LJW v R

Outline of Crown case 14 I will briefly summarise the evidence given by the Crown witnesses. 15 The main evidence in chief of the complainant was the video of his interview on 5 January 2007. In that video the complainant said that, on the occasion of the trip to Muswellbrook, he went to bed with GL and went to sleep; and later woke up and felt the appellant's penis in his bum with the appellant pushing against him. He cried but did not say anything. The appellant's penis was going in and out; and this lasted for about ten minutes and caused pain. Then the appellant started sucking his genitals. The complainant then kicked the appellant off and ran to the bathroom crying; and wiped himself with toilet paper. When the complainant returned to the bedroom, the appellant went to the bathroom. The complainant then woke up GL, and said that the appellant was raping him and would he swap positions. GL then swapped places in the bed, putting himself between the complainant and where the appellant had been in the bed. The appellant brought them glasses of water each with a little pill in it, and the complainant did not take the pill. 16 In the video the complainant also said there were occasions when he saw the appellant playing with his penis. The most recent was on 31 December 2006 at the house of GL's friend MB. The complainant, GL and MB were upstairs in that house, and the appellant entered the room. At a time when MB had gone downstairs, the appellant pulled out his penis and started playing with it. 17 In the video the complainant also said that on an earlier occasion, the complainant was at GL's house in GL's room. GL and his mother had gone to pick up a book from the library. The appellant came into the room and started playing with himself, moving his hand round his penis. 18 The complainant gave oral evidence that, while the appellant was driving him and GL to Muswellbrook, he saw from the back seat the appellant holding his penis and moving his hand up and down in slow motion, holding the wheel in the other hand. 19 GL's main evidence in chief was also given by the video of the interview on 7 January 2007. In that video, GL said that on the occasion of the trip to Muswellbrook, after going to sleep at night he woke up to see the appellant holding himself over the complainant. GL went back to sleep. He later woke up to hear the complainant crying, and the complainant told him "he raped me". (However, in oral evidence, GL said that what the complainant had said on that occasion was "he's trying to rape me", and GL firmly adhered to that evidence.) When they went back to sleep, he swapped positions with the complainant. On New Year's Eve 2006, GL and the complainant decided to tell the complainant's parents about the matter because it was bugging them. 20 In cross-examination, GL agreed that there had been previous occasions when the complainant had stayed over at GL's house, but been a bit scared at night requiring the complainant's father to pick him up, or the appellant or GL's mother to drive him home. 21 In relation to count 4, GL said that he saw the appellant walk into the room and go to sleep on the couch, and did not see anything else. 22 GS (the complainant's mother) said that in the early hours of New Year's Day 2007, the complainant told her that the appellant had raped him, and GL was then present and confirmed it was true. 23 FS (the complainant's father) also said that the complainant had told him on that occasion that the appellant had raped him; and the complainant's grandparents also gave evidence to the same effect. 24 The complainant's parents also confirmed that there had been an argument between the appellant and FS a few days earlier, resulting in the appellant phoning the police to get FS to leave his house. 25 The complainant's father gave evidence that there were occasions when he had to pick the complainant up from the appellant's house, because the complainant could not sleep when staying there with GL. 26 Jennifer Lecky gave evidence that she remained best friends with the appellant. She said there were three other bedrooms in her house at Muswellbrook apart from her main bedroom, but one of these bedrooms had bunk beds that were usually covered with toys. She did not make any arrangements with the appellant as to who was to sleep where on that occasion, and that as far as she knew they all slept in the same room which had a queen size bed, because other beds were not disturbed. She said she was usually up most of the night and was a light sleeper when she did sleep, and that she would have been aware if she had heard a child crying and that this did not happen. She also said that there was nothing in the linen such as blood that caused her concern. Nobody had any demeanour that caused her any anxious moment or made her feel that anything happened other than that the boys had had a good time. 27 Kevin Lecky also said that he noticed nothing untoward about the boys and that no complaint was made. He too confirmed friendship with the appellant. 28 The appellant's wife gave evidence that after the occasion when the complainant and GL had gone to Muswellbrook to collect Widget, the complainant continued to come and stay at night at their house. She did not recall any occasion when she and GL had gone to the library leaving the complainant in their house. She also gave evidence of her sexual relations with the appellant. They had sex about once a month. She said the appellant had difficulty obtaining an erection as a result of a motor vehicle accident in 2000, and that as at early 2006 she assisted him to obtain an erection by manipulating his penis. It would take him about fifteen minutes to become aroused, and his penis was then not very rigid, but he was able to penetrate her vagina. 29 Detective Donaghy Lewis gave evidence of the interviews in January 2007. She also gave evidence that the only entry on the appellant's record was a low range prescribed concentration of alcohol offence in 1982.

