Hughes v R

[2015] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Hughes v R [2015] NSWCCA 330

Hearing dates:

28 September 2015; 29 September 2015; 30 September 2015

Date of orders:

21 December 2015

Decision date:

21 December 2015

Before:

Beazley P;
Schmidt J;
Button J

Decision:

(1)   Refuse leave to raise ground 5 of the appeal.
(2)   Appeal against conviction dismissed.
(3)   Grant leave to appeal against sentence.
(4)   Appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction – sexual assault offences – victims aged under 16 years

 

CRIMINAL LAW – whether trial judge erred in refusing permanent stay – effect of publicity on jury – effect of social media on jury

 

CRIMINAL LAW – application for voir dire – application to cross-examine – whether trial judge properly accounted for risk of contamination and concoction – evidence of prior complaint

 

CRIMINAL LAW – tendency evidence – significant probative value – whether trial judge erred in admitting tendency evidence – whether trial judge properly accounted for risk of contamination and concoction in assessing significant probative value – Evidence Act 1995 (NSW), s 97 – prejudicial effect of tendency evidence – Evidence Act 1995 (NSW), s 101 – whether directions to jury sufficient

 

CRIMINAL LAW – miscarriage of justice – whether trial miscarried as a result of Crown prosecutor’s cross-examination and final address – whether directions to jury sufficient

  CRIMINAL LAW – appeal against sentence – whether sentence too severe – objective seriousness of offending – sentencing practices at time of offending – impact of extra curial punishment – effect of victim impact statements

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

AE v R [2008] NSWCCA 52
Bailey v R (1988) 35 A Crim R 458
BJS v R [2011] NSWCCA 239
BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532
BP v R; R v BP [2010] NSWCCA 303
Browne v Dunn (1893) 6 R 67
Cassar v R [2013] NSWCCA 147
Ceissman v R [2015] NSWCCA 74
Cornwell v R [2015] NSWCCA 269
Crofts v R [1996] HCA 22; 186 CLR 427
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
Doyle v R; R v Doyle [2014] NSWCCA 4
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
DJW v R [2015] NSWCCA 164
Dousha v R [2008] NSWCCA 263
Dupas v The Queen [2010] HCA 20; 241 CLR 237
Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
FB v R; R v FB [2011] NSWCCA 217
Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
House v The King [1936] HCA 40; 55 CLR 499
JM v R [2008] NSWCCA 254
JM v R [2014] NSWCCA 297
Jones v R [2014] NSWCCA 280
Jubraeel v R [2015] NSWCCA 131
KJR v R [2007] NSWCCA 165; 173 A Crim R 226
KNP v R [2006] NSWCCA 213
Libke v The Queen [2007] HCA 30; 230 CLR 559
Livermore v The Queen [2006] NSWCCA 334; 67 NSWLR 659
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Magnuson v R [2013] NSWCCA 50
McCullough v The Queen (1982) 6 A Crim R 274
McIntosh v R [2015] NSWCCA 184
Mikael v R [2015] NSWCCA 294
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Palmer v R [1998] HCA 2; 193 CLR 1
Pfenning v The Queen [1995] HCA 7; 182 CLR 461
Power v The Queen [1974] HCA 26; 131 CLR 623
RHB v The Queen [2011] VSCA 295
Ryan v R [2001] HCA 21; 206 CLR 267
R v Burrell [2004] NSWCCA 185
R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Glennon [1992] HCA 16; 173 CLR 592
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v Hughes (District Court (NSW), Zahra DCJ, 14 February 2014, unrep)
R v Hughes (District Court (NSW), Zahra DCJ, 16 May 2014, unrep)
R v Keir [2004] NSWCCA 106
R v Li [2003] NSWCCA 407
R v Liristis [2004] NSWCCA 287
R v Lockyer (1996) 89 A Crim R 457
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329
R v PWD [2010] NSWCCA 209; 205 A Crim R 75
R v Rugari [2001] NSWCCA 64; 122 A Crim R 1
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Shore (1992) 66 A Crim R 37
R v Slack [2004] NSWCCA 128
R v Smith (1987) 27 A Crim R 315
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Saoud v R [2014] NSWCCA 136; 87 NSWLR 481
Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528
Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
Turkmani v R [2014] NSWCCA 186
Velkoski v The Queen [2014] VSCA 121
Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Wood v R [2012] NSWCCA 21; 84 NSWLR 581

Category:

Principal judgment

Parties:

Robert Lindsay Hughes
Regina

Representation:

Counsel:
Mr P Boulten SC (Applicant)
Ms N Noman SC (Crown/Respondent)

  Solicitors:
Greg Walsh & Co (Applicant)
Solicitor for Public Prosecutions (Crown/Respondent)

File Number(s):

2012/386504

Publication restriction:

Yes 1. Prohibition on publication of any matter identifying or likely to lead to identification of complainants pursuant to s 578A Crimes Act 1900 (NSW) (unless publication is made with the consent of the complainant pursuant to s 578A(4)(b)). 2. Non-publication order in relation to any matter identifying or likely to lead to identification of tendency witnesses. This non-publication order does not apply to tendency witnesses who consent to publication.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Law

Date of Decision:

16 May 2014

Before:

Zahra DCJ

File Number(s):

2012/386504

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted by a jury of ten sexual offences against four victims, when each was under 16 years of age. The jury was unable to reach a verdict in relation to another count involving a fifth victim, also aged under 16. The applicant was sentenced to an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years. The applicant advanced 14 grounds appealing both his conviction and sentence.

The applicant’s case on appeal raised the following issues:

(1)   Whether his Honour erred in refusing an application for a voir dire to determine issues relating to a permanent stay and separate trials of the counts with which the applicant was charged;

(2)   Whether his Honour erred in refusing to permanently stay the indictment due to adverse publicity regarding the applicant;

(3)   Whether his Honour erred in respect of his ruling that all the tendency evidence was admissible, and consequently, in refusing the application for separate trials of the counts in respect of each victim;

(4)   Whether his Honour’s directions to the jury concerning the risks of contamination and concoction and the use of the tendency evidence were inadequate;

(5)   Whether the trial miscarried because of the manner in which the Crown Prosecutor cross-examined the applicant, addressed the jury and delivered her final address, and whether his Honour erred in not discharging the jury following the final address; and

(6)   Whether the sentence imposed by his Honour was too severe.

The applicant contended that these errors amounted to a miscarriage of justice.

Leave to appeal was sought, and granted, as to the applicant’s appeal against sentence. Leave to appeal was sought and refused in relation to ground 5, namely, whether his Honour’s directions as to tendency evidence were inadequate.

Held per the Court, dismissing the appeal:

(1)   The question as to whether a trial judge should permanently stay a trial cannot be approached prospectively. In circumstances where a trial has been held after an application to stay the trial has been refused, what actually transpired at trial is to be considered in assessing the decision to refuse a stay, including the steps taken to ensure a fair trial and the results of those steps. [62]

Dupas v The Queen [2010] HCA 20; 241 CLR 237

(2)   Notwithstanding developments in technology and social media, it is expected that juries will decide cases on the evidence and in light of the submissions advanced at trial and the directions of law which are given by trial judges. The sequences of events at trial did not leave it open to doubt that the jury decided the applicant’s case on the evidence, as it had been directed. [71], [79]

(3)   It is not part of a judge’s function to make his or her own findings as to the likely weight of evidence, or its likely acceptance or rejection by a jury. It is conceivable that there may be cases in which evidence of concoction or contamination gives rise to competing inferences, which are relevant to a determination of the probative value of the evidence by a judge. Given the evidence of prior complaints, this was not such a case. [94]-[95], [200]-[204]

BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532; Jones v R [2014] NSWCCA 280; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758l; R v XY [2013] NSWCCA 121; 84 NSWLR 363; McIntosh v R [2015] NSWCCA 184

(4) For evidence to be admissible as tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW), it is not necessary that it exhibit “underlying unity”, “a modus operandi” or a “pattern of conduct”. Rather, the admissibility of tendency evidence requires that it have “significant probative value”. The extent and nature of any similarity is nonetheless relevant to that question. [166]-[167], [188]

Saoud v R [2014] NSWCCA 136; 87 NSWLR 481; R v Ford [2009] NSWCCA 306; 201 A Crim R 451

(5)   Tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which an accused is charged. There is a wide range of evidence relevant to the determination of the guilt of a person of a particular crime. The question to be asked is whether conduct said to exhibit a tendency allows an inferential process of reasoning that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion the subject of the charge or charges. [160], [182]-[185]

Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233; Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206; FB v R; R v FB [2011] NSWCCA 217; Doylev R; R v Doyle [2014] NSWCCA 4; DAO v R [2011] NSWCCA 63; 81 NSWLR 568; R v PWD [2010] NSWCCA 209; 205 A Crim R 75; BP v R; R v BP [2010] NSWCCA 303; R v Ford

(6) Section 101(2) involves an evaluative judgment by the trial judge, not the exercise of a discretion, as to the prejudicial effect evidence may have on the defendant, taking into account the ameliorating effect of any directions that may be available. The principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of such a judgment. [189], [192]

R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; R v Ford; DAO v R; R v Fletcher; Ceissman v R; R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329; Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528

(7)   The questions asked by the Crown prosecutor in cross-examination of the applicant were not inconsistent with the obligations governing the conduct of a Crown prosecutor, nor did they reverse the onus of proof. While aspects of the final address of the Crown prosecutor were inappropriate, some of them seriously so, they led to no miscarriage of justice. It was not beyond the bounds of the legitimate exercise of discretion by the trial judge to deal with these matters by way of firm directions to the jury. [280], [320]

(8)   There was no error in his Honour’s factual findings or in his approach to the assessment of the nature and seriousness of the applicant’s offending for the purpose of sentencing. His Honour was well aware of the distinction between not increasing a penalty based on aggravation and not granting an offender leniency on account of the fact that the events charged were not isolated incidents. [351], [353]

Dousha v R [2008] NSWCCA 263

(9)   His Honour properly regarded the sentencing practices at the time when the offence was committed and, in light of those practices, his conclusions as to the non-parole period and aggregate sentence were properly open to him. [358]

Magnuson v R [2013] NSWCCA 50; Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540

(10)   No error was established as to the weight his Honour placed upon the applicant’s evidence of extra curial punishment, or his consideration of how harsh the applicant’s conditions of custody were likely to be. Nor did his Honour err in his consideration of the victim impact statements and sworn evidence received from the complainants at trial. [370], [372]-[373]

R v Slack [2004] NSWCCA 128

(11)   The incidents of extra curial punishment the applicant has suffered while in custody should not have happened, and raise matters of public interest which ought to be referred by the Crown to the Minister and the Commissioner of Corrective Services (NSW). [390]

Held per the Court, refusing leave to appeal ground 5:

(12)   When considered as a whole, his Honour’s written and oral directions to the jury as to the use of tendency evidence were correct and adequate. A direction in stronger terms was not required. [234]

Jubraeel v R [2015] NSWCCA 131; Criminal Appeal Rules, r 4

Judgment

1. THE COURT: On 7 April 2014, a jury convicted Robert Lindsay Hughes of nine sexual offences committed between 1984 and 1987 against three victims, when each was aged under 16 years. On 8 April he was convicted of a 10th offence committed in 1990, involving an act of indecency towards a fourth victim, also then aged under 16 years. The jury was then discharged, being unable to reach a verdict in relation to another count involving a sexual offence, which it was alleged he had committed in 1988, against a fifth victim, who was also then aged under 16 years.

