Curran v R - [2020] NSWCCA 171

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Curran v R [2020] NSWCCA 171
Hearing dates: 11 June 2020
Date of orders: 18 June 2020
Decision date: 20 July 2020
Before: Basten JA at [1];
R A Hulme J at [130];
Hamill J at [137]
Decision:
(1)   Grant leave to appeal against conviction.
(2)   Allow the appeal against conviction in part.
(3)   Quash the convictions on Counts 3 and 4 of the indictment and quash the aggregate sentence imposed.
(4)   Enter verdicts of acquittal in respect of Counts 3 and 4.
(5)   Appeal otherwise dismissed.
(6)   In respect of Counts 1, 5, 6 and 7, sentence Graeme Bryan Curran to an aggregate term of imprisonment of 16 months with a non-parole period of 9 months. The sentence is to date from 23 August 2019. The non-parole period expired on 22 May 2020 and the total term will expire on 22 December 2020. Accordingly, the offender is now entitled to release pursuant to a statutory parole order.

Catchwords:
CRIME – appeals – appeal against conviction – sexual assault offences – applicant convicted of seven of nine counts of indecent assault on a male – whether jury verdict was unreasonable or unsupportable having regard to the acquittals – convictions quashed on two counts – open to the jury to be satisfied of the applicant’s guilt in relation to the other five counts
CRIMINAL PROCEDURE – trial – conduct of prosecutor – two inappropriate statements in closing address – suggestion that the accused had a “motive to lie” – suggestion that the accused had a general tendency not supported by the evidence – whether miscarriage of justice
EVIDENCE – reliability – whether complainant’s evidence capable of sustaining convictions of two counts of indecent assault – details of assaults given many years later after several statements to police – express denial of facts charged – effects of hypnosis – memories suppressed – whether evidence unreliable – whether jury could rationally assess reliability

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MAJW v Regina [2009] NSWCCA 255
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
Pell v The Queen [2020] HCA 12; 94 ALJR 394
Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties: Graeme Bryan Curran (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Boulten SC / Ms G Lewer (Applicant)
Ms M England / Ms E Curran (Respondent)
Solicitors:
Carroll & O’Dea Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/328847
Publication restriction:
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), there shall be no publication of any information that would reveal or tend to reveal the identity of the complainant, including the names of family members of the complainant, and the complainant’s address details.
Pursuant to s 7 of the Act, there shall be no publication of the contact details of the applicant including his address, telephone number or email address.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 August 2019

Before:

Rafter SC ADCJ

File Number(s):

2017/328847

Judgment

BASTEN JA: In March 2019 the applicant, Graeme Bryan Curran, was put on trial in the District Court on an indictment containing nine counts of indecent assault on a male. The charges alleged conduct between 1 February 1981 and 31 December 1983. The applicant was convicted on seven counts and acquitted on two counts. He was sentenced to imprisonment for 2 years 4 months to date from 23 August 2019, with a non-parole period of 16 months expiring on 22 December 2020.
On 1 April 2020 an application for leave to appeal against conviction was filed in the Court Registry. The grounds of appeal were as follows:

(1) The Crown Prosecutor’s conduct in his address gave rise to a miscarriage of justice.
(2) The verdicts were unreasonable and cannot be supported having regard to the evidence.

The appeal was heard on Thursday, 11 June 2020. The primary argument presented for the applicant was that this Court would not be satisfied that the verdicts on counts 3 and 4 were supportable. If those verdicts were set aside, the jury having rejected the complainant in respect of two other counts, it followed that there must be a reasonable doubt attending all of the verdicts which, accordingly, should be set aside.
That conclusion was sought to be supported by further arguments with respect to weaknesses in the evidence with respect to counts 1, 2, 5, 6 and 7. The separate ground concerning the address of the Crown prosecutor would, if accepted, have provided a separate basis for setting aside all of the convictions, as the impugned statements to the jury were said to have infected the whole of the trial.
The Court accepted the applicant’s submissions with respect to counts 3 and 4, namely that the jury should have entertained a reasonable doubt as to the prosecution case with respect to those counts. The Court did not, however, accept the consequential effect on counts 1, 2, 5, 6 and 7. It concluded that the basis on which the jury rejected counts 8 and 9 and the basis on which the Court entertained a reasonable doubt with respect to counts 3 and 4 did not lead to the conclusion that the other convictions were not reasonably open to the jury. Further, considered on their own facts, there was credible and apparently reliable evidence to support each of those convictions. The Court was not satisfied that the impugned statements by the Crown prosecutor gave rise to a miscarriage of justice.
These conclusions required that the Court resentence the applicant with respect to the remaining counts. In the course of sentencing the applicant, the trial judge, Acting Judge Rafter SC, had indicated the sentences which would have been imposed had he been sentenced on the counts individually. Counts 1 and 4 each attracted an indicative sentence of 6 months, while counts 5, 6 and 7 each attracted a sentence of 9 months imprisonment. The most serious of the nine counts was count 3, for which the judge indicated a sentence of 2 years imprisonment would have been imposed. (No separate penalty was imposed for count 2.) Having regard to the relationship between the indicative sentences on counts 3 and 4 and the total of the indicative sentences it was clear that, on resentencing, the applicant would be entitled to immediate release from custody. Accordingly, on 18 June 2020 the Court made orders in the following terms:

Grant leave to appeal against conviction.

Allow the appeal against conviction in part.

Quash the convictions on Counts 3 and 4 of the indictment and quash the aggregate sentence imposed.

Enter verdicts of acquittal in respect of Counts 3 and 4.

Appeal otherwise dismissed.

In respect of Counts 1, 5, 6 and 7, sentence Graeme Bryan Curran to an aggregate term of imprisonment of 16 months with a non-parole period of 9 months. The sentence is to date from 23 August 2019. The non-parole period expired on 22 May 2020 and the total term will expire on 22 December 2020. Accordingly, the offender is now entitled to release pursuant to a statutory parole order.

The conclusions identified above and the orders made on 18 June 2020 are supported by the following reasons. There is a non-publication order in force with respect to the complainant’s identity. These reasons seek to avoid naming parties where to do so might disclose the identity of the complainant.

Factual background

The offending occurred when the applicant was in his early thirties and the complainant was a schoolboy aged between 13 and 16 years. The complainant was the oldest of three siblings. The complainant’s father was a school teacher who died at a young age, when the complainant was four. In 1974 the complainant’s mother remarried. Her second husband, who became the complainant’s stepfather, was an English teacher from her deceased husband’s school. At the time of her remarriage, the complainant’s family was living at Telopea. In 1974 they moved to Coogee and in October 1982 to Woolooware. The complainant’s mother had three further children by the stepfather.
The applicant had been taught by the complainant’s father and also by his stepfather. After leaving school, the applicant became a close friend of the complainant’s family. Prior to 1974, the applicant kept in touch with his former English teacher and with the complainant’s mother. He was a guest at their wedding. He said that at that stage he did not know the children well. [1] Thereafter, the applicant’s relationship with the family appears to have blossomed. The applicant said that he would go on family outings with them, a practice which became “more frequent when they moved to Coogee.” [2] At that stage the applicant was living in Chippendale. He later moved to a house in Paddington with his brother. By that stage he described himself “as a regular visitor” to the complainant’s home. In November 1980 the applicant and his brother purchased a house in Balmain.
1. Tcpt, p 646.
2. Tcpt, p 646(50).
Whilst a student at Sydney University, the applicant was involved with “the Settlement”, a body established by students to provide assistance to underprivileged inner city children. He joined an organisation called The Sydney University Settlement Undergraduate Society. [3] The complainant and his brother participated in activities of the Settlement, including bushwalking. [4]
3. Tcpt, p 649(35).
4. Tcpt, p 652.
Both the applicant and the complainant saw their relationship as similar to that of father and son, or perhaps uncle and nephew. There is no doubt that it was a relationship of trust and one in which the applicant took the complainant on recreational outings and gave him gifts. He took the complainant on several trips to Europe, the first in December 1980 when the complainant was 13 years old. On Saturdays, he took the complainant and his brother sailing on a yacht owned by a friend. A pattern developed of the complainant sleeping at the applicant’s house and sharing a bed with the applicant. There were numerous occasions when the complainant stayed overnight at the Balmain house before sailing. The complainant said they slept naked and a ritual developed of the applicant massaging the complainant’s naked body in the morning.
Count 1 related to an occasion when the complainant was between 13 and 15 years of age and the applicant undertook the morning “massage ritual” on his bed. The event was identified because the massage was interrupted by a builder unexpectedly arriving at the door.
Count 2 involved an occasion when the complainant was between 13 and 14 years and had spent the night at the applicant’s house after going to a Catholic Club dance the night before. The applicant noticed a love bite or hickey on the complainant’s neck and questioned him about his sexual activities the night before. The applicant became sexually aroused and started to cuddle the complainant and kiss him with partly open wet lips.
Count 3 involved events said to have occurred on a sailing trip when the applicant borrowed his friend’s yacht and sailed with the complainant from Middle Harbour to Pittwater and then to Cottage Point on Cowan Creek. The complainant said they had dinner on the boat; after dinner the applicant cuddled the complainant who was sitting on his lap, touching him and telling him he loved him. The applicant then asked the complainant to stand up facing him, pulled down the complainant’s pants and took the complainant’s penis in his mouth. The complainant described being extremely distressed by the incident.
Following the instance of fellatio, the applicant had sought to console the complainant and kissed him in a non-sexual way, told him that it was “Okay” and told him not to cry. The complainant tried to get away but the applicant held him down on the bench of the yacht, whilst cuddling him. This constituted count 4 on the indictment.
The applicant had promised to contact the complainant’s mother when they arrived at Pittwater and had not been able to do so. As a result, a police search had been instituted and the next day a police launch approached the yacht and asked through a loud hailer for Graeme Curran. There is no doubt that incident occurred; the applicant’s response to it formed an important element in the prosecution case with respect to the events of the day.
Later that day the complainant said the yacht anchored near a sandbank across the mouth of a small bay. The complainant and the applicant had dived off the boat naked, because the applicant insisted that “they had to be naked”, and it was about “being uninhibited”. In the evening they moored the boat and used a dinghy to carry dinner supplies to the beach. The applicant requested the complainant to remain naked for the entire evening. They built a bonfire and sat side by side facing the water. The applicant told the complainant to spread his legs apart and had done so himself. Using his left hand the applicant began masturbating the complainant, shaking the complainant’s penis. That conduct constituted count 5. The applicant also took the complainant’s hand and placed it on the applicant’s erect penis. That conduct constituted count 6. The complainant said he did not get an erection. Rather, he attempted to get away and was scared the applicant was going to have sex with him.
The complainant sought to make a joke of the incident and crawled around the fire on his hands and knees pretending to be a dog. The applicant joined in the “game”, tackled the complainant to the ground and began humping and rubbing his erect penis against the complainant’s upper thigh. That conduct constituted count 7. The applicant was on top of him and groping his arms and legs in the sand, until the complainant began crying. The applicant became annoyed and they returned to the boat.
Count 8 occurred when the complainant was about 13 years old. The applicant paid for him to have his teeth capped. According to the complainant’s account, prior to the third and final visit to the dentist, who was a friend of the applicant, the dentist agreed to allow the applicant to have “happy gas”. At the end of the procedure on the complainant, the dentist got the applicant to lie in the dental chair and administered the gas to him. Once the dentist left the room, the complainant said that the applicant took his hand and got him to stand by the dental chair, took the mask off his face and grabbed the complainant around the neck and pulled him down to kiss him. The complainant said that the applicant had held the complainant’s head to his own and kissed him passionately using his tongue. That conduct constituted count 8, of which the applicant was acquitted.
The final charge, count 9, arose from the applicant’s conduct during a trip on which the applicant took the complainant and his younger brother to the Snowy Mountains. They had stopped overnight at a motel in Bega. The following morning, the applicant had sent the complainant’s brother downstairs to reserve a table for breakfast. The applicant then came out of the bathroom after a shower with a towel around his waist, removed the towel and sat on the end of the bed and asked the complainant to sit on his knee. He then put his hands up the complainant’s shirt and fondled his nipples. The incident led the complainant to begin crying and tell the applicant he had to stop doing that to him, whereupon the applicant had also started crying and had replied “I know, I am so sorry. I won’t do it again.” The applicant was acquitted of count 9.
The complainant recalled that following the same trip, after four days of bushwalking, they had returned to Sydney via Gerroa, where the applicant’s brother was then working. He recalled details of the dinner in Berry where he had started crying uncontrollably and had left the restaurant and sat in the gutter with his head between his knees. He said that the applicant’s brother had come outside to try to console him. He said he did not go back inside the restaurant that evening.

