IO v The King

[2025] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

IO v R [2025] NSWCCA 123

Hearing dates:

18 July 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Before:

Ball JA at [1]
Fagan J at [141]
Sweeney J at [142]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – trial by judge alone – historical sexual offending – where complainants’ evidence at trial and in police statements regarding timing of alleged offending inconsistent with objective circumstances – where Crown amended time period of alleged offending in indictment prior to trial to account for alibi – where complainants’ evidence regarding timing of alleged offending inconsistent with amended indictment – whether open to trial judge to be satisfied of guilt beyond reasonable doubt notwithstanding complainants’ mistakes as to timing – verdict not unreasonable

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 294

Evidence Act 1995 (NSW), ss 38, 97

Cases Cited:

Dansiev The Queen (2022) 274 CLR 651; [2022] HCA 25

LS v R [2024] NSWCCA 110

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177

Pell v R (2020) 268 CLR 123; [2020] HCA 12

R v Kennedy [2000] NSWCCA 487; (2000) A Crim R 34

R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep)

Category:

Principal judgment

Parties:

IO (Applicant)
Rex (Respondent)

Representation:

Counsel:
D Carroll (Applicant)
A Brown (Respondent)

Solicitors:
Clover Legal (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/241006

Publication restriction:

Publication of names and any information or material that may lead to the identification of the complainants, the complainants’ families and the applicant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 February 2024

Before:

CJ Smith SC DCJ

File Number(s):

2020/241006

HEADNOTE

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

On 2 February 2024, following a Judge alone trial before the District Court, the applicant was convicted of 24 counts of sexual offending against four male children between 1979 and 1987.

The offences for which the applicant was convicted were committed against “DB”, “RB” (DB’s younger brother), “JP” and the applicant’s biological son, “MC”.

Consistently with the witness statements provided by DB and RB (and with the evidence they gave at trial) the Crown originally alleged that a number of the offences against DB and RB occurred in the various periods between 1 January 1975 and 31 December 1980. However, following an alibi notice served by the applicant to the effect that he could not have committed the offences because he was in custody from 7 April 1977 through to 1 December 1979 (in fact, the period was 1 June 1977 to 22 November 1979), the Crown amended the Indictment to allege that the offences were committed during periods where the applicant was not in custody. The result was that a substantial number of the offences alleged to have been committed against DB, RB and JP were alleged to have been committed at times that were different from the times supported by the evidence given by DB, RB and JP.

Notwithstanding the inconsistencies in DB, RB and JP’s evidence as to the timing of the alleged offending, the primary judge, C Smith SC DCJ, was satisfied beyond reasonable doubt that the applicant was guilty of 24 offences as particularised in the amended indictment.

The applicant advanced two grounds of appeal: (1) The verdicts are unreasonable, or cannot be supported, having regard to the evidence; (2) His Honour erred in finding time was not of the essence in respect to [counts] 1-7; 9-10; and 16-19 (being those counts involving DB, RB and JP).

It was the applicant’s case that it was not open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt in relation to counts involving DB, RB and JP as they each gave categorical evidence that the offences were committed at a time that they could not have been, and that evidence was tied to other events in their lives which at least raised a doubt about whether they could merely have been mistaken about the timing of the offences.

In relation to MC, the applicant submitted that the verdict was unsafe as MC initially denied that he had been abused both to his mother and the police when he was 12 or 13 years old, and MC gave implausible evidence that he confronted the applicant regarding the abuse over the telephone approximately 15 years after the abuse occurred.

The Court Held (Ball JA, Fagan and Sweeney JJ agreeing) granting leave to appeal and dismissing the appeal:

In relation to the offences concerning DB, RB and JP:

1. The applicant’s submission that many of the offences could not have occurred because they were said to have been committed at a time when the applicant was in prison mischaracterised the issue. What was alleged in the amended indictment was that the offences were committed at a time when the applicant was not in prison. It was necessary for the prosecution to prove beyond reasonable doubt that the offences were committed at those times. In that sense, time was of the essence. The issue was whether the prosecution discharged that onus in circumstances where each of DB, RB and JP gave evidence that the offences occurred at different times. That turned on whether the trial judge could be satisfied beyond reasonable doubt that each of DB, RB and JP had simply made a mistake about the timing (and their ages). In light of the evidence adduced at the trial, including extensive evidence of the applicant’s tendency to engage in sexual acts with young boys, such a finding was open to the primary judge. That DB, RB and JP incorrectly recalled some details surrounding the offences, or could not recall other details, can be explained by the passage of time and did not detract from the truthfulness of their account: [104], [110], [112], [121]-[125], [129]-[132] (Ball JA), [140] (Fagan J), [142] (Sweeney J).

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v R (2020) 268 CLR 123; [2020] HCA 12; M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177, applied.

1. In the absence of any challenge by the applicant to the amendment of the indictment by the Crown, the applicant’s reliance on R v Kennedy [2000] NSWCCA 487; (2000) A Crim R 34 for the proposition that time was made of the essence in relation to the offending, was misconceived: [92]-[93].

R v Kennedy [2000] NSWCCA 487; (2000) A Crim R 34, distinguished. R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep), considered.

In relation to the offences concerning MC:

1. Delay and reluctance in reporting childhood sexual abuse is a common feature of offences of that type. MC’s explanation of why he initially denied the offences was entirely plausible and provides no reason for doubting his evidence. Additionally, the fact that MC may have been mistaken about the circumstances of the telephone call to the applicant could not raise a reasonable doubt concerning his evidence about the offences themselves: [135]-[137].

JUDGMENT

1. BALL JA: The applicant seeks leave to appeal against his conviction on 2 February 2024 following a Judge alone trial before the District Court (C Smith SC DCJ) of 24 counts of sexual offending against four male children between 1979 and 1987. He was sentenced to an aggregate of 16 years imprisonment with a non-parole period of nine years commencing on 16 December 2022. The applicant advances two grounds of appeal:

“GROUND 1: The verdicts are unreasonable, or cannot be supported, having regard to the evidence.

GROUND 2: His Honour erred in finding time was not of the essence in respect to [counts] 1-7; 9-10; and 16-19.”

2. The applicant does not challenge the sentence imposed on him.

3. The offences for which the applicant was convicted were committed against “DB”, “RB” (DB’s younger brother), “JP” and the applicant’s biological son, “MC”. Set out below is a table summarising each offence and the indicative sentence imposed in respect of it (as is apparent from the table no evidence was led in relation to Count 8 and it was dismissed):

Count	Offence	Particulars	Age of Victim	Sentence
Offending against DB
1	Procure indecent act with male s 81A Crimes Act 1900	Between 22 November 1979 and 31 December 1980 at the applicant’s flatette at Chippendale, the applicant fondled DB’s penis and placed his budgerigar on DB’s erect penis.	15	7 months
2	Indecent assault on male s 81 Crimes Act 1900	On the same day as Count 1, the applicant masturbated himself to ejaculation while fellating DB.	15	2 years, 6 months
3	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, in the back of the applicant’s van at Mosman, the applicant masturbated himself while fellating DB.	15	2 years, 3 months
4	Indecent assault on male s 81 Crimes Act 1900	During the same incident, the applicant pushed his “stump finger” into DB’s anus.	15	2 years, 3 months
5	Procure indecent act with male s 81A Crimes Act 1900	During the same incident, on the applicant’s instruction, DB masturbated the applicant until the applicant ejaculated.	15	10 months
6	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1981, at the applicant’s apartment at Marrickville, the applicant gave DB alcohol and fellated him.	16	1 year, 10 months
7	Indecent assault on male s 81 Crimes Act 1900	During the same incident, the applicant put DB face down on the bed, got on top of him and rubbed his penis between DB’s buttocks and legs.	16	1 year, 6 months
8	Indecent assault on male s 81 Crimes Act 1900	No evidence was adduced with respect to this Count.	16	-
9	Buggery s 79 Crimes Act 1900	During the same incident, the applicant engaged in penile/anal intercourse with DB.	16	5 years
Offending against RB
10	Procure indecent act with male s 81A Crimes Act 1900	Between 22 November 1979 and 31 December 1980, in the back of the applicant’s van at Chatswood, the applicant masturbated himself in the presence of RB. RB refused to touch the applicant’s penis.	12	7 months
11	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, at the applicant’s flat in Chippendale, the applicant fellated RB until RB ejaculated.	12	2 year, 9 months
12	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 13 December 1981, at the applicant’s flat in Marrickville, the applicant masturbated himself to ejaculation while fellating RB.	13	2 years, 6 months
13	Indecent assault on male s 81 Crimes Act 1900	Between 12 December 1980 and 13 December 1981, in the change rooms at Flat Rock Oval at Willoughby, the applicant fellated RB.	13	2 years, 6 months
14	Indecent assault on male s 81 Crimes Act 1900	During the same incident, the applicant grabbed RB’s hands and put them on the applicant’s testicles. RB fondled the applicant’s testicles.	13	1 year, 2 months
15	Solicit male or incite male to commit indecent act s 81B(1)(a) Crimes Act 1900	During the same incident, the applicant pushed RB’s head towards the applicant’s penis and attempted to coerce RB to fellate him.	13	8 months
Offending against JP
16	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, at the applicant’s flat in Chippendale, the applicant fondled JP’s penis and fellated him. JP ejaculated in the applicant’s mouth.	14	2 years, 9 months
17	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, in the back of the applicant’s van at an unknown location in Sydney, the applicant fellated JP until JP ejaculated in the applicant’s mouth.	14	2 years, 9 months
18	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, at the applicant’s flat in Chippendale, the applicant fondled JP’s penis and fellated him. JP ejaculated into the applicant’s mouth.	14	2 years, 9 months
19	Attempt buggery s 80 Crimes Act 1900	During the same incident, JP awoke to the applicant’s penis pushing against his bottom.	14	2 years, 6 months
Offending against MC
20	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 31 December 1980, at the applicant’s flat in Chippendale, the applicant and MC fondled each other’s genitals.	7	1 year, 6 months
21	Procure indecent act with male s 81A Crimes Act 1900	During the same incident, the applicant suggested that MC touch the applicant’s genitals.	7	10 months
22	Indecent assault on male s 81 Crimes Act 1900	Between 22 November 1979 and 3 June 1984, at the applicant’s flat in Leichhardt, the applicant fellated MC.	10	3 years
23	Indecent assault on male s 81 Crimes Act 1900	During the same incident, the applicant had MC fellate him.	10	3 years
24	Buggery s 79 Crimes Act 1900	Between 22 November 1979 and 3 June 1984, at the applicant’s flat in Leichhardt, the applicant engaged in penile/anal intercourse with MC.	10	5 years
25	Homosexual intercourse by step father/father s 78N Crimes Act 1900	Between 12 November 1984 and 31 March 1987, at MC’s house in Dharruk, the applicant and MC fellated one another in the bathroom.	13	5 years

