Court of Appeal (Qld)|2006-05-05|Before: Jerrard and Keane JJA, Douglas JSeparate reasons for judgment of each, member of the Court, Keane JA and Douglas J concurring as to the orders made, Jerrard JA dissenting, in part
Jerrard and Keane JJA, Douglas JSeparate reasons for judgment of each, member of the Court, Keane JA and Douglas J concurring as to the orders made, Jerrard JA dissenting
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
- GENERAL
MATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where appellant convicted
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION- GENERALMATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where appellant convictedof various sexual offences, and offencesrelating to the supply of drugs,involving five different teenage boys - where counsel for appellant argued thata Markuleski direction was necessary to properly allow the jury todetermine the weight to be given to each complainant's evidence in relationtoeach separate count alleged against the appellant - whether the absence of aMarkuleski direction made the conviction unsafe and unsatisfactoryCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION- GENERALMATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where four applicationswere made during the course of the trial todischarge jury - where applicationto discharge made after one complainant referred during cross-examination to a
separate charge
which had yet to be tried - where application to discharge made
after another complainant became argumentative and suggested the
appellant may
have given the complainant money because he felt bad for hurting the complainant
- where application to discharge made
after one of the complainants spoke of
appellant and his actions in vulgar terms under cross-examination - where
application to discharge
made on grounds of prejudice from joinder of
complainants, changes to particulars as to when offences occurred, failure of
one complainant
to come up to proof - where learned trial judge rejected all
applications and gave directions related to these matters - whether
the learned
trial judge's directions were sufficient
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
- GENERAL
MATTERS - JOINT TRIAL OF SEVERAL COUNTS - where appellant made pre-trial
application seeking separate trials for the set
of sexual offence counts and for
the set of drug offence counts - where application was unsuccessful - where
appellant now argued
that two separate trials should have been granted on the
basis of the two main locations at which many of the offences were committed
-
whether a miscarriage of justice can be said to have resulted from the joint
trial
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE
VERDICT -
WHERE APPEAL DISMISSED - where appellant contended jury's findings of guilt
unreasonable in various respects - where dispute
over when exactly the appellant
owned a particular car - where dispute over whether the "magic mushrooms"
contained the dangerous
drugs psilocin or psilocybin - where dispute over
whether symptoms alleged to have been caused by the "magic mushrooms" would
result
only from consuming mushrooms which contained the chemicals necessary to
create psilocin or psilocybin - where dispute over whether
appellant physically
capable of committing the sexual offences - whether the jury's verdicts were
unreasonable in these circumstances
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
- where
appellant argued that his trial counsel failed competently to present the
appellant's case in accordance with instructions
- whether there was no rational
basis for those aspects of counsel's conduct of the case of which the appellant
complains and whether
the appellant was deprived, as a result, of a fair chance
of acquittal
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
- where appellant
asserted that the learned trial judge was biased because of certain statements
made by learned trial judge in course
of trial - whether any bias existed and
whether appellant was denied a fair trial by reason of the alleged bias of the
learned trial
judge
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - OTHER MATTERS - where
appellant argued
trial should not have proceeded due to appellant's ill health - where appellant
asserted that police officers involved
in the investigation related to the
offences had acted inappropriately - where appellant complained that various
witnesses were not
called by the prosecution - whether the trial should have
proceeded in these circumstances
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 REFUSED - PARTICULAR OFFENCES - OTHER
OFFENCES - where appellant sentenced to concurrent
total of eight years
imprisonment with no recommendation for early consideration of post-prison
community based release and with
appellant required to report to police for a
period of 10 years following his release from custody under s 19 Criminal Law
Amendment Act 1945 (Qld) - where learned sentencing judge was satisfied that
appellant posed a risk of committing a further sexual offence upon a child
under
16 years of age - where appellant said to have negative prognostic indicators
and said to be in complete denial regarding his
offending - whether sentence is
manifestly excessiveCriminal Law Amendment Act 1945 (Qld), s
19Drugs Misuse Act 1986 (Qld), s 129Evidence Act 1977
(Qld), s 132ACriminal Code 1899 (Qld), s 567, s 597A, s 597
Ali v The Queen (2005) 214 ALR 1
[2005] HCA 8,
followedDe Jesus v R (1986) ALJR 1, citedHajje v R [2006] NSWCCA 23
No 1322 of 2005, 23 February 2006, citedHoch v The Queen
[1988] HCA 50
(1988) 165 CLR 292, citedNudd v The Queen [2006] HCA 9,
followedPhillips v The Queen (2006) 224 ALR 216
[2006] HCA 4,
citedThe King v Burdett (1820) 4 B & Ald 95
106 ER 873,
citedR v LR (2005) 156 A Crim R 354
[2005] QCA 368, followedR
v Markuleski [2001] NSWCCA 290
(2001) 52 NSWLR 82, consideredR v
PV
ex parte A-G (Qld) [2005] 2 Qd R 325
[2004] QCA 494,
followedTKWJ v The Queen (2002) 212 CLR 124
[2002] HCA 46,
followed'VIM' v The State of Western Australia [2005] WASCA 233
CACR
10 of 2005, 2 December 2005, citedWeissensteiner v The Queen [1993] HCA 65
(1993)
178 CLR 217, cited
Judgment (308 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where appellant convicted of various sexual offences, and offences relating to the supply of drugs, involving five different teenage boys - where counsel for appellant argued that a Markuleski direction was necessary to properly allow the jury to determine the weight to be given to each complainant's evidence in relation to each separate count alleged against the appellant - whether the absence of a Markuleski direction made the conviction unsafe and unsatisfactory
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where four applications were made during the course of the trial to discharge jury - where application to discharge made after one complainant referred during cross-examination to a separate charge which had yet to be tried - where application to discharge made after another complainant became argumentative and suggested the appellant may have given the complainant money because he felt bad for hurting the complainant - where application to discharge made after one of the complainants spoke of appellant and his actions in vulgar terms under cross-examination - where application to discharge made on grounds of prejudice from joinder of complainants, changes to particulars as to when offences occurred, failure of one complainant to come up to proof - where learned trial judge rejected all applications and gave directions related to these matters - whether the learned trial judge's directions were sufficient
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS - where appellant made pre-trial application seeking separate trials for the set of sexual offence counts and for the set of drug offence counts - where application was unsuccessful - where appellant now argued that two separate trials should have been granted on the basis of the two main locations at which many of the offences were committed - whether a miscarriage of justice can be said to have resulted from the joint trial
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant contended jury's findings of guilt unreasonable in various respects - where dispute over when exactly the appellant owned a particular car - where dispute over whether the "magic mushrooms" contained the dangerous drugs psilocin or psilocybin - where dispute over whether symptoms alleged to have been caused by the "magic mushrooms" would result only from consuming mushrooms which contained the chemicals necessary to create psilocin or psilocybin - where dispute over whether appellant physically capable of committing the sexual offences - whether the jury's verdicts were unreasonable in these circumstances
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS - where appellant argued that his trial counsel failed competently to present the appellant's case in accordance with instructions - whether there was no rational basis for those aspects of counsel's conduct of the case of which the appellant complains and whether the appellant was deprived, as a result, of a fair chance of acquittal
[6]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE - where appellant asserted that the learned trial judge was biased because of certain statements made by learned trial judge in course of trial - whether any bias existed and whether appellant was denied a fair trial by reason of the alleged bias of the learned trial judge
[7]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - OTHER MATTERS - where appellant argued trial should not have proceeded due to appellant's ill health - where appellant asserted that police officers involved in the investigation related to the offences had acted inappropriately - where appellant complained that various witnesses were not called by the prosecution - whether the trial should have proceeded in these circumstances
[8]
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 REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - where appellant sentenced to concurrent total of eight years imprisonment with no recommendation for early consideration of post-prison community based release and with appellant required to report to police for a period of 10 years following his release from custody under s 19 Criminal Law Amendment Act 1945 (Qld) - where learned sentencing judge was satisfied that appellant posed a risk of committing a further sexual offence upon a child under 16 years of age - where appellant said to have negative prognostic indicators and said to be in complete denial regarding his offending - whether sentence is manifestly excessive
D R Kent for the appellant on some grounds; the appellant appeared on his own behalf on some grounds of the appeal
[26]
Howden Saggers Lawyers for the appellant on some grounds; the appellant appeared on his own behalf on some grounds of the appeal
[27]
Director of Public Prosecutions (Queensland) for the respondent
[28]
[1] JERRARD JA: In these appeals I have read and agree with the reasons for judgment of Keane JA and Douglas J, except as to the counts of supplying psilocybin. The appeals against conviction raise a variety of issues. The more important include the propriety of the joinder of the charges on which Mr Ford was convicted; the adequacy of the directions given about the jury's possible views on the credibility of the various complainants; whether Mr Ford's counsel at his trial failed to follow Mr Ford's instructions and in other respects to advance his defence, and whether that resulted in a miscarriage of justice;[1] and whether the prosecution had proven that Mr Ford had supplied various of the complainants with mushrooms containing the dangerous drugs psilocin and psilocybin.
[29]
[2] Mr Ford conducted some of his appeal himself, principally submissions as to various ways in which counsel had not advanced his defence. Mr Kent of counsel also appeared for Mr Ford, to present arguments that the learned judge had inadequately directed the jury, and that the learned trial judge had erred in failing to discharge the jury on those occasions when Mr Ford's counsel at the trial had urged the judge to declare a mistrial (grounds 4 and 2 respectively). Mr Kent and his instructing solicitor appeared to argue those grounds to assist both the Court and
[30]
[3] The necessity for some assistance for Mr Ford, who otherwise wished to present his own arguments, became apparent when the matter was first listed for a hearing on 21 November 2005. By that date Mr Ford had filed an affidavit 65 pages long, and that affidavit referred to some 34 discrete bundles of documents he wanted to exhibit to it. As at 21 November 2005 Mr Ford did not yet have copies of those, considered that he had not yet completed his affidavit, and required an adjournment. This was granted, and officers from the appeal registry carefully and methodically sorted and then photocopied all of those documents proffered as the 34 exhibits.
[31]
[4] Mr Ford also supplied more affidavit material, also sorted out and photocopied by the registry staff. The net result of what was done for Mr Ford by the registry was that each member of this Court had what ultimately became Mr Ford's six volume affidavit, consisting of 302 pages; Mr Ford's "Part B draft oral argument" (49 pages), and copies of the exhibits to Mr Ford's affidavit, collected in 14 separate bundles under the title "Part C - exhibits to affidavit dated 1/11/05". Mr Ford had actually added, it appeared, exhibits 34-36; these were included in the photocopy bundle.
[32]
[5] This Court thus had before it a substantial body of documents, well over a foot high, in which Mr Ford set out his criticisms of the way his defence had been conducted. Much of the material in them is repetitious, and much of it is based on documents not exhibited at the trial. Some of his complaints are that those documents were not so exhibited. Accordingly the Court treated his affidavit and exhibits as a written submission, but not as evidence of the truth of the contents of the assertions in either the affidavit or any of the voluminous annexed documents. Mr Ford appeared to accept that that was sufficient to do justice to his arguments, while preserving the necessity for the appeal to be conducted on the record. In the result no new documents were admitted as evidence on the appeal, although the contents of a number were relied on in argument, in support of Mr Ford's submissions about the conduct of his case.
[33]
[6] Mr Ford had also asked for various subpoenas to be issued, but this request was refused, because Mr Ford was largely engaged in a fishing exercise, and many of the documents sought were not directly relevant to any of the grounds on which he complained about his trial. One bundle of documents, relating to vehicle registration, had arguable relevance, but for reasons explained below insufficient to justify their reception into evidence on the appeal. Mr Ford also wished to have the Court receive another version of his affidavit, now fully typed. This was considered unnecessary, the Court already being supplied with a very clear description of his arguments, thanks to the very extensive efforts on his behalf by the registry staff.
[34]
[7] To understand the submissions made by each of Mr Kent and Mr Ford, it is necessary to understand the nature of the Crown and defence cases made at the trial. I gratefully adopt the description of each complainant's evidence given by Keane JA, to which I add the following further descriptions.
[35]
[8] Regarding count 1, G's evidence in chief was that he met Mr Ford within two weeks of G starting school in January of 1989, and did so because a friend of his, P, who attended the same State high school (but who was older than G) was then sharing a unit with Mr Ford. Both P and G would wag school together, and soon enough G met Mr Ford, with whom he discussed religion and sexuality. The relationship then developed as described by Keane JA, and very soon after G's 16th birthday he too moved into Mr Ford's unit at Windsor, where counts 1 to 4 were committed. Counts 3 and 4, the first occasion of anal intercourse with each other by both G and Mr Ford, was preceded by a ritual in which both participants were naked, and in which there was "some chanting", and G's evidence of a ritual or ceremony preceding sexual interaction reflected that of other complainants.
[36]
[9] The complainant C described an occasion (the subject of counts 19 to 21, on which verdicts of not guilty were returned) on which Mr Ford had put on a black coat, and then doused C with what C called "holy water", which C said had burnt him. On C's account he went to a bedroom, where he was joined by G and Mr Ford. C's account was that Mr Ford persuaded C to perform anal sex on Mr Ford (count 21), although C refused to let Mr Ford perform sodomy on C. Count 20 was based on C's evidence that before C performed anal intercourse, Mr Ford had fondled C on his groin, through C's underpants. G's evidence included a description of that "holy water" occasion recounted by C, although G described only the ritual and not any sexual activity involving C after that ritual.[2] Mr Ford's evidence acknowledged the occasion, in which he said he had been pretending to exorcise C, whom he did not like. He denied any sexual activity at all with C at any time.
[37]
[10] Likewise the complainant A described an occasion (count 31) on which, after A had consumed hashish at Mr Ford's premises (by then at Sunnybank) a party travelled in Mr Ford's "little blue Citroen" to Toohey Forest, where a ritual was performed, as described by A. At that time Mr Ford attempted to persuade A that it was necessary for the participants to be naked, and then attempted to remove A's tracksuit pants, grabbing A by the groin or crutch when doing so. The jury convicted on that count. A said those present were Mr Ford, A's brother T, A, and G. G also described in his evidence a trip to bushland with T, A, himself, and Mr Ford, in which hashish was consumed; on G's evidence Mr Ford actually sucked T's penis after a discussion about Aboriginal belief, and on G's evidence Mr Ford may have attempted the same with A.
[38]
[11] Mr Ford's evidence at the trial in respect of G, C, and A, was that G had only moved into Mr Ford's Windsor unit in mid-June 1989, not immediately after G's 16th birthday as G claimed, that they had never shared a bed in that unit (as G said they had), and that when Mr Ford moved to live in a shed at Sunnybank in March 1990 and G moved there with him, (living there until November 1990), they had occupied different beds, and had no sexual relationship until after G had turned 18. That sexual relationship had consisted of some minor sexual dealing in late 1991 or 1992, and then some three or four subsequent occasions when Mr Ford and G had anal intercourse, those occasions being limited to ones in which G had been unable to find another partner.
[39]
[12] With respect to C, Mr Ford's evidence was that he had met him in late September 1989 and not in early 1989 as C contended, and that Mr Ford did not like C, who was a friend of G's, and they had had no sexual relationship at all. Regarding A, Mr Ford's defence was that he had met him in November 1990 when Mr Ford was living at his Sunnybank residence, and not, as A contended, in (what was) the first half of 1990. Mr Ford's evidence was simply that he had very little to do with A, and had not participated in any rituals or sexual dealings with A.
[40]
[13] G was a significant witness at the trial, because his evidence described both the offences allegedly committed by Mr Ford in sexual dealings with G, and also sexual dealings between Mr Ford and the complainants C, S, and A. He also described a count when the Crown alleged the drugs psilocin and psilocybin were supplied to him by the consumption of mushrooms containing that drug (count 37), and how on the same occasion that drug was supplied in the same manner to the complainant F (count 33).
[41]
[14] The complainant C, born on 28 October 1975, was introduced to Mr Ford by the complainant G; on C's evidence that was in 1989 when he was still 13. He was able to describe Mr Ford's unit, and described being allowed to consume alcohol and cannabis there, and watch videos and pornography, primarily homosexual. The offence alleged in count 6, on which Mr Ford was acquitted, was said by C to have happened on the first occasion C had met G,[3] which was also the first occasion C met Mr Ford.[4] C's description of this was that he and G began engaging in "same sex" with each other at Mr Ford's unit, and were then joined in that activity by Mr Ford, who sucked both boys' penises. C described G and Mr Ford then each sodomising the other in C's presence. G's evidence confirmed that he had introduced C to Mr Ford, and described Mr Ford engaging in what I will call "grooming" activities with C, with sex toys and tapes and ultimately a pornographic video, and then an occasion when Mr Ford performed oral sex on C. G's evidence made it clear that was not, as C alleged, on the first occasion when Mr Ford met C.[5] C also described seeing the complainant S at Mr Ford's unit, who may also (on C's evidence) have been present on the occasion described in count 26, when the person MJ took photographs of C and G simulating sexual activity with each other, described in Keane JA's reasons for judgment. S and C attended the same school.
