Valentine v The King

[2023] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Valentine v R [2023] NSWCCA 43

Hearing dates:

19 October 2022

Date of orders:

10 March 2023

Decision date:

10 March 2023

Before:

Basten AJA at [1];
Button J at [250];
Wilson J at [253]

Decision:

(1)   Grant the applicant leave to appeal from the convictions entered in the District Court on the indictment dated 11 February 2019.

(2)   Uphold the appeal with respect to the conviction on count 24, quash the conviction and enter a verdict of acquittal on that count.

(3)   With respect to the aggregate sentence –

   (a)   grant leave to the appellant to file written submissions with respect to any possible reduction of the aggregate sentence within four weeks of the date of this judgment;

   (b)   grant leave to the Director to file submissions in reply within six weeks of the date of this judgment;

   (c)   direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 14 days of the filing of the Director’s submissions in response.

(4)   Otherwise dismiss the appeal.

Catchwords:

CRIMINAL PROCEDURE – appeal against convictions for sexual offences – appeal filed months late – application for extension of time – 21 proposed grounds of appeal

CRIME – appeal – ground – unreasonableness of verdict – use of tendency evidence on appeal to assess whether reasonable doubt to be entertained

CRIME – appeal – unreasonable verdicts – elevating subjective demeanour-based findings over intrinsic value of evidence – failure to apply forensic prejudice in accepting complainants’ evidence – global rejection of appellant’s evidence

EVIDENCE – admissibility of historic complaint – admission to prove truth of content – Evidence Act 1995 (NSW), s 66

EVIDENCE – disallowance of cross-examination suggesting other sexual activity – defence that other officer raped victim – relevance of questions – whether other activity at or about the time of the charged offence – whether other activity and charged offence part of a connected set of circumstances – Criminal Procedure Act 1986 (NSW), s 293

Legislation Cited:

Child Welfare Act 1939 (NSW), s 72

Crimes Act 1900 (NSW), ss 61, 63, 76

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), s 293

Evidence Act 1995 (NSW), ss 55, 66, 116

Cases Cited:

Dansie v The Queen [2022] HCA 25; 96 ALJR 728

Dansie v The Queen [2020] SASCFC 103

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GS v R [2022] NSWCCA 225

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Ford [2009] NSWCCA 306; 201 A Crim R 451

R v Morgan (1993) 30 NSWLR 543

Category:

Principal judgment

Parties:

Frank Valentine (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Ms A Francis (Appellant)
Mr E Balodis (Respondent)

Solicitors:
Randall Legal (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/00168451
2017/00157047

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 201 (On sentence)

Date of Decision:

24 May 2019

Before:

Noman SC DCJ

File Number(s):

2016/00168451

File Number(s): 2016/168451

HEADNOTE

[This headnote is not to be read as part of the judgment]

In February 2019 Frank Valentine, the appellant, was indicted on numerous charges of sexual and indecent assault committed by him on several complainants in a period spanning April 1971 to January 1974. During the time of the offending the appellant was employed by the New South Wales Department of Child Welfare and Social Welfare, first at the Parramatta Girls’ Training School (PGTS) and later at the Daruk Boys’ Training School (Daruk).

The offending in relation to Ms AA consisted of three counts of indecent assault in which the appellant was found to have touched the complainant indecently on three separate occasions.

The offending in relation to Ms BB consisted of three counts of rape and one of assault for which the appellant was found guilty. The three rapes occurred over three separate occasions in the “dungeon”, “isolation cell” and “holding cell” respectively at PGTS, with the assault committed during the third occasion.

The offending in relation to Ms CC consisted of four counts of indecent assault and one of assault for which the appellant was found guilty. Two of the four incidents involved the appellant touching Ms CC indecently while she was in the sickbay within PGTS. Of the remaining three counts, an indecent assault and an assault occurred in the appellant’s office, and one indecent assault in the holding cell.

In relation to Ms DD the appellant was found not guilty of seven of the ten counts for which he was charged and guilty of one count of assault occasioning actual bodily harm, one count of buggery and one count of indecent assault.

The offending in relation to Ms EE involved one charge of indecent assault relating to an incident in the shower area at PGTS, at a time when no other person was present.

In relation to Mr MM, a 15-year old boy held at Daruk, the appellant was charged with four counts of indecent assault and one of buggery, with the first three counts occurring at a camp, the fourth at Daruk and the fifth and most serious count occurring at a house owned by the appellant. The appellant was found guilty of all five counts.

The appellant was tried in the District Court and found guilty on 21 counts. He was sentenced on 24 May 2019 to an aggregate term of imprisonment for 22 years with a non-parole period of 13 years. The appellant filed a notice of appeal with an application for an extension of time on 5 May 2022.

The primary issues were:

1. admission of evidence of complaint;

2. disallowance of cross-examination disclosing other sexual activity;

3. reliance on tendency evidence in assessing the reasonableness of the verdicts; and

4. entertaining a reasonable doubt as to count 24.

The Court held, granting leave to appeal, upholding the appeal with respect to count 24 (Wilson J dissenting) but otherwise dismissing the appeal:

by Basten AJA (Button and Wilson JJ agreeing):

As to issue (i) – admissibility of complaint

1. Some incidents are of such consequence and of such a nature that the passage of time does not dull the memory. Ms AA’s conversation with her sister less than a year after her release from the institution was admissible as to the truth of the contents: [37].

2. Variation from the complainant’s evidence did not undermine its admissibility. It was admissible to contradict any suggestion of recent invention. While it did not identify the appellant, it was not tendered to support identification, but as evidence that the conduct occurred, without which the identity of the culprit did not arise. The criteria in s 66(2)(b) and (2A) were satisfied: [39].

As to issue (ii) – rejection of cross-examination

1. Questioning, disclosing or implying that the complainant had taken part in sexual activity, other than activity with the appellant fell within the prohibition in s 293(3) of the Criminal Procedure Act. Depending on the purpose of the cross-examination, the section has the potential to work unfairly against the interests of the accused. However, purpose will often be addressed by the preliminary question, namely whether the evidence would be relevant: [82]-[83]. The defence of misattribution depended upon the complainant having been raped or otherwise abused by someone else at Parramatta: [87]

Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150; R v Morgan (1993) 30 NSWLR 543, applied.

1. The judge was in error in dismissing the proposed cross-examination as irrelevant. The defence was not that the complainant had not been raped, but that she had been raped by another man. That necessarily suggested that there was sexual activity involving someone other than the accused. Accordingly, questions designed to elicit such evidence were relevant. However, the exclusionary rule in s 293 was engaged. Accordingly, the critical question was whether the exception in subs (4)(a) was engaged: [98].

2. The evidence did not suggest that other sexual assaults occurred “at or about the time” of the offences alleged against the appellant, but rather that they occurred months apart. Nor did the events the subject of the proposed questioning form “part of a connected set of circumstances in which” the alleged offending by the appellant occurred. Accordingly, the trial judge was correct to reject the questioning as to assaults by another officer: [99]-[101].

As to issue (iii) – use of tendency evidence

By Basten AJA (Wilson J agreeing):

1. Had the verdicts been given by a jury, this court would have been entitled to have regard to all the properly admitted evidence in determining the reasonableness of the verdicts. As the court does not, in making its own assessment of the evidence, rely upon or give weight to findings made by the trial judge, it must be entitled to give such weight to the admitted evidence as it thinks appropriate. It is sufficient to treat the tendency evidence as a basis for rejecting the natural tendency to dismiss the complaints as inherently implausible. Beyond that, the assessment of unreasonableness will be undertaken having regard to the evidence of the specific complainants and the accused and other witnesses, relevant to the specific complaints: [223].

Dansie v The Queen [2022] HCA 25; 96 ALJR 728, applied.

1. Where the occurrence of an event in question is determined by reference to a combination of factors, it is the cumulative effect of all of the evidence (including any relevant denial by the accused) which must support a conclusion beyond reasonable doubt as to that element of the offence: [229].

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, applied.

by Button J:

1. Even allowing for the possibility of mis-identification and contamination, the fact that six adult complainants asserted on oath that it was the appellant who sexually assaulted them many years ago when they were all teenagers in his care is of substantial importance to whether this court experiences a reasonable doubt about any of the convictions: [251].

As to issue (iv) – unreasonable verdict on count 24

by Basten AJA (Button J agreeing):

1. As to count 24, it was open to the trial judge to have regard to evidence that the appellant was at Parramatta on days when he was on leave, but the record that he had taken recreation leave for that three-week period ought to have led the judge to have a reasonable doubt that he was at work on the day the complainant nominated. The complainant may have been wrong in her attempt to identify with precision, more than 30 years later, the occasion on which the offence occurred. Accordingly, the judge should have entertained a reasonable doubt as to whether the offending described by the complainant took place as alleged. Such advantage as the trial judge enjoyed would not have assisted significantly in removing the doubt: [146]-[148].

by Wilson J (dissenting):

1. The trial judge was entitled to conclude that the fact that the appellant was on leave was not determinative of count 24, given the evidence of his attendance at Parramatta when not required to be there, and was entitled to accept the complainant’s evidence where the trial judge had an advantage of hearing the evidence. Given the judge’s opportunity to assess Ms EE’s reliability, and the persuasive tendency evidence, this Court should not experience a reasonable doubt: [268]-[269].

GS v R [2022] NSWCCA 225, applied.

