Futcher v R

1. [1]

   HARRISON CJ at CL: Neil Futcher stood trial in the District Court at Sydney before her Honour Judge Girdham SC and a jury between 16 August 2016 and 14 September 2016 on an indictment charging 22 offences. The charges all related to historical sexual offending by Mr Futcher against six young male complainants in the period 1974 to 1981 when Mr Futcher was employed as a teacher and as a swimming coach. In summary, those charges were compendiously described as follows:

2. [2]

   The key issue at the trial was whether the Crown had established beyond reasonable doubt whether any of the alleged sexual acts occurred. Mr Futcher gave evidence and denied sexual activity with any of the complainants. On 14 September 2016, the jury returned verdicts of guilty on all counts.

3. [3]

   On 27 January 2017, her Honour sentenced Mr Futcher to an aggregate term of imprisonment of 18 years and 4 months with a non-parole period of 11 years to date from 14 September 2016. Mr Futcher is first eligible for release on parole on 13 September 2027.

4. [4]

   Mr Futcher appeals to this Court on the following grounds:

5. [5]

   Mr Futcher requires leave to appeal in respect of each of these grounds: s 5(1)(b) of the Criminal Appeal Act 1912. As presently framed, none of the grounds of appeal involves a question of law alone.

6. [6]

   Mr Futcher also appeals against the severity of his sentence on a single ground as follows:

7. [7]

   It is common ground that the appeal is out of time. Mr Futcher filed a Notice of Intention to Appeal on 10 February 2017. The expiry date was extended on 16 January 2018 until 30 March 2018. A Notice of Appeal was filed on 23 March 2018. After a series of mentions in relation to the status of Mr Futcher’s legal representation, the matter was closed on 16 August 2018 as no final grounds or submissions had been filed. On 15 March 2021, Mr Futcher filed a Notice of Appeal. On 25 March 2021, the matter was directed to return to Notice of Intention to Appeal status. The current Notice of Appeal was filed on 20 August 2024, approximately 7.5 years after Mr Futcher was sentenced.

8. [8]

   Mr Futcher filed an application for release on bail on 24 December 2024. That application is referred to later in these reasons.

Ground 1

1. [9]

   Mr Futcher contends that the delay in prosecuting him was such that he has suffered an irreparable forensic disadvantage and that as a consequence could not be given, and did not receive, a fair trial according to law. Mr Futcher was concerned that witnesses may have died, documents may have been lost, the memories of those who were still alive by the time of his trial will have faded and his own ability to investigate the allegations or to refute them will also have been compromised by the passage of so many years. As counsel appearing for Mr Futcher at his trial rhetorically asked the jury, how was he expected to defend himself concerning allegations as old as 42 years and only as recent as 34 years, to which he had been required to respond in court. Mr Futcher submitted that the proceedings should have been permanently stayed.

2. [10]

   Mr Futcher referred to several authorities, including Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. The issue of forensic disadvantage caused by delay was extensively considered recently by this Court in Dawson v R [2024] NSWCCA 98. That was a case concerning allegations against the accused that arose from events in 1981 and 1982, but in circumstances where he was not finally put on trial until the middle of 2022, some 40 years later.

3. [11]

   On 8 August 2016, counsel for Mr Futcher at trial made an application for a permanent stay of proceedings in relation to counts involving two of the complainants. That application was made on the basis that both men had made police statements in 1997 and that “if the matters were investigated, the matters were decided then not to proceed with”, and that two witnesses, being Mr Carlisle and Mr Futcher’s mother, were dead.

4. [12]

   On 12 August 2016, the trial judge refused the application, and noted:

5. [13]

   The relevant principles regarding the granting of a permanent stay are well established. The power to stay proceedings permanently will only be granted in an extreme or exceptional case: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Jago v The District Court of NSW (1989) 168 CLR 23 at 34; [1989] HCA 46; The Queen v Glennon (1992) 173 CLR 592 at 605-606; [1992] HCA 16. In order to justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: Jago at 34; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18], [35].

6. [14]

   Fairness to the accused is not the only relevant factor. As the High Court observed in Dupas at [37]:

7. [15]

   As to what must be established where, on appeal against conviction, a challenge is brought to a decision to refuse an application for a permanent stay, this Court held in Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177 that the applicant will need to show both error in the exercise of the primary judge’s discretion in the sense of House v The King [1936] HCA 40; (1936) 55 CLR 499 and a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act.

8. [16]

   Macri preceded the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, in which the High Court held that the applicable standard of appellate review where a permanent stay of proceedings is sought on the basis that the proceedings amount to an abuse of process is the “correctness standard” identified in Warren v Coombes (1970) 142 CLR 531 at 552; [1979] HCA 9 rather than House v The King considerations.

9. [17]

   The trial judge was astute to direct the jury about the theoretical potential for Mr Futcher to be significantly disadvantaged by delay and directed the jury about it in terms that were consistent with s 165B of the Evidence Act 1995. The direction included reference to specific difficulties faced by Mr Futcher, including the inability of complainants to recall precise details, the fact that witnesses had died and that records had been lost. The direction included the following:

10. [18]

    The Crown submitted that the trial judge’s comprehensive direction to the jury, of which these passages formed part, was sufficient adequately to ensure that Mr Futcher received a trial according to law.

11. [19]

    It is trite to observe that a fair trial does not automatically or necessarily equate to a perfect trial. The exercise of judicial discretion to ensure, as far as possible, that Mr Futcher received a fair trial must necessarily accommodate competing considerations. For example, there is in cases such as this, and there was in this particular case, a substantial public interest in the prosecution of serious child sexual offences. The antiquity of the allegations did not reduce that public interest. What might otherwise be considered to be the presumptive prejudice caused by delay necessarily had to take account of such competing interests.

12. [20]

    Mr Futcher’s claimed significant forensic disadvantage was based on that presumption. It was that general disadvantage at which the trial judge’s warning to the jury was directed. This is not, and was not at trial, a case in which Mr Futcher’s alleged disadvantage could be related or traced to some specific or particular or unique event or set of circumstances that significantly and adversely affected the conduct of his defence and which rose higher than an understandable and well-articulated concern about the passing of time and the forensic disadvantage that a long delay may be taken to have generated. For example, Mr Futcher does not suggest, or has not explained, that the death or failing memory of some particular witness or witnesses, who might have been called and whose evidence would have corroborated his denials, means that the trial he faced was significantly different than a trial he might have faced if proceedings against him had been commenced earlier.

13. [21]

    Ground 1 should be dismissed.

Ground 2

1. [22]

   Two covertly recorded conversations involving Mr Futcher were tendered at his trial. No objection to this course was taken by his counsel at that time. Mr Futcher now contends first, that the warrants authorising the recording of these conversations were defective on their face and secondly, that with respect to the first recorded conversation he had been deliberately supplied with “excess alcohol” to encourage a false confession.

2. [23]

   The Crown has noted that, as there was no objection taken to the tender of the recordings at the trial, the warrants themselves neither formed any part of the evidence before the jury, nor were they marked for identification.

3. [24]

   With respect to the first point, Mr Futcher submitted that “the warrant” was defective because it did not state “the targets [sic, target’s] name”. Mr Futcher cites in a footnote to that submission s 20(1)(a) of the Surveillance Devices Act 2007. That section provides as follows:

4. [25]

   It is reasonably apparent from Mr Futcher’s submissions that he considers the warrant to be defective because it did not name him as “the applicant”. However, the reference to “applicant” in s 20 is defined in s 4 as “the law enforcement officer who applies, or on whose behalf an application is made, for the warrant”. The identification of Plain Clothes Senior Constable Amanda Dean in each warrant clearly satisfied the requirements of s 20(1)(a) of the Act.

5. [26]

   With respect to the second point, Mr Futcher gave evidence at the trial that prior to attending the venue and the recorded conversation, he took one and a half pills of Oxazepam and had a “double scotch and a can of or a bottle of Coopers beer”. He said he did not consume any alcohol at the venue before meeting complainant D. Mr Futcher gave evidence that complainant D supplied him with “three schooners” of beer at the venue during the conversation.

6. [27]

   Complainant D was cross-examined at trial about alcohol consumption at the venue and said that during the hour-long conversation, he and Mr Futcher consumed “probably around three beers … I don’t think it was any more”. Detective Sergeant Pollock gave evidence that there was a briefing with complainant D in which it was explained alcohol use was not to be excessive and “obviously not to get intoxicated”.

7. [28]

   The listening device product identifies that complainant D initially offered to purchase Mr Futcher a beer, asking if he wanted “a middy or a schooner?” Later in the conversation, Mr Futcher offered to get complainant D “another one” and purchased him a Carlton Draught. At the conclusion of the conversation, Mr Futcher offered to purchase complainant D another beer, which he declined.

8. [29]

   The Crown submitted in these circumstances that there is no evidentiary basis to suggest that Mr Futcher was deliberately provided with excess alcohol to encourage a false confession, either at the instigation of complainant D or the police. The recording itself supports the fact that Mr Futcher offered to buy alcohol for complainant D on two occasions. Mr Futcher was responsive and coherent in the hour-long conversation and provided significant detail on a range of topics including his time as a teacher, other students and his then current employment. Whilst the conversation included admissions, particularly about conduct towards complainant D, Mr Futcher also refuted certain allegations. For example, he denied going to Kempsey or ever touching complainant A in a sexual manner. Mr Futcher was clearly able to attend the bar and purchase alcohol without issue during the conversation.

9. [30]

   The Crown submitted, and I accept, that the recorded conversation was significantly probative, containing alleged admissions, and there was no evidentiary foundation at trial to suggest the admissions were illegally obtained, unreliable or that their use was unfair and inadmissible.

10. [31]

    The listening device recordings were properly admitted at the trial. Defence counsel did not raise any objection to the admission of either recording. The lack of an objection is not surprising given the absence of any evidentiary foundation for Mr Futcher’s complaints.

11. [32]

    In my opinion, leave to argue Ground 2 should be refused under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021.

Ground 3

1. [33]

   Mr Futcher submitted that the Crown “refused” to call all witnesses whose evidence was “vital” for the full presentation of the Crown case, thereby occasioning a miscarriage of justice and the loss of his right to a fair trial. Mr Futcher identifies 25 potential witnesses by name in support of this ground of appeal. His contention would appear to be that they were not called by the Crown at trial without any justifiable reason for their absence. In particular, Mr Futcher complains about the absence of Detective Senior Constable Amanda Dean and [BJ].

2. [34]

   It is instructive in this context to note what occurred at the trial on 29 August 2016, the day before the Crown closed its case, when the following exchange took place:

3. [35]

   A decision by a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice: The Queen v Apostilides (1984) 154 CLR 563 at 575; [1984] HCA 38.

4. [36]

   A fair reading of the transcript of the trial otherwise demonstrates clearly that the Crown prosecutor and defence counsel agreed upon the witness list: there was no “refusal” to call anyone. There is also no evidence that defence counsel asked the Crown to make [BJ] available. In his address to the jury, defence counsel said this:

5. [37]

   In the context of the conduct of the trial as a whole, there was no miscarriage of justice occasioned by the Crown not calling [BJ] as a witness. Moreover, the notion that the failure of [BJ] to give evidence was harmful or unfair in some way to Mr Futcher is based, at least in part, upon the notion that he would or could have said something helpful to Mr Futcher. Mr Futcher has not identified or suggested anything that [BJ] was expected to say that would have been of assistance to the defence case.

6. [38]

   There is also no evidence that counsel for Mr Futcher asked the Crown to call Detective Senior Constable Amanda Dean. Detective Sergeant Pollock gave evidence that he had taken over the investigation from her in May 2014 and outlined a chronology of the relevant police investigation to the jury. Mr Futcher’s submissions are otherwise silent about what it is alleged that Officer Dean would or could have said or why her absence occasioned a miscarriage of justice.

7. [39]

   Ground 3 should be dismissed.

Ground 4

1. [40]

   Even though this ground of appeal asserts in broad terms that the verdicts of the jury should be set aside on the basis that they are unreasonable and cannot be supported having regard to the evidence, it emphasises a slightly more limited complaint that the victims of the charged sexual offences were not able accurately or reliably to recall any of the alleged sexual offending in sufficient detail for the jury to have been satisfied that the Crown had proved its case to the criminal standard.

2. [41]

   Having regard to the fact that Mr Futcher was unrepresented in this Court, and to the relative importance of this ground in the scheme of his appeal, it was important where possible to assist him to focus his attention in oral submissions upon the particular ground of appeal that he was dealing with at any particular time. It was in that context that the following exchange took place with respect to this ground of appeal:

3. [42]

   Mr Futcher’s submissions concentrated upon a theme, evident in what he said in respect of Ground 1, that the passage of years in particular rendered the Crown’s witnesses in general and the complainant’s evidence in particular unreliable. Mr Futcher emphasised the fact that not all witnesses had the same recollection of events to which they were similarly exposed. However, each complainant was able to give an account of the sexual acts said to have been performed by Mr Futcher which corresponded to the 22 counts on the indictment. With the passage of time, the level of detail varied between and among these witnesses, but the evidence of all complainants included a description of the sexual act that corresponded to the offences allegedly committed against them and the circumstances in which they occurred.

4. [43]

   The Crown submitted that, noting Mr Futcher’s particular challenge to the level of detail provided by each complainant, it is not uncommon for victims to remember specific details about the assaults but not tangential or less significant details: Reed v R [2006] NSWCCA 314 at [64]; AS v R [2022] NSWCCA 291 at [137]; RM v R [2024] NSWCCA 148 at [231]-[232].

5. [44]

   The Crown also emphasised that there was a body of tendency evidence which demonstrated that Mr Futcher had a sexual interest in underage males who he taught or coached. For example, multiple complainants were exposed to pornographic material, inappropriate behaviour while they were at camps or remote locations, and the invitation to Mr Futcher’s unit at Drummoyne, including for a shower, where sexual activity occurred. The tendency evidence was available for a majority of the counts to assist the jury in determining whether the Crown had proved any particular act beyond reasonable doubt.

6. [45]

   The recognition in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 of the advantage enjoyed by the jury reflects the “special respect and legitimacy [afforded] to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. Fundamental to our system of justice is the recognition and acceptance of the fact that juries are “well able to evaluate conflicts and imperfections of evidence”: MFA at [96]. Central to the jury’s function in deciding contested factual questions is the assessment of the credibility of witnesses on the basis of what the jury has seen and heard in the context of the trial: Pell at [37]. The jury’s advantage in that respect is not confined to assessments of demeanour of witnesses and can extend to an assessment of the plausibility of a witness’ account in the context of considering how the witness presented: Reyne (a pseudonym) v R [2022] NSWCCA 201 at [5].

7. [46]

   The demarcation between the province of the jury and an intermediate appellate court was reaffirmed by the High Court of Australia in Pell at [38]. The High Court explained this at [39] as follows:

8. [47]

   A “case such as the present” includes a case where the principal evidence against an accused person is given by a complainant. It follows that this Court should proceed upon the basis that the jury found the complainants’ evidence to be credible and reliable. Mr Futcher challenges that finding.

9. [48]

   As Beech-Jones CJ at CL observed in AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [104]:

10. [49]

    Mr Futcher’s ground of appeal contending that the jury verdict was unreasonable asserted that this Court must entertain a doubt about his guilt that cannot be explained by the particular advantage enjoyed by the jury in the setting of the trial. Mr Futcher contends that in circumstances where the complainants’ recollection of events and that of other witnesses was not always perfect, that should have been enough without more to create a reasonable doubt about his guilt: the whole of the evidence in the case must on this approach yield to criticisms of the complainants’ accounts.

11. [50]

    The general principles that apply in determining whether a jury's verdict is unreasonable are settled, and were summarised by Bell CJ in Quinn v R [2023] NSWCCA 229 at [82]-[86]:

12. [51]

    The ultimate question "must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M at 494-495; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence - both its sufficiency and quality - to determine it: M at 492; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8] and [12].

13. [52]

    Further, when this Court undertakes an independent assessment of the sufficiency and quality of "the whole of the evidence" in order to decide whether a conviction is unreasonable, it does so within the context of, and by reference to, "the features of that evidence that support [the] respective cases on appeal" and not "by simply reconsidering the parties' respective cases at the trial": The King v ZT (2025) 99 ALJR 676; [2025] HCA 9 at [11]. It follows that "it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not": ZT at [12].

14. [53]

    There are frequently appeals to this Court, contending that a jury verdict is unreasonable and cannot be supported by the evidence, in which the applicant has been able to demonstrate that the evidence supporting the Crown case could not support the finding of guilt beyond reasonable doubt. For example, in Crane v R [2024] NSWCCA 112, the Crown alleged that the appellant was guilty as an accessory who procured a very serious assault upon the deceased and was thus criminally responsible for its consequences. The Crown case rested upon the fact and timing of a series of phone calls and text messages, not upon their content, to support an inference of guilt, when several alternative possibilities consistent with innocence had not been excluded. This Court quashed the conviction as there must have been a doubt that could not be explained by the jury’s special advantage of seeing and hearing witnesses in the context of the trial. A review of the evidence made it clear that it did not support a finding of guilt to the criminal standard: the verdict was plainly unreasonable.

15. [54]

    In JP v R [2024] NSWCCA 163, this Court quashed the conviction of a mother who had been convicted of sexual offences against two of her children. The Court concluded that the allegations described events that were bizarre, outlandish and difficult to believe. Sweeney J said this at [199]:

16. [55]

    In the present case, six complainants gave evidence of the assaults upon them alleged in the indictment. They were cross-examined. Their evidence was exposed to close scrutiny. The Crown case was fundamentally dependent upon acceptance of their accounts. The jury verdicts were not, in contrast, dependent on colourable inferences from circumstantial material or based upon descriptions of events that were at face value difficult to explain or believe. There were no fundamental inconsistencies between or among the complainants concerning critical facts. Nor does Mr Futcher suggest that the complainants’ evidence gives rise to competing and irreconcilable inferences, or that the versions given by them were simply incredible or bizarre and so should not be believed. As the Court was at pains to draw to his attention, it was in these circumstances essential that he explain, if he could, why the jury’s assessment of the complainants should not stand.

17. [56]

    In my view, Mr Futcher was not able to do so. His submissions fail to give force to the uncontroversial fact that it was the jury’s task to determine whether the complainants were both honest and accurate witnesses in the accounts they have given. The “mere existence of discrepancies or inconsistencies” in witnesses’ evidence is “scarcely surprising or unusual” and does not necessarily compel a conclusion that a jury’s verdict is unreasonable: Hanna v R [2023] NSWCCA 182 at [24], [85]. As was held in RA v R [2020] NSWCCA 356 at [15]:

18. [57]

    References to minor matters of detail in accounts, as tangential and insignificant as whether Mr Futcher’s unit at Drummoyne was near a park or the Gladesville Bridge, or whether the topographical features of Galston Gorge provided sufficient opportunity for him to have stopped his car, or whether the size and configuration of the change room facilities at the Freshwater Surf Life Saving Club were accurately described in evidence by a witness, say little if anything about the availability or reasonableness of the jury’s conclusions. Put another way, Mr Futcher’s analysis makes no allowance for the reality that understandable discrepancies in accounts between or among witnesses will invariably be present but that, without more, are not necessarily determinative of the existence of a reasonable doubt. Mr Futcher’s attack upon the reasonableness of the verdicts does not attempt to explain how or why the jury could not have been satisfied of his guilt beyond reasonable doubt apart from his ipse dixit that they could not.

19. [58]

    As the Crown has correctly observed, the fundamental issue at the trial was whether it had proved beyond reasonable doubt that the acts described by the complainants occurred. The jury were directed in unexceptionable terms that “unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account he has given, you cannot find the accused guilty of the charge concerned”. Upon my reading of the whole of the evidence that was before the jury, to only very limited and selective portions of which Mr Futcher himself directed this Court’s attention, I am not left with a doubt that it was open to them to be satisfied of Mr Futcher’s guilt to the criminal standard on all counts in the indictment.

20. [59]

    I would dismiss Ground 4.

Ground 5

1. [60]

   Mr Futcher complains that unfairly prejudicial material was admitted into evidence, as the result of which his trial miscarried. For example, there was evidence from a complainant that he had been “raped” by Mr Futcher when describing penile/anal intercourse and this was the subject of comment from neither defence counsel nor the trial judge. In a slightly different category, some answers given by the complainants were unresponsive, including what Mr Futcher described as “outbursts” when he was described as a paedophile, or cognate descriptions. On that occasion, the trial judge told the Crown to control the witness. Defence counsel ultimately sought a direction to the jury from the trial judge. Shortly thereafter, the trial judge directed the jury that “if there are any outbursts that are non-responsive to the questions, bear in mind that they are outbursts and not responsive to the question and I [ask] that you not have regard to those”. The trial judge also reiterated to the jury that day that comments made by the witness “as an aside” should be disregarded.

2. [61]

   When summing up to the jury, the trial judge warned the jury in the following terms:

3. [62]

   The question of whether unfairly prejudicial material has been admitted is to be resolved “by consideration of whether the applicant has established a miscarriage of justice and, if so, whether the Court can be satisfied that there has been no substantial miscarriage of justice”, in which case it is appropriate to have regard to the impact of the impugned material in the context of the entirety of the trial, including any directions that are given: Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [89].

4. [63]

   Mr Futcher submitted that the jury were not instructed by the trial judge concerning the outbursts and that no warning was given. That is not correct. The jury were directed more than once to disregard emotional outbursts and unresponsive answers and instead to focus on the evidence. Nothing further was sought by defence counsel and there was no application to discharge the jury. The Crown submitted that the absence of any defence request for further directions or a discharge was a strong indication that no miscarriage of justice had been occasioned in the atmosphere of the trial and the directions that had been given in fact.

5. [64]

   The issue was dealt with by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 440:

6. [65]

   It can hardly be doubted that Mr Futcher’s trial involved detailed reference to matters that would have elicited strong feelings and emotions. That would have been apparent from the very start of the trial and it would have continued throughout. It can be accepted that vernacular references to the nature of the charges and potentially pejorative descriptions of Mr Futcher’s alleged involvement in them must have been an anticipated artefact of a trial of this type. I do not accept that some reference in such terms as might have been made by the complainants or any one of them caused a substantial miscarriage of justice or indeed any miscarriage at all. More particularly is this so having regard to the trial judge’s warnings and directions about it.

7. [66]

   Ground 5 should be dismissed.

Ground 6

1. [67]

   In his supplementary submissions filed 19 September 2024, Mr Futcher relies upon five documents that he says amount to fresh evidence which is inconsistent with the Crown case and accordingly exculpatory. The Crown maintains that the evidence is not fresh evidence but is rather new evidence, a difference that is explained as follows by McClellan CJ at CL on Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [707]:

2. [68]

   The five documents require consideration in order to resolve that dispute. They are annexed to Mr Futcher’s affidavit sworn 9 October 2024.

3. [69]

   The Thompson Cooper Lawyers letter outlines complainant D’s claim against the Trinity Grammar School concerning allegations that Mr Futcher caned him on his buttocks. Denis Pogson was a teacher at the school at the time. Mr Pogson’s statement indicates that he did not witness the administration of corporal punishment “in the way that has been ascribed to Mr Futcher”.

4. [70]

   Mr Futcher gave evidence at trial that he would occasionally “use the stick” on complainant D but “that was legal those days”. An earlier application by the Crown Prosecutor to lead evidence from complainant D as to the extent of the corporal punishment was refused by the trial judge.

5. [71]

   It is not clear from Annexure 3 when complainant D made his claim against the school. If he did so in approximately 2020, at or about the time the letter was written, this is arguably “fresh evidence” even though the allegation itself was known at the time of trial. Mr Pogson’s statement was provided to Mr Futcher personally in 2015 and is not fresh evidence.

6. [72]

   Mr Futcher accepted at his trial that he had administered corporal punishment to complainant D. The extent of the punishment was the only issue in dispute. The details of the claim made against Mr Futcher in the letter written to him by the lawyers representing Trinity Grammar School described the allegations in detail as follows:

7. [73]

   Doing the best I can, it would appear to be Mr Futcher’s contention that the fact that complainant D had brought civil proceedings against the school seeking damages for assault would have been a significant fact for the jury to be told at his trial, as it might have reflected upon the complainant’s motivation and hence his truthfulness in giving evidence for the Crown.

8. [74]

   That analysis has in my opinion to be balanced against the likelihood that, properly advised by defence counsel or otherwise, Mr Futcher would have wanted or would have chosen to take the risk, that allegations detailed in the letter outlining what was plainly a further example of sexual offending, might be put before the jury. Even assuming for the sake of the argument that the jury became apprised of both Mr Pogson’s statement and the details of the claim against Mr Futcher while teaching at Trinity Grammar School, it seems highly unlikely that it would have caused them to entertain a reasonable doubt as to Mr Futcher’s guilt for the sexual offending. On the contrary, a revelation to the jury of an unrelated allegation against Mr Futcher of the type particularised in the letter would in my estimation have been plainly inimical to his interests in the criminal trial.

9. [75]

   These documents should be rejected.

10. [76]

    Complainant E gave evidence at the trial that Mr Futcher was driving along Galston Gorge and that there were a "couple of spots where you could sort of pull over and possibly let cars go through…a cutaway area which was surrounded by a lot of bush". Complainant B gave evidence that on one occasion, Mr Futcher drove along Galston Gorge and parked "in a secluded area just off the road and in the bush".

11. [77]

    The letter from Hornsby Shire Council indicates there are currently two rest areas on Galston Road within the Gorge. One has a small parking area “just off the road” with shrubs and the other is at the very bottom of the Gorge. The author of the letter says, “I have been unable to find any further information in relation to other rest stops on this part of Galston Road from the past. As the road is very narrow and steep, there does not appear to be any additional locations that other rest stops could have been provided due to lack of space for vehicles to stop safely”.

12. [78]

    The burden of Mr Futcher’s submission is presumably that this information, had it been utilised by him at the trial, would have cast doubt upon suggestions that he could have pulled over anywhere on Galston Road within the Gorge as suggested. Two things may be said about that.

13. [79]

    First, this evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Secondly, the letter does not prove that Mr Futcher could not have pulled his vehicle to the side of the road in an area near bushes that was not a designated parking area of the type referred to in the Council’s letter. Considered alongside all of the evidence at trial, the letter is barely capable of demonstrating Mr Futcher’s claims of innocence or of establishing the existence of a reasonable doubt as to his guilt.

14. [80]

    Mr Futcher annexes a document about the history of the Freshwater Surf Life Saving Club and relies on “photographic and documentary details” as fresh evidence. Mr Futcher notes in his affidavit that “there is no detail of the internal architectural layout of the said Club building”. Mr Futcher wishes to utilise this material in aid of an attack upon the evidence given by complainant F concerning the layout of the premises. Two things may be said about this material.

15. [81]

    First, this evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Secondly, Mr Futcher’s submissions do not address how it is said the photographs demonstrate Mr Futcher’s innocence, or the manner in which it is said that they contradict complainant F’s account. The documents would not cause this Court to entertain a reasonable doubt as to Mr Futcher’s guilt.

16. [82]

    The letter from the Council includes this:

17. [83]

    The evidence is only relevant to complainant A’s recollection of Mr Futcher’s unit at Drummoyne, and his belief there was a park nearby. His account of sexual activity at the unit was relied on as context evidence and was not a count for which Mr Futcher was found guilty.

18. [84]

    Complainant A was cross-examined about his recollection of the park, which he described as “green” and with “trees”. It was put to him by defence counsel that he had never been to the unit. Detective Sergeant Pollock gave evidence in cross-examination that there was no park next door to the unit block at the time police investigated.

19. [85]

    This evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Moreover, when the letter is considered alongside the evidence at trial, it is not of such cogency that Mr Futcher’s innocence has been demonstrated. The evidence would not cause this Court to entertain a reasonable doubt as to Mr Futcher’s guilt.

20. [86]

    In this respect it should be noted that the documents reveal that the Gladesville Bridge is in very close proximity to Mr Futcher’s unit and yet this complainant could not, or did not, remember it when cross-examined by defence counsel. The jury had that evidence before them in support of the very same submission that Mr Futcher now wishes to make concerning the veracity of the witness’ evidence. When challenged by defence counsel that he had never been to the unit, the witness responded “fallacious”. These competing matters were well and truly before the jury. The question of whether or not there was a “park” near the unit would not significantly have contributed to Mr Futcher’s ability at trial to contend that the witness had never been there.

21. [87]

    The admission of Annexure 5 should be rejected.

Ground 7

1. [88]

   Mr Futcher appealed against the severity of his sentence on grounds that included the effect upon him of the harsh and restrictive conditions under which he and other inmates were incarcerated during the COVID-19 pandemic. He asks that it be “reconsidered” as the result of being locked down in his cell due to the pandemic and bushfires.

2. [89]

   The principles that apply in circumstances such as those upon which Mr Futcher wishes to rely were considered in Toller v R [2021] NSWCCA 204. It is appropriate, particularly having regard to Mr Futcher’s currently unrepresented status, to include in these reasons the relevant passages from that decision, as follows:

3. [90]

   Mr Futcher was sentenced well before the pandemic occurred. It was not, and could not have been, a matter with which the sentencing judge was required to deal in sentencing Mr Futcher. Axiomatically, it could not form the basis for an assertion of error or manifest excess upon the basis that the sentence was plainly unjust.

4. [91]

   Apart from his submissions put forward on this basis, Mr Futcher did not advance any contention asserting that the sentence was otherwise manifestly excessive or that her Honour somehow erred in any way in the exercise of her sentencing discretion.

5. [92]

   Mr Futcher’s appeal against his sentence should be dismissed.

Release application

1. [93]

   Mr Futcher foreshadowed an application for release on bail. In the events that have occurred, having regard to my conclusion that his appeal should be dismissed, I consider that bail should be refused.

Rule 4.15

1. [94]

   In response to many of the issues that Mr Futcher has sought to raise in this Court, the Crown has responded by reference to the failure by defence counsel to take the point at the trial. I have taken the view in the present circumstances, particularly having regard to the fact that Mr Futcher is unrepresented and in light of the conclusions I have reached, that except in the case of Ground 2, it is preferable to decline to deal with the Crown’s rule 4.15 objections.

Conclusion

1. [95]

   I propose the following orders:

   1. (1)

      To the extent necessary, grant leave to appeal.

   2. (2)

      Refuse leave in respect of Ground 2.

   3. (3)

      Dismiss the appeals against conviction and sentence.

   4. (4)

      Refuse bail.

   5. (5)

      Decline to admit as fresh evidence or howsoever otherwise described the annexures to the affidavit of Neil Albert Futcher sworn 9 October 2024.

2. [96]

   GARLING J: I agree with the orders proposed by the Chief Judge for the reasons which he gives.

3. [97]

   I have considered the submissions of Mr Futcher that his convictions were unreasonable and cannot be supported by the evidence. I am unable to accept these submissions. The 22 convictions involving six different victims were not unreasonable and the evidence upon which they were based was abundant. There is no room for any doubt about any of the convictions.

4. [98]

   YEHIA J: I have had the considerable advantage of reading the judgment of Harrison CJ at CL in draft. In respect of Grounds 1, 2, 3, 5 and 6, I agree with his Honour’s analysis and conclusions.

5. [99]

   In respect of Ground 4, the applicant contends that the verdicts should be set aside on the ground that they are unreasonable and cannot be supported by the evidence. The fundamental issue at the trial was whether the Crown had proved, beyond reasonable doubt, that the applicant had committed the alleged acts. Although the Crown case included tendency evidence and admissions captured by listening device during a recorded conversation between the applicant and complainant D, the primary evidence was that of the six complainants. Each complainant was cross-examined and, in light of the verdicts, the jury must have accepted the complainants as both credible and reliable witnesses.

6. [100]

   In determining Ground 4, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. In assessing that question the Court must conduct its own independent assessment of the evidence. Having read the whole of the evidence, I am left in no doubt of the applicant’s guilt on all counts in the indictment.

7. [101]

   As to the appeal against sentence, the sole ground relates to the conditions in custody resulting from the COVID-19 pandemic. As Harrison CJ at CL points out, the applicant was sentenced well before the pandemic occurred. It was not a matter that the sentencing judge could have taken into account in imposing sentence. In the absence of any other asserted error or contention that the sentence is otherwise manifestly excessive, the sentence appeal should be dismissed.

8. [102]

   It follows that I agree with the orders proposed by Harrison CJ at CL.