Winter v R - [2013] NSWCCA 231

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Winter v R [2013] NSWCCA 231
Hearing dates: 23 September 2013
Decision date: 18 October 2013
Before: Hoeben CJ at CL at [1]
Bellew J at [4]
Barr AJ at [200]
Decision:
(1) An extension of time in which to file the notice of appeal against conviction is refused.
(2) An extension of time in which to file the notice of application for leave to appeal against sentence is refused.

Catchwords:
CRIMINAL LAW - APPEAL - application for extension of time - where delay of more than six years - approach to be taken in determining application for extension of time - necessity for the applicant to adduce evidence which fully explains the delay

CRIMINAL LAW - APPEAL - incompetence of counsel - principles to be applied
CRIMINAL LAW - SENTENCE - where some offences for which appellant convicted had been repealed - approach to be taken in sentencing for such offences - whether sentence manifestly excessive
Legislation Cited: Crimes Act NSW 1900
Crimes Amendment (Sexual Offences) Act NSW 2003
Criminal Appeal Act NSW 1912
Director of Public Prosecutions Act NSW 1986
Evidence Act NSW 1995
Cases Cited: FB v R [2011] NSWCCA 217
Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
Han v R [2009] NSWCCA 300
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Ignjatic v R (1993) 68 A Crim R 333
Lodhi v R [2007] NSWCCA 360
Montero v R [2013] NSWCCA 214
Orkopoulos v R [2009] NSWCCA 213
PFC v R [2011] NSWCCA 275
RLS v R [2012] NSWCCA 236
R v AB (CCA (NSW) 7 July 1997 (unreported)
R v Beserick (1993) 66 A Crim R 419
R v Birks (1990) 19 NSWLR 677
R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Dinsdale (2000) 202 CLR 321
R v Dunn [2004] NSWCCA 346
R v Fisk CCA (NSW) 21 July 1998 (unreported)
R v Glennon (1992) 173 CLR 592
R v Gregory [2002] NSWCCA 199
R v JCW (2000) 1112 A Crim R 466
R v Katon [2008] NSWCCA 228
Mottram v R [2009] NSWCCA 210
R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88
R v PWD [2010] NSWCCA 209
R v Unger [1977] 2 NSWLR 990
TKWJ v R [2002] HCA 46; 212 CLR 124
Category: Principal judgment
Parties: Neal Richard Winter - Applicant
Regina - Respondent
Representation: Counsel:
Mr I Wallach - Applicant
Ms H Wilson - Crown
Solicitors:
Mr H Ginges - Applicant
Mr S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s): 2004 / 13377
Publication restriction: Nil
Decision under appeal

Date of Decision:

2006-06-23 00:00:00

Before:

Berman DCJ

Judgment

INTRODUCTION

HOEBEN CJ at CL: I agree with the reasons of Bellew J and the orders which he proposes. I wish, however, to make some additional remarks.

In relation to the evidence of counsel for the appellant at trial, Mr Watts, I fully endorse the observations of Bellew J. I found him to be an impressive witness. His responses to questions were considered, deliberate and frank. I have no hesitation in accepting not only the truth of his evidence, but its reliability.

The second issue I wish to say something about are the conviction grounds of appeal which assert both apprehended and actual bias on the part of the trial judge. As Bellew J has made clear in his comprehensive reasons, these grounds of appeal were entirely without merit. They should not have been raised, let alone argued. Such grounds of appeal raise serious issues which should only be pursued if there is a basis in fact or law for them. Such was not the case here.

BELLEW J: On 13 March 2006 the applicant was arraigned before his Honour Judge Berman and a jury in the District Court on an indictment containing 32 counts, each of which alleged a separate sexual offence committed against one of three complainants.

On 28 April 2006 the jury returned verdicts of guilty on all counts with the exception of counts 19 to 23 inclusive, in respect of which they were unable to reach a verdict.

On 23 June 2006 his Honour imposed an overall sentence of 16 years imprisonment commencing on 28 April 2006 and expiring on 27 April 2022, with an overall non-parole period of 12 years.

The applicant has served some of the individual sentences imposed. As matters presently stand, his earliest release date is 27 April 2018.

THE APPLICATION FOR EXTENSION OF TIME

The evidence

The present notice of appeal was filed on 23 April 2013, almost 7 years after the jury returned their verdicts. It was accompanied by a notice of application for extension of time filed on the same day. The delay is, on any view, significant.

An affidavit of the applicant's solicitor, Mr Ginges, was relied upon in support of the application for an extension of time. Whilst I do not propose to recount the entirety of the contents of that affidavit, the following matters are relevant.

The applicant lodged a notice of intention to appeal on 22 August 2006. On 29 November 2006 Mr Ginges received an assignment from the Legal Aid Commission to brief junior counsel to seek advice as to the merits of an appeal against conviction and sentence. No less than four extensions of time were subsequently granted by the Registrar, which had the effect of giving the applicant until 20 August 2007 (some 14 months post sentence) to lodge a notice of appeal.

On 26 March 2008, almost 2 years after the jury's verdicts, Mr Ginges received an advice from counsel that an appeal against conviction had no merit. That advice apparently did not address the issue of whether there was merit in an application for leave to appeal against sentence. Mr Ginges' affidavit advances, as reasons for the delay in obtaining counsel's advice, difficulties in providing counsel with the trial transcript, along with the fact that the applicant was moved to and from various correctional centres. Those matters do not, in my view, provide an adequate explanation for the fact that it took almost two years to obtain counsel's advice.

Notwithstanding counsel's advice that there was no merit in an appeal against conviction, Mr Ginges received instructions from the applicant to seek an extension of the earlier grant of legal aid to allow the applicant to pursue such an appeal. Unsurprisingly, the application was refused.

In about April 2008 the applicant instructed Mr Ginges to make inquiries as to the availability of counsel who may be able to be retained privately. It was not until August 2009, some 16 months later, that senior and junior counsel were privately retained to advise as to the merits of an appeal against both conviction and sentence. The affidavit of Mr Ginges is silent as to what steps were taken in that 16 month period to further the applicant's proposed appeal.

In February 2010, 6 months after the retention of senior counsel, Mr Ginges obtained an advice that there were good prospects of success in an appeal against sentence. Mr Ginges' affidavit records that senior counsel did not advise that there were good prospects of a successful appeal against conviction. On 30 March 2010, which is now more than three years ago, Mr Ginges was provided with what were described in his affidavit as "draft appeal documents", along with submissions in support of an application for leave to appeal against sentence.

Mr Ginges' affidavit does not set out, in any detail, what happened thereafter in an effort to progress the matter. A conference apparently took place with the applicant on 24 May 2010 but other than that, the affidavit records little more than the fact that for the 17 month period between June 2010 and October/November 2011, Mr Ginges received "further correspondence from the applicant in support of his application to appeal against conviction" which was "provided to several junior counsel". On the basis of the affidavit, no substantive steps were taken to prosecute any appeal during that period.

I accept that between about October 2011 and February 2012 there were personal matters which prevented Mr Ginges from giving any attention to the applicant's case. However on the basis of his affidavit, and leaving aside the month of July 2012 during which Mr Ginges was ill, the only work done in the 8 months between February and October 2012 involved Mr Ginges re-reading portions of the trial transcript and the advices which had been obtained from counsel up to that time. None of those advices suggested that there was merit in an appeal against conviction. In fact the first of them specifically said that there was not.

I accept that in October 2012, personal matters intervened which prevented Mr Ginges from giving any further attention to the matter until the early part of 2013, shortly after which the relevant documents were filed.

The principles applicable to an application for extension of time

In RLS v R [2012] NSWCCA 236, with the concurrence of McClellan CJ at CL and Johnson J, I made a number of observations (commencing at [21]) regarding this Court's consistent emphasis upon the need to pay proper regard to the time limits imposed by the Criminal Appeal Act 1912. This Court recently gave further consideration to those principles in Montero v R [2013] NSWCCA 214. In that case Leeming JA said (at [2]):

"There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality."

His Honour then made specific reference to the decision of Street CJ in R v Unger [1977] 2 NSWLR 990 at 995-996:

"This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and

statutory concept - it finds no basis in the common law itself. This

finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law."

Leeming JA went on to observe that the principles in Unger had been applied in this court on a number of occasions including in R v Gregory [2002] NSWCCA 199 at [38]-[45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19]-[24]. His Honour noted (at [6]) that these (and other) decisions serve as a recognition that exceptional circumstances must be shown to warrant departing from the principle of finality. He went on to observe (at [7]) that what will amount to the requisite exceptional circumstances cannot be defined exhaustively. For those reasons, as well as for additional reasons given by RA Hulme J, his Honour concluded (at [8]) that an extension of time within which to bring an application for leave to appeal against sentence should be refused in that case.

RA Hulme J (with whom Button J agreed) made reference (at [61]) to an acceptance by counsel for the applicant in that case that if the grounds of appeal were found to have no merit, the Court should refuse an extension of time. In circumstances where the Court had not had the benefit of full argument on the point, his Honour expressed a preference (at [64]) not to reach a concluded view on the issue arising from Unger which had been the subject of observations by Leeming JA. His Honour also noted that it was unnecessary for him to express a concluded view for the purposes of resolving the appeal which was before the Court.

The submissions of the parties

Counsel for the applicant, whilst acknowledging the considerable delay, submitted that the court should adopt the approach of RA Hulme J in Montero (supra). In other words, counsel submitted that the court should determine, in the first instance, whether or not there was merit in any of the grounds which were advanced. The approach accepted that if a conclusion were reached that those grounds had no merit, an extension of time would be refused.

The Crown submitted that a stricter approach, generally in accordance with that of Leeming JA, was appropriate. In advancing this position, the Crown emphasised the length of the delay and lack of proper explanation, and submitted that on those bases alone an extension of time ought be refused.

Consideration and conclusion

It is now more than 7 years since the applicant was sentenced. The delay in bringing the appeal has not been adequately explained. In the period which elapsed between the applicant being found guilty and the filing of the present notice of appeal, the only substantive steps taken to prosecute an appeal were obtaining two advices from counsel, neither of which expressed the view that there was merit in an appeal against conviction. As far as an application for leave to appeal against sentence is concerned, the evidence establishes that the necessary documents, including draft submissions, were provided to Mr Ginges in March 2010. No explanation has been proffered as to why those documents were not filed following their receipt.

As was the case in Montero, the approach which should be taken by this Court in considering whether an extension of time should be granted was not fully argued on the hearing of this appeal. For that reason the approach taken by RA Hulme J in Montero should, in my view, be adopted in the present case. The Court should consider in the first instance whether any of the pleaded grounds have merit, before then proceeding to consider whether an extension of time should be granted.

One final observation should be made in relation to this issue. For the reasons I have already outlined, the affidavit evidence adduced in the present case to explain the delay was inadequate. In any case where an extension of time is sought, and particularly when the delay is as extensive as it is in the present case, there is an onus placed upon the applicant to adduce evidence which fully explains that delay. That explanation must necessarily include a clear articulation of the steps taken to prosecute the appeal, and a comprehensive explanation for any periods of apparent inactivity.