Outline of case for the accused 30 The accused did not give evidence at the trial. His version of events was set out in the recorded interview. This is fairly summarised as follows in the Crown's Summary of Trial: As far as the sleeping arrangements at the Muswellbrook house were concerned, at the boys' request they slept in the same bed - "they asked if we could sleep in the one bed, all with pyjamas on, which we did. I know [the complainant] became disturbed during the night" and "I think I got him some milk, including myself". The Appellant said, "I don't sleep real well, I don't know whether I disturbed [the complainant] by fighting for some of the bed or some of the sheets". He said that the complainant and GL did change places (Q 41); The boys went to bed first (Q 102) but "I don't think it was much ahead of the rest of us though" (Q 103); The discussion about the sleeping arrangements was, "I said to them, 'There's a bed across the hall', and they said, 'Oh, no, we'd like to be with you if that's all right'" (Q 104); He thought that he had slept with his pyjama bottoms on and nothing on his top, but could not be sure (Q 123-4). He "might have had a singlet on or a shirt" (Q 125); He could remember that the complainant was "nearly a little teary, I don't know whether he'd had a bad dream or not" and "I'm not too sure that it wasn't with me either wrestling for some of the sheeting back or moving him over, I have five bad discs in my back and have quite a degree of trouble both sleeping and um, retaining sleep" (Q 135). He thought he had "unsettled him or disturbed him or he was um, just a bit jittery" (Q 137); He understood the complainant was now 13 years old (Q 168) [the interview took placed on 18 January 2007]; "I took a sleeping tablet um, and I thought they might have helped the kids too, but they didn't want to be in that, so they didn't" (Q 275). He offered the tablets "just in a glass of water" and they said, "'No, no, thanks'. I said, 'OK, no problem'" (Q 278). There was one tablet in each glass (Q 311); Forty-eight hours before the allegation was made by the complainant, there was an altercation between the Appellant and the complainant's father (Q 314); The Appellant had a motor vehicle accident in the past, as a result of which his wife had to go to some trouble for him to get an erection of reasonable firmness in order for him penetrate her in intercourse (Q 35) and he did not believe that he had "the capability of the firmness of an erection to penetrate a boy's bottom" (Q 351); He could not recall the complainant going to the bathroom (Q 372); In relation to Count 4, "I did go to see how the games were going with the kids at one stage of being there", but "at no time was I alone in any of the rooms with [the complainant]. If [GL] wasn't there, [MB] was there" (Q 395); In relation to Count 3, "I don't believe I would have sat on the desk, I might have rested up against the desk" as "[i]t would be unusual that I would sit on a desk if it hasn't got that sturdy a legs" (Q 436-7). He could recall at least one occasion when GL and his mother had left the house and the complainant had stayed at the house because of his love of the computer games (Q 438-40); He had received advice from his doctor about a year earlier than the interview that if he did not make some sort of effort to get an erection, he may lose the ability to get an erection altogether (Q 452-3); After they arrived at the Muswellbrook house and were walking down to a river on the property (Q 554), the complainant said to him, 'I think I saw you masturbating' on the trip up. "He told me he believes he woke up from a sleep and I was fiddling with myself" while the Appellant was driving (Q 463-70). The Appellant recalled that "I was sunning myself... it was a beautiful day, they're both asleep um, I think I was trying to, to keep some activity within my penis, if you want to call it that. ...I don't think I was out and out masturbating" (Q 472-3) and he did not ejaculate (Q 502). The complainant "just said to me, 'You know when I was asleep earlier in the car, I think I saw you masturbating'" and "I said to him, 'Oh, there's a reason', I explained it to him" (Q 555-6) and explained to the complainant, "'That's what's behind it, I'm sorry if you saw anything'" (Q 557); He did not take any Viagra on the night they stayed at the farm (Q 631). 31 In addition, in that interview the appellant said that in the afternoon after arrival at Muswellbrook, he went with Mr Lecky and the two boys to the river to check the mouth of a pump in the river. He had no swimming costume, and he stripped to the nude and went into the river to do this. The complainant and GL also went into the river, with trunks on. They splashed around for a while. The complainant took his trunks off at one time. They then returned to the bank and got dressed. 32 GL's friend MB gave evidence that on 31 December 2006 the appellant came into the room where the complainant, GL and MB were playing with computer equipment. The appellant fell asleep. MB said he did not leave the room at any time while the appellant was there, and he did not see the appellant do anything improper with his penis. 33 Associate Professor Christopher McMahon, a sexual health physician and a director of the Australian Centre for Sexual Health, gave evidence that he had performed an ultrasound test on the appellant which demonstrated the presence of mild to moderately severe penile vascular disease, that could impair the appellant's ability to sustain a firm erection. He expected that the appellant would need a prolonged period of manual stimulation to get an erection. In general, in order to achieve anal penetration, a more rigid erection was required than that needed to achieve vaginal penetration and he expected that the appellant would have a higher level of difficulty achieving penetration of an adolescent male. However, in cross-examination he agreed that if the appellant had taken Viagra on the night, it would have been possible for him to achieve an erection sufficient to penetrate a child's anus. 34 The appellant's general practitioner Dr Ayres gave evidence, confirming that the appellant had presented at his surgery in 2000 complaining of back and neck discomfort resulting from a motor vehicle accident, the pain affecting his ability to enjoy sexual intercourse. He also complained to Dr Ayres in 2002 of the loss of ability to obtain an erection that was sufficient to have satisfactory sexual intercourse. Dr Ayres prescribed Viagra, which the appellant had used once or twice without very successful results. 35 Character evidence for the appellant was given by a Mr Chuck, who had known the appellant for 55 years since he was a child.

