Madden v R

Background

1. As noted above, RA (who was born in late December 1972 - a fact relevant when considering the conviction on counts 1 to 3 - see Ground 2) and MA (who was born in March 1976) are brothers. In 1982, they moved with their parents and three brothers to a house in Sunbury Street, Sutherland (T 179.19). When RA was eight, the boys' mother left the family home with one of their siblings, leaving the four remaining boys to be raised by their father (T 33-34; T 180.1-12).
2. At some point after the parents of RA and MA separated (and prior to 1988 when their father remarried), the applicant and his family moved into a house in Sutherland, a couple of doors from that of RA and MA. (The timing of this is of some significance for counts 1 to 3 - see Ground 2.) The evidence of RA's and MA's father was that, as at the date of his second marriage (in 1988), he guessed that the applicant's family had been in the street for "a couple of years" (T 180.37). That would place the applicant's arrival in Sutherland as being around 1986.
3. The applicant's son, who gave evidence, estimated that the family moved into the Sunbury Street property in 1985 or 1986, when he was 10, 11 or 12 (T 168.38-41).
4. Roads and Maritime Services (RMS) records, however, showed that the applicant's registered address was the Sutherland address from 10 April 1987 until 24 March 1991 (Ex I).
5. RA and MA became friends with the applicant's children, in particular with his son, Paul (T 33-34).
6. The third complainant (DN) was born in November 1978 in the Albury area. The applicant was a family friend from Albury whom, prior to 1991, DN saw once or twice a year (T 92.46-48). When the applicant and his family moved away from Albury, DN's family kept in touch with them (T 183.34-39).
7. After DN's father died in January 1991, DN moved with his mother and brother to Dapto (T 183.45-49). At that time, the applicant and his family were living in Kurrajong Street in Sutherland (T 183.41-43). RMS records show that the applicant's registered address was in Kurrajong Street, Sutherland from 25 March 1991 until 5 November 1992 (Ex I).
8. DN's mother gave evidence that her family would see a lot of the applicant's family and that the applicant would take DN out fishing and camping. DN's mother could not remember a specific time when DN went to stay with the applicant's family by himself but said that it could have well happened as she felt he was "in safe hands" there (T 184.22-27).
9. The applicant subsequently moved to a house in Bangor.

Opening Address

1. During opening address, the Crown Prosecutor outlined the Crown's tendency case as follows (T 4.19-43): Now, a key part of the Crown case in this trial will be its reliance on what's called tendency evidence. The Crown is going to seek to establish to you in this trial that Mr Madden, the accused, had a tendency to do the following things. It'll be a matter for you whether you're satisfied that this tendency has been proved in the trial. First, that the accused was sexually attracted to males between the ages of 12 and 18, who I'll just refer to as a young male for this opening outline. That he would befriend a young male who had a connection to his family. That he'd then invite this young male on to his boat to go fishing. That he would then provide the young male on the fishing boat with alcohol and or cannabis. He would then act on this sexual attraction he had to young males by engaging in a sexual act with the young male on the boat after providing them with alcohol and cannabis. Subsequently, so after this initial incident on the fishing boat, he would then continue to put himself in situations where he was alone with that young male that he'd taken out fishing and he'd then continue to act on this sexual attraction to that young male by engaging in further sexual acts or inciting this young male to commit sexual acts on another young male in his presence. That's what the Crown says as sort of the whole for all of these 59 charges. That's a tendency, the way that Mr Madden acted, and that's what we're seeking to prove in this trial.

Evidence

1. As Ground 2 raises an unreasonable or unsupportable verdict ground in respect of a large number (though not all) of the counts, it is necessary to consider in some detail the evidence adduced in relation to each of the counts which are the subject of that ground of appeal.

Offences alleged by RA (counts 1 to 15)

1. RA was the first witness in the Crown case.
2. RA's evidence was that when he was "probably thirteen, about thirteen, fourteen", the applicant's son told RA that his father grew marijuana. As RA turned 13 in December 1985 and 15 in December 1987, this places the event which led to the first incident (R1), on RA's account as occurring some time between December 1985 and 1987. RA said he could not remember what year of school he was in when this occurred, but said it was "probably year 7 or year 8" (T 35.10). A register of admissions for Jannali Boys High School obtained by police in the course of their investigation of RA's allegations, recorded RA as having transferred from Engadine High School to Jannali Boys High School in year 9 in February 1987 (T 195.07). The applicant notes that there was no evidence that RA repeated any year of his schooling. Thus, if RA was in year 7 or year 8 at the relevant time, this would place the event in 1985 or 1986 (not 1987).
3. RA said that, two or three days later, he went into the applicant's backyard and stole some marijuana plants. RA said that a few days after he stole the plants, he was walking on Sunbury Street and was approached by the applicant in a blue and white Range Rover. A vehicle matching this make and general description was first registered to the applicant on 27 November 1985 (T 202.14). RA said that the applicant approached him and told him that "I know you stole me plants, just watch out". RA said the applicant "put a lot of fear into me … because I was only thirteen and I was very small".
4. RA said that about a week later, the applicant "just pulled up in his car one day and he said, 'If you smoke dope you can come in my boat with me sometimes and we'll have a smoke' or 'If you smoke dope, I've got some work on my boat. You can come and do some work'" (T 35). RA said that he said "Okay, okay. I'll just pack the gear", and the applicant said "Okay. All right"; and RA said that he was happy but he was "very nervous and in fear" (T 36). Asked what he did as a result of that conversation, RA said: A. I was just messing about I'm not sure how long after that occasion he told me when of how it was. But I went on his boat. Yes. Yeah.
5. RA's evidence was that when he first started to go out on the boat he was "thirteen, fourteen" (which again places the event as being some time between December 1985 and December 1987).

Counts 1, 2 and 3 (Incident R1)

1. The first of the unreasonable verdict appeals relates to counts 1 to 3, which relate to the first time that RA went fishing from the shore with the applicant (T 40). RA said that this was the first time that anything sexual happened between them (T 42.34-36). RA said that he was "about 14" at the time (T 42.41-43). The particulars on the indictment place this incident as occurring some time between 1 February 1987 and 13 March 1988.

Count 1: homosexual intercourse with male over 10 and under 18 (s 78K)

1. RA said that the first time he went fishing with the applicant was "down [at] Bonnet Bay … fishing off the land … down in the carpark of Bonnet Bay" (T 40.15-16). RA said that he and the applicant went to Bonnet Bay in the applicant's car (T 40.27); that the applicant gave him marijuana and two or three beers, which he consumed (T 40.43-41.2); that they had fishing rods in the water (T 40.40); and that at some point the applicant took his pants off and the applicant "leaned forward and started sucking me off", meaning "with his mouth", "a head job", "oral" (T 41.6-37). RA said that this lasted about five minutes and that he (RA) ejaculated (T 41.45). Asked whether he could remember how old he was "at that stage that this was happening", RA thought he was "about 14" (T 42.41-43).

Count 2: homosexual intercourse with male over 10 and under 18 (s 78K)

1. RA said that after he ejaculated the applicant then said something like "okay you want to do me now" or "your turn" and put his hand on his (RA's) head. RA then "leant forward and starting to give him head" (T 41.48-42.8).

Count 3: commit act of gross indecency with male under 18 (s 78Q(1))

1. RA said that after two or three minutes sucking the applicant's penis, RA stopped and then masturbated the applicant with his hand until the applicant ejaculated (T 42.25-32).

Context evidence

1. RA gave evidence that, after this first incident (R1) occurred, there were more incidents of a sexual nature, saying that it was "the same process on and on. With his boat, on water, at his place, in the car" (T 43.8-9).
2. RA said that the sexual contact began before he left school. RA left school in year 9 (T 43.15), which was in 1987 (T 195.15-17). As already noted, RA turned 15 in December 1987. After leaving school, RA started work at a panel shop in Caringbah. When he lost that job, the applicant got him a job at "Cane's Smash Repairs" in Alexandria (T 43.25-27). By reference to Group Certificates, RA said that he was working at the smash repairers from July to October 1988 (T 43.39-40). RA said that, while he was working there, he continued to smoke marijuana with the applicant in his garage and go out on the boat with him and have sex, saying that it was "the exact same process. I go up there in his garage, I smoke dope… We might go on the boat. Smoke dope, have sex again" (T 43.42-47).

Counts 4, 5, 6, 7, 8, 9 and 10 (Incident R2)

1. RA said that there were many incidents on the applicant's boat (T 43-44). Counts 4 to 10 relate to a particular incident on the boat during which RA said the applicant inserted a candle into RA's anus (T 44.25-29). RA's account of this incident was that he was with the applicant on a boat on the water near Gymea Bay; the applicant supplied him with alcohol and marijuana; the applicant fellated him, and then, after a couple of minutes, inserted a candle into his anus for a minute or two and fellated him again; following which RA fellated the applicant and masturbated him until he ejaculated (see T 43-47).
2. It should be noted that there is no unreasonable verdict challenge to the convictions on counts 4, 5, 6, 7 or 9.

Count 4: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 4 relates to RA's evidence that he and the applicant were in the cabin of the boat, consuming beers and cannabis (T 44.44-45.5) and the applicant started to give RA "oral" (T 45.26-30).

Count 5: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 5 relates to RA's evidence that the count 4 incident only went for a couple of minutes when the applicant took a "long, round, very thin" candle, put lubricant on it and inserted it into RA's anus (T 45.26-46.20).

Count 6: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 6 is that, while he had the candle in RA's anus, the applicant performed fellatio on RA (T 46.22-27).

Count 7: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 7 is that RA then performed fellatio on the applicant (T 46.32-33).

Count 9: commit act of gross indecency with male under 18 (s 78Q(1))

1. Count 9 relates to RA's evidence that the applicant "always" ejaculated after RA masturbated him (T 46.44-47.2).

Counts 8; 10

1. On RA's first account of the R2 incident, he gave no evidence as to the acts that comprised counts 8 or 10. Count 8 alleged an attempt by the applicant, during the R2 incident, at anal penetration of RA. The applicant notes that the Crown Prosecutor had opened to the jury on the basis that it was during R2, on a boat at Gymea Bay, that the applicant had attempted to penetrate RA's anus with his penis. Count 10 related to a third act by the applicant of fellatio (following the alleged attempted anal intercourse) to the point that RA ejaculated. The applicant points out that this is the way in which count 10 was particularised by the Crown Prosecutor during his opening address (T 9.4-7). It is noted that RA said that, by the time of the R2 incident, he "had been with [the applicant] about 20, 30, 40 times" (T 46.41).
2. During questions in chief about the R2 incident, the Crown Prosecutor asked RA whether sexual acts with the applicant ever progressed past "sucking off". RA's evidence in response to this was (at T 44.15-19): A. I think once he tried anal and it - it wouldn't - it just wasn't there. Q. So I might ask you about that incident where he tried anal. Do you recall where you were at the time? A. I think I was in his room in his house. [Emphasis as per applicant's submissions]
3. The Crown explains that where the complainants did not come up to proof in relation to a count on the indictment (as was here the case with RA in relation to counts 8 and 10), the Crown Prosecutor sought leave under s 38 of the Evidence Act 1995 (NSW) (Evidence Act) to cross-examine the complainant in question, on the basis of a prior inconsistent statement (in each case that being a prior police statement that the complainant had made; albeit not a contemporaneous police statement). That was what here occurred in relation to counts 8 and 10. The Crown Prosecutor sought leave pursuant to s 38 to cross-examine RA on the basis that RA had made a prior inconsistent statement about those matters in his statement to police made in 2007 (see at T 53.5-54.48).
4. It is noted by the Crown that this course was not resisted by the defence, although defence counsel indicated a preference for RA's memory to be refreshed by him being shown his statement (T 54.11-13). The Crown Prosecutor had disavowed reliance on s 32 of the Evidence Act because the relevant statement was not contemporaneous (T 54.26). The trial judge indicated that this was how the cross-examination should be approached (T 54.40-48).

Count 8: attempt homosexual intercourse with male over 10 and under 18 (s 78L(10))

1. After being shown his police statement, RA gave the following evidence (T 56.1-25): Q. Now, what you've read has brought back memories. Are you able to tell the jury - you've told us about the candle incident and the oral intercourse on that day - can you tell us about anything else that occurred on that day? A. Well, it was on this occasion where he tried - he come - I was on the side and he lift my leg up and I got - I said, "What are you doing?" and he goes, "That's all right if I move on it," and he tried to insert the anus and I was all tense as what happened and then he put - he put my leg on his shoulder or something and tried again. I said, "No way, man, you can't," and then I was just lying there fearing - I think I gave him a head job and then I - and as usual I just pulled him off to finish it and he blew but it did happen, yeah. Q. When you said you were saying, "No, no, no," what was Mr Madden doing at that stage? A. He was trying to put his penis in my anus, yeah. Q. At any stage did his penis touch the outside of your anus? A. Yes, yes. Q. You said you tensed? A. Yes. Q. What do you mean by that? What were you doing? A. Like doing - doing - don't happen. I was still in pain and like, yeah, having had him to force that, yeah.

Count 10: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Following on from the above evidence, there was the following (at T 56.27-41): Q. Does it assist you if [as I read it this is a reference to whether RA's memory was assisted by the police statement that he had just read] after you pulled him off until he ejaculated did anything else occur after that on this occasion? A. I've - I've crossed it out of my head and finished it and he's been up the yard as always. It happened like that usually, yeah. Q. When you say that, on this occasion did you then ejaculate yourself after that? A. He - he did orally with me, yeah. Q. When you say he did orally with you, who was performing the oral intercourse? A. Well, he give me a - a oral head job, yeah. Q. Was that after you had masturbated him? A. Yes. [Emphasis as per the applicant's submissions - see Ground 2]

Counts 11 and 12 (Incident R3)

1. Counts 11 and 12 related to a sexual encounter in a room in the applicant's Sutherland house (the R3 incident). RA was directed to his earlier reference (see as to R2, [46] above) to "an incident that you recall occurring at [the applicant's home]" and his evidence at T 47.26-49.6 was relied upon for these counts.
2. There is no unreasonable verdict challenge to the conviction on count 11.

Count 11: homosexual intercourse with male over 10 and under 18

1. At T 48.1-10, RA gave the following evidence: A. We both took our pants off, something, he give me oral, I gave him a little bit more and to finish it off I was always pulling. Q. So he gave you oral intercourse. A. Yes. Q. Then what occurred? A. I done - I gave him a bit more oral back and I pulled him off.
2. The act of RA giving the applicant "oral" (T 48.2) was not the subject of a charge. Count 11 related to the applicant performing fellatio on RA.
3. RA then described an attempt at penile/anal intercourse (T 48.22-25) that was also not the subject of a charge (count 12 being a charge that RA had inserted his penis into the applicant's anus, not that the applicant had tried anally to penetrate RA in this incident) (see from T 48.12): Q. And you told us before that there was an occasion in the house where there was an attempt at anal. Is that right? A. Yes. Q. Now, who made the attempt? A. Peter Madden attempted me. Q. Did you ever engage in anal intercourse with Mr Madden? A. I don't think so, no. Q. What do you recall happening in relation to that attempt on that day? A. He put some lube on his penis and tried to - he tried to turn me over so I was on the side. And he tried to push it in. I was just - no way. No, no, no just - yeah, it would have hurt too much. I just pushed him away. Q. In all these occasions you can recall there was no incident where Mr Madden ever successfully had anal intercourse with you? A. No, no, no. Yes. Q. And in relation to the reverse position, you having anal intercourse with Mr Madden, do you have any recollection of that? A. No, no. Q. Was that the only time anything ever happened inside this bedroom that you can recall? A. No, there's a fair few more times, yeah. The lounge room, the bedroom. Q. And was it generally when people weren't home? A. Yes. Q. Now in relation to this incident in the house you've just told us about. Do you remember how old you were? Was it after you left school? A. Both. One when I was at school and one after I left school. Q. Just in relation to the one you've told us about, the time in the bedroom where you were taken upstairs-- A. Yes. Q. --and he attempted anal intercourse. Do you remember when that was as far as whether you'd left school or not? A. I think - I think I was out of school then. I think, yes, I would have been. Q. Do you remember where you were working? A. I think I was working either at Carringbah [sic], my first job, or at Cunningham Smash, Alexandria. [Emphasis as per the applicant's submissions]

Count 12: homosexual intercourse with male over 10 and under 18 (s 78K)

1. The evidence in relation to count 12 was elicited in cross-examination following the grant of leave under s 38 of the Evidence Act. The Crown Prosecutor directed RA's attention to what he had said in his police statement about the "incident at the house where you're taken upstairs" (from T 57.05): Q. Now, having read that, does that assist your memory of whether anything else of a sexual nature happened on that day in the house? A. Yes, well, inserted his anus when he put my penis in his anus and then it went for a couple of minutes. Q. Now, can you just put the statement to one side. Having read it, what can you tell us about you having put your penis in his anus? A. He put some lube on his penis - on my - on my penis and he got his hand like putting in his arse and he's on his hands and knees and put it in like that. Q. You've just reached with your right hand behind your back. A. He did - he did - he did, yeah, on his knees he reached behind and - and put my penis in his arse. Q. Mr Madden was using his hand on your penis? A. Yes, and yeah. Q. And did you then engage in anal intercourse? A. Yes, he put - he put my penis in his arse - arse. Q. And what did you do? A. I honestly - I just pulled out. I just, yeah. Q. Do you recall whether you ejaculated during that occasion? A. I don't think so. I'm not sure. I think so, yeah. Q. Now, in relation to that, you earlier told us you didn't recall ever having anal intercourse- A. No. Q. -with Mr Madden. A. No. Q. Having read the statement, is that a memory you now have in Court? A. It is, yeah, yeah, yeah, yeah. Q. Do you recall whether that was the only time that occurred? A. Yes, but I'm pretty sure I haven't had - didn't have oral - yeah, that rings a bell.
2. This evidence then formed the basis for count 12. As noted, as to the timing of the R3 incident, RA said that he had left school by then and was either working at his first job or at the smash repairers in Alexandria (T 49.5-6).

Counts 13, 14 and 15 (Incident R4)

1. RA said that another place where there was sexual contact with the applicant was in bushland in Menai. Counts 13 to 15 related to when he said he and the applicant drove in the applicant's Range Rover to a "bush spot" where they smoked marijuana and engaged in the "usual" conduct of reciprocal fellatio and RA masturbating the applicant (T 49.8-50.11). RA said that there were plenty of occasions like this. On the occasion that was the R4 incident, RA said that they were parked in a "bush spot" and were getting ready to smoke dope when they saw a police car up ahead. RA said that they waited and the police car drove off.
2. There is no unreasonable verdict challenge to the conviction on counts 13 to 15.

Count 13: homosexual intercourse with male over 10 and under 18 (s 78K)

1. RA's evidence was that they smoked cannabis "and then him gave oral to me and I gave oral to him and I pulled him off. The usual". Count 13 was the performance by the applicant of oral sex on RA until he ejaculated (T 49.39-50.1).

Count 14: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 14 was the performance by RA of fellatio on the applicant (T 50.3-4).

Count 15: commit act of gross indecency with male under 18 (s78Q(1))

1. Count 15 was RA then masturbating the applicant until he ejaculated (T 50.6-7).

Additional context evidence from RA

1. RA said that from the time he left school up until he moved to Kempsey in 1988 or 1989, the sexual contact continued "almost weekly" (T 50.21). He said he then "moved back and it started up again" (T 50.31). In late 1989 or early 1990, RA broke into the applicant's home and stole property. RA said that he was "angry" with the applicant and wanted "revenge". By that stage, he was a heavy drug user.