THE CROWN CASE

As previously noted, the applicant stood trial on an indictment containing 32 counts involving allegations made by three separate victims. The first victim was the person referred to in counts 1 to 4, the second was the person referred to in counts 5 to 18 and the third was the person referred to in counts 19 to 32. At the hearing of the appeal, counsel for the Crown explained that notwithstanding that the various victims had been referred to only by their initials, they had experienced some difficulties in their local community as a consequence of their identities being discovered. In these circumstances, and at the Crown's request, I have referred to the respective victims as "victim 1" (in respect of counts 1 to 4), "victim 2" (in respect of counts 5 to 18) and "victim 3" (in respect of counts 19 to 32).

The following summary of the Crown case is taken from the sentencing remarks of the primary judge.

Counts 1 TO 4

Background

Each of counts 1 to 4 alleged an offence of aggravated indecent assault against victim 1, contrary to s. 61M(1) of the Crimes Act. In each case the circumstance of aggravation was the age of victim 1 who was either 14 or 15 years old at the relevant time. The maximum penalty for each offence is 7 years imprisonment.

Victim 1's mother met the applicant when they both worked for the same employer, at which time the applicant told victim 1's mother that he taught music privately. In early 1992, victim 1's mother arranged for the applicant to give victim 1 piano lessons which were to take place at the applicant's home each Saturday.

Victim 1 gave evidence that after the first incident which formed the basis of count 1 in the indictment, the applicant regularly engaged in sexual activity with him. The applicant was able to establish his association with victim 1 by developing the trust of victim 1's parents. Having done so, he proceeded to pursue various social activities with victim 1 which included mowing the lawns at the applicant's home, watching videos, shopping and travelling.

Over time, the applicant created situations where he was alone with victim 1 so that he was able to engage in repeated sexual activity with him. Victim 1 told the applicant that he wanted to stop their "relationship" on religious grounds but despite this, the applicant persisted in sexual activity with victim 1 until October 1992. At that time the association was ended at the insistence of victim 1's father, due to his concern about the nature and extent of the contact between his son and the applicant. When asked in 1992, victim 1 denied any impropriety on the part of the applicant. He did not make any complaint about the applicant's conduct until 2003, at which time he raised the matter with his father.

Against this background, counts 1 to 4 encompassed the following conduct.

Count 1

Following a piano lesson on a Saturday in early 1992, the applicant gave victim 1 a massage on the lounge at this home. The applicant masturbated victim 1, who was then 14, to ejaculation.

Count 2

Between March and November 1992 the applicant visited victim 1's home one evening. Victim 1 was sick in bed. The applicant went into victim 1's bedroom and masturbated victim 1 to ejaculation.

Count 3

In late June or early July 1992 the applicant took victim 1 to see a show at the Sydney Opera House. After the show, victim 1 stayed the night with the applicant at his home, at which time the applicant had victim 1 sleep with him in his bed. The applicant masturbated victim 1 during sexual activity that evening.

Count 4

In July 1992 the applicant took victim 1 on a trip to Canberra. They spent the night at the home of a close friend of the applicant. During the return drive to Sydney, the applicant stopped the car and masturbated victim 1 until he ejaculated.

COUNTS 5 TO 18

Background

Each of counts 5 to 18 related to the applicant's sexual conduct with victim 2 between March 1993 and mid 1998.

Counts 5 and 10 each alleged offences of aggravated indecent assault contrary to s. 61M(1), the aggravating feature in each case being the age of victim 2.

Each of counts 6, 7, 8, 9, 11,12, 13, 14,15, 16,17 and 18 alleged an offence of homosexual intercourse with a male person between the ages of 10 and 18, contrary to s. 78K of the Crimes Act. Each offence carried a maximum penalty of 10 years imprisonment.

In March 1993 victim 2, who was then 12 years old, went to a camp organised by a church group of which he and his family were members. The applicant was also a member of that church group and was involved in a number of church activities including playing the piano at services. It was in these circumstances that the applicant offered to give victim 2 piano lessons.

A short time after the applicant met victim 2, arrangements were made for him to attend his first piano lesson at the applicant's home on 15 April 1993. On the occasion of that first visit, victim 2 spent most of the day and evening alone with the applicant. After mowing the lawns together, the applicant gave victim 2 a massage and victim 2 also massaged the applicant. At the applicant's direction, victim 2 unzipped the applicant's fly and touched his penis, although these matters were not the subject of any count in the indictment.

Over the next 5 years, the applicant established and maintained an ongoing sexual relationship with victim 2 which continued for the duration of victim 2's adolescence. The applicant used his position as a teacher, and as a respected figure within the church community, to gain the trust of victim 2 and his parents. As a consequence, during the period of the offending, the applicant was able to organise a range of circumstances in which he was alone with victim 2, thus providing an opportunity to engage in sexual activity with him. Those circumstances included watching movies, collecting victim 2 after school and having him stay overnight, and taking him on holidays. In order to preserve, and continue, his association with victim 2, the applicant interfered in the development and maintenance of victim 2's friendships and social pursuits.

Victim 2 gave evidence that the applicant engaged in sexual activity with him on almost every occasion on which they were alone together. In August 1994, the applicant told victim 2 that he knew a man who could make people disappear by putting them into an acid bath, a statement which victim 2 unsurprisingly interpreted as a threat.

In early 1999, an incident occurred in which the applicant engaged in simultaneous sexual activity with both victim 2 and victim 3. Following that incident, victim 2 began to break away from the applicant, and finally ended their association in 2000. In mid 2000 victim 2 complained to his mother about the applicant's activities. He said that he had failed to complain earlier because of deep feelings of shame and embarrassment, and because of real fears that he held for his safety as a result of the statement made by the applicant about having the capacity to make people disappear.

Against this background, counts 5 to 18 encompassed the following conduct.

Count 5

Count 5 concerned an incident about one month after victim 2 met the applicant when victim 2 was at the applicant's home after school. After watching a video together, the applicant masturbated victim 2 and then had victim 2 masturbate himself, until they both ejaculated.

Counts 6 and 7

A few weeks after the incident which was the subject of count 5, the applicant collected victim 2 from school, took him to his home and engaged in mutual masturbation with victim 2. The applicant then sucked victim 2's penis (count 6) and had victim 2 suck his penis (count 7).

Counts 8 and 9

On an occasion in August 1993 when victim 2 was 12 years old, the applicant took him to his home. Whilst in bed together, the applicant sucked victim 2's penis (count 8) and had victim 2 suck his penis (count 9).

Count 10

The applicant took victim 2 on a trip to Canberra during the school holidays in late 1993/early 1994. On the drive back to Sydney the applicant rubbed and touched the penis of victim 2 on the outside of victim 2's clothes.

Counts 11 and 12

In early 1995, victim 2 and his family attended a church camp at which the applicant was also in attendance. During the camp, the applicant drove victim 2 to an isolated location where victim 2 sucked the applicant's penis (count 11) and the applicant sucked victim 2's penis (count 12).

Count 13

In late May or early June of 1995 victim 2 stayed at the applicant's home. The applicant performed anal intercourse upon victim 2.

Count 14

In early January 1996 the applicant went with victim 2 on a holiday to Fingal Bay. The applicant and victim 2 shared a room and slept in the same bed. The applicant engaged in sexual activity with victim 2, including sucking his penis.

Counts 15, 16 and 17

In August 1996, a short time after competing in the "City to Surf" race, victim 2 (who was then 15) stayed at at the applicant's home. The applicant had victim 2 suck his penis (count 15) and the applicant then sucked victim 2's penis (count 16). The applicant also performed anal intercourse on victim 2 (count 17).

Count 18

In late June 1998, the applicant took victim 2 (who was then aged 17) to watch a football match in Wollongong. They stayed the night at a hotel, shared a room and slept in the same bed. The applicant engaged in sexual activity with victim 2 on this occasion, including having anal intercourse with him.

Counts 24 to 32

Background

The five counts in the indictment in respect of which the jury found itself unable to agree (counts 19 to 23 inclusive) all related to victim 3. The remaining counts involving victim 3 (counts 24 to 32) arose from incidents which occurred between 1999 and 2002.

Count 24 alleged an offence of aggravated indecent assault contrary to s. 61M(1) of the Crimes Act, the aggravating feature being the age of victim 3.

Each of counts 25, 26, 30, 31 and 32 alleged homosexual intercourse with a male person between the age of 10 and 18, an offence contrary to s. 78K of the Crimes Act.

Each of counts 27, 28 and 29 were charges of attempted homosexual intercourse under s. 78L of the Crimes Act. The maximum penalty for each of those counts was one of 5 years imprisonment.

Victim 3 was about 8 years old when he began having piano lessons with the applicant at the applicant's home. As had been the case with victims 1 and 2, victim 3 and his family were members of the same church as the applicant. As the association between the applicant and victim 2 was coming to an end in 1999, the applicant began to become closely involved with victim 3 and his family. He became a frequent visitor to the home of victim 3 and, as a result, obtained the trust of his parents. They, in turn, came to regard the applicant as a close friend and effectively as a member of their extended family. Thereafter, the applicant engaged in sexual activity with victim 3 from 1999 until 2002, a period in which the victim was aged between 14 and 17. He did so in social settings similar to those in which he had engaged in sexual activity with victims 1 and 2.

Victim 3 gave evidence at the trial that in the course of staying at the applicant's premises in 2000 the applicant spoke about his earlier relationship with victim 2. He expressed concern that victim 2 might reveal the truth about that association. The applicant then told victim 3 that he could put victim 2 into an acid bath.

As had been the case with victim 2, the applicant interfered with friendships and other aspects of victim 3's personal life in order to be able to continue the sexual relationship between them.

In mid 2001, despite being advised by church ministers and victim 3's parents to end his association with victim 3, the applicant persisted with it. He called victim 3 on a large number of occasions, using a telephone which he had obtained for the specific purpose of ensuring, as far as he could, that his continued association with victim 3 was not discovered. He arranged many covert meetings between them in 2001 and 2002, at which time sexual activity occurred between them.

When he was first approached by his parents in mid 2001, victim 3 denied any sexual misconduct on the part of the applicant. He made a similar denial when approached by police a year later. Finally, in December 2002, victim 3 provided statements to police detailing the incidents of sexual activity with the applicant.

Counts 24, 25 and 26

In January 1999 following a fishing trip the applicant took victim 3 (who was then 14 years of age) and victim 2 to his premises. He played a game with both boys which required them to remove their clothes, after which he took them to his bed and engaged in sexual activity with them. The sexual acts committed by the applicant included masturbating victim 3's penis (count 24), sucking victim 3's penis (count 25) and having victim 3 suck his penis (count 26).

Count 27

Victim 3 recalled staying at the applicant's home at some time in either the first term or the winter school holidays of 2000. On that occasion the applicant tried to force victim 3's penis into his anus. Victim 3 rolled away to avoid doing so.

Count 28

During another incident about a fortnight after the occasion which was the subject of count 27, the applicant again tried to get victim 3 to perform anal intercourse on him. Once again victim 3 rolled to the side so as to avoid doing so.

Count 29

The victim gave evidence that he recalled an incident similar to that set out in count 28 happening in the colder months of 2001. On that occasion, the applicant tried to have victim 3 engage in anal intercourse. Once again victim 3 rolled to the side to avoid so doing.

