R v Connors

COUNSEL : W Terracini SC/RC Pontello - Appellant P G Berman SC - Crown SOLICITORS : W H Parsons and Associates - Appellant S E O'Connor - Crown CATCHWORDS : Criminal law - Evidence Act s165 - corroboration - motive in complainant to lie. DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60829/99 Giles JA Wood CJ at CL James J

20 November 2000 REGINA v Clifford Ronald CONNORS

JUDGMENT 1 GILES JA: I agree with James J 2 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of James J. I agree with his reasons and the orders he proposes. 3 JAMES J: This is an appeal by Clifford Ronald Connors against his conviction, after a trial in the District Court before his Honour Judge Nield and a jury, on one charge of aggravated indecent assault (an offence under s61M of the Crimes Act) and four charges of homosexual intercourse with a male person aged between ten and eighteen years (offences under s78K of the Crimes Act). At the trial the jury found the appellant not guilty of another charge of aggravated indecent assault. 4 The complainant in the case of all the alleged offences was a boy born in November 1984, who was thirteen or fourteen years old at the time the offences were allegedly committed. The complainant's age was the circumstance of aggravation in the alleged offences of aggravated indecent assault. 5 The appellant was the minister of a church in a suburb of Sydney, which the complainant's mother, the complainant and the complainant's younger brother ("B"), who was born in August 1987, attended. It was alleged by the Crown that all of the offences were committed in a house in which the appellant and his male partner, a man named Stuart Simons, lived, during periods while the complainant and his brother were staying at the house. 6 The Crown had initially wished to present a single indictment against the appellant, charging him, not merely with the six offences allegedly committed against the complainant, but also with three offences allegedly committed against B. However, before the trial commenced, Judge Nield ruled that there should be separate trials of the charges involving the complainant and the charges involving B. Accordingly, the indictment presented by the Crown at the trial was limited to the charges involving the complainant. Judge Nield also ruled that at the trial of the charges involving the complainant evidence that the appellant had committed offences against B would not be admissible and, in accordance with his Honour's ruling, no such evidence was adduced at the trial. 7 The charges in the indictment which was presented at the trial can be summarised as follows:-

Aggravated indecent assault committed between 11 January 1998 and 16 January 1998.

Aggravated indecent assault committed between 1 February 1998 and 30 April 1998.

Homosexual intercourse committed between 1 February 1998 and 30 April 1998.

Homosexual intercourse committed between 1 February 1998 and 30 April 1998.

Homosexual intercourse committed between 1 September 1998 and 31 December 1998.

Homosexual intercourse committed between 5 January 1999 and 16 January 1999. 8 The charge on which the appellant was found not guilty was the charge in the first count in the indictment of aggravated indecent assault between 11 January 1998 and 16 January 1998. 9 During the trial the fifth count in the indictment was amended, so as to extend the period within which the offence was allegedly committed to 1 July 1998 to 31 December 1998. The fifth ground of appeal in the grounds of appeal filed was that the trial judge had erred in permitting this amendment. However, this ground of appeal was subsequently abandoned and no submission was made in support of it. 10 After the jury returned their verdicts of guilty, Judge Nield sentenced the appellant for the offence of aggravated indecent assault charged in the second count in the indictment to imprisonment for a fixed term of six months to commence on 12 November 1999, for the offence of homosexual intercourse charged in the third count in the indictment to penal servitude for a fixed term of one year to commence on 12 November 1999, for the offence of homosexual intercourse charged in the fourth count in the indictment to penal servitude for a fixed term of one year six months to commence on 12 November 1999, for the offence of homosexual intercourse charged in the sixth count in the indictment to penal servitude for a fixed term of one year to commence on 12 May 2001 and for the offence of homosexual intercourse charged in the fifth count in the indictment to penal servitude for a term of three years six months, with a minimum term of six months to commence on 12 May 2002 and an additional term of three years. 12 November 1999 was the date on which, the jury having returned their verdicts of guilty, Judge Nield declined to continue the bail which had previously been granted to the appellant. The total effective sentence imposed on the appellant consisted of fixed terms or a minimum term of penal servitude or imprisonment totalling three years and an additional term of three years. In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentences imposed by Judge Nield.

The Crown Case 11 The witnesses who gave evidence for the Crown at the trial were the complainant, the complainant's brother B, Mr Raymond Menzies and a police officer Senior Constable Harding. The evidence in chief of these witnesses and the cross-examination of some of them can be briefly summarised as follows. I will defer dealing with the cross-examination of the complainant, until after I have summarised the evidence of the defence witnesses.

