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[2025] NSWCCA 102
Court of Criminal Appeal (NSW)
2025-07-11
Harrison CJ at CL at [1]Garling J at [96]Yehia J at [98]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Futcher v R [2025] NSWCCA 102
Hearing dates: 26 May 2025
Date of orders: 11 July 2025
Decision date: 11 July 2025
Before: Harrison CJ at CL at [1]
Garling J at [96]
Yehia J at [98]
Decision: (1) To the extent necessary, grant leave to appeal.
(2) Refuse leave in respect of Ground 2.
(3) Dismiss the appeals against conviction and sentence.
(4) Refuse bail.
(5) Decline to admit as fresh evidence or howsoever otherwise described the annexures to the affidavit of Neil Albert Futcher sworn 9 October 2024.
Catchwords: CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses
CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence
CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic
Legislation Cited: Crimes Act 1900 (NSW), ss 79 (repealed), 80 (repealed), 81 (repealed), 81A (repealed)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Evidence Act 1995 (NSW), s 165B
Surveillance Devices Act 2007 (NSW), ss 4, 20(1)(a)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited: AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
AS v R [2022] NSWCCA 291
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Crane v R [2024] NSWCCA 112
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Dawson v R [2024] NSWCCA 98
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32
Hanna v R [2023] NSWCCA 182
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
JP v R [2024] NSWCCA 163
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
RA v R [2020] NSWCCA 356
Reed v R [2006] NSWCCA 314
Reyne (a pseudonym) v R [2022] NSWCCA 201
RM v R [2024] NSWCCA 148
The King v ZT (2025) 99 ALJR 676; [2025] HCA 9
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Toller v R [2021] NSWCCA 204
Warren v Coombes (1970) 142 CLR 531; [1979] HCA 9
Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21
Category: Principal judgment
Parties: Neil Albert Futcher (Applicant)
Rex (Respondent)
Representation: Counsel:
C Young (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2015/97239; 2024/478239
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 14 September 2016, Neil Futcher was found guilty of 22 historical sexual offences committed against six young male complainants in the period 1974 to 1981. At the time of the offending, Mr Futcher was employed as a teacher and as a swimming coach. The key issue at the trial was whether the Crown had established the alleged sexual acts beyond reasonable doubt. Mr Futcher gave evidence denying that any sexual activity with the complainants had occurred.
On 27 January 2017, her Honour Judge Girdham SC sentenced Mr Futcher to an aggregate term of imprisonment of 18 years and 4 months with a non-parole period of 11 years to date from 14 September 2016. The earliest date on which Mr Futcher will be eligible for release is on 13 September 2027.
Mr Futcher has filed multiple Notices of Appeal. The current Notice of Appeal was filed by Mr Futcher on 20 August 2024, approximately 7.5 years after Mr Futcher was sentenced. It is common ground that the appeal is out of time.
Mr Futcher sought leave to appeal against his conviction on six grounds:
Ground 1: Mr Futcher was denied a fair trial.
Ground 2: The learned trial judge erred in allowing surveillance device evidence that amounted to a miscarriage of justice.
Ground 3: A miscarriage of justice was occasioned by the failure to call all witnesses to give evidence at trial.
Ground 4: The verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence.
Ground 5: The learned trial judge erred in failing adequately and properly to direct the jury in relation to the consecutive outbursts of three witnesses during the trial.
Ground 6: Fresh exculpatory evidence provides inconsistencies to the Crown case and direct evidence.
Mr Futcher also sought leave to appeal against his sentence on one ground:
Ground 7: Mr Futcher appeals [against] his sentence pursuant to COVID lock-ins.
Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912*,* Mr Futcher requires leave to appeal in respect of each of these grounds.
The Court held (per Harrison CJ at CL, Garling and Yehia JJ agreeing), granting leave to appeal on grounds 1, 3, 4, 5, 6 and 7, and dismissing the appeal:
As to Ground 1:
(1) No significant forensic disadvantage was caused by the delay in bringing the proceedings against Mr Futcher, therefore, he was not denied a fair trial. A fair trial does not automatically or necessarily equate to a perfect trial. The presumptive prejudice caused by delay necessarily had to take account of competing interests, including the substantial public interest in the prosecution of child sexual offences. The alleged disadvantage could not be related or traced to some specific or particular or unique event or set of circumstances that significantly and adversely affected the conduct of his defence: [19]-[20] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited.
Dawson v R [2024] NSWCCA 98; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20; Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177; House v The King [1936] HCA 40; (1936) 55 CLR 499; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32; Warren v Coombes (1970) 142 CLR 531; [1979] HCA 9, considered.
As to Ground 2:
(2) The warrants authorising the recording of conversations involving Mr Futcher were not defective. The identification of the police officer in each warrant clearly satisfied the requirements of s 20(1)(a) of the Surveillance Devices Act 2007: [25] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
(3) There was no evidentiary foundation at the trial to suggest the alleged admissions by Mr Futcher contained in the recorded conversations were illegally obtained, unreliable or that their use was unfair and inadmissible. The recordings were properly admitted at the trial: [30]-[31] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
As to Ground 3:
(4) There was no miscarriage of justice occasioned by the Crown not calling the two witnesses identified by Mr Futcher. A fair reading of the transcript of the trial demonstrates there was no ‘refusal’ by the Crown to call anyone, with the prosecutor and defence counsel having agreed upon the witness list: [37]-[38] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited.
As to Ground 4:
(5) The jury’s verdict was not unreasonable. It was the jury’s task to determine whether the complainants were both honest and accurate witnesses. It is a reality that understandable discrepancies in accounts between or among witnesses will invariably be present. Without more, these discrepancies are not necessarily determinative of the existence of a reasonable doubt. The evidence of the complainants was exposed to close scrutiny, and there were no fundamental inconsistencies between or among the complainants concerning critical facts: [56]-[58] (Harrison CJ at CL), [96]-[97] (Garling J).
Reed v R [2006] NSWCCA 314; AS v R [2022] NSWCCA 291; RM v R [2024] NSWCCA 148; Reyne (a pseudonym) v R [2022] NSWCCA 201; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; The King v ZT (2025) 99 ALJR 676; [2025] HCA 9, Hanna v R [2023] NSWCCA 182, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136; Quinn v R [2023] NSWCCA 229; RA v R [2020] NSWCCA 356, considered.
Crane v R [2024] NSWCCA 112; JP v R [2024] NSWCCA 163, distinguished.
As to Ground 5:
(6) The emotional outbursts and unresponsive answers did not cause a substantial miscarriage of justice or indeed any miscarriage at all. Vernacular references to the nature of the charges and potentially pejorative descriptions of Mr Futcher’s alleged involvement in them must have been an anticipated artefact of a trial of this type: [65] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248, cited.
