R v D'Arcy [2001] QCA 325

SUPREME COURT OF QUEENSLAND

CITATION: R v D'Arcy [2001] QCA 325

PARTIES: R v D'ARCY, William Theodore (appellant/applicant)

FILE NO/S: CA No 336 of 2000 / SC No 97 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 22 August 2001

DELIVERED AT: Brisbane

HEARING DATE: 4 May 2001

JUDGES: McMurdo P, McPherson JA and Chesterman J / Separate reasons for judgment of each member of the Court, McMurdo P and Chesterman J concurring as to the orders made, McPherson JA dissenting in part

ORDER: 1.Appeal against conviction dismissed. / 2.(a)Application for leave to appeal against sentence granted. / (b)Appeal allowed. / (c)Substitute a term of imprisonment of 10 years on counts 13, 16 and 18. / (d)Otherwise confirm the sentences imposed at first instance.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT - where appellant convicted of multiple indecent dealing and rape offences – where sentenced to 14 years imprisonment – where appellant appeals against conviction and sentence / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - whether trial judge erred in refusing an application under s 47(1) Jury Act 1995 (Qld) to question jurors as to impartiality – whether this refusal deprived the appellant of a fair trial – where widespread media coverage of the appellant’s activities as a member of parliament – where to raise such matters before the jury would emphasise these prejudicial matters – where appropriate direction – where prejudicial pre-trial publicity had no relevance to the actual charges – proper exercise of discretion – no miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether trial judge failed to adequately direct the jury as to the need to consider the evidence on each count separately – where directions given were appropriate and adequate – whether this direction was negated by a subsequent direction as to the absence of any suggestion of collusion between the complainants – where trial judge was merely stating an objective fact that he considered relevant – where earlier direction given that questions of fact were entirely for the jury to determine – comments did not amount to an appellable error / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – EXPRESSION OF JUDGES OWN OPINION – whether trial judge erred in pointing out that each complainant had given an explanation for the lack of fresh complaint – whether this comment had the effect of reversing the onus of proof – no reversal of onus when read in context the judge was entitled to make such comments to maintain balance / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – GENERALLY - whether the trial judge’s characterisation of an innocent act by the appellant as a ‘concession’ resulted in a miscarriage of justice – where judge was not suggesting that the appellant’s evidence was an admission supporting criminal conduct – no misdirection – in the context of the entire summing up the use of the word ‘concession’ did not deprive the appellant of a fair trial or cause a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether trial judge failed to warn of the dangers of convicting because of the delay in complaints being made – whether Longman direction given – where proper direction given – trial judge is not required to warn of every matter brought up by defence counsel in favour of the accused / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether adequate directions given as to the burden and standard of proof and the drawing of inferences – whether trial judge attempted to explain the meaning of ‘reasonable doubt’ – although perhaps an unnecessary elaboration the clear direction given was not such an attempt – whether judge erred in using the phrase “guilt or innocence” – in context nothing turns on the use of those words – where appropriate directions given as to drawing of inferences / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – whether trial judge failed to adequately direct the jury as to the proper use of uncharged acts – where the directions given made it clear that evidence of uncharged acts can only be used to demonstrate the relationship between the appellant and that particular complainant – where directions given made it clear that uncharged acts could not be substituted for specific activity charged – where directions given as to the proper use of uncharged acts and the requisite standard of proof – no miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION - whether trial judge failed to give adequate directions regarding the compellability of the appellant as a witness – where judge did not specifically instruct the jury that the appellant did not have to give evidence – where the direction given emphasised that the appellant did not assume any onus of proof – the judge is not required to specify the various consequences for the accused in giving evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – whether the jury should have been discharged because of defence counsels alleged incompetence – where defence counsels conduct must amount to flagrant incompetence to constitute a miscarriage of justice – where such incompetence not demonstrated – where no application for mistrial – whether judge was obligated to declare a mistrial – where only in the plainest of cases would a judge declare a mistrial without an application from a party / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – EXPRESSION OF JUDGES OWN OPINION – whether comments made by the judge caused the trial to miscarry – in the full context of the trial and summing-up the comments did not cause a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether the verdict was unsafe and unsatisfactory – upon a consideration of the whole of the evidence the verdict is not unsafe or unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES – whether sentence manifestly excessive – whether sufficient weight given to references tendered on behalf of the appellant – where character evidence, delay in prosecution and ill health are mitigating factors in sentencing – where mitigating factors need to be weighed against the gravity of the offences committed – where sentencing judge erred in not giving adequate weight to mitigating factors / Criminal Code (Qld) s 620, s 668E(1A) / Bell v The Queen [2001] WASCA 440; CA No 208 of 2000, 22 February 2001, considered / Crampton v The Queen (2000) 76 ALR 369, referred to / Duncan v The Queen [1983] 47 ALR 746, considered / Graham v The Queen (1998) 72 ALJR 1491, referred to / Jones v The Queen (1997) 191 CLR 439, considered / Longman v The Queen (1989-90) 168 CLR 79, considered / M v The Queen (1994) 181 CLR 487, considered / Murphy v The Queen (1988-89) 167 CLR 94, referred to / Palmer v The Queen (1998) 193 CLR 1, referred to / Pfennig v The Queen (1994-95) 182 CLR 461, considered / Ryan v The Queen [2001] HCA 21, referred to / Sell v The Queen (1995) 15 WAR 240, referred to / Shepherd v The Queen (1990) 170 CLR 573, referred to / Wagenaar v The Queen [2000] WASCA 325; CA No 45 of 2000 and CA No 46 of 2000, 3 November 2000, referred to / R v B [2000] QCA 42; CA No 345 of 1999, 24 February 2001, considered / R v Delgado Guerra [2001] QCA 266; CA No 324 and CA No 338, 17 July 2001, considered / R v Ezzy [1995] QCA 97; CA No 539 of 1994, 13 March 1995 / R v G [1994] 1 Qd R 540, considered / R v Glennon (1991-92) 173 CLR 592, considered / R v G [1997] 1 Qd R 584, considered / R v Kalf [2000] QCA 499; CA No 134 of 2000, 8 December 2000, considered / R v Kray (1969) 53 CrAppR 412, considered / R v L; ex parte Attorney General [1996] 2 Qd R 63, considered / R v McNamara QCA 405; CA No 261 of 1998, 1 December 1998, considered / R v O'Keeffe [2001] 1 Qd R 564, considered / R v Paddon [1998] 2 Qd R 387, considered / R v Pope QCA 318; CA No 271 of 1996, 30 August 1996, considered / R v Pryor [2001] QCA 242; CA No 317, 19 June 2001, considered / R v Robinson & Tiplady (1985) 123 LSJS 37, referred to / R v Schloss (1998) 100 AcrimR 80, considered / R v LSS [1998] QCA 303; CA No 128 of 1998, 2 October 1998 / R v T [1999] QCA 376; CA No 179 of 1999, 10 September 1999, considered / R v Taylor [2000] QCA 96; CA No 336, 23 March 2000, referred to / R v Tiso [1990] CrimLR 607, referred to / R v Ware NSWCCA, CA No 60115 of 1997, 9 July 1997, referred to / R v Yates [1985] VR 41, referred to

COUNSEL: A F Maher for the appellant / D Meredith for the respondent

SOLICITORS: Forest Lake Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant was convicted of 11 counts of indecently dealing with a girl under 12 years, four counts of indecently dealing with a boy under 14 years and three counts of rape in the Supreme Court at Brisbane on 1 November 2000. On 17 November 2000, he was sentenced to concurrent terms of imprisonments ranging from three to 14 years.

The appellant was a primary school teacher at a single-teacher State School in central western Queensland from June 1963 to July 1965, when he was said to have committed the offences upon students at the school. The appellant later became a Member of the Queensland Parliament.

He appeals against his conviction on a number of grounds. Some of the original grounds of appeal have been abandoned and leave was given to add a further eight amended grounds. He also seeks leave to appeal against his sentence.

The application under s 47 Jury Act 1995

Mr Maher, who appears for the appellant, first contends that the learned trial judge erred in refusing an application under s 47 Jury Act 1995 to question those selected to serve as jurors and reserve jurors as to their impartiality; the appellant was consequently deprived of a fair trial.

Section 47 Jury Act 1995 relevantly provides:

"(1)If a judge who is to preside at a civil or criminal trial is satisfied, on an application by a party under this section, that there are special reasons for inquiry under this section, the judge may authorise the questioning of persons selected to serve as jurors and reserve jurors when the court reaches the final stage of the jury selection process.

Example - Prejudicial … pretrial publicity may be a special reasons (sic) for questioning persons selected as jurors or reserve jurors in the final stage of the jury selection process."

On 17 October 2000, the appellant applied to ask the jury the following questions:

"1.Having regard to the fact that the accused was a Member of Parliament for the seat of Woodridge for 22 years and also having regard to the fact that after the accused resigned from his position as a Member of Parliament on 9 January 2000, significant media criticism was made of the fact that the accused had been paid his full superannuation entitlement by the trustees of the Parliamentary Superannuation Fund at a time when he was still facing sexual criminal charges, do you believe that you could carry out your duties as a juror impartially?

2.Having regard to the fact that during 1999 whilst the accused was still a Member of Parliament for the State seat of Woodridge, significant media criticism was made of the accused alleging that he had failed over many years to look after the constituents of the Woodridge electorate and to represent them properly in Parliament, do you believe that you could carry out your duties as a juror impartially?

3.Having regard to the fact that during 1999 whilst the accused was still a Member of Parliament for the State seat of Woodridge and held responsible positions as a Member of the Beattie Government, significant media publicity was given to the fact that the Premier of Queensland, Mr Beattie, called upon the accused to resign from Parliament over his alleged involvement in the so-called 'net-bet affair', do you believe that you could carry out your duties as a juror impartially? and

4.Having regard to the fact that during 1999 whilst the accused was still a Member of Parliament for the State seat of Woodridge and held responsible positions as a Member of the Beattie Government, significant media publicity was given to the fact that the accused who had refused to resign from Parliament on the basis that he had done nothing wrong with regard to the so-called 'net-bet affair' might thereby cause the downfall of the Beattie Government, do you believe that you could carry out your duties as a juror impartially?"

The prosecutor did not oppose the application and it was common ground that there had been the following widespread publicity. First, on 9 January 2000, the media published that the appellant had received the sum of $660,000 in superannuation as a retiring Member of Parliament, stringently criticising his receipt of such a large sum significantly funded by Queensland taxpayers when he faced serious sexual criminal charges; payment should have been frozen until the outcome of the charges so that if he were found guilty the moneys contributed by Queensland taxpayers could be permanently withheld from him.