Issues on appeal 36 The appellant relied on the following grounds of appeal: 1. The Trial miscarried.

2. The Trial Judge erred in admitting into evidence an alleged observation by the Complainant of the Accused masturbating in a motor vehicle in the course of a trip between Sydney and Muswellbrook.

3. The Trial Judge erred in his directions to the Jury concerning Tendency Evidence.

4. The Trial Judge erred in his directions to the Jury of the requirements of proof for counts 3 and 4.

The Trial Judge misdirected the Jury in respect to the circumstances of aggravation.

The Trial Judge erred in failing to give the Jury a proper or adequate 'Crofts' direction.

The Trial Judge erred in failing to give the Jury a 'Longman' direction.

The Trial Judge erred in directing the Jury regarding the evidence.

The Verdicts were unreasonable. 37 Mr Ramage QC for the appellant conceded that he could not support grounds 6 and 7. In my opinion, that concession was properly made, having regard to amendments made to the Criminal Procedure Act 1986 which commenced on 1 January 2007: see s 294 and s 294AA. 38 No separate submissions were advanced in support of ground 1. 39 Grounds 3 to 5 and ground 8 are affected by rule 4 of the Criminal Appeal Rules, and I will consider them together. 40 I will consider in turn the following issues: (1) The question of admission of evidence (ground 2). (2) Questions concerning directions (grounds 3 to 5 and ground 8). (3) The question of whether the verdicts were unreasonable (ground 9).

Error in admitting evidence? (ground 2) 41 At the outset of the trial, counsel for the accused objected to evidence being led of what had taken place in the car on the way to Muswellbrook. The trial judge ruled that the evidence was admissible, giving the following reasons: In the course of the accused's interview with police, exhibit VD 1A, dated 18 January 2007, the accused said this, in answer to question 584. The question was: "Q.584. In relation to you touching your penis on the drive up to Muswellbrook, what exactly did [the complainant] say to you? A. He said to me, I believe, 'Oh, while you thought I was asleep, I think I saw you masturbate'.

Q.585. And what exactly did you say to him? A. I said to him, 'Um, you might have seen me with my hand down the front of my trousers'."

The incident alleged to have occurred in the car preceded the event after they arrived at Muswellbrook which is alleged to have occurred in a bedroom. They were staying with some friends of the accused, people called the Leckies, and there were various guest bedrooms apparently. The two boys slept in one room together and the accused saw fit to join them, and the events of various of the counts in the indictment are said to have occurred on that bed, essentially an act of sexual intercourse.

The Crown has given to the accused a tendency evidence notice, exhibit VD 1C, but supplementary to that, since the current Crown came into the matter, there has also been provided exhibit VD 1D, a supplementary notice.

Both of the forms of notice were drafted, it seems to me, for more abundant caution; however, it appears to me that the evidence is, in any event, directly relevant. It is directly relevant to prove the state of mind of the accused in the course of the travel arrangements immediately preceding the alleged incident at Muswellbrook.

The state of mind of the accused is clearly a relevant issue in the trial and it seems to me that the sequence of events leading up to the arrival and the sleeping arrangements at Muswellbrook are one sequence of events - to use the old formula, res gestae .

In any event, even if they were not part of the one sequence of events and admissible as to state of mind, which is my view, I have no doubt that the requirements of part 3.6 of the Evidence Act are satisfied, and it seems to me that none of the disabling considerations which might exclude the evidence are applicable here.

The probative value of the evidence is powerful. Any prejudicial effect is not unfair, and in any event, the very important probative value substantially outweighs any prejudicial effect that the evidence might have on the accused.

The accused, it would appear from the evidence before me at this stage, in fact himself raised the issue with the police, no doubt as a pre-emptive explanation. Whether it satisfies a jury in due course is a matter to be determined. But I would allow the evidence. 42 This ground involves some consideration of ss 97, 101 and 137 of the Evidence Act 1995, which are in the following terms: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 43 The following written submissions were made on behalf of the appellant: It is submitted that the trial judge erred in:-

(a) Admitting the evidence as relevant to the state of mind of the accused and part of the res gestae of the sequence of events leading up to the arrival and sleeping arrangements at Muswellbrook;

(b) Applying the test of "unfair" prejudice which is not part of the test under s 101(2) Evidence Act.

(c) Failing to determine on what counts the evidence would be admissible

(d) Failing to consider how an accused was likely to be prejudiced if evidence was admitted for the purposes of tendency reasoning on one or more counts but not on others;

To be told that the accused did the same thing on a number of other occasions but that you cannot use that evidence to reason that he did it on a particular occasion is contrary to ordinary human experience (see the discussion by Debelle J in R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73 at [63]. It is further submitted that not only must the jury be left in no doubt that they cannot follow that line of reasoning. The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted."

(e) Failed to perform the balancing exercise required under s 101(2). R v Blick (2000) 111 A Crim R 326 at [20]

Among other things the judge needed to exercise the caution referred to by Simpson J in Fletcher at 50 " But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.