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, considered.
As to Ground 6:
(7) The five documents relied on by Mr Futcher do not amount to fresh evidence. Annexure 1 was provided to Mr Futcher personally in 2015. Annexures 2, 4 and 5 were constructively available to Mr Futcher at the time of the trial. Whilst Annexure 3 is arguably “fresh evidence”, it is highly unlikely the details of the claim outlined in the letter would have caused a jury to entertain reasonable doubt as to Mr Futcher’s guilt for the sexual offending. All documents should be rejected: [71], [74]-[75], [79], [81], [85], [87] (Harrison CJ at CL), [96] (Garling J), [98] (Yehia J).
Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21, considered.
As to Ground 7:
(8) The COVID-19 pandemic was not, and could not have been, a matter which the sentencing judge was required to deal with in sentencing Mr Futcher. He was sentenced well before the pandemic occurred: [90] (Harrison CJ at CL), [96] (Garling J), [101] (Yehia J).
Toller v R [2021] NSWCCA 204, considered.
● 10 counts of “indecent assault on a male” contrary to s 81 of the Crimes Act 1900 (Counts 1, 3, 8, 9, 10, 12, 15, 18, 19, 20);
● 8 counts of “buggery” contrary to s 79 of the Crimes Act 1900 (Counts 2, 4, 6, 7, 13, 14, 16, 17);
● 2 counts of “procure act of indecency by male person with another male person” contrary to s 81A Crimes Act 1900 (Counts 5, 21);
● 1 count of “attempt to procure act of indecency by male person with another male person” contrary to s 81A Crimes Act 1900 (Count 11); and
● 1 count of “assault with intent to commit an act of buggery” contrary to s 80 Crimes Act 1900 (Count 2).
The key issue at the trial was whether the Crown had established beyond reasonable doubt whether any of the alleged sexual acts occurred. Mr Futcher gave evidence and denied sexual activity with any of the complainants. On 14 September 2016, the jury returned verdicts of guilty on all counts.
On 27 January 2017, her Honour sentenced Mr Futcher to an aggregate term of imprisonment of 18 years and 4 months with a non-parole period of 11 years to date from 14 September 2016. Mr Futcher is first eligible for release on parole on 13 September 2027.
Mr Futcher appeals to this Court on the following grounds:
Ground 1: Mr Futcher was denied a fair trial.
Ground 2: The learned trial judge erred in allowing surveillance device evidence that amounted to a miscarriage of justice.
Ground 3: A miscarriage of justice was occasioned by the failure to call all witnesses to give evidence at trial.
Ground 4: The verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence.
Ground 5: The learned trial judge erred in failing adequately and properly to direct the jury in relation to the consecutive outbursts of three witnesses during the trial.
Ground 6: Fresh exculpatory evidence provides inconsistencies to the Crown case and direct evidence.
Mr Futcher requires leave to appeal in respect of each of these grounds: s 5(1)(b) of the Criminal Appeal Act 1**912. As presently framed, none of the grounds of appeal involves a question of law alone.
Mr Futcher also appeals against the severity of his sentence on a single ground as follows:
Ground 7: Mr Futcher appeals [against] his sentence pursuant to COVID lock-ins.
It is common ground that the appeal is out of time. Mr Futcher filed a Notice of Intention to Appeal on 10 February 2017. The expiry date was extended on 16 January 2018 until 30 March 2018. A Notice of Appeal was filed on 23 March 2018. After a series of mentions in relation to the status of Mr Futcher’s legal representation, the matter was closed on 16 August 2018 as no final grounds or submissions had been filed. On 15 March 2021, Mr Futcher filed a Notice of Appeal. On 25 March 2021, the matter was directed to return to Notice of Intention to Appeal status. The current Notice of Appeal was filed on 20 August 2024, approximately 7.5 years after Mr Futcher was sentenced.
Mr Futcher filed an application for release on bail on 24 December 2024. That application is referred to later in these reasons.
Mr Futcher contends that the delay in prosecuting him was such that he has suffered an irreparable forensic disadvantage and that as a consequence could not be given, and did not receive, a fair trial according to law. Mr Futcher was concerned that witnesses may have died, documents may have been lost, the memories of those who were still alive by the time of his trial will have faded and his own ability to investigate the allegations or to refute them will also have been compromised by the passage of so many years. As counsel appearing for Mr Futcher at his trial rhetorically asked the jury, how was he expected to defend himself concerning allegations as old as 42 years and only as recent as 34 years, to which he had been required to respond in court. Mr Futcher submitted that the proceedings should have been permanently stayed.
Mr Futcher referred to several authorities, including Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. The issue of forensic disadvantage caused by delay was extensively considered recently by this Court in Dawson v R [2024] NSWCCA 98. That was a case concerning allegations against the accused that arose from events in 1981 and 1982, but in circumstances where he was not finally put on trial until the middle of 2022, some 40 years later.
On 8 August 2016, counsel for Mr Futcher at trial made an application for a permanent stay of proceedings in relation to counts involving two of the complainants. That application was made on the basis that both men had made police statements in 1997 and that “if the matters were investigated, the matters were decided then not to proceed with”, and that two witnesses, being Mr Carlisle and Mr Futcher’s mother, were dead.
On 12 August 2016, the trial judge refused the application, and noted:
“As to the issue of permanent stay of those counts…on the basis of the delay between the taking of their statements in 1997 and the accused being charged in 2014, that is not a fundamental defect that goes to the root of the trial. Delay and identifiable forensic disadvantage may be the subject of directions to the jury so as to [relieve] against the consequences of the delay. I am not of the view that the lapse of time is such that the accused’s trial is necessarily unfair so that any conviction recorded will bring the administration of justice into disrepute…”.
The relevant principles regarding the granting of a permanent stay are well established. The power to stay proceedings permanently will only be granted in an extreme or exceptional case: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Jago v The District Court of NSW (1989) 168 CLR 23 at 34; [1989] HCA 46; The Queen v Glennon (1992) 173 CLR 592 at 605-606; [1992] HCA 16. In order to justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: Jago at 34; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18], [35].
Fairness to the accused is not the only relevant factor. As the High Court observed in Dupas at [37]:
“A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the ‘social imperative’ as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.”
As to what must be established where, on appeal against conviction, a challenge is brought to a decision to refuse an application for a permanent stay, this Court held in Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177 that the applicant will need to show both error in the exercise of the primary judge’s discretion in the sense of House v The King [1936] HCA 40; (1936) 55 CLR 499 and a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act.
Macri preceded the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, in which the High Court held that the applicable standard of appellate review where a permanent stay of proceedings is sought on the basis that the proceedings amount to an abuse of process is the “correctness standard” identified in Warren v Coombes (1970) 142 CLR 531 at 552; [1979] HCA 9 rather than House v The King considerations.