Second, over many years the media had referred to the appellant as "The Phantom": he lived in a luxury mansion at Raby Bay and failed to properly represent his constituents, most of whom did not know he was their member and could not recognise him; the implication was that he spent little time in his electorate and was frequently absent from the House when Parliament was sitting.

Third, the media reported that the Premier had called upon the appellant to resign because of these offences alleged against him and because of his involvement in the net-bet affair; the appellant refused to resign claiming he had done nothing wrong. The media then speculated that he might vote with the Opposition forcing a minority government.

The learned primary judge concluded that to raise these matters before the jury would only serve to remind them of these criticisms. His Honour refused the application, commenting that he would inform the jury at the beginning and during the trial and in the summing-up to put out of their minds anything concerning the offences which may have been alleged outside the court room. The jurors were subsequently given those directions during the trial and the summing-up.

The prejudicial pre-trial publicity had no relevance to the actual charges and did not pre-judge the issues for the jury's consideration: cf R v Kray¹ and Murphy v The Queen.²

The primary judge's decision was within a sound exercise of discretion in the circumstances. There is no reason to think that the jury did not conscientiously follow the trial judge's directions in disregarding any matters not in evidence before the court: R v Glennon³ and R v Kalf.⁴ There has been no resulting miscarriage of justice and this ground of appeal must fail.

The directions to consider each count separately.

The appellant claims the learned trial judge failed adequately to direct the jury as to the need to consider the evidence on each count separately.

The learned primary judge gave the following directions:

"Can I come to an area which might be difficult for you. I think Mr Macgroarty pointed out to you here we have, in effect, four complainants making complaints against one defendant. There are really in front of you four trials being heard at the same time. This is the trial in respect of [R], the complaints she makes against D'arcy; [B], the complaints he makes against D'arcy, and so on. The evidence in one trial is not evidence in the others. A better way of explaining it to you might be to treat each count as a separate trial; that is, each count against the accused.

There is one exception to that rule, that the evidence in one trial is not evidence in the others and vice versa, the evidence in those trials is not evidence in that one."

His Honour then instructed the jury as to how they should deal with evidence of uncharged acts. At the conclusion of that instruction, his Honour noted:

"You must consider each count against the accused separately. It would be quite wrong for you to consider guilt or innocence with respect to one or two counts and then justify the verdicts on the rest - the result of your verdict on those one or two counts. Each count has to be considered separately and it follows, of course, that your verdict may be different on different counts."

Later, his Honour reminded the jury:

"do not forget that your task is to consider each count separately and ask with respect to each specific charge, are you satisfied, or 'Am I satisfied beyond reasonable doubt of the guilt of the accused as charged on that occasion?' …

You must consider each count separately. Then come to a conclusion whether or not the Crown has proved its case in relation to that count beyond reasonable doubt, whether you accept that the witness involved in relation to that count - the complainant particularly - is a witness of truth and substantial accuracy."

It is difficult to see what more the judge could have said to emphasise the need to consider each count separately; this ground of appeal must fail.

Comments on absence of collusion

Mr Maher next contends that those directions were negated or diminished by the following direction as to the absence of any suggestion of collusion between the complainants:

"Now, there are a number of factors I want to point to that you must look at when considering and weighing up the evidence of the complainants, bearing in mind that warning I have just given you. There is no suggestion of any collusion between any of them. There is no suggestion they got their heads together. The complaints were only made when the police approached them. It is not for you to engage in conjecture as to why the police may have approached them but the fact remains only when approached did they make these serious complaints against the accused independently of each other."

The appellant submits this direction is akin to the impugned direction given in Crampton v The Queen.⁵ Whilst it is unfortunate that the judge used the mandatory "must", I am not persuaded that this judicial comment on the evidence constitutes an error. It was not equivalent to pointing out the absence of a suggested motive to lie: Palmer v The Queen⁶ and Crampton v The Queen.⁷ Nor did it amount to a suggestion that the onus was in any way on the defence: see R v Taylor⁸ and R v T.⁹ The learned primary judge stated an objective fact which he thought was relevant. Despite the use of the word "must", the judge elsewhere directed the jury on a number of occasions that the facts were a matter for them; if they thought he had a view of a fact or facts it was a matter for them what respect they paid to his view because the facts were for them to decide. The judge's comments did not amount to an appellable error.

Comments on explanation for lack of fresh complaint

Mr Maher's next submission is that, after directing the jury as to the use to be made as to credit of the lack of fresh complaint, his Honour erred in pointing out that each complainant had given an explanation for the delay: "... substantially fear of D'arcy and the fact that these things weren't talked about at the time." His Honour next referred to evidence of the complainant R, commenting:

"You may also recall the graphic explanation, and again, whether it is graphic or not is a matter for you, they are my words you can disregard, … ."

The appellant contends that this amounted to a misdirection because it tended to reverse the onus of proof: see R v G.¹⁰ These comments and quotes from the evidence did not reverse the onus of proof; they were made in the course of a summing-up in which it was made amply clear to the jury that all questions of fact were for them alone. The judge was entitled to make such comments and to quote the evidence to maintain balance: Longman v The Queen.¹¹

This ground of appeal must fail.

Comment as to the appellant's "concession"

Mr Maher's next contention is that when the learned judge pointed out to the jury that the appellant denied the allegations, reminding them "if it didn't happen that really is the only sort of answer an accused person could give", his Honour added:

"But, ladies and gentlemen of the jury, he did say, he did make the concession you might call it, that from time to time he may well have had some of the littlies on his knee bouncing them up and down in front of the class."

The appellant contends that this was a significant mis-direction which was very prejudicial to the appellant; it amounted to the judge characterising an innocent act as "a concession" in a trial of serious criminal charges.

Whilst the words "concession you might call it" were perhaps not felicitously chosen, it is plain that the primary judge was not suggesting that the appellant's evidence that he may have innocently bounced some children on his knee, was in any way an admission supporting conduct the subject of the charges. In the context of the whole summing-up, the use of the expression cannot be said to have deprived the appellant of a fair trial or caused a miscarriage of justice.

This ground of appeal must also fail.

The Longman direction.

The appellant contends that the learned primary judge failed to adequately warn of the dangers of convicting because of delay in the complaints being made: Longman v The Queen.¹² His Honour gave the following direction:

"In this case some 35 to 37 years have passed since the events complained of. With the exception of the complainant, [R], all of the evidence is uncorroborated. Human experience has shown us that human recollection and particularly the recollection of events occurring in childhood is frequently erroneous and liable to distortions by reason of various factors. The likelihood of error increases with delay and there was in this case, for instance, in respect of all of the complainants lack of specificity as to the dates. Therefore, the defence was unable to examine the circumstances of the alleged offence with respect to particular dates. It may not be apparent to you, but there is a very relevant factor here. That factor is the accused's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution.

Had the allegations been made soon after the events it would have been possible to explore in detail the alleged circumstances attendant upon their occurrence and perhaps to adduce evidence throwing doubt on the complainant's story or stories or confirming the accused's denial. After more than 35 years that opportunity has gone. The fairness of the trial has necessarily been impaired by the long delay. I must tell you, that as the evidence of each of the complainants could not be adequately tested after the passage of 35 years, it would be dangerous to convict on that evidence alone unless you scrutinise the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, are satisfied of its truth and accuracy. That goes to all of the counts before you including the counts where there is evidence capable of being corroborative of [R's] version.

However, having undergone that task, that is [to] scrutinise the evidence with great care, considering the circumstance relevant to its evaluation and paying heed to the warning that it is dangerous to convict on that evidence alone you may well still be satisfied that a charge, some of the charges, or all of the charges are made out, in which case you are obliged to convict. Having gone through that task and you have a reasonable doubt and then, of course, you are obliged to acquit.

One thing I should say to you is that if these events did not occur there is really only one answer that an accused person can give to a suggestion that they did and that is a denial. That is they truly did not occur and that, of course, is what the accused did."

Later, his Honour directed the jury as to the lack of fresh or recent complaint in these terms:

"I direct you as a matter of law that a complainant's delay in making a complaint in cases of a sexual nature has no probative value as to any fact in contest but goes merely to the credibility of the complainant. Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation of a failure or delay. On the other hand, a recent complaint or fresh complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit.

In each case the complainant has given an explanation for the delay. They were substantially fear of D'arcy and the fact that these things weren't talked about at the time, meaning the early 1960s."

Shortly before the jury retired to consider their verdicts, the learned primary judge repeated:

"I can't gauge or make up your mind for you. I hope I have not done so. The accused says in quite clear terms these things did not happen. It has been a long time since the complaints were made, two years. It has been an even longer time since the events occurred, 35 to 37 years ago. That is why I said to you by way of a warning that when considering the evidence the fairness of the trial has been impaired necessarily by the long delay, that the evidence of each of the complainants could not be adequately tested after the passage of 35 to 37 years, that it would be dangerous to convict on that evidence alone unless you scrutinise the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning are satisfied of its truth and accuracy."

The judge properly directed the jury that delay in making the complaints was relevant both to the credit of the complainants and that the appellant may have been prejudiced in attempting to meet the allegations: Graham v The Queen.¹³

The appellant nevertheless contends that the learned primary judge should have specifically directed the jury of the following considerations relevant to the evaluation of the evidence of the complainants because of delay: the removal of and alterations to the classroom building; the loss of the chance to collect or use DNA medical evidence or other forensic weapons; and the breadth of the dates alleged in the indictment (28 January 1963 to 1 July 1965).

I do not understand Longman or Crampton to require that a judge refer to every possible prejudicial matter arising from the delay in warning the jury of the effect of delay on the fairness of the trial. The direction sufficiently dealt with the lack of specificity as to dates and was otherwise adequate.¹⁴ That direction was not diminished by the primary judge's reference to the absence of any suggestion of collusion; nor is a balanced direction diminished by judicial reference to the explanation for the delay in complaining: see Longman.¹⁵ It was not incumbent upon the judge to direct the jury that the complainants' fear of the appellant did not explain why this would prevent them making a complaint after they left the school. Onerous as is the role, a trial judge is not required to warn of every matter that could possibly be conjured up by defence counsel in favour of an accused person.

Mr Maher submits that the learned trial judge should have specifically warned the jury of the effect of delay on the complainants' memory especially the complainant S, whose cross-examination included the following passage:

"Were your underpants damaged or torn at all? -- I have no picture of them.