Complaint by RA

1. RA told no one about the abuse until after he was in a serious car accident in October 1991. RA suffered a brain injury in the accident. RA said he saw the applicant one further time in 1992 when he was a patient at Lidcombe Hospital being treated in relation to the effects of the car accident. RA said the pair "had one beer [and] smoked some dope" (T 51.34).
2. RA said that, following a lengthy period of rehabilitation, he "felt a bit more freer to tell the truth" and he told his father (T 51.19-22). RA said that he "would have told" his brother MA at some stage too but had no specific memory of having done so (T 51.44-45). RA said that a year or two after that, MA told him about what had happened to him (MA) (T 52.5-6).
3. In 2007, RA went to the police and made a statement but he said that they took no action (T 51.40; T 194.1-17).

Cross-examination

1. RA was cross-examined (briefly) at T 60.50-65.16.

Applicant's case

1. The applicant's case in respect of counts 1 to 15 (as put to RA) was that the applicant did not smoke marijuana with RA in the garage of his home and that the incidents RA described did not happen.

Offences alleged by MA (counts 16 to 24)

1. MA, RA's younger brother, was the second witness in the Crown case. MA said that when he was "maybe 1 or 2", his mother left and (like RA) he stayed with his father. MA said that when he was "probably … in about year 4" his father remarried (as noted above, his father remarried in 1988 and thought that the applicant and his family had by then been living in Sunbury Street for a couple of years) (T 180.27-37).
2. MA said he thought that "it was a bit after my stepmother come but a shortly - not far after" that he became aware that the applicant was living nearby. MA remembered his brother RA going to the applicant's home when he (MA) was in primary school. MA said RA "would have been in high school" at the time; that RA was "hanging out with Paul, they'd go out in the fishing boat"; and that RA "smoked pot" with the applicant in his downstairs garage.
3. MA said that "over time" he was invited to outings with the applicant as well, "[w]hether they be family outings, wife, his daughter and several of them, fishing" (at first, with the applicant's family - T 69.26-32). MA also got involved in cleaning the boat and "doing a little bit of work". MA said that he started helping and going out on the boat at the "end of year 6 and start of year 7 was probably when it was most times" (T 69.36). MA said that, normally, when he went out on the boat, the applicant's family was also there. MA said that he started smoking cannabis as well; at first that he and the applicant's son would smoke cannabis behind the applicant's back but that "eventually it became to the point where we could smoke with him" (T 70.13-17). MA said that this started when he was "in year 7 [which would have been 1989 when he was 13] … Not so much in year 6". There was evidence that MA completed his year 10 school certificate in 1992 (T 194.23-49).
4. MA's evidence is that he would do work on the applicant's boat which was moored at Yowie Bay; and that it was "a normal thing" for cannabis to feature on these outings. MA said that there would also be beer, which the applicant would purchase from a bottle shop at the boat ramp (T 70.39-45). MA's impression of the applicant was that he was "a cool dad" (T 71.10).

Count 16 (Incident M1)

1. There is no unreasonable verdict challenge to the conviction on count 16.

Count 16: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA gave evidence (at T 71.14-31) that the relationship with the applicant changed in the holiday period between year 6 and High School (1988/1989 - see T 194.23-49); the change in the relationship being the incident referred to as M1. Asked as to the timing of the incident, MA said (from T 71.23): Q. First I'll ask you, do you remember how old you were or what year at school you were in? A. It was - it would have been before I went to high school somewhere in the year - like, the break between year 6 and high school, somewhere in that holiday period, I couldn't say before or after Christmas, the actual - that date is sort of a little long ago. Q. But you think it was prior to actually starting high school year. A. Yes. Yes, it was in that, yeah, that holiday period.
2. MA's evidence (T 71.17-21) was that: A. I was on his boat and we had had - I think we were doing working that day but we were fishing, it was in the night, had some beers, had some dope, and then I woke up on the bunks downstairs of the bed and he was sucking my penis and--
3. MA said that he was shocked; that he did not know what to make of it; and that he froze (T 72.23-34).
4. In the course of the trial, the Crown was granted leave to amend the indictment in relation to count 16 so that the date range alleged in count 16 extended to between 1 December 1988 and 6 March 1990 (see T 210-211; 213-214; 249).

Counts 17 and 18 (Incident M2)

1. MA was asked by the Crown Prosecutor (from T 73.25): Q. Was there any other occasions where something of a sexual nature happened? A. Yeah, there was. Yeah. Q. At any point was there another incident involving being on the boat with Mr Madden? A. Yeah, there was X amount of weeks later. Yeah. The same thing, the sucking of the penis and. Q. I'll ask you about that. This next time that it occurred on the boat, do you remember period of time, had you started school by then or was it still the holidays? A. No, I - I - school by then, I think, yeah. Yeah. Yeah, I would have been at school by then. Yeah.
2. MA's account of this second event was the basis of the Crown case in respect of the incident M2, counts 17 and 18. Again, there is no unreasonable verdict challenge to the convictions on counts 17-18.

Count 17: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA's evidence was that, some weeks later, after school had started, the same thing (as in count 16) happened again; there was alcohol and cannabis ("the standard") (T 73.46) and MA woke up to find the applicant giving him oral sex, which continued until he ejaculated (T 74.1-13). His evidence was (from T 73.40): Q. How was it that you came to be on the boat on this occasion? A. It would have been a similar thing that - that was offered, night fish, "Yeah, yeah. No worries," guessing Paul and someone would be there, but I guessed wrong on that one. I - I didn't - yeah, I didn't know, I just. Q. Was there alcohol or cannabis on this occasion? A. Yeah. The - the standard. Q. You've told us about this first incident where you woke up to something occurring. What happened on this second time? A. I was - yeah, I've woke up and I knew something was not right. Q. What happened? A. Yeah, it was a similar thing. I - yeah. I-- Q. In relation to what Mr Madden did to you, can you tell us what was occurring? A. The oral sexual again. Q. That was him giving oral sex to you on this occasion. A. Yeah. Q. Do you remember on this occasion whether you ejaculated? A. I think I did, yeah. Yeah, I think. Yeah. Q. After he had given oral sex to you, what then happened? A. Back to him, me. Q. Did he say anything? A. No, I'd have - no, I can't quite remember, sorry, I'm just having a little bit of a blank. Sorry.
2. Count 17 was the performance by the applicant of oral sex on MA on this occasion.

Count 18: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 18 was the performance by MA of fellatio on the applicant (T 74; T 87).
2. MA also thought that there was some anal sex (this was not the subject of a charge) (from T 74.22): Q. In relation to this particular incident on the boat after you'd ejaculated, was there any other sexual acts that occurred? A. Yeah. They would - they followed from then on, yes. Q. Perhaps that was [the] question. On this particular occasion on the boat-- A. Mm. Q. --so on that day, was there another sexual act that occurred after he had given you oral sex and you ejaculated? A. Me to him and I think there was actually anal sex, I think. Q. So perhaps I'll ask you about, when you say, "Me to him," what do you mean by that? A. Me giving him anal sex, I think. Q. Do you remember what was said in relation to you doing something to Mr Madden? A. No. I don't at the moment. No. Sorry. I just - yeah.
3. The applicant notes that the Crown case in respect of the incident M2 was not that the applicant engaged in anal intercourse with MA on that occasion. The Crown opened its case to the jury in respect of counts 17 and 18 as follows (from T 13.13): So he again goes out on the accused's boat alone after being invited to go fishing. He'll tell, "Well, look, I did it because Mr Madden was giving me cannabis and I thought that was a good way to get cannabis from him." So we go to count 17 and 18 for incident M2. On the top deck of the boat Mr Madden grabs [MA's] penis on the outside of his clothes until [MA] was erect, led him down to the lower level of the boat where the earlier incident happened, and then put [MA's] penis in his mouth and performed oral sex until [MA] ejaculated. That's count 17. Count 18, after that Mr Madden asked [MA] to suck his penis. And after that, with some guidance from Mr Madden, [MA] performed oral sex on Mr Madden until the accused ejaculated. That's count 18.
4. The applicant notes that the Crown was granted leave to cross-examine MA pursuant to s 38 of the Evidence Act as to the contents of a police statement dated 19 April 2017 and MA gave further evidence as follows (T 86.44-87.32): Q. But paragraph 14 is the second incident that you've told us about today. So I just wanted you to have a read of that paragraph to yourself and let me know when you have. A. Yeah. That - yeah. Because yeah, we - when you've got the second incident, it does ring a bit more of a bell that-- Q. So first, I'll just ask you, you've read that? A. Yes. Yeah. Q. And when you gave evidence, you told the jury that on this occasion, Mr Madden performed oral sex on you? A. Yes. Q. And you gave evidence that something other sexual may have happened, but you weren't sure. A. Yep. Q. Having read your police statement, does that refresh your memory as to what occurred? A. Yeah, it does. Yeah. Yeah. Q. And what was that? A. That it was, yeah, oral sex, and he ejaculated in the mouth, I think. That yeah. Q. When you say he ejaculated-- A. No, yeah, yeah, I did in his, sorry. Q. So first, I'll ask you, you've read that? If you can just put it to one side. A. Yep. Q. On this second occasion, there was again oral sex, Mr Madden to you? A. Yes. Q. Do you recall if he ejaculated on that occasion? A. Yeah. Yeah, I do. Yeah. Q. And were there any other sexual acts on that time, that you can recall? A. No, I can't. No.

Count 19 (Incident M3)

1. Incident M3 concerns an incident after the applicant moved to a house on a different street in Sutherland, slightly further away from MA's house (Kurrajong Street). RMS records show that the applicant's registered address was this place (Kurrajong Street) from 25 March 1991 until 5 November 1992 (Ex 1).
2. MA said that he would still visit the applicant there but it was not the same as before ("it wasn't as much hanging out… By that stage our thing had become hidden…. we were going to keep this in the low down" (T 76.1-7). Count 19 related to an incident that was said to have occurred at the Kurrajong Street house.
3. There is no unreasonable verdict challenge to the conviction on count 19.

Count 19: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA said that during year 8, there was an occasion when he stayed at the Kurrajong Street house one night. MA could not remember why he stayed overnight but thought it might have been because he had been to a concert with the applicant's son. MA went to sleep in the spare bedroom and awoke to the applicant performing oral sex on him, which continued for some minutes until he ejaculated (T 76.9-77.29). MA remembers being worried about how close they were to the applicant's children (T 76.24-28).

Counts 20, 21 and 22 (Incident M4) (Incident involving DN)

1. The first of the incidents concerning MA in respect of which the applicant seeks to bring an unreasonable verdict challenge is the M4 incident.
2. Incident M4 relates to an occasion (when MA said he was around "year 8, year 9-ish, around there") when the applicant introduced him to a boy younger than him (who the Crown identified, and there seems to be no dispute as to this, as DN) (T 77.31-50). MA said that on this occasion, he and the applicant picked up this boy (DN) at Wollongong and drove in the applicant's car to the Royal National Park (T 78.1-8).
3. MA said that it was dark when the applicant pulled into "a little dirt bay where people parked to do bushwalks" (T 78.4-8). MA's evidence was that the applicant got a rug out of the car and they went into the scrub. MA said that they must have smoked cannabis as there was "always smoking first" (T 78.15-17). Count 20 relates to the applicant making MA insert his penis into the applicant's anus (T 78.32-40) and count 21 relates to the applicant guiding MA to insert his penis into DN's anus after which MA ejaculated (T 79.11-40).

Count 20: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA said that the applicant laid the blanket down and then made MA give the applicant anal sex (T 78.33). The Crown concedes that this count was statute-barred - see below; and the conviction on this count should be quashed. The applicant also raised an unreasonable verdict challenge to his conviction on this count.

Count 21: incite male under 18 to commit act of gross indecency (s 78Q(2))

1. MA said that the applicant then gestured for MA to have anal sex with DN and so MA did that until, he thinks, he ejaculated (T 79.13-37). There is an unreasonable verdict challenge to the conviction on count 21.

Count 22: commit act of gross indecency upon male under 18 (s 78Q(1))

1. When MA first recounted the M4 incident, his evidence was that the act that was charge as count 21 was the end of the episode (from T 79.39): Q. What happened after that? A. I packed up, went home. Q. After ejaculating in [DN], was there any more sexual contact with Mr Madden? A. Not on that - no, I think that was about it by then. He had had his bit and [DN] had his bit and - no, that was coming to a - it came to an end after that, I think. Yeah, come to an end.
2. In particular, the applicant emphasises that MA gave no evidence in respect of count 22 (that being the allegation that, during this incident, the applicant inserted his finger into MA's anus). It is noted that the Crown Prosecutor opened to the jury on count 22 as follows (T 15.3-9): Finally, count 22, this is a gross indecency by a male, that being it's not an incite. This is one that the accused is involved in because after [MA] ejaculated, when having anal sex with [DN], the accused then inserted a finger into [MA] anus and it caused him pain and he screamed. And that was the end of this sexual encounter.
3. MA's evidence in relation to count 22 was elicited by means of cross-examination by the Crown Prosecutor following a grant of leave under s 38 of the Evidence Act (his Honour ruling that this be conducted in the same fashion as for RA, by seeking to refresh the witness's memory with his statement - see T 85.19). After being shown his police statement dated 19 April 2017, MA gave evidence that, after he had anal sex with DN, the applicant put a finger in MA's anus (T 88.15). (The fact that this evidence was elicited in this manner is again a matter raised under Ground 2.)
4. The evidence given by MA in relation to count 22 under cross-examination (T 87.37-88.27) was: Q. And I'll just ask you to assume that this is when you talk about the first time you went and met [DN]. A. Yes. Yeah, it would be. Q. If you can look just at the last few sentences of paragraph 17 and have a read to yourself and let me know when you have. A. Yeah, that's from, I think, when I made this statement as well, I said that that's what happened. Q. You've read that. A. Yeah. Q. If you can just put that to one side. You told the jury that you were in a position where you had anal intercourse with [DN]. A. Yes. Q. Do you remember if after that act there was anything further as far as sexual-- A. Pat [the applicant] trying to do the same to me. Q. Then what happened? A. I sort of let a bit of a noise out and brought it to a halt. Q. What did Mr Madden do? A. Stopped once I made the noise and it was - yeah. Q. Perhaps I'll rephrase it. What did he do that made you think he was trying to-- A. Put a finger in my anus. Q. What did you feel when he put a finger in our [sic; your] anus? A. Pain. Q. What did you do? A. Screamed and yell - or yelled, sort of, just a - a noise. Q. Did that bring-- A. Yeah. Q. --the incident to a close? A. It was enough just to bring it to a halt.

Second incident with DN on MA's evidence (uncharged for MA; corroboration of DN counts 51 to 53 on the Crown case)

1. MA gave evidence that he met DN again a year or two after the (above) first incident with DN. MA remembers picking DN up in the Wollongong area in the applicant's car (T 79.48) "between a year and two" after the first meeting (T 80.6). MA said the applicant's vehicle was a Commodore at the time (T 80.49).
2. There was evidence that the applicant first registered a Commodore on 19 June 1992 and that he had made a report to police on 22 November 1993 about his car having been damaged that day while parked at the Bushrangers Bay car park at Bass Point in Shellharbour (T 200.48-201.19). The police report records that the applicant reported that his car had been broken into between 9.45am and 10.30am that day. The indictment for counts 51 to 53 specified this date as the date of the offending conduct.
3. MA's evidence was that there was cannabis "as usual", and they went into the bush. MA said that on this second occasion the applicant "basically sets up camp and it was oral sex day" but that the three were disturbed when someone "came along". MA said that there was "a bit of a … panic", and they went back to the applicant's car (T 80.27-34) and that when they returned to the applicant's car, he saw that it had been damaged ("a window had been broken - like someone had maybe attempted to steal something out of there") (T 80.44-49).
4. MA said that he only ever met DN on those two occasions (T 81.1); and MA remembers giving oral sex to both the applicant and DN on that occasion.
5. No charge in respect of MA was brought in respect of this second occasion

Counts 23 and 24 (Incident M5)

1. MA said that the sexual contact occurred "much less" once he was in year 9 (1991 - see T 194). MA said that he would generally try to meet the applicant only when he really needed "pot" (T 81.15). There was an occasion when the applicant was working as a security guard at a real estate agency at the Bangor Tavern shops when MA arranged to meet him there to get cannabis (T 81.25-38). This incident gave rise to counts 23 and 24. The Crown accepts that counts 23 and 24 were statute barred.

Count 23: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA said that when he was in year 9 he went to see the applicant at a real estate agency in Bangor where the applicant was working as a security guard; that the applicant took him to a "tea room out the back of the offices" where there was anal sexual intercourse ("me to him") and oral sex (T 82.1-39). Count 23 related to MA performing fellatio on the applicant on this occasion.

Count 24: homosexual intercourse with male over 10 and under 18 (s 78K)

1. MA said that he (MA) then put his penis in the applicant's anus (T 82.11-13), which is count 24. MA thinks the applicant might have tried to do the same to him but said that it did not go "down too well" and so the applicant stopped (T 82.11-15) (this attempt not being the subject of a charge).

Complaint by MA

1. MA left school in 1992 and started an apprenticeship. MA said that the sexual contact with the applicant stopped when he left school at the end of year 10, which was the end of 1992 (T 86.09-12).
2. MA said that he never disclosed what was going on to anyone at the time as he was known as "a tougher guy" at school and he had to "keep my persona up - or whatever - I've always played the tough guy" (T 83.1-3). However, after RA told him of his allegations, MA said that "the penny dropped why [RA] also hung around Pat". This led to MA telling RA his own story and then, eventually, he went to the police. MA first went to the police in 2016 but he said that they sent him away as they said there was no evidence (T 83.33-38).
3. MA's wife gave evidence that MA first made a complaint to her in 2006 or early 2007 (T 157.39); and that MA mentioned he had been abused when he was younger and raised an allegation of sexual abuse on a fishing boat (T 157.34-158.16).

Cross-examination of MA

1. The cross-examination of MA comprised the following six questions (T 88.33-89.2): Q. [MA], I want to suggest to you that there never was an occasion that Mr Madden shared cannabis with you. A. I disagree. Q. There was never an occasion that he bought you beers. A. I disagree totally. Q. Or made you drink the beer. A. I never said "made me drink the beers", I said he supplied the beers. I never said that he forced me to drink the beer. Q. There was never an occasion that he had sex with you. A. Yeah, I disagree with that. Q. Or had sex with you with-- A. I disagree. Q. Sorry, let me finish the question. Or had sex with you in the presence of [DN], [or] any boy. A. I totally disagree.

Offences alleged by DN: Counts 25 to 59

1. DN was the third witness in the Crown case (and the complainant for the majority of the counts). Growing up (and prior to 1991), DN said that he saw the applicant once or twice a year.

Count 25, alternative 26 (Incident D1)

1. DN said that, shortly after the death of his father (which was in January 1991), possibly in the Easter holidays that year, his mother arranged for him to go and stay with the applicant's family at the Kurrajong Street house (T 94.3-95.40; Ex C). DN was 12 years old at the time (T 98.8-9) and had not had marijuana or alcohol before.
2. DN's evidence is that after being at the Kurrajong Street house for a night, the applicant arranged to take DN out fishing on his boat at Yowie Bay. DN said that the applicant got home from work and drove DN to the marina where the boat was moored, stopping at a bottle shop along the way to buy "Strongbow" for DN. DN had never drunk alcohol before (T 96.26-34).
3. While on the boat, the applicant gave DN alcohol and cannabis, which he had not had before, and it was not long before he was feeling ill (T 97.38-45). The applicant told him to go and lie down on the bunk. When DN went to get into the bed, he noticed it had been made in "a weird way" and the applicant told him that that was how they used to do it in the navy. DN lay down and believes he must have passed out (T 98.34).

Count 25, alt count 26: aggravated sexual assault (s 61J), alt sexual intercourse with child under 16 (s 66C)

1. DN's evidence is that some time during the night he woke up and the applicant's hands were on his penis. DN asked "what are you doing?". The applicant then began to give him oral sex. DN said he was in shock and was hysterical, crying out "stop. Stop. My dad wouldn't want you to do this. Please stop" and "my dad will kill you for this when he finds out". DN was crying and tried to push him away with his hands but the applicant "kept on doing it" (T 98.33-46). The applicant responded that "Your dad wouldn't mind. Your dad would want this sort of thing" (T 98.43-45). The applicant kept going until DN ejaculated and then asked him "does that feel good?" (T 99.13).
2. There is no unreasonable verdict challenge to the convictions on count 25 or the alternative count 26.

