AB v Regina

The Crown case

1. The Crown essentially alleged that the complainant was a student at a northern Sydney high school in the mid-1980s, while the appellant was employed as a teacher at that high school. It was alleged that the appellant socialised with some of the students by way of music rehearsals, surfing, film making and smoking marijuana with them. It was alleged that the appellant gave the complainant marijuana at school on one occasion with intent to have sexual intercourse with him and proceeded to fellate him (Counts 2 and 3) and committed an act of indecency on him in AB's blue van at Jamieson Park (Count 5). There was also evidence by the complainant of regular sexual behaviour between them that was not the subject of any charges. The Crown also led evidence from other persons at the school at the time in relation to sexual incidents and smoking marijuana.

The complainant's evidence on his relationship with the appellant

1. The complainant said that he commenced studying at the high school where the appellant was teaching in 1983 in Year 7 and was there until he left in October or November 1986, on completion of Year 10, and went to work in his father's business. The complainant stated that the appellant was not his classroom teacher but taught art at the school.
2. The complainant said that from what he could remember, he met the appellant in 1984 or late 1983. He said that he was introduced to him by friends at school, including SS, MS and MD. The complainant's evidence was that at music rehearsals in the school's drama room after hours or on weekends, the appellant and the boys would drink alcohol and smoke marijuana. The complainant said that he also recalled smoking marijuana in the appellant's house and his van, which he described as a blue Toyota HiAce van. The complainant gave evidence that he used to go surfing with the appellant at various northern beaches. He said that the appellant took him and other boys surfing from time-to-time in his van and that he and the other boys would smoke marijuana in the van on the way to the beach. The complainant said that he recalled the appellant telling him "Just keep it to yourself, don't tell people".

The complainant's evidence on Count 1

1. The complainant recalled a school talent quest in the middle of 1984 held in the school gymnasium. He said that his friends MS and MD were participants in the talent quest. The complainant stated that before the show started, or during an intermission, the appellant asked him to go with him upstairs to a room off the drama room to have some speed. The complainant described the room as having desks and equipment for speakers and electrical equipment and as having a window that looked over the gymnasium. He said that the appellant had a key to the room.
2. The complainant stated that the appellant lined up speed on the desk and they snorted it. The complainant said that the appellant told him that it was speed. The complainant described the substance as a white powder but said that he had never used such a substance before, although he had smoked marijuana with the appellant on other occasions prior to the talent quest. He said that the substance made him feel agitated, saying that he could not keep still, spoke at 100 miles per hour and when he returned to the gymnasium, he felt "[p]aranoid, hot, weird, very speedy, very fast".
3. The complainant's evidence was that he had never snorted speed prior to the day of the talent quest, but was later involved in the use of illicit substances for 23 years, including speed, LSD, cocaine and heroin. On this basis, he said that he had no doubt that he took speed with the appellant on that occasion.

The complainant's evidence on Counts 2 and 3

1. The complainant gave evidence about an incident that he alleged occurred in the cleaner's room at the high school in 1984. He described the room as small, but stated that there were desks, chairs and hot water systems in there. He said that towards the end of the year, in the cleaner's room, the appellant rolled a joint, the appellant and him started smoking it and then the appellant undid the complainant's pants and started to perform fellatio on him. He said that the joint made him feel relaxed but he froze when the appellant undid his pants. The complainant gave evidence that the cleaner, a Mr Leonard Taylor, walked into the room while the appellant was performing oral sex on him. He said that the cleaner opened the door but did not actually walk in and mumbled something under his breath, turned around and shut the door and walked away. The complainant was asked if he heard what the cleaner mumbled and he answered "Not really, it's just - it was muttered words of something - something - I didn't see that or something like that. He turned round and shut the door and walked away". The complainant said that he had his back to the door, was facing the back wall and the appellant was down on his knees in front of him. He said that he knew who the cleaner was but did not know him personally and he never spoke to him about the incident.
2. The cleaner, Mr Leonard Taylor, was called to give evidence. He said that he no longer worked at the high school but was still employed as a cleaner in an aged care facility. He stated that he recalled the cleaner's room at the high school and said that it had a desk, a chair and a couple of hot water heaters in it. He denied remembering either the appellant or the complainant or ever seeing an incident as described by the complainant. He denied ever smelling marijuana in the cleaner's room. He confirmed that he was very familiar with the smell of marijuana, but never smoked it at work.

The complainant's evidence on Counts 4 and 5

1. These two counts were said to concern an incident which took place at Jamieson Park on 19 October 1985.
2. The complainant gave evidence that the incident occurred on Friday 18 October 1985, the day of his 15th birthday. Subsequently, the complainant changed that date to 19 October 1985, saying that when he gave his original evidence, he was "very confused, overwhelmed".
3. The complainant said that on that day, the appellant drove him to Jamieson Park, rolled a joint and said that he was going to put some cocaine in it. He said that after he and the appellant smoked the joint, he felt groggy and sleepy and passed out in the back of the car. He said that he woke up with his jeans and underwear around his knees and the appellant "haunched behind me with his penis erect about to put it in my backside". He said that he could feel the appellant's penis on the back of his body. He said that he pulled up his pants, as did the appellant.
4. The complainant said that the police turned up at the appellant's van and asked if the complainant was okay. He said that he told the police he was and that he was with his uncle.
5. In relation to the joint, the complainant said that he saw the appellant sprinkle white powder on it. His later experience of drugs made him think it was heroin not cocaine.
6. The complainant described the appellant's penis, from the opportunity he had to see it, as "very large, a weird - it was smaller at the bottom, got bigger as it went up to the top". He said that he thought it had a foreskin. He said that he had not seen any other male penises at the age of 15 and that he was circumcised. By contrast, the appellant's first wife said that the appellant was circumcised, but acknowledged that she made that observation as a grown woman, not under the influence of an illicit substance.