The trial judge was astute to direct the jury about the theoretical potential for Mr Futcher to be significantly disadvantaged by delay and directed the jury about it in terms that were consistent with s 165B of the Evidence Act 1995. The direction included reference to specific difficulties faced by Mr Futcher, including the inability of complainants to recall precise details, the fact that witnesses had died and that records had been lost. The direction included the following:
“It is most important that you appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish a reasonable doubt about his guilt.
…
As a result, he has been put at a significant disadvantage in the conduct of his defence and I warn you before you can convict the accused, you must give the prosecution case the most careful scrutiny and in carrying out that scrutiny, you must bear in mind the matters I have been speaking about, the fact that each complainant’s evidence has not been tested to the extent it otherwise could have been, and the inability of the accused to bring forward evidence to challenge it or support his defence.”
The Crown submitted that the trial judge’s comprehensive direction to the jury, of which these passages formed part, was sufficient adequately to ensure that Mr Futcher received a trial according to law.
It is trite to observe that a fair trial does not automatically or necessarily equate to a perfect trial. The exercise of judicial discretion to ensure, as far as possible, that Mr Futcher received a fair trial must necessarily accommodate competing considerations. For example, there is in cases such as this, and there was in this particular case, a substantial public interest in the prosecution of serious child sexual offences. The antiquity of the allegations did not reduce that public interest. What might otherwise be considered to be the presumptive prejudice caused by delay necessarily had to take account of such competing interests.
Mr Futcher’s claimed significant forensic disadvantage was based on that presumption. It was that general disadvantage at which the trial judge’s warning to the jury was directed. This is not, and was not at trial, a case in which Mr Futcher’s alleged disadvantage could be related or traced to some specific or particular or unique event or set of circumstances that significantly and adversely affected the conduct of his defence and which rose higher than an understandable and well-articulated concern about the passing of time and the forensic disadvantage that a long delay may be taken to have generated. For example, Mr Futcher does not suggest, or has not explained, that the death or failing memory of some particular witness or witnesses, who might have been called and whose evidence would have corroborated his denials, means that the trial he faced was significantly different than a trial he might have faced if proceedings against him had been commenced earlier.
Ground 1 should be dismissed.
Two covertly recorded conversations involving Mr Futcher were tendered at his trial. No objection to this course was taken by his counsel at that time. Mr Futcher now contends first, that the warrants authorising the recording of these conversations were defective on their face and secondly, that with respect to the first recorded conversation he had been deliberately supplied with “excess alcohol” to encourage a false confession.
The Crown has noted that, as there was no objection taken to the tender of the recordings at the trial, the warrants themselves neither formed any part of the evidence before the jury, nor were they marked for identification.
With respect to the first point, Mr Futcher submitted that “the warrant” was defective because it did not state “the targets [sic, target’s] name”. Mr Futcher cites in a footnote to that submission s 20(1)(a) of the Surveillance Devices Act 2007. That section provides as follows:
20 Contents of surveillance device warrants
(1) A surveillance device warrant must specify the following (the surveillance device warrant particulars) –
(a) the name of the applicant,…
It is reasonably apparent from Mr Futcher’s submissions that he considers the warrant to be defective because it did not name him as “the applicant”. However, the reference to “applicant” in s 20 is defined in s 4 as “the law enforcement officer who applies, or on whose behalf an application is made, for the warrant”. The identification of Plain Clothes Senior Constable Amanda Dean in each warrant clearly satisfied the requirements of s 20(1)(a) of the Act.
With respect to the second point, Mr Futcher gave evidence at the trial that prior to attending the venue and the recorded conversation, he took one and a half pills of Oxazepam and had a “double scotch and a can of or a bottle of Coopers beer”. He said he did not consume any alcohol at the venue before meeting complainant D. Mr Futcher gave evidence that complainant D supplied him with “three schooners” of beer at the venue during the conversation.
Complainant D was cross-examined at trial about alcohol consumption at the venue and said that during the hour-long conversation, he and Mr Futcher consumed “probably around three beers … I don’t think it was any more”. Detective Sergeant Pollock gave evidence that there was a briefing with complainant D in which it was explained alcohol use was not to be excessive and “obviously not to get intoxicated”.
The listening device product identifies that complainant D initially offered to purchase Mr Futcher a beer, asking if he wanted “a middy or a schooner?” Later in the conversation, Mr Futcher offered to get complainant D “another one” and purchased him a Carlton Draught. At the conclusion of the conversation, Mr Futcher offered to purchase complainant D another beer, which he declined.
The Crown submitted in these circumstances that there is no evidentiary basis to suggest that Mr Futcher was deliberately provided with excess alcohol to encourage a false confession, either at the instigation of complainant D or the police. The recording itself supports the fact that Mr Futcher offered to buy alcohol for complainant D on two occasions. Mr Futcher was responsive and coherent in the hour-long conversation and provided significant detail on a range of topics including his time as a teacher, other students and his then current employment. Whilst the conversation included admissions, particularly about conduct towards complainant D, Mr Futcher also refuted certain allegations. For example, he denied going to Kempsey or ever touching complainant A in a sexual manner. Mr Futcher was clearly able to attend the bar and purchase alcohol without issue during the conversation.
The Crown submitted, and I accept, that the recorded conversation was significantly probative, containing alleged admissions, and there was no evidentiary foundation at trial to suggest the admissions were illegally obtained, unreliable or that their use was unfair and inadmissible.
The listening device recordings were properly admitted at the trial. Defence counsel did not raise any objection to the admission of either recording. The lack of an objection is not surprising given the absence of any evidentiary foundation for Mr Futcher’s complaints.
Mr Futcher submitted that the Crown “refused” to call all witnesses whose evidence was “vital” for the full presentation of the Crown case, thereby occasioning a miscarriage of justice and the loss of his right to a fair trial. Mr Futcher identifies 25 potential witnesses by name in support of this ground of appeal. His contention would appear to be that they were not called by the Crown at trial without any justifiable reason for their absence. In particular, Mr Futcher complains about the absence of Detective Senior Constable Amanda Dean and [BJ].
It is instructive in this context to note what occurred at the trial on 29 August 2016, the day before the Crown closed its case, when the following exchange took place:
“HER HONOUR: Nearly towards the end of the Crown’s case?
CROWN PROSECUTOR: We’re very close to it your Honour.
HER HONOUR: I’m going to prepare overnight an elements document. If I could provide that to the parties I’ll try to get it to you in the morning just to go through in relation to the various elements and any corrections you’d like to make please let me know. I approach you because you might like it before you do your closings. It seems silly that if the work goes into a document like that and then it’s left your Honour, until the judge presents it. If the parties have all got it then it might be of assistance to everybody. If you don’t want to use it well and good, I’ve offered it. There was one witness that was referred to I think by the first complainant who hasn’t been called. It’s the young man that was behind the squash courts.