The Complainant's Evidence in Chief 12 The complainant was born in November 1984. In 1997 he met the appellant as the minister of a church in a suburb of Sydney, which his mother began attending with her two children. 13 In early 1998 the complainant's mother and her current partner, a female, wanted a break from looking after the two boys and the appellant said that he would mind the boys while the complainant's mother and her partner went out together. 14 The complainant made an entry for 12 January 1998 in a diary for 1998 which he had been given as a Christmas present. This entry read "go Cliff and Stuart house (Addams family house)". The reference to the Addams' family house was a reference to a house in a popular television show. 15 The complainant and his brother went to the appellant's house on Monday 12 January 1998 and stayed for three nights. On this visit, as on other visits, they shared a large bed in a guest room in the house. 16 At about 5 o'clock on the first morning of this stay, that is the morning of 13 January, the appellant came into the spare bedroom, got into the bed and lay against the complainant in what the complainant described as "the spoon position". In this position the appellant lay with his back against the front of the complainant's body and "he would push his bum against my genitals in a rhythm". The appellant himself used the expression "the spoon position". The appellant said "Let's try this. It's called the spoon position". 17 This conduct by the appellant on the first morning of this visit was the subject of the charge of aggravated indecent assault in the first count in the indictment. 18 The next occasion on which the complainant and B went to stay at the appellant's home was at the end of February 1998, "because my Mum and Kim went to Mardi Gras and so Cliff offered to mind my brother and I". 19 Early on the first morning of this stay the appellant entered the bedroom, got into the bed and adopted the "spoon position". 20 On the morning of the second day of this visit the appellant repeated this conduct, "then after that he put his head under the blankets and started to suck my penis". The appellant asked the complainant "if I … wanted to do it properly… and I just said yes, and so he took me out into the lounge room and …. He laid me on the lounge". The appellant continued to suck the complainant's penis and then "he laid on the lounge and got me to put my penis up his anus". The appellant then got the complainant to masturbate the appellant. 21 The adoption by the appellant of the spoon position was the subject of the second count in the indictment, the sucking of the complainant's penis by the appellant was the subject of the third count in the indictment and the penetration of the appellant's anus by the complainant's penis was the subject of the fourth count in the indictment. 22 As his Honour instructed the jury at the trial, an act of homosexual intercourse falls within s78K of the Crimes Act, even though the sexual connection takes the form of penetration of the offender's anus by the complainant's penis (see the definition of "homosexual intercourse" in s78G of the Crimes Act). No other charges were brought against the appellant on the basis of his conduct on this occasion. 23 In the 1998 Christmas holidays the complainant had a conversation with Mr Raymond Menzies at the latter's home. Mr Menzies was eighty-three years old. The complainant told Mr Menzies:- "That Cliff had sucked my penis and had got me to put my penis up his bum and about the spoon position, how he would rub his bum against my genitals and how he had masturbated me and got me to masturbate him". 24 The complainant had not told anybody else about the appellant's conduct, because he did not feel comfortable about telling anybody else. 25 After the conversation with Mr Menzies the complainant stayed at the appellant's house with his brother between 5 January and 10 January 1999 and again from 14 January to 16 January 1999. 26 On the first morning of this visit (that is the morning of 6 January) the appellant entered the bedroom, got into the bed and adopted the spoon position. He then put his head under the blankets and sucked the complainant's penis. The appellant got the complainant to penetrate the appellant's anus, while the appellant was in the spoon position. This was followed by mutual masturbation. 27 The sucking of the complainant's penis by the appellant was the subject of the sixth count in the indictment. No other charge was laid against the appellant on the basis of any of his other conduct on this occasion. 28 During the time he was staying at the appellant's house in January 1999 the complainant said to the appellant that he did not want to do any more the things he and the appellant had been doing in the mornings. The appellant said that was "O.K, so long as I didn't tell anybody". There was no further sexual contact between the appellant and the complainant and the complainant never subsequently stayed at the appellant's home. 29 Late in his evidence in chief the complainant gave evidence that, less than six months before his conversation with Mr Menzies, anal intercourse had occurred between the complainant and the appellant. This conduct was the subject of the fifth count in the indictment. As I have already indicated, after the complainant had given this evidence, the fifth count in the indictment was amended, so as to extend the period within which this offence had allegedly occurred.

Evidence in Chief 30 B was born in August 1987. He confirmed that he and the complainant had stayed a number of times at the appellant's house, sleeping together in a large bed in the guest room. Their last stay had been in January 1999. 31 The first night B and the complainant stayed at the appellant's home, the appellant got into the bed, between the two boys. The appellant got up close to the boys and cuddled them. While the appellant was in the bed, B noticed that the bed was rocking. 32 On other occasions, in the late night or early morning, the appellant had come into the boys' bedroom and got into their bed. The appellant had sometimes lain with his penis against the complainant's "behind". 33 On one occasion in the bedroom, while the complainant was on the bed and B was using a computer close to the bed, B saw "Cliff put his hand down my brother's pants" and B saw the appellant's hand moving in a "squeezing motion" for about two minutes.

Cross-examination 34 B had not noticed the appellant getting into the bed but had sometimes woken up, when the appellant was already in the bed. B had pretended to be asleep, while the appellant was in the bed. 35 The incident when B saw the appellant put his hand down the complainant's pants had occurred in the daytime, on the first day of the boys' visit in January 1999. On this occasion the appellant had been in the bedroom "half a day". Both the appellant and the complainant had had all their clothes on. When the appellant had put his hand down the complainant's pants, the complainant had looked "really uncomfortable". 36 B denied that during the last stay in January 1999 the appellant had become upset with the boys.

Other Crown witnesses 37 Mr Raymond Menzies gave evidence that from April 1998 he had attended services at the appellant's church. He had become friendly with the complainant, B and their mother. He had played a number of games of golf with the complainant, who showed promise as a golfer. 38 Mr Menzies gave evidence about a conversation he had had with the complainant at Mr Menzies' home. Mr Menzies was unsure of the actual date of the conversation. The conversation had been around December 1998; Mr Menzies thought that it had been after Christmas. 39 Mr Menzies gave the following evidence about the conversation:- "I was making a cup of tea and he said to me, 'look, can I tell you something, if you promise not to tell anybody else"? and I said, 'yes, I'll make that promise', and he said, 'it's at Cliff's place.. I go there and he plays with my knob or sucks my knob and then he puts my knob up his bum', and I said, 'did you - would you have had an erection there?' he said, 'yes, Cliff would play with it' and I think that was the conversation at that moment and I said, 'I'll promise not to tell anybody but I'm not sure what to do… he said, 'Oh, this would happen in the bed', but he said, 'on occasions he took me out to a lounge in another room and there those things would take place". 40 Mr Menzies thought that the complainant's tone of voice during this conversation with him was one of embarrassment. 41 In cross-examination Mr Menzies accepted that the conversation with the complainant of which he had given evidence could have occurred as late as about 20 January 1999. 42 Mr Menzies said that, as well as playing golf with the complainant, the complainant had helped him by painting two ceilings in Mr Menzies' house, Mr Menzies being too old to use a ladder. 43 Senior Constable Harding gave evidence that he had obtained statements from the complainant and B in early February 1999. On 12 February 1999 he had spoken to the appellant about the allegations made by the complainant but the appellant had exercised his right to silence. 44 Senior Constable Harding said that in 1998 the Gay and Lesbian Mardi Gras had been on 28 February.