2. On 16 May 2014, Zahra SC DCJ sentenced Mr Hughes to an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years, to date from 7 April 2014.

3. Mr Hughes appeals against his conviction and seeks leave to appeal against sentence. Leave is required in respect of ground 5 on the conviction appeal in accordance with r 4 of the Criminal Appeal Rules. For convenience, Mr Hughes is hereafter referred to as the applicant. His case is that he has been the victim of a miscarriage of justice.

The offences

4. The charges of which the applicant was convicted were as follows:

Count	Section (Crimes Act 1900 (NSW))	Detail	Maximum Penalty	Indicative Sentence
1	61(D)(1)	Between 1 January 1984 and 30 April 1985 at Roseville in the State of New South Wales did have sexual intercourse with JP, a person under the age of 16 years, namely 14 or 15 years, without the consent of JP, knowing that she was not consenting. Whilst the complainant was lying down in his daughter’s room, the applicant rubbed her vagina and clitoris before inserting his finger inside her vagina. The complainant pushed his hand away and the applicant licked her right cheek before leaving the room.	10 years	5 years
2	61(D)(1)	Between 1 January 1984 and 30 April 1985 at Roseville in the State of New South Wales did have sexual intercourse with JP, a person under the age of 16 years, namely 14 or 15 years, without the consent of JP, knowing that she was not consenting. Whilst the complainant was lying down in his daughter’s room, the applicant rubbed her vagina and clitoris ‘roughly’.	10 years	5 years
3	61(E)(1)	Between 1 March 1985 and 1 May 1986 at Artarmon in the State of New South Wales did assault SH and at the time of the assault did commit an act of indecency upon SH, a person then under the age of 16 years, namely 6, 7 or 8 years. While at a sleepover at the applicant’s house, the applicant had the complainant touch and masturbate his erect penis until he ejaculated on her arm.	6 years	4 years
4	61(E)(1)	Between 1 March 1985 and 1 May 1986 at Artarmon in the State of New South Wales did assault SH and at the time of the assault did commit an act of indecency upon SH, a person then under the age of 16 years, namely 6, 7 or 8 years. Immediately after the events described in Count 3 above, the applicant rubbed his penis on the outside of the complainant’s vagina so it was covered with ejaculate.	6 years	4 years
5	61(E)(1)	Between 1 March 1985 and 1 May 1986 at Artarmon in the State of New South Wales did assault SH and at the time of the assault did commit an act of indecency upon SH, a person then under the age of 16 years, namely 6, 7 or 8 years. While she was at a sleepover at the applicant’s house, the applicant had the complainant touch and masturbate his erect penis until he ejaculated on her arm.	6 years	4 years
6	61(E)(1)	Between 1 March 1985 and 1 May 1996 at Artarmon in the State of New South Wales did assault SH and at the time of the assault did commit an act of indecency upon SH, a person then under the age of 16 years, namely 6, 7 or 8 years. Immediately after the events described in Count 5 above, the applicant rubbed his penis on the outside of the complainant’s vagina so it was covered with ejaculate.	6 years	4 years
7	61(E)(1A)	Between 1 December 1986 and 28 February 1987 at Manly in the State of New South Wales did assault AK, and at the time of the assault did commit an act of indecency upon AK, a person then under the age of 16 years, namely 9 years, the said AK then being under the authority of Robert Lindsay Hughes. Whilst at the beach the applicant encouraged the complainant to swim between his legs and when she did so, his penis was exposed from his swimmers. The applicant then closed his legs on the complainant when she swam through his legs, pinning her torso.	6 years	2 years and 6 months
8	61(E)(1A)	Between 1 December 1986 and 28 February 1987 at Manly in the State of New South Wales did assault AK, and at the time of the assault did commit an act of indecency upon AK, a person then under the age of 16 years, namely nine years, the said AK then being under the authority of Robert Lindsay Hughes. The applicant again exposed his penis as the complainant swam through his legs and closed his legs pinning her torso.	6 years	2 years and 6 months
9	61(E)(1A)	Between 31 December 1986 and 1 February 1987 at Artarmon in the State of New South Wales did assault AK, and at the time of the assault did commit an act of indecency upon AK, a person then under the age of 16 years, namely 9 years, the said AK then being under the authority of Robert Lindsay Hughes. Whilst administering ear drops to the complainant, the applicant had her head in his lap, and rubbed his penis against the side of her face.	6 years	2 years and 9 months
11	61(E)(2)	Between 1 April 1990 and 31 August 1990 at Epping in the State of New South Wales, did commit an act of indecency towards SM, a person under the age of 16 years, namely 12 or 13 years. The applicant exposed his penis to SM.	2 years	1 year

5. Count 10, an offence under s 60(E)(2) of the Crimes Act of which the applicant was not convicted was:

“Between 1 September 1988 and 4 December 1988 at Mosman in the State of New South Wales incited EE, a person under the age of 16 years, namely 15 years, to commit an act of indecency with Robert Lindsay Hughes.

As [the applicant] kissed the complainant, he encouraged her to touch his erect penis.”

The grounds of appeal

6. The grounds of appeal advanced in the notice of appeal were:

“Ground 1: His Honour erred in refusing an application for a voir dire to determine issues relating to a permanent stay and separate trials of the counts against [the applicant]

Ground 2: His Honour erred in refusing to permanently stay the indictment.

Ground 3: His Honour erred in refusing the application for separate trials of the counts

Ground 4: His Honour erred in respect of his ruling that all of the tendency evidence was admissible

Ground 5: His Honour’s directions to the jury concerning their use of the tendency evidence were inadequate

Ground 6: His Honour’s directions concerning the risks of contamination were inadequate

Ground 7: The trial miscarried because of the manner in which the Crown Prosecutor cross-examined [the applicant]

Ground 8: The trial miscarried because of the manner in which the Crown Prosecutor addressed the jury

Ground 9: His Honour erred in refusing to discharge the jury following the Crown Prosecutor’s final address

Ground 10: His Honour erred by failing to adequately direct the jury concerning the Crown Prosecutor’s final address

Ground 11: The sentence imposed by his Honour was too severe because:

(i)   His Honour erred in assessing the objective seriousness of [the applicant’s] offending;

(ii)   His Honour had insufficient regard to sentencing practices at the time of the offending;

(iii)   His Honour had insufficient regard to the [applicant’s] extra curial punishment; and

(iv)   His Honour fell into error in his approach to the victim impact statements.”

7. During the course of the applicant’s submissions, three further grounds were sought to be advanced:

“Ground 12:   The trial miscarried as a consequence of his Honour’s refusal of the application for a permanent stay of proceedings.

Ground 13:   The trial miscarried as a consequence of his Honour’s refusal to separate the counts on the indictment.

Ground 14:   His Honour’s sentencing exercise miscarried because it was not fully apparent to the court at the time of sentencing how harsh the [applicant’s] conditions of custody were likely to be.”

8. The Crown did not oppose the leave sought in relation to grounds 12 and 13, in respect of which leave was granted at the hearing. Leave to advance ground 14 was opposed.

Pre-Trial Publicity

9. Before turning to the grounds of the appeal, the unusual level of attention which the allegations made against the applicant and the trial generated in mainstream and social media should be explained.

10. There was no issue between the parties that there had been an extraordinary level of interest in the allegations the subject of the charges, reflected by mainstream media reports over the course of the preceding two years, as well as in social media. It was also common ground that the nature of the media coverage was correctly described by Zahra DCJ in his 14 February 2014 permanent stay judgment (R v Hughes (District Court (NSW), Zahra DCJ, 14 February 2014, unrep)), where his Honour referred in detail, at pp 2 – 12, to extracts of reporting of specific allegations against the applicant, in both mainstream and social media. These reports were also variously referred to in his Honour’s 14 February tendency judgment (R v Hughes (District Court (NSW), Zahra DCJ, 14 February 2014, unrep)).

11. The applicant was an actor who had the lead role in a well-known Australian series, Hey Dad..!, which aired in the late 1980’s to the mid-1990’s. The complainant, SM, had played the role of his daughter in that series. An editor of the magazine Woman’s Day, Mr Jackson, became aware of rumours that the applicant had abused SM, while they worked on the program together. In 2010 he asked a publicity agent, Mr Moriarty, to approach SM about an interview. Mr Jackson later interviewed SM and published an article in Woman’s Day in March 2010, which did not name the applicant, but contained allegations of sexual abuse against a cast member.

12. SM then lived in America and the applicant in Singapore. She later agreed to be interviewed by the television program, A Current Affair. That interview was later broadcast on 22 March 2010. Again the accused was not named. Other complainants then came forward. During a second interview broadcast on 25 March 2010, in which JP and her sister were also interviewed, it was alleged that the accused had engaged in sexual misconduct. AA, later called as a tendency witness, then came forward.

13. It emerged at trial that Mr Moriarty and SM had both received payments for interviews which SM had given. In total, SM had received some $100,000.

14. Both the magazine article and these television programs generated considerable interest, including in the mainstream media and social media. A police investigation into the applicant began soon afterwards. The applicant was confronted by media in Singapore. That confrontation also received media coverage. He then moved to London, where he was arrested on 9 August 2012, by the London Police Extradition Unit. He did not contest extradition and was granted conditional bail. He later surrendered to police and was transferred to Sydney. This, too, attracted media attention, as did the later court proceedings.

15. In the permanent stay judgment, Zahra DCJ described the media coverage at each of these stages to have been “substantial and extensive” and in March 2010 to have been “intense and widespread”. On the stay application, the applicant had tendered evidence of newspaper publications, television and radio reports gleaned through media monitoring organisations, as well as what internet searches using the search engine Google had revealed, and what had been published on other social media, including Facebook and Twitter.

16. Zahra DCJ outlined in detail the media reporting, by reference to the titles of published articles. He noted that cast members had been interviewed, and that they had referred to rumours of sexual misconduct by the applicant toward young cast members, as well as to the specific allegations made by SM. Photos of SM and the applicant, while she was a small child, were widely published. That reporting, his Honour found, maintained some momentum from 2010 to 2012, largely due to reporting of the continuing delay in the police investigation. In that period, there was ongoing reporting about SM’s complaints, as well as extensive reporting of complaints by other complainants, some of whom were interviewed and their complaints broadcast on television.

