DH v The Queen

[2020] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	DH v R [2020] NSWCCA 2
Hearing dates:	20 November 2019
Decision date:	06 February 2020
Before:	Hoeben CJ at CL at [1]; Price J at [145]; Campbell J at [147]
Decision:	(1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – judge alone trial – twelve counts of sexual offending against four victims – applicant convicted of seven and acquitted on five counts – victims aged between 5 and 15 – tendency evidence – a single ground of appeal – whether verdicts of guilt were unreasonable having regard to the evidence – applicant’s case that evidence had been concocted – complainants found by judge to be honest – evidence established physical abnormality in applicant – failure of complainants to give evidence of physical abnormality – whether this failure rendered guilty verdicts unreasonable – evidence of three complainants found to be reliable – verdicts of guilt not unreasonable – conviction appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61M, 61O
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Filippou v The Queen (2015) CLR 47; [2015] HCA 29 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:	Principal judgment
Parties:	DH – Applicant Regina – Respondent Crown
Representation:	Counsel: TD Anderson – Applicant B Baker – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2015/311458
Publication restriction:	Statutory prohibition on publication in relation to identity of complainants and non-publication orders in relation to the identity of the applicant and family witnesses.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 June 2018 Before: Gartelmann SC DCJ File Number(s): 2015/311458

JUDGMENT

1. HOEBEN CJ at CL:

Introduction

The applicant stood trial at the District Court at Lismore before Gartelmann SC DCJ (the trial judge), sitting without a jury, in respect of 12 sexual offences that were alleged to have been committed by the applicant against his son, DH, and step-sons, JS and JG.

2. In a judgment delivered on 29 June 2018, the trial judge found the applicant guilty of the following counts:

(i) Counts 2 and 3, which each alleged that the applicant incited JS, a person then under the age of 10 years, to perform an act of indecency with him contrary to s 61O(2) of the Crimes Act 1900 (NSW);

(ii) Count 4, which alleged that the applicant indecently assaulted JS, a person then under the age of 10 years contrary to s 61M(2) of the Crimes Act;

(iii) Count 5, which alleged that the applicant incited JS, a person then under the age of 16 years, to perform an act of indecency with another person, namely JG, whilst JS was under the applicant’s authority contrary to s 61O(1) of the Crimes Act;

(iv) Count 6, which alleged that the applicant indecently assaulted JS, whilst JS was under the applicant's authority contrary to s 61M(1) of the Crimes Act;

(v) Count 7, which alleged that the applicant indecently assaulted DH, a person then under the age of 10 years contrary to s 61M(2) of the Crimes Act;

(vi) Count 12, which alleged that the applicant incited JG, a person then under the age of 16 years, to commit an act of indecency with TRM, whilst JG was under the applicant's authority contrary to s 61O(1) of the Crimes Act.

3. In that judgment, the trial judge found the applicant not guilty of five counts, namely one count of incite an act of indecency (against JG, when he was under the age of 10 years); two counts of sexual intercourse with a child (JG) under 16 years; one count of sexual intercourse with a child (JG) under 16 years and one count of indecent assault against a child under 16 years (JG).

4. The applicant was sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years. The non-parole period will expire on 21 April 2023. The full term will expire on 21 April 2026.

5. The applicant seeks leave to appeal against his convictions on one ground, namely that his convictions were unreasonable. Leave is required because this ground does not raise a question of law alone.

Background

The Crown case

6. The applicant commenced a relationship with ES in 1995 and married her in 1996. At the time of the relationship, ES had two sons, the complainants JS and JG, who were born in 1992 and 1995 respectively. In January 1997, shortly after their marriage, ES gave birth to the complainant, DH, and his twin brother. ES and the applicant separated in December 1998. Following the separation, each of JS, JG and DH continued to stay with the applicant pursuant to shared custody arrangements. The fourth complainant, TRM, was a friend of JG.

Count 1 – Incite JG to perform an act of indecency (not guilty)

7. Count 1 concerned the first incident that JG could remember of an event of a sexual nature with the applicant. JG said that the applicant had taken him and his brother JS fishing at a beach and that while they were lying in the sand, the applicant made the brothers put their hands on each other and move their hands up and down (MFI 5 at Q/A 244-269). (MFI 5 was the transcript of a DVD recording of the interview with JG, of 27 May 2010.)

8. JG described the beach as “near a bridge”. Although JG recalled the incident as occurring at a time when he must have been five years old, he said that it occurred when his mother and the applicant were still together. The applicant and ES separated on Boxing Day 1998. JG was three years old when that occurred.

9. JS did not recall this incident, although he recalled a similar incident that occurred by a riverbank which was the subject of Counts 5 and 6 (of which the applicant was found guilty).

Count 2 – Incite JS to perform act of indecency (guilty)

10. Count 2 concerned the first occasion that JS could remember an event of a sexual nature with the applicant. It was alleged that this offence occurred between 5 February 1998 and 26 December 1998 while the applicant was living in XXXX Street, Cessnock with ES, JS and the other children.

11. JS gave evidence that at approximately midday, ES went out shopping leaving the applicant and JS at home. JS recalled that JG and possibly his younger twin siblings were also at home. JS was in the lounge room. The applicant called JS into his bedroom and told him to get onto the bed. The applicant drew the curtains and got onto the bed with JS.

12. The applicant told JS to “play with it”. JS placed his hand on the applicant’s penis. The applicant told JS to “move it up and down, make it hard”. JS complied and the applicant’s penis became erect but he did not ejaculate (Count 2) (T.260.45-261.25). The applicant told JS to stop when a car arrived a few minutes later. The applicant said “Don’t tell mum about this, it’s our secret".

13. JS could not recall exactly when the incident occurred, but thought that he was about seven or eight years old. At the time that the applicant was living in XXXX Street, JS was approximately six years old.

Counts 3 and 4 – Incite JS to perform an act of indecency and indecent assault of JS (guilty)

14. Counts 3 and 4 occurred on an occasion when the applicant was living in a shed on a property on XXXX Road. The applicant moved into the shed sometime after he separated from ES (on 26 December 1998) and lived there until September 1999.

15. ES drove JS to the applicant’s shed, where he was living after their separation. The applicant told JS to get onto the bed. The applicant also got onto the bed. The applicant removed his pants and told JS to “play with it and make it hard”. JS put his hand on the applicant’s penis and moved it up and down (Count 3). The applicant then pulled JS’s pants down and played with his penis, “pulling it up and down” (Count 4). The applicant did not ejaculate (T.263.9-264.2).

16. The applicant then told JS to stop as his mother would soon be there. The applicant said to JS “Don’t tell her about this, it’s still our secret”. JS was approximately seven years old at this time.

Counts 5 and 6 – Incite JS to perform act of indecency and indecent assault of JS (guilty)

17. Counts 5 and 6 were alleged to have occurred on an occasion when the applicant was living in XXXX Street, Cessnock. The applicant lived at this address from 17 July 2003 to 7 June 2006. At this time, JS attended the applicant’s home for access visits every second weekend and for half of the school holidays.

18. On one occasion, the applicant took JS and JG fishing. They drove for roughly two hours and then walked for about twenty minutes to a riverbank, where they found a spot on the sand to stop and fish. JS recalled that there were trees either side of the riverbank and a large concrete overhead car bridge nearby. The concrete bridge had five pylons.

19. The applicant told JS and JG to pull down their pants and to “make it hard”. JS and JG complied, and both pulled down their pants and masturbated (Count 5). The applicant then masturbated JS and JG one at a time, pulling their penises back and forth with his hands (Count 6, with respect to JS) (T.267.31-269.6) JS said that this made him feel uncomfortable and awkward.

20. JS was aged between 11 and 14 years at the time.

JS context evidence

21. JS gave context evidence of an occasion when the applicant was living in the shed (i.e. in 1999) when the applicant showed him a pornographic movie depicting sexual activity on a beach with a jeep. They watched the movie for about ten minutes. JS said that he could see that the applicant had an erection through his pants.