The need for further caution was suggested by Rothman J where he said " It is conceded, most appropriately, by the Crown, that evidence of sexual preference is not relevant to, or, put otherwise, has no probative value in relation to, the commission of an offence of this kind. Thus, evidence that a person is heterosexual is not probative of a sexual offence against a member of the opposite sex; and homosexuality is not probative of the commission of a sexual offence against a person of the same sex ." Rothman J in Fletcher supra at 115

(f) Alternatively the trial judge failed to give consideration to the exercise of discretion pursuant to s 137 Evidence Act. 44 In oral submissions, Mr Ramage pointed out, in relation to his point (a), that the trial advocate for the Crown had sought to rely on the material principally as context evidence but failing that as tendency evidence; and had not relied at all on the grounds found by the primary judge as relevant to counts 1 and 2, that is, state of mind and res gestae. 45 Mr Ramage submitted that the events in question could not be part of the res gestae, because they were not an inseparable feature of a unified sequence of events: see O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566. It was not part of the Crown case that the whole trip was a set up for sexual gratification. He further submitted that, having regard to the lapse of time between the events in the car and the events alleged in counts 1 and 2 (in the order of twelve hours) an inference of the same continuing state of mind could not be inferred. 46 I accept Mr Ramage's submission that it was no part of the Crown case that the whole trip to Muswellbrook was a set up for the purpose of sexual gratification, and the evidence in the case could not possibly have made good any such suggestion. In those circumstances, I am inclined to the view that the evidence was not admissible as part of the res gestae. I do not think there was a connected series of events that should be considered as one transaction, of which the events in the car were a part. 47 However, in my opinion the evidence was probative as evidence of a state of mind which could reasonably be inferred as having a probability of continuing from the time of the incident in the car (probably somewhere near the middle of the day) to the time of the events alleged in counts 1 and 2. 48 In R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at [22]-[30], the Court (Spigelman CJ and James and Bell JJ) said this: [22] The principal submissions which were made by counsel for the appellant were that the evidence of Bakos and Oshana was "tendency evidence" falling within Pt 36 of the Evidence Act and that such evidence was not admissible to prove that Richard Adam had a tendency to act in a particular way or to have a particular state of mind, because the conditions under s 97(1)(b) and s 101(2), which would have to be satisfied before the evidence could be used for this purpose, were not satisfied and accordingly a direction that the evidence was not to be used for this purpose should have been given (s 95). It was also submitted that the principle of admissibility of evidence stated in O'Leary v The King had been abolished by the Evidence Act 1995.

[23] In O'Leary v The King Dixon J said at 577-578:- "Without (the evidence in question) the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide".

[24] The principles stated in O'Leary v The King continued to apply at common law (see for example Harriman v The Queen (1989) 167 CLR 590 at 628-630 per McHugh J), although courts sometimes stressed the limits of the principle and the principle was distinguished from the illegitimate so-called principle of "completeness" ( Thompson v The Queen (1968) 117 CLR 313 at 317; Driscoll v The Queen (1977) 137 CLR 517 at 533; R v Murray & Bates (unreported, Court of Criminal Appeal, 6 April 1992).

[25] We do not consider that the principle in O'Leary v The King has been abolished by the Evidence Act . section 9(1) of the Evidence Act provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment. The Act does not expressly provide that the principle is abolished. Nor do we consider that the Act so provides "by necessary intendment".

[26] A submission was put that evidence which was admissible only under the principle in O'Leary could not satisfy the test of relevance in s 55 and hence under s 56 would not be admissible. Reference was made to the decision of McLelland CJ in Eq in Telstra Corporation v Australian Media Holdings (1997) 41 NSWLR 346, in which his Honour gave consideration to whether certain provisions in Pt 310 of the Evidence Act relating to client legal privilege were inconsistent with common law principles on which one of the parties sought to rely. However, in our opinion, evidence which properly falls within the principle as stated by Dixon J in O'Leary would be evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" and hence would satisfy the test of relevance in s 55 of the Act.

[27] If evidence of the appellant staring at Dennis Oshana was an integral part of a connected series of events happening on the night of 18 April 1997, which included the assaulting of David Carty and which could not be truly understood without reference to the evidence (that is, if the evidence came within the O'Leary principle) or if the evidence of the appellant staring at Dennis Oshana was evidence of conduct by the appellant at a time sufficiently proximate to the time of the alleged assaulting of David Carty to permit an inference to be drawn that the appellant had the same continuing state of mind at the time of the alleged assaulting of David Carty as he had at the time of the staring, then such evidence would not, in our opinion, be tendency evidence within Pt 36.

[28] The relevant parts of the Reports of the Australian Law Reform Commission, which preceded the enactment of the Commonwealth and New South Wales Evidence Acts (see Report No 26 "Evidence" Vol 1 especially pars 400-402 and Vol 2 especially pars 169-171 and Report No 38 "Evidence" especially pars 175 and 176) indicate that Pt 36 of the Evidence Act dealing with "tendency and coincidence" was intended to deal with what was described at common law as "propensity evidence" or "similar fact evidence".

