Spurritt v The Queen
[2021] VSCA 7
•5 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0044
| TREVOR SPURRITT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 January 2021 |
| DATE OF JUDGMENT: | 5 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 7 |
| JUDGMENT APPEALED FROM: | [2020] VCC 66 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Sentence and conviction – Applicant convicted of 9 charges of indecent assault of a male person under 16 – Total effective sentence of 5 years 8 months’ imprisonment – Non-parole period of 3 years – Whether guilty verdicts unsafe and unsatisfactory – Whether miscarriage of justice due to volume of allegations in tendency evidence causing the jury’s consideration of individual charges to be diverted – Whether miscarriage of justice caused by comments made by trial judge in charge to the jury – Whether sentence manifestly excessive – Appeal allowed – Convictions quashed – Judgments of acquittal entered – Criminal Procedure Act 2009 s 276, Evidence Act 2008 s 38, McKell v The Queen (2019) 264 CLR 307 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC with Mr P Kouris | Falcone & Adams Lawyers |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
NIALL JA:
The applicant was charged on indictment with 12 charges of indecent assault of a male person under the age of 16 years. He was convicted, by the jury empanelled on his trial, on nine charges (charges 1 to 9), and was acquitted, by direction of the judge, on the remaining charges (charges 10 to 12). After a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 5 years and 8 months’ imprisonment with a non-parole period of 3 years. The applicant seeks leave to appeal against his conviction and against his sentence.
The grounds upon which the applicant seeks leave to appeal against conviction are as follows:
1.The guilty verdicts of the jury on charges 8 and 9 are unsafe and unsatisfactory.
2.The guilty verdict of the jury on charge 1 is unsafe and unsatisfactory.
3.The guilty verdicts on charges 2, 3 and 4 are unsafe and unsatisfactory.
4.The guilty verdicts on charges 5, 6 and 7 are unsafe and unsatisfactory.
5.A substantial miscarriage of justice has occurred in circumstances where there is unacceptable risk that the jury’s consideration of the individual charges has been diverted by the number of allegations made against the Applicant.
6.A substantial miscarriage of justice has occurred as a result of the Learned Trial Judge making a series of comments in the course of the charge about the Prosecution case or the evidence — in circumstances where such comments had not been made by the Learned Prosecutor.
The applicant seeks leave to appeal against sentence on the ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
Summary of the circumstances
The applicant was born in 1943. He commenced employment as a teacher at Camberwell Grammar School in 1965, and he taught at that school in a full-time capacity until 1999. Each of the complainants were students at the school. The offending was alleged to have occurred between 1969 and 1971 in the classroom, in the context of after school activity, and on school camps attended by the particular complainant.
The complainant in respect of charge 1 was Patrick Hogarth (‘Hogarth’). It was alleged that when Hogarth was in either Grade 6 (in 1969), or Year 7 (in 1970), or Year 8 (in 1971), the applicant assaulted him at a school camp in Bambara. Hogarth gave evidence that one evening the applicant, having entered the hut in which he was sleeping, put his hand inside his pyjama top, and touched the lower part of his torso. The touching ceased when Hogarth rolled over and faced away from the applicant.
The complainant in respect of charges 2 to 4 was Nicholas Ward (‘Ward’). In his evidence, Ward alleged that the first time he was sexually assaulted by the applicant was in a class during his Form 1 year (in 1970). During class time, the applicant called Ward to his desk. While Ward was standing next to him, the applicant put his arm around Ward’s waist and put his hand inside his pocket, touching his penis. That incident was the subject of charge 2.
In respect of charge 3, Ward gave evidence that while attending a school camp in Frankston, the applicant came into his hut at night, put his hand inside his clothing whilst Ward was in a top bunk bed, and stroked his penis until he ejaculated.
The incident, that was the subject of charge 4, was alleged to have occurred at another school camp at Bambara. On that occasion, the applicant again entered Ward’s hut at night, placed his hand inside Ward’s clothing and masturbated his penis, causing him to ejaculate.
The complainant in respect of charges 5, 6 and 7 was Alex Rofe (‘Rofe’). The incident, that was the subject of charge 5, was alleged to have occurred in the course of a school camp in Frankston in 1970 when Rofe was in Form 1. At the time of the incident, Rofe was sitting on his own in the mess hut of the camp. He gave evidence that the applicant entered the hall, sat next to him, and placed his hand inside his shorts, touching his bare buttocks.
The incident, that was the subject of charge 6, was alleged to have occurred in the context of a school play rehearsal when Rofe was in an area under the stage in company with some other students. Rofe gave evidence that the applicant took him from that area into a classroom and twice struck his buttocks with a wooden compass in an act of discipline. The applicant then put his hand inside Rofe’s trousers and rubbed his buttocks.
Charge 7 was alleged to have also involved the same use of the wooden compass. Rofe gave evidence that on another occasion, the applicant physically struck him once on the buttocks with the compass, and then put his hand down inside his trousers and rubbed his buttocks. Rofe also gave evidence of an uncharged act, which was alleged to have occurred in the course of a visit to Cradle Mountain in Tasmania in 1971. On that occasion, the applicant removed Rofe from the group of students, put his arm around Rofe, placed his hand down Rofe’s shorts, and touched him on the buttocks.
Charges 8 and 9 involved the complainant Oliver Wells (‘Wells’). In respect of charge 8, Wells gave evidence that in the course of a lesson in class in either 1970 or 1971 he was seated next to another student, Angus Mair, in a two-seater desk. Wells gave evidence that the applicant, who was teaching the class, sat next to him, placed his hand between his thighs, and moved his hand up his leg, until he touched Wells’ penis on the outside of his trousers.
The incident, that was the subject of charge 9, was said to have occurred in the same classroom setting and involved the same type of touching. On that occasion, Wells was sitting alone at his desk when the applicant sat down next to him and touched him in the same manner.
Richard Tucker (‘Tucker’) was the complainant in respect of charges 10 to 12, on which the applicant was acquitted by direction. Tucker gave evidence that in 1970 or 1971, at almost each class in which the applicant taught him, the applicant would walk to where Tucker was sitting at his desk, bend over, and rub his lips up and down Tucker’s neck, while putting his hands inside his shirt. On some occasions, the applicant also placed his hand inside the pocket of Tucker’s shorts.
Although charges 10 to 12 were the subject of directed acquittals, the evidence of Tucker was left to the jury as tendency evidence. In addition, the jury was directed that, in considering each charge, it was entitled to take into account the evidence given by the complainants in respect of the other charges, as evidence of a tendency by the applicant to have a sexual interest in young boys aged between eleven and fifteen years, and a willingness to act on that interest. Accordingly, in determining each of grounds 1 to 4, it is necessary to take into account the tendency evidence that was relied on by the prosecution.
The trial of the charges initially commenced in August 2019. After the complainants Hogarth (charge 1) and Ward (charges 2 to 4) gave evidence, the trial judge discharged the jury as a result of a particular question asked by the jury in respect of the evidence of Ward. The trial recommenced one week later before a different jury. In that trial, the pre-recorded evidence of Hogarth and Ward was played to the jury.
Summary of evidence
Hogarth (the complainant in respect of charge 1) gave evidence that he commenced attending Camberwell Grammar School in Grade 6 in 1969. He remained at the school until Form 5 (that is, the equivalent of Year 11). During those years, he attended a school camp at Bambara, which is located near Broadford. He said that he came into contact with the applicant at that camp in either 1969 or 1970. Hogarth was unable to recall whether the applicant taught him at school. He gave evidence that the incident, that was the subject of charge 1, occurred one night in the cabin in which he was staying. Hogarth was then in the lower bunk. After lights had been turned out, Hogarth saw the applicant come in through the doorway and walk over to his bed. He said that the applicant then crouched next to him, put his hand on his chest, and slowly moved his hand towards Hogarth’s private parts. He said that the applicant’s hand got to his ‘belly button’. In response, Hogarth rolled towards the wall and pretended to be asleep. Hogarth was not certain whether the applicant’s hand went under his pyjamas, but he believed that it was inside the pyjamas. The touching ceased when Hogarth rolled towards the wall.
In cross-examination, Hogarth confirmed that the incident occurred while he was in either Grade 6 (in 1969) or Year 7 (in 1970). He was unable to respond to the proposition, put to him in cross-examination, that there was no week-long camp for the whole of Grade 6 in Bambara in 1969, and that the only camps at Bambara for Grade 6 in that year were voluntary weekend camps. He agreed that Mr Redmond was his teacher in Grade 6, but he could not recall whether the applicant had anything to do with Grade 6 in that year. When it was put to him that the incident could not have occurred when Hogarth was in Grade 6 in 1969, he responded that it might have occurred when he was in Year 7 (in 1970). In answer to further questions, he said that it might have been in 1969, 1970 or 1971. In that respect, he agreed that, in the statement he made to the police, he said ‘I distinctly remember being on camp when I was in Grade 6 or [Year 7]. I think it was Grade 6 but I’m not positive.’ Hogarth said that he may have made an error in his statement by not nominating 1971 also. It was then put to Hogarth in cross-examination that there was no week-long camp at Bambara for Year 7 in 1970, to which Hogarth responded ‘I can’t remember’.
Hogarth was also unable to recollect whether there were voluntary weekend camps in Bambara when he was in Year 7 in 1970. When it was put to him that the applicant was not at any camp in Bambara in Year 7 in 1970, he responded that it might have occurred in 1971, when he was in Year 8. He was unable to comment on the question put to him that the applicant was not a Year 8 teacher in 1971 and did not go on any camp to Bambara in that year. When pressed on that issue, Hogarth responded ‘And what about Mr Bence then?’ He said that it was clear in his mind that both the applicant and Bence were at camps that he went to. When asked whether he was saying that Bence had interfered with him, he responded that he had been humiliated by Bence who had required him to stand naked while everyone came into breakfast.