Count 7 – Indecent assault of DH (guilty)

22. Count 7 was alleged to have occurred between July 2003 and July 2005, on an occasion when DH was staying the night at the applicant's home.

23. DH gave evidence that early in the morning, he got up to use the toilet. It was still dark outside. On DH’s way back from the toilet, the applicant grabbed him by the arm and dragged him into the lounge room. The applicant was only wearing a towel at this time.

24. The applicant pulled down DH’s pants. He then persuaded DH to sit on the lounge. The applicant sat down beside DH, grabbed DH’s penis and began to masturbate it (Count 7). This continued for about four minutes. DH was frightened. The applicant sternly told DH not to tell his mother what had happened. DH was six or seven years old at this time (T.225.45-229.5).

25. In cross-examination, DH agreed that when he made a statement to police, he estimated that the masturbation took some 15 minutes. DH explained that he was “just trying to get it off [his] chest” and that he was “trying to remember all the details that [he] could at that moment”. DH said that he told the applicant to stop, that it was “kind of a fright moment”. He said that he might have whispered it, and that he might have said it out loud (T.238.4-240.8).

Counts 8 and 9 – Sexual intercourse with JG (not guilty)

26. Count 9 was in the alternative to Count 8. These counts allegedly occurred on an occasion between May 2008 and February 2010, when JG was staying with the applicant in accordance with a custody arrangement.

27. JG gave evidence that the applicant dragged him by the arm from the lounge room to the bedroom. JG stated that the applicant made JG “suck him off” and that he then told JG to bend over. JG said “no”, but did comply. The applicant then inserted an object into JG's anus. The object felt “cold”, “weird” and was “really painful”. JG believed that the object was a butter knife. JG started crying. The applicant yelled at JG and told him to go to bed.

28. When JG awoke the next morning, his anus felt very painful. JG went to a park and to a toilet where he saw blood after defecating. JG was aged between 13 and 15 years at this time.

29. In his evidence in chief, JG said that he walked out of the room crying. However, JG agreed that in his March 2014 statement to police, he said that the applicant struck him on the back of his head after removing the knife, and that he was knocked unconscious by the blow (MFI 7; T.57.6 (JG)) (MFI 7 was a copy of a statement of JG dated 18 March 2014.)

Counts 10 and 11 – Indecent assault of JG and sexual intercourse with JG (not guilty)

30. Counts 10 and 11 allegedly occurred on a Saturday night between 1 January 2010 and 10 February 2010, when JG was staying with the applicant in his home in XXXX Avenue.

31. JG was sitting on a mat in the lounge room watching the television show “The Simpsons”. The applicant told JG “suck me”. When JG refused to do so, the applicant threatened to hit him.

32. JG said that the applicant grabbed his arm and dragged him to his [the applicant’s] bedroom. The applicant told JG to lie on the bed. JG refused to do so. The applicant pulled down JG’s pants and masturbated him, pulling JG’s penis hard (Count 10). JG reluctantly agreed to fellate the applicant to stop him from squeezing his penis. The applicant then pulled down his boxer shorts, grabbed JG’s hair and forced JG's mouth onto and then up and down his penis until he ejaculated (Count 11). The incident came to an end when the applicant ejaculated into JG’s mouth. JG then went to the toilet and vomited.

33. JG was approximately 15 years old at this time.

Count 12 – Incite JG to perform act of indecency (guilty)

34. The applicant had a stall at an expo at a showground. JG and his friend, TRM, accompanied the applicant to the expo. They camped together in a tent.

35. The applicant asked JG and TRM if they were going to “fool around” and “touch each other”. The applicant said “come on do you want to do it”. Both JG and TRM said “no”. The applicant said “come on, lets, it won't be long”. JG recalled that he and TRM then went to sleep. TRM recalled that they did “fool around” to “cool the situation so as to stop [the applicant] from asking”. TRM felt “disturbed and uncomfortable”.

36. It was the Crown case that the applicant intended, and both boys understood, that JG should engage in sexual activity with TRM in the applicant’s presence (Count 12). At the time of this event, JG was 15 years old and TRM was 16 years old.

37. Both JG and TRM gave evidence about this incident.

TRM tendency evidence

38. TRM described attending the applicant’s home for a sleepover with JG in 2009 or 2010. TRM said that the applicant caught him and JG being “intimate” with each other. TRM said that the following day the applicant said words to the effect “I know what’s happened with you and JG. If you want to keep being friends with my son I want in”. In cross-examination TRM agreed that the applicant told them not to do that again and that he appeared to be a concerned parent.

39. TRM also gave evidence that on another occasion, when he was at a sleepover at the applicant’s house, the applicant asked him and JG to come to his room. The applicant asked them whether they had ever watched porn and touched themselves. The applicant said words to the effect “I’m getting hard from this. Do you want to see?”. TRM said that JG said “No, because you’re my dad”. TRM said that he could see the applicant’s erection through his underwear at the time. TRM said that the applicant had lent back to remove his large stomach away from his genital area. TRM said that the applicant told them that they could go but that the next morning the applicant said to the boys “I pleasured myself to climax, the thought of us three doing stuff”.

The defence case

40. The defence case was that the complainants’ evidence had been concocted and should not be believed. So far as the evidence of JG, JS and TRM was concerned, the applicant submitted that their description of the applicant’s genitals was so different to the reality that this damaged their credibility, not only in relation to the specific counts, but generally. It was submitted that DH had different credibility problems.

41. The applicant did not give an Electronically Recorded Interview with a Suspect Person (ERISP), nor did he give evidence at trial.

42. The applicant submitted that although the sequences involving JG were ultimately rejected by the trial judge (with the exception of Count 12), his evidence was important because it was consistent with the type of misdescription of the applicant’s genitals given by both JS and TRM. The applicant submitted that JG’s evidence also formed part of the whole of the evidence of the trial and had to be considered. The defence approach at trial was to show deficiencies in the credibility of the complainants.

43. JG told the Crown in conference on 14 April 2018 that “I used to have a look at his penis all the time. He was always making me suck him off and wank him off or play around with him”. He was asked:

“Q. Is there anything you noticed about his penis, apart from the bleeding, that was unusual to you at the time [being after 2004]?

A. No”.

44. At trial, the applicant submitted that in order to understand the basis for his submissions concerning the credibility of the complainants JG, JS and TRM, the Court had to consider the evidence of the applicant’s first wife, ES, and Dr Robert Wines, urologist.

45. ES was the biological mother of all of the complainants except TRM. ES gave evidence concerning her statement to police as follows:

“I would describe his penis [the applicant’s] as being an “inny” because when he was not erect his penis was not visible at all. His penis retracted inside of his groin area. His penis would come out and was visible when erect. When erect his penis was approximately 2 to 3 inches long.” (T.212.5)

46. The effect of the evidence of Dr Wines was that the applicant’s penis was not visible externally when flaccid and only became visible externally while erect. The applicant had retained Dr Wines to prepare a report for trial concerning his genitals and the various issues concerning them. Dr Wines examined the applicant in April 2018 and took photographs of his genital area which became Exhibits L and M in the trial.

47. ES confirmed that the photograph, Exhibit L, was consistent with her recollection of the applicant’s genitals during her relationship with him. She said Exhibit M was slightly different in that it depicted a fully circumcised penis with blood on the tip and the fat around the penis was “tighter” than she recalled. The applicant had undergone a “dorsal slit” (a form of circumcision), a vasectomy and an orchidectomy in 2004.

48. In addition to the photographs of the applicant’s penis taken in April 2018, Dr Wines prepared two reports which were Exhibits V and W. Dr Wines referred at p2 of Exhibit V to the applicant’s anatomical situation of “the penis retracting into pre-pubic fat” and under the heading “Examination” at p2, he said:

“The penis is retracted several centimetres into the pre pubic fat pad and is not visible but could be manipulated to expose the glands”.

