Madden v The The King

[2022] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Madden v R [2022] NSWCCA 196

Hearing dates:

10 June 2022

Date of orders:

9 September 2022

Decision date:

09 September 2022

Before:

Ward P at [1]; Hulme J at [481]; Bellew J at [483]

Decision:

1.   Extend the time for the filing of the notice of appeal to 8 November 2021.

2.   Leave to appeal be granted.

3.   Appeal allowed.

4.   Quash the convictions on each of counts 1-3, 20-24 and 51-53; and substitute on those counts verdicts of acquittal.

5.   Quash the convictions on the remaining counts and remit the matter to the District Court for retrial; and list the matter before the District Court on 23 September 2022.

Catchwords:

CRIME — Appeals — Appeal against conviction — Incompetence of counsel – Miscarriage of justice – Unreasonable verdict – Whether evidence established that the offences occurred within the date range alleged by the Crown – Whether jury must have entertained a doubt where evidence was elicited only after witness was shown his prior statement following a grant of leave under s 38 – Whether evidence on particular grounds was incapable of being reconciled – Whether evidence was insufficiently particular

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HA, 66C(1), 78, 78K, 78L, 78Q, 78T, Sch 11

Criminal Legislation (Amendment) Act 1992 (NSW), Sch 1, s 78

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), s 78, Sch 1, Pt 35

Criminal Procedure Act 1986 (NSW), ss 16(1)(g), 159(1)

Evidence Act 1995 (NSW), ss 32, 38, 97, 98, 101, 165B

Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

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

Cases Cited:

Ali v R (2005) 79 ALJR 662; [2005] HCA 8

Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

Davis v R [2017] NSWCCA 257

Doro v Victorian Railways Commissioners [1960] VR 84

Doyle v R [2014] NSWCCA 4

Groundstroem v R [2013] NSWCCA 237

Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42

Hughes v R (2017) 263 CLR 338; [2017] HCA 20

KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165

KRM v R (2001) 206 CLR 221; [2001] HCA 11

La Rocca v R [2021] NSWCCA 116

Libke v R (2007) 239 CLR 599; [2007] HCA 30

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

McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52

MFA v R (2002) 213 CLR 606; [2002] HCA 53

Murdoch (a pseudonym) v R (2013) 40 VR 451; [2013] VSCA 272

Nudd v (2006) 80 ALJR 614; [2006] HCA 9

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

Pfennig v R (1995) 182 CLR 461; [1995] HCA 7

R v AM (unreported, 2 April 1998, Gleeson CJ, Smart and Dowd JJ)

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

R v Birks (1990) 19 NSWLR 677

R v Dean [1932] NZLR 753

R v Dossi (1918) 13 Cr App Rep 158

R v MJR [2002] NSWCCA 129

R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81

R v Pfitzner (1976) 15 SASR 171

RD (a pseudonym) v R [2021] NSWCCA 94

Roach v R [2019] NSWCCA 160

Rodway v R (1990) 169 CLR 515; [1990] HCA 19

S v R (1989) 168 CLR 266; [1989] HCA 66

Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136

Saraswati v R (1991) 172 CLR 1; [1991] HCA 21

Siganto v R (1998) 194 CLR 656; [1998] HCA 74

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

Stephens v R [2021] NSWCCA 152

TKWJ v R (2002) 212 CLR 127; [2002] HCA 46

Tully v R (2006) 230 CLR 234; [2006] HCA 56

Versi v R [2013] NSWCCA 206

Wade v R [2018] VSCA 304

Xerri v R [2021] NSWCCA 268

Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1

Texts Cited:

Attorney-General’s second reading speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (6 June 2018)

New legislation to strengthen child sexual abuse laws, NSW Government Factsheet (June 2018)

S Odgers, Uniform Evidence Law (2021, 16th ed, Thomson Reuters)

Category:

Principal judgment

Parties:

Patrick Vincent Madden (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Howell (Applicant)
C Curtis (Respondent)

Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/354965; 2018/95743

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Jurisdiction

Date of Decision:

22 November 2019

Before:

Acting Judge Williams

File Number(s):

2017/00354965; 2018/00095743

HEADNOTE

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

On 3 July 2019, following a trial by jury in the District Court, the applicant, Mr Patrick Madden, was found guilty and convicted on 54 counts relating to historic sexual offences against three complainants (each then an adolescent) in the late 1980s and early 1990s, contrary to ss 66C(1), 61J(1), 61M(1), 78K, 78L,78Q(1), 78Q(2) of the Crimes Act 1900 (NSW) (Crimes Act).

The appeal raised four issues:

1. whether the prosecution of counts 20, 23-24 and 43-45 was statute-barred pursuant to ss 78 and 78T of the Crimes Act (now repealed);

2. whether the verdicts of guilty on counts 1-3, 8, 10, 12, 20-22, 35-38, 44, 46-47 and 51-57 were not supported by the evidence and were unreasonable;

3. whether a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address to the jury, which conflated tendency and coincidence reasoning, or by the trial judge’s directions with respect to tendency reasoning; and

4. whether a miscarriage of justice was occasioned by the incompetence of the applicant’s trial counsel.

Ward P (with whom R A Hulme and Bellew JJ agreed) held:

As to issue 1:

Each of the presumption against retrospectivity of a penal statute and the principle of fairness is subject to the legislative intention of Parliament. When the legislature manifests an intention that a statute operate retrospectively, effect will be given to that intention: [267].

The Crown concedes that the repeal of s 78T (which provided a limitation period of twelve months in respect of the prosecution for an offence contrary to s 78K) was not made retrospective by the amending legislation and the prosecution of counts 20, 23 and 24 was statute-barred on this basis. The convictions on counts 20, 23 and 24 should be quashed: [245]; [273].

With respect to the repeal of s 78 (which similarly provided a limitation period of twelve months in respect of the prosecution of an offence contrary to s 66C(1)), the language employed in the amending legislation makes clear the retrospective legislative intent of the new provision and unambiguously displaces the presumption. Accordingly, the offences the subject of counts 43-45 are not statute-barred by reason of the fact that prosecution of those offences occurred outside of the time limit imposed by s 78: [270]-[273].

Rodway v R (1990) 169 CLR 515; [1990] HCA 19; Siganto v R (1998) 194 CLR 656; [1998] HCA 74; R v MJR [2002] NSWCCA 129; Xerri v R [2021] NSWCCA 268; Doro v Victorian Railways Commissioners [1960] VR 84 referred to.

As to issue 2:

Time was made an essential ingredient in respect of counts 1-3 as a result of the way in which the Crown conducted the trial. The evidence does not exclude a reasonable doubt that the offending happened in 1986, outside the dates averred on the indictment with respect to counts 1-3, and accordingly the verdict on each of those counts is unreasonable: [301]; [312].

R v Dossi (1918) 13 Cr App R 158; R v Dean [1932] NZLR 753; R v Pfitzner (1976) 15 SASR 171 referred to.

With respect to counts 8, 10, 12, 38, 44 and 54-57, any inconsistency in the each of the complainants’ answers was ultimately a credibility issue for the jury to determine. In those circumstances, the verdicts of guilty for those counts are not unreasonable: [320]-[325]; [330]; [377]-[379]; [386]; [412]-[414].

With respect to counts 34-37 and 46-47, the language used by the complainant was sufficiently particularised that it was open to the jury to find these counts made out beyond a reasonable doubt: [364]-[366]; [373].

With respect to counts 20-22 and 51-53, the difficulty in reconciling the evidence of two complainants as to particular incidents is acute and both versions cannot be correct but the jury convicted on both the counts in relation to the incidents. In those circumstances, the jury ought to have had a reasonable doubt as to when the incidents occurred and thus the applicant’s guilt in relation to these counts: [350]-[351]; [400].

M v R (1994) 181 CLR 487; [1994] HCA 63; MFA v R (2002) 213 CLR 606; [2002] HCA 53; SKA v R (2011) 243 CLR 400; (2011) HCA 13; Libke v R (2007) 230 CLR 559; [2007] HCA 30; Pell v R (2020) 268 CLR 123; [2020] HCA 12; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; RD (a pseudonym) v R [2021] NSWCCA 94; R v AM (unreported, 2 April 1998, Gleeson CJ, Smart and Dowd JJ); Wade v R [2018] VSCA 304; KRM v R (2001) 206 CLR 221; [2001] HCA 11 referred to.

As to issue 3:

What was said by the Crown was an acceptable mode of tendency reasoning available to the jury; that is, if it was accepted that the applicant had the tendency alleged, that may make it more likely that the applicant did the things alleged in respect of each complainant and each count. The trial judge also gave particular emphasis to the requirement that the jury be convinced beyond a reasonable doubt of the conduct alleged: [450].

Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42; Hughes ; Bauer ; KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165; Doyle v R [2014] NSWCCA 4 referred to.

As to issue 4:

The perfunctory nature of the cross-examination of the complainants coupled with the equally inadequate closing address by the applicant’s trial counsel take this matter outside the ordinary running of a trial. Notwithstanding that a rational forensic decision may have been made by counsel, there is no apparent rational basis for failing to highlight to the jury the inconsistencies in the evidence. The defence counsel’s failure was so incompetent that the applicant was deprived of the opportunity to have a fair trial: [477]-[478].

R v Birks (1990) 19 NSWLR 677; Nudd v (2006) 80 ALJR 614; [2006] HCA 9; TKWJ v R (2002) 212 CLR 127; [2002] HCA 46 at 149-150; Ali v R (2005) 79 ALJR 662; [2005] HCA 8 referred to.

As to the appropriate relief:

Ultimately, the Court held that the appropriate relief was that the applicant’s convictions on counts 1-3, 20-24 and 51-53 should be quashed and verdicts of acquittal entered. The Court held that, on the remaining counts on which the applicant was convicted, the convictions should be quashed and remitted for a re-trial.

Judgment

1. WARD P: On 3 July 2019, the applicant, Patrick Vincent Madden, was convicted, following a jury trial before Acting Judge Williams SC and a jury of twelve, of a large number of counts (54 in total) relating to historic sexual offences against three complainants (each then an adolescent) in the late 1980s and early 1990s. The applicant had been charged with 59 counts and pleaded not guilty to all of those counts. Apart from alternative counts (counts 26, 31 and 33), one count (count 41) which was the subject of a directed verdict of not guilty and another count (count 40) on which the jury found the applicant not guilty, the applicant was convicted on all counts (i.e., counts 1 to 25, 27 to 30, 32, 34 to 39 and 42 to 59).

2. The trial commenced on 25 June 2019. The Crown case was presented over three days. Cross-examination of the complainants was brief (as I explain in due course). The applicant then gave evidence in his defence. Both Counsel addressed the jury on the same day that the applicant’s evidence was taken, and the trial judge commenced summing-up that same afternoon. The following morning, after his Honour concluded his directions, the jury commenced deliberations and, as noted above, the jury delivered its verdict on 3 July 2019.

3. On 22 November 2019, the applicant was sentenced to an aggregate term of imprisonment for 15 years commencing 24 June 2019 and expiring 23 June 2034 with a non-parole period of 10 years expiring 23 June 2029.

4. By Notice of Appeal filed on 8 November 2021, the applicant seeks leave to appeal his convictions on five grounds (as set out below). There is no application for leave to appeal against sentence. The grounds of appeal are as follows:

• Ground 1: The prosecution of counts 20, 23, 24, 43, 44 and 45 was statute-barred pursuant to ss 78 and 78T of the Crimes Act 1900 (NSW) (Crimes Act) (now repealed).

• Ground 2:   The verdicts of guilty on counts 1, 2, 3, 8, 10, 12, 20, 21, 22, 34, 35, 36, 37, 38, 44, 46, 47, 51, 52, 53, 54, 55, 56 and 57, were not supported by the evidence and are unreasonable.

• Ground 3:   A miscarriage of justice was occasioned by the Crown Prosecutor’s closing address to the jury which conflated tendency and coincidence reasoning.

• Ground 4:   The trial judge erred in his directions on tendency reasoning.

• Ground 5:   A miscarriage of justice was occasioned by the incompetence of the applicant’s trial counsel.

5. Ground 1 raises a question of law alone (for which leave is not necessary); and the Crown concedes Ground 1 as far as counts 20, 23 and 24 are concerned. It is accepted by the applicant that grounds 2 to 5 raise questions of mixed fact and law and therefore leave to appeal on those grounds is required. Further, the operation of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) must be considered in relation to Grounds 3 and 4.