Count 27 (Incident D2)

1. The next time that DN saw the applicant was at a family friend's 18th or 21st "or something along them lines" in Albury (T 99.38). It was about "a month or two" after the previous incident (T 100.13).
2. DN's account of the incident was that: the applicant was in Albury with his family and arranged to take DN fishing; the applicant picked up DN from where he was staying and drove him to the Hume Weir to go fishing (T 99-100); they drove around for a bit, until the applicant said that they were in a good spot for fishing and parked the car; the applicant got a tartan picnic blanket out of the car and said to DN "why don't you come and lie down here for a minute"; and DN lay down and the applicant put his hands on DN's penis. DN says he said "it's this game again" and the applicant replied "this is our … secret fishing game…and you can't tell anyone about it" (T 100.43-101.6).

Count 27: sexual intercourse with child over 10 and under 16 (s 66C)

1. Count 27 relates to the conduct on this occasion, namely that the applicant played with DN's penis and then performed fellatio on DN until he ejaculated (T 101.3-6). DN said that the applicant then asked him, as DN said he always did, "did that feel good?". DN said he told him that he did not want to play that game and just wanted to go fishing.
2. There is no unreasonable verdict challenge to the conviction on count 27.

Counts 28 to 33 (Incident D3)

1. DN's evidence was that he thought the next time that he saw the applicant was on a weekend (T 101.49) not long after the Albury incident and he was still aged 12 (T 102.7-8). DN said that he went fishing with the applicant on his boat again; that they went to "pump the yabbies"; and did some fishing. DN said that there was "Strongbow" and cannabis (T 102.21-24).
2. There is no unreasonable verdict challenge to the convictions on counts 28 to 33.

Count 29: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 29 relates to an incident after DN became sleepy and went into the cabin area of the boat (T 102.32-103.9). DN said that the applicant put his hands on DN's penis and then performed fellatio on DN until he ejaculated (T 102.45-103.21).

Count 28: aggravated indecent assault (s 61M(1))

1. Count 28 is that the applicant then took his own pants off and placed DN's hand on the applicant's penis (T 103.24-25).

Count 30, alt count 31: aggravated sexual assault (s 61J), alt sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 30 (alternatively 31) relates to DN's evidence that the applicant then brought his penis up towards DN's mouth and "tried to get me to perform oral sex on him". DN said that the applicant's penis went into his mouth, causing him to gag and making him want to throw up (T 103.50-104.20). DN said that the applicant's penis was in his mouth for 10 to 20 seconds. DN said that he said "I don't want to do that" and "please don't make me do that".

Count 32, alt count 33: aggravated sexual assault (s 61J), alt sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN says that the applicant then rolled DN onto his stomach and "hopped in between my legs from behind … and just proceeded to push his penis into my anus" which DN said caused "the most excruciating pain I've ever felt in my life". DN was crying and saying "please stop", "please get off me", "my dad will kill you" but he said the applicant "just kept on going" for about ten minutes until it appeared that he ejaculated (T 104.22-44). DN said that the applicant used lubricant that he kept in a film canister (T 104.50-105.5). DN's evidence is that the next day, DN noticed that he was bleeding from his anus (T 105.27-32).
2. Pausing here, I note that DN's father had died in January 1991. Therefore if the incident occurred in the following Easter holidays then it is not clear why the reference to "my dad will kill you" would have been made.

Counts 34 and 35 (Incident D4)

1. DN said that during 1991, his family changed addresses several times but remained in the Dapto area. DN said that his mother would frequently send him to visit the applicant's family and, on those occasions, there would always be sexual contact, "whether it be fishing or whether it would be, you know, In the, in the house when no one was home or whether we would go for a drive somewhere" (T 106.9-14). DN said that one of the places they would go was the Audley National Park (T 106.24); and that another place was at Bushrangers Point (T 107.6), where they would go fishing from the shore. According to DN, the applicant would pull out the same picnic blanket he had used in Albury (see incident D2 above), perform oral sex on DN, and then try to get DN to do the same to him (T 107.11-23).
2. There is an unreasonable verdict challenge to the convictions on counts 34 to 35.

Count 34: sexual intercourse with child over 10 and under 16 (s 66C(1); count 35: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Counts 34 and 35 relate to the evidence that DN gave as to the "the first time" that he "went to this park and the picnic blanket was produced" (T 107.25-39). DN said that it was at Albury that the picnic blanket was produced "originally at that spot: and then on the next occasion when he saw the blanket in the national park was "within the next four to six months maybe, somewhere around there" after Albury incident (T 107.37-43). DN gave the following evidence about the incident (T 108.1-23): Q. After he laid the blanket down, what happened? A. He had me lie down on the blanket then started playing with my penis through my pants and then, you know, his hand would soon be down my pants and taking my pants off. I remember I wouldn't do anything. He would be the one that would instigate and take my pants off for me, because I'd just lie there I guess and want it to be over and done with quicker. Once again he would, you know, play with my penis, put my penis in his mouth [This is count 34: sexual intercourse with child over 10 and under 16, s 66C(1)], make me ejaculate, you know, try to get me to do the oral sex on him [this is uncharged] and have me, you know, touch his by placing my hand onto him and he would, you know, have me roll over and have anal sex with me from behind [this is count 35: sexual intercourse with child over 10 and under 16, s 66C(1)]. Q. So on this occasion was there the lubricant and the canister? A. Yeah. He always seemed to produce the canister. He'd always have it in his pocket and then, you know, it was always - I clearly remember the sound of that canister opening and closing. Q. By this point - so this time on the picnic blanket in the park - were there words being said or was it just actions? A. Words during, do you mean? Yeah, he'd always ask me, you know, "Does that feel good? Do you like that?" and I just wouldn't answer it. I would be quite - you know, I think I even remember on numerous occasions he was, like, "Why don't you say anything? Why don't you talk?" and I was just like, "Mm, mm."
2. The applicant contends that this account was insufficiently particular to found a charge, which contention forms part of Ground 2 (unreasonable verdicts).
3. The Crown notes that later in his evidence DN confirmed that this incident was the second time he saw the applicant produce that picnic blanket (the first time being in Albury) (T 117.39-50).

Counts 36 and 37 (Incident D5)

1. DN gave evidence that another place that the applicant used to take him to in his car was to Woronora bridge (T 108.25-49).
2. Counts 36 and 37 relate to "the first time" that the applicant took DN there (T 108.37-43). (A complaint made in Ground 2 is that the evidence that DN gave about counts 36 and 37 was insufficiently particular to sustain the verdicts.)
3. The evidence of DN about the D5 incident is as follows (T 108.25-110.16): Q. Were there any other locations apart from the national park that you would go in the car with Mr Madden? A. In the Sydney area there was, you know, there was numerous spots where - you know, another one comes to mind, Woronora before the overpass was put in when you used to have to drive down the bottom. There was a spot down there, you know. Q. Perhaps just for those that aren't familiar with the area, what was there and where would you park? A. At the Woronora are you talking about. Q. Yes. A. So he would drive down to where the river was and you cross the old version before the overpass was there, and you'd drive across. So on both sides of the road there was like a picnic area or something along them lines it was, like a carpark of some description. It wasn't tarred; it was dirt, and he used to drive a fair way and he'd park at the end, have me hop into the back seat of the Range Rover and, you know, there were times where he wouldn't do the oral - playing with my penis part and the oral sex upon me. He'd just have anal sex with me. Q. Do you remember in particular the first time you were taken to this area - I think you've said there's an overpass there now but at the time was at a bridge. Is that right? A. Yeah, I think it was a small bridge. There was nothing spectacular. Q. And it's different now than - A. Yes. Yeah. Q. -when you were there. A. Yep. Q. Were there other cars around? I'm just going to try and focus on the first time. A. No, there was no other cars around at the time, no. It was night-time. Q. Do you remember the first time that there was this act of sexual intercourse inside the car at Woronora? A. Yeah, yep. Q. What happened? A. So he'd have me - we'd pull up in the carpark, he'd fold the seat down on the Range Rover, have me hop in the back of the car. Q. Perhaps I'll ask you, which seats were folded down? A. The back seat would fold down, yep. Q. And then what happened? A. He would have me hop into the back seat of the car. He would, you know, proceed with trying to get me to have an erection and make me ejaculate and then, you know, he's always trying - Q. Do you recall how he made you ejaculate on this occasion? A. Orally, with his mouth, yeah [this is count 36: sexual intercourse with child over 10 and under 16, s66C(2)], Q. Then what happened? A. He would then, you know have me roll over on my stomach which I knew exactly what that always meant. He would, you know, take his pants off. When he put my hand on his penis, he tried to get - you know, make me get him an erection or you know. So he had me roll onto my stomach. Either he'd already had me give him an erection or he'd get an erection himself by playing with himself, and then proceeded you know to get that film canister out again. He even kept, you know, a bottle of baby oil in the glove box of the car. He produced that baby oil or Vaseline and then put it on his penis and have anal sex with me. Q. Just in relation to this occasion and the first time at Woronora bridge, how did he get you to roll over? Was it actions or words on that occasion? A. No. He would physically roll me over, yep. Q. And on that occasion was there anal intercourse? A. Yes [this is count 37: sexual intercourse with child over 10 and under 16, s 66C(1)]. Q. How did it come to an end? A. It would come to an end with him, as it did all the times of him, you know, having anal sex with me and ejaculating inside me and everything, yeah. Q. Was there ever any use of a condom? A. Never. Never. Q. But on this occasion there was lubricant from the canister. A. That's correct. Q. Or something in the glove box. A. That's correct. Q. About how many times do you think something happened at this area near-- A. In the Woronora area? Three or four maybe on that spot. I don't think he really liked that spot because it was a spot that cars could quickly drive in. Usually if he was going to pick a spot, it would be a secluded spot where cars weren't easily accessible or he could see them coming.

Counts 38 and 39 (Incident D6)

1. DN said that there were occasions he also had marijuana with the applicant at his home at Kurrajong. DN's account of one such occasion (T 110.35-43) formed the basis of counts 38 and 39. The conviction on ground 38 is subject to the unreasonable verdict challenge; not the conviction on count 39.

Count 39: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN's account is that one night, the applicant invited DN to come into the garage of the Kurrajong Street house with him while his wife was asleep. The applicant gave DN some marijuana out of a bong and then bent him over a table and pulled down his pants (T 110.39-40). DN said that the applicant inserted a bottle into DN's anus (uncharged) and squeezed some type of liquid out of it and then had anal sex with him (T 110.40-43). DN's evidence was (from T 110.35): A. And, you know, that's [the Kurrajong Street house] where he would smoke his marijuana. So one night his wife was asleep. So he said, "Come down to the back garage." He gave me some marijuana out of that bong. There was no alcohol involved, you know. I didn't drink anything; gave me some marijuana out of that bong. There was a table there. He proceeded to bend me over the table and pull down my pants, couldn't see what type of bottle it was, but it was some type of bottle of something that he inserted into my anus and squeezed the liquid out of, had anal sex with me then while I was bent over the table, and ejaculated, and then cleaned himself up with some sort of rag or towel or something that was there, and we went back inside. Q. Was this the first time that an object like a bottle had been inserted into you? A. That's correct, yeah. Q. Was there any lubricant used on that bottle that you can recall? A. Not that I can recall. I think something came out of that bottle. Q. In relation to this, do you remember at the time being at the house what car Mr Madden, had? A. I think it was still the blue Range Rover. Q. As far as then this sexual contact happening inside the house at Kurrajong Street, was that a one off or was it-- A. No, it had happened quite often. If there was no one home, or at any time, you know, he would take that opportunity to go to one of the end bedroom there, and have intercourse with myself. Or you know, if we'd walk past - or if he walked past me in the house and no one was in the vicinity, he'd grab me on the penis, or if I walked past him, he would grab me. He would make sort of gestures towards me, you know, of like the position you'd put your mouth in if you wanted to do oral sex on someone from across the room if no one was looking, yeah, and that sort of thing. Q. Would sometimes this be while no one was looking, but other people were around? A. Yes, that's true. Q. But nothing was ever raised at that stage with other family members in your presence? A. No. Q. Now, on this occasion that you've told us about with the bottle, was there any sexual activity that occurred prior to the bottle being inserted into you on that occasion? A. Sexual towards myself? Q. On this particular day; did it start with the bottle, or was there something that happened before the bottle? A. No, I don't believe there was any sort of activity before the bottle. Q. Was anything said about what was going to happen with the bottle? A. No, nothing. Q. Do you remember how it was that the bottle was put into your anus? A. Well, like I said, I was facing - bending over the table, so I couldn't see what was happening behind me, but I felt the neck of the bottle go in first, and then it proceeded to get larger as it went in. Q. Were your clothes pulled down or removed? A. My pants were down around my ankles. Q. Who did that? A. He did that. Q. Did you actually see the bottle afterwards? A. No. I didn't see the bottle. I remember the feeling of it going in and what it felt like, and your Honour after he'd finished, I remember feeling you know, whatever it was coming out again. Q. It was different to the previous anal intercourses that you'd had with Mr Madden? A. Correct, yeah. Q. Did you, because of how it felt, think it was a bottle? A. Yes, that's correct. Q. I'm just going to now take you back to the boat…

Count 38: sexual intercourse with child over 10 and under 18 (s 66C(1))

1. As can be seen from the above, when DN first recounted the bottle incident, he did not give any evidence about count 38 (i.e., that the D6 incident involved an act of fellatio). Indeed, DN gave evidence that he did not "believe there was any sort of activity before the bottle" (T 111.33).
2. The evidence giving rise to count 38 was elicited in cross-examination of DN following a grant of leave under s 38 of the Evidence Act. (Again, the fact that the evidence had to be elicited in this manner founds a contention under Ground 2 that the verdict in respect of count 38 was unreasonable.) His Honour directed that the cross-examination of DN about count 38 be undertaken in the same manner as previously described in respect of the other witnesses (T 145.31). DN's police statement was dated 8 February 2017.
3. The cross-examination was as follows (from T 146.33): Q. If I can just ask you to put it [the police statement] to one side for now. Now, this is the incident in which a bottle was inserted into your anus. A. Yes. Q. Does having read your police statement assist your recollection as to whether anything of a sexual nature happened prior to the insertion of a bottle into your anus? A. Yes, having - yes. Q. What happened? A. So I do recall smoking the marijuana down in the back shed there. He did reach over and start playing with my penis with his hands, and then pulled my pants down and proceeded to have anal sex with myself. Q. And in relation to prior to a bottle being inserted into your anus-- A. Mm-hmm. Q. --what occurred? A. So he was - the - the smoking of the marijuana, and then the playing of my penis with his hands and performing the oral sex. And then, performing anal sex. Q. Did you ejaculate at any point during this incident? A. Yes. Q. When was that? A. When he was using his - performing oral sex on myself.
4. Thus, after referring to his statement, DN said that he recalled an act of oral sex (the applicant performing oral sex on him) before the applicant had penile/anal intercourse with him (T 146.37-147.9). As noted, there is an unreasonable verdict challenge to the conviction on count 38.

Counts 40, 41 and 42 (Incident D7)

1. DN's evidence is that the applicant used to ask DN if he had any friends who would want to come fishing with them (T 112.14-18). Counts 40 to 42 reflected an occasion involving DN's friend (BW). (As will be recalled, there was a not guilty verdict for count 40 and a directed not guilty verdict for count 41. There is no unreasonable verdict challenge to the conviction on count 42.)
2. DN's evidence is that he thought that he would have been in around year 8 by then (T 113.2). DN said that the plan was to do some fishing on the boat and then the applicant was going to take the boys out on the pilot boat that he was working on at the time (T 112.31-37). DN said that the applicant drove them to the Yowie Bay marina stopping for Strongbow at a bottle shop on the way (T 113.7-11). The three rode in the dinghy out to the boat and pumped for yabbies. Both DN and BW drank beer and smoked marijuana (T 113.20-24). DN remembers becoming sick again. DN said that BW was "quite drunk and happy" (T 113.48).
3. DN remembers sitting on a milk crate fishing at the back of the boat, when BW joined him and started touching his penis. DN said that he had spent a lot of time with BW before this and nothing like this had ever happened before so he thought BW must have been coerced into it. However, he did not hear the applicant say anything to that effect to BW prior to the touching occurring (T 114.1-48).
4. DN said that the applicant said "oh look at you two, why don't you come down here" (T 114.9-10). He said that they went downstairs and DN lay on the bed first, followed by the applicant, followed by BW. DN said that the applicant started trying to play with BW's penis but BW told him to stop, saying "no, no, stop … this is wrong, there's no girls here" (T 114.29-33).

Count 42: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN said that the applicant then stopped what he was doing to BW and that the applicant had anal sex with DN (T 114.36-115.17).
2. DN's evidence is that the following day, they took the pilot boat out, as planned. There are photographs of the boys on the pilot boat taken that day (Ex D). Later on, the applicant pulled DN aside and told him that if BW said anything "just say that [BW] … hit his head pretty hard on the bunk last night, he must've dreamt it" (T 115.36-46). DN's evidence is that later on, BW asked "what happened?" (T 115.48-50) and DN remembers telling him he hit his head really hard on the bunk "and maybe you were dreaming, or tripping out" (T 115.50-116.2).

Count 40: incite DN to commit an act of gross indecency on BW (s 78Q(2))

1. The evidence giving rise to count 40 came not from DN (who did not hear the applicant telling BW to do anything) but from BW. BW remembered the weekend and that "the highlight" was the promise of the ride on the pilot boat (T 151.50). BW said that he was given alcohol and cannabis and that he felt drowsy (T 152.48-153.36). BW said he remembered being helped to the back of the boat to urinate and then he went to sleep (T 153.38-42). The next thing he remembered was "my hand on [DN's] penis, and him touching me" (T 153.45). The applicant was nearby and was encouraging them to touch each other (T 154.6-7). BW thought that it was all "some sort of weird dream" until police contacted him in February 2017 (T 155.17-22). The jury found the applicant not guilty of this count.
2. No evidence was given in relation to count 41 and, as noted, that was the subject of a directed verdict (T 215.25-30).

Counts 43, 44 and 45 (Incident D8)

1. These counts are the subject of Ground 1 in the appeal, the applicant maintaining that they are statute-barred. Otherwise there is an unreasonable verdict challenge to the conviction on count 44 only.
2. DN's evidence is that, after working on the pilot boat, in around 1992 the applicant started working for TNT as a night security guard (T 118.39-119.25). The applicant was still living in the Kurrajong Street house at this time (T 118.50). As noted, the applicant was registered with the RMS as living at that address between March 1991 and November 1992 (T 202.20).
3. DN said that one night while the applicant was working as a security guard, he took DN to work with him. DN remembers driving into a warehouse in the applicant's car (T 119.21-28). The applicant was in charge of the gate. DN sat there with him and found it "pretty boring" (T 119.37). DN remembers that they did a patrol and did a loop with one of the trucks (T 120.14-20). DN said that they then got into the back of a white TNT van and the applicant pulled the door shut (T 120.29-30). DN said that at some point in the back of the van, the applicant played with his penis with his hands and fellated him.
4. The evidence relied on for counts 43 to 45 was (from T 121.10) as follows: Q. What happened after he put your penis in his mouth? A. That time he attempted to have me have oral sex with him, produced that canister again and the liquid that was in that canister whether it was baby oil or Vaseline, put that onto my penis and had me from behind while he was, like, bending over on all fours and had my try and insert my penis into his anus. Which, you know, I was limp I, you know, wasn't willing to do anything, so he soon got sick of trying to do that and had me lie back down on the ground on all fours and proceeded, put the liquid onto his penis and have anal sex with myself which happened until he ejaculated Q. So perhaps I'll just ask you about when you were having, or attempt to have anal sex with Mr Madden, what was Mr Madden doing? A. So he was sort of crouched down with his hand sort of behind me, he had me sort of pull me round behind himself and then try and direct my penis into his anus. Q. You've just reached your right hand behind your back. A. Yes. Q. And was that hand touching your penis? A. Yes, yes. Q. And after the oral intercourse what was the state of your penis at this initial time? A. It was sort of erect from when he'd already been playing with, you know, performing oral sex on myself. Q. Do you recall whether you penetrated Mr Madden's anus to any extent? A. I think that was the issue, you know, I wasn't into it so, you know, my erection soon was non existent, yeah. Q. Do you recall whether with the state of your penis there was any penetration on this-- A. There might have been slight penetration, yeah, but you know I wasn't doing the motions of what you do to have anal sex as he would do to myself. Q. And did you say, was any lubricant applied to you prior to that? A. Yes, that's correct. Q. Now, after you been guided by Mr Madden and not being erect you then said Mr Madden had anal sex with you. A. Yes. Q. And what then happened? A. He would have anal sex with me until he ejaculated inside my anus and then, you know, he would you know just go back to normal, you know, I'd pull my pants back up and then we went and sat back in the gatehouse. Q. And do you recall what time you were there? A. It was too early ..(not transcribable)..I think that's when it was still dark so, you know, whatever time 5am or something like that.

