Hall v The Queen

Case •

[2021] NSWCCA 20

•

05 October 2018

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hall v R [2021] NSWCCA 20
Hearing dates: 30 October 2020
Date of orders: 03 March 2021
Decision date: 03 March 2021
Before: Harrison J at [1]
R A Hulme J at [58]
Ierace J at [61]
Decision:

(1)    Grant leave to appeal against conviction but dismiss the appeal.

(2)    Grant leave to appeal against sentence but dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – historical child sexual offences – trial by judge alone – where applicant a teacher in school attended by complainants – position of trust – unrepresented applicant – where applicant convicted on a majority of counts on the indictment – whether verdicts unreasonable – whether evidence unfairly admitted – whether applicant incompetently represented by counsel at trial – where applicant’s principal contention was that trial judge failed to conclude that complainants had motive to lie

CRIMINAL LAW – appeal – appeal against sentence – where applicant raises manifest excess as a ground without identifying legal error – where applicant’s principal argument asserting manifest excess was that he was wrongly convicted

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Cases Cited:

McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52

The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

WG v R; KR v R [2020] NSWCCA 155

Category:Principal judgment
Parties: Edward Anthony Hall (Applicant)
Crown (Respondent)
Representation:

Counsel:
E Wilkins SC (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2016/225172
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
05 October 2018
Before:
Gartelmann SC DCJ
File Number(s):
2016/225172

Judgment

  1. HARRISON J: Edward Hall appeals against his convictions and sentence following a trial before his Honour Gartelmann SC DCJ sitting in Newcastle without a jury. Mr Hall was found guilty on 5 October 2018 of 21 child sex offences that had been committed between 1973 and 1986 when he was a lay teacher at St Pius X secondary school at Adamstown. All of the complainants were students at the school when the offences were committed.

  2. Mr Hall appeared in this Court without legal representation or assistance. He has filed and relies upon several documents in handwriting that do not specifically describe his grounds of appeal. However, senior counsel for the Crown has identified what appear to be the several bases upon which Mr Hall wishes to challenge his convictions and his sentence. Mr Hall accepted the Crown’s characterisation of these grounds as the following:

  1. Ground 1: The verdicts are unreasonable and cannot be supported by the evidence.

  2. Ground 2: Mr Hall was unable to receive a fair trial.

  3. Ground 3: Tendency evidence was unfairly admitted in the trial.

  4. Ground 4: Mr Hall’s trial was incompetently conducted by his legal representatives.

  1. Mr Hall was sentenced to an aggregate sentence of imprisonment of 20 years with a non-parole period of 13 years and 6 months commencing on 5 October 2018 and expiring on 4 April 2032. Although Mr Hall’s submissions on sentence incorporated his insistence that he was not guilty, so that he should never have been sentenced at all, the burden of his complaint about the sentence is that it was manifestly excessive.

Ground 1

  1. Mr Hall contends that all of the complainants were unreliable witnesses, that they had fabricated their evidence, that their motives were spite and revenge and the desire to achieve some monetary compensation from the State. He contended that they colluded with each other and that their evidence was accordingly tainted. Mr Hall also asserts that there was no evidence of opportunity or desire on his part to commit the offences and that, together with his prior good character, there was a reasonable doubt as to his guilt.

  2. Mr Hall’s Grounds of Appeal filed on 19 May 2020, in the form of submissions, commenced with the following assertions:

“I am completely innocent of the charges against me, and on all charges, I pleaded not guilty. I am a victim of a clear miscarriage of justice from falsehoods and lies that were clearly concocted, and revenge from years past. Spite was also involved. There is also fraud involved with the complainants, seeking a free handout from the State government under false and spurious pretences. I had heard of this before, even being prior anonymously informed of the allegations, (then charged). The allegations were also the result of collusion and therefore contaminated evidence. Copycat claims followed. This is a well-abused format. His Honour, the Judge had no knowledge of the procedures of this school, and the fact that instances and events that were cited were fabrications and falsehoods. There was conflicting false evidence; wrong rooms; wrong events and wrong people cited. Also concocted and impossible circumstances without my presence there. I was not properly defended by my counsel. No witnesses on my behalf were ever called. Headmaster, teachers, staff, parents and boys were not called to give evidence of any type. This prejudiced the case against me severely and botched [?] the trial.”

  1. In oral submissions in this Court, Mr Hall referred to a number of matters that are arguably capable of being seen as referable to this ground of appeal as well as his allegation that he was incompetently represented. For the purposes of this ground of appeal, Mr Hall emphasised the following matters, among others.

  2. Mr Hall submitted that his accusers had a grudge against him that both explained their complaints and tainted their evidence. He said this:

“First of all, we were dealing with nine people who have axes to grind, and I accept the fact openly that we were a very strict school. We were a good school but not a great one, and the headmaster when he employed me wanted somebody who would lift the academic profile of the school as well as the behaviour and discipline, as the school had a very bad name and was developing a worse one in bullying.

…

Now, a number of the people who have accused me are bullies whom I took on. To a case in point, OP - do you have the script in front of you?

HARRISON J: Yes.

APPLICANT: Right. OP was a boy who I did not teach and he was in the sport, part of which I supervised, and I had three incidents to deal with him at Merewether pool, and he claims they were at beach activities. They weren't at beach activities. They were doing the surf lifesaving course, and on one occasion he was found to be smoking behind the dressing shed with a group of others. I referred them to the sports master.

On another occasion, an act of bullying with a new boy in the school who had come from Northern Ireland that week. He put axle grease on the boy's arm and back, and of course he with another boy did it, and what happened was the boy went berserk. I had to deal with it straightaway. A lady in the crowd came up to me and said, ‘Those two boys did it.’ I referred the matter straight to the headmaster because the parents came in the next day and withdrew the boy from the school.

There was another occasion where he came up to me after completing his work and said, ‘May we go into the surf?’ Now, it was a strict rule that no boy was to enter the surf. Now, there were several good reasons for it, one of which is they were not insured, but I said, ‘No, you may not enter the surf. You may use the pool anywhere we're not,’ and I went back to running the swim, the long swim that I was running. I looked across to see him and two other boys entering the surf. I referred them to the sports master. They were taken off the sport.

Now, there is a good example where these two or three had an axe to grind and took it out on me personally because I stood by the rules of the school and made sure that standards were followed. Now, it's a very sad indictment that somebody like that, who was probably at the time in year 9, could not take a correction by one of the masters, and by the way, at the time I was a very junior teacher. I think I was in my second or third year, so I had to refer it on, I couldn't deal with it myself, and he has obviously held it against me.

Now, he says I was in the surf with him. To be absolutely truthful, teachers went over there fully dressed. We ran the lifesaving activities at the pool. I ran the buses over and the buses back. I came fully dressed. The only thing I was able to do was take off my tie and that was it. I stood at the pool fully dressed for the entire one and a half hour duration and went back to school immediately afterwards. So the diatribe of abuse and lies of me is nothing short of fabrication.”