[42]
[15] S was also a significant witness at the trial, simply because of the number of counts on which Mr Ford was convicted for offences involving S. Further, like C's evidence, the evidence of S supported the Crown allegation that there was a homosexual relationship between Mr Ford and G in 1989 when G was living in Mr Ford's unit. Both S and C described either seeing sexual activity between Mr Ford and G in the unit, or - in S's case - participating in sexual activity at the same time with G and Mr Ford.
[43]
[16] S's evidence was that he was introduced to Mr Ford in 1989 when S was still in grade 8, and 12 years old, (before he turned 13 on 3 April 1989). C introduced him to Mr Ford, and at first S simply went to Mr Ford's unit to wag school, eat chips et cetera, and play video games. He met G, whom he described an older, taller "kid",[6] and S was introduced to pornography, then mutual masturbation, and eventually to oral sexual intercourse involving both G and S (count 10). He said G had not been present on any of the three occasions when S was sodomised by Mr Ford, and charged as counts 14, 16, and 18. The jury convicted on all those. They also convicted on counts 13, 15, and 17, those counts consisting of oral intercourse and the insertion of a finger in S's anus, which occurred on each of the three occasions on which there was anal intercourse the subject of a specific count, and which preceded the anal intercourse. Those three occasions had involved sexual activity between only Mr Ford and S. He described them as occasions of "rape", but also said he was paid $100 after the first one, and, in effect, that he had sought out the second occasion for the money; he had spent the first $100. On what he described as the third and last occasion, he said that he stole Mr Ford's wallet, and left the premises by jumping over the balcony. He never returned to the unit at Windsor then occupied by Mr Ford, and on his evidence had had no more dealings with Mr Ford.
[44]
[17] Mr Ford's defence at the trial was that S had been a customer at a video business Mr Ford had been conducting, S being a customer in 1987 and 1988, but who had been banned from it because of his behaviour, in early 1988. Mr Ford did not see S at all in 1989 or 1990. That defence made the following points relevant for the prosecution, that the evidence of S contained a description of Mr Ford's unit at Windsor and its interior; that it was clear that he knew C went there and that C knew Mr Ford; that S knew G lived there, and described a sexual relationship between G and Mr Ford at that unit; and that S knew G was an active homosexual. S's evidence read as that of a convincing witness, as did G's.
[45]
[18] The one area of disagreement between them was understandable enough; G's evidence regarding S was that the latter would come to the Windsor unit and that:
[46]
"There was a period of time where he sort of was there a fair bit and then he sort of disappeared";[7] and that:
"There were times where there'd be sexual things happen with (S). I don't recall the exact circumstances. I know that, like, Garry (Mr Ford) and I had definitely had sex in front of S. The circumstances of those instances I can't elaborate - can't remember."[8]
[47]
"Did you observe any sexual interaction between Garry Ford and S?";[9] and
[48]
"I did but the circumstances of those, as I said, like, I just can't
[49]
[19] G's evidence made it clear that that interaction had happened only at the unit at Windsor, and G's reticence in describing sexual dealings involving S was somewhat readily explained by the evidence by S, which was of numerous occasions involving masturbation and oral sex between G, Mr Ford and S, although none involving anal intercourse which included G. The jury were entitled to conclude that G had simply withheld evidence of his own participation in sexual exploitation of S. G was of course only 16 at that time, and also the subject of exploitation by Mr Ford.
[50]
[20] This description of the evidence given by S and G should suffice to show that it was quite rich in detail concerning the unit at Windsor and sexual activity by Mr Ford with each of them, and showed knowledge of sexual activity by Mr Ford with the other. In contrast, Mr Ford's own evidence was really very limited. His evidence in chief contained a great deal of circumstantial detail, intended to establish that G came to live at the Windsor unit at least three months later than G had said, and other details of Mr Ford's life intended to demonstrate that he was extremely busy, and therefore simply too busy to have sexual dealings with anyone. Additionally, Mr Ford described having erectile problems in the period from July 1989 through to mid-1990, putting a further hurdle in the way of a finding that he had engaged in the anal intercourse alleged. However, despite the wealth of other circumstantial detail, his evidence described very little of whatever was the actual relationship between himself and G, then 16 years old and living with him, other than that he employed G; and a bare denial of any sexual relationship until after G turned 18. His evidence about S was limited to a claim not to have seen him at all in 1989; C's evidence supported that of G and S, in that C also could recall seeing S at Mr Ford's unit in 1989,[10] including possibly on the occasion when MJ took a video of indecent dealings involving C and G.
[51]
[21] Mr Ford made clear on the appeal that he keenly appreciated the convincing detail in the evidence of G and S, compared to the paucity of his reply. In his extensive written submissions, and oral argument, he sought to attribute the deficiencies in his defence to his counsel's presentation of it. His primary complaint about the cross-examination of G was that it had not been put that G had been a child prostitute, apparently before meeting Mr Ford, and not put that G had been an abuser of non-prescribed drugs. Further, G had experienced business failures as a young adult, and Mr Ford had been unable to lend him money to assist G, and those matters were not put. Mr Ford suggested in oral argument that that might have been put before the jury as a possible explanation for G's patently false evidence of a sexual relationship involving anal intercourse, existing before G's 18th birthday. Another motive suggested by Mr Ford for that false evidence was that a subsequent male partner of G's, a person D, had been identified in or about 1993 by Mr Ford as suffering from AIDS, a matter which D had not wanted publicly known. Perhaps, Mr Ford suggested in argument, G had lied about Mr Ford because of D's hostility to Mr Ford. Mr Ford's evidence in cross-examination at the trial had included the description of D having AIDS, although Mr Ford did not then himself directly link that to what, on Mr Ford's case on appeal, was a motive for false evidence deliberately given by G. Indeed, Mr Ford's evidence at the trial and extensive written submissions suggested G was angered to learn D had AIDS, not that G was loyally inclined to fabricate evidence about Mr Ford for revealing D's illness.
[52]
[22] Because Mr Ford's affidavit produced to this Court in November 2005 had been replete with contentions that his instructions were not followed, and because Mr Ford had wanted to provide the Court with five compact discs containing the multiplicity of instructions he had given for the trial and which he contended had not been followed or put, this Court did receive a document from Mr Ford's solicitors (as at November 2005), who were not his solicitors at the trial, headed "questions to ask". That document was apparently prepared prior to the trial. It lists suggested questions for the various complainants, or potential lines of attack. Regarding G, the vast bulk of the numerous entries simply list the dates of events, without explaining their relevance, which mostly is not obvious. There is no suggestion that G should be asked about having been a child prostitute, or about his drug abuse, or that G was giving false evidence because of D's resentment at being identified as having AIDS. Nor are there instructions to ask about his business failures as a young adult.
[53]
[23] Regarding S, Mr Ford had a well developed theory presented in his oral submission, to the effect that it ought to have been put to S in cross-examination, and strongly suggested to the jury, that S was simply attributing to Mr Ford instances of sexual abuse of S which had actually been perpetrated upon S by a different adult male, one K. Mr Ford explained in his oral argument that, after his conviction, he had studied the transcript of committal proceedings in which S had given evidence against K about the latter's abuse of S, and had observed what Mr Ford considered to be significant similarity between various of the descriptions of the offences of which Mr Ford was convicted, and the descriptions of the offences alleged against K. Mr Ford contended that any fair trial really required that those similarities be put forcibly to S, with the suggestion that S had - perhaps unwittingly - attributed to Mr Ford things done by K. Involved in that proposition, as a matter of necessity, was the further proposition that S had also falsely attributed to G things done to S by C, whom Mr Ford explained had been a co-abuser of S with K.
[54]
[24] A number of things can be said about the suggestion that Mr Ford's defence at the trial should have included those propositions. Firstly, those were not the instructions Mr Ford gave to his counsel before the trial, which appear in the document "questions to ask" provided to this Court by letter dated 21 February 2006 from Mr Ford's solicitors, who instructed Mr Kent on the appeal. Those instructions regarding S include the statement:
[55]
which is an accurate summary of the little that does appear in the document.
[56]
[25] Despite the complete deficiency in the written instructions given to his trial counsel, that trial counsel did cross-examine S to some effect about the complaints S had made of abuse by K, contrasting those complaints with the evidence S gave about Mr Ford, and pointing to discrepancies and inconsistency. The inconsistencies included the statement to the police that he had first been sodomised by Mr Ford when in grade 9, whereas his evidence to the jury was that it was in year 1989, when in grade 8 (I interpolate that the latter date accords with the asserted location, namely the Windsor unit which Mr Ford occupied in 1989 and did not occupy in 1990); that S had told the Magistrate that K was the first person to sodomise S, but Mr Ford was the first person to sexually molest S, and that despite this, S had given evidence that K had sexually molested S from the time he was 11, up to and even after S met Mr Ford. Counsel established that S had also told the Magistrate that the first person who had educated S in masturbation was Mr Ford, while K was the first person to sodomise S. Mr Ford's trial counsel then suggested to S that he had been confused about the timing of Mr Ford's alleged offences - between grade 8 and grade 9 - because there had never been offences involving Mr Ford (to which the witness said the suggestion was preposterous, because "they certainly did occur");[11] and put the further suggestion that S had completely confused the occasions alleged against Mr Ford with the "same sorts of statements that you've given to the police in relation to K?"[12]
[57]
[26] S replied to the latter suggestion that he had been molested by more than one person, and that K and Mr Ford were good friends. S then hypothesised that "[t]hey probably talked about it and said, 'This is what you've got to tell the kids.'"[13] That response, for which S apologised to the court, was an obvious enough risk created by the line of questioning which Mr Ford would now like to have seen much further enlarged upon. That risk was simply that the evidence Mr Ford wanted adduced in cross-examination, namely the very specific details of each of the circumstances in which K allegedly abused S, would have also made clear what emerged on the appeal, namely that Mr Ford and K lived very close to each other and knew each other, and that more than one of the complainants in Mr Ford's trial had had dealings with both Mr Ford and K. Thus an almost inevitable result of adducing all of the evidence in cross-examination, which Mr Ford now contends should have been adduced, would have been to have the jury regard Mr Ford as one of a group of possible paedophiles. That consequence was largely avoided by the more muted approach taken by Mr Ford's trial counsel.
[58]
[27] Finally, establishing that S had been the subject of extensive sexual abuse by K, and that C had been involved in that, would not have constituted an obviously effective response to the evidence given by S about Mr Ford. Close similarity in the descriptions of occasions of abuse would not necessarily result in any doubt that any one of those occasions had actually happened. The jury might simply accept and prefer the statement that S made, that he had been molested by more than one person. In summary, Mr Ford did not give instructions to attack the evidence of either S or G in the manner of which he would now approve, and that manner of attack would in all probability have done more to damage Mr Ford in his defence than to help him. Establishing that G had been a sexually abused child, and either then or later a drug addict, would do little to disprove the allegations that Mr Ford had both sexually exploited him and supplied him with a dangerous drug. Further, the attacks Mr Ford now wants made on S and G would still establish no real motive for a false accusation by either. Mr Ford's essential response to the latter point was that he contended the investigating police officer, a Detective Jory, may have implanted in the minds of both S and G the (false) notion that Mr Ford had abused them, that implantation happening from by the way in which Mr Jory had interviewed those two complainants a number of years later. As to that, Mr Ford's instructions in the document "questions to ask" had specifically included his agreement "not to try to get into his possibly rigging the case", and to "concentrate on his incompetent investigation, NOT that he was corrupt or the like." It did not include the suggestion to cross-examine Mr Jory about having (innocently) implanted suggestions which two of the complainants had thereafter adopted and (either innocently or falsely) enlarged upon. Had those suggestions been put, they would have sounded like clutching at straws. The jurors heard the direct evidence of G and S, which Mr Ford himself concedes to have been persuasive and convincing evidence.
[59]
[28] I think it only fair at this point to express my view that Mr Ford's counsel at the trial, Mr Green, can justly take pride in having won acquittals on nine of the counts, including on all counts alleging that Mr Ford had supplied different of the complainants with cannabis (count 19 - supply to C; count 25 - supply to C; counts 28 and 30 - supply to A; count 34 - supply to F). He also obtained acquittals on count 2, an allegation of indecent dealing with G; count 6, an allegation of indecent dealing with C when under 14; count 20, an allegation of indecent dealing with C when a boy under 16; and count 21 an allegation of permitting C to sodomise Mr Ford. To achieve that outcome it was necessary for counsel to persuade the jury to look beyond the evidence of Mr Ford's demonstrated propensity to have sexual dealings with males under the age of consent or otherwise under statutory age limits, and beyond the evidence of his propensity to permit (or encourage) the consumption of cannabis and other drugs by those complainants prior to sexual dealings with them, and to examine instead whether a specific offence occurred at a particular time as alleged, and whether it was Mr Ford who had supplied drugs which were consumed on those specific occasions. That was a considerable achievement by each counsel and the learned trial judge, in enabling the jurors actually to carry out their task unhampered by the prejudicial effect of the admissible evidence. Mr Green did put his instructions clearly to each complainant, and his conduct of the trial not only did not cause a miscarriage of justice, but achieved some acquittals in quite difficult circumstances. I note that document 18F in Volume C6 of the exhibits to Mr Ford's affidavit includes, as a general introduction to Mr Ford's instructions on suggested points to be made in cross-examination or in his own evidence, the observation by Mr Ford that:
[60]
"Public opinion is such that I believe even if I could show I was on the other side of the Planet, a jury would still convict."
[61]
That was probably a fair summary of what Mr Green faced as counsel, and he is entitled to credit for the actual results. I add that that document does not include any further or better suggestions for cross-examination of any complainant than the other document entitled "questions to ask".
[62]
[29] Mr Ford advanced other independent complaints, including about the failure by counsel to put in evidence the source documents from which Mr Ford had constructed, for counsel's benefit and his own, a lengthy "diary" (or "time line", as he called it) of his movements in 1989 and 1990. The document is an admitted reconstruction, prepared many years later, and the source documents are both varied in nature and largely inadmissible, except perhaps for the express purpose of demonstrating that a particular date was inserted in the documents at the actual time. The ultimate point of the entire exercise was to describe to the jury simply how busy Mr Ford had been, particularly in 1989, and hence how unavailable for sexual dalliance with under aged youths and young men. With respect to that complaint, Mr Ford made the same point at some length, about being very busy, in his evidence in chief in the trial, and the prosecution did not challenge his description of the societies to which he belonged and then many activities he pursued; nor that in 1989 he was kept busy with his business, political, and other interests. That evidence did not establish that he was not in his unit on occasions when the complainants were, and for long enough to engage in sexual dealings with them.
[63]
[30] He also independently complained of a failure to put in evidence documents demonstrating that a sky blue Citroen Mr Ford had owned for some years had been deregistered by the end of 1988, and that a deep blue Citroen Mr Ford then leased had been damaged in a motor vehicle accident in July 1989, and repossessed in September 1989. Further, a Mr Flaws, who lived in the house at Sunnybank behind which Mr Ford had been forced to live in a shed (with Mr G) in 1990, had acquired a Citroen registered in his name, but that was registered only in 1991. The point of putting in those documents, something not done during the trial, was to demonstrate that Mr Ford had not had a vehicle registered in his name in 1990, which evidence would have supported Mr Ford's own evidence that he did not in fact have a Citroen vehicle available for his use in 1990. That evidence by Mr Ford contradicted evidence by the complainant F that one evening in the first half of 1990 he, A, T, and four others had driven with Mr Ford in Mr Ford's tan or beige coloured Citroen to Enoggera to pick "magic" mushrooms (count 32, alleging Mr Ford supplied the drugs psilocin and psilocybin to F). F also described a separate and fourth occasion when two vehicles, one of which was Mr Ford's, went on a similar trip for the same purpose, and when G also accompanied them (count 33). G described a trip in his evidence which had included himself, Mr Ford, and F, who all went to a field near the end of Stafford Road where mushrooms were picked. While that evidence by G did not describe the vehicle Mr Ford drove, G's evidence did include the contention, challenged in cross-examination but adhered to by G, that Mr Ford had a vehicle in 1990, which G said was a Citroen.[14] A also described two visits to a location at Enoggera in 1990 in what he variously described in evidence as "Garry's car", "Garry's little Citroen" and "his little blue Citroen"[15], for the purpose of picking mushrooms which Mr Ford later cooked and the juice of which he supplied to A and other young males (counts 38 and 39, charges of suppling psilocin and psilocybin to A).
