Doyle v R; R v Doyle - [2014] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Doyle v R; R v Doyle [2014] NSWCCA 4
Hearing dates: 11 July 2013
Decision date: 20 February 2014
Before: Bathurst CJ at [1]; Price J at [432]; Campbell J at [472]
Decision:
1 Appeal against conviction dismissed.
2 Crown appeal against sentence allowed.
3 Quash the sentences imposed by Woods DCJ for counts 17, 18, 21, 22, 23, 28 and 29 being offences contrary to s 66C(2) Crimes Act.
4 In lieu thereof, for each count sentence the appellant to imprisonment for 5 years consisting of a non-parole period of 2 years 6 months commencing on 4 July 2016 and expiring on 3 January 2019 with a balance of term of 2 years 6 months commencing on 4 January 2019 and expiring on 3 July 2021.
5 Quash the sentences imposed by Woods DCJ for counts 35, 36, 37 and 38 being offences contrary to s 61M(1) Crimes Act.
6 In lieu thereof, for each count sentence the appellant to imprisonment for 6 years consisting of a non-parole period of 4 years commencing on 4 July 2012 and expiring on 3 July 2016 with a balance of term of 2 years commencing on 4 July 2016 and expiring on 3 July 2018.
7 Confirm the sentences imposed by Woods DCJ for counts 1-16 inclusive, 19, 20, 24, 25-27 inclusive and 30-34 inclusive.

Catchwords: CRIMINAL LAW - appeal against conviction - sexual offences alleged by multiple complainants - tendency evidence - circular or coincidence reasoning - whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW - appeal against conviction - evidence of complaint - whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW - appeal against conviction - sexual experience of complainant - s 293 Criminal Procedure Act 1986 - whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW - appeal against conviction - s 38 Evidence Act 1995 - whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence - whether error in directions.
CRIMINAL LAW - appeal against conviction - whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW - appeal against conviction - whether impermissible cross-examination of the appellant's character witnesses.
CRIMINAL LAW - appeal against conviction - whether summing up was fair and balanced - whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW - Crown appeal against sentence - whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.
Legislation Cited: Crimes Act 1900 (NSW), ss 61E, 61M, 66C, 66D, 78Q, 81
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10, 28
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 130A, 293
Evidence Act 1995 (NSW), ss 11, 38, 39, 46, 60, 66, 97, 98, 101, 102, 103, 106, 108, 135, 136, 137, 192
Cases Cited: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
Abdel-Hady ('Sa') v R [2011] NSWCCA 196
BP v R [2010] NSWCCA 303
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Carbines v Powell (1925) 36 CLR 88
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Col v R [2013] NSWCCA 302
DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206
GEH v R [2012] NSWCCA 150
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Johnson v R (2004) 78 ALJR 616
Kanaan v R [2006] NSWCCA 109
KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226
KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552
Magnuson v R [2013] NSWCCA 50
Mill v R (1988) 166 CLR 59; 36 A Crim R 468
Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Pemble v The Queen (1971) 124 CLR 107
PWB v R [2011] NSWCCA 84
R v Berrigan (Court of Criminal Appeal (NSW), 7 October 1994, unreported)
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
R v Hammond [2000] NSWCCA 540
R v Holder & Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375
R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Meher [2004] NSWCCA 355
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Morgan (1990) 30 NSWLR 543
R v Ryan (No 7) [2012] NSWSC 1160; (2012) 218 A Crim R 384
R v Souleyman (1996) 40 NSWLR 712
R v Sukkar [2005] NSWCCA 54
R v Velevski (No 2) (1997) 93 A Crim R 420
R v Veverka [1978] 1 NSWLR 478
R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51
R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629
SGJ v R; KU v R [2008] NSWCCA 258
Shanahan v Scott (1957) 96 CLR 245
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
Texts Cited: J D Heydon, Cross on Evidence, (9th Aust ed 2013)
Category: Principal judgment
Parties: Appeal against conviction
Philip William Doyle (Appellant)
Crown (Respondent)
Appeal against sentence
Crown (Appellant)
Philip William Doyle (Respondent)
Representation: Counsel:
T A Game SC, G A Bashir and P Dwyer (Philip William Doyle)
M Cinque (Crown)
Solicitors:
Uther Webster & Evans (Philip William Doyle)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/194799
Publication restriction: Non-publication orders in respect of all complainants excluding Mark Lawrence, all witnesses the naming of whom could identify the complainant, all witnesses who were juveniles at the time of an offence and the witness MB.
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-24 00:00:00

Before:

Woods QC DCJ

File Number(s):

2009/194799

Judgment

BATHURST CJ: Philip Doyle (the appellant) was arraigned on 38 charges alleging sexual offences committed against five male complainants.

The appellant was initially tried on these 38 counts and one further count before Judge North and a jury (the first trial). Judge North gave a directed verdict on one count and the jury was otherwise unable to reach a verdict. At his subsequent trial before Judge Woods QC and a jury, the appellant was convicted on all 38 counts. He was sentenced to an overall term of 7 years' imprisonment with a non-parole period of 4 years and 6 months.

The appellant has appealed against his conviction and sought leave to the extent that it was necessary to do so.

The Crown has appealed against the sentence imposed pursuant to the provisions of s 5D of the Criminal Appeal Act 1912 (NSW).

The charges the subject of the appeal

Counts 1 to 3 in the indictment alleged indecent assault against a male person, Mr Mark Lawrence, contrary to s 81 of the Crimes Act 1900 (NSW) (the Act). The assaults the subject of Counts 1 and 2 were said to have occurred between 1 September 1980 and 30 April 1981, whilst the assault the subject of Count 3 was said to have occurred between 1 September 1981 and 30 April 1982.

Counts 4 and 5 charged sexual offences against a male person, PM. Each of the charges alleged that the appellant was a party to an act of gross indecency with PM, a male person under the age of 18 years, namely, 16 years contrary to s 78Q(1) of the Act. The offences were said to have taken place between 8 June 1985 and 31 August 1985.

Counts 6 to 11 charged sexual offences against a young male person, DL. Counts 6 to 10 alleged that contrary to s 61E(1A) of the Act, the appellant assaulted DL and at the time of the assault committed an act of indecency on him, DL being under the age of 16 years and under the authority of the appellant. The offence the subject of Count 6 was alleged to have taken place on 5 August 1986; the offence the subject of Count 7 between 1 September 1986 and 30 September 1986; the offences the subject of Counts 8 and 9 between 1 February 1987 and 28 February 1987; and the offence the subject of Count 10 between 1 March 1987 and 30 April 1987.

Count 11 charged that between 1 March 1987 and 30 April 1987 the appellant solicited DL, a male person under the age of 18 years, to commit an act of homosexual intercourse with or towards a male person, contrary to s 78Q(2) of the Act.

Counts 12 to 16, 19 to 20, 24 to 27 and 30 to 34 charged that the appellant contrary to s 61E(1A) of the Act assaulted KM and at the time of the assault committed an act of indecency on him, KM being under the age of 16 years and under the authority of the appellant. Count 12 was alleged to have taken place between 1 July 1989 and 31 July 1989, Count 13 between 1 August 1989 and 31 October 1989, and Counts 14 to 16 and 19 between 1 September 1989 and 24 December 1989. KM was aged 13 years at the time that these offences were said to have taken place.

The offence the subject of Count 20 was said to have taken place between 1 January 1990 and 28 February 1990; the offences the subject of Counts 24 and 25 were said to have taken place between 1 January 1990 and 31 March 1990; the offences the subject of Counts 26, 27, 30, 31 and 32 were said to have taken place between 1 April 1990 and 30 April 1990; and the offences the subject of Counts 33 and 34 were alleged to have taken place between 1 July 1990 and 24 December 1990. At the time of each of these alleged offences KM was said to have been aged 14 years.

Count 17 charged that the appellant contrary to s 66D and s 66C(2) of the Act attempted to have sexual intercourse with KM, a person over the age of 10 but under the age of 16 years, namely, 13 years and under the authority of the appellant. The offence was alleged to have been committed between 1 September 1989 and 24 December 1989.

Count 18 charged that the appellant contrary to s 66C(2) of the Act had sexual intercourse with KM, a person over the age of 10 years and under the age of 16 years, namely, 13 years of age and under the authority of the appellant. The offence was alleged to have been committed between 1 September 1989 and 24 December 1989.

Counts 21 to 23, 28 and 29 charged that the appellant contrary to s 66C(2) of the Act had sexual intercourse with KM, a person above the age of 10 and under the age of 16 years, namely, 14 years of age and under the authority of the appellant. The offences the subject of Counts 21 to 23 were alleged to have taken place between 1 January 1990 and 28 February 1990, whilst the offences the subject of Counts 28 and 29 were alleged to have taken place between 1 April 1990 and 30 April 1990.

Counts 35 to 38 alleged that contrary to s 61M(1) of the Act the appellant assaulted MH and at the time of the assault committed an act of indecency on him, MH then being under the age of 16 years, namely 15 years. Each of the offences was alleged to have taken place between 12 April 2003 and 20 November 2003.

Outline of the Crown case

Although it will be necessary to deal with the factual background in relation to some of the charges in more detail when addressing the grounds of appeal, broadly speaking the Crown alleged that each of the complainants were young persons who were befriended by the appellant whilst he was the proprietor of a cinema known as the Kogarah Mecca (the theatre). It was alleged that Mr Lawrence applied for a job at the theatre in early 1980 and worked as a projectionist and an usher on Thursday, Friday and Saturday evenings. The Crown alleged that over time the appellant befriended Mr Lawrence and his family. The appellant was alleged at one stage to have promised Mr Lawrence a car and a vintage projector if he worked at the theatre for two years.

Mr Lawrence said that a few times the appellant and he went to the appellant's unit at Ozone Street, Cronulla, where they had a sauna or a shower.

The indecent assaults the subjects of Counts 1 to 3 were alleged to have occurred in the projection booth of the theatre. Mr Lawrence stated that as it was very hot in the booth he would wear only a singlet and underpants under his overalls. Mr Lawrence claimed the appellant came into the booth and slid his hands into the slits behind the pocket flaps of the overalls where he fondled Mr Lawrence's penis.