Count 43: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 43 relates to the evidence that the applicant played with DN's penis and then put his mouth on DN's penis (T 121.1-3).

Count 44: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. The applicant notes that, in respect of count 44, the Crown had opened to the jury as follows (T 21.16-18): … the accused then asked [DN] to put his penis in to the accused's anus and have sex with him. So that count is [DN] engaging in anal intercourse with Mr Madden until he ejaculated.
2. As extracted above, DN said that the applicant took out the canister of baby oil and put it on DN's penis and then bent over onto all fours and tried to get DN to insert his penis into the applicant's anus. DN said, however, that he was "limp I.. wasn't willing to do anything, so he soon got sick of trying to do that". As to the issue of penetration, DN said that there "might have been slight penetration…but you know I wasn't doing the motions of what you do to have anal sex as he would do to myself" (T 121.16-45).
3. Following a grant of leave under s 38, DN was shown his police statement and gave the following evidence (from T 148.27): Q. Does that assist your memory as to whether there was any penetration when you were engaging in anal intercourse with the accused? A. Yes, yes. Q. What occurred? A. It was one of the times where I was coerced into having anal sex with [the applicant] until I ejaculated. Q. And in that regard on this date in the TNT van, was there penetration of the accused's anus by your penis? A. Yes.
4. The applicant points to the fact that unequivocal evidence of penetration was only elicited in this manner (see his complaint that the verdict in relation to count 44 is unreasonable as the jury ought to have entertained a doubt about penetration).

Count 45: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 45 relates to the evidence that the applicant then had DN lie on the ground on all fours; the applicant put lubricant on his penis and had anal sex with DN until he ejaculated (T 122.4-7).

Counts 46 and 47 (Incident D9)

1. The Crown Prosecutor opened on incident D9 as follows (T 21.21-31): Incident D9 is an incident that occurs at Shellharbour, and it's counts 46 and 47. [DN] will tell you on an occasion in 1993 he was collected from his home in Dapto and drove to Bass Point Reserve in Shellharbour. The accused parked the [car] and [DN] got on to the back seat. And, as with a lot of this later sequences as far as what occurred, count 46, you'll hear that the accused, Mr Madden, started fondling [DN's] penis before removing it and performing oral sex on [DN] until he ejaculated. Count 47, on this occasion we have the production of this clear film canister with baby oil in it. Mr Madden rubbed oil on his penis and then inserted his penis in to [DN's] anus until he ejaculated.
2. DN's evidence is that when the applicant was working as a private investigator, he would phone DN when he was in the Wollongong area and tell him to take the day off school so they could do something together (T 123.35-40). DN said that accepting these invitations was a means by which DN could get marijuana (T 123.42-46). DN said he would sometimes get marijuana before sexual contact and "always after" (T 123.50).
3. DN's mother gave evidence that she was aware that the applicant would visit her sons at their Dapto home when he was in the area (T 184.49-185.4); saying that she was working full time by this stage and that it was accordingly up to DN to make his own way to school. DN's mother said that she would not therefore have been aware if he was skipping days at school (T 185.16-17).
4. DN said that "most of the time" the applicant would pick him up from his house and they would drive to the Shellharbour area, where he would pull into a secluded track. His evidence was (from T 123.35): A. So there was, so when we moved to Dapto we were living in a Werowi Street address, yeah it was Werowi Street and he often come down to Wollongong, you know, he'd have me have the day off we'd speak on the phone, you know, he'd be like you should have tomorrow off I'll come down to Wollongong and I'll pick you up because he'll be in the area working as a private investigator of some description for insurance company. Pick me up, you know I'd come to your house and I'll come pick you up and we'll do something and I used to fit - because I was new at the school I guess and I was trying to be cool as such, I sort of had this means of obtaining marijuana from Pat and this was and Pat was always most of the time provide me with marijuana for doing that. Q. And when you say provide you with marijuana was this during sexual contact or after it? A. Sometimes, you know, before but always after - always after. Q. Was that marijuana that would be smoked during the time you were with Mr Madden or marijuana you could take away? A. Marijuana I could take, sorry going back to where we were heading with that one, so most of the time he came down and picked me up from my place in Werowi Street and we went down to Bass Point which is south of Wollongong, Shellharbour area there and it's a bit of, not so much now but it was back then secluded sort of spot it's a reserve sort of thing a national reserve, recreation park or something like that. So we drove down to there and there's plenty of little, you know, tracks and stuff that head off well there was back then but not so much now it's a bit more populated but anyway. Drove down this one little track where he'd have me hop in, pulled up in a secluded track he'd hop into the back seat and he slid the front seats forward on the Ballina and things went pretty quick when we were in the car. So soon, you know, he would perform he would play with my penis with his hands, perform the oral sex have me ejaculate and then sort of roll me over on my stomach in the back of the seat and proceed to have anal sex with me from behind until he ejaculated. Q. So this trip to Bass Point in Shellharbour was after he picked you up from your house. [The applicant says that up to this point DN had not been giving evidence of a "trip" to Bass Point] A. That's correct. Q. Wasn't when you were staying at Sutherland? A. That's correct, yes. Q. So after it on this occasion where were you dropped back? A. Back at home again. Q. And how often after that would he come and visit the Dapto address and pick you up? A. It happened, it happened a few times, you know, he was always very paranoid of coming to my place sometimes he'd have me meet him down the street and round the corner because he didn't want to be, you know, picking me up and he said if anyone ever asked why he was at my place or, you know, sometimes he'd come to my place and he wouldn't pick me up he'd just stay there he'd quickly come over, come inside lock the door straight away and close the blinds. Proceed to have, you know, anal sex with myself and - and then leave again. And he told, you know, he said to say, if my mother or anyone else ever asked, if they said they saw my car - his car in my driveway, just to say that he was down there on work and he just stopped over for lunch.

Counts 48 and 49 (Incident D10)

1. DN said that the applicant came to his house in Dapto "a few times" but he "was always very paranoid of coming to my place sometimes he'd have me meet him down the street". On other occasions, DN said the applicant would quickly come over, lock the door and close the blinds and have anal sex with DN (T 124.35-44).
2. Counts 48 and 49 related to the "the first time" that the applicant came into DN's house at Dapto (T 124.50-127.7). DN arranged with the applicant that he would take the day off school and the applicant would visit (T 125.2-5).
3. There is no unreasonable verdict challenge to the conviction on counts 48 and 49.

Count 48: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN said that he and the applicant were in DN's bedroom; the applicant took off his suit and hung his coat on the cupboard and carefully folded the trousers so they would not get crushed; and left on the singlet or t-shirt he would always wear underneath (T 126.35-39). DN said that he lay down on the bed clothed and the applicant took DN's pants off. The applicant played with DN's penis and then put DN's penis in his mouth (T 126.42-46).

Count 49: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN said that the applicant then had anal sex with DN until he ejaculated (T 126.50). The applicant then got dressed and gave DN some marijuana (T 127.1-4).

Count 50 (Incident D11)

1. DN gave evidence of another incident at his home in Dapto when three of his friends were there. DN said it was probably at the beginning of year 9 and he took a day off school with three friends. DN said that he and his friends wanted some marijuana but had no money. DN had told them that he used to get marijuana from his uncle and so his friends asked him to call his uncle to get some. DN said he agreed but told them they would have to hide as his uncle would not come to the house if they were there (T 127.35-42).
2. DN rang the applicant and said he was home. The applicant said he would come over and DN sent his friends out to hide in a laneway (T 127.47-50). DN said that the applicant arrived and they went into the bedroom (T 128.1-8).

Count 50: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. DN says that the applicant gave DN oral sex (not the subject of a charge) and then had anal sex with him until he ejaculated (T 128.1-8) (count 50). DN said that he then asked for some marijuana and the applicant got some from his car and gave it to him (T 128.18-23). DN said that as the applicant drove off, he must have noticed DN's friends waiting nearby as he called him, angry, and said "they were your mates there … don't ever do that again" (T 128.32).
2. There is no unreasonable verdict challenge to the conviction on count 50.

Counts 51, 52 and 53 (Incident D12) (Incident with MA)

1. Apart from the incident with BW, DN said that there was another occasion involving sexual activity with the applicant and another person (T 128.49-129.9). DN gave evidence of an occasion when he had arranged with the applicant to take the day off. DN said that the applicant pulled into the driveway in his red Berlina (a car which the applicant first registered on 19 June 1992) and someone was sitting in the front of the car. DN said he jumped into the backseat and the applicant said to him "you remember [M], don't you?". DN said that he had met "M" some years before when the applicant was living in Sunbury Street and that he knew M to be a friend of the applicant's son Paul (T 129.7-9). There was no dispute that this person must have been MA.
2. At T 129.11, DN said that he had just met M briefly when he was at Sunbury Street with Paul and another boy and that they were walking to somewhere and met this M in the oval along the way. (Note that MA's earlier evidence was that the first time he and DN met each other they had engaged in sexual activity with the applicant and one another in the bush - see counts 20 to 22.)
3. DN said that he thought M was older than him "roughly 17, something like that" (T 129.33). DN said he would have been introduced to "M" as "D". DN said the applicant told them that they were going to go for a drive to, "check out the surf" or something like that, and they drove to the Bass Point area (T 129.45). DN said that when they arrived the applicant parked his car in a carpark along a dirt road and grabbed a picnic blanket out of the boot; and that the applicant rolled a joint and said "we'll just go for a walk and we'll smoke this around the corner" (T 130.22). DN said that they went down to the rocks and around a corner and the applicant put the picnic blanket down.
4. DN's account of what happened next (from T 130.24) formed the basis of counts 51 to 53: Q. Where did you go? A. So we hopped out of the car, proceeded to walk down to where the rocks were and walked around a little bit along - rock hopping sort of thing I guess you'd call it, until, you know, about maybe five-minute walk around the corner. There was no tracks or anything like that. The only way you could access it was along the rocks, went back up off the rocks a little bit, and Pat put the blanket out and smoked the joint. Then, you know, he proceeded to play with myself and [MA] at the same time, and that was the first sort of signs that that was happening, yeah. Q. When you say he was playing with you and [MA], what was happening? A. So he had his hand on my penis and had his hand on [MA]'s penis as well. Q. Then what happened? A. So he proceeded to play with - like, do oral sex on myself and then also playing with [MA] as well. Q. I know it's probably clear, but just because there's three of you in this incident, when you say he did oral sex who was it that-- A. Okay. So Pat was performing oral sex on myself. Sorry, I skipped the bit where he, you know, pulled my pants down to below the knees sort of thing. Yeah, he was performing oral sex on myself and had his hand - I'm looking over and seeing his hand on [MA]'s penis region as well. Q. Where are the three of you? A. I was lying on the blanket. [MA] was on one side and Pat was sort of in the middle basically. Q. After this act of oral intercourse on you, what happened next? A. So Pat proceeded to keep doing that to myself for a bit, and then Pat had anal sex, like, with myself and he ejaculated inside me, and then proceeded to direct [MA] to have anal sex with myself. [MA] was a bit reluctant at first, bit I remember Pat saying, "No, it's okay. It's okay." Q. And did [MA] penetrate our [sic: your] anus on that occasion? A. Yes, that's correct. Q. You said that Mr Madden was saying some things to [MA]. What can you recall? A. Yeah, I think [MA] was a little bit reluctant to have anal sex with myself at first, and then- - Q. Just in relation to forming that view, was that from something that was said or just what you observed? A. Just from what I observed, yeah. So I guess he was coerced I guess in a way by Pat to have sex with myself. Q. What did you hear? A. You know, [MA] was like - I can't remember exactly the conversation, but I remember Pat saying, "No, it's okay. It's okay. [DA] wants to." Q. When [MA] was having anal intercourse with you, where was Mr Madden? A. Mr Madden was - well, he wasn't in front of me. I guess he must have been at the end, because I was lying on my side, [MA] was on his side behind me having sex with myself, and I don't remember Pat being in, you know, eyesight of me. So he must have been down towards my feet somewhere. Q. Did that act come to an end at some point? A. Yeah. [MA] had sex with me for a while and he ejaculated inside myself, and then Pat proceeded to lie me back down and performed oral sex on myself until I ejaculated. Q. On that occasion, the act of oral intercourse, was that after [MA] had had anal intercourse with you? A. That's correct. Q. And was that when you ejaculated? A. That's correct. Q. Was there anything else that occurred on that particular occasion? A. I guess it was all over then, and I remember being - you know, I was - I remember pulling my pants back up and walking, you know, back to the car, around the rocks and that. I guess I was in shock that had just occurred, let alone, you know, with two people. Walked back to the car, and we got back to the car, they hopped in the front seat and I hopped in the back. I remember when I hopped in the back, I noticed there was glass all over the seat, and I went, "Whoa, what's this," and then the back window of the car had been smashed and I went - Pat said something or other or something and looked, and I wasn't sure if it was then or later that he noticed his binoculars were missing off the back parcel tray, and they were in like a tan sort of case, and the only person that was around as we drove out was the ranger, and he's hit the ranger up and said, you know, "Did you see anyone? My car's just been got the back window broken," and the ranger said, "No, no, I haven't seen anyone," and I think even Pat blamed the ranger at one stage and said it was probably him, you know. Drove me back to my house and dropped me off and left, went back to-- Q. But you raised at that stage that a window had been smashed and you understood something had been stolen. A. Yes, that's correct.

Count 51: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 51 relates to the evidence that the applicant put his hand on DN's and MA's penis and the applicant then gave oral sex to DN (T 130.34-39) while he had his hand on MA's penis.

Count 52: sexual intercourse with child over 10 and under 16 (s 66C(1))

1. Count 52 is that the applicant then had anal sex with DN until the applicant ejaculated (T 131.2-3).
2. It is noted that DN said that the applicant then directed MA to have anal sex with DN. DN said that MA seemed reluctant but the applicant told him "no, it's okay" and that MA had anal sex with DN (T 131.3-34) (this act is uncharged although the Crown notes that this bears a resemblance to MA's account of count 21). DN said that MA had anal sex with him until MA ejaculated (uncharged) and that the applicant then performed oral sex on DN until he (DN) ejaculated (T 131.32-34) (this is also uncharged).
3. DN did not recount any evidence relating to count 53 on his first account of the incident. Evidence in relation to count 53 was elicited by means of cross-examination following a grant of leave under s 38 of the Evidence Act. This was again done, at his Honour's direction, by refreshing the witness's memory with his statement (from T 148.5): Q. Does that assist you with after [MA] had engaged in anal intercourse with you, what further sexual acts occurred? A. Yes. Q. What was that? A. So [MA] proceeded to use his mouth to perform oral sex on myself. And Pat proceeded to make me ejaculate after [MA] finished. Q. How did he make you ejaculate? A. With his hand (count 53: aggravated indecent assault, s 61M(1)).
4. As noted, when they got back to the car, there was glass all over the seat as the back window of the car had been broken (T 131.49-50) and something had been stolen (T 132.1-4). This was reported to police on 22 November 1993.
5. There are unreasonable verdict challenges to the conviction on counts 51 to 53.

Counts 54, 55, 56 and 57 (Incident D13)

1. Incident D13 relates to an incident when DN was in about year 9; and the applicant's family moved to a house in Menai Road, Bangor (T 132.18-19). RMS records indicate that this was on or about 6 November 1992. DN went to stay the night at the applicant's home. The applicant's wife was away and his daughter was not there either. His son was there for a while but left. DN said that at about 7.30pm, the applicant received a phone call and they went and picked up MA from Sutherland (T 132.37-43).
2. DN's evidence is that the three returned to the applicant's home in Bangor, where they had some cannabis (T 133.47-50). DN said that the applicant said "come on, let's go down to the bedroom" and that he and the applicant went into the bedroom. DN said that MA said he would be there soon (T 134.48-49).
3. DN's evidence as to what took place inside the bedroom was as follows (from T 134.45) and formed the basis for counts 54 to 57: Q. What did you hear or see [MA] do? A. Okay. So we smoked marijuana, Pat said, "Come on, let's go down to the bedroom." And the two of us, me and Pat, proceeded to the bedroom. Where, you know, he started to play with my penis with his hand. And called out to [MA] to come down to the bedroom and he said something like, "I'll be there soon." Anyway, it progressed on a little bit and Pat followed the same routine as always. You know, tried to - he had oral sex with myself. Kept me to perform anal sex to him - you know, for him. This was probably one of the times where - where I had anal sex with him and I - I ejaculated. Q. When you anal sex with him, as in you were penetrating him? A. That's correct. Yeah. Q. And do you remember where in the room this was occurring? A. On - on his bed. Q. What, as far as the order of events as best you can recall, what happened when you got into the room and on the bed? A. So there was the, you know, him playing with me with his hand, I guess. And then his mouth. He'd get me erect with his mouth. Have me perform anal sex to himself. Which, you know, I basically tried to get over as quick as possible. And he proceeded to have anal sex with myself. Q. You've mentioned that he had oral intercourse with you on this occasion. A. Yes. Q. And that previously he'd tried to get you to have oral intercourse with him? A. Yeah. Q. Was there any attempt or oral intercourse on this occasion? A. I'm not a hundred per cent sure. That - it happened that many times. It may be - I can't say yes or no. Q. The three acts you've described, those are what you recall occurring in the bedroom-- A. Yes. Q. --on this day that [MA]was somewhere else in the house? A. Yes, that's correct. He was - he was in the lounge room. Or that's where I'd left him, anyway. Or we'd left him. Q. What happened as far as you've told us the acts, the last one was Mr Madden having anal intercourse with you. What happened then? A. So it was over, you know..(not transcribable)..and I, you know, it was late and I went to sleep. And woke up the next morning. I'm not sure what Pat had done after I went to sleep. Q. Where did you go to sleep? A. In that - in that bed, yeah. Q. Were any of the other family members around the next day? A. No. Q. Was there any discussion the next morning about what had occurred? A. When I walked out to the lounge room I'm - I think I came out to the lounge room first and then Pat must have came in and said, "So [MA] what happened to you last night?" And he said, "I fell asleep." Q. Did you stay at that Bangor residence or did you leave at some point? A. Did I go home? Q. Yes, how did you get home? A. Well I was probably dropped off by Pat or dropped at the train station. Q. So you've told us about the time in Bass Point with [MA]. A. Mm-hmm. Q. And then this time at the Menai Road address. A. Correct. Q. Did you have any other interactions with [MA]? A. No, it's the last time I saw him. Yeah. Q. That time in the park sort of area where there was a smash to the window and something was stolen. A. Yeah Q. Is that the only time you recall being in a park area with [MA]k? A. Yeah, the only - three times I've met [MA] in my life was that first time when I met him through Paul, Pat's son, the time at the Bass Point, and then that time at the Bangor residence.