[29] At par 169 of Vol 2 of Report No 26 the Commission, after referring to the decision of the Privy Council in Makin v Attorney General for New South Wales (1894) AC 57, quoted a passage in the judgment of Gibbs ACJ (Stephen Jacobs and Aickin JJ concurring) in Markby v The Queen (1978) 140 CLR 108 at 116:- "The first principle, which is fundamental, is that evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition". Propensity evidence and similar fact evidence at common law could, of course, include conduct by an accused person which did not amount to a crime.

[30] The reference by the Commission to Makin v The Attorney General and the quotation from the judgment of Gibbs ACJ in Markby and the references in the Reports to evidence of "previous misconduct" or "past misconduct" or "conduct on some other occasion" indicate, in our opinion, that the Commission was addressing evidence of conduct by an accused person "in the past", being conduct on some other occasion than the occasion on which the conduct charged occurred, tending to show that the accused had a particular propensity or disposition or inclination. Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person "in the past" or evidence tending to show that he has a particular "disposition" or "propensity" or "inclination" and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required). 49 This raised the question in that case whether it could be rationally probative of the appellant's participation in an attack on the victim occurring sometime after 2.15 am outside a public house that the appellant had behaved aggressively towards a person other than the victim in the public house an indeterminate time before that. Unsurprisingly, the Court at [31] expressed considerable doubt as to whether this could be so. 50 However, in the present case the events in the car could rationally support an inference that on the day of the trip to Muswellbrook the appellant was in a state of mind such that he had an interest in and a lack of inhibition from engaging in sexual activity in the presence of the boys, and that there was a probability that this state of mind continued. Evidence of the events in the afternoon when the appellant and the complainant swam in the river, the appellant being naked, could tend to support the inference that the state of mind continued. Although there was evidence that the purpose of going into the river was to fix a pump, the circumstances were such that there was an available inference that, if the appellant did have a state of mind previously existing on that day such that he was interested in and was not inhibited from engaging in sexual activity in the presence of the boys, that state of mind would thereby have been reinforced. 51 In my opinion, that kind of reasoning would not be reasoning that the appellant was a type of person with a tendency to engage in sexual activity in the presence of boys. Rather, it was reasoning that, on this particular day, the appellant exhibited a state of mind displaying interest in and a lack of inhibition from such activity, a state of mind as to which it could be inferred that it was probable that it continued until the night-time of that day. 52 Contrary to par (c) in the written submissions, the trial judge did determine the counts on which the evidence would be admissible, although he did not spell this out in the initial judgment. It is clear from later events, and in particular from the directions to the jury, that he admitted it on state of mind and/or res gestae on counts 1 and 2, and as tendency evidence on counts 3 and 4. It does not appear that Mr Ramage has challenged the admissibility of the evidence as tendency evidence on counts 3 and 4, and in my opinion it did have significant probative value, within s 97(1)(b) of the Evidence Act, so that, subject to ss 101(2) and 137 of that Act, it was admissible on that basis on those counts. 53 The other challenges to the admission of this evidence concern the way the trial judge dealt with its possible prejudicial effect. In my opinion, what the trial judge said sufficiently indicates that he did address and determine the tests contained in s 101(2) and s 137; and I see no error in that determination. I do not think there was any significant prejudice to the appellant, and certainly not any unfair prejudice, in admitting this evidence as tendency evidence on counts 3 and 4 but not on counts 1 and 2.

Errors in directions? (grounds 3-5 and 8) 54 The submissions for the appellant were comprehensively set out in written submissions, as follows: (3) The trial judge erred in his directions concerning tendency evidence

It is submitted that the trial judge's directions concerning the tendency evidence were incorrect and misleading in the circumstances of the case in:-

(a) Suggesting that the accused had committed a crime

In the course of giving an appropriate direction referring to a general rule of exclusion at SU 6 14/3/08 the trial judge referred to "the danger that persons might too hastily jump to the conclusion that proves that a person has committed one crime could suggest that he had committed the other"

It is submitted that the accused could not have been either charged or convicted on the basis of an act of masturbation in the circumstances of the case where the complainant was or had been asleep, was in the back seat making any observation difficult and which the accused was neither aware of nor not expected to be seen. There should have been no reference to "committed one crime".

(b) failing to direct the jury that they could not use tendency reasoning in respect to the "alleged events in the car" in part of their reasoning in respect to the 1st and 2nd counts

The Courts have emphasized the need for care in identifying the basis upon which the evidence is admitted, either tendency or context

It is submitted that a specific "BRS" direction was required. Where evidence revealing criminal or reprehensible propensity is admitted, but its use is limited to non propensity or tendency purposes, for example those considered proper in that case, then it is to be used only for those purposes and not as proof of the accused's guilt otherwise

(c) In inviting the jury to use "guilty passion" reasoning.