The Defence Case 45 A number of witnesses, including the appellant, gave evidence in the defence case.

The Appellant's Evidence in Chief 46 The appellant had been living with his partner Stuart Simons in the house in which the offences had allegedly been committed since July 1980. He had met the complainant, B and their mother at a church service in 1997. 47 The appellant described the house in which he lived as "a Georgian Colonial home with thirteen rooms overloaded with antiques". One item in the house was a set of girandoles, that is brass candle sticks with hanging crystal pendants, which was on a sideboard in a hallway adjacent to the master bedroom which the appellant shared with his partner. The appellant said that the pendants made a loud noise, if anyone walked past the girandoles. 48 The appellant denied ever having had any sexual contact with the complainant. On one occasion he had been on top of the bed in the guest room between the two boys but on that occasion he was watching a video. On a couple of occasions he had been on the bed in the guest room, scratching the complainant's back or having his back scratched by the complainant. 49 The appellant gave detailed evidence of what he said had happened on 12 January 1998. It had been pre-arranged with the complainant's mother that she would bring the two boys to the appellant's home on the morning of 12 January and that the two boys would be returned to their mother at the home of another clergyman named Clark at Bondi Junction that evening. 50 On 12 January 1998 the two boys arrived at the appellant's house, with their mother and her partner, in the morning. They were given a tour of the house. After the tour the complainant's mother and her partner left. In the afternoon the appellant and his partner took the two boys on excursions to a number of places. 51 In the evening of 12 January the appellant and his partner took the two boys to Mr Clark's house at Bondi Junction. The boys' mother and her partner were already at the house. All of those present had dinner at the house at Bondi Junction. After dinner the two boys, their mother and her partner left. After they had left there was meeting of the Board of Directors of the appellant's church. The Board meeting started at 7.30 and "should have finished by 10 pm". Minutes of the Board meeting were admitted into evidence. The appellant denied that the two boys had spent the night of 12 January 1998 at the appellant's house. The appellant said that the first overnight stay by the two boys at the appellant's house had been on 20 and 21 February 1998. 52 The complainant and B stayed at the appellant's house on 28 February 1998 and 1 March 1998. The night of 28 February 1998 was the night of the Gay and Lesbian Mardi Gras parade. The boys' mother had asked the appellant and his partner to have the two boys, because she and her partner wanted to attend the parade and a baby sitting arrangement the boys' mother had made with someone else had fallen through. The boys had been returned to their mother, after a church service on the night of Sunday 1 March. 53 The appellant gave evidence about other occasions on which the complainant and B had stayed with the appellant and his partner at their house, including details of numerous excursions on which he said he and his partner had taken the boys. 54 The appellant gave evidence about what seemed to him to be misconduct by the complainant and his brother during their last stay in January 1999. 55 One night the appellant had suggested to the two boys that they should go to bed, because "a very demanding excursion had been planned for the next day" but the complainant had replied "I want to stay up to watch the sexy movies on T.V". 56 The complainant was away from the appellant's home between 10 January and 14 January. On 14 January the appellant went with B in the appellant's car to pick up the complainant. On the return journey to the appellant's home, both boys had been deliberately "flatulent" in the car and had not stopped their conduct, after the appellant had told them to stop. The appellant became angry with the boys because of their disobedience. 57 On Friday 15 January the two boys helped at a church stall at Bondi Junction. B made a nuisance of himself by repeatedly disappearing from the stall. 58 On the way home from the stall in the appellant's car the appellant and the complainant talked. The appellant gave evidence:- "Amongst the things he said to me, he told me that at……school he and a group of friends of his had a suspicion about a science teacher being gay and they decided to set him up to see what his reaction would be when they asked him if he knew about a gay porn star called John Holmes. He then informed me that one of the group asked the teacher that question, the teacher went red in the face on hearing that question and (the complainant) laughed and said, 'he obviously gave himself away and we knew he was gay' and continued to laugh at the event… (the complainant) asked me if I'd seen any photographs of John Holmes in the nude. I responded that I had and (the complainant) asked me what he looked like. I said he was an ugly looking man, very tall, very thin, looked much like a stick insect and (the complainant) asked me if he had a big dick and I said he was renowned for his endowment". 59 On the last day of the visit the two boys were to return to their home in a country town by train. The two boys spent too much time getting ready. "Finally I screamed at them to get everything together and we had to race in order to get the train". 60 In the car on the way to the railway station the complainant said to B, "I don't think we'll be coming back here again". 61 When they arrived at the vicinity of the railway station, the appellant, who had to find somewhere to park his car, instructed the complainant to keep an eye on his younger brother, go straight to the station, get their tickets and wait for the appellant near a ticket counter. 62 When the appellant arrived at the ticket counter B was missing. The complainant said "He's over the road in a shop". The appellant ran to the shop and got B. They ran to the station and up on to the platform, arriving "about thirty seconds before the train arrived". The appellant said "While on the station I, very angrily, told the boys off. I told (the complainant) that I was bitterly disappointed in him for not doing what I told him to do in keeping B with him and looking after him and I particularly stripped B, verbally, for disobeying me and jeopardising the chance of catching that train". 63 The appellant said that he had a medical condition affecting his hands, which caused his hands to be cold for most of the year. 64 The appellant said that no lights were left on in the house all the night. His partner turned off all the lights in the house, when his partner retired for the night.