CROWN PROSECUTOR: [BJ].
HER HONOUR: [BJ].
CROWN PROSEUCTOR: Yes.
GALLUZZO: [BJ].
HER HONOUR: [BJ]. He’s not being called?
CROWN PROSECUTOR: He’s not, your Honour. Actually I probably will need to elicit from the OIC that he couldn’t be found, under Jones v Dunkel so that’s on my to do list. Subject to that I believe we’ve called all those that we’ve been requested to call, so unless my friend advises otherwise that will be it for us.” [Emphasis added]
A decision by a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice: The Queen v Apostilides (1984) 154 CLR 563 at 575; [1984] HCA 38.
A fair reading of the transcript of the trial otherwise demonstrates clearly that the Crown prosecutor and defence counsel agreed upon the witness list: there was no “refusal” to call anyone. There is also no evidence that defence counsel asked the Crown to make [BJ] available. In his address to the jury, defence counsel said this:
“[BJ] wasn’t called. You heard why, but that doesn’t mean you can take that any way whatsoever. It can’t be adverse to the Crown. It can’t be adverse to the defence. It’s neutral. Simple as that.”
In the context of the conduct of the trial as a whole, there was no miscarriage of justice occasioned by the Crown not calling [BJ] as a witness. Moreover, the notion that the failure of [BJ] to give evidence was harmful or unfair in some way to Mr Futcher is based, at least in part, upon the notion that he would or could have said something helpful to Mr Futcher. Mr Futcher has not identified or suggested anything that [BJ] was expected to say that would have been of assistance to the defence case.
There is also no evidence that counsel for Mr Futcher asked the Crown to call Detective Senior Constable Amanda Dean. Detective Sergeant Pollock gave evidence that he had taken over the investigation from her in May 2014 and outlined a chronology of the relevant police investigation to the jury. Mr Futcher’s submissions are otherwise silent about what it is alleged that Officer Dean would or could have said or why her absence occasioned a miscarriage of justice.
Ground 3 should be dismissed.
Even though this ground of appeal asserts in broad terms that the verdicts of the jury should be set aside on the basis that they are unreasonable and cannot be supported having regard to the evidence, it emphasises a slightly more limited complaint that the victims of the charged sexual offences were not able accurately or reliably to recall any of the alleged sexual offending in sufficient detail for the jury to have been satisfied that the Crown had proved its case to the criminal standard.
Having regard to the fact that Mr Futcher was unrepresented in this Court, and to the relative importance of this ground in the scheme of his appeal, it was important where possible to assist him to focus his attention in oral submissions upon the particular ground of appeal that he was dealing with at any particular time. It was in that context that the following exchange took place with respect to this ground of appeal:
“HARRISON CJ at CL: I think you might be up to ground 4 on page 43.
APPLICANT: Ground 4?
HARRISON CJ at CL: On page 43 of your written submissions.
APPLICANT: A long way off.
HARRISON CJ at CL: That is the ground that asserts the verdict was unreasonable. You have set out some details in support of that contention.
APPLICANT: Thank you very much.
HARRISON CJ at CL: Ground 4, 43 and following.
APPLICANT: As I referenced earlier, to the 24 or 42 years after the so called events, I wish to point out that - you have read it all - that the verdict of the jury should be set aside.
HARRISON CJ at CL: Can you please slow down?
APPLICANT: The evidence of [Mr R], by his own admission and his own statements that he has tried to erase it from his brain, you know, and then 20 years, events have - 20 years on is given a very broad description of the building I live in. I must put it to you that this description could fit any - most of the blocks of units in Sydney.
HARRISON CJ at CL: Let me just raise this. [Mr R] gave evidence, is that right?
APPLICANT: That is correct, ground 4.
HARRISON CJ at CL: Hold on. Let me stop you for a minute, please. I understand you to say that because of the passage of time some doubt might be cast upon his recollection or the accuracy of his recollection. Is that correct?
APPLICANT: Correct.
HARRISON CJ at CL: Now, you were tried by a judge with a jury and the jury had the ability to see and hear [Mr R], among others, give their evidence. That is correct?
APPLICANT: That's correct.
HARRISON CJ at CL: And the reliability or otherwise of [Mr R] and most other witnesses was the subject of some cross examination and submissions, was it not?
APPLICANT: Yes.
HARRISON CJ at CL: Having regard to that, what part of the verdict do you say is unreasonable if the jury had that special advantage of seeing and hearing these witnesses and exercising the task they had to determine whether they should be believed or not?
APPLICANT: Well, [Mrs BA, MA], the mother of B, stated that she seriously doubted - sorry, she doubted the possibility of any of these charges occurring on a weekend because of school sport.
HARRISON CJ at CL: That is the evidence of one particular witness. Her evidence was not the only evidence, others gave evidence. As I am attempting, I hope clearly, to ask you to consider, the jury had the task of working out who was telling the truth. Whose recollection was sound, whose recollection may not have been sound and where the truth lay. What part of the trial that was engaged in that process do you say produced a verdict that was unreasonable?
…
GARLING J: So pausing there, what you are saying is there was evidence from at least one witness that said these camps occurred and gave evidence of the conduct that you were alleged to have engaged in. There was evidence you say from other witnesses which in part contradicted that evidence?
APPLICANT: Yes.
GARLING J: And you say there are other matters which go to the weight of the evidence. There wasn't an early complaint, for example, or there was not a specific corroboration of the description of the building, but there was evidence of this before the jury. The jury had to decide whether to accept it. What you are, and no doubt as the presiding judge has carefully explained, the jury had the ability which we do not have of hearing and seeing the witnesses give their evidence and making an assessment of the credibility of the witness and the reliability of their evidence in light of all of the totality of the evidence at the trial.
Now, you make these points about other evidence contradicting, in your submissions, but you're asking the Court to overturn the verdict because it was not supported by the evidence, colloquially known as an unreasonable verdict. But what you seem to be telling us is there was evidence one way and evidence the other way.
Why should we intervene when we have not had the benefit of seeing the witnesses, which the jury had? That is what you have to address us on.
APPLICANT: I do understand that. Now, in regard to A, I actually put in the documents received from Canada City of Canada Bay Council which stated A's advice that was a park annexed to where I was living, said there has never been a park. I even supplied the picture from the National organisation that Council supports that shows there has never been a park in the street, so that directly opposes the evidence of Mr A.
HARRISON CJ at CL: I am sorry to stop you but as Justice Garling has just attempted to detail, to point out those kinds of disputes or controversies were before the jury.
APPLICANT: But the jury didn't have that paper.
