Valentine v R

BASTEN AJA: In February 2019 the appellant, Frank Valentine, was put on trial on an indictment containing numerous charges of sexual or indecent assault committed by him on a number of complainants in a period from April 1971 until May 1973 when he was employed by the New South Wales Department of Child Welfare and Social Welfare [1] (the Department) at the Parramatta Girls’ Training School, and with respect to a period in January and February 1974 when he was employed at Daruk Boys Training School.

The trial was conducted by Judge Noman SC, sitting without a jury. On 9 April 2019 she delivered judgment, in which she found the applicant guilty on 21 counts and not guilty on eight counts. The guilty verdicts encompassed complaints by six complainants. On 24 May 2019, he was sentenced to an aggregate term of imprisonment for 22 years with a non-parole period of 13 years.

A notice of appeal was filed (out of time) on 5 May 2022, with an application for an extension of time. Because the grounds of appeal are not limited to points of law, leave to appeal is required pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). Counsel was advised at the hearing of the appeal that an extension of time would be granted. There should also be a grant of leave to appeal. Accordingly, it is convenient to refer to Mr Valentine as the appellant.

Amended grounds of appeal were filed on 18 October 2022. The amended notice contained 21 grounds, of which one was abandoned and seven involved claims that the verdicts were “unreasonable”. Three grounds were generic, applying to the convictions in respect of all complainants. The remaining ten grounds were directed to specific matters in relation to separate complainants.

In oral submissions, the appellant’s counsel focused on the three generic grounds applying to all of the complaints, which were formulated as follows:

Unsurprisingly, each of the challenges raised on behalf of the appellant reflected in some respect the difficulties caused by the lapse of some 45 years from the date of the conduct complained of until the trial. Not only were there the usual consequences arising from loss of documents, and impaired memory, but also from the fact that in some cases witnesses had written about their experiences and in others had given evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse.

There were specific complaints dealing with the manner in which the trial judge addressed apparent inconsistencies in the evidence, the disallowing of certain lines of cross-examination and possible misattribution of the appellant as the perpetrator of offences. Ultimately these elements were crystalised in ground 19 as a complaint that the judge gave too much weight to demeanour-based findings as to the credibility and reliability of the complainants’ evidence and, in ground 21, her failure to be satisfied that the evidence of the appellant gave rise to a reasonable doubt as to his guilt. These circumstances, the appellant submitted, supported a conclusion that the verdicts generally were “unreasonable, or cannot be supported, having regard to the evidence”, as provided in the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). Accordingly, the matters raised by the generic grounds are best addressed in relation to the claims of unreasonable verdicts.

The next question is, in what order should the allegations of specific error, the generic grounds and the unreasonable verdict grounds be addressed?

As to the task to be undertaken by this Court in addressing the unreasonable verdict grounds, the parties were agreed that the relevant guidance was to be obtained from the recent judgment of the High Court in Dansie v The Queen. [2] The Court affirmed the statement of principles in M v The Queen [3] and confirmed that the same principles applied to judge alone trials, in accordance with Filippou v The Queen. [4] The function of this Court is therefore to carry out an independent assessment of the evidence in order to determine whether it entertains a reasonable doubt as to the guilt of the accused, and then, if so, to consider whether that doubt was capable of being resolved by the advantage of the trial judge in seeing and hearing the witnesses.

On one view it would be wrong, in undertaking that exercise, to review the findings of fact made by the trial judge applying some principle of “deference or restraint”, [5] before identifying error on her part; the court must not accord “undue attention” to findings of fact made by the trial judge. [6] On the other hand, in Pell v The Queen, [7] the Court said that an intermediate court of appeal, in undertaking its own assessment, did not have to disregard the fact that the jury had evidently accepted the prosecution witnesses as “credible and reliable”. [8]

Dansie was a case in which the deferential approach adopted by the majority and the “independent” assessment undertaken by the dissenting judge in the South Australian Full Court affected the outcome; this too is potentially such a case. That may be illustrated by the fact that, if the Court were to accept that limited weight should be given to demeanour-based assessments of the witnesses, the outcome would inevitably turn on this Court’s independent assessment of the whole of the evidence.

For reasons which will be explained, the common elements of the complaints as to the behaviour of the accused amounted to a powerful prosecution case; nor should the proposed rejection of demeanour-based findings be accepted in the terms in which it was presented. On the one hand, it may be appropriate to accord less weight to the trial court’s ability to resolve doubts where oral testimony constitutes the bulk of the evidence and relates to events which have occurred long ago. On the other hand, the appropriate weight will inevitably turn upon the circumstances of the particular case.

Further, this was a case in which the trial proceeded over some 35 days. In such circumstances, the appeal court will be conscious of its inability to recreate the whole of the trial from the papers. Exchanges between counsel and the judge explored issues which may appear to have played little weight in the judgment, but may well have coloured the presentation of evidence and final addresses. Again, there is a countervailing consideration: where the appeal court has the benefit of lengthy reasons for judgment, it may well feel it has a greater understanding of the trial than it would in cases in which the verdicts are those of the jury.

In Dansie, the South Australian Court of Criminal Appeal dealt first with specific challenges to the reasoning of the trial judge, which were unanimously rejected. [9] There was no criticism of that approach in the High Court. Further, Nicholson J, who was in dissent in the Full Court, but whose approach was upheld in the High Court, noted that there was little dispute as to the primary facts, nor as to findings made by the trial judge as to the facts. [10] There is no objection to summarising the evidence as found in the judgment of the trial judge, so long as an independent assessment of the evidence, rather than mere acceptance of contested findings by the trial judge, is in due course undertaken.

There is, however, merit in dealing with specific complaints before considering the unreasonable verdict grounds. That is for two reasons. First, if a specific ground is made out, other than the need to determine whether there should be a retrial, some time may be saved in not having to deal with an examination of extensive evidential material. Secondly, important aspects of the evidence will be revealed in addressing the specific challenges. For that purpose, it is convenient to deal with the grounds in particular categories, as arranged by counsel for the appellant in her address. However, it is not sensible to address the generic grounds without a detailed account of the offending the subject of the convictions. Before doing that, however, it is helpful to provide some general background to the nature of the prosecution case.

It is convenient to refer to the two institutions at which the appellant worked at the relevant times as “Parramatta” and “Daruk”. Each was a home then under the control of the Department to which young persons could be sent by the Children’s Court if found, in the terms of the Child Welfare Act 1939 (NSW), s 72, to be neglected or uncontrollable, including where “exposed to moral danger”: s 72(n). Inmates were subject to a strict regime and there were forms of punishment administered to those who failed to conform.

In January 1971, the appellant was employed as a Deputy Superintendent at Parramatta. The Acting Superintendent at the time was a Mr Mayhew, but he was replaced about a month after the appellant commenced by Gordon Monaghan, who was the Superintendent throughout the period of the appellant’s employment. There was a second Deputy Superintendent, Mr Gilford. (There was a fourth male officer, Mr Greenham, who was said to be available as a relieving officer, but the appellant gave evidence that he was not called upon.)

The institution was housed primarily in a three-storey building with a central area and two wings. It contained offices for the staff, a holding room, shower block, “dungeon”, covered way, clothing store, toilet block, recreation room, dining room, kitchen, scullery, muster area, and officer’s dining room. There were two associated buildings known as Bethel House and Keller House. The dungeon was also referred to as the “below ground level room” and the “cellar area”. The appellant gave evidence of being shown around the institution by the matron, who warned him not to go into the shower block or the cellar area, both being her responsibility. He said he was also advised in an initial tour undertaken by Mr Mayhew not to go into the cellar area.

The appellant gave evidence that he recalled the girls lining up at about 8.05pm in the “covered way” to say goodnight to him. He said that he would say goodnight to each girl by her first name. [11]

At the time of the alleged offending, the appellant was in his early 30s. He had a short beard, but no moustache. As there were only three male officers regularly at the institution, and in circumstances where the appellant knew each of the girls by her first name, and the girls called him “Mr Valentine”, subject to questions of recall, there was limited opportunity for misidentification of an assailant. However, that issue did arise with respect to three of the complainants. The judge noted that the other two male officers identified by the appellant as working at the institution whilst he was there, Mr Monaghan and Mr Gilford, were deceased or not able to be located. Neither the matron nor two youth workers who assisted at the institution gave evidence. [12]

Some further general background evidence was provided by Barbara Preston, a psychologist employed by the Department who visited Parramatta one day a week in 1972 and 1973. She described a culture of “strict, very set rules or very set behaviour” and said there was “regular, … frequent punishment”. In evidence summarised by the trial judge at [79] she stated that:

The judge accepted that punishments were imposed, contrary to the rules, which exceeded the period of 24 hours and that “the dungeon” was used as a place to punish girls. [13]

There being a statutory prohibition on the publication of material identifying the complainants, despite all now being mature adults, some of whom have spoken publicly of their experiences, it is necessary, although depersonalising, to refer to them anonymously. This judgment uses letters.

There were three counts on the indictment relating to Ms AA, each of which alleged an assault committed between 30 April 1971 and 23 July 1971, accompanied by an act of indecency, contrary to s 76 of the Crimes Act 1900 (NSW), as then in force. The appellant was convicted on each count.

There were five grounds of appeal. Ground 3 challenged the admission of a first complaint by Ms AA to her sister, which allegedly took place about six months after her release from Parramatta. There was an issue with respect to the identification of the appellant as the perpetrator of the offending. Ground 4 complained that the trial judge had failed to warn herself in respect of particular matters which gave rise to the possibility of a mistaken identification of the appellant. Ground 2 alleged that the judge had erred in finding that Ms AA satisfactorily accounted for “not nominating the appellant as perpetrator” in an autobiography written years before her complaint to the police. Ground 1 alleged a prior inconsistent statement by the complainant in her autobiography. Ground 5 asserted that the verdicts were unreasonable.

There is logic in dealing first with ground 3, challenging the admissibility of a complaint by Ms AA to her sister. In other respects, grounds 1, 2 and 4 may best be understood as supporting the unreasonable verdict ground. However, before turning to the specific grounds and the admissibility of the complaint, it is necessary to outline the events giving rise to the charges.

Ms AA was 15 years of age and pregnant when she was received at Parramatta on 10 May 1971. She remained there for a little over two months. Her evidence was that on three occasions, which she said were consecutive days, the appellant had approached her while she was sitting on a bench near the covered walkway, having been given a glass of milk, whilst the other girls were at muster and exercising. On each occasion, she said that the appellant put one arm around her shoulder and slipped his left arm under the wrap of her dress so that he could squeeze or cup her right breast. The appellant, in his evidence, accepted that there would have been an opportunity for him to act as alleged, but denied that any such conduct took place.

Her description of the third occasion was more detailed than those of the first two. She said: [14]

In her evidence-in-chief, she was asked if she had told anybody about what the appellant had done and said: [15]

The cross-examination was interrupted, but the prosecutor came back to the issue later and asked her if she had written a book. She said that she had, “probably the late 80s but it wasn’t published until 1990”. [16] She was asked if she had made reference to what the appellant had done to her when she was in Parramatta and she said: [17]

In cross-examination she was taken to her statement to the police in September 2014. She agreed that she had said, “during this statement, I disclosed for the first time in my life the indecent assaults that I endure[d] at the hands of Mr Valentine on the covered walkway”. [18] She also agreed that another officer had specifically asked her about “Mr Valentine” before she gave the statement. [19] She was then asked about what she had told the publishers about scrubbing the stairs and agreed she had not told them about the assault by Mr Valentine. When asked why not, she said: [20]

She was asked about other things she had said in the book, including her experience of giving birth, stories of gross abuse at Minda, the home to which she was taken after Parramatta, and of being dragged out of her bed by police after she had returned home.