Count 30

About two weeks prior to Easter 2002, the applicant met with victim 3 who was then 17 years of age. They went to the applicant's home where the applicant engaged in sexual activity with victim 3 which included masturbation and sucking his penis.

Counts 31 and 32

The applicant took victim 3 to his home during the week prior to Easter 2002. Sexual activity occurred on that occasion during which the applicant sucked the victim's penis (count 31) and had the victim suck his penis (count 32).

THE SENTENCES IMPOSED

His Honour sentenced the applicant as follows:

(i) in respect of count 27, a fixed term of 2 years imprisonment commencing on 28 April 2006;

(ii) in respect of count 28, a fixed term of 2 years imprisonment commencing on 28 October 2006;

(iii) in respect of count 29, a fixed term of 2 years imprisonment to commence on 28 April 2007;

(iv) in respect of count 1, a fixed term of 3 years imprisonment to commence on 28 October 2007;

(v) in respect of count 2, a fixed term of 3 years imprisonment commencing on 28 April 2008;

(vi) in respect of count 3, a fixed term of 3 years imprisonment commencing 28 October 2008;

(vii) in respect of count 4, a fixed term of 3 years imprisonment commencing on 28 April 2009;

(viii) in respect of count 5, a fixed term of 3 years imprisonment commencing on 28 October 2009;

(ix) in respect of count 10, a fixed term of 3 years imprisonment commencing on 28 April 2010;

(x) in respect of count 18, a fixed term of 3 years imprisonment commencing on 28 October 2010;

(xi) in respect of count 24, a fixed term of 3 years imprisonment commencing on 28 October 2013;

(xii) in respect of count 30, a fixed term of 3 years imprisonment commencing on 28 April 2011;

(xiii) in respect of each of counts 31 and 32, a fixed term of 3 years imprisonment commencing on 28 October 2011;

(xiv) in respect of each of counts 6 and 7, a fixed term of 5 years imprisonment commencing on 28 April 2012;

(xv) in respect of each of counts 11 and 12, a fixed term of 5 years imprisonment commencing on 28 October 2012;

(xvi) in respect of count 14, a fixed term of 5 years imprisonment commencing on 28 April 2013;

(xvii) in respect of counts 15 and 16, a total term of 5 years imprisonment with a non-parole period of 3 years commencing on 28 April 2015;

(xviii) in respect of counts 25 and 26, a total term of imprisonment of 5 years with a non-parole period of 4 years and 6 months commencing on 28 October 2013;

(xix) in respect of counts 8 and 9, a total term of 6 years imprisonment with a non-parole period of 4 years commencing on 28 April 2014;

(xx) in respect of count 13, a term of 7 years imprisonment with a non-parole period of 3 years and 6 months commencing on 28 October 2014;

(xxi) in respect of count 17, a total term of 7 years imprisonment with a non-parole period of 3 years to commence on 28 April 2015.

The effective overall sentence was 16 years imprisonment with a non-parole period of 12 years commencing on 28 April 2006. The applicant will be eligible for release on parole on 27 April 2018.

THE GROUNDS OF APPEAL

Although the notice of appeal and the written submissions were filed with the court on the same day, the grounds set out in each of those documents were not consistent. Six grounds were set out in the notice, whereas the written submissions set out five. Moreover, to the extent that the grounds set out in each document touched upon the same subject matter, such grounds were pleaded in terms which were, in some respects, substantially different. The Crown addressed the grounds by reference to the applicant's written submissions. To a large extent, counsel for the applicant, whilst making it clear that no ground was abandoned, was content to rely upon the written submissions which had been filed. In these circumstances, I have proceeded on the basis that the grounds of appeal are as set out in the applicant's written submissions.

In respect of ground 1, which alleged incompetence of trial counsel, two affidavits of the applicant of 18 June 2013 and 16 July 2013 were read, along with an affidavit of the applicant's partner, Jennifer Castle, of 23 September 2013. The Crown read an affidavit of Jason Watts, the applicant's trial counsel, of 16 September 2013 and Mr Watts gave oral evidence. It should be noted that a number of the matters raised by the applicant in his affidavits went beyond the matters relied upon in support of ground 1. To the extent that they did so, I have disregarded them.

Finally, although Ms Castle was not required for cross-examination, the Crown made it clear that this was not to be construed as acceptance of anything said by Ms Castle in her affidavit. The Crown indicated that this position had been taken because, in the Crown's submission, the evidence of Ms Castle did not advance the relevant ground in any event.

Ground 1 - Counsel for the applicant was incompetent in that he failed to put certain interlocutory and other matters to the court, the effect of which was that the allegations made by the three complainants were tried together.

The basis of ground 1

The written submissions in support of this ground were essentially limited to an assertion of incompetence on the part of Mr Watts in failing to put matters in opposition to the joint trial of the applicant on all of the allegations made by the three victims. However at the hearing of the appeal, the basis of ground 1 was expanded to encompass failures on the part of Mr Watts to:

(i) bring to the attention of the trial judge the "lack of similarity" between the allegations made by the three complainants in opposition to a joint trial;

(ii) cross-examine victim 3 about evidence he had given in the Local Court in relation to counts 30 to 32;

(iii) call a witness who was said to be in a position to give alibi evidence;

(iv) properly prepare his final address to the jury; and

(v) raise the fact of threats allegedly made to Ms Castle prior to her giving evidence in the applicant's case.

The failure to properly oppose a joint trial

Background

The Crown issued a number of tendency notices prior to the trial, reflecting its position that the evidence of the three victims was capable of establishing that the applicant had a tendency to act in a particular way, and that the occurrence of the alleged offences was not explicable on the basis of coincidence. The similarities relied upon included the circumstances in which the applicant came to know each victim, the fact that the applicant forged a close relationship with the family of each victim and the fact that the applicant took each victim on outings and social events where he could be alone with them. Although neither transcript of the argument in relation to the notices nor his Honour's judgment form part of the material before this Court, it is apparent from the written submissions that his Honour concluded that the evidence of each of the victims was admissible on the basis on which the Crown had contended. In particular, his Honour concluded:

(i) that the evidence of each of the three victims had significant probative value within the meaning of s. 97(1)(a) of the Evidence Act 1995; and

(ii) that such probative value substantially outweighed the risk of prejudice to the applicant and that any risk that a jury might use the evidence for a purpose for which it had not been tendered could be ameliorated or eliminated by an appropriate direction.

Consistent with this, his Honour gave a number of directions to the jury in the course of his summing up which emphasised the need to give separate consideration to each count. Those directions are more fully set out in my consideration of ground 2, which alleges bias on the part of the trial judge as a consequence of his decision to allow a joint trial of the entirety of the complaints of the three victims.

Submissions of the parties

It was submitted on behalf of the applicant that there were "dissimilarities" in the evidence of the three complainants and that counsel had failed to bring the attention of the trial judge to those matters when opposing a joint trial of all complaints.

In response, the Crown emphasised the principles surrounding the admissibility of tendency and coincidence evidence. The Crown submitted that concentrating upon the minutiae of the offending and comparing the similarities and dissimilarities was not the correct approach to be applied in determining the admissibility of such evidence. It was submitted that this was reflected in those authorities which establish that in order for evidence to be admissible pursuant to s. 97 it is not necessary that there be striking, or even close, similarities.

The failure to cross-examine victim 3 on counts 30 - 32

The evidence

The applicant was discharged by the Magistrate at committal in respect of those allegations which formed the basis of counts 30-32. However the Director of Public Prosecutions subsequently exercised his power to indict the applicant in respect of those allegations.

In paragraph 13 of his affidavit of 18 June 2013, the applicant stated as follows:

"Counsel failed to cross-examine (victim 3) on counts 30 to 32 which were dismissed at a committal hearing upon evidence having been taken from the complainant."

In paragraphs 20 to 21 of his affidavit of 16 July 2013 the applicant stated as follows:

"20. During cross-examination of (victim 3), counsel failed to cross-examine on counts 30 to 32. At the end of the day, I asked Jason "What happened to counts 30-32?"

21. Mr Watts replied, "Oh, I forgot. If there is any problem I'll just have to fall on my sword."

In paragraph 15 of his affidavit of 16 September 2013, Mr Watts stated as follows:

"Re the applicant's affidavit affirmed 18 June 2013 at paragraph 13 and the affidavit affirmed 16 July 2013 at paragraphs 20 and 21, I dispute that any conversation such as that set out there occurred. I do not recall any discussion about my failing to cross-examine on these counts. I recall that I cross-examined (victim 3) re counts 30 to 32 to the effect that these things that he was alleging did not occur. My recollection is that (victim 3) was not excused at the close of his evidence and could easily have been recalled had there been anything further that I needed cross-examine him about. If I had forgotten to cross-examine as to any of the counts on the indictment I believe I would have requested that (victim 3) be recalled so that I could do so. Similarly if I had forgot (sic) to cross-examine (victim 3) on some important prior inconsistency, I believe I would have sought to have him recalled so that I could do so."

At the hearing of the appeal, having had his attention drawn to those parts of the affidavit evidence set out in [80] - [82] above, Mr Watts gave the following evidence (commencing at T15 L34):

Q. What you say in line 5 of that paragraph is that "I recall that I cross-examined (victim 3) re counts 30-32 to the effect that the things he is alleging didn't occur". That is right, isn't it?

A. Yes.

Q. Mr Winter complained that your cross-examination went further than that. It went to whether or not you had put to (victim 3) inconsistencies which had come out in his evidence on previous occasions and, particularly, at committal. You recall that is a complaint about that issue?

A. That is not what he says. It says in para 20 "Counsel failed to cross-examine ... 30-32". Now, that is just not, clearly, correct. It didn't occur because I did cross examine on those counts.

Q. You recall now whether in fact you did cross examine him as to (victim 3's) evidence from the committal period?

A. Here again, I must put the clarification that I am going on recollection. I did attempt to consult the committal transcript. I did look at it and I did obtain some of the committal notes, mostly from my colleague Jackie Standford who still had some. My recollection is that I determined not to go back to his evidence at committal in relation to these points because he was firming, as it were, in his recollection, of what had occurred. So, to put it in context, again I have not got the documents in front of me, but my recollection is that the police statement said "That was the last time I stayed at the applicant's home".

In the committal hearing he changed that and said "The last time I visited the applicant's home". Now, there was a lot of independent evidence about his contact with the applicant at that time, phone records and other evidence, which indicated that they had this continued contact up until, and during, this time. So, it was not our case that they had not had this contact, or he had not visited the applicant. It was really a case that when he did, they did not have sex.

Forensically, I saw no point in going back and saying you told the police you stayed, and you changed that at the committal, and these last contacts when I say "stayed", I mean overnight. That is again my recollection after having gone through the documents. We had managed to show him that he was clearly wrong in his recollection concerning earlier events, and we had used contemporaneous exhibits to do that. He admitted he was wrong. He was confounded. We had other material to show he was inconsistent.

I recall that there was Blood Bank material, and there were some material about him telling lies in relation to a car accident. Instead of giving him the opportunity to explain, as it were, and get him to give a full account of how his memory had sharpened in relation to those events, it was better to go through and show where he was incorrect or had lied.

Q. From what you have said, the evidence that (victim 3) gave at committal was to some degree inconsistent with the evidence as to those events that he gave at trial. That is right, isn't it? You have referred to inconsistencies just now yourself?

A. Inconsistencies with police statements. When you are talking about the committal - we have leave to cross examine under the relevant provisions, and it was during his cross examination that he in effect changed his version of the detail around these last events, so he didn't say I have got it wrong. He said it was definitely around Easter but I was wrong when I said I "stayed". That night I drove over and stayed for a short time and we had sex.

Q. It would seem it was your forensic decision not to pursue those inconsistencies at trial?

A. Yes, because his evidence at committal was consistent with evidence at trial. I was going back to the evidence in the initial police statement where he was obviously wrong.

Q. It is those inconsistencies that you did not pursue at trial?

A. That is my recollection. Again, I would really like to see the police statements, but that is my recollection of how it transpired.

Q. Mr Winter's recollection was that he did wish you to pursue all of the inconsistencies regarding (victim 3's) evidence that were available?

A. That is incorrect, to say that that was given to me as a specific instruction. Mr Winter was a very intelligent client. He was a very involved accused and we discussed at length tactics at cross-examination. So I think we would have talked about this, but the decision was definitely mine, and I do recall (victim 3), as it were, firming the longer his evidence went on, and I do recall thinking that I don't want to give him anymore bases, as it were, to keep doing that, giving answers that did have a ring of truth about them. I wanted to take him back to where it would show clearly where it was either untrue or consistent with the documentary evidence.

Q. Nevertheless, Mr Winter, the applicant, in his affidavit at paras 20 and 21 does depose to a conversation at the end of the day when (victim 3) was being cross-examined by you and he sets out a conversation with you?

A. I beg your pardon, is that the first or second affidavit?

Q. Second affidavit, one of 16 July, paras 20 and 21?

A. I dispute any such conversation along those lines. My clear recollection is that there were some issues with (victim 3) with the Crown and I needed to sort them out. I cannot now recall what they were, but my recollection is that (victim 3) was not even released from his subpoena to give evidence at that stage.

So, to my recollection, it is not completely contrary to how things proceeded, but to suggest that I would say "That is a missed opportunity. Cannot do anything about that." If it had been brought to my attention that there was any fundamental point, no matter how big or small, that had not been taken in relation to (victim 3), I would have sought to have him immediately recalled. That would be if I had thought of it myself, or it had been pointed out to me by Mr Winter, Ms Hunter or anyone else involved.

Q. It is also consistent, is it not, with Mr Winter raising it with you and you making a decision and telling him that you were not going to do something, is it not?

A. I don't recall having that conversation with this evidence. There were then times where we would have conversations along the lines where I would say to Mr Winter, "I don't think that is forensically significant," or , "I don't think that is relevant to the issues of the trial." So we definitely had those sorts of conversations about other areas but I don't recall having them for this specific aspect.

Again, it is a recollection which is not perfectly solid but my recollection is going over that with Ms Hunter and Mr Winter, my impressions of the jury being sympathetic to (victim 3) and (victim 3) is strengthening the longer he went on in his evidence and discussing, that is why I go quickly to that, those forensic points and the way we wanted to show him up as an inconsistent or untruthful witness."

Submissions of the parties

It was submitted on behalf of the applicant that there had been a failure on the part of Mr Watts to cross-examine victim 3 in relation to the evidence he gave in the Local Court in respect of counts 30-32. Emphasis was placed on the fact that the Magistrate had discharged the applicant in relation to those allegations.

Counsel for the applicant also pointed to the fact that the counts in respect of which the jury could not reach a verdict all related to victim 3. This, it was argued, served as an indication that "a bit more push" in terms of the cross-examination of victim 3 may have brought a similar result in respect of other counts.

The Crown submitted that decisions as to the cross-examination of victim 3 (or indeed the cross-examination of any witness) were matters for Mr Watts as trial counsel and that the decisions he made were proper forensic decisions of a kind commonly made by counsel in the course of any criminal trial. The Crown submitted that it is not the role of an accused person to direct the questions to be asked of a witness, nor to direct the manner in which those questions might be asked, and that counsel was entitled to rely upon his professional experience and knowledge in the conduct of the trial generally, and in determining the nature and extent of cross-examination in particular. The Crown also submitted that it was not part of this Court's role to reach a determination about the wisdom of the particular approach which was adopted.

Finally, in a general sense, and in answer to the entirety of the matters relied upon in support of this ground, the Crown submitted that although it was not possible for this court to assess the "atmosphere" which prevailed at the trial, a reading of the relevant parts of the transcript necessarily led to the conclusion that the applicant's case was put thoroughly, competently and forcefully by Mr Watts and that there had been no miscarriage of justice arising out of the applicant's trial.

The failure to call Ms Delacore

The evidence

In paragraph 12 of his affidavit of 18 June 2013 the applicant stated as follows:

"Counsel failed to contact or call witness for the applicant (Rev. David Crane and Ms Sue Delacore) who could provide testimony/alibi material."

In paragraphs 14 to 16 of his affidavit of 16 July 2013 the applicant stated as follows:

"During the Trial, I had a conversation with Mr Watts about the alibi evidence that Ms Sue Delacore could provide. "During the soccer seasons in 1993-94, I always dropped my referees reports into Sue Delacore's home at around 5pm they were due by 6pm". Mr Ron Delacore was not home from work, but other referees would do the same and we often had a coffee and a talk. (Victim 2) has made allegations about Monday afternoons, but this is not possible and Sue Delacore could give this evidence".

15. He replied, "I'll see if I can get Katherine Hunter to get in touch with Ms Delacore and will get a statement from her.

16. This did not eventuate, however, the Crown called Mr Delacore to give evidence. He could only say that he was not home and to his knowledge, I was not there on Monday nights!!"

In paragraph 14 of his affidavit Mr Watts stated as follows:

"Re the applicant's affidavit affirmed on 16 July 2013 at paragraphs 14 to 16, I recall that Ron Delacore gave evidence that to his knowledge the applicant did come to his home on some Monday afternoons before 6pm to drop off his referee's reports when his wife, Sue Delacore was at home."

In the course of cross-examination before this Court Mr Watts gave the following evidence (commencing at T 18 line 25):

"Q. It was the case, wasn't it, that Mr Winter's instructions were that he had evidence of an alibi nature in defending the Delacores and I think it was occasions that he was alleged to have sexual activity with (victim 2) the co-defendant. That is right, isn't it?

A. Yes, I believe it did relate to the sexual allegations.

Q. And of course Ron Delacore, Mr Ron Delacore was in fact called by the Crown. That is right, isn't it?

A. Yes, Mr Winter filed his own extensive alibi notice in between being represented by Back, Schwartz and Vaughan and Hunt and Hunt but it was on the basis of a number of alibis were involved and, yes, the Delacores were part of it and they were interviewed by Ron Delacore and no doubt by the police and a statement served, yes, and he appeared, yes.

Q. In Mr Winter's second affidavit of 16 July commencing at para 14 he records instructions that he gave you about the evidence from the Delacores and of course he says in that paragraph about the relevant evidence being from Sue Delacore?

A. Yes.

Q. Not Ron Delacore?

A. Yes, but we had further conversations along those lines before the court, before the trial. His statements were served on us. There were conversations between myself and Ms Hunter and the Crown and the solicitor for the DPP about these issues pre-trial in a number of respects. In relation to the alibi notice, were they speaking to everyone specified in them? We were trying to ascertain who we would have to speak to so, yes, there was general conversation along those lines but I don't recall it happening like this in the context of the trial, as it were.

Q. What did happen in the context of the trial was, was it not, that Ron Delacore gave his evidence and the effect of his evidence was that he was unable to assist the court case. He says he was not at home at the time when Mr Winter says he came to drop in his referee's reports. That is correct, isn't it?

A. No, he did say he was not at home but he was president so he and his wife were both in positions of running these organisations and he said, "but I am aware that, yes, Mr Winter, along with other referees, dropped in his reports during that period." So he gave evidence that Mr Winter had obviously attended because when he got home at six his reports had been dropped in.

Q. And the point they say in terms of instructions from Mr Winter was that it was his wife Sue Delacore who can give the alibi evidence because she was the one that he was delivering the reports to and that in effect Delacore was not the relevant witness. That is right, isn't it?

A. Again I don't remember it specifically like that but the applicant was on bail and perfectly able to contact Mrs Delacore and speak to her. There was discussion with him, between him and Ms Hunter, as I recall it about doing that. I can't recall myself particularly being involved in these discussions. Clearly, as you point out, it would have been better if Sue Delacore had given evidence. I can't now recall, why she didn't if there was any reason offered by the Crown, but my recollection is that our alibi was supported by the evidence that was given. It was not put, as I recall it, to the accused in his evidence that he did not drop off his reports in the afternoon.

The difficulty was that the Crown case and the accused's case could both have happened. There could have been a sexual assault earlier in the afternoon and then the drop off of the referee's reports.

It was not one of those matters that I recall where if Mrs Delacore had been found there was a complete alibi and the offence could not have been proven. So in effect it was a non issue is my recollection and I do not recall the specific conversation occurring in the context of the trial.

I can recall conversations that it would have been better if it was Sue and not Ron but I don't recall it.

Q. To that degree you certainly would not deny that if Mr Winter had given instructions in terms as he set them out in paragraph 14 and then as he deposes in paragraph 15 that an answer was given by you and that you would see if your instructing solicitor Catherine Hunter would get in touch with Mr Delacore and get a statement?

A. Well, to be precise I do dispute it because the conversations were between Ms Hunter and I didn't have conversations with Mr Winter in Hunter's absence about evidence that I can recall. We talked at times when we were all together but the primary leg work, the hard work of issuing subpoenas to produce and to attend were done by Ms Hunter after we had all conferred together.

There were many people approached, interviewed, many subpoenas issued in this matter. I can't specifically recall directing Ms Hunter to get a statement fro Sue Delacore. I do remember Sue Delacore being raised and I have looked through the material that Ms Hunter gave me. I can't see that she was ever actually spoken to and I can't recall - I have a recollection that some excuse was offered by the Crown as to why she was not available or it was not convenient, but that is of no substance.

Q. I put it to you that in terms of Mr Winter's affidavit paras 14 and 15, that it was his instructions that Mrs Delacore should be contacted and that proof of some sort should be obtained from her and that was the case, either from you or your instructing solicitor?

A. Again, no, in that neat way. We definitely - it was part of the alibi notice that had been served that he attended at their home between 5 and 6 on the Monday afternoon and there were general discussions about would we need to do anything about that if the police and the DPP did not adequately respond to the alibi notice but there was no conversation in the context of the trial, as it were, when Ron Delacore gave his evidence to the effect of, "That is wrong, our alibi. We must contact Sue Delacore."

Q. It would seem, though, from your evidence that Mr Winter's instructions were that Mrs Delacore should be contacted for this purpose and that it was not a dispute and the referees' as it were, individually or collectively that this was not necessary and it was not done?

A. No, I would, that is not my recollection of it. As I say, there was nothing to stop Mr Winter contacting Mrs Delacore. There was no bail condition or anything that would prevent that happening. No, we didn't say don't contact Sue Delacore. As I say, I can't recall exactly why she did not give evidence but it was not as a result of my refusing to carry out his instructions, as such.

Q. Weren't you refusing? The point is, that on Mr Winter's account of things it simply was not done?

OBJECTION. ALLOWED

A. I would defer to Ms Hunter really. She definitely did not come and get us, that is clear but I can't recall why. "

Submissions of the parties

Counsel for the applicant appeared to accept that it may not be entirely fair to ascribe responsibility to Mr Watts alone for any failure to call Ms Delacore. Nevertheless, counsel submitted that Ms Delacore was a material witness who should have been called in the applicant's case, but was not.

The Crown submitted that the calling of witnesses, like the nature and extent of cross-examination, was a forensic decision for trial counsel. In these circumstances the Crown submitted that the absence of Ms Delacore did not evidence incompetence on the part of Mr Watts.

The asserted lack of preparation and organisation in counsel's final address

This particular allegation was not the subject of any cross-examination of Mr Watts but was nevertheless relied upon. I have dealt with it further below.

The failure to raise the threats made to Ms Castle

The evidence

In paragraphs 25 to 28 of his affidavit of 16 July 2013 the applicant stated as follows:

"25. Prior to giving evidence for the defence, Ms Jennifer Castle received 4 threats from one of the complainants all of which were reported to the police. The 4th threat just days before her evidence, was ignored by the police. I said to Jason, "I think the judge should be given the information about the threats".

26. Jason replied, "I have raised the matter with the investigating police and the Crown - and I think everything will be alright."

27. I said, "I want Jennifer to be safe, but I also want the judge to know that a witness has been threatened. I am not the one making life difficult for others, they are".

28. Jason said, "Well. Let's just see what happens."

In her affidavit of 23 September at paragraphs 3 to 6 Ms Castle stated as follows:

"3. I gave evidence at the trial of the applicant in April 2006. Just prior to my giving evidence I received four threats against me. I reported all of these threats to the police. On the first two occasions I received threatening phone calls and was not able to identify the voice. On the third occasion (victim 3) drove past my home and yelled abuse in the street. On each of these occasions I complained to the police and they gave it an incident number. The last threat was just days before I was due to give evidence. On that occasion I received a further telephone call. The applicant, my daughter Kate, my son Lindsay and I were all able to identify the voice as that of (victim 3). When I reported this last incident to the police it was not given a new incident number.

4. I had also received threats about a year before hand on 29 May 2005. On that occasion insulting and threatening notes were left under my door which read:

"Liar", "Son of a bitch", "I know what you did last night" and "You will pay".

I did not know whether these notes were directed at the applicant or at me or at both of us. I contacted the police and Constables Chadwick and Beltrami attended and examined the notes. I was advised the matter could amount to tampering with a witness, and the incident number E23911914 was allocated to it.

5. In paragraph 17 of his affidavit Mr Watt says:

"...I did not consider there to be forensic relevance in her complaints that she had been recently harassed by persons unknown"

I say that the applicant and I informed Mr Watts that there had been four occasions of recent threats and than on the two most recent occasions I had been able to identify the person making the threat as (victim 3). I say that I informed Mr Watts that the most recent threat had been very distressing for me, and that as a consequence of it I felt intimidated and less able to give my attention to answering questions put to me under cross-examination. I say that the threats I had received had a material effect upon the evidence I was able to give at the trial in favour of the applicant.

6. After the verdict was handed down I spoke wit Mr Watts. I said:

"What was all that business about why you didn't ask (victim 3) why he kept changing his story?"

Mr Watts said:

"I forgot. Don't worry, there'll be an automatic review of the verdict. It'll come out in the appeal. I'll fall on my sword".

In paragraph 17 of his affidavit of 16 September 2013 Mr Watts stated as follows:

"Re the applicant's affidavit affirmed 18 June 2013 at paragraphs 14 to 16 and the affidavit of affirmed 17 July 2013 at paragraphs 25 to 28 Ms Jennifer Castle gave evidence supportive of the applicant and, to the best of my recollection, I did not consider there to be any relevance in her complaints that she had been recently harassed by persons unknown."

In the course of his evidence Mr Watts was cross-examined about this issue as follows (commencing at T 12 L26):

"Q. Now, you would confirm to the Court, would you not, that after the guilty verdicts were handed down, and after Mr Winter was remanded in custody, that you did have one or more conversations in effect about where in effect to go from here?

A. Yes.

Q. One of the questions she asked, was it not, did concern the possibility or likelihood of an appeal?

A. Yes.

Q. I put to you the question in this fashion, I take it at this distance this year you could say your response would have been, yes, if Mr Winter wishes to appeal he certainly would be able to appeal?

A. Yes, it was certainly couched in terms of what needed to be done in Legal Aid also to practically facilitate things but, yes.

Q. Your answer would have been that Mr Winter would have been entitled to pursue an appeal, to lodge an appeal?

A. Yes.

Q. You also gave advice about practical things in relation to applying for Legal Aid?

A. Yes.

Q. In para six Ms Castle does set out a conversation, her words being "What was all that business about? Why didn't you ask Chris why he kept changing his story?" Do you recall that Ms Castle in fact asked you a question, after the guilty verdicts, along those lines?

A. No, I would say there definitely was not a conversation after the verdict about evidence. I say that because I recall distinctly the jury were deliberating for some eight days, that is my recollection. So we sat and spoke to the applicant and Ms Castle at length reviewing the evidence in the trial, discussing issues.

There was a complete change after the verdict. There was no going back to evidence, as it were. We were then fully focused on what would happen now, where will the applicant go, what are his rights. There was no review or no discussion at that time. There were no recriminations, as it were, of the evidence.

Q. So, your evidence today is, if there were conversations about the evidence it would have been in that period while the jury was considering its verdict?

A. Yes. There were definitely times where there was discussion about what the jury were doing and that would bring us back to evidence and who said what.

Q. Assuming that is the timeframe, as you say, wasn't it, during the eight-day or so period when the jury was considering its verdict that Ms Castle said those words to you, asked you in effect why you failed to cross examine, or ask Chris Smith about his changing his story?

A. No, Jenny Castle was not as involved in the instructions as the applicant. She was an alibi witnesses, she was not even in Court when Chris Smith gave his evidence. I just cannot see the basis, searching my memory, as it were, how it would be that she would pose such a question. It does not accord with how things went so, no, it doesn't fit in any way with my recollection of any of my conversations with Jenny Castle.

Q. Of course Ms Castle gave evidence at some point during the trial and that quite clearly was before your address and summing up?

A. Yes.

Q. From the time that Ms Castle gave her evidence, until the time that the jury's verdict came down, there was quite clearly ample time for her to discuss the progress of the trial and what had happened, for example, when Mr Winter was not there?

A. Yes.

Q. Putting aside whether or not to your recollection now, those words might not have made sense, because Ms Castle is not present in Court to hear evidence, it is very possible that a question along those lines could well have been put to you by her on the basis of something she was told by somebody else?

OBJECTION: ALLOWED

A. Again, it does not accord with my recollection of my involvement with Jenny Castle. After giving her evidence, which we relied upon, her role was very much as a supporter of the applicant, not as a, I don't recall having any, as it were, in-depth discussions about the evidence. I don't recall ever being challenged by her, even an enquiry or polite challenge.

There was discussion about the evidence given and whether the jury would be persuaded by it, and what could they be doing deliberating so long about it. It is that sort of discussion that occurs after a jury retires. It would get enlivened again if there were questions. I don't recall any challenge or polite enquiry about why I did, or did not, ask.

Q. The fact that you saw Ms Castle as a supporter of your client, that itself would not necessarily prevent Ms Castle from asking that sort of question, would it?

A. I would not have been offended if she had, but my recollection is that no such question was asked.

Q. This expression that she attributes to you, the words she attributes to you, which is the last two lines of para six, "It will come out in the appeal. I will fall on my sword". That expression is one that was used by you at the time?

A. I have used that phrase before. I don't recall using it in any conversations with Jenny Castle, and I don't recall using it in any of the conversations after the jury retired in this case.

Q. I understand that is what you say, but Mr Watts, that occasion during the trial of Mr Winter, of course this was the only time when Ms Castle had contact with you or you with her?

A. During the trial?

Q. During the trial?

A. Yes, yes, about this trial.

Q. If it is the case, and it seems to be your evidence that the expression "I will fall on my sword" is one that was used at the time, that is right, isn't it?

A. I am not saying I used it on that occasion.

Q. I understand that?

A. It is a phrase I have used in the past but that is as far as I can go.

Q. I understand what you say. Of course the only time Ms Castle would have had an opportunity to hear you using the expression "I will fall on my sword" would have been during the trial?

A. It could only have been in the context of the lead up preparation or conduct of this trial.

Q. You understand that I put to you that you deny that conversation with Ms Castle?

A. Yes.

Q. Her only opportunity to pick up the fact that you may have used that expression in that period was during the trial?

A. Again, when you say "during the trial" we had a lot of contact preparing for the trial. Ms Castle was of great assistance during the preparation. She was in Sydney and the applicant was in Canberra. There was a lot of exchange in person and by telephone. Yes, there was a lead up to the trial but, yes, that could have been the only time that we interacted."

Submissions of the parties

Counsel for the applicant submitted that the evidence of Ms Castle as to her conversation with Mr Watts should be accepted. However what was said to flow from such a finding if it were reached was not made clear. It was also not made clear how, in that event, anything said by Mr Watts in that conversation was indicative of incompetence.

Further, the forensic purpose which would have been served had Mr Watts raised the question of the threats to Ms Castle was not apparent from the applicant's submissions.

The relevant principles

In PFC v R [2011] NSWCCA 275 this Court (Giles JA, Hoeben and Hall JJ) had occasion to consider, and restate, the principles relating to incompetence of trial counsel as a ground of appeal (commencing at [66]):

"Before dealing with specific submissions by the appellant, we set out the principles applicable to a ground of appeal raising incompetence of counsel. In Montero v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said -

"[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include -

'2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognized as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.' (p 685, per Gleeson CJ)

[156] Earlier, Gleeson CJ had said -

'As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.' (p 683)

[157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms -

'... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.' (p 684)

[158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said -

'16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks."

[67] Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336 -

"Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere."

Consideration and conclusion

Having listened carefully to his evidence, and having observed him as that evidence was given, I found Mr Watts to be an impressive witness. Whilst there was no specific evidence of it, it can readily be inferred that in his capacity as a public defender Mr Watts would have conducted many cases between 2006 and the present time. In these circumstances, because of the significant period which has elapsed since the applicant's trial took place, Mr Watts was at a considerable disadvantage in being able to recall relevant events. Notwithstanding that disadvantage, he gave his evidence in a careful, measured and thoughtful fashion. He was clearly a truthful witness and for the reasons discussed below, I am not satisfied that he made the various statements attributed to him by the applicant and Ms Castle.

In my view, having regard to the applicable principles which I have set out above, none of the matters relied upon by the applicant in support of this ground have any merit. In particular, I am satisfied that the applicant received a fair trial and that there was no miscarriage of justice at all, let alone any miscarriage of justice arising from anything done or not done, or any decision made or not made, by Mr Watts. I have reached these conclusions for the following reasons.

Firstly, the submission that Mr Watts failed to bring the asserted "lack of similarity" to the attention of the trial judge in opposing a joint trial reflects a misunderstanding of the provisions of s. 97 of the Evidence Act. The admissibility of evidence of tendency and coincidence is not determined according to a slavish comparison of similarities and dissimilarities. Section 97 proceeds on the basis of inferential reasoning that people behave consistently in similar situations (see FB v R [2011] NSWCCA 217 at [23]; R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492). In determining the probative value of such evidence there is no need for there to be a striking pattern of similarity. In particular, it is not necessary that the incidents or circumstances which are relied upon as evidence of tendency or coincidence be closely similar to the circumstances of the alleged offences, nor is it necessary that the tendency be a tendency to act in a way or to have a state of mind that is closely similar to the act or state of mind alleged against the accused. In R v PWD [2010] NSWCCA 209 Beazley JA (with whom Buddin J and Barr AJ agreed) observed (at [79]):

"The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour."

Secondly, to the extent that this ground relied upon an asserted failure on the part of Mr Watts to properly cross-examine victim 3, the evidence of Mr Watts in cross-examination before this Court clearly explained the reasons why he chose to take the course that he did in respect of that issue. Those reasons included his assessment that the longer the cross-examination of victim 3 proceeded, the more problematic his evidence would become for the applicant. The authorities to which I have referred above make it clear that the issue of what questions should or should not be asked, and what lines of argument should or should not be pursued, are matters within counsel's discretion.

Thirdly, I am not satisfied that the conversation deposed to by the applicant in paragraphs 20 and 21 of his affidavit of 16 July 2013 ever took place. Having regard to the trial transcript (commencing at T 1105 line 30) the applicant's assertion that Mr Watts "failed to cross-examine on counts 30 to 32" is simply incorrect. Moreover, Mr Watts' alleged response to the effect that he would "fall on his sword" as a consequence of a failure to cross-examine victim 3 defies common sense. In Birks (supra) Gleeson CJ (at 685) observed that forgetting to put a question to a witness in cross-examination is something that can happen to the best and most experienced of advocates. However, as Mr Watts pointed out in the course of his evidence, had he omitted to put something to victim 3 he would immediately have asked for him to be re-called, a course which would have clearly been open. The suggestion that Mr Watts told the applicant that he would "fall on his sword" in those circumstances is completely inconsistent with what might reasonably have been expected to have been said by experienced counsel.

Fourthly, I am not satisfied that the absence of Ms Delacore reflects incompetence on the part of Mr Watts. Clearly, the matter was discussed and it is evident that Mr Watts, having given it consideration, concluded that at least to some degree, the issue had been covered by the evidence given by Mr Delacore. He also concluded that upon a consideration of the case as a whole, the evidence of Mr and Mrs Delacore did not provide the applicant with a complete alibi, and that their evidence was capable of potentially supporting both Crown case and the applicant's case in the sense he described in his evidence before this Court. Those conclusions were completely rational and I am not satisfied that the absence of Ms Delacore's evidence operated to the detriment of the applicant.

Fifthly, a reading of counsel's address to the jury (which took place over two separate days) makes it abundantly clear that every possible argument which could have been put to the jury on the applicant's behalf was in fact put by Mr Watts. In particular, Mr Watts repeatedly drew the attention of the jury to what he submitted were important inconsistencies between the evidence of the three principal witnesses. In my view, Mr Watts put the case for the applicant thoroughly, capably and professionally. The transcript is completely at odds with the applicant's assertion that there was a lack of preparation and organisation on the part of Mr Watts in his final address.

Sixthly, and whilst it may well be that Ms Castle was threatened in the manner she asserted, the conclusion reached by Mr Watts that there was no forensic relevance in her complaints in that regard was, in my view, a perfectly reasonable one. Whilst Ms Castle asserted that she was "affected" by the threats made to her, the fact is that she gave lengthy and detailed evidence before the jury which extended over some 44 pages of transcript. There is nothing whatsoever in the transcript of Ms Castle's evidence which supports, in any way, her assertion that her ability to give evidence was adversely affected by the threats which were said to have been made to her. Moreover, although it was asserted that Mr Watts was incompetent because he failed to "raise" the fact of the threats, the forensic purpose for which that ought to have been done was not made clear in the submissions made on the applicant's behalf. It was also not made clear how the alleged adverse effect upon Ms Castle, in terms of giving evidence, would have been alleviated had the matter been raised.

Finally, I am not satisfied that the conversation to which Ms Castle deposed in paragraph 6 of her affidavit took place in the terms she asserted. As I have already observed, Mr Watts is counsel of considerable experience. In that capacity, he is someone who would necessarily be aware of the nature of the appellate process following a trial. The suggestion that he said to Ms Castle that such appellate process would involve "an automatic review of the verdict" is wholly inconsistent with what one would expect a counsel of his experience to have said.

Or is it possible, said the accused, that (victim 3) has learnt about the allegation concerning this incident from the police officer so it is possible he has just agreed with something that he already knew was being said about the accused. You will have to bear that argument in mind of course, members of the jury when you look to see whether there is this independent support that the Crown suggests there is."

In terms of counts 24, 25 and 26, his Honour directed the jury in (inter alia) the following terms (commencing at SU108):

"Now these elements of these counts are the same as elements of similar offences I have already (dealt) with many times, and again, you will no doubt focus your attention on whether you can accept the Crown case that these events occurred and whether they occurred in January 1999. If you are satisfied beyond reasonable doubt then you would find the accused guilty on these counts. This is a case where the Crown points to not only (victim 3's) evidence, but also the evidence of (victim 2) who gave evidence of seeing what the accused and (victim 3) did to each other during this incident.

Now I have just told you that both (victim 2) and (victim 3) gave evidence that they have been fishing with the accused before this event occurred. But the accused said that he had never been fishing with (victim 2) and (victim 3) at the Georges River and he denied ever playing a game with them involving removing their clothes, and he denied any incident where the three of them had sex together. The accused relied on the difference in the evidence of (victim 2) and (victim 3) as to when this episode was supposed to have occurred. (Victim 2) said it was January 1999, and although (victim 3) said the same thing originally, in cross-examination he said it must have been January 2000 because of the issue regarding which Good Friday lunch led to the first occasion of sexual assault by the accused."

The submissions of the parties

The applicant's written submissions in support this ground were not consistent with the terms of the ground itself.

Firstly, it was submitted that the trial judge had demonstrated a bias by "implying that evidence of uncharged acts alleged by victim 2 amounted to evidence of charged acts alleged against (sic) victim 3". That submission bears little or no relationship to the ground in the terms in which it was pleaded.

It was further submitted that bias was demonstrated by the fact that the trial judge "reduced the significance" of the discrepancies in the evidence between the complainants in respect of counts 24, 25 and 26.

The Crown submitted that a fair and objective review of the trial judge's directions established that proper attention had been given to the respective cases advanced by the Crown and the applicant, that his Honour had directed the jury as to the issues of conflict or apparent conflict in the evidence, and that he had provided assistance to the jury as to how those conflicts might be resolved.

The Crown emphasised that the summing up needed to be viewed as a whole and that there was nothing in the directions provided by his Honour to the jury which could give the impression to an impartial observer that his Honour was in any way biased.

Consideration and conclusion

As I have already noted, the summing up must be viewed as a whole and not in a piecemeal fashion. The trial judge, as I have outlined, gave expansive directions to the jury regarding the possibility of concoction and reminded them of a fundamental discrepancy in the evidence, as between victim 2 and victim 3, when summing up in respect of counts 24, 25 and 26.

In respect of uncharged acts, his Honour directed the jury in the following terms (commencing at SU19):

"Now there are some very important directions that I have to give you concerning those allegations which are not the subject of a count on the indictment. Firstly, you must not substitute the evidence of the other acts for evidence of the specific offences charged. In other words if you did not accept the complainant's evidence beyond reasonable doubt when he gave evidence concerning a specific count on the indictment then you must return a verdict of not guilty on that count, even if you were satisfied that the accused did something else which is not the subject of a count on the indictment.

As the evidence was given I was very careful to ensure that you knew what evidence related to specific counts on the indictment and what evidence did not related to a count on the indictment because I did not want you to get confused between the allegations that are the subject of a charge on the indictment and those that are not. You can only find the accused guilty of an offence on the indictment if you are satisfied beyond reasonable doubt that the allegation relating to that charge should be accepted beyond reasonable doubt.

...

The second thing I want to say about this evidence, which is not related specifically to a count on the indictment, is this; you must not use all of the evidence of the other acts as establishing a general tendency on the part of the accused to commit offences of the type that he is being charged with. You must not think that because the accused may have done something wrong on some other occasion, he must have done so on the occasion (sic) which are the subject of counts on the indictment.

The third thing I was (sic) to say in this area is this; if you have doubts as to whether you can rely on the evidence of the complainants when they gave evidence about the assaults which are not the subject of a charge, then, of course, you would have to take those doubts into account when you consider whether the counts on the indictment have been proved beyond reasonable doubt."

In light of these directions, the applicant's submission that the trial judge demonstrated a bias by implying that evidence of uncharged acts alleged by victim 2 amounted to evidence of charged acts alleged by victim 3 is completely without merit.

Further, in the context of such directions, his Honour told the jury (at SU20) that they were not to use all of the evidence of the uncharged acts as establishing any tendency on the part of the applicant to commit offences of the type that were alleged against him. In particular, his Honour pointed out that it would be wrong to conclude that because the accused may have done something wrong on a particular occasion, he must have acted in a similar way on the occasion or occasions which were the subject of the counts on the indictment.

His Honour also took care (commencing at SU69) to ensure that the jury was aware of the particular evidence relied upon to support each particular count. He had previously reminded the jury (commencing at SU20) that they could only find the accused guilty of a particular offence if satisfied beyond reasonable doubt that the evidence in support of a particular charge was truthful.

Further, there is no merit in the submission that his Honour's summing up had the effect of "reducing the significance" of the discrepancy between the evidence of victim 2 and victim 3 as they related to counts 24, 25 and 26. His Honour clearly explained (in the passage in [137] above) the nature of the differences in the evidence.

Finally, although a complaint of bias was made by Mr Watts at the conclusion of his Honour's directions, none of the additional directions he sought touched on the matters advanced in support of ground 4. Accordingly, rule 4 applies and, once again, it was not submitted that the incompetence of counsel extended to a failure to seek further directions on the subject matter of this ground.

For these reasons, ground 4 has no merit.

Ground 5 - The trial judge failed to take sufficient, if any, account of the dismissal in the committal proceedings of the allegations that had been made by victim 3.

The submissions of the parties

At committal, the charges which incorporated the allegations contained in counts 30 to 32 were dismissed by the Magistrate and the applicant was discharged in relation to them. Notwithstanding that, the Director of Public Prosecutions exercised his power pursuant to s. 7(2)(c) of the Director of Public Prosecutions Act 1986 to find a bill in respect of those counts.

It was submitted on behalf of the applicant that the trial judge was aware that counts 30 to 32 were contained in the indictment pursuant to the exercise of the Director's power under s. 7(2)(c) and that in these circumstances, the trial judge had erred by failing to "bring the deficiencies in regard to counts 30 to 32 to the attention of the jury".

The Crown submitted that this ground of appeal was misconceived. It was submitted that such misconception arose from the fact that it was not the function of the trial judge to have regard to the outcome of a committal hearing in the course of his summing up to the jury.

The Crown further submitted that if the complaint made by the applicant in support of this ground was to be understood as a complaint that the trial judge failed to properly put the applicant's case to the jury in relation to counts 30 to 32, that submission should also be rejected having regard to the contents of the summing up.

Consideration and conclusion

The fact of the applicant's discharge by the Magistrate in respect of the allegations in counts 30 to 32 was not the subject of any evidence before the trial judge. His Honour's obligations in summing up to the jury in respect of those counts included an obligation to direct the jury as to the elements of those offences and to remind them of the propositions that were advanced by each party in relation to the evidence in support of them. Those obligations did not extend to dealing with matters which were not the subject of the evidence. In particular, they did not extend to giving directions to the jury about the outcome of committal proceedings. Indeed, it is difficult to comprehend what possible direction could have been given by his Honour in relation to that issue.

Once again, the subject matter of this ground was not something in respect of which counsel sought any further direction from the trial judge. My previous observations as to rule 4, and the absence of any assertion of incompetence on the basis of Mr Watts' failure to seek some further direction in relation to the matter, are equally applicable.

For these reasons ground 5 has no merit.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

Background

I have already set out (in [69] above) the details of the individual sentences which were imposed upon the applicant by the trial judge. Some of those sentences have already expired.

THE GROUNDS OF APPEAL

Ground 1 - The sentencing judge failed to take into account in sentencing in respect of the matters involving s. 78K and 78L of the Crimes Act 1900 that leniency should be granted in circumstances where the offences have been abolished.

Counts 25, 26, 30, 31 and 32 each alleged an offence of homosexual intercourse with a male aged between 10 and 18 years, the penalty for which was imprisonment for 10 years. Each of counts 27, 28 and 29 alleged an offence of attempted homosexual intercourse with a male aged between 10 and 18 years, an offence pursuant to s. 78L of the Crimes Act, the maximum penalty for which was 5 years.

Sections 78K and 78L were repealed by s. 3 and schedule 1[18] of the Crimes Amendment (Sexual Offences) Act 2003 which became operative on 13 June 2003.

Submissions of the parties

In written submissions it was argued on behalf of the applicant that the sentencing judge made no reference in his remarks on sentence to the abolition of s. 78K and s. 78L. Further, relying upon the decision of this Court in Orkopoulos v R [2009] NSWCCA 213, it was submitted on behalf of the applicant that the sentences imposed in respect of these counts should have reflected the fact that the two offences in question had been abolished. This was said to be of particular significance in respect of the offences committed against victim 3, which had occurred a little over one year prior to the abolition of the relevant sections, and at a time when victim 3 was approaching the age of 18 years.

The Crown submitted that the ground of appeal was undermined by the fact that it had been incorrectly asserted on the applicant's behalf that the sentencing judge made no reference in his remarks on sentence to the abolition of the relevant sections. The Crown submitted that it was evident from the sentencing remarks that his Honour was well aware of the repeal of s. 78K and s. 78L.

Further, the Crown submitted that repeal of such statutory provisions did not lead to the conclusion that the crime for which they made provision was rendered nugatory and undeserving of penalty, and that the fact of repeal was simply one factor to be considered in the sentencing process.

Consideration and conclusion

The submission advanced on behalf of the applicant that the sentencing judge made no reference in his remarks on sentence to the abolition of ss. 78K and 78L is, once again, simply incorrect. At ROS13, having set out in brief form the case against the applicant in respect of each of the counts for which he had been convicted, his Honour said:

"In view of the submissions put to me, there are a number of particular things I want to say about the offences.

First, some of the offences for which the offender is to be sentenced were committed on boys who were over the age of sixteen. I have to bear in mind that only a few years after the commission of those offences, (the) legislature amended offences regarding homosexual intercourse so that what the offender did would no longer be a crime when done with a consenting male over the age of 16.

When formulating the appropriate sentences for those counts I will have to bear in mind the changing attitude towards the age of consent regarding homosexual activity. That is not to suggest that the offences were minor by any means. The offender knew that it was against the law. The offender knew that the law existed for the protection of young males and the offender also knew that the consent of the boys followed a long history of persistent sexual abuse by the offender."

It is clear from this passage that his Honour was well aware of the repeal of the relevant legislation.

Moreover, the proposition which is implicit in this ground, namely that leniency was warranted solely because the relevant offences had been abolished, is not consistent with the law as it has been stated by this Court.

The issue was considered in R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88. In that case Abadee J (with whom Grove J and Barr J agreed observed (at [54]):

"The submission was that if Parliament increased a penalty for an offence, and the courts are required to give effect to the concerns manifested by Parliament, then by some parity of reasoning if Parliament repeals an offence, then likewise the courts should give effect to such and not impose a penalty for the repealed offence. This submission should be rejected for the reasons already given. There is a distinction between "offence" on the one hand and penalty on the other. Indeed, as I have already indicated it is difficult to conceive how, putting aside an express statutory provision there could be a conviction for an offence without a penalty at all."

His Honour went on to say (by reference to the judgment of Hunt CJ at CL in R v Beserick (1993) 66 A Crim R 419 at 442 at [56])

"His Honour did not suggest that there could still be a charge, a conviction for the charge, but that no sentence could or should be imposed... Such a result would be surprising. It would offer little comfort to the victim, nor any corresponding benefit to the public to have such a serious conviction found, indeed, even the subject of a plea, but without punishment for it. In my view if there is no impediment to the continued prosecution of buggery offences committed prior to 1984, it follows that then there is no restriction on the court's power to impose punishment on conviction, for such an offence".

In the same case Grove J observed (at [20]):

"I have indicated that the argument advanced by the appellant was premised upon his claiming to have been punished for conduct for which criminal sanction had been abolished. The premise is flawed in that this was not simply a case of consensual sodomy by adult males in private unembellished by any other circumstance of culpability. Inter alia, Abadee J has analysed the operation of the Interpretation Act and I agree with his conclusions applicable to this case, however I perceive force in the argument that, if in a given case the circumstances demonstrated a consensual act unaccompanied by any matter of aggravation, abolition of the criminal sanction might be categorized as extreme reduction of penalty and ...parity of reasoning from cases like R v Hartikainen (CCA (NSW) unreported 8 June 1993) could result in nominal imposition becoming appropriate."

In Orkopoulos (supra), McClellan CJ at CL (having made reference to the decision in Pritchard) said (commencing at [99]):

"It follows that when an offence has been abolished there may be circumstances where a nominal penalty is appropriate. However, much will depend on the nature of the offence and the community attitude to the offence at the time it was committed. Grove J discussed this possibility in Pritchard. Apart from the circumstances relating to the particular offence, which requires consideration of the criminality involved, the personal circumstances of the offender and, in sexual matters, the relationship between the offender and the "victim" must also be considered. However, although changing social attitudes may be reflected in a change in the law, obedience to the law as it exists remains the obligation of every person.

[100] Changes in community attitudes to particular offences will generally evolve over time. As the Chief Justice emphasised in MJR (at [11]) when an offence is ultimately abolished it may be expected that the sentences imposed in a period before its abolition would have become more lenient, reflecting the developing change in community attitude. In the present case the most recent s 78K offences occurred ... approximately between 3½ years and 6 years before their abolition. Although it may be accepted that community attitudes were evolving by that time there was still a significant period before the legislature determined to lower the age of consent. The offences were primarily designed to protect young persons from sexual exploitation by adults, a matter which our community views with considerable concern. To my mind considerations of punishment, retribution and the deterring of other persons from committing criminal offences of a similar character had the same significance as they would have had if the offence had remained. However, deterrence both personal and general with respect to the particular offence is of no continuing significance."

As previously noted, ss. 78K and 78L were repealed from 13 June 2003. The following table demonstrates the relationship between that date, the date of offending, and the age of the victim at the time of the offending:

Count

Section

Period of offending

Age of victim

Sentence

25

78K

January - February 1999

14

5 yrs

26

78K

January - February 1999

14

5yrs

27

78L

April - August 2000

15 -16

2 yrs

28

78L

April - August 2000

15 -16

2 yrs

29

78L

April - August 2001

16 - 17

2 yrs

30

78K

March 2002

17

3 yrs

31

78K

March 2002

17

3 yrs

32

78K

March 2002

17

3 yrs

As demonstrated in the table, the offending occurred between approximately three and half years and 15 months prior to the repeal of ss. 78K and 78L

I have considered the overall circumstances of the applicant's offending in more detail in my consideration of ground 2. For present purposes, it is sufficient to note that those circumstances included a sustained period of offending in which the applicant demonstrated a significant breach of trust and which involved him taking positive steps to become close to the families of each of the three victims for his own illegal purposes. For these reasons, as well as those that I have more fully considered in respect of ground 2, the criminality of the applicant was appropriately described by the sentencing judge as "enormous".

The offending in counts 25, 26, 27 and 28 occurred between approximately three and four and a half years prior to the repeal of ss. 78K and 78L. Although the periods between the offending in counts 29 to 32 and the date of repeal were shorter, those periods were nevertheless significant. As McClellan CJ at CL pointed out in Orkopoulos (at [100]), it may well be accepted that community attitudes were evolving by that latter period of time. However, it remains the case that there was still a significant period between the date of the applicant's offending and the date on which the provisions were repealed.

Further, as McClellan CJ at CL pointed out, offences in s. 78K and s. 78L were primarily designed to protect young persons from sexual exploitation by adults, a matter which the community views with considerable concern. In the circumstances of the present case, considerations of punishment and retribution, as well as the deterrence of other persons from committing criminal offences of a similar character, had the same significance as would have been the case had the relevant sections not been repealed.

Taking all of these matters into account, there is no merit in this ground.

Ground 2 - The sentences both individually and cumulatively are manifestly excessive.

The sentencing judge's reasons

At the outset of his remarks on sentence (at ROS1) the sentencing judge made the following observations:

"These offences extended over a ten year period. They involved systematic sexual abuse and seduction of boys who were vulnerable because of their age and because of the relationship which existed between them and the offender. The offender manipulated not only the boys themselves, but also their parents and others, so that he could continue his illegal activities.

Each offence was a serious breach of the Criminal Law, but there were so many offences, and they occurred over such a long period of time, that it is right to describe the offender's criminality as enormous.

Nor has the offender shown the slightest bit of remorse for what he has done. He is not to be punished for having pleaded not guilty and requiring his victims to spend lengthy periods in court detailing distressing and embarrassing details of the teenage years. The offender was entitled to do that without penalty. But this circumstance made it obvious that the offender did not care about the harm he caused to his victims to his sexual abuse of each of them".

Having dealt with the facts in relation to the particular counts for which the applicant was to be sentenced, his Honour said (at ROS 15):

"...in each case there is no suggestion that the offender overcame the will of the complainants by means of force or violence. The offender was more subtle than that. He obtained the consent of the complainants by approaching them at a vulnerable age and seducing them. He involved himself in their lives and manipulated them and their parents. He did not need to use force or violence.

I recognise that these offences would have been worse if the offender had done so although it is not a matter of mitigation for an offence that a more serious offence was not committed.

The offences were of course serious, even when the complainants consented. These laws exist to protect young people who are vulnerable. These offences demonstrate the ease with which clever an (sic) manipulative offenders are able to obtain the consent of young boys to indulge in sexual activity which if they had been older they would have immediately rejected. These offences are serious whether or not the complainants consented to them."

His Honour continued (at ROS 16):

"And finally, in relation to the offences, it is important to make specific comment (sic) the significant breach of trust which the offences involve. The offender was given a privileged position by the parents of each of the complainants. No doubt part of the reason that they did so concerned the fact that the offender was a fellow churchgoer who was trusted because of that fact."

His Honour then turned to consider the applicant's subjective case. He noted (at ROS 16) the applicant's contributions to the community, the absence of any criminal record, the fact that others in the community had benefited from his good work and the fact that he was a person of otherwise good character. As to the last matter, his Honour adverted (at ROS 18) to the fact that in many, if not most, cases involving abuse of trust in circumstances such as the present, offenders are generally of prior good character and it is that character which enables them to commit the offences in the first instance. However, his Honour expressly acknowledged that the applicant was entitled to the benefit of his otherwise good character, in the sense that apart from sexually assaulting these three complainants he had committed no other offences and had done a great deal of good within the broader community.

The submissions of the parties

It was expressly acknowledged in the applicant's written submissions that condign punishment is called for where grave and repeated sexual assaults are perpetrated upon young children, particularly by a person in a position of trust and authority (see R v JCW (2000) 1112 A Crim R 466 per Spigelman CJ at [121]). The present case falls squarely within that description.

It was submitted on behalf of the applicant that in sentencing him for each of the offences, the sentencing judge should have had regard to the objective seriousness of the offending but had failed to do so. In this respect, reliance was placed on the fact that s. 61M of the Crimes Act, under which a number of the counts were brought, covers a wide range of offending and that in the case of the applicant, at least some of the offending charged under that section fell towards the lower end of the scale. It was also submitted that the manifest excess of the sentences imposed was exacerbated by the manner in which they had been structured.

In oral submissions, emphasis was placed on the fact that none of the offending involved physical coercion, at least in the form of assault or similar conduct, on the part of the applicant. This, it was submitted, constituted a mitigating factor. As I understood it, the submission amounted (at least in part) to the proposition that the sentences imposed by the sentencing judge reflected a failure to take into account that particular circumstance.

The applicant's written submissions also referred the Court to other cases which were said to have involved multiple victims, and offending which spanned a lengthy period of time commensurate with the period in the present case. Those decisions included R v Katon [2008] NSWCCA 228, Orkopoulos (supra), R v Dunn [2004] NSWCCA 346, R v AB (unreported CCA (NSW) 7 July 1997); R v Fisk (unreported CCA (NSW) 21 July 1998). There was also reference made in the written submissions to unreported judgments of judges of the District Court in relation to these matters, along with the sentencing tables published by the Public Defender's Office.

Finally, it was submitted that since the period of the applicant's offending, there had been significant changes in sentencing practice relating to this kind of offending. These changes were submitted to have operated to the detriment of the applicant, in the sense that there had been a trend towards the imposition of lengthier sentences. This was said to be a further reflection of the manifest excess of the sentences which had been imposed, and it was submitted that the applicant should have been sentenced according to the sentencing practices that applied at the time of the offending.

The Crown submitted that the offences for which the applicant had been convicted needed to be viewed in the context of the entirety of his offending conduct, and, importantly, against the backdrop of the relationship between the applicant and the families of each victim. The Crown submitted that the applicant had misused his position as a teacher, within a church environment, to cultivate a close relationship with the victims and that in doing so he had committed a grave breach of trust.

In terms of the structure of the sentences, the Crown submitted that matters of accumulation were necessarily matters for the exercise of the sentencing judge's discretion, and that there was nothing to suggest that such discretion had miscarried in any relevant way. The Crown also submitted that his Honour correctly rejected the submission that the sentences imposed should be served wholly concurrently.

Finally, the Crown submitted that there was limited utility in engaging in comparisons of this case with others in an effort to establish that the sentences imposed in the present case were manifestly excessive. In this regard, the Crown relied upon the fundamental proposition that each case falls to be determined on it own facts and that on the facts of this case, there was nothing whatsoever which provided support for the applicant's contention that the sentences were manifestly excessive.

Consideration and conclusion

In order to establish that a sentence is manifestly excessive an applicant must demonstrate that the sentence is unreasonable or plainly unjust (see R v Dinsdale (2000) 202 CLR 321 at 325). In my view, the applicant in the present case has failed to do so.

I have already set out the observations of the trial judge in relation to the circumstances of the offending. Those observations were wholly justified on the evidence which was before him. It is also evident from his Honour's remarks on sentence that he took into account such subjective matters upon which it was open to the applicant to rely.

Put simply, this was extremely serious offending. It was committed over a long period of time, it involved a variety of illegal sexual acts perpetrated on young boys, and it involved a serious and consistent breach of trust on the part of the applicant. The need for the imposition of condign punishment in those circumstances is obvious, and was a matter which was expressly acknowledged in the applicant's written submissions.

The proposition that the manifest excess of the sentences was evident from, and indeed exacerbated by, the manner in which such sentences were structured is in my view without merit. Multiple offending had occurred over a lengthy period of time, and some degree of accumulation was necessary. The applicant has failed to point to any particular circumstance which might suggest that the discretion of the trial judge to accumulate the sentences as he did somehow miscarried.

It may, in a given case, be appropriate to take into account sentencing practice as it stood at a date of the commission of the offence. This is particularly so when sentencing practice has moved adversely (from the point of view of an offender) between the time of commission of the offence and the time of sentencing. However, such circumstances do not mandate the intervention of this Court (see for example Mottram v R [2009] NSWCCA 210 cited in RLS (supra). What his Honour was required to do was to impose a sentence which was appropriate having regard to all of the circumstances. In my view, he did so.

Further, I do not accept the submission that the absence of physical coercion by the applicant upon the victims is an indication that the sentences are manifestly excessive. Coercion need not be physical. It may take many forms. In any event, his Honour said (at ROS 15):

"In each case there is no suggestion that the offender overcame the will of the complainants by means of force or violence. The offender was more subtle than that. He obtained the consent of the complainants by approaching them at a vulnerable age and seducing them. He involved himself in their lives and manipulated both them and their parents. He did not need to use force or violence".

It follows that to the extent that it was relevant, his Honour obviously took into account that the applicant's coercion towards the three victims was not physical. That said, the inherent nature of the applicant's offending was coercive to some degree, albeit not in a physical sense.

Finally, and without referring to them specifically, the sentences to which this court's attention was drawn for comparative purposes are, in my view, of limited value. Care must obviously be exercised when comparative exercises of that kind are advocated, a circumstance about which both this court and the High Court have commented in the past (see for example Han v R [2009] NSWCCA 300 Campbell JA at [2] and Rothman J at [34]; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [53]-[56]).

There is no merit in this ground.

CONCLUSION

I have previously referred to the submission advanced on behalf of the applicant as to how the court should approach the question of granting an extension of time in view of the delay. Implicit in that submission was an acceptance of the fact that if it were concluded that there was no merit in the grounds, the application for an extension of time would be refused.

In these circumstances, and in light of the conclusions I have reached, I propose the following orders:

(1) an extension of time in which to file the notice of appeal against conviction is refused;

(2) an extension of time in which to file the notice of application for leave to appeal against sentence is refused.

BARR AJ: I agree with Bellew J.

**********

Amendments

18 October 2013 - Correction to paragraph reference

Amended paragraphs: 148

Decision last updated: 18 October 2013

Medium Neutral Citation:	Winter v R [2013] NSWCCA 231
Hearing dates:	23 September 2013
Decision date:	18 October 2013
Before:	Hoeben CJ at CL at [1] Bellew J at [4] Barr AJ at [200]
Decision:	(1) An extension of time in which to file the notice of appeal against conviction is refused. (2) An extension of time in which to file the notice of application for leave to appeal against sentence is refused.
Catchwords:	CRIMINAL LAW - APPEAL - application for extension of time - where delay of more than six years - approach to be taken in determining application for extension of time - necessity for the applicant to adduce evidence which fully explains the delay CRIMINAL LAW - APPEAL - incompetence of counsel - principles to be applied CRIMINAL LAW - SENTENCE - where some offences for which appellant convicted had been repealed - approach to be taken in sentencing for such offences - whether sentence manifestly excessive
Legislation Cited:	Crimes Act NSW 1900 Crimes Amendment (Sexual Offences) Act NSW 2003 Criminal Appeal Act NSW 1912 Director of Public Prosecutions Act NSW 1986 Evidence Act NSW 1995
Cases Cited:	FB v R [2011] NSWCCA 217 Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 Han v R [2009] NSWCCA 300 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Ignjatic v R (1993) 68 A Crim R 333 Lodhi v R [2007] NSWCCA 360 Montero v R [2013] NSWCCA 214 Orkopoulos v R [2009] NSWCCA 213 PFC v R [2011] NSWCCA 275 RLS v R [2012] NSWCCA 236 R v AB (CCA (NSW) 7 July 1997 (unreported) R v Beserick (1993) 66 A Crim R 419 R v Birks (1990) 19 NSWLR 677 R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Dinsdale (2000) 202 CLR 321 R v Dunn [2004] NSWCCA 346 R v Fisk CCA (NSW) 21 July 1998 (unreported) R v Glennon (1992) 173 CLR 592 R v Gregory [2002] NSWCCA 199 R v JCW (2000) 1112 A Crim R 466 R v Katon [2008] NSWCCA 228 Mottram v R [2009] NSWCCA 210 R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88 R v PWD [2010] NSWCCA 209 R v Unger [1977] 2 NSWLR 990 TKWJ v R [2002] HCA 46; 212 CLR 124
Category:	Principal judgment
Parties:	Neal Richard Winter - Applicant Regina - Respondent
Representation:	Counsel: Mr I Wallach - Applicant Ms H Wilson - Crown Solicitors: Mr H Ginges - Applicant Mr S Kavanagh, Solicitor for Public Prosecutions - Crown
File Number(s):	2004 / 13377
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2006-06-23 00:00:00 Before: Berman DCJ

Count	Section	Period of offending	Age of victim	Sentence
25	78K	January - February 1999	14	5 yrs
26	78K	January - February 1999	14	5yrs
27	78L	April - August 2000	15 -16	2 yrs
28	78L	April - August 2000	15 -16	2 yrs
29	78L	April - August 2001	16 - 17	2 yrs
30	78K	March 2002	17	3 yrs
31	78K	March 2002	17	3 yrs
32	78K	March 2002	17	3 yrs