  1. I take it to be Mr Hall’s complaint that he was exposed as a target of retaliation from boys at the school because he was given the task by the headmaster to “lift the academic profile as well as behaviour and discipline” and that his performance of that task engendered resentment in boys who by implication made the allegations of sexual abuse that led to the charges that he faced. Doing the best I can, Mr Hall’s contention that the verdicts in each case were unreasonable appears to be a challenge to the legitimacy of his Honour’s satisfaction of guilt beyond reasonable doubt upon the basis that the several complainants had an obvious motive to lie and were obviously lying, both of which his Honour failed to detect. However, there is no evidence in this appeal that Mr Hall’s legal representatives had any instructions that all of the complainants had “axes to grind” so that the trial somehow miscarried, in the sense that his Honour was not made aware of this when he should have been. (A failure by defence counsel to cross-examine particular complainants about their motives, or to make submissions about their credibility because they were resentful of Mr Hall’s treatment of them as a disciplinarian, could only possibly be relevant to Ground 4).

  2. Mr Hall referred to a series of incidents that he maintained raised the issue of whether or not the complainants’ motives were improper and whether they should have been detected as such by the trial judge. For example he referred to an incident involving beach activities occurred at the school:

“HARRISON J: Can I just stop you there. These three boys

APPLICANT: Yes.

HARRISON J: --gave evidence at your trial. Is that correct?

APPLICANT: Only OP did. The other boys who were involved were not called. OP was the only one who claimed that I had gone into the surf with him and grabbed him on the genitalia, which is an absolute lie.

HARRISON J: And he was cross examined by Mr Heazlewood at your trial about that incident, was he?

APPLICANT: Look, I'd have to look at the court transcripts to see, but to me - the cross examination to me didn't seem to reveal the obvious fabrication of this and it was just somebody with an axe to grind who took it out on me years later because he knew I probably had no defence, and sadly, the person who - I wouldn't even know where the person was who had the grease put on him, but it was left to me of course to deal with because it happened in my area, and the parents came in the next day and I had to nominate that boy as the culprit with another. So the headmaster was there when I did it and he knew the facts.”

  1. As the Crown has pointed out, this issue was the subject of evidence at the trial. His Honour made findings concerning it in his judgment as follows:

“Count 2 concerns the complainant OP. OP was born on 1 December 1963 and was at St Pius X from 1976 to 1981. The Crown case was that when he was in year 7 in 1976 OP attended Merewether Beach with other students and teachers for beach activities. After a walk along beaches, students entered the surf. The accused stood with OP in the surf. A wave came, causing some movement. The accused grabbed OP’s genitals through his board shorts. The defence case was that the accused did supervise beach activities but students never entered the surf during such activities and the accused did not grab OP’s genitals.

…

I turn now to the evidence in relation to OP.

OP attended St Pius X from 1976 through 1981.

OP gave evidence he attended beach activities at Merewether Beach with the accused. OP said initially he thought it was in year seven or eight, but later maintained it must have been in year seven.

OP said he was not confident in the surf and so stayed close to a sandbank. He said the accused was standing on his right and they both were facing the ocean. He said the water was around his groin level. He said that a wave came through and caused movement, and he felt a hand on his groin, but the hand stayed there for ‘a bit longer than I thought it should’.

He said he knew it was the accused’s hand, as he was standing beside him, and the hand was on his groin. He said he looked up at the accused and he, the accused, looked at him, OP.

OP said he pushed the accused’s hand away, and neither said anything.

OP was asked where the accused touched him, and he said, ‘My penis and my testicles.’ OP acknowledged he stated to police in a statement he was touched on his ‘balls’ and ‘nuts’, but made no reference to his penis.

OP explained, ‘Well, if somebody grabs you by that area, they usually grab everything, don’t they?’

OP maintained the touching was ‘for an inordinate time’, and was not ‘just a glancing blow; it was held.’

The accused gave evidence the incident ‘never happened’.

The accused maintained lifesaving activities, including a bronze medallion, were held at Merewether Baths, but not for year seven students.

The accused said students used the pools for still water activities, and it was the rule, ‘no-one was to go in the surf’.

OP gave evidence he told no-one about the incident until he told police. He said he did not tell his father because he ‘didn’t really think it was that big a deal, to tell the truth’.

OP later explained it was frightening, but he had not been affected physically. However, he said he did not tell school friends, as he felt uncomfortable talking about it, and it was not ‘the sort of thing’ you talked about.

OP disclosed the matter when police contacted him and asked if he had anything to say regarding the accused.

…

The accused grabbed OP’s genitals in the surf for a brief period. The tendency evidence confirms the act was intentional, so as to constitute the alleged assault. OP was a male person. Having regard to the nature of the act, the part of OP’s body, their relationship and respective ages, the act was indecent according to community standards. It follows I was satisfied beyond reasonable doubt of the elements of this offence.”

  1. His Honour’s judgment deals clearly with this complaint. His findings do not appear to be questionable or unreasonable. Mr Hall has not demonstrated appellable error with respect to his Honour’s treatment of these matters in forming his conclusions.

  2. Next, Mr Hall’s submission emphasised alleged misconduct by the complainant OP with respect to smoking, bullying a new boy and entering the surf against his instructions. There was, however, no evidence about these incidents at trial. Mr Hall confined his answers in his evidence-in-chief to the fact that OP was on his roll for water surf lifesaving. There was no evidence that Mr Hall ever told his lawyers about these incidents. Even if he had, any tactical decision not to lead evidence from him about them, or not to put to OP that he had a motive to fabricate an allegation of serious criminal offending decades later, would not amount to a matter casting doubt upon the reasonableness of his Honour’s satisfaction beyond reasonable doubt of any of the charges. For presently relevant purposes, there is no material to support a submission that the verdicts were unreasonable for that reason.

  3. Mr Hall also emphasised the fact that he went to the beach and remained at the beach fully dressed (see above). However, there was no evidence in this appeal about it and no evidence led at the trial. Nor is there any evidence that Mr Hall ever instructed his lawyers concerning it.

  4. Mr Hall made several other submissions about issues of this type. Once again allowing for the fact that Mr Hall was not legally trained, an example of this type of submission can be found in the following extract from the appeal transcript:

“HARRISON J: Clearly enough in this case you need to demonstrate that, I think the rubric under which this falls is that the decision that his Honour came to in finding you guilty of one or more of the charges that he found you guilty on was an reasonable result, that the verdicts were unreasonable.

APPLICANT: That's correct.

HARRISON J: All right. I would be helped if you could put these incidents to which you're referring into the context of your obligation to demonstrate that the decision that his Honour came to on this or any of these incidents, if he referred to them, or the charges that he found you guilty of, was an unreasonable result. Are you able to do that?

APPLICANT: Right. I understand now fully. Well, may I turn to DK.

HARRISON J: Yes.

APPLICANT: DK, I was found - I was convicted of having oral sex and anal sex with him. DK was a boy who I didn’t even know until I first took the job as form master of year 10 and I took it under duress because no-one else wanted it. He was spoken to by me, inquiring as if he wanted - he was standing outside the common room. I asked him if he wanted to see a teacher and he - he just was rude to me and I said, ‘I'm sorry, I do not know your name,’ and I didn’t know him - I didn’t know his name, and he said, ‘What's it to you?’ and moved off.

Now, his blatant rudeness to me outside the foyer made me call him back. I did and he completely ignored me and then from that day forward a number of things happened where I made decisions concerning year 10 and one was I would not put on a school dance, the other was that he was not made a prefect, and the other was that he was not put in a football team that I was planning to organise later in the year, so he made snide barbs at me in the playground under his breath and from that time forward it became a fairly nasty exchange and in the end it came to a head when I just simply refused to walk down on the playground because I would come across him and he still insisted on being rude to me and I was putting up a notice on the board for the year 10 information dates and I heard him say - one of the boys said, ‘Are you going on the year 10 retreat,’ and he said to one of the boys, and I don't know whether I was meant to hear it, but I did, ‘I would not go on anything that that kraut C organised.’