HARRISON CJ at CL: Didn't have what paper?
APPLICANT: Didn't have the result from Canada Bay Council's, my inquiry, my brother's inquiry.
…
HARRISON CJ at CL: But the evidence in the case, … somewhat axiomatically, was the evidence in the case.
The jury heard evidence put before them in adversary proceedings, that is to say, the Crown case and any material that you on advice were in a position to put before the jury as well.
There was no complaint, as I understand it, that you were somehow prejudiced or adversely affected when the matter went to the jury, that you were a bit short of a gallop on evidence you wanted to put. The evidence went to them and they decided it on that evidence.
APPLICANT: I appreciate what you are saying, your Honour. Well, to go to the evidence that was presented, Mr A was asked ‘Is there a large landmark nearby?’ Well the appellant only lives 100 metres from the biggest concrete bridges in the Southern hemisphere and to miss that is beyond understanding. It is a six lane bridge.
And regardless of the perceived position of the jury, that is a direct statement that they didn't see it. It is, I am sorry, you know, one of the major landmarks of Sydney.
…
HARRISON CJ at CL: Anyway that issue was before the jury and they had to make up their mind on the believability or credibility of this witness about what he said. That is right, isn't it?
APPLICANT: Well, it is, but as I say, the police or the investigating people should they had photographs of the existing building as it was on that day but had made no inquiry of the local Council of what existed there previously. So Detective sergeant Pollack stated ‘No, there is no park there now’.
Well, they already had the statement of Mr A and if they looked at the age that he claimed to have been at the time they should have made inquiries as to what was the situation back in 1970, whenever it was. Anyway, this information should have been passed on to the defence. But they didn't bother. They didn't bother to do the research to go back further. That would have formed a - go into evidence on their appellant as we have and, but they didn't bother with that evidence.
HARRISON CJ at CL: All right. I think we understand that.
APPLICANT: Okay.”
Mr Futcher’s submissions concentrated upon a theme, evident in what he said in respect of Ground 1, that the passage of years in particular rendered the Crown’s witnesses in general and the complainant’s evidence in particular unreliable. Mr Futcher emphasised the fact that not all witnesses had the same recollection of events to which they were similarly exposed. However, each complainant was able to give an account of the sexual acts said to have been performed by Mr Futcher which corresponded to the 22 counts on the indictment. With the passage of time, the level of detail varied between and among these witnesses, but the evidence of all complainants included a description of the sexual act that corresponded to the offences allegedly committed against them and the circumstances in which they occurred.
The Crown submitted that, noting Mr Futcher’s particular challenge to the level of detail provided by each complainant, it is not uncommon for victims to remember specific details about the assaults but not tangential or less significant details: Reed v R [2006] NSWCCA 314 at [64]; A**S v R [2022] NSWCCA 291 at [137]; RM v R [2024] NSWCCA 148 at [231]-[232].
The Crown also emphasised that there was a body of tendency evidence which demonstrated that Mr Futcher had a sexual interest in underage males who he taught or coached. For example, multiple complainants were exposed to pornographic material, inappropriate behaviour while they were at camps or remote locations, and the invitation to Mr Futcher’s unit at Drummoyne, including for a shower, where sexual activity occurred. The tendency evidence was available for a majority of the counts to assist the jury in determining whether the Crown had proved any particular act beyond reasonable doubt.
The recognition in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 of the advantage enjoyed by the jury reflects the “special respect and legitimacy [afforded] to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. Fundamental to our system of justice is the recognition and acceptance of the fact that juries are “well able to evaluate conflicts and imperfections of evidence”: MFA at [96]. Central to the jury’s function in deciding contested factual questions is the assessment of the credibility of witnesses on the basis of what the jury has seen and heard in the context of the trial: Pell at [37]. The jury’s advantage in that respect is not confined to assessments of demeanour of witnesses and can extend to an assessment of the plausibility of a witness’ account in the context of considering how the witness presented: Reyne (a pseudonym) v R [2022] NSWCCA 201 at [5].
“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”
A “case such as the present” includes a case where the principal evidence against an accused person is given by a complainant. It follows that this Court should proceed upon the basis that the jury found the complainants’ evidence to be credible and reliable. Mr Futcher challenges that finding.
As Beech-Jones CJ at CL observed in AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136 at [104]:
“[104] These references to the ‘special significance’ role of the jury, including the advantages it enjoyed in seeing and hearing witnesses, are of particular significance to this matter. The reference in the above passage from Pell to considering ‘inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ must be read with the statement in M v The Queen that those matters be ‘such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted’ (emphasis added). Put another way, an assessment that the ‘evidence lacks credibility for reasons which are not explained by the manner in which it was given’ is necessarily witness and trial dependent.”
Mr Futcher’s ground of appeal contending that the jury verdict was unreasonable asserted that this Court must entertain a doubt about his guilt that cannot be explained by the particular advantage enjoyed by the jury in the setting of the trial. Mr Futcher contends that in circumstances where the complainants’ recollection of events and that of other witnesses was not always perfect, that should have been enough without more to create a reasonable doubt about his guilt: the whole of the evidence in the case must on this approach yield to criticisms of the complainants’ accounts.
The general principles that apply in determining whether a jury's verdict is unreasonable are settled, and were summarised by Bell CJ in Quinn v R [2023] NSWCCA 229 at [82]-[86]:
“82. It is uncontentious that this Court should approach its assessment of whether the jury's verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).
83. The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:
‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.’
84. Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness' evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:
‘notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’
85. Setting aside a jury's verdict as unreasonable is a ‘serious step’ which should not be taken without the Court having regard to the ‘advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury's advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.
86. The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].”
The ultimate question "must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M at 494-495; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence - both its sufficiency and quality - to determine it: M at 492; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8] and [12].
Further, when this Court undertakes an independent assessment of the sufficiency and quality of "the whole of the evidence" in order to decide whether a conviction is unreasonable, it does so within the context of, and by reference to, "the features of that evidence that support [the] respective cases on appeal" and not "by simply reconsidering the parties' respective cases at the trial": The King v ZT (2025) 99 ALJR 676; [2025] HCA 9 at [11]. It follows that "it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not": ZT at [12].
There are frequently appeals to this Court, contending that a jury verdict is unreasonable and cannot be supported by the evidence, in which the applicant has been able to demonstrate that the evidence supporting the Crown case could not support the finding of guilt beyond reasonable doubt. For example, in Crane v R [2024] NSWCCA 112, the Crown alleged that the appellant was guilty as an accessory who procured a very serious assault upon the deceased and was thus criminally responsible for its consequences. The Crown case rested upon the fact and timing of a series of phone calls and text messages, not upon their content, to support an inference of guilt, when several alternative possibilities consistent with innocence had not been excluded. This Court quashed the conviction as there must have been a doubt that could not be explained by the jury’s special advantage of seeing and hearing witnesses in the context of the trial. A review of the evidence made it clear that it did not support a finding of guilt to the criminal standard: the verdict was plainly unreasonable.