Cross-examination 65 The appellant had consulted his partner's diary in preparing a record of the events of which he had given evidence. The appellant had destroyed his own diary in early January 1999. 66 The appellant accepted that the Minutes of the Board meeting on 12 January 1998 showed that the meeting had concluded at 9.15, not at 10 o'clock as his evidence in chief would have tended to suggest. 67 The appellant agreed that the internal walls of the house were made of thick sandstone but denied that noises in one room could not be heard in another room. The appellant agreed that the complainant and B had stayed in the guest room, that the guest room was at the opposite end of the house from the master bedroom which the appellant and his partner occupied and that the master bedroom was separated from the lounge room by a thick wall. There was a sofa in the lounge room on which it would be possible to lie. The bed in the guest room was "a huge bed", with plenty of room for the two boys and another person to be in it. 68 The amount of noise made by the girandoles, if someone walked past, would depend on "the size of the person and the heaviness of their tread". It would be possible for someone to move through the house at night "without causing (as the appellant had suggested in chief) a mighty rattle on the girandoles". 69 The appellant believed that his partner turned off all the lights in the house when his partner went to bed (which was some time after the appellant himself retired for the night). The appellant accepted that he knew the layout of the house and of the objects in the house "but in the dark I wouldn't necessarily know where they are". The door to the master bedroom was left open at night. The appellant frequently got up at night to go to the toilet. 70 On the occasions when the appellant had scratched the complainant's back, he had scratched the complainant's back through his clothes. 71 The appellant accepted that the complainant had never made an issue to the appellant of the appellant being in a relationship with a same sex partner. The appellant knew that the complainant's mother was a lesbian and had been told that his father had been a homosexual man who had died. 72 During the last visit in January 1999 the appellant became annoyed because the complainant had wet the bed in the guest room and became angry with the complainant when the complainant said that he had wet the bed because he had seen a ghost which was supposed to frequent the house. The appellant said to the complainant "I'm not angry at you wetting the bed, you can't help that accident but I'm angry at you for telling me a lie". This alleged incident had not been put in cross-examination to either the complainant or B who had also been present. 73 The appellant said that during a visit in August 1998 the complainant had told the appellant that he had seen a film "Indecent Proposal" and had said "Cliff, you wouldn't like it, because it has a lot of sex in it". 74 The appellant denied using the expression "the spoon position". 75 The appellant claimed that when the boys finally left in January 1999 "(the complainant) had a very sour expression on his face and looked angry to me". Mr Simons

Evidence in Chief 76 Mr Simons confirmed that he had lived together with the appellant since 1980. He was member of the appellant's church. 77 On 12 January 1998 he and the appellant had brought the two boys to a house at Bondi Junction. The two boys had been at the dinner eaten at that house but left before the meeting of the Board of Directors of the church. 78 If there was motion in the vicinity of the girandoles, they would "tinkle"; considerably, if someone of the appellant's weight walked past. 79 After the last visit by the boys in January 1999, the appellant "was very annoyed with the behaviour of the boys, as was I". 80 Mr Simons had noticed that "particularly in winter" the appellant's hands were cold. Even at the time of the trial in November 1999, the appellant's hands were "cool at least, if not cold". 81 Mr Simons gave evidence of the appellant's good character. He said that in twenty years of living together he had never known the appellant to tell a lie.

Cross-examination 82 In cross examination Mr Simons said that he did not usually go to bed before midnight and might not go to bed before 1.30 or 2 o'clock. He would usually wake up between 4 and 5 o'clock in the morning. 83 Mr Simons gave evidence consistent with the appellant's evidence about events on 12 January 1998. He initially said that during the tour of the house "I think Cliff showed them into the bedroom where they were going to stay" but later in his cross-examination he said that it was not true that the appellant had shown the boys the bedroom during this visit. 84 Mr Simons said that the appellant suffered from cold hands "more in winter time than in this time of the year". Notwithstanding the condition of his hands, the appellant could drive a car, operate a computer and engage in sexual activity. However, that morning the appellant had put his hand on Mr Simons' stomach and the appellant's hand had felt cold. 85 Mr Simons asserted that, if the appellant got up and went to the toilet early in the morning, he, Mr Simons, would wake up. 86 Mr Simons accepted that, if he was in the main bedroom, he would not be able to hear anything happening in the spare bedroom. 87 Mr Simons recollected that in January 1999 the appellant had spent quite a bit of time in the spare bedroom, "working on his computer".

Other Defence Witnesses 88 A number of other witnesses gave evidence in the defence case. 89 A doctor gave evidence that he had examined the appellant on 30 September 1999 and had found that the appellant's hands were rather cold to the touch and had an unusual bluish discolouration. The doctor said that there is a medical condition known as "Raynaud's phenomena", which is a hypersensitivity to cold, mainly affecting the blood vessels in the hands and feet. The doctor did not expressly say in his evidence that he considered that the appellant was suffering from Raynaud's phenomena but this would appear to be implicit in his evidence. The symptoms of Raynaud's phenomena can be relieved by warming the relevant body parts. 90 A number of other witnesses gave evidence in the defence case. A number of these witnesses gave evidence to the effect that they had attended the Board meeting on the evening of 12 January 1998 and that the boys and their mother had not stayed for the Board meeting. These witnesses also gave evidence of the good character of the appellant. Some other witnesses also gave evidence of the good character of the appellant.