[64]
[31] The documents Mr Ford wanted exhibited would not have disproven the evidence of G, A, and F to the effect that Mr Ford drove a Citroen in 1990. One obvious conclusion is that he had the use of a Citroen not registered to him. Mr Flaws also gave evidence in chief that Mr Ford had bought a second-hand Citroen in 1990, which was blue or green in colour; but he agreed in cross-examination that that purchase was "finalised in February of 1991".[16] Mr Green really did as well as he could with the evidence, and further digging or exhibiting documents would not have established evidence contradicting what A, T, and C had said.
[65]
[32] Mr Ford also complained that his counsel had not put in evidence documents which showed that in and about 1991 - 1992, Mr Ford had informed police about possible stealing, receiving, and drug offences by various young males. Mr Ford agreed on the appeal that at least one of those documents would have damaged him, if put in, because it showed he was trying to get the police to drop charges against T, whom Mr Ford said was one of his informants. The other correspondence with police carried similar risks for Mr Ford; if it had been put in evidence, the jurors would undoubtedly wonder how Mr Ford knew so much about the activities of so many young males, mostly teenagers. As Mr Ford agreed, the correspondence, if put in evidence, also risked the conclusion that Mr Ford informed on those he did not like. It was also rather non-specific information that Mr Ford reported, in that no specific or chargeable offences were disclosed, and it showed he spent time with the people he named. It would not have provided any answers to any charge to have put in that curious correspondence.
[66]
[33] The offences charging the supply of psilocin and psilocybin named A, G, and F as the complainants or victims. No charges of sexual dealings with F were brought against Mr Ford, although F's evidence included that on the occasion of count 33, and after the consumption of mushrooms stewed up at Mr Ford's residence at Sunnybank,[17] F consumed some, and afterwards felt a bit "woozy" and "pretty out of it"[18]. F said that Mr Ford had removed his pants, pushed him back on "the bed", and had then "started giving me oral sex".[19] That description was supported by G, who described the visit to the field to collect the mushrooms and that Mr Ford had cooked them in a pot on the stovetop[20], and that the contents were then consumed. G said that F had described himself as hallucinating, and that later both Mr Ford and G had each sucked F's penis. G's evidence had included that Mr Ford had said it was good to "do mushrooms" with "people you know",[21] and that G himself had felt that he was "on pink clouds, sort of thing." (This was count 37, involving G, and 33 involving F.)
[67]
[34] F had described an earlier trip in 1990 to Enoggera to collect mushrooms, which he said were described by Mr Ford as "magic" mushrooms, which had a gold ring around their top. There were also blue "meenies", which were small mushrooms with a blue transparent stem.[22] On the occasion of the first collecting trip the mushrooms were stewed up in a pot in Mr Ford's residence and the contents consumed with coffee. F could remember hallucinating, feeling edgy and having lots of energy. He also recalled seeing spots in front of his eyes and funny shapes. This lasted some four to five hours.[23]
[68]
[35] The two counts of supplying psilocin and psilocybin to A, also in that first half of 1990, were described by A as ones where he was driven out to a big park at Enoggera by Mr Ford and shown how to pick "magic" mushrooms, and also shown the difference between the "golden tops" and the "blue meenies", and the difference from those from a normal toadstool or mushroom.[24] The mushrooms were cooked in a casserole dish and the juice drunk in black coffee, which caused A to have "very wild hallucinations", to see his friends turn into "Smurfs", and to leave A feeling as if "I was moon walking around."
[69]
[36] Those offences all occurred while Mr Ford was living in the shed at Sunnybank with G, and G first met F in premises across the road from Mr Ford's residence at Sunnybank. Through F, G met A, A's brother T, and other young people, all of whom then met Mr Ford, apparently through G. G was really therefore a connecting link between the two residences and the two sets of complainants at each (G, C, and S at Windsor and G, A, and F at Sunnybank). G and F had consumed the mushroom concoction obtained at Mr Ford's direction or counselling on what appears to have been one in the same occasion (counts 33 and 37). The charges of supplying psilocin to A did not directly involve any other complainant, but did involve mushrooms allegedly described by Mr Ford as "magic" mushrooms, their preparation in a similar manner, and A feeling similarly strongly affected by them. A's evidence also included reference to the blue Citroen, and his evidence on count 31 - not involving the supply of psilocybin, but involving a charge of indecent dealing - was that after he had smoked hashish at Mr Ford's premises and had gone to Toohey Forest with Mr Ford, T, and G, a ritual had been performed in which Mr Ford had made determined sexual advances on him.
[70]
Admissibility of evidence and joinders of charges
[71]
[37] It would have been extraordinarily difficult to bring any individual count against Mr Ford involving a complainant other than G in which the jury did not of necessity hear of G's own alleged sexual relationship with Mr Ford, and of how that had involved the consumption of drugs and engaging in rituals. It was also a recurrent feature of the evidence of the complainants that they had been supplied with amyl nitrate by Mr Ford, although no charges were laid in respect of that. The evidence the prosecution led was irretrievably intermingled, and the evidence of any one complainant assisted in placing in context the evidence of each other complainant. Evidence by any one complainant of sexual dealings observed between Mr Ford and another complainant was also obviously admissible.
[72]
[38] G's evidence was probative of the existence of a sexual relationship between Mr Ford and S, Mr Ford and C, and of sexually abusive conduct by both Mr Ford and G with F, although not charged. To a lesser degree, G's evidence was probative of sexual interest by Mr Ford in A, in that G's evidence included evidence of both A and A's brother T having been initiated by Mr Ford into the "brotherhood" which, on G's evidence, was the term used by Mr Ford to describe the existence of a "white brotherhood". G had been initiated into that, on his evidence, prior to his 16th birthday, and that ritual (involving ejaculating semen into a bowl when wearing robes, and pricking fingers and dropping blood from them into the same bowl), was the occasion the subject of count 2. As Keane JA has explained, the acquittal on that count is readily explained by uncertainty as to whether in truth it did occur before G's 16th birthday as alleged in the indictment. G's evidence had included that the "Great White Brotherhood" was a group of people, both living and dead, who communicated on a telepathic level, having a spiritual connection, and that Mr Ford thought G had the potential to belong to that group. On G's evidence, A and T had also been initiated into that brotherhood.
[73]
[39] A's evidence had included the description of an occasion (the subject of counts 27 and 29) on which he had skipped school and gone to Mr Ford's premises at Sunnybank, been supplied with cannabis, watched a "gay video", and then been kissed by Mr Ford, who had fondled A's crutch and offered to perform oral sex on him. A had declined.
[74]
[40] G's evidence of A's initiation into the brotherhood is reflected in A's evidence of the occasion of a trip to Toohey Forest in Mr Ford's Citroen, when a ritual was performed, leading to Mr Ford attempting to persuade A to remove his clothes, and Mr Ford then attempting to do that himself and fondling A's groin. What is significant about that evidence is the similarity to the description by G of how he was initiated into the brotherhood, from which developed the overtly sexual relationship with Mr Ford while G was under the age of 18. The only real difference between the two accounts is that A rebuffed Mr Ford's sexual advances, whereas G did not.
[75]
[41] The evidence from C was also probative of the existence of a sexual relationship between Mr Ford and G, and of the existence of a possibly sexual relationship between Mr Ford and S. The evidence of each of the complainants G, S, and C of their own relationship with Mr Ford, and their observation of his dealings with the other of those complainants, is only rendered intelligible by the evidence of those other complainants. That is, the evidence of S about the conduct of Mr Ford and G is rendered intelligible by G's evidence; the evidence of C about the conduct of Mr Ford and G is only rendered intelligible by the evidence of G; likewise the evidence of G regarding the attempted corruption of F is rendered intelligible by G's evidence; and A's description of the attempts to seduce him, involving an occasion of ritual and his evidence of being supplied with drugs, is rendered far more intelligible by G's evidence of his own experience with drugs and rituals. G's evidence is probative of rituals having occurred leading to the (uncharged) abuse of F, and the attempts to abuse A.
[76]
[42] The evidence of G was highly probative of the existence of the relationships and dealings alleged in the evidence of S, C, A, and F. The only conclusion open from the evidence taken as a whole of all the complainants is that a sexualised relationship either existed between Mr Ford and each of those youths, or was intended or attempted by Mr Ford, and that his dealings with each were characterised by their being youths who were deliberately avoiding school by attending his premises, at which food, videos, and drugs of a number of varieties were readily available, and where they were groomed into sexual interaction with Mr Ford by exposure successively to male pornography, rituals, mutual masturbation, oral sexual intercourse, and ultimately anal sexual intercourse.
[77]
[43] The learned judge who ordered that the drug charge be tried with the sexual abuse charges was correct in that ruling, and in the reasons given. Those were expressed as follows:
[78]
"The Crown case is that the applicant had set up premises at Windsor and Sunnybank with the intent of facilitating the sexual exploitation of teenage boys by means that would attract them to the premises and once there, make them more susceptible to abuse. It is a common characteristic of the counts of drug offences, involving Mr F or otherwise, that the applicant was intent upon some sexual exploitation of the complainant, when supplying him with the relevant drug. In my view a sufficient system or pattern of behaviour underlines the Crown case in relation to all counts such as to give the evidence of all counts a sufficient probative value in the proof of the [F] counts to make it admissible. The probative value of that evidence is not significantly diminished by the fact that the accused sometimes used one drug rather than another."[25]
[79]
[44] The learned judge making that ruling had referred to the degree of caution required, before joining charges for different offences, by the judgment of the High Court in De Jesus v The Queen[1986] HCA 65; (1986) 61 ALJR 1; and to the undoubted fact that sexual cases are particularly likely to arouse prejudice in a jury, very difficult to counter by giving a direction to the jury, and to the necessity to ensure that the evidence in relation to all alleged offences was admissible in respect of each count, before joinder of that count could be considered proper. That approach was recently authoritatively endorsed by the High Court in Phillips v R[2006] HCA 4; (2006) 224 ALR 216. That decision reminds of the need for evidence admitted as similar fact evidence to possess a particular probative quality having a strong degree of probative force, giving it a really material bearing on the issues to be decided, and clearly transcending its merely prejudicial effect. In my opinion the account given by each complainant had that particular probative quality, demonstrating the pattern of behaviour described by the learned judge authorising the joinder of the charges.
[80]
[45] As Keane JA has observed, the only complaint argued on appeal was the joinder of the charge involving offences committed at the Wilston premises with charges of offences committed at the Sunnybank premises of Mr Ford. The continued presence of G and the continuation of Mr Ford's described modus operandi, particularly with its distinctive feature of involving the teenage youths in rituals directed by him as a precursor to sexual conduct, made it irrelevant to distinguish between the two sets of premises. I accordingly agree with Keane JA that the complaints about joinder should be dismissed.
[81]
[46] I agree with Keane JA that this was not a case in which any miscarriage of justice occurred as a result of not giving a Markuleski direction in explicit terms. The jurors were given many directions about credibility, described by Keane JA, including one that:
[82]
"I won't keep repeating the warnings about the inconsistencies in the evidence but once I have given you a warning about the inconsistencies in a particular complainant's evidence, you must take that into account when you deal with any of the specific charges that involve that complainant."[26]
[83]
That had been preceded earlier by a direction warning the jurors that it was dangerous to convict upon the complainants' testimony alone, unless after scrutinising it with great care, considering the circumstances relevant to which evaluation and after taking into account this warning, the jurors were satisfied beyond reasonable doubt of the truth and accuracy of such evidence.
[84]
[47] The directions the jury were given, described by Keane JA, required them to consider both the credibility or lack of it of each complainant, and the evidence admissible on each count, considered as a separate count. The jurors did that, acquitting on one count involving G, five counts involving C, two counts involving A, and one involving F. They convicted on seven counts involving G, one involving C, seven involving S, five involving A, and two involving F. The jurors clearly distinguished between the strength of the evidence led by the Crown on each count, and were not overcome by the prejudice of the evidence led about drugs, nor about Mr Ford's general propensity to have sexual dealings with underage adolescent males. Each acquittal was a rational enough response to deficiencies of proof of particular counts, irrespective of the proven existence of a sexualised relationship between Mr Ford and that particular complainant. Thus the acquittal on count 2(G) is readily explicable by doubt as to whether he was then under 16. The acquittal on count 6(C) is readily explained by doubt that the sexual activity C described happened on the occasion when he first met both of G and Mr Ford, particularly because that evidence contradicted the sequence described by G, which included more "grooming" of C. The acquittals on counts 20 and 21, alleging respectively indecent dealing and an occasion of sodomy involving C, are explained by those counts being a description of the occasion of ritual when C was scalded with a substance put on him by Mr Ford. G's evidence did not support C's evidence of any sexual behaviour on that occasion, on which G was clearly present. The conviction on count 26, in which Mr Ford procured C to do an indecent act, reflects the jurors' acceptance of the evidence of both G and of MJ that there had been an occasion when Mr Ford, in effect, directed interactive sexual behaviour between MJ, G, and C, while photographing it.
[85]
[48] The acquittals on the counts alleging Mr Ford supplied cannabis to C are readily explained by the evidence of it being available from other users and sources, and the absence of specific evidence Mr Ford supplied it. The same observations apply to count 28 and 30, acquittals on counts alleging Mr Ford supplied cannabis to A. The evidence did not categorically identify Mr Ford as the source of supply on the specific occasions identified in the evidence, as compared to his generally being a source of supply of cannabis. All of those acquittals reflect the extent to which the jurors had been assisted by counsel and the trial judge in focusing on the specific occasions charged and not on a general propensity.
[86]
[49] That leaves the matter of the adequacy of the evidence on counts 32, 33, 37, 38, and 39, variously alleging the supply of psilocin and psilocybin to F, G, and A. Its nature has been described. The jurors could conclude that Mr Ford did drive or accompany teenaged youths to areas of Brisbane in which he instructed them on how to select what he described as "magic" mushrooms, identifying those as being "gold tops" and "blue meenies", and that he later supplied the three complainants (and others in the presence of each on the various occasions of supply) with mushrooms collected on those trips and prepared for consumption by Mr Ford by his cooking them in water on a stove. They could conclude that those who drank the concoction were physically affected by it in the way described.
[87]
[50] The jurors could conclude, with some lesser degree of confidence, that the mushrooms brewed by Mr Ford were the "gold tops" and "blue meenies" which Mr Ford had pointed out to the mushroom collectors. The Crown also led evidence from a Government Medical Officer, a Dr Osborne, that that doctor was familiar with the term "magic mushrooms", which referred to mushrooms containing the substance psilocybin which was supposed to have toxic effects, including hallucinations and disorientation, sensory deprivation, perception differences and alterations of the defences. It can cause muscle relaxation and lead to sleep.
[88]
[51] Dr Osborne did not describe the physical appearance of magic mushrooms, nor express familiarity with the terms the "gold tops" or "blue meenies", nor say that those were terms used to describe what he had understood as magic mushrooms. Assuming in the Crown's favour that both are varieties of magic mushrooms, the Crown did not lead evidence from Dr Osborne, that the effects described by that doctor, or those described by the complainants' in their evidence, would result only from consuming mushrooms which contained the chemicals necessary to create the drugs psilocin or psilocybin. In the absence of that evidence, I do not think that either the jury or this Court can make that assumption. The Crown established that Mr Ford supplied the complainant with brewed mushrooms described by him as magic mushrooms, but not that those mushrooms were necessarily the magic mushrooms described by the Government Medical Officer as having psilocybin, nor that the magic mushrooms supplied did have psilocybin. If the Government Medical Officer had described the physical appearance of mushrooms which contain psilocybin, and had that matched the description of "gold tops" or "blue meenies", then that would have sufficed to prove the Crown case. But absent that step, and absent evidence that the described effects result only from psilocybin, I consider that the Crown failed to prove those charges. Accordingly, those five convictions should all be set aside.
[89]
Application for leave to appeal against sentence
[90]
[52] If those five counts of supplying psilocin and psilocybin remained as convictions, then I would not disturb the sentence on appeal. The learned sentencing judge (accurately) described Mr Ford as lacking insight into the effect his conduct had on some of the complainants, as showing no remorse whatsoever, as having exploited G's vulnerabilities and those of S, and as having facilitated his own offending behaviour by the environment or haven that he created for impressionable teenagers firstly at Windsor and then at Sunnybank. The learned judge referred during the sentencing remarks to the collection of the magic mushrooms and consumption of the juice from them, and to Mr Ford having subsequently sought sexual contact with two of the boys who were affected by that drug. However, an examination of the judge's sentencing remarks shows that the learned judge was far more influenced in imposing sentence by the effect generally upon the complainants of the exploitative relationships they had experienced with Mr Ford. The judge imposed sentences of seven years imprisonment in respect of counts 3 and 4, involving anal sexual intercourse between G and Mr Ford, and eight years imprisonment on counts 14, 16, and 18, those being the counts on which Mr Ford was convicted of having anal intercourse with S, then aged no more than 13. The learned judge imposed sentences of six months on each of the "mushroom charges" to be served concurrently. Setting aside those five convictions does not alter the fact that Mr Ford clearly supplied mushrooms containing a drug to the respective complainants, intending that consumption would affect them, as it did. Setting aside those convictions does not sufficiently reduce Mr Ford's overall criminality to justify any interference with the head sentence.
[91]
[53] Mr Ford's general submission about the sentence was not actually an attack upon those eight year terms, but much more a complaint about the order that upon his ultimate release from imprisonment, he report his current name and address to the officer in charge of police at the nearest police station to his residence within 48 hours after being released from custody. He also complained of the further order that for the next 10 years he report any change of name or address within 48 hours of the change taking place to the officer in charge of police at the place nearest to that residence. Both those orders were made pursuant to s 19 of the Criminal Law Amendment Act1945 (Qld), then in force. They were based on a finding by the learned judge of satisfaction that a risk did exist that Mr Ford would commit a further offence of a sexual nature in relation to a child under the age of 16, which conclusion was justified by the evidence given at the trial, including Mr Ford's, a psychiatric report under the hand of a Dr Curtis, and the contents of a pre-sentence report. The latter expressed the opinion that without treatment, he posed a significant risk to the community, and the former report described him as treatment resistant and insightless into his own drives, psychology, and behaviours, with a basic narcissistic personality structure, which was one notoriously hard to modify. In the circumstances the reporting order was entirely justified. Accordingly, I would also dismiss the application for leave to appeal against sentence.
[92]
[54] I would order that the appeals against conviction be dismissed, except on counts 32, 33, 37, 38, and 39, on which the convictions should be set aside and verdicts of "not guilty" entered. I would dismiss the application for leave to appeal the sentence.
[93]
[55] KEANE JA: On 27 June 2004, the appellant was convicted after a trial by a jury conducted in the Supreme Court of Queensland of various sexual offences and offences relating to the supply of drugs involving five different teenage boys. The appellant was acquitted by the jury of a number of other such offences. He was sentenced to serve a number of concurrent terms of imprisonment. The length of these terms ranged between six months and eight years.
[94]
[56] The appellant desires to appeal against his convictions. Two grounds of appeal were pressed by the appellant's counsel. The first relates to the failure of the learned trial judge to discharge the jury on any one of several occasions when the appellant contended that the trial had miscarried. The second ground of appeal which was pressed by the appellant's counsel was that the learned trial judge erred in failing to direct the jury that:
[95]
"(a) if they had a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, whether by reference to his demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of his evidence generally;
(b) a complainant's failure to give any evidence on a count on the indictment which had been consequently discontinued also must be taken into account in assessing the truthfulness or reliability of his evidence generally."
[96]
[57] The Court was also provided with copies of written submissions prepared by the appellant himself as well as argumentative affidavits prepared by him in which he sought to agitate issues other than those argued on his behalf by his counsel. The appellant also made oral submissions in support of the additional arguments which he wished to advance. These submissions involved criticism of the decision to allow the joinder of all charges against him on the one indictment as well as the contention that the verdict of the jury was unreasonable. The submissions made by the appellant in relation to these grounds will be dealt with after the submissions put by counsel have been addressed.
[97]
[58] The appellant also seeks leave to appeal against sentence. The arguments advanced in this regard will be canvassed after the appeal against conviction has been considered.
[98]
[59] In order to address the issues which arise on the appeal against conviction, it is convenient at this point to summarise the allegations made against the appellant in each of the counts on which the appellant was convicted. I will then summarise the evidence which was adduced at trial in relation to those counts and the counts on which the appellant was acquitted. For the sake of clarity, I propose to summarise at this stage only that evidence which is necessary to enable the arguments advanced in relation to those grounds of appeal argued by counsel to be understood. I shall set out further aspects of the evidence which are germane to the arguments advanced by the appellant himself when dealing with those arguments.
[99]
The counts on which the appellant was convicted
[100]
[60] The offences were alleged to have occurred between 1 January 1989 and 1 December 1990. The allegations against the appellant were first brought to the attention of the Queensland Police in 1998 when the complainant G made a complaint about the appellant. After that, the police located the other complainants and obtained statements from them.
[101]
[61] The complainant G was born on 3 March 1973. The complainant C was born on 28 October 1975. The complainant S was born on 3 April 1976. The complainant A was born on 5 July 1975. The complainant F was born on 27 January 1973. There was another complainant, TI, but the Crown declined to proceed with the charges based on his complaints after TI had given evidence. TI was born on 22 January 1974.
[102]
The convictions on counts relating to complainant G
[103]
[62] In relation to the complainant G, the appellant was convicted of one count of indecent dealing with a boy under the age of 16 years (count 1). This count alleged that on a date between 1 January 1989 and 3 March 1989, soon after the appellant met G but before G's 16th birthday on 3 March 1989, the appellant showed G a pornographic video and masturbated in front of G in the bedroom of the appellant's unit at Windsor. The appellant then masturbated G and performed oral sex on G while masturbating himself.
[104]
[63] The appellant was convicted of having unlawful carnal knowledge of G against the order of nature, and of permitting G to do the same to him, after G had moved into the appellant's residence after G's 16th birthday (counts 3 and 4). It was alleged that G and the appellant each performed anal intercourse on the other in the lounge room of the unit at Windsor on a date between 1 January 1989 and 1 May 1989.
[105]
[64] The appellant was convicted of permitting G to have anal intercourse with him in bat caves outside Rockhampton in late 1989 on an occasion when the appellant and G were attending a political conference in Yeppoon (count 5).
[106]
[65] The appellant was also convicted on another count of permitting a child under 18 years to have carnal knowledge of him against the order of nature and a count of having carnal knowledge of a child under 18 years against the order of nature involving G (counts 35 and 36). These offences were alleged to have occurred at the appellant's shed at Sunnybank on 3 March 1990, the date of G's 17th birthday. After a party to celebrate G's birthday, the appellant and G engaged in anal intercourse with each penetrating the other.
[107]
[66] The appellant was convicted on one count of supplying dangerous drugs, psilocin and psilocybin, to a minor (count 37). It was alleged in the indictment that, on a date between 1 March 1990 and 1 June 1990, the appellant, G and another complainant F collected "magic mushrooms" containing these drugs at Enoggera. They returned to the appellant's shed at Sunnybank to consume them.
[108]
The convictions on counts relating to complainant C
[109]
[67] In relation to the complainant C, the appellant was convicted on a count of indecently dealing with a child under the age of 16 years (count 26). In November 1989, C was introduced to another man, MJ, at the appellant's unit at Windsor. MJ took a number of photographs of C and G simulating sexual acts with each other. The appellant was masturbating and encouraging them to engage in acts of anal and oral sex.
[110]
[68] It may be noted here in relation to C that the appellant was also acquitted of indecently dealing with a boy under the age of 14 years on a date between 1 January 1989 and 28 October 1989 (count 6). It was alleged that prior to C's 14th birthday, in a bedroom at the appellant's Windsor unit, the appellant and G kissed and fondled each other. The appellant was alleged to have then fondled C before having oral and anal sex with G. The appellant was alleged to have then performed oral sex on C.
[111]
The convictions on counts relating to complainant S
[112]
[69] In relation to the complainant S, the appellant was convicted of indecently dealing with a boy under the age of 14 years (count 10). It was alleged that, on a date some time in 1989, the complainant S went to the appellant's unit at Windsor.
[113]
S was playing video games in the lounge room when the appellant asked him if he wanted to watch pornography. The appellant then played a pornographic video on the television that S had previously been using to play video games. It was alleged that the appellant and G then sat on either side of S and masturbated themselves. It was alleged that the appellant started masturbating S while G licked S's nipples; and that the appellant then performed oral sex on S until he ejaculated and the appellant and G then masturbated themselves until they ejaculated.
[114]
[70] The appellant was convicted of indecently dealing with a boy under the age of 14 years and of having carnal knowledge against the order of nature with a child under the age of 16 years (counts 13 and 14). It was alleged that, at a time around S's 13th birthday, in April of 1990 in the lounge room at the Windsor unit, the appellant showed S a pornographic video, and each masturbated the other before the appellant performed oral sex on S. It was alleged that the appellant licked S's scrotum and anus. It was alleged that the appellant inserted a finger in S's anus, and when S complained, the appellant offered him amyl nitrate. It was alleged that the appellant then pulled S down onto his penis and penetrated S anally for a time before withdrawing and ejaculating; and that on this occasion S then had a shower and saw that he was bleeding from the anus.
[115]
[71] The appellant was convicted of, on another occasion, indecently dealing with a child under 16 years of age and of having carnal knowledge against the order of nature of a child under the age of 16 years (counts 15 and 16). It was alleged that some time in 1990, S needed money so he went to the Windsor residence where he and the appellant watched pornography when the appellant knelt in front of him and performed oral sex on him. It was alleged that the appellant licked S around his anus. It was alleged that the appellant provided S with amyl nitrate, inserted one finger and then another in S's anus before the appellant moved S onto his hands and knees and inserted his penis in S's anus. It was alleged that the appellant then withdrew and ejaculated on S's back.
[116]
[72] The appellant was also convicted on further charges of indecently dealing with a child under 16 years of age and of having carnal knowledge against the order of nature of a child under 16 years of age (counts 17 and 18). It was alleged that, in 1990, shortly after the occasion referred to in the preceding paragraph, the appellant showed S a pornographic video in the lounge room at the Windsor residence, masturbated S and performed oral sex on him. It was alleged that they then went into the bedroom where the appellant inserted his finger into S's anus before penetrating S with his penis. It was alleged that the appellant then had a shower and S stole the appellant's wallet and left.
[117]
The convictions on counts relating to complainant A
[118]
[73] In relation to the complainant A, the appellant was convicted on two counts of indecent treatment of a child under 16 years of age (counts 27 and 29). It was alleged that, on a date in 1990 at the appellant's shed at Sunnybank, the appellant provided A and others with cannabis which they smoked. It was alleged that the appellant put on a pornographic video and masturbated in view of the group before the appellant touched A's genitals on the outside of his jeans and put his lips on A's neck.
[119]
[74] The appellant was also convicted on a further count of indecently dealing with a child under 16 years of age (count 31). It was alleged that, on a date between 1 January and 1 May 1990, at Toohey Forest, the appellant and others including A sat around in a circle. It was alleged that the appellant asked the others to remove their clothes because they had to be naked "to be initiated", that A refused and the appellant tried to pull his pants down and grabbed A around the crotch before A pushed him away and walked off.
[120]
[75] The appellant was further convicted of supplying dangerous drugs, psilocin and psilocybin, to a minor (count 38). It was alleged that, around Easter 1990, A travelled with the appellant and others to Sparke's Hill Reservoir where they picked "magic mushrooms"[27] under the appellant's direction. It was alleged that they returned to Sunnybank where the appellant prepared the mushrooms and gave them to A and two others.
[121]
[76] The appellant was convicted on another count of supplying dangerous drugs to a minor (count 39). It was alleged that, at some time between Easter and August 1990, A again travelled with the appellant and others to Sparke's Hill Reservoir where they picked "magic mushrooms" under the appellant's direction. It was alleged that they returned to Sunnybank where the appellant provided the mushrooms to A and the others.
[122]
The convictions on counts relating to complainant F
[123]
[77] As to the complainant F, the appellant was convicted of supplying a dangerous drug to a minor (count 32). It was alleged that, at some time between 27 January and 1 July 1990, G introduced F to the appellant. F was 17 years of age at the time. It was alleged that a group including the appellant and F travelled to an area at Enoggera where they picked mushrooms under the appellant's direction. It was alleged that they returned to the appellant's shed at Sunnybank where the appellant boiled the mushrooms in a pot before straining them and mixing them in with tea and sugar which he gave to F.
[124]
[78] The appellant was convicted on a further count of supplying a dangerous drug to a minor (count 33). It was alleged that a few weeks after the incident referred to in count 32, F again accompanied the appellant and G to collect "magic mushrooms". Afterwards they returned to the Sunnybank shed where these mushrooms were consumed.
[125]
[79] G said that, in December 1988, he moved from New South Wales to live with his grandmother in her house at Windsor. In 1989, he was enrolled at Kelvin Grove High School. He met PA at the school at the beginning of 1989 during the school's orientation period. After two weeks of school, G and PA began wagging school together. PA invited G to the Windsor unit where he introduced G to the appellant. The appellant had a garage full of model trains and video editing equipment. After the initial meeting, G used to go to the Windsor unit on those days when he skipped school and play with the trains. G recalled that this occurred "pretty much daily" and that "it was more often that we would be there". G was uncertain about his sexuality and discussed such matters with the appellant. They also discussed religion. The appellant spoke to G of the "Great White Brotherhood", a group of people, including both the living and the dead, who could communicate telepathically with each other.
[126]
[80] G's evidence was that, within two weeks of meeting the appellant, the two of them began to watch pornographic videos on a regular basis. While watching these videos, the appellant and G masturbated. Within two or three weeks of this activity commencing, the appellant engaged in oral sex with G. This act provided the basis for the charge of indecent dealing contained in count 1. G was able to place this incident as having occurred before his 16th birthday because he was still living with his grandmother. In cross-examination it was suggested to G that he did not meet the appellant until 23 February 1989 and that no sexual acts could have occurred between G and the appellant until after his 16th birthday. In particular, G was cross-examined about evidence he gave in October 1991 in civil proceedings between the appellant and a finance company, Bridge Wholesale, to the effect that he had not met the appellant until the end of February 1989. When confronted with his previous statement, G said that he did not recall that evidence and that "at that point I was still under a lot of pressure by [the appellant], so in terms of what I was answering, I was answering in order to protect him ...". In relation to further questioning directed to whether G had earlier lied on oath, G claimed privilege against self-incrimination.
[127]
[81] In relation to count 2 on which the appellant was acquitted, G gave evidence about what was termed a ritual "initiation" into the Great White Brotherhood that took place on another occasion prior to G's 16th birthday at the Windsor unit. For the purposes of the ritual, G, PA and the appellant each wore robes and sat in a circle on the floor. Each of them then masturbated into a Chinese bowl. The appellant pricked their fingers, dripped their blood into the bowl, mixed the contents and then drank it. The appellant told G that he had now entered the brotherhood and that an eternal bond existed between them.
[128]
[82] According to G, sodomy first occurred after the appellant told G that they needed to "swap seed" in order to be brought closer together in the brotherhood. G gave evidence that the appellant explained this expression as requiring the appellant and G to ejaculate inside each other. G's evidence was that the incidents the subject of counts 3 and 4 occurred after G and the appellant had been chanting. G was naked and went down on all fours. The appellant stood behind him masturbating. G recalled that this continued until the appellant obtained an erection. He then put cream on G's anus and penetrated it with his penis while continuing to chant until he ejaculated. They then swapped positions with G then sodomising the appellant until he ejaculated. In his evidence-in-chief, G had said that this first act of anal intercourse between the appellant and G occurred before G's 16th birthday. He affirmed that proposition four times in cross-examination, even though it appeared to conflict with his statement to the police in September 1998, and his evidence at the committal proceedings in June 2001 that the "ritual" he described had occurred after he had turned 16 years of age.
[129]
[83] G's evidence was that he moved into the Windsor unit a couple of days after his 16th birthday. PA was then still living there. At first, G slept on the couch but then slept in the same bed as the appellant. Regular oral sex and sodomy ensued.
[130]
[84] In the last three months of 1989, PA moved into a house at Sunnybank owned by PF, a friend of the appellant. G and the appellant moved into a shed at the rear of PF's house at Sunnybank in December 1989 but, before that move, G and the appellant went to Yeppoon for a political conference which the appellant had to attend. It was on this occasion that the incident the subject of count 5 was said to have occurred. The appellant, G and another man visited a complex of bat caves that the appellant told G was a "lay centre" - a point on the earth where magnetic lines crossed so that there was a stronger "energy" there. The other man got G and the appellant into the caves even though they were shut. He then parted company with them. G and the appellant went into a smaller cave where they smoked cannabis. The appellant gave G instruction about "cosmic octaves". They took off their clothes and the appellant got onto his hands and knees. The appellant spat on his hand and rubbed it on G's penis. G then sodomised the appellant before ejaculating onto the appellant's back. The appellant consumed some of the ejaculate and then proceeded to masturbate until he ejaculated on the ground.
[131]
[85] In evidence which was arguably relevant to count 6, a count on which the appellant was acquitted, G said that some time in 1989, between March and Christmas, he introduced the complainant C to the appellant. C lived at Windsor behind G's grandmother's house. G said that the appellant showed C pornography. G said that he recalled an occasion when the appellant and C came out of the bedroom at the Windsor unit after they had watched a pornographic video. They suggested to G that he join them in watching another pornographic video in the lounge. All three of them then began to masturbate before the appellant proceeded to perform oral sex on both C and G.
[132]
[86] While G was living at Windsor, the appellant had introduced him to the complainant S. G gave evidence that the appellant and S engaged in sexual activities at Windsor, but he could not recall the circumstances. He did recall that he and the appellant had sex in front of S.
[133]
[87] In relation to count 26, MJ, a man G knew from New South Wales, visited the appellant in the latter part of 1989. C was visiting Windsor when the appellant directed a pornographic photo shoot where he had C, G and MJ perform various sexual acts with one another which were recorded on camera.
[134]
[88] G said that, at the end of 1989, he and the appellant moved into a shed at the rear of PF's house at Sunnybank because of the appellant's financial difficulties. At the shops across the road from PF's Sunnybank house, G met the complainant A, A's brother TA, the complainant F and a young woman KR. G formed a relationship with KR. As a result, his relationship with the appellant deteriorated and, in May 1990, G moved out of the shed.
[135]
[89] In evidence arguably relevant to counts 30 and 31, G said that the appellant also initiated A and TA into the brotherhood. The four of them went into bushland near Sunnybank where they smoked hash. The appellant fondled himself and then touched each of them on their genitals through their trousers. The appellant told TA to take his pants down and then sucked TA's penis. G said that he also saw the appellant approach A but he could not see what then transpired because it was dark.
[136]
[90] In evidence arguably relevant to count 33, G recalled that the appellant, F and himself drove to the end of Stafford Road and picked "magic mushrooms". They took them back to Sunnybank and cooked them and ate them. F lay on a bed and complained of hallucinations. The appellant then pulled down F's pants and sucked his penis. The appellant called G over and G also sucked F's penis. The appellant told them that it was good "to do mushrooms with people you know that you could feel safe with...".
[137]
[91] G gave evidence that, in March 1990, there was a party at Sunnybank on his 17th birthday. His parents attended this party. Cannabis and liquor were consumed. After the guests left, the appellant allowed G to sodomise him after he had sodomised G.
[138]
[92] G lived with KR and his parents from May to August 1990. He returned to live with the appellant in August 1990, but moved back to his grandmother's house in September and stayed there until January 1991. He said that he continued to have sporadic sexual encounters with the appellant after his 18th birthday until he was 22 years of age.
[139]
[93] The appellant's case at trial in relation to G's complaints was that no sexual contact occurred between them until after G had attained 18 years of age. According to the appellant, G did not move in with him until after the appellant purchased a business described as Handyburger or Handyburger Replayworld in June 1989. He admitted that he had sexual relations with G, but said that his first sexual contact with G was in late 1991 or early 1992. The appellant sought to explain his interest in, and relationship with, G on the basis that he took an essentially benevolent paternal interest in G.
[140]
[94] G's mother gave evidence that she met the appellant for the first time in September 1989. She first became aware that her son was wagging school in February 1989. She rejected the suggestion made by the defence that the appellant visited her in Sydney between 3 March and 6 March 1989 when the appellant supposedly discussed with her his desire to help G with employment.
[141]
[95] The complainant S began Grade 8 in 1989. He first met the appellant when he was in primary school. The appellant was a neighbour. Some years later, S became friends with the complainant C who went to the same high school. C took him to the Windsor unit for the first time in April 1989 telling him that it was a good place to wag school. S met the appellant again on his first visit to the Windsor unit. The unit was also the place where S first met G. S recalled he had enjoyed the opportunities available at the unit to eat well, play video games and use the appellant's train sets. S also recalled that he eventually ended up watching a large amount of pornography and engaging in sexual acts with the appellant, G and C.
[142]
[96] According to S, when he was still 12 years of age, he was watching a pornographic video. The appellant and G were each naked and were sitting on either side of him. They all began to masturbate and the appellant and G took turns at sucking S's penis. Both the appellant and G ejaculated on S. The appellant told S not to worry about it, and that the more he "did it" the more he would ejaculate.
[143]
[97] S also gave evidence that he was sodomised on many occasions. He said that the first occasion was around his 13th birthday. He had wagged school and gone to the Windsor unit. The appellant was home alone. He undressed S, sucked his penis, turned him around and rubbed cream on S's genitals and anus. He put his finger in S's anus. He then pulled S onto his penis and sodomised him until he ejaculated. S then went and showered. Before S left the unit, the appellant gave him $100 and said he could come back anytime he liked. S did not give evidence that, as the particulars of counts 13 and 14 alleged, the appellant had on this occasion licked his scrotum and anus or that when he showered he saw that he was bleeding from the anus.
[144]
[98] S said that he returned to the unit a few days later. Again the appellant was home alone. Together they watched pornography in the appellant's bedroom before engaging in mutual masturbation. S then got onto his hands and knees on the appellant's bed and allowed the appellant to sodomise him. S said that this occurred after his 13th birthday. S did not give evidence that, as the particulars of counts 15 and 16 alleged, the appellant licked him around his anus.
[145]
[99] The incidents alleged in counts 17 and 18 occurred approximately one month later at the Windsor unit. S and the appellant were again in the appellant's bedroom. On that occasion, S said that there was masturbation and oral sex before the appellant massaged S's back and rubbed his buttocks, masturbated him from behind, fingered his anus with some cream and sodomised him. When the appellant went to the bathroom, S stole his wallet, jumped off the balcony and never returned to the Windsor unit. It may be noted that S also gave evidence that jumping off the unit balcony was the only way a person could leave the Windsor unit without the assistance of the appellant or certain other persons. This was so, according to S, because the door to the unit required the entry of a security code before it could be opened. The appellant confirmed the existence of this security system when he gave evidence, though he went on to suggest that it was unnecessary to use a code in order to leave the unit.
[146]
[100] S recalled an occasion in early 1989 at the Windsor unit when, while he was playing video games in the lounge, he heard sexual sounds emanating from another room when only the appellant and C were there.
[147]
[101] S failed to give any evidence in relation to counts 11 and 12, which were two further counts of indecently dealing with a boy under 14 years of age. The prosecution did not proceed with those counts.
[148]
[102] The defence case in relation to S's complaints was that there had been no contact between S and the appellant in 1989 or 1990. The defence established that S had told the police that he was first sodomised when he was in Grade 9, and that he had said the same thing in evidence at the committal proceeding. S said that he had been confused about the years in which the incidents about which he had given evidence occurred and had not realised the importance of being precise about the dates on which certain events occurred.
[149]
[103] The complainant A attended a State high school in Brisbane from the beginning of Grade 8. Around Easter in 1990, he was sent to school in Warwick. His brother, TA, and another boy, TI, introduced him to the appellant, he believed, at the beginning of 1989. That introduction occurred at the shed at Sunnybank. It was a school day and A was wagging school. They spent the whole day at the shed. The appellant offered them cannabis which they smoked. The appellant showed them a pornographic video entitled "Bi and Beyond" which depicted homosexual and heterosexual acts. While they were watching it, the appellant began masturbating and suggested that the boys do the same. A declined. The boys then played on the computer. The appellant offered the boys some small blue pills before he tried to grope A through his shorts and kissed his neck. He asked A for sex and offered to suck A's penis. A said "no" and pushed the appellant away. This was A's evidence in relation to counts 27, 28 and 29. The appellant was acquitted of count 28 which charged the appellant with supplying cannabis to A.
[150]
[104] A said that on another occasion he met the appellant at Sunnybank and the appellant drove him and some others to Enoggera in the appellant's blue Citroen. There they collected "magic mushrooms" which they took back to Sunnybank. The appellant extracted a juice from the mushrooms and put it into coffee which A drank. As a result, he suffered hallucinations.
[151]
[105] A said that on another day they drove in the appellant's car to the same place and collected mushrooms again. They returned to the appellant's shed at Sunnybank and consumed the mushrooms. A again had hallucinations.
[152]
[106] A said that he visited the shed at Sunnybank frequently before Easter 1990. He saw G and F there.
[153]
[107] A gave evidence that, on another occasion before Easter 1990, he, the appellant, G and A's brother visited Toohey Forest. They had previously been smoking "hash" when the appellant raised the idea of a "ritual". They went to the forest in the appellant's Citroen. The appellant took candles and incense. Upon finding a suitable spot in the forest, they all sat in a circle and held hands. The appellant told them to take their clothes off. A did not do so and so the appellant tried to pull his pants off because he said A had to be naked to be initiated. A got up and walked away. Before they went to the forest, the appellant told A that G had been initiated. This evidence related to counts 30 and 31. Count 30 charged the appellant with supplying cannabis to A. On this count, the appellant was acquitted.
[154]
[108] The appellant's case at trial in relation to A's complaints was that the appellant had no contact with A until late October or early November 1990, that the ritual in the forest was not performed until 1992 or 1993 and that the appellant did not ever supply A with drugs in 1989 or 1990.
[155]
[109] The complainant F met the appellant through G's girlfriend KR. F first met the appellant at the shed at Sunnybank some time after June 1989 and several months before F's 17th birthday on 27 January 1990. F said that the appellant supplied a number of people, including F, A and A's brother with cannabis when they visited the shed. The appellant told F about "magic mushrooms" and where they could be obtained. One night, a couple of weeks after F's 17th birthday, F went with the appellant, G and another man to Enoggera in the appellant's Citroen (which F thought was tan or beige). They collected mushrooms under the appellant's direction and returned to the shed at Sunnybank where the appellant stewed the mushrooms and put them into tea in cups. F drank a cup of this mixture and proceeded to hallucinate for some hours.
[156]
[110] F had an especial recollection of the fourth time he "had mushrooms". On this occasion, F drove his car to Enoggera to collect mushrooms. G, TI and others travelled with him. The appellant took other people in his car. The mushrooms were stewed back at the shed at Sunnybank. After consuming the mushroom juice, A felt groggy and lay down on a bed. The appellant began to talk about gay sex. F recalled that he "tried to walk away" before the appellant pulled his pants down, pushed him onto the bed and sucked his penis until F ejaculated.
[157]
[111] F said that on one occasion he visited the shed to smoke cannabis. He and others sat on a bed, the appellant showed them a pornographic video and F woke up to find the appellant sucking his penis. The appellant asked F for oral sex but F refused. This evidence related to count 34 which charged the appellant with supplying cannabis to F. On this count, the appellant was acquitted.
[158]
[112] F said that the events about which he gave evidence occurred in the same year in which he helped G move his belongings to his parents' house.
[159]
[113] The defence case at trial in relation to F's complaints was that F first met the appellant around late April or early May 1990. The appellant said that he never supplied cannabis to F, took him to collect "magic mushrooms" or supplied him with mushroom juice. The appellant also said he had no sexual contact with F at all though he recounted an incident, said to have taken place in 1991, where the appellant was present when G was having sex with F.
[160]
[114] TI gave evidence. He said that he met the appellant in 1989 or 1990 when the appellant was living at the shed in Sunnybank. TI was friendly with A and F. The charges against the appellant in relation to TI concerned indecent films to which the appellant exposed TI while he was under the age of 16 years. Because TI said in his evidence-in-chief that these events occurred after he turned 16 years of age, the Crown did not proceed with counts 8 and 9 which related to these incidents.
[161]
[115] The complainant C knew S from school. In 1989, C was in Grade 9. C and his elder brother were taken to the Windsor unit by other boys early in 1989. C met G, and G introduced C to the appellant. On the day C met the appellant, he played on the video games the appellant owned. G then told C to play a pornographic video on the machine in the appellant's bedroom. G and C then watched the video, which was homosexual pornography. In evidence which related to count 6, a charge of indecent dealing with a boy under 14 years of age, C said that G and he were engaging in sexual conduct when the appellant came into the bedroom when they were both naked. The appellant played with G's penis, sucked G's penis and sucked C's penis. The appellant then sodomised G or allowed G to sodomise him. The appellant was acquitted of count 6.
[162]
[116] C said he visited the unit a couple of times a week but he was never there on his own with the appellant as it was only the chance of being with G that gave C any reason to go there.
[163]
[117] After C's 14th birthday, C and the appellant had been drinking. The appellant put on a black coat and began chanting about demons, claiming that C was possessed by one. He made C strip off and put "holy water" on C which burnt him. The appellant then told him to lie on a bed and the appellant and G then came in and fondled each other. The appellant then fondled C and then had C sodomise him. C recalled this as the first occasion on which he did this. These incidents were the subject of counts 19, 20 and 21 which charged the appellant with supplying cannabis to C, indecent dealing and permitting carnal knowledge against the order of nature. The appellant was acquitted on each of these counts.
[164]
[118] Towards the end of 1989, the appellant invited C to the Windsor unit and introduced him to MJ. G and S were there along with another boy. MJ photographed the appellant and others in various sexual poses. C said that the appellant masturbated the boys. He saw G sodomise the appellant. C said he posed for oral sexual positions. This evidence concerned counts 25 and 26. Count 25 charged the appellant with supplying cannabis to C. On this count, the appellant was acquitted.
[165]
[119] C gave no evidence in support of counts 22, 23 and 24 which charged the appellant with sodomy. The Crown did not proceed with these charges.
[166]
[120] The defence case at trial in relation to C's complaints was that the appellant never engaged in any sexual acts with C or supplied him with drugs.
[167]
[121] MJ said he came to Brisbane in November 1989 to see G who took him to meet C. The three of them then went to the appellant's house where they watched a video, and then MJ, C and G went to a bedroom where they engaged in sexual contact. The appellant came into the bedroom a number of times, dressed and undressed, holding a camera. He tried to take photographs, but C was not a willing participant.
[168]
[122] As has been noted, there were a number of charges on which the relevant complainant did not come up to proof, and the Crown discontinued the prosecution of those charges as a result. The learned trial judge directed an acquittal in respect of one charge.
[169]
[123] It is convenient to deal now with the first ground of appeal pressed by the appellant's counsel, which is that the convictions were unsafe and unsatisfactory because of the absence of appropriate directions from the trial judge about how the jury was to determine the weight to be given to each complainant's evidence in relation to each separate count alleged against the appellant.
[170]
[124] As the reasons of Spigelman CJ in R v Markuleski[28] show, the particular risk of unfairness, which needs to be addressed by the giving of a direction (which I shall refer to for convenience as a Markuleski direction) that any doubt which a jury "may form with respect to one aspect of a complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts",[29] is a risk which arises especially in sexual assault cases (albeit not peculiarly in such cases) with multiple counts involving a single complainant and a single accused where a jury's finding of not guilty on one or more counts is apt logically to damage the credibility of the complainant on other counts because there is "[i]mplicit in the ... acquittal ... a rejection of the complainant's account of the events which were said to give rise to [the] count" on which the accused is convicted.[30] This risk is apt to arise because, in such cases, "[t]here is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that [the complainant's] evidence was more reliable in relation to [the counts on which the accused was convicted] than it was in relation to [the counts on which the accused was acquitted]".[31] In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred.
[171]
[125] It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer "to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count."[32] The purpose of such a reference is to ensure fairness to the accused "in a word against word case"[33] by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count.
[172]
[126] Since it is the risk of this kind of unfairness to the accused which is the occasion for intervention by the trial judge in matters which are normally the province of the jury, it is necessary to be clear as to whether that risk has truly arisen. It should not be thought that it has been accepted in New South Wales the Markuleski direction is always necessary, or even desirable, as a counterweight to the "separate offences" direction required where an accused is being tried on more than one count.[34] In this Court in R v LR,[35] it was noted that:
[173]
"It is not a 'binding rule of law or procedure'[36] in this State that such a direction, which I shall refer to for convenience as a Markuleski direction, must always be given though it has been recognised as having been desirable in some instances. The desirability of giving such a direction has been questioned in other Australian jurisdictions. Sitting as a member of the Victorian Court of Appeal in R v PMT, Buchanan JA said:[37]
'I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. In my view, in this case it was well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel, without the necessity of the warning advocated by counsel for the applicant.'
'If a jury has been left with a reasonable doubt as to one count, either on the ground that the complainant may be lying or has exaggerated, I doubt very much that they would, as Buchanan JA has put it, need judicial encouragement to bear that factor in mind in considering a second count. On the other hand, the giving of the Markuleski direction may lead a jury to convict improperly on the basis that, having found the complainant inherently credible on one count, they may think it follows that they should also do so in considering another. The jury may well reason that if they are permitted to diminish the complainant's credibility on this basis, why then cannot they also enhance it by similar reasoning? The potential for the proposed direction to promote propensity reasoning tends, in my view, against the giving of any such direction.'
In Lefroy v The Queen,[39] Murray J, with whom Steytler and Miller JJ agreed, referred to the views expressed in and said that:
[174]
[127] In my view, the risk identified in Markuleski did not arise in this case for three reasons. First, this was not a case of "word against word" based on the evidence of a single complainant about a number of offences arising out of one episode of wrongdoing by a single accused.
[175]
[128] Secondly, there were in the present case aspects of the evidence which could logically have led the jury to acquit the appellant on some counts without that acquittal necessarily implying that such a conclusion damaged that complainant's credibility or reliability in relation to his account of the events which were said to give rise to the counts upon which the appellant was convicted. Thus, this case is not one like Markuleski itself, where the case for the prosecution depended solely on the testimony of a single complainant.[40] Nor is it a case like R v LR upon which the appellant's counsel placed reliance. In R v LR, the jury's verdicts of acquittal in relation to some charges necessarily implied that the jury had formed an adverse view of the reliability of a particular complainant's account of the incidents the subject of counts on which the jury brought in verdicts of guilty.[41]
[176]
[129] In particular in this regard in relation to the complainant G, count 2 on which the appellant was acquitted was a charge of indecently dealing with a boy under the age of 16 years. The conduct consisted of the appellant, G and another person masturbating until each ejaculated into a bowl placed on the lounge room floor of the Windsor residence. After adding blood to the bowl, the appellant drank the contents. The appellant gave evidence which largely corroborated the evidence of G, but the crucial issue was whether this had occurred before the complainant's 16th birthday on 3 March 1989. The appellant's evidence was that the incident occurred in 1993 or 1994. It will be recalled that G's evidence was that he met the appellant shortly after the start of the 1989 school year. The jury may well have entertained a reasonable doubt as to whether the event charged in count 2 occurred before 3 March 1989, while at the same time accepting that G was a credible and reliable witness in relation to the other counts about which he gave evidence. The jury may have been satisfied that the incident charged in count 1 occurred before G's 16th birthday, while entertaining a doubt that the bizarre ritual referred to in count 2 (which was clearly an occasion later than, and different from, that referred to in count 1) would have occurred so early in the relationship between G and the appellant. Further, the jury may have been more disposed to entertain a doubt in this regard because of the absence of evidence from PA, the other participant in the ritual.
[177]
[130] Count 6 alleged that the appellant indecently dealt with C, a boy then under the age of 14 years. C's 14th birthday was on 28 October 1989. In cross-examination, C agreed that he may not have met the appellant until between September 1989 and Christmas 1989. The jury could, therefore, have acquitted the appellant on count 2 while regarding C as otherwise truthful. In this regard, the appellant admitted that C visited the Windsor residence in 1989.
[178]
[131] C was the complainant in relation to counts 19, 20 and 21 in which the appellant was alleged to have performed an exorcism. According to C, G, the appellant and C "were all off their faces" as a result of smoking "pot": the appellant chanted about demons and doused C in "holy water" (apparently water mixed with lye) which burnt C. C said that all three were then involved in sexual acts. G's evidence was that he could recall the "exorcism" and all three of them sitting in a circle but he could not recall any sexual acts on that occasion. The learned trial judge reminded the jury of the inconsistency between C's evidence and that of G. Neither C nor G said that the appellant actually supplied a drug on this occasion. That the jury may have doubted C's reliability as to the occurrence of sexual acts on this occasion is not inconsistent with the jury regarding him as reliable in relation to his account of events on other occasions. This is particularly so given that C had admitted to being under the influence of "pot" when the ritual took place.
[179]
[132] Count 25 charged the appellant with supplying cannabis to C. This count was the subject of a directed verdict of not guilty. The evidence simply did not show that the appellant had actually provided C with the drug on the occasion that was the subject of this count. On the other hand, the occasion of this count was also alleged to be the occasion of the incident the subject of count 26. C and G each gave evidence of the incident which was the subject of count 26. MJ gave evidence which generally confirmed that this incident had occurred. There was thus a body of evidence supporting the jury's verdict on count 26, acceptance of which was not logically inconsistent with the acquittal on count 25.
[180]
[133] A was the complainant in relation to counts 27, 28 and 29. The appellant was convicted on counts 27 and 29 and acquitted on count 28. The latter was a charge of supplying A with cannabis. The appellant denied supplying A with cannabis, but he admitted that A might have seen pornographic videos at the Sunnybank shed "at some stage". The jury may have been content to prefer the appellant's evidence to that of A on the issue relating to the supply of cannabis, while accepting that the appellant did show A and others a pornographic video, masturbated in view of the group and indecently touched A.
[181]
[134] A was the complainant on counts 30 and 31. These counts concerned the same occasion. The appellant was acquitted on the former count which concerned the supply of cannabis to A. The highest that A's evidence came in this regard was that he was at the appellant's place "sitting around smoking hash". He did not say that the appellant supplied it to him. On the other hand, G gave evidence which afforded general support to A's allegation of the occurrence at Toohey Forest in that G was able to say that he saw the appellant approaching A after the appellant had performed a sexual act on TA. The acquittal on count 30 does not necessarily throw doubt on the conviction on count 31.
[182]
[135] F was the complainant in relation to count 34 which concerned the supply of cannabis by the appellant to F. Once again, the acquittal on this count is readily reconcilable with the convictions on other counts by reason of the circumstance that F did not actually give evidence that the appellant had supplied him with cannabis. It is this feature which explains the difference between the jury's verdict on this count and the convictions on the other counts of supplying F with a dangerous drug.
[183]
[136] Thirdly, the learned trial judge's directions to the jury were sufficient to obviate any risk that the jury might not appreciate that they should convict the appellant on a particular count only if they were satisfied beyond reasonable doubt of the reliability of the complainant's evidence relating to that count.
[184]
[137] The learned trial judge's directions to the jury were relevantly in the following terms:
[185]
"[The appellant] in this case is presumed to be innocent of each of the charges unless the prosecution can establish in respect of each of those charges that he is guilty of the offence charged beyond reasonable doubt ...
The prosecution has the burden of proving each of the elements of each of the offences beyond reasonable doubt having regard to the whole of the evidence that has been adduced in this trial relevant to that charge ...
You apply the same process of assessing the reliability and credibility of a witness's evidence to the defendant's evidence as you do to each of the witnesses. You don't treat the defendant any differently from the other witnesses; you go about the same process of weighing up the evidence and determining whether you accept the witness's evidence, reject it, or accept part of it and reject part of it.
...
Now, it is also a matter that you can take into account in assessing the credibility of [C] that he didn't give any evidence before you of the specific occasions that obviously gave rise to charges 7 and 22 to 24, and those charges were withdrawn from your consideration.
...
You may consider that confusion on [A's] part about when the events occurred affects the reliability of his evidence generally.
...
You have before you the 31 counts on the indictment. The starting point in applying the evidence is that you must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the essential elements of each of the charges.
You will return separate verdicts for each charge. The evidence in relation to the separate offences is different. We have got five different complainants, for a start, but we've got separate offences in respect of each of the complainants. And, so, it must be obvious to you that this is not a case of all or nothing. Your verdicts need not be the same in respect of the offences, they need not be the same in respect of the one complainant.
There are some specific directions I am about to give you about some discrete categories of evidence in this case and how you can use that evidence. There are three categories that I am going to discuss with you. The first is what we call uncharged sexual acts, the second is corroborative evidence, and lastly similar fact evidence. The reason I am telling you those names is just to give you some idea of where I am heading so you can relate what I am saying to the framework I have just given you.
[186]
[138] In the light of these directions, and having regard to the existence of rational bases in the evidence for the discriminating verdicts reached by the jury, one may safely conclude that the trial of the appellant was not unfairly affected by the risk that the jury did not appreciate that a doubt about some aspect of a complainant's testimony could or should lead to a doubt about the totality of that complainant's testimony. In the light of the directions given by the learned trial judge, no further direction of the kind discussed in Markuleski was either necessary or desirable. In my respectful opinion, this ground of appeal should be rejected.
[187]
[139] There were four applications made during the course of the trial to discharge the jury. The first was made when, in the course of the cross-examination by counsel for the appellant, the complainant G asserted, in an answer which was not responsive to the question, that the appellant had stabbed him before G moved back to live with his parents. The alleged stabbing of G was the subject of a separate charge which had yet to be tried. The learned trial judge ruled that the incident formed part of the factual matrix out of which the charges being tried had arisen, because it identified a stage in the breakdown of the relationship between G and the appellant, and that the appellant's counsel could, if he wished, seek to question G further on the issue with a view to remedying the prejudice to the appellant. The appellant's counsel took the opportunity to cross-examine G in relation to the circumstances of the altercation of which G had spoken, and established that G had received "injuries from a coffee cup that was broken". Subsequently, the appellant's counsel acknowledged that any problem in this regard had been "largely addressed by the cross-examination". In my opinion, the forensic advantage which G's outburst afforded the appellant's counsel, viz, to present G to the jury as a witness prone to engage in exaggeration, overwhelmed any possible prejudice to the appellant.
[188]
[140] The second application was made after the complainant S, in his evidence-in-chief, expressed frustration about having to give a precise description of an event when something similar was done to him "100 or 500 times". S became argumentative when the Crown Prosecutor, and then the learned trial judge, tried to control him. In the course of this, S suggested that the appellant may have given him money in return for sex because the appellant "felt bad" for "hurting" him. The learned trial judge declined to discharge the jury, ruling that any prejudice could be limited by directions.
[189]
[141] The complainant S, in the further course of his evidence-in-chief, became agitated when asked to describe one of the occasions on which the appellant had sodomised him and said "this is what happened ... I got fucking molested. I got raped". On this occasion, the learned trial judge remonstrated with S in the absence of the jury. Her Honour reminded S that it was necessary for him to give details of precisely what the appellant had allegedly done to him. In a case where S ended up giving evidence of three specific occasions of sodomy by the appellant, S's assertion that the appellant had raped him was not apt to cause the appellant any abiding prejudice.
[190]
[142] Later in cross-examination, S spoke of the appellant in vulgar terms. He was being cross-examined about an apparent inconsistency in his evidence. He had said in his evidence-in-chief that it was the appellant who had first sodomised him, and he was cross-examined as to whether he had previously said to police that a man named JK had been the first person to sodomise him. In unresponsive answers, S asserted that JK and the appellant were good friends and that they probably talked to each other about "what you've got to tell the kids".
[191]
[143] This culminated in a third application for the discharge of the jury. The learned trial judge rejected this application on the basis that statements by S provided to the appellant by the prosecution did mention that the appellant knew JK and that the case being put by the defence was that S was mistaken in attributing sexual molestation by JK to the appellant. Her Honour concluded that any prejudice that may have been done to the appellant could be remedied by appropriate directions.
[192]
[144] Towards the end of the Crown case after all the complainants except TI had given evidence, counsel for the appellant made a further application for the declaration of a mistrial. On this occasion, the grounds of the application were expanded to include assertions of prejudice to the appellant arising from the joinder of complaints, the changing of particulars as to when offences occurred, the withdrawal of counts which had not been the subject of evidence, S's failure to come up to proof in relation to the assertion that he bled from the anus after being sodomised by the appellant as well as S's unresponsive allegations of lack of consent and his previous outbursts. Counsel for the appellant also complained about vague evidence given by G in relation to uncharged acts.
[193]
[145] The learned trial judge rejected this application on the basis that the failure of witnesses including S to come up to proof, the withdrawal of charges by the Crown and the alteration of particulars were not necessarily forensically disadvantageous to the appellant, and that any prejudice to the appellant could be cured by appropriate directions to the jury.
[194]
[146] In this regard, the learned trial judge directed the jury as follows:
[195]
"I should also warn you not to be distracted by the outbursts of [S] and the couple of things which he said that were simply assertions or speculation on his part. There were matters that have been drawn to your attention as reflecting on the credibility or reliability of [S]. One of them was that [S] gave evidence of smoking a joint of cannabis sativa given to him by [the appellant] but his statement that was read out to him when he was cross-examined said this:
'I recall [T] and [SW] showed me some little marijuana plants [the appellant] was growing in a rectangular shaped planter pot on his balcony. I have never seen a bong or chopped marijuana at [the appellant's] unit.'
His explanation for that was that he was asked by the police about a bong but not asked about whether he had smoked marijuana there. So what you have to do is consider whether you accept that explanation for that discrepancy.
[S] gave evidence of the sorts of statements that [the appellant] would say about why he should masturbate and I will just refer you to his evidence on page 247. He was asked about line 38:
'Do you recall what any of those statements were that [the appellant] said to you?'
Now, this was when [S] was being cross-examined. He said:
'Okay. There was - there were statements as 'If you' - 'If you keep going after you come, and you come again a second time' - he said - 'you'll come more', and he said, 'And every time you pull yourself, you'll come more. Every time you have a wank you'll come more and more and your dick will get bigger and you'll start growing hair.' And that was - that was the sort of thing he'd tell me. Those actual words were what he'd tell me just about every time I'd be there.'
Then it was - it's already been drawn to your attention that that evidence of what [S] said he was told by [the appellant] was similar to the statements that he had attributed to [JK], someone else who molested him I think he said from the time he was about 10 years old until basically he was 16, and he gave a statement to the police about [JK] where he said, and this was how it was put to him when he was questioned at page 247 line 49:
'Well, in your statement against [JK], paragraph 17, you said that one of the things that [JK] said to you was he started to say that, 'It was okay to pull your dick. He said the more you do it, the bigger your dick will be and the faster it will grow.'
[196]
[147] These directions included reference to matters favourable to the defence. Insofar as they concerned S's abuse and disparagement of the appellant, they were sufficient to ensure that the members of the jury were not distracted from their constitutional function by S's assertions which they, no doubt, regarded as intemperate emotional outbursts of no weight in their deliberations.
[197]
The submissions argued by the appellant himself
[198]
[148] I turn now to address the submissions presented by the appellant himself. These submissions were presented in writing and orally. The material supplied to the Court in writing included hundreds of pages of argumentative affidavit material which the Court did not receive as evidence but treated as a submission by the appellant. I propose to address each separate issue agitated by the appellant in turn.
[199]
[149] The first ground of appeal pressed by the appellant himself is expressed as a complaint about the joinder of counts on the indictment. The general rule in this State, pursuant to s 567 of the Criminal Code 1899 (Qld) ("the Code"), is that an indictment must charge one offence only, and not two or more offences,[42] unless "those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose".[43]
[200]
[150] The original indictment presented against the appellant contained 68 counts. The sexual offences charged comprised 38 counts of indecent treatment of a child under 16 years, 12 counts of having carnal knowledge against the order of nature with a person under 18 years and one count of attempting to have carnal knowledge against the order of nature with a person under 18 years. The drug offences charged included nine counts of supplying cannabis sativa and seven counts of supplying psilocin and psilocybin. There was also one count of assault occasioning bodily harm while armed.
[201]
[151] The appellant brought an application pursuant to s 597A of the Code prior to the commencement of his trial seeking separate trials of the dug charges and the charges relating to the various alleged sexual offences. That section provides relevantly as follows:
[202]
"(1) Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person's defence by reason of the person's being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.
(1AA) In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion."
[203]
[152] The provisions of s 597A(1AA) of the Code are "congruent with a modification to the common law rules relating to similar fact evidence effected by the Evidence Act1977 (Qld), s 132A"[44] which provided:
[204]
"In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any."
[205]
[153] Section 597A(1AA) of the Code and s 132A of the Evidence Act were enacted by
[206]
s 110 and Sch 2 of the Criminal Law Amendment Act1997 (Qld), as a legislative response to the decision of the High Court in Hoch v The Queen[45] whereby similar fact evidence was ruled to be inadmissible on the basis that it was reasonably explicable as the product of collusion between complainants.
[207]
[154] The appellant's application for separate trials of the drug charges and the charges relating to sexual offences was refused by McMurdo J on 14 March 2003, although his Honour did order there be a separate trial of the one count of assault occasioning bodily harm that was then present on the indictment. The appellant seeks to press the submission that his Honour erred in reaching this decision.
[208]
[155] This Court has recently had the opportunity to consider the principles that are applicable to the exercise of the discretion granted by s 597A in the case of R v PV; ex parte A-G (Qld).[46] There, McMurdo P, with whom McPherson JA and Mullins J agreed, said that:[47]
[209]
"... because of the special potentiality for prejudice in trials of sexual offences (De Jesus v R[1986] HCA 65; (1986) 68 ALR 1) the charges can only be joined if the acts constituting the charge or charges involving one complainant would be admissible on the trial of the charge or charges concerning the other complainant: Hoch v The Queen ((1988) [1988] HCA 50; 165 CLR 292). The evidence of each complainant would be admissible on the trial of the offence or offences concerning the other only if there was no reasonable view of the evidence other than as supporting an inference that the respondent was guilty of the offence or offences charged: Pfennig v The Queen ((1995) [1995] HCA 7; 182 CLR 461, Mason CJ, Deane, Dawson JJ 482 - 483). In other words, the evidence will only be admissible if, when considered with the whole of the prosecution evidence, (assumed as truthful and reliable), it is reasonably capable of excluding all innocent hypotheses: R v O'Keefe ([2000] 1 Qd R 564, 573).
It follows that in determining an application for separate trials under s 597A Criminal Code, a judge must first determine the question whether the evidence on the charge or charges concerning one complainant is admissible on the charge or charges concerning the other."
[210]
[156] In relation to the question of whether the drugs charges should be severed from the indictment in the present case, McMurdo J concluded in relation to the drug charges involving the complainant F that:[48]
[211]
"... it seems to me that the particulars of all counts upon the indictment, putting on one side [the count of assault occasioning bodily harm], demonstrate a particular distinctive approach characteristic of this accused ... The Crown case is that the [appellant] had set up premises in Windsor and Sunnybank with the intent of facilitating the sexual exploitation of teenage boys by means that would attract them to the premises and once there, make them more susceptible to abuse. It is a common characteristic of the counts of drug offences, involving [F] or otherwise, that the [appellant] was intent upon some sexual exploitation of the complainant, when supplying him with the relevant drug. In my view a sufficient system or pattern of behaviour underlies the Crown case in relation to all counts such as to give the evidence of all counts a sufficient probative value in the proof of the [F] counts to make it admissible."
[212]
[157] His Honour adopted the same reasoning in relation to the drugs charges involving the other complainants. There can be no doubt that his Honour applied the right legal test in determining whether or not there should be an order for separate trials. Further, as his Honour noted, generally speaking, the evidence of each complainant tended to provide support for the evidence of the other complainants in the sense that their evidence went to establish that the appellant systematically preyed upon teenage boys by providing them with intoxicating substances and showing them pornography before involving them in various sexual acts. It went beyond showing merely that the appellant might engage in the supply of drugs on some occasions and in sexual acts with schoolboys on others.
[213]
[158] The direct linkage between the drug charges and the charges for the sexual offences meant that the evidence of the complainants tended to establish that the offences alleged to have been committed by the appellant bore a "striking similarity" that suggested a "particular distinctive propensity" on the part of the appellant to commit offences in a particular way.[49] To put this another way:
[214]
"... the real nature of the subject evidence was that it demonstrated an underlying unity, system or pattern in the appellant's conduct with respect to each of the complainants as to raise, as a matter of common sense and experience, the objective improbability of any particular offence charged, as having occurred other than as alleged by the prosecution - that is to say, that it tended to prove the commission of the offence charged. This was evidence of a particular distinctive propensity of the appellant, demonstrated by acts constituting particular manifestations or exemplifications of it, having specific connection with the issues for decision in this case. To put it in the terms of the judgment of Mason CJ, Deane and Dawson JJ in Pfennig at 482, the probative value of the evidence lay in the improbability of both complainants giving accounts of offences committed upon them by the appellant having that degree of similarity, underlying unity, system or pattern unless the offences occurred - or unless the evidence was concocted."[50]
[215]
[159] It should be noted here that the recent decision of the High Court in Phillips v The Queen[51] does not cast doubt on the correctness of this approach. Unlike the present case, in Phillips it was held that there was no "striking similarity, unusual features, underlying unity, system, pattern or signature".[52]
[216]
[160] In these circumstances, no miscarriage of justice can be said to have resulted from allowing the admission of this evidence during the appellant's trial. The submission that McMurdo J fell into error by not ordering that there be separate trials for the two different types of offence should therefore be rejected.
[217]
[161] The appellant now contends that the charges relating to offences alleged to have been committed at the Windsor unit should have been heard separately from those charged to have occurred at the Sunnybank shed. A severing of the charges on the indictment in this manner was not sought before McMurdo J. It is, therefore, difficult to see how it could now be relied on to criticise his Honour's decision in that regard. In any event, however, once it is accepted that the evidence relevant to all the drugs charges and the alleged sexual offences was relevant to establishing the appellant's modus operandi of using various means, including drugs, to win the trust of schoolboys with the aim of committing various sexual acts with them, the fact that these offences were charged to have been committed at two different locations is not a matter of real distinction.
[218]
[162] It follows that there is, in my view, no basis for a successful challenge to the appellant's conviction on this basis.
[219]
[163] The appellant contends that the jury's findings of guilt were unreasonable in a number of respects. To the extent that a substantial part of the appellant's argument in this regard involves assertions that witnesses for the prosecution lied in their evidence, and that the learned trial judge failed in her duty in not directing the jury that the witnesses had lied, these are not arguments which can be entertained. The truthfulness of witnesses is a matter for assessment by the jury. That is not to say that this Court may not identify inconsistencies or other difficulties with the evidence placed before it. What this Court may not do is act upon the mere assertion of an appellant that the evidence led against him at trial was untrue. The appellant advances a number of arguments in support of the contentions that the verdicts of the jury were unreasonable and that there was a miscarriage of justice.
[220]
[164] The appellant's first submission in this regard relates to the evidence identifying the motor vehicle allegedly driven by the appellant on the trips to find "magic mushrooms". The appellant's argument is that the credibility of the evidence of the complainants A, F and G was undermined by the demonstrated falsity of their evidence about the kind of car used by the appellant in 1990, particularly in relation to the obtaining of "magic mushrooms".
[221]
[165] In this regard, it has been seen that F's evidence was that the appellant drove to Enoggera in a tan or beige Citroen. A said that the appellant's car was a blue Citroen.
[222]
[166] The appellant's friend, PF, the owner of the house at Sunnybank, said in his evidence-in-chief that some time in 1990 the appellant bought a used blue or green Citroen. In cross-examination, PF agreed that the blue or green Citroen was not bought by the appellant until February 1991, and PF agreed that it was possible that the appellant did not use a Citroen in 1990. In re-examination, PF said that the appellant did not have a car in 1990.
[223]
[167] G said that when he met the appellant in 1989, the appellant had a dark blue Citroen which, he agreed, was repossessed in the latter part of 1989. In cross-examination, G denied that, when he first met the appellant, the appellant owned an inoperable sky-blue Citroen. G said that the appellant used a Citroen in 1990 although G did not know who owned it.
[224]
[168] The appellant's evidence was that he had owned a sky-blue Citroen, but had disposed of it before November 1988.
[225]
[169] At this point, it should be noted that one of the appellant's complaints as to the fairness of the trial relates to the failure of his counsel at trial to adduce evidence of registration records relating to the appellant's ownership or otherwise of a motor vehicle, and particularly a Citroen motor vehicle in 1990. In this regard, the appellant overestimates the significance of the evidence of registration. Because of the possibility that the appellant used a vehicle which was not registered in his name, the presence or absence of registration papers would not have resolved the conflict in the evidence (between that of PF in cross-examination and that of G, A and F) in the appellant's favour.
[226]
[170] The evidence of G supports, in a general way, the evidence of F and A as to the use by the appellant of a Citroen motor vehicle in 1990. It may be acknowledged that there were differences in the evidence but the significance of these differences, so far as the credibility of each complainant's evidence as to matters central to the charges against the appellant, was a matter for the jury. In this regard, the learned trial judge directed the jury's attention specifically to the different evidence which had been given in relation to whether the appellant had a car in 1990, saying:
[227]
"One matter that you might find helpful in assessing the credibility and reliability of the various witnesses, particularly those involved in the mushroom picking events, is the evidence about whether or not [the appellant] had a Citroen in 1990. There is evidence that [the appellant's] dark blue Citroen was repossessed in November 1989 after having become inoperable because of the accident in July 1989. There is evidence from [PF] and [the appellant] about the acquisition of the aqua Citroen in January or February 1991. Then you have got the various descriptions of [F], [A] of those two about what car they were taken in to go mushroom picking and elsewhere."
[228]
[171] The jury were well aware of the point which the appellant sought to make by reference to this aspect of the detail of the evidence given by the complainants. That the jury resolved that point against the appellant does not suggest that a miscarriage of justice occurred, either in terms of the fairness of the trial or the soundness of its outcome.[53]
[229]
[172] The second respect in which the appellant submits that the jury's findings of guilt were not reasonably open to it concerns the evidence that the "magic mushrooms" contained the dangerous drugs psilocin or psilocybin.
[230]
[173] In this regard, Dr Osbourne, a government medical officer, gave evidence that he was familiar with the term "magic mushroom" as referring to mushrooms which contain psilocybin which produces effects such as hallucinations and disorientation, muscle relaxation and drowsiness. In cross-examination, he confirmed that it was his belief that psilocybin can be distilled from the mushroom by boiling the mushroom in liquid and drinking the liquid but admitted that he was not actually aware of any tests where that had been done.
[231]
[174] There is said to be a difficulty in the prosecution case because of the absence of evidence explicitly identifying the "magic mushrooms" of which Dr Osbourne spoke with the "magic mushrooms" of which the complainants A and F spoke. The argument is that the evidence could not satisfy the jury beyond reasonable doubt that the species of mushroom used by F and A was the same species as that which Dr Osbourne said produce hallucinogenic effects by reason of the presence of psilocybin.
[232]
[175] The first point to be made here is that the appellant's argument appears to be premised, in part at least, on the assumption that the expression "magic mushrooms" is a descriptive term which has no sufficiently certain signification as a matter of ordinary language. That assumption may be unjustified given that the Macquarie Dictionary and the Oxford English Dictionary identify "magic mushrooms" as a colloquial term used to describe mushrooms with hallucinogenic properties.[54]
[233]
[176] Further, and more importantly, to the extent that the appellant's present argument is premised upon the possibility there are species of "magic mushrooms" so-called which do not contain psilocybin, the evidence does not justify this Court in entering upon such a speculation. The appellant did not at trial seek to identify a candidate, other than species spoken of by F and A, at least insofar as they spoke of "magic mushrooms" as "golden tops", as meeting the description "magic mushrooms". This expression was evidently familiar to Dr Osbourne and to the appellant himself. Indeed, the evidence of the appellant, when understood with that of A and F, tends to confirm that the expression "magic mushrooms" was used at least in respect of the "golden top" mushrooms which produced in F and A the characteristic symptoms of psilocybin.
[234]
[177] In that regard, A's evidence-in-chief was that the appellant showed him and others "how to pick magic mushrooms from the ground". A said that the appellant showed them "the difference between the golden tops and the blue meenies from a normal toadstool or a mushroom". A said that when he drank the strained juice of the mushrooms in coffee he "had very wild hallucinations, saw - saw my friends turn into smurfs and felt like [he] was moon walking round. Saw people's heads flying in different directions". In cross-examination, he said that "Golden tops were large round ones with a gold - gold top on them and blue meenies were smaller, pointy shaped mushrooms with blue underneath them". A said that he had "[b]oth golden tops and blue meenies".
[235]
[178] F said that the appellant had explained that "the magic mushrooms had a gold ring around the top of them". F said that the appellant had also mentioned "blue meenies. They were a small mushroom with a blue transparent stem." F said that after drinking the mushroom juice in tea, he hallucinated, "seeing spots ... and funny shapes". On one occasion, he felt "pretty woozy".
[236]
[179] The appellant's evidence in cross-examination was that in 1990 he knew of the hallucinogenic effects of "magic mushrooms", which were described in a book which he owned and which enabled him to distinguish the various types of mushrooms. In the course of cross-examination, to the effect that he had shown F the "mushrooms which would have the hallucinogenic effect", the appellant acknowledged that the golden top mushroom was "the common name used for it but there is a mushroom described in the book which is white and has a yellowy sort of section at the top ... I don't know whether its official name's golden top". He acknowledged that this was the mushroom said in his book to have hallucinogenic qualities. The appellant said that "probably - it is quite possible I even showed them the book and said, 'Look, here is what the results are', but I have never taken them mushroom picking in that sense".
[237]
[180] In summary on this point, the jury were entitled to infer that the "magic mushrooms" of which Dr Osbourne spoke, and which he said contained psilocybin, were the golden top mushrooms identified as "magic mushrooms" by the appellant to A and F. This conclusion is not affected by the circumstance that A said that he had also had "blue meenies" as well as the golden top variety.
[238]
[181] The next submission made by the appellant concerns his contention that the condition of his penis in 1990 meant that he was physically incapable of committing the offences of sodomy and indecent dealing with which he was charged. The appellant's contention was that he was, at the time of the alleged offences, so obese that his erect penis was internal to his body. The appellant tendered two photographs to support his evidence. These photographs became Exhibit 6.
[239]
[182] An associated complaint is that the learned trial judge failed to direct the jury in relation to the significance of this evidence. As to this latter point, it cannot be seriously suggested that the jury would not have had a lively awareness of this most unusual evidence and its significance. Whether the photographs, and the appellant's evidence as to when they were taken, were important in relation to the relative credibility of the appellant and the complainants was a matter for assessment by the jury.
[240]
[183] The appellant's evidence was that Exhibit 6, the photographs of his genital area, were taken either by himself or PF in about January 1990. PF could not recall taking the photograph. The only evidence as to when they were taken came from the appellant himself. The photographs were put to the various complainants in cross-examination. This elicited a variety of responses from non-recognition to broad agreement that they depicted the appellant's genital area at the time of the alleged offences, to denial that they were an accurate depiction of the appellant's genital area, just as the various complainants gave varying descriptions of the appellant's genitals. Once again, the significance of these differing recollections was a matter for the jury.
[241]
[184] Next, the appellant complains that counsel who represented the appellant at trial failed competently to present the appellant's case in accordance with his instructions. In relation to this complaint, it is important to emphasise immediately that it is now well established by decisions of the High Court that the appellant must show that trial counsel's conduct led to a miscarriage of justice and, in order to establish that there was a miscarriage of justice, the appellant must demonstrate that there could be no rational basis for those aspects of counsel's conduct of the case of which the appellant complains and that the appellant was deprived, as a result, of a fair chance of acquittal.[55] That, in my view, the appellant has failed to do.
[242]
[185] In relation to the appellant's complaint that the appellant's motor vehicle registration papers for 1989 - 1990 were not tendered, as I have already observed, the tender of such evidence would not have served to resolve in the appellant's favour the question as to whether the appellant used a Citroen motor vehicle in 1990.
[243]
[186] Further in this regard, the appellant complains that his trial counsel failed to establish that G had asserted, on an earlier occasion in the course of a civil trial, that he had met the appellant at a time later than that alleged by G in his evidence-in-chief. This criticism is without substance. In cross-examination of G, the appellant's counsel obtained G's acknowledgment that in G's evidence at the civil trial he had given evidence that he met the appellant a month or two after the start of the school year in 1989.
[244]
[187] Another complaint by the appellant in this vein was that his counsel at trial failed to tender a video taken in mid July 1989 which would have demonstrated that PA was then still living at Windsor. But in cross-examination G accepted that PA was still living at Windsor after July 1989. The tendering of the video would have made no difference to the state of the evidence.
[245]
[188] The appellant's next complaint in this regard was that his counsel had failed to tender documentary evidence to show that the appellant owned the Handyburger business from 14 June 1989 to 14 November 1989. It is difficult to see the point of this complaint. The appellant himself gave this evidence which was uncontradicted.
[246]
[189] The appellant also complains of his trial counsel's failure to call a witness GS; but the appellant identifies no evidence which GS could have given which would have supported the appellant's case in any material particular.
[247]
[190] The appellant complains that J, a detective involved in the investigation of the case against the appellant, was not pressed in cross-examination with the suggestion that J's conduct of the investigation had been such as to lead to the presentation of tainted evidence the product of collusion between the complainants. At first, the appellant seemed to assert that J had himself been a party to collusion between the complainants to adduce false evidence against the appellant. When the appellant was confronted, in the course of argument before this Court, with the difficulty of identifying a motive which would have made this conduct by J plausible, the appellant seemed to shift ground to suggest that J may have inadvertently led the complainants to get together to concoct their evidence. But the suggestion that the complainants' evidence was the concocted product of inadvertent conduct on the part of J is hardly more plausible than the suggestion that J deliberately connived at such concoction. That the appellant's counsel at trial chose not to imperil the appellant's credibility before he gave evidence by pursuing implausible lines of cross-examination with J was a perfectly understandable and reasonable forensic decision.
[248]
[191] The appellant also complains that his counsel at trial did not press upon S in cross-examination the suggestion that S had confused the appellant with JK. Unusually, in this case the appellant waived his privilege in relation to his instructions to counsel and placed his written instructions to counsel before this Court. Those instructions, insofar as they concerned S, contained no instructions to the effect that S had confused the appellant with JK. In any event, it is clear from the transcript of the evidence at the trial that the appellant's counsel did put to S that the appellant had never molested S and that S had confused the appellant with JK.
[249]
[192] The appellant's final complaint in relation to the trial involves assertions of bias against the learned trial judge. I have perused the appellant's complaints about statements made by the learned trial judge in the course of the trial. Her Honour's statements were either necessary interventions sparingly made to keep the complainants' and appellant's evidence focused upon the issues in the trial or scrupulously neutral comments about the evidence. The appellant's assertions come to no more than a complaint that the learned trial judge did not more vigorously emphasise to the jury aspects of the evidence which were favourable to the appellant. This fails to establish that a "reasonable layman would entertain for a moment the possibility that [her Honour was] unable to bring an unbiased mind to the discharge of her duties in relation to the trial of the appellant".[56] The appellant's assertions fall far short of an arguable, or even intelligible, basis for complaining that he was denied a fair trial by reason of the bias of the learned trial judge.
[250]
[193] A measure of the lack of substance in these complaints can be gleaned from a consideration of the appellant's contention that the learned trial judge should have been directed to disregard as "obvious perjury" the evidence of G in relation to counts 1 to 4 inclusive as a result of G's evidence in relation to the 1991 civil proceedings between the appellant and the finance company because of G's claim to privilege from self-incrimination. The appellant also complains that the learned trial judge repeated G's lies to the jury. Reference to the learned trial judge's direction to the jury shows that the appellant's complaints are entirely baseless. Her Honour said:
[251]
"[G] was cross-examined about differences between the evidence he gave at this trial and the evidence that he had given [in the 1991 civil proceedings], and I am not going to go through all of it, I just remind you that there was that cross-examination and it became apparent from the answers that [G] gave that there were differences in the evidence. Two of the matters on which there were differences were, firstly, when he met [the appellant]. In this trial [G] said that he met [the appellant] around mid-February 1989, but in the [1991 civil proceedings] he said he had not met [the appellant] before the end of February 1989.
Another matter where there was a difference was when [G] had moved into the [Windsor] unit. In this trial he said that occurred within a couple of days of his 16th birthday, but in the [1991 civil proceedings] he said it was after Handyburger or Replayworld started. Consider whether [G's] recollection would have been more reliable in 1991 when the [civil proceedings were] heard - I think it was October 1991 - than now. Consider the likelihood of [G's] explanation for his evidence being wrong in the evidence he gave in the [1991 civil proceedings], because that's what he actually said to you when he was answering Mr Green's questions, that his evidence was wrong in the [1991 civil proceedings], and he offered this explanation - because he was under pressure from [the appellant]."
[252]
There is no substance in the appellant's complaint on this matter.
[253]
[194] The appellant contends that the trial miscarried because he was medically unfit so as to be adversely affected in his ability to give instructions. In this regard, the appellant's complaint is that the effects of medication which he was taking to enable him to "remain calm and in control" meant that he was unable to:
[254]
"marshal [his] thoughts sufficiently to do all required of [him] at the last moment ... Repeated requests by [him] not to leave everything to the last moment were totally ignored by counsel".
[255]
[195] Those assertions do not warrant the conclusion that the appellant was not fit to plead or to give instructions. Criminal trials must be fair, but they are not required to be a comfortable or stress-free experience for those involved. The appellant was plainly able to testify on his own behalf. The extensive cross-examination of G is itself a powerful demonstration of the appellant's ability to marshal evidence and to give instructions for his own defence.
[256]
[196] The appellant also complains that a fair trial was impossible because of then pending investigations by the authorities into the conduct of the police officer who arrested the appellant, and because police had possession of legally privileged correspondence between the appellant and his lawyers, and this information was passed onto witnesses for the prosecution. None of these matters were raised at the trial. There is no evidence to support these assertions; but in any event these were not reasons for an adjournment of the trial.
[257]
[197] Finally in this regard, the appellant complains that a number of potential witnesses were not called by the prosecution. The appellant asserts that these people would have corroborated the appellant's evidence going to the credibility of complainants, especially G and S. No legal or evidentiary basis is articulated by the appellant to support the assumptions that evidence of these witnesses was necessary in order to ensure a fair trial to the appellant or that it was necessary for the prosecution, as opposed to the defence, to call them. The absence of these people from the witness box is consistent with a reasonable appreciation on the part of counsel for the prosecution and the appellant that the evidence of these people was unlikely to have a significant effect upon the outcome of the case.
[258]
[198] The appellant's contentions in relation to sentence are that the sentence was manifestly excessive in that the learned sentencing judge ordered, pursuant to s 19 of the Criminal Law Amendment Act 1945 (Qld), that the appellant report to police for a period of 10 years following his release from custody; and that the period of eight years imprisonment was imposed without any recommendation for early consideration of post prison community based release.
[259]
[199] The appellant was born on 26 March 1949. He was 39 to 40 years of age when the offences were committed. He was 55 years of age when he was sentenced.
[260]
[200] The learned sentencing judge made the reporting order on the basis that she was satisfied that the appellant posed a risk of committing a further offence of a sexual nature upon a child under 16 years.[57]
[261]
[201] A pre-sentence report prepared by the Community Correctional Officer and the acting Area Manager of Brisbane North Community Corrections opined that the appellant "was in complete denial regarding his offending. He demonstrated no empathy for victims and went on tangents when asked questions about his inappropriate conduct". The report went on to observe that the suitability of the sex offender treatment program which is available in prison depends on the offender's honest admission of his sexual offences, and concluded relevantly that "without treatment, given the serious nature of [the appellant's] offending and his present state of denial he poses a significant risk to the community".
[262]
[202] Dr F I Curtis, a psychiatrist, also expressed the opinion that the appellant "remains treatment resistant and insightless". He noted as a negative prognostic indicator that:
[263]
"[the appellant] dismissed any meaningful discussion of his sexuality. Regardless of whether [the appellant's] orientation is heterosexual or homosexual, his circumstances now require that he cooperate in identifying any hazardous, risky elements of his sexuality. This was not possible currently and has not been successfully addressed by his treating psychiatrist".
[264]
[203] In the light of these opinions, and the appellant's evident lack of remorse, there can be no disagreement with the conclusion of the learned sentencing judge that a risk does exist that the appellant will commit a further offence of a sexual nature upon or in relation to a child under the age of 16 years. Without successful treatment, which seems unlikely given the appellant's lack of insight and remorse, the community, and teenage boys in particular, will inevitably be confronted upon the appellant's release from custody with what Dr Curtis described as "the risky elements of his sexuality". It follows that, in my opinion, the learned sentencing judge did not fall into error by imposing the reporting condition that she did. The appellant's offending was serious and persistent. He is without remorse. There is no reason why it would have been necessary to consider ameliorating the sentence to be imposed by a recommendation that the appellant be considered for early release. I consider that the learned sentencing judge was correct to refrain from making a recommendation for early consideration for post prison community based release.
[265]
[204] The appeal against conviction should be dismissed.
[266]
[205] The application for leave to appeal against sentence should also be dismissed.
[267]
[206] DOUGLAS J: I have had the advantage of reading the reasons delivered by Keane JA, agree with them and with the order proposed by his Honour but wish to say a little more about the evidence on the charges relating to the supply of the dangerous drugs psilocin and psilocybin.
[268]
[207] Another reason for not speculating about the possibility that there are species of "magic mushrooms" that do not contain psilocybin stems from the terms of s 129(1) of the Drugs Misuse Act1986. It provides, in part, that:
[269]
"In respect of a charge against a person of having committed an offence defined in part 2 -
(a) it is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed;
(b) that person shall be liable to be convicted as charged notwithstanding that the identity of the dangerous drug to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug ..."
[270]
[208] Had this issue been raised at the trial then, no doubt, the effect of s 129(1)(b) would have been raised with the jury. In this case the dangerous drug said to have been supplied in breach of s 6 of the Act, which creates an offence defined in part 2, was particularised as "psilocin and psilocybin". The evidence of Dr Osbourne, coupled with the evidence of the effects on the complainants of what was supplied to them and the appellant's own evidence, was enough, had it been treated as relevant to the issue potentially arising under s 129(1)(b), to satisfy the Court that what was supplied to the complainants by the applicant was a dangerous drug and most probably psilocybin because of the similarity of the effects on the complainants with the likely effects described by Dr Osbourne and the derivation of the fluid supplied to them from mushrooms of the type described. The absence of any other evidence on the point means that there would have been no reason to pursue that issue further at the trial.
[271]
[209] The issue is similar to that addressed in R v Burdett(1820) 4 B & Ald 95, 121-122; 106 ER 873, 883 by Best J as follows:
[272]
"But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just."
[273]
[210] See also Abbott CJ at 161-162; ER 898 and Holroyd J at 140; ER 890. Those passages were discussed with approval in Weissensteiner v The Queen[1993] HCA 65; (1993) 178 CLR 217, 225, 233 and 242-243 in the context where the accused, unlike this case, had not given evidence. The later decisions in RPS v The Queen[2000] HCA 3; (2000) 199 CLR 620 and Azzopardi v The Queen[2001] HCA 25; (2001) 205 CLR 50 distinguished and explained Weissensteiner in the context of the failure of an accused to give evidence. RPS and Dyers v The Queen[2002] HCA 45; (2002) 210 CLR 285 also dealt with the legitimacy of the giving of a Jones v Dunkel direction in criminal trials. In Dyers Gaudron and Hayne JJ criticised the mode of reasoning spoken of in R v Burdett as depending upon a premise that "the person concerned not only could shed light on the subject but also would ordinarily be expected to do so"; see 210 CLR at 292-295, [9]-[18].
[274]
[211] Here, however, in the statutory context established by the terms of s 129(1)(b) of the Act and where no issue was taken at the trial whether evidence to the appropriate standard of the supply of a dangerous drug had been led, it seems to me to be appropriate to treat the evidence that was led as enough to satisfy the Court below that the thing to which the charges related was at the material times a dangerous drug.
[275]
[1] See Nudd v The Queen[2006] HCA 9 at [2], [22], and [24]-[25], [81] and [151]
[25] At page 84 of the record of pre-trial proceedings.
[278]
[27] The term "magic mushroom" is a colloquial one used to describe those mushrooms which contain psilocybin, a hallucinogenic substance: see The Macquarie Dictionary (3rd ed, 1997) at 1295. In the Oxford English Dictionary Online (2006), the term is defined as "any of several types of mushroom with hallucinogenic properties, esp one containing psilocybin".
'I am in respectful agreement with that point of view and would not be prepared to follow Markuleski on this point. It seems to me that the jury do not need help to understand that their decisions about the credibility and reliability of the complainant generally will have an overall impact upon their assessment of the extent to which, if at all, they are prepared to rely upon the evidence of the complainant in considering whether or not the evidence as a whole persuades them of the accused person's guilt beyond reasonable doubt in respect of all or any of the offences charged. I see no reason to give a direction which assumes that the jury will react adversely to a challenge to the credibility of the complainant. And rather than promoting a fair trial it seems to me that a direction of the kind envisaged by the NSW Court of Criminal Appeal may work an injustice to the complainant. On the other hand, I agree that it would be difficult to control the way in which the jury might use such a direction in a form of propensity reasoning, impermissibly, in a way which would be adverse to the accused.'"
I am going to deal firstly with uncharged sexual acts. You are familiar now with the fact that the defendant is charged with only the 31 offences which are set out in the document which you have of which 21 what we would describe as sexual type offences. Now, in addition to the evidence of the respective complainants concerning the offences that remain charged on the indictment involving that complainant, you have also heard evidence from that complainant of other alleged incidents in which he said sexual activity involving the defendant and himself occurred, and that evidence of the complainant was not specific about when that activity occurred or in what circumstances.
Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only. If you accept the evidence, it shows, according to the prosecution, the true nature of the relationship between the defendant and the relevant complainant, thus placing the events the subject of the specific charges in their proper context. So this uncharged sexual acts evidence in respect of any particular complainant you treat as sort of background evidence that then gives you a framework when you are looking at the specific evidence of that complainant, and anyone else for that matter, relating to the specific charges, so that you can evaluate those events that are said to be the subject of the specific charges in their proper context.
You should have regard to the evidence of the incidents not the subject of charges only if you find it reliable. If you accept it, you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he is charged. It would be quite wrong for you to reason you are satisfied he did those acts on other occasions, therefore it is likely that he committed one of the specifically charged offences.
Remember that the evidence of incidents not the subject of charges can be used for the limited purpose of showing the true nature of the relationship between the defendant and the relevant complainant and before you can find the defendant guilty of any charge, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge.
If you do not accept the evidence relating to incidents involving the particular complainant not the subject of charges, take that into account when considering the complainant's evidence relating to the alleged events the subject of the charges before you.
...
Now, what I thought I'd just go back and do, I'd just run through some of the matters that counsel referred you to that you should take into account in considering the reliability and credibility of [S]. I am sorry that I missed that out when I was running through the witnesses before. Because I did have quite a bit prepared for you and that's because there were a number of aspects of [S's] evidence where there were variations between his evidence at this trial and his statements or evidence given in the committal hearing. One that Mr Green referred you to and I wanted to draw your attention to was it is apparent from the particulars given in counts 13 and 14 that [S] had previously stated that the events that are the subject of those charges, of which he had given evidence earlier, occurred around his 14th birthday in April of 1990 when he was in year 9. So you will see that on the particulars, it was around his 14th birthday in April of 1990.
His evidence in this trial was that his contact with [the appellant] was throughout 1989 and the acts of which he gave evidence that formed the basis of counts 13 and 14 occur around his 13th birthday in April of 1989, when he was in year 8. He gave an explanation of the discrepancy as being that when he gave his statement to the police and his evidence on the earlier occasion, he was more concerned with telling what happened rather than pinpointing dates with accuracy and he was also uncomfortable about giving evidence at the committal hearing.
Detective [J] was the police officer who took [S's] statement. He gave evidence of how he would have obtained the date of an event from [S] and you may consider that Mr [J's] evidence did not reflect the process that [S] described to you that he went through when he gave his statement." (emphasis added)
[S's] answer, 'They must all think alike then.'
Ignore as speculation the explanation that was also offered by [S], 'They probably talked about it and said this is what you have got to tell the kids.' That was just simply speculation on [S's] part.
[S] said that in 1989 he was taken to [the appellant's] unit by [C] and that the first offence against him - and that's count 10 - occurred before his 13th birthday in April of 1989, yet you have got [C's] evidence supported by his mother that he met [the appellant] in September 1989. There was no evidence given by [S] in relation to events of which he'd obviously given information to the police and the prosecutor before which resulted in counts 11 and 12 and they have been withdrawn from your consideration, and Mr Green reminded you that with respect to counts 13 and 14, [S] did not give evidence of the detail in the particulars that [the appellant] licked his scrotum and anus, that [S] protested when [the appellant] inserted a second finger in his anus, or that he was - or that he noted that he was bleeding from the anus when he had a shower. And with respect to counts 15 and 16, [S] did not give evidence of being licked around his anus when that detail had been provided in the particulars."