In JP v R [2024] NSWCCA 163, this Court quashed the conviction of a mother who had been convicted of sexual offences against two of her children. The Court concluded that the allegations described events that were bizarre, outlandish and difficult to believe. Sweeney J said this at [199]:
“[199] On my own assessment of the quality and sufficiency of the evidence, particularly the evidence of the two complainants, I have a reasonable doubt that the applicant committed the offences charged. I am not of the view that the jury’s advantage in seeing and hearing the complainants give evidence is capable of removing that doubt. I do not believe either complainants’ evidence beyond reasonable doubt. I am of the view that there is a significant possibility that an innocent person has been wrongly convicted.”
In the present case, six complainants gave evidence of the assaults upon them alleged in the indictment. They were cross-examined. Their evidence was exposed to close scrutiny. The Crown case was fundamentally dependent upon acceptance of their accounts. The jury verdicts were not, in contrast, dependent on colourable inferences from circumstantial material or based upon descriptions of events that were at face value difficult to explain or believe. There were no fundamental inconsistencies between or among the complainants concerning critical facts. Nor does Mr Futcher suggest that the complainants’ evidence gives rise to competing and irreconcilable inferences, or that the versions given by them were simply incredible or bizarre and so should not be believed. As the Court was at pains to draw to his attention, it was in these circumstances essential that he explain, if he could, why the jury’s assessment of the complainants should not stand.
In my view, Mr Futcher was not able to do so. His submissions fail to give force to the uncontroversial fact that it was the jury’s task to determine whether the complainants were both honest and accurate witnesses in the accounts they have given. The “mere existence of discrepancies or inconsistencies” in witnesses’ evidence is “scarcely surprising or unusual” and does not necessarily compel a conclusion that a jury’s verdict is unreasonable: Hanna v R [2023] NSWCCA 182 at [24], [85]. As was held in RA v R [2020] NSWCCA 356 at [15]:
“It is not the law that the establishment of inconsistencies in the evidence in a criminal trial of itself establishes that the jury ought to have entertained a doubt. The resolution of such matters is their quintessential role.”
References to minor matters of detail in accounts, as tangential and insignificant as whether Mr Futcher’s unit at Drummoyne was near a park or the Gladesville Bridge, or whether the topographical features of Galston Gorge provided sufficient opportunity for him to have stopped his car, or whether the size and configuration of the change room facilities at the Freshwater Surf Life Saving Club were accurately described in evidence by a witness, say little if anything about the availability or reasonableness of the jury’s conclusions. Put another way, Mr Futcher’s analysis makes no allowance for the reality that understandable discrepancies in accounts between or among witnesses will invariably be present but that, without more, are not necessarily determinative of the existence of a reasonable doubt. Mr Futcher’s attack upon the reasonableness of the verdicts does not attempt to explain how or why the jury could not have been satisfied of his guilt beyond reasonable doubt apart from his ipse dixit that they could not.
As the Crown has correctly observed, the fundamental issue at the trial was whether it had proved beyond reasonable doubt that the acts described by the complainants occurred. The jury were directed in unexceptionable terms that “unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account he has given, you cannot find the accused guilty of the charge concerned”. Upon my reading of the whole of the evidence that was before the jury, to only very limited and selective portions of which Mr Futcher himself directed this Court’s attention, I am not left with a doubt that it was open to them to be satisfied of Mr Futcher’s guilt to the criminal standard on all counts in the indictment.
I would dismiss Ground 4.
Mr Futcher complains that unfairly prejudicial material was admitted into evidence, as the result of which his trial miscarried. For example, there was evidence from a complainant that he had been “raped” by Mr Futcher when describing penile/anal intercourse and this was the subject of comment from neither defence counsel nor the trial judge. In a slightly different category, some answers given by the complainants were unresponsive, including what Mr Futcher described as “outbursts” when he was described as a paedophile, or cognate descriptions. On that occasion, the trial judge told the Crown to control the witness. Defence counsel ultimately sought a direction to the jury from the trial judge. Shortly thereafter, the trial judge directed the jury that “if there are any outbursts that are non-responsive to the questions, bear in mind that they are outbursts and not responsive to the question and I [ask] that you not have regard to those”. The trial judge also reiterated to the jury that day that comments made by the witness “as an aside” should be disregarded.
When summing up to the jury, the trial judge warned the jury in the following terms:
“You must decide the case impartially and dispassionately. Put aside emotional outbursts. Put aside any labels that may have been attributed to the accused. The issue for you is whether, in relation to the count that you are giving consideration, having regard only to the evidence that the Crown has brought in relation to it, is whether the Crown has satisfied you beyond reasonable doubt of the guilt of the accused.”
The question of whether unfairly prejudicial material has been admitted is to be resolved “by consideration of whether the applicant has established a miscarriage of justice and, if so, whether the Court can be satisfied that there has been no substantial miscarriage of justice”, in which case it is appropriate to have regard to the impact of the impugned material in the context of the entirety of the trial, including any directions that are given: Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [89].
Mr Futcher submitted that the jury were not instructed by the trial judge concerning the outbursts and that no warning was given. That is not correct. The jury were directed more than once to disregard emotional outbursts and unresponsive answers and instead to focus on the evidence. Nothing further was sought by defence counsel and there was no application to discharge the jury. The Crown submitted that the absence of any defence request for further directions or a discharge was a strong indication that no miscarriage of justice had been occasioned in the atmosphere of the trial and the directions that had been given in fact.
The issue was dealt with by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 440:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”
It can hardly be doubted that Mr Futcher’s trial involved detailed reference to matters that would have elicited strong feelings and emotions. That would have been apparent from the very start of the trial and it would have continued throughout. It can be accepted that vernacular references to the nature of the charges and potentially pejorative descriptions of Mr Futcher’s alleged involvement in them must have been an anticipated artefact of a trial of this type. I do not accept that some reference in such terms as might have been made by the complainants or any one of them caused a substantial miscarriage of justice or indeed any miscarriage at all. More particularly is this so having regard to the trial judge’s warnings and directions about it.
Ground 5 should be dismissed.
“‘New evidence’ is evidence that was available and not adduced at the trial. ‘Fresh evidence’ is evidence which either did not exist at the time of the trial or, if it did, could not then have been discovered by an accused exercising due diligence.”
The Thompson Cooper Lawyers letter outlines complainant D’s claim against the Trinity Grammar School concerning allegations that Mr Futcher caned him on his buttocks. Denis Pogson was a teacher at the school at the time. Mr Pogson’s statement indicates that he did not witness the administration of corporal punishment “in the way that has been ascribed to Mr Futcher”.