The trial

4. Each of DB, RB, JP and MC gave evidence at the trial. The Crown also led evidence from JM, DB and RB’s mother, KLJ, DB and RB’s sister, KC, who had been engaged to DB, AF, RB’s ex-wife, Detective Senior Constable Daniel Pinter and Detective Senior Constable Leza Pessotto.

5. The Crown tendered a number of documents through DSC Pinter including records from North Sydney Boys High School, the birth certificates of the complainants and documents relating to Initial Services, a company for which the applicant had worked. DSC Pinter also gave evidence of enquiries he had made, most of which were not fruitful.

6. In addition to the cross-admissibility of the evidence of the four complainants, the Crown also relied on a statement of agreed facts to establish that the applicant had a tendency to have a particular state of mind namely an interest in male children and to act on that state of mind by engaging in various activities. The tendency notice served by the Crown under s 97 of the Evidence Act 1995 (NSW) identified a large number of activities. Relevantly, they included: “grooming” a male child, touching a male child’s genitals, trying to have a male child touch his genitals, procuring a male child to touch his genitals, performing fellatio on a male child, having a male child perform fellatio on him, attempting to have a male child fellate him, touching a male child’s anus with his finger, rubbing against a male child’s body with his penis, penetrating a male child’s anus with his penis and attempting to penetrate a male child’s anus with his penis.

7. The statement of agreed facts records that (1) on 1 June 1977 the applicant, who was 32 at the time of the offences, was convicted of indecent assault on two boys, one aged 14 and the other aged 9; (2) on 30 April 1984 the applicant, who was 38 at the time of the offences, was convicted of indecent assault on a boy aged 14; (3) on 29 May 1987 the applicant, who was 41 at the time of the offences, was convicted of 6 counts of committing an act of indecency on a boy who was aged 9; (4) on 21 April 1988 the applicant, who was 41 or 42 at the time of the offences, was convicted of attempted homosexual intercourse, 10 counts of homosexual intercourse and 8 counts of gross indecency involving 3 boys, two aged 13 and the third aged 15; (5) on 18 June 2003 the applicant, who was 58 at the time of the offence, was convicted of aggravated indecent assault on a boy aged 12; (6) on 8 February 2022 the applicant, who was 75 at the time of the offence, was convicted of grooming a child under 14 years for unlawful sexual activity. The victim was a boy aged 11. The statement of agreed facts gave details of each offence. The details are not important for present purposes. The defence accepted at trial that “it was open to the court to conclude on the basis of the agreed facts that the Accused possess [sic] the tendencies asserted by the Prosecution”.

8. The applicant did not adduce any evidence.

9. Consistently with the witness statements provided by DB and RB (and with the evidence they gave) the Crown originally alleged that a number of the offences against DB and RB occurred in the periods 1 January 1975 to 31 December 1976, 1 January 1978 to 2 February 1979, 1 January 1978 to 31 December 1978 or 1 January 1979 and 31 December 1980. However, following an alibi notice served by the applicant to the effect that he could not have committed the offences because he was in custody from 7 April 1977 through to 1 December 1979 (in fact, the period was 1 June 1977 to 22 November 1979), the Crown amended the Indictment ultimately to allege that the offences were committed during the periods stated above. The result was that a substantial number of the offences alleged to have been committed against DB, RB and JP were alleged to have been committed at times that were different from the times supported by the evidence given by DB, RB and JP. That fact took on considerable significance at the trial and lies at the heart of the grounds of appeal.

Evidence concerning the applicant and his family

10. The applicant was borne on 13 September 1944. At a time that is not clear from the evidence, he married IM. They had five children, MC, who was born on 29 June 1973, his two older brothers, PO and DO, an older sister, SO and a younger sister, SOO. DO committed suicide several years prior to MC giving evidence. In about 1967 or 1968, KM, a nephew of IM who was born on 15 August 1964, moved in with the family. He died on 20 September 1991.

11. Prior to 1977, the family lived in the Eastwood/Gladesville area. They then moved to a four-bedroom housing commission house in Cumbernauld Crescent, Dharruk. On 7 April 1977, the applicant was sent to prison. At about that time or shortly before (MC says that it was in about 1976), the applicant and his wife separated. They were divorced in 1979.

12. Shortly after the applicant was released from prison on 22 November 1979, he moved into a small flat at 4/94 City Road, Chippendale. KM moved in with him shortly afterwards. In about late 1979 (the evidence is unclear about precisely when), the applicant obtained a job as a driver for a commercial laundry company variously described as “Initial” or “Initial Services” or “Initial Laundry Services” at Artarmon. Later, he became a supervisor, at which time he spent more time in the warehouse.

13. In about October 1980, the applicant moved to a flat at 6/12 George Street, Marrickville. He was in prison between 3 June 1983 to 12 November 1984 and then again between 31 March 1987 and 20 July 1995. At some stage he lived at an address in Leichhardt.

Evidence relating to the offences against DB

14. DB was born on 11 September 1965. In the early 1970s he lived with his parents, brother, sister and grandfather in an apartment in Barton Road, Artarmon. He attended Artarmon Public School until the end of 1977, when he went to high school at North Sydney Boys High School, although DB gave evidence that he started high school in 1977. DB did not get on well with his father, who was physically and mentally abusive towards him. RB was their father’s favourite.

15. According to DB, his mother, who had worked in the canteen at the Australian Broadcasting Corporation (ABC), commenced working for Initial Laundry Services. DB cannot recall exactly when, but he says that it was “definitely” during his senior years at primary school. JM gave evidence that she had other jobs between when she left the ABC and started at Initial Laundry Services, but she could not recall when she started to work for Initial Laundry Services. She thought that she was about 38 or 39. She was born in 1939. She worked for Initial Laundry services for about two years.

14. It was DB’s evidence that he met the applicant at Initial Laundry Services while visiting his mother. His evidence was that the applicant drove a white van that had Initial’s logo written on its side, that the applicant delivered blue hand towels that were in rolls and that his nickname was “Popeye”, that he had a beard and was missing the top half of one of his fingers. DB said that the applicant wore a short-sleeved shirt and “stubby shorts”. DB’s evidence was that the applicant’s personal vehicle was a metallic blue Ford Falcon station wagon.

15. DB’s evidence was largely consistent with evidence given by JM. She recalls that the applicant was working as a driver at Initial Laundry Services and that they met about two or three weeks after she started working there. He was still there when she left. JM also recalls meeting KM and some other members of the applicant’s family at the laundry. She gave evidence that both DB and RB met the applicant at the laundry. According to her, both were still at Artarmon primary school at that time. They went to Initial Laundry Services before and after school, which was just across the road, and waited for school to start in the morning and for her to finish work in the afternoon.

16. Shortly after the applicant and DB met, the applicant took DB roller skating at Roller Derby in Broadway with two or three other boys including KM, who was older than DB and who DB believed at the time was the applicant’s son. DB was “pretty sure” that his brother, RB, also went. DB cannot recall whether anyone else accompanied them.

17. According to DB, on the second occasion DB went skating with the applicant, they went back to the applicant’s place on the corner of City Road and Cleveland Street, Chippendale, where the applicant had a ground floor flat in a large terrace house. According to a diagram drawn by DB, the flat consisted of a lounge room, kitchen and bedroom. The kitchen and lounge room were open plan. The bedroom had a door. DB also thought there was a toilet or bathroom inside the flat, although he could not recall its location.

18. On that occasion, DB said that the applicant said “We don’t wear clothes in here, you know”. They took their clothes off. The applicant performed a trick of extracting a BIC biro pen from his penis, following which he fondled DB’s penis causing DB to get an erection (Count 1). The applicant then “cajoled” DB to putting the applicant’s pet budgerigar onto DB’s own erect penis. The applicant took a photograph of the event and later had the photograph developed in a store in Chatswood. DB gave evidence that the applicant subsequently showed the photograph to DB’s sister (KLJ) and her boyfriend in DB’s presence. KLJ, who gave evidence, could not recall seeing the photograph, although she did recall that in about 1994 DB mentioned the incident to her and said to her that “You knew all about it”, referring to sexual abuse by the applicant. RB gave evidence that he had a “vivid recollection” of the incident, although in cross-examination he was more equivocal and in his statement to the police he only referred to seeing a photograph of the incident.

19. Subsequently, DB went alone with the applicant into the bedroom. DB’s evidence was that the door was then closed and the applicant “sucked my penis, and he was, you know, masturbating himself” (until he ejaculated) (Count 2). Following that, they left the bedroom and the applicant took RB into the bedroom and closed the door. Both DB and RB stayed the night, sleeping in bunk beds that were in the bedroom. DB says that he did not talk to RB about what happened in the room “Not to this day”.