And I turned around and stared at him and I went up and I told the headmaster what had happened and the headmaster said, ‘Well, what's your assessment?’ I said, ‘Our assessment is to move him on to another school. I do not wish to have that sort of person in the college.’

HARRISON J: So what do you say is the mistake that his Honour made? I think

APPLICANT: His - his Honour

HARRISON J: it's with respect to counts 25 and 26 in relation to DK.

APPLICANT: His Honour did not understand the nastiness this boy had for me personally and he had a - he had a vendetta out on me and it was, it came to a head when he turned up at my house on one occasion with two other boys and I was entertaining and I couldn't even speak to them really because I had guests, and on another occasion he turned up drunk with these same two boys and they wanted a lift and I refused to give it because they were in such a bad way, I told them to go over and get the courtesy bus, and from that day forward it just became a hatred of me and I didn’t - I - I made - did my level best to simply avoid him.

At no stage was he ever a guest in my house. His Honour did not pick that up, and at no stage would I have had anything to do with him because he was - he was - had such an intense hatred of me and I have such a - a personal dislike of him, and I didn’t want anything to become a slanging match, particularly on the playground, because you lose your moral authority and - and I didn’t want that, although some of the boys knew when I didn’t put him in the football team what the matter was, but the thing is, the headmaster assured me that he had had conversation with the mother and the mother feared that something like this might happen because he didn’t want to be at the school.

Now, that be as it may, I said to the headmaster, ‘What is your advice?’ He said, ‘Stay right above it. Keep your powder dry. Do not be involved.’ He said, ‘I will handle this in due course,’ but the boy remained at the school for the rest of the year and I can only assume that the headmaster had information in his private mind that would - was not conveyed to me and, of course, his Honour could not have possibly known that and, therefore, all that's happened to me is I have been slandered by this boy, but the other thing is too, I made the - the headmaster aware and his Honour was not aware of this, that I felt the boy had mental health issues that had not been addressed or even acknowledged, and the other thing I made it clear to the headmaster was that quite frankly I thought I was worried that he was in a group of boys who were known smokers of pot and I - I felt that I was the brunt of his hatred because I was watching him very carefully on the playground to see what they, you know, where and where they went and the headmaster said, ‘Look’, he said, ‘We'll get him counselling,’ and I went and offered him a counsellor, and he said, ‘I don't want your counsellor. This school sucks and the teachers are gay.’ So

HARRISON J: All right. Could you just then just

APPLICANT: His Honour did not know any of that information.

HARRISON J: Just if you would encapsulate your argument about DK and counts 25 and 26.

APPLICANT: Yes.

HARRISON J: What mistakes do you say his Honour made in accepting DK's evidence on those counts?

APPLICANT: Well, believing the advice of somebody who was and probably still is suffering mental health issues. He had a personal hatred of me that his Honour the judge could not have possibly seen because of the terribly sort of totally ungenuine style of the answers he gave, how he referred to me as the guru of the school. Well, I was nothing of the sort, but I was quite strict when it came to the year 10 boys and he was one that I was strict with. Now, he's taken this out on me years later because when you're an ex-policeman, your Honour - and I was instrumental in getting him his reference to go to the Police Academy - when you're an ex-policeman, your Honour, you can say and do anything to people with total impunity, and that is what he has done, and his Honour I feel failed to appreciate that.” [Emphasis added]

  1. A significant proportion of Mr Hall’s submissions refer, with no apparent appreciation of the irony, to “Essential Background Information (his Honour did not hear it, and was not made aware of it)”. It is Mr Hall’s submission under this ground that the undercurrent of dislike for, or resentment towards, him at the school from the complainants, whom he was required to discipline, has adversely affected their testimony and that his Honour should, even in the absence of direct evidence about it, somehow have discerned this and rejected their complaints as incredible and untruthful as a result. Alternatively, Mr Hall appears to contend that to the extent that these matters were not made plain in the evidence, his lawyers were at fault and that his Honour would have come to a different conclusion on all counts if they had been. The first proposition is no more than a complaint that his Honour should have come to a different conclusion about Mr Hall’s guilt and that he should have seen through the lies told by the complainants and rejected their stories, with the result that his findings of guilt were based upon lies and were unreasonable for that reason alone. However, Mr Hall has not managed by this approach to demonstrate that the verdicts were unreasonable in the sense that his Honour could not on the whole of the evidence legitimately have arrived at them. I have reviewed all of the evidence in the trial and I am satisfied that it was open to his Honour to be satisfied beyond reasonable doubt of Mr Hall’s guilt on all counts upon which he was convicted. The second proposition is considered under Ground 4.

  2. In summary, matters or complaints such as those articulated by Mr Hall in the transcript extracted at [14] were either not raised at the trial so as to amount to new or fresh evidence (see WG v R; KG v R [2020] NSWCCA 155) or are matters that were in fact actually raised at the trial and dealt with by Mr Hall’s counsel. In either case, Mr Hall has not demonstrated that the verdicts in his trial were unreasonable as a result.

Ground 2

  1. Mr Hall maintains that his trial was unfair as the result of local adverse media attention, the delay between when the offences were alleged to have been committed and the trial and because he had to wait until the Crown witnesses had completed giving their evidence before he was able to respond. These are dealt with in turn.

  2. As already noted, Mr Hall was tried by judge alone. That was the direct result of a successful application by him in which he sought an order that the trial venue be relocated from Newcastle or that he be tried by judge alone. Mr Hall swore an affidavit on 19 April 2018 in support of that application. Paragraphs 9 and 11 of that affidavit are as follows:

“9 I am concerned that the prior media coverage and the recent publicity of my arrest and subsequent Court appearances will inevitably result in prejudice and therefore impact on my right to a fair trial. Consequently it would be in the interest of justice to grant the trial by judge alone or alternate [sic] venue.”

…

11 I have been advised that the normal course is by way of trial by jury which acts as a protection for an accused individual to be tried by reasonable members of [the] public. I am of the belief that this is a case whereby the protections offered by a trial by jury can be adequately dealt with by a judge alone.”

  1. Mr Hall has not suggested that the trial judge was himself adversely affected by the publicity in a way that led him erroneously to form an unfavourable view of him or that he was somehow otherwise biased against Mr Hall. Certainly no application was made during the trial or at any time to have the trial judge disqualify himself for some reason. As the Crown has pointed out, Mr Hall was acquitted on a number of counts. There is no reason to suspect that Mr Hall received a trial that was unfair either because of the surrounding publicity or because of any demonstrated idiosyncrasy of the trial judge.

  2. Mr Hall’s complaints about delay are concerned with the length of time between the commission of the acts that formed the basis for the charges against him and his trial on those charges. It is in the very nature of what are often referred to as historical sex offences that there is often a delay between the reporting and investigation of such allegations and the conduct of any trial that results. Unless Mr Hall can point to some prejudice that has resulted from the delay, usually in the form of lost evidence or the death of witnesses upon whom he might have wanted to rely at his trial, or the demonstrable loss of capacity or memory on the part of Crown witnesses, there is no basis for this Court to act upon these concerns.

  3. The trial judge dealt with the issue of delay in his judgment in the following terms:

“The next principle concerns evidence of delay in complaints. There is evidence that certain complainants did not complain about what the accused is alleged to have done to them at or about or soon after the alleged events. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate the complainant’s allegation regarding the offence is false.

There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. However, the delay in making a complaint or the absence of a complaint is a matter I may take into account in assessing the credibility of the complainant’s evidence as to what he said the accused did. These are matters to be considered in assessing the credibility of the respective complainants’ evidence.

The next principle concerns the effects of delay in complaints being made. There is a warning I must give myself relating to the issue of delay in complaint. It is most important I appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt.

In this regard I note specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case. First, a number of witnesses who may have been able to give evidence regarding circumstances in which it is alleged offences were committed are unavailable to give evidence. Secondly, evidence that may have been able to be obtained at or about the time of the alleged offences cannot now be obtained.

The delay in the complaints being made has created difficulties of these kinds for the accused. Consequently, the evidence in respect of each alleged offence is largely confined to the evidence of the complainant concerned. Given the passage of time, difficulties also arise from the possibility that there may be frailties in the complainants’ memories of relevant events.

These difficulties put the accused at a significant disadvantage in responding to the prosecution case either in testing the prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both. The delay means the evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.

Had the allegations been brought to light and the prosecution commenced sooner, it would be expected the complainants’ memories for details would have been clearer. This may have enabled their evidence to be checked in relation to details against independent sources to verify it or disprove it.

The complainants’ inability to recall precise details of the circumstances of the incidents makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict them. Had the accused learned of the allegations at an earlier time, they may have been able to recall relevant details which would have been used in cross-examination of the complainants.

Another aspect of the accused’s disadvantage is that had he learned of the allegations at an earlier time he may have been able to find witnesses or items of evidence that might have contradicted the complainant or supported his case or both. He may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him. Because of the delay, the accused has lost the opportunity to bring forward such evidence.

Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence and as a result before I may convict the accused I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters I have just addressed – the fact that the complainants’ evidence has not been tested to the extent it otherwise could have been, and the inability of the accused to bring forward evidence to challenge it or support his defence.”

  1. Accepting that Mr Hall did not seek to have his trial permanently stayed by reason of the type of difficulties to which the trial judge referred in his judgment, and accepting therefore that the proper approach was for the trial to proceed with the trial judge making due and proper allowance for the presumed disadvantage that followed, it is difficult to see what basis Mr Hall has for any complaint that his trial was unfair by reason of the delay. Mr Hall was entitled to receive a fair trial, not necessarily a perfect trial. The trial judge’s approach to this problem was unexceptionable and completely in accordance with accepted practice.

  2. Finally, Mr Hall’s concern that he was forced to await the conclusion of the Crown case before he could give his own version of what occurred is based upon a misunderstanding of the criminal trial process. It is obvious from the cross-examination of the complainants that Mr Hall’s counsel was armed with his instructions and that the complainants were challenged, where appropriate, with what Mr Hall ultimately wished to contend was the truth. The fact that he did not have an opportunity to rebut the evidence of each complainant in sequence is a simple function of the way criminal trials are conducted. The fact that Mr Hall considers this to have been unfair is unfortunate, but his view does not translate to a complaint that is justiciable in this Court.

  3. This ground of appeal is not made out.

Ground 3

  1. Mr Hall’s written submissions apparently raising a complaint about the admission of tendency evidence were as follows:

“THIS DESTROYED ANY CHANCE OF A FAIR TRIAL. ON ‘TENDENCY’ EVIDENCE. A PREJUDICIAL & SPURIOUS ASPECT

Using this as a support and an argument in evidence IS prejudicial to the axiom: ‘Innocent before proven guilty’. The prosecution erred by overlooking the fact that there was clearly a reasonable doubt, (especially in the collaborated evidence of some witnesses), about whether any desire or opportunity ever existed for this to have occurred – when it did not or could not at the time. And that, furthermore, the onus of proof otherwise, wrongfully lay with the defendant. The complainants proved nothing by their false accusations.

This risks (and poses) a fundamental departure from the defining safeguards of the accusatorial system of criminal justice; allowing anyone to say/print anything untrue at any time. The engagement of circular logic is implied. ‘Tendency’ is indeed a circular logic and argument, and that is prejudicial to the defendant and their case at the very least. It is false accusation, perjury and slander, at its very worst.

Here are the ‘tendencies’ that I observed (in court) with the complainant.

1. All had a tendency to hold a ‘grudge’ against me or the school.

2. They all quoted incidents from 35-45 years ago!

3. All had a tendency to misrepresent the facts. They did not let the TRUTH get in the way of a good story.

4. They all had a tendency to be self-indulgent, with no concept of their being in the wrong (needing correction).

5. Substance abuse and excessive (alcohol) binge drinking was a common threat and tendency in their subsequent lives.

6. They all had a tendency to forget the fact that I did not smoke, or drink hard liquor or beer.

7. This led to their tendency to half-truths, total delusional inventions, and bald-faced lies, in their evidence.

8. They tended to ‘snub their noses’ at the school rules and other disciplinary measures.

9. They tended to forget that we were always on duty and took their safety seriously, especially on the playground.

10. They tended to forget that staff kindly gave them transportation to and from sport, and conveyed ‘stranded’ students back safely to bus stops or school.

11. They tended to forget they were the BEST LOOKED AFTER and SUPERVISED school boys in the town. Staff were dedicated and professional at all times.

12. They tended to forget that consistency of approach to instruction in class, and upholding of school rules, is NOT a tendency to intimidation or bullying by the teacher, but a parental expectation that was paid for in fees.”

  1. Further submissions from Mr Hall on the same topic were supplied by him in the following relevant terms:

“A Comment on ‘TENDENCY’ as Evidence

1. This has been considered as a prejudicial and very spurious argument in prosecution evidence. It need not rely on facts or the truth, and presumes guilt. This is not the basis of our legal system and its procedures in court.

2. Using this as support for evidence to ensure or gain a (doubtful) conviction – at any cost – will invite the following assessment of its prejudicial nature.

3. ‘The prosecution erred by overlooking the clear and proven fact, that there was clearly reasonable doubt (especially in the obvious collusion of witnesses), about whether any opportunity ever existed for this to have occurred, given the administrative structures and rules in place at the time, and the crowded workplace environment.’

4. ‘Also, that the onus of proof otherwise, wrongfully lay with the defendant, rather than the complainant – 40 years later.’

5. ‘This poses and risks a fundamental departure from the defining safeguards of the accusatorial system of criminal justice, allowing any person to make such false accusations as they will, and then proceed to justify it by saying anything untrue. This lends itself to calumny and detraction that includes slander and defamation of the worst kind. The engagement of circular logic is also implied, and tendency is circular argument and circular logic as such.’

6. ‘This is totally prejudicial to the defendant and his rightful defence at the very least’.”

  1. As the Crown’s submissions suggest, it is not entirely clear what Mr Hall is intending to raise in this appeal as a challenge to the reception of tendency evidence in his case, as opposed to a complaint about the fairness of receiving tendency evidence in general. As the Crown has also observed, Mr Hall appears to be submitting that the prejudicial effect of the tendency evidence outweighed any probative value it may have had.

  2. Mr Hall appeared to narrow his focus with respect to this ground during the course of the hearing, as the following extract from the transcript reveals:

“HARRISON J: Now the Crown perceives that you have an issue about the use that the trial judge made of tendency evidence. This is a quite technical area of the law, particularly for non-lawyers. What do you want to say in this appeal on your behalf, in relation to that aspect of the trial?

APPLICANT: Well, your Honour, tendency could not possibly apply to me, because I was the most moral of people. I came from a strict family of deep religious feelings and these things I have been accused of, which I would never have done. Even if you'd have had the slightest thought of it you would never have acted on it, your Honour, because it was against everything we believed in. It was against my religion and I would've been summarily dismissed from the school if any of these things had happened.

And it was so that I was - I was terribly lucky that I had a headmaster who, like myself, was similarly minded about morals, and we had other cases on the staff, where morality issues occurred and he asked those people to find other jobs. Never once was I called in to the headmaster's office on anything like that, never once.

In fact the only once he called me in was to explain myself over the incident of holding boys in the lunch room, during lunch hour, to clean up a mess, and that was the only time that headmaster ever - the subsequent headmaster gave me a very, very broad scope with year 10, but he - I met with him every week and discussed every issue with him.

He knew the problems, I outlaid them to him. As far as anything else was concerned I was very, very strict on the lads. I was particularly strict on their morals and the fact that they were, you know, that they were the leaders of the school, and I always believed you had to lead by example. It was no use me doing one thing and saying quite another.

And the tendency evidence that was given said that these cases, or something, lead into each other, it's absolute rubbish. That's equivalent to me saying because I drive to school every day I might have a tendency to have an accident. Well, that - that could be the case, but it doesn't need to be the case. And the other thing about it, it's like saying, you know, because a person is born a woman they might have a tendency to be - to be a prostitute in later life. There is absolutely no connection with it.

And the thing is, I know there was bad publicity with one of the teachers in the school, and latterly a second, but the thing is it had nothing to do with me. I was above all of that and I kept myself out of the politics of the school. And apart from anything else, to say that I had a tendency for this, when there is no evidence, either before or after, particularly when I went to Sydney to teach in three of Sydney's top schools, was there ever a repeat of these accusations. It just happened to be certain people in this particular school, because there had been a pre-existing condition, or a co-existing condition in it, and sadly I was caught up. I was embroiled with Ms Sanders.

HARRISON J: Do I understand that you don't take issue with the manner in which his Honour set out what he understood to be the law he had to apply, in relation to tendency, or his understanding of the tendencies for which the Crown contended in the tendency notice that it distributed, but you do take issue with the fact that he formed the view, in this case beyond reasonable doubt…

APPLICANT: I think, your Honour, really it's not

HARRISON J: …that some of the charged acts, in relation to some of the offences, could be used by him as showing a tendency to act in a particular way, as the Crown alleged? Is that a fair understanding?

APPLICANT: That is a very good understanding and the fact that it was you were almost guilty before you were proven innocent, by something - by something like that. Tendency evidence to me, and from what I read of it there, is prejudicial to the case.

HARRISON J: I think I follow that.”

  1. The Crown contended that the tendency evidence admitted at the trial had substantial probative value, particularly as the setting for all of the alleged offences concerned Mr Hall’s conduct towards pupils at the school where he taught for some years. His Honour was referred to McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 and The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40. The tendency evidence upon which the Crown relied was limited to charged acts. However, there was a broad reliance across all counts, except 31, as well as some quite specific and confined reliance, in relation to particular complainants in respect of the various ways in which Mr Hall was alleged to have a tendency to act in a particular way. His Honour gave himself the usual warnings against misuse or misapplication of the tendency evidence as well as against exceeding the scope of the tendency case alleged by the Crown. The Crown submitted that there could be no suggestion that his Honour’s directions were incorrect or that he misapplied the law: Judgment, 5 October 2018 at pp13-17.

  2. His Honour also determined that he would not rely on tendency evidence unless he was satisfied that it was proved beyond reasonable doubt. That approach was probably more stringent than was required but advantageous to Mr Hall. It can be seen from the following extract from the Judgment at pp 105-106:

“I turn now to address the tendency evidence. As already noted I am satisfied beyond reasonable doubt on the evidence regarding certain counts in isolation from tendency evidence. I am satisfied beyond reasonable doubt on that evidence, that the accused did the acts alleged in the circumstances alleged in respect of the following counts, 20 to 21, concerning BM, 25 to 26 concerning DK and 20 to 30 concerning DG.

I am in turn satisfied beyond reasonable doubt on this evidence that the accused had the following tendencies.

1. A tendency to have a particular state of mind, namely a tendency to have a sexual interest in boys in their early to mid-teens who were his students.

2. A tendency to act in a particular way, namely a tendency to act on his sexual interest in male students under the age of 16 years by engaging in sexual activity with those boys.

Each of these tendencies of the accused may be used in proof of all counts relating to all complainants. The findings I made that the accused had those tendencies removed any reasonable doubt I might have had that the accused committed the acts in the circumstances alleged in respect of the following counts: 1, 2, 4, 5-7, 15, 16-17, 18-19, 22-23 and 28. I was also satisfied beyond reasonable doubt on the evidence of the former counts that the accused had the following additional tendencies.

1. The tendency to befriend male students and socialise with them outside of school grounds in order to deal with them sexually.

2. The tendency to take advantage of his position of responsibility for young male students in his care and exploit the opportunity that was presented when he was alone with them.

Evidence of these additional tendencies may be used in proof of other counts relating to the complainants RD, PM, SB, DK and DG. The findings I made that the accused had these tendencies only reinforced my conviction the accused had committed the acts in the circumstances alleged in respect of the following counts: 1, 5-7, 15, 16-17, 18-19 and 22-23.”

  1. I appreciate that Mr Hall is both unrepresented and not legally trained. However, the present proceedings are nonetheless adversarial and require the demonstration of error before this Court can intervene. Mr Hall’s avowed disaffirmation of the use of tendency evidence in criminal trials may find support at an academic or intellectual level but his concerns in the abstract do not advance his interests in the prosecution of his appeal in this Court.

  2. This ground of appeal is not made out.

Ground 4

  1. Mr Hall alleges that his lawyers at the trial were incompetent by reason of their failure to follow his instructions to call evidence from witnesses to attest to his good character. This allegation was expanded somewhat at the hearing of this appeal to include an allegation of a failure to call witnesses more generally.

  2. The Crown provided detailed submissions about this issue which it is helpful to set forth in detail.

  3. Mr Hall alleges that his lawyers were incompetent because they failed to call evidence of his good character. The Crown read the affidavits of Mr Hall’s solicitor Mr Lollback and his barrister Mr Heazlewood as to the reasons for the decisions made or taken in this regard. The Crown submitted that this evidence established that the decision not to call evidence of good character was a forensic decision made by Mr Heazlewood on the basis that he was aware that the Crown was in possession of material, served on the defence, which was available to rebut any evidence of good character should that issue have been raised at trial. That rebuttal evidence fell broadly into three categories.

  4. First, evidence was available that Mr Hall had been the subject of a number of complaints by both teachers and students at Temora High School and teachers, students and parents at Cootamundra High School when he was employed at these schools as a casual teacher. The complaints at Cootamundra High School were not investigated because the school made a decision not to employ Mr Hall again as a result of them. However, complaints were reported to the Education Department by the headmaster of Temora High School due to child protection requirements and they were subsequently investigated by the headmaster. The headmaster, having investigated, including interviewing Mr Hall, found that the complaints had been made out and provided Mr Hall with a written report of his findings. The findings included, but were not limited to, that Mr Hall had threatened students with physical punishment, conversed about sexual matters unrelated to a syllabus and made sexually suggestive remarks or actions and obscene gestures to students. Detailed notes of this investigation were served on the defence, including a note by the headmaster that Mr Hall said, when confronted with the complaints and in particular a complaint about calling students faggots and poofs: “We always entered into this robust form of conversation in the past in the schools I was in.” It was then pointed out to Mr Hall by the headmaster that he was mainly employed in the past by private schools and that he was now working in the public system and required to follow the Department of Education Code of Conduct. The comment by Mr Hall about his past behaviour was significant because it was an indication by him that his unacceptable behaviour was not new or recent. The evidence therefore had relevance in terms of his character at both the time of the offending and since. As a result of his findings, the headmaster recorded on 17 December 2012 his decision that he would not employ Mr Hall in the school again.

  5. Secondly, material to rebut evidence of good character was available that Mr Hall had on various occasions passed himself off both in person and in writing as a medical practitioner, despite not being registered as one. This was relevant to his reputation for honesty and integrity.

  6. Thirdly, evidence was provided by the Zimmerman Service, a body apparently set up to control Catholic education in the Newcastle area, containing an allegation that Mr Hall may be a paedophile and also containing more detailed allegations by DG’s mother, one of the Crown witnesses.

  7. In terms of the alleged failure to call evidence, Mr Lollback deposed in his affidavit to the fact that he could not recall Mr Hall providing a list of witnesses that could be called at the trial and that it was not until after the trial that Mr Hall provided instructions to follow up supporting references for use in the sentence proceedings. Mr Lollback said that he then followed up with these referees to get updated references. In terms of instructions generally, evidence in the form of file notes of conferences with Mr Hall show that instructions were taken from Mr Hall before the trial on the various counts and allegations. It is also clear from the trial transcript that Mr Hall’s counsel cross-examined various witnesses based on instructions from Mr Hall (for example repeatedly putting to complainants that Mr Hall did not have a ‘home’ class room to which they were sent for punishment and in which some offences allegedly occurred).

  8. The Crown submitted in these circumstances that there was no evidence of any errors regarding the calling of trial witnesses or the obtaining of instructions.

  9. In the present case, it not apparent from the face of the trial records whether Mr Heazlewood turned his mind to the question of evidence of good character. However, the evidence in this appeal makes it clear that a decision was made by him not to raise good character and that there were good tactical reasons why that decision was made. The rules relating to hearsay, tendency, opinion and credibility do not apply to character evidence called in rebuttal of good character evidence led on behalf of an accused: Evidence Act 1995, s 110(2). It would have been potentially highly damaging to the defence case in this matter to have raised good character at trial, either generally or in a specific respect, thereby giving the Crown a basis to lead the above rebuttal material, even if its use was limited to the rebuttal of good character evidence. The rebuttal evidence went to character both generally (the dishonesty of passing himself off as a medical practitioner) and specifically (in so far as the rebuttal character evidence would have exposed at trial Mr Hall’s subsequent sexual misconduct as a teacher).

  10. The Crown submitted that Mr Hall has an onus on appeal to show that there is a significant possibility that the trial Judge would have made an advance ruling in his favour to exclude evidence rebutting good character if his counsel had sought such a ruling at trial before deciding whether or not to raise good character: s 192 of the Evidence Act. The Crown submitted that that possibility in this case was no more than theoretical and may well have depended upon the trial Judge hearing voir dire evidence directly from the rebuttal character witnesses concerned: see McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 154. Here the rebuttal evidence was of significant probative value, particularly the evidence that Mr Hall’s character and conduct as a teacher fell so far short of acceptable standards that he was deemed unsuitable for employment as a teacher by the headmaster and deputy head of two public high schools.

  11. There was also a risk that, once admitted as rebuttal evidence, some of this material was capable of being used as circumstantial support for the evidence of one of the complainants, namely DK, whose evidence was that he was threatened by Mr Hall at the time of the offending by being told by Mr Hall that he was going to call the complainant a “poofter”. This left the complainant too scared to make a contemporaneous complaint. However, it is not necessary for this Court to decide whether the available evidence rebutting good character, once admitted, would also then have been available as evidence relevant to Mr Hall’s credibility generally or as evidence directly relevant to an issue in the trial (such as DK’s account of what Mr Hall said to him at the time of offending). The issue is whether or not there was any error by Mr Heazlewood in deciding not to take the risk of attempting to establish Mr Hall’s good character and whether his decision gave rise to a miscarriage of justice.

  12. Mr Hall appears not to have appreciated these realities both at his trial and in this appeal. In so saying, the law is that as a general rule a party is bound by the conduct of his or her counsel, who has a wide discretion as to the manner in which the proceedings are conducted. Forensic decisions frequently involve difficult judgments, including tactical considerations, about the “correctness” of which minds may differ. Forensic decisions made in the course of a trial may have been made differently with the benefit of hindsight. The question is not whether or to what extent counsel was incompetent but whether justice miscarried to the extent that an appellant such as Mr Hall was deprived by his counsel’s conduct of the chance of an acquittal.

  13. The Crown submitted that the evidence in this appeal, and what can be discerned from the conduct of the trial in respect of this ground, clearly indicates that Mr Heazlewood made no error in the conduct of the trial and that there was accordingly no miscarriage of justice.

  14. Mr Lollback and Mr Heazlewood were cross-examined by Mr Hall in this appeal. Mr Heazlewood’s evidence included the following:

“APPLICANT: Colin, we discussed on occasions the calling of witnesses in your chambers in Elizabeth Street. I furnished Harry Lollback with a list of deceased members of staff who were no longer available. Do you remember that incident?

A. No.

Q. Do you remember when I gave him a list of staff members who I thought were still alive and who could be called?

A. No. The only lists of witnesses that I recall is a list that you provided to Mr Tyler‑Stott and myself when we saw you in Cessnock after the conviction and the witnesses related to witnesses that may assist with the sentencing process.

Q. That was in the cubicle. I - I - I remember I gave you the same list that I gave Mr Lollback, exactly the same people who were still alive that I thought could be relied upon.

A. Mm.

…

Q. Thank you. Mr Heazlewood, I've got your affidavit here and this is the first time I've ever seen it. Everything you've said there about the judge-alone trial and everything like that is correct. Everything there in relation to good character, now there's a couple of things there that are completely wrong. I've never seen that, that I was an anaesthetist. That's absolute rubbish, and that I claimed to DK I was a doctor. I did not. I did say to him I had been doing some work with the Chinese and Japanese people and they all called me a professor because they considered me top of the thing. I was not aware of the Zimmermann service, whatever that was, at the time. I subsequently became aware of it, and I did inform you that there were about 10 or 12 people I could call - and I gave the list to Mr Lollback

HARRISON J: Mr Hall, and I just remind you - you're telling us a lot of things that I know you consider to be accurate - do you have any questions of Mr Heazlewood?

APPLICANT: Yes, does he know why Mr Lollback didn't call the witnesses?

WITNESS: These are witnesses that were to give evidence as to character, were they?

APPLICANT: Not only character - rebuttal of any - any charges.

WITNESS: No, I don't.

APPLICANT: Well, I don't either.

Q. Now, digging through the file, there is one person here - this came up - unfortunately you may not have been aware of this - this came up in the trial and it's item 721 Statutory Declaration by MT. He was the vice-captain of the school saying that throughout his years of knowing me he was never made aware of any students - any other students or any inappropriate behaviour from me towards toward any student at St Pius. Now this - again I didn't know about this, but this probably may not have been tendered until the trial and it's got here, "On none of these occasions did I hear of any inappropriate behaviour." Now, he was the vice-captain of the school

HARRISON J: Mr Hall, I don't mean to stop you. You might want to make some submissions about this in due course possibly. But Mr Heazlewood is here - he has sworn an affidavit, he has said certain things. You either accept that they're true or if you consider that they're not and you want to challenge them, now is your opportunity to do that.

APPLICANT: All right. I most definitely took advice from Mr Lollback who briefed Mr - we agree that the publicity was extensive, that was correct. I had very little input from the Royal Commission or anything like that - I did not know about that. He did suggest a judge-alone trial, that is correct. He think he was talking of seeking a change of venue, but nothing of it. Is that correct, Mr Heazlewood?

WITNESS: Yes.

APPLICANT: Was there a reason given for a change of venue, because it would have biased the proceedings, as you know it did.

A. Well, they granted - they agreed to a judge-alone trial so it became irrelevant.

Q. Even to have it in Newcastle despite the adverse press?

A. Yes.

Q. Well, that again was - I thought you would have challenged that. You did discuss tactical decisions, that is correct. We did discuss - it's not mentioned here but we did discuss witnesses I could call and I wrote down a list. Do you remember that at all?

A. No. I don't remember a list until after the conviction and a list was given to us at the correctional centre.

Q. The list I gave you was another list of that that I gave Mr Lollback a copy of it. I did not tell the police at the time of my - of my arrest I was a doctor or an anaesthetist. I did not say that at all. I did make an application to join the Currumbin RSL and I did put "Dr" on it. I did not claim to DK I was a doctor or indeed a professor, but I did tell him I had been lecturing in the Umath course and I told him also that I was lecturing Chinese and Japanese students who all called me professor. And the observation on one occasion at the car rental I did not have a stethoscope around my neck because I didn't own one. So that is not correct.

HARRISON J: Mr Hall, I'm aware of the things you're referring to. I'm not entirely sure they arise from anything that Mr Heazlewood

APPLICANT: This is as per his affidavit, your Honour.

HARRISON J: What did you say?

APPLICANT: As per his affidavit.

IERACE J: Mr Hall, what he says in the affidavit is that those matters were in the brief of evidence that he had.

APPLICANT: Well, I don't remember us discussing those at all. In any event, he did raise the question of character references. That is correct. I do accept that and I did say to you that I could get 10 or 12 people who could give me references and I did say to you that I could service you with references from my days of teaching which you thought at the time was a good idea. Do you remember that?

WITNESS: The only references I ever saw were references that were provided after the conviction and not one of them referred to the charges you were on, and it was necessary for Mr Lollback to - I believe he contacted most of them to see if any of them could give relevant evidence bearing in mind the charges you'd been convicted of at that time.

APPLICANT: Well, I was unaware of that, but I know he had trouble finding some people. I know that for a fact. But the witnesses you've got here, I have no recollection of any witnesses other than a list provided to you. But I did give that to Mr Lollback in your office.

A. Mm-hmm.

Q. And he took it and put it in his briefcase and went back to Wagga that night. Now, I would have assumed, as I'm sure you would have, that he would have followed that up if he thought that was necessary.

A. Well, yes, if he was given them and if that was - if he thought it was necessary, there's no doubt he would have raised it with me.

Q. And as far as I'm aware he did not.

A. Yeah, we had

HARRISON J: Mr Hall

WITNESS: --no list of witnesses.

HARRISON J: Mr Heazlewood - I think the question is unfair. Mr Hall, you're asking Mr Heazlewood a question about what Mr Lollback did. There's no

APPLICANT: Well, he

HARRISON J: --indication from the material that Mr Heazlewood either knew or should have known about that, unless you're suggesting that he should.

APPLICANT: Well, no. He was in the office when I handed him the list of witnesses, and I watched Mr Lollback put it in his briefcase. Now, what happened after that, I'm sorry, I cannot enlighten you anymore, or Mr Heazlewood apparently, but that is the honest truth.” [Emphasis added]

  1. Mr Hall thereafter made submissions upon this ground that are succinctly encapsulated in the following extract from the appeal transcript:

“HARRISON J: … Now your final ground of appeal was that your trial counsel on your contention was incompetent, again…

APPLICANT: No, not ‘incompetent’, your Honour. I didn't - no, I never used that word.

HARRISON J: All right.

APPLICANT: They failed to pick up on things that I presented to them, like the calling of witnesses, like the things that were obviously - Harry Lollback gave me the impression today that I don't think he knew much about what was going on, because he was thrown into it at the last minute.

HARRISON J: I suppose it was in that context that I formed the impression that you were complaining about competence of your legal representatives. Do I understand you now to limit it to a failure to follow instructions that you gave?

APPLICANT: Yes.

HARRISON J: Is that what it amounts to?

APPLICANT: That's what it amounts to. My - Mr - Mr Heazlewood, I - I didn't follow his logic sometimes, but he - he had experience of these things that I didn't, so I had to take his superior advice. Mr Lollback I don't think had any experience in something like this before and I think he got in maybe over his depth, because he was a very new practising solicitor, I think, that year. But I had to take whom I was given, because I was at a loss myself.

HARRISON J: All right.

APPLICANT: If I'd, if I'd have defended myself, your Honour, quite frankly, I feel I would've been better off, because I would've raised these issues.

HARRISON J: I understand. Did you want to say anything more on the quality or utility of your legal representatives at the trial? Or do I have it all?

APPLICANT: I don't, other than the fact that they did not attack the witnesses as I would've. The attack was very subdued, I thought, and - and fairly restrained, and I don't know why, because it was clear some of these people were just - some of them were operating under delusions from some length of time of - of substance abuse. Others made it up and I - I still believe this to the truth - to defraud the state of money, and - and it's - it's what some of the journalists refer to as ‘snouts at the trough’ and I was just appalled at the lies that were told. And I - I just - I didn't see my counsel pick them up and attack them, because every argument deserves a rebuttal and I was in a position to rebut it, but I had to be silent.” [Emphasis added]

  1. It will be immediately apparent from this exchange that the Crown’s reasonable anticipation, that Mr Hall’s principal concern under this ground was limited to the failure by his legal representatives to call evidence of his good character, may have been ill-founded. However, in my opinion, Mr Hall has not established that there was any relevant failure by his trial counsel to follow his instructions in any respect or in any respect that led to a miscarriage of justice in the sense that he lost the chance of an acquittal.

SENTENCE

  1. Mr Hall’s submissions on sentence are most accurately captured by his oral presentation in this Court. The following extract from the appeal transcript should be noted:

“HARRISON J: All right. You also have an appeal against your sentence.

APPLICANT: Yes.

HARRISON J: The Crown has proceeded upon the assumption that your complaint about that is that the sentence was so high that it, all by itself, evinced or demonstrated an error on the part of the sentencing judge.

APPLICANT: Exactly. Yes.

HARRISON J: All right. Now, I think there are, we understand the general nature of that complaint about the sentence. Did you want to say anything in particular about it in addition to what you've written in your material?

APPLICANT: Well, your Honour, when you're innocent, you should not be sentenced and there is the bottom line.

HARRISON J: Well, I think you need - you may be doing yourself a disservice there. A sentence appeal proceeds on the assumption that you have been convicted. Whether that conviction or convictions might at a later time be set aside or varied in some way is a different matter. But for the purposes of your sentence appeal, in order to do the best for yourself, you have to operate on the assumption that the sentence has been legally passed and you have a complaint about the length of it. So on that assumption, hypothetical as you contend it is, you should make whatever submissions about it as being unreasonable or unjust in your case, as you wish to make.

APPLICANT: Totally unjust, your Honour, because I've been sitting here for over two years, or just over two years now for something that I did not do. Now, how - how we come to address this is beyond me, because as I say the damage has been done. How can I ever go back and live my life? Again, I will yet to see. The sentence itself was just beyond all - all grounds of reasonable understanding. Even if I'd have committed one of those small -small infringements like with RB, if I'd have - you know, committed that, you mean you could have understood that. But no, because I hadn't and I was lobbied with, I think it was 39 charges across nine people, then I was left absolutely gobsmacked as to what happened next.

And I just believed that a miscarriage of justice occurred and that the sentencing was completely inappropriate and completely wrong, because his Honour - well, just made an error and all judges are human. They have to be. I make errors sometimes every day of your teaching life. Sometimes you get the wrong person, your Honour. And fortunately there's a kid who comes up to you and says, ‘You've got the wrong man. You've got to reverse your decision.’ His Honour just chose to believe people who were anything but reliable witnesses.

HARRISON J: I don't mean to interrupt you but I think you are reverting to the basis of your conviction. Just in relation to your sentence, you say that in listening to the material that was put forward on your behalf and having regard to the background that you had that he took in to account matters that were irrelevant or that he failed to have regard to matters that he really should have had regard to in sentencing you. If you have any submissions about that sort of thing that you want to tell us, obviously you should do so.

APPLICANT: Well, I said that not only took into matters - into regard matters that are completely irrelevant but matters that were completely impossible and he also didn't see the things that were happening in the background. Some of these people had or most of these people had agendas and I couldn't control that.

HARRISON J: Yes, but--

APPLICANT: I had no way of controlling it and unfortunately his Honour would have been influenced by that the sentence reflected it.

HARRISON J: All right. Is that all you wish to say in addition to your written material on the sentence appeal?

APPLICANT: Look, I think with - at the risk of becoming repetitive and redundant I think that closes, at least, my case. I want you to know me as an honest, moral man and that I've sat here in silence and I've suffered this indignity and pain, but I do believe the law is there to protect those who are innocent. I've got two sons lawyers, your Honour. Both have left the profession because of this.

HARRISON J: All right.”

  1. Although Mr Hall’s appeal appears primarily to be based upon his assertion that he is not guilty, he does raise manifest excess as a ground without identifying legal error. In the present case the sentence imposed was an aggregate sentence of imprisonment for 20 years to date from 5 October 2018 and to expire on 4 October 2038. A non-parole period of 13 years and 6 months was fixed to date from 5 October 2018 and to expire on 4 April 2032. The indicative sentences are set out at pages 28 and 29 of the remarks on sentence. Mr Hall was sentenced in respect of 21 offences spanning a period of 13 years involving nine victims.

  2. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 applies in this case. It came into effect on 31 August 2018 and provides that sentencing practices and patterns of sentencing at the time of sentencing are to apply to child sexual offences as opposed to sentencing practices at the time of offending. As there are no transitional provisions, it applies to any sentence imposed after 31 August 2018. It therefore applies in this case.

  3. The Crown submitted at sentence that a major aggravating feature of this case was the position of trust in which Mr Hall stood in relation to the complainants and their parents. The complainants suffered significant harm, both at the time of the offending and continuing thereafter. The offending was accompanied by violence and threats to the complainants not to speak out. The complainants were mostly in their early teens and vulnerable to sexual exploitation. There was a significant need for a sentence that included both general and specific deterrence and adequate punishment that recognised the seriousness, scope and the lengthy period of the offending.

  4. Mr Hall has shown no remorse. His whole approach to the sentence imposed was that he was not guilty and should not have been sentenced at all. There is no evidence that he has suffered in any way due to the delay in complaint. He was largely responsible for the delay in that his threats deterred the majority of complainants from reporting him to the authorities. There was no evidence that he would serve his sentence in conditions any more onerous than those of other offenders.

  5. Section 21A (5A) and (5B) of the Crimes (Sentencing Procedure) Act applies to render prior good character a factor that does not mitigate this type of offending “if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence”. Mr Hall relied upon his position of trust to obtain access to the homes of some victims and gain the trust of their parents, which enabled him to offend for many years with impunity. The Crown submitted that there is no legal error revealed in the remarks on sentence and that in all the circumstances of this case, the sentence is not manifestly excessive.

  6. As noted, Mr Hall does not assert specific error. He does not complain that his Honour took account of matters that were irrelevant or that he failed to have regard to matters of importance. He does not assert that his Honour misapprehended the facts for sentencing purposes, although it must be acknowledged that Mr Hall complains, irrelevantly for present purposes, that he did so at the trial. Putting aside his protestations of innocence, Mr Hall’s complaint is that no judge exercising a sentencing discretion in his case could reasonably or possibly have arrived at the sentence that was imposed by his Honour. Mr Hall takes no issue with his Honour’s remarks on sentence or the reasoning that underpinned his conclusions beyond his complaint about the result.

  7. In my opinion, there is no basis upon which to conclude that his Honour’s sentence was manifestly excessive. It was entirely within the range of appropriate sentences for offences of the kind and number committed by Mr Hall. It is not for this Court to substitute its own views about the sentence unless Mr Hall can demonstrate that the sentence imposed below was unreasonable or plainly unjust. I am unable to agree that it was.

Conclusion and orders

  1. In my opinion, the following orders should be made:

  1. Grant leave to appeal against conviction but dismiss the appeal.

  2. Grant leave to appeal against sentence but dismiss the appeal.

  1. R A HULME J: This was a case of considerable complexity which is evident immediately from the observation that there were 31 counts on the indictment alleging offences committed between 32 and 45 years before the trial against 11 complainants.

  2. The verdict judgment provided by his Honour Judge Gartelmann SC is exemplary; an epitome of that which may be provided in a judge-alone criminal trial. His Honour carefully and precisely set out the relevant principles of law; reviewed the evidence relating to each offence alleged in respect of each complainant; made clear and comprehensive findings as to the honesty, accuracy and reliability of the witnesses; and ultimately provided cogent, and in my view unimpeachable, reasoning why he did, or did not, find the offences proved beyond reasonable doubt. The very fact of there being 21 verdicts of guilty and 10 of not guilty indicates the discriminating approach taken by his Honour.

  3. I perceive no merit in any of the complaints Mr Hall has made in respect of his convictions or sentence. I agree with the reasons provided by Harrison J and the orders he proposes.

  4. IERACE J: I agree with Harrison J. I also agree with the additional comments of R A Hulme J.

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Decision last updated: 26 May 2022

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Cases Cited

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Statutory Material Cited

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McPhillamy v The Queen [2018] HCA 52
R v Nassif [2004] NSWCCA 433
McPhillamy v The Queen [2018] HCA 52