JUDGMENT

TABLE OF CONTENTS

Order of determining grounds – principles

[9]

Background

[16]

The complainants

[23]

Complainant AA: counts 1-3

[24]

Issues

[24]

Grounds of appeal

[36]

Ground 3 – admissibility of complaint

[36]

Ground 1 – failing to have regard to prior inconsistent statement

[40]

Ground 2 – identification evidence

[44]

Ground 4 – warning – mistaken identification

[50]

Ground 5 – unreasonable verdict

[58]

Complainant BB : counts 4-7

[73]

Issues

[73]

Ground 6 – cross examination about other sexual activity

[80]

Ground 7 – earlier non-disclosure

[102]

Complainant CC: counts 8-12

[106]

Offences

[106]

Appeal ground 9 – identification of appellant

[114]

Ground 10 – unreasonable verdicts

[125]

Complainant DD: counts 13-22

[126]

Ground 15 – unreasonable verdicts due to inconsistency

[131]

Complainant EE – count 24

[138]

Offending conduct

[138]

Grounds 11-14

[140]

Unreasonable verdict

[142]

Complainant MM – counts 35-39

[149]

Alleged offending

[150]

Challenge to convictions

[154]

MM’s admission to Daruk

[155]

Offending at camp

[161]

Events involving Mrs Valentine

[169]

The trip to Wahroonga

[179]

Complaint evidence

[188]

Discharge from Daruk

[195]

Challenge to conviction on counts 35-39

[199]

Generic grounds 19, 20, 21

[201]

Generic grounds 19 and 20

[202]

Generic ground 21 – rejection of applicant’s denials

[212]

Tendency evidence

[219]

Other unreasonable verdict grounds

   Complainant AA

[230]

   Complainant BB

[236]

   Complainant CC

[241]

Conclusions

[245]

Orders

[249]

1. BASTEN AJA: In February 2019 the appellant, Frank Valentine, was put on trial on an indictment containing numerous charges of sexual or indecent assault committed by him on a number of complainants in a period from April 1971 until May 1973 when he was employed by the New South Wales Department of Child Welfare and Social Welfare [1] (the Department) at the Parramatta Girls’ Training School, and with respect to a period in January and February 1974 when he was employed at Daruk Boys Training School.

   1. The Department went through several name changes in the 1970s; this name applied from 1970-1973, through most of the events the subject of the proceedings.

2. The trial was conducted by Judge Noman SC, sitting without a jury. On 9 April 2019 she delivered judgment, in which she found the applicant guilty on 21 counts and not guilty on eight counts. The guilty verdicts encompassed complaints by six complainants. On 24 May 2019, he was sentenced to an aggregate term of imprisonment for 22 years with a non-parole period of 13 years.

3. A notice of appeal was filed (out of time) on 5 May 2022, with an application for an extension of time. Because the grounds of appeal are not limited to points of law, leave to appeal is required pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). Counsel was advised at the hearing of the appeal that an extension of time would be granted. There should also be a grant of leave to appeal. Accordingly, it is convenient to refer to Mr Valentine as the appellant.

4. Amended grounds of appeal were filed on 18 October 2022. The amended notice contained 21 grounds, of which one was abandoned and seven involved claims that the verdicts were “unreasonable”. Three grounds were generic, applying to the convictions in respect of all complainants. The remaining ten grounds were directed to specific matters in relation to separate complainants.

5. In oral submissions, the appellant’s counsel focused on the three generic grounds applying to all of the complaints, which were formulated as follows:

“Ground 19: the trial judge erred in respect of each of the separate trials by elevating subjective demeanour-based findings at the expense of the intrinsic merit or demerit, in the evidence.

Ground 20: the trial judge erred in failing to apply the forensic prejudice which the appellant faced in concluding that the complainants appeared to be truthful and reliable.

Ground 22: the trial judge erred in the global rejection, in each of the separate trials, [of] the entirety of the appellant’s evidence.”

Although ground 19 referred to “separate trials”, there was in fact one indictment and one joint trial of all the charges.

6. Unsurprisingly, each of the challenges raised on behalf of the appellant reflected in some respect the difficulties caused by the lapse of some 45 years from the date of the conduct complained of until the trial. Not only were there the usual consequences arising from loss of documents, and impaired memory, but also from the fact that in some cases witnesses had written about their experiences and in others had given evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse.

7. There were specific complaints dealing with the manner in which the trial judge addressed apparent inconsistencies in the evidence, the disallowing of certain lines of cross-examination and possible misattribution of the appellant as the perpetrator of offences. Ultimately these elements were crystalised in ground 19 as a complaint that the judge gave too much weight to demeanour-based findings as to the credibility and reliability of the complainants’ evidence and, in ground 21, her failure to be satisfied that the evidence of the appellant gave rise to a reasonable doubt as to his guilt. These circumstances, the appellant submitted, supported a conclusion that the verdicts generally were “unreasonable, or cannot be supported, having regard to the evidence”, as provided in the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). Accordingly, the matters raised by the generic grounds are best addressed in relation to the claims of unreasonable verdicts.

8. The next question is, in what order should the allegations of specific error, the generic grounds and the unreasonable verdict grounds be addressed?

Order of determining grounds – principles

9. As to the task to be undertaken by this Court in addressing the unreasonable verdict grounds, the parties were agreed that the relevant guidance was to be obtained from the recent judgment of the High Court in Dansie v The Queen. [2] The Court affirmed the statement of principles in M v The Queen [3] and confirmed that the same principles applied to judge alone trials, in accordance with Filippou v The Queen. [4] The function of this Court is therefore to carry out an independent assessment of the evidence in order to determine whether it entertains a reasonable doubt as to the guilt of the accused, and then, if so, to consider whether that doubt was capable of being resolved by the advantage of the trial judge in seeing and hearing the witnesses.

   2. [2022] HCA 25; 96 ALJR 728 (Gageler, Keane, Gordon, Steward and Gleeson JJ).

   3. (1994) 181 CLR 487 at 494-495; [1994] HCA 63.

   4. (2015) 256 CLR 47; [2015] HCA 29 at [12].

10. On one view it would be wrong, in undertaking that exercise, to review the findings of fact made by the trial judge applying some principle of “deference or restraint”,[5] before identifying error on her part; the court must not accord “undue attention” to findings of fact made by the trial judge. [6] On the other hand, in Pell v The Queen,[7] the Court said that an intermediate court of appeal, in undertaking its own assessment, did not have to disregard the fact that the jury had evidently accepted the prosecution witnesses as “credible and reliable”. [8]

    5. Dansie at [32].

    6. Dansie at [7].

    7. (2020) 268 CLR 123; [2020] HCA 12.

    8. Pell at [39].

11. Dansie was a case in which the deferential approach adopted by the majority and the “independent” assessment undertaken by the dissenting judge in the South Australian Full Court affected the outcome; this too is potentially such a case. That may be illustrated by the fact that, if the Court were to accept that limited weight should be given to demeanour-based assessments of the witnesses, the outcome would inevitably turn on this Court’s independent assessment of the whole of the evidence.

9. For reasons which will be explained, the common elements of the complaints as to the behaviour of the accused amounted to a powerful prosecution case; nor should the proposed rejection of demeanour-based findings be accepted in the terms in which it was presented. On the one hand, it may be appropriate to accord less weight to the trial court’s ability to resolve doubts where oral testimony constitutes the bulk of the evidence and relates to events which have occurred long ago. On the other hand, the appropriate weight will inevitably turn upon the circumstances of the particular case.

10. Further, this was a case in which the trial proceeded over some 35 days. In such circumstances, the appeal court will be conscious of its inability to recreate the whole of the trial from the papers. Exchanges between counsel and the judge explored issues which may appear to have played little weight in the judgment, but may well have coloured the presentation of evidence and final addresses. Again, there is a countervailing consideration: where the appeal court has the benefit of lengthy reasons for judgment, it may well feel it has a greater understanding of the trial than it would in cases in which the verdicts are those of the jury.

11. In Dansie, the South Australian Court of Criminal Appeal dealt first with specific challenges to the reasoning of the trial judge, which were unanimously rejected. [9] There was no criticism of that approach in the High Court. Further, Nicholson J, who was in dissent in the Full Court, but whose approach was upheld in the High Court, noted that there was little dispute as to the primary facts, nor as to findings made by the trial judge as to the facts. [10] There is no objection to summarising the evidence as found in the judgment of the trial judge, so long as an independent assessment of the evidence, rather than mere acceptance of contested findings by the trial judge, is in due course undertaken.

    9. Dansie at [28].

    10. Dansie v The Queen [2020] SASCFC 103 at [18].

12. There is, however, merit in dealing with specific complaints before considering the unreasonable verdict grounds. That is for two reasons. First, if a specific ground is made out, other than the need to determine whether there should be a retrial, some time may be saved in not having to deal with an examination of extensive evidential material. Secondly, important aspects of the evidence will be revealed in addressing the specific challenges. For that purpose, it is convenient to deal with the grounds in particular categories, as arranged by counsel for the appellant in her address. However, it is not sensible to address the generic grounds without a detailed account of the offending the subject of the convictions. Before doing that, however, it is helpful to provide some general background to the nature of the prosecution case.

Background

16. It is convenient to refer to the two institutions at which the appellant worked at the relevant times as “Parramatta” and “Daruk”. Each was a home then under the control of the Department to which young persons could be sent by the Children’s Court if found, in the terms of the Child Welfare Act 1939 (NSW), s 72, to be neglected or uncontrollable, including where “exposed to moral danger”: s 72(n). Inmates were subject to a strict regime and there were forms of punishment administered to those who failed to conform.

17. In January 1971, the appellant was employed as a Deputy Superintendent at Parramatta. The Acting Superintendent at the time was a Mr Mayhew, but he was replaced about a month after the appellant commenced by Gordon Monaghan, who was the Superintendent throughout the period of the appellant’s employment. There was a second Deputy Superintendent, Mr Gilford. (There was a fourth male officer, Mr Greenham, who was said to be available as a relieving officer, but the appellant gave evidence that he was not called upon.)

18. The institution was housed primarily in a three-storey building with a central area and two wings. It contained offices for the staff, a holding room, shower block, “dungeon”, covered way, clothing store, toilet block, recreation room, dining room, kitchen, scullery, muster area, and officer’s dining room. There were two associated buildings known as Bethel House and Keller House. The dungeon was also referred to as the “below ground level room” and the “cellar area”. The appellant gave evidence of being shown around the institution by the matron, who warned him not to go into the shower block or the cellar area, both being her responsibility. He said he was also advised in an initial tour undertaken by Mr Mayhew not to go into the cellar area.