Mr Lawrence ceased to work at the theatre in early 1982.

PM's sister performed in two pantomimes at the theatre. Between the first pantomime and the second (Hansel and Gretel) PM and his family socialised with the appellant and visited his unit overlooking the beach at Cronulla.

PM said that he worked as an usher through every performance of Hansel and Gretel. After the pantomime PM began to spend more time with the appellant, although generally in the company of his family.

In June 1985 PM's father left for a job in Lismore but his family did not join him until about January 1986. PM continued to see movies at the theatre and received some driving lessons from the appellant. PM said that one night when they drove to Kurnell the appellant suggested they could come back when the weather was warmer and that if they did so PM would not need swimming attire because they could swim in the nude.

PM referred to an incident in July or August 1985 when he had gone to the theatre with friends and was offered cask wine by the appellant. As he did not want his mother to find out that he had been drinking it was agreed that the appellant would ask PM's mother to let PM stay overnight at the appellant's unit.

After PM's mother agreed, PM stated that he and the appellant went back to the theatre and continued drinking. PM said he became intoxicated. He said that during the journey back to the appellant's unit the appellant touched his penis through his clothing and said something about his "little dick". This was the subject of Count 4 in the indictment.

PM claimed that when they arrived at the unit the appellant assisted in removing his clothing and slid his underpants off saying, "You won't be needing those".

Thereafter PM said they got into bed and the appellant started to fondle PM's genitals stating, "this will help us to be better friends". PM said it hurt and he asked the appellant if there was any form of lubricant. The appellant obtained some baby oil and put it on his hand and on PM's genitals which he continued to fondle. This incident was the subject of Count 5.

PM said that on the next day he contacted and arranged to meet a friend who he identified as NL. The following day he met NL and told him that something of a sexual nature had occurred involving the appellant. However, PM continued to see the appellant.

PM said that he had heard of Mr Lawrence's name but had never met him. PM did not recall DL's name and did not remember meeting anyone by that name.

DL commenced working at the theatre shortly after March 1986. He was given a uniform to try on and he told the appellant that the pants were tight. The appellant checked by feeling the front of DL's pants. He was given a different uniform.

Initially DL worked Tuesday and Friday nights at the theatre, but later he also worked a shift on Saturday afternoons, mainly during school holidays. The appellant also asked him to come in early on Saturdays to help him with odd jobs. He stated that on occasion the appellant took him to lunch at McDonald's or a Chinese restaurant.

On Tuesday 5 August 1986 there was a large storm and Salt Pan Creek flooded. DL lived on the other side of the river to the theatre and no traffic could get through, so DL could not be picked up and taken home. DL said he recalled a conversation between himself, the appellant, and Mr Robert Tenant, the theatre manager, in which Mr Tenant offered that he stay at his home. However, the appellant said he would have DL at his place. DL and the appellant arrived at the appellant's Cronulla unit at about 11.00pm.

DL was told by the appellant that he did not have a spare bed so he would have to sleep in the appellant's bedroom. As DL did not have a change of clothes he got into bed in his underpants. The appellant also got into the bed, also in his underpants and possibly a t-shirt.

DL's evidence was that the appellant was talking to him and touching him on his arm or leg. Eventually the appellant touched DL's penis on the outside of his underpants, holding his hand there for about 30 seconds. DL said he was in shock and very scared. He said the appellant started to stroke his penis and placed DL's hand on his own penis. DL said that he thought at some stage his underpants were removed by the appellant.

DL said that the appellant started to masturbate him. DL said his hand was on the appellant's penis and that the appellant was thrusting his hips into DL's hand. DL said this continued for about two hours.

This incident was the subject of Count 6 in the indictment.

DL said that in around late September 1986 he went to the appellant's house in Sans Souci. The appellant asked him to pose for photographs. DL said that he would and he was given some Speedos to put on. He said they were too small and made his genitals bulge through his pants. The appellant photographed him around the pool and inside the house and then suggested that they go for a drive to Kurnell around the sand dunes.

DL said that whilst they were sitting in the back of the appellant's ute, DL wearing the Speedos and the appellant dressed in Speedos and a t-shirt, the appellant started to touch him on the inside and outside of his Speedos and asked DL to do the same to him. It lasted for about 15 minutes.

This incident was the subject of Count 7.

DL said that in around late November or December 1986 the appellant bought him a 10 watt amplifier.

DL gave evidence that sometime later the appellant asked him if he would like to watch a pornographic movie. DL said that one night shortly thereafter he and the appellant went to dinner at a Chinese restaurant. They then went to the appellant's house and began to watch the film on television whilst seated at the edge of the bed. The appellant asked DL if he would like to masturbate to the film. Each of them removed their pants and masturbated.

They then started to masturbate each other. DL continued to masturbate the appellant until he ejaculated onto his stomach. This was the subject of Count 8.

DL said a similar event to that the subject of Count 8 occurred the following morning, although it did not last as long as the night before. This was the subject of Count 9.

Count 10 involved a similar incident to that the subject of Counts 8 and 9. DL said the incident occurred on a night in around March or April 1987 at the appellant's home.

DL stated that at that time the appellant asked him to kiss his penis, saying words to the effect "Can you kiss me down there?" DL said he did so and the appellant then asked him to put it in his mouth. DL said he was unable to do so, the thought of it making him feel very sick. DL said he believed that he and the appellant continued to masturbate each other after that. This incident was the subject of Count 11.

KM went on a school excursion to the theatre for a screening in around April or May 1989. He said in evidence that some of the other students were "stuffing about" and he told them off as he was keen to see the film. KM said the appellant told him that he was impressed with what he had done and asked him whether he was interested in working at the theatre.

KM said that after discussions between himself, the appellant and his mother, he started to work at the theatre, probably sometime between May and July 1989. He said that while he was trying on his uniform the appellant assisted him and in the course of doing so felt the pants around his waist between his crotch and at times brushed his hands against KM's lower buttocks and crotch entirely on the outside.

KM said that from time to time after school he went to the theatre and chatted with the appellant. He said that one day in July 1989 the appellant told him he was good looking and he would like to take his photograph. KM said that the appellant told him he would like to see him with his shirt off and to see what he would look like naked. KM said he took his shirt and pants off and was standing in his underwear. He said the appellant then touched him on the chest and around the buttocks and crotch area, encouraged him to take his underpants off and assisted him in doing so.

KM said that the appellant then began to fondle his penis to a point where he got an erection. KM said that it continued for a little while but he could not recall how it ended. This incident was the subject of Count 12.

After the theatre closed down at some time between August and October 1989, KM said that he assisted the appellant in removing rubbish.

KM stated that he was struggling with his sexuality, believing he was gay, and wanted to talk to someone about it. He said he regarded the appellant as a surrogate father figure and told him that he thought he was gay.

KM said that one day in August or September 1989 the appellant offered to take him on a tour of the theatre. This included the behind stage area where some pantomime costumes were kept. KM said that the appellant pointed to one and said that he should try it on. KM said the appellant assisted him to get undressed, helping him take off his pants and underpants. When he was naked he said the appellant told him how good looking he was and touched him on the buttocks and around the crotch.

Thereafter KM said that the appellant touched him on his penis and played with it until it became erect. This incident was the subject of Count 13.

KM said that on another occasion in late 1989, he and the appellant drove in a small truck to the Menai Tip to remove rubbish. He said that during the drive the appellant reached over and started touching him on his leg. The appellant then moved his hand to KM's crotch area on the outside of his pants, and then to his crotch inside his pants but over his underpants.

KM said that the appellant then moved his hand inside KM's underpants and touched his penis. KM said he got an erection which the appellant maintained by continually touching and squeezing his penis. This incident was the subject of Count 14.

KM said that once they unloaded the rubbish they got back in the truck and drove toward the appellant's house. KM said that when he and the appellant arrived at the appellant's home, the appellant gave him a pair of Speedos. When KM got undressed the appellant started to touch him on his penis and he got an erection. This was the subject of Count 15.

After KM put on the Speedos he said that he and the appellant commenced swimming in the pool at the appellant's house. The appellant took off his Speedos and encouraged KM to do the same and helped him to take them off. After he did, KM said the appellant touched him on his penis. He said he got an erection and the appellant maintained it by touching him. The appellant encouraged KM to touch his penis as well, moving his hand and leading it down to the appellant's crotch and telling him to touch or squeeze him. This was the subject of Count 16.

KM said he then went to the edge of the pool and put his arms over the ledge. He said the appellant came up to him, lifted him away from the edge and used one of his hands to rub his buttocks. KM said he felt the appellant's finger move inside his anus and start to probe inside. This hurt and the appellant stopped. This incident was the subject of Count 17.

KM said the appellant then kissed him on the mouth for a little while and KM then got out of the pool and sat on the edge with his feet dangling in the water. The appellant then swam up to him and opened his legs.

KM said that the appellant then put his mouth around KM's penis and took it off, repeating this a couple of times. The appellant then started to move his head back and forth along KM's penis until KM thought he was about to ejaculate. KM did not want to do so, so he backed off. This was the subject of Count 18.

After this occurred KM said that he and the appellant lay on the pavement next to the pool. The appellant continued to touch KM on his penis until he ejaculated. This was the subject of Count 19.

In early 1990 KM and the appellant met at the theatre and from there went to the appellant's house. KM said that as they drove to the house the appellant touched him on the leg and then on his crotch on the outside of his pants. He then put his hand inside KM's pants and fondled KM's penis.

During the drive to the appellant's home KM said that the appellant told him that he had some homosexual pornography. KM said that when they arrived he and the appellant got undressed, lay on the bed, and watched the video. KM said the appellant started to fondle his penis and he got an erection. The appellant either asked KM to touch his penis or moved his hand so he was touching it. This was the subject of Count 20.

KM said that the appellant then put his open mouth onto his penis and moved his head up and down. This was the subject of Count 21.

KM said that the appellant encouraged him to do the same thing to him. KM said the appellant touched him on the head and encouraged him to move his head down to the appellant's crotch. KM said that he opened his mouth and put it on the appellant's penis. The appellant told him not to bite but to suck and to move his mouth up and down. KM said that he did this for a few minutes. This was the subject of Count 22.