The complainant's evidence on Count 6

1. The complainant gave evidence that when he was 16 years old, he was at the appellant's house and had a shower after wearing his spring wetsuit. He initially said that the incident occurred around the time he left school, in November or December 1986. However, he subsequently said that he thought that the incident occurred before he left school.
2. The complainant said that he was naked in the shower and the appellant came in and sexually assaulted him, starting to suck his penis. He said that after it had occurred, he and the appellant left the shower and he overheard the appellant and his wife arguing. He said that the appellant then drove him home. He said that his parents were unaware that he had been with the appellant when he went surfing on the day of the shower incident and that his parents never gave the appellant permission to take him places.

Uncharged acts

1. The complainant gave evidence of the ongoing sexual contact between himself and the appellant. He said that sexual activity occurred once or twice per week and "too often to recall every moment". He described an occasion when he attended a party at the appellant's home and said that students SS, MS and MD were present, as was the comedian, George Smilovici, Judith Lucy, a teacher from school and the appellant's wife. He said that they drank alcohol and smoked marijuana and the marijuana was provided by the appellant.

Cross-examination of the complainant

1. Cross-examination of the complainant focused on inconsistencies between his evidence in chief, previous statements made by him and evidence given by him at two previous trials relating to the same offences.
2. In relation to the Jamieson Park incident (Counts 4 and 5), the complainant initially denied that he had spoken to anyone about making a mistake in his evidence as to the date that the offence occurred. However, he later conceded that he had spoken to the Crown Prosecutor about his mistake, but nobody else.
3. The complainant was referred to his evidence at the second of the two previous trials, where he had said that he did not know the appellant in 1983 and started to see him at some stage in 1984. He was also shown a copy of his statement of 8 July 2011 and agreed that there was "no mention of pot being smoked when the boys were playing music", although he had said that the appellant "would also smoke pot with us at school", referring to himself, SS, MS and MD.
4. The complainant agreed that when he made his statement in July 2011 about being given drugs in the cleaner's room, he made no mention of alcohol being consumed while the boys were playing music. He also agreed that he made no mention of smoking pot when the boys were playing music in the statement he made to clarify certain matters in October 2011.
5. The complainant agreed that his account of events put the incident in the cleaner's room after the talent quest, as he had said that it occurred in October or November 1984. He initially stated in cross-examination that the incident was his first sexual contact with the appellant and the commencement of the sexual abuse. However, he subsequently gave evidence of another incident, when the appellant allegedly rubbed his penis whilst they were smoking dope in the appellant's car, and stated that this occurred before the talent quest. He agreed that he would classify the rubbing of his penis as sexual abuse and clarified that he would say it was indecent assault, not sexual activity.
6. The complainant was then taken to the evidence that he gave at the second trial, where he said that the sexual abuse started in 1984. He disputed that the sexual abuse started shortly before the talent quest and said that it probably began at the start of the year, but could not recall dates and could not recall the first incident, as it was only "the significant ones that stuck in my mind".
7. The complainant denied that he had changed his evidence about the timing of the first incident of sexual contact because he became aware after the first trial that the appellant was not at the school during a period in 1984. He conceded that he knew that there was a difficulty with his evidence at the first trial, in that he put the first instance of sexual activity in the week prior to the talent quest in 1984. However, he denied that he changed his evidence at the second trial for that reason and maintained that he could not remember the date and should have kept a diary.
8. In further cross-examination on Count 1, the complainant acknowledged that in the second trial, he gave different evidence as to how he exited the gymnasium with the appellant. He agreed that in his July 2011 statement, he gave no details about the location where the incident occurred.
9. The complainant agreed that at the first trial, he referred to the drama room as being on a mezzanine level on the first floor and that he walked there after an invitation, but he could not remember what was said. He agreed that he never referred to upstairs in his July 2011 statement or referred to accessing the AV room through the drama room. He agreed that he was shown photographs of these locations prior to giving evidence at his second trial.
10. The complainant was also cross-examined on differences in the evidence he gave in relation to the incident that occurred in the cleaner's room, the subject of Counts 2 and 3. He agreed that in his statement of July 2011, he had said that he remembered the cleaner opening the door while the appellant was sucking his penis, looking at them, turning around, mumbling something and then leaving. He agreed that in his evidence in the first trial, he said that the cleaner walked in, looked at them and said "oops", shut the door and walked away. He agreed that in cross-examination in his first trial, he said that what he said in his statement was meant to convey that the cleaner looked and saw them both. He also agreed that the smell of marijuana would have been strong enough to have been smelt by the cleaner.
11. The complainant acknowledged that in cross-examination in the first trial, he recalled that the cleaner said "Oops, I didn't see that". He also acknowledged that he gave evidence in the second trial that he could not remember what the cleaner had said and never spoke to him about it.
12. The complainant agreed that he had made no reference to a desk in the cleaner's room in his July 2011 statement. He also agreed that in his second trial, he had initially denied being shown a photograph of the cleaner's room when he made his second statement, but then retracted the denial and agreed that he had in fact signed a photograph of the room. He denied that he had referred to the desk after a conversation with one of the investigating police.
13. In cross-examination on the Jamieson Park incidents, the complainant said that he could not recall where the appellant picked him up. He also agreed that when he made his July 2011 statement, he had said "no part of his penis touched me that I can remember", but maintained that he now remembered feeling something and would "never forget it". It was put to the complainant that the appellant never met his mother, never took him surfing, never filmed him surfing and never took him to Jamieson Park the day after his birthday. He maintained that all of these things happened.
14. It was put to the complainant that the appellant never took him to his home at Bilgola in 1986. He maintained that his evidence was correct. However, he agreed that when he gave evidence about the shower incident in the second trial, his evidence was that the appellant did not remove his clothes when he came into the shower. He agreed that in his evidence at that trial, he made no mention of hearing the appellant and his wife arguing following the shower incident.
15. The complainant was cross-examined on his evidence that he had attended a party at the appellant's Bilgola home. He maintained that that had occurred. He said that he was introduced to Mr Smilovici and thought that Judith Lucy was present, but was not introduced to her. He stated that he had little recollection of how he got to and from the party and said that he was invited verbally.
16. The complainant agreed that he was a heroin addict for 16 years and had used speed, cocaine and LSD. The complainant denied that his drug use was totally independent of anything to do with the appellant.

