R v Anning - [2013] NSWDC 285

District Court

New South Wales

Medium Neutral Citation: R v ANNING [2013] NSWDC 285
Hearing dates: 28/11/2013
Decision date: 18 December 2013
Jurisdiction: Criminal
Before: S Norrish QC
Decision:
Counts 1, 2, 3,4,6,7,9,10 and 13 - guilty
Counts 5 and 11 - guilty of attempting to commit.
Counts 8, 12 and 14 - not guilty.

Catchwords: CRIMINAL - Trial by judge alone, sexual assault, delay in complaint, tendency evidence, context evidence.
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Crimes Act 1900
Cases Cited: R v VN [2006] VSCA 111
R v Z (2000) 3 All E R 385
R v Howard [2005] VSCA 235
R v Mai (1992) 26 NSWLR 371
Giorgianni v The Queen (1985) 156 CLR 473
Fleming v The Queen (1998) 197 CLR 250
The Queen v Storey & Anor (1978) 140 CLR 364
Rogers v The Queen (1994) 181 CLR 251
R v Carroll (2002) 213 CLR 635
R v Fletcher (2005) 156 A Crim R 308
R v DAO [2011] NSWCCA 63
Colby v The Queen [1999] NSWCCA 261
BP v R [2010] NSWCCA 303
R v Shamouil (2006) 66 NSWLR 228
R v PWD [2010] NSWCCA 209
DPP v Dupas [2012] VSCA 328
R v Ford [2009] NSWCCA 306
R v Li [2003] NSWCCA 407
HML v The Queen (2008) 235 CLR 334
King v The Queen (1986) 161 CLR 423
Texts Cited: Criminal Law in NSW, LBC (1971) - Watson and Purnell Vol 1
Category: Principal judgment
Parties: Crown
Henry Alfred Anning - offender
Representation: Ms K Trail - Crown
Mr A Norrie - offender
Director of Public Prosecutions
Newtons Law

File Number(s): 2007/13848/15937

Judgment

Introduction

The accused was arraigned on 28 October 2013 on 14 counts in an indictment. To all counts he pleaded that he was 'not guilty'. The specific counts or charges brought against him allege:

Count 1: That he between 30 September 1975 and 31 December 1977 at Morisset in the State of New South Wales did commit the crime of buggery with NG.

Count 2: That he between 30 September 1975 and 31 December 1977 at Morisset in the State of New South Wales did commit the crime of buggery with NG.

Count 3: That he between 1 January 1976 and 31 December 1977 at Morisset in the State of New South Wales did commit an act of indecency with FG, a male.

Count 4: That he between 1 January 1978 and 31 December 1978 at Morisset in the State of New South Wales did commit the crime of buggery with KW.

Count 5: That he between 1 January 1981 and 31 December 1982 at Wyee in the State of New South Wales did commit an act of bestiality with a dog.

Count 6: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales did commit an act of gross indecency with DC, being then under the age of 18 years.

Count 7: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years.

Count 8: That he between 11 July 1985 and 1 August 1986 at Wyee in the State of New South Wales you did commit an act of gross indecency with DC, being then under the age of 18 years.

Count 9: That he between 1 December 1985 and 1 March 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years.

Count 10: That he between 1 December 1985 and 1 March 1986 at Wyee in the State of New South Wales did have homosexual intercourse with DC, being then between the age of 10 and 18 years.

Count 11: That he between 1 January 1986 and 31 May 1987 at Wyee in the State of New South Wales did have homosexual intercourse with RR, being then between the age of 10 and 18 years.

Count 12: That he between 1 January 1987 and 31 December 1988 at Freemans Waterhole in the State of New South Wales did have homosexual intercourse with GG, being then between the age of 10 and 18 years.

Count 13: That he between 1 January 1987 and 31 December 1988 at Freemans Waterhole in the State of New South Wales did commit an act of gross indecency with GG, being then under the age of 18 years.

Count 14: That he between 1 January 1990 and 31 December 1990 at Warnervale in the State of New South Wales did assault GG.

These 14 counts represent the surviving counts of an indictment presented against the accused in respect of a 'special hearing' conducted in 2009 before Acting Judge Maguire. His Honour at that special hearing found the accused not guilty of 17 of the 31 counts in the indictment. The reasons for those acquittals are to some extent relevant to aspects of the way in which the Crown conducted this trial, which is a trial by Judge alone pursuant to s 132 Criminal Procedure Act.

This trial has been conducted on the basis that at the conclusion of the evidence in the course of adjudicating upon its verdicts the Court will consider the relevance for tendency purposes of specific allegations made by particular complainants or witnesses in proof of guilt of specific allegations made by other complainants, as well as consider allegations not the subject of specific counts in the indictment as relationship or contextual evidence. Thus, all the evidence has been heard together by consent without the Court being required as a threshold issue to determine the relevance of particular evidence concerning one complainant, and/or specific counts relating to that complainant, to proof of guilt of the accused in respect of counts concerning another complainant or complainants.

This judgment in part is to be considered in the context of a number of judgements that have been delivered by myself in respect of interlocutory issues raised by the parties from the time that it first came before this Court in April 2013.

The Crown case in outline

The accused was born in December 1932 and is alleged to have committed offences against six complainants over a period of time between approximately 1975 and 1990. In this period he lived in the western Lake Macquarie area, in or near Morisset. The various complainants met the accused as school boys, some attending local schools and living locally. However, the first two complainants in time came to the area from Argenton, to the north of the 'Lake Macquarie' area on the fringe of suburban Newcastle. They were friends of the accused's son TA, who lived with his mother at Argenton. She was by 1975 separated from the accused. The accused was known as 'Harry' to all the complainants and other people as well and was referred to as such throughout the evidence.

Because of the breadth of the Crown case the number of counts and the number of complainants bringing allegations over a 15 year period, to understand the prosecution in this matter it is appropriate to provide an overview of the witnesses and evidence upon which the prosecution relied. The particular complainants in respect of particular counts are, with two exceptions, the primary witnesses in proof of the charges. The exceptions are in count 11, where the complainant is deceased and the only direct evidence is from DC, the complainant in relation to counts 6 to 10. In respect of count 12, where GG is the complainant, on one view of the evidence DC is also an eyewitness to the commission of that offence. All the complainants were aged between 11 and about 15 years of age when it is alleged that the accused commenced sexually assaulting them.

Dealing with the counts in chronological order, the witnesses relevant to counts 1 and 2 are the complainant NG (a school friend of the accused's son TA), FG (the complainant in count 3), DA (the nephew of the accused and son of his brother John) and GW, who is the older brother of KW the complainant in respect of counts 4 and 5. Other evidence relevant to these counts includes the contents of exhibits B, D, H, part of exhibit J, M, M1, O, Q, 1A, 5,6,7,8 and 10. A number of these exhibits were medical reports or other records tendered by both prosecution and defence relating to the accused with 'relevance' to all counts, save perhaps for count 14.

In relation to count 3 the primary witness is FG (a school friend of NG and TA) with evidence from NG, DA and GW of relevance. In relation to this witness there was evidence concerning complaints made by him some years after relevant events from Angela Burgess, Brett and Ingrid Field (friends of his) and his wife, SD. Some of the relevant exhibits to his evidence include exhibits B, C, D part of exhibit J, part of exhibit L, 2, and the medical reports earlier mentioned.

In respect of counts 4 and 5, the complainant KW, the primary witness, is the younger brother of GW who gives some background evidence to the counts. DA gives relevant evidence to these counts, as to some background matters and as to alleged tendency. There is evidence of complaint by KW to his wife, NW, and in a statement obtained from a church counsellor Brett Sturgess, which is part of exhibit L. Other exhibits tendered relating to these counts were exhibits B, B1, F, G and 3, as well as the medical reports.

In respect of counts 6 to 10 the complainant DC is the primary witness but evidence relevant to some of these counts comes from KW, a school friend MS and Meaghan Barr (a former girlfriend). Evidence relevant to the relationship between DC and the accused was given by the complainant's older half siblings, Terrance Foreman, Jennifer Redwood, Lynda Foreman and Allan Foreman. There is evidence in the statements of his mother, Patricia Heaton and step-father Ronald Heaton concerning the relationship of DC to the accused and DC's visit to the police to make a statement regarding the accused in late 1987. Ronald Heaton provides evidence of complaint by DC about the accused "having sex with (him)" and the accused "sexually abusing him" in about 1987 or 1988. Evidence relevant to a complaint made to police in a formal statement given December 1987 was given by retired Inspector John Scott. GG also gave evidence of the relationship between DC and the accused after the period covered by counts 6 - 10. GG was about three and a half years younger than DC. They were not previously known to one another. KA, a niece of the accused and the sister of DA, lived with and married DC in the 1990s. She gave evidence of delayed complaint and of aspects of the relationship between DC and the accused from about 1990 onwards.

Apart from exhibits of general relevance to all counts, parts of exhibit J and exhibit L, exhibits K, M, M1, N and 4 were relevant to the counts and evidence concerning DC. DC gave evidence in relation to count 11 and part of exhibit J was relevant to RR. GG also gave evidence of relationship between RR and the accused. In relation to counts 12 to 14, apart from the principal witness GG, relevant witnesses were DC and to a lesser extent, KA, who, some years after separating from DC commenced a relationship with GG. Statements were tendered from his parents, PG and NG (part of exhibit L) of complaints made at about the time that he made statements to police, school records, birth certificate, a statement from an ex-employer to date the alleged common assault and statements from Max Cluff, a psychologist, and Dr Di Dio, to both of whom the complainant made general complaints of sexual abuse in December 1999 (all part of exhibit J). His claim for victims' compensation in 2003 is reflected in exhibit N1.

The accused in the mid 1970s lived on a property at Bridge Street Morisset with his elderly parents. He was in his 40s and had a number of siblings, some older, one of whom Geoffrey John, known as 'John', lived on the property in a caravan with his family in or about 1976 or 1977. John's children included DA and KA, witnesses in the trial. This property has been variously described by a number of witnesses as comprising a house, in which the accused's parents lived until his father's death in July 1976, a shed, a workshop and a 'humpy', as it was described by some witnesses, in which the accused allegedly resided or slept from time to time. The accused gave this residence a somewhat different description to other witnesses. The brother John and his family moved to a nearby property on Bridge Street Morisset where he had built the house in the late 1970s.

The accused's mother apparently was not at the property staying in the house all the time in the late 70s. No detail in relation to her movements was given by the accused in his evidence. No issue was raised as to this matter. The accused is alleged to have sexually assaulted, in the manner pleaded, NG, FG and KW at the Morisset property. There was no issue at the trial having regard to the evidence of the complainants and documentary evidence in support (such as school records etc) as to dates pleaded for particular counts. The Crown alleges that the accused befriended NG through his own son TA who lived not far from NG when NG was in year 6 and year 7 at High School. The accused through NG and/or TA later, within months, befriended FG and his friend TM and the three boys were regular visitors to the Morisset for a period of over 12 months from 1976. NG was born on 6 April 1963. FG was born on 19 September 1963. TA was approximately 18 months to 2 years older than NG.