KM said the appellant then told him to lie on his stomach. The appellant fondled his penis between his legs and rubbed his hands up around KM's buttocks. KM said the appellant then inserted a finger into his anus. He pulled it out and inserted it again, KM believed more deeply. KM said he told the appellant it was hurting and he stopped. This incident was the subject of Count 23.

Sometime between late January and March 1990 KM said he was again helping at the theatre. KM said that he and the appellant drove to the appellant's house and on the way the appellant put his hand down KM's pants and fondled him. This incident was the subject of Count 24.

When they arrived at the house KM said he and the appellant went for a swim. After being in the pool for a period they took off their swimmers and swam naked. KM said the appellant touched and fondled his penis, causing it to become erect. KM also touched the appellant's erect penis. This incident was the subject of Count 25.

In around April 1990 KM said that the appellant took him on another tour of the theatre. He and the appellant then drove to the appellant's house. KM said that during the drive the appellant touched him on the crotch and then put his hand on the front of his pants and fondled his penis until it became erect. This incident was the subject of Count 26.

When they arrived at the appellant's house KM said that the appellant showed him some photographs of young males about his age, some in swimmers and some naked. KM said to the appellant how good they looked without any body hair. The appellant then offered to shave KM. KM said that he and the appellant then went to the sauna at the house. After they turned the sauna on they went to the bedroom, got undressed and watched a pornographic video. KM said the appellant began to fondle him and he reciprocated. This incident was the subject of Count 27.

KM said that the appellant then encouraged him to put his mouth around the appellant's penis which he did. He said the appellant placed his hands on either side of KM's head and moved slowly back and forth. This went on for about five to ten minutes. This incident was the subject of Count 28.

KM said that when that finished the appellant placed his mouth over KM's penis and did the same to him. This was the subject of Count 29.

KM said that thereafter he and the appellant went to the sauna where the appellant fondled him until he became erect. This incident was the subject of Count 30.

KM said that they then went for a swim after which they went to the bathroom where the appellant shaved KM's legs, stomach and chest areas. KM said the appellant then shaved his pubic area and whilst doing so fondled him to get an erection. This was the subject of Count 31.

Thereafter KM said that he had a shower and returned to the lounge where there was swimwear laid out with a camera. Over the course of the next hour or hour and a half, KM said the appellant took photographs of him, some with him wearing a swimming costume and some naked. In some of the photographs KM had an erection because the appellant had fondled his penis. This incident was the subject of Count 32.

In about late 1990 KM said he had a conversation with the appellant at the theatre. The appellant told him the photographs had turned out well and invited KM to his home to look at them. On the drive to the appellant's home KM said the appellant placed his hand straight down the front of KM's pants and fondled him to get an erection. This incident was the subject of Count 33.

On the drive back following the viewing of the photographs KM said the appellant fondled him on his penis. This was the subject of Count 34.

MH was around 14 years of age when he sought a job at the theatre. He received a phone call from the appellant to come in to meet him and to possibly try on an usher's uniform. Whilst he was trying on the uniform the appellant placed his hands on MH's hips and between his naval and pubic region to gauge the measurement.

MH commenced working at the theatre in September or October 2002. MH said that during the Easter school holidays the following year he had a conversation with another employee at the theatre, during the course of which MH said that he had shaved his genital region after watching a pornographic film.

The appellant found out about this and MH said the appellant asked him to pose for photographs. MH said he told the appellant he thought it was "a bit gay" but the appellant said there was nothing gay about it. MH then agreed.

A couple of days after MH told the appellant that he had shaved his pubic hair, he and the appellant were in the staff room behind the candy bar. MH said the appellant closed the doors and said, "Look come over this way and turn your back to the CCTV because there's a blind spot". MH said that the appellant then asked to "have a look at it" (where he had shaved himself) and the appellant put his hands "near my testicles and I guess went for a grope". This incident was the subject of Count 35.

When MH commenced working at the theatre he was picked up by his mother. However, subsequently he was taken home by the appellant. These car trips usually included MH, the appellant and another employee, MB, however occasionally it would only be MH and the appellant.

On one of these occasions MH said that the appellant asked to look at his genitalia to see how the hair growth was progressing. MH said it was not really a look, "it was more of a fondle, he'd just go down for a fondle". This incident was the subject of Count 36.

MH said he noticed a pattern evolving and after that he sought to ensure that MB was present when the appellant drove him home.

MH said that on one occasion he encountered the appellant in the main foyer toilet. He said the appellant pushed him back into a cubicle and put his hands down his pants. MH described it in the following terms, "I guess felt my penis, went for a grab". This incident was the subject of Count 37.

MH said that sometimes it was necessary for him to go to the candy bar supply room. He said he was mindful of the area being isolated and tried to be quick when down there. MH said that once the appellant caught him there and "put his hand down my pants inside my underpants" and would "once again go for a grope". This incident was the subject of Count 38.

The defence case

The appellant gave evidence denying all of the allegations. Part of his evidence was supported by the evidence of Mr Tenant and MB. In addition, the appellant relied on evidence of good character, calling a number of character witnesses.

The conviction appeal

Ground 1 - The trial judge misdirected the jury as to the proper uses of evidence admitted as tendency evidence and failed to adequately direct the jury as to permissible and impermissible uses of the evidence

The Crown sought to rely on tendency evidence at the trial, serving notices on 24 August 2011 prior to the first trial and on 19 March 2012 prior to the trial the subject of this appeal, which stated that the Crown intended to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The notice dated 19 March 2012 so far as relevant was in the following terms:

"The tendency sought to be proved is his/her tendency to act in a particular way or to have a particular state of mind, namely:

1. To have a sexual interest in young male employees

2. To engage in sexual activities with young male employees

3. To use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The activities which the Accused engaged in which demonstrate the tendencies described above include the proclivity of the Accused:

(a) to be alone with young male employees in a cinema

(b) to have young male employees alone with him in his car

(c) to have young male employees alone with him at his house

(d) to share his bed with young male employees

(e) to engage young male employees to undertake additional work beyond their employment at the cinema

(f) to be present while young male employees try on their uniform

(g) to hug young male employees

(h) to kiss young male employees

(i) to ask young male employees to show him their private parts being genitals or buttocks

(j) to touch young male employees on their genitals

(k) to touch young male employees on the genitals when they were alone with him in his cinema

(l) to masturbate young male employees

(m) to masturbate in the presence of young male employees when they were alone with him

(n) to fellate young male employees when they were alone with him

(o) to request or have young male employees fellate him

(p) to question young male employees about their sexual activity and experience

(q) to discuss pornographic films with young male employees

(r) to show pornographic films to young male employees

(s) to take young male employees for drives in his car

(t) to provide young male employees with food treats

(u) to offer to take photographs of young male employees

(v) to take or collect photographs of young males in swimwear or the nude

(w) to be in company of young male employees while they are wearing Speedo style swimwear

(x) to give alcohol to young male employees

(y) to be interested in young male employees having a shaved genital area

(z) to provide meals for young male employees, with and without their family members

(aa) to give young male employees free admission to films

(bb) to give young male employees free admission for friends and family to films

(cc) to give gifts to young male employees"

The notice stated that the evidence of tendency sought to be adduced by the prosecution bore upon the facts in issue. The notice then set out in detail 52 particular facts that the tendency evidence was said to bear upon.

On 5 September 2011, senior counsel for the appellant at the first trial filed a motion seeking orders including that the counts on the indictment relating to each of the complainants be severed from those relating to the other complainants and that the tendency evidence be excluded.

On 8 September 2011 Judge North dismissed the motion. The appellant submitted that as the ruling of Judge North was not revisited at the trial the subject of this appeal, his judgment on the admissibility of tendency evidence was binding as a consequence of s 130A of the Criminal Procedure Act 1986 (NSW). Whether this was so in circumstances where a further tendency notice was filed may be questionable but, in any event, no appeal has been brought in relation to the admission of the tendency evidence as distinct from the directions given in respect of it.

The tendency evidence was referred to at length by both the trial judge and Crown Prosecutor at the trial. In her closing, the Crown Prosecutor considered the tendency evidence toward the beginning of her address:

"The other thing that has to be proved beyond reasonable doubt, if you're going to rely on it, is the tendency. That is the tendency the Crown alleges the accused had to act in certain ways; his sexual interest with young male employees; the fact that he acted on that sexual interest. So that is another aspect; if you're going to rely on the tendency, it must be proved beyond reasonable doubt."(26/06/2012 p 3)

Later in her closing address, the Crown Prosecutor made the following observations in relation to the tendency evidence:

"Ladies and gentlemen, it is part of this Crown case to say that the accused had tendency to act in certain ways. Relying on the tendency in that way, you can use evidence from one victim in relation to another victim if you find beyond reasonable doubt that the tendency is established on one person's evidence or on two people's evidence. If you find it's established beyond reasonable doubt then it can interact between all these charges.

The tendencies that are alleged, it's a pattern of behaviour from the accused that he had a sexual interest in young male employees, that he engaged in sexual activities with young male employees, and he used his position of authority to obtain access to young male employees so he could engage in sexual activity with them.

I've addressed you a lot as I've gone through the evidence in relation to the patterns and bits of evidence that you can see that proves the tendency; being alone in the car, the cinema, the home, engaging them to get additional work beyond their employment in the cinema. Why? Because that way you're alone with the boy. That creates the situation, the closeness, the opportunities.

To be present when they try on their uniform. I forgot to refer to it yesterday in relation to [MH] but he spoke about how the accused slipped his hand down the front of his pants when he got him to strip off in front of him to try on his uniform. Remember what he did to [KM]. He doesn't do it with his mother. He's thirteen years old, his mother is there, he can get his uniform fitted. No. He waits until he's alone with the boy and he touches him.

Sharing his bed with young male employees; [PM], [DL], [KM]. [KM] doesn't stay overnight but he's certainly in bed with him.

The hugs, the kiss; Mark Lawrence.

Asking young male employees to show him their private parts, being genitals or buttocks. He does it to Mark Lawrence. He does it to [MH]. He arranges it with [KM] in relation to wanting to photograph him. Touching them on their genitals, getting the accused to be masturbated by the boys, masturbating the boys, acts of fellatio when he's alone, requesting them to do that for him. The request was made of [DL] but he couldn't go through with it. [KM] did.