The Complainant's Cross-examination 91 In cross-examination the complainant said that he had written the very first entry in the diary about going to the appellant's house on 12 January 1998, before he went to stay at the appellant's house. He thought that he had got to the appellant's house on this occasion, by being taken by the appellant after a church service. 92 Later in the cross-examination the complainant accepted that on 12 January 1998 he had gone to a "meeting" at Bondi and had had dinner there and had been taken away by his mother. However, the complainant said he was sure that he had stayed at the appellant's home for three days from 12 January 1998. In saying this "I'm just going off what my diary says". 93 On the occasion on which the offence charged in the first count had been allegedly committed, the complainant had been woken up by the movement of the appellant getting into the bed. On the first occasion the appellant came into the bedroom at night, he had said that he and his partner used the spoon position when they were in bed and the appellant had demonstrated the spoon position to the complainant. 94 On the occasion on which the offences charged in the second, third and fourth counts had been committed, the appellant had touched the complainant's penis with his hands. The complainant had noticed nothing unusual about the appellant's hands. On other occasions also the appellant had touched the complainant with his hands. On these occasions the complainant had noticed nothing out of the ordinary about the appellant's hands. 95 On each occasion on which the appellant had got into the bed B had been in the bed but he had appeared to the complainant to be asleep. 96 During their stays at the house the appellant's partner was at the house but "he wasn't usually with us, he was… doing his own thing". 97 The complainant said that "some words" had been used during the last stay in January 1999 but he denied that there had been any argument or conflict. He denied that the last visit had ended badly with the appellant being upset by the behaviour of the complainant and B. He denied that B had run away when the two of them were helping at a stall. The complainant denied telling the appellant that it had been suggested to a teacher at his school that the teacher was homosexual. Some pupils in the complainant's class at school had mentioned a film star John Holmes and the complainant had asked the appellant if he knew who John Holmes was, because his mother did not. The complainant denied that John Holmes' name had been mentioned to a teacher at his school. 98 The complainant denied that he had teased anyone at his school for being homosexual. He retorted that he had a lesbian mother and a gay father "so I don't think I'd be teasing someone about being gay". The complainant denied having watched the film "Indecent Proposal". 99 The complainant said that when he and B were staying at the house lights in the house were left on, specifically so that the complainant and B could find their way to the toilet at night. 100 The complainant denied that the girandoles would jingle if one walked past. He said they would make a noise, only if they were bumped. 101 The complainant volunteered that he had got pleasure from having his back scratched by the appellant. The complainant had given the appellant a present for the appellant's birthday in December 1998.

Grounds of Appeal 102 The grounds of appeal against conviction in the notice of grounds of appeal which was filed were as follows:-

"1. The Trial Judge erred in failing to warn the Jury of the need for caution in determining whether to accept the evidence of the Complainant and the weight to be given to it as required by Section 165(2)(c) of the Evidence Act 1995.

The Trial Judge erred in failing to warn the Jury that they should scrutinise the evidence of the Complainant with great care.

The Trial Judge failed to direct the Jury as to what evidence could constitute corroboration of the Complainant's evidence.

The Trial Judge failed to adequately direct the Jury with respect to the issue of motive, in that the Trial Judge failed to direct the Jury that even if they reject the alleged motive for a Complainant to lie put forward by the Accused, that does not mean the Complainant is necessarily telling the truth.

The Trial Judge erred in allowing the Crown to amend Count 5 in the Indictment with respect to the dates between which that offence was alleged to have been committed.

The verdicts were unreasonable and/or incapable of being supported by the evidence". 103 I will deal with these grounds of appeal in the order in which they appear in the notice.

The Trial Judge erred in failing to warn the Jury of the need for caution in determining whether to accept the evidence of the Complainant and the weight to be given to it as required by Section 165(2)(c) of the Evidence Act 1995. 104 At the trial, after counsel had made their final addresses, the trial judge asked counsel, in the absence of the jury, whether either of them wished to make any submission about s165 of the Evidence Act. 105 Counsel for the appellant at the trial said:- "The age of witnesses is commonly a reason for them being thought to be unreliable and it would be upon that that I would - that is the evidence of children". 106 The Crown Prosecutor opposed the giving of a warning under s165 of the Evidence Act. 107 The trial judge observed that the age of the complainant and B was the only basis on which counsel for the appellant at the trial could request that a warning under s165 be given and his Honour queried whether a warning should be given on the ground of the age of a witness, when the witness (the complainant) was almost fifteen years old at the time of giving evidence. His Honour referred to the two witnesses, the complainant and B, and said:- "If I give a direction concerning one, then it would seem odd not to give it concerning two, bearing in mind one is fourteen, almost a week away from being fifteen, and the other is (twelve)". 108 His Honour concluded his discussion with counsel by saying:- "Well I think I might mention something about it". 109 In the summing-up his Honour, after referring to the assessment of witnesses generally, said:- "Members of the jury there are some things that I must say about some of the witnesses specifically. The first thing I want to say concerns the evidence of the complainant and his brother. I say these things to you, not because I have formed a view of the evidence of the complainant and his brother. I give you this warning because the law requires that I give you this warning. The evidence of a child may be unreliable because of the child's age. I am not suggesting that the evidence of a child is necessarily unreliable because of the child's age, I am saying that the evidence of a child may be unreliable because of the child's age. Obviously the younger the child, the greater might be the unreliability of what the child says. Now you do not need a judge to tell you that, you know, using your own commonsense, that what a child says may be unreliable, and that, the younger the child, the greater the possibility of unreliability. What I say to you is that, because of the age of the complainant and his brother - I shall come to their ages in a moment - their evidence may be unreliable. I am not suggesting that their evidence is unreliable, I am not telling you what opinion I have formed about their reliability, I am commenting that, because the law requires that I comment, the evidence of a child may be unreliable because of the child's age. The complainant was born on 24 November 1984, he is two weeks away from his fifteenth birthday. The complainant's brother …, was born on 6 August 1987 and he is three months past his twelfth birthday. You have seen both the complainant and his brother give evidence to you. You know their ages, not only because I have reminded you of what they are, but because each was asked his birth date. You are the judges of the facts and it is for you, as the judges of the facts, to assess the reliability of each of them. All I am saying to you is that when you assess their reliability you remember that their age may indicate unreliability, not that their age indicates unreliability, only that it may indicate unreliability, and I say that to you, not because of any opinion that I have formed concerning them, only because the law requires that I say that to you". 110 Section 165 of the Evidence Act provides, so far as is immediately relevant:- "(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (c) Evidence the reliability of which may be affected by age... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury". 111 It was submitted by counsel for the appellant that defence counsel at the trial had requested that a direction be given under s165 because of the age of the complainant and B and that the trial judge had made a determination that a warning under s165 was required. It was accepted by counsel for the appellant that what the trial judge had said in the summing-up was a sufficient compliance with pars(a)and (b) of ss(2) of s165 but it was submitted that the trial judge had failed to comply with par(c). No application for any further direction had been made by trial counsel but it was submitted that leave should be granted under r4 of the Criminal Appeal Rules to rely on this ground of appeal, because of the importance in the present case of a proper and full warning under s165. 112 I do not consider that leave should be given to rely on this ground of appeal. 113 The trial judge, after having seen and heard the complainant and B give their evidence and being cognisant of their ages, clearly doubted whether it was really necessary for him to give any warning under s165 and particularly in the case of the complainant, who at the time of giving evidence was within a few days of attaining his fifteenth birthday. It is, indeed, unclear whether the trial judge in concluding that "I might mention something about it" was making a determination that he should give a direction fully complying with s165 or deciding that he should exercise a power under the general law to give a more limited warning to the jury, a power which is preserved by ss(5) of s165. 114 In my opinion, his Honour was well warranted in doubting whether it was necessary for him to give a warning under s165 about the evidence of either the complainant or B and, in my opinion, he was not required to give such a warning. 115 In R v AGJ (unreported Court of Criminal Appeal 30 October 1997) Hunt CJ at CL said at p2 that there was:- "no warrant for interpreting the reference to 'age' in s165(1)(c) as requiring a warning to be given in every case in which the complainant is a child. The need will depend upon whether the circumstances in which the child gives evidence may rationally be considered as affecting the reliability of that evidence - for example, the fact the child is giving evidence of events which happened a significant time ago".