49. Dr Wines was not cross-examined and there was no suggestion by the Crown that his reports or photographs were inaccurate.

50. There were other matters in an Agreed Statement of Facts. Following the break up of his marriage to ES, the applicant commenced a relationship with MH in 2000 and married her in April 2001. Their first daughter, SH, was born in June 2001. Their second daughter, PH, was born on 19 December 2003. In mid 2004 the applicant underwent the series of operations described above.

Complaint evidence

JG

51. JG first complained to his mother’s then partner’s son, GF, in May 2010. JG told GF that the applicant had forced him to touch him and that the applicant had “f…ed” him. JG also told GF that JG’s brother had been harmed sexually as well. GF gave evidence that during this conversation, JG was in an emotional state, and was “upset and frustrated”.

51. GF went straight to the complainant’s mother, ES, and told her that she needed to speak to JG. ES spoke to JG the following morning. ES said that JG was upset and crying. Arrangements were made for JG to make a report to the Joint Investigation Response Team (JIRT) office at Cardiff. After making a statement to JIRT, JG became more settled (he had previously been an aggressive and very angry child). ES said that she did not tell the other boys about the complaint made by JG.

52. JG explained that he had not complained earlier because he was scared of the applicant and was embarrassed. He said that he did not know who he could talk to at the time. While he had a good relationship with his mother, JG said that he found it difficult to tell her everything that had happened to him.

53. Police interviewed TRM and JS in 2010. At that time, neither corroborated JG’s account and no charges were laid against the applicant, although an Apprehended Violence Order (AVO) was taken out against him by the police.

54. JG was re-interviewed in 2014 following the making of complaints by DH and JS. JG stated that after the applicant’s operation when he had a testicle removed, he noticed that his penis would sometimes bleed, including when the applicant forced JG to fellate him. JG acknowledged that he had not mentioned the applicant’s penis bleeding until he met with the DPP Solicitor in conference two weeks before the trial began.

55. JG said that he did not mention the incident with the knife in his first interview because he was “embarrassed about talking about it” and was scared. JG said that he had difficulty remembering details of particular incidents and that he could not remember how many times sexual things between himself and the applicant occurred. JG said that he had been hospitalised with PTSD and depression and that he had found it confronting when he was asked to describe the applicant’s penis in his interview with police.

56. JG said that he had not discussed the allegations with his siblings. He said that he and his family “really don’t talk so much any more”. JG denied the suggestion in cross-examination that he had sought to have JS, DH and TRM make allegations against the applicant.

JS

58. JS first made a statement to police on 12 September 2013 when police came to his home. JS said that this was the first time that he had disclosed in any detail what had happened to him. JS explained that he had not complained when he was young because he did not know that what the applicant had done was wrong and because the applicant told him that it was a “secret”. Later, as JS got older, he was afraid to complain. JS said that he dealt with his memories about the incident by trying to “block them out” and not think about them.

59. JS said that he found out that JG participated in an interview with police in mid 2010. JS said that he thought that his mother had asked him whether he wanted to speak to the detectives as well. JS said that he told his mother that “something happened” but that he did not go into any detail. JS was aware that an AVO was taken out with respect to the applicant after JG’s disclosure.

60. JS maintained in his evidence that he had not discussed the details of the allegations with anyone other than the police. He denied that JG had prevailed upon him to fabricate his account.

DH

61. DH said that he first disclosed the incident, the subject of Count 7, to his aunt TH in 2012 or 2013 when he lived with his “nan” and his aunt in XXXX. DH said that he told TH that when he was younger an incident happened when the applicant touched him and that he could not mentally handle it anymore and that he wanted to “get it off his chest”. He said that TH told him to tell his mother and police.

62. In a statement dated 12 April 2017, TH said that DH had told her that he did not like to go fishing with the applicant and that the applicant used to belt him a lot. She said that she did not recall DH saying anything specific about sexual offences.

63. ES gave evidence that TH had telephoned her around December 2012 and that as a consequence of that call, she then called DH. DH said that he did not want to speak with her but that he would speak to a family friend, KY. After DH spoke to KY, DH recounted the applicant’s sexual abuse to ES. ES said that DH was “very raw, very angry, very upset” (T.195.10). DH told ES that he wanted to kill himself.

64. ES took DH to Cessnock Police Station where he made a statement to police. ES gave evidence that DH had begun objecting to going to the applicant’s home from around 2006 but that he had not given any reasons for not wishing to do so. DH explained that he had not reported the applicant’s conduct earlier because he was scared and because the applicant had threatened violence to his mother.

65. DH maintained that he had not spoken to his siblings about the abuse. He said that all that was said between himself and JS was that they had “gone through similar stuff”. DH gave evidence that he had not been told that a previous sexual abuse allegation had been made against the applicant in 2010. DH said that he was only told that the applicant had done “something bad”.

TRM

66. TRM was questioned by police in 2010. When questioned by Detective Pack on the phone, TRM denied that the applicant had propositioned him and JG for sex. Detective Pack gave evidence that TRM’s father had answered the phone and that TRM’s father had interjected while he was speaking to TRM. TRM gave evidence that the conversation occurred on the phone’s loud speaker. The detective attended TRM’s school on 10 June 2010 with a JIRT officer. After this further conversation, the detective suspended the investigation.

67. TRM explained that he did not tell police about what had happened when he was asked in 2010 because he was worried about getting into trouble with his father, who was a “heavily Roman Catholic” man. TRM also explained that he did not tell his parents because he wanted “to keep the peace in the house”. He said that he “never wanted [his parents] to worry about [him]” and that he “didn’t want them knowing that I’ve been touched” (T.169).

68. TRM denied the suggestion in cross-examination that JG had requested him to make up stories about the applicant in furtherance of JG’s allegations. In a statement to police, dated 19 February 2016, TRM said that he had not kept in regular contact with JG since finishing school and that they had rarely made contact with each other and only exchanged occasional texts. TRM said that he and JG had never discussed what had happened between them.

Description of the applicant’s genitalia

69. An important issue in the appeal is the applicant’s submission that the complainants’ descriptions of his genitals were inconsistent with the unchallenged evidence of ES and Dr Wines as to their unusual features.

The complainants’ descriptions

70. JS described having seen the applicant’s penis on a number of occasions.

71. In respect of Count 2, JS stated that the applicant had laid down on the bed next to him. The applicant had no clothes on. The evidence of JS was:

“…

A. The curtains were closed, so it was a dark room.

Q. Right, but outside it was daylight?

A. I’m assuming so, yes.

Q. Was the light on in the room?

A. The light on in the room?

Q. Can you remember?

A. No, it wasn't.

Q. Okay. But you go on to say that “he took his shorts and underwear off and I could see his penis, it was not erect”. You see that?

A. Yes.

Q. So certainly the light was good enough for you to see his flaccid penis?

A. Yes, through the curtain--

Q. Sorry?

A. The light coming through the curtains.

Q. Yes, yes. And you understand when I say flaccid I mean soft or not erect?

A. Yes.

Q. Now would you say that you had a good view of his penis?

A. No I was laying down.

Q. Right. But you were lying right there next to one another?

A. Yes.

Q. But you specifically say that you could see his penis?

A. Yes.

Q. And there’s no doubt about that in your mind?

A. No.

Q. And also no doubt when you say it was not erect?

A. Yes.” (T.282.1)

72. Count 3 also involved an incident when the applicant was lying on a bed next to JS. JS said that the applicant pulled his pants down, exposing his penis. The evidence of JS on this issue was:

“Q. And you say “At some point while I was reading dad came over and laid down on the bed next to me, he was lying on the left side above the bedding facing me. I was sitting”. You see that?

A. Yeah.

Q. And you said “Dad said ‘lie down’,” and you said “I lied down on my back. I don’t recall what dad or I were wearing but dad pulled his pants down exposing his penis, it was not erect”. You see that?

