Hodgson v R

[2022] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hodgson v R [2022] NSWCCA 72

Hearing dates:

18 March 2022

Date of orders:

18 March 2022

Decision date:

06 April 2022

Before:

Leeming JA at [1];
Rothman J at [108];
Hamill J at [114].

Decision:

Orders made on 18 March 2022:

1. To the extent necessary grant leave to appeal.

2. Appeal allowed.

3. Quash the convictions on all counts.

4. The Court reserves on the question of retrial or acquittal in respect of any or all of the counts.

5. Bail is granted on conditions that (i) the appellant resides at xxxxx and (ii) the appellant attends court as and when required and in the manner required.

6. Reasons are reserved.

Orders made on 6 April 2022:

Further to the orders made on 18 March 2022, enter acquittals on counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 on the indictment dated 2 November 2020.

Catchwords:

CRIMINAL LAW – Appeal against conviction – judge alone trial - applicant found guilty of sexual assaults on two young boys some 50 years earlier – whether reasons of trial judge complied with s 133 of Criminal Procedure Act 1986 (NSW) – inconsistencies in complainants’ evidence with established facts – divergence of complainants’ evidence from their police statements – evidence of reconstruction of aspects of complainants’ recollection – uncontradicted evidence of appellant’s movements at the time – convictions quashed and acquittals entered

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW), s 6

Crimes Act 1900 (NSW), ss 80, 81, 81A, 578A

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), s 133, 294

Evidence Act 1995 (NSW), ss 165B, 191

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galea v Galea (1990) 19 NSWLR 263

Liberato v The Queen (1985) 159 CLR 507

Prouten v Chapman [2021] NSWCA 207

R v Markuleski (2001) 52 NSWLR 82

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

W v R [2014] NSWCCA 110

Category:

Principal judgment

Parties:

Robert Hodgson (Appellant)
Crown (Respondent)

Representation:

Counsel:
G Bashir SC (Appellant)
B Hatfield, A Morris (Respondent)

Solicitors:
Tim Sharman Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/258070

Publication restriction:

Judgment not to be published on CaseLaw until 7 days after judgment

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

06 November 2020

Before:

Herbert DCJ

File Number(s):

2019/258070

Judgment

1. LEEMING JA: On 18 March 2022, at the conclusion of the Crown’s submissions in response to Mr Hodgson’s appeal, the Court made orders granting leave to the extent necessary, allowing the appeal, quashing the convictions, reserving on the issue of whether this Court should enter acquittals or instead order that there be a retrial, and granting bail on the same conditions as had applied until sentence. The Court indicated that reasons would follow. These are my reasons for participating in those orders, and for concluding that Mr Hodgson should be acquitted of all charges.

2. The grounds of appeal fell into two main categories. The first was that the judge had failed to comply with s 133 of the Criminal Procedure Act 1986 (NSW) in respect of a large number of directions, and in failing to give reasons adequate to sustain the convictions. The Crown did not concede this ground (which if made out would lead to a retrial) but was – in my view appropriately – measured in its response. The second was that each of the convictions was unreasonable, in light of the deficiencies in the Crown case, including arising out of unexplained departures in the complainants’ evidence, inconsistencies with other evidence, the effect of delay and Mr Hodgson’s good character.

3. The second category of grounds is the more important in terms of their bearing upon the Court’s further orders. I have concluded that they are made out. The doubt which I have about each of the convictions is a doubt which should have been shared by the primary judge, even allowing for the advantages enjoyed by her Honour and the deference this Court must give to what occurred at trial. These grounds lead to acquittals.

4. The trial was short (less than 1½ days) and the reasons are also short. The most efficient way of explaining why this falls into that relatively rare class of appeal where appellate intervention is required, notwithstanding the advantages enjoyed by the trial judge who saw the complainants and the accused give evidence, is to summarise the salient aspects of the evidence and reasoning, and then explain why the convictions are unreasonable. The points of greatest importance are:

1. the unexplained shift by both complainants as to the way in which they said they were anally penetrated by Mr Hodgson from their police statements and from the way the Crown case was opened;

2. the uncontradicted evidence that Mr Hodgson did not live at the address during any of the time (or close to the time) the younger complainant said the events occurred or within the period contained on the indictment;

3. the uncontradicted evidence that it was impossible for Mr Hodgson regularly to encounter either complainant on their way to or from school, since he was working regular hours in the city through the entirety of the period contained on the indictment;

4. the evidence of the swimming pool, which both complainants said was at the house, and was claimed to have been the occasion for the older complainant first coming into contact with Mr Hodgson, but which was established to have been constructed only after the Hodgson family sold the house, and

5. the delay and the positive evidence supporting the conclusion that both complainants had reconstructed what occurred.

The trial

5. Mr Robert Hodgson was convicted following a trial in the District Court constituted by a judge sitting without a jury on 11 of 14 counts on an indictment. All counts were what would now be charged as sexual assaults under Division 10 of Part 3 of the Crimes Act 1900 (NSW), but because the events were said to have taken place in the early 1970s, the charges were offences to ss 80, 81 and 81A of the Crimes Act in the forms those sections (now repealed) then took, of procuring acts of indecency, committing acts of indecency, and one attempted act of buggery.

6. There were two complainants, who were young boys at the time. Only one boy was said to have been present at any time. The charges involved having the complainants masturbate Mr Hodgson’s penis, Mr Hodgson masturbating the complainants’ penises, and Mr Hodgson inserting tools (screwdrivers and pliers and a hammer) in the complainants’ anuses. There were also, in the case of the older complainant, charges that Mr Hodgson fellated the boy, and attempted penile anal intercourse with him, and that Mr Hodgson inserted a tool into his own anus in the complainant’s presence. Most or all of the events were said to have taken place in an under-storey workshop in a nearby house where Mr Hodgson had lived, some five decades ago, a couple of blocks down the street from the complainants’ home in suburban Sydney.

7. The two complainants were brothers, born in February 1960 and August 1966. They cannot be named or otherwise identified by reason of each of s 578A of the Crimes Act (because the offences are “prescribed sexual offence proceedings” and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) (because they were children when the offences to which they testified occurred). I shall refer to the older and younger brother as S and J respectively. All of the acts were said to have taken place more than 47 years before the trial, when S was 10 or 11 or 12, and when J was 5 or 6. There was no contemporaneous complaint.

8. The indictment contained 14 charges, 6 offences against S and 8 against J. The Crown’s opening was reflected in a document described “Particulars” which was provided immediately thereafter, and before the complainants gave evidence. The particulars made it quite plain that the counts based on the insertion of tools into the complainants’ anuses were said to have involved the insertion of the handle of a screwdriver, thus:

Count 5: “A inserted handle of screwdriver into [S’s] anus in the toolshed underneath the house on an occasion after Counts 1-4.”

Count 9: “A inserted a screwdriver handle into [J’s] anus in the toolshed under the house on the same occasion as Count 7 and 8.”

Count 12: “A inserted a screwdriver handle into [J’s] anus in the toolshed under the house on the same occasion as Count 10 and 11.”

9. The case was opened by the Crown specifically on the basis that “the object placed in [S’s] anus was the handle of a screwdriver” and “[J] will say that the handle of the screwdriver was inserted into his own anus – that is, [J’s] – and that that was done by the accused” and, again “by reason of the penetration of the screwdriver handle into the anus of [J]”. Both S and J gave different accounts when giving evidence in chief. They both insisted that Mr Hodgson had inserted the metal part of a screwdriver into their anuses.