20. JM also gave evidence that both DB and RB on occasions would stay overnight with the applicant, on some occasions together and on others separately. DB was the first to stay overnight with the applicant. The applicant told her where he lived. Her recollection was that it was “somewhere in Cleveland Street here in the city”, although she never went there. Her evidence was that the applicant asked her on occasions whether DB and RB could stay for tea. Later, the applicant or one of the boys called her and ask if they could stay overnight. She agreed, provided they came home the following day.

21. DB says that there were many occasions where he went to the applicant’s flat, but he could not recall how many. In cross-examination, he said this:

“Q.   How many times all up do you think you went to these premises in Chippendale occupied by [IO]?

A.   How many times? I, I, I didn’t take a tally at the time, and to recall how many times now, it – followed you know – compounded by the confusion of the actual events, and that confusion caused by actual events, it’s difficult to say.”

24. DB did not recall going there alone, without his brother. KM was also present. On each occasion it was the same routine “virtually every time”. Most of the time they would go roller skating first. They could do what they wanted, such as swear and smoke cigarettes. They would go back to the applicant’s flat where the applicant would suck DB’s penis and masturbate. On other occasions, RB would be in the bedroom and DB not.

25. Shortly after DB first went to the Chippendale flat, the applicant started taking DB with him on delivery runs. On one occasion, DB met the applicant at the Initial Laundry Services depot after school or during school holidays. The applicant drove down Military Road, Mosman into Georges Heights where he pulled over and said “Come in the back of the van”. There was no screen between the front of the van and the back and DB’s recollection is that he climbed into the back of the van from the front seat. While DB was standing in the back of the van the applicant pulled down DB’s pants and removed his own pants. The applicant fellated DB while masturbating himself (Count 3). After that, the applicant got DB to lie down on his side on top of the laundry bags and told DB to suck his penis. DB replied “No, I don’t want to”. In response the applicant said “Your brother does”. The applicant then pushed his “stump finger” into DB’s anus (Count 4). The applicant then got DB to masturbate the applicant’s penis for more than a minute after which the applicant ejaculated into DB’s eye (Count 5). They put their clothes back on and returned to the laundry.

26. DB said he went in the van with the applicant a number of times where something sexual happened. According to DB “It sort of become like a blur and it was like any, any chance he got, you know, he, he – he’d used to go through my mum, you couldn’t get away from him”. The applicant told DB “Don’t tell anyone, I could get in big trouble for this”.

27. DB’s family had a caravan. DB recalls that one year the family stayed at Narrabeen Caravan Park between August and April. He and his brother would commute to and from school during the school week. According to DB, the applicant used to visit them there, although it was JM’s evidence that they went to Narrabeen Lakes when DB and RB were young.

28. According to DB, at about the time DB started high school in year 7, he and his family moved to a house in Naremburn. At about the same time, the applicant moved to a flat in Marrickville in a three-storey block. DB drew a diagram of the flat which showed the location of a bedroom, lounge room and kitchen. It was DB’s recollection that the flat was not on the ground floor.

29. When DB and RB were older, the family used to go on weekends to Avoca on the Central Coast. Originally, they took their caravan. However, later, after the caravan had been sold, they hired a caravan there. According to DB and his mother, the applicant on occasions also used to be there, staying in a big old army tent with KM and DO, according to JM. At that time, according to JM, KM would have been about 16 or 17 and DO only about 6 or 7. DB thought that the applicant was accompanied by a younger girl and boy.

30. DB recalls the first occasion he attended the applicant’s Marrickville flat. The applicant had picked DB and RB up in his blue station wagon. DB could not recall whether he was living in Artarmon or Naremburn at the time. KM was also in the vehicle with another boy. They went roller skating before going to the Marrickville flat. When they arrived, they sat on the lounge and had alcoholic mixed drinks. The applicant went into the bedroom and called DB in. DB was reluctant to go but did. The applicant shut the door and got DB to lie on the bed. He sucked DB’s penis (Count 6) and, according to DB, then used his training as a judo coach to position DB so that he (DB) was lying face down. The applicant rubbed his penis between DB’s buttocks and legs (Count 7) and then anally penetrated DB until ejaculation (Count 9). DB says that it “was a bit messy” and that the applicant “wiped it up”. The applicant said “It will be alright. It’s our secret, you’ll get to like it”.

31. DB then left the bedroom. He stayed overnight at the Marrickville flat. Within the next few days (DB puts it variously within a couple of days or a week or two), DB took a packet of his mother’s Valium pills and ingested 20 pills. After ingesting the Valium, DB was taken to the Pallister school in the Greenwich Hospital grounds for an assessment. The school was for troubled children. DB explained in his oral evidence that he took the tablets after “Being brutally molested by a paedophile”. Later, DB shaved his hair off, since the applicant had previously told him that he had nice hair. When the applicant remarked on his shaved hair, DB replied “Yeah, mate … I look ugly now”.

32. The evidence is that DB was in fact admitted to Pallister in March 1979, at a time that the applicant was in prison. DB was at North Sydney Boys High School in year 8 at the time. When cross-examined on this discrepancy, DB gave the following evidence:

“Q.    What I want to suggest to you is that it is physically impossible for you to have ever met IO until at least 22 November 1979. Do you agree with that or disagree?

A.    The date of meeting IO is not indelibly stamped in my mind as a calendar date. Meeting IO and going through what he did to me is indelibly stamped in my mind. The timeframe as a 12 year old boy, and your mind's swimming around in those events, it can't be pinpointed to an exact hour and time, minute, calendar date, shape, size of bed, but the acts and actions that he committed upon me, continue and with malice, and the way he went about it, and the way he went through it and did what he did, is indelibly stamped in my mind. The confusion exists because it's--

Q.    I'll stop you there?

A.    --your job to create that confusion and doubt.

Q.    I'll put the dates to one side. What I'm suggesting to you is that it was physically impossible for you to have met IO until at least six months after your referral to Pallister. Do you agree with that or disagree? Couldn’t have met him, impossible?

A.    I find that hard to believe.

Q.    You find it hard to believe because, and if these things had happened to you, and they couldn't have happened at the hands of IO because you never met him until six months after your referral to Pallister. Do you agree with that?

A.    I can't agree with that.”

33. DB finished school in year 10 in 1981. He commenced an apprenticeship as an electrical fitter/mechanic in January 1982.

34. Apart from his conversation with his sister, KLJ, there was evidence of two other occasions on which DB had complained to others that he had been sexually abused by the applicant. KC gave evidence that when she and DB were going out, which was in the period from about 1990 to 1992, DB told her that he had been molested as a young boy and that he knew who the perpetrator was, but did not give her any details of the abuse or his abuser.

35. JM gave evidence that sometime in the late 1990s while managing the Spanish Motel at Wahroonga she found a letter written by DB in which DB said that “It’s all your fault. Your best mate sexually assaulted me. You remember your best mate, IO?” The letter was written on three to five pages about the size of a standard tissue box. The letter also said it wasn’t only him who had been abused by the applicant, but it was also the ”blue eyed boy” (a reference to RB). According to JM, the letter was all about the applicant. She no longer has the letter. DB gave evidence that he believes he wrote a letter to his mother, but he cannot recall what was in it.

36. DB first provided a statement to the police concerning his sexual assaults in 2014. He did not complete the statement at that time and it did not refer to the events in Marrickville. However, he says that he reported those events to the Marrickville police during the royal commission into police corruption, after his mother had told him that the applicant’s property had been raided by police and that child abuse material was located there. His complaint to the police was dismissed at that time. He did not complete his formal statement to the police until 2019.

37. DB told his brother that he had reported his abuse to the police, but they did not discuss the details. RB gave evidence to similar effect. He said that DB told him “[w]ell over ten” years ago that he had made a complaint to the police and that he [DB] had “had a pretty bad result” in relation to the complaint. However, they did not discuss the details of DB’s claims.

38. DB accepted that he was friends with JP, but he cannot recall living with him. He denied ever discussing the applicant with him.

Evidence relating to the offences against RB

39. RB was born on 13 December 1968. He recalls living at the Artarmon flat until he was about eight years old when the family moved to Naremburn. He remembers that his mother started working at Initial Laundry Services before they moved out of the Artarmon flat. His recollection was that she did not work there for any more than two years. He used to go to Initial Laundry Services premises to see his mother before and after school. He cannot recall the year he first met the applicant, although he gave this evidence:

“A.    Yeah, I was just trying to figure my age out, and what age I would have been in Year 10 and what year it was - well, I went to high school in 1982, so Year 5 was two years before, so it would have been 1980 - 79, 80, yeah.”

40. RB says that one morning he was walking near the traffic lights on his way to school at about 8:40 am when the applicant pulled up in his van, which had an “IS” logo on the side of it and said “Would you like the day off school, I can write a note for you”. RB, who hated school, took the applicant up on his offer. According to RB, the van only had a driver’s seat. RB sat on rolls of hand towels at the front of the van near the windscreen. The applicant did his rounds. RB says that he can vividly remember a cordial factory at Brookvale, because “it stunk, it was the worst smell I’d ever smelt”.

41. After completing his rounds, the applicant drove to a park on Penshurst Street near Boundary Street. The applicant got out to go to the toilet and gave RB a “hardcore triple X” pornographic magazine. When the applicant returned he got into the back of the van and removed his pants. He had an erect penis and started masturbating himself. He asked RB to join him in the back of the van and said “Did you want to touch it?” to which RB replied “No” (Count 10). The applicant ejaculated “On his belly I think, yeah”. He put his pants on and got back into the van and they drove back to Artarmon. The following day the applicant gave RB a note which RB gave to his fifth-class teacher, Mr Kayto. RB was in year 5 in 1979. In cross-examination, RB said that he could have first met the applicant at the end of year 4. He was cross-examined further about the timing, and gave this evidence:

“Q.    Sitting there now, [RB], are you able to say how old you were at the time of this incident you've described with the van?