William John Allender

1. Dr Allender, a toxicologist and forensic scientist, gave evidence on the impact of cannabis upon the human system and classified it as a central nervous system depressant. He said that he could not understand why someone would sprinkle cocaine on a marijuana joint, because the combined effect of the two drugs was some stimulatory and some depressant effects. He said that it was more likely, given the evidence of the complainant that he passed out, that the white powder was heroin. He agreed that morphine could affect memory and impair cognition. He agreed that methamphetamine alters perception and can produce hallucinations and that large amounts of cannabis can have a hallucinogenic affect, as can a very small dosage of LSD.

CC

1. CC was called as tendency witness. He was a student at the school in 1986 and the appellant was his group teacher. He said that during a band tryout on the weekend, the appellant asked him to go to the AV room, which was upstairs and had a view down onto the gymnasium, to assist with trying on costumes. His evidence was that the appellant held a pair of pants against him and asked him to try them on, but he declined. He said that when the appellant held the pants against him, he also wrapped his hands around the back of CC's waist. He said that the appellant then retrieved a second pair, which were a costume and had green leaves on them and said, "Can you take your pants off and try these on for me, it would be a good help, it would be a great help". He said that the appellant held them to his waist with his arms around him as before. He said that at some stage the appellant lifted up his t-shirt and felt around his appendix scar and asked to see the scar and whether they had shaved him in hospital. He said that the appellant then leaned forward, opened up his pants and moved his pants out. He said that the appellant looked to his genital area, which was exposed, and said "just like a shorn sheep", because his pubic hair had started to grow back. There was medical evidence to indicate that CC had an appendix operation on 4 May 1986.
2. In cross-examination, CC agreed that he contacted the DPP after seeing a story on the Sydney Morning Herald website about the appellant. He agreed that he had recently become a practising doctor and that he had told nobody about the allegations between 1986 and 2013.
3. CC agreed that he had been trained in relation to inappropriate sexual contact in his medical training and that one of the aspects of the training was to have an independent witness present to assist in case of future allegations. It was put to him that he never attended a band trial on the weekend when the appellant was present, the appellant never accompanied him to the AV room, the appellant never asked him to try on costumes and never touched his penis on the inside or outside of his speedos. CC disagreed.

IK

1. Another student, IK, also gave tendency evidence. He said that he did not know and had not discussed his evidence with the complainant. He said that while working as a panel beater, he was made aware of allegations about an art teacher at his former school. He said that he decided to make a statement to the police and during the statement, disclosed an incident of sexual assault against him.
2. IK said he started Year 7 in 1985 and got to know the appellant through other students who surfed. He said that the appellant was around quite a bit and shot some video footage of them surfing. He said that he recalled going with the appellant to a room above the gym which had a window looking down on the gym. He said that he and the appellant smoked marijuana there, probably weekly. He said that the appellant drove him in his blue van to local beaches and to his house at Bilgola Beach. He said that other students also went to the appellant's house and smoked marijuana and went surfing.
3. IK said that on one occasion, which he recalled was in winter because he was wearing a full length wetsuit, the appellant was on the beach watching him, SS and another boy, BC, surf and then they went back to the Bilgola house for a shower. He said he was naked in the shower and the appellant came in naked with an erection and reached down and grabbed hold of his penis. He said it did not last for long.
4. In cross-examination, IK said that he went to the appellant's house less than 10 times. It was put to him that the incidents which he said occurred did not in fact occur and he disagreed.

