a compellingly similar story”, suggesting they “clearly have not all sat in a room at any point”.

It is submitted that the Crown’s submissions in this regard invited the jury to reason that, because the complainants said similar things about the applicant’s conduct towards them and there was no evidence that their accounts were adversely affected by contamination or concoction, the jury should treat their evidence as supportive of each other on the logical basis that it was improbable that such similar allegations would be made about the applicant’s conduct coincidentally. In this respect, it is submitted that the Crown Prosecutor introduced coincidence reasoning into his tendency case.

The applicant says that it was open to the Crown to apply prior to the trial to rely on coincidence reasoning (which application would have then been determined in accordance with ss 98 and 101 of the Evidence Act) but that the Crown did not do this. It is submitted that accordingly the Crown was precluded from making any submission to the jury which invited their engagement in coincidence reasoning. The applicant contends that, by doing exactly that in his closing address to the jury, a miscarriage of justice was occasioned.

It is accepted that the applicant’s trial counsel said nothing either at the point that the Crown first raised with the trial judge prior to addresses the way in which he intended to put the Crown’s tendency case or following the Crown’s closing address. The applicant submits that the applicant’s counsel should have objected to the Crown relying on coincidence reasoning where no notice of the Crown’s intention to do so had been given. It is submitted that there is no forensic reason why, given the issues in the applicant’s trial, his counsel did not object.

Based on what the Crown said to the jury in his closing address, the trial judge directed the jury that if they were satisfied that the Crown had established the tendencies alleged, that would make it more likely that the complainants “who have made various allegations at different times are likely to be telling the truth”. It is submitted that, by directing the jury in this way, the trial judge erred, and effectively echoed the erroneous submission made by the Crown in his closing address. It is said that the erroneous direction was given to the jury on the first day of the trial judge’s summing-up. The applicant accepts that it was not repeated the following day during the balance of the judge’s directions including his written direction on tendency. However, the applicant says that it was also not cured by any further direction that was given.

Again, it is noted that the applicant’s trial counsel did not object or seek that any further direction be given. Accordingly, the applicant accepts that leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue Ground 4. It is submitted that leave should be granted. The applicant submits that a proper direction as to the use that the jury might put any tendency they found established by the evidence in the applicant’s case was a necessary element of a fair trial.

The Crown points out that the use of tendency and coincidence evidence in this case was governed by the Evidence Act prior to the amendments effected by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW).

It is noted that in a child sexual assault case, the evidence of one complainant may be admissible in proof of another complainant’s allegations on the basis of either tendency or coincidence reasoning; and that, where tendency reasoning is relied upon, “the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue” (Hughes at [16] per Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that such a process of reasoning depends on the jury’s finding, first, that a particular allegation is true and, secondly, that the tendency asserted has been proved.

The Crown points out that, in the context of a child sexual assault prosecution, the Royal Commission explained the way in which tendency evidence may be deployed (p414):

The Crown says that, by contrast, coincidence reasoning, enables the evidence of multiple complainants to be “mutually corroborative” (Versi v R [2013] NSWCCA 206); i.e., instead of requiring any preliminary findings to be made, the jury can have regard to the “improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred” (Pfennig v R (1995) 182 CLR 461; [1995] HCA 7 at 482).

It is noted that, as explained by the Royal Commission, in the context of a child sexual assault prosecution (p 415):

The Crown contends that neither the closing address nor the trial judge’s summing up, considered in full, had the effect of inviting the jury to regard the evidence of each complainant as mutually corroborative (i.e., to engage in coincidence reasoning).

As to the closing address, it is said that the probative value of the tendency evidence in this case lay in the similarities between the allegations (cf the applicant’s written submissions at [168]). The Crown notes that in Hughes, the High Court recognised that the more particular an asserted tendency the higher its probative value (see at [64]). Reference is here also made to R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer), where the High Court spoke of the need for a “common feature” for tendency evidence to have the necessary probative value for admission (at [58] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) and, in McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 of the need to “identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together” (at [31] per Kiefel CJ, Bell, Keane and Nettle JJ).

The Crown argues that the probative value of the tendency evidence lay in the similarity of the accounts given by the complainants, not by virtue of coincidence reasoning but because the common features of the offending demonstrated a tendency which (if proved) increased the likelihood that any given complainant’s account of any given count was true (referring here to Bauer at [58]).

It is submitted that the Crown Prosecutor’s appeal to the jury to consider the similarities in the accounts given by the complainants therefore did not invite coincidence reasoning; i.e., it did not invite the jury to regard the evidence of each complainant as mutually corroborative (coincidence); rather, the Crown Prosecutor made clear that the jury had to consider, first, whether or not they accepted a single complainant’s account. It is said that the Crown Prosecutor’s submission that “if they were satisfied, for example, that DN’s allegations established the tendencies alleged, the jury might think that that assists them to determine whether RA and MA were truthful witnesses” was proper (cf the applicant’s written submissions at [167]) and that this described a way in which tendency reasoning was available to the jury.

As to the summing up, the Crown says that his Honour’s summing up did not invite the jury to regard the evidence of the complainants as mutually corroborative. Rather, it is noted that his Honour directed the jury that: they needed to be satisfied that any one or more of the alleged acts occurred before they could contemplate engaging in tendency reasoning (SU 8); they would then need to be satisfied beyond a reasonable doubt that the alleged tendency existed before they could engage in tendency reasoning (SU 8); and that only if they found the act or acts established and the tendency proved, then that might make it easier to accept the evidence of a complainant (SU 8).

The Crown says that the written directions (MFI 25) served to emphasise the need for the jury to make the necessary preliminary findings before they could go on to engage in tendency reasoning. Thus it is said that the directions in no way enabled the jury to treat the evidence of the complainants as mutually corroborative (cf the applicant’s written submissions at [171]).

Thus, the Crown submits that, read as a whole, neither the Crown Prosecutor’s address, nor his Honour’s summing up, invited the jury to engage in coincidence reasoning.

The applicant complains that there was a conflation in the Crown’s address and in the summing up between tendency and coincidence reasoning and that (unlike the position in Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42 (Hoyle) where the Court (Murrell CJ, Burns and North JJ) reasoned (at [208]) that the error had been rectified), here, the conflation was not corrected. It was accepted by the applicant that if what was here being said was that if the tendency is established it could make more likely the occurrence of the event in issue (i.e., that the applicant had acted in conformity with the tendency on a particular occasion) there would not be error. The applicant also accepted that the concepts of tendency and coincidence were not far apart.

In the present case, a complainant alleging an event consistent with an established tendency might well be seen as more credible or reliable in that account. The tenor of the observations of the Court in Hughes was that, if a tendency is accepted, this increases the likelihood that the complainant’s account was not fabricated. In this regard, the Court stated at [40]:

The remarks of the High Court in Bauer at [49] are also apposite:

The applicant says that there is a fine distinction but that there is nevertheless a distinction in the modes of reasoning involved. It has been suggested that, if evidence is admissible as tendency evidence, then a direction in terms of coincidence (emphasising striking similarities in the evidence) is unlikely to constitute a misdirection (see S Odgers, Uniform Evidence Law (2021, 16th ed, Thomson Reuters) at [101.360]; where reference is made to KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 (KJR), per Rothman J at [52]-[54]; Simpson J (with whom McClellan CJ at CL agreed) at [3]-[4]); see also Doyle v R [2014] NSWCCA 4 (Doyle) per Bathurst CJ (with whom Price and Campbell JJ agreed) at [144]-[148]). Although neither KJR nor Doyle expressly state Odgers’ broad proposition, the cases demonstrate that proof of similar conduct may support proof of a tendency to behave in a certain way or have a certain state of mind, which in turn may establish the ultimate offence. This is apt to suggest a further requirement (that there be a similarity in the conduct) which is arguably to the benefit of the applicant (though here the applicant’s complaint is as to erroneous assertion of there being mutual corroboration of complainants).

In Hoyle, Murrell CJ, Burns and North JJ held that nothing could have turned on the prosecution’s error in confusing tendency and coincidence reasoning on two bases. As noted by the applicant, one of those bases was the fact that defence counsel drew the error to the attention of the trial judge who then gave directions to the jury to rectify the error. Yet, importantly, the second basis was that even if the Crown Prosecutor had corrected the error, this correction “would have had no impact on the way in which the jury dealt with the issue” (Hoyle at [172]). The Court said at [171] that “in the circumstances of the trial, the distinction between tendency reasoning and coincidence reasoning was subtle and likely to be lost on any jury”.

In the present case, there was no error. What was said conveyed an acceptable mode of tendency reasoning available to the jury. It was to the effect that, if it was accepted that the applicant had the tendency alleged, that may make it more likely that the applicant did the things alleged in respect of each complainant and each count; i.e., in effect that the version of each complainant concerning the alleged offences was more likely to be truthful. The jury was not misled as to the reasoning required to be satisfied that the ultimate offence was committed, as the similarity of the conduct is relevant to the proof of the tendency and thus to the proof of the offence. The trial judge here also gave particular emphasis to the requirement that the jury be convinced beyond a reasonable doubt of the conduct alleged.

Grounds 3 and 4 are not made good; and leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 should be refused in relation to these grounds.

Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (Nudd v (2006) 80 ALJR 614; [2006] HCA 9 (Nudd) at [12] per Gleeson CJ; TKWJ v R (2002) 212 CLR 127; [2002] HCA 46 at 149-150 [79] per Gleeson CJ; Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at 665 [18] per Hayne J).

In R v Birks (1990) 19 NSWLR 677 (Birks) (the case from which the eponymous Birks ground has been coined), the Court of Criminal Appeal considered an appeal on the ground of incompetence of counsel. At trial, after directions had been given to the jury which invited the jury to treat the conduct of the defence counsel as a relevant factor when engaging in their own decision making process and when forming views as to the credibility of the accused, defence counsel informed the trial judge that the failure to cross-examine the complainant about certain matters had been the result of his own oversight. Gleeson CJ noted (at p 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted but went on to say (at p 684) that:

At p 685, his Honour summarised the relevant principles, the third of which was:

In Birks, the two features which his Honour considered took it out of the ordinary run (see at pp 685-686) were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem could have been dealt with once the problem had become apparent during the cross-examination of the appellant (relevantly, in that case there was available evidence to support the appellant and to rebut the inference that the jury was invited to draw from Counsel’s conduct). His Honour said that:

Those principles were recently applied by Adamson J (with whom Bellew and Cavanagh JJ agreed) in La Rocca v R [2021] NSWCCA 116 (at [136]-[138]).

Counsel’s conduct is to be examined objectively, from the record of the trial (see Nudd per Gleeson CJ at [9]), and the relevant standard is whether the conduct was “incapable of rational explanation on forensic grounds” (Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1 at [415] per Bathurst CJ, R A Hulme and Beech-Jones JJ).

As made clear in Birks, it is insufficient for an applicant “simply to point to some failing, even a gross failing, of the legal representative who appeared”; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; Davis v R [2017] NSWCCA 257 at [59] per Price J, with Hoeben CJ at CL and Schmidt J agreeing).

The applicant submits that a miscarriage of justice was occasioned by the incompetence of the applicant’s trial counsel. It is submitted that the incompetence of his trial counsel manifested itself in the cumulative effect of the following combination of omissions.

First, not making a pre-trial application for counts 20, 23 and 24 to be stayed because they were statute-barred.

Second, not giving an opening address.

Third, cross-examining each complainant in a manner that was “both exceedingly brief and devoid of any discernible forensic purpose beyond effectively “putting” that the offences did not happen” (see applicant’s submissions at [175]). It is noted that, for MA and DN, Counsel’s cross-examination was a total of 13 questions (six questions put to MA and seven questions put to DN).

Fourth, not addressing the Court in response to the Crown’s indication at the close of the Crown case that he intended to expand the Crown’s tendency case to include coincidence reasoning.

Fifth, not making any application for a directed verdict in respect of counts 34, 35, 36, 37, 46, 47 or 56, where DN’s evidence went no higher than “generalised assertions” of sexual misconduct by the applicant towards him rather than evidence as to any particular act alleged by those counts.

Sixth, giving a “strikingly brief closing address, during which he made no specific submissions about any of the matters raised by the evidence adduced in the case, in particular, any of the matters addressed by these submissions under Ground 2”. It is noted that Counsel’s closing address went no further than reminding the jury about the onus and standard of proof and reminding them that the applicant said he did not commit the offences.

Seventh, making no application for a direction pursuant to s 165B of the Evidence Act 1995 in circumstances where the applicant’s defence was that he did not commit the offences and was at the considerable forensic disadvantage of being on trial more 25 to 30 years after the fact, in circumstances where he was first interviewed in respect of any of the allegations in 2017, and where his ability to marshall any sort of defence by investigating the complaints made, challenging the complainants or other witnesses in the Crown case, calling evidence and generally conducting his defence were affected adversely by this delay (here referring to Tully v R (2006) 230 CLR 234; [2006] HCA 56 at [177] per Crennan J).

The applicant submits that, having regard to the accumulated impact of the above matters and having regard to the overall way in which the applicant’s trial was conducted by his counsel, there was a miscarriage of justice warranting appellate intervention.

As to the particulars of incompetence, the Crown submits as follows.

As to the first, the Crown accepts that the convictions for counts 20, 23 and 24 must be quashed on account of the operation of s 78T. However, the Crown submits that the failure to seek a stay of these counts did not contribute to a miscarriage of justice; noting that it would not have prevented the evidence that gave rise to those counts from being led.

As to the second (not giving an opening address), the Crown notes that an opening address is facultative (referring to s 159(1) of the Criminal Procedure Act 1986) and is not an option always taken up by defence counsel. The Crown says that, given that an opening address may not be used to make submissions to the jury (citing R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81), there was no forensic advantage to be gained by giving an opening address. It is submitted that particularly where, as here, the defence case was an outright denial of the offences, there was little to be achieved by way of a narrowing of the issues. In those circumstances, the Crown says that it cannot be said that, objectively speaking, there was no rational forensic explanation for the failure to give an opening address. It is submitted that this failure could not have affected the outcome of the trial.

As to the third complaint (as to the cross-examination of the complainants), the Crown accepts that the cross-examination of the complainants was “unorthodox”. However, the Crown argues that it was capable of explanation on rational forensic grounds in circumstances where the applicant’s case was a simple denial that the offences had occurred. It is said that, faced with historical allegations, the applicant could do little other than deny the offences (and put that to the witnesses). It is submitted that, by not cross-examining the witnesses further, the applicant prevented the witnesses from repeating their evidence in chief and supplying further details in relation to each incident that may only have enhanced their credibility. It is submitted that this left the applicant in a strong forensic position simply to submit that the Crown had not discharged its burden of proof.

As to the fourth and fifth particulars of complaint (failure to complain about the Crown’s asserted use of coincidence reasoning and failure to make application for directed verdicts in relation to those counts for which it was contended that there was only generalised evidence) the Crown argues that (for the reasons set out in the Crown’s submissions on those matters) there was no issue that trial counsel could legitimately have taken with the Crown Prosecutor’s closing address or with the evidence given by DN.

As to the sixth matter (the brevity and inadequacy of the closing address), the Crown accepts that the defence closing address was also “unorthodox”. However, it is noted that defence counsel emphasised the burden of proof and what were said to be “strong” denials by the applicant in his evidence. The Crown accepts that it is usual to address a jury in far greater detail, but points to what was said by defence counsel, namely that “In the face of such allegations, what is a man to say in response? Is it enough to say ‘It didn’t happen’ or ‘I didn’t do it’? What is he to do? He went in the witness box, opened himself to your scrutiny and said ‘I didn’t not (as said) do any of these things alleged by [RA], [MA], [DN] or [BW]’”. The Crown says that it is apparent that defence counsel’s strategy was to appeal to the jury’s sense of fairness, to rely on the applicant’s evidence and to submit that the Crown had not discharged its burden of proof. The Crown argues that although such a strategy was unorthodox, it cannot be said that it was incapable of rational explanation on forensic grounds.

Moreover, the Crown says that many of the possible deficiencies in the evidence now relied upon were drawn to the jury’s attention by the Crown Prosecutor, including: that the jury would “no doubt have to consider that initially he thought it might have happened in the house” (a reference to count 8) (T 244); that “no doubt, you will find it relevant that I asked ‘Did you ever engage in anal intercourse with Mr Madden’ And he said ‘I don’t think so’ … The Crown doesn’t shy away from that” (T 245) (in reference to count 12); that it was a matter for the jury “as to whether you’re satisfied he did refresh his memory from a statement he made in 2007 and whether it was a memory he had sitting in court” (in reference to RA, specifically count 12); that count 18 was “a tough one” as there was some “conflicting evidence” in relation to it (T 249-251); that “one of the biggest tasks” for the jury would be “working out what happened between [MA] and [DN]”, with reference to their conflicting evidence (T 252-3); and that the jury would need to consider that count 22 was elicited only after MA refreshed his memory from his statement (T 252).

As to the seventh matter (failure to apply for a s 165B warning), the Crown says that counsel needed to be able to demonstrate that the applicant had suffered an identifiable, significant forensic disadvantage beyond the mere passage of time (Groundstroem v R [2013] NSWCCA 237 at [56] per Adams J with whom Macfarlan JA and Button J agreed; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [39] per Gleeson JA with whom Price and Wright JJ agreed); and argues that the applicant has identified no particular forensic disadvantage that would have justified a s 165B warning. It is noted that, to the extent that the mere passage of time had caused the applicant a disadvantage, his Honour told the jury that 30 years “is a long time in anyone’s language” and that the jury had to take into account that “over time people’s recollections change, they vary. People forget things” (SU 2).

The Crown says that, in circumstances where no significant forensic disadvantage has been identified, it cannot be said that defence counsel’s failure to seek a particular direction in that regard was not justifiable.

Of the complaints made by the applicant as to the conduct of the trial by defence counsel, to my mind that which takes this matter outside the ordinary running of a trial (to use the language of Gleeson CJ in Birks) is the perfunctory nature of the cross-examination of the complainants coupled with the equally inadequate closing address. The gross failings in that regard are amply demonstrated by the comprehensive and careful way in which the applicant’s (different) counsel on appeal explored the inconsistencies in the evidence of MA and DN and the matters that it was contended should have raised a reasonable doubt in the mind of the jury. Even if, as the Crown here suggested, there was a rational forensic decision to take the (concededly unorthodox) approach that defence counsel did in cross-examination of MA and DN (doing little more than putting to them that their account of events was incorrect), there is no apparent rational basis for failing to highlight to the jury the inconsistencies in the evidence – particularly the evidence that the Crown concedes is not readily reconcilable. There is much force to the observation that this was a case that defence counsel appears to have allowed the case simply to “wash over” him; and in those circumstances the applicant did not have a fair trial on the very serious counts alleged against him.

The question then is whether defence counsel’s conduct in that regard affected the outcome of the trial such that there was a miscarriage of justice. I accept that the Crown pointed to some of the evidentiary difficulties in its closing address; and that the balance of the complaints here made by the applicant would not warrant appellate intervention. However, I consider that defence counsel’s failure was so incompetent that the applicant was deprived of the opportunity to have a fair trial. Even if the lack of address was more significant for some counts than others, all are infected by the error because of the reliance on tendency evidence which pervaded each count.

The applicant’s convictions on the counts which were statute barred (counts 20,23 and 24) should be quashed and verdicts of acquittal entered. The applicant’s convictions on the counts where the verdict has been found to be unreasonable or unsupportable (counts 1-3, 21, 22, 51, 52 and 53) should be quashed and verdicts of acquittal entered. On the remaining counts on which the applicant was convicted, the convictions should be quashed because the incompetence of defence counsel at trial deprived the applicant of a fair trial and those counts should be remitted for re-trial.

For the above reasons, I propose the following orders:

R A HULME J: I agree with the analysis, conclusions and orders proposed by Ward P.

It is highly regrettable that a retrial must be ordered but it is necessary for the reasons provided by Ward P. It may be generous to regard the brevity of Mr Sabharwal’s cross-examination of the three complainants (occupying an aggregate of 6 pages of transcript) as being an astute forensic tactic. The closing address, however, was anything but that. It was so perfunctory that it ran to a mere 36 lines of transcript. It was confined to telling the jury about a subject that had already been covered by the Crown Prosecutor and would be addressed again by the trial judge: the onus and standard of proof. There was not the slightest attempt at providing the jury with any critical analysis of the quality of the evidence relied upon by the prosecution. In these circumstances, it is difficult to understand how the applicant benefited from having legal representation at all.

BELLEW J: I agree with Ward P. I also agree with the additional observations of R A Hulme J.