Mr Futcher gave evidence at trial that he would occasionally “use the stick” on complainant D but “that was legal those days”. An earlier application by the Crown Prosecutor to lead evidence from complainant D as to the extent of the corporal punishment was refused by the trial judge.
It is not clear from Annexure 3 when complainant D made his claim against the school. If he did so in approximately 2020, at or about the time the letter was written, this is arguably “fresh evidence” even though the allegation itself was known at the time of trial. Mr Pogson’s statement was provided to Mr Futcher personally in 2015 and is not fresh evidence.
Mr Futcher accepted at his trial that he had administered corporal punishment to complainant D. The extent of the punishment was the only issue in dispute. The details of the claim made against Mr Futcher in the letter written to him by the lawyers representing Trinity Grammar School described the allegations in detail as follows:
“The current allegations made by PM against the School relate to the manner in which you are alleged to have administered corporal punishment on him as a Year 6 student in 1975. School records confirm that PM was in your Year 6 class in 1975. The allegations by PM are that in 1975:
1. You repeatedly caned PM on his bare backside at least once per week in the classroom in front of the class.
2. On each occasion you instructed PM to remove his trousers, bend over a desk classroom, place his hands on either side of his naked buttocks and pull them apart.
3. After PM complied with that instruction, you struck PM with a cane on his exposed buttocks three to four times on each occasion.
4. That on each occasion PM was caned in similar manner by you, PM suffered bruises and lacerations on his buttocks.”
Doing the best I can, it would appear to be Mr Futcher’s contention that the fact that complainant D had brought civil proceedings against the school seeking damages for assault would have been a significant fact for the jury to be told at his trial, as it might have reflected upon the complainant’s motivation and hence his truthfulness in giving evidence for the Crown.
That analysis has in my opinion to be balanced against the likelihood that, properly advised by defence counsel or otherwise, Mr Futcher would have wanted or would have chosen to take the risk, that allegations detailed in the letter outlining what was plainly a further example of sexual offending, might be put before the jury. Even assuming for the sake of the argument that the jury became apprised of both Mr Pogson’s statement and the details of the claim against Mr Futcher while teaching at Trinity Grammar School, it seems highly unlikely that it would have caused them to entertain a reasonable doubt as to Mr Futcher’s guilt for the sexual offending. On the contrary, a revelation to the jury of an unrelated allegation against Mr Futcher of the type particularised in the letter would in my estimation have been plainly inimical to his interests in the criminal trial.
These documents should be rejected.
Complainant E gave evidence at the trial that Mr Futcher was driving along Galston Gorge and that there were a "couple of spots where you could sort of pull over and possibly let cars go through…a cutaway area which was surrounded by a lot of bush". Complainant B gave evidence that on one occasion, Mr Futcher drove along Galston Gorge and parked "in a secluded area just off the road and in the bush".
The letter from Hornsby Shire Council indicates there are currently two rest areas on Galston Road within the Gorge. One has a small parking area “just off the road” with shrubs and the other is at the very bottom of the Gorge. The author of the letter says, “I have been unable to find any further information in relation to other rest stops on this part of Galston Road from the past. As the road is very narrow and steep, there does not appear to be any additional locations that other rest stops could have been provided due to lack of space for vehicles to stop safely”.
The burden of Mr Futcher’s submission is presumably that this information, had it been utilised by him at the trial, would have cast doubt upon suggestions that he could have pulled over anywhere on Galston Road within the Gorge as suggested. Two things may be said about that.
First, this evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Secondly, the letter does not prove that Mr Futcher could not have pulled his vehicle to the side of the road in an area near bushes that was not a designated parking area of the type referred to in the Council’s letter. Considered alongside all of the evidence at trial, the letter is barely capable of demonstrating Mr Futcher’s claims of innocence or of establishing the existence of a reasonable doubt as to his guilt.
Mr Futcher annexes a document about the history of the Freshwater Surf Life Saving Club and relies on “photographic and documentary details” as fresh evidence. Mr Futcher notes in his affidavit that “there is no detail of the internal architectural layout of the said Club building”. Mr Futcher wishes to utilise this material in aid of an attack upon the evidence given by complainant F concerning the layout of the premises. Two things may be said about this material.
First, this evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Secondly, Mr Futcher’s submissions do not address how it is said the photographs demonstrate Mr Futcher’s innocence, or the manner in which it is said that they contradict complainant F’s account. The documents would not cause this Court to entertain a reasonable doubt as to Mr Futcher’s guilt.
“Enquiry regarding Public Park at 22 or 28 Drummoyne Avenue
Thank you for your enquiry. We have checked our records and do not believe there has ever been a public park at either of these addresses.”
The evidence is only relevant to complainant A’s recollection of Mr Futcher’s unit at Drummoyne, and his belief there was a park nearby. His account of sexual activity at the unit was relied on as context evidence and was not a count for which Mr Futcher was found guilty.
Complainant A was cross-examined about his recollection of the park, which he described as “green” and with “trees”. It was put to him by defence counsel that he had never been to the unit. Detective Sergeant Pollock gave evidence in cross-examination that there was no park next door to the unit block at the time police investigated.
This evidence is not fresh. It was constructively available to Mr Futcher at the time of the trial. Its tender should be rejected for that reason alone. Moreover, when the letter is considered alongside the evidence at trial, it is not of such cogency that Mr Futcher’s innocence has been demonstrated. The evidence would not cause this Court to entertain a reasonable doubt as to Mr Futcher’s guilt.
In this respect it should be noted that the documents reveal that the Gladesville Bridge is in very close proximity to Mr Futcher’s unit and yet this complainant could not, or did not, remember it when cross-examined by defence counsel. The jury had that evidence before them in support of the very same submission that Mr Futcher now wishes to make concerning the veracity of the witness’ evidence. When challenged by defence counsel that he had never been to the unit, the witness responded “fallacious”. These competing matters were well and truly before the jury. The question of whether or not there was a “park” near the unit would not significantly have contributed to Mr Futcher’s ability at trial to contend that the witness had never been there.
The admission of Annexure 5 should be rejected.
Mr Futcher appealed against the severity of his sentence on grounds that included the effect upon him of the harsh and restrictive conditions under which he and other inmates were incarcerated during the COVID-19 pandemic. He asks that it be “reconsidered” as the result of being locked down in his cell due to the pandemic and bushfires.