Are you saying you don't have a memory one way or the other? -- I said I don't have a picture. It is not in my mind.

Does that mean you don't have a memory? -- I don't know what it means, Mr Macgroarty. I don't have a picture. I only work on pictures. I don't have memory. I have pictures.

You can't really relate these pictures to memories; is that what you are saying? -- They are just pictures.

But you can't relate them to memories; is that right? -- That is right. They are just pictures.

I think we know what you mean. …"

S maintained during her lengthy cross-examination that the appellant committed the offences upon her as charged in the indictment. Her turn of phrase describing her recollections as "pictures" rather than "memory" (which appears to have been accepted by defence counsel) did not require any special direction. From a reading of defence counsel's address which the State Reporting Bureau has provided to me, this turn of phrase did not feature significantly at trial. The experienced defence counsel at trial did not ask for any re-direction. The judge's warning as to the danger of flawed or distorted childhood memories and delay set out in [27] of these reasons was adequate to alert the jury to the dangers of such evidence.

Mr Maher contends that in circumstances where R and S relied on the appellant's authoritative mode of teaching and the use of a dunce's caps and corporal punishment as a reason for complying with and not complaining of his conduct, the trial judge should have warned the jury that there was evidence that did not support that claim and that this should cause the jury to have a serious doubt about the reliability of the remainder of those witness' evidence; this is one of the few opportunities the defence has to test the complainant's reliability and accuracy.

The learned primary judge made the following relevant comments to the jury:

"There is evidence, ladies and gentlemen, of whether there is a dunce's cap there or not, whether there was a cane. I don't know whether you can come to any conclusion about those beyond reasonable doubt because there appears to be evidence both ways in respect of those things. There appears to be evidence both ways in respect of whether he did or did not administer corporal punishment. There appears to be evidence about a peach tree or whatever sort of tree it was, again the contrary. In respect of all these things the accused makes a denial. In reality you have to gauge the evidence and see what you accept is true or not."

This comment was balanced; it reminded the jury of the variations in the evidence and properly left the matter to them, suggesting it was difficult to reach a conclusion on these matters beyond reasonable doubt. It is hardly surprising that one witness would vividly recall the use of a dunce's cap and/or corporal punishment (especially if the recipient) whilst another (who was not so punished) may not. No re-direction was requested.

The learned primary judge gave a direction which adequately warned the jury of the effect of delay on the fairness of the trial and the consequential danger in convicting upon each complainant's evidence without careful scrutiny of it. This ground of appeal must fail.

The direction as to the burden and standard of proof and the drawing of inferences

The appellant submits that the judicial direction on the presumption of innocence was perfunctory. The learned primary judge gave the usual directions as to the standard and onus of proof which he repeated on many occasions throughout the summing-up, but particular objection is taken to the following italicised comment which I set out in context:

"I do not propose to explain to you, members of the jury, what reasonable doubt means other than to say this: that if at the conclusion of your consideration of the evidence in respect of each charge against the accused you have a doubt which is a reasonable doubt, then it is your duty to find the accused not guilty of that charge, or to put it another way, to acquit him. You do not conjecture up a doubt just to excuse yourself from performing the unpleasant duty of bringing in a verdict of guilty against a fellow citizen. And in saying that I recognise it must be an unpleasant duty, but, as I have said, if you have a doubt which is a reasonable doubt, then it is your duty to find the accused not guilty of that charge. On the other hand, if you have no reasonable doubt as to his guilt, equally of course, it is your duty to find him guilty; that is to convict him.

Proof beyond reasonable doubt is not an impossible standard of proof."

The italicised comments were perhaps an unnecessary elaboration of the conventional direction: see R v McNamara.¹⁶ The comments are not, however, wrong; on analysis they do not attempt to explain the meaning of the words "reasonable doubt" and do not undermine the clear direction as to the standard and onus of proof given by the judge at this time and repeated on many occasions throughout the summing-up.

The appellant next contends the trial judge erred in referring to the appellant's "guilt or innocence". In giving a direction on the use of relationship evidence¹⁷ his Honour commented:

"That evidence and the evidence in relation to the other counts in these trials can be used by you in determining the accused's guilt or innocence on the count you are then considering, only if you are satisfied that those matters occurred and that you are so satisfied beyond reasonable doubt."..(my emphasis)

Later in the summing-up, his Honour also said:

"A fundamental and obvious matter when you are considering the guilt or innocence of the accused on each charge is your view of the evidence of each of the complainants. At the outset I make it very clear to you, you cannot be satisfied beyond reasonable doubt of the guilt of the accused on any one count unless you are satisfied beyond reasonable doubt that the complainant on that count was an honest and accurate witness. That is the bottom line for you, the bottom line proposition. Before the accused can be found guilty on any count you must be satisfied beyond reasonable doubt that the complainant who gave evidence in support of that count was a witness of truth and substantial accuracy. (my emphasis)

Despite using the term "guilt or innocence" instead of "guilty or not guilty" in context, the learned primary judge made it clear on many occasions, that the jury must be satisfied of the relevant complainant's evidence beyond reasonable doubt before convicting on any charge; nothing turns on the use of the words "or innocence". The jury can have been under no misapprehension as to the onus and standard of proof. His Honour appropriately reminded the jury of this yet again immediately before they retired to consider their verdicts.

Mr Maher also submits that the learned primary judge failed to adequately direct the jury as to the drawing of inferences, first because the judge did not tell the jury that all reasonable hypotheses consistent with innocence must be excluded before guilty verdicts could be returned.

The judge told the jury they were entitled to draw inferences reasonably and rationally open from credible evidence accepted by them; if more than one inference was open they must draw the inference most favourable to the appellant. The charges did not turn solely on circumstantial evidence, but on the credibility of the direct evidence of the complainants: cf Shepherd v The Queen.¹⁸ The direction embraced by Mr Maher was not necessary in this case.

The appellant's second contention as to inferences is that the judge ought to have directed the jury that intermediate facts indispensable to an inference of guilt must be proved beyond reasonable doubt, namely the claims by some complainants of corporal punishment and dunce's hats and the location of the offences. Although these facts were important in testing the credibility of the complainants they were certainly not intermediate facts indispensable to an inference of guilt which required proof beyond reasonable doubt before an acceptance of that complainant's evidence beyond reasonable doubt. No such direction was necessary or appropriate in this case.

Mr Maher's final complaint about the directions as to burden and standard of proof is that the judge commenced his summing-up with the words:

"Ladies and gentlemen, the time has come when you and I, who together constitute this court, consider quite dispassionately the evidence which has been adduced in this court and for you ultimately to consider your verdicts." (my emphasis)

As I understand the contention, it is that the jury may have been misled into thinking they must consider the judge's view of the facts in determining their verdicts.

In the light of the careful and proper direction to the jury discussed in the latter part of para [19] of these reasons, it is inconceivable that the jury would have felt obliged to follow whatever they perceived to be the judge's view of the facts.

It is again significant that experienced defence counsel did not apply for any re-directions on these matters.

This ground of appeal must also fail.

The directions as to uncharged acts and propensity

The appellant contends the learned primary judge failed first to adequately direct the jury that evidence of uncharged sexual acts relating to a particular complainant could only be used in considering the counts relating to that complainant and not others; second, that evidence of uncharged sexual acts could not be substituted for the specific activity charged; and third, that the jury must not reason from the evidence of uncharged acts that the appellant was the kind of person likely to have committed the acts charged.

The learned primary judge's direction on this topic was as follows:

"There is one exception to that rule, that the evidence in one trial is not evidence in the others and vice versa, the evidence in those trials is not evidence in that one. In this case in all of the cases except the complaints made by [S] evidence has been admitted of what I might call uncharged acts. You recall [B] said, by way of example, the assaults on him occurred once or twice a week in much the same manner. You recall that [R] said that he put his finger in her vagina on a number of occasions other than the ones which are charged. In each of the three cases involving [R], [S] - sorry, [R], [B] and [E] there is that sort of evidence; that is evidence which I call evidence of uncharged acts.

What use can be made of that evidence? I will direct you accordingly. The evidence of those other acts of a sexual nature is not the subject of a specific charge and cannot be used by you as probative of the charges you are considering; that is the counts on the indictment. It is placed before you by the Crown for one reason and you can only use it for that purpose. The Crown says the evidence shows the true nature of the relationship between the accused and the complainants. In other words, as Mr Bullock put it to you, some indication that the counts which are charged did not just occur out of the blue, so to speak. The Crown says the evidence shows the true nature of the relationship between the accused and the complainants. In the three trials, I will call them, involving [R], [B] and [E], there is such evidence. That evidence and the evidence in relation to the other counts in those trials can be used by you in determining the accused's guilt or innocence on the count you are then considering, only if you are satisfied that those matters occurred and that you are so satisfied beyond reasonable doubt. (my emphasis)

You must consider each count against the accused separately. It would be quite wrong for you to consider guilt or innocence with respect to one or two counts and then justify the verdicts on the rest - the result of your verdicts on those one or two counts. Each count has to be considered separately and it follows, of course, that your verdict may be different on different counts."

Later his Honour added:

"There are a number of complaints here and in respect of the matters involving [R], [B] and [E], might I say to you that when you are considering the evidence of the uncharged acts and the other counts in respect of each of those complainants when you are considering a particular count, there is a danger about this sort of evidence and that is a danger of reasoning that because the accused did this once or twice he did it on many occasions he must have done it on the occasions that are the subject of the charge. There is always a danger in that sort of loose thinking. You must not reason that the evidence leads us to the conclusion that the accused is the kind of person likely to commit those crimes. Do not think that your task - do not forget that your task is to consider each count separately and ask with respect to each specific charge, are you satisfied, or 'Am I satisfied beyond reasonable doubt of the guilt of the accused as charged on that occasion?' You must not say, 'We are satisfied because he did it on some other occasion; therefore, we think it is likely that he did it on the occasion charged.' You must not say on the evidence, 'We are satisfied that the accused has done this sort of thing from time to time and thus we are satisfied he did it on a particular occasion that is the occasion you are considering.'

General evidence is no substitute for specific evidence concerning each separate charge. It is impermissible and totally wrong to reason that because the accused may have done something wrong on some other occasion or occasions he may have done it on a particular occasion charged by the count under consideration, which leads me to what I said to you first off after lunch, or nearly first off.

You must consider each count separately. Then come to a conclusion whether or not the Crown has proved its case in relation to that count beyond reasonable doubt, whether you accept that the witness involved in relation to that count - the complainant particularly - is a witness of truth and substantial accuracy." (my emphasis)

During the course of the jury's deliberations, they asked for assistance as follows:

"Your Honour, could you please explain in more detail how to separate into four trials when we have heard all the evidence as a whole. What can be used from each? P.S. we are having extreme difficulty trying to eliminate what is and is not available … said by one and can't be used by another."

The judge gave the following explanation by way of example:

"For instance, the evidence [R] gave about the accused's conduct is admissible only in respect of the counts involving [R].

It is not admissible in the other three trials, so to speak, or the other three groups of counts. Likewise, what [S] said in her trial is not admissible in the other three.

A better example might be in the case of [B], the only evidence is [B's] evidence himself. You see that? And the case of [R] another good example is that the evidence of Mrs Sutcliffe, Mrs Jackson and Ann Bury, what they saw on separate occasions in the library involving the complainant [R] and D'arcy is evidence only in the [R] complaint's trial."

These directions made it abundantly clear to the jury first, that the evidence of uncharged acts could only be used to show the relationship between the complainant who gave the relationship evidence and the appellant.¹⁹ Second, the relationship evidence could only be used as relationship evidence in the trial of the counts involving the complainant who gave that evidence; third, that evidence of uncharged acts could not be substituted for the specific activity charged and, fourth, that the jury must not reason from the evidence of uncharged acts that the appellant was the kind of person likely to have committed the acts charged. The judge also directed the jury that they could only use the evidence of relationship if they were satisfied of its truth beyond reasonable doubt.

There was no application to exclude the evidence of uncharged acts. Indeed, a perusal of defence counsel's address to the jury indicates that he emphasised the uncharged acts as demonstrating the implausibility of those complainants' versions. Defence counsel did not request a re-direction.

This ground of appeal must also fail.

Directions as to the appellant's evidence

The appellant contends the trial judge's directions were inadequate in that they failed to direct the jury that the appellant was not a compellable witness; that by giving evidence he did not assume any onus of proof; by giving evidence he exposed himself to cross-examination; he was likely to be under more strain than other witnesses because he was the accused and the jury could use the fact that he gave evidence on oath in favour of his credit. The appellant submits the judge was required to give these directions, relying on the South Australian case of R v Robinson and Tiplady.²⁰ At that time in South Australia, an accused had the option of making a statement from the dock; that case turned on the distinction between giving evidence and making a statement from the dock. King CJ, with whom White and Millhouse JJ agreed, noted:

"… a trial judge is not required to commend a witness for having given evidence on oath. He is perfectly entitled, if he sees fit, to say nothing by way of commendation, or, indeed by way of reference at all to any merit or demerit which might be involved in the course which the accused person adopts in the presentation of his defence."²¹

The learned primary judge gave the following relevant directions:

"The onus of proving the charges of rape and indecent dealing does not shift to the accused at any stage. He does not have to prove anything. And this is so even in such a case as the present where the accused man went into the witness box and gave evidence. He has not thereby accepted any onus to disprove his guilt. What he said in the course of evidence becomes evidence for your consideration, but it does not mean that the onus has shifted from the Crown. You can disbelieve the accused in everything he said in the witness box. It does not follow that therefore he is guilty and that the Crown has proved their case against him. The onus still lies with the Crown to satisfy you of his guilt of the offence."

Later, when informing the jury that they may look at the demeanour of witnesses in assessing credibility, his Honour noted:

"You had the chance of observing the accused in the witness box and how he gave evidence. What impression did he make upon you? Did you think he was telling the truth? Because, you see, you assess his evidence along with the other evidence in the trial bearing in mind there is no obligation, no onus on him to prove his innocence. At all times through this trial he is presumed to be innocent of any charge which is laid against him."

Although the learned primary judge did not specifically tell the jury the appellant did not have to give evidence, they must have been aware that the giving of evidence was optional after hearing him called upon in terms of s 618 Criminal Code.

The directions emphasised to the jury that at no time did the appellant assume any onus of proof. A trial judge is not required to point out to the jury that in giving evidence an accused has exposed himself to cross-examination, was likely to be under more strain than other witnesses because he was the accused or that the giving of evidence on oath was something the jury could consider as his credit. This ground of appeal also fails.

Should the jury have been discharged?

The appellant contends that the jury should have been discharged because of the combination of the following. First, defence counsel failed to cross-examine the complainant S as to why a complaint of rape was only raised by her for the first time in her second statement to police. Second, defence counsel put to the complainant R matters incompatible with a denial of count 2. Third, defence counsel elicited highly prejudicial evidence of uncharged acts from the complainants during cross-examination and made them recount details of the alleged offences, reinforcing their evidence. Fourth, defence counsel failed to put to the complainant E that there was no dunce's cap at the school. Fifth, the Crown failed to call Detective Hanlon who took S's first statement. Sixth, the appellant was prejudiced by defence counsel's failure to apply for separate trials. Seventh, defence counsel failed to object to the admission of uncharged acts, and, finally, defence counsel failed to object to the prosecutor's cross-examination of the appellant.

The combination of these allegations effectively amount to a complaint of incompetence of counsel, for no application for separate trials was made and nor was there any application for a mistrial. Even where valid criticism can be made of defence counsel's conduct of a criminal trial, it does not follow that there has been a miscarriage of justice: R v G.²² Counsel's conduct must amount to flagrant incompetence for it to constitute a miscarriage of justice: R v Paddon.²³

The first and fifth complaints can be dealt with together. Mr Macgroarty, who appeared for the appellant at trial, did not question S as to whether she made two statements; the prosecutor submitted (in the absence of the jury) that, unless this was put to her, Mr Macgroarty could not submit to the jury that she had made two statements. Mr Macgroarty pointed out that police officer Kerlin gave evidence that S had given two statements and only in the second statement did she for the first time make allegations about counts 17 and 18; as the prosecutor did not raise that matter with S, he did not think it was in issue. The judge rightly told Mr Macgroarty that it was his responsibility to raise the matter with S, who had been excused. Mr Macgroarty wished to address the jury only as to the evidence he adduced through police officer Kerlin as to S's two statements. The judge indicated that was appropriate but if that submission were made the prosecutor was entitled to say to the jury that S was not asked about this nor given an opportunity to explain. Mr Macgroarty appeared content with that ruling and did not ask for S to be recalled; nor did he ask for the police officers who took S's first statement to be called.

Mr Macgroarty is a senior and experienced defence counsel and there is no reason to conclude that he made his decision to conduct the case in this way without careful consideration. He may have had good reasons for not cross-examining S on this point. His Honour's ruling did not prevent him from addressing the jury as to the effect on S's credibility of her failure to complain of serious matters until her second statement. I am not persuaded the appellant's case was harmed by this omission.

As to the second complaint, in putting to R "you see, you did go down and play, didn't you?", defence counsel was plainly cross-examining R in an attempt to establish the implausibility of her claim that she went downstairs to play immediately after the appellant had behaved so offensively. It is fanciful to propose that in adopting this line of questioning Mr Macgroarty was accepting the commission of the offence; this was not suggested during the trial and it is implausible that the jury would have so concluded.

As to the third point, whilst some counsel would adopt a different and more subtle approach, it is common for complainants in sexual cases to be asked to repeat their allegations in an attempt to find some inconsistency in versions to attack the witnesses credit. If, in the end, this tactic was not successful and elicited only prejudicial evidence, no proper complaint can now be made. Defence counsel in his address made much of the fact that R, B and E claimed that the appellant was regularly performing sexually improper acts upon them, which were not observed by others, and so, it was argued, their claims were improbable and the jury could not be satisfied of the complainants' credit beyond reasonable doubt.

As to the fourth point, defence counsel cross-examined E as to whether she had ever seen a dunce's cap at the school. E said she had, but had not noticed anyone wearing it. When asked whether she had seen R wearing it she said she could not recall. In the circumstances, it is difficult to see that any significant advantage to the appellant could have been gained by specifically putting to her that there was no dunce's cap at the school during the period when the appellant was the teacher.

As to the sixth complaint, the appellant was represented by experienced lawyers. No application was made for separate trials. This may have been because the appellant's trial lawyers determined that there could be significant advantage for the appellant in comparing and contrasting the evidence of the four complainants on various matters, for example, the claims by R and S that the appellant committed serious offences in front of the class without other students noticing anything untoward, was on its face so extraordinary as to discredit R and S. These submissions were made in the defence address. The appellant, through his lawyers, chose to conduct his case in this way; he cannot now on appeal, by changing his lawyers, simply adopt a different tactic. The judge was not required in this case to order separate trials, especially in the absence of any application. There may well have been another tactical reason for the absence of an application for separate trials; a formal ruling that the charges were properly joined would mean that the similarity between the incidents described by the four complainants in terms of time, place and nature was sufficient to use the evidence in each case as similar fact evidence in the other: see Pfennig v R,²⁴ R v O'Keeffe,²⁵ R v Pryor,²⁶ and R v Delgado Guerra.²⁷ In this trial, the appellant had the advantage of a direction limiting use of the other charges to relationship evidence. There is nothing in this complaint.

As to the seventh complaint, defence counsel can hardly object to the admission of uncharged acts which emerged in his own cross-examination and the evidence of uncharged acts led in chief was properly admissible. Defence counsel used the evidence of uncharged acts to attack the plausibility of the complainants R, B and E. This complaint is without merit.

The appellant's final complaint under this ground of appeal is that the prosecutor was not entitled to cross-examine the appellant by suggesting that he was not truthful as to matters when some prosecution witnesses had supported the appellant's version of that matter. For example, the prosecutor suggested to the appellant, consistent with R's claim, that there was a dunce's cap in use in the classroom when other prosecution witnesses had no recollection or denied the presence of a dunce's cap. The prosecutor properly put these matters of which evidence was given by complainants to the appellant. The differences between the evidence of prosecution witnesses was highlighted to the jury.

None of these matters, either alone or collectively, warranted a mistrial. The matters raised by Mr Maher did not require the judge to consider or to grant a mistrial, even had there been an application. It is not ordinarily possible for a trial judge to understand the reasons for the line of cross-examination undertaken by defence counsel and it would only be in the plainest of cases that a judge would grant a mistrial because of the defence conduct of the case without an application from a party. In any case, the appellant has not established any of its complaints against defence counsel. This ground of appeal must also fail.

Did the judge make unfair comments?

The appellant submits that the primary judge caused the trial to miscarry, first in commenting that "It wasn't uncommon in those days" for a student to be put in the corner with a dunce's cap on the head. Second, the judge prevented defence counsel from testing the memory of the complainant S as to when she commenced at the school. Third, the judge improperly commented in the summing-up (in the context of a defence submission as to the unlikelihood of the appellant brazenly committing these offences) that if a school inspector or Education Department officer was coming to the school, "one would think [the appellant] would probably hear the car coming".

As to the first contention, this comment was made by the judge on the first day of the trial before it was apparent to the judge that the use of a dunce's cap was contentious. Whilst it would have been better had judge not made the comment, which was effectively evidence, it was not repeated during the course of the trial or in summing-up. The comment did not go so far as to suggest that there was a dunce's cap in the classroom. In addition, the cross-examination of the complainant R as to the dunce's cap went, in part, to the fact that she had not given that evidence in chief and that as a result her memory and credibility were questionable. The judge's gratuitous comment did not detract from that point of the cross-examination. In the summing-up, his Honour raised the evidence of the dunce's cap, pointed out there was evidence both ways and commented, "I don't know whether you can come to any conclusion about those beyond a reasonable doubt because there is evidence both ways." Whilst the judge's comment was an error, it was a modest one when looked at in the full context of the trial and summing-up. The comment cannot possibly have resulted in any miscarriage of justice: s 668E(1A) Criminal Code.

As to the second point, the judge said:

"Mr Macgroarty, does it matter? We know when she started there from the records. Can't we start on that basis?"

The records established that the appellant arrived as a teacher at the school in June 1963 and the complainant arrived as a student in October 1963. The witness had already told defence counsel prior to the questioning that she did not know when she started at the school. Mr Macgroarty said he wished to follow this line of questioning to establish how long after she commenced at the school she claimed the appellant first touched her sexually. Mr Macgroarty was not precluded from following that, or, indeed, any line of questioning. The appellant was not treated unfairly in this regard.

As to the final complaint under this ground of appeal, the judge was entitled to comment on the facts: see s 620 Criminal Code. As I have already noted, the judge elsewhere made it clear to the jury that the facts were entirely matters for them alone.

These three contentions neither alone nor collectively justify the granting of the appeal.

Mr Maher contends that an aggregate of these alleged defects and errors caused the trial to miscarry. I reject that contention for the reasons I have given.

Unsafe and unsatisfactory

Because of the unusual features of the complainants' allegations, it is necessary to set out the facts in some detail to fully consider the reasonableness of the verdict.

The evidence

(a)Police evidence

Police officer Kerlin was the main investigator. Since the time of these allegations, the State School has been moved to a Heritage Park and is not in the condition it then was. He took the statement of complaint from R; Detective O'Brien took a statement of complaint from B and S. S's first statement, taken by police officers Bruce and Hanlon in 1998, did not contain allegations of counts 17 and 18. He took a statement of complaint from E, who asserted that the appellant indecently dealt with her in the presence of Rynarta Richards. E's sister, Marilyn, was interviewed and had no relevant information. Susan Russell was located but was recovering from a serious medical condition and was not further interviewed.

(b)Counts 1-4

R, now a kindergarten teacher, attended the one-teacher State School from Grade 1 in 1962 until Year 7. She thought the appellant was her teacher in Grade 2 and 3. She was scared of him; he was a strict disciplinarian who often hit her with a blackboard ruler, sent her to the corner, and pulled her ears. Other children called her teacher's pet because he gave her jobs like emptying the rubbish bins or putting chalk out. She remembers standing beside the appellant to show him her work; he put his hand up the back of her leg into the elastic of her pants, placed a finger into her vagina and moved it (count 1). She was shocked and did nothing. As she left school that afternoon, he said something like "Don't tell your parents. Don't tell your mother."

The next incident occurred when she was alone in the classroom, she thought at lunchtime. The appellant pulled her pants down and she was straddled over the seat. She heard him unzip his pants and felt him press his body onto hers. He rubbed himself up and down her body from the navel to the vaginal area; his penis rubbed against her and it felt hard. He wiped his face with a handkerchief and then got off her. She then saw his penis; it was the first time she had seen a man's penis. Afterwards, the appellant sent her downstairs to play (count 2).

On another occasion she was in the storeroom with the appellant. It was fairly dark. He stood behind her with his hands on her shoulders and rubbed his pelvic/penis area up and down against her bottom whilst they were both fully clothed. Other children were outside the storeroom in the class room (count 3). He touched her on other occasions in the storeroom.

One day she was sitting on the appellant's lap in the library. He had his hands on her shoulders and thrust his pelvic/penis area into her bottom (count 4). This conduct occurred on other occasions in the school room, at the front desk, in the library area and once at her parents' house. She told no-one about these incidents because she was scared and feared the appellant would punish her more at school; she had a sense that the conduct was wrong and later in life she felt embarrassed about it.

The appellant sometimes put a dunce's cap on her head when she was put in a corner. In cross-examination she recalled for the first time that sometimes in the storeroom the appellant stroked her down the front of her body. She did not mention this before because she tried to confine herself to the incidents which were "very, very clear" in her mind.

In 1998 she was contacted by police officer O'Brien and subsequently made a complaint about these matters.

Maxwell Richards attended the School whilst the appellant was teacher. He remembered R sitting on the appellant's lap in the classroom at the teacher's table on two or three occasions. He also saw R go to the back of the library with the appellant for about 10 or 20 minutes; the door was open. The appellant was tickling R on each side of her waist causing her to jump up and down, giggle and laugh. He did not see a dunce's cap at the School; nor did he see the appellant punish R with a cane or a ruler.

Jean Porter was taught by the appellant at the State School. The appellant used to touch R a lot by rubbing her arms and putting his arms around her. R frequently spent morning tea and lunchtime in the library with the appellant. The children called R teacher's pet because of the time she spent with the appellant. Another student, Kevin Russell, had gouged a small hole in the back of the classroom wall so that it was possible to peep through to the library. On one occasion, when R was about eight or nine, she peeped through the hole and saw the appellant with R sitting on his lap; he had his hands on her thighs just under the hem of her skirt and he was rubbing his hand up and down the top of R's thigh. She had no recollection of R being punished with the cane or ruler.

Ms JB, the sister of B, attended the State School whilst the appellant was teacher. One day, with either Susan Russell or Marilyn E, she went to get some balls from the storeroom; they had to pass through the classroom and library. She saw the appellant in the library with R between his legs. He had one hand up her blouse and the other down the front of her shorts. When the appellant saw them he told them to get out and they ran from the room. R spent a lot of time at lunchtime upstairs with the appellant and was considered the teacher's pet. The appellant hit them with a three foot ruler on the back of the legs, for example, if they made spelling mistakes. She did not remember a dunce's cap. She did not speak to her mother about what she had seen because "it just wasn't talked about".

Mrs S, another sister of B was taught by the appellant at the School and remembered R. One day she went to see the appellant in the library; the appellant had R on his lap; his right hand was on the upper part of R's right thigh under her dress; the appellant was smiling and when he saw her he looked surprised.

E, the complainant in counts 9-11, remembered R as a student at the school; the appellant called R into his office two to four times a week; the door was always closed. She remembered the small hole in the office wall made by other students. Once she briefly looked through and saw the appellant with R; R was facing him and her dress was crumpled and up round her waist area; the desk prevented any view below the waist.

Leonard Russell attended the State School from 1962 until he finished his primary schooling. He remembered R; she was always sitting on the appellant's lap, mostly at the desk in front of the class. During lunch breaks she was normally upstairs with the appellant.

Rodney Russell attended the State School when the appellant was teacher. He also remembered R as the teacher's pet who used to sit on the appellant's lap while he marked the other students' work. This occurred two or three times a week.

Mr R, the younger brother of R, was also taught by the appellant at the State School. The appellant kept a bamboo cane in a corner of the room. One day he went upstairs to get some sporting equipment and saw the door to the library was ajar; he saw his sister on the appellant's lap; the appellant had his hands under her elbows and he was lifting her up and down on his lap. He only stayed for about 30 seconds. In those days teachers commanded considerable respect and ruled with the cane. He did not discuss the matter with his sister. He saw the appellant bouncing another girl on his lap or knee but he was not sure who it was; he did not see anything occur between the appellant and S, B or E.

(b)Counts 5-8

B commenced at the State School in Grade 1 in 1960 completing his primary schooling there in 1966 and was taught by the appellant in 1963. The first time any improper behaviour occurred, the appellant called B into the library and rubbed himself against B for a couple of minutes, like a bear hug from behind (count 5). This then occurred regularly once or twice a week.

On another occasion, the appellant behaved in the same manner in the storeroom at the back of the school with the door open; the appellant had an erection; they were both fully clothed and the incident took two or three minutes (count 6).

On another occasion in the library in about 1964 the appellant held him in a bear hug from behind, rubbed himself against B and then lifted B onto him as he lay back on a desk in the library. The appellant rubbed himself up and down against B for two or three minutes; they were both fully clothed; he could feel the appellant had an erection. The appellant let him go and he returned to the class room (count 7).

One lunchtime, the appellant sent him to the store to buy the appellant a can of soft drink. He returned with the drink and the appellant sat him on his lap with his arms over B; the appellant lay down and placed B on top of him, rubbing the appellant's groin against B's bottom; the appellant had an erection. The appellant put his hand down B's shorts and B pushed his hand away with a bit of a struggle. The appellant released him and B left the room. The incident took about a minute or so (count 8). On the next occasion that the appellant tried to touch him he struggled and got away; the appellant did not repeat the conduct.

From that time his relationship with the appellant was not "real brilliant" and he would call the appellant names like "idiot", or "arsehole" in the hearing of others. He did not tell his parents or anyone else about this incident because it was not something he could talk about; the appellant was the teacher and he was the pupil; he was supposed to do what he was told.

R was a younger student at the school; the appellant would often call her into the library and the door was nearly always shut. Sometimes the appellant also called S into the library but not as often; again the door was closed.

In cross-examination he said these incidents occurred once or twice a week from about April 1963 until early 1965. The appellant did not cane him; nor did he remember anyone else receiving the cane. Students were sometimes disciplined on the backside with the blackboard ruler; he remembered a girl being disciplined in this way. He did not know there was a dunce's cap at the school. He had no recollection of knocking or rattling the library door when S was in the library with the appellant; he had no recollection of the appellant using a stick from a peach tree for discipline; he could not recall S sitting on the appellant's lap at the desk at the front of the classroom.

About two years ago he was contacted by Detective O'Brien and consequently made this complaint.

(c)Counts 9-11

E attended the State School in 1962 when she was in Grade 3. The appellant taught her when she was in Grade 5. On the first occasion he touched her improperly he called her into an office at the back of the school room to check her homework. He put his arm around her and rubbed his hands around her bottom and her vaginal area for what seemed a long time. She then returned to the other students in the classroom (count 9).

On another occasion she was in the storeroom when the appellant entered, pushed her against a wall and rubbed his penis area against her vaginal area whilst they were both fully clothed; this seemed to go on for a long time and she felt scared. The appellant finally stepped away and told her to leave the room: if she said anything she would be caned with the peach twig (count 10). The peach tree was in the school grounds and on occasions the appellant hit the boys with twigs from the tree.

On the final occasion, one sports afternoon, the appellant sent Rynarta Richards and her to the storeroom to get a ball. Whilst Rynarta was present he pushed E against the wall and rubbed his penis area against her vaginal area whilst fully clothed (count 11). He then acted in the same way towards Rynarta. He told them both that if they said anything he would cane them. The appellant touched her in this way numerous times, perhaps once or twice a week during the period that he was the teacher at the school. E saw a dunce's cap at the school but had no recollection of anyone wearing it.

Police contacted her and she made a complaint.

Rynarta Richards, a school friend of E, remembered R; R sat on the appellant's lap on a few occasions in the classroom behind the desk. She saw R bouncing up and down on the appellant's lap and laughing whilst waiting to be picked up at school by her mother. She could not remember being in the storeroom with the appellant and did not see the appellant doing anything improper to E. Nor did she see the appellant do anything improper to R or B. Significantly, her evidence did not support E as to count 11.

(e)Counts 12-18

S commenced at the State School, she thought, in Grade 4. In "the dark room"²⁸ the appellant put his hands on her shoulders and moved them down her body; he tongue-kissed her and she was scared; she remembered pain and fear and sticky stuff on her and in her pants but could not remember anything else (count 12).

On another occasion in the library or sewing room, she was facing the back wall leaning on the table; the appellant was behind her. He took her pants down and put his penis in her vagina as she lay on her front on the table. She slipped forward as he moved in and out and her hips kept hitting the edge of the table; it hurt. She could hear the appellant breathing and then it stopped. He turned her around; he had a handkerchief and she thought he wiped himself; she knew he wiped her; the handkerchief was all wet and soggy. He said something like, "That didn't hurt, did it? That's alright". She felt a lot of pain in what she now knows to be her vagina; it was like it was ripping her and that he was coming through to the front of her stomach. She then went down to the girls' toilets (count 13).

On another occasion, the appellant was sitting at the desk at the front of the class. She went up to him with a book. He indicated for her to come to the side of the desk to show him the book; the desk had no modesty panel. He pulled her down to sit on his right thigh. He unzipped his shorts. His penis which was not erect was sitting on the zip of his trousers. He put her left hand on his penis. She patted it, like you would a kitten, two or three times and he put his hand on hers. He then moved her hand up and down around his penis until his penis became hard. Then he placed both her hands on his penis. He put his handkerchief on her lap and she did not know what to do with it. She said, "The picture's blurry." He made her hands move up and down his penis which was covered by the handkerchief. She could hear him breathing and then the handkerchief was "all soggy". He went rigid in his chair. She took her hands away; they were "sticky and yucky". He cleaned himself up with the handkerchief, put his penis away and zipped up his trousers. She continued to sit on his lap for perhaps two or three minutes until she was allowed to go back to her seat. She did not know whether the children in the classroom had seen the incident or not and she was scared (count 14).

On another occasion, she took a book to the desk whilst everyone was still in class. The appellant touched her up and down her side and sat her on his right thigh again. He undid his zipper, took out his penis and placed her hand on it. She moved her hand up and down until it went hard (count 15). He pulled out his handkerchief which she put over his penis. She could hear him breathing; he lifted her so that she was sitting facing the class and the back of her thighs were on his thighs which were hairy and scratchy. He put his hands on her hips. Her hands were on the desk and he moved her up and down his penis. She still had underpants on but she could feel the tip of his penis touch her bottom and go through to the front of her vagina. He pulled her underpants half way down her thighs and tried to push his penis into her unsuccessfully. He pulled her legs apart so they were outside his and she was straddling him and her feet could not touch the floor. She was tippy toeing and balanced on the desk. He pushed her forward and his penis penetrated her; it hurt; he moved his penis in and out. His front was leaning on her back and he was breathing on her left shoulder; he went rigid. He shuddered and it was over. He wiped her; her skirt was all bunched up at the back; he pulled up her pants and she sat on his right thigh for a time before she went back to her seat. The handkerchief was wet and sticky and inside her vagina was also wet. She did not consent to this conduct (count 16). The whole class was present and she was in view of all the students.

She then described an incident as the "bad one" in the library. She was sitting on the rectangular high table, wearing just singlet and underpants, facing the classroom wall; her legs dangled over the edge of the table but did not reach the floor. The appellant touched her on the shoulders so that her back was on the table. He took off her underpants and put his mouth on her stomach; he licked and bit her; he put his mouth and tongue on her vagina and she thought he also bit her there. He unzipped his shorts. At some stage he put his hand inside her (count 17). She heard footsteps, a knock on the door and someone rattled the handle. The appellant walked to the door and said, "Go away" and the footsteps went back towards the classroom. The appellant then undid his shorts and she saw his penis which was hard and erect. He put his penis inside her vagina and his hands were touching her all over; he moved in and out and kissed her neck. She heard footsteps again and a voice which sounded like B. Whilst she was still lying on the table, the appellant opened the door and she heard him speaking to B. She dressed and went down the back steps to the toilet. When his penis was inside her vagina it felt like it was ripping (count 18).

S left the school to attend another State School when the appellant was still teaching at the school; perhaps Easter. She was away at the other School for nine months and then returned to the school, by which time the appellant had left.

S felt ashamed that these things had happened; she must have been a bad girl for someone to do that to her; for these reasons she did not tell her parents, and in any case was concerned that if she had told her father he may have caused trouble at the school for her mother, brother and sisters.

In cross-examination, she had no memory of any words spoken by the appellant. She felt that something else may have happened in the dark room but she could not remember. She had pictures of what happened but sometimes the pictures were blurry. At one stage, she had blood in her underpants but her mother, who is still alive, did not ask her about this. She could not recall whether her underpants were damaged or torn because she had "no picture of them". She said, "I only work on pictures. I don't have memory. I have pictures."

Police officer O'Brien contacted S at her home about these matters in about 1998 and she then made a complaint.

Mrs S, B's sister, was a student at the State School at the relevant time. She saw S sitting on the appellant's left side behind the desk facing the classroom; the appellant had his arm around her pulling her towards him; she was trying to lean away from him.

Jean Porter one day saw S in front of the classroom and the appellant pulled her down onto his lap; S, who was nine or ten years old, was very embarrassed. She did not recall the appellant lifting up S and putting her on his knee and his conduct was clear of the desk, completely in the open. She did not notice anything untoward.

(f)Other prosecution evidence

Kevin Russell attended the State School in his late primary years. He remembered R as one of the younger students; she was in about Grade 2. On day she was sitting on the appellant's lap and he had his arms over her on her lap. On another occasion, R was sitting on the appellant's lap on the back stairs. He recalled either making or enlarging a small hole with a compass in the shared wall with the library at the back of the classroom. Most times when the appellant was in the library with a female student he would look through the spy hole but he could not remember seeing the appellant do anything improper. Nor could he remember the appellant caning any students. He knew nothing of a dunce's cap. He did not see S on the appellant's lap with S moving up and down. He did not recall E or B being called out of the classroom to go to the library on a regular basis.

Mr LB, the younger brother of B, attended the School when the appellant was teacher. He remembered R who would sit on the appellant's lap at the desk in front of the class for a couple of minutes at a time. He also saw her sitting on the appellant's lap in the library. At one time he peeped through the hole in the classroom wall into the library and saw R sitting on the appellant's lap. R regularly went into the library with the appellant and the door would be closed for half an hour at a time. The appellant did nothing improper to him, nor did he see the appellant do anything improper to his brother, B; he did not see the appellant call B out to the library on a regular basis and did not hear B call the appellant names. He did not see the appellant do anything improper to S or notice any physical contact between them. The appellant disciplined students with a blackboard ruler and cane. He did not see the appellant cane R, hit her with a ruler or make her wear a dunce's cap; he could not remember anyone wearing a dunce's cap.

Ms JB did not recall B calling the appellant names and did not see any unusual behaviour between the appellant and S.

School records noted that S commenced at the school in Grade 2 in October 1963; she left the school in April 1966 and returned in January 1967 when she was in Grade 7. B commenced at the school in January 1961 in Grade 1 and left the school in December 1966 at the end of his Grade 8 year. E commenced at the school in January 1961 in Grade 3 and left the school in March 1965 during her Grade 7 year. R commenced at the school in Grade 1 in January 1962 and left the school in December 1968 at the end of her Grade 7 year.

(g)The appellant's evidence

The appellant gave evidence that in 1963 and 1964 he was the Grade 1-8 teacher at the State School. The school building was very, very hot and doors were kept open. Children were free to wander through the buildings at breaks. Sometimes adults would turn up at the school unannounced. At this time he was also captain of the Central Queensland cricket team.

The appellant denied all the allegations of improper conduct made against him. Occasionally, R may have sat on his lap; when small children came with a problem they would lean against him and he would pull them onto his knee. It is possible this happened occasionally in the library, classroom or perhaps after school; he may have tickled her or showed her some new school books, but nothing of a sexual nature occurred.

He denied any improper conduct occurred with B and nor did he hear B call him any abusive names.

He denied any improper conduct with E, whom he did not regularly call into the library or storeroom.

The appellant also denied any improper conduct with S. He was not aware of B coming to the library door at any time when he was in the library with S.

Corporal punishment of girls was not permitted; caning of boys had to be logged with a school inspector. He did not cane any students of either gender; he did not use a ruler to hit them on the legs; he did not hit them with a peach twig and there was no peach tree at the school; he did not pull ears; there was no cane kept anywhere in the school; he did not see a dunce's cap at the school.

Was the verdict unreasonable on any or all counts?

Each complainant was cross-examined at length but maintained their version of the offences given in evidence in chief. The evidence of each complainant was generally consistent with the particulars given and variations of any significance were highlighted to the jury by defence counsel. The learned primary judge in his summing-up explained to the jury that they could only convict the appellant on any one count if they were satisfied beyond reasonable doubt that the complainant on that count was an honest and accurate witness. Whilst it is difficult to comprehend that a teacher would so brazenly sexually interfere with young children and on one occasion penetrate with his penis a little girl of about nine years of age in front of the class, these matters were fully canvassed before the jury who had the important advantage of observing the complainants and the appellant give evidence both in chief and under cross-examination. The judge warned the jury that the fairness of the trial had been impaired because of the long delay in the making of the complaints and emphasised that it would be dangerous to convict on the evidence of the complainants unless after careful scrutiny the jury were satisfied of its truth and accuracy. His Honour also warned of the danger of distorted recollections, especially childhood recollections, which increases with delay. The evidence of the complainant R was supported by the evidence of other witnesses. The applications for re-direction made by the jury suggest they undertook their difficult task conscientiously. The evidence was heard over five days; the jury retired to consider the verdicts at 2.14 pm on the seventh day and returned with verdicts at 3.10 pm on the eighth day of the trial. The reasonableness of those verdicts, which were plainly open on a consideration of the whole of the evidence,²⁹ has not been shaken by any of the myriad points raised on appeal. This ground of appeal must also fail.

It follows that the appeal against conviction should be dismissed.

Sentence

The appellant contends that the sentence of 12 years for counts 13 and 18 and 14 years for count 16 are manifestly excessive.

Mr Maher submits that the learned primary judge erred in concluding that the appellant:

"… exercised [his] control, on the jury's finding, through fear and violence on them by the use of a cane. That must also have been accepted by the jury."

Whilst it is true that the jury did not necessarily accept that fact in returning their verdicts, the judge was entitled to conclude on the evidence, as he plainly did, that the appellant had exercised control over the complainants through fear and violence and in some instances, the use of a cane. The real question for this Court remains whether the sentence imposed is manifestly excessive.

Over one hundred references were tendered on behalf of the appellant, attesting to his good character apart from these offences. Mr Maher submits the sentencing judge did not give sufficient weight to these references in that his Honour noted that "the weight of the references must be tempered by the fact that they got to know you and respect you without knowledge of these crimes you have committed".

Whilst, as Mr Maher points out, the references were given in the knowledge that the appellant had been convicted of these offences, the learned judge's remarks remain apposite. Nevertheless, the references indicate that the appellant was of good character apart from the commission of these offences. The prosecution did not contend to the contrary other than to point out that there were outstanding charges but none which post-dated 1972. On the evidence before the sentencing court, the judge was obliged to take the appellant's good character since 1972 into account in sentencing, although when the gravity of the offending is looked at, that character evidence can only be a small mitigating factor in the sentencing process: see Ryan v The Queen³⁰ and R v L; ex parte Attorney-General.³¹ The learned sentencing judge's comments in themselves do not suggest however that his Honour failed to take into account the appellant's good character evidence. Again, the real question is whether, in the light of the character evidence, the sentence was manifestly excessive.

Mr Maher submits that the learned sentencing judge did not give sufficient weight to the extraordinary delay in this case which has resulted in the appellant being sentenced in his 60s instead of in his 20s; as a result, a period of imprisonment will be much more onerous for him, especially when coupled with the appellant's ill-health. The appellant suffers from high blood pressure and hypertension and has an aneurism of the aorta artery which needs to be closely monitored; a valve was placed in his heart in May 2000; this has pre-disposed him to clot formation which can produce strokes and made him vulnerable to infection so that he must be stringent about his dental and general hygiene; he is on a high dosage of the anti-coagulant Warfarin which must be monitored closely and which places him at risk through physical injuries; he requires a healthy low-fat diet and high levels of exercise. Additionally, he requires eye-drops for his bilateral lens replacement for cataracts, medication for gout and the monitoring of a prostate problem. Psychiatrist Dr Curtis, who has examined the appellant in prison, concluded that the combination of his mental and physical condition places him at risk of premature death; Dr Curtis predicts death in custody within the next five years.

Dr Falconer, Consultant, Health and Medical Services, Department of Corrective Services, addressed these issues in a report prepared for the respondent. The appellant's condition is able to be monitored in prison through specialists at the Princess Alexandra Hospital. The appellant, like other prisoners in need, will have a special low-fat diet and will have access to exercise periods and programs. Exposure to trauma can also occur outside the prison environment; at least in prison nursing care is close to hand. The appellant's chronic complex medical condition can be adequately managed in prison.

An offender's ill-health is a mitigating factor in sentencing when imprisonment will impose a greater burden on the offender than on others or where there is a serious risk that imprisonment will have a gravely adverse effect on his health: see R v Pope³² but cf R v B³³ where the court noted that the applicant's health was so parlous that he was no worse off in prison than at home. Although the appellant's complex chronic condition can be monitored adequately within the prison system, it seems very probable that prison will be a greater burden upon him than for someone in normal health; this is a mitigating factor in favour of moderation of the sentence.

Against those factors favourable to the appellant must be weighed the gravity of these very serious offences committed upon young children. As the sole teacher at a country school of about 20 students, the appellant had complete dominion over his charges at a time when the authority of teachers was usually accepted unquestioningly by children and the community. The offences constituted a shocking breach of trust and abuse of power. The appellant did not use any physical violence on the complainants but he did not have to for they were under his absolute power.

Although the complainants have got on with their lives, it is not surprising that victim impact statements reveal that the appellant's abuse has significantly and detrimentally affected their lives for the past 35 or so years.

The appellant has shown no remorse and cannot benefit from the important mitigating factors of an early plea of guilty or cooperation with the authorities.

The unique circumstances of this, fortunately, most unusual case make it difficult to find comparable sentences but the following two decisions of this court are of some assistance.

In R v Schloss,³⁴ Schloss was convicted after a trial of two counts of attempted rape, one count of rape and one count of procuring a child to engage in carnal knowledge. He was sentenced to five years imprisonment for the attempted rape convictions and 12 years imprisonment for rape and procuring a child to engage in carnal knowledge. The complainant was aged 10 or 11 years; her parents encouraged her to engage in sexual conduct with Schloss for payment. Schloss was 67 years of age and was in ill-health; he had no relevant prior convictions and claimed the sentence was manifestly excessive. The majority (Pincus JA and Muir J) noted that age was a mitigating factor: Cobiac v Liddy;³⁵ Yates,³⁶ Hunter,³⁷ Cheng Wah,³⁸ and Wilkinson.³⁹ The majority reduced the 12 year sentence to nine years imprisonment, otherwise confirming the original sentences. The offences involved only one complainant whereas this appellant interfered with four children; on the other hand, this appellant had the advantage of character evidence.

In R v Ezzy,⁴⁰ Ezzy was a school teacher and a lay preacher at a remote station in Queensland. He committed offences of one count of rape and 11 counts of indecent dealing with six children aged from four to 12 over a three year period. The offences involved masturbation and oral contact, rubbing the boys penises when they were asleep or during class. He forced the female complainant, who was also raped, to place her mouth in contact with his penis; he ejaculated into her mouth and her vagina although she did not recall that event. He was 29 years old and had no prior convictions. Unlike this offender, he sought help for his deviant behaviour, desisted of his own accord and pleaded guilty at an early stage. He was sentenced to eight years imprisonment which this Court did not consider excessive.

These cases suggest the sentences imposed of 12 years imprisonment on counts 13 and 18 and 14 years imprisonment on count 16 are manifestly excessive. The appellant should be given some leniency for his otherwise good character. Of more significance is his age and precarious health. A sentence of ten years imprisonment on counts 13, 16 and 18 sufficiently recognises the gravity of the appellant's conduct but more properly gives recognition to these moderating factors.

I would dismiss the appeal against conviction, grant the application for leave to appeal against sentence and allow the appeal by substituting a term of imprisonment of ten years on counts 13, 16 and 18. I would otherwise confirm the sentences imposed at first instance.

McPHERSON JA: I agree with the reasons of the President for dismissing the appeal against conviction. As to sentence, I am of opinion that, although imprisonment for 14 years is within the range of penalty that might in the proper exercise of a judicial discretion be imposed in respect of offences as serious and numerous as these, his Honour may have given insufficient weight to the poor state of the appellant’s health and the likely impact which the prison regime would have upon his prospects of survival.

I am not, however, persuaded that the appellant’s apparently unblemished record since the time when these offences were committed some 30 or more years ago can count for very much in his favour. If it had been known that he had offended in this way, it is certain that he would not have been nominated for or elected to Parliament, or appointed to the high offices of State which he has held, with all the advantages of status and remuneration that they entail. Instead, he has brought shame and disgrace on his party and the Parliament of which he was a member. Taking the risk, as he did, that he would one day be found out does not suggest to me that the appellant has ever had any real appreciation of or remorse for his serious criminal conduct.

In the result, I would, for the reason given, be prepared to reduce the sentence imposed on the counts of rape to an effective maximum of imprisonment for 12 years. To that extent only, I would allow the appeal against sentence by reducing the overall duration from 14 to 12 years.

CHESTERMAN J: I have read the reasons for judgment prepared by the President and agree that the appeal against conviction should be dismissed but that the application for leave to appeal against sentence should be allowed with the result proposed by her Honour. There are three points on which I wish to express some remarks of my own.

Challenge for cause

There were, in essence, two reasons why the trial judge refused the application for leave to question perspective jurors about their attitude to the appellant. The first was that the subject matter of the publicity, critical of the appellant, which was relied upon as suggesting the possibility of bias was unrelated to the nature of the charges brought against the appellant. The second point was that the disparagement of the appellant had been published between ten months and two years before the trial. Any prejudicial effect it may have had on the jury panel would have dissipated. To question jurors about their attitude towards the appellant with particular respect to the public criticisms of him would only revive what had been forgotten.

Both points are valid and fully justify the trial judge’s decision.

The substance of what was said against the appellant appears in the President’s reasons for judgment. In effect he was accused of being a lazy and a grasping politician. The indictment presented against him alleged several counts of sexual assault against young children. There is no rational basis for believing that prospective jurors would have confused the appellant’s asserted reputation for avarice and lethargy with the question whether he had molested and raped young children.

The lapse of time between publication and trial would necessarily reduce any impact the criticism may have had. At most one would expect members of the panel to retain an indistinct impression that the appellant had been, or was thought to have been, an unsatisfactory parliamentarian.

An application for leave to challenge jurors for cause requires a more substantial foundation. Brennan J, in Murphy v The Queen (1988-1989) 167 CLR 94 at 123-4, pointed out that the practice of Australian courts has been to refuse such applications and that “that approach is generally right”. Mason CJ and Toohey J in their joint judgment pointed out [104] that even in cases where a reading of the offending material gives rise to an inference that members of a jury are likely to have read it and been influenced against the accused “there is still a need to provide a sufficient foundation of fact to justify acceding to the application”. The publicity here in question was not of the requisite kind and there was no foundation of fact put before the trial judge to indicate a sufficient possibility of bias so as to justify questioning jurors. The affidavit of Mr Power does no more than “respectfully submit that some of the allegations made … by the media … may very well have caused some members of the public to develop prejudicial feelings against (the appellant) … which … may very well result in an individual juror being unable to act in an impartial manner …”.

It is customary for trial judges in appropriate cases to instruct juries, immediately after they have been empanelled and again in the summing-up, of the essentiality of delivering a verdict in accordance with the evidence and of disregarding anything they may have read or heard about the case in the media or by private communication. There is no reason to think that these warnings are inefficacious. Experience as a trial judge suggests that juries discharge their duties honestly and conscientiously.

There is another consideration. The appellant’s argument exaggerates the influence of the tabloid media. The public is well aware that its function is to generate income for its proprietors and that the dissemination of information and expression of opinion by it is secondary to that purpose. Information published by that media is often inaccurate and is frequently distorted by the need to create sensation. The distortion is sometimes deliberate. Journalistic opinion tends to be populist rather than responsible and is often the product of ignorance or prejudice. Contrary opinions are suppressed. The community, from which jurors are selected, has a good appreciation of these matters.

It would come as no surprise to a jury sworn to try the case of an accused about whom there had been pre-trial publicity that the facts were quite different to what had appeared in the press. There is little reason to doubt that a jury’s basic decency and common sense would allow it to deliver the verdict in accordance with the evidence.

Unsafe and unsatisfactory convictions

The appellant’s counsel subjected his conviction on counts 15 and 16 to particular criticism. It was said that the evidence in support of them, given by the claimant S, is so implausible as to make the jury’s acceptance of her evidence unreasonable. Her account of the facts constituting those counts are set out in para 111 of the President’s reasons. At first sight the complainant’s description of the appellant’s conduct may justifiably be thought implausible. To say the least, one would regard as unlikely the rape of a nine year old girl by her teacher in front of a class of about 20 children, especially when the act as described required considerable agility and deftness in the removal of clothing (including underclothing) and the performance of the act without causing her to cry or otherwise attract attention.

A conviction will be unsafe and unsatisfactory if an appellate court entertains a reasonable doubt as to the guilt of the appellant which the jury should also have entertained. If, however, the demeanour of the witness or the manner in which she gave evidence can explain why the jury should have accepted her evidence and rejected evidence exculpating the appellant, the appellate court may not substitute its own view of the facts. The jury has the primary responsibility of determining the facts. See M v The Queen (1994) 181 CLR 487.

The complainant’s evidence as to those offences is startling. The effrontery of the appellant’s conduct as described by the complainant does test credulity, but S was cross-examined at length about her account and answered in detail which was both coherent and consistent. No internal contradiction appears in her testimony and there was no variation in the account over time which might throw doubt upon it. Nor were there proved facts inconsistent with what the complainant said. There remains only the circumstance of the offences themselves to raise a doubt as to their occurrence.

The trial judge alerted the jury to the features of the evidence which were likely to affect its reliability. The jury heard the evidence and observed the cross-examination. They believed S. The result is, in my opinion, that this is not a case in which an appellate court can say the jury could not have accepted her evidence.

Sentence

Had the appellant been brought to trial within a few years of the commission of the offences the sentences of 14 years and 12 years imposed for rape would have been entirely appropriate. However no complaints were made for about 30 years. Whether a considerable lapse of time between the commission of offences and their punishment should be taken into account in reducing the severity of the penalty has been the subject of debate in which differing opinions have been expressed. Some propositions are reasonably clear. Lapse of time itself is not a reason for extending leniency towards an offender, particularly in cases of sexual offences involving a breach of trust or abuse of position. See Wagenaar v The Queen [2000] WASCA 325 para 64, 69; R v Tiso [1990] Crim LR 607; R v Ware unreported; NSWCCA; CA No 60115 of 1997, 9 July 1997.

Where, however, the delay has given rise to circumstances which would make it unfair not to reduce the sentence, or where during the time between offence and prosecution the offender has become rehabilitated, it is appropriate to mitigate the punishment. See R v L ex parte Attorney-General [1996] 2 Qd R 63; Wagenaar; Sell v The Queen (1995) 15 WAR 240 at 261.

Because of the delay in bringing the appellant to justice it would, in my opinion, be unfair to punish him with the same rigour that would have been appropriate had he been dealt with promptly. The appellant is now 61 and in poor health. Imprisonment for 14 years is a substantially greater affliction than the sentence would have been had it been imposed when the appellant was young and in good health. Ill health itself is a factor which, depending upon its nature and severity, must be considered when imposing a punishment of imprisonment, as the President points out.

The second feature is also present. The lapse of time has, in my opinion, demonstrated that the appellant has undergone a substantial degree of rehabilitation. “Rehabilitation” in this context means reformation of attitude or character so that the offender regards participation in criminal conduct as unacceptable.

Although the appellant faces further charges similar to those under appeal none is later than 1972. For about 30 years, on the information put before the court, the appellant has not offended against the criminal law. In that time he has been elected to Parliament and held important positions. Although his performance in that capacity has been criticised one cannot overlook the fact that for many years his party thought him suitable for preselection and his electorate returned him as their representative to Parliament. The very large number of references tendered on the appellant’s behalf tell a different story to that advanced in the news media and which is summarised in Mr Power’s affidavit. They indicate that to many people he was over time an effective and considerate local member who worked hard to improve the lot of his constituents.

It is true, as McPherson JA points out, that had the appellant been prosecuted promptly he would not have had the opportunity to be elected to Parliament or to hold high office with its consequent advantage to him, but this does not mean, in my opinion, that the appellant’s conduct over the last three decades is irrelevant to the discretion as to sentence. In many cases in which an offender is sentenced a long time after the crime it could be said that the achievements put forward as evidence of rehabilitation would not have been possible had the offender been convicted timeously. Genuine rehabilitation that has occurred is a mitigating factor, not the less so because the occasion for it arose only because the offender was not prosecuted promptly.

Judicial opinion is divided on whether rehabilitation can be proved in the absence of demonstrated remorse. Some judges seem to have held that it is only by an acceptance of guilt and expressions of contrition that rehabilitation is proved. In Bell v The Queen [2001] WASCA 440 the applicant, after a lapse of about 26 years, was convicted of five counts of indecently dealing with his young son. In that time he had not committed any other offence. Anderson J said (para 15):

“That the applicant ceased offending . . . is not necessarily indicative of rehabilitation. Anyway, the first step towards genuine rehabilitation must surely be a willingness to acknowledge the offending behaviour itself and that it was wrong. . . . The applicant has never admitted the offences and has never shown any remorse. He pleaded not guilty.”

Earlier his Honour had said (para 9):

“Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself . . . up and accept his . . . just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts.”

In the same case Stein AJ said (para 50):

“During the extensive delay it would have always been open to the applicant to make a clean breast of his offences. This would have indicated a positive approach to his rehabilitation. Mere ceasing to offend . . . is not necessarily indicative of reformation.”

See also Sell at 261.

A contrary view was taken by Ipp J (with whom Kennedy and Pidgeon JJ agreed) in Wagenaar. That was a case in which the applicant was convicted of two counts of rape and two counts of indecent assault which had occurred about 30 years earlier. The trial judge paid little regard to evidence of the applicant’s rehabilitation because he had shown no remorse for his conduct and defended the charges of rape on the basis that they occurred when the child was beyond the age of consent and had consented to intercourse. Ipp J disagreed that there was no evidence of remorse, but, more importantly for the present appeal, thought that living “a blameless and socially constructive life” for some 27 years was itself evidence of rehabilitation. In that time he had shown himself to be a good family man, a diligent employee, a committed member of his church and had “contributed in other ways to the general welfare of the community”. His Honour thought the cases, including Law, showed that:

“delay coupled with some other consequence, making it unfair not to reduce the sentence, such as rehabilitation, or even merely, for a long period, living a blameless and constructive life, is mitigatory.”

In Duncan v The Queen [1983] 47 ALR 746 the Court of Criminal Appeal of Western Australia said, at 749:

“ . . . where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail . . .”

I prefer this approach. A court is likely to have more confidence that an offender has reformed where there is a demonstration of remorse arising from a realisation of personal wrongdoing and a sense of guilt, but I do not think it right that rehabilitation may only be proved in that manner. Other factors such as those described by Ipp J, particularly positive contributions made by the offender to the general welfare of the community, are indicative of rehabilitation. Remorse, when present, is conventionally regarded as a reason to mitigate a sentence, but that is so whenever the offender is sentenced. Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living.

I would agree with McPherson JA that the appellant had not shown any sign of remorse. The offences are, obviously, very serious involving gross mistreatment of young children in his charge. Nevertheless the effect on the appellant of the years that have passed and his conduct during those years are such that, in my opinion, the sentences imposed were excessive.

I agree with the President that the application for leave to appeal against sentence should be allowed to the extent of substituting a term of imprisonment of ten years on counts 13, 16 and 18.

ORDERS

1.Appeal against conviction dismissed.

2.(a)Application for leave to appeal against sentence granted.

(b)Appeal allowed.

(c)Substitute a term of imprisonment of 10 years on counts 13, 16 and 18.

(d)Otherwise confirm the sentences imposed at first instance.

Footnotes

1. (1969) 53 CrAppR 412 ↩

2. (1988-1989) 167 CLR 94. ↩

3. (1991-92) 173 CLR 592, 614. ↩

4. [2000] QCA 499; CA No 134 of 2000, 8 December 2000, [35]. ↩

5. (2000) 176 ALR 369, 377. ↩

6. (1998) 193 CLR 1, 7, 41. ↩

7. (2000) 176 ALR 369, 377. ↩

8. [2000] QCA 96; CA No 336 of 1999, 23 March 2000, 7. ↩

9. [1999] QCA 376; CA No 179 of 1999, 10 September 1999, [12]-[17]. ↩

10. [1994] 1 Qd R 540, 544. ↩

11. (1989-90) 168 CLR 79, 90-91. ↩

12. Ibid. ↩

13. (1998) 72 ALJR 1491, 1496, [35]. ↩

14. Brennan, Dawson and Toohey JJ, Longman v R (1989) 168 CLR 79, 90-91. ↩