MD

1. Another student, MD, also gave evidence. He said that he was a friend of the complainant and they grew up together. He said that he played the drums in the music room at school. He said that the appellant would open the music room with a key and he recalled seeing the complainant at the music sessions. He said that as well as playing music, they would muck around and get stoned.
2. MD said that he had seen the complainant at the appellant's home a couple of times and had been inside the appellant's home.
3. In cross-examination, MD agreed that he had previously given evidence that students did not smoke pot in the music room, but said that they did it in the stairwell. He said that the appellant never took him surfing and did not provide the marijuana, they had their own. He acknowledged that in his police statement, he did not say that the complainant was at the appellant's home in Bilgola as he was never asked, but stated that he recalled the complainant being there.

Michael Stanton

1. Mr Stanton was a teacher at the school for nearly 33 years. He said that he recalled the complainant from teaching him in the younger years, namely, Year 7. He explained that the classrooms, staffrooms and other utility rooms were secured with locks and required a key to access. He said that staff were issued with a small set of keys and could obtain spare keys from a cabinet in the administration block.

NOR

1. NOR attended the high school in 1984. He said he got on really well with the appellant. He said he went to the appellant's Bilgola home once after participating in a surf film activity. He said he appeared in a film clip for Mr Smilovici, filmed by the appellant.
2. NOR gave evidence that he recalled that people in his group would smoke marijuana in front of the appellant, but he could not remember if the appellant supplied marijuana to him. He said that he saw the appellant smoke marijuana in front of him.

Deirdre Francis Wauchop

1. Ms Wauchop was an art teacher at the school and was involved in organising the talent quest in 1984. She gave evidence that the talent quest was held in the gym and explained that there was a room upstairs from which the lighting grid could be accessed.
2. Ms Wauchop stated that she often observed the complainant coming to the staff room when the appellant was there.
3. Ms Wauchop said that at no time did the complainant smoke marijuana in front of her and she would not have tolerated it. She said that she did not recall going to a party at the Bilgola house.

Leonard John Taylor

1. I have already referred to the evidence of the cleaner, Mr Taylor. Mr Taylor said that he did not remember the appellant being a teacher at the school and did not recall the complainant, NOR or MD. He said that he did not recall ever seeing a school boy in the cleaner's room who should not have been there and definitely did not see anybody having sexual relations in the room or a boy sitting on a desk in the room. He denied coming in to the room, seeing a boy and mumbling something like "oops I didn't see that". He said that he definitely did not smell marijuana in the room at lunch time in 1984.
2. The Crown was given limited leave to cross-examine Mr Taylor pursuant to s 38 of the Evidence Act 1995 (Cth). Mr Taylor agreed that he was very familiar with the smell of marijuana. He said that he would probably have recalled a student being in the room and it would have been a matter of concern if the student was there with a teacher.

Sergeant Ferns

1. Sergeant Ferns, the officer in charge of the investigation, agreed that he obtained a statement from Judith Lucy that she did not know the appellant and had never been to the appellant's house or to Bilgola. He also obtained information from Mr Smilovici that he went to the appellant's house once to film a film clip but never attended a party there and did not recall any children being at the house.
2. Sergeant Ferns also gave evidence of his attempt to find any record of the police questioning the appellant at Jamieson Park on 19 October 1985. His evidence was that he attempted to find a written record or computerised entry of police officers speaking to the complainant on that day, but was unable to find any evidence of such a record or entry.

The appellant's case

1. The appellant gave evidence.
2. The appellant confirmed that he was on leave from the school from 21 May to 9 September 1984 and returned to the school only once during that period to judge a talent quest. He said that at the date of the talent quest, he had never been in the AV room. He denied that on the day of the talent quest he took the complainant to the AV room and provided him with a line of speed and that they both snorted speed.
3. The appellant gave evidence that neither Mr Smilovici, Judith Lucy nor the complainant ever came to a party at his house and denied that the complainant ever came to his house and smoked marijuana. He said that he did not recall the complainant.
4. The appellant denied ever going to the cleaner's room at the high school, denied taking the complainant there and providing him with marijuana or sexually assaulting him. He said that he had keys to other rooms at the high school, mainly the art staff room, but did not have keys to other people's rooms, as they were usually opened up.
5. The appellant said that he did drive students in his blue van for the school surfing video activity in 1985 and during band rehearsals in 1986. However, he denied taking students surfing or filming them surfing at any other time. He denied that there was anyone smoking dope in the school rooms and did not see anyone smoking dope outside. He denied ever taking the complainant to his house. He said that he was circumcised.
6. The appellant denied all of the allegations made by CC and denied ever going to a room above the gymnasium with IK and providing him with marijuana. He denied taking IK surfing or filming him. He denied that IK ever came to his Bilgola home, denied sexually assaulting him and denied that IK was ever in his van.
7. In cross-examination, it was suggested to the appellant that he must have known CC because he must have seen him 800 times as his rollcall teacher. He denied that he was attracted to high school boys in an inappropriate sexual way.
8. In cross-examination, the appellant repeated his denial about providing the complainant with marijuana and denied observing boys smoking marijuana in the stairwell outside the music room or sharing marijuana with MS.
9. The appellant also denied knowing the whereabouts of the cleaner's room and it was put to him that he was lying on this issue. He denied taking the complainant to Jamieson Park on any occasion and denied the allegation of sexual abuse in the shower at Bilgola.

The parties' submissions

1. The appellant submitted there were three matters common to each count. First, the sole witness to give evidence of the allegations was the complainant. Second, there was considerable delay in making the complaint, ranging between 27 years in respect of Count 1, to 25 years in respect of Count 6. Third, the appellant denied each incident.
2. In relation to Counts 2 and 3, the appellant emphasised that the only evidence of the allegations came from the complainant and that his evidence was denied by the appellant. He pointed to the fact that central parts of the evidence were denied by the cleaner, Mr Taylor. In these circumstances it was submitted that the jury should have reasonable doubts on this count.
3. Senior counsel for the appellant submitted that, bearing in mind the evidence of the cleaner, the evidence of the appellant and the fact that the jury did not accept the allegation of supply of drugs, it was not open to the jury to reject the evidence of the appellant and accept that of the complainant. In that context, senior counsel for the appellant submitted that the verdict the subject of Count 1 was in respect of an incident which took place at the same time as that the subject of Counts 2 and 3. However, the appellant accepted that there was, on the evidence of the complainant, a separate incident.
4. In relation to Counts 4 and 5, the appellant submitted that an important aspect of the complainant's account was that the police attended the scene and had taken the complainant's details. The appellant submitted that the fact that the Crown was unable to call a police officer to corroborate the account, or produce a document to indicate that the police had spoken to the complainant, should have raised a reasonable doubt in the mind of the jury. Likewise, in regard to Count 6, the appellant pointed out that this count depended on the uncorroborated word of the complainant.
5. The appellant also submitted that as all verdicts depended on the uncorroborated word of the complainant, the not guilty verdicts on Counts 1 and 4 were inconsistent with the verdicts of guilty on the other counts.
6. The Crown described the cross-examination of the complainant as focusing on some minor inconsistencies between his evidence at the trial and the earlier aborted trials. The Crown emphasised that the jury had the tendency evidence of CC and IK. It was submitted that if this evidence was accepted beyond reasonable doubt, it demonstrated the appellant's tendency to be sexually attracted to young male students and to act upon that tendency. The Crown pointed to the fact that the method of sexual assault described by CC and IK bore similarities to the complainant's allegations, namely, taking them to a small room which he had a key to access and, in the case of CC, sexually assaulting him and, in the case of IK, supplying him with drugs.
7. The Crown also submitted that the evidence of IK and the other students demonstrated that the appellant watched students surfing, had them in his Bilgola house, allowed them to shower there and that he provided marijuana to them and smoked it with them.
8. The Crown pointed to a number of matters which were said to support the complainant's account. They included Mr Stanton's evidence of the ease of accessing spare keys; Ms Wauchop's evidence that the complainant was often in the staff room with the appellant; and the use of the appellant's van to transport students to various destinations.
9. In relation to Mr Taylor, the cleaner, the Crown submitted that it was open to the jury to find him unconvincing and to find that his memory was affected by the long delay between the events in question and the date of the trial. In that context, senior counsel for the Crown submitted that Mr Taylor's evidence had to be considered in the context that he could not remember either the complainant or the appellant, who had been a teacher at the school for some years. She pointed out that he was first spoken to about the incident 27 years after it occurred. She submitted that Mr Taylor had some self-interest, in that if the incident occurred, he should have reported it. She pointed out that the jury saw him give his evidence, had an opportunity to see how he answered questions and observed his demeanour in the witness box. She submitted that they were entitled to accept or reject his evidence. She also pointed out that the jury were taken through his evidence by the trial judge, so were left in no doubt as to the contradictory evidence.
10. The Crown submitted that it was open to the jury to reject the appellant's evidence, particularly having regard to what were described as "the absurdities and implausibility of his list of denials".
11. The Crown submitted that the verdicts of not guilty on Counts 1 and 4 were not inconsistent with the verdicts of guilty arrived at on the other counts. The inconsistency of the evidence on Count 1 was pointed to as a matter that had to be taken into consideration in the circumstances of that count. In particular, the Crown pointed to the inconsistency between the complainant's account of which door the appellant used to exit the gymnasium, the room in which the incident occurred and the additional details supplied about the room after the complainant viewed photographs of it.
12. In respect of Count 4, the Crown pointed to the fact that the complainant's evidence was that the appellant sprinkled white powder on the joint and told him it was cocaine but, as a result of his experience in later life, he came to believe it was heroin. As a result, the charge which originally identified the drug as heroin or cocaine, was amended to refer only to heroin. The Crown pointed out that for the jury to convict on these counts, it would have to accept the appellant's statement to the complainant that it was "speed in Count 1" but not to accept that it was cocaine in Count 4. The Crown also pointed to the evidence of Dr Allender, who stated that if the incident had occurred as described, he would have expected considerably worse or longer effects on a person the age of the complainant.
13. The Crown also pointed to the fact that the jury were properly directed to consider each charge separately and to only consider evidence concerning the particular offence. It was pointed out that they were directed on two occasions that if they had a concern about the credibility or reliability on one count, it was essential that they give consideration and weight to this when considering the other counts. The Crown also referred to the direction that the jury were to approach the complainant's evidence with caution, given that he was essential to the proof of the Crown's case.
14. In that context, the Crown submitted that the different verdicts were consistent with compliance with these directions.

Consideration

1. The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R [2011] HCA 13; 243 CLR 400 at [11]-[14], the Court stated that the approach to be adopted was that laid down in M v R [1994] HCA 63; 181 CLR 487 at 492-494, namely, that the Court is required to make its own "independent assessment of the evidence". If, after taking into account the primary responsibility of the jury in determining the question of guilt or innocence, and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M, the Court also stated (at 494) that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" and "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred": see also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59].
2. As was pointed out by Hayne J in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable, it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude that there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, that the court can conclude that there was no miscarriage of justice.
3. In a case such as the present, where the ultimate conclusion depends to a significant extent on the assessment of conflicting evidence of events which occurred many years ago, the primacy of the jury as the trier of fact and the advantage of the jury in seeing or hearing the evidence must be kept steadily in mind. As was stated by McHugh, Gummow and Kirby JJ in MFA at [59], the function to be performed by the appellate court is to be "performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials". This is particularly so in a case such as the present.
4. It is convenient to first turn to the submissions on what was described as inconsistent verdicts. In the present case, there was no legal or technical inconsistency in the verdicts in the sense described in MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366. As was pointed out by Gaudron, Gummow and Kirby JJ in that case at 366, where the inconsistency arises in jury verdicts on different counts in a criminal trial, "the test is one of logic and reasonableness". Their Honours described the approach of the Court in such circumstances in the following terms (at 367): Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." [internal citations omitted] See also R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [8], [40], [218]-[228]; Osland v The Queen [1998] HCA 75; 197 CLR 316 at [120]-[121].
5. In R v TK [2009] NSWCCA 151; 74 NSWLR 299, Simpson J (as her Honour then was), with whom Latham J agreed, stated at [128] that the focus of the inquiry, in considering the issue, is upon any explanation for the acquittals. Her Honour suggested, at [135], that the question is whether the verdict was open on the whole of the evidence, having regard (relevantly) to the fact of the jury's acquittal on one or some counts and whatever can be discerned as an explanation for that acquittal.
6. In that context, however, it is important to bear in mind that in the present case, the jury were directed to consider each charge separately and that if they had concerns about the credibility or reliability on one count, it was essential that they give consideration to this when considering the other counts. There is no reason to assume that the jury did not comply with that direction: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 420. The fact that they may not have been satisfied beyond reasonable doubt that the evidence of the complainant on a particular count established guilt on that count, does not mean that they could not be so satisfied of his evidence on other counts in the indictment.
7. In the present case, there is at least one significant distinguishing factor in Counts 1 and 4, namely, that they involved a drug other than cannabis. Whilst there was a significant body of evidence that the appellant either supplied cannabis to students, was with them when they smoked it, or smoked it with them, there was no such evidence in relation to the drugs the subject of Counts 1 and 4. In relation to Count 1, the jury was entitled to have reasonable doubt that speed was given to the complainant, particularly having regard to his evidence that he only had no doubt the substance was speed based on his subsequent experience with illicit drugs, a somewhat unsatisfactory way of identifying a particular substance. The jury were entitled to take this into account, along with the other difficulties with his evidence on that count to which the Crown referred (see par [80] above), in deciding to acquit on that charge.
8. In acquitting the appellant on Count 4, while entering a verdict of guilty on Count 5, the jury evidently was not satisfied beyond reasonable doubt that the appellant administered heroin to the complainant. I have referred to the fact that the charge was amended to delete the reference to cocaine, notwithstanding the complainant's evidence that he was told by the appellant that the powder sprinkled on the joint was cocaine. This, coupled with the evidence of Dr Allender, to which I have referred to in par [81] above, could have been sufficient to raise reasonable doubt as to this count in the minds of the jury, without necessarily affecting their conclusion on the other counts.
9. There are number of inconsistencies between the evidence given by the complainant at the trial, the evidence given by him in two previous trials and in his statement of July 2011. I have set them out in pars [25]-[39] above and I do not think that they can be described as minor. Equally, most of them were matters of detail and such variations were not surprising having regard to the length of the time between the incident complained of and the trial, the number of trials and the fact that for many years, the complainant was addicted to illicit drugs.
10. Further, the evidence of the complainant that he was at a party at the appellant's house and he thought Ms Lucy was present, was denied by the appellant. However, there was some evidence that the appellant was acquainted with Mr Smilovici (see the evidence of NOR, referred to in par [52] above) and evidence that students went to the appellant's Bilgola home (see the evidence of IK and MD, referred to above).
11. Importantly, the jury had the tendency evidence of CC and IK, to which I have referred. That evidence, if accepted beyond reasonable doubt, would establish that the appellant had a tendency to be sexually interested in young males and to act upon that tendency. It was open to the jury to accept the evidence of those two witnesses, notwithstanding the appellant's denial of their evidence. In particular, the jury was entitled to reject the evidence of the appellant that he never knew CC, particularly having regard to the fact that he was CC's class teacher.
12. Further, a considerable body of the appellant's evidence was contradicted by other witnesses. In particular, his denial that he ever smoked marijuana with students was contrary to the evidence of IK, MD and NOR. NOR and IK each said that they had been to the appellant's home. MD also said that he saw the complainant there. There was also evidence of Ms Wauchop, who stated that she often saw the complainant coming into the staff room when the appellant was there.
13. There are, however, two further pieces of evidence which require consideration. The first is the complainant's description of the appellant's penis, to which I have referred in par [20] above. That description was inconsistent with the evidence that the appellant had been circumcised (see par [20]). The second is the evidence of Mr Taylor, relating to Counts 2 and 3.
14. As to the first of those matters, it seems to me that it was open to the jury to conclude that what may have been an inaccurate description of the appellant's penis did not affect the credibility of his account of the events in question. The complainant was only 15 at the time of the event and stated that he had never seen another male penis before, apart from his own. In these circumstances, it seems to me that it was open to the jury to accept his account of the events alleged in Count 5, even if they did not accept the accuracy of his description of the appellant's penis.
15. Mr Taylor denied observing the incident the subject of Counts 2 and 3. However, he said that he did not recall either the appellant, the complainant, NOR or MD. His ultimate evidence was that he probably would have recalled the incident had it occurred.
16. This evidence on Counts 2 and 3 was significant. For the jury to be satisfied beyond reasonable doubt on Counts 2 and 3, they would either have to reject the evidence of Mr Taylor or at least conclude that he did not recall the incident, or accept the evidence of the complainant that the incident occurred, while not necessarily being satisfied that Mr Taylor witnessed it.
17. The assessment of each of the competing pieces of evidence involved an assessment of the credibility and reliability of contested oral evidence concerning events which took place many years before the trial. Such an assessment is quintessentially a matter for the jury. Having regard to the fact that they were properly instructed and the advantage they had in seeing and hearing the witnesses, I am not persuaded that the verdict was unreasonable. Any doubt I may otherwise have had as to the reasonableness of the verdict in this case is overcome by the advantage of the jury in seeing and hearing the witnesses.
18. I should add that, having regard to the evidence of Sergeant Ferns as to the keeping of police records in 1985, I do not think that the failure to produce police records of the encounter at Jamieson Park meant that it was not open to the jury to conclude that the encounter with the police occurred.
19. It follows that this ground of appeal has not been made out.

Ground 3

1. This ground concerns a direction given by the trial judge in relation to the Jamieson Park incident the subject of Count 5.
2. To understand the submissions, it is necessary to set out in little detail the evidence and the directions given by the trial judge to the jury.
3. It was common ground that no report or record of the police speaking to the complainant at Jamieson Park on 19 October 1985 was produced at the trial. In that context, Detective Ferns gave the following evidence: "Q. Did you make any inquiry from Local Area Police Command in relation to police archives? A. Yes. Q. How long do they keep records of things like that, a police event, going and speaking to someone? A. Notebooks? Q. Yes. A. Depending on - we're talking about an era back in the 80s, record keeping wasn't as good as what it is today. We keep our records now for 20 years. Some stations - Dee Why still had some records down in the basement, but those records I was after weren't there, so I went to the archives, the New South Wales Police archives, which is the State archives. Those documents weren't there. And I also conducted a Nemesis email, which is an email to every single police officer in the State asking for any assistance in the investigation, but I got a negative result. Q. Just in relation to the notebooks, as you understand it you're not even sure that a notebook entry was made necessarily. Is that the case? A. No, exactly right. I was - no, I don't know that. … Q. So you weren't able to locate any police log or information in relation to that particular night? A. No, I made extensive inquiries. There's also message pads, there's notebooks, duty books, there's COPS event entry. New South Wales COPS only started in 1994, so prior to that everything was done on duplicate and triplicate. I made extensive inquiries. Q. When you talk about COPS, just for the members of the jury - A. COPS is computerised operational policing system. It's our database that we use to look up people and we hold all our information and data on that system. We call it - an acronym for COPS."
4. A number of the directions given by the trial judge to the jury are relevant to this issue.
5. Early in her summing-up, in dealing with the evidence generally, her Honour made the following remarks: "You must understand, members of the jury, that the evidence is the only material upon which you can base your conclusion as to whether each particular offence has been proved beyond reasonable doubt. You look at what is before you, not what is not before you. You do not speculate about what might have been the evidence, you look at what is in fact the evidence before you."
6. Shortly thereafter, her Honour gave the following direction: "It is the evidence that you must consider. You must not speculate about evidence or material that is not before you, for example, if you were to take the view that there was no evidence on a particular topic that you thought was important or significant, you do not then speculate about what that evidence might have been. If you were to think there is a piece of evidence missing on a particular issue, then you simply take that fact into account when you are asking yourself has the Crown proved the accused's guilt beyond reasonable doubt. Do not speculate, you simply take that into account in coming back to answer that ultimate question."
7. In that context, her Honour gave a specific direction in relation to the absence of police evidence. It is in regard to this direction that the complaint is made: "Mr Averre submitted that the absence of police records would show that in fact records do not exist because it did not happen. It might show that, of course you cannot speculate. Detective Ferns said he made an inquiry and got no result. So you must act on the evidence that is before you not what is not before you. You take what is not before you into account in determining if the Crown has proved its case beyond reasonable doubt."
8. It should be noted that the Crown, in written submissions, submitted that the word "not" in the last sentence of this direction was a typographical error. At the hearing, senior counsel for the appellant accepted that this may be correct.