The evidence in chief of complainant S

10. S said that he, his parents and three siblings moved to the suburb and went to the local primary schools in “probably 69, 70, something like that”. He said he was “about 95% certain it was in – in fifth class, beginning of fifth class” and that he was “not really sure a hundred per cent” what year that was.

11. S gave clear evidence about how he came to know Mr Hodgson who lived in a house he walked past each day coming and going from school:

“Q. How did that come about?

A. Well, we would come home from school, playing, as we did, and in throwing sticks and rocks and what have you, we used to – we were throwing rocks over the fence and they were landing in the pool there and Bob came out and didn’t seem to get angry about it but came out.

Q. When you walked past this house, could you see the swimming pool from the street?

A. I – I – I must have been able to because I knew it was there, so I must have, you know.”

Q. You said “Bob came out”. The man you’ve described as Bob, before he came out on that day had you met that man?

A. No.

Q. Had you ever seen that man?

A. No.

Q. What happened about the meeting with Bob and you throwing things in his pool?

A. I don’t know. He just seemed to be very friendly about it …”

12. It may be added that Exhibit A was a short document of facts agreed for the purposes of s 191 of the Evidence Act 1995 (NSW), dealing with dates of birth and the configuration of the houses. Mr Hodgson’s house was agreed to be some 150m away from the complainants’ house. The document annexed an aerial photograph which showed a swimming pool at Mr Hodgson’s house.

13. S confirmed that he had made a statement in 2019 in which he nominated a surname “Hudson”, because “Bob” had explained the difference between “Hudson” and “Hodgson” to him at the time and “that detail just stayed there over the – over the years”.

14. He said that a friendship developed, that he went into the house, but never swam in the pool. He said that he went on trips with Bob and that “he would take me up the river to Bobbin Head canoeing”, one of which was an overnight trip in which they stayed in a tent on the side of the river. He described a pianola in the house which Bob would play, and that on one occasion Bob placed his arm around him “and the next thing I knew he had an erection and I was fighting to get away from there”. He later said that he had placed his hand on Bob’s penis and that Bob had moved his hand up and down and ejaculated and then S had run away.

15. S gave evidence of a downstairs workshop under the house, which could be entered by a door on the side of the house. He said he hadn’t been back to that house, or his former home, since 1973 when he left home, aged 13.

16. He gave the following evidence, which was the subject of ground 2:

“Q. Well, the first time you went into that workshop, what happened?

A. He put us up, put me up on the – on the bench and took my pants down, and proceeded to play with me, suck my penis. And inject things into me.

Q. When you say “inject things into you”, what sort of things are you talking about?

A. He put tools inside me.”

Ground 2 was brought on the basis that the words “proceeded to play with me” was not capable of establishing beyond reasonable doubt the act of indecency of masturbating the child alleged.

17. Otherwise, S gave evidence describing the conduct giving rise to the counts involving him. S said that Mr Hodgson had taken off all of S’s clothes and placed him on the workbench. He said that he was asked to masturbate Mr Hodgson’s erect penis, and that on one occasion, Mr Hodgson attempted to have penile-anal intercourse, but was unable to penetrate him.

18. There was one major divergence from the account given to police and upon which the Crown case as particularised and opened upon was based: he said that a screwdriver was inserted into his anus metal end first.

“Q. What can you recall about Bob doing something to you with a screwdriver?

A. I can recall him putting the screwdriver into me. The small end, the large end –

Q. What, the handle or the metal part?

A. The metal part.

Q. I see. When you say [he] put it into you, what part of your body did he put it into?

A. Into my anus.

Q. How many times did he do that?

A. Many times.

Q. What’s – what’s your best recollection of what many means?

A. I don’t know, 10 or 15.”

19. S said that the first time he told anyone what had happened was when he was 40, when “I was in a drug and alcohol rehabilitation centre and it just came out one day”. S said that he had first given some indication of the complaints when participating in group therapy at an organisation for the treatment of drug addiction in 1998, some three decades later. He then said:

“Q. Who was the very first person you told in any detail about what Bob had done to you?

A. The counsellor. That was in a group session, a thing they used to call Morning Group, and then from that that grew into larger, you know, daily sessions with a counsellor for over a year period.”

20. He then gave this evidence, once again in evidence in chief, and over the objection of the defence:

“Q. Mr [xxxx], it’s the case that you didn’t think, well you didn’t see any police officer about these allegations for nearly the best part of half a century. Is that right?

A. That’s correct.

Q. Why did you wait that long?

A. Because all of a sudden it was on the television, through the, you know, priests and so on, and I was watching somebody come out of a courtroom, describing their life, what had happened to them, and I realised that that’s what had happened to me, and that I couldn’t stand by and allow another child to go through what I went through.”

21. S said that he told his younger brother, J, that he was going to the police, and gave evidence that J said “Oh, he got you too?”. J gave evidence that when S told him he was going to the police, S said to J “Mate, that’s fine, you don’t have to explain it to me, I believe you, the same thing happened to me”. It was said that there was very little communication between the brothers of their recollections of the conduct they attributed to Mr Hodgson. He said that “[t]here was probably about five sentences and they were, that I’m going to the police”.

22. After repeating that he had never been back to the house, he said that the police showed a Google Maps aerial photograph, and he identified which address the house was by reference to it. The map was tendered, and it shows a pool in the yard of the house where Mr Hodgson had lived as a young man.

The evidence of complainant S in cross-examination

23. In cross-examination, S explained that he left home when he was 13 or 13 and a half, but put himself through school to year 10, when he became an apprentice carpenter. He agreed that he became “very familiar with tools”.

24. S reiterated his evidence about how he first came to know Mr Hodgson:

“Q. Right, well now, let’s go back to the beginning. Your recollection is that the reason that you came to know the person you refer to as Bob in the first place -

A. Yep.

Q. - was because you were throwing stones or stick[s] in to the swimming pool?

A. Well, yeah.

Q. Now you’re absolutely sure about that?

A. Pretty sure.

Q. Pretty sure?

A. Yeah.

Q. And, that was the first time you met him -

A. Yes.

Q. - and that was how you met him?

A. Yep.

Q. Yes. And, that was over the fence, in to the pool.

A. I actually don’t recall a fence that well but I guess there must have been a fence. Pools have got to have fences, don’t they? But, no, I don’t recall a fence that well back in those days.

Q. But, you do recall the pool?

A. Yeah.

Q. What if I were to suggest to you the pool wasn’t built, there was no pool at that house until, at least, after 1974?

A. All right, then, fine. I don’t know -

Q. So, you -

A. – maybe it was another person’s address that I threw a stone over.

Q. Perhaps it was another person altogether and wasn’t this house?

A. No. No, I’m afraid not.”

25. In due course the defence tendered a memorandum of transfer dated 9 July 1973, whereby Mr Hodgson’s parents sold the house to a Mr McCallum, and a page of the council’s records showing that Mr McCallum applied to construct a pool at the house in 1974.

