R v WS - [2021] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WS [2021] NSWCCA 124
Hearing dates: 22 March 2021
Date of orders: 21 June 2021
Decision date: 21 June 2021
Before: Hoeben CJ at CL at [1];
Price J at [2];
Ierace J at [410]
Decision:
(1) Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of Ground 1.
(2) Allow the appeal.
(3) Quash the convictions and sentence.
(4) Order that there be a re-trial of the appellant.
(5) Remit the matter for mention at the District Court at Sydney at 9:30am on 2 July 2021.

Catchwords:
CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D(1), 81
Criminal Appeal Rules (NSW), r 4
Criminal Code Act 1899 (QLD), 23(1)(b)
Criminal Procedure Act 1986 (NSW), s 293
Evidence Act 1995 (NSW), s 97

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
DC v R [2019] NSWCCA 234
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
IW v R [2019] NSWCCA 311
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
Pillay v R (2014) 43 VR 327; [2014] VSCA 249
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Dal [2005] QCA 281
Roos v R [2019] NSWCCA 67
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Texts Cited:
Nil

Category: Principal judgment
Parties: WS (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Game SC (Appellant)
A Cook (Appellant)
G Newton (Respondent)
Solicitors:
APJ Law (Appellant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/280784; 2014/361895; 2015/165571
Publication restriction:
Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons referred to in this judgment by the letters PW, JW, SF, ST, JC, OW, CW, and MR.
The following further orders were made:
1 Orders that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 hereafter referred to as the CSNPO Act on the grounds specified in s 81A of the CSNPO Act there be no publication of information tending to reveal the identity of C in connection with the proceedings to which have been referred.
2 Orders that order 1 shall apply throughout the Commonwealth of Australia.
3 The Court orders that order 1 shall apply until the conclusion of any criminal proceedings brought against C as a result of police investigation.
4 Order that New South Wales Commissioner of Police will be given three days’ notice of any application to review these orders. The Court notes:
(1) The confidential affidavit of XXX sworn on 19 March 2021 is returned to the Crown Solicitor’s Office; and
(2) The Crown Solicitor give an undertaking to make that affidavit available to this Court or any other court having jurisdiction.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 October 2017

Before:

Syme DCJ

File Number(s):

2014/280784; 2014/361895; 2015/165571

Judgment

HOEBEN CJ at CL: I agree with the judgment of Price J and the orders which he proposes.
PRICE J: On 14 August 2017, WS (the appellant) was arraigned before her Honour Syme DCJ (the trial judge) and a jury of twelve in the District Court at Sydney on an indictment that contained 26 counts.
Counts 1 to 4 alleged that the appellant had assaulted PW (a male person) at Armidale between 1 January 1981 and 31 December 1982 and had committed an act of indecency on him contrary to s 81 of the Crimes Act 1900 (NSW).
Counts 5, 6 and 8 were in the same terms as counts 1 to 4 but the date of the offences was between 1 October 1982 and 1 March 1984.
Count 7 alleged that the appellant between 1 October 1982 and 1 March 1984 at Armidale had sexual intercourse with PW without his consent knowing he was not consenting contrary to s 61D(1) of the Crimes Act. Count 8 was charged in the alternative to count 7.
Counts 9, 10, 11, 12, 19, and 20 alleged that the appellant had assaulted JW (a male person) at Armidale between 1 January 1981 and 30 April 1983 and had committed an act of indecency on him contrary to s 81 of the Crimes Act.
Counts 14 and 17 were in the same terms as the other counts brought contrary to s 81 of the Crimes Act but the date of the offences was between 14 July 1981 and 30 April 1983. Counts 15 and 18 were also in the same terms as the other counts brought contrary to s 81 of the Crimes Act but the date of these offences was between 1 January 1981 and 13 July 1981.
Count 13 alleged that the appellant between 14 July 1981 and 30 April 1983 at Armidale had sexual intercourse with JW without his consent knowing that he was not consenting contrary to s 61D(1) of the Crimes Act. Count 14 was charged in the alternative to count 13 as was count 15.
Count 21 alleged that the appellant between 14 July 1981 and 30 April 1983 at Armidale did have sexual intercourse with JW without his consent knowing that he was not consenting contrary to s 61D(1) of the Crimes Act.
Counts 22 and 23 which were charges contrary to s 81 of the Crimes Act were charged in the alternative to count 21. The date of the offence in count 22 was between 14 July 1981 and 30 April 1983 whereas the date of the offence in count 23 was between 1 January 1981 and 13 July 1981.
Counts 24 and 25 alleged that the appellant had assaulted SF (a male person) at Armidale between 1 January 1982 and 31 December 1982 and committed an act of indecency on him contrary to s 81 of the Crimes Act.
Count 26 alleged that the appellant had assaulted ST (a male person) at Armidale between 1 June 1981 and 31 December 1981 and committed an act of indecency on him contrary to s 81 of the Crimes Act.
The appellant pleaded not guilty to all of the counts and the trial commenced on the same day.
As will be seen from the indictment, counts 1 to 8 related to the complainant PW; counts 9 to 23 to the complainant JW; counts 24 and 25 to the complainant SF; and count 26 to the complainant ST.
The jury retired to consider its verdicts on 3 October 2017. On 16 October 2017, the jury returned unanimous verdicts of guilt on counts 24, 25 and 26, being the charges relating to SF and ST. On 19 October 2017, the jury delivered the following majority verdicts on the counts relating to JW:

Guilty on counts 9-12;

Not guilty on count 13 (principal count) and count 14 (first alternative count to count 13), but guilty on count 15 (second alternative count to count 13);

Not guilty on count 16 (principal count) and count 17 (first alternative count to count 16) but guilty on count 18 (second alternative count to count 16);

Guilty on counts 19 and 20;

Guilty on count 21.

On 23 October 2017, the jury returned majority verdicts of guilty on counts 1 to 5 which related to PW. As the jury was unable to reach a unanimous or majority verdict on counts 6 to 8, the jury was discharged on these counts.
The appellant was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 8 years.

The Grounds of Appeal

The notice of appeal identifies the following grounds:

Ground 1
i. The trial miscarried because of:
a. The use made by the prosecutor of out of court statements made by the appellant to the complainant PW in 2014; and
b. The directions (or absence of adequate directions) given by the trial judge on the subject.
Ground 2
ii. The verdicts are unreasonable, or cannot be supported, having regard to the evidence.

A summary of the Crown case against the appellant

The appellant worked as a dentist in Armidale New South Wales during the 1980s. He also practised in two other country towns during this time. He had undertaken some hypnotherapy courses and was a member of the Australian Society of Hypnosis. He used some hypnotherapy techniques as part of his dentistry practice to assist people with fear. He also assisted people more generally with ‘pure’ hypnotherapy/relaxation sessions.
The Crown case was that the appellant had used these hypnotherapy techniques on teenage and pre-teenage boys during both dentistry sessions and pure hypnotherapy sessions and had taken advantage of these sessions to touch boys inappropriately.
For the sake of caution, in addition to the names of the complainants, the tendency witnesses, the parents and siblings of these witnesses, I have anonymised the names of the witnesses who gave evidence of complaints made to them by the complainants about the conduct of the appellant.
The paragraphs that follow set out in summary form evidence adduced in the trial. As the evidence in the trial was given over seven weeks, I have not summarised all of the evidence but have considered all of the evidence in determining the grounds of appeal.

A summary of PW’s evidence

PW gave evidence that he was born in 1966 and grew up with his parents and younger brother JW in Armidale. He commenced in Year 7 in 1979 at a … Catholic High School. Shortly after commencing, he was referred to the school counsellor ‘C’ after misbehaving in class. After being chastised, C told him that he wanted to talk to him about “relaxation techniques and things like that”.^[1] He was asked to remove his shoes and move to a daybed. PW said that C “seemingly test[ed] [his] reflexes”^[2] using a hammer. He was also asked to remove his socks.
1. Tcpt, 15 August 2017, p 52(30-31).
2. Tcpt, 15 August 2017, p 52(49-50).
PW did not see C again until the following year. He was referred to C by the appellant’s wife who was a teacher at the school.
PW testified that after C dressed him down verbally, C became consoling. PW was told to take off his shoes and socks and lie on the daybed. He was then told to unbutton his shirt. C massaged his feet, his legs working to his upper thigh towards his groin. C then touched his arms, shoulders and chest before working his way back down to the groin area. PW was directed to recall a holiday place, “a beach scene”^[3] or similar. C then counted backwards from 20 while simultaneously suggesting that PW “fall deeper and deeper into a relaxation state”. He used a reflex hammer and stethoscope. He concluded by counting from 10 to 1 rapidly and snapping his fingers. An appointment was made for a week or two later.
3. Tcpt, 15 August 2017, p 57.
PW missed the next appointment and was later admonished in front of other students for doing so. C made another appointment for later that day. On the next appointment there was very little discussion. PW took off his shoes, socks, shorts, and shirt, so that he was only wearing his underwear. PW was again massaged on the daybed but on this occasion C also touched his genitals. An appointment was made for a week’s time.
On the next appointment, C “first touched my anus and started to touch from behind as well”.^[4] There were then regular appointments throughout 1980. PW would be masturbated to ejaculation. C made suggestions to return “through the hypnotic process” and there were also threats that the sessions were an alternative to detention and “you don’t want your parents to find out”.^[5] C asked him questions about his parent’s sex life and introduced him to pornographic magazines.
4. Tcpt, 15 August 2017, p 62(39-40).
5. Tcpt, 15 August 2017, p 64(13-19).
On another occasion, C asked PW to “hop up from my lying down position on my back to all fours and then he effected what I’d describe as a reach around position where he was masturbating me and touching my anus at the same time”^[6] and PW ejaculated. After this, it then happened on a regular basis.
6. Tcpt, 15 August 2017, p 66(11-14).
Two or three months after he started seeing C, PW did something sexual to his brother JW, on two separate occasions directly after two consecutive appointments with C. These appointments were a week to a fortnight apart. The incidents with JW took place in the formal lounge room at their home when JW was approximately seven or eight years old.
Around the time that C first touched PW around the anus, PW needed to see a dentist. He had previously experienced problems with a dentist who had been quite rough and PW also had an extreme fear of needles and dentistry in general. PW understood that his mother became aware of a dentist “using alternative techniques to needles”.^[7] C also suggested to him that he see the appellant because he didn’t use needles but used hypnosis, relaxation and laughing gas. His mother made an appointment three to four weeks in advance.
7. Tcpt, 15 August 2017, p 69(29-30).
PW gave evidence that prior to the appointment C made a phone call to the appellant from his office when PW was present. PW spoke to the appellant who reassured him. After the phone call C told him to “effectively strip off, get onto the daybed” and then “did hypnosis, massaged me, touched me, stimulated me, masturbated me and penetrated me from behind”.^[8] PW was on his hands and knees facing the bed when C penetrated him with his finger.
8. Tcpt, 15 August 2017, p 72(18-20).
In about October or November 1980, PW and his mother had an initial consultation with the appellant. The appellant explained the alternative techniques of hypnosis, relaxation, and what the appellant called “happy gas”. Afterwards his mother booked another appointment.
About three months later, in early 1981 (when PW was 14 and in Year 9), PW attended the appointment for two fillings. His mother picked him up from school during school hours and dropped him off at the surgery but was unable to stay “because of her teaching arrangements she had a class at a different school”.^[9] The appellant spoke to PW about the fillings and the techniques that were going to be used and then took PW through the relaxation process, a “similar technique to what had been used on [him] previously”,^[10] which included counting down. Coming out of the relaxation was similar to the hypnosis and involved a countdown. PW returned home on his push bike, which had been taken to the surgery in the back of his mother’s station wagon and locked to the front fence for the duration of the appointment.
9. Tcpt, 15 August 2017, p 73(29-30).
10. Tcpt, 15 August 2017, p 74(25-26).
The appellant’s surgery was located in 119 Barney Street Armidale. When PW was initially interviewed by police he was confused by the changes that had occurred in the area when viewing Google Maps and had cited the surgery as being exactly one block down from the actual site.
PW saw the appellant a second time about three weeks later, this time riding his bike from school. After waiting, he was taken by the appellant to an area at the back of the surgery. Among other things, he saw a wooden massage-styled daybed with a navy coloured cushion. This was the first time that PW had been to this area. Nobody else was in the room and PW heard the dental assistant who had been present when he arrived lock up and exit through the back door, calling out to the appellant that the front door was locked as she left (at around 5:00pm). PW believed that other people who had been present when he arrived had left prior to the dental assistant.

Count 1 – Indecent assault between 1 January 1981 and 31 December 1982 – Guilty

PW took a seat on the daybed as requested and was told that he did “really well”^[11] with the relaxation and that they would continue with it to prevent further issues with pain and fear of dentists. The appellant began the process of hypnosis. PW’s shoes and socks were off, he was lying on his back, being counted down from 10, thinking of a place where he would feel safe and comfortable. The appellant started counting down to put him in a deeper trance. The appellant was saying things like “we are in a safe place…this is going to be good for you, relax, let go, become part of this process, you are safe here…nothing is going to happen to you”.^[12]
11. Tcpt, 15 August 2017, p 78(47).
12. Tcpt, 15 August 2017, p 81(7-9).
PW’s belt was already undone, his shirt was unbuttoned and the appellant “pulled it completely aside”^[13] so that it was unbuttoned but still on. PW’s eyes were closed and the appellant told him to keep them closed. He then began to massage PW, starting at his feet and ankles. PW described the massaging as “a similar kind of technique to what [C] had previously done to me, had gone up my legs and he had particularly concentrated very very slowly progressing towards, um, my inner thigh and my groin”.^[14]
13. Tcpt, 15 August 2017, p 82(28).
14. Tcpt, 15 August 2017, p 81(41-45).
The appellant touched closer and closer to PW’s penis. When PW became erect, he thought that the appellant sensed that he was uncomfortable and “backed off a little”.^[15] The appellant started touching PW’s chest instead, reassuring him, telling him “to relax and it was all okay, that everything was safe”.^[16] The appellant said, “it was important that we did this relaxation”^[17] and reassured PW again. The appellant then “dove his hands”^[18] into PW’s shorts and rubbed his scrotum, penis and groin through his underwear. The appellant then pulled PW’s shorts down, pulled his underwear to the side and masturbated PW until he ejaculated (count 1). The appellant left the room and PW heard the radio and a muffled sound which PW believed was the appellant masturbating himself. When the appellant returned he cleaned up PW using tissues. The appellant told PW that it was normal, that it was important that they do it and that PW was progressing with the hypnosis and getting better at it.
15. Tcpt, 15 August 2017, p 82(9-13).
16. Tcpt, 15 August 2017, p 82(9-13).
17. Tcpt, 15 August 2017, p 82(9-13).
18. Tcpt, 15 August 2017, p 82(9-13).
PW described his thought processes after he left, saying: “I was devastated that this was happening again. I was confused. I had mixed emotions of, I guess the adrenaline, the euphoria of having an orgasm, but the torment of what had just happened to me, the fact that I felt like I’d been passed from one person to another. I was questioning my sexuality in my head. A whole bunch of thoughts were running through my head at the time”.^[19]
19. Tcpt, 15 August 2017, p 84.

Count 2 – Indecent assault between 1 January 1981 and 31 December 1982 – Guilty

PW went to see the appellant again within a week to a fortnight, on a Thursday, riding his bike and securing it to the fence. He was taken to the back of the surgery by the receptionist who he heard leaving through the back door prior to the relaxation and hypnosis commencing. While he was waiting he saw the appellant’s wife who left shortly thereafter.
The appellant arrived and told PW that they had made some progress on the previous occasion and they needed to continue building on that. He had PW take off his shoes and socks, unbuckle his belt, undo the button on his shorts, and unbutton his shirt. He asked PW to lay on his back on the daybed. The appellant started talking about “relaxing again, picturing a happy safe place, the beach, the sound of the birds, the waves”^[20] and being relaxed as he had done previously, followed by counting down from 10 to 1 whilst telling PW that he was “going to a next level of relaxation and deepness within the hypnosis”.^[21] PW’s eyes were closed. After the countdown, the appellant began massaging him, starting with his feet and working his way up both legs, particularly his inner thighs. The appellant pulled aside his shirt and rubbed his chest, then lowered PW’s trousers and underwear and fondled PW’s groin area, including his penis, scrotum and inner thighs. The appellant cupped PW’s testicles and stroked his penis with his hand which resulted in PW’s penis becoming erect. PW then described the appellant as being “quite quick, rougher than the previous time”,^[22] causing PW to ejaculate quickly (count 2). He was there for about an hour. Another appointment was made and PW left through the back door and rode home on his bike.
20. Tcpt, 15 August 2017, p 90(19-22).
21. Tcpt, 15 August 2017, p 90(23-24).
22. Tcpt, 15 August 2017, p 91(7).

PW did not pay the appellant for the appointments and was concerned about the cost. At this appointment the appellant reassured him that “this was something that we were doing for my good and money was not involved and I didn’t need to worry about money”.^[23]
23. Tcpt, 15 August 2017, p 93(4-6).
PW gave evidence of a third appointment (relied upon by the Crown as context evidence) where he was directed to put his bike out the back and enter through the back door. PW was told again to take off his shoes, socks, shirt, and shorts on this occasion, which left him in his underwear. PW got on the daybed and lay with his eyes closed while he was taken through the same sequences as before with the beach scene, counting down from 10, and commencement of massaging. PW’s genitalia, including his testicles and penis, were then massaged and “stimulated”,^[24] causing PW’s penis to become erect, and eventually causing PW to ejaculate.
24. Tcpt, 15 August 2017, p 95(41).

Count 3 – Indecent assault between 1 January 1981 and 31 December 1982 – Guilty

A fourth appointment took place at around 5:00pm a week or two later. PW arrived on his bike, locked it out the back and entered through the back door. PW chatted with the appellant for a couple of minutes before PW was asked to take his shoes and socks off, which he did. The remainder of PW’s clothing was “completely removed”.^[25] PW was told that things had been progressing really well, that they should continue, and that they would get started with the hypnosis straight away. The appellant commenced with the counting technique and thinking of a happy place or comfortable scenery whilst PW was lying on his back on the daybed. The appellant “physically touched all over” PW’s body and he was “stimulated and masturbated again”^[26] around his groin, scrotum and penis. PW said that he was “masturbated with a hand job on the shaft of my penis”, as well as “touched on the anus until I ejaculated”^[27] (count 3). Before leaving, an appointment was made for the following week. PW then left through the back door and rode his bike home.
25. Tcpt, 15 August 2017, p 97(24).
26. Tcpt, 15 August 2017, p 97(46-47).
27. Tcpt, 15 August 2017, p 98(1-3).

Count 4 – Indecent assault between 1 January 1981 and 31 December 1982 – Guilty

PW again rode his bike to the next appointment (which he thought was on a Thursday), securing his bike at the back. He was running late as it was after 5:00pm and starting to get dark earlier because it was mid-year. PW entered through the back door and saw the appellant standing next to the bed. The lights were on. PW sat on the daybed and removed his shoes, socks, shorts, and shirt. The appellant started another session of hypnosis. Whilst PW was lying on his back, the appellant used the counting down technique, after which the appellant massaged and fondled PW’s groin, penis, scrotum, and anus. PW’s penis became erect and the appellant continued masturbating PW until he ejaculated (count 4). PW estimated that this session took about an hour, after which he rode his bike home.
After this incident PW had a further 15 to 20 (or more) appointments with the appellant. During the school term the appointments were either weekly or fortnightly depending upon commitments. At each appointment only the appellant and PW were present and they followed the same pattern: “relaxation, hypnosis, fondling, massage, masturbation, ejaculation”.^[28]
28. Tcpt, 15 August 2017, p 102(18-19).

Count 5 – Indecent assault between 1 October 1982 and 1 March 1984 – Guilty

PW had another appointment with the appellant around the beginning of the third term of school when PW was in Year 10 in 1982. This would have been at the end of August. PW was 16 years old at this time. The appointment was after 5:00pm. PW rode his bike there and locked it at the usual spot at the back. He entered through the back door of the surgery and saw the appellant, who beckoned him towards the daybed. PW removed his shoes and socks when he sat on the bed and the appellant told him to remove his school uniform, which he did. The appellant told PW to remove his underwear and helped him do so. A session of hypnosis and relaxation commenced; the appellant indicating that PW was progressing well, telling him to relax, focus on his happy place, and then counting down from 10 to 1, touching PW “in the usual way” from his feet up his legs towards his thighs, his chest and arms and then his groin. The appellant “got [him]” to open his legs further and then started touching PW’s penis, scrotum, testicles, and anus. PW’s penis became erect and the appellant then masturbated PW until he ejaculated (count 5).

Count 6 – Indecent assault between 1 October 1982 and 1 March 1984 – Unable to reach verdict; Count 7 – Sexual intercourse without consent between 1 October 1982 and 1 March 1984 – Unable to reach verdict; Count 8 (in the alternative to count 7) – Indecent assault between 1 October 1982 and 1 March 1984 – Unable to reach verdict

Following on from count 5, PW said that he was left alone on the daybed before the appellant returned with C. He then described an incident of sexual abuse that occurred with both the appellant and C present. Count 6 arose out of PW’s evidence that during the incident the appellant and C, whilst wearing rubber gloves, used large quantities of Sorbolene cream which they rubbed into PW’s groin, penis, scrotum, and anus for five to 10 minutes. Count 7 (and the alternative count 8) arose out of PW’s evidence that the appellant inserted his fingers into PW’s anus after C had done so.

Subsequent events

PW continued to see the appellant, he felt “compelled to go back to him” because the appellant “would always say before he brought me out of the hypnosis that we need to continue the treatment”^[29] and a further appointment would be made. PW described a “new norm”, which included the appellant digitally penetrating PW to ejaculation.
29. Tcpt, 16 August 2017, p 117(20-21).
PW gave evidence that he was still seeing C separately at the school, however this was less frequently. He was also seeing C at his day clinic which was located next door to the appellant’s surgery in town – this was becoming more frequent. He said that the daybed at C’s clinic had a face hold and was very different to both the appellant’s daybed and C’s daybed at the school. PW’s father was “not impressed”^[30] that PW attended appointments at C’s clinic and became angry. It culminated in a “big argument” between PW and his father with “a lot of violence around that” and PW left home in 1983 when he was 16 years old and in Year 11.^[31] The principal of the school Brother Cantwell assisted PW with finding accommodation at the Monastery next door to the school.
30. Tcpt, 16 August 2017, p 121(1).
31. Tcpt, 16 August 2017, p 121(28-30).
PW gave evidence that he spoke to a school friend, GM (deceased at the time of trial), in early Year 11 in 1983 who told him that he wore his sister’s underwear at one of the hypnosis sessions with C, enabling GM to walk away. PW stole some underwear from his neighbour’s clothesline and subsequently wore them to a session with C which made C really angry and PW “told him to fuck off, I wasn’t coming back”.^[32] A week earlier PW had tried the same thing with the appellant who had a strong reaction, calling him “a pansy” and asking him to take them off. PW refused and said something like “at least I’m not, you know, at least I’m not a faggot”.^[33] PW then left without commencing any session with the appellant that day.
32. Tcpt, 16 August 2017, p 123(16-17).
33. Tcpt, 16 August 2017, p 124(21-22).
PW was an altar server with the church. When he was in Year 11 and leader of the altar server group, he was approached by two younger altar servers who complained to him of inappropriate conduct by a priest towards them. PW said that he approached Bishop Kennedy (deceased at the time of trial) and told him about the altar boys, C and the appellant, naming him. Bishop Kennedy took him to (the administrator) Father Ross O’Brien’s room and left him with Father O’Brien. Father O’Brien gave PW a “fairly brisk dressing down”, telling him that it was a “very serious matter” and “if it was true, then this was a very serious situation” and the police needed to be involved but that PW was “just a teenager with a wild imagination” and that no one would believe him over somebody who was a school counsellor, a dentist or a priest.^[34] Father O’Brien pulled out a pen and notebook and then handed PW a form to fill it. PW commenced filling the form out but was told to stop by Father O’Brien. Father O’Brien said, “I think we need to get the police involved in this on the phone, so I’m going to get them now”.^[35] Father O’Brien made a call to somebody that PW believed to be the police. PW could only hear Father O’Brien’s side of the conversation, although he could hear a male voice in the background. Father O’Brien recounted what PW told the Bishop and what PW had told him, and “reiterated what he said to me, you know, it was scandalous, and I wouldn’t [be] believed, and that [C] worked for the police who was like the New South Wales truancy officer or something”.^[36]
34. Tcpt, 16 August 2017, p 126(44-49).
35. Tcpt, 16 August 2017, p 127(19-20).
36. Tcpt, 16 August 2017, p 127(32-34).
Father O’Brien then handed the phone to PW. The male on the other end of the line introduced himself with a name and “some kind of rank”^[37] which led PW to believe they were a police officer. Over two or three minutes, the male on the line said:

“…it was serious, I couldn’t make these kinds of statements, and that nobody would believe me, this was not a matter to be mucked around with. You know, [C] is involved with the police; you know, the dentist is an upstanding citizen in the community, and nobody’s going to believe you, you’re just a teenager, and as far as the priest goes, that’s ridiculous.”^[38]
37. Tcpt, 16 August 2017, p 127(48-49).
38. Tcpt, 16 August 2017, p 128(3-8).

The call concluded with PW being told that the male would get back to him. PW handed the phone back to Father O’Brien as instructed and Father O’Brien said into the phone, “Yep, okay. Thank you. Good I’ll talk soon”. PW gave evidence that Father O’Brien after the phone call:

“…made similar kind of threats in that, you know, my parents would be embarrassed and nobody is going to believe an altar boy over a priest, and you know, it’s ridiculous statements to be making. As far as the school counsellor goes, well, you know, he’s an upstanding citizen, you know, works with the police, and nobody is going to believe you about that. As far as the dentist goes, well, you know, he’s got a reputation and he’s, you know, a member of the community. He’s trusted. Nobody is going to trust you.”^[39]
39. Tcpt, 16 August 2017, p 128(24-30).

About a week later PW was sent to C’s office by the appellant’s wife and, after waiting some time, PW saw the appellant and the priest who he had complained about leaving C’s office. He received scowls and was given the “evil eye”.^[40]
40. Tcpt, 16 August 2017, p 130(5).
After the appellant and the priest departed, C said to PW ““You, get in here” and demanded really gruffly”.^[41] C then said things to PW similar to what had been said by Father O’Brien and the police officer, namely that PW was a teenage kid, that “If this gets out, you’re in strife”, and that “Nobody is going to believe you. Your friends aren’t going to believe you, your teachers aren’t going to believe you. You’re going to have no trust left” and that “…your parents don’t trust you. Your parents don’t care”. C threatened that if he spoke about it any further that there was going to be trouble and the police would not believe him.
41. Tcpt, 16 August 2017, p 130(18).
Having seen the appellant, C and the priest, PW said he was really scared. He was fearful for his own safety as he did not know what they were capable of and they were obviously sharing information.
In 1984, when PW was in Year 12 and after he had turned 18, he went to Armidale police station to attempt to report the matter but was unsuccessful. PW said that he told the officer at the counter that he wanted to report some crimes but would not do so at the front counter. The officer at the counter told him, “[Y]ou can say anything you’ve got right here at the counter, and you’ll have to deal with me”^[42] (PW believed that the person at the counter knew who he was). PW realised he wasn’t going to get anywhere and left.
42. Tcpt, 16 August 2017, p 131(38-39).
Later, in 1985 when he was working at a radio station 2AD he had a “light conversation” with an announcer at the station, SR, telling him that he tried to complain to police but he had been “verbalised and threatened and pushed away and not listened to”.^[43]
43. Tcpt, 16 August 2017, p 132(19).
PW also said that in 1985 he had a conversation with a highway patrol sergeant called “Peter”. He told Peter that he had some issues that he needed to bring to the police’s attention and he believed there had been a cover up by police. The officer told him to go to the police station and ask for the station sergeant. PW went to the police station and told the counter officer that he had allegations to make that were very serious. A police sergeant, who saw him in a private room, told him that “these kind of allegations aren’t going to be believed by anybody, that the, the nature of, of my complaints, you know, aren’t going to be able to be proved; that there’s nothing to – for them to investigate”.^[44] The sergeant then asked who the complaints were against. PW named the appellant, C, the priests and identified the places where the offences took place. The sergeant did not make any notes throughout the conversation. PW said that he wanted to make an official statement but he “wasn’t allowed”.
44. Tcpt, 16 August 2017, p 135(1-5).
PW gave evidence that between 2005 and 2007 he spoke to his former partner CH about the appellant, giving her specific details.
PW made a statement to police over four days from 17 November to 20 November 2013.

The recorded conversation

PW gave further evidence concerning discussion he had with police in August 2014 in relation to being fitted with a recording device and with meeting the appellant near the Armidale Tourist Information Centre.
He had a conversation with the appellant on 5 August 2014, which included whether he remembered PW. The appellant “indicated that he sort of did but wasn’t really sure”.^[45]
45. Tcpt, 16 August 2017, p 175(4-5).
At about midday on the same day, after being assisted by detectives with a recording device, the appellant had a conversation that was recorded.
The recorded conversation (Exhibit 10) was played to the jury.
The recorded conversation included the following exchange after PW referred to bedwetting and hypnosis becoming “wrapped around the subject of bedwetting”:

PW “- - - and then, um, and then you abused me. Many times.”
Appellant “Did I?”
PW “Yes.”
Appellant “Like, meaning what?”
PW “You sexually abused me”
…
Appellant “Well that doesn’t fit into my … Oh God, I don’t know. I’m not aware of that - - -”
PW “What? I was going [sic] on a regular basis to you for probably up to 2 years. I’d ride my bike in after school. I got there quarter to 5 or what have you. You’d shut the doors and the secretary would go and we’d go out into the back room.”

The appellant asked PW why he kept returning “if things weren’t right” and PW replied “Because you had hypnotised me”. The appellant denied knowing C. PW said “You had lots of dealing with him. He was even there”. In further conversation, when PW put to him that his appointments were weekly or fortnightly, the appellant replied, “That is odd”. PW said he would ride his bike in “…and you got me to put my bike in, lock it up at the back rather than at the front.” PW further said: “Lock it up to the downpipe. Remember the awning you had at the back there. You had me lock my bike around that as opposed to locking it to the front fence, which I did on the first appointment”. When the appellant said “You couldn’t lock it on the front fence anyway could you?”, PW replied “Yeah, on the wire”. The appellant said the front fence was brick so there was no place a bike could be locked on it. The appellant did not remember the wire between the pillars on the front fence. The appellant questioned PW by asking, “Yeah? Why would I have asked you to lock your bike on it?” PW responded, “Because I wanted to make my bike secure because I used to race bikes with you know, [JB] was my coach. You’d remember me…”
PW asked why the appellant picked him to which the appellant replied:

“Yeah, that would be interesting to me, why you? Because that just doesn’t fit into all the things that I remember that I was doing. I would have thought… A little bit surprised but it’s possible, a little bit surprised that just one dental thing and then that I would have said, invited you back again.”

PW told the appellant that C had referred him so he could get hypnosis instead of needles. The appellant said, “- - - that was for the teeth, for the dentistry”. PW said the appellant let C in, and C watched and sometimes instructed.
The appellant said “Ah, I hope you didn’t interpret, ah, something wrong in what we were doing”. PW replied:

“Well you were physically touching me. You were physically masturbating me.”

The appellant said: “Was I?”
There were further exchanges between PW and the appellant which included the appellant denying recognising PW earlier that morning. The appellant said he did not recall, “it’s not ringing any bells”, he believed he “didn’t do anything” and what PW told him “doesn’t fit into the style of anything … what I was doing”.
The appellant said he did not know C and did not know C practised hypnosis. He said he only knew one other in town who did. The following exchange occurred between PW and the appellant:

PW “I don’t know, but he probably sat there and watched. I don’t know. He definitely coached you at one stage. He was there instructing you.”
Appellant “Oh, for what to suggest or something or other?”
PW “Yeah, all of that.”
Appellant “Hell that, that - - -”
PW “Why the smirk and the shrug?”
Appellant “Ah, I hope you didn’t interpret, ah, something wrong in what we were doing.”

PW’s recollection of the unrecorded telephone conversation with the appellant on 6 August 2014 including the following:

PW “I’m still very upset about what’s happened to me, and I just want some kind of acknowledgement about what you did to me so that I can put it behind me, and right now an apology from you about what you did so that I can forgive you, and then I can get on with my life.”
Appellant “I see. Okay.”
PW “This has affected me for all these years and I just want to move on and fix my life up and put it behind me. I need you to acknowledge what you’ve done so that I can do that. I need to get on with the rest of my life and I need you to help me do that. Now can you help me?”
Appellant “I understand. Well, I can apologise for that. I mean, I can give you an apology if something did actually happen to you. I’m sorry if I did anything but I don’t believe that I did and I can only apologise if something did happen. Okay?”
PW “Okay, thank you for that. I need to move on and put this behind me and, yes, it did happen.”
Appellant “I’m sorry if something did happen, but I don’t actually think it did.”^[46]

46. Tcpt, 17 August 2017, p 192(9-34).

A summary of JW’s evidence

JW was born in 1972 and is the younger brother of PW. He lived with his family in Armidale, attending a local Catholic primary school, and the same … Catholic High School as PW.
JW knew someone he referred to as “the older boy” when he was in primary school. The first time something happened was in 1981 or 1982 when the older boy tried to use something like hypnosis on him.

The first time JW attended the appellant’s surgery was in March or April 1981, when he was nine years old, for a check-up and to have his teeth cleaned. He was not aware of any particular reason why he went to the appellant, however, he did have a fear of needles from attending a school dental clinic in 1980.
JW’s mother collected him from school and took him to the dental surgery. On this first occasion, JW went into the treatment room with his mother, the appellant and a dental assistant (who was a young woman). The appellant appeared old, short and skinny with a neat haircut. After the appointment, his mother had a discussion with the appellant who said he could help JW with his fear, with hypnosis being mentioned. JW and his mother were taken into the hypnosis room to see the space. JW described the room and said that it contained a single bed and a chair. His mother appeared excited and positive and arrangements were made for him to return. JW said that his mother asked if she could be present for the hypnosis itself, but the appellant said it was essential for him to be alone with JW for the hypnosis to work.
JW said that he returned for a second appointment within a fortnight on a Thursday at 5:00pm. His father drove him and they waited during which time the receptionist left through the front door. The appellant then told JW’s father the session would take 45 minutes to an hour and his father was to return to pick him up at a certain time, after which his father left.
After waiting for a few minutes, the appellant called JW into the hypnosis room and asked him to sit on the edge of the bed. The appellant “explained to me what he was going to do…explained to me what hypnosis was and that my parents had asked…him to try hypnosis to get me over my fear of medicals. He explained what sort of wording he would use and how I was likely to feel…He then took a metal watch, silver-banded metal watch, held it up in front of me and proceeded to count down, interspersed with various verbalisations such as “you are relaxed”; “you are getting sleepy”; “when I get to zero you will be fast asleep””.^[47]
47. Tcpt, 22 August 2017, p 427(39-46).
The appellant told JW that he would free him of his fear, he was safe, he would feel relaxed, he would not remember anything when he was hypnotised, and he would be asleep. The appellant said he would reverse the countdown from zero up to 10 and when he arrived at 10, JW would be fully awake and alert, as well as safe and happy, and he would not remember anything from the session.
JW was sitting on the bed with his eyes open at this time and remained on the bed whilst the appellant took him through a countdown from 10 to 0. The numbers would be counted out three or four at a time, and then verbalisations in between those. When the appellant arrived at about “two”, JW’s eyes were closed. He did not recall the clothes he was wearing. When the appellant arrived at zero, he “verbalised” for JW to lie down and guided with one hand on his chest and the other on the back of his head until he was on his back.

Count 9 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty

The appellant then said a “range of positive or supportive verbalisations” such as “You are feeling relaxed”, “You are safe”.^[48] JW had on all his clothes except for his shoes. The appellant began rubbing his forehead, after which he spent a period of time gently touching him on the chest, his stomach, his “clothed groin” and then his upper thighs. A similar amount of time was spent on each part. The appellant then returned to JW’s groin area and undid JW’s fly and button on his long pants, pulled his pants down slightly and touched his underwear for a minute or two. He then pulled JW’s pants right down and his underwear to just above his knees. The appellant then used his hand to fondle JW’s genitalia, which included his pubis, penis, and testicles, by gentle touch and rubbing (count 9).
48. Tcpt, 22 August 2017, p 428(49)-429(6).

Count 10 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty

JW still had his eyes closed when the appellant left the room but he was not feeling hypnotised. He pulled up his pants, sat on the edge of the bed and watched a black and white portable television screen which was on the southern wall. JW heard “[a] shuffle and a thump”^[49] so he lay back down and closed his eyes. The appellant came in, came over to the bed and repeatedly tapped the middle of JW’s forehead with his fingers. The appellant then quickly went through the same actions of touching JW’s forehead, chest, stomach, and pulled JW’s pants down again. The appellant again fondled JW’s genitalia by softly touching his pubis, penis and testicles for about five to 10 minutes (count 10). JW did not feel hypnotised. The appellant then pulled JW’s underwear back up, with JW lifting his hips off the table to assist with this process. The appellant pulled up JW’s trousers and did up his fly. The appellant then did the “reverse” whereby he touched the outside of JW’s pants, his clothed groin, stomach, chest, forehead, and gave verbalisations to count him out of the process. The appellant counted from one to three and then said, “You are slowly waking up, you do not remember what’s going on in the session and you’re are [sic] feeling – you – you’ll feel awake and alert and safe when the countdown finishes”,^[50] counted up a further three numbers, gave another verbalisation, and then another three or four numerals and a verbalisation. The appellant asked him how he was and JW said he was fine.
49. Tcpt, 22 August 2017, p 431(41).
50. Tcpt, 22 August 2017, p 432.
JW believed that before he was counted out of the hypnosis, his father had knocked on the door, causing the appellant to leave the room and answer the door. They had a conversation that JW could not hear. JW’s father was in the waiting room when the session concluded. His father wanted to see the space so the appellant invited him into the room while JW was still on the bed. The appellant explained the hypnosis process and asked JW how he felt. JW’s father also asked him how he felt and then they left.
JW’s mother took him to the dental surgery the following Thursday at 5:00pm. She took him inside then left. He said on this occasion he was again subject to a massage along the lines of the previous massage, culminating in the appellant fondling his genital area which involved soft touch of his pubis, penis, and testicles. The appellant then stroked and rubbed JW’s penis with a thumb, index finger, and tall finger, the stroking and rubbing of his genital area lasting for five to 10 minutes. The entire session took 45 to 50 minutes. JW did not recall leaving the premises but did recall going home with his mother. Apart from school holidays, JW believed that he attended the appellant’s surgery every Thursday at 5:00pm for a period of 18 months. The sessions in the first three to four weeks were similar with no change in what the appellant did to JW.

Count 11 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty; Count 12 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty

During one of the Thursday afternoon sessions about three to five weeks after the sessions had started, the appellant did something new. JW did not recall how he arrived at the surgery or going into the surgery on this specific occasion. The appellant used verbalisations and the hypnosis technique, using the same words as on the previous occasions and in this incident, a wristwatch. The appellant pulled JW’s pants down and fondled his penis and testicles (count 11). The appellant left the room at some point.
After the appellant re-entered the room, he kissed JW on the lower abdomen and then on the pubis and then on the penis (count 12). His mouth came in contact with JW’s body for several minutes. After the appellant had finished kissing JW’s penis, the “wake up part”^[51] of hypnosis was applied, his pants were pulled up and the previously described technique of touching the lower part of JW’s body, back to his forehead, and then counting up was done. After the appellant kissed JW’s penis, JW was in the room for between five to 10 minutes. JW did not feel affected by hypnosis during this incident. He did not recall what he was wearing on that day or how he got home.

Count 13 – Sexual intercourse without consent between 14 July 1981 and 30 April 1983 – Not guilty; in the alternative Count 14 – Indecent assault between 14 July 1981 and 30 April 1983 – Not guilty; further in the alternative Count 15 – Indecent assault between 1 January 1981 and 13 July 1981 – Guilty

51. Tcpt, 23 August 2017, p 442(26).

Over the next one or two sessions, the appellant progressed to sucking JW’s penis. This commenced about seven to eight weeks after the first session. On the occasion that this first occurred, JW did not recall the time that he went to the surgery. He was in the hypnosis room when the appellant went through the hypnosis process as previously described. JW was laid down on the daybed and taken through the touching from his forehead to his groin with verbalisations. His pants were pulled down, his genitalia were fondled, and the appellant left the room for five to 10 minutes during which JW heard a noise, and he pulled up his own pants. When the appellant returned, he rapidly touched JW’s forehead, chest, stomach, and groin. The appellant pulled down JW’s pants again to below his knees, fondled JW’s genitalia, and kissed him from below his belly button to his penis whilst continuing to fondle him. JW did not give permission to the appellant to do these things to him. When his penis was being kissed there were no verbalisations because they had ceased when his chest and stomach were being touched. When his penis was being kissed, the appellant was also touching it with his fingers. JW recalled his penis being sucked on this occasion (count 15). JW’s eyes were closed. He did not feel that he was hypnotised. He was still able to pull his pants up and sit up on the bed and observe the television although he could not recall what was being shown on it.
JW recalled very early on in the “oral phase”^[52] and a couple of other times (that he was unable to place in time), he looked at the appellant through half closed eyes. On an occasion during the oral phase, he thought that the appellant caught him looking through half closed eyes. The appellant exhaled sharply with a stern look on his face. JW then closed his eyes and felt repeated tapping on the middle of his forehead. JW described two further sessions where the appellant sucked his penis that were very similar to the first occasion. This occurred on other occasions up until the holidays in September and October of 1982. JW was able to recall this timeframe because those holidays were a “reprieve”^[53] because he did not have to go to the appellant’s surgery for hypnosis.

Count 16 – Sexual intercourse without consent between 14 July 1981 and 30 April 1983 – Not guilty; in the alternative Count 17 – Indecent assault between 14 July 1981 and 30 April 1983 – Not guilty; further in the alternative Count 18 – Indecent assault between 1 January 1981 and 13 July 1981 – Guilty; Count 19 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty

52. Tcpt, 23 August 2017, p 446(22).

53. Tcpt, 23 August 2017, p 449(5).

About three months after the initial visit with his mother there was another phase. This phase followed the same process including the use of the watch, verbalisations, and count down. The appellant continued to the point of undoing JW’s clothing, pulling his pants and underwear down to below his knees, touching JW’s genital area and then kissing and sucking JW’s penis (count 18). The appellant then left the room for a short time. When the appellant returned to the room the first instance of a new phase occurred. The appellant touched JW again by fondling his penis, and then reached under JW’s right leg and put his fingers around JW’s anus with a soft touch for approximately five to 10 minutes (count 19).
JW did not feel hypnotised on this occasion. This incident occurred about three months after the first appointment he attended with his mother. JW could not recall the specific building of the appellant’s surgery but recalled “cutting [a] corner”,^[54] that is, entering on one corner and exiting on another, when walking his bike through the service station after leaving the appellant’s surgery on his way home.

Count 20 – Indecent assault between 1 January 1981 and 30 April 1983 – Guilty; Count 21 – Sexual intercourse without consent between 14 July 1981 and 30 April 1983 – Guilty; in the alternative Count 22 – Indecent assault between 14 July 1981 and 30 April 1983 – No verdict required; further in the alternative Count 23 – Indecent assault between 1 January 1981 and 13 July 1981 – No verdict required

54. Tcpt, 23 August 2017, p 451(9).

The next week, JW sat in the waiting room while the appellant got ready. JW then followed him into the hypnosis room. The appellant went through the “motions and verbalisations”^[55] of attempting to hypnotise JW and then lay him down on the bed. The appellant touched him on the forehead, chest, stomach, and groin while doing the verbalisations. The appellant pulled down JW’s pants, fondled and kissed his penis, and then left the room (count 20).
55. Tcpt, 23 August 2017, p 452(1).
JW pulled his pants back up, sat up, and watched television. When he heard a noise, he lay back down. The appellant re-entered the room, pulled JW’s pants back down, fondled his penis and put his hand under JW’s right leg, “feeling around [his] anus”.^[56] The appellant lifted JW’s right knee with his right hand and applied pressure whilst the appellant’s left hand was on JW’s shoulder also applying pressure, causing him to roll over towards the wall. The appellant positioned JW’s legs so that his knees were together. The appellant then “probed around” JW’s anus with his fingers and then a finger entered JW’s anus (count 21). JW felt scared, shocked, confused, and “didn’t really know what was going on”. JW experienced a mild discomfort without pain. He felt the desire to expel what had been entered in his anus; his anus contracted like “[he] needed to poo”. The finger remained in JW’s anus for “a matter of minutes”. JW did not give permission for the appellant to put his finger in his anus. The appellant did not say anything to JW when he was doing this; there were no verbalisations after his chest or stomach had been touched. JW recalled leaving the hypnosis room but not the building. He did not feel hypnotised but felt he “didn’t have control over my body to some extent”. He explained that he was not comfortable in that position, “facing the wall and having somebody else’s finger inside me”, but he “felt powerless” to move or move himself out of the situation.
56. Tcpt, 23 August 2017, p 452(7-8).
JW continued to see the appellant. He thought that the hypnosis started to take effect from about the time that he was first digitally penetrated by the appellant and most of his memories stopped from then. He had a “reprieve” over the autumn holidays (he believed in 1982) and after that he refused to go back. JW said that he subsequently went to another dentist who “refused to serve [him]…Because [he]’d soiled [him]self”.^[57]
57. Tcpt, 23 August 2017, p 456(12-15).
JW did not pay for the visits but he believed his parents paid $10 per appointment because he recalled a conversation with his mother where she said something to the effect of “We spend $10 a week to send you there, you need to go”.^[58]
58. Tcpt, 23 August 2017, p 454(24-25).

A summary of JW’s evidence concerning C

JW gave evidence that he first heard the name C within a week of starting at … Catholic High School when PW told him “Don’t ever go into his office and don’t ever be alone with him.” [59] JW’s evidence about C included C approaching him in the school grounds on multiple occasions and encouraging him to come and see him for help. He was in class one day when his teacher was told that JW was required. JW was taken to C’s office where C explained he was going to do some relaxation exercises with him. C produced a ballpoint pen, held it in front of JW’s face and asked JW to follow the tip of the pen with his eyes. C gave verbalisations that were familiar to him, such as a countdown from 10 to 1. After about number three or four, JW blacked out.
59. Tcpt, 23 August 2017, p 460(27).
JW was unable to isolate a memory of waking up from blacking out in C’s office. He said “I have no link between set occasions in [C’s] office and my few memories of waking up”. [60] JW could recall two or three times of being at C’s door, but did not recall with his “visual memory” in the room. JW said:

“I have a memory – physical memory of him putting his erect penis in my mouth. Of gagging and feeling like I was choking, and I have physical memory – I don’t know if they’re physical memories or not, but I have physical memories of pain and opening my eyes up to face a blank wall. Pain originating from my bottom.” [61]
60. Tcpt, 23 August 2017, p 463(37-38).
61. Tcpt, 23 August 2017, p 464(5-9).

JW first started getting haemorrhoids around that time, in about Year 8.
JW said that he did not tell his parents about what the appellant had done to him out of fear and he also believed it had something to do with the verbalisations that were used. He did not tell his parents what occurred with C out of fear, isolation, and mistrust of his parents.

Subsequent events

When he was 16 years old, he told “Mel” and her girlfriend that he was being abused by Bill, a neighbour, in the caravan park. He told them he “had [a] history of sexual abuse with other people in Armidale, and that [he] couldn’t deal with it anymore”.^[62] He did not give them names but spoke about the dentist and the school counsellor. Bill did not use hypnosis on him.
62. Tcpt, 23 August 2017, p 473(15-17).
In the first six months of 1989, he spoke with a group of people which included JM and VH. He told them about the older boy, the appellant and C without naming names or identifying labels.
He gave further evidence of disclosures that he had made to TS and AW. He had several conversations with TS in 2010 in relation to the older boy, the appellant, and C. He told AW about what happened to him and named the appellant and C.
JW said that in the late 1990s, his mother asked him if he had been abused by the appellant. He told her he had been but did not give her details about what had happened. He told her he had been abused by multiple people. It was a brief conversation.
JW said that he never spoke to PW about what had happened to him over the period he had given evidence about. When JW became a parent in 1992, he asked PW if he had been abused by the appellant and PW replied “yes”.^[63] He asked if he had been abused by C and PW replied “yes”. PW then told him “not to ask him any more questions ever again”.
63. Tcpt, 23 August 2017, p 476(49).
JW saw Jane Clark, a psychologist in Armidale in 2010 and a psychiatrist, who was a Sri Lankan with a surname commencing with “V” in 2012. He also saw Maria Selvey, a psychologist in 2012.
Around the time he was seeing Ms Clark, he applied for criminal compensation through a free legal service. The claim related to the older boy, the appellant, C, and Bill.
JW made his first complaint to police in 2011.

A summary of SF’s evidence

SF was born in 1968 in Armidale. SF commenced Year 7 in 1981 at a local high school.
SF gave evidence that he was in primary school when he first attended upon the appellant’s dental surgery. His mother always attended those appointments with him. At the start of 1982, the appellant extracted SF’s wisdom teeth. SF gave evidence that he returned to the appellant on a subsequent occasion in early 1982. SF had been misbehaving; his father removed the bolt out of SF’s rifle as punishment and directed him to attend upon the appellant to improve his behaviour.

On the first occasion, SF attended the dental surgery with his mother. He was in Year 8 at school and he was wearing his school uniform. The appellant took SF into a back room while his mother remained in the waiting room. The appellant told SF to lie down. The appellant had something in his hand which he moved in a pendulum or swinging motion. The appellant clicked his fingers and counted down. The session lasted 15 to 20 minutes. The appellant did not improperly touch SF on this occasion.

Count 24 – Indecent assault between 1 January 1982 and 31 December 1982 – Guilty

SF returned to the appellant the following week. SF’s mother took him to the appointment. The appellant took him to the back room where they were alone together. The appellant told him to remove his trousers so that SF was wearing his underpants. SF lay on the bed. The appellant attempted to hypnotise SF by dangling an object and counting down. SF’s eyes were closed. SF felt the appellant’s hands rub and brush over his testicles and penis. It lasted for about 10 to 15 minutes until the appellant counted back and clicked his fingers. SF did not feel hypnotised.

Count 25 – Indecent assault between 1 January 1982 and 31 December 1982 – Guilty

SF returned to the appellant the following week on a Wednesday or Thursday. He again attended the surgery with his mother. He entered the back room where he was alone with the appellant. The appellant told him to take his trousers off and get onto the bed. He dangled an object in front of SF and counted backwards. SF’s eyes were closed but he was not asleep. He was lying down on the bed. SF felt the appellant’s hands on the outside of his underpants rubbing against his testicles and penis. This lasted for about 15 to 20 minutes. SF dressed himself and returned to his mother in the waiting room.
SF attended the surgery on a further four to six occasions. On each occasion, the appellant purported to hypnotise him before improperly touching him.
SF attended the dental surgery again when he was in Year 10 in 1984 after an accident that knocked his two front teeth out. SF did not want to return to the appellant’s surgery after his prior experience, however, he acquiesced when his mother said he had to go as she was paying for the treatment. He then recalled returning for another and final appointment when one of the repaired teeth broke off.
SF first disclosed the alleged conduct in 2014. His wife told him that a dentist in Armidale had been arrested for offences against children. She had learnt of this from watching television. SF responded by disclosing the alleged abuse to his wife. She encouraged him to report this to the police and SF made a statement to police in October 2014.

A summary of ST’s evidence

ST was born in 1970. He gave evidence that he attended upon the appellant in 1979 or early 1980. His mother took him to his first visit which was only an assessment with no dental work performed.
ST attended on a second occasion to have a tooth removed. His mother dropped him to the appointment. ST was tense about having a tooth removed. The appellant had his hand on ST’s shoulder and forearm. He encouraged ST not to be tense and to calm down. ST believed he passed out during this first extraction. ST’s mother collected him from the appointment about 45 minutes to one hour later. No other area of his body was touched at this appointment.
About three to four weeks after the first visit, ST returned for another extraction. He believed it was after school. He was dropped to the surgery by his mother. The appellant administered a needle. He rubbed his shoulder and forearm telling him, “[d]on’t be so tense…I’m not going to hurt you. You’re a highly strung kid”.^[64] He did not pass out on this occasion.
64. Tcpt, 29 August 2017, p 709(46-48).
After a further month, ST returned to have a plastic mould fixed to his bottom teeth. He was wearing his school uniform. ST was stressed. The appellant rubbed his shoulders, forearm, and stomach for “quite an amount of time”.^[65]
65. Tcpt, 29 August 2017, p 711(8).
In late 1980 or early 1981, ST returned to the appellant’s surgery. He was about nine or 10 years old. It had been six months since his last visit. He attended to have the plastic mould removed. ST was “uptight”^[66] about the procedure. The appellant rubbed his shoulder, forearm, stomach, and outer thigh through his school uniform. The appellant said “trust me, I’m not going to hurt you”^[67] which he repeated in a monotone voice as if it were a mantra. The dental session was conducted in the dental surgery room and lasted between 45 minutes to one hour.
66. Tcpt, 29 August 2017, p 712(25).
67. Tcpt, 29 August 2017, p 712(50)-713(1).

Count 26 – Indecent assault between 1 June 1981 and 31 December 1981 – Guilty

ST returned to the appellant to have the dental plate re-cemented. In late 1981, six months after the plate was reinserted, it was removed for the second time. The appellant rubbed ST’s shoulder, stomach, thigh, forearm, and told him to calm down. ST recalled that at each consecutive visit, the appellant’s physical contact escalated. After the appellant removed the plate, he slid his hand up ST’s thigh underneath his shorts. He touched ST’s penis and testicles on top of his underpants for between 30 seconds to 1 minute. There was no other staff member present at this appointment. ST’s mother collected him from the appointment. He gave evidence that he did not see the appellant or another dentist after this visit.
ST first complained to his wife in 2015. He decided to go to the police after he saw a newspaper article about the appellant. He made a statement to police on 20 May 2015 which was about one month after he disclosed the alleged conduct to his wife.

Tendency evidence

Before the jury was empanelled, the trial judge heard argument over a number of days which included an application for separate trials by the appellant and consideration of the Crown’s notices of an intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW).
In a judgment delivered on 2 August 2017, the trial judge dismissed the application for separate trials and ordered that the trial proceed on all 26 counts on the indictment. Her Honour further decided that the Crown was entitled to adduce evidence of each of the complainants as tendency evidence, which was cross-admissible in respect of each count and the evidence of OW, CW, MR, and JC (conveniently referred to as “the tendency witnesses”) to prove that the appellant had a tendency to have a sexual interest in young males and had a tendency to act on that state of mind by either of the following activities or a combination of those activities:

to exploit his position as a dentist for his own sexual purposes; or

to display a sexual interest in teenage, or pre-teenage boys; or

to fondle the penis and testicles of teenage and pre-teenage boys; or

to masturbate teenage and pre-teenage boys; or

to use hypnotherapy as a tool to engage in inappropriate touching of teenage or pre-teenage boys; or

to insert his fingers or fingers into the anus of teenage and pre-teenage boys.

A summary of JC’s evidence

The first tendency witness called by the Crown was JC. He was born in 1974 and commenced as a boarder in an Armidale school in 1986. He gave evidence that he was 12 or 13 years old at the time of his first appointment with the appellant. He said he told the appellant that he was nervous about dental treatment and the appellant told him that he had several ways he would be able to help him. He could hypnotise him or give him a massage. He had several visits. On one of those visits, in relation to massage, the appellant told him to loosen his belt, which he did. The appellant put his hands down underneath JC’s pants, on top of his underpants, and massaged the top of JC’s thighs on both legs close to where the line of his underwear would sit. The massage was “[v]ery close”^[68] to his genital area and the appellant’s hands passed over his penis. JC had his eyes closed.
68. Tcpt, 30 August 2017, p 748(12).
JC said that the experience made him feel very uncomfortable, but he did not say anything. He gave evidence that the appellant was repeating “relax - relax” in a quiet voice. JC could not recall if the hypnosis occurred before the massage but he thought so.
The second attendance occurred one or two weeks later for root canal treatment the appellant used hypnosis to help him stop biting his nail.
JC recalled being hypnotised on one occasion and being massaged on one occasion. He told his mother about the massage, he thought between a day or a couple of weeks later. He recalled saying to his mother that the dentist touched him. He either said on his groin area or on his penis.
In 2014, JC saw a news article in relation to a dentist who had been charged with sexual offences. He conducted an internet search and found the appellant’s name. He made a statement to the police on 25 February 2015 which was the first time he had spoken to a police officer in relation to the incident.

A summary of OW’s evidence

The next tendency witness was OW who was born in 1974. He first went to see the appellant when he was five or six years old and saw him once a year for check-ups, toothaches or fillings. He stopped seeing the appellant in the mid to late 1980s.
OW gave evidence that sometime between when he was six and 11 years old, an event occurred when he was in the dentist’s chair. He said the appellant rubbed his right arm. He noticed the appellant’s penis becoming semi-erect and there was a bulge in the appellant’s pants. His recollection was that this occurred on at least one occasion.
After this occasion, OW returned for a non-dental related appointment with the appellant when he was around seven to nine years of age – between 1984 and 1986. His mother dropped him off and told him there was a treatment that she wanted him to experience. The appellant took him through reception and down the corridor to a room on the left. The appellant asked him to remove his shoes and socks and get on the bed. He was further asked by the appellant to lie on the bed, his head on the pillow, close his eyes, and imagine he was on the beach. The appellant started touching OW’s feet first, followed by his legs with both hands. The appellant worked his way up to his thighs and groin area. The appellant may have touched his genitals because “[i]t was close”.^[69] He could not say for how long the appellant touched that area. OW thought he must have “squirmed”^[70] because it was inappropriate and made him feel uncomfortable.
69. Tcpt, 30 August 2017, p 780(1).
70. Tcpt, 30 August 2017, p 779(33).
OW recalled that throughout the touching, the appellant was saying to him that he had been a naughty boy and that he could help him but that OW must not tell anyone. OW said that he was on the bed for at least half an hour. He thought that it might have been on the weekend as there was nobody else in the surgery.
OW was picked up by his mother and taken home. He did not tell her what had occurred.
A week or two later, his mother took him to the appellant’s surgery along with his brother and sister. As they approached the front door, OW described “sheer terror, overwhelm[ing]” him.^[71] He fled down the street. He never went back to see the appellant again.
71. Tcpt, 30 August 2017, p 781(46).
OW gave evidence that he first told someone about what had occurred “four or five years ago”,^[72] prior to making his statement to police on 5 November 2014. He calculated that it was about eight years prior to giving evidence. He said that his statement to police was made after his brother CW sent him an email advising him that the media were reporting that the appellant had been charged with sexual offences. After speaking with CW, he decided to go to the police.
72. Tcpt, 30 August 2017, p 782(28).

A summary of MR’s evidence

MR was born in 1973. The appellant was MR’s family dentist.
MR saw the appellant in either Years 10, 11 or 12 in relation to a plate that was in his mouth due to crowding of his bottom teeth. These appointments took place in the dental chair in the main room in the surgery.
MR gave evidence that he saw the appellant for hypnosis to help with his schooling and his grades. The hypnosis sessions occurred in a room towards the back of the surgery on the right. There was a bed and chair in the room.
MR said that he never felt as though he was hypnotised. He said that he lay on the bed and the appellant sat on a stool or chair facing him. MR said that the appellant started massaging him around the lower ankles and lower legs and as the session continued it built up so that the appellant was massaging him on the deep inner thigh area. He only recalled the appellant using one hand. When the appellant’s hand was at MR’s thigh area, it would brush against MR’s underwear where his penis and scrotum were.
The massage lasted for 20 to 30 minutes and there was never anyone else in the room during these sessions.
MR recalled that there was one occasion when there was a “vigorous moving of clothing”^[73] whilst he had his eyes closed, which he believed was the sound of the appellant masturbating himself.
73. Tcpt, 30 August 2017, p 811(34).
MR attended upon the appellant on multiple occasions for hypnosis. The only touching that occurred was the massaging of the legs and upper thigh. MR stopped seeing the appellant for the sessions prior to finishing the Higher School Certificate in 1990.
He gave evidence that he never told his parents about what occurred because he was “very unsure, uncertain about what was actually going…on”.^[74] He held the appellant in high regard and questioned himself thinking “did that just happen to me?”, so he “put it behind” himself.
74. Tcpt, 30 August 2017, p 812(5-6).
MR attended upon the appellant again when he was about 20 years old for a tooth extraction. The first time he told anyone about what had happened with the appellant was when he provided a statement to police on about 23 March 2015. He made this statement after hearing about the appellant’s charges from family, friends, and media reports.

A summary of MB’s evidence

MB was born in 1976. At some stage in the 1980s or 1982, MB first attended the appellant’s dental surgery when he was five or six years old.
At this appointment, the appellant and MB’s mother arranged for MB to return a few weeks later for a meditation session after the appellant had told MB’s mother that MB was nervous and needed treatment.
At the later appointment, MB recalled lying on his back on a mat in a room with a dental chair. He was undressed until he was only wearing his underwear. The appellant knelt beside him and massaged his body, upper thighs and stomach with two hands for about 30 minutes. MB recalled music playing in the background during the session. MB did not recall anybody else being at the surgery.
MB gave evidence that he was collected by his mother. He did not tell his mother or anyone else at that time what had occurred.
MB made a statement to police on 20 October 2014.

A summary of CW’s evidence

CW, the older brother of OW, was born in 1972. He gave evidence that, in about 1981, the appellant extracted five teeth over a number of weeks and fitted a dental plate. All the dental work occurred in the dental surgery room and was accompanied with hypnotherapy by the appellant for relaxation. He thought these dental sessions were around 4:00pm or 5:00pm.
CW also attended pure hypnotherapy sessions in 1981 or 1982 when he was eight or nine years old after the appellant suggested it to CW’s parents. These sessions occurred in a room further down the hall to the left, past the reception area at about 4:00pm.
At the first session, CW lay on his back on the massage table or chair. He recalled a “monologue”^[75] by the appellant about feelings of lightness in CW’s body and the appellant encouraging him to imagine a lack of gravity. The session lasted for approximately half an hour.
75. Tcpt, 31 August 2017, p 855(26).
He had at least four or five pure hypnotherapy sessions. He was not always lying on his back on the bed; he remembered lying on his front at other times. He did not remember any physical contact occurring during these sessions. He remembered lying on his front with no shirt on and his pants lowered an inch or two. Whilst he was in this state, he heard the appellant breathing quickly and loudly a short distance behind him; this happened on more than one occasion. He was lulled into a meditative hypnotic state for about 30 minutes during these sessions.
In 2012, CW had a conversation with his brother OW regarding their dentist. In 2014, CW made a statement to police which he signed on 15 February 2015. Also, in 2014, CW was sent Facebook material linking to a media article about the appellant. He forwarded that material to OW. CW also had detailed conversations with OW regarding the reasons why OW was attending on the police.

Other evidence in the trial

In addition to the evidence of the complainants and the tendency witnesses, the Crown called 27 witnesses. These witnesses included EW, the mother of JW and PW; the parents of ST; the mother of OW; the mother, father and brother of SF; the mother of MB; and, the wife and father of JC.
ST’s parents gave evidence that ST had never mentioned anything untoward occurring at the dentist prior to their making statements to police in 2015 and 2016.
MB’s mother said that at some point in 2014, she spoke to her son and as a result of this she made a statement to police. She had included in her statement the exact words that she could recall MB said to her which were, “I can remember going there and there was a mat on the floor…and I remember he was touching me on my legs and body like a massage.”^[76]
76. Tcpt, 4 September 2017, p 946(38-45).
BH, the mother of OW, gave evidence that her son told her about 20 years later what had occurred at his first appointment with the appellant but he did not provide any details.
In cross-examination, she confirmed that OW had not said anything to her about his initial visit to the appellant, apart from when OW said to her at some time after his first session that the appellant had stroked his back. She could not recall his exact words, but her impression was that his back was stroked or massaged. She did not agree that it was not a total surprise that OW did not go in for a second session, but instead ran off. She said it was “a total surprise”.^[77]
77. Tcpt, 5 September 2017, p 1099(37).
JF, the father of SF, said that his memory was not good at the time he was giving evidence. He never spoke to either of his sons about the appellant.
DF, the mother of SF, gave evidence that she did not know anything about hypnotherapy when her sons were attending upon the appellant. She did not speak to either of her sons prior to making her statement to police in December 2014.
PF, the brother of SF, said that his parents had arranged for him to see the appellant for hypnotherapy to help him settle down a bit, make him sleep better and make needles easier. He had about four sessions during which the appellant counted from one to 10 in order to get him to calm down and close his eyes, to “get you to go into a sort of hypnosis sort of thing”.^[78] He closed his eyes. He recalled that as soon as the appellant touched his feet, he was “touchy, nervous”.^[79] The massage went from his feet to below his knees, and then he rolled over and the appellant massaged his shoulders, trying to get him to relax. He could not recall being massaged in any other areas. At the end, the appellant counted from 10 to 1. PF said he did not feel as though he was hypnotised.
78. Tcpt, 1 September 2017, p 930(33-34).
79. Tcpt, 1 September 2017, p 930(7).

The Crown submitted that JW’s evidence was cogent and consistent with him truthfully recalling traumatic events as an adult that had in fact occurred many years before.
As to the tendency evidence, the Crown referred to the trial judge’s “overly favourable” direction on the standard of proof, in view of the High Court’s comments subsequently made in The Queen v Bauer.^[148]
148. (2018) 266 CLR 56; [2018] HCA 40.
In replying to the appellant’s argument that the tendency evidence provided little support for the allegations made by PW and JW of masturbation, digital penetration and, in the case of JW only, fellatio, the Crown contended that the jury could reasonably have concluded that both PW and JW gave honest and accurate evidence of their experiences during massages up to and including the point where the appellant fondled the genitals of both. In response to the appellant’s contention that the more serious allegations against him by the brothers were either or a combination of confabulation, the Crown noted that it was not suggested to either PW or JW in cross-examination that the allegations made by each of them were the product of concoction. Furthermore, both PW and JW gave evidence that they had not discussed the details with each other of what happened to them.
A further submission was that the appellant’s argument of the tendency evidence, disregarded the significance of the tendency evidence of PW and JW.
To the extent that the appellant relied on asserted inconsistencies between the evidence of PW and JW and their mother EW, the Crown noted various respects in which EW’s evidence was incomplete. In oral submissions, the Crown referred to EW’s evidence as being “somewhat vague” which the Crown said was understandable because from her perspective there was no suspicion of wrongdoing. The Crown pointed out that EW’s evidence was fairly brief and given in general terms, which stood in stark detail to the very lengthy and detailed evidence of her sons.
The Crown also referred to circumstantial evidence tending to support the evidence of PW and JW that there was a relationship between the appellant and C.

Legal Principle

The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen^[149] as follows:
149. (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14].

“The task of the Court of Criminal Appeal
[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant’s police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”” (footnotes omitted; emphasis in original)

In R v Baden-Clay,^[150] the High Court (French CJ, Kiefel, Bell and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact:

“The whole of the evidence
The role of the jury
[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.” (footnotes omitted; emphasis in original)
150. (2016) 258 CLR 308; [2016] HCA 35.

More recently in Pell v The Queen,^[151] the High Court (Kiefel CJ, Bell, Gageler, Keane, Wettle, Gordon and Edelman JJ) made the following observations concerning the jury’s advantage in seeing and hearing witnesses at [38]-[39]:

“[38] It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnotes omitted)
151. (2020) 268 CLR 123; [2020] HCA 12.

The High Court went on to say at [42]-[45]:

“[42] As Weinberg JA noted, defence counsel’s choice to employ the language of impossibility in his closing address risked setting a forensic hurdle that the defence did not need to overcome. Regardless of counsel’s rhetorical flourish, the issue was whether the prosecution had excluded the reasonable possibility that the applicant did not commit the offence/s.
[43] At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing “the unreasonableness ground” was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
“whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

[44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
“But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.” (footnote omitted; emphasis in original)

45 As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.” (footnotes omitted)

Consideration

In considering an unreasonable verdict ground, this Court is required to review the whole of the evidence which includes the appellant’s replies in the recorded conversation “Did I?” “Was I?”
It is sufficient to state, as the case presently stands, no adverse inference can be drawn against the appellant for those answers which cannot be used as a reason for findings of guilt.
During this lengthy trial, the jury had the opportunity of seeing and hearing many witnesses. PW and JW each gave evidence over seven days. The cross-examination of each of these complainants lasted four days. The appellant was in the witness box for five days including two days of cross-examination.
In these circumstances, great weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the appellant in respect of counts 1 to 5, 9 to 12, 15, and 18 to 21.
Notwithstanding the jury’s assessment that the evidence of PW and JW was honest and reliable, the question remains whether there are as the appellant contends “inconsistencies, discrepancies and inadequacies” upon an examination of the record, which leads to the conclusion that the jury, acting rationally ought to have entertained a reasonable doubt as to the appellant’s guilt.

PW

One of the appellant’s arguments of the implausibility of PW’s evidence is based on the frequency of PW’s assertions of sexual assault. PW gave evidence in cross-examination that C committed 100 assaults against him and the appellant committed about 100 assaults against him. The appellant’s contention was that not only was the frequency of the assaults implausible but it was unlikely with the frequency of that abuse and the attendances at the surgery that PW’s presence at the surgery was not confirmed by staff or the appellant’s family. Although there is some force in these arguments, upon my review of the whole of PW’s evidence, there were, as the Crown contends, no discrepancies or inconsistencies in PW’s evidence of the sexual assaults that founded the particular counts of the indictment.
The principal thrust of the extensive cross-examination of PW by the appellant’s trial counsel was on issues such as the sexual abuse by C and the location and layout of the appellant’s surgery. Particular criticism in this appeal has been directed at PW’s initial identification of the surgery being at 101 Barney Street and not 119 Barney Street in November 2013 when he made a statement to police.
At that time, he signed a photograph on which was written “101? Barney Street, Armidale…Former location of [the appellant’s] Dental Surgery”. This photograph became Exhibit B in the trial. He also sketched a floor plan of the appellant’s surgery which he provided to police above the words “101? Barney Street…[the appellant’s] Dental Surgery”. This sketch became Exhibit 4. The appellant submitted that it is difficult to accept that PW failed to remember the location of the surgery.
In cross-examination, PW accepted that his estimation in 2013 of the surgery being at 101 Barney Street was incorrect. In further cross-examination, PW said that he had since had a “number of memory triggers”, including the death of a close childhood friend, which caused him to realise that the surgery could not be in the same block as Mozeley’s (Tennis Centre). It was during the reminiscences following the death of his childhood friend, who lived at 89 Barney Street, that PW said it became apparent to him that the appellant’s surgery was not on the same block. His evidence in chief included his confusion by the changes that occurred in the area when viewing Google maps when he had cited the surgery as being one block down from the actual site. Exhibit D shows the relative proximity between 101 and 119 Barney Street.
Another aspect of the appellant’s argument of the implausibility of PW’s evidence was his correct identification of the location of C’s day surgery at 117 Barney Street in his first police statement whereas he had been unable to correctly identify the dental surgery. The appellant argued PW’s explanation that he did not recall the premises being side by side because the abuse had happened in separate premises at separate times and that there was no direct connectivity between the two premises should not be accepted.
PW made a statement to police in 2013 about assaults that he alleged occurred between January 1981 and March 1984. It is evident that since the time of the alleged offences, there had been significant redevelopment in the Barney Street area. The surgery had been sold by the appellant in 1988 or 1989.
In my view, it was open to the jury to accept PW’s evidence of initial confusion about the location of the dental surgery and his subsequent realisation that the surgery was not on the same block as the house in which his childhood friend had lived during his reminiscences following his friend’s death. Furthermore, it was open to the jury to accept PW’s explanation for his failure to recall that C’s clinic was next door to the surgery.
The appellant raised the lack of evidence in support of PW’s evidence of the complaints he made to Bishop Kennedy, Father O’Brien and the police when he was in Year 11 and referred to Father O’Brien’s evidence which was submitted to be a denial of those complaints having been made.
PW’s evidence of complaint when he was at school went beyond what was said to the Catholic clergy and police in Year 11. He said when he was in Year 12, he attempted to report the matter at Armidale police station.
Although there are some differences in the recollections of PW and SR about their conversation in 1984 or 1985, it is not without significance that SR recalled PW telling him of his attempts to complain to police. In his evidence in chief, SR said:

“Yes. He told me he’d been sexually abused as a child, or as an early teenager, and – by [the appellant], and that he’d been to the police to complain about it, and he’d basically been dismissed by the police, and that – he was very upset by that, and that’s why he, I think, he told me about it.”^[152]
152. Tcpt, 6 September 2017, p 1169(40-47).

In cross-examination, SR described PW as being “quite overwhelmed by the police not taking him seriously”.^[153]
153. Tcpt, 6 September 2017, p 1172(38).
It was open to the jury to be unimpressed by the evidence of Father O’Brien. In paragraph 13 of his statement, he had referred to his lack of recollection, having “blocked this out” and “unconsciously, it’s gone from my memory because of my contact with the W… family in the past”.^[154] Whilst he did not give his age in evidence, he told the jury that he had been ordained as a priest in 1961. Father O’Brien was an elderly person when he gave evidence. In my opinion, it was open to the jury to accept the evidence of the complaints that PW made of the appellant’s sexual abuse.
154. Tcpt, 13 September 2017, p 1487(46-48).
I propose to deal with the inconsistency between the evidence of EW and her sons as to how the boys travelled to the surgery. EW testified that after JW’s first appointment, the boys would ride their bikes together after school to the surgery.
EW said that she didn’t attend any appointments with PW. It was PW’s testimony that for the first appointment, his mother drove him to surgery and after that, he rode his bike. JW gave evidence of his mother and father dropping him off at the surgery and recalled travelling on his bike to other appointments. Neither PW nor JW were challenged in cross-examination on this issue. PW and JW were not asked by the appellant’s trial counsel whether they rode on their bikes together to the surgery. Furthermore, they were not cross-examined on whether they attended the appellant’s appointments either together or separately.
EW was 81 years old at the time she gave her evidence. She had no concerns about her sons’ attendances at the surgery until she had a conversation with PW’s former wife. The members of the jury were entitled to reject her evidence and prefer the consistent testimony of her sons on this topic.
The appellant’s submission that the evidence of PW and JW as to PW’s sexual abuse of JW is inconsistent is undoubtedly correct. The differences in their evidence on this topic include the number of occasions of sexual abuse, the timeline of that abuse, and the use of hypnosis. The ability of trial counsel to explore those differences was confined by the trial judge’s pre-trial judgment that “the specific type of abuse” could not be explored following argument concerning s 293 of the Criminal Procedure Act. Neither party contends that her Honour’s ruling was incorrect; however, PW’s evidence of what occurred in the bedroom he shared with JW was not put to JW in cross-examination.
The impact that those differences had on the assessment of the honesty and reliability of the brothers’ testimony was a matter for the jury. Notwithstanding these difficulties their evidence on this topic had the capacity to support the evidence of sexual abuse by C and to reject the suggestion of collusion between them.
One matter that the appellant raised in suggesting the likelihood of discussions between PW, JW, and EW was the incorrect identification by all three of the location of the dental surgery. On this topic, the brothers’ evidence differed. JW recalled a discussion in about 2012 and 2013 that he had a conversation with PW during which PW “pointed to the back of one of the buildings overlooking the tennis courts and … identified that building as the dental surgery”.^[155] PW had no recollection of discussing with his brother the location of the surgery.^[156] In further cross-examination, he said that he did not have a conversation with PW as to where the dentist was.
155. Tcpt, 29 August 2017, p 656(40-47).
156. Tcpt, 17 August 2017, p 228(43-45).

It was a matter for the members of the jury as to what they made of this evidence. There is no other evidence that suggests the testimony of the brothers was the product of collusion. Indeed, one of the appellant’s contentions is that the absence of corroboration between the accounts of PW and JW contributes to the implausibility and unreliability of their evidence.
Although I agree that the differences in the evidence of PW and JW are not trivial, I do not consider by themselves they are such that the jury, acting rationally, ought to have entertained a reasonable doubt.
Turning to the arguments concerning tendency, the trial judge applied the criminal standard of proof to the evidence of the uncharged acts of the tendency witnesses as well as the complainants. Her Honour directed the jury before Bauer and faithfully followed what was considered to be the law in New South Wales that the correct standard of proof of tendency evidence in sexual offences was beyond reasonable doubt.
On my reading of the record, SF, ST, and the tendency witnesses were impressive. It is notable that these men were prepared to give evidence about the appellant’s sexual misconduct that was occasioned to them more than 30 years beforehand.
Putting aside for the moment JW’s evidence, I agree with the appellant’s submission that it was relevant for the jury to consider that the allegations of sexual misconduct by PW and JW differed from those made by SF, ST, and the tendency witnesses. However, the appellant’s grounds of appeal do not complain that the trial judge misdirected the jury on this issue.
Although these witnesses did not give evidence of acts amounting to sexual intercourse, that does not mean that in considering individually their evidence, the jury could not find that the appellant had a tendency to have a sexual interest in young males and had a tendency to act on that state of mind by exploiting his position as a dentist for his own sexual purposes: to display a sexual interest in teenage boys and pre-teenage boys; to use hypnotherapy as “a tool” to engage in inappropriate touching; and, to indecently assault them.
It was open to the jury to be satisfied that SF, ST, and each of the tendency witnesses gave honest and reliable evidence. Furthermore, when considering each charge separately (including the allegations by PW and JW of sexual intercourse), it was open to the jury to conclude that the evidence of SF, ST, and the tendency witnesses made it more likely that the appellant had committed the offences against PW and JW for which he stood trial.
This evidence stood in stark contrast with the appellant’s testimony that he did not sexually assault any of the people who gave evidence and provides significant support for the jury’s verdicts.
Another matter that was raised in written submissions but not put with much force in oral submissions by Mr Game SC was the jury’s failure to convict on counts 6 to 8. The jury was discharged on these counts as the jurors were unable to reach unanimous or majority verdicts.
The extent to which a failure to reach a verdict may be relied upon to demonstrate that a jury’s verdict on another count is unreasonable has been the subject of differences of judicial opinion.^[157]
157. Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [232]; R v Dal [2005] QCA 281 at [2], [5]-[6], [21], [23], [32]-[33]; Pillay v R (2014) 43 VR 327; [2014] VSCA 249 at [30].
In Daaboul v R^[158], after an extensive review of the authorities on this issue, Bathurst CJ concluded at [248]:

“[248] Although it is not necessary to finally determine the issue in the present case, it seems to me that it is possible for the question of inconsistent verdicts to arise in circumstances where there is a conviction on one charge and a failure to reach agreement on another where the difference is incapable of any logical explanation”.
158. (2019) 100 NSWLR 682; [2019] NSWCCA 191.

In the present case, counts 6 to 8 included the presence and participation of C. C was not called by the Crown. The appellant’s trial counsel in his closing address placed emphasis on the Crown’s failure to call C. The trial judge had instructed the jury that where there was no explanation for a witness not being called they could take “the fact that there was no evidence from that witness into account” in deciding “whether the Crown has proven its case”.^[159] In my opinion, the absence of C’s testimony is a logical explanation of the jury’s inability to reach agreement on counts 6 to 8.

JW

159. Tcpt, 3 October 2017, p 128-129.

The appellant raised internal inconsistencies in JW’s evidence^[160] and his admitted problems with memory and disassociation,^[161] which the appellant contended, materially detracted from the reliability of his evidence.
160. At [320] above.
161. At [322]-[323] above.
There is no doubt that JW had been mentally unwell. Dr Edirisooriya made a “differential diagnosis” of paranoid schizophrenia and schizoaffective disorder when she first saw JW in August 2013. Dr Roberts expressed the opinion that JW was very unwell and it would need to be established that JW’s evidence was “not the product of a delusional belief system as opposed to evidence arising from matters of fact”. His evidence included his opinion that the impact of “dissociative memories” and “normal memories” could potentially give rise to “confusion in regard to matters of fact”.^[162]
162. Tcpt, 15 September 2017, p 1605(23-34).
In cross-examination, Dr Roberts accepted that a person “who’s subjected to the most severe trauma, torture and pain, and deprivation” can “undergo dissociation for a period of time”.^[163]
163. Tcpt, 18 September 2017, p 1691(40-45).
Notwithstanding these difficulties, there is significant support for the jury’s assessment of the honesty and reliability of JW’s evidence.
Upon my review of the whole of JW’s evidence, there are no discrepancies or inconsistencies in JW’s evidence of the sexual assaults that founded the particular counts on the indictment. In submissions, the appellant made reference to JW’s evidence about the watch which the appellant contended JW was unable to describe until his cross-examination.^[164]
164. At [320(4)] above.
I am unable to agree with the appellant’s contention as JW in his evidence in chief said:^[165]

“He then took a metal watch, silver-banded metal watch, held it up in front of me and proceeded to count down”.
165. Tcpt, 22 August 2017, p 427(43-45).

The appellant drew attention to JW’s written submission to the Royal Commission that “When [he] was eight years old the fog settled in and memory became hazy for eight years and beyond”^[166] and his evidence that he no longer maintained that position. When given the opportunity by the trial judge to clarify his evidence. JW said:

“Yes, well – as I’ve stated – the – I – abuse first came into my life – at least in a physical sense – when I was eight years old. When I’m talking about the fog and hazy – those – those words, that element – I believe – came in during the anal phase I spoke about with the dentist [the appellant] and through clarification that would make me nine years old, I had no intention to deceive the royal commission with my statement – there is no deception there. However with issues of hypnosis and consciousness that Mr Taylor has spoken about, time and timing is a very confusing topic for me – I get very confused by time and timing and – and give – I’m sure you have noticed that through my evidence – it is not me being intentionally deceptive or trying to be dishonest to the royal commission or to this Court.”^[167]
166. Tcpt, 24 August 2017, p 526(31-32).
167. Tcpt, 24 August 2017, p 527(15-25).

When following further cross-examination on the Royal Commission submission, JW gave the following evidence:

“The entire – the entire section, which is an extensive section of this document, clearly sets out that these are feelings, including each heading, which talks about feelings, and yes, these are things that I have felt at that time.”^[168]
168. Tcpt, 24 August 2017, p 556(5-10).

In my view, it was open to the members of the jury to accept JW’s evidence as to the differences between his Royal Commission submission and his evidence before them.
One of the appellant’s submissions was that it was implausible that JW did not make a contemporaneous complaint to his parents of the appellant’s abuse. In my opinion, it was open to the jury to accept JW’s evidence that he did not tell his parents about what the appellant had done to him out of fear.
Putting aside for a moment JW’s evidence of his complaint to “Mel” when he was 16 years old as Mel was not called to give evidence, JW, AW and TS testified about conversations with JW which included abuse by the appellant. TS recalled JW telling her that the appellant would perform oral sex on him. I do not agree with the appellant’s contention that the disclosures offered minimal support to JW’s credibility as they were expressed generally. Furthermore, it was open to the jury, bearing in mind the trial judge’s direction about witnesses who had not been called by the Crown, to accept JW’s evidence of his complaint to “Mel”.
As previously explained,^[169] it was open to the jury to conclude that the evidence of SF, ST, and the tendency witnesses made it more likely that the appellant had committed the offences against PW and JW for which he stood trial.
169. At [389] above.
There were undoubtedly difficulties with the evidence of PW and JW. However, on the whole of the evidence, these difficulties were not such that they ought to have caused the jury, acting rationally, to entertain a doubt as to the appellant’s guilt of the counts on the indictment which concerned PW and JW.
I would dismiss Ground 2 of the appeal.

Orders

For these reasons, I propose the following orders:

Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of Ground 1.

Allow the appeal.

Quash the convictions and sentence.

Order that there be a re-trial of the appellant.

Remit the matter for mention at the District Court at Sydney at 9:30am on 2 July 2021.

IERACE J: I also agree with the judgment of Price J and the orders he proposes.

**********

Endnotes

Amendments

30 May 2025 - Name amended in [249]

Decision last updated: 30 May 2025

Medium Neutral Citation:	R v WS [2021] NSWCCA 124
Hearing dates:	22 March 2021
Date of orders:	21 June 2021
Decision date:	21 June 2021
Before:	Hoeben CJ at CL at [1]; Price J at [2]; Ierace J at [410]
Decision:	(1) Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of Ground 1. (2) Allow the appeal. (3) Quash the convictions and sentence. (4) Order that there be a re-trial of the appellant. (5) Remit the matter for mention at the District Court at Sydney at 9:30am on 2 July 2021.
Catchwords:	CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable
Legislation Cited:	Crimes Act 1900 (NSW), ss 61D(1), 81 Criminal Appeal Rules (NSW), r 4 Criminal Code Act 1899 (QLD), 23(1)(b) Criminal Procedure Act 1986 (NSW), s 293 Evidence Act 1995 (NSW), s 97
Cases Cited:	Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 DC v R [2019] NSWCCA 234 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 IW v R [2019] NSWCCA 311 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Pillay v R (2014) 43 VR 327; [2014] VSCA 249 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Dal [2005] QCA 281 Roos v R [2019] NSWCCA 67 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Texts Cited:	Nil
Category:	Principal judgment
Parties:	WS (Appellant) Regina (Respondent)
Representation:	Counsel: T Game SC (Appellant) A Cook (Appellant) G Newton (Respondent) Solicitors: APJ Law (Appellant) Solicitor for the Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2014/280784; 2014/361895; 2015/165571
Publication restriction:	Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons referred to in this judgment by the letters PW, JW, SF, ST, JC, OW, CW, and MR. The following further orders were made: 1 Orders that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 hereafter referred to as the CSNPO Act on the grounds specified in s 81A of the CSNPO Act there be no publication of information tending to reveal the identity of C in connection with the proceedings to which have been referred. 2 Orders that order 1 shall apply throughout the Commonwealth of Australia. 3 The Court orders that order 1 shall apply until the conclusion of any criminal proceedings brought against C as a result of police investigation. 4 Order that New South Wales Commissioner of Police will be given three days’ notice of any application to review these orders. The Court notes: (1) The confidential affidavit of XXX sworn on 19 March 2021 is returned to the Crown Solicitor’s Office; and (2) The Crown Solicitor give an undertaking to make that affidavit available to this Court or any other court having jurisdiction.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 October 2017 Before: Syme DCJ File Number(s): 2014/280784; 2014/361895; 2015/165571