A. Yes.

Q. Now again what was the light like in the shed …?

A. There was a light inside the shed so it was quite bright.

Q. Quite bright in the shed, so that’s different to the situation in the bedroom on the first incident?

A. Yes.

Q. A bit dull in there but in the shed it was quite bright?

A. Yeah it was a well-lit shed like, the rooms we were currently in.

Q. Okay. So because it was quite bright, correct me if I’m wrong, but you would’ve had no doubt seen in quite good detail his penis on that occasion and that it was not erect?

A. Yes.

Q. How close would you have been to his penis when you made that observation? How close would your eyes have been to it for example?

A. I’d say they’d be around his chest height.

Q. Okay. So would that - correct me if I’m wrong - I’m not trying to put words in your mouth of course - but would that be about two feet away, or two and a half feet away?

A. Yeah.

Q. Or three feet? You tell me?

A. About two feet away so--

Q. Two feet away--

A. --chest, down to pelvis area.

Q. Okay. And do you say to the Court did you that you had no difficulty seeing his flaccid penis?

A. Yes.

Q. And you understand again -- just so we’re absolutely sure -- you understand that flaccid means soft, not erect?

A. Yes.

Q. Okay. And you say that your dad said “play with it, make it hard”. You said “I grabbed his penis with one hand and I moved my hand up and down on his penis masturbating him”. …” (T.284.31-285.30)

73. JS also gave context evidence in respect of an uncharged incident in which he said that the applicant showed him pornography in the shed. JS said that the applicant was clothed but that he did notice that the applicant had an erection because there was a “rather large bulge” protruding from the applicant’s pants when he was walking to and from the television set (T.287.18).

74. JS gave evidence that the applicant had walked around naked when he (JS) was staying at his house and that he saw the applicant’s penis and testicles on these occasions:

“Q. Now are you saying that virtually every time you were over there, your father would be walking around naked?

A. In the morning.

Q. Now J, that’s simply untrue, isn’t it?

A. In the morning it was.

Q. It’s untrue, even in the morning?

A. No.

Q. That’s completely false?

A. No, he would walk around in the morning naked, but then he would get dressed and be clothed for the rest of the day.” (T.293.14)

75. JS said that the applicant had only one testicle. Apart from that, JS did not recall anything unusual about the applicant’s genitals. He said that there were no other defining features.

“Q. So no moles that you saw, no birth marks?

A. Not that I can recall.

Q. Fair to say nothing unusual, just pretty--

A. Just the one missing testicle.

Q. Pretty ordinary male genitals?

A. Yes.” (T.294.30)

76. JG gave evidence that the applicant’s penis extended five to six inches from his body when erect. When the witness was asked to demonstrate with his fingers how long this was, the witness showed a distance which the trial judge estimated at ten to twelve centimetres, i.e. four to five inches.

77. TRM gave evidence that he had only ever seen the applicant’s genitals when clothed with underwear. He said that the applicant “never showed it at all but it was a clear, somewhat clear outline and it was an average, it looked like an average length penis” (T.159.46). TRM said that by “average length penis” he meant five to six inches. TRM explained that the applicant was “definitely somewhat aroused” at that point.

The evidence of ES and MH

78. ES gave evidence of her observations of the applicant’s genitalia during the course of their relationship (1996-1998). It was her evidence that:

1. The applicant experienced no difficulties achieving an erection or ejaculation during this period.

2. The applicant did not complain of pain during sexual intercourse.

3. The applicant’s penis did not bleed when she was in a relationship with him.

4. The applicant’s penis was an “inny”, i.e. when not erect, the penis retracted inside the applicant and was not visible.

5. The applicant’s foreskin came up to a point that was half way up the head of the penis.

79. MH provided an account regarding her observations of the applicant’s genitalia during the period of their relationship (2000 - 2006). That account formed part of the Agreed Statement of Facts which stated:

1. In mid 2004 the applicant underwent a series of operations, including a vasectomy and the removal of his right testicle, and a further circumcision (the applicant had previously had a circumcision when he was an infant).

2. Before the circumcision operation, the applicant began to experience difficulties with the tightening of his foreskin which could be painful. He could not always get erections, but sometimes he could.

3. After the circumcision operation, the applicant’s penis skin would split and bleed near the head of his penis when he had an erection.

4. Following their separation in 2006, MH and the applicant had sexual intercourse on a couple of occasions each year. On these occasions, the skin of the applicant’s penis was bleeding.

The expert evidence

80. Reference has already been made to the evidence of Dr Wines and the two reports which he provided. On examination of the applicant in April 2018, Dr Wines noted that the applicant’s penis was retracted several centimetres into the pre-pubic fat pad and was not visible but that it could be manipulated to expose the glands.

81. Dr Wines observed that the glands bled on retraction and that when exposed, the glands and skin showed inflammatory changes compatible with ongoing balanitis (swelling of the head of the penis). Dr Wines was of the opinion that this condition would have been ongoing since the circumcision procedure in 2004 and that it would account for continuing pain and bleeding with masturbation and intercourse subsequent to that date. In his second report, Dr Wines explained that the applicant had been requested to attempt masturbation to obtain an erection but that his attempt was unsuccessful.

The judgment

82. In a 74 page judgment, the trial judge set out relevant directions of law, the elements of the offences and his reasoning in respect of each of the alleged offences. No complaint is made by the applicant in respect of the legal directions given or the elements of the offences.

83. A summary of the trial judge’s findings in respect of the appearance of the applicant’s genitals and his Honour’s findings as to credit, and in respect of the offences, is set out below.

Findings in respect of the appearance of the applicant’s genitals

84. In respect of the length and visibility of the applicant’s penis, the trial judge concluded:

“This evidence as a whole establishes the accused’s penis was not visible unless erect and then approximately 2 to 3 inches (5 to 7.5cm) in length at relevant times. However, this evidence does not indicate whether the position of the accused’s body affected the visibility of his penis at other times.” (Judgment 55.3)

85. In respect of the applicant’s ability to achieve an erection, the trial judge held that:

“This evidence as a whole does not establish that the [applicant] could not achieve an erection at any relevant time but establishes merely that sometimes he had difficulty doing so.” (Judgment 55.6)

86. In making this finding, the trial judge noted that Dr Wines’ report did not establish that the applicant was incapable of achieving an erection but merely that he did not do so when requested to masturbate in the doctor’s rooms in April 2018. His Honour also noted that the applicant had been able to achieve an erection during his relationship with ES, which ended in December 1998, and that the applicant continued to father children until 2003. His Honour found that while the applicant began to experience difficulties achieving erections before the 2004 surgery, he continued to be able to do so and to have sexual intercourse with MH from mid 2006 until early 2010.

87. With respect to the issue of bleeding, the trial judge concluded that the “evidence as a whole establishes the [applicant’s] penis bled when he engaged in sexual activity following the 2004 surgery but not before”. The trial judge further found that:

“[The] evidence as a whole establishes that the [applicant’s] condition caused him pain when he engaged in sexual activity or had an erection following the 2004 surgery but not that it did so before. The evidence is unclear as to the extent of pain, the accused experienced with an erection following the 2004 surgery”. (Judgment 56.9)

Findings as to credit and in respect of the counts on the indictment

88. In respect of JG, the trial judge made the following findings:

“I observed JG closely as he gave his evidence. I formed the clear impression he was being honest in giving his evidence throughout. I had no doubt, based on JG’s demeanour in giving evidence, that he had a genuine recollection of the incidents he recounted. I noted he gave his evidence in an intense but unguarded manner. I noted no indication he was being disingenuous, such as evasiveness or unwillingness to make appropriate concessions in his evidence.” (Judgment 57.9-58.1)

89. The trial judge rejected the contention that JG’s delay in complaint affected the credibility of his evidence. The trial judge found that the delay was explicable for reasons including JG’s age at the time of the impugned behaviour and the context of the history of the conduct of the applicant towards him.