26. S said that he would see the person on his way home from school, and that it was definitely in daylight hours.

27. When S was asked about the insertion of tools into his anus, the transcript records the following:

“Q. I see. Well now, you told us that he – this man, inserted tools in your – in your -

A. .. (not transcribable)..

Q. You’re able to identify him, are you?

A. Yes.

Q. After 50 years, do you, have you seen him.

A. Absolutely.

Q. Absolutely. No problem at all about that?

A. No.”

28. Evidently S made some gesture or otherwise indicated that Mr Hodgson, in the dock, was the man whom he believed was the offender. S was giving evidence that he could identify Mr Hodgson, then aged 77, who had been in his mid to late twenties during the times specified in the indictment, without having seen him subsequently.

29. S said that the insertion of pliers into his anus caused him to bleed, and that he was never asked by his parents about blood stains on his underwear. He said that the handle of a hammer was also inserted, and a screwdriver. He then confirmed his evidence that it was the metal end of the screwdriver:

“Q. A flat-headed screwdriver, and it was the metal end, was it, that was inserted?

A. Did I tell you that?

Q. Mr [S], I’m trying to understand your evidence. As somebody who has been a tradesman, you know that a screwdriver, a flat – not a Phillips head screwdriver but a flat-headed screwdriver has two sharp edges or facets. Did it tear you open when it was inserted?

A. No.

Q. Did you bleed?

A. No.

Q. But it was inserted, and you can’t tell us how far.

A. No.”

30. The cross-examination of S concluded:

“Q. [The screwdriver] was inserted. The pliers were inserted. The hammer was inserted. And you didn’t tell anybody about it, no?

A. No.

Q. And you went back for more.

A. Yep.

Q. Over and over again.

A. Yeah.

Q. And then 40 years later you did tell someone about it.

A. Yeah.

Q. You told the police that you had been using cannabis from the age of 13.

A. Yep.

Q. Were you using cannabis at the time these events took place?

A. No.

Q. When you had had these things inserted into you, it caused pain, I suppose.

A. That’s correct.

Q. How were you travelling backwards and forwards between Bob's house and your home?

A. Walking.

Q. Not riding a bike?

A. And riding a bike, yes.

Q. After you’d had these things inserted into your anus, causing bleeding and pain, did you get on your bike and -

A. Please be accurate if you’re going to say that, right, so that means you would say, bleeding on occasion, varying occasion. It’s not every occasion. He was very careful in what he did.

Q. Did you get on your bike and ride home?

A. Not always. Remember, I was coming from school.”

The evidence in chief of complainant J

31. J’s evidence was even briefer than that of S. In its entirety, it occupies 12 pages of transcript.

32. J confirmed that he had visited his old house only five times in the past three years, even though his father still lived in the house.

33. When asked to describe the person he saw when he was in kindergarten or year 1, he also identified Mr Hodgson as the perpetrator, as follows:

“Q. When you say an individual, describe that person?

A. The gentleman that’s sitting over there.

Q. Well, you now know that the gentleman sitting over there is the man who’s on trial in these proceedings?

A. I do.

Q. You now know his name. Is that right?

A. I do.

Q. You made a statement to the police in 2019; were you able then to provide police the name of the person you are talking about?

A. I couldn’t remember at the time that I was talking to the officer, and then when it was – I was told of the name, then it registered to me, and I remembered that it was Hodgson.

Q. When you made your police statement, you didn’t specify either a first name or a last name?

A. No.

Q. What were the circumstances under which police provided you with the name, Hodgson?

A. I think it was that they said that the person that was living there at that time was Robert Hodgson.

Q. Right.

A. And then I remembered the name clearly. There are lots of names in different families that lived around my immediate area. And I remember the names of some people, not the names of others, but when it was – when that name was given to me, I remembered clearly that that was the Hodgson house.

Q. Well, back when you were six years old, did you know how many people occupied that house on the corner …?

A. To the best of my memory, it was a mother, a father and two children.

Q. Which of those four people did you have any dealings with at the age of six years?

A. Just the father, Robert Hodgson.”

34. J said there were three occasions when he went into the toolshed in the house where Mr Hodgson had lived. He placed the time at around the time his mother had died, which was 18 March 1973. He was asked in a non-leading way in evidence in chief which end of the screwdriver was inserted into his anus, and responded “not the handle, the other end” and confirmed that it was the metal end and that it caused him pain.

35. J also confirmed that there was a pool at the house when he was 6 years old:

“Q. Can you see the pool from the street as you walk by that house?

A. No, it’s got a fence.

Q. Was there a pool there when you were six years of age?

A. Yes.”

36. J described the events giving rise to the counts involving him in respect of which Mr Hodgson was convicted. J was unsure precisely when this occurred, but placed it at around the time his mother died:

“Q. Your mother passed away on 18 March 1973. Is that right?

A. It is seven – 72, 73, yes.

Q. Was your mother alive when these incidents took place?

A. I tried to explain to the police that because I was six and I can’t – I can’t – I can’t remember. To the best of my ability, I – as I told them, I know it was around the time my mother had passed. So, was it before, was it while, was it – was it at the time my mother passed, was it just after? It was somewhere in the vicinity of that time.”

37. The prosecutor then confirmed that J had never seen a photograph of the shed, and showed him five photographs as follows:

“Q. I want you to assume that these were taken by a police officer in August last year – that is 2019 – at the premises. What can you say about anything you recognise in any of those photographs?

A. What can I say about it? That’s – that’s where I was. There’s the bench, that’s the bench right there, there was the floorboards above my head, I did used to – I could – I could hear sometimes people walking around in there and they would creak. It had a very musty, horrible, dampy smelly about it. The only thing is that there were more tools around the bench. There was a mower in there and there were some – some – some gardening equipment and things like that.”

Cross-examination of complainant J

38. J’s cross-examination commenced with the change in evidence concerning the metal end of the screwdriver:

“Q. And today you’ve told her Honour it was, to use a simple term, the pointed end of the screwdriver.

A. Correct.

Q. Now, when did you decide that was the case?

A. When did I decide that was the case?

Q. Yes.

A. I remember that the handle was sticking out of my arse when the front of it was inserted in my arse. That’s why I know that it was the front part of the screwdriver.

Q. Well then why, when you were giving your statement to the police did you say that the man got a screwdriver and placed the handle into your anus?

A. I don’t remember that.

Q. You said, I want to suggest to you, ‘The man took my shorts and underwear off, leant me into the bench – lent me into the bench,’ you held onto the bench to stop yourself from falling over, ‘The man got a different screwdriver and placed the handle into my anus. This was very painful.’ Was that wrong?

A. I don’t remember saying that because I know that it was the front of it, so whether it was written incorrectly or not, I’m not sure. But I don’t remember saying that.”

39. The cross-examination moved to a slightly different topic. The witness statement which must have been part of the Crown brief was not tendered. There was no re-examination, or any other complaint or submission that counsel then appearing for Mr Hodgson had misstated the witness statement. As noted above, the particulars provided by the Crown of the indictment were that the handle of a screwdriver had been inserted into J’s anus, and the case was expressly opened by the Crown on that basis.

40. The cross-examination continued, to the effect that J remembered there was blood on his underpants on one occasion, that he did not tell his older brothers, or his sister, or his father, followed by this:

“Q. Then a month later you went back and did it again.

A. I didn’t do it again.

Q. Well, you did, didn’t you? You went back and it happened again. Would you prefer me to put it that way?

A. Correct, yes. It happened again.

Q. But you went back.

A. Correct.

Q Then a month after that you went back a third time.

A. Correct.

Q. On each occasion your body was invaded by a screwdriver.

A. Yep.

Q. whether the handle or the pointed end.

A. Yes.

Q. On each occasion it caused you pain.

A. Yes.

Q. On each occasion you were taken into a smelly, dank, dark room by somebody that you didn’t know very well. Yes?

A. Yes.

Q. And on the third occasion you took someone else with you.

A. I didn’t take them with me. They were there. That’s all I can remember.

Q. You said to the police about a month later – this is the third time, ‘I went back into the shed. This time I was with another boy the same age as me.’

A. Right.”

41. The cross-examination concluded:

“Q. You’re quite sure that this happened around the time of your mother’s death and around the time you were six?

A. Yeah I think I’ve answered that.”

Balance of the Crown case

42. A statement by the complainant’s father was tendered without objection. He was not required for cross-examination. He was aged 82. He said that the family moved to the address in 1969. Relevantly to one aspect of S’s evidence he said:

“I can never recall [S] going away with other families or other people on the weekends. He may have but I can’t remember. I can’t remember [S] ever going anywhere with other families.”

43. He said that after his wife died in 1973, he continued to work, and the children were at first looked after by nannies, but that this didn’t work out. He said that “[t]hey would be home by themselves from 3:30pm in the afternoon until 6pm at night when I returned home”.

44. He said that S was married in the 1980’s and had a child, but had financial difficulties in the late 1980s, separated from his wife and declared bankruptcy. He moved to South East Queensland. He said that in about 1995, S was “in a very concerned state”, and owed debts to his landlord and didn’t have a car. He said that “I know little about [S’s] drug taking or any rehabilitation he may have done for drug issues. I remember once [S] told me that he had been to a rehabilitation facility”. He said that S never disclosed to him what happened when he was a child, and that the first he heard of the matter was in September 2018, when S rang his father and told him that he had reported the matter to the police.

45. He said that there was a track near his home to the school, which kids used to walk along to get to school. He added “[m]y wife would drive the kids to school. They were unable to walk to school from our place”.

46. The police officer in charge of the investigation was cross-examined briefly. She confirmed that prior to charges being laid, she contacted Mr Hodgson’s half-sister, who confirmed that he had moved out in about 1972 prior to her father’s death.

47. The Crown then amended the indictment, without opposition from Mr Hodgson, to alter the dates for some of the counts based on J’s evidence, bringing forward the period in which they were said to have occurred from 18 March 1973 to 9 July 1973 on the original indictment, to 1 January 1973 to 9 July 1973 as amended. This was to accommodate J’s evidence (reproduced above) that the events took place around the time of his mother’s death. For completeness, counts 9 and 12 were different and were alleged to have taken place between 1 January 1973 and 31 December 1973. Why the time frame for those counts differed from all the others in relation to J (which all ended on 9 July 1973) was not explained. This was not a part of the Crown case on appeal.

The defence case

48. The defence tendered the memorandum of transfer establishing that Mr Hodgson’s parents sold the house in July 1973, and that the purchaser applied for development consent to construct a swimming pool in 1974.

49. Mr Hodgson gave evidence. His evidence in chief occupies fewer than five pages of transcript, and his cross-examination was some seven pages of transcript.

50. Mr Hodgson said he had lived at the house between 1970 and early 1972, but that he stopped living there in April or May 1972, and moved to a unit in Fairlight. He said that he was working at Burroughs Computers in East Sydney, as a salesman, with a territory in North Sydney. He had started working with Burroughs in January 1972, and he had moved in order to be closer to his work. His working hours were nine to five, and he would get home at 5.30pm or later. Before working for Burroughs, he had worked as a computer engineer with a company in the Sydney CBD from 1969. He had a company car, and his working hours were once again nine to five. He said that there were no extended periods when he was off work.

51. Mr Hodgson said that he built a canoe in the large garage that faced the street. He said that it would not have been possible to build the canoe in the understorey workspace, that he had never taken S out in that canoe, and never took him on a camping trip.

52. Mr Hodgson accepted that he had met S. He said, “He used to just appear when I was working in the garage”, and that he did not know J at all. It was accepted that he had never been charged with any offence in his life.

53. Mr Hodgson accepted in cross-examination that he had installed a workbench in the house in the early 1970s, because his father was complaining that he was occupying the garage building a canoe. He accepted that he had launched the canoe at Bobbin Head but denied ever taking S there. He accepted that S had been in the garage but denied ever inviting him into the house. He accepted that there was a pianola in the house, which he played very occasionally, although his father played it mostly. He denied keeping tools in the underground workroom.

54. He denied seeing the brothers after school:

“Q. Isn’t it the case, Mr Hodgson, that you saw both of the [xxx] brothers going back and forwards in front of your place when they were on their way to and from school?

A. No, I was at work.”

55. He was not cross-examined to suggest that he was not working nine to five in the city throughout this period.

56. The events giving rise to the counts were put to Mr Hodgson, and he denied them. He said that while he had known S, he had never known J, or their family, and that he had had no contact with any of them since 1972.

57. He accepted that he went by the name of Bob in those days. He was pressed on one point only, which was how he could remember a neighbourhood boy wandering in his garage. Mr Hodgson said “[h]e was the only one that ever did”.

58. The Crown conceded Mr Hodgson had no criminal record. At the conclusion the Court granted an adjournment until 11.30, and there were brief addresses occupying some 6 pages of transcript. The trial finished before lunchtime on the second day. The Court adjourned, and delivered oral reasons on the Friday three days later.

The reasons of the primary judge

59. The primary judge identified the tendency as “a tendency of the accused to have a certain state of mind being a sexual interest in young males, and to act upon that interest by inserting tools into the anus of young males, by having young males masturbate the accused, and to act in that way at the same location”.

60. Her Honour then said:

“Insofar as the offences are concerned, I give myself the following directions:

1)   That the Crown bears the onus of proof at all times;

2)   The standard of proof in each of the counts is proof beyond reasonable doubt;

3) As to delay in complaint, a direction pursuant to s 294(2)(a) and (b) of the Criminal Procedure Act 1986;

4)   Tendency directions as to tendency between counts;

5)   A Markuleski direction as to multiple counts; R v Markuleski (2001) 52 NSWLR 82;

6)   A Liberato direction: Liberato v The Queen (1985) 159 CLR 507;

7)   The accused is entitled to a good character direction included in both limbs.”

61. The first 18 pages of the oral judgment summarise the indictment, the evidence, and the addresses of counsel. The reasoning occupies a little over 6 pages. The most transparent course is to reproduce it in full.

“DETERMINATION

The accused cannot be found guilty unless I am satisfied that the evidence of each complainant is both honest and reliable. I am entitled to have regard to matters such as the demeanour of the witnesses, whether they were forthright or evasive in their responses, and the general impression they made. I am entitled to look at any evidence which impacts my assessment of their credibility.

One matter that was significant for both complainants was the accuracy of their description of the location of the workshop at the premises, and the existence and location of the workbench as described by them. This is an area of the house which would not be visible from the street and is an area that was concealed by a solid wooden door. The accuracy of the description leads to a strong support to the assertion of each witness that they had been in that location.

There is no dispute that [S] and the accused were known to each other and that [S] knew the accused by name. [S] was aware of the existence of the pianola inside the home of the accused and that the accused would play the pianola. The accused himself confirmed the existence of the pianola and that he would play it.

It is clear from exhibit 3 that there was no pool at xxxxx Street while the accused was living there. [S] cannot be right when he detailed the circumstances under which he first met the accused.

[J] said that there was a lawnmower in the workshop, and the accused gave evidence that the lawnmower was stored in the workshop.

[J] was confident that the offences were at the Hodgson’s house when he was told of the Hodgson name.

[S] appeared somewhat distressed at times as he related the allegations. He blames himself for what occurred and this was particularly evident when he referred to believing the accused when he said to the complainant that what he was doing at the time of count 1 was alright and that there was nothing wrong with it. In relation to count 6, he said he was 12 years old “And I wish I was younger, I feel like I should have known better by that age”.

I find his explanation as to why he was motivated to disclose the alleged offences so long after the event to be credible.

Apart from the issues of the swimming pool, [S] was largely unshaken in cross-examination. He made the concession that he could have been wrong about the existence of the pool quite readily. On the independent evidence, [S] was wrong as to the existence of the pool and this is a matter that must be weighed when assessing his reliability. I am entitled to accept parts and reject parts of the same witness’s evidence, particularly where there is a cogent reason. I accept the Crown Prosecutor’s submission that the nature of the offences is such that it would be memorable despite their being historical, and the issue with the pool is simply a misremembering.

While he became somewhat combative with Mr Glissan QC, I did not form the view that he was being evasive or untruthful in any of his responses.

[S] did not appear to be exaggerating and his demeanour was consistent with the content of his responses.

[J] gave his evidence in a forthright and clear manner. He impressed as a person who was confident of his recollection of events despite his age at the time. When shown the photograph of the workshop area, he impressed as a witness recognising a place where he had been and recalling details of real events. He differentiated the door to the area that he was unable to comment upon as the door being the same but was confident of the appearance of the bench and how there were other things in the area such as small tools and the mower.

His explanation in the delay in complaining was consistent with his demeanour throughout his evidence, that there was an underlying anger about what had occurred. This was particularly evident in cross-examination when it was put to him about deciding it was the pointed end of the screwdriver that was inserted and he replied, “I remember that the handle was sticking out of my arse when the front of it was inserted in my arse. That’s why I know it was the front part of the screwdriver”. Again, in cross-examination when it was put to him that “Q. Then a month later you went back and did it again?” he replied “I didn’t do it again”.

I found his explanation as to why he was motivated to disclose the alleged offences so long after the events to be credible.

In cross-examination he disagreed with the accuracy as to his statement saying that the handle was used to penetrate him. He said that that was not his memory of the event and he did not remember saying that to the police.

He was not asked if the statement was signed, if he had read it over prior to signing or if he re-read it prior to giving evidence and there was no evidence in the matter about the taking of the statement.

At no stage did he appear to be exaggerating. He was unshaken in cross-examination.

It is the evidence of both complainants that they have not discussed the detail of their allegations with the other. Unlike cases where events have been the subject of discussions within a group or family over many years, there is no evidence of contamination. There is no evidence of concoction. Both complainants give evidence of events which are strikingly similar. For all but one count, the location is the same. A similar modus operandi is used by the accused involving anally penetrating a child with household tools and having the child masturbate the accused. There are also differences, with [S] there was no penetration of the accused with tools. With [S] there was an attempt of buggery, but only on one occasion. The evidence cannot be used as coincidence evidence as there is no application for the evidence to be available on this basis.

To be able to use the evidence of any count as tendency evidence I will have to make a finding that one or more of those acts occurred. In making that finding, I do not consider each of the acts in isolation but consider all the evidence and ask whether I find that a particular act or acts relied upon actually took place. If I do, then I need to consider if from the act or acts that I have found occurred, I can conclude that the accused had the tendency to have the state of mind being a sexual interest in young males, and to act upon that interest by inserting tools into the anus of young males, by having a young male masturbate the accused, and to act in that way at the same location. If I make both of these findings, then I can use the fact to the tendency in considering if the accused committed the rest of the offences as charged. The issue of weight is a matter for me. The evidence cannot be treated as evidence of bad character justifying findings that he must have committed the acts as alleged.

I formed the opinion that both of the complainants were witnesses of truth who were doing their best to give honest accounts of events and that their evidence was honest, accurate and reliable.

The evidence of the accused is to be considered and evaluated as would be done with any witness. The Crown’s onus of proof, the good character direction and the Liberato direction all need to be taken into account.

There were times in the evidence of the accused that I formed the view that he was being evasive. This was particularly as to the two occasions when he was asked what sort of work he did on the workbench, if he took tools into the work area when he did work in there, and whether he played the Pianola.

These are a significant aspect in this trial.

His demeanour and laughing when asked in evidence-in-chief if he had ever inserted the pointed end of a tool into his own anus appeared somewhat contrived.

My overall impression was that he was not a credible witness. The rejection of the accused’s version of events means that it should be set aside, however, that still leaves me to consider whether or not the Crown has satisfied me of the guilt of the accused in relation to each of the counts beyond reasonable doubt.

Taking into account all of the evidence, I accept the evidence of [S] in relation to the acts constituting counts 2, 3 and 4 and that these acts occurred. Further, that the accused was the person who committed these acts. On the basis of this finding, I accept that this establishes that the accused had the tendencies as alleged. Having made this determination, I can use the fact of that tendency in considering whether the accused committed the other offences as charged.

In this matter there are 14 separate counts, in effect it is separate trials for each. Giving separate considerations to the individual counts means that I am 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 I were to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

In this matter, [S] gave clear, credible and reliable evidence in relation to counts 1, 2, 3 and 4 and count 6. In relation to count 5 which was particularised as the assertion of a screwdriver into the complainant’s anus, the evidence lacks specificity, he referred to the same things happening over and over. I am not satisfied of the guilt of the accused on count 5 but that is not because I had doubts about the reliability of the complainant’s evidence.

I am satisfied beyond reasonable doubt that the Crown has proved the offences of counts 1, 2, 3 , 4 and count 6 and returned a verdict of guilty on each of these counts.

I find the accused of not guilty of count 5.

In this matter [J] gave clear, credible and reliable evidence as to counts 7, 8, 9, 10, 11 and 12. Count 13 was particularised as the accused getting [J] to masturbate the accused and count 14 as the complainant manipulating the screwdriver while inserted in the accused’s anus in the presence of another child. While the complainant said that all three episodes were the same, the way it happened, when asked specifics about the incident with the other child, he spoke of the accused doing same things to that boy as he was doing to him and of the other boy fondled and touched the accused. I cannot be satisfied beyond reasonable doubt the Crown has established counts 13 and 14 as particularised. I make this finding not on the basis that I have any doubts as to the reliability of [J]. He was never asked to detail what actions he himself performed as opposed to the other child, leaving the evidence somewhat unclear.

I am satisfied beyond reasonable doubt that the Crown has proved the offences in counts 7, 8, 9, 10, 11 and 12 and return a verdict of guilty on each of these counts.

I find the accused not guilty of counts 13 and 14.”

The appeal

62. Mr Hodgson was sentenced to a term of imprisonment on 29 January 2021 of 5 years with a non-parole period of 2½ years. He filed a notice of intention to appeal on 25 February 2021 but his notice of appeal with accompanying submissions was not filed until 18 August 2021. Grounds 2, 4 and 5 were that the guilty verdicts on the various counts were unreasonable. Grounds 4 and 5 were based on the unreliability of the evidence of S and J. Ground 2 was confined to count 2, and was based on the proposition that the evidence of S reproduced above that Mr Hodgson “played with” him was incapable of sustaining the count of committing an act of indecency.

63. Ground 1 was that the trial judge erred in failing to comply with the requirements of s 133 of the Criminal Procedure Act 1986, in particular by failing to comply with s 133(2) as to the exposition of the principles of law applied in the trial and s 133(3) as to taking into account warnings. Ground 3 was that the trial miscarried on account of erroneous reasoning as to tendency evidence in the trial judgment and verdicts.

64. Grounds 1 and 3 lie as of right pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), being confined to questions of law, while grounds 2, 4 and 5 involve questions of fact, or mixed law and fact, and are available subject to leave. Ground 6 was in the alternative to the grounds based on unreasonable verdicts and was not addressed orally. It was that the primary judge did not fairly sum up, omitting key issues such as Mr Hodgson not being present at the home in 1973, or working full time in the city, or that he had no criminal record. All these grounds are linked. The failure to articulate and apply the directions summarised at the outset of the reasons dovetails with the failure to consider the evidence as a whole, and important aspects of the submissions put to the Court by Queen’s Counsel then appearing for Mr Hodgson.

65. The most convenient course is to commence with the grounds that the convictions are unreasonable. All of the evidence bearing upon each ground needs to be borne in mind, but it is necessary to start somewhere, and it is convenient to commence with the time when the offences involving J took place.

When did the offences involving J occur?

66. The evidence obtained by the police from Mr Hodgson’s half-sister was that Mr Hodgson left home in April or May 1972. That evidence accorded with Mr Hodgson’s own account. He was not cross-examined to suggest that that was wrong. It is inherently plausible that a young man aged 29 with full-time employment would leave home at that age.

67. If Mr Hodgson left home in April or May 1972, that was seven months earlier than the earliest time stated on the indictment, even as amended, for the counts involving J. It was when J had not yet turned 6. It was almost a year before J’s mother died, which was the event to which J tethered his account, and the reason for amending the indictment at the conclusion of the Crown case. J gave this evidence:

“Q. … your clear recollection is you were six years old.

A. It was around the time my mother died and I believe I was around the age of six.

Q. And you[r] recollection is quite clear about these events?

A. To the best of my memory I was around the age of six and it was around the time my mother died.”

68. But if Mr Hodgson left home in April or May 1972, that evidence was wrong. In fact, J would have been five years old, and the assaults would have taken place at least a year before the death of J’s mother.

69. This issue of timing was a prominent feature of the case. In addition to the amendment of the indictment at the close of the Crown case, it was the subject of a submission from the defence.

70. What counsel said was this:

“As well, in relation to the persons in the house, and I should pause there and point clearly to this, that the evidence obtained by the police from his sister, as well as the evidence given by the accused himself was that at least during the period 1.1.73 and on that relate to the offences alleged to have taken place by – on [J], he was not living in the house. The police officer had interviewed the sister and she received evidence that he left the house in the middle of 1972. The accused gave evidence to your Honour that he left the house in April or May, 1972. These events, even on the amended indictment, amended without objection, date from 1 January 1973 to the date of the sale of the property in July 1973.

During that time, the accused was not living in the house. The evidence before your Honour reveals that living in the house were the balance of his family, which is father, step-mother and two siblings. [J] said that there was a father and mother and two children living in the house at the time his – the offences on him took place. It’s not for me to advance an alternate hypothesis as to who the perpetrator of any of these events might have been. It is sufficient to say that the evidence raises an issue which cannot be resolved against the accused as to whether they took place in the way in which they say or whether it was possible for the accused to have been the person who was the perpetrator.”

71. The primary judge recorded the defence submission that “[t]he accused did not have the opportunity to commit the offences as he was either working or not present as he stopped living there in April or May 1972”. Despite doing so, the issue is nowhere else addressed in her Honour’s reasons. I do not see how a reasonable doubt could be removed without considering the unchallenged evidence of Mr Hodgson, supported by the evidence of what his half-sister told the investigating officer.

At what time of day did the offending take place?

72. Even while Mr Hodgson was living with his family, there was unchallenged evidence that he was working full time in the city. Once again, that evidence was inherently plausible. Any finding of guilt had to be reconciled with that evidence, unless the tribunal of fact were satisfied that it could be disregarded entirely, and there is no suggestion of that. On days when Mr Hodgson was working full time in the city, he could not have returned home before 5.30pm at the earliest; this calls into question the evidence of S and J that they encountered him regularly on their way home from school.

73. It is likely that Mr Hodgson suffered serious prejudice by reason of the delay. Documents such as his taxation or employment records are apt to have been unavailable. If the Crown were to establish Mr Hodgson’s guilt beyond reasonable doubt, it was therefore necessary to test the evidence in light of the possibility that the events happened when Mr Hodgson was working full time in the city.

74. It will be recalled that both S and J gave evidence about meeting Mr Hodgson on the way home from school. There was also evidence that when she was alive, their mother took them to and from school, and that it was too far for them to walk. All this is difficult to reconcile with Mr Hodgson being the perpetrator of the charged conduct.

75. All this was at the forefront of the defence case. It was put thus:

“He was not there when these boys were going to and from school, he was not doing the gardening, he was not there to be seen and he was employed in the CBD from nine to five throughout the entire period.”

76. None of these issues was attended to by the primary judge, save for briefly recording the submission in the passage reproduced above.

No evidence of contamination?

77. The primary judge relied upon the fact that both S and J gave credible evidence of strikingly similar events. Her Honour evidently used that fact as favouring the credibility and reliability of their evidence. That reasoning turned upon her proposition that “[u]nlike cases where events have been the subject of discussions within a group or family over many years, there is no evidence of contamination”. That is just not so.

78. Both S and J gave evidence that there was a pool in the yard of the house where the offences took place. S acknowledged his error, in a way regarded by the primary judge as believable, and of course to that extent her Honour enjoyed a considerable advantage over and above this Court. However, J also gave evidence that there was a pool (“Was there a pool there when you were six years of age? Yes”). The evidence of both S and J was wrong on that account; the pool was not installed until 1974 after the Hodgson family had left. How did both S and J come to have the same erroneous recollection of a pool? One possibility is that the events happened, but after 1973, and both had misremembered the timing; if so, then that is powerful evidence that Mr Hodgson was not the perpetrator. Another possibility is that the evidence of one had been contaminated by the other. A third is that both S and J coincidentally made the same mistake.

79. Next, both S and J told police that Mr Hodgson had inserted the handle of a screwdriver into their anuses, and that was reflected in the particulars to the indictment and the Crown’s opening. But at trial, both S and J gave evidence that Mr Hodgson inserted the metal end into their anuses. That is a striking alteration of the account of each complainant, between the making of statements to the police in 2018 or 2019, and giving evidence in 2020. One possibility is that the limited conversations (some “five sentences” – the answer does not seem to have been intended to be precise) extended to this, and there was indeed contamination. Another is that it is inadvertent contamination during the course of preparing their evidence before trial if that occurred (there is nothing on the record to suggest that it did but it is not impossible). Mere coincidence about something as directly related to the offending seems unlikely.

80. True it is that there was no direct testimonial or documentary evidence of contamination. However, the fact that both complainants’ recollection of the pool was wrong in the same way, and the fact that both complainants altered their account of a key aspect of the offending in the same way makes the possibility of contamination one that is very much alive on the evidence. Nowhere in her Honour’s reasons is this addressed. Neither the Crown not the defence explored the content of the five sentences. The possibility of contamination needed to be addressed if her Honour were to proceed on the basis that the evidence of S and J was independent.

Inconsistencies with S’s account

81. S said that he had gone on an overnight canoeing holiday with Mr Hodgson. Mr Hodgson denied this. S’s father gave unchallenged evidence (by a witness statement) that he could recall no such occasion. The contradiction was not addressed by the primary judge.

82. The error by S as to the swimming pool was not a merely peripheral detail (as it was in the case of J). It was the reason that he first came into contact with the man whom he said had assaulted him. If that man were Mr Hodgson, then this aspect of S’s account is a false reconstruction, perhaps assisted by having been shown by police the aerial photograph showing the house and the swimming pool.

The inherent unlikelihood of the complainants’ accounts

83. I am conscious of the difficulties in asking how likely it is that an abused child will act in a particular way. Even so, a number of features of the accounts of S and J are decidedly improbable. Both said that they were hurt by the insertion of tools into their anuses. But both said that they continued to return to the home, where they suffered the same treatment. S said it happened 10 or 15 times over a two year period. As it was put in closing address:

“This is a 10 or 12 year old – 10 to 12 year old boy, somewhere in that two year period, just going back and subjecting himself to effectively if he’s to be believed, some form of physical abuse … It’s what I put forward as the inherent improbability of the events alleged having occurred. If this was a different kind of case, a simple case of an adult preying on a child and involved digital penetration or fellatio or some of the other things that one sees ordinarily in these Courts, your Honour might be in an easier position when it comes to accepting the evidence. But here the conduct is so bizarre and so invasive, that to accept one, that it happened, two that it was repeated and that the victim went back over and over again, over a period of – that the Crown puts as somewhere in the vicinity of two calendar years is inherently improbable as alleged.”

84. Similarly, J went back three times on his account.

85. A further aspect of the inherent improbability is that both S and J said that not only were they in pain, but they also on occasion bled from their anuses. It is improbable that that passed unnoticed when their clothes were washed, and if noticed it is improbable that a parent did not act or raise it with them.

86. None of this was addressed by the primary judge. It was necessary to do so before a conclusion of guilt beyond reasonable doubt could be reached.

The warnings and directions required by s 133

87. The trial judge was not merely required to recite the applicable warnings and directions. Her Honour was required to take them into account. “A mere incantation of the warnings and directions without them being taken into account is insufficient”: W v R [2014] NSWCCA 110 at [136], referring to Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [33]. The incantation that Mr Hodgson was entitled to “a good character direction included in both limbs” [sic] was apparently reflected in the reasoning in one sentence, “The Crown’s onus of proof, the good character direction and the Liberato direction all need to be taken into account”. There was a deal of work for that direction to do, Mr Hodgson having lived an unexceptionable life. His good character bore upon the unlikelihood of his having committed the present offences, which suffered from the inherent improbabilities summarised above, and in supporting the credibility of his evidence. The primary judge accepted the evidence of Mr Hodgson that he had built the workroom and that there was a pianola in the house which he played, using these to buttress her assessment of the credibility and reliability of S and J, but seemingly without regard to their confirmatory effect upon the reliability of Mr Hodgson’s evidence. Her Honour’s rejection of the entirety of his evidence which did not accord with that of S and J was made without explicitly attending to the substance of the direction on good character.

88. Her Honour also said that she gave herself a Markuleski direction, without enunciating its content. Once again, this had real work to do, especially in relation to the complainant J. Her Honour acquitted on counts 13 and 14, which involved Mr Hodgson masturbating J, and manipulating the screwdriver handle in his own anus, in both cases in the presence of another child. J gave no evidence of either offending conduct. Her Honour said that she did not have doubts about the reliability of J, on the basis that “[h]e was never asked to detail what actions he himself performed as opposed to the other child, leaving the evidence somewhat unclear”. Her Honour was correct; the evidence was unclear, but that was largely because, so far as the transcript discloses, J had a very limited recollection of what occurred. The identity of the other boy was not known, and what precisely occurred was not known. J repeatedly said that his memory was poor (“I can’t remember his name”, “I can’t remember much more about him outside of that time”, “I don’t ever remember him ejaculating. It might of. I don’t know. I was six, so I wouldn’t of really known what that was, but to the best of my memory, again, it was – it was the same – it was – the way he did things was the same”). All this was required to be taken into account when assessing the evidence on the other counts involving J.

87. Substantially the same is true in relation to count 5. This was the count particularised as inserting the handle of a screwdriver into S’s anus. The evidence of S was that the metal part of the screwdriver was inserted. While her Honour said that S’s evidence on this count lacked specificity, her Honour did not add that it was at odds with the way the Crown case was opened and particularised. This went squarely to the reliability and credibility of S, and not merely in relation to this count, but to the whole of his evidence.

88. Although the primary judge gave a direction in accordance with s 294(2) of the Criminal Procedure Act 1986 (NSW) concerning the delayed complaint by S and J, she did not give a direction under s 165B of the Evidence Act 1995 (NSW). Importantly, her Honour was not asked to do so. On the other hand, it is overwhelmingly likely that Mr Hodgson suffered a significant forensic disadvantage occasioned by the delay. The difficulties in obtaining documentary records of his employment and address are mentioned above. Had an application been made, some warning would have had to have been given.

89. However, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies, and this ground only leads to a retrial. Accordingly, in light of Mr Hodgson’s success on other grounds, there is no occasion to consider the effect of s 165B any further.

Recognition in the dock

92. Both S and J purported to recognise Mr Hodgson in the dock. I saw Mr Hodgson by videolink from gaol when the appeal was heard. He is now 79. He looks his age. He was almost 78 when the trial took place. He does not appear to have any distinctive features (such as a birthmark or obvious deformity) which could assist identification fifty years after the event.

93. It was accepted that the dock identification was of no value. On one view it goes further, tending in favour of a conclusion that the evidence of S and J is unreliable, because they simply could not reliably identify the old man 50 years after the event. But as no submissions were made on that point, I take it no further.

The significance of the primary judge’s assessment of demeanour

94. The primary judge was entitled to take into account the demeanour of S and J and Mr Hodgson.

95. However, it is clear from her Honour’s reasons that she placed considerable weight on the demeanour of all three men, but without relying on an analysis of how their evidence squared with the undisputed and inherently probable considerations mentioned above. That approach goes against the tide of a deal of authority. Kirby A-CJ said in Galea v Galea (1990) 19 NSWLR 263 at 266 that:

“In many cases today, conscious of the mistakes that can be made about credibility based upon the impression of witnesses in the artificial circumstances of a courtroom, judges at first instance disclaim the resolution of factual disputes by reference to witness demeanour.”