Ground 2 – unreasonable verdicts

For reasons explained below, ground 1 (improper statements by prosecutor in addressing jury) must be rejected. The background to the closing addresses is, however, more conveniently considered in addressing ground 2, challenging the reasonableness of the verdicts. Ground 2 will therefore be addressed first.

(a) legal principles

Ground 2 invoked the first limb of challenge to a conviction set out in s 6(1) of the Criminal Appeal Act 1912 (NSW), namely that the verdict of the jury should be set aside if the court is of opinion that the verdict “is unreasonable or cannot be supported, having regard to the evidence”. The jury is the body responsible for making all findings of fact in a criminal trial and determining whether the prosecution has established the guilt of the accused at the high level of confidence required for a criminal conviction. Where, as in this case, the jury has been clearly and competently directed as to their task and the relevant legal principles to be applied, there will often be little basis for this Court to intervene. The jury is neither required nor permitted to give reasons for its verdicts. It is their function to assess the credibility and reliability of the witnesses and to consider any documentary material presented in evidence. This Court has neither heard nor seen the witnesses give their evidence.
Nevertheless, there are cases in which an appeal court may be persuaded that a miscarriage of justice has occurred in relation to a particular conviction or convictions. As explained in M v The Queen,[5] “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.” [6] It is necessary for the Court to consider whether the jury’s advantage “in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal”. The reasoning of the High Court in M v The Queen continued:

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
5. (1994) 181 CLR 487; [1994] HCA 63.
6. M at 494.

The High Court has recently confirmed the correctness of that approach. [7]
7. Pell v The Queen [2020] HCA 12; 94 ALJR 394 at [39], [43]-[45].

(b) counts 3 and 4

Count 3 involved an act of fellatio and was, in accordance with the indicative sentences for individual counts, understandably treated by the trial judge as significantly more serious than the other offending conduct.
There is no doubt that the boat trip to Pittwater and Cowan Creek occurred. Chronologically it was said to have followed a trip made by the applicant to Europe, on which he took the complainant. (The complainant was clear that no assaults took place in the course of the overseas trips.) It was common ground that they returned from the first trip towards the end of the school holidays in January 1981. The second trip to Europe was from December 1982 until 30 January 1983. The complainant gave evidence that the boat trip occurred in the Easter school holidays, either in 1982 or 1983. The evidence of his mother and stepfather and of the applicant suggested that the trip occurred in 1982, possibly in January, rather than over Easter. The conduct comprising count 4 was entirely consequential on the circumstances identified in count 3.

The primary basis of challenge to the convictions on these two counts turned on the failure to advert to the specific offending conduct until after the amended lengthy statement to police in 2015, coupled with earlier express denials of oral or anal intercourse. There were other bases of challenge to the complainant’s evidence which the jury rejected and, for reasons explained below, were entitled to reject. The circumstances of the first complaint of these offences were quite different.
The complainant gave evidence of an attempt to tell his stepfather that something untoward had occurred on the boat trip immediately he returned home. That evidence may or may not have been accepted, but, even on the complainant’s case, nothing was then revealed. Over the following decade, there was evidence of complaints of molestation and sexual abuse made to his parents and to friends. In 1993 he saw a psychiatrist, Dr Gregory Cook, after an episode in which he had threatened self-harm and was seriously depressed. However, none of these complaints descended into detail of conduct, location or time. In particular, there was no reference at any point prior to August 2015 to the act of fellatio which constituted count 3.
The complainant was cross-examined to suggest that the act of fellatio was the most intrusive and, in that sense, the most serious aspect of the conduct the subject of the charges. That line of questioning underpinned a challenge based on the failure of the complainant to give any account of this conduct to police over a lengthy period, in which ample opportunity had arisen.
The complainant made a statement to police on 29 March 2004. The statement was not in evidence and the form it took was therefore not before the jury. The following cross-examination took place: [8]
8. Tcpt, pp 281-282.

“Q. The first thing is that when you went to the police in 2004, you didn't say anything at all about a trip to Pittwater. What do you say about that?
A. Well, the, I do actually make a reference to the Pittwater by saying, I think that he, I had to touch his penis. ‘Would make him lie naked on the bed and massage his whole body, including his penis.’ Or, ‘And on at least one occasion, the victim recalls being made to touch the person of interest's penis.’
Q. So, you're saying that's a reference to Pittwater?
A. Well, it was the only time where he made me touch his penis.
Q. You didn’t mention the word, ‘Pittwater’, did you?
A. No.
Q. Or it being on a boat, did you?
A. No.
Q. Nor did you tell them about Graeme Curran putting your penis in his mouth, right?
A. That's correct.
Q. In fact, you said that you had never experienced anal or oral intercourse with the accused, right?
A. That's correct.
Q. So may I just check? As you were there in that police station at that time, had you yet remembered or understood that Graeme Curran put your penis in his mouth?
A. In that, at that point in time, it was wholly concealed within the black box of my subconscious. There was never any anal sex.”

The complainant explained why, despite his initial visit to the police, he did not feel emotionally strong enough to pursue the matter at that time. He next spoke to Police in Byron Bay in 2013. However, it was not until 12 December 2014 that he signed a formal statement. That statement made no complaint of fellatio, or any other misconduct on the boat on that particular night. The subsequent history of complaint was summarised in the address by senior counsel for the accused (Mr Boulten) in the following terms: [9]
9. Tcpt, p 1122(6).

“Then he went back to make another statement to the police in 2015, there were police from the sexual assault unit sat down and they spent two days with him and in that statement in 2015 the police made notes of what he was saying to them as they compiled his statement, another statement, and in this statement he said nothing happened to him on the boat that night. But on the way through he gave an account where he said, and the police officer made a note:
‘He wanted my affections. He wasn’t trying to get into my pants. He was trying to be affectionate. He used to call me little [diminutive of first name], little chicken, then he was expressing his desires for me but could control his sexual urges.’

That’s the note the police officer made in the police station on 17 August 2015. Then he said to the police ‘I have a block on what happened that night, something happened but it’s like I have blocked it out, like I have blocked it out’. Then as you know now he gave evidence that a week or so later after he’d been to the counsellors or something, he was driving into Byron Bay and it came to him, he remembered what had happened. He remembered that there’d been oral sex. So he rang up Mr Kitney, or rang up and spoke to Mr Kitney, and he said to Mr Kitney:
‘There was an incident on a boat. I was confused in my statement. Since the girls left I have opened my head up and I have remembered what happened. I remember he made me take my pants off, touched my penis, sucked my penis. We then had a fight, I pushed him away. I just spoke with my counsellor about it and wanted to tell you guys.’”

This account had been the subject of cross-examination: [10]
10. Tcpt, p 270(37).

“Q. You've given evidence about that trip up to Pittwater. You know what I’m talking about?
A. Yes.
Q. The conduct that you described in your evidence concerning those events was a step up in seriousness and intensity than what you described happening in the bedroom at Balmain. Do you agree with that?
A. That's correct.
Q. The conduct that you've described on that trip was much, much worse and intensive than what you have described happening at Balmain, right?
A. That's correct.
Q. The feature of the evening of the first night involving Graeme Curran removing your trousers and putting your penis in his mouth is perhaps the worst event that occurred ever between you and him apparently. Do you agree with that?
A. Yes. I mean, if you exclude psychological damage but yes, the physical – it's the most damaging, I guess, physically.
Q. It was the most intrusive sexual act that ever happened to you at his hand, right?
A. Just go over them but it was pretty bad having to put my hand on his erect penis.
Q. That's not very nice either but it's a fact, isn't it, that that oral--
A. Yes it was.
Q. --oral sexual connection--
A. Was very confronting.
Q. --very, very confronting, right?
A. That's correct.
Q. Are you sure that happened?
A. I’m positive that happened.
Q. Have you always thought that happened?
A. In the early years after it there's no doubt but I had put that memory into a little black box and put that box into a very dark room that also had a little trapdoor in it and the memory of the occasion was very well put out of my consciousness, I feel, to deal with the nature of what had happened.
Q. When did you put the memory into a little black box and put the box into a trapdoor? When did you do that?
A. I don't know because my subconscious did it.
Q. How do you know your subconscious did it?
A. Well, it's the only explanation for it that I can, can give you, Mr Boulten.”

Three psychiatrists and an academic psychologist gave expert evidence at the trial. Each of the experts considering in varying degrees that the treatment Dr Cook had undertaken over several sessions was a form of hypnosis. It will be necessary to return to the reliance placed on that evidence by the applicant in dealing with the general challenges to the complainant’s evidence. However, the medical evidence also addressed the explanation given by the complainant for his failure to recall the act of fellatio and, indeed, his express denial of any such act, in speaking to the police in 2004, preparing the written statement in 2013-2014, and the further statement in August 2015.
The complainant’s evidence of fellatio was put to Dr Ellis by counsel for the accused in the course of cross-examination, including the detailed description of the cabin on which the complainant said he had focused while the applicant was engaging in fellatio. Counsel asked:

“Is that the way memory normally operates?”