19. The appellant gave evidence that he recalled the girls lining up at about 8.05pm in the “covered way” to say goodnight to him. He said that he would say goodnight to each girl by her first name. [11]

    11. Tcpt, pp 809-810.

20. At the time of the alleged offending, the appellant was in his early 30s. He had a short beard, but no moustache. As there were only three male officers regularly at the institution, and in circumstances where the appellant knew each of the girls by her first name, and the girls called him “Mr Valentine”, subject to questions of recall, there was limited opportunity for misidentification of an assailant. However, that issue did arise with respect to three of the complainants. The judge noted that the other two male officers identified by the appellant as working at the institution whilst he was there, Mr Monaghan and Mr Gilford, were deceased or not able to be located. Neither the matron nor two youth workers who assisted at the institution gave evidence. [12]

    12. Judgment at [47].

21. Some further general background evidence was provided by Barbara Preston, a psychologist employed by the Department who visited Parramatta one day a week in 1972 and 1973. She described a culture of “strict, very set rules or very set behaviour” and said there was “regular, … frequent punishment”. In evidence summarised by the trial judge at [79] she stated that:

“She did once attend with a superintendent on a girl in a cell in Bethel House who[m] she had previously interviewed. The girl had marks on her face and dry blood on her clothing. The girl told her she had been in the cell for three days and nominated Mr Monaghan as responsible for assaulting her. This was the only occasion that she saw injuries on a girl that she said were not self-inflicted. This event coincided with a cessation of her deployment to Parramatta and the transfer of Mr Monaghan and Mr Gilford.”

22. The judge accepted that punishments were imposed, contrary to the rules, which exceeded the period of 24 hours and that “the dungeon” was used as a place to punish girls. [13]

    13. Judgment at [83].

The complainants

23. There being a statutory prohibition on the publication of material identifying the complainants, despite all now being mature adults, some of whom have spoken publicly of their experiences, it is necessary, although depersonalising, to refer to them anonymously. This judgment uses letters.

Complainant AA: counts 1-3

Issues

24. There were three counts on the indictment relating to Ms AA, each of which alleged an assault committed between 30 April 1971 and 23 July 1971, accompanied by an act of indecency, contrary to s 76 of the Crimes Act 1900 (NSW), as then in force. The appellant was convicted on each count.

25. There were five grounds of appeal. Ground 3 challenged the admission of a first complaint by Ms AA to her sister, which allegedly took place about six months after her release from Parramatta. There was an issue with respect to the identification of the appellant as the perpetrator of the offending. Ground 4 complained that the trial judge had failed to warn herself in respect of particular matters which gave rise to the possibility of a mistaken identification of the appellant. Ground 2 alleged that the judge had erred in finding that Ms AA satisfactorily accounted for “not nominating the appellant as perpetrator” in an autobiography written years before her complaint to the police. Ground 1 alleged a prior inconsistent statement by the complainant in her autobiography. Ground 5 asserted that the verdicts were unreasonable.

26. There is logic in dealing first with ground 3, challenging the admissibility of a complaint by Ms AA to her sister. In other respects, grounds 1, 2 and 4 may best be understood as supporting the unreasonable verdict ground. However, before turning to the specific grounds and the admissibility of the complaint, it is necessary to outline the events giving rise to the charges.

27. Ms AA was 15 years of age and pregnant when she was received at Parramatta on 10 May 1971. She remained there for a little over two months. Her evidence was that on three occasions, which she said were consecutive days, the appellant had approached her while she was sitting on a bench near the covered walkway, having been given a glass of milk, whilst the other girls were at muster and exercising. On each occasion, she said that the appellant put one arm around her shoulder and slipped his left arm under the wrap of her dress so that he could squeeze or cup her right breast. The appellant, in his evidence, accepted that there would have been an opportunity for him to act as alleged, but denied that any such conduct took place.

28. Her description of the third occasion was more detailed than those of the first two. She said: [14]

“He was standing, standing there with his hands behind his back. The sun was just coming up. And I went and sat down, and he, I could feel his presence getting closer, so I started to shuffle, or sort of waddle my bottom along the seat a bit. To move away. And he came and looked in my face, and said, ‘if you move again, you’re in the dungeon’. And he sat down and he was quite rough, cos I had started to shake. And I think he said something to the effect of, oh, you’re cold’ and he roughly sort of pulled me in towards him, with his arm around me. And he had his hand again on my belly, and I was like, ‘oh god, I think he’s going to move the baby’ and I was shaking. And he put his hands inside my wrap, and squeezed my breast, really hard. Really, really hard. And I was still uncontrollably shaking, and I think it must have been that time. Because he stood up, and Kerrie walked over, as he was going towards the admin building, and she said, ‘dirty bastard’ or something. And I walked back to, back to the kitchen area with her, and I vomited. Vomited the milk up.”

14. Tcpt, 12/02/19, p 45(1).

29. In her evidence-in-chief, she was asked if she had told anybody about what the appellant had done and said: [15]

“I told no one at Parramatta, because, just no way you’d tell anyone. They didn’t listen. They didn’t believe you, and I might have been thrown in the dungeon. And, the only person I told was about six months later, was my other sister …. And I was sitting on the lounge with her, and I said to her, ‘you know, one of the officers at Parramatta touched me up. Felt me up’. And she said, ‘what do you mean?’ And I said, ‘they just felt me up. They touched me up’. And she gave me a hug, and I burst into tears. And that’s the only time I ever spoke of it. Ever.”

15. Tcpt, p 46(15).

30. The cross-examination was interrupted, but the prosecutor came back to the issue later and asked her if she had written a book. She said that she had, “probably the late 80s but it wasn’t published until 1990”. [16] She was asked if she had made reference to what the appellant had done to her when she was in Parramatta and she said: [17]

“No, no reference to that, and no reference to scrubbing the bricks, because the publisher said it wouldn’t be saleable and in those days it was too confronting in 1990.”

16. Tcpt, p 97(45).

17. Tcpt, p 97(50).

31. In cross-examination she was taken to her statement to the police in September 2014. She agreed that she had said, “during this statement, I disclosed for the first time in my life the indecent assaults that I endure[d] at the hands of Mr Valentine on the covered walkway”. [18] She also agreed that another officer had specifically asked her about “Mr Valentine” before she gave the statement. [19] She was then asked about what she had told the publishers about scrubbing the stairs and agreed she had not told them about the assault by Mr Valentine. When asked why not, she said: [20]

“I had just blocked it. I didn’t want to discuss it. I haven’t told anyone since 1972. I wasn’t acknowledging it, was not talking about it …. It was too distressing, too emotional, and it took me back to being a fifteen-year terrified pregnant girl.”

18. Tcpt, p 101(30).

19. Tcpt, p 102(5).

20. Tcpt, p 104(38).

32. She was asked about other things she had said in the book, including her experience of giving birth, stories of gross abuse at Minda, the home to which she was taken after Parramatta, and of being dragged out of her bed by police after she had returned home.

33. She gave evidence in chief that the only two male staff she could recall by name from her time at Parramatta were Mr Gilford and Mr Valentine. She then gave the following evidence: [21]

“Q.   Tell us what you recall about Mr Valentine – what about what he looked like at the time?

A.   He was probably in his 30s – but bearing in mind I was 15 so everyone looked older – like – there was no perception of age. He was very stern looking. He had dark hair – shiny sort of dark hair. In actual fact a lot of the girls liked him because of his name – because of Valentine’s Day.

Q.   What about facial hair – do you recall him ever having any facial hair?

A.   I do recall him having a beard. Yes, because we used to have to say goodnight with him or Gilford – every night. But I do, at one stage, recall him having a beard.

Q.   And when you say you had to say goodnight to them – did you say goodnight by name?

A   Yes, we would have to say, ‘goodnight Mr Valentine’, or ‘goodnight Mr Gilford’. Like, in line – we would all pass by one by one.”

21. Tcpt, p 42(27).

34. In cross-examination, she was challenged as to her identification of Mr Valentine as the offender, and as to the commission of the offences.

35. The judge admitted, over objection, evidence of her sister (Ms HS) to whom she said she had complained of the incidents some six months after leaving Parramatta. Ms HS, who was eight years older than Ms AA, said she had visited Ms AA once in Parramatta but she had said nothing at that time; however, in 1972 (the year Ms HS’s daughter was born) she had a conversation with Ms AA as to which she gave the following evidence: [22]

“Q.   How did this conversation arise?

A.   We were just talking generally, and she said about her time in Parramatta Girls’ Home. She was just talking and she kind of said one of the supervisors touched her.

Q.   Did she say male or female?

A.   She said a male. He, she said he touched her, and I said, ‘what do you mean?’ She said, ‘he put his hand on my boobs and in my pants’, and I said, ‘but you were pregnant’ and she said, ‘it didn’t make any difference’. She looked kind of upset again, so we left it.”

22. Tcpt, p 153(30).

Grounds of appeal

Ground 3 – admissibility of complaint

36. There appears to have been no objection taken to the evidence of Ms HS until the evidence had been completed. [23] The objection focused on two matters, namely the content of the complaint as recounted by Ms HS, which was not in the same terms as that recounted by Ms AA, and, secondly, the fact that the appellant was not named. Counsel for the appellant contended that there was a negative representation made arising from the failure to name the appellant.

    23. Tcpt, 2/4/19, pp 1339-1340.

37. On 2 April 2019, the judge ruled, with limited reasons, that she would admit evidence of complaint in relation to Ms AA, but not in relation to two other complainants. The judge gave particular significance to the principle that some incidents are of such consequence and of such a nature that the passage of time does not dull the memory. With respect to Ms AA, the evidence involved “a conversation with her sister less than a year after her release from the institution”. The evidence was admitted. (With respect to the other two complainants, the evidence was admitted, but limited to the question of credibility, and not as evidence of the truth of the content of the complaint.)

38. Section 66 of the Evidence Act1995 (NSW) provides:

66   Exception: criminal proceedings if maker available

(1)   This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)   If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—

(a)   that person, or

(b)   a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A)   In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—

(a)   the nature of the event concerned, and

(b)   the age and health of the person, and

(c)   the period of time between the occurrence of the asserted fact and the making of the representation. [24]

24. Section 66(2)(b) of the Victorian Act has an additional criterion by which the section would be engaged.

39. For present purposes, the evidence which Ms AA gave was of three instances of touching her breast, but not of touching her genitalia. Ms HS’s evidence was consistent with that complaint, although it went further and in that respect was inconsistent with Ms AA’s evidence. However, that did not affect its admissibility. The complaint, as is usually the case, was incomplete and in important respects. Its ultimate value, however, in the present case was to contradict any suggestion of recent invention. To the extent that the appellant’s case was not that the events did not occur, but that he was not the party responsible, the complaint had no probative value. However, it was not tendered to support identification, but as evidence that the conduct occurred, without which the identity of the culprit did not arise. The appellant’s denial cast doubt on the happening of the event which involved him. There was no reason to suppose that the complaint, so far as it went, did not satisfy the criteria in s 66(2)(b) and (2A). Ground 3 should be rejected.

Ground 1 – failing to have regard to prior inconsistent statement

40. Ground 1 addressed a statement in Ms AA’s autobiography, an extract from which was tendered as exhibit 14 at the trial. In chapter 6, describing the regime at Parramatta, she wrote:

“Our days started early. We made our beds immediately and then the corners were checked – to be done and redone and redone until they were just right, according to the officer in charge. Then we would dress and muster, no matter what the weather, in the open on a concrete slab.

Pregnant girls had a few advantages: we got a big glass of fresh milk every morning while everybody else just had porridge, and we didn’t have to work in the kitchen or the laundry.”

41. This statement was relied upon in cross-examination as inconsistent with her description of the three assaults, which she said occurred after she had had her glass of milk, but at a time when the other girls were on muster, and she was not. The actual inconsistency is hard to identify: the account cannot easily be read as implying that the milk was supplied while the girls were all together having breakfast. Ground 1 alleged that the trial judge failed “to have regard to” the prior inconsistent statement.

42. Assuming there was a material “inconsistency”, I do not read the judgment as ignoring the earlier account. In describing the evidence of Ms AA and the accused, the judge noted that the accused had denied the offending and had stated he never worked three morning shifts in a row. [25] (This evidence was directed to Ms AA’s claim that three assaults took place on consecutive mornings.) The judge also noted that the accused “confirmed the provision of milk to the pregnant girls at the time the other girls from dormitories 1 to 5 were meeting to attend muster”. [26] That sentence reflected one aspect of the cross-examination in relation to opportunity. The relevant questions and answers were as follows: [27]

“Q.   Now, you said in your evidence when you were asked some questions about morning muster, you said, ‘Girls would come down at 6.30 and the muster would start at 7’… Now, you were asked what happened in that intervening period between 6.30 and 7 and you said, ‘The youth workers were organising the girls in the muster area and it was in that period of time pregnant girls went and had their milk’, do you remember giving that evidence?

A.   I do.

…

Q.   Now, so you agree that between 6.30 and 7 was a period of time in which girls would be there, and you would be there but you would not have to do anything official in relation to the muster?

A.   Correct.

Q.   And that was also a time when pregnant girls received their morning glass of milk, is that correct?

A.   I believe so.”

25. Judgment at [117].

26. Judgment at [118].

27. Tcpt, p 1023(35).

43. The judge clearly accepted the evidence given by Ms AA of the morning routine, which was confirmed by the appellant. Whether the description of the morning routine in the autobiography was relevantly inconsistent with the oral evidence may be doubted but the judge was entitled to accept the oral testimony of both parties without addressing the possibility of inconsistency in a document which did not address the conduct the subject of the charges. The trial judge focused on the significance of the evidence; there was no error in failing to refer to one piece of evidence which was not of any particular significance, read in context. Ground 1 should be rejected.

Ground 2 – identification evidence

44. Ground 2 alleged that the judge erred in finding that the complainant had “satisfactorily accounted for not nominating the appellant as perpetrator in her autobiography written years before her complaint to the police on account of the ‘timing and manner of disclosing sexual offending as being intensely personal’”.

45. After addressing the question of opportunity, the judge turned to a number of further challenges raised by the appellant. One was Ms AA’s failure to complain whilst at Parramatta; [28] a second was the significance of her complaint to her sister. The judge referred to the fact that Ms AA had acknowledged that her statement to police was “the first time she disclosed the indecent assaults by the accused”. Ms HS had also given evidence that Ms AA had identified the appellant as the person who assaulted her at about the time there was media reporting of the Royal Commission. The judge continued:

“123   I am mindful to contemplate whether [Ms AA] nominated the accused through suggestibility or contamination. The fact that there was a timely complaint of touching by one of the male supervisors provides strong support for the touching even allowing for the discrepancy over the precise nature of the touching.”

28. Judgment at [120].

46. The reasons then dealt comprehensively with the history of Ms AA’s contacts with the police, knowledge of the appellant being named in the Royal Commission, and her communications with her solicitor. The judgment continued:

“127   … She agreed that she met with the welfare officer, a psychologist, hospital staff, and police while she was still pregnant and did not tell them anything. She said there was no way she would complain while she was still an inmate as she was terrified.

128   [Ms AA] said she did not tell anyone other than her sister in 1972 as she was too ashamed and too scared. She said she blocked it out of her memory and did not want to discuss it.

129   It was suggested, that it was not the accused who touched her as she described. She said it was. She said she knew who the accused was as she spoke to him using his name.”

47. In making findings with respect to the counts involving Ms AA, the judge noted that Ms AA did not refer in her statement to police to the appellant having a beard, but did so in her evidence. The judgement also noted the doubt cast on whether the appellant would be rostered on three mornings in a row and continued:

“430   I accept also that the events are not contained in her book even though there are other confronting inclusions. [Ms AA] indicated various explanations for this omission. The timing and manner of disclosing sexual offending is intensely personal. I have considered this inclusion and the explanations in considering reliability.

431   This was a touching that occurred while she was pregnant. I do not regard it as adverse to [Ms AA]. There were also inconsistencies about complaint. Initially [Ms AA] had said she had not complained but then she said she had. She explained the inconsistency. More significantly, [Ms HS] was impressive. She spoke frankly without embellishment. She clearly indicated a complaint of touching by an officer. No name was used. There were only limited males at the institution …

…

433   There was otherwise an extensive delay in nominating the accused by name. He was only named after publicity about the Royal Commission. There was also contact with Mr Kelso [solicitor] and the police. The evidence was unclear about precisely how the accused’s name was first nominated. An issue of contamination and suggestion arises.”

48. It is clear from these passages that the words quoted in ground 2 were not specifically directed to nominating the appellant as the perpetrator, but as relating to the disclosure of the offending. So far as the non-disclosure of the offending in the 1990 autobiography was concerned, the judge gave careful attention to the possible reasons, but ultimately accorded them limited weight in circumstances where she accepted the evidence of complaint many years earlier to Ms AA’s sister, Ms HS. Ground 2 should be rejected.

49. The strength of the evidence in support of the findings is a separate matter to which it will be necessary to return in addressing the unreasonable verdict challenges.

Ground 4 – warning – mistaken identification

50. Ground 4 alleged a failure by the trial judge to warn herself “in respect of the particular matters which gave rise to the possibility of the mistaken identification of the appellant by [Ms AA]”. In written submissions the appellant asserted that the judgment referred to, but did not “disclose analysis, of the inherent problems in the timing of [Ms AA’s] nomination of the appellant as perpetrator including no reference at all to the absence of evidence from anyone that she nominated the appellant’s name until after such time as Detective Paul first raised it nor that [Ms AA] did not identify the appellant by his photo”.

51. Apart from the reference to the failure to identify the appellant in a photo identification process, the description of the judge’s alleged failings does not conform to the discussion in the judgment, significant parts of which have already been set out. The judge expressly found that the evidence was “unclear” about precisely how the appellant’s name was first nominated, in the sense of the complainant identifying him in making a statement or a complaint.

52. There was lengthy cross-examination of Ms AA in relation to identification of the appellant by name and in relation to her description of him. She was cross-examined in relation to saying goodnight to the officers. [29] She was also cross-examined about her failure to select the appellant from a photo array. When asked if she was asked to pick the person out from a photo array she said, “No, I was not”. [30]

    29. Tcpt, p 120.

    30. Tcpt, p 121(30).

53. In so far as ground 4 suggested that the trial judge had not given herself the appropriate warnings with respect to mistaken identification, the challenge was based upon a false assumption as to the directions in fact recorded.

54. This is one of the warnings which a trial judge sitting alone is required to state, although the underlying purpose is to explain to a jury who may not be familiar with the risks of identification evidence what those risks may be. Section 116 of the Evidence Act, which was expressly addressed by the judge, refers to the special need for caution before accepting identification evidence and the reasons for that need for caution, both generally and in the circumstances of the case. The judge stated:

“29   I must carefully consider the circumstances in which each witness made observations purportedly of the accused and the circumstances in which the witness made his or her observations can affect the reliability of identification evidence. This includes giving consideration to the familiarity prior to the observed incident; the circumstances of the occasion of the observation; and any discrepancies in the description. In undertaking this task and being mindful of the need for special caution, I note that the description provided by witnesses was provided … well after the alleged interaction.”

55. The judge observed that the accused would have been known to the witnesses through innocent interaction, but noted a possibility of misattribution: at [30]. The judge then set out the evidence concerning his appearance at the time. The general nature of the caution was more than adequately covered in the judgment.

56. As to the specific circumstances involving Ms AA, the judge took into account the delay in identifying the accused as the offender and the possibility of “contamination and suggestion”, earlier described as misattribution: at [433]. She again reminded herself of “the warning about identification”: at [434]. There was undoubtedly powerful evidence, as the judge noted, that the girls said goodnight to one or other of the deputy superintendents, by name, every evening. Ms AA had said that she remembered the girls being attracted to him because of the association of his name with Valentine’s Day.

57. The proposition that the trial judge did not give herself the necessary general and specific warnings in relation to the possibility of mistaken identification is without substance. Ground 4 must be rejected.

Ground 5 – unreasonable verdict

58. There remains the challenge with respect to the offending against Ms AA based on the verdict being unreasonable and unsupported by the evidence. This ground has, in effect, two limbs. One concerned the evidence of Ms AA; the other the denial by the appellant.

59. The evidence of the complainant in relation to the offending was clear; the identification of the appellant was not accompanied by any element of doubt. Accordingly, the evidence, if accepted, was capable of supporting the prosecution case.

60. Reading the transcript of Ms AA’s evidence provides no obvious basis for doubting its reliability. No material concession was obtained in cross-examination, but rather realistic possibilities of error were addressed and on occasion accepted, but not in terms which affected the issues in dispute. Further, Ms AA’s direct evidence of the offending was supported by the complaint to her sister, made within 12 months of the events occurring which was, in turn, supported by the sister’s evidence. On its face, the prosecution evidence does not raise any reasonable doubt in my mind.

61. A similar view may be taken of the evidence of the accused. Although he claimed no recollection of Ms AA, his denial of the conduct was otherwise unqualified. He conceded that the opportunity could have arisen, and largely accepted the circumstances at the time of muster as described by Ms AA. However, his denial of the offending with Ms AA cannot be viewed in isolation from his denials of other offending. The tendency evidence involving the separate complaints by the other complainants was potentially a powerful basis for rejecting his denial in relation to Ms AA, whom he did not recall. Accordingly, it will be necessary to return to the question of the unreasonable verdict after dealing with the other complaints.

62. A key element of Ms AA’s evidence was the repetition of three very similar events. However, it was not put to Ms AA in cross-examination that the repetition on three consecutive days could not have occurred because the appellant was never rostered to attend on three consecutive mornings. When the appellant was interviewed by police in relation to those allegations, he commenced by denying any recollection of a girl bearing Ms AA’s name, even when asked if it would assist his memory to know that she was pregnant at the time she was at Parramatta. Three allegations were described, the police questioning commencing in relation to the third: [31]

“Q.   It has been further alleged that the following day, so this is the third day now, third day in a row ….”

31. Tcpt, 22/03/19, p 1016(47).

63. In respect of each event, the appellant responded to the police questions that it, or “that”, did not happen. He was cross-examined as to why he had not at that stage said, “well it couldn’t have happened because I didn’t work there three mornings in a row”. [32]

    32. Tcpt, p 1017(14)-(23).

64. In his evidence in chief he was asked about the roster, claimed that he had no copies of the roster as his papers had been destroyed in a flood in 2011, but said that he had been able to reconstruct the three week roster. [33] He then gave the following evidence: [34]

    33. Tcpt, p 808(40), 810(3)-(40).

    34. Tcpt, p 811.

“Q.   Were you always on a morning shift?

A.   No.

Q.   How did that work?

A.   Well, if I had the roster, but I haven’t.

Q.   Have you been able to locate any rosters from Parramatta?

A.   I drew up a roster. I think its 99% correct, but I think if it was introduced to the Court it would cause confusion.

Q.   No, I mean have you been able to find any rosters from the home from Parramatta Girl’s Home?

A.   I had some and they got buried in a flood so the answer is no.

…

Q.   Did you try to recreate a roster?

A.   Yes.

Q.   You tried to recreate it based on documents that you have?

A.   On bits of documents and family events.

Q.   But you say that if you did the morning shift that was one that you didn’t do every day?

A.   True.

Q.   How did it work? Would you do the morning shift for a certain amount of days and then the afternoon shift?

A.   Say if I had the weekend off and I started on the Tuesday I would start on the late shift and then on the Wednesday I would start on the early shift and so it worked on a rotating basis.

Q.   Does that mean you wouldn’t do three morning shifts in a row?

A.   No.”

65. When the accused was taken to the evidence of Ms AA he answered questions as follows: [35]

    35. Tcpt, p 850.

“Q.   You have heard the evidence of [Ms AA] that on three consecutive days you indecently touched her on the bench in the covered way at or around the time of muster, what do you say to that allegation?

A.   First of all I would say it is completely false. Secondly I would not be on duty three mornings in a row.

Q.   And is that specific to you, or is that how the roster worked?

A.   That was specific to the roster.

Q.   How many mornings would you be on duty maximum consecutively?

A.   One.

Q.   So, if you did a morning shift, on a Monday, what would happen on a Tuesday?

A.   I would work afternoon shift.

Q.   Then on the Wednesday?

A.   Wednesday the three admin officers were all on duty.

…

Q.   Alright, so, if on a Wednesday the three administrative staff, the superintendent, the duty superintendent and yourself, would work from 6.30 was it not possible for you to have the morning shift on the Thursday?

A.   I would have to refer to my rosters to answer your question.

Q.   Just as a general proposition?

A.   I don’t see at this stage any reason why not.

Q.   If then you had worked on a Thursday morning, what would the ordinary roster system be for the Friday morning?

A.   I would work the afternoon shift.”

66. That evidence was expressly challenged in cross-examination. After dealing with his failure to raise the question of the impossibility of three consecutive days in response to the police questions, the prosecutor returned to what was now an adamant statement that, “I was never at Parramatta for three mornings in a row”. [36] It was suggested to him that, whatever the roster may have provided, he lived a five minute walk from the site and could have attended additional shifts on occasions. He rejected the suggestion. It was then put to him that his superintendent had prepared a report suggesting that he was “on duty as required by the roster for administrative staff which is an exacting one and does not hesitate to spend additional time on the institution when circumstances require it”. He denied that he undertook additional shifts, beyond those for which he was rostered on a regular basis. [37]

    36. Tcpt, p 1020(1) and (38).

    37. Tcpt, p 1022(50)-1023(7).

67. This denial of the possibility of the offending occurring at the same time of the day on three consecutive days does not readily suggest that the judge should have had a reasonable doubt as to the complainant’s evidence, for a number of reasons.

68. First, the manner in which the appellant raised it suggested recent invention. Not only was it not a response supplied to the police when the allegations were clearly and precisely put to him, but it was not the subject of cross-examination of Ms AA. When it was first presented in the evidence in chief of the appellant, it appeared to be derived from a reconstruction of the actual rosters. That was potentially significant, because it suggested the absence of a contemporary recollection and hence an explanation for why it had not been provided to the police. However, the evidence given in cross-examination indicated a clear memory of the circumstances as to the days on which the appellant worked.

69. Secondly, the only significance of the events being described as occurring on three consecutive days lay in the consistency of that description in Ms AA’s evidence. There was nothing inherent in the conduct which suggested that it was less likely to have occurred on three occasions over four days or even over five days. That possibility was not raised with the complainant.

70. There remains the possibility that having heard the appellant’s evidence, the trial judge may have formed the view that it was credible and reliable. That possibility may be rejected because the judge found otherwise. However, the position of the trial judge was unusually important in making such an assessment. Not only were the events recounted more than three decades after they occurred, but the appellant demonstrated a variable ability to answer questions. His evidence extended over nine days, but he was unwell on the second day (day 21) and there was no hearing as a result of him attending a medical appointment on what would have been day 24. On day 25 (21 March 2019) on being asked a question as to evidence he had given a week ago, he responded:

“At the moment I don’t remember working at Parramatta.”

71. However, his answers on other days reveal no such difficulty in responding to questions. On one occasion the prosecutor asked a double question to which he responded, “you have asked two questions, which do you wish me to answer?”

72. Thus, this was a case where the dynamics of the trial, and the judge’s advantage in conducting the trial, were significant. It will be appropriate to return to ground 5 in dealing with general issues concerning the unreasonable verdict grounds.

Complainant BB: counts 4-7

Issues

73. Counts 4, 5 and 7 in the indictment involved allegations of rape by the appellant involving complainant Ms BB , pursuant to s 63 of the Crimes Act, as in force in the period from 3 February 1971 to 30 May 1973. Count 6 involved a charge of assault during the same period, contrary to s 61 of the Crimes Act, as then in force.

74. Ms BB was at Parramatta on two occasions, the first extending from 3 February 1971 until 23 September 1972 and the second from 22 November 1972 until 30 May 1973. [38] The records also revealed that she was removed to the harsher environment in an institution at Hay on three occasions within these two periods. It is clear that she knew Mr Valentine and provided a reasonably accurate description of him. She was the only female complainant whom the appellant remembered. When asked if Ms BB was a “particularly troublesome and recalcitrant inmate”, the appellant said: [39]

“[BB] I believe went out of her way to cause as much trouble as she possibly could. Whether she could help it or not, I’m not sure. But she did not confine herself to the good running of any situation or of most situations she found herself in.

Q.   So it would be fair to say that you considered her a particularly troublesome and recalcitrant inmate, correct?

A.   Correct.”

38. Judgment at [132].

39. Tcpt, p 1009(30).

75. Ms BB described three separate occasions when she was sexually assaulted by the appellant. The first instance she described as occurring after she had refused work and the supervising female officer reported her. The appellant attended. The judge described her evidence as to what occurred in the following terms:[40]

“He grabbed her, twisted her arm behind her back, pulled her down the stairs, and took her to the dungeon… She said the accused grabbed her top and tried to pull it and she swore at him. The accused told her to remove her clothes. He told her if she did not comply she would be bashed. He started hitting her in the face and bashed her head against the wall. She said she was crying. He placed his hand over her mouth. She complied and removed all of her clothing. She sat on the floor. The accused removed his lower clothing. He bashed her head on the ground and placed his hand over her mouth. He forcibly engaged in penile/vaginal intercourse until he ejaculated. She said she was sore and bruised. She believed she stayed in the dungeon for 72 hours.”

40. Judgment at [143].

76. The second occasion followed misbehaviour on her part in jumping on the beds in the dormitory. The appellant took her to an area known as the “isolation cell” and told her to take her clothes off. Having been bashed on the last occasion, she removed her clothes and he again had penile/vaginal intercourse until ejaculation.

77. The complainant alleged a third occasion in the “holding cell” although she was not sure how she came to be there. The judge’s description of the event taken from her evidence continued:

“147   … [Ms BB] said the accused entered the cell in a rage, she said he grabbed her head and started bashing her around the room, she said he bashed her head against the wall and then threw her across the room. The accused said, ‘I’ll teach you this time [BB]’. He told her to remove her clothes, she told him she hated his guts. He removed his clothing and placed his penis in her vagina until he ejaculated. She had lumps on her head. The evidence of this alleged rape and assault is relied upon by the Crown as constituting the elements of counts 6 and 7.

148   The accused returned an hour later and took her to see a psychiatrist. She did not tell him what happened. She was transferred to Hay that night.”

78. The appellant was convicted of each of the four charges.

79. Ground 6 alleged error on the part of the trial judge in refusing leave to defence counsel to cross-examine the complainant in respect of allegations made concerning sexual impropriety on the part of the Deputy Superintendent Gilford. Ground 7 alleged error in the conclusion that Ms BB provided “acceptable reasons” for failing to disclose the appellant’s sexual misconduct in statements made to the Royal Commission. A complaint about the judge’s demeanour findings in ground 8(a) was abandoned. The remaining ground, ground 8(b), alleged that each of the verdicts involving Ms BB was unreasonable. Again, it is convenient to deal with the first two specific grounds before turning to the question of unreasonable verdicts.

Ground 6 – cross examination about other sexual activity

80. Ground 6 alleged error on the part of the trial judge in failing to permit counsel for the appellant to cross-examine complainant Ms BB in relation to complaints about other criminal assaults on her whilst in Parramatta, not by the appellant, but by Deputy Superintendent Gilford. It was not disputed that the line of questioning would disclose or imply that the complainant had “taken part in” sexual activity, other than activity with the appellant. Such questioning would therefore fall within the prohibition in s 293(3) of the Criminal Procedure Act, there being no dispute that the proceedings were in respect of prescribed sexual offences, for the purposes of s 293(1). [41] It is, however, convenient to set out the first three subsections of s 293, together with subs (4)(a), which provided the exception to the exclusionary rule upon which counsel for the accused relied at trial. Those provisions read as follows:

    41. The provision has been renumbered since the trial and is now s 294CB.

293   Admissibility of evidence relating to sexual experience

(1)   This section applies to proceedings in respect of a prescribed sexual offence.

(2)   Evidence relating to the sexual reputation of the complainant is inadmissible.

(3)   Evidence that discloses or implies—

(a)   that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b)   has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4)   Subsection (3) does not apply—

(a)   if the evidence—

(i)   is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)   is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

…

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

81. Before considering the operation of those provisions in the current context, the following points should be made by way of introduction.

82. First, as recorded in some detail by Leeming JA in Jackmain (a pseudonym) v R,[42] this section has been the subject of extensive criticism, both judicial and by law reform agencies, on the basis of its potential to work unfairly against the interests of the accused. That may be so, as in Jackmain itself, where an accused, denying that sexual activity of the kind alleged by the complaint has occurred, seeks to rely on prior false or fabricated complaints made by the complainant involving other persons. No such issue arises in the present case.

    42. (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [99]-[135].

83. Secondly, although some of the criticisms supposedly turn upon the failure of the exclusionary rule to identify the purpose for which the evidence is sought to be adduced, purpose will not always be problematic. Indeed, in many cases purpose will have been addressed in respect of the preliminary question, namely whether the evidence would be relevant in the sense that “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”: Evidence Act 1995 (NSW), s 55(1). [43]

    43. See Jackmain at [18] (Bathurst CJ).

84. Thirdly, although the appellant’s submissions on this issue in this Court ran to some 63 paragraphs, the oral submissions before the trial judge on behalf of the accused ran to less than two pages of the transcript. The trial judge gave reasons for her ruling refusing to permit the proposed cross-examination of the complainant, which dealt with the submissions made to her, rather than the more detailed submissions made in this Court. Indeed, the submissions in this Court sought to rely upon passages in Ms BB’s oral evidence at trial, which material was not available at the time the judge gave her ruling. Although Ms BB later returned to the witness box to give some further brief evidence, the application to cross-examine on her complaints with respect to Mr Gilford was not renewed.

85. Fourthly, evidence as to the alleged offending and its surrounding circumstances is admissible under subs (4)(a); evidence of sexual activity on other occasions (that is, not at or about the time of the alleged offence) is not. When assessing the admissibility of evidence sought to be adduced by a defendant, it is well to remember that a complainant may also be prevented from giving such evidence.

86. The purpose articulated by counsel on the application at trial was, in substance, twofold, but in both respects it relied upon the correctness and truth of allegations made in relation to Mr Gilford before the Royal Commission. One purpose was to suggest to the complainant that her claims with respect to the appellant involved misattribution. That is, many years after the events in question, she had attributed to the appellant the acts of Mr Gilford. Secondly, counsel sought to rely upon the fact that she had made specific allegations with respect to Mr Gilford (and a Mr Maxwell at Hay) in passages in her evidence to the Royal Commission, which made no mention of Mr Valentine. The fact of the allegations against third parties, but not against the appellant, it was submitted, allowed the inference that her memory of the events was (as she largely conceded) patchy and unreliable.

87. The purpose of the proposed cross-examination may, however, be put to one side. As Gleeson CJ observed in R v Morgan [44] in considering the approach to be taken to an earlier version of this statutory provision, “the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)”. In this case, the prosecutor did not challenge the proposition that the defence of misattribution would be enhanced, and indeed might depend upon, the complainant having been raped or otherwise abused by someone else at Parramatta.

    44. (1993) 30 NSWLR 543 at 544F.

88. Accordingly, it is sufficient for present purposes to determine whether the evidence sought to be adduced fell within the exception in s 293(4)(a). The requirements of that provision were described in the submissions as involving a temporal element and an interconnection element. It is preferrable, however, to keep in the forefront of the consideration the statutory language. This required that the evidence sought to be adduced was evidence “… of sexual activity… taken part in by the complainant, at or about the time of the commission of the [offences alleged against the appellant]”, and were “of events that are alleged to form part of a connected set of circumstances in which the [charged offences] were committed”.

89. In her police statement prepared in 2014, Ms BB alleged that each of the three offences committed by the appellant occurred during the first period of her committal to Parramatta between 24 August 1971 and 11 March 1972, a period of some seven months. In her statement, she described, after her release from Parramatta on 23 September 1972, driving past the building one evening, seeing Mr Gilford out the front and throwing a rock at him. He responded indicating that he recognised her and would be “waiting for” her when she was returned. The abuse by Mr Gilford allegedly started on her second committal to Parramatta, in November 1972.

90. It is clear that, for historical offences where proceedings take place decades after the events the subject of the charges, and particularly where the victims may be deeply damaged individuals, imprecision as to dates is to be expected. Nevertheless, on the material before the trial judge at the time she ruled on the application, there was no evidence of complaint of sexual abuse by Mr Gilford during the seven-month period in which the conduct the subject of the charges was said to have occurred. However, it does not follow that the questions posed by subs (4)(a) will need to be judged against some lesser standard than if the events in question had been more recent in their occurrence. Indeed, where very young children are the victims, allegations of relatively recent events may involve a significant element of temporal imprecision. Further, while the purpose of the evidence (to base an assertion of misattribution) might mean that the temporal element was less significant than in other cases, it does not follow that the criterion is differently applied in such a case, the purpose being immaterial.

91. Further, in considering the criteria in subpars (i) and (ii) of subs (4)(a), questions of timing and interconnectedness are not to be judged simply on whether there is sufficient connection to make the evidence relevant to a defence, as that is a precondition to the application of the exclusionary rule.

92. In a judgment delivered on 15 February 2019, shortly after the completion of oral submissions, the judge noted that the appellant had relied upon evidence tendered in support of an earlier application, being exhibits VD2 and VDB on the voir dire. Exhibit VDB was Ms BB’s statement of 21 March 2014; Ex VD2 was a document of over 200 pages, which had been tendered on an objection to the evidence of Ms BB’s husband. Apart from her statement and statement by her husband of more than 20 years, which included complaint evidence involving the appellant, the relevant material was to be found in three pages of oral evidence to the Royal Commission. It is convenient to set out part of the complainant’s statement to the Royal Commission, which included the following passages under the heading “Parramatta Girls”:

“17   I was taken to Parramatta Girls at about 14-15-years-old and I stayed there until I was about 18 years old.

18   I was repeatedly bashed. I was also sexually abused. I remember there was a man called Superintendent GILFORD and another man called Mr VALENTINE. He once threw me down three flights of stairs. I remember that the building was very old, turn of the century or probably older and there were a lot of winding stairs through it.

19   I remember that if I played up or did anything wrong I was thrown down into what I called the dungeons where I was locked in solitary confinement or segregation, which is even worse.

20   Mr GILFORD used to call me a “black dog”. He used to say to me: ‘you’ll never amount to anything. You’ll only amount to being a black dog’. I remember he had me in the holding room one day after I had tried to run away. He said to me: ‘right, you’re not even worth spitting on’. He then bashed me around the cell and raped me. He would often rape me. He was the main offender.

21   I never reported the abuse by Mr GILFORD and Mr VALENTINE to anyone at the time. I used to talk about it with the other girls, we would just talk amongst ourselves. I know that some of the other girls at Parramatta Girls were being sexually assaulted by Mr Gilford and Mr Valentine. I often heard some of the other girls say that they were raped by Mr Gilford. We were too scared to say anything. We used to think no-one would believe us outside the walls of the home.”

93. Turning to her oral evidence before the Royal Commission, she was questioned in relation to her statement that she was repeatedly bashed and sexually abused by Mr Gilford and Mr Valentine and had said, ambiguously, “he once threw me down three flights of stairs”. She was asked to clarify whether it was both of them and she described both grabbing her and throwing her down the stairs. She continued:

“I went down three flights of stairs. They were the two that were cruel. They were the two that raped me in the holding cell up the front.”

94. Later in her evidence she was taken back to the statement that she was repeatedly bashed and sexually abused and asked if the sexual abuse was by Mr Gilford. She responded that she was “referring to both of them”; “I’m referring to them both because that’s what they both did – both Valentine and Gilford used to do that”. She was asked whether “they” referred to them doing something together or separately. None of the answers given to the Commissioner clarified the ambiguities.

95. There were two separate segments in her examination at the Commission, one by counsel for Mr Valentine who suggested that she had confused Mr Valentine with Mr Monaghan. She responded:

“A.   No, I don’t agree with it, because I remember Mr Valentine. He had a black beard when he was younger, when I was there, and I know what he looked like.

Q.   And what did Mr Monaghan look like?

A.   He was an older fellow, older than Valentine. Valentine had a – Valentine – I saw him one day with a baby there. I knew he was younger than Mr Monaghan. He had a little baby in his arms one day. He was showing us girls.

Q.   I’m just going to put it to you again. I’m just suggesting to you that because of the long period of time your memory about the role of Mr Valentine and, say, someone else has been confused. Would you agree or disagree with that?

A.   No. I disagree totally because my memory – my memory of what happened to me has never left my head.”

96. The trial judge commenced by considering the question of relevance. She stated: [45]

“The issue at trial [is] whether any of the alleged offences occurred. The evidence of the alleged offending to be led by the prosecution will not disclose any other sexual experience or activity. It is not suggested that there is any evidence or suggestion to support that the complainant lied about the alleged offending. On behalf of the accused, it is submitted that there has been conflation of events involving the accused and Mr Gilford.

That there was other alleged offending by another person at the same location, but at different times, is not of itself relevant. Even identifying that other person as the more significant offender, of more than one offender, does not elevate it to being relevant.

…

The accused submits that by stating that offending by someone else was worse than that of the accused, that it forms a required connected set of circumstances as both [were] institutional abuse but of different gravity thereby casting doubt over the allegations concerning the accused.”

45. Judgment 15/02/19, p 6.

97. After referring to a number of authorities, the judge referred to the question of relevance stating: [46]

“As I said earlier, relevance must be established. Thereafter, both limbs of s 293(4) must be established, and additionally the probative value of the evidence must outweigh the distress, humiliation or embarrassment that the complainant might suffer.

The relevance of the evidence is advanced as proving that the accused did not commit the alleged offences.

I do not accept the proposed evidence has this relevance. However, in the event that I am wrong, I do not accept that the evidence satisfies either limb of s 293(4)(a), nor does it possess a requisite probative value. The evidence is not admissible.”

46. Judgment at p 8.

98. On the appeal, counsel for the appellant submitted that the judge was in error in dismissing the proposed cross-examination as irrelevant. In my view, that submission should be accepted. In considering relevance, the purpose of the proposed cross-examination must be taken into account. The fact that the defence was not that she had not been raped, but that she had been raped by another man, necessarily requires a suggestion that there was sexual activity involving someone other than the accused. Accordingly, questions designed to elicit such evidence were relevant. Given that circumstance, the exclusionary rule in s 293 was engaged. Accordingly, the critical question is whether the exception in subs (4)(a) was engaged.

99. There was no attempt to question Ms BB on the voir dire. The material relied upon was the police statement she had prepared in 2014 and her evidence to the Royal Commission. That evidence supported the conclusion that she had been physically abused and raped by Mr Gilford. However, the evidence did not support the conclusion that sexual activity engaged in by Mr Gilford occurred at or about the time of the offences alleged against the appellant. Rather, her primary evidence was that they occurred months apart. The ambiguity in her oral evidence at the Commission was resolved by the denial that they both raped together or in circumstances which were broadly contemporaneous. Yet that is the intended scope of criterion (i) which requires that the other sexual activity occurred “at or about the time” as the offending. There was no material before the trial judge to support such a conclusion and she was correct to find that it was not made out.

230. Although no question was put in those terms in cross-examination, Ms AA was cross-examined in detail as to the opportunities she had had to complain and to name the appellant as her assailant, but had not done so. It was also put to her in conclusion that Mr Valentine never touched her. [143]

     143. Tcpt, p 121(45).

231. The evidence that Ms AA knew the appellant by name was persuasive. She said that over the three months during which she was at Parramatta she was required to say goodnight to the officers as they walked past, addressing them by name. [144] She explained in cross-examination the circumstances and the reasons why she might have, but did not in fact, complain earlier by naming the appellant. It is possible that a judge hearing the evidence might have found it unpersuasive, but reading the transcript, the answers given were not such as to raise a doubt as to reliability or honesty.

     144. Tcpt, p 123(25)-(33).

232. Further, the conduct complained of had been the subject of an early complaint to her sister. Again, the appellant was not named, but no doubt the name would have been insignificant in the context.

233. In his denial of the conduct, the appellant submitted that the roster system did not require him to work three mornings in a row. In my view, that was a detail which was of very little significance. It is quite possible that the offending took place, but over a period of more than three days; the evidence of rostering was incomplete and not supported by documentary evidence, nor even the reconstructed roster of which the appellant gave evidence, and there was evidence that the rosters were not always followed.

234. I do not entertain a reasonable doubt in relation to the offending, the subject of complaint by Ms AA. The unreasonable verdict grounds in respect of the convictions on counts 1, 2 and 3 should be rejected.

Complainant BB

236. Ms BB was challenged both as to the occurrence of the alleged assaults and the possibility that it was in fact Mr Gilford who assaulted her and not the appellant.

237. Aspects of Ms BB ’s evidence were the subject of concerted challenge in cross-examination. The challenges included suggestions that in various respects her description of the buildings and the layout of the rooms at Parramatta were inaccurate. That may have been so to an extent, but there was no doubt that Ms BB had spent extended time at Parramatta and that the appellant was working there during those periods.

238. There were suggestions that she did not recall the appellant’s accent, and that her description of Mr Gilford was inaccurate. She was unable to be sure as to the dates on which certain events took place, as between the first and second periods she spent at Parramatta. Counsel described her evidence as “entirely unreliable” but, as noted above, that does not appear from a reading of the transcript. The assaults which she described were cruel and entirely memorable. In cross-examination it was put to Ms BB that she had told police in 2014 that she “lived with the memory of what Mr Valentine did to [her], everyday”: she replied “yes”. [145] She agreed that other superintendents, including Mr Gilford (but not Mr Monaghan), had assaulted her violently. [146]

     145. Tcpt, p 187(32)-(38).

     146. Tcpt, p 193(20)-(38).

239. The circumstances were not such as to render the identity of her assailant uncertain. Taken in isolation, the level of physical violence and the sexual abuse may well have seemed implausible. However, the evidence that the appellant on multiple occasions engaged in physical violence and sexual assaults on inmates of the institutions at which he worked removes that potential source of doubt.

240. Having read the whole of Ms BB ’s evidence at trial, and the appellant’s denials, I do not entertain a reasonable doubt as to the truth of her complaints. Accordingly, I would reject ground 8(b) challenging each of counts 4, 5, 6 and 7 as unreasonable.

Complainant CC

241. The specific complaint of error in relation to Ms CC related to her identification of the appellant as the perpetrator of various assaults upon her. That complaint has been dealt with above and rejected. Ms CC was 15 years of age when admitted to Parramatta and was detained there for some six months. Ms CC had not been involved with the Royal Commission and denied knowledge of the evidence given at it. She did, however, contact the solicitor, Peter Kelso, to pursue compensation. She denied that Mr Kelso had told her that Mr Valentine was a person of interest and said that she told him that. [147] She distinguished the appellant and Mr Gilford reasonably accurately, stating that Mr Gilford did not have a beard but the appellant did, and that the appellant was short and Mr Gilford was tall. [148] She denied that she had confused Mr Gilford and the appellant, stating that Mr Gilford “never sexually abused me”. [149]

     147. Tcpt, p 260(45).

     148. Tcpt, p 286(10).

     149. Tcpt, p 278(33).

242. As with other complainants, the cross-examination raised the possibility of suggestion and collaboration. In submissions, counsel did rely upon the availability of compensation from the government as a reason why the complainants may have nominated the appellant or concocted evidence as to his offences. However, that reasoning depended upon the complainant having identified the appellant as her assailant, in submissions seeking compensation. In most cases, complainants were cross-examined as to why they had not named the appellant on earlier occasions when the opportunity arose. That challenge to the reliability of their evidence was inconsistent with the proposition that they named the appellant in their police statements for the purposes of obtaining compensation.

243. Beyond the submissions as to unreliability of the complainant’s evidence and an assertion that there was “no basis to reject the appellant’s exculpatory account of himself”, the submissions in relation to this ground went no further than the challenge to the identification of the appellant as the perpetrator of the offences.

244. Having read Ms CC’s evidence, the appellant’s denial and taking into account the complainant’s uncertainty as to the precise location of the sick bay in which particular offending occurred, I see no reason to entertain a reasonable doubt as to the allegations made by the complainant. Again, the trial judge might have formed a view as to the complainant’s unreliability or untruthfulness based on demeanour, but no such doubts arise from the transcript. In fact, the judge did not form such a view. Accordingly, ground 10 must be rejected.

Conclusions

245. For the reasons set out above, the appeal with respect to the conviction for indecent assault (count 24) with respect to complainant Ms EE should be upheld and the conviction quashed.

246. The other grounds having been rejected with respect to each of the other convictions, the appellant should have leave to appeal but the appeal should otherwise be dismissed. There should be a verdict of acquittal with respect to count 24.

247. It follows that the aggregate sentence was imposed on a legally incorrect basis in that the indicative sentences included a putative sentence of one year, nine months imprisonment with respect to count 24. The question for this Court is whether the removal of that conviction should lead to a variation of the aggregate sentence of 22 years’ imprisonment with a non-parole period of 13 years. On one view, the change in the basis on which the aggregate sentence was imposed may be thought to be insignificant in the overall context of the offending. Thus, the number of convictions is reduced from 21 to 20 and the total of the aggregation of the indicative sentences is reduced from some 75 years by less than two years. A proportionate reduction of the non-parole period for the aggregate sentence would be three months; the full sentence might be reduced by five months. On another view, the change would not warrant any lesser sentence, given the magnitude and severity of the other offending.

248. The parties should have an opportunity to address the Court with respect to this issue. In the first instance, the parties should have an opportunity to file brief written submissions; if there is a difference of views, a party wishing to be heard orally should give an indication to that effect in the written submissions. If a common position is reached, the Court should be so advised.

Orders

249. I propose the following orders:

1. Grant the applicant leave to appeal from the convictions entered in the District Court on the indictment dated 11 February 2019.

2. Uphold the appeal with respect to the conviction on count 24, quash the conviction and enter a verdict of acquittal on that count.

3. With respect to the aggregate sentence –

1. grant leave to the appellant to file written submissions with respect to any possible reduction of the aggregate sentence within four weeks of the date of this judgment;

2. grant leave to the Director to file submissions in reply within six weeks of the date of this judgment;

3. direct that if either party wishes to be heard orally with respect to a variation of the sentence, an application should be made within 14 days of the filing of the Director’s submissions in response.

4. Otherwise dismiss the appeal.

250. BUTTON J: I have had the advantage of reading the judgment of Basten AJA in draft. I agree with the orders proposed and with the reasons of his Honour, subject to what follows.

251. Of significance to my own assessment of the asserted unreasonableness of the verdicts of guilty is the tendency evidence. At the hearing of the appeal, counsel for the appellant conceded that we are entitled to make use of it as we see fit, whatever was the approach of the trial judge. Even taking a cautious approach to the tendency evidence (in light of the submissions of the appellant about possible mis-identification and contamination), the fact that six adult complainants asserted on oath that it was the appellant who sexually assaulted them many years ago when they were all teenagers in his care is of substantial importance to my assessment of whether I experience a reasonable doubt about any of the convictions. In that sense, it could be that I adopt a less restrictive approach to the tendency evidence than that adopted by his Honour at [223] and following.

252. I have also had the benefit of reading the judgment of Wilson J in draft, regarding the divergent approach of her Honour to count 24. Although the matter is finally balanced in my mind, ultimately, bearing in mind the stringency of the criminal onus and standard of proof that one must apply when undertaking this exercise in an intermediate appellate court, I agree with Basten AJA that the conviction on count 24 should be quashed.”

253. WILSON J: I have had the advantage of reading the judgment of Basten AJA in draft, and gratefully refer to his Honour’s discussion of the evidence at trial, and his discussion and proposed disposition of the grounds advanced to this Court. With one exception, I agree with his Honour’s reasons and conclusions. The exception is as to the appeal against conviction with respect to count 24 of the indictment presented against the appellant, raised by ground 14. Basten AJA would uphold the appeal with respect to that count, quash the conviction, and invite submissions on re-sentence. For the reasons that follow, I would dismiss the appeal against conviction for count 24, as I would dismiss the balance of the appeal.

254. The principles to be applied in determining a ground complaining that a verdict returned by a trial judge is unreasonable were considered recently in GS v R [2022] NSWCCA 225, wherein Beech-Jones CJ at CL said, at [50] – [53]:

“Consistent with M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63, Dansie describes the function of an intermediate court of criminal appeal considering this ground of appeal as requiring ‘an independent assessment of the whole of the evidence [and then] ask[ing] itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty’ (at [15]). In Dansie it was noted that such a court ‘will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt’ at [15] citing, inter alia, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [82]). Although the intermediate court of criminal appeal must make its own assessment, it ‘will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings’ (at [16]).

As for the advantage enjoyed by the trial judge over the intermediate court of criminal appeal in seeing and hearing the evidence at trial, in Dansie it was found that that ‘will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial’ (at [17]). It is notable that that advantage does not depend on the reasons of the trial judge. Thus, the scope of the advantage is not confined by any express statement by the trial judge describing, or even disclaiming, the advantages they enjoyed as such.

In Dansie it was found that, as the Crown case was circumstantial and consisted mostly of the transcript of largely unchallenged testimony and the accused did not give evidence, the advantage enjoyed by the trial judge was slight. By contrast, in this case, the advantage enjoyed by the trial judge over this Court was significant. The Crown case consisted of evidence given by the complainant in recorded format and in person before the trial judge. It was tested in cross-examination.

Thus, in a case such as this, this Court’s assessment proceeds upon the assumption that the evidence of PS was assessed to be credible and reliable, as it in fact was, but then examines the record of the trial ‘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’ (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]).”

255. There is, as the submissions made by the applicant assert, and Basten AJA’s discussion at [138] – [148] makes clear, a discrepancy or inadequacy in the evidence of Ms EE concerning count 24. Basten AJA is of the view that the discrepancy is such that the tribunal of fact, in this instance the trial judge, should have entertained a reasonable doubt about Ms EE’s evidence and returned a verdict of not guilty. His Honour considers that the tendency evidence relied upon by the Crown could not have changed that outcome.

256. The complaint made by Ms EE, who was 15 or 16 at the relevant time, relates to an indecent assault contrary to the now repealed s 76 of the Crimes Act 1900 (NSW). It reflects Ms EE’s allegation that, at a time when she was in the shower area at Parramatta about to dress, prior to transfer to the Royal Prince Alfred Hospital for a post-surgical examination, the appellant approached her from behind and inserted his finger into her vagina[150] . In her evidence Ms EE said that she had been taken to the hospital for a procedure and, following that, she returned for a check-up about 4 weeks afterwards. She thought there was another visit from what she had been told by others but had no memory of it.

     150. Digital penetration of the vagina did not constitute an offence of rape or carnal knowledge pursuant to the Crimes Act as it was in force at the time, and the act was thus charged as indecent assault.

257. Ms EE deposed that it was the appellant who called her to go into the shower and, although she did not realise it at the time, he followed her as she made her way to the showers. Ms EE was the only girl using the facility at the time. She showered and then:

“I walked around to the other side of the bench like we used to, where we would leave our clothes on the bench.  And I had the towel was sort of half wrapped around me, because I wiped myself, and I bent down to get my knickers to put on, and that's I've found Mr Valentine, I felt a hand on my back, and that's when I felt Mr ‑ and turned around and seen Mr Valentine.  And I started crying, and I did swear, I remember that. […] and I felt his finger go into my vagina”. [151]

151. Transcript of 27 February 2019, T441:30-41.

258. Ms EE continued:

“I just felt a hand on my back, and as I turned around, I felt something go into my vagina.  And I looked around, and it was Mr Valentine. I did start to cry, and he told me to stop being a cry baby, to get dressed, and go and wait at the end of the cover way, someone would be there shortly to pick me up”. [152]

152. Ibid, T442:24-27.

259. She said that the appellant was often in the shower area.

260. Although Ms EE had not had the information when making her statement to police, hospital records established that she was admitted to hospital for a surgical procedure on 6 April 1972, being discharged the following day. There were three post-operative examinations, on 9 May 1972, 23 May 1972, and 29 June 1972. By reference to her recollection that the assault occurred immediately before the check-up held 4 weeks after the procedure was carried out, it must have been 9 May 1972 when the assault she described took place.

261. In cross-examination it was put to Ms EE that the appellant was not at Parramatta on that day:

“Q. In fairness to you madam, the person Mr Frank Valentine who you identified was on leave from 8 May 1972 to 28 May 1972, he wasn't in the institution on the day that you were taken to Parramatta, to the Royal Prince Alfred Hospital on that second occasion?

A. Yes, he was”. [153]

153. Ibid, T457:32-36.

262. Consistent with the cross-examiner’s question, other evidence established that the appellant had been granted leave between the dates nominated by counsel in cross-examination.

263. That evidence is certainly enough to raise a concern as to the accuracy of Ms EE’s recollection and prompt the tribunal of fact to examine her and any other evidence relevant to count 24 very carefully.

264. Some of that evidence was given by the appellant. He denied an assault as described by Ms EE, as he denied all allegations against him. He also vehemently denied that he had ever attended the shower area at Parramatta. Contrary to his testimony on that point there was evidence from a number of witnesses other than Ms EE as to the appellant’s attendance in the shower area, and the trial judge, having seen the witnesses testify before her, rejected the appellant’s assertions in that regard. She was satisfied that he had visited and been in the shower area from time to time.

265. The appellant accepted in his evidence that he had a key to Parramatta and could come and go as desired. He also said that there were occasions when he had attended the institution when not rostered or otherwise due to do so. He conceded that he was called in from time to time by junior officers, even though he was not on duty. That the appellant attended Parramatta when he was not required to be there by roster is a proposition supported by Ex AL, a performance assessment from the relevant period that said of the appellant:

“He is on duty as required by the roster […] which is an exacting one, and does not hesitate to spend additional time on the institution when circumstances require it.”

266. The appellant said that the assessment recorded in Ex AL was not accurate, but her Honour accepted the veracity of the contemporaneous written note over the appellant’s denial.

266. The appellant also said that part of his role was to perform medical escorts for girls attending medical appointments, although he said he would not usually go to city hospitals such as the Royal Prince Alfred Hospital, as it took up too much time.

267. The trial judge concluded that the fact that the appellant was on leave was not determinative of count 24, “given the evidence of his attendance at Parramatta” when not required to be there. She continued:

“The involvement of the accused in providing hospital transport is not challenged although the accused challenged he would be involved in city hospitals as opposed to the local hospital. He was utilised as an escort to hospital visits. The evidence establishes he did frequent the institution when not on duty. I have considered the roster evidence in considering the allegation. I have also borne in mind the delay before making a complaint and that there was no complaint until there was publicity about Parramatta. However, the publicity she was exposed to mentioned Mr ‘Green’, not the accused and not Mr Gilford. Ms EE said she was not sure if she mentioned the accused to the Royal Commission. Also, Ms EE indicated she did have access to her records when she made her statement. These records would not have contaminated her account.

I do not find that she was unreliable in recalling the asserted event. I find she gave a clear account although with some not unnatural reticence. The accused denied attending the shower room ever in his period at Parramatta. There are descriptions from other witnesses of the accused attending the shower room.

I have considered Ms EE's evidence against the submissions concerning issues impacting on reliability. I do not conclude that there is a reasonable possibility of mistaken identification or of untruth concerning the nomination of the accused.

I have not had regard to the asserted tendency. The absence of evidence does not cause me to entertain a reasonable doubt. I accept that the offence is proven beyond reasonable doubt.” [154]

154. Judgment of 9 April 2019, AB140:448-451.

269. On that analysis, her Honour’s assessment of the complainant was a significant feature, and one where the trial judge has the advantage over this Court. Bearing in mind her Honour’s better opportunity to assess Ms EE’s reliability, and having regard to all relevant evidence, I agree with her Honour’s assessment and do not experience a reasonable doubt. Particularly when regard is had to the tendency evidence relied upon by the Crown, but not considered by the trial judge, it could not be said that it is unlikely that this assault occurred as and when Ms EE deposed that it did.

270. I would dismiss ground 14.

271. Basten AJA considered some matters relevant to grounds 11, 12 and 13 when discussing ground 14 but, having regard to his conclusion as to that ground, his Honour did not formally determine them. I have concluded that these grounds should be dismissed. Since I am the minority with respect to ground 14, it is unnecessary to set out my reasoning with respect to the balance of the grounds relevant to Ms EE.

272. Given my differing view as to the disposition of ground 14, I would propose orders as follows:

1. Grant leave to appeal; and

2. Dismiss the appeal.

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Endnotes

Decision last updated: 10 March 2023