Discussion of pornographic material with the young male employees. We've got the use of pornography with Mark Lawrence, with [DL], with [KM] and the text, the way it happens in relation to [MH] is again about the pornography.

Offering to take photographs of young male employees, taking their photographs. That applies to three of them.

Being in their company in relation to Speedos, alcohol, an interest in the shaved genital area. [KM] he gets to shave down. [MH] he keeps on asking him about it.

Gift giving, providing of meals, getting their family to come in. This is special attention for these boys." (27/06/2012 pp 4-5)

As set out in the paragraph above, the Crown Prosecutor noted that in going through the evidence she had addressed the jury in relation to the "patterns and bits of evidence" that were said to prove the tendency. Examples from earlier in her closing included:

"There was one time when Mark Lawrence went to the accused's place that the accused played a pornographic video for him. That is sexualising the relationship between the employer and the employee. That is behaviour that will get repeated time and time again by the accused.

Of course, the accused has denied playing pornography for Mark Lawrence, the same as he denied playing it for [DL], the same as he denied playing it for [KM]. The same as he denied discussions about pornography with [MH]."(26/06/2012 p 5)

...

"But you can see that there's this pattern emerging of special attention for Mark Lawrence and the way he's treated by Philip Doyle. The pattern will be repeated many years later and many, many times."(26/06/2012 p 6)

...

"Again, ladies and gentlemen, this is time, extra time the accused is manoeuvring to be able to spend with these boys, just like he did with Mark Lawrence, just like he did with [PM], taking him off for the driving lessons, and now he's starting with [DL]. In relation to taking stuff to the tip, again it's a pattern that he used with [KM]. Robert Tenant confirmed that throughout the time with the cinema because of the nature of the cinema there was always stuff going to the tip. So we've reached this pattern, we've reached this developing where he's got the more time spent with him, we've got the sexual jokes, we've got the extra time."(26/06/2012 p 23)

...

"Ladies and gentlemen, you can see a very significant and substantial escalation in the behaviour. [KM] is treated differently from the other boys. But as I say, unlike the others, who were feeling dirty or disgusted or guilty, or that it was something wrong, [KM] was actually comfortable with the behaviour. And that is why, in my submission, the accused was able to keep going with what he did.

You can also see with this evidence that we've got the technique that's appeared before of a slow build up. You go to a stage where the person is comfortable before you go to the next step.

Normalised sexual behaviour, use of pornography, jokes, conversation about sexual activity, create excitement and anticipation by talking about pornography before showing it to a teenage boy. It's a pattern of behaviour that you see not just with [KM], but with the others, the progression, the build up, the acceleration, the escalation of the offending."(26/06/2012 p 52)

The trial judge's written directions to the jury so far as they related to the tendency evidence were in the following terms:

"Generally, juries may only consider in relation to a particular charge the evidence directly related to that charge and only such evidence. You have before you here the evidence that the Crown relies upon as establishing that the accused committed the particular offences set out in the indictment.

However in certain cases the Crown may be allowed to add to the evidence it calls to prove guilt of a particular charge what the law calls 'tendency' evidence.

Here, the Crown is allowed to assert, in the proof of any (or all) of the charges, a pattern of behaviour revealing that the accused had a tendency to act in a particular way. Here, the Crown asserts that at the time of the alleged offences, the accused:

1. had a tendency to have a sexual interest in young male employees;

2. had a tendency to engage in sexual activities with young male employees; and

3. had a tendency to use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The Crown asserts that the tendencies of the accused which it alleges are demonstrated by the accused doing acts (drawn from the evidence related to all the charges) such as:

taking young males driving alone in his car; having young male employees to his house, alone; touching young male employees on the genitals while fitting their uniforms; questioning young male employees about their sexual experience; giving gifts to young male employees; discussing pornographic films with, and showing such films to young male employees; offering to take photographs of young male employees in underpants or naked; giving alcohol to young male employees; discussing the shaving of the genitals of younger male employees, and actually doing it.

The evidence of the accused having one or more of the tendencies alleged can only be used by you, in the way that the Crown asks you to use it, if you make two findings beyond reasonable doubt.

The first finding is that you are satisfied beyond reasonable doubt that one or more of those alleged acts, which I have listed, in fact occurred.

In making any such finding you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you are satisfied that a particular act relied upon actually took place. If you cannot find that any of these acts is proved beyond reasonable doubt, then you must put aside any suggestion that the accused had the tendency advanced by the Crown.

If you do find beyond reasonable doubt that one or more of those acts occurred, then you go on to consider the second finding. You ask yourself whether, from the act or acts that you have found proved, you can conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt, then again you must put aside any suggestion that the accused had the tendency alleged.

However, if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can from the proved act or acts conclude beyond reasonable doubt that the accused had the tendency to act in the particular way that the Crown alleges, you may use the fact of that tendency in considering whether the accused committed the offences charged, or any of them.

The evidence must not be used in any other way. It would be completely wrong to reason that, because the accused may have committed one crime or been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed all or any of the other offences. That is not the purpose of the evidence at all and it must not be used in that way."

(Emphasis in original)

The written directions also contained the following in relation to the issue of separate consideration of the counts in the indictment:

"Subject to a later direction about 'tendency' evidence, you must consider and decide upon each count separately, on the basis of the evidence relating to that charge.

Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider whether or how that conclusion affected your consideration of the remaining counts."

This written direction was delivered in almost identical terms in the trial judge's summing up to the jury (29/06/2012 p 2).

In summing up the trial judge addressed at an early stage the function of complaint and tendency evidence in the following terms:

"In considering the various complainants' evidence and whether it does satisfy you of the accused's guilt on one or more of the relevant charges, you can look to see if that evidence is supported by other evidence in the trial. Such other evidence includes complaint evidence and tendency evidence and in this case the Crown says that there is evidence of this kind to support the evidence of the individual complainants ..." (29/06/2012 pp 5-6)

The trial judge then gave lengthy directions concerning the use that the jury could make of the tendency evidence. This was largely consistent with his Honour's written directions and was in the following terms:

"TENDENCY EVIDENCE

Generally juries may only consider in relation to a particular charge the evidence directly related to that charge and only such evidence. You have before you here the evidence that the Crown relies upon as establishing that the accused committed the particular offences set out in the indictment. However, in certain cases, the Crown maybe allowed to add to the evidence it calls to prove guilt of a particular charge, what the law calls tendency evidence.

Here the Crown is allowed to assert in the proof of any or all of the charges a pattern of behaviour revealing that the accused had a tendency to act in a particular way. Here the Crown asserts that at the time of the alleged offences the accused (1) had a tendency to have a sexual interest in young male employees, (2) had a tendency to engage in sexual activities with young male employees and, (3) had a tendency to use his position of authority to obtain access to young male employees so that he could engage in sexual activity with them.

The Crown asserts that the tendencies of the accused which it alleges are demonstrated by the accused doing acts drawn from the evidence related to all the charges such as taking young males driving alone in his car, having young male employees to his house alone, touching young male employees on the genitals while fitting their uniforms, questioning young male employees about their sexual experience, giving gifts to young male employees, discussing pornographic films with and showing such films to young male employees, offering to take photographs of young male employees in underpants or naked, giving alcohol to young male employees, discussing the shaving of the genitals of younger male employees and actually doing it.

The evidence of the accused having one or more of the tendencies alleged can only be used by you in the way the Crown asks you to use it if you make two findings beyond reasonable doubt. The first finding is that you are satisfied beyond reasonable doubt that one or more of those alleged acts which I have listed in fact occurred. In making any such finding you do not consider each of the acts in isolation but consider all of the evidence and ask yourself whether you are satisfied that a particular relied upon actually took place. If you cannot find that any of these acts is proved beyond reasonable doubt then you must put aside any suggestion that the accused had the tendency advanced by the Crown.

If you do find beyond reasonable doubt that one or more of those acts occurred then you go onto consider the second finding. You ask yourself whether from the act or acts that you found proved you can conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that conclusion beyond reasonable doubt then again you must put aside any suggestion that the accused had the tendency alleged. However, if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can from the proved act or acts conclude beyond reasonable doubt that the accused had the tendency to act in the particular way that the Crown alleges, you may use the fact of that tendency in considering whether the accused committed the offences charged or any of them. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused may have committed one crime or been guilty of one piece of misconduct is therefore generally a person of bad character and for that reason must have committed all or any of the other offences. That is not the purpose of the evidence at all and it must not be used in that way.

EVIDENCE ABOUT SEXUAL CONDUCT NOT CHARGED IN THE INDICTMENT

At various points in their evidence several complainants referred to episodes of sexual contact other than the specific charges enumerated in the indictment. For example, [KM] said that 'It happened on numerous occasions a lot more than what is indicated in my statement'; transcript 656.

This evidence is properly before you as tendency evidence, but where there is an allegation of sexually improper conduct other than that specified in the indictment, you should approach the evidence as follows:

(1) You must disregard that evidence entirely unless you are satisfied beyond reasonable doubt that the alleged sexually improper conduct in fact occurred.

(2) Even if you accept that such sexually improper conduct in fact occurred you must not substitute proof of such conduct not charged in the indictment for proof of one of the acts specifically charged in the indictment. However, provided you act on these directions you are entitled to consider such evidence in proof of one or more of the charges if it persuades you of an element of a charge." (29/06/2012 pp 15-17)

Later in summing up the trial judge made a number of references to the tendency evidence when summarising the Crown case. His Honour referred on a number of occasions to the consistency in evidence between the complainants, including in the following:

"The Crown puts it that you would believe that his version [Mark Lawrence's] about touching and hugging and kissing in the car. It was sporadic and consistent with the other approaches he has made to boys."(02/07/2012 p 17)

...

"Now the Crown made submissions to you about these allegations and in relation to [PM] she urged upon you, as she did in relation to the other complainants, that the direct evidence has to be supplemented by the fact that there are five independent complainants; that you would regard the conduct overall as demonstrating the tendencies of sexual interest in young men which the Crown alleges."(02/07/2012 p 33)

...