Ward (the complainant in respect of charges 2 to 4) gave evidence that he commenced at Camberwell Grammar in 1970 in Form 1 (Year 7). The incident, that was the subject of charge 2, took place shortly after Ward had commenced at the school. He said that it occurred in the classroom when he went up to the applicant’s desk. At the time, Ward was standing on the right-hand side of the applicant who was then seated at his desk marking papers. There were other students in the classroom. While Ward stood next to him, the applicant put his right hand around Ward’s back, slipped it into his pocket, and stroked his penis. Ward did not say anything, but he tried to move away. He said that at the time he was in disbelief as to what had occurred. He did not tell anyone about the incident until many years later when he told his wife.
Ward then gave evidence as to two incidents, which were the subject of charges 3 and 4 respectively. The first incident (which was the subject of charge 4) took place at the school camp at Bambara in 1970. He could not recollect if it was a weekend camp or a camp that was for one week. The incident occurred when the applicant entered his hut at night. Ward was in the top bunk bed. When the applicant reached Ward’s bed, he put his hand into Ward’s pants, started stroking his leg, and then stroked his penis. Although the lights were out, there was some outside lighting and Ward was also able to identify the applicant from his voice. As a result of the touching, Ward ejaculated, which he said was his first sexual experience. After he did so, the applicant departed and Ward rolled over and went to sleep.
Ward gave evidence that the incident, that was the subject of charge 3, occurred in 1970 at a CEBS (Church of England Boys’ Society) camp in Frankston attended by all of the Year 7 students. On that occasion, the applicant again entered Ward’s hut at night while Ward was on the top bunk. The applicant started to touch Ward’s thigh, and then he stroked his penis until he ejaculated.
In cross-examination, Ward stated that initially he loved going to school, and he loved being taught by the applicant. He said that after the first incident, everything fell apart. He did not feel safe, and he started to use alcohol, and not going to school and getting into trouble. He agreed that at the end of Year 8, he was awarded a government scholarship for academic excellence, but he said that was due to his ‘natural ability’. He also agreed that he was doing well at sport in Year 8, and that he was then participating in hockey and playing the violin.
Ward stated that the first incident involving the applicant was the incident that took place in the classroom, that the second incident occurred at the Bambara camp and the third incident at Frankston. It was then put to Ward that the Frankston camp took place shortly after the commencement of the school year in 1970, at a time which must have pre-dated the first incident. Ward was unable to recall whether that was correct or not.
Ward stated that he thought that he was being taught mathematics by the applicant at the time of the incident that was the subject of charge 2. He agreed that, at the committal proceeding, he could not recall whether the applicant taught him mathematics. He agreed that at the time of the incident, the classroom was full of students. He thought that at that time he was doing the multiplication tables. He was unable to recall why he was at the front of the class or who else was in the class. He said that he remembered looking out and seeing all the students in the class. However, he agreed that in the committal proceeding, he could not recall seeing a room full of students, and he said that he did not have a ‘mental picture’ of that. Counsel then put to Ward a diagram of the classroom that was prepared by the applicant and subsequently tendered in evidence (Ex 5). Ward stated that he did not recall whether the teacher’s desk was next to the wall, so that it would have been very difficult for him to stand on the right-hand side of the applicant. He said ‘I just remembered being on his right-hand side and what actually happened for me.’ He said that he did not believe that his pocket was too small for the applicant to put his hand inside it, because he (Ward) was very slim at the time.
In further cross-examination, Ward said that it was in 2011 that the memories of what had occurred to him started to come back to him. He said that he had buried the memories and he only recalled them because his son was then starting secondary school. He agreed that at the time he was living in England and he was then a functioning alcoholic. He started drinking a lot of alcohol when his memories came back to him. He said that he then started to acknowledge his memories of what had occurred. He said that they had been in the back of his mind and he had kept them there. He had always known them but he had not acknowledged them. He agreed that in September 2014, when he was drinking heavily, he told the informant that his memories were intensified.
Ward stated that he could not remember how many times the same type of incident occurred in which the applicant put his hand in his pocket and touched his penis in the classroom. He said that he knew it happened at least once.
Ward further agreed that the incident, that was the subject of charge 3, took place in a room full of other students. He said that the applicant could have been talking to the other boys in the room at the time the incident took place. He said that he was unable to observe any indication of how the applicant’s face was reacting during the incident. In that respect, he agreed that, in the second statement that he made to the police, he said that he recalled that the applicant had a ‘little smirk’ on his face. However, at the time of giving evidence, he could not remember that. He said that as part of the incident the applicant stroked his thigh. It was put to Ward that, in his two police statements and at the committal proceeding, he had never mentioned that the incident included the applicant stroking his thigh. He agreed that in his first statement to the police, he did not mention that he had ejaculated in the incident. He said that he was too embarrassed to mention it. Ward also stated that the applicant was talking to the other students in the room while he was masturbating him.
Ward agreed that in his first statement, he said that the incident, that was the subject of charge 4, took place while he was on a week-long camp at Bambara. He accepted that the week-long camp at Bambara was only available to students in Year 8 and not to students in Year 7. He agreed that he was never on a week-long camp with the applicant when he was in Year 8. He said that he must have been mistaken when he described the camp, which was the site of the incident, as being a week-long camp. He agreed that he used to dread seeing the applicant after he started to interfere with him in the classroom. However, when it was put to him that the last place he would want to be with the applicant was on a voluntary camp in Bambara, he said ‘It’s a little bit different when you’re a twelve year old’.
Rofe was the complainant in respect of charges 5, 6 and 7. He commenced as a student at Camberwell Grammar School in Grade 1 in 1963, and completed Form 6 (Year 12) in 1976. During that time, the applicant was not his teacher. However, the applicant was very well known to his family, because his parents had an active involvement in the school.
In 1970, when Rofe was in Form 1, he attended the CEBS camp in Frankston. The incident, that was the subject of charge 5, occurred late in the week. Rofe said that at that time he had run out of clean underwear, and he was wearing a pair of football shorts. On the day of the incident, he was not feeling well, and while the rest of his class was on a group activity, he obtained permission to remain in the mess hut. He said that while he was seated at the table in the mess hut, the applicant entered the hut, and sat next to him. While they were talking, the applicant put his right hand around him and inside the back of his football shorts, placing his hand over Rofe’s right buttock for about 20 seconds. The applicant then withdrew his hand and left.
Rofe said that the incident, that was the subject of charge 6, occurred in 1970 in the context of a production of a school play written by the applicant based on a book entitled ‘Hills End’. Rofe had a small role in that play. The incident occurred during a rehearsal in a dressing room area underneath the stage. At the time of the incident, a number of students, including Rofe, were in the area, as they were not required at that particular time for the rehearsal. While they were there, the applicant came in and was very angry with them. He dismissed the others who were there, and directed Rofe to follow him to a classroom which was about 100 to 150 metres away. As punishment, the applicant struck Rofe twice on his buttocks with an implement called a wooden compass. The applicant then pulled Rofe towards him, put his hand inside Rofe’s pants, and grabbed his buttocks for about 15 to 20 seconds.
The incident, that was the subject of charge 7, occurred in similar circumstances. Rofe said that, on that occasion, he was again singled out by the applicant, taken to the applicant’s room, and struck once with the compass. The applicant then placed his hand inside Rofe’s trousers in the centre of his buttocks.
Rofe also gave evidence of an uncharged act that occurred during an annual trip for Form 2 (Year 8) students to Cradle Mountain in December 1971. On that occasion, Rofe was ‘mucking around’ with other students. The applicant took him for a walk away from the group and they sat together on a pine log fence. The applicant told Rofe that he needed to calm down because he was getting too excited. While he was speaking to him, the applicant placed his hand inside Rofe’s trousers in the centre of his buttocks for about 15 to 20 seconds.
In cross-examination, counsel suggested to Rofe, but Rofe could not recall, that during the week at the Frankston camp, on each day, two classes would be held in the morning in the mess hut. Rofe said that, at the time of the incident that was the subject of charge 5, he was alone in the mess hut. He disputed the proposition that he would not have had the opportunity to be alone in the mess hut, because there would have been two classes being taught there at that time. He could not recall what activity the rest of his class was engaged in at that time. He agreed that in his police statement he said that his class was involved in a field activity. He said that he did not speak to any other students or any other person about the incident.
In respect of the second incident, that was the subject of charge 6, Rofe agreed that in fact he did not have a part in the play that was called ‘Hills End’ but said that he had a part in a different play entitled ‘A Small War’. He said that the applicant was a producer or director of that play. He agreed that there was a mid-week rehearsal for the play and also weekend rehearsals. He said that the incident, that was the subject of charge 6, did not occur during the final dress rehearsal, but at some point before that. He agreed that the area under the stage was only used ‘officially’ for the final dress rehearsal and on the nights of the production, but he said there was no reason during the other rehearsals that students could not access it. He said that after the incident, that was the subject of charge 6, he did not go back to the students with whom he had been associating and explain what had happened. He said that school had finished for the day, and it was not dark at the time of the incident.
Rofe was unable to recall the circumstances that were the lead-up to the incident that was the subject of charge 7. He said that he just remembered that the incident occurred and that it was similar to the previous one.
Rofe agreed that the Cradle Mountain camp was optional. However, he said that his two older brothers had previously been on that camp and there was an expectation from his parents that he would also participate in it. When he attended the camp, he thought that he would be able to avoid the applicant. He said that after the incident, he did not talk to anyone about it.
Wells (the complainant in respect of charges 8 and 9) attended Camberwell Grammar School between 1970 and 1975. In 1970 he was in Form 1 (Year 7). In his evidence, he stated that the applicant taught him mathematics in Form 1 and in the following year in Form 2. At that time, the students sat in two-seater desks. Wells gave evidence that during the classes, the applicant would sometimes come and sit very close to him, put his hands between his legs, and touch his penis. He said that that occurred on a number of occasions. At that time, Wells invariably sat next to his friend, Angus Mair.
Wells gave evidence concerning the incident that was the subject of charge 8. On that occasion, Angus Mair was sitting next to Wells on his right. The applicant sat on the edge of the seat, so that Wells had to move to his right to accommodate him. It was in that position that the applicant touched him in the manner that he described. On another occasion, in which Wells was sitting on his own, the applicant again sat on his left-hand side. That occasion was the subject of charge 9.
In cross-examination, Wells stated that when he was in Year 8, his form teacher was Mr Finlay. In his statement to police in December 2016, Wells said that the man, who was his form master in Year 8, was touching him inappropriately in class. In that statement, he said that the applicant was his form master, and (in cross-examination) he said that he had made a mistake in that respect. He said that he was being taught mathematics at the time that the applicant touched him inappropriately. He agreed that in the committal proceeding, he had said that the incident occurred during either a mathematics lesson or an English lesson. He agreed that the subject, that was being taught to him, could have been English, but in his recollection he was being taught mathematics.
Wells confirmed that, at the time of the incident, which was the subject of charge 8, he was sitting next to his friend, Angus Mair. When the applicant sat next to him, Wells had to move closer to Mair. He said that it was a ‘snug’ fit for the three of them. He said that the incident took between 10 seconds and a minute. In the course of it, Wells looked at Mair, and they both rolled their eyes at each other. At that point, the applicant had his hand on Wells’ thigh. In the committal proceeding, Wells agreed with the proposition that it seemed to him that Mair was aware of what was going on at that point. In cross-examination, he recalled that he spoke with Mair after the incident. In the committal proceeding, Wells agreed that it was a very significant event for him to be talking to Mair about it. In cross-examination, he agreed that Mair and he considered that it was not appropriate for a teacher to be putting his hand on his penis.
In cross-examination, Wells stated that Mair was also sitting next to him on a number of the other occasions on which the applicant touched him inappropriately. He was able to recall that there was one occasion when he was sitting alone, but that was quite uncommon. He said that he had discussed the applicant’s conduct with Mair.
Angus Mair gave evidence that he had commenced as a student at Camberwell Grammar School in Grade 2 in 1965 and left at the end of Form 5 (Year 11). In his evidence, he could not recall being taught by the applicant. He confirmed that he and Wells were friends at school and that they probably sat together in class.
In cross-examination, Angus Mair stated that he had never seen anyone touched inappropriately, or in an indecent manner, during his time as a student at Camberwell Grammar. When Mair made his police statement, he was able to recall the names of some of the teachers at Camberwell Grammar, but he was not able to recall the applicant. He said that during his years at school, he was a friend of Wells and that they mixed together socially.
Mair stated that he could not recall witnessing any incident in which a teacher placed his hand between the thighs of a boy and then placed his hand on the boy’s penis. He agreed that if something like that happened, it would have ‘stood out’ for him at the time. He had no recollection of ever discussing any such incident with a student at Camberwell Grammar, and he certainly had no recollection of discussing such an incident with Wells. Mair confirmed he had no recollection of seeing a teacher place his hand between Wells’ thighs and then on his penis.
As mentioned, Richard Tucker was the complainant in respect of the incidents that were the subject of charges 10 to 12, on which the applicant was acquitted by direction. Tucker was a student of Camberwell Grammar School in 1971 and 1972. In those years, he was in Forms 1 and 2 respectively. In 1972, the applicant was his mathematics teacher. Tucker gave evidence that during mathematics classes, the applicant would walk around the class checking the students’ work. He said that on several occasions, the applicant would come up behind him, on the pretence of checking his work, bend down, put his hands inside Tucker’s shirt, rub his hands up and down, and rub himself against his neck. On some occasions, the applicant would put his hand in Tucker’s pocket. He said that sometimes the applicant would rub his mouth or lips against his neck. Tucker stated that that conduct would occur about once each week, and on each occasion it lasted between 20 and 30 seconds.
In cross-examination, Tucker said that he was indecently assaulted by the applicant in either 1971 or 1972. He agreed that in his statement to police, he said that he was ‘pretty sure’ that it occurred in 1972. He rejected the proposition, put to him in cross-examination, that in 1972, the applicant did not teach mathematics to any Year 8 class. Tucker agreed that in his statement he had said that the conduct by the applicant, which he described, had occurred over the whole of 1972, and that in every mathematics class it was the same. He did not agree that at that time, mathematics was taught on a unit system, by which each unit was taught by a different teacher. When pressed on that matter, he stated that perhaps his memory was incorrect in recalling that the conduct was engaged in by the applicant over the whole year.
In cross-examination, Tucker also agreed that the conduct, which he had alleged against the applicant, occurred in circumstances in which he was surrounded by other students, and in circumstances where ‘everyone in the class’ would have been able to see what was going on. He agreed that everyone in the class would have been able to see the applicant undoing his buttons, putting his hands in his shirt and rubbing his lips up and down his neck. He said that that conduct by the applicant occurred on ‘pretty much every time’ the applicant taught him. He alleged that each incident occurred over a two or three minute period. He agreed that on many such occasions, someone would have been sitting next to him.
The informant, Detective Sergeant Tracey Van Wyngaarden, gave evidence in which she produced the record of interview that was conducted with the accused.
In cross-examination, Detective Van Wyngaarden stated that the Camberwell Grammar School diary for 1969 reflected that there was no week-long camp for Grade 6 students at Bambara. She confirmed that the 1970 and 1971 diaries reflected that there was no week-long Year 7 camp to Bambara during either of those years. She also acknowledged that the 1971 diary recorded that Ward was awarded a junior government scholarship in that year, which was awarded to the top one-third of the boys in Year 8.
Detective Van Wyngaarden was cross-examined about a series of communications that she had with the applicant after the record of interview, in which the applicant had drawn to her attention a number of enquiries which he considered should be made in relation to the allegations that had been raised against him. Detective Van Wyngaarden agreed that she went through the class list in respect of the allegation made by Ward that was the subject of charge 2. She was able to make contact with twenty students in that class, and none of them had seen the incident alleged by Ward. Detective Van Wyngaarden also confirmed that police had spoken to Angus Mair, and subsequently had taken a statement from him, in which Mair stated that he had not seen any student indecently assaulted. She confirmed that in September 2014, she received a telephone call from Ward, who told her that he was a functioning alcoholic, and that his memories were coming back and were intensifying for him. Finally, she confirmed that the applicant had no previous criminal convictions.
In response to the prosecution case, the applicant gave evidence, and called three witnesses.
In his evidence, the applicant confirmed that he had commenced teaching at Camberwell Grammar School in 1965, and that he retired in 1999. In 1969 and 1970, he was a form master for Form 1 (Year 7), and in each of those years he taught Year 7 and Year 8 mathematics and English. In 1971, he was not a form master. In that year he taught Year 7, Year 8 and Year 9 mathematics and Year 7 English. In 1972, he taught Year 9 mathematics and English, Year 7 mathematics and Year 10 mathematics. He stated that in those years, mathematics was taught in a unit scheme, in which students progressed through a series of units that were taught by different teachers.
The applicant stated that the Frankston camp was held in the first full week of each school year. In 1970, there were four Form 1 classes, so that 120 students attended the camp at Frankston. On the first day of the camp, the students would be organised in their accommodation, have lunch, and then attend the beach in the afternoon. On the following four days, classes would be held. The mess hut was used for two such classes. Another class was held in the library, and the fourth class consisted of a field exercise that was a nature study. The classes rotated.
In respect of Rofe’s description of the incident, that was the subject of charge 5, the applicant stated that field work only took place in the morning as one of the four rotation activities. Accordingly, the mess hut was never empty in the morning. The applicant had no recollection of Rofe being unwell on a Frankston camp.
The applicant gave further evidence that there were no other compulsory camps than the Frankston camp for the Form 1 students. The Bambara camps for Form 1 students were weekend camps which were voluntary, and which were taken by the relevant form master. He said that before 1969 in fact he took all of the camps at Bambara for Year 7, but very often one or more of the fathers of students also attended the camp to assist. In 1969 and 1970, there were four such weekend camps at Bambara for Year 7 students. The applicant ran two of those camps, and another teacher (John Collins) ran the other two camps. The applicant said that he did not participate in any such camps in 1971. He further stated that the only week-long camp at Bambara was a compulsory camp for Form 2 (Year 8) students. He said that he did not attend any of those camps, because he was not a form master in Form 2.
The applicant then gave evidence in response to each of the charges. In respect of charge 1, he said that he did not conduct any Grade 6 Bambara camps. In 1970 (when Hogarth was in Form 1), his form master was Peter Eck, who conducted the Bambara camps with another teacher, John Collins. The applicant stated that he was not on the same camp that was attended by Hogarth in 1970. In 1971, the applicant moved into the senior school and therefore did not take any Bambara camps. Specifically, the applicant denied indecently assaulting Hogarth at any time. He said that at night on the Bambara camps, when he checked on the students in their huts, he would ordinarily be accompanied by one or more of the fathers who also attended the camp.
The applicant then gave evidence about the allegations made by Ward, which were the subject of charges 2 to 4. He produced a hand-drawn diagram prepared by himself and which was tendered (Ex 5). That diagram depicted the teacher’s desk as being situated under the teacher’s rostrum and in the right-hand corner of the room (from the teacher’s perspective). He said that he could not recall the incident that was the subject of charge 2. He said that he would not call a student out in front of the class. Rather, if a student required assistance, the student would put his hand up, and he would go to the student’s desk. The applicant said it would be quite difficult for a student to stand at the desk on his right-hand side, because the desk was against the window and the rostrum was directly behind the teacher’s chair. He said that he had suggested to Detective Van Wyngaarden that she should speak to other students from the same year as Ward, and he gave her a list of possible students she should interview.
The applicant confirmed that the college magazine (‘The Grammarian’) set out the names of the students in each class for each year. He also denied that at the time of the alleged incident he would have been teaching the multiplication tables. He said that the mathematics syllabus for Year 7 would have been more advanced, and the students would be undertaking subjects such as algebra and geometry. Further, Ward was in the top group of students and he would have been well past learning the multiplication tables. The applicant confirmed that Ward won a junior government scholarship after Year 8 in 1971, which was awarded to the top students based on their examination results.
The applicant stated that the uniform worn by students in those days contained a small pocket, which was designed to make sure that the students did not put a lot of ‘rubbish’ in their pockets. He said that he had brought to the attention of Detective Van Wyngaarden the issue of the nature of the students’ uniforms at that time, and suggested that she contact the school’s archivist in that respect. He considered it would have been very difficult physically to place an adult hand in a student’s pocket, and to be able, in doing so, to touch his penis.
In respect of the incident that was the subject of charge 3, the applicant denied indecently assaulting Ward at the Bambara camp. He also denied the allegation that he indecently assaulted Ward at the Frankston camp (which was the subject of charge 4).
The applicant next gave evidence in response to the allegations by Tucker that were the subject of charges 10 to 12. He denied engaging in the conduct alleged by Tucker. He said that in 1972, he did not teach Year 8 mathematics. In that year, he taught Year 9 mathematics. In 1972, the only class that he retained in the junior school was Year 7 mathematics. He agreed that it was possible that he could have taught Tucker in 1971. However, he would not have taught him for the whole of that year, because of the way the unit scheme operated.
The applicant next gave evidence in response to charges 8 and 9, which were based on the evidence of Wells. He denied that he indecently assaulted Wells. He said he was not Wells’ Year 7 teacher.
The applicant then gave evidence concerning his attendance at the school camps in 1970 and 1971. He said that his first son was born in June 1970. There had been some problems during his wife’s pregnancy, but the birth was successful. The following year, 1971, was more difficult. His wife had a miscarriage in May and was in hospital. She then became pregnant again. Due to his wife’s condition, and the fact that he had an 11-month old child at the time, the applicant reduced his participation in the Bambara camps in that year.
The applicant then addressed the allegations made by Rofe, which were the subject of charges 5, 6 and 7. He said that in each year at Camberwell Grammar, he was involved in the production of a school play. In 1970, the play was entitled ‘A Small War’. He said that the area under the stage contained a lot of old sets and props. It was always locked and no-one could access it unless they had a key. That area was used for the dress rehearsal. On those occasions, the mothers of boys, who were involved in the cast, would be in the area under the stage assisting with costumes and makeup. During the dress rehearsal, the applicant was involved in the lighting box, which was in another area. The applicant said that the rehearsals (other than dress rehearsals) were held on one day after school, between 7:00 pm and 9:00 pm, generally on a Tuesday. The other rehearsal was on a Sunday afternoon between 2:00 pm and 5:00 pm.
The applicant denied that the incident, that was the subject of charge 5, could have occurred. He said that if he had ‘disappeared’ for any length of time, it would have been noted by everyone. He said that he could not leave one hundred boys and parents and take one boy away to another part of the school. He also denied that he could have struck Rofe twice in an act of discipline, because he would only ever hit a boy once. The applicant similarly denied engaging in conduct that was the subject of charge 7. He also denied indecently assaulting Rofe in the course of the Cradle Mountain camp.
In cross-examination, the applicant agreed that in 1970 he attended the Frankston camp with his class. He did not dispute that between 1:00 pm and 6:00 pm the mess hut was empty, because the students would be undertaking various activities at the beach or on the oval.
In respect of the incident that was the subject of charge 2, the applicant stated that it would have been difficult for Ward to have got past his chair at the front of the class so as to stand on his right-hand side. He said that if a student was in that position, he would not be hidden from the view of the class. He also said that the trousers, that were worn by the students in Year 7, were quite short and tight.
The applicant said that although in 1971 he scaled back his activities, his role in the play was a ‘matter of course’. He said that in 1970 he attended weekend voluntary camps at Bambara, but in 1971 he reduced his involvement. He agreed that he could have been at the Bambara camp in the year in which Ward made the allegation that was the subject of charge 4.
In respect of the allegations that were the subject of charges 6 and 7, the applicant stated that the room under the stage was always locked, and it was only opened shortly before the final dress rehearsal, in order to clear the room for that rehearsal. The applicant agreed that he was at the Frankston CEBS camp in 1970. He agreed that it was possible that he entered the students’ huts before the lights were turned out to make sure that all the boys were in bed. At that point, the lights were still on, and after he left the hut, he would turn the lights out.
Nigel Kelloway was a student at Camberwell Grammar from 1965 until 1972. In his evidence, he said that when he was in Year 9, he took on the roles of musical director and pianist in the middle school play, that was directed by the applicant entitled ‘A Small War’. He said that in preparation for that play there were rehearsals on Tuesday evenings and also on Sunday afternoons. He said that the area under the stage was never used for the rehearsals. He said that the boys could only have access to the area on the final dress rehearsal. In the final dress rehearsal, the applicant would have been in the lighting box at the far end of the hall above the entrance foyer supervising the lighting operators. Mr Kelloway did not recall any incident when the applicant went down to the stage and took a boy away to discipline him. He said that he never saw the applicant doing anything inappropriate or indecent towards any student. In terms of his own interactions with the applicant, he said that it was the applicant who had recognised that while he did not achieve well at sport or in academic matters, he had talent in music. He said that the applicant gave him the opportunity to develop those skills. He considered the applicant to be absolutely honest.
In cross-examination, Mr Kelloway denied that there could have been extra rehearsals for some of the performers in the school play. He said that the area under the stage was quite messy and it was always locked. No-one had access to it. It was cleaned out before it could be used for the dress rehearsal, but he said that there was ‘no way’ students could get into it because it was locked.
The applicant’s wife, Diana Spurritt, gave evidence of the personal difficulties that she and the applicant experienced in 1970. She said she was very anxious during her pregnancy because her mother had had a difficult obstetric history. As a consequence the applicant spent a fair bit of time caring for her. Her father died unexpectedly after the birth of their first child, and, accordingly, her mother also needed support. As a result, the applicant agreed to attend his normal activities including compulsory camps, but he would not participate in anything extra. The family difficulties were compounded during 1971 when Mrs Spurritt miscarried and was diagnosed with an ongoing health issue. As a consequence, the applicant did not attend any additional camps during that period.
Michael Urwin gave evidence that he attended Camberwell Grammar as a student between 1966 and 1971, and that he was taught by the applicant in Year 7. Subsequently, Mr Urwin returned to the school as a teacher from 1978 to 1991. He considered the applicant to be a man of ‘absolute integrity’. He never saw him doing anything inappropriate or indecent to any of his students.
Grounds 1-4 – the legal principles
Each of grounds 1 to 4 are based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.’
In order to succeed on that ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[1] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person. Thus, in R v Baden-Clay,[2] the High Court stated:
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.[3]
[1]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Dean, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[2](2016) 258 CLR 308; [2016] HCA 35.
[3]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court. The Court stated:
Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
…
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.[4]
[4]Pell [2020] HCA 12, [37], [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).
In considering the evidence that was adduced in respect of a particular charge, it is also necessary to take into account that the evidence of the complainants on other charges, and their evidence in respect of uncharged acts, was admitted as tendency evidence in the trial. As we have mentioned, the prosecution relied on that evidence to demonstrate that the applicant has a sexual interest in young boys aged between 11 and 15 years and that he had a willingness to act on that sexual interest.
Ground 1 — submissions
In support of ground 1, counsel for the applicant submitted that the evidence of the witness Angus Mair constituted an insurmountable obstacle to the conviction of the applicant on charges 8 and 9. Counsel pointed out that, in describing the incident that was the subject of charge 8, Wells stated that he was sitting in a two-seater desk next to Angus Mair. He said that when the applicant placed his hand over his shorts and on top of his penis, he looked at Mair, and Mair looked at him, and they both rolled their eyes. He said that subsequently he and Mair discussed the incident and they considered that what their teacher had done was not appropriate.
On the other hand, Angus Mair, in his evidence, stated that he did not witness any such incident and he had never discussed any such incident with Wells. When Angus Mair was questioned by the police, he consistently stated that he had not seen any untoward conduct by the applicant to Wells. Angus Mair was not cross-examined by the prosecutor pursuant to s 38 of the Evidence Act 2008 and the prosecutor did not otherwise seek to challenge his evidence. Nor did the prosecutor, in his final address, suggest to the jury that there was some reason why it should not accept the evidence of Mair. In his evidence, Wells said that the incident, that was the subject of charge 8, was not an isolated incident. He gave evidence that the applicant indecently assaulted him in full view of Mair on a number of other occasions. Thus, it was submitted, the conflict between the evidence of Wells and Mair was broader than the conflict in respect of the incident that was the subject of charge 8.
In respect of charge 9, counsel acknowledged that Wells gave evidence that on that occasion he was seated at his desk alone. However, it was submitted, the significant conflict in the evidence between Wells and Mair, in respect of the other occasions alleged by Wells, should have led the jury to have a reasonable doubt about the credibility and reliability of Wells’ evidence on charge 9. Further, counsel noted that, in respect of both charges, in his statement to police, Wells had described the applicant as his form master. However, the records tendered to the Court demonstrated that the applicant was not Wells’ form master in Year 8. In addition, it was submitted, it was most improbable that the applicant would have engaged in the conduct attributed to him by Wells in view of a room that was full of students.
In response, counsel for the respondent noted that Wells and Angus Mair gave evidence of events that had occurred almost 50 years previously. Accordingly, it is not surprising that there would be a difference in their respective recollections. In those circumstances, it was open to the jury to prefer the evidence of Wells, as the particular incidents described by him had a significant impact on his life. In addition, it was submitted, both Wells and Mair were asked to recall events which occurred when they were young children. There was evidence in the trial concerning the attitudes and understanding of children of that age concerning inappropriate conduct by persons in authority. Wells himself said that ‘one didn’t question it’.
Counsel for the respondent further submitted that the incident described by Wells would have occurred while he and Mair were seated at a desk, when Wells’ thighs would have been under the desk. Accordingly, despite the close proximity of Mair, it is feasible that he would not have seen the applicant’s hand between Wells’ thighs and then on his penis. The exchange of looks between them may have constituted a response by them to some other aspect of the applicant’s conduct, such as squeezing himself into the desk.
Counsel also noted that Mair’s recollection was imperfect. He could not recall being taught by the applicant and he could not recall if he sat next to Wells in class, although thought it was probable that he did so. In those circumstances, it was submitted, Mair’s lack of recollection of the incident in question did not constitute a direct conflict with the evidence of Wells. Accordingly, it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant in respect of charges 8 and 9.
In addition, counsel for the respondent noted that Wells stated that when the incident, that was the subject of charge 9, occurred, he was sitting alone. Counsel contended that Wells’ credibility, in relation to the account that he gave of that incident, was not impugned in cross-examination.
Ground 1 — analysis and conclusions
In determining whether the verdict of the jury on charge 8 was unreasonable or could not be supported having regard to the evidence, the principal question is whether it was open to the jury to accept Wells’ account beyond reasonable doubt in light of the evidence of Angus Mair. The resolution of that question requires a closer consideration of the evidence given by both Wells and Mair in respect of the incident in question, and the other incidents described by Wells.
In his evidence, Wells stated that at the time of the incidents, he invariably sat next to his friend, Angus Mair. He said that he was sitting next to Mair at the time of the incident that was the subject of charge 8, and on a number of other occasions on which, he said, the applicant engaged in the same conduct. He said that during the incident, the applicant’s hand was on his penis for between 10 seconds and one minute. At the time of the incident, he was sitting very close to Mair, and they both looked at each other and rolled their eyes. In cross-examination, he initially said that he could not say whether Mair saw what occurred. However, when a passage from the evidence that he gave at the committal hearing was put to him, he agreed that he was not in any doubt that Mair was aware of what had occurred. He recollected that he spoke with Mair after the incident. He and Mair both felt that what had occurred was not appropriate. In cross-examination, he agreed that, between the two of them, they worked out that it was not appropriate for a teacher to be putting his hand on Wells’ penis.
Wells further stated that the same conduct occurred on a number of other occasions when Mair was sitting next to him, and that on the other occasions he had spoken with Mair about it. When questioned about the incident, that was the subject of charge 9, he was asked whether he also had discussed that event with Mair. In response, he said:
I discussed it. I can’t remember specifically how many times I discussed it with Angus Mair.
Pausing there, it is clear that the evidence of Wells was that Mair was a direct eye-witness to the incident that was the subject of charge 8, and to a number of the other similar incidents alleged by Wells; that when the incidents occurred, they interacted with each other; and that they later spoke about the incidents. Wells said that, in those conversations, he and Mair understood that the conduct engaged in by the applicant was inappropriate.
The evidence of Angus Mair contradicted that evidence. When Mair was first contacted by the police in 2016, and when he later was spoken to again by police in April 2019, he said that he had never seen any person touched in an inappropriate or indecent manner during his time at Camberwell Grammar. He remembered Wells, and he remembered that he had mixed socially with Wells out of school. In further cross-examination, he stated that he did not recall seeing a teacher place his hand between the thighs of a student and then place his hand on the student’s penis. He agreed that if he had observed such an incident, it would have stood out for him at the time. He said he had no recollection of discussing any such incident with Wells, or of seeing Wells in a position where a teacher had his hand between his thighs and on his penis.
It is important to observe that the prosecution case was that Mair had seen the incident and had spoken to Wells about it. Although in this Court, the respondent raised the possibility that Mair may not have seen the event, that submission is entirely at odds with how the case was run before the jury, lacked an evidentiary basis, was not suggested to either Wells or Mair and cannot be entertained. Faced with that reality, the respondent fastened on one answer given by Mair when he said he could not recall seeing it as a basis to submit that Mair may have forgotten the incident with the passage of time.
In our view, the evidence of Angus Mair could not be discounted on the basis of a lack of memory. On the evidence given by Wells, the conduct of the applicant, that constituted charge 8, was repeated by him, in the presence of Mair, on a number of occasions. According to Wells, Mair and he interacted by exchanging looks during the incidents, and they later spoke about it. Certainly, a significant period of time lapsed before police spoke to Mair, when he was first required to recollect whether such incidents had occurred. However, the evidence given by Mair could not be reasonably discounted on the basis that his memory may have been so significantly eroded by the passage of time that he did not recall incidents that he had witnessed.[5] As a matter of ordinary experience, the events described by Wells, which (he asserted) Mair had witnessed, would have been quite unusual and unforgettable. While it is possible, it is nevertheless improbable, that the passage of years would have so affected Mair’s memory that he had no recollection at all of any such incident occurring, particularly in the context in which, according to Wells, they were close friends.
[5]Ibid [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Just as importantly, when regard is had to his evidence as a whole, it is abundantly clear that Mair said that he did not see the incident. His reference to not recalling the incident cannot fairly or reasonably be seen as an acknowledgement by him that his evidence might suffer from a lack of memory. If the submission was to be advanced it would have had to have been put to Mair directly.
In those circumstances, it is significant that the prosecutor did not seek leave to cross-examine Mair as an unfavourable witness pursuant to s 38 of the Evidence Act. It is well established that evidence may be considered to be unfavourable, for the purpose of s 38, if that evidence is not favourable to the case of the prosecution.[6] At the least, the evidence of Mair was not favourable for the case of the prosecution. As discussed, we consider that, properly analysed, it was contradictory to the evidence of Wells. In final address, the prosecutor did not advance any submission to the jury why it should reject the evidence of Angus Mair. Having referred to the evidence of Wells, the prosecutor reminded the jury of the evidence of Mair, and observed that Mair’s evidence did not substantiate in any way what Wells had said occurred. He then said to the jury:
You’ll take that into consideration members of the jury as to what you make of it is what you’ll make of it. My learned friend will make definite submissions to you about that. In terms of the prosecution case, it’s a question of you looking at that piece of evidence from Mr Mair. Remember the accused doesn’t have to prove anything. It’s the prosecution who has to prove the elements of the offence, and you’ll have to take into account that Mr Mair had no memory of that, of being spoken to about that. But that’s something that is in your hands.
[6]R v Souleyman (1996) 40 NSWLR 712, 715 (Smart J); DPP v Garrett [2016] VSCA 31, [66]–[67] (Maxwell P, Redlich and Beach JJA); Saddik v The Queen [2018] VSCA 249, [86] (Kaye and Niall JJA); Murillo v The Queen [2020] VSCA 68, [93] (Kaye JA).
In advancing those submissions, it is significant that the prosecutor, quite properly, did not contend that the jury should disregard the evidence of Mair, because it may have been so affected by the passage of time that he may have forgotten that he had witnessed the incidents described by Wells. Nor was it suggested that Mair may not have been able to observe the applicant place his hand on Wells’ thigh and penis, because they might have been under the desk. While that submission was relied on in response to this application, it was not advanced by the prosecutor at trial. Further, there was no evidentiary basis upon which the prosecutor could have made such submission, or on which the jury could have engaged in such reasoning.
Further, the attempt to sideline the evidence of the eyewitness Mair, effectively on the basis of a memory dimmed by the passage of time, would impermissibly discount the forensic disadvantage experienced by the applicant arising from the delay and have the delay rebound to the advantage of the prosecution.[7]
[7]Pell [2020] HCA 12, [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Thus, the evidence of Angus Mair was in direct contradiction of the evidence given by Wells in relation to the incident that was the subject of charge 8, and in respect of the other uncharged acts to which Wells asserted that Mair was a witness. There was no basis upon which the jury could have reasonably discounted or disregarded the evidence of Mair. Nor did the prosecutor advance any such basis either by cross-examining Mair pursuant to s 38 of the Evidence Act or in final address. In those circumstances, in our view, it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 8.
In his account of the incident that was the subject of charge 9, Wells stated that on that occasion he was sitting alone at the desk. Thus, the evidence given by Mair was not in direct contradiction of Wells’ account to that extent. However, Wells’ evidence was that the conduct, engaged in by the applicant on that occasion, was effectively the same as the conduct that he engaged in in the incident that was the subject of charge 8, and on the other occasions, which, he stated, were witnessed by Mair. In those circumstances, the conflict in the evidence between Wells and Mair, concerning the incident that was the subject of charge 8, and concerning those other incidents, was such that the jury, acting reasonably, must have had a reasonable doubt about the reliability of the evidence of Wells concerning the incident that was the subject of charge 9.
Further, in cross-examination, when asked whether he discussed the event that was the subject of charge 9 with Mair, Wells replied:
I discussed it. I can’t remember specifically how many times I discussed it with Angus Mair.
Again, Mair’s evidence was to the effect that Wells on no occasion discussed any such incident with him. In light of the fact that Wells and Mair at that time were close friends, it is, at the least, probable that if the event that was the subject of charge 9 occurred, Wells would have discussed it with Mair. Taking those matters into account, in our view, the verdict of the jury on charge 9 was unreasonable, in that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on that charge.
In determining the guilt of the applicant on charges 8 and 9, it was open to the jury to take into account the tendency evidence adduced in the trial, consisting of the evidence of the complainants on each of the other charges and the evidence of Tucker.
As we will discuss when considering grounds 2 and 3, there were a number of issues impacting on the credibility and reliability of the evidence of Hogarth (charge 1) and Ward (charges 2, 3 and 4), such that, in our view, their evidence was not sufficient to support the convictions on the charges that are the subject of those grounds. Further, the indecent act alleged in charge 1 (in respect of the complainant Hogarth) was significantly different to the nature of the indecent assault alleged by Wells. In each case, the indecent act occurred in quite different circumstances, and the alleged physical act was quite different.
We also consider that the evidence of Tucker (in respect of charges 10, 11 and 12) was quite problematic. His account of the circumstances in which he alleged the applicant indecently touched him, in full view of the other students in the class, was highly improbable. If it had been necessary to do so, we would have concluded that the evidence of Tucker was insufficient to support a conviction of the applicant on charges 10, 11 and 12.
In order to rely on evidence of the other complainants as tendency evidence, it was not necessary for the jury to be satisfied beyond reasonable doubt of the reliability of that evidence. Nevertheless, the tendency evidence was adduced in the trial in support of specific charges against the applicant. On this application, senior counsel for the respondent properly accepted that if we were to conclude that the evidence of a complainant was insufficient to support the conviction of the applicant on a particular charge, then that evidence should not be relied upon as tendency evidence to support the conviction of the applicant on any of the other charges. It follows that, in light of our analysis of the evidence of Hogarth and Ward, in the following sections of this judgment, and our assessment of the evidence of Tucker, the evidence of those three complainants would not have been sufficient as tendency evidence to support the conviction of the applicant on charges 8 and 9.
As we will later discuss, we consider that the evidence of Rofe was sufficient to support the conviction of the applicant on charges 5, 6 and 7. However, the incidents described by Rofe occurred in quite different contexts to the incidents described by Wells. To the extent that the evidence of Rofe might have disclosed a tendency of the applicant that was relevant to charges 8 and 9, we do not consider that it was of sufficient weight to alter our conclusion that the evidence on charges 8 and 9 was such that the verdict of the jury on each of those two charges was unreasonable.
It follows that the application for leave to appeal on ground 1 should be granted, the appeal on that ground allowed, and the convictions of the applicant on charges 8 and 9 set aside.
Ground 2 — submissions
Ground 2 is directed to the jury’s verdict on charge 1.
In support of ground 2, counsel for the applicant submitted that there was a solid obstacle to conviction of the charge, namely, that the jury could not have been satisfied, beyond reasonable doubt, that the applicant was on any of the camps suggested by Hogarth as being the setting in which he was indecently assaulted by the applicant.
Counsel noted that Hogarth gave evidence that the applicant assaulted him at a Bambara school camp in either 1969, 1970 or 1971. However, the evidence revealed that there was no week-long compulsory camp at Bambara for the whole of Grade 6 in 1969. The applicant gave evidence that he did not teach Grade 6 in 1969, so he would not have attended any of the voluntary weekend Grade 6 camps in that year. In respect of 1970, the evidence again revealed that there was no week-long camp at Bambara for the whole of Year 7. The applicant gave evidence that he would not have been at a two-day voluntary camp at Bambara attended by Hogarth, because Hogarth was not in any of the class groups with whom the applicant attended such a camp in Bambara in that year. The applicant gave evidence that he would not have attended any week-long or two-day voluntary camp at Bambara for Year 8 boys in 1971, because he was not a Year 8 teacher in that year. When those matters were put to Hogarth in cross-examination at one stage he ventured ‘and what about Mr Bence?’ Mr Bence was another teacher in respect of whom Hogarth had made an allegation of inappropriate conduct.
Counsel further noted that both the applicant and his wife Diana Spurritt gave evidence that, because of their difficult family circumstances, he would not have attended any additional camps in Bambara in 1970 or 1971. By reference to school records, the applicant explained that he would not have taken the Year 7 camp to Bambara after 1968. Counsel noted that there was no attempt by the prosecutor in final address to explain in what circumstances it was suggested that the applicant would have been at a camp at Bambara on an occasion when Hogarth was present. Counsel further submitted that the evidence of Wells, that he attended a weekend Bambara camp at which the applicant was also present, was of limited value to the prosecution, because Wells was unable to indicate the year in which he had been on that camp. Further, Wells did not state that he was on the same Bambara camp as Hogarth.
In response, counsel for the respondent noted that, as the events in question occurred fifty years ago, it was understandable that Hogarth was uncertain as to particular details concerning the incident in question, including the year in which it occurred. Counsel noted that Hogarth recalled attending a camp at Bambara in 1969, 1970 or 1971. Wells gave evidence that the applicant was present at Bambara in 1970 or 1971. Counsel further noted that the reference by Hogarth to Mr Bence, in cross-examination, was not an assertion by him that the offender in question may have been Bence and not the applicant. Hogarth recalled specifically that both Bence and the applicant were teachers at the Bambara camp. He had different reasons for recalling their presence there. His question to the cross-examiner ‘what about Mr Bence?’ was a challenge to the assertion, made by the cross-examiner, that the applicant was not present at the camp at that time.
Counsel for the respondent further noted that, in his record of interview, the applicant stated that he had taken Years 6, 7 and 8 to Bambara until the late 1970s. He said that Years 6 and 7 mainly attended on the weekends, and Year 8 level students went for a whole week. The applicant’s evidence at trial was inconsistent with the admissions that he had made to that effect in his record of interview, and it was open to the jury to reject the evidence of the applicant in that respect. In particular, two witnesses (Hogarth and Wells) both placed the applicant at Bambara between 1969 and 1971.
Ground 2 — analysis and conclusions
The critical question, under ground 2, is whether the jury could reasonably have concluded that the applicant was on the same camp at Bambara that was attended by Hogarth in the years nominated by Hogarth.
The evidence of Hogarth, in that respect, shifted in important respects when challenged. Hogarth stated that the incident occurred at the Bambara camp that he attended in either 1969 or 1970. Hogarth was in Grade 6 in 1969 and in Year 7 in 1970. The informant confirmed, in cross-examination, that the records of the school revealed that there was no week-long camp for Grade 6 students at Bambara in 1969, and that there was no week-long camp for Year 7 students at Bambara in 1970. The question therefore was whether the jury could reasonably conclude that the applicant was on the same weekend camp at Bambara that was attended by Hogarth in either of those years.
In his evidence, Hogarth could not recall being taught by the applicant while he was a student at Camberwell Grammar. The applicant’s uncontradicted evidence was that he was not a Grade 6 teacher in 1969. His unchallenged evidence was that he did not take any Grade 6 camps at any time, and that he had nothing to do with Grade 6. When the effect of that evidence was put to Hogarth in cross-examination, he responded, ‘I can’t recall’. Nor could he recall that the person, who conducted the voluntary Bambara camp for his class, was a different teacher, Mr Redmond. When Hogarth was pressed on that matter, and it was put to him that the applicant could not have been on the Bambara camp that he attended in Grade 6 in 1969, Hogarth responded, ‘it might have been in Form 1[that is, Year 7]’.
However, Hogarth’s evidence in that respect had its difficulties. First, in the statement that he made to police (which he confirmed in his evidence at the committal proceeding), Hogarth stated:
I distinctly remember being in camp when I was in Grade 6 or Form 1. I think it was Grade 6, but I’m not positive.
In cross-examination, Hogarth could not recall whether or not there had been week-long camps for Year 7 at Bambara, and he was not able to recall that the camps at Bambara in Year 7 were voluntary weekend camps. Nor could he recall that the groups, that attended the voluntary camps at Bambara in that year, were limited to fifteen or sixteen boys. When it was put to him that the applicant was not at any camp at Bambara in Year 7 that was attended by him, Hogarth responded:
… it might have been in the next year in ’71.
When asked if he accepted that he might have been wrong about 1970, he said:
Well it’s a long time ago.
The evidence given by the applicant, on that issue, was in direct contradiction to the evidence of Hogarth. First, he stated that he did not take any Grade 6 camps at Bambara, and that he had nothing to do with Grade 6. He also noted, from the records, that Hogarth’s form teacher in Year 7 in 1970 was Mr Rennick. The applicant gave evidence that originally he used to take all of the Year 7 Bambara camps when there were three Year 7 classes. However, when the school expanded so that there were four classes in Year 7, he ran two of the Bambara voluntary camps, and another teacher (John Collins) ran the other two voluntary camps. He stated that Mr Rennick took all of his weekend camps at Bambara with John Collins, and that he, the applicant, was not on any such camp.
The only substantive challenge in cross-examination to that aspect of the applicant’s evidence was based on a passage in the applicant’s record of interview that was conducted in February 2016, in which he stated that he probably ran twelve camps each year to cover all of the three Year 7 classes. However, when that part of his interview was put to him in cross-examination, the applicant explained that when the fourth Year 7 class was introduced, he ceased taking all of the classes to Bambara. He said that the answer, that he had given in the record of interview, was based on his erroneous recollection that up to and including 1970 there were still only three Year 7 classes. That aspect of the applicant’s evidence was not challenged, for example, by reference to any records of the school which might have contradicted it. In final address, the prosecutor did not seek to impugn that explanation given by the applicant in respect of what he had said to the police.
As we have noted, when Hogarth was pressed on his recollection in cross-examination, he said that the incident might have occurred in 1971. He made no such suggestion in the statement that he made to the police or in his evidence at the committal proceeding. In 1971, Hogarth would have been in Year 8. The applicant gave uncontradicted evidence that he would not have attended any camp at Bambara for Year 8 students in 1971, because he was not a Year 8 teacher in that year. Further, the applicant, and his wife Diana Spurritt, each gave evidence that, due to their difficult family circumstances, the applicant would not have undertaken any additional voluntary camps at that time. That evidence was not the subject of any real challenge by the prosecution at the trial.
Pausing there, there were plainly a number of difficulties associated with the evidence of Hogarth that, in the years in question, he attended a camp at Bambara at which the applicant was also present. It is, of course, quite understandable that, given the passage of almost fifty years, there would have been significant difficulties in Hogarth recalling a number of the matters of detail on which he was questioned both in evidence and in cross-examination. However, the jury was not entitled to permit that consideration to obscure its assessment of the quality and strength of the evidence that was given by Hogarth in respect of charge 1. As senior counsel for the applicant submitted, if the jury were to overlook or disregard the inconsistencies and deficiencies in the evidence of such a witness in light of the effluxion of time after the events in question, such an approach would impermissibly invert the effect of the forensic disadvantage direction that the law requires be given to the jury. Ultimately, in a case such as this, it is inevitable that the passage of time will erode and adversely affect a witness’s evidence. The lengthy passage of time between the alleged incidents and trial may explain inconsistencies and a lack of detail and blunt any suggestion that such matters undermine the credibility of a witness, but care must be taken that the delay does not provide or make weight to overcome deficiencies in the evidence. It was important for the jury to objectively assess the strength and quality of the evidence given by a witness such as Hogarth in determining whether that evidence was of a sufficient basis upon which it is satisfied beyond reasonable doubt of the guilt of the applicant of the offence charged against him.
Taking into account the various difficulties and deficiencies of the evidence that was given by Hogarth, and the largely unchallenged evidence of the applicant which contradicted it, we are driven to the conclusion that the jury could not reasonably have convicted the applicant of charge 1 based on the evidence of Hogarth.
The question, then, is whether the evidence given by Wells, concerning his attendance at the Bambara camp, added any material weight to the prosecution case in respect of charge 1. In his evidence, Wells stated that he attended one week-long camp at Bambara and at least a couple of weekend camps there in 1970 and 1971. He said that Mr Collins and the applicant attended the camp in 1970 and 1971. Wells stated that in 1970 he was in class 1R, and that the only teacher of that class was Mr Rennick. He also confirmed that Hogarth was in the same class. He said that he had a particular memory of the applicant attending the Bambara camp for Form 1 (Year 7) students in 1970.
Counsel for the respondent submitted that while Rofe was unable to recall the circumstances concerning the conduct that was the subject of charge 7, nevertheless he was unshaken in his evidence that he was taken to the applicant’s room on two separate occasions and subjected to the same conduct. The lack of detail, concerning the reason Rofe was in the applicant’s room on the second occasion, did not render the conviction unsafe or unsatisfactory in relation to charge 7.
Ground 4 — analysis and conclusions
The resolution of ground 4 is not without its difficulties. At the trial, and on this application, counsel for the applicant raised a number of issues that affected the strength of the prosecution case on each of charges 5, 6 and 7. It would not have been surprising if the jury had not been satisfied of the guilt of the applicant on each of those charges. However, on analysis, we are not persuaded that the issues, raised on behalf of the applicant, were of such a nature as to lead to the conclusion that it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant on each of the charges.
The central issue, in respect of charge 5, was whether the jury could be satisfied, beyond reasonable doubt, that the applicant had an opportunity to indecently assault Rofe in the mess hut in the course of the Frankston camp attended by Rofe. In that respect, the defence raised two points. First, in his evidence, Rofe indicated that at the time of the assault, the rest of his class was absent from the mess hut while it was undertaking a field activity. The unchallenged evidence of the applicant was that any field activity, engaged in by his class, would have taken place in the morning, at which time the mess hut would have been occupied by two other classes. The second difficulty, raised by the defence, was that if the incident was alleged to have occurred in the afternoon, the applicant would not have been able to have been in the mess hut, because he would have been absent supervising his class who would have been either at the beach or in the games area outside the mess hut.
In cross-examination, Rofe did not dispute the proposition that if the event had occurred in the morning, the mess hut would have been occupied by two other classes. In his evidence-in-chief, he described the activity, in which the rest of the class was engaged when he was assaulted by the applicant, as being a group activity ‘of some sort’. In his statement to police, he said that he thought that the class was engaged in an activity collecting leaves. When pressed on that matter in cross-examination, he agreed that his memory was that the class was on a field activity, but he added that while that was his recollection, he could not be sure.
In his evidence, and in cross-examination, Rofe was clear in his recollection that the incident occurred at a time when the mess hut was empty. It was not in dispute that the mess hut would have been vacant during the afternoon on each day of the camp. While the evidence of Rofe tended in favour of the conclusion that the incident described by him occurred in the morning, at a time when the mess hut would have had to have been occupied, nevertheless it did not preclude a conclusion by the jury that the incident itself did occur in the afternoon. When the applicant was pressed by the prosecutor, in cross-examination, he accepted that the mess hut would have been empty in the afternoon. When it was put to him that in the afternoon, he could have entered the mess hut to ask Rofe what was wrong, the applicant responded that that was not a scenario that was possible, because Rofe said that he was doing forestry work or an assignment to do with leaves (in which Rofe would have been engaged in the morning). That is, the applicant’s first line of response, to the proposition, was reliance on the evidence given by Rofe that the incident occurred in the morning. When further pressed on that matter, the applicant added, as an afterthought, the following:
The other thing in the afternoon is that I would be with my class, either at the beach or … in the games — the games area or outside.
In that respect, the applicant’s evidence did not preclude the possibility that, if he was engaged with his class outside the mess hut in some way, he might, at some stage, have entered the mess hut while Rofe was in it and while it was otherwise unoccupied. Accordingly, while the evidence in respect of charge 5 raised an issue as to whether the applicant had the opportunity to enter the mess hut whilst Rofe was in there, and the mess hut was otherwise unoccupied, the evidence was not such as to preclude the jury from reaching an affirmative conclusion in that respect. Accordingly, albeit with some reservation, we are not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 5.
The principal issue, in respect of charge 6, concerned the evidence of Rofe that the incident occurred when the applicant found Rofe and other students in the area under the stage during a rehearsal for a school play in which he was an actor. Rofe gave evidence that the incident occurred in daylight hours during a normal rehearsal that took place in an afternoon after school. In response, the applicant and Nigel Kelloway both gave evidence that the area under the stage was always locked, and students were precluded from entering it, except during the final dress rehearsal for the play, at which time the area would be occupied by teachers and parents preparing the actors at rehearsal. The applicant and Mr Kelloway also gave evidence that the rehearsals were held on a Tuesday evening between 7:00 pm and 9:00 pm, and not during the afternoon.
The prosecution did not dispute the evidence, given by the applicant and Mr Kelloway that, ordinarily, the area under the stage was locked, so that students, including Rofe, could not enter it during ordinary rehearsals. In cross-examination, the applicant accepted that some time before the final dress rehearsal, it was necessary to unlock the area, in order to enable teachers and senior school boys to enter it and clear it for use on the final dress rehearsal and during the presentation of the play itself. While the evidence of the applicant and Mr Kelloway might have favoured a conclusion that it was unlikely that Rofe could not have gained access to the area during rehearsals, nevertheless it did not, in our view, preclude the jury from reaching that conclusion. Certainly, the evidence supported the conclusion that students were not permitted to enter that area, and, as Mr Kelloway accepted in cross-examination, if they were found in it, they would have been ‘in big trouble’.
The evidence of Rofe, that the incident occurred during the afternoon, was inconsistent with the evidence of both the applicant and Mr Kelloway that the rehearsals occurred during the evening. That consideration certainly raised another issue concerning the prosecution case. However, it was not of such moment as to preclude the jury being satisfied beyond reasonable doubt of the evidence given by Rofe.
Ultimately, it is clear that the jury found Rofe to be a reliable and credible witness in respect of the central aspects of the account given by him in respect of charge 6. The issues raised by the applicant, at trial and on this application, in respect of his evidence, were of some moment. However, we do not consider that they were such as to preclude the jury being satisfied beyond reasonable doubt of the account given by Rofe of the incident that was the subject of charge 6.
The evidence given by Rofe in respect of the incident, which was the subject of charge 7, was particularly limited. He said that he did not recall the specifics of how the incident ‘came about’. However, the only occasion, on which the applicant supervised him, was in respect of the play, and Rofe stated ‘so for me to be in his … well, around him … it makes sense that it was at the time of the play’. In cross-examination, he confirmed that he did not recall the lead up to the incident at all. However, he had a specific recollection of being ‘singled out for something’. In his evidence-in-chief, he distinguished the incident that was the subject of charge 7, from the incident the subject of charge 6, by recalling that on that second occasion, he was only struck once with the compass.
The limited nature of Rofe’s recollection concerning that incident might certainly have led the jury to have a reasonable doubt concerning the guilt of the applicant on charge 7. However, it did not preclude the jury from concluding that it was satisfied beyond reasonable doubt as to the honesty and reliability of Rofe’s recollection of a second occasion on which he was singled out, punished, and then indecently assaulted by the applicant. In that respect, Rofe was unshaken in his recollection that that second incident did occur. Accordingly, we consider that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 7, notwithstanding the deficiencies of the evidence given by Rofe in respect of the incident that was the subject of that charge.
It follows that while ground 4 of the application is reasonably arguable, it does not succeed.
Ground 5
In view of the conclusions that we have reached in respect of grounds 1, 2 and 3 (charges 1 to 4, 8 and 9), it is only necessary to consider ground 5 in respect of the convictions of the applicant on charges 5, 6 and 7.
In support of ground 5, counsel for the applicant submitted that the conviction of the applicant on each of charges 1 to 9 demonstrated that the jury’s consideration of the individual charges had been ‘swamped’ by the number of allegations made against the applicant by the five former students, which allegations were cross-admissible as tendency evidence. In support of that submission, counsel contended that the convictions of the applicant on charges 3 and 8 were so irreconcilable with other evidence in the case as to demonstrate that the jury must have been impermissibly overwhelmed by the amount and nature of the allegations that were contained in the tendency evidence. Counsel further submitted that if this Court was persuaded, in considering grounds 1 to 4, that one or more of the convictions of the applicant was not reasonably open on the evidence, there was a significant risk that the evidence given by the complainant in respect of those charges, which the jury ought to have rejected, might have been impermissibly used by the jury in its consideration of the other charges.
In response, senior counsel for the respondent accepted that if this Court upheld some of grounds 1 to 4 of the application, on the basis that the conviction of the applicant on the charges that were the subject of those grounds was not reasonably open to the jury, it would follow that there was a significant risk that, in considering the remaining charges, the jury might have used the tendency evidence in a manner which was not reasonably open to it.
In our view, the concession so made by senior counsel for the respondent was correct and appropriate in the circumstances of the case. The trial judge gave the jury the usual direction that, in considering each of the charges against the applicant, the jury was required to consider the evidence that was relevant to that particular charge. The jury was also given a direction that in considering each charge, it was entitled to use the evidence, adduced in respect of the other charges, as tendency evidence. Strictly speaking, in order to use the evidence on other charges in that way, it was not necessary for the jury to be satisfied of that evidence beyond reasonable doubt. However, in the particular circumstances of this case, it would be quite anomalous and unjust if the jury had relied, in its consideration of its verdicts in respect of charges 5, 6 and 7, on the evidence of the complainants in respect of the other charges, which we have held was not such as to support the conclusion by the jury of the guilt of the applicant beyond reasonable doubt on those charges. We would also add that it would be quite anomalous and unjust for the jury to have relied, by way of tendency evidence, on the evidence of Tucker in respect of charges 10 to 12, in light of the improbability of the account given by Tucker of the incidents that were the subject of those charges.
As we have already discussed, while we consider that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charges 5, 6 and 7, nevertheless there were a number of significant issues, raised by the applicant, in respect of the evidence adduced by the prosecution concerning the incidents that were the subject of each of those charges. It is for that reason that senior counsel for the respondent quite properly accepted that if this Court decided to set aside the verdicts of the jury on some of the grounds, it would be appropriate to also set aside the verdicts of the jury the subject of the other grounds. In other words, in view of the conclusions that we have reached, under grounds 1, 2 and 3, that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charges 1 to 4 and 8 and 9, it is necessary to set aside the convictions of the applicant on charges 5, 6 and 7, on the basis that the consideration by the jury of the evidence, on those charges, might have been impermissibly affected by the evidence that was adduced by the prosecution in respect of the other charges.
For that reason, we would uphold ground 5 in relation to the conviction of the applicant on charges 5, 6 and 7. It follows that the conviction of the applicant on those charges should be set aside.
The question which remains is whether this Court should direct that the applicant be retried on those charges, or whether, instead, it should substitute an acquittal on them. In that respect, counsel for the respondent accepted that it would be open to the Court to order either such disposition.
The trial judge sentenced the applicant to 15 months’ imprisonment on each of charges 6 and 7, and six months’ imprisonment on charge 5. The orders of cumulation, made by the judge in respect of those charges, were such that the applicant, in effect, was sentenced to a total effective term of 23 months’ imprisonment on those three charges. If the applicant were retried, and again convicted, on those charges, it is likely that the sentence imposed on him would be of similar duration. Based on the proportion of the non-parole period to the head sentence directed by the sentencing judge, if the applicant, were again convicted on those charges, he would be directed to serve a minimum period of some 12 or 13 months before he became eligible for parole. The applicant has already served some 12 months’ imprisonment under the sentence imposed on him. In those circumstances, we do not consider that it would be just or appropriate to direct that the applicant be retried on charges 5, 6 and 7. It accordingly follows that it is appropriate, in the particular circumstances of this case, that the Court direct that an acquittal be entered in relation to each of those charges.
Ground 6
Under ground 6, counsel for the applicant submitted that, in her charge to the jury, the trial judge made a series of comments which supported the prosecution case in a manner that was unfair to the applicant, and which resulted in a substantial miscarriage of justice.
In McKell v The Queen,[8] the High Court considered the principles that apply in respect of the capacity of a trial judge to make a comment to the jury concerning the facts of a case before it. The plurality[9] emphasised that a trial judge’s discretion to comment on the facts of the case should be exercised with circumspection.[10] While it is the duty of the trial judge to sum up the case for the jury presented by each of the prosecution and the accused, it is no part of the trial judge’s role to assume the mantel of the prosecution or defence counsel.[11] Their Honours emphasised that there is an important difference between summarising the case presented by each side on the one hand, and advocacy of either case on the other hand.[12] In particular, the ‘right’ to comment does not entitle a judge to suggest to the jury how a disputed question of fact should be resolved.[13] Accordingly, their Honours stated:
What has sometimes been described as the ‘right’ of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge’s duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge’s summing‑up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s ‘right’ to comment on the facts. Accordingly, in the present case, Beech‑Jones J was right to conclude that the trial judge’s summing‑up was so unfair in its lack of balance that a miscarriage of justice occurred. In consequence, the appeal must be allowed, the conviction quashed and a new trial had.[14]
[8](2019) 264 CLR 307; [2019] HCA 5 (‘McKell’).
[9]Bell, Keane, Gordon and Edelman JJ.
[10]Ibid 323 [47].
[11]Ibid 319–20 [35], citing Whitehorn v The Queen (1983) 152 CLR 657, 682 (Dawson J).
[12]McKell (2019) 264 CLR 307, 322 [44]; [2019] HCA 5.
[13]Ibid 323 [46], 324 [49].
[14]Ibid 322–3 [45].
In support of ground 6, counsel for the applicant referred to seven passages in the judge’s charge which, he submitted, contained comments which did not comply with the principles stated by the High Court in McKell.
The first comment, relied on by the applicant, followed the section of the judge’s charge in which her Honour (correctly) told the jury that it might find a charge proven on the evidence of a complainant alone. Following that direction, the judge then stated as follows:
The nature of the allegations here is such that the touching is said to have occurred in a way that others may or may not have seen it.
Counsel for the applicant noted that the prosecutor did not make any submission to that effect to the jury, and that a number of the complainants had given evidence of the public nature of the touching that they alleged.
Of itself, the comment made by the judge was innocuous and correct. Her Honour stated that the nature of the allegations were such that the indecent assault may have occurred in circumstances that others ‘may or may not have seen it’. That comment, standing alone, reflected the fact that, while some of the complainants (in particular Tucker, Wells and Ward in respect of charge 2) gave evidence of touching that was quite public in its nature, other complainants (Hogarth, Ward in respect of charges 3 and 4, and Rofe) gave evidence of indecent assaults in which the incident would not have been observed by any other person.
However, the judge then followed that comment with a second comment, stating:
For example, in a bunk room where a light is from outside or where a hand is slid under bedding, or in a position behind the desk in the classroom or under the guise of checking work.
Each of those examples were instances of circumstances in which a particular incident would not have been observed by any other person. They also reflected the circumstances of particular incidents about which evidence was given by complainants. The second example — that the assault occurred ‘in a position behind the desk in the classroom or under the guise of checking work’ — was of particular moment in the trial. It was apt to describe the incidents the subject of charges 2 (Ward) and 8 and 9 (Wells), as well as the incidents described by Tucker (charges 10, 11 and 12). The prosecution did not suggest, in respect of any of those incidents, that the alleged indecent assault could not have been observed by other persons in the class. The evidence of each of the three complainants was that the touching occurred in the presence of other members of the class. Indeed, both Tucker and Ward gave evidence that all the other students in the class would have been in a position to see the assaults that were perpetrated on them. The comment made by the judge was also capable of being considered, by the jury, to be applicable to charge 8, as providing an explanation (not proffered by the prosecution) as to why Angus Mair may not have observed the indecent assault on Wells.
The third comment, complained of by the applicant, was a statement by the judge in her charge that the prosecution suggested that support might be found for the reliability and accuracy of a particular complainant in the available records.
Of itself, such a direction was of little moment. However, it was followed by the fourth comment complained of. The judge referred, by way of example, first, to the evidence of Rofe as to the character that he was portraying in the play, that evidence being supported by the program. The judge then referred to the evidence of Wells that the boy next to him was Angus Mair, and stated that the class list showed that they were in fact in the same class.
The two examples given by the judge demonstrated that each of the two complainants, in one particular uncontentious respect, were correct in their evidence in relation to a detail or fact that they remembered. However, the comment made by the judge was capable of being incorrectly understood by the jury as indicating that, because the complainant was able to recall correctly one background fact, that consideration gave support to the overall reliability and accuracy of the evidence given by that complainant. While such a line of reasoning, on its face, would be a non sequitur, nevertheless, in the context and atmosphere of a criminal trial, the comment made by the judge was, we consider, capable of being misconstrued by the jury in that way.
The fifth comment, relied on by counsel for the applicant, concerned the complainant Ward. The judge gave a direction to the jury as to the potential unreliability of Ward pursuant to s 32 of the Jury Directions Act. Her Honour then proceeded to remind the jury of some of the arguments advanced by each side in respect of Ward’s evidence. In doing so, she told the jury that the prosecution contended that Ward had been honest in explaining why he did not include the detail of ejaculation in his account.
On this application, counsel for the applicant submitted that the prosecutor had not made any such submission. We do not accept that submission. In his final address, the prosecutor contended that the jury should (generally) regard Ward as a credible witness. In a subsequent passage, the prosecutor reminded the jury that Ward had been too embarrassed to tell anyone that he had ejaculated during the incidents that were the subject of charges 3 and 4. In those circumstances, it was clearly implicit in the submissions of the prosecutor that the explanation thus given by Ward to the jury, as to why he had not earlier mentioned ejaculation, was credible.
The sixth comment, relied on by counsel for the applicant, was attached to the same passage, in which the judge, in effect, told the jury that the prosecution submitted that Ward was honest in his evidence in which he explained what he meant by ‘acknowledging’ the events. Certainly, the prosecutor did not expressly refer to any explanation given by Ward as to what he meant by the fact that he, many years later, ‘acknowledged’ the events that he claimed had occurred. However, as noted, the prosecutor, on more than one occasion, submitted to the jury that it should regard Ward as an honest witness, and that his evidence was credible.
The seventh comment, relied on by the applicant, occurred in the context of directions given by the judge as to the relevance of evidence of uncharged acts, including the evidence of Wells as to indecent acts committed by the applicant on occasions other than those that were charged, and the evidence of Tucker. The judge told the jury that the prosecution relied on that evidence as tendency evidence. Her Honour then said that the prosecution relied on the evidence for a number of other purposes. Her Honour stated:
First they say it provides a true context of that offending against Mr [Wells] and provide some context for what Mr [Tucker] describes. In other words, on their evidence, these were not events happening out of the blue. It can be used to explain the particular complainant’s conduct or state of mind such as why they might not have reacted or complained immediately about it.
Certainly, the prosecution did rely on the evidence of uncharged acts for the first purpose thus described by the judge, namely, to demonstrate that the individual incidents, that were the subject of the charges, did not occur ‘out of the blue’. However, the prosecution did not rely on that evidence to explain the conduct of a particular complainant or to explain why that complainant might not have complained immediately.
In that way, there were aspects of the first, second, third, fourth and seventh matters relied on by the applicant which constituted comments made by the judge to the jury which either were not supported by the evidence, or which advanced propositions not relied on by the prosecution. To that extent, the comments did not comply with the principles that have been stated by the High Court in McKell. However, it is important to consider the comments in the context of the charge, given by the judge to the jury, and in the context of the case. If it were necessary to determine ground 6, we would not be persuaded that the combination of those matters resulted in a substantial miscarriage of justice to the applicant.
We should add to the foregoing analysis that the charge given by the judge to the jury was otherwise thorough, balanced and fair to both parties.
Summary of conclusions
For the foregoing reasons, we have reached the following conclusions:
1.The applicant should be granted leave to appeal on each of grounds 1 to 5.
2.The appeal should be allowed on grounds 1, 2 and 3 on the ground that the verdicts of the jury, convicting the applicant on charges 1, 2, 3, 4, 8 and 9 are unreasonable and cannot be supported having regard to the evidence.
3.The appeal should be allowed on ground 5 in respect of the verdicts of the jury convicting the applicant on charges 5, 6 and 7.
4.Each of the convictions of the applicant on charges 1 to 9 inclusive should be set aside, and in their place an order be made entering a judgment of acquittal of the applicant on each of those charges.
By reason of the conclusions that we have reached, it is not necessary to express our conclusions on the application for leave to appeal against sentence.
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