Count 54: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 54 relates to the evidence that, once in the bedroom, the applicant performed fellatio on DN (T 134.50).

Count 56: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 56 relates to the evidence that the applicant then got DN to have anal sex with him (that is, DN penetrating the applicant) (T 135.1-2). DN had sex with the applicant until he ejaculated.

Count 57: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 57 relates to the evidence that the applicant then had anal sex with DN (T 135.15).

Count 55: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 55 was an allegation that DN had put his mouth on the applicant's penis. When first questioned about this subject matter, DN's evidence was equivocal (T 135) (see as extracted above), where DN said that he was not 100% sure whether there was any attempt of oral intercourse on this occasion, saying that "it happened that many times. It may be - I can't say yes or no" (T 135.24-25).
2. The evidence giving rise to count 55 was elicited in cross-examination following a grant of leave under s 38 of the Evidence Act (T 149.18-30): Q. You've told the jury before lunch about the accused performing oral intercourse on you. And two further allegations of anal intercourse. Does having read that assist your memory as to whether any other acts occurred on this day? A. There was the - so I'd performed anal sex on him. And he also - and I - oral sex on him as well. Q. How was it that you came to perform oral sex on him? A. So he pushed my - my head down onto his penis. And I was trying to push - and held my hands and then had me hold onto his penis with my hand. Q. Did his penis go into your mouth? A. Yes.
3. As noted above, the next morning the applicant asked MA "what happened to you last night" and he said he had fallen asleep (T 135.50). DN said that this was the last time he saw MA.

Counts 58 and 59 (Incident D14)

1. DN said that one other occasion that stuck out to him was the applicant's daughter's 18th birthday party (T 137.33).
2. DN's mother gave evidence about attending a party at the Bangor house, possibly for the 18th birthday (T 185.24-27). The applicant's daughter was born in November 1977 (T 205.38-39).
3. DN said he drank alcohol at the party and fell asleep in the loungeroom (T 138). During the night, the applicant fellated him and had anal sexual intercourse with him until he ejaculated (T 138.17). This formed the basis for counts 58 and 59.
4. There is no unreasonable verdict challenge to the convictions on counts 58 and 59.

Count 58: homosexual intercourse with male over 10 and under 18 (s 78K)

1. DN said that during the night, the applicant came into the lounge room and put his mouth on DN's penis (T 138.14-17). DN remembers that the applicant was drunk and was trying to kiss him, which made him sick (T 137.30-138.26). Count 58 is the act of fellatio.

Count 59: homosexual intercourse with male over 10 and under 18 (s 78K)

1. Count 59 is that the applicant then had anal sex with DN until he ejaculated (T 138.41).

Additional context evidence from DN

1. DN left school part way through year 10 and moved in with a girlfriend, at which point his contact with the applicant decreased and then stopped (T 136.37-137.16). He had some contact with him once again when he moved back in with his mother (T 137.18-24). During that period, the applicant sometimes stayed at DN's home. On those occasions, he would sleep in DN's room and, after everyone had gone to sleep, he would have sex with him (T 139.17-26). The sexual contact continued until DN moved out of home (T 139.28-34).

Complaint by DN

1. In 2000 (the year his daughter was born), DN told his then partner that something had happened to him (T 140.12-19; T 190.28-33). The same year, he also told a counsellor (T 140.45-49) (who made a record of a complaint of abuse by a family friend at an appointment in 2000: T 205.21-23). In 2001, he told his mother (T 141.9-11; T 186.20-28). DN went to the police in December 2016.

Cross-examination of DN

1. Cross-examination of DN comprised the following seven questions (T 149.36-150.11): Q. [DN], I want to put a number of propositions to you and see if you agree or disagree. I want to suggest to you that there was never an occasion when you and Patrick Madden indulged in any sexual activity. Do you agree or disagree? A. You suggest that there - it didn't happen at all? Q. Yes. A. I disagree. Q. Again I suggest to you that there never was an occasion where something of a sexual nature occurred with [BW] being present. A. So you're suggesting that that didn't happen either? Q. Yes. A. No, it did - I disagree. Q. Similarly I suggest to you that nothing of a sexual nature occurred between you, the boy [MA] and Patrick Madden at any time. A. I disagree with that. Q. I want to suggest to you that Mr Madden did not provide you with cannabis on any occasion. A. Disagree with that. Q. Nor did he provide you with alcohol, Strongbow, I think you've said. A. Disagree with that.

Evidence of applicant's son

1. The applicant's son gave evidence that RA was "constantly" at his house on Sunbury Street ("He was at our house more than I could say he wasn't at our house. He was always at our house… he was always downstairs hanging out with my dad") (T 169.34-35). The applicant's son was aware that they were smoking marijuana down there (T 169.48); he said that there was "always cannabis" in the house, which belonged to his father (T 170.3). The applicant's son said that RA and his father went fishing together "many times"; and he said that "all the time" it was just the two of them (T 170.10). The applicant's son said that MA was also "constantly" at the house but largely to visit him and not his father (T 170.25-26).
2. His evidence was that when the family moved to Kurrajong Street, RA and MA were still "constantly" there; and that there was also cannabis around at the second house (T 171.26-31).
3. The applicant's son also said that DN and his brother came to visit "on, you know, umpteen occasions" and that DN stayed over "heaps" (T 172.3-9); and that there were occasions when his father took DN fishing (T 172.12).
4. The applicant's son confirmed the applicant's prior employment on pilot boats, as security and as a private detective; and remembered the applicant taking people, including DN, to work with him (T 172.19-49). He also said that there were constantly film canisters around the house as his father used to keep cannabis seeds in them (T 173.3-5).

Evidence of RA's and MA's brother

1. RA and MA had a brother who also smoked marijuana in the garage under the Sunbury Street house with RA and the applicant (T 175-176). He said that RA would go the applicant's house "fairly regularly" (T 176.44) and that RA would go out to help the applicant on his boat "regularly" (T 177.17).

Evidence of AO

1. AO, a friend of RA, gave evidence about getting beer and marijuana from the applicant in his garage under the house when AO was 16 or 17. AO met the applicant through RA and drank beers and smoked cannabis with them "a handful of times". AO never saw any touching between the two (T 161.5). AO remembered that RA was frequently away and would say he had been with the applicant "fixing the boat or going fishing" (T 161.14-16).

Arrest and ERISP

1. The applicant was arrested first in relation to DN's allegations, after which he participated in an electronically recorded interview with the police (ERISP) on 7 December 2017 (see MFI 15). The applicant admitted knowing DN but (somewhat equivocally) denied having had a sexual relationship with DN ("not really, not a sexual relationship, no" (see MFI 15 at Q&A 40), saying that their relationship was "more fishing" (see MFI 15 at Q&A 42). The applicant accepts that his answers to several questions were somewhat equivocal, particularly as to whether he had ever supplied DN with alcohol or marijuana and in response to one of DN's allegations put to him by the interviewing officer (see, in particular, MFI 15 Q&A 37 to 39).
2. The applicant was arrested in respect of RA's and MA's allegations on 26 March 2018 but declined to participate in an ERISP on that occasion (T 196.33-35).

Evidence of the applicant

1. The applicant gave evidence on the morning of the fifth day of the trial (T 216-239).
2. The applicant's evidence was that he moved into Sunbury Street in 1985 (T 216.36-40); he then lived at Kurrajong Street and then in Menai Road, Bangor (T 217.15). The applicant worked with the Maritime Services Board from 1988 to 1992 and then as a private investigator (T 217.7-9). The applicant accepted that he had boats, that he used to go fishing, that he became friends with RA, MA and their brother, and that the boys used to do work on his boats, and that he took the boys fishing many times (T 217.45). The applicant did not recall taking RA or MA fishing on their own but accepted that it was possible (T 218.1-6).
3. The applicant accepted that he had a longstanding friendship with DN's family and that, after DN's father died, his mother would send him to his place to stay (he said for some discipline as DN was "quite an unruly boy") (T 218.8-13). The applicant accepted that he had taken DN fishing "many times" (T 218.16).
4. The applicant accepted that he used to smoke cannabis and that he would smoke it in the downstairs garage (his "recreation area" where he kept boating equipment and other stores) at Sunbury Street (T 218.24-27). The applicant denied giving cannabis to any of the boys and also denied giving them alcohol (but admitted that he might have smoked some cannabis with RA's and MA's brother once he was 18) (T 218.33-219.7; T 224.1-30). The applicant said that it is difficult to smoke on the boat as "your hands are always wet" and that he would never have had a candle on the boat as "an open flame is a no no in the marine industry" (T 218.46-219.31).
5. The applicant denied any sexual contact with any of the complainants (T 219.33-220.6). He accepted that there was a bottle shop (or a general shop that sold alcohol) near where his boat was moored and that he would regularly stop in there but he denied ever buying Strongbow there (T 226.26).
6. The applicant accepted that it was possible that he might have spent the night on the boat with a child but could recall no specific occasion (T 229.32). He said that DN was never alone on the boat with him (but also that it was possible but he could not recall) (T 238.28).
7. The applicant accepted that he had driven to Shellharbour and Woronora Bridge with DN (T 232.13-17).

The Crown Prosecutor's closing address

1. On the fourth day of the trial, following the completion of the balance of the Crown case, the Crown Prosecutor raised with the trial judge the way in which he intended to put his case to the jury on tendency (T 212.12): CROWN PROSECUTOR: So your Honour will see from the tendency notice it's essentially split up into two sections. The first is the cross-admissibility between the victims - complainants. And that being if they were satisfied that the tendency has been established in relation to one complainant, say a particular count. If they were satisfied beyond reasonable doubt they could use that tendency in two ways. First is considering whether that makes more likely the allegations by the other complainants, noting the similarities. And the second way is if they're satisfied in relation to one count, that the accused engaged in sexual acts with that particular complainant, they could use that as a tendency when considering the rest of the allegations for that particular complainant. So I think that's the way I'll put it. First the cross-admissibility point and then the second, that per complainant if you're satisfied he acted on a sexual interest in relation to them, you would consider that when you look at the other instances they particularly complain about. And I'll probably try to stick as best as I can to the tendency notice which I've relied on - I opened on and I understand it hasn't been contested.
2. No issue was taken by the applicant's trial counsel or the trial judge about the Crown Prosecutor's stated position.
3. The Crown in closing submitted that the applicant had a tendency to be sexually attracted to young males and to befriend young males, take them fishing, supply them with cannabis and alcohol, and then act on his sexual attraction by engaging in a sexual act with them (T 270.29-38). The Crown relied on tendency reasoning both as between the various complainants and also on an 'intra' complainant basis (T 212). There was no opposition to the Crown's reliance on tendency reasoning.
4. The Crown Prosecutor's address took the jury through the Crown case in relation to each count on the indictment (T 240-270); then addressed the jury on the tendency case as follows (from T 270.22): … The fourth topic is the tendency. You've heard from the two officers-in- charge. You might think they did their best to ensure that these investigations and complainants were kept separate, no chance of them putting their heads together. There's no suggestion that they have. So you've got those two groups. But [DN], it seems, has never put his head together with the [As] about what the accused was doing. Now, from those four witnesses, the Crown says a pretty clear tendency emerges of how the accused operates at the relevant time: that he's clearly sexually attracted to males between 12 and 18, just looking at the number of acts he engages in; that he befriends a young male who has a connection to his family, a family friend, or friends of the son; that he then invites this young male to go fishing, seems to be how it always starts, this invitation to go fishing; provides these young males with alcohol and/or cannabis, and it seems to be, before the first time he does anything to these young males, each of them, they're provided alcohol and cannabis. Same tendency to act for all of them. Once they've had some alcohol and cannabis, he acts on his sexual attraction, and he engages them in a sexual act. Again, it doesn't always have to be the same, but once they're under the influence, he starts to act on his sexual attraction. He then after, with all of them except [BW], who it only happens to once, but the other three, then continues to get them by themselves, over the sort of years after that, and then continues to act on his sexual attraction with these young males. Again, it might involve alcohol and cannabis, but he's already laid that groundwork with the fishing trip at the start. So if you accept, as the Crown says you overwhelmingly will, that the accused had that tendency to act around young males, you might find it makes it significantly more likely that each complainant is telling the truth when they describe what Mr Madden did to them. Your deliberations are a matter for you and you don't have to take on board anything I say. But this will be the one thing I'd tell you when you look at this massive 59 count indictment. We'll start with [DN]. In the Crown's view, and that's nothing against the [As] who were, the Crown says, compelling witnesses, but [DN] stands by himself. He doesn't have a brother that he might have talked to. He's a complainant in his own right. He got upset, he was honest, he made concessions. So start with his counts. Assume just from that, you're satisfied with his tendency, with the way he acts with [DN]. Then consider [RA] and [MA]. What they tell me is very similar to how [DN] said he acted. You might think, well, I think that helps me determine whether [RA] and [MA] are telling me the truth about what Mr Madden did to them. You can start with [RA] or [MA] if you want and then work towards [DN], but I think it may assist if you start with someone who there's no chance he's put his head together with anyone. Maybe if you had [RA] by himself, or [MA] with himself and you were just relying on what he told you, you might have to make some assessments. I mean [RA], as you've heard, had a brain injury and there's a lot of cannabis going about during these alleged acts. It's a long time since it occurred. That's why you're hearing all these people together so the Crown says you rely on a tendency. The way that Mr Madden acts for each of them, you don't just divide them up separately and consider them separately if you find that tendency exists. The Crown says they're all telling the same story about how Mr Madden operated, because they're all telling you the truth. [Emphasis as per applicant's submissions]

The applicant's trial counsel's closing address

1. The applicant's trial counsel's address to the jury was as follows (T 273.14-274.1): Ladies and gentlemen of the jury, before last Tuesday, you were all going on about your own business but on Tuesday, you got empanelled as jurors for this case. As jurors, you are the judges of the facts of this case. It falls to you to decide what happened. The law demands a higher burden of the prosecution to prove any one of these charges. The law says the Crown must prove to your satisfaction beyond reasonable doubt if you are to return a verdict of guilty on any one of those 55 counts in the indictment. There is no burden cast on Mr Madden, but he gave evidence before you today. You'd take his evidence like that of any other witness in this case. Obviously, if you accept his evidence, then you must return verdicts of not guilty. Even if you're not sure of what he said, you must return verdicts of not guilty because the Crown had not proved the charges against Mr Madden beyond reasonable doubt. On the other hand, if you reject his evidence completely, then as the learned Crown Prosecutor said, you put his evidence to one side, and look at the prosecution evidence. And dare I say to you, look at the prosecution evidence fairly, and dispassionately. But by giving evidence, Mr Madden has not assumed any burden of either proving or disproving the charges against him. You might recall that in relation to the [DN's] allegation, he took part in an interview with the police, and he gave some answers that you may think on balance - on reflection - perhaps weren't as strong in his denials as you might have expected him to have been. This morning, he explained what he meant by those answers. In the face of such sexual allegations, what is a man to say in response? Is it enough to say "It didn't happen" or "I didn't do it"? What is he to do? He went in the witness box, opened himself to your scrutiny and said "I didn't not (as said) do any of these things alleged by the [A] brothers, [DN] or by [BW]." He denied giving the young men cannabis or alcohol. You, ladies and gentlemen, come into this courtroom with your widely differing experiences of life. You sit here in judgment over Mr Madden; you are in the best position to assess all of the evidence in this case and there say that Mr Madden's denials and his evidence are strong; that he did not do any of the acts alleged against him of a sexual nature in respect of any one of these four boys in the indictment. Thank you, ladies and gentlemen.

The trial judge's directions

1. The trial judge commenced his directions to the jury immediately following the respective addresses of counsel. The trial judge directed the jury that ranges of dates particularised by the Crown on the indictment was a matter that the Crown was required to prove beyond reasonable doubt (SU 3): Now the Crown has referred you during the course of his submissions to, for example, a date and how the date was fixed in regard to or the range of dates was fixed in regard to each charge. Look that is often a situation where especially in cases where the offences are somewhat historic that a person is unable to give a specific date as to when something occurred, but they can give a range of dates by reference to something else and the Crown is drawing your attention to those. Now that still means though that even though the range of dates might be between 1 January and 31 December, you still have to be satisfied beyond reasonable doubt that it was within that period and that particular year or it might be a period of years. If you think it might have happened but not at that time well you must find the accused not guilty because that is an essential part.
2. In relation to the Crown's tendency case, the trial judge said (SU 7-8): Now when you are looking at a number of charges like this you do not have to look at them all in isolation. You do not go there is one, that is one, that has been done, that one has been done, this one - you do not go through it like that, you are entitled to look at the evidence as a whole and in some respects that is where this issue of tendency evidence that you have heard about comes into play. Because what the Crown wants to suggest to you, and I will give you a written document about this, is that when you are looking at the evidence as a whole if you are satisfied and accepting all or some of the complainants who have given evidence, that that would tend to establish beyond reasonable doubt a number of features that the Crown says establishes a tendency to behave in a particular way. That is, this is just some of them, to be sexually attracted to young males between the ages of 12 and 18, to invite that young male to go fishing, provide the young male with alcohol or cannabis, act on a sexual attraction by engaging sexual act, et cetera, et cetera. Now what the Crown says is that if you are satisfied that some of these counts have been established beyond reasonable doubt then that will be enough for you to be satisfied beyond reasonable doubt that the accused did in fact have the tendency that is being suggested by the Crown. The first thing you have to do is to be satisfied beyond reasonable doubt one or more of these acts actually occurred. If you cannot be satisfied beyond reasonable doubt about that well you do not worry about tendency evidence at all. If you do find that some of these acts have been established beyond reasonable doubt then you go on to consider is there sufficient material before us to be satisfied beyond reasonable doubt that we can draw and inference [sic] that the accused has the tendencies that the Crown alleges he has. The fact that if someone you might be satisfied beyond reasonable doubt has a tendency to behave in a certain way, must as a matter of logic you would think not be able to prove beyond reasonable doubt whether any particular offence has been committed because you have got to look at each offence singularly and individually to see whether the evidence stacks up in each particular case and you cannot argue well he has got the tendency therefore he must have done that particular count. You cannot use that evidence that way. What the Crown says is that if you are satisfied that the Crown has established these tendencies, then that makes it more likely that the complainants who have made various allegations at different times are likely to be telling the truth. So tendency evidence does not replace evidence of proof beyond reasonable doubt, but it may allow you and it is up to you to determine whether or not that tendencies [sic] has even been established. It is up to you to determine what value you place upon those tendencies having been proved, whether you think it is a factor that enables you then to go on and say well we are satisfied he does have these tendencies and that makes it easier to accept what X says, or Y says or Z says.