The principles that apply in circumstances such as those upon which Mr Futcher wishes to rely were considered in Toller v R [2021] NSWCCA 204. It is appropriate, particularly having regard to Mr Futcher’s currently unrepresented status, to include in these reasons the relevant passages from that decision, as follows:
“[20] This Court’s power to intervene in a sentence is generally not enlivened unless error of the kind set out in House v The King (1936) 55 CLR 499 at 504 to 505 is established (Betts v R (2016) 258 CLR 240; [2016] HCA 25 at [10]; ‘Betts’). Consistent with that principle, the general position is that any review of a sentence in light of events subsequent to the imposition of that sentence which affect the harshness of prison conditions is exclusively a matter for the executive government (R v Munday (1981) 2 NSWLR 177 at 178).
[21] The material sought to be relied upon by the applicant constitutes fresh or new evidence in the sense that it was not material that was adduced before the sentencing judge. The receipt of such evidence is generally governed by the principles just noted. Hence, one circumstance in which such evidence is received is the so‑called ‘usual basis’ which concerns evidence received in relation to this Court’s ‘independent exercise of [the sentencing] discretion’ (Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]). However, this is confined to cases where House v The King error has been shown, which is not this case.
[22] Otherwise, it has been accepted that in some circumstances this Court can receive new evidence where it is necessary to avoid a miscarriage of justice (Betts at [10]). The circumstances in which evidence not adduced at the time of the sentencing hearing can be adduced in this Court, other than on the ‘usual basis’, are very limited, although not necessarily closed. Two particular categories of such evidence are evidence that should have been, but was not, adduced because of incompetent representation (see for example Rae v R [2019] NSWCCA 284) or concerns medical conditions that the applicant was subject to at the time of sentencing but was not revealed to the sentencing court (see Hoang v R [2020] NSWCCA 324 at [16] to [22]).
[23] However, as a general proposition, evidence concerning society-wide impacts affecting the conditions in custody that occur after the time that the prisoner was sentenced has not been received and that has not been accepted as a basis for interfering with a sentence. Thus, in Cabezuela v R [2020] NSWCCA 107 at [131] to [132], Walton J, with whom Hoeben CJ at CL and Harrison J agreed, said after reviewing (at [129] to [130]) some of the authorities just noted:
‘Here, the evidence of COVID-19 was directed to the additional burden that the appellant may suffer in custody due to his age and health, a factor (in terms of age and health) which was given considerable weight by the sentencing judge. The new evidence relied upon by the appellant may not be utilised to impugn the sentencing judgment which is not otherwise susceptible to challenge on the manifest excess grounds. There is no challenge to the sentencing judge’s assessment of the subjective factors and I have found that the sentence imposed was, even having regard to a strong subjective case, not open to challenge on a manifest ground.
The third and related consideration then is that, this is not a case where the receipt of the material in question may have impacted upon the sentence imposed upon the appellant. This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system. Here, as I have found, the nature of the offences and the offending are of such seriousness that, even if substantially greater weight were given to these subjective factors of age, infirmity of health and additional custodial restrictions such as limitations on contact and exercise due to the effects of COVID-19, no different sentence would properly follow.’”
[24] This passage is consistent with Borg v R; Gray v R [2020] NSWCCA 67 at [46] to [48].
[25] As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, Cabezuela confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender’s conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic.”
Mr Futcher was sentenced well before the pandemic occurred. It was not, and could not have been, a matter with which the sentencing judge was required to deal in sentencing Mr Futcher. Axiomatically, it could not form the basis for an assertion of error or manifest excess upon the basis that the sentence was plainly unjust.
Apart from his submissions put forward on this basis, Mr Futcher did not advance any contention asserting that the sentence was otherwise manifestly excessive or that her Honour somehow erred in any way in the exercise of her sentencing discretion.
Mr Futcher’s appeal against his sentence should be dismissed.
I propose the following orders:
To the extent necessary, grant leave to appeal.
Refuse leave in respect of Ground 2.
Dismiss the appeals against conviction and sentence.
Refuse bail.
Decline to admit as fresh evidence or howsoever otherwise described the annexures to the affidavit of Neil Albert Futcher sworn 9 October 2024.
GARLING J: I agree with the orders proposed by the Chief Judge for the reasons which he gives.
I have considered the submissions of Mr Futcher that his convictions were unreasonable and cannot be supported by the evidence. I am unable to accept these submissions. The 22 convictions involving six different victims were not unreasonable and the evidence upon which they were based was abundant. There is no room for any doubt about any of the convictions.
YEHIA J: I have had the considerable advantage of reading the judgment of Harrison CJ at CL in draft. In respect of Grounds 1, 2, 3, 5 and 6, I agree with his Honour’s analysis and conclusions.
In respect of Ground 4, the applicant contends that the verdicts should be set aside on the ground that they are unreasonable and cannot be supported by the evidence. The fundamental issue at the trial was whether the Crown had proved, beyond reasonable doubt, that the applicant had committed the alleged acts. Although the Crown case included tendency evidence and admissions captured by listening device during a recorded conversation between the applicant and complainant D, the primary evidence was that of the six complainants. Each complainant was cross-examined and, in light of the verdicts, the jury must have accepted the complainants as both credible and reliable witnesses.
In determining Ground 4, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. In assessing that question the Court must conduct its own independent assessment of the evidence. Having read the whole of the evidence, I am left in no doubt of the applicant’s guilt on all counts in the indictment.
As to the appeal against sentence, the sole ground relates to the conditions in custody resulting from the COVID-19 pandemic. As Harrison CJ at CL points out, the applicant was sentenced well before the pandemic occurred. It was not a matter that the sentencing judge could have taken into account in imposing sentence. In the absence of any other asserted error or contention that the sentence is otherwise manifestly excessive, the sentence appeal should be dismissed.
It follows that I agree with the orders proposed by Harrison CJ at CL.
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Name redacted
Futcher
R [2025] NSWCCA 102
(2022) 110 NSWLR 339
(1980) 147 CLR 75
(1996) 186 CLR 427
(2022) 274 CLR 651
(2010) 241 CLR 237
(2023) 97 ALJR 857
(1936) 55 CLR 499
(2023) 112 NSWLR 375
(1989) 168 CLR 23
(1994) 181 CLR 487
(2022) 110 NSWLR 1
(2002) 213 CLR 606
(2020) 268 CLR 123
(2025) 99 ALJR 676
(1984) 154 CLR 563
(2016) 258 CLR 308
(1992) 173 CLR 592
(1970) 142 CLR 531
(2012) 84 NSWLR 581
(2020) 267 CLR 654
(2007) 230 CLR 559
(2022) 96 ALJR 728
(2016) 258 CLR 240
(1981) 2 NSWLR 177
(2014) 252 CLR 601
In my opinion, leave to argue Ground 2 should be refused under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021.
The demarcation between the province of the jury and an intermediate appellate court was reaffirmed by the High Court of Australia in Pell at [38]. The High Court explained this at [39] as follows: