Hall v R

1. [1]

   HARRISON J: Edward Hall appeals against his convictions and sentence following a trial before his Honour Gartelmann SC DCJ sitting in Newcastle without a jury. Mr Hall was found guilty on 5 October 2018 of 21 child sex offences that had been committed between 1973 and 1986 when he was a lay teacher at St Pius X secondary school at Adamstown. All of the complainants were students at the school when the offences were committed.

2. [2]

   Mr Hall appeared in this Court without legal representation or assistance. He has filed and relies upon several documents in handwriting that do not specifically describe his grounds of appeal. However, senior counsel for the Crown has identified what appear to be the several bases upon which Mr Hall wishes to challenge his convictions and his sentence. Mr Hall accepted the Crown’s characterisation of these grounds as the following:

   1. (1)

      Ground 1: The verdicts are unreasonable and cannot be supported by the evidence.

   2. (2)

      Ground 2: Mr Hall was unable to receive a fair trial.

   3. (3)

      Ground 3: Tendency evidence was unfairly admitted in the trial.

   4. (4)

      Ground 4: Mr Hall’s trial was incompetently conducted by his legal representatives.

3. [3]

   Mr Hall was sentenced to an aggregate sentence of imprisonment of 20 years with a non-parole period of 13 years and 6 months commencing on 5 October 2018 and expiring on 4 April 2032. Although Mr Hall’s submissions on sentence incorporated his insistence that he was not guilty, so that he should never have been sentenced at all, the burden of his complaint about the sentence is that it was manifestly excessive.

Ground 1

1. [4]

   Mr Hall contends that all of the complainants were unreliable witnesses, that they had fabricated their evidence, that their motives were spite and revenge and the desire to achieve some monetary compensation from the State. He contended that they colluded with each other and that their evidence was accordingly tainted. Mr Hall also asserts that there was no evidence of opportunity or desire on his part to commit the offences and that, together with his prior good character, there was a reasonable doubt as to his guilt.

2. [5]

   Mr Hall’s Grounds of Appeal filed on 19 May 2020, in the form of submissions, commenced with the following assertions:

3. [6]

   In oral submissions in this Court, Mr Hall referred to a number of matters that are arguably capable of being seen as referable to this ground of appeal as well as his allegation that he was incompetently represented. For the purposes of this ground of appeal, Mr Hall emphasised the following matters, among others.

4. [7]

   Mr Hall submitted that his accusers had a grudge against him that both explained their complaints and tainted their evidence. He said this:

5. [8]

   I take it to be Mr Hall’s complaint that he was exposed as a target of retaliation from boys at the school because he was given the task by the headmaster to “lift the academic profile as well as behaviour and discipline” and that his performance of that task engendered resentment in boys who by implication made the allegations of sexual abuse that led to the charges that he faced. Doing the best I can, Mr Hall’s contention that the verdicts in each case were unreasonable appears to be a challenge to the legitimacy of his Honour’s satisfaction of guilt beyond reasonable doubt upon the basis that the several complainants had an obvious motive to lie and were obviously lying, both of which his Honour failed to detect. However, there is no evidence in this appeal that Mr Hall’s legal representatives had any instructions that all of the complainants had “axes to grind” so that the trial somehow miscarried, in the sense that his Honour was not made aware of this when he should have been. (A failure by defence counsel to cross-examine particular complainants about their motives, or to make submissions about their credibility because they were resentful of Mr Hall’s treatment of them as a disciplinarian, could only possibly be relevant to Ground 4).

6. [9]

   Mr Hall referred to a series of incidents that he maintained raised the issue of whether or not the complainants’ motives were improper and whether they should have been detected as such by the trial judge. For example he referred to an incident involving beach activities occurred at the school:

7. [10]

   As the Crown has pointed out, this issue was the subject of evidence at the trial. His Honour made findings concerning it in his judgment as follows:

8. [11]

   His Honour’s judgment deals clearly with this complaint. His findings do not appear to be questionable or unreasonable. Mr Hall has not demonstrated appellable error with respect to his Honour’s treatment of these matters in forming his conclusions.

9. [12]

   Next, Mr Hall’s submission emphasised alleged misconduct by the complainant OP with respect to smoking, bullying a new boy and entering the surf against his instructions. There was, however, no evidence about these incidents at trial. Mr Hall confined his answers in his evidence-in-chief to the fact that OP was on his roll for water surf lifesaving. There was no evidence that Mr Hall ever told his lawyers about these incidents. Even if he had, any tactical decision not to lead evidence from him about them, or not to put to OP that he had a motive to fabricate an allegation of serious criminal offending decades later, would not amount to a matter casting doubt upon the reasonableness of his Honour’s satisfaction beyond reasonable doubt of any of the charges. For presently relevant purposes, there is no material to support a submission that the verdicts were unreasonable for that reason.

10. [13]

    Mr Hall also emphasised the fact that he went to the beach and remained at the beach fully dressed (see above). However, there was no evidence in this appeal about it and no evidence led at the trial. Nor is there any evidence that Mr Hall ever instructed his lawyers concerning it.

11. [14]

    Mr Hall made several other submissions about issues of this type. Once again allowing for the fact that Mr Hall was not legally trained, an example of this type of submission can be found in the following extract from the appeal transcript:

12. [15]

    A significant proportion of Mr Hall’s submissions refer, with no apparent appreciation of the irony, to “Essential Background Information (his Honour did not hear it, and was not made aware of it)”. It is Mr Hall’s submission under this ground that the undercurrent of dislike for, or resentment towards, him at the school from the complainants, whom he was required to discipline, has adversely affected their testimony and that his Honour should, even in the absence of direct evidence about it, somehow have discerned this and rejected their complaints as incredible and untruthful as a result. Alternatively, Mr Hall appears to contend that to the extent that these matters were not made plain in the evidence, his lawyers were at fault and that his Honour would have come to a different conclusion on all counts if they had been. The first proposition is no more than a complaint that his Honour should have come to a different conclusion about Mr Hall’s guilt and that he should have seen through the lies told by the complainants and rejected their stories, with the result that his findings of guilt were based upon lies and were unreasonable for that reason alone. However, Mr Hall has not managed by this approach to demonstrate that the verdicts were unreasonable in the sense that his Honour could not on the whole of the evidence legitimately have arrived at them. I have reviewed all of the evidence in the trial and I am satisfied that it was open to his Honour to be satisfied beyond reasonable doubt of Mr Hall’s guilt on all counts upon which he was convicted. The second proposition is considered under Ground 4.

13. [16]

    In summary, matters or complaints such as those articulated by Mr Hall in the transcript extracted at [14] were either not raised at the trial so as to amount to new or fresh evidence (see WG v R; KG v R [2020] NSWCCA 155) or are matters that were in fact actually raised at the trial and dealt with by Mr Hall’s counsel. In either case, Mr Hall has not demonstrated that the verdicts in his trial were unreasonable as a result.

Ground 2

1. [17]

   Mr Hall maintains that his trial was unfair as the result of local adverse media attention, the delay between when the offences were alleged to have been committed and the trial and because he had to wait until the Crown witnesses had completed giving their evidence before he was able to respond. These are dealt with in turn.

2. [18]

   As already noted, Mr Hall was tried by judge alone. That was the direct result of a successful application by him in which he sought an order that the trial venue be relocated from Newcastle or that he be tried by judge alone. Mr Hall swore an affidavit on 19 April 2018 in support of that application. Paragraphs 9 and 11 of that affidavit are as follows:

3. [19]

   Mr Hall has not suggested that the trial judge was himself adversely affected by the publicity in a way that led him erroneously to form an unfavourable view of him or that he was somehow otherwise biased against Mr Hall. Certainly no application was made during the trial or at any time to have the trial judge disqualify himself for some reason. As the Crown has pointed out, Mr Hall was acquitted on a number of counts. There is no reason to suspect that Mr Hall received a trial that was unfair either because of the surrounding publicity or because of any demonstrated idiosyncrasy of the trial judge.

4. [20]

   Mr Hall’s complaints about delay are concerned with the length of time between the commission of the acts that formed the basis for the charges against him and his trial on those charges. It is in the very nature of what are often referred to as historical sex offences that there is often a delay between the reporting and investigation of such allegations and the conduct of any trial that results. Unless Mr Hall can point to some prejudice that has resulted from the delay, usually in the form of lost evidence or the death of witnesses upon whom he might have wanted to rely at his trial, or the demonstrable loss of capacity or memory on the part of Crown witnesses, there is no basis for this Court to act upon these concerns.

5. [21]

   The trial judge dealt with the issue of delay in his judgment in the following terms:

6. [22]

   Accepting that Mr Hall did not seek to have his trial permanently stayed by reason of the type of difficulties to which the trial judge referred in his judgment, and accepting therefore that the proper approach was for the trial to proceed with the trial judge making due and proper allowance for the presumed disadvantage that followed, it is difficult to see what basis Mr Hall has for any complaint that his trial was unfair by reason of the delay. Mr Hall was entitled to receive a fair trial, not necessarily a perfect trial. The trial judge’s approach to this problem was unexceptionable and completely in accordance with accepted practice.

7. [23]

   Finally, Mr Hall’s concern that he was forced to await the conclusion of the Crown case before he could give his own version of what occurred is based upon a misunderstanding of the criminal trial process. It is obvious from the cross-examination of the complainants that Mr Hall’s counsel was armed with his instructions and that the complainants were challenged, where appropriate, with what Mr Hall ultimately wished to contend was the truth. The fact that he did not have an opportunity to rebut the evidence of each complainant in sequence is a simple function of the way criminal trials are conducted. The fact that Mr Hall considers this to have been unfair is unfortunate, but his view does not translate to a complaint that is justiciable in this Court.

8. [24]

   This ground of appeal is not made out.

Ground 3

1. [25]

   Mr Hall’s written submissions apparently raising a complaint about the admission of tendency evidence were as follows:

2. [26]

   Further submissions from Mr Hall on the same topic were supplied by him in the following relevant terms:

3. [27]

   As the Crown’s submissions suggest, it is not entirely clear what Mr Hall is intending to raise in this appeal as a challenge to the reception of tendency evidence in his case, as opposed to a complaint about the fairness of receiving tendency evidence in general. As the Crown has also observed, Mr Hall appears to be submitting that the prejudicial effect of the tendency evidence outweighed any probative value it may have had.

4. [28]

   Mr Hall appeared to narrow his focus with respect to this ground during the course of the hearing, as the following extract from the transcript reveals:

5. [29]

   The Crown contended that the tendency evidence admitted at the trial had substantial probative value, particularly as the setting for all of the alleged offences concerned Mr Hall’s conduct towards pupils at the school where he taught for some years. His Honour was referred to McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 and The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40. The tendency evidence upon which the Crown relied was limited to charged acts. However, there was a broad reliance across all counts, except 31, as well as some quite specific and confined reliance, in relation to particular complainants in respect of the various ways in which Mr Hall was alleged to have a tendency to act in a particular way. His Honour gave himself the usual warnings against misuse or misapplication of the tendency evidence as well as against exceeding the scope of the tendency case alleged by the Crown. The Crown submitted that there could be no suggestion that his Honour’s directions were incorrect or that he misapplied the law: Judgment, 5 October 2018 at pp13-17.

6. [30]

   His Honour also determined that he would not rely on tendency evidence unless he was satisfied that it was proved beyond reasonable doubt. That approach was probably more stringent than was required but advantageous to Mr Hall. It can be seen from the following extract from the Judgment at pp 105-106:

7. [31]

   I appreciate that Mr Hall is both unrepresented and not legally trained. However, the present proceedings are nonetheless adversarial and require the demonstration of error before this Court can intervene. Mr Hall’s avowed disaffirmation of the use of tendency evidence in criminal trials may find support at an academic or intellectual level but his concerns in the abstract do not advance his interests in the prosecution of his appeal in this Court.

8. [32]

   This ground of appeal is not made out.

Ground 4

1. [33]

   Mr Hall alleges that his lawyers at the trial were incompetent by reason of their failure to follow his instructions to call evidence from witnesses to attest to his good character. This allegation was expanded somewhat at the hearing of this appeal to include an allegation of a failure to call witnesses more generally.

2. [34]

   The Crown provided detailed submissions about this issue which it is helpful to set forth in detail.

3. [35]

   Mr Hall alleges that his lawyers were incompetent because they failed to call evidence of his good character. The Crown read the affidavits of Mr Hall’s solicitor Mr Lollback and his barrister Mr Heazlewood as to the reasons for the decisions made or taken in this regard. The Crown submitted that this evidence established that the decision not to call evidence of good character was a forensic decision made by Mr Heazlewood on the basis that he was aware that the Crown was in possession of material, served on the defence, which was available to rebut any evidence of good character should that issue have been raised at trial. That rebuttal evidence fell broadly into three categories.

4. [36]

   First, evidence was available that Mr Hall had been the subject of a number of complaints by both teachers and students at Temora High School and teachers, students and parents at Cootamundra High School when he was employed at these schools as a casual teacher. The complaints at Cootamundra High School were not investigated because the school made a decision not to employ Mr Hall again as a result of them. However, complaints were reported to the Education Department by the headmaster of Temora High School due to child protection requirements and they were subsequently investigated by the headmaster. The headmaster, having investigated, including interviewing Mr Hall, found that the complaints had been made out and provided Mr Hall with a written report of his findings. The findings included, but were not limited to, that Mr Hall had threatened students with physical punishment, conversed about sexual matters unrelated to a syllabus and made sexually suggestive remarks or actions and obscene gestures to students. Detailed notes of this investigation were served on the defence, including a note by the headmaster that Mr Hall said, when confronted with the complaints and in particular a complaint about calling students faggots and poofs: “We always entered into this robust form of conversation in the past in the schools I was in.” It was then pointed out to Mr Hall by the headmaster that he was mainly employed in the past by private schools and that he was now working in the public system and required to follow the Department of Education Code of Conduct. The comment by Mr Hall about his past behaviour was significant because it was an indication by him that his unacceptable behaviour was not new or recent. The evidence therefore had relevance in terms of his character at both the time of the offending and since. As a result of his findings, the headmaster recorded on 17 December 2012 his decision that he would not employ Mr Hall in the school again.

5. [37]

   Secondly, material to rebut evidence of good character was available that Mr Hall had on various occasions passed himself off both in person and in writing as a medical practitioner, despite not being registered as one. This was relevant to his reputation for honesty and integrity.

6. [38]

   Thirdly, evidence was provided by the Zimmerman Service, a body apparently set up to control Catholic education in the Newcastle area, containing an allegation that Mr Hall may be a paedophile and also containing more detailed allegations by DG’s mother, one of the Crown witnesses.

7. [39]

   In terms of the alleged failure to call evidence, Mr Lollback deposed in his affidavit to the fact that he could not recall Mr Hall providing a list of witnesses that could be called at the trial and that it was not until after the trial that Mr Hall provided instructions to follow up supporting references for use in the sentence proceedings. Mr Lollback said that he then followed up with these referees to get updated references. In terms of instructions generally, evidence in the form of file notes of conferences with Mr Hall show that instructions were taken from Mr Hall before the trial on the various counts and allegations. It is also clear from the trial transcript that Mr Hall’s counsel cross-examined various witnesses based on instructions from Mr Hall (for example repeatedly putting to complainants that Mr Hall did not have a ‘home’ class room to which they were sent for punishment and in which some offences allegedly occurred).

8. [40]

   The Crown submitted in these circumstances that there was no evidence of any errors regarding the calling of trial witnesses or the obtaining of instructions.

9. [41]

   In the present case, it not apparent from the face of the trial records whether Mr Heazlewood turned his mind to the question of evidence of good character. However, the evidence in this appeal makes it clear that a decision was made by him not to raise good character and that there were good tactical reasons why that decision was made. The rules relating to hearsay, tendency, opinion and credibility do not apply to character evidence called in rebuttal of good character evidence led on behalf of an accused: Evidence Act 1995, s 110(2). It would have been potentially highly damaging to the defence case in this matter to have raised good character at trial, either generally or in a specific respect, thereby giving the Crown a basis to lead the above rebuttal material, even if its use was limited to the rebuttal of good character evidence. The rebuttal evidence went to character both generally (the dishonesty of passing himself off as a medical practitioner) and specifically (in so far as the rebuttal character evidence would have exposed at trial Mr Hall’s subsequent sexual misconduct as a teacher).

10. [42]

    The Crown submitted that Mr Hall has an onus on appeal to show that there is a significant possibility that the trial Judge would have made an advance ruling in his favour to exclude evidence rebutting good character if his counsel had sought such a ruling at trial before deciding whether or not to raise good character: s 192 of the Evidence Act. The Crown submitted that that possibility in this case was no more than theoretical and may well have depended upon the trial Judge hearing voir dire evidence directly from the rebuttal character witnesses concerned: see McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 154. Here the rebuttal evidence was of significant probative value, particularly the evidence that Mr Hall’s character and conduct as a teacher fell so far short of acceptable standards that he was deemed unsuitable for employment as a teacher by the headmaster and deputy head of two public high schools.

11. [43]

    There was also a risk that, once admitted as rebuttal evidence, some of this material was capable of being used as circumstantial support for the evidence of one of the complainants, namely DK, whose evidence was that he was threatened by Mr Hall at the time of the offending by being told by Mr Hall that he was going to call the complainant a “poofter”. This left the complainant too scared to make a contemporaneous complaint. However, it is not necessary for this Court to decide whether the available evidence rebutting good character, once admitted, would also then have been available as evidence relevant to Mr Hall’s credibility generally or as evidence directly relevant to an issue in the trial (such as DK’s account of what Mr Hall said to him at the time of offending). The issue is whether or not there was any error by Mr Heazlewood in deciding not to take the risk of attempting to establish Mr Hall’s good character and whether his decision gave rise to a miscarriage of justice.

12. [44]

    Mr Hall appears not to have appreciated these realities both at his trial and in this appeal. In so saying, the law is that as a general rule a party is bound by the conduct of his or her counsel, who has a wide discretion as to the manner in which the proceedings are conducted. Forensic decisions frequently involve difficult judgments, including tactical considerations, about the “correctness” of which minds may differ. Forensic decisions made in the course of a trial may have been made differently with the benefit of hindsight. The question is not whether or to what extent counsel was incompetent but whether justice miscarried to the extent that an appellant such as Mr Hall was deprived by his counsel’s conduct of the chance of an acquittal.

13. [45]

    The Crown submitted that the evidence in this appeal, and what can be discerned from the conduct of the trial in respect of this ground, clearly indicates that Mr Heazlewood made no error in the conduct of the trial and that there was accordingly no miscarriage of justice.

14. [46]

    Mr Lollback and Mr Heazlewood were cross-examined by Mr Hall in this appeal. Mr Heazlewood’s evidence included the following:

15. [47]

    Mr Hall thereafter made submissions upon this ground that are succinctly encapsulated in the following extract from the appeal transcript:

16. [48]

    It will be immediately apparent from this exchange that the Crown’s reasonable anticipation, that Mr Hall’s principal concern under this ground was limited to the failure by his legal representatives to call evidence of his good character, may have been ill-founded. However, in my opinion, Mr Hall has not established that there was any relevant failure by his trial counsel to follow his instructions in any respect or in any respect that led to a miscarriage of justice in the sense that he lost the chance of an acquittal.

17. [49]

    Mr Hall’s submissions on sentence are most accurately captured by his oral presentation in this Court. The following extract from the appeal transcript should be noted:

18. [50]

    Although Mr Hall’s appeal appears primarily to be based upon his assertion that he is not guilty, he does raise manifest excess as a ground without identifying legal error. In the present case the sentence imposed was an aggregate sentence of imprisonment for 20 years to date from 5 October 2018 and to expire on 4 October 2038. A non-parole period of 13 years and 6 months was fixed to date from 5 October 2018 and to expire on 4 April 2032. The indicative sentences are set out at pages 28 and 29 of the remarks on sentence. Mr Hall was sentenced in respect of 21 offences spanning a period of 13 years involving nine victims.

19. [51]

    Section 25AA of the Crimes (Sentencing Procedure) Act 1999 applies in this case. It came into effect on 31 August 2018 and provides that sentencing practices and patterns of sentencing at the time of sentencing are to apply to child sexual offences as opposed to sentencing practices at the time of offending. As there are no transitional provisions, it applies to any sentence imposed after 31 August 2018. It therefore applies in this case.

20. [52]

    The Crown submitted at sentence that a major aggravating feature of this case was the position of trust in which Mr Hall stood in relation to the complainants and their parents. The complainants suffered significant harm, both at the time of the offending and continuing thereafter. The offending was accompanied by violence and threats to the complainants not to speak out. The complainants were mostly in their early teens and vulnerable to sexual exploitation. There was a significant need for a sentence that included both general and specific deterrence and adequate punishment that recognised the seriousness, scope and the lengthy period of the offending.

21. [53]

    Mr Hall has shown no remorse. His whole approach to the sentence imposed was that he was not guilty and should not have been sentenced at all. There is no evidence that he has suffered in any way due to the delay in complaint. He was largely responsible for the delay in that his threats deterred the majority of complainants from reporting him to the authorities. There was no evidence that he would serve his sentence in conditions any more onerous than those of other offenders.

22. [54]

    Section 21A (5A) and (5B) of the Crimes (Sentencing Procedure) Act applies to render prior good character a factor that does not mitigate this type of offending “if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence”. Mr Hall relied upon his position of trust to obtain access to the homes of some victims and gain the trust of their parents, which enabled him to offend for many years with impunity. The Crown submitted that there is no legal error revealed in the remarks on sentence and that in all the circumstances of this case, the sentence is not manifestly excessive.

23. [55]

    As noted, Mr Hall does not assert specific error. He does not complain that his Honour took account of matters that were irrelevant or that he failed to have regard to matters of importance. He does not assert that his Honour misapprehended the facts for sentencing purposes, although it must be acknowledged that Mr Hall complains, irrelevantly for present purposes, that he did so at the trial. Putting aside his protestations of innocence, Mr Hall’s complaint is that no judge exercising a sentencing discretion in his case could reasonably or possibly have arrived at the sentence that was imposed by his Honour. Mr Hall takes no issue with his Honour’s remarks on sentence or the reasoning that underpinned his conclusions beyond his complaint about the result.

24. [56]

    In my opinion, there is no basis upon which to conclude that his Honour’s sentence was manifestly excessive. It was entirely within the range of appropriate sentences for offences of the kind and number committed by Mr Hall. It is not for this Court to substitute its own views about the sentence unless Mr Hall can demonstrate that the sentence imposed below was unreasonable or plainly unjust. I am unable to agree that it was.

Conclusion and orders

1. [57]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal against conviction but dismiss the appeal.

   2. (2)

      Grant leave to appeal against sentence but dismiss the appeal.

2. [58]

   R A HULME J: This was a case of considerable complexity which is evident immediately from the observation that there were 31 counts on the indictment alleging offences committed between 32 and 45 years before the trial against 11 complainants.

3. [59]

   The verdict judgment provided by his Honour Judge Gartelmann SC is exemplary; an epitome of that which may be provided in a judge-alone criminal trial. His Honour carefully and precisely set out the relevant principles of law; reviewed the evidence relating to each offence alleged in respect of each complainant; made clear and comprehensive findings as to the honesty, accuracy and reliability of the witnesses; and ultimately provided cogent, and in my view unimpeachable, reasoning why he did, or did not, find the offences proved beyond reasonable doubt. The very fact of there being 21 verdicts of guilty and 10 of not guilty indicates the discriminating approach taken by his Honour.

4. [60]

   I perceive no merit in any of the complaints Mr Hall has made in respect of his convictions or sentence. I agree with the reasons provided by Harrison J and the orders he proposes.

5. [61]

   IERACE J: I agree with Harrison J. I also agree with the additional comments of R A Hulme J.