Ground 1: The prosecution of counts 20, 23, 24, 43, 44 and 45 was statute-barred pursuant to ss 78 and 78T of the Crimes Act (now repealed)

1. It is contended by the applicant that the prosecution of the offences alleged by each of counts 20 (part of incident M4), 23 and 24 (incident M5) (relating to MA) was statute-barred pursuant to s 78T of the Crimes Act (which provisions are now repealed) and the prosecution of each of counts 43, 44 and 45 (incident D8, relating to DN) was statute-barred pursuant to s 78 of the Crimes Act. As noted, ground 1 is conceded by the Crown in relation to counts 20, 23 and 24 because the repeal of s 78T was not retrospective. The Court should act on the Crown concession and quash the convictions on those counts for that reason.
2. It is only therefore necessary to consider this ground in relation to counts 43, 44 and 45 (incident D8 - see above from [161]). The Crown maintains that counts 43, 44 and 45 were not statute-barred because the repeal of s 78 was made retrospective by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
3. Counts 43 to 45 alleged that, between 1 January 1992 and 31 December 1993, the applicant had sexual intercourse with DN, a child then under above the age of 10 years and under the age of 16 years (namely 14 or 15 years), contrary to s 66C(1) of the Crimes Act. This was on the basis of DN's evidence that the incident giving rise to counts 43, 44 and 45 occurred no longer than 12 months after the BW incident (T 118) and when the applicant was living at the Kurrajong Street house (T 118-119). DN's evidence was that the BW incident occurred when DN was in year 8, in 1992 (T 113; T 206) (T 263). As noted above, RMS records showed that the Kurrajong Street house was the applicant's registered address from 25 March 1991 to 5 November 1992. The Crown says that this pointed to this incident most likely occurring in 1992, after the BW incident (T 263). However, the particulars extended to the end of 1993. During the time frame averred, DN was 13 to 15 years old. It is noted that if the incident occurred while the applicant was still living in Kurrajong Street, then it must have occurred before 5 November 1992, before DN turned 14.
4. The prosecution of each of these counts commenced during the first half of 2018. On 12 July 2018, each of the counts the subject of challenge under this ground was before the Local Court by way of a Court Attendance Notice.

Determination

1. In Rodway, the High Court considered the effect of the repeal of s 136(1) of the Criminal Code (Tas) and the enactment of a new s 136(1), both of which occurred after the applicant had been charged with offences to which s 136 applied but before his trial commenced. The High Court held that the new provision applied to the applicant's trial on the basis that the amendment did not affect existing rights and obligations but, rather, operated to affect the way in which rights fell to be determined at trial, and thus did not fall within the presumption against retrospective operation of a statute (at common law or under statute). Relevantly, the High Court said (at 518): The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. […] A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. [My emphasis]
2. The High Court went on to say (at 519): Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural.

Ground 2: The verdicts of guilty on counts 1, 2, 3, 8, 10, 12, 20, 21, 22, 34, 35, 36, 37, 38, 44, 46, 47, 51, 52, 53, 54, 55, 56 and 57 were not supported by the evidence and are unreasonable

Applicable principles

1. There is no dispute as to the applicable principles where it is contended that a verdict is unreasonable.
2. The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (MFA v R); SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA v R) at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was).
3. In Libke v R (2007) 230 CLR 599; [2007] HCA 30 the High Court expressed the test as being whether it was "open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt" (emphasis in original).
4. More recently, in Pell v R (2020) 268 CLR 123; [2020] HCA 12 at [37]-[39] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ, the High Court said that these tests are essentially the same (at [45]).
5. The appellate court must undertake its own independent assessment of the evidence (M v R; SKA v R), though having regard to "the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence" and that the jury had the benefit of seeing and hearing the witnesses give evidence (M v R at 493 per Mason CJ, Deane, Dawson and Toohey JJ ; MFA v R at [49] per McHugh, Gummow and Kirby JJ).
6. The Crown notes that the High Court has emphasised the deference that must be accorded to the jury's verdict, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] per French CJ, Kiefel J, as her Honour then was, Bell, Keane and Gordon JJ).

Counts in respect of which Ground 2 is raised

1. The applicant contends that the following convictions were not supported by the evidence and are unreasonable: 1. in respect of RA, counts 1, 2 and 3 (incident R1); counts 8 and 10 (incident R2); and count 12 (incident R3); 2. in respect of MA, counts 20, 21 and 22 (incident M4) (I note in this context that the convictions for count 20 is to be quashed on the basis that the prosecution for this offence was statute-barred); and 3. in respect of DN, counts 34 and 35 (incident D 4); counts 36 and 37 (incident D 5); count 38 (incident D 6); count 44 (incident D 8); counts 46 and 47 (incident D 9); counts 51 to 53 (incident D 12); and counts 54 to 57 (incident D 13).
2. The Crown groups the applicant's contentions under Ground 2 into four broad categories: first, a contention that the evidence did not establish that the offending happened within the dates averred on the indictment (counts 1, 2 and 3); second, a contention that, where evidence was elicited only after showing a witness their statement following a grant of leave under s 38 of the Evidence Act, the jury must have entertained a doubt about that evidence (counts 8, 10, 12, 22, 38, 44, 55); third, a contention that the evidence of DN and MA was incapable of being reconciled, leading to the conclusion that the evidence of each relating to an incident or incidents involving the other was incapable of acceptance beyond a reasonable doubt (counts 20, 21, 22, 51, 52, 53, 54, 55, 56, 57); and, fourth, a contention that the evidence was insufficiently particular to found the charges (counts 34, 35, 36, 37, 46, 47, 56).
3. As a general matter, as to the contention by the applicant that (where evidence was elicited after the witness' memory was refreshed by reference to his earlier police statement) the jury was bound to have a doubt (pointing to the fact that the statements used to refresh memory were made many years after the events in question), the Crown says that it was open to the jury to accept that what the complainants had put in their statements, made without the pressure of being in the witness box, was reliable. In this regard, it is submitted that the jury was entitled to bring into account the context evidence given by each of the complainants. The Crown emphasises that all three complainants had been abused on multiple occasions over many years and it was open to the jury to accept that in those circumstances, it was unsurprising that they might suffer memory blanks or become confused when giving evidence.

Applicant's submissions

1. The applicant points out that the Crown alleged that the first incident (R1), occurred some time between 1 February 1987 and 31 March 1988, which (on the Crown case) meant that the complainant RA was either in year 9 at school or had left school at the time that it occurred (cf, RA's evidence that it was probably year 7 or year 8 when the applicant's son told him about the marijuana plants - T 35.10).
2. The applicant notes that the Crown case was that incident R1 was "the first time" the applicant ever took RA fishing and that this was the first occasion the applicant committed a sexual act upon him. RA said that following this "first time" it was "the same process on and on … his boat, on water, at his place, in the car" (T 43).
3. It is noted that RA said that the "first time" that he was asked by the applicant to go fishing was on or about the "first time I met him" which he said was when he was either in year 7 or year 8; that RA said that he was either 13 or 14 years old. It is not in dispute that RA turned 13 on 29 December 1985 and 14 on 29 December 1986. When asked directly how old he was "at that stage that this was happening" (a reference in context to R1), RA said he was "about 14".
4. The applicant argues that it is difficult to determine whether "the first time" RA went fishing with the applicant was on or after 1 February 1987 (when he had turned 14 and was in year 9 at school), or whether "the first time" he went fishing with the applicant was before that date (when he was 13 and in year 8). The applicant submits that it is inherently unlikely that, after initially meeting the applicant some time before 1 February 1987 (on RA's account that this was in year 8 or year 9), the applicant would not have taken RA fishing soon thereafter.
5. The applicant argues that the evidence adduced in the Crown case in relation to when incident R1 occurred left open the reasonable possibility that the incident did not occur between the dates alleged on the indictment. It is noted that, unlike in relation to other counts on the indictment (see for example count 16), the Crown Prosecutor made no application to amend the dates alleged in respect of counts 1, 2 or 3.
6. Emphasis is placed on the fact that, in closing address, the Crown Prosecutor accepted that each time frame alleged on the indictment was "something the Crown has to prove" (T 241.8); and that the Crown raised no complaint or sought any further direction when the trial judge directed the jury both orally and by written direction (see MFI 22) that in relation to counts 1, 2 and 3 (like all other counts) the jury needed to be satisfied beyond reasonable doubt that the incident R1 occurred between the dates alleged.

Crown's submissions

1. The Crown says that the dates on the indictment (between 1 February 1987 and 31 March 1988) were consistent with RA's evidence that he was "about 14" when the incident occurred and also that the sexual contact began before he left school in 1989 (T 43). It is noted that RA turned 14 on 29 December 1986 and therefore that the time period averred covered most of the year that he was 14 but extended into his fifteenth year.
2. Insofar as the applicant submits that, on RA's evidence, the incident giving rise to these counts could have occurred as far back as 29 December 1985 (when RA turned 13), the Crown says that it is not reasonably possible that RA could have met the applicant before 1987 pointing to the RMS records that record that the Sunbury Street property did not become the applicant's registered address until 10 April 1987 (Ex 1).
3. The Crown says that commencing the date at February allowed for the possibility of some delay between the applicant moving into the house and registering his new address (as to which see T 201-2). However, it is said that that time could be expected to be measured in weeks or some short months. It is said that RA's father's recollection that the applicant had been living there for "a couple of years" prior to 1988 cannot be correct in light of the RMS records. Thus, the Crown submits that the RMS records reveal that it is not reasonably possible that counts 1 to 3 occurred prior to 1 February 1987. (The applicant's response to this submission is that the RMS records in evidence did not go back before 10 April 1987; and says that an RMS record is not a definitive answer to when the applicant was living in the Sunbury Street property.)
4. Moreover, even if it were possible that the incident occurred prior to 1 February 1987, and notwithstanding what his Honour told the jury (at SU 3), the Crown says that this was not a case where time was of the essence (referring to R v Dossi (1918) 13 Cr App R 158 (R v Dossi)). As to the submission by the Crown that this was not a case where time was of the essence, the applicant argues that the case was conducted by the Crown on the basis that the Crown accepted the jury must be satisfied beyond reasonable doubt that the incident R1 occurred during the times averred in the indictment and should be bound by its conduct of the case on that basis (see T 3 on the appeal).

Determination

1. Section 16(1)(g) of the Criminal Procedure Act 1986 (NSW) provides that an indictment is not void for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, "except where time is an essential ingredient". This provision is consistent with the common law rule as articulated by Atkin J in R v Dossi: From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. . . It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment.
2. I have concluded that time was made an essential ingredient in respect of counts 1,2 and 3 as a result of the way in which the Crown conducted the trial. In the Crown Prosecutor's closing address, it was said that the time frame on the indictment and the evidence about when certain things happened was a "key thing" and the Crown Prosecutor noted that "his Honour said that's something the Crown has to prove" (T 241.6-9; see also T 241.15ff). This conduct is consistent with the fact that the Crown Prosecutor did not object to the trial judge's summing up, in which the timing was said to be an essential element of the offence (see SU p 3). I accept the applicant's submission that the Crown cannot resile from this course of conduct and is bound by it. In this respect, the observations of Ostler J (with whom Reed, Adams and Smith JJ agreed) at 440 in R v Dean [1932] NZLR 753 are apposite: In this case the dates specified in the indictment in the last three counts had become an essential part of the offences charged therein. The times had been made of the essence of the offences by the evidence. Where a female makes a criminal sexual charge against a male, but cannot recall the exact date of the alleged offence, although a date should be specified in the indictment, and although it is the duty of the Crown to ascertain and state that date as exactly as possible, then the rule [in R v Dossi] applies, and (if the charge is laid within nine months) the exact date is not an essential part of the offence, even though the exact date has been specified in the indictment. But whether the charge in such an indictment is laid on an exact date or "on or about" a date, where the whole of the evidence is that the offence was committed on that date and on no other, then the date has been made an essential part of the offence. … If that were not the law, then an innocent man who, relying on the exact date sworn to by the prosecutrix, had brought evidence proving beyond all doubt that he was elsewhere on that date would be liable to be convicted notwithstanding such proof, and although deprived of the opportunity of proving an alibi on any other date on which the jury might be invited to hold that the offence was committed. Such a rule of law would be not only contrary to the spirit of the criminal law, under which innocence is presumed until the contrary is proved beyond reasonable doubt, but it would be most dangerous. It might easily cause the wrongful conviction on a disgraceful charge of an innocent man. [my emphasis]

Applicant's submissions

1. As to counts 8 and 10, the applicant places reliance on the fact that when RA gave his account of incident R2 he referred only to the sexual acts relied on by the Crown as proof of counts 4, 5, 6, 7 and 9 (see above, these being the counts involving the incident with the insertion of a candle in RA's anus). The applicant does not challenge as unreasonable his convictions in respect of those counts. However, the applicant does challenge on this basis the convictions for count 8 (being the allegation that the applicant had, in addition, attempted anally to penetrate him with his penis) and count 10 (being the allegation that the applicant fellated him a third time until he ejaculated).
2. It is noted that RA's evidence (prior to his reference to the earlier police statement) was that the applicant only ever tried anally to penetrate him "once" and that this attempt took place "in his room in his house"; whereas incident R2 was alleged to have taken place on a boat in Gymea Bay.
3. The applicant says that RA's further evidence (when cross-examined by the Crown in relation to what he had said in his police statement about the sexual acts constituting counts 8 and 10 RA) was adversely affected by the following matters.
4. First, that even after having read his earlier statement, RA initially effectively said that his memory of the incident had not been refreshed. Second, that the statement to which he had regard was not a contemporaneous statement (but was prepared approximately 20 years after the fact). Third, that the further evidence that RA did give as to counts 8 and 10 was directly contradicted by the evidence he had just given about the incident; and that his further evidence that the only time the applicant attempted anally to penetrate him with his penis was in a different location entirely. The applicant says that there was no suggestion that in the "20, 30 or 40 times" that the applicant said he had engaged in sexual acts with RA prior to the R2 incident had there ever been an attempt anally to penetrate him; and that this was the first allegation of that type on RA's account.
5. Thus, it is submitted that the jury ought to have entertained a reasonable doubt as to proof of the applicant's guilt in respect of counts 8 and 10.

Crown's submissions

1. As to counts 8 and 10, the Crown points to the detail given by RA in his further evidence as to the applicant's attempt at penile/anal penetration (count 8); and as to the oral sex (count 10) (see as extracted earlier above). It is submitted that, having regard to the detail that RA gave and the fact that he gave the evidence from his memory rather than reading out his statement, it was open to the jury to accept that this was a genuine memory.
2. Further, it is noted that RA had already indicated in his evidence in chief that there had been an attempt at anal sex (see at T 44.15-20), only he said that it had occurred at the house. It is submitted that it was open to the jury to find that RA had misremembered only the location of the act (and that this was a relatively minor detail).

Determination

1. I do not consider that the jury ought to have entertained a reasonable doubt as to counts 8 and 10 owing to the manner in which this evidence was elicited. Insofar as the applicant points to the inconsistency in RA's answers as to whether his memory had been refreshed and then whether it had been helped by reference to the earlier police statement, as I have explained above I consider that it was open to the jury to treat this as explicable by reference to the different way in which the questions were framed (noting that RA was a witness who had suffered a brain injury in an earlier car accident and does not appear to have been particularly articulate in his answers in the witness box).
2. As to the fact that the police statement was itself many years after the event, that goes to the weight that the jury was able to attach to the evidence based on his memory having thereby been assisted - and that was a matter about which the trial judge had given directions to the jury.
3. Particularly relevant is the detail that RA provided in relation to the attempted anal penetration (and, of course, the jury had the advantage of seeing and hearing that evidence being given by RA).
4. As to the fact that the location of the attempted anal penetration (the incident on the boat) was inconsistent with the earlier evidence (I think it was in his room in his house - T 44.15), the latter was in itself not firm evidence of location. I consider that it was open to the jury to accept that RA had misremembered the location but that there had been an attempt at anal penetration in this incident.
5. As to the third act of fellatio, I accept the submission for the Crown that in the context of multiple acts of sexual offending, it was open to the jury to conclude that RA had simply forgotten in the stress of giving evidence in court the exact sequence of events on this occasion or how many times there had been acts of fellatio.
6. I find that Ground 2 is not made good in relation to counts 8 and 10.

Applicant's submissions

1. As to count 12, the applicant points out that when RA was initially asked whether he had ever engaged in anal intercourse with the applicant - see above and at T 48.12 (as distinct from his evidence of an attempt on one occasion by the applicant to engage in anal intercourse with him), RA's evidence was that he did not think this occurred and that he had no recollection of it occurring. The applicant notes that RA's evidence in this respect stands in stark contrast to what he later said after being shown his police statement by the Crown, when RA gave further evidence by reference to his police statement of an occasion in the applicant's home when he said he did engage in anal intercourse with the applicant.
2. The applicant says that RA's evidence in this respect suffers from the same deficiencies identified in respect of counts 8 and 10 and that the jury ought to have entertained a reasonable doubt as to proof of the applicant's guilt in respect of count 12.

Crown's submissions

1. The Crown points to the evidence as to count 12 that was elicited under cross-examination (T 57) (extracted above) and emphasises that in the course of that further evidence RA gave a detailed account (without reading out his statement or being led) including with a physical demonstration of how he said the applicant reached behind and put his (RA's) penis in the applicant's anus.
2. Further, the Crown points to RA's evidence that he had an actual memory "now" in court as to that event. In these circumstances, the Crown says that it was open to the jury to accept this evidence as being evidence of a genuine memory.

Determination

1. Again, this seems to me to be ultimately a credibility issue for the jury to determine; particularly the significance to be attributed to the physical demonstration. I do not consider that the verdict on this count was unreasonable.

MA

1. Turning then to the unreasonable verdict challenges to the convictions on counts relating to MA, the only counts are counts 20-22 relating to incident M4.

Counts 20-22

1. As noted above, these counts related to the first occasion that MA described when he said that he and the applicant picked up DN from Wollongong and drove into the Royal National Park. The sexual acts alleged by these counts were MA inserting his penis into the applicant's anus (count 20), the applicant inciting MA to insert his penis into DN's anus (count 21) and the applicant inserting a finger into MA's anus (count 22).

Applicant's submissions

1. As to these counts, the issue principally raised by the applicant is that MA's evidence was contradicted by DN's evidence.
2. It will be recalled that, as set out earlier, on MA's account, this incident occurred in either 1990 or during 1991 (when he was in around year 8 or year 9) whereas the Crown case in relation to DN was that the first time that he engaged in sexual acts with the applicant together with MA was on 22 November 1993 at Bass Point in Shellharbour (on the day that the applicant's car was damaged). The date on which the applicant's car was damaged was able to be ascertained from the police report (and this was the basis on which the indictment specified that particular date).
3. Both MA and DN gave evidence as to what occurred on the day that the applicant's car was damaged at Bass Point but there are significant differences in their accounts.
4. MA said that this was the second occasion on which he and DN had engaged in sexual acts with the applicant in the national park (the first being the subject of counts 20 and 21); and described that day as "oral sex day"; but that the three were disturbed when someone "came along" and there was panic and the sexual activity then stopped. On MA's account, when the three returned to the applicant's car it had been damaged. It is noted that in his evidence MA clearly distinguished between these two occasions and said the two occasions were years apart. MA did not suggest that there was anal sex on the second of those occasions (that being the day on which the applicant's car was damaged).
5. DN's evidence was that, on the day the applicant's car was damaged, in addition to oral sex, the applicant had anal intercourse with him and ejaculated inside him, that the applicant directed MA to have anal intercourse with him and ejaculated inside him, and that the applicant fellated DN until he ejaculated. DN did not say that the three were disturbed.
6. Significantly, DN gave evidence of only having been in the bush with the applicant and MA on one occasion. On DN's account, he had been introduced to MA before this incident (i.e., incident D12 in the case relating to DN) but only briefly. DN knew that MA was a friend of the applicant's son but his evidence was that he had not previously engaged in sexual activity with him or in his presence. DN gave evidence of a subsequent occasion at the applicant's home in Bangor when he said MA was also present (but MA did not give evidence of any such occasion). It is noted that DN said that: … the only - three times I've met [MA] in my life was that first time when I met him through Paul, Pat's son, the time at the Bass Point, and then that time at the Bangor residence.

Crown's submissions

1. The Crown points to the further evidence that MA gave after being shown his statement, which supported count 22, (at T 87-88) (see as extracted earlier).
2. The Crown emphasises that this evidence was elicited from MA himself (not by MA reading the statement or being led); and says that it was detailed and included a memory of MA's violent reaction to feeling the applicant's finger being inserted into his anus. The Crown argues that it was open to the jury to accept this evidence.
3. As to the inconsistency between DN's and MA's evidence of an incident or incidents involving the other, the Crown accepts (as could hardly be denied) that their evidence is not easily reconciled. It is noted that the Crown Prosecutor suggested to the jury in closing that "one of the biggest tasks for you as finders of the fact" would be "working out what happened between [MA] and [DN]" (T 253).
4. The Crown accepts that DN did not corroborate MA as to the incident the subject of counts 20, 21 and 22. However, the Crown submits that it was open to the jury to assess their evidence in light of the context evidence given by each of them, noting that (on their evidence) both DN and MA were abused on multiple and regular occasions over a protracted period of time, particularly DN. In that context, the Crown submits that it was open to the jury to accept that DN had forgotten about the incident giving rise to counts 20, 21 and 22.

