Hughes v R

THE COURT: On 7 April 2014, a jury convicted Robert Lindsay Hughes of nine sexual offences committed between 1984 and 1987 against three victims, when each was aged under 16 years. On 8 April he was convicted of a 10th offence committed in 1990, involving an act of indecency towards a fourth victim, also then aged under 16 years. The jury was then discharged, being unable to reach a verdict in relation to another count involving a sexual offence, which it was alleged he had committed in 1988, against a fifth victim, who was also then aged under 16 years.

On 16 May 2014, Zahra SC DCJ sentenced Mr Hughes to an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years, to date from 7 April 2014.

Mr Hughes appeals against his conviction and seeks leave to appeal against sentence. Leave is required in respect of ground 5 on the conviction appeal in accordance with r 4 of the Criminal Appeal Rules. For convenience, Mr Hughes is hereafter referred to as the applicant. His case is that he has been the victim of a miscarriage of justice.

The charges of which the applicant was convicted were as follows:

Count 10, an offence under s 60(E)(2) of the Crimes Act of which the applicant was not convicted was:

The grounds of appeal advanced in the notice of appeal were:

During the course of the applicant’s submissions, three further grounds were sought to be advanced:

The Crown did not oppose the leave sought in relation to grounds 12 and 13, in respect of which leave was granted at the hearing. Leave to advance ground 14 was opposed.

Before turning to the grounds of the appeal, the unusual level of attention which the allegations made against the applicant and the trial generated in mainstream and social media should be explained.

There was no issue between the parties that there had been an extraordinary level of interest in the allegations the subject of the charges, reflected by mainstream media reports over the course of the preceding two years, as well as in social media. It was also common ground that the nature of the media coverage was correctly described by Zahra DCJ in his 14 February 2014 permanent stay judgment (R v Hughes (District Court (NSW), Zahra DCJ, 14 February 2014, unrep)), where his Honour referred in detail, at pp 2 – 12, to extracts of reporting of specific allegations against the applicant, in both mainstream and social media. These reports were also variously referred to in his Honour’s 14 February tendency judgment (R v Hughes (District Court (NSW), Zahra DCJ, 14 February 2014, unrep)).

The applicant was an actor who had the lead role in a well-known Australian series, Hey Dad..!, which aired in the late 1980’s to the mid-1990’s. The complainant, SM, had played the role of his daughter in that series. An editor of the magazine Woman’s Day, Mr Jackson, became aware of rumours that the applicant had abused SM, while they worked on the program together. In 2010 he asked a publicity agent, Mr Moriarty, to approach SM about an interview. Mr Jackson later interviewed SM and published an article in Woman’s Day in March 2010, which did not name the applicant, but contained allegations of sexual abuse against a cast member.

SM then lived in America and the applicant in Singapore. She later agreed to be interviewed by the television program, A Current Affair. That interview was later broadcast on 22 March 2010. Again the accused was not named. Other complainants then came forward. During a second interview broadcast on 25 March 2010, in which JP and her sister were also interviewed, it was alleged that the accused had engaged in sexual misconduct. AA, later called as a tendency witness, then came forward.

It emerged at trial that Mr Moriarty and SM had both received payments for interviews which SM had given. In total, SM had received some $100,000.

Both the magazine article and these television programs generated considerable interest, including in the mainstream media and social media. A police investigation into the applicant began soon afterwards. The applicant was confronted by media in Singapore. That confrontation also received media coverage. He then moved to London, where he was arrested on 9 August 2012, by the London Police Extradition Unit. He did not contest extradition and was granted conditional bail. He later surrendered to police and was transferred to Sydney. This, too, attracted media attention, as did the later court proceedings.

In the permanent stay judgment, Zahra DCJ described the media coverage at each of these stages to have been “substantial and extensive” and in March 2010 to have been “intense and widespread”. On the stay application, the applicant had tendered evidence of newspaper publications, television and radio reports gleaned through media monitoring organisations, as well as what internet searches using the search engine Google had revealed, and what had been published on other social media, including Facebook and Twitter.

Zahra DCJ outlined in detail the media reporting, by reference to the titles of published articles. He noted that cast members had been interviewed, and that they had referred to rumours of sexual misconduct by the applicant toward young cast members, as well as to the specific allegations made by SM. Photos of SM and the applicant, while she was a small child, were widely published. That reporting, his Honour found, maintained some momentum from 2010 to 2012, largely due to reporting of the continuing delay in the police investigation. In that period, there was ongoing reporting about SM’s complaints, as well as extensive reporting of complaints by other complainants, some of whom were interviewed and their complaints broadcast on television.

His Honour at pp 6 – 7 described the types of allegations then propagated in the public domain as follows:

Zahra DCJ also outlined the nature of the reporting when the applicant was confronted in Singapore and when he was later arrested in London. Comments attributed to police investigators were then published in The Sydney Morning Herald. Mr Derryn Hinch also commented on his website on SM’s bravery in coming forward with her allegations. His Honour observed, at p 8, that:

His Honour went on to outline the types of reporting in the media following the London extradition proceedings, the Local Court appearance in July 2012 and later in the District Court. He then dealt with the September 2013 program “Predators under Protection” presented by Mr Derryn Hinch, which was broadcast on 8 September, when SM was interviewed and on 15 September, when viewers were invited to vote for a petition advocating a “Megan’s Law” in Australia. That referred to legislation enacted in a number of States in America, where the location of convicted sex offenders is published and signs are placed outside their homes, notifying the public that a sex offender resides there. Publicity for that program included photographs of SM sitting on the applicant’s lap. Published ratings for the program indicated that it had attracted 1.2 million viewers.

Zahra DCJ then turned to consider what had been published on social media, extracts from Facebook, Twitter and YouTube having been tendered. His Honour observed that the entries tended to follow the same pattern as reporting in other media, with increased traffic coinciding with mainstream media reporting. His Honour observed, at p 11, that:

His Honour also noted, at p 12, that there had been some 700,000 - 800,000 “views” to sites connected to the “Mr Doodleberger” videos, which on appeal were submitted to have been the worst of the applicant’s vilification on social media, together with the “Hitler Bunker” video, which had been published on YouTube.

The Mr Doodleberger videos were dubbed extracts from the Hey Dad..! program, which contained images of the accused and other cast members, with the original dialogue replaced with offensive language, describing the accused as a paedophile. He was also then referred to in other demeaning and derogatory ways, intended to portray him as a sexual predator. The Hitler bunker video was a scene from a German film set in Hitler’s bunker in which English subtitles referred to the applicant in derogatory terms.

We were taken to that material on appeal. The applicant’s counsel submitted that, at the time of the appeal hearing, it was still accessible on social media. Whether it was created before, or after the applicant was charged in 2012, is not apparent.

During the course of the trial, attention was also drawn to inaccurate and prejudicial reports published in mainstream media, which had also been taken up on social media. On 21 March 2014, for example, an article published in The Daily Telegraph was marked MFI 103. The submission advanced by the applicant’s advocate on 21 March was:

His Honour observed:

Orders were later made, directed to particular media organisations, for example in relation to an ABC Media Watch program aired on 29 March 2010.

During the trial, there was no application for takedown orders in relation to various prejudicial material, but various concerns were raised with Zahra DCJ from time to time as to the ongoing coverage of the trial, both by the Crown and the applicant. On 10 March 2014, for example, an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) was made in relation to what had been published on the website mamamia.com.au.

As a result, during the course of the hearing, Zahra DCJ also gave various directions to the jury as to the need to decide the case on the basis of the evidence, not what was said in media reports.

All of these grounds must be rejected.

The applicant was arraigned before Zahra DCJ on 10 February 2014, when numerous pre-trial applications raised by notices of motion filed by the applicant in January 2014 were dealt with. The respondents to the motion which sought suppression orders in relation to the pre-trial applications, as well as other orders, were:

The motions also sought orders as to:

On 5 February 2014, Zahra DCJ had made interim orders in relation to the hearing of the pre-trial applications, which prevented publication of the applicant’s identity and the motions. They were vacated at the pre-trial hearing on 10 February.

On 11 February, Zahra DCJ made a non-publication order in relation to the complainants and any material that might identify them (T 51.20-24). This order was later vacated, his Honour taking the view that the provisions of s 578A of the Crimes Act were adequate, the section making it an offence to publish any matter which identified the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant (T 58.32-37). There are also similar provisions contained in the Children (Criminal Proceedings) Act 1987 (NSW).

There are exceptions provided for in s 578A(4), including in relation to publications authorised by the presiding Judge or Justice and those made with the consent of a complainant of or over the age of 14 years at the time of publication. On 8 April 2014, a non-publication order was made in relation to the identity of various tendency witnesses. On 9 April 2014, Zahra DCJ revoked that order in relation to a tendency witness AA, on her application.

The applicant’s pre-trial applications were heard in February 2014, the parties advancing both written and oral submissions. On 11 February, Mr Sibtain, appearing for the media respondents, referred to discussions with the applicant’s advocate about steps which might be taken by agreement to take down particular publications. That matter was then deferred and, finally, no take down order was pressed at that stage.

The case advanced for the applicant at the pre-trial hearing was that the nature of the extraordinary level of adverse publicity earlier explained, which was submitted to have been directed to the merits of what was in issue at the trial, namely, the applicant’s guilt of the charges he was defending, was such that he could not receive a fair trial. Prospective jurors had necessarily been exposed to it, with the result, it was argued, that they were likely to have prejudged the prosecution case, in a way that was adverse to him. In these circumstances, it was submitted, justice required that the proceedings be permanently stayed.

The media reporting which had extended over some four years was submitted to have moved well beyond objective reporting, to a portrayal of the applicant as having preyed on vulnerable young actors, with the evidence against him being represented to be so overwhelming, that he must be guilty. The circumstances were submitted to be such that no jury, properly instructed, could go about their task in an impartial way, the applicant having been portrayed as a vile, despicable human being, who had preyed upon the young and vulnerable and was guilty of the allegations made against him. Complainants had been portrayed in a sympathetic way and a deliberate campaign to obtain interviews with witnesses and complainants, and to publish the evidence it was expected that they would give, had been pursued.

The applicant also argued that there had been no proper motive for the “Predators under Protection” program, broadcast after his extradition, while he was awaiting trial. Directions to the jury could not undo the damage done to the impartiality of jurors who had seen that program, which it was argued had done him great prejudice, given that actual and implied assertions of guilt had been made.

A report led from Professor Thomson, a psychologist, was relied on to support the application. He had studied the capacity of jurors exposed to pre-trial publicity to reach a verdict solely on the evidence and the operation of “confirmatory bias”, which was a tendency to seek out information based on established belief and to overlook material inconsistent with such belief.

It was argued that, while there was a public interest in open discussion of sexual abuse of children in the community, the prejudice which had flowed to the applicant from what had occurred could not be cured by directions given at a trial, particularly given the ongoing access to that material available to jurors through use of the internet.

In the result, the circumstances were submitted to fall into that type of case discussed in R v Glennon [1992] HCA 16; 173 CLR 592 at 623-24, where “extreme” or “singular” circumstances had arisen, which justified a permanent stay, given the abiding effect of the pre-trial publicity and the inability of a trial judge, by thorough and appropriate directions, to dispel that effect.

The Crown opposed the application, contending that the case did not fall into that exceptional class of cases, notwithstanding the nature of the publications about the applicant. It contended that the applicant could receive a fair trial before a jury, properly instructed.

Each of the complainants had made complaints about the alleged offending, while they were still children. Those complainants had been dealt with in various ways, but none had resulted in charges being laid against the applicant. Each complainant pursued their allegations as adults, after the media interest in the applicant had arisen in 2010. After he was charged, the applicant was served with statements made by the complainants and other witnesses the Crown proposed to call at the trial. There was no committal hearing and the applicant thus sought the opportunity to cross-examine the complainants and other witnesses, prior to the trial. That application was opposed.

The application to cross-examine was pressed on the basis of a 120 page document (Exhibit 13), which identified the questions which the applicant sought to ask, prior to trial, in order to explore the possibility of contamination and/or concoction of their evidence, having regard to communications between complainants and witnesses and exposure to others’ complaints, through access to publicity.

On 12 February 2014, Zahra DCJ drew to attention the difference between calling a witness, where there was a real possibility of concoction, as opposed to a possibility because there may have been an opportunity to communicate. The applicant then tendered Exhibit 19, a schedule of alleged contamination and Exhibit 20, an amended schedule of witnesses sought to be cross-examined and questioned, which comprised 56 pages.

The Crown maintained its opposition to the application, given the history of complaints, prior to the complainants having come forward as adults in 2010.

The applicant’s case before Zahra DCJ was that his Honour was not being called on to assess the credibility of those sought to be examined, based on contamination, fabrication and motive, such as to earn money, but rather to determine whether there was a real chance of contamination having occurred. His Honour considered that this argument required some precision, given that while it appeared that complainants had come forward relatively soon after the A Current Affair programs, which had put particular information into the public domain, they had earlier made particular complaints. The applicant then sought the opportunity to consider his position further.

On 13 February, the applicant’s advocate conceded that his application to cross-examine all of those identified was “something like a wish list”, but submitted that the opportunity to examine AK, for example, was required in order to examine what she had said in her police statement in 1986/87 and differences in her later statement. His Honour raised the difficulty that examination of such a witness as to the impact which access to information which had come into the public domain had had on her recollection, could only establish that it was possible that contamination had resulted, even accepting that possibility, at its highest.