90. Although the trial judge found that JG genuinely recalled the incident that was the subject of Count 1, the inconsistency in his evidence as to the timing of this incident was “significant”. In particular, the trial judge referred to JG’s evidence that he recalled that he was aged five years at the time but that JG also recalled that this incident occurred when he was still living with ES. This ceased when JG was three years old.

91. The trial judge also noted that JS did not recall any such incident, other than that which was the subject of Counts 5 and 6, which occurred when JG was approximately 11 years old. Because of these inconsistencies, the trial judge was not satisfied beyond reasonable doubt “that the incident occurred at the time it is alleged to have occurred”. Accordingly, the trial judge found the applicant not guilty in respect of Count 1.

92. In respect of Counts 8 and 9, which related to the occasion when the applicant allegedly assaulted JG with a butterknife, the trial judge noted that JG had not included an account of this event in his first report to police. The trial judge did not accept that JG had fabricated this allegation to “up the ante”, having regard to JG’s demeanour in giving evidence. However, the trial judge did not accept the Crown’s submission that JG may have been unable to recall this incident when first interviewed in 2010. This was because of the memorable nature of the assault. His Honour found:

“… while I have no doubt JG honestly recalled such an incident, the extent of the inconsistencies I have identified above is such as to give rise to doubts about the reliability of JG’s evidence about it, such that I cannot be satisfied beyond reasonable doubt that it occurred as alleged.” (Judgment 61.5)

93. In relation to Count 8, his Honour identified inconsistencies in the evidence relating to whether JG was aged 14 or less at the time. In those circumstances, he was not able to find beyond reasonable doubt that the Crown had made out the age requirement necessary for a conviction under Count 8.

93. Accordingly, the trial judge found the applicant not guilty in respect of Counts 8 and 9.

94. In respect of Counts 10 and 11, the trial judge found that JG’s account was consistent with a genuine recollection of the incident. His Honour did not consider that the inconsistency between JG’s account of the penis as five to six inches in length and other evidence that it was two to three inches in length gave rise to a doubt as to JG’s reliability, particularly given JG’s age at the time.

95. However, his Honour was troubled by the evidence that at the time of this alleged incident, the applicant’s penis would bleed when erect and that JG made no reference to such bleeding when he was first interviewed by police in May 2010 (albeit that JG did subsequently make reference to such bleeding when interviewed by the DPP trial advocate and solicitor before the trial).

96. His Honour found that the absence of any reference to the applicant’s penis bleeding in the first interview was “such as to give rise to doubt about the reliability of JG’s account of the incident” (Judgment 62.6).

97. The trial judge accordingly found the applicant not guilty of Counts 10 and 11.

98. In respect of JS, the trial judge stated:

“I observed JS closely as he gave his evidence and I formed the impression he was being truthful. I did not doubt, on the basis of JS’s demeanour in giving evidence, that he honestly recalled the incidents he recounted. I did not note any indication he was being disingenuous in giving his evidence, such as evasiveness or unwillingness to make appropriate concessions.”

100. The trial judge found JS to be a reliable witness and rejected the applicant’s contention that he had a motive to lie (Judgment 65.5).

101. As with JG, the trial judge rejected the submission that JS’s delay in complaint adversely affected his credibility. The trial judge accepted that JS’s failure to disclose the allegations to Detective Pack was explicable for the reasons which JS gave. These included his age and that the applicant had told him not to tell anyone about his [the applicant’s] conduct.

102. The trial judge rejected the submission that the evidence of JS was inconsistent with other observations of the applicant’s penis, noting that the evidence regarding the position of the applicant’s body at the time of Counts 2 and 3 was unclear and further that “as a matter of common sense and experience, the state of a penis need not be viewed in a binary fashion as falling into the alternatives of flaccid or erect. The evidence does not make clear at what point in the process from flaccid to erect the [applicant’s] penis became visible as at the time of these events” (Judgment 66.9).

103. The trial judge did not agree with the applicant’s submission that the action involved in masturbation was inconsistent with the length of the applicant’s penis. Accordingly, the trial judge had no reasonable doubt regarding the facts concerning the incidents described by JS and found the applicant guilty of Counts 2, 3, 4, 5 and 6.

104. The trial judge made the following additional observations in relation to JS:

“JS’s recollection of his age at the time of the incident is explicable given he was now an adult recalling events that occurred when he was a child and many, many years ago. JS’s recollection of his age at the time is not such as to give rise to significant doubt regarding the reliability of his account of the incident.

Any inconsistency between JS’s account in evidence regarding the action involved in masturbation of the penis once erect and other evidence in the trial regarding its length does not give rise to significant doubt regarding the reliability of his account given that he was recalling events that occurred when he was a child and many years ago.

The suggestion that JS’s account of his observations of the accused’s penis when not erect is inconsistent with other evidence regarding the visibility of the accused’s penis when not erect is again of some significance, however, as with count 2, the evidence is unclear as to the position of the accused’s body at the time and whether it affected visibility of the penis. Further, the evidence as to the condition of the accused’s penis between the extremes of flaccid and erect states is unclear.

The evidence does not give rise to significant doubt regarding the reliability of JS’s account of the incident.

JS’s recollection of the words of the accused was clear. The effect of those words was an unequivocal encouragement to engage in sexual activity with the accused. The accused must have intended the effect of those words would be that JS would masturbate him. Encouragement of JS to masturbate the accused was contrary to community standards of decency.

It follows that I have no reasonable doubt regarding the facts constituting the elements of the offence of count 4.

The evidence of JS in respect of the accused’s masturbation of JS’s penis comprised no apparent significant inconsistency or element of implausibility. No reason is apparent to doubt the reliability of JS’s account in respect of his allegation that the accused masturbated his penis. The accused’s act of masturbation of JS’s penis was contrary to ordinary standards of respectable people in the community.

It follows that I have no reasonable doubt regarding the facts constituting the elements of the offence the subject of count 4.” (Judgment 68-69)

105. In respect of DH, the trial judge made the following finding:

“I observed DH closely as he gave his evidence. I formed the impression he was being honest in giving his evidence. I did not note any sign he was disingenuous in giving his evidence such as evasiveness or unwillingness to make appropriate concessions. On the contrary, DH made concessions against his apparent or perceived interests. That tended to confirm his honesty.” (Judgment 71.3)

106. The trial judge rejected the applicant’s contention that DH had a motive to lie and also rejected the suggestion that DH’s evidence was the subject of contamination or reconstruction as a result of his exposure to the AVO served following the disclosure of JG’s allegations. The trial judge found that DH’s acknowledged dislike of his father was consistent with his experience of the applicant’s alleged conduct and physical discipline.

107. The trial judge found that DH’s delay in complaint did not cause him to doubt DH’s credibility, noting that DH’s failure to disclose the allegations at an earlier point in time is explicable for reasons that include DH’s age at the time of the events and his fear of the applicant. The trial judge considered that the inconsistency between the evidence of TH and DH in respect of complaint did not cause doubt, given that there was other evidence of complaint made by DH at or about that time (i.e. to ES).

108. The trial judge found that he had no reasonable doubt concerning the facts that constituted Count 7.

109. In respect of the tendency evidence of TRM, the trial judge observed that TRM had made a number of concessions in cross-examination in respect of incidents that were not the subject of any count. His Honour considered that the effect of these concessions was to “give rise to some doubt regarding whether the relevant acts of the accused were intentional and whether relevant acts and words of the accused in the incidents demonstrate sexual interest in boys” (Judgment 57.6).

110. While his Honour was satisfied as to TRM’s truthfulness, his Honour found that the concessions were such that he could not be satisfied beyond reasonable doubt that the words and conduct of the applicant in those incidents demonstrate that the applicant had a tendency to engage in sexual activity with boys in his care, or to have a sexual interest in boys.

111. In respect of Count 12, the trial judge noted that JG’s account in his interview was given when the incident was recent and that the extent of the detail given was consistent with the incident having recently occurred. The trial judge found that TRM’s account also included detail consistent with a genuine recollection of the incident.