116 In the present case the complainant and B were giving evidence in November 1999, not about events which had happened a significant time before, but about events which had occurred within the last two years or the last year before the trial. 117 If a warning under s165 is required, it is not necessary that any particular form of words be used (ss(4)). In the present case it was conceded that what his Honour said in the summing-up was sufficient to comply with pars(a) and (b) and, in my opinion, his Honour, by saying he had to give special directions about the evidence of the complainant and B and that the evidence of the complainant and B might be unreliable because of their ages, would have conveyed, in the context of the summing-up taken as a whole, that the jury should treat the evidence of the complainant and B with special care. Elsewhere in the summing-up the trial judge expressly told the jury:- "The principal issue in this trial concerns the acceptability, the reliability of the complainant and his brother". 118 It is significant that no application for any further direction was made by counsel for the appellant at the trial, who was clearly aware of s165 and who, it should be inferred, was content with the directions which had been given. 119 It is also noteworthy that during their retirement the jury sent a note to the trial judge asking to see or hear the complainant's evidence again. The sending of this note would suggest the jury understood the need to closely scrutinise the complainant's evidence. 120 Having regard particularly to the ages of the two witnesses; the fact that they were giving evidence of events occurring within a couple of years of the trial and not many years previously; the trial judge's doubts about whether any warning was really necessary; the uncertainty about whether the trial judge actually made a finding that a warning under s165 was required, as distinct from some kind of warning under the general law; the likelihood that it was conveyed to the jury by what the trial judge said in the summing-up that the jury had to approach the evidence of the complainant and his brother with special care; the request by the jury to be supplied with a copy of the transcript of the complainant's evidence; and the absence of any request for any further direction by counsel who was clearly aware of the possible applicability of s165 of the Evidence Act, I would refuse leave to rely on this ground of appeal.

The Trial Judge erred in failing to warn the Jury that they should scrutinise the evidence of the Complainant with great care.

121 Counsel for the appellant referred to the decision of the Court of Criminal Appeal in R v Murray (1987) 11 NSWLR 12, in which Lee J, with the concurrence of the other members of the Court, said at p19 that a trial judge should:- "stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that, where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in…" 122 See also Longman v The Queen (1989) 168 CLR 79 especially per Brennan, Dawson and Toohey JJ at 91. 123 Although Murray was decided before the coming into force of the Evidence Act 1995, it is clear that the principles stated by Lee J continue to apply. 124 It was submitted by counsel for the appellant that in the present case the Crown case on all the counts on which the appellant had been convicted depended on the complainant's evidence alone and there was there no corroboration of the complainant's evidence. It was submitted that the evidence of the complainant's brother was evidence about conduct of the appellant which was not the subject of any charge and about which the complainant himself had not given evidence and was not corroborative of the complainant's evidence about the conduct of the appellant which was the subject of the charges. In the above circumstances, notwithstanding the absence of any application at the trial for such a direction, leave should be granted under r4 to rely on this ground of appeal and the ground of appeal should be upheld. 125 In my opinion, contrary to the submissions made by counsel for the appellant, the Crown case did not depend solely on the evidence of the complainant. In addition to the complainant's evidence, there was also the evidence of the complainant's brother which I have summarised earlier in this judgment. It is true that none of the complainants brother's evidence directly proved the commission of any of the offences charged. However, the evidence of the complainant's brother that the appellant had entered the guest bedroom at night, had got into the bed between the complainant and B, had cuddled up to them and had lain with his penis against the complainant's "behind" and had caused the bed to rock and that in the bedroom the appellant had put his hand down the complainant's pants and moved his hand in a squeezing motion for about two minutes was evidence affording some support to the Crown case on all the charges. 126 As I have already indicated in dealing with the first ground of appeal, I consider that the summing-up, taken as a whole, would have conveyed to the jury that they had to assess the complainant's evidence with special care and that the jury, by asking to be supplied with a transcript of the complainant's evidence, showed that they understood the need to use special care in assessing the complainant's evidence. 127 If the trial judge had given a direction of the kind which it is now submitted he should have given, fairness to the Crown would have required the trial judge to remind the jury that there was evidence independent of the complainant's evidence which would lend some support to the Crown case and to remind the jury of the nature of that evidence. It would not have assisted the appellant for the jury to have been reminded by the trial judge of the complainant's brother's evidence and an unwillingness to have the complainant's brother's evidence recapitulated in the summing-up could explain why trial counsel did not seek a direction of the kind now contended for. 128 I would refuse leave to the appellant to rely on this ground of appeal.

The Trial Judge failed to direct the Jury as to what evidence could constitute corroboration of the Complainant's evidence. 129 In written submissions on behalf of the appellant it was submitted that the trial judge had erred in not directing the jury about the definition of corroborative evidence and in not identifying for the jury such pieces of evidence, if any, as were capable of amounting to corroboration on the various charges. It was further submitted that the jury had not been told, as, it was contended, they should have been told, that the complainant's brother's evidence was not capable of amounting to corroboration of the complainant's evidence on any of the counts on which the appellant had been convicted. The jury, it was contended, would have been left with the impression that they could, if they saw fit, regard all of the complainant's brother's evidence as amounting to corroboration of the complainant's evidence on all counts. Counsel for the appellant referred to the decision of the Court of Criminal Appeal in R v Small (1994) 33 NSWLR 575. 130 In dealing with the second ground of appeal I have already stated the opinion I have formed that the complainant's brother's evidence, contrary to counsel for the appellant's submissions, was capable of giving some support to the Crown case on all charges and I would not accept that, under the principles relating to corroboration at common law, the complainant's brother's evidence was not capable of amounting to corroboration of the complainant's evidence on the charges on which the appellant was convicted. In his classic statement of the law on corroboration in his judgment in R v Baskerville (1916) 2 KB 658 Lord Reading CJ said inter alia at 667:- "The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime" 131 See also R v Galluzzo (1986) 23 A Crim R 211 at 215 per Street CJ. 132 In R v Small, the authority relied on by the appellant, Hunt CJ at CL said at 593:- "Although there is no rule of law which requires the trial judge to do so, in my view it is usually preferable for the trial judge in a straightforward case such as the present one to set out exhaustively each of the matters upon which the Crown relies and which may be considered by the jury as amounting to corroboration. … Where the trial judge has not exhaustively set out each of those matters which may be considered as amounting to corroboration, he or she must instruct the jury as to the qualities of corroboration in such a way as to leave it beyond doubt what conditions the material must satisfy before it can be regarded as corroboration". 133 However, R v Small was decided before the coming into force of the Evidence Act. By s164(3) of the Evidence Act it is expressly provided that it is no longer necessary to give a jury a warning about acting on uncorroborated evidence and it is accordingly no longer necessary to give a jury directions ancillary to such a warning, defining corroboration or identifying for the jury what evidence in a case is capable of satisfying the common law conditions for evidence to amount to corroboration. It will, of course, often be appropriate for a trial judge to tell a jury that they should examine the evidence to determine whether there is any independent evidence supporting the evidence of a principal Crown witness and to indicate to the jury what evidence, if any, might be regarded by them as affording such support. 134 In the present case the trial judge was not obliged to give directions of the kind contended for, no application was made by counsel for the appellant at the trial that such directions should be given and the trial judge did not err in not giving such directions. I would refuse leave to rely on this ground of appeal.

The Trial Judge failed to adequately direct the Jury with respect to the issue of motive, in that the Trial Judge failed to direct the Jury that even if they reject the alleged motive for a Complainant to lie put forward by the Accused, that does not mean the Complainant is necessarily telling the truth. 135 There was evidence at the trial which might have tended to show that the complainant (and B) had a motive to lie, that is to make false allegations of sexual misconduct against the appellant. In particular, the appellant gave evidence that he had become angry with the complainant and B for refusing to stop being flatulent in the car on 14 January 1999; that B had made a nuisance of himself by repeatedly disappearing from the church stall; that the appellant had been angry with the complainant for lying about why he had wet the bed; and that he had been angry with both boys for their misconduct in preparing to leave the appellant's home and catching the train on the last day of their last visit. There was also evidence by the appellant of the complainant's actions and pleasure in the embarrassing of the homosexual teacher at his school. 136 It was submitted by counsel for the appellant that "the inference of motive which was open to the jury was that the complainant made up the allegations because of the arguments he had with the appellant and because the appellant was very angry with the complainant on the last two days of the complainant's final visit with the appellant". 137 It was submitted by counsel for the appellant that the trial judge should have given the jury a direction that, even if they rejected the motive for the complainant to lie put forward by the appellant, that did not mean that the complainant was necessarily telling the truth. The trial judge did not give such a direction and all that the trial judge had said on the subject of motive in his summing-up was:- "An accused person does not have to prove any reason or motive in any witness saying whatever he or she may have said". 138 Counsel for the appellant referred to R v Uhrig (unreported Court of Criminal Appeal 24 October 1996) in which Hunt CJ at CL said at 16-17:- "What this Court said in R v F ((1995) 83 A Crim R 502) and R v E ((1996) 39 NSWLR 450) should not be interpreted as excluding arguments being put to the Jury, by either Counsel or the Judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no such requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the Judge to direct the Jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth". 139 In the present case the final addresses of counsel were not recorded or at any rate are not included in the appeal papers and accordingly this Court cannot know what submissions, if any, were finally put to the jury by counsel on the subject of the complainant having a motive to lie. I would, however, be prepared to assume that some submissions on this subject would probably have been put to the jury by counsel for the appellant at the trial. I would not, however, be prepared to make any assumption about what, if anything, was said by the Crown Prosecutor and, in particular, I would not be prepared to assume that the Crown Prosecutor put any argument of an illegitimate kind. Compare R v Jovanovic (1997) 42 NSWLR 520. 140 No application for a direction of the kind contended for was made at the trial and, in my opinion, leave under r4 should not be granted to rely on this ground of appeal. 141 What the trial judge said in his summing-up on the subject of motive, which I have already quoted, was said in the context of giving lengthy directions, to which no exception has been taken, about the onus and standard of proof in a criminal trial. In the course of giving these directions his Honour said:- "In a criminal trial the Crown has got to prove the guilt of the accused. The accused person does not have to prove anything. Specifically, an accused person does not have to prove his or her innocence. Moreover, an accused person does not have to prove any reason or motive in any witness saying whatever he or she may have said. That is the first rule. The second rule is this: The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. That simply means this, before any jury can find any accused person guilty of any criminal offence, that jury must be satisfied, beyond reasonable doubt, of that accused person's guilt of that particular offence". 142 What his Honour said in this part of the summing-up would have conveyed to the jury that the appellant did not have to establish any reason or motive for the complainant to lie and, if no reason or motive for the complainant to lie had been established, the jury still had to be satisfied beyond reasonable doubt of the guilt of the appellant before they could find the appellant guilty of any offence. Elsewhere in the summing-up the trial judge made it clear that the jury could not find the appellant guilty of any offence, unless they were satisfied, to the requisite standard, of the reliability of the complainant's and B's evidence. Nowhere in the summing-up did his Honour, either of his own motion or by way of repeating an argument put by the prosecution, invite the jury to consider what motive the complainant would have had for making false allegations against the appellant. 143 In any event, in the passage in his judgment in Uhrig which was cited by counsel for the appellant Hunt CJ at CL was not purporting to lay down a universal rule. His Honour merely said that "in many cases" it would be "appropriate" to give such a direction and such a statement by Hunt CJ at CL falls short of saying that in all cases it is essential that such a direction should be given. In determining whether in the present case it was appropriate that such a direction be given, this Court can take into account that counsel for the appellant at the trial did not seek such a direction, as indicating that it did not appear to trial counsel that such a direction needed to be given.

The Trial Judge erred in allowing the Crown to amend Count 5 in the Indictment with respect to the dates between which that offence was alleged to have been committed. 144 As previously indicated, this ground of appeal was abandoned by counsel for the appellant.

The verdicts were unreasonable and/or incapable of being supported by the evidence. 145 The principles to be applied by a Court of Criminal Appeal in deciding whether this ground of appeal against conviction should be allowed have been stated by the High Court in such cases as M v The Queen (1994) 181 CLR 487, especially at 492-494, and Jones v The Queen (1997) 191 CLR 439, especially at 450-451, and there is no need to repeat them here. 146 Having made my own independent assessment of the evidence and allowing for the considerable advantage the jury had in seeing and hearing the witnesses give their evidence, I have concluded that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on counts 2-6 inclusive. Among the matters which have led me to form this conclusion are the following:- 147 The complainant and B, although children, were not young children and they were giving evidence about matters which they said had happened in the comparatively recent past. The evidence of the complainant was supported in important respects by the evidence of B. Both the complainant and B had made statements to the police early in February 1999. 148 Although the complainant did not make a complaint at the first reasonable opportunity, he made an early complaint to Mr Menzies. Mr Menzies' best recollection of when the complaint had been made was that it had been made in late 1998. The complaint made to Mr Menzies went into details and the complainant's evidence and Mr Menzies' evidence of the terms of the complaint corresponded fairly closely with each other and with the complainant's evidence about the appellant's conduct. Mr Menzies attended the appellant's church and it is clear from the summing-up that no suggestion was made that he was other than an honest and accurate witness. 149 It would have been open to the jury to accept the complainant's denial that there had been any real argument or conflict between himself and the appellant during the last stay at the appellant's home in January 1999. In any event, the jury would have been entitled to conclude that it was not reasonably possible that the complainant had gone to the lengths of making false allegations of sexual misconduct against the appellant as a result of anything that had happened during the last stay at the appellant's home. 150 The appellant, while denying that he had committed any of the offences charged, did not dispute many parts of the evidence of the complainant and B, for example that the complainant and B had stayed at his home on a number of occasions between early 1998 and January 1999 and that they had occupied a large bed in a guest room at the opposite end of the house from the master bedroom and that he had, at least on certain occasions, been in the bedroom with the complainant. 151 The jury could readily have concluded that the appellant would have been able to get up in the early morning, without disturbing his partner Mr Simons, and to find his way around a house in which he had been living for about twenty years, even if there were no lights on, without making a noise, by walking past the girandoles or otherwise, such as would have woken up Mr Simons. The jury could readily have disbelieved Mr Simons' evidence that, after going to bed at some time between midnight and 2 o'clock in the morning, he woke up again between half past four and 5 o'clock in the morning. 152 The condition of the appellant's hands did not prevent him carrying out many activities with his hands and his hands at the time the offences were alleged to have been committed in January or February or early March, especially after he had been lying in his own bed, would have been likely not to have been cold. 153 Counsel for the appellant submitted that the verdict of not guilty on the first count undermined the credibility of the complainant's evidence generally. 154 However, the verdict of not guilty on the first count in the indictment is explicable on the basis that in the summing-up the trial judge expressly directed the jury that, even if they were satisfied beyond reasonable doubt that the alleged conduct had occurred and even if they were satisfied beyond reasonable doubt that the conduct had occurred on the first occasion on which the complainant had stayed at the appellant's house, nevertheless the appellant should be acquitted, unless the jury were satisfied beyond reasonable doubt that the conduct had occurred within the time frame alleged by the Crown in the indictment, that is at some time between 11 and 16 January 1998. The jury could have regarded it as reasonably possible that the first visit to the appellant's home by the complainant had not between 11 and 16 January 1998, and on this basis acquitted the appellant on the first count, while being satisfied beyond reasonable doubt of all the other elements of the offence. 155 Apart from this matter relating to the first count in the indictment, counsel for the appellant was able to point to very little by way of discrepancies or inconsistencies in the evidence of the complainant. 156 In my opinion, this ground of appeal should be dismissed.

Conclusion 157 I have refused leave to raise, or have dismissed, all of the grounds of appeal against conviction and I am accordingly of the opinion that the appeal against conviction should be dismissed.

Application for Leave to Appeal against Sentence 158 No submissions were made in support of the application for leave to appeal against sentence. The offences of which the appellant was convicted were very serious, and they involved a significant breach of trust on his part. The sentences imposed by his Honour were, if anything lenient. They could not be said to have exceeded a proper exercise of his Honour's sentencing discretion. I would refuse leave to appeal against sentence.

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