"The Crown put it to you that you would accept his evidence [PM's] about the Subaru, that there were driving lessons out to Kurnell, that the accused said there is no need for a swimming costume at some point, and that even though the accused ever denied going out to Kurnell, that you would not believe that. That there are three complainants all of whom have no contact with each other, all of whom describe being driven out to Kurnell. You would find that a stronger pointer to the sexual interest in having young boys such as [PM] alone in circumstances where he could be influential."(02/07/2012 p 34)

...

"The Crown says to you that, as with the other complainants, you would consider the evidence of [DL] in light of what the Crown alleges is a pattern of similar kinds of misconduct by the accused flowing from his attraction to young men."(02/07/2012 p 59)

...

"The Crown went through the various episodes with you involving gay videos, indecent assaults on the bed, oral sex, the swimwear, the shaving of him after being in the sauna and his interest in shaving is consistent with the [MH] matter. Again, the Crown says that the description of occasional quick episodes of fondling in quiet parts of the cinema described by [KM] are consistent with what Mark Lawrence describes."(03/07/2012 p 25)

...

"The Crown says you would accept the version given by [MH] who was independent of everybody else, much younger, no suggestion that he had got together and told a story in collaboration with [PM] or [KM] or the others. But you get this line again, the Crown says, 'You're so good looking you could be a model.' And this is what [MH] says and the Crown says, well, that is part of the pattern, that is part of his game plan with young men, just like with [KM]. And even though the accused is 60 by this time, he is still, the Crown says, actively interested in young men sexually. And the Crown says you would accept the version given by [MH] of the continuing and repeated sexual interest shown by the accused in the way that he said."(03/07/2012 p 36)

Finally, the trial judge made a number of further remarks in relation to the tendency evidence toward the conclusion of his Honour's summing up:

"The Crown case emphasises, to some significant degree, the number of complainants in this case and says that the sheer number of the complainants who come forward independently to give the versions which they do is very supportive of the Crown proposition that the accused has a tendency to be interested in young men in the ways that have been suggested.

There is no way that [MH], [PM], Lawrence, [DL] and so on got together and put their heads together to invent stories and, on the Crown approach to the case, you might expect that there would be some confusions and weaknesses in stories told about events years ago. But when you look at the overall pattern, you would be persuaded beyond reasonable doubt that all of these men, despite some minor confusions or irregularities in their evidence, are telling you the truth; that the character of Mr Doyle is not the character of the outstanding citizen he represents himself to be, rather it is the character of a man who has an interest in molesting young boys and youths over the years, running the sort of business he has; has had the opportunity to pick and choose amongst them; he has picked and chosen a number of attractive young men and he has, indeed, done the things which they say he did.

...

Except with one charge, the charges are brought within a range of dates, therefore it is difficult for Mr Doyle to defend himself against allegations which are uncertain about when they occurred and that perspective is one that you should bear in mind. On the one hand, you have got the Crown suggesting a pattern of interest in young men. On the other hand, you have got positive evidence of good character. So, you have to give consideration to those matters." (03/07/2012 pp 38-39)

The appellant's submissions

The appellant submitted that according to the tendency notices the prosecution did not seek to admit the evidence as coincidence evidence pursuant to s 98 of the Evidence Act. As such, he submitted that evidence of two or more events occurring was not admissible to prove a particular act or state of mind on the basis that it was improbable that the events were a coincidence.

Although the appellant accepted that the evidence relied upon by the Crown Prosecutor was admissible, he submitted that it was relied upon in such a way as to invoke coincidence reasoning.

The appellant submitted that the written and oral directions given by the trial judge in relation to the tendency evidence were erroneous in a number of respects. He submitted that it was left open to the jury to reason that he had one of the three listed tendencies if they were satisfied beyond reasonable doubt of any of the activities set out in subpars (a) to (cc) of the tendency notice. He submitted that the activities were not capable of proving any tendency unless coupled with a sexual act. For instance, he submitted that having "young male employees alone with him in his car", which was not disputed by the appellant, was not capable of proving any of the tendencies without a sexual act also having occurred in the car.

The appellant also submitted that the trial judge erred by permitting the jury to engage in "circular reasoning" in relation to the tendency evidence. This was said to have occurred as a result of the jury being directed to consider the evidence related to all of the charges when considering if the appellant had any of the three tendencies. The appellant submitted that it was impermissible to use the alleged occurrence of two events in order to prove that both events had occurred.

The appellant submitted that the trial judge erred by permitting the jury to engage in coincidence reasoning and by repeating and failing to correct instances in which the Crown Prosecutor relied on coincidence reasoning in her summing up. In that context he made particular reference to the portion of the summing up to which I have referred in par [98] above. The appellant submitted that coincidence reasoning was evident in the trial judge's reference to "the sheer number of the complainants" and also the repeated mention of the consistency in evidence as between the complainants, examples of which are set out at par [97]. It was submitted that the trial judge in doing so failed to correct coincidence reasoning.

The appellant submitted that the trial judge failed to direct the jury that they could not reason in the manner suggested by the Crown Prosecutor in her closing address. The appellant submitted that the Crown Prosecutor used impermissible coincidence reasoning in summarising the evidence of the complainants to identify a pattern. Examples said to demonstrate coincidence reasoning by the Crown Prosecutor are set out in par [92].

The appellant submitted that the trial judge erred by refusing to give a direction sought by senior counsel that the defence had no way of knowing whether the complainants had or had not spoken to one another. It was also submitted that the jury were not reminded that several of the complainants came forward following media attention regarding charges having been brought against the appellant. In fact such a reminder had been given in respect of KM and MH (see the directions under the heading "Complaint Evidence Generally" set out in par [187] below).

The appellant submitted that the trial judge failed to direct the jury that if they accepted the evidence of good character regarding the appellant, then they might have a reasonable doubt in relation to the tendency evidence. The appellant submitted that the trial judge obscured the proper use of tendency evidence and the onus of proof when he, as set out in par [98] above, referred to a "pattern of interest in young men" alongside "positive evidence of good character".

Finally, the appellant submitted that the trial judge failed to give a direction in accordance with R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 (Markuleski).

Senior counsel for the appellant submitted that a number of the listed activities in the tendency notice such as (a), (b), (s), (t), (x) and (z) were ordinary incidents of employment. He submitted that the first listed tendency was irrelevant except as a route to the second tendency. He also submitted that the third alleged tendency was relevant only as an aspect feeding into the second tendency. Senior counsel for the appellant submitted that for a tendency to be probative it needed to be a sexual interest upon which the person acts.

Senior counsel for the appellant addressed the distinction between tendency and coincidence evidence. He submitted in relation to tendency evidence that what has to be established separately is the tendency itself. As such, tendency evidence works temporally and incrementally in order to establish the alleged tendency. Conversely, he submitted that coincidence evidence invokes a different process of reasoning that involves identifying events that are often not disputed, from which a conclusion can be drawn that the alleged event is not a coincidence. He submitted that as soon as reference is made to aspects like the "sheer number of the complainants" then one is reasoning to coincidence rather than tendency.

Senior counsel for the appellant submitted that the events the subject of a specific count could not be used to satisfy oneself of a tendency regarding that count. He submitted that it made no sense to require that uncharged acts be proved independently beyond reasonable doubt, but not in respect of charged acts. He submitted that relying on the very thing that is sought to be proven throws away the exercise by introducing to the jury what amounts to legal nonsense. He submitted that if one was satisfied in relation to Count 1 then that could be used to establish a tendency in relation to Count 2. However, he asserted the trial judge erred by inviting the jury to have regard to the "evidence related to all the charges" when considering if the tendencies were made out. This, he said, pulled in everything including the charges which were to be proven.

Senior counsel for the appellant submitted that the trial judge erred by invoking a process of coincidence reasoning. He pointed to the trial judge's reference in summing up to the "sheer number of the complainants" as "supportive of the proposition that the accused has a tendency to be interested in young men". He submitted such statements by the trial judge and Crown Prosecutor did not reason incrementally to a tendency; instead, it was reasoning that it cannot be a coincidence that there were numerous people making allegations. He submitted that even if it was a case of coincidence evidence, warnings would be given against reasoning based on the sheer number of complainants.

Senior counsel for the appellant submitted that the trial judge's direction regarding sexual conduct not charged on the indictment, as set out in par [96] above, was instructive. He questioned that if the facts in issue that were the subject of the counts were permitted to be taken into account in considering tendency, why would a special direction be given in relation to the uncharged acts but not in relation to the charged acts? He accepted that the nub of the issue was that a direction should have been given as to the manner in which the charged acts could be used to establish tendency similar to the direction given in relation to the uncharged acts.

Senior counsel for the appellant reiterated that the trial judge erred by repeating submissions made by the Crown Prosecutor in relation to the number of complainants. He referred to the trial judge's statement, set out in par [97] above, that the "direct evidence has to be supplemented by the fact that there are five independent complainants" as an example of reasoning by the number of complainants and not by tendency.

In relation to a Markuleski direction, senior counsel for the appellant submitted that where the jury had been wrongly directed as to tendency, it is not appropriate to have regard to the jury's verdicts in coming to a conclusion about whether or not such a direction should have been given.

As to the issue of leave, senior counsel for the appellant submitted that while Ground 1 picked up factual issues, questions of law were imbedded in the ground. He submitted that an application to exclude the tendency evidence was made before Judge North. However, he accepted that the application was not renewed before the trial judge.

The Crown submissions

The Crown at the outset of its submissions noted that none of the matters relied upon in support of this ground of appeal were raised before the trial judge.

The Crown rejected the proposition that the activities alleged in the tendency notice were not capable of proving one of the tendencies unless coupled with a sexual act. The Crown referred to the alleged tendency to "have a sexual interest in young male employees" which was said to not require a sexual act. The Crown further submitted that the trial judge's written directions, set out at par [93] above, made it apparent that the jury could not move from finding one of the activities proved to one of the tendencies proved without being satisfied beyond reasonable doubt that the proved acts established the tendency.

The Crown submitted that the trial judge's directions regarding tendency evidence did not lead to circular reasoning. The Crown submitted that unlike R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487, upon which the appellant relied, the present case did not involve an assumption as to the facts that were to be proved. The Crown relied on a statement in R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 that the force of coincidence evidence arises from the co-existence of multiple pieces of evidence, where there might not be satisfaction beyond reasonable doubt from a single piece of evidence considered alone. It was submitted that similar reasoning applies to tendency evidence.

The Crown submitted that none of the comments made by the trial judge in his summing up in relation to the Crown's argument involved coincidence reasoning. The Crown also submitted that none of the material referred to by the appellant either formed part of his Honour's directions or involved coincidence reasoning, and if it had, it did not give rise to a miscarriage of justice. In this regard, the Crown relied particularly on the judgment of Simpson J in KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226. The Crown emphasised that the trial judge clearly directed the jury as to how they could use tendency reasoning as set out at par [93] above.

In relation to a direction regarding possible communication between the complainants, the Crown submitted that the trial judge gave reasons for refusing to give such a direction, essentially that the issue had not been explored in evidence. The Crown also submitted that the trial judge was not asked to remind the jury of complainants coming forward after publicity regarding charges having been brought against the appellant and that the absence of such a reminder could not have caused the trial to miscarry.

The Crown submitted in relation to the trial judge's direction regarding good character and tendency evidence that the passage referred to by the appellant, set out at par [98] above, should be considered in its full context. The Crown emphasised that following the trial judge's summing up the Crown Prosecutor suggested his Honour deal with each of the appellant's character witnesses. The Crown submitted that senior counsel for the appellant at the trial accepted the trial judge's invitation to respond regarding character witnesses by asking for the evidence of Mr McWhinney to be referred to and seeking certain directions as to the use to be made of the evidence of Ms Scott and Ms Johnston (see Ground 9 below). The Crown submitted no other objection was taken to the direction.

In relation to the appellant's submission that the trial judge failed to give a Markuleski direction, the Crown submitted that the written directions set out at par [94] above were appropriate to raise the issues referred to in that case. The Crown submitted that even if the direction was not appropriate, there could not have been a miscarriage of justice in the present case where guilty verdicts were returned on all counts.

At the hearing, counsel for the Crown reiterated that the trial judge gave a direction of the type in Markuleski, and further, in a case where there were no acquittals the issue did not assume anything like the same importance.

Counsel for the Crown emphasised that the trial judge's summing up had to be read as a whole. She stated that the appellant's written submissions were replete with references to parts of the summing up but that it needed to be read in its entirety.

Counsel for the Crown accepted that to prove a tendency in the nature of the second listed tendency it was necessary to prove a charged or an uncharged offence. She accepted that the activities referred to by the trial judge in his summing up, set out at par [96] above, would not have been enough to be relied on to support the tendency notice. She accepted that this matter should have been made clear to the jury. However, she submitted that as a matter of logic and the manner in which the jury were directed, this issue would have been clear to the jury. She submitted that a specific direction was not required.

The legislative framework

The admission of tendency and coincidence evidence is governed by ss 97, 98 and 101 of the Evidence Act which relevantly provide as follows:

"97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

...

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."

Consideration

As I indicated, it was common ground between the appellant and the Crown that to establish the second tendency referred to in the tendency notice, namely, to engage in sexual activities with young male employees, it was necessary to prove a charged act or a sexual offence with such an employee. Perhaps more accurately in the context of this case, to prove the second tendency it would be at least necessary for the jury to, first, be satisfied beyond reasonable doubt that the appellant engaged in one of the activities referred to in subpars (j) to (o) of the tendency notice and, second, to also be satisfied beyond reasonable doubt that the engagement in such activities proved that the appellant had the tendency alleged in par (2) of the tendency notice. The position, in my opinion, was the same so far as the third tendency in the notice was concerned, having regard to the fact that the notice states that the purpose of obtaining access to young male employees was to engage in sexual activity with them.

However, that does not mean that the other activities described in the tendency notice or the first listed tendency were irrelevant. Whilst some of those activities, even if proved beyond reasonable doubt, may well have been insufficient to establish the second tendency, the jury if satisfied that a number of those events occurred could have concluded beyond reasonable doubt that the appellant had a sexual interest in young male employees. This conclusion would have been a relevant factor in their deliberations of whether they were satisfied beyond reasonable doubt that one of the charges against the appellant was established.

There is no doubt that to the extent reliance was placed on uncharged sexual conduct in establishing the tendency, that conduct had to be proved beyond reasonable doubt: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [41], [46] and [196]; DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206 at [19] and [30]. The trial judge explained this in his direction to the jury in the part of his summing up headed "Evidence About Sexual Conduct Not Charged In The Indictment", which I have set out in par [96] above.

The appellant did not cavil with the directions given in relation to the uncharged acts, but submitted that the jury should have been specifically directed that the charged acts themselves could not be used to establish the tendency unless the jury was satisfied beyond reasonable doubt that one or more of such charged acts occurred, without having regard to the tendency evidence. He accepted, for example, that if the jury was satisfied beyond reasonable doubt in respect of the charges relating to Mr Lawrence, they could use that as tendency evidence in considering the charges against at least PM and DL.

The trial judge's direction in fact did not deal with the potential use of the charged acts as tendency evidence at all. In the direction to which I have referred in par [96], his Honour dealt with matters that did not constitute sexual offences (see the third paragraph of his direction under the heading "Tendency Evidence" set out in par [96] above). His direction as to how that evidence could be used seemed to relate only to establish tendency alleged from those particular acts.

The written directions were in the same form.

At the outset of his written directions the trial judge explained that the jury had to be satisfied beyond reasonable doubt of every element of a charge and that they must be satisfied beyond reasonable doubt that each complainant was an honest witness and was reliable as to the vital parts of his evidence before finding the appellant guilty. They were also told that subject to his directions regarding tendency evidence, they were to consider the evidence in relation to each count separately. There was no suggestion that a conviction in respect of any of the counts could be used as tendency evidence in respect of the other counts.

I have set out above the address of the Crown Prosecutor so far as it related to tendency evidence. The Crown submitted to the jury that those portions of the tendency notice which referred to activities involving sexual misconduct could be used as showing the tendencies in the notice, but stated that the tendency had to be proved beyond reasonable doubt. The trial judge also made it clear that to prove the tendency beyond reasonable doubt the jury had to be satisfied beyond reasonable doubt both that the activities said to have given rise to the tendency occurred and that those activities gave rise to the tendency in question.

In these circumstances the trial judge, in my opinion, did not fall into error in not directing the jury that if and only if they were satisfied beyond reasonable doubt that one or more of the charged acts occurred without having regard to the evidence relating to the other charged acts, they could then use that conclusion as tendency evidence in respect of the other charges if satisfied beyond reasonable doubt that the tendency was established. In one sense a failure to give such a direction was favourable to the appellant, as the direction did not suggest that evidence relating to the charged acts could be used to establish the tendencies complained of.

I do not think this position is affected by the fact that the trial judge directed that the jury should not look at the acts in isolation but consider all the evidence to determine if the acts took place. The acts in question were those summarised in the direction and the direction emphasised the need for satisfaction beyond reasonable doubt that those acts in fact took place.

The proceedings on sentence

During the proceedings on sentence, victim impact statements of ML, PM, MH, DL and KM were tendered. The statements of ML, PM and MH were also read to the Court.

In the appellant's case, a report from Dr Stephen Allnutt, a forensic psychiatrist was tendered, as was a report from Dr Peter Trefely, the appellant's general practitioner. A letter from the appellant's brother Denis Doyle was also tendered.

The appellant was 69 years old at the time of sentence. Dr Allnutt noted that the appellant came from a family of three whose parents remained together. The appellant had not been exposed to sexual violence or physical abuse but there had been domestic violence in his parents' relationship. He obtained a school certificate at age 16, but left school to make a name for himself. Dr Allnutt reported that the appellant had never been unemployed and had done well financially. He had owned movie theatres and worked in light entertainment and television. He had donated to charity throughout his life.

The psychiatrist considered that the appellant could not be regarded as manifesting "a significant depressive, anxiety or psychotic disorder although he could be regarded as manifesting symptoms of an adjustment disorder with a depressed and anxious mood secondary to his current circumstances" (AB 810). Dr Allnutt noted that the appellant described "some claustrophobia in confined spaces" but he did not manifest significant medical problems (AB 810).

Dr Trefely referred to the appellant suffering from hypercholesterolaemia and borderline hypertension, but observed that he was in comparatively good health for his age.

The appellant gave evidence during which he maintained his "complete innocence." He referred to the charges as being "hideous and disgusting allegations" (AB 2756).

The appellant did not have any previous criminal convictions.

Remarks on sentence

For the purpose of sentencing the appellant, the Judge was obliged to determine the relevant facts. His Honour was confined to finding facts that were not inconsistent with the verdicts of the jury. The facts found are as follows (ROS pp 1-4):

"Counts 1, 2 and 3 relate to the victim [ML]. [ML] was working when he was fourteen or fifteen in the Kogarah Mecca Cinema as a projectionist. The three offences consist of his employer, Mr Doyle, taking advantage of the opportunity of [ML] being involved in the process of presenting the film to come up behind him and to grope his genitals through openings at the side of his uniform. There were three separate offences of this kind.

As with all of the other victims [ML] was seduced and controlled by Mr Doyle, who is a very charming man, not violent, but a man with a persistent interest in molesting boys. [ML] had done nothing to precipitate the misconduct except to be, as the other lads were, attractive teenagers.

...

The victim [PM] was named in counts 4 and 5 of the indictment. He was slightly older, sixteen at the relevant time. Like the others he came in contact with Mr Doyle through the Kogarah Mecca Cinema. His sister was a juvenile lead in some patomime shows that Mr Doyle put on at the theatre. In short the charges were (count 4) during a car ride to the accused's home he grabbed him on the penis through his clothes; count 5, when he had him back at his house, semi drunk, the offender started to masturbate [PM] and they ended up in the same bed, a result engineered by the offender.

...

The victim [DL], likewise, came to be known to the offender through the cinema. The charges numbered 6 to 11 on the indictment involved the offender masturbating [DL] and vice versa. Count 7 - at Kurnell after he had taken photographs of [DL], the offender started to fondle then masturbate him. Counts 9 and 10 occurred when [DL] was at the offender's home. While watching a pornographic film, the accused masturbated the boy and asked him to do the same to him. The next morning there was again masturbation and fondling. Counts 10 and 11 involved the same kind of conduct. Count 11 involved the offender asking [DL] to have homosexual intercourse in the form of fellatio. It is unnecessary to dilate upon the details of all those matters.

...

The next victim sequentially down the indictment and in time was [KM]. The offender had the most intense relationship with him and the largest number of charges on the indictment relate to contact between the offender and [KM]. These are counts 12 to 34, Count 2 in 1989 and count 34 at the end of 1990.

...

Mr Doyle is a theatrical man, a very talented musician, a man able to move in all sorts of social circles and to be friendly with people. He was a very competent business person, able to conduct quite an extensive business with a number of employees. Generally he was able to present himself as a man of the world. By contrast [KM] was aged thirteen at the time of the first episodes, counts 12 to 19, which include variously sexual touching on the penis, masturbation a number of times, fondling him on the penis in the swimming pool, undressing him and fondling his penis, trying to insert a finger into his anus, performing fellatio on him, masturbating him, showing him gay pornographic videos and the like. One event involved going into a sauna and then after the sauna shaving the boy's genitals as he masturbated him. He then took photographs of him.

...

[MH] is the last in time of the victims, the time frame for his matters being within 2003 when he was working, like many of the others, as an usher or similar at the Kogarah Mecca cinema. Like the others, he was an attractive young man and the lapse of time between 1980 and 2003 demonstrates the persistence of Mr Doyle's interest in boys or young men. He would drive [MH] home from time to time. He attempted to 'groom' him, often telling him how handsome he was. At one stage he groped him while they were in a toilet cubicle in the cinema and on another occasion in the candy storeroom. That gives a broad picture of the offences.

It is significant that Mr Doyle was the employer. I am careful when I read the terms of the indictment, not to double count any element of any particular charge. This is an important legal matter, but it is a background to all these charges that Mr Doyle was in a position of authority. He was, as I have said before, a charming man, easily able to influence boys, and he was able to get on well with their parents, designedly so to assist in access to their sons."

During his sentencing remarks, the observations and findings made by the Judge included the following:

(a) the appellant continued to protest his innocence and even after verdict asserted his disgust at the alleged behaviour. The appellant had forfeited any leniency which would have been shown to him if he had confessed and indicated his remorse (ROS 7);

(b) any claims to good character could not be sustained after the appellant committed the offences against ML in 1980 and 1981 (ROS 8);

(c) the delay in the prosecution of the offences was not a matter of mitigation as "it [had] at all stages been open to [him] to come forward and admit his misconduct" (ROS 8);

(d) the defence submissions that the allegations against the appellant caused him "enormous stress" and put him through "an emotional hell" were hypocritical and without merit (ROS 8); and

(e) he was satisfied beyond reasonable doubt that each of the complainants had suffered over the succeeding years significant psychological damage as a result of the appellant's treatment of them (ROS 9-10).

His Honour took into account the following matters in mitigation:

(a) the offences were not offences of violence, nor did the appellant employ threats;

(b) the appellant had no prior convictions for any criminal misbehaviour;

(c) the appellant had been actively philanthropic in the St George area over the years, making significant charitable donations; and

(d) by the time the appellant was to be released, "he will be approaching, or in his mid seventies, and not the charming figure of authority he may have been to teenagers twenty years ago" (ROS 11). His Honour considered it was unlikely that the appellant will commit further offences in the future, but this was "a guarded observation since his misconduct [had] been persistent over decades" (ROS 11).

Special circumstances were found justifying a variation in the statutory ratio between the non-parole period and the balance of term of the sentence being the appellant's first prison sentence and "as a convicted paedophile, the [appellant] will justifiably be in fear of physical abuse inside prison" (ROS 11).

Argument

There is one ground of appeal being the assertion that the Judge erred in failing to accumulate the offences by an appropriate period and imposed an overall sentence which was manifestly inadequate both with respect to the head sentence and to the minimum term. The Crown submitted that in cases of multiple child sexual assault, the appropriate course is to accumulate the individual sentences.

The Crown asserted that not only were the sentences for offences committed against some complainants, entirely subsumed by sentences for offences committed against other complainants, there was concurrency between the sentences imposed with respect to the sexual offences committed against individual complainants. The Crown contended that one of the matters which may have contributed to the overall inadequacy of the sentence was the misplaced emphasis by the Judge on the absence of violence in the offending which was not a mitigating factor. The total effective sentence, the Crown said, failed to adequately reflect the totality of the appellant's criminal conduct. The Crown referred to the following features:

(a) the appellant was found guilty following a trial;

(b) the maximum penalties for the 38 offences ranged from 2 years to 10 years;

(d) the offences spanned 23 years;

(e) KM was 13 years old when the first set of offences, including aggravated sexual intercourse with a child occurred;

(f) in a number of instances the appellant was the complainant's employer and as such was in a position of authority (where this is not an element of the offence); and

(g) the Judge found that substantial psychological harm had occurred to all five complainants.

The appellant submitted that the Crown did not raise any error in point of principle but complained about accumulation, a matter essentially within the discretion of the trial Judge. The appellant referred to the Crown not addressing in its submissions that a sentencing Judge must take into account sentencing patterns that existed at the time of the offences.

The appellant pointed out that counts 1-3 were committed in 1981 - 1982 and were offences contrary to s 81 Crimes Act 1900 (NSW). The appellant observed that the sentencing practice at the time was to fix the non-parole period at somewhere between half and a third of the term of the sentence. The appellant said that s 81 Crimes Act encompassed acts of indecency, including digital anal penetration and fellatio, which were more serious than the appellant's offending in counts 1-3. The appellant referred to Sentencing Sex Offenders in New South Wales, An Interim Report by Ivan Potas which noted at p 66 that in 1974 "approximately one-third of those convicted for [indecent assault] received custodial sentences" and for this offence the most likely result was that an offender was placed on a recognizance.

The appellant argued that a review of all of the head sentences and non-parole periods imposed on him suggested that he received penalties at the upper end of the range of sentences that would be appropriate according to the sentencing patterns that existed at the time of the offence. The appellant submitted that the Crown had not demonstrated that the practice of running sentences concurrently was not open to the Judge when sentencing for offences that occurred in the 1980s and with the exception of the final four counts involving MH, the offences were committed before the decision in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The appellant cited Button J's remarks in Magnuson v R [2013] NSWCCA 50 at [143] that "the approach to questions of cumulation and concurrence was more lax before the handing down of the decision in Pearce v R in 1998."

The appellant submitted that the Judge correctly took into account and imposed sentences that reflected the sentencing practices of the time when the offences occurred. When all of the circumstances of the offences and of the appellant were taken into account, the sentences were not manifestly inadequate and the Crown appeal should be dismissed.

Consideration

It is well established that the appellant was to be sentenced in accordance with the sentencing standards that applied at the time of his offending. In recent years, detailed consideration has been given by this Court to sentences imposed for offences involving indecent assault upon children that were committed in the 1970s, 1980s and 1990s. In Magnuson, Button J (with whom McClellan CJ at CL and Bellew J agreed) carefully considered statistical material from the 1970s and concluded at [91] that "the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now." Button J observed at [92] that, "before 1981, indecent assault encompassed many sexual acts that fall within the definition of sexual intercourse today." His Honour noted that there had been a steady increase in sentences for serious offences across the board and sexual offences had not been excluded from that process. Button J said at [117]:

"Over the past 25 years, there have been a number of developments within the criminal justice system of New South Wales that have led to a lengthening of sentences to be served, both with regard to sexual offences and offences generally. Without seeking to be exhaustive, they include: the creation of the statutory ratio between the non-parole period and the head sentence by way of the Probation and Parole (Serious Offences) Amendment Act 1987, and its expansion to all offences by way of the Sentencing Act 1989; the abolition by the same Act of remissions; the creation of "natural life" sentences; the steady increase in maximum penalties, including but not limited to sexual offences; the judgment of the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, which led to more focus upon accumulation and partial accumulation when sentencing for more than one offence; most of the guideline judgments of this Court, commencing with R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; the watershed decision of this Court in R v AEM [2002] NSWCCA 58, which had the effect that sentences for serious sexual offences were thereafter lengthier; and finally, the commencement of the regime of standard non-parole periods in 2003."

In PWB v R [2011] NSWCCA 84, RS Hulme J (with whom Beazley JA and Harrison J agreed) provides a table of cases from 1988 until before 1 January 1999 involving offences of indecent assault and assault against a person under the age of 10 years, contrary to s 61E and s 61M(2). RS Hulme J accepted that the sentencing standards applicable at the time of the offending (1987 - 1988 and 1991) were more lenient than in 2011. His Honour observed at [64]:

"I have referred above to the principle that the Applicant was entitled to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR [2002] NSWCCA 129. One aspect of that was that during 1987 and 1988 the Probation and Parole Act 1983 was in force. Under that Act the usual proportion between non-parole periods and the total term was much less than it is today under the Crimes (Sentencing Procedure) Act 1999 . The non-parole period was commonly between one-third and one half of the total sentence - Dousha v R [2008] NSWCCA 263 at 35; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39]."

In the present case, the Judge was aware that the appellant was to be sentenced in accordance with the sentencing standards that applied at the time the offences were committed. The Judge said (ROS 5):

"The sentences I impose relating to the various victims will vary, as I have said, partly because the law requires that I impose penalties reflecting the sentencing practices of the time when the offence occurred. These offences occurred over decades, during which period parliament increased penalties for some offences..."

None of the material before this Court establishes that, having regard to the sentencing practice at the time of the offending, the sentence imposed for any individual offence by the Judge was manifestly inadequate. The real issue is whether the total effective sentence failed to adequately reflect the totality of the appellant's criminal conduct.

Although the statements of the High Court as to the operation of the principle of totality in Mill v R (1988) 166 CLR 59; 36 A Crim R 468: Pearce v R [1998] HCA 57; (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616 post dated the appellant's offending in counts 1-11, the principle applied to multiple offences committed in the 1980s. In R v Holder & Johnston [1983] 3 NSWLR 245 at 260; (1983) 13 A Crim R 375 at 389, Street CJ described the principle as follows:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

The determination of whether a sentence is to be imposed concurrently or consecutively is a discretionary one: R v Hammond [2000] NSWCCA 540, but "that discretion is generally circumscribed by a proper application of the principle of totality": R v MMK [2006] NSWCCA 272; 164 A Crim R 481, the Court (Spigelman CJ, Whealy and Howie JJ) at [13]. As Howie J stated in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

The sentences imposed by the Judge for counts 1-11 and 35-38 commenced on 4 July 2012. These counts concerned the offences committed in 1980 - 1982 (victim ML), 1985 (victim PM), 1986 - 1987 (victim DL) and 2003 (victim MH). Each sentence was imposed as a fixed term, the longest being for 4 years (counts 35-38 victim MH), which subsumed the fixed terms for all of the other sentences commencing on 4 July 2012. The practical effect of structuring the sentences in this way is that the appellant has not been punished in any real sense for his criminal conduct towards ML, PM and DL. Although the Judge recognised that the appellant's offending against KM involved offences contrary to s 61E(1A) (indecent assault) with a maximum penalty of 6 years imprisonment and offences contrary to s 66C(2) (sexual intercourse) with a maximum penalty of 10 years imprisonment, the non-parole periods imposed for the sexual intercourse offences (counts 17, 18, 21, 22, 28 and 29) are totally subsumed by the fixed terms imposed for the 15 indecent assault offences committed against KM.

Furthermore, the sentences for each of the s 66C(2) offences against KM are to be served concurrently although they were committed in 1989 and 1990 and involved fellatio and the insertion by PD of a finger into KM's anus who was 13 or 14 years old. The appellant has not, in my view, been punished in any real sense for this serious and separate criminal conduct.

In my opinion, an overall sentence of 7 years with a non-parole period of 4 years 6 months does not adequately reflect the totality of the appellant's sexual misconduct against his five young victims, notwithstanding the allowance that must be made for the sentencing standards that applied at the time of the offending and to the appellant's subjective circumstances. The sentence is manifestly inadequate.

There is another matter that requires attention. The Judge declined to set non-parole periods for the offences contrary to s 61M(1) Crimes Act (counts 35, 36, 37 and 38). As these offences were committed after 1 February 2003, a standard non-parole period of 5 years applies and the Judge was obliged by the terms of s 45 Crimes (Sentencing Procedure) Act 1999 to set a non-parole period for these offences. There is no discretion: SGJ v R; KU v R [2008] NSWCCA 258 at [75] - [78].

The question remains as to whether the Court should intervene and re-sentence the appellant. There is a residual discretion to decline to interfere even though the sentence is manifestly inadequate.

In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Their Honours at [36] described the primary purpose of laying down principles as a "limiting purpose" and said:

"It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."

Their Honours observed that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honours said at [43]:

"They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."

The Crown submitted that there are no discretionary reasons to dismiss the appeal whereas the appellant contended that the residual discretion should be exercised having regard in particular to the appellant's age and the trauma he has suffered in custody and the age of the offences with the exception of the last four counts. An affidavit from the appellant was tendered, as was an affidavit of his solicitor.

In his affidavit, the appellant describes the stress and panic that he suffered as a result of the suspected murder of an inmate in the cell next to him, the deterioration of his health given his age and the difficulties he experiences in custody as an elder prisoner.

The appellant does not suggest that treatment for the conditions he describes will not be available to him in prison. Unfortunately, it is often the case that offenders who commit sexual offences against children are not sentenced until they are in their senior years and the offences have some antiquity. The delay in determining the Crown's appeal results from the complexity of the issues raised in the appellant's appeal against conviction. I do not consider that by allowing the appeal, the guidance to sentencing Judges comes at too high a cost in terms of "justice to the individual".

For the purpose of re-sentencing, the objective and subjective considerations to be taken into account are clear from what I have written to this point. I would allow the appeal and re-sentence the appellant to an overall term of imprisonment for 9 years. I confirm the Judge's finding of special circumstances but have determined that a non-parole period of 6 years 6 months is the minimum period that the appellant must spend in custody in order to appropriately reflect the criminality involved in the offences: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63].

Orders

Accordingly, the orders I propose are as follows:

1. Crown appeal allowed.

2. Quash the sentences imposed by Woods DCJ for counts 17, 18, 21, 22, 23, 28 and 29 being offences contrary to s 66C(2) Crimes Act.

3. In lieu thereof, for each count sentence the appellant to imprisonment for 5 years consisting of a non-parole period of 2 years 6 months commencing on 4 July 2016 and expiring on 3 January 2019 with a balance of term of 2 years 6 months commencing on 4 January 2019 and expiring on 3 July 2021.

4. Quash the sentences imposed by Woods DCJ for counts 35, 36, 37 and 38 being offences contrary to s 61M(1) Crimes Act.

5. In lieu thereof, for each count sentence the appellant to imprisonment for 6 years consisting of a non-parole period of 4 years commencing on 4 July 2012 and expiring on 3 July 2016 with a balance of term of 2 years commencing on 4 July 2016 and expiring on 3 July 2018.

6. Confirm the sentences imposed by Woods DCJ for counts 1-16 inclusive, 19, 20, 24, 25-27 inclusive and 30-34 inclusive.

The earliest date that the appellant will be eligible for release on parole is 3 January 2019.

CAMPBELL J: For the reasons given by each of their Honours, I agree with Bathurst CJ and with Price J respectively that the conviction appeal should be dismissed and that the Crown appeal on sentence should be allowed. I agree with the orders proposed by Price J re-sentencing the offender.

**********

Decision last updated: 20 February 2014

Medium Neutral Citation:	Doyle v R; R v Doyle [2014] NSWCCA 4
Hearing dates:	11 July 2013
Decision date:	20 February 2014
Before:	Bathurst CJ at [1]; Price J at [432]; Campbell J at [472]
Decision:	1 Appeal against conviction dismissed. 2 Crown appeal against sentence allowed. 3 Quash the sentences imposed by Woods DCJ for counts 17, 18, 21, 22, 23, 28 and 29 being offences contrary to s 66C(2) Crimes Act. 4 In lieu thereof, for each count sentence the appellant to imprisonment for 5 years consisting of a non-parole period of 2 years 6 months commencing on 4 July 2016 and expiring on 3 January 2019 with a balance of term of 2 years 6 months commencing on 4 January 2019 and expiring on 3 July 2021. 5 Quash the sentences imposed by Woods DCJ for counts 35, 36, 37 and 38 being offences contrary to s 61M(1) Crimes Act. 6 In lieu thereof, for each count sentence the appellant to imprisonment for 6 years consisting of a non-parole period of 4 years commencing on 4 July 2012 and expiring on 3 July 2016 with a balance of term of 2 years commencing on 4 July 2016 and expiring on 3 July 2018. 7 Confirm the sentences imposed by Woods DCJ for counts 1-16 inclusive, 19, 20, 24, 25-27 inclusive and 30-34 inclusive.
Catchwords:	CRIMINAL LAW - appeal against conviction - sexual offences alleged by multiple complainants - tendency evidence - circular or coincidence reasoning - whether the trial judge misdirected the jury as to tendency. CRIMINAL LAW - appeal against conviction - evidence of complaint - whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence. CRIMINAL LAW - appeal against conviction - sexual experience of complainant - s 293 Criminal Procedure Act 1986 - whether error in refusing leave to cross-examine complainant about sexual experience. CRIMINAL LAW - appeal against conviction - s 38 Evidence Act 1995 - whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence - whether error in directions. CRIMINAL LAW - appeal against conviction - whether the trial judge erred in declining re-examination to re-establish credibility. CRIMINAL LAW - appeal against conviction - whether impermissible cross-examination of the appellant's character witnesses. CRIMINAL LAW - appeal against conviction - whether summing up was fair and balanced - whether the trial judge failed to adequately put the defence case to the jury. CRIMINAL LAW - Crown appeal against sentence - whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.
Legislation Cited:	Crimes Act 1900 (NSW), ss 61E, 61M, 66C, 66D, 78Q, 81 Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10, 28 Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 (NSW), ss 130A, 293 Evidence Act 1995 (NSW), ss 11, 38, 39, 46, 60, 66, 97, 98, 101, 102, 103, 106, 108, 135, 136, 137, 192
Cases Cited:	Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 Abdel-Hady ('Sa') v R [2011] NSWCCA 196 BP v R [2010] NSWCCA 303 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Carbines v Powell (1925) 36 CLR 88 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Col v R [2013] NSWCCA 302 DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206 GEH v R [2012] NSWCCA 150 Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Johnson v R (2004) 78 ALJR 616 Kanaan v R [2006] NSWCCA 109 KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226 KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552 Magnuson v R [2013] NSWCCA 50 Mill v R (1988) 166 CLR 59; 36 A Crim R 468 Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Pemble v The Queen (1971) 124 CLR 107 PWB v R [2011] NSWCCA 84 R v Berrigan (Court of Criminal Appeal (NSW), 7 October 1994, unreported) R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 R v Hammond [2000] NSWCCA 540 R v Holder & Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375 R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 R v Meher [2004] NSWCCA 355 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Morgan (1990) 30 NSWLR 543 R v Ryan (No 7) [2012] NSWSC 1160; (2012) 218 A Crim R 384 R v Souleyman (1996) 40 NSWLR 712 R v Sukkar [2005] NSWCCA 54 R v Velevski (No 2) (1997) 93 A Crim R 420 R v Veverka [1978] 1 NSWLR 478 R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51 R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629 SGJ v R; KU v R [2008] NSWCCA 258 Shanahan v Scott (1957) 96 CLR 245 Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
Texts Cited:	J D Heydon, Cross on Evidence, (9th Aust ed 2013)
Category:	Principal judgment
Parties:	Appeal against conviction Philip William Doyle (Appellant) Crown (Respondent) Appeal against sentence Crown (Appellant) Philip William Doyle (Respondent)
Representation:	Counsel: T A Game SC, G A Bashir and P Dwyer (Philip William Doyle) M Cinque (Crown) Solicitors: Uther Webster & Evans (Philip William Doyle) S Kavanagh - Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/194799
Publication restriction:	Non-publication orders in respect of all complainants excluding Mark Lawrence, all witnesses the naming of whom could identify the complainant, all witnesses who were juveniles at the time of an offence and the witness MB.
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-08-24 00:00:00 Before: Woods QC DCJ File Number(s): 2009/194799