R v Bell
[2002] NSWCCA 2
•1 February 2002
CITATION: Regina v Bell [2002] NSWCCA 2 revised - 28/02/2002 FILE NUMBER(S): CCA 60557 HEARING DATE(S): 19 July 2001 JUDGMENT DATE:
1 February 2002PARTIES :
Regina v Philip Harold BellJUDGMENT OF: Handley JA at 1; O'Keefe J at 2; Smart AJ at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/11/0548 LOWER COURT JUDICIAL
OFFICER :Davidson DCJ
COUNSEL : (A) In Person
(C) R HulmeSOLICITORS: (A) In Person
(C) S E O'ConnorCATCHWORDS: Multiple sexual offences - conviction after trial of 28 offences - plea of guilty to a further 16 offences with 31 other offences taken into account - notice of abandonment of appeal - refusal of leave to withdraw such notice - alleged fresh evidence but relevant facts known - no miscarriage of justice - admission of tendency and/or co-incidence evidence - no error in refusing separate trials - credibility of witnesses - alleged discrepancies and problems dating incidents which happened many years ago - adverse pre-trial publicity and publicity during trial - directions to jury to overcome publicity - verdicts reasonable and supported by evidence LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995CASES CITED: R Cartwright (1989) 17 NSWLR 243
R v Jeffery NSWCCA unrep 16 December 1993
R v Brandy NSWCCA unrep 28 October 1996
R v Combe NSWCCA unrep 24 April 1997
R v Young [1999] NSWCCA 275
R v Lock (1997) 91 A Crim R 356
R v M J White [1999] NSWCCA 336
R v Smith [2000] NSWCCA 468
R v Giam (1994) 104 A Crim R 426
S v The Queen (1989) 168 CLR 266
Pfennig v The Queen (1995) 182 CLR 461
Hoch v The Queen (1988) 165 CLR 292
R v PH NSWCCA, unrep 4/3/94
R v Milat NSWCCA unrep 26/2/98
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
Gipp v The Queen (1998) 194 CLR 106
Fleming v The Queen (1998) 197 CLR 250
R v Bell NSWCCA unrep 8/10/98DECISION: Leave to withdraw Notice of Abandonment of appeal against convictions refused. Leave to appeal against convictions out of time refused.
IN THE COURT OF
CRIMINAL APPEAL
HANDLEY JA
O'KEEFE J
SMART AJ
NON-PUBLICATION
1 HANDLEY JA: I agree with Smart AJ.
2 O'KEEFE J: I have read the judgment of Smart AJ in draft. I agree with his conclusions and
with the orders proposed by him.
3 SMART AJ: The media is reminded of s.578 of the Crimes Act 1900 which provides that a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any other matter which is likely to lead to the identification of the complainant. These are prescribed sexual proceedings and there are some 18 complainants. At the hearing on 19 July 2001 an order was made prohibiting the publication of the names of two witnesses at the trial. The effect of the section and of the orders made is to prohibit the publication of the names of those people who were the victims or alleged victims of the sexual activities of Philip Harold Bell.
4 The offences and the sentences
Philip Harold Bell seeks leave to withdraw his Notice of Abandonment of an earlier appeal, an extension of time within which to appeal and leave to appeal against his conviction by the jury after a lengthy trial on 16 charges of homosexual intercourse with a male between the ages of 10 and 18 years under s 78K of the Crimes Act 1900 (counts 6, 7, 8, 10, 11, 12, 13, 14, 16, 17, 18, 21, 30, 31, 32 and 38), 3 charges of assaulting with an act of indecency a child under 16 and under the applicant's authority under s 61E(1A) of the Act (counts 34, 35 and 36), 2 charges of indecently assaulting a male under s 81 of the Act (counts 3 and 4), 6 charges of assaulting with an act of indecency a child under 16 pursuant to s 61E(1) of the Act (counts 24, 25, 26, 27, 28, and 29) and 1 charge of committing an act of indecency with a child under 16 under s 61E(2) of the Act (count 2). These 28 offences involved 5 children and were contained in the first indictment. The applicant also seeks leave to appeal against some of the sentences imposed.
5 The jury acquitted the applicant of a further 10 charges being 5 charges under s 78K of the Act (counts 9, 19, 20 22, 23), 2 charges under s 61E(1A) (counts 33 and 37), 2 charges under s 81 (counts 1 and 5) and 1 charge of inciting an act of indecency by a child under 16 under 61E(2) (count 15). The verdict on count 23
was entered by direction.
6 After the verdicts were delivered on 30 November 1998 the applicant was remanded for sentence on 5 February 1999 on which date he pleaded guilty to a further 16 charges on a second indictment involving 13 additional victims. There were 3 charges of homosexual intercourse with a male of or above 10 and under 18 under s 78K of the Act (by virtue of s 78T effectively under 16) (counts 2, 8 and 13), 1 charge of committing an act of indecency towards a person under 16 (count 9), 1 charge of inciting an act of indecency by a person under 16 as amended on 9 February 1998 (count 15), 2 charges of indecently assaulting a male (counts 14 and 16), 6 charges of assault with an act of indecency (counts 1, 3, 4, 10, 11 and 12) and 3 charges of assault with an act of indecency upon a child under the applicant's authority.
7 On 5 February 1999 the applicant also admitted his guilt in respect of a further 31 charges, which he asked to be taken into account in sentencing him, on the pleas of guilty entered on that day. They were taken into account as follows:
On count 2: 2 charges of homosexual intercourse, 3 of indecent assault and one of inciting an act of indecency by a person under 16;
On count 4: 1 charge of indecent assault;
On count 5: 2 charges of indecent assault;
On count 6: 6 charges of indecent assault of a child under 16 and under the applicant's authority;
On count 8: 1 charge of homosexual intercourse under 78K and 5 of indecent assault of a child under 16 and under the applicant's authority;
On count 10: 2 charges of indecent assault and one of inciting an act of indecency;
On count 11: 4 charges of inciting an act of indecency by a person under 16 and 1 of indecently assaulting a child under 16;
On count 14: 1 charge of indecently assaulting a male.On count 12: 1 charge of inciting an act of indecency by a child under 16;
8 On 12 February 1999 the judge accordingly sentenced the applicant for 44 offences with 31 similar offences taken into account. 19 of those similar offences were of homosexual intercourse with a child between 10 and 16. There were 75 offences committed over a period from about 1978 until about 1991 although the earliest in 1978 and 1979 were isolated incidents. The rest of the offences were within the years 1981 to 1991 and involved an almost continuous course of serious sexual offences. The offences involved 18 boys under the age of 16.
9 Incorporating the corrections made on 24 September 1999 the judge imposed these sentences of imprisonment:
The first indictment:
(a) As to count 31 (homosexual intercourse), a fixed term of 4 years 6 months starting on 30 May 1997 and ending on 29 November 2001;
(b) As to count 6 (homosexual intercourse) a fixed term of 3 years 6 months starting on 30 November 2001 and ending on 29 May 2005;
(c) As to count 18 (homosexual intercourse), a sentence of six years comprising a minimum term of 2.5 years starting on 30 May 2005 and ending on 29 November 2007 with an additional term of 3.5 years starting on 30 November 2007 and ending on 29 May 2011;
(d) The judge found special circumstances arising solely by reason of
the cumulation of the sentences.
These were the major sentences.
(e) On each of counts 7, 8, 10, 11, 12, 13, 14, 16, 17, 21, 30, 32 and 38 of the first indictment and counts 2, 8 and 13 of the second indictment (homosexual intercourse), 3 years imprisonment starting on 30 May 1997.
(f) On each of counts 34, 35 and 36 of the first indictment and counts 5, 6, and 7 of the second indictment (indecently assaulting a child under 16 and under the appellant's authority), 2 years imprisonment. No starting date is specified but presumably this was intended to be 30 May 1997.
(g) On each of counts 24, 25, 26, 27, 28 and 29 of the first indictment and counts 1, 3, 4, 10, 11 and 12 of the second indictment (indecent assault)., 18 months imprisonment. No starting date is specified but presumably this was intended to be 30 May 1997.
(i) On each of count 2 of the first indictment and counts 9 and 15 of the second indictment (two of committing an act of indecency and one of inciting an act of indecency), 12 months imprisonment. No starting date is specified but presumably this was intended to be 30 May 1997.(h) On each of counts 3 and 4 of the first indictment and counts 14 and 16 of the second indictment (indecently assaulting a male), 15 months imprisonment starting on 30 May 1997.
10 All sentences except those imposed on counts 6 and 18 have been served, if, as to the offences where no starting date was specified, the assumed starting date is correct. The applicant stated that his application for leave to appeal against the severity of his sentences was limited to the sentences imposed on counts 31, 6 and 18.
11 The applicant challenges all his convictions but pivotal to his challenge are the convictions for some three offences being counts 2 to 4 and involving M during the period 26 October 1983 and 25 October 1984 (count 2) and the period 26 October 1983 and 30 April 1994 (counts 3 and 4). 26 October 1983 was M's thirteenth birthday. The applicant's case is that the sexual offences alleged did not happen and could not have happened as alleged or it was highly improbable that they happened as alleged because the evidence of other boys which covers the critical period shows that he was pre-occupied with the other boys and that M was not present during this period and that for part of the period he (Bell) was overseas. It is claimed that that evidence did not become known and available to the applicant until after May 1999, about six months after his trial concluded. It was contended that if M's evidence as to counts 2-4 is unsound this affects the credibility of M as to counts 6-13. Further as his evidence was used as "similar facts" or "tendency" evidence as to the other counts none of the convictions should be allowed to stand.
12 Notice of Abandonment and Further Appeal
The applicant filed a Notice of Appeal against conviction on 22 December 1998. As he had not been sentenced at that time he could not seek leave to appeal against sentence. As earlier mentioned he was sentenced on 12 February 1999. A Notice of Abandonment signed by the applicant and dated 24 March 1999 was forwarded by his solicitor to the Court Registry that day.
13 The appeal had been listed for mention before the Registrar on 29 March 1999 to set a hearing date. In his letter forwarding the Notice of Abandonment the applicant's solicitor requested the Registrar to remove the matter from the list for that day. On that day the Registrar noted the Notice of Abandonment. The appeal was deemed to be dismissed: Rule 27 of the Criminal Appeal Rules.