A.    11, possibly 10.

Q.    Is that based on your own mathematical calculations to get yourself to 5th    grade?

A. Yeah, which I'm not too good at, yeah.

Q.    But again the starting point is you were in 5th grade and you're working back from there?

A.    Yeah.”

When it was put to RB that he could not have met the applicant until at least November 1979 (the end of year 5), RB said “I don’t agree with that.”

42. RB gave evidence that he thought there were other incidents like that before the family moved to Naremburn. He gave this evidence:

“A.    Yeah I'm quite sure there was, but I have not much pinpoint recollection of it. But yeah, yeah it definitely happened a few - yeah, yeah I'd been - yeah he - I can't remember if - no when I started going over and staying at his place with [KM] and all of them we were definitely at Naremburn. Yeah, yeah.”

43. RB says that the applicant bought him a red and white striped skip twin fin surfboard (which the applicant kept) and that he used to take “all us boys down in Maroubra Beach quite often for a surf”. He recalls some of the other children who went included KM, who was living with the applicant, and occasionally the applicant’s son.

44. RB went to the applicant’s residence in Chippendale on about six occasions over a two or three month period before the applicant moved. RB described the residence as a bedsit on City Road. It was on the ground floor at the back of the building and consisted of one room with a double bed and king single bed in it, a small kitchenette and bathroom, although RB conceded in cross-examination that the toilet could have been a communal one, outside the bedsit. RB recalls that there were “pornos all through the room”.

45. RB was cross-examined about evidence given in his statement to the police in which he described the first occasion he can recall he was abused in the applicant’s flat. In that statement he said that the applicant got naked as soon as they arrived at the flat after an outing. He then said that the applicant “prompted me into the bathroom and assaulted me”. He was cross-examined with a view to establishing that this evidence was implausible because RB accepted that the bathroom was a communal one outside the flat. In response to that cross-examination, RB said that his statement should not be understood as saying that the assault followed immediately after the applicant got naked and that he could have put some clothes on before going to the bathroom.

46. On one occasion (not the first) RB went to the flat, he recalls that KM and the applicant, but not DB, were present. The applicant showed them photos of children in “various states of undress and … states of arousal”. The applicant sent KM down to the shop. RB became aroused. The applicant was not wearing much by this stage. He pulled down RB’s pants and fellated RB until he got an orgasm (Count 11). RB cannot recall what happened after that, but they were dressed when KM returned and it is likely they went across the road and kicked a football or hit a hockey ball. RB indicated that there were probably several other occasions when something similar happened.

47. RB recalls attending the Chippendale flat on other occasions with his brother. As I have said, he gave evidence in chief that he had a vivid recollection of the incident with the budgerigar. He also recalls one or two occasions when he saw the applicant with DB’s penis in his mouth, although in his statement to the police he said that he had never witnessed the applicant assaulting anyone else. On occasions, the applicant would take RB (or DB) to the bathroom which RB described in these terms:

“Tiny little bathroom, must have been junkies or something living in there previously, because we'd see the blood splatters from the walls that they squirt their needles out. It was quite a scary little bathroom to tell you the truth, yeah.”

According to RB, “he basically attacked us both [that is him and DB] in private, yeah. There was the little bathroom down the back, he would take you in there”.

48. After the applicant moved to Marrickville, RB went to that flat. The flat was on the first floor of a block of units. RB had drawn a diagram for the police showing a layout of the flat, which was tendered. The diagram showed that the flat consisted of a lounge room, a kitchen, two bedrooms, a bathroom and a separate toilet. There was a double or queen-sized bed in one bedroom, where the applicant slept. RB (but not DB) recalls that it was a waterbed, although that is not how he described it until prompted in cross-examination. RB could not recall how many beds were in the second bedroom, but there may have been a bunk bed and single bed.

48. On the first occasion RB went to the Marrickville flat, KM and DO were also present, plus possibly a couple of other people. RB was 10 or 11 at the time. The applicant “prompted” RB into the applicant’s bedroom where there were pornographic magazines on the bed. The applicant left RB in the bedroom for about five minutes and then came in and shut the door. By this time RB was aroused. The applicant pulled RB’s pants down and put his penis in the applicant’s mouth, took his own shorts off and masturbated. RB “had an orgasm” (Count 12).

49. RB also gave evidence of other occasions on which the applicant took RB and “a team of kids” to PCYC clubs in Balmain and Redfern and a city billiards club near Central Station on Parramatta Road or to the beach. Sometimes, the applicant took RB camping to Avoca. RB does not believe that he ever went to the Marrickville flat with his brother. Nor did his brother go on the surfing trips.

50. RB played football until the age of 34. He started rugby league at the age of seven. He played for McMahon’s Point for several years. He thought the last year was when he was in the under 12s team, which he thought was possibly in 1980. Since RB was born in December, and the cutoff date for determining age groups was September, RB would have been 11 in that year, suggesting that his last year he played for McMahon’s Point was 1979.

51. In that year, the team trained at Flat Rock Oval. On occasions the applicant, who RB said either coached or trained or managed the under 14s team, would turn up out of the blue to watch him play. On one occasion, RB got to the Flat Rock Oval a little earlier than anyone else. The applicant, who “always had a big bunch of keys on him”, turned up and unlocked one of the changerooms using a key he had. He pulled RB into the changeroom and fellated him (Count 13). The applicant also tried to get RB to fondle the applicant’s testicles, which RB said “I may have done for about ten or 12 seconds” (Count 14). The applicant then pushed RB’s head down towards his penis to coerce RB to fellate him (Count 15). Following that, RB went outside and trained with his team.

52. DSC Pinter gave evidence of investigations he undertook to establish a connection between the applicant and junior rugby league, but he was unable to find any. When cross-examined on the subject, JM said that she knew all the officials at the club. When asked about the applicant she said this:

“Q.   Now, you said before that in your evidence that IO would sometimes turn up at the games?

A.    Mm-hmm.

Q.    Did he have any other connection in an official capacity with McMahons rugby league club, can you remember?

A.    I can remember something about coaching a very young team, but I really couldn't be truthful if I said, ‘Yes.’

Q.    So your best recollection is, ’No,’ is that right?

A.    Well, yes.”

54. On 25 November 1982, shortly before RB’s 14^th birthday, he wagged school, stole a motorbike and crashed it. He suffered a compound fracture to his left leg and some severe head injuries, with the result that he was in the children’s ward at the Royal North Shore Hospital, St Leonards for three months.

55. After giving his evidence in chief, RB made a third witness statement. In that witness statement, which was the subject of further evidence in chief, RB said that the applicant visited him in hospital on two occasions. On one occasion there were others visiting RB and the applicant left after a short time. On the second occasion there was no one else there. RB was wearing a hospital gown. The applicant asked to see RB’s leg and attempted to play with RB’s penis. He then got up to close the curtains and started to lift the sheets and put his hand down towards RB’s crutch area. RB started to shout and the applicant left. RB had only recently recalled the incident following a conversation with a friend about his accident.

56. RB also gave evidence of an occasion shortly after he had been discharged from hospital where RB confronted the applicant after the applicant had passed him a note in a public toilet in Chatswood Chase that expressed “all sorts of sexual gratification in it”.

57. RB says that he told his mother prior to July 2018 that he had been abused by the applicant. That was in the same conversation they had when she told RB that the applicant had been arrested. JM does not give any evidence of that conversation, although she does give evidence of learning much earlier that the applicant had been arrested when she went with RB to the applicant’s flat in Marrickville and was told by a neighbour that he had been.

58. RB said that he told both his first and second wives that he had been sexually abused as a child. That evidence was corroborated by AF, his first wife. She gave evidence that one day (the timing is unclear from the evidence) RB came home after being out three nights clubbing. He appeared to have taken drugs and was very upset (“like an emotional breakdown”). He told her that when he and DB were children they had been sexually molested by a man with other boys “and the man used to, I think, take them to North Sydney Park. It was, it was all rambled, but the man had bought him a bike and given him money”.

59. AF was cross-examined about a statement she had given to police in which she said that RB had told her that he had been paid for sexual favours with the older man and that he and his brother had killed the man by throwing him off the North Sydney overpass off Falcon Street. When cross-examined by the Crown Prosecutor pursuant to leave given under s 38 of the Evidence Act 1995 (NSW), she maintained that that is what RB had said to her. DSC Pessotto gave evidence that she had investigated whether there were any deaths from the North Sydney overpass off Falcon Street between 1980 and 1992. Her enquiries identified only two incidents. One was a suicide in 1982. The other involved the location of bones in 1984. RB denied that he said any such thing to AF.

60. RB also conceded that he had discussed with his daughter the possibility of seeking compensation for his abuse. He also gave evidence that he had been knocked back by the “National Redress Scheme”.

Evidence relating to the offences against JP

61. JP was born on 11 January 1966. He lived in a housing commission flat in Artarmon with his family until sometime after the age of five, when he went to live with his stepfather. While in Artarmon, he became friendly with DB and RB. He played with them regularly. JP believes that the first time he met the applicant was at football training during the pre-season. He did not know that he worked with JM.

62. At a time after he moved from Artarmon, JP played for McMahons Point for a year when he was in the under 13s age group, after which he played for Lane Cove. That was the year that he started going to Crows Nest Boys High School. He started there in year 7 in 1978 (he had repeated year 3). He said in his witness statement that he changed clubs because a few of his mates from High School played for McMahons Point. According to JP, the applicant was JP’s coach at McMahons Point (he was “probably 90 per cent sure”) and the team trained at Waverton Oval.

63. According to JP, the applicant drove a Holden station wagon that had a CB (citizens band) radio that could be used as a public address system. On one occasion, JP accompanied the applicant on a trip to Mount Druitt to pick up the applicant’s children. According to JP, the applicant lived at a place “down the Broadway” and later at a place near Marrickville. The flat in Broadway was in an old terrace building and was very small. It had a bunk bed and another bed in the main room. JP could not recall whether anyone else lived with the applicant, although the applicant’s son was present when JP visited. JP could not remember exactly where the terrace house containing the flat was, but he indicated an area where Cleveland Street joins City Road. According to him, the terraces were “definitely opposite” Victoria Park. JP remembers that the applicant was missing a finger and that he sometimes made jokes about it.

64. On occasions the applicant took JP and others out to an arcade centre down near the bottom of Broadway. After one of those outings, they went back to the applicant’s flat. JP doesn’t recall how, but he ended up going to sleep in the applicant’s bed. JP, who was wearing shorts, woke up to find the applicant fondling his penis. That went on for about 10 minutes after which the applicant fellated JP causing JP to ejaculate into the applicant’s mouth (Count 16).

65. JP went home the following day, but did not tell either his mother or stepfather what had happened. He said that he was terrified of his own mother and never told her anything.

66. JP also gave evidence that on a couple of occasions he accompanied the applicant in his work van delivering laundry. He thought that the van had the name “Alsco” or something like that written on it in green, although he wasn’t certain about the name. On one occasion, the applicant picked him up from home during school holidays and JP accompanied the applicant while he did his deliveries. The van only had two seats and JP sat in the front passenger seat. A little while after JP got into the vehicle, the applicant put his hand underneath JP’s shorts and fondled his penis while he drove.

67. After completing the deliveries, the applicant drove to the depot which JP thought was either in Campbelltown or Chullora. The applicant parked near some bushland and asked JP to get into the back of the van, which JP did by walking between the two front seats. The applicant followed him. The applicant removed JP’s penis from his shorts and “performed oral sex” on him. JP was lying on the bags of laundry and the applicant was on his knees. JP ejaculated into the applicant’s mouth (Count 17).

68. After JP ejaculated he put his penis back into his shorts and returned to the passenger seat and the applicant returned to the driver’s seat and continued doing his rounds, after which he dropped JP back home.

69. A similar thing happened on a couple of other occasions.

70. JP gives evidence of another occasion when he went back to the applicant’s flat in Broadway after an outing. They went to bed. JP woke up to find that the applicant was pushing his penis up against JP’s bottom while JP was still wearing shorts (Count 19), although in his witness statement JP had said that they were naked. JP asked the applicant to stop, which he did. The applicant then started fondling JP’s penis and fellating him. The incident concluded when JP ejaculated into the applicant’s mouth (Count 18).

71. JP also gave evidence that the applicant took photographs of him when he was naked with an erect penis. JP’s face was covered with a magazine. JP had seen similar photographs that had been taken by the applicant and explained that originally he did not want to have his photograph taken, but that the applicant explained that he had done it before and showed JP some examples.

72. JP recalls that the applicant moved to an apartment in the Marrickville area. It had a lounge room, kitchen area, bathroom and two bedrooms. JP went to that flat on three or four occasions. On those occasions, JP said that the applicant “fondled me and sucked my penis”, although he did not refer to that in his statement to the police. Occasionally the applicant’s “younger boy and the girl” were also present, although the incidents mainly occurred when the applicant’s eldest son was present in the flat. On one occasion, JP was allowed to drink alcohol and on that occasion the applicant got JP to hold the applicant’s penis.

73. JP explained that he continued to spend time with the applicant because he was scared of his mother and stepfather “[a]nd apart from what was happening to me he was always nice to me”.

74. JP says that he met the applicant subsequently at Long Bay Gaol where JP was working as a corrective services officer and the applicant was a prisoner. JP was in his mid-20s at the time. The applicant called JP’s name. JP said hello and then left. Subsequently, he resigned because he could not work having the applicant there.

75. JP shared a house with DB when he was about 17 or 18. Prior to that he had limited contact with DB and RB after he moved from Artarmon. He did not discuss his experience with the applicant with either of them. The only person he told was his first wife.

Evidence relating to the offences against MC

76. MC was born on 29 June 1973. His father is the applicant and his mother is IM.

77. MC recalls visiting the applicant in his flat in Broadway after the applicant got out of gaol. He had no recollection of DB or RB or of seeing any other children at the flat apart from his siblings. Although MC gave a description of the flat in a statement he gave to police, he was not confident that it was 100% correct. On one occasion (he cannot recall when it was), he went to the flat with his siblings. While his siblings were out, the applicant asked MC to get undressed and lie on the bed with him so they were both naked. The applicant asked MC to fondle the applicant’s genitals, which MC did (Count 21). They touched each other’s genitals (Count 20). The applicant told MC to keep what had happened a secret and not to tell anyone else. When MC’s siblings returned, he and the applicant were still naked in bed. MC said that it was not unusual for the applicant to be naked “he was a nudist, he liked to be naked all the time…[when] in private”.

78. MC also recalls that the applicant lived at an apartment in Leichhardt which he thought was on “Glebe Road”. When you entered through the front door, there was a lounge room to the side and a long hallway that led to bedrooms. Further down the hallway was a kitchen, bathroom and toilet. The applicant lived at that apartment several years after living at Broadway.

79. MC and his siblings would visit the applicant on weekends and stay overnight. There were photographs of young boys on the walls.

80. MC was asked whether he could remember the first time that something happened to him when he was alone with his father in the Leichhardt flat. Refreshing his memory from his witness statement, MC said he was in the shower and shortly after his father came into the shower with him and “we both performed oral sex on each other” (Counts 22 and 23). MC was eight or nine years old. He said “I remember feeling good about what was happening. My, my father made me feel like it was natural to do that. He made it so it was enjoyable”.

81. Similar things occurred on other occasions. In addition, MC can recall an occasion at the Leichhardt flat when he was 10 or 11. He and the applicant were alone in the applicant’s bedroom on his bed and the applicant put his penis in MC’s anus (Count 24). The incident was very short and during it the applicant said “Relax. It may hurt”. In cross-examination, MC said, when questioned about when the event occurred “It was a time – that was the only moment where he penetrated me that I can never forget”.

82. On another occasion, when MC believes he was 11, he went on a holiday with the applicant staying in a caravan park in Wangi Wangi on the Central Coast. They were accompanied by MC’s siblings and two other boys, who were brothers. One of them, Jason, was in his early teens. Jason would sleep on the main bed in the caravan with the applicant. MC observed them fondling each other under the covers. MC also gave evidence of an occasion when he saw Jason and the applicant in a shower cubicle and he could see his father having anal intercourse with Jason.

83. On the weekend of MC’s 12^th birthday in June 1985, the applicant took him and two friends (who were twins) to a man’s apartment where they were “basically given to this guy to do as he pleased” which predominantly involved oral sex in which the applicant participated.

84. Sometime after that incident, the applicant visited MC’s family home in Dharruk. MC was 12 at the time. While MC was in the bathroom and drying himself after showering, the applicant came into the bathroom and they fellated one another (Count 25). MC thought that this was the last time the applicant sexually assaulted him.

85. Sometime later, when MC was 12 or 13, his mother asked him if the applicant had sexually assaulted him. He denied that he had. His mother took him to the police station where he was interviewed by detectives. He answered the questions as best he could, but felt very uncomfortable. He mentioned some aspects of what had happened to him, but said he didn’t know if he was open about everything. Subsequently, the applicant was sent to prison for a third time.

Relevant legal principles

86. The relevant legal principles in respect of an appeal on the ground that the verdicts are unreasonable, or cannot be supported, having regard to the evidence are not in dispute. In the case of a judge alone trial the finding of guilt by the judge is to be treated as though it was a finding of a jury, and the question for the appeal court is whether it thinks it was open upon the whole of the evidence for the judge to be satisfied beyond reasonable doubt that the accused was guilty: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]-[8]; M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 per Mason CJ, Deane, Dawson and Toohey JJ.

87. In undertaking that task, the court of criminal appeal is entitled to focus on the reasons advanced by the appellant for why the trial judge could not be so satisfied. Moreover, the court of criminal appeal is entitled to proceed on the basis that the trial judge was satisfied that the relevant evidence of the witnesses was credible and reliable, with the result that those findings should only be disturbed where there is a proper basis for doing so. As the High Court said in Dansie:

“[16]   Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

[17]   The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.”

88. Similarly in Pell v R (2020) 268 CLR 123; [2020] HCA 12, the High Court observed in relation to a jury trial (at [39]):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” [footnote omitted]

89. The second ground of appeal is said to raise the question of when time is of the essence in the case of a criminal offence. It is often said that the date of an offence is not a material particular and therefore need not be proved. Two exceptions are said to exist to that principle. One is where time is an essential element of the offence. The other is where time is made essential by the way in which the prosecution is conducted. R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34 (Kennedy) was said by the trial judge to be an example of the latter category. In that case, the applicant had been found guilty in 2000 of two historical sexual offences. The complainant had said that when she was twelve she was watching the wedding of Prince Charles and Princess Diana, which was screened between 6.44 pm on 29 July 1981 and 1.42 am the following morning, when she was taken into another room by her stepfather and sexually abused by him. She also gave evidence that shortly afterwards she had told a friend, TS, at school that her father had interfered with her.