In respect of each of these complainants and TM (who did not give evidence in the trial) it is alleged that the accused groomed them in a range of ways, such as taking them to the 'Newcastle Speedway' at Tomago, buying them food and drinks whilst there or on the property at Morisset, allowing them to drive cars and motorbikes on a makeshift track at the Morisset property and allowing them to sleep in the humpy where there were two spare beds in one section and a double bed in a bedroom where the accused usually slept when he was not sleeping in the house. The sexual assaults alleged by NG and FG, whether pleaded or relied upon for contextual purposes, allegedly occurred in the double bed in the humpy or in a bedroom in the main house when the accused's mother was absent.

As to the particular allegations in relation to NG it is alleged that after taking him with his son TA to the speedway one evening, he slept with the two boys in his double bed in the shed or 'humpy' that he occupied from time to time on his parents property at Morisset. On the first occasion he grabbed NG's pants and tried to pull them down. On the second occasion about a week later, when sleeping with the two boys after going to the speedway, the accused inserted his penis in the anus of the complainant (P 60). This was the substance of count 1 in the indictment.

In relation to count 2, the complainant NG was again sleeping in the accused's double bed in the humpy or shed with TA, after going to the speedway and again the accused inserted his penis into NG's anus (P 63 - 65). NG alleged that sexual assaults of this character continued for about 12 to 18 months, the accused use 'Vaseline' that he kept beside the bed as a lubricant. Other sexual assaults over this time included oral sex, masturbation and having NG penetrate the accused's anus, which occurred approximately 6 months after he was first sexually assaulted by the accused. The Crown case was that the accused eventually lost interest in NG over time and turned his attention to FG. There is no evidence that he sexually assaulted TM. Sometimes all three boys slept in the humpy, NG in the double bed, the other two boys in single beds in another 'room'. Later FG slept in the double bed and NG elsewhere, when the accused was not sleeping in the 'house' of his parents. There were occasions where he "sexually assaulted" either boy in the main bedroom of the house.

FG and TM commenced visiting the property and staying overnight a couple of months after NG started visiting. FG alleged that approximately 6 to 9 months after first staying overnight at the property he slept with the accused in the double bed in the shed or humpy instead of NG. He was masturbated by the accused and he masturbated the accused and they fellated each other. The accused being masturbated by FG is the essence of count 3 (p 170 - 171). He alleges regular sexual activity with the accused from late 1976 or early 1977 for approximately 6 to 9 months.

These three boys stopped attending the Morisset property by late 1977. In 1977 a local Morisset boy, GW, attended with his father to buy some spare parts from the accused at the Bridge Street property. The property had many car parts, motor vehicles (complete and incomplete) and tyres on it. The accused conducted some sort of business both there and later at other properties dealing in car parts and tyres. GW allegedly worked for the accused through 1977 until he was involved in a car accident with the accused in which he badly broke his leg on 28 February 1978. He was hospitalised for over 2 months. His younger brother KW, who was born on 27 September 1967 and who occasionally attended the property at Bridge Street with his family beforehand, became a regular visitor at that property after his brother's accident and was sexually assaulted at that property in the manner pleaded in count 4. KW continued a relationship with the accused from early 1978 until he was approximately 17 or 18 years of age.

DA, the nephew of the accused who was born on 21 January 1967, gave evidence of meeting NG, FG and TM at Bridge Street Morisset, when he lived locally with his father. He gave evidence also of the accused sleeping with him in 1978 after going to the speedway with him and touching him on his penis in the bed. He got up and left the bed. This is relied upon as tendency evidence .DA also met KW in the presence of the accused. He remembered the accused purchasing a motor vehicle for KW.

The accused moved his residence from Bridge Street to 501 Freeman's Drive Wyee in the late 70's or early 1980s. This property was described as a semi-rural property with a residence on it and a shed with a type of racing track and other motorcycle tracks running through the bush. It was at this property in 1982 that the allegation of bestiality in count 5 is alleged to be committed, in the context of the accused's ongoing sexual relationship with KW. KW alleged sexual assaults occurring at the Wyee property and at other locations in the area, sometimes isolated roads.

KW alleged in relation to count 4 that before he reached puberty when he was in year 5 at Morisset Public School (1978) he was in bed with the accused at the Bridge Street property and the accused put his penis in his anus with the use of Vaseline as a lubricant (p.274-6). In relation to count 5 he alleged that at the property at Wyee the accused, firstly, tried to have his German Shepherd dog penetrate KW's anus and that when KW refused, the accused knelt down in front of the dog, removed his pants, masturbated the dog and the dog mounted him. The dog appeared to be having sex with the accused, the accused later telling KW that the dog had penetrated him (pp 287 - 289).

At the Wyee property in 1985 the accused met DC, MS and later RR. DC lived in the 'Mecca Caravan Park', which was apparently a few kilometres to the southeast at Wyee Point with his mother and stepfather. DC was born on 11 July 1970, MS was born on 12 October 1970 and RR was born on 21 January 1971. The accused, as with KW and the other earlier complainants, offered work and promises of payment to DC, MS and RR, although MS only visited for a short period of time and is not the subject of any counts in the indictment. MS, who also lived at Mecca Caravan Park, gave evidence that on one occasion he slept overnight, the accused got into bed with him and "cuddled up" to him, "spooned (me)", because it "was cold". No one else was present. He too was offered money to work on the property and given cars to drive on the property. The accused allegedly encouraged the continuing relationship with DC and RR by allowing them to drive cars and bikes on his property, to stay overnight on his property and on those occasions at various times offering them alcohol, access to motoring and "pornographic" magazines, leading to sexual assaults of various types.

With regard to DC, in relation to count 6, he alleged that when he was 15, whilst on the Wyee property, he was given Tooheys beer, car magazines, then Playboy and Penthouse magazines. The accused rubbed his penis until it became erect, asked DC to rub his penis until there was mutual masturbation, told DC to take off his pants, knelt down in front of him and performed oral sex on DC, and then had DC masturbate him until he ejaculated (P552 - 554). The masturbation of the accused by DC is the act of "gross indecency".

Counts 7 and 8 are related in time and are alleged to have occurred at the Wyee property approximately 2 weeks after the events giving rise to count 6. One day MS had been working on the property with DC. After MS left, DC was given about four cans of beer, Playboy and Penthouse magazines and then in the bedroom the accused directed DC to put Vaseline on his anus. They lay on the bed and the accused performed a number of sexual acts including masturbating DC to ejaculation (count 8), performing oral sex on him and subsequently trying to put his penis into DC's anus and penetrating him partially (count 7) finally ejaculating between DC's legs (P556 - 561, 567 - 568). What was alleged by DC as constituting count 8 and the timing of that act is the subject of some controversy, being the only count where it is submitted that there is no identifiable evidence that may sustain it based upon the concessions made in cross examination by the complainant (p713). The prosecution opened its case on the basis that the act of gross indecency occurred after the commission of the act of buggery alleged in count 7 (pp 1163-1164).

Count 9 is concerned with an allegation by DC that during the school holidays of 1985-6 after driving a motor vehicle around in the afternoon and obtaining some takeaway food, he stayed at the accused's property at Wyee for the night. He was given Bourbon and Coke to drink, whilst the accused drank Malibu and milk. DC watched TV and then went to bed and "passed out" from the alcohol. When he awoke the accused was trying to put his penis in his anus, his shorts and underpants were around his knees, he felt lubricant in the area of his anus and on this occasion the accused fully penetrated him. Further, DC alleged the accused masturbated him. The accused ejaculated into his anus and masturbated DC until he ejaculated on the bed, telling DC that it "felt great, like a virgin" and that "there are people in Sydney who will pay $500 for the same thing" (P570 - 573). The next morning DC alleged the accused endeavoured to penetrate him again in the anus and when he said it hurt the accused stopped. DC then penetrated the accused's anus with his penis and DC ejaculated into the accused's anus. DC was told by the accused that he had to "relax" so that the accused could penetrate him.

Count 10 involves an allegation of penile penetration of the complainant's anus, amongst other sexual acts, during the school holidays at the Wyee property between December 1985 and March 1986. This is alleged to have occurred approximately 2 weeks after the events giving rise to count 9. The complainant stayed overnight, was given Bourbon and Coke and eventually felt "pretty drunk". In the bedroom after his clothes were taken off, the accused performed oral sex on him, he was asked to perform anal sex on the accused and masturbate the accused's penis. The accused then put lubricant on his anus and DC was told to "relax". The accused performed anal sex on him and masturbated him at the same time. The accused ejaculated into his anus and afterwards told him that he was "just like a virgin" but that he needed to "relax" (P576 - 579, 608 - 609).

The relationship with RR was relatively shortly lived. The accused's initial sexual assault of him is represented in count 11. This count arises from evidence of DC that he and the other complainant were together and they were given alcohol. RR was drinking 'Southern Comfort'. DC was drinking Bourbon and Coke and the accused was drinking Malibu and milk. They had earlier been working on a motor vehicle that day and it was about June or July 1986. RR and the accused were looking at Penthouse magazines. DC then saw the accused masturbating the complainant. They were sitting on a bed. The accused masturbated DC at the same time. He said to DC of RR, "look at the size of his weapon", referring to the complainant's penis. DC "saw" the accused have anal intercourse with the complainant, at which time the complainant said it was hurting him. He watched the accused moving behind the complainant, DC was in front of the both of them and the accused was asking him to masturbate the complainant. He said that he saw the accused ejaculate into RR's anus and he made a moaning noise. The complainant said that it "hurt" but was told by the accused to "relax" and it would not hurt.

RR gave statements to police in late 2001 and early 2002, in particular in the first statement, relating to the events giving rise to count 11 and generally describing an ongoing sexual relationship for a period of time. He died after giving his statements to police and has never given any evidence in previous proceedings. I excluded his statements which were tendered pursuant to s.65 Evidence Act 1995. The basis of that decision is set out in my judgment of 25 November 2013. GG gave evidence of sexual activity between himself, the accused and RR at Bonnells Bay at which DC was present as well.

DC continued to have a 'relationship' with the accused from 1985 until about 1994 or 1995. The Crown alleges that not only DC was sexually assaulted in the manner described in counts 6, 7, 8, 9 and 10, but also that the accused continued having a sexual relationship with him beyond him turning 18. This sexual relationship included sexual assaults up until the time he was 16 of the type particularised in relation to the counts in the indictment. DC was given access to motor vehicles and motorbikes to ride on the accused's property and also was encouraged to race motorcycles in various events including "gymkhanas", as they were described, and "motocross" events, amongst other motor racing activities. He was apparently taken by the accused to events around New South Wales and outside the State. On one occasion when the accused and DC travelled to Queensland to recover a motor vehicle that DC had left for repairs in Beaudesert the accused is alleged to have sexually assaulted him in a motel in that town.

DC made complaint to some of his half siblings and his step-father about the accused's conduct towards him in 1987 and went to speak to a police officer, Inspector Scott, at Toronto Police Station in the company of some of these family members and with their encouragement. On 9 December 1987 Inspector Scott made an entry in his Duty Book on this matter. DC made a statement to the Inspector which has since been lost, alleging that he had been sexually assaulted by the accused but the details of which are no longer available. One of his half sisters (Jennifer Redwood) also passed a rented property in the Lake Macquarie area that she had occupied over to the accused, where she said the accused and DC lived together for a period of time from 24 June 1987. She said that in late 1987 DC complained to her that the accused had been having sex with him, giving him alcohol and showing him pornographic magazines. He also made a complaint of sexual abuse to his friend Meaghan Barr in 1988 who gave evidence of DC's close association with the accused in 1986 - 1988, and that DC was living with the accused in a caravan at Freemans Waterhole in about that period. DC in October 1988 damaged by a deliberately lit fire the property of the accused at his property at Wyee in company with other young men. This was claimed to be 'payback', he claimed, for the 'abuse' by the accused. The Crown relied on the 'Statement of Facts' tendered in relation to a co-accused, Desmond Dunning. After he lit the fire, DC's other half sister who gave evidence (Ms Foreman) said that he told her he lit the fire to get back at the accused for "abusing him sexually". When in Mt Penang Detention Centre serving a non-parole period for related offences between May and September 1989, DC was visited by the accused in company of GG. The accused was seen there by Ms Redwood and he admitted that he had visited DC there. Although his visit and continuing friendship with the person who was responsible for what was claimed to be $50,000 damage to his property does not of itself prove anything, it is a quite strange situation. GG alleged a number of occasions that he, DC and the accused jointly participated in sexual activity from 1988 onwards.

The accused allegedly continued to have a sexual relationship with DC at the time he began sexually assaulting GG at Freemans Waterhole in early 1988, on occasions in the presence of DC. As with DC, the accused offered GG work on his property which like the other properties had large quantities of tyres and car parts that required sorting and moving. He gave GG access to motor vehicles and motorcycles to ride and, as with DC, purchased specialised motorbikes for motocross and like events for him to use. They each allege financial arrangements whereby they believed they were purchasing motorbikes from him. The motorcycles the accused purchased from specialist dealers, usually in Wyong. A number of photographs of some of those motorcycles and vehicles that the accused owned at various times were tendered as exhibit K (and as part if Exhibit J).

GG was born on 9 January 1974 and met the accused in late 1987, or early 1988 at a racetrack at Awaba near Lake Macquarie when the accused provided him with assistance in getting his motorbike started. He was invited to visit the accused at his property at Freemans Waterhole which was also located on 'Freemans Drive' (at number or 'Lot' 222), but further to the west of the Wyee property.

GG alleged that after he started going to the accused's property at Freemans Waterhole very shortly after their first meeting. Initially the accused sexually assaulted him by performing what he described as a "hothead", that is, blowing " hot air" with his mouth over the complainant's penis covered by his tracksuit pants, at least on the first occasion it happened, which occurred in the caravan on the property in which the accused lived when no one else was present. The second occasion that the accused performed a "hothead" the accused also masturbated himself, asked GG to play with his testicles, touched GG's penis and testicles and performed fellatio upon GG, as well was masturbating himself until he ejaculated. The Crown alleges that the fellating of GG and masturbation of him constitutes count 13. GG said he was 13 at the time.

The following weekend after the second "hothead" GG alleges that he and the accused were at the Freemans Waterhole property with DC. After working during the morning DC and GG were given beers and GG said he felt "lightheaded". GG went to the bed in the caravan, he and the accused took their clothes off, the accused put his hand on GG's penis and masturbated him and put lubricant on his anus and pushed his penis into GG's anus. DC was in the room sitting on a chair at the base of the bed. GG told the accused that it "hurt" and was told to "relax", the accused eventually ejaculated into his anus. GG said that his anus was "stinging". He went outside to the toilet, when he came back he saw the accused and DC together and he told the accused that his anus "hurt a lot". He thought DC was in the room at the time on a chair near the base of the bed. This penetration of the complainant by the accused is the substance of count 12 (pp 441 - 443). DC gave evidence of an incident in which he was present at Freemans Waterhole with GG and the accused, he saw the accused having anal sex, masturbation and oral sex with GG, he was asked to join in and he had anal sex with GG whilst the accused had anal sex with him. He went to the 'bathroom' and when he returned he saw the accused having anal sex with GG (p 638). This was the first occasion that DC gave in evidence of having observed the accused involved in sexual activity with the complainant GG. On this day he alleged that the accused told him that he had "got" at GG while DC had been away in Queensland in the period beforehand.

In 1990 a dispute developed between the accused and GG concerning money owed on a motorcycle purchased by the accused for GG to use in motorcycle events. GG alleges that there was a confrontation at the accused's then property at Warnervale, where he and DC alleged that other sexual assaults by the accused, or sexual activity with him, occurred. Count 14 is an allegation of common assault when the complainant went to the accused's property to get back a motorbike that he believed he own in company with a friend called Gabriel Gousmae (sic). The accused told him that he owed $1800 for the bike. GG thought that he owed less money, there was a heated argument and the complainant alleged that he was king hit and he "dropped to the floor". Then he was kicked by the accused in the ribs. His father came out to the property at a later time and confronted the accused about the motorbike and a complaint by the complainant that he had been assaulted (p 460-63). GG ceased to have contact with the accused after this incident. The motorbike was recovered by the complainant, or his father, after payment of the money claimed to be owned by the accused.

DC continued his relationship with the accused after this time. Some other significant events that occurred during that relationship between 1986 and about 1990 included, a fatal motor vehicle accident on 29 April 1988 when DC drove a motor vehicle and two friends were killed. DC referred to a dispute with the accused on the occasion of his 18th birthday on 11 July 1988 over sex, which led to DC moving out of the accused's property at Freemans Waterhole for a period of time.

FG, KW, DC and GG in various ways made "complaints" to various people before they gave statements to police some of which were briefly referred to earlier. None of the complaint evidence contains representations available for a hearsay purpose. They are not relevantly 'fresh in the memory' or else lack relevant particularity. Although there is acknowledged delay of varying lengths in complaint being made the Crown relies upon the fact of complaint and/or the terms of complaint as relevant to the assessment of the credibility of the particular complainant who made complaint. The evidence from those relevant witnesses and of the complainants about those complaints will be referred to later. Some has been earlier cited. The Crown relies upon the course of sexual contact with particular complainants, even though many acts are not the subject of charges, as evidence of the true context of the offending behaviour of the accused.

Further, as earlier stated, the Crown relies upon evidence given by each of the complainants concerning their treatment by the accused, including their grooming, their contact with the accused and their sexual activity with the accused, amongst other matters, as evidence revealing a tendency on the part of the accused relevant to proof of the accused's guilt in respect of other allegations by other complaints. Again, this matter will be referred to in greater detail later in the judgement. DA, MS and, to a less extent, GW give evidence relied upon by the prosecution for tendency purposes.

The Accused's case in outline

The accused gave evidence denying any sexual assaults or sexual relationship with any of the complainants, their friends or other people, such as DA, who alleged inappropriate sexual contact. He did not deny knowing individual complainants and living at the various properties that were described at about the times alleged, although he disputed the accuracy of some of the descriptions of his properties, particularly the Bridge Street property and the Wyee property.

In summary, putting aside issues relied upon by the accused arising from the cross examination in the Crown case, the matters raised in the accused's evidence included general denials of the specific allegations and evidence of physical and other impairments that made it impossible for him to have committed the sexual acts alleged by the complainant's in his oral evidence and in medical reports tendered as exhibits. The Crown also tendered some medical reports on this topic. The accused disputed the claim of KW that he had a German Shepherd dog at the time of the alleged offence in 1982, stating that he owned a Tasmanian Shepherd dog at that time, which was a female and no bigger than a 'Blue Heeler' dog. He denied paying any of the complainants or anyone referred to in the evidence for work done on his property. He denied purchasing motorbikes or cars for particular people, asserting that bikes and motorcars he purchased were for the benefit of any people invited to his property. He denied having Penthouse or Playboy magazines and supplying them to the children. He denied supplying alcohol to any of the complainants and denied initially that any of the complainants had ever slept at the properties with which he had connection, although in cross examination he conceded that they may have stayed overnight but not in his bed. Some of the matters arising from his evidence, particularly in cross examination, will be referred to in the course of dealing with the respective submissions (see paragraph 68 below).

SUBMISSIONS

In summarising the submissions I have referred to some of the factual matters adverted to in detail to pick up some matters not referred to or only briefly noted above in the summaries of the cases.

Crown's closing submissions

The prosecution submitted that there were a number of matters not in dispute, including the fact that the accused knew all the complainants, that they were each aged between 11 and 15 or 16 when they met him that they were at school when that he had befriended them and sometimes their families. He provided them with various incentives including cars and motorbikes, offered payment of money for work done, allowed them to drive cars and motorbikes on his property and otherwise encouraged them to visit and stay at his properties.

The prosecution went through the evidence that related to each of the complainants to summarise the evidence relevant to particular counts and also to point out the relationship of particular witnesses to one another. NG on his account first met the accused when he was about twelve and in sixth class in 1976, in company with the accused's son TA who was slightly older and went to school with him. The Crown submits that he is a truthful witness whose contact with the accused is supported by the evidence of FG and GW.

The Crown submits that the evidence of NG clearly supported proof of counts 1 and 2 and that a number of events that are described by the witness as occurring to him are supported by what the Crown says is the tendency of the accused, shown in part by excursions to the speedway, access to motor vehicles and motorbikes, paid work and meals and the like whilst staying at the accused's home. The evidence in exhibit M showing licence details held by the RTA (and its predecessors in title) shows the accused was living at the Bridge Street property where the sexual assaults are alleged to have occurred and the description of the property is consistent with what is generally known about it.

The timeline of NG's visits to the property at Bridge Street Morisset, by reference to the evidence of the death of the accused's father in July 1976, the evidence of FG and GW and to other independent evidence of GW's schooling, support the claim by NG of the opportunity for him to have been sexually assaulted as he alleges, although the evidence from FG and GW would be relevant only to provide some contextual evidence.

A number of inconsistencies or other issues arising from the evidence of the witness, particularly in cross-examination, were referred to, but these were said to be only 'minor' or otherwise of no consequence, having regard to the otherwise general reliability of this evidence. So far as his failure to complain and the absence of complaint evidence, particular reference was made to the fact that when first approached in 2002 he denied that any sexual assault had occurred when interviewed by police and did not disclose any sexual assaults until 2006. This was said to be understandable given his shame and the other reasons he gave in his evidence. The prosecution's submissions on counts 1 and 2 are at pp 1108 - 1113.

With regard to FG and count 3, his evidence was supported by NG so far as his opportunity to visit the Bridge Street property at Morisset and, like NG, he was supported by GW and his memory of the three boys (including TM) being at the property when he first went there in 1977. He gave evidence that he was groomed similarly to NG. Although no anal intercourse was performed on him, he became the centre of the accused's affection when the accused had lost interest in NG. He supported NG's account of ceasing to attend upon the accused's property and being picked up by his parents. FG's account of ceasing to visit the accused with TM was generally supported by GW's recollection of the three young people being there and then ceasing to come. The evidence of NG and FG as to the accused's attraction to them is said to be supported by the evidence of DA of his sleeping with the accused at the Morisset property after going to the speedway at Tomago.

It was submitted that FG's credibility was supported because of the evidence of complaint from his wife SD, who gave evidence of complaints made between 1990 and or 1993 and his identification of the accused to her in the street at Morisset. He also made complaint to Brett and Ingrid Field who gave evidence. Before he was married he had made complaint to Angela Burgess (a girlfriend of his friend) in 1985 of being sexually assaulted as a child and being lured to a place where there were tyres and bikes et cetera. He was in part supported by the newspaper article showing the photograph of the accused (Exhibit C) because he said it was in the late 1990s when he saw the accused's picture in the paper and he became upset that he may have been molesting other children and was being made out to be a "hero". He made statements to police in late 2001 and early 2002 and had been to see a counsellor Don Steadman in the late 1990s and complained of being molested. He described mutual masturbation and fellatio in that consultation as he described later to police. As with NG it was submitted that there was no concoction. The only contact with NG was to tell him that the police would visit him. He had employed GW in the mid 2000s, but by then he had made his statements and he did not discuss the matter with GW.

Again the Crown referred to what is anticipated would be claims of inconsistencies and submitted that these may reflect simply his memory improving with greater concentration on relevant events, but he was adamant that he had been molested by the accused. The Crown submitted that in relation to NG, none of the counts upon which the accused had been acquitted at the special hearing were the subject of evidence in this trial and similarly, this was the case for FG. In the original indictment there were five counts relating to NG, counts 1 to 5, the accused was acquitted of counts 3 to 5. In relation to FG there were four counts, of which the accused was acquitted of three counts being counts 6,8 and 9. The prosecution's submissions in relation to count 3 are at pp 1113 - 1124.

KW's evidence was the main evidence to support counts 4 and 5. It was conceded that he did not actually see the dog penetrate the accused. In the previous indictment the acquittal of count 11 in that indictment alleging the accused tried to get his dog to have anal penetration of the complainant (an allegation of 'bestiality') was because the offence could not be established at law, not that the trial judge disbelieved KW. KW began working for the accused when he was in year five at school in 1978 after his brother had been involved in the motor vehicle accident in February 1978. He had a relationship with the accused until he was 18 years of age in about 1985. He likewise, it was submitted, was supported by the evidence of GW and by the evidence of DC.

In relation to count 5 GW supported the existence of the accused having a German Shepherd with whom the accused allegedly committed the crime of bestiality. There was no doubt that KW visited the Morisset property and the Wyee property. There was evidence of a fire on the accused's property in December 1982 and the alleged events of count 5 occurred about six months before. The events in relation to count 4 occurred when the accused was living at the Morisset property after the death of his father. Further, the evidence of KW indicated a history of sexual contact after these events with sexual activity occurring at various locations. KW was encouraged to continue the relationship by incentives such as driving motor vehicles on the accused properties, payment for work, trips to the speedway, being provided with motorbikes et cetera. He was groomed and then encouraged to maintain a relationship by the offer of incentives. He had made complaint at his church to some type of church counsellor, Brett Sturgess, and then made complaint to his wife after revealing sexual abuse in general terms to Mr Sturgess and Sturgess' wife. He explained the delay in complaint as being caused by him knowing that he had been taken advantage of, but because he wanted the material 'advantages' given by the accused to continue and because there was a stigma in telling anybody about what had happened.

There was no 'contamination' as KW did not know NG or FG and had not spoken to DC or GG. It was noted by the Crown that KW, as with NG and FG had not sought medical assistance, nor claimed any medical problems after the sexual assaults. The prosecution submitted that in KW's instance it would have been hard for an 11-year-old to go to a doctor and also the accused had used Vaseline as he had with NG. The prosecutor dealt with matters that arose from the cross examination of the witness, noting that evidence that might be seen as a recent invention could be explained by him retrieving memories as he concentrated on traumatic events. The prosecutor said that he was an impressive witness who was 'matter of fact', not moved in cross examination and was very clear in his evidence. His claim of the German Shepherd being at Wyee is supported (indirectly) by the evidence of his brother GW. The prosecution's submissions in relation to counts 4-5 are at pp 1133 - 1149.

With regard to GW he was born in May 1962 and met the accused in 1977 through his father, as earlier mentioned. His evidence supported the presence of NG and FG at the Morisset property and had had no contact with any of the witnesses, except for KW who started going to the accused property when GW had his motor vehicle accident and FG at work. He supported the evidence of KW as to the circumstances of him first coming to the property. Although he worked with FG in the early part of the 21st Century he denied any concoction. Prosecution submissions on these counts appear at pp 1149 - 1150 of the transcript.

DC gave evidence of his relationship with the accused from 1985 onwards when he was about 15 years of age. He was born in July 1970, and first met the accused in the presence of MS who was born in October 1970. It was submitted that his evidence clearly supported counts 6, 7 and 8 (although they were in different order as he gave evidence), 9 and 10. He was groomed by the offer of alcohol on different occasions, car magazines, Playboy and Penthouse magazines, opportunity to drive cars and ride motorbikes, with "similarities" in the character of the sexual assaults committed upon NG and KW, particularly.

In relation to count 10 the events relating to this allegation occurred two weeks after the events concerning count 9, and occurred after MS had been present at the Wyee property. The Crown relied upon DC's evidence to support count 11 concerning RR, and particularly his observation of the accused appearing to perform anal intercourse with the complainant as well as contemporaneous statements made by the complainant and the accused as establishing that relevant intercourse occurred.

The Crown also relied upon detailed evidence of relationship between the accused and the complainant, particularly in relation to the arrangements between them for the purchase of motorcycles and the continuation of the relationship by DC because of what was described as his "passion" for motorcycles that he could only satisfy that by continuing a sexual relationship with the accused. Reference was made to events occurring when the accused for a period of some months lived in a house at Bonnells Bay, which lease he took over from DC's 'half' sister and the evidence from DC and his half sister concerning the accused living with DC at that address for some period. By early 1988, the accused had moved to Freemans Waterhole, and in early 1988 had met GG. DC supported this as he was present at the time. He was also present when the accused had sex with GG in his presence and he joined in, he having anal sex with GG whilst the accused tried to have anal sex with him. He left the room or caravan and returning to see the accused having anal sex with GG. This, it was submitted, supported the evidence of GG.

The Crown relied upon the evidence of Meaghan Barr, who met DC when she was 13 or 14. She was born in November 1972. She was his girlfriend for a short time and became a good friend. She confirmed a complaint made to her over a period of time in 1988 of being sexually abused by the accused. Before that she had seen the complainant sleep in the accused's caravan, when she stayed on the accused's property for a period of about a month having run away from home. She had slept outside the caravan as conceded by the accused but in slightly different circumstances.

The Crown also referred to the evidence of retired Inspector Scott that he saw the complainant on 9 December 1987 and took a statement from him which he chased up on 26 December 1987, but after then heard nothing more. It was submitted that this account fits in with the evidence contained within the statement of Ronald Heaton as to a complaint of being abused by the accused being taken up by the complainant at the police station at Toronto, and the general accounts of the complainant's half-brothers Terrence Foreman and Alan Foreman. The Crown also relied upon the evidence of the complainant that the accused had seen him in the street at Morisset and threatened him, which caused him to withdraw his statement, as an explanation for delay in bringing the matter forward to the authorities.

The fire lit by DC in company with others in October 1988, which destroyed chattels on the accused's property at Wyee said to be worth $50,000, was submitted to be lit out of frustration, anger and as 'payback', consistent with being sexually assaulted. The prosecution relied upon the 'statement of facts' tendered in the proceedings involving a co-accused which showed that a co-accused became involved to 'get back' at the accused for abusing DC. Although no objection was made about that 'statement of facts' (which forms part of the bundle of statements, certificates, photographs and other material relating to each of the complainants in exhibit J), neither was there much comment. Its second or third hand hearsay character deprives it of any real probative value.

The prosecution also relied upon evidence of DC of his sexual relationship with GG and his description of acts of sex occurring in his presence between the accused and GG. The Crown submitted that the relationship of DC with the accused continued through until about 1995 notwithstanding continued 'abuse', because of the commercial advantage for DC and his desire to ride bikes provided to him by the accused.

KA is relied upon by the prosecution to establish the continuing relationship with the accused by DC. She was born in 1972 and was the sister of DA and was a niece of the accused who had lived on the Bridge Street property when his parents were alive. She met DC when she was 18 and ended up marrying him and had children to him. She was told by Jennifer Redwood of DC's complaints and gave evidence of DC being reluctant to discuss the matter until, in the late 1990s, he 'blew up' and blurted out that the accused had sexually assaulted him by "fucking him up the arse". She gave evidence of the various commercial arrangements between the accused and DC. She entered into a relationship with GG in 2011 and had known him in the 1990s. It was submitted she had not facilitated any concoction between GG and DC. MS was relied upon by the Crown as confirming the early contact between DC the accused and providing evidence of a tendency for the accused to sleep with young boys in his bed.

The Crown went through arguments that it anticipated from the defence. It is submitted that any inconsistencies in DC's evidence were minor. The complainant DC was nervous and anxious and had recount thousands of sexual acts and thus may have made mistakes. As a 15-year-old he could not have been expected to go to a doctor to be medically examined. Apparent inconsistencies arose from confusion given the large number of events involving himself in the accused, amongst other matters. The evidence of relationship given in this trial was the same evidence of relationship in the previous special hearing. The prosecution's submissions in relation to counts 6-10 and 11, in relation to RR, are at pp 1150 - 1194.

With regard to GG it was submitted that his account of meeting the accused was supported by DC. The Crown took the Court through the grooming of the complainant, including to acts of performing a "hothead" upon him, the details relevant to count 13, when the Crown alleged that the gross indecency was the accused fellating the complainant and masturbating him as well as count 12, which was the first act of anal intercourse committed by the accused upon the complainant. This involved partial penetration whilst DC was present. Reference was also made to further acts of sexual assault committed by the accused showing the true nature of the relationship, including the incident at Bonnells Bay when the complainant was involved in performing sexual acts with RR in the presence of the accused and DC.

The Crown, in some detail, referred to other evidence of relationship, particularly the incident after the purchase of a 1990 Honda 125 cc motorcycle and the celebration of a sponsorship earned by DC when alcohol was consumed and GG and the accused performed sexual acts. With regard to count 14, the Crown submitted that complainant's evidence of being struck in the head and kicked was clear evidence of assault, and was supported by the detail of the statement of GG's father who confronted the accused. The father came out to the accused's property at Warnervale and put allegations to the accused concerning his son being assaulted and confirmed the existence of a commercial dispute over money owed on a motor bike. It was submitted that his evidence supported the credibility of the complainant. Further, the credibility of the complainant was enhanced, it was submitted, by complaints made to a solicitor in 1995, who did not give evidence, and general complaints made to a doctor and a psychologist in 1999, followed by more detailed complaints to the doctor in March and April 2001 and to the psychologist on 10 July 2001, about seven days before he signed his first statement to the police which was given on 21 July 2001. Crown submitted that there was no evidence of any concoction between DC in GG, even though they knew one another. It was submitted that there was no real possibility of any connection between any other complainant witness in the case and GG, or DC, other than KW.

It was submitted that any criticisms of GG arising from inconsistencies in his evidence were concerned with minor matters and there explanations for small inconsistencies. His absence of memory of particular sexual acts by the accused can be explained by the frequency of sexual contact with the accused. GG in fact saw some blood after going to the toilet which is consistent with being sexually penetrated, but because he did not go to a doctor does not mean that the sexual assaults did not occur. In any event, the absence of injury could be explained by the use Vaseline and any injury or discomfort would not be reported given the reluctance to tell anybody as to what had happened. Nothing arose from the claims for compensation of GG and DC. GG made his claim in 2003, but DC did not make a claim until 2009, after he had given evidence of the special hearing. There was nothing sinister about the fact that they used the same solicitor, particularly given the gap in time between the two claims. The submissions in relation to counts 12 -14 are at pp 1194 - 1214.

In relation to the accused's case it was submitted by the Crown Prosecutor that his evidence is to be given little weight, he was evasive, garrulous and/or untruthful. Alternatively, he contradicted himself and there were a number of internal inconsistencies. The Crown particularly referred to his initial denial that any of the boys had ever slept at any of his properties, apart from "out in the scrub" but then his movement to the concession that boys slept at the Bridge Street property when he was living there as well as other properties. The Crown submitted the accused was discursive and sometimes incomprehensible and that his evidence could not be accepted given all evidence in the case.

The prosecution referring to the accused's evidence, particularised matters arising in the prosecution case which were confirmed by the accused, either from the outset or ultimately. These matters, of course, are particularised in the transcript of the Crown Prosecutor's submissions, but in summary include the following: the accused agreed that at relevant times NG stayed with TA at the Morisset property, NG, FG and TM slept at the Morisset property, NG had breakfast at the accused mother's place, NG FG and TM slept in the annex to the shed or the 'humpy' at the Morisset property and they had slept in single beds that were inside the annex of the humpy. The accused knew all the complainants at about the time that they said they met him as well as other relevant witnesses. The accused had purchased motorbikes or cars for the use of particular complainants, such as FG, KW, DC and GG. As well, the accused conceded he lived at various properties at about the time it is alleged, including Bridge Street, Wyee, Bonnells Bay, Freemans Waterhole and Warnervale (which details were generally confirmed in exhibit M except for the Bonnells Bay address). He confirmed the sleeping arrangements at Bridge Street and at Wyee, that Meaghan Barr had stayed at his property at Freemans Waterhole, that he had bought motor bikes to be used by some of the complainants at 'Woody's', a motorcycle dealership at Wyong, (also confirmed in the statement of Peter Wood the owner), there were agreements for the payment for bikes, the accused had gone to New Zealand with KW's family and that NG's father had picked NG up from the accused's property and NG never came back. He agreed that NG, FG, KW and TM were taken to the speedway at Newcastle, that he had provided food to NG and FG, that NG, FG and KW drove cars at his various properties, that the accused had been to speedway and other events with DC and GG, that he had met GG at the Awaba speedway racing track and that he had seen DC on his 18th birthday and had gone to his 18th birthday party.

The prosecution submitted that the accused's changes in his evidence concerning matters such as whether the complainants had ever slept at his properties amounted to 'lies', reflecting a consciousness of guilt. The prosecution further submitted that the claims by the accused concerning his impotence or his erectile dysfunction were not established by the medical evidence in the various medical reports tendered by the defence and the prosecution. It submitted that there was no basis for concluding that the accused could not possibly have sexually assaulted the complainants because of any alleged erectile dysfunction. Nor could his claims of back pain and treatment for back problems support a claim that he was otherwise physically incapable of sexually assaulting the complainants as he alleged. The prosecution's submissions in relation to the accused's evidence and his case are at pp 1215 - 1242.

Specific submissions were made concerning the differing accounts of DC and GG of the first occasion that the accused sexually assaulted GG in the presence of DC (count 12). Ultimately, the Crown's position was that although DC described the first event involving sexual penetration by the accused of GG in his presence, the Court could not be relevantly satisfied that he was describing the same incident that GG described as the first sexual assault committed upon him when DC was present. Thus, the inconsistencies were of no moment. Those submissions are at pp 1243 - 1251.

The Crown submitted that in respect of particular matters the subject of evidence by either GG or DC, which had earlier been the subject of acquittals at the special hearing, the circumstances of those acquittals were such but no issue of autrefois acquit or issue estoppel arose to preclude reliance upon the relevant evidence as 'context' evidence in this trial, relying upon the Victorian decision of VN and a 2000 House of Lords judgment, R v Z (cited later at paragraphs 112-118).

The prosecution relying upon its various written submissions also submitted that evidence of each of the complainants, as well as other witnesses in the case, such as GW, DA and MS was available as evidence of relevant tendency pursuant to s 97 Evidence Act 1995.The prosecutor set out the relevant tendency or tendencies sought to be established and the particulars or characteristics of the evidence arising from the particular witnesses at pp 1255 - 1257. Legal issues raised in the submissions are generally dealt with later.

Accused's closing submissions

Counsel for the accused went through various legal directions that were submitted were required in this matter which need not be reiterated at this point given the detail of legal principles to be applied elsewhere in the judgment. Most of the matters identified were uncontroversial, the major matters requiring resolution by the Court relating to the appropriateness of a direction pursuant to s 165B Evidence Act 1995 (the 'Longman' direction), the availability of tendency evidence and the availability of context evidence in the trial in relation to matters the subject of acquittal at the special hearing. There were some other minor legal matters in dispute between the parties and the resolution of those matters can be taken from the findings on this judgment.

Counsel for the accused conceded on the evidence in the trial that from the various complainants there was evidence given from each of them, in respect of particular counts where each of them was a complainant, that was available to establish the offences as pleaded in respect of counts 1 - 7 and counts 9 - 14. But not so in relation to count 8, because no relevant sexual assault had occurred in the circumstances upon which the Crown had opened its case. Detailed submissions in relation to counts 7 and 8 are at pp 1288 - 1312.

Counsel for the accused submitted that at the heart of the consideration of the Crown case was the fact that each witness alleging criminal conduct on the part of the accused, or matters relevant to proof of that criminal conduct arising from other conduct that may reflect of tendency on the part of the accused, had to be scrutinised with great care. Further, in respect of every complainant there was significant delay between the alleged acts of the accused giving rise to complaint and the making of complaint, either privately to relatives, friends or counsellors, or to the police. Varying from 30 years between alleged events and first complaint in the case of NG, and months (1987) or years (2001) in the case of DC. Certainly, putting aside claims of private complaint, the lapse in time between relevant events and bringing matters forward to the notice of the police to permit prosecution was at least 11 or 12 years in the case of GG and longer in the case of other witnesses. It may be true that DC made a statement to police on 9 December 1987, but it was submitted that DC contacted the police to indicate he did not wish to pursue the matter, the statement is lost (although the officer who took the statement gave evidence of that fact that a statement was given and the date that occurred from his duty book) and no details survive.

Counsel for the accused then went through the various complainants' evidence pointing to various matters that were submitted to reflect adversely upon their credibility and/or truthfulness to raise a reasonable doubt, at least, as to the guilt of the accused in respect of the matters about which those witnesses gave evidence. In the case of NG reference was made to the considerable delay in making complaint referred to above, the concession by NG that his 2002 statement denied the fact that sexual assaults occurred, but conceded that all other details were correct and inconsistencies and/or inaccuracies in the detail of the evidence. These were matters such as the time that TA came to the Morisset property with him, when TM and FG were present in relation to TA's presence, the circumstances of sleeping in the humpy and the house at Bridge Street, the period of time over which sexual assaults allegedly occurred and where they occurred, the circumstances of changes in sleeping arrangements, amongst other matters.

Further, with regard to NG, reference was made to the fact that his statements as revealed in cross-examination suggested specific recall of the timing of events which was not consistent given the significant delay in complaint without any diary or notes to assist him to recollect particular events. When giving evidence in 2013 there were inconsistencies with his statement of 2006 which reflected adversely upon his credibility, including what were alleged to be differences in the number of times that he anally penetrated the accused, amongst other matters. It was suggested that he had made no reference to the use of lubricant at the time he was anally penetrated, however it was pointed out to him by the Court part of his evidence (at p 67) was capable of suggesting otherwise. It was also submitted that the Court could not exclude the reasonable possibility of concoction between NG and FG. Although FG gave evidence of a significant difference between the sexual assaults committed upon him and that alleged by NG this did not rule out concoction. The submissions of counsel for the accused in relation to counts 1 - 2 are at 1264 - 1272, with submissions on the issue of "concoction" between the complainants at pp 1272 - 1280.

With regard to FG reference was made to the delay in making private complaint of sexual abuse up to 9 years and significantly longer delay in taking the matter to the police and providing details. Further, it was submitted that the credibility of FG's version was damaged by the volunteering of the performance of oral sex upon him in his evidence when he had not previously disclosed that at the special hearing or in his statement. This was a significant "recent invention". There were dissimilarities between the alleged sexual assault of FG and NG as well as other complainants in a range of ways that weakened the claim of tendency arising from other evidence. In respect of FG's allegation, there was no suggestion of alcohol being offered to induce him to perform sexual acts, being provided with magazines or being purchased cars or motorbikes. Those submissions are generally set out between pp 1280 and 1285.

With regard to KW reference was made to the delay in complaint, the absence of any disclosure of masturbation in relation to count 4 when making his statement to police in 2001, amongst other matters. In respect of count 5, it was submitted that the description of the penis of the dog was not specific but was a general description of little evidentiary value and that KW's evidence was not supported by GW as to the sex of the dog. GW remembered the accused at a slightly earlier time had a German Shepherd dog but did not know the gender. The submissions in relation to counts 4 - 5 are at pp 1285 - 1288.

With regard to DC, there were no specific submissions made in relation to count 6, but in relation to count 7, it was submitted that there were inconsistencies between the evidence in the trial and earlier evidence of the special hearing as to the nature of the alcohol that the witness had drunk before being allegedly sexually assaulted, which was said to be a significant matter, given that was the first time that the witness had drunk alcohol on his version. With regard to count 8 a specific submission was put that the accused should be acquitted because there was in effect no evidence of a relevant act in respect of the way the prosecution had opened its case. Particularly it was submitted that by the conclusion of cross examination upon this count (at p 713) the complainant asserted that no masturbation had occurred after the first penetration of him by the accused, although there was partial penetration of his anus. The Crown had opened its case on the basis that the relevant act of gross indecency occurred after the penetration just described. Reliance was had upon the decision of the Victorian Court of Appeal in R v Howard [2005] VSCA 235, particularly at [28] - [30]. It was also submitted that the order of events in relation to counts 7 and 8 were inconsistent with previous accounts, particularly as to the circumstances in which the accused produced Vaseline as a lubricant for anal intercourse. It was conceded on reflection that the considerations that arose in Howard and the authorities therein cited were somewhat different than the considerations that arose in this trial, being a trial by judge alone. Ultimately, it was submitted the issue to be determined given the conflicts in the evidence and the changes to the way the Crown conducted its case was more pertinently be concerned with the credibility of the witness.

Counsel for the accused had no specific submissions to make in relation to the evidence relevant to count 9, but in relation to count 10 submitted that there were a number of inconsistencies in the account given by the complainant that reflected adversely on his credibility. These included his evidence as to the alcohol that he drank and inconsistencies with evidence given on a previous occasion, inconsistencies in relation to the nature and order of sexual acts performed and, importantly, initially not giving evidence of the accused performing anal sex on him and then correcting that evidence on the next day he gave evidence (at p 608). Further, his position at this trial of mutual anal penetration was a version that he had not previously given, and was raised for the first time in this trial. The witness had conceded it was possible that he was confused or wrong in relation to his recollection of relevant events. This was submitted to be very relevant in assessing his reliability as to whether the offence had been committed.

In relation to the evidence of DC upon which the Crown relied to establish count 11 concerning RR, it was submitted that the detail of his evidence demonstrated that he could not see whether the accused actually penetrated the complainant the subject of that count. It was conceded that having regard to the evidence of the witness that an alternative count of "attempting" to commit the substantive offence would be available pursuant to the relevant statutory provisions. Similarly, it was conceded, that in respect of count 5 an alternative count of attempting to commit the crime of bestiality may be available on the evidence of the trial.

In relation to other sexual activity involving the accused relied upon by the prosecution as context evidence it was submitted that the evidence of DC was unreliable on a number of respects, such as the conflicts between his evidence in this trial and previous statements about the length of time that he was involved in sexual activity with the accused RR (varying between six weeks and 12 months), his admitted confusion about that period of time as well is other important details such as the events concerning counts 8 and 10.

Counsel for the accused also analysed the detail of the evidence given by the complainant in relation to the first occasion that he was present when the accused allegedly anally penetrated GG. He pointed to the different order of events between the two versions and particularly the fact that he alleged he was a participant when GG said in respect of count 12 DC was a spectator. Counsel also pointed to the differences in the order of events as alleged by DC in relation to this incident. He relied upon the inconsistencies between the evidence in this Court and the statement he gave to the police in 2001, when he discussed the same incident which counsel for the accused submitted was a reference to the first occasion he was present when GG was anally penetrated. He submitted that the conflicts between DC and GG may lead the Court to different conclusions about the credibility of each witness, but that ultimately the Crown had not excluded the possibility that the evidence relied upon to establish count 12 from GG was unreliable and was concerned with a different event to that which the Crown relied upon to establish that count.

Counsel for the accused also referred to inconsistencies in the recollection of DC to that of Inspector Scott as to when the complainant had visited Toronto Police Station to make a statement, that he had exaggerated the length of the statement and that he had given different reasons and explanations for not proceeding with the matter. It was submitted that the reason he gave his brother Terrance Foreman for not pursuing the matter related to his concern about what other people would think of him and embarrassment. Yet in court he alleged he had been threatened by the accused when told that his life would "not be worth living". It was submitted that the account he gave of being threatened by the accused was not truthful or reliable and this reflected adversely upon his credibility. Further, his account in this trial was at odds with the recollection of the Inspector who believed that the matter lapsed and had no recollection of being contacted by the complainant.

Counsel referred to the evidence concerning his motive for lighting the fire that destroyed the property of the accused in 1988. In this trial he said was that he was angry, frustrated and wanted to 'pay back' the accused for blackmailing him into sexual activity by giving him bikes. Reference was to what was suggested were inconsistencies in previous statements as to his motives, which reflected adversely upon his credibility. The complainant had previously said there were the two reasons outlined in this trial, but also had said there was one reason. It was suggested that these different accounts were inconsistent.

Both relevant to his credibility and also to the claimed tendencies raised by the prosecution, it was submitted that an analysis of the evidence of DC and its conflict with the evidence of GG about their discussions concerning giving a statement to the police in the 1990s indicated concoction or contamination on their part. The complainant DC said that he only spoke to GG about going to the police once, in about 1999. Whereas GG could remember at least four occasions when they discussed the matter, usually at the home of DC, between 1992 and 1999. It was submitted that in order for them to discuss giving a statement to the police they must have been discussing matters relating to allegations of the accused sexually assaulting them. It is submitted that would be the sole purpose of having such a discussion and their denials of concoction and or detailed discussions about the allegations were untrue. The submissions in relation to DC's evidence regarding counts 6 - 12 are at pp 1288 - 1337.

It was submitted that ultimately there had been significant delay in DC coming forward with the current allegations, notwithstanding the fact that he may have spoken to Inspector Scott in December 1987. Further submissions were made concerning the delay on the part of GG, FG and KW to complain. With regard to FG it was submitted that if he had privately complained to a friend in 1985 and then subsequently to his wife, it was not a "great step" to take the matter to the police. He claimed to have gone to Charlestown Police Station in 1998, but not having gone through with it. It was submitted this is not reflect favourably upon his credibility.

With regard to GG it was submitted that there were a number of inconsistencies in his evidence in this trial and previous statements he made or between his evidence in chief and cross examination. These included the circumstances of him meeting the accused in early 1988 being invited out to Freemans Waterhole, the circumstances of the first "hothead" and how he got to Freemans Waterhole, the timing of his second visit to the property and similar matters. As with other inconsistencies adverted to in the submissions, whilst it was conceded that first blush that these inconsistencies may appear minor, the Court was reminded that GG, like the other witnesses, had no notes or diary to assist his recollection yet gave detailed statements to the police in respect of their allegations. In the case of GG he had conceded in evidence that he gave a detailed second statement in order to address the "timeline" related matters, yet had contradicted himself in relation to this timeline that he had created without any contemporaneous records to assist him.

It was submitted in relation to GG, for the same reasons advanced in relation to DC, that there was evidence upon which the court could conclude that they had concocted their accounts. It was also submitted in this context that both complainants had an axe to grind against the accused. In the case of GG his last contact with the accused involved a physical assault upon him and placed complainant's claimed commercial disputes were involved in the break up of their relationship of the accused. DC had had a number of disputes with the accused over ownership or payment for bikes and GG claimed that the accused had demanded more money than was his due for handing over a particular motorbike.

With regard to count 14, it was submitted that the complainant GG had changed his ground in relation to the character of the dispute and how much he owed to the accused and also that there were inconsistencies in his evidence as to the side of the face he was struck, when his father came out to confront the accused and the circumstances of his father's involvement. There was no explanation for the delay in reporting this assault because there was no issue of humiliation on the part of the complainant. It was submitted that his relationship of the accused was severed so there was no risk for him in taking the matter to the police, nor any reason not so to do.

Submissions were also made in relation to GG that he was the only witness who noticed blood on his anus when he went to the toilet and there was no cogent explanation for him not seeking medical treatment or at least seeking guidance from his family or someone else about whether he had suffered any injury.

It was generally submitted that each of the complainants who alleged anal penetration, given their version of the circumstances of initial anal penetration, were unreliable or untruthful as to that penetration, because of their failure either to seek assistance medically, or because of the absence of any noticeable injury given that injury must have been occasioned on their version of the pain they suffered on the occasion of the first act or subsequent acts of anal intercourse. It was also submitted that the account of DC of 1000 or so sexual acts with the accused, 100 by GG, 100 by NG etc were exaggerations and had to be considered also the context of the medical evidence produced by the accused.

Counsel for the accused submitted that the Court would need to give itself warnings as to the reliability of witnesses such as GG and DC having regard to the inconsistencies in their evidence (as with the other complainants), their antipathy to the accused, the delays in bringing forward the matters that they alleged against the accused to the notice of the authorities and the other criticisms. The submissions in relation to GG and issues that arose out of his evidence are at pp 1335 - 1353.

But the conduct of the accused was still troubling him in the background. Hence the circumstances in which he sought some general counselling from his church. Like NG and FG, his evidence is supported by the proven tendency on the part of the accused and by the accused's evidence of self-admitted opportunity to have access to the complainant and the admitted involvement of the complainant in various activities in company with the accused.

I accept on all the evidence that the prosecution has proven count 4. The evidence of the complainant was direct and unequivocal as to the act of penetration. As to count 5, this is a count not supported by the tendency evidence. Because of the character of the offence the tendency evidence is irrelevant. Ultimately, it does not have significant probative value to support that aspect of KW's evidence. However, accepting KW's account of the event and understanding his evidence to be that he drew an inference that the dog had penetrated the accused from what he saw and what he heard the accused say, I am not satisfied beyond reasonable doubt that the dog actually penetrated the accused as the count requires. However, pursuant to s 344 Crimes Act (and/or the repealed s 427 Crimes Act) and/or s 162 Criminal Procedure Act, I am satisfied beyond reasonable doubt that the prosecution has proven an attempt to commit the offence of bestiality.

Whilst I accept the account of KW as to the events giving rise to count five as truthful, ultimately I would have to be satisfied that the admission made by the accused in the presence of KW was not only made but was truthful and reliable on his part. There is no physical evidence given by KW which establishes beyond reasonable doubt that the admission was truthful. I am satisfied beyond reasonable doubt that the accused attempted, in the legal sense, to commit the act of bestiality with the German Shepherd dog, having tried to have the dog perform anal sex upon KW. The anal sex between a man and an animal may be committed "in any manner", and thus may include the conduct alleged by KW. This issue was without controversy in the trial. It is accepted that an alternative statutory finding of an 'attempted' offence was available, if appropriate, where a substantive offence is pleaded. Because I am reliant upon an admission made by the accused, recounted many years after the event, which may be "unreliable" given its hearsay character and the effluxion of time, I have determined that the accused be found guilty of the statutory alternative to that pleaded in the indictment, the essential factual matters being established beyond reasonable doubt.

With regard to count 5, I reject the accused's evidence that he did not own a German Shepherd dog in 1982 and his assertion of owning a different breed of dog. His claim that his father owned a German Shepherd that died before his father died (in July 1976 - exhibit J), whilst rather muddled and possibly ambiguous, is contradicted by the evidence of GW who said that the accused had a German Shepherd when he knew him in 1977 -1978. I accept GW's evidence on this matter. As the accused only claimed ownership or contact with one German Shepherd dog, that dog could not have died when the accused claimed it did. More importantly, the evidence of GW in part supports the assertion of KW that such a dog existed in the middle of 1982. The accused asserted that the German Shepherd dog was a female. The fact that GW did not know its sex is neither here nor there. The claim of the accused that the dog was female is contradicted by the evidence of KW as to the act of bestiality or attempted bestiality the subject of count 5. As for GW, the sex of a dog might not be a particularly important matter for a young man more interested in repairing cars and driving them.

In assessing these matters I am mindful of the matters raised on behalf the accused, including: the delay in relevant complaint until 2001 (noting the absence of any complaint to GW his brother who knew the accused well) and the volunteering of an act of masturbation which has not been previously disclosed in statements made by the witness and in evidence given at the special hearing in May 2009. These are the main matters raised on behalf the accused in criticism of the specific evidence of the complainant. Of course, I bear in mind the evidence of the accused, which I must take into account, that conflicts with KW, as with the other complainants on relevant matters concerning allegations of sexual assault.

As for the delay in complaint the truth of the matter is that KW had a secretive long-term sexual relationship with the accused over a number of years. KW could not bring himself to reveal that to anybody because of his embarrassment and because for a long time he took what I regard as a rather pragmatic attitude to the character of the relationship, given the benefits that were provided to him by the accused. The evidence of the accused as to the character of his relationship with KW was unconvincing, as was his evidence of the type of dog he owned at the time of the alleged commission of count 5. The accused confirmed that he had travelled with KW and his family on a holiday to New Zealand in either the late 1970's or the early 1980's. KW gave evidence of the accused expressing some jealousy during that trip. I accept this evidence as truthful, although it is not of great significance. The complainant also made a complaint to his wife in delayed fashion, but this is also explained by the matters I have identified above. Even when he disclosed what had happened to him in his childhood the disclosure was reluctant for reasons of embarrassment and shame. He had engaged in many acts of a sexual nature with the accused and if, in relation to count 4, he volunteered an additional action of the accused not previously identified in his statements, rather than being a recent invention that detracted from his credibility, it is explained as a result of having to remember so many sexual acts committed by the accused upon him from an early age.

In relation to counts 6 - 10 DC was the least impressive of the key witnesses that gave evidence. However, his general credibility is enhanced by his approach to the police in early December 1987, within 2 ½ years of the commencement of continuing sexual conduct of the accused towards him that was ongoing up until the complainant went to the police. Of course, the details of the allegations he made in the statement he gave Inspector Scott are not known. But they comprised allegations of 'sexual abuse' which were consistent with the accused having a sexual involvement with him. The complainant also made private complaint in general terms to members of his family at this time of sexual abuse, in general terms, which enhances his credibility .His family members were honest, straight forward witnesses. The complainant made complaint of a sexual relationship with the accused to Meagan Barr relatively soon after relevant events and there is evidence that supports the complainant's claim that his offences of damaging the accused's property by fire on 21 October 1988 were motivated by 'payback' at the accused's sexual abuse of him, from his half sister Lynda Foreman. One of the difficulties with this evidence concerning the conduct of the complainant in 1987/1988 is that it does not necessarily support the commission of criminal offences between 1985 and 1986, particularly as DC concedes a continuing sexual relationship with the accused as well as a hot and cold commercial relationship with him after he turned 16 up until his mid 20s. There is also the fact that over almost a decade DC would break off his relationship with the accused then re-establish it for his own benefit. That was to gain access to motorbikes that he otherwise would not have been able to have at a time when he was an adult. He had the freedom to pick and choose what relationship he wished to have with the accused from the time he was 18 years of age.

I do not accept that the accused threatened him in the terms that he claimed after he had made his statement to police in late 1987. Certainly, given the length of time from its occurrence and complaint of it (assuming that was in 2001) I could not conclude that it constitutes an admission of guilt by the accused. I accept that DC voluntarily withdrew the statement, at least in part, out of embarrassment and an unwillingness to have the nature of his relationship with the accused made public beyond his family. There is no basis for concluding that the accused would have known about the statement that DC had given to the police from any source, unless someone in DC's own family told the accused inadvertently, given what I understand to be the close-knit character of the Morisset community in this period of time. There is no suggestion that Inspector Scott told the accused or that the accused had any inside information from the New South Wales Police Force. But even if the accused had caused him to withdraw the statement, the threat did not stop the resumption of the relationship of the complainant with the accused over the next 7 or 8 years. He had other good reasons to withdraw his allegations even if they were true. He would have been embarrassed if 'word' of the sexual activity got out, so to speak. He was also in many ways beholden to the accused. DC may have been in his own view "blackmailed" into maintaining a relationship by the lure of access to motor cycles, but his involvement with the accused was completely voluntary for a number of years. He maintained a relationship with the accused when he was in a relationship with the accused's niece. He had complained to her in general terms of the accused's abuse without particularising when it occurred, even when he disclosed anal intercourse in the late 1990's. She could not understand why he continued the relationship.

DC's evidence however is supported partially by KW as to the presence of DC at the Wyee property in 1985 and is supported by the evidence of MS, both as to the opportunity for the accused to have a sexual relationship with DC and the tendency so to do. However, the difficulty in relation to this complainant is determining what precisely was the character of the sexual relationship and whether the specific acts alleged by the prosecution to found specific charges were committed by the accused. Also, the evidence of DC conflicts with the account of GG as to the circumstances in which the accused is alleged to have had anal intercourse with GG such as to give rise to count 12 in the indictment. If the Court was satisfied beyond reasonable doubt of the truthfulness of GG's version, then DC's version lacks credibility. That is a matter relevant to the assessment of his credibility in relation to other allegations that he makes. On the other hand, such is the character of the conflict between the two versions that it may be difficult to be satisfied of GG's version beyond reasonable doubt. The critical point is that on GG's account count 12 arose in circumstances where DC was present, but not a participant on the first occasion that the accused had anal penetration, albeit partially, of him. DC gives an account of being present when the accused anally penetrated GG for the first time in his presence, according to his chronology of events, where not only was he an active participant, but where he said he had anal penetration of GG at a time when he was 17 or 18 years of age. GG made no such claim at that time.

I am required to bear in mind that DC had a consensual sexual relationship with the accused for a number of years after he turned 18. Further, it is clear that DC held a long-standing grudge against the accused for what he regarded as being a commercial betrayal in relation to ownership or equity in motorbikes initially purchased by the accused but given to DC to use competitively and/or privately. I did not regard the evidence of DC regarding his discussions with GG about giving a statement to the police before that actually occurred as accurate and/or truthful. There was really nothing to be untruthful about. Even if he had admitted frequent discussions with GG and the terms of the discussions, that would not necessarily mean that his essential allegations against the accused were untruthful, particularly bearing in mind the timing of his relationship with the accused and the relationship of GG with the accused.

Taking these matters and the others I am required to consider into account I still accept that from a short time after meeting the accused there was sexual activity between the accused and DC. On the other hand, DC may have lit the fire as 'payback' to the accused but this contemporaneous claim to the fire does not enhance the credibility of his allegations of being sexually assaulted over 2 years before, although it may enhance his credibility as to his claim of an ongoing sexual relationship at that time.

With regard to DC one matter that supports his account of sexual relationship with the accused is that he was described by Meaghan Barr as sleeping in the same bed as the accused in the month she stayed at the accused's property at Freemans Waterhole. This directly contradicts the evidence of the accused as does the other evidence from the complainant's family of DC's living arrangements in 1986-88. The accommodation was a mere caravan with limited sleeping facilities. She slept outside the caravan on her account and that of the accused. This evidence is supportive of DC and the accused having an ongoing sexual relationship at that time as claimed by him, but after the period covered by the counts as I understand her evidence. She was a convincing witness.

Although the allegation in count 6 is generally denied by the accused, no particular attack was made upon its particulars from the evidence the complainant. In the context of all relevant matters I am satisfied beyond reasonable doubt this count is made out. The conduct alleged against the accused by the complainant is "gross indecency" given its nature and the age of the victim.

With regard to count 7, criticism of the particulars supplied by the complainant included conflict in his evidence at trial with his evidence at the special hearing or in statements as to the character of the alcohol drink given to him allegedly by the accused, the order of events, the circumstances in which Vaseline was obtained to permit anal penetration.

With regard to count 8, in the context of the warnings to be given and the other general criticisms of the evidence of the complainant (which must be taken into account in relation to all counts), the accused points to the change in the Crown case as to what act and when it occurred constituted the act of gross indecency. The Crown opened its case on the basis that the act of gross indecency was committed after the anal penetration by the accused masturbating the complainant until he ejaculated. In his evidence the complainant conceded in cross-examination that there was no masturbation of him after the anal penetration.

The Crown case at the end was that the act of gross indecency (count 8) occurred before the anal penetration and included masturbation of the complainant and the performance of oral sex upon him. Complaint is made by the accused is that this is a fundamental change in the Crown case in the context of decisions referred to in submission, such as King v The Queen (1986) 161 CLR 423 and The Queen v Howard [2005] VSCA 235 at [28] - [30]). For the reasons outlined in the discussion with learned counsel for the accused the issues that arise in those cases are not directly pertinent to whether the Crown had proven its case in this trial given those authorities are concerned with claims of miscarriage of justice by reason of the change of case alleged. In any event, the change of case in King was a fundamental one which could not be addressed at all by the accused. Such is not the case here. However, I accept that the change in the evidence of the complainant is relevant to the assessment of the complainant's credibility as all inconsistencies or conflicts in the evidence will be to varying degrees.

On the totality of the evidence, noting everything that is been put on behalf the accused, I am satisfied beyond reasonable doubt that the accused anally penetrated the complainant as he alleged in relation to count 7. The claimed change in the evidence of the complainant whilst adverse to his credibility to a degree, in conjunction with other matters including the accused's evidence, does not raise the reasonable possibility that anal intercourse did not occur. The complainant was engaged in a lengthy sexual relationship with the accused from the age of 15 until well past his 18th birthday in which he and the accused engaged in many sexual acts. Appreciating that in relation to these counts the complainant is the Crown case, the matters Mr Norrie skilfully identifies and which the court may additionally identify reflecting upon the credibility of the complainant and the assessment of his evidence are not such to raise a reasonable doubt of the accused's guilt in relation to count 7. On the other hand, whilst I am satisfied there was other sexual activity at the time of the anal penetration, I am not satisfied beyond reasonable doubt of the particular character of that sexual activity, whether it be the complainant masturbating the accused, the accused masturbating himself or he masturbating the complainant. Thus, all relevant warnings taken into account, I am not satisfied beyond reasonable doubt that count 8 is established.

No particular criticisms were made by counsel for the accused in respect of the detail of the evidence in relation to count 9. However, in relation to count 10 a number of detailed criticisms were made. These criticisms included matters which reflected what was said to be a "theme respect to this particular complainant ... that there is some confusion about some of the acts that he alleges were performed by the accused on him, including the surrounding circumstances" (Page 1317). Some of the matters that arise in relation to count 10 include confusion on the part of the witness as to what alcohol he drank before he said he was sexually assaulted, having given evidence in the trial that he drank a number of Bourbons and Coke but in his 2001 statement having stated that he drank about six Malibus and milk. In his evidence in chief he initially did not disclose any anal intercourse on this occasion but after a break in his evidence the following day gave evidence of an act of anal intercourse committed upon him by the accused. His evidence in chief had indicated initially that he had anally penetrated the accused and that the accused had not done anything to him, which he corrected by his later evidence in chief. It emerged in cross examination that he had not in his statement in 2001 revealed that on the second occasion that the accused anally penetrated him he had performed anal sex upon the accused, nor had he revealed this in his evidence in 2009. He conceded in cross-examination that the incident where they each performed anal sex on one another possibly could have been one other than that which occurred two weeks after the first act of partial anal intercourse. I accept that there was confusion in the evidence in chief and arising from the cross examination of the witness in respect of the events giving rise to count 10. I accept that this is relevant to the assessment of his reliability. His claim of performing anal penetration of the accused in relation to this event may be categorised as a 'recent invention' which may be adverse to his credibility. But the complainant was trying to remember many sexual acts with the accused over a lengthy period of time.

In the context of the evidence of the witness as to the series of events which culminated in the accused performing anal intercourse on him that particular act is not a recent invention. I am satisfied as truthful the evidence of the complainant that there was an act of anal intercourse performed on him by the accused that satisfies count 10 within the period particularised in the indictment. I am satisfied of the truthfulness of this evidence, notwithstanding the reservations I have in relation to count 8 and the above particularised specific criticisms of the evidence of the complainant in relation to count 10, as well as the many other issues I am required to take into account relating to this complainant. This conclusion includes consideration of the evidence of the accused and other relevant matters.

With regard to count 11 the only admissible evidence relevant to this count comes from DC. There is contextual evidence which is unchallenged that the accused knew RR at a time shortly after he met DC and MS and this is not disputed materially by the accused. There is evidence directly of the fact that the accused had a sexual relationship with RR from GG, at the Bonnells Bay residence. I accept as truthful the evidence of DC that he was present when the accused performed an act consistent with anal penetration with RR. However, the fact of actual penetration is dependent upon the reliability of contemporaneous hearsay representations, it is not a matter that DC can confirm from direct observation. I am also mindful of the inconsistency in the evidence of DC as to the length of time over which he said he was present whilst the accused conducted a sexual relationship with RR in general terms. But in the context of the lengthy period that DC was involved with the accused and the length of time since the relevant events this is not a significant matter. There is no admissible evidence from RR to establish the homosexual intercourse required to be proven. Accepting as truthful the essential evidence of DC, as with count 5, this is a matter where an alternative statutory count of attempted homosexual intercourse has been established beyond reasonable doubt. In relation to this matter there is no evidence of "concoction" or contamination between DC and RR, or that person with any other witness.

With regard to GG, as with DC, his evidence reveals a real possibility for concoction or contamination which is a matter relevant to the assessment of his credibility. But whilst there was a real possibility of contamination as to the particulars of his sexual relationship with the accused which has implications for the use of his evidence for "tendency" purposes it does not necessarily mean that he should be disbelieved in respect of their evidence of the character of his sexual relationship with the accused.

Counsel for the accused pointed to some inconsistencies in the evidence of GG with previous versions, particularly in his police statements, in regard to matters such as the circumstances of his first meeting with the accused, how we came to visit the accused's property at Freemans Waterhole, the circumstances of that and subsequent visits, the number of times on the first occasion that he visited the Freemans Waterhole property the accused stopped along the way as he was driving him to it, amongst other matters. These matters were quite minor matters that are not significant. I note that GG had given two statements, both detailed, with one particularly addressing what was described as the "timeline" of events upon which the witness one can assume had concentrated on well before he gave evidence in this trial. I accept the evidence of GG, supported by the evidence of DC, that the accused had the opportunity to sexually assault the complainant in the manner he described over a period of time. This complainant noticed bleeding from his anus after the first penetration. This is supportive of his allegations in that this observation is consistent with him having been anally penetrated. The fact that other complainants did not notice bleeding is not significant, in the context of the accused using lubricant and there being no evidence of any peculiarity of the accused's penis to suggest a pronounced likelihood of injury from penetration. This is so even though every complainant who gave evidence of anal penetration said that on the first occasion and early subsequent occasions the penetration "hurt". I note in passing that DC said that he never bothered to check his anus to see if there was any bleeding when he went to the toilet after the first acts of sexual intercourse.

I am required to have close regard to the evidence of GG relevant to count 12, to consider whether it is in conflict with the evidence of DC that may relate to count 12, such as to have a reasonable doubt as to the guilt of the accused of that count as it has been pleaded and particularised by the Crown. This was a matter that I squarely raised with the Crown in submissions (pp 1203 - 1206, 1243 - 1251) and was the subject of particular submissions by the accused in the context of my discussion with the Crown (pp 1324-1328, 1350 - 1352). All things taken into account in my view it is at least reasonably possible that the witnesses are endeavouring to describe what is the first alleged anal penetration of this complainant. The significance of this event is that it is the first occasion that it is alleged the accused penetrated the complainant GG with his penis such as to commit that offence of homosexual intercourse. Of course, a common element in both accounts is that the accused anally penetrated the complainant (or appeared to according to DC) which establishes the offence. However, the two versions by the two witnesses are irreconcilable. I conclude that it is at least reasonably possible that they are both attempting to describe the first occasion that the accused had penile penetration of the complainant, because GG says so. DC not only does not describe any previous such occasion but claimed that the accused told him that he had "got at" GG, implying that he had sex with him in some way when DC was away in Beaudesert. This he had done by performing "hotheads" without performing anal penetration upon him. He does not describe any other event where he was present as a spectator watching the accused have anal intercourse with GG beforehand.

The differences in their accounts are fundamental. DC played no role according to GG. Whereas DC, who had never seen GG anally penetrated by the accused before, had anal intercourse with the complainant whilst the accused has anal intercourse with him. This is a event as recounted by DC is not the subject of evidence by GG. I accept that the accused had a sexual relationship with GG that included anal intercourse at some point. But I cannot, on the totality of the evidence and warning myself appropriately, conclude beyond reasonable doubt that the intercourse occurred in the circumstances described by the complainant such as to establish this count.

As for count 13, beyond the general attack upon GG's credibility in the context of the various warnings and directions requiring caution and scrutiny of his evidence, there was little in the way of criticism of his account such as to reflect upon the credibility of the detail he gave in relation to this count. Certainly nothing of significance. In any event, there is powerful evidence of the accused knowing GG at the relevant time, having opportunity to sexually assault him including evidence from the accused, and there are other aspects of the matter, such as the general complaint of 'sexual abuse' 11 or so years later in private before going to the police. I appreciate this private complaint evidence does not identify the accused and occurs at a time after the witness has had discussions with DC about going to the police to which I made earlier reference. The fact that the two men discussed going to the police speaks not necessarily of "invention" of sexual misconduct on the part of the accused even if there is a real possibility of concoction or contamination in relation to the detail of that sexual abuse. There is also in support of GG, as with DC, evidence of a previous sexual attraction to boys as contended by the Crown as a tendency from MS and KW. Although the allegations of GG are more distant than those of DC from the evidence in support of the tendency they are not so distant to lack significant probative value. I am satisfied that count 13 has been made out beyond reasonable doubt. I am also satisfied beyond reasonable doubt that the accused in the period of time between early 1988 and 1990 had anal penetration of the complainant but do not have sufficiently reliable particulars in the evidence to conclude that the relevant count in this respect concerning this complainant has been made out.

In addition to the warnings earlier outlined, the evidence of GG with regard to count 14 must be approached with some caution. He had a commercial grudge against the accused at the time of the end of their relationship and was coming of an age to resent the accused's sexual behaviour towards him. He alleged that the accused had physically assaulted him in the course of a dispute of a commercial nature which was not ultimately resolved to his advantage. Closely regarding the account of the father of the confrontation he had with the accused after the alleged assault, the father does not assert that the accused admitted assaulting his son, although it is clear on the father's evidence there had been some confrontation between his son and the accused over the ownership of a motorcycle and/or the amount of money owed on it by the complainant. The father, however, does not give any evidence of any physical sign of injury on his son, nor that his son gave him any specific particulars of the character of the assault committed upon him. It is to be remembered the GG claims a 'king hit' and being kicked in the ribs by a man obviously bigger than him. The king hit allegedly "dropping him to the floor" without any injury. As the complainant is the only person who asserts these actions by the accused and in the absence of any specific support for that particular allegation (other than the evidence from the accused and the father that supports the existence of a relationship between the parties and that there was a dispute over money owed on a motorcycle that led to the termination of the relationship) and the delay in the making of this allegation, which is not properly explained unlike the sexual contact I am not satisfied beyond reasonable doubt that count 14 is established.

CONCLUSION

For the reasons set out above I have concluded that the accused is guilty of counts 1, 2, 3,4,6,7,9,10 and 13. I am satisfied that the accused is guilty of attempting to commit the crimes particularised in counts 5 and 11. I find the accused not guilty of counts 8, 12 and 14.

**********

Decision last updated: 24 February 2014

Medium Neutral Citation:	R v ANNING [2013] NSWDC 285
Hearing dates:	28/11/2013
Decision date:	18 December 2013
Jurisdiction:	Criminal
Before:	S Norrish QC
Decision:	Counts 1, 2, 3,4,6,7,9,10 and 13 - guilty Counts 5 and 11 - guilty of attempting to commit. Counts 8, 12 and 14 - not guilty.
Catchwords:	CRIMINAL - Trial by judge alone, sexual assault, delay in complaint, tendency evidence, context evidence.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995 Crimes Act 1900
Cases Cited:	R v VN [2006] VSCA 111 R v Z (2000) 3 All E R 385 R v Howard [2005] VSCA 235 R v Mai (1992) 26 NSWLR 371 Giorgianni v The Queen (1985) 156 CLR 473 Fleming v The Queen (1998) 197 CLR 250 The Queen v Storey & Anor (1978) 140 CLR 364 Rogers v The Queen (1994) 181 CLR 251 R v Carroll (2002) 213 CLR 635 R v Fletcher (2005) 156 A Crim R 308 R v DAO [2011] NSWCCA 63 Colby v The Queen [1999] NSWCCA 261 BP v R [2010] NSWCCA 303 R v Shamouil (2006) 66 NSWLR 228 R v PWD [2010] NSWCCA 209 DPP v Dupas [2012] VSCA 328 R v Ford [2009] NSWCCA 306 R v Li [2003] NSWCCA 407 HML v The Queen (2008) 235 CLR 334 King v The Queen (1986) 161 CLR 423
Texts Cited:	Criminal Law in NSW, LBC (1971) - Watson and Purnell Vol 1
Category:	Principal judgment
Parties:	Crown Henry Alfred Anning - offender
Representation:	Ms K Trail - Crown Mr A Norrie - offender Director of Public Prosecutions Newtons Law
File Number(s):	2007/13848/15937