14 Consequent upon the applicant abandoning his appeal, the Director of Public Prosecutions wrote to the applicant on 19 April 1999 advising that he (the Director) had decided to proceed no further on the other matters remaining in respect of the applicant and that there were no outstanding charges in relation to him. This is of some importance because initially there were some 170 charges against the applicant. The Court dealt with 75 of them.
15 On 30 May 2000 the Victims Compensation Tribunal issued two provisional orders for restitution against the applicant, one for $50,000 in respect of M and one for $42,785 in respect of BB. These were the amounts of compensation which had been awarded to them. The provisional orders stated that the applicant had 28 days to file a notice objecting to such orders. A notation of the applicant on each provisional order (beside the paragraph reading "Notice of objection to the Order must be filed in the Office of the Director, Victims Compensation Tribunal …" states "Notice given on grounds of appeal dated 22-6-00". On the bottom of the provisional order as to M this further notation appears "I am appealing all convictions relating to [M]". The service of the orders may have been the catalyst for the present appeals. Apparently, the applicant did not realise that the Victims Compensation Tribunal could seek reimbursement from him.
16 By letter of 22 August 2000 the applicant's solicitor forwarded a Notice of Appeal and Application for Leave to Appeal and Notice of Application for Extension of Time, both dated 24 July 2000 and signed by him. Some legal aid was granted to the applicant probably about early October 2000. Thereafter, the trial transcripts were sought. The advice of Senior Counsel was sought. By letter of 27 April 2001 the applicant's solicitor advised the Court that he ceased to act for the applicant.
17 In his written submissions the applicant has submitted that since his abandonment of his appeal fresh evidence has emerged which goes to the heart of the Crown case against him and that if the jury had known of that evidence they may well have acquitted him of all the counts on which he was found guilty. This was the principal ground advanced in support of his applications for leave to withdraw his Notice of Abandonment and an extension of time within which to appeal against conviction and sentence. The applicant contends that the fresh evidence emerged from the release of a report of the Wood Royal Commission into the NSW Police Service. This had been withheld from the public pending the finalisation of all proceedings against the applicant so as not to prejudice the fair conduct of his trial. The original report was made in August 1997.
18 By letter of 12 May 1999 the Police Integrity Commission advised that as the proceedings against the applicant had concluded the Royal Commission report could be made public. This occurred during May 1999.
19 That revealed that the witness A7, then aged 13, met the applicant when swimming with two boys in the heated swimming pool of the apartment block in which A7 lived with his mother. The applicant who also lived in that block, invited the boys up to his apartment. When A7 and the other two boys went to the applicant's apartment he talked them into masturbating with him.
20 In his evidence before the Royal Commission A7 explained that at that stage he did not have a lot of contact with his father. The applicant encouraged A7 to telephone his father. A7 did and they regained contact from there. In late 1983-early 1984 A7 was boarding at a school in Orange. A7 said that during the school holidays (December 1983-January 1984) and mainly at weekends he spent most of his time with the applicant. He went out about 10-12 times on the applicant's boat and that he had further sexual encounters with the applicant which included masturbation. A7 said that about Easter 1984 (when A7 was on holidays from boarding school) the applicant took him to the applicant's farm at Yarrahapinni (Kempsey-Macksville District) and that the applicant masturbated A7 at his Darling Point apartment, his Whale Beach house and his farm.
21 The acts of the applicant towards A7 formed the basis of a number of charges preferred against the applicant which were to be the subject of a separate trial starting in early 1999. That did not take place because of the applicant's plea of guilty. The indictment presented on 5 February 1999 and to which the applicant pleaded guilty contained two counts (9 and 10) relating to A7, one charging an act of indecency towards A7 and one an indecent assault on A7, both alleging that A7 was under 16 and both occurring between 13 March 1983 and 8 May 1984. Three offences involving A7 were taken into account, namely two counts of indecent assault between 1 December 1983 and 8 May 1984 at Whale Beach and Darling Point respectively and one of incite person under 16 to an act of indecency at Yarrahapinni between 1 April 1984 and 8 May 1984.
22 In his further written submissions of 17 July 2001 the applicant said that when he was convicted on most of the M counts, it was proven to him that the Crown could secure convictions on evidence that was uncorroborated, contaminated, contradictory and inconsistent and which he knew to be fabricated. He said that he signed the notice of abandonment realising that he would need fresh evidence to resurrect the appeal and prove that M's story was indeed fabricated. He did not find that fresh evidence until after the publication of the Royal Commission Special Report. He became aware of its terms in late July 1999. He spent much of the year 2000 trying to arrange legal representation but he had no money. Ultimately he decided to represent himself. The applicant claimed that this explained the time delay. These submissions are erroneous. The applicant was fully aware of the position as to A7 and the other boys. Not only had he lived through the events but he was aware of the Crown material. He had a mastery of all the detail.
23 The applicant sought an order quashing all his trial convictions and an order that if the DPP proceeded with fresh trials, three fresh trials be held, one as to M alone, one as to BB, JL and DC and one as to CA. The applicant stated that there was no appeal relating to any charge to which he pleaded guilty in February 1999.
24 At the sentencing hearing in February 1999 the Crown handed to the Court a Statement of Facts relating to the offences against A7. It was one of a number of statements of facts extending over 18 pages given to the sentencing judge. These statements were agreed between the Crown and the applicant (and his legal advisers) over a number of days. The statement relating to A7 was signed by the applicant. It states that A7 first met the applicant in the summer of 1983/84 while A7 was with two other boys, that the applicant introduced himself to them and that thereafter A7 began to spend a lot of time in the applicant's company in his apartment, on his boat, at his house at Whale Beach and once at his farm at Yarrahapinni. Often A7 was in the company of two friends. The applicant took them water skiing, bought them food and gave them presents. The relationship ended in late 1984. Over this time the applicant indecently assaulted A7 between 20 and 50 times at the farm, at Whale Beach and at Darling Point usually involving masturbation sessions with other boys in front of pornographic videos.
25 This brief summary shows that in February 1999 the applicant was well aware of the facts relating to A7 and the period during which it was said that the activity involving A7 took place. There is a specific reference to their meeting in the summer of 1983/84. Trips on boats were likely to have taken place in the summer school holidays before A7 returned to boarding school in the country. The applicant must have known that A7 would be able to give evidence as to their association in the summer of 1983/84 and at Easter 1984. The release of the Royal Commission material only confirmed what the applicant knew.
26 When the police brief was served on the Legal Aid Commission on 6 May 1997 it included a folder containing statements of the complainants, A7 and his two friends (B36 and A6). An index was located in the front of that folder setting out its contents. The index referred to an electronically recorded interview with A7 on 11 January 1996 and that he had been involved in numerous masturbation sessions with the applicant and others at Darling Point, Whale Beach and Yarrahapinni. There are references in the index to statements by B36 and A6 to the same effect. The reference in the index to the interview with A6 refers to the initial meeting at the pool at the Darling Point apartments and to going out on the boat.
27 The applicant asserted that while he was in custody awaiting trial he only had the files relating to his first trial in his cell. That did not include the folder as to A7, B36 and A6. It was in store in another part of the prison. Two comments should be made. The applicant must have known what he had placed in storage. Further, he would have been well aware of what each of A7, B36 and A6 could say. The applicant and they had lived through memorable events.
28 The materials establish that for many years the applicant was aware of the evidence that A7, B36 and A6 could give. His relationship with them lasted for the best part of a year and was quite intense. He was reminded again of that evidence when the police brief was served. He became aware of the allegations which were to be and were in fact the subject of his first trial. He sought and failed to have separate trials of some of these counts. He knew that the counts involving A7, B36 and A6 and some others were to be the subject of his second trial listed to start in February 1999. That fixture was cancelled on 30 November 1998. At his first trial the applicant objected to coincidence evidence being given by two witnesses who were not complainants in that trial. The applicant was anxious to confine the evidence against him. If A7, B36 and A6 had been called in the first trial by the Crown this would have had markedly adverse effects on the applicant's case for acquittals and would have been very damaging to the applicant's overall case.
29 Rule 27 of the Criminal Appeal Rules provides that upon a notice of abandonment being forwarded by an appellant to the Registrar the appeal or application shall be deemed to have been dismissed or refused by the Court. In the joint judgment of Hunt and Badgery-Parker JJ in R v Cartwright [1989] 17 NSWLR 243 it was held that where a Notice of Abandonment had been filed the Court could hear an appeal against conviction and an application for leave to appeal against sentence as no appeal on the merits had been heard and the Court had inherent jurisdiction to go behind r.27 to ensure that a miscarriage of justice did not go unremedied. The joint judgment continued at 246:
"For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences: R v Griffith (1969) 90 WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 78; 92 WN 9NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315)."
30 In R v Jeffery NSWCCA 16 December 1993, unreported, Badgery-Parker J said:
"The power of the court to grant leave to withdraw a notice of abandonment is a discretionary power. The circumstances in which it should be exercised are the subject of authority. In Regina v Stubbs (1970) 92 WN 9NSW) 768 it was held that leave should be granted only if it appears on the face of the application that some ground exists for supposing that there may have been fraud or at least bad advice given by a legal adviser which has resulted in an unintended and ill-considered decision to abandon the appeal.
The present did not appear on the face of it to be such a case for the applicant had made a considered decision upon advice from senior counsel which advice does not appear to have been fraudulent, ill-considered, incompetent or obviously mistaken. However, the court retains an inherent jurisdiction to go behind a notice of abandonment in a case where it appeared likely that there had been a miscarriage of justice which would go uncorrected if the notice of abandonment were allowed to stand: R v Bell (1987) 8 NSWLR 311, 314. Consequently, in such a case as the present, a decision as to whether the notice of abandonment should be set aside and the applicant allowed to proceed with his appeal is inextricably entwined with the question whether the appeal has real merit - ibid at 314."
31 In R v Brandy, unreported, CCA 28 October 1996 Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, reiterated that even if the explanation proffered for the abandonment was weak that would not necessarily stand in the way of the grant of leave to withdraw the abandonment if it be seen that there would be a miscarriage of justice if leave were refused. That involved an assessment of the applicant's prospects of success if the appeal were permitted to proceed.
32 In R v Combe, unreported CCA, 24 April 1997 Hunt CJ at CL, with the agreement of the other members of the Court, affirmed the views expressed by himself and Badgery-Parker J in Cartwright.
33 In R v Young [1999] NSWCCA 275 I said with the concurrence of Studdert and Dunford JJ:
"The cases make it clear that both in relation to an extension of time and leave to withdraw a notice of abandonment the question of a miscarriage of justice is important if there is not an adequate or reasonable explanation for the delay or for lodging the notice of abandonment. It is not the only consideration but a miscarriage is of itself often sufficient.
In sentence applications there will often be no prejudice to the Crown … [in granting leave]
Conviction appeals may involve different considerations. For example, witnesses may no longer be available or willing to give evidence. After the trial they may have tried to put the events out of their mind. After a substantial delay witnesses in identification cases may not be able to recall precisely what and whom they saw. No relevant objections to the summing-up may have been taken. On the other hand fresh or new evidence may emerge which puts an entirely new light on the case. As is obvious, much depends on all the circumstances of the particular application."
34 This case has some special features. It was after the appeal was abandoned that the Director of Public Prosecutions decided not to prosecute the remaining 95 charges. With head sentences totalling 14 years and minimum terms totalling 10½ years there was not a lot of point in proceeding with the remaining charges. That would involve further civilian witnesses having to recall painful events long past, much utilisation of police and prosecution resources and great expense.
35 The applicant had also been very fortunate that the judge had imposed light sentences on so many of the charges of the first indictment and made the sentences on other than counts 31, 6 and 18 and the counts in Indictment 2 concurrent, that is commencing on 30 May 1997 when some at least could well have been cumulative. It is not easy to understand why the sentences on the counts in the second indictment were not, at least in part, cumulative. It is not surprising that there was no appeal against the sentences imposed in respect of the counts in the second indictment. As earlier mentioned these serious offences stretched over a period of more than 10 years and involved 18 boys under the age of 16 years. The criminality involved is massive.
36 The main ground said to justify allowing the Notice of Abandonment to be withdrawn, namely, the publication of the Royal Commission report is without substance. The applicant did not seek to withdraw his notice of abandonment until after he had served all sentences except those imposed on Counts 31, 6 and 18 of the first indictment. Practically (if not theoretically) he was no longer at any risk from any Crown appeal that the sentences he had received were inadequate. Further, the applications for leave to withdraw his Notice of Abandonment and to appeal against sentence out of time were filed within a short period of his being served with the Provisional Orders for Compensation. His ground for opposing the confirmation of those orders was his proposed appeal.
37 All of the alleged offences occurred many years before the trial.. The trial took place in 1998. The appeal was abandoned in March 1999 in circumstances where the applicant appears to have received lenient sentences. The victims, their families and their witnesses were entitled to proceed on the basis that a long and sorry chapter had been finalised. It would be too much to have the victims and the witnesses re-visit these matters.
38 From the applicant's address to this Court it became apparent that he was highly intelligent, tactically astute, and possessed an agile mind and speedy thought processes. He represented himself with much skill.
39 The special features mentioned above, without more, compel the refusal of leave to the applicant to withdraw his notice of abandonment. However, because the authorities rightly attach much importance to the issue whether there has been a miscarriage of justice I propose to deal with that issue and the various grounds of appeal raised by the applicant.
40 Issue 1 -The early Offences against M - Counts 2, 3 and 4
I turn to the early offences involving M, born on 26 October 1970, and particularly counts 2 to 4 on the first indictment. M lived at Stuart's Point until about late March early April 1984 when he moved to Sydney. Stuart's Point is about 2.5 km from Yarrahapinni. He said that his parents separated when he was 7 and that he lived with his mother. There are two aspects of M's evidence, firstly, the substance of what occurred and secondly the approximate dates of their occurrence. The evidence demonstrates that he had some difficulty in pinpointing the dates of their occurrence. His description of the incidents is reasonably clear. The earlier ones occurred at the applicant's farm. As to count 1, M said that he was an enthusiastic surfer and spent a lot of time surfing at nearby Grassy Head. He rode his bike there and back balancing his surfboard under one arm. The applicant talked to him in the surf and then helped him by placing his surfboard in the back of the applicant's utility. He bought M items at the beach shop and was very friendly. The applicant surfed with M. M said that within a month of first meeting the applicant he went to the applicant's farm. M said that at the farm he went horse riding, motorbike riding, played pool and table tennis. The applicant had a boat and took M water skiing on the river in the vicinity of Stuart's Point. Sometimes there would be others including boys, young men and older men. The activities were great fun.
41 In his initial evidence in chief M thought the first sexual incident happened when he was aged 12 and in Year 7 at high school. It was about a month after he first met the applicant. It was towards the end of the year. He had gone with the applicant to the farm after surfing. The applicant asked M to sit beside the applicant on the lounge as he wanted M to look at something and when he did so put his arm around M and fondled M's penis. The applicant was acquitted of count 1. The judge in his remarks on sentence noted that senior counsel for the Crown in his address to the jury conceded that the jury might well return a verdict of not guilty on this count on the basis that they might have a reasonable doubt whether the Crown had established that the offence was committed within the range of dates alleged, time being an essential element of the charges in the particular circumstances. In his summing-up (SU20 of 19/11/98) the judge said that the Crown conceded that M may have been wrong when he talked of incidents occurring in 1981 or 1982 and that the events the subject of count 1 might have happened in 1983.
42 In the charge as initially preferred the Crown alleged that the events the subject of count 1 occurred between 26 October 1982 and 1 January 1983. On 22 September 1998 when a draft indictment was handed up in Court to enable the preliminary issues to be resolved the period specified was 26 October 1981 to 1 January 1983.
43 M explained that he went back to the farm because of all the activity available there and not otherwise available to him. Further, lots of boys hung around the farm and there was friendship with them as well.
44 M, early in his evidence, stated that a couple of weeks after the first incident he went back to the farm. After having a bath M stood by the fire. The applicant called M over to sit beside him so he could show him something. The applicant put his arms around M, cuddled him, touched him and slid his hands down the front of his pants and fondled M's penis to the point of ejaculation. M found the Penthouse magazines which the applicant had provided very arousing. There was no charge in respect of this evidence.
45 M estimated that the next incident, the third incident, occurred within about two months of the first incident. He was at the farm. After a bath M was standing beside the fire. The applicant called him over and then slid his arms down M's pants and fondled M's penis. When he tried to push the applicant away he held M tighter and put his mouth on M's penis. The oral sex constituted the second count.
46 M said that at this stage he would go to the farm on average about three weekends a month. There were weekends when M was not at the farm.
47 M stated that in 1982 or 1983 when he was 12 or 13 MG and A10, who were respectively one and two years older than him were usually at the farm. There was an incident involving M, MG, A10 and the applicant. They were watching a pornographic film. The boys became excited. The other two boys masturbated themselves. The applicant masturbated M and himself. There was no charge in respect of this incident.
48 M said that there was another incident when he was about 14. M and the applicant were watching a pornographic film. The applicant fondled and masturbated M. Next the applicant grabbed M's hand and put it on the applicant's penis and held it there and tried to make M masturbate the applicant. The applicant was quite forceful about it. The applicant put his mouth over M's penis and sucked and slid on it. This is the third count. M said that the incident happened before he moved to Sydney. Thus the applicant could not have been 14. He was probably 13.
49 M said that prior to moving to Sydney and when he was about 14 o 14.5 years the applicant flew M to Sydney from Kempsey. He had never been in a plane before and was very excited. He stayed in Sydney over a long weekend. The applicant met M and took him to a house at Whale Beach. They viewed a video called "Electric Blue". The applicant slid his hands down the front of M' pants, fondled his penis, then pulled his pants down and placed his (the applicant's) mouth over M's penis. At the same time the applicant forcefully put M's hand onto the applicant's penis. Both of them ejaculated. M said that the same sexual acts occurred over the entire weekend. M estimated that this incident happened about six months before his family moved to Sydney. He said that he was late 14. This incident was the subject of count 4.
50 M said that there was a further incident at the farm before he moved to Sydney. M and the applicant were sitting on the lounge. The applicant fondled and masturbated M. The applicant rolled M over and forcefully positioned him on his hands and knees and tried to penetrate M's anus with his penis. M said that he tried to push the applicant away but the applicant poked his penis around the anal area of M. This was the subject of count 5. On this count the applicant was found not guilty.
51 In his remarks upon sentence the judge stated that there was an evidentiary basis for the jury to come to the conclusion that they had a reasonable doubt whether the offence alleged had been committed within the range of dates pleaded (26 October 1983 to 30 April 1984). M had estimated it took place about six months after the incident the subject of count 4 (the Whale Beach long weekend). The applicant was overseas from 2 March 1984 to 3 April 1984 and M was in Sydney from at least 2 April 1984 and possibly from late March 1984. The dates were of some importance because they were part of the particulars supplied and also because of the frequent amendments to the Crimes Act recasting the provisions dealing with sexual offences. Of course, this does not mean that the offence was not committed at some time.
52 The records of Kempsey High School show that M left that school on 8 or 9 March 1984. He was in Year 8.
53 The records of Belmore High School show that M enrolled at that High School on 2 April 1984 from Kempsey High School and transferred to Maroubra Bay High School on 6 July 1984. He enrolled at that school on 9 July 1984. The evidence established that on moving to Sydney M's family lived at Belmore and, after a few months, moved to Maroubra Road, Maroubra. M left Maroubra Boys High School on 12 December 1985 and returned to Kempsey High School at the start of the school year in 1986.
54 As a result of M becoming acquainted with the terms of the school records, which he accepted, he corrected his earlier evidence and said that he was not 14, 14½ years old when the applicant flew him to Sydney, but 13, 13½. M also corrected his earlier evidence as to his age when the applicant at the farm rolled him over on his hands and knees and poked his penis in M's anal area. He said that he would have been "13, late 13, turning 14". These corrections took place at the end of the applicant's evidence in chief.
55 M was aged 27 when he gave his evidence in mid October 1998. He was speaking of events that happened over 14 years previously. Further, about two months after M moved to Maroubra the applicant located him and further incidents allegedly occurred.
56 The applicant complained that between the time when the charges were preferred and 22 September 1998 there were these changes in the dates:
Count Original Date s Dates Alleged on 22/9/98
1. 26.10.82 to 1.1.83 26.10.81 to 1.1.83
2. 26.10.83 to 26.10.84 26.10.83 to 25.10.84
3. 8.6.84 to 1.12.84 26.10.83 to 30.4.84
4. 8.6.84 to 1.12.84 26.10.83 to 30.4.84
5. 8.6.84 to 1.12.84 26.10.83 to 30.4.84
57 The Court is not concerned with counts 1 and 5 in view of the verdicts of not guilty except to the extent that they bear upon M's credibility. With the lapse of time and the many alleged incidents which had a broad similarity it is to be expected that there would be some difficulty with dates. While various interlocutory applications were heard from 22 September 1998 the parties were not in court every day. The trial before the jury did not start until 12 October 1998. The applicant cannot make any valid complaint about the amendments. He was entitled to rely upon them as reflecting upon M's credibility. The jury may not have regarded the amendments as doing so. It is a pity that M was not shown the school records at an earlier point of time as they helped in setting the time frame not only for M but also for the Crown. It was a matter for the jury whether they attached importance to the Crown thinking that M had moved from Stuart's Point to Sydney in December 1984. I would not regard that matter as being of consequence.
58 In his directions to the jury (SU 26 of 20/11/98) the judge adopted the approach of the Crown as to dates, namely, that if they were satisfied beyond reasonable doubt that the offence alleged in the charge was committed within the range of dates alleged that sufficed as the Crown did not have to prove that the offence was committed on any particular day. The jury were further told that as to all charges except counts 24 to 29 the Crown had to prove that the complainant was under 16 at the time of the events the subject of the count. As to counts 24 to 29 the Crown had to prove that the complainant was under 14. This approach was required because of the provisions of the Crimes Act 1900.
59 This Court has to focus on the events the subject of count 2 being allegedly committed between 26 October 1983 and 20 October 1984 and those the subject of counts 3 and 4 being allegedly committed between 26 October 1983 and 30 April 1984. In view of the applicant's absence overseas and M's move to Sydney, that reduces the time period to 26 October 1983-1 March 1984.
60 The applicant contended that the incident the subject of counts 2, 3 and 4 could not be fitted into the period 26 October 1983-1 March 1984. He relied on the following matters:
(a) M described brown carpets in the games cottage when he started going to the farm but they were not laid until July 1984.
(M visited the farm after April 1984. The jury may well have thought, as I do, that after so many years a mistake about the brown carpets did not matter)
(b) SG denied that there was a mutual masturbation session involving M and the applicant and MG and SG (T1339: 27-33 and T1374: 1-20).
(This was not the subject of any count due, no doubt to the differences in recollection)
(c) M's mother had no recollection of her son having flown to Sydney for a long weekend with the applicant before they moved to live in Sydney (T578: 15-21).
(However, she did say that when they arrived he seemed familiar with parts of Sydney)
(e) Mr AH and Mrs SAH renting the farm from September 1981 to September 1983.
(d) The applicant's evidence that he first met M in late 1983 or early 1984.
(It does seem that the applicant was able to use parts of that farm during that period.)
(f) The first visits of A10 to the farm were about late 1983 and he met A7 and B36 there.
61 The applicant submitted that when regard was had to the sequence of events given by M and especially the estimated periods between those events and the applicant's sustained involvement with A7 and others apart from M during the school holidays, the incidents alleged by M could not have taken place in the four months from late October 1983 to early March 1984, M said that the events took place before he moved to Sydney with his mother to live. The jury must have accepted this and regarded M's estimate of the intervals between events as mistakes of no consequence. That view was reasonably open.
62 In his evidence the applicant agreed that he met M at Grassy Head and that he gave M a lift home with his surfboard. The applicant said that his first meeting with M occurred just after Mrs SAH had left the farm. That was in September 1983.
63 The applicant confirmed that M's recollection of their first meeting at Grassy Head was correct and that during the summer of 1983/1984 on a number of occasions he gave M a lift back to Stuart's Point. The applicant denied that he had a farm ski boat in 1983 and that M enjoyed water skiing activity at that time. He denied that he had ever made arrangements for M to fly from Kempsey to Sydney and certainly not prior to when he moved house in 1984.
64 The applicant denied that he had ever had a sexual relationship with M but conceded that he had a sexual relationship with other boys. The applicant said that he did have some pornographic material at some of his premises. He did not regard Penthouse magazine as pornographic. There were videos and Penthouse magazines at the farm, The video material he had was heterosexual because he found it more amusing. He had similar material at his Darling Point and Manly flats. He did buy KY gel and used it as a masturbation lubricant on himself and some four other youths. The applicant said that in respect of three of these youths there was mutual oral sex but he denied any anal sex or any anal penetration. He said "I don't like it". He said there was never a place called "Nightmare alley" as alleged by M, although he knew the area M was referring to: The phrase was used by M in some notes for the story M planned to sell to the media.
65 The applicant insisted that he was a hebophile not a paedophile. He dealt with what he said to Elizabeth Deegan, a journalist, in 1996. He had told her that hebophilic love is the reciprocal love of a man for a youth and that he, as a hebophile had loved and been loved by youths and more than one youth over many years.
66 When he had told Ms Deegan that he was not a paedophile in Europe but was in Australia he had been referring to the age of consent for homosexual activities in Switzerland being 16, whereas it was 18 in New South Wales. He said that when he told her "his weekends were spent preparing meals, sharing surfing adventures and the occasional late night dalliance with boys" he meant occasional late night dalliance with youths. By the word "boys" he had meant males over the age of 18. He did not mean children or anyone under 16.
67 The applicant stated that when M was with him in Europe (many years later) M had said that he could make $100,000 to $180,000 for the sale of a filthy story to 60 Minutes about the applicant. M said it would be easy to invent the sexual side of their relationship. There was great mirth about the prospect of the media paying $180,000 for a load of "rubbish filth".
68 The applicant said that the term "use by date" which was employed did not refer to his having used the boys to that point and discarded them but to the boys having decided that they had no further use for him or for "his wheels". It often referred to the point when a young man got his first driver's licence when he did not need the applicant to drive him to the beach and other places.
69 The applicant agreed that he also used the phrase "No. 1 boy" but denied that this had any sexual connotation. It did not refer to the most sexually compliant boy. It applied simply to someone who had done something particularly good and who would hence become "a No 1 boy". M was not "No. 1 boy" until he was 20.
70 The applicant denied that he had ever given to M any furniture from the house at Tweed Heads. M had taken it.
71 The applicant said that he was not afraid of any projected media coverage because he had had a gay sexual relationship with M. He agreed that he had put $4000 or $5000 into M's bank account. He said that he wanted to convince M not to go to the media.
72 I return to the evidence of A7 before the Royal Commission and the transcript of his record of interview with the police. A7's evidence and statements could be summarised thus:
(a) He met the applicant during his summer vacation of 1983/84 and during that vacation went out on the applicant's boat on Sydney Harbour in excess of 10 times. He commented "I'd spent all summer with him." On another occasion A7 said that most of the holidays were spent with the applicant. A7 thought that it was mainly weekends. A7 said that he went on the boat with A6 and B36.
(b) At Easter 1984 he went to the applicant's property at Stuart's Point with the applicant, B36 and A10. There were two other youths at the property aged about 17.
(I interpolate that Easter in 1984 was late. Good Friday was on 20 April 1984 and Easter Monday on 23 April 1984. 25 April 1984 was Anzac Day - There was an extended holiday period).
(c) He had a number of sexual encounters with the applicant in this period.
73 The evidence of A7 does not suggest that he spent every day in the applicant's company during the school vacation. Ten to twelve trips on the applicant's boat over a six to eight week period in about December-January indicates that while there was frequent contact that is as far as it goes. Further, the statement that he thought contact was mainly at weekends is also limiting. The evidence of A7 does not preclude extensive contact between M and the applicant over the period October 1983-early March 1984. Similarly while the potential evidence of B36 corroborates the evidence of A7 as to spending time with the applicant it does not preclude extensive contact between M and the applicant.
74 The applicant emphasised the conflicting evidence given by M as to when various events occurred. However, it was eventually made clear that the events the subject of counts 1 to 5 occurred prior to M moving to Sydney with his family in late March/early April 1984. He had turned 13 on 26 October 1983. There was confusion and mistakes as to dates and times in sections of his evidence but by the end of his evidence the time sequence and approximate periods when events happened could be determined. As to the counts on which the applicant was convicted the jury may not have attached much importance to discrepancies and mistakes in M's evidence, the events alleged having happened 14 years previously. These were matters for the jury to evaluate. They had to be satisfied that the events alleged happened within the time frames specified in the counts but not on particular days or weekends or in particular weeks.
75 The applicant contends that the judge erred in not discharging the jury after M corrected some of his earlier evidence when his attention was drawn to the school records. It was correct for the Crown to draw M's attention to the records. Counsel for the applicant protested claiming that he had been deprived of a potent line of cross-examination. He had been going to question M along the lines of why was he flying from Kempsey to Sydney when he lived in Sydney. Counsel sought the discharge of the jury. The object of a trial is to obtain evidence which is correct. It is not to maximise the impact of cross-examination. Apparent mistakes should be corrected at the earliest opportunity. The judge correctly rejected the application to discharge the jury.
76 The applicant submitted that he had been convicted on the uncorroborated evidence of M and in instances where other evidence either conflicted with M's evidence or did not support it. The applicant gave three illustrations. M described many people at the farm whom the applicant made disappear while he molested M. No such person gave evidence. This is not surprising after many years. There would normally be nothing memorable about being assigned to other activities. A10 denied that there was a mutual masturbation in which he and his brother were involved as alleged by M. However, there was evidence of masturbation sessions. The Royal Commission report refers to A10 telling the police of masturbation sessions involving the applicant, A10 and two other boys. Of course, this was not in evidence before the jury but there was evidence at the trial to the same effect. It was open to the jury to accept M's evidence. The applicant also relied on M's mother having no recollection of her son having flown to Sydney for a long weekend with the applicant before she and M moved to Sydney. However, she added "I just had a feeling that he had been to Sydney with Philip because for a young boy, that when we did move down to Sydney [M] seemed to know exactly where he was." The applicant's points do not render the verdicts open to a successful challenge.
77 There was evidence supporting that of M. For example, the evidence of SA as to the applicant seeking out M at Maroubra Beach in about 1984, his treatment of the group to which M belonged in taking them on outings and giving them gifts, his cuddling M and displays of affection towards M, and the day at Whale Beach, in which he made M sleep in his bed that evening, M's reactions and upset state the following morning and the applicant's effeminate conduct towards M. SA said that the applicant introduced himself as M's "Uncle Phil". There was also the evidence of A10 as to masturbation sessions at the farm involving the applicant, M, A7 and B36 and one incident at the applicant's Darling Point unit. This was in relation to count 12.
78 Issue 2 - Judge's error
The applicant submitted that the judge was mistaken in supporting the Crown's contention that the evidence of Mrs SAH was inaccurate. The judge did not support that contention but rather he summarised it. The Crown did not contend that the whole of her evidence was inaccurate. The Crown accepted that she lived at the applicant's farm from September 1981 to September 1983 subject to certain periods when she was away, including from mid-December 1981 to about mid-January 1982 and from mid-December 1982 to about mid-January 1983 and the Easter period in 1983. She said that the applicant and she and her family had the use of the farm and that the applicant would ring and indicate when he wished to go there. She said that in late 1983 she and her family moved to an adjoining farm. In cross-examination she said that in 1981 and 1982 the applicant did not come to the farm except during the Christmas break. She said that she did not see him from mid-January 1983 to Easter in April 1983. She did not see a group of young people living at the farm during this period at weekends except for two named people who came up to the farm and stayed close to Easter. Mrs SAH stated that between Easter 1983 and September 1983 she did not see a group of young people coming to the farm on an almost weekly basis.
79 In cross-examination by the Crown she agreed that in her statement to the police she had said "During the times I lived at the farm or at the house I met several young boys who came to the farm with Philip or visited him. Usually this happened as a result of the boys riding motorcycles down our driveway and Norris' farm driveway which allowed a short cut to Philip's farm property." She agreed that she had named some of the boys in that statement. One was S and another one was M.
80 When asked if it was true that during the time that she had lived at the farm she met several young boys who came to the farm with Philip, she replied, "No it is not true when I lived at the farm. When I lived in the neighbouring farm." Ultimately, she said that she had made a mistake in her statement. The Crown contended that the evidence of Mrs SAH was inaccurate where it was inconsistent with her statement and the evidence of M's mother and that of A10. There is no substance in this complaint of error on the part of the judge.
81 Issue 3 reads:
"Appellant claims that M perjured himself on counts 1 to 5 and therefore cannot be believed in relation to counts 6 to 13."
In support of this contention the applicant relied on a variety of points which are briefly discussed.
82 Lack of Corroboration Generally
The applicant submitted that the Crown offered no convincing corroboration for any of M's testimony, either before he moved to Sydney (counts 1 to 5) or after (counts 6 to 13). There was supporting evidence and it was outlined by the judge to the jury. In any event, supporting evidence is not necessary. The applicant pointed out that SA gave evidence about an event concerning M of which M gave no evidence. Having regard to the multitude of occasions on which there was sexual activity foisted on M by the applicant according to M's evidence this is not surprising. The applicant suggests that the judge made no mention of SA's evidence in his summing-up. He did (SU 20.11.98 at 66-68) and he specifically referred to SA's evidence of the incident at Whale Beach at SU20.11.98 at 66-67.
83 Count 6
This related to an incident of homosexual intercourse at the applicant's Whale Beach house during the period that M lived at Maroubra. M did not mention anyone else staying overnight. It is correct that there was no direct corroboration of M's evidence.
84 Count 7 alleged another incident of homosexual intercourse at Whale Beach. There was no direct corroboration. M said that he spent the night at the applicant's Whale Beach house alone with him. In the indictment it was alleged that the incident occurred between 1 January 1985 and 25 October 1986. The applicant contended that the only time the incident could have occurred was prior to 25 May 1985 as the beach house was let from that date for five months and on 20 October 1985 the applicant had a serious motorcycle accident which left him incapacitated until well into 1986. In his final address the Crown Prosecutor put to the jury that the incident happened at Whale Beach in 1985, probably prior to May. In his evidence M stated that he could recall the applicant saying something about a proposal to introduce an "Australia Card". This enabled M to differentiate this incident from other instances of sexual activity with the applicant. He agreed in cross-examination that he did discuss the Australia Card with various friends at Whale Beach, although he could not recall if M was present and when the debate was going on. The applicant recalled that while M lived at Maroubra he (Bell) picked M up and took him to Whale Beach.
85 At the hearing of the appeal evidence was admitted, without objection, that the "Australia Card" issue was in the public domain since early 1985. As the Crown pointed out there would have been little to achieve by the Crown producing evidence at the trial as to the period in which this debate was topical. It continued over several years and did nothing, in the context of the evidence in this case to pinpoint when the event in count 7 occurred. The applicant mistakenly suggested that the debate occurred only in 1987.
86 Count 8 alleged that the applicant had homosexual intercourse with M at his Darling Point unit. It was a weekend and Michael Mahoney and his girl friend, Eve, were staying in the unit in another room. The applicant took M to the room in which Mahoney and his girl friend were staying and M saw the semi-naked form of Eve in bed with Mahoney. M found this very arousing. The applicant took M to his bedroom, placed his hands down M's shorts and masturbated M, then removed M's shorts and performed fellatio on M. The applicant then grabbed M's hand and placed it on his [Bell's] penis and made M masturbate him while he fellated M. Mahoney died many years prior to the trial.
87 The applicant pointed out that the Crown did not call Eve to corroborate whether she had stayed overnight at his unit at a time when M was there and called no corroborative evidence to support count 8. The applicant gave evidence that Eve was at his Darling Point unit on at least one occasion when M was also there and that, although he could not recall, he could not deny that M stayed overnight whilst she also stayed overnight. It is not to be supposed that Eve knew what the applicant was doing with M. She would probably have been preoccupied with Mahoney.
88 Counts 9, 10 and 11
(a) The applicant was acquitted of count 9 but convicted of counts 10 and 11. All three counts alleged homosexual intercourse by the applicant with M between 1 January 1985 and 1 January 1986 at the applicant's farm. As to count 9 M said that the applicant requested him to use the bed on an enclosed verandah opposite the applicant' bedroom. M did so as he was feeling a little drunk and very tired. While M was in the bed the applicant came to it and according to M carried out a series of sexual acts constituting homosexual intercourse. M said that he and SB called the verandah area in which the bed was situated "nightmare alley".
(b) As to count 10, M said that the applicant and he were at the farm when the applicant's brother Geoffrey Bell, and his three children visited. They did not stay overnight. M said that the applicant asked him to sleep in the area he called nightmare alley and he did so. The applicant came to the bed in which M was sleeping, laid down beside M and carried out acts of homosexual intercourse including anal intercourse and felatio.
(c) As to count 11 M said that he was at the farm. The adult, Stephen Little was there. M said that during dinner both the applicant and Little treated him like a pet and like a toy, which he did not like. M went across to the games cottage and played pool that night on his own. About an hour later the applicant came across to the games cottage, dragged M into the side room and proceeded to have anal intercourse with him. The applicant did not use any KY gel so it hurt M. M said he screamed, cried and tried to push the applicant off. The applicant was drunk and just pushed himself on to M, M said that he remembered the night "really well because I kept sneaking inside the cottage to get back at him to what he did to me. I kept turning the music up full bore." The music was in the main cottage. M said that the applicant became very angry and screamed and shouted at him. He said the applicant hopped in his car and shone the lights of the car around the property trying to find M, that the applicant swore at him and threatened to run him down. M said that he was terrified and hid under the tank.
(d) The incident the subject of count 10 was recalled because it happened on the day of the visit of Geoffrey Bell and his three children. The incident the subject of count 11, was very memorable and one likely never to be forgotten.
(e) A reading of M's evidence tends to suggest that the incidents happened on different weekends. M said that about every month during 1985 there was an incident in which the applicant subjected him to sexual misbehaviour. There were four day weekends.
(f) While A10 and SB said they were not aware of the term "nightmare alley", DC gave evidence of the use of the term to refer to the verandah at the farm and of SB and another boy CG using it. The applicant's contention that the term was invented by M as part of a story he was planning to sell to 60 Minutes television programme was not supported by the evidence.
(g) The applicant submitted that the Crown offered no explanation as to how M managed to be at the farm so often in 1985 while living in Sydney. Whether these alleged events occurred on different visits to the farm is not completely clear but that does seem to be the evidence of M. It is possible that two or more of these events occurred during an extended visit. M's mother recalled one occasion in which the applicant and M travelled from Sydney to Stuart's Point and her son stayed there for a week. In cross-examination she said that that was the one occasion which stood out in her mind. She could not remember any other occasion. That does not mean that there was only one occasion.
(h) The applicant said in his evidence that M only visited the farm once in 1985. The applicant confirmed M's evidence as to count 9 about there being an occasion in 1985 when the late Graham Johnson came to the farm. The applicant also confirmed that there was an occasion in 1985 when his brother and his children came to the farm (count 10) and that there were occasions in 1985 when Stephen Little was staying at the farm. As the Crown pointed out it is difficult to envisage M having any recollection of such people coming to the farm in 1985 unless he was present.
89 Count 12
(a) Shortly after Michael Mahoney's death M was at the applicant's Darling Point unit with A10. The applicant handed out items of the deceased's clothing to them. M said that at one point the applicant sent A10 down the street. M detailed acts by the applicant on him amounting to homosexual intercourse. The applicant submitted that A10 gave a different version.
(b) A10 said that on the day in question he went out "once for sure, maybe twice". He went out with M, two girls and another male. They went shopping and bought a number of items. A10 said that if he did go out another time it was probably to a shop "just around the corner from Darling Point."
(c) The applicant pointed out that M did not mention going shopping with A10 nor the others present on that day. The focus of M's evidence was different. It was directed to the conduct of the applicant. That was what he was being asked about.
(d) The applicant confirmed that there was an occasion on which the late Mr Mahoney's clothing was distributed. It is doubtful whether the evidence of M and A10 are inconsistent. There is a divergence as to the details each recalls but they are not matters of consequence, if there was a second occasion on which A10 left the applicant's unit. Further, the jury must have thought that M's recollection of the applicant subjecting him to homosexual intercourse on that day was correct.
Count 13
(a) M alleged that the last occasion of sexual abuse by the applicant was around six months after the death of Michael Mahoney. M said that the applicant took him to a surf shop and purchased a wet suit for him. They returned to the applicant's Whale Beach house where the applicant performed homosexual acts on M. In cross-examination M was asked to give an estimate of the number of times the applicant had abused him in the six month period after 31 December 1985 and M gave the estimate of around twenty times. His estimate was that about 50 per cent of these instances were at Whale Beach. That would be about eight occasions. This was an approximate figure, being based on an approximate initial estimate.
(b) The applicant pointed out that in 1986 M was living at Stuart's Point and regularly attending Kempsey High School. M could not recall how many times he flew to Sydney. The applicant contended that this was inconsistent with and renders unbelievable M's assertion that he was sexually abused many times at Whale Beach in 1986 including count 13. Count 13 related to a specific incident. The type of cross-examination engaged in was unlikely to impress a judge or a jury; it was not useful. It involved setting up an "Aunt Sally" away from the real issue and then endeavouring to demolish the "Aunt Sally". It does not follow that because the complainant estimated eight episodes of sexual abuse there must have been the same number of trips to Sydney.
(c) The applicant complained that the Crown had produced no air tickets or reservations or other evidence to corroborate M's evidence that he frequently flew from Kempsey to Sydney in 1986. These would probably not exist in 1998. The High School records are unlikely to show M's flights or trips to Sydney. In the first half of 1986 school holidays would take up most of January. In addition there would be the Easter period with associated school holidays, the Anzac weekend, the Queen's Birthday weekend and other weekends.
M's Motives for Perjury
(a) The applicant submitted that M was motivated to fabricate evidence against the applicant in the hope of making money from selling his story to the media and of obtaining compensation from the Victims Compensation Tribunal.
(b) In cross-examination M said that he contacted Mr Peter Wilkinson of the Channel 9 show, 60 Minutes, in about November 1994 about selling his story about the applicant. Figures of the order of $180,000 to $250,000 were discussed. This was prior to his record of interview with the police in April 1996. M said that he decided not to proceed with his venture with the 60 Minutes programme after leaving Saanen in Europe to come back to Australia. He returned to Australia in late November 1994. M agreed that he approached the Channel 7 network to sell his story. He spoke to a researcher attached to the Jana Wendt Witness Show but there was no discussion at that stage about money or the price of M's story. This was in about April 1996.
90 M said that after some initial conversations with the researcher, Channel 7 flew him and his girl friend to Sydney where he held discussions with the researcher and another employee of Channel 7. M said that they had many talks about the story and how things were to be done. He wanted the camera to have the angle of what happens from a child's point of view. He agreed that he told the researcher that he had a story to sell regarding the applicant and that he had entered into negotiations to sell his story to 60 Minutes. He denied that he told her that he was interested in a figure of $100,000 or more. He said that he did not indicate any amount of money. He said that he was told by Channel 7 that the network had a policy of not paying for stories.
91 M agreed that he went with the woman researcher to a storage facility outside Brisbane and showed her various articles and things which he claimed belonged to the applicant.
92 At the conclusion of M's cross-examination the Crown Prosecutor stated that the Crown wished to place on record the contents of some notes made by his instructing solicitor during the course of a conference with M:
"Re 60 Minutes. Deal struck for five hundred K. I still got 5K. We have another deal. When it's all finished I will be paid some money. Not nearly as much as before."
93 M denied that he had made remarks to this effect. M said that the only money that had been paid was $4970 by the applicant. He had not been paid $5000 by any media entity and, in his discussions with Channel 9 the figure of $500,000 was never mentioned. M said that he had resolved not to sell his story.
94 Ms Youdale, the woman researcher at Channel 7, said that she had first met the applicant in 1977 at his Whale Beach residence. She was aged 13. She became a friend of the applicant. In 1988 she became a journalist and in the 1990's she obtained a job working with the Witness programme (Channel 7). She received a telephone call from M and thereafter had numerous telephone conversations with M. She was also in contact with the applicant, both overseas and later in Australia.
95 In cross-examination Ms Youdale said that when M telephoned he said that he had a story we might be interested in, that he had testified at the Wood Royal Commission and he had a story to sell. He said that he was having negotiations with 60 Minutes (Channel 9), they had not really committed to the story, they had not started filming and they had not decided a fee for his story. He was interested in what sort of fee he could get if Channel 7 committed to doing a story with him. He questioned whether Channel 7 would be able to pay him two amounts, $100,000 and $170,000.
96 She arranged for M and his girl friend to be flown to Sydney. She and a producer from Channel 7 met M. The issue of money was further discussed. She said that M said that he had stolen items from the applicant's safe and a desk. There were other items. During the interview M mentioned that A10 had received $25,000 from Current Affair (Channel 9) and $25,000 from the Victims Compensation Tribunal. M said he had been planning to contact the media with a story about the applicant for about a year and collecting items which might be useful. She went to Brisbane to view the items. She said that M never had a contract with the Witness programme. He was paid a small sum ($500 or less) for the time he had spent with Channel 7. M never suggested to her that he had a contract with the 60 Minutes programme or that he had been paid any money by it.
97 Mr Peter Wilkinson said that he was a journalist "currently producing with 60 Minutes" and was acting in a similar capacity when he spoke with M. Mr Wilkinson said that M stated that he first met the applicant when M was aged eight and that the applicant's molestation first started about six months later. Mr Wilkinson said that M stated that he first met the applicant at Grassy Head Beach, that he (M) had been surfing, that the applicant would give him a lift with his surfboard and that after a period he went to the applicant's farm and also went water skiing with him.
98 On the evidence taken as a whole it is improbable that M met the applicant when he was aged eight and shortly thereafter went water skiing with him. Surfboard riding for a boy aged eight is unusual. There is likely to have been some misunderstanding between M and Mr Wilkinson despite the latter having made written notes. This was a matter for assessment by the jury. They may have thought that even if the applicant incorrectly stated to Mr Wilkinson that he was aged eight when he first met the applicant, this was not a matter of consequence given the issues which they had to determine.
99 M's contact with the media and his desire to be paid for his story about the applicant was covered in much detail at the trial. He was subjected to an extended cross-examination which went over that ground several times. Ms Youdale gave evidence on that point and the Crown's note was read to the jury. By the time of the trial M had received nothing from the media except a paltry sum ($500 or less for his time) and had no prospect of obtaining any money. There was evidence that he had received $4970 and, on one view, more from the applicant and the inference was open that the payment and the overseas trip for M, funded by the applicant, were intended to encourage M not to go to the media. There were also the threatening letters (Exhibits 11-13) from the applicant to M in about July and September 1995. The suggestion that even at the date of the trial M may have had a deal with the media depended mainly on the note made by the Crown's instructing solicitor of M's statement. The other evidence was to the contrary and it was more cogent. It was not put to M that because he had tried to make a deal and failed and had been interviewed by the police and given a version of events he was locked into that version. This would not seem to be a powerful argument. On the evidence it would have been obvious to M during 1996 that neither Channel 9 nor Channel 7 intended to pay him substantial sums of money. Channel 9 would not commit itself and Channel 7 had told him that it did not pay for a story such as his.
100 It was open to the jury to take the view that the applicant was very keen to persuade M not to go to the media and that long before the trial M had been given to understand that no money from the media (except a small sum for his time) would be forthcoming. Nevertheless, shortly before the jury retired the judge correctly gave this direction (SU 14-15 of 244/11/98):
"As to the evidence of [M] you may recall that after his evidence was complete, learned counsel for the Crown made this statement in your presence. He told you that prior to entering the witness box, there had been a discussion during the course of a conference with the witness, at which his instructing solicitor was present and that instructing solicitor had made the following note of something which [M] had said and I quote 'Re 60 minutes deal struck for 500K. I still got 5K. We have another deal. When it's all finished, I will be paid some money not nearly as much as before.' That's the part of the note which the Crown read to you.
You will remember of course, that [M] said in evidence that there was no mention of $500,000 which is what of course, 500K represents. He did not get, he said $5,000 but $500. There was no other deal he said. If, having regard to that concession however, made by the Crown, you come to the conclusion that there may have been another deal, in other words, once (sic) which is current at this time and of course, at the time that [M] gave his evidence then I warn you that his evidence may be unreliable. It may be unreliable because of exaggerations which he may have made and indeed more than exaggerations perhaps, for this purpose of enhancing media interest in what he had to say. I warn you also of the need therefore, for caution in determining whether to accept his evidence and the weight that you give to it, in light of that. You may remember that when Mr Wilkinson gave evidence before you, neither counsel, neither counsel for the accused nor for the Crown asked Mr Wilkinson whether there was any current deal with Channel 9."
This was an adequate treatment of the subject.
101 The applicant also relied on M applying for victims compensation in 1996 relating to sexual abuse by the applicant and his application being pending at the trial. M was awarded $50,000 in November 1999. This specific matter was not before the jury. As such applications are commonplace in cases involving sexual offences and expected, inquiries could easily have been made and subpoenas issued. In his re-examination the applicant accused at least one of the boys of putting down his age so he could claim victims compensation (T1805-1806). The Crown objected. The judge commented that any citizen is entitled to make application for victims compensation. The jury were aware of its existence. In any event M's claim was unlikely to have made any significant difference especially in the light of the applicant's threats and payments. Raising victim's compensation can rebound on an accused. The lodging of a claim can be regarded as being consistent with the evidence of the complainant.
102 The applicant relied on a statement by his solicitor, David McIlwraith, on 29 May 2001 of a meeting by arrangement between Mr McIlwraith and SB at Gate Q of the Olympic Stadium on 1 October 2000. Mr McIlwraith said that he and SB talked for twenty minutes across a turnstile and discussed a number of matters. According to Mr McIlwraith, SB said that M had set the applicant up and had not to his knowledge ever had sex with the applicant. Further, SB said M had offered him half of what he would make if SB agreed to give evidence against the applicant. Mr McIlwraith said that SB mentioned other matters about the case and they agreed to meet again. Two meetings were arranged but did not take place, the first meeting being postponed and SB not attending the second planned meeting. Mr McIlwraith said that afterwards he received a telephone call from a Sergeant from Dee Why Police Station that SB was fearful of Mr McIlwraith contacting him and would seek a restraining order if Mr McIlwraith contacted him again. Neither Mr McIlwraith's statement nor what SB said to him amounts to admissible evidence. Nor is it material of value.
103 I do not accept that all verdicts after those on counts 2, 3 and 4 "because of contamination via 'similar fact' evidence" are suspect or unreasonable or not supported by the evidence. Nor do I accept that the allegedly unreliable evidence of M as to counts 1-5 affects all other verdicts.
104 The applicant next submitted that there were additional issues which reinforced and confirmed that the verdicts were unsafe and unsound. By that I take the applicant to mean that they were unreasonable and cannot be supported having regard to the evidence.
105 Issue 4 - BB
BB was born on 4 February 1970. He first met the applicant in about December 1984 at Palm Beach at a bus stop. The applicant offered BB, DD and a friend a lift home in his blue BMW. He asked them a lot of personal questions. They were guarded in their replies, suspecting that the applicant may be a police officer. They insisted that he let them off at a food shop. They walked home from there. The applicant mentioned that he needed someone to clean his boats. A few days later when BB was mowing the lawn at the front of his home the applicant pulled up in his car. He told BB he had been looking for him and asked BB if he could go and clean his boat. BB agreed and gave the applicant his telephone number. By arrangement with the applicant BB went to the Palm Beach Marina. BB and the applicant worked on the boat. They ran out of rags and the applicant suggested they go up to his home at Whale Beach to get some more rags. They did so in the applicant's BMW. The applicant opened the boot, which contained a pornographic movie. He suggested they watch it. He put on the movie in his bedroom, undressed and told BB to do likewise. He did. They were both lying naked on the bed. The applicant masturbated BB until he had an erection and then put his mouth over BB's penis and BB ejaculated. The applicant had some KY Gel and put it on his penis. He then placed BB's hand on his (the applicant's) penis and made BB grab it. This incident was the subject of count 14, homosexual intercourse, of which the applicant was convicted.
106 BB gave evidence of a series of outings on the applicant's boat, going water skiing and driving the boat while the applicant skied. There were other people on the boat from time to time. BB said that he also went to the applicant's house. Most times when he was alone there with the applicant, the latter masturbated him. This continued over one to two years. The applicant also had BB masturbate him. BB said he met other boys at the house and nominated them.
107 He said that on two occasions he was taken by the applicant to his farm at Yarrahapinni. Detailed evidence was given of what happened. On the first visit the applicant masturbated both BB and A10.
108 Evidence was given of a further incident at the Whale Beach house involving the applicant, BB and two other boys. The youths had all been smoking marihuana and drinking alcohol in the applicant's presence. It was alleged that the applicant offered BB and the two other youths money to masturbate themselves in front of him. This was the subject of count 15, incite act of indecency by a male under 16. The applicant was acquitted of this count.
"As to the question of dates, as I have already said, Mr Crown has correctly informed you that provided you are satisfied beyond reasonable doubt that the offence alleged in the charge was committed within the range of dates alleged and that the complainants were then under sixteen in respect of all the charges, except charges 24 through to 29 when in which case the Crown must show that the alleged victim was under fourteen, the Crown does not have to prove that the offence was committed on any particular date."
200 The summing-up contains a useful summary of the evidence and the judge was careful to relate his directions of law to the facts. After having heard the comprehensive summing-up the jury would have been well able to deal with the charges. By that time (if not before) they would have mastered the complexities of the case.
201 The Crown submitted that the fact that the jury were able to properly consider their verdicts on each individual count, notwithstanding that there were then five complainants and thirty-seven counts, with many dates and periods of time relevant to each, was indicated by the verdicts delivered. They returned verdicts of not guilty on nine counts. That indicates that the evidence on those counts gave rise to a reasonable doubt. In his remarks on sentence the judge explained as to each of the counts on which the applicant was acquitted, why the verdict of acquittal was probably entered and that the basis of acquittal was rational. He rejected the suggestion of inconsistency of verdict as to some of the counts on which the applicant was acquitted. The judge stated that there was a doubt whether the offences alleged in the nine counts on which the applicant was acquitted had been committed within the dates specified in the indictment. The judge's reasons explaining the acquittals are convincing.
202 An examination of the trial transcript, the summing-up, the verdicts entered and the judge's remarks on sentence reveals that the jury should have been and was able to handle this multiple trial competently and could and did analyse and understand the detailed evidence including that as to dates. The verdicts returned were those which could reasonably have been expected. The jury gave their verdicts extensive consideration. There is no substance in the contention that the trial was unfair from the outset because separate trials were refused or, I would add, at any stage.
203 Issue 10 - Pre-trial Publicity
The applicant correctly submitted that prior to his trial there was a large amount of publicity in print and on television prejudicial to his case, The judge refused a stay of proceedings and this refusal was upheld on appeal. The applicant acknowledged that the judge sought to cure any prejudicial effect of this publicity by instructing the jury that they must ignore anything they may have heard or read about the applicant and decide the case solely on the evidence presented in court. The applicant submitted that the judge unfairly expected the jury to be able to wipe from their minds the pre-trial publicity and that in the real world it was doubtful (to put the case at its lowest) whether the jurors were capable of cleansing their minds of all they had read or seen pertaining to the applicant's arrest, extradition from South Africa, charging and trial. The applicant further submitted that there was no way to determine whether or to what extent the pre-trial and during trial publicity played on the minds of the jurors and affected their deliberations and verdicts.
204 The applicant submitted that these unknown factors may have combined with the other weaknesses and deficiencies complained of earlier to render the trial unfair, and the appealed verdicts unsafe. In his judgment of 8 October 1998 the judge detailed some of the severely prejudicial material which appeared in the media. For example, on a very well known TV programme, aired at prime time, the commentator described the accused as a "millionaire merchant banker, paedophile, who for twenty years now has preyed on countless young boys". The commentator went on to assert that the applicant had done this with "virtual immunity" because he had established a relationship with a network of corrupt police. There were even more prejudicial statements, some of which were expressed in colourful and attention-catching language. The adverse material extends from 1993 to 1998 with a great deal of it in 1996.
205 The judge accepted that the applicant had been the subject of a barrage of publicity from the media, that this has had potential prejudicial effect in disclosing his prior convictions, his involvement in corrupt activities with dishonest police and admitted or notorious paedophiles and that some of this publicity had been couched in inflammatory and sensational language. The judge nevertheless thought that the public interest in bringing the serious charges to trial must prevail. The judge found that a great deal of the publicity was so remote in time as to mitigate its seriousness as a threat to a fair trial and noted that he was constrained by authority to hold that jurors will abide by directions of law given to them.
206 The Court of Criminal Appeal held that Judge Davidson had applied the relevant principles. Spigelman CJ applied two comments of Gleeson CJ in earlier cases:
"The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character ( R v PH CCA unreported, 4 March 1994).
and
- "Some of the arguments advanced by the appellant are tantamount to saying that, in the events that happened, it was impossible for him to receive a fair trial in front of a jury, and that if he could not have a trial without a jury he should never have been put on trial at all. I would reject this. The criminal justice system, of which trial by jury is an integral part, often has to function in circumstances of intense publicity potentially prejudicial to an accused person. Various mechanisms, including, where necessary, proceedings for contempt of court, are available to protect the integrity of the system. Ultimately, however, it is the capacity of jurors, properly instructed by trial judges, to decide cases by reference to legally admissible evidence and legally relevant arguments, and not otherwise, that is the foundation of the system." (R v Milat , CCA unreported 26 February 1998)
207 It does less than justice to the capacities of jurors to imagine that they accept, or accept uncritically, what appears in the media. When they have actual evidence before them they focus on that.
208 The Crown referred to the remarks of Spigelman CJ:
"This kind of publicity is unquestionably capable of having an impact on persons who constitute juries. However, there are mechanisms by which such impact can be ameliorated."
`
209 Steps were taken to ameliorate the impact of the publicity. Prior to empanelling the jury the judge had the Crown read out the names of the witnesses it intended to call and explained to the jury panel that the accused was Philip Harold Bell. The judge outlined to the jury panel the name of each of the alleged five victims, the dates during which and the places at which the alleged offences were said to have been committed and the nature of the charges. The judge emphasised to all members of the panel that they had to act and only act on the evidence, that is what was given from the witness box and other material placed before the jury in the courtroom. The evidence did not include anything which may have come to their ears or eyes before they were sworn or from any other source including the media. He instructed the jury panel that anything which was not part of the material admitted into evidence in that courtroom which came to their notice was to be excluded entirely from their consideration.
210 The judge directed the jury panel that if any of them had, or thought he or she had some information acquired from any source relating to the accused or the circumstances of these alleged offences, anything relating to the persons named in the charge other than the accused (the complainants) or anything in relation to any of the proposed witnesses which any panel member thought would prevent or hinder him or her from considering the case impartially, dispassionately and based only on the evidence to be led, putting all else aside completely, such member should identify himself or herself now and he would hear an application that such a member be excused. The judge also asked any member of the jury panel, who thought that he or she may not be able to exclude entirely from his or her mind any publicity, to identify himself or herself for the purpose of being excused. One jury panel member identified himself in the manner requested and the judge heard the application and excused that panel member.
211 The judge's instructions were clear, firm and comprehensive. At the end of the first day of the trial (T186) the judge referred to and reiterated the instructions he had given to the panel members prior to their being sworn as jurors. He reminded them of the need to determine the case solely upon the evidence led in the courtroom and to disregard anything acquired from any other source. The judge repeated the substance of his earlier instructions and made it clear that the jurors must put right out of their minds any publicity in the media which came to their notice about the case they were hearing. The judge also asked them to try and avoid any media publicity coming to their attention.
212 On 23 October 1998 (T819) the judge again reminded the jury of their obligation to decide the case solely on the basis of what they heard in the courtroom and not on anything that may come to their eyes or ears outside the court, including anything reported in the media. This came after an inaccurate and prejudicial headline to an article purporting to report the proceedings had appeared in a major daily newspaper.
213 Immediately before the addresses commenced on 17 November 1998 (T1874) the judge reminded the jury of their obligation to reach a verdict solely on what they had heard by way of evidence from the witness box or seen by way of inspection of the various items admitted into evidence. He repeated his cautions given at the start of the trial, not to resort to any place nearby when arriving and leaving the court and to refrain from discussing the case, even on a casual basis, with anybody outside their own number.
214 In summing up the judge said (SU4-5):
"As I have tried to emphasise throughout, your verdict must be based on the evidence which you have heard from the witness box and the documents which have been admitted into evidence as exhibits during the course of the trial. Your verdicts must be based on that material alone and such assistance as you may derive from the submissions of counsel.
…
I simply want at this stage to direct your attention to your duty to look at each of these charges separately with a view to determining your verdict solely on the basis of the evidence admissible in relation to that charge."
215 When the judge made an order allowing the jury to separate over the weekend commencing on 27 November 1998 while they were considering their verdict he said:
" … again, I must emphasise the essential requirement that you do not discuss this case with anybody in the meantime. The community which we are all here to serve is entitled to a verdict from you not on the basis of anything that might come to your ears or your eyes outside this courtroom, but only on the basis of the evidence which has been given in this courtroom and what has been said in this courtroom.
I would ask you to refrain from discussing this case with anybody, apart of course from yourselves when you are and if you are assembled together, and I would also ask you to avoid any media coverage of this case which may appear."
216 The course taken and the instructions given by the judge would have ensured that the jury decided the case solely on the admissible evidence. The applicant's complaint that the verdicts were unsafe because of media publicity fails.
217 Under cover of his letter of 27 June 2001, the applicant made further submissions as to the credibility of the evidence of SB. SB had received victims compensation of $40,000 and $9000 for costs. SB admitted in cross-examination that he had been paid moneys pursuant to his victims compensation application. SB gave evidence that he believed he was 15 when he first met the applicant and the latter began sexually abusing him. SB admitted that he could be mistaken. This was because of the alleged relationship in time to the date when the applicant leased a flat at Manly. The difficulties for the prosecution arising out of this presumably led to the acquittal of the applicant on count 33. SB was a witness, not the complainant. It was for the jury to consider whether this mistake, which was understandable given the lapse of years, affected the reliability of the remainder of the evidence of SB. Count 33 was but one of a substantial number of charged against the applicant arising out of his alleged conduct towards CA. The point was adequately covered at the trial.
218 Verdicts Unreasonable or Cannot be Supported Having Regard to the Evidence
The principles to be applied are set out in M v The Queen (1994) 181 CLR 487 at 493-494 and Jones v The Queen (1997) 191 CLR 439. In Jones the majority of Gaudron, McHugh and Gummow JJ discussed M and at pp 450-1 said:
"In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "
219 That test and approach must be applied in the present case., There is the subsequent decision of Gipp v The Queen (1998) 194 CLR 106 at 114, 123, 150 162, 164 applying M. See also Fleming v The Queen (1998) 197 CLR 250 at 255-256; Giam (1994) 104 A Crim R 426 and R v Smith [2000] NSWCCA 468 at paras 33-36.
220 The Crown correctly submitted that the present case was one in which the jury enjoyed a considerable advantage in assessing the credibility and reliability of the witnesses. They saw each of the complainants and the other witnesses who gave evidence. Many gave evidence over an extended period both in chief and in cross-examination. For example, M spent nearly four days in the witness box, for almost two of which he was under cross-examination in the presence of the jury. The applicant also gave evidence in chief for about three hours and was cross-examined for about five hours. This would have been of considerable assistance in a case where the events happened many years before the trial and the jury had to deal with issues as to whether various events happened and, if so, when. One of the jury's tasks was to decide whether mistakes as to dates and times were adequately explained. Another task was to assess credibility of the complainants, the witnesses and the applicant. Could any weight be placed on his denials? It was also a case in which feelings ran deep and the manner in which evidence was given was important. Passionate and colourful language was used.
221 Although the applicant's evidence on sentence was obviously not before the jury it does provide some interesting insights as to the trial. He said at T87 of 8 February 1999:
…
", … during the course of my trial for the first time in my life, the notion came into my head that there was a potential for harm in the relationship between a man and a youth in a hebophiliac relationship.
I have heard evidence … that shocked and unnerved me in a way that has never happened in my life before.
… I had never seen this concept (of victimhood) until I sat over there and saw young men, some of whom I had had long intimate relationships with, turn on me and look at me with hatred. This was a terrible defining moment in my life. … It happened when [DC] hit the stand. …"
222 After referring to DC having felt secure and loved in the applicant's home for a number of years the applicant continued (T88 of 8 February 1999):
"So, therefore, the shock factor of having him sit where I am now,and my sitting over there, and having him literally shout abuse at me said to me that for the first time in my life - I mean his - what have I done here? Am I responsible for this? What is this? Here is a loving friend whom I thought would be a friend 10, 20 and 30 years down the track, as many of these young men in the hebophile relationships I've had over the years still are. So here was a new, defining experience, and if it is possible that my relationship with a young man, the way that I have loved a young man can - has got the capacity to do damage, then there is no way in the world that I would allow a situation like that to redevelop."
223 The jury would have been able to observe the reactions of the applicant, the complainants and the other witnesses. In his oral submissions the applicant described the trial as one of great emotion and histrionics. The evidence of the applicant before the judge revealed the applicant as a man of mental agility and one who was capable of putting a favourable gloss on all that he did, but it was far from convincing.
224 The judge was careful to demonstrate in his remarks upon sentence that this was not a case in which it could be said that the verdicts were inconsistent. In his oral submissions the applicant agreed that the jury was intelligent and that they had "a sufficient reason for the mix of guilty and not guilty verdicts."
225 The Crown accepted that for the majority of counts in indictment 1 there was no direct corroboration of the complainants' accounts. The Crown correctly submitted that there was a powerful body of evidence which established a rather unique and consistent pattern of conduct by the appellant which substantially lent credence to the versions of the individual complainants (see SU 20 November 1998 at 48-49 and the detailed summary in the Crown Prosecutor's address at T1924-1929).
226 There was other additional evidence which supported the evidence of the complainants. This is summarised by the judge at SU 20 November 1998 at 62, to 23 November 1998 at 19. I have earlier referred to SA's evidence. This is one example.
227 The applicant submitted that there was a common factor which linked six of the seven complainants and similar fact witnesses, namely money. He asserted that before the trial A10 and SB were both paid a large amount of money (victims compensation) for under-age sexual contact with him and that at the time of the trial M, BB, DC and CA had claims for compensation pending. The applicant said that he was not sure about the position of JL. The applicant submitted that if the value of potential media contracts was added there was big money at stake on the trial. There was some evidence of one potential media contract as to M, but a warning was given as to M. The evidence, as a whole, does not support the suggestion that there are financially rewarding media contracts available to the complainants or the witnesses. I do not take into account small amounts paid for expenses, travel or time spent.
228 The applicant asserted that $449,320 by way of victims compensation was riding on the convictions. The Court is not aware how much each alleged victim received, although it does have details as to how much some received. It seems that some of the witnesses had already received their money. It is common for complainants, and witnesses who also claim to be victims in sexual offence cases, to have claims for compensation pending at the date of trial or to be considering making such claims or to have received such compensation. Indeed, they are sometimes cross-examined to the effect that they have not made a claim and that if their version of events was correct they would have done so. The Victims Compensation Tribunal is separate from the Crown. If an accused wishes to raise that matter at the trial the accused can have his counsel cross-examine as to that, or he can issue a subpoena (or its equivalent) to prove that a claim has been made. This is often a two-edged sword.
229 A victim has a legal right to claim victim's compensation and the exercise of that right does not contaminate the evidence of a witness who is a victim. It is different if it is shown that his evidence is driven by a desire to obtain money regardless of the truth. It is not improper for a victim who gives truthful evidence to want to obtain victim's compensation. This was a case in which the police sought out the alleged victims. They did not go to the police. It is apparent on reading the evidence that the complainants and some of the witnesses who alleged that they were victims, felt very deeply about the way the applicant had allegedly used them and committed serious criminal offences on them. Further, there was no credible evidence of the various complainants and other alleged victims having put their heads together to obtain victims compensation. The police interviewed the various young men separately and told them of their right to claim victim's compensation.
230 It was well open to the jury to reach the verdicts which they did. Any other result would have been surprising. The verdicts were reasonable and amply supported by the evidence. This ground of challenge fails.
231 The applicant submitted that even if this Court thought that none of his complaints was in itself sufficient to warrant a new trial, when they were taken together there was a real risk that there had been a miscarriage of justice and that a new trial should be ordered. I disagree. There has been no miscarriage of justice and no risk of a miscarriage. Even if this Court had granted the applicant leave to withdraw his Notice of Abandonment and leave to appeal out of time, the appeal against the conviction would have to be dismissed.
232 Sentence
The applicant also sought to have the sentences imposed upon him, but not yet served, reduced. He told the Court that he did not want to appeal against the sentences which he had served. He advised the Court that he wished to appeal against the sentences on counts 31, 6 and 18. Whether he wishes to pursue appealing against the sentence on count 31 remains to be clarified. The question of an appeal against the sentences was stood over pending the disposition of the appeal against conviction.
233 I propose the following orders:
(a) Leave to withdraw Notice of Abandonment of appeal against convictions refused.
********(b) Leave to appeal against convictions out of time refused.
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