90. The indictment originally alleged that the relevant offences occurred “on or about 29 July 1981”. However, on the date the trial commenced the Crown Prosecutor successfully applied to amend the indictment to allege that the offences occurred “between 29 July 1981 and 23 April 1983”. There was no objection to the amendment on behalf of the accused. The amendment was sought because it became apparent that evidence would emerge in the prosecution’s case (1) from the complainant’s mother that she was also at home watching the royal wedding at a time when the complainant’s evidence placed her as absent from the house playing bingo; (2) from TS that she did not attend the complainant’s school until 1983. It was the prosecution’s case in the light of this evidence that the complainant must have seen a replay of the wedding.

91. In upholding the appeal, Studdert J (with whom Heydon JA and Greg James J agreed) said:

“33   There are cases where time has been made of the essence of the offence. This was such a case, because the complainant, was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent - she said she was 100% sure - that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant’s evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial in the sense referred to by Gleeson CJ in R v VHP (unreported, NSWCCA, 7 July 1997) where the Chief Justice said at 15:

‘As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.’

34   It does not seem to me that it was possible to treat the complainant’s evidence as reliable as to the commission of the offence if it was not reliable as to the date upon which she said it occurred. Yet the effect of the amendment was to obscure this difficulty and the amendment resulted in the jury being left to consider a Crown submission contradicted by the evidence of the complainant that what she was watching on the night of the offence was a replay of the royal wedding rather than a live telecast. It seems to me that the amendment resulted in unfairly depriving the appellant of the possibility of an acquittal which the indictment prior to amendment would have presented.”

92. Whether the issue in Kennedy is properly characterised as one concerning whether time was of the essence is open to some doubt. As Gleeson CJ explained in R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep), and Studdert J ultimately accepted in Kennedy at [33]-[34], the real question was whether the accused was afforded procedural and substantive fairness when the prosecution was permitted to amend its indictment and whether it was open to the jury, acting reasonably, to treat part of the Crown’s case as reliable and another part as unreliable. The significance of the royal wedding was not just that it fixed the time when the offences were alleged to have occurred. Rather, it formed part of the context in which the complainant said the offences occurred. It was her evidence that the offences occurred while she was home alone with her stepfather watching the royal wedding and her mother was playing bingo; and that she told TS about the offences shortly after. That account was not credible because her mother said that she was also home watching the royal wedding, not playing bingo, and the complainant did not meet TS until a couple of years later. Those matters together raised a reasonable doubt concerning the accused’s guilt.

93. In the present case, it is not suggested that the applicant was denied procedural or substantive fairness when the Crown was permitted to amend the indictment. Nor was there any question whether it was open to the Crown to depart from the particulars it had provided. It was essential to the Crown’s case that it establish that the offences were committed during the periods alleged. The question was whether the inconsistency between what was alleged and the evidence given by DB, RB and JP was such as to make the convictions unreliable.

94. Put like that, Grounds 1 and 2 raise similar issues and they can be taken together.

The applicant’s case

95. It is the applicant’s case that it was not open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt in relation to Counts 1-7, 9-10 and 16-19 because DB, RB and JP gave categorical evidence that the offences were committed at a time that they could not have been, and that evidence was tied to other events in their lives which at least raised a doubt about whether DB, RB and JP could merely have been mistaken about the timing of the offences. That doubt is said to be compounded by the fact that DB, RB and JP’s evidence concerning the offences appears to have been contaminated because all three of them make the same or similar errors in timing. The timing of the other offences involving DB, RB and JP are tied to those offences, with the result that a similar doubt is raised in relation to them.

96. The applicant also submitted in relation to DB that the incident with the budgerigar was inherently implausible and inconsistent with the evidence given by KLJ. Lastly, in relation to DB, the applicant submitted that his evidence that the flat in Chippendale had a separate bedroom was contrary to the evidence given by RB, JP and MC. In this respect, the case bore some similarities to LS v R [2024] NSWCCA 110. In that case, the relevant offence was alleged to have occurred on or about 4 November 2017 on a 160 acre property owned by the applicant’s sister at around the time of the wedding of the applicant’s niece (M). It was the prosecution’s case that the offence, which involved the applicant digitally penetrating his grand-daughter (AD) then aged five, occurred in a cabin located on the property. AD gave evidence that M was also in the cabin having a shower at the time. The evidence was that the cabin was a single room with no shower. Ward P (with whom Hamill and Dhanji JJ agreed) thought that that was sufficient to raise a reasonable doubt concerning the alleged offence:

“Ultimately, while I consider that there is no reasonable doubt that the applicant digitally penetrated AD with his finger or fingers on at least one occasion (having regard to the compelling nature of AD’s description of the physical event on that occasion), I am not satisfied beyond reasonable doubt that it was on the occasion of M’s wedding day at the cabin on the East Seaham property (because of AD’s initial confidence that M was there having a shower in another room in the cabin at the time and the objective evidence that makes that account impossible – there being no shower and only one room in the cabin) (at [216]).”

97. The applicant submits that RB’s evidence was unreliable in a number of respects other than timing. First, he gave evidence that he had a “vivid memory” of the applicant putting the budgerigar on DB’s penis, but told the police that he only saw a photograph of the incident. Second, he said that he saw the applicant with DB’s penis in his mouth at the Chippendale flat once or twice. He accepted in cross-examination that that was not something that he would ever forget but he not only did not mention it to the police but positively asserted to the police that he never witnessed the applicant assaulting anyone else. Third, the applicant submits that RB tailored his evidence when giving evidence concerning the applicant’s bed in the Marrickville flat. He had originally described it as an “ensemble bed”, but then when it was put to him that it was a waterbed, he readily embraced that proposition. Fourth, RB’s account of Count 11 was not plausible. It was not plausible that the applicant got naked and then prompted RB into the bathroom when RB accepted that the toilet could have been outside the flat. Fifth, RB’s account of the Flat Rock Oval incident was implausible because there was no evidence that the applicant had any connection with junior rugby league (apart from the evidence given by the complainants). Finally, in view of the evidence given by AF, it was not possible to exclude as a reasonable possibility that if RB was sexually abused as a child it was by someone other than the applicant.

98. The applicant also submits that the material difference between the evidence given by DB and RB further undermines the reliability of the evidence given by each of them. In particular, the applicant points to the fact that DB did not recall going to the Chippendale flat without RB whereas RB did not mention DB’s presence at all when giving his statement to the police. Moreover, DB claimed that the abuse occurred in a separate bedroom whereas RB says that it occurred in the bathroom. Lastly, RB described being shown pornographic material as part of the offending, which was absent from DB’s account.

99. Somewhat inconsistently, the applicant also submits that the relationship between DB, RB and JP “gives rise to the reasonable possibility that their evidence is the product of contamination or collusion”, which is said to be most starkly demonstrated by the fact that each of them made the same error in relation to timing.

100. In relation to JP, apart from the problem of timing, the applicant submits that his account of events “are devoid of the level of detail that would accompany a truthful account”. For example, in relation to Counts 16, 18 and 19, JP had no recollection of how he came to be in the applicant’s bed. Nor did JP give any account of how the offences came to be committed. In relation to Count 17, there was no evidence that Initial had a depot in the western suburbs of Sydney. In relation to Count 19, JP gave inconsistent evidence concerning the offence to the police and to the court. In his statement to the police, he said that he was naked. When giving evidence in court, he said that he had his pants on. It was also submitted that JP’s unreliability as a witness was evident from the fact that in court he said that he was sexually abused in the Marrickville flat after being given alcohol, whereas he did not mention that to the police. Lastly, the applicant submits that the evidence JP gives of the incident in Long Bay gaol is inherently implausible.

101. Finally in relation to DB, RB and JP, it is said that they had a financial motive to lie, since RB accepted that he had sought financial compensation and although DB and JP denied any knowledge of compensation claims, their denials must be understood in the light of the risk of collusion.

102. The applicant accepts that there is no issue of timing in relation to MC. He relies on only two matters in relation to MC. First, MC initially denied that he had been abused when interviewed by the police at a time when it may be inferred that he enjoyed the support of his mother. Second, MC said that he confronted his father over the telephone in 2001 about the abuse at a time when he (MC) was recovering in hospital.

Three preliminary points

103. Three preliminary points should be made about the applicant’s submissions.

104. First, as I have already said, the main point made by the applicant is that many of the offences could not have occurred because they were said to have been committed at a time when the applicant was in prison. Put like that, the submission mischaracterises the issue. What was alleged in the amended indictment was that the offences were committed at a time when the applicant was not in prison. It was necessary for the prosecution to prove beyond reasonable doubt that the offences were committed at those times. In that sense, time was of the essence. The issue was whether the prosecution discharged that onus in circumstances where each of DB, RB and JP gave evidence that the offences occurred at different times. That turned on whether the trial judge could be satisfied beyond reasonable doubt that each of DB, RB and JP had simply made a mistake about the timing (and their ages). It will be necessary to return to that issue.

105. Second, the applicant submits that the relationship between DB, RB and JP gave rise to the reasonable possibility that their evidence was the product of contamination or collusion. That conclusion is said to be reinforced by the fact that all three of them made the same or similar errors concerning the timing of the offences.

106. While it is correct to say that each of DB, RB and JP gave evidence that offences against them were committed at a time that they could not have been, it is not correct to say that they made the same or similar errors. Each of DB, RB and JP sought to tie the timing of the offences by reference to different events in their lives – a point to which it will be necessary to return. The accounts they gave by reference to their age or the year of school that they were in meant that the offences occurred during different periods. For example, according to DB, he was 11 or 12 when the offences against him occurred, whereas it was found that the offences occurred when he was 15 and 16. RB’s evidence was the first offence against him occurred most likely in 1979, when he was 11, whereas it was found that the offence occurred when he was 12, and later offences when he was 13. JP’s evidence was that the offences were committed against him in 1978, when he was 12, whereas it was found that the offences occurred when he was 14. It was not directly put to JP on the one hand and DB and RB on the other that they had colluded in giving their evidence. DB and RB denied that they had discussed the offences committed against them, and each was found to be a credible witness. As I have explained, a further submission advanced by the applicant was that the evidence given by DB and RB was not credible because it was inconsistent. The differences in their evidence points against any collusion. Accepting that there was a possibility of collusion between DB, RB and JP because of the relationship or connection between them, that possibly either alone or in combination with other facts could not give rise to a reasonable doubt about the applicant’s guilt.

107. Third, the applicant submits that each of DB, RB and JP had a motive to lie because of the possibility of compensation. There is no merit in this submission. There is no evidence that DB and JP ever sought or expected compensation. RB was informed that he was not entitled to compensation.

The case in relation to DB

108. The convictions in relation to DB are said to be unsafe because of the timing issue, the inherent implausibility of the incident involving the budgerigar and DB’s misdescription of the applicant’s flat in Chippendale.

109. It is convenient to take the first and third of these issues together. It is important to bear in mind that the timing of the offences is fixed by reference to where they occurred. It was uncontested that the applicant lived in a small flat in City Road, Chippendale from about late November 1979 until October 1980 and that he lived in a flat in George Street, Marrickville from October 1980. There is no question that DB knew the applicant, having met him at Initial Laundry Services. Mr Smith who appeared for the applicant at trial, opened the defence’s case on the basis that “the accused has not, in terms denied meeting [RB and DB], however, the accused denies seeing either … brother anywhere other than at the Initial Services premises in Artarmon”. There is no dispute that the applicant did not start working at Initial Laundry Services until shortly after he was released from prison in November 1979.

110. There was compelling evidence that DB went to both flats. DB was able to describe where the flats were. His evidence that he went to the flat in Chippendale was corroborated by JM, RB and KLJ (who gave evidence that she visited the flat on one occasion with her boyfriend and saw DB there). DB correctly recalls that KM, who DB thought at the time was the applicant’s son, was living with the applicant at the Chippendale flat. That the applicant would take boys to his flat for the purposes of abusing them was corroborated by the tendency evidence. Leaving the budgerigar incident aside for the moment, DB gave a detailed and credible account of the sexual assaults against him, which again was consistent with the tendency evidence. The only doubt raised concerning whether DB went to both flats was that he misdescribed the flat in Chippendale as having a separate bedroom where he says one of the assaults against him occurred behind a closed door.

111. In my opinion, the misdescription of the flat does not raise a reasonable doubt concerning the offences that were alleged to have occurred there. The events occurred many years ago. It is not surprising that DB could not remember the precise layout of the Chippendale flat or that he has conflated the layout of the two flats. It was RB’s evidence that he was assaulted by the applicant in the bathroom or toilet at the Chippendale flat. More will be said about that evidence shortly. However, it is entirely consistent with DB’s account of Counts 1 and 2 that Count 1 occurred in the main room of the flat and that Count 2 occurred in the bathroom. Given the passage of time, it is unsurprising that DB could not recall or was mistaken about some of the details of Count 2. No issues are raised in relation to DB’s evidence of the other counts, apart from timing.

112. DB was plainly mistaken about when he met the applicant at Initial Laundry Services and when he went to the applicant’s two flats. The question is whether that mistake ought to have raised a reasonable doubt in the trial judge’s mind that DB was also mistaken about whether any of the abuse occurred. In my opinion, it ought not have. The relevant events occurred more than 40 years before DB gave evidence. It is a matter of everyday experience that, with the passage of time, people frequently become confused about when events occurred, even though they retain a recollection of the events themselves. It is unsurprising that DB may have become confused about the timing of events that occurred more than 40 years ago. That sheds little light on the reliability of his memory of the events themselves, particularly when the relevant events involve childhood sexual abuse.

108. The applicant sought to attach some significance to the certainty with which DB believed that the abuse occurred when he was 11 or 12 years old. Reading DB’s evidence as a whole, it is not correct that DB was as certain about the timing of events as the applicant suggests. Although in the passage quoted at para [33] above DB speaks of “[t]he timeframe as a 12 year old boy” and although when giving evidence DB frequently refers to the fact that he was 11 or 12, a fair reading of the passage quoted above indicates that what DB was certain about was that the events occurred, not necessarily their timing. In any event, nothing turns on DB’s certainty about timing in this case. Any certainty that DB had must extend to when DB met the applicant at Initial Laundry Services and when he went to the applicant’s flats. He was wrong about the timing of those matters, but as I have explained there was compelling evidence that the events occurred.

109. In the present case, DB sought to identify the timing of the relevant events by reference to his year in school (he thought the events definitely occurred during his senior years at primary school). He also drew a connection between the abuse he said occurred in the Marrickville flat and his admission to Pallister following his overdose on Valium.

110. The first of these matters is simply an aspect of DB’s faulty memory concerning the timing of the relevant events. DB thought that he met the applicant at Initial Laundry Services and went to the applicant’s flat at Chippendale when he was in his senior years at primary school. That plainly was incorrect. But how old DB was, what year of school he was in and the year DB thought the events occurred are just different aspects of the same error concerning the timing of the relevant events. They are all matters about which DB could easily have been mistaken.

111. It is true that on DB’s case, his primary school was just across the road from Initial Laundry Services’ premises, which explains how DB came to be there before and after school. It is less clear how he came to be there before and after school if, as is the fact, he was attending North Sydney Boys High School at the time. But nothing turns on this point. The evidence is clear that DB did go to Initial Laundry Services premises at least some occasions before and after school while his mother worked there with the applicant. That must have been when DB had moved to North Sydney Boys High School.

112. The evidence in relation to when DB was admitted to Pallister falls into a different category. DB attributes his taking an overdose of Valium and his admission to Pallister to the abuse that was inflicted on him at the Marrickville flat. Plainly, he was wrong. The applicant submits that that error casts doubt not only on the reliability of DB’s evidence of the abuse in the Marrickville flat, but the whole of DB’s evidence concerning the abuse since, on DB’s evidence, the events at the Marrickville flat were the last events in a chain of abusive conduct.

113. In my opinion, DB’s error concerning the circumstances in which he took an overdose of Valium is not sufficient to raise a reasonable doubt concerning any of the offences for which the applicant was found guilty in the circumstances of this case. The evidence is that, quite apart from any sexual abuse DB suffered, he had a difficult an unhappy childhood because of his relationship with his father. That relationship explains why he might have taken an overdose of Valium at an earlier point in time; and it is entirely plausible that with the passage of time DB has come to believe those events were the result of his abuse rather than other events in his life. The only alternative explanation is that DB deliberately chose to attribute his overdose to what was said to be his sexual abuse in order to make his allegations of sexual abuse more plausible. Having regard to the other evidence that supports his evidence that he was sexually abused, the trial judge was entitled to reject that hypothesis.

114. So far as the incident with the budgerigar is concerned, I do not accept that DB’s evidence concerning that incident was inherently implausible. The incident was certainly bizarre. But its bizarre nature makes it unlikely that DB’s evidence concerning it was invented. The evidence that the applicant took sexualised photographs was corroborated by JP and MC. Although it may seem surprising now that anyone could have such a photograph developed without being questioned about it, attitudes were very different in the 1970s. Although KLJ could not recall seeing the photograph, she accepted that DB mentioned the incident to her in about 1994. RB gave inconsistent accounts concerning whether he witnessed the incident or saw the photograph, but that does not affect the reliability of DB’s evidence. DB gave a plausible account of a bizarre incident. His evidence is supported to some extent by the fact that he raised it with his sister well before he went to the police. The fact that DB could remember the incident but his sister could not remember the photograph is not surprising. And the fact that RB gave inconsistent accounts of what he could remember about the incident does not affect the plausibility of DB’s evidence on the subject.

The case in relation to RB

120. So far as the question of timing is concerned, the points made in relation to DB apply equally to RB.

121. RB sought to fix the times at which he was abused by reference to the fact that in relation to Count 10, his recollection was that he gave the note provided by the applicant to his year 5 teacher, Mr Kayto, and in relation to Counts 13, 14 and 15, the offences occurred in the last year he played rugby league for McMahon’s Point, when he was in the under 12s team. However, RB could easily have been mistaken about which teacher he handed the note to and the last year that he played for McMahon’s Point. As with DB, what is clear is that RB met the applicant at the end of 1979 or early 1980 and went to the applicant’s flat at Chippendale at about that time. The mistakes that RB made about timing do not affect the reliability of his evidence concerning whether the events occurred.

122. The applicant challenges the reliability of RB’s evidence in a number of other respects. Two of the matters pointed to by the applicant relate to the reliability of RB’s evidence generally – RB’s evidence in relation to the budgerigar incident and his evidence that he saw the applicant with DB’s penis in the applicant’s mouth on one or two occasions, even though he denied to the police that he had seen the applicant sexually assault anyone else. The trial judge had the advantage of seeing RB, gave detailed consideration to all the evidence and concluded that RB was a reliable witness. Inevitably, with the passage of time some things may be forgotten and then re-remembered because of a particular prompt. There is nothing about the two matters referred to which raise any doubt about the trial judge’s acceptance of RB as a reliable witness in relation to the offences relating to him.

123. RB’s evidence concerning the applicant’s bed in the Marrickville flat falls into the same category, although that evidence was directly connected to the commission of one of the offences (Count 12). It is not implausible that RB had forgotten that the applicant had a waterbed at the Marrickville flat, but when prompted recalled that it was. The fact that he agreed with the cross-examiner when prompted does not establish that he was tailoring his evidence on that point. It does not undermine the evidence RB gave in relation to Count 12.

124. There was nothing implausible about RB’s account of Count 11. The applicant’s submissions confuse the facts relating to Count 11 with evidence RB gave in cross-examination about the first occasion he was abused in the Chippendale flat, in respect of which no charge was laid. The events constituting Count 11 occurred in the flat after the applicant sent KM to the shops. There was nothing implausible about RB’s account of those events that would raise a reasonable doubt concerning the trial judge’s conclusion that the offence was proved.

125. As to the events at Flat Rock Oval, an absence of evidence after more than 40 years establishing a connection between the applicant and the McMahon’s Point rugby league club does not establish that there was no connection between the club and the applicant. Both RB and JP gave evidence that the applicant had some connection with the McMahon’s Point rugby league club. JM could not recall that he did, although she thought she knew all the coaches and managers associated with the club. It was open to the trial judge to accept RB and JP’s evidence on the point. In any event, the only significance of the issue is that it appears to be relevant to Counts 13, 14 and 15 because it explains how the applicant was able to obtain access to one of the sheds at the Flat Rock Oval. Again, there is nothing implausible about RB’s account of the events constituting those counts. It is not implausible that the applicant on occasions would wait for RB to arrive at the oval for training considering the tendency evidence. Although the evidence leaves unexplained how the applicant got access to the shed, it is not implausible that the shed was not locked or that the applicant was able to obtain a key to it. There is nothing else about RB’s description of the events that ought to have raised a reasonable doubt in the trial judge’s mind.

126. Finally, the evidence given by AF does not raise a reasonable doubt that RB was abused by someone other than the applicant. The suggestion must be that there is a reasonable possibility that the events described by RB were committed by someone else, who was murdered by RB and his brother by throwing him over the North Sydney overpass. That suggestion is fanciful. It ignores all the evidence that points to the applicant as the perpetrator. It was not a suggestion put to DB. It is to be expected that there would be clearer evidence that someone was murdered in that way than the records found by DSC Pessotto. The evidence is that at the time RB gave that account to AF he was affected by drugs and had been out on what might be described as a three day binge. It is entirely believable in those circumstances that RB would give an accurate account of his core memory (that he was sexually abused as a child) but fantasise about what happened afterwards.

The case in relation to JP

127. Similar issues of timing are also raised in relation to JP. JP ties the time at which he was abused by the applicant to the time when he played for the McMahon’s Point rugby league team in the under 13s age group. He explained that he joined that team when he went to high school in year 7 in 1978 and that the following year he played for Lane Cove. However, JP gave compelling evidence that he went to the applicant’s flats in Chippendale and Marrickville (he was able to describe roughly where they were and he described the Chippendale flat as “very small”). The only reasonable conclusion to reach from this evidence is that the events described by JP occurred in 1980 and that he was mistaken about when he played for McMahon’s Point and when he moved to Lane Cove. Given the passage of time, that error was entirely understandable and is not a reason for doubting his account of the abuse.

128. None of the other matters referred to by the applicant are capable of raising a reasonable doubt about JP’s evidence.

129. It is not correct to say that JP’s evidence was devoid of a level of detail that would accompany a truthful account, whatever that standard is meant to mean. In relation to Count 16 and Counts 18 and 19, JP explained how he came to be in the applicant’s flat, which was entirely consistent with the evidence given by DB and RB of the pattern followed by the applicant (which was to take boys back to his flat after an outing) and with the other tendency evidence. He explained where the flat was and gave a description of it which was plausible. He also gave a clear description of the abuse. The fact that JP could not recall some of the details, and in particular, how he came to be sleeping in the applicant’s bed, is explained by the passage of time. As N Adams J (with whom Beech-Jones CJ at CL and Lonergan J agreed) explained in Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177 at [166] it is to be expected that with the passage of time “details surrounding the events would become vaguer than the circumstances of the actual acts themselves”.

130. In relation to Count 19, JP was confused about whether he did or did not have his pants on when the events relating to that account occurred. But that is another example of JP not being able to remember what was in essence part of the surrounding circumstances of the offence. Whether JP had his pants on or not was irrelevant to the nature of the offence and the fact that JP had an unreliable memory concerning that matter did not raise a reasonable doubt concerning his evidence about the offence itself.

131. The point the applicant makes in relation to JP’s evidence of what happened in the flat at Marrickville falls into the same category. That evidence, of course, is not the subject of a charge. Any inconsistency in the evidence JP gave could only be relevant to his general reliability as a witness. But particularly having regard to the passage of time, the fact that JP may have given an unreliable account of events that were not the subject of a charge cannot raise a reasonable doubt concerning his recollection of other events when the trial judge accepted him as an honest witness and the evidence he gave of events that were the subject of charges was plausible.

132. In relation to Count 17, the applicant submits that a reasonable doubt is raised in relation to that count because JP gave evidence that the offence occurred after the complainant completed his rounds and returned to the depot, which JP thought was in Campbelltown or Chullora. The fact that JP gave evidence that Initial Laundry Services had a depot in Campbelltown or Chullora does not raise a reasonable doubt concerning this offence. As the trial judge observed, the essential features of the offence, and JP’s evidence, were that the offending occurred in the applicant’s van when the applicant parked his van in some proximity to bushland after doing his rounds. That was entirely consistent with other evidence at trial. There was no evidence that Initial Laundry Services did not have a depot in Campbelltown or Chullora. The evidence suggested that it had more than one depot. It was JM’s evidence that the depot at Artarmon only dealt with clean towels. JP could easily have mistaken a customer’s depot as one belonging to Initial Laundry Services. And as the Crown submits, the fact that JP could not remember the precise location of the depot is consistent with the limited understanding of Sydney’s geography that might be expected of a 13 or 14 year old in or about 1980.

133. The applicant submits that JP’s account of encountering the applicant at Long Bay gaol is inherently implausible. Why that is so and what its significance is is unclear. The only plausible alternative to the evidence being true is that JP made the evidence up to add credibility to his evidence that the applicant was known to him (and engaged in the conduct that JP said that he did). But that alternative makes no sense. There was compelling evidence that JP knew the applicant because he gave compelling evidence that he had been to the applicant’s flats in Chippendale and Marrickville and gave accounts of the offences that were entirely plausible. Having seen JP give evidence, the trial judge accepted JP as an honest witness. It is not suggested that the encounter could not have taken place because the applicant and JP were never at Long Bay gaol at the same time. In my opinion, the trial judge was correct to accept JP’s evidence on this issue.

The case in relation to MC

134. The applicant points to only two matters which are said to make the verdicts in relation to the counts against MC unsafe. The first is the delay in MC reporting the offences. The second is the implausibility of MC’s evidence that MC confronted the applicant over the telephone.

135. As to the first point, delay and reluctance in reporting childhood sexual abuse is a common feature of offences of that type. Recognition of that fact is contained in s 294 of the Criminal Procedure Act 1986 (NSW), which requires the judge to give a direction to the jury in such cases that “delay in complaining does not necessarily indicate that the allegation that the offence was committed is false” and that “there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault”. The trial judge gave himself such a direction in this case.

136. MC gave the following explanation for why he originally denied the offending:

“At that time, I – my father had made me feel safe, thinking it was good to be doing what he was doing to me. So I felt like I needed to defend him by lying to my mother.”

That explanation is entirely plausible. MC’s initial denial of the offences provides no reason for doubting his evidence.

137. As to the second point, the Crown accepts that MC must have been mistaken about the timing of the telephone call because the applicant was in custody when MC says the call occurred. However, little turns on the point. MC does not suggest that the applicant made admissions during the call. MC’s evidence is that the applicant denied the offending. The telephone call did not form part of the context in which the offences were said to have taken place. According to MC, it occurred approximately 15 years later. Consequently, the fact that MC may have been mistaken about the call or the circumstances in which it occurred could not raise a reasonable doubt concerning his evidence about the offences themselves.

Conclusion

138. Having regard to the issue relating to timing, it is appropriate to give leave to appeal. However, for the reasons I have given, it was open upon the whole of the evidence for the trial judge to be satisfied beyond reasonable doubt that the accused was guilty of each of the offences for which he was convicted.

139. Accordingly, the orders of the Court should be:

1. Leave to appeal granted.

2. Appeal dismissed.

140. FAGAN J: I have made an independent assessment of the whole of the evidence at trial, as required in an appeal such as this where an unreasonable verdict ground is advanced. Ball JA has identified each of the discrepancies and inconsistencies in the evidence that the applicant relies upon to argue that the verdicts cannot be supported. I concur in his Honour's analysis of why the learned trial judge was not bound to have a reasonable doubt about the applicant's guilt on any of the counts. I agree with Ball JA as to the basis upon which it was open to the learned judge to resolve each of the impugned features of the evidence in a manner that led to acceptance, beyond reasonable doubt, of the complainants' testimony as to the essential elements of each count that was found proved. I therefore agree with the orders that his Honour has proposed.

141. SWEENEY J: I have had the considerable benefit of reading in draft the judgment of Ball JA. I am grateful to his Honour for his account of the evidence in the trial and his analysis of the evidence in light of the applicant’s submissions.

142. I have made my own independent assessment of the evidence. I am satisfied that the complainants were not mistaken about the applicant’s conduct with them, and that they did not fabricate their accounts of such. They were mistaken about when the conduct occurred. That does not cause me to have a doubt about their evidence or to consider that the trial judge should have had such a doubt.

143. The evidence of the complainants was supported by the compelling and extensive evidence of the applicant’s tendency to engage in sexual acts with young boys.

140. I am satisfied it was open to the trial judge, on the whole of the evidence, to be satisfied beyond reasonable doubt of the applicant’s guilt.

141. I agree with the orders proposed by Ball JA.

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Decision last updated: 13 August 2025