Counts

6. As noted above, there were three complainants. They will be referred to by the pseudonyms adopted in submissions (RA, MA and DN). RA and MA are brothers; RA being just over three years older than MA. DN is not related to the two brothers (and indeed only met MA through the applicant). DN is around six years and eight months younger than RA and two years younger than MA. The respective counts as against each of the complainants were as follows.

7. Counts 1 to 15 (relating to RA) concerned four incidents referred to at the trial as incidents R1 to R4.

8. Counts 16 to 24 (relating to MA) concerned five incidents referred to as incidents M1 to M5.

9. Counts 25 to 59 (relating to DN) concerned 14 incidents referred to as incidents D1 to D14. (One of these incidents (D7) involved another adolescent, BW.)

10. There was some cross-over or overlap in the alleged offending, in that the incident referred to as M4 (counts 20 to 22) was an incident in a national park when both MA and DN were said to be present; and incidents D12 (counts 51 to 53) and D13 (counts 54 to 57) were two further incidents (at Bass Point in Shellharbour and at the applicant’s then home at Bangor, respectively) when, again, both MA and DN were said to be present. As will be seen, the Crown concedes that the evidence of MA and DN in relation to certain of the incidents (in particular, the incidents referred to as incidents M4 and D12) was not readily reconcilable.

Background

11. As noted above, RA (who was born in late December 1972 – a fact relevant when considering the conviction on counts 1 to 3 – see Ground 2) and MA (who was born in March 1976) are brothers. In 1982, they moved with their parents and three brothers to a house in Sunbury Street, Sutherland (T 179.19). When RA was eight, the boys’ mother left the family home with one of their siblings, leaving the four remaining boys to be raised by their father (T 33-34; T 180.1-12).

12. At some point after the parents of RA and MA separated (and prior to 1988 when their father remarried), the applicant and his family moved into a house in Sutherland, a couple of doors from that of RA and MA. (The timing of this is of some significance for counts 1 to 3 – see Ground 2.) The evidence of RA’s and MA’s father was that, as at the date of his second marriage (in 1988), he guessed that the applicant’s family had been in the street for “a couple of years” (T 180.37). That would place the applicant’s arrival in Sutherland as being around 1986.

13. The applicant’s son, who gave evidence, estimated that the family moved into the Sunbury Street property in 1985 or 1986, when he was 10, 11 or 12 (T 168.38-41).

14. Roads and Maritime Services (RMS) records, however, showed that the applicant’s registered address was the Sutherland address from 10 April 1987 until 24 March 1991 (Ex I).

15. RA and MA became friends with the applicant’s children, in particular with his son, Paul (T 33-34).

16. The third complainant (DN) was born in November 1978 in the Albury area. The applicant was a family friend from Albury whom, prior to 1991, DN saw once or twice a year (T 92.46-48). When the applicant and his family moved away from Albury, DN’s family kept in touch with them (T 183.34-39).

17. After DN’s father died in January 1991, DN moved with his mother and brother to Dapto (T 183.45-49). At that time, the applicant and his family were living in Kurrajong Street in Sutherland (T 183.41-43). RMS records show that the applicant’s registered address was in Kurrajong Street, Sutherland from 25 March 1991 until 5 November 1992 (Ex I).

18. DN’s mother gave evidence that her family would see a lot of the applicant’s family and that the applicant would take DN out fishing and camping. DN’s mother could not remember a specific time when DN went to stay with the applicant’s family by himself but said that it could have well happened as she felt he was “in safe hands” there (T 184.22-27).

19. The applicant subsequently moved to a house in Bangor.

Opening Address

20. During opening address, the Crown Prosecutor outlined the Crown’s tendency case as follows (T 4.19-43):

Now, a key part of the Crown case in this trial will be its reliance on what’s called tendency evidence.

The Crown is going to seek to establish to you in this trial that Mr Madden, the accused, had a tendency to do the following things. It’ll be a matter for you whether you’re satisfied that this tendency has been proved in the trial. First, that the accused was sexually attracted to males between the ages of 12 and 18, who I’ll just refer to as a young male for this opening outline.

That he would befriend a young male who had a connection to his family. That he’d then invite this young male on to his boat to go fishing. That he would then provide the young male on the fishing boat with alcohol and or cannabis. He would then act on this sexual attraction he had to young males by engaging in a sexual act with the young male on the boat after providing them with alcohol and cannabis.

Subsequently, so after this initial incident on the fishing boat, he would then continue to put himself in situations where he was alone with that young male that he’d taken out fishing and he’d then continue to act on this sexual attraction to that young male by engaging in further sexual acts or inciting this young male to commit sexual acts on another young male in his presence. That’s what the Crown says as sort of the whole for all of these 59 charges. That’s a tendency, the way that Mr Madden acted, and that’s what we’re seeking to prove in this trial.

Evidence

21. As Ground 2 raises an unreasonable or unsupportable verdict ground in respect of a large number (though not all) of the counts, it is necessary to consider in some detail the evidence adduced in relation to each of the counts which are the subject of that ground of appeal.

Offences alleged by RA (counts 1 to 15)

22. RA was the first witness in the Crown case.

23. RA’s evidence was that when he was “probably thirteen, about thirteen, fourteen”, the applicant’s son told RA that his father grew marijuana. As RA turned 13 in December 1985 and 15 in December 1987, this places the event which led to the first incident (R1), on RA’s account as occurring some time between December 1985 and 1987. RA said he could not remember what year of school he was in when this occurred, but said it was “probably year 7 or year 8” (T 35.10). A register of admissions for Jannali Boys High School obtained by police in the course of their investigation of RA’s allegations, recorded RA as having transferred from Engadine High School to Jannali Boys High School in year 9 in February 1987 (T 195.07). The applicant notes that there was no evidence that RA repeated any year of his schooling. Thus, if RA was in year 7 or year 8 at the relevant time, this would place the event in 1985 or 1986 (not 1987).

22. RA said that, two or three days later, he went into the applicant’s backyard and stole some marijuana plants. RA said that a few days after he stole the plants, he was walking on Sunbury Street and was approached by the applicant in a blue and white Range Rover. A vehicle matching this make and general description was first registered to the applicant on 27 November 1985 (T 202.14). RA said that the applicant approached him and told him that “I know you stole me plants, just watch out”. RA said the applicant “put a lot of fear into me … because I was only thirteen and I was very small”.

23. RA said that about a week later, the applicant “just pulled up in his car one day and he said, ‘If you smoke dope you can come in my boat with me sometimes and we’ll have a smoke’ or ‘If you smoke dope, I’ve got some work on my boat. You can come and do some work’” (T 35). RA said that he said “Okay, okay. I’ll just pack the gear”, and the applicant said “Okay. All right”; and RA said that he was happy but he was “very nervous and in fear” (T 36). Asked what he did as a result of that conversation, RA said:

A.   I was just messing about I’m not sure how long after that occasion he told me when of how it was. But I went on his boat. Yes. Yeah.

26. RA’s evidence was that when he first started to go out on the boat he was “thirteen, fourteen” (which again places the event as being some time between December 1985 and December 1987).

27. An RMS registration document tendered by the Crown recorded that a ten metre fibreglass work vessel named Myuna was registered to the applicant from 29 September 1987 until 22 October 1990 (Ex K; T 204.45). However, there was evidence that the applicant and his family previously owned “a cruiser-type boat … steel” around the time that they were living in Sunbury Street, and that this boat was kept at Taren Point (T 169.17-23).

28. RA said that, after that, he began to spend time at the applicant’s house; and that he would go over to the applicant’s house and work on his boat in the garage under the house while smoking cannabis with him (T 36.21-25). RA said that when he did this he was alone with the applicant. RA said that the applicant would also give him alcohol (T 37.17-25) and that he and the applicant became “friends” (T 39.41). RA said that he started going over there “quite a lot” and was “smoking dope all the time” (T 39.42).

29. RA referred to the applicant’s “34-foot cruiser” that “at one stage … was being fixed at some boat yard in the Taren Point area” and said that, once fixed, this boat was put into the water at Gymea Bay (see T 39.46). RA said that they (he and the applicant) used to go out on the applicant’s boat and go fishing (T 39.49).

30. Asked whether he recalled “the first time” that he was asked by the applicant to go fishing, RA said (T 40.1-4):

I think it was the very first time I met him. Like, not the first time I met him. When I was at his place and went on a boat, yeah.

31. RA said that he went fishing with the applicant both on the water in a boat and on the shore (T 40.6).

Counts 1, 2 and 3 (Incident R1)

32. The first of the unreasonable verdict appeals relates to counts 1 to 3, which relate to the first time that RA went fishing from the shore with the applicant (T 40). RA said that this was the first time that anything sexual happened between them (T 42.34-36). RA said that he was “about 14” at the time (T 42.41-43). The particulars on the indictment place this incident as occurring some time between 1 February 1987 and 13 March 1988.

Count 1: homosexual intercourse with male over 10 and under 18 (s 78K)

33. RA said that the first time he went fishing with the applicant was “down [at] Bonnet Bay … fishing off the land … down in the carpark of Bonnet Bay” (T 40.15-16). RA said that he and the applicant went to Bonnet Bay in the applicant’s car (T 40.27); that the applicant gave him marijuana and two or three beers, which he consumed (T 40.43-41.2); that they had fishing rods in the water (T 40.40); and that at some point the applicant took his pants off and the applicant “leaned forward and started sucking me off”, meaning “with his mouth”, “a head job”, “oral” (T 41.6-37). RA said that this lasted about five minutes and that he (RA) ejaculated (T 41.45). Asked whether he could remember how old he was “at that stage that this was happening”, RA thought he was “about 14” (T 42.41-43).

Count 2: homosexual intercourse with male over 10 and under 18 (s 78K)

34. RA said that after he ejaculated the applicant then said something like “okay you want to do me now” or “your turn” and put his hand on his (RA’s) head. RA then “leant forward and starting to give him head” (T 41.48-42.8).

Count 3: commit act of gross indecency with male under 18 (s 78Q(1))

35. RA said that after two or three minutes sucking the applicant’s penis, RA stopped and then masturbated the applicant with his hand until the applicant ejaculated (T 42.25-32).

Context evidence

36. RA gave evidence that, after this first incident (R1) occurred, there were more incidents of a sexual nature, saying that it was “the same process on and on. With his boat, on water, at his place, in the car” (T 43.8-9).

37. RA said that the sexual contact began before he left school. RA left school in year 9 (T 43.15), which was in 1987 (T 195.15-17). As already noted, RA turned 15 in December 1987. After leaving school, RA started work at a panel shop in Caringbah. When he lost that job, the applicant got him a job at “Cane’s Smash Repairs” in Alexandria (T 43.25-27). By reference to Group Certificates, RA said that he was working at the smash repairers from July to October 1988 (T 43.39-40). RA said that, while he was working there, he continued to smoke marijuana with the applicant in his garage and go out on the boat with him and have sex, saying that it was “the exact same process. I go up there in his garage, I smoke dope… We might go on the boat. Smoke dope, have sex again” (T 43.42-47).

Counts 4, 5, 6, 7, 8, 9 and 10 (Incident R2)

38. RA said that there were many incidents on the applicant’s boat (T 43-44). Counts 4 to 10 relate to a particular incident on the boat during which RA said the applicant inserted a candle into RA’s anus (T 44.25-29). RA’s account of this incident was that he was with the applicant on a boat on the water near Gymea Bay; the applicant supplied him with alcohol and marijuana; the applicant fellated him, and then, after a couple of minutes, inserted a candle into his anus for a minute or two and fellated him again; following which RA fellated the applicant and masturbated him until he ejaculated (see T 43-47).

39. It should be noted that there is no unreasonable verdict challenge to the convictions on counts 4, 5, 6, 7 or 9.

Count 4: homosexual intercourse with male over 10 and under 18 (s 78K)

40. Count 4 relates to RA’s evidence that he and the applicant were in the cabin of the boat, consuming beers and cannabis (T 44.44-45.5) and the applicant started to give RA “oral” (T 45.26-30).

Count 5: sexual intercourse with child over 10 and under 16 (s 66C(1))

41. Count 5 relates to RA’s evidence that the count 4 incident only went for a couple of minutes when the applicant took a “long, round, very thin” candle, put lubricant on it and inserted it into RA’s anus (T 45.26-46.20).

Count 6: homosexual intercourse with male over 10 and under 18 (s 78K)

42. Count 6 is that, while he had the candle in RA’s anus, the applicant performed fellatio on RA (T 46.22-27).

Count 7: homosexual intercourse with male over 10 and under 18 (s 78K)

43. Count 7 is that RA then performed fellatio on the applicant (T 46.32-33).

Count 9: commit act of gross indecency with male under 18 (s 78Q(1))

44. Count 9 relates to RA’s evidence that the applicant “always” ejaculated after RA masturbated him (T 46.44-47.2).

Counts 8; 10

45. On RA’s first account of the R2 incident, he gave no evidence as to the acts that comprised counts 8 or 10. Count 8 alleged an attempt by the applicant, during the R2 incident, at anal penetration of RA. The applicant notes that the Crown Prosecutor had opened to the jury on the basis that it was during R2, on a boat at Gymea Bay, that the applicant had attempted to penetrate RA’s anus with his penis. Count 10 related to a third act by the applicant of fellatio (following the alleged attempted anal intercourse) to the point that RA ejaculated. The applicant points out that this is the way in which count 10 was particularised by the Crown Prosecutor during his opening address (T 9.4-7). It is noted that RA said that, by the time of the R2 incident, he “had been with [the applicant] about 20, 30, 40 times” (T 46.41).

46. During questions in chief about the R2 incident, the Crown Prosecutor asked RA whether sexual acts with the applicant ever progressed past “sucking off”. RA’s evidence in response to this was (at T 44.15-19):

A.I think once he tried anal and it - it wouldn’t - it just wasn’t there.

Q.   So I might ask you about that incident where he tried anal. Do you recall where you were at the time?

A.   I think I was in his room in his house.

[Emphasis as per applicant’s submissions]

47. The Crown explains that where the complainants did not come up to proof in relation to a count on the indictment (as was here the case with RA in relation to counts 8 and 10), the Crown Prosecutor sought leave under s 38 of the Evidence Act 1995 (NSW) (Evidence Act) to cross-examine the complainant in question, on the basis of a prior inconsistent statement (in each case that being a prior police statement that the complainant had made; albeit not a contemporaneous police statement). That was what here occurred in relation to counts 8 and 10. The Crown Prosecutor sought leave pursuant to s 38 to cross-examine RA on the basis that RA had made a prior inconsistent statement about those matters in his statement to police made in 2007 (see at T 53.5-54.48).

48. It is noted by the Crown that this course was not resisted by the defence, although defence counsel indicated a preference for RA’s memory to be refreshed by him being shown his statement (T 54.11-13). The Crown Prosecutor had disavowed reliance on s 32 of the Evidence Act because the relevant statement was not contemporaneous (T 54.26). The trial judge indicated that this was how the cross-examination should be approached (T 54.40-48).

49. Accordingly, where leave was granted to cross-examine a witness about a prior inconsistent statement (as was the case here in relation to RA), the witness was shown his statement and asked if that refreshed his memory; and the Crown says that the witness then gave evidence orally of the counts that had been omitted in the initial telling of each incident. (The Crown relies on this in resisting the complaint the applicant makes as to the evidence obtained in this manner – see the Ground 2 complaints.)

50. In relation to RA, the leave granted was to cross-examine RA about the contents of a statement he had made to police between 13 August and 31 October 2007. The Crown Prosecutor directed his attention to what he had said in that statement about “the incident with the candle” (i.e., the R2 incident) (T 55.7-56.42). When RA was shown that statement and asked if it ‘refreshed’ his memory as to whether anything else of a sexual nature happened on that occasion, his first response was that:

A.   No, I don’t think it will be refreshed.

51. RA was then asked whether that ‘helped’ his memory as to whether anything else of a sexual nature happened on that occasion and he said:

A.   No, just what’s written there just brings back memories, yes.

52. Pausing here, insofar as the applicant places emphasis on the seeming inconsistency between the above two responses, those answers may readily be explicable if RA was unfamiliar with the concept of memory being refreshed rather than helped; and this would be a matter on which the jury’s perception of the evidence as it fell from the witness would be an important advantage over an appellate court simply reviewing the words of the transcript.

53. RA then gave the evidence relied upon by the Crown on counts 8 and 10 (see below). As adverted to above, the fact that RA’s evidence about these counts was elicited in cross-examination following a grant of leave under s 38 of the Evidence Act (T 53-54) is relevant to the complaint that those verdicts were unreasonable (see Ground 2).

Count 8: attempt homosexual intercourse with male over 10 and under 18 (s 78L(10))

54. After being shown his police statement, RA gave the following evidence (T 56.1-25):

Q.   Now, what you’ve read has brought back memories. Are you able to tell the jury – you’ve told us about the candle incident and the oral intercourse on that day – can you tell us about anything else that occurred on that day?

A.   Well, it was on this occasion where he tried – he come – I was on the side and he lift my leg up and I got – I said, “What are you doing?” and he goes, “That’s all right if I move on it,” and he tried to insert the anus and I was all tense as what happened and then he put – he put my leg on his shoulder or something and tried again. I said, “No way, man, you can’t,” and then I was just lying there fearing – I think I gave him a head job and then I – and as usual I just pulled him off to finish it and he blew but it did happen, yeah.

Q.   When you said you were saying, “No, no, no,” what was Mr Madden doing at that stage?

A.   He was trying to put his penis in my anus, yeah.

Q.   At any stage did his penis touch the outside of your anus?

A.   Yes, yes.

Q.   You said you tensed?

A.   Yes.

Q.   What do you mean by that? What were you doing?

A.   Like doing – doing – don’t happen. I was still in pain and like, yeah, having had him to force that, yeah.

Count 10: homosexual intercourse with male over 10 and under 18 (s 78K)

55. Following on from the above evidence, there was the following (at T 56.27-41):

Q.   Does it assist you if [as I read it this is a reference to whether RA’s memory was assisted by the police statement that he had just read] after you pulled him off until he ejaculated did anything else occur after that on this occasion?

A.   I’ve – I’ve crossed it out of my head and finished it and he’s been up the yard as always. It happened like that usually, yeah.

Q.   When you say that, on this occasion did you then ejaculate yourself after that?

A.   He – he did orally with me, yeah.

Q.   When you say he did orally with you, who was performing the oral intercourse?

A.   Well, he give me a - a oral head job, yeah.

Q.   Was that after you had masturbated him?

A.   Yes.

[Emphasis as per the applicant’s submissions – see Ground 2]

Counts 11 and 12 (Incident R3)

56. Counts 11 and 12 related to a sexual encounter in a room in the applicant’s Sutherland house (the R3 incident). RA was directed to his earlier reference (see as to R2, [46] above) to “an incident that you recall occurring at [the applicant’s home]” and his evidence at T 47.26-49.6 was relied upon for these counts.

57. There is no unreasonable verdict challenge to the conviction on count 11.

Count 11: homosexual intercourse with male over 10 and under 18

58. At T 48.1-10, RA gave the following evidence:

A.   We both took our pants off, something, he give me oral, I gave him a little bit more and to finish it off I was always pulling.

Q.   So he gave you oral intercourse.

A.   Yes.

Q.   Then what occurred?

A.   I done – I gave him a bit more oral back and I pulled him off.

59. The act of RA giving the applicant “oral” (T 48.2) was not the subject of a charge. Count 11 related to the applicant performing fellatio on RA.

60. RA then described an attempt at penile/anal intercourse (T 48.22-25) that was also not the subject of a charge (count 12 being a charge that RA had inserted his penis into the applicant’s anus, not that the applicant had tried anally to penetrate RA in this incident) (see from T 48.12):

Q.   And you told us before that there was an occasion in the house where there was an attempt at anal. Is that right?

A.   Yes.

Q.   Now, who made the attempt?

A.   Peter Madden attempted me.

Q.   Did you ever engage in anal intercourse with Mr Madden?

A.   I don’t think so, no.

Q.   What do you recall happening in relation to that attempt on that day?

A.   He put some lube on his penis and tried to - he tried to turn me over so I was on the side. And he tried to push it in. I was just - no way. No, no, no just - yeah, it would have hurt too much. I just pushed him away.

Q.   In all these occasions you can recall there was no incident where Mr Madden ever successfully had anal intercourse with you?

A.   No, no, no. Yes.

Q.   And in relation to the reverse position, you having anal intercourse with Mr Madden, do you have any recollection of that?

A.   No, no.

Q.   Was that the only time anything ever happened inside this bedroom that you can recall?

A.   No, there’s a fair few more times, yeah. The lounge room, the bedroom.

Q.   And was it generally when people weren’t home?

A.   Yes.

Q.   Now in relation to this incident in the house you’ve just told us about. Do you remember how old you were? Was it after you left school?

A.   Both. One when I was at school and one after I left school.

Q.   Just in relation to the one you’ve told us about, the time in the bedroom where you were taken upstairs--

A.   Yes.

Q.    --and he attempted anal intercourse. Do you remember when that was as far as whether you’d left school or not?

A.   I think - I think I was out of school then. I think, yes, I would have been.

Q.   Do you remember where you were working?

A.   I think I was working either at Carringbah [sic], my first job, or at Cunningham Smash, Alexandria.

[Emphasis as per the applicant’s submissions]

61. The applicant emphasises that this further evidence elicited by the Crown Prosecutor (of a different occasion in the applicant’s home during which the applicant attempted anally to penetrate RA) was not a charged act.

Count 12: homosexual intercourse with male over 10 and under 18 (s 78K)

62. The evidence in relation to count 12 was elicited in cross-examination following the grant of leave under s 38 of the Evidence Act. The Crown Prosecutor directed RA’s attention to what he had said in his police statement about the “incident at the house where you’re taken upstairs” (from T 57.05):

Q.   Now, having read that, does that assist your memory of whether anything else of a sexual nature happened on that day in the house?

A.   Yes, well, inserted his anus when he put my penis in his anus and then it went for a couple of minutes.

Q.   Now, can you just put the statement to one side. Having read it, what can you tell us about you having put your penis in his anus?

A.   He put some lube on his penis – on my – on my penis and he got his hand like putting in his arse and he’s on his hands and knees and put it in like that.

Q.   You’ve just reached with your right hand behind your back.

A.   He did – he did – he did, yeah, on his knees he reached behind and – and put my penis in his arse.

Q.   Mr Madden was using his hand on your penis?

A.   Yes, and yeah.

Q.   And did you then engage in anal intercourse?

A.   Yes, he put – he put my penis in his arse – arse.

Q.   And what did you do?

A.   I honestly – I just pulled out. I just, yeah.

Q.   Do you recall whether you ejaculated during that occasion?

A.   I don’t think so. I’m not sure. I think so, yeah.

Q.   Now, in relation to that, you earlier told us you didn’t recall ever having anal intercourse-

A.   No.

Q.   –with Mr Madden.

A.   No.

Q.   Having read the statement, is that a memory you now have in Court?

A.   It is, yeah, yeah, yeah, yeah.

Q.   Do you recall whether that was the only time that occurred?

A.   Yes, but I’m pretty sure I haven’t had – didn’t have oral – yeah, that rings a bell.

63. This evidence then formed the basis for count 12. As noted, as to the timing of the R3 incident, RA said that he had left school by then and was either working at his first job or at the smash repairers in Alexandria (T 49.5-6).

Counts 13, 14 and 15 (Incident R4)

64. RA said that another place where there was sexual contact with the applicant was in bushland in Menai. Counts 13 to 15 related to when he said he and the applicant drove in the applicant’s Range Rover to a “bush spot” where they smoked marijuana and engaged in the “usual” conduct of reciprocal fellatio and RA masturbating the applicant (T 49.8-50.11). RA said that there were plenty of occasions like this. On the occasion that was the R4 incident, RA said that they were parked in a “bush spot” and were getting ready to smoke dope when they saw a police car up ahead. RA said that they waited and the police car drove off.

64. There is no unreasonable verdict challenge to the conviction on counts 13 to 15.

Count 13: homosexual intercourse with male over 10 and under 18 (s 78K)

66. RA’s evidence was that they smoked cannabis “and then him gave oral to me and I gave oral to him and I pulled him off. The usual”. Count 13 was the performance by the applicant of oral sex on RA until he ejaculated (T 49.39-50.1).

Count 14: homosexual intercourse with male over 10 and under 18 (s 78K)

67. Count 14 was the performance by RA of fellatio on the applicant (T 50.3-4).

Count 15: commit act of gross indecency with male under 18 (s78Q(1))

68. Count 15 was RA then masturbating the applicant until he ejaculated (T 50.6-7).

Additional context evidence from RA

69. RA said that from the time he left school up until he moved to Kempsey in 1988 or 1989, the sexual contact continued “almost weekly” (T 50.21). He said he then “moved back and it started up again” (T 50.31). In late 1989 or early 1990, RA broke into the applicant’s home and stole property. RA said that he was “angry” with the applicant and wanted “revenge”. By that stage, he was a heavy drug user.

Complaint by RA

70. RA told no one about the abuse until after he was in a serious car accident in October 1991. RA suffered a brain injury in the accident. RA said he saw the applicant one further time in 1992 when he was a patient at Lidcombe Hospital being treated in relation to the effects of the car accident. RA said the pair “had one beer [and] smoked some dope” (T 51.34).

71. RA said that, following a lengthy period of rehabilitation, he “felt a bit more freer to tell the truth” and he told his father (T 51.19-22). RA said that he “would have told” his brother MA at some stage too but had no specific memory of having done so (T 51.44-45). RA said that a year or two after that, MA told him about what had happened to him (MA) (T 52.5-6).

72. In 2007, RA went to the police and made a statement but he said that they took no action (T 51.40; T 194.1-17).

Cross-examination

73. RA was cross-examined (briefly) at T 60.50-65.16.

Applicant’s case

74. The applicant’s case in respect of counts 1 to 15 (as put to RA) was that the applicant did not smoke marijuana with RA in the garage of his home and that the incidents RA described did not happen.

Offences alleged by MA (counts 16 to 24)

75. MA, RA’s younger brother, was the second witness in the Crown case. MA said that when he was “maybe 1 or 2”, his mother left and (like RA) he stayed with his father. MA said that when he was “probably … in about year 4” his father remarried (as noted above, his father remarried in 1988 and thought that the applicant and his family had by then been living in Sunbury Street for a couple of years) (T 180.27-37).

76. MA said he thought that “it was a bit after my stepmother come but a shortly - not far after” that he became aware that the applicant was living nearby. MA remembered his brother RA going to the applicant’s home when he (MA) was in primary school. MA said RA “would have been in high school” at the time; that RA was “hanging out with Paul, they’d go out in the fishing boat”; and that RA “smoked pot” with the applicant in his downstairs garage.

77. MA said that “over time” he was invited to outings with the applicant as well, “[w]hether they be family outings, wife, his daughter and several of them, fishing” (at first, with the applicant’s family – T 69.26-32). MA also got involved in cleaning the boat and “doing a little bit of work”. MA said that he started helping and going out on the boat at the “end of year 6 and start of year 7 was probably when it was most times” (T 69.36). MA said that, normally, when he went out on the boat, the applicant’s family was also there. MA said that he started smoking cannabis as well; at first that he and the applicant’s son would smoke cannabis behind the applicant’s back but that “eventually it became to the point where we could smoke with him” (T 70.13-17). MA said that this started when he was “in year 7 [which would have been 1989 when he was 13] … Not so much in year 6”. There was evidence that MA completed his year 10 school certificate in 1992 (T 194.23-49).

78. MA’s evidence is that he would do work on the applicant’s boat which was moored at Yowie Bay; and that it was “a normal thing” for cannabis to feature on these outings. MA said that there would also be beer, which the applicant would purchase from a bottle shop at the boat ramp (T 70.39-45). MA’s impression of the applicant was that he was “a cool dad” (T 71.10).

Count 16 (Incident M1)

79. There is no unreasonable verdict challenge to the conviction on count 16.

Count 16: homosexual intercourse with male over 10 and under 18 (s 78K)

80. MA gave evidence (at T 71.14-31) that the relationship with the applicant changed in the holiday period between year 6 and High School (1988/1989 – see T 194.23-49); the change in the relationship being the incident referred to as M1. Asked as to the timing of the incident, MA said (from T 71.23):

Q.   First I’ll ask you, do you remember how old you were or what year at school you were in?

A.   It was - it would have been before I went to high school somewhere in the year - like, the break between year 6 and high school, somewhere in that holiday period, I couldn’t say before or after Christmas, the actual - that date is sort of a little long ago.

Q.   But you think it was prior to actually starting high school year.

A.   Yes. Yes, it was in that, yeah, that holiday period.

81. MA’s evidence (T 71.17-21) was that:

A.   I was on his boat and we had had - I think we were doing working that day but we were fishing, it was in the night, had some beers, had some dope, and then I woke up on the bunks downstairs of the bed and he was sucking my penis and--

82. MA said that he was shocked; that he did not know what to make of it; and that he froze (T 72.23-34).

83. In the course of the trial, the Crown was granted leave to amend the indictment in relation to count 16 so that the date range alleged in count 16 extended to between 1 December 1988 and 6 March 1990 (see T 210-211; 213-214; 249).

Counts 17 and 18 (Incident M2)

84. MA was asked by the Crown Prosecutor (from T 73.25):

Q.   Was there any other occasions where something of a sexual nature happened?

A.   Yeah, there was. Yeah.

Q.   At any point was there another incident involving being on the boat with Mr Madden?

A.   Yeah, there was X amount of weeks later. Yeah. The same thing, the sucking of the penis and.

Q.   I’ll ask you about that. This next time that it occurred on the boat, do you remember period of time, had you started school by then or was it still the holidays?

A.   No, I - I - school by then, I think, yeah. Yeah. Yeah, I would have been at school by then. Yeah.

85. MA’s account of this second event was the basis of the Crown case in respect of the incident M2, counts 17 and 18. Again, there is no unreasonable verdict challenge to the convictions on counts 17-18.

Count 17: homosexual intercourse with male over 10 and under 18 (s 78K)

86. MA’s evidence was that, some weeks later, after school had started, the same thing (as in count 16) happened again; there was alcohol and cannabis (“the standard”) (T 73.46) and MA woke up to find the applicant giving him oral sex, which continued until he ejaculated (T 74.1-13). His evidence was (from T 73.40):

Q.   How was it that you came to be on the boat on this occasion?

A.   It would have been a similar thing that - that was offered, night fish, “Yeah, yeah. No worries,” guessing Paul and someone would be there, but I guessed wrong on that one. I - I didn’t - yeah, I didn’t know, I just.

Q.   Was there alcohol or cannabis on this occasion?

A.   Yeah. The - the standard.

Q.   You’ve told us about this first incident where you woke up to something occurring. What happened on this second time?

A.   I was - yeah, I’ve woke up and I knew something was not right.

Q.   What happened?

A.   Yeah, it was a similar thing. I - yeah. I--

Q.   In relation to what Mr Madden did to you, can you tell us what was occurring?

A.   The oral sexual again.

Q.   That was him giving oral sex to you on this occasion.

A.   Yeah.

Q.   Do you remember on this occasion whether you ejaculated?

A.   I think I did, yeah. Yeah, I think. Yeah.

Q.   After he had given oral sex to you, what then happened?

A.   Back to him, me.

Q.   Did he say anything?

A.   No, I’d have - no, I can’t quite remember, sorry, I’m just having a little bit of a blank. Sorry.

87. Count 17 was the performance by the applicant of oral sex on MA on this occasion.

Count 18: homosexual intercourse with male over 10 and under 18 (s 78K)

88. Count 18 was the performance by MA of fellatio on the applicant (T 74; T 87).

89. MA also thought that there was some anal sex (this was not the subject of a charge) (from T 74.22):

Q.   In relation to this particular incident on the boat after you’d ejaculated, was there any other sexual acts that occurred?

A.   Yeah. They would - they followed from then on, yes.

Q.   Perhaps that was [the] question. On this particular occasion on the boat--

A.   Mm.

Q.    --so on that day, was there another sexual act that occurred after he had given you oral sex and you ejaculated?

A.    Me to him and I think there was actually anal sex, I think.

Q.    So perhaps I’ll ask you about, when you say, “Me to him,” what do you mean by that?

A.    Me giving him anal sex, I think.

Q.   Do you remember what was said in relation to you doing something to Mr Madden?

A.    No. I don’t at the moment. No. Sorry. I just – yeah.

90. The applicant notes that the Crown case in respect of the incident M2 was not that the applicant engaged in anal intercourse with MA on that occasion. The Crown opened its case to the jury in respect of counts 17 and 18 as follows (from T 13.13):

So he again goes out on the accused’s boat alone after being invited to go fishing. He’ll tell, “Well, look, I did it because Mr Madden was giving me cannabis and I thought that was a good way to get cannabis from him.” So we go to count 17 and 18 for incident M2.

On the top deck of the boat Mr Madden grabs [MA’s] penis on the outside of his clothes until [MA] was erect, led him down to the lower level of the boat where the earlier incident happened, and then put [MA’s] penis in his mouth and performed oral sex until [MA] ejaculated. That’s count 17.

Count 18, after that Mr Madden asked [MA] to suck his penis. And after that, with some guidance from Mr Madden, [MA] performed oral sex on Mr Madden until the accused ejaculated. That’s count 18.

91. The applicant notes that the Crown was granted leave to cross-examine MA pursuant to s 38 of the Evidence Act as to the contents of a police statement dated 19 April 2017 and MA gave further evidence as follows (T 86.44-87.32):

Q.   But paragraph 14 is the second incident that you’ve told us about today. So I just wanted you to have a read of that paragraph to yourself and let me know when you have.

A.   Yeah. That - yeah. Because yeah, we - when you’ve got the second incident, it does ring a bit more of a bell that--

Q.   So first, I’ll just ask you, you’ve read that?

A.   Yes. Yeah.

Q.   And when you gave evidence, you told the jury that on this occasion, Mr Madden performed oral sex on you?

A.   Yes.

Q.   And you gave evidence that something other sexual may have happened, but you weren’t sure.

A.   Yep.

Q.   Having read your police statement, does that refresh your memory as to what occurred?

A.   Yeah, it does. Yeah. Yeah.

Q.   And what was that?

A.   That it was, yeah, oral sex, and he ejaculated in the mouth, I think. That yeah.

Q.   When you say he ejaculated--

A.   No, yeah, yeah, I did in his, sorry.

Q.   So first, I’ll ask you, you’ve read that? If you can just put it to one side.

A.   Yep.

Q.   On this second occasion, there was again oral sex, Mr Madden to you?

A.   Yes.

Q.   Do you recall if he ejaculated on that occasion?

A.   Yeah. Yeah, I do. Yeah.

Q.   And were there any other sexual acts on that time, that you can recall?

A.   No, I can’t. No.

92. The applicant says that, in contrast to the Crown’s earlier cross-examination of RA in respect of counts 8, 10 and 12, the further questions of MA in respect of count 18 built upon MA’s earlier answer that, during the M2 incident, he (MA) had given oral sex “back to him” (the applicant) (see at [86] above).

93. MA’s evidence was that in this period of time, when MA started year 7, sexual contact with the applicant was weekly, in multiple different locations (“house, parks, car. … Just anywhere. Anywhere possible. Bushes at national parks” – see T 74.46-48). MA’s evidence was that the frequency of these encounters “eased off” towards the end of “year 8 or year 9ish sort of thing when I become more self aware” (T 75.5-9). The applicant says that, on the Crown case, this meant that the allegations concerning the applicant’s conduct towards MA focused on the period between when he was in year 8 and year 9 (1990 and 1991).

94. MA’s evidence was that on every occasion of sexual contact, he smoked cannabis beforehand (T 75.11-13).

Count 19 (Incident M3)

95. Incident M3 concerns an incident after the applicant moved to a house on a different street in Sutherland, slightly further away from MA’s house (Kurrajong Street). RMS records show that the applicant’s registered address was this place (Kurrajong Street) from 25 March 1991 until 5 November 1992 (Ex 1).

96. MA said that he would still visit the applicant there but it was not the same as before (“it wasn’t as much hanging out… By that stage our thing had become hidden…. we were going to keep this in the low down” (T 76.1-7). Count 19 related to an incident that was said to have occurred at the Kurrajong Street house.

97. There is no unreasonable verdict challenge to the conviction on count 19.

Count 19: homosexual intercourse with male over 10 and under 18 (s 78K)

98. MA said that during year 8, there was an occasion when he stayed at the Kurrajong Street house one night. MA could not remember why he stayed overnight but thought it might have been because he had been to a concert with the applicant’s son. MA went to sleep in the spare bedroom and awoke to the applicant performing oral sex on him, which continued for some minutes until he ejaculated (T 76.9-77.29). MA remembers being worried about how close they were to the applicant’s children (T 76.24-28).

Counts 20, 21 and 22 (Incident M4) (Incident involving DN)

99. The first of the incidents concerning MA in respect of which the applicant seeks to bring an unreasonable verdict challenge is the M4 incident.

100. Incident M4 relates to an occasion (when MA said he was around “year 8, year 9-ish, around there”) when the applicant introduced him to a boy younger than him (who the Crown identified, and there seems to be no dispute as to this, as DN) (T 77.31-50). MA said that on this occasion, he and the applicant picked up this boy (DN) at Wollongong and drove in the applicant’s car to the Royal National Park (T 78.1-8).

101. MA said that it was dark when the applicant pulled into “a little dirt bay where people parked to do bushwalks” (T 78.4-8). MA’s evidence was that the applicant got a rug out of the car and they went into the scrub. MA said that they must have smoked cannabis as there was “always smoking first” (T 78.15-17). Count 20 relates to the applicant making MA insert his penis into the applicant’s anus (T 78.32-40) and count 21 relates to the applicant guiding MA to insert his penis into DN’s anus after which MA ejaculated (T 79.11-40).

Count 20: homosexual intercourse with male over 10 and under 18 (s 78K)

102. MA said that the applicant laid the blanket down and then made MA give the applicant anal sex (T 78.33). The Crown concedes that this count was statute-barred – see below; and the conviction on this count should be quashed. The applicant also raised an unreasonable verdict challenge to his conviction on this count.

Count 21: incite male under 18 to commit act of gross indecency (s 78Q(2))

103. MA said that the applicant then gestured for MA to have anal sex with DN and so MA did that until, he thinks, he ejaculated (T 79.13-37). There is an unreasonable verdict challenge to the conviction on count 21.

Count 22: commit act of gross indecency upon male under 18 (s 78Q(1))

104. When MA first recounted the M4 incident, his evidence was that the act that was charge as count 21 was the end of the episode (from T 79.39):

Q.   What happened after that?

A.   I packed up, went home.

Q.   After ejaculating in [DN], was there any more sexual contact with Mr Madden?

A.   Not on that - no, I think that was about it by then. He had had his bit and [DN] had his bit and - no, that was coming to a - it came to an end after that, I think. Yeah, come to an end.

105. In particular, the applicant emphasises that MA gave no evidence in respect of count 22 (that being the allegation that, during this incident, the applicant inserted his finger into MA’s anus). It is noted that the Crown Prosecutor opened to the jury on count 22 as follows (T 15.3-9):

Finally, count 22, this is a gross indecency by a male, that being it’s not an incite. This is one that the accused is involved in because after [MA] ejaculated, when having anal sex with [DN], the accused then inserted a finger into [MA] anus and it caused him pain and he screamed. And that was the end of this sexual encounter.

106. MA’s evidence in relation to count 22 was elicited by means of cross-examination by the Crown Prosecutor following a grant of leave under s 38 of the Evidence Act (his Honour ruling that this be conducted in the same fashion as for RA, by seeking to refresh the witness’s memory with his statement – see T 85.19). After being shown his police statement dated 19 April 2017, MA gave evidence that, after he had anal sex with DN, the applicant put a finger in MA’s anus (T 88.15). (The fact that this evidence was elicited in this manner is again a matter raised under Ground 2.)

107. The evidence given by MA in relation to count 22 under cross-examination (T 87.37-88.27) was:

Q.   And I’ll just ask you to assume that this is when you talk about the first time you went and met [DN].

A.   Yes. Yeah, it would be.

Q.   If you can look just at the last few sentences of paragraph 17 and have a read to yourself and let me know when you have.

A.   Yeah, that’s from, I think, when I made this statement as well, I said that that’s what happened.

Q.   You’ve read that.

A.   Yeah.

Q.   If you can just put that to one side. You told the jury that you were in a position where you had anal intercourse with [DN].

A.   Yes.

Q.   Do you remember if after that act there was anything further as far as sexual--

A.   Pat [the applicant] trying to do the same to me.

Q.   Then what happened?

A.   I sort of let a bit of a noise out and brought it to a halt.

Q.   What did Mr Madden do?

A.   Stopped once I made the noise and it was - yeah.

Q.   Perhaps I’ll rephrase it. What did he do that made you think he was trying to--

A.   Put a finger in my anus.

Q.   What did you feel when he put a finger in our [sic; your] anus?

A.   Pain.

Q.   What did you do?

A.   Screamed and yell - or yelled, sort of, just a - a noise.

Q.   Did that bring--

A.   Yeah.

Q.   --the incident to a close?

A.   It was enough just to bring it to a halt.

Second incident with DN on MA’s evidence (uncharged for MA; corroboration of DN counts 51 to 53 on the Crown case)

108. MA gave evidence that he met DN again a year or two after the (above) first incident with DN. MA remembers picking DN up in the Wollongong area in the applicant’s car (T 79.48) “between a year and two” after the first meeting (T 80.6). MA said the applicant’s vehicle was a Commodore at the time (T 80.49).

109. There was evidence that the applicant first registered a Commodore on 19 June 1992 and that he had made a report to police on 22 November 1993 about his car having been damaged that day while parked at the Bushrangers Bay car park at Bass Point in Shellharbour (T 200.48-201.19). The police report records that the applicant reported that his car had been broken into between 9.45am and 10.30am that day. The indictment for counts 51 to 53 specified this date as the date of the offending conduct.

108. MA’s evidence was that there was cannabis “as usual”, and they went into the bush. MA said that on this second occasion the applicant “basically sets up camp and it was oral sex day” but that the three were disturbed when someone “came along”. MA said that there was “a bit of a … panic”, and they went back to the applicant’s car (T 80.27-34) and that when they returned to the applicant’s car, he saw that it had been damaged (“a window had been broken - like someone had maybe attempted to steal something out of there”) (T 80.44-49).

109. MA said that he only ever met DN on those two occasions (T 81.1); and MA remembers giving oral sex to both the applicant and DN on that occasion.

110. No charge in respect of MA was brought in respect of this second occasion

Counts 23 and 24 (Incident M5)

113. MA said that the sexual contact occurred “much less” once he was in year 9 (1991 – see T 194). MA said that he would generally try to meet the applicant only when he really needed “pot” (T 81.15). There was an occasion when the applicant was working as a security guard at a real estate agency at the Bangor Tavern shops when MA arranged to meet him there to get cannabis (T 81.25-38). This incident gave rise to counts 23 and 24. The Crown accepts that counts 23 and 24 were statute barred.

Count 23: homosexual intercourse with male over 10 and under 18 (s 78K)

114. MA said that when he was in year 9 he went to see the applicant at a real estate agency in Bangor where the applicant was working as a security guard; that the applicant took him to a “tea room out the back of the offices” where there was anal sexual intercourse (“me to him”) and oral sex (T 82.1-39). Count 23 related to MA performing fellatio on the applicant on this occasion.

Count 24: homosexual intercourse with male over 10 and under 18 (s 78K)

115. MA said that he (MA) then put his penis in the applicant’s anus (T 82.11-13), which is count 24. MA thinks the applicant might have tried to do the same to him but said that it did not go “down too well” and so the applicant stopped (T 82.11-15) (this attempt not being the subject of a charge).

Complaint by MA

116. MA left school in 1992 and started an apprenticeship. MA said that the sexual contact with the applicant stopped when he left school at the end of year 10, which was the end of 1992 (T 86.09-12).

117. MA said that he never disclosed what was going on to anyone at the time as he was known as “a tougher guy” at school and he had to “keep my persona up – or whatever – I’ve always played the tough guy” (T 83.1-3). However, after RA told him of his allegations, MA said that “the penny dropped why [RA] also hung around Pat”. This led to MA telling RA his own story and then, eventually, he went to the police. MA first went to the police in 2016 but he said that they sent him away as they said there was no evidence (T 83.33-38).

118. MA’s wife gave evidence that MA first made a complaint to her in 2006 or early 2007 (T 157.39); and that MA mentioned he had been abused when he was younger and raised an allegation of sexual abuse on a fishing boat (T 157.34-158.16).

Cross-examination of MA

119. The cross-examination of MA comprised the following six questions (T 88.33-89.2):

Q.   [MA], I want to suggest to you that there never was an occasion that Mr Madden shared cannabis with you.

A.   I disagree.

Q.   There was never an occasion that he bought you beers.

A.   I disagree totally.

Q.   Or made you drink the beer.

A.   I never said “made me drink the beers”, I said he supplied the beers. I never said that he forced me to drink the beer.

Q.    There was never an occasion that he had sex with you.

A.   Yeah, I disagree with that.

Q.   Or had sex with you with--

A.   I disagree.

Q.   Sorry, let me finish the question. Or had sex with you in the presence of [DN], [or] any boy.

A.   I totally disagree.

Offences alleged by DN: Counts 25 to 59

120. DN was the third witness in the Crown case (and the complainant for the majority of the counts). Growing up (and prior to 1991), DN said that he saw the applicant once or twice a year.

Count 25, alternative 26 (Incident D1)

121. DN said that, shortly after the death of his father (which was in January 1991), possibly in the Easter holidays that year, his mother arranged for him to go and stay with the applicant’s family at the Kurrajong Street house (T 94.3-95.40; Ex C). DN was 12 years old at the time (T 98.8-9) and had not had marijuana or alcohol before.

122. DN’s evidence is that after being at the Kurrajong Street house for a night, the applicant arranged to take DN out fishing on his boat at Yowie Bay. DN said that the applicant got home from work and drove DN to the marina where the boat was moored, stopping at a bottle shop along the way to buy “Strongbow” for DN. DN had never drunk alcohol before (T 96.26-34).

123. While on the boat, the applicant gave DN alcohol and cannabis, which he had not had before, and it was not long before he was feeling ill (T 97.38-45). The applicant told him to go and lie down on the bunk. When DN went to get into the bed, he noticed it had been made in “a weird way” and the applicant told him that that was how they used to do it in the navy. DN lay down and believes he must have passed out (T 98.34).

Count 25, alt count 26: aggravated sexual assault (s 61J), alt sexual intercourse with child under 16 (s 66C)

124. DN’s evidence is that some time during the night he woke up and the applicant’s hands were on his penis. DN asked “what are you doing?”. The applicant then began to give him oral sex. DN said he was in shock and was hysterical, crying out “stop. Stop. My dad wouldn’t want you to do this. Please stop” and “my dad will kill you for this when he finds out”. DN was crying and tried to push him away with his hands but the applicant “kept on doing it” (T 98.33-46). The applicant responded that “Your dad wouldn’t mind. Your dad would want this sort of thing” (T 98.43-45). The applicant kept going until DN ejaculated and then asked him “does that feel good?” (T 99.13).

125. There is no unreasonable verdict challenge to the convictions on count 25 or the alternative count 26.

Count 27 (Incident D2)

126. The next time that DN saw the applicant was at a family friend’s 18^th or 21^st “or something along them lines” in Albury (T 99.38). It was about “a month or two” after the previous incident (T 100.13).

127. DN’s account of the incident was that: the applicant was in Albury with his family and arranged to take DN fishing; the applicant picked up DN from where he was staying and drove him to the Hume Weir to go fishing (T 99-100); they drove around for a bit, until the applicant said that they were in a good spot for fishing and parked the car; the applicant got a tartan picnic blanket out of the car and said to DN “why don’t you come and lie down here for a minute”; and DN lay down and the applicant put his hands on DN’s penis. DN says he said “it’s this game again” and the applicant replied “this is our … secret fishing game…and you can’t tell anyone about it” (T 100.43-101.6).

Count 27: sexual intercourse with child over 10 and under 16 (s 66C)

128. Count 27 relates to the conduct on this occasion, namely that the applicant played with DN’s penis and then performed fellatio on DN until he ejaculated (T 101.3-6). DN said that the applicant then asked him, as DN said he always did, “did that feel good?”. DN said he told him that he did not want to play that game and just wanted to go fishing.

129. There is no unreasonable verdict challenge to the conviction on count 27.

Counts 28 to 33 (Incident D3)

130. DN’s evidence was that he thought the next time that he saw the applicant was on a weekend (T 101.49) not long after the Albury incident and he was still aged 12 (T 102.7-8). DN said that he went fishing with the applicant on his boat again; that they went to “pump the yabbies”; and did some fishing. DN said that there was “Strongbow” and cannabis (T 102.21-24).

131. There is no unreasonable verdict challenge to the convictions on counts 28 to 33.

Count 29: sexual intercourse with child over 10 and under 16 (s 66C(1))

132. Count 29 relates to an incident after DN became sleepy and went into the cabin area of the boat (T 102.32-103.9). DN said that the applicant put his hands on DN’s penis and then performed fellatio on DN until he ejaculated (T 102.45-103.21).

Count 28: aggravated indecent assault (s 61M(1))

133. Count 28 is that the applicant then took his own pants off and placed DN’s hand on the applicant’s penis (T 103.24-25).

Count 30, alt count 31: aggravated sexual assault (s 61J), alt sexual intercourse with child over 10 and under 16 (s 66C(1))

134. Count 30 (alternatively 31) relates to DN’s evidence that the applicant then brought his penis up towards DN’s mouth and “tried to get me to perform oral sex on him”. DN said that the applicant’s penis went into his mouth, causing him to gag and making him want to throw up (T 103.50-104.20). DN said that the applicant’s penis was in his mouth for 10 to 20 seconds. DN said that he said “I don’t want to do that” and “please don’t make me do that”.

Count 32, alt count 33: aggravated sexual assault (s 61J), alt sexual intercourse with child over 10 and under 16 (s 66C(1))

135. DN says that the applicant then rolled DN onto his stomach and “hopped in between my legs from behind … and just proceeded to push his penis into my anus” which DN said caused “the most excruciating pain I’ve ever felt in my life”. DN was crying and saying “please stop”, “please get off me”, “my dad will kill you” but he said the applicant “just kept on going” for about ten minutes until it appeared that he ejaculated (T 104.22-44). DN said that the applicant used lubricant that he kept in a film canister (T 104.50-105.5). DN’s evidence is that the next day, DN noticed that he was bleeding from his anus (T 105.27-32).

136. Pausing here, I note that DN’s father had died in January 1991. Therefore if the incident occurred in the following Easter holidays then it is not clear why the reference to “my dad will kill you” would have been made.

Counts 34 and 35 (Incident D4)

137. DN said that during 1991, his family changed addresses several times but remained in the Dapto area. DN said that his mother would frequently send him to visit the applicant’s family and, on those occasions, there would always be sexual contact, “whether it be fishing or whether it would be, you know, In the, in the house when no one was home or whether we would go for a drive somewhere” (T 106.9-14). DN said that one of the places they would go was the Audley National Park (T 106.24); and that another place was at Bushrangers Point (T 107.6), where they would go fishing from the shore. According to DN, the applicant would pull out the same picnic blanket he had used in Albury (see incident D2 above), perform oral sex on DN, and then try to get DN to do the same to him (T 107.11-23).

138. There is an unreasonable verdict challenge to the convictions on counts 34 to 35.

Count 34: sexual intercourse with child over 10 and under 16 (s 66C(1); count 35: sexual intercourse with child over 10 and under 16 (s 66C(1))

139. Counts 34 and 35 relate to the evidence that DN gave as to the “the first time” that he “went to this park and the picnic blanket was produced” (T 107.25-39). DN said that it was at Albury that the picnic blanket was produced “originally at that spot: and then on the next occasion when he saw the blanket in the national park was “within the next four to six months maybe, somewhere around there” after Albury incident (T 107.37-43). DN gave the following evidence about the incident (T 108.1-23):

Q.    After he laid the blanket down, what happened?

A.    He had me lie down on the blanket then started playing with my penis through my pants and then, you know, his hand would soon be down my pants and taking my pants off. I remember I wouldn’t do anything. He would be the one that would instigate and take my pants off for me, because I’d just lie there I guess and want it to be over and done with quicker. Once again he would, you know, play with my penis, put my penis in his mouth [This is count 34: sexual intercourse with child over 10 and under 16, s 66C(1)], make me ejaculate, you know, try to get me to do the oral sex on him [this is uncharged] and have me, you know, touch his by placing my hand onto him and he would, you know, have me roll over and have anal sex with me from behind [this is count 35: sexual intercourse with child over 10 and under 16, s 66C(1)].

Q.    So on this occasion was there the lubricant and the canister?

A.    Yeah. He always seemed to produce the canister. He’d always have it in his pocket and then, you know, it was always – I clearly remember the sound of that canister opening and closing.

Q.    By this point – so this time on the picnic blanket in the park – were there words being said or was it just actions?

A.    Words during, do you mean? Yeah, he’d always ask me, you know, “Does that feel good? Do you like that?” and I just wouldn’t answer it. I would be quite - you know, I think I even remember on numerous occasions he was, like, “Why don’t you say anything? Why don’t you talk?” and I was just like, “Mm, mm.”

140. The applicant contends that this account was insufficiently particular to found a charge, which contention forms part of Ground 2 (unreasonable verdicts).

141. The Crown notes that later in his evidence DN confirmed that this incident was the second time he saw the applicant produce that picnic blanket (the first time being in Albury) (T 117.39-50).

142. The applicant notes that the Crown Prosecutor opened to the jury in respect of this incident (D4) as follows (T 19.9-22):

Incident D4 is an incident, the Royal National Park, and it’s counts 34 and 35. In late 1991, Mr Madden drove himself and [DN] in the blue Range Rover to an unsealed road in the Royal National Park. They went fishing for a short time, before packing up and walking back to the car. He got a - Mr Madden got out a tartan picnic blanket, spread it on the ground, they sat on the rug.

Count 34, sexual intercourse; the accused pulled down [DN’s] pants and put [DN’s] penis inside his mouth, performed oral sex until [DN] ejaculated. Count 35; sexual intercourse. Mr Madden then tried to put his penis in [DN’s] mouth, before shifting and putting the penis inside [DN’s] anus. He had anal sex with [DN] until he ejaculated. So again that’s counts 34 and 35, the incident in the Royal National Park that [DN] will tell you about.

Counts 36 and 37 (Incident D5)

143. DN gave evidence that another place that the applicant used to take him to in his car was to Woronora bridge (T 108.25-49).

144. Counts 36 and 37 relate to “the first time” that the applicant took DN there (T 108.37-43). (A complaint made in Ground 2 is that the evidence that DN gave about counts 36 and 37 was insufficiently particular to sustain the verdicts.)

145. The evidence of DN about the D5 incident is as follows (T 108.25-110.16):

Q.   Were there any other locations apart from the national park that you would go in the car with Mr Madden?

A.   In the Sydney area there was, you know, there was numerous spots where - you know, another one comes to mind, Woronora before the overpass was put in when you used to have to drive down the bottom. There was a spot down there, you know.

Q.   Perhaps just for those that aren’t familiar with the area, what was there and where would you park?

A.   At the Woronora are you talking about.

Q.   Yes.

A.   So he would drive down to where the river was and you cross the old version before the overpass was there, and you’d drive across. So on both sides of the road there was like a picnic area or something along them lines it was, like a carpark of some description. It wasn’t tarred; it was dirt, and he used to drive a fair way and he’d park at the end, have me hop into the back seat of the Range Rover and, you know, there were times where he wouldn’t do the oral - playing with my penis part and the oral sex upon me. He’d just have anal sex with me.

Q.    Do you remember in particular the first time you were taken to this area – I think you’ve said there’s an overpass there now but at the time was at a bridge. Is that right?

A.    Yeah, I think it was a small bridge. There was nothing spectacular.

Q.    And it’s different now than—

A.    Yes. Yeah.

Q.    –when you were there.

A.    Yep.

Q.    Were there other cars around? I’m just going to try and focus on the first time.

A.    No, there was no other cars around at the time, no. It was night-time.

Q.    Do you remember the first time that there was this act of sexual intercourse inside the car at Woronora?

A.    Yeah, yep.

Q.    What happened?

A.    So he’d have me – we’d pull up in the carpark, he’d fold the seat down on the Range Rover, have me hop in the back of the car.

Q.    Perhaps I’ll ask you, which seats were folded down?

A.    The back seat would fold down, yep.

Q.    And then what happened?

A.    He would have me hop into the back seat of the car. He would, you know, proceed with trying to get me to have an erection and make me ejaculate and then, you know, he’s always trying—

Q.    Do you recall how he made you ejaculate on this occasion?

A.    Orally, with his mouth, yeah [this is count 36: sexual intercourse with child over 10 and under 16, s66C(2)],

Q.    Then what happened?

A.    He would then, you know have me roll over on my stomach which I knew exactly what that always meant. He would, you know, take his pants off. When he put my hand on his penis, he tried to get – you know, make me get him an erection or you know. So he had me roll onto my stomach. Either he’d already had me give him an erection or he’d get an erection himself by playing with himself, and then proceeded you know to get that film canister out again. He even kept, you know, a bottle of baby oil in the glove box of the car. He produced that baby oil or Vaseline and then put it on his penis and have anal sex with me.

Q.    Just in relation to this occasion and the first time at Woronora bridge, how did he get you to roll over? Was it actions or words on that occasion?

A.    No. He would physically roll me over, yep.

Q.    And on that occasion was there anal intercourse?

A.    Yes [this is count 37: sexual intercourse with child over 10 and under 16, s 66C(1)].

Q.    How did it come to an end?

A.    It would come to an end with him, as it did all the times of him, you know, having anal sex with me and ejaculating inside me and everything, yeah.

Q.    Was there ever any use of a condom?

A.    Never. Never.

Q.    But on this occasion there was lubricant from the canister.

A.    That’s correct.

Q.    Or something in the glove box.

A.    That’s correct.

Q.    About how many times do you think something happened at this area near--

A.    In the Woronora area? Three or four maybe on that spot. I don’t think he really liked that spot because it was a spot that cars could quickly drive in. Usually if he was going to pick a spot, it would be a secluded spot where cars weren’t easily accessible or he could see them coming.

146. The Crown notes that in DN’s later evidence DN confirmed that this was an account of “the first time” he had been taken to Woronora Bridge, and that DN gave further evidence that on this first occasion the car in question was the applicant’s Range Rover (T 118.9-27).

Counts 38 and 39 (Incident D6)

147. DN said that there were occasions he also had marijuana with the applicant at his home at Kurrajong. DN’s account of one such occasion (T 110.35-43) formed the basis of counts 38 and 39. The conviction on ground 38 is subject to the unreasonable verdict challenge; not the conviction on count 39.

Count 39: sexual intercourse with child over 10 and under 16 (s 66C(1))

148. DN’s account is that one night, the applicant invited DN to come into the garage of the Kurrajong Street house with him while his wife was asleep. The applicant gave DN some marijuana out of a bong and then bent him over a table and pulled down his pants (T 110.39-40). DN said that the applicant inserted a bottle into DN’s anus (uncharged) and squeezed some type of liquid out of it and then had anal sex with him (T 110.40-43). DN’s evidence was (from T 110.35):

What the Crown says is that if you are satisfied that the Crown has established these tendencies, then that makes it more likely that the complainants who have made various allegations at different times are likely to be telling the truth. [Emphasis as per the applicant’s submissions].

Applicant’s submissions

420. The applicant refers to Murdoch (a pseudonym) v R (2013) 40 VR 451; [2013] VSCA 272 at [81] where Priest JA (with whom Redlich and Coghlan JJA agreed) said:

I should pause to consider the difference between tendency evidence and coincidence evidence, since although they overlap, the two are distinct (albeit they are often conflated). Both seem to be underpinned by the notion that human behaviour occurs in patterns. Hence tendency reasoning carries with it the idea that because a person has acted in a particular way in the past, he or she will act in a particular way, or possess a particular state of mind, in the future. On the other hand, coincidence reasoning uses similarities in behaviour to prove that a person was responsible for it.

421. The applicant argues that there clearly is a distinction between tendency reasoning and coincidence reasoning, which is reflected by the terms of ss 97 and 98 of the Evidence Act. In relation to tendency reasoning, “the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue” (see Hughes v R (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [16] (Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that s 97(1) does not necessarily “condition the admission of tendency evidence on … operative features of similarity with the conduct in issue”; where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, the evidence is likely to have a high probative value where “(i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged” (Hughes at [39]-[41] per Kiefel CJ, Bell, Keane and Edelman JJ).

422. The applicant contrasts this with coincidence reasoning, which has been described as “improbability reasoning” which turns on an assessment of “similarities between [two or more] events, or … the circumstances surrounding those events, or both” to reason that the events in question did not occur coincidentally (referring to the ALRC Report 102 at paragraph 11.25). Section 98(1A) (which did not apply at the time of the trial, having been subsequently inserted in the legislation by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), Sch 1[3], which took effect on 1 July 2020) now provides that the “coincidence rule”:

… includes the use of evidence from 2 or more witnesses claiming they are the victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.

423. The applicant says that such an approach was already commonplace where the prosecution sought to rely on coincidence reasoning in multiple complainant trials. The applicant refers in this regard to a standard direction in the Criminal Trial Courts Bench Book (at [4-240]), though it is unclear to which version reference is made – the relevant chapter which includes the direction at [4-240] was updated in February 2021.

424. It is noted that the distinction between tendency and coincidence reasoning was considered by Basten JA (with whom Fullerton and RA Hulme JJ agreed) in Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 (Saoud) at [30]. There, his Honour observed at [43] that:

… there is an awkwardness in the separation of “tendency” evidence and “coincidence”, at least in some circumstances. Thus, in a case such as the present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused’s conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another.

425. In Hughes, the plurality of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) noted at [43] that at first instance in that case “the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal does not invite consideration of any overlap between tendency and coincidence reasoning” (citing Saoud v R at 490-491 per Basten JA). The applicant points out that in the present case, the Crown also eschewed reliance on coincidence reasoning.

426. It is noted that, in opening the Crown case, the Crown Prosecutor addressed the jury consistently with the Crown’s pre-trial tendency notice. The applicant says that it was only on the fourth day of the trial, at the close of the Crown case, that the Crown Prosecutor introduced coincidence reasoning into the Crown’s tendency case, in submitting that he intended to tell the jury that if they were satisfied the applicant had the tendencies that the Crown alleged, the jury could consider whether that made more likely allegations of the other complainants, noting the similarities.

427. The applicant points out that in his closing address, the Crown suggested to the jury that if they were satisfied, for example, that DN’s allegations established the tendencies alleged, the jury might think that that assists them to determine whether RA and MA were truthful witnesses and that the Crown Prosecutor’s submission culminated in him telling the jury that “The Crown says they’re all telling the same story about how Mr Madden operated, because they’re all telling you the truth”. The Crown later submitted that the complainants “tell a compellingly similar story”, suggesting they “clearly have not all sat in a room at any point”.

428. It is submitted that the Crown’s submissions in this regard invited the jury to reason that, because the complainants said similar things about the applicant’s conduct towards them and there was no evidence that their accounts were adversely affected by contamination or concoction, the jury should treat their evidence as supportive of each other on the logical basis that it was improbable that such similar allegations would be made about the applicant’s conduct coincidentally. In this respect, it is submitted that the Crown Prosecutor introduced coincidence reasoning into his tendency case.

429. The applicant says that it was open to the Crown to apply prior to the trial to rely on coincidence reasoning (which application would have then been determined in accordance with ss 98 and 101 of the Evidence Act) but that the Crown did not do this. It is submitted that accordingly the Crown was precluded from making any submission to the jury which invited their engagement in coincidence reasoning. The applicant contends that, by doing exactly that in his closing address to the jury, a miscarriage of justice was occasioned.

430. It is accepted that the applicant’s trial counsel said nothing either at the point that the Crown first raised with the trial judge prior to addresses the way in which he intended to put the Crown’s tendency case or following the Crown’s closing address. The applicant submits that the applicant’s counsel should have objected to the Crown relying on coincidence reasoning where no notice of the Crown’s intention to do so had been given. It is submitted that there is no forensic reason why, given the issues in the applicant’s trial, his counsel did not object.

431. Based on what the Crown said to the jury in his closing address, the trial judge directed the jury that if they were satisfied that the Crown had established the tendencies alleged, that would make it more likely that the complainants “who have made various allegations at different times are likely to be telling the truth”. It is submitted that, by directing the jury in this way, the trial judge erred, and effectively echoed the erroneous submission made by the Crown in his closing address. It is said that the erroneous direction was given to the jury on the first day of the trial judge’s summing-up. The applicant accepts that it was not repeated the following day during the balance of the judge’s directions including his written direction on tendency. However, the applicant says that it was also not cured by any further direction that was given.

432. Again, it is noted that the applicant’s trial counsel did not object or seek that any further direction be given. Accordingly, the applicant accepts that leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue Ground 4. It is submitted that leave should be granted. The applicant submits that a proper direction as to the use that the jury might put any tendency they found established by the evidence in the applicant’s case was a necessary element of a fair trial.

Crown’s submissions as to tendency and coincidence reasoning

433. The Crown points out that the use of tendency and coincidence evidence in this case was governed by the Evidence Act prior to the amendments effected by the Evidence Amendment (Tendency and Coincidence) Act2020 (NSW).

434. It is noted that in a child sexual assault case, the evidence of one complainant may be admissible in proof of another complainant’s allegations on the basis of either tendency or coincidence reasoning; and that, where tendency reasoning is relied upon, “the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue” (Hughes at [16] per Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that such a process of reasoning depends on the jury’s finding, first, that a particular allegation is true and, secondly, that the tendency asserted has been proved.

435. The Crown points out that, in the context of a child sexual assault prosecution, the Royal Commission explained the way in which tendency evidence may be deployed (p414):

If a jury accepts that the accused committed the other offence or offences, the law has accepted that the evidence may be capable of proving the accused has some tendency or propensity to act in a particular way – for example, to be sexually attracted to young boys and to act on that attraction. The jury may then reason that this makes it more likely that the accused acted on this tendency or propensity and committed the particular offence of abusing a young boy whose complaint is the subject of the trial.

436. The Crown says that, by contrast, coincidence reasoning, enables the evidence of multiple complainants to be “mutually corroborative” (Versi v R [2013] NSWCCA 206); i.e., instead of requiring any preliminary findings to be made, the jury can have regard to the “improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred” (Pfennig v R (1995) 182 CLR 461; [1995] HCA 7 at 482).

437. It is noted that, as explained by the Royal Commission, in the context of a child sexual assault prosecution (p 415):

Juries can use coincidence evidence from multiple complainants to reason that, given the similarities in the complaints, it is improbable that the complainants are all telling lies or are all mistaken.

438. The Crown contends that neither the closing address nor the trial judge’s summing up, considered in full, had the effect of inviting the jury to regard the evidence of each complainant as mutually corroborative (i.e., to engage in coincidence reasoning).

439. As to the closing address, it is said that the probative value of the tendency evidence in this case lay in the similarities between the allegations (cf the applicant’s written submissions at [168]). The Crown notes that in Hughes, the High Court recognised that the more particular an asserted tendency the higher its probative value (see at [64]). Reference is here also made to R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer), where the High Court spoke of the need for a “common feature” for tendency evidence to have the necessary probative value for admission (at [58] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) and, in McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 of the need to “identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together” (at [31] per Kiefel CJ, Bell, Keane and Nettle JJ).

440. The Crown argues that the probative value of the tendency evidence lay in the similarity of the accounts given by the complainants, not by virtue of coincidence reasoning but because the common features of the offending demonstrated a tendency which (if proved) increased the likelihood that any given complainant’s account of any given count was true (referring here to Bauer at [58]).

441. It is submitted that the Crown Prosecutor’s appeal to the jury to consider the similarities in the accounts given by the complainants therefore did not invite coincidence reasoning; i.e., it did not invite the jury to regard the evidence of each complainant as mutually corroborative (coincidence); rather, the Crown Prosecutor made clear that the jury had to consider, first, whether or not they accepted a single complainant’s account. It is said that the Crown Prosecutor’s submission that “if they were satisfied, for example, that DN’s allegations established the tendencies alleged, the jury might think that that assists them to determine whether RA and MA were truthful witnesses” was proper (cf the applicant’s written submissions at [167]) and that this described a way in which tendency reasoning was available to the jury.

442. As to the summing up, the Crown says that his Honour’s summing up did not invite the jury to regard the evidence of the complainants as mutually corroborative. Rather, it is noted that his Honour directed the jury that: they needed to be satisfied that any one or more of the alleged acts occurred before they could contemplate engaging in tendency reasoning (SU 8); they would then need to be satisfied beyond a reasonable doubt that the alleged tendency existed before they could engage in tendency reasoning (SU 8); and that only if they found the act or acts established and the tendency proved, then that might make it easier to accept the evidence of a complainant (SU 8).

443. The Crown says that the written directions (MFI 25) served to emphasise the need for the jury to make the necessary preliminary findings before they could go on to engage in tendency reasoning. Thus it is said that the directions in no way enabled the jury to treat the evidence of the complainants as mutually corroborative (cf the applicant’s written submissions at [171]).

444. Thus, the Crown submits that, read as a whole, neither the Crown Prosecutor’s address, nor his Honour’s summing up, invited the jury to engage in coincidence reasoning.

Determination

445. The applicant complains that there was a conflation in the Crown’s address and in the summing up between tendency and coincidence reasoning and that (unlike the position in Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42 (Hoyle) where the Court (Murrell CJ, Burns and North JJ) reasoned (at [208]) that the error had been rectified), here, the conflation was not corrected. It was accepted by the applicant that if what was here being said was that if the tendency is established it could make more likely the occurrence of the event in issue (i.e., that the applicant had acted in conformity with the tendency on a particular occasion) there would not be error. The applicant also accepted that the concepts of tendency and coincidence were not far apart.

446. In the present case, a complainant alleging an event consistent with an established tendency might well be seen as more credible or reliable in that account. The tenor of the observations of the Court in Hughes was that, if a tendency is accepted, this increases the likelihood that the complainant’s account was not fabricated. In this regard, the Court stated at [40]:

Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.

447. The remarks of the High Court in Bauer at [49] are also apposite:

As the trial judge in substance observed, it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.

448. The applicant says that there is a fine distinction but that there is nevertheless a distinction in the modes of reasoning involved. It has been suggested that, if evidence is admissible as tendency evidence, then a direction in terms of coincidence (emphasising striking similarities in the evidence) is unlikely to constitute a misdirection (see S Odgers, Uniform Evidence Law (2021, 16^th ed, Thomson Reuters) at [101.360]; where reference is made to KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 (KJR), per Rothman J at [52]-[54]; Simpson J (with whom McClellan CJ at CL agreed) at [3]-[4]); see also Doyle v R [2014] NSWCCA 4 (Doyle) per Bathurst CJ (with whom Price and Campbell JJ agreed) at [144]-[148]). Although neither KJR nor Doyle expressly state Odgers’ broad proposition, the cases demonstrate that proof of similar conduct may support proof of a tendency to behave in a certain way or have a certain state of mind, which in turn may establish the ultimate offence. This is apt to suggest a further requirement (that there be a similarity in the conduct) which is arguably to the benefit of the applicant (though here the applicant’s complaint is as to erroneous assertion of there being mutual corroboration of complainants).

449. In Hoyle, Murrell CJ, Burns and North JJ held that nothing could have turned on the prosecution’s error in confusing tendency and coincidence reasoning on two bases. As noted by the applicant, one of those bases was the fact that defence counsel drew the error to the attention of the trial judge who then gave directions to the jury to rectify the error. Yet, importantly, the second basis was that even if the Crown Prosecutor had corrected the error, this correction “would have had no impact on the way in which the jury dealt with the issue” (Hoyle at [172]). The Court said at [171] that “in the circumstances of the trial, the distinction between tendency reasoning and coincidence reasoning was subtle and likely to be lost on any jury”.

450. In the present case, there was no error. What was said conveyed an acceptable mode of tendency reasoning available to the jury. It was to the effect that, if it was accepted that the applicant had the tendency alleged, that may make it more likely that the applicant did the things alleged in respect of each complainant and each count; i.e., in effect that the version of each complainant concerning the alleged offences was more likely to be truthful. The jury was not misled as to the reasoning required to be satisfied that the ultimate offence was committed, as the similarity of the conduct is relevant to the proof of the tendency and thus to the proof of the offence. The trial judge here also gave particular emphasis to the requirement that the jury be convinced beyond a reasonable doubt of the conduct alleged.

448. Grounds 3 and 4 are not made good; and leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 should be refused in relation to these grounds.

Ground 5: A miscarriage of justice was occasioned by the incompetence of the applicant’s trial counsel

Applicable principles

452. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (Nudd v (2006) 80 ALJR 614; [2006] HCA 9 (Nudd) at [12] per Gleeson CJ; TKWJ v R (2002) 212 CLR 127; [2002] HCA 46 at 149-150 [79] per Gleeson CJ; Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at 665 [18] per Hayne J).

453. In R v Birks (1990) 19 NSWLR 677 (Birks) (the case from which the eponymous Birks ground has been coined), the Court of Criminal Appeal considered an appeal on the ground of incompetence of counsel. At trial, after directions had been given to the jury which invited the jury to treat the conduct of the defence counsel as a relevant factor when engaging in their own decision making process and when forming views as to the credibility of the accused, defence counsel informed the trial judge that the failure to cross-examine the complainant about certain matters had been the result of his own oversight. Gleeson CJ noted (at p 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted but went on to say (at p 684) that:

It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common them running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.

454. At p 685, his Honour summarised the relevant principles, the third of which was:

However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

455. In Birks, the two features which his Honour considered took it out of the ordinary run (see at pp 685-686) were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem could have been dealt with once the problem had become apparent during the cross-examination of the appellant (relevantly, in that case there was available evidence to support the appellant and to rebut the inference that the jury was invited to draw from Counsel’s conduct). His Honour said that:

The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing.

456. Those principles were recently applied by Adamson J (with whom Bellew and Cavanagh JJ agreed) in La Rocca v R [2021] NSWCCA 116 (at [136]-[138]).

457. Counsel’s conduct is to be examined objectively, from the record of the trial (see Nudd per Gleeson CJ at [9]), and the relevant standard is whether the conduct was “incapable of rational explanation on forensic grounds” (Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1 at [415] per Bathurst CJ, R A Hulme and Beech-Jones JJ).

458. As made clear in Birks, it is insufficient for an applicant “simply to point to some failing, even a gross failing, of the legal representative who appeared”; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; Davis v R [2017] NSWCCA 257 at [59] per Price J, with Hoeben CJ at CL and Schmidt J agreeing).

Applicant’s submissions

459. The applicant submits that a miscarriage of justice was occasioned by the incompetence of the applicant’s trial counsel. It is submitted that the incompetence of his trial counsel manifested itself in the cumulative effect of the following combination of omissions.

460. First, not making a pre-trial application for counts 20, 23 and 24 to be stayed because they were statute-barred.

461. Second, not giving an opening address.

462. Third, cross-examining each complainant in a manner that was “both exceedingly brief and devoid of any discernible forensic purpose beyond effectively “putting” that the offences did not happen” (see applicant’s submissions at [175]). It is noted that, for MA and DN, Counsel’s cross-examination was a total of 13 questions (six questions put to MA and seven questions put to DN).

463. Fourth, not addressing the Court in response to the Crown’s indication at the close of the Crown case that he intended to expand the Crown’s tendency case to include coincidence reasoning.

464. Fifth, not making any application for a directed verdict in respect of counts 34, 35, 36, 37, 46, 47 or 56, where DN’s evidence went no higher than “generalised assertions” of sexual misconduct by the applicant towards him rather than evidence as to any particular act alleged by those counts.

465. Sixth, giving a “strikingly brief closing address, during which he made no specific submissions about any of the matters raised by the evidence adduced in the case, in particular, any of the matters addressed by these submissions under Ground 2”. It is noted that Counsel’s closing address went no further than reminding the jury about the onus and standard of proof and reminding them that the applicant said he did not commit the offences.

466. Seventh, making no application for a direction pursuant to s 165B of the Evidence Act 1995 in circumstances where the applicant’s defence was that he did not commit the offences and was at the considerable forensic disadvantage of being on trial more 25 to 30 years after the fact, in circumstances where he was first interviewed in respect of any of the allegations in 2017, and where his ability to marshall any sort of defence by investigating the complaints made, challenging the complainants or other witnesses in the Crown case, calling evidence and generally conducting his defence were affected adversely by this delay (here referring to Tully v R (2006) 230 CLR 234; [2006] HCA 56 at [177] per Crennan J).

467. The applicant submits that, having regard to the accumulated impact of the above matters and having regard to the overall way in which the applicant’s trial was conducted by his counsel, there was a miscarriage of justice warranting appellate intervention.

Crown’s submissions

468. As to the particulars of incompetence, the Crown submits as follows.

469. As to the first, the Crown accepts that the convictions for counts 20, 23 and 24 must be quashed on account of the operation of s 78T. However, the Crown submits that the failure to seek a stay of these counts did not contribute to a miscarriage of justice; noting that it would not have prevented the evidence that gave rise to those counts from being led.

470. As to the second (not giving an opening address), the Crown notes that an opening address is facultative (referring to s 159(1) of the Criminal Procedure Act 1986) and is not an option always taken up by defence counsel. The Crown says that, given that an opening address may not be used to make submissions to the jury (citing R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81), there was no forensic advantage to be gained by giving an opening address. It is submitted that particularly where, as here, the defence case was an outright denial of the offences, there was little to be achieved by way of a narrowing of the issues. In those circumstances, the Crown says that it cannot be said that, objectively speaking, there was no rational forensic explanation for the failure to give an opening address. It is submitted that this failure could not have affected the outcome of the trial.

471. As to the third complaint (as to the cross-examination of the complainants), the Crown accepts that the cross-examination of the complainants was “unorthodox”. However, the Crown argues that it was capable of explanation on rational forensic grounds in circumstances where the applicant’s case was a simple denial that the offences had occurred. It is said that, faced with historical allegations, the applicant could do little other than deny the offences (and put that to the witnesses). It is submitted that, by not cross-examining the witnesses further, the applicant prevented the witnesses from repeating their evidence in chief and supplying further details in relation to each incident that may only have enhanced their credibility. It is submitted that this left the applicant in a strong forensic position simply to submit that the Crown had not discharged its burden of proof.

472. As to the fourth and fifth particulars of complaint (failure to complain about the Crown’s asserted use of coincidence reasoning and failure to make application for directed verdicts in relation to those counts for which it was contended that there was only generalised evidence) the Crown argues that (for the reasons set out in the Crown’s submissions on those matters) there was no issue that trial counsel could legitimately have taken with the Crown Prosecutor’s closing address or with the evidence given by DN.

473. As to the sixth matter (the brevity and inadequacy of the closing address), the Crown accepts that the defence closing address was also “unorthodox”. However, it is noted that defence counsel emphasised the burden of proof and what were said to be “strong” denials by the applicant in his evidence. The Crown accepts that it is usual to address a jury in far greater detail, but points to what was said by defence counsel, namely that “In the face of such allegations, what is a man to say in response? Is it enough to say ‘It didn’t happen’ or ‘I didn’t do it’? What is he to do? He went in the witness box, opened himself to your scrutiny and said ‘I didn’t not (as said) do any of these things alleged by [RA], [MA], [DN] or [BW]’”. The Crown says that it is apparent that defence counsel’s strategy was to appeal to the jury’s sense of fairness, to rely on the applicant’s evidence and to submit that the Crown had not discharged its burden of proof. The Crown argues that although such a strategy was unorthodox, it cannot be said that it was incapable of rational explanation on forensic grounds.

474. Moreover, the Crown says that many of the possible deficiencies in the evidence now relied upon were drawn to the jury’s attention by the Crown Prosecutor, including: that the jury would “no doubt have to consider that initially he thought it might have happened in the house” (a reference to count 8) (T 244); that “no doubt, you will find it relevant that I asked ‘Did you ever engage in anal intercourse with Mr Madden’ And he said ‘I don’t think so’ … The Crown doesn’t shy away from that” (T 245) (in reference to count 12); that it was a matter for the jury “as to whether you’re satisfied he did refresh his memory from a statement he made in 2007 and whether it was a memory he had sitting in court” (in reference to RA, specifically count 12); that count 18 was “a tough one” as there was some “conflicting evidence” in relation to it (T 249-251); that “one of the biggest tasks” for the jury would be “working out what happened between [MA] and [DN]”, with reference to their conflicting evidence (T 252-3); and that the jury would need to consider that count 22 was elicited only after MA refreshed his memory from his statement (T 252).

475. As to the seventh matter (failure to apply for a s 165B warning), the Crown says that counsel needed to be able to demonstrate that the applicant had suffered an identifiable, significant forensic disadvantage beyond the mere passage of time (Groundstroem v R [2013] NSWCCA 237 at [56] per Adams J with whom Macfarlan JA and Button J agreed; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [39] per Gleeson JA with whom Price and Wright JJ agreed); and argues that the applicant has identified no particular forensic disadvantage that would have justified a s 165B warning. It is noted that, to the extent that the mere passage of time had caused the applicant a disadvantage, his Honour told the jury that 30 years “is a long time in anyone’s language” and that the jury had to take into account that “over time people’s recollections change, they vary. People forget things” (SU 2).

476. The Crown says that, in circumstances where no significant forensic disadvantage has been identified, it cannot be said that defence counsel’s failure to seek a particular direction in that regard was not justifiable.

Determination

477. Of the complaints made by the applicant as to the conduct of the trial by defence counsel, to my mind that which takes this matter outside the ordinary running of a trial (to use the language of Gleeson CJ in Birks) is the perfunctory nature of the cross-examination of the complainants coupled with the equally inadequate closing address. The gross failings in that regard are amply demonstrated by the comprehensive and careful way in which the applicant’s (different) counsel on appeal explored the inconsistencies in the evidence of MA and DN and the matters that it was contended should have raised a reasonable doubt in the mind of the jury. Even if, as the Crown here suggested, there was a rational forensic decision to take the (concededly unorthodox) approach that defence counsel did in cross-examination of MA and DN (doing little more than putting to them that their account of events was incorrect), there is no apparent rational basis for failing to highlight to the jury the inconsistencies in the evidence – particularly the evidence that the Crown concedes is not readily reconcilable. There is much force to the observation that this was a case that defence counsel appears to have allowed the case simply to “wash over” him; and in those circumstances the applicant did not have a fair trial on the very serious counts alleged against him.

478. The question then is whether defence counsel’s conduct in that regard affected the outcome of the trial such that there was a miscarriage of justice. I accept that the Crown pointed to some of the evidentiary difficulties in its closing address; and that the balance of the complaints here made by the applicant would not warrant appellate intervention. However, I consider that defence counsel’s failure was so incompetent that the applicant was deprived of the opportunity to have a fair trial. Even if the lack of address was more significant for some counts than others, all are infected by the error because of the reliance on tendency evidence which pervaded each count.

Appropriate relief

479. The applicant’s convictions on the counts which were statute barred (counts 20,23 and 24) should be quashed and verdicts of acquittal entered. The applicant’s convictions on the counts where the verdict has been found to be unreasonable or unsupportable (counts 1-3, 21, 22, 51, 52 and 53) should be quashed and verdicts of acquittal entered. On the remaining counts on which the applicant was convicted, the convictions should be quashed because the incompetence of defence counsel at trial deprived the applicant of a fair trial and those counts should be remitted for re-trial.

Orders

480. For the above reasons, I propose the following orders:

1. Extend the time for the filing of the notice of appeal to 8 November 2021.

2. Leave to appeal be granted.

3. Appeal allowed.

4. Quash the convictions on each of counts 1-3, 20-24 and 51-53; and substitute on those counts verdicts of acquittal.

5. Quash the convictions on the remaining counts and remit the matter to the District Court for retrial; and list the matter before the District Court on 23 September 2022.

481. R A HULME J: I agree with the analysis, conclusions and orders proposed by Ward P.

482. It is highly regrettable that a retrial must be ordered but it is necessary for the reasons provided by Ward P.  It may be generous to regard the brevity of Mr Sabharwal’s cross-examination of the three complainants (occupying an aggregate of 6 pages of transcript) as being an astute forensic tactic.  The closing address, however, was anything but that.  It was so perfunctory that it ran to a mere 36 lines of transcript.  It was confined to telling the jury about a subject that had already been covered by the Crown Prosecutor and would be addressed again by the trial judge: the onus and standard of proof.  There was not the slightest attempt at providing the jury with any critical analysis of the quality of the evidence relied upon by the prosecution.  In these circumstances, it is difficult to understand how the applicant benefited from having legal representation at all. 

483. BELLEW J: I agree with Ward P. I also agree with the additional observations of R A Hulme J.

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Decision last updated: 09 September 2022