112. The trial judge accepted that TRM’s failure to disclose the incident when initially questioned by police was “explicable for the reasons he gave including his fear of his parents’ reaction” (Judgment 62.9-63.1).

113. The trial judge noted that there were some inconsistencies between JG’s account and TRM’s account (in particular the precise words used and whether JG and TRM did in fact engage in any sexual activity in response to the applicant’s words). The trial judge did not consider either of these matters to give rise to a reasonable doubt. The trial judge’s conclusion was:

“Doubts regarding reliability of JG’s evidence in respect of other counts arise from its accuracy rather than its honesty. TRM’s account in respect of the incident is reliable, both [with] respect to its accuracy and its honesty. In so far as inconsistencies arise between the recollections of TRM and JG, I accept TRM’s evidence.” (Judgment 64.3)

114. Accordingly, the trial judge found that he was satisfied beyond reasonable doubt of the facts constituting the alleged offence, the subject of Count 12.

Relevant principles

115. When considering whether a verdict is unreasonable, the court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for this Court is “whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35.

116. The same principles apply when the appeal is from the verdict of a judge alone: Filippou v The Queen (2015) 256 CLR 47 at [12]; [2015] HCA 29. There the plurality (French CJ, Bell, Keane and Nettle JJ) said:

“6 Section 133 of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, "finding" means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt.

…

8 Section 6(1) of the Criminal Appeal Act provides in effect that the Court of Criminal Appeal shall allow an appeal against conviction if:

(1)   the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(2)   where the judgment of the court of trial is wrong by reason of wrong decision of a question of law; or

(3)   for any other ground there has been a miscarriage of justice,

provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

9   As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge's finding of guilt is "unreasonable" or "cannot be supported". …

10   In Fleming, the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. For the purposes of this appeal, it is necessary to answer that question.

11 Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt "for all purposes". It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.

12 Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:

“It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... 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 [judge], 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.”

117. Later the plurality said:

“56   Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was "satisfied that the judge's account was correct" but whether her Honour's findings as to the sequence of events were not reasonably open. And, plainly, they were open. …”

118. In answering the question whether upon the whole of the evidence it was open to the [judge] to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the [judge] is the body entrusted with the primary responsibility of determining guilt or the consideration that the [judge] has had the benefit of having seen and heard the witnesses.

Consideration

119. Annexed to this judgment is a copy of the chronology prepared by the Crown for the appeal. I do not understand any of the contents of that chronology to be controversial. It does, however, provide a useful guide to the sequence of events.

120. The trial judge correctly directed himself as to issues of law and carefully considered all of the evidence in the trial. The trial judge had the benefit of hearing and seeing each of the witnesses give evidence. For the reasons outlined below, there is no error in the trial judge’s assessment of the credibility and reliability of those witnesses. It should be noted that at the conclusion of the trial, written submissions were submitted by the parties. There was no oral argument.

121. Having found each of JS, TRM and DH to be honest and reliable witnesses, and accepting the evidence of each as to the allegations made, it was well open to the trial judge to find the allegation proved beyond reasonable doubt. As the trial judge found, there was no evidence that the complainants had colluded. That proposition was firmly denied and in the absence of any positive evidence to the contrary it was well open to the trial judge to reject the applicant’s submission that each of the complainants had fabricated the allegations. Put another way, if there had been any collusion between the complainants it was rather sloppy and careless in that there was little corroboration between them. For example, JS could not remember the incident described by JG which gave rise to Count 1.

122. The applicant’s attack on the guilty verdicts for Counts 2, 3, 4, 5 and 6 involving JS is that:

1. the circumstances in which the complaint was made by JS should give rise to a reasonable doubt that the offences occurred; and

2. there is an inconsistency between the evidence of JS in respect of the appearance of the applicant’s penis and other evidence such as that of ES and the photograph of the applicant’s genitals in Exhibit L so as to give rise to a reasonable doubt concerning the reliability of the evidence of JS.

Both submissions were made at trial and the trial judge addressed them in his judgment. The trial judge concluded that neither consideration gave rise to a reasonable doubt. For the reasons set out below, I have concluded that it was open to his Honour to so find.

The complaint

123. When JS was first spoken to by police he denied that the applicant had touched him sexually. As the trial judge found, JS should not now be disbelieved because of his initial denial. JS was young at the time (probably aged between five and six years when the offending in Count 2 occurred and aged between six and seven when the offending in Counts 3 and 4 occurred). The acts were perpetrated by his stepfather, a person with considerable authority over him, and who had told JS not to tell anyone about the abuse. Unfortunately, with offences of this kind, it can be very difficult for the victim of sexual abuse to disclose what has happened. This is particularly so with young men who fear the embarrassment, shame and stigma which can be associated with this kind of offending. Where family members are involved, there is also a fear of not being believed. Experience and research tells us that these considerations constitute real barriers to timely disclosure of such sexual abuse.

124. In line with those considerations, it should be noted that when Detective Pack first asked JS whether he had any knowledge of sexual involvement with his stepfather and JG, the first response of JS was to inquire what would happen if he provided a statement. He directly asked whether he would have to go to court. It was only then that JS stated that he “couldn’t recall” any incident (T.137.10). Against that background, it was well open to the trial judge to conclude that the initial denial of JS to Detective Pack that he had been sexually assaulted by the applicant was in all the circumstances not such as to diminish his credibility or reliability.

The appearance of the applicant’s penis

125. In respect of Count 2, JS gave evidence that he had seen the applicant’s penis in a darkened room and that the applicant then required him to masturbate his [the applicant’s] penis. JS gave evidence that the applicant’s penis was not erect at this time. Similarly, in respect of Count 3, JS gave evidence that he had seen the applicant’s penis while they were in a well lit shed. The applicant submitted that the description by JS of what he saw should give rise to a significant doubt as to whether the incident occurred at all. The applicant relied upon the evidence of ES and Exhibit L to establish that the applicant’s penis could not be seen when it was not erect as it was withdrawn into the applicant’s body fat.

126. As previously stated, the trial judge expressly considered the evidence about the appearance of the applicant’s penis. On his consideration of the evidence, the trial judge concluded that the evidence established that the applicant’s penis was not visible unless erect. However, his Honour expressed two qualifications to that finding. The first was that the evidence did not indicate whether the position of the applicant’s body affected visibility; the second was that “as a matter of common sense and experience the state of a penis need not be viewed in a binary fashion as falling into alternatives of flaccid or erect”. The point being made by the trial judge was that the evidence did not make it clear at what point in the progression from flaccid to erect the applicant’s penis became visible.

125. In the circumstances described by JS, i.e. of the applicant anticipating sexual activity, an inference could readily be drawn that the applicant was sexually aroused at the time of both incidents. That JS recalled the applicant’s penis as not being erect does not mean that the applicant’s penis was entirely flaccid.

126. It is important to recall that JS first provided a statement about these events in September 2013. At that time he was aged 21. He was an adult and he was speaking about traumatic events that occurred many years before when he was a young boy aged between five and seven. This gives rise to two matters of significance. The first is that there are difficulties in perception, i.e. the ability of a young boy with small hands with limited exposure to the normal size of an adult penis, to receive and perceive information about what he was seeing and touching. Secondly, there are difficulties in relation to recall. It is, of course, generally understood that memory does not work as a video tape. It may well have been the case that JS remembered what happened to him, but did not necessarily recollect the full picture or every aspect of what happened to him. So if at the time of the events, he did not perceive the applicant’s penis to be unusually small, it is understandable that his memory would then be of a penis which was not erect when the evidence is that the penis is not visible when in that state. It is against that background that his Honour made the finding that as a matter of common sense and experience, the state of a penis need not be viewed in a binary fashion. It is important to keep in mind, as his Honour did, that he was assessing evidence which had its origin in the memory of a boy who was then six or seven years old.