At SU 21/22/23 14/3/08 the trial judge gave further directions or made comments to the jury in the nature of directions. At SU 22 he invited the jury impermissibly to use some type of "guilty passion" reasoning in respect of both boys. At SU 36 he referred to the Crown argument -"he had a sexual interest in the boys "

At SU 32/32 when Counsel for the accused queried the "direction" the judge denied having said "with the boys or other relatives" and the Crown apparently said that the judge's remarks were limited to the complainant ie just the one boy.

There was never any foundation beyond wild speculation, but the jury may well have used such fallacious thinking as confirmation of how the accused allegedly came to commit offences 1 and 2 in the presence of another child

It is further submitted that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant , the jury must be told that they must be satisfied of that interest beyond reasonable doubt.

HML v The Queen (2008) 235 CLR 334 per Gummow, Kirby, Hayne and Keifel JJ

It is further submitted that in so far as the trial judge chose to invite the jury to use relationship evidence then he should have given a "Gipp" direction concerning the way in which evidence of uncharged sexual conduct between an accused and a complainant could be taken into account as showing the nature of the relationship between them, but not so as to substitute satisfaction of the occurrence of such conduct for proof of the act charged;

(4) The trial judge erred in his directions to the jury of the requirements of proof for counts 3 and 4

The trial judge's directions on act of indecency appear at SU 9/10 and in written directions.

It is submitted that the directions were insufficient in addition the jury should have been directed that it was essential that they be satisfied beyond reasonable doubt that:-

(a) that the alleged act of masturbation was performed at the complainant; and

(b) that the accused at the time he performed the alleged act of masturbation was aware that the complainant could see/ and was observing him.

In R v Barrass 2005 NSWCCA 131 the NSWCCA it was accepted that the offence was established where a man masturbated in the presence of two thirteen year old boys in the changing room at a swimming pool, provided that he was aware that the boys could see him and derived sexual satisfaction from that fact and that decision was followed by the Court in R v Gillard [1999] NSWCCA 21; (1999) 105 A Crim R 479, in which it was held that the offence could be made out on each of two occasions when a couple engaged in sexual acts in the presence of a young girl, encouraging the girl to watch and, on one occasion, inviting her to join in

R v Barrass 2005 NSWCCA 131 R v Francis (1989) 88 Cr App R 127

In another case in the Northern Territory Steven Pregelj and Iris Wurramura were charged with offensive behaviour under the Northern Territory Summary Offences Act after being seen having sex by a police officer walking past their house. They were convicted. They appealed on the basis that for their behaviour to be offensive, the prosecution had to prove that they knew or intended that they could be seen from the street. Pregelj and Wurramura both gave evidence in court that they did not know they could be seen from outside. They also gave evidence that they had taken precautions such as being in the corner to the side of the window. The NT SC upholding their appeal found that for a crime to be committed there has to be a mental element, that is, the person committing the crime has a guilty mind and intends to commit it.

(5) The trial judge misdirected the jury in respect to the circumstances of aggravation

The trial judge's directions appear at SU 9 13/3/09. His Honour directed the jury that "it is sufficient if in fact he was in a relationship with the complainant where he had a practical influence over him and was entitled or expected to care for or supervise him from time to time". The definition under s 61H(2) Crimes Act is that "a person is under the authority of another person if the person is in the care or under the supervision or authority, of another person". It is submitted:-

(a) It was misleading to fail to draw distinctions between the 1st, 2nd and 3rd counts in respect to the need to prove the circumstance of aggravation of "under authority'

The trial judge failed to apply or explain what the jury would have to find to determine that at the time of the 3rd count the complainant was under the authority:-

(b) It was misleading to direct the jury when directing as to the elements of the third charge to say at SU 7 re the first count "you may think that much of that is not in contention and… similarly with respect to the second, third and fourth counts, although you do get variations as to date" and SU 7/8 that "Again you may think the critical point in issue here is (c)", - the act of indecency,

(8) The trial judge erred in directing the jury regarding the evidence

The trial judge directed the jury at SU 20/2114/3/08 that the difference between what the police officer put to the accused, based on what the complainant had said to him, and what the complainant alleged in court was "simply a mistake on the part of the police officer - she misinterpreted it"

There was no firm basis on which the judge could give this direction or make such a comment. Its effect was to impermissibly reinforce the reliability and consistency of the complainant's account. 55 In relation to all these submissions, the Crown pointed out that on the seventh day of the trial, the trial judge provided counsel with draft written directions. Over the course of the next two days there was discussion between the Bench and Bar about the draft directions. Ultimately a document in similar terms to that originally provided was provided to the jury; and those written directions were repeated and developed by the trial judge in his summing up. These grounds raise complaints about the directions given to the jury. They were not the subject of any complaint at the trial, and no re-direction was sought. Accordingly rule 4 of the Criminal Appeal Rules applies to these grounds. 56 Turning to the submission 3(a), in my opinion what the trial judge said could not reasonably have been understood as a suggestion by him that what occurred in the car could amount to a crime. 57 As regards the submission 3(b), the written and oral directions clearly set out how the jury were permitted to use evidence of the events in the car: that is, as to state of mind and res gestae in relation to counts 1 and 2, and as tendency evidence in relation to counts 3 and 4. 58 As regards the submission 3(c), the trial judge (summing up on 14 March 2008 at page 22) referred to the possibility that the appellant was "giving way to the thoughts in his mind of sexual activity ahead with the boys away from other relatives and under his control", and asked whether the conduct was that of a "reckless man driven by sexual intentions…"; and (summing up at page 36) he said "clearly, the Crown says, he had a sexual interest in the boys". 59 In the context of the whole summing up and the written directions, in my opinion these are references to what the jury might infer about the appellant's state of mind on that particular occasion, and not to some general "guilty passion". 60 As to the submission as to the need to tell the jury that they must be satisfied beyond reasonable doubt that the appellant's sexual interest was "in the complainant", in my opinion that did not apply in this case. Insofar as evidence of the events in the car went to the appellant's state of mind, it was sufficient that the state of mind was of interest in and lack of inhibition from sexual activity in the presence of the boys or either of them. Insofar as it went to propensity, it was sufficient that it went to propensity to masturbate in the presence of the boys or either of them. 61 As to ground 4, the trial judge directed that to find the appellant guilty on counts 3 and 4, the jury would need to be satisfied that the appellant did commit the act of indecency towards the complainant, and that masturbation in the presence of a child may amount to an act of indecency. In circumstances where, if the complainant's evidence were accepted, the acts in question occurred when the appellant was in the same room, the complainant was awake, and the appellant was within the complainant's line of sight, there is in my opinion no substantial inadequacy in that direction. 62 The question of whether it is a necessary ingredient in the offence that the accused person be aware that the child can see him or her has not been finally determined by the cases relied on by the appellant. In circumstances where no such direction was sought in this case, in my opinion it is not appropriate to address that question in this case. 63 As to ground 5, the appellant accepts that it can only apply to count 3. The trial judge directed the jury (summing up on 13 March 2008 at page 9) that "under the authority of the appellant": does not mean that the accused must have been the biological father or legal guardian of the child. It is sufficient if in fact he was in a relationship with the complainant where he had practical influence over him and was entitled or expected to care for or supervise him from time to time. 64 In my opinion, in the circumstances of this case, there was no error in that direction. In circumstances where the complainant was at the appellant's home, the complainant's cousin and aunt were out, and the appellant was the only adult in the house, in my opinion there was no necessity for the trial judge to draw distinctions between the first, second and third count in relation to the question of authority. I do not think it was misleading for the trial judge to say to the jury, in relation to the third count that "you may think that much of that is not in contention". 65 As regards ground 8, the evidence was that the only time that Detective Donaghy Lewis had spoken to the complainant was during the recorded interview on 5 January 2007; and it was common ground that during that interview the complainant did not allege that the appellant had pulled down his shorts. In those circumstances, there was no error in the trial judge's comment. 66 In addition to those matters, in my opinion rule 4 of the Criminal Appeal Rules applies, and leave to appeal is required. In circumstances where none of these points was taken, in my opinion leave should in any event be refused.

Unreasonable verdicts? (ground 4) 67 The submissions for the appellant on this ground are comprehensively set out in the written submissions as follows:

A reading of the oral evidence in the trial shows a high degree of unreliability and willingness to contradict on the part of the complainant what he had apparently said to the Crown in conference only a week before.

His lack of complaint should further have given the jury cause for concern

(b) The verdict on the 1st count of attempt was brought in by the jury despite positive and graphic detailed evidence by the complainant that he had been penetrated in an act which went on for a long time and which caused him extreme pain. The jury obviously rejected that penetration had taken place. In so doing the jury must have either compromised or rejected the complainant as a reliable witness. That should have caused them to have doubts about the balance of his evidence including that relating to the 2nd, 3rd and 4th counts.

(c) The act of masturbation alleged by the complainant to have occurred that constituted the 3rd count was completely unsupported. There was no complaint by the complainant at the time or within months which the jury could use to support the complainant's evidence. On the other hand the jury were very likely to have attributed undue weight to the incident in the car.

(d) The act of masturbation alleged by the complainant to have occurred that constituted the 4th count was contradicted by the witnesses. This involved the allegation that the accused had come into a room upstairs in [MB's] house where there were the complainant, [GL], [MB] and possibly [another] child and sat on a couch on the right hand side of the room and was seen by only the complainant with his fly open, penis sticking out and masturbating. He was unsupported. The boy [GL] said that he did not see the accused do anything except lay down on the couch/bed and go to sleep T112. This was not a matter of confusion or lack of recall on the part of the witness but one of firm denial that such an incident took place; nor did [MB] see anything. Again the jury were very likely to have attributed undue weight to the incident in the car.

(e) The was a reasonable alternative explanation involving a family fight and its consequences which could not be discounted. 68 The principles to be applied are those set out in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493-5: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for 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.

See also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 and Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. 69 As regards the appellant's submission 9(a), Mr Ramage referred to cross-examination of the complainant in which the complainant gave answers that in some respects were not in accord with notes taken by the Crown's instructing solicitor the previous week. 70 One series of questions and answers in those notes was as follows: Q. At any time had either you or [GL] got into [ML] and [the appellant's] bed? A. Once.

Q. What age were you when this happened? A. Um I was 11 turning 12, I'd say about 11.

Q. How did you and [GL] come to be sleeping in [ML] and [the appellant's] bed? A. We were afraid of the dark and had been playing scary video games and we got scared.

The alleged conflict with those notes was that in oral evidence the complainant said that on that occasion GL got into ML and the appellant's bed, but the complainant slept on the floor. 71 There was no evidence before the jury as to the literal exactness of the notes concerning what was said; and, particularly having regard to the alternative put in the first question, in my opinion this cannot be considered a significant discrepancy. 72 The next sequence of questions and answers in the notes, relied on by the appellant, concerned occasions when the complainant had been taken home at night from the appellant's house: Q. At any time were you driven back home during the night? A. Yes [ML] or [the appellant] would sometimes drive me and sometimes Mum and Dad would pick me up sometimes. It was because I missed Mum and Dad. They went to work early in the morning and I didn't get to see them much so I missed them.

Q. And was it also because you didn't sleep well sometimes? A. Yes.

The discrepancy relied on by the appellant was that in oral evidence the complainant said that he was never taken home by ML or the appellant, but his Dad picked him up all the time. Other witnesses also supported the position that on occasions it was ML and/or the appellant that drove the complainant home. 73 This discrepancy is one that may have caused a jury some doubt about the complete reliability and accuracy of the complainant's evidence; but it certainly is not one that must have caused them to do so. 74 The third series of questions and answers in the notes relied on by the appellant concerned the events in the car going to Muswellbrook: Q. What is did you see, can you describe in some detail what you saw? Did he or you say anything at the time? A. Well, I woke up and looked at the passenger seat and [GL] was asleep. Then I looked at the driver's seat and he was masturbating.

Q. Can you describe? A. His hand was in his groin area and on his penis and he was moving it up and down.

Q. Was it one hand or both hands? A. Um, one hand.

Q. Did you notice which hand? A. Um, it was his right hand. His other hand was on the steering wheel.

The discrepancy relied on was that in his oral evidence, the complainant said that the appellant was using his left hand to masturbate. 75 In my opinion, in circumstances where there was no evidence confirming the literal accuracy of the notes taken, this could not be regarded as a significant discrepancy. 76 As regards the submission 9(b), the jury were told that they had to be satisfied beyond reasonable doubt of every element of each offence; and they were also told that if they did not believe the complainant's evidence or found him to be unreliable in relation to any count, they were to acquit the appellant on the other counts. 77 It is consistent with the jury's verdict that, having regard to the evidence of Dr McMahon and the appellant's wife, and also to the evidence of GL that the initial complaint was that the appellant tried to rape the complainant, the jury were not satisfied beyond reasonable doubt of penetration. That view is consistent with the jury finding the complainant to be a generally reliable witness, particularly having regard to the directions that they were given. 78 As regards submission 9(c), in circumstances where the appellant and the complainant were alleged to be alone in the house at the time, it was open to the jury to accept the complainant's evidence of the incident beyond reasonable doubt. The tendency evidence arising from the events in the car gave some legitimate support to this finding. 79 As regards submission 9(d), the complainant's evidence was not contradicted by GL, although the jury may have regarded GL's account as somewhat tending against it. The complainant's evidence was contradicted by MB, particularly in that MB said he did not leave the room while the appellant was in it. MB's evidence suggested his recollection was poor, and there was evidence that during the trial he discussed his evidence with his parents and they had reminded him of various matters. The jury would have been justified in placing little weight on his evidence. 80 As regards submission 9(e), the occurrence and significance of the fight was put to the complainant and also to GL. Their evidence did not suggest they had any substantial reason to think that the fight would prevent the complainant and GL continuing their friendship much as before. It was open to the jury to consider that the fight would not have provided any plausible motive for the complainant and GL to make an unjustified complaint. 81 In assessing whether, on the whole of the evidence, the jury should have entertained a reasonable doubt, it is also relevant that there were significant respects in which the complainant's evidence was supported, particularly in relation to counts 1 and 2. The complainant's evidence that he was crying when he woke up was supported by GL and the appellant. GL supported the complainant's evidence that he made an immediate complaint to GL, albeit that, in GL's oral evidence, this was put in terms of an attempt to rape rather than an actual rape. GL's evidence that he saw the appellant holding himself above the complaint also gave some support to the complainant's evidence. The complainant's evidence that, after the complainant had woken up crying, he and GL swapped positions in bed, thereby placing GL between the complainant and the appellant, was supported by GL and the appellant. Finally, the incident in the car gave some support to the complainant's evidence. 82 Having regard to all these considerations, this is not in my opinion a case where it can be said that the jury ought to have entertained a reasonable doubt.

Conclusion 83 For those reasons, in my opinion the following orders should be made: (1) Leave to appeal granted. (2) Appeal dismissed. 84 JOHNSON J: I agree with Hodgson JA. 85 ROTHMAN J: I agree with Hodgson JA. **********

09/11/2010 - spelling of solicitor's name incorrect. - Paragraph(s) cover sheet 15/11/2010 - LJW added to coversheet - Paragraph(s) NA

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