The hearing that day concluded with Zahra DCJ indicating his preliminary view to the parties, that he could see no utility in permitting the cross-examination sought on the voir dire. He indicated that he would allow Mr Walsh, the applicant’s advocate, to address him further the following day. The next day Mr Walsh advanced nothing more, but relied on his written submissions.

On 14 February 2014, Zahra DCJ delivered a number of judgments, one refusing the permanent stay application and another dealing with the admissibility of the tendency evidence, the separate trial application and the application that the applicant be permitted to cross-examine the complainants and proposed witnesses about contamination and concoction of their evidence.

In his February 2014 stay judgment, his Honour concluded that the media material relied on demonstrated significant prejudice to the applicant, given its volume and content (at 18), and that its dissemination through social media was likely to engender significant ill will towards him and sympathy towards the complainants (at 19). He also considered that the reporting of SM’s complaints had moved well beyond objective reporting, as had use of comments by investigating police officers.

The frequency of the reports, his Honour found, over the course of some four years, had also reinforced impressions of the applicant’s guilt, the reporting prior to his charge having involved unrestrained commentary of a most prejudicial kind, which was in many instances irresponsible (at 19). His Honour considered that the “Predators under Protection” programs arguably contained elements of contempt. As to this, his Honour observed:

His Honour concluded that it was highly likely that a large proportion of potential jurors in the State had been exposed to the pre-trial publicity, the predominant driver of which was commercial interest, without due “regard for the interests of the accused and the community in a fair trial” (at 20). His Honour then observed:

This observation was argued on appeal to have revealed the error into which his Honour fell, in refusing to grant the permanent stay sought.

His Honour concluded at pp 20 – 21:

In his 14 February tendency judgment, Zahra DCJ dealt with the possibility of contamination and concoction in the context of the relevant provisions of the Evidence Act 1995 (NSW). His Honour outlined the evidence to be called from the complainants and the tendency witnesses from pp 9 to 37 of his judgment, before turning to evidence touching on communications between two of the complainants, AK and SM; the evidence of awareness of complaints on the part of tendency witnesses LJ, CS and VR arising from communications between them and from media reporting; and other evidence of contamination/concoction arising from media reporting, particularly the Woman’s Day article and the two A Current Affair interviews. His Honour also outlined the chronology of complaints made prior to the media reporting in March 2010.

Having reviewed that evidence, Zahra DCJ concluded that the media reporting was the catalyst for a number of complainants having come forward, but considered that “at its highest the evidence does no more than establish a merely speculative chance of contamination, rather than a ‘real possibility’”. His Honour concluded at p 49:

His Honour also considered the possibility of earlier contamination, through direct and indirect contact between a number of persons in 1986-87, when there were rumours about the applicant at a school and an investigation by police and a report to DOCS. His Honour considered that the possibility of contamination at that time having occurred was at best speculative, and that there was no real possibility of either contamination or concoction for which complainants other than SM and tendency witnesses had any motive, they all having made statements to police independently. He also considered that it was speculation to consider that complainants were emboldened by media publicity to give false accounts (at pp 52 – 53).

His Honour considered the payments made to SM to be relevant, but concluded that they also raised no more than a possibility of concoction, given her prior complaints. His Honour concluded, at p 53, that:

On appeal, there was no suggestion that his Honour’s findings involved any factual error. It was the conclusions which were reached on those facts, in relation to the application to cross-examine the complainants and witnesses, which were attacked as erroneous.

There were no appeals against either judgment brought under s 5F of the Criminal Appeal Act 1912 (NSW). In the result, on this appeal what arises for consideration is not only whether, on the material before his Honour at the pre-trial stage of the proceedings when the applicant’s applications were refused, there was error, but also whether there is error in light of what subsequently occurred at trial.

What is pursued on appeal must be approached in the way discussed in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [19], that is, the complaints advanced cannot be approached purely prospectively, as Zahra DCJ had to consider what fell to him to decide. The issues lying between the parties on appeal must be resolved with the assistance provided by what actually transpired at the trial, including the steps taken to ensure that it was a fair trial, and their results.

For the reasons which his Honour explained, he concluded that despite the nature and extent of pre-trial publicity established on the evidence, there was not a serious risk that it would deprive the accused of a fair trial. What unfolded at the trial bore out that his Honour had a proper basis for that conclusion.

As discussed in Dupas, at [26], it has been long settled that:

In R v Burrell [2004] NSWCCA 185, it was suggested by the then Chief Justice, at [39], that:

Given how the internet and social media have developed since 2004 and how they now operate, as was explored during the pre-trial applications, when representatives of the media appeared, the efficacy of such steps is entirely questionable. That explains why few take down orders were pursued by the applicant, even during the course of the trial, which continued to attract considerable ongoing attention by both mainstream and social media.

That does not, however, mean that an accused who now becomes the subject of intense community interest, as the applicant did, cannot receive a fair trial. Nor did the evidence establish that the applicant’s trial was not a fair one.

All of us, accused, victims, judges, jurors and other members of our community now live in a world of instant, largely unregulated communication of opinions disseminated by publication on social media, where they can endlessly be accessed and responded to by others. Such opinions range from the mildest of those depicted on the material in evidence (to the effect that if convicted the applicant should be appropriately sentenced), to the most extreme. In this case, that included satirical videos in the poorest of taste accessible on YouTube and even worse, commentary that not only denigrated the applicant in the way Zahra DCJ discussed, but which contained commentary which his Honour described as amounting to vigilantism.

The reality remains, however, that our civil society and the justice system which it has devised, is the means by which we help ensure that such views remain confined to social media, where those who hold such views are free to express them, rather than being acted on.

For centuries now, courts have had confidence that juries will decide the cases which they are called on to judge, on the basis of the evidence and that they will adhere to the directions which they are given by the presiding trial judges. Experience, including that revealed by this trial, demonstrates that despite fast moving technological advances which have provided people with enhanced means of communication, jurors still approach their tasks conscientiously.

There is good reason to continue in the expectation that, notwithstanding these technological developments and what they permit, juries will continue deciding cases on the evidence, in light of the submissions advanced at the trial by those who represent the parties to the proceedings and the directions of law which they are given by trial judges. This case demonstrates that jurors still accept that their decisions should not be made on the basis of what is published elsewhere, including on social media, about what falls to them to decide.

Zahra DCJ having identified the difficulties of ensuring that the applicant received a fair trial, took a number of appropriate steps, which ensured that the trial was a fair one. That began with what his Honour said, even before the jury was selected, after the applicant and witnesses were identified to potential jurors. His Honour then said:

After the jury was empaneled, Zahra DCJ addressed the jurors as to the onus of proof falling on the Crown; the presumption of innocence; their role as judges of the facts, based on the evidence; being impartial in the proceedings; and applying the law as directed by his Honour, to the facts as they found them to be. They were also given written directions that their verdict must be based solely on the evidence and that they had to exclude from their minds any publicity. His Honour later revisited what he had said before the empanelment, as to the significant pre-trial publicity which juries might have seen or read, as the trial continued. That topic was also addressed in the applicant’s submissions and was again taken up in his Honour’s summing-up.

This was undoubtedly a jury which attended to those directions. It posed a number of questions during the trial, including pertinently, during the summing-up, in relation to publicity. By the jury note marked MFI 121 the jury asked:

This question was answered by his Honour in summing-up, by reference to the evidence and the parties’ submissions in terms to which it will be necessary to return below.

The jury retired at 12 pm on 3 April 2014, deliberated all day on 4 April and until 2:30 pm on 7 April. A note was then sent to the effect that:

Verdicts were then entered in relation to counts 1-9 and the jury directed to resume their deliberations. A further note was sent on 8 April at 11:48 am:

A verdict was then entered in relation to count 11. The foreman was examined by his Honour and the jury was then discharged.

That sequence of events demonstrates, unarguably, that this jury approached its task in the way discussed in Dupas. The course which the trial took, including as it did the various directions given by Zahra DCJ over the course of the trial and finally in summing-up; the question the jury asked about publicity and how it was answered; the fact that a verdict was first reached in relation to counts 1 to 9, before the jury reached a verdict in relation to count 11, after further deliberation which related to SM, when considered with the fact that the jury could not reach a unanimous verdict in relation to count 10, simply does not leave open to doubt that this jury decided the case on the evidence, as it had been directed to do.

That further time was required before a conclusion was reached in relation to the charge concerning SM, indicates that the jury reached its verdict in relation to her allegations on the evidence relevant to the charge which concerned her and, notwithstanding the evidence as to her feelings towards the applicant, how she had pursued them through social media and the interviews for which she had received considerable payment in 2010.

All of this does not leave open the conclusion that there was a miscarriage of justice, because the applicant was refused a permanent stay.

To the contrary, the evidence establishes that the applicant did receive a fair trial, notwithstanding the publicity and the refusal of the application to cross-examine the complainants and the tendency witnesses on the voir dire, as explained below.

To come to a contrary conclusion in the face of all this evidence would require undue attention to be paid to the views expressed in mainstream and social media and insufficient attention to what actually transpired in this trial. To uphold the appeal because a permanent stay was refused, despite the prejudicial commentary, before and after the applicant was charged, would be to create a mechanism by which those of ill will could undermine the proper operation of our system of justice. Such a mechanism would also be readily available to be exploited by an accused and those who support him or her, who are intent on ensuring that charges brought cannot go to trial.

The evidence in this case well demonstrates that the jury system is robust and capable of ensuring that a person accused of serious offences can receive a fair trial, despite prejudicial and ill intended comments widely and irresponsibly published on mainstream and social media.

That does not mean that those who commit a contempt of court in publishing such material ought not to be appropriately dealt with for that conduct, be they representatives of mainstream media, or those who publish contemptuous material on social media.

Neither the parties nor Zahra DCJ considered it necessary, however, for any particular person or organisation to be dealt with for contempt. Nor was that course urged by the parties on appeal. It is not appropriate for this Court now to deal with any apparent contempt in the trial proceedings. That must remain a matter for the judge presiding over the trial to determine, after hearing from the parties.

There was no error in his Honour’s refusal of the application to cross-examine the complainants and the tendency witnesses about the possibility of concoction and/or contamination.

Again, there was no suggestion that his Honour had made any factual error in his judgment. The attack was on his Honour’s conclusions, having regard to the authorities which bound him.

The argument advanced on appeal rested on Hall J’s approach in BJS v R [2011] NSWCCA 239 where, in a s 5F appeal witnesses had been cross-examined in relation to contamination and concoction. There, the issue was pursued by way of two grounds of appeal. First, that it had been wrongly found that there was no relevant evidence of contamination, concoction or fabrication in the cases of some witnesses. Secondly, that it had been wrongly found that there was not a real chance of contamination or concoction in the case of other witnesses. This was also a case where a tendency notice had been served, but questions of contamination and concoction can, of course, arise in other circumstances in a criminal trial.

Hall J observed, at [203], that:

Here, as already explained, in concluding that the applicant’s application to cross-examine the complainants and the witnesses should be refused, Zahra DCJ accepted that it was reasonable to assume that all of them had had access to the adverse publicity which his Honour described. The extent of the communication between them and the nature of the allegations which they had advanced in the complaints they had made before the 2010 publicity, when compared to what was described about the applicant’s acts in that publicity, was also considered. There was no error in so approaching the application which his Honour had to determine.

The approach which his Honour took, proceeding on the basis that each complainant and witness had been exposed to this prejudicial publicity, taken at its highest, and comparing what was there revealed with what they had earlier complained of, involved no overemphasis of the importance of the fact that there had been prior complaints, as the applicant argued on appeal. To the contrary, in this case, the fact that such complaints had been made while the complainants were each children, years before they came forward to make complaints to police as adults, after the publicity which SM’s interviews generated in 2010, was of crucial relevance, given the questions of credibility and reliability thereby raised.

In BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532, the difficulty with pre-trial rulings as to admissibility sought on the issue of contamination, which require a trial judge to usurp the function of a jury, to whom such issues fall to be determined, was discussed at [66].

Jones v R [2014] NSWCCA 280 was another case where the trial judge had concluded that questions of concoction and contamination were relevant only to issues of credibility and reliability, which were jury questions, applying R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. At [88], Bellew J observed that Shamouil, as well as DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 and R v XY [2013] NSWCCA 121; 84 NSWLR 363, all supported the conclusion that, in a jury trial, it was not part of a judge’s function to assess and make his or her own findings as to the likely weight of evidence, or its likely acceptance or rejection by a jury. As to concoction and contamination, his Honour observed, at [90], that it was conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences, which are relevant to a determination of the probative value of the evidence by a judge, but that was not such a case.

Nor was this such a case, given the evidence of prior complaints.

In McIntosh v R [2015] NSWCCA 184, it was observed, at [46], that the concept of “concoction” suggests a deliberate fabrication of the evidence and that the term “contamination” may involve an unconscious process of suggestion being adopted. Thus, it was observed by Basten JA, at [47], that:

However, his Honour further observed, at [49], that:

That was the opportunity sought and refused in this case, the conclusion being reached by Zahra DCJ that contestable questions of credibility and reliability resting on the possibility of contamination or concoction were a matter for the jury. In the circumstances, that conclusion was well open.

Publicity of the kind here, extensive and adverse as it was, occurred years after the initial complaints were made. That gave rise to no inherent implausibility in the complaints which the complainants made as adults or in the evidence of the witnesses as to what had occurred when the complainants were children. Nor did it give rise to an inference of either concoction or of contamination of those complaints, by the various complainants. The possibility of exposure to post complaint publicity giving rise to unconscious contamination of what was later reported to police was a matter for jury assessment of the witnesses.

Undoubtedly the applicant had to make difficult forensic decisions at the trial. Even if the trials had been separated as the applicant sought, difficult decisions would have had to have been made in relation to questions of potential contamination and concoction.

Apart from the complaint the subject of count 10, the challenges to the complainants’ evidence failed.

The applicant’s case at trial was that the allegations against him were a fabrication and that the complainants and the tendency witnesses were not accurate, honest and reliable witnesses. The prosecution case depended on word against word and, for reasons advanced by reference to the evidence as to each complaint, it was submitted that the prosecution witnesses could not be believed. In the case of SM, it was submitted that she had done her best to destroy the applicant and that she hated him, not because he had ever acted inappropriately towards her, but because she was motivated to make money.

As to contamination and concoction, the applicant submitted that:

That submission was then developed in the context of the complaints each complainant had made against the applicant in childhood and subsequently. There were submissions which addressed the convergence of the accounts given by various witnesses and why it was that the detail of their evidence would not be accepted.

Directions were sought by the applicant in relation to contamination and concoction, by reference to documents marked MFI 113 and MFI 114. The Crown did not accept that there was evidence of contamination of the kind for which the applicant contended. MFI 117 was a document produced by the Crown, which summarised the evidence on contamination. It was accepted to be accurate.

His Honour raised with the applicant’s advocate the nature of the cross-examination of the complainants and other witnesses about the extracts from the Woman’s Day article and how the issue of contamination in summing-up needed to be directed to the evidence actually led. A further document dealing with “convergence” was then provided (marked MFI 120), which was also addressed. The directions to be given were addressed again, during another adjournment during the summing-up. Zahra DCJ indicated the directions he proposed to give and was addressed on whether the questions of innocent infection or unconscious influence were thereby adequately addressed.

The jury question concerning contamination is set out earlier. His Honour addressed that question when he summed up in the way he had discussed with counsel:

His Honour also explained the parties’ cases to the jury by extensive reference to the evidence of the various witnesses.

Redirections were then sought by the applicant’s advocate, who was also invited to put anything further which he wished to have entertained, in writing. He then produced another document (MFI 122), a flow chart, which he addressed on 3 April 2014. His Honour took up those matters of rumour, innuendo and convergence later in his summing-up, referring to the evidence of communications between SM and those who had produced the A Current Affair program, as well as the Woman’s Day article and those witnesses who had had access to it and had seen the interviews. The applicant’s advocate then raised some further matters, to which his Honour also returned, when the summing-up continued.

No further matters were then raised by the applicant’s advocate.

On appeal, it was argued that, despite all of this, the directions given in summing-up dealt inadequately with the risk that attitudes and memories could be affected by the volume, tone and force of information in the media, or by rumours and innuendo circulating in a closed community such as a school or workplace. It was also submitted that the directions his Honour had given had emasculated much of the argument which the applicant had put to the jury. Further, it had been suggested that it was the applicant who had a burden to prove that a witness had copied another’s allegations, before it was considered whether the witnesses’ evidence had been contaminated.

Such complaints were not raised at trial, where the applicant’s advocate was given, but did not pursue, yet a further opportunity to seek further redirection on such matters. They are, in any event, not criticisms of the summing-up which can be accepted, given the terms of his Honour’s summing-up earlier quoted, and the detailed summing-up by reference to evidence given by the various witnesses.

His Honour referred to what was in the public domain, by reference to the evidence led, connecting the evidence given by particular witnesses as to their exposure to, or involvement in, discussion of such material. As was accepted on appeal, the parties’ addresses and the summing-up each had to be directed to what was in evidence. Neither the Woman’s Day article nor the A Current Affair interviews were tendered, but witnesses had been cross-examined about the acts referred to in the Woman’s Day article and their involvement in discussion of that publicity and in the case of some witnesses, their exposure to earlier rumours.

The applicant’s advocate took up various opportunities to seek further directions, which were given, in part by reference to documents he produced. The complaints now advanced on appeal simply cannot, in the face of that approach by Zahra DCJ, be accepted as having a proper foundation.

Accordingly, grounds 1, 2, 6 and 12 are dismissed.

In May 2013, the Crown, in accordance with the requirements of the Evidence Act, s 97(1), served notice on the applicant indicating an intention to adduce tendency evidence against him. The notice was amended in July and September 2013 (I, 411), and again in February 2014 (III, 1940).

The tendency upon which the Crown sought to rely, as particularised in its final notice was as follows:

The Crown proposed to call 11 tendency witnesses: the five complainants; JP; SH; AK; EE and SM; LJ; VR and CS, each of whom had worked on the set of Hey Dad..! as wardrobe assistants; and VOD; AA and BB, each of whom had known the applicant through social or familial connections. The Crown sought to admit each complainant’s evidence as tendency evidence in relation to the counts pertaining to each other complainant, and the testimony of the six other witnesses as tendency evidence in relation to all the counts on the indictment.

In his tendency judgment, Zahra DCJ ordered that the tendency evidence sought to be adduced by the Crown be admitted, and that the trial relating to each of the complainants be heard together. Grounds 3 and 13 of the appeal, which challenge the latter ruling, will be discussed later in this judgment.

Two principal issues were raised on appeal in relation to his Honour’s determination that the tendency evidence was admissible:

Critical to the determination of the first issue, that is, whether the proposed evidence had “significant probative value”, were the following sub-issues:

For the reasons given below, the Court is of the view that his Honour did not err in his decision to admit the tendency evidence led by the Crown against the applicant. Ground 4 therefore fails.

The admissibility of tendency evidence is governed s 97(1) which provides:

“Probative value” is defined in the Dictionary to the Act as:

Section 101 provides an additional restriction in a criminal trial to the admissibility of, relevantly, tendency evidence, as follows:

The complainants’ tendency evidence, can be summarised as follows:

The tendency evidence of other witnesses included that of BB. She said that when she was aged 11 and attending her grandparent’s 90th birthday party at the applicant’s home, the applicant had put his hand under her shirt and then touched her breast, played with her nipples and then slipped his hand underneath the elastic of her jeans.

AA’s evidence was that when she was a young girl, while swimming in a pool with the applicant, he had swum up to her and started touching her breast. He also touched her between the legs, while asking her if she liked being tickled. She pushed him away and left and got changed. The applicant later also got changed and when she walked into the hallway, he had left his bedroom door open and she saw him standing naked, touching himself while standing in front of a mirror. On another occasion while staying over at his home he had started touching her breasts, after his daughter had left the room. He asked her if she liked him touching her, to which she responded “no”. He stopped when his daughter returned.

VOD also lived in the same street as the applicant and slept over at his house, while she was aged between 7 and 9 years, on occasions when SH was also staying. She said that the applicant often walked around without clothes on; that he had come into the room where they were sleeping while not wearing clothes; that he had walked around in the room; and that she had seen his genitals while he was in the room.

The evidence of LJ, a costume designer on the Hey Dad..! program, was that the applicant often had a sleep in his dressing room during breaks and that she had to wake him. He asked her to shake him, to make sure he woke. Initially, the applicant slept naked and draped by a sheet. However, on occasions LJ would find the applicant naked and uncovered, and she would call to him to wake up and leave the door open and he would quickly cover himself. He also made her uncomfortable by trying to grab her breast when hugging her and brushing past her, rubbing her with his genitals on her back or bottom.

The evidence of CS, who worked in the wardrobe department on the Hey Dad..! series was also that the applicant made her uncomfortable on occasions, by brushing past and making indirect sexual contact with her bottom or breast, with his genitals or hands. He would brush it off when she said “What are you doing?” On one occasion, while in his dressing room, he also exposed his penis to her, when he dropped his pants. He had pulled them up when she had said “What are you doing?”

The evidence of VR, who had worked as a wardrobe assistant on the series when she was aged 18 years, was that on one occasion the applicant had slipped his hand under her armpit, just near her breast. After the third such incident she considered that it had not been an accident and had felt very uncomfortable around him and kept her distance. She had to take clothes into his dressing room and, on occasions, wake him from a nap. On one occasion, he was naked from the torso up and on the next he was completely naked and she pulled up a sheet up to cover him. After the third occasion when she found him lying naked on his back, she reported what had happened to her boss.

Zahra DCJ at pp 6 – 7 of the tendency judgment, observed that:

His Honour noted that tendency evidence was necessarily inferential evidence, tendered to prove that because on a particular occasion:

Zahra DCJ then addressed the degree of similarity required as between the tendency evidence and the particular acts allegedly undertaken by the applicant. His Honour, at p 7, held that it was not necessary that the acts or state of mind the subject of the tendency evidence be “closely” or “strikingly” similar to the acts constituting the crime. His Honour cited Campbell JA’s judgment in R v Ford [2009] NSWCCA 306; 201 A Crim R 451, at [125], as follows:

Zahra DCJ expressed the view, at p 53, that there were a number of features of the evidence that involved “closely similar” conduct on the part of the applicant. His Honour also commented that, although there were differences in the sexual acts alleged against the applicant in the various counts and in the circumstances in which they were allegedly committed:

His Honour determined, at p 54, that the Crown had established that the proposed evidence established a pattern of behaviour that established the tendency for which the Crown argued, namely, a “tendency to take advantage of situations which arose where [the applicant] came into contact with young female children”. His Honour found that those situations included “situations which arose from social and familial relationships, and also included situations which arose in the context of work relationships” and “included those arising from social relationships between [the applicant’s] daughter and the complainants”.

His Honour, at p 54, considered the pattern of behaviour revealed by the evidence of the complainants was “manifest, if not striking”. His Honour held that the proposed evidence of all 11 witnesses was admissible as being capable of establishing that the applicant had a particular state of mind, that of “having a sexual interest in female children under 16 years of age”.

Zahra DCJ admitted the evidence of the complainants and the evidence of VOD, AA and BB as tendency evidence in respect of all counts on the indictment. However, his Honour limited the use of the proposed tendency evidence of VOD, AA and BB as being capable of establishing that the applicant had a particular state of mind, that is, a “sexual interest in female children under the age of 16”, and being capable of establishing that the applicant had a tendency to act in the following particular ways, namely, that the applicant:

His Honour restricted the admissibility of the evidence of the wardrobe assistants to count 11 (being the count relating to SM). His Honour held, at p 55, that the evidence of those witnesses was capable of demonstrating the following tendencies:

In his Honour’s view, there was no reasonable evidence of concoction or contamination that would produce a risk of prejudice or would significantly reduce the otherwise probative value of the evidence. In coming to this view, his Honour addressed four possible sources of contamination or concoction.

First, that the complainants AK and SM had corresponded between 29 March 2010 and 26 July 2010 by way of email. His Honour set out the content of those emails, and observed, at p 42, that they contained “no reference… to any particular sexual conduct of the [applicant]”. His Honour therefore held that the communication between AK and SH was limited in nature.

Secondly, his Honour addressed the impact of the awareness of LJ, CS and VR of rumours and allegations against the applicant. His Honour took the view, at p 43, that:

However, his Honour found that the fact a proposed witness had been exposed to such rumour did not necessarily give rise to a risk of contamination or concoction, and that there was no evidence of such a risk in this case.

Thirdly, Zahra DCJ addressed the possibility of concoction or contamination arising from media reporting. His Honour considered, at p 44, that, when determining whether a risk of contamination or concoction arose as a result of media coverage, it was “necessary to look with some precision as to what information was in the public domain at the time”. His Honour held that the relevant coverage “touching upon the nature of the sexual misconduct [of the applicant was] somewhat limited”. In light of the nature of this coverage, and the early and detailed complaints of the witnesses before the media coverage, his Honour held that even if exposed to all the relevant media information, the possibility that a witness’ evidence was concocted or contaminated was “no more than speculative”.

Finally, his Honour held that the contention that a possibility of contamination through indirect contact between SH and AK was, at its highest, also speculative.

His Honour further concluded that the probative value of the evidence substantially outweighed the danger of unfair prejudice arising from it.

The applicant contended that the tendency evidence was inadmissible on a number of grounds.

First, the applicant contended that the tendency particularised in the tendency notice at para 2(i) (see at [117] above), that is, having a sexual interest in female children under 16 years of age, was so broad as to encompass the entirety of the evidence in relation to each complainant and of itself insufficient for the tendency evidence to have significant probative value. In so submitting, the applicant relied on Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528, where, at [40], Hoeben CJ at CL held that “a tendency to have sexual urges was so general as to be meaningless”.

Secondly, the applicant contended that not every tendency detailed in the notice was relevant to each of the counts. In particular, the tendencies set out at para 2(ii) and (iii) of the notice, namely, that the applicant used “his social and familial relationships” and “his daughter’s relationship” with female children to obtain access to them “so that he could engage in sexual activities with them”, applied to counts 1-9 but had no application to counts 10 and 11. Conversely, the applicant submitted that the tendency detailed at para 2(iv) (see at [117] above), that the applicant used “his working relationship with females to utilise an opportunity to engage in sexual tendencies”, only applied to count 11 and for that reason did not have significant probative value in relation to counts 1-10.

Thirdly, the applicant submitted that the type of sexual conduct alleged in the tendency notice related to different counts in different ways. In brief:

The applicant submitted that when properly analysed, both the circumstances surrounding the sexual acts, and the acts themselves, were different in nature and not capable of being the subject of any alleged tendency.

The applicant placed emphasis on the following differences to contend that the evidence ought not to have been admitted, as it did not have significant probative value:

The applicant also complained that the trial judge failed to analyse the tendency evidence to determine whether each witnesses’ evidence had significant probative value and if so, in relation to what counts. In this regard, the applicant relied upon authorities where attention has been given to whether there were similarities in the evidence such as to give the evidence significant probative value: see BP v R; R v BP [2010] NSWCCA 303 at [108]; KJR v R [2007] NSWCCA 165; 173 A Crim R 226 at [3]; DAO at [180]; Doyle v R; R v Doyle [2014] NSWCCA 4 at [148] and Sokolowskyj at [43].

The applicant submitted that having regard to what was said in those cases, it was appropriate, in determining whether evidence was admissible as tendency evidence, to have regard to:

The applicant further submitted that there was such a risk of concoction or contamination of the evidence that the proposed tendency evidence ought to have been rejected as not having significant probative value, or as not having satisfied the test in s 101. The applicant submitted to the trial judge that there was a real risk of contamination or concoction arising from several overlapping features, as follows:

The Crown submitted that there was no basis for finding error in his Honour’s determination. The Crown referred to the analysis of the evidence undertaken by his Honour and his assessment of the evidence in accordance with the legal test for its admissibility as tendency evidence. The Crown contended that his Honour “undertook the evaluative and predictive task required [by s 97] and determined that there was an underlying pattern”. The Crown further contended that his Honour considered the relevance of the evidence to each count on the indictment. The Crown submitted that this determination was open and that his Honour’s reasoning did not reflect an error of principle.

It was not suggested by either party that his Honour erred in his references to authority. However, given the challenge to his Honour’s ruling that the evidence was admissible, it is appropriate to refer to the case law concerning the proper construction of s 97 and s 101. It can also be instructive to understand how s 97 has been applied in various factual circumstances. For that reason, we propose to consider the case law in some detail. In doing so, we emphasise that a court’s task is, in each given case, to apply the statutory test of admissibility to the particular evidence that is sought to be adduced as tendency evidence in relation to the crime of which the person is charged.

There are three matters that call for consideration. The first is what the phrase in s 97, “evidence that a person has a tendency to act in a particular way or to have a particular state of mind”, means. The second is the meaning of significant probative value in s 97(1)(b). As explained below, the first and second of these matters are interrelated. The third is what is involved in the judicial task required by s 101 in determining whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

It needs to be understood at the outset that evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject of the charge or charges: see Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124] per Simpson J. This was explained in Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359]:

In FB v R; R v FB [2011] NSWCCA 217 Whealy JA (Buddin and Harrison JJ agreeing) observed, at [23], that:

It is appropriate to commence with an understanding of the meaning of the defined term “probative value”. In Shamouil, Spigelman CJ (with whom Simpson and Adams JJ agreed) said in relation to the definition in the Evidence Act of “probative value”:

The question of the meaning of significant probative value was dealt with by a five judge bench of the Court in DSJ. That case involved the admissibility of coincidence evidence pursuant to the Evidence Act, s 98, which, in terms of the section, involves an assessment of similarities. Such evidence must also have significant probative value to be admissible. The Court accepted the meaning given to “significant” in Lockyer, where Hunt CJ at CL, who, having observed that the definition of “probative value” was substantially similar to the definition of “relevance” in the Act, stated at 459:

In DSJ, the Court dealt with what was required in the judicial task of evaluating whether the evidence had significant probative value. Bathurst CJ stated at [10]:

In making these observations, the Chief Justice endorsed the approach to that evaluation suggested by Whealy JA at [78]-[81]. The essence of that approach was stated by his Honour, at [78], as follows:

The New South Wales authorities have not accepted that it is necessary, for evidence to be admissible as a “tendency” that it exhibit, to use the language of the common law relating to similar fact and propensity evidence, “underlying unity”, “a modus operandi” or a “pattern of conduct”: Velkoski v The Queen [2014] VSCA 121 at [171]. As Basten JA (Fullerton and R A Hulme JJ agreeing) said in Saoud v R [2014] NSWCCA 136; 87 NSWLR 481, at [40], “such language … may provide little guidance in applying the current statutory test”. Rather, the admissibility of tendency evidence requires that it have “significant probative value”.

The extent and nature of any similarity is nonetheless relevant to that question, as was articulated by this Court in Ford. That case concerned a Crown appeal under the Criminal Appeal Act, s 5F from a ruling as to the admissibility of the evidence of two complainants as tendency evidence. The accused had originally been charged in a single indictment with one count of sexual assault without consent and two counts of indecent assault. The offences were alleged to have been committed against three complainants, each of whom at the time of the offence were staying at the offender’s house after attending a party, were asleep and had consumed a significant amount of alcohol.

The count of sexual intercourse without consent (the sexual assault count) was severed from the two indecent assault counts. The accused was convicted on both indecent assault counts. The Crown then sought to admit evidence of the indecent assaults as tendency evidence in respect of the sexual assault count. The tendency relied on by the Crown was that the accused had:

In a pre-trial ruling, the evidence was rejected on the basis that it was not sufficiently similar. The trial judge considered that:

This approach was held to be erroneous. Campbell JA (Howie and Rothman JJ relevantly agreeing), identified, at [38], that one of the two serious errors made by the trial judge was:

His Honour continued, at [41]:

Campbell JA observed, at [44], that although the evidence of the complainants in the indecent assault trial would not suffice to make out the charge concerning sexual intercourse without consent, a jury could justifiably take the view that it increased the probability of the evidence concerning the elements of sexual intercourse charge being correct, and thus possessed significant probative value as required by s 97(1)(b).

Campbell JA further observed, at [52], that:

Relevantly to the issue in this case, as to the relationship between similarity and significant probative value, Campbell JA stated:

His Honour’s approach was applied in PWD, where the accused, the music master and principal of a Catholic boarding school, was charged with 10 counts of sexual misconduct against four boys. The prosecution sought to adduce evidence of the four complainants, and a further two witnesses of sexual conduct by the accused as tendency evidence admissible on all counts. The sexual conduct described by each complainant was different, both as to the type of sexual act and the seriousness of the alleged conduct. The trial judge, in a pre-trial ruling, ordered that the counts on the indictment relating to each of the complainants be severed on the basis that, as the acts and surrounding circumstances constituting the several offences were so different, the tendency evidence lacked significant probative value (at [4]-[6]).

The Crown case expressly eschewed a case of striking similarities, but contended that there was a “pattern of behaviour, modus operandi, system or pattern and common threads (the pattern) in the respondent’s conduct” (at [35]). The alleged pattern or modus operandi was that:

A feature of the alleged tendency, in the context of the accused’s position of authority, was:

This Court held that the evidence was admissible as tendency evidence and ordered that the counts on the indictment be tried together, stating, at [79]:

The same approach was taken in BP. After stating that incidents relied on as tendency evidence did not have to be closely similar to the circumstances of the alleged offence, nor did there have to be striking similarity, Hodgson JA (Price and Fullerton JJ agreeing) further observed, however, at [108], that “generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value”. In DAO, at [180], Simpson J observed that:

In Doyle, where the accused was charged with 39 offences against five complainants, the tendency sought to be proved was threefold: to have a sexual interest in young male employees; to engage in sexual activities with young male employees; and for the accused to use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them. There were then particularised 29 different types of conduct that were said to demonstrate those tendencies. Some of those tendencies were ordinary incidents of employment, such as giving young male employees and members of their family free admission to films at the cinema complex where they were employed. Other conduct was sexual conduct. Not all the conduct related to each complainant or each charge.

Although the challenge in Doyle in relation to tendency evidence was to the directions given to the jury, the following observations of Bathurst CJ are pertinent:

Thus, in summary, the law in this State is that whether the Court thinks that evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence.

In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that “the nature of the similarities will depend very much on the circumstances of the case”.

The critical point made in these authorities is that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged. There only needs to be a “tendency … to act in a particular way” (s 97(1)) relevant to the conduct subject of the charge. Relevance is determined by reference to the Evidence Act, s 55, that is, evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

When regard is had to the inferential nature of tendency evidence and the requirement that it be relevant evidence, it is apparent that tendency evidence is not only directed to the particular type of conduct that constitutes an element of the charge. There is a wide range of evidence relevant to the determination of the guilt of a person of a particular crime. When the question of admissibility of tendency evidence arises the question is whether conduct said to exhibit a tendency allows, by an inferential process of reasoning, that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is the subject of the charge or charges: see Gardiner at [124] per Simpson J.

The applicant referred to Velkoski in support of his submission that the tendency evidence adduced in this case did not satisfy the requirements of s 97. In Velkoski, the Victorian Court of Appeal, although not concluding that PWD was “plainly wrong”, nonetheless approached the question of what was necessary for evidence to be admitted as tendency evidence in terms different from the approach taken in New South Wales in the cases discussed above. According to the Court (Redlich, Weinberg and Coghlan JJA), at [164]:

While the Court recognised that “striking similarity” is not a condition of admissibility for tendency evidence, it held, at [171], that:

For the reasons we have given, we do not accept that the language used by the Victorian Court of Appeal represents the law in New South Wales. We recognise, however, that although s 97, unlike s 98, does not use the language of similarity, the greater the similarities, the more readily will a court find that that the evidence has significant probative value. Nor, as we have already examined above, does s 97 require that there be an “underlying unity”, a “pattern of conduct”, or the like. That is the language of the common law relating to similar fact evidence.

Section 101(2) provides that tendency evidence cannot be used against a defendant in a criminal trial, unless its probative value substantially outweighs its prejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2). see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirby and Schmidt JJ agreeing) stated in DAO at [170]:

The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74 at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:

As is the case with s 97, the “no rational explanation” test as held in Pfenning v The Queen [1995] HCA 7; 182 CLR 461 no longer reflects the appropriate consideration of the matters to be balanced under s 101(2): see Ellis at [95]-[96]. As Campbell JA stated in Ford, at [64]:

In Sokolowskyj, the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that “[t]he concept of ‘prejudicial effect’ is understood in substantially the same way as ‘unfair prejudice’”, as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the “prejudicial effect” the evidence “may have on the defendant” (emphasis added). In DAO, Simpson J considered, at [171], that such terminology meant that:

This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial.

Leaving aside for the moment the question of risk of contamination or concoction, we consider that the trial judge was correct in his understanding of the tendency evidence and his assessment of it as having significant probative value, for the very careful reasons he gave.

As set out above, at [149], the applicant’s first and, in effect, essential complaint was that the tendency asserted by the Crown was so general as to be meaningless. This was said to be particularly so with respect to the first alleged tendency, “having a sexual interest in female children under 16 years of age”. The applicant contended that much of the evidence related to differing circumstances in which the alleged acts took place, and that the alleged sexual acts were themselves dissimilar.

There is no doubt that the tendency evidence in this case was admitted on a basis that allowed dissimilar circumstances and dissimilar acts to be used in respect of different counts. That is relevant to the assessment of whether such evidence has significant probative value. But the fact of dissimilarity of itself may not be determinative. Much will depend upon what the dissimilarities relate to. Sokolowskyj is an example where the dissimilarities were such that the evidence was not properly characterised as tendency evidence.

By contrast, Doyle raised similar considerations to the present case. The Crown’s case on tendency contended that there were two essential tendencies: to have a sexual interest in female children under 16 years of age; and to engage in sexual conduct with female children under 16 years of age. Those tendencies were exhibited in three different, but not significantly disassociated, contexts: of social and familial relationships; his daughter’s relationships with her young friends; and the work environment.

These dissimilarities are obvious on their face. However, what was common to them all was that they represented occasions on which young females were present and the applicant used those occasions for the purpose of engaging in sexual activities with them.

The same may be said of the dissimilarity in the sexual conduct alleged in the various counts. However, notwithstanding the dissimilarities, the conduct alleged was sexual in nature, directed towards young females, on occasions that presented themselves to the applicant. Underlying the similarity was that the conduct was, in effect, referable to the circumstances as they presented to the applicant. In short, the conduct occurred opportunistically, as and when young female persons were in the applicant’s company.

In those circumstances, the evidence underpinning the tendency notice quoted at [117], which described the alleged tendency in the five paragraphs which identified, in detail, the various aspects of the tendency sought to be relied on, was correctly assessed as having significant probative value.

There is a question whether the possibility of concoction or contamination is even a relevant consideration in determining whether evidence has significant probative value. There are numerous cases on this question. It is necessary to refer only to BJS, which his Honour applied as well as Jones and McIntosh.

In BJS, to which we have already referred at [89] – [90], the Court was concerned with the tests posited in both s 97 and s 101 for the admissibility of tendency evidence. Basten JA, at [23], pointed out that the common law “no rational explanation” test was inapplicable both in respect of s 97 and s 101. His Honour at [27], also approved as “unimpeachable” a statement in FB as follows:

The manner in which the risk of contamination and concoction should be dealt with is addressed in the cases of Jones and McIntosh, to which we have already referred, at [94] – [97]. It may be that Basten JA’s remarks in McIntosh at [47] and [49] are to a different effect than his remarks in BJS. We do not, however, see them as inconsistent with Jones, which has been substantially endorsed in DJW v R [2015] NSWCCA 164. However, it would be a distraction in this case to analyse the nuances of the various authorities on this question, given Zahra DCJ’s finding at p 55, which, on our consideration of the evidence was well based, that the Crown had excluded:

His Honour took the view, at p 52, that there was no reasonable evidence of contamination or concoction that would produce a risk of prejudice or would act to reduce the otherwise significant probative value of the tendency evidence. In any event, to the extent that his Honour, at p 8, applied the approach in BSJ, that approach was favourable to the applicant.

We have already examined in detail the complaint made in grounds 1 and 2 as to the risk of contamination and concoction. That reasoning also applies to this aspect of the applicant’s complaint. We would only add at this juncture that, as his Honour pointed out, at p 52, there was no evidence of a motive for any of the complainants or the tendency witnesses to concoct an account of the alleged conduct. Significantly, each of the complainants complained at or about the time they alleged the conduct occurred or, at least, at a time well before the allegations came into the public domain:

Importantly, where complaint was made to the police, that occurred without reference to other witnesses. Further, as his Honour observed, at p 53, it is speculation to consider that the complainants were emboldened by the media publicity and thereby motivated to give a false account. The prior complaints and the detail in which those complaints were given belie the applicant’s submission in that regard.

Whilst it was true that SM received payment for engaging in the media interviews, we agree with Zahra DCJ that that raised, at the most, a possibility of concoction. Even that possibility is marginal, given that, years before the media interviews, SM discussed the massaging incidents with SB many times and at the time of the exposure incident, she told SB about it immediately. SM also made other contemporaneous complaints, as set out above at [126].

It follows that the applicant’s submissions in relation to whether the tendency evidence had significant probative value should be rejected. His Honour was correct in concluding as he did, that the evidence had significant probative value.

The applicant contended that Zahra DCJ erred in that he regarded the fact that the prosecution had excluded the reasonable possibility of concoction as “determinative” of the balancing exercise under s 101. This submission misconstrued his Honour’s reasoning. In making his determination under s 101, his Honour outlined his factual finding that no reasonable possibility of concoction existed and then observed, at p 55:

His Honour also concluded, at p 55, that the significant probative value of the evidence substantially outweighed any prejudicial effect. When regard is had to the meaning of “prejudicial effect” for the purposes of s 101, then, given his Honour’s assessment that there was no reasonable evidence of concoction or contamination, his Honour’s conclusion was open. That is different from saying that his Honour regarded the fact that the prosecution had excluded the reasonable possibility of concoction as “determinative” of the balancing exercise under s 101. To so assert effectively amounted to a contention that his Honour did not carry out the balancing exercise. That is not borne out by his Honour’s express determination at p 55.

The applicant further contended that his Honour fell into error in failing to have regard to:

This contention may be disposed of briefly. In the way the applicant’s proposition was framed, it appeared to suggest that Zahra DCJ was required to assess the risk of unfair pre-trial publicity independently of the question of whether the tendency evidence had significant probative value. If that is what the applicant contended, it is not correct. What has to be balanced is the probative value of tendency evidence as compared to its prejudicial effect on the accused person. On the applicant’s case, the impact of the pre-trial publicity was integral to the assessment of the probative value of the tendency evidence because of the real risk of concoction and contamination. His Honour held that there was no such risk. In the balancing exercise it was not then necessary to consider unfair prejudice of the pre-trial publicity, separately from and unassociated with the assessment of the probative value of the tendency evidence.

If the complaint was in truth that Zahra DCJ did not consider the pre-trial publicity by assessing the danger of unfair prejudice to the applicant, that must be rejected. His Honour’s judgment shows that the publicity was considered in that way.

We have already referred to the approach Zahra DCJ took to the impact of the pre-trial publicity, which included that generated by SM, on the risk of concoction and contamination.

As we have already pointed out, however, his Honour’s conclusion that there was no real risk of contamination was well based. To the extent the fact of animus may have impacted on the ability of the applicant to have a fair trial, his Honour’s directions to the jury dealt adequately and appropriately with this question. Although in having regard to those directions we have looked at the matter from the perspective of hindsight, it reinforces the observations of Simpson J in DAO at [171] to which we have referred.

We will deal with this submission in the context of Ground 5. This, too, was not made good for the reasons there discussed.

Accordingly, Ground 4 is dismissed.

As we have dismissed ground 4, ground 3 should also be dismissed. Both parties considered grounds 3 and 4 to be co-dependant, and addressed these grounds together in their submissions.

Zahra DCJ also treated these issues as being interdependent in his tendency judgment. His Honour held that the applicant’s application for separate trials was:

His Honour also held that “the question of the admission of tendency reasoning is critical to the determination of the application for severance of the counts involving the complainants”.

There was no challenge to his Honour’s reasoning on this issue. It also follows that ground 13 should be dismissed.

Grounds 3 and 13 are thus also dismissed.

This ground may be dealt with briefly, in light of the Court’s reasoning in relation to ground 4.

Zahra DCJ first directed the jury on tendency evidence during the course of that evidence being given. This direction was given following consultation with and the agreement of both parties. Further written directions were also provided to the jury, which is Honour recited during his summing-up.

His Honour’s directions were extensive and we do not propose to set them out in full. In brief, his Honour, in accordance with his judgment on the admissibility of tendency evidence, directed the jury as to which witness’ evidence could be used for the purpose of establishing the respective tendencies alleged by the Crown in relation to the separate counts on the indictment.

His Honour then directed the jury that the evidence could only be used to prove a tendency of the applicant to act in a particular way or with a particular state of mind if they were satisfied:

His Honour’s directions also warned the jury that they must be “concerned with the particular and precise occasions alleged by each of the complainants in relation to each count”.

The written directions given by his Honour substantially replicated the Criminal Trial Bench Book recommended directions on tendency evidence.

The applicant contended that his Honour, in giving the directions he did, erred in the following respects:

The applicant’s first and second contentions are predominately addressed by this Court’s finding that his Honour did not err in admitting the evidence on the grounds the subject of those contentions. As outlined at [195], although the evidence involved dissimilar acts and circumstances, there were two essential tendencies, one being that the applicant had a sexual interest in female children under the age of 16, making his Honour’s direction to that effect appropriate. Further, as stated at [196] – [199], although it was accepted that there were some dissimilarities in the tendency evidence, as we have explained, dissimilarity is not determinative. There was no error in the directions given to the jury.

The applicant’s third argument related to his Honour’s direction that the evidence of LJ, CS and VR could be used to establish that the accused “engaged in touching in an inappropriate sexual way but maintaining the contact was inadvertent or accidental”. The applicant contended that his Honour’s direction was misconceived “because none of the wardrobe assistants described the applicant engaging with them in sexual activities”. This submission is not borne out by the evidence. LJ, CS and VR each gave evidence of the applicant touching them in an inappropriate sexual manner:

Contrary to the applicant’s assertion, the submission was misconceived, not the trial judge’s direction.

The applicant’s fourth submission related to the direction given in respect of the use that could be made of the evidence of LJ, CS and VR in respect of count 11. The applicant submitted that his Honour erred in that he “should have given a strong direction that the jury could not use their evidence in relation to any other count on the indictment”. However, when considered as a whole, his Honour’s written and oral directions to the jury were clear that the evidence of LJ, CS and VR could not be used in consideration of counts 1 to 10.

In addition, his Honour directed the jury, at the time the evidence was led, that “the matters that these witnesses refer to are not the subject of any count in the indictment” and that the jury “must ultimately be satisfied considering each count on the indictment separately”. This direction was correct and adequate. A direction in stronger terms was not required.

The applicant needed leave to raise this ground of appeal, as no complaint was made at trial as to the inadequacy of the directions, nor was any request made for further directions or any redirection to be given to the jury: Criminal Appeal Rules, r 4.

In Jubraeel v R [2015] NSWCCA 131, Macfarlan JA observed:

The applicant has failed to establish the matters of which he complains. In those circumstances, leave to raise ground 5 should be refused.

Because these grounds are derived from the conduct of the Crown prosecutor in the latter stages of the trial, it is convenient to deal with them together.

A chronological sketch of the salient events in court is as follows.

The applicant was called to give evidence in the defence case on the morning of Thursday 20 March 2014.

His cross-examination by the Crown prosecutor commenced in the afternoon of Friday 21 March 2014. After a time, the applicant’s advocate made an objection, and there was discussion between his Honour and the advocates in the absence of the jury. The nub of the complaint was that the questions being asked by the Crown prosecutor were suggestive of a reversal of the onus of proof, in that the applicant was allegedly being asked to express a view or opinion as to why each complainant had given their version of events, or indeed why they might have lied.

The cross-examination recommenced, and again after a time there was another objection that was discussed in the absence of the jury. The nub of the complaint on this occasion was that, in recounting large “slabs” of evidence given by the complainants during the trial within the questions being asked of the applicant, the Crown prosecutor was asking the applicant to prove a motive for the making of allegations against him. The cross-examination recommenced. Thereafter the trial adjourned for the weekend.

On the morning of Monday, 24 March 2014, the applicant’s advocate provided his Honour with written submissions about assertedly inappropriate portions of the cross-examination of the accused. Discussions occurred in the absence of the jury. To summarise them, it was asserted that the recital of the evidence of each complainant by the Crown prosecutor had the practical effect of placing the applicant in the invidious position of seeking to explain why a particular complainant had given that evidence; that the questions themselves, and the way that they were being framed by the Crown prosecutor, had no relevance or probative value; and that, as a result of the recital of the evidence by the Crown prosecutor, the applicant was able to provide only affirmative answers that were suggestive of his acceptance of the truth of the allegations made by the complainants.

During the course of the applicant’s cross-examination on 24 March, his Honour gave the following directions to the jury:

The cross-examination concluded on Monday 24 March 2014. The applicant’s advocate then re-examined the applicant briefly.

The final address of the Crown prosecutor commenced on Thursday 27 March. It concluded (one can infer from his Honour’s remark to the jury that “there’s half an hour to go”) at about 3:30 pm that day. The jury was asked to return to court on the following Monday, giving rise to a three day break in the involvement of the jury in the trial.

Neither before nor after the departure of the jury on 27 March was any application made by the applicant’s advocate to his Honour before the court adjourned for the day.

The court reconvened the following day, Friday 28 March. As we have said, the jury was then not present in either the court room or the courthouse. The applicant’s advocate immediately made an application for the discharge of the jury, upon two bases. The first was “impermissible comments made by the Crown Prosecutor and her final address”. The second basis was “extraordinary prejudicial media reporting last evening” on a particular television station.

The applicant’s advocate said that the remarks of the Crown Prosecutor were:

As for the media reporting, the television transmission was played before us. In a nutshell, it spoke of the possibility that, if convicted, the applicant would be sentenced to imprisonment for many years. A noteworthy aspect of the telecast was that some at least of it showed a reporter speaking to the camera in front of a prison.

Thereafter, the applicant’s advocate provided his Honour with a schedule of the particular matters in the Crown prosecutor’s final address that founded his application. It featured over 60 portions of the final address which do not need to be analysed further, because a refined and less extensive schedule was contained in the written submissions of the applicant in this Court. His Honour then received detailed submissions from the applicant’s advocate and the Crown prosecutor, and reserved his decision about whether to discharge the jury until the following Monday.

In a judgment dated 30 March, delivered on 31 March, his Honour refused to discharge the jury, but indicated that he would give some firm directions to the jury about aspects of the Crown’s final address.

On Monday 31 March, the transcript does not record any discussion of the question of a discharge between his Honour and the parties in the absence of the jury. Nor is there any reference to there being a separate transcript of the judgment of his Honour refusing the discharge. Still, one can infer that his Honour refused to discharge the jury on the Monday morning, and communicated that to the parties in open court. After other aspects were discussed briefly, the final address of the applicant’s advocate commenced. That address concluded late in the afternoon of Monday 31 March.

His Honour commenced to sum up “late in the day” of the same day. There, his Honour said:

Very soon afterwards, the trial adjourned for the day.

The summing-up continued for some days. It concluded on Thursday 3 April, when the jury retired to consider its verdicts shortly before midday. No further application was made by the applicant’s advocate for a discharge based on any aspect of the conduct of the Crown prosecutor; nor was any redirection sought at any stage by the applicant’s advocate from his Honour altering or expanding upon anything that appears in the extract from the summing-up that we have provided above.

Senior counsel helpfully provided a table of extracts from the final address of the Crown prosecutor said to be inappropriate. It is convenient to reproduce that table in its entirety.

As well as that, it was said that the wrongfulness of what had occurred in cross-examination was as follows. The nub of the complaint was that the Crown prosecutor had engaged in conduct that “inflamed” the emotions of the jury, thereby causing them to act in an improper and prejudicial manner. In short, it was submitted that, in directing the applicant in cross-examination to the evidence of the complainants in some detail, the Crown prosecutor was inviting the accused to explain why the complainants had given that evidence. In other words, the Crown prosecutor was pressing to have the applicant suggest that the evidence of the complainants was untrue.

In oral submissions before us, senior counsel for the applicant explained that the cross-examination, bearing in mind the firm directions given by his Honour half-way through it, did not give rise to a miscarriage of justice of itself. Rather, it was a factor to be taken into account when the cumulative effect of all the factors in the trial that should have, in his submission, led to a discharge were considered.

In short, it was submitted it was not a matter of looking at each individual asserted failing seriatim, devoid of context. Rather, it required the asserted wrongs in the cross-examination to be analysed, together with the asserted wrongs in the final address; the context of a trial of allegations of child sexual assault with many complainants; a vast amount of publicity before and during the trial; the particular publicity on the television station that occurred a few hours after the final address of the Crown prosecutor concluded; and, finally, the delay of three days between the offending remarks in the final address of the Crown prosecutor and the giving of the directions about them in the summing-up.

In all of these circumstances, it was said that nothing less than a discharge of the jury could have avoided a miscarriage of justice, and that the directions finally given by his Honour were simply inadequate to do so.

In oral submissions, it was accepted that it would be objectionable for a cross-examiner to use questioning of an opposing party merely to repeat, for tactical reasons, the details of the evidence in the cross-examiner’s case. But it was said that that did not happen in the applicant’s cross-examination.

As for the Crown’s final address, it was accepted that there were “aspects of the Crown’s address that your Honours would no doubt censure”. But it was said that the Court would not be satisfied that those aspects of the final address would have caused the jury to refrain from a “rational consideration of the evidence”.

In short, it was said that in light of the firm directions given by his Honour, both during cross-examination and at the start of his Honour’s summing-up, no miscarriage of justice had occurred.

It is convenient to begin with some basic principles governing the conduct of persons appearing as an advocate for the Crown in a criminal trial. Although what we have to say applies equally to private counsel and solicitors appearing in such a role, for convenience we shall use the term Crown prosecutor to describe such a person.

First, the Crown prosecutor has a special role that combines that of an advocate contending for a cause in adversarial proceedings with that of a Minister of Justice: see Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at [54] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); and McCullough v The Queen (1982) 6 A Crim R 274 at 285. In that fundamental sense, the role of a Crown prosecutor is different from that of a counsel appearing for a plaintiff, who bears the onus of proof in civil proceedings, and from that of accused’s counsel in criminal proceedings.

Secondly, a Crown prosecutor should never use language designed or calculated to inflame the jury: see Livermore v The Queen [2006] NSWCCA 334; 67 NSWLR 659 at [24].

Thirdly, a Crown prosecutor should take special care not to use such language when the subject matter of a criminal trial has an inherent tendency to cause the jury to react emotionally to the evidence in the Crown case. Examples that spring readily to mind are trials of horrific murders and trials of allegations of child sexual assault, crimes for which the community reserves a special abhorrence.

Fourthly, a Crown prosecutor is not prohibited from forcefully and firmly putting the prosecution case to the jury: see McCullough at 285; and R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 at [52] (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed). Nor is a Crown prosecutor prohibited from utilising rhetoric: see Libke v The Queen [2007] HCA 30; 230 CLR 559 at 600 (Heydon J). Nor is a Crown prosecutor prohibited from firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable.

Fifthly, on the other hand, the Crown prosecutor must not belittle or ridicule either an accused person, or his or her evidence, or his or her case: see Livermore at [31].

Sixthly, a Crown prosecutor should especially eschew advocates’ tricks designed to curry favour with the judge and especially with the jury, or to gain an ulterior advantage: see Wood v R [2012] NSWCCA 21; 84 NSWLR 581 at [605] (McClellan CJ at CL, with whom Lathan and Rothman JJ agreed). An example of what may be described as an advocate’s trick, (there are many, regrettably), is asking a question in the presence of the jury that one believes or knows will be the subject of a successful objection merely in order to force that response from one’s opponent, and to cause the jury to reflect upon the subject matter of the question that will remain unanswered.

Seventhly, the conduct of a Crown prosecutor in a criminal trial can of itself lead to a miscarriage of justice, that can found a successful appeal against conviction: see Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 663-4 (Deane J).

Eighthly, speaking generally, no advocate in criminal or civil proceedings should place his or her personal opinion before the tribunal of fact or law, because it is irrelevant: see KNP v R [2006] NSWCCA 213 at [53] (McClellan CJ at CL, with whom James and Hall JJ agreed); R v Liristis [2004] NSWCCA 287 at [95] (Kirby J, with whom Studdert J and Hislop JJ agreed); and Rugari at [60].

Ninthly, speaking generally, every advocate in criminal or civil proceedings is entitled to mount a firm attack on the evidence and submissions (with regard to matters of both fact and law) placed before the court by his or her opponent. Great care should be taken, however, to ensure that a personal attack is not made upon one’s opponent himself or herself, unless there are very sound bases for doing so.

Tenthly, the determination of grounds such as these is very much a matter of this Court analysing exactly what was said or done, and considering it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge: see, for example, KNP.

It is convenient now to apply those principles to the specific matters that found these grounds of appeal.

Turning to the cross-examination of the applicant first, it will be recalled that the jury had heard from very many complainants and tendency witnesses about the alleged sexual crimes of the applicant and the context in which they occurred. It was not inappropriate for the Crown prosecutor to cross-examine the applicant about each allegation, and to question him about his response to it. By that we mean, it was not inappropriate to take the applicant to a particular allegation of a particular complainant, and to ask him, for example, whether his position was that it never happened; or that something of that nature did occur, but that it had been misinterpreted as having a sexual connotation; or that something of that nature did occur, but he had in fact touched a different and unremarkable part of the complainant’s body.

Of course, it is well established that no accused may be asked explicitly or implicitly why a complainant would lie about an allegation of sexual offending, and a jury may not be asked by a Crown prosecutor to reflect on the same question, whatever the nature of the allegation: see Palmer v R [1998] HCA 2; 193 CLR 1 at 7 (Brennan CJ, Gaudron and Gummow JJ). Indeed, speaking more generally, it is well established that one witness cannot be asked to comment on the evidence of another witness, in the sense of being asked to provide an explanation as to why he or she considers that it differs from the evidence of the witness being questioned. Apart from anything else, that is lay opinion evidence that is inadmissible.

As well as that, it would be an advocate’s trick to direct a witness to the evidence of another witness (or indeed to his or her own evidence in re-examination) in circumstances in which the directing question itself is deliberately designed, by way of its detail or extent, to constitute a repetition upon the mind of the jury of the evidence that supports the case of the questioning party.

Here, the applicant was repeatedly taken to the evidence of various complainants, and asked what his position was about the events that they alleged had occurred. That was an aspect of cross-examination that was entirely to be expected; indeed, it was almost inevitable. We do not consider that the way the questions were asked gave rise to an explicit or implicit reversal of the onus of proof. Nor are we satisfied that the terms of the directing questions themselves were an advocate’s trick inconsistent with the obligations of the Crown prosecutor. Finally, it is to be recalled that, before the cross-examination had concluded, his Honour gave the jury a detailed direction about their approach to the subject matter of these questions, and explicitly informed the jury that the cross-examination by the Crown prosecutor of the applicant about what the complainants had said had not the slightest effect upon the onus of proof.

In short, we consider that the questions complained of in the cross-examination of the applicant do not establish that a miscarriage of justice occurred in this case.

We turn now to the aspects of the final address of the Crown prosecutor in the order in which they appear in the table, which is extracted above.

As for the first matter, we do not consider it inappropriate for a Crown prosecutor to characterise the evidence of an accused person as “inherently unreliable”. We also interpret the use of the word “incredible” in this context as meaning “incapable of belief”. There is nothing exceptionable about such a submission.

As for the second matter, the point being made was that the offences had allegedly been committed brazenly, perhaps so brazenly that a tribunal of fact may be reluctant to accept that they occurred at all. The Crown prosecutor was entitled to address the jury to seek to dispel any such reaction. But there was no call for the use of the word “depravity”, which is loaded with emotional connotations, and the Crown prosecutor should not have used it.

As for the third matter, it was open to the Crown prosecutor to place before the jury the proposition that sexual assault does indeed occur in the Australian community. Having said that, the emotive word “horrible” should not have been used.

As for the fourth matter, it was open to the Crown prosecutor to ask the jury to reflect in due course upon whether the submissions of applicant’s counsel had any real substance.

As for the fifth matter, it was open to the Crown prosecutor to submit that the jury should reject any proposition that there had been a conspiracy in existence to implicate the applicant falsely. It would also have been open for the Crown prosecutor to submit that the question of a conspiracy was, on the evidence, a distraction. It was also open to use a colloquialism for a distraction or false path, namely, a “red herring”. But we consider that it was inappropriate for the Crown prosecutor to submit that there was a possibility that a putative submission of the applicant’s advocate was “actually just there to distract you”. That was open to interpretation by the jury as being an attack upon the person and motives of the applicant’s advocate himself, and not upon his predicted submissions.

As for the sixth matter, it was open to the Crown prosecutor to submit that the jury would find that the applicant was attempting to distance himself from the complainants, and was doing so “desperately and artificially”.

As for the seventh matter, it was open to the Crown prosecutor to describe the evidence of the complainants about why they did not complain immediately as “compelling”, and to quote what one of the complainants had said about that. But in the context of a discussion of the effect of sexual assault upon young children, the emotive word “haunting” should not have been used.

As for the eighth matter, there can be no complaint about the Crown prosecutor submitting that, on her case, the applicant had got away with his crimes for years, and had developed an attitude of confidence and brazenness as a result.

As for the ninth matter, it was not inappropriate for the Crown prosecutor to remind the jury that the actions of the media were not to be the object of their verdicts, but rather, they were concerned with the asserted actions of the applicant.

As for the 10th matter, a reference to a child being of “tender age”, although a little old-fashioned perhaps, is not exceptionable.

As for the 11th matter, there can be no complaint about the Crown prosecutor submitting that the jury would confidently return verdicts of guilty based upon the evidence of the complainants themselves; that that evidence was “utterly convincing”; and that the evidence was “disturbing”.

As for the 12th matter, there can be no complaint about the Crown prosecutor reminding the jury that the women who gave evidence were not the girls whom the Crown prosecutor submitted the applicant had sexually assaulted.

As for the 13th matter, there can be no complaint: about the Crown prosecutor describing the cross-examination of a Crown witness as being “extensive and at times forceful”; nor about the Crown prosecutor reminding the jury of the duration of the cross-examination; nor about the Crown prosecutor submitting that the complainants had not resiled in the witness box from what they had told police many years before.

As for the 14th matter, there can be no complaint about the Crown prosecutor submitting that an accused who has chosen to go into the witness box gave thoroughly unsatisfactory evidence. Indeed, so long as the principles in Browne v Dunn (1893) 6 R 67 have been complied with, there can be no complaint about a Crown prosecutor submitting that the evidence of an accused person is wholly untruthful and should be completely rejected by the jury.

As for the 15th matter, there can be no complaint about the Crown prosecutor submitting that the evidence of an accused person is “inherently implausible”. Nor can there be any complaint about it being submitted to the jury that there had been a deliberate effort on the part of the applicant to give evidence that some event occurred outside the dates averred in the indictment in order to exculpate himself, so long as Browne v Dunn has been complied with.

As for the 16th matter, there is nothing exceptionable about the Crown prosecutor summarising the evidence of the applicant about an event as being that it “just simply never happened”.

As for the 17th matter, there can be no criticism about a Crown prosecutor submitting that a complainant was reluctant to give evidence, but thereafter did so in detail with regard to offences said to have been committed against him on her. Having said that, the use of the phrase “blow by blow” should have been avoided, carrying as it does with it an emotive connotation of the repeated infliction of violence or pain.

As for the 18th matter, the reference to “a complete load of rubbish” was belittling of the applicant and his evidence, and should not have been used.

As for the 19th matter, there can be no complaint about the Crown prosecutor submitting that, whilst the applicant was assaulting a young girl, he took steps to hide that act from another person.

As for the 20th matter, the Crown case was indeed that the applicant had sought to masturbate a seven-year-old girl. In those circumstances, the reference to such a proposition is not exceptionable.

As for the 21st matter, there was nothing wrong with the Crown prosecutor submitting that the lack of flexibility on the part of the applicant in the witness box called his credibility into question, and to summarise his position about certain matters as being “no, never happened”.

As for the 22nd matter, again, there is no error in a Crown prosecutor submitting that the position of an accused is that something “never happened”, and proceeding to criticise that position.

As for the 23rd matter, it is unremarkable for a Crown prosecutor, in seeking to “get across” his or her submissions to a jury, to use colloquial language such as referring to something that “just does not stack up whatsoever”.

As for the 24th matter, it was inappropriate for the Crown prosecutor to refer to the applicant being taken “off script”. That had the potential to cause the jury to infer that it was being suggested that there had been some dishonest preparation of the evidence of the applicant, perhaps with the collusion of the applicant’s advocate. The phrase should not have been used.

As for the 25th matter, it is not exceptionable for a Crown prosecutor to submit that evidence, or a submission by a applicant’s advocate, can be rejected “out of hand” by the jury.

As for the 26th matter, it was not exceptionable for the Crown prosecutor to submit that the jury would accept the evidence of a Crown witness despite certain discrepancies within it.

As for the 27th and final matter, it is quite inappropriate for a Crown prosecutor to invite a jury to “tell that man” that what he has done is criminal. Indeed, the delivery of verdicts in criminal trials in Australia is not a matter of juries “telling” any accused – or indeed anyone else – anything; rather, it is a matter of juries, acting as unemotional and unprejudiced judges of the facts, determining whether or not the Crown has proven its case beyond reasonable doubt on the evidence placed before them, and returning verdicts accordingly.

Whilst one may accept that a Crown prosecutor, like any advocate, seeks to end his or her final address with a persuasive flourish, we consider that it was very wrong for the Crown prosecutor to conclude her address in that way. And if it happens to be the case that there is something of a practice of the final addresses of Crown prosecutors in New South Wales ending in that way, or in some similar way, it should cease immediately.

In short, we consider that some of the things said by the Crown prosecutor in her final address were inappropriate, and seriously so.

However, the fact is that his Honour was of the same opinion, and gave very firm directions to the jury as a result. It is seldom that a trial judge will, very close to the commencement of the summing-up, direct a jury to disregard a number of the submissions of a Crown prosecutor in a criminal trial. It was accepted by his Honour, as it is accepted by us, that some of the things that the Crown prosecutor said to the jury should not have been said; but the real question for our determination is whether the remedy adopted by his Honour of giving very firm directions to the jury, as opposed to discharging the jury, was not open to the discretion of the trial judge in the circumstances his Honour had to deal with.

We cannot accept that proposition. The trial judge was in a far better position than this Court to balance all of the factors to be taken into account with regard to the discharge of a jury: see Crofts v R [1996] HCA 22; 186 CLR 427 at 432 (Dawson J), recently referred to in Mikael v R [2015] NSWCCA 294 at [43] (Hall J, with whom Macfarlan JA and Bellew J agreed). For example, his Honour was able to judge the atmosphere in court throughout the whole of the trial in general, and at the time that the inappropriate things were said in particular; to hear the tone of voice with which things had been said by the Crown prosecutor; and to see the effect, if any, that one could discern they were having on the members of the jury, by way of their facial expressions, and body language. None of that is vouchsafed to us by way of a mere reading of the transcript of the trial.

As well as that, it is relevant that the trial was conducted before a judge whose experience in measuring the atmosphere in jury trials of extremely serious offences, is almost unmatched in this State.

It is true that it would have been open to the trial judge to have discharged the jury, and perhaps other judges may have done so. Acceptance of that proposition, however, is not the test for review of discretionary decisions of trial judges by this Court.

In short, we do not accept that the discretionary decisions to refuse to discharge the jury and to deal with the problem with the very forceful directions which his Honour gave were so unreasonable as to be unavailable, and to have constituted a miscarriage of justice.

Separately, it is true that wrongful things had been said by the close of the Crown prosecutor’s address on the afternoon of Thursday 27 March 2014, but his Honour, as things turned out, did not give the jury ameliorative directions until several days later, in the afternoon of Monday 31 March 2014. But it was quite open to the applicant’s advocate to have sought such directions at an earlier time. Indeed, he could have sought that they be given immediately after the application for a discharge of the jury had been refused, and before the commencement of his own address on Monday 31 March 2014. The forcefulness of what his Honour ultimately said to the jury very close to the start of the summing-up permits one to infer that, at the least, his Honour might have been open to such an application, but it was not made and accordingly, the course which his Honour finally took, was open as a matter of discretion in the circumstances.

The transcript shows that, throughout the entirety of the trial, the applicant’s advocate had played a very active and engaged role in defence of his client. The fact that the applicant’s advocate, having failed in the discharge application, was content to await the giving of firm directions about the Crown prosecutor’s address until the commencement of the summing-up, after his own address, is not a matter that can be disregarded in assessing the adequacy of the remedy adopted by his Honour. And nor is the fact that, the directions having been given near the start of the summing-up, the applicant’s advocate sought no correction or amplification of them. In other words, we consider that r 4 of the Criminal Appeal Rules (NSW) has some role to play in this context, both in a formal and practical sense, though not a determinative one.

Finally, as we have shown earlier in this judgment, both the questions asked by the jury during the deliberations, and the verdicts ultimately delivered, support the proposition that the jury approached its task in a principled and unprejudiced way, adhering to the directions it had received.

We do not accept that any aspect of the cross-examination of the applicant by the Crown prosecutor about which complaint is made led this trial to miscarry. While we do accept that aspects of the final address of the Crown prosecutor were inappropriate, some of them seriously, they also led to no miscarriage. We also do not consider that it was beyond the bounds of the legitimate exercise of discretion by the trial judge to deal with the problems which arose by way of very firm directions delivered close to the commencement of the summing-up, rather than by a discharge of the jury. Nor are we satisfied that the directions ultimately given by his Honour were inadequate, especially bearing in mind the position adopted by the applicant’s advocate, with regard not only to their timing but also to their content.

For those reasons, we consider that grounds 7, 8, 9 and 10 must also be dismissed.

In oral submissions, it was accepted that in order to make out this ground what the applicant had to establish was that the sentence imposed upon him was manifestly excessive, rather than “too severe”. It is error in the exercise of his or her discretion of the kind discussed in House v The King at 505, which must be shown. It is not enough that the appeal court considers that had it been in the position of the judge, it would have taken a different course (see Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]).

In approaching this sentencing appeal, it must be remembered that while his Honour gave indicative sentences, he imposed an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). As discussed in JM v R [2014] NSWCCA 297 at [40], such indicative sentences, while recorded in accordance with the requirements of s 53A(2), are not amenable to appeal. They may help reveal that error has occurred in fixing an aggregate sentence, but even if the indicative sentences are assessed as being excessive, it does not necessarily follow that the aggregate sentence is also excessive.

It must also be recollected that the non-parole period imposed for the offending in question must reflect the minimum period of actual incarceration which justice requires that the offender serve in full-time custody, having regard to all of the elements of punishment, including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57] and Power v The Queen [1974] HCA 26; 131 CLR 623 at 628–629).

It also cannot be overlooked that, on sentencing, while the applicant submitted that a number of the offences fell in the lower range, he conceded that some offences had been serious and that some fell within the mid-range; that the offences had been committed over a long period of time, against multiple young victims; and that they had involved breaches of trust.

The result was that on 16 May 2014 Zahra DCJ sentenced the applicant to an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years, to date from 7 April 2014, his date of conviction (see R v Hughes (District Court (NSW), Zahra DCJ, 16 May 2014, unrep)). The indicative sentences which his Honour gave were:

His Honour began his sentencing remarks by noting that the applicant had been found guilty of two counts involving sexual intercourse without consent with a person under 16 years, the act being digital penetration; four counts of indecent assault of a person aged under 16 years; three counts of indecent assault of a person aged under 16 years whilst under authority and one count of commit an act of indecency towards a person under 16 years.

His Honour then turned to the facts which he found in respect of each offence, as well as dealing with the evidence of the applicant’s other sexual conduct towards complainants and other female children, to which we have referred earlier.

His Honour then turned to consider sentencing practices at the time of the offending, noting that in R v MJR [2002] NSWCCA 129; 54 NSWLR 368 it was observed at [57]:

His Honour observed that he was obliged, as far as he was able, to impose sentences appropriate not only to the then applicable maximum sentences for the offences of which the applicant had been convicted, but also to the appropriate sentencing patterns prevailing at the time, a principle which he noted was difficult to apply in practice. He also noted that this Court had recognised that there had been a significant upward trend in the length of sentences imposed on offenders, since the time of the applicant’s offending, but that it was difficult to be precise about the patterns of sentences imposed for particular conduct, given the broad spectrum of conduct caught by offences of sexual assault and indecent assault, for which the applicant was being sentenced.

His Honour also noted that, in analysing sentencing patterns, two significant factors to be taken into account were the change to the legislative scheme, which had resulted in increased statutory maximum penalties and the increase in the proportion of non-parole periods to the full term of sentences. His Honour then turned to the particular increases in maximum sentences for the various offences for which the applicant was being sentenced, before considering the relevant legislative history in relation to the patterns of relationship between head sentences and non-parole periods and the current requirements of the Crimes (Sentencing Procedure) Act.

His Honour noted that he had considered the large volume of material provided in relation to a past pattern of sentencing for the applicant’s offences and referred to recent decisions of this Court, as to how such material was to be used. He concluded at pp 15 – 16:

His Honour also noted that he was obliged to bear in mind that the non-parole period imposed on the applicant represented the minimum period of imprisonment he was required to serve, having regard to all of the purposes of sentencing and that ultimately, the sentence imposed had to adequately reflect the criminality of the applicant’s offending.

His Honour also took into account the evidence led as to the applicant’s subjective circumstances, which came from a report of Dr Nielssen, a psychiatrist who had examined the applicant and considered that he had no symptoms of any mental illness, psychiatric disorder, or other illness or problematic history of alcohol consumption or drug abuse.

Zahra DCJ considered that it was relevant that the applicant’s offending conduct had persisted for over 20 years; that he still denied his guilt, which denied him leniency on sentencing; and that he had no remorse or insight into the consequences of his offending, which made it impossible for his prospects of rehabilitation to be meaningfully predicted.

His Honour also took into account that, on sentencing, the applicant was aged 65 and that Dr Neilssen considered his offending against prepubescent female children aged 7-9 to place him into an abnormal category, but that he also had a record of no offending for some 10 years and stable family relationships, leading to the assessment that the applicant presented a low risk of future offending. His Honour noted, however, that his absence of insight made it unlikely that he would take advantage of programs to address his offending behaviour.

His Honour found the applicant otherwise to have been of good character, but considered that to be of limited weight, given the nature, seriousness and length of his offending behaviour. He thus concluded that deterrence had to feature in the sentence imposed. His Honour also took into account that the applicant was liable to suffer harder conditions in custody, given the restrictive custody and reduced access to facilities and therapeutic programs which he faced, and his fear for his safety while serving his sentence,.

His Honour also outlined the evidence that the applicant’s partner had given, as to the extent of the publicity which the applicant had to deal with before his arrest and its consequences, which had left him virtually confined to his home, except when reporting to police. His Honour accepted that the result was that the applicant had and would continue to suffer social isolation, another factor to be taken into account on sentencing. He did not accept, however, that delay in prosecuting the applicant had caused him to suffer any detriment, other than during the time between the police becoming aware of SM’s allegations and the applicant being charged, which his Honour took into account but only, he said, in a limited way.

Zahra DCJ also referred to the victim impact statements he had received, which he took into account in accordance with s 3A(g) of the Crimes Sentencing Procedure Act and not s 21A(g). His Honour also considered questions of accumulation and totality and explained that the sentences he imposed on the applicant did not represent appropriate sentences for such offending if it had been committed today, or in the more recent past.

The applicant did not submit, on appeal, that his Honour fell into any error in relation to his understanding of the principles. The case advanced was rather that it was in assessing the objective seriousness of the various offences the jury found the applicant had committed, and his application of these principles to those offences, that his Honour fell into error.

The applicant did not challenge Zahra DCJ’s characterisation of the offences committed against SH, counts 3 to 6.

He contended, however, that the sentences imposed upon him for counts 1 and 2 involving JP, reflected that his Honour had wrongly concluded that their objective criminality fell within the upper range of offending, involving as they did digital penetration for only a period of short duration, not associated with threats or acts of violence. The offences against AK were also submitted to have been wrongly categorised, not having been planned or orchestrated or prolonged, not having involved serious offending and having been committed opportunistically. Count 9, it was argued, was no more serious than counts 7 and 8.

The applicant’s case was that these offences all involved mid-range offending. The indicative sentences of 5 years for the offences involving JP and 2 years and 6 months for those involving AK, apart from count 9, for which the indicative sentence given was 2 years and 9 months, did not reflect, it was argued, either their respective or their relative seriousness.

The applicant also contended that count 11, involving an act of indecency towards SM which was characterised on appeal as “flashing”, was less serious, not having been accompanied by lewd talk, suggestion, masturbation or threat, although committed at an age when she was vulnerable. There had also been no planning. The sentence of 12 months, against a maximum penalty of 2 years suggested this offence was considered to be objectively serious. That, it was argued, reflected his Honour having been unduly influenced by evidence of uncharged acts against SM.

In his sentencing remarks, Zahra DCJ referred to authority which required the type of penetration involved in sexual intercourse offences to be but one of the factors taken into account in assessing its seriousness. Other relevant factors which he identified in JP’s case included age, in her case of 14 or 15, when the applicant was aged 36 or 37; the offending being the culmination of inappropriate contact which had commenced when she was about 11 or 12; the advantage taken of the applicant’s relationship with her parents and his presence in her home on both occasions; the fact that the offences had occurred when he had entered her bedroom, where she was asleep; the degree of force used in the second assault; and JP’s feeling of shock and fear.

In the case of the indecent assault offences, his Honour took into account the actual character of each of those assaults, including the degree of physical contact involved; the age of the victim; and the nature of the relationship between the applicant and the victim. Counts 3 to 6 involved SH, when she was aged between 6 and 8. His Honour concluded that the offences which involved the applicant forcing SH to masturbate him to the point of ejaculation and to rub semen over her vagina with his hand and his penis, to have been of an extremely high order, particular the offence committed when she was only around 7 years old. The applicant’s abuse of his position of trust was also taken into account, as was the degrading and shameful nature of this conduct, which had not been isolated, but had occurred on at least 5 occasions.

The other indecent assault offences, counts 7 to 9, involved AK when she was aged 9. They were found to have been a part of a predatory course of conduct committed while AK was in the applicant’s care. His Honour referred to the offences involving pinning her between his legs while his penis was exposed, when she had to thrash and struggle to be released and the offence committed while applying medication to her ears and AK feeling nervous, scared and upset. He also referred to her evidence that children do what adults tell you to do, especially at that age, especially when a child at someone else’s house.

The act of indecency involving SM when she was aged 12 or 13 also involved exposure of the applicant’s penis. His Honour found that it was not isolated, but part of a pattern of inappropriate conduct and occurred in circumstances where she was vulnerable.

His Honour indicated that he had not taken into account evidence of other sexual misconduct towards the complainants and the tendency witnesses, for which the applicant had not been convicted, as an aggravating factor. He also said that he had not imposed higher sentences on the applicant as a result of those uncharged acts. Rather, he took account of that evidence to deny the applicant leniency and to take into account the circumstances of the offences for which he was being sentenced as not involving isolated offending.

His Honour noted the opportunistic offending behaviour in which the applicant had engaged for over 20 years, which had not involved prolonged conduct, but persistent, calculated conduct, involving abuse of trust, exploitation of the complainants’ naivety and youth, being children over whom he had a position of authority as an adult, which had in many cases ensured their silence for many years. He concluded that the applicant’s offences were all objectively serious, some falling at the upper end of the range and those involving SH into a most serious category, with those involving AK also serious.

We consider that there was no error in his Honour’s factual findings or in his approach to the assessment of the nature and seriousness of the applicant’s various offending.

A sentencing judge must undertake such an assessment, in order to ensure that the gravity of each offence, viewed objectively, is reflected in the sentence imposed on the offender. Such an exercise requires consideration to be given to where in the range of conduct covered by the offence, the particular offending conduct falls, so that the sentence imposed does not exceed what is proportionate to the gravity of that crime (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15]). That was the exercise which his Honour properly undertook.

His Honour was also well aware of the distinction between not increasing a penalty based on aggravation and not granting an offender leniency on account of the fact that the events charged were not isolated incidents. Like the circumstances considered in Dousha v R [2008] NSWCCA 263 at [27], the result of this sentencing exercise was not consistent with the applicant having been sentenced for any uncharged conduct.

For the entirety applicant’s offending, he has been sentenced to serve a non-parole period of 6 years and a total term of 10 years and 9 months. Given the admitted seriousness of his offending against SH, when considered together with the objectively serious offending against JP, which we consider his Honour correctly characterised as objectively more serious than that committed against AK, as well as the offending against AK and the lesser offending against SM, the proposition that this aggregate sentence was the result of any error in his Honour’s conclusions as to the seriousness of the applicant’s individual or overall offending, cannot be accepted.

Minds could well differ, it must be accepted, as to the indicative sentence identified in respect of the offence involving SM, given that the maximum penalty for that offence was 2 years and the indicative sentence given was 1 year. But we do not accept that this offence involved merely an act of “flashing”, as it was characterised on appeal. It was more serious than that, given all of the evidence and the relevant matters which his Honour took into account in assessing the objective seriousness of this offence. That there was any error in the overall aggregate sentence imposed on the applicant was not established.

In arriving at an aggregate sentence, his Honour applied the principle of totality, and also considered questions of accumulation, noting that the offending involved several victims; that some offences were part of one unbroken episode; and that while concurrent sentences could be imposed, when discrete criminal acts were committed, either in relation to individual or multiple victims, there should be at least partial accumulation. His Honour thereby arrived at an aggregate sentence, including a non-parole period which he considered that the applicant ought serve, having regard to what the purposes of justice required in all of the circumstances.

As discussed in Mulato v R [2006] NSWCCA 282 at[37]:

His Honour’s conclusions as to the appropriate aggregate sentence for the applicant’s overall offending, reflecting the objective seriousness of his individual offending, were unarguably open.

As discussed in R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [22]-[23], Zahra DCJ was obliged to sentence the applicant in accordance with the principle discussed in R v Shore (1992) 66 A Crim R 37 at 42, that an offender be sentenced in accordance with the range of sentences imposed at the time when the offence was committed, but that is often a difficult obligation to discharge.

The applicant received an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years, which was, in all of the circumstances of his offending, not a heavy sentence. Had his Honour not had regard to patterns of sentencing which applied at the time of the commission of his offences, a higher aggregate sentence would clearly have had to be imposed on the applicant, given the criminality involved in each of his offences as viewed against the maximum penalty prescribed for those offences and what considerations of totality and aggregation required in his circumstances.

Zahra DCJ expressly took into account the non-parole periods commonly fixed at the time of this offending at a third to one half of the total sentence, when considering special circumstances, in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act. The ratio fixed was a non-parole period of 55.81% of the head sentence.

The applicant contended that the ratio ought to have been less than 50% and that the total aggregate sentence ought to have been even lower than the 10 years 9 months imposed, had proper consideration been given to the earlier sentencing patterns. It was also argued that his Honour’s view, namely, that the patterns of lesser sentences demonstrated in the cases he had been referred to had to be considered with care, had inappropriately marginalised an important moderating feature of this sentencing exercise.

The particular case to which attention was drawn in written submissions on appeal was DCM v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep), where a 76 year old offender was sentenced for 16 counts of sexual offending involving 5 victims between November 1986 and April 1991, for which he was sentenced to 300 hours of community service and a good behaviour bond. That single case does not establish that the sentences imposed for the applicant’s offences were too high.

In oral submissions, it was argued that proper consideration had not been given to the many sentencing examples which had been provided to his Honour and that the aggregate sentence imposed had not properly reflected those earlier patterns, in which there had been a normal range of one third and one half of the sentence, as had been accepted in Magnuson v R [2013] NSWCCA 50.

In Magnuson, it was accepted, at [91], that the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now and, at [94], that examination of the length of sentences imposed upon those who were imprisoned in the 1970’s shows that they were short compared to those imposed for equivalent offences today. It was also accepted, at [109], that in Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540, Bell JA (as her Honour then was) at [33] - [44] provided details of a number of decisions of this Court between 1990 and 1998 with regard to the sexual assault of children which, considered as a whole, showed that sentences for such offences have moved upwards. From [117] developments over the past 25 years within the criminal justice system which had led to a lengthening of sentences for both sexual offences and offences generally were examined. In the result it was concluded that:

At [133], it was also noted however, that even when giving effect to such considerations “sentences imposed now must adequately reflect the criminality of any offender, whenever the offences were committed.”

In Magnuson, it was finally concluded that while sentences imposed for the offences committed against the various victims were not manifestly excessive, that the total non-parole period of the overarching sentence structure should be closer to 50% of the total head sentence than that imposed (at [145]). On resentence, while the head sentences were not reduced, there was a reduction in the ratio between the total non-parole period and the total head sentence, resulting in a total non-parole period of 56% of the total head sentence.

When that outcome is considered against his Honour’s approach in this sentencing exercise, where the ratio fixed was a similar percentage, it is not open to conclude that the result of his Honour’s approach was relevant error, or a manifestly excessive sentence.

The applicant’s case was that Zahra DCJ had erred in his approach to extra curial punishment, which on the evidence ought to have been more clearly recognised as a significant penalty; that he had not approached the victim impact statements, particularly that of SM, with proper caution and had not adequately considered their reliability; and that he had not adequately considered how harsh the applicant’s conditions of custody were likely to be.

His Honour said that he took account of the extra curial punishment he discussed, by reference to the evidence of the applicant’s partner and that given by Dr Nielssen, as well as to Ryan v R [2001] HCA 21; 206 CLR 267. The complaint advanced on appeal raises a question of the weight given to that consideration. No error in his Honour’s approach or conclusion was thereby established.

His Honour also referred to R v Slack [2004] NSWCCA 128, where it was observed that the weight to be given to a victim impact statement is for the court to determine; that the impact of criminal behaviour on the victim or victims of such behaviour must be taken into account, by way of an objective assessment of the crime’s effect; and that substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

In this case, his Honour had not only received victim impact statements, but also the sworn evidence given by complainants at trial. He concluded that the statements should be considered for the limited purpose specified by s 3A(g), that is, to recognise the harm done to the victim of the crime and the community and not for that provided by s 21A(2)(g), namely, that the injury, emotional harm, loss or damage caused by the offence was substantial.

There was no error in that approach. Nor was his Honour’s approach to the harsh conditions in custody which it was anticipated that the applicant would have to endure erroneous.

This ground must be dismissed.

Leave was sought at the hearing to add this ground. It may be contrasted with the other grounds of appeal against sentence because it is based on evidence that was not relied upon only if error were otherwise established, and this Court came to consider resentence.

Rather, it was submitted that the evidence of the deplorable mistreatment of the applicant whilst he has been in custody since he was sentenced is fresh evidence that may, exceptionally, be taken into account, without the need for establishment of error by the sentencing judge.

Read in support of the ground was an affidavit of the applicant of 27 August 2015, and an affidavit of the solicitor for the applicant of 28 August 2015.

Their contents may be summarised as follows. The applicant has lived in great fear since he was sentenced on 16 May 2014. He has informed his advocate that he lives with constant verbal and physical abuse. He has been spat on, showered with excrement and urine, and scalded with boiling water. For some time, the applicant had to “run a gauntlet” to reach the building in the gaol where legal and personal visits are conducted. The advocate has seen aspects of the appearance and demeanour of the applicant that support his contentions.

Through fear, the applicant and his wife have been very reluctant to make any complaint to the authorities, or to agree to the applicant being transferred to a different gaol.

The advocate believes that the reasonably recent publication of a book about the maximum security gaol in which the applicant is housed, and which refers to his incarceration there, has exacerbated the situation.

In short, it was submitted that fresh evidence has come into existence since the imposition of sentence that was (by definition) not available to the sentencing judge, and it is to do with a topic that was known to his Honour at the time of the imposition of sentence.

Referring to the long line of decisions in this Court that commenced with R v Smith (1987) 27 A Crim R 315, and concluded most recently with Cornwell v R [2015] NSWCCA 269, it was submitted that, as an exceptional matter, these subsequent events adverse to the applicant should be taken into account by this Court, with the result that the sentence is reduced to some degree.

We consider that, in determining this ground, it is important to focus upon what the sentencing judge knew, predicted, and took into account at the time of imposition of sentence. We extract the entirety of what his Honour said in the remarks on sentence under the heading of “Hardship in custody”:

Turning to our determination of this question, it is quite true that there is an exceptional class of case in which this Court has reduced sentences based upon subsequent events to do with topics that were imperfectly known to a sentencing judge. Examples of the subject matter have included subsequently developing illness (see, for example, Smith and Bailey v R (1988) 35 A Crim R 458); the provision of assistance to authorities in the prosecution of co-offenders (see JM v R [2008] NSWCCA 254); and the receipt of inadequate medical care and attention in custody (see, for example, R v Keir [2004] NSWCCA 106 and Turkmani v R [2014] NSWCCA 186). Whilst caution has been expressed about expanding those categories (see Cassar v R [2013] NSWCCA 147 at [51]), they undoubtedly exist, and are not necessarily closed.

So much may be accepted. But here, reading the entirety of the extract from the remarks on sentence, we consider it plain that the sentencing judge was well aware of the potential for the applicant to be the subject of serious verbal and physical abuse in custody. We say that not only because of what his Honour actually said, but also because, as our discussion of other grounds of appeal have shown, his Honour was perfectly aware that there had been an enormous amount of publicity, much of it vitriolic, about the proposition that the applicant had sexually assaulted many young girls. We do not accept that his Honour was under any misapprehension about what was very likely to happen to the applicant in custody. Nor do we accept that the sentence imposed by his Honour fails to reflect those eventualities.

What has happened to the applicant since his imprisonment, as demonstrated by the undisputed affidavit evidence, is unquestionably to be condemned. But a fair reading of what his Honour said about the topic, in the context of the proceedings as a whole, is that exactly what his Honour expected would happen has indeed happened. In those circumstances, there is no room for application of the exceptional basis for intervention relied upon in support of this ground of appeal.

Although leave should be granted to argue it, we do not uphold this ground of appeal.

Nevertheless, it should be observed that the affidavits received from both parties raised disturbing matters as to the conditions under which the applicant is being kept in custody. The matters there revealed ought, in our view, to be considered by relevant authorities.

If the applicant were to be resentenced, they would provide a basis upon which a conclusion might be reached that some lesser sentence should be imposed upon him, as the Crown properly accepted.

That information, described by the Crown in submissions to have disclosed a number of disturbing incidents which have occurred while the applicant has been held in custody which should not have happened, have understandably led him to have fears about the conditions under which he is incarcerated. Those incidents having been ventilated in open court, as they were, raise matters of considerable, obvious, public interest which we consider ought to be referred by the Crown to the Minister and the Commissioner of Corrective Services (NSW).

For these reasons we make the following orders: