PFC v R
[2011] NSWCCA 275
•15 December 2011
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: PFC v R [2011] NSWCCA 275 Hearing dates: 14 and 24 October 2011 Decision date: 15 December 2011 Before: Giles JA, Hoeben J, Hall J Decision: Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal against conviction - multiple counts of sexual intercourse involving children, using children for pornographic purposes and doing act with the intent to pervert the course of justice - competence of counsel at trial - fresh evidence - miscarriage through duress or medication affecting giving instructions - errors by Crown Prosecutor or in summing-up - inconsistency of verdicts - unsafe or unsatisfactory verdicts - appeal dismissed. Legislation Cited: Children (Criminal Proceedings) Act 1987;
Criminal Appeal Act 1912.Cases Cited: [C] v State of New South Wales [2006] NSWSC 673;
[C] v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R;
Dungay v R [2010] NSWCCA 82;
Clarkson v R [2007] NSWCCA 70; (2007) 171 A Crim R 1;
Craig v The King (1933) 49 CLR 429;
GAR v R (No 1) [2010] NSWCCA 163;
Ignjatic v R (1993) 68 A Crim R 333;
Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284;
Mickelberg v The Queen (1989) 167 CLR 259;
M v The Queen [1994] HCA 63; (1994) 181 CLR 487;
M'Naghten's Case (1843) 1 Car & Kir 130n; (1843) 4 State Tr NS 847; [1843-60] All ER 229; (1843) 10 Cl & Fin 200; (1843) 8 ER 718;
Monteiro v R [2011] NSWCCA 113;
R v Abusafiah (1991) 24 NSWLR 531;
R v Abu-Chabake [2004] 149 A Crim R 417;
R v Apostilides (1984) 154 CLR 563;
R v Gallagher (1986) 160 CLR 392;
R v Abusafiah (1991) 24 NSWLR 531;
R v Presser [1958] VR 45;
Richardson v The Queen (1974) 131 CLR 116;
SKA v The Queen [2011] HCA 13;
Still v R [2010] NSWCCA 131.Category: Principal judgment Parties: PFC - Appellant
Crown - RespondentRepresentation: Counsel:
Appellant in person
F Veltro - Respondent
Solicitors:
Appellant in person
S Kavanagh, Solicitor for Public Prosecutions - Respondent
File Number(s): 2008/3811 Decision under appeal
- Before:
- Norrish DCJ
- File Number(s):
- DC 2007/31/0238; 2008/11/0616
Judgment
THE COURT : The appellant stood trial before Norrish DCJ on an indictment containing 29 counts, some with alternatives. There were 19 counts of sexual assault or acts of indecency involving 6 different complainants, 3 counts of possessing child pornography or using a child for pornographic purposes, and 7 counts of perverting the course of justice. The trial occupied 27 days from 11 May 2009 to 19 June 2009. A verdict of not guilty on one count was directed on 25 May 2009. The jury returned verdicts of guilty on 23 of the remaining 28 counts.
On 21 December 2009 the appellant was sentenced to a total period of imprisonment comprising a non-parole period of 10 years 9 months and a balance of term of 3 years 8 months.
On 9 May 2011 this Court, differently constituted in part, heard an appeal against sentence brought by the Director of Public Prosecutions. The appeal was dismissed: R v PFC [2011] NSWCA 130.
The appellant had filed an appeal against conviction. He was unrepresented for that appeal, and there were difficulties in bringing it on for hearing. The hearing eventually took place on 14 and 24 October 2011.
For the reasons which follow, the appeal should be dismissed.
Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits, in substance, the publication or broadcasting of the name of a child involved (including mentioned) in criminal proceedings, even if the person is no longer a child. This extends to material likely to lead to the identification of the person. We have thought it appropriate to refer extensively to persons involved in these proceedings who were children, and to others including the appellant through whom they might be identified, by initials and otherwise to express these reasons so as to avoid identification.
Background
The appellant was born in 1953. He left school at the age of 15 to work in his brother's company. He worked variously in real estate and as a motor vehicle auctioneer, and then as a projectionist technician at Greater Union for 15 years. He took voluntary redundancy and moved to Taree.
The appellant was unemployed for some years, and undertook volunteer work at schools and in the community. He founded and ran a computer business from 1997 to 2001. During the period of the offences with which he was charged the appellant lived at Wingham, Taree or Pampoolah in the Manning River area.
The appellant had been married in 1976 and was divorced in 2000. There were five children of the marriage, some of whom lived with the appellant.
The offences charged in the indictment covered the period 1997 to 2009. The sexual assault or act of indecency offences involved the complainants DM (4 counts); CB (3 counts), SB (2 counts); DB (5 counts); MH (1 count) and TB (4 counts). All complainants were young males. DB, SB and TB were brothers, in descending order of age. The two offences of using a child for pornographic purposes involved DM and CB. For the offences of perverting the course of justice, it was alleged that the appellant had got or had attempted to get various of the complainants to provide false evidence in relation to one of these or other offences with which he had been charged.
The appellant met the complainants DM and CB either through his son B or through his son's friends; they were contemporaries of his son. It was contended by the Crown at trial that they were groomed in various ways by the appellant, such as by taking them on outings, exposing them to pornography, lending them the appellant's jet ski and giving them cash, accommodation or gifts. Both complainants were either dysfunctional or from dysfunctional backgrounds before they met the appellant, and CB in particular was prone to engage in anti-social behaviour.
The appellant also knew the complainants DB, SB and TB through knowing their family. There had been wider dysfunction in the B family. The children lost their mother when young, and between 2001 and 2006 the appellant performed a mentoring role. The appellant extended this role when SB came to live with him and he became SB's legal guardian. It was contended that these complainants were groomed in a similar manner to that described above.
The complainant MH was a contemporary of either or both of DB and SB, and was one of a group of youths who knew and were known by the appellant.
The appellant had some criminal antecedents. They included convictions in the early 1970's for false pretences, for which he received minor fines. There were no offences recorded against him from 1972 to 1999. In 1999 he was convicted of having goods in custody reasonably suspected of being stolen. He had been convicted in 1997 for the offence of indecent assault (later quashed) and in 2006 for the offences of attempting to procure a child for pornographic purposes, inciting a child to commit an act of indecency and possession of child pornography (the last later quashed); we refer to these later in our reasons. His criminal antecedents were not in evidence at the trial, but were material to his counsel's conduct of his defence.
The offences
The offences of which the appellant was convicted are tabulated below, and the central evidence in the Crown case is summarised with some chronological context in the following paragraphs. The offences of perverting the course of justice, or later dates, are included in the table out of order so as to indicate the complainant concerned.
Complainant
Count on Indictment
Offence
Date of Offence
DM
1
Aggravated (under 16) indecent assault (s 61M(1) Crimes Act 1900)
1 August 1997 - 30 September 1997
DM
2
Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act )
1 December 1997 - 31 December 1997
DM
3
Attempted sexual intercourse with child between 10 and 16 (ss 66C/66D(1) Crimes Act )
1 December 1997 - 31 March 1998
DM
4
Attempted sexual intercourse with child between 10 and 16 (ss 66C(1)/66D Crimes Act )
1 March 1998 -30 April 1998
(DM)
6
Do act with intent to pervert course of justice (s 319 Crimes Act )
1 December 2006
CB
7
Use child over 14 years for pornographic purposes (s 91G(1)(a) Crimes Act )
1 April 1998 - 31 May 1998
SB
12
Aggravated (under authority) sexual intercourse with child between 14 and 16 (s 66C(4) Crimes Act )
1 August 2003 - 30 November 2003
SB
13
Aggravated (under authority) sexual intercourse with child between 14 and 16 (s 66C(4) Crimes Act )
1 April 2004 -30 June 2004
SB
14
Use child for pornographic purposes (s 91G(1)(b) Crimes Act
1 September 2004 - 30 September 2004
(SB)
15
Do act with intent to pervert course of justice (s 319 Crimes Act )
27 January 2005 - 31 October 2005
DB
16
Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act )
20 April 2001 - 31 December 2001
DB
17
Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act )
14 April 2001 - 31 December 2001
DB
19
Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act )
1 June 2001 - 31 December 2002
DB
20
Sexual intercourse with child between 10 and 16 (s 66C(1) Crimes Act )
11 September 2002 - 31 December 2002
(DB)
21
Do act with intent to pervert course of justice (s 319, Crimes Act )
6 November 2003 - 16 April 2004
(DB)
22
Do act with intent to pervert course of justice (s 319 Crimes Act )
4 July 2005 - 8 December 2006
MH
23
Aggravated (under 16) indecent assault (s 61M(1) Crimes Act )
1 January 2003 - 30 June 2003
(MH)
24
Do act with intent to pervert course of justice (s 319 Crimes Act )
6 November 2003 - 15 April 2004
TB
25
Sexual intercourse with child between 10 and 14 (s 66C(1) Crimes Act )
1 January 2005 - 31 January 2005
TB
26
Sexual intercourse with child between 10 and 14 (s 66C(1) Crimes Act )
31 January 2005 - 1 November 2005
TB
27
Sexual intercourse with child between 14 and 16 (s 66C(3) Crimes Act )
30 September 2005 - 1 November 2005
TB
28
Sexual intercourse with child between 14 and 16 (s 66C(3) Crimes Act )
28 February 2006 - 26 April 2006
(TB)
29
Do act with intent to pervert course of justice (s 319 Crimes Act )
6 February 2009 - 11 February 2009
For the 1997 conviction, later quashed, to which we have referred at [14] it was alleged that on 7 June 1997 the appellant took his son B and a friend TR to Sydney, the appellant and TR slept in the back of the appellant's station wagon, and TR woke up to find the appellant touching him in the groin area. The appellant was charged with indecent assault on 11 June 1997. The Crown initially sought to rely on this as tendency evidence, but it was excluded. As earlier indicated, this was relevant to counsel's conduct of the defence.
The first offences in time in the present appeal involved DM. DM was born in 1983.
The first offence was in August - September 1997, when DM stayed at the appellant's home in company with the appellant's son B and a friend SC. DM and the two others were watching videos. They fell asleep. DM woke to find the appellant touching him on the penis. He was directed into another room, where the appellant masturbated him. DM was scared. The appellant asked if he was going to tell anyone, and he said no. Afterwards the appellant gave DM some cash. This was the subject of count 1.
On 27 November 1997 the appellant was convicted in the Local Court at Burwood of indecent assault on TR. Looking ahead for the moment, he appealed to the District Court and on 27 July 1998 the conviction was quashed when the complainant was unwilling to give evidence.
The jury was not told of the TR allegations or the TR proceedings.
The second offence involving DM was in December 1997. The appellant took DM, in company with his son B and SC, from DM's home in Newcastle for a trip to Sydney, where they went skating and to the markets and played video games. DM and the other boys slept at the house of the appellant's mother in Rozelle. DM woke during the night with the appellant performing oral sex on him. This was the subject of count 2.
The third offence involving DM was some months later, in the first months of 1998. DM was taken to a lookout around 20 minutes out of Wingham, where the appellant took photographs of him with a video camera. DM was told to undress and masturbate himself so as to be erect for the photographs. The appellant said he wanted to have sex with DM, and pressed himself against his back and attempted to have intercourse whilst clothed. This was the subject of count 3.
The fourth offence involving DM was later again, in March-April 1998. The appellant gave DM a lift to a party at Wingham, to see CB and other friends. He stopped the car in a rest area. DM was told to remove his clothes and the appellant grabbed him on the penis. They then moved to the back seat of the car. The appellant was masturbating DM and "sort of" masturbating himself. The appellant attempted to put his penis in the anus of the complainant. After some time DM returned to the front seat of the car and they drove off. The appellant made DM reassure him that he was not going to tell anyone what had occurred and gave him cash (maybe $100-$150) and bought alcohol for him. This was the subject of count 4.
The appellant was charged with a further sexual offence involving DM (count 5), on which he was found not guilty. It was alleged that in March-April 1998 the appellant employed and used DM, a child under the age of 18 years, for pornographic purposes.
The next offence in time involved CB. He was born in 1982.
The appellant met CB through DM in or around May 1998. He introduced CB to pornography, including child pornography, at his home. The appellant told CB that he could make money by posing in photographs similar to those he had been shown, and that the appellant would take pictures of him and find someone to sell them to and would give CB a percentage of the money made. CB initially told the appellant that he was not interested in the offer. Around one week later CB contacted the appellant and said he was willing to have some photos taken. They met in town and the appellant drove the complainant to a lookout. The appellant told CB there was no guarantee of being paid immediately. The complainant was told to pose and to arouse himself. After the photos were taken CB was given money so that he could buy some cigarettes. This was the subject of count 7.
The appellant was charged with other offences involving CB, on which he was found not guilty. Three occasions of sexual assault in April-May 1998 were alleged (counts 8-10; count 10 was the subject of the verdict by direction). He was also charged with acting with intent to pervert the course of justice (count 11), see at [57] below.
Chronologically, and material to the charge in counts 6 and 11 of perverting the course of justice, on 9 June 1998 the appellant asked DM and CB to make a video for him. The video (Exhibit B) depicts DM and CB speaking to the camera. The trial judge noted that the complainants appeared to be saying memorised lines or reading from pieces of paper. In the video DM said the following -
"DM: CB and I would like to apologise to [ son B] and his dad Mr C. We have been to lots of parties and someone always brings up Mr C and they call him Paedophile P. We add to the gossip by saying that he felt us up and molested us. When we're at these parties everyone tries to outdo each other with bullshit. We are sorry for upsetting [son B] and his dad, they have done a lot and always been there for us to help us, me a lot since I moved out of home. Mr C is a ledge. Today is the 9th June 1998. And do you know what, Mr C is a scammer. Sorry, [son B], man. Hey DB its your turn bro.
CB: Really let [son B] and Mr C down. When you're at a party and you don't care what you say as long as someone listens to you, you say bullshit like Mr C molested me and everyone wants to know the details and girls really get sorry for me and start to hug me. I know it was the wrong thing to say these things, wait, I can't read my own writing, but I get so mixed up that I just like attention. Sorry [son B], I hope you and your dad can forgive me. I am in a bit of trouble now and Mr C is helping me. I don't know how bullshit can get out of control. I've heard the school, I heard it at school about me and DM. I'm sorry."
DM gave evidence that the contents of the recorded statement were not true and that in the video he had read from a statement that the appellant had given him.
The next offences in time involved DB. He was born in 1987. He first met the appellant through the appellant's nephew JR, who attended the same school.
The first offence involving DB was in the second half of 2001. JR and DB went out on the appellant's jet ski on a number of occasions. When they returned from one of their outings, JR and DB went back to the appellant's house and started playing on the computer in the appellant's computer room. The appellant took DB into the lounge room, and had him lie on his stomach while he gave him a massage all over his body. DB was then asked to lie on his back while the appellant massaged his chest and legs and had DB remove his shirt. The appellant started to play with the complainant's penis. DB ran away, but eventually was taken back to the lounge room when the appellant undid DB's pants and placed DB's penis in his mouth. This was the subject of count 16.
The second offence involving DB was about a month later. DB went to Sydney with the appellant and JR. They took JR to his stepfather's house, then went to Time Zone and thereafter to McDonalds. The appellant told DB that they should sleep in the car as it was getting late. He parked the car on a small road near bushland and had DB get into the back of the station wagon with him. There was no bedding. The appellant had the complainant face away from him and inserted his penis into DB's anus. Both slept in the car then eventually drove back to Taree with JR. This was the subject of count 17.
The third offence involving DB was later in 2001 or in 2002. DB, SB and a number of other boys were staying at the appellant's house. The appellant suggested that DB accompany him to get some pizza. He drove to a lookout near Taree, stopped the car and got into the back of the station wagon with DB, and inserted his penis into DB's anus. They bought pizza and returned to the appellant's home. This was the subject of count 19.
The fourth offence took place later in 2002. DB continued to go jet skiing with the appellant. On one occasion after they returned to the appellant's home the appellant watched DB shower, then took him to his bedroom and inserted his penis into DB's anus. This was the subject of count 20.
The appellant was charged with a further sexual offence involving DB, count 18, on which he was found not guilty. DB gave evidence of them driving to a motel near Lismore, where they shared a bed and the appellant touched his penis and put the appellant's mouth to it.
The next offence in time involved MH. He was born in 1990. He had met the appellant through a friend when he was in year 7.
The offence was in the first half of 2003. The appellant had offered to take MH wherever he would like to go around the Taree area. MH called the appellant and asked him for a lift. The appellant picked MH up and told him that he needed to go back to his house to collect something. The appellant took MH into the computer room where he showed him pictures and files of naked boys. MH said he was not interested in the pictures and asked to be taken home. The appellant told MH that he could make a lot of money from selling photos such as the ones he had shown him on the internet and overseas. The appellant then led MH into the shower and told him to wash himself. He took MH out of the shower, took him into the lounge room, told him to lie down on the floor and began to masturbate him. When the appellant had finished he offered to take MH home. MH dressed himself. The appellant told MH not to tell anyone. This was the subject of count 23.
The next offences in time involved SB. He was born in 1989. There were problems at home, and SB came to live at the appellant's house and the appellant became his guardian.
The first offence involving SB was about a week after SB moved into the appellant's house. It was charged as an offence in the period 1 August 2003 - 31 November 2003, but the appellant contended that SB did not come to live at his house until May 2004. The appellant disturbed SB while he was attempting to go to sleep. He touched SB on the leg. SB pushed him away. The appellant pulled down SB's boxer shorts and kept forcing himself on the complainant (who was lying on his stomach), eventually putting his penis in SB's anus and ejaculating. The appellant told SB not to tell anyone or go to the police. This was the subject of count 12.
Chronologically, we next refer to the proceedings between the appellant and the father of TR, whom we will call TR2. On 7 November 2003 the appellant complained to police that TR2 tried to run him over. On 2 December 2003 he commenced a private prosecution against TR2 in the Taree Local Court on a charge of intimidation.
During the hearing of that matter on 15 April 2004, DB gave evidence as a witness for the appellant. Count 21 charged that the appellant had done an act with intent to pervert the course of justice, namely, persuade DB to give false evidence in the TR2 proceedings. At a time before the hearing he got DB to sign, without reading them, statements to the effect that he saw a man trying to run the appellant over, whom he knew and would recognise. The appellant called DB as a witness, telling him that he had to abide by the statements or he would be in trouble. DB gave evidence in the present trial that the statements were false.
Also at a time before the hearing, the appellant promised MH money to sign a statement for use in the TR2 proceedings saying that he saw the appellant being hit by a man near a store. MH signed a statement dated 11 November 2003. MH ultimately did not give evidence. This was the subject of count 24.
The appellant subsequently withdrew the intimidation charge against TR2.
The second offence involving SB was in April-June 2004. SB went between his father's house and the appellant's house frequently. At a time SB was staying with the appellant he was again asleep when the appellant entered his bedroom. The appellant pulled down the blankets and SB's boxer shorts and put his penis into SB's anus. This lasted for approximately 5 minutes, SB thought the appellant ejaculated. He said he was going to inform the police what had happened. The appellant told him, "No you won't because you're getting money out of this case". This was the subject of count 13.
The third offence involving SB concerned the appellant using a video camera to record SB performing sexual acts with a carrot. The appellant and SB went on holidays together to the Gold Coast and Thredbo. Over this time the appellant asked the complainant if he would pose for pornographic photos for him, and showed him pornographic pictures of youths aged between 10 and 17. He told the complainant that he had posed in similar photos when he was the complainant's age. The complainant refused to take part. Then the appellant asked SB again, and told him that he could make money as the video could be sold overseas on the internet. SB agreed as he had no money. They went back to the appellant's house, where the video was set up in the lounge and sexual acts were recorded including masturbation and SB placing the carrot in his anus. No one else was present. This was the subject of count 14.
The "carrot video" and a "second carrot video" received particular attention in the appeal. At the end of the "carrot video" SB said, "DB P's home. Can we stop now?" SB gave evidence that he was told to say this by the appellant, whom he was afraid of. The appellant relied on it to show that he was not recording the video, and cross-examined SB accordingly.
The final sexual offences involved TB. He was born in 1991, and had met the appellant through his brothers although initially he had not been allowed to go jet skiing with them.
The first offence involving TB was in early 2005. The appellant asked SB and TB to chop wood for him. Whilst he was taking a break the appellant asked TB to lie on the lounge, rubbed him on the chest and body on the outside of his clothes, then asked him to take off his shirt and shorts which TB did as he was afraid of what would happen otherwise. The appellant asked TB to take off his underwear. TB did not want to do it but thought he had to. The appellant then sucked TB on his penis. TB ejaculated. The appellant asked TB to repeat the action to him. TB refused to do so. This was the subject of count 25.
The second offence involving TB was in the following months. TB was approached by the appellant in the street. He told the appellant he was going to his friend's house to borrow some money. The appellant said that he would give TB some money and a McDonalds meal if TB came with him to his house. They purchased some McDonalds and drove to the appellant's house. Along the way the appellant told TB to remain hidden (crouched down) in the car to be out of sight to observers. When TB and the appellant arrived at the appellant's house they went to the appellant's bedroom where the appellant told TB to remove his clothes and lie on the bed. The appellant helped TB remove his clothes and sucked TB's penis. The appellant then told TB to turn over onto his hands and knees, which he did. TB felt some liquid on his backside that he later understood to be lubricant. The appellant had anal intercourse with TB. The complainant asked the appellant to stop what he was doing. On his second request the appellant stopped. TB had a shower and the appellant drove him home. This was the subject of count 26.
The third offence involving TB was took place some months later again, in the latter part of 2005. The appellant invited TB over to his house. TB was reluctant to go but the appellant offered him money if he went with him. While the complainant was playing PlayStation, the appellant sucked TB's penis. TB ejaculated. This was the subject of count 27.
The fourth offence involving TB was in the first part of 2006. About 5 or 6 months after the preceding incident TB was approached by the appellant in his car as TB was walking to the Aquatic Centre. The appellant asked TB to come to his house, and offered him money for entrance to the Aquatic Centre and some McDonalds. TB agreed. The appellant drove TB to his house, asking TB to hide himself in the car so that he would not be seen. On arrival the appellant told TB he had something to show him. He took him to the computer room where he showed him a video of two boys giving each other oral sex. The appellant then pulled TB's pants down and sucked his penis. TB ejaculated. The appellant took TB to the Acquatic Centre and gave him money for entry to the pool and some McDonalds. This was the subject of count 28.
At this point we refer to "the Port Macquarie proceedings", from which came the 2006 convictions to which we have referred at [14].
The Port Macquarie proceedings took place before Garling DCJ in the District Court at Port Macquarie in 2006. In that trial the appellant was charged with attempting to procure a child over 14 for pornographic purposes, inciting a person under 16 to commit an act of indecency and possession of child pornography. The appellant represented himself at the hearing. The appellant was convicted on all three counts. The Court of Criminal Appeal confirmed the conviction for the first two counts but quashed the conviction on the third count ( [C] v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1). The appellant was re-sentenced to imprisonment with a non-parole period of 18 months and a balance of term of 18 months on which he was eligible for release on parole in June 2008.
The Port Macquarie proceedings were the occasion for the offences the subject of counts 6, 11, 15 and 22. By a statement of agreed facts, the jury was told only enough of them to explain the calling of DM, CB and DB as witnesses in the proceedings, and was told that they did not concern allegations of sexual assault made by DM, CB, DB or SB.
The appellant gave the police a video recording of SB stating that the appellant did not make sexual advances to him, to enable the police to call SB as a witness at the trial. He also asked SB to sign various statements containing denials that he had ever been assaulted by the appellant. SB gave evidence in the present case that he told the appellant before the Port Macquarie hearing that he would not give evidence for the appellant or lie for him, and that threats had been made to him to entice him to make various recordings. This was the subject of count 15.
The appellant persuaded DB to attend Port Macquarie court and give evidence under oath that he had seen DB and the complainant in the Port Macquarie proceedings kissing, which in his evidence in the present case DB said was untrue. This was the subject of count 22.
The appellant tendered in the Port Macquarie proceedings the video Exhibit B in which DM and CB apologised for wrongly gossiping that he had molested them. This was the subject of counts 6 (guilty) and 11 (not guilty).
The final count, one of perverting the course of justice, is count 29. On 8 February 2009 the appellant approached TB at a supermarket in Taree. He asked TB to record a video saying that the appellant was a "top notch bloke" and that his brothers had lied in their allegations against him. TB gave evidence that the appellant had offered him $250,000. He told the appellant that he would consider the offer. Later he told the appellant that he did not want to do the interview.
The appeal
The appellant's former solicitors filed a notice of appeal on 17 December 2009. The appellant became unrepresented. As earlier mentioned, there were difficulties in bringing the appeal to a hearing. An earlier hearing date for the appeal was vacated.
The appellant filed numerous affidavits and submissions, the former largely being in the nature of submissions rather than factual and the latter containing non-evidentiary factual assertions. There were over 950 pages of these materials ("the appellant's submissions"). The issues raised included the conduct of the appellant's defence by his counsel and solicitor and his mental state at the time of the trial. Affidavits from counsel and the solicitor and from a consultant psychiatrist who had examined the appellant in connection with his trial and a post-conviction bail application were read by the Crown. The materials in appellant's submissions were supplemented by a complete set of appellant's written instructions to his lawyers. Counsel and the solicitor were cross-examined by the appellant.
We set out below the appellant's grounds of appeal in their final form. They will be repeated as appropriate when we deal with each.
"The appellant relies upon the following Grounds & Submissions in that the appellant lost a 'Significant possibility' of an acquittal because of the matters referred to below.
1. The incompetence of trial counsel led to a miscarriage of justice in that counsel -
a. failed to put the appellant's defence of being setup by one group of complainants to the court,
b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence,
c. failed to call upon crown witnesses for cross-examination,
d. failed to call upon defence witnesses to give evidence.
e. failed to defend the appellant with respect to the aspersion made by his Honour before the Jury that the appellant may be a 'MIND READER',
f. failed to put exculpatory statements and/or documents before the court and to the various Crown Witnesses as outlined in the submissions,
g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence,
h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions inter alia, no proof of evidence.
2. A miscarriage of justice was caused by the Crown -
a. failing to call upon Crown Witnesses to give evidence,
b. becoming emotionally involved in the trial,
c. breached it's duty of disclosure in concealing exculpatory evidence from the court,
d. misstating the true state of the evidence during the trial and in Her summing-up to the jury,
e. caused unfair prejudice to the accused in cross-examination by casting aspersions against his character in that he had lied to the court when in fact the appellant had told the truth and the Crown had evidence to support this.
3. The learned trial Judge erred and/or misled the jury as to the true state of the evidence in his Honour's summing-up, this led to a miscarriage of justice.
4. The learned trial Judge cast an unjustifiable aspersion against the appellant which was highly prejudicial this led to a miscarriage of justice.
5. The appellant was mentally ill shortly before and during the trial which led to a miscarriage of justice.
6. The appellant was under DURESS that if he exposed that the complainants had set him up his family would be gravely endangered this led to a miscarriage of justice.
7. The prosecutions were malicious carried out by police who were and are defendants in the appellant's statement of claims for malicious prosecution this led to a miscarriage of justice.
8. That the verdicts of the jury on all counts which the appellant was found guilty by the jury were unsafe and/or unreasonable and/or unsatisfactory and/or inconsistent having regard to the whole evidence at the trial. And the learned trial Judge had reservations about the guilty verdicts of the Jury; see his Honour's remarks, Sentencing and Bail transcripts 4 days, December 2009.
9. Fresh and/or new evidence as outlined herein was never put before the court his led to a miscarriage of justice inter alia Counsel did not know the "Full Carrot Video" existed and has never seen the "Todd Ellis" Video.
10. That the appellant is innocent on all counts and justice has miscarried the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal."
Ground of Appeal 1 - The incompetence of trial counsel led to a miscarriage of justice in that counsel -
a. failed to put the appellant's defence of being set up by one group of complainants to the Court.
b. failed to act on the appellant's written and verbal instructions before and during the trial including alibi evidence.
c. failed to call upon Crown witnesses for cross-examination.
d. failed to call upon defence witnesses to give evidence.
e. failed to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a "MIND READER".
f. failed to properly and/or adequately examine the appellant in chief and/or re-examine to establish his innocence with regards to the state of the evidence.
g. failed to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocents [sic] with regard to the state of the evidence,
h. failed in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence.
In response to this ground of appeal affidavits by Mr Roff, the appellant's solicitor at trial, affirmed 14 June and 29 September 2011, were read. Mr Roff was cross-examined by the appellant. Three affidavits sworn 14 June, 4 October and 13 October 2011 by Mr Webb, the appellant's counsel at trial, were also read. Mr Webb was cross-examined by the appellant. Affidavits of Ms Boulous, who had instructed for the Crown, were also read. Ms Boulos was not cross-examined.
We found Messrs Webb and Roff to be impressive witnesses. They were honest and, to the best of their ability, endeavoured to assist the Court by setting out what occurred between them and the appellant before and during the trial. Whilst their recollections were not perfect as to every detail, it was quite apparent from their evidence under cross-examination that each of them had a good recollection of these events and that they were reliable witnesses. Unless otherwise indicated, we accept the evidence of Messrs Webb and Roff.
It was common ground that despite strong advice of Messrs Webb and Roff to the contrary, the appellant gave instructions both written and oral that the hearing of all the matters should proceed together and that there should not be separate trials in respect of each complainant. The rationale behind the appellant's instructions in this regard was his contention that he had been "set up", that the complainants had conspired together to bring false accusations against him, and that he would be better able to establish that proposition in a joint trial.
The flavour of what turned out to be a difficult relationship between Messrs Webb and Roff on the one hand, and the appellant on the other hand, is set out in para 8 of Mr Webb's affidavit of 14 June 2011 where he referred to what happened at either a conference of 21 August 2008 or a conference of 9 October 2008 or both -
"8. [The appellant] said words to the effect -
'I've been set up and when the jury hear all of the complainants and all of the allegations in the one trial they will see that it is all just a set up. I have video footage of SB masturbating at my house. That's why SB is trying to set me up. I also have video footage of DM masturbating at my house six years before I caught SB out. This is why they are trying to set me up.'
[The appellant] also said -
'I want to relitigate the [complainant in the Port Macquarie proceedings] matters and the [TR] matters in my trial. I also want to raise my character to show that I am innocent and I won't take no for an answer.'
I said -
'Mr [C] you should plainly understand that I will not raise your character in any trial in which I represent you because you have a criminal record for dishonesty and a criminal record which includes convictions for allegations of a type that you are now facing. You should also note that I will not introduce in any trial any matters to do with [TR] or [the complainant in the Port Macquarie proceedings]. It would not assist you in a trial or trials of this type to raise the issue that you have convictions for dishonesty or to raise the issue that there have been previous allegations made against you concerning sexual misconduct and dealing with children for pornographic purposes. You should plainly understand that I will not budge on these issues and if you wish to obtain other counsel you are free to do so and you should do so if you want these things introduced. I will not introduce them, full stop. I will not introduce your character into a trial or the fact that you have had previous allegations made against you which are outside the matters that you are now charged with. You should think carefully about these things because it is open to you to retain another barrister who may have different views to those which I hold. You should give this careful consideration because once the trial or trials commence, given that you know that I will not budge on these issues, your insistence on bringing these matters into evidence will lead to my withdrawing from your trial. Criminal trials cost the people of New South Wales a fortune and it would be a shocking waste if some weeks into the trial it becomes necessary for me to withdraw'."
Before dealing with specific submissions by the appellant, we set out the principles applicable to a ground of appeal raising incompetence of counsel. In Monteiro v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said -
"[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include -
'2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. 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.' (p 685, per Gleeson CJ)
[156] Earlier, Gleeson CJ had said -
'As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.' (p 683)
[157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms -
'... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.' (p 684)
[158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said -
'16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks."
Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336 -
"Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere."
The task facing counsel at trial was a difficult one. Not only did he have to deal with a large number of counts of an essentially similar kind from six different complainants, but those counts included what were described as " public justice counts", ie doing acts intending to pervert the course of justice (counts 6, 11, 15, 21, 22, 24 and 29). Counsel also had to deal with counts involving the use of juveniles for pornographic purposes (counts 7 and 14).
Most of the material the appellant wished to rely upon which suggested that he had been "set up" by the complainants came from statements and videos taken by him from the complainants or other young persons. Counsel appreciated that the more statements taken by the appellant which were produced, the stronger the inference would become that the appellant was able to control and manipulate these young persons by getting them to sign statements that he had prepared or participate in videos which he had arranged. Neither at trial, nor in the appeal, did the appellant appear to understand the seriousness of this problem.
Additionally, some of the material in counsel's brief and which the appellant had in his possession could properly be classified as child pornography. In the case of the " carrot video", it was the appellant's position that he knew it was going to be made before it was filmed and that DB had assisted him by obtaining and providing a copy of the video to him. The appellant admitted to covertly filming young boys masturbating in his home and to downloading from the internet a picture of a young male in a bath with his face obscured masturbating which he tendered in the Port Macquarie proceedings (written instructions, 11 May 2009, pp 14, 16, 67). Throughout the proceedings, the appellant was the only person who produced such material either to the police or to a court. Counsel appreciated, but the appellant did not, that the more of this material which was used (the probative value of which was marginal at best), the more likely it was that the jury would draw an inference adverse to the appellant in respect of the pornographic photographs counts.
The concern and care with which counsel treated that material at the trial could not in any way be regarded as " flagrantly incompetent", and was well within his authority as counsel conducting a trial on behalf of the appellant. Many of the specific complaints now raised by the appellant involve a considerable element of hindsight and a failure to understand the double-edged nature of this evidence.
In oral submissions and in the document entitled Eighth Supplementary Submissions (appellant's submissions pp 898-904), the appellant set out his specific complaints concerning the conduct of the trial by counsel. Mr Webb responded to those complaints in his affidavits and in oral evidence when cross-examined.
(a) The failure to put the appellant's defence of being set up by one group of complainants to the Court
The real complaint of the appellant was not so much that counsel did not put the defence, but that counsel did not put the defence in the way in which the appellant would have liked it to have been put. Counsel clearly raised the matter in open court before the jury (AB638) when he said -
"Mr C's case is one which raises fabrication on the part of the complainants. Each of them individually and sometimes collectively ... "
Not only was this proposition put by counsel in his closing address, but it was comprehensively dealt with by the trial Judge in his summing-up.
On this issue, the appellant's case at trial was that he became concerned about rumours circulating in the Taree area that he was a paedophile. It seems to have been accepted that he was known as "Paedophile P"; there was evidence that when he drove CB to a party in April-May 1998 bottles were thrown at him and he was called that. He consequently formed the belief that he might be set up. It was this belief that was relied upon to explain why he took the unusual action of gathering what he believed to be exculpatory material from various young persons in the form of statements and videos and why he kept certain pornographic material (appellant in chief AB1886-1890, 1898; cross-examination AB1964-1965; defence closing address AB2131-2132, 2138; summing-up AB156-157, 218-219). The video made on 9 June 1998, Exhibit B, in which DM apologised for "add[ing] to the gossip by saying that he felt us up and molested us" and CB gave a similar apology is one such video; as we have noted, DM gave evidence that what he said was not true and he had read from a statement the appellant had given him.
DM and CB were cross-examined on the basis that they had collaborated to bring false allegations of a sexual nature against the appellant (AB818). SB was cross-examined to the effect that the appellant did not film the " carrot video" and that SB intended that video to make the appellant look guilty or to set the appellant up (AB1237). (As we have earlier mentioned, the appellant relied on the video recording SB saying "DB, P's home. Can we stop now" to show that the appellant was not recording it, but SB's evidence was that he was told to say that.) DB was cross-examined to the effect that he made false allegations against the appellant in order to avoid going to prison for an unrelated offence (AB1377-1383). MH was cross-examined to the effect that he had fabricated his evidence involving allegations of sexual assault and that what was contained in a statement which he signed on behalf of the appellant was the truth (AB1434-1443). TB was cross-examined to the effect that he made allegations against the appellant because he became aware that his older brothers had made such allegations and he wanted to support them (AB1497, 1525). This is not exhaustive. In our opinion, consistently with awareness of the dangers of using statements and videos taken by the appellant, the defence was maintained.
This sub-ground of appeal has not been made out.
(b) The failure to act on the appellant's written and verbal instructions before and during the trial including alibi evidence
During the trial, counsel adopted the procedure of checking with the appellant after the cross-examination of any contentious or important witness. He told the appellant that he would not move onto another witness unless he was satisfied that the appellant was happy. In his evidence in the appeal, Mr Webb said -
"A. The defence was run that you agreed to, which was the exculpatory videos concerning [DM, CB and SB] and otherwise that the case would be run in accordance with my forensic judgment having regard to your interests and it was a feature of the way in which your instructions were settled that we would pause along the way, as to say you and I and Daniel [Roff] or the instructing officer of the firm with us, to inquire are you okay with the way the case is being run, are you happy with the way in which cross-examination is being conducted. So that in my mind, because of the way that you provided the instructions it was best to pause along the way, stop and say, are you happy with that, is that okay and then keep proceeding. And that in my mind was the best safeguard to ensure that your instructions were complied with in the context of our agreements and that is what occurred along the way." (T14, 24 October 2011)
On what appears to be the only occasion when counsel did not follow this procedure, the appellant wrote a letter to his solicitors and sent copies to the trial Judge and the DPP (appellant's submissions p 127). The transcript records the Judge affording counsel time the following day to obtain further instructions (AB1408).
The trial transcript supports counsel's evidence to the effect that he obtained confirmatory instructions from the appellant throughout the trial (AB820, 900, 1198, 1249, 1260, 1398-1400, 1408, 1513, 1516, 1686, 1783, 1871, 1899 and 2020).
Both counsel and the instructing solicitor advised the appellant in clear and very definite terms that he should not give evidence. The appellant did not take that advice and gave evidence. This was a matter in relation to which the appellant would not change his instructions and counsel, against his better judgment, allowed the appellant to give evidence.
In addition to his written submissions, the appellant, in cross-examination, identified specific pieces of evidence which, he submitted, counsel should have used, but did not do so. These submissions are most appropriately considered under this ground of appeal. As can be seen, when counsel followed the appellant's instructions the result was often unsatisfactory. When he refused to do so, there were sound forensic reasons behind that decision.
It is clear from the transcript of the trial that counsel did not reject the appellant's instructions without good reason. When he thought there was a forensic advantage to be gained, he followed the appellant's instructions. Where the supposed forensic advantage was disproportionate to the prejudicial effect, counsel did not follow the appellant's instructions. As already indicated, on a number of occasions during the trial and in the course of the appeal, the appellant appeared to have no appreciation of the prejudicial effect likely to flow from evidence or lines of enquiry which he instructed counsel to use.
Statement of SB dated 6 December 2006
In accordance with instructions, counsel sought to cross-examine SB on the basis of a statement produced by the appellant which he said had been signed by SB on 6 December 2006. This was a statement in which SB denied that the appellant had committed any offences against him. When shown to SB, he said that it was not his signature and testified that he had never seen the document before (AB1258-1259).
The SB shower video
In accordance with instructions, counsel sought to introduce into evidence a pornographic video of SB masturbating in the shower (Exhibit 2). This was only done after SB had given evidence to the effect that the only pornographic video he had taken part in was the " carrot video" (AB1168). After being shown Exhibit 2, SB testified that he had no recollection of taking part in that video. Counsel then suggested to him that he had lied to cover up the fact that he had been caught out (AB1237-1238). Upon instructions, counsel put to SB (AB1263) that it was DM who took that video. SB denied this and said that he did not know a DM and could not remember ever making that film. When DM was recalled as a result of that evidence of SB, he said that he did not know SB and did not take part in the filming of the video (AB1601-1602). The result, of course, was that the jury was likely to think that the appellant took the video.
The Dean-Tim video
This was a video featuring the appellant and DB which was allegedly taken on 16 June 2001. In it DB, inter alia, told the appellant that TR told him that "he could make easy money or something by saying that [the appellant] put his hands down my pants or something". The admissibility and probative value of this document was discussed in court in the absence of the jury (AB1395-1400).
The ramifications and potential prejudice to the appellant of this video were significant, in that it could open up the issue of the appellant having also sexually assaulted another young adolescent boy, ie TR. Counsel sought instructions on the tender of this video (AB1400). Oral instructions not to tender it were given, the appellant was asked to sign confirmatory written instructions, but he wrote "do not" into the instructions to reverse their meaning. He then changed his instructions again, and returned to instructions not to tender the video.
Counsel dealt with the issue of how the words "do not" were added to the instructions in paragraph 4 of his affidavit of 4 October 2011. There counsel said -
"4. In the ninth supplementary submissions the Appellant refers to his having written in 'do not'. This is correct. In the course of the trial, see T851, his Honour made some remarks regarding the potentially prejudicial nature of certain evidence. These remarks were relevant in my mind to the Dean-Tim video. This video was not intended in the context of the defence case to be tendered or pressed because it introduced [TR] into the trial, raising a further allegation of sexual misconduct against [the appellant], not otherwise in the trial. [The appellant] had previously agreed to keep [TR] (and [the complainant in the Port Macquarie proceedings]) out. Mr Roff then proceeded to draft written instructions at the bar table reflecting and confirming [the appellant's] previously agreed position on this issue. Mr Roff then approached the dock to ask [the appellant] to sign the instruction. [The appellant] then wrote the words 'do not', clearly indicating he wanted the tender and/or or the issue pressed. At this point Mr Roff approached me and indicated [the appellant's] position. I then walked to the dock with Mr Roff and spoke to Mr C in words to the effect -
'Counsel: Mr C I advise you against pressing this issue. It will bring [TR] into the trial.
[The appellant]: All right do what you think is best, I'll trust you.'
I then turned to Mr Roff in the presence of Mr C and said 'Daniel, are they my instructions? That is not to press the issue'. Mr Roff then said yes they are. I then indicated my instructions to the court."
Mr Roff gave evidence concerning this issue (T35.4, 14.10.11) -
"A. Mr C had said to us he wanted the Dean Tim video, as he called it, played to the jury. Dr Webb indicated the same to his Honour Judge Norrish and Judge Norrish made certain comments regarding potential dangers of that to Mr C in the circumstances. Hearing that I began to prepare a file note on the basis [the appellant], being capable of intelligence in some circumstances, would agree the tender would not be pressed. When I presented him with that document he wrote in words 'do not' and then signed it down the bottom. I took that back to Dr Webb, showed Dr Webb what [the appellant] had said and asked Dr Webb to come with me and talk to [the appellant]. We both went back to the dock, explained the situation to [the appellant] and [the appellant] said what I have written down the bottom but refused to sign it again after having crossed out the words 'do not'. So I made a note of what he had said given that something may arise if Mr C complained about us afterwards.
Q. Were they the words he used?
A. They were the words he used.
Q. 'I trust youse'?
A. 'I trust youse'."
The version of events described by counsel and the instructing solicitor is consistent with the trial transcript (AB1396-1400).
The decision by counsel not to press the tender of this video was undoubtedly correct. Its benefit to the appellant's case was problematic at best, but its prejudicial effect would be inevitable and substantial. The tender of that video could only have damaged the appellant's case.
The Todd Ellis video
The Crown sought to call Todd Ellis as a witness in its case. The evidence would have been relevant to counts 21 and 24 which were public justice offences. The Crown case was that the appellant persuaded DB (count 21) and attempted to persuade MH (count 24) to give false evidence in his private prosecution against TR2.
Count 21 involved the appellant persuading DB to falsely state that he had seen an incident where TR2 had tried to drive into the appellant. DB gave evidence in the Taree Local Court that he had seen such an incident. At trial, he said that the evidence he gave for the appellant at the Taree Local Court was false (AB1354-1358). TR2 was called at the trial and gave evidence that he had not been involved in any such incident (AB1613).
Count 24 involved an attempt by the appellant to have MH give evidence in those same proceedings by promising him money. MH signed a statement prepared by the appellant, the details of which MH said at trial were not true. The statement said that he had witnessed TR2 try to drive into the appellant. He said that he signed the statement because of the offer of money and his immaturity (AB1431).
Todd Ellis had also signed a statement prepared by the appellant which stated that he had witnessed the incident. On 1 April 2009, the appellant sent a copy of this statement to police asking them to investigate and to call Todd Ellis at trial. Police located Todd Ellis and obtained a statement from him on 29 April 2009 (AB1572-1580). When first shown the statement (purported to have been signed on 12 November 2003), Todd Ellis had no recollection of ever having signed it. After speaking to DB, he was reminded of an incident when he was aged 14 when the appellant came to the home of an acquaintance, produced a statement and asked him to sign it. DB was present at the time. Todd Ellis said that he signed it because the appellant said he would give him some money. Under cross-examination on the voir dire, Todd Ellis confirmed that what was written in the statement he signed for the appellant was false. He said that he was not present when the incident was said to have occurred and did not see anything (AB1584).
At trial, the Crown sought to use the evidence of Todd Ellis in two ways -
(1) as a piece of circumstantial evidence to show that the incident did not happen; and
(2) as tendency and coincidence evidence consistent with the appellant preparing false statements and arranging for them to be signed by young persons.
The defence objected to Todd Ellis being called in the Crown case. A voir dire was held (AB1572-1590). The Judge ruled that the evidence of Todd Ellis was inadmissible (AB59-93). There is no ground of appeal challenging his Honour's ruling.
At trial, the appellant gave evidence that Todd Ellis was present at the time of the incident and ran across the road to ask him if he was "OK". The appellant's complaint on appeal was that Todd Ellis was not called by the defence at the trial and that counsel did not see the " Todd Ellis video". The appellant said that the video recorded an interview between him and Todd Ellis about the incident involving TR2 in which Todd Ellis supported his version of events.
Had the evidence of Todd Ellis and the video been led in chief in the appellant's case, this would not have assisted him. When the appellant made a statement to police concerning the incident, he did not disclose that Todd Ellis was an eyewitness. The evidence of Todd Ellis on the voir dire was that he did not see the incident and that he was induced by the appellant to sign a false statement by the offer of money. The introduction of yet another video of a young person reciting matters which he said were false and which he was put up to by the appellant, would not have assisted the appellant.
In any event, the Todd Ellis video would only have become relevant had Todd Ellis given evidence at the trial. His evidence was ruled inadmissible by the trial Judge and so that issue did not arise. Finally, counsel said that he had never been provided with a copy of the Todd Ellis video.
The "full carrot video" or "second carrot video"
The appellant submitted that, in accordance with his instructions, counsel should have tendered the "full carrot video" or "second carrot video " . At trial, a " carrot video" was tendered (Exhibit D). In the appeal, the appellant said that the "second carrot video" was a longer version of that which had been tendered at trial. Despite a number of requests by the Court, the appellant was not able to articulate what was in the "second carrot video" which would have provided more assistance to his case at trial than had already been provided by Exhibit D. Exhibit D was used to cross-examine SB, see [75] above.
The defence advanced at trial in respect of count 14 (which was based on Exhibit D) was that the appellant was not present or involved in the actual making of the video (AB2131-2131), but that it had been made by DB and SB. Counsel agreed that the appellant had told him that there was a "second carrot video" which was longer. Neither he nor Mr Roff had been provided with a copy of the longer video nor had they ever viewed it. Notwithstanding that counsel did not see the longer video, he was aware of it and proceeded on the basis that it would not assist the defence. It is not clear to us how the fact that the appellant was also in possession of a longer version of this video, or may have been involved in editing or otherwise manipulating a copy of the longer version, would have assisted the appellant at trial. This is particularly so when the appellant was not able to identify for this Court the difference between the longer "carrot video" and Exhibit D which would have assisted him at trial. The matter was further complicated at the hearing of the appeal by the appellant's statement that there was yet a third " carrot video", the contents of which he did not further describe.
Not only was counsel entitled to make the forensic judgment which he did in relation to the " second carrot video", the appellant has failed to demonstrate how he was disadvantaged by the longer " carrot video" not being tendered.
The "Car Cam video"
Mr Webb referred to this document at p 14 of his affidavit of 14 June 2011 as follows -
"Webb: 'What is the video about of you having a phone conversation, apparently with SB and a female? What is that doing in the material you have provided to Mr Roff?'
Appellant: 'That relates to a conversation I had with SB.'
Webb: 'Why was the conversation filmed in the car showing you to be talking on the phone - showing just you and the car?'
Appellant: You'll be able to tender that, the video makes it look more realistic.'
Webb: 'Do you mean that the video is just a device to make it look more realistic?'
Appellant: 'That's right. It's better if people see as well as hear. It will make the conversation seem more realistic'.
Webb: 'In what way is it a device?'
Appellant: 'It's not in real time. The video is at one time and the talking is at another time. I prepared the video and the audio for my defence'."
Counsel told the appellant that he would not use evidence which had been altered in that way since this was tantamount to misleading the Court. At pp 230-231 of the bundle of appellant's written instructions the appellant agreed that this evidence should not be used. The written instructions set out the danger associated with such a tender, ie it was consistent with the Crown case of a tendency on the appellant's part to fabricate and manipulate evidence.
Counsel's refusal to rely upon that evidence was forensically sound and the appellant has failed to show that he suffered any disadvantage by that video not being tendered.
Alibi
The appellant initially instructed counsel in 2008 that he was not present at a number of the alleged crime scenes (counsel's preliminary advice, 5 August 2008 at appellant's submissions p 98). The appellant later instructed counsel that he did not have an alibi. In relation to that matter, Mr Webb said in his affidavit of 14 June 2011 -
"9. I cannot recall whether it was in the conference of 21 August or 9 October at Chambers that I raised the issue of alibi with [the appellant]. This occurred in one of these two conferences.
10. I said to [the appellant]: 'Mr C in relation to any of the matters that you are aware of is it the situation that you may have in fact been somewhere else, other than the place where the alleged conduct is said to have occurred?' Mr C said: 'Not really. All of the allegations basically relate to the area in which I lived and many of the allegations relate to things said to have happened in my own home'. I said: 'You need to think clearly about this issue because if you are going to raise any issue going to alibi Mr Roff needs to know well before any trial. An alibi means that you are saying that when something happened you were in fact somewhere else, positively identifying where it was that you were in terms of place and time. Mr Roff needs to provide notice to the Crown as to any issue of alibi. Alibi can't be raised on the run. It requires notice to the Crown so that the police can make enquiries. Do you understand that?' Mr C said: 'Yes but I don't have an alibi because I was living in the area where these things are said to have happened and many of them happened on the Crown case in the house that I was living at. So no I don't have an alibi for any of the matters that I am aware of.'
11. The issue of alibi was raised by me in conference and not by [the appellant]."
As a result of those instructions, no alibi notice was ever served. The appellant was present in court when counsel told his Honour that he was not running alibi (AB1863, 1865-1866) and there is no record of any complaint made by him at the time.
The appellant submits, at appellant's submissions p 80, that the two matters where he would have relied upon alibi were in respect of counts 2 and 17.
Count 2 involved DM staying at the home of the appellant's mother in Rozelle. The appellant said that he stayed that particular night at his sister's house nearby. He said that SC, the friend of his son who had gone to Sydney with them, could corroborate this.
It was never alleged, nor was it the Crown case, that the appellant had stayed the night at his mother's home. The evidence of DM (AB688-689, 764) was that he awoke just as he was ejaculating to find the appellant giving him oral sex. The appellant then left the room. In cross-examination, DM said " He may well have left after that happened, but what I said was true, that's a fact. That's what happened he was there and that was him". No statement was ever obtained from SC, nor was he subpoenaed or required to be called in the Crown case by the defence.
Count 17 involved DB being sexually assaulted in the appellant's car. DB's evidence (AB1293-1299) was that the offence occurred after they had left JR with JR's stepfather. The appellant said that JR would be able to give evidence that DB had stayed that night with him and his stepfather and that the offence could not have occurred.
Police obtained a statement from JR on 5 May 2009, in which he said that the appellant had already seen him and had obtained an affidavit from him. Both the police statement and the affidavit obtained by the appellant are annexures to the affidavit of Ms Boulous sworn on 29 September 2011. The statement made by JR to the police and that obtained by the appellant are quite inconsistent on this issue. The statement made by JR to the police does not exclude the offence in count 17.
The police served on the defence a copy of the statement made by JR and also a copy of the affidavit which the appellant had obtained from him. The witness was made available, but was not required to be called by defence counsel.
Mr Webb referred to those matters in his affidavit of 4 October 2011 as follows -
"5. On the issue of alibi, [the appellant] gave specific instructions prior to the trial that he did not have an alibi available to him of which he was aware. In respect of count 2, at [the appellant's] mother's place at Rozelle, [SC] did not in my view raise alibi. [SC] was present at the house overnight, with the question at trial being whether or not [the appellant] returned to the house during the night (as [the appellant] instructed me that he was staying at his sister's house nearby, and returned the following morning bringing croissants for breakfast).
6. [JR] was made available by the learned Crown prosecutor at trial and was available to be called at the defence request. [the appellant] was advised of this matter during the course of the trial. I expressed a concern in the context of the trial raising public justice counts, that [JR] had previously been approached by [the appellant] to provide a statement. I raised with [the appellant] the issue that this matter might be dangerous. [the appellant] then indicated that he did not require [JR] to be called. Otherwise [JR] had initially been raised by [the appellant] as a prospective witness on the issue of character, not alibi."
Mr Webb was not cross-examined as to alibi by the appellant in the appeal.
The advice which counsel provided to the appellant in relation to JR was forensically sound. Any evidence from SC would not have provided an alibi. The appellant has failed to establish that he had an alibi defence available and that his case at trial was damaged by counsel's failure to raise that issue.
This sub-ground of appeal has not been made out.
(c) Failure to call upon Crown witnesses for cross-examination
No submissions were made by the appellant specifically directed to this ground of appeal. In any event, the ground of appeal is not made out. Where appropriate, the Crown witnesses were vigorously cross-examined. Consistently with his evidence, however, counsel was careful to avoid referring to the TR2 proceedings and the Port Macquarie proceedings in that cross-examination.
(d) Failure to call upon defence witnesses to give evidence
The appellant's complaints in this regard have already been dealt with in respect of the matters raised in sub-ground (b) above.
This sub-ground of appeal has not been made out.
(e) Failure to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a "MIND READER".
This is a reference to an observation made by his Honour in the course of the trial at AB1970. The appellant was being cross-examined. The context of his Honour's observation was -
"CROWN PROSECUTOR: Q. In the first sentence of that letter you say that SB has been living with you for twelve weeks?
Appellant: A. Yes.
Q. So it would be correct to say that he was living with you in April 2004 wouldn't it?
A. Well I believe what I should have put is - no - if you read my letter, "SB has now been in my care for some twelve weeks". Probably I should have put approximately twelve weeks and I can give you the statement here that gives you the exact date SB came into my care, the day I took him to DOCS, you've got it in your files Miss.
HIS HONOUR: No, no please Mr C.
APPELLANT: Sorry.
HIS HONOUR: Don't volunteer things that you say people have got because they may not have them - I don't know.
APPELLANT: They served on you your Honour.
HIS HONOUR: No, you may be a mind reader for all I know but you can't keep on asserting that people have got things, right. Mr C. I am not going to ask you again. I'm going to have to cut you off because it's not an answer to the question.
APPELLANT: Yes, sorry.
HIS HONOUR: You're not answering the question, right.
WITNESS: Okay.
CROWN PROSECUTOR: Q: I understand you agree that you wrote a letter to DOCS on 1 July 2004.
A. Yes.
Q. Saying that SB had been in your care for some twelve weeks?
A. That's right, yes.
HIS HONOUR: And by that you mean approximately twelve weeks?
A. Yes.
Q. In answer to the Crown, can he find a document that assists him to remember the date that SB came into his care, Madam Crown?
CROWN PROSECUTOR: Well yes.
HIS HONOUR: Right, without telling us what the document is, see if you can find the relevant document there in fairness to the earlier answer you gave." (AB1969.33 - 1970.31)
During the appellant's evidence his Honour had warned him (for his own benefit) not to volunteer information that was not responsive and to listen carefully to each question (AB1885, 1922, 1924, 1925, 1951, 1958). The appellant did not heed those repeated warnings. The comment by his Honour at AB1970 was made against that background. Even following this comment by his Honour, the appellant continued to volunteer information (AB1978, 1979, 1983, 1998, 2009, 2010 and 2014).
The intervention of his Honour was designed to assist the appellant, not to belittle or demean him in the eyes of the jury. When using the expression "mind reader", his Honour was doing no more than attempting in a perhaps colourful way to direct the appellant that he should only answer the question which he was asked and not try to anticipate future questions.
Given the circumstances in which his Honour made this comment, there was no occasion for counsel to intervene. On the contrary, intervention by counsel may well have been counter-productive and have sent a message to the jury which was adverse to the appellant's interest.
This sub-ground of appeal has not been made out.
(f) The failure to put exculpatory statements and/or documents before the Court and to the various Crown witnesses as outlined in the submissions.
This has already been dealt with in relation to the specific issues identified in sub-ground (b). The concern of counsel (and it was a legitimate concern) was that the production of too many exculpatory statements and videos would strengthen the inference that the appellant was able to control and manipulate young persons by getting them to sign statements which he had prepared and on most occasions witnessed. This would be particularly dangerous in relation to the public justice counts; it would also be dangerous in relation to the other counts as showing the appellant's influence over the young persons.
Counsel's decision to rely upon some exculpatory statements and not on others was forensically sound, and the appellant has failed to establish that the refusal by counsel to put all available exculpatory statements and videos before the Court damaged his case.
This sub-ground of appeal has not been made out
(g) Failure to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocence with regards to the state of the evidence.
It is clear from the affidavits of Mr Webb and Mr Roff that a comprehensive proof of evidence was prepared before the appellant gave his evidence and that discussions took place with the appellant in relation to that proof before he gave his evidence. Mr Roff in his affidavit of 14 June 2011 said -
"34 On or about 11 June 2009 I received from Dr Webb a draft proof of instructions in relation to PFC. He said to me words to the effect of "Have a look at this and see if it accords with your recollection of his instructions. We will go through it with [P] downstairs and see if he agrees". I did not make any suggested amendments as it appeared to me to accord with the instructions provided by PFC. I do not recall any amendments or corrections subsequently being made by PFC. These instructions were the result of having reviewed the material provided by the prosecution and PFC, as well as having spoken with PFC in great detail over numerous occasions."
The evidence in chief and in re-examination of the appellant is fully consistent with the case for the defence which was put to the complainants and the Crown witnesses in cross-examination. The presentation of this evidence was, however, marred by the appellant's tendency to give non-responsive replies to questions and to volunteer information. The reasons why no evidence was led concerning the TR2 proceedings and the Port Macquarie proceedings have already been given.
This sub-ground of appeal has not been made out.
(h) Failure in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence.
A proof of evidence was prepared and the structure of the evidence in chief led from the appellant is consistent with the existence of such a proof of evidence. At para 22 of his affidavit of 14 June 2011 Mr Webb set out the philosophy which underpinned the defence case and how he explained that to the appellant. He advised the appellant that he intended to run the defence case in the following way -
Where the appellant had made exculpatory videos in respect of any of the complainants, counsel intended to rely on that video only as the best and most transparent record of his not engaging in sexual misconduct with that person.
Counts 5 and 7 concerned incidents at different times with different complainants. Before going to the asserted inconsistency, all of counts 1 to 5 essentially depended on the evidence of DM, and there is a prior matter of the guilty verdicts on counts 1 to 4 but the not guilty verdict on count 5.
In the case of the incident the subject of count 5, DM said that the appellant was driving him back to Newcastle, the appellant stopped at the side of the road and asked him to "do more photos for him", and got him to take his clothes off and masturbate and ejaculate on the front of the car while the appellant took photographs. However, when DM was asked for some detail he was unsure of the time of year (even whether it was cold when he took his clothes off) or the time of day, or whether he was given money and the amount. That is not to say that DM's other evidence was given in precise detail, but in our view a reasonably available explanation for the jury's acceptance of DM in relation to other counts but not in relation to count 5 is that, on careful consideration as directed by the trial judge, they were not satisfied to the requisite standard as to the particular incident the subject of count 5; see in particular part of the passage from MFA v The Queen cited in Jovanovksi v Director of Public Prosecutions (NSW) at [19], which bears repeating -
"A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others."
Returning to the asserted inconsistency, the not guilty verdict on count 5 meant little if anything for the jury's acceptance of the evidence of the complainant CB in relation to count 7, a different complainant speaking of a different incident (when neither DM nor CB was present at the other incident). In our opinion, miscarriage of justice through inconsistency of verdicts has not been shown.
We have considered the significance, if any, of the guilty verdict on count 7 (CB and pornographic photos) but not guilty verdicts on counts 8, 9 and 10 (CB sexual assaults). The evidence of CB as to count 7 was supported by evidence of CC. CB told CC that the reason the appellant was giving him money was because he was letting the appellant take pornographic photos of him. He did not mention sexual assault (AB940). It was open to the jury to decline to be satisfied beyond reasonable doubt as to the sexual assaults of which CB gave evidence, but to be satisfied beyond reasonable doubt when there was support through the evidence of CC.
We have also considered the significance, if any, of the guilty verdicts on counts 16, 17, 19 and 20 (DB sexual assaults) but not guilty verdict on count 18 (DB sexual assault). Here again, the evidence of DB was particularly lacking in detail. In our opinion, that is a reasonably available explanation for the jury declining to accept DB in relation to count 18, while being satisfied beyond reasonable doubt in relation to the other counts.
(b) "Unsafe and/or unsatisfactory"
The ground of appeal in this respect also invokes s 6(1) of the Criminal Appeal Act . The test was originally stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 -
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
A recent description of the task of this Court may be found in SKA v The Queen [2011] HCA 13, in the joint judgment of French CJ and Gummow and Kiefel JJ -
"12. This test has been restated to reflect the terms of s 6(1) of the Criminal Appe a l Act . In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13. The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'
...
14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M , Mason CJ, Deane, Dawson and Toohey JJ stated:
'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
In SKA v The Queen the trial judge had questioned in his remarks on sentence whether the jury should have doubted the complainant's veracity. Their Honours observed at [115] that the trial judge's opinion was based on his assessment of the evidence, being "the very task which it was for the Court of Criminal Appeal to undertake independently for itself", and did not depend on any advantage from seeing and hearing the witnesses. There had been no error in this Court effectively putting aside the trial judge's observations. The appeal was dismissed.
In the present case the trial judge's observations were largely his Honour's assessment of the evidence, although they included that it "must be fairly said that none of the brothers B was a particularly impressive witness for a range of reasons". But his Honour also said that it was "clear that the jury accepted the essential truth of their evidence", and he referred to them being "convincing" as to the extent the appellant "would have had them in thrall", and to "an essential truth in their evidence of having a particularly close relationship with the prisoner at the relevant time". It is evident, in our view, that his Honour's own impression was one of essential truth in their evidence despite some unimpressive aspects. We do not think that his Honour's observations weigh heavily in the task which we must perform for ourselves.
The trial judge's observations were nonetheless adopted for his submissions by the appellant.
One observation was to the effect that it was difficult to understand how it could have been that the brothers B did not discuss the sexual assaults between themselves, or that DB and SB would not have warned TB against the appellant's attentions.
There was some evidence of SB asking TB whether the appellant had done anything to him, and TB replying that he had not because he did not want SB to laugh and did not want to feel humiliated. There was evidence that when TB spoke to DB before going to the police he was told that DB didn't want to know about it. TB said that he did not complain to anyone after the first incident (count 25) because he was afraid and uncomfortable and did not want anyone to know because they might laugh at him (AB1458) and as to the second indictment (count 26) that he felt humiliated and very embarrassed (AB1461). There was no significant exploration in the evidence of either discussion or absence of discussion between the brothers B, or warning or absence of warning to TB, and no mention of either matter in closing addresses. That may have been because there was a deal of evidence from complainants that they were embarrassed, scared, and tried to put aside what had happened. We refer to some of this evidence at [367] below. Exploration by the appellant's counsel may only have brought out the effect of the appellant's conduct on the brothers, to the appellant's detriment.
Particularly when nothing had been made of it in the defence case, we do not share the reflection upon the jury's fact finding which may have concerned the trial judge. The jury could readily have seen the brothers B as largely each keeping to himself distressing encounters which he did not fully understand and of which he was ashamed, and it should not be overlooked that the trial judge found the brothers B "convincing, particularly DB and SB, as to the extent to which [the appellant] would have had them in his thrall"; that is, under his influence.
The trial judge also observed that the CCTV did not support "a critical aspect" of TB's account of occurrences in a supermarket in Taree. This concerned count 29. TB gave evidence of the appellant approaching him in the supermarket about making a video interview, with a first conversation in one of the aisles and a second conversation which he initially said was near the cashiers and later said was back near where he had been first approached; he said he had earlier "muddled up" where the second conversation had been. Stills from the CCTV were then produced (by the Crown) showing the cashiers' area and no conversation; CCTV footage for the aisle area was not available. TB was recalled, and agreed that the stills did not show him and the appellant near the cashiers.
With respect to his Honour, we do not see this as "a critical aspect" of TB's account. In his evidence, the appellant agreed that he encountered TB in the supermarket on the day in question. The encounter was at the end of one of the aisles. He denied offering money or asking TB to make a video recording: according to the appellant, he told TB that he could not talk to him as he was a Crown witness (although he did give him some money to buy a drink). TB's correction of his evidence was a matter for the jury to take into account, but in our opinion it was well open to the jury to consider that it did not detract from the truth of his account of the encounter with the appellant.
We go then to the appellant's submissions concerning count 12. There is no substance in his complaint. We have earlier referred to the evidence concerning SB's age and when he was living with the appellant. The Crown Prosecutor drew attention to all the evidence in her closing address, and invited the jury to find that SB had meant October 2003, not October 2004, as was consistent with his father's evidence. This was a matter for the jury, and in our view it was entirely open to the jury to have found that the incident occurred in October 2003, during the period stated in count 12 and while SB was living with the appellant.
Although without more focussed submissions from the appellant, we must make our independent assessment of the evidence. Having in mind the jury's advantage in seeing and hearing the evidence, we must ask ourselves whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, and we must ask ourselves that question in relation to each of the counts on which a verdict of guilty was returned. We have undertaken that task.
We have already adverted to the not guilty verdicts on count 5 in relation to DM and the not guilty verdicts on counts 8 and 9, in relation to CB, see at [24] and [27] above. For count 8 it was alleged that at the lookout the appellant performed oral sex on CB to help him arouse himself, after which the photographs were taken. For count 9 it was alleged that when in the appellant's house CB was taken to a spare bedroom where several photographs were taken. The appellant asked CB to perform oral sex for him, CB refused, and the appellant then performed oral sex on CB. There was a verdict by direction on count 10; the evidence concerning that count was then before the court only as context evidence. CB gave evidence of the appellant rubbing his penis between CB's legs while they were in bed at the Mayfield motel. He was confronted with a statement made in February 2006, when he undertook to give evidence and thereby received a discount on a sentence for murder, in which he said that he had been anally penetrated. He said that was untrue.
It is likely that this caused or contributed to causing the jury's lack of satisfaction beyond reasonable doubt on counts 8 and 9. The trial judge gave the jury a particular warning that CB's evidence may be unreliable because he made the statement on the understanding he would receive a discount on his sentence, and reminded the jury of a number of other matters material to its reliability. We do not think, however, that conviction on count 7 was not open to the jury, who may have been prepared to accept CB's evidence that he was photographed but not the further detail of sexual activity at the time. The jury's lack of satisfaction in counts 8 and 9 does not have the wider effect that conviction on other counts involving other complainants was not open to the jury.
As to the other complainants, the Crown case on each count depended heavily on the evidence of the relevant complainant, with which the evidence of the appellant directly conflicted. The credibility and reliability of the complainants' evidence was central to the jury's satisfaction of guilt beyond reasonable doubt.
The jury were given clear and detailed directions as to how they should assess the credibility of the complainants and other witnesses. They were told that it was a matter for them to assess truthfulness, reliability and accuracy. They were warned about the dangers of judging demeanour and the manner in which witnesses gave their evidence. They were directed to take into account the relationship witnesses may have had to one another and any contact or opportunity they may have had to discuss matters that may have affected or contaminated their recollection. They were told to take into account inconsistencies in the evidence of witnesses, and to consider how those inconsistencies might reflect upon their credibility and reliability. They were told that they were not obliged to accept all of what a witness said, and might accept some of what a witness said and other parts of another witness' evidence in order to determine the facts.
Some of the complainants did not give evidence as upright citizens. Apart from CB being in gaol for murder, DB provided his police statement when he was awaiting sentencing for "glassing", and had received a discount on his sentence. He had gone to prison. Lesser anti-social behaviour of other complainants appeared in the evidence, for example, use of alcohol and illicit substances.
The complainants were also cross-examined as to delay in going to the police or otherwise complaining, and as to inaccuracies and inconsistencies in their evidence.
There was varying delay. However, there were explanations of embarrassment and humiliation, and being scared of the appellant. For example, DM said (AB740) "It was embarrassing. It's not something that I talked about. It's something that I tried to put behind me ... ". SB said that he did not go to the police "because I was worried about threats that [the appellant] had given me beforehand and I was scared and embarrassed and I didn't have the courage" (AB1129). MH felt ashamed and was embarrassed; he didn't tell the police in 2006 because his mother was there. We have referred to TB at [355] above. This is not exhaustive. As the trial judge noted, there was "convincing evidence of a profound influence of the appellant over these youths".
As to inaccuracies and inconsistencies, examples on which the defence relied at trial are that CB said that he was present when the appellant took some photographs of DM, but DM said that no one else was present (the occasion was not the subject of a charge); that DB first told police that he was 95 per cent sure that a photograph shown to him in 2006 was of him in a bath in a Mayfield motel, but it was pointed out by police that the motel did not have baths and he accepted that he was wrong although "I remember being photographed in a bath at one stage" (AB785), "There was a few occasions that he's taken photos and that was a long time ago, its very hard to remember" (AB789); and that SB gave inconsistent versions of a car accident in which he was involved with the appellant.
However, the complainants were giving evidence some years (up to twelve years) after the events in question, and it is evident from the transcript that some of them found giving evidence difficult if not traumatic. Some inaccuracy and inconsistency is not unexpected in these circumstances, and the observations of McHugh J in M v The Queen at 534 are apposite -
"63. It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."
The defence also said at trial that DB had said that the evidence he gave under oath for the appellant in the TR2 and Port Macquarie proceedings was false. It was also submitted (in effect) that SB should not be accepted because he did not complain to Dr Akerman, a psychiatrist to whom he was taken by the appellant. (SB had said that he did not say anything because the appellant was either in the room or waiting outside.)
All these were matters properly for the jury's consideration. There was some third party evidence supportive of the evidence of various of the complainants, for example (apart from CC's evidence concerning pornographic photos of CB) evidence of MM of complaint by SB about the appellant sexually assaulting him and KE of the appellant giving SB papers to memorise for court and SB telling the appellant that he was not going to lie for him. We do not attempt to go into detail or to be exhaustive in these reasons, but have had regard to the evidence as a whole.
It was starkly a matter for the jury whether they found the complainants' evidence credible and reliable, to the point of satisfaction beyond reasonable doubt. They saw and heard the complainants give their evidence. In our opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on each of the counts on which he was found guilty.
This ground of appeal has not been established.
Ground of Appeal 10: That the appellant is innocent on all counts and justice has miscarried and the appellant relies globally on the contents and/or all matters raised in this entire document for this Appeal.
We do not understand this ground of appeal to carry any independent force or submissions.
Order
The appeal is dismissed.
**********
Amendments
13 June 2012 - typographical errors
Amended paragraphs: 10, 12, 62, 75, 119, 247, 313, 331, 346, 355, 364, 367 and 371
Decision last updated: 13 June 2012
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