127. It was the applicant’s submission that in effect when JS said that what he recalled seeing was a non-erect penis, he must be wrong because one cannot see the applicant’s penis when it is non-erect. The trial judge’s finding, however, is in effect that given JS’s age at the time and given his lack of experience of adult erect penises, potentially what he remembered as a soft non-erect penis was in fact what was described in the expert evidence as his erect penis.

128. In reasoning that there was a continuum between a non-erect and an erect penis, the trial judge relied upon common sense and experience which was something, which standing in the shoes of the jury, he was entitled to do. In that sense, it was open to his Honour to find that aspects of JS’s evidence concerning in particular the description of the penis as non-erect might be unreliable. If JS was speaking of an entirely non-erect penis, then it was open to his Honour to say “well given the lapse of time and given his age at the time of the offending, I can be satisfied that those aspects of reliability do not create any doubt as to his honesty”. It was accordingly open to his Honour to find that unreliability on that limited issue of whether what he was seeing was an erect or non-erect penis, or something else along that continuum, meant JS was simply mistaken, not dishonest. In that respect, such a mistake does not impact upon JS’s reliability about the incident as a whole. He could have easily been mistaken as an adult recalling what he saw as a six or seven year old in terms of the appearance of a penis without being dishonest or unreliable in his complaint about what happened. This would still leave as an established fact that JS was forced to masturbate the applicant’s penis whether in a non-erect or erect state.

129. What his Honour was doing was to assess whether the evidence of JS could be reconciled with the unchallenged expert evidence that when the applicant’s penis was not erect, it could not be seen. His Honour was able to reconcile the two propositions by finding as a matter of common sense that there was a continuum between a flaccid and erect penis and that what JS observed was somewhere along that continuum which would justify the answer which he gave. In reaching that conclusion, it was open to his Honour to add a further qualification that the evidence was that of an adult remembering what he perceived as a child of six or seven. It should be noted that what the trial judge’s assessment of the evidence of JS and his interpretation of it also had to take into account his positive findings as to the demeanour and credit of JS. These, of course, were matters which were very much for the trial judge, standing in the shoes of the jury to determine. It was by taking into account all those matters that his Honour was able to reconcile the evidence of JS with the expert evidence.

130. When regard is had to the age of JS at the time, his lack of experience and what was actually occurring, i.e. a sexual assault, it was well open to his Honour to find that JS had confused what was a semi-erect penis with a flaccid one. It would be highly unusual for a child of six or seven to appreciate that there was a continuum between a penis being flaccid and becoming erect so as to be able to give reliable evidence as an adult as to what he had seen many years before.

131. Taking those matters into account, and also the trial judge’s acceptance of the honesty and reliability of JS, his conclusion beyond reasonable doubt in relation to the evidence of JS concerning the applicant’s penis was well open to him.

DH – Count 7

134. The applicant submitted that DH’s evidence was inconsistent and unreliable. In support of that submission, the applicant contended that:

1. There was an inconsistency between DH’s evidence in chief in which he stated that at the time of Count 7 he was six to seven years old and his police statement in which he said he was eight – nine years old.

2. There was a further inconsistency in that DH initially told police that the masturbation lasted for “about fifteen minutes” while during the trial he said that “it went for about four minutes”.

3. DH said that he spoke to his aunt, TH, about the sexual abuse but TH did not recall that conversation.

4. The alleged incident described by DH was “inherently unbelievable” because the incident occurred in the house at approximately 5.30am when members of the house were waking up.

135. The differences in DH’s evidence as to his age at the time of Count 7 and the length of time during which the masturbation lasted were not such as would diminish DH’s credibility. There is no significant difference between the ages of six to seven and eight to nine. In respect of the duration of the masturbation, it is not surprising that on first reporting the incident, DH may have over estimated its duration given its traumatic nature and then on further reflection estimated a lower duration in his evidence in court. As the Crown submitted at trial, the ability of a six to seven year old child to accurately gauge time intervals is limited. The fact that DH was prepared to acknowledge that the duration of the incident was less than he first estimated does not diminish his credibility or his reliability.

136. While TH did not recall being told anything about sexual abuse by DH, there was other evidence which supported that he had complained to her. ES gave evidence that TH had telephoned her in December 2012. ES said that TH told her something that caused ES to be concerned for DH’s welfare. ES arranged to meet DH and a family friend, KY, at a park. At the park DH confided to his mother that he had been sexually abused by the applicant.

137. The inconsistency between DH and TH as to precisely what was said by DH to TH does not diminish DH’s credibility. It is clear that DH disclosed something of sufficient concern to cause TH to contact ES. DH then immediately disclosed the sexual abuse to his mother.

138. It is quite possible that DH had a faulty recollection of how much detail he had provided to TH. This would be understandable given the nature of the disclosure and the fact that DH provided a full disclosure shortly afterwards to his mother. (In this respect it may be noted that DH could not recall telling his mother about the abuse.) Alternatively, it may be that DH intended to disclose sexual abuse to TH but succeeded only in conveying that he had been physically abused. In circumstances where there is no question that DH did disclose sexual abuse at that time, the discrepancy between DH’s and TH’s evidence on the issue is not significant.

139. Finally, there was nothing about the incident that is the subject of Count 7 that is inherently unbelievable. The incident occurred while it was still dark outside. No-one in the house was awake at the time. (DH’s evidence was that other people in the house would “soon” be waking up.) The only risk was that DH would complain. In those circumstances, the trial judge was entitled to find that there was nothing remarkable in the applicant acting on his sexual interest despite the risk of complaint.

140. This was particularly so in circumstances where the evidence of other counts was capable of supporting an inference that the applicant had a sexual interest in boys within his care and that he was prepared to act on that interest despite the risk of complaint. Contrary to the applicant’s submissions, the probative value of the tendency evidence was not diminished by the fact that all of the complainants were known to each other. The evidence was not relied on to support co-incidence reasoning. It is also not without significance that the trial judge rejected the contention that JS and DH had fabricated their allegations at JG’s request because the submission lacked substantial evidentiary foundation (Judgment 65.5, 71.8).

TRM – Count 12

141. The applicant submitted that the trial judge should not have relied upon TRM’s evidence in support of Count 12 for the following reasons:

1. There was an inconsistency between TRM’s evidence in respect of the appearance of the applicant’s penis and the evidence of ES that should give rise to a reasonable doubt.

2. TRM’s evidence that the applicant had become annoyed when he discovered TRM and JG “fooling around” and being “intimate” with each other was inconsistent with the allegation that the applicant encouraged an act of indecency between them.

TRM’s evidence as to the appearance of the applicant’s genitals was limited to his observation that the applicant had “an erect penis” through the applicant’s underwear. TRM did not give evidence that he had ever seen the applicant’s naked penis. As outlined above, the evidence was that the applicant’s penis was visible when it was erect. TRM’s evidence was that he only observed the applicant’s erect penis through his clothes as the applicant “leaned back”. In these circumstances, TRM’s evidence that the applicant’s penis “looked like an average length penis” is not irreconcilable with the evidence that the applicant’s penis was two to three inches when erect.

142. The fact that the applicant became annoyed when he discovered TRM and JG “fooling around” likewise does not diminish TRM’s credibility. The trial judge concluded:

“TRM’s concession in cross-examination that the [applicant] had remonstrated with TRM and JG after the preceding incident of sexual activity between JG and TRM in the [applicant’s] home does not render it implausible that the [applicant] acted as alleged with respect to JG and TRM on the occasion the subject of count 12.” (Judgment 63.3)

Conclusion

143. For the reasons outlined above, I have concluded that the applicant has not established that his convictions for Counts 2, 3, 4, 5, 6, 7 and 12 were unreasonable.

144. The orders which I propose are:

1. Leave to appeal against conviction is granted.

2. The appeal against conviction is dismissed.

145. PRICE J: This is not a case where the trial Judge’s advantage of having seen and heard the witnesses called at trial may be disregarded. It is abundantly clear from the trial Judge’s judgment that his Honour made a carefully considered assessment of the honesty and reliability of the evidence of each of the complainants. After giving weight to the advantage that his Honour enjoyed and having independently assessed the whole of the evidence myself, I am of the opinion that it was open to the trial Judge to be satisfied beyond reasonable doubt that the applicant was guilty of counts 2, 3, 4, 5, 6, 7 and 12. I am not persuaded that the Judge must have been left with a reasonable doubt as to the applicant’s guilt on any of these counts. Accordingly, the appeals against conviction must fail.

146. I have also had the benefit of reading the judgment of Hoeben CJ at CL. I agree with his Honour’s reasons and the orders that are proposed.

147. CAMPBELL J: I have had the great advantage of reading the judgment of Hoeben CJ at CL in draft. His Honour’s reasons reflect my own views formed from my review of the evidence and the careful judgment of the learned trial judge. Initially I had a reservation about JS’s evidence about the appearance of the applicant’s penis, how that could be reconciled with the evidence of ES and the agreed facts based on the account of MH; and his Honour’s resolution of the apparent inconsistency. As these reasons explain I am satisfied my reservations are resolved by the consideration of the considerable advantage the learned trial judge enjoyed in assessing the evidence, especially of the lay witnesses first-hand.

148. As Hoeben CJ at CL has pointed out (at [104] above), the learned trial judge relied upon two matters to resolve the apparent inconsistency (see judgment 66.9; and 68.7). The first was matter of inference: “as a matter of common sense and experience, the state of a penis need not be viewed in a binary fashion as falling into alternatives of flaccid or erect” (66.9); the second was a comment on the state of the evidence which did not “make clear at what point in the progress from flaccid to erect the accused penis became visible at the time of these events” (66.9).

149. There was some evidence about the second matter. In her evidence, ES agreed with this proposition (Appeal Book 224.20):

When [the accused] does not have an erection and if for instance he was lying on the bed or you know, reclined in some fashion like that, it’s your evidence that his penis would not be visible at all if it was in a flaccid state.

150. Moreover, generally when evidence is not clear or affected by potentially significant omissions that is a matter to be weighed in the balance in favour of an accused person, rather than the prosecution. It is decidedly not for the accused to fill in any perceived gaps in the prosecution case: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 at [34] and [51].

151. Moreover, the final addresses of counsel were wholly in writing not supplemented by oral submissions. I had a concern that if the trial judge had in mind supplementing the evidence by inferential reasoning based on common sense and experience, perhaps that should have been raised with counsel. However, there is no ground, or argument, suggesting any denial of procedural fairness.

152. These matters caused me to consider closely whether the trial judge’s advantage in seeing and hearing the witnesses give evidence was capable of resolving my concerns.

153. The expert evidence of Dr Wines and the facts that were said to have established objectively by it about the state of the accused’s genitals were in the very vanguard of the attack on the credit of each of the complainants at the trial (Written Submissions AB 723 ff; paragraphs [16] – [38]; MFI 16). There was no analysis of Dr Wines’ evidence or its potential significance in the Crown submissions (MFI 15, AB 700 ff) other than in relation to Count 11 involving JG (AB 717). It was submitted that Dr Wines’ evidence corroborated JG’s evidence in respect of Counts 10 and 11. It was certainly not submitted that the apparent inconsistency between the evidence of JS and the evidence of Dr Wines about the condition of the accused’s genitals could be explained on the common sense basis adopted by the judge.

154. As it is not necessary for a juror nor is it necessary for a judge sitting alone to raise every consideration relevant to her or his reasoning process with counsel for comment or submission. Jurors and judges alike are entitled and required to bring their common sense and experience of life to bear in the evaluation of contested questions of fact. The only material difference between them for present purposes is that a judge is required to expose the reasoning process by which the verdict was reached.

155. Notwithstanding the concerns I have expressed, I am keenly aware, as I have said, that the learned trial judge had the advantage of seeing and hearing the complainants and other witnesses give evidence. Although he did not accept the evidence of each complainant as reliable in all respects he formed a very favourable view of their honesty, and directed himself as to the need to be satisfied beyond reasonable doubt that the evidence of each complainant was truthful notwithstanding an asserted motive to lie (AB 376.5).

156. It is trite to say that the forensic advantage of the trial judge is a matter that cannot be recreated in the Court of Criminal Appeal. Seeing and hearing the witnesses places the trial judge in a superior position to the appeal court for assessing their credibility when it is impugned. I do not regard the evidence of Dr Wines as falling into the category of incontrovertible evidence permitting this Court to draw inferences contrary to those drawn by the learned trial judge based upon the favourable view he formed of the credibility of the complainants. Accordingly, notwithstanding the reservations I have expressed, I am of the view that the learned trial judge’s forensic advantage resolves the doubt I may have otherwise have experienced. I am of the view that the verdicts of guilty were open and I conclude that no miscarriage of justice has occurred.

157. I agree with the orders proposed by Hoeben CJ at CL.

ANNEXURE “A” CHRONOLOGY

Date	Event	Source
Nov 1970	Applicant’s date of birth	Exh E [1]
Feb 1992	JS’s date of birth	Exh E [2]
Jan 1995	JG’s date of birth	Exh E [3]
1996	The applicant marries ES	T177.31
Jan 1997	DH (and his twin) born	Exh E [4]
3 Jan 98 – 26 Dec 98	Count 1 allegedly committed (against JS, then aged 3)
5 Feb 98 – 26 Dec 98	Count 2 allegedly committed (against JS, then aged 5 or 6 years)
Feb 1998	Applicant living in home in Cessnock with ES, JG and JS	Exh E [7]
Dec 1998	Relationship between the applicant and ES breaks down. Applicant moves into shed in Cessnock (JG three years of age)	T177.40
1 Jan 99 – 21 Sep 99	Counts 3 and 4 allegedly committed (against JS, then aged 6 or 7 years)
2000	Applicant commenced relationship with MH (mother of DH)	Exh E [11]
2001	Applicant marries MH	Exh E [11]
June 2001	Applicant fathers daughter (SH) with MH	Exh E [12]
2003-2006	Applicant lives in Cessnock with MH and DH	Exh E [7]
December 2003	Applicant fathers daughter (PH) with MH	Exh E [13]
17 July 03 – 7 July 06	Counts 5 and 6 allegedly committed (against JS, then aged 11 to 14 years)
17 July 03 – 7 July 05	Count 7 allegedly committed (against DH, then aged 6 or 7 years)
Mid 2004	Applicant undergoes vasectomy, removal of right testicle and further circumcision	Exh E [14]
Mid 2006	Applicant and MH separate. Applicant moves into residence in Birmingham Gardens	Exh E [17]
8 May 08 – 10 Feb 10	Counts 8/9 allegedly committed (against JG, then aged 13 years)
1 Jan 10 – 10 Feb 10	Counts 10 and 11 allegedly committed (against JG, then aged 14 or 15 years)
Feb – June 2010	Applicant and MH reconcile. No sexual intercourse during this period.	Exh E [20]
11 Apr 2010	Count 12 allegedly committed (against JG with TRM)
May 2010	JG tells his friend, GF that the applicant had assaulted him	Exh G
27 May 2010	JG gives interview to police. Complains of count 1; count 10; count 11 and count 12	Exh A and MFI 5
31 May 2010	JS denies to Detective Pack that anything had occurred with JG and/or the applicant	T137
7 June 2010	JS again denies to Detective Pack that anything had occurred with JG and/or the applicant. TRM tells Detective Park that the applicant did not proposition him.	T147
8 March 2013	DH provides a statement to police concerning count 7	MFI 14
12 September 2013	JS provides a statement to police concerning counts 2, 3, 4, 5 and 6	MFI 13
18 March 2014	JG discloses counts 8/9 to police	MFI 7
19 February 2016	TRM provides a statement to police concerning count 12	Exh H

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Amendments

28 February 2020 - Removal of identifying features in pars [10], [13], [14], [17], [30] and [61].

Decision last updated: 28 February 2020