96. The joint judgment in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] observed:

“It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):

‘... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” (citations omitted)

97. In Prouten v Chapman [2021] NSWCA 207 at [12] I said:

“Nothing has changed in the last quarter century. Some witnesses are good at lying. Probably much more frequent are those witnesses who have come to believe the truth of their testimony, unreliable though it may be. Human memory is unstable and malleable at the best of times, and the practices and incentives of litigation exacerbate the position. For many decades judges have been conscious of the limitations of their ability to discern anything meaningful from the demeanour of a witness. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [23]-[25], statements by Sir Thomas Bingham, Lord Devlin, Browne LJ, MacKenna J and Sir Richard Eggleston QC were collected by Ipp JA in support of the proposition that ‘it is no wonder that judges and jurists of the highest eminence have expressed deep scepticism about the reliability of demeanour findings.’ That growing appreciation of the limits of the advantage of a trial judge seeing the witness give evidence makes it more likely that the judge will attribute no or only limited reliance on demeanour. Hence the significance of attending to whether a particular finding challenged on appeal is one which is demeanour-based.”

98. It was open to the primary judge to put those familiar reservations about judges’ ability to discern truth from falsehood and distinguish reliable from unreliable evidence to one side and rely upon demeanour. But while it was open to her Honour to rely upon demeanour, that did not absolve her from considering the matters established as fact, or the aspects of the defence case which could not be excluded beyond reasonable doubt. It is trite that a court’s obligation to give reasons in a civil case is not satisfied merely by stating that the judge accepts one side as a witness of truth and rejects the other; it is necessary to attend to all of the evidence and to the submissions which were made. The position is no different in a criminal trial conducted in accordance with s 133 of the Criminal Procedure Act.

99. It is conventional to start with the incontrovertible or unchallenged facts and seek to evaluate the conflicting testimonial evidence against those matters. In the present case, that would have involved commencing with the ages of S, J and Mr Hodgson in the period 1970-1973, the dates they lived in the suburb, and when the complainants’ mother died. Although that is often the most convenient course, it is also open to approach the review of the evidence in other ways. But it is necessary to review all of the evidence, and to explain how that review has led to the verdicts on each of the counts.

100. No aspect of the Crown case called into question Mr Hodgson’s inherently plausible evidence that he was working at the time, and simply was not in a position to interact with S and J on their way to and from school. Nor did the Crown dispute the evidence adduced as to Mr Hodgson leaving home in April or May 1972, casting doubt upon the entirety of J’s evidence. When to those matters are added Mr Hodgson’s good character, the inherent improbability of the complainants’ accounts, the complainants’ shared mistake concerning the swimming pool, their altered accounts that it was the metal end rather than the handle of a screwdriver that was inserted into them and the other matters mentioned above, there is – to say the very least – a reasonable doubt which the trial judge should have held as to his guilt on any of the counts.

101. Ground 2 does not arise, because of the conclusion reached on grounds 4 and 5. (I am conscious that ground 2 was the only ground leading to an acquittal on count 2, and that ground 5 was expressed to be confined the verdicts on counts 1, 3, 4 and 6. But the same reasoning undermining the acceptance of the other counts based on the evidence of S applies with equal force to count 2.) I therefore address it only briefly, and tentatively, because it is not dispositive, and the Court did not hear full argument on the point. As presently advised, were count 2 to stand alone, I favour the view that it would be quite artificial to determine it merely on the basis of the imperfect record of the trial that is the transcript. This is a ground where, confined as it is to a very short passage in S’s evidence, it would be appropriate to view the recording on that part of the evidence, in accordance with what was said in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [31]. The transcript may not be complete, or S may by some non-verbal means (for example a gesture) have communicated unambiguously that when he said “proceeded to play with me, suck my penis. And inject things into me” that included the act of indecency which grounded this count. Because nothing turns on this ground, it is unnecessary to take the matter any further.

102. Ground 3 turns in part upon an aspect of the trial not hitherto mentioned. Presumably there was a tendency notice in the Crown brief, but it was not tendered at trial. It is not available to this Court, and it is far from clear that her Honour saw it. There was no challenge to the reception of the evidence of each complainant. Counsel who appeared at trial for Mr Hodgson deferred the question of the scope of the tendency evidence until closing address, and then maintained that tendency evidence “is not of great assistance in this case”.

103. The Crown accepted that “[t]he applicant makes a valid criticism in this ground as to the lack of specificity given the precise nature of the tendency, the basis upon which it was established and how it was to be utilised”, and added, with respect correctly, that “[h]er Honour was not assisted by counsel in relation to the tendency evidence, despite asking for assistance as to precisely what the tendency alleged” was.

104. This ground would lead only to a retrial, and does not arise in light of the success on other grounds. It is not necessary to consider it any further.

Conclusion

105. Those reasons explain why I participated in the orders quashing the convictions at the conclusion of the hearing, and why I propose that this Court now order that Mr Hodgson be acquitted on all the counts in respect of which he was formerly found guilty.

106. I propose the following additional order:

“Further to the orders made on 18 March 2022, enter acquittals on counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 on the indictment dated 2 November 2020.”

107. In accordance with what was said during the hearing, these reasons will not be published on CaseLaw for a period of seven days. Any application for any part of them to be redacted, or for any other orders should be made by the parties by email to my Associate, copied to the other side, within that timeframe. If an application is made, it should be accompanied by short submissions explaining the basis on which any such redaction or order is sought and how it is consistent with the public interest in open justice to which s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW) refers.

108. ROTHMAN J: I agree with Leeming JA. I agree with his analysis of the evidence and the orders he proposes. I would add the following comment.

109. Accepting, as I do, that each of the complainants was abused, there are a number of fundamental issues each of which have been the subject of comment by Leeming JA. If the pool were in existence at the time of the abuse, then the applicant could not have been the perpetrator.

110. If, as is uncontroverted, the applicant worked as described and left his parents’ home at the time given, the applicant could not have been the person seen by the complainants on their way home from school tending his lawn and/or garden.

111. Nor could he have perpetrated the abuse at the time specified in the offence. Further, if, as one of the complainants testified, it was the father in the household who was the perpetrator of the abuse, it was not the applicant.

112. The evidence discloses there was some unintended contamination of the evidence when the Police suggested the applicant’s name. There may have been more. That contamination may have worked against the Crown. If there were no other contamination, then there is more than a reasonable doubt as to the guilt of the applicant; he could not have been the perpetrator of the abuse.

113. The reasons given by Leeming JA and the above are the reasons I joined in the orders entered and in these further orders.

114. HAMILL J: I have had the advantage of reading the draft judgment of Leeming JA. His Honour’s judgment encapsulates the reasons I joined in the orders made on 18 March 2022 set out by the presiding Judge at [1]. Essentially, at the conclusion of the hearing, I was satisfied that the applicant had made good his ground asserting that the trial judge failed to comply with s 133 of the Criminal Procedure Act 1986. I also agree with the further order proposed by Leeming JA at [106], that is to enter verdicts of acquittal on all remaining counts. I have reviewed the record of the trial and have a reasonable doubt as to Mr Hodgson’s guilt. I am satisfied that this doubt cannot dispelled by the advantages enjoyed by the trial Judge and is a doubt that her Honour ought to have entertained.

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Decision last updated: 20 April 2022