She gave evidence in chief that the only two male staff she could recall by name from her time at Parramatta were Mr Gilford and Mr Valentine. She then gave the following evidence: [21]

In cross-examination, she was challenged as to her identification of Mr Valentine as the offender, and as to the commission of the offences.

The judge admitted, over objection, evidence of her sister (Ms HS) to whom she said she had complained of the incidents some six months after leaving Parramatta. Ms HS, who was eight years older than Ms AA, said she had visited Ms AA once in Parramatta but she had said nothing at that time; however, in 1972 (the year Ms HS’s daughter was born) she had a conversation with Ms AA as to which she gave the following evidence: [22]

There appears to have been no objection taken to the evidence of Ms HS until the evidence had been completed. [23] The objection focused on two matters, namely the content of the complaint as recounted by Ms HS, which was not in the same terms as that recounted by Ms AA, and, secondly, the fact that the appellant was not named. Counsel for the appellant contended that there was a negative representation made arising from the failure to name the appellant.

On 2 April 2019, the judge ruled, with limited reasons, that she would admit evidence of complaint in relation to Ms AA, but not in relation to two other complainants. The judge gave particular significance to the principle that some incidents are of such consequence and of such a nature that the passage of time does not dull the memory. With respect to Ms AA, the evidence involved “a conversation with her sister less than a year after her release from the institution”. The evidence was admitted. (With respect to the other two complainants, the evidence was admitted, but limited to the question of credibility, and not as evidence of the truth of the content of the complaint.)

Section 66 of the Evidence Act 1995 (NSW) provides:

For present purposes, the evidence which Ms AA gave was of three instances of touching her breast, but not of touching her genitalia. Ms HS’s evidence was consistent with that complaint, although it went further and in that respect was inconsistent with Ms AA’s evidence. However, that did not affect its admissibility. The complaint, as is usually the case, was incomplete and in important respects. Its ultimate value, however, in the present case was to contradict any suggestion of recent invention. To the extent that the appellant’s case was not that the events did not occur, but that he was not the party responsible, the complaint had no probative value. However, it was not tendered to support identification, but as evidence that the conduct occurred, without which the identity of the culprit did not arise. The appellant’s denial cast doubt on the happening of the event which involved him. There was no reason to suppose that the complaint, so far as it went, did not satisfy the criteria in s 66(2)(b) and (2A). Ground 3 should be rejected.

Ground 1 addressed a statement in Ms AA’s autobiography, an extract from which was tendered as exhibit 14 at the trial. In chapter 6, describing the regime at Parramatta, she wrote:

This statement was relied upon in cross-examination as inconsistent with her description of the three assaults, which she said occurred after she had had her glass of milk, but at a time when the other girls were on muster, and she was not. The actual inconsistency is hard to identify: the account cannot easily be read as implying that the milk was supplied while the girls were all together having breakfast. Ground 1 alleged that the trial judge failed “to have regard to” the prior inconsistent statement.

Assuming there was a material “inconsistency”, I do not read the judgment as ignoring the earlier account. In describing the evidence of Ms AA and the accused, the judge noted that the accused had denied the offending and had stated he never worked three morning shifts in a row. [25] (This evidence was directed to Ms AA’s claim that three assaults took place on consecutive mornings.) The judge also noted that the accused “confirmed the provision of milk to the pregnant girls at the time the other girls from dormitories 1 to 5 were meeting to attend muster”. [26] That sentence reflected one aspect of the cross-examination in relation to opportunity. The relevant questions and answers were as follows: [27]

The judge clearly accepted the evidence given by Ms AA of the morning routine, which was confirmed by the appellant. Whether the description of the morning routine in the autobiography was relevantly inconsistent with the oral evidence may be doubted but the judge was entitled to accept the oral testimony of both parties without addressing the possibility of inconsistency in a document which did not address the conduct the subject of the charges. The trial judge focused on the significance of the evidence; there was no error in failing to refer to one piece of evidence which was not of any particular significance, read in context. Ground 1 should be rejected.

Ground 2 alleged that the judge erred in finding that the complainant had “satisfactorily accounted for not nominating the appellant as perpetrator in her autobiography written years before her complaint to the police on account of the ‘timing and manner of disclosing sexual offending as being intensely personal’”.

After addressing the question of opportunity, the judge turned to a number of further challenges raised by the appellant. One was Ms AA’s failure to complain whilst at Parramatta; [28] a second was the significance of her complaint to her sister. The judge referred to the fact that Ms AA had acknowledged that her statement to police was “the first time she disclosed the indecent assaults by the accused”. Ms HS had also given evidence that Ms AA had identified the appellant as the person who assaulted her at about the time there was media reporting of the Royal Commission. The judge continued:

The reasons then dealt comprehensively with the history of Ms AA’s contacts with the police, knowledge of the appellant being named in the Royal Commission, and her communications with her solicitor. The judgment continued:

In making findings with respect to the counts involving Ms AA, the judge noted that Ms AA did not refer in her statement to police to the appellant having a beard, but did so in her evidence. The judgement also noted the doubt cast on whether the appellant would be rostered on three mornings in a row and continued:

It is clear from these passages that the words quoted in ground 2 were not specifically directed to nominating the appellant as the perpetrator, but as relating to the disclosure of the offending. So far as the non-disclosure of the offending in the 1990 autobiography was concerned, the judge gave careful attention to the possible reasons, but ultimately accorded them limited weight in circumstances where she accepted the evidence of complaint many years earlier to Ms AA’s sister, Ms HS. Ground 2 should be rejected.

The strength of the evidence in support of the findings is a separate matter to which it will be necessary to return in addressing the unreasonable verdict challenges.

Ground 4 alleged a failure by the trial judge to warn herself “in respect of the particular matters which gave rise to the possibility of the mistaken identification of the appellant by [Ms AA]”. In written submissions the appellant asserted that the judgment referred to, but did not “disclose analysis, of the inherent problems in the timing of [Ms AA’s] nomination of the appellant as perpetrator including no reference at all to the absence of evidence from anyone that she nominated the appellant’s name until after such time as Detective Paul first raised it nor that [Ms AA] did not identify the appellant by his photo”.

Apart from the reference to the failure to identify the appellant in a photo identification process, the description of the judge’s alleged failings does not conform to the discussion in the judgment, significant parts of which have already been set out. The judge expressly found that the evidence was “unclear” about precisely how the appellant’s name was first nominated, in the sense of the complainant identifying him in making a statement or a complaint.

There was lengthy cross-examination of Ms AA in relation to identification of the appellant by name and in relation to her description of him. She was cross-examined in relation to saying goodnight to the officers. [29] She was also cross-examined about her failure to select the appellant from a photo array. When asked if she was asked to pick the person out from a photo array she said, “No, I was not”. [30]

In so far as ground 4 suggested that the trial judge had not given herself the appropriate warnings with respect to mistaken identification, the challenge was based upon a false assumption as to the directions in fact recorded.

This is one of the warnings which a trial judge sitting alone is required to state, although the underlying purpose is to explain to a jury who may not be familiar with the risks of identification evidence what those risks may be. Section 116 of the Evidence Act, which was expressly addressed by the judge, refers to the special need for caution before accepting identification evidence and the reasons for that need for caution, both generally and in the circumstances of the case. The judge stated:

The judge observed that the accused would have been known to the witnesses through innocent interaction, but noted a possibility of misattribution: at [30]. The judge then set out the evidence concerning his appearance at the time. The general nature of the caution was more than adequately covered in the judgment.

As to the specific circumstances involving Ms AA, the judge took into account the delay in identifying the accused as the offender and the possibility of “contamination and suggestion”, earlier described as misattribution: at [433]. She again reminded herself of “the warning about identification”: at [434]. There was undoubtedly powerful evidence, as the judge noted, that the girls said goodnight to one or other of the deputy superintendents, by name, every evening. Ms AA had said that she remembered the girls being attracted to him because of the association of his name with Valentine’s Day.

The proposition that the trial judge did not give herself the necessary general and specific warnings in relation to the possibility of mistaken identification is without substance. Ground 4 must be rejected.

There remains the challenge with respect to the offending against Ms AA based on the verdict being unreasonable and unsupported by the evidence. This ground has, in effect, two limbs. One concerned the evidence of Ms AA; the other the denial by the appellant.

The evidence of the complainant in relation to the offending was clear; the identification of the appellant was not accompanied by any element of doubt. Accordingly, the evidence, if accepted, was capable of supporting the prosecution case.

Reading the transcript of Ms AA’s evidence provides no obvious basis for doubting its reliability. No material concession was obtained in cross-examination, but rather realistic possibilities of error were addressed and on occasion accepted, but not in terms which affected the issues in dispute. Further, Ms AA’s direct evidence of the offending was supported by the complaint to her sister, made within 12 months of the events occurring which was, in turn, supported by the sister’s evidence. On its face, the prosecution evidence does not raise any reasonable doubt in my mind.

A similar view may be taken of the evidence of the accused. Although he claimed no recollection of Ms AA, his denial of the conduct was otherwise unqualified. He conceded that the opportunity could have arisen, and largely accepted the circumstances at the time of muster as described by Ms AA. However, his denial of the offending with Ms AA cannot be viewed in isolation from his denials of other offending. The tendency evidence involving the separate complaints by the other complainants was potentially a powerful basis for rejecting his denial in relation to Ms AA, whom he did not recall. Accordingly, it will be necessary to return to the question of the unreasonable verdict after dealing with the other complaints.

A key element of Ms AA’s evidence was the repetition of three very similar events. However, it was not put to Ms AA in cross-examination that the repetition on three consecutive days could not have occurred because the appellant was never rostered to attend on three consecutive mornings. When the appellant was interviewed by police in relation to those allegations, he commenced by denying any recollection of a girl bearing Ms AA’s name, even when asked if it would assist his memory to know that she was pregnant at the time she was at Parramatta. Three allegations were described, the police questioning commencing in relation to the third: [31]

In respect of each event, the appellant responded to the police questions that it, or “that”, did not happen. He was cross-examined as to why he had not at that stage said, “well it couldn’t have happened because I didn’t work there three mornings in a row”. [32]

In his evidence in chief he was asked about the roster, claimed that he had no copies of the roster as his papers had been destroyed in a flood in 2011, but said that he had been able to reconstruct the three week roster. [33] He then gave the following evidence: [34]

When the accused was taken to the evidence of Ms AA he answered questions as follows: [35]

That evidence was expressly challenged in cross-examination. After dealing with his failure to raise the question of the impossibility of three consecutive days in response to the police questions, the prosecutor returned to what was now an adamant statement that, “I was never at Parramatta for three mornings in a row”. [36] It was suggested to him that, whatever the roster may have provided, he lived a five minute walk from the site and could have attended additional shifts on occasions. He rejected the suggestion. It was then put to him that his superintendent had prepared a report suggesting that he was “on duty as required by the roster for administrative staff which is an exacting one and does not hesitate to spend additional time on the institution when circumstances require it”. He denied that he undertook additional shifts, beyond those for which he was rostered on a regular basis. [37]

This denial of the possibility of the offending occurring at the same time of the day on three consecutive days does not readily suggest that the judge should have had a reasonable doubt as to the complainant’s evidence, for a number of reasons.