The parties' submissions

1. The appellant accepted that the evidence of Detective Ferns was admissible under s 69 of the Evidence Act. He submitted that the presence of records establishing that police spoke to the complainant at Jamieson Park would have been admissible as evidence that such a conversation did take place. He submitted that the absence of such records was equally admissible. In that context, he pointed to s 69(4) of the Evidence Act.
2. The appellant submitted that in those circumstances, the jury should have been directed that the absence of any record of a conversation was evidence that no such conversation took place. He submitted that the penultimate sentence in the last direction given by the trial judge, set out above, would be understood by the jury as a direction that the absence of police records of the incident was not a factor to be taken into account.
3. The Crown submitted that the criticism of the last direction given by her Honour did not take into account her earlier directions. It was submitted that the submission of the appellant that the failure to find any records constituted evidence that no such conversation took place was misconceived. The Crown submitted that this submission failed to acknowledge the fact that the alleged conduct concerned events in 1985, the nature of the conversation between the police and the complainant and the state of record keeping at that particular time, as described by Detective Ferns.
4. In addition, the Crown pointed out that no argument concerning s 69 was raised at the trial and no redirection was sought.

Consideration

1. Rule 4 of the Criminal Appeal Rules (NSW) applied and the appellant appeared to accept that it was necessary for him to show that, as a result of the direction complained of, he lost a real chance, or a chance fairly open, of being acquitted of the charge in question: ARS v R [2011] NSWCCA 266 at [148]; Poniris v R [2014] NSWCCA 100 at [59].
2. I have set out the three relevant directions above. The first direction instructed the jury to act on the evidence without speculating what the evidence might have been. This direction seems to me to be unexceptional.
3. The second direction explained how the jury should respond to the absence of a piece of evidence concerning a particular issue. The trial judge expressly told the jury that such absence could be taken into account when considering whether the Crown had proved the guilt of the accused beyond reasonable doubt. The jury, acting on that direction, could take into account the absence of a police report in deciding whether to accept the complainant's evidence beyond reasonable doubt.
4. The third direction, the one complained of, is somewhat obscure. However, with respect to the parties, I do not think that read in context, the inclusion of "not" in the last sentence is a typographical error. Read in the context of the previous directions, the trial judge was, in my view, directing the jury that they could consider, in determining whether the Jamieson Park incident occurred, that there was no police report. The warning against speculation did not in my view direct the jury to not adopt that course, particularly in light of her Honour's earlier comments and the final sentence of the direction complained of.
5. The evidence of Sergeant Ferns as to records kept in 1985 disclosed a number of competing possibilities, including that no note was taken of the event or that the records no longer existed. In making the direction referred to, the trial judge was warning the jury that they did not have to speculate as to which inference was correct, but simply take the absence of a note into account in determining whether the Crown had proved its case. In these circumstances, I do not think that the direction lost the complainant a real chance of acquittal and leave to raise this ground should be refused.
6. I do not think that s 69 of the Evidence Act affects the matter. The only relevant evidence was that of Sergeant Ferns. As I have indicated, that left open a number of possibilities. Even if it could be said that the evidence tended to prove that there was no record kept of the occurrence of the event, such that s 69(4) had application, the relevant matter the subject of her Honour's direction was not whether a record was in fact kept, but rather what the jury could make of the fact that no record was produced. As I indicated, the directions stating that this could be taken into account in determining whether the Crown had proved its case did not deprive the appellant of the chance of an acquittal.

Sentence

1. Having regard to the fact that the conviction on Count 6 needs to be set aside, it will be necessary to resentence the appellant. The parties should be directed to provide submissions on this issue.

Conclusion

1. In the result, I would make the following orders: 1. Grant leave to the appellant to appeal on Ground 1 of the notice of appeal. 2. Refuse leave to appeal on Ground 3. 3. Conviction in respect of Count 6 of the indictment be quashed and a verdict of acquittal be entered on that count. 4. Appeal against conviction otherwise dismissed. 5. Direct the appellant to make submissions on the appropriate sentence to be imposed within 14 days of 1 February 2016. 6. Direct the Crown to make submissions in reply within the following 14 days.
2. HOEBEN CJ at CL: I agree with the Chief Justice.
3. RS HULME AJ: I also agree with the Chief Justice.

Amendments 02 March 2016 - Par 5 Change Count 2 to Count 6 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2016