Determination

1. The difficulty in reconciling the evidence of MA and DN as to the incident (or incidents) in the National Park is acute (as the Crown appears fairly to acknowledge); and relevantly both versions cannot be correct but the jury convicted on both the counts in relation to incident M4 and the counts in relation to incident D12. In other words, if the jury accepted MA's account in relation to the two incidents, it is difficult to see how they could consistently have convicted on DN's inconsistent account of what happened on the occasion of the damaged car (and vice versa).
2. DN recalled only one occasion when he and MA were taken to the Royal National Park by the applicant (that occasion being when the car was damaged in 1993). MA accepted that he was there on that occasion but he says that this was the second occasion on which the three went to the national park. Even if the jury simply reasoned that DN had forgotten the earlier occasion, that does not assist in reconciling the different accounts of what occurred in 1993. Moreover, DN's account of what occurred in 1993 (anal sex) is inconsistent with MA's evidence that it was oral sex day; and with MA's evidence that, by 1991, the abuse by the applicant of him had ceased. By 1991, MA would have been 17 years old.
3. Certainly, both MA and DN gave evidence to the effect that there was an occasion on which the applicant incited MA anally to penetrate DN; and that MA did so (an event that one would think both MA and DN would not readily have forgotten, particularly since they did not know each other well - at whatever time the incident occurred). It would be understandable if there were some gaps in recollection of particular incidents (especially where on DN's evidence there were multiple such events). However, the anal sex incidents involving MA and DN were hardly part of the run of the mill "as usual" process that was described by the various complainants. Even accepting that DN gave evidence of many occasions of anal penetration, he did not give evidence of multiple occasions involving MA (indeed he only gave evidence of one occasion when MA was said to have participated - and there was reason to believe that this occasion would have stood out in DN's memory because it coincided with the damage to the applicant's car).
4. I am left to conclude that although the jury could have had no reasonable doubt that an incident involving anal penetration by MA of DN (at the applicant's incitement) did indeed occur, they ought to have had a reasonable doubt as to when it occurred; and, if they accepted that it occurred in 1993 (which is a date within the dates on the indictment for counts 20 to 22), then it should have cast doubt on MA's account of the earlier incident the subject of counts 20 to 22 (and vice versa).

DN

1. Turning then to the challenges to the convictions on counts relating to DN, I note that there is a submission in relation to a number of these counts as to the generalised nature in which DN gave his evidence in support of a number of the grounds (to which the Crown has responded as noted already).

Applicant's submissions

1. The applicant's submission in relation to these two counts goes to the generalised nature of the evidence relied upon in support of these grounds, it being described as a particularity point consistent with the decision in RD v R (see below).
2. The applicant notes that DN's evidence in respect of counts 34 and 35 was prefaced by him saying that, during 1991, there was sexual contact with the applicant on "numerous" occasions either while fishing, at the applicant's home or when the applicant would drive him somewhere. The applicant points out that DN's evidence was not that the applicant took him to the national park on one single occasion but that DN said that one of the places the applicant drove him first was the "national park" and that DN's evidence was to the effect that "we'd go to the national park" and that he went to the national park with the applicant on "numerous" occasions. It is said that DN described the "general routine" of what "would" occur on these occasions, including the applicant "having his hands on my penis … The oral sex and then him, you know, having anal sex with myself".
3. The applicant emphasises the following aspects (as italicised below) of the evidence given by DN about the incident which was the subject of counts 34 and 35 (DN having said that there were times when the applicant took him to a particular spot called Bush Rangers Point near the same sandbar from which they would fish when on the applicant's boat; and that on these occasions the applicant produced the same picnic blanket that he had produced during the Albury incident) (see as extracted at [139] above).
4. First, the applicant points to the evidence that preceded the passage extracted at [139] above: Q. Perhaps I'll ask you. This picnic blanket, whereabouts were you when that was produced? A. So we'd been fishing, and we'd come back from the fishing and put the fishing rods back in the car. He produced the picnic blanket, and we produced to lie down on the blanket. We'd lie down there and have the same way. I would lie down there, he would put his hands on my penis and start to perform oral sex. He'd often try and, you know, attempt to get me to do. I remember it just would make me gag straightaway when he'd just shove it in my mouth, yeah. Q. Perhaps I'll ask you if you - do you remember the first time that you went to this park and the picnic blanket was produced? A. So we'd been fishing for some - we drove to the track. We walked down, pumped the yabbies. We came back and got back to the top of the ledge. I think Pat had actually left the fishing bag and the blanket there at the top of the rock. So when we came back to the top spot off to the side there, he laid that blanket out and, you know-- Q. This was the same blanket that had been used previously in Albury? A. Same blanket. As long as I can remember him - and even after, even when he had the other vehicles, the blanket was present in the car. Q. You don't recall how soon after Albury it was that this blanket was produced in the park for the next-- A. It was at Albury that he produced the blanket originally at that first spot. Q. How soon after that was this next occasion when you saw the blanket in the national park? A. Within the next four to six months maybe, somewhere around there. Q. And on this occasion you laid it down, was it close to the car or far away from the car? A. The car was back a fair way. You had to walk down this track for about how long is that walk in? So the walk in is probably five minutes, something like that, from the car.

Crown's submissions

1. As to counts 34 and 35, the Crown accepts that some of DN's answers are, to some extent, generalised, but argues that it was clear overall that he was recounting a single incident (which happened to bear the same hallmarks as many other incidents). It is noted that the occasion giving rise to counts 34 and 35 was particularised by the following circumstances: it was the first time DN and the applicant went down to Bushrangers Bay (T 107); and it occurred within 4 to 6 months of the Albury incident and it was the next time that DN saw the picnic blanket after the Albury incident (T 107).

Determination

1. The applicant accepted in the course of submissions that, if there is something or some feature about an event that can distinguish it then use of the language "would" or "used to" or the like may not matter much. However, his submission was that there was a deficiency between the use of generalised language in the present case and the specific events the subject of the charges.
2. I consider that, read as a whole, DN had a tendency to phrase his answers in the way criticised by the applicant but that, at least in relation to counts 34 and 35, DN was referring to a specific incident and the tenor of his evidence was that on that particular occasion the same thing that had happened on numerous other occasions happened here. There are pointers in his evidence to indicate that this was a memory of a specific event - so, for example, that "he had me lie down then started playing with my penis" is speaking to a particular event before DN moved to the more generalised "his hand would soon be down my pants …" and the like (see count 34). Likewise the evidence in relation to count 35 includes language that is sufficiently particularised, such as his evidence that on this occasion the applicant had lubricant and a canister, from which I accept that DN was directing attention to what had happened on that specific occasion.
3. It is significant that DN did not concede that his memories were blurred, jumbled or blended; rather, DN gave evidence that, although it was "numerous times" and "numerous places", "I can remember clearly some of the times where we went first" (T 106.19-21). In this regard, the case can be distinguished from Wade v R (see at [90]). Nor can it be said that DN's evidence lacked any distinctive features, as was the case in RD v R (see at [18]-[20] per Macfarlan JA, with whom Walton and Hamill JJ agreed on this issue).
4. Therefore, I consider that it was open to the jury to find these counts made out beyond a reasonable doubt.

Applicant's submissions

1. The applicant submits that the evidence in support of counts 36 and 37 suffered from the same deficiency as that in relation to counts 34 and 35. The applicant emphasises the following aspects in respect of DN's evidence in relation to those counts (see as extracted earlier). First, the statement that: A. So he would drive down to where the river was and you cross the old version before the overpass was there, and you'd drive across. So on both sides of the road there was like a picnic area or something along them lines it was, like a carpark of some description. It wasn't tarred; it was dirt, and he used to drive a fair way and he'd park at the end, have me hop into the back seat of the Range Rover and, you know, there were times where he wouldn't do the oral - playing with my penis part and the oral sex upon me. He'd just have anal sex with me.
2. Asked to focus on the first time that he was taken to this area, the applicant emphasises that DN's account of what happened was: A. So he'd have me - we'd pull up in the carpark, he'd fold the seat down on the Range Rover, have me hope in the back of the car. … A. The back seat would fold down, yep. … A. He would have me hop into the back seat of the car. He would, you know, proceed with trying to get me to have an erection and make me ejaculate and then, you know, he's always trying-- … A. He would then, you know, have me roll over on my stomach which I knew exactly what that always meant. He would, you know, take his pants off. When he put my hand on his penis, he tried to get - you know, make me get him an erection or, you know. So he had me roll onto my stomach. Either he'd already had me give him an erection or he'd get an erection himself by playing with himself, and then proceeded, you know, to get that film canister out again. He even kept, you know, a bottle of baby oil in the glove box of the car. He produced that baby oil or Vaseline and then put it on his penis and have anal sex with me. … A. No. He would physically roll me over, yep. … A. It would come to an end with him, as it did all the times of him, you know, having anal sex with me and ejaculating inside me and everything, yeah.
3. The applicant says that DN's evidence about what would occur on more than one occasion at or around the Woronora Bridge was not sufficient proof of the specific occasion alleged by counts 36 and 37 and the convictions in respect of counts 36 and 37 should be quashed for this reason.

Crown's submissions

1. Again, the Crown submits that while some of DN's answers on this count suggestive of ongoing conduct, his evidence as to the acts giving rise to counts 36 and 37 clearly related to the single occasion which had been identified earlier in his evidence as "the first time" sexual intercourse occurred inside the car at Woronora bridge (T 108).
2. It is said that the evidence giving rise to count 36 unambiguously related to this single occasion, noting that in response to the question "Do you recall how he made you ejaculate on this occasion?", DN said "Orally, with his mouth, yeah" and that the evidence as to count 37 was also unambiguous: Q. And on that occasion was there anal intercourse? A. Yes.
3. It is noted that DN also said that on that occasion, the applicant used lubricant from the canister (or something from the glove box) and that the car they were in was the Range Rover.

Determination

1. I consider that the evidence in relation to counts 36 and 37 (extracted earlier) amply shows that DN had a tendency to respond to questions in the imperfect tense (suggesting a generalised account of events) but that he was describing what occurred on that specific occasion by reference to his recollection that what had occurred was what had previously occurred on numerous other occasions (hence the phraseology employed). That is because it is clear that DN's attention was being directed to the first occasion in this location; that he recalled it was night time and there were no other cars around; that he knew that on this occasion the applicant had performed fellatio on him to ejaculation; and that on this occasion there was anal intercourse and the applicant had used lubricant from the canister or something from the glove box. That to my mind is sufficiently particular, especially in contrast to the generalised evidence at the start that "there were times where he wouldn't do the oral - playing with my penis part and the oral sex upon me. He'd just have anal sex with me". The jury had the advantage of seeing and hearing DN give his evidence as to this count. It was open to them not to have a reasonable doubt about these counts.

Applicant's submissions

1. As to the bottle incident (D6) where DN's evidence was that at the applicant's home in Kurrajong the applicant bent him over a table, pulled his pants down, inserted a bottle into his anus and squeezed the liquid out of it, then had anal sex with him (and that this was the "first time" that this occurred), the applicant points out that count 38 was an allegation that before any act of anal intercourse, the applicant fellated DN. The applicant points out that in his evidence initially DN did not say that an act of fellatio preceded the other acts that he described and that he said at first, under cross-examination, that he did not "believe there was any sort of activity before the bottle" but then (in contradiction to this when asked a similar question again) DN said that, before inserting the bottle, the applicant played with his penis with his hands and "performing the oral sex" and that he ejaculated.
2. The applicant submits that the jury should have entertained a reasonable doubt about the applicant's guilt in respect of this count.

Crown's submissions

1. The Crown points to the further evidence elicited in relation to count 38 (at T 146-147) (see as extracted earlier) and says that the evidence eventually elicited in relation to this count came from the witness himself, who said that his memory had been refreshed. The Crown submits that it was open to the jury to accept his evidence that he had refreshed his memory and that the evidence that he subsequently gave was reliable.

Determination

1. For count 38, DN initially said "No, I don't believe there was any sort of activity before the bottle". After refreshing his memory from his statement, DN gave evidence that the applicant had performed oral sex on him prior to the bottle incident and anal intercourse. The initial "denial" was hardly emphatic. Bearing in mind that DN was giving evidence of events some 26 to 27 years prior, and that there were 33 counts covering 13 incidents, the jury need not have regarded the subsequent evidence as directly contradictory. Moreover, the quality of this evidence is not dissimilar to other counts where the evidence only came out after s 38 questioning.
2. DN's evidence of the count 38 oral sex was given not by reading his statement. It was given after prompting but appears to have been an account derived from actual memory.
3. I consider that in those circumstances the jury need not have held a reasonable doubt as to the reliability of DN's evidence on this count and I would not uphold Ground 2 in relation to the conviction on this count.

Applicant's submissions

1. As noted earlier, Count 44 alleged an act of anal intercourse on the occasion the applicant took DN to work with him at TNT, the allegation being that during this incident DN inserted his penis into the applicant's anus.
2. The applicant says that DN's evidence raised real doubt as to whether any penetrative sexual act was achieved on this occasion (noting that the Crown did not allege an attempt in the alternative). It is noted that DN said that, after the applicant put lubricant on DN's penis and positioned himself on all fours with DN behind him; that DN "was limp" and "wasn't willing to do anything"; and that the applicant "soon got sick of trying to do that" and had DN lie back down on the ground on all fours so the applicant could instead insert his penis into DN's anus. When pressed, DN suggested there may have been "slight penetration" but qualified this by saying, "but … I wasn't doing the motions of what you do to have anal sex".
3. The applicant points out that it was only after being referred to his police statement that DN gave evidence of an unequivocal act of penetrative anal intercourse, DN then saying that "It was one of those times where I was coerced into having anal sex with Pat until I ejaculated".
4. The applicant submits that the jury should have entertained a reasonable doubt as to whether on this particular occasion while at work with the applicant at TNT (the only occasion DN said that sexual activity occurred in these circumstances) a penetrative act of anal intercourse the subject of count 44 occurred.

Crown's submissions

1. The Crown says that the only part of DN's evidence of this incident that was clarified under cross-examination was confirmation that penetration had been achieved (noting that in his initial evidence DN said that there "might have been slight penetration" - see T 121). It is submitted that, having regard to the fact that the cross-examination only clarified evidence that had previously been given, it was open to the jury to accept that DN had forgotten that "small part" of the incident when first recounting it.

Determination

1. The difficulty I have with the evidence in relation to this count is not as to the clarification of what DN might have meant by "slight penetration" (because his account seems to have been that the applicant made him erect through fellatio or playing with his penis before positioning him so that DN could insert his penis in the applicant's anus but that DN then became limp because he was not willing to perform anal sex and was not following the motions that the applicant would perform when the applicant was having anal sex with DN). Rather, the difficulty is the inconsistency between DN saying (seemingly quite emphatically) that he was limp and not doing the motions to DN then saying that he had performed anal sex to ejaculation. Those propositions are inconsistent and the jury therefore ought to have had a reasonable doubt not as to whether penetration had occurred to some extent, but as to whether DN performed anal sex to ejaculation.
2. Notwithstanding the above, s 61HA of the Crimes Act provides that sexual intercourse for the purposes of s 66C(1) includes "the penetration to any extent of the genitalia or anus of a person by any part of the body of another person" (my emphasis). Accordingly, the count is made out by penetration alone, regardless of whether the penetration was slight or resulted in ejaculation. It follows that it was open to the jury to accept DN's account of slight penetration and the verdict as to count 44 is not unreasonable or unsupportable.

Applicant's submissions

1. Again, the complaint here is that DN's evidence in respect of counts 46 and 47 was evidence of generalised assertions of sexual misconduct on more than one occasion and was insufficient proof of the specific occasion alleged. DN's evidence in support of these two counts is extracted above. The applicant emphasises again that DN's evidence was framed in terms of "would perform" and "would play with my penis" and the like.
2. The applicant contends that the convictions in respect of counts 46 and 47 should be quashed for this reason.

Crown's submissions

1. Again, the Crown accepts that in DN's account of the acts giving rise to counts 46 and 47 to some extent he used the imperfect tense. However, the Crown points out that DN also used the perfect tense, indicating that he was drawing from a recollection of a single incident, referring to the evidence that "he [the applicant] slid the front seats forward on the [Berlina] and things went pretty quick when we were in the car". The Crown says that further questioning also clarified this was a single event referring to (T 124) where DN confirmed that "this trip" to Bass Point was after the applicant had picked him up from his house and not when he was staying in Sutherland; and that "on this occasion" he was dropped back at home again.

Determination

1. The evidence on these counts is perhaps the most generalised in its phraseology but I accept that DN confirmed that he was focussed on a particular occasion and this was sufficient to anchor his evidence to that occasion such that it was open to the jury (if the jury accepted DN as a credible witness in relation to these counts) to be satisfied beyond reasonable doubt as to these counts. In this respect the case is distinguishable from RD v R, where the Court considered that it was open to the Crown to ask the complainant to give evidence of what did occur rather than what would have occurred, but the Crown failed to do so (see at [18] per Macfarlan JA, with whom Walton and Hamill JJ agreed). Here, the Crown Prosecutor clearly directed DN to a particular trip to Bass Point, albeit towards the end of the complainant's evidence on these counts, and DN affirmed that his evidence was directed to this occasion.

Applicant's submissions

1. As to counts 51 to 53, I have already referred in some detail to the differences in the accounts of MA and DN as to the occasion on which each recall they went to the Royal National Park and the applicant's car was damaged.
2. The applicant notes that this was the only occasion in which DN's evidence was that he engaged in sexual activity with the applicant together with MA and that the Crown case was that these offences took place on 22 November 1993 (the day the applicant's car was damaged).
3. As noted above, DN's account of this event was inconsistent with MA's account of the event that occurred on the day the applicant's car was damaged. DN's account of the incident was that the applicant fellated him, had anal intercourse with him to ejaculation, directed MA to have anal intercourse with him until MA ejaculated, and then DN was further fellated by the applicant to ejaculation. MA's evidence was that on that particular occasion it was "oral sex day" but that the sexual activity had been interrupted by someone in the area and the three had returned to the car only to find the car damaged.
4. The applicant submits that these two accounts of the incident simply could not be reconciled and that the jury should have entertained a reasonable doubt about his guilt in respect of these counts.
5. The applicant also points out that count 53 was an act of masturbation (and the Crown opened on an act of masturbation to ejaculation) but that the complainant gave evidence at first of a different act (fellatio by the applicant until he, DN, ejaculated) (and after MA had had anal intercourse with him). The applicant notes that it was not until the further evidence that DN said that MA had performed oral sex on him and that the applicant proceeded to masturbate him to ejaculation.

Crown's submissions

1. As already noted, the Crown accepts that the evidence of MA and DN cannot easily be reconciled. The Crown points out that there were no charges on the indictment reflecting MA's evidence of this second incident with DN; instead, MA's evidence of this second occasion was relied upon by the Crown as broadly corroborating the evidence of DN in relation to counts 51, 52 and 53 (T 267.33).
2. In the context that both DN and MA had been subject to multiple instances of sexual abuse the Crown submits that it was open to the jury to accept that MA's recollection about the incident giving rise to counts 51, 52 and 53 was flawed. The Crown argues that this was an incident which, on DN's evidence, would have been more memorable to DN than MA. In any event, it is submitted that even MA's differing account broadly corroborated DN's evidence that there was sexual contact between the three, including oral sex, on an occasion when the applicant's car was broken into.
3. The Crown Prosecutor went to the jury on the basis that they would accept that DN, who suffered particularly longstanding abuse, had simply forgotten about the earlier incident and that MA's present recollection of the incident the subject of counts 51 to 53 was simply wrong.
4. The Crown here argues that, if anything MA's recollection corroborated DN's account that there was sexual conduct and that it did involve oral sex. Hence it is said that it was open to the jury to convict on these counts.