The evidence of Dr Ellis continued: [11]

“A. No, so normally the – there would be some awareness, maybe the level of detail would be much less, but there would be some awareness of an event occurring rather than it springing out of nowhere, and that if a person introspected on the event, they might come up with more details, but again, if they spend a lot of time and get a lot, a lot of details, a lot – many, many details, it doesn’t make those details any more likely to be accurate.
Q. A memory recovered in those circumstances, whether it’s true or false might well be totally honestly believed by the person who had the memory, right?
A. Yes, it would be indistinguishable from other thoughts and other memories that if it was – whether it occurred or not, but the – if it’s arrived at spontaneously in this manner that's described, that – in great detail, it’s not - it won’t seem different to other memories the person has.
Q. If the person can’t determine whether or not the memory is true, what hope the listener, doctor?
A. I don’t think there’s any special expertise that will tell whether the memory is true or not. I think there might be some characteristics of the memory that would render it more or less reliable. Like, for example, we talked about, before, delusions, and, and that sort of delusional memory would be – you would have much more confidence to say it wasn’t true. But yeah, there’s no special way to tell whether a memory occurred with the events as described in the memory.”
11. Tcpt, p 562(18).

Professor Kemp, the psychologist, was asked about particular traumatic memories being “blocked” or repressed. He was uncomfortable with that language because he considered that the memory was always present. He stated: [12]

“But this notion that something is completely blocked away and you cannot access it until with help or some, through some help you're able to release it and remember the detail, doesn't occur. I think the, the worry is that that, and I cannot be sure that this is what's happening, but that process also sounds like the process of memory change occurring, so –.”
12. Tcpt, p 830(22).

The other experts were also sceptical of the “black box” explanation given by the complainant. What the jury made of this evidence it is difficult to know. It must be common experience that people deny any memory of a particular event or other knowledge, but may have a sudden recollection if a particular trigger arises. While it is not easy to determine whether the jury accepted the psychiatric and psychological evidence, the conviction on count 3 suggests that they did not. That position would not necessarily be considered irrational. However, it is not necessary to address the issue in those terms because it is not necessary to accept the psychological evidence in that regard in order to raise a doubt as to the basis of the conviction.
There must be a doubt about the reliability of a memory at first denied in circumstances where it was expressly sought. There could be no explanation of inadvertence. It may also be accepted that the complainant was entirely convincing in his expression of the event as he described it. That is because an unqualified honest belief in one’s own memory of an event will allow for a convincing account to be given of the event. The difficulty arises because the listener (in this case the jury) has no means of testing the reliability of the account. The failure to remember (and the express denial of) such an event at several stages over the lengthy preparation of evidence for a court case must at least cast doubt upon the reliability of that evidence, which cannot be resolved by any rational method. Accordingly, if the jury used the benefit of hearing the complainant give his evidence as a basis for resolving that doubt, it misused its advantage in that respect. The doubt which must obtain in relation to the evidence of fellatio should have been a doubt entertained by the jury.
For that reason, the conviction on count 3 could not be allowed to stand. The cuddling and kissing which were the subject of count 4 followed as a sequel to the conduct the subject of count 3. Any doubt attending count 3 must therefore apply equally to count 4. It was for these reasons that, in my view, the Court was bound to set aside the convictions on counts 3 and 4.

(c) the acquittals – counts 8 and 9

The applicant submitted that the jury, having acquitted him of counts 8 and 9 ought to have had a reasonable doubt as to the reliability of the complainant’s evidence with respect to the remaining counts. If the further challenge to the convictions on counts 3 and 4 were accepted, the applicant submitted that the failure to obtain convictions on four counts must materially affect any assessment of the credibility and reliability of the complainant’s evidence with respect to the remaining counts. It is necessary to consider whether these submissions should be accepted.

(i) count 9

In determining whether the jury ought to have had a reasonable doubt as to any or all of the remaining counts, it is convenient to address first the conduct the subject of count 9. As noted above, the conduct in question occurred when the complainant and his brother were being taken by the applicant to go bushwalking in the Snowy Mountains. He described it as spring, when the snow was melting and during a school holiday. They stayed in huts over three or four days. Another person came with them on the walk, although the complainant could not remember his name. [13] He said that he was 14 or 15 at the time, indicating that the events occurred in 1982 or 1983. The ambiguity may have occurred because the complainant’s birthday was in July. In any event, the indictment identified count 9 as occurring between 1 June 1982 and 17 July 1983.
13. Tcpt, pp 183-184.
In cross-examination, the complainant confirmed details as to the huts they had visited and agreed that the person who had accompanied them on the hike was Mark Martin. [14] The cross-examiner put to the complainant that it was not spring but summer, and that the hike occurred in January. He accepted that it could have been summer but his memory of the ice melting and the wild flowers all over the hillside suggested to him that it was spring. [15]
14. Tcpt, pp 322-323.
15. Tcpt, p 322.
Mr Martin gave evidence of the bushwalking expedition, stating that it was the only such expedition in the Snowy Mountains he had undertaken with the applicant. He agreed there were two young boys with them. [16] He stated that he was then a child welfare officer based at Dee Why, but had been transferred to Moree in January 1981. He said that the bushwalk occurred before he was moved to Moree. His recollection was of two boys aged about 12 and 10. [17] Mr Martin also produced an entry in his mother’s diary dated 15 January 1980 which referred to him being on holidays at Kosciusko. In January 1980, the complainant would have been 12. Mr Martin’s evidence was not challenged by the prosecutor. [18] The applicant also gave evidence that the trip to the Snowy Mountains occurred in 1980.
16. Tcpt, p 878.
17. Tcpt, p 879.
18. Tcpt, pp 881-882.
There was, therefore, unchallenged evidence that the trip to the Snowy Mountains occurred in January 1980, outside the period identified in count 9 of the indictment. The jury were given clear instructions that they must be satisfied beyond reasonable doubt that “the act relied upon occurred in the time period and at the place alleged in the indictment.” [19] The direction was illustrated by reference to the evidence that the bushwalking holiday referred to by the complainant as the occasion for the visit to Bega occurred in 1980. There was, therefore, a clear explanation as to why the jury acquitted on count 9.
19. Summing up, 03/04/19, pp 3-4.
No doubt the confusion as to the dates of the trip may have cast doubt over the reliability of the complainant’s evidence in other respects. It is, however, not possible to draw any inference from the acquittal on count 9, other than that the jury was not satisfied that the events, if they occurred, were within the period specified in the indictment. The jury may have accepted the complainant’s account as to the circumstances of the offending, or may have formed no view about those circumstances at all, other than to be satisfied that the timing was wrong.
In addition to the incident the subject of count 9 which occurred at Bega on the way to the mountains, the complainant gave evidence that they stayed with the applicant’s brother in Gerroa on the trip home and had dinner at a restaurant in Berry. There was undisputed evidence that the brother did not move to Gerroa until 1983.
The same difficulty arises with respect to the events at the restaurant in Berry on the home trip. They did not involve criminal conduct, but an admission on the part of the applicant that he had acted improperly towards the complainant. Those events clearly did not occur on the return trip from the Snowy Mountains in 1980 and, in the complainant’s account, occurred late in the history of offending. Again, it is by no means necessary that the jury would have drawn any adverse inference as to the reliability of the complainant otherwise than with respect to timing, as to which the complainant himself conceded his inability to place events within years. If such an incident occurred late in the history of offending, it could have occurred while the applicant’s brother was in Gerroa.

count 8

Count 8 involved the applicant kissing the complainant whilst under the influence of laughing gas in the dentist’s rooms to which he had taken the complainant for dental treatment. The count on the indictment was alleged to have taken place between February 1981 and July 1983. The evidence led from the complainant placed it, chronologically, before the trip to the Snowy Mountains, but on the basis that that trip was the last event in the history of indecent assaults. Yet in his evidence, the complainant had been unable to place the event chronologically, his evidence-in-chief reading as follows: [20]

“Q. Do you remember how old you were at this time?
A. I, I, I don’t know how old I was at any time. Really. I, I don’t, I don’t know.
Q. Was this after the incident on the boat at Pittwater?
A. I couldn’t, I couldn’t tell you for - I, I, I couldn’t say. It was too much – many things going on.
Q. I want to take you to the next school holidays in winter after the incident occurred at the dentist. Do you remember going down to – a trip down to the snow with your brother and yourself and Graeme Curran?
A. Yeah.”

(He then gave the evidence referred to above that the event had occurred in spring not winter.)

20. Tcpt, p 182(32)-(42).

In cross-examination, the complainant was equally vague as to when the incident had occurred. [21] However, he agreed that he did not require gas during the dental procedure. Compared with the detail which he was able to give as to the circumstances surrounding other events, the complainant was vague as to all the circumstances surrounding this event.
21. Tcpt, pp 320-321.
The applicant agreed he had taken the complainant to a dentist who was a friend, but denied that any incident like that constituting count 9 had taken place. Curiously, although the complainant was cross-examined to suggest that the dentist may have been at Blacktown, the applicant gave evidence that the dentist practised in Mosman.
The degree of uncertainty as to when the incident occurred, and if it occurred, provided a clear basis for the jury to acquit on count 8. Apart from the sexual element of the kissing, the incident was far removed in kind from the other incidents described by the complainant which formed the basis of other counts. The jury may not have been satisfied beyond reasonable doubt that such an incident occurred, without that element bearing upon their assessment of the complainant’s reliability in other respects. Indeed, it appears to have played a very minor part in the course of the trial.

(d) consequence of acquittals

As explained above, the evidence as to count 8 was quite different from the evidence on all other counts; it was also imprecise as to the timing of the visit to the dentist. The only anchor, implicit in the way in which the complainant’s evidence was led, was that it immediately preceded the visit to the Snowy Mountains, which was the context of the count 9 offending.
The complainant’s evidence as to the timing of count 9 was demonstrably wrong. Indeed, it was affirmatively demonstrated on unchallenged evidence of a third party (Mr Martin) that it did not take place within the period identified in the count. It may be presumed that the jury acquitted on that basis. If that were so, it was not possible for the jury to be satisfied beyond reasonable doubt as to the timing of count 8. These conclusions, however, do no more than allow for a degree of unreliability as to the timing of particular events. His inability to be accurate with respect to timing was acknowledged by the complainant and was reflected in the range of dates given in identifying the various counts in the indictment. Although the applicant’s counsel at trial relied upon the doubts as to the timing of all the events, there was no reason for the jury to reject any particular count, other than counts 8 and 9, on the basis of that imprecision. Accordingly acquittal on counts 8 and 9 had no necessary consequence for the way in which the jury approached the other counts. The jury were, however, correctly directed to consider the effect of any doubt entertained in relation to one or more counts in considering the complainant’s evidence as to other counts. No issue was raised as to the appropriateness or the strength of that warning.
The element of unreliability with respect to counts 3 and 4 also had no direct consequence with respect to the other counts. There was no suggestion that the complainant had failed to recall the other events until he gave his police statement in 2014, nor that the brief record of his statement given in 2004 should be treated as indicative of a failure to recall the detail of the various events thereafter. In that respect, it was common ground that the brief police record made in 2004 did not expressly refer to the events in Pittwater which formed the basis of counts 5, 6 and 7, except to the extent that it included the applicant placing the complainant’s hand on his (the applicant’s) erect penis. The complainant said that only happened once – on the boat trip. The location of none of the events was indicated in the brief police record of his 2004 complaints. Accordingly, doubts arising from the extended period of not merely failing to record the events the subject of counts 3 and 4 in two detailed statements, but specifically denying the act of fellatio, falls into a completely different category. It should have been rejected, not because it was inherently implausible, but because the doubts which must have arisen about its reliability, based on both non-disclosure and express denial, were incapable of rational resolution.
Accordingly, the basis for rejecting of counts 3 and 4, and the implicit basis on which the jury must have rejected counts 8 and 9, provide no sound reason for doubting the reliability of the complainant’s evidence in respect of the remaining counts. The challenges to the other convictions must be assessed in their respective circumstances.