17. His Honour at pp 6 – 7 described the types of allegations then propagated in the public domain as follows:

“•   A number of articles referred to multiple victims coming forward. One article contained a reference to the complainant noting “she knew he was a ‘dirty old man’ but had been pressured to stay quiet”.

•   Triggering events which precipitated further reporting included reference to civil action being brought by a complainant in March 2011. A further article in March 2011 noted “Daughter of Hey Dad! star rejects sex abuse claims”.

•   Reporting of the competition between the rival television stations for news stories relating to the allegations in itself became the focus of reporting at this time; at one time reporting related to the nomination of the A Current Affair program for a ‘Logie’, a television industry award, relating to media reporting of the allegations.

•   A media posting by commentator Mr Derryn Hinch notes: “I had several reactions...sadness that yet another vulnerable little girl had been treated so badly...frustration that for a number of reasons, especially our defamation laws, the name of the man who did this is still being protected...what hell was that little girl going through...where were the adults to stop it or listen...the child must be disturbed...”

•   Media reports of ratings surveys noted the program A Current Affair as receiving a “ratings jackpot”.

•   The pattern of continuing reporting included articles related to the complainant SM such as “TV robbed me of my Childhood” and articles reporting on the continuing investigation including: “100 witnesses more alleged victims, but Hey Dad star not pursued” The text of this article included the following: “...Sunday Telegraph has learned the number of police witnesses has blown out to “just” under 100 people, many of whom have corroborated allegations made by two former cast members... police are reinvestigating a number of similar complaints made to police about Mr Hughes during the 1980’s and 1990’s. Others included “Hey Dad star still to be questioned; “Sex case against Hey Dad star Robert Hughes widens as alleged victims rise to seven”; “Hey Dad Star still to be questioned”.

•   An article was published in the Woman’s Day magazine (Jan 2012) concerning the complainant headed: “Hey dad [SM] my bittersweet baby joy”, with an attribution to the complainant SM, “Main life [sic] now is to protect others...”

•   March 2011 report: “Hey Dad star to launch civil action”; “Ms [SM] told [A Current Affair she will not wait for New South Wales Police to finish investigations into the allegations before launching a civil action”. This reporting triggered further media interest including further articles noting: “Hey Dad! star to sue network”.

•   In March 2011 media reporting included footage and photographs of media confronting the accused in a car in Singapore.

•   14 March 2011 media reporting included an A Current Affair – “Special Sunday Report” on an earthquake in Japan which contained an additional report which was described as a “one year update” on the Hey Dad allegations. That report referred to a report to be screened on another television station which was said to contain an interview with the tendency witness [AA].

•   An article dated 14 March 2011 in the magazine New Idea was headed “Hey Dad! Scandal one year on – Please give us justice”. Further reporting at this time referred to concerns about the delay in investigation.

•   In December 2011, in an interview with the commentator Mr Derryn Hinch during the television program 7.30 Report, reference was made to Mr Hinch’s “campaign” to reveal child sex offenders and his history of breaching court orders in naming alleged offenders. Reference was made to a letter received from the complainant SM and allegations of molestation. Reference was made to the ability to use an ‘app’ to identify child sex offenders adding “it’s common sense”.

•   On 28 February 2012, a further A Current Affair program announced: “Hey Dad!” Scandal continues” adding: “It was one of the biggest scandals in Australian television history – two years since we exposed the Hey Dad! sex scandal that shocked the nation, more confessions are about to be heard from behind the scenes of the 80’s family comedy”.

•   Also in February 2012, a report “Fresh abuse claim against former Hey Dad! star Robert Hughes” referred to an allegation that the accused groomed a teenage fan during an eight month relationship.

•   An article in March 2012 noted: “Police slam parody of Hey Dad child abuse allegations...” as “...impacting upon the trauma of victims”.”

18. Zahra DCJ also outlined the nature of the reporting when the applicant was confronted in Singapore and when he was later arrested in London. Comments attributed to police investigators were then published in The Sydney Morning Herald. Mr Derryn Hinch also commented on his website on SM’s bravery in coming forward with her allegations. His Honour observed, at p 8, that:

“The extensive media reporting led to commentators, including lawyers’ associations, questioning whether the accused would obtain a fair trial as the reporting was said to amount to “trial by media”. This issue in itself, which was extensively commented upon, had the effect of propagating the publication of allegations of sexual misconduct by the accused.”

19. His Honour went on to outline the types of reporting in the media following the London extradition proceedings, the Local Court appearance in July 2012 and later in the District Court. He then dealt with the September 2013 program “Predators under Protection” presented by Mr Derryn Hinch, which was broadcast on 8 September, when SM was interviewed and on 15 September, when viewers were invited to vote for a petition advocating a “Megan’s Law” in Australia. That referred to legislation enacted in a number of States in America, where the location of convicted sex offenders is published and signs are placed outside their homes, notifying the public that a sex offender resides there. Publicity for that program included photographs of SM sitting on the applicant’s lap. Published ratings for the program indicated that it had attracted 1.2 million viewers.

20. Zahra DCJ then turned to consider what had been published on social media, extracts from Facebook, Twitter and YouTube having been tendered. His Honour observed that the entries tended to follow the same pattern as reporting in other media, with increased traffic coinciding with mainstream media reporting. His Honour observed, at p 11, that:

“A volume containing a schedule of extracts from social media including Facebook; Twitter and You Tube was tendered on the application. The entries tend to follow the same pattern as reporting in other mediums. At times of triggering events, the internet traffic tends to increase. In most instances it is difficult to determine the degree of access by the public to the particular sites. Little information is provided as to the numbers of persons exposed to the material. Some information is provided on a number of sites which note the number of “Likes”. This however does not necessarily indicate the number of persons who might have been exposed to the sites.

The material contained on social media sites is not constrained and contributors are largely anonymous. The material refers to the accused in a derogatory way and opinions are expressed about the alleged conduct of the accused. Much of the material vilifies the accused. By way of example, in July 2013 at the time of the reporting of the committal for trial of the accused, Facebook entries attached to the Channel 9 News site included comments such as the following: “Lock the pedo up”; “Innocent men don’t hide out in Asia”; “Once a pedo always a pedo”; “Lock him up so he can’t ruin any more lives”; “Hang the pedo”- The notation on the Channel 9 website indicated “228,376 likes” and “35,006 talking about this”.

Additionally, the social media site of the complainant SM tends to act as a running commentary of her views of the investigations undertaken by police. The information is disseminated with quite some frequency. A number of postings by the complainant SM at the time of arrest and charging acknowledge the investigation carried out by police.

The dissemination of material and commentary through social media continued throughout and up until the trial date in this court.”

21. His Honour also noted, at p 12, that there had been some 700,000 - 800,000 “views” to sites connected to the “Mr Doodleberger” videos, which on appeal were submitted to have been the worst of the applicant’s vilification on social media, together with the “Hitler Bunker” video, which had been published on YouTube.

22. The Mr Doodleberger videos were dubbed extracts from the Hey Dad..! program, which contained images of the accused and other cast members, with the original dialogue replaced with offensive language, describing the accused as a paedophile. He was also then referred to in other demeaning and derogatory ways, intended to portray him as a sexual predator. The Hitler bunker video was a scene from a German film set in Hitler’s bunker in which English subtitles referred to the applicant in derogatory terms.

23. We were taken to that material on appeal. The applicant’s counsel submitted that, at the time of the appeal hearing, it was still accessible on social media. Whether it was created before, or after the applicant was charged in 2012, is not apparent.

24. During the course of the trial, attention was also drawn to inaccurate and prejudicial reports published in mainstream media, which had also been taken up on social media. On 21 March 2014, for example, an article published in The Daily Telegraph was marked MFI 103. The submission advanced by the applicant’s advocate on 21 March was:

“I can hand up the marked transcript pages just to ensure accuracy, your Honour. I also hand up ABC report from Lucy McNally on the second page. She also took up the same sort of reporting in suggesting walking around the set in his underwear. My submission is this, if the press can’t accurately report the evidence then the Court may have to be closed; it’s got to this stage. This is about the fourth or fifth time; it truncates the proceedings, it takes up undue time it causes, this accused is about to be cross-examined, undue stress and anxiety to him and his legal representatives. I’m sure the Crown would be concerned about any further prejudice to the trial. This is a very serious situation.”

25. His Honour observed:

“It is important for those members of the media who are present that the reporting be accurate. I have given the jury a number of directions that they should not access the media and to rely only on the evidence but bad reporting like this makes their job exceptionally much more difficult and it may in fact prejudice the trial. I can’t do anything more, Mr Walsh, than indicate a degree of frustration that the Court’s time is again occupied by dealing with matters of this kind which can be clearly overcome by ensuring that reporting is accurate. I can only indicate that at this stage nothing has been done that requires me to make any order at this stage, Mr Walsh, but I’m becoming increasingly concerned that the reporting is inaccurate.”

26. Orders were later made, directed to particular media organisations, for example in relation to an ABC Media Watch program aired on 29 March 2010.

27. During the trial, there was no application for takedown orders in relation to various prejudicial material, but various concerns were raised with Zahra DCJ from time to time as to the ongoing coverage of the trial, both by the Crown and the applicant. On 10 March 2014, for example, an order under the Court Suppression and Non-Publication Orders Act2010 (NSW) was made in relation to what had been published on the website mamamia.com.au.

28. As a result, during the course of the hearing, Zahra DCJ also gave various directions to the jury as to the need to decide the case on the basis of the evidence, not what was said in media reports.

The Conviction Appeal

Ground 1:   His Honour erred in refusing an application for a voir dire to determine issues relating to a permanent stay and separate trials of the counts against the applicant.

Ground 2:   His Honour erred in refusing to permanently stay the indictment.

Ground 6:   His Honour’s directions concerning the risks of contamination were inadequate.

Ground 12:   The trial miscarried as a consequence of his Honour’s refusal of the application for a permanent stay of proceedings.

29. All of these grounds must be rejected.

The relevant procedural history

30. The applicant was arraigned before Zahra DCJ on 10 February 2014, when numerous pre-trial applications raised by notices of motion filed by the applicant in January 2014 were dealt with. The respondents to the motion which sought suppression orders in relation to the pre-trial applications, as well as other orders, were:

Director of Public Prosecutions (First Respondent)

Twenty Three claimed complainants and tendency witnesses (Second Respondent)

Fairfax Digital Australia and New Zealand Pty Ltd (Third Respondent)

Fairfax Media Publications Pty Ltd (Fourth Respondent)

News Digital Media Pty Ltd (Fifth Respondent)

Nationwide News Pty Ltd (Sixth Respondent)

Australian Broadcasting Corporation (Seventh Respondent)

Yahoo!7 Pty Ltd (Eighth Respondent)

Seven Network (Operations) Ltd (Ninth Respondent)

Ninemsn Pty Ltd (Tenth Respondent)

Derryn Hinch (Eleventh Respondent)

31. The motions also sought orders as to:

“i.   A permanent stay of the indictment;

ii.    A separate trial in relation to each complainant;

iii.   A ruling on the admissibility of tendency and coincidence evidence;

iv.   A voir dire be conducted as to the stay application and the admissibility of the tendency and coincidence evidence.”

32. On 5 February 2014, Zahra DCJ had made interim orders in relation to the hearing of the pre-trial applications, which prevented publication of the applicant’s identity and the motions. They were vacated at the pre-trial hearing on 10 February.

33. On 11 February, Zahra DCJ made a non-publication order in relation to the complainants and any material that might identify them (T 51.20-24). This order was later vacated, his Honour taking the view that the provisions of s 578A of the Crimes Act were adequate, the section making it an offence to publish any matter which identified the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant (T 58.32-37). There are also similar provisions contained in the Children (Criminal Proceedings) Act1987 (NSW).

34. There are exceptions provided for in s 578A(4), including in relation to publications authorised by the presiding Judge or Justice and those made with the consent of a complainant of or over the age of 14 years at the time of publication. On 8 April 2014, a non-publication order was made in relation to the identity of various tendency witnesses. On 9 April 2014, Zahra DCJ revoked that order in relation to a tendency witness AA, on her application.

35. The applicant’s pre-trial applications were heard in February 2014, the parties advancing both written and oral submissions. On 11 February, Mr Sibtain, appearing for the media respondents, referred to discussions with the applicant’s advocate about steps which might be taken by agreement to take down particular publications. That matter was then deferred and, finally, no take down order was pressed at that stage.

The applicant’s case on the stay

36. The case advanced for the applicant at the pre-trial hearing was that the nature of the extraordinary level of adverse publicity earlier explained, which was submitted to have been directed to the merits of what was in issue at the trial, namely, the applicant’s guilt of the charges he was defending, was such that he could not receive a fair trial. Prospective jurors had necessarily been exposed to it, with the result, it was argued, that they were likely to have prejudged the prosecution case, in a way that was adverse to him. In these circumstances, it was submitted, justice required that the proceedings be permanently stayed.

37. The media reporting which had extended over some four years was submitted to have moved well beyond objective reporting, to a portrayal of the applicant as having preyed on vulnerable young actors, with the evidence against him being represented to be so overwhelming, that he must be guilty. The circumstances were submitted to be such that no jury, properly instructed, could go about their task in an impartial way, the applicant having been portrayed as a vile, despicable human being, who had preyed upon the young and vulnerable and was guilty of the allegations made against him. Complainants had been portrayed in a sympathetic way and a deliberate campaign to obtain interviews with witnesses and complainants, and to publish the evidence it was expected that they would give, had been pursued.

38. The applicant also argued that there had been no proper motive for the “Predators under Protection” program, broadcast after his extradition, while he was awaiting trial. Directions to the jury could not undo the damage done to the impartiality of jurors who had seen that program, which it was argued had done him great prejudice, given that actual and implied assertions of guilt had been made.

39. A report led from Professor Thomson, a psychologist, was relied on to support the application. He had studied the capacity of jurors exposed to pre-trial publicity to reach a verdict solely on the evidence and the operation of “confirmatory bias”, which was a tendency to seek out information based on established belief and to overlook material inconsistent with such belief.

40. It was argued that, while there was a public interest in open discussion of sexual abuse of children in the community, the prejudice which had flowed to the applicant from what had occurred could not be cured by directions given at a trial, particularly given the ongoing access to that material available to jurors through use of the internet.

41. In the result, the circumstances were submitted to fall into that type of case discussed in R v Glennon [1992] HCA 16; 173 CLR 592 at 623-24, where “extreme” or “singular” circumstances had arisen, which justified a permanent stay, given the abiding effect of the pre-trial publicity and the inability of a trial judge, by thorough and appropriate directions, to dispel that effect.

42. The Crown opposed the application, contending that the case did not fall into that exceptional class of cases, notwithstanding the nature of the publications about the applicant. It contended that the applicant could receive a fair trial before a jury, properly instructed.

The applicant’s application to cross-examine witnesses on contamination

43. Each of the complainants had made complaints about the alleged offending, while they were still children. Those complainants had been dealt with in various ways, but none had resulted in charges being laid against the applicant. Each complainant pursued their allegations as adults, after the media interest in the applicant had arisen in 2010. After he was charged, the applicant was served with statements made by the complainants and other witnesses the Crown proposed to call at the trial. There was no committal hearing and the applicant thus sought the opportunity to cross-examine the complainants and other witnesses, prior to the trial. That application was opposed.

44. The application to cross-examine was pressed on the basis of a 120 page document (Exhibit 13), which identified the questions which the applicant sought to ask, prior to trial, in order to explore the possibility of contamination and/or concoction of their evidence, having regard to communications between complainants and witnesses and exposure to others’ complaints, through access to publicity.

45. On 12 February 2014, Zahra DCJ drew to attention the difference between calling a witness, where there was a real possibility of concoction, as opposed to a possibility because there may have been an opportunity to communicate. The applicant then tendered Exhibit 19, a schedule of alleged contamination and Exhibit 20, an amended schedule of witnesses sought to be cross-examined and questioned, which comprised 56 pages.

46. The Crown maintained its opposition to the application, given the history of complaints, prior to the complainants having come forward as adults in 2010.

47. The applicant’s case before Zahra DCJ was that his Honour was not being called on to assess the credibility of those sought to be examined, based on contamination, fabrication and motive, such as to earn money, but rather to determine whether there was a real chance of contamination having occurred. His Honour considered that this argument required some precision, given that while it appeared that complainants had come forward relatively soon after the A Current Affair programs, which had put particular information into the public domain, they had earlier made particular complaints. The applicant then sought the opportunity to consider his position further.

48. On 13 February, the applicant’s advocate conceded that his application to cross-examine all of those identified was “something like a wish list”, but submitted that the opportunity to examine AK, for example, was required in order to examine what she had said in her police statement in 1986/87 and differences in her later statement. His Honour raised the difficulty that examination of such a witness as to the impact which access to information which had come into the public domain had had on her recollection, could only establish that it was possible that contamination had resulted, even accepting that possibility, at its highest.

49. The hearing that day concluded with Zahra DCJ indicating his preliminary view to the parties, that he could see no utility in permitting the cross-examination sought on the voir dire. He indicated that he would allow Mr Walsh, the applicant’s advocate, to address him further the following day. The next day Mr Walsh advanced nothing more, but relied on his written submissions.

The 14 February judgments

50. On 14 February 2014, Zahra DCJ delivered a number of judgments, one refusing the permanent stay application and another dealing with the admissibility of the tendency evidence, the separate trial application and the application that the applicant be permitted to cross-examine the complainants and proposed witnesses about contamination and concoction of their evidence.

Reasons for refusing the stay

51. In his February 2014 stay judgment, his Honour concluded that the media material relied on demonstrated significant prejudice to the applicant, given its volume and content (at 18), and that its dissemination through social media was likely to engender significant ill will towards him and sympathy towards the complainants (at 19). He also considered that the reporting of SM’s complaints had moved well beyond objective reporting, as had use of comments by investigating police officers.

52. The frequency of the reports, his Honour found, over the course of some four years, had also reinforced impressions of the applicant’s guilt, the reporting prior to his charge having involved unrestrained commentary of a most prejudicial kind, which was in many instances irresponsible (at 19). His Honour considered that the “Predators under Protection” programs arguably contained elements of contempt. As to this, his Honour observed:

“The program, which refers to the upcoming trial of the accused, contains undertones of vigilantism in the commentary; contains depictions of law enforcement officers disclosing the identity of child sex offenders and depicts the complainant SM in a campaign to disclose the whereabouts of child sex offenders.”

53. His Honour concluded that it was highly likely that a large proportion of potential jurors in the State had been exposed to the pre-trial publicity, the predominant driver of which was commercial interest, without due “regard for the interests of the accused and the community in a fair trial” (at 20). His Honour then observed:

“It is however not part of my function to control the dissemination of material through the various media forms; to discern the motives of those behind the prejudicial reporting or to sanction or send a message to the media by staying the proceedings. The decision to stay proceedings must be based upon the proper application of principle.”

54. This observation was argued on appeal to have revealed the error into which his Honour fell, in refusing to grant the permanent stay sought.

55. His Honour concluded at pp 20 – 21:

“I am of the view that with appropriate directions, despite the sustained and prejudicial nature of the publicity here, a fair trial can be ensured. In forming that view I have taken into account the particular qualities of the publicity here which may mean that potential jurors exposed to that publicity may have engaged in prejudgment. I am of the view ultimately that careful directions will be effective in focussing juror’s minds on the necessity that, as judges, they must base their decision making solely on the evidence led in the trial. As I have indicated, the touchstone is the need to ensure a fair trial and whilst regard is to be had in the balancing process to the community’s expectation that persons charged with criminal offences are brought to trial, the community expects a trial of the accused to be fair.

There are a number of steps that can be undertaken which will operate to minimise the risk of prejudice to the accused. Prior to empanelling, members of the jury panel would need to be directed to seek to be excused if the effect of any pre-trial publicity is such that they cannot bring an impartial mind to bear on the issues to be determined in the trial.

Careful directions need to be given to the jury during the trial and in the summing up. The jury need to be reminded of the qualities that they must bring into the jury room in their role as judges in this trial and to confine their consideration to the evidence led in the trial and to ignore any publicity they may have been exposed to.

I am not of the view that considering the matters raised and their cumulative effect that this is an exceptional case warranting intervention by the grant of a stay of proceedings.”

Reasons for refusing the application to cross-examine on contamination

56. In his 14 February tendency judgment, Zahra DCJ dealt with the possibility of contamination and concoction in the context of the relevant provisions of the Evidence Act 1995 (NSW). His Honour outlined the evidence to be called from the complainants and the tendency witnesses from pp 9 to 37 of his judgment, before turning to evidence touching on communications between two of the complainants, AK and SM; the evidence of awareness of complaints on the part of tendency witnesses LJ, CS and VR arising from communications between them and from media reporting; and other evidence of contamination/concoction arising from media reporting, particularly the Woman’s Day article and the two A Current Affair interviews. His Honour also outlined the chronology of complaints made prior to the media reporting in March 2010.

57. Having reviewed that evidence, Zahra DCJ concluded that the media reporting was the catalyst for a number of complainants having come forward, but considered that “at its highest the evidence does no more than establish a merely speculative chance of contamination, rather than a ‘real possibility’”. His Honour concluded at p 49:

“It is important to consider the nature and content of the reporting and what was in the public domain at the time the particular complainants came forward and made statements to police. In my view, the material in the public domain at the relevant time to which I have referred was limited. Primarily, the material disseminated related to the complainants SM and JP, and was limited in its content and in parts lacked specificity. In my view, in assessing the potential for contamination it is significant that the other complainants had made complaint well before the media publicity. This is clearly apparent when one considers the history of complaint, which I have referred to in detail, and is manifest in the chronology produced here. There are some elements of the evidence of the other complainants, such as inappropriate touching and exposure of genitals, which are common to the conduct described by SM and reported in the media in the way I have extracted here. The conduct described by the other complainants, however, covers a wide range of conduct and a wide range of circumstances in which the conduct occurred, which a number of them described in detail when they complained of the accused’s conduct well before the media publicity.

The fact that a complainant or tendency witness has read or heard of publicity concerning allegations made against the accused does not of itself give rise to the risk of contamination. I have considered the potential for contamination in relation to each complainant and tendency witness separately.

Even if one presumes that each of the complainants was exposed to all the information concerning the particular sexual conduct of the accused in media reporting, to which I have referred, the possibility of contamination or concoction is no more than speculative. In my view it does not give rise to a real risk of contamination.”

58. His Honour also considered the possibility of earlier contamination, through direct and indirect contact between a number of persons in 1986-87, when there were rumours about the applicant at a school and an investigation by police and a report to DOCS. His Honour considered that the possibility of contamination at that time having occurred was at best speculative, and that there was no real possibility of either contamination or concoction for which complainants other than SM and tendency witnesses had any motive, they all having made statements to police independently. He also considered that it was speculation to consider that complainants were emboldened by media publicity to give false accounts (at pp 52 – 53).

59. His Honour considered the payments made to SM to be relevant, but concluded that they also raised no more than a possibility of concoction, given her prior complaints. His Honour concluded, at p 53, that:

“In my view, despite the vast volume of media reporting, the reporting which referred to the nature of sexual conduct engaged in by the accused is limited and does not give rise to a risk of contamination of the evidence at trial.

The nature of the allegations made by the complainants are different to the accounts given in the media reporting, though there is some commonality of allegations of the accused exposing his genitals and engaging in touching. The fact that there is some commonality, in my view, is insufficient to amount to a reasonable possibility of concoction or contamination.”

60. On appeal, there was no suggestion that his Honour’s findings involved any factual error. It was the conclusions which were reached on those facts, in relation to the application to cross-examine the complainants and witnesses, which were attacked as erroneous.

Zahra DCJ did not fall into error on the stay

61. There were no appeals against either judgment brought under s 5F of the Criminal Appeal Act 1912 (NSW). In the result, on this appeal what arises for consideration is not only whether, on the material before his Honour at the pre-trial stage of the proceedings when the applicant’s applications were refused, there was error, but also whether there is error in light of what subsequently occurred at trial.

62. What is pursued on appeal must be approached in the way discussed in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [19], that is, the complaints advanced cannot be approached purely prospectively, as Zahra DCJ had to consider what fell to him to decide. The issues lying between the parties on appeal must be resolved with the assistance provided by what actually transpired at the trial, including the steps taken to ensure that it was a fair trial, and their results.

63. For the reasons which his Honour explained, he concluded that despite the nature and extent of pre-trial publicity established on the evidence, there was not a serious risk that it would deprive the accused of a fair trial. What unfolded at the trial bore out that his Honour had a proper basis for that conclusion.

64. As discussed in Dupas, at [26], it has been long settled that:

“.. the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza [See [2007] QB 659 at 685-686]:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."”

65. In R v Burrell [2004] NSWCCA 185, it was suggested by the then Chief Justice, at [39], that:

“The accessibility of information on the internet has been enhanced by contemporary search engines to such a degree that special measures are now called for. In addition to strong warnings to the jury, it may be advisable for the Crown to conduct searches in advance of a trial and request Australian based websites to remove references to an accused for the period of a trial.”

66. Given how the internet and social media have developed since 2004 and how they now operate, as was explored during the pre-trial applications, when representatives of the media appeared, the efficacy of such steps is entirely questionable. That explains why few take down orders were pursued by the applicant, even during the course of the trial, which continued to attract considerable ongoing attention by both mainstream and social media.

67. That does not, however, mean that an accused who now becomes the subject of intense community interest, as the applicant did, cannot receive a fair trial. Nor did the evidence establish that the applicant’s trial was not a fair one.

68. All of us, accused, victims, judges, jurors and other members of our community now live in a world of instant, largely unregulated communication of opinions disseminated by publication on social media, where they can endlessly be accessed and responded to by others. Such opinions range from the mildest of those depicted on the material in evidence (to the effect that if convicted the applicant should be appropriately sentenced), to the most extreme. In this case, that included satirical videos in the poorest of taste accessible on YouTube and even worse, commentary that not only denigrated the applicant in the way Zahra DCJ discussed, but which contained commentary which his Honour described as amounting to vigilantism.

69. The reality remains, however, that our civil society and the justice system which it has devised, is the means by which we help ensure that such views remain confined to social media, where those who hold such views are free to express them, rather than being acted on.

70. For centuries now, courts have had confidence that juries will decide the cases which they are called on to judge, on the basis of the evidence and that they will adhere to the directions which they are given by the presiding trial judges. Experience, including that revealed by this trial, demonstrates that despite fast moving technological advances which have provided people with enhanced means of communication, jurors still approach their tasks conscientiously.

71. There is good reason to continue in the expectation that, notwithstanding these technological developments and what they permit, juries will continue deciding cases on the evidence, in light of the submissions advanced at the trial by those who represent the parties to the proceedings and the directions of law which they are given by trial judges. This case demonstrates that jurors still accept that their decisions should not be made on the basis of what is published elsewhere, including on social media, about what falls to them to decide.

72. Zahra DCJ having identified the difficulties of ensuring that the applicant received a fair trial, took a number of appropriate steps, which ensured that the trial was a fair one. That began with what his Honour said, even before the jury was selected, after the applicant and witnesses were identified to potential jurors. His Honour then said:

“Ladies and gentlemen there has been substantial publicity concerning the allegations made against the accused which are the foundation of the charges that have been read from the indictment. Many if not most of you may have been exposed to some of that publicity. Many would have been exposed to a substantial amount of publicity. That publicity has occurred in print, both newspapers and magazine[s] and in electronic media. Substantial publicity occurred in 2010 at the time of the arrest of the accused and the period following. There has also been substantial reporting on Internet sites. Those of you who will be selected as the jury, will swear an oath or take an affirmation, that is, that you will solemnly and sincerely declare and affirm that you will give a true verdict according to the evidence. That you listen to the evidence and consider closely the evidence in the trial and to give a true verdict according to the evidence. Your role as a juror if you are selected in this trial will be that of a judge. You will by taking that oath or making an affirmation become a judge in this trial, a judge of the facts. You as a jury of 12 alone have the role of returning the verdicts in this trial. You must have some understanding of the qualities that you must bring in your role as a judge. As a judge you will decide the issues based only on the evidence led in this trial, not on what someone else might have said elsewhere, for example in a newspaper or other media report. As a judge you must act impartially.”

73. After the jury was empaneled, Zahra DCJ addressed the jurors as to the onus of proof falling on the Crown; the presumption of innocence; their role as judges of the facts, based on the evidence; being impartial in the proceedings; and applying the law as directed by his Honour, to the facts as they found them to be. They were also given written directions that their verdict must be based solely on the evidence and that they had to exclude from their minds any publicity. His Honour later revisited what he had said before the empanelment, as to the significant pre-trial publicity which juries might have seen or read, as the trial continued. That topic was also addressed in the applicant’s submissions and was again taken up in his Honour’s summing-up.

74. This was undoubtedly a jury which attended to those directions. It posed a number of questions during the trial, including pertinently, during the summing-up, in relation to publicity. By the jury note marked MFI 121 the jury asked:

“Can his honor [sic] please help us to better understand his Direction specifically regarding “that we ensure we go into a detailed and specific assessment of the “Defence counsel” “suggestion” in his closing address that the “similarity and consistency” in all the Complainents [sic] and Tendency witnesses evidence regarding the behaviour of the accused, somehow shows “contamination” and “collusion” from Awareness of Details Published in the Media Reports of Channel 9, Channel 7 and other media???

In light of the Directions His Honor [sic] has given us repeatedly to ignore all awareness of Media Report Details as “not evidence” as “not facts to be judged by us in this trial” How can we then apply this suggestion of scrutinizing “evidence” against Media Reports??? Many of us have also never seen any of the said “Media Reports” or even “Hey Dad” show ever.

If e.g. we were to apply such intense scrutiny to evidence of Defence Witnesses who said they have read all Witnesses Statements, All evidence of all witnesses, wouldn’t that mean we would also have to read all the material as well to see if there are any match ups or “contamination and collusion” that it enabled?

His Honour has repeatedly given us “Directions” to understand “suggestions of questions of Counsel” are “not evidence” “the answer of the witness is evidence.”

So how do we go about apparently to judge for contamination and collusion based on evidence, “Media” or “Police and Witness Statements” we are not given as evidence?”

75. This question was answered by his Honour in summing-up, by reference to the evidence and the parties’ submissions in terms to which it will be necessary to return below.

76. The jury retired at 12 pm on 3 April 2014, deliberated all day on 4 April and until 2:30 pm on 7 April. A note was then sent to the effect that:

“We have carefully and dutifully considered the evidence of each indictment. As we stand we are unanimous on nine of the 11 indictments. After a day and a half of debate and consideration we cannot reach a unanimous decision yet on two indictments despite our best efforts. We ask for your direction and instruction on how to proceed.”

77. Verdicts were then entered in relation to counts 1-9 and the jury directed to resume their deliberations. A further note was sent on 8 April at 11:48 am:

“We have reached a verdict on count 11 on the indictment. However we are certain that we will be unable to reach a verdict on count 10 after further deliberation with no progress.”

78. A verdict was then entered in relation to count 11. The foreman was examined by his Honour and the jury was then discharged.

79. That sequence of events demonstrates, unarguably, that this jury approached its task in the way discussed in Dupas. The course which the trial took, including as it did the various directions given by Zahra DCJ over the course of the trial and finally in summing-up; the question the jury asked about publicity and how it was answered; the fact that a verdict was first reached in relation to counts 1 to 9, before the jury reached a verdict in relation to count 11, after further deliberation which related to SM, when considered with the fact that the jury could not reach a unanimous verdict in relation to count 10, simply does not leave open to doubt that this jury decided the case on the evidence, as it had been directed to do.

80. That further time was required before a conclusion was reached in relation to the charge concerning SM, indicates that the jury reached its verdict in relation to her allegations on the evidence relevant to the charge which concerned her and, notwithstanding the evidence as to her feelings towards the applicant, how she had pursued them through social media and the interviews for which she had received considerable payment in 2010.

81. All of this does not leave open the conclusion that there was a miscarriage of justice, because the applicant was refused a permanent stay.

82. To the contrary, the evidence establishes that the applicant did receive a fair trial, notwithstanding the publicity and the refusal of the application to cross-examine the complainants and the tendency witnesses on the voir dire, as explained below.

83. To come to a contrary conclusion in the face of all this evidence would require undue attention to be paid to the views expressed in mainstream and social media and insufficient attention to what actually transpired in this trial. To uphold the appeal because a permanent stay was refused, despite the prejudicial commentary, before and after the applicant was charged, would be to create a mechanism by which those of ill will could undermine the proper operation of our system of justice. Such a mechanism would also be readily available to be exploited by an accused and those who support him or her, who are intent on ensuring that charges brought cannot go to trial.

84. The evidence in this case well demonstrates that the jury system is robust and capable of ensuring that a person accused of serious offences can receive a fair trial, despite prejudicial and ill intended comments widely and irresponsibly published on mainstream and social media.

85. That does not mean that those who commit a contempt of court in publishing such material ought not to be appropriately dealt with for that conduct, be they representatives of mainstream media, or those who publish contemptuous material on social media.

86. Neither the parties nor Zahra DCJ considered it necessary, however, for any particular person or organisation to be dealt with for contempt. Nor was that course urged by the parties on appeal. It is not appropriate for this Court now to deal with any apparent contempt in the trial proceedings. That must remain a matter for the judge presiding over the trial to determine, after hearing from the parties.

Zahra DCJ did not fall into error on the application to cross-examine as to contamination and concoction

87. There was no error in his Honour’s refusal of the application to cross-examine the complainants and the tendency witnesses about the possibility of concoction and/or contamination.

88. Again, there was no suggestion that his Honour had made any factual error in his judgment. The attack was on his Honour’s conclusions, having regard to the authorities which bound him.

89. The argument advanced on appeal rested on Hall J’s approach in BJS v R [2011] NSWCCA 239 where, in a s 5F appeal witnesses had been cross-examined in relation to contamination and concoction. There, the issue was pursued by way of two grounds of appeal. First, that it had been wrongly found that there was no relevant evidence of contamination, concoction or fabrication in the cases of some witnesses. Secondly, that it had been wrongly found that there was not a real chance of contamination or concoction in the case of other witnesses. This was also a case where a tendency notice had been served, but questions of contamination and concoction can, of course, arise in other circumstances in a criminal trial.

90. Hall J observed, at [203], that:

“When there is an issue raised as to whether complainants and other witnesses have been affected or influenced by media publicity or internet material such to have contaminated their evidence, the inquiry, in my opinion, involves the investigation of a number of issues. In general terms, these include the following:-

(1) The content of media releases or articles or internet material to which complainants and/or non-complainant witnesses have had access or to which they are likely to have had access.

(2) In particular in that respect, the extent and level of detail in the discussion of factual matters concerning the accused person and his/her alleged conduct or that of others.

(3) Whether the subject matter of published material related to matters that were central to proof of charges made against the accused.

(4) Whether the complainants and/or witnesses discussed such material amongst themselves.

(5) Whether there are signs of contamination having infiltrated or influenced the contents of the statements of complainants and/or witnesses.”

91. Here, as already explained, in concluding that the applicant’s application to cross-examine the complainants and the witnesses should be refused, Zahra DCJ accepted that it was reasonable to assume that all of them had had access to the adverse publicity which his Honour described. The extent of the communication between them and the nature of the allegations which they had advanced in the complaints they had made before the 2010 publicity, when compared to what was described about the applicant’s acts in that publicity, was also considered. There was no error in so approaching the application which his Honour had to determine.

92. The approach which his Honour took, proceeding on the basis that each complainant and witness had been exposed to this prejudicial publicity, taken at its highest, and comparing what was there revealed with what they had earlier complained of, involved no overemphasis of the importance of the fact that there had been prior complaints, as the applicant argued on appeal. To the contrary, in this case, the fact that such complaints had been made while the complainants were each children, years before they came forward to make complaints to police as adults, after the publicity which SM’s interviews generated in 2010, was of crucial relevance, given the questions of credibility and reliability thereby raised.

93. In BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532, the difficulty with pre-trial rulings as to admissibility sought on the issue of contamination, which require a trial judge to usurp the function of a jury, to whom such issues fall to be determined, was discussed at [66].

94. Jones v R [2014] NSWCCA 280 was another case where the trial judge had concluded that questions of concoction and contamination were relevant only to issues of credibility and reliability, which were jury questions, applying R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. At [88], Bellew J observed that Shamouil, as well as DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 and R v XY [2013] NSWCCA 121; 84 NSWLR 363, all supported the conclusion that, in a jury trial, it was not part of a judge’s function to assess and make his or her own findings as to the likely weight of evidence, or its likely acceptance or rejection by a jury. As to concoction and contamination, his Honour observed, at [90], that it was conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences, which are relevant to a determination of the probative value of the evidence by a judge, but that was not such a case.

95. Nor was this such a case, given the evidence of prior complaints.

96. In McIntosh v R [2015] NSWCCA 184, it was observed, at [46], that the concept of “concoction” suggests a deliberate fabrication of the evidence and that the term “contamination” may involve an unconscious process of suggestion being adopted. Thus, it was observed by Basten JA, at [47], that:

“Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.”

97. However, his Honour further observed, at [49], that:

“If a possibility of concoction at a level sufficient to affect the capacity of the evidence to bear significant probative value were to be identified, it would probably have been necessary to carry out a reasonably searching cross-examination on the voir dire, before admissibility was ruled on.”

98. That was the opportunity sought and refused in this case, the conclusion being reached by Zahra DCJ that contestable questions of credibility and reliability resting on the possibility of contamination or concoction were a matter for the jury. In the circumstances, that conclusion was well open.

99. Publicity of the kind here, extensive and adverse as it was, occurred years after the initial complaints were made. That gave rise to no inherent implausibility in the complaints which the complainants made as adults or in the evidence of the witnesses as to what had occurred when the complainants were children. Nor did it give rise to an inference of either concoction or of contamination of those complaints, by the various complainants. The possibility of exposure to post complaint publicity giving rise to unconscious contamination of what was later reported to police was a matter for jury assessment of the witnesses.

Zahra DCJ did not fall into error in relation to the directions given as to concoction and contamination

100. Undoubtedly the applicant had to make difficult forensic decisions at the trial. Even if the trials had been separated as the applicant sought, difficult decisions would have had to have been made in relation to questions of potential contamination and concoction.

101. Apart from the complaint the subject of count 10, the challenges to the complainants’ evidence failed.

102. The applicant’s case at trial was that the allegations against him were a fabrication and that the complainants and the tendency witnesses were not accurate, honest and reliable witnesses. The prosecution case depended on word against word and, for reasons advanced by reference to the evidence as to each complaint, it was submitted that the prosecution witnesses could not be believed. In the case of SM, it was submitted that she had done her best to destroy the applicant and that she hated him, not because he had ever acted inappropriately towards her, but because she was motivated to make money.

103. As to contamination and concoction, the applicant submitted that:

330. His Honour noted that he had considered the large volume of material provided in relation to a past pattern of sentencing for the applicant’s offences and referred to recent decisions of this Court, as to how such material was to be used. He concluded at pp 15 – 16:

“The following are illustrative:

1 In R v EGC [2005] NSWCCA 392 the Court found there was no reliable material available for offences under s 66A and s 61E (1A) committed between 1986 and 1988 (The offender here faces sentence on four counts under s 61E (1A) between 1 December 1986 and 28 February 1987). The Court went on to apply the approach in R v Moon [2000] NSWCCA 534 at [70] (referred to below).

2 In PWB v R [2011] NSWCCA 84, the Court was concerned with offences of indecent assault of a child under 16 pursuant to s 61E (1) committed between 1987-88 and 1991. (Four of the counts here, between 1 March 1985 and 1 May 1986, are laid under that section). His Honour considered a number of sentencing decisions (extracted in schedule form attached to the judgment); reports of the Judicial Commission and sentencing statistics. Hulme J noted at [69] after considering sentencing decisions: "Although I have found a few cases of assistance, given the range of conduct and circumstances covered by the cases to which the Court was referred they provide no useful indication of general sentencing standards at the time of the applicant's offending". His Honour went on to note that whilst the material permitted a conclusion that a "lower sentencing regime" operated at the relevant time of the offending and that sentences were "more lenient than the present", he was unable to derive from the summary of cases "any sentencing pattern for offending of the nature of that committed by the applicant" [74]. His Honour then went on to apply the approach in Moon. A schedule containing a substantial number of comparative sentences is attached to the judgment.

3 In Magnuson, Button J extensively considered material from a number of sources including summaries of cases, cases referred to in decisions of the Court, the increase in sentences generally, statistics and other reports. His Honour found that a sentencing pattern "with regard to sexual offences against children in the late 1970's and 1980's can be established" [90]. His Honour, having referred to tables and summaries of cases and in particular to the database of the NSW Public Defender for appeals between 1983 and 1991, concluded: "...sentences, both as [to] head sentence and non-parole period, moved upward to some degree during that period. The second is that, at the beginning of the period, sentences, and especially non-parole periods, were lenient by the standards of today" [107]. His Honour concluded: "Although it cannot be discerned with exactitude, I am satisfied that such sentences were shorter at the time than they are now; both with regard to offences founded upon sexual intercourse, and also to offences of indecent assault and the like ".

4 In MPB v R [2013] NSWCCA 213, Basten JA, having considered the authorities, set out the approach to the fixing of sentences for an old offence. His Honour went on to say that in accordance with the approach indicated, "...it is neither necessary nor appropriate to have regard to the actual patterns or practices of sentencing which are now believed to have operated at the time of the offending, whether based on acceptable statistical evidence, cases or memory" (at [34]).

Consistent with the observations of Button J in Magnuson, I am satisfied that a pattern of sentences can be discerned both with regard to offences founded upon sexual intercourse and offences founded upon indecent assault. Although the pattern cannot be determined with exactitude, a pattern of significantly lesser sentences can be discerned. The material considered, however, is not capable of demonstrating with clarity sentencing patterns for the particular type of conduct of the kind represented by the offending here, within the wide ambit of the type of conduct caught by the sections. At their highest, a number of decisions to which I have been referred, and decisions set out in schedules to authorities, provide limited assistance to the extent that they might identify an appropriate range, but not the sentence to be imposed, taking into account the particular circumstances of the offending here in the individual counts.

333. His Honour also noted that he was obliged to bear in mind that the non-parole period imposed on the applicant represented the minimum period of imprisonment he was required to serve, having regard to all of the purposes of sentencing and that ultimately, the sentence imposed had to adequately reflect the criminality of the applicant’s offending.

334. His Honour also took into account the evidence led as to the applicant’s subjective circumstances, which came from a report of Dr Nielssen, a psychiatrist who had examined the applicant and considered that he had no symptoms of any mental illness, psychiatric disorder, or other illness or problematic history of alcohol consumption or drug abuse.

335. Zahra DCJ considered that it was relevant that the applicant’s offending conduct had persisted for over 20 years; that he still denied his guilt, which denied him leniency on sentencing; and that he had no remorse or insight into the consequences of his offending, which made it impossible for his prospects of rehabilitation to be meaningfully predicted.

336. His Honour also took into account that, on sentencing, the applicant was aged 65 and that Dr Neilssen considered his offending against prepubescent female children aged 7-9 to place him into an abnormal category, but that he also had a record of no offending for some 10 years and stable family relationships, leading to the assessment that the applicant presented a low risk of future offending. His Honour noted, however, that his absence of insight made it unlikely that he would take advantage of programs to address his offending behaviour.

337. His Honour found the applicant otherwise to have been of good character, but considered that to be of limited weight, given the nature, seriousness and length of his offending behaviour. He thus concluded that deterrence had to feature in the sentence imposed. His Honour also took into account that the applicant was liable to suffer harder conditions in custody, given the restrictive custody and reduced access to facilities and therapeutic programs which he faced, and his fear for his safety while serving his sentence,.

338. His Honour also outlined the evidence that the applicant’s partner had given, as to the extent of the publicity which the applicant had to deal with before his arrest and its consequences, which had left him virtually confined to his home, except when reporting to police. His Honour accepted that the result was that the applicant had and would continue to suffer social isolation, another factor to be taken into account on sentencing. He did not accept, however, that delay in prosecuting the applicant had caused him to suffer any detriment, other than during the time between the police becoming aware of SM’s allegations and the applicant being charged, which his Honour took into account but only, he said, in a limited way.

339. Zahra DCJ also referred to the victim impact statements he had received, which he took into account in accordance with s 3A(g) of the Crimes Sentencing Procedure Act and not s 21A(g). His Honour also considered questions of accumulation and totality and explained that the sentences he imposed on the applicant did not represent appropriate sentences for such offending if it had been committed today, or in the more recent past.

340. The applicant did not submit, on appeal, that his Honour fell into any error in relation to his understanding of the principles. The case advanced was rather that it was in assessing the objective seriousness of the various offences the jury found the applicant had committed, and his application of these principles to those offences, that his Honour fell into error.

His Honour did not err in in assessing the objective seriousness of the applicant’s offending

341. The applicant did not challenge Zahra DCJ’s characterisation of the offences committed against SH, counts 3 to 6.

342. He contended, however, that the sentences imposed upon him for counts 1 and 2 involving JP, reflected that his Honour had wrongly concluded that their objective criminality fell within the upper range of offending, involving as they did digital penetration for only a period of short duration, not associated with threats or acts of violence. The offences against AK were also submitted to have been wrongly categorised, not having been planned or orchestrated or prolonged, not having involved serious offending and having been committed opportunistically. Count 9, it was argued, was no more serious than counts 7 and 8.

343. The applicant’s case was that these offences all involved mid-range offending. The indicative sentences of 5 years for the offences involving JP and 2 years and 6 months for those involving AK, apart from count 9, for which the indicative sentence given was 2 years and 9 months, did not reflect, it was argued, either their respective or their relative seriousness.

344. The applicant also contended that count 11, involving an act of indecency towards SM which was characterised on appeal as “flashing”, was less serious, not having been accompanied by lewd talk, suggestion, masturbation or threat, although committed at an age when she was vulnerable. There had also been no planning. The sentence of 12 months, against a maximum penalty of 2 years suggested this offence was considered to be objectively serious. That, it was argued, reflected his Honour having been unduly influenced by evidence of uncharged acts against SM.

345. In his sentencing remarks, Zahra DCJ referred to authority which required the type of penetration involved in sexual intercourse offences to be but one of the factors taken into account in assessing its seriousness. Other relevant factors which he identified in JP’s case included age, in her case of 14 or 15, when the applicant was aged 36 or 37; the offending being the culmination of inappropriate contact which had commenced when she was about 11 or 12; the advantage taken of the applicant’s relationship with her parents and his presence in her home on both occasions; the fact that the offences had occurred when he had entered her bedroom, where she was asleep; the degree of force used in the second assault; and JP’s feeling of shock and fear.

346. In the case of the indecent assault offences, his Honour took into account the actual character of each of those assaults, including the degree of physical contact involved; the age of the victim; and the nature of the relationship between the applicant and the victim. Counts 3 to 6 involved SH, when she was aged between 6 and 8. His Honour concluded that the offences which involved the applicant forcing SH to masturbate him to the point of ejaculation and to rub semen over her vagina with his hand and his penis, to have been of an extremely high order, particular the offence committed when she was only around 7 years old. The applicant’s abuse of his position of trust was also taken into account, as was the degrading and shameful nature of this conduct, which had not been isolated, but had occurred on at least 5 occasions.

347. The other indecent assault offences, counts 7 to 9, involved AK when she was aged 9. They were found to have been a part of a predatory course of conduct committed while AK was in the applicant’s care. His Honour referred to the offences involving pinning her between his legs while his penis was exposed, when she had to thrash and struggle to be released and the offence committed while applying medication to her ears and AK feeling nervous, scared and upset. He also referred to her evidence that children do what adults tell you to do, especially at that age, especially when a child at someone else’s house.

348. The act of indecency involving SM when she was aged 12 or 13 also involved exposure of the applicant’s penis. His Honour found that it was not isolated, but part of a pattern of inappropriate conduct and occurred in circumstances where she was vulnerable.

349. His Honour indicated that he had not taken into account evidence of other sexual misconduct towards the complainants and the tendency witnesses, for which the applicant had not been convicted, as an aggravating factor. He also said that he had not imposed higher sentences on the applicant as a result of those uncharged acts. Rather, he took account of that evidence to deny the applicant leniency and to take into account the circumstances of the offences for which he was being sentenced as not involving isolated offending.

350. His Honour noted the opportunistic offending behaviour in which the applicant had engaged for over 20 years, which had not involved prolonged conduct, but persistent, calculated conduct, involving abuse of trust, exploitation of the complainants’ naivety and youth, being children over whom he had a position of authority as an adult, which had in many cases ensured their silence for many years. He concluded that the applicant’s offences were all objectively serious, some falling at the upper end of the range and those involving SH into a most serious category, with those involving AK also serious.

351. We consider that there was no error in his Honour’s factual findings or in his approach to the assessment of the nature and seriousness of the applicant’s various offending.

352. A sentencing judge must undertake such an assessment, in order to ensure that the gravity of each offence, viewed objectively, is reflected in the sentence imposed on the offender. Such an exercise requires consideration to be given to where in the range of conduct covered by the offence, the particular offending conduct falls, so that the sentence imposed does not exceed what is proportionate to the gravity of that crime (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15]). That was the exercise which his Honour properly undertook.

353. His Honour was also well aware of the distinction between not increasing a penalty based on aggravation and not granting an offender leniency on account of the fact that the events charged were not isolated incidents. Like the circumstances considered in Dousha v R [2008] NSWCCA 263 at [27], the result of this sentencing exercise was not consistent with the applicant having been sentenced for any uncharged conduct.

354. For the entirety applicant’s offending, he has been sentenced to serve a non-parole period of 6 years and a total term of 10 years and 9 months. Given the admitted seriousness of his offending against SH, when considered together with the objectively serious offending against JP, which we consider his Honour correctly characterised as objectively more serious than that committed against AK, as well as the offending against AK and the lesser offending against SM, the proposition that this aggregate sentence was the result of any error in his Honour’s conclusions as to the seriousness of the applicant’s individual or overall offending, cannot be accepted.

355. Minds could well differ, it must be accepted, as to the indicative sentence identified in respect of the offence involving SM, given that the maximum penalty for that offence was 2 years and the indicative sentence given was 1 year. But we do not accept that this offence involved merely an act of “flashing”, as it was characterised on appeal. It was more serious than that, given all of the evidence and the relevant matters which his Honour took into account in assessing the objective seriousness of this offence. That there was any error in the overall aggregate sentence imposed on the applicant was not established.

356. In arriving at an aggregate sentence, his Honour applied the principle of totality, and also considered questions of accumulation, noting that the offending involved several victims; that some offences were part of one unbroken episode; and that while concurrent sentences could be imposed, when discrete criminal acts were committed, either in relation to individual or multiple victims, there should be at least partial accumulation. His Honour thereby arrived at an aggregate sentence, including a non-parole period which he considered that the applicant ought serve, having regard to what the purposes of justice required in all of the circumstances.

357. As discussed in Mulato v R [2006] NSWCCA 282 at[37]:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.”

358. His Honour’s conclusions as to the appropriate aggregate sentence for the applicant’s overall offending, reflecting the objective seriousness of his individual offending, were unarguably open.

His Honour did not err in having insufficient regard to sentencing practices at the time of the offending

359. As discussed in R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [22]-[23], Zahra DCJ was obliged to sentence the applicant in accordance with the principle discussed in R v Shore (1992) 66 A Crim R 37 at 42, that an offender be sentenced in accordance with the range of sentences imposed at the time when the offence was committed, but that is often a difficult obligation to discharge.

360. The applicant received an aggregate sentence of 10 years and 9 months, with a non-parole period of 6 years, which was, in all of the circumstances of his offending, not a heavy sentence. Had his Honour not had regard to patterns of sentencing which applied at the time of the commission of his offences, a higher aggregate sentence would clearly have had to be imposed on the applicant, given the criminality involved in each of his offences as viewed against the maximum penalty prescribed for those offences and what considerations of totality and aggregation required in his circumstances.

361. Zahra DCJ expressly took into account the non-parole periods commonly fixed at the time of this offending at a third to one half of the total sentence, when considering special circumstances, in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act. The ratio fixed was a non-parole period of 55.81% of the head sentence.

362. The applicant contended that the ratio ought to have been less than 50% and that the total aggregate sentence ought to have been even lower than the 10 years 9 months imposed, had proper consideration been given to the earlier sentencing patterns. It was also argued that his Honour’s view, namely, that the patterns of lesser sentences demonstrated in the cases he had been referred to had to be considered with care, had inappropriately marginalised an important moderating feature of this sentencing exercise.

363. The particular case to which attention was drawn in written submissions on appeal was DCM v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep), where a 76 year old offender was sentenced for 16 counts of sexual offending involving 5 victims between November 1986 and April 1991, for which he was sentenced to 300 hours of community service and a good behaviour bond. That single case does not establish that the sentences imposed for the applicant’s offences were too high.

364. In oral submissions, it was argued that proper consideration had not been given to the many sentencing examples which had been provided to his Honour and that the aggregate sentence imposed had not properly reflected those earlier patterns, in which there had been a normal range of one third and one half of the sentence, as had been accepted in Magnuson v R [2013] NSWCCA 50.

359. In Magnuson, it was accepted, at [91], that the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now and, at [94], that examination of the length of sentences imposed upon those who were imprisoned in the 1970’s shows that they were short compared to those imposed for equivalent offences today. It was also accepted, at [109], that in Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540, Bell JA (as her Honour then was) at [33] - [44] provided details of a number of decisions of this Court between 1990 and 1998 with regard to the sexual assault of children which, considered as a whole, showed that sentences for such offences have moved upwards. From [117] developments over the past 25 years within the criminal justice system which had led to a lengthening of sentences for both sexual offences and offences generally were examined. In the result it was concluded that:

●   a pattern of sentencing for sexual offences against children in the latter half of the 1970s and the first half of the 1980s has been established (at [130]).

●   although it could not be discerned with exactitude, such sentences were shorter than now; both with regard to offences founded upon sexual intercourse, and also with regard to offences of indecent assault and the like (at [131]).

●   it was likely that the overall range of non-parole periods for offences that were prosecuted as rape before 1981 had increased, but that sentences for rape committed against children before 1981 were shorter than sentences imposed nowadays for sexual intercourse without consent with children founded on penile vaginal intercourse, whether as to head sentence or non-parole period [at [132]).

366. At [133], it was also noted however, that even when giving effect to such considerations “sentences imposed now must adequately reflect the criminality of any offender, whenever the offences were committed.”

367. In Magnuson, it was finally concluded that while sentences imposed for the offences committed against the various victims were not manifestly excessive, that the total non-parole period of the overarching sentence structure should be closer to 50% of the total head sentence than that imposed (at [145]). On resentence, while the head sentences were not reduced, there was a reduction in the ratio between the total non-parole period and the total head sentence, resulting in a total non-parole period of 56% of the total head sentence.

368. When that outcome is considered against his Honour’s approach in this sentencing exercise, where the ratio fixed was a similar percentage, it is not open to conclude that the result of his Honour’s approach was relevant error, or a manifestly excessive sentence.

His Honour did not err in his consideration of extra curial punishment, victim impact statements or conditions in custody

369. The applicant’s case was that Zahra DCJ had erred in his approach to extra curial punishment, which on the evidence ought to have been more clearly recognised as a significant penalty; that he had not approached the victim impact statements, particularly that of SM, with proper caution and had not adequately considered their reliability; and that he had not adequately considered how harsh the applicant’s conditions of custody were likely to be.

370. His Honour said that he took account of the extra curial punishment he discussed, by reference to the evidence of the applicant’s partner and that given by Dr Nielssen, as well as to Ryan v R [2001] HCA 21; 206 CLR 267. The complaint advanced on appeal raises a question of the weight given to that consideration. No error in his Honour’s approach or conclusion was thereby established.

371. His Honour also referred to R v Slack [2004] NSWCCA 128, where it was observed that the weight to be given to a victim impact statement is for the court to determine; that the impact of criminal behaviour on the victim or victims of such behaviour must be taken into account, by way of an objective assessment of the crime’s effect; and that substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

372. In this case, his Honour had not only received victim impact statements, but also the sworn evidence given by complainants at trial. He concluded that the statements should be considered for the limited purpose specified by s 3A(g), that is, to recognise the harm done to the victim of the crime and the community and not for that provided by s 21A(2)(g), namely, that the injury, emotional harm, loss or damage caused by the offence was substantial.

373. There was no error in that approach. Nor was his Honour’s approach to the harsh conditions in custody which it was anticipated that the applicant would have to endure erroneous.

374. This ground must be dismissed.

Ground 14:   His Honour’s sentencing exercise miscarried because it was not fully apparent to the court at the time of sentencing how harsh the applicant’s conditions of custody were likely to be.

375. Leave was sought at the hearing to add this ground. It may be contrasted with the other grounds of appeal against sentence because it is based on evidence that was not relied upon only if error were otherwise established, and this Court came to consider resentence.

376. Rather, it was submitted that the evidence of the deplorable mistreatment of the applicant whilst he has been in custody since he was sentenced is fresh evidence that may, exceptionally, be taken into account, without the need for establishment of error by the sentencing judge.

377. Read in support of the ground was an affidavit of the applicant of 27 August 2015, and an affidavit of the solicitor for the applicant of 28 August 2015.

378. Their contents may be summarised as follows. The applicant has lived in great fear since he was sentenced on 16 May 2014. He has informed his advocate that he lives with constant verbal and physical abuse. He has been spat on, showered with excrement and urine, and scalded with boiling water. For some time, the applicant had to “run a gauntlet” to reach the building in the gaol where legal and personal visits are conducted. The advocate has seen aspects of the appearance and demeanour of the applicant that support his contentions.

379. Through fear, the applicant and his wife have been very reluctant to make any complaint to the authorities, or to agree to the applicant being transferred to a different gaol.

380. The advocate believes that the reasonably recent publication of a book about the maximum security gaol in which the applicant is housed, and which refers to his incarceration there, has exacerbated the situation.

381. In short, it was submitted that fresh evidence has come into existence since the imposition of sentence that was (by definition) not available to the sentencing judge, and it is to do with a topic that was known to his Honour at the time of the imposition of sentence.

382. Referring to the long line of decisions in this Court that commenced with R v Smith (1987) 27 A Crim R 315, and concluded most recently with Cornwell v R [2015] NSWCCA 269, it was submitted that, as an exceptional matter, these subsequent events adverse to the applicant should be taken into account by this Court, with the result that the sentence is reduced to some degree.

383. We consider that, in determining this ground, it is important to focus upon what the sentencing judge knew, predicted, and took into account at the time of imposition of sentence. We extract the entirety of what his Honour said in the remarks on sentence under the heading of “Hardship in custody”:

“Counsel submits that the offender, because of the nature of the offences committed and the extent of the publicity of the offender's conduct, faces a risk of retribution within the prison system. It is submitted that the offender is likely to serve his sentence in strict protective custody and this will result in hardship.

The report of Dr Nielssen [a forensic psychiatrist] states that the offender is in fear for his own safety because of the publicity surrounding his case and the abuse he has received from other prisoners. The offender told the psychiatrist he had initially been held in a limited association area, but stated that he had been “tricked” into signing himself into a mainstream protection area where he had daily contact with a large number of prisoners.

Ms Gardiner [the wife of the applicant] said she has visited the offender a number of times in custody. She said the offender was housed with about sixty other prisoners. The offender is concerned at his classification as a “limited association” prisoner and not as a “non association” prisoner and fears for his safety.

Attempts by the solicitor to place the offender in strict protection as a non association prisoner have been unsuccessful and the offender, whilst in protection, is housed with other prisoners. It is submitted that the offender remains at significant risk of harm from other prisoners.

Dr Nielssen, a psychiatrist who has practised in the gaol system, notes the offender faces spending his sentence in very restrictive conditions, with reduced access to facilities and therapeutic programs. Further, he faces the real threat of assault by fellow prisoners, even as a protected prisoner.

The Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168 at [179]; Clinton v R [2009] NSWCCA 276 at [24]- [25] noted special arrangements now exist for classes of prisoners which do not reflect the harsh conditions, degree of isolation or lack of access to programs which those persons in protection previously experienced. Taking into account the profile of the offender, however, there remains the potential for violence as indicated by Dr Nielssen.

I take into account that the offender is likely to suffer harsher conditions, including fear for his safety, when serving the sentence to be imposed.”

384. Turning to our determination of this question, it is quite true that there is an exceptional class of case in which this Court has reduced sentences based upon subsequent events to do with topics that were imperfectly known to a sentencing judge. Examples of the subject matter have included subsequently developing illness (see, for example, Smith and Bailey v R (1988) 35 A Crim R 458); the provision of assistance to authorities in the prosecution of co-offenders (see JM v R [2008] NSWCCA 254); and the receipt of inadequate medical care and attention in custody (see, for example, R v Keir [2004] NSWCCA 106 and Turkmani v R [2014] NSWCCA 186). Whilst caution has been expressed about expanding those categories (see Cassar v R [2013] NSWCCA 147 at [51]), they undoubtedly exist, and are not necessarily closed.

385. So much may be accepted. But here, reading the entirety of the extract from the remarks on sentence, we consider it plain that the sentencing judge was well aware of the potential for the applicant to be the subject of serious verbal and physical abuse in custody. We say that not only because of what his Honour actually said, but also because, as our discussion of other grounds of appeal have shown, his Honour was perfectly aware that there had been an enormous amount of publicity, much of it vitriolic, about the proposition that the applicant had sexually assaulted many young girls. We do not accept that his Honour was under any misapprehension about what was very likely to happen to the applicant in custody. Nor do we accept that the sentence imposed by his Honour fails to reflect those eventualities.

386. What has happened to the applicant since his imprisonment, as demonstrated by the undisputed affidavit evidence, is unquestionably to be condemned. But a fair reading of what his Honour said about the topic, in the context of the proceedings as a whole, is that exactly what his Honour expected would happen has indeed happened. In those circumstances, there is no room for application of the exceptional basis for intervention relied upon in support of this ground of appeal.

387. Although leave should be granted to argue it, we do not uphold this ground of appeal.

Referral by the Crown

388. Nevertheless, it should be observed that the affidavits received from both parties raised disturbing matters as to the conditions under which the applicant is being kept in custody. The matters there revealed ought, in our view, to be considered by relevant authorities.

389. If the applicant were to be resentenced, they would provide a basis upon which a conclusion might be reached that some lesser sentence should be imposed upon him, as the Crown properly accepted.

390. That information, described by the Crown in submissions to have disclosed a number of disturbing incidents which have occurred while the applicant has been held in custody which should not have happened, have understandably led him to have fears about the conditions under which he is incarcerated. Those incidents having been ventilated in open court, as they were, raise matters of considerable, obvious, public interest which we consider ought to be referred by the Crown to the Minister and the Commissioner of Corrective Services (NSW).

Orders

391. For these reasons we make the following orders:

1. Refuse leave to raise ground 5 of the appeal.

2. Appeal against conviction dismissed.

3. Grant leave to appeal against sentence. 

4. Appeal against sentence dismissed. 

**********

Amendments

14 April 2016 - [189] typographical error corrected at second line

Decision last updated: 14 April 2016