Determination

1. As noted earlier, I cannot accept that the evidence of this incident can be reconciled; and in my opinion it ought to have led the jury to have a reasonable doubt as to what had occurred. I would set aside the convictions for counts 51 to 53.

Applicant's submissions

1. Finally, the applicant challenges the convictions for counts 54 to 57, which related to the further incident described by DN at the applicant's home in Bangor when it is said that MA was present.
2. The applicant raises two issues with the evidence as to these counts.
3. The first issue, which relates to all four counts, is that DN's account of this further incident involving MA at the applicant's home at Bangor was not supported by MA's evidence, noting that MA's evidence was to the effect that he only ever met DN on two occasions and that on both of those occasions, the applicant took him and DN to the bush. The applicant points out that MA did not say that he was ever present inside the applicant's home at Bangor together with DN.
4. The second issue, relating solely to counts 55 and 56, is that the applicant says that DN's evidence in relation to count 56 (an alleged act of anal intercourse) was initially to the effect that, "this was probably one of those times" when such an act occurred. It is noted that, when asked directly as to the "order of events" on the particular occasion alleged, DN made generalised assertions: So there was the, you know, him playing with me with his hand, I guess. And then his mouth. He'd get me erect with his mouth. Have me perform anal sex to himself. Which, you know, I basically tried to get over as quick as possible. And he proceeded to have anal sex with myself. [Emphasis as per submissions]
5. It is noted that, when questioned by the Crown whether on this occasion there had been any "attempt" or "oral intercourse" in which the applicant had fellated DN (the subject of count 55), DN said he was "not a hundred percent sure" and could not "say yes or no" because "it happened that many times".
6. However, after being referred to his statement, DN said unequivocally that such an act occurred, that the applicant pushed his head down onto his penis and had him hold his penis in his hands.
7. The applicant submits that the jury should have at least entertained a doubt about counts 55 and 56 but, more generally, a reasonable doubt arose in respect of all four counts the subject of this incident in the light of MA's evidence that he only ever met DN on the two occasions the applicant took him and DN to the bush.

Crown's submissions

1. As to count 55, where DN gave his evidence relating to the allegation that the applicant's penis went into his mouth after looking at his statement, the Crown says that, in determining whether or not to accept this evidence, the jury were entitled to take into account that count 55 occurred in circumstances of a multitude of other sexual acts. The Crown submits that it was open to the jury to accept that this particular aspect of the incident had been forgotten by DN when in the witness box.
2. The Crown notes that DN said that MA was at the Bangor house asleep in the lounge room when counts 54, 55, 56 and 57 occurred. The Crown argues that a jury could readily have found that a night spent in the applicant's lounge room was not a memorable event for MA, whether or not DN was also at the house. The Crown says that the inconsistencies in the evidence were a matter for the jury to resolve; and that they did not compel the jury to have a doubt about all counts involving both MA and DN.
3. Again, as to count 56, the Crown says that although some of DN's language was general, it was clear overall that DN was referring to a single incident. It is noted that DN said unambiguously (and using the perfect tense) that, after going into the bedroom: the applicant "had oral sex with myself" (T 134) (count 54); "I had anal sex with him" (and "tried to get it over as quick as possible") (T 135) (count 56); and the applicant "proceeded to have anal sex with myself" (T 135) (count 57).
4. Further, the Crown says that DN's evidence that "[t]his was probably one of the times where - where I had anal sex with him and I - I ejaculated" (T 135) is an expression of uncertainty about whether or not ejaculation occurred, not about whether or not anal sex occurred (cf the applicant's written submissions at [157]).

Determination

1. In circumstances where MA was not present during the incident the subject of these counts, I accept that the fact that he did not give evidence of an occasion at the applicant's house in Bangor when DN was also present was a matter that the jury could reasonably regard as not giving rise to a reasonable doubt as to what had occurred in the bedroom between the applicant and DN.
2. As to the way in which DN gave this evidence, I accept that his evidence was sufficiently particular and that, in context, the uncertainty expressed by him was as to whether ejaculation had occurred not as to the anal sex itself.
3. I am not persuaded that the convictions on these grounds were unreasonable. It was for the jury to reach a conclusion as to DN's credibility on these counts.

Ground 3: A miscarriage of justice was occasioned by the Crown Prosecutor's closing address to the jury which conflated tendency and coincidence reasoning.

Ground 4: The trial judge erred in his directions on tendency reasoning.

1. The applicant contends, by Grounds 3 and 4, that a miscarriage of justice was occasioned by the Crown Prosecutor's closing address which conflated tendency and coincidence reasoning, and by the trial judge's consequential error in his directions to the jury on tendency reasoning. These grounds may conveniently be dealt with together.
2. As adverted to earlier, prior to the trial, the Crown had applied successfully pursuant to s 97 of the Evidence Act to rely on tendency reasoning in the Crown case. The Crown did not apply pursuant to s 98 of the Evidence Act to rely on coincidence reasoning in the Crown case. (While the applicant here does not suggest that it would not have been open to the Crown to make such an application, the applicant relies on the fact that the Crown did not do so.)
3. I have referred above to what was said as to tendency evidence in the Crown Prosecutor's opening address; and to the closing submissions as well as the directions given to the jury in this regard.
4. By Ground 3 the applicant submits that in the italicised passages set out above, the Crown Prosecutor conflated tendency and coincidence reasoning. (The Crown argues that rule 4.15 applies to Ground 4. It is also noted that the failure to take issue with the Crown Prosecutor's closing address is a particular of Ground 5 as to incompetence of Counsel.)
5. By Ground 4 the applicant complains that in the summing up, his Honour also conflated tendency and coincidence reasoning, in stating that: What the Crown says is that if you are satisfied that the Crown has established these tendencies, then that makes it more likely that the complainants who have made various allegations at different times are likely to be telling the truth. [Emphasis as per the applicant's submissions].

Applicant's submissions

1. The applicant refers to Murdoch (a pseudonym) v R (2013) 40 VR 451; [2013] VSCA 272 at [81] where Priest JA (with whom Redlich and Coghlan JJA agreed) said: I should pause to consider the difference between tendency evidence and coincidence evidence, since although they overlap, the two are distinct (albeit they are often conflated). Both seem to be underpinned by the notion that human behaviour occurs in patterns. Hence tendency reasoning carries with it the idea that because a person has acted in a particular way in the past, he or she will act in a particular way, or possess a particular state of mind, in the future. On the other hand, coincidence reasoning uses similarities in behaviour to prove that a person was responsible for it.
2. The applicant argues that there clearly is a distinction between tendency reasoning and coincidence reasoning, which is reflected by the terms of ss 97 and 98 of the Evidence Act. In relation to tendency reasoning, "the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue" (see Hughes v R (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [16] (Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that s 97(1) does not necessarily "condition the admission of tendency evidence on … operative features of similarity with the conduct in issue"; where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, the evidence is likely to have a high probative value where "(i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged" (Hughes at [39]-[41] per Kiefel CJ, Bell, Keane and Edelman JJ).
3. The applicant contrasts this with coincidence reasoning, which has been described as "improbability reasoning" which turns on an assessment of "similarities between [two or more] events, or … the circumstances surrounding those events, or both" to reason that the events in question did not occur coincidentally (referring to the ALRC Report 102 at paragraph 11.25). Section 98(1A) (which did not apply at the time of the trial, having been subsequently inserted in the legislation by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), Sch 1[3], which took effect on 1 July 2020) now provides that the "coincidence rule": … includes the use of evidence from 2 or more witnesses claiming they are the victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.

Crown's submissions as to tendency and coincidence reasoning

1. The Crown points out that the use of tendency and coincidence evidence in this case was governed by the Evidence Act prior to the amendments effected by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW).
2. It is noted that in a child sexual assault case, the evidence of one complainant may be admissible in proof of another complainant's allegations on the basis of either tendency or coincidence reasoning; and that, where tendency reasoning is relied upon, "the trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue" (Hughes at [16] per Kiefel CJ, Bell, Keane and Edelman JJ). It is noted that such a process of reasoning depends on the jury's finding, first, that a particular allegation is true and, secondly, that the tendency asserted has been proved.
3. The Crown points out that, in the context of a child sexual assault prosecution, the Royal Commission explained the way in which tendency evidence may be deployed (p414): If a jury accepts that the accused committed the other offence or offences, the law has accepted that the evidence may be capable of proving the accused has some tendency or propensity to act in a particular way - for example, to be sexually attracted to young boys and to act on that attraction. The jury may then reason that this makes it more likely that the accused acted on this tendency or propensity and committed the particular offence of abusing a young boy whose complaint is the subject of the trial.
4. The Crown says that, by contrast, coincidence reasoning, enables the evidence of multiple complainants to be "mutually corroborative" (Versi v R [2013] NSWCCA 206); i.e., instead of requiring any preliminary findings to be made, the jury can have regard to the "improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred" (Pfennig v R (1995) 182 CLR 461; [1995] HCA 7 at 482).
5. It is noted that, as explained by the Royal Commission, in the context of a child sexual assault prosecution (p 415): Juries can use coincidence evidence from multiple complainants to reason that, given the similarities in the complaints, it is improbable that the complainants are all telling lies or are all mistaken.

Determination

1. The applicant complains that there was a conflation in the Crown's address and in the summing up between tendency and coincidence reasoning and that (unlike the position in Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42 (Hoyle) where the Court (Murrell CJ, Burns and North JJ) reasoned (at [208]) that the error had been rectified), here, the conflation was not corrected. It was accepted by the applicant that if what was here being said was that if the tendency is established it could make more likely the occurrence of the event in issue (i.e., that the applicant had acted in conformity with the tendency on a particular occasion) there would not be error. The applicant also accepted that the concepts of tendency and coincidence were not far apart.
2. In the present case, a complainant alleging an event consistent with an established tendency might well be seen as more credible or reliable in that account. The tenor of the observations of the Court in Hughes was that, if a tendency is accepted, this increases the likelihood that the complainant's account was not fabricated. In this regard, the Court stated at [40]: Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.
3. The remarks of the High Court in Bauer at [49] are also apposite: As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts.
4. The applicant says that there is a fine distinction but that there is nevertheless a distinction in the modes of reasoning involved. It has been suggested that, if evidence is admissible as tendency evidence, then a direction in terms of coincidence (emphasising striking similarities in the evidence) is unlikely to constitute a misdirection (see S Odgers, Uniform Evidence Law (2021, 16th ed, Thomson Reuters) at [101.360]; where reference is made to KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 (KJR), per Rothman J at [52]-[54]; Simpson J (with whom McClellan CJ at CL agreed) at [3]-[4]); see also Doyle v R [2014] NSWCCA 4 (Doyle) per Bathurst CJ (with whom Price and Campbell JJ agreed) at [144]-[148]). Although neither KJR nor Doyle expressly state Odgers' broad proposition, the cases demonstrate that proof of similar conduct may support proof of a tendency to behave in a certain way or have a certain state of mind, which in turn may establish the ultimate offence. This is apt to suggest a further requirement (that there be a similarity in the conduct) which is arguably to the benefit of the applicant (though here the applicant's complaint is as to erroneous assertion of there being mutual corroboration of complainants).

Ground 5: A miscarriage of justice was occasioned by the incompetence of the applicant's trial counsel

Applicable principles

1. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (Nudd v (2006) 80 ALJR 614; [2006] HCA 9 (Nudd) at [12] per Gleeson CJ; TKWJ v R (2002) 212 CLR 127; [2002] HCA 46 at 149-150 [79] per Gleeson CJ; Ali v R (2005) 79 ALJR 662; [2005] HCA 8 at 665 [18] per Hayne J).
2. In R v Birks (1990) 19 NSWLR 677 (Birks) (the case from which the eponymous Birks ground has been coined), the Court of Criminal Appeal considered an appeal on the ground of incompetence of counsel. At trial, after directions had been given to the jury which invited the jury to treat the conduct of the defence counsel as a relevant factor when engaging in their own decision making process and when forming views as to the credibility of the accused, defence counsel informed the trial judge that the failure to cross-examine the complainant about certain matters had been the result of his own oversight. Gleeson CJ noted (at p 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted but went on to say (at p 684) that: It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common them running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.
3. At p 685, his Honour summarised the relevant principles, the third of which was: However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

Applicant's submissions

1. The applicant submits that a miscarriage of justice was occasioned by the incompetence of the applicant's trial counsel. It is submitted that the incompetence of his trial counsel manifested itself in the cumulative effect of the following combination of omissions.
2. First, not making a pre-trial application for counts 20, 23 and 24 to be stayed because they were statute-barred.
3. Second, not giving an opening address.
4. Third, cross-examining each complainant in a manner that was "both exceedingly brief and devoid of any discernible forensic purpose beyond effectively "putting" that the offences did not happen" (see applicant's submissions at [175]). It is noted that, for MA and DN, Counsel's cross-examination was a total of 13 questions (six questions put to MA and seven questions put to DN).
5. Fourth, not addressing the Court in response to the Crown's indication at the close of the Crown case that he intended to expand the Crown's tendency case to include coincidence reasoning.
6. Fifth, not making any application for a directed verdict in respect of counts 34, 35, 36, 37, 46, 47 or 56, where DN's evidence went no higher than "generalised assertions" of sexual misconduct by the applicant towards him rather than evidence as to any particular act alleged by those counts.
7. Sixth, giving a "strikingly brief closing address, during which he made no specific submissions about any of the matters raised by the evidence adduced in the case, in particular, any of the matters addressed by these submissions under Ground 2". It is noted that Counsel's closing address went no further than reminding the jury about the onus and standard of proof and reminding them that the applicant said he did not commit the offences.
8. Seventh, making no application for a direction pursuant to s 165B of the Evidence Act 1995 in circumstances where the applicant's defence was that he did not commit the offences and was at the considerable forensic disadvantage of being on trial more 25 to 30 years after the fact, in circumstances where he was first interviewed in respect of any of the allegations in 2017, and where his ability to marshall any sort of defence by investigating the complaints made, challenging the complainants or other witnesses in the Crown case, calling evidence and generally conducting his defence were affected adversely by this delay (here referring to Tully v R (2006) 230 CLR 234; [2006] HCA 56 at [177] per Crennan J).

Crown's submissions

1. As to the particulars of incompetence, the Crown submits as follows.
2. As to the first, the Crown accepts that the convictions for counts 20, 23 and 24 must be quashed on account of the operation of s 78T. However, the Crown submits that the failure to seek a stay of these counts did not contribute to a miscarriage of justice; noting that it would not have prevented the evidence that gave rise to those counts from being led.
3. As to the second (not giving an opening address), the Crown notes that an opening address is facultative (referring to s 159(1) of the Criminal Procedure Act 1986) and is not an option always taken up by defence counsel. The Crown says that, given that an opening address may not be used to make submissions to the jury (citing R v MM (2004) 145 A Crim R 148; [2004] NSWCCA 81), there was no forensic advantage to be gained by giving an opening address. It is submitted that particularly where, as here, the defence case was an outright denial of the offences, there was little to be achieved by way of a narrowing of the issues. In those circumstances, the Crown says that it cannot be said that, objectively speaking, there was no rational forensic explanation for the failure to give an opening address. It is submitted that this failure could not have affected the outcome of the trial.
4. As to the third complaint (as to the cross-examination of the complainants), the Crown accepts that the cross-examination of the complainants was "unorthodox". However, the Crown argues that it was capable of explanation on rational forensic grounds in circumstances where the applicant's case was a simple denial that the offences had occurred. It is said that, faced with historical allegations, the applicant could do little other than deny the offences (and put that to the witnesses). It is submitted that, by not cross-examining the witnesses further, the applicant prevented the witnesses from repeating their evidence in chief and supplying further details in relation to each incident that may only have enhanced their credibility. It is submitted that this left the applicant in a strong forensic position simply to submit that the Crown had not discharged its burden of proof.
5. As to the fourth and fifth particulars of complaint (failure to complain about the Crown's asserted use of coincidence reasoning and failure to make application for directed verdicts in relation to those counts for which it was contended that there was only generalised evidence) the Crown argues that (for the reasons set out in the Crown's submissions on those matters) there was no issue that trial counsel could legitimately have taken with the Crown Prosecutor's closing address or with the evidence given by DN.

Determination

1. Of the complaints made by the applicant as to the conduct of the trial by defence counsel, to my mind that which takes this matter outside the ordinary running of a trial (to use the language of Gleeson CJ in Birks) is the perfunctory nature of the cross-examination of the complainants coupled with the equally inadequate closing address. The gross failings in that regard are amply demonstrated by the comprehensive and careful way in which the applicant's (different) counsel on appeal explored the inconsistencies in the evidence of MA and DN and the matters that it was contended should have raised a reasonable doubt in the mind of the jury. Even if, as the Crown here suggested, there was a rational forensic decision to take the (concededly unorthodox) approach that defence counsel did in cross-examination of MA and DN (doing little more than putting to them that their account of events was incorrect), there is no apparent rational basis for failing to highlight to the jury the inconsistencies in the evidence - particularly the evidence that the Crown concedes is not readily reconcilable. There is much force to the observation that this was a case that defence counsel appears to have allowed the case simply to "wash over" him; and in those circumstances the applicant did not have a fair trial on the very serious counts alleged against him.
2. The question then is whether defence counsel's conduct in that regard affected the outcome of the trial such that there was a miscarriage of justice. I accept that the Crown pointed to some of the evidentiary difficulties in its closing address; and that the balance of the complaints here made by the applicant would not warrant appellate intervention. However, I consider that defence counsel's failure was so incompetent that the applicant was deprived of the opportunity to have a fair trial. Even if the lack of address was more significant for some counts than others, all are infected by the error because of the reliance on tendency evidence which pervaded each count.

Appropriate relief

1. The applicant's convictions on the counts which were statute barred (counts 20,23 and 24) should be quashed and verdicts of acquittal entered. The applicant's convictions on the counts where the verdict has been found to be unreasonable or unsupportable (counts 1-3, 21, 22, 51, 52 and 53) should be quashed and verdicts of acquittal entered. On the remaining counts on which the applicant was convicted, the convictions should be quashed because the incompetence of defence counsel at trial deprived the applicant of a fair trial and those counts should be remitted for re-trial.

Orders

1. For the above reasons, I propose the following orders: 1. Extend the time for the filing of the notice of appeal to 8 November 2021. 2. Leave to appeal be granted. 3. Appeal allowed. 4. Quash the convictions on each of counts 1-3, 20-24 and 51-53; and substitute on those counts verdicts of acquittal. 5. Quash the convictions on the remaining counts and remit the matter to the District Court for retrial; and list the matter before the District Court on 23 September 2022.
2. R A HULME J: I agree with the analysis, conclusions and orders proposed by Ward P.
3. It is highly regrettable that a retrial must be ordered but it is necessary for the reasons provided by Ward P. It may be generous to regard the brevity of Mr Sabharwal's cross-examination of the three complainants (occupying an aggregate of 6 pages of transcript) as being an astute forensic tactic. The closing address, however, was anything but that. It was so perfunctory that it ran to a mere 36 lines of transcript. It was confined to telling the jury about a subject that had already been covered by the Crown Prosecutor and would be addressed again by the trial judge: the onus and standard of proof. There was not the slightest attempt at providing the jury with any critical analysis of the quality of the evidence relied upon by the prosecution. In these circumstances, it is difficult to understand how the applicant benefited from having legal representation at all.
4. BELLEW J: I agree with Ward P. I also agree with the additional observations of R A Hulme J.

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