(e) unreasonable verdicts – counts 1 and 2

(i) contextual evidence

Many elements of the surrounding circumstances of counts 1 and 2 were not in dispute. First, the background of the close relationship between the applicant and the complainant’s family was well established by 1980. The applicant regularly took the complainant and his younger brother sailing with a friend on the yacht, Tarsus II, which was the yacht he borrowed for the Pittwater trip. When sailing on a Saturday, there was a pattern whereby the complainant and his brother would stay with the applicant in his Balmain house on Friday night.

count 1

The timing of count 1 could be identified with some precision. It was an agreed fact that the applicant and his brother settled on the purchase of the Balmain house on 28 November 1980. [22] Two weeks later, the applicant and the complainant left on an overseas holiday (departing 13 December 1980) from which they returned on 1 February 1981. The applicant gave evidence that he and his brother undertook renovations of the house some 18 months–two years after they purchased it. The fact that the events the subject of count 1 were interrupted by a visit from the builder indicated that those events occurred in the second half of 1982. The complainant gave evidence of a particular practice on Saturday mornings in the following terms: [23]

“Well it – on Saturday morning it was the norm – well, it – there was a ritual that took part – place, took – happened and he would wake up and get, get out of bed. He had a white frock that he used to wear around to like – the type of frock that you might associate with jack be nimble, jack be quick, jack jumped over the candle stick, running around with the – what you could also maybe visualise as an old lady's night dress or a dress and he would tip toe to the, the bedroom door and he, he'd lock the bedroom door, the big key chamber would go kerplunk and he'd – he, he'd walk back to the bed – I mean, I remember it – a prance kind of a walk at the – towards the foot of the bed and he would take his frock off and he'd – he'd get on to the bed at the bottom of the bed and he'd put one knee on other side of my ankles on – he would have – before I guess he got on to the bed he pulled down the bedsheets and I was lying there naked and he'd – would straddle my legs and then begin – not the type of massage where it's deep body tissue type of massage but a very gentle touching of the fingers on the skin massage.
We wouldn’t really call it a massage, it was more of a, a – well it was a – well it was, it was a light – gentle caressing and as he was doing it he'd say, ‘Just relax, just relax little [diminutive of first name] just enjoy the sensations of my feelings on your body’ … And he would progress up my legs to my groin region area and take his time to – I guess his fingers were sort of – you know, like just exploring the region and on occasions that the accident or touches of his fingers on to my penis and then the massage would continue up my body over my upper body to my face and there was a bit of a mantra I guess that he would be saying, ‘Just relax, just relax, close your eyes’ and as he got to my face he would still with very gentle fingers in that light caressing just touching the skin type of a massage he would close my eyes shut. He'd make – he'd close my eyes shut and then proceed back down my body to my groin area where he'd linger and would again have very gentle accidental touching of, of, of my penis and then move down to my feet and, and, and then repeat the process basically, come back up and back down again.”
22. The agreed facts were read to the jury at tcpt, pp 602-605.
23. Tcpt, p 75(33).

With respect to the day of count 1, the complainant stated: [24]

“Well we were some way into the ritual massage when – there was a big knock on the door, front door downstairs and Michael Innes was screaming out, ‘Graeme, Graeme’ you know like he'd come around and he was just calling out to Graeme and Graeme immediately said, ‘Fuck, fuck, get dressed, go downstairs’ and got dressed and went downstairs.”

He described the applicant as “half way through doing his massage on me”.

24. Tcpt, p 77(11).

The complainant was cross-examined as to why he called the garment the applicant wore as a “frock”. [25] It was suggested that he did so “to make it sound odd”. [26] He confirmed his evidence that the applicant was naked in bed, as was he, but that the applicant put the frock on in the morning before the massage took place.
25. Tcpt, p 262.
26. Tcpt, p 262(25).
In his evidence in chief, the applicant described the trip to Europe in December 1980-January 1981, agreeing that he would share a room with the complainant. He was asked about the sleeping arrangements and said that in some places there were two single beds made up separately, but abutting each other and in other places it was one double bed. [27] He said he mostly wore boxer shorts in bed. [28] The applicant confirmed much of the description of background events given by the complainant, including meeting the boys in his office towards the end of the day on a Friday afternoon, playing cricket until he was ready to leave, going out to dinner and then returning to Balmain. [29] With respect to the sleeping arrangements in the Balmain home, he answered the question “Would anyone sleep in your bed if there was a spare bed” by simply stating “No”. [30] By that he clearly meant that neither of the boys would sleep with him in his bed; he was not asked about the arrangements in the event that there was no spare bed available, there being only one spare bed when the applicant’s brother was home which he described as the usual circumstance. (The complainant had given evidence that he did not like to sleep with his brother.) The applicant’s evidence also suggested that he and the complainant would be in the bathroom naked together whilst he got into the shower and the boy got out.
27. Tcpt, pp 671-672.
28. Tcpt, p 672(37).
29. Tcpt, pp 673-674.
30. Tcpt, p 675(27).
He agreed that he had a “nightdress” which he used in lieu of a dressing gown but never wore to bed because there was too much material and he got tangled up in it. He described it as “white, fairly thin, creamy coloured material, linen almost that went down to almost your ankles”. [31] This did not contradict the complainant’s description. The applicant said that he slept in “boxer shorts, underwear.”
31. Tcpt, p 675.
The applicant’s evidence about the massaging was muted. The only evidence expressly referring to the ritual was as follows:

“Q. Now we’ve heard about the ritual?
A. Yes.”

He was then asked if he locked the room to maintain privacy “for the purpose of carrying out a ritual”, which he denied. He described the “normal routine at Balmain on a Saturday morning when the two boys were there prior to sailing”, a description which involved no massage ritual.
Further evidence relating to the complainant’s credibility will be considered below, but the primary evidence set out above provides no basis to doubt the veracity and reliability of the complainant’s evidence regarding count 1.

count 2

The complainant said he had been to a dance at the Catholic Club in Randwick one evening in 1981. He stated: [32]

“I was dancing on the floor and I kissed a girl for the first time in my life. Big moment. And I, I was dancing with, with her and she was like, kissing me on the neck and I didn’t know it, but she’d given, given me a hickey … a bruise on my neck, yeah.
…
I don’t remember how I got there but Graeme picked me up and took [me] home because we were sailing the next day. … [Next morning] we got up and we got dressed and ready to go for, for sailing, and, and you know, we were both clothed, and Graeme noticed that I had this bruise on my neck and I didn't know I had it there. … and he was, like, all of a sudden, you know, became aroused and excited and he asked me what had, you know, what had happened last night, you know, and I said, ‘Oh,’ he, like he was, he, you know, ‘Why have you got this on your neck? … and I said that I'd kissed a girl and, like, I was mortified that I had it on my neck like that. I didn't even know what really, that she'd been sucking on my neck.
Anyway, so Graeme become, became aroused and he started, you know, like cuddling and kissing me and you know, like, like, ‘Oh, oh, my little [diminutive of first name]'s kissed a girl, oh,’ and then, you know, like, ‘Oh, have – did you have an erection?’ and you know, ‘Did you, you know, did you have sex?’ and you know, but he was aroused and turned on by it and he was mauling me and kissing me with partially open, wet lips and he was getting off on the fact that I'd had my first sexual experience. I mean, this is a man of, he gave me the lesson on the birds and the bees, and now he's, and now at the first sexual experience that I have, he's getting off on it.
…
He asked me if I'd ejaculated and he asked, you know, like, he was, he wanted to know everything about it.”
32. Tcpt, pp 162-163.

This description of mauling and kissing became count 2 on the indictment. The challenge to the complainant in cross-examination was at most formal: [33]

“Q. I also want to suggest to you that there was no incident that you've described that involved him losing control of his emotions when he saw that you had a love bite or a hickey or something like that. That just didn't happen, I suggest.
A. I disagree.”
33. Tcpt at p 219(32)-(37)

The applicant said little in chief on this topic: [34]

“Q. Was there an occasion where you saw a love bite or a hickey on [the complainant’s] neck one day that caused you to want to kiss and fondle him and deal with him passionately?
A. No. No.”
34. Tcpt at p 643(31).

The cross-examination of the applicant was as follows: [35]

“Q. I suggest that that did occur and that the following morning you noticed that he had a bruise, a love bite or a hickey, on his neck, do you remember that?
A. No, it didn't happen.
Q. That's never happened?
A. No.
Q. I suggest to you that you were quite aroused by that and that you kissed and mauled, so to speak, [the complainant] talking about that particular incident? Didn't happen?
A. No. it didn't happen.”
35. Tcpt at p 750(16)-(26).

Despite the bland denial by the applicant, it was open to the jury to accept the complainant’s evidence, especially given other evidence of the applicant’s sexual interest in the complainant.

(iv) counts 5, 6 and 7

The events constituting these three counts occurred within a short period of time whilst the complainant and the applicant were naked on a sandbar on the second night of the boat trip. The complainant’s evidence has been summarised above.
There was contextual material which supported particular aspects of the complainant’s account. First, he gave evidence of a stop at the Palm Beach wharf where the applicant got off the boat in order to make a telephone call to report their safe arrival. Secondly, he described seeing a large shark circle under the yacht. Thirdly, he recounted the police launch coming up behind the yacht the next morning and calling “Attention, Mr Graeme Curran”. [36] He said:

“When the police launch came up close they scolded Graeme basically and said that there'd been an air, sea search and rescue that had been put 150 kilometres up and down the coast and out [to] sea looking for us, because he hadn’t called in to say that we'd made it safely.”
36. Tcpt, p 170(25).

He then described arriving at a little bay: [37]
37. Tcpt, pp 170-171.

“A. Well, we continued sailing up until we found a little bay that had a big sand spit coming out. You know, well it, it must've been a low tide, sort of low sandbank and we moored the boat and like it was a, it was a nice sunny day and we threw the anchor out and then jumped off the beach and swam on, onto the sandbank and onto a secluded, deserted bay.
Q. When you swam did you have any costumes on or were you naked?
A. We were naked, yeah, we were naked …
Because Graeme, it was his way and, you know, and like it was, we were, were naked because we had to be naked. And we were, you know, running round in the water and a, a boat, I remember a boat came into the bay and we had to get under the water.
…
Just a little tinnie with a couple of people fishing off the back of it ....
… Anyway they were just cruising in through the, well, not the harbour, through the bay, and as they, they came in and then as they left the bay, they said, ‘As you were.’ They called out, ‘As you were’, kind of thing, you know, and I didn’t know what that meant, and I asked Graeme, ‘What does that mean?’ And he said, ‘It's a military term for telling people to go back to doing what they were doing before those had arrived on the scene.’ And so they left the harbour. …
Q. Now, in relation to you being naked … did Graeme say anything about why you should swim naked?
A. Well, it was just about being uninhibited and not needing to have any inhibitions about being naked. That it was a natural thing and it was just a normal part of life that you should not worry about.”

He then gave a detailed account of the evening, mooring in a bay and taking the dinghy to the beach to have dinner. He recounted collecting firewood to make a bonfire on the beach. The evidence continued: [38]
38. Tcpt, p 174(37).

“Q. You went to the beach. Do you remember whether you were clothed or naked?
A. No, we had to be naked all night that night. From the beginning of the, when we were on the beach, we were naked.
…
Q. Yes, why you were both naked.
A. Graeme asked me to be naked.
…
Well, we ate, and then I had to sit beside Graeme, like we were sitting side by side on the – well, I don't, on the, if you were looking at the beach, we were sitting on the left-hand side of the fire, and so we were sitting side by side beside the fire facing the water …
He asked me to, like, spread my legs open in a, you know, so that my legs were open, and he sat beside me with his legs open as well, and then, and then he put his hand on my penis and started masturbating me – well, trying to make me have an erection, you know, my playing with my penis with his left hand. He, he put his left hand onto my penis and he was, like, shaking it, and then he took my left hand and he put it on his erect penis.
Q. You recall his penis was erect, do you?
A. It was definitely erect.
Q. Did you get an erection at this stage?
A. No.
Q. Did he persist in attempting to masturbate you?
A. He continued to try and make me have an erection and the only thing I could think to do was to jump up onto my hands and knees and I kind of made light of the situation and to get away from him.
Q. When you say you jumped up on your hands and knees, were you pretending to be something?
A. I was pretending to be a dog and sort of, you know, like, I, I, like a dog, I was going, ‘Ruff, ruff, ruff,’ you know, and I was on my hands and knees on the sand and I went, I circled around the fire, and he made, chased after me and, you know, kind of was, like, laughing like it was a, you know, kind of joined in the, my game of being like a dog, but it, you know, like it was a scared shitless dog that was trying to get away from a fucking certain disaster.
…
… I felt like he was, he was going to have sex with me, and that was my fear, and I got up and I, I pretended to be a dog and ran around the fire, and I ran all the way around the fire to the, like, a full circle of the fire, I came back to where we'd been sitting basically, and that's when he crash-tackled me to the ground.
And he got, grabbed, grabbed me to the ground and, and then he was sort of a you know, like a, a, his sexual advances now I guess became more like a dog humping another dog in that he was, you know, like rubbing his erect penis on me, grope, groping me ….
… So it was a tussle with him groping to, you know, in so he was just mauling me on the beach trying to, you know, like be on, he was on top of me and I was fighting him off, and, and I started crying.
…
And I was crying and he, he, he didn’t sort of, there wasn’t sort of a, I don’t remember it being sort of like, not the, a consoling kind of attitude from him after that. It was more like he was pissed off that I wasn’t going to continue on, and, and he wasn’t going to get to have his way with me.”

The applicant’s evidence was that on both evenings the boat was moored in Cowan Creek and he and the complainant had dinner at the Cottage Point Inn. The prosecution challenged that evidence on the basis that, had they been at the Inn on the first night, he would certainly have called the complainant’s parents to tell them they had safely arrived. The attempt to telephone the parents had failed at Palm Beach, and would, it was suggested, have been repeated at the next opportunity. Further, the police having arrived during the second day, if they had returned to the Inn that evening, again it was implausible that the applicant would not have tried to telephone the complainant’s parents to apologise and confirm their safety.

That evidence formed a significant element in the prosecution case, namely that in an attempt to undermine the complainant’s evidence, the applicant had lied as to the events of both evenings.
The manner in which the prosecution used that evidence formed part of the complaint about the prosecutor’s address and will be dealt with in more detail below in relation to ground 1.
With respect to the trip to Pittwater, the applicant confirmed many of the details of the events of the first day and night given by the complainant, including the sighting of a shark under the yacht. He also confirmed being approached the next morning by a police launch, but treated the incident with a degree of nonchalance. He denied that he and the complainant were naked at any stage during the day, that they had a bonfire at night and that he tried to masturbate the complainant or get the complainant to masturbate him. He also denied that the complainant ran around “in the nude acting like a dog” and that he brought his body up against the complainant, both of them being naked. [39]
39. Tcpt, p 684(37).
Subject to consideration of the extent to which the evidence of complaint was supportive of the prosecution case, and the extent to which challenges to the reliability of the complainant’s evidence, particularly having regard to the medical evidence, were subversive of that case, it was well open to the jury to be satisfied that the conduct constituting counts 5, 6 and 7 occurred in the manner recounted by the complainant.

(f) complaint evidence

The earliest evidence of complaint was that of the complainant. On the night they came back from the Pittwater trip, he having determined to tell his stepfather what had been happening, waited till his mother had gone to bed. The following evidence was led: [40]

“Q. What did you say to him?
A. I said, ‘[using his stepfather’s first name], Graeme has been touching me’, and I said it loud enough so that Graeme would hear. It was like, you know, like I, I said it so that, so that [his stepfather] heard it and Graeme heard it, and I said it and Graeme instantly rebuked or you know, he instantly, he said, ‘Don’t be ridiculous, [complainant’s first name]. That didn’t happen.’”

The applicant then said to the complainant, “Just, you can go to bed”. The complainant said that his stepfather did not react or raise the issue with him thereafter.

40. Tcpt, p 178(10).

The complainant was cross-examined as to whether this happened at their home at Coogee or at Woolooware. The applicant said they were living in Coogee at the time of the boat trip, but accepted that a similar conversation occurred later at Woolooware (that is, after October 1982). The applicant gave evidence of an allegation of inappropriate touching raised by the complainant’s mother in the following passage: [41]
41. Tcpt, p 693.

“Q. Then was there ever any incident where somebody raised issues or an issue about your dealings with [the complainant]?
A. I can remember an occasion, and I think it was in 1986, but I'm not precise about this. [The complainant’s mother] raised something about, ‘Have you been touching [the complainant] inappropriately,’ or words to that effect or, doing something inappropriate.
…
Q. When the issue was raised what did you say in response?
A. I said that there was an occasion when he was staying at Balmain and I had inadvertently barged into the bedroom he was in at the time and he didn't have any clothes on and he had an erection. And I felt embarrassed, he felt really embarrassed as well, and I think he was a bit discommoded by all of that.
Q. Did you say something like that to with mother?
A. Yes, yes, I told them about that and I said I felt ashamed.
Q. Why?
A. Because I'd perhaps stayed and looked too long. I just thought it was something that shouldn’t have happened?” [42]
42. The previous question probably should have read “to his mother”, and there should not have been a question mark at the end of the last answer.

The conversation was said to have taken place when the applicant, the complainant’s mother and the complainant’s stepfather were present in the kitchen in the home they had at Woolooware. The complainant was not there during that part of the conversation, but the evidence continued: [43]

“Q. Did see or you hear anything from [the complainant] concerning this?
A. No, but they indicated that [the complainant] had spoken to either [his mother] and/or [his stepfather]. [The complainant] then came into the room and said – started to say something. And I said, ‘Look, I've told them’ – I can't remember what he said – or, ‘I've spoken to them about it.’ He never raised it with me.”
43. Tcpt, p 693(50).

He was asked when the incident he had described occurred and said it was 1983 or 1984 but he was uncertain exactly when.
The prosecutor relied upon the description of the event in which he was both embarrassed and ashamed as involving an element of admission of inappropriate conduct with the complainant. The jury may have considered it supported the complainant’s evidence of a conversation in the kitchen at Woolooware.
The complainant’s mother also gave evidence of an occasion whilst they were living in Woolooware where there was “a heated moment” between herself, the complainant and his stepfather. The applicant was also present. His mother remembered the issue being whether the complainant could go somewhere and “we didn’t want him to go”, implying at least opposition from herself and the complainant’s stepfather. She said that the complainant entered the room and said words to the effect of “You don’t know what he’s been doing”, to which the applicant “very quickly said, ‘It’s all right [using the complainant’s first name]. I’ve told them everything.’”
The mother said that the conversation stopped there, but she understood that the complainant had been referring to Pittwater. She said that the conversation had taken place in the kitchen at Woolooware. [44] In short, the applicant’s evidence gave support to the mother’s account of the allegation by the complainant, general as it was, and some indirect support to the complainant’s evidence that he had made a similar oblique complaint about the applicant in relation to the boat trip at a time when at least the applicant and his stepfather were present.
44. Tcpt, p 412.
The complainant’s stepfather also gave evidence of a discussion between him and the applicant. The stepfather said the complainant had wanted to have some sort of meeting and told him that “something happened on the boat trip” but he would not say exactly what. The evidence continued: [45]

“So I asked Graeme and he said that he looked at him naked on the boat and that he felt ashamed of it.”

The stepfather said that he passed on that information to the complainant’s mother. [46]

45. Tcpt, p 444(10).

46. Tcpt, p 444(35).

The complainant’s stepfather also gave evidence that the complainant had told him in 1985 that “something had happened on the boat trip” but the complainant, when asked, would not elaborate. [47] He said that he had then asked the applicant, who said that he (the applicant) “looked at [the complainant] naked on the boat and that he [the applicant] felt ashamed of it.”
47. Tcpt, p 444(8).
The stepfather gave evidence of the complainant inviting him and the complainant’s mother to come to his flat in Bondi so he could “tell you about what happened to me”. When they were there, the complainant told them that he was on the boat and had been “sexually abused.” [48] He did not recall the complainant going into physical detail, but understood “it was something serious”, and not what the applicant had described to him earlier. He also said that the complainant was very angry, both with the applicant and with his parents whom he blamed for not protecting him. [49] Both stepfather and mother thereafter broke off all contact with the applicant. Both recalled an incident in 1992 when they had been invited to a birthday party in Surry Hills and had agreed to attend on the basis that the applicant would not be there. The stepfather said that he had telephoned the applicant and said “we can’t see you anymore because of what you have done.” He could not recall any response but thought the applicant “just accepted it”. [50]
48. Tcpt, p 445(50).
49. Tcpt, p 446(20).
50. Tcpt, p 446(37).
When they arrived at the party in Surry Hills they found the applicant was there and said to them, “Do you want me to be here” or “Do you want me to go”. The complainant’s mother had replied “Yes” to the second question and the applicant had then left the party.
The complainant’s mother confirmed that there had been a further conversation between her husband and the applicant, as a result of which they cut off all contact with the applicant. However, she denied that she had been present when he said that there had been an incident as a result of which he “felt very embarrassed, I walked into a room, I saw him in the room, he had an erection. That I felt uneasy about it. I felt uneasy having intruded. … Perhaps I should have walked out of the room but I didn’t.” [51] She did agree, however, she was present when the applicant had said, “Don’t worry, I’ve already told them all about it” to the complainant. [52]
51. Tcpt, p 428(45).
52. Tcpt, p 429(14).
This evidence was not only evidence of complaint (and attempted complaint) by the complainant either immediately following the boat trip or within three years thereafter, but an attempt by the applicant to divert the complainant from saying anything further when he had tried to raise the matter. Not knowing that there had been no revelation to his parents by the applicant consistent with the complainant’s account of the events, it was open to the jury to treat that apparent misunderstanding as an explanation of why there was no further discussion with his parents for several years.
The cross-examination of the stepfather was designed to reorder the temporal element of the two conversations with the applicant so that the applicant’s statement about coming into the room when the complainant was naked preceded the statement to the complainant which diverted him from saying anything further about sexual abuse. That reordering was rejected. The cross-examination did not challenge the stepfather’s evidence that when confronted the applicant had accepted without apparent demur that his relationship with the family was over; there was no challenge to the evidence that he had willingly left the party when the complainant’s mother had said they wanted him to go, although he placed the event in 1994, rather than 1992. Although the complainant’s parents had no detail as to the nature of the sexual abuse, it was open to the jury to accept this evidence of the applicant’s responses as admissions by the applicant that there had been some form of serious misconduct of a sexual nature.
There was also evidence given by two friends and former flatmates of the complainant. One gave evidence that the complainant had written him a letter in which he described being abused by the applicant, using the word “rape”. He also said the complainant described having been “locked in the room” by the applicant. He no longer had the letter, but he believed that he had received it in 1993. He said that he did not seek further details from the complainant. [53]
53. Tcpt, pp 511-513.
Another friend who had met the complainant at art school and shared a house in 1992 through to 1994 or 1995, also gave evidence that the complainant had “on several occasions” said that “Graeme had molested him and he, he, on, on several occasions he said that he’d molested him and on a few occasions he used the word ‘Rape’.” The complainant had further said that “he stayed at Graeme’s house and that it, that it happened at the house, and the house, the house was in Balmain. I know that because when we were working together in, in Balmain, we drove, we were driving near to where we were working on Darling Street renovating a restaurant and, and we came across the house. And he pointed to the house and said, ‘That’s the house, that’s Graeme’s house, that’s where it happened’.” He believed that the conversation took place in 1987 and 1988. [54] In cross-examination, he agreed that the conversation in Balmain took place while they were working together in 1992 or 1993. Otherwise, his account was not effectively undermined.

(g) evidence of payments by accused

54. Tcpt, p 496.

From 1996 to 2008 the complainant was married to a woman with whom he had four children. By 2011 he described himself as, in effect, destitute and “suicidal”. [55] In 2011 he re-established contact with the applicant. At their first meeting, the complainant asked the applicant for money. The applicant told him to make a list of his debts and expenses. The applicant then drove him to the apartment where the complainant was staying. As he was about to get out of the car, the complainant said, “Why did you do all those things to me?”, the applicant replying that “he didn’t know what I was talking about. He said ‘I didn’t do anything. I don’t know what you mean.’” The complainant said he continued to look at the applicant “and then he broke down crying and said he was sorry.”
55. Tcpt, p 208(25).
The complainant prepared a list of “debts” which included the costs of his psychiatrist and other medical expenses he attributed to the applicant’s conduct over his teenage years. At the next meeting he asked the applicant for $20,000 which the applicant described as a “ridiculous amount of money”. [56] He said that the applicant agreed to buy him a car for $3,000 and pay off debts of $7,500. The applicant then set up a bank account in the complainant’s name into which he paid “$300 and $500 maybe, on a weekly or fortnightly basis. … I don’t recall the exact amounts.” The applicant kept in touch with the complainant by telephone thereafter, the complainant then residing in northern New South Wales. The applicant’s telephone records revealed that between 1 June 2011 and 27 February 2012 (some nine months) the applicant made 234 calls to the complainant’s number.
56. Tcpt, p 211(4).
This evidence was relied on by the prosecution as indicating a consciousness of guilt.

(h) effects of hypnosis and drug taking

In 1993 there was an episode when the complainant was significantly depressed and threatening self-harm. The applicant took him to Sutherland Hospital, but he was not admitted and went home with his mother. Shortly thereafter, in June 1993, he was referred by the applicant’s brother, Dr David Curran, to a psychiatrist, Dr Gregory Cook.
Dr Cook gave evidence from his notes of the first consultation on 17 June 1993 in the following terms: [57]

“Well that he was, been very depressed and had suicidal thoughts and feelings and that he'd had … ‘a background of sporadic depression over the years and that each episode that he had was becoming more intense’. Further, I elicited history that his father had died when he was aged about four and a half and found his father on the bathroom floor. And there are other matters over the page, he had a history of drug and alcohol abuse, and had mentioned inhaling fluorocarbons and, as a 17 year old, cannabis and, …. And that very much all of last year … ‘smoking and drinking heavily while painting through the night and drinking two litres of’, I presume wine … for about three to four months and also episodes of using LSD. … That ‘he'd had animosity between himself and his stepfather, that [his] stepfather had brought a lot of friends into the family and named one of them, developed some strong relationships and became … sexually molested 12 to 14 years roughly’….”

Dr Cook said he named the applicant whom he knew to be Dr Curran’s brother. The complainant had said that “he told his family when he was 18 to 19 years old.”

57. Tcpt, p 84(45).

In notes of a consultation on 9 July 1993 he had recorded, “recalls Graeme making him break up with certain girlfriends”, and “now sees what happened to him as rape, emotional rape.” [58]
58. Tcpt, p 89(23) and (34).
In the notes for 3 September 1993 Dr Cook had recorded the complainant saying “the sexual relationship started at 13 years old, weekends, drinking, parties, getting touched up by G” and “sleeping with Graeme, massaged from head to toe by Graeme [the complainant being] frozen with anxiety on those occasions.”
Dr Cook described his treatment as involving a form of relaxation therapy which involved the patient going into a trance, having some overlap with hypnosis, although he said it did not involve implanting suggestions. [59]
59. Tcpt, p 107(10)-(40).
Whatever may have been the effects of that treatment, the complainant’s accounts of his molestation did not contain more detail than that set out above. The complainant described his sessions with Dr Cook as treatment that was “making me forget the trauma of what had happened.” [60]
60. Tcpt, p 354(3).
The applicant called evidence from a psychologist and two psychiatrists to establish two broad propositions, namely that (i) the complainant’s evidence would be unreliable as a result of extended periods when he had been abusing drugs and (ii) because he had undergone a form of hypnosis with Dr Cook. Both activities were identified as likely to have rendered his memory unreliable.
The psychiatrists were highly critical of Dr Cook. Although Dr Cook had not described his treatment as a form of hypnosis, the psychiatrists called by the applicant were satisfied that it was. Further, they noted that Dr Cook had failed to make a clear and detailed record of the complainant’s memory of particular events prior to embarking on the treatment.
The jury may well have accepted the thrust of the medical evidence in this regard. However, the jury was required to assess the evidence given in the witness box, which may have been unreliable as to dates, but was specific as to the detail of, and places at which, the critical conduct occurred with respect to each of the counts on which they found the applicant guilty. Further, there was substantial evidence by way of complaint and admission, most of which pre-dated the hypnosis, which confirmed the sexual interest of the applicant in the complainant and indecent assaults resulting from that interest.
It was also true that the jury would have weighed the strong evidence of good character called in favour of the applicant. However, the abusive behaviour of the applicant was limited to one victim and, although the massage ritual was said to have taken place on a regular basis at the applicant’s Balmain home, the only other occasion of abuse was on the boat trip to Pittwater and Cowan Creek.
Taking all of that evidence into account, there was ample material upon which the jury could be satisfied beyond reasonable doubt of the applicant’s guilt with respect to counts 1, 2, 5, 6 and 7, despite the medical evidence as to the potential effects of hypnosis and the evidence of drug taking.

Ground 1: statements by prosecutor

(a) accused’s motive to lie

The applicant alleged a miscarriage of justice resulting from two statements made by the prosecutor in the course of his address to the jury. The first statement concerned the incident on the Pittwater trip when the applicant had failed to contact either the yacht owner, Mr Curtis, or the complainant’s parents to let them know that they had arrived safely. The applicant’s evidence was that they had initially stopped at a wharf at Palm Beach to telephone the complainant’s parents, but that he was unable to “get through to them.” [61] He further gave evidence that on both nights when they were in the Hawkesbury River they had dinner at the Cottage Point Inn. [62] Having failed to report in the first night, they were accosted by police the next morning and their location identified. Accordingly, the second night at the Cottage Point Inn followed the contact with the police earlier that day. The prosecutor identified a “problem” with the accused’s evidence in the following terms: [63]

“But herein lies the problem that the accused has with the business about going to the Cottage Point Inn on both nights, the night they got there and the following night. If that occurred then when they got there the first night, knowing he hadn’t been able to get on that same day at the wharf to the complainant’s parents, you think he would have rung them because no doubt there would have been a phone there and they would have been allowed to use it, and told everybody that, you know, ‘We’re safe, we’re here at Pittwater, we’re at the Cottage Point Inn. Sorry I couldn’t get on earlier but we tried at the wharf but it just couldn’t happen’, and rather than being on the boat committing fellatio on this boy, you might think no way was he at the Cottage Point Inn because if he had have been he would have telephoned without doubt.
But then the following night, this is after the police launch have come up to them and told them about the search, told them they’d been searching, well you’d be worried, the [parents] would be worried and Jim Curtis would be worried, and so if he went back to this restaurant the second night, which obviously had a phone, you’d ring up and say ‘Look I realise now there’s been a search, sorry about that, I really really am sorry’. But ‘Yeah we just couldn’t get onto you when we tried and this is all happened as a result, but I apologise very much for that’. You’d think that’s what would have happened. This is a person of good character, you’d think that’s the way a person would, a normal sensible person of reasonable intelligence would behave. But no, because on the second night he wasn’t at the Cottage Point Inn, he was sitting on the beach naked with this boy masturbating him.”
61. Tcpt, p 682(35).
62. Tcpt, p 683(8).
63. Tcpt, p 1081(26).

There was no objection to the submissions set out above; however, the prosecutor then took the matter one step further: [64]

“You heard the evidence from Jim Curtis about them getting back from the trip and you’ve heard the evidence from the [parents] about them getting back from the trip and you just wouldn’t accept what the accused says about that. Why would he lie? Well, I’m not asking, it’s not up to you to tell why he lied, this is a case where the prosecution must prove their case. But on this occasion you might think he has lied because what he was doing rather than being at a restaurant, was performing the indecent acts both on the boat and on the beach.”
64. Tcpt, p 1082(2).

The applicant had been cross-examined by the prosecutor in relation to his account of dining on both nights at Cottage Point Inn. Early in his address the prosecutor identified his account as an example of lying. [65] The prosecutor then referred to the failure to contact the complainant’s parents by telephone on the second night. He continued: [66]

“You see what the Crown says here is that you've got allegations made by this boy that occurred a long time ago. He has come forward and given evidence about these matters. The accused has denied all of this, didn't happen. So, what you look, I expect, members of the jury and what the Crown says you look at, is a chink in the armour. A chink in the version given by this accused and of course he has plenty of motive to do that, you might think given the allegations and his position in life.”
65. Tcpt, p 1044(50).
66. Tcpt, p 1045(18).

At the next break, senior counsel for the accused drew to the judge’s attention the comment as to “motive to lie”, submitting: [67]

“The exhortation to assess the accused's credibility in that way is a reversal of the onus and standard of proof but it also is an impermissible comment to suggest that he has a motive to lie. That shouldn't be done and your Honour I'd call on your Honour to give the jury a firm direction that corrects that when you sum-up, not now.
HIS HONOUR: Not now.
BOULTEN: No because I think that would just highlight the problem, if you started in on it right now.”
67. Tcpt, p 1049(11).

Later that day, there was a dispute as to whether the prosecutor was entitled to invite the jury to treat the payments of money made by the applicant to the complainant in 2013 as evidence of consciousness of guilt.
The prosecutor’s address was not completed on that day, being Thursday, 28 March 2019. He resumed the following Monday, 1 April 2019. On the second occasion the passage set out above at [110], which in effect repeated the invitation to conclude that the applicant had a motive to lie, led Mr Boulten to raise the issue again at the next break, in the following terms: [68]

“Yes, I've changed my mind about the prosecutor's submission on Thursday that improperly drew the jury's attention to the accused having a motive to lie. That being an interest in being acquitted because my friend twice referred to the same topic in his address this morning. He did pose for the jury the question why would he lie and then later raised through his address the fact of a suspicion of the accused having a motivation to lie.
Now, it's unfair, it's an undermining of the onus of proof. It's calling into question the accused as it were as a general proposition being someone whose evidence is less persuasive or less reliable because of the interest that the accused has in the outcome of the trial.”
68. Tcpt, p 1085(5).

Counsel for the accused invited the judge to correct these misstatements, not before he, counsel, had addressed, but rather by giving a direction in the summing up. [69] Counsel said that he did not wish the directions to refer explicitly to the prosecutor’s address or to repeat what had been said, so as to avoid highlighting the improper statements.
69. Tcpt, p 1086(15).
The judge in fact gave several directions in accordance with matters proposed by counsel for the accused. The jury was told that, even if they preferred the evidence of the complainant, they should not convict unless satisfied beyond reasonable doubt as to the truthfulness and essential accuracy of the complainant’s evidence in respect of each count. The judge noted that this was “a very different approach to simply comparing versions and picking which version you prefer.” [70] The judge correctly summarised the prosecution’s submission as to the lies told by the accused as to where they had dinner on the trip to the Hawkesbury. The judge stated: [71]

“Whether the accused did in fact lie is a matter for you to decide. To decide that a lie was told you must be satisfied that the accused said something that was untrue and that at the time of making the statement he knew it was untrue. Saying something that is untrue by mistake or out of confusion or forgetfulness is not a lie. You should remember that the accused is giving evidence about events that occurred more than 35 years ago.
The accused denied that he lied. Mr Boulten pointed out that the only basis upon which you could conclude it was a lie is only if you believe the complainant and Mr Boulten pointed to issues regarding the reliability of the evidence of the complainant.
You should also consider whether the lie is in fact material to the evidence that has been given by the accused. It is, of course, possible that either the accused or the complainant might be mistaken about where they had dinner on a particular night.
If you decide that a lie was told by the accused, you cannot use that fact in support of a conclusion that the accused is guilty. … The only use you can make of the fact that the accused told a lie, if that is indeed your conclusion, is in relation to your assessment of his credibility. …
Also in the Crown’s address something was said about the accused having a motive to lie. I am directing you that you should disregard those remarks. The accused did not have to give evidence. He chose to do so. By giving evidence, the accused did not assume any onus or responsibility of proving his innocence. In this case, you treat the evidence of the accused the same as you treat the evidence of any other witness who has given evidence in the case. As I have said already, there is no obligation on the accused to prove anything. The burden remains on the Crown to prove the guilt of the accused beyond reasonable doubt.”
70. Summing up, p 13.
71. Ibid.

In Robinson v The Queen [72] the High Court set aside a conviction where the jury had been directed that one way of testing the credibility of the complainant and the accused, both of whom had given evidence in a case of sexual intercourse where consent the critical factor, had stated: [73]

“Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness’s evidence closely. You might think — it is a matter solely for you — that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely.”
72. (1991) 180 CLR 531; [1991] HCA 38.
73. Robinson at 534.

Such a direction was unfair because it tended to place the accused who gave evidence in a category of suspect witnesses and tended to undermine the presumption of innocence and thus the onus and standard of proof placed on the prosecution. [74]
74. Robinson at 535-536.
This case, as counsel for the applicant accepted, was not covered by Robinson. No such suggestion was made by the trial judge in the present case; indeed, he gave explicit directions contrary to any such inclination that the jury might have had. Rather, the basis of complaint lay with the suggestion by the prosecutor that the accused had a motive to lie. As noted by Macfarlan JA in MAJW v Regina,[75] referring to an observation of Grove J in an earlier decision, the “interest of an accused person in securing an acquittal is self-evident”. Nevertheless as Robinson explained, the risk of unfairness should the judge refer to such a matter is manifest; it will often give rise to a miscarriage. On the other hand, the same cannot be said of a passing reference by the prosecutor. It is, however, preferable that no such comment is made by a prosecutor. Once made, it places the trial judge in a difficult position. If the remark is allowed to pass without comment, the jury may place inappropriate weight on that factor; they may even consider that it has been condoned by the silence of the trial judge. On the other hand, in seeking to remove an inappropriate suggestion, there is a risk that the judge will reinforce the prejudice. In the present case, both counsel and the judge were alert to these problems. While the remark should not have been made by a senior prosecutor, the applicant has not established that it resulted in a miscarriage.
75. [2009] NSWCCA 255 at [40].
The suggestion that the jury might ask why the accused would lie, is inappropriate for the same reasons. Not only does it invite inappropriate speculation, but it invites an assumption that a statement is a lie unless the motive to lie can be rejected. In the course of submissions before the trial judge, reference was made to Palmer v The Queen. [76] However, the circumstances of Palmer fell into a somewhat different category. As explained in the joint reasons of Brennan CJ, Gaudron and Gummow JJ:

“[7] It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. …
[8] If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is ‘oath against oath’. In such a case, to ask an accused the question: ‘Why would the complainant lie?’ is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.”
76. (1998) 193 CLR 1; [1998] HCA 2.

In his written submissions, counsel for the applicant suggested that the need for the judge to give a direction as to the manner in which the jury should consider the possibility that the accused had told lies was “primarily because the complainant gave a different version”, noting that “[l]arge swathes of the applicant’s evidence fell into this category.” [77] However, that was not the primary basis for the prosecutor’s challenge to the accused, to which objection was taken. Rather, the prosecutor focused not upon the fact that the complainant had given a different account of the events of the evenings on the Hawkesbury River, but on the implausibility of the suggestion by the accused that they had dinner at the Cottage Point Inn on each evening in circumstances where there were strong reasons to find that, had he done so, he would have telephoned either Mr Curtis or the complainant’s parents. On neither occasion did he do so, although he agreed that he was sure that the Cottage Point Inn would have had a telephone which he could have used. It was that fact which cast significant doubt on his account.
77. Outline of submissions filed on behalf of the applicant, par 73.
Given the context, the fact that the statements to which objection was taken were made by the prosecutor and not by the judge, the careful and clear directions given by the judge to counter any impropriety in the prosecutor’s address and the fact that no application was made to discharge the jury, nor to seek any further directions, are powerful considerations for concluding that no miscarriage of justice occurred.

(b) unfounded tendency remark

The second aspect of the prosecutor’s address which was said to have caused a miscarriage arose from an acknowledgment that the applicant was a man of good character and well regarded by those who knew him. The prosecutor continued: [78]

“But members of the jury even people with good character commit offences. What the Crown says is here is a man who has otherwise very good qualities, who has a weakness and a weakness is for this particular boy, perhaps boys in general. That will lead him to be involved in this family and as he got further involved to have a sexual interest in this boy.”
78. Tcpt, p 1083(30).

The reference to “perhaps boys in general” was, as the prosecutor and the judge accepted, something which should not have been said. [79] In this Court, counsel for the applicant noted that immediate complaint had been made about the comment and objection taken. However, the applicant submitted that such improper comments placed him in a dilemma at the trial in that seeking withdrawal of the comment, or express direction about it, was prone to draw attention to it. No discharge of the jury was sought, but the effect of the comment was to undermine the character evidence which included the long history of close relationships with boys and young men with no hint of an allegation of impropriety other than the ones raised by the complainant.
79. Tcpt, p 1088(2).
The exchange with senior counsel for the accused in the course of the trial read as follows: [80]
80. Tcpt, p 1087(25)-(50).

“HIS HONOUR: Look, I’ve made a note of that as well. That would have been best not said, obviously. Do you want me to deal with that or would you prefer that I not highlight it?
BOULTEN: No, I don’t wish your Honour to highlight it and please don’t make any comment directly about my friend’s speech, but the tendency--
HIS HONOUR: I certainly wasn’t going to repeat that particular submission.
BOULTEN: Thank you, your Honour.
HIS HONOUR: But I’ve made a note of it to see whether you want me to say anything at all about it.
BOULTEN: Yes, I do your Honour. When your Honour summarises the tendency pleaded, it is necessary to highlight to the jury that the tendency sought to be proved is a sexual interest in the complainant. It is not suggested that the accused had a sexual interest in boys or prepubescent males or anything general. It is simply the complainant.
HIS HONOUR: All right. Well, if I simply tell the jury that in looking at the tendency evidence, it is relevant only in relation to the accused if the jury accept the evidence, having a sexual interest in this particular complainant, and being willing to act upon that interest, and that there is no suggestion that he had a sexual interest in boys generally. That would cover it.
BOULTEN: Yes, your Honour.”

A direction to that effect was given, in the following terms: [81]

“Next I turn to a category of evidence that is referred to as tendency evidence. As I have already explained, and you are aware, the accused is charged only with the offences stated in the indictment. You have before you evidence that the Crown relies upon as directly establishing that the accused committed those nine offences. However, you also have evidence that the Crown relies upon to show the accused had a sexual interest in the complainant and was willing to act upon it in the way that the complainant alleges. The Crown says you will also be satisfied that the accused had a sexual interest in the complainant on the basis of what I shall refer to as ‘other acts’ committed against or in the presence of the complainant. The Crown says that because the accused had this sexual interest, you would find it more likely that he committed the offences charged in the indictment.
The evidence of other acts is relied upon by the Crown as showing that the accused had a sexual interest in the complainant. It is not suggested by the Crown that the accused had a sexual interest in boys generally. …”
81. Summing up, pp 22-23.

Whilst the four words “perhaps boys in general” should not have been spoken, it was a passing and muted reference. The direction was clear and precise. Furthermore, there was unchallenged evidence from boys who lived next door to the complainant and had frequent contact with him during their youth who were entirely supportive of his character, as were their parents. Understood in context, the comment by the prosecutor could not have caused the suggested harm. There was no miscarriage of justice on this account.

Conclusions

As explained at the outset, the Court was satisfied that the jury should have had a reasonable doubt with respect to counts 3 and 4. However, the basis of that doubt, taken into consideration with the acquittals on counts 8 and 9, was not likely to have infected the jury’s assessment of counts 1 and 2 and 5, 6 and 7. The evidence in relation to those matters was plausible and persuasive, there being nothing in the transcript of the complainant’s evidence which indicates a basis for doubting that the events occurred as described. Most of the events described by the complainant as surrounding circumstances, so far as they did not involve sexual impropriety, were consistent with the evidence given by the accused. The general attack on the reliability of the complainant was open to rejection by the jury on that basis. On the other hand, there was conduct of the accused which tended to undermine his brusque denials of any wrongdoing. Even taking into account the missteps in the prosecutor’s address, as the applicant submitted the Court should do, I entertain no reasonable doubt as to the guilt of the accused on the remaining five charges.
For these reasons, I joined in the orders of the Court upholding the appeal with respect to counts 3 and 4 and resentencing the offender.
R A HULME J: I agree with the reasons of Basten JA for the rejection of Ground 1. I feel compelled to add, however, that it is startling that senior counsel who appeared for the Crown at trial could make such fundamentally flawed submissions to the jury. The choices forced upon senior counsel for the applicant were difficult and the task of the trial judge in maintaining the fairness and balance of the trial was made unnecessarily more onerous.

As to Ground 2, my assessment of the evidence at trial has led me to conclude that it was well open to the jury to return verdicts of guilty in respect of Counts 1, 2, 5, 6 and 7, notwithstanding its acquittals on Counts 8 and 9 and this Court's entry of verdicts of acquittal on Counts 3 and 4.
There was strong support for the evidence of the complainant through the general evidence in the trial. This included undisputed evidence that the applicant lavished the complainant with attention as well as with gifts, activities of interest to a boy of his age, and overseas trips. He did not deny sleeping with the complainant, albeit he claimed to have been clothed.
Events subsequent to the alleged offending included an admission made to the complainant's sister in 1992 when she called the applicant after having heard indirectly that he had done something to the complainant. She said he told her "it wasn't anything that bad" and that "he was in his mid to late teens". [82]
82. Tcpt p487 (35-40)
In addition, there were the rather odd statements made to the complainant's mother about feeling "embarrassed" and "ashamed" about having (on his account) inadvertently seen the complainant naked with an erection. There was also the payment of significant sums of money to the complainant a great many years after having had no contact with him.
Notwithstanding discrete aspects that might have raised doubt about some of the particular incidents alleged, it was well open to the jury to regard the cumulative effect of this evidence as supporting the general tenor of the complainant's evidence.
The foregoing brief reasons, and my agreement with the more detailed analysis provided by Basten JA, explain why I joined in the orders made by the Court on 18 June 2020.
HAMILL J: I have had the advantage of reading the draft judgments of both Basten JA and R A Hulme J. Their Honours’ judgments encompass the reasons I joined in the orders made on 18 June 2020.
The approach to be taken by an appellate court to a ground asserting that guilty verdicts are unreasonable and unable to be supported is well established. It was most recently restated in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394: see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.
My review of the record led me to the conclusion that the jury ought to have entertained a reasonable doubt in relation to counts 3 and 4. The complainant failed to make any allegation of an act of fellatio in spite of a number of opportunities to do so. He was involved in an inordinately long process of making a statement between 2013 and 2014 and then made a statement over two days which was signed on 18 March 2015. Of the night on which the allegation in count 3 allegedly occurred he said “nothing else happened that night” and “he wasn’t trying to get into my pants”. The complainant also told police “I have a block on what happened that night”.
Of even greater significance was that, when the complainant first spoke to police in 2004, he specifically denied that oral sex had ever occurred. He said “it only ever amounted to inappropriate touching”. There was also an odd glitch in the complainant’s evidence when he said the appellant “used his forefinger to bounce it up and down in my mouth”. This suggested that the complainant fellated the appellant, rather than the other way around. This was contrary to the prosecution case and the complainant’s evidence of what occurred. The complainant corrected this when confronted by senior counsel a couple of questions later.
In light of all of this evidence, I entertained a very strong doubt that the allegation in count 3 occurred. No advantage enjoyed by the jury was capable of dispelling that doubt. Because of its connection to count 3, this led inevitably to a reasonable doubt as to the reliability of the complainant’s account relating to count 4. For those reasons I agreed with the orders quashing the convictions on those counts and entering verdict of acquittal in respect of each.
I considered whether the doubt entertained by the jury in relation to counts 8 and 9, and the doubt that the jury ought to have had in relation to counts 3 and 4, “damaged the credibility of the complainant with respect to all counts in the indictment”: Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56. I concluded that it did not. As Basten JA explains, the acquittals on counts 8 and 9 arose from particular aspects of the evidence relating to those counts. Similarly, the doubt in relation to counts 3 and 4 arose largely as a result of the complainant’s denial of any act of fellatio and the failure to complain about the incident for many years after the event. The other counts were of a much less serious nature and received general support from the relatively early complaint, the nature of the relationship established on the evidence, the admissions (or non-denial) to Ms Spillard, and the admissions by conduct arising from the payments of money many years after the event and following an extended period where there was no contact between Mr Curran and the complainant.
The doubts around counts 3, 4, 8 and 9 were doubts concerning the complainant’s reliability and accuracy. They did not give rise to a general doubt as to his truthfulness or credibility. While it entertained a reasonable doubt as to its accuracy and reliability with respect to counts 8 and 9, the jury obviously accepted the complainant’s evidence as being truthful. Similarly, the doubts this Court entertains in relation to counts 3 and 4 (doubts which the jury ought to have entertained) relate to the reliability of the complainant’s account in respect of those counts. A review of the entirety of the record, and giving full effect to the adverse findings concerning those parts of the complainant’s evidence which were unreliable or inaccurate, did not lead me to conclude that there was a reasonable doubt in relation to the remaining counts.
For those reasons, and for those given by the presiding Judge, I would dismiss the appeal insofar as it relates to the convictions on counts 1, 2, 5, 6 and 7.
As to the first ground, I respectfully join in the additional comments made by R A Hulme J at [130]. The “errors” (to put it neutrally) in the Prosecutor’s address were egregious. They raised impermissibly Mr Curran’s motive to provide a false account and, worse still, they asserted a tendency to have a weakness for boys in general. Not only was there no evidence capable of supporting that highly prejudicial suggestion, there was a solid body of character evidence to the contrary. In those circumstances it was quite wrong for the Prosecutor to address the jury in the way they did.
The duties of a prosecutor are well established and it is unnecessary to restate them here: see, for example, Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 (Deane J); [1983] HCA 42; Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [24]-[32]. As the Public Defender appearing at the trial in Livermore said, the Prosecutor in a criminal trial is “clothed in the authority of the office of the Crown, presenting [themselves] as representing the community and presenting [their] case fairly”: Mr Parker’s submissions are reproduced in this Court’s judgment at [19]. Strict adherence to the ethical duties of propriety and restraint is essential to the proper functioning of the adversarial and accusatorial system of criminal justice. As both Basten JA and R A Hulme J have found, that did not happen in this case.
As R A Hulme J has pointed out, the Prosecutor’s conduct placed senior counsel for Mr Curran in an invidious position. The trial had proceeded for three weeks and a number of expert witnesses had given evidence. That involved a significant investment in time, emotional energy and money. To ask for a discharge of the jury at that point in the proceedings would have been a significant thing. It is clear from the transcript that serious consideration was taken to making that application.
Even so, the careful and repeated directions given by the trial Judge, which accorded with the requests and submissions of senior counsel both as to content and timing, were such that I am satisfied that the Prosecutor’s address did not lead to a miscarriage of justice. Accordingly, I would not uphold ground 1.
It is for those reasons that I joined in the orders made on the 18 June 2020.

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Endnotes

Decision last updated: 20 July 2020

Medium Neutral Citation:	Curran v R [2020] NSWCCA 171
Hearing dates:	11 June 2020
Date of orders:	18 June 2020
Decision date:	20 July 2020
Before:	Basten JA at [1]; R A Hulme J at [130]; Hamill J at [137]
Decision:	(1) Grant leave to appeal against conviction. (2) Allow the appeal against conviction in part. (3) Quash the convictions on Counts 3 and 4 of the indictment and quash the aggregate sentence imposed. (4) Enter verdicts of acquittal in respect of Counts 3 and 4. (5) Appeal otherwise dismissed. (6) In respect of Counts 1, 5, 6 and 7, sentence Graeme Bryan Curran to an aggregate term of imprisonment of 16 months with a non-parole period of 9 months. The sentence is to date from 23 August 2019. The non-parole period expired on 22 May 2020 and the total term will expire on 22 December 2020. Accordingly, the offender is now entitled to release pursuant to a statutory parole order.
Catchwords:	CRIME – appeals – appeal against conviction – sexual assault offences – applicant convicted of seven of nine counts of indecent assault on a male – whether jury verdict was unreasonable or unsupportable having regard to the acquittals – convictions quashed on two counts – open to the jury to be satisfied of the applicant’s guilt in relation to the other five counts CRIMINAL PROCEDURE – trial – conduct of prosecutor – two inappropriate statements in closing address – suggestion that the accused had a “motive to lie” – suggestion that the accused had a general tendency not supported by the evidence – whether miscarriage of justice EVIDENCE – reliability – whether complainant’s evidence capable of sustaining convictions of two counts of indecent assault – details of assaults given many years later after several statements to police – express denial of facts charged – effects of hypnosis – memories suppressed – whether evidence unreliable – whether jury could rationally assess reliability
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MAJW v Regina [2009] NSWCCA 255 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Pell v The Queen [2020] HCA 12; 94 ALJR 394 Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category:	Principal judgment
Parties:	Graeme Bryan Curran (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Boulten SC / Ms G Lewer (Applicant) Ms M England / Ms E Curran (Respondent) Solicitors: Carroll & O’Dea Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/328847
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), there shall be no publication of any information that would reveal or tend to reveal the identity of the complainant, including the names of family members of the complainant, and the complainant’s address details. Pursuant to s 7 of the Act, there shall be no publication of the contact details of the applicant including his address, telephone number or email address.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 August 2019 Before: Rafter SC ADCJ File Number(s): 2017/328847