First, the manner in which the appellant raised it suggested recent invention. Not only was it not a response supplied to the police when the allegations were clearly and precisely put to him, but it was not the subject of cross-examination of Ms AA. When it was first presented in the evidence in chief of the appellant, it appeared to be derived from a reconstruction of the actual rosters. That was potentially significant, because it suggested the absence of a contemporary recollection and hence an explanation for why it had not been provided to the police. However, the evidence given in cross-examination indicated a clear memory of the circumstances as to the days on which the appellant worked.

Secondly, the only significance of the events being described as occurring on three consecutive days lay in the consistency of that description in Ms AA’s evidence. There was nothing inherent in the conduct which suggested that it was less likely to have occurred on three occasions over four days or even over five days. That possibility was not raised with the complainant.

There remains the possibility that having heard the appellant’s evidence, the trial judge may have formed the view that it was credible and reliable. That possibility may be rejected because the judge found otherwise. However, the position of the trial judge was unusually important in making such an assessment. Not only were the events recounted more than three decades after they occurred, but the appellant demonstrated a variable ability to answer questions. His evidence extended over nine days, but he was unwell on the second day (day 21) and there was no hearing as a result of him attending a medical appointment on what would have been day 24. On day 25 (21 March 2019) on being asked a question as to evidence he had given a week ago, he responded:

However, his answers on other days reveal no such difficulty in responding to questions. On one occasion the prosecutor asked a double question to which he responded, “you have asked two questions, which do you wish me to answer?”

Thus, this was a case where the dynamics of the trial, and the judge’s advantage in conducting the trial, were significant. It will be appropriate to return to ground 5 in dealing with general issues concerning the unreasonable verdict grounds.

Counts 4, 5 and 7 in the indictment involved allegations of rape by the appellant involving complainant Ms BB , pursuant to s 63 of the Crimes Act, as in force in the period from 3 February 1971 to 30 May 1973. Count 6 involved a charge of assault during the same period, contrary to s 61 of the Crimes Act, as then in force.

Ms BB was at Parramatta on two occasions, the first extending from 3 February 1971 until 23 September 1972 and the second from 22 November 1972 until 30 May 1973. [38] The records also revealed that she was removed to the harsher environment in an institution at Hay on three occasions within these two periods. It is clear that she knew Mr Valentine and provided a reasonably accurate description of him. She was the only female complainant whom the appellant remembered. When asked if Ms BB was a “particularly troublesome and recalcitrant inmate”, the appellant said: [39]

Ms BB described three separate occasions when she was sexually assaulted by the appellant. The first instance she described as occurring after she had refused work and the supervising female officer reported her. The appellant attended. The judge described her evidence as to what occurred in the following terms: [40]

The second occasion followed misbehaviour on her part in jumping on the beds in the dormitory. The appellant took her to an area known as the “isolation cell” and told her to take her clothes off. Having been bashed on the last occasion, she removed her clothes and he again had penile/vaginal intercourse until ejaculation.

The complainant alleged a third occasion in the “holding cell” although she was not sure how she came to be there. The judge’s description of the event taken from her evidence continued:

The appellant was convicted of each of the four charges.

Ground 6 alleged error on the part of the trial judge in refusing leave to defence counsel to cross-examine the complainant in respect of allegations made concerning sexual impropriety on the part of the Deputy Superintendent Gilford. Ground 7 alleged error in the conclusion that Ms BB provided “acceptable reasons” for failing to disclose the appellant’s sexual misconduct in statements made to the Royal Commission. A complaint about the judge’s demeanour findings in ground 8(a) was abandoned. The remaining ground, ground 8(b), alleged that each of the verdicts involving Ms BB was unreasonable. Again, it is convenient to deal with the first two specific grounds before turning to the question of unreasonable verdicts.

Ground 6 alleged error on the part of the trial judge in failing to permit counsel for the appellant to cross-examine complainant Ms BB in relation to complaints about other criminal assaults on her whilst in Parramatta, not by the appellant, but by Deputy Superintendent Gilford. It was not disputed that the line of questioning would disclose or imply that the complainant had “taken part in” sexual activity, other than activity with the appellant. Such questioning would therefore fall within the prohibition in s 293(3) of the Criminal Procedure Act, there being no dispute that the proceedings were in respect of prescribed sexual offences, for the purposes of s 293(1). [41] It is, however, convenient to set out the first three subsections of s 293, together with subs (4)(a), which provided the exception to the exclusionary rule upon which counsel for the accused relied at trial. Those provisions read as follows:

Before considering the operation of those provisions in the current context, the following points should be made by way of introduction.

First, as recorded in some detail by Leeming JA in Jackmain (a pseudonym) v R, [42] this section has been the subject of extensive criticism, both judicial and by law reform agencies, on the basis of its potential to work unfairly against the interests of the accused. That may be so, as in Jackmain itself, where an accused, denying that sexual activity of the kind alleged by the complaint has occurred, seeks to rely on prior false or fabricated complaints made by the complainant involving other persons. No such issue arises in the present case.

Secondly, although some of the criticisms supposedly turn upon the failure of the exclusionary rule to identify the purpose for which the evidence is sought to be adduced, purpose will not always be problematic. Indeed, in many cases purpose will have been addressed in respect of the preliminary question, namely whether the evidence would be relevant in the sense that “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”: Evidence Act 1995 (NSW), s 55(1). [43]

Thirdly, although the appellant’s submissions on this issue in this Court ran to some 63 paragraphs, the oral submissions before the trial judge on behalf of the accused ran to less than two pages of the transcript. The trial judge gave reasons for her ruling refusing to permit the proposed cross-examination of the complainant, which dealt with the submissions made to her, rather than the more detailed submissions made in this Court. Indeed, the submissions in this Court sought to rely upon passages in Ms BB’s oral evidence at trial, which material was not available at the time the judge gave her ruling. Although Ms BB later returned to the witness box to give some further brief evidence, the application to cross-examine on her complaints with respect to Mr Gilford was not renewed.

Fourthly, evidence as to the alleged offending and its surrounding circumstances is admissible under subs (4)(a); evidence of sexual activity on other occasions (that is, not at or about the time of the alleged offence) is not. When assessing the admissibility of evidence sought to be adduced by a defendant, it is well to remember that a complainant may also be prevented from giving such evidence.

The purpose articulated by counsel on the application at trial was, in substance, twofold, but in both respects it relied upon the correctness and truth of allegations made in relation to Mr Gilford before the Royal Commission. One purpose was to suggest to the complainant that her claims with respect to the appellant involved misattribution. That is, many years after the events in question, she had attributed to the appellant the acts of Mr Gilford. Secondly, counsel sought to rely upon the fact that she had made specific allegations with respect to Mr Gilford (and a Mr Maxwell at Hay) in passages in her evidence to the Royal Commission, which made no mention of Mr Valentine. The fact of the allegations against third parties, but not against the appellant, it was submitted, allowed the inference that her memory of the events was (as she largely conceded) patchy and unreliable.

The purpose of the proposed cross-examination may, however, be put to one side. As Gleeson CJ observed in R v Morgan [44] in considering the approach to be taken to an earlier version of this statutory provision, “the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)”. In this case, the prosecutor did not challenge the proposition that the defence of misattribution would be enhanced, and indeed might depend upon, the complainant having been raped or otherwise abused by someone else at Parramatta.

Accordingly, it is sufficient for present purposes to determine whether the evidence sought to be adduced fell within the exception in s 293(4)(a). The requirements of that provision were described in the submissions as involving a temporal element and an interconnection element. It is preferrable, however, to keep in the forefront of the consideration the statutory language. This required that the evidence sought to be adduced was evidence “… of sexual activity… taken part in by the complainant, at or about the time of the commission of the [offences alleged against the appellant]”, and were “of events that are alleged to form part of a connected set of circumstances in which the [charged offences] were committed”.

In her police statement prepared in 2014, Ms BB alleged that each of the three offences committed by the appellant occurred during the first period of her committal to Parramatta between 24 August 1971 and 11 March 1972, a period of some seven months. In her statement, she described, after her release from Parramatta on 23 September 1972, driving past the building one evening, seeing Mr Gilford out the front and throwing a rock at him. He responded indicating that he recognised her and would be “waiting for” her when she was returned. The abuse by Mr Gilford allegedly started on her second committal to Parramatta, in November 1972.

It is clear that, for historical offences where proceedings take place decades after the events the subject of the charges, and particularly where the victims may be deeply damaged individuals, imprecision as to dates is to be expected. Nevertheless, on the material before the trial judge at the time she ruled on the application, there was no evidence of complaint of sexual abuse by Mr Gilford during the seven-month period in which the conduct the subject of the charges was said to have occurred. However, it does not follow that the questions posed by subs (4)(a) will need to be judged against some lesser standard than if the events in question had been more recent in their occurrence. Indeed, where very young children are the victims, allegations of relatively recent events may involve a significant element of temporal imprecision. Further, while the purpose of the evidence (to base an assertion of misattribution) might mean that the temporal element was less significant than in other cases, it does not follow that the criterion is differently applied in such a case, the purpose being immaterial.

Further, in considering the criteria in subpars (i) and (ii) of subs (4)(a), questions of timing and interconnectedness are not to be judged simply on whether there is sufficient connection to make the evidence relevant to a defence, as that is a precondition to the application of the exclusionary rule.

In a judgment delivered on 15 February 2019, shortly after the completion of oral submissions, the judge noted that the appellant had relied upon evidence tendered in support of an earlier application, being exhibits VD2 and VDB on the voir dire. Exhibit VDB was Ms BB’s statement of 21 March 2014; Ex VD2 was a document of over 200 pages, which had been tendered on an objection to the evidence of Ms BB’s husband. Apart from her statement and statement by her husband of more than 20 years, which included complaint evidence involving the appellant, the relevant material was to be found in three pages of oral evidence to the Royal Commission. It is convenient to set out part of the complainant’s statement to the Royal Commission, which included the following passages under the heading “Parramatta Girls”:

Turning to her oral evidence before the Royal Commission, she was questioned in relation to her statement that she was repeatedly bashed and sexually abused by Mr Gilford and Mr Valentine and had said, ambiguously, “he once threw me down three flights of stairs”. She was asked to clarify whether it was both of them and she described both grabbing her and throwing her down the stairs. She continued:

Later in her evidence she was taken back to the statement that she was repeatedly bashed and sexually abused and asked if the sexual abuse was by Mr Gilford. She responded that she was “referring to both of them”; “I’m referring to them both because that’s what they both did – both Valentine and Gilford used to do that”. She was asked whether “they” referred to them doing something together or separately. None of the answers given to the Commissioner clarified the ambiguities.

There were two separate segments in her examination at the Commission, one by counsel for Mr Valentine who suggested that she had confused Mr Valentine with Mr Monaghan. She responded:

The trial judge commenced by considering the question of relevance. She stated: [45]

After referring to a number of authorities, the judge referred to the question of relevance stating: [46]

On the appeal, counsel for the appellant submitted that the judge was in error in dismissing the proposed cross-examination as irrelevant. In my view, that submission should be accepted. In considering relevance, the purpose of the proposed cross-examination must be taken into account. The fact that the defence was not that she had not been raped, but that she had been raped by another man, necessarily requires a suggestion that there was sexual activity involving someone other than the accused. Accordingly, questions designed to elicit such evidence were relevant. Given that circumstance, the exclusionary rule in s 293 was engaged. Accordingly, the critical question is whether the exception in subs (4)(a) was engaged.

There was no attempt to question Ms BB on the voir dire. The material relied upon was the police statement she had prepared in 2014 and her evidence to the Royal Commission. That evidence supported the conclusion that she had been physically abused and raped by Mr Gilford. However, the evidence did not support the conclusion that sexual activity engaged in by Mr Gilford occurred at or about the time of the offences alleged against the appellant. Rather, her primary evidence was that they occurred months apart. The ambiguity in her oral evidence at the Commission was resolved by the denial that they both raped together or in circumstances which were broadly contemporaneous. Yet that is the intended scope of criterion (i) which requires that the other sexual activity occurred “at or about the time” as the offending. There was no material before the trial judge to support such a conclusion and she was correct to find that it was not made out.

Secondly, the events the subject of the proposed questioning had to form “part of a connected set of circumstances in which” the alleged offending by the appellant occurred. As has been noted in the cases, the statutory language envisages a coherent set of events which encompass the charged conduct. The common elements were that each was undertaken by an officer having control over the complainant at a time when she was in his custody. However, on no view was that a sufficient basis to satisfy the statutory language. It is likely that where the necessary degree of contemporaneity is not satisfied, the necessary connected set of circumstances will not be satisfied either. It is neither necessary nor appropriate to speculate as to examples which might satisfy criterion (ii).

The trial judge was correct to reject the questioning with respect to the assaults by Mr Gilford. Ground 6 must be rejected.

In the course of cross-examination, Ms BB was challenged as to her failure to give evidence of the offences now alleged with respect to the appellant, when preparing her statement for the Royal Commission and in giving oral evidence before the Commission. The judge stated that she “provided acceptable reasons” for the omission. Ground 7 stated that the judge erred in concluding that Ms BB provided “acceptable reasons” for failing to disclose the appellant’s sexual misconduct to the Royal Commission.

There is a degree of artificiality in selecting one aspect of the credibility challenges and asserting error on the part of the trial judge in rejecting the challenge. The witness provided (and repeated on several occasions) a reason for not entering into details about the rapes before the Royal Commission. The judge accepted the reason as sufficient to deny that the absence of complaint on that occasion cast doubt on the credibility of Ms BB’s evidence. Two factors should be taken into account in assessing that finding. First, the reason was not inherently implausible; secondly, the judge’s assessment of the credibility of the witness was not (and should not) have been undertaken on a piecemeal basis, but rather by having regard to the overall effect of particular challenges. There is no doubt that the judge did that. However, it is convenient to set out the key passages in the evidence which were relied upon as a basis for doubting the veracity and reliability of Ms BB’s evidence: [47]

Ms BB was also pressed with the fact that she had the opportunity to discuss that aspect of her abuse with the Royal Commission; she repeated several times her explanation that it was a very hard thing for her to do “in a room full of strange people”. In assessing Ms BB’s evidence, the trial judge observed:

Although the trial judge stated that the transcript does not do justice to the calibre of Ms BB’s evidence, it does reveal a witness who answered questions clearly, consistently and intelligently. For an Indigenous woman who was a member of the stolen generation, who continued to suffer from (and described) the effects of childhood abuse, the evidence is apt to strike the reader as persuasive. This is a matter to which it will be necessary to return when considering the unreasonable verdict ground (ground 8). Ground 7 is without substance and should be rejected.

Ms CC was held at Parramatta for a period of some six months when she was 15 years of age, in 1971. Two of the four incidents the subject of the charges involved the appellant visiting Ms CC when she was in the sick bay, suffering from injuries to her knees as a result of being ordered to kneel for long periods. She believed that she was locked in but that he had a key. There was no-one else in the sick bay at the time. She described him walking over to her bed, starting to rub her knees and then running his hand up under her nightie, putting his hand in her underwear and touching her vagina (count 8). She thought that the noise of her protests made him stop. [48] Ms CC said that he then came back the next day, late in the afternoon when everyone else had gone. He said to her: [49]

Her evidence continued: [50]

After she screamed and yelled to him to stop he finally did and said: [51]

That conduct constituted count 9. Counts 8 and 9 were both allegations of indecent assault.

The remaining three counts occurred in his office and in the holding room. Her arrival in his office was described in the following terms: [52]

Whilst in his office, he closed the door, and came up behind her and said she was “nothing but trouble”. [53] She then described him as pressing his body against her so that she “knew that he had an erection at the time”. [54] He then walked to the other side of his desk, and “proceeded to rub himself on his crotch”. [55] He yelled at her that, “Youse are all … whores”. And then stood beside her pushing against her and “I knew that he had a full erection”. [56] This conduct was count 10 on the indictment, another charge of indecent assault. She was asked what happened next: [57]

The last act was charged as a common assault, being count 11 on the indictment.

On the fourth occasion Ms CC was standing with other girls under the covered way and something started them laughing and she just continued laughing. The appellant approached and screamed out, “It’s not a party, you’re not here for a party, you’re here for punishment”. [58] She said he grabbed her by her shoulder and dragged her to the holding room. He accused her of having contraband, pushed her against the wall and told her to put her arms out to the side like a plane. [59] He then ran his hands over her, rubbed her breasts, and when he was “down near my thigh area, he started lifting my dress up”. He then put his hand inside her underwear and grabbed her vagina. She asked him to stop, said that she had nothing, to which he said, “Well this is the most place that they all hide it”. [60] That conduct constituted a further indecent assault (count 12).

As formulated, ground 9 alleged that the judge “erred in failing to apply the special need for caution in respect of [Ms CC’s] nomination of ‘Valentine’ as perpetrator”. However, the thrust of the submissions was rather that “her nomination and identification of the appellant was the result of suggestion, and motivated by monetary reward”. [61]

It is not in dispute that the judge took into account the circumstances in which she came to complain, namely in response to an advertisement placed by a solicitor, Mr Kelso, who acted for various complainants in seeking compensation from the State government. However, the judge was satisfied that Ms CC accurately described the appellant, consistently with photographs of his appearance at or about the relevant time (1971). The judge also accepted that Ms CC had ample opportunity to see the appellant whilst at Parramatta. [62] The judge accepted that Ms CC first came forward to claim compensation from the government for the abuse which had occurred prior to the closure of Parramatta in 1974. She was not persuaded, however, that “seeking and obtaining compensation does undermine her reliability”. [63]

Ms CC was asked whether she told anybody at the time that these things had happened and she said, “No”. [64] She was also asked if she told anybody when she got out. She appeared to deny that and when asked to explain said: [65]

She also said, “I distinctly remember that” and that she was sitting underneath the covered way just before she was about to leave and went to the office to get changed. [66]

Ms CC never went back to Parramatta and said she had no contact with ex-Parramatta girls. Although she told Mr Kelso that she had been sexually abused, she did not give him details and he referred her to Detective Paul. She was asked in chief: [67]

Ms CC was cross-examined at some length as to the building in which the sick bay was housed. She consistently said to police, and in her evidence, that she could not identify the building accurately. The purpose of the cross-examination was not entirely clear. It was not suggested that she was never in the sick bay; it was suggested that her first visit to the sick bay was for a urinary tract infection, which she denied. She agreed that on no occasion did the appellant penetrate her vagina. [68]

It was clear from her evidence that the primary injury which she said she suffered at Parramatta was fluid on the knees, which became a recurrent problem. It was that which she complained about in her statement to Mr Kelso for the purpose of seeking compensation.

The judge set out a summary of Ms CC’s evidence, noting the denial by the appellant of ever entering the sick bay, or being aware that his key gave him access to the sick bay. [69] That evidence included a description of Mr Valentine, including a comparison with Mr Monaghan and Mr Gilford. Ms CC described the appellant as having a dark beard and hair, the beard being described as “like Abraham Lincoln’s”. [70] The judge noted that Ms CC had selected a photo of the appellant from the photo parade at which time, she stopped when she saw it, “looked for a period of time and commenced crying”, before writing the number down and continuing to view the remaining photos.

Ground 9 in substance conceded that the judge had given herself an appropriate warning with respect to “the special need for caution in respect of [Ms CC’s] nomination of ‘Valentine’ as perpetrator”, but stated that the judge failed to apply the warning. Referring to Domican v The Queen [71] counsel for the appellant noted that a warning as to the dangers of convicting on identification evidence “where its reliability is disputed” should include reference to “any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence”. The judge did this in the following passages:

The substance of the challenge in relation to the failure to apply the need for caution in considering identification evidence was largely based on the fact that the judge relied in part on her observations of the witness set out at [443]. It will be necessary to return to the generic complaint about reliance on presentation in the witness box, but for present purposes, it is sufficient to note that the judge was entitled to rely on demeanour-based findings.

Ground 9 is without substance and should be rejected.

As with the other complainants, this ground will be addressed below.

The appellant was charged with ten counts based on the evidence of Ms DD. The judge found the appellant not guilty in respect of seven counts, but guilty in respect of three (counts 20-22). Accordingly, only the latter group is presently relevant. Count 20 was a charge of assault occasioning actual bodily harm; count 21 a charge of buggery, and count 22 an indecent assault.

Ms DD’s first statement implicating the appellant was prepared on 9 December 2015 and emailed to Mr Kelso. It contained a brief outline of her allegations. In February 2016 she prepared a detailed statement with police, at a time when she had “a vivid memory of the events”. However, she gave evidence that she “drank heavily and more so since reporting the accused’s conduct”. [72] She was unable to remember some of the incidents (of which she said there were five) when giving evidence. The judge set out her evidence in some detail. [73] Passages involving inconsistencies between her evidence and her earlier statements were identified. With respect to one charge of buggery (count 17) the judge noted that, while she gave evidence of a sexual act on the occasion referred to in count 17, it did not entail penetration. [74] Although the judge accepted that DD was a truthful witness seeking to give an accurate account of what occurred, the judge was not persuaded beyond reasonable doubt as to the first four incidents. The judge noted that there were “key facts she recalled but she became confused in recounting these incidents”. Verdicts of not guilty were therefore entered in respect of counts 13-19. [75]

The judge summarised her evidence in relation to the fifth and last incident in the following terms:

The judge noted that the description of these incidents was given in a different manner from that in which the other incidents were recounted, and Ms DD presented as having “a better recall of this occasion”. The judge continued:

The judge directed herself that, having had a reasonable doubt concerning the reliability of Ms DD’s evidence in respect of other counts, she should take that into account in assessing Ms DD’s reliability generally and in particular with respect to the final three counts. The judge did so, noting the “obvious concern about her accuracy on some occasions” but said she did not regard it as infecting her evidence as to the final three counts. [76] The judge concluded that she had been truthful and accurate with respect to those counts, and that there was no reasonable possibility of mistaken identification of the accused. Accordingly, the appellant was convicted with respect to counts 20, 21 and 22.

The only ground of appeal with respect to the convictions regarding Ms DD was that the verdicts were unreasonable having regard to the acquittals in respect of the first four incidents. The submissions in support of that challenge raised three issues, namely (i) the similarity of the events; (ii) reliance on the absence of inconsistency with earlier statements, where the earlier statements did not recount incident five in any detail, and (iii) the basis for the doubts as to the other matters could not do other than infect the account of the fifth occasion so as to raise a reasonable doubt as to its accuracy.

The lengthy email sent by Ms DD to Mr Kelso’s office on 9 December 2015 was in evidence. The fifth occasion was merely referred with the words, “I will never tell anyone what he made me do that day”. (It is clear from the context that the word “he” referred to the appellant.) Ms DD was re-examined as to what she was referring to in saying she would never tell anyone what he made her do and stated: [77]

Although it was true that no details of that event were described in the email, there was no suggestion in cross-examination that the event was not described in the police statement, which was taken over a period of some three days. The evidence in chief extended over more than two pages of transcript. There was no cross-examination as to the detail, nor did the cross-examiner suggest there was any inconsistency between the evidence she gave as to that event and her police statement (which was not in evidence).

The acceptance of that account by the trial judge was not based simply on the absence of inconsistency between her account in the witness box and a prior statement. Rather, it was primarily based upon the fact that she was struggling to remember what happened to her, and her explanation that her memory was much better when she made her statement to police. [78] After repeated statements that she was “struggling” to remember, she stated, “I remember that I was raped by Mr Valentine …”. [79] The prosecutor then introduced the evidence by saying, “tell us what you remember”, to which she responded: [80]

The fact that Ms DD was struggling to remember anything but the last incident, but could give a detailed account of the last incident, provided a firm basis for the trial judge’s acceptance of her evidence as to the last incident, whilst entertaining a reasonable doubt as to her accounts of earlier matters. Further, the nature of the incident and the cause of shame to Ms DD provided a clear explanation as to why she could then remember that incident.

The judge gave herself a clear direction as to the need to have regard to the complaints as to which she entertained a reasonable doubt in considering the last three counts. There is no suggestion she did not: the suggestion is that she could not have reasonably been satisfied as to the truth of the account of the last incident in circumstances where the witness was otherwise struggling to remember events. However, there were sound and rational bases for not accepting that the doubt she did entertain infected the last part of the witness’ account. Reading the transcript of the evidence given by Ms DD, taking account of the inconsistencies in the earlier evidence, but noting the clarity with which the last incident was described, although with apparent embarrassment, I do not consider that the conclusion reached by the judge was not reasonable. Further, the lack of cross-examination as to the truthfulness of the account of the last incident, other than by suggesting that the allegations were “simply a complete fabrication”, which she denied, [81] provided a further basis for the judge to accept Ms DD’s evidence as to the last three counts.

Ground 15 should be rejected.

The appellant was found guilty on one count of indecent assault of Ms EE, pursuant to s 76 of the Crimes Act, being count 24 on the indictment. The conduct complained of involved an allegation that, whilst in the shower area and about to put her clothes on, Ms EE bent over and felt a hand on her back and felt his finger go into her vagina. She turned around and recognised the appellant.

The event occurred at a time when no-one else was in the showers and she had been waiting to be transferred to Royal Prince Alfred Hospital for a post-surgery check-up.

Four grounds of appeal (grounds 11-14) were raised with respect to this conviction. Count 11 raised an issue in relation to the operation of s 293 of the Criminal Procedure Act (as then in force) in relation to the judge’s refusal to allow the complainant to be cross-examined in relation to earlier forms of her complaint, which, on one view, suggested the occurrence of other sexual abuse of the complainant, including by other officers.

Grounds 12 and 13 identified aspects of the judge’s reasoning which were said not to be open to her, or as involving a failure to warn herself of the possibility of mistaken identification. These grounds raise issues which can readily be addressed in the context of the unreasonable verdict ground, ground 14. For the reasons set out below, in my view that ground should be upheld with respect to this conviction, making it unnecessary to consider separately grounds 11, 12 or 13.

In dealing with the other unreasonable verdict grounds, it will be convenient to consider the manner in which evidence on various counts was cross-admissible as tendency evidence. The judge did not take account of the tendency evidence in reaching a conclusion with respect to Ms EE, but in my view, it would have provided no sufficient basis to overcome a reasonable doubt which arose for a discrete reason.

In summary, Ms EE identified the subject matter of the charge as having occurred on the day on which she was to be taken to Royal Prince Alfred Hospital for a check-up. The medical records established that her overnight stay for the initial procedure was on 6-7 April 1972. About a month later, on 9 May 1972, she returned for a post-operative check-up. A further post-operative check-up took place on 26 May 1972. [82]

In her evidence in chief, Ms EE stated that she remembered two follow up visits to the hospital, the first “was about four weeks after the first procedure”. She could not remember another visit. Her evidence in chief identified the offending as occurring on that occasion. [83] She confirmed that timing in cross-examination. [84] It was put to her in the course of cross-examination that the appellant was on leave from 8 May 1972 until 28 May 1972 and therefore was not present when she was taken to the hospital for her first check-up. She responded that he was present. [85] She was taken to the hospital record (Ex 3) in re-examination, but she was unable to obtain any further assistance from the record. [86] The departmental leave record (Ex 6) recorded that 21 days’ leave were taken over that period.

The trial judge dealt with this evidence in the following passages:

It was undoubtedly open to the trial judge to have regard to the evidence that the appellant was at Parramatta on days when he was on leave. That was a real possibility. However, the record that he had taken recreation leave for that three-week period ought to have led the judge to have a reasonable doubt that he was at work on the day the complainant nominated.

It was also open to the judge to find that the complainant was wrong in her attempt to identify with precision, more than 30 years later, the occasion on which the offence occurred. The evidence suggested that there were at least two post-procedure appointments at the hospital and, indeed, that she returned to the hospital for a further appointment on 20 June 1972. However, the complainant’s evidence was clear that the incident occurred “about a month” after the initial overnight stay at the hospital. Even if that period could reasonably be stretched to 23 May, that was still within the period of the appellant’s recreation leave.

In my view, the judge should have entertained a reasonable doubt as to whether the offending described by the complainant took place as she alleged. Clearly the judge had the benefit of hearing the complainant give evidence and hearing the appellant’s denials, including a denial that he was ever in the shower area, which was contradicted by other evidence, though not evidence relating to this specific incident. The doubt arises from a combination of the complainant’s evidence as to the timing of the offending and the documentary evidence that the appellant was then on leave. Such advantage as the trial judge enjoyed would not have assisted significantly in removing the reasonable doubt which, in my view, arose on the evidence. Accordingly, the appeal against conviction on count 24 should be upheld and the conviction quashed.

The only male complainant (MM) was at Daruk from 27 August 1973 until 20 February 1974. He was fourteen years of age in August 1973. Mr MM gave evidence that he was in fact released on 23 February 1974. [87]

The alleged offending in relation to Mr MM involved four counts of indecent assault and one of buggery. The first three counts occurred at a camp. The boys were sleeping in tents. During the night, Mr MM woke to find someone fondling his genitals (count 35). He identified the person as the appellant. He said that the appellant tugged on his leg and gestured to him to come outside. Outside the tent, the appellant told Mr MM to kneel and take his (the appellant’s) penis in his mouth. He held the back of MM’s head. Fellatio continued until the appellant ejaculated in Mr MM’s mouth (count 36).

On the evening of the next day, the appellant took Mr MM away from the camp and they walked to the top of a hill. Again, Mr MM was required to fellate the appellant until ejaculation (count 37). He described the appellant as being more violent on that occasion.

On another occasion, a staff member had placed Mr MM in solitary for a misdemeanour. He was released by the appellant who again told him to get on his knees and perform fellatio (count 38).

The fifth and most serious charge involved Mr MM being taken in a car by the appellant and his wife to a house some 40 minutes’ drive away. When they arrived, the appellant and Mr MM went into the house and the appellant’s wife left in the car to get food. Mr MM described the appellant sitting and then lying on the floor, pulling off his lower clothing and telling Mr MM to pull down his lower clothing and straddle him, sitting on his belly. The appellant then rubbed his penis around Mr MM’s anus and eventually penetrated him (count 39). Mr MM described the event as involving excruciating pain and causing him to defecate. It ceased when they heard Mrs Valentine return in the car.

The trial judge was satisfied that each of the events recounted by Mr MM occurred. There was no dispute that Mr MM was well known to the appellant and his wife, and they to him. The defence case was not one of mistaken identity, but rather fabrication. By seeking to identify discrepancies between Mr MM’s account and such information as could be derived from existing records and the evidence of the appellant and his wife, the defence sought to raise a reasonable doubt as to the truthfulness of Mr MM. Ground 16 averred that the trial judge erred in failing to have a reasonable doubt based on what was described as “uncontradicted” evidence. Grounds 17 and 18 alleged that counts 35-37 (the camp allegations) and the verdicts in relation to counts 38 and 39 were unreasonable. The nature of the grounds requires that they be addressed together, as they were in the appellant’s submissions. As the appellant correctly contended, if some matter were sufficient to raise a reasonable doubt as to one count, based on the unreliability of the complainant’s evidence, that doubt would necessarily be taken into account in assessing the reliability of other aspects of his evidence.

Mr MM gave detailed evidence as to the operations of Daruk. He said that he was assigned to one of four houses, known as Wolara (variously spelled in the evidence), and that each house had a housemaster. He said his housemaster was the appellant. The boys were graded in six sections, and if you behaved yourself you ascended to section 1. Mr MM said that he got to section 1 by good behaviour in three and a half or four months. [88] The highest status was to be transferred to a “privilege cottage” where the boys were largely unsupervised. He also achieved that status for a period.

The first issue on which he was challenged was his assertion that he met the appellant on his arrival at Daruk. The leave records indicated that the appellant was on recreation leave from 18 August until 26 August 1973 and that he had seven days special leave from 27 August to 2 September, in order to attend a residential school at the University of New England. He was then on recreation leave from 3 September to 9 September 1973. On the assumption that he did not attend Daruk between the two sets of leave, he would not have been present when Mr MM was admitted to Daruk on 27 August 1973.

Early in his cross-examination Mr MM confirmed that he met “Mr Valentine” on his arrival and said that the appellant introduced himself by name. Although he also said that the appellant’s appearance was “pretty distinctive”, he had not met him before that occasion. He was taken back through that evidence on the following day. A single question was put to Mr MM in cross-examination suggesting that the appellant was not at Daruk “on 22 (as said) August 1973”. Mr MM clearly understood the question as referring to the date of his admission and described the proposition as a “lie, that’s not correct”. [89]

The trial judge acknowledged that this aspect of Mr MM’s evidence appeared to be “contrary to objective evidence”, namely the leave records. The judge described Mr MM as “an impressive, reliable and thoughtful witness doing his best to recount his evidence”, [90] and rejected the appellant’s denial that he introduced himself on Mr MM’s admission on 27 August 1973. [91]

Was it likely that the appellant attended and carried out duties on a day when he was on leave? While there was evidence that the appellant attended at Parramatta on days when he was not rostered to work, he had a house a few minutes’ walk from the institution, allowing a plausible finding that he did so attend. However, until September 1973 (presumably at the completion of his recreation leave) he had not moved to Daruk, but was still living in Parramatta. It is therefore less plausible that he would have attended at Daruk on a day when he was on leave.

I would have had a reasonable doubt as to the accuracy of Mr MM’s account of meeting the appellant on 27 August 1973 at Daruk. However, nothing relevant to the offending occurred on that day, or for several weeks thereafter, and a doubt as to that aspect of Mr MM’s evidence has little significance in the overall assessment of his credibility or reliability.

Mr MM gave evidence that the camp occurred in January 1974. The appellant gave evidence that he recalled a camp taking place in March 1974, but Mr MM could not have attended that camp because he had been released on 20 February 1974.

The appellant gave evidence that if he had attended a camp in March 1974 it was “most unlikely” that there was another camp in January 1974. [92] The reason he gave was, “[b]ecause it was the middle of the school holidays, and youth workers and other staff didn’t wish to volunteer to go on a camp, they would rather spend the time at home with their own families”. [93] Although he had initially said he had “a recollection of going on one camp”, [94] he was then able to recount details of the camp in March 1974, including canoeing from Freemans Reach to Webb’s Creek on the first day. Mr MM had given evidence that he and two other boys, with the appellant and one other officer, canoed from Wisemans Ferry to Webb’s Creek at the start of the camp he attended. [95]

The defence also relied upon evidence from Lionel Barry Marshall who owned the site on Webb’s Creek which he provided to a Catholic youth group from about 1972 without charge. He gave evidence that the person in charge of the youth group was Laurie Maher, who was then the superintendent at Daruk. Mr Marshall said: [96]

His evidence was that the Catholic youth group brought the equipment on site, which was also used by the institutions. [98] He was asked if he had any responsibility for organising what groups were going to use it and when and he responded, “No, none whatsoever. No”. [99] He kept no track of the groups using the site by way of a roster or booking system.

The defence relied upon the inference that the Catholic youth group used the site throughout the school holiday period, so that it was unlikely that Daruk used it in January. Given that the primary contact between Mr Marshall and any of the camp site users was Mr Maher, the superintendent of Daruk, and that he, Mr Marshall, had no knowledge of the arrangements made for use of the camp, his evidence gave little more than a basis for speculation as to whether Daruk may have used the camp in January 1974. His evidence did not give rise to a real possibility in my mind that the camping trip described by Mr MM did not occur.

The prosecutor sought to draw a counter-inference from defence Ex 10, being a document dated 5 March 1974 and signed by the superintendent at Daruk which contained the following statement:

The inference sought to be drawn by the prosecutor was that the appellant had been involved in organising camping whilst at Daruk and prior to 5 March 1974. That could not have been the camp to which the appellant referred in his evidence, identified in Ex 8 as having occurred from 27-31 March 1974. That inference was supported by evidence from Bernard Hallam, who started as a youth worker at Daruk from about 1968, [100] until it was closed in 1985. [101] Mr Hallam said that “every couple of months or so there would be a camp or an outing going somewhere.” [102]

The “objective” evidence is not sufficient to raise a reasonable doubt in my mind as to the description by Mr MM of the camp he attended with the appellant whilst he was at Daruk. Further, the description of reaching the camp site by canoe with the appellant is consistent with the appellant’s own account of reaching the camp site in March 1974, at a time when Mr MM could not have been present. Reading the transcript of Mr MM’s evidence leaves me with no doubt that he attended a camping trip at Webb’s Creek whilst at Daruk and that the appellant also attended the camp. There was no explanation raised in Mr MM’s cross-examination as to how he came to fabricate an account about that camp, with the detail of the canoe trip acknowledged by the appellant.

There were two aspects of Mr MM’s time at Daruk which involved the appellant’s wife, Maris Valentine. The first concerned visits to the house in which the Valentines lived, next to the institution. He was asked if he had been to the appellant’s house on site and responded, “yeah, lots of occasions”. [103] He described the appellant introducing him to his wife; he thought that she “looked frail” and that there was a young daughter there. He said the appellant asked him to give his wife a hand with the washing and chores and Mr MM said that she looked frail, “didn’t look well to me and I thought that’s the reason”. [104] He remembered that they had a young daughter aged two or three. [105] He said that he did chores in the house, carrying the washing basket, vacuuming and on occasion picking up the little girl. He estimated that he did chores on three or four occasions. [106]

In his evidence in chief, the appellant was specifically asked: [107]

In cross-examination, he was taken to his evidence as to a photograph of Mr MM his wife had found in their personal possessions. He recognised Mr MM from the photograph. The prosecutor asked in cross-examination how it was that he could remember Mr MM and he stated that “he occasionally was volunteered to help my wife”. [108] He explained his earlier evidence on the basis that he did not offer Mr MM a position: “[t]he superintendent, Mr Maher, offered him a position”. [109] He agreed that his wife developed pneumonia and was “a bit weak and sickly from that”. [110] The appellant was cross-examined about the assistance given by his mother-in-law, and continued:

The appellant stated that he employed a woman to come and clean and agreed that Mr MM occasionally assisted his wife with chores. [111] He volunteered that Mr MM “would usually come with another boy”, naming the boy. The evidence continued: [112]

Mrs Valentine gave evidence in chief in which she recalled Mr MM by name and said that he would come to her house with another boy. [113] The evidence continued:

In cross-examination she agreed that her evidence was that Mr MM “never helped”. [114] She gave evidence that another boy who she thought was “Paul” had helped her with her chores. It was put to her that this was a fabrication. [115] She was then asked to listen to a telephone intercept in which speaking to a friend, the wife of an officer at Parramatta, she had said:

Having heard the statement, she agreed she had made it, “I obviously made a mistake”. [116] She maintained the position in her evidence: [117]

The evidence as to the visits to the appellant’s home to assist his wife had no direct bearing upon any aspect of the alleged offending. Rather, the evidence was relevant more generally to the relationship between the appellant and Mr MM, including the likelihood that the appellant took Mr MM and his wife and child to the property he and his wife owned in Wahroonga. On the other hand, if the Court were to conclude that the evidence given by Mr MM in respect of these visits was untrue, that would be material to an assessment of his reliability and credibility in respect of the alleged offending.

Mr MM’s evidence in this regard was largely consistent with that of the appellant, the main point of departure being the appellant’s insistence that another boy accompanied Mr MM on those occasions, which MM denied. That aspect of the appellant’s evidence was supported by his wife, both of whom remembered the first name and surname of the accompanying boy. However, the wife added the suggestion that there was a further boy called “Paul” who gave her assistance. As the prosecutor submitted at trial, Mrs Valentine’s evidence gave the impression of being tailored to assist her husband, but the addition of the evidence concerning Paul was implausible, given her earlier telephone conversation with her friend.

Mr MM’s account was supported by the description of Mrs Valentine as being frail, which was consistent with her having suffered a bout of pneumonia at the time, a matter not in dispute but which would not have been known to him when he gave his evidence (at least it was not put to him that he did know it). His description of being asked to undertake chores was also consistent with the fact that Mrs Valentine needed help as she then had two young children (one a baby) to care for. There was no doubt that Mr MM attended at the house; Mrs Valentine’s evidence that he and the other boy went there to have a chat and a cup of tea was implausible. She agreed that the boys had been introduced to her as able to provide help. Mr MM’s evidence was objectively plausible, consistent with other evidence (including statements by the appellant) and was properly accepted by the trial judge.

The asserted unreliability of Mr MM’s evidence with respect to the offending at Wahroonga relied upon a number of elements. The first was that the car in which they travelled was a “Magna, a silvery sort of gunmetal grey colour”. It was not the car which the appellant drove at work which was a “little brown Leyland Marina”. The appellant gave evidence that his wife owned a Corolla, but neither of them had a Magna.

Secondly, there was an issue as to who went on the trip. The Valentines had a young girl aged two or three at the time, and a baby. Mr MM did not recall the baby being in the car. [118] It was submitted that it was implausible that they would have left the baby at home if they had gone on such a trip.

Thirdly, while the appellant gave evidence that they owned a house in Wahroonga, he said he believed it was tenanted during 1973-1974 with a twelve-month lease, having been let unfurnished. Mr MM said that when they arrived he looked around and thought, “it doesn’t look like anyone’s been here for a long while, you know, its just like had a stale, stalely like, it didn’t look like anyone’s living there but it was furnished and that”. [119] That description, it was submitted, was inconsistent with the evidence that the premises were leased throughout 1973-1974. No records of leasing were available. There was no cross-examination as to how Mr MM knew the Valentines owned a house if he had not been there.

Fourthly, it was submitted that there was no purpose in the Valentines taking Mr MM on the trip. However, the trip took place on a Saturday when the boys were routinely required to undertake an activity known as “crow shooting”, which involved each boy having a mattock which was used to clear rough ground. [120] (Daruk was located on a 720-acre bush site. [121] ) In evidence in chief, Mr MM explained that when he lost his privileged cottage status, he would have been required to do crow shooting on a Saturday morning. [122] When asked what happened after he lost his privileged cottage he gave the following evidence: [123]

Fifthly, counsel for the appellant submitted that if the complainant’s evidence in respect of the earlier offending were not accepted, that provided a basis for disbelieving his evidence as to the final offence. As explained above, the premise of that submission should not be accepted.

None of these challenges, taken individually or together, is (or are) persuasive. That Mr MM had been invited by the appellant to undertake chores for his wife at their home near Daruk supports the view that he was favourably thought of by the appellant and by his wife. Her recorded call also supported that conclusion. The Saturday morning activity of crow shooting was not an activity favoured by the boys. It was designed to be hard physical labour to tire them out on the weekend. [124] It was by no means implausible that the Valentines would take a favoured boy on a trip on Saturday morning so he would avoid crow shooting.

The fact that the Valentines owned a property at Wahroonga, a distance consistent with the length of the trip described by Mr MM, supports the evidence that Mr MM went to a house they owned. There was no obvious explanation as to how he would have known of the house otherwise. He did not identify the suburb, but only the distance from Daruk. The detail that the place was furnished and had a stale smell as if it had been unoccupied for a while was inconsistent with the appellant’s evidence that it was leased unfurnished throughout the relevant 12 months. However, there was no objective evidence to identify the dates of any lease, nor whether the property was furnished or unfurnished during the lease.

Although Mr MM gave firm evidence as to the make of car in which they travelled, which it may be accepted was wrong, it was a detail of little significance.

Mr MM’s description of anal intercourse which caused him significant pain and led him to defecate; his difficulty in finding a hose to clean himself in the garden and his fear that he would smell bad in the car; his concern as to how he would deal with his soiled underwear on his return to Daruk, are all details which carry an air of verisimilitude. It is, of course, possible that he experienced such an event otherwise than at the hands of the appellant, but the fact that the Valentines owned a house in Wahroonga, regarded him favourably, and had a plausible reason to invite him on the trip away from Daruk on a Saturday morning, provide a firm basis not to doubt his account.

It is also necessary to take into account evidence of complaint by Mr MM.

Mr MM gave evidence of an occasion on which he was staying at his father’s house and Mr Valentine appeared and arranged to take Mr MM and his father into the city to arrange social security payments. He gave evidence that the appellant was driving and stopped at the social security building so that Mr MM’s father could get out whilst they went to park the car. When they stopped, MM said that he fled from the car. Later his father challenged him as to why he had done that and he said, “you don’t understand. He raped me”. [125] The trial judge did not accept that evidence as relevant evidence of complaint for reasons which need not be recounted. It should be disregarded for present purposes.

Mr MM was further asked: [126]

He gave evidence that while he and his sister were in Civic in Canberra she said to him, “you’re just – you’re just an angry boy”. He replied, “there’s a reason”. [127] He said that he told her:

In 2015 or 2016, Mr MM gave evidence that he was in a relationship with Ms WS. He described being in the house with Ms WS and the kids watching television: [128]

Mr MM’s sister gave evidence that he had spoken to her in Civic in Canberra, she thought in 1996 or 1997, on an occasion when he was having a computer repaired. She said Mr MM had named the appellant and told her he was “raped”, referring to “anal penetration”. [129] In cross-examination, Mr MM’s sister was not sure that he had told her that the rape occurred in Daruk at that time, but thought it may have been then or may have been later. [130] There was no challenge to her recollection that Mr MM had named the appellant.

Ms WS also gave evidence, referring to the occasion on which they had been watching television and Mr MM had broken down crying and said, “I thought the bastard was dead”. [131] She stated: [132]

Mr MM described his discharge from Daruk, stating that the appellant, his wife and child had driven him in the Marina to the southern suburbs of Sydney where they said they had friends. The appellant had then taken Mr MM in the car to Matraville where his father lived. He said when the appellant stopped the car he jumped out and ran up the side of the house and over the back fence to a mate’s place where he hid under the house until he believed the appellant had gone. [133]

Mr MM then recounted the occasion (referred to above), which he said occurred “a couple of days later”, when the appellant re-appeared at his father’s house and offered to take them into the city to deal with social security. [134] Mr MM described a further event about a week after the last event when he was at home alone. A car drew up and there was a knock at the door. He recognised the Leyland Marina which the appellant drove and hid in the house until the appellant drove off. When he later went out of the front door, he said there was an “orange tree sitting there in a pot”, with a card addressed to him saying “Hope you grow like this tree, and just both flourish”. The card was signed “from Frank”.

In cross-examination, Mr MM was shown a photograph which it was suggested was taken by Mrs Valentine the day that he was discharged from Daruk. The photo was relied upon by the defence as demonstrating that Mr MM was held in warm regard by the Valentines, or at least by Mrs Valentine.

The defence did not challenge his evidence of complaints, nor the account of the appellant visiting Mr MM at his father’s home and leaving an orange tree with a card. However, it was put to the witness that he was not in fact driven to his father’s home by the appellant and his wife on discharge from Daruk, a proposition he rejected.

Upon reading the transcript of the evidence relating to the counts involving Mr MM, I do not entertain a reasonable doubt as to the convictions. As indicated above, I do have a doubt as to whether Mr MM correctly identified the occasion on which he first met Mr Valentine as the time of his admission to Daruk. However, that doubt does not infect his accounts of any of the subsequent events. It was not an occasion which would have had special emotional or other significance for Mr MM.

I accept that if the trial judge, having heard Mr MM’s evidence, entertained a reasonable doubt in respect of any of the alleged offending, that impression would outweigh any views formed on reading the transcript. However, the trial judge took the opposite view, finding that Mr MM was “an impressive, reliable and thoughtful witness doing his best to recount his evidence. His distress was palpable.” [135] There is nothing in the transcript or the relevant exhibits which casts any doubt on that judgment. Accordingly, the challenge to the convictions on counts 35-39 as unreasonable must be rejected.

It remains to consider the grounds relating to unreasonable verdicts with respect to each of the complainants, other than Ms DD (based on inconsistent verdicts), Ms EE and Mr MM. However, before addressing grounds 5 (Ms AA), 8 (Ms BB), and 10 (Ms CC) it is convenient to address the generic grounds identified earlier, being grounds 19, 20 and 21. It is also convenient to explain how the trial judge dealt with the tendency evidence and, in particular, the cross-admissibility of evidence with respect to the charged offences.

Ground 19 alleged that the trial judge erred in “elevating subjective demeanour-based findings at the expense of the intrinsic merit or demerit in the evidence”. Ground 20 asserted that the judge failed “to apply the forensic prejudice which the applicant faced in concluding that the complainants appeared to be truthful and reliable”. In relation to ground 20, it should be noted that the complaint was not that the judge, in giving herself the appropriate directions did not direct herself correctly, but rather failed to apply the direction.

The thrust of these grounds was twofold. The first limb was that the judge failed to have regard to the difficulties in discerning truth from demeanour. In written submissions, counsel referred to the statement of Deane and Dawson JJ in Devries v Australian National Railways Commission, [136] to the effect that “the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain”.

That proposition may be accepted and the limitations on judicial confidence in making credibility findings based on demeanour are accepted. But importantly, the joint judgment in Devries continued:

Further, the caution was based on the distinction to be drawn between conclusions “based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence”. It is by no means clear that the trial judge made findings based on her observations of the witnesses, as distinct from a consideration of the content of their evidence. In most cases, a reading of the transcript demonstrates that the evidence (content) was entirely plausible. In cases where it was not, the trial judge addressed the weaknesses in the content.

It was the second limb of the grounds which carried more weight, although it was not expressly identified in these terms. Most of the complainants were challenged as to how they came to be giving evidence against the appellant. The criminal proceedings were preceded by extensive publicity concerning the abuse of young persons in institutions. Although the Court was not taken to the history in chronological detail, many complainants were cross-examined as to the circumstances in which they gave statements to the police. Most had made claims under a State government compensation scheme and had been in touch with a lawyer, Peter Kelso, or persons in his legal practice. Most were aware of, and some had made statements to, the Royal Commission into Institutional Responses to Child Sexual Abuse. The appellant’s image had been on television.

Complainants were questioned as to whether they had heard other complainants naming the appellant as an aggressor before they identified him as the person who had assaulted them, often in statements prepared some years before they gave evidence in the trial. For most, there was a period of involvement with authorities extending over some four years before the applicant’s trial. Even over that period, it was clear that recollections had faded in some cases. However, where there had been frequent recall in recent years of events which occurred some three decades or more earlier, there was a significant risk that the memories of those events had been reconstructed over time. Belief in a reconstructed memory may be hard to shake and the account of the event may have a greater appearance of reliability than is warranted.

On the other hand, the content of some of the accounts was itself persuasive as relating to events that a teenage girl or boy would not readily forget, although it was clear that some had tried to forget.

The difficulty with grounds 19 and 20 is twofold. First, in so far as they seek to identify generic errors in the reasoning of the trial judge, they must fail because where relevant, the judge gave careful attention to the delay in complaining, the circumstance in which first complaints were made, as well as the content of the witnesses’ evidence. The witnesses were not uniformly assessed in those terms, but that was because the challenges in cross-examination and submissions for the defence varied.

The second difficulty is that, in so far as this Court is required to assess whether the verdicts were unsupported by the evidence and therefore unreasonable, demeanour is not a factor which can be taken into account, given that the Court neither heard the witnesses nor gives undue weight to findings made by the trial judge, at least in forming its own opinion in the first stage of the potentially two-step inquiry.

In these circumstances, grounds 19 and 20 lack substance and must be rejected.

Ground 21 alleged that the judge erred in the “global rejection” of the entirety of the appellant’s evidence. To the extent that the ground implied that the judge did not deal on a case-by-case basis with the appellant’s evidence, the implication was without substance. It is true that the appellant denied all wrongdoing: however, the appellant was cross-examined with respect to each of the individual events, the subject of complaint and charge. Further, the implication that no denial was accepted, even to the extent of raising a reasonable doubt, failed to recognise that the judge entered verdicts of not guilty in relation to seven counts involving complainant Ms DD and in relation to the only count involving a seventh complainant, whose case it has not been necessary to address.

As a global complaint, the ground failed to give a fair account of the consideration given to the appellant’s evidence by the trial judge in lengthy reasons at [325]-[373] (in relation to Parramatta) and [374]-[384] (in relation to Daruk). The judge then stated:

Before making specific findings in relation to the separate counts, the judge stated:

The judge then noted that she did not accept some aspects of his evidence stating: [137]

Overall, the judge described the appellant as “an unimpressive and unreliable witness” and noted his “lack of reliability on key issues”. [138] The judge then turned in her reasons to consideration of the evidence of the complainants, accepting some, but, as noted, rejecting others.

Ground 21 does not identify appealable error on the part of the trial judge and must be rejected.

Before leaving grounds 19 and 21, it is necessary to observe that both referred to errors in respect of “each of the separate trials”. As has been observed, there was a single trial, in which evidence on one count was admitted as evidence on each of the others, pursuant to a ruling on tendency evidence. What was apparently meant by the phrase in the formulation of the grounds was that the judge was required to address, as she in fact did, each of the counts in the indictment separately, in order to determine whether or not she was satisfied that the prosecution had established beyond reasonable doubt that the offending took place. However, it is desirable to note the manner in which the judge dealt with the tendency evidence.

This being a judge alone trial, the ruling on the admissibility of tendency evidence which was, substantially, limited to the cross-admissibility of evidence on one count in relation to other counts, was delayed until the end of the evidence. The trial judge delivered a separate judgment with respect to that issue on 2 April 2019. As the judge noted, the tendency notice served by the prosecution did not identify an intention to rely on tendency evidence to prove identity of the offender. The judge identified the relevant tendency in the following term: [139]

The judge concluded: [140]

It is not necessary to explore the underlying basis of this ruling because there was no challenge to it. The absence of challenge may have been due to the fact that the force of the ruling was accepted, or because the trial judge, in making findings in respect of individual counts, eschewed reliance on tendency evidence.

The absence of reliance on tendency evidence may have been overstated. There must have been a sense in which the allegations of rape and sexual and indecent assault against a senior officer in charge of a girl’s training school where, in the language of the day, girls were sent who were “exposed to moral danger”, must, if viewed individually, have been at risk of being dismissed as inherently improbable. Indeed, the complainants themselves gave evidence that they did not complain of the assaults because they did not think they would be believed. It is therefore unlikely that the multiplicity of complainants and offences, evidence of each being cross-admissible on the other counts, was entirely disregarded.

However, the present question is whether that evidence can be considered by this Court in forming a view as to whether the verdicts were unreasonable and unsupportable on the evidence. Had the verdicts been given by a jury, this Court would have been entitled to have regard to all the properly admitted evidence in determining that issue. In accordance with the reasoning of the High Court in cases such as Dansie, discussed above, the Court does not, in making its own assessment of the evidence, rely upon or give weight to findings made by the trial judge. If the Court is not entitled to place weight on the reasoning of the trial judge in making that assessment, in my view it must be entitled to give such weight to the admitted evidence as it thinks appropriate. For reasons explained below, however, it is sufficient to treat the tendency evidence as a basis for rejecting the natural tendency to dismiss the complaints as inherently implausible. Beyond that, the assessment of unreasonableness will be undertaken having regard to the evidence of the specific complainants and the accused and other witnesses, relevant to the specific complaints.

Although it has no bearing on the outcome of the case approached on that basis, it is appropriate to note that the trial judge gave herself directions as to the use of tendency evidence in her final judgment, which were unduly favourable to the accused.

The prosecution’s reliance on tendency evidence was summarised in the following terms:

The judge then directed herself in the following terms:

It may be noted that, in delivering her judgment on admissibility, the judge had accepted that the evidence established the relevant tendencies and had significant probative value. In Hughes v The Queen, approving a statement from the judgment of this Court in R v Ford [141] that “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”, the joint reasons in the High Court stated: [142]

Further, in the conclusions in Hughes, the joint reasons stated:

It is not necessary that any particular piece of evidence be established beyond reasonable doubt unless it is a necessary link in a factual chain. Where the occurrence of an event in question is determined by reference to a combination of evidential materials, it is the cumulative effect of all of the evidence (including any relevant denial by the accused) which must support a conclusion beyond reasonable doubt as to that element of the offence. In this sense, the direction referred to above was too restrictive and unduly favourable to the accused.

The material relating to Ms AA has already been addressed. The accounts that Ms AA gave of the appellant touching her indecently whilst she was sitting on a bench drinking milk, was subject to challenge primarily on the basis that, although Ms AA had given several accounts of her time in Parramatta, including to the Royal Commission, she had not identified her assailant as the appellant by name until contacted by a detective who had asked whether she would provide a statement in respect of the assaults, naming the appellant. In this Court it was submitted that, whether or not any such events occurred, their attribution to the appellant was a recent invention and was concocted.

Although no question was put in those terms in cross-examination, Ms AA was cross-examined in detail as to the opportunities she had had to complain and to name the appellant as her assailant, but had not done so. It was also put to her in conclusion that Mr Valentine never touched her. [143]

The evidence that Ms AA knew the appellant by name was persuasive. She said that over the three months during which she was at Parramatta she was required to say goodnight to the officers as they walked past, addressing them by name. [144] She explained in cross-examination the circumstances and the reasons why she might have, but did not in fact, complain earlier by naming the appellant. It is possible that a judge hearing the evidence might have found it unpersuasive, but reading the transcript, the answers given were not such as to raise a doubt as to reliability or honesty.

Further, the conduct complained of had been the subject of an early complaint to her sister. Again, the appellant was not named, but no doubt the name would have been insignificant in the context.

In his denial of the conduct, the appellant submitted that the roster system did not require him to work three mornings in a row. In my view, that was a detail which was of very little significance. It is quite possible that the offending took place, but over a period of more than three days; the evidence of rostering was incomplete and not supported by documentary evidence, nor even the reconstructed roster of which the appellant gave evidence, and there was evidence that the rosters were not always followed.

I do not entertain a reasonable doubt in relation to the offending, the subject of complaint by Ms AA. The unreasonable verdict grounds in respect of the convictions on counts 1, 2 and 3 should be rejected.

Ms BB was challenged both as to the occurrence of the alleged assaults and the possibility that it was in fact Mr Gilford who assaulted her and not the appellant.

Aspects of Ms BB ’s evidence were the subject of concerted challenge in cross-examination. The challenges included suggestions that in various respects her description of the buildings and the layout of the rooms at Parramatta were inaccurate. That may have been so to an extent, but there was no doubt that Ms BB had spent extended time at Parramatta and that the appellant was working there during those periods.

There were suggestions that she did not recall the appellant’s accent, and that her description of Mr Gilford was inaccurate. She was unable to be sure as to the dates on which certain events took place, as between the first and second periods she spent at Parramatta. Counsel described her evidence as “entirely unreliable” but, as noted above, that does not appear from a reading of the transcript. The assaults which she described were cruel and entirely memorable. In cross-examination it was put to Ms BB that she had told police in 2014 that she “lived with the memory of what Mr Valentine did to [her], everyday”: she replied “yes”. [145] She agreed that other superintendents, including Mr Gilford (but not Mr Monaghan), had assaulted her violently. [146]

The circumstances were not such as to render the identity of her assailant uncertain. Taken in isolation, the level of physical violence and the sexual abuse may well have seemed implausible. However, the evidence that the appellant on multiple occasions engaged in physical violence and sexual assaults on inmates of the institutions at which he worked removes that potential source of doubt.

Having read the whole of Ms BB ’s evidence at trial, and the appellant’s denials, I do not entertain a reasonable doubt as to the truth of her complaints. Accordingly, I would reject ground 8(b) challenging each of counts 4, 5, 6 and 7 as unreasonable.

The specific complaint of error in relation to Ms CC related to her identification of the appellant as the perpetrator of various assaults upon her. That complaint has been dealt with above and rejected. Ms CC was 15 years of age when admitted to Parramatta and was detained there for some six months. Ms CC had not been involved with the Royal Commission and denied knowledge of the evidence given at it. She did, however, contact the solicitor, Peter Kelso, to pursue compensation. She denied that Mr Kelso had told her that Mr Valentine was a person of interest and said that she told him that. [147] She distinguished the appellant and Mr Gilford reasonably accurately, stating that Mr Gilford did not have a beard but the appellant did, and that the appellant was short and Mr Gilford was tall. [148] She denied that she had confused Mr Gilford and the appellant, stating that Mr Gilford “never sexually abused me”. [149]

As with other complainants, the cross-examination raised the possibility of suggestion and collaboration. In submissions, counsel did rely upon the availability of compensation from the government as a reason why the complainants may have nominated the appellant or concocted evidence as to his offences. However, that reasoning depended upon the complainant having identified the appellant as her assailant, in submissions seeking compensation. In most cases, complainants were cross-examined as to why they had not named the appellant on earlier occasions when the opportunity arose. That challenge to the reliability of their evidence was inconsistent with the proposition that they named the appellant in their police statements for the purposes of obtaining compensation.

Beyond the submissions as to unreliability of the complainant’s evidence and an assertion that there was “no basis to reject the appellant’s exculpatory account of himself”, the submissions in relation to this ground went no further than the challenge to the identification of the appellant as the perpetrator of the offences.

Having read Ms CC’s evidence, the appellant’s denial and taking into account the complainant’s uncertainty as to the precise location of the sick bay in which particular offending occurred, I see no reason to entertain a reasonable doubt as to the allegations made by the complainant. Again, the trial judge might have formed a view as to the complainant’s unreliability or untruthfulness based on demeanour, but no such doubts arise from the transcript. In fact, the judge did not form such a view. Accordingly, ground 10 must be rejected.

For the reasons set out above, the appeal with respect to the conviction for indecent assault (count 24) with respect to complainant Ms EE should be upheld and the conviction quashed.

The other grounds having been rejected with respect to each of the other convictions, the appellant should have leave to appeal but the appeal should otherwise be dismissed. There should be a verdict of acquittal with respect to count 24.

It follows that the aggregate sentence was imposed on a legally incorrect basis in that the indicative sentences included a putative sentence of one year, nine months imprisonment with respect to count 24. The question for this Court is whether the removal of that conviction should lead to a variation of the aggregate sentence of 22 years’ imprisonment with a non-parole period of 13 years. On one view, the change in the basis on which the aggregate sentence was imposed may be thought to be insignificant in the overall context of the offending. Thus, the number of convictions is reduced from 21 to 20 and the total of the aggregation of the indicative sentences is reduced from some 75 years by less than two years. A proportionate reduction of the non-parole period for the aggregate sentence would be three months; the full sentence might be reduced by five months. On another view, the change would not warrant any lesser sentence, given the magnitude and severity of the other offending.

The parties should have an opportunity to address the Court with respect to this issue. In the first instance, the parties should have an opportunity to file brief written submissions; if there is a difference of views, a party wishing to be heard orally should give an indication to that effect in the written submissions. If a common position is reached, the Court should be so advised.

I propose the following orders:

BUTTON J: I have had the advantage of reading the judgment of Basten AJA in draft. I agree with the orders proposed and with the reasons of his Honour, subject to what follows.

Of significance to my own assessment of the asserted unreasonableness of the verdicts of guilty is the tendency evidence. At the hearing of the appeal, counsel for the appellant conceded that we are entitled to make use of it as we see fit, whatever was the approach of the trial judge. Even taking a cautious approach to the tendency evidence (in light of the submissions of the appellant about possible mis-identification and contamination), the fact that six adult complainants asserted on oath that it was the appellant who sexually assaulted them many years ago when they were all teenagers in his care is of substantial importance to my assessment of whether I experience a reasonable doubt about any of the convictions. In that sense, it could be that I adopt a less restrictive approach to the tendency evidence than that adopted by his Honour at [223] and following.

I have also had the benefit of reading the judgment of Wilson J in draft, regarding the divergent approach of her Honour to count 24. Although the matter is finally balanced in my mind, ultimately, bearing in mind the stringency of the criminal onus and standard of proof that one must apply when undertaking this exercise in an intermediate appellate court, I agree with Basten AJA that the conviction on count 24 should be quashed.”

WILSON J: I have had the advantage of reading the judgment of Basten AJA in draft, and gratefully refer to his Honour’s discussion of the evidence at trial, and his discussion and proposed disposition of the grounds advanced to this Court. With one exception, I agree with his Honour’s reasons and conclusions. The exception is as to the appeal against conviction with respect to count 24 of the indictment presented against the appellant, raised by ground 14. Basten AJA would uphold the appeal with respect to that count, quash the conviction, and invite submissions on re-sentence. For the reasons that follow, I would dismiss the appeal against conviction for count 24, as I would dismiss the balance of the appeal.

The principles to be applied in determining a ground complaining that a verdict returned by a trial judge is unreasonable were considered recently in GS v R [2022] NSWCCA 225, wherein Beech-Jones CJ at CL said, at [50] – [53]:

There is, as the submissions made by the applicant assert, and Basten AJA’s discussion at [138] – [148] makes clear, a discrepancy or inadequacy in the evidence of Ms EE concerning count 24. Basten AJA is of the view that the discrepancy is such that the tribunal of fact, in this instance the trial judge, should have entertained a reasonable doubt about Ms EE’s evidence and returned a verdict of not guilty. His Honour considers that the tendency evidence relied upon by the Crown could not have changed that outcome.

The complaint made by Ms EE, who was 15 or 16 at the relevant time, relates to an indecent assault contrary to the now repealed s 76 of the Crimes Act 1900 (NSW). It reflects Ms EE’s allegation that, at a time when she was in the shower area at Parramatta about to dress, prior to transfer to the Royal Prince Alfred Hospital for a post-surgical examination, the appellant approached her from behind and inserted his finger into her vagina [150] . In her evidence Ms EE said that she had been taken to the hospital for a procedure and, following that, she returned for a check-up about 4 weeks afterwards. She thought there was another visit from what she had been told by others but had no memory of it.

Ms EE deposed that it was the appellant who called her to go into the shower and, although she did not realise it at the time, he followed her as she made her way to the showers. Ms EE was the only girl using the facility at the time. She showered and then:

Ms EE continued:

She said that the appellant was often in the shower area.

Although Ms EE had not had the information when making her statement to police, hospital records established that she was admitted to hospital for a surgical procedure on 6 April 1972, being discharged the following day. There were three post-operative examinations, on 9 May 1972, 23 May 1972, and 29 June 1972. By reference to her recollection that the assault occurred immediately before the check-up held 4 weeks after the procedure was carried out, it must have been 9 May 1972 when the assault she described took place.

In cross-examination it was put to Ms EE that the appellant was not at Parramatta on that day:

Consistent with the cross-examiner’s question, other evidence established that the appellant had been granted leave between the dates nominated by counsel in cross-examination.

That evidence is certainly enough to raise a concern as to the accuracy of Ms EE’s recollection and prompt the tribunal of fact to examine her and any other evidence relevant to count 24 very carefully.

Some of that evidence was given by the appellant. He denied an assault as described by Ms EE, as he denied all allegations against him. He also vehemently denied that he had ever attended the shower area at Parramatta. Contrary to his testimony on that point there was evidence from a number of witnesses other than Ms EE as to the appellant’s attendance in the shower area, and the trial judge, having seen the witnesses testify before her, rejected the appellant’s assertions in that regard. She was satisfied that he had visited and been in the shower area from time to time.

The appellant accepted in his evidence that he had a key to Parramatta and could come and go as desired. He also said that there were occasions when he had attended the institution when not rostered or otherwise due to do so. He conceded that he was called in from time to time by junior officers, even though he was not on duty. That the appellant attended Parramatta when he was not required to be there by roster is a proposition supported by Ex AL, a performance assessment from the relevant period that said of the appellant:

The appellant said that the assessment recorded in Ex AL was not accurate, but her Honour accepted the veracity of the contemporaneous written note over the appellant’s denial.

The appellant also said that part of his role was to perform medical escorts for girls attending medical appointments, although he said he would not usually go to city hospitals such as the Royal Prince Alfred Hospital, as it took up too much time.

The trial judge concluded that the fact that the appellant was on leave was not determinative of count 24, “given the evidence of his attendance at Parramatta” when not required to be there. She continued:

On that analysis, her Honour’s assessment of the complainant was a significant feature, and one where the trial judge has the advantage over this Court. Bearing in mind her Honour’s better opportunity to assess Ms EE’s reliability, and having regard to all relevant evidence, I agree with her Honour’s assessment and do not experience a reasonable doubt. Particularly when regard is had to the tendency evidence relied upon by the Crown, but not considered by the trial judge, it could not be said that it is unlikely that this assault occurred as and when Ms EE deposed that it did.

I would dismiss ground 14.

Basten AJA considered some matters relevant to grounds 11, 12 and 13 when discussing ground 14 but, having regard to his conclusion as to that ground, his Honour did not formally determine them. I have concluded that these grounds should be dismissed. Since I am the minority with respect to ground 14, it is unnecessary to set out my reasoning with respect to the balance of the grounds relevant to Ms EE.

Given my differing view